REVIEW OF CIVIL CASES
DECIDED BY THE
VIRGINIA SUPREME COURT
September 2003 to June 2004
Jane Marum Roush
Judge, 19th Judicial Circuit Court
I. CIVIL PRACTICE AND PROCEDURE
1. Service of Notice of Motion for Judgment
Lifestar Response of Md. v. Vegosen, 267 Va. 720, 594 S.E.2d 589 (2004)
The savings provision of Code § 8.01-288 did not cure the plaintiff‟s failure to serve the
defendant with a notice of the motion for judgment, even though the defendant had actual notice
of the proceedings.
Vegosen filed a motion for judgment alleging she was injured when she was transported
by an ambulance owned by the defendant. The originally-named defendant specially appeared
and successfully argued that it was not the correct defendant. Vegosen filed an amended motion
for judgment against the proper defendant, Lifestar Response of Maryland, Inc. A private process
server served Lifestar with a copy of the amended motion for judgment, but not the notice of
motion for judgment required by Rule 3:3. Lifestar did not respond to the suit, and a default
judgment was entered for $100,000. Lifestar moved to set aside the default judgment, arguing
that it was never properly served in that it was never served with the notice of motion for
judgment. The trial court denied the motion to set aside the default judgment, ruling that Lifestar
had actual notice of the proceeding.
The Supreme Court reversed. “The plain language of Rule 3:3 mandates that the notice
of motion for judgment to be served on the defendant has two constituent parts, both of which are
required to constitute „process‟: a copy of the motion for judgment and the notice issued by the
clerk.” Receiving a notice of motion for judgment is the sine qua non to having been served with
process. Without the service of process, the court acquires no jurisdiction. The trial court had
no jurisdiction to enter the default judgment. The savings provision of Code § 8.01-288 does not
apply in this case. That statute provides that “process which has reached the person to whom it is
directed within the time prescribed by law, if any, shall be sufficient although not served or
accepted as provided in this chapter.” Here, “process” never reached Lifestar, because “process”
is both the motion for judgment and the notice issued by the clerk. Code § 8.01-288 is designed
to cure defects in the manner in which process is served. It cannot cure defects in the process
2. Parties; Infant Plaintiff; Suit by Next Friend
Herndon v. St. Mary‟s Hospital, 266 Va. 472, 587 S.E.2d. 567 (2003)
An infant‟s medical malpractice suit brought by his mother, as next friend of the minor,
was not brought by the minor as required by Code § 8.01-8. Therefore, the suit was properly
Matthew Herndon allegedly suffered injuries as a result of medical care rendered before
and during his birth. Matthew‟s mother filed a medical malpractice suit naming as plaintiff
“Debbie Thompson Herndon, as mother and next friend of Matthew McNeil Herndon.” The
hospital moved to dismiss the suit, arguing that it was not brought by the minor child. The trial
court granted the motion to dismiss.
The Supreme Court affirmed. Code § 8.01-8 provides that: “Any minor entitled to sue
may do so by his next friend. Either or both parents may sue on behalf of a minor as next
friend.” The second sentence of that statute was added in 1998. In Kirby v. Gilliam, 182 Va. 111
(1943), the Court held that “it is well settled that . . . an infant‟s suit must be brought in his name
and not that of the next friend – that is, the infant and not the next friend must be the real party in
interest.” The Court held that the 1998 amendment to the statute reflects the General Assembly‟s
intent to clarify that either or both parents may initiate a single action as their child‟s next friend.
Nothing in the amendment manifested an intent to confer on parents the status of a real party in
interest in their minor child‟s action.
3. Counsel of Record
Walker v. American Ass‟n of Professional Eye Care Specialists, 268 Va. 117, 597
S.E.2d 47 (2004)
An attorney who delivers a pleading signed by a pro se plaintiff to court for the purposes
of filing the pleading is not thereby counsel of record in the case.
Walker consulted Attorney Cohen about representing her in a medical malpractice action.
Cohen declined to take the case. Later, Cohen arranged for the delivery to the clerk‟s office of a
motion for judgment signed by Walker as a pro se plaintiff. (Cohen had not drafted the motion
for judgment.) Cohen included a cover letter with the motion indicating that it was to be filed on
behalf of Walker. Cohen‟s cover letter did not state that he represented Walker in the matter.
The defendant moved to strike the pleading because it was not signed by Cohen, whom the
defendant contended was representing Walker in the matter. The trial court granted the motion
to strike and dismissed the action with prejudice.
The Supreme Court reversed. As a matter of law, Cohen was not Walker‟s counsel of
record. Under Rule 1:5, counsel of record is a party or attorney who has signed a pleading in the
case or who has notified the other parties and the clerk in writing the he appears in the case.
Cohen did not sign a pleading. His cover letter did not notify the defendant and the clerk that he
was appearing in the case. Cohen did not become counsel of record by forwarding the motion for
judgment to the court with his cover letter.
4. Collateral Estoppel; Res Judicata
Rawlings v. Lopez, 267 Va. 4, 591 S.E.2d 691 (2004)
Neither collateral estoppel nor res judicata barred passengers injured in an
automobile accident from pursuing their claims against the defendant after their driver‟s
suit against the defendant resulted in a defense verdict.
Rawlings and Crayton were passengers in an automobile that was involved in an
accident with Lopez. Rawlings, Crayton and their driver filed separate suits against
Lopez alleging personal injuries. The driver‟s suit went to trial first and resulted in a
defense verdict. Lopez then filed pleas in bar alleging that the two remaining suits were
barred by the doctrines of collateral estoppel and res judicata. The trial court sustained
the pleas in bar.
The Supreme Court reversed. Collateral estoppel did not apply because there was
no mutuality. Had the jury in the first suit found against Lopez, he would not have been
bound by that verdict in the subsequent suits against him. In addition, there was no
evidence of privity between the passengers and the driver who was the litigant in the first
suit. Res judicata also did not apply because there was no “identity of the parties”
between the suits. Rawlings and Crayton were not parties to the first suit, nor was there
privity between them and the driver, who was a party.
5. Declaratory Judgment
Green v. Goodman-Gable-Gould Co., 268 Va. 102, 597 S.E.2d 54 (2004)
The trial court erred in giving declaratory relief when it amounted to a determination of a
disputed issue rather than a declaration of the parties‟ rights.
The appellant homeowners engaged the services of Goodman-Gable-Gould, a public
insurance adjusting company, to assist them in dealing with Allstate after their house was
destroyed by fire. The homeowners later sought to discharge GGG. GGG refused to be
discharged and demanded that Allstate include GGG as an additional payee on any check paid to
the homeowners as a result of the fire loss. GGG also asserted a lien on any insurance proceeds.
GGG sought a declaratory judgment that it had an interest in the insurance proceeds and that it
was owed 10% of those proceeds. GGG also sought monetary damages for quantum meruit and
for breach of contract. When the date of trial approached, GGG nonsuited all but its request for
declaratory relief. The homeowners moved for summary judgment on the basis that declaratory
relief was not appropriate. After a jury trial, the court granted declaratory relief to GGG.
The Supreme Court reversed. Declaratory judgments provide relief from the uncertainties
stemming from controversies over legal rights, but they are not to be used as instruments of
procedural fencing, either to secure delay or to choose a forum. Where a declaratory judgment as
to a disputed fact would be determinative of issues, rather than a construction of definite stated
rights, status, and other relations, commonly expressed in written instruments, the case is not one
for declaratory judgment. In this case, GGG‟s actual objective was a determination of whether it
had substantially performed its obligations under the contract with the homeowners, rather than
an adjudication of the parties‟ rights. That issue, however, should have been litigated in the
context of a breach of contract claim. By nonsuiting that claim and seeking only declaratory
relief, GGG did not have to prove, by the greater weight of the evidence, a valid contract, a
breach of that contract by the homeowners, and damages resulting from the breach. GGG was
using the declaratory judgment as an instrument of “procedural fencing.”
Orbe v. Johnson, 267 Va. 560, rehearing denied, 267 Va. ___ (2004)
A condemned prisoner may not use a declaratory judgment action to challenge the
method by which the Commonwealth of Virginia intends to execute him. A declaratory
judgment action is not part of the criminal process and may not be used as a substitute for an
appeal or habeas corpus. In addition, there is no “actual controversy” because Orbe selected
lethal injection as the means of his execution by default when he failed to elect between lethal
injection and execution. Justices Lacy and Koontz dissented. They would have granted Orbe‟s
appeal and stayed his execution pending the United States Supreme Court‟s decision in Nelson v.
Campbell, 347 F.3d 910 (11th Cir.), cert. granted, ___ U.S. ___, 124 S. Ct. 835 (2003) in which
an issue is whether under federal law a prisoner can challenge the method of his execution
through a civil suit.
6. Statutes of Limitation
A. Fraud and Negligent Misrepresentation
Hansen v. Stanley Martin Cos., 266 Va. 364, 585 S.E.2d 567 (2003)
The trial court awarded summary judgment to a builder on homeowners‟ various claims
arising from the use of synthetic stucco on their house. The Court applied the Virginia statute of
limitations to the fraud and negligent misrepresentation counts. Under Code § 8.01-243(A), the
two-year statute of limitations begins to run from the date the misrepresentation is discovered or
by the exercise of due diligence reasonably should have been discovered. The trial court
correctly found that the homeowners‟ claims arising from the builder‟s representations that house
would be clad with stucco and that the stucco would require little or no maintenance were time-
barred. The trial court erred in finding as time-barred the homeowners‟ claims related to the
builder‟s misrepresentations that the stucco used was not the same that had caused problems in
North Carolina and would not have the performance problems that North Carolina houses
experienced. Reasonable persons could disagree over when the homeowners should have known
that those representations were untrue. Thus, summary judgment should not have been granted
on those claims.
B. Void and Voidable Acts
Kappa Sigma Frat., Inc. v. Kappa Sigma Fraternity, 266 Va. 455, 587
S.E.2d 701 (2003)
A challenge to a voidable corporate act is subject to the defense of a statute of limitations.
Plaintiff Kappa Sigma Fraternity is an unincorporated membership association founded in
1869 at the University of Virginia. In 1966, the Fraternity formed Kappa Sigma Fraternity, Inc.,
a Virginia non-stock corporation (the “Foundation”), for the purpose of holding title to the
Fraternity‟s property. In 1974, the Foundation‟s board adopted amendments to the Foundation‟s
articles of incorporation. The amendments, which were never ratified by the membership,
changed the purpose of the Foundation from holding property for the Fraternity to a general
charitable corporation intended to be exempt from taxation under IRC §501(c)(3). Over the
years, the Fraternity and the Foundation squabbled over various matters. In 1999, the Foundation
notified the Fraternity that it was selling the property the Fraternity used as its national
headquarters. The Fraternity and several individual members challenged the Foundation‟s
actions, including the 1974 amendments, in the trial court. The trial court rejected the
Foundation‟s defense of the statute of limitations and granted various remedies to the plaintiffs.
The Supreme Court reversed. The board‟s approval of the 1974 amendments to the
Foundation‟s articles of incorporation without membership approval was voidable, not void. A
challenge to a voidable corporate act is subject to the defense of the statute of limitations. A
contrary holding would result in “innumerable corporate transactions, imperfectly executed but
within a corporation‟s power to act, subject to attack in perpetuity.” Under any theory advanced
by the plaintiffs related to the 1974 amendments, the claims were barred by the statute of
limitations. Similarly, the Fraternity‟s assertion of an express trust and its request that the court
impose a constructive trust were time-barred. The statute of limitations begins to run on a claim
of express trust when the trustee denies or repudiates the trust and the trust beneficiary has actual
or constructive notice of the denial or repudiation, unless the trustee has committed fraud with
regard to the giving of notice. In this case, the trial court found no fraud. Therefore, the statute
of limitations began to run in 1974, when the Foundation notified the Fraternity that it was no
longer holding its assets for the benefit of the Fraternity. Because the Fraternity‟s claims were
barred by the statute of limitations, the chancellor erred in granting the various remedies sought
by the plaintiffs.
C. Inverse Condemnation
Richmede, L.P. v. City of Richmond, 267 Va. 598, 594 S.E.2d 606 (2004)
The statute of limitations for an inverse condemnation action is the three-year limitations
period for implied contract, not the five-year limitations period for damage to property.
Richmede owned two parcels in the City of Richmond. In 1999, the City vacated a public
street between the two parcels. Two months later, the City reconsidered the action and denied
the request to vacate the street. More than three years later, Richmede filed an inverse
condemnation action. The City filed a special plea of the statute of limitations, which was
sustained by the trial court.
The Supreme Court affirmed. The statute of limitations for an inverse condemnation
action is the three-year period for an implied contract, not the five-year period for damage to
property. Since 1919, the Supreme Court has consistently held that when the government fails to
condemn private land taken for public purposes, the landowner‟s recourse is to file an action for
inverse condemnation based on the implied contract between the government and the landowner.
The terms of the implied contract require the government to pay the landowner such amount as
would have been awarded if the property had been condemned under the eminent domain
statutes. An action for inverse condemnation is an action seeking redress for the government‟s
action in limiting the landowner‟s property rights. The act giving rise to the breach of implied
contract is not an act aimed at the property, but rather an act that limits the landowner‟s ability to
exercise his property rights without compensation. The mere fact that the measurement of that
compensation may be based on a decline in the value of the subject property does not make the
action one for injury to property for which the five-year limitations period would apply. (Justices
Koontz and Lemons dissented.)
7. Jurisdiction after Removal to Federal Court
Lewis v. C. J. Langenfelder & Son, 266 Va. 513, 587 S.E.2d 697 (2003)
The Supreme Court has no jurisdiction to consider an appeal of the circuit court‟s
dismissal of certain claims after the remainder of the case is removed to federal court.
Mrs. Lewis filed a wrongful death action against the defendant alleging claims under the
Jones Act and general maritime law. The circuit court granted the defendant partial summary
judgment and dismissed Mrs. Lewis‟s Jones Act claims. The defendant then removed the case to
federal court. The Supreme Court granted Mrs. Lewis an appeal on the issue of whether the trial
court properly dismissed the Jones Act claims. The federal court stayed its case pending the
resolution of the appeal, but did not remand the case to state court.
The Supreme Court ruled that it had no jurisdiction over the appeal. The removal of a
case from state court to federal court effects a transfer of the entire action to federal court. When
the defendant files the notice of removal with the state court, the state court shall proceed no
further unless and until the case is remanded. Any subsequent proceedings in the state court are
void ab initio. The actions of the state court prior to removal are not voided. The federal court
takes up the case where the state court left off. Therefore, the appeal was dismissed without
8. Remedies; Election of Remedies
Wilkins v. Peninsula Motor Cars, 266 Va. 558, 587 S.E.2d 581 (2003)
A plaintiff who prevails against a car dealer on claims under the Virginia Consumer
Protection Act and common law fraud is not required to elect his remedies. No double recovery,
however, is permitted.
Wilkins purchased a BMW from Peninsula Motor Cars in 1999. The car was represented
to be new. In fact, the car was a used car. Wilkins sued Peninsula under theories of common law
fraud and violations of the VCPA. The jury awarded Wilkins actual damages of $4,000 (trebled
to $12,000) under the VCPA. The trial court awarded him attorney‟s fees and costs of $34,183
under the VCPA. On the common law fraud claim, the jury awarded Wilkins $1,862.86 in
actual damages and $100,000 in punitive damages. The trial court ordered Wilkins to elect
between the two verdicts because, otherwise, he would be compensated twice.
The Supreme Court reversed. The case did not present irreconcilable causes of action
which would require Wilkins to elect between them, such as a claim for rescission of a contract
accompanied by a claim for specific performance. Rather, the case involved causes of action
with different elements of proof and potentially duplicative damages. In these circumstances,
Wilkins was entitled to full and fair compensation but not duplicative compensation. Wilkins
conceded that he was entitled to one award of compensatory damages, one award of exemplary
damages, and one award of attorney‟s fees. The Court held that Wilkins was entitled to $4,000
actual damages plus attorney‟s fees of $34,183 under the VCPA claim. Wilkins was entitled to
$100,000 in punitive damages under his fraud claim. “The trial court erred in requiring Wilkins
to choose between causes of action, when all that was required was supervision of the damage
awards to avoid double recovery.”
A. Nonsuit after Motion to Dismiss Submitted to Court
Atkins v. Rice, 266 Va. 328, 585 S.E.2d 550 (2003)
A motion for a nonsuit is not timely when a motion to dismiss has been submitted to the
trial court and the judge is announcing his or her ruling.
Rice filed suit against Atkins on February 14, 2001 alleging personal injuries from an
automobile accident. Rice requested service of process 11 ½ months later. On February 5, 2002,
the sheriff served Atkins by posting at her last known address. One day later, the new residents
advised the clerk‟s office that Atkins no longer lived there. On February 11th, Rice requested
service through the DMV. The Commissioner‟s certificate of compliance was filed on February
25, 2002, one year and eleven days after the suit was filed. Atkins‟s counsel entered a special
appearance and moved to dismiss. Rice opposed the motion. After the briefs had been submitted
and oral argument concluded, the judge began to rule. Sensing that things were not going his
way, Rice‟s attorney moved for a nonsuit, which was granted.
The Supreme Court reversed. To be timely, a motion for a nonsuit must be made “before
a motion to strike the evidence has been sustained or before the jury retires from the bar or before
the action has been submitted to the court for decision.” Here, the case had been submitted to the
court for decision. The case of Hilb, Rogal & Hamilton Co. v. DePew, 247 Va. 240 (1994),
which held that a party may move for a nonsuit when the judge is in the process of ruling, applies
only when the judge is ruling on a motion to strike, not a motion to dismiss that has been
submitted to the court.
B. Nonsuit after Remand for New Trial
Ford Motor Co. v. Jones, 266 Va. 404, 587 S.E.2d. 579 (2003)
The plaintiff may nonsuit its case after it has been reversed and remanded by the Virginia
Supreme Court before it is submitted to the jury in the new trial.
Plaintiff filed suit against Ford alleging serious personal injuries as a result of the “sudden
acceleration” of her automobile. The jury returned a defense verdict and the plaintiff appealed.
The Supreme Court reversed and remanded for a new trial. Prior to the start of the new trial, the
plaintiff moved for a nonsuit. Ford opposed the nonsuit, on the basis that the motion came too
late. The jury had already retired, albeit the jury in the first trial. The learned trial judge allowed
the nonsuit and the defendant appealed.
The Supreme Court affirmed. The plaintiff‟s submission of her case to the jury in the
preceding case did not have any effect upon the viability of her claims in the present proceeding
and her right to take a nonsuit. After a reversal on appeal and remand for a new trial, a litigant‟s
original rights are restored as though no previous trial had occurred, including the right to take a
nonsuit. The plaintiff‟s case had not been submitted to a jury, a motion to strike had not been
sustained, and the case had not been submitted to the circuit court for decision. Therefore, the
plaintiff was entitled to take a voluntary nonsuit.
C. Nonsuit; Time to Re-file Suit after Appeal to Supreme Court
Phipps v. Liddle, 267 Va. 344, 593 S.E.2d 193 (2004)
When the defendant appeals the grant of a nonsuit, the six-month period for re-filing the
suit starts to run when the trial court enters the mandate from the Supreme Court affirming the
grant of a nonsuit.
Phipps filed a personal injury action against Liddle in 2000. On December 15, 2000,
Phipps was granted a nonsuit. Liddle appealed the grant of a nonsuit to the Virginia Supreme
Court. The Supreme Court issued its mandate affirming the nonsuit order on March 1, 2002.
The trial court entered the mandate pursuant to Code § 8.01-685 on March 22, 2002. Phipps re-
filed his suit on August 15, 2002. The trial court sustained Liddle‟s special plea that the re-filed
suit was untimely in that it was filed more than six months from December 15, 2000, the date of
the original nonsuit order.
The Supreme Court reversed. Under Code§ 8.01-299(E)(3), the plaintiff must re-file his
suit within six months from the date of the “order entered by the court.” Under § 8.01-685, the
court “from which any case may have come to an appellate court shall enter the decision of the
appellate court as its own.” Here, the trial court entered the mandate from the Supreme Court on
March 22, 2002. It is that order which is the “order of the court” under § 8.01-299(E)(3) for the
purposes of commencing the six month period within which the plaintiff my re-file his nonsuited
action. In this case, Phipps re-filed his action within the six-month period.
D. Nonsuit by Proper Plaintiff; Nunc Pro Tunc
Brake v. Payne, 268 Va. 92, 597 S.E.2d 59 (2004)
When a plaintiff who has no standing to bring suit nonsuits the action, and the case is
refiled by the proper plaintiff, the proper plaintiff can nonsuit the refiled action. In that case, the
nonsuit in the refiled action is the plaintiff‟s first nonsuit by right.
Sias brought an assault action as the parent and next of kin of Calzada against Harrison, a
Charlottesville police officer. Harrison demurred, arguing that, because Calzada was dead, the
suit should have been brought by the executor or administrator of Calzada‟s estate. Sias
nonsuited. Later, Payne, the personal representative of Calzada‟s estate, filed an action against
Harrison and others asserting assault and other causes of action. Payne took no action to serve
the suit. Payne moved to nonsuit one day before the first anniversary of the filing of the suit, but
took no action to have the court rule on the nonsuit motion. While the second suit was still
pending, Payne filed a third motion for judgment alleging basically the same causes of action.
Payne served some of the defendants in the third suit, which was removed to federal court. Some
of the defendants appeared specially and objected to the nonsuit of the second action. The trial
court allowed Payne to nonsuit the second action and entered the nonsuit order nunc pro tunc to
the date 18 months earlier when she first submitted the nonsuit motion and proposed order to the
The Supreme Court affirmed the grant of the nonsuit, but reversed the entry of the order
nunc pro tunc. Because Sias lacked standing to bring the first action, it was a nullity. Sias was
not “substantially the same party” as Payne. The nonsuit of the first action had no effect on
Payne‟s absolute right to take one nonsuit in the second action. Nonetheless, the nonsuit order
should not have been entered nunc pro tunc.
[T]he purpose of a nunc pro tunc entry is to correct mistakes of the clerk
or other court officials, or to settle defects or omissions in the record so as to
make the record show what actually took place. It is not the function of such entry
by a fiction to antedate the actual performance of an act which never occurred, to
represent an event as occurring at a date prior to the time of the actual event, "or
to make the record show that which never existed".
Council v. Commonwealth, 198 Va. 288, 293 (1956). Here, the nunc pro tunc entry of the order
was improper because it created the fiction that the court had in fact acted on the nonsuit motion
when it was filed, instead of 18 months later. “A nunc pro tunc order may be used to make the
record speak the truth, but not to make it speak what had not been spoken, even though it ought
to have been spoken.”
10. Confession of Judgment; Nonsuit
AAA Disposal Services, Inc. v. Eckert, 267 Va. 442, 593 S.E.2d 260 (2004)
A confession of judgment for the amount of the ad damnum is not valid in the absence of
the plaintiff‟s willingness to accept that amount of principal and interest.
Eckert filed a motion of judgment against the defendants alleging personal injuries. His
ad damnum was $60,000. Eckert later moved to increase the ad damnum to $350,000. The trial
court denied that motion, as it came too close to the trial date. The defendants admitted liability.
The defendants then filed a confession of judgment, admitting that they were liable to Eckert for
$60,000 plus “plaintiff‟s costs and interest as allowed by law as pled in the original motion for
judgment.” The next day, Eckert moved for a nonsuit. At the time of the nonsuit, the confessed
judgment had not been docketed, a final order had not been entered, and Eckert had not
consented to the confessed judgment. The trial court granted the nonsuit and the defendants
The Supreme Court affirmed. Under § 8.01-431, a defendant may confess judgment for
“so much principal and interest as the plaintiff may be willing to accept a judgment or decree
for.” Here, although the confessed judgment was for the full amount of the ad damnum, there
was no evidence that Eckert was willing to accept the amount of the confessed judgment. For
example, the record was silent as to whether the confessed judgment included pre-judgment
interest and whether Eckert would accept a confessed judgment that did not include pre-judgment
interest. “In the absence of Eckert‟s willingness to accept the amount of the principal and
interest contained in the confession of judgment, we conclude that it was not valid and binding
on him.” Therefore, the trial court properly allowed Eckert to nonsuit.
11. Setting Aside a Default Judgment
Ryland v. Manor Care, Inc., 266 Va. 503, 587 S.E.2d 515 (2003)
The circuit court‟s judgment was not plainly wrong in setting aside a default judgment in
this medical malpractice action.
Defendant Manor Care was served with the notice of motion for judgment. Manor Care
forwarded the documents to its insurance company, PHICO. PHICO assigned an attorney to
represent Manor Care. Before responsive pleadings were filed, PHICO went into a rehabilitation
proceeding in Pennsylvania. The first attorney assigned to defend the case withdrew. A second
attorney was assigned, but he had a conflict of interest. A third attorney declined to take the case.
While PHICO scrambled to obtain counsel for Manor Care, the plaintiff obtained a default
judgment. Manor Care brought an independent action under Code § 8.01-248(D) to set aside the
default judgment. The trial court weighed the equities of the matter, and set aside the default
The Supreme Court affirmed. The elements necessary to set aside a default judgment are:
(1) a judgment which ought not, in equity and good conscience, to be enforced;
(2) a good defense to the alleged cause of action on which the judgment is
founded; (3) fraud, accident, or mistake which prevented the defendant in the
judgment from obtaining the benefit of his defense; (4) the absence of fault or
negligence on the part of the defendant; and (5) the absence of any adequate
remedy at law.
The trial court must articulate its findings with particularity regarding each of the five elements.
The Court concluded that the second counsel‟s failure to advise PHICO or Manor Care of his
conflict of interest until after the time within which responsive pleading were due was a mistake
that prevented Manor Care from having the benefit of its defense. Because the mistake
concerned the attorney‟s ethical duties, it was not akin to an attorney‟s negligent failure to file a
pleading by the deadline. The record supported the trial court‟s determination that neither Manor
Care nor PHICO was negligent or at fault. “As with a jury verdict, if there is evidence to support
a trial court‟s judgment rendered after receiving evidence ore tenus, this Court cannot simply
overturn that judgment and substitute its own judgment, even if its opinion might differ from that
of the trial court.”
1. Character Evidence; Prior Bad Acts
McMinn v. Rounds, 267 Va. 277, 591 S.E.2d 694 (2004)
A single bad act is not admissible to show the character of the plaintiff in an assault case
in which the defendant claims he acted in self-defense.
Plaintiff McMinn brought a civil action against Rounds alleging assault and battery.
Rounds was a bartender who was escorting McMinn out of the bar when an fight between the
two occurred. Each party claimed the other was the aggressor. Rounds claimed he acted in self-
defense. Over McMinn‟s objection, Rounds introduced evidence that, three and one-half years
earlier, McMinn was the aggressor in a “road rage” incident.
The Supreme Court reversed. In a criminal case in which self-defense is an issue,
“evidence of recent acts of violence toward third persons ought to be received, if connected in
time, place and circumstance with the crime, as to likely characterize the victim‟s conduct toward
the defendant.” The Court saw “no sound reason why this rule for criminal cases should not be
applied under the special circumstances of this civil case.” The rule, however, speaks of multiple
acts. A single bad act does not establish one‟s unfavorable character. While the evidence of a
series of bad acts may collectively be admissible to establish poor character, the conduct of a
single incident is insufficient.
2. Prior Bad Acts; Prior Negligence
Stottlemyer v. Graham, 268 Va. 7, 597 S.E.2d 191 (2004)
In a medical malpractice action, the plaintiff may not cross-examine the defendant doctor
about alleged past acts of medical negligence.
Stottlemyer brought a medical malpractice action against Dr. Graham. She claimed that
Dr. Graham failed to take her medical history, failed to conduct a physical exam and failed to
obtain her informed consent before performing an abdominal hysterectomy. The trial court
refused to allow Stottlemyer to cross-examine Dr. Graham on a variety of matters related to prior
acts of misconduct and medical negligence. The jury returned a verdict in favor of Dr. Graham.
The Supreme Court affirmed. A litigant may not cross-examine a witness about collateral
independent facts irrelevant to the issues before the trier of fact. The test as to whether a matter
is material or collateral, in the matter of an impeachment of a witness, is whether the cross-
examiner would be entitled to prove it in support of his case. A fact is wholly collateral to the
main issue if the fact cannot be used in evidence for any purpose other than contradiction. Here,
the matters sought to be elicited on cross-examination were collateral. The testimony would
have injected non-probative prejudicial evidence before the jury, distracted the jurors from the
issues, and misled the jurors. Nor was the evidence admissible as “prior bad acts.” “Evidence
that a defendant was negligent on a prior occasion simply has no relevance or bearing upon
whether the defendant was negligent on the occasion that is the subject of the litigation.”
3. Party Admissions
Gray v. Rhoads, 268 Va. 81, 597 S.E.2d 93 (2004)
Prior statements of a defendant that may not be used to impeach the witness under Code §
8.01-404 may nevertheless be admissible as a party admission in the plaintiff‟s case in chief.
Gray filed a wrongful death action against Rhoads and other members of the Albemarle
police department arising from the death of Gray‟s decedent during his arrest. The officers
involved gave statements about the incident to police detectives. The statements were later
transcribed. The plaintiff sought to use the statements as substantive evidence in his case in
chief. The defendants objected, arguing that, under Code § 8.01-404, extrajudicial statements of a
party are not admissible to contradict the witness in a wrongful death or personal injury action.
The trial court agreed with the defendants and ruled that the statements could not be used.
The Supreme Court reversed. The plain language of Code § 8.01-404 provides that, in a
wrongful death or personal injury action, “no ex parte affidavit or statement in writing other than
a deposition, after due notice, of a witness and no extrajudicial recording of the voice of such
witness, or reproduction or transcript thereof, as to the facts or circumstances attending the
wrongful act or neglect complained of, shall be used to contradict him as a witness in the case.”
The statutory prohibition is limited to contradicting a witness. In the context of this trial, the
statements were not to be used to contradict the officers, because the plaintiff wanted to
introduce the statements as substantive evidence in his case in chief. At that time the plaintiff
wanted to use the statements, the officers would not have testified. If the officers had testified,
the statements would have been properly refused, even if introduced as party admissions, because
their effect would be to contradict the officers.
Senior Justice Stephenson and Justice Koontz dissented. To them, it was “abundantly
clear that the plaintiff‟s sole purpose in introducing the statements was to contradict the officers
when they testified.”
4. Expert Witnesses; Medical Malpractice
Wright v. Kaye, 267 Va. 510, 593 S.E.2d 307 (2004)
In this medical malpractice case, the Supreme Court ruled on various evidentiary rulings
made by the trial judge.
Wright alleged that she suffered permanent bladder dysfunction as a result of Dr. Kaye‟s
negligence during a medical procedure to remove a cyst from Wright‟s urachus. Wright named
three expert witnesses. Although all three were, like Dr. Kaye, obstetricians/gynecologists, none
had performed the exact procedure at issue – the removal of a cyst from the urachus. The trial
court granted the defendant‟s motion to strike the experts. The court granted Wright leave to
identify a new expert. Meanwhile, Kaye designated as his expert a doctor from the same practice
group as Wright‟s current treating physician who himself was expected to testify at trial. The
court denied Wright‟s motion to exclude Kaye‟s expert on the basis that it was a conflict of
interest for Kaye‟s expert to testify at trial and that his testimony would violate the patient-
physician privilege. Wright moved in limine to exclude any testimony between Wright and Kaye
about the risks of surgery. Wright argued that, because she did not contend that Dr. Kaye failed
to obtain her informed consent, any evidence of the discussion of the risks of surgery would only
confuse the jury. The trial court denied that motion. Wright moved in limine to exclude
testimony of a consultation Dr. Kaye had with another doctor during Wright‟s surgery. The trial
court denied that motion. The trial court also denied Wright‟s motion in limine to exclude
evidence that Kaye had performed the same procedure in the past on another patient. On the day
of trial, the trial court found that Wright‟s new expert raised new issues prejudicial to Kaye. The
court prohibited the new expert from testifying, denied Wright‟s motion for a continuance and
granted Kaye summary judgment in that Wright had no standard of care expert.
The Supreme Court affirmed in part and reversed in part.
First, the trial court erred in striking Wright‟s first three standard of care experts because
they had not performed the exact procedure at issue. All three experts were entitled to the
presumption in Code § 8.01-581.20(A) that they knew the applicable standard of care. The issue
was whether the statutory presumption was rebutted if it was shown that the expert failed to meet
the “knowledge requirement” or the “active clinical practice requirement.” A witness “shall” be
qualified to testify as an expert if both the knowledge requirement and the active clinical practice
requirement are met. Dr. Kaye argued that Wright‟s experts failed to meet the active clinical
practice requirement because they had not performed the exact procedure involved in this case.
The trial court found that they failed to meet the knowledge requirement. This ruling was error.
Given that the alleged malpractice was injuring the bladder away from the surgical field, it was
sufficient that the experts had experience in laparoscopic surgery in the female pelvic region near
the bladder involving the use of a surgical stapler.
Second, the trial court correctly allowed Dr. Kaye‟s expert to testify even though he was
in the same practice group as Wright‟s current treating physician. The test for excluding
affiliated experts is similar to the test for “side-switching” experts in Turner v. Thiel, 262 Va.
597 (2001). The court must determine whether the moving party has produced evidence that any
substantive information about the case has been exchanged between the affiliated experts. The
exchange of confidential information will not be imputed. Wright offered no evidence that the
two doctors ever exchanged any information about her case, much less confidential information.
“Absent evidence of an actual exchange of confidential information, an affiliated expert should
not be excluded and no disqualifying conflict exists.”
Third, the trial court correctly ruled that Dr. Kaye would be permitted to testify about a
previous surgery he performed to remove an urachal cyst on an unrelated patient. Such evidence
is admissible to show Dr. Kaye‟s experience and training.
Fourth, the trial court erred in denying Wright‟s motion in limine to exclude her
discussions with Kaye about the risks of surgery. “Under the facts of this case, we hold the trial
court‟s ruling to be erroneous.” Because Wright did not contend that the surgery was performed
without her informed consent, information conveyed to her regarding the risks of surgery is
irrelevant and immaterial to the issue of the standard of care for performing the medical
procedure at issue. “Wright‟s awareness of the general risks of surgery is not a defense available
to Dr. Kaye against the claim of a deviation from the standard of care. While Wright or any other
patient may consent to risks, she does not consent to negligence.”
Fifth, the trial court erred in failing to exclude Dr. Kaye‟s testimony that he consulted
with another doctor during the surgery and the other doctor advised Dr. Kaye that he could safely
perform the procedure as he did. The conversation was “classic hearsay” to which no exception
applied, particularly in light of the fact that the consulting doctor had no memory of the
Christian v. Surgical Specialists of Richmond, 268 Va. 60, 596 S.E.2d 522 (2004)
The trial court erred in failing to qualify an expert witness in a medical malpractice case
who satisfied the requirements of Code § 8.01-581.20.
Christian claimed that Dr. Rowe negligently perforated her colon during a laparoscopic
gynecological procedure to remove a large pelvic cyst. She called Dr. Gonzalez, an ob/gyn
licensed in New York and California, as her only expert at trial. Dr. Gonzalez testified that he
was familiar with the Virginia standard of care, the he had discussed the standard of care with
Virginia physicians while attending seminars and meetings held in Virginia and that he was
familiar with the medical schools and facilities in Virginia. The trial court ruled that Dr.
Gonzalez was not sufficiently familiar with the Virginia standard of case. Christian conceded
that she had no case without Dr. Gonzalez‟s testimony. Accordingly, the trial court struck the
plaintiff‟s evidence and awarded summary judgment to the defendants.
The Supreme Court reversed. Because Christian did not attempt to show that Dr.
Gonzalez was presumptively qualified under § 8.01-581.20(A), the issue was whether he was
qualified under the alternative provision of that statute:
An expert witness who is familiar with the statewide standard of care shall not
have his testimony excluded on the ground that he does not practice in this
Commonwealth. A witness shall be qualified to testify as an expert on the
standard of care if he demonstrates expert knowledge of the standards of the
defendant's specialty and of what conduct conforms or fails to conform to those
standards and if he has had active clinical practice in either the defendant's
specialty or a related field of medicine within one year of the date of the alleged
act or omission forming the basis of the action.
Although Virginia adheres to a state-wide standard of care, “[n]o provision of law prohibits
Virginia physicians from practicing according to a national standard of case if one exists for a
particular specialty.” The “clear implication” of Dr. Gonzalez‟s testimony was that he was
“familiar with the Virginia standard of care applicable to the procedure performed by Dr. Rowe,
which coincidentally was the national standard of care.”
5. Expert Testimony; Quantum Meruit Claim
Virginia Financial Assoc. v. ITT Hartford Group, 266 Va. 177, 585 S.E.2d 789
There was a sufficient foundation for expert testimony admitted at trial in support of
plaintiff‟s quantum meruit claim.
Virginia Financial Associates (“VFA”) assisted Hartford in Hartford‟s joint venture with
MedPro that created and mass marketed an insurance product to dentists. Hartford refused to
compensate VFA and VFA brought a quantum meruit claim against Hartford. At trial, two
experts knowledgeable about the methods of compensation for commercial mass marketing
programs testified about the range of compensation typically paid to an insurance agent who
performed the services VFA provided to Hartford. A third expert testified as to the value of
future commissions to VFA. The circuit court ultimately granted partial summary judgment to
Hartford on the issue of future commissions, ruling that VFA would have to file subsequent
lawsuits to recover any future commissions. The jury returned a verdict in favor of VFA in the
amount of $1,230,000 and both sides appealed.
The Supreme Court affirmed. This issue in this quantum meruit case was the reasonable
value of the services VFA provided to Hartford. Both experts‟ testimony was based on adequate
foundation and was properly admitted. The third expert‟s testimony about future commissions
was speculative because it was based on the unknown variable of whether MedPro would enter
into another deal with a national insurer. The court properly instructed the jury to disregard the
projections of future commissions that VFA might receive. The jury is presumed to have
followed the court‟s instruction to disregard the testimony. Therefore, the trial court did not err
in denying Hartford‟s motion for a new trial and rejecting Hartford‟s argument that the jury was
irreparably prejudiced by the testimony.
6. Admissibility of Medical Bills Discharged in Bankruptcy
Barkley v. Wallace, 267 Va. 369, 593 S.E.2d 190 (2004)
In a personal injury action, evidence of plaintiff‟s medical bills and expenses that were
discharged in bankruptcy was admissible for the limited purpose of showing plaintiff‟s pain and
Barkley claimed to be injured in an automobile accident caused by Wallace. After filing
suit against Wallace, Barkley filed for bankruptcy and her obligation to pay her medical bills and
expenses of $11,365 was discharged in bankruptcy. The trial court granted Wallace‟s motion in
limine to exclude reference to the medical bills. Wallace admitted liability. The jury returned a
verdict in favor of Barkley for $10,000 and Barkley appealed.
The Supreme Court reversed. The medical bills were admissible for the limited purpose
of showing the extent of Barkley‟s medical treatment and pain and suffering. Generally, a
litigant may introduce all competent, material, and relevant evidence that tends to prove or
disprove any material issue in the case, unless the evidence violates a specific rule of
admissibility. “[T]he medical bills before us were relevant because they tended to establish the
probability of Barkley‟s claim that she experienced pain and suffering as a result of the accident.
Evidence of the medical bills also was relevant to establish the inconvenience that Barkley
experienced because of Wallace‟s negligence.” The Supreme Court did not decide whether
medical bills discharged in bankruptcy are “incurred” by the plaintiff or whether the plaintiff
could recover damages for the discharged expenses.
Justices Kinser, Lacy and Agee concurred in part and dissented in part. They would have
held that the exclusion of reference to the medical bills was harmless error.
7. Admissibility of Evidence of Lost Income; Collateral Source Rule
Bullard v. Alfonso, 267 Va. 743, 595 S.E.2d 284 (2004)
In this personal injury action, the trial court erred in excluding the plaintiff‟s evidence of
lost wages, when his employer continued to pay him during his period of recovery.
Bullard claimed that he was injured in an automobile accident caused by Alfonso.
Bullard‟s claimed damages included lost wages. The trial court excluded the evidence of lost
wages because Bullard‟s employer continued to pay his salary for the six months that he was
unable to work. The jury returned a verdict for $15,000 and plaintiff appealed.
The Supreme Court reversed. Under Code § 8.01-35 and the collateral source rule,
plaintiff was entitled to present evidence to the jury that he was unable to work for six months
and lost wages as a result, although his employer continued to pay him. The injured party should
be made whole by the tortfeasor, not by a combination of compensation from the tortfeasor and
collateral sources. “Collateral sources” means sources collateral to the defendant, not sources
collateral to the plaintiff. “[W]e now expressly hold that under the collateral source rule and
Code § 8.01-35, compensation paid by an employer to an employee during the period of the
employee‟s disability is not deductible from the quantum of damages that the tortfeasor owes.”
The plaintiff was granted a new trial limited to the issue of damages.
8. Balancing of Probative Value v. Prejudice
Dandridge v. Marshall, 267 Va. 591, 594 S.E.2d 578 (2004)
The plaintiff was entitled to a new trial limited to damages where the trial court erred in
excluding some of plaintiff‟s testimony and in allowing other prejudicial testimony of the
Dandridge was injured in an automobile accident caused by Marshall. Marshall admitted
liability. At trial, Dandridge was prohibited from testifying that he sought pain management
treatment from Dr. Stein following the recommendation of his treating physician. Dr. Stein did
not testify at trial. The trial court ruled that, under McMunn v. Tatum, 237 Va. 558 (1989), only
Dr. Stein could testify whether his treatment of Dandridge was reasonable and causally related to
the accident. The trial court permitted Dr. Silverman, the psychiatrist who performed an IME, to
testify that Dandridge told him that he hoped to be able to meet his financial obligations from the
recovery from the lawsuit. Dr. Silverman was also permitted to testify that Dandridge used his
money to purchase an assault weapon and ammunition rather than to seek medical treatment.
The jury returned a verdict for Dandridge for $15,000 and Dandridge appealed.
The Supreme Court affirmed in part and reversed in part. Dandridge should have been
permitted to testify that he treated with Dr. Stein for pain management. It was not offered to
show the medical necessity of the treatment, which is a medical opinion, but to show that
Dandridge followed his treating physician‟s instructions to seek pain management treatment and
that he continued to be injured after his treating physician could do no more for him.
Dandridge‟s statements about his hoped-for financial recovery from the lawsuit were properly
admitted. The statements cast light on Dandridge‟s credibility regarding the extent of his
injuries. Dr. Silverman should not have been permitted to testify about Dandridge‟s purchase of
an assault weapon. While Dr. Silverman testified that impulsive purchases are an indication of
Dandridge‟s mental condition, “the prejudicial effect of identifying an assault weapon as one of
Dandridge‟s impulse purchases substantially outweighs [its] probative value. Dandridge was
granted a new trial limited to the issue of damages.
9. Closing Statements; Improper Argument
Velocity Express Mid-Atlantic v. Hugen, 266 Va. 188, 585 S.E.2d 557 (2003)
A $60,000,000 plaintiff‟s verdict was reversed on appeal because of the improper
arguments of plaintiff‟s counsel in closing argument.
The Plaintiff suffered catastrophic injuries in an automobile accident caused by the
negligence of the defendant. During closing argument, plaintiff‟s counsel referred to the
plaintiff‟s inability to move by saying “If you sit there by yourself with your arms still seated in a
chair and you just don‟t move . . . .” The court sustained an objection that counsel was arguing
the “Golden Rule.” Counsel argued that if the plaintiff were Howard Hughes or Bill Gates, he
would have “an aide, a nurse, and whatever else it took to make [his] life as good as it possibly
could.” The court overruled the defendant‟s objection to that argument. Counsel later argued
“Suppose your husband were choking to death and he couldn‟t open his mouth? Do you want an
aide trying to get your husband‟s throat clear or would you like to have a nurse?” The Court
sustained the defendant‟s objection that counsel again was arguing the “Golden Rule.” After
these admonitions, counsel asked the jury “But if you were responsible for someone, who would
you want there?” and invited the jury to “suppose” that “you had to select an attendant.” The
trial court denied a motion for a mistrial based on cumulative improper and prejudicial arguments
to the jury.
The Supreme Court reversed. The references to Howard Hughes and Bill Gates were
improper because counsel asked the jury to award an amount sufficient for the plaintiff to afford
the same quality of care that the world‟s richest individuals might purchase for themselves, rather
than an amount that would fully and fairly compensate the plaintiff for his injuries. The
plaintiff‟s invocation of the “Golden Rule” also required reversal. Generally, a new trial is not
required when the court sustains an objection to an improper argument and instructs the jury to
disregard the argument. “However, if counsel persists in such argument after admonition of the
court, or if it appears that the [prejudicial] influence of the argument was probably not wholly
removed by the court‟s action, a new trial may be appropriate” (emphasis in original). Counsel‟s
“argument was highly prejudicial because plaintiff repeatedly asked the jury, despite the circuit
court‟s admonitions, to assess his damages in relation to how the jurors would want to be
compensated personally had they been injured and sustained the same injuries that plaintiff has
A. Proximate Cause
Atrium Unit Owners Ass‟n v. King, 266 Va. 288, 585 S.E.2d 545 (2003)
A plaintiff‟s verdict was reversed on appeal when there was insufficient evidence that the
burglary in the plaintiff‟s apartment was proximately caused by the negligence of the building
management in handling a spare key to the apartment. The jury verdict could have only been
“the product of mere conjecture, surmise or speculation.”
B. Jury Instructions
Russ v. Destival, 267 Va. 458, 593 S.E.2d 201 (2004)
A bicyclist riding across a roadway on a crosswalk has the same duties as a pedestrian. A
jury instruction that provided that the bicyclist has a duty to refrain from crossing an intersection
in disregard of “close or approaching” traffic misstated the plain language of Code § 46.2-
Russ was riding his bicycle on a bicycle path adjacent to a four-lane divided highway. As
he proceeded across a residential street that formed a T intersection with the highway, Russ was
struck by a car driven by Destival that was emerging from the residential street. At the trial of
Russ‟s personal injury suit, the jury was instructed the Russ had a duty to refrain from crossing
an intersection in disregard of traffic that is “close or approaching” in such a manner that a
reasonable person would not attempt to enter or cross. The jury returned a defense verdict and
The Supreme Court reversed. The jury instruction was a misstatement of Virginia law.
Under Code § 46.2-904, a bicyclist approaching an intersection on a shared use path has the
same rights as a pedestrian under the same circumstances. Code § 46.2-924(B) states that “[n]o
pedestrian shall enter or cross an intersection in disregard of approaching traffic.” The addition
of the word “close” in the jury instruction improperly altered the statutory duty of a bicyclist.
The Court interpreted “close” to mean “stopped.” “To state in a jury instruction that a bicyclist
must refrain from entering or crossing an intersection in disregard of traffic that is [stopped] runs
afoul of the plain language of Code § 46.2-904 and a pedestrian‟s right-of-way established in
subsection A of that statute.”
2. Willful and Wanton Conduct; Assault
Etherton v. Doe, 268 Va. 209, 597 S.E.2d 87 (2004)
In this John Doe “road rage” case, the trial court erred in striking the plaintiff‟s evidence
of willful and wanton conduct and assault.
Etherton claimed to be injured by a John Doe driver who veered aggressively into her
lane three times and suddenly applied his brakes, causing an accident. (John Doe‟s actions were
in apparent retaliation for other drivers‟ having honked their horns at him when he failed to
proceed through an intersection on a green light.) The trial court struck Etherton‟s claims for
willful and wanton conduct and assault. The case was submitted to the jury on the issue of
simple negligence and the jury found for the defendant.
The Supreme Court reversed. A motion to strike the plaintiff‟s evidence should be
granted only when it plainly appears that the court would be compelled to set aside any verdict
found in favor of the plaintiff as being without any evidence to support it. In this case, there was
sufficient evidence to submit the issue of assault to the jury. Assault does not require physical
contact. It is enough that the defendant intended to create in the plaintiff the apprehension of
imminent battery. There was sufficient evidence that John Doe intended to cause Etherton to
fear that she would be injured. Similarly, there was sufficient evidence that John Doe acted
willfully and wantonly to make it a jury issue. Although the jury found in favor of the defendant
on the issue of simple negligence, striking the evidence of willful and wanton conduct and
assault was not harmless error. The torts of negligence, assault and willful and wanton conduct
are conceptually distinct. Negligence is an inadvertent neglect of a duty, whereas the hallmark of
willful and wanton conduct is acting consciously in disregard of the rights of another.
3. Negligence Per Se
Schlimner v. Poverty Hunt Club, 268 Va. 74, 597 S.E.2d 43 (2004)
The plaintiff was entitled to have the jury instructed on the doctrine of negligence per se.
Schlimner, age 14, was accidentally shot by Cofield while on a deer hunting trip with his
father. Cofield pleaded guilty to reckless handling of a firearm under Code § 18.2-56.1. At trial,
the judge refused Schlimner‟s instructions on the issue of negligence per se. The judge opined
that the plaintiff would have to show common law negligence to recover. The jury found for the
The Supreme Court reversed. A litigant is entitled to jury instructions supporting his or
her theory of the case if sufficient evidence is introduced to support that theory and if the
instructions correctly state the law. The doctrine of negligence per se represents the adoption of
the “requirements of a legislative enactment as the standard of conduct of a reasonable person.”
A party relying on negligence per se does not need to establish common law negligence,
provided the proponent of the doctrine produces evidence supporting a determination that (1) the
opposing party violated a statute enacted for public safety, (2) the proponent belongs to the class
of persons for whose benefit the statute was enacted and that the harm suffered was of the type
against which the statute was designed to protect, and (3) the statutory violation was a proximate
cause of the injury. The first and second elements are issues of law to be decided by the judge.
The third element is generally and issue of fact to be determined by the trier of fact. In this case,
Schlimner established the first two elements of the doctrine and produced sufficient evidence in
support of the third element to make it a jury issue. Finally, the failure to instruct the jury on the
issue of negligence per se was not harmless error.
4. Legal Malpractice
Shipman v. Kruck, 267 Va. 495, 593 S.E.2d 319 (2004)
The statute of limitations for a legal malpractice action begins to run when the attorney‟s
representation ends, even though the clients did not discover their damages until later. The
“payment rule” expressed in Allied Productions v. Duesterdick, 217 Va. 763 (1977) is overruled.
In 1998, the Shipmans hired Attorney Kruck to defend them in an action brought by one
of their creditors. They told Kruck that their primary objective was to shield their residence from
the reach of their creditors. The Shipman residence was held in trust. Kruck erroneously advised
the Shipmans that the trust was irrevocable and that bankruptcy would protect their residence
from the creditors. Acting on that advice, the Shipmans filed for relief under Chapter 7 of the
Bankruptcy Code on March 9, 1998. On January 19, 1999, Kruck withdrew from his
representation when the Shipmans‟ trustee in bankruptcy and some creditors asserted that the
trust was revocable and that the trust‟s assets were reachable by the trustee for the benefit of
creditors. On March 8, 2000, the bankruptcy court authorized the trustee to sell the residence as
an asset of the bankruptcy estate. To save their house, the Shipmans purchased the house from
the trustee for $427,000 on June 29, 2001. The Shipmans filed a motion for judgment against
Kruck on September 11, 2002 alleging legal malpractice. The trial court found that the statute of
limitations was three years from when the Shipmans hired and paid new bankruptcy counsel and
that the action was time barred.
The Supreme Court affirmed. The trial court reached the right result for the wrong
reason. The parties agreed that the applicable statute of limitations was three years for a breach
of an oral contract and that the breach of duty occurred on March 9, 1998 when the bankruptcy
petition was filed. The “continuous representation” rule tolled the statue of limitations until
Kruck withdrew from his representation on January 19, 1999 (not from when the Shipmans
retained new bankruptcy counsel as the trial court held). The Supreme Court rejected the
Shipmans‟ argument that their cause of action did not accrue until they suffered damages on
March 8, 2000, when the bankruptcy court ruled that their house should be sold to satisfy their
debts or, alternatively, until June 29, 2001, when they purchased their house from the bankruptcy
trustee. The Shipmans suffered injury when their bankruptcy case was filed and they lost control
of their assets to the bankruptcy trustee. The rule enunciated in Allied Productions v.
Duesterdick, 217 Va. 763 (1977), that “until the client has made a payment on that debt he has
suffered no actual loss or damage” is an incorrect statement of law. The “payment rule” of
Duesterdick is overruled. First and foremost, adherence to a payment rule vests the aggrieved
client with the power to forestall the running of the statute of limitations by deferring payment.
Second, the payment rule does not protect a client who cannot afford to pay whatever damage he
has suffered. Finally, the payment rule works an injustice to attorneys who are forced to defend
actions brought years after the alleged breach. In that the Shipmans‟ suit was not filed until
September 11, 2002, more than three years from the date Kruck withdrew from representing the
Shipmans, the action was barred by the statute of limitations.
5. Malicious Prosecution
Commissary Concepts Mgmt. v. Mziguir, 267 Va. 586, 594 S.E.2d 915 (2004)
In this malicious prosecution case, the evidence was insufficient as a matter of law to
support the jury‟s finding that the criminal prosecution of the plaintiff was instituted without
Mziguir was employed as the general manager of Generous George‟s Positive Pizza.
Mziguir went to the bank to deposit the restaurant‟s daily cash receipts. The teller told him that
the deposit was for $297 more than the amount indicated on the deposit slip. Mziguir took the
excess cash back to the restaurant and put it in the safe. He did not mention what he had done
with the excess cash to anyone at the restaurant. The next day, which was Mziguir‟s day off, the
accounting staff noted the $297 discrepancy. The bank told the restaurant‟s CEO that it had
given the money to Mziguir. The police were called. The CEO told the police that Mziguir
“possibly embezzled” the money. The police officer obtained a warrant charging Mziguir with
embezzlement. After his arrest, Mziguir told the police where he put the money. The charges
were dropped. The jury awarded Mziguir $25,175 in compensatory damages and $25,000 in
punitive damages on his claim of malicious prosecution.
The Supreme Court reversed. As a matter of law, the evidence was insufficient to show
that the criminal prosecution of Mziguir was instituted without probable cause. In the context of
malicious prosecution, “probable cause” is defined as “knowledge of such a state of facts and
circumstances as excite the belief in a reasonable mind, acting on such facts and circumstances,
that the plaintiff is guilty of the crime of which he is suspected.” The circumstances surrounding
the bank deposit were such to “excite the belief in a reasonable mind” the Mziguir had
embezzled the missing funds.
6. Constructive Fraud; “Economic Loss Rule”
Filak v. George, 267 Va. 612, 594 S.E.2d 610 (2004)
The “economic loss rule” barred the plaintiffs‟ recovery under a claim of constructive
fraud when their allegations were that their insurance agent failed to obtain a policy that would
provide them full replacement costs within days if their house were destroyed by fire. On their
breach of contract claim, the plaintiffs‟ evidence failed, as a matter of law, to establish their
damages measured by the difference between the insurance policy bargained for and the
insurance policy actually received.
Massey and Filak, husband and wife, were building their “dream home” on a 36-acre
horse farm they owned. They contacted their insurance agent, George, to upgrade their insurance
from a “rural fire” policy to an “elite” policy that would provide at least $481,000 in total
replacement costs for their new house if it were destroyed by fire. The plaintiffs agreed to
purchase the elite policy and paid a premium to secure the policy. Plaintiffs alleged that George
assured them that they would receive total replacement costs within days of a total loss. In fact,
policy they received provided that they would receive total replacement costs only if they
repaired and replaced the house within six months of receiving payment for the actual cash value
of the damage. The house was completely destroyed by fire caused by a lightning strike. The
insurance company paid the plaintiffs $190,000 for the actual cash value of the loss and told
them that they had 180 days to rebuild. They did not rebuild. The plaintiffs settled with the
insurance company. They then sued George, alleging constructive fraud and breach of contract.
The trial court sustained George‟s demurrer to the constructive fraud count. Citing the
“economic loss rule,” the trial court ruled that constructive fraud is not actionable when such a
claim essentially alleges negligent performance of a contractual duty. At trial, the court struck
the plaintiffs‟ evidence on the breach of contract claim.
The Supreme Court affirmed. The trial court properly sustained George‟s demurrer under
the “economic loss rule.” Under Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236
Va. 419 (1988), losses suffered as a result of the breach of duty assumed only by agreement,
rather than a duty imposed by law, remain the sole province of the law of contracts. The law of
torts is concerned with protecting persons and property from injury. The law of contracts is
concerned with protecting bargained-for expectations. When a plaintiff alleges nothing more
than disappointed economic expectations, the law of contracts and not the law of torts, provides
the remedy for such economic loss. George‟s duties to the plaintiffs, if any, arose only out of her
oral agreement to procure the requested insurance contract. George had no common law duties
to the plaintiffs arising out of the parties‟ dealings. The trial court correctly granted George‟s
motion to strike the claim of breach of contract. As a matter of law, the plaintiffs failed to
establish any damages resulting from George‟s alleged breach of contract. George did deliver a
policy that provided for full replacement costs, just not one that provided for payment within
days of the loss. The measure of damages was the difference between the policy that the
plaintiff‟s bargained for and the one that they actually received. The plaintiffs failed to establish
any damages resulting from their inability to obtain full replacement costs with a few days of the
7. Fraudulent Conveyance
Buchanan v. Buchanan, 266 Va. 207, 585 S.E.2d 533 (2003)
A spouse may maintain a fraudulent conveyance action against the other spouse under
Code § 55-80 where the defendant spouse makes conveyances with the intent to deplete the
marital estate available for equitable distribution.
The Buchanans, husband and wife, separated in 2000. In 2001, the husband sold
construction equipment to his father for $30,500. The father paid the husband with $8,000 cash
and gave him a promissory note for $22,500. One month later, the husband took out loans
secured by liens on the marital home and with the proceeds gave his father $5,750 and his mother
$12,250. The wife brought a fraudulent conveyance action against husband and his parents. The
husband moved for summary judgment, arguing that the wife was not entitled to bring a
fraudulent conveyance action under Code § 55-80. The trial court denied the motion. The court
found that the husband‟s transfer of $5,730 to his father and $12,250 to his mother were
fraudulent. The husband appealed.
The Supreme Court affirmed. The wife was an “other person” who “may be” entitled to
payment from the husband and, as such, she was entitled to bring a fraudulent conveyance action
under Code § 55-80. It was not fatal to the wife‟s claim that the divorce case had not been filed
at the time of the conveyance. “To maintain an action under this statute, the entitlement of one
alleging a fraudulent conveyance need not be judicially established or reduced to judgment at the
time of the challenged conveyance.”
8. Premises Liability
Southern Floors and Acoustics, Inc. v. Max-Yeboah, 267 Va. 682, 594 S.E.2d 908
In general, an owner of premises who employs an independent contractor is not liable for
injuries to third parties caused by the negligent acts of the independent contractor. There is no
duty of the owner to supervise the independent contractor. The owner is not itself negligent
where it has no notice of the condition that caused the plaintiff‟s injury.
Max-Yeboah was injured when he tripped over a stack of floor tiles at Food Lion grocery
store undergoing renovations. He brought suit against both Food Lion and Southern Floors, the
contractor performing the retiling. The trial court refused to hold that Max-Yeboah was
contributorily negligent as a matter of law. The jury received conflicting instructions. They were
instructed both that “[a] person who hires an independent contractor in not liable for his actions”
and that “where the owner of the premises had control and oversight at the site where work was
being done by the contractor, he is responsible for the negligent actions of an independent
contractor.” The jury found both defendants jointly and severally liable.
The Supreme Court affirmed in part and reversed in part. The issue of the plaintiff‟s
contributory negligence was properly submitted to the jury. However, it was error to instruct the
jury that Food Lion could be held liable for the negligence of Southern Floors. The court had
ruled pre-trial that Food Lion could not be held vicariously liable for the actions of Southern
Floors. It was error to instruct the jury on a claim that had been removed from the case. With
regard to the claims of Food Lion‟s own negligence, there was no evidence that Food Lion had
any notice of the stack of tiles on which Max-Yeboah tripped. Food Lion could not be held
liable for negligent supervision of Southern Floors; by definition there is no duty to supervise an
independent contractor. The judgment against Food Lion was reversed and the judgment against
Southern Floors was affirmed.
9. Tort Defenses
A. Contributory Negligence; Bar to Negligence Per Se
O‟Neill v. Windshire-Copeland Assoc., 267 Va. 605, 595 S.E.2d 281
Answering a certified question from the Fourth Circuit, the Supreme Court held that
contributory negligence is a complete defense to a plaintiff‟s claim that she was injured as the
result of the defendant‟s per se negligence in violating a municipal code.
O‟Neill became a quadriplegic when she fell backwards off of an apartment building
balcony. The railings on the balcony were 16 inches shorter than required by the city‟s building
code when the building was constructed. O‟Neill admitted that, prior to the fall, she was
drinking alcohol and was familiar with the balcony. O‟Neill sued the apartment building owner
and manager. The trial court found that the defendants were negligent per se. The jury found
that O‟Neill was contributorily negligent.
At issue was whether Virginia would follow § 483 of the Restatement (Second) of Torts.
Under that section, when a defendant‟s negligence consists of a violation of a statute, the
plaintiff‟s contributory negligence bars recovery “unless the effect of the statute is to place the
entire responsibility for such harm as has occurred upon the defendant.” In this case, nothing in
the city code indicates a legislative intent to place the entire responsibility for injuries stemming
from a code violation in the defendant building owner. “[W]e conclude that § 483 of the
Restatement (Second) has not been adopted in this state and hold that the defense of contributory
negligence is available when the defendant‟s violation of a municipal building code is negligence
per se and a proximate cause of the plaintiff‟s injuries.”
B. Prosecutorial Immunity
Andrews v. Ring, 266 Va. 311, 585 S.E.2d 780 (2003)
In a case discussed in greater detail, below at page 30, the Virginia Supreme Court ruled
that, under Virginia common law, the Commonwealth‟s Attorney is entitled to absolute
immunity from liability for malicious prosecution when he advises a law enforcement officer to
obtain a warrant. “In each case where a prosecutor is involved in the charging process, under
Virginia law, that action is intimately connected with the prosecutor‟s role in the judicial
proceedings and the prosecutor is entitled to absolute immunity from suit for such actions.” The
Court was not bound by a contrary United States Supreme Court holding in Burns v. Reed, 500
U.S. 478 (1991).
C. Limited Liability of School Board; Self Insurance
Frederick County School Bd. v. Hannah, 267 Va. 231, 590 S.E.2d 567
A school board is not entitled to the $50,000 limit of liability under Code § 22.1-194
when it has never obtained a certificate of self-insurance as required by Code § 22.1-190(D).
Hannah was injured in a school bus accident. The school board is a member of a self-
insurance pool operated by the Virginia School Board Association. The school board admitted
liability, but said its liability was limited to $50,000 under Code § 22.1-194. The trial court
denied the school board‟s motion to reduce the plaintiff‟s ad damnum to $50,000. The trial
court ruled that the school board‟s liability was not limited to $50,000, in that the school board
never obtained the certificate of self-insurance required by Code § 22.1-190(D). Hannah was
awarded damages of $74,500 and his mother was awarded damages of $4,510.
The Supreme Court affirmed. Code § 22.1-190, the specific statute requiring school
boards to obtain certificates of self-insurance governs over Code § 15.2-2704, the more general
statute exempting political subdivisions that participate in self-insurance pools from obtaining a
certificate of self-insurance.
Senior Justice Stephenson, along with Justices Lacy and Keenan dissented. They would
have harmonized the statutes by holding that only a school board that is individually self-insured
and that does not participate in a self-insurance pool must obtain certificate of self-insurance.
D. Sovereign Immunity
(i) Liability of Agencies of the Commonwealth
The Rector and Visitors of the University of Virginia v. Carter, 267
Va. 242, 591 S.E.2d 76 (2004)
The Virginia Tort Claims Act provides only a limited waiver of liability to the
Commonwealth and does not waive the sovereign immunity of the Commonwealth‟s agencies.
Carter filed a medical malpractice suit against the University of Virginia. The
Commonwealth of Virginia was not named as a defendant. UVa filed a plea of sovereign
immunity, which the trial court denied. An interlocutory appeal of that ruling was granted by the
The Supreme Court reversed. The Virginia Tort Claims Act provides for a limited waiver
of liability for the Commonwealth. Because the statute is in derogation of the common law, it
will be strictly construed. The Act contains no express provision waiving sovereign immunity
for agencies of the Commonwealth. “As an agency of the Commonwealth, UVA is entitled to
sovereign immunity under the common law absent an express constitutional or statutory
provision to the contrary. There is no such waiver in the Act or elsewhere.” The Commonwealth
of Virginia is a necessary party to Carter‟s suit. The VCTA waives the sovereign immunity of
the Commonwealth only. The trial court should have granted UVa‟s claim of sovereign
(ii) Notice of Claim; Identification of “Place of Injury”
Bates v. Commonwealth of Virginia, 267 Va. 387, 593 S.E.2d 250
A notice of claim to the Commonwealth adequately identifies the “place” at which the
alleged injury occurred when it names the hospital at which the decedent was a patient when she
died as a result of medical malpractice.
Plaintiff‟s decedent died while a patient at the University of Virginia Medical Center.
Plaintiff mailed a notice of claim to the Attorney General that identified the “PLACE OF
INJURY” as the “University of Virginia Health Sciences Center, Charlottesville, Virginia.” The
Commonwealth filed a plea of sovereign immunity and a motion to dismiss, alleging that the
plaintiff had not adequately identified the place of the injury under the Virginia Tort Claims Act,
in that the hospital is spread over many buildings, floors and rooms. Relying on Halberstam v.
Commonwealth, 251 Va. 248 (1996), the trial court agreed with the Commonwealth and
sustained the plea of sovereign immunity.
The Supreme Court reversed. The Court distinguished Halberstam. In that case, a notice
of claim that said the claimant was injured in a George Mason University parking lot was
deficient because GMU had many parking lots and more than one campus. The purpose of
notifying the Commonwealth of the place of the injury is to enable the Commonwealth to
investigate and evaluate the claim. In this case, there is only one University of Virginia Medical
Center in Charlottesville. The notice of claim said that the decedent was admitted to the hospital
and died while a patient there as a result of medical malpractice. “In combination, these
assertions reasonably identified the place at which Bates alleged [her decedent] was injured so
that the Commonwealth could investigate and evaluate the claim.”
(iii) Nuisance Action
Maddox v. Commonwealth, 267 Va. 657, 594 S.E.2d 567 (2004)
A nuisance claim against the Commonwealth was barred by the doctrine of sovereign
Maddox was injured while riding his bicycle along a state-owned and maintained
sidewalk. Among his claims against the Commonwealth was a claim that the Commonwealth
created and maintained a nuisance because of the dangerous condition posed by the design of the
sidewalk. The trial court sustained the defendant‟s plea of sovereign immunity.
The Supreme Court affirmed. The Virginia Tort Claims Act contains a limited waiver of
immunity. Code § 8.01-195.3(2) excepts from the waiver of immunity liability in tort for any act
or omission in the exercise of the legislative function of an agency of the Commonwealth. The
design of a sidewalk by an agency of the Commonwealth is a legislative function. The decision-
making process in the design of a sidewalk entails the exercise of discretion. The result is not
changed because Maddox styled his action as a nuisance claim. Because the nuisance claims in
this case are predicated on the acts or omissions of a state agency in the design of the sidewalk,
the claims are barred by the “legislative function” exception to the Commonwealth‟s waiver of
(iv) Governmental v. Proprietary Functions
Gambell v. City of Norfolk, 267 Va. 353, 593 S.E.2d 246 (2004)
A city engaged in snow removal is engaged in a governmental function. Therefore, the
city is immune from liability for injuries resulting from plaintiff‟s “slip and fall” in a city-owned
parking lot after a snowstorm.
Gambrell was an employee of Bank of America. The Bank leased parking spots for its
employees in a city-owned parking lot. Gambrell was injured when she slipped and fell in the
parking lot after a large snowstorm. She alleged that the injury was caused by the City‟s
negligent failure to remove snow and ice from the lot. The City filed a plea of governmental
immunity. After an evidentiary hearing, the trial court sustained the plea, ruling that the City‟s
continued effort to dig out from the storm was a governmental function entitled to governmental
The Supreme Court affirmed. A function is governmental in nature if it is directly related
to the general health, safety, and welfare of the citizens. A function is proprietary in nature if in
involves a privilege and power performed primarily for the benefit of the municipality. A
municipality is immune from liability for negligence in the exercise of a governmental function,
as well as the failure to exercise a governmental function. Here, the “City‟s decision to restrict
its snow removal operations to its public streets, and its failure to place emergency warning signs
in the parking lot, involved the City‟s exercise of a governmental, rather than a proprietary,
function.” The City‟s actions and omissions were made “in the context of an extended snow
emergency and dealt with the determination of priorities directly related to the general health,
safety and welfare of the citizens.” The governmental nature of the function did not change
because the City leased the parking lot to a private entity.
10. Personal Injury; Burden of Proof
Honsinger v. Egan, 266 Va. 269, 585 S.E.2d 597 (2003)
The trial court properly refused jury instructions proffered by the defendant that misstated
the plaintiff‟s burden of proof in this personal injury action.
Egan was injured in an automobile accident caused by Honsinger. Plaintiff‟s experts
opined that she suffered from a mild traumatic brain injury caused by the accident. The
defendant attempted to show that Egan‟s “constellation” of symptoms arose from other traumatic
events in her life, including a sexual assault, diabetes, her divorce, and her parents‟ divorce. A
defense expert testified that Egan could be exaggerating her symptoms as a form of “secondary
gain.” The trial court denied two jury instructions offered by the defendant. One stated that the
plaintiff has to prove each item of damage she claimed “by a preponderance of the evidence and
with reasonable certainty.” The second stated that the plaintiff could not recover if the jury were
“uncertain” if an item of damage was caused by the accident or some other cause. The jury
returned a plaintiff‟s verdict for $500,000 and the defendant appealed.
The Supreme Court affirmed. Neither of the two instructions the defendant offered was a
correct statement of Virginia law. “[W]hen a proffered instruction is not a correct statement of
the law or is not supported by the evidence in the case, the trial court is not required to correct or
amend the instruction rather than refusing to grant it.” Both instructions suggested to the jury
that they plaintiff had to prove her damages with “certainty” rather than by a preponderance of
11. Conspiracy to Injure Another in Business or Trade; Malicious Prosecution
Andrews v. Ring, 266 Va. 311, 585 S.E.2d 780 (2003)
There can be no recovery under the civil conspiracy statutes, Code §§ 18.2-499 and -500,
for damages to personal reputations and employment interests. Under Virginia common law, the
Commonwealth‟s Attorney is entitled to absolute immunity from liability for malicious
prosecution when he advises a law enforcement officer to obtain a warrant. Summary judgment
in favor of the defendant on a malicious prosecution claim is not proper when the record does not
support a finding that there was probable cause to institute the criminal proceeding.
On the advice of the Commonwealth‟s Attorney, a county building inspector swore out
warrants against Andrews, the chair of the county school board, and against Cox, the director of
school maintenance. Andrews and Cox were charged with starting a construction project at the
county high school without a building permit. The cases were nolled prossed. Andrews and Cox
then sued the Commonwealth‟s Attorney and the building inspector for violations of Code §§
18.2-499 and -500 and for malicious prosecution. The trial court awarded summary judgment to
The Supreme Court affirmed in part and reversed in part. Summary judgment was
properly awarded to the defendants on the statutory conspiracy counts. Code §§ 18.2-499 and -
500 are limited to injury to one in one‟s business or trade, not damages to one‟s personal
reputation or employment interests. Summary judgment was properly awarded to the
Commonwealth‟s Attorney, who is absolutely immune for his advice to the building inspector to
seek the warrants. “In each case where a prosecutor is involved in the charging process, under
Virginia law, that action is intimately connected with the prosecutor‟s role in the judicial
proceedings and the prosecutor is entitled to absolute immunity from suit for such actions.”
Summary judgment was properly granted in favor of the defendants on the malicious prosecution
claim of Cox (the director of school maintenance), as the record showed that the warrant was
supported by probable cause. It was error, however, to grant summary judgment in favor of the
defendant building inspector on Andrew‟s claim of malicious prosecution. The record did not
support a finding that the warrant against Andrews (the chair of the school board) was supported
by probable cause.
12. Fraud & Constructive Fraud
Cohn v. Knowledge Connections, Inc., 266 Va. 362, 585 S.E.2d 578 (2003)
The trial court properly set aside a jury verdict in favor on the plaintiff on her claims of
fraud and constructive fraud.
Laura Cohn was offered a position as a manager with defendant Knowledge Connections,
Inc. (KCI). Cohn expected to be assigned to KCI‟s Pentagon office, but she knew she could be
assigned anywhere. She was concerned about being hired over in-house candidates and was told
that no one at KCI had the experience to manage the Pentagon office. She was concerned that an
existing KCI employee, Temple, had more experience that she did. She was assured that Temple
was not qualified to run the Pentagon office. After she accepted the offer, Cohn was notified
that the person at the Pentagon who worked with KCI preferred working with men. Temple was
given the Pentagon position. She was reassigned to another office. Two days later, her
employment offer was withdrawn when she did not report for work as scheduled. Cohn brought
suit against KCI alleging fraud and constructive fraud. The alleged actual fraud was failing to
tell her that KCI‟s contact at the Pentagon was biased against women before KCI offered her the
job. The alleged constructive fraud was misrepresenting Temple‟s ability to manage the
Pentagon office. The trial court took a motion to strike the evidence under advisement. The jury
returned a verdict in favor of Cohn in the amount of $125,000. The trial court granted KCI‟s
motion to set aside the verdict.
The Supreme Court affirmed. Cohn‟s claim of actual fraud failed because there was no
evidence of any intent by KCI to conceal what it knew about the alleged gender bias of KCI‟s
Pentagon contact. There was no evidence that KCI knew of the bias, much less concealed it,
before it extended a job offer to Cohn. Further, KCI‟s statements that the contact preferred to
work with men were statements of opinion, not material fact. The constructive fraud claim failed
because there was no evidence of a causal connection between the alleged misrepresentation and
any damages Cohn suffered. There was no evidence that the misrepresentation of Temple‟s
qualifications caused her not to become the manager of the Pentagon office of KCI.
13. Tort Damages
A. Detention of Personal Property
MCI WorldCom Network v. OSP Consultants, 266 Va. 389, 585 S.E.2d
In a certified question from the Fourth Circuit, the Virginia Supreme Court decided that
MCI WorldCom was not entitled to “loss of use” damages when the defendant negligently
severed one of MCI‟s fiber optic cables but there was no evidence that MCI suffered any loss of
revenue or other damages when the cable was unavailable.
B. Fraud & Constructive Fraud
Klaiber v. Freemason Associates, 266 Va. 478, 587 S.E.2d 555 (2003)
The circuit court entered summary judgment in favor of a condominium developer on the
various claims of two condominium owners who sold their condos at a profit. The trial court
ruled that damages could not be proven as a matter of law.
The Supreme Court affirmed in part and reversed in part. The measure of damages for
the plaintiff‟s fraud claims was “the difference between the actual value of the property at the
time the contract was made and the value that the property would have possessed had the
[fraudulent] representation been true.” Here, the owners did not allege facts to support a
conclusion that the actual value of the condo units at the time of purchase was less than the value
that the units would have had absent the fraudulent acts of the developers. Repair and
replacement costs, which were alleged, are not the proper measure of damages for fraud.
Therefore, the trial court correctly granted summary judgment on the fraud claims. Summary
judgment was also properly granted in favor of the developers on the plaintiffs‟ claims of false
advertising. In that the property was later sold at a profit, “there is simply no basis upon which a
finder of fact could conclude that they had suffered any loss or damage.” Summary judgment
should not have been granted, however, on the claims of breach of contract and breach of
warranty. “Under certain circumstances, a party seeking to restore the benefit of a bargain or to
enforce a warranty is permitted to show that the cost of remedying the breach is the appropriate
measure of damages.” Because the costs of repair had been alleged as damages, whether or not
those damages had been suffered was a disputed fact for trial.
C. Excessive Damages
Rose v. Jaques, 268 Va. 137, 597 S.E.2d 64 (2004)
The Supreme Court affirmed a jury verdict in the amount of $7,500,000 in favor of the
plaintiff in this personal injury action.
Jacques was injured when a tractor-trailer made an improper lane change on Interstate 64.
The appeal presented several evidentiary issues. First, the trial court refused to strike Jacques‟s
evidence on the basis that she was contributorily negligent as a matter of law for failing to keep a
proper lookout and brake when the tractor-trailer cut into her lane. Similarly, the trial court
refused to instruct the jury on the issue of Jacques‟s contributory negligence, ruling instead that,
as a matter of law, she was not contributorily negligent. The trial court refused to allow a
defense neuropsychologist to testify about a psychological test he administered to the plaintiff to
test for malingering. The jury returned a verdict for the plaintiff in the amount of $7,500,000.
The Supreme Court affirmed. The evidence of contributory evidence was not sufficient
to create a jury issue. There is nothing in the record to indicate that Jacques failed to act as a
reasonable person would have acted under the circumstances to avoid the collision. It was not
error to exclude the evidence of malingering when the neuropsychologist was not able to make a
firm diagnosis of malingering. Finally, the verdict was not excessive.
When a verdict is challenged on the basis of alleged excessiveness, a trial court is
compelled to set it aside “if the amount awarded is so great as to shock the
conscience of the court and to create the impression that the jury has been
motivated by passion, corruption or prejudice, or has misconceived or
misconstrued the facts or the law, or if the award is so out of proportion to the
injuries suffered as to suggest that it is not the product of a fair and impartial
Shepard v. Capitol Foundry, 262 Va. 715, 720-721 (2001). In this case, there is nothing in the
record to suggest that the verdict was the product of “passion, corruption or prejudice” or that the
jury “misconceived or misconstrued the facts or the law.”
1. Contract Defenses; Undue Influence; Grossly Inadequate Consideration
Friendly Ice Cream Corp. v. Beckner, 268 Va. 23, 597 S.E.2d 34 (2004)
The trial court erred in finding that an amendment to a lease was the result of undue
influence and that the consideration was grossly inadequate.
Mrs. Beckner entered into a ground lease with Friendly Ice Cream in 1976. If all the
options to renew were exercised, the lease would run until 2016. By 2001, the lease generated
rents to Mrs. Beckner of $1,050 a month in base rent and an annual payment of $7,984.68 in
percentage rent. In 2001, Friendly decided to close its retail store on the premises. Riggs Bank
was interested in the site. Riggs offered to pay Friendly $800,000 if Riggs could obtain an
assignment of the tenant‟s interest in the lease without the provision for percentage rent. Hughes,
an attorney and an officer of Friendly, on several occasions met with Mrs. Beckner, an 80 year
old widow, to discuss an amendment to the lease to eliminate the percentage rent and to allow an
assignment to Riggs. Mrs. Beckner‟s attorney had instructed Friendly not to deal directly with
Mrs. Beckner, but Mrs. Beckner told Hughes that she had fired her attorney and wanted to deal
directly with Hughes. Eventually, Hughes went with Mrs. Beckner to a bank, where she signed a
lease amendment that raised the base rent to $1,850 a month and eliminated percentage rent.
Later, Mrs. Beckner filed a bill of complaint seeking rescission of the contract based undue
influence and gross inadequacy of consideration. The trial court found in favor of Mrs. Beckner.
The Supreme Court reversed. A court of equity will not set aside a contract because it is
rash, improvident or a hard bargain. But equity will act if the circumstances raise the inference
that the contract was the result of imposition, deception, or undue influence. To set aside a deed
or contract on the basis of undue influence requires a showing that the free agency of the
contracting party has been destroyed. Undue influence must be proved by clear and convincing
evidence. If the party seeking rescission produces clear and convincing evidence of great
weakness of mind and either (1) grossly inadequate consideration or (2) suspicious
circumstances, he has established a prima facie case of undue influence and, absent sufficient
rebuttal evidence, is entitled to rescission of the document. A prima facie showing of undue
influence may also be made where there is a confidential relationship between the grantor and the
proponent of the instrument.
Applying those principles to the facts of the case, the trial court erroneously found that a
confidential relationship existed between Mrs. Beckner and Hughes. Although Mrs. Beckner
may have liked and trusted Hughes, such trust alone is insufficient to establish a confidential
relationship. The record at most reflects a commercial relationship in which the parties trusted
each other. The trial court erred in finding the consideration to be grossly inadequate. The test
for grossly inadequate consideration is that the “inequality [is] so strong, gross and manifest that
it must be impossible to state it to a [person] of common sense without producing an exclamation
at the inequality of it.” Here, the evidence was that Friendly had decided to close the store and
the percentage rent would therefore cease. The increase in the base rent was the amount
requested by Mrs. Beckner and would provide her with $125,000 more over the life of the lease.
In addition, included in consideration is the possibility that Mrs. Beckner might own the bank
building at the end of the lease term. The $800,000 that Riggs was planning to pay for the lease
assignment is irrelevant to the adequacy of the consideration Mrs. Beckner received in that she
did not have the ability to assign the lease to Riggs. The trial court erred in finding “suspicious
circumstances.” Mrs. Beckner initiated most of her contacts with Hughes and actively
participated in the lease negotiations. Weakness of mind alone does not entitle Mrs. Beckner to
rescission. Therefore, the trial court erred in rescinding the contract based on undue influence
and grossly inadequate consideration.
2. Interpretation; Ambiguity; Parol Evidence; Commercial Lease
Video Zone, Inc. v. KF&F Properties, 267 Va. 621, 594 S.E.2d 921 (2004)
The terms of a commercial lease were ambiguous as to whether the landlord or the tenant
was responsible for replacing HVAC equipment located on the roof of the leased premises. The
trial court‟s factual finding that the parties intended that the tenant be responsible for the
replacement of the HVAC equipment was not clearly erroneous.
Video Zone leased premises in a shopping center from KF&F. Some of the HVAC
system was located in the leased premises, but the major component was located on the roof.
The lease provision as to maintenance provided that the lessor would maintain the exterior of the
building, and that the lessee would “keep and maintain in good order” the interior of the building,
including “all plumbing, heating, cooling . . . and electrical equipment.” The lessee paid for all
repairs and maintenance of the HVAC system throughout the lease term until the system totally
malfunctioned. The HVAC system cost over $8,000 to replace and the landlord and tenant
disagreed about who was responsible for the expense. The trial court ruled in favor of the
landlord, holding that the lease term was ambiguous and that parol evidence established that the
parties intended that the tenant was responsible for HVAC repairs.
The Supreme Court affirmed. The trial court‟s finding of ambiguity is a question of law,
which the Supreme Court reviewed de novo. The contract provision was ambiguous because it
could be understood in more than one way. Once the contract is determined to be ambiguous,
parol evidence is admissible, not to contradict the contract terms, but to establish the real contract
between the parties. Because there was evidence to support the circuit court‟s factual findings,
the Supreme Court was required to affirm the trial court.
3. Contract Damages; Consequential Damages
Virginia Polytechnic Institute and State University v. Interactive Return Service,
Inc., 267 Va. 642, 595 S.E.2d 1 (2004)
Evidence of consequential damages is admissible where a reasonably prudent person in
the position of the contracting parties would have considered the type of damages to be the
natural consequence of a breach of the agreement.
Interactive Services (IRS) sued Virginia Tech and others for breach of agreements to
develop interactive data services and to license the intellectual property created by the project.
IRS fell behind to Virginia Tech on payments due under the contract. At the time of trial, IRS
owed Virginia Tech approximately $750,000 under one of the agreements. Although it was
disputed, there was evidence that the parties agreed that IRS would not have to pay Virginia Tech
until after the delivery of a working prototype and that Virginia Tech would continue working on
the project and invoicing IRS for the amounts due under the contract. In 1997, Virginia Tech
stopped working on the project. Virginia Tech advised IRS that it would assign the intellectual
property derived from the project to an affiliate unless IRS paid within 45 days. When IRS did
not pay, Virginia Tech assigned the intellectual property to an affiliate. IRS then sold its rights in
the intellectual property from the project to the HAGO Company and sent a copy of its contract
with HAGO to Virginia Tech. The jury found in favor of IRS and awarded damages of
The Supreme Court affirmed. The trial court correctly rejected the defendants‟ argument
that IRS could not recover because IRS was the first to commit a material breach of the contract
by not paying Virginia Tech. The trial court properly instructed the jury on the issue of whether
Virginia Tech waived the right to prompt payment under the contract. There was sufficient
evidence of waiver to make the question a jury issue. Therefore, whether IRS was first to breach
the contract was immaterial. The trial court properly instructed the jury on the issue of
consequential damages. Consequential damages are those that arise from the intervention of
“special circumstances” not ordinarily predictable. Consequential damages are compensable
only if it is determined that the special circumstances are within the contemplation of both
contracting parties. “Contemplation” means what was actually foreseen and what was reasonably
foreseeable. The terms of the two contracts in issue demonstrated that the type of damages
claimed by IRS was within the contemplation of the parties at the time of contracting. Under the
contracts, it was contemplated that IRS was interested in the commercial uses for the intellectual
property developed by the project. IRS‟s agreement to sell intellectual property to HAGO was
such a contract. Thus, IRS‟s evidence of consequential damages (i.e., its contract with HAGO)
was properly submitted to the jury.
4. Public Construction Contracts
Blake Constr. v. Upper Occoquan Sewage Auth., 266 Va. 564, 587 S.E.2d 711
The provisions of a public construction contract that severely restricted monetary
damages to the builder for owner-caused delays were void as against Code § 2.2-4335(A) and
Virginia‟s public policy.
Blake Construction and Poole & Kent Corporation (the “Joint Venture”) contracted to
construct a waste water treatment facility for the Upper Occoquan Sewage Authority (“UOSA”).
As a public authority, UOSA is subject to the Virginia Public Procurement Act (“VPPA”).
During the course of construction, the Joint Venture made many claims for additional
compensation, some of which UOSA denied. The Joint Venture sought, among other things, a
declaratory judgment that some of the contract provisions restricting its right to seek monetary
damages for owner-caused delays were prohibited by Code § 2.2-4335(A) and were therefore
void as against public policy. UOSA demurred to the request for a declaratory judgment and the
learned trial court ultimately sustained the demurrer without leave to amend.
The Supreme Court reversed, agreeing with the Joint Venture that the disputed contract
provisions were void as against Virginia‟s public policy. Code § 2.2-4335(A) provides that:
Any provision contained in any public construction contract that purports to
waive, release, or extinguish the rights of a contractor to recover costs or damages
for unreasonable delay in performing such contract, either on his behalf or on
behalf of his subcontractor if and to the extent the delay is caused by acts or
omissions of the public body, its agents or employees and due to causes within
their control shall be void and unenforceable as against public policy.
The Court noted that the case was one of first impression. The disputed contract provisions were
General Condition 91.K, which contained a blanket “no damage for delay” clause, and General
Condition 91.L, which provided that, notwithstanding General Condition 91.K, the Contractor
was entitled to additional compensation for “direct costs proximately and foreseeably resulting
from unreasonable delay caused by the Owner or the Engineer due to causes within their
control.” The contract defined the term “unreasonable delay” to mean delay (i) that is caused by
the bad faith or willful, malicious or grossly negligent conduct of the Owner or Engineer, or (ii)
that is so severe that it constitutes an abandonment of the project by the Owner, or (iii) that
results from a failure of the Owner to meet its payment obligations to the Contractor or to
provide permits, right-of-way or easements necessary and indispensable for the project to
The Supreme Court held that “Without question, the provisions in General Condition
91.L of the Contract waive, release, and extinguish all unreasonable delay damages available to
the contractor, the Joint Venture, unless the unreasonable delay is coupled with UOSA‟s bad
faith, malice, gross negligence or abandonment of the Contract. Such a contract provision
contradicts the specific statutory prohibition of Code § 2.2-4335(A).” The parties were not free
to contract contrary to the statutory provision.
Upper Occoquan Sewage Auth. v. Blake, 266 Va. 582, 587 S.E.2d 721 (2003)
In a companion case to Blake Constr. v. Upper Occoquan Sewage Auth., above, the
Supreme Court affirmed in part and reversed in part the trial court‟s various rulings on UOSA‟s
application for costs and on the Joint Venture‟s multiple claims.
The trial court correctly denied UOSA‟s application for statutory costs under Code §2.2-
4335(C). There was no evidence in the record of a false or statutorily baseless claim for delay
damages upon which UOSA can base it application for statutory costs.
A lengthy jury trial was held on UOSA‟s plea in bar. Forty-six of the Joint Venture‟s
claims were submitted to the jury to determine whether the Joint Venture was procedurally
defaulted or time-barred from pursuing the claim. On a special verdict form, the jury found that
the Joint Venture was prohibited from pursuing seventeen of its claims and that twenty-nine of
the claims were not barred. The learned trial court entered an order in accordance with the jury‟s
verdict, denying UOSA‟s motion to strike and motion for a JNOV. The Supreme Court affirmed
the court‟s rulings as to all of the claims, except Work Order 127. There was no evidence in the
record to support the jury‟s verdict at to Work Order 127.
5. Summary Judgment
Quadros & Associates v. City of Hampton, 268 Va. 50, 597 S.E.2d 90 (2004)
Summary judgment was properly granted where there were no material facts in dispute.
In 1997 the plaintiff Quadros, a law firm, entered into a three-year contract with the City
of Hampton to handle the City‟s tax collection work. Under the contract, Quadros was to begin
collection efforts once the City referred an account and the City was to pay Quadros a percentage
of the amounts collected plus reimbursement for out-of-pocket expenses. Prior to 1999, the City
provided Quadros with information on any tax abatements or credits on a referred account.
When the City changed its software in 1999, it no longer provided that information to Quadros.
Quadros found it was unable to perform tax collection work for the City without the information
on abatements and credits. Quadros filed a motion for judgment against the City alleging breach
of contract. The trial court granted summary judgment to the City, agreeing with the City that the
contract did not require the City to refer any accounts to Quadros for collection.
The Supreme Court affirmed. Summary judgment was appropriate as no material facts
were in dispute. The contract‟s terms were plain and unambiguous. Under those terms, Quadros
was required to start collection procedures on accounts referred by the City after receiving the
necessary information. There was no obligation for the City to refer to Quadros any business or
to provide data regarding referred accounts on any time schedule. “Therefore, under the plain
terms of the contract, the City‟s provision of incomplete information to Quadros for some of the
delinquent accounts did not constitute a breach of contract.”
V. CORPORATIONS & PARTNERSHIPS
1. Corporations; Piercing the Corporate Veil
Dana v. 313 Freemason, 266 Va. 491, 587 S.E.2d 548 (2003)
The trial court did not err in piercing the corporate veil of a closely held corporation and
imposing liability for a judgment against the corporation on its shareholders.
313 Freemason, a condominium association, brought suit against the condominium‟s
developer, Freemason Associates, Inc. and its individual shareholders for violation of the
Virginia Condominium Act. The trial court ruled that the individual shareholders could not be
held directly liable to the condominium association but, in the event of a judgment against the
corporation, the association could present evidence in an attempt to pierce the corporate veil.
The jury returned a verdict against the corporation for $37,054. The trial court held a post-trial
hearing and granted the plaintiff‟s motion to pierce the corporate veil.
The Supreme Court affirmed. The decision to ignore the separate existence of a corporate
entity and impose personal liability upon shareholders for debts of the corporation is an
extraordinary act to be taken only when necessary to promote justice. There is no single rule or
criterion that can be applied to determine whether piercing the corporate veil is justified. Each
case must be considered in the context of its own specific circumstances. The trial court properly
recognized that disregarding the corporate entity is usually warranted only under extraordinary
circumstances where the shareholders sought to be held personally liable have controlled or used
the corporation to evade a personal obligation, to perpetrate fraud or a crime, to commit an
injustice, or to gain an unfair advantage. Piercing the corporate veil is justified when the unity of
interest and ownership is such that the separate personalities of the corporation and the
individuals no longer exist and to adhere to that separateness would work an injustice. The
evidence adduced at the post-trial hearing amply supported the trial court‟s factual finding that
the corporation was formed to evade the shareholders‟ personal liability for known problems
with the condominium‟s roof. The evidence supports the trial court's factual finding that the
unity of interest and ownership was such that the separate personalities of the corporation and its
shareholders did not exist. The corporation was the “stooge” or “dummy” of the shareholders.
As a matter of law, piercing the veil of the corporation was necessary to avoid an injustice. The
corporation was never capitalized even in a de minimis amount. After the sale of the
condominiums, the only purpose for which the corporation existed was to shield the shareholders
from liability for selling the condominiums with known defects in the roof.
2. Limited Liability Company; Dissolution
The Dunbar Group, LLC v. Tignor, 267 Va. 361, 593 S.E.2d 216 (2004)
The evidence did not support the chancellor‟s determination that a limited liability
company should be dissolved, where the evidence showed that it was reasonably practicable to
carry on the business of the company following the expulsion of a member.
Dunbar and Tignor each owned a 50% membership interest in XpertCTI, LLC, a Virginia
limited liability company (“Xpert”). The two members had a falling out. Dunbar and Xpert filed
a bill of complaint seeking the expulsion of Tignor from the LLC. Tignor filed a bill of
complaint for judicial dissolution of Xpert. The chancellor expelled Tignor from Xpert and
ordered that the company continue until its major contract was concluded, at which time it was
ordered to dissolve. Dunbar appealed, objecting to that portion of the decree that ordered the
eventual dissolution of Xpert.
The Supreme Court affirmed in part and reversed in part. Under Code § 13.1-1047, a
limited liability company may be dissolved “if it is not reasonably practicable to carry on the
business in conformity with the articles of incorporation and any operating agreement.” Here,
the chancellor did not evaluate the evidence in light of the fact that Tignor was being expelled as
a member and manager of Xpert. After his expulsion, Tignor‟s role was changed from a manager
to a passive investor. “The record fails to show that after this change in the daily management of
Xpert, it would not be reasonably practicable for Xpert to carry on its business pursuant to its
operating authority.” Indeed, the provision in the decree that ordered Xpert to continue in
business for so long as its major contract was in effect showed that it would be reasonably
practicable for Xpert to continue to operate for an extended period. The Court affirmed that part
of the chancellor‟s ruling expelling Tignor as a member of the limited liability company.
3. Limited Partnership Dissolution
Waikoloa Limited Partnership v. Arkwright, 268 Va. 40, 597 S.E.2d 49 (2004)
In a partnership dissolution action, the chancellor had no authority to order one limited
partner to purchase the minority partners‟ interests.
In 1969, four Virginia limited partnerships purchased land in Hawaii. Joseph and Jane
Coker were the general partners of each of the partnerships. Joseph Coker was the managing
general partner. Arkwright, Faust and Loughrige are limited partners of two of the partnerships,
Eiwa and Ehiku. Each of the partnership agreements provided that, upon dissolution of the
partnership, the general partner shall liquidate the partnership‟s assets, pay its debts, and
distribute the net proceeds among the partners. Alternatively, if the holders of 60% of the
partnership‟s interests want to purchase the partnership assets, they have the right to buy out the
minority partners. In 1988, Joseph Coker had a stroke and could no longer act as managing
general partner. Jane Coker hired Bruns to manage the partnerships. In 1994, Bruns restructured
the partnerships by creating Waikoloa Limited Partnership. After this restructuring, Waikoloa
owned 100% of the partnership interests in two of the partnerships, plus 90% of Eiwa and 88%
of Ehiku. Jane died in 1998. Waikoloa invoked the buyout provisions of the partnership
agreements. Arkwright, Faust and Loughrige refused to sell their interests to Waikoloa.
Waikoloa filed a bill of complaint seeking to enforce the buyout provisions of the partnership
agreements. The minority partners filed a cross bill asking the chancellor to declare that the
partnerships were dissolved in 1988 upon Joseph Coker‟s “de facto retirement” and that
Waikoloa must pay the minority partners for their interests in an amount based on the value of
the property at that time. (The property was valued at $8,700,000 in 1991 and $3,655,000 in
The chancellor ruled that the partnerships dissolved in 1988 when Joseph Coker in effect
retired as the managing general partner. Waikoloa was ordered to buy the minority partners‟
interests based on the value of the property in the 1991 appraisal.
The Supreme Court reversed. The language of the partnership agreements is plain and
unambiguous. Upon dissolution, the general partner is to proceed with dispatch to sell or
liquidate the assets of the partnership. Thus, when Joseph Coker retired in 1988, Jane Coker, as
the sole remaining general partner, had the obligation to sell or liquidate the partnership assets.
Jane‟s failure to take this action did not provide a basis for the chancellor‟s imposition of a duty
on Waikoloa to purchase the minority partners‟ interests in accordance with the 1991 appraisal.
Waikoloa was not even in existence in 1988 when the partnerships dissolved. Since its creation
in 1994, Waikoloa was merely a limited partner in Eiwa and Ehiku. Waikoloa had no duties or
obligations as a general partner under the partnership agreements with respect to the dissolution
of the partnerships. That Waikoloa was willing to purchase the interests based on the 1999
appraisal, as evidenced by its bill of complaint, did not impose a duty on it to purchase the
interests based on the 1991 appraisal. It was error for the chancellor to impose on Waikoloa a
duty to purchase the minority partners‟ interests. “A chancellor must have a cognizable basis for
granting equitable relief and is not authorized to take a particular course of action simply because
he thinks that such action is just and appropriate.”
VI. WILLS, TRUST & ESTATES
1. Surviving Spouse’s Elective Share; Burdens of Proof
Chappell v. Perkins, 266 Va. 413, 587 S.E.2d 584 (2003)
Under the augmented estate statute, the person seeking to include property in the
augmented estate bears the burden of proof to establish the inclusion under Code § 64.1-16.1(A)
and the person seeking to exclude property from the augmented estate bears the burden of proof
to establish the exclusion under Code § 64.1-16.1(B).
Carole Chappell died testate in 1997. Her husband, Walter Perkins, was not a beneficiary
under the will. He claimed his elective share of Carole‟s augmented estate under Code § 64.1-
13. He filed a petition asking the trial court to determine the amount of his share, contending that
the estate had improperly excluded from the augmented estate two investment accounts and some
real property. The trial court ruled that the estate failed to carry its burden of proof to establish
that the contested property should be excluded from the augmented estate.
The Supreme Court affirmed. The trial court determined correctly that the estate had the
burden of proof to establish the exclusions. The trial court also correctly applied the statute as it
existed at the time of Carole‟s death in 1997 to include in the augmented estate the value of two
investment accounts that contained funds Carole received from her first husband‟s retirement
program and life insurance following his death and from the sale of their house. Finally, the trial
court did not err in including in the augmented estate the value of real property that Carole and
Walter transferred by deed of gift to Carole during the marriage. That conveyance was not
subject to Code § 64.1-16.1(B)(i) because it did not result in a diminution of Carole‟s estate.
2. Mental Capacity to Elect Share of Augmented Estate
Jones v. Peacock, 267 Va. 16, 591 S.E.2d 83 (2004)
In a case of first impression, the Supreme Court enunciated the standard of mental
capacity required for a surviving spouse to be competent to elect a share of his or her deceased
spouse‟s augmented estate under Code § 64.1-13.
Geraldine Jones died in 2000. Her will was admitted to probate. Her husband, Franklin
Jones was residing in a nursing home at the time he executed notice of claim to elect his share of
Geraldine‟s augmented estate. He died two days later. The executor of Geraldine‟s estate
claimed that Franklin was not mentally competent to execute the notice of claim. The executor
argued that the mental capacity to execute a notice of claim under Code § 64.1-13 should be the
same as required to execute a deed or contract. Franklin‟s sons maintained that the mental
capacity to execute a notice of claim should be that applicable to the making of a will. The trial
court applied the level of competence required to make a deed and held that Franklin “did not
understand the nature of the notice of claim and the consequences of signing it” and, therefore,
the notice of claim was invalid.
The Supreme Court reversed. This is a case of first impression. The distinct nature of an
election warrants a level of competency uniquely connected to that act. “We hold that at the time
an election is made under Code § 64.1-13, the surviving spouse must have the capacity to
understand his right to elect against the will and receive a share of the estate established by law
and to know that he is making such an election.” To be competent, the electing spouse need not
know the specific amount that will be received by the election. It is irrelevant to the
determination of competency whether the surviving spouse uses good judgment in making the
3. Direct Lineal Descendants
McGehee v. Edwards, 268 Va. 15, 597 S.E.2d 99 (2004)
The term “direct lineal descendants” used in inter vivos trusts created before 1978 does
not include adopted persons.
From 1929 to 1931, the seven children of Dr. and Mrs. Jones created a total of eleven
inter vivos trusts. Each trust had a class of beneficiaries described as “direct lineal descendants.”
In 2000, the trial court was asked to determine whether direct lineal descendants included
adopted children. The chancellor ruled that it did.
The Supreme Court reversed. The trial court erroneously applied a presumption
“purportedly adopted in other jurisdictions” that “if beneficiaries in a class are to be identified
over a period of time, the grantor intends that changes in the law subsequent to the execution of
the trust be grafted in the trust.” Virginia has never considered the presumption adopted by the
trial court in construing trusts. It certainly does not apply in construing wills. A will is construed
as if the testator executed it immediately before death. “Consistent with the rule of construction
of wills, unless the language shows a contrary intent, the language of an inter vivos trust should
be construed according to the law in effect at the time the trust is executed.” At the time the
Jones Family Trusts were created, the term “issue,” which is synonymous with “direct lineal
descendants” did not include adopted children. Although the General Assembly changed the law
when it adopted Code § 64.1-71.1, that statute by its terms does not apply to trusts executed
Justices Agee and Keenan concurred in part and dissented in part. They would have held
that the chancellor did not have jurisdiction to address whether adopted children are within the
class of “direct lineal descendants” because the issue was raised in an answer, not in the original
bill of complaint. The bill of complaint sought the guidance of the court only on the issue of
children born out of wedlock. The defendant who sought an adjudication of the rights of adopted
children should have filed a cross-bill.
1. Insurance Application; Misstatements
Montgomery Mutual Insur. v. Riddle, 266 Va. 539, 587 S.E.2d 513 (2003)
Under Code § 38.2-309, an insurance company must actually rely on a misstatement in an
application for insurance before the insurance policy may be voided.
Riddle, a subcontractor, applied for general liability and worker‟s compensation insurance
with Montgomery Mutual through its agent Wyvill. The application apparently contained one or
more misstatements. Wyvill sent the application to Montgomery with the notation that the
insurance was “bound” effective April 20, 2000. On April 29, an employee of Riddle was
electrocuted on the job. On May 2, Riddle submitted a claim. Montgomery Mutual received
Riddle‟s application on May 3. The employee died on May 4. Montgomery Mutual denied
coverage. In a declaratory judgment action, the trial court found in favor of Riddle, ruling that
Wyvill did not rely on any of Riddle‟s alleged misrepresentations in deciding to issue the binder.
Montgomery Mutual appealed.
The Supreme Court affirmed. The Court “reaffirmed the correctness” of its interpretation
of Code § 38.2-309 in Commercial Underwriters Insur. v. Hunt & Calderone, P.C., 261 Va. 38
(2001). In that case, the Court held that, in order to void an insurance policy based on the
insured‟s misrepresentation, the insurance company must show, by clear evidence: (1) that the
statement on the application was untrue; and (2) that the insurance company‟s reliance on the
false statement was material to the company‟s decision to undertake the risk and issue the policy.
To prove the falsity is not sufficient. The insurer must prove clearly that truthful answers would
had reasonably influenced the company‟s decision to issue the policy. The trial court‟s factual
determination that Wyvill did not rely on the misrepresentations was not plainly wrong.
2. Uninsured Motorist Coverage; “Use” of Vehicle
Fireman‟s Fund Insur. v. Sleigh, 267 Va. 768, 594 S.E.2d 604 (2004)
The plaintiff‟s uninsured motorist coverage applied when an uninsured motorist
intentionally hit the plaintiff with her car door, causing injury. The uninsured motorist was
“using” the vehicle within the meaning of the policy terms and Code § 38-2206.
Plaintiff Sleigh was a parking enforcement officer. She was writing a ticket for Gibson‟s
car when Gibson intentionally opened her car door with the purpose of assaulting Sleigh.
Sleigh‟s insurer filed a declaratory judgment action seeking an adjudication that the UIM
coverage did not apply to the altercation between Sleigh and Gibson. The trial court ruled in
favor of Sleigh, holding that the UIM coverage applied.
The Supreme Court affirmed, rejecting the insurer‟s argument that the UIM coverage only
applied when an automobile is used as an automobile, not a weapon. In Virginia, the intent of
the uninsured tortfeasor is irrelevant to the question of coverage. The determinative question is
the nature of the use of the uninsured vehicle. When the injury arises out of the use of the
uninsured vehicle in the manner for which is was designed and as reasonably contemplated by
the parties to the insurance contract, coverage exists where there is a causal relationship between
the use and the injury. Here, the injury was caused by a car door being opened and closed. Car
doors are designed to be opened and closed. Such use is with the contemplation of the parties to
the insurance contract. Gibson‟s use of her car door as designed was use of the uninsured vehicle
as a vehicle and was causally related to Sleigh‟s injury.
Slagle v. Hartford Insur. Co., 267 Va. 629, 594 S.E.2d 582 (2004)
An vehicle was being “used” within the meaning of Code § 38.2-2206(B) when the
plaintiff was directing the vehicle in traffic, even though the plaintiff had not occupied the
vehicle and had no immediate intent to occupy the vehicle.
Slagle was directing a tractor-trailer at a construction when he was struck and injured by a
vehicle driven by Billones. Billones tendered her full policy limits for bodily injury. Slagle then
sought underinsurance coverage from Hartford, the insurer of the tractor-trailer he was directing
in traffic. Hartford denied coverage, on the basis that Slagle was not an “insured” under its
policy because he was not an operator or occupant of the insured vehicle at the time of the
accident. In a declaratory judgment action, the trial court awarded summary judgment to
The Supreme Court reversed. In determining whether an injured person is using an
insured vehicle under Code § 38.2-2206(B), the critical inquiry is whether there was a causal
relationship between the incident and the employment of the insured vehicle as a vehicle. The
inquiry is highly fact-specific and does not lend itself to resolution by strict guidelines or a set
formula. Some general guidelines have been established. The injured person must be using the
insured vehicle as a vehicle and as an integral part of his mission. Actual use of a vehicle as a
vehicle is not limited to the vehicle‟s transportation function. Use of the vehicle need not be the
direct, proximate cause of the injury in the “strict legal sense.” Whether the injured person
occupied the vehicle or intended to occupy the vehicle is a factor to consider, but it is not a
prerequisite to coverage. Here, Slagle‟s hand signals were required by the driver of the tractor-
trailer to complete his maneuvering of the vehicle. “Accordingly, there was a causal relationship
between the incident in which Slagle was injured and the employment of the tractor-trailer
because Slagle‟s acts in assisting the driver of that vehicle were an integral part of Slagle‟s
mission to locate the construction equipment at a particular place on his company‟s construction
site.” The Court emphasized that its holding was predicated on the specific facts under which
Slagle‟s injury occurred.
Justices Kinser and Lacy dissented. They would have held that Slagle was not an insured
under Hartford‟s policy. The cautioned that the decision will unreasonably expand the class of
persons entitled to uninsured and underinsured coverage to include others directing traffic, such
as police officers and tower directors.
3. Underinsured Motorist Coverage
Dyer v. Dairyland Insur. Co., 267 Va. 726, 594 S.E.2d 592 (2004)
Where joint tortfeasors and multiple insurance policies are involved, the plaintiff could
recover under both the bodily injury provision and the underinsured motorist provision of the
Dyer was a passenger on a motorcycle owned and operated by Atkinson. Dyer was
seriously injured when Atkinson‟s motorcycle collided with a motorcycle owned and operated by
Roberts. Atkinson and Roberts were jointly and concurrently negligent and their negligence
proximately caused the accident. Dairyland Insurance covered both motorcycles. Atkinson‟s
policy had limits of $100,000 bodily injury coverage per claimant and $100,000 UM/UIM
coverage per claimant. Roberts‟s policy had limits of $25,000 bodily injury coverage per
claimant and $25,000 UM/UIM coverage per claimant. Dairyland tendered to Dyer the full
$100,000 limit for bodily injury under the Atkinson policy and the full $25,000 policy limit for
bodily injury under Roberts‟s policy. Dyer obtained a $275,000 judgment against Roberts. Dyer
then contended that she was entitled to $75,000 in UIM coverage under the Atkinson policy.
Dyer argued that Roberts was underinsured in an amount equal to his $25,000 bodily injury
coverage and the $100,000 of UIM coverage under the Atkinson policy. Dairyland argued that it
was not required to provide UIM coverage under the Atkinson policy because it had already
tendered the full amount of the bodily injury coverage under that policy. The trial court awarded
summary judgment to Dairyland.
The Supreme Court reversed. Dyer was underinsured under the Atkinson policy as to the
Roberts motorcycle within the meaning of Code § 38.2-2206(B). Dyer‟s entitlement of the UIM
coverage under the Atkinson policy does not mean that the Atkinson motorcycle was
underinsured as to itself. It means that Roberts, a joint and several tortfeasor, was underinsured
and therefore Dyer is entitled to UIM coverage under the Atkinson policy. “We … hold that
Dyer is entitled to UIM coverage under the Atkinson policy equal to the difference between
Robert‟s [sic] coverage under his policy ($25,000) and the available UIM coverage under the
Atkinson policy ($100,000), a total of $75,000.”
4. UM/UIM Coverage
A. Omnibus Clause
Johnson v. Windsor Insur. Co., 268 Va. 196, 597 S.E.2d 31 (2004)
A insurer was required to provide coverage to the named insured who was alleged to have
negligently entrusted the vehicle to a permissive user after the insurer had settled part of the
claim against the permissive user where the insurance policy failed to limit its liability under
Code § 38.2-2204.
Johnson sustained serious injuries when the vehicle in which he was a passenger was rear
ended by a car driven by Quang Huynh and owned by Quang‟s father, Thien Huynh. Windsor
Insurance insured the Huynh vehicle. The father Thien was the named insured. The son Quang
was also an insured both as a resident of his father‟s household and as a permissive user of the
vehicle. The policy limits were $100,000 per person, $300,000 per accident. The policy
provided that the coverage applied separately to each insured against whom a claim is made or a
suit is brought. Johnson brought suit against both father and son, alleging damages arising out of
the son‟s negligent operation of the vehicle and the father‟s negligent entrustment of the vehicle
to the son. Johnson settled his negligent operation claim against the son for $100,000 paid by
Windsor. Johnson continued to look to Windsor to cover the negligent entrustment claim.
Windsor filed a declaratory judgment action, seeking a declaration that the maximum of its
liability for the accident was $100,000 regardless of the number of insureds who might by liable
to Johnson. The trial court granted summary judgment to Windsor.
The Supreme Court reversed. The 1999 amendment to Code § 38.2-2204 (the omnibus
No policy or contract of bodily injury or property damage liability insurance,
covering liability arising from the ownership, maintenance, or use of any motor
vehicle . . . shall be issued or delivered in this Commonwealth to the owner of
such vehicle . . . unless the policy contains a provision insuring the named
insured, and any other person using or responsible for the use of the motor vehicle
. . . with the expressed or implied consent of the named insured; . . . however,
nothing contained in this section shall be deemed to prohibit an insurer from
limiting its liability under any one policy for bodily injury or property damage
resulting from any one accident or occurrence to the liability limits for such
coverage set forth in the policy for any such accident or occurrence regardless of
the number of insureds under that policy.
(The language added by the 1999 amendment is italicized.) The plain language of the 1999
amendment enables an insurer to limit its liability even if more that one insured is liable for the
accident or occurrence. Such limit is that stated as the “per accident or occurrence” limit, rather
that the “per person” limit. Thus, in the present case, Windsor‟s total obligation under its policy
is its “per accident” limit of $300,000, and Windsor must provide further coverage for the
negligent-entrustment claim against its named insured.
B. Waiver of Higher Limits by One Named Insured
Atkinson v. Penske Logistics, LLC, 268 Va. 129, 597 S.E.2d 518 (2004)
The decision of a single named insured on a business automobile insurance policy to
waive uninsured motorist coverage higher than the statutory minimum is binding upon all other
named insureds under the policy pursuant to Code § 38.2-2206.
Atkinson was driving a tractor-trailer when he was injured by an unknown driver. The
tractor was owned by Penske Truck Leasing and leased to Penske Logistics. Penske Logistics
owned the trailer. Both Penske Leasing and Penske Logistics were named insureds on a liability
policy issued by Old Republic covering the tractor-trailer. Atkinson brought a declaratory
judgment action to determine the amount of coverage available to him. He asked for a
declaration that Old Republic was obligated to provide coverage in the amount of $2,000,000
($1,000,000 for the tractor and $1,000,000 for the trailer). The defendants moved for summary
judgment, arguing that Penske Leasing waived UM/UIM coverage above the statutory minimum
of $25,000 per person. Atkinson agreed that Penske Leasing waived higher UM/UIM coverage,
but contended that the waiver was not binding on Penske Logistics. The trial judge ruled that
Penske Leasing‟s waiver of higher UM/UIM coverage was binding on Penske Logistics under
Code § 38.2-2206.
The Supreme Court affirmed. In 1995, the General Assembly amended Code § 38.2-
2206(A) to provide that: “Those limits shall equal but not exceed the limits of the liability
insurance provided by the policy, unless any one named insured rejects the additional uninsured
motorist insurance coverage by notifying the insurer as provided in subsection B of § 38.2-2202”
(emphasis added). It is “abundantly clear that the General Assembly specifically intended to
permit a single named insured to bind other named insureds by its rejection of higher UM/UIM
5. Coverage Disputes; Damages
National Housing Bldg. Corp. v. Acordia of Va. Insur. Agency, 267 Va.
247, 591 S.E.2d 88 (2004)
The trial court correctly struck the evidence in this case where, even if the
insurance company was negligent in not naming the plaintiff as a named insured on a
builder‟s risk policy, the loss complained of was not covered by the policy.
Plaintiff National Housing Building Corporation (“NHBC”) brought suit against
Acordia, an insurance agency, alleging that Acadia was negligent in failing to include
NHBC as a named insured on a builder‟s risk policy issued to NHBC‟s parent company.
NHBC had expended over $500,000 in taking measures to correct problems with a failing
retaining wall. The trial court found that Acordia was negligent, but struck NHBC‟s
evidence, ruling that NHBC had not proved that it suffered a “covered loss.”
The Supreme Court affirmed. The policy did not cover any loss caused by “error,
omission or deficiency in designs, plans or specifications.” NHBC did not dispute that it
defectively designed and built the retaining wall because its specifications failed to
consider properly the steep incline of the project. NHBC could not circumvent this clear
exclusion by claiming that the remediation expenses were covered under the policy‟s
requirement that the insured mitigate its damages in the event of a loss. Where there is no
liability there can be no recovery.
VIII. REAL PROPERTY
1. Restrictive Covenants
A. Burdens of Proof
Perel v. Brannan, 267 Va. 691, 594 S.E.2d 899 (2004)
Once the plaintiff establishes that a restrictive covenant has been violated, the defendant
must establish the defense that the covenant should not be enforced.
Perel owned land adjacent to a parcel owned by the Brannans. The Brannans‟ lot was
part of the Locke Lane subdivision and was subject to restrictive covenants that, among other
things, established buffer zones, setback requirements and “no build” areas. The Brannans‟
construction of their house resulted in encroachments into the buffer and setback areas. Perel
sought an injunction barring the Brannans from further encroachments and ordering restoration
of the disturbed areas. Perel sought an injunction against Locke Lane ordering it to enforce the
covenants against the Brannans. The trial court found that the Brannans violated the covenants
by removing mature trees from the buffer area and by constructing a below-grade patio in the
setback area. The trial court found that the Brannans‟ excavation of the lot and construction of a
retaining wall did not violate the covenants. The trial court found in favor of Locke Lane on
Perel‟s request that the subdivision be ordered to enforce the covenants. Perel, the Brannans and
Locke Lane appealed.
The Supreme Court affirmed in part and reversed in part. The trial court erred in holding
that the retaining wall did not violate the restrictive covenants. No walls are permitted in the
setback area under the terms of the restrictive covenants. The question remains whether the court
should have ordered removal of the retaining wall. Once a plaintiff has proved a violation of a
restrictive covenant, the plaintiff is usually entitled to the relief requested (here, removal of the
wall), unless the defendant establishes a defense or the court finds enforcement unusually
difficult. A defendant may avoid imposition of the remedy sought if it would create a hardship,
or injustice that is out of proportion to the relief sought, or if performance by the defendant is
impossible, or if enforcement of the decree would be unusually difficult for the court. The trial
court properly found that the tree removal violated the covenants. The trial court did not order
replacement of the trees, however, because Perel had not shown that 80- to 100-foot trees could
be successfully replanted in the buffer area. The burden to establish the defense to enforcement
was on the Brannans, not Perel. The case was remanded to determine if the Brannans can
establish a defense to enforcement. The trial court properly ruled that Locke Lane could not be
compelled to enforce the covenants. Although Locke Lane had the right to sue a violator of the
covenants, it had no duty to enforce the covenants. The trial court erroneously ordered the
removal of the patio. Perel never mentioned the patio in his amended bill of complaint. It was
error to order relief that was not pled.
B. Enforcement of Covenants; Vertical Privity
Barner v. Chappell, 266 Va. 277, 585 S.E.2d 590 (2003)
A restrictive covenant barring any construction on a lot in a subdivision is enforceable by
owners of lots in the subdivision who establish vertical privity.
In 1930, Governor Pollard recorded a plat subdividing land he owned. He then sold many
of the lots in the subdivision. In 1932, Governor Pollard conveyed Lot 8 in the subdivision to the
owner of an adjacent lot. The deed to Lot 8 provided that “no house, garage or structure of any
kind shall be erected” on Lot 8. The restriction was to run with the land “forever.” At the time
of this deed, Governor Pollard had conveyed all of the other lots in the subdivision, except for
one undivided parcel. In 1937 and 1938, the undivided parcel was further subdivided and
conveyed out. In 1998, the owners of Lot 8 began to construct a single-family house the lot. The
neighbors filed a bill of complaint to enforce the restriction on building on Lot 8. The chancellor
found that the restrictions in the deed to Lot 8 could be enforced by those lot owners who trace
their ownership in the subdivision to deeds that were made after the 1932 deed containing the
restrictions. Alternatively, the chancellor found that all of the lot owners could enforce the
restrictions on Lot 8 as an equitable servitude.
The Supreme Court affirmed in part and reversed in part. The chancellor correctly ruled
that only those lot owners who established “vertical privity” could enforce the restrictions in the
1932 deed to Lot 8. Vertical privity “requires that the benefit of a restrictive covenant extend
only to „one who succeeds to some interest of the beneficiary in the land respecting the use of
which the promise was made.‟” Only those landowners who trace their ownership of property in
the subdivision to original grantees in deeds executed after the 1932 deed to Lot 8 met the
requirements of vertical privity. That is because only those lot owners succeeded to the interest
of a beneficiary of the covenant. The owners of Lot 8 failed to prove that the purpose of the
restriction no longer exists. The evidence supported the chancellor‟s finding that Governor
Pollard intended to keep Lot 8 as an open, green space. The chancellor erred, however, in his
alternative ruling that all the lot owners could enforce the restrictions on Lot 8 as an equitable
servitude. By definition, an equitable servitude arises when a common grantor imposes a
common restriction upon land developed for sale in lots. Lot 8 is the only lot in the subdivision
on which no construction is permitted. Therefore, the prohibition on construction on Lot 8 is not
a common restriction on the lots in the subdivision. The restriction is not enforceable as an
equitable servitude. The chancellor‟s grant of a permanent injunction against the owners of Lot 8
C. Declaratory Judgment
River Heights Assoc. Limited Partnership v. Batten, 267 Va. 262, 591
S.E.2d 683 (2004)
A dispute between homeowners in a subdivision and a developer who planned to develop
four unimproved lots in the subdivision contrary to a restrictive covenant presented a justiciable
controversy ripe for resolution by declaratory judgment.
Batten and others owned lots in a subdivision. They brought a declaratory judgment
action to enforce a restrictive covenant barring commercial development of four other
unimproved lots in the subdivision that abutted Route 29. Wood, the developer, responded that
the bill of complaint failed to state a cause of action on which relief could be granted, and that
the restrictive covenant was unenforceable. After an ore tenus hearing, the trial court found in
favor of Batten, ruling that the restrictive covenant was enforceable and prevented Wood from
developing the lots for commercial purposes.
The Supreme Court affirmed. The trial court did not err in overruling Wood‟s demurrer
to the bill of complaint. A justiciable controversy was sufficiently alleged. Furthermore, the
evidence at the ore tenus hearing was sufficient to prove that a justiciable controversy existed.
Wood had at least constructive notice from the record chain of title of the restrictive covenant.
The restrictive covenant was enforceable although it greatly reduced the value of Woods‟ lots.
“Equity should not set a naught solemn covenants voluntarily made, when to do so would enrich
the covenantor and injure the covenantee.” Finally, the changes both within and without the
subdivision in the area were not so radical so as to defeat the purpose of the restrictive covenant.
D. Prohibition on Resubdivision
Barris v. Keswick Homes, 268 Va. 67, 597 S.E.2d 54 (2004)
The trial court erred when it held that a lot in a subdivision was no longer subject to a
1948 restrictive covenant prohibiting resubdivision.
The Prospect Hill subdivision was created in 1948. The deed of dedication imposed
restrictive covenants running with the land. One such covenant provided that “there shall be no
resubdivision of any of said lots, without the written consent of three-fourths of the then owners
of the lots in said subdivision.” In 1984, owners of three quarters of the lots in the subdivision
entered into a series of agreements permitting the resubdivision of their lots. One such
instrument purported to “vacate and release” the restrictive covenant as to Lot 7. Lot 7 was
resubdivided into Lot 7A and the remaining portion of the original Lot 7 was combined with
another lot. In 2002, the plaintiffs, lot owners in Prospect Hill, sought to enjoin Keswick Homes
from further subdividing Lot 7A without the consent of three quarters of the lot owners. The trial
court ruled that Lot 7A was no longer subject to the 1948 restriction on resubdivisions.
The Supreme Court reversed. The 1948 deed of dedication prohibits resubdivision
without the consent of three quarters of the then lot owners. The plain meaning of these words is
that before any resubdivision of a lot is permissible, consent must be obtained from at least three-
fourths of the other owners of the lots at the time the resubdivision is sought. It does not grant
three-fourths of the lot owners the right to grant a perpetual release of a lot from the restriction
on resubdividing. Thus, although inartfully worded, the 1984 instrument was a consent by three-
fourths of the then lot owners to a one-time resubdivision of Lot 7A. For Keswick Homes to
further resubdivide Lot 7A, it must obtain the consent of at least three-fourths of the current lot
owners in Prospect Hill. Furthermore, the complainants were not barred by the doctrine of
“estoppel by deed” from asserting their present claims.
E. Exemptions; Nuisance Per Se
Turner v. Caplan, 268 Va. 122, 596 S.E.2d 525 (2004)
An exemption of certain lots in a residential subdivision from the prohibition on raising
livestock on the lots was not unreasonable. The keeping of a horse on one of the exempted lots
was not a nuisance per se.
In 1975, Turner created a residential subdivision. The subdivision‟s covenants prohibited
the keeping of “pigs, goats, sheep, cows, or any other livestock.” Exempt from that restriction,
however, were certain lots retained by Turner and used as a pasture. The restrictive covenants
also prohibited maintaining a nuisance on any of the lots. Turner kept a horse in his pasture. In
2002, some of the other lot owners filed a bill of complaint seeking to enjoin Turner from
keeping a horse in the pasture. The trial court found that Turner‟s keeping of a horse violated the
covenants and constituted a nuisance.
The Supreme Court reversed. Contrary to the trial court‟s ruling, it was not
“unreasonable” for Turner to have exempted some lots from the ban on livestock. Nor was the
horse a nuisance per se as the trial court apparently found. “[W]hile there is some confusion in
the books as to the meaning of the term nuisance per se, the tendency of modern times is to
restrict its use to such things as are nuisances at all times and under all circumstances.” The trial
court‟s order was too broad in holding that Turner‟s horse in his pasture was a nuisance at all
times and under all circumstances.
2. Subdivision Ordinances; No Private Rights of Action to Enforce
Shilling v. Jimenez, 268 Va. 202, 597 S.E.2d 206 (2004)
There is no private right of action to enforce a subdivision ordinance.
Jimenez subdivided her land pursuant to a county ordinance that permits subdivisions of
land that otherwise would not qualify for subdivision if the resulting lots are conveyed to family
members. Shilling and another neighbor filed a bill of complaint seeking a judicial declaration
that Jimenez‟s “family subdivision” was a sham transaction that sought to evade the subdivision
ordinance in order to subdivide the land and sell it to developers. The developer who owned two
of the lots demurred, arguing that the sole authority to enforce the county‟s subdivision ordinance
is the county‟s governing body, and not private parties. The plaintiffs relied on the provision of
the local ordinance that said that anyone aggrieved by the interpretation, administration or
enforcement of the subdivision regulations may petition the circuit court “as provided by law.”
The trial court agreed with the developer and sustained the demurrer, ruling that the county
ordinance did not create a private cause of action.
The Supreme Court affirmed. There is no express grant of authority from the General
Assembly to counties permitting the creation of private causes of action to enforce subdivision
ordinances. Instead, the clear intent of the General Assembly is to vest in the governing body
and its agents the sole power to enforce subdivision ordinances. Because the neighbors had no
right of action, the trial court correctly sustained the demurrer.
3. Property Owners’ Associations
Dogwood Valley Citizens Assoc., Inc. v. Winkelman, 267 Va. 7, 590
S.E.2d 358 (2004)
A non-stock Virginia corporation is not a property owners‟ association within the
meaning of the Property Owners‟ Association Act where there is no express language in a
recorded instrument explicitly requiring the corporation to maintain the community‟s common
areas or roads.
Winkelman challenged the Dogwood Valley Citizens Association, Inc.‟s non-judicial sale
of two lots he owned. He claimed that the DVCA, a Virginia non-stock corporation, was not a
property owners‟ association within the meaning of the Virginia Property Owners‟ Association
Act because its recorded declarations do not contain an express duty for the DVCA to maintain
the community‟s common areas or roads. Alternatively, Winkelman argued that, if DVCA were
a property owners‟ association, it had authority only to sell “units” and not his unimproved lots.
The trial court agreed with Winkelman‟s alternative argument and voided the deeds conveying
Winkelman‟s lots to third party purchasers following the non-judicial sale. Both parties
The Supreme Court affirmed in part and reversed in part. The trial court reached the right
result for the wrong reasons. DVCA lacked the authority to conduct the non-judicial sales of
Winkelman‟s lots under Code § 55-516(I) because it was not a property owners‟ association
under the Property Owners‟ Association Act. Under the Act, a “property owners‟ association” is
“an incorporated or unincorporated entity upon which responsibilities are imposed and to which
authority is granted in the declaration.” A “declaration” in turn is defined as an instrument
recorded in the land records “that either (i) imposes on the association maintenance or
operational responsibilities for the common area or (ii) creates the authority in the association to
impose on lots, or on the owners or occupants of such lots, or on any other entity any mandatory
payment of money in connection with the provision of maintenance and/or services for the
benefit of some or all of the lots, the owners or occupants of the lots, or the common area.” Code
§ 55-509. The Court reasoned that, under that code section and Anderson v. Lake Arrowhead
Civic Association, Inc., 253 Va. 264 (1997), DVCA was not a property association. No
document recorded in the land records expressly required DVCA to maintain the common areas
or the roads. “This duty must be expressly stated in the recorded documents and may not be
inferred or implied” (emphasis in original).
4. Rights of Landowners Adjacent to Publicly Dedicated Land
The Barter Foundation, Inc. v. Widener, 267 Va. 80, 592 S.E.2d 56 (2004)
The general public retained a right of way to use property as a public way where the town
had neither accepted the dedication of the street as a public highway nor abandoned the offer of
In 1944, the owner of property in the Town of Abingdon dedicated several tracts for
public street purposes. The Town never formally accepted one of areas dedicated for public
street purposes and no street has ever been built on the area. In 1999, Widener, an adjoining
landowner, sought to use the undeveloped street for access to his property. The Town responded
that Widener could mow, clear, grub and level the area. The Barter Foundation, which owned
the land on the other side of the undeveloped street, filed a bill of complaint asking the court to
find that that the dedicated but unbuilt street had been abandoned through lack of use and that
Barter is the owner of the area free and clear of the proposed easement. The chancellor found
that, although the Town had never accepted the dedication, a public right of way or easement
existed separately and independently from the dedication. The chancellor found that Widener
and the public had a right to use the undeveloped street as a public right of way.
The Supreme Court affirmed. The Town never formally accepted the dedication, nor did
the Town accept the dedication by implication. Either by common law or by the statutory
scheme in effect in 1944, a street dedicated by plat to public use did not impose the duty of
maintenance or potential liability upon the governing body until the public body accepted the
dedication. Nevertheless, the general public could accept the dedication by use of the right of
passage granted by the dedicator. The evidence at trial showed that the public used the right of
way infrequently. Thus, although the Town did not accept the dedication, the public has a right
to use the property for passage in accordance with the intent of the dedicator. The evidence
showed that the Town did not abandon the offer of dedication. There were no acts by the Town
that evinced an intent to abandon the offer. To the contrary, the Town was aware of the offer of
dedication and considered the area to be an unopened right of way usable for access to adjoining
5. Partition by Life Tenants
Maitland v. Allen, 267 Va. 714, 594 S.E.2d 918 (2004)
A life tenant of an estate in land cannot compel partition against the remaindermen.
In 1997, Maitland and her then-husband Allen executed five deeds of gift conveying
separate parcels to each of their five adult children. Maitland and Allen reserved a joint life
estate for themselves in the parcels with the remainder vested in the named children. Maitland
and Allen later divorced. Maitland filed suit to partition the parcels. The trial court ruled that
Maitland could compel partition against Allen, her co-life tenant, but not the remaindermen (the
children). Allen and the children appealed.
The Supreme Court affirmed in part and remanded the case for further proceedings.
Partition is governed by Code § 8.01-81. The trial court properly ruled that Maitland could not
compel partition against the remaindermen. Under that statute, tenants in common can compel
partition. Because Maitland and the children as remaindermen hold the successive estates of a
life tenancy and a remainder interest, they are not tenants in common and partition does not lie.
The Court did not address the Allen‟s cross appeal because the trial court‟s ruling that Maitland
could compel partition against her co-life tenant was not a final order.
6. Alienability of Remainderman Interest
Jones v. Hill, 267 Va. 708, 594 S.E.2d 913 (2004)
A lien may attach to the vested interest of a remainderman who takes from a life tenant
with full power to dispose of the entire corpus of the estate. The lienholder may enforce the lien
after the death of the life tenant, when the remainderman predeceases the life tenant.
Thomas Jones dies in 1993 survived by his wife, Annie, and five children, including
Vaiden Jones. Thomas left his wife a life estate in all his property with the remainder to his
children. Vaiden died in 2000. His wife Virginia was the sole beneficiary of his will. Annie
died in 2001. Virginia Jones and the surviving siblings of Vaiden sold the remaining property
bequeathed by Thomas in order to divide the proceeds equally in accordance with Thomas‟s will.
Hill had a judgment against Vaiden. She sought to enforce her judgment lien against the
proceeds of sale earmarked for Virginia, Vaiden‟s widow. The purchaser of the property brought
an interpleader action. The trial court determined that Vaiden‟s interest as a remainderman of the
property was a vested interest to which Hill‟s judgment lien attached and that Hill was entitled to
the disputed funds.
The Supreme Court affirmed. Under the “early vesting rule,” Vaiden‟s interest in the
property became vested upon Thomas‟s death, subject to divestment by Annie during her
lifetime. Vaiden‟s interest was never divested because Annie did not divest his interest before her
death. Hill‟s judgment was properly recorded. Therefore, she had a judgment lien on “all of the
real estate of or to which Vaiden was or became possessed or entitled.” Vaiden‟s vested interest
in the land was a legally cognizable right that was subject to his creditor‟s actions to satisfy
legally cognizable debts. Consequently, Hill had a lien on Vaiden‟s remainder interest in the
parcel when her judgment was docketed. Hill‟s lien remained attached to the parcel when it
passed to Virginia.
7. Landlord & Tenant; Rights Resident Family Members after Tenant’s Death
Carter v. Meadowgreen Associates, 268 Va. 215, 597 S.E.2d 82 (2004)
When a tenant dies, the rights of the tenant pass to her estate. In the area of Section 8
housing, federal law has not preempted Virginia law.
Martha Carter leased an apartment from Meadowgreen that was federally-subsidized
under the “Section 8 housing program.” Martha died. Her son Chev continued to live in the
apartment. Meadowgreen terminated the month to month lease due to the death of Martha. Chev
did not qualify for an apartment in his name because of his poor credit. Meadowgreen initiated
unlawful detainer proceedings and was awarded a writ of possession after a jury trial in circuit
The Supreme Court affirmed. Federal law defines “families” for the purpose of Section 8
housing to include the “remaining member of a tenant family.” However, Congress did not
undertake to re-write state landlord-tenant law as it may apply to Section 8 housing. In Virginia,
the death of a tenant for a fixed term does not terminate the lease. The tenant‟s interest passes to
her estate and her personal representative becomes liable for the rent until the end of the term.
Chev did not succeed to his mother‟s rights under the lease. He unlawfully detained the premises
from the landlord and the landlord was entitled to a writ of possession.
8. Coal Rights
Harrison-Wyatt, LLC v. Ratliff, 267 Va. 549, 593 S.E.2d 234 (2004)
In case presenting a “significant question of first impression in Virginia,” the Supreme
Court decided that when a surface owner of land has conveyed all the coal in and under his land,
he has not passed title to the coal bed methane along with the coal.
Plaintiff Ratliff and others owned the surface land and all the minerals upon and within it,
except the coal. Harrison-Wyatt owned the coal. Plaintiffs filed a declaratory judgment action
seeking a determination that they owned the coal bad methane (CBM). The trial court found in
favor of the plaintiffs.
The Supreme Court affirmed. The trial court examined the language of the 1887
severance deeds as well as 19th encyclopedia definitions of “coal” and correctly concluded that
the term did not include CBM. It was not improper for the trial judge to go outside the record to
consider definitions of “coal.” “Courts routinely resort to various reference materials for the
definition of terms contained in documents. In doing so, they are not limited to definitions, if
any, that may be offered into evidence by a litigant.”
IX. ADMINISTRATIVE LAW
1. School Boards; Grievance Procedures
Tazewell County Sch. Bd. v. Brown, 267 Va. 150, 591 S.E.2d 671 (2004)
A suspended school principal was subject to the state grievance procedure rather that the
local grievance procedure even though a suspension is not a grievable matter under the state
Brown was suspended with pay as principal of a Tazewell County high school. Brown
grieved his suspension under the state grievance procedure. The school board ruled that Brown‟s
suspension was not a grievable matter and reassigned Brown to a classroom teaching position
with a commensurate reduction in pay. Brown appealed this determination to the circuit court.
The trial court found that Brown‟s suspension was grievable under the local grievance
procedures. The trial court denied the school board‟s motion to find the dispute moot in that
Brown had been reinstated as a principal and reassigned to a classroom. At the Supreme Court,
the school board argued that the case was moot because Brown resigned from the school system
during the pendency of the appeal.
The Supreme Court reversed. The controversy was not moot. The actions of the school
board in suspending Brown adversely affected his professional reputation and were not “undone”
by his later reinstatement, reassignment and ultimate resignation. The fact of and reasons for his
suspension were part of his personnel record and would remain there unless removed based upon
a determination that the basis of the action was unfounded. In addition, relief other than
reinstatement could be afforded to Brown. Where relief can be provided, the action is not moot.
The trial court erred, however, in determining that Brown was subject to the local grievance
procedure and that his dispute with the school board was grievable. Brown was a “supervisory
employee” subject to the state grievance procedure. A principal falls under the definition of the
term “teacher” for the purposes of the state grievance procedure. The state grievance procedure
provides that a dispute over a suspension is not grievable.
2. Employee Grievance Procedures
Horner v. Department of Mental Health, 268 Va. 187, 597 S.E.2d 202 (2004)
The statutory grievance procedure applicable at the time of the controversy required that
the remedy provided by a state employee‟s “first-level respondent” be given effect. The
respondent‟s decision was not merely a recommendation that could be ignored by management.
Horner was an internist at Western State Hospital. In 2001, he was issued notices for
“Group II” offenses that resulted in his immediate termination. Horner contested his termination
under the statutory grievance procedure. At the first level of management review, Horner‟s
immediate supervisor supported the complete reversal of the disciplinary action and the
reinstatement of Horner with back pay. Management appealed this determination, and
management‟s position prevailed at all further stages of the administrative grievance process.
Horner appealed to circuit court. Interpreting a prior version of Code § 2.2-3003(D), the circuit
court ruled that the first-level respondent‟s decision was more than a recommendation and that
the first-level respondent had the authority to provide Horner with a remedy. Thus, the circuit
court ruled, the decisions of the hearing officer were contrary to law and the remedies of the first-
level respondent were reinstated.
The Supreme Court, reversing the Court of Appeals, agreed with the circuit court. In
clear language, the General Assembly has provided that “each level of management review shall
have authority to provide the employee with a remedy.” Code § 2.2-3003(D). A “remedy” is
“the means of enforcing a right or preventing or redressing a wrong; legal or equitable relief.”
The legislature provided the employee with the substantive right to be afforded a remedy by the
first-level respondent. Once the employee accepts the remedy, the statutory scheme existing at
the time precluded management from contesting the first-level decision. (In 2003, the statute
was amended to provide “Each level of management review shall have the authority to provide
the employee with a remedy, subject to the agency head's approval.” Emphasis added.)
3. DMV Regulation of Automobile Dealerships
Volkswagen of America, Inc. v. Smit, 266 Va. 444, 587 S.E.2d 513 (2003)
The Court of Appeals erred in affirming the Commissioner of the DMV‟s determination
that Volkswagen of America violated Code § 46.2-1569(7). The Commissioner failed to analyze
whether Volkswagen shipped a quantity of vehicles to the dealer that met the statute‟s
requirements. The Commissioner only considered whether Volkswagen‟s allocation
methodology complied with the statute. The language of Code § 46.2-1569(7) is plain and
unambiguous and required the Commissioner to “consider the actual monthly shipments that
Volkswagen made to [the dealer] in relation to the number of new vehicles imported by
Volkswagen on a national level in the particular vehicle categories covered under [the dealer‟s]
franchise agreement.” The Commissioner also failed to consider whether the dealer received the
number of vehicles needed to receive a percentage of new vehicle sales “equitably related” to the
number of these types of vehicles imported by Volkswagen nationally. Because the
Commissioner erroneously applied the statute, his finding that Volkswagen‟s allocation
methodology violated Code § 46.2-1569(7) was reversed.
X. CITIES, COUNTIES & TOWNS
1. Service Authorities
King George Serv. Auth. v. Presidential Serv. Co., 267 Va. 448, 593 S.E.2d 241
To be specifically enforced, the agreement of a county service authority to purchase a
privately-owned utility system must be authorized or ratified by a resolution of the service
In 1993, the King George Service Authority contracted to buy a small water system in the
county owned by Presidential. The service authority‟s board ratified the contract. Closing was
delayed beyond the originally-estimated date, while the service authority and Presidential
explored various scenarios by which Presidential would expand the water system, construct a
sewer system and sell to the authority the expanded water system and the sewer system. In 1999,
the service authority told Presidential that it had no binding obligation to purchase the water and
sewer systems. Presidential sued for specific performance. The trial court granted specific
The Supreme Court affirmed in part and reversed in part. A service authority is a public
body politic and corporate. Employees of a service authority may enter into contracts on behalf
of the service authority only when authorized to do so by a majority vote of its board members.
Although the board ratified the original purchase of the small water system, there was no
evidence in the record that the board ratified the later agreements for Presidential to expand the
water system, build a sewer system and sell to the authority the two systems. Therefore, the trial
court did not err in specifically enforcing the 1993 agreement for the service authority to
purchase the original water system, but did err in ordering specific enforcement of the later oral
2. Zoning and Land Use
A. Notice of Hearing
Glazebrook v. Board of Supervisors, 266 Va. 550, 587 S.E.2d 589 (2003)
The published notice of the public hearing to consider text amendments to a county‟s
zoning ordinance was inadequate where it stated only that the hearing would affect “development
The Board of Supervisors of Spotsylvania scheduled public hearings to amend the
county‟s zoning ordinance. The hearing notice said that the hearing would consider amending a
county code section dealing with “development standards.” That code section dealt with
maximum density, road frontage, open space requirements, minimum lot requirements and other
characteristics. Plaintiff challenged the board‟s action, arguing that the notice of the hearing did
not meet the requirement of Va. Code § 15.2-2204(A) that the notice contain a “descriptive
summary” of the planned action. The trial court sustained the board‟s demurrer.
The Supreme Court reversed. The Court reviewed the trial court‟s legal determination de
novo. A “descriptive summary” is a statement that covers the main points concisely, but without
detailed explanation, in a manner the serves to describe an object for the knowledge and
understanding of others. Applying that definition to the notice in the case, the Court ruled that it
was not a “descriptive summary.” “No citizen could reasonably determine, from the notice,
whether he or she was affected by the proposed amendments except in the most general sense.”
Given the number of issues under the heading of “development standards,” the notice failed to
inform citizens of the universe of possible amendments to the zoning ordinance under
consideration. The zoning ordinances adopted at the hearing were void ab initio.
B. Boards of Zoning Appeals
Cochran v. Fairfax County Bd. of Zoning Appeals, 267 Va. 756, 594
S.E.2d 571 (2004)
A board of zoning appeals has no authority to grant a variance unless the impact of the
local zoning ordinance upon the property in question is so severe as to deprive the property of all
reasonable beneficial uses.
This appeal involved three cases that challenged a BZA‟s grant of a variance. In the first
case, the trial court affirmed the BZA‟s grant of variances to a homeowner who wanted to build a
house within a setback. In the second case, the trial court affirmed the BZA‟s grant of a variance
to homeowners to construct a garage within a setback area. In the third case, the trial court
reversed the BZA‟s decision not to grant a variance to homeowners who wanted to build separate
storage shed on their property. In each of the cases, the proposed project could have been
relocated or redesigned so as to avoid the need for a variance, although the alternatives were
more expensive or not aesthetically pleasing to the homeowners.
The Supreme Court reversed each of three cases. Under Code § 15.2-2309(2), a BZA has
authority to grant a variance only where a strict application of the zoning ordinance would
“effectively prohibit or unreasonably restrict the utilization of the property” or result in a “clearly
demonstrable hardship approaching confiscation.” Interpreting those provisions, the Court held
that the BZA has no authority to grant a variance unless the application of the zoning ordinance
would “interfere with all reasonable beneficial uses of the property, taken as a whole.” In each of
the three cases, the proposed construction could have been reconfigured, or the project
abandoned. Without any variances, each of the properties retained substantial beneficial uses and
C. “Fairly Debatable” Standard
Board of Supervisors v. Robertson, 266 Va. 525, 587 S.E.2d 570 (2003)
The board of supervisors‟ denial of a variance in setback requirements was sufficiently
reasonable to make it “fairly debatable.”
Robertson owned 2.78 acres of land adjacent to the Dulles Airport Access Road in
Fairfax County. The property was zoned R-3, permitting three residences per acre. Fairfax‟s
zoning ordinance requires a 200-foot setback from the access road. Because of the land‟s
configuration, virtually all of Robertson‟s property was located within 200 feet of the access
road. The zoning ordinance contained an exception to the setback requirement if the lot was
recorded prior to the effective date of the ordinance and the enforcement of the setback
requirement would negate the use of the lot in accordance with its zoning. The parties stipulated
that Robertson was entitled to the benefit of the exception and that he could erect one single-
family residence on the property. Robertson wanted to build four residences on the property and
sought a variance, which was denied. Robertson sought a declaratory judgment that the board‟s
denial of his application for a variance was arbitrary, capricious, unreasonable, and an abuse of
discretion. The trial court ruled, sua sponte, that Robertson was not entitled to the statutory
exception and therefore Robertson could not build even one residence on the property. The court
ruled that the application of the setback requirement would prevent any development of the
property and that board‟s denial of the variance was arbitrary, capricious and unreasonable.
The Supreme Court reversed. The board‟s denial of the application was presumptively
reasonable. Legislative action is reasonable if the matter is fairly debatable. An issue is fairly
debatable when the evidence offered in support of the opposing views would lead objective and
reasonable persons to reach different conclusions. The board produced evidence that future noise
levels would exceed the County‟s guidelines for acceptable noise levels in a residential
development. That evidence was sufficient to make the denial of the variance fairly debatable.
The trial court erred in deciding, sua sponte, that Robertson could not develop his property for
even a single residence. That issue was neither pleaded nor claimed by Robertson. “It is firmly
established that no court can base its judgment or decree upon facts not alleged or upon a right
which has not been pleaded or claimed.”
3. Taxation; Constitutional Law
Alderson v. County of Alleghany, 266 Va. 333, 585 S.E.2d. 795 (2003)
The Supreme Court rejected the argument that special legislation adopted by the General
Assembly was unconstitutional. The legislation dealt with the treatment of the personal property
tax assessments and levies on the citizens of the former City of Clifton Forge after it reverted to
town status on July 1, 2001. In short, the legislation validated the assessment by Allegheny
County on property located in the City of Clifton Forge on January 1, 2001 and validated the levy
of county taxes on property located in Clifton Forge for the year 2001. The Supreme Court
concluded that the legislation was not unconstitutional because it was authorized by Article VII,
§ 2 of the Virginia Constitution. That section authorizes the General Assembly to “provide by
special act for the organization, government, and powers of any county, city, town, or regional
government, including such powers of legislation, taxation, and assessment as the General
Assembly may determine.” The special legislation was a permissible remedy for an isolated and
4. Solid Waste Disposal Fees; Constitutional Law
Estes Funeral Home v. Adkins, 266 Va. 297, 586 S.E.2d 162 (2003)
A county‟s ordinance levying fees for solid waste disposal violate the Equal Protection
Clause in that the ordinance‟s classifications do not bear a reasonable relation to a legitimate
Wise County adopted an ordinance that established fees for solid waste disposal that
included a flat fee for residential users and various rates for businesses. The circuit court, after a
hearing, ruled that the ordinance was constitutional.
The Supreme Court reversed. Although a county ordinance is presumed to be valid, this
presumption may be overcome if the ordinance is unreasonable on its face or if extrinsic
evidence clearly establishes the unreasonableness. Equal protection requires that the
classifications in the ordinance be based on “real and not feigned differences, that the distinction
have some relevance to the purpose for which the classification is made, and that the different
treatments not be so disparate, relative to the difference in classification, as to be wholly
arbitrary.” Wise‟s ordinance violated the Equal Protection Clause because the classifications in
the fee schedule bore little relation to the legitimate governmental objectives of levying a fair and
equitable fee structure on all users of the county‟s solid waste disposal facilities, addressing the
increasing amounts of solid waste, and adopting a fee schedule that accurately reflected the costs
of solid waste disposal. The record contained no evidence that would make the fee schedule‟s
classifications fairly debatable.
XI. DOMESTIC RELATIONS
1. Name Change; Child’s Name
Spero v. Heath, 267 Va. 477, 593 S.E.2d 239 (2004)
The trial court abused it discretion in ordering the surname of a child born out of wedlock
changed from the mother‟s surname to the father‟s surname.
Ella Spero was born in 2001. Her parents, Jessica Spero and David Heath, never married
and ended their relationship before Ella was born. Initially, Heath denied paternity until a
paternity test confirmed that he was Ella‟s father. Heath then petitioned the circuit court to
change Ella‟s surname to “Heath.” The trial court concluded, after a contested hearing, that it
was in Ella‟s best interests to have her father‟s surname.
The Supreme Court reversed, vacated and dismissed. The parent petitioning to change
the surname of a minor bears the burden of proving that the name change is in the child‟s best
interest. A name change may be in the best interests of a child if it is shown: 1) that the parent
sharing his or her surname with the minor has abandoned the natural ties ordinarily existing
between parent and child, 2) the parent sharing his or her surname with the child has engaged in
misconduct sufficient to embarrass the minor in the continued use of the parent‟s name, 3) the
minor will suffer substantial detriment by bearing the current surname, or 4) the minor is of
sufficient age and discretion to make an intelligent choice and wants his or her surname changed.
Flowers v. Cain, 218 Va. 234 (1977). A name change is not authorized merely to save minor
inconvenience or embarrassment to the parent. There is no presumption that a child should have
the father‟s surname or that the mother always has the burden of proof for or against a petition
for a name change. In this case, Heath, the petitioner, failed to offer evidence tending to show
any of the criteria required by Flowers. Heath failed to satisfy his burden of proof that the name
change was in Ella‟s best interests. The trial court abused its discretion in ordering the change in
2. Full Faith & Credit; Res Judicata; Collateral Estoppel
Wright v. Eckhardt, 267 Va. 24, 591 S.E.2d 668 (2004)
The doctrines of res judicata or collateral estoppel did not bar the trial court from giving
full faith and credit to an order of the Texas Court of Appeals.
Cecilia Wright and Troy Eckhardt were divorced in Texas in 1993. Wright was awarded
a portion of Eckhardt‟s military pension when he retired. In 1998, Eckhardt retired from active
duty. Wright obtained a clarifying order from the Texas court establishing the formula for
calculating her share of Eckhardt‟s pension. Eckhardt in the meantime moved to Virginia.
Wright obtained a judgment against Eckhardt in the general district court for arrearages under the
Texas order. Eckhardt appealed to circuit court. Prior to the circuit court trial, Eckhardt
obtained a clarifying order from the Texas court that held that Wright was not entitled to pension
payments because Eckhardt had not fully retired. Eckhardt prevailed at the 1999 de novo trial in
circuit court. Wright did not appeal the circuit court judgment in favor of Eckhardt, but she did
appeal in the Texas courts the second clarifying order. The Texas Court of Appeals reversed the
second clarifying order and ruled in 2000 that Wright was entitled to payments under Eckhardt‟s
pension. Wright filed suit in circuit court in Virginia for arrearages. The trial court dismissed
Wright‟s action, holding that it was barred by res judicata.
The Supreme Court reversed. “The doctrine of res judicata precludes parties from
relitigating a cause of action when a valid final judgment has been entered on the matter; a
factual issue actually litigated and essential to a final judgment may not be relitigated in a
subsequent proceeding under the doctrine of collateral estoppel.” The issue of whether Wright
was entitled to payment was never litigated in the Virginia courts. The issue in the 1999 Virginia
litigation was whether full faith and credit should have been given to the 1999 second clarifying
order of the Texas court. The issue in this case was whether full faith and credit should be given
the 2000 judgment of the Texas Court of Appeals. In the absence of an identity of claims or
issues, the defenses of res judicata and collateral estoppel fail
XII. WORKERS’ COMPENSATION
1. Statutory Fellow Employees
Sweep Professional Parking Lot Maintenance, Inc. v. Talley, 267 Va. 210, 591
S.E.2d 79 (2004)
The plaintiff‟s personal injury suit was barred by the exclusivity provisions of the
Workers‟ Compensation Act.
Clean Sweep and Coleman Trucking were both subcontractors of Virginia Paving.
Talley, a Coleman Trucking employee, was injured by one of Clean Sweep‟s trucks after he
made a delivery to the work site. The trial court overruled Clean Sweep‟s plea in bar asserting
the exclusivity of the Workers‟ Compensation Act. The jury returned a verdict in favor of Talley
The Supreme Court reversed. It was not disputed that O‟Connor, the Clean Sweep driver
who injured Talley, was a statutory employee of Virginia Paving. In issue was whether Talley
was a statutory employee of Virginia Paving. The duties of Talley‟s employer, Coleman
Trucking, extended far beyond merely delivering asphalt to the work site and were integral to the
construction process. Coleman Trucking was not a stranger to the work of Virginia Paving.
Talley was, therefore, a statutory employee of Virginia Paving, and Talley and O‟Connor (Clean
Sweep‟s driver) were statutory fellow employees. Talley‟s suit was barred by the exclusivity
provisions of the Workers‟ Compensation Act.
2. Statutory Employer
Jones v. Commonwealth, 267 Va. 53, 591 S.E.2d 72 (2004)
The University of Virginia is a “governmental entity” for the purpose of
determining whether it was a statutory employer of an injured worker under the Workers‟
Waco, Inc., was an independent contractor employed by the University of Virginia
for the purpose of asbestos removal. Jones, a Waco employee, was injured when he was
removing asbestos. The University filed a plea in bar asserting that Jones‟s action was
barred by the exclusivity provisions of the Workers‟ Compensation Act. The University
contended that it is a governmental entity with a statutory mandate to maintain its
buildings and Jones was injured while maintaining a University building. The trial court
sustained the plea in bar.
The Supreme Court affirmed. UVa is a governmental entity. Its powers and
duties are created by statute and are controlled by the General Assembly. The “normal
work test” does not apply to determine the trade, business, or occupation of a
governmental entity. For a governmental entity, “any activity which [it] is authorized or
required to do by law or otherwise, is considered [its] trade, business, or occupation.”
UVa is authorized by law to maintain its buildings. Therefore, the care and maintenance
of its buildings are part of the UVa‟s trade, business or occupation. Jones was involved
in the trade, business of occupation of UVa when he was injured. UVa was his statutory
employer and Jones could not seek recovery in tort for his injuries.
3. Appeals; Contemporaneous Objection Rule
Williams v. Gloucester County Sheriff‟s Dept., 266 Va. 409, 587 S.E.2d 546
The Court of Appeals correctly decided that Williams‟s appeal was barred by the
contemporaneous objection rule. The Workers‟ Compensation Commission denied Williams
benefits for reasons not argued or briefed before the Commission. Williams appealed to the
Court of Appeals, which ruled that the appeal was barred by Rule 5A:18.
The Supreme Court affirmed. The contemporaneous objection rule requires that parties
afford a tribunal the opportunity to correct a perceived error before asserting that alleged error as
a basis for reversal of the tribunal on appeal. Even though the Commission decided the matter on
issues not previously raised, Williams could have filed a motion to reconsider with the
Commission giving it the opportunity to reconsider its ruling. Williams failed to do so, and thus
did not preserve the issue for appeal.
4. Due Process Requirements
Washington v. United Parcel Service, 267 Va. 539, 593 S.E.2d 229 (2004)
The claimant was entitled to a 20% penalty against his employer‟s insurance carrier for its
failure to pay the claimant benefits as provided in an open award.
Washington, a UPS employee, injured his knee on the job. UPS was insured by Liberty
Mutual Fire Insurance Company. The Workers‟ Compensation Commission awarded
Washington $469.91 a week in compensation during the period of his incapacity. Liberty Mutual
unilaterally stopped paying Washington after it learned that he had returned to work at his pre-
injury wages. Washington asked the Commission to order Liberty to pay him “all compensation
due and payable to him, along with a 20% penalty” under Code § 65.2-524. After a hearing, the
deputy commissioner determined that the plaintiff had been returned to full duty within a month
of the Commission‟s award. The deputy ruled that any disability suffered by Washington after
he was returned to work was causally unrelated to the injury for which he received the award.
The deputy found that there were no arrearages under the award. The full Commission affirmed
the deputy‟s decision and the Court of Appeals affirmed the Commission.
The Supreme Court reversed. The causation issue was not properly before the
Commission and should not have been decided given the procedural posture of the case. The
Notice of Hearing made no mention of the causation issue or that the Commission was
considering terminating the outstanding award because of the claimant‟s change in condition.
The carrier did not file an employer‟s application alleging the claimant returned to work at his
pre-injury wage. “This procedural snafu prevented the claimant from preparing an adequate
response on the causation issue and from being prepared to resist termination of the award based
on his change in condition application. He was not afforded the minimal due process to which
he was entitled.” The original award remains valid, and it was error for the Commission not to
have assessed a 20% penalty against the carrier.
Justice Keenan and Hassell dissented. They opined that the majority went far beyond the
assignment of error in sua sponte deciding that the deputy improperly considered the issue of
causation. They would have held that, under the doctrine of imposition, the Commission
properly declined to impose a penalty on the employer.
1. Attorney Discipline
Rice v. Virginia State Bar, 267 Va. 299, 592 S.E.2d 643 (2004)
The evidence supported the Disciplinary Board‟s determination that Rice failed to act
with reasonable diligence and promptness in representing a client.
On February 8, 2001, Thompson, who was then incarcerated in the local jail, retained
Rice to seek a sentence reduction. Rice did not file a motion until March 21, noticing it for a
hearing on April 11. By that time, Thompson had been transferred to the custody of the
Department of Correction and the trial court lost jurisdiction to consider the requested sentence
The Disciplinary Board‟s finding of facts did not support its determination that Rice
violated Rule 8.1(c) by failing to appear at the disciplinary hearing. Rice met with the bar
investigator. Despite two written notices and personal service of a summons to appear, Rice did
not appear at the disciplinary committee on the complaint. The Board found that in failing to
appear, Rice violated Rule 8.1(c). That rule provides that a lawyer shall not “fail to respond to a
lawful demand for information from an admissions or disciplinary authority.” The Court held
that Rule 8.1(c) may be violated by a lawyer‟s failure to appear at a disciplinary hearing. In this
case, however, the Disciplinary Board made no finding that the committee was unable to gather
information from Rice as a result of his failure to appear. Therefore, the Board‟s determination
that Rice violated Rule 8.1(c) is unsubstantiated.
Justices Koontz and Lemons and Senior Justice Compton dissented from the Court‟s
holding that the bar did not prove Rice violated Rule 8.1(c).
2. Virginia Motor Vehicle Warranty Enforcement Act
Chase v. DaimlerChrysler Corp., 266 Va. 544, 587 S.E.2d 521 (2003)
A plaintiff who settles her “Lemon Law” suit against an automobile manufacturer is not
entitled to attorney‟s fees as a “successful party” under Code § 59.1-207.14.
Chase purchased a Chrysler Cirrus in 1999. It had a number of mechanical problems.
Chase brought a suit against Chrysler for breach of warranty, violation of the Virginia Motor
Vehicle Warranty Enforcement Act (the “Lemon Law”), and violation of the federal Magnuson-
Moss Warranty Act. She sought total damages in excess of $40,000. Chase settled her claims
against Chrysler by entering into a repurchase and release agreement. She received $13,242 from
Chrysler. In addition, Chrysler agreed to assume the remaining loan payments on her automobile
loan. The issue of attorney‟s fees and costs was not settled. The trial court entered summary
judgment in favor of Chrysler on the plaintiff‟s claim that she was entitled to an award of
attorney‟s fees and costs under the Lemon Law as the “successful party.”
The Supreme Court affirmed. To be “successful” in a civil action means that the action
terminates in favor of the claimant. In this case, the final order expressly states that final
judgment is awarded to Chrysler. Code § 59.1-207.14 does not suggest that courts should engage
in an evaluation of the relative success of each party in their compromise. “The language of the
statute requires that the civil action itself be resolved in favor of the consumer.” The Supreme
Court rejected Chase‟s argument that its conclusion would discourage settlements: “Lawyers and
litigants will factor this requirement into their settlement negotiations and govern themselves
accordingly. . . . What will most certainly change is the manner in which settlement agreements
are memorialized. A consent order reciting that the consumer was the prevailing party and
reserving the amount of fees and costs for judicial determination [will] sufficiently demonstrate
which party was „successful‟ in the civil action.”
3. Uniform Transfers to Minors Act
Richardson v. AMERESCO Resid. Mtge. Corp., 267 Va. 43, 592 S.E.2d
Mortgagees who make loans to a guardian in her individual capacity are not entitled to
the “safe harbor” provisions of the Uniform Transfers to Minors Act. Mortgagees who have
notice from the land records that the mortgagor is a guardian self-dealing with her ward‟s
property are not bona fide purchasers.
In 1990, Christina Brown, aged one and a Kentucky resident, received a $700,000
settlement for the wrongful death of her father. Her mother, Dana Brown, was appointed her
guardian by the Kentucky court. In 1996, Dana and Christina moved to Virginia. Dana
purchased a house that was titled in her name in her capacity as Christina‟s guardian under the
Kentucky UTMA. In 1997, Dana quitclaimed the house to herself by a recorded deed. She then
obtained a $139,000 loan from AMERESCO, secured by a first deed of trust on the house. In
1997, Dana obtained a loan from CENIT Bank, also secured by a deed of trust on the property.
Dana was later removed as Christina‟s guardian. Her substitute guardian Richardson brought a
suit to quiet title. The trial court ruled that, although the mortgagees were on notice of the
irregularities in the chain of title, they were entitled to the benefit of the “safe harbor” provisions
under the Kentucky UTMA and Virginia‟s UTMA. The trial court further ruled that Christina‟s
transfer of the property to herself was a valid transaction.
The Supreme Court reversed. Dana‟s sale of the property to herself was voidable.
Trustees and all persons acting in a confidential character with respect to property are
disqualified from purchasing the property for themselves. The validity of such a sale “does not
depend on its fairness, but the sale is voidable, and when attacked, must be set aside, although
the price was fair, or the best to be had, and the motive pure.” Such a sale by a fiduciary
constitutes a constructive fraud. Further, the mortgagees were not entitled to the safe harbor
provisions of the UTMA. Kentucky‟s statute, which is substantially similar to Va. Code § 31-52,
provides protections for third parties who “deal with any person . . . purporting to act in the
capacity of a custodian.” Here, the mortgagees did not deal with Dana in her capacity as
Christina‟s guardian, but rather in her individual capacity to lend her money for her personal use.
They were not bona fide purchasers of the property as a matter of law. The recorded chain of
title to the property put the mortgagees on notice that Dana was a fiduciary self-dealing in her
beneficiary‟s property. Had they inquired further, they would have learned of the unauthorized
nature of the transfer. Their interests in the property are defeated by Christina‟s successful attack
on the quitclaim deed. Christina was entitled to the property free and clear of the mortgagee‟s
4. Virginia Freedom of Information Act
Beck v. Shelton, 267 Va. 482, 593 S.E.2d 195 (2004)
E-mails among members of a public body do not constitute a “meeting” for the purposes
of the Virginia Freedom of Information Act (FOIA) where the members are not communicating
Plaintiffs filed a petition for a writ of mandamus and injunction against the mayor and
three city council members. The plaintiffs contended that the defendants “deliberately e-mailed
each other in a knowing, willful and deliberate attempt to hold secret meetings, avoid public
scrutiny . . . [and] discuss City business and decide City issues without the input of all the council
members and the public.” The trial court held that FOIA did not apply to members elect of the
council, that some e-mail communications did constitute a “meeting” under FOIA, and that a
particular gathering of council members and citizens was not a “meeting” FOIA. The trial court
found that the defendants did violate the open meeting provisions of FOIA, but imposed no
penalty in that the violations were unintentional. Both sides appealed.
The Supreme Court affirmed in part and reversed in part. The trial court correctly held
that members-elect of the city council are not members of a public body within the meaning of
FOIA. Therefore, FOIA‟s open meeting requirements were not triggered when the mayor met
with three members-elect of the city council. The trial court erred in holding that e-mails
between the mayor and city councilmen constituted a meeting for the purposes of FOIA. The e-
mails did not involve virtually simultaneous interaction, such as instant messaging or chat rooms.
The e-mails constituted a public record under FOIA, but not a meeting. The trial court correctly
held that it was not a “meeting” under FOIA when three city council members attended a
gathering of citizens concerned about traffic at a busy intersection.