Chapter 1. General Provisions as to Civil Cases.

§ 8.01-1. How proceedings may be in actions pending when title takes effect.

Except as may be otherwise provided in § 8.01-256 of Chapter 4 (§ 8.01-228 et seq.) (Limitations of Actions), all provisions of this title shall apply to causes of action which arose prior to the effective date of any such provisions; provided, however, that the applicable law in effect on the day before the effective date of the particular provisions shall apply if in the opinion of the court any particular provision (i) may materially change the substantive rights of a party (as distinguished from the procedural aspects of the remedy) or (ii) may cause the miscarriage of justice.

History. Code 1950, § 8-2; 1977, c. 617.

REVISERS’ NOTE

This section provides some latitude to the court in applying the provisions of Title 8.01 to causes of action arising prior to October 1, 1977, the effective date of the title. However, Title 8 statutes of limitations continue to apply to such causes of action.

Cross references.

For text of rules of court adopted by the Virginia Supreme Court, see Volume 11.

Editor’s note.

The General Assembly at its regular session of 1972 directed the Virginia Code Commission, by House Joint Resolution No. 31, to make a study of Title 8 of the Code of Virginia and to report its findings in the form of a recodification of that title. In November of 1976, the Commission sent to the Governor and General Assembly its report containing a proposed revision of Title 8, along with revisers’ notes and other explanatory matter, which was published as House Document No. 14 of the 1977 session. The Commission’s draft of the revision of Title 8, as amended by the General Assembly, became c. 617 of the Acts of 1977. Effective October 1, 1977, it repealed Title 8 of the Code and enacted in lieu thereof a new Title 8.01.

In addition to its revision by c. 617, former Title 8 was also amended by certain other acts passed at the 1977 session, which acts took effect July 1, 1977, or earlier. As required by § 9-77.11 (now § 30-152) and also by Acts 1977, c. 617, cl. 4, the Code Commission incorporated most of these amendments into new Title 8.01. One such 1977 act, Acts 1977, c. 224, amended § 8-313, dealing with the circumstances under which a deposition may be read in a case at law. Section 8-313, along with other sections relating to depositions, was not carried over into the new Title 8.01, since it was contemplated that the entire subject would be covered by the revision of Part Four of the Rules of the Supreme Court. Therefore, the amendment to § 8-313 was not codified by the Code Commission in new Title 8.01; however, the substance of the amendment was incorporated by the Supreme Court in revised Rule 4:7. Another 1977 act, Acts 1977, c. 621, added a new § 8.01-66.1 , which, although enacted as a part of new Title 8.01, contained no effective date provision, and so took effect July 1, 1977.

A companion bill to c. 617, making conforming changes in various sections of titles of the Code other than Title 8, and transferring certain sections of Title 8 to other titles, was enacted as Acts 1977, c. 624.

The revisers’ notes from the Code Commission report, House Document No. 14 of the 1977 session of the General Assembly, have been reviewed, in some instances condensed, and re-edited by the original consultants to the Code Commission in the preparation of Title 8.01, and appear under the appropriate sections herein. However, the revisers’ notes have not been edited to reflect subsequent amendments to the sections under which they appear or any other provisions.

Law Review.

For note highlighting major changes in Virginia civil procedure under Title 8.01, see 12 U. Rich. L. Rev. 245 (1977).

For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 26 U. Rich. L. Rev. 679 (1992).

For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

Michie’s Jurisprudence.

For related discussion, see 8A M.J. Executors and Administrators, §§ 12.1, 12.2.

CASE NOTES

“Substantive” rights, as well as “vested” rights, are included within those interests protected from retroactive application of statutes. Shiflet v. Eller, 228 Va. 115 , 319 S.E.2d 750, 1984 Va. LEXIS 180 (1984).

Retroactivity. —

The code provisions in this title apply retroactively unless they affect substantive rights. Gaynor v. OG/GYN Specialists, Ltd., 51 F. Supp. 2d 718, 1999 U.S. Dist. LEXIS 8382 (W.D. Va. 1999).

In an action in which a patient alleged that she suffered injuries as a result of the failure of batteries in a surgically implanted pulse generator, there was a possibility that the patient’s claim against a hospital for breach of the implied warranty of merchantability was not covered by the Virginia Medical Malpractice Act because the patient’s claim accrued before § 8.01-581.1 was amended to include breach of contract claims. Sanders v. Medtronic, Inc., No. 4:06cv57, 2006 U.S. Dist. LEXIS 45516 (E.D. Va. June 26, 2006).

§ 8.01-1.1. References to former sections, articles and chapters of Title 8 and other titles.

Whenever in this title any of the conditions, requirements, provisions or contents of any section, article or chapter of Title 8 or any other title of this Code as such titles existed prior to October 2, 1977, are transferred in the same or in modified form to a new section, article or chapter of this title or any other title of this Code and whenever any such former section, article or chapter is given a new number in this or any other title, all references to any such former section, article or chapter of Title 8 or such other title appearing elsewhere in this Code than in this title shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions or contents or portions thereof.

History. 1978, c. 422.

§ 8.01-2. General definitions for this title.

As used in this title, unless the context otherwise requires, the term:

  1. “Action” and “suit” may be used interchangeably and shall include all civil proceedings whether upon claims at law, in equity, or statutory in nature and whether in circuit courts or district courts;
  2. “Decree” and “judgment” may be used interchangeably and shall include orders or awards;
  3. “Fiduciary” shall include any one or more of the following:
    1. guardian,
    2. committee,
    3. trustee,
    4. executor,
    5. administrator, and administrator with the will annexed,
    6. curator of the will of any decedent, or
    7. conservator;
  4. “Rendition of a judgment” means the time at which the judgment is signed and dated;
  5. “Person” shall include individuals, a trust, an estate, a partnership, an association, an order, a corporation, or any other legal or commercial entity;
  6. “Person under a disability” shall include:
  7. “Sheriff” shall include deputy sheriffs and such other persons designated in § 15.2-1603 ;
  8. “Summons” and “subpoena” may be used interchangeably and shall include a subpoena duces tecum for the production of documents and tangible things;
  9. “Court of equity,” “law and equity court,” “law and chancery court,” “chancery court,” “corporation court,” “the chancery side,” “court exercising powers in chancery,” “court with equitable jurisdiction,” and “receivership court” shall mean the circuit court when entertaining equitable claims;
  10. A “motion for judgment,” “bill,” “bill of complaint,” or “bill in equity” shall mean a complaint in a civil action, as provided in the Rules of Supreme Court of Virginia;
  11. “Equity practice,” “equity procedure,” “chancery practice,” and “chancery procedure” shall mean practice and procedure in a civil action as prescribed by this Code and the Rules of Supreme Court of Virginia.

a. a person convicted of a felony during the period he is confined;

b. an infant;

c. an incapacitated person as defined in § 64.2-2000 ;

d. an incapacitated ex-service person under § 64.2-2016 ; or

e. any other person who, upon motion to the court by any party to an action or suit or by any person in interest, is determined to be (i) incapable of taking proper care of his person, or (ii) incapable of properly handling and managing his estate, or (iii) otherwise unable to defend his property or legal rights either because of age or temporary or permanent impairment, whether physical, mental, or both. Such impairment may also include substance abuse as defined in § 37.2-100 ;

History. 1977, c. 617; 1988, c. 37; 1997, c. 921; 2005, cc. 681, 716.

REVISERS’ NOTE

This provision defines several terms appearing throughout Title 8.01. Some of these are based on definitions utilized for specific provisions in Title 8; e.g., “person”—see former § 8-81.1. Others, such as a “person under a disability,” are specially created generic terms. Some terms have definitions for a particular chapter; e.g., see § 8.01-581.1 .

Cross references.

As to Uniform Prudent Investor Act, see § 64.2-780 et seq. As to liability of fiduciary for actions of cofiduciary, see § 64.2-1416 .

Editor’s note.

At the direction of the Virginia Code Commission, the references to “37.2-1000” and “37.2-1016” were changed to “64.2-2000” and “64.2-2016” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

The 2005 amendments.

The 2005 amendment by c. 681, effective January 1, 2006, inserted “upon claims” in subdivision 1; and added subdivisions 9 through 11.

The 2005 amendment by c. 716, effective October 1, 2005, in subdivision 6, deleted former subdivision c which read: “a drug addict or an alcoholic as defined in § 37.1-1 ,” redesignated former subdivisions d through f as present subdivisions c through e, substituted “37.2-1000” for “37.1-134.6” in subdivision c, “37.2-1016” for “37.1-134.20” in subdivision d; and added the last sentence in subdivision e.

Law Review.

For comment on rights of the convicted felon on parole, see 13 U. Rich. L. Rev. 367 (1979).

For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).

For essay “Bifurcation of Civil Trials,” see 45 U. Rich. L. Rev. 1 (2010).

Research References.

Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 12 Grant of Administration. § 12.04 Administrators. Cox.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Accounts and Accounting, § 10.

CASE NOTES

An “action” and a “cause of action” are quite different: “action” is defined by this section, and “cause of action” is defined as a set of operative facts which, under the substantive law, may give rise to a right of action. Because of that difference, there are no express terms in the nonsuit statute, § 8.01-380 , making it specifically applicable to condemnation proceedings. Trout v. Commonwealth Transp. Comm'r, 241 Va. 69 , 400 S.E.2d 172, 7 Va. Law Rep. 1305, 1991 Va. LEXIS 1 (1991).

“Action.” —

Car purchaser and car manufacturer entered into a settlement agreement due to the purchaser’s car having had numerous mechanical difficulties, which settlement resolved all issues except as to attorney’s fees and costs, and thereafter, the trial court entered judgment in favor of the manufacturer, denying the purchaser’s claim for attorney’s fees and costs as the “successful party” in the action pursuant to § 59.1-207.14; such a denial was proper, as the action, as that term is defined in subdivision 1 of § 8.01-2 , did not end in favor of the consumer, and the fact that she maintained that she achieved the remedies that she sought did not change the conclusion that in the court action, she was not the “successful party” because the order terminating the action was in favor of the manufacturer. Chase v. DaimlerChrysler Corp., 266 Va. 544 , 587 S.E.2d 521, 2003 Va. LEXIS 116 (2003).

Insured asserted three new rights of action, two for breach of contract, and one for declaratory relief, that all arose out of the same set of operative facts as the umpire proceeding, and given the broad scope of an “action” as defined by Virginia law, which included all civil proceedings whether upon claims at law, in equity, or statutory in nature, the umpire proceeding was an “action” that was nonsuited. Thus, pursuant to subdivision E 3 of § 8.01-229 , the act of nonsuiting that “action,” tolled the two year statute of limitations under § 38.2-2105 for all rights of action arising from that cause of action, including the insured’s present right of action for breach of contract and declaratory relief; liberal construction of the tolling statutes to include an umpire proceeding as an action the nonsuit of which tolled her right to file the instant action for damages, was therefore appropriate. Vaughan v. First Liberty Ins. Corp., No. 3:09cv364, 2009 U.S. Dist. LEXIS 108045 (E.D. Va. Nov. 13, 2009).

The statutory definition of fiduciary is not an exclusive one. Rather, it simply specifies that certain kinds of fiduciaries are included in the term. Moreover, there is no indication in the statute or in Virginia decisional law that the General Assembly intended this section to supplant the well-settled common law pursuant to which an accounting is available to redress a breach of the fiduciary responsibility inherent in an agency relationship or in the special relationship shown to have existed between husband and wife in the instant case. McClung v. Smith, 870 F. Supp. 1384, 1994 U.S. Dist. LEXIS 18453 (E.D. Va. 1994), aff'd in part, 89 F.3d 829, 1996 U.S. App. LEXIS 34515 (4th Cir. 1996).

Son as fiduciary to father’s estate. —

A son clearly stands in a fiduciary relationship to his father’s estate when he is appointed as his father’s committee. Aetna Ins. Co. v. Byrd, 15 Bankr. 154, 1981 Bankr. LEXIS 2666 (Bankr. E.D. Va. 1981).

Section not applicable to criminal trial. —

In trial for fraudulently obtaining an advance payment for construction work to be performed in the future, in violation of § 18.2-200.1 , the defendant’s contention that he was a “person under a disability” as defined by subdivision 6 a of § 8.01-2 , and as such, was entitled to an appointment of a guardian ad litem pursuant to § 8.01-9 , or a committee, pursuant to § 53.1-223, was without merit, as defendant introduced no evidence to show that he was in jail on a felony charge, and furthermore, these sections apply only to civil proceedings. Holsapple v. Commonwealth, 38 Va. App. 480, 566 S.E.2d 210, 2002 Va. App. LEXIS 376 (2002), aff'd, 39 Va. App. 522, 574 S.E.2d 756, 2003 Va. App. LEXIS 76 (2003).

Trial court properly convicted defendant of construction fraud when the victim sent notice requesting return of funds for construction not completed to defendant in prison; defendant could not show imprisonment was for a felony and could not be a “person under a disability” in any event, since the definition in this section is for civil proceedings only. Holsapple v. Commonwealth, 39 Va. App. 522, 574 S.E.2d 756, 2003 Va. App. LEXIS 76 , aff'd, 266 Va. 593 , 587 S.E.2d 561, 2003 Va. LEXIS 96 (2003).

Judgment against incarcerated person only voidable. —

Where defendant’s disability, incarceration for a felony, arose under § 8.01-2 and defendant’s status as an incarcerated felon was a material fact clearly known by a court that adjudicated him a habitual offender, defendant was not entitled to have a guardian ad litem appointed pursuant to subsection A of § 8.01-9 and could not collaterally attack the adjudication in a second court. Lowe v. Commonwealth, 2003 Va. App. LEXIS 6 (Va. Ct. App. Jan. 14, 2003).

Provisions not concerned with the capacity of a party. —

Guardian ad litem provisions of Virginia law did not require dismissal of defendants, who were served with a summons and a copy of a civil complaint after their convictions but before they began serving their sentences, because the provisions were not concerned with the capacity of a party, but only with the protection of a person under a disability when sued. Particularly since the case was brought under federal-question subject matter jurisdiction, the guardian ad litem provisions of Virginia law were not binding on the court. Buchanan County v. Blankenship, 406 F. Supp. 2d 642, 2005 U.S. Dist. LEXIS 35012 (W.D. Va. 2005).

Absent showing of actual incapacity, judgment against alcoholic only voidable. —

Where defendant contended that at the time of his habitual offender adjudication he was an alcoholic and a person under disability, the court’s failure to appoint a guardian ad litem to represent him did not render the adjudication void and subject to collateral attack. Absent a showing of actual incapacity, a judgment against an alcoholic is voidable only, not subject to collateral attack. The record supported the trial court’s determination that, at the time of his habitual offender adjudication, defendant’s condition did not require the appointment of a guardian ad litem. Eagleston v. Commonwealth, 18 Va. App. 469, 445 S.E.2d 161, 10 Va. Law Rep. 1559, 1994 Va. App. LEXIS 363 (1994).

“Rendition of judgment.” —

Debtor’s former spouse was considered an insider when a trustee sought to set aside a transfer under 11 U.S.C.S. § 547 because at the time of the transfer of the property the spouse and the debtor were not legally divorced. The final divorce judgment had not been signed and entered by the court as required by § 8.01-2 , and Va. Sup. Ct. R. 1:1. Prunty v. Terry, 408 Bankr. 79, 2009 U.S. Dist. LEXIS 45623 (E.D. Va. 2009), aff'd, 388 Fed. Appx. 299, 2010 U.S. App. LEXIS 14613 (4th Cir. 2010).

Motion to withdraw as counsel of inmate denied. —

In a civil action for securities fraud against an inmate, the district court denied counsels’ motions to withdraw because they failed to make the requisite showing under Fed. R. Civ. P. 17(b) and §§ 8.01-9 and 53.1-223 since the inmate did not waive his right to assistance and mere nonpayment of fees was insufficient to justify the withdrawals. United States SEC v. Woodard, No. 2:13cv16, 2014 U.S. Dist. LEXIS 35417 (E.D. Va. Feb. 19, 2014).

CIRCUIT COURT OPINIONS

“Disability” relates to inmate. —

Inmate’s claim, which arose under the Virginia Tort Claims Act, was barred by the limitations period of § 8.01-195.7 because the inmate had filed his motion for judgment approximately 21 months after his notice of claim; while the inmate was under a “disability” during his incarceration pursuant to subdivision 6 a of § 8.01-2 , he was not “incapacitated” under subdivision A 1 of § 8.01-229 , and accordingly, the time period was not tolled. Hankins v. Commonwealth, 63 Va. Cir. 211, 2003 Va. Cir. LEXIS 168 (Lynchburg Oct. 6, 2003).

Breach of fiduciary duty. —

Demurrer as to Count IV alleging breach of a fiduciary duty was overruled as the facts alleged a cause of action sufficient to submit to a trier of fact on the issue of whether a fiduciary duty existed and if it did whether it was breached by the acts or omissions of the accounting firm because the first co-trustee, as an agent of the accounting firm, could have used the trust and confidence in which the firm was held by the second co-trustee to further the first co-trustee’s fraudulent scheme through his acts as its agent; and the accounting firm would have owed a fiduciary duty not just to properly account, but to promptly advise the second co-trustee of any matter detrimental to the trust. Lawson v. Dehnert, Clarke & Co., P.C., 107 Va. Cir. 450, 2007 Va. Cir. LEXIS 3096 (Northumberland County Nov. 28, 2007).

OPINIONS OF THE ATTORNEY GENERAL

Petition by unemancipated minors for protective orders. —

A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, (01/21/11).

Demurrer. —

A demurrer can be filed in both general district courts and circuit courts to challenge the legal sufficiency of a cause of action. See opinion of Attorney General to The Honorable Scott A. Surovell, Member, House of Delegates, No. 14-078, 2015 Va. AG LEXIS 7 (2/4/15).

§ 8.01-3. Supreme Court may prescribe rules; effective date and availability; indexed, and annotated; effect of subsequent enactments of General Assembly.

  1. The Supreme Court, subject to §§ 17.1-503 and 16.1-69.32 , may, from time to time, prescribe the forms of writs and make general regulations for the practice in all courts of the Commonwealth; and may prepare a system of rules of practice and a system of pleading and the forms of process and may prepare rules of evidence to be used in all such courts. This section shall be liberally construed so as to eliminate unnecessary delays and expenses.
  2. The Supreme Court, subject to § 30-399, shall enact rules and procedures as may be necessary for implementing the requirements of Article II, Section 6-A of the Constitution of Virginia, empowering the Supreme Court to establish congressional or state legislative districts as provided for in that section.
  3. New rules and amendments to rules shall not become effective until 60 days from adoption by the Supreme Court, and shall be made available to all courts, members of the bar, and the public.
  4. The Virginia Code Commission shall publish and cause to be properly indexed and annotated the rules adopted by the Supreme Court, and all amendments thereof by the Court, and all changes made therein pursuant to subsection E.
  5. The General Assembly may, from time to time, by the enactment of a general law, modify or annul any rules adopted or amended pursuant to this section. In the case of any variance between a rule and an enactment of the General Assembly such variance shall be construed so as to give effect to such enactment.
  6. Any amendment or addition to the rules of evidence shall be adopted by the Supreme Court on or before November 15 of any year and shall become effective on July 1 of the following year unless the General Assembly modifies or annuls any such amendment or addition by enactment of a general law. Notwithstanding the foregoing, the Supreme Court, at any time, may amend the rules to conform with any enactment of the General Assembly and correct unmistakable printer’s errors, misspellings, unmistakable errors to statutory cross-references, and other unmistakable errors in the rules of evidence.
  7. When any rule contained in the rules of evidence is derived from one or more sections of the Code of Virginia, the Supreme Court shall include a citation to such section or sections in the title of the rule.

History. Code 1950, §§ 8-1 , 8-1 .1, 8-1.2, 8-86.1; 1950, p. 3; 1952, c. 234; 1954, c. 333; 1971, Ex. Sess., c. 2; 1972, c. 856; 1977, c. 617; 1979, c. 658; 1984, c. 524; 2003, c. 280; 2012, cc. 688, 708; 2020, Sp. Sess. I, c. 56.

REVISERS’ NOTE

Section 8.01-3 combines former law on rules promulgated by the Supreme Court.

Subsection A combines former §§ 8-1 , 8-1 .1, 8-1.2, and the first paragraph of former § 8-86.1 pertaining to the rule-making authority of the Supreme Court. Sections 17-116.4 and 16.1-69.32 impose on the Supreme Court the duty to consult with the chairmen of the House and Senate Courts of Justice Committees and with the executive committees of the judicial conferences of Virginia for the circuit and district courts.

Since Title 8 deals with civil procedure, the authority in former § 8-1.1 regarding criminal practice was deleted.

The second paragraph of former § 8-86.1 is changed in subsection B and reference is made to new § 2.1-543.1 which requires printing and distribution of rules as public documents. Clerks of courts are directed to maintain the rules in a special book. New rules and amendments are not effective until sixty days after adoption; however, to permit advance familiarization they are to be distributed upon adoption.

Former § 8-1.2 is amplified in subsection C to require that the Virginia Code Commission publish, index and annotate the Rules of the Supreme Court and all amendments thereto. Subsection D restates the power granted the General Assembly by Va. Const., Art. VI, § 5.

Cross references.

For text of rules of court adopted by the Virginia Supreme Court, see Volume 11.

Editor’s note.

Acts 2012, cc. 688 and 708, cl. 3 provides: “That the Supreme Court of Virginia has prepared and adopted Rules of Evidence in accordance with its rulemaking authority under § 8.01-3 of the Code of Virginia.”

Acts 2012, cc. 688 and 708, cl. 4 provides: “That the Rules of Evidence prepared and adopted by the Supreme Court of Virginia have been submitted to and approved by the Virginia Code Commission as required by subsection E of § 8.01-3 of the Code of Virginia and by § 30-153 of the Code of Virginia.”

Acts 2012, cc. 688 and 708, cl. 5 provides: “That, notwithstanding the provisions of subsection E of § 8.01-3 of the Code of Virginia and § 30-153 of the Code of Virginia, Rule 2:102 of the Rules of Evidence shall contain the following language, approved by the Supreme Court of Virginia, as its third sentence: ‘Common law case authority, whether decided before or after the effective date of the Rules of Evidence, may be argued to the courts and considered in interpreting and applying the Rules of Evidence.’ ”

Acts 2012, cc. 688 and 708, cl. 7 provides: “That the provisions of this act shall become effective on July 1, 2012, and that the Rules of Evidence shall become effective on July 1, 2012.”

Acts 2012, cc. 688 and 708, cl. 8 provides: “That the Rules of Evidence shall be applicable in all proceedings held on or after the effective date of this act in any civil action or criminal case pending on that date or commenced thereafter.”

Acts 2012, cc. 688 and 708, cl. 9 provides: “That in the event of any conflict between any enactment of the General Assembly and any rule contained in the Rules of Evidence, the enactment of the General Assembly shall control.”

Acts 2020, Sp. Sess. I, c. 56, cl. 10 provides: “That an emergency exists and the provisions of Enactment 9 of this act shall become effective on November 15, 2020, contingent upon the passage of an amendment to the Constitution of Virginia on the Tuesday after the first Monday in November 2020, establishing the Virginia Redistricting Commission by amending Section 6 of Article II and adding in Article II a new section numbered 6-A. If such amendment is not approved by the voters, the provisions of this act shall not become effective.” The amendment passed and became effective November 15, 2020.

The 2003 amendments.

The 2003 amendment by c. 280, in subsection B, substituted “availability” for “printing and distribution; maintenance by clerks of courts,” “60” for “sixty,” and “made available to all courts, members of the bar, and the public” for “printed and distributed as public documents pursuant to § 17.1-318 . Such rules and amendments shall be maintained in a special book kept for such purpose by the clerks of court to which they are distributed.”

The 2012 amendments.

The 2012 amendment by cc. 688 and 708 are identical, and deleted the subsection headings in subsections A through D; rewrote subsection E, which formerly read: “The rules of evidence prepared by the Supreme Court shall be submitted to the Virginia Code Commission for approval as provided in § 30-153 and shall be codified upon enactment by the General Assembly”; and added subsection F.

The 2020 Sp. Sess. I amendments.

The 2020 amendment by Sp. Sess. I, c. 56, cl. 9, effective November 15, 2020, inserted subsection B and redesignated the remaining subsections accordingly; and substituted “subsection E” for “subsection D” in subsection D.

Law Review.

For survey of the Virginia law on pleading and practice for the year 1961-1962, see 48 Va. L. Rev. 1523. For survey of Virginia law on evidence for the year 1969-1970, see 56 Va. L. Rev. 1325 (1970).

For article on the abolition of the forms of action in Virginia, see 17 U. Rich. L. Rev. 273 (1983).

For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

For essay “Bifurcation of Civil Trials,” see 45 U. Rich. L. Rev. 1 (2010).

For article, “Making the Case to Avoid Entering the eBay Marketplace: A Recommended Analytical Framework for Evaluating Requests for Permanent Injunctions in Virginia,” see 32 Regent U.L. Rev. 1 (2019).

Michie’s Jurisprudence.

For related discussion, see 5A M.J. Counties, § 45.

CASE NOTES

Former version of this section confirmed an inherent power of the courts. Smith v. Commonwealth, 161 Va. 1112 , 172 S.E. 286 , 1934 Va. LEXIS 323 (1934) (decided under prior law).

§ 8.01-4. District courts and circuit courts may prescribe certain rules.

The district courts and circuit courts may, from time to time, prescribe rules for their respective districts and circuits. Such rules shall be limited to those rules necessary to promote proper order and decorum and the efficient and safe use of courthouse facilities and clerks’ offices. No rule of any such court shall be prescribed or enforced which is inconsistent with this statute or any other statutory provision, or the Rules of Supreme Court or contrary to the decided cases, or which has the effect of abridging substantive rights of persons before such court. Any rule of court which violates the provisions of this section shall be invalid.

The courts may prescribe certain docket control procedures which shall not abridge the substantive rights of the parties nor deprive any party the opportunity to present its position as to the merits of a case solely due to the unfamiliarity of counsel of record with any such docket control procedures. No civil matter shall be dismissed with prejudice by any district or circuit court for failure to comply with any rule created under this section.

History. Code 1950, § 8-1.3; 1970, c. 366; 1977, c. 617; 1999, c. 839; 2000, c. 803; 2014, c. 348.

REVISERS’ NOTE

Section 8.01-4 comports former § 8-1.3 with the 1973 district and circuit court reorganization acts. The phrase in former § 8-1.3 “the orderly management of court dockets” was omitted because it might lead to promulgation of local rules which would create lack of uniformity in procedure.

Former § 8-4.3 (Order for medical examination. . .) has been deleted since in substance it has been incorporated in Rule 4:10.

The 1999 amendment, effective July 1, 2000, rewrote this section, which formerly read: “The district courts and circuit courts may, from time to time, prescribe for their respective districts and circuits such rules as may be reasonably appropriate to promote proper order and decorum, and the convenient and efficient use of courthouses and clerks’ offices. No rule of any such court shall be prescribed or enforced which is inconsistent with any statutory provision, or the Rules of the Supreme Court, or contrary to the decided cases, or which has the effect of abridging substantive rights of persons before such Court.”

The 2000 amendments.

The 2000 amendment by c. 803, in the first paragraph, substituted “limited to those rules necessary” for “strictly limited to only those rules absolutely necessary” in the second sentence and inserted “or the Rules of Supreme Court” in the third sentence; and added the second paragraph.

The 2014 amendments.

The 2014 amendment by c. 348 in the second paragraph added the last sentence.

Law Review.

For survey of Virginia law on practice and pleading for the year 1969-1970, see 56 Va. L. Rev. 1500 (1970).

For survey of Virginia law on practice and pleading for the year 1970-1971, see 57 Va. L. Rev. 1561 (1971).

For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

Michie’s Jurisprudence.

For related discussion, see 5A M.J. Evidence, §§ 3, 13.

CASE NOTES

Rule may not add to statutes regulating practice of law by judges. —

The General Assembly expressly limited its grant of rule-making power by excluding rules “inconsistent with any statutory provision.” The General Assembly has seen fit to adopt statutes regulating the practice of law by judges of courts not of record. If rule adopted by judge adds to these regulations, the rule does not fall within his statutory rule-making power. Davis v. Sexton, 211 Va. 410 , 177 S.E.2d 524, 1970 Va. LEXIS 262 (1970) (decided under prior law).

Custom not sufficient evidence. —

Trial court did not err, in the creditor’s promissory note action against the debtor, in denying the creditor’s post-verdict motion for attorney fees despite the fact that a promissory note provision would permit the creditor to recover attorney fees; the debtor had a state constitutional and statutory right to have the issue of awarding attorney fees submitted to the jury, the jury considered the issue, and the jury returned a verdict with its monetary award, and, thus, the creditor was not entitled to claim that a custom existed that the issue of attorney fees was decided in a post-verdict motion, especially since he did not offer evidence to support that claim. Lee v. Mulford, 269 Va. 562 , 611 S.E.2d 349, 2005 Va. LEXIS 40 (2005).

The practice of allowing any circuit judge to handle any probation violation does not violate § 17.1-503 as it pertains to this section. Gurley v. Commonwealth, 34 Va. App. 166, 538 S.E.2d 361, 2000 Va. App. LEXIS 836 (2000).

Circuit court rule on homestead exemptions. —

Where Chapter 7 debtors timely delivered properly executed homestead deeds with fees paid to the county setting the property apart as exempt pursuant to §§ 34-6 and 34-17 , but the debtors did not comply with a local county rule until the time period under § 34-17 had expired, the county rule did not render the claimed exemption void because enforcement of the local rule would have been inconsistent with the statutory provisions for claiming exemptions under Title 34 of the Virginia Code and would also have abridged the substantive rights of the debtors. In re Alley, 354 Bankr. 783, 2006 Bankr. LEXIS 2976 (Bankr. W.D. Va. 2006).

Violation of scheduling order. —

Trial court did not err in finding that the wife violated the scheduling order because her sworn answer regarding the value of the five excluded properties was that the fair market values were unknown, and had to be determined by appraisal; her unknown answer and representation that the values would be determined by appraisal, which the husband fairly relied upon, were not formally updated until after the trial began; and, by the time the husband was aware of her position on the values of the excluded properties, it was too late for him to review and act on that information. Moore v. Moore, 2020 Va. App. LEXIS 260 (Va. Ct. App. Oct. 27, 2020).

CIRCUIT COURT OPINIONS

Discretion in controlling court’s docket. —

Court continued the wife’s jury trial pending resolution of the husband’s appeals in two separate case as the husband’s notice of appeal, as it pertained to the case in which the wife’s jury trial was pending, was effectively interlocutory in nature, and had the husband properly effectuated an interlocutory appeal, the court would certainly be permitted to enter an order staying the proceedings; thus, under this statute, the court could stay the matter pending the outcome of the appeal in the sound exercise of its discretion in controlling its docket. Reese v. Priority Imps. Battlefield, Inc., 97 Va. Cir. 427, 2015 Va. Cir. LEXIS 263 (Chesapeake Sept. 17, 2015).

OPINIONS OF THE ATTORNEY GENERAL

Judge’s authority may not be delegated. —

While the chief judge and, collectively, the judges of a judicial circuit, do possess legal authority to establish rules regarding courthouse security, such power may not be delegated to a circuit court administrator. The chief judge and, collectively, the circuit judges, possess the legal authority to establish a general rule that cellular telephones are permitted in the courthouse. Nonetheless, the sheriff possesses the legal authority to take action in any specific instance in which a cellular telephone causes a disturbance, or otherwise endangers public safety within the courthouse. See opinion of Attorney General to the Honorable William O. Watson, Sheriff, City of Portsmouth, 12-065, 2013 Va. AG LEXIS 48 (7/12/13).

Courthouse security. —

While judges and sheriffs should work together to resolve any issues or concerns about courthouse security, judges retain rule-making authority over courthouse security, and the sheriff is responsible for enforcing the rules and responding to any security threats or disturbances. See opinion of Attorney General to The Honorable Paul W. Higgs, Sheriff, City of Fredericksburg, 13-096, 2013 Va. AG LEXIS 93 (12/3/3).

§ 8.01-4.1. How jurisdiction determined when proceeding is on penal bond.

When a proceeding before a court is on a penal bond, with condition for the payment of money, the jurisdiction shall be determined as if the undertaking to pay such money had been without a penalty. And when jurisdiction depends on the amount of a judgment, if it be on such a bond, the jurisdiction shall be determined by the sum, payment whereof will discharge the judgment.

History. Code 1950, § 8-3; 1977, c. 617.

CASE NOTES

The claim that a bond sued on does not constitute a contract, but simply provides for a penalty, is unavailing to oust a court of equity of jurisdiction. Kabler v. Spencer, 114 Va. 589 , 77 S.E. 504 , 1913 Va. LEXIS 120 (1913) (decided under prior law).

§ 8.01-4.2. Who may execute bond for obtaining writ or order.

A bond for obtaining any writ or order may be executed by any person with sufficient surety, though neither be a party to the case.

History. Code 1950, § 8-4; 1977, c. 617.

Cross references.

As to the giving of bond under Chapter 20 (§ 8.01-533 et seq.) of this title, see § 8.01-556 .

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Attachment and Garnishment, § 66.

§ 8.01-4.3. Unsworn declarations under penalty of perjury; penalty.

If a matter in any judicial proceeding or administrative hearing is required or permitted to be established by a sworn written declaration, verification, certificate, statement, oath, or affidavit, such matter may, with like force and effect, be evidenced, by the unsworn written declaration, certificate, verification, or statement, which is subscribed by the maker as true under penalty of perjury, and dated, in substantially the following form:

“I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct.”

This section shall not apply to a deposition, an oath of office, or an oath required to be taken before a specified official other than a notary public.

History. 2005, c. 423.

Cross references.

As to business records as evidence, see § 8.01-390.3 .

Law Review.

For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

Chapter 2. Parties.

Article 1. General Provisions.

§ 8.01-5. Effect of nonjoinder or misjoinder; limitation on joinder of insurance company.

  1. No action or suit shall abate or be defeated by the nonjoinder or misjoinder of parties, plaintiff or defendant, but whenever such nonjoinder or misjoinder shall be made to appear by affidavit or otherwise, new parties may be added and parties misjoined may be dropped by order of the court at any time as the ends of justice may require.
  2. Nothing in this section shall be construed to permit the joinder of any insurance company on account of the issuance to any party to a cause of any policy or contract of liability insurance, or on account of the issuance by any such company of any policy or contract of liability insurance for the benefit of or that will inure to the benefit of any party to any cause.

History. Code 1950, § 8-96; 1954, c. 333; 1977, c. 617.

REVISERS’ NOTE

Section 8.01-5 carries forward the policy of former § 8-96 by providing that parties may be added to or dropped from an action without prejudice until all parties necessary for the just disposition of the case are before the court. See also Rules 2:15, 3:9A and 3:14 which provide for the addition of parties to an action.

Omitted from § 8.01-5 are those parts of former § 8-96 which exempt a party from being added if the action could not be maintained against him for specified reasons — i.e. a new party who was neither a resident of the Commonwealth nor subject to service of process therein, or where the action was barred by the statute of limitation or under the provisions of Chapter 1 of Title 11 (Contracts — General Provisions). The substance of these provisions is better implemented under Rule 3:9A.

Cross references.

For rules of the Virginia Supreme Court generally, see Volume 11.

For rule of court permitting a defendant to plead a cross-claim against one or more other defendants, see Rule 3:10.

For rule of court as to joinder of parties, see Rule 3:12.

For rule of court as to third-party practice, see Rule 3:13.

For rules of court as to intervention and substitution of parties, see Rules 3:14, 3:17.

As to joining joint obligors upon contract, see § 8.01-30 .

Law Review.

For annual survey article, “Civil Practice and Procedure,” see 46 U. Rich. L. Rev. 9 (2011).

For annual survey article, “Wills, Trusts, and Estates,” see 46 U. Rich. L. Rev. 243 (2011).

For essay, “Nonsuit in Virginia Civil Trials,” see 48 U. Rich. L. Rev. 265 (2013).

Research References.

Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 5. Parties. § 5.01 Misnomer, et seq. Bryson.

Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 4. Garnishment. § 4.4 Parties to the Garnishment Proceedings. Rendleman.

Friend’s Virginia Pleading and Practice (Matthew Bender). Chapter 5 Parties. § 5.02 Necessary Parties. Friend.

Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 23 Assets of the Estate. § 23.10 Damages for Wrongful Death. Cox

Virginia Forms (Matthew Bender). No. 2-313. Motion to Dismiss on Ground of Misjoinder of Party.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, § 14.

CASE NOTES

Editor’s note.

Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

The Virginia statutes are liberal in their provisions for adding new parties in cases of nonjoinder. McDaniel v. North Carolina Pulp Co., 198 Va. 612 , 95 S.E.2d 201, 1956 Va. LEXIS 248 (1956), overruled, Harmon v. Sadjadi, 273 Va. 184 , 639 S.E.2d 294, 2007 Va. LEXIS 1 (2007).

The purpose of a former version of this section was to extend the power of the court by further providing that in any suit or action when it appeared there was a nonjoinder of necessary parties, then the court, in the exercise of its discretion, could compel the joinder of such parties, and not to end in one suit or action the rights of a plaintiff and the liabilities of those who otherwise might be defendants in future litigation. Hogan v. Miller, 156 Va. 166 , 157 S.E. 540 , 1931 Va. LEXIS 185 (1931).

Nonjoinder defined. —

Nonjoinder means that a party has been omitted who ought to be joined with an existing party, not substituted for an existing party. Bardach Iron & Steel Co. v. Tenenbaum, 136 Va. 163 , 118 S.E. 502 , 1923 Va. LEXIS 76 (1923).

This section relates to nonjoinder and misjoinder, and not to substitution of one sole plaintiff for another sole plaintiff. Bardach Iron & Steel Co. v. Tenenbaum, 136 Va. 163 , 118 S.E. 502 , 1923 Va. LEXIS 76 (1923).

The word “may” means the same as “shall” in a statute of this kind which is in furtherance of justice. Lee v. Mutual Reserve Fund Life Ass'n, 97 Va. 160 , 33 S.E. 556 , 1899 Va. LEXIS 23 (1899).

This is purely a procedural statute and in no wise changes the nature of tort liability. The effect of the statute as to nonjoinder is that the omission of a defendant necessary for the maintenance of the plaintiff’s action can be corrected by the method provided. Hogan v. Miller, 156 Va. 166 , 157 S.E. 540 , 1931 Va. LEXIS 185 (1931).

Nonjoinder not grounds for dismissal. —

The alleged nonjoinder of parties plaintiff was not a proper ground for dismissing action. Indeed, if the defendants had desired to pursue the matter, they and the trial court should have followed the procedures set forth in the statute and the rule for determining whether the purported partners were necessary parties. Fox v. Deese, 234 Va. 412 , 362 S.E.2d 699, 4 Va. Law Rep. 1248, 1987 Va. LEXIS 272 (1987).

Misjoinder of parties should be raised by a motion to drop the improperly joined parties, not by a demurrer. Powers v. Cherin, 249 Va. 33 , 452 S.E.2d 666, 1995 Va. LEXIS 17 (1995).

Ward’s suit in own name not subject to amendment. —

Under § 37.1-141, [now § 37.2-1026] any action on behalf of a ward must be brought by the ward’s guardian and this section did not permit amendment of a pleading to comply with the statute where a ward had attempted to bring suit in her own name. Cook v. Radford Community Hosp., Inc., 260 Va. 443 , 536 S.E.2d 906, 2000 Va. LEXIS 133 (2000).

Rule that cotrespassers jointly and severally liable not changed. —

The settled rule in Virginia, which has not been disturbed by the enactment of this section, is that cotrespassers are jointly and severally liable, and the party injured may sue all of them jointly, or two or more of them jointly or one of them severally, as he may see proper; and § 8.01-443 fortifies this conclusion. Hogan v. Miller, 156 Va. 166 , 157 S.E. 540 , 1931 Va. LEXIS 185 (1931).

Joinder of co-administrator. —

This section § 8.01-5 permitted the joinder of a second co-administrator to a wrongful death action under the Virginia Wrongful Death Act, § 8.01-50 , because the first co-administrator was already a party plaintiff; the claims in the suit did not change as a result of the joinder; and the first co-administrator’s initial filing, without the second co-administrator, of the wrongful death claim tolled the statute of limitations for that claim under subsection B of § 8.01-244 . Addison v. Jurgelsky, 281 Va. 205 , 704 S.E.2d 402, 2011 Va. LEXIS 16 (2011).

Insurer may be added as party defendant at its own request. —

This section is undoubtedly for the benefit of the insurer and does not foreclose the right to be added as a party defendant at its request where it is clear that the insurer has a definite interest in the action. Matthews v. Allstate Ins. Co., 194 F. Supp. 459, 1961 U.S. Dist. LEXIS 3267 (E.D. Va. 1961).

Action of plaintiffs in making insurer a party defendant was premature where liability of the insured had not been determined. Laws v. Spain, 51 F.R.D. 307, 1970 U.S. Dist. LEXIS 10051 (E.D. Va. 1970).

Even if a state court plaintiff wanted to name a defendant’s liability insurer as an additional defendant in an effort to have the duty to indemnify decision made in the same case, such state court plaintiff would be precluded from doing so because, in Virginia, an injured person must reduce his claim to judgment before bringing an action against the tortfeasor’s liability insurer; moreover, § 8.01-5 , prohibits the joinder of an insurance company on account of the issuance of an insurance policy to or for the benefit of any party to any cause. Builders Mut. Ins. Co. v. Futura Group, L.L.C., 779 F. Supp. 2d 529, 2011 U.S. Dist. LEXIS 45137 (E.D. Va. 2011).

Joinder of an insurance company. —

As Virginia law required a determination of the facts and reduction of a claim to judgment before the party alleging injury brought an action against an insurer, the legal analysis necessary for the duty to indemnify determination could not take place until after the ultimate factual findings were made in the state court suit. Builders Mut. Ins. Co. v. Futura Group, L.L.C., 779 F. Supp. 2d 529, 2011 U.S. Dist. LEXIS 45137 (E.D. Va. 2011).

Section inapplicable to insurer prosecuting contribution suit between tort-feasors. —

This section has no application to a situation where the sole real party in interest is an insurance company prosecuting a contribution suit between tort-feasors. Laws v. Spain, 51 F.R.D. 307, 1970 U.S. Dist. LEXIS 10051 (E.D. Va. 1970).

Limited liability company is necessary party in derivative action. —

Limited liability company was a necessary party in a derivative action brought by one of the members against the other members, pursuant to Va. Sup. Ct. R. 3:12. Siska Trust v. Milestone Dev., 282 Va. 169 , 715 S.E.2d 21, 2011 Va. LEXIS 180 (2011).

Election of cause of action. —

In an action for malicious prosecution against a corporation and a special officer employed by it, when it developed that plaintiff’s causes of action were not the same as to both defendants, and that they could not properly be sued jointly as to two torts alleged to have been committed against plaintiff, plaintiff should have been required to elect which cause of action he would pursue. Norfolk Union Bus Term., Inc. v. Sheldon, 188 Va. 288 , 49 S.E.2d 338, 1948 Va. LEXIS 164 (1948).

CIRCUIT COURT OPINIONS

Amendments within discretion of court. —

Amendments to add or substitute a proper party lie within the discretion of the court under § 8.01-5 ; under Va. Sup. Ct. R. 1:8 no amendments shall be made to any pleading after it is filed save by leave of court. Gearing v. Every Citizen Has Opportunities, Inc., 59 Va. Cir. 41, 2002 Va. Cir. LEXIS 118 (Loudoun County Mar. 19, 2002).

Nonjoinder not grounds for dismissal. —

Where the trial court lacked subject matter jurisdiction to grant the motion for summary judgment due to the injured party’s failure to join the necessary parties, the trial court was permitted under § 8.01-5 and former Va. Sup. Ct. R. 3:14 [see now R. 3:16] to add the necessary parties rather than dismiss the case. Hester v. State Farm Mut. Auto. Ins. Co., 58 Va. Cir. 289, 2002 Va. Cir. LEXIS 148 (Chesterfield County Mar. 4, 2002).

Because a final order had not been entered on the employee’s motion for a declaratory judgment, the defect of missing parties could be cured through proper procedural remedies; therefore, the matter did not need to be dismissed. Hester v. State Farm Mut. Auto. Ins. Co., 58 Va. Cir. 289, 2002 Va. Cir. LEXIS 148 (Chesterfield County Mar. 4, 2002).

Sellers’ representative had standing to bring a breach of contract action against the buyer because, as one of the sellers in the transaction, his individual rights would be affected by the outcome of the proceedings, while the contract provided the ability to initiate litigation on behalf of the sellers, they were “necessary parties” and, rather than dismissing the action, the representative should be granted leave to amend the complaint in order to join the sellers as parties in the action. Eisiminger v. Perspecta, Inc., 108 Va. Cir. 302, 2021 Va. Cir. LEXIS 155 (Fairfax County July 21, 2021).

Motion to drop misjoined party. —

Based on the discretionary language of § 8.01-5 , the fact that the claims asserted arose from the same incident and involved the same issue and the danger of the jury’s misuse of the evidence presented by one plaintiff to reward another was slight, and any danger could be addressed in an appropriate jury instruction, a motion to drop a misjoined party was denied. Deane v. Mady, 72 Va. Cir. 304, 2006 Va. Cir. LEXIS 309 (Charlottesville Dec. 1, 2006).

Two libel plaintiffs’ claims against the same defendant were misjoined. —

Political candidate and his business associate were two separate individuals asserting separate claims of libel against rival candidates in one lawsuit. This represented an improper union of parties and causes of action in one case, and the court ordered the two plaintiffs to elect which of them should be dropped from the lawsuit. Borgenicht v. Norment, 75 Va. Cir. 382, 2008 Va. Cir. LEXIS 269 (Richmond Aug. 19, 2008).

Joinder permitted. —

Joinder of the estates claims against the pharmaceutical manufacturers and the health-care providers was permitted because the right of action against each defendant rested upon the allegation that the decedent’s death resulted from the negligence of each and thus, the claims arose out of the same transaction or occurrence. Wright v. Eli Lilly & Co., 66 Va. Cir. 195, 2004 Va. Cir. LEXIS 316 (Portsmouth Nov. 15, 2004).

Individuals were necessary parties, and full justice could not be done without their presence, because they all had material interests in the litigation, which could be affected depending on the outcome of the plea in bar; while a CEO failed to serve the motion on the individuals, proceeding on the plea in bar without ensuring they had formal notice of the litigation and the opportunity to respond would constitute an injustice and could result in multiple litigation and inconsistent results. MartianCraft, LLC v. Richter, 98 Va. Cir. 269, 2018 Va. Cir. LEXIS 59 (Richmond Mar. 28, 2018).

Motion to join not timely. —

Company’s offer in its post-trial brief to move to join parent corporation, which was the entity that was supposed to receive the payment of money under a business deal the company negotiated with the corporation, or to join the subsidiary corporation, which was the entity the company was to merge into on or before the business deal closed, was too late to meet the end of justice requirement, and, thus, the offer to join either or both entities was denied. Am. View Networks, Inc. v. Heartland Capital Corp., 68 Va. Cir. 13, 2005 Va. Cir. LEXIS 29 (Fairfax County Jan. 31, 2005).

Motion to dismiss corporation from action granted. —

In two actions involving contract and tort claims over a home repair, the trial court granted the corporation’s motion to dismiss it as a defendant in the second action because only a contractor sued the homeowners, the corporation and the contractor denied that the corporation ever had dealings with the homeowners, the homeowners did not plead sufficient specific facts showing that they engaged the corporation to fix their roof, and they alleged no reason for a subterfuge or fraud. Jenkins Servs., LLC v. Martin, 95 Va. Cir. 5, 2016 Va. Cir. LEXIS 241 (Westmoreland County Feb. 5, 2016).

Dismissal. —

Property owner’s action had to be dismissed for lack of necessary parties, because signatories to a deeded right-of-way were all necessary parties due to the nature of the relief requested, injunctive relief seeking the removal of a locked gate; it was not proper to exercise subject matter jurisdiction without all of the necessary parties because there would be further litigation touching the matter in dispute, and the owner did not address how joinder was not feasible. Hodge v. Lyon Ball Prop., LLC, 94 Va. Cir. 407, 2016 Va. Cir. LEXIS 163 (Nelson County Oct. 19, 2016).

Because third-party defendant’s counterclaim alleged that the city breached the parties’ contract, whereas the remainder of the litigation after the court’s ruling that the city was entitled to sovereign immunity and dismissal of the city’s third-party complaints did not involve the contract between the city and the third-party defendant, the court dismissed the third-party defendant’s counterclaim to the city’s third-party complaint as the third-party defendant’s breach of contract counterclaim was more properly adjudicated independent of the current litigation. Pridemore v. Hryniewich, 96 Va. Cir. 418, 2017 Va. Cir. LEXIS 176 (Norfolk Sept. 29, 2017), modified in part, dismissed without prejudice, No. CL16-3262-00/01/02/03, 2017 Va. Cir. LEXIS 298 (Norfolk Oct. 6, 2017), modified in part, dismissed without prejudice, 96 Va. Cir. 418, 2017 Va. Cir. LEXIS 297 (Norfolk Oct. 6, 2017).

Although none of the third-party defendants moved to dismiss the city’s third-party complaints in light of the court’s holding that the city was entitled to sovereign immunity, the court found that such action was necessary in order to meet the ends of justice. Pridemore v. Hryniewich, 96 Va. Cir. 418, 2017 Va. Cir. LEXIS 176 (Norfolk Sept. 29, 2017), modified in part, dismissed without prejudice, No. CL16-3262-00/01/02/03, 2017 Va. Cir. LEXIS 298 (Norfolk Oct. 6, 2017), modified in part, dismissed without prejudice, 96 Va. Cir. 418, 2017 Va. Cir. LEXIS 297 (Norfolk Oct. 6, 2017).

Motion to dimiss denied. —

Rule allows a party to plead alternative facts and theories of recovery against alternative parties, provided that such claims arise out of the same transaction or occurrence, and if there is a failure of the condition of same transaction or occurrence, the two claims cannot be made in the same lawsuit, but may be separated; the statute on misjoinder does not require dismissal of one or both of the claims, it only directs that the court may order separate trials on the misjoined counts, and the court declined to dismiss the complaint for misjoinder of parties or actions. Balwanz v. Amole, 97 Va. Cir. 391, 2013 Va. Cir. LEXIS 224 (Westmoreland County Feb. 5, 2013).

CASE NOTES

Party found not to be necessary party. —

When a parent brought a declaratory judgment action challenging the validity of a provision in an enrollment contract between the parent and a school, which entitled the school to collect attorneys’ fees and costs from the parent without limitation in any action arising out of or related to the contract, the parent’s spouse and cosignatory to the contract was not a necessary party to the dispute because the parent was seeking only to determine the parent’s rights and the spouse’s rights were not ripe for adjudication. McIntosh v. Flint Hill Sch., 100 Va. Cir. 32, 2018 Va. Cir. LEXIS 321 (Fairfax County Sept. 17, 2018), aff'd, No. 181678, 2020 Va. Unpub. LEXIS 1 (Va. Jan. 2, 2020).

§ 8.01-6. Amending pleading; relation back to original pleading.

A misnomer in any pleading may, on the motion of any party, and on affidavit of the right name, be amended by inserting the right name. An amendment changing the party against whom a claim is asserted, whether to correct a misnomer or otherwise, relates back to the date of the original pleading if (i) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading, (ii) within the limitations period prescribed for commencing the action against the party to be brought in by the amendment, that party or its agent received notice of the institution of the action, (iii) that party will not be prejudiced in maintaining a defense on the merits, and (iv) that party knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against that party.

History. Code 1950, § 8-97; 1954, c. 333; 1977, c. 617; 1990, c. 80; 1996, c. 693; 2004, cc. 141, 326.

REVISERS’ NOTE

Section 8.01-276 obviates the need for reference to the former use of pleas in abatement for misnomer. Otherwise, § 8.01-6 does not change the substance of former § 8-97.

Cross references.

As to indictments, see §§ 19.2-216 through 19.2-238 .

The 2004 amendments.

The 2004 amendments by cc. 141 and 326 are identical, and in the last sentence, inserted “or its agent” in clause (ii), inserted the clause (iii) and (iv) designations, substituted “party” for “he” in clause (iii), substituted “that party” for “he” and “that party” for “him” in clause (iv), and made minor stylistic changes.

Law Review.

For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, § 14.

CASE NOTES

Editor’s note.

Some of the cases cited below were decided under corresponding provisions of former law.

Amendment to cure defect in signature on complaint does not relate back. —

Because of the strong public policy considerations underlying § 8.01-271.1 , Va. Sup. Ct. R. 1:4 and 1A:4(2), the Supreme Court of Virginia construes them to require that a lawyer who files a pleading in a Virginia tribunal must append his personal, handwritten signature to a pleading; thus, a complaint signed on behalf of a licensed Virginia attorney by an attorney not licensed in Virginia was a nullity and as none of the relation back situations for amending pleadings applied, the defect could not be cured by providing the appropriate signature. Shipe v. Hunter, 280 Va. 480 , 699 S.E.2d 519, 2010 Va. LEXIS 231 (2010).

Misnomer arises. when the right person is incorrectly named, not where the wrong defendant is named. Swann v. Marks, 252 Va. 181 , 476 S.E.2d 170, 1996 Va. LEXIS 80 (1996).

The personal representative of a decedent and the decedent’s “estate” are two separate entities; the personal representative is a living individual while the “estate” is a collection of property. Thus, one cannot be substituted for another under the concept of correcting a misnomer. Swann v. Marks, 252 Va. 181 , 476 S.E.2d 170, 1996 Va. LEXIS 80 (1996).

This section was not applicable where a ward had attempted to bring suit in her own name as this was not a case in which the right person, that being the ward’s guardian, was incorrectly named but one in which the wrong person, that being the ward, was named. Cook v. Radford Community Hosp., Inc., 260 Va. 443 , 536 S.E.2d 906, 2000 Va. LEXIS 133 (2000).

Trial court properly denied, for lack of standing, a bankruptcy debtor’s motions to amend the named plaintiff in her pleadings to her bankruptcy trustee, due to a misnomer, or to be substituted as the proper plaintiff because not only did she fail to properly schedule her personal injury cause of action with the requisite specificity and affirmatively represented that no such existed in the area where the trustee would expect to find any such causes of action, there was no misnomer inasmuch as the debtor and the trustee were not the same person, and since the debtor lacked standing to bring the suit, the trustee could not be substituted as the proper plaintiff. Ricketts v. Strange, 293 Va. 101 , 796 S.E.2d 182, 2017 Va. LEXIS 5 (2017).

A misnomer is a mistake in name but not person. Rockwell v. Allman, 211 Va. 560 , 179 S.E.2d 471, 1971 Va. LEXIS 216 (1971).

An amendment is permitted where the right party is before court, although under a wrong name. Rockwell v. Allman, 211 Va. 560 , 179 S.E.2d 471, 1971 Va. LEXIS 216 (1971).

But where the wrong person is named, it cannot be corrected by labelling it a misnomer. Rockwell v. Allman, 211 Va. 560 , 179 S.E.2d 471, 1971 Va. LEXIS 216 (1971).

No correction allowed for material error. —

When the mistake in the name of a corporation, whether plaintiff or defendant, is slight, and it clearly appears what corporation is meant — or as it is sometimes expressed, where the pleading incorrectly names a corporation, but correctly describes it — the mistake is amendable. But where the error is so material (especially in the name of the defendant) that no such corporation exists, it is fatal at the trial; and the former version of this section does not obviate the result stated. Leckie v. Seal, 161 Va. 215 , 170 S.E. 844 , 1933 Va. LEXIS 313 (1933); Baldwin v. Norton Hotel, Inc., 163 Va. 76 , 175 S.E. 751 , 1934 Va. LEXIS 165 (1934).

Naming locality instead of Board of Supervisors was not a misnomer. —

First landowner’s bill of complaint challenging a board’s issuance of a conditional use permit was dismissed with prejudice, as she failed to name the board as a party to the action, as required by subsection F of § 15.2-2285 , and the terms “locality” and “board of supervisors” were not synonymous or interchangeable. Further, she could not employ the statutory remedy provided by § 8.01-6 for correcting a misnomer. Miller v. Highland County, 274 Va. 355 , 650 S.E.2d 532, 2007 Va. LEXIS 119 (2007).

Language naming the decedent’s estate, administrator. —

Trial court erred in finding that a decedent’s administrator was the defendant in a personal injury action as, although a motion to amend the judgment under subdivision B 2 b of § 8.01-229 was proper, language naming the decedent’s estate, administrator, in the caption was ambiguous when the motion to amend the judgment was read as a whole; the wrong defendant was named, § 8.01-6 did not apply, and the misjoinder could not be legitimized by substituting the correct party. Estate of James v. Peyton, 277 Va. 443 , 674 S.E.2d 864, 2009 Va. LEXIS 60 (2009) (decided prior to enactment of § 8.01-6.3 ).

When amendment to cure misnomer allowed notwithstanding statute of limitations. —

If the right party is before the court although under a wrong name, an amendment to cure a misnomer will be allowed, notwithstanding the running of the statute of limitations, provided there is no change in the cause of action originally stated. Jacobson v. Southern Biscuit Co., 198 Va. 813 , 97 S.E.2d 1, 1957 Va. LEXIS 143 (1957).

Omission of “incorporated.” —

Where a corporation defendant is misdescribed simply by the omission of the word incorporated, and there is no other corporation of the name stated, the plaintiff should be permitted to insert the omitted word in the proper place in his declaration. Arminius Chem. Co. v. White's Adm'x, 112 Va. 250 , 71 S.E. 637 , 1911 Va. LEXIS 79 (1911).

An action against a corporation in its former name cannot be defeated by showing that it had changed its name without any change of its membership. Welfley v. Shenandoah Iron, Lumber, Mining & Mfg. Co., 83 Va. 768 , 3 S.E. 376 , 1887 Va. LEXIS 121 (1887).

CIRCUIT COURT OPINIONS

A misnomer is a mistake in name but not in person. Shadid v. Estabrooks, 61 Va. Cir. 724, 2002 Va. Cir. LEXIS 315 (Fairfax County Dec. 12, 2002).

Section inapplicable where wrong party is sued. —

Section § 8.01-6 was inapplicable where there was no evidence that a corporation doing business under a trade name was the right defendant; in filing a second suit, the injured party took the position that the correct defendant was a condominium unit owner association, not a corporation, and there was no evidence that the corporate name was merely an incorrect name for the condominium association. Gearing v. Every Citizen Has Opportunities, Inc., 59 Va. Cir. 41, 2002 Va. Cir. LEXIS 118 (Loudoun County Mar. 19, 2002).

In a motor vehicle accident case, defendant’s plea in bar was sustained as plaintiff’s failure to name the correct defendant was a mistake in identification and was not a misnomer, but a misjoinder, because, when plaintiff named the driver’s estranged ex-husband as the defendant, that was not a mistake in the spelling or an inversion of the driver’s name as it simply was not her name; and the ex-husband was never the intended party to be sued; further, because the amended complaint changed the party to be sued and the driver was not served nor named a party until after the applicable two-year statute of limitation period had expired, plaintiff was barred from bringing her claim under the relation back provision. Hendrix v. Legovini, 2017 Va. Cir. LEXIS 340 (Fairfax County Oct. 31, 2017).

Pure Jane Doe case. —

In the instance of what the court calls a pure Jane Doe, the statute categorically cannot apply; this is so because neither the Rules of the Supreme Court of Virginia nor the legislature contemplate Jane Doe pleadings, aside from the narrow exception for uninsured motorists. Frazier v. Red Robin Int'l, Inc., 99 Va. Cir. 214, 2018 Va. Cir. LEXIS 100 (Fairfax County June 1, 2018).

As section only applies to amendments to pleadings. —

If § 8.01-6 were to apply when a change in parties occurs, then the “relation back” provision would come into effect if the requirements of subparts (i) and (ii) of the statute were met; however, § 8.01-6 by its terms only applies to an amendment to a pleading. Gearing v. Every Citizen Has Opportunities, Inc., 59 Va. Cir. 41, 2002 Va. Cir. LEXIS 118 (Loudoun County Mar. 19, 2002).

Amendment to add Commonwealth of Virginia as proper party allowed. —

Where an appellate mandate determined that the waiver of sovereign immunity under the Virginia Tort Claims Act did not apply to a state agency, amendment was not precluded to add the Commonwealth of Virginia as the proper party defendant and the amendment to correct the misnomer related back to the original pleading; the claim remained the same, there was no prejudice to the Commonwealth, plaintiff provided proper statutory notice of the claim, and thus the Commonwealth knew or should have known that it was the intended defendant in the action. Carter v. Rector & Visitors of the Univ. of Va., 65 Va. Cir. 326, 2004 Va. Cir. LEXIS 293 (Charlottesville Aug. 4, 2004).

Adding agency as new party is not a misnomer. —

In a medical malpractice case, the patient’s naming an agency as a defendant in place of the Commonwealth was not a misnomer; rather, the Commonwealth and its agencies were distinct, separate parties. Because the pleadings were amended to add a new party rather than to correct a misnomer, § 8.01-6 did not apply. Carter v. Commonwealth, 67 Va. Cir. 308, 2005 Va. Cir. LEXIS 164 (Charlottesville Apr. 28, 2005).

Substitution of Commonwealth for Virginia Department of Transportation allowed. —

In an action brought under the Virginia Tort Claims Act, plaintiff’s motion to amend her complaint to substitute the Commonwealth as a defendant for the Virginia Department of Transportation was granted, as it was clear that the claims against the Department and the Commonwealth were the same. Hobson v. Francisco, 65 Va. Cir. 255, 2004 Va. Cir. LEXIS 273 (Roanoke County July 26, 2004), modified, 67 Va. Cir. 297, 2005 Va. Cir. LEXIS 161 (Roanoke County Apr. 26, 2005).

Addition of new party under facts not pleaded in original bill of complaint. —

Because a patient’s amended action for negligent hiring and retention and lack of informed consent sought to add a new party under facts that were not pleaded in the original bill of complaint, pursuant to § 8.01-6 , the patient’s action was dismissed as to those counts. Nickson v. Rice, 69 Va. Cir. 516, 2004 Va. Cir. LEXIS 365 (Chesterfield County June 22, 2004).

Corporation with similar name. —

Defendant condominium association’s plea in bar was sustained where plaintiff injured party nonsuited her action against a corporation with a similar name; the nonsuit caused there to be no pleadings the injured party could amend to add the correct party and to cause the action to relate back to the date the first action was filed, which meant that the action was barred by the two-year statute of limitations for personal injuries. Gearing v. Every Citizen Has Opportunities, Inc., 59 Va. Cir. 41, 2002 Va. Cir. LEXIS 118 (Loudoun County Mar. 19, 2002).

Company’s fictitious name. —

Because a customer used a company’s fictitious name in the original pleadings and then non-suited the action, the statute of limitations in § 8.01-246 was not tolled; therefore, the customer could not amend the action under §§ 8.01-6 and 8.01-6.2 to add the company’s real name. Harvey v. Mech. Air Servs., 69 Va. Cir. 214, 2005 Va. Cir. LEXIS 184 (Norfolk Oct. 26, 2005).

Failure to file fictitious name certificate. —

Because the correct operating entity of a hotel never filed the fictitious name certificate required by § 59.1-69, and because there was no way that the plaintiff could ever have learned the correct name, the entity’s failure amounted to concealment that estopped it from claiming that service on its registered agent was untimely under this section. Roper v. Fcgmi, Inc., 72 Va. Cir. 135, 2007 Va. Cir. LEXIS 6 (Fairfax County Jan. 2, 2007).

Name fragment amendment. —

Amendment from a name fragment can relate back to the filing date of that fragment if the plaintiff can prove that she knew the defendant’s identity, but not her name, and can prove that the defendant meets all the statutory requirements; a name fragment can be deemed a mistake for the purposes of that statute. Frazier v. Red Robin Int'l, Inc., 99 Va. Cir. 214, 2018 Va. Cir. LEXIS 100 (Fairfax County June 1, 2018).

Where a plaintiff may know the identity of a defendant, but does not have the correct name, if the plaintiff can prove knowledge of the defendant, the fact that the defendant was named using a wrong or incomplete name is a circumstance contemplated by the statute; the wrong or incomplete name can be corrected, and the correction will relate back to the date of the original filing if the plaintiff can meet the four statutory requirements. Frazier v. Red Robin Int'l, Inc., 99 Va. Cir. 214, 2018 Va. Cir. LEXIS 100 (Fairfax County June 1, 2018).

Name fragment, such as “Kathy (last name unknown)” for “Kat Clavelli” in this particular case, could be a mistake from inadequate knowledge if the plaintiff can prove that she knew the identity of the defendant, but just did not know her name until later; if plaintiff could prove that these two names were the same person, and she could prove the four prongs of the statute, then her amended name could relate back, and an evidentiary hearing was required. Frazier v. Red Robin Int'l, Inc., 99 Va. Cir. 214, 2018 Va. Cir. LEXIS 100 (Fairfax County June 1, 2018).

Defect in signature. —

Failure of plaintiff’s complaint to include the signature of at least one of the two attorneys listed on the complaint could not be cured through an amendment of the complaint that would relate back to the date of the original complaint because §§ 8.01-6 through 8.01-6.2 did not authorize an amendment to relate back when the sole purpose was to correct a defect in signature. Lipoli v. Stutesman, 85 Va. Cir. 156, 2012 Va. Cir. LEXIS 170 (Norfolk Aug. 1, 2012).

Four-year delay in filing motion for leave to amend not inordinate under the circumstances. —

In a dental malpractice case, although almost four years elapsed between plaintiff’s injury and the filing of a motion to amend the complaint, plaintiff’s counsel would not be penalized for trying to conduct as much investigation as possible without discovery or for attempting to settle the claim before the dentists were served. As the amount of time spent in negotiations and discovery was not inordinate for a medical malpractice case, plaintiff acted with sufficient diligence to justify allowing the amendment. Hart v. Savage, 72 Va. Cir. 41, 2006 Va. Cir. LEXIS 319 (Norfolk June 7, 2006).

Amendment not allowed where proposed defendants did not receive. —

Under Va. Sup. Ct. R. 3:2(a), a civil action is “instituted” by filing a complaint in the clerk’s office. Letters to defendants and their insurers threatening suit and proposing a settlement did not suffice to give the notice of filing required by § 8.01-6 to allow an amendment to the pleadings that would relate back to the original filing. Hart v. Savage, 72 Va. Cir. 41, 2006 Va. Cir. LEXIS 319 (Norfolk June 7, 2006).

Motion to dismiss based on misnomer denied. —

Where defendant alleged that plaintiff’s amended motion for judgment which corrected a misnomer relating to defendant did not relate to the original motion, defendant’s motion to dismiss was denied, as defendant had received notice of the institution of the action, and should have known that but for the mistake concerning the identity of the proper party that the action would have been brought against him. Clark v. Nuss, 57 Va. Cir. 401, 2002 Va. Cir. LEXIS 224 (Norfolk Feb. 28, 2002).

Motion to amend named party granted. —

Trial court granted the claimant’s motion to amend the named party; the claimant’s amended pleading met the four-part test pursuant to § 8.01-6 for an amendment changing a party’s name to relate back to the original pleading date, and, thus, the statute of limitations did not bar the claimant’s amended pleading. Roper v. FCGMI, Inc., 72 Va. Cir. 135, 2006 Va. Cir. LEXIS 212 (Fairfax County Oct. 4, 2006).

Patient met the requirements for correcting a misnomer, to correctly identify the owner/operator of a hospital, under § 8.01-6 , in that notice sent by the patient would have arrived at the insurer’s office before the expiration of the statute of limitation. Crain v. Chesapeake Gen. Hosp., 79 Va. Cir. 150, 2009 Va. Cir. LEXIS 235 (Chesapeake July 14, 2009).

Motion to amend untimely. —

Judgment creditor’s claim against a corporation was dismissed because although acting in good faith, the judgment creditor either served only the wrong entity or failed by timely amendment to bring the proper entity before the circuit court for adjudication of its claim; it would be error to permit amendment at the late stage of trial without affording the corporation at least a continuance and the right to prepare further to meet the amendment, including with the reopening of discovery. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017), vacated, rev'd, 300 Va. 25 , 859 S.E.2d 651, 2021 Va. LEXIS 71 (2021).

Change of name included. —

Because § 8.01-6 expanded the amendments included under the statute, specifically the change of name, § 8.01-6 applied; however, the second issue was whether the defendant driver received notice of the institution of the action within the limitation period proscribed for commencing the action. While the driver was present in the courtroom, plaintiff’s counsel decided not to call her or put on any evidence at that time and thus, there was no evidence to the contrary of what was represented by the defense and plaintiff’s counsel did not contest defense counsel’s proffers regarding notice to the driver. Snow v. Walker, 80 Va. Cir. 194, 2010 Va. Cir. LEXIS 34 (Albemarle County Feb. 25, 2010).

No misnomer found. —

Where a police officer was not named in an original warrant in debt against a county, but was later added by a new warrant in debt, the case did not involve a misnomer, and the officer had no notice of the original suit; thus, the second warrant in debt adding the officer was untimely and did not relate back to the original pleading. Nguyen v. Long, 60 Va. Cir. 168, 2002 Va. Cir. LEXIS 283 (Fairfax County Sept. 23, 2002).

Because the decedent’s personal representative and the decedent’s estate were two separate entities, one cannot be substituted for another under the concept of correcting a misnomer. George v. Aylward, 62 Va. Cir. 457, 2003 Va. Cir. LEXIS 288 (Prince William County Aug. 27, 2003).

Original suit seeking damages from a traffic accident filed against a decedent who died before the suit was filed and the original motion for judgment were legal nullities, did not toll the statute of limitations, and subdivision B 2 b of § 8.01-229 was inapplicable to the case since the motorist suffered a voluntary nonsuit; since the substitution of a personal representative for a deceased defendant was not to have been construed to fall within the correction of a misnomer under § 8.01-6 , the “relation back” provision of that section did not apply, so the applicable statute of limitation was found at subdivision B 2 a of § 8.01-229 , pursuant to which, the statute of limitations applied approximately 3 1/2 months before the motorist refiled the action and thus the case was dismissed as untimely filed. Antoine v. Reeves, 63 Va. Cir. 585, 2004 Va. Cir. LEXIS 92 (Norfolk Feb. 4, 2004).

Defendant’s motion for summary judgment was granted, which asserted it was not the proper defendant, because plaintiff’s negligence complaint suing “Jeff Rorer, d/b/a Mostly Sofa’s” when it should have sued “Faith, Inc.” was more than a misnomer and was not amendable under § 8.01-6 , because the businesses were separate entities. Amendment was further precluded because neither the originally named defendant, nor the correct defendant, was served within the applicable statute of limitations period, thus, it did not matter that “Mostly Sofa’s” never filed a certificate identifying itself as a fictitious name. Bryant v. Rorer, 66 Va. Cir. 226, 2004 Va. Cir. LEXIS 353 (Roanoke Nov. 19, 2004).

Because a plaintiff’s counsel knew the difference between a senior center and a management company with a similar name, but inadvertently named and described the management company as a defendant, it was not a misnomer that could be corrected by an amendment under § 8.01-6 and/or § 8.01-6.2 .Berndtson v. Sunrise Senior Living, Inc., 70 Va. Cir. 345, 2006 Va. Cir. LEXIS 55 (Fairfax County Apr. 4, 2006).

Wife could not be substituted for a husband who was incorrectly named as party defendant in a motion for judgment in plaintiff’s personal injury action; no misnomer had occurred because the right person was not incorrectly named, and there could be no relation back because it was not shown that the wife received notice of the action within the two-year limitation period of § 8.01-243 . Babbington v. Neumann, 70 Va. Cir. 9, 2005 Va. Cir. LEXIS 304 (Alexandria Apr. 18, 2005).

Judgment creditor’s claim against a corporation was dismissed because the lessor would not avail itself of the relief offered by correction of a misnomer; substitution of a Florida entity for its identically-named Virginia counterpart was not the correction of a misnomer. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017), vacated, rev'd, 300 Va. 25 , 859 S.E.2d 651, 2021 Va. LEXIS 71 (2021).

Misnomer provision applied to medical malpractice claim under Tort Claims Act. —

Section 8.01-6 , which governs misnomer, applied to the patient’s malpractice claim under the Virginia Tort Claims Act; even though the amended pleading under § 8.01-6 related back to date of the original pleading, it was not equivalent to tolling a statute of limitations. Miller v. Univ. of Va. Med. Ctr., 58 Va. Cir. 240, 2002 Va. Cir. LEXIS 5 (Albemarle County Feb. 25, 2002).

Motion to correct clerical error set aside. —

Where the victim filed an action naming the son’s father as a defendant, but where the victim’s motion to correct a clerical error to change the name of the defendant to the son was granted, the son’s motion to set aside the order was granted, as the facts did not constitute a clerical error correctable under this section; the conditions for relation back had not been satisfied. Shadid v. Estabrooks, 61 Va. Cir. 724, 2002 Va. Cir. LEXIS 315 (Fairfax County Dec. 12, 2002).

CASE NOTES

Relation back proper for mistake in defendant’s identity. —

Relation back was proper, as the claim asserted in the amended complaint arose out of the same automobile accident upon which the initial complaint was based; defendant two resided with her mother, defendant one, at the time the initial complaint was served and received notice of the institution of this action and retained counsel to notify her if a complaint was filed against her, and she knew that but for a mistake regarding the identity of the proper defendant, the action would have been brought against her. Cooper v. Royall, 99 Va. Cir. 460, 2018 Va. Cir. LEXIS 333 (Chesapeake Aug. 22, 2018).

§ 8.01-6.1. Amendment of pleading changing or adding a claim or defense; relation back.

Subject to any other applicable provisions of law, an amendment of a pleading changing or adding a claim or defense against a party relates back to the date of the original pleadings for purposes of the statute of limitations if the court finds (i) the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, (ii) the amending party was reasonably diligent in asserting the amended claim or defense, and (iii) parties opposing the amendment will not be substantially prejudiced in litigating on the merits as a result of the timing of the amendment. In connection with such an amendment, the trial court may grant a continuance or other relief to protect the parties. This section shall not apply to eminent domain or mechanics’ lien claims or defenses.

History. 1996, c. 693.

Law Review.

For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

For review of judicial decisions of significance in Virginia affecting construction law, see 43 U. Rich. L. Rev. 107 (2008).

CASE NOTES

Amended pleadings. —

Court rejected chassis manufacturer’s argument that because it did not receive notice of a Lemon Law claim within the limitations period, an amended complaint should not relate back because it failed to recognize that the “limitations period” referred to in the relation back context included the allowable time for service of process. Under Virginia law, the statute of limitations was tolled upon the filing of the lawsuit, not upon the time of service on the defendant, and the manufacturer was served both within the Fed. R. Civ. P. 4(m) service deadline and the Virginia one-year deadline, VA. R. Civ. P. 3:5(e). Hoffman v. Daimler Trucks N. Am., LLC, 940 F. Supp. 2d 347, 2013 U.S. Dist. LEXIS 53118 (W.D. Va. 2013).

Where RV buyer filed his original complaint against the manufacturer in state court just a few days before expiration of the 18-month statute of limitations under § 59.1-207.11 (the Lemon law) but amended his complaint to change the named defendant to the chassis manufacturer, the amendment was not barred by the statute of limitations because it related back under Fed. R. Civ. P. 15(c)(1)(A) under the pertinent state statute, § 8.01-6.1 , as the amendment consisted of the same conduct, transaction, or occurrence as in the original pleading; because the buyer’s less than two-month delay in filing the amended claim was not sufficient grounds for finding a lack of reasonable diligence; and because the chassis manufacturer would not be prejudiced in defending the Lemon Law claim on the merits, as it received notice of the Lemon Law claim at the exact same time it received notice of a warranty claim. Hoffman v. Daimler Trucks N. Am., LLC, 940 F. Supp. 2d 347, 2013 U.S. Dist. LEXIS 53118 (W.D. Va. 2013).

CIRCUIT COURT OPINIONS

Statute applies to amended pleadings only. —

Despite a fourth-party plaintiff general-contractor’s assertion, § 8.01-6.1 did not apply to its action, as: (1) said statute allowed relation back for the purpose of the statute of limitations, not a statute of repose; and (2) the general contractor’s situation was not one where it amended its pleading against the subcontractors, but instead, filed an entirely new pleading. Bd. of Dirs. of Birdneck Villas Condo. Ass'n v. Birdneck Villas, LLC, 73 Va. Cir. 175, 2007 Va. Cir. LEXIS 77 (Virginia Beach Apr. 2, 2007).

Although a patient asserted that the patient’s new medical malpractice claims related back to the date of the patient’s original complaint, which the patient nonsuited, the new claims were not amendments to that complaint, but, instead, were claims asserted for the first time in the new complaint. Because the new claims were not amendments to the original complaint, they did not relate back under Va. Code Ann. § 8.01-6.1 . Lawton-Gunter v. Meyer, 88 Va. Cir. 327, 2014 Va. Cir. LEXIS 73 (Roanoke June 12, 2014).

Amended pleadings. —

Amendments were permitted which would relate back to the original pleadings and would not be subject to a plea of the statute of limitations. Ritchie v. Norton Cmty. Hosp., 55 Va. Cir. 96, 2001 Va. Cir. LEXIS 244 (Wise County Mar. 15, 2001).

Because plaintiff’s amended complaint for punitive damages related back to the same incident in which defendant injured plaintiff, his complaint for punitive damages was not a new cause of action, and § 8.01-6.1 was inapplicable. Weaver v. Franklin, 2002 Va. Cir. LEXIS 273 (Newport News Sept. 18, 2002).

Amended counterclaim that included alleged defamatory statements that were not included in the original counterclaim did not violate the statute of limitations since they arose out of the same conduct set forth in the original pleadings and thus, related back to the original pleadings. Stanley v. Storck, 61 Va. Cir. 515, 2003 Va. Cir. LEXIS 135 (Norfolk May 9, 2003).

Plaintiff’s motion for leave to file third amended complaint was granted because that complaint, including its new breach of contract claim and its punitive damages claim, arose out of the conduct, transaction, or occurrence of the personal injury cause of action set forth in the original pleading; plaintiff was reasonably diligent in asserting the third amended complaint; defendants would not be substantially prejudiced in litigating on the merits as a result of the timing of the amendment, as discovery had not been completed and the time period was not all that long; and the third amended complaint related back to the time of filing of the original pleading, and was not time-barred by the applicable two-year statute of limitations. Rauchfuss v. Peninsula Radiological Assocs., 94 Va. Cir. 8, 2016 Va. Cir. LEXIS 60 (Newport News Apr. 28, 2016).

Relation back found. —

Repleaded count of a husband’s amended cross-bill related back to the conduct, transaction, or occurrence set forth in the original count of his cross-bill, and thus, the repleaded count was not barred by the statute of limitations, because both counts alleged one written contract and specific incidents were changed; “change” includes delete. Kelsoe v. Kelsoe, 88 Va. Cir. 423, 2004 Va. Cir. LEXIS 392 (Essex County Sept. 9, 2004).

Court found that: (1) the amended complaint alleged the same set of operative facts, including a claimed struggle, that gave rise to the differing rights of action for wrongful death and civil conspiracy asserted; (2) the transaction or occurrence of a possible struggle was asserted in the 2005 motion for judgment, and it was the greater specificity of facts gained from subsequent discovery that allowed the administrator to assert a wrongful death claim based on the alleged assault, and thus, the administrator was reasonably diligent in determining what claims she might have and asserting the additional claim upon more information; and (3) although the alleged co-conspirator contended that the possibility of insurance coverage constituted actual, substantial prejudice, the court was not convinced that the timeliness of the amended motion for judgment substantially prejudiced the alleged co-conspirator; therefore, the administrator satisfied all of the requirements of § 8.01-6.1 , amending her complaint such that the rights of action filed on November 16, 2007, related back to the cause of action she initially asserted in her 2005 motion for judgment. Thus, the administrator properly recommenced her suit within the six-month period after nonsuiting the action and the administrator’s recovery was not barred by the two-year statute of limitations under §§ 8.01-244 and 8.01-248 . Clark v. Britt, 79 Va. Cir. 60, 2009 Va. Cir. LEXIS 72 (Fairfax County Apr. 24, 2009).

Negligent infliction of emotional harm claim in an employee’s amended complaint related back to the date of the original complaint under § 8.01-6.1 , and was not time-barred because the original complaint contained an intentional infliction claim, and thus the amendment was not a new substantive cause of action; the employee was reasonably diligent in asserting his claim and no prejudice was shown by allowing the amendment. Ballard v. Hanover Research Council, 2010 Va. Cir. LEXIS 110 (Fairfax County Sept. 24, 2010).

Conditions in § 8.01-6.1 were satisfied to allow an amended pleading relating back to the date of the original pleading so that the victim could plead an employee’s course and scope of employment because respondeat superior was not a new cause of action for statute of limitations purposes, but a legal theory of liability. Shaver v. HPB Corp., 84 Va. Cir. 382, 2012 Va. Cir. LEXIS 134 (Charlottesville Mar. 19, 2012).

Patient’s motion to amend her complaint to allow a count of negligent retention of a doctor by his employer was granted because the claim arose out of the conduct, transaction, or occurrence set forth in the original complaint, which was the negligence and proximate cause of the patient’s injuries by the doctor’s alleged negligent acts or omissions. Butler v. Anglero, 95 Va. Cir. 77, 2017 Va. Cir. LEXIS 8 (Chesapeake Jan. 12, 2017).

Despite plaintiff’s failure to obtain leave to amend before serving the amended complaint, it related back; the amended complaint provided further factual allegations about the original defendants named in the complaint, plaintiffs were reasonably diligent in asserting the amended claim, and the original defendants would not be prejudiced with the amendment’s timing. Freeman v. Curtis Bay Med. Waste Servs. Va., L.L.C., 102 Va. Cir. 245, 2019 Va. Cir. LEXIS 263 (Petersburg June 21, 2019).

No relation back. —

Plaintiff’s proposed amendment to add a personal injury claim to a complaint alleging negligent infliction of emotional distress (NIED), intentional infliction of emotional distress (IIED), and property damage did not relate back to the original complaint under § 8.01-6.1 , because it failed two of the three inquiries under the Vines v. Branch , 244 Va. 185 (1992), test; while the evidence used to prove the original allegations of IIED and NIED would support a new claim of personal injury as personal injury was a required element of both those claims, the recovery under the original complaint for IIED or NIED would not bar recovery of personal injuries, and the measure of damages would be different. Swanson v. Woods Serv. Ctr., Inc., 71 Va. Cir. 281, 2006 Va. Cir. LEXIS 240 (Roanoke County July 17, 2006).

Supplier could not amend its complaint to add a subcontractor as a defendant on a bond claim since: (1) the claim was time-barred under § 43-17 ; (2) the relation back provision in § 8.01-6.1 did not apply to mechanic’s liens; and (3) when a party sought enforcement of a bond posted under § 43-71 , the substantive and procedural requirements of the mechanic’s lien statutes applied. Johnson Controls v. Norair Eng'g Corp., 86 Va. Cir. 138, 2013 Va. Cir. LEXIS 3 (Fairfax County Jan. 10, 2013).

Husband’s fraud claim was barred by the statute of limitations and by his own lack of diligence because it was pleaded after the two year statute of limitation on a fraud claim would have run; also, any “relate back” claim would be barred by the wife’s lack of due diligence in delaying another four years to assert the claim. Kelsoe v. Kelsoe, 88 Va. Cir. 423, 2003 Va. Cir. LEXIS 387 (Essex County July 16, 2003).

Wife’s motion for summary judgment was granted because a husband’s breach of contract claim was barred by the statutes of limitations, and his delay in filing the claim did not constitute reasonable diligence in asserting an amended claim; the husband’s breach of contract claim did not relate back to the original conduct, transaction, or occurrence set forth in the wife’s original pleadings. Kelsoe v. Kelsoe, 88 Va. Cir. 423, 2003 Va. Cir. LEXIS 387 (Essex County July 16, 2003).

Since the ex-husband’s Petition for a Rule To Show Cause was neither a pending petition for modification under § 20-112 , nor a petition to terminate under subsection A of § 20-109 , his Petition To Terminate Spousal Support could not reach back to the date of his filing of the Rule as the date of termination for support. Munro v. Munro, 105 Va. Cir. 268, 2020 Va. Cir. LEXIS 93 (Fairfax County July 2, 2020).

Res judicata. —

Judicial doctrine underlying the rule of res judicata, to protect parties from harassing successive suits on matters previously litigated or which could have been litigated, simply does not fit the conduct, transaction or occurrence language in the statute used to determine whether the amended claim arose out of the conduct, transaction or occurrence set forth in the prior pleading. Kelsoe v. Kelsoe, 88 Va. Cir. 423, 2004 Va. Cir. LEXIS 392 (Essex County Sept. 9, 2004).

Motion to amend untimely. —

Although the misrepresentations alleged by the correspondence between plaintiff and defendant dealt with the denial of an insurance claim and involved the same conduct, transaction or occurrence, plaintiff was not reasonably diligent in asserting the claim of constructive fraud (plaintiff waited two years and four months to file leave to amend, and waited nearly 18 months from filing and nearly five years from the date the alleged misrepresentations were made to assert the claim of constructive fraud), and defendant would be substantially prejudiced if the claim were to relate back; thus, the motion for leave to amend was not timely and the claim was barred by the two-year statute of limitations for fraud. Hoover & Strong v. Travelers Ins. Co., 66 Va. Cir. 34, 2004 Va. Cir. LEXIS 233 (Chesterfield County Aug. 27, 2004).

§ 8.01-6.2. Amendment of pleading; relation back to original pleading; confusion in trade name.

  1. A pleading which states a claim against a party whose trade name or corporate name is substantially similar to the trade name or corporate name of another entity may be amended at any time by inserting the correct party’s name, if such party or its agent had actual notice of the claim prior to the expiration of the statute of limitations for filing the claim.
  2. In the event that suit is filed against the estate of a decedent, and filed within the applicable statute of limitations, naming the proper name of estate of the deceased and service is effected or attempted on an individual or individuals as executor, administrator or other officers of the estate, such filing tolls the statute of limitations for said claim in the event the executor, administrator or other officers of the estate are unable to legally receive service at the time service was attempted, or defend suit because their authority as executor, administrator or other officer of the estate excludes defending said actions, or their duties as executor, administrator or other officer of the estate had expired at the time of service or during the time of defending said action.

History. 1999, c. 686.

Law Review.

For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).

Michie’s Jurisprudence.

For related discussion, see 8A M.J. Executors and Administrators, § 311.

CASE NOTES

Action barred by statute of limitations. —

Because nothing in the record suggested that a personal representative, who had been appointed before the expiration of the statute of limitations, was unable to legally receive service, had service been attempted before the expiration of the statute of limitations, subsection B of § 8.01-6.2 did not apply to toll plaintiff’s negligence action filed against an estate. Idoux v. Estate of Helou, 279 Va. 548 , 691 S.E.2d 773, 2010 Va. LEXIS 56 (2010).

CIRCUIT COURT OPINIONS

Action barred by statute of limitations. —

Defendant condominium association’s plea in bar was sustained where plaintiff injured party nonsuited her action against a corporation with a similar name; the nonsuit caused there to be no pleadings the injured party could amend to add the correct party and to cause the action to relate back to the date the first action was filed, which meant that the action was barred by the two-year statute of limitations for personal injuries. Gearing v. Every Citizen Has Opportunities, Inc., 59 Va. Cir. 41, 2002 Va. Cir. LEXIS 118 (Loudoun County Mar. 19, 2002).

Because a customer used a company’s fictitious name in the original pleadings and then non-suited the action, the statute of limitations in § 8.01-246 was not tolled; therefore, the customer could not amend the action under §§ 8.01-6 and 8.01-6.2 to add the company’s real name. Harvey v. Mech. Air Servs., 69 Va. Cir. 214, 2005 Va. Cir. LEXIS 184 (Norfolk Oct. 26, 2005).

Amendment of party name. —

Court allowed an amendment, pursuant to § 8.01-6.2 , when a patient incorrectly identified the owner/operator of a hospital because the substituted party had some relation of interest to the original party, there was no change in the cause of action, and no prejudice was shown. Crain v. Chesapeake Gen. Hosp., 79 Va. Cir. 150, 2009 Va. Cir. LEXIS 235 (Chesapeake July 14, 2009).

Misnomer not found. —

Because a plaintiff’s counsel knew the difference between a senior center and a management company with a similar name, but inadvertently named and described the management company as a defendant, it was not a misnomer that could be corrected by an amendment under § 8.01-6 and/or § 8.01-6.2 .Berndtson v. Sunrise Senior Living, Inc., 70 Va. Cir. 345, 2006 Va. Cir. LEXIS 55 (Fairfax County Apr. 4, 2006).

§ 8.01-6.3. Actions or suits against fiduciaries; style of the case; amendment of pleading.

  1. In any action or suit required to be prosecuted or defended by or in the name of a fiduciary, including a personal representative, trustee, conservator, or guardian, the style of the case in regard to the fiduciary shall be substantially in the following form: “(Name of fiduciary), (type of fiduciary relationship), (Name of the subject of the fiduciary relationship).”
  2. Any pleading filed that does not conform to the requirements of subsection A but otherwise identifies the proper parties shall be amended on the motion of any party or by the court on its own motion. Such amendment relates back to the date of the original pleading.

History. 2010, c. 437.

Editor’s note.

Acts 2010, c. 437, cl. 2, provides: “That the provisions of this act shall apply to any action or suit pending as of the effective date of this act [July 1, 2010].”

Law Review.

For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).

CASE NOTES

Failure to name proper party fatal to action. —

Trial court did not err in denying the wife’s motion to amend her complaint to name the personal representative of her deceased husband’s estate as the proper defendant and dismissing the action as time-barred because the wife failed to comply with this section, by naming the personal representative in the caption or anywhere in the complaint and thus, she did not qualify for the saving doctrine afforded, and was time-barred from a new and proper action. Ray v. Ready, 296 Va. 553 , 822 S.E.2d 181, 2018 Va. LEXIS 197 (2018).

CIRCUIT COURT OPINIONS

Substantial compliance. —

Trial court properly denied a trust’s motion for reconsideration of the denial of its motion for a continuance because its motion came on the eve of trial, the trust had approximately 157 days to hire counsel from the time the previous counsel withdrew, and one of the plaintiff’s witnesses had traveled from Florida to testify, the plaintiff substantially complied with the statutory provisions by naming the trust and the trustee in the original caption, and there was no evidence that the person responding on behalf of the trust was a trustee, could act on behalf of the trust, or was a licensed Virginia attorney. Panone v. Jenkins Family Trust, 105 Va. Cir. 288, 2020 Va. Cir. LEXIS 91 (Orange County July 3, 2020).

§ 8.01-7. When court may add new parties to suit.

In any case in which full justice cannot be done, or the whole controversy ended, without the presence of new parties to the suit, the court, by order, may direct the clerk to issue the proper process against such new parties, and, upon the maturing of the case as to them, proceed to make such orders or decrees as would have been proper if the new parties had been made parties at the commencement of the suit.

History. Code 1950, § 8-129; 1977, c. 617.

REVISERS’ NOTE

Section 8.01-7 expands former § 8-129 to encompass actions at law as well as suits in equity. The provision gives the court power to add new parties sua sponte, while a motion is required to initiate other joinder of party provisions.

Michie’s Jurisprudence.

For related discussion, see 7A M.J. Equity, § 95.

CASE NOTES

Amendment proper. —

In an inmate’s case brought against an officer based on sexual misconduct, a trial court should have allowed an amendment to the pleadings to allow the inclusion of the Commonwealth of Virginia as a necessary party to an action filed under the Virginia Tort Claims Act, §§ 8.01-195.1 through 8.01-195.9 .Billups v. Carter, 268 Va. 701 , 604 S.E.2d 414, 2004 Va. LEXIS 139 (2004).

CIRCUIT COURT OPINIONS

Necessary parties. —

Individuals were necessary parties, and full justice could not be done without their presence, because they all had material interests in the litigation, which could be affected depending on the outcome of the plea in bar; while a CEO failed to serve the motion on the individuals, proceeding on the plea in bar without ensuring they had formal notice of the litigation and the opportunity to respond would constitute an injustice and could result in multiple litigation and inconsistent results. MartianCraft, LLC v. Richter, 98 Va. Cir. 269, 2018 Va. Cir. LEXIS 59 (Richmond Mar. 28, 2018).

Article 2. Special Provisions.

§ 8.01-8. How minors may sue.

Any minor entitled to sue may do so by his next friend. Either or both parents may sue on behalf of a minor as his next friend.

History. Code 1950, § 8-87; 1977, c. 617; 1998, c. 402.

Cross references.

As to appointment of guardian ad litem for person under a disability, see § 8.01-9 .

As to appointment of guardian ad litem in suit for sale of lands of a person under a disability, see § 8.01-73 .

Law Review.

For note discussing a state-incarcerated felon’s capacity to sue under 42 U.S.C. § 1983 in federal courts despite prohibitive state statutes, see 30 Wash. & Lee L. Rev. 329 (1973).

For an article, “Legal Issues Involving Children,” see 32 U. Rich. L. Rev. 1345 (1998).

For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Assault and Battery, § 21.

CASE NOTES

Analysis

I.Decisions Under Current Law.

Suit on behalf of child could not be brought by parents in own name. —

Trial court properly dismissed a suit, as violative of § 8.01-8 , brought by a minor child’s parents in their own name as next friend of the child. Herndon v. St. Mary's Hosp., Inc., 266 Va. 472 , 587 S.E.2d 567, 2003 Va. LEXIS 94 (2003).

Parents may initiate action as child’s next friend. —

First sentence of § 8.01-8 authorizes a minor child to bring an action by his next friend, and the second sentence, when considered together with the first sentence, does not plainly manifest an intent to authorize parents to bring a child’s action in the parents’ own name, but merely specifies that either or both parents may act as next friend on behalf of their minor child; thus, the 1998 amendment to § 8.01-8 reflects the general assembly’s intent to clarify the fact that either or both parents may initiate a single action as their child’s next friend. Herndon v. St. Mary's Hosp., Inc., 266 Va. 472 , 587 S.E.2d 567, 2003 Va. LEXIS 94 (2003).

Mother of a handicapped child had standing to bring a claim, which challenged the handicap accessibility in the City of Richmond, in both an independent and representational capacity under the Americans with Disabilities Act, 42 U.S.C.S. § 12131 et seq., had representational standing under § 504 of the Rehabilitation Act, 29 U.S.C.S. § 794 and the Virginians with Disabilities Act of 1985, in that she was suing as her minor child’s next friend, and alleged an injury in fact in that she sought prospective relief that would enable her and her son to attend events at schools city-wide in addition to those listed in the complaint. Bacon v. City of Richmond, 386 F. Supp. 2d 700, 2005 U.S. Dist. LEXIS 21376 (E.D. Va. 2005).

Self-representing parents may not litigate their minor children’s claims. —

Non-attorney parents generally may not litigate the claims of their minor children in federal court. Myers v. Loudoun County Pub. Schs, 418 F.3d 395, 2005 U.S. App. LEXIS 16722 (4th Cir. 2005).

Father, a non-attorney, was not authorized to litigate pro se the claim of his minor children that subsection C of § 22.1-202, which provided for daily, voluntary recitation of the Pledge of Allegiance in Virginia’s public schools, violated the Establishment Clause. Myers v. Loudoun County Pub. Schs, 418 F.3d 395, 2005 U.S. App. LEXIS 16722 (4th Cir. 2005).

II.Decisions Under Prior Law.

Editor’s note.

Next friend need not be formally appointed. —

Any person may bring a suit in the name of an infant as its next friend and ordinarily the court will recognize him as such next friend, and take cognizance of the case as properly brought and prosecuted. If it appears to the court that the suit is not for the benefit of the infant or that the person named as next friend is not a suitable person for the purpose, the court may dismiss the suit without prejudice, or assign another person to prosecute it as next friend of the infant, and the court may, if it think fit, direct an inquiry by a commissioner to ascertain whether the person prosecuting it as next friend is a fit person for the purpose. Wilson v. Smith, 63 Va. (22 Gratt.) 493, 1872 Va. LEXIS 41 (1872).

According to the procedure in this jurisdiction, suits may be commenced and prosecuted by the next friend of an infant without previous appointment or formal order of admission. In such case the admission and approval by the court of the person acting as next friend is implied unless expressly disallowed. The courts are disposed to regard convenience and substance rather than form in mere matters of procedure. Jackson v. Counts, 106 Va. 7 , 54 S.E. 870 , 1906 Va. LEXIS 99 (1906).

The practice in Virginia is for such suits to be instituted in the name of the infant by one of the parents or other near relative without formal appointment. If the suit or action proceeds without objection, it is a recognition by the court that the infant is a party to the proceeding. Womble v. Gunter, 198 Va. 522 , 95 S.E.2d 213, 1956 Va. LEXIS 238 (1956) (commented on in 14 Wash. & Lee L. Rev. 338 (1957)).

The suit of an infant by his next friend must be brought in the infant’s name and not in that of the next friend, that is, the infant and not the next friend must be the real party plaintiff. And a suit in the name of the next friend “on behalf of the infant” cannot be maintained. Kirby v. Gilliam, 182 Va. 111 , 28 S.E.2d 40, 1943 Va. LEXIS 138 (1943).

This section requires that the suit be brought in the infant’s name and not that of the next friend when the infant is the real party plaintiff. Bolen v. Bolen, 409 F. Supp. 1371, 1976 U.S. Dist. LEXIS 17130 (W.D. Va. 1976).

And the consent of the infant is not necessary to authorize a suit on his behalf by a next friend, but any person may file a bill on behalf of an infant and even against the latter’s will. Upon objection, the court will order an inquiry by a master to ascertain whether the suit is for the infant’s benefit and whether some other person is best entitled to act as prochein ami, and will make such order as seems best for the interests of the infant. Kirby v. Gilliam, 182 Va. 111 , 28 S.E.2d 40, 1943 Va. LEXIS 138 (1943).

Consent of the infant was not necessary for a suit to be maintained in her name by her next friend. Womble v. Gunter, 198 Va. 522 , 95 S.E.2d 213, 1956 Va. LEXIS 238 (1956) (commented on in 14 Wash. & Lee L. Rev. 338 (1957)).

But infant must be real party plaintiff. —

The mother of an infant consort cannot maintain in her own name an action to annul the marriage of her daughter. Kirby v. Gilliam, 182 Va. 111 , 28 S.E.2d 40, 1943 Va. LEXIS 138 (1943).

Infant is bound by suit. —

An infant, having sued under this section, is bound to the same degree, and the same extent as an adult. Gimbert v. Norfolk S.R.R., 152 Va. 684 , 148 S.E. 680 , 1929 Va. LEXIS 201 (1929).

In the absence of fraud an infant is as much bound by a decree or judgment of a court as is an adult. The law recognizes no distinction between a decree against an infant and a decree against an adult, and, therefore, an infant can impeach it only upon grounds which would invalidate it in case of an adult party. Womble v. Gunter, 198 Va. 522 , 95 S.E.2d 213, 1956 Va. LEXIS 238 (1956) (commented on in 14 Wash. & Lee L. Rev. 338 (1957)).

But decree may be vacated if section not followed. —

In a suit by an infant seeking to annul her marriage, relief was denied because of the insufficiency of the evidence. The cause was instituted and prosecuted to final decree in the name of the infant instead of by her next friend, in spite of the provisions of this section. Because the failure to institute and prosecute the suit by a next friend cast substantial doubt on the validity of the decree, the Supreme Court remanded the cause with direction that the decree be vacated and the cause proceeded in by the next friend of the infant complainant. Kilbourne v. Kilbourne, 165 Va. 87 , 181 S.E. 351 , 1935 Va. LEXIS 275 (1935).

And next friend cannot waive infant’s rights. —

It is not competent for the next friend of infant plaintiffs to waive the rights of the latter, and it is error to decree on such waiver. Hite v. Hite, 23 Va. (2 Rand.) 409, 1824 Va. LEXIS 16 (1824); Armstrong's Heirs v. Walkup, 50 Va. (9 Gratt.) 372, 1852 Va. LEXIS 21 (1852).

Dismissal without prejudice. —

If a suit be brought in the name of the next friend and not in the infant’s name, the suit must be dismissed without prejudice to the right of the next friend to refile the suit in the name of the infant. Bolen v. Bolen, 409 F. Supp. 1371, 1976 U.S. Dist. LEXIS 17130 (W.D. Va. 1976).

A child can maintain a suit for negligently inflicted prenatal injuries. Bolen v. Bolen, 409 F. Supp. 1371, 1976 U.S. Dist. LEXIS 17130 (W.D. Va. 1976).

Next friend should bring suit to annul marriage. —

In this State an infant wife cannot bring suit in her own name to annul her marriage, but under this section must sue for this purpose by her next friend. Kirby v. Gilliam, 182 Va. 111 , 28 S.E.2d 40, 1943 Va. LEXIS 138 (1943).

Suits for personal injuries. —

An action for an assault and battery committed upon an infant, ought not to be brought in the name of the guardian of such infant, but in the name of such infant by his or her next friend. Stewart v. Crabbin's Guardian, 20 Va. (6 Munf) 280, 1819 Va. LEXIS 6 (1819).

Infants held bound by no contest provision in will. —

Infant beneficiaries who joined in the contest of a will by their parents as next friends were bound by a no contest provision in the will equally with the adult contestants, where it was the testator’s clearly expressed intention to restrain all beneficiaries from a contest. Womble v. Gunter, 198 Va. 522 , 95 S.E.2d 213, 1956 Va. LEXIS 238 (1956) (commented on in 14 Wash. & Lee L. Rev. 338 (1957)).

Suits by guardian for protection of ward’s property. —

An infant should sue by his next friend; not by his guardian. The rule of this section, of course, is not applicable when it is incumbent on the guardian to sue for the protection of his ward’s property, nor is it applicable when it would be in derogation of the statutory right of the guardian to institute a suit. Garland v. Norfolk Nat'l Bank of Commerce & Trusts, 156 Va. 653 , 158 S.E. 888 , 1931 Va. LEXIS 220 (1931).

Suits against guardian of infant. —

A second guardian of an infant has no authority to file a bill in his own name, against a former guardian, for an account of his transaction in relation to the ward’s estate. An infant may by his next friend, call the acting guardian, or any preceding guardian, to account by a bill in chancery. But the bill must be in his own name by his next friend. Lemon v. Hansbarger, 47 Va. (6 Gratt.) 301, 1849 Va. LEXIS 47 (1849).

Next friend as a witness. —

One who is made next friend to an infant without his knowledge or consent is not disqualified from being a witness. Burwell v. Corbin, 22 Va. (1 Rand.) 131, 1822 Va. LEXIS 16 (1822).

Removal of next friend. —

The next friend is to be removed if he is treacherous or negligent of the interests of the infant. Burwell v. Corbin, 22 Va. (1 Rand.) 131, 1822 Va. LEXIS 16 (1822).

Cost of suit. —

The prochein ami is liable for the costs of the suit. Burwell v. Corbin, 22 Va. (1 Rand.) 131, 1822 Va. LEXIS 16 (1822).

CIRCUIT COURT OPINIONS

Parents may initiate action as child’s next friend. —

For purposes of the parents’ pregnancy-related medical malpractice lawsuit, because the doctor’s allegedly tortious conduct occurred while the parents’ son was still in utero, the court sustained defendants’ pleas in bar as the parents’ claims for their son’s medical expenses were derivative of a claim by the son for personal injuries, and the facts affirmatively showed no claim for personal injuries on behalf of the son currently pending; furthermore, the son’s personal injury claim had to be brought in his name by his next friend under this statute, and could not be subsumed into a claim for personal injuries brought by the parents. Brown v. Tashman, 100 Va. Cir. 311, 2018 Va. Cir. LEXIS 620 (Fairfax County Nov. 9, 2018).

Next friend could appeal despite appointment of guardian ad litem. —

Default rule under the law was that any person, including the next friend in this case, could have noted petitioner’s appeal of the juvenile court’s order on his behalf; case law establishes that a next friend and guardian ad litem both have authority to prosecute an appeal, and thus in this case, the next friend could properly note petitioner’s appeal notwithstanding that a guardian ad litem had been appointed. The court did not lack jurisdiction over the appeal. Burns-Freeman v. Freeman, 107 Va. Cir. 96, 2021 Va. Cir. LEXIS 5 (Loudoun County Jan. 5, 2021).

OPINIONS OF THE ATTORNEY GENERAL

Petition by unemancipated minors for protective orders. —

A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, (01/21/11).

§ 8.01-9. Guardian ad litem for persons under disability; when guardian ad litem need not be appointed for person under disability.

  1. A suit wherein a person under a disability is a party defendant shall not be stayed because of such disability, but the court in which the suit is pending, or the clerk thereof, shall appoint a discreet and competent attorney-at-law as guardian ad litem to such defendant, whether the defendant has been served with process or not. If no such attorney is found willing to act, the court shall appoint some other discreet and proper person as guardian ad litem. Any guardian ad litem so appointed shall not be liable for costs. Every guardian ad litem shall faithfully represent the estate or other interest of the person under a disability for whom he is appointed, and it shall be the duty of the court to see that the interest of the defendant is so represented and protected. Whenever the court is of the opinion that the interest of the defendant so requires, it shall remove any guardian ad litem and appoint another in his stead. When, in any case, the court is satisfied that the guardian ad litem has rendered substantial service in representing the interest of the person under a disability, it may allow the guardian reasonable compensation therefor, and his actual expenses, if any, to be paid out of the estate of the defendant. However, if the defendant’s estate is inadequate for the purpose of paying compensation and expenses, all, or any part thereof, may be taxed as costs in the proceeding. In a civil action against an incarcerated felon for damages arising out of a criminal act, the compensation and expenses of the guardian ad litem shall be paid by the Commonwealth out of the state treasury from the appropriation for criminal charges. If judgment is against the incarcerated felon, the amount allowed by the court to the guardian ad litem shall be taxed against the incarcerated felon as part of the costs of the proceeding, and if collected, the same shall be paid to the Commonwealth. By order of the court, in a civil action for divorce from an incarcerated felon, the compensation and expenses of the guardian ad litem shall be paid by the Commonwealth out of the state treasury from the appropriation for criminal charges if the crime (i) for which the felon is incarcerated occurred after the date of the marriage for which the divorce is sought, (ii) for which the felon is incarcerated was committed against the felon’s spouse, child, or stepchild and involved physical injury, sexual assault, or sexual abuse, and (iii) resulted in incarceration subsequent to conviction and the felon was sentenced to confinement for more than one year. The amount allowed by the court to the guardian ad litem shall be taxed against the incarcerated felon as part of the costs of the proceeding, and if collected, the same shall be paid to the Commonwealth.
  2. Notwithstanding the provisions of subsection A or the provisions of any other law to the contrary, in any suit wherein a person under a disability is a party and is represented by an attorney-at-law duly licensed to practice in this Commonwealth, who shall have entered of record an appearance for such person, no guardian ad litem need be appointed for such person unless the court determines that the interests of justice require such appointment; or unless a statute applicable to such suit expressly requires that the person under a disability be represented by a guardian ad litem. The court may, in its discretion, appoint the attorney of record for the person under a disability as his guardian ad litem, in which event the attorney shall perform all the duties and functions of guardian ad litem.Any judgment or decree rendered by any court against a person under a disability without a guardian ad litem, but in compliance with the provisions of this subsection, shall be as valid as if the guardian ad litem had been appointed.

History. Code 1950, §§ 8-88, 8-88.1; 1972, c. 720; 1977, c. 617; 1996, c. 887; 1999, cc. 945, 955, 987; 2001, c. 127; 2003, c. 563; 2021, Sp. Sess. I, c. 463.

REVISERS’ NOTE

Section 8.01-9 combines former §§ 8-88 and 8-88.1.

Former § 8-88 has been expanded to include all persons under a disability (as defined in § 8.01-2 ) whenever such persons are party defendants to a suit. Otherwise this subsection is substantially the same as former § 8-88 except that unnecessary references to the judge in vacation have been eliminated, and it has been made clear that an attorney appointed as guardian ad litem is not liable for costs. Compensation and expenses of the guardian ad litem may be taxed as costs in the proceeding if the estate of the person under a disability is inadequate.

Two principal changes have been made to former § 8-88.1. First, the provision permitting the court to dispense with the appointment of a guardian ad litem has been amended; if a statute requires in a particular suit that the guardian ad litem file an answer, see e.g. § 8.01-73 , then one must be appointed under this section. Where a guardian ad litem is to be appointed, the second change permits the court to appoint the attorney of record for the person under a disability. The attorney must be licensed to practice in Virginia.

Former § 8-89 (When fact of defendant’s nonresidence to be returned, and suit abated) has been deleted as obsolete and unnecessary.

Cross references.

As to guardian ad litem in suits for sale or encumbrance of lands of persons under certain disabilities, see §§ 8.01-73 , 8.01-75 .

For special provisions as to guardians ad litem in certain proceedings, see § 8.01-261 (venue to recover dower and curtesy of spouse under disability);

§ 8.01-297 (suit against convict); § 8.01-394 (lost records); § 21-310 (drainage districts).

As to procedure in probate proceedings, see § 64.2-449 .

As to pleadings in proceedings involving trusts, see § 64.2-713 .

As to powers of guardian over a minor’s estate, see § 64.2-1805 .

The 1999 amendments.

The 1999 amendments by cc. 945 and 987, which are identical, inserted “former” preceding “§ 46.2-351.2” and preceding “§ 46.2-352” in the sixth sentence of subsection A.

The 1999 amendments by c. 955, in subsection A, inserted “the” preceding “opinion that” in the fifth sentence and added the last two sentences.

The 2001 amendments.

The 2001 amendment by c. 127, in subsection B, deleted “defendant” following “a party,” and substituted “that the person under a disability be represented” for “an answer to be filed.”

The 2003 amendments.

The 2003 amendment by c. 563 inserted the last two sentences in subsection A.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 463, effective July 1, 2021, deleted “or, in the case of proceedings to adjudicate a person under a disability as an habitual offender pursuant to former § 46.2-351.2 or former § 46.2-352, shall be paid by the Commonwealth out of the state treasury from the appropriation for criminal charges” at the end of the seventh sentence in subsection A.

Law Review.

For survey of Virginia law on practice and pleading in the year 1971-1972, see 58 Va. L. Rev. 1309 (1972).

For note discussing a state-incarcerated felon’s capacity to sue under 42 U.S.C. § 1983 in federal courts despite prohibitive state statutes, see 30 Wash. & Lee L. Rev. 329 (1973).

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Infants, § 37.

CASE NOTES

Analysis

I.Decisions Under Current Law.

Legislative intent. —

The General Assembly did not intend to require a circuit court to appoint a guardian ad item whenever the court issues a subpoena to compel a juvenile’s testimony or where the circuit court initiates criminal contempt proceedings against the juvenile where juvenile is represented by counsel. Wilson v. Commonwealth, 23 Va. App. 318, 477 S.E.2d 7, 1996 Va. App. LEXIS 651 (1996).

Statute irrelevant to suits by persons under disabilities. —

This section recognizes that persons under disabilities may be sued in their own names and is concerned with the protection of such persons by appointment of a guardian ad litem but nothing in the statute provides any basis for concluding that, in the converse situation, a suit in his own name by a person under a disability who has a duly appointed fiduciary is valid. Cook v. Radford Community Hosp., Inc., 260 Va. 443 , 536 S.E.2d 906, 2000 Va. LEXIS 133 (2000).

Section not applicable to criminal trial. —

In trial for fraudulently obtaining an advance of payment for construction work to be performed in the future, in violation of § 18.2-200.1 , defendant’s contention that he was a “person under a disability” as defined by subdivision 6 a of § 8.01-2 , and as such, was entitled to an appointment of a guardian ad litem pursuant to § 8.01-9 , or a committee, pursuant to § 53.1-223, was without merit, as defendant introduced no evidence to show that he was in jail on a felony charge, and furthermore, these sections apply only to civil proceedings. Holsapple v. Commonwealth, 38 Va. App. 480, 566 S.E.2d 210, 2002 Va. App. LEXIS 376 (2002), aff'd, 39 Va. App. 522, 574 S.E.2d 756, 2003 Va. App. LEXIS 76 (2003).

In a construction fraud proceeding, defendant was not entitled to appointment of a guardian ad litem pursuant to this section or a committee, pursuant to § 53.1-223 once the victim forwarded the notice requesting the return of construction funds she advanced to defendant, who was in prison; defendant did not shown he was imprisoned for a felony and could not be a person under a disability, and neither this section nor § 53.1-223 applies to criminal proceedings. Holsapple v. Commonwealth, 39 Va. App. 522, 574 S.E.2d 756, 2003 Va. App. LEXIS 76 , aff'd, 266 Va. 593 , 587 S.E.2d 561, 2003 Va. LEXIS 96 (2003).

Best interest of child is paramount concern. —

The strong public policy of this Commonwealth posits that the paramount concern where children are concerned is their best interests and this public policy would be thwarted if a child were bound by a paternity determination in which the child’s independent rights and interests were not adequately protected. Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 376 S.E.2d 787, 5 Va. Law Rep. 1641, 1989 Va. App. LEXIS 11 (1989).

A guardian ad litem has standing to file a petition for termination of residual parental rights. Stanley v. Fairfax, 242 Va. 60 , 405 S.E.2d 621, 7 Va. Law Rep. 2823, 1991 Va. LEXIS 106 (1991).

Appointment criteria in custody disputes. —

While a guardian ad litem appointment is not required in every contested custody case, a finding that the appointment of a guardian ad litem is necessary and would be in the child’s best interest is an essential prerequisite. Verrocchio v. Verrocchio, 16 Va. App. 314, 429 S.E.2d 482, 9 Va. Law Rep. 1300, 1993 Va. App. LEXIS 99 (1993).

Power to file petition seeking termination of residual parental rights implicit. —

No specific statutory provision either grants or denies the guardian ad litem the power to file a petition seeking the termination of residual parental rights, but such action is implicit in the general charge of authority given the guardian ad litem in this section to represent faithfully the interests of the individual under disability for whom he or she is appointed. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199, 7 Va. Law Rep. 59, 1990 Va. App. LEXIS 129 (1990), aff'd, 242 Va. 60 , 405 S.E.2d 621, 7 Va. Law Rep. 2823, 1991 Va. LEXIS 106 (1991).

Appointment permissible in custody hearing ancillary to divorce proceeding. —

Circuit courts conducting a custody hearing as part of divorce proceedings are not constrained by the absence of a specific provision within this section providing for appointment of a guardian ad litem. Accordingly, in those contested custody cases where the trial judge finds that the best interests of the child are not adequately protected by the parties, appointment of a guardian ad litem for the child is appropriate. Verrocchio v. Verrocchio, 16 Va. App. 314, 429 S.E.2d 482, 9 Va. Law Rep. 1300, 1993 Va. App. LEXIS 99 (1993).

Failure to appoint guardian ad litem for alcoholic does not render judgment void. —

Where defendant contended that at the time of his habitual offender adjudication he was an alcoholic and a person under disability, the court’s failure to appoint a guardian ad litem to represent him did not render the adjudication void and subject to collateral attack. Absent a showing of actual incapacity, a judgment against an alcoholic is voidable only, not subject to collateral attack. The record supported the trial court’s determination that, at the time of his habitual offender adjudication, defendant’s condition did not require the appointment of a guardian ad litem. Eagleston v. Commonwealth, 18 Va. App. 469, 445 S.E.2d 161, 10 Va. Law Rep. 1559, 1994 Va. App. LEXIS 363 (1994).

Failure to appoint guardian ad litem for an in incarcerated person does not render judgment void. —

Where defendant’s disability, incarceration for a felony, arose under subdivision 6 a of § 8.01-2 . and defendant’s status as an incarcerated felon was a material fact clearly known by a court that adjudicated him a habitual offender, defendant was not entitled to have a guardian ad litem appointed and could not collaterally attack the adjudication in a second court. Lowe v. Commonwealth, 2003 Va. App. LEXIS 6 (Va. Ct. App. Jan. 14, 2003).

Guardian ad litem did not satisfy committee requirement. —

Where a trial court awarded a wife real estate parcels in her divorce case against her prisoner husband, it was required that a committee be appointed by the trial court for the husband before that property determination; the appointment of a guardian ad litem representing the husband did not satisfy the committee requirement. Grethen v. Grethen, 2005 Va. App. LEXIS 68 (Va. Ct. App. Feb. 15, 2005).

Actual selection left solely in hands of court. —

The actual selection of a guardian ad litem, is left solely in the hands of the court. The court is not bound by the defendant’s demands or requests. Ruffin v. Commonwealth, 10 Va. App. 488, 393 S.E.2d 425, 6 Va. Law Rep. 2742, 1990 Va. App. LEXIS 116 (1990), overruled, Pigg v. Commonwealth, 17 Va. App. 756, 441 S.E.2d 216, 10 Va. Law Rep. 921, 1994 Va. App. LEXIS 84 (1994).

Limited fact-finding role. —

Under Virginia law, the role of a guardian ad litem appointed under subsection A is to investigate thoroughly the facts and carefully examine the facts surrounding the case. The recommendation of infant’s court-appointed guardian ad litem was thus irrelevant to the disposition of the case as it was inconsistent with the limited role of the guardian as an independent fact finder and not a surrogate decision maker when family members are involved. In re Baby K, 832 F. Supp. 1022, 1993 U.S. Dist. LEXIS 12574 (E.D. Va. 1993), aff'd, 16 F.3d 590, 1994 U.S. App. LEXIS 2215 (4th Cir. 1994).

Weight given guardian’s custody recommendation. —

The recommendation of the guardian ad litem in instant child custody case, while not binding or controlling, should not be disregarded. The duty of a guardian ad litem in a child custody dispute is to see that the interest of the child is represented and protected. The child had no other independent participant in the proceeding, aside from the trial court, to protect his interests. Thus, this diligent guardian ad litem’s recommendation that custody be awarded to the grandmother was entitled to be considered by the court in reaching a decision on the issue. Bottoms v. Bottoms, 249 Va. 410 , 457 S.E.2d 102, 1995 Va. LEXIS 43 (1995).

Guardian must, at minimum, discuss matter with person under disability. —

A person who has been appointed guardian ad litem must, if possible, at a minimum discuss the matter with the person under disability. Ruffin v. Commonwealth, 10 Va. App. 488, 393 S.E.2d 425, 6 Va. Law Rep. 2742, 1990 Va. App. LEXIS 116 (1990), overruled, Pigg v. Commonwealth, 17 Va. App. 756, 441 S.E.2d 216, 10 Va. Law Rep. 921, 1994 Va. App. LEXIS 84 (1994).

Duty to make bona fide examination of facts. —

A guardian has a duty to make a bona fide examination of the facts in order to properly represent the person under a disability. Ruffin v. Commonwealth, 10 Va. App. 488, 393 S.E.2d 425, 6 Va. Law Rep. 2742, 1990 Va. App. LEXIS 116 (1990), overruled, Pigg v. Commonwealth, 17 Va. App. 756, 441 S.E.2d 216, 10 Va. Law Rep. 921, 1994 Va. App. LEXIS 84 (1994).

Displeasure with guardian’s services. —

A guardian ad litem has no duty to report to the court every instance in which a client expresses displeasure with his services. In the event that a defendant is unhappy with his guardian ad litem, it is his burden to show that the guardian is unfit to fulfill satisfactorily his obligations. Ruffin v. Commonwealth, 10 Va. App. 488, 393 S.E.2d 425, 6 Va. Law Rep. 2742, 1990 Va. App. LEXIS 116 (1990), overruled, Pigg v. Commonwealth, 17 Va. App. 756, 441 S.E.2d 216, 10 Va. Law Rep. 921, 1994 Va. App. LEXIS 84 (1994).

Discharge of guardian. —

In a parental rights termination case, the trial court was entitled to give a father’s request to discharge his guardian ad litem or to require him to withdraw as counsel whatever weight it deemed proper, and proceed at its discretion; the trial court was not bound by the father’s demand or request. Miller v. Page County Dep't of Soc. Servs., 2006 Va. App. LEXIS 25 (Va. Ct. App. Jan. 24, 2006).

Motion to withdraw as counsel of inmate denied. —

In a civil action for securities fraud against an inmate, the district court denied counsels’ motions to withdraw because they failed to make the requisite showing under Fed. R. Civ. P. 17(b) and §§ 8.01-9 and 53.1-223 since the inmate did not waive his right to assistance and mere nonpayment of fees was insufficient to justify the withdrawals. United States SEC v. Woodard, No. 2:13cv16, 2014 U.S. Dist. LEXIS 35417 (E.D. Va. Feb. 19, 2014).

Appointment of guardian ad litem resulting in conflict of interest. —

Trial court abused its discretion under §§ 16.1-266 and 8.01-9 in appointing counsel who was hired by a parent to act as the child’s guardian ad litem in a parentage action as a conflict of interest was created. Breit v. Mason, 59 Va. App. 322, 718 S.E.2d 482, 2011 Va. App. LEXIS 414 (2011), aff'd, 285 Va. 163 , 736 S.E.2d 711, 2013 Va. LEXIS 4 (2013).

In proceedings involving custody of child of unwed minor, guardian ad litem for the unknown father had standing to appeal the entrustment agreement decision by the juvenile and domestic relations district court. Norfolk Div. of Social Servs. v. Unknown Father, 2 Va. App. 420, 345 S.E.2d 533, 1986 Va. App. LEXIS 289 (1986).

Habitual offender adjudication not subject to collateral attack. —

Because defendant failed to prove that his alcoholism rendered him incapable of defending his interest, the failure to appoint a guardian ad litem did not create a jurisdictional defect, consequently, the habitual offender adjudication was not subject to a collateral attack on the grounds that a guardian ad litem should have been appointed. Hall v. Commonwealth, No. 0347-92-3 (Ct. of Appeals May 17, 1994).

Necessity of guardian ad litem appointment. —

By stipulating that defendant was an alcoholic at the time of his habitual offender hearing, the Commonwealth placed defendant within the class of persons entitled to the appointment of a guardian ad litem, if not otherwise represented by counsel, during an habitual offender adjudication. England v. Commonwealth, 18 Va. App. 121, 442 S.E.2d 402, 10 Va. Law Rep. 1102, 1994 Va. App. LEXIS 186 (1994).

Trial court did not abuse its discretion in ordering a mother to pay one-half of a guardian ad litem’s fee, where the evidence presented demonstrated that the guardian was appointed to protect the interests of the children and favorably addressed an issue related to the mother’s successful treatment for depression. Leake v. Leake, 2004 Va. App. LEXIS 491 (Va. Ct. App. Oct. 12, 2004).

Appointment of guardian ad litem not required. —

When a grandmother appealed the denial of her petition for visitation with her granddaughter, and her incarcerated son joined in her appeal, § 8.01-9 and subsection D of § 16.1-266 [now subsection E of § 16.1-266 ] did not require the appointment of a guardian ad litem for the son because he was not “a party defendant” to the appeal, and the case did not involve an entrustment agreement, a custody dispute, a termination of the father’s parental rights, or any of the actions described in § 16.1-266 . Harris v. Boxler, 2003 Va. App. LEXIS 461 (Va. Ct. App. Sept. 2, 2003).

Guardian ad litem provisions of Virginia law did not require dismissal of defendants, who were served with a summons and a copy of a civil complaint after their convictions but before they began serving their sentences, because the provisions were not concerned with the capacity of a party, but only with the protection of a person under a disability when sued. Particularly since the case was brought under federal-question subject matter jurisdiction, the guardian ad litem provisions of Virginia law were not binding on the court. Buchanan County v. Blankenship, 406 F. Supp. 2d 642, 2005 U.S. Dist. LEXIS 35012 (W.D. Va. 2005).

Father’s appeals were dismissed because the circuit court had vacated the order memorializing its child support ruling and properly denied the father’s request for a guardian ad litem where he was not a “party defendant” in the case — he filed the action in court, moving to amend his child support obligation — and failed to meet his burden of proving that his inability to pay was not a result of his own voluntary act. Lowe v. Commonwealth, Dep't of Soc. Servs., Div. of Child Support Enforcement ex rel. Smith, 2015 Va. App. LEXIS 38 (Va. Ct. App. Feb. 10, 2015).

In a termination of parental rights case in which the mother was a 16-year-old minor, the trial court did not err by dismissing the mother’s appeal because, contrary to mother’s assertions, the trial court was not required to appoint a guardian ad litem for the mother as she was represented by counsel; it was within the trial court’s discretion whether to appoint a guardian ad litem; and it was within the trial court’s discretion to appoint an attorney and a guardian ad litem to represent a parent involved in an abuse or neglect case or a termination of parental rights matter. Scott v. City of Petersburg Dep't of Soc. Servs., 2017 Va. App. LEXIS 144 (Va. Ct. App. June 6, 2017).

Appeal lacked merit. —

Because the record did not contain copies of the protective orders at issue and the trial court’s orders from a husband’s divorce, because the husband was not a “party defendant” entitled to appointment of a guardian ad litem under § 8.01-9 , and because his opening brief did not comply with Va. Sup. Ct. R. 5A:20(e), the appeal lacked merit. Harnois v. Commonwealth, 2011 Va. App. LEXIS 285 (Va. Ct. App. Sept. 27, 2011).

II.Decisions Under Prior Law.

Editor’s note.

Guardian ad litem must be appointed for infant. —

In every action or suit against an infant defendant, it is the duty of the court wherein the same is pending, or of the judge or clerk thereof in vacation, to appoint a guardian ad litem to represent the interest or estate of the infant. Turner v. Barraud, 102 Va. 324 , 46 S.E. 318 , 1904 Va. LEXIS 73 (1904); Kanter v. Holland, 154 Va. 120 , 152 S.E. 328 , 1930 Va. LEXIS 201 (1930).

An infant can only appear and defend by a guardian ad litem, and proceedings against him are generally fatally defective unless the record shows that such guardian was assigned him. Langston v. Bassette, 104 Va. 47 , 51 S.E. 218 , 1905 Va. LEXIS 68 (1905); Weaver v. Glenn, 104 Va. 443 , 51 S.E. 835 , 1905 Va. LEXIS 116 (1905); Kavanaugh v. Shacklett, 111 Va. 423 , 69 S.E. 335 , 1910 Va. LEXIS 63 (1910).

Or else judgment void. —

The law in Virginia is that a personal judgment rendered against an infant for whom no guardian ad litem has been appointed is void. Kanter v. Holland, 154 Va. 120 , 152 S.E. 328 , 1930 Va. LEXIS 201 (1930).

It is the settled law of this Commonwealth that a personal judgment rendered against an infant for whom it does not affirmatively appear of record that a guardian ad litem has been appointed is void. Hence, when on appeal from such a judgment it does not appear that a guardian was appointed below, the judgment obtained will have to be set aside and the action remanded for a new trial. Moses v. Akers, 203 Va. 130 , 122 S.E.2d 864, 1961 Va. LEXIS 231 (1961).

But failure is not reversible error when decree in infant’s favor. —

If it clearly appears that the decree is beneficial to the infant, failure to appoint a guardian ad litem will not be reversible error. Langston v. Bassette, 104 Va. 47 , 51 S.E. 218 , 1905 Va. LEXIS 68 (1905).

Necessity for guardian ad litem for insane person. —

It is only where there is no committee, or where there is a conflict of interest between the committee and the insane person, that it becomes necessary to appoint a guardian ad litem for the insane defendant. Hinton v. Bland, 81 Va. 588 , 1886 Va. LEXIS 126 (1886); Howard v. Landsberg's Comm., 108 Va. 161 , 60 S.E. 769 , 1908 Va. LEXIS 23 (1908).

Where the amended bill in a partition suit suggested that one of the parties was non compos mentis, and prayed for the appointment of a guardian ad litem, but the party and her husband and the appellant were all strenuously denying her insanity, and the issue was undetermined when she died, the fact that no guardian ad litem was appointed for her under this section is no ground for reversing the decree. Cottrell v. Mathews, 120 Va. 847 , 92 S.E. 808 , 1917 Va. LEXIS 165 (1917).

When insane person not a necessary party. —

A lunatic having a regular appointed committee is not a necessary party to suit concerning his estate. Howard v. Landsberg's Comm., 108 Va. 161 , 60 S.E. 769 , 1908 Va. LEXIS 23 (1908).

Appointment when infants and insane persons unknown parties. —

The preliminary report of a commissioner showed that several interested persons were infants, and the court appointed a guardian ad litem who filed his answer in that capacity, and also an answer for the infants by himself as guardian. It was alleged that this was error because the infants had not been made parties to the suit. It was held that this position was not tenable, as the infants were among the “unknown heirs” named as defendants in the amended bill in the suit and served by publication, and the action of the court was, therefore, entirely regular and proper. Goins v. Garber, 131 Va. 59 , 108 S.E. 868 , 1921 Va. LEXIS 8 (1921).

There is no legislative intent that this section should apply to § 53.1-221 et seq., pertaining to the appointment of committees for convict defendants. Dunn v. Terry, 216 Va. 234 , 217 S.E.2d 849, 1975 Va. LEXIS 274 (1975).

Appointment of committee waiverable. —

There is a significant difference between the status of an infant or insane person and that of a convict and such difference is persuasive that appointment of a committee for a convict was a procedural requirement that could be waived. Dunn v. Terry, 216 Va. 234 , 217 S.E.2d 849, 1975 Va. LEXIS 274 (1975).

Convicts are not civilly dead in Virginia. Dunn v. Terry, 216 Va. 234 , 217 S.E.2d 849, 1975 Va. LEXIS 274 (1975).

And are not legally incompetent to transact business. —

Unlike an infant or insane person, a convict was not legally incompetent to transact business either before or after his conviction in a criminal case. Dunn v. Terry, 216 Va. 234 , 217 S.E.2d 849, 1975 Va. LEXIS 274 (1975).

Appointment not presumed. —

Where the interests of infants are concerned it must affirmatively appear from the record that a guardian ad litem was duly appointed. Where the record is silent on the subject it will not be presumed. Brown v. M'Rea, 18 Va. (4 Munf) 439, 1815 Va. LEXIS 29 (1815); Catron v. Bostic, 123 Va. 355 , 96 S.E. 845 , 1918 Va. LEXIS 37 (1918).

Any court may appoint. —

It is a power incident to every court to appoint a guardian ad litem, and he may be appointed, although the infant has not been served with notice. Word v. Commonwealth, 30 Va. (3 Leigh) 743, 1827 Va. LEXIS 54 (1827); Strayer v. Long, 83 Va. 715 , 3 S.E. 372 , 1887 Va. LEXIS 115 (1887).

Guardian ad litem not required to accept appointment. —

A guardian ad litem appointed to prosecute an appeal on an infant’s behalf is not obliged to accept the appointment. A reasonable time ought therefore to be given him to consider whether he will accept and to prepare for trial. Wells v. Winfree, 16 Va. (2 Munf.) 342 (1811). But as to power of court of equity to compel acceptance, see Strayer v. Long, 83 Va. 715 , 3 S.E. 372 , 1887 Va. LEXIS 115 (1887).

Insufficient evidence of acceptance. —

Where an order appointing counsel for one of the defendants’ guardian ad litem for an infant interested in the suit, was indorsed “seen” and signed but no answer filed, it was held that this was not sufficient evidence of acceptance. Jeffries v. Jeffries, 123 Va. 147 , 96 S.E. 197 , 1918 Va. LEXIS 12 (1918).

The infant is never to be prejudiced by the act, default or admission of his guardian ad litem. Daingerfield v. Smith, 83 Va. 81 , 1 S.E. 599 , 1887 Va. LEXIS 42 (1887); Morris v. Virginia Ins. Co., 85 Va. 588 , 8 S.E. 383 , 1888 Va. LEXIS 73 (1888).

Power to consent to sale. —

Infant defendants are incompetent to consent to decree of sale, and their guardian ad litem cannot consent for them. Daingerfield v. Smith, 83 Va. 81 , 1 S.E. 599 , 1887 Va. LEXIS 42 (1887).

It is not competent for guardians of infant parties, to waive any benefit to which the infants are entitled in a decree; and it is error to decree on such consent. Hite v. Hite, 23 Va. (2 Rand.) 409, 1824 Va. LEXIS 16 (1824).

A guardian ad litem may consent, for his wards, to the removal of the suit from one circuit to another. Lemmon v. Herbert, 92 Va. 653 , 24 S.E. 249 , 1896 Va. LEXIS 27 (1896).

Presumption as to answer. —

When it appears of record that the infant defendants appeared and answered by their guardian ad litem, and that there was a general replication thereto, it will be presumed in the appellate court that the answer was regularly filed, though the answer itself is not found among the papers in the record. Smith v. Henkel, 81 Va. 524 , 1886 Va. LEXIS 121 (1886).

But record must show answer filed. —

The heirs being infants, though their guardian was a party and answered, they were entitled to be defended by a guardian ad litem, and although one was appointed for them, and there was a paper purporting to be an answer found among the papers of the cause, yet as it did not appear that it had been filed, it was error to decree the sale of the infant’s land, without an answer filed by the guardian ad litem. Ewing v. Ferguson, 74 Va. (33 Gratt.) 548, 1880 Va. LEXIS 61 (1880).

Effect of answer. —

No rule is better settled, than that an answer of an infant by guardian ad litem cannot be read against him at all, for any purpose. Bank of Alexandria v. Patton, 40 Va. (1 Rob.) 499, 1843 Va. LEXIS 6 (1843).

Fees of guardian. —

In the absence of peculiar facts, such as the creation of a fund which enures to the common benefit of all concerned, the allowance of guardian ad litem fees is regulated by this section. An estate of an infant contingent remainderman was such an estate as that contemplated by this section, and, therefore, it was error for the court to decree the payment of the guardian ad litem’s fee out of the corpus of the trust estate, and in view of the fact that the fee was based on the theory that it should be paid out of the corpus and not fall upon the infant, the infant should be given an opportunity, if so advised, to question the reasonableness of the fee finally allowed. Patterson v. Old Dominion Trust Co., 156 Va. 763 , 159 S.E. 168 , 1931 Va. LEXIS 231 (1931).

Guardian’s fee in partition proceeding held payable from proceeds of sale. —

In a partition proceeding in which a guardian ad litem, through his own efforts, had increased the amount offered for the property in question by at least $15,000, a $2,000 fee awarded to the guardian had to be paid from the proceeds of the judicial sale, rather than from the infants’ shares of the proceeds. Austin v. Dobbins, 219 Va. 930 , 252 S.E.2d 588, 1979 Va. LEXIS 192 (1979).

CIRCUIT COURT OPINIONS

Failure to appoint guardian ad litem for mentally disabled. —

Default judgment was not rendered void because of the defendant being a person under disability, as defined by § 37.1-134.6 [now incapacitated, § 37.2-1000 ] and subdivision 6 of § 8.01-2 , due to his mental disability brought on by his advancing years, and because his interests were not protected by the appointment of a guardian ad litem. Cordova v. Alper, 64 Va. Cir. 87, 2004 Va. Cir. LEXIS 36 (Fairfax County Feb. 24, 2004).

Review of the language of this section, supported the non-appointment of a guardian ad litem, as the statute allowed representation of an attorney to support the necessary assistance. Commonwealth v. Duncan, 95 Va. Cir. 547, 2008 Va. Cir. LEXIS 312 (Chesapeake Dec. 4, 2008).

Convict a proper party to a civil action. —

Defendant, who suffered under the disability of incarceration at the time of the filing of plaintiff’s action against him, was a proper party under § 8.01-9 , and the committee’s name was not required to have appeared as a party on plaintiff’s motion for judgment. Weaver v. Franklin, 2002 Va. Cir. LEXIS 273 (Newport News Sept. 18, 2002).

Qualified immunity. —

Guardian ad litem’s special plea of immunity was denied because qualified immunity would not shield the guardian ad litem from allegations that he committed intentional torts outside of, or alleged to be contrary to, his responsibilities, as alleged in the complaint. St. Martin v. McCracken, 101 Va. Cir. 257, 2019 Va. Cir. LEXIS 84 (Chesapeake Mar. 7, 2019).

Guardians ad litem are not employees of the State, but act as agents of the State; therefore, they are not entitled to judicial or absolute immunity, which would extend to all alleged conduct, but rather, guardians ad litem are entitled to a qualified immunity flowing from conduct related to their responsibilities and conduct taken to perform requirements incumbent upon them by the nature of their appointment. St. Martin v. McCracken, 101 Va. Cir. 257, 2019 Va. Cir. LEXIS 84 (Chesapeake Mar. 7, 2019).

OPINIONS OF THE ATTORNEY GENERAL

Authority of court inherent to appoint guardian ad litem. —

The Circuit Court may appoint a guardian ad litem in proceedings pending before the Virginia Workers’ Compensation Commission. See opinion of Attorney General to the Honorable Charles N. Dorsey, Judge, Twenty-third Judicial Circuit, 13-006, (4/19/13).

§ 8.01-10. Joinder of tenants in common.

Tenants in common may join or be joined as plaintiffs or defendants.

History. Code 1950, § 8-90; 1977, c. 617.

Michie’s Jurisprudence.

For related discussion, see 5A M.J. Cotenancy, § 48.

§ 8.01-11. Proceedings on writing binding deceased person.

  1. A bond, note, or other written obligation to a person or persons who, or some of whom, are dead at the time of its execution may be proceeded on in the name of the personal representative of such person, or the survivors or survivor, or of the representative of the last survivor of such persons.
  2. If one person bound either jointly or as a partner with another by a judgment, bond, note, or otherwise for the payment of a debt, or the performance or forbearance of an act, or for any other thing, die in the lifetime of such other, the representative of the decedent may be charged in the same manner as the decedent might have been charged, if those bound jointly or as partners, had been bound severally as well as jointly, otherwise than as partners.

History. Code 1950, §§ 8-92, 8-93; 1977, c. 617.

REVISERS’ NOTE

Section 8.01-11 combines former §§ 8-92 and 8-93 without substantive change.

Former § 8-91 (Suing in the names of persons who are dead) has been deleted as obsolete. Cf. § 55-22.

Cross references.

As to effect of death after verdict, see §§ 8.01-20 , 8.01-21 .

As to effect of death during pendency of suit, see § 8.01-22 .

As to validity of bond, note or other writing payable to deceased person, see § 11-9 .

As to compromise as affecting liability, see §§ 11-10 , 11-11 .

As to right of contribution, see § 11-13 .

As to substitution of parties, see Rule 3:17.

Michie’s Jurisprudence.

For related discussion, see 3A M.J. Bonds, §§ 13, 22.

CASE NOTES

Editor’s note.

Bond payable to administrator. —

An administrator may declare in the debet and detinet on a bond executed to himself as such, and his executor or administrator has the right to bring an action upon it. Bowden v. Taggart, 17 Va. (3 Munf) 513, 1813 Va. LEXIS 7 (1813).

Where an administrator is one of the obligors in a bond for the payment of a sum of money to the decedent he cannot maintain an action against his co-obligors to enforce the payment of the money. Rodes v. Rodes, 65 Va. (24 Gratt.) 256, 1874 Va. LEXIS 8 (1874).

Where executor died before forthcoming bond taken. —

An executor recovered judgment against a debtor of his testator, and sued out execution thereon. Before the execution was delivered to the sheriff, the executor died. The execution being then delivered to the sheriff, he levied it on property of defendant, and took a forthcoming bond payable to the executor in his official capacity. It was held that the execution was properly levied, though the executor was dead before it was delivered, and the forthcoming bond was rightly taken to the executor in his official capacity, and was good. Thereupon, a motion for award of execution on the forthcoming bond was made by the executor of aforesaid execution. It was held that the forthcoming bond belonged to the original testator’s estate, and the second executor was entitled to the motion, and to award of execution on the bond, as the representative of the original testator, not as the representative of the first executor. Turnbull v. Clairborne, 30 Va. (3 Leigh) 392, 1831 Va. LEXIS 59 (1831).

Contribution and subrogation between partners not affected. —

This section does not affect the rules as to contribution between partners and subrogation of a partner to the rights of partnership creditors whose debts he has paid. Sands v. Durham, 99 Va. 263 , 38 S.E. 145 , 1901 Va. LEXIS 38 (1901).

Order of priority as to partners. —

The social assets are applicable first to the social debts, and if insufficient, the social creditors come in as general creditors pari passu, with separate creditors of the same class upon the separate estate of the deceased partner. This principle has the sanction of the deliberate and unanimous decision of this court in Ashby v. Porter, 67 Va. (26 Gratt.) 455, 465 (1875), and an implicit legislative adoption of this section taken word for word, from section 13, chapter 144, Code of 1849, with the construction which it had received by this court, and that construction has been followed and reaffirmed by the court in the case of Robinson v. Allen, 85 Va. 721 , 8 S.E. 835 (1889); Pettyjohn v. Woodruff, 86 Va. 478 , 10 S.E. 715 , 1890 Va. LEXIS 7 (1890).

Section does not affect marshaling of assets. —

This section does not change or affect the order in which the assets of the decedent are to be applied in the payment of debts as prescribed by § 64.1-157 [now § 64.2-528 ]. Robinson v. Allen, 85 Va. 721 , 8 S.E. 835 , 1889 Va. LEXIS 85 (1889).

Nor principle as to loss of remedy upon grounds not personal. —

The statute in relation to joint obligations, though it gives an action against the personal representative of a deceased joint obligor, does not affect the principle that the defeat of the remedy against one joint obligor upon a ground not personal to himself, defeats it as to all obligors. Brown v. Johnson, 54 Va. (13 Gratt.) 644, 1857 Va. LEXIS 25 (1857).

Pendency of two suits. —

Where two suits having same object are pending, a decree in one for account, suspends the other. A suit to administer a deceased partner’s separate property for his separate creditors, and a suit to administer partnership property for the partnership creditors, not having the same object, this rule does not apply. Robinson v. Allen, 85 Va. 721 , 8 S.E. 835 , 1889 Va. LEXIS 85 (1889).

§ 8.01-12. Suit by beneficial owner when legal title in another.

When the legal title to any claim or chose in action, for the enforcement of the collection of which a court of equity has jurisdiction, is in one person and the beneficial equitable title thereto is in another, the latter may either maintain a suit in the name of the holder of the legal title for his use and benefit or in his own name to enforce collection of the same. In either case the beneficial equitable owner shall be deemed the real plaintiff and shall be liable for costs.

History. Code 1950, § 8-93.1; 1977, c. 617.

Cross references.

As to liability for costs where suit is brought by one person for the benefit of another, see § 17.1-603 .

As to when a person not a party may take or sue under instrument, see § 55.1-119 .

Law Review.

For survey of Virginia law on practice and pleading for the year 1974-1975, see 61 Va. L. Rev. 1799 (1975).

Michie’s Jurisprudence.

For related discussion, see 4B M.J. Corporations, § 276.

CASE NOTES

Analysis

I.Decisions Under Prior Law.

Editor’s note.

Equity rule modified. —

The equitable rule that a suit in equity must invariably be brought in the name of the real party in interest and not in the name of another has been modified and changed in Virginia by this section. Stuart Court Realty Corp. v. Gillespie, 150 Va. 515 , 143 S.E. 741 , 1928 Va. LEXIS 332 (1928).

Suit by assignee/real estate broker. —

A real estate broker brought his action for commissions against the administrator of a landowner. The landowner had placed his property in the hands of another broker for sale, who had asked plaintiff to assist him in making a sale and agreed to share commissions with him. It was held that the contract between the brokers was in effect an equitable assignment by the original broker to plaintiff of a one-half interest in the contract with the landowners, and that the plaintiff, under this section, had the right to maintain an action in his own name to enforce the collection of his commission against the landowner’s administrator. Arwood v. Hill's Adm'r, 135 Va. 235 , 117 S.E. 603 , 1923 Va. LEXIS 11 (1923).

Assignment of judgment does not carry right to sue sheriff. —

The assignment of a judgment does not carry with it, as an incident, the right to sue the sheriff and the sureties on his official bond for a breach of the condition thereof occurring prior to the assignment. Commonwealth v. Wampler, 104 Va. 337 , 51 S.E. 737 , 1905 Va. LEXIS 104 (1905).

Pleading and practice. —

In an action in the name of one for the use of another, it is usual to state the fact in the declaration, or on it, or on the writ. But this is not necessary. The indorsement may be made at any time during the progress of the suit. It is sometimes not made until after execution is issued, which is then indorsed for the benefit of the party for whose benefit the suit was brought. Hayes v. Virginia Mut. Protection Ass'n, 76 Va. 225 , 1882 Va. LEXIS 23 (1882) (see also Clarksons v. Doddridge, 55 Va. (14 Gratt.) 42 (1857); Fadeley v. Williams, 96 Va. 397 , 31 S.E. 515 (1899); Consumers Ice Co. v. Jennings, 100 Va. 719 , 42 S.E. 879 (1902)).

§ 8.01-13. Assignee or beneficial owner may sue in own name; certain discounts allowed.

The assignee or beneficial owner of any bond, note, writing or other chose in action, not negotiable may maintain thereon in his own name any action which the original obligee, payee, or contracting party might have brought, but, except as provided in § 8.9A-403 , shall allow all just discounts, not only against himself, but against such obligee, payee, or contracting party, before the defendant had notice of the assignment or transfer by such obligee, payee, or contracting party, and shall also allow all such discounts against any intermediate assignor or transferor, the right to which was acquired on the faith of the assignment or transfer to him and before the defendant had notice of the assignment or transfer by such assignor or transferor to another.

History. Code 1950, § 8-94; 1964, c. 219; 1966, c. 396; 1977, c. 617.

Cross references.

As to rights of assignee against assignor, see § 8.01-14 .

As to equitable jurisdiction, see § 8.01-33 .

As to survival of causes of action, see § 8.01-56 .

As to payment and set-offs as defenses, see §§ 8.01-422 , 8.01-423 .

As to when person not a party may take and sue under an instrument, see § 55.1-119 .

As to assignment of various types of interest, see § 38.2-3111 (life insurance policies); §§ 55.1-1400 , 55.1-1409 (leases).

Law Review.

For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973).

For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Assignments, §§ 7, 10, 11, 36 — 38.

CASE NOTES

Analysis

I.General Consideration.

Editor’s note.

Many of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, sometimes refers to former provisions.

This section does not create any new cause of action, and has no application to cases in which there is no assignment. Commonwealth v. Wampler, 104 Va. 337 , 51 S.E. 737 , 1905 Va. LEXIS 104 (1905).

Applicable to law, not equity, actions. —

The terminology of this section connotes its applicability to actions at law rather than to suits in equity. Moreover, there is a valid distinction between the accrual of the equitable, inchoate right to contribution that arises at the time of jointly negligent acts and the maturation of the right to recover contribution that arises only after payment of an equally large share of the common obligation. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75, 1973 Va. LEXIS 234 (1973).

It is limited in its application to nonnegotiable instruments, and cannot be construed to apply to negotiable instruments negotiated after maturity, because an instrument negotiable in its origin continues to be negotiable until it has been restrictively indorsed or discharged by payment or otherwise. Stegal v. Union Bank & Fed. Trust Co., 163 Va. 417 , 176 S.E. 438 , 1934 Va. LEXIS 194 (1934).

This section does not apply to negotiable paper, though such paper has been transferred after due. Davis v. Miller, 55 Va. (14 Gratt.) 1, 1857 Va. LEXIS 21 (1857).

It imposes no conditions on the assignee’s right to sue, but allows the assignee to bring in his own name any suit which the assignor may have brought. United States ex rel. Shade Shop, Inc. v. R.B. McDanel Co., 16 F. Supp. 905, 1936 U.S. Dist. LEXIS 1907 (D. Va. 1936).

Section enacted primarily for benefit of plaintiff. —

The history of this section shows that it was enacted primarily for the benefit, convenience and protection of the plaintiff or an assignee of the plaintiff, and not for the benefit or protection of the defendant whose rights are amply safeguarded. Miller v. Tomlinson, 194 Va. 367 , 73 S.E.2d 378, 1952 Va. LEXIS 240 (1952).

Rules of evidence not changed. —

This section cannot be construed to change the rules of evidence applicable. Noland Co. v. Wagner, 153 Va. 254 , 149 S.E. 478 , 1929 Va. LEXIS 261 (1929).

As to history of former law, see Carozza v. Boxley, 203 F. 673, 1913 U.S. App. LEXIS 1187 (4th Cir. 1913).

II.What May Be Assigned.

Assignable rights of action. —

A right of action for mere personal torts, such as assault and battery, false imprisonment, malicious prosecution, defamation and deceit, which die with the party and do not survive, cannot be assigned, but a right of action to recover damages for an injury to property, real or personal, may be assigned. Dillard v. Collins, 66 Va. (25 Gratt.) 343, 1874 Va. LEXIS 63 (1874); Norfolk & W.R.R. v. Read, 87 Va. 185 , 12 S.E. 395 , 1890 Va. LEXIS 108 (1890).

A right of action in pending suit against railroad company for negligently setting fire to plaintiff’s property may be assigned in whole or in part. Tyler v. Ricamore, 87 Va. 466 , 12 S.E. 799 , 1891 Va. LEXIS 95 (1891).

When a lower proprietor of land is damaged by the permanent diversion of water from a stream by a city, and after the diversion such proprietor sells and conveys his property thus damaged to a third person and assigns to him all the assignor’s rights which belonged to the owner of the property at the time of the diversion, the purchaser is thus clothed with all rights which belonged to the owner at the time of diversion, and has the right to recover the damages resulting from such diversion. Such damages are a legitimate subject of assignment, and it is immaterial that the assignee was also the grantee of the land who purchased it at a reduced price in consequence of the diversion. City of Lynchburg v. Mitchell, 114 Va. 229 , 76 S.E. 286 , 1912 Va. LEXIS 131 (1912).

A right of action against a common carrier for injury to goods while in course of transportation is assignable. Norfolk & W.R.R. v. Read, 87 Va. 185 , 12 S.E. 395 , 1890 Va. LEXIS 108 (1890).

Legal malpractice claims not assignable. —

Estate beneficiary lacked standing to pursue a legal malpractice claim against the attorney representing her mother’s estate because § 8.01-13 did not abrogate the common-law rule prohibiting the assignment of legal malpractice claims, and the attorney represented the estate, not the beneficiary. Johnson v. Hart, 279 Va. 617 , 692 S.E.2d 239, 2010 Va. LEXIS 55 (2010).

Indemnitors as assignees of right of contribution against joint tort-feasors. —

Under this section and § 55-22, an action was properly brought by a transit company to secure contribution from other joint tort-feasors for the benefit of insurance companies that had indemnified the transit company for a settlement made with a passenger injured in one of its buses. The indemnitors were assignees and the beneficial owners of the right of the transit company to enforce contribution against such tort-feasors, and they had the right to proceed in the name of the transit company for their own use and benefit. McKay v. Citizens Rapid Transit Co., 190 Va. 851 , 59 S.E.2d 121, 1950 Va. LEXIS 175 (1950).

Assignment of benefits payable to an insured under a health insurance policy is a contingent entitlement to certain benefits, i.e., an entitlement which may or may not vest sometime in the future. That entitlement, however, is one coupled with an interest, an interest derived from contract. As such, it is a proper subject of assignment. Kelly Health Care, Inc. v. Prudential Ins. Co. of Am., 226 Va. 376 , 309 S.E.2d 305, 1983 Va. LEXIS 294 (1983).

Health care provider was held not to be an assignee of an insured’s benefits under a health insurance policy where one of the documents on which it relied did no more than appoint the health care provider as the insured’s special agent with entitlement to collect payments from the insurer as the insured’s entitlements fell due and the other document granted the insurer authority in the nature of a power of attorney to make such payments. Kelly Health Care, Inc. v. Prudential Ins. Co. of Am., 226 Va. 376 , 309 S.E.2d 305, 1983 Va. LEXIS 294 (1983).

A contingent or future interest may be assigned. Prince v. Barham, 127 Va. 462 , 103 S.E. 626 , 1920 Va. LEXIS 64 (1920).

Leases. —

It is settled law that in the absence of express prohibition all leases are assignable. Wainwright v. Bankers' Loan & Inv. Co., 112 Va. 630 , 72 S.E. 129 , 1911 Va. LEXIS 129 (1911).

Mechanic’s lien. —

The contract and mechanic’s lien under the statute may be assigned, and the assignee may enforce the lien in the same mode that the mechanic might do it. Iaege v. Bossieux, 56 Va. (15 Gratt.) 83, 1859 Va. LEXIS 5 (1859).

Open accounts. —

A debt due from another, though evidenced by an open account, is a chose in action, and the beneficial owner thereof may maintain an action therefor in his own name under this section. Phillips v. City of Portsmouth, 115 Va. 180 , 78 S.E. 651 , 1913 Va. LEXIS 21 (1913).

Under this section an ordinary running account between parties, showing an alleged indebtedness from the one to the other, is assignable. Porter v. Young, 85 Va. 49 , 6 S.E. 803 , 1888 Va. LEXIS 10 (1888).

Personal service contracts. —

Where the personal services of another are expressly contracted for, or are necessarily involved in the subject matter of the contract, the contract is founded on personal trust and confidence, and is not assignable until the services have been performed. Epperson v. Epperson, 108 Va. 471 , 62 S.E. 344 , 1908 Va. LEXIS 55 (1908); McGuire v. Brown, 114 Va. 235 , 76 S.E. 295 , 1912 Va. LEXIS 132 (1912).

III.What Constitutes an Assignment.
A.In General.

No particular form necessary. —

To constitute an assignment of a debt or other chose in action in equity no particular form is necessary. Any order, writing, or act, which makes an appropriation of a fund, will amount to an equitable assignment of the fund, and taking all the surrounding circumstances into consideration, if it appears that the assignor intended to assign a particular fund to the assignee, and the assignee so understood and accepted it, then it is sufficient to pass to the assignee the debt so secured. Cunningham v. Herndon, 6 Va. (2 Call) 530, 1801 Va. LEXIS 4 (1801); Atwell v. Towles, 15 Va. (1 Munf) 175, 1810 Va. LEXIS 48 (1810); Switzer v. Noffsinger, 82 Va. 518 , 1886 Va. LEXIS 66 (1886) (see also S.H. Hawes & Co. v. William R. Trigg Co., 110 Va. 165 , 65 S.E. 538 (1909), modified, 218 U.S. 452, 31 S. Ct. 49, 54 L. Ed. 1107 (1910); Hughes v. Burwell, 113 Va. 598 , 75 S.E. 230 (1912); Rinehart & Dennis Co. v. McArthur, 123 Va. 556 , 96 S.E. 829 (1918); Poff v. Poff, 128 Va. 62 , 104 S.E. 719 (1920)).

But section only applies to assignee or beneficial owner. —

A debtor sold and conveyed property to a purchaser, who, as part of the consideration, covenanted that he would pay certain debts of his grantor. The purchaser conveyed to a second purchaser, who, likewise, as a part of consideration for the conveyance to him, covenanted that he would pay the said debts of the original grantor. A motion for a joint judgment at law in favor of the creditor against the original debtor and each of the purchasers, who had successively covenanted to pay the debts, cannot be maintained under this section. For the creditor is neither assignee nor beneficial owner of the debts which the successive purchasers had promised to pay, but the true owner of the debt of the original debtor. McIlvane v. Big Stoney Lumber Co., 105 Va. 613 , 54 S.E. 473 , 1906 Va. LEXIS 69 (1906).

Subrogation is not the same as assignment. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75, 1973 Va. LEXIS 234 (1973).

But distinction between assignment and subrogation not determinative in construing section. —

As the term “beneficial owner” in this section is broad enough to include a subrogee, the distinction between assignment and subrogation is not determinative in construing this section. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75, 1973 Va. LEXIS 234 (1973).

Appointment of an agent or the grant of a power of attorney cannot qualify as an assignment. Both are revocable, and the latter expires at the grantor’s death. Kelly Health Care, Inc. v. Prudential Ins. Co. of Am., 226 Va. 376 , 309 S.E.2d 305, 1983 Va. LEXIS 294 (1983).

Effect of misnomer in corporate name. —

A misnomer in a corporate name does not invalidate an assignment when it is clear what corporation the parties intended, and such a mistake may be shown in evidence, upon the general issue. Lataif v. Commercial Indus. Constr., Inc., 223 Va. 59 , 286 S.E.2d 159, 1982 Va. LEXIS 171 (1982).

B.Necessity for Consideration.

A written assignment of a claim does not necessarily import a valuable consideration; and if it be fairly inferable, from the circumstances, that the assignment was a gift, the assignor cannot be held responsible to make good the claim, to the immediate assignee or to his assignees for value. Wood v. Duval, 36 Va. (9 Leigh) 6, 1837 Va. LEXIS 55 (1837).

Presumption as to amount. —

In absence of proof of consideration for assignment, it must be presumed to have been the value of the thing assigned, and such value measures the recovery on recourse. Barley v. Layman, 79 Va. 518 , 1884 Va. LEXIS 106 (1884).

C.Notice.

Effect of notice. —

The debtor, before notice of the assignment may, by contract with his creditors, thoroughly modify the legal relation subsisting between them, or may enter into a new and different contract, which shall by express words constitute an extinguishment of the subsisting contract. The assignee should be diligent in giving notice to the debtor, that he might know his real creditor. Without such notice, the debtor has every reason to consider the payee still his creditor, and any payment made to the payee, or new contract expressly entered into between them in extinguishment of the note, before notice of the assignment, is in contemplation of law a payment of the note, and the assignee cannot recover upon it as against the payee, if the defendant pleads payment, and files with his plea an account showing the nature of the payment relied on. Huffman v. Walker, 67 Va. (26 Gratt.) 314, 1875 Va. LEXIS 22 (1875); Switzer v. Noffsinger, 82 Va. 518 , 1886 Va. LEXIS 66 (1886).

Recordation. —

Assignments of choses in action need not be recorded in Virginia. Hence, such recordation if made would not constitute constructive notice to third persons. Kirkland v. Brune, 72 Va. (31 Gratt.) 126, 1878 Va. LEXIS 33 (1878); Gregg v. Sloan, 76 Va. 497 , 1882 Va. LEXIS 54 (1882); Bickle v. Chrisman, 76 Va. 678 , 1882 Va. LEXIS 68 (1882); Gordon v. Rixey, 76 Va. 694 , 1882 Va. LEXIS 69 (1882); Daily's Ex'r v. Warren, 80 Va. 512 , 1885 Va. LEXIS 89 (1885); Ginter v. Breeden, 90 Va. 565 , 19 S.E. 656 , 1894 Va. LEXIS 24 (1894).

Legal effect of notice of assignment is not to make the debtor disclose his defenses, but to preclude him from setting up after-acquired defenses against assignor. Norton v. Rose, 1 Va. (1 Wash.) 233, 2 Va. (1 Wash.) 233, 1 Wash. 233, 1793 Va. LEXIS 43 (1793); Garland v. Richeson, 25 Va. (4 Rand.) 266, 1826 Va. LEXIS 34 (1826); Feazle v. Dillard, 32 Va. (5 Leigh) 30, 1834 Va. LEXIS 13 (1834); Gordon v. Rixey, 76 Va. 694 , 1882 Va. LEXIS 69 (1882); Stebbins v. Bruce, 80 Va. 389 , 1885 Va. LEXIS 78 (1885).

IV.Effect of Assignment.
A.Assignee Takes Subject to Equities and Set-Offs.

Assignee takes same rights and is subject to same liabilities as assignor. —

It is settled law in this State that assignee of nonnegotiable paper stands in the shoes of his assignor, and takes subject to all defenses of the debtor against the assignor existing before notice of assignment. Davis v. Miller, 55 Va. (14 Gratt.) 1, 1857 Va. LEXIS 21 (1857); Etheridge v. Parker, 76 Va. 247 , 1882 Va. LEXIS 26 (1882); Stebbins v. Bruce, 80 Va. 389 , 1885 Va. LEXIS 78 (1885).

It has been settled by many decisions that the effect of the statute is not to give the assignee of nonnegotiable paper a legal title, so that equities are cut off against him, but only to permit him to enforce in his own name an equitable title at law, subject to all prior equities, just as when he sued in the assignor’s name. Davis v. Miller, 55 Va. (14 Gratt.) 1, 1857 Va. LEXIS 21 (1857); Clarksons v. Doddridge, 55 Va. (14 Gratt.) 42, 1857 Va. LEXIS 18 (1857); Iaege v. Bossieux, 56 Va. (15 Gratt.) 83, 1859 Va. LEXIS 5 (1859); Tyler v. Ricamore, 87 Va. 466 , 12 S.E. 799 , 1891 Va. LEXIS 95 (1891).

Under this section an assignee is clothed with just such capacity to sue as existed at common law in his assignor. He is vested with power to institute such actions, and such actions only, as his assignor could have maintained. Aylett v. Walker, 92 Va. 540 , 24 S.E. 226 , 1896 Va. LEXIS 15 (1896).

In an action by an assignee the defendant may avail himself of all defenses he had against the assignor before he received notice of the assignment. Hartford Fire Ins. Co. v. Mutual Sav. & Loan Co., 193 Va. 269 , 68 S.E.2d 541, 1952 Va. LEXIS 133 (1952).

Breaches of contract occurring after assignment. —

Where the right asserted by the debtor against the assignee was not the right of set-off, growing out of an extrinsic transaction, but rather the right of recoupment, allowing diminution of the claim made for failure of the claimant to live up to the terms of the agreement out of which the claim arose, breaches by the assignor of its contract could be properly urged against its assignee though occurring after the assignment. National Bank & Trust Co. v. Castle, 196 Va. 686 , 85 S.E.2d 228, 1955 Va. LEXIS 140 (1955).

Effect when debtor and creditor firms have common partners. —

The assignee of a nonnegotiable chose in action may, under this section, maintain thereon in his own name any action which his assignor might have maintained. But where the debtor and the creditor are firms in which there are one or more common partners, no action at law can be maintained in the name of the assignee of the chose, as none could have been maintained by his assignors. Aylett v. Walker, 92 Va. 540 , 24 S.E. 226 , 1896 Va. LEXIS 15 (1896).

Set-off may be waived. —

In accordance with the well settled principle that an individual may waive any statutory or constitutional provision intended for his benefit, one having the right of set-off may waive it. But where an agreement is relied on in justification of a departure from the general rules governing set-off, it must appear that the proposed set-off is embraced therein. Armour & Co. v. Whitney & Kemmerer, Inc., 164 Va. 12 , 178 S.E. 889 , 1935 Va. LEXIS 170 (1935).

B.Right to Sue.

In name of assignee. —

The assignee or beneficial owner of a contract may, under the express provisions of this section, maintain an action thereon in his own name. Oliver Ref. Co. v. Portsmouth Cotton Oil Ref. Corp., 109 Va. 513 , 64 S.E. 56 , 1909 Va. LEXIS 61 (1909).

Under this section a trustee and assignee of a joint stock company may sue in his own name for unpaid subscriptions to the capital stock of the company. Glenn v. Scott, 28 F. 804, 1886 U.S. App. LEXIS 2364 (C.C.D. Va. 1886).

In name of either party. —

Where money due a subcontractor was assigned by him to creditors pursuant to an order to pay which was accepted by the contractors, the only effect of this section was to enable the assignee to sue in the name of the assignor taking the assigned claim subject to all equities of the assignor in whom the legal title still remained, and it was therefore error to refuse to permit the assignor to sue thereon for his own benefit and for the use of his assignees to the extent of their interest. Carozza v. Boxley, 203 F. 673, 1913 U.S. App. LEXIS 1187 (4th Cir. 1913).

Under this section suit may be brought on an assigned chose in action either in the name of the original obligee or payee, in his name for the use of the assignee or in the name of the assignee alone. Carozza v. Boxley, 203 F. 673, 1913 U.S. App. LEXIS 1187 (4th Cir. 1913).

Under this section an action on a fire insurance policy, which contained a standard mortgage clause, could be maintained by the owner of the realty and did not have to be brought by the mortgagee. Glens Falls Ins. Co. v. Sherritt, 95 F.2d 823, 1938 U.S. App. LEXIS 4794 (4th Cir. 1938).

The assignee of a bond under our statute does not acquire the legal title to the debt, but an equitable right, which, by virtue of the statute, he may assert at law in his own name, and he has his election to sue, at law, in his own name, or in that of the original obligee, for his benefit. Garland v. Richeson, 25 Va. (4 Rand.) 266, 1826 Va. LEXIS 34 (1826).

Under this section the assignee of an insurance policy could have sued in his own name, but not having done so, a recovery for his benefit is not thereby barred. The indorsement of the fact is sometimes not made until after the execution is issued. Aetna Ins. Co. v. Aston, 123 Va. 327 , 96 S.E. 772 , 1918 Va. LEXIS 32 (1918).

A deed of trust on a chose in action is an assignment pro tanto of the chose and an action thereon in the name of the assignor for the benefit of himself and the creditor secured is properly brought. Newton v. White, 115 Va. 844 , 80 S.E. 561 , 1914 Va. LEXIS 140 (1914).

Right to sue accruing prior to assignment of judgment not included. —

This section does not authorize an assignee of a judgment to maintain an action against an officer and the sureties on his official bond for a breach occurring prior to the assignment, by reason of the officer’s failure to return a forthcoming bond taken on the judgment as prescribed by statute to give the bond the force of a judgment against the obligors. The section does not invest in assignees as an incident to assignment a litigious right against a third person for an injury which accrued prior to the assignment. Commonwealth v. Wampler, 104 Va. 337 , 51 S.E. 737 , 1905 Va. LEXIS 104 (1905).

Legatee has no right to collect debts under this section. —

This section was not intended to overthrow the well-established principle and the rule of law that, in case of death, the personal estate of the decedent passes “to the personal representatives, and that he alone has title in law to them,” and to afford to a legatee the right to bring an action at law to collect a debt belonging to the estate of the testator, without first deriving title from the personal representative. Strader v. Metropolitan Life Ins. Co., 128 Va. 238 , 105 S.E. 74 , 1920 Va. LEXIS 103 (1920).

CIRCUIT COURT OPINIONS

Standing. —

Administratrix had standing under § 8.01-13 to bring an action for failure to defend against several insurers under an assignment of rights from a property manager, who had been the defendant in five settled wrongful death actions filed by the administratrix; further, the administratrix was the proper person to bring the previous wrongful death actions under § 8.01-50 , and she acted as the surrogate for the beneficiaries of a cause of action named in § 8.01-53 . Beckner v. Twin City Fire Ins. Co., 58 Va. Cir. 544, 2002 Va. Cir. LEXIS 175 (Roanoke June 27, 2002).

Because the underlying action was by an alleged assignee to enforce her right to recover the repayment of a loan, the assignee had standing to bring the action under § 8.01-13 . Faison v. Hughson, 80 Va. Cir. 96, 2010 Va. Cir. LEXIS 20 (Roanoke Jan. 22, 2010).

OPINIONS OF THE ATTORNEY GENERAL

Assignment of medical benefits payments. —

Assignments of medical benefits payable under automobile insurance policies where the policyholder assigns these benefits to a chiropractor who provided treatment covered by the policy are enforceable. Provisions of insurance contracts seeking to limit or preclude this kind of assignment are unenforceable so long as the assignment does not materially alter the risk or obligation of the insurer. See opinion of Attorney General to The Honorable Bill Janis, Member, House of Delegates, 10-066, (9/24/10).

§ 8.01-14. Suit against assignor.

Any assignee or beneficial owner may recover from any assignor of a writing; but only joint assignors shall be joined as defendants in one action. A remote assignor shall have the benefit of the same defense as if the suit had been instituted by his immediate assignee.

History. Code 1950, § 8-95; 1977, c. 617.

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Assignments, §§ 34, 37, 39, 47.

CASE NOTES

Action may be by motion against remote assignor. —

Under former provisions an action could be maintained by motion by an assignee of a chose in action against a remote assignor thereof to recover money upon the contract implied by the assignment that he will repay the consideration received by him for the chose, if by the use of due diligence it cannot be made out of the obligor or maker. Long v. Pence, 93 Va. 584 , 25 S.E. 593 , 1896 Va. LEXIS 115 (1896) (decided under prior law).

Note necessary as evidence. —

In a proceeding by an assignee of a note against a remote assignor to recover on the contract implied by the assignment, the note is a necessary piece of evidence for the plaintiff in order to prove the assignment, and also to show the measure of plaintiff’s recovery. Long v. Pence, 93 Va. 584 , 25 S.E. 593 , 1896 Va. LEXIS 115 (1896) (decided under prior law).

§ 8.01-15. Suits by and against unincorporated associations or orders.

All unincorporated associations or orders may sue and be sued under the name by which they are commonly known and called, or under which they do business, and judgments and executions against any such association or order shall bind its real and personal property in like manner as if it were incorporated.

History. Code 1950, § 8-66; 1962, c. 250; 1977, c. 617.

REVISERS’ NOTE

Section 8.01-15 is the first sentence of former § 8-66; the second sentence of which regarding process was deleted as unnecessary in light of § 8.01-305 .

Law Review.

For survey of Virginia law on business associations for the year 1974-1975, see 61 Va. L. Rev. 1650 (1975).

For article on condominium association liability for failure to provide adequate security or maintenance in the common areas, see 22 U. Rich. L. Rev. 127 (1988).

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Associations and Clubs, § 6.

CASE NOTES

Editor’s note.

The cases cited below were decided under corresponding provisions of former law.

This section may be viewed as merely procedural. Hawthorne v. Austin Organ Co., 71 F.2d 945, 1934 U.S. App. LEXIS 3257 (4th Cir.), cert. denied, 293 U.S. 623, 55 S. Ct. 237, 79 L. Ed. 710, 1934 U.S. LEXIS 413 (1934).

“Unincorporated association” defined. —

The words “unincorporated association” denote a voluntary group of persons joined together by mutual consent for the purpose of promoting some stated objective. Such an association suggests an organized group made up of persons who become members of the association voluntarily, but subject to certain rules or bylaws; the members are customarily subject to discipline for violations or non-compliance with the rules of the association. Yonce v. Miners Mem. Hosp. Ass'n, 161 F. Supp. 178, 1958 U.S. Dist. LEXIS 2342 (D. Va. 1958).

The word “association” as here used refers to associations such as trade unions, fraternal organizations, business organizations, and the like. Yonce v. Miners Mem. Hosp. Ass'n, 161 F. Supp. 178, 1958 U.S. Dist. LEXIS 2342 (D. Va. 1958).

Capacity to sue or be sued does not necessarily imply standing. —

The former version of this section specifically confers upon an unincorporated association the capacity to sue or be sued, but the fact that an association has capacity to sue does not necessarily imply that it also has standing to maintain a particular action. Richmond Black Police Officers Ass'n v. City of Richmond, 386 F. Supp. 151, 1974 U.S. Dist. LEXIS 5751 (E.D. Va. 1974).

Name of organization should be used in actions. —

An action to compel railway to recognize a labor organization as bargaining agent should be prosecuted in the name of the organization. Railway Employees' Dep't of Am. Fed'n of Labor v. Virginian Ry., 39 F. Supp. 354, 1941 U.S. Dist. LEXIS 3211 (D. Va. 1941).

Authority to proceed with litigation. —

The former version of this section contemplates that litigation brought pursuant thereto will be instituted by the officers of such unincorporated association or order who have charge of its affairs or by members of the association or order who have been legally authorized to proceed with the litigation. Brown v. Virginia Advent Christian Conference, 194 Va. 909 , 76 S.E.2d 240, 1953 Va. LEXIS 157 (1953).

Real estate investment trust created under Chapter 9 of Title 6.1 is an “unincorporated association” within the meaning of the former version of this section, entitled to sue in its own name. Grenco Real Estate Inv. Trust v. Brooker, 215 Va. 413 , 211 S.E.2d 33, 1975 Va. LEXIS 165 (1975).

The United Mine Workers of America Welfare and Retirement Fund is a trust and is not an unincorporated association in the sense contemplated by the former version of this section. Yonce v. Miners Mem. Hosp. Ass'n, 161 F. Supp. 178, 1958 U.S. Dist. LEXIS 2342 (D. Va. 1958).

§ 8.01-15.1. Anonymous plaintiff; motion for identification; factors to be considered by court.

  1. In any legal proceeding commenced anonymously, any party may move for an order concerning the propriety of anonymous participation in the proceeding. The trial court may allow maintenance of the proceeding under a pseudonym if the anonymous litigant discharges the burden of showing special circumstances such that the need for anonymity outweighs the public’s interest in knowing the party’s identity and outweighs any prejudice to any other party. The court may consider whether the requested anonymity is intended merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a sensitive and highly personal matter; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or to innocent nonparties; the ages of the persons whose privacy interests are sought to be protected; whether the action is against a governmental or private party; and the risk of unfairness to other parties if anonymity is maintained.
  2. If the court initially permits a party to proceed anonymously, the issue of the propriety of continued anonymous participation in the proceedings may be raised at any stage of the litigation when circumstances warrant a reconsideration of the issue. In all cases, all parties have the right to know the true identities of all other parties under such provisions of confidentiality as the court may deem appropriate.
  3. If the court orders that the anonymous litigant be identified, the pleadings and any relevant dockets shall be reformed to reflect the party’s true name, and the identification shall be deemed to relate back to the date of filing of the proceeding by the anonymous party.
  4. In any legal proceeding in which a party is proceeding anonymously, the court shall enter appropriate orders to afford all parties the rights, procedures and discovery to which they are otherwise entitled.

History. 2003, c. 572.

Law Review.

For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

CASE NOTES

Standing to bring federal claim. —

Because plaintiff, classified as a sexually violent offender, alleged harm from not being able to access church property (due to Sunday schools) or the property of defendant school board under subsection A of § 18.2-370.5 , but she had not attempted to petition a state court (which she could have done anonymously), the board, or the churches, for access as provided in §§ 8.01-15.1 and 18.2-370.5 , she lacked standing to bring claims of constitutional violations under U.S. Const. amend. I and XIV, based on not being able to associate with the school community and not being able to attend churches of her choosing. Doe v. Va. Dep't of State Police, 713 F.3d 745, 2013 U.S. App. LEXIS 7403 (4th Cir. 2013), cert. denied, 572 U.S. 1015, 134 S. Ct. 1538, 188 L. Ed. 2d 556, 2014 U.S. LEXIS 2190 (2014).

CIRCUIT COURT OPINIONS

Motion to proceed under a pseudonym denied. —

Injured party’s motion to proceed under a pseudonym in an action against a minister alleging sexual molestation and assault was denied, because the injured party failed to meet the requirements set out in § 8.01-15.1 , as the injured party failed to show that her identification posed a risk of retaliation, and allowing the injured party to proceed under a pseudonym could have caused a risk of unfairness to the minister. Doe v. Briscoe, 61 Va. Cir. 96, 2003 Va. Cir. LEXIS 50 (Roanoke Apr. 24, 2003).

“Special circumstances” not proven. —

Unnamed person did not satisfy any of the factors to weigh in order to satisfy the burden imposed under this section to show “special circumstances” that outweighed the public’s interest in knowing the identity of a petitioner and prejudice to the petitioner to allow anonymity because § 46.2-208, which protected disclosure of driving records, applied only to Department of Motor Vehicles and not court proceedings. Doe v. Commonwealth, 85 Va. Cir. 419, 2012 Va. Cir. LEXIS 151 (Richmond Oct. 9, 2012).

§ 8.01-15.2. Servicemembers Civil Relief Act; default judgment; appointment of counsel.

  1. Notwithstanding the provisions of § 8.01-428 , in any civil action or proceeding in which the defendant does not make an appearance, the court shall not enter a judgment by default until the plaintiff files with the court an affidavit (i) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (ii) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service. Subject to the provisions of § 8.01-3 , the Supreme Court shall prescribe the form of such affidavit, or the requirement for an affidavit may be satisfied by a written statement, declaration, verification or certificate, subscribed and certified or declared to be true under penalty of perjury. Any judgment by default entered by any court in any civil action or proceeding in violation of subchapter II of the Servicemembers Civil Relief Act (50 U.S.C. § 3901 et seq.) may be set aside as provided by the Act. Failure to file an affidavit shall not constitute grounds to set aside an otherwise valid default judgment against a defendant who was not, at the time of service of process or entry of default judgment, a servicemember as defined in 50 U.S.C. § 3911.
  2. Where appointment of counsel is required pursuant to 50 U.S.C. § 3931 or 3932 or another section of the Servicemembers Civil Relief Act, the court may assess reasonable attorney fees and costs against any party as the court deems appropriate, including a party aggrieved by a violation of the Act, and shall direct in its order which of the parties to the case shall pay such fees and costs. Such fees and costs shall not be assessed against the Commonwealth unless it is the party that obtains the judgment. Any attorney fees assessed pursuant to this subsection shall not exceed $125, unless the court deems a higher amount appropriate.
  3. The appointed counsel may issue a subpoena duces tecum for all discoverable electronic and print files, records, documents, and memoranda regarding the transactional basis for the suit. If requested in the subpoena, the plaintiff shall also deliver all documents or information concerning the location of the servicemember.
  4. Counsel appointed pursuant to the Servicemembers Civil Relief Act shall not be selected by the plaintiff or have any affiliation with the plaintiff. However, counsel for the plaintiff may provide a list of attorneys familiar with the provisions of the Servicemembers Civil Relief Act upon the request of the court.

History. 2004, c. 381; 2005, c. 909; 2016, c. 643; 2019, c. 454.

The 2005 amendments.

The 2005 amendment by c. 909 added the subsection A designator and subsection B; and in subsection A, substituted “Article 2” for “Title II” and “(50 U.S.C. app. § 527 et seq.)” for “(50 U.S.C. Appx. §§ 501 et seq.)” in the third sentence and added the fourth sentence.

The 2016 amendments.

The 2016 amendment by c. 643 updated references in the last two sentences in subsection A; rewrote the first sentence in subsection B, which formerly read: “Where appointment of counsel is required pursuant to 50 U.S.C. app. § 521 or 522, the court may assess attorneys’ fees and costs against any party as the court deems appropriate, and shall direct in its order which of the parties to the case shall pay such fees and costs”; and added subsections C and D.

The 2019 amendments.

The 2019 amendment by c. 454 added the third sentence in subsection B.

Law Review.

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

Article 3. Death or Change of Parties.

§ 8.01-16. New parties may have continuance.

Except in the Supreme Court any new party to a case, whether he be joined or substituted, may in the discretion of the court have a continuance; and the court may allow him to plead anew or amend the pleadings so far as it deems reasonable, but in other respects the case shall proceed to final judgment or decree for or against him, in like manner as if he had been an original party to the case.

History. Code 1950, § 8-150; 1977, c. 617.

REVISERS’ NOTE

The substantive effect of the section remains the same as former § 8-150 whereby a continuance is discretionary with the trial court in any case where a new party is joined or substituted. With the abolition of the writ of scire facias, § 8.01-24 , the procedure will be by motion.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 34, 41, 44.

CASE NOTES

Former provisions of this section refers to such cases as are revived by an order entered in term. Stearns v. Richmond Paper Mfg. Co., 86 Va. 1034 , 11 S.E. 1057 , 1890 Va. LEXIS 82 (1890) (decided under prior law).

§ 8.01-17. When party whose powers cease is defendant.

When the party whose powers cease is defendant, the plaintiff may continue his suit against him to final judgment or decree; provided that a successor in interest may be substituted in accordance with the Rules of Court; and provided further that upon motion the court may order that the suit proceed against the former party as well as the successor.

History. Code 1950, § 8-152; 1954, c. 333; 1977, c. 617.

REVISERS’ NOTE

Section 8.01-17 follows former § 8-152 by giving a plaintiff the right to continue his action against a defendant whose powers have ceased, e.g., an executor who has died. The first proviso permits the appointment of a successor for such a defendant. See Rules 2:16 and 3:15. The second proviso permits the plaintiff, upon court order, to proceed against such defendant as well as his successor; former § 8-152 is expanded to permit this in law as well as equity.

Cross references.

As to substitution of parties, see Rule 3:17.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 7, 8.

§ 8.01-18. When suit discontinued unless revived.

If the committee, personal representative, heir, or devisee of the plaintiff or appellant who was a party, or of the decedent whose personal representative was plaintiff or appellant, shall not make a motion for substitution of parties under the applicable Rules of Court within a reasonable time after there may have been a suggestion on the record of the fact making such motion proper, the suit of such plaintiff or appellant shall be discontinued, unless good cause be shown to the contrary.

History. Code 1950, § 8-153; 1954, c. 333; 1977, c. 617.

REVISERS’ NOTE

A “reasonable time” has been inserted for the substitution of parties under the Rules of Court. Otherwise minor language changes are made in the proposal without material change to former § 8-153.

Cross references.

For rule of court governing substitution of parties, see Rule 3:17.

Law Review.

For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 39, 40.

§ 8.01-19. Effect of marriage or change of name of party.

The marriage of a party shall not cause a suit or action to abate. If a party changes his name, upon affidavit or other proof of the fact, the suit or action shall proceed in the new name, but if the change of name be not suggested before judgment, the judgment shall be as valid, and may be enforced in like manner, as if no such change of name had taken place.

History. Code 1950, § 8-147; 1973, c. 401; 1977, c. 617.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, § 17.

§ 8.01-20. Effect of marriage, change of name or death on appeal.

If at any time after verdict or judgment in the trial court during the pendency of an appeal or before the appeal is granted, the marriage, change of name or death of a party, or any other fact which might otherwise be relied on in abatement occurs, and such fact is suggested or relied on in abatement in the Court of Appeals or the Supreme Court, the court may, in its discretion, take or retain jurisdiction and enter judgment or decree in the case as if such event had not occurred.

History. Code 1950, § 8-148; 1973, c. 401; 1977, c. 617; 1984, c. 703.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, § 12.

CASE NOTES

Editor’s note.

Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, may refer to former provisions.

Death after notice of appeal. —

Where plaintiff’s death occurred after the trial court lost jurisdiction of his action and after the notice of appeal had been filed, the appeal was ordered to proceed in the decedent’s name as if the death had not occurred. Locke v. Johns-Manville Corp., 221 Va. 951 , 275 S.E.2d 900, 1981 Va. LEXIS 233 (1981).

Death after appeal allowed. —

Where an appeal is allowed or writ of error awarded before the death of a party to a suit or action, the case is from that moment a case pending in the appellate court, and under this section there is no abatement in the appellate court because of the death. The same was very nearly true at common law. The statute effected no other change in the procedure than that it expressly leaves it to the discretion of the appellate court, where the death is made known to such court and is suggested on its record, to proceed with the case and enter judgment or decree as if such death had not occurred; whereas prior to the statute, a practice had grown up requiring, in case of death of either party, if made known to the appellate court and suggested on its record, a revival of the appeal or writ of error by consent. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).

Although the appellant died during the pendency of an appeal, the appeal did not abate. The Supreme Court of Virginia retained jurisdiction and entered judgment as if such event had not occurred. Kambis v. Considine, 290 Va. 460 , 778 S.E.2d 117, 2015 Va. LEXIS 165 (2015).

Death before appeal allowed. —

Where the death of a party to a suit or action occurs before an appeal is allowed or writ of error is awarded, the suit or action abates as to the deceased party. If an appeal or writ of error is sought in behalf of the estate of such deceased party, the application must be made by petition of his representative. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).

An appeal or writ of error cannot be granted to one who is dead and the appellate court is without authority under this section to enter judgment in a case in which the appellate proceedings were begun after the death of the alleged plaintiff in error. Booth v. Dotson, 93 Va. 233 , 24 S.E. 935 , 1896 Va. LEXIS 69 (1896).

Applicability. —

Va. Code Ann. § 8.01-20 has no application when a death occurs before an appeal or writ of error is awarded. Loewinger v. Estate of Loewinger, 64 Va. App. 1, 763 S.E.2d 826, 2014 Va. App. LEXIS 345 (2014).

Divorce suit. —

In a suit for divorce by a wife against her husband, the trial court decreed a divorce to the husband on his cross-bill. The husband died pending appeal by his wife after the case was argued and submitted to the Supreme Court. By virtue of this section the appellate court may, in its discretion, enter its decree dealing with the adjudications of the original decree as if no death of any party to the cause had occurred. Cumming v. Cumming, 127 Va. 16 , 102 S.E. 572 , 1920 Va. LEXIS 29 (1920).

Suggestion of bankruptcy. —

In a proceeding for refund of taxes a District of Columbia corporation obtained a decree declaring an Arlington County license tax invalid and a refund was paid by the county. Pending the county’s appeal counsel for the corporation filed a suggestion of bankruptcy and made a motion for dismissal. The rules of court being inapplicable to actions for refund of taxes, it was held under this section that the mere suggestion of bankruptcy when no motion had been made to substitute the trustee and no formal proof of bankruptcy or any stay order by the bankruptcy court had been offered did not justify dismissal of the appeal. County Bd. v. Kent Stores of Wash., Inc., 196 Va. 929 , 86 S.E.2d 44, 1955 Va. LEXIS 163 (1955).

§ 8.01-20.1. Certification of expert witness opinion at time of service of process.

Every motion for judgment, counter claim, or third party claim in a medical malpractice action, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. This certification is not necessary if the plaintiff, in good faith, alleges a medical malpractice action that asserts a theory of liability where expert testimony is unnecessary because the alleged act of negligence clearly lies within the range of the jury’s common knowledge and experience.

The certifying expert shall not be required to be an expert witness expected to testify at trial nor shall any defendant be entitled to discover the identity or qualifications of the certifying expert or the nature of the certifying expert’s opinions. Should the certifying expert be identified as an expert expected to testify at trial, the opinions and bases therefor shall be discoverable pursuant to Rule 4:1 of the Rules of Supreme Court of Virginia with the exception of the expert’s status as a certifying expert.

Upon written request of any defendant, the plaintiff shall, within 10 business days after receipt of such request, provide the defendant with a certification form that affirms that the plaintiff had obtained the necessary certifying expert opinion at the time service was requested or affirms that the plaintiff did not need to obtain a certifying expert witness opinion. The court, upon good cause shown, may conduct an in camera review of the certifying expert opinion obtained by the plaintiff as the court may deem appropriate. If the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant as required under this section, the court shall impose sanctions according to the provisions of § 8.01-271.1 and may dismiss the case with prejudice.

History. 2005, cc. 649, 692; 2007, c. 489; 2013, cc. 65, 610.

The 2007 amendments.

The 2007 amendment by c. 489 inserted “or requests a defendant to accept service of process” preceding “shall be deemed” in the first sentence of the first paragraph; and inserted “or qualifications” following “identity” in the first sentence of the second paragraph.

The 2013 amendments.

The 2013 amendments by cc. 65 and 610 are identical, and added the second sentence of the third paragraph.

Law Review.

For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

For Survey article, “Civil Practice and Procedure,” see 48 U. Rich. L. Rev. 1 (2013).

For essay, “Nonsuit in Virginia Civil Trials,” see 48 U. Rich. L. Rev. 265 (2013).

CASE NOTES

Expert testimony required to prove medical malpractice. —

In a Federal Tort Claims Act (FTCA), 28 U.S.C.S. § 2671 et seq., action, an inmate alleged that the prison medical staff negligently failed to diagnose and treat his neurological impairment; however, the undisputed facts demonstrated: (i) that the inmate did not comply with Virginia’s expert certification requirement, § 8.01-20.1 ; and (ii) that the inmate could not establish medical malpractice without the aid of expert testimony, as the matter was not one in which the act or omission was clearly negligent within the common knowledge of laymen. In essence, the case foundered on the absence of an expert witness for the inmate and the government’s motion for summary judgment was granted. Parker v. United States, 475 F. Supp. 2d 594, 2007 U.S. Dist. LEXIS 12760 (E.D. Va.), aff'd, 251 Fed. Appx. 818, 2007 U.S. App. LEXIS 24838 (4th Cir. 2007).

Circuit court properly dismissed, with prejudice, a patient’s medical malpractice action against a family practice physician because the patient failed to designate an expert to testify concerning proximate causation of her injuries where, although the patient alleged that the physician engaged in conduct involving unsolicited and unwanted sexual comments and innuendo and made vulgar and inappropriate comments that aggravated her preexisting conditions of post-traumatic stress disorder, fibromyalgia, depression, and radiculopathy, a lay jury was not equipped from common experience with the knowledge of what could cause the aggravation of complex preexisting medical problems. Summers v. Syptak, 293 Va. 606 , 801 S.E.2d 422, 2017 Va. LEXIS 102 (2017).

Expert certification of merit required. —

Inmate’s allegations did not meet the exception to excuse him from providing an expert certification of merit, under § 8.01-20.1 , because the inmate’s assertions did not lie within the range of common knowledge and experience because the inmate questioned a quintessential professional medical judgment, namely testing and diagnosing digestive disorders. Moody v. DeJesus, No. 7:08-cv-00432, 2009 U.S. Dist. LEXIS 9473 (W.D. Va. Jan. 23, 2009).

Procedural requirements satisfied. —

Plaintiff’s medical malpractice claim against VA surgical team members complied with the procedural requirements of the Virginia Medical Malpractice Act (VMMA) where, before serving the United States, he obtained written opinions from at least two board-certified orthopedic surgeons, which opined that others in the operating suite also breached the standard of care during plaintiff’s surgery and that VA medical center operating room personnel deviated from the standard of care. Blankenship v. United States, 111 F. Supp. 3d 745, 2015 U.S. Dist. LEXIS 67036 (W.D. Va. 2015), dismissed, 210 F. Supp. 3d 857, 2016 U.S. Dist. LEXIS 131316 (W.D. Va. 2016).

In a Federal Tort Claims Act in which the government moved to dismiss, contrary to the government’ assertion, the federal inmate’s amended complaint complied with the Virginia Medical Malpractice Act certification requirement and the court’s order. Sowers v. United States, 141 F. Supp. 3d 471, 2015 U.S. Dist. LEXIS 130972 (E.D. Va. 2015).

CIRCUIT COURT OPINIONS

Failure to comply with statutory requirements. —

Because a patient never responded to a dentist’s written request to provide an expert witness certification form, the patient did not comply with the statutory requirements of § 8.01-20.1 ; consequently, the patient’s malpractice action was dismissed. Wallace v. Farah, 72 Va. Cir. 37, 2006 Va. Cir. LEXIS 275 (Stafford County May 5, 2006).

Certifying opinion not discoverable. —

Certifying opinion of plaintiff’s expert was not discoverable, as under § 8.01-20.1 a certifying expert was to remain confidential even after the expert was designated to testify at trial under Va. Sup. Ct. R. 4:1; the expert’s certifying opinions and the basis for those opinions were not discoverable under Va. Sup. Ct. R. 4:1 and remained confidential. Grimaldi v. Burgess, 78 Va. Cir. 104, 2009 Va. Cir. LEXIS 13 (Fairfax County Jan. 14, 2009).

Defendant had no right to verification of certification. —

As a podiatrist filed an answer to a patient’s malpractice suit without having been served with the complaint or having been requested to formally waive service, he was not entitled to demand verification of the expert witness certification under § 8.01-20.1 .Lents v. Vetter, 80 Va. Cir. 268, 2010 Va. Cir. LEXIS 51 (Fairfax County Apr. 2, 2010).

Expert certification of merit required. —

Granting a demurrer of a former patient’s action against health care providers was appropriate because the patient failed to allege that the patient was damaged by health care providers’ actions in that the patient failed to show, through expert certification, or otherwise, that the partial knee replacement which the patient sought, but which the health care providers declined to provide the patient, was necessary and that the patient could not obtain a comparable surgery from another doctor. Rundle v. Carter, 91 Va. Cir. 177, 2015 Va. Cir. LEXIS 171 (Norfolk Sept. 17, 2015).

When a decedent’s estate sued defendant nursing facility for negligence and wrongful death based on the decedent’s alleged fall on a wet floor while a patient at the facility, the estate had to pay the facility’s fees and costs incurred in moving to dismiss for lack of an expert certification because the allegations of the complaint directly implicated decisions regarding supervision, treatment, and control over the decedent, placing the allegations within the ambit of the Medical Malpractice Act, requiring a sanction. Donnelly v. Autumn Corp., 95 Va. Cir. 216, 2017 Va. Cir. LEXIS 41 (Chesapeake Feb. 27, 2017).

Dismissal of a complaint that was brought by the administrator of a decedent’s estate against a senior-care facility at which the decedent was a patient was appropriate because the case was a medical malpractice case and the administrator failed to obtain an expert certification of merit. Webb v. Patrick Henry Hosp., Inc., 107 Va. Cir. 432, 2021 Va. Cir. LEXIS 57 (Newport News Mar. 30, 2021).

Certification proper. —

Administratrix’s counsel could reasonably believe his expert was qualified to offer an opinion about those who provided post-operative care because hospital employees preformed procedures within the expert’s field of knowledge; given the expert’s specialty and the fact that all employees discharged responsibilities about which he would appear to be qualified to testify, the employees, hospital, and medical practice failed to show he was not qualified to provide the certification. Wilder v. Children's Hosp. of the King's Daughters, 2017 Va. Cir. LEXIS 172 (Norfolk Sept. 20, 2017).

Contents and timing of an expert opinion satisfied the statute because an administratrix’s counsel obtained the required certification letter prior to requesting service on a hospital, medical practice, and hospital employees, albeit not prior to requesting preparation of summonses; the hospital, practice, and employee did not advance any authority to support the position that receipt after the request for summonses but prior to delivery for service violated the statute. Wilder v. Children's Hosp. of the King's Daughters, 2017 Va. Cir. LEXIS 172 (Norfolk Sept. 20, 2017).

Executor had obtained written certifications from experts opining that the medical facilities and medical providers had deviated from the applicable standard of care and that the deviation proximately caused the decedent’s alleged injuries as required by § § 8.01-20.1 and 8.01-50.1 where a surgeon met the statutory requirements for licensure, her certification and practice in wound care at skilled nursing facilities potentially qualified her as a specialist who knew the applicable standards of care, and her experience significantly overlapped with the responsibilities of nurses, the nursing home administrator, and dietician. Clarke v. Med. Facilities of Am., Inc., 108 Va. Cir. 106, 2021 Va. Cir. LEXIS 86 (Norfolk Apr. 20, 2021).

Expert certification not required. —

Facility’s motion for in camera review and to dismiss were overruled, as the cause of action did not fall within the scope of the Virginia Medical Malpractice Act and therefore expert certification pursuant to § 8.01-20.1 was not required. Martin v. Salvaggio, 92 Va. Cir. 339, 2016 Va. Cir. LEXIS 45 (Lynchburg Feb. 26, 2016).

Relevance of hospital policies, protocols, and procedures. —

Hospital’s CT scan protocols were not privileged under § 8.01-581.17 because the phrase “all communications” in § 8.01-581.17 was limited to the enumerated “proceedings, minutes, records, and reports,” and the protocols were relevant in a patient’s proceeding to gather adequate information to obtain an expert to make a § 8.01-20.1 certification. Jones v. Perez, 81 Va. Cir. 52, 2010 Va. Cir. LEXIS 278 (Chesapeake Oct. 26, 2010).

Waiver of rights by defendant. —

Defendant’s motion to dismiss the lawsuit after plaintiff did not obtain service on defendant when plaintiff re-filed the lawsuit was denied because defendant had waived rights available to defendant under § 8.01-20.1 when defendant waived service of process by making a valid general appearance in the case. Nance v. Secours, 70 Va. Cir. 52, 2005 Va. Cir. LEXIS 313 (Henrico County Oct. 7, 2005).

§ 8.01-21. Judgment when death or disability occurs after verdict but before judgment.

When a party dies, or becomes convicted of a felony or insane, or the powers of a party who is a personal representative or committee cease, if such fact occurs after verdict, judgment may be entered as if it had not occurred.

History. Code 1950, § 8-145; 1977, c. 617.

Cross references.

For rule of court as to substitution of parties, see Rule 3:17.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 12, 30.

CASE NOTES

Purpose. —

The clear purpose of this section is to eliminate the wastefulness of retrying an action which has been completely litigated. Boyd v. Bulala, 647 F. Supp. 781, 1986 U.S. Dist. LEXIS 18099 (W.D. Va. 1986), amended, 678 F. Supp. 612, 1988 U.S. Dist. LEXIS 1186 (W.D. Va. 1988), aff'd in part and rev'd in part, 877 F.2d 1191, 1989 U.S. App. LEXIS 8364 (4th Cir. 1989); Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670, 6 Va. Law Rep. 1399, 1990 Va. LEXIS 44 (1990).

Sections 8.01-21 , 8.01-25 , 8.01-50 , and 8.01-56 compared. —

The requirements of the survival and wrongful death statutes, §§ 8.01-25 , 8.01-50 and 8.01-56 , apply when the death occurs before a final verdict, whereas this section applies where the death occurs after the verdict. Boyd v. Bulala, 647 F. Supp. 781, 1986 U.S. Dist. LEXIS 18099 (W.D. Va. 1986), amended, 678 F. Supp. 612, 1988 U.S. Dist. LEXIS 1186 (W.D. Va. 1988), aff'd in part and rev'd in part, 877 F.2d 1191, 1989 U.S. App. LEXIS 8364 (4th Cir. 1989); Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670, 6 Va. Law Rep. 1399, 1990 Va. LEXIS 44 (1990).

Sections 8.01-25 and 8.01-56 are not in conflict with this section. They were enacted to extend the application of § 8.01-50 , the wrongful death statute, those situations not covered by the original Lord Campbell’s Act, in which a plaintiff who has filed an action for personal injuries, dies of those injuries before a verdict is returned. It was unnecessary at common law to amend, revive, or convert the action of the party who survived the return of a verdict, and it is equally unnecessary under the present statutory scheme. Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670, 6 Va. Law Rep. 1399, 1990 Va. LEXIS 44 (1990).

Death of child after medical malpractice verdict. —

Death of a child born with birth defects after a medical malpractice verdict did not require converting her claim into one for wrongful death. This section directly so provides, by directing that in such cases, “judgment may be entered as if [death] had not occurred.” Sections 8.01-25 and 8.01-56 are not in conflict. They deal with the situation where death occurs before verdict. Boyd v. Bulala, 905 F.2d 764, 1990 U.S. App. LEXIS 9498 (4th Cir. 1990).

Death of plaintiff after trial not grounds for new trial or admission of new evidence. —

Motion by defendant in medical malpractice action either to grant a new trial or to open the record to admit new evidence, which motion was prompted by the death of the infant plaintiff some six weeks after the trial, on grounds that had she died before trial, the parents could not have recovered certain elements of damages, including her future medical costs, was denied. Under Federal Rules of Civil Procedure 59 and 60(b)(2), newly discovered evidence must pertain to facts which existed at the time of trial. Were the rule otherwise, litigation would never end. Moreover, this section specifically provides for the entry of judgment when a party dies after the verdict. Boyd v. Bulala, 672 F. Supp. 915, 1987 U.S. Dist. LEXIS 10455 (W.D. Va. 1987).

Convict’s privilege to waive appointment of committee. —

There are no statutes or rules to deny a convict, already within the civil jurisdiction of the court at the time of his felony conviction and incarceration, the privilege of waiving the appointment of a committee and proceeding to trial and judgment in a law action in which he is represented by counsel of his own choosing. Dunn v. Terry, 216 Va. 234 , 217 S.E.2d 849, 1975 Va. LEXIS 274 (1975) (decided under prior law).

§ 8.01-22. When death or disability occurs as to any of several plaintiffs or defendants.

If a party plaintiff or defendant becomes incapable of prosecuting or defending because of death, insanity, conviction of felony, removal from office, or other reason and there are one or more co-plaintiffs or co-defendants, the court on motion may in its discretion either (i) suspend the case until a successor in interest is appointed in accordance with the Rules of Court, or (ii) sever the action or suit so that the case shall proceed against the remaining parties without delay, with the case as to the former party being continued and tried separately against the successor in interest when he is substituted as provided by the Rules of Court.

History. Code 1950, § 8-146; 1977, c. 617.

REVISERS’ NOTE

Since Rules 2:16 and 3:15 provide an adequate procedure for substitution of a party if he dies, etc., former § 8-146 is altered to give the court discretion to halt the entire proceedings pending the appointment of a successor or to permit the action to proceed against the living parties severing the decedent and preserving a separate action as to him.

Since § 8.01-25 provides that all actions survive, the provision in former § 8-146 regarding the question of survivability has been deleted.

Cross references.

For rule of court as to substitution of parties, see Rule 3:17.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 11, 28, 34, 38.

CASE NOTES

Before appeal is allowed. —

Where the death of a party to a suit or action occurs before an appeal is allowed or writ of error is awarded, the suit or action abates as to the deceased party. If an appeal or writ of error is sought in behalf of the estate of such deceased party, the application must be made by petition of his representative. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920) (decided under prior law).

Convict’s privilege to waive appointment of committee. —

There are no statutes or rules to deny a convict, already within the civil jurisdiction of the court at the time of his felony conviction and incarceration, the privilege of waiving the appointment of a committee and proceeding to trial and judgment in a law action in which he is represented by counsel of his own choosing. Dunn v. Terry, 216 Va. 234 , 217 S.E.2d 849, 1975 Va. LEXIS 274 (1975) (decided under prior law).

Ejectment. —

Husband and wife brought an action of ejectment to recover land. It did not abate when the husband died, but upon his death the cause of action survived to his wife. McMurray v. Dixon, 105 Va. 605 , 54 S.E. 481 , 1906 Va. LEXIS 68 (1906) (decided under prior law).

§ 8.01-23. Decree in suit when number of parties exceeds 30 and one of them dies.

When, in any suit involving a decedent’s estate or a trust, the number of parties exceeds 30, and any one of the parties jointly interested with others in any question arising therein, dies, the court may, notwithstanding, if in its opinion all classes of interests are represented and no one will be prejudiced thereby, proceed to render a decree in such suit as if such party were alive; decreeing to the heirs, devisees, legatees, distributees, or personal representatives, as the case may be, such interest as the deceased person, if alive, would be entitled to. The provisions of § 8.01-322 shall apply to decrees entered hereunder.

History. Code 1950, §§ 8-155, 8-156; 1977, c. 617; 2005, c. 681.

REVISERS’ NOTE

Section 8.01-23 combines former §§ 8-155 and 8-156.

The 2005 amendments.

The 2005 amendment by c. 681, effective January 1, 2006, substituted “involving a decedent’s estate or a trust” for “in equity,” substituted “dies” for “shall die” and made a minor stylistic change.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, § 11.

Article 4. Writ of Scire Facias Abolished.

§ 8.01-24. Writ of scire facias abolished; substitutes therefor.

The writ of scire facias is hereby abolished. Relief heretofore available by scire facias may be obtained by appropriate action or motion pursuant to applicable statutes and Rules of Court.

History. 1977, c. 617.

REVISERS’ NOTE

Scire facias is a cumbersome, obsolete writ which is little understood and whose objectives can be better served by a more direct form of pleading. Thus the writ is abolished and replaced by the motion.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, § 41.

Chapter 3. Actions.

Article 1. Survival and Assignment of Causes of Actions.

§ 8.01-25. Survival of causes of action.

Every cause of action whether legal or equitable, which is cognizable in the Commonwealth of Virginia, shall survive either the death of the person against whom the cause of action is or may be asserted, or the death of the person in whose favor the cause of action existed, or the death of both such persons. Provided that in such an action punitive damages shall not be awarded after the death of the party liable for the injury. Provided, further, that if the cause of action asserted by the decedent in his lifetime was for a personal injury and such decedent dies as a result of the injury complained of with a timely action for damages arising from such injury pending, the action shall be amended in accordance with the provisions of § 8.01-56 .

As used in this section, the term “death” shall include the death of an individual or the termination or dissolution of any other entity.

History. Code 1950, § 8-628; 1950, p. 948; 1952, c. 378; 1954, c. 607; 1964, c. 34; 1977, c. 617.

REVISERS’ NOTE

The section removes various limitations imposed by case and statutory law and provides that all causes of action survive the death of the plaintiff or defendant. Cf. § 64.1-145. Thus the former problem of determining what was indirect and direct injury to property has been eliminated and with it the question of determining whether there was a statute of limitations of one or five years. Compare, e.g., Cover v. Critcher, 143 Va. 357 , 130 S.E. 238 (1925), with Trust Co. v. Fletcher, 152 Va. 868 , 148 S.E. 785 (1929), and Worrie v. Boze, 198 Va. 533 , 95 S.E.2d 192, aff’d on rehearing, 198 Va. 891 , 96 S.E.2d 799 (1957). See Herndon v. Wickham, 198 Va. 824 , 97 S.E.2d 5 (1957) and annotations under former §§ 8-628.1 and 8-24.

The first proviso pertaining to the award of punitive damages codifies case law. See Dalton v. Johnson, 204 Va. 102 , 129 S.E.2d 647 (1963).

The second proviso codifies case law that the Virginia wrongful death statute is not a “survival” statute but creates a new right in the personal representative of the decedent who dies as a result of a previous tortious injury. Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958); Wilson v. Whittacker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

Formerly, in the absence of statute, only causes of action which survive may be assigned. Winston v. Gordon, 115 Va. 899 , 80 S.E. 756 (1914); City of Richmond v. Hanes, 203 Va. 102 , 122 S.E.2d 895 (1961). Assignability has been separated from survivability. See § 8.01-26 .

Cross references.

As to action for goods carried away, or for waste, destruction of, or damage to estate of decedent, see § 64.2-520 .

Law Review.

For discussion of wrongful death action and special damages, see 47 Va. L. Rev. 354 (1961).

For survey of Virginia law on torts for the year 1969-1970, see 56 Va. L. Rev. 1419 (1970).

For survey of Virginia commercial law for the year 1972-1973, see 59 Va. L. Rev. 1426 (1973).

For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

For article, “Civil Rights and ‘Personal Injuries’: Virginia’s Statute of Limitations for Section 1983 Suits,” see 26 Wm. & Mary L. Rev. 199 (1985).

For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

For essay “Bifurcation of Civil Trials,” see 45 U. Rich. L. Rev. 1 (2010).

For note, “The Vote From Beyond the Grave,” see 51 Wm. and Mary L. Rev. 1583 (2010).

For Survey article, “Civil Practice and Procedure,” see 48 U. Rich. L. Rev. 1 (2013).

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 10, 28, 30, 31, 32, 41.

CASE NOTES

Editor’s note.

Some of the cases below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

Legislative intent. —

It was the obvious intent of the legislature to give to survivors of decedents the cause of action set forth in this section rather than have it expire upon the death of the party having same. In re Musgrove, 7 Bankr. 892, 1981 Bankr. LEXIS 5203 (Bankr. W.D. Va. 1981).

The sweeping language of the opening sentence of this section manifests an intent to preserve a right of recovery after the death of either or both of the parties in interest, while the subsequent limiting language has the effect of confining wrongful death relief to that allowable under the wrongful death statutes. Miltier v. Beorn, 696 F. Supp. 1086, 1988 U.S. Dist. LEXIS 11549 (E.D. Va. 1988).

Sections 8.01-21 , 8.01-50 , 8.01-56 and this section compared. —

The requirements of the survival and wrongful death statutes, §§ 8.01-50 , 8.01-56 and this section, apply when the death occurs before a final verdict, whereas § 8.01-21 applies where the death occurs after the verdict. Boyd v. Bulala, 647 F. Supp. 781, 1986 U.S. Dist. LEXIS 18099 (W.D. Va. 1986), amended, 678 F. Supp. 612, 1988 U.S. Dist. LEXIS 1186 (W.D. Va. 1988), aff'd in part and rev'd in part, 877 F.2d 1191, 1989 U.S. App. LEXIS 8364 (4th Cir. 1989).

This section and § 8.01-56 are not in conflict with § 8.01-21 . They were enacted to extend the application of § 8.01-50 , the wrongful death statute, those situations not covered by the original Lord Campbell’s Act, in which a plaintiff who has filed an action for personal injuries, dies of those injuries before a verdict is returned. It was unnecessary at common law to amend, revive, or convert the action of the party who survived the return of a verdict, and it is equally unnecessary under the present statutory scheme. Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670, 6 Va. Law Rep. 1399, 1990 Va. LEXIS 44 (1990).

Death of a child born with birth defects after a medical malpractice verdict did not require converting her claim into one for wrongful death. Section 8.01-21 directly so provides, by directing that in such cases, “judgment may be entered as if [death] had not occurred.” This section and § 8.01-56 are not in conflict. They deal with the situation where death occurs before verdict. Boyd v. Bulala, 905 F.2d 764, 1990 U.S. App. LEXIS 9498 (4th Cir. 1990).

Section changes common law. —

Prior to this section, no action for personal injuries not resulting in death could be maintained against the wrongdoer unless such action was brought by the injured party prior to his death. Predecessor versions of this section changed this rule of common law. Sherley v. Lotz, 200 Va. 173 , 104 S.E.2d 795, 1958 Va. LEXIS 173 (1958) (decided under prior law).

Statute of limitations not changed. —

There was no intent on the part of the legislature when it enacted the former version of this section to change the statute of limitations from one to five years on causes of action for personal injury. Herndon v. Wickham, 198 Va. 824 , 97 S.E.2d 5, 1957 Va. LEXIS 145 (1957); Sherley v. Lotz, 200 Va. 173 , 104 S.E.2d 795, 1958 Va. LEXIS 173 (1958) (decided under prior law).

Standing. —

Testator’s daughters did not have standing to bring the claims asserted because the testator’s son remained the personal representative of the testator’s estate, and he was the only party entitled to bring suit on behalf of the estate; the daughters’ claims relating to the rescission of inter vivos transfers were inherently on behalf of the estate as they would have belonged to the testator during his lifetime. Platt v. Griffith, 299 Va. 690 , 858 S.E.2d 413, 2021 Va. LEXIS 59 (2021).

The cause of action that this section provides shall not be lost is not a new cause. Bagley v. Weaver, 211 Va. 779 , 180 S.E.2d 686, 1971 Va. LEXIS 265 (1971) (decided under prior law).

It is the same cause of action that an injured person was prosecuting or could have prosecuted prior to his death from an unrelated cause. Bagley v. Weaver, 211 Va. 779 , 180 S.E.2d 686, 1971 Va. LEXIS 265 (1971) (decided under prior law).

Actions that survive must exist prior to decedent’s death. —

Survival of actions is limited to those that “existed” prior to a decedent’s death; where estate executor alleged that legal malpractice in drafting the decedent’s testamentary instruments had caused the estate additional tax liability, since damages due to the alleged legal malpractice did not arise until after the decedent’s death, the cause of action did not survive and its dismissal was affirmed. Rutter v. Jones, Blechman, Woltz & Kelly, P.C., 264 Va. 310 , 568 S.E.2d 693, 2002 Va. LEXIS 101 (2002).

Choice of recovery theory in malpractice action. —

The plain language contained in this section and § 8.01-56 unequivocally mandates that a person may not recover for the same injury under the survival statute and the wrongful death statute. There can be but one recovery. Hence, the plaintiffs, as a matter of law, could not have recovered in the underlying tort action against defendants on both theories of wrongful death and survival. Therefore, in malpractice action, at an appropriate time after discovery has been completed, the plaintiffs must be required to elect whether they will proceed against the defendant attorneys on the theory that the attorneys breached a duty owed to the plaintiffs in the prosecution of the wrongful death action or breached a duty owed to the plaintiffs in the prosecution of the survival action. Hendrix v. Daugherty, 249 Va. 540 , 457 S.E.2d 71, 1995 Va. LEXIS 68 (1995).

Although the administrators and the health care provider agreed that the administrators filing a medical malpractice action against the health care providers had to elect between recovering under their survival action claim pursuant to § 8.01-25 and wrongful death claim under § 8.01-50 , which position also was supported under § 8.01-56 , the administrators were entitled to present their claim to the jury and have the jury decide the issue of causation before the administrators had to make that election. As a result, the administrators could recover monetary damages awarded by the jury involving the survival act claim, especially since the verdict awarding no damages on the wrongful death claim understood it could not award damages under both theories. Centra Health, Inc. v. Mullins, 277 Va. 59 , 670 S.E.2d 708, 2009 Va. LEXIS 3 (2009).

Executor of decedent’s estate could not seek accounting as to events occurring after decedent’s death. —

Executor of a decedent’s estate could not seek an accounting from trustees of a marital trust for the decedent’s tangible personal property that was allegedly removed after his death, because § 8.01-25 permits survival only of causes of action existing at the time of the decedent’s death. Campbell v. Harmon, 271 Va. 590 , 628 S.E.2d 308, 2006 Va. LEXIS 52 (2006).

Action for an accounting by trustees. —

Executor of the estate of a decedent who was a lifetime beneficiary of a marital trust had standing to seek an accounting from the trustees as to their administration of the trust during the decedent’s lifetime, because he succeeded to the decedent’s § 8.01-31 right to an accounting by virtue of the survival provisions of this section. Campbell v. Harmon, 271 Va. 590 , 628 S.E.2d 308, 2006 Va. LEXIS 52 (2006).

Coexistence of wrongful death and 42 U.S.C. § 1983 claims. —

The structural relationship between this section and § 8.01-50 shows that under Virginia law, a wrongful death claim can peaceably coexist with a 42 U.S.C. § 1983 claim. Miltier v. Beorn, 696 F. Supp. 1086, 1988 U.S. Dist. LEXIS 11549 (E.D. Va. 1988).

This section defers to the wrongful death statute as the exclusive statement of the grievances that Virginia will recognize when a tort victim dies of her injuries. El-Meswari v. Washington Gas Light Co., 785 F.2d 483, 1986 U.S. App. LEXIS 22681 (4th Cir. 1986).

Under Virginia law, a person could not recover for the same injury under the survival statute and the wrongful death statute if that injury or wrongful act resulted in the victim’s death; because decedent’s daughter had already recovered under the Virginia Wrongful Death Act in a state proceeding, plaintiff could not recover under the Maryland Survival Act, and the district court did not err in concluding that Virginia law barred plaintiff from proceeding under the Maryland Survival Act. Jones v. Prince George's County, 355 Fed. Appx. 724, 2009 U.S. App. LEXIS 26678 (4th Cir. 2009).

Under the new statutory scheme, survivability no longer is germane in determining which statute of limitations applies. This section provides that all causes of action survive the death of the plaintiff or defendant. Moreover, the problem of determining direct or indirect injury has been eliminated. Former § 64.1-145 provided, in part, that: “Any action at law for damages for the . . . destruction of, or damage to any estate of or by the decedent, whether such damage be direct or indirect, may be maintained by or against the decedent’s personal representative. Any such action shall survive pursuant to § 8.01-25 .” Now, under the straightforward provisions of § 8.01-243 B, “[e]very” action for “injury to property” is governed by a five-year statute of limitations. Pigott v. Moran, 231 Va. 76 , 341 S.E.2d 179, 1986 Va. LEXIS 166 (1986).

Recovery for mental anguish, pain, and suffering permitted. —

It was the intent of the General Assembly to permit a recovery for mental anguish, pain, and suffering in causes of action preserved by the former version of this section. Bagley v. Weaver, 211 Va. 779 , 180 S.E.2d 686, 1971 Va. LEXIS 265 (1971) (decided under prior law).

Evidence to support action for such recovery. —

In view of the express elimination of the language which before 1964 excluded a recovery for mental anguish, pain and suffering, the same kind of evidence would be necessary and admissible to support the action that would be proper if the injured person himself were suing. There would be the same elements of damage for the consideration of the jury in assessing the damages, and the evidence would mainly relate to, and the damages be for, the physical and mental suffering of the deceased and the injuries and loss generally sustained by him and his estate. Bagley v. Weaver, 211 Va. 779 , 180 S.E.2d 686, 1971 Va. LEXIS 265 (1971) (decided under prior law).

Recoveries under the predecessor section and § 8.01-50 et seq. Distinguished. —

The limit of recovery in an action under § 8.01-50 et seq. is different from that in the action preserved by the former version of this section. In one, the amount of the recovery is limited by statute, is for the benefit of certain designated beneficiaries, and is free from debts and liabilities. In the other, the limit is the amount of damages that can be proved, is an asset of the decedent’s estate, and is subject to the payment of his debts. Bagley v. Weaver, 211 Va. 779 , 180 S.E.2d 686, 1971 Va. LEXIS 265 (1971) (decided under prior law).

Where two witnesses vary in their statements of fact. —

Where administratrix brought action for personal injuries based on nursing homes treatment of decedent, dismissal of the action prior to completion of administratrix’s evidence deprived her of opportunity to prove damages for personal injury and, therefore, constituted reversible error; although one doctor testified that nursing home’s treatment hastened decedent’s death, the testimony did not leave administratrix with only a wrongful death action; court should have allowed administratrix to proceed with testimony of another doctor that the cause of death was pneumonia since when two or more witnesses introduced by a party litigant vary in their statements of fact, such party has the right to ask the court or jury to accept as true the statements most favorable to him. Lucas v. HCMF Corp., 238 Va. 446 , 384 S.E.2d 92, 6 Va. Law Rep. 601, 1989 Va. LEXIS 151 (1989).

Action fails where officers acted objectively, reasonably. —

Survivor’s cause of action under § 8.01-25 and a wrongful death action under § 8.01-50 failed where a decedent’s sister could not have proved negligent, intentional, or reckless conduct because the court previously found that police officers did not falsely arrest the decedent or use excessive force against him, but that they acted objectively, reasonably. Waller v. City of Danville, No. 4:03CV00039, 2005 U.S. Dist. LEXIS 34584 (W.D. Va. Dec. 12, 2005), aff'd in part and rev'd in part, 212 Fed. Appx. 162, 2006 U.S. App. LEXIS 30799 (4th Cir. 2006).

CIRCUIT COURT OPINIONS

Choice of recovery theory in malpractice action. —

Although an administratrix was permitted to proceed both on a survivorship and a wrongful death claim, she could recover on only one theory pursuant to §§ 8.01-25 and 8.01-56 . There was no reason to prohibit her from arguing contradictory theories of liability pursuant to § 8.01-281 and Va. Sup. Ct. R. 1:4(k). Williams v. Med. Facilities of Am., 75 Va. Cir. 416, 2005 Va. Cir. LEXIS 380 (Virginia Beach Feb. 16, 2005).

Survival of cause of action after death. —

A decedent’s cause of action survives his death, whether or not it is related to the death. If it is related if becomes a wrongful death claim and if it is not related, it is said to survive. Wright v. Eli Lilly & Co., 65 Va. Cir. 485, 2004 Va. Cir. LEXIS 295 (Portsmouth Sept. 21, 2004).

In a case involving the alleged mismanagement of irrevocable trusts, a demurrer was not sustained because the death of a decedent had no bearing on the substance of the claims. The decedent, not his estate, was named as the wrongdoer, the cause of action no doubt arose while the decedent was still alive, and there was no argument that the claim was untimely filed. Burton v. Dolph, 89 Va. Cir. 101, 2014 Va. Cir. LEXIS 129 (Norfolk June 27, 2014).

Bank’s demurrer to a son’s conversion claim was sustained because only the personal representative of a decedent’s estate had standing to bring the claim, and, the son had no ownership interest in the decedent’s deposit accounts; the cause of action existed in the decedent’s favor, and although it could survive under the statute, it would belong to his estate. Lance v. Wells Fargo Bank, N.A., 99 Va. Cir. 115, 2018 Va. Cir. LEXIS 20 (Chesapeake Feb. 21, 2018).

Alternative pleading with a wrongful death action permitted. —

Because the responses sought by a hospital from a decedent’s survivor attempted to force the survivor to proceed solely under either § 8.01-50 or § 8.01-25 , which was contrary to § 8.01-281 , and improperly forced the survivor to elect his remedies, his answers to two requests for admissions were deemed sufficient. Richard Montgomery Bros. v. Rockingham Mem. Hosp., 75 Va. Cir. 85, 2008 Va. Cir. LEXIS 29 (Rockingham County Mar. 5, 2008).

Complaint stated a cause of action. —

Defendant officers’ demurrer to count I of plaintiff’s complaint, which alleged unlawful seizure, was sustained because, although no law or self-executing provision of the Virginia Constitution established a private cause of action for unlawful seizure, count I may have stated a claim for the intentional tort of false imprisonment. Chandler v. Routin, 63 Va. Cir. 139, 2003 Va. Cir. LEXIS 347 (Norfolk Sept. 23, 2003).

§ 8.01-26. Assignment of causes of action.

Only those causes of action for damage to real or personal property, whether such damage be direct or indirect, and causes of action ex contractu are assignable. The provisions of this section shall not prohibit any injured party or his estate from making a voluntary assignment of the proceeds or anticipated proceeds of any court award or settlement as security for new value given in consideration of such voluntary assignment.

History. 1977, c. 617; 1991, c. 256.

REVISERS’ NOTE

Formerly, the test of assignability was survival, and only those causes of action which would survive to the personal representative were assignable; actions which survived and therefore were assignable were those which grew out of breach of contract or were for direct injury to real or personal property. See Winston v. Gordon, 115 Va. 899 , 80 S.E. 756 (1914); Richmond Redevelopment & Hous. Auth. v. Laburnum Constr. Corp., 195 Va. 827 , 80 S.E.2d 574 (1954).

Section 8.01-25 allows all causes of actions to survive. Section 8.01-26 separates the issue of assignability from that of survival — i.e. no longer will an action be assignable simply because it survives. Instead, unless the action falls within § 8.01-26 , it is not assignable even though it is an action which survives under § 8.01-25 . However, with the exception of the elimination of the illogical distinction between direct and indirect damage to property, the section codifies existing case law on the assignment of actions. See Birmingham v. Chesapeake & O.R.R., 98 Va. 548 , 37 S.E. 17 (1900) also cited in Maynard v. General Elec. Co., 486 F.2d 538 at 540 (5th Cir. 1973); Friedman v. People’s Serv. Drug Store, 208 Va. 700 , 160 S.E.2d 563 (1968).

Law Review.

For note, “Assignability of a Tort Cause of Action in Virginia,” see 41 Va. L. Rev. 687 (1955).

For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Assignments, §§ 3, 7, 14.

CASE NOTES

Tort claims for interference with business are assignable, since the right to do business is a valuable property right. Grey Line Auto Parts, Inc. v. Snead, 1 Bankr. 551, 1979 Bankr. LEXIS 753 (Bankr. E.D. Va. 1979).

Claim under Federal Employers Liability Act. —

The language of this section makes it clear that an unliquidated and contingent claim such as a Federal Employers Liability Act claim is neither assignable nor subject to the reach of creditor process under Virginia law and is therefore exempt property pursuant to 11 U.S.C. § 522(b)(2)(A). In re Musgrove, 7 Bankr. 892, 1981 Bankr. LEXIS 5203 (Bankr. W.D. Va. 1981).

Legal malpractice claims not assignable. —

Section specifying which causes of action are assignable does not abrogate the common law rule which prohibits the assignment of legal malpractice claims. MNC Credit Corp. v. Sickels, 255 Va. 314 , 497 S.E.2d 331, 1998 Va. LEXIS 49 (1998).

Estate beneficiary lacked standing to pursue a legal malpractice claim against the attorney representing her mother’s estate because § 8.01-26 precluded assignment of legal malpractice claims, and in any event, the attorney represented the estate, not the beneficiary. Johnson v. Hart, 279 Va. 617 , 692 S.E.2d 239, 2010 Va. LEXIS 55 (2010).

Assignment of settlement proceeds or insurance benefits distinguished. —

Although this section prohibits the assignment of a cause of action for personal injuries, there is a legally significant distinction between an assignment of a personal injury cause of action and an assignment of the settlement proceeds or insurance benefits thereof. Community Hosp. v. Musser, 24 Bankr. 913 (W.D. Va. 1982).

Assignment of proceeds of personal injury cause of action sub judice is permissible. In re Duty, 78 Bankr. 111, 1987 Bankr. LEXIS 1523 (Bankr. E.D. Va. 1987).

Applicability to hospitals seeking recovery limited to value of services actually rendered. —

The reasons underlying the common-law rule against assignment of tort claims (now codified in this section), namely, the prevention of champerty and maintenance, do not support its application to hospitals seeking recoveries limited to the value of services actually supplied to the debtors, where the debtors retained complete control over their personal injury cases, the hospitals’ rights exist only in the proceeds, not in the debtors’ causes of action, and the hospitals had no right to proceed against the third-party tort-feasors even if the debtors decided not to pursue their tort claims. Community Hosp. v. Musser, 24 Bankr. 913 (W.D. Va. 1982).

Equitable assignment to hospital of sums to be recovered from tort-feasor. —

The prohibition against assignments of causes of action for personal injury does not proscribe a hospital from obtaining an equitable assignment of the sums to be recovered by an individual from a tort-feasor to the extent of the value of the services provided by the hospital in treatment of the individual’s personal injuries. Community Hosp. v. Musser, 24 Bankr. 913 (W.D. Va. 1982).

Contract claims for real estate commissions. —

Because assignments of individual real estate agents’ contract claims against their former employer to their new employer were permissible and because the applicable Virginia Real Estate Regulations neither expressly, nor implicitly by their purpose, prohibited the assignment of claims of this sort, the assignments were valid under Virginia law. Long & Foster Real Estate, Inc. v. NRT Mid-Atlantic, Inc., 357 F. Supp. 2d 911, 2005 U.S. Dist. LEXIS 2524 (E.D. Va. 2005).

Assignment of personal injury claim invalid where import of act not understood. —

Purported assignment of a personal injury claim executed by a native of the Philippines with a halting grasp of English at the direction of the hospital which was treating him for his extensive injuries, the import of which was not understood by the assignor, was invalid under this section. Roanoke Mem. Hosp. Ass'n v. Baylon, 21 Bankr. 54, 1982 Bankr. LEXIS 4705 (Bankr. W.D. Va.), aff'd, 24 Bankr. 913, 1982 U.S. Dist. LEXIS 15805 (W.D. Va. 1982).

A cause of action for wrongful death is an asset of the bankruptcy estate and may not be assigned. In re Tidwell, 19 Bankr. 846, 1982 Bankr. LEXIS 4257 (Bankr. E.D. Va. 1982).

Guarantor’s claim. —

Co-guarantor of debtor’s obligation to a lender was properly assigned the right to enforce the nondischargeability, under 11 U.S.C.S. § 523(a)(4), of the debtor’s guaranty of the same debt under §§ 8.01-26 and 49-27 , and a settlement agreement with the lender. Padgett v. Hadley (In re Hadley), No. 09-73717-FJS, No. APN: 09-07140-FJS, 2011 Bankr. LEXIS 3188 (Bankr. E.D. Va. Aug. 19, 2011).

CIRCUIT COURT OPINIONS

Warranty claims are ex-contractu and assignable. —

Warranty (including implied warranty) claims are considered ex contractu and are therefore assignable under § 8.01-26 . Bay Point Condo. Ass'n v. RML Corp., 57 Va. Cir. 295, 2002 Va. Cir. LEXIS 10 (Norfolk Jan. 28, 2002).

Assignment of personal injury claim valid and enforceable despite bankruptcy discharge. —

Injured plaintiff had executed, in favor of a hospital to which she owed medical bills, an assignment of the proceeds of any personal injury award she recovered. The assignment survived plaintiff’s bankruptcy discharge and was valid, because the assignment of the proceeds of a personal injury award, which are uncertain and contingent, is not the same as the assignment of a personal injury cause of action, which is barred by § 8.01-26 . Dodd v. Lang, 71 Va. Cir. 235, 2006 Va. Cir. LEXIS 151 (Roanoke June 29, 2006).

No assignment of cause of action. —

Bank’s demurrer to a son’s conversion claim was sustained because only the personal representative of a decedent’s estate had standing to bring the claim; a reading of the power of attorney the decedent gave the son was clear that the son was given authority to sue in the decedent’s name, but the conversion suit was brought in the son’s personal capacity, and there was no allegation that any cause of action was assigned to him personally. Lance v. Wells Fargo Bank, N.A., 99 Va. Cir. 115, 2018 Va. Cir. LEXIS 20 (Chesapeake Feb. 21, 2018).

OPINIONS OF THE ATTORNEY GENERAL

Assignment of medical benefits payments. —

Assignments of medical benefits payable under automobile insurance policies where the policyholder assigns these benefits to a chiropractor who provided treatment covered by the policy are enforceable. Provisions of insurance contracts seeking to limit or preclude this kind of assignment are unenforceable so long as the assignment does not materially alter the risk or obligation of the insurer. See opinion of Attorney General to The Honorable Bill Janis, Member, House of Delegates, 10-066, (9/24/10).

Article 2. Actions on Contracts Generally.

§ 8.01-27. Civil action on note or writing promising to pay money.

A civil action may be maintained upon any note or writing by which there is a promise, undertaking, or obligation to pay money, if the same be signed by the party who is to be charged thereby, or his agent. The action may also be maintained on any such note or writing for any past due installment on a debt payable in installments, although other installments thereof be not due.

History. Code 1950, § 8-509; 1954, c. 333; 1977, c. 617.

Cross references.

For rule of court as to commencement of civil actions, see Rule 3:2.

Law Review.

For article, “Reconsidering Inducement,” see 76 Va. L. Rev. 877 (1990).

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Assumpsit, §§ 2, 41.

§ 8.01-27.1. Additional recovery in certain civil actions concerning checks or rejected electronic funds transfers.

  1. Except as otherwise provided in Chapter 12 (§ 55.1-1200 et seq.) or Chapter 14 (§ 55.1-1400 et seq.) of Title 55.1, in any civil claim or action made or brought against the drawer of a check, draft or order, payment of which has been refused by the drawee depository because of lack of funds in or credit with such drawee depository, or because such check, draft or order was returned because of a stop-payment order placed in bad faith on the check, draft or order by the drawer, the holder or his agent shall be entitled to claim, in addition to the face amount of the check (i) legal interest from the date of the check, (ii) the protest or bad check return fee, if any, charged to the holder by his bank or other depository, (iii) a processing charge of $50, and (iv) reasonable attorney’s fees if awarded by the court.
  2. Except as otherwise provided in Chapter 12 (§ 55.1-1200 et seq.) or Chapter 14 (§ 55.1-1400 et seq.) of Title 55.1, any holder of a check, draft or order, payment of which has been refused by the drawee for insufficient funds or credit or because of a stop-payment order placed in bad faith, who charges the drawer amounts in excess of those authorized in subsection A on account of payment being so refused shall, upon demand, be liable to the drawer for the lesser of (i) $50 plus the excess of the authorized amount or (ii) twice the amount charged in excess of the authorized amount.
  3. If an electronic funds transfer has been rejected because of insufficient funds or a stop-payment order has been placed in bad faith by the authorizing party, the authorizing party and the payee shall have the same rights and remedies as if the drawer had issued a bad check under subsection B. For purposes of this subsection, “electronic funds transfer” has the same meaning as provided in 15 U.S.C. § 1693(a).

History. 1981, c. 230; 1992, c. 238; 1996, c. 334; 2003, c. 233; 2008, c. 489; 2009, c. 182; 2013, c. 63.

Cross references.

As to criminal penalty for issuing bad checks, see § 18.2-181 .

Editor’s note.

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted “Chapter 12 (§ 55.1-1200 et seq.) or Chapter 14 (§ 55.1-1400 et seq.) of Title 55.1” for “Chapter 13 (§ 55-217 et seq.) or Chapter 13.2 (§ 55-248.2 et seq.) of Title 55” twice.

The 2003 amendments.

The 2003 amendment by c. 233 deleted “and” at the end of clause A (ii); substituted “$35, and” for “twenty-five dollars” at the end of clause A (iii); added clause A (iv); and substituted “$35” for “twenty-five dollars” in clause B (i).

The 2008 amendments.

The 2008 amendment by c. 489, in subsection A, inserted “Except as otherwise provided in Chapter 13 (§ 55-217 et seq.) or Chapter 13.2 (§ 55-248.2 et seq.) of Title 55,” at the beginning and substituted “$50” for “$35” in clause (iii); in subsection B, inserted “Except as otherwise provided in Chapter 13 (§ 55-217 et seq.) or Chapter 13.2 (§ 55-248.2 et seq.) of Title 55” at the beginning and substituted “$50” for “$30” at the beginning of clause (i).

The 2009 amendments.

The 2009 amendment by c. 182 inserted “or because such check, draft or order was returned because of a stop-payment order placed in bad faith on the check, draft or order by the drawer” in subsection A; and inserted “or because of a stop-payment order placed in bad faith” in subsection B.

The 2013 amendments.

The 2013 amendment by c. 63 added subsection C.

Law Review.

For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, see “Civil Practice and Procedure,” 26 U. Rich. L. Rev. 679 (1992).

Michie’s Jurisprudence.

For related discussion, see 3A M.J. Banks and Banking, § 89.

OPINIONS OF THE ATTORNEY GENERAL

Bank or savings institution may impose returned check processing charge in such amount as is agreed by borrower. —

Section 6.1-330.63 A [now see § 6.2-432 et seq.] permits a bank or savings institution to impose a returned check processing charge in such amount as is agreed by the borrower, regardless of limitations on returned check processing charges contained in § 8.01-27.1 . See opinion of Attorney General to The Honorable Walter A. Stosch, Member, Senate of Virginia, 01-122 (11/29/01).

§ 8.01-27.2. Civil recovery for giving bad check.

  1. Except as otherwise provided in Chapter 12 (§ 55.1-1200 et seq.) or Chapter 14 (§ 55.1-1400 et seq.) of Title 55.1, in the event a check, draft or order, the payment of which has been refused by the drawee because of lack of funds in or credit with such drawee, is not paid in full within thirty days after receipt by the drawer of (i) written notice by registered, certified, or regular mail with the sender retaining an affidavit of service of mailing or other sufficient proof of mailing, which may be a U.S. Postal Certificate of Mailing or (ii) if for nonpayment of rent under § 55.1-1245 or 55.1-1415 , written notice in accordance therewith, from the payee that the check, draft or order has been returned unpaid, the payee may recover from the drawer in a civil action brought by the filing of a warrant in debt, the lesser of $250 or three times the amount of the check, draft or order. The amount recovered as authorized by this section shall be in addition to the amounts authorized for recovery under § 8.01-27.1 . No action may be initiated under this section if any action has been initiated under § 18.2-181 . The drawer shall be obligated to pay the cost of service and the cost of mailing, as applicable.
  2. If an electronic funds transfer has been rejected because of insufficient funds or a stop-payment order has been placed in bad faith by the authorizing party, the authorizing party and the payee shall have the same rights and remedies as if the drawer had issued a bad check under § 8.01-27.1 . For purposes of this subsection, “electronic funds transfer” has the same meaning as provided in 15 U.S.C. § 1693(a).

History. 1985, c. 579; 1988, c. 433; 1992, c. 501; 2002, c. 763; 2008, c. 489; 2013, c. 63.

Editor’s note.

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted “Chapter 12 (§ 55.1-1200 et seq.) or Chapter 14 (§ 55.1-1400 et seq.) of Title 55.1” for “Chapter 13 (§ 55-217 et seq.) or Chapter 13.2 (§ 55-248.2 et seq.) of Title 55” and “55.1-1245 or 55.1-1415 ” for “55-225 or 55-248.31.”

The 2002 amendments.

The 2002 amendment by c. 763 inserted “an affidavit of service of mailing or other” following “retaining” in the first sentence.

The 2008 amendments.

The 2008 amendment by c. 489, in the first sentence, inserted “Except as otherwise provided in Chapter 13 (§ 55-217 et seq.) or Chapter 13.2 (§ 55-248.2 et seq.) of Title 55,” at the beginning, inserted the clause (i) designation, and inserted clause (ii).

The 2013 amendments.

The 2013 amendment by c. 63 added the subsection A designator and subsection B.

Michie’s Jurisprudence.

For related discussion, see 3A M.J. Banks and Banking, § 89.

§ 8.01-27.3. Evidence in actions regarding issuance of bad check.

In any civil action growing out of an arrest under § 18.2-181 or § 18.2-182 , no evidence of statements or representations as to the status of the check, draft, order or deposit involved, or of any collateral agreement with reference to the check, draft, or order, shall be admissible unless such statement, or representation, or collateral agreement, is written upon the instrument at the time it is given by the drawer.

History. 2004, c. 462.

§ 8.01-27.4. Civil recovery for professional services.

In the event any insured or enrollee of an accident and sickness insurance policy, health services plan or health maintenance organization receives payment from the insurance company, health services plan or health maintenance organization licensed under Title 38.2, pursuant to a claim that involves the provision of services to the insured or enrollee by a professional licensed under Title 54.1, and within 30 days of receipt of the payment does not forward the payment with the necessary endorsement to the professional for application towards the unpaid balance on the professional services subject to the claim, the professional may in a civil action brought by the filing of a warrant in debt recover from the insured or enrollee the lesser of $250 or three times the amount of the payment, together with the amount of the payment. The amount recovered as authorized by this section shall be in addition to the amounts authorized for recovery under § 8.01-27.1 . No action may be initiated under this section unless the professional, prior to receipt of payment by the insured or enrollee, forwards to the insured or enrollee via first class mail an invoice for services rendered.

History. 2004, c. 909; 2005, c. 141.

The number of this section was assigned by the Virginia Code Commission, the number in the 2004 acts having been 8.01-27.3 .

The 2005 amendments.

The 2005 amendment by c. 141 substituted “§ 8.01-27.1 ” for “§ 8.01-271.1 .”

§ 8.01-27.5. Duty of in-network providers to submit claims to health insurers; liability of covered patients for unbilled health care services.

  1. As used in this section:“Covered patient” means a patient whose health care services are covered under terms of a health care policy.“Health care policy” means any health care plan, subscription contract, evidence of coverage, certificate, health services plan, medical or hospital services plan, accident and sickness insurance policy or certificate, or other similar certificate, policy, contract, or arrangement, and any endorsement or rider thereto, offered, arranged, issued, or administered by a health insurer to an individual or a group contract holder to cover all or a portion of the cost of individuals, or their eligible dependents, receiving covered health care services. “Health care policy” includes coverages issued pursuant to (i) Chapter 28 (§ 2.2-2800 et seq.) of Title 2.2 (state employees); (ii) § 2.2-1204 (local choice); (iii) 5 U.S.C. § 8901 et seq. (federal employees); (iv) an employee welfare benefit plan as defined in 29 U.S.C. § 1002 (1) of the Employee Retirement Income Security Act of 1974 (ERISA) that is self-insured or self-funded; and (v) Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (Medicare), Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (Medicaid), or Title XXI of the Social Security Act, 42 U.S.C. § 1397aa et seq. (CHIP). “Health care policy” does not include (a) Chapter 55 of Title 10 of the United States Code, 10 U.S.C. § 1071 et seq. (TRICARE); (b) subscription contracts for one or more dental or optometric services plans that are subject to Chapter 45 (§ 38.2-4500 et seq.) of Title 38.2; (c) insurance policies that provide coverage, singly or in combination, for death, dismemberment, disability, or hospital and medical care caused by or necessitated as a result of accident or specified kinds of accidents, including student accident, sports accident, blanket accident, specific accident, and accidental death and dismemberment policies; (d) credit life insurance and credit accident and sickness insurance issued pursuant to Chapter 37.1 (§ 38.2-3717 et seq.) of Title 38.2; (e) insurance policies that provide payments when an insured is disabled or unable to work because of illness, disease, or injury, including incidental benefits; (f) long-term care insurance as defined in § 38.2-5200; (g) plans providing only limited health care services under § 38.2-4300 unless offered by endorsement or rider to a group health benefit plan; (h) TRICARE supplement, Medicare supplement, or workers’ compensation coverages; or (i) medical expense coverage issued pursuant to § 38.2-2201.“Health care provider” has the same meaning ascribed to the term in § 8.01-581.1 .“Health care services” means items or services furnished to any individual for the purpose of preventing, alleviating, curing, or healing human illness, injury, or physical disability.“Health insurer” means any entity that is the issuer or sponsor of a health care policy.“In-network provider” means a health care provider that is employed by or has entered into a provider agreement with the health insurer that has issued the health care policy or is a participating provider with such health insurer, under which agreement or conditions of participation the health care provider has agreed to provide health care services to covered patients.“Patient” means an individual who receives health care services from a health care provider, or any person authorized by law to consent on behalf of the individual incapable of making an informed decision, or, in the case of a minor child, the parent or parents having custody of the child or the child’s legal guardian, or as otherwise provided by law.“Provider agreement” means a contract, agreement, or arrangement between a health care provider and a health insurer, or a health insurer’s network, provider panel, intermediary, or representative, under which the health care provider has agreed to provide health care services to patients with coverage under a health care policy issued by the health insurer and to accept payment from the health insurer for the health care services provided.
  2. An in-network provider that provides health care services to a covered patient shall submit its claim to the health insurer for the health care services in accordance with the terms of the applicable provider agreement or as permitted under applicable federal or state laws or regulations, provided that the covered patient provides the in-network provider with information required by the terms of the covered patient’s health care policy’s plan documents, including the information that is required to verify the individual’s coverage under the health care policy, within not fewer than 21 business days before the deadline for the in-network provider to submit its claim to the health insurer as required by the terms of the provider agreement. If an in-network provider does not submit its claim to the health insurer in accordance with the requirements of this subsection, then (i) the covered patient shall have no obligation to pay for health care services for which the in-network provider was required to submit its claim, (ii) the in-network provider shall not have the benefit of the liens provided by §§ 8.01-66.2 and 8.01-66.9 with regard to health care services for which the in-network provider was required to submit its claim, and (iii) the in-network provider shall be prohibited from recovering payment for any of the health care services for which it was required to submit its claim from an insurer providing medical expense benefits to the covered patient under a policy of motor vehicle liability insurance pursuant to § 38.2-2201, by exercising an assignment of the covered patient’s rights to the medical expense benefits or by other means. If the in-network provider submits its claim to the health insurer in accordance with the requirements of this subsection, the covered patient or the health insurer shall be obligated to pay for the health care services in accordance with the terms of the provider agreement or health care policy’s plan documents. To the extent that self-insured or self-funded plans governed by ERISA or Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (Medicare), Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (Medicaid), or Title XXI of the Social Security Act, 42 U.S.C. § 1397aa et seq. (CHIP) provide otherwise, health care providers shall be permitted to submit claims and coordinate benefits as provided for in the provider agreements or plan documents or as required under applicable federal and state laws and regulations.

History. 2013, c. 700; 2014, cc. 157, 417; 2018, c. 788.

The 2014 amendments.

The 2014 amendments by cc. 157 and 417 are identical, and in the definition of “Health care policy” under subsection A inserted “(Medicaid)” and substituted “Title XXI of the Social Security Act, 42 U.S.C. § 1397aa et seq. (CHIP)” for “Title XX of the Social Security Act, 42 U.S.C. § 1397 et seq. (Medicaid).”

The 2018 amendments.

The 2018 amendment by c. 788, in subsection A, in the definition for “Health care policy,” added clause (v) in the second sentence, and deleted the same references from the beginning of clause (a) in the third sentence; in the definition for “In-network provider,” inserted “or is a participating provider with such health insurer” and “or conditions of participation”; in subsection B, inserted “or as permitted under applicable federal or state laws or regulations” in the first sentence, and in the last sentence, inserted “or Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (Medicare), Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (Medicaid), or Title XXI of the Social Security Act, 42 U.S.C. § 1397aa et seq. (CHIP)” and added “or as required under applicable federal and state laws and regulation.”

§ 8.01-28. When judgment to be given in action upon contract or note unless defendant appears and denies claim under oath.

In any action at law on a note or contract, express or implied, for the payment of money, or unlawful detainer pursuant to § 55.1-1245 or 55.1-1415 for the payment of money or possession of the premises, or both, if (i) the plaintiff files with his motion for judgment or civil warrant an affidavit made by himself or his agent, stating therein to the best of the affiant’s belief the amount of the plaintiff’s claim, that such amount is justly due, and the time from which plaintiff claims interest, and (ii) a copy of the affidavit together with a copy of any account filed with the motion for judgment or warrant and, in actions pursuant to § 55-1245 or 55-1415, proof of required notices is served on the defendant as provided in § 8.01-296 at the time a copy of the motion for judgment or warrant is so served, the plaintiff shall be entitled to a judgment on the affidavit and statement of account without further evidence unless the defendant either appears and pleads under oath or files with the court before the return date an affidavit or responsive pleading denying that the plaintiff is entitled to recover from the defendant on the claim. A denial by the defendant in general district court need not be in writing. The plaintiff or defendant shall, on motion, be granted a continuance whenever the defendant appears and pleads. If the defendant’s pleading or affidavit admits that the plaintiff is entitled to recover from the defendant a sum certain less than that stated in the affidavit filed by the plaintiff, judgment may be taken by the plaintiff for the sum so admitted to be due, and the case will be tried as to the residue.

In the event of a defect in the affidavit, the plaintiff shall be entitled to a continuance.

History. Code 1950, § 8-511; 1954, c. 610; 1960, c. 426; 1977, c. 617; 1983, c. 136; 1991, cc. 56, 503; 2014, c. 688.

REVISERS’ NOTE

“Plea” in former § 8-511 has been changed to “pleading” since the former word might be interpreted to require the defendant to file a “plea” rather than to use an answer or grounds of defense.

Cross references.

As to judgment for defendant in circuit court when plaintiff is entitled to less than $100, see § 17.1-514 .

For rule of court as to commencement of civil actions, see Rule 3:2.

For rules as to answers, pleas, demurrers and motions, see Rule 3:8.

For rule of court on default, and inquiry as to damages, see Rule 3:19.

Editor’s note.

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at that direction of the Virginia Code Commission: substituted “55.1-1245 or 55.1-1415 ” for “55-225 or 55-248.31” twice.

The 2014 amendments.

The 2014 amendment by c. 688 made minor stylistic changes in the first paragraph; and added the second paragraph.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, § 3.

CASE NOTES

Editor’s note.

Some of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

The purpose of this section, like that of its ancestors, is to expedite the adjudication of certain claims for the payment of money by preventing the delay that results from the dilatory assertion of sham defenses. Sheets v. Ragsdale, 220 Va. 322 , 257 S.E.2d 858, 1979 Va. LEXIS 267 (1979).

This section was intended to prevent delay caused to plaintiffs by continuances upon dilatory pleadings when no real defenses exist, and to simplify and shorten the proceedings. Grigg v. Dalsheimer, 88 Va. 508 , 13 S.E. 993 , 1891 Va. LEXIS 63 (1891); L.E. Mumford Banking Co. v. Farmers & Merchants Bank, 116 Va. 449 , 82 S.E. 112 , 1914 Va. LEXIS 50 (1914); Gehl v. Baker, 121 Va. 23 , 92 S.E. 852 , 1917 Va. LEXIS 5 (1917).

Section and Rule 1:10 construed together. —

This section, relating to when a plaintiff is to be granted judgment in an action for payment of money in which the defendant fails to deny plaintiff’s claim under oath, and Rule 1:10, providing that the statutory benefit provided a plaintiff will be waived unless the plaintiff timely claims it, read together in light of their respective histories and prevailing case law, are fully compatible and complementary. This section creates only an optional benefit; Rule 1:10 simply defines one mode of waiver. Sheets v. Ragsdale, 220 Va. 322 , 257 S.E.2d 858, 1979 Va. LEXIS 267 (1979).

Substantial compliance is sufficient. —

This section was enacted to prevent the filing of sham pleadings merely for delay, and a substantial compliance with its provisions is all that is required. Carpenter v. Gray, 113 Va. 518 , 75 S.E. 300 , 1912 Va. LEXIS 66 (1912); Paris v. Brown, 143 Va. 896 , 129 S.E. 678 , 1925 Va. LEXIS 312 (1925) (see also, Levitin v. Norfolk Nat’l Bank, 163 Va. 694 , 177 S.E. 205 (1934)).

And strict rule as to affidavits is not to be applied. —

The strict rule applied in construing affidavits in attachment cases in equity, where the jurisdiction of the court is involved, is not to be applied to the affidavit allowed by this section. Carpenter v. Gray, 113 Va. 518 , 75 S.E. 300 , 1912 Va. LEXIS 66 (1912).

The affidavit need not in express terms state that the affiant is the plaintiff in the action, but is sufficient if the language plainly shows that fact. Carpenter v. Gray, 113 Va. 518 , 75 S.E. 300 , 1912 Va. LEXIS 66 (1912).

It should state time from which interest is claimed. —

The affidavit filed with a motion under this section should state the time from which the plaintiff claims interest. Merriman Co. v. Thomas & Co., 103 Va. 24 , 48 S.E. 490 , 1904 Va. LEXIS 3 (1904).

And time stated in affidavit is controlling. —

The fact that an account filed with a motion claimed interest from January 1, 1910, did not affect the validity of the affidavit filed under this section, which claimed interest from March 1, 1910, since the date fixed by the latter was in favor of the defendant, and would control in entering up judgment if no defense was made. Carpenter v. Gray, 113 Va. 518 , 75 S.E. 300 , 1912 Va. LEXIS 66 (1912).

Defendant must file written pleading denying indebtedness. —

The final sentence of the statute and the appended revisers’ note make it evident that the legislative purpose is to place upon the defendant the burden of filing a written pleading under oath, denying his indebtedness, if he wishes to preclude the entry of judgment on the affidavit without further evidence. Snead v. Bendigo, 240 Va. 399 , 397 S.E.2d 849, 7 Va. Law Rep. 812, 1990 Va. LEXIS 139 (1990).

Affidavit of bookkeeper is insufficient. —

This section requires the affidavit of the plaintiff or his agent, and, in the absence of evidence on the subject, a “bookkeeper” will not be held to be such agent. Merriman Co. v. Thomas & Co., 103 Va. 24 , 48 S.E. 490 , 1904 Va. LEXIS 3 (1904); Taylor v. Sutherlin-Meade Tobacco Co., 107 Va. 787 , 60 S.E. 132 , 1908 Va. LEXIS 141 (1908).

An affidavit “that the matters stated in the annexed pleadings are true” is a substantial compliance with the provisions of this section. Jackson v. Dotson, 110 Va. 46 , 65 S.E. 484 , 1909 Va. LEXIS 115 (1909).

Section may be waived. —

A plaintiff in an action may waive, or be estopped from asserting, his right to have judgment entered in his favor for the amount claimed by him in the affidavit filed with his motion, although the defendant has failed to comply with the provisions of this section entitling him to make defense to the claim asserted, and such waiver may be express or implied. Carpenter v. Gray, 113 Va. 518 , 75 S.E. 300 , 1912 Va. LEXIS 66 (1912).

The benefit this section bestows is not self-executing; it becomes available to the plaintiff only if he elects to claim it and does so in the manner the section prescribes. Even then, the statutory benefit is not an indefeasible right, but the verification requirement may be waived by the plaintiff either expressly or by implication, or he may by his conduct be estopped to take advantage of it. Sheets v. Ragsdale, 220 Va. 322 , 257 S.E.2d 858, 1979 Va. LEXIS 267 (1979).

Failure to move to strike unverified pleading within seven days held waiver. —

Where plaintiff failed, under Rule 1:10, to move to strike defendants’ pleading for want of verification within seven days after it was filed, plaintiff waived the verification requirement and the trial court erred in granting default judgment. Sheets v. Ragsdale, 220 Va. 322 , 257 S.E.2d 858, 1979 Va. LEXIS 267 (1979).

Plaintiff may be estopped from claiming benefits of this section. L.E. Mumford Banking Co. v. Farmers & Merchants Bank, 116 Va. 449 , 82 S.E. 112 , 1914 Va. LEXIS 50 (1914).

Consenting to or accepting continuance is waiver. —

A plaintiff may, either expressly or by implication, waive compliance on the part of the defendant with the requirements of this section, or may by his conduct be estopped from taking advantage of its terms. Consenting to, or accepting without objection, a continuance of the case, are familiar methods of waiving the provisions of the section. Gehl v. Baker, 121 Va. 23 , 92 S.E. 852 , 1917 Va. LEXIS 5 (1917).

Failure to object to unsworn pleadings. —

This section is for the benefit of the plaintiff, and may be waived by him, and it will be deemed to have been waived where he not only makes no objection when the pleading is tendered without a sufficient affidavit, but accepts without objection a continuance of the case until the next term of the court, “with leave to the defendant to file within fifteen days his grounds of defense.” Jackson v. Dotson, 110 Va. 46 , 65 S.E. 484 , 1909 Va. LEXIS 115 (1909).

Where pleadings withdrawn and new pleadings tendered. —

If a plaintiff files with his declaration the affidavit prescribed by this section, no pleadings can be filed by the defendant which are not accompanied by the affidavit required of him by this section, unless the affidavit has been waived, and although pleadings have been filed unaccompanied by such an affidavit without objection on the part of the plaintiff, yet if they are withdrawn and new pleadings are tendered by the defendant, the plaintiff may insist on the lack of an affidavit as a valid objection to the new pleadings. Spencer v. Field, 97 Va. 38 , 33 S.E. 380 , 1899 Va. LEXIS 8 (1899).

Plaintiff has no duty to inform defendant of affidavit filed nor of errors. —

In opposing a motion for a continuance made by a defendant who has not complied with the provisions of this section, it is not necessary for the plaintiff’s counsel to call defendant’s attention to the fact, which a casual observance of the plaintiff’s pleading would have disclosed, that there was an account and affidavit filed with the declaration; neither is it his duty to ask the court to correct an error of the clerk, either in taking the rules or in placing the case on the wrong docket. The plaintiff is not responsible for such errors, and cannot be prejudiced by them. Carpenter v. Gray, 113 Va. 518 , 75 S.E. 300 , 1912 Va. LEXIS 66 (1912).

Judgment entered for plaintiff after unsworn pleadings stricken is valid. —

Where a plaintiff files with his declaration the affidavit prescribed by this section, and the defendant files his pleadings without affidavit, and the pleadings are stricken out, and a subsequent pleading with affidavit is rejected and final judgment given for the plaintiff, the judgment is not void. Whether it is erroneous or not, quaere. Grigg v. Dalsheimer, 88 Va. 508 , 13 S.E. 993 , 1891 Va. LEXIS 63 (1891).

There is no presumption that defendant filed affidavit. —

Where, on appeal, the record is silent as to an affidavit by defendant, there is no presumption that any such was filed. Spencer v. Field, 97 Va. 38 , 33 S.E. 380 , 1899 Va. LEXIS 8 (1899).

OPINIONS OF THE ATTORNEY GENERAL

“Agent.” —

“Agent,” as used in this section, includes a plaintiff’s attorney in a debt collection case; therefore, plaintiff’s attorney may sign and file an affidavit stating plaintiff’s claim amount. See opinion of Attorney General to Ms. Karen A. Gould, Executive Director and Chief Operating Officer Virginia State Bar, 08-100, 2009 Va. AG LEXIS 14 (2/25/09).

§ 8.01-29. Procedure in actions on annuity and installment bonds, and other actions for penalties for nonperformance.

In an action on an annuity bond, or a bond for money payable by installments, when there are further payments of the annuity, or further installments to become due after the commencement of the action, or in any other action for a penalty for the nonperformance of any condition, covenant, or agreement, the plaintiff may assign as many breaches as he may think fit, and shall, in his motion for judgment assign the specific breaches for which the action is brought. The jury impaneled in any such action shall ascertain the damages sustained, or the sum due, by reason of the breaches assigned, and judgment shall be entered for the penalty, to be discharged by the payment of what is so ascertained, and such further sums as may be afterwards assessed. Motion may be made by any person injured against the defendant and, for what may be assessed or found due upon the new breach or breaches assigned, execution may be awarded.

History. Code 1950, § 8-513; 1954, c. 333; 1977, c. 617.

REVISERS’ NOTE

The only significant change to former § 8-513 is the elimination of the reference to the writ of scire facias; § 8.01-24 has replaced it with a simple motion. Other language of former § 8-513 has been deleted as unnecessary.

Cross references.

For rule of court as to commencement of civil actions, see Rule 3:2.

Michie’s Jurisprudence.

For related discussion, see 5A M.J. Covenant, Action of, § 2.

CASE NOTES

Editor’s note.

It is at least doubtful whether this section was intended to apply to actions on official bonds, although, in regard to such bonds, it has been held that the judgment ought to be entered in the form provided in this section. Sangster v. Commonwealth, 58 Va. (17 Gratt.) 124, 1866 Va. LEXIS 12 (1866).

And judgment does not preclude other actions on such bond. —

In no case has it been decided that where a judgment on an official bond has been so entered, it is a bar to any other action on the bond, and precludes any other recovery upon it than by motion for judgment. Sangster v. Commonwealth, 58 Va. (17 Gratt.) 124, 1866 Va. LEXIS 12 (1866).

Form of judgment. —

In an action upon a sheriff’s bond in the name of the Commonwealth, for the benefit of a person aggrieved by the misconduct of the sheriff, the judgment should be entered for the penalty, to be discharged by the payment of the damages assessed and costs, “and such other damages as may be hereafter assessed upon suing out a scire facias, and assigning new breaches, by the said [person aggrieved], or any other person or persons injured.” Bibb v. Cauthorne, 1 Va. (1 Wash.) 91, 1 Wash. 91, 1792 Va. LEXIS 18 (1792).

§ 8.01-30. Procedure in actions on contracts made by several persons.

Upon all contracts hereafter made by more than one person, whether joint only or joint and several, an action may be maintained and judgment rendered against all liable thereon, or any one or any intermediate number, and if, in an action on any contract heretofore or hereafter made, more than one person be sued and process be served on only a part of them, the plaintiff may dismiss or proceed to judgment as to any so served, and either discontinue as to the others, or from time to time as the process is served, proceed to judgment against them until judgment be obtained against all. Such dismissal or discontinuance of the action as to any defendant shall not operate as a bar to any subsequent action which may be brought against him for the same cause.

History. Code 1950, § 8-514; 1954, c. 333; 1977, c. 617.

Cross references.

As to judgment in joint action on contract, where plaintiff is barred as to one or more but not all defendants, see § 8.01-442 .

For rule of court as to commencement of civil actions, see Rule 3:2.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, § 11.

CASE NOTES

Editor’s note.

Section changes the common law. —

In an action ex contractu against several defendants, the common-law rule was that all should be summoned actually, or constructively by prosecution to outlawry, before judgment could be had against any. This section changes this for another rule, whereby judgment may be had against one defendant served with process, and a discontinuance as to the others, or at the plaintiff’s election, subsequent service of process and judgment, in the same suit, against the other defendants. Bush v. Campbell, 67 Va. (26 Gratt.) 403, 1875 Va. LEXIS 27 (1875).

Bankruptcy court properly held that a judgment against the husband did not extinguish the wife’s liability for a joint credit card debt because the statute altered common law, allowing joint debtors to be sued individually or in any combination or seriatim, and the creditor’s judgment against the husband did not merge the cause of action as to the wife. Guertler v. DuPont Cmty. Credit Union, 552 Bankr. 140, 2016 U.S. Dist. LEXIS 35039 (W.D. Va. 2016).

Judgment may be rendered against defendant served with process. —

Where only one of several defendants has been served with process, judgment may be rendered against him. Norfolk & W.R.R. v. Shippers Compress Co., 83 Va. 272 , 2 S.E. 139 , 1887 Va. LEXIS 63 (1887).

Where in an action against seven joint obligors, summons was returned executed as to four, and “No inhabitants” as to two, and as to the other, “I understand he is dead,” and at rules the six pleaded for misjoinder of surviving obligors with a dead obligor, and the clerk abated the action as to those returned “No inhabitants,” and the “dead” one, the court committed no error in rejecting the pleadings and entering judgment against the four who had been summoned. Dillard v. Turner, 87 Va. 669 , 14 S.E. 123 , 1891 Va. LEXIS 119 (1891).

And case discontinued as to those not served. —

The discontinuance provided for by this section is a discontinuance as against any one or more defendants upon whom process had not been served. Corbin v. Planters Nat'l Bank, 87 Va. 661 , 13 S.E. 98 , 1891 Va. LEXIS 118 (1891).

One of several persons jointly liable may be sued alone. —

In view of § 8.01-5 and this section, there is no merit in an objection by a defendant in an action upon a contract that his liability is joint with another, that such person was a necessary party and that defendant could not be sued alone. Reed & Rice Co. v. Wood, 138 Va. 187 , 120 S.E. 874 , 1924 Va. LEXIS 21 (1924).

Judgment may be had against sureties though principal not served. —

Judgment on a forthcoming bond may be had against the sureties under this section, though the principal has never been served with notice of a motion for an award of execution on the bond. Newberry v. Sheffey, 89 Va. 286 , 15 S.E. 548 , 1892 Va. LEXIS 96 (1892).

And against some of stockholders jointly liable on subscription. —

Since the obligation of a subscriber to stock to contribute to the amount of his subscription for the purpose of the payment of debts is contractual, and arises from the subscription to the stock, there can be no doubt of the right of a plaintiff under this section to proceed to judgment against a part of the defendants jointly liable for a subscription without proceeding against the others. Chisholm v. Gilmer, 81 F.2d 120, 1936 U.S. App. LEXIS 3407 (4th Cir.), aff'd, 299 U.S. 99, 57 S. Ct. 65, 81 L. Ed. 63, 1936 U.S. LEXIS 944 (1936).

And plaintiff may recover entire claim from one obligor. —

Where two clients jointly accept services rendered by an attorney, it is proper to charge that the attorney may recover the entire amount of the fee from either of the two clients, under this section, if he elects to sue one of them only. Culbert v. Hutton, 138 Va. 677 , 123 S.E. 367 , 1924 Va. LEXIS 58 (1924).

§ 8.01-31. Accounting in equity.

An accounting in equity may be had against any fiduciary or by one joint tenant, tenant in common, or coparcener for receiving more than comes to his just share or proportion, or against the personal representative of any such party.

History. Code 1950, § 8-514.1; 1956, c. 160; 1977, c. 617.

REVISERS’ NOTE

Former § 8-514.1 has been modified by deleting “bailiff” and other such terms which contemplate a fiduciary and the word “fiduciary” substituted in the place of those terms. See § 8.01-2 .

Law Review.

For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

For article on real estate law covering judicial opinions from 2006 to 2008, and the 2007 and 2008 sessions of the Virginia General Assembly, see 43 U. Rich. L. Rev. 379 (2008).

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abatement, Survival and Revival, § 10.

CASE NOTES

Applicability. —

This statute does not apply only to commercial or income-producing property. Gaynor v. Hird, 15 Va. App. 379, 424 S.E.2d 240, 9 Va. Law Rep. 611, 1992 Va. App. LEXIS 289 (1992).

Because a Chapter 7 trustee by statute had the powers of a hypothetical judgment lien creditor, his powers were not addressed in § 8.01-31 , which addressed the potential rights of one joint tenant against another. Scott v. Hoole (In re Hoole), No. 17-50262, 2018 Bankr. LEXIS 810 (Bankr. W.D. Va. Mar. 21, 2018).

Availability. —

There is no indication in the statute or in Virginia decisional law that the General Assembly intended § 8.01-2 to supplant the well-settled common law pursuant to which an accounting is available to redress a breach of the fiduciary responsibility inherent in an agency relationship or in the special relationship shown to have existed between husband and wife in the instant case. McClung v. Smith, 870 F. Supp. 1384, 1994 U.S. Dist. LEXIS 18453 (E.D. Va. 1994), aff'd in part, 89 F.3d 829, 1996 U.S. App. LEXIS 34515 (4th Cir. 1996).

Debtor failed to state an equitable accounting claim because she did not allege that a mortgage lender acted as a fiduciary. Rivera v. JP Morgan Chase Bank (In re Rivera), No. 13-14351-BFK, No. 13-01280, 2014 Bankr. LEXIS 344 (Bankr. E.D. Va. Jan. 27, 2014).

Executor of decedent’s estate may seek accounting from trustees. —

Executor of the estate of a decedent who was a lifetime beneficiary of a marital trust had standing to seek an accounting from the trustees as to their administration of the trust during the decedent’s lifetime, because he succeeded to the decedent’s § 8.01-31 right to an accounting by virtue of the survival provisions of § 8.01-25 . Campbell v. Harmon, 271 Va. 590 , 628 S.E.2d 308, 2006 Va. LEXIS 52 (2006).

By incorporating the powers listed in § 64.1-57 [now § 64.2-105 ], a testator does not thereby exclude “all other powers granted by law” from the executor. The right to compel an accounting from trustees is such an “other power granted by law” pursuant to §§ 8.01-31 and 8.01-25 . Campbell v. Harmon, 271 Va. 590 , 628 S.E.2d 308, 2006 Va. LEXIS 52 (2006).

Upon divorce, marital home fell within scope of section. —

Upon parties’ divorce, their marital home, which they had owned as tenants by the entirety, became their property as tenants in common, and thus fell within the scope of this section. Gaynor v. Hird, 15 Va. App. 379, 424 S.E.2d 240, 9 Va. Law Rep. 611, 1992 Va. App. LEXIS 289 (1992).

Reach of Gaynor. —

Gaynor v. Hird, 15 Va. App. 379, 424 S.E.2d 240 (1992), which involved an accounting in equity pursuant to this section, after the parties’ property was converted from ownership as tenants by the entirety to ownership as tenants in common, does not require an accounting of rental value pre-divorce when the parties own the property as tenants by the entirety. Longmyer v. Longmyer, 1995 Va. App. LEXIS 347 (Va. Ct. App. Apr. 11, 1995).

Rental value award to non-occupying ex-spouse permissible. —

Where upon their divorce, the parties owned marital residence as tenants in common, and husband was required to bear his share of the financial burden of owning the property, the trial court did not abuse its discretion in awarding husband one-half of the reasonable rental value of the marital home for the period it was occupied exclusively by wife following their divorce. Ashley v. Ashley, No. 0851-93-1 (Ct. of Appeals Nov. 30, 1993).

When, instead of renting it out, the co-tenant in possession occupies and uses the whole property to the exclusion of his co-tenants, and thus, in effect, becomes himself the renter, the just and true rule is to charge him with a reasonable rent for the use and occupation of the property in the condition in which it was when he received it, and to hold him accountable to his co-tenants for their just shares of such rent. Gaynor v. Hird, 15 Va. App. 379, 424 S.E.2d 240, 9 Va. Law Rep. 611, 1992 Va. App. LEXIS 289 (1992).

Non-occupying cotenant. —

Because a non-occupying cotenant was never excluded or ousted from co-occupation of the property, she was not entitled to a ratable share of the fair rental value from the occupying cotenant. However, the occupying cotenant was entitled to one-half of the rental payments made by a non-owner occupant, namely the occupying cotenant’s son. Daly v. Shepherd, 274 Va. 270 , 645 S.E.2d 485, 2007 Va. LEXIS 91 (2007).

Former spouse not entitled to rental value where not co-owner. —

An accounting occurs and a party is entitled to the fair market rental value of property only when that party has joint ownership of the property; where the owner’s former wife conceded that the property was titled solely in her former husband’s name, she was not entitled to an award based on the property’s rental value because she was not an owner of the property. Snider v. Snider, 2001 Va. App. LEXIS 19 (Va. Ct. App. Jan. 16, 2001).

Responsibility of cotenants for taxes and other liens. —

Unless something more can be shown than the mere fact that one cotenant is in possession of the premises, each cotenant should be ratably responsible for taxes and other liens against the property. Jenkins v. Jenkins, 211 Va. 797 , 180 S.E.2d 516, 1971 Va. LEXIS 268 (1971) (decided under prior law).

Cotenant who discharges an encumbrance upon common property is entitled to ratable contribution from his cotenant. Jenkins v. Jenkins, 211 Va. 797 , 180 S.E.2d 516, 1971 Va. LEXIS 268 (1971) (decided under prior law).

The central characteristic of a tenancy in common is simply that each tenant is deemed to own by himself, with most of the attributes of individual ownership, a physically undivided part of the entire parcel. Jenkins v. Jenkins, 211 Va. 797 , 180 S.E.2d 516, 1971 Va. LEXIS 268 (1971) (decided under prior law).

Husband entitled to evidentiary hearing to determine costs caused by former wife’s delay in sale. —

Where the wife’s conduct delayed the sale of the marital residence, thereby allegedly causing the husband to make additional payments on the property, including the mortgage for which the husband was solely reasponsible, the husband, as tenant in common pursuant to § 20-111 , was entitled under § 8.01-31 to an evidentiary hearing as to whether the husband was entitled to contribution from the wife, who was ratably responsible for the property’s costs. Morris v. Morris, 2004 Va. App. LEXIS 447 (Va. Ct. App. Sept. 14, 2004).

It is not the purpose of the equitable distribution scheme to deprive an aggrieved spouse of a generally recognized remedy for the misapplication or misappropriation of separate funds entrusted to the other spouse pursuant to a special relationship. McClung v. Smith, 870 F. Supp. 1384, 1994 U.S. Dist. LEXIS 18453 (E.D. Va. 1994), aff'd in part, 89 F.3d 829, 1996 U.S. App. LEXIS 34515 (4th Cir. 1996).

Spouse not exempted. —

There is no authority which, in the name of furthering marital harmony, would exempt from the remedy of an accounting a spouse who has been entrusted with the separate funds of another for a limited purpose and misapplied them. McClung v. Smith, 870 F. Supp. 1384, 1994 U.S. Dist. LEXIS 18453 (E.D. Va. 1994), aff'd in part, 89 F.3d 829, 1996 U.S. App. LEXIS 34515 (4th Cir. 1996).

Class action. —

Force-pooled lessors, but not voluntary lessors, met federal class certification requirements on claims for breach of fiduciary duty, conversion, and unjust enrichment arising from alleged underpayment of royalties by natural gas production companies; moreover, an equitable accounting claim was suitable for bifurcated liability and damages proceedings. Adair v. EQT Prod. Co., 320 F.R.D. 379, 2017 U.S. Dist. LEXIS 46464 (W.D. Va. 2017).

Counterclaim sufficiently stated claim for equitable accounting. —

Circuit court erred in sustaining a trustee’s demurrer to a remainder beneficiary’s counterclaim seeking an equitable accounting pursuant to § 8.01-31 because the properly pleaded facts in the beneficiary’s third amended counterclaim, accepted as true, were sufficient to state a claim that the trustee, as a fiduciary, received more than comes to her just share; the circuit court erred in considering the trustee’s accounting because it was neither an exhibit accompanying the pleading nor a document produced in response to a motion craving oyer. Riverside Healthcare Ass'n v. Forbes, 281 Va. 522 , 709 S.E.2d 156, 2011 Va. LEXIS 90 (2011).

Costs denied. —

Sibling was properly ordered to bear the costs of the partition suit under § 8.01-31 where the majority of the costs related to her failed attempt to recover the property’s fair rental value from three of the siblings in possession of the property. Berry v. Fitzhugh, 299 Va. 111 , 846 S.E.2d 901, 2020 Va. LEXIS 94 (2020).

Not applicable. —

Chapter 7 debtor’s one-half ownership interest in certain real property was part of bankruptcy estate because property settlement between debtor and his ex-wife was incorporated into final divorce decree and was enforceable; however, neither party was entitled to contribution from other in circumstances here. Terry v. Evans, 527 Bankr. 228, 2015 Bankr. LEXIS 941 (Bankr. E.D. Va. 2015).

Decedent’s daughter did not assert a viable claim for an equitable accounting under this section because the daughter and the decedent’s son were never in a principal-agent relationship with each other and in his capacity as the decedent’s agent, the son owed no fiduciary duty to account to the daughter concerning his management of the decedent’s financial affairs. Phillips v. Rohrbaugh, 300 Va. 289 , 863 S.E.2d 847, 2021 Va. LEXIS 117 (2021).

CIRCUIT COURT OPINIONS

Accounting for marital home. —

When a husband and wife divorced, their marital home, which they had owned as tenants by the entirety, became their property as tenants in common, and fell within the scope of § 8.01-31 , requiring the husband to account for one-half the fair rental value of the property, as he maintained exclusive control of it. Shaio Hon Yang Yeh v. Guang Huei Yeh, 56 Va. Cir. 439, 2001 Va. Cir. LEXIS 485 (Roanoke Sept. 24, 2001).

Cotenants claims for reimbursement of taxes. —

Where two cotenants could not assert claims for reimbursement of taxes paid by others, the remaining cotenants’ exceptions to a commissioner’s recommendation in a partition action were sustained. Battiste v. Smith, 64 Va. Cir. 140, 2004 Va. Cir. LEXIS 14 (Spotsylvania County Feb. 25, 2004).

Rental proceeds. —

Because co-owners had exclusive occupancy of the premises and received all of its rental proceeds, they had a responsibility to account to plaintiff for his share. Clayborne v. McClain, 72 Va. Cir. 23, 2006 Va. Cir. LEXIS 186 (Nelson County Apr. 11, 2006).

Spouse’s exceptions to a commissioner’s report failed as the spouse was required to account for the post-death rents and profits of a warehouse in the spouse’s capacity as a fiduciary for an intestate estate under § 8.01-31 . Estate of Spears v. Spears, 2008 Va. Cir. LEXIS 149 (Fairfax County Nov. 3, 2008).

Applicable. —

Defendant argued that the statute was not applicable because it only allowed equitable accounting against any fiduciary or by one joint tenant, tenant in common, or coparcener, but the problem with this argument was that it did not appear that the complaint relies on the memorandum of understanding; the count was pleaded in the alternative that the duties arose from the positions that defendant held, and this appeared to be sufficient, as an alternative theory, to withstand a demurrer. Daggett & Grigg, Architects, P.C. v. Daggett, 90 Va. Cir. 442, 2015 Va. Cir. LEXIS 155 (Charlottesville Aug. 18, 2015).

Not applicable. —

Former employee’s motion to amend his complaint against his former employers to add a claim for an accounting under § 8.01-31 was denied; as an employer had no fiduciary duty to an employee and the parties were not joint tenants, tenants in common, or coparceners, § 8.01-31 was not applicable. Studer v. Hurley, 82 Va. Cir. 406, 2011 Va. Cir. LEXIS 146 (Norfolk Mar. 29, 2011).

School board’s demurrer was sustained as to the claim against it for an equitable accounting because the school board was not a fiduciary of the county. Cty. of Lancaster v. Latimore, 97 Va. Cir. 401, 2013 Va. Cir. LEXIS 228 (Lancaster County May 31, 2013).

§ 8.01-32. Action on lost evidences of debt.

  1. A civil action may be maintained on any  past-due lost bond, note, contract, open account agreement, or other written evidence of debt, provided the plaintiff verifies under oath either in open court or by affidavit that said bond, note, contract, open account agreement, or other written evidence of debt has been lost or destroyed.
  2. Where a true and accurate copy of the written evidence of debt exists, which copy was produced in the normal course of business, the court shall accept such copy into evidence and shall give effect to its terms as if the original had been placed into evidence.
  3. In the event of any inconsistency between this section and any applicable provisions of § 8.3A-309 , the provisions of that section shall control.

History. Code 1950, § 8-517; 1954, c. 333; 1964, c. 219; 1977, c. 617; 2000, c. 245; 2003, c. 125.

REVISERS’ NOTE

The catchline of former § 8-517 has been changed to emphasize the real purpose of this statute which is to permit an action on lost instruments that were evidences of debt. The former words “or defendants” and “order awarding” were deleted as unnecessary. (With respect to the deletion of “or defendants” see § 1-13.15.) The cross reference to the UCC was corrected.

The 2000 amendments.

The 2000 amendment by c. 245 substituted “is” for “be” following “if judgment” in the first sentence of the first paragraph and substituted “§ 8.3A-309 ” for “§ 8.3-804” in the second paragraph.

The 2003 amendments.

The 2003 amendment by c. 125 rewrote the section.

Michie’s Jurisprudence.

For related discussion, see 8A M.J. Executors and Administrators, § 104.

CASE NOTES

Editor’s note.

Purpose of section. —

This section was enacted to authorize the maintenance of an action at law “on any past due lost bond, note, or other written evidence of debt,” and to require a proper indemnity for the defendant’s protection. Prior to its adoption, an action at law could be maintained on lost bonds and lost choses in action of any kind, provided they were not negotiable. If the paper was negotiable, and there was ample proof that it was destroyed, an action at law could likewise be maintained; but upon negotiable paper which was simply lost or mislaid and not destroyed, no action at law would lie. In such actions as were allowed no indemnifying bond was required. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20, 1957 Va. LEXIS 209 (1957).

Section does not affect jurisdiction of equity. —

Courts of equity still have jurisdiction to enforce payment of a lost bond, although courts of law are given jurisdiction over such bonds by this section, for it is well settled that courts of equity having once acquired jurisdiction never lose it because jurisdiction of the same matters is given to courts of law, unless the statute conferring such jurisdiction uses prohibitory or restrictive words. Kabler v. Spencer, 114 Va. 589 , 77 S.E. 504 , 1913 Va. LEXIS 120 (1913).

Claim against decedent’s estate evidenced by lost instrument. —

This section does not expressly or impliedly deprive a commissioner of accounts of the express and specific authority conferred on him under §§ 64.1-171, 64.1-172 and 64.1-173 [now §§ 64.2-550 and 64.2-552 ] to receive proof of debts and demands against a decedent or his estate in the settlement of the accounts of a personal representative of a decedent. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20, 1957 Va. LEXIS 209 (1957).

There was no merit in the contention that because the note evidencing a debt of a decedent was lost, the creditor was required to bring an action under this section against the executor, and precluded from proving her claim before a commissioner of accounts under §§ 64.1-171 through 64.1-173 [now §§ 64.2-550 and 64.2-552 ]. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20, 1957 Va. LEXIS 209 (1957).

§ 8.01-33. Equitable relief in certain cases.

A court shall not grant equitable relief in a suit upon a bond, note, or writing, by an assignee or holder thereof, unless it appears that the plaintiff had no adequate remedy thereon at law.

History. Code 1950, § 8-518; 1977, c. 617; 2005, c. 681.

Cross references.

As to right of assignee to sue in his own name, see § 8.01-13 .

The 2005 amendments.

The 2005 amendment by c. 681, effective January 1, 2006, deleted “of equity” preceding “shall,” substituted “grant equitable relief in a suit” for “have jurisdiction of a suit,” “it appears” for “it appear” and “had no” for “had not an.”

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Assignments, § 38.

CASE NOTES

Editor’s note.

The object of this section was to provide against the abuse of crowding the chancery court with suits by assignees upon plain bonds, but out of abundant caution the provision was extended, and very properly, to a mere transferee or holder of a bond or other writing. Winn v. Bowles, 20 Va. (6 Munf) 23, 1817 Va. LEXIS 51 (1817); Walters v. Farmers Bank, 76 Va. 12 , 1881 Va. LEXIS 69 (1881).

But equity, having taken jurisdiction on other grounds, will retain it. —

This section was not intended to affect the principle that when the court has once rightly obtained cognizance of the controversy and of the parties, its power is effectual for complete relief. Walters v. Farmers Bank, 76 Va. 12 , 1881 Va. LEXIS 69 (1881).

And equity has jurisdiction of suit by partial assignee. —

For the enforcement of payment of a part of a debt assigned by the creditor without the assent or acceptance of the debtor, there is no jurisdiction in a court of law, but such partial recovery may be had in a court of equity. Phillips v. City of Portsmouth, 112 Va. 164 , 70 S.E. 502 , 1911 Va. LEXIS 67 (1911).

Section is not applicable to promise to assume mortgage debt. —

This section has no application to a suit brought upon the promise of defendants to assume the payment of a mortgage debt, which promise was implied by law from their acceptance of a writing not signed by defendants, conveying the property to them subject to the mortgage. Blanton v. Keneipp, 155 Va. 668 , 156 S.E. 413 , 1931 Va. LEXIS 260 (1931).

Article 3. Injury to Person or Property.

§ 8.01-34. When contribution among wrongdoers enforced.

Contribution among wrongdoers may be enforced when the wrong results from negligence and involves no moral turpitude.

History. Code 1950, § 8-627; 1977, c. 617.

REVISERS’ NOTE

The minor change which deleted “mere act” preceding “negligence” was made merely for clarification and does not materially alter the statute as it has been interpreted by case law.

Law Review.

For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973).

For survey of Virginia law on property for the year 1973-1974, see 60 Va. L. Rev. 1583 (1974).

For article, “Effect of Virginia Workmen’s Compensation Act upon the Right of a Third-Party Tortfeasor to Obtain Contribution from an Employer Whose Concurrent Negligence Causes Employee’s Death or Injury,” see 13 U. Rich L. Rev. 117 (1978).

For comment, “The Covenant Not to Sue: Virginia’s Effort to Bury the Common Law Rule Regarding the Release of Joint Tortfeasors,” see 14 U. Rich. L. Rev. 809 (1980).

For case note on contribution for antitrust contribution, see 66 Va. L. Rev. 797 (1980).

For an article, “A Model for Enhanced Risk Recovery in Tort,” see 56 Wash. & Lee L. Rev. 1173 (1999).

For a note, “A Duty Not to Become a Victim: Assessing the Plaintiff’s Fault in Negligent Security Actions,” see 57 Wash. & Lee L. Rev. 611 (2000).

Michie’s Jurisprudence.

For related discussion, see 4B M.J. Contribution and Exoneration, §§ 2, 22, 38.

CASE NOTES

Analysis

I.Decisions Under Current Law.

Right to contribution from joint tort-feasors was statutorily created by the Virginia General Assembly in 1919. This right is codified in this section, subject now to the provisions of § 8.01-35.1 .Carickhoff v. Badger-Northland, Inc., 562 F. Supp. 160, 1983 U.S. Dist. LEXIS 18525 (W.D. Va. 1983).

Before contribution will be permitted, a right of action by the plaintiff must exist as to the joint tort-feasor against whom contribution is sought. VEPCO v. Wilson, 221 Va. 979 , 277 S.E.2d 149, 1981 Va. LEXIS 237 (1981).

A contribution plaintiff cannot recover from a contribution defendant unless the injured party could have recovered against the contribution defendant. Pierce v. Martin, 230 Va. 94 , 334 S.E.2d 576, 1985 Va. LEXIS 256 (1985).

Contribution statute inapplicable. —

Before contribution could be had, it was essential that a cause of action by the person injured lie against the alleged wrongdoer from whom contribution was sought; therefore, § 8.01-34 was inapplicable where a judicial ruling was tantamount to a holding that the injured party never had an enforceable cause of action against the target of the contribution claim. Pulte Home Corp. v. Parex, Inc., 265 Va. 518 , 579 S.E.2d 188, 2003 Va. LEXIS 51 (2003).

Because each of plaintiff’s claims against defendant pled the existence of an intentional tort, defendant was not entitled to contribution from third-party defendants under § 8.01-34 . E.I. Dupont De Nemours & Co. v. Kolon Indus., 688 F. Supp. 2d 443, 2009 U.S. Dist. LEXIS 76795 (E.D. Va. 2009), .

The principles of contribution are equally applicable to indemnity, but the distinguishing feature of indemnity is that it must necessarily grow out of a contractual relationship. VEPCO v. Wilson, 221 Va. 979 , 277 S.E.2d 149, 1981 Va. LEXIS 237 (1981).

Third-party plaintiff may bring action for contribution, despite the fact that no payment has been made. Rambone v. Critzer, 548 F. Supp. 660, 1982 U.S. Dist. LEXIS 9714 (W.D. Va. 1982).

Indemnification between multiple parties. —

In an action by building owners against a developer seeking contractual indemnification for damage to their buildings, where the developer sued a general contractor, who sued, inter alia, an earth-moving subcontractor, who sued a material supplier, who sued building contractors seeking contribution, the building contractors’ motions to dismiss under Fed. R. Civ. P. 12(b)(6) were granted where the material supplier’s contribution claims against the building contractors could not be brought under Fed. R. Civ. P. 14(a) because § 8.01-34 did not give a right of contribution to the material supplier. Kohl's Dep't Stores, Inc. v. Target Stores, Inc., 214 F.R.D. 406, 2003 U.S. Dist. LEXIS 5373 (E.D. Va. 2003).

Where liability arose out of act involving moral turpitude. —

International matchmaking agency and its owner were not entitled to contribution due to their moral turpitude in not telling their client, a Ukrainian woman, about a battered spouse waiver, but instead telling her that her only options were to work things out with her new abusive husband or be deported back to the Ukraine. Fox v. Encounters Int'l, No. 05-1139, No. 05-1404, 2006 U.S. App. LEXIS 9269 (4th Cir. Apr. 13, 2006).

Sufficiency of pleading. —

Manufacturer’s motion to dismiss a subcontractor’s third-party negligence action was denied in part because the subcontractor met both elements of a claim for contribution under Virginia law. Claim for contribution was available to joint tortfeasors despite the general economic loss rule. AMCO Water Metering Sys. v. Travelers Cas. Sur. Co. of Am., No. 3:03CV00003, No. 3:03CV00012, 2003 U.S. Dist. LEXIS 17758 (W.D. Va. Sept. 30, 2003).

Erroneous jury instructions on apportionment. —

Trial court in a physician’s contribution action under §§ 8.01-34 and 8.01-35.1 against a pharmacy and its pharmacist erred when it gave the jury erroneous instructions on the issues of the reasonableness of an underlying settlement and the apportionment of damages between the parties, such that a new trial was required because the instructions bore on the issues of both liability and damages; apportionment between the parties should not have been before the jury where the evidence indicated that the injuries suffered by the patient in the underlying action were indivisible, such that a finding of joint liability rendered each party liable for the full injury, and as there was nothing to rebut the physician’s evidence as to the reasonableness of the settlement, that issue also should not have been a subject for the jury’s consideration. Sullivan v. Robertson Drug Co., 273 Va. 84 , 639 S.E.2d 250, 2007 Va. LEXIS 16 (2007).

II.Decisions Under Prior Law.

Editor’s note.

This section changed the common-law rule. —

At common law there was no contribution among joint tort-feasors, but that right is now given by this section. Norfolk & P. Belt Line R.R. v. Parker, 152 Va. 484 , 147 S.E. 461 , 1929 Va. LEXIS 185 (1929) (see also McLaughlin v. Siegel, 166 Va. 374 , 185 S.E. 873 (1936); American Employers’ Ins. Co. v. Maryland Cas. Co., 218 F.2d 335 (4th Cir. 1954)).

At common law contribution was not permitted amongst joint tort-feasors. Mahone v. McGraw-Edison Co., 281 F. Supp. 582, 1968 U.S. Dist. LEXIS 8305 (E.D. Va. 1968).

The doctrine of contribution is founded on principles of equity and natural justice. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16, 1964 Va. LEXIS 208 (1964).

The right to contribution is based upon the equitable principle that where two or more persons are subject to a common burden it shall be borne equally. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75, 1973 Va. LEXIS 234 (1973).

The right of contribution is controlled by this section. Mahone v. McGraw-Edison Co., 281 F. Supp. 582, 1968 U.S. Dist. LEXIS 8305 (E.D. Va. 1968).

But it gives a right of contribution only where the person injured has a right of action against two persons for the same indivisible injury. Though the concurring negligence of two persons may have resulted in an indivisible injury to a third, if the third person has a cause of action against only one of them, that one cannot enforce contribution from the other. The statute allowing contribution does not create any greater liability than existed before its enactment. Norfolk S.R.R. v. Gretakis, 162 Va. 597 , 174 S.E. 841 , 1934 Va. LEXIS 272 (1934).

This section gives a right of contribution only where the party damaged has a right of action against two or more parties for the same indivisible damage. In short, if the damaged party has a cause of action against only one of the parties responsible for the damage, that one cannot enforce contribution from the other. American Tobacco Co. v. Transport Corp., 277 F. Supp. 457, 1967 U.S. Dist. LEXIS 9170 (E.D. Va. 1967); Laws v. Spain, 312 F. Supp. 315, 1970 U.S. Dist. LEXIS 12771 (E.D. Va.), transferred, 51 F.R.D. 307, 1970 U.S. Dist. LEXIS 10051 (E.D. Va. 1970).

Virginia, while permitting contribution between co-tort-feasors, withholds it as against a joint offender who cannot in law be forced to answer to the plaintiff for his negligence. Drumgoole v. VEPCO, 170 F. Supp. 824, 1959 U.S. Dist. LEXIS 3789 (D. Va. 1959).

The right of contribution is withheld against a joint tort-feasor who cannot in law be forced to answer to a plaintiff for his alleged negligence. Mahone v. McGraw-Edison Co., 281 F. Supp. 582, 1968 U.S. Dist. LEXIS 8305 (E.D. Va. 1968).

This section does not create any greater liability than existed before its enactment. Laws v. Spain, 312 F. Supp. 315, 1970 U.S. Dist. LEXIS 12771 (E.D. Va.), transferred, 51 F.R.D. 307, 1970 U.S. Dist. LEXIS 10051 (E.D. Va. 1970).

Joint tort-feasor. —

Joint tort-feasor means “two or more persons jointly or severally liable in tort for the same injury to person or property.” Laws v. Spain, 312 F. Supp. 315, 1970 U.S. Dist. LEXIS 12771 (E.D. Va.), transferred, 51 F.R.D. 307, 1970 U.S. Dist. LEXIS 10051 (E.D. Va. 1970).

Recovery amongst joint tort-feasors, absent contract, is limited to contribution. Hartford Accident & Indem. Co. v. Williams, 291 F. Supp. 103, 1968 U.S. Dist. LEXIS 9239 (W.D. Va. 1968).

When contribution permitted. —

While no right of contribution among wrongdoers existed at common law, that right is now permitted by this section and may be enforced when the wrong is an act of negligence and involves no moral turpitude. The wrongdoer, of course, must be a joint tort-feasor; that is, the concurring negligence of both parties must have contributed to bring about the injury sustained by a third. North River Ins. Co. v. Davis, 274 F. Supp. 146, 1967 U.S. Dist. LEXIS 8103 (W.D. Va. 1967), aff'd, 392 F.2d 571, 1968 U.S. App. LEXIS 7701 (4th Cir. 1968).

When contribution a matter of right. —

When parties are bound to bear a burden, and are liable from the same circumstances existing as to both, contribution is a matter of right in equity. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16, 1964 Va. LEXIS 208 (1964).

The right of contribution arises only when one tort-feasor has paid or settled a claim for which other wrongdoers are also liable. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75, 1973 Va. LEXIS 234 (1973).

It does not permit contribution among participants in intentional illegal acts. —

The affirmative provision of this section permitting contribution is limited to cases in which the wrong is a mere act of negligence, and the added phrase excluding acts of moral turpitude plainly shows that the legislature did not intend to extend the privilege to participants in intentional illegal acts. Carriers Ins. Exch. v. Truck Ins. Exch., 310 F.2d 653, 1962 U.S. App. LEXIS 3739 (4th Cir. 1962).

This section did not justify contribution or indemnity between a lessor and lessee of a tractor-trailer carrying gasoline for liability caused by an explosion where the transaction was being conducted in deliberate disregard of the Interstate Commerce Commission’s regulations. Carriers Ins. Exch. v. Truck Ins. Exch., 310 F.2d 653, 1962 U.S. App. LEXIS 3739 (4th Cir. 1962).

Or where liability arose out of act involving moral turpitude. —

The party who otherwise would be entitled to contribution may forfeit his right where the joint liability arose out of an act involving moral turpitude or a voluntary tort. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16, 1964 Va. LEXIS 208 (1964).

Contribution allowed where party is only a technical wrongdoer. —

Where a party is only a technical wrongdoer, and did not actually participate in the wrongful act, such party, on being compelled to pay damages to the injured party, is entitled to contribution or indemnity from the actual wrongdoer. McLaughlin v. Siegel, 166 Va. 374 , 185 S.E. 873 , 1936 Va. LEXIS 199 (1936).

Claim must have been paid. —

Before contribution may be had it is essential that a cause of action by the person injured lie against the alleged wrongdoer from whom contribution is sought. Further, this right arises only when one tort-feasor has paid or settled a claim for which other wrongdoers are also liable. Bartlett v. Roberts Recapping, Inc., 207 Va. 789 , 153 S.E.2d 193, 1967 Va. LEXIS 136 (1967).

The right to contribution arises only when one of the joint tort-feasors has paid a claim for which the other wrongdoer is also liable. The payment need not be the result of a judgment for the right of contribution will lie although no previous judgment determining the issues of negligence and contributory negligence has been obtained. North River Ins. Co. v. Davis, 274 F. Supp. 146, 1967 U.S. Dist. LEXIS 8103 (W.D. Va. 1967), aff'd, 392 F.2d 571, 1968 U.S. App. LEXIS 7701 (4th Cir. 1968).

The right to contribution arises only when one tort-feasor has paid or settled a claim for which the other wrongdoer is liable. Laws v. Spain, 312 F. Supp. 315, 1970 U.S. Dist. LEXIS 12771 (E.D. Va.), transferred, 51 F.R.D. 307, 1970 U.S. Dist. LEXIS 10051 (E.D. Va. 1970).

The right given by this section arises when, and only when, one tort-feasor has paid a claim for which they are both liable. Laws v. Spain, 312 F. Supp. 315, 1970 U.S. Dist. LEXIS 12771 (E.D. Va.), transferred, 51 F.R.D. 307, 1970 U.S. Dist. LEXIS 10051 (E.D. Va. 1970).

Assignment of right to contribution. —

The right to enforce contribution granted by this section is a chose in action. And there appears no logical reason why it is not capable of being assigned. McKay v. Citizens Rapid Transit Co., 190 Va. 851 , 59 S.E.2d 121, 1950 Va. LEXIS 175 (1950).

Insurer’s right to contribution. —

Under this statute not only a joint tort-feasor but also his insurer, who has paid a judgment against him and another joint tort-feasor, has the right of contribution from the latter. McKay v. Citizens Rapid Transit Co., 190 Va. 851 , 59 S.E.2d 121, 1950 Va. LEXIS 175 (1950); American Employers' Ins. Co. v. Maryland Cas. Co., 218 F.2d 335, 1954 U.S. App. LEXIS 3256 (4th Cir. 1954).

An accident occurred involving two cars in which the drivers of both were at fault, so that each insured became immediately liable and the indemnity provisions of each policy became effective with respect to all the injuries incurred. Thereupon the two insurance companies became subject to a common obligation to the extent of the respective limits of their policies, and when one of them paid the total amount of the debt, the right to contribution from the other arose. American Employers' Ins. Co. v. Maryland Cas. Co., 218 F.2d 335, 1954 U.S. App. LEXIS 3256 (4th Cir. 1954).

The right to contribution is not a personal right of the tort-feasor but is a chose in action to which an insurer may be subrogated. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646, 1961 Va. LEXIS 139 (1961); Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16, 1964 Va. LEXIS 208 (1964).

An insurer’s right to contribution was not barred by a judgment which it had previously obtained against the same defendant involving the same accident but based upon subrogation to a separate cause of action. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646, 1961 Va. LEXIS 139 (1961).

An insurer making settlement of claims against its insured is subrogated to his right of contribution from joint tort-feasors. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75, 1973 Va. LEXIS 234 (1973).

Jurisdiction of equity. —

While the right to enforce contribution originally belonged to courts of equity on general principles of justice, jurisdiction to proceed in courts of law to enforce contribution is well recognized in some cases, but equity retains such original jurisdiction and will take jurisdiction when to do so will avoid a multiplicity of suits, or where the relief at law would be incomplete or inadequate. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16, 1964 Va. LEXIS 208 (1964).

Transfer of case to law side. —

Though the right to contribution arose in equity and though equity retains concurrent jurisdiction in such matters with courts of law, the court did not abuse its discretion in transferring the case to the law side. No matter was involved that was peculiarly cognizable in equity and the basic issues of negligence that were involved traditionally are tried at law. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16, 1964 Va. LEXIS 208 (1964).

Action will lie though no previous judgment has been obtained. —

A right of action for contribution will lie though no previous judgment determining the issues of negligence and contributory negligence has been obtained. There is nothing in our statute which requires that the issues of negligence and contributory negligence be adjudicated before an action for contribution may be brought. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646, 1961 Va. LEXIS 139 (1961).

Action based on compromise settlement. —

Where the action for contribution is based upon a compromise settlement rather than a judgment, the alleged joint tort-feasor may challenge the right to contribution on grounds that the compromise settlement is unreasonable, excessive, made in bad faith, or that he was not concurrently negligent, or that his negligence was not a proximate cause of the injuries compromised. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646, 1961 Va. LEXIS 139 (1961).

The burden is upon the alleged joint tort-feasor to show that compromises upon which the right to contribution is based were unreasonable or excessive. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646, 1961 Va. LEXIS 139 (1961).

The right to maintain the action for contribution need not be founded upon a judgment determining the issues of negligence. It may be based upon a compromise settlement, rather than a judgment. Laws v. Spain, 312 F. Supp. 315, 1970 U.S. Dist. LEXIS 12771 (E.D. Va.), transferred, 51 F.R.D. 307, 1970 U.S. Dist. LEXIS 10051 (E.D. Va. 1970).

Statute of limitations. —

The cause of action in cases of this kind arises out of an implied promise to pay, and therefore the three-year statute of limitations would apply. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646, 1961 Va. LEXIS 139 (1961).

The right of action under this section arises upon payment or discharge of the obligation, and it is then that the statute of limitations begins to run. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646, 1961 Va. LEXIS 139 (1961).

Exoneration and indemnity comes about when one secondarily liable has to pay and then comes back to the party primarily responsible. Mahone v. McGraw-Edison Co., 281 F. Supp. 582, 1968 U.S. Dist. LEXIS 8305 (E.D. Va. 1968).

Exoneration is the right to be reimbursed by reason of having paid that which another should be compelled to pay, and is generally based upon contract, express or implied. Mahone v. McGraw-Edison Co., 281 F. Supp. 582, 1968 U.S. Dist. LEXIS 8305 (E.D. Va. 1968).

Sufficiency of pleading. —

In an action brought under this section, use of the word “proximate” or the phrase “proximately caused” was held not necessary in a pleading that was seeking contribution for tortious injury or death caused by negligent acts of omission or commission. Legal responsibility in that respect can be charged by other language so long as it apprises defendant that he is charged with negligently causing or contributing to the injuries or death. Goode v. Courtney, 200 Va. 804 , 108 S.E.2d 396, 1959 Va. LEXIS 170 (1959).

CIRCUIT COURT OPINIONS

Contribution for punitive damages barred. —

In a contractor’s demurrer to an independent contractor’s third-party action for contribution or indemnification after a telephone company’s cable was severed, the demurrer was sustained for any claim for indemnity or contribution for punitive damages awarded to the telephone company against the independent contractor, as any act justifying punitive damages would result from moral turpitude and would thus be barred by the provisions of § 8.01-34 . MCI Worldcom Network v. Brockman, 66 Va. Cir. 438, 2000 Va. Cir. LEXIS 646 (Amherst County Feb. 1, 2000).

Contribution not barred in hit and run. —

Where a motorist involved in an automobile accident pled guilty to felony hit and run, and was sued by the passengers of the other vehicle, it was not appropriate to grant a plea in bar preventing him from asserting a contribution action against the other driver, because the actions to which he pled guilty occurred after the accident occurred and the passengers were injured. Katz v. Waterman, 59 Va. Cir. 182, 2002 Va. Cir. LEXIS 128 (Loudoun County June 17, 2002).

Contribution in regard to the Virginia Birth-Related Neurological Injuries Compensation Act. —

As the Virginia Birth-Related Neurological Injuries Compensation Act, § 38.2-5000 et seq., barred the injured parties from seeking any remedy against the hospital, the healthcare worker who was being sued could not seek contribution from a party the injured parties could not themselves sue. Schaffer v. Gildon, 61 Va. Cir. 118, 2003 Va. Cir. LEXIS 142 (Norfolk Jan. 30, 2003).

Contribution in third-party action. —

Construction company’s motion for a demurrer was overruled because the fact that an accident victim could have sued the company at some point, if the facts in the retail store’s third-party motion for judgment were taken as true, allowed the retail store to bring an action for contribution against the company under § 8.01-34 . Rapine v. A.E. Outfitters Retail Co., 70 Va. Cir. 153, 2006 Va. Cir. LEXIS 38 (Fairfax County Jan. 31, 2006).

Contribution. —

Contractor could not seek contribution from subcontractors because the contractor had neither paid, nor settled with an accident victim, who fell on the premises where the subcontractors provided services in the building of a walkway. Supchak v. Fuller Constr. Corp., 86 Va. Cir. 517, 2013 Va. Cir. LEXIS 75 (Chesapeake July 12, 2013).

Sufficiency of pleadings. —

Based on a railroad’s concession that the basis for a demurrer filed against it by a business was that its contribution claim was for the whole amount it paid to settle a FELA claim, the demurrer was sustained; however, the demurrer was denied as to its indemnification claim, whether said claim was labeled implied or equitable. CSX Transp., Inc. v. Titan Am., L.L.C., 72 Va. Cir. 593, 2004 Va. Cir. LEXIS 383 (Richmond Nov. 2, 2004).

§ 8.01-35. Damages for loss of income not diminished by reimbursement.

In any suit brought for personal injury or death, provable damages for loss of income due to such injury or death shall not be diminished because of reimbursement of income to the plaintiff or decedent from any other source, nor shall the fact of any such reimbursement be admitted into evidence.

History. Code 1950, § 8-628.3; 1974, c. 155; 1977, c. 617.

Law Review.

For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974).

Michie’s Jurisprudence.

For related discussion, see 5C M.J. Damages, §§ 48, 49, 91.

CASE NOTES

Section does not apply to losses incurred because of medical expenses. —

This section is limited by its own terms to damages for “loss of income,” and the Virginia Supreme Court and the Virginia legislature view this as separate and distinct from losses incurred because of medical expenses. Therefore, this section does not apply where the plaintiff seeks to introduce medical bills. Karsten v. Kaiser Found. Health Plan, 808 F. Supp. 1253, 1992 U.S. Dist. LEXIS 19995 (E.D. Va. 1992), aff'd, 36 F.3d 8, 1994 U.S. App. LEXIS 25997 (4th Cir. 1994).

Section did not apply where employer paid injured employee from his prior years’ earnings. —

Under the collateral source rule and this section, compensation paid by an employer to an employee during the period of the employee’s disability was not deductible from the quantum of damages the tortfeasor owed; hence, evidence of the employee’s loss of income was admissible in evidence at trial and the fact of any reimbursement to the employee by the employer shall not be admitted into evidence. Bullard v. Alfonso, 267 Va. 743 , 595 S.E.2d 284, 2004 Va. LEXIS 65 (2004).

Amounts written off under Medicaid. —

Because the court determined that the collateral source rule would allow a personal injury plaintiff to seek damages for the full costs of medical treatment regardless of whether any amounts were written off under Medicaid, the court allowed plaintiff to introduce the full amounts charged by her health care providers. Wright v. Smith, 641 F. Supp. 2d 536, 2009 U.S. Dist. LEXIS 55781 (W.D. Va. 2009).

§ 8.01-35.1. Effect of release or covenant not to sue in respect to liability and contribution.

  1. When a release or a covenant not to sue is given in good faith to one of two or more persons liable for the same injury to a person or property, or the same wrongful death:
    1. It shall not discharge any other person from liability for the injury, property damage or wrongful death unless its terms so provide; but any amount recovered against the other person or any one of them shall be reduced by any amount stipulated by the covenant or the release, or in the amount of the consideration paid for it, whichever is the greater. In determining the amount of consideration given for a covenant not to sue or release for a settlement which consists in whole or in part of future payment or payments, the court shall consider expert or other evidence as to the present value of the settlement consisting in whole or in part of future payment or payments. A release or covenant not to sue given pursuant to this section shall not be admitted into evidence in the trial of the matter but shall be considered by the court in determining the amount for which judgment shall be entered; and
    2. It shall discharge the person to whom it is given from all liability for contribution to any other person liable for the same injury to person or property or the same wrongful death.
  2. A person who enters into a release or covenant not to sue with a claimant is not entitled to recover by way of contribution from another person whose liability for the injury, property damage or wrongful death is not extinguished by the release or covenant not to sue, nor in respect to any amount paid by the person which is in excess of what was reasonable.
  3. For the purposes of this section, a covenant not to sue shall include any “high-low” agreement whereby a party seeking damages for injury to a person or property, or for wrongful death, agrees to accept as full satisfaction for any judgment no more than one sum certain and the party or parties from whom the damages are sought agree to pay no less than another sum certain regardless of whether any judgment rendered at trial is higher or lower than the respective sums certain set forth in the agreement and whereby such party provides notice to all of the other parties of the terms of such “high-low” agreement immediately after such agreement is reached.
  4. A release or covenant not to sue given pursuant to this section shall be subject to the provisions of §§ 8.01-55 and 8.01-424 .
  5. This section shall apply to all such covenants not to sue executed on or after July 1, 1979, and to all releases executed on or after July 1, 1980. This section shall also apply to all oral covenants not to sue and oral releases agreed to on or after July 1, 1989, provided that any cause of action affected thereby accrues on or after July 1, 1989. A release or covenant not to sue need not be in writing where parties to a pending action state in open court that they have agreed to enter into such release or covenant not to sue and have agreed further to subsequently memorialize the same in writing.

History. 1979, c. 697; 1980, c. 411; 1982, c. 196; 1983, c. 181; 1985, c. 330; 1989, c. 681; 2000, c. 351; 2007, c. 443.

Cross references.

As to effect of judgment against one joint wrongdoer, see § 8.01-443 .

The 2000 amendments.

The 2000 amendment by c. 351 added present subsection C, and redesignated former subsections C and D as present subsections D and E.

The 2007 amendments.

The 2007 amendment by c. 443 in subsection A, substituted “liable for the same injury to a person or property” for “in tort for the same injury, or the same property damage”; in subdivision A 1, substituted “other person” for “of the other tort feasors” and “person” for “tort feasor” in the first sentence; in subdivision A 2, substituted “person” for “tort feasor” and “person liable for the same injury to person or property or the same wrongful death” for “tort feasor” near the end; in subsection B, substituted “person” for “tort feasor” throughout; and in subsection C, substituted “for injury to a person or property, or for wrongful death” for “in tort” near the beginning and “parties” for “tort feasors” near the end.

Law Review.

For comment, “The Covenant Not to Sue: Virginia’s Effort to Bury the Common Law Rule Regarding the Release of Joint Tortfeasors,” see 14 U. Rich. L. Rev. 809 (1980).

For survey of Virginia law on torts for the year 1978-1979, see 66 Va. L. Rev. 375 (1980).

For comment discussing the retroactive application of this section, see 18 U. Rich. L. Rev. 829 (1984).

For 1985 survey of Virginia civil procedure and practice, see 19 U. Rich. L. Rev. 679 (1985).

For comment on decision, “Jones v. General Motors Corp., 856 F.2d 22 (4th Cir. 1988),” see 47 Wash. & Lee L. Rev. 504 (1990).

For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Accord and Satisfaction, §§ 1, 9.

CASE NOTES

Purpose. —

The General Assembly intended to change a rule of law which tended to reward a recalcitrant tort-feasor at the expense of a joint tort-feasor who was willing to settle out of court. The legislative intent, as shown by the statutory language, was to promote the use of a covenant not to sue by permitting payment thereunder and discharge of one joint tort-feasor without causing the covenant to effect the release of the other joint tort-feasors. Hayman v. Patio Prods., Inc., 226 Va. 482 , 311 S.E.2d 752, 1984 Va. LEXIS 286 (1984).

In 1979, recognizing the potential hardship under the common law, the Virginia legislature enacted this section. The statute provides that a release entered into by one joint tort-feasor does not necessarily discharge the remaining tort-feasors. The legislative purpose is to facilitate settlement and promote the use of releases. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106, 1987 U.S. Dist. LEXIS 12335 (W.D. Va. 1987).

Two policy goals underlie the uniform law from which this section was derived and guide its interpretation; the overarching purpose is to foster settlements in the multiple tortfeasor context and the ancillary goal is to prevent collusion and thereby reasonably ensure a fair distribution of responsibility for a plaintiff’s damages among tortfeasors. Dacotah Mktg. & Research v. Versatility, 21 F. Supp. 2d 570, 1998 U.S. Dist. LEXIS 15446 (E.D. Va. 1998).

Section facilitates prompt settlement. —

The statute authorizes payment of consideration under the covenant not to sue without discharging nonpaying joint tort-feasors. The statute protects the paying tort-feasor from liability for contribution and prohibits him from exacting contribution from nonpaying joint tort-feasors against whom claims remain outstanding. The statute facilitates prompt settlement, payment, and discharge of paying tort-feasors without releasing those nonpaying joint tort-feasors who prefer to have their liability determined in litigation, with its attendant delays. Hayman v. Patio Prods., Inc., 226 Va. 482 , 311 S.E.2d 752, 1984 Va. LEXIS 286 (1984).

Injured party protected from unnecessary delays and loss of claims. —

The effect of the statute is to protect the injured party from unnecessary delays and loss of claims. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106, 1987 U.S. Dist. LEXIS 12335 (W.D. Va. 1987).

For history and construction of section, see Carickhoff v. Badger-Northland, Inc., 562 F. Supp. 160, 1983 U.S. Dist. LEXIS 18525 (W.D. Va. 1983).

As applicable to Virginia Tort Claims Act. —

Trial court improperly applied a set off under § 8.01-35.1 for a driver’s settlement with a passenger and a liability limit of $100,000 in § 8.01-195.3 of the Virginia Tort Claims Act prior to a jury verdict in an action against the Commonwealth for negligence and nuisance; it was the jury’s responsibility to determine the amount of damages, and then the set off and the liability limit, respectively, should be applied to the jury verdict. Torloni v. Commonwealth, 274 Va. 261 , 645 S.E.2d 487, 2007 Va. LEXIS 90 (2007).

Section inapplicable to defamation verdict. —

This section was inapplicable to a jury verdict for a former employee against a former judge based on a statement made by the former judge to newspaper reporters because the injury resulting from the former judge’s statement was separate and distinct from the injury resulting from a later newspaper article. Askew v. Collins, 283 Va. 482 , 722 S.E.2d 249, 2012 Va. LEXIS 51 (2012).

Not applicable to legal malpractice claim. —

In a legal malpractice claim, the circuit court erred in denying the law firm’s second plea in bar and in not granting a partial bar to the malpractice plaintiff’s recovery because the law firm did not breach its duty to plaintiff by failing to correctly anticipate that the release agreement would not be governed by a former version of this statute as the supreme court later determined that the former version of this statute did not apply to legal malpractice cases, and by believing that the agreement had released some but not all of the co-defendants to the criminal malpractice claim. Smith v. McLaughlin, 289 Va. 241 , 769 S.E.2d 7, 2015 Va. LEXIS 23 (2015).

Construction with § 38.2-2206. —

Consistent with the supreme court’s jurisprudence and the General Assembly’s intent as expressed in §§ 8.01-35.1 and 38.2-2206, the tortfeasor remains primarily responsible for fully compensating the plaintiff for the injury the tortfeasor has caused. Llewellyn v. White, 297 Va. 588 , 831 S.E.2d 494, 2019 Va. LEXIS 91 (2019).

Effect of subdivision A 1 is to encourage precisely worded releases, while at the same time offer some relief from the harsh common law rule. Although the case concerned a general boiler plate release, the statute did not suggest any reading, other than a literal interpretation, was mandated. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106, 1987 U.S. Dist. LEXIS 12335 (W.D. Va. 1987).

Good faith requirement. —

The collusion that will invalidate a release under the good faith standard occurs when the arm’s length negotiations between the plaintiff and settling tortfeasors break down; a release is not given in good faith if the plaintiff no longer seeks to gain as much as possible through settlement and the release is given to facilitate a collusive alliance against or to otherwise facilitate intentionally injuring the interests of nonsettling parties. Dacotah Mktg. & Research v. Versatility, 21 F. Supp. 2d 570, 1998 U.S. Dist. LEXIS 15446 (E.D. Va. 1998).

Analysis of whether a release was given in good faith begins with the presumption that the settlement has been made in good faith, and the burden is on the challenging party to show that the settlement is infected with collusion or other tortious or wrongful conduct. Dacotah Mktg. & Research v. Versatility, 21 F. Supp. 2d 570, 1998 U.S. Dist. LEXIS 15446 (E.D. Va. 1998).

When a release given to one of two or more joint tortfeasors is the result of collusion between the plaintiff and the settling tortfeasor and is not given in good faith, the release does not discharge the colluding tortfeasor and is void and of no effect at all. Dacotah Mktg. & Research v. Versatility, 21 F. Supp. 2d 570, 1998 U.S. Dist. LEXIS 15446 (E.D. Va. 1998).

The words “releases executed” used in subsection D (now subsection E) of this section are not a mandate that a plaintiff sign a written release but merely a collective synonym for the several releases addressed in the preceding paragraphs of the statute, i.e., a release “given in good faith,” a release “given pursuant to this section,” a release “given,” and a release into which a party “enters.” Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10, 1995 Va. LEXIS 44 (1995).

At common law in Virginia, there was no right to contribution from joint tort-feasors, but that right was statutorily created by the Virginia General Assembly in 1919. This right is codified in § 8.01-34 , subject now to the provisions of this section. Carickhoff v. Badger-Northland, Inc., 562 F. Supp. 160, 1983 U.S. Dist. LEXIS 18525 (W.D. Va. 1983).

Section affects substantive rights of joint tort-feasors, not merely the procedural aspects of their remedy. Shiflet v. Eller, 228 Va. 115 , 319 S.E.2d 750, 1984 Va. LEXIS 180 (1984).

Issues affecting the substantive right of contribution are to be determined by the law which existed at the time of the tort giving rise to the cause of action for contribution. Shiflet v. Eller, 228 Va. 115 , 319 S.E.2d 750, 1984 Va. LEXIS 180 (1984).

Right of contribution. —

Approval of settlement agreement between debtors’ Liquidating Trust and law firm did not prevent any party from arguing (in the context of an actual case or controversy) that § 8.01-35.1 had limited applicability to a future asserted right of contribution. In re Health Diagnostic Lab., Inc., No. 15-32919, 2016 Bankr. LEXIS 3724 (Bankr. E.D. Va. Oct. 14, 2016).

Releasable parties not limited to health care provider. —

The settlement credit mandate of this section does not require that a person who has been released be a health care provider. It requires only that such a person and the defendant health care provider at trial be joint tortfeasors mutually liable for the same injury; health care group was such a joint tortfeasor. Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10, 1995 Va. LEXIS 44 (1995).

Applicability to vicariously liable parties. —

This section’s plain language appears to apply to a party who is vicariously liable, as its coverage extends to one of two or more persons liable in tort for the same injury. And while a master and servant are not technically joint tort-feasors with respect to the servant’s tortious act, in Virginia their liability is joint and several and governed by the same principles that are applicable to joint tort-feasors. Harris v. Aluminum Co. of Am., 550 F. Supp. 1024, 1982 U.S. Dist. LEXIS 15806 (W.D. Va. 1982).

There is no evidence that the General Assembly intended to exclude the vicarious liability of masters or principals from the scope of this section. Harris v. Aluminum Co. of Am., 550 F. Supp. 1024, 1982 U.S. Dist. LEXIS 15806 (W.D. Va. 1982).

The inclusion of a reference to “joint tort-feasors” in the title of the several acts affecting this section does not make the decision to apply the statute to those vicariously liable a constitutionally impermissible extension of the bounds of the act. Thurston Metals & Supply Co. v. Taylor, 230 Va. 475 , 339 S.E.2d 538, 1986 Va. LEXIS 149 (1986).

The application of this section is not limited to “joint tort-feasors,” as that term is narrowly defined, but the statute also applies to those vicariously liable as employers, masters, and principals. Thurston Metals & Supply Co. v. Taylor, 230 Va. 475 , 339 S.E.2d 538, 1986 Va. LEXIS 149 (1986).

Application not at odds with Constitution. —

Application of the plain words of the substantive language of this section to those vicariously liable, even though they technically are not joint tort-feasors, is not at odds with Va. Const., Art. IV, § 12 because it is in furtherance of the purpose of the enactment, which is to encourage settlements. Thurston Metals & Supply Co. v. Taylor, 230 Va. 475 , 339 S.E.2d 538, 1986 Va. LEXIS 149 (1986).

Compliance with insurance provisions. —

The public policy in favor of settlement of tort suits contained in this section has no bearing on the question of whether an insured must comply with policy provisions in order to collect insurance money in lieu of damages from a tort-feasor. Virginia Farm Bureau Mut. Ins. Co. v. Gibson, 236 Va. 433 , 374 S.E.2d 58, 5 Va. Law Rep. 1056, 1988 Va. LEXIS 155 (1988).

Pre-1979 right of contribution among joint tort-feasors included a right to be released when a joint tort-feasor has been released. Bartholomew v. Bartholomew, 233 Va. 86 , 353 S.E.2d 752, 3 Va. Law Rep. 1936, 1987 Va. LEXIS 149 (1987).

Offset not prohibited by FELA. Permitting a defendant to offset against the damages awarded the plaintiff the amount received by the plaintiff in a settlement with a third party does not violate the Federal employers’ Liability Act, 45 U.S.C. § 51 et seq., provision which proscribes a “device” enabling a defendant “to exempt itself from liability.” Downer v. CSX Transp., Inc., 256 Va. 590 , 507 S.E.2d 612, 1998 Va. LEXIS 151 (1998).

Offset not properly calculated. —

Trial court erred in calculating an offset from the settlement of a wrongful death action against one defendant that arose from a collision between the decedent’s truck and a train, as the settlement amount should have been subtracted from the damage award before calculating the prejudgment interest that was awarded by the jury. RGR, LLC v. Settle, 288 Va. 260 , 764 S.E.2d 8, 2014 Va. LEXIS 161 (2014).

No entitlement to offset. —

Circuit court did not err when it refused to reduce the judgment an insured obtained against a driver by the amount of the proceeds the insured received from her underinsured motorist policy because the insurer and the driver were not persons liable for the same injury; the insurer’s contractual obligation was to pay the insured because of the driver’s inadequate motor vehicle insurance, and that was not the same as the driver’s tort obligation to pay for damages caused by her negligence. Llewellyn v. White, 297 Va. 588 , 831 S.E.2d 494, 2019 Va. LEXIS 91 (2019).

Driver was not entitled to any credit for money she owed pursuant to a judgment an insured obtained against her that she had not paid because the insurer agreed with the insured not to interfere with the insured’s right to collect from the driver any amounts the driver was found to owe the insured; the insurer sought no consideration from and made no agreement with the driver to forgive any of the amount that it had the statutory right to seek from the driver. Llewellyn v. White, 297 Va. 588 , 831 S.E.2d 494, 2019 Va. LEXIS 91 (2019).

Recovery against other joint tort-feasors not barred by covenant not to sue. —

The effect of this section as first enacted was to prevent a covenant not to sue, drawn in compliance with the statute, from having the effect, upon payment of the agreed consideration, of a release and accord and satisfaction barring recovery from the other joint tort-feasors. Hayman v. Patio Prods., Inc., 226 Va. 482 , 311 S.E.2d 752, 1984 Va. LEXIS 286 (1984).

Amounts recovered under release or covenant not to sue. —

Pursuant to this section, the amounts recovered under a release or a covenant not to sue shall reduce the plaintiff ’s judgment against another by the amount stipulated in the covenant or release, irrespective of whether the settling party is in fact a joint tort-feasor. Greenbaum v. Travelers Ins. Co., 705 F. Supp. 1138, 1989 U.S. Dist. LEXIS 1446 (E.D. Va. 1989).

In determining amount of release monies to be credited against recovery, etc. the trial court must identify the amount of consideration paid by a tortfeasor for a release. In determining this amount, the court must look at the injury or damage covered by the release and, if more than a single injury, allocate, if possible, the appropriate amount of compensation for each injury. Tazewell Oil Co. v. United Va. Bank/Crestar Bank, 243 Va. 94 , 413 S.E.2d 611, 8 Va. Law Rep. 1784, 1992 Va. LEXIS 25 (1992).

In a case where a housing authority acted as an agent for a limited partnership in procuring a builders risk policy from an insurer, the trial court erred in failing to consider the application of subsection A of § 8.01-35.1 in determining economic loss damages, because a factor to be considered was whether the release or covenant not to sue in the settlement with the housing authority was for the same injury or property damage as the case at bar. Acordia of Va. Ins. Agency, Inc. v. Genito Glenn, L.P., 263 Va. 377 , 560 S.E.2d 246, 2002 Va. LEXIS 37 (2002).

In a contract dispute among an owner, contractor, subcontractor, and inspector for damages from the collapse of an underground rain tank, the circuit court erred in failing to consider whether the recitation in a settlement agreement between the owner and inspector was accurate regarding allocation of the consideration paid between the owner’s claims for attorney’s fees and the tank collapse and thus whether the subcontractor, who was found liable for the collapse, was entitled to an offset. William H. Gordon Assocs. v. Heritage Fellowship, 291 Va. 122 , 784 S.E.2d 265, 2016 Va. LEXIS 11 (2016).

Error in credit calculation found. —

Where trial court reduced the $2,000,000 jury verdict rendered against the hospital by $600,000 (the amount of the health care group’s settlement) and then reduced the remainder ($1,400,000) to the medical malpractice cap ($1,000,000), the plain meaning of this section and § 8.01-581.15 , read together, is that where there is a verdict by a jury or a judgment by a court against a health care provider for “injury to . . . a patient” and the total amount recovered in that action and in all settlements related to the medical malpractice injury exceeds one million dollars, the total amount the plaintiff can recover for that injury is $1,000,000. Accordingly, the trial court erred when it failed to apply the $600,000 credit for the statutory recovery cap in determining the quantum of plaintiff’s judgment. Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10, 1995 Va. LEXIS 44 (1995).

Distinction in subsection D (now subsection E) between covenants not to sue and releases is consistent with a long recognized distinction in Virginia common law. It was long the law of Virginia that a release of one joint tort-feasor amounted to a release of all joint tort-feasors. On the other hand, a covenant not to sue one joint tort-feasor did not necessarily prevent actions against fellow tort-feasors. Perdue v. Sears, Roebuck & Co., 694 F.2d 66, 1982 U.S. App. LEXIS 23739 (4th Cir. 1982).

Retroactive application of section, resulting in destruction of substantive right which a party was possessed of prior to enactment of section, is improper. Carickhoff v. Badger-Northland, Inc., 562 F. Supp. 160, 1983 U.S. Dist. LEXIS 18525 (W.D. Va. 1983).

In a medical malpractice case arising out of a surgical operation performed in 1977, where the patient’s committee sued the hospital and three physicians, jointly and severally, and in 1983 agreed to settle her claims against the physicians for $475,000, releasing the physicians and purporting to reserve her claims against the hospital, this section could not be applied retroactively to adversely affect hospital’s right of contribution from the released tort-feasors. Potomac Hosp. Corp. v. Dillon, 229 Va. 355 , 329 S.E.2d 41, 1985 Va. LEXIS 213, cert. denied, 474 U.S. 971, 106 S. Ct. 352, 88 L. Ed. 2d 320, 1985 U.S. LEXIS 4336 (1985).

Where defendant’s substantive right, manifested by her ability to defend successfully the suit by the plaintiff after plaintiff had released joint tort-feasor, would be impaired if the statute was permitted to operate retroactively, the application of the statute would be constitutionally invalid, and issues affecting the substantive right would be determined by the law which existed in 1976, the time of the tort giving rise to the cause of action for contribution. Bartholomew v. Bartholomew, 233 Va. 86 , 353 S.E.2d 752, 3 Va. Law Rep. 1936, 1987 Va. LEXIS 149 (1987).

When this section, including subsection D, adversely affects a substantive right, it cannot be applied retroactively to impair that right, because such application would violate the non-settling joint tort-feasor’s due process rights. Bartholomew v. Bartholomew, 233 Va. 86 , 353 S.E.2d 752, 3 Va. Law Rep. 1936, 1987 Va. LEXIS 149 (1987).

Section not retroactively applied so as to adversely affect right of contribution. —

Where the cause of action for contribution accruing to a joint tort-feasor arose at the time of the jointly negligent acts in October, 1977, it necessarily followed that this section, enacted in 1979, which adversely affected that substantive right, could not be applied retroactively to impair that right. Such a retroactive application of the enactment would violate his due process rights and would be invalid. Shiflet v. Eller, 228 Va. 115 , 319 S.E.2d 750, 1984 Va. LEXIS 180 (1984).

Applicable version of section determined by date release or covenant signed. —

The 1982 amendment, which added the second sentence of subdivision A 1 and added subsection D, is a clarification of the July 1, 1980, version of this section. There is no issue of whether this section is retroactive or prospective. Each version of this section applies to covenants not to sue and/or releases signed during the effective dates of each version. Statzer v. King Kutter Corp., 550 F. Supp. 1062, 1982 U.S. Dist. LEXIS 15908 (W.D. Va. 1982).

Not date cause of action arose. —

The court must look to the date of the release rather than the date that the cause of action arose in order to determine the applicable version of this section. Statzer v. King Kutter Corp., 550 F. Supp. 1062, 1982 U.S. Dist. LEXIS 15908 (W.D. Va. 1982).

Intent of parties is controlling on effect of release. —

A nondischarged tort-feasor may claim a setoff based on any sums paid by another to obtain a release, but the effect of the release itself is controlled by the intent of the parties as expressed in the terms of the writing. Lemke v. Sears, Roebuck & Co., 853 F.2d 253, 1988 U.S. App. LEXIS 10646 (4th Cir. 1988).

Written release, issued by an injured motorist to the other motorist involved in an auto accident, failed to bring an action against the auto manufacturer which named other motorist as third party defendant within the scope of this section, where the written release was executed two and one-half years after a similar oral release was given, and after the statute of limitations on injured motorist cause of action against other motorist had expired, and after the action against the manufacturer had commenced. Jones v. GMC, 856 F.2d 22, 1988 U.S. App. LEXIS 12140 (4th Cir. 1988).

Approval of releases. —

Those portions of a release that are not made part of a wrongful death compromise settlement approved by a circuit court are not binding on the parties to the release. Ramey v. Bobbitt, 250 Va. 474 , 463 S.E.2d 437, 1995 Va. LEXIS 128 (1995).

Trial court did not err in utilizing the present value of infant’s structured settlement with physician in reducing the infant’s verdict against the hospital. Under this section, the hospital was not entitled to a credit equal to the undiscounted sum of payments which the settlement agreement provided for the infant. Fairfax Hosp. Sys. v. McCarty, 244 Va. 28 , 419 S.E.2d 621, 8 Va. Law Rep. 3192, 1992 Va. LEXIS 55 (1992).

Nonsettling joint tort-feasor is not necessarily freed from liability for damages. Contribution may be recovered if his liability is established. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106, 1987 U.S. Dist. LEXIS 12335 (W.D. Va. 1987).

When settling tort-feasor may seek contribution from nonsettling tort-feasor. —

The legislature’s purpose in enacting this section supports the inference, that if a release between a claimant and a tort-feasor extinguishes the liability of a second tort-feasor, then the settling tort-feasor may still seek contribution from the nonsettling tort-feasor. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106, 1987 U.S. Dist. LEXIS 12335 (W.D. Va. 1987).

Principal not automatically released by covenant given to agent. —

A covenant not to sue given to an alleged agent pursuant to this section does not automatically release the alleged principal from vicarious liability based on the acts of the alleged agent. Harris v. Aluminum Co. of Am., 550 F. Supp. 1024, 1982 U.S. Dist. LEXIS 15806 (W.D. Va. 1982).

Inapplicable to indemnity rights arising from contractual relationship. —

This statute governs only those claims for contribution between tort feasors, a relation that is created in law by the commission of the tort. The statute does not purport to speak to indemnity rights which arise from a contractual relationship between contracting parties. Whittle v. Timesavers, Inc., 572 F. Supp. 584, 1983 U.S. Dist. LEXIS 13352 (W.D. Va. 1983), rev'd, 749 F.2d 1103, 1984 U.S. App. LEXIS 16248 (4th Cir. 1984).

Validity not affected by single document multi-claim release. —

There is no requirement of separate documents for the release of contract and tort claims. Consolidation of them in a single document does not defeat an otherwise valid compliance with this section as to the release of tort claims. Tazewell Oil Co. v. United Va. Bank/Crestar Bank, 243 Va. 94 , 413 S.E.2d 611, 8 Va. Law Rep. 1784, 1992 Va. LEXIS 25 (1992).

Indivisible injuries. —

Where there is one indivisible injury for which settlement has been consummated, unconditional release of one allegedly liable for the injury bars recovery against others also allegedly liable, regardless of the theory upon which liability is predicated. Cauthorn v. British Leyland, U.K., Ltd., 233 Va. 202 , 355 S.E.2d 306, 3 Va. Law Rep. 2276, 1987 Va. LEXIS 185 (1987).

Where the injuries complained of are those for which the compromise settlement provided compensation, and plaintiff sustained injuries which, although they may have had more than a single cause, constituted a single indivisible injury, her settlement with and release of the insurance companies and their insureds constituted an accord and satisfaction of her cause of action for her single indivisible injury, and as such, this release also released all other parties allegedly responsible for her injuries. Cauthorn v. British Leyland, U.K., Ltd., 233 Va. 202 , 355 S.E.2d 306, 3 Va. Law Rep. 2276, 1987 Va. LEXIS 185 (1987).

Trial court did not err in dismissing the exonerated individual’s motion for judgment, which sought to recover from the attorneys for alleged legal malpractice, after the exonerated individual was released from prison following the granting of his petition for habeas corpus based on evidence that other people actually committed the crimes for which he was wrongfully incarcerated; the trial court properly found that the exonerated individual suffered one indivisible injury and that he was not entitled to recover on a claim of legal malpractice since he had been compensated for that injury, his wrongful incarceration by the Commonwealth and his attempt to recover under a legal malpractice claim was merely trying to recover for the same wrong for which he had already been compensated. Cox v. Geary, 271 Va. 141 , 624 S.E.2d 16, 2006 Va. LEXIS 20 (2006).

Writing required. —

While none of the language of this section standing alone might be dispositive, the provision as a whole points to the requirement of a writing. Jones v. GMC, 856 F.2d 22, 1988 U.S. App. LEXIS 12140 (4th Cir. 1988) (decided prior to the 1989 amendment, which added the second and third sentences in present subsection E).

The statutory language of this section which speaks of executed releases and covenants appears to contemplate the signing of a written instrument. The drafters of the statute specifically selected the word “executed” in lieu of alternative terms such as “made” or “entered” which might have encompassed an oral agreement. This interpretation is further supported by other language in the statute which suggests that some written document was contemplated. Jones v. GMC, 856 F.2d 22, 1988 U.S. App. LEXIS 12140 (4th Cir. 1988) (decided prior to the 1989 amendment, which added the second and third sentences in present subsection E).

Requirement of a writing ensures that the parties thereto understand who is being released in return for what consideration. It serves notice to joint tort-feasors that they remain bound and avoids the need to undertake extensive litigation over questions of the validity and effect of the release, with all the attendant problems of having the parties and their attorneys take the stand to testify about their understanding of the terms, consideration, and conditions of the release. Jones v. GMC, 856 F.2d 22, 1988 U.S. App. LEXIS 12140 (4th Cir. 1988) (decided prior to the 1989 amendment, which added the second and third sentences in present subsection E).

Requirements of statute satisfied. —

Where hospital argued that, in order to avoid the effect of the common-law rule, plaintiff was required by this section to subscribe a written release before dismissing health care group with prejudice from the case, and where the settlement, consummated by delivery of check and execution of the joint tortfeasor release, was preceded by an agreement in principle memorialized by several writings, namely, the letter addressed by plaintiff’s counsel to health care group’s counsel, the copy of the written release later executed, unchanged, by plaintiff and the order subscribed by counsel for plaintiff and health care group reciting that claims had been settled, pursuant to this section, plaintiff complied with the requirements of this section and the hospital was not released. Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10, 1995 Va. LEXIS 44 (1995) (decided prior to the 1989 amendment).

Indivisible injuries. —

Trial court in a physician’s contribution action under §§ 8.01-34 and 8.01-35.1 against a pharmacy and its pharmacist erred when it gave the jury erroneous instructions on the issues of the reasonableness of an underlying settlement and the apportionment of damages between the parties, such that a new trial was required because the instructions bore on the issues of both liability and damages; apportionment between the parties should not have been before the jury where the evidence indicated that the injuries suffered by the patient in the underlying action were indivisible, such that a finding of joint liability rendered each party liable for the full injury, and as there was nothing to rebut the physician’s evidence as to the reasonableness of the settlement, that issue also should not have been a subject for the jury’s consideration. Sullivan v. Robertson Drug Co., 273 Va. 84 , 639 S.E.2d 250, 2007 Va. LEXIS 16 (2007).

CIRCUIT COURT OPINIONS

“Good faith.” —

“Good faith” settlement agreement under § 8.01-35.1 is one that is the product of an arm’s length negotiation untainted by collusion or other tortious or wrongful conduct. Fairfax Radiological Consultants, P.A. v. Bui, 72 Va. Cir. 570, 2002 Va. Cir. LEXIS 465 (Fairfax County Aug. 16, 2002).

Insurance agency not joint tort-feasors with settling defendants in earlier related case and not entitled to settlement credit. —

Settlement credit mandated by § 8.01-35.1 required that the tort-feasor seeking the credit and the other defendants involved in the settlement of a prior case had been joint tort-feasors mutually liable for the same injury; an insurance agency found to have been liable for its failure to name a partnership on a builders risk policy was not entitled to any credit for a settlement which the partnership made with the negligent tort-feasors in an earlier case involving a related construction project, as the insurance agency’s tort was separate and distinct from the torts of the other tort-feasors. Genito Glenn, L.P. v. Acordia of Va. Ins. Agency, Inc., 61 Va. Cir. 634, 2002 Va. Cir. LEXIS 383 (Virginia Beach May 10, 2002).

Plea in discharge sustained in contribution action where settlement in good faith. —

Doctor’s plea in discharge was sustained after the other doctor tried to file a contribution action against the doctor once the other doctor was found liable to the patient in a medical malpractice suit, as the evidence did not show that the doctor’s settlement with the patient was not made in good faith, or was otherwise the product of collusion or tortious conduct. Ponirakis v. Choi, 62 Va. Cir. 21, 2003 Va. Cir. LEXIS 83 (Fairfax County Apr. 18, 2003).

Release given in good faith. —

Release of the driver in a traffic accident case and a covenant not to sue did not release the manufacturer from liability in the injured person’s products liability case, and, despite language in the release that set forth a specific amount for the injured person’s eye injury, was not in bad faith, being expressly allowed by the clear language of § 8.01-35.1 ; the amount of consideration paid for the release was a matter to be determined at such time as judgment was entered in the case. Benitez v. Ford Motor Co., 69 Va. Cir. 323, 2005 Va. Cir. LEXIS 209 (Fairfax County Nov. 23, 2005).

Uneven distribution of liability between a settling and a non-settling tortfeasor is clearly contemplated and permitted by § 8.01-35.1 and is not grounds to allow the latter to seek contribution from the former, absent a showing that the release was procured by collusion or was otherwise entered into in bad faith. Fairfax Radiological Consultants, P.A. v. Bui, 72 Va. Cir. 570, 2002 Va. Cir. LEXIS 465 (Fairfax County Aug. 16, 2002).

As a pretrial settlement of a malpractice claim by plaintiffs and a doctor was made in good faith and without collusion by design or by operation of law, and the doctor did not reserve any right to veto plaintiffs’ settlement with his former co-defendant, a radiological group, under § 8.01-35.1 , the group could not seek contribution from the doctor to satisfy the judgment entered against it. Fairfax Radiological Consultants, P.A. v. Bui, 72 Va. Cir. 570, 2002 Va. Cir. LEXIS 465 (Fairfax County Aug. 16, 2002).

Indivisible injuries. —

Where the corporation had not shown that it and the manufacturer were liable for the same indivisible injury because (1) any injury to the homeowners because the manufacturer produced a defective stucco, which was applied to their home, must have related to all the stucco applied, (2) the injury caused by breach of contract by the corporation (defective application of the stucco) did not under the evidence occur every place that the stucco was applied, and (3) while the injury for the defective product and for constructive fraud would have been the same, there was no way to tell if the jury found the corporation liable for constructive fraud because of the general nature of the verdict and the fact that the case went to the jury on two causes of action, the reduction provisions did not apply. Herman v. McCarthy Enters., 63 Va. Cir. 181, 2003 Va. Cir. LEXIS 333 (Loudoun County Sept. 29, 2003).

Defendant entitled to settlement credit. —

As the unjust enrichment, fraudulent conveyance and conversion claims alleged against co-defendant, who settled before trial, left the debtors unable to pay back the $150,000 loaned by plaintiffs, and caused the same $150,000 loss to plaintiffs as caused by defendant’s fraud, defendant was entitled to a settlement credit based on co-defendant’s settlement. Oswald v. Holtzman, 90 Va. Cir. 9, 2015 Va. Cir. LEXIS 15 (Fairfax County Jan. 20, 2015).

Calculation of settlement credit. —

Defendant was awarded a settlement credit of $77,571, which was calculated by applying the settlement percentage paid by co-defendant, who settled before trial, to the value of the claims; plaintiffs accepted a $100,000 payment in exchange for releasing co-defendant from claims with a known value of $193,370, comprised of $150,000 in damages, fees of $43,370 and the possibility of punitive damages, which made the settlement amount approximately 51.71 percent of the value of the claims, exclusive of punitive damages. Oswald v. Holtzman, 90 Va. Cir. 9, 2015 Va. Cir. LEXIS 15 (Fairfax County Jan. 20, 2015).

§ 8.01-36. Joinder of action of tort to infant with action for recovery of expenses incurred thereby and claim for recovery of expenses by infant.

  1. Where there is pending any action by an infant plaintiff against a tort-feasor for a personal injury, where the cause of action accrued prior to July 1, 2013, any parent or guardian of such infant, who is entitled to recover from the same tort-feasor the expenses of curing or attempting to cure such infant from the result of such personal injury, may bring an action against such tort-feasor for such expenses, in the same court where such infant’s case is pending, either in the action filed in behalf of the infant or in a separate action. If the claim for expenses be by separate action, upon motion of any party to either case, made to the court at least one week before the trial, both cases shall be tried together at the same time as parts of the same transaction. But separate verdicts when there is a jury trial shall be rendered, and the judgment shall distinctly separate the decision and judgment in the separate causes of action.In the event of the cases being carried to the Court of Appeals, which may be done if there be the jurisdictional amount in either case, they shall both be carried together as one case and record, but the Court of Appeals shall clearly specify the decision in each case, separating them in the decision to the extent necessary to do justice among the parties. If an appeal is taken from the judgment of the Court of Appeals, the Supreme Court, in matters in which it grants the petition for appeal, shall clearly specify the decision in each case, separating them in the decision to the extent necessary to do justice among the parties.
  2. For causes of action that accrue on or after July 1, 2013, the past and future expenses of curing or attempting to cure an infant of personal injuries proximately caused by a tort-feasor are damages recoverable by an infant in a cause of action against the tort-feasor and, if applicable to the infant’s cause of action, are subject to the limitation on damages in § 8.01-581.15 . Any parent or guardian of such infant who has paid for or is personally obligated to pay for past or future expenses to cure or attempt to cure the infant shall have a lien and right of reimbursement against any recovery by the infant up to the amount the parent or guardian has actually paid or is personally obligated to pay. The right to reimbursement of any parent or guardian shall accrue upon the first tender of funds of any recovery from a tort-feasor to the infant. Court approval of the infant settlement shall release party defendants from all claims for past or future expenses of curing or attempting to cure the infant.Nothing in this section shall relieve a parent of the obligation to pay for the medical expenses of curing or attempting to cure the infant as such obligation exists under current law.

History. Code 1950, § 8-629; 1954, c. 333; 1973, c. 277; 2013, cc. 551, 689; 2021, Sp. Sess. I, c. 489.

For this section as in effect until January 1, 2022, see the bound volume.

Editor’s note.

Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

The 2013 amendments.

The 2013 amendments by cc. 551 and 689 are identical, and added the subsection A designator and added subsection B; and inserted “where the cause of action accrued prior to July 1, 2013” in the first sentence in subsection A.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, in subsection A in the second paragraph, substituted “Court of Appeals” for “Supreme Court” twice and added the last sentence.

Cross references.

For rule of court as to commencement of civil actions, see Rule 3:2.

Michie’s Jurisprudence.

For related discussion, see 5C M.J. Damages, § 26.

CASE NOTES

Editor’s note.

Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

This section recognizes the common-law rule that two separate causes of action arise out of an injury to an infant by wrongful act. One cause of action is on behalf of the infant to recover damages for pain and suffering, permanent injury and impairment of earning capacity after attaining majority. The other is on behalf of the parent for loss of services during minority and necessary expenses incurred for the infant’s treatment. Moses v. Akers, 203 Va. 130 , 122 S.E.2d 864, 1961 Va. LEXIS 231 (1961).

An infant is not entitled to recover the expenses incurred in healing or attempting to be healed of his injuries in an action brought against a tort-feasor to recover damages for personal injuries unless (1) he has paid or agreed to pay the expenses; or (2) he alone is responsible by reason of his emancipation or the death or incompetency of his parents; or (3) the parent has waived the right of recovery in favor of the infant; or (4) recovery therefor is permitted by statute. Moses v. Akers, 203 Va. 130 , 122 S.E.2d 864, 1961 Va. LEXIS 231 (1961).

Father’s cause of action derivative. —

A father’s cause of action for medical and incidental expenses was a derivative action, and where there was no verdict in the child’s case, there could be none in the father’s case. Norfolk S. Ry. v. Fincham, 213 Va. 122 , 189 S.E.2d 380, 1972 Va. LEXIS 317 (1972).

CIRCUIT COURT OPINIONS

Parent’s action for medical expenses. —

Doctor’s plea in bar and motions to dismiss and to join a child and his father were denied because the statute at issue did not expressly or implicitly restrict or bar the mother’s common-law right of action for medical expenses in the manner alleged by the doctor where the first clause of the statute did not expressly state that a personal injury action on behalf of the child must be pending before the mother could bring her claim, the statute did not clearly express a legislative intent to change the common law and abridge the mother’s right of action, and the mother’s claim for medical expenses and the child’s personal injury claim were governed by different statutes of limitation. Pancho v. Johnson, 94 Va. Cir. 64, 2016 Va. Cir. LEXIS 110 (Norfolk July 25, 2016).

Parents may initiate action as child’s next friend. —

For purposes of the parents’ pregnancy-related medical malpractice lawsuit, because the doctor’s allegedly tortious conduct occurred while the parents’ son was still in utero, the court sustained defendants’ pleas in bar as the parents’ claims for their son’s medical expenses were derivative of a claim by the son for personal injuries, and the facts affirmatively showed no claim for personal injuries on behalf of the son currently pending; furthermore, the son’s personal injury claim had to be brought in his name by his next friend under § 8.01-8 , and could not be subsumed into a claim for personal injuries brought by the parents. Brown v. Tashman, 100 Va. Cir. 311, 2018 Va. Cir. LEXIS 620 (Fairfax County Nov. 9, 2018).

§ 8.01-37. Recovery of lost wages in action for injuries to emancipated infant.

In any suit for personal injuries brought on behalf of an emancipated infant, when such infant has sustained lost wages as a result of such injuries, he shall be entitled to recover such lost wages as a part of his damages. Where recovery is made hereunder or where recovery is attempted to be made and a decision on the merits adverse to said infant results, no other person may recover such lost wages.

History. Code 1950, § 8-629.1; 1970, c. 421; 1977, c. 617.

Michie’s Jurisprudence.

For related discussion, see 5C M.J. Damages, § 27.

§ 8.01-37.1. Claims for medical services provided by United States; proof of reasonable value.

Whenever any person sustains personal injuries caused by the alleged negligence of another, and a claim against any person alleged to be liable is created in favor of the United States under federal law (42 U.S.C. § 2651 et seq.) for the reasonable value of medical, surgical or dental care and treatment provided, the injured party may, on behalf of the United States, claim the reasonable value of the medical services provided as an element of damages in a civil action against the person alleged to be liable. It shall not be required that the United States intervene in the action or be made a party in order to establish its claim. A sworn written statement of the authorized representative of the department or agency providing such services prepared in accordance with the regulations promulgated pursuant to 42 U.S.C. § 2652 shall be admissible as evidence of the reasonable value of the care and treatment provided.

History. 1984, c. 42; 1985, c. 205.

CASE NOTES

No distinguishing between injured infants and injured adults. —

This statute does not distinguish between injured infants and injured adults as it uses the term “injured persons.” Hutto v. BIC Corp., 800 F. Supp. 1367, 1992 U.S. Dist. LEXIS 19990 (E.D. Va. 1992).

Parents’ cause of action for medical expenses accrued at the time they became liable to pay injured minor’s medical bills. Hutto v. BIC Corp., 800 F. Supp. 1367, 1992 U.S. Dist. LEXIS 19990 (E.D. Va. 1992).

§ 8.01-38. Tort liability of hospitals.

Hospital as referred to in this section shall include any institution within the definition of hospital in § 32.1-123 .

No hospital, as defined in this section, shall be immune from liability for negligence or any other tort on the ground that it is a charitable institution unless (i) such hospital renders exclusively charitable medical services for which service no bill for service is rendered to, nor any charge is ever made to the patient or (ii) the party alleging such negligence or other tort was accepted as a patient by such institution under an express written agreement executed by the hospital and delivered at the time of admission to the patient or the person admitting such patient providing that all medical services furnished such patient are to be supplied on a charitable basis without financial liability to the patient. However, notwithstanding the provisions of § 8.01-581.15 a hospital which is exempt from taxation pursuant to § 501(c)(3) of Title 26 of the United States Code (Internal Revenue Code of 1954) and which is insured against liability for negligence or other tort in an amount not less than $500,000 for each occurrence shall not be liable for damage in excess of the limits of such insurance, or in actions for medical malpractice pursuant to Chapter 21.1 (§ 8.01-581.1 et seq.) for damages in excess of the amount set forth in § 8.01-581.15 .

History. Code 1950, § 8-629.2; 1974, c. 552; 1976, c. 765; 1977, c. 617; 1983, c. 496; 1986, cc. 389, 454; 2000, c. 464.

The 2000 amendments.

The 2000 amendment by c. 464 substituted “for damages in excess of the amount set forth in § 8.01-581.15 ” for “the lesser of the limits of such insurance or $1 million” at the end of the second paragraph.

Law Review.

For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974).

For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

For survey of Virginia law on torts for the year 1976-77, see 63 Va. L. Rev. 1491 (1977).

For a re-examination of sovereign tort immunity in Virginia, see 15 U. Rich. L. Rev. 247 (1981).

For article, “Charitable Immunity: What Price Hath Charity?,” see 28 U. Rich. L. Rev. 953 (1994).

For a review of damages in medical malpractice in Virginia, see 33 U. Rich. L. Rev. 919 (1999).

For article, “Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law,” see 73 Wash & Lee Law Rev. 557 (2016).

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Hospitals and Sanitariums, § 7.

CASE NOTES

Immunity for hospitals providing medical care free of charge. —

The Virginia General Assembly eliminated charitable immunity for most hospitals, essentially limiting its application to hospitals that provide medical care free of charge. Davidson v. Colonial Williamsburg Found., 817 F. Supp. 611, 1993 U.S. Dist. LEXIS 11667 (E.D. Va. 1993).

Under this section, charitable hospitals are immune from liability in Virginia if they do not charge patients for services and 26 U.S.C. § 501(c)(3) tax-exempt hospitals have limited liability. Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 1994 U.S. App. LEXIS 34586 (4th Cir. 1994).

College was not entitled to use the defense of charitable immunity from tort liability, where the charter did not specifically restrict operation of the college to charitable or eleemosynary purposes nor was the manner of operation of the college strictly charitable in nature. Radosevic v. Virginia Intermont College, 633 F. Supp. 1084, 1986 U.S. Dist. LEXIS 26626 (W.D. Va. 1986).

The public policy in Virginia favors a more restrictive approach to determining that an institution is immune from tort liability on the grounds of the charitable immunity doctrine. This is evidenced by the legislative abrogation of the doctrine of charitable immunity for hospitals and the judicial reluctance to automatically apply a charitable label to various institutions. Radosevic v. Virginia Intermont College, 633 F. Supp. 1084, 1986 U.S. Dist. LEXIS 26626 (W.D. Va. 1986).

The 1986 amendment to this section merely clarified its application. Etheridge v. Medical Center Hosps., 237 Va. 87 , 376 S.E.2d 525, 5 Va. Law Rep. 1438, 1989 Va. LEXIS 27 (1989).

Relationship to other laws. —

Section 501(c)(3) health care provider was not immune from tort liability even though it was not a hospital as defined in § 32.1-123 , because the provider did not operate as a charitable institution. It was created to correct billing and collection issues, the ratio of its revenue to its charity work cost was disproportionate, it used a profit-based bonus system, and it did not accept charitable gifts. Univ. of Va. Health Servs. Found. v. Morris, 275 Va. 319 , 657 S.E.2d 512, 2008 Va. LEXIS 39 (2008).

CIRCUIT COURT OPINIONS

Provider of blood products. —

Charitable immunity doctrine was not applicable to the blood provider in a wrongful death action brought after the deceased allegedly died from contaminated blood, because the provider supplied the hospital with blood products for a fee, and the hospital, in turn, charged its patients for the cost of providing the blood products, over $10,000 in the deceased’s case; the indirect provision of blood and blood products by the provider did not make it a charity and did not make the deceased a recipient of a charitable benefit. Rogers v. Va. Blood Servs., 64 Va. Cir. 346, 2004 Va. Cir. LEXIS 195 (Richmond Apr. 7, 2004).

Health Services Foundation was not entitled to use the defense of charitable immunity. —

University health services foundation did not qualify for charitable immunity under § 8.01-38 because the foundation’s articles of incorporation did not exclusively limit the foundation to charitable purposes, charity was not the exclusive or even the central purpose in the foundation’s formation, and the foundation derived none of its revenue from charitable donations. Morris v. Univ. of Va. Health Servs. Found., 72 Va. Cir. 193, 2006 Va. Cir. LEXIS 293 (Charlottesville Oct. 25, 2006), aff'd, 275 Va. 319 , 657 S.E.2d 512, 2008 Va. LEXIS 39 (2008).

Foundation not a hospital for purposes of bar on charitable immunity. —

Foundation was not a hospital under § 8.01-38 , as the foundation was not a “facility” pursuant to § 32.1-123 ; rather, it was the entity that employed the physicians who cared for patients at a university hospital. The fact that the foundation owned and operated several clinics in outlying areas did not change this analysis. MacArthur v. Univ. of Va. Health Servs. Found., 72 Va. Cir. 322, 2006 Va. Cir. LEXIS 294 (Charlottesville Dec. 8, 2006), rev'd, 275 Va. 319 , 657 S.E.2d 512, 2008 Va. LEXIS 39 (2008) (see note above).

Because a foundation did not own facilities and did not operate as a hospital, and was unlicensed, it was not a hospital for purposes of the statutory bar on charitable immunity; the foundation’s plea of charitable immunity was sustained in a negligence action because, inter alia, the foundation operated for a charitable purpose of furthering the education of medical students. Wright v. Silver, 72 Va. Cir. 500, 2007 Va. Cir. LEXIS 14 (Norfolk Feb. 14, 2007), rev'd, 276 Va. 555 , 667 S.E.2d 785, 2008 Va. LEXIS 118 (2008).

Nursing facility was a charitable institution. —

In a nursing facility resident’s action for damages following a fire, the facility, which was not licensed pursuant to § 32.1-123 et seq., was immune from tort liability under the doctrine of charitable immunity and did not fall under the scope of § 8.01-38 ’s denial of charitable immunity to hospitals. The facility’s charter established the rebuttable presumption that it was a charitable institution, and the resident failed to rebut that presumption. Rogers v. Va. Home, 83 Va. Cir. 423, 2011 Va. Cir. LEXIS 138 (Richmond Oct. 5, 2011).

Nursing home’s plea bar was sustained in a medical malpractice and negligence action brought by an administrator of a deceased patient’s estate because the evidence proved that the home operated as a charity, immune from the tort claims under the statute; it was organized as a non-stock, not-for-profit corporation, and its articles of incorporation stated a charitable purpose. Estate of Zabrovskiy v. Beth Sholom Home of Va., Inc., 85 Va. Cir. 470, 2012 Va. Cir. LEXIS 191 (Henrico County Oct. 25, 2012).

§ 8.01-38.1. Limitation on recovery of punitive damages.

In any action accruing on or after July 1, 1988, including an action for medical malpractice under Chapter 21.1 (§ 8.01-581.1 et seq.), the total amount awarded for punitive damages against all defendants found to be liable shall be determined by the trier of fact. In no event shall the total amount awarded for punitive damages exceed $350,000. The jury shall not be advised of the limitation prescribed by this section. However, if a jury returns a verdict for punitive damages in excess of the maximum amount specified in this section, the judge shall reduce the award and enter judgment for such damages in the maximum amount provided by this section.

History. 1987, c. 255.

Cross references.

As to award of punitive damages for stalking, see § 8.01-42.3 .

Law Review.

For comment, “The Constitutional Attack on Virginia’s Medical Malpractice Cap: Equal Protection and the Right to Jury Trial,” see 22 U. Rich. L. Rev. 95 (1987).

For case note, “Punitive Damage ‘Overkill’ After TXO Production Corp. v. Alliance Resources: The Need for a Congressional Solution,” see 36 Wm. & Mary L. Rev. 751 (1995).

For a note, “The Supreme Court’s Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards,” see 86 Va. L. Rev. 1249 (2000).

For Article, “Why Federal Rule of Evidence 403 is Unconstitutional, and Why it Matters,” see 47 U. Rich. L. Rev. 1077 (2013).

Research References.

Conason, Deutsch, and Raffa, Damages in Tort Actions (Matthew Bender).

Michie’s Jurisprudence.

For related discussion, see 5C M.J. Damages, § 74.

CASE NOTES

Constitutionality. —

This section does not violate the due process guarantees secured by the Federal and Virginia Constitutions. Wackenhut Applied Technologies Ctr., Inc. v. Sygnetron Protection Sys., 979 F.2d 980, 1992 U.S. App. LEXIS 29701 (4th Cir. 1992).

“Any action” not limited to unintentional tort actions. —

There is no definitional language indicating that the term “any action” is limited to unintentional tort actions. Wackenhut Applied Technologies Ctr., Inc. v. Sygnetron Protection Sys., 979 F.2d 980, 1992 U.S. App. LEXIS 29701 (4th Cir. 1992).

Review of punitive damage awards can no longer be conducted under “excessiveness” standard. —

In order to comport with the due process requirements of the Fifth Amendment, post-trial and appellate review of punitive damage awards in the federal courts of the Fourth Circuit, based upon state statutes and common law, can no longer be conducted under Virginia’s “excessiveness” standard but must instead proceed under standards similar to those enunciated by the Alabama courts in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989), and Central Ala. Elec. Coop. v. Tapley, 546 So. 2d 371 (Ala. 1989), as upheld in Pacific Mut. Life Ins. Co. v. Haslip, 1991 U.S. LEXIS 1306, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991);.Johnson v. Hugo's Skateway, 949 F.2d 1338, 1991 U.S. App. LEXIS 27674 (4th Cir. 1991).

Cap applies to action as a whole. —

The plain meaning of this section dictates that the cap on punitive damage awards applies to the action as a whole and not to each defendant. Al-Abood v. El-Shamari, 217 F.3d 225, 2000 U.S. App. LEXIS 15437 (4th Cir. 2000).

Punitive damages award set aside. —

In an action for a continuing trespass on real property due to encroaching fiber optic lines that were not installed by defendant business, the trial court’s award of punitive damages to the landowners was reversed, as: (1) insufficient evidence was presented to support the same; (2) the business attempted to negotiate in good faith for their removal once it learned of their presence; (3) the landowners never sought an injunction requiring their immediate removal, but instead sought a cease and desist order three weeks prior to trial; and (4) in response to said letter, the business had already initiated the process to begin removal of the lines; hence, the business did not act with the degree of recklessness required to support a punitive damages award. Xspedius Mgmt. Co. of Va., L.L.C. v. Stephan, 269 Va. 421 , 611 S.E.2d 385, 2005 Va. LEXIS 36 (2005).

Where a former employee sued his former supervisor and employer for malicious prosecution and defamation, the trial court erred in denying the employer’s motion to strike the punitive damages claim asserted against it, as there was no evidence it engaged in, authorized, or ratified the supervisor’s actions, and the evidence did not establish that the supervisor was in a sufficiently high position so that his actions were actually the employer’s actions for purposes of punitive damages liability. Egan v. Butler, 290 Va. 62 , 772 S.E.2d 765, 2015 Va. LEXIS 86 (2015).

Punitive damages award reduced. —

In this malicious prosecution action, while there was a legally sufficient evidentiary basis for the jury’s return of punitive damages, as a matter of law, the punitive damage award must be reduced to a total of $350,000 because defendants allowed the criminal prosecution of the employee to continue despite unequivocally knowing that either the story the dockworker relayed to the regional security investigator, that the regional security investigator relayed to another dockworker and the police was false, or the dockworker’s handwritten statement was false, or both. Bennett v. R&L Carriers Shared Servs., LLC, 744 F. Supp. 2d 494, 2010 U.S. Dist. LEXIS 104884 (E.D. Va. 2010), aff'd, 492 Fed. Appx. 315, 2012 U.S. App. LEXIS 12853 (4th Cir. 2012).

Trial court abused its discretion in setting aside the jury award for compensatory damages. —

The record did not support the conclusion that the award was excessive or was the product of jury confusion and commingling, and the trial court failed to consider elements of recovery upon which the compensatory damage award could be based and the evidence which supported those elements. Gov't Micro Res., Inc. v. Jackson, 271 Va. 29 , 624 S.E.2d 63, 2006 Va. LEXIS 1 (2006).

CIRCUIT COURT OPINIONS

Punitive damages based on driver’s falling asleep. —

Allegation that defendant had driven all night before transporting plaintiff’s decedents could support a cause of action that would result in an award of punitive damages if the plaintiff were to prove that defendant driver knew or should have known that he was likely to fall asleep and as a result showed a reckless disregard for human life, and accordingly plaintiff’s case would not be dismissed pending further discovery; nevertheless, plaintiff’s request for $1,000,000 in punitive damages exceeded the statutory limit in § 8.01-38.1 .Bowen v. Tucker, 58 Va. Cir. 524, 2002 Va. Cir. LEXIS 173 (Wise County June 17, 2002).

Reduction of punitive damages ad damnum clause to statutory cap. —

Court reduced the plaintiff’s punitive damage ad damnum claim for her accident injuries from $500,000 to the $350,000 cap and found the plaintiff sufficiently alleged the truck driver’s and the driver’s employer’s acts regarding prior knowledge of defective brakes, steering, and tires, and excessive length, to support punitive damages against both of them if proven. Small v. Hanson, 66 Va. Cir. 445, 2000 Va. Cir. LEXIS 649 (Nelson County May 31, 2000).

Because a resident’s injury due to malpractice occurred on February 7, 2009, which was between July 1, 2008 and June 30, 2012, § 8.01-581.15 limited the resident’s total recovery to $2 million, inclusive of compensatory and punitive damages, and § 8.01-38.1 limited punitive damages to a maximum award of $350,000; the statutory caps did not limit the resident’s post-judgment interest under § 8.01-382 . Crouse v. Med. Facilities of Am. XLVIII, 86 Va. Cir. 168, 2013 Va. Cir. LEXIS 7 (Roanoke Jan. 22, 2013).

Although pre-judgment interest is limited by statutory caps, neither § 8.01-581.15 nor § 8.01-38.1 imposes a limit on post-judgment interest under § 8.01-382 . Crouse v. Med. Facilities of Am. XLVIII, 86 Va. Cir. 168, 2013 Va. Cir. LEXIS 7 (Roanoke Jan. 22, 2013).

Remittitur of punitive damages to equal compensatory damages award. —

Jury’s verdict in a defamation case required that it be remitted because the verdict was so excessive as to shock the conscience of the court and compelled the conclusion that the verdict was the product of passion or prejudice or some misunderstanding of the facts or the law. The court, therefore, awarded compensatory damages in a lesser amount and awarded punitive damages in an amount equal to the compensatory damages awarded. Thomas v. Psimas, 101 Va. Cir. 455, 2019 Va. Cir. LEXIS 19 (Norfolk Jan. 17, 2019).

Pleading of punitive damages. —

While this section places a $350,000 statutory cap on punitive damages, by the clear language of the statute, the cap pertains to the amount of punitive damages that may recovered by a successful party, not the amount that may be sought in the complaint and to which a jury may find a defendant liable. Fid. Nat'l Title Ins. Co. v. Wash. Settlement Group, LLC, 87 Va. Cir. 77, 2013 Va. Cir. LEXIS 136 (Fairfax County Sept. 4, 2013).

Demurrer sustained as to punitive damages claim. —

Demurrer was overruled as to punitive damages claim because the former employee alleged that the former employer’s conduct was “willful and wanton.” Hatten v. Campbell, 71 Va. Cir. 95, 2006 Va. Cir. LEXIS 118 (Chesterfield County June 5, 2006).

Animal advocacy group’s demurrer was sustained as to the dog owners’ claim for intentional infliction of emotional distress because reasonable people could find that taking the owners’ dog and killing it was outrageous, the factual allegations sufficiently alleged the group’s authorization of the act, and the owners could plead more than the statutory limit for punitive damages. Zarate v. People for the Ethical Treatment of Animals, 93 Va. Cir. 430, 2016 Va. Cir. LEXIS 105 (Norfolk June 14, 2016).

§ 8.01-39. Completion or acceptance of work not bar to action against independent contractor for personal injury, wrongful death or damage to property.

In any civil action in which it is alleged that personal injury, death by wrongful act or damage to property has resulted from the negligence of or breach of warranty by an independent contractor, it shall not be a defense by such contractor to such action that such contractor has completed such work or that such work has been accepted as satisfactory by the owner of the property upon which the work was done or by the person hiring such contractor.

Nothing contained herein shall be construed to limit, modify or otherwise affect the provisions of § 8.01-250 .

History. Code 1950, § 8-629.3; 1974, c. 669; 1977, c. 617.

Law Review.

For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974).

For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

Michie’s Jurisprudence.

For related discussion, see 3C M.J. Commercial Law, § 13.

§ 8.01-40. Unauthorized use of name or picture of any person; punitive damages; statute of limitations.

  1. Any person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person’s name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award punitive damages.
  2. No action shall be commenced under this section more than 20 years after the death of such person.

History. Code 1950, § 8-650; 1977, c. 617; 2015, c. 710.

REVISERS’ NOTE

The first sentence of former § 8-650 was transferred to § 18.2-216.1 since its import is purely penal. The civil remedy retained in § 8.01-40 A was expanded by removing the restriction that the unauthorized use must pertain to a Virginia resident. Subsection A was otherwise rewritten without material change in substance.

Subsection B establishes a twenty-year limitation period which begins upon the death of the person whose name is misused.

Cross references.

For rules of court as to practice and procedure in civil actions, see Rules 3:1 through 3:25.

The 2015 amendments.

The 2015 amendment by c. 710 substituted “punitive damages” for “exemplary damages” at the end of subsection A; and substituted “20 years” for “twenty years” in subsection B.

Law Review.

For comment, “The Case for a Broader Right of Privacy in Virginia,” see 7 Wm. & Mary L. Rev. 127 (1966).

For survey of Virginia law on torts for the year 1976-77, see 63 Va. L. Rev. 1491 (1977).

For 1995 survey of civil practice and procedure, see 29 U. Rich. L. Rev. 897 (1995).

For a symposium, “Aggressive Newsgathering and the First Amendment,” see 33 U. Rich. L. Rev. 1121 (2000).

For an essay, “Privacy and Celebrity: An Essay on the Nationalization of Intimacy,” see 33 U. Rich. L. Rev. 1121 (2000).

For an article, “Protect the Press: A First Amendment Standard for Safeguarding Aggressive Newsgathering,” see 33 U. Rich. L. Rev. 1143 (2000).

For an article, “Ride-alongs, Paparazzi, and Other Media Threats to Privacy,” see 33 U. Rich. L. Rev. 1167 (2000).

For an article, “I Spy: The Newgatherer Under Cover,” see 33 U. Rich. L. Rev. 1185 (2000).

For an article, “Qualified Intimacy, Celebrity, and the Case for a Newgathering Privilege,” see 33 U. Rich. L. Rev. 1233 (2000).

Michie’s Jurisprudence.

For related discussion, see 13B M.J. Names, § 2.

CASE NOTES

Constitutionality. —

Subsection A of this section, as applied to the facts of the instant case — plaintiff’s name was prominently featured in real estate flyer — is not constitutionally invalid under either the free-speech provisions of the First Amendment to the federal Constitution or the applicable provisions of Va. Const., Art. I, § 12. Town & Country Properties, Inc. v. Riggins, 249 Va. 387 , 457 S.E.2d 356, 1995 Va. LEXIS 54 (1995).

This section is in derogation of the common law. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204, 1981 U.S. Dist. LEXIS 15822 (W.D. Va. 1981).

And therefore must be strictly construed. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204, 1981 U.S. Dist. LEXIS 15822 (W.D. Va. 1981).

Virginia recognizes no right of privacy other than that specifically conferred by this section. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204, 1981 U.S. Dist. LEXIS 15822 (W.D. Va. 1981).

No general right of privacy exists in the law of Virginia. Evans v. Sturgill, 430 F. Supp. 1209, 1977 U.S. Dist. LEXIS 16172 (W.D. Va. 1977) (decided under prior law).

Claim of plaintiffs, a wife and children, regarding invasion of privacy could not withstand summary judgment because Virginia law recognized only a limited cause of action for invasion of privacy as to use of a name or picture of a plaintiff without authorization, pursuant to § 8.01-40 , and Virginia courts had never recognized a common-law tort of invasion of privacy. Bellotte v. Edwards, 388 Fed. Appx. 334, 2010 U.S. App. LEXIS 15050 (4th Cir. 2010).

Except for the limited right conferred by this section. —

See Evans v. Sturgill, 430 F. Supp. 1209, 1977 U.S. Dist. LEXIS 16172 (W.D. Va. 1977) (decided under prior law).

Protective mantle extends to celebrities. —

Ordinary citizens are entitled to the protective mantle of this section, and persons in a celebrity status should receive no less coverage in this respect. Town & Country Properties, Inc. v. Riggins, 249 Va. 387 , 457 S.E.2d 356, 1995 Va. LEXIS 54 (1995).

Exception for matters that are newsworthy or of public interest. —

An exception exists under this section for items that are “newsworthy” or “matters of public interest,” which covers articles in newspapers and magazines, as well as pictures used to illustrate the articles, unless the picture bears no real relationship to the article or the article is an advertisement in disguise. Williams v. Newsweek, Inc., 63 F. Supp. 2d 734, 1999 U.S. Dist. LEXIS 13114 (E.D. Va.), aff'd, 202 F.3d 262, 1999 U.S. App. LEXIS 37553 (4th Cir. 1999).

Promotional announcement of newsworthy event. —

Though the evidence supported the jury’s finding that a television station defamed a doctor by accusing him of sexually assaulting his patients, the use of the doctor’s image in the station’s promotional announcements was not an unauthorized use under this section, as the right of privacy did not extend to reports of newsworthy events. WJLA-TV v. Levin, 264 Va. 140 , 564 S.E.2d 383, 2002 Va. LEXIS 87 (2002).

Exception for uses that are incidental. —

There is an exception to the statute for uses that are incidental to the purpose of the work, and according to this exception, a publisher will be liable for the publication of an unauthorized picture only if there is a direct and substantial connection between the appearance of the plaintiff’s name or likeness and the main purpose and subject of the work. Williams v. Newsweek, Inc., 63 F. Supp. 2d 734, 1999 U.S. Dist. LEXIS 13114 (E.D. Va.), aff'd, 202 F.3d 262, 1999 U.S. App. LEXIS 37553 (4th Cir. 1999).

Limitation period for actions under subsection A. —

Subsection A is aimed at preventing the appropriation, without consent, of an individual’s name or likeness while he is alive and for 20 years after he dies. It creates in an individual a species of property right in their name and likeness. Consequently, the limitation period contained in subsection B of § 8.01-243 should be applied. Lavery v. Automation Mgt. Consultants, Inc., 234 Va. 145 , 360 S.E.2d 336, 4 Va. Law Rep. 543, 1987 Va. LEXIS 255 (1987).

Subsection B is a cutoff statute, not a statute of limitation. —

The legislature intended subsection B to be a cutoff statute, and, as such, to operate as an outside time period in which true statutes of limitations would operate and beyond which no suit based on subsection A could be maintained. The General Assembly in enacting subsection B was not setting a time period within which suit must be brought, instead, it was providing a cutoff point after which suit could not be brought. Lavery v. Automation Mgt. Consultants, Inc., 234 Va. 145 , 360 S.E.2d 336, 4 Va. Law Rep. 543, 1987 Va. LEXIS 255 (1987).

Notwithstanding the characterizations of subsection B of this section made by the revisers’ notes under §§ 8.01-228 and 8.01-243 , subsection B of this section is not the statute of limitations applicable to a cause of action under subsection A. Lavery v. Automation Mgt. Consultants, Inc., 234 Va. 145 , 360 S.E.2d 336, 4 Va. Law Rep. 543, 1987 Va. LEXIS 255 (1987).

Use of New York decisions in construing section. —

This section is substantially similar to § 51 of the New York Civil Rights Law, and the U.S. Court of Appeals for the Fourth Circuit would look to the New York courts for guidance in construing the Virginia privacy statute. Falwell v. Flynt, 797 F.2d 1270, 1986 U.S. App. LEXIS 27744 (4th Cir. 1986), rev'd, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41, 1988 U.S. LEXIS 941 (1988).

The General Assembly has fixed the “knowingly used” standard for punitive damages in the type of action under this section. The Virginia Supreme Court shall not engage in judicial legislation by adding ingredients not specified in the statute. Town & Country Properties, Inc. v. Riggins, 249 Va. 387 , 457 S.E.2d 356, 1995 Va. LEXIS 54 (1995).

Proof of willful, wanton and/or malicious conduct is admissible, but unneeded for punitive damages for improper use of name. PTS Corp. v. Buckman, 263 Va. 613 , 561 S.E.2d 718, 2002 Va. LEXIS 58 (2002).

“Person.” —

Corporation could not have maintained an action under § 8.01-40 because the corporation was not a “person” under § 8.01-40 because the text of § 8.01-40 made clear that it applied only to natural persons, and the corporation was not a natural person. Silver Ring Splint Co. v. Digisplint, Inc., 567 F. Supp. 2d 847, 2008 U.S. Dist. LEXIS 48621 (W.D. Va. 2008).

An individual holds a property interest in his or her reputation, which represents the individual’s personal identity in the community and which is the thing of value in the individual’s name. Nossen v. Hoy, 750 F. Supp. 740, 1990 U.S. Dist. LEXIS 15508 (E.D. Va. 1990).

Use of candidate’s name or picture by political organization. —

This section or its common-law counterparts in other states, may not be construed to prohibit political organizations from using a candidate’s name or picture in a political campaign without his consent. Such an expansive interpretation of the law of tortious appropriation of name would trench on important freedoms secured by the First Amendment. Friends of Gramm v. Americans for Gramm, 587 F. Supp. 769, 1984 U.S. Dist. LEXIS 16588 (E.D. Va. 1984).

Interview in magazine not for trade or advertising purpose. —

Plaintiff minister’s allegations that an interview conducted and published by defendant journalists and magazine invaded his privacy by commercializing his personality failed to state a claim upon which relief could be granted, since Virginia recognizes no common-law action for invasion of privacy, and the interview did not, as a matter of law, qualify as being for a trade or advertising purpose under this section. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204, 1981 U.S. Dist. LEXIS 15822 (W.D. Va. 1981).

Release of internet screen name is not an unauthorized use of a name. —

Release of an Internet customer’s screen name to an unknown third-party by an Internet access service provider, where the third-party allegedly published intimate details about the customer on a listserve, did not violate § 8.01-40 because (1) the provider released a fictitious name, and not a picture, and (2) the release was not made for trade purposes. Motise v. Am. Online, Inc., No. 04-1494, 2005 U.S. Dist. LEXIS 36991 (E.D. Va. June 24, 2005).

“False light” invasion of privacy not actionable. —

Allegations that an interview conducted and published by defendant journalists and magazine invaded plaintiff minister’s privacy by placing the plaintiff in a “false light” in the public eye failed to state a claim upon which relief could be granted, since Virginia recognizes no common-law action for invasion of privacy, and the acts complained of did not fall within the narrow purview of this section. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204, 1981 U.S. Dist. LEXIS 15822 (W.D. Va. 1981).

Where advertising parody of plaintiff published in defendants’ magazine was not reasonably believable, and contained a disclaimer, publication of the parody did not constitute a use of plaintiff’s name and likeness for purposes of trade. Falwell v. Flynt, 797 F.2d 1270, 1986 U.S. App. LEXIS 27744 (4th Cir. 1986), rev'd, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41, 1988 U.S. LEXIS 941 (1988).

Plaintiff’s name was used for advertising purposes in a manner forbidden by this section where plaintiff’s ex-wife specifically directed the printer who set the type and distributed the real estate flyer “to make the words John Riggins bigger than the other words” and to make them “stand out.” Plaintiff’s name, therefore, was an integral part of the flyer and could not be deemed merely incidental to the flyer’s clear commercial message. Town & Country Properties, Inc. v. Riggins, 249 Va. 387 , 457 S.E.2d 356, 1995 Va. LEXIS 54 (1995).

Motion to dismiss a claim for statutory invasion of privacy was denied because the allegations of the plaintiff, a former Air Force Academy cadet, satisfied the requirements of § 8.01-40 and fell under none of its exceptions; the use of his name and “facts” about his conduct and legal troubles was actionable because he properly alleged that the information was used as an advertisement to solicit business for the defendants, a website publisher and its officers and employees. Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 2005 U.S. Dist. LEXIS 3474 (E.D. Va. 2005).

Misappropriation not found. —

Under subsection A of § 8.01-40 , a bodybuilder failed to establish misappropriation of his image by the CEO of a television network to advertise the CEO’s company’s commercial diet shake, as the image, in its entirety, was only distributed for use in the advertisement of the network’s weight loss challenge diet shake and not to promote the CEO’s commercial shake. Busch v. Christian Broad. Network, Inc., No. 2:05cv558, 2007 U.S. Dist. LEXIS 27171 (E.D. Va. Apr. 12, 2007), aff'd, 254 Fed. Appx. 957, 2007 U.S. App. LEXIS 26934 (4th Cir. 2007).

Potential client’s use of an attorney’s name in proposing the attorney to a court and opposing counsel as an expert witness concerning the reasonableness of attorney fees did not constitute unauthorized use of the name since such use did not constitute advertising. Devil's Advocate, LLC v. Zurich Am. Ins. Co., 666 Fed. Appx. 256, 2016 U.S. App. LEXIS 20952 (4th Cir. 2016).

Making sworn statements resulting in arrest warrant. —

Plaintiff’s actions in making sworn statements to the Commonwealth’s attorney, resulting in the issuance of a warrant for the arrest of the defendant for felonious theft of an airplane, did not fall within the narrow purview of the limited right of privacy created by this section. Evans v. Sturgill, 430 F. Supp. 1209, 1977 U.S. Dist. LEXIS 16172 (W.D. Va. 1977) (decided under prior law).

Statements about court-martial not public record. —

Despite defendant website publisher and individuals’ argument to the contrary, publication of statements about the court-martial of the plaintiff, a former Air Force Academy cadet, was not protected because the trial was a matter of public record; the issue was invasion of privacy, and the defendants’ reliance on a public record was misplaced. Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 2005 U.S. Dist. LEXIS 3474 (E.D. Va. 2005).

CIRCUIT COURT OPINIONS

Report on local car dealership found to be newsworthy item and of public interest. —

Demurrer was sustained as to plaintiffs’ claims that defendants misappropriated the owner’s, name, likeness, or image under subsection A of § 8.01-40 , as reporting on a local car dealership issue was a newsworthy item and of public interest, and this claim could, in no way, be deemed a use of name for advertising purposes or for the purpose of trade within the meaning of § 8.01-40 according to the assertions made. Graham v. Young Broad. of Richmond, Inc., 60 Va. Cir. 376, 2002 Va. Cir. LEXIS 408 (Richmond Nov. 15, 2002).

Name and likeness not used for advertising purposes. —

Sustaining of the newspaper publisher’s demurrer to the mother’s complaint for unauthorized use of her name and likeness and defamation was proper under subsection A of § 8.01-40 because the mother’s name and likeness were not used for advertising purposes and she could not, by innuendo, create defamatory implications where there were none. Compton v. Foster, 82 Va. Cir. 279, 2011 Va. Cir. LEXIS 173 (Russell County Feb. 23, 2011).

Monetary sanctions awarded in use of law firm name. —

Imposition of monetary sanctions against the counsel for a limited liability company (LLC) and the sole member of the LLC was just and appropriate because the action that was filed by the LLC against an attorney, for misappropriation of the LLC’s name and for legal malpractice, was frivolously filed. The LLC was created to mirror in name an entity belonging to the attorney, who was embroiled as a plaintiff in actions involving the sole member of the LLC, and for which the charter had lapsed out of status and been reinstated by the attorney. Leiser, Leiser & Hennessy, PLLC v. Leiser, 97 Va. Cir. 130, 2017 Va. Cir. LEXIS 314 (Fairfax County Nov. 2, 2017).

§ 8.01-40.1. Action for injury resulting from violation of Computer Crimes Act; limitations.

Any person whose property or person is injured by reason of a violation of the provisions of the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.) may sue and recover damages as provided in § 18.2-152.12 . An action shall be commenced before the earlier of (i) five years after the last act in the course of conduct constituting a violation of the Computer Crimes Act or (ii) two years after the plaintiff discovers or reasonably should have discovered the last act in the course of conduct constituting a violation of the Computer Crimes Act.

History. 1985, c. 92.

Law Review.

For article on Virginia’s response to computer abuses, see 19 U. Rich. L. Rev. 85 (1984).

§ 8.01-40.2. Unsolicited transmission of advertising materials by facsimile machine.

  1. Any person aggrieved by the intentional electronic or telephonic transmission to a facsimile device of unsolicited advertising material may bring an action against the person responsible for the transmission to enjoin further violations and to recover the greater of (i) actual damages sustained, together with costs and reasonable attorneys’ fees, or (ii) $500. Carriers or other companies which provide facsimile transmission services shall not be responsible for transmissions of unsolicited advertising materials by their customers. An action brought pursuant to this section shall be commenced within two years of the transmission.
  2. Any intentional transmission to a facsimile device of any unsolicited advertising material shall be a violation of the Virginia Consumer Protection Act (§ 59.1-196 et seq.).

History. 1990, c. 246; 2003, c. 800.

The 2003 amendments.

The 2003 amendment by c. 800 designated the existing provisions of the section as subsection A and added subsection B; and in the first sentence of subsection A, deleted “offering goods, real estate, or services for sale or lease” following “advertising material” in the introductory language and substituted “$500” for “$200” in clause (ii).

§ 8.01-40.3. Unauthorized dissemination, etc., of criminal history record information; civil action.

  1. Any person who disseminates, publishes, or maintains or causes to be disseminated, published, or maintained the criminal history record information as defined in § 9.1-101 of an individual pertaining to that individual’s charge or arrest for a criminal offense and solicits, requests, or accepts money or other thing of value for removing such criminal history record information shall be liable to the individual who is the subject of the information for actual damages or $500, whichever is greater, in addition to reasonable attorney fees and costs.
  2. Nothing in this section shall be construed to impose liability on:
    1. An interactive computer service, as defined in 47 U.S.C. § 230(f), for content provided by another person.
    2. Any speech protected by Article I, Section 12 of the Constitution of Virginia.
  3. As used in this section, “criminal history record information” means the same as that term is defined in § 9.1-101 .

History. 2015, cc. 414, 415.

§ 8.01-40.4. Civil action for unlawful creation of image of another or unlawful dissemination or sale of images of another.

  1. Any person injured by an individual who engaged in conduct that is prohibited under § 18.2-386.1 or 18.2-386.2 , whether or not the individual has been charged with or convicted of the alleged violation, may sue therefor and recover compensatory damages, punitive damages, and reasonable attorney fees and costs.
  2. No action shall be commenced under this section more than two years after the later of (i) the date of the last act in violation of § 18.2-386.1 or 18.2-386.2 , (ii) the date on which such person attained 18 years of age, or (iii) the date on which such person discovered or reasonably should have discovered the prohibited conduct.
  3. Nothing in this section shall be construed to impose liability on an interactive computer service, as defined in 47 U.S.C. § 230(f), for content provided by another person.

History. 2017, c. 656.

§ 8.01-41. Wrongful distraint, attachment.

If property be distrained for any rent not due, or attached for any rent not accruing, or taken under any attachment sued out without good cause, the owner of such property may, in an action against the party suing out the warrant of distress or attachment, recover damages for the wrongful distraint, seizure, or sale.

History. Code 1950, § 8-651; 1977, c. 617.

REVISERS’ NOTE

The former § 8-651 phrase “seizure, and also, if the property be sold, for the sale thereof” has been deleted and the words “distraint, seizure, or sale” substituted to conform with modern practice.

Cross references.

As to procedure when distress has been levied and tenant is unable to give forthcoming bond, see § 8.01-130.7 .

As to recovery for distress not wrongful, but irregular, see § 8.01-130.12 .

For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

Michie’s Jurisprudence.

For related discussion, see 2A M.J. Attachment and Garnishment, § 85.

CASE NOTES

Editor’s note.

The manifest intention of this section is to prevent the landlord from oppressing his tenant. The right to sue in damages for an illegal distress was recognized at common law and the enactment of the statute was in furtherance of the right so recognized. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 , 1925 Va. LEXIS 330 (1925).

Ignorance no excuse. —

The right to distrain or attach for rent has always been regarded by the courts as a most drastic one, and in order to restrain the landlord from a too free use of this power, he must exercise the same at his peril. The law presumes that he knows the amount of his tenant’s indebtedness and ignorance on his part will not relieve him for compensatory damages for a mistake committed by him. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 , 1925 Va. LEXIS 330 (1925).

As to reading of section in connection with § 8.01-551 and former § 8.01-552 , relating to the giving of attachment bonds, see Harris v. Lipson, 167 Va. 365 , 189 S.E. 349 , 1937 Va. LEXIS 284 (1937).

Action for trespass available. —

Where a distress is made for rent pretended to be due, when in truth there is none due, and the goods distrained are not sold, the remedy is by action at common law, and trespass may be maintained. But the party suing is not obliged to bring trespass, he may waive the trespass and bring case. Olinger v. M'Chesney, 34 Va. (7 Leigh) 660, 1836 Va. LEXIS 64 (1836).

Quashing of attachment does not imply lack of good cause. —

Under this section the fact that an attachment is quashed on the ground that it was sued out without sufficient cause does not necessarily imply that there was lack of good cause. Harris v. Lipson, 167 Va. 365 , 189 S.E. 349 , 1937 Va. LEXIS 284 (1937).

When landlord liable for acts of agent. —

A landlord who employs an agent to lease his property and receive the rents is not liable in damages for the act of the agent in unlawfully suing out a distress warrant against the tenant, unless he directed or approved the proceedings had under the distress warrant, or failed to repudiate such proceedings after full knowledge of them. Fishburne v. Engledove, 91 Va. 548 , 22 S.E. 354 , 1895 Va. LEXIS 51 (1895).

Measure of damages. —

In the absence of any charge of fraud, malice, oppression, or other special aggravation, the measure of the plaintiff’s damages is compensation for the injury suffered — such damages as are the natural and proximate result of the injury complained of. Fishburne v. Engledove, 91 Va. 548 , 22 S.E. 354 , 1895 Va. LEXIS 51 (1895).

In an action for illegal distress, instructions which ignore the right of plaintiff to recover nominal damages where an illegal levy has been made are erroneous under this section. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 , 1925 Va. LEXIS 330 (1925).

Damages due for excessive distraint. —

While a lien legally attaches to all property as might be on the premises when the lien is asserted or within 30 days prior to distraint, the landlord can distrain goods only to the extent necessary to satisfy the rent justly believed to be due, the tenant possessing an action for damages for excessive distraint. United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968).

“Fair” damages erroneous. —

Where a landlord distrains for an amount in excess of the rent due the tenant is entitled to recover at least nominal damages. But an instruction that in such a case the tenant is entitled to fair damages for wrong suffered is erroneous, as it is more than probable that “fair” means more than “compensation” to the average individual, and when the jury was told to find “fair damages” for the wrong suffered, instead of being told they could only compensate for the injury done, they conceived the idea, no doubt, that they had the right to punish instead of the power to compensate. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 , 1925 Va. LEXIS 330 (1925).

Effect of failing to plead and prove special damages. —

Where the notice of motion for illegally suing out a distress warrant did not allege and the proof failed to disclose any special damages suffered by plaintiff, a verdict for plaintiff in a substantial amount should be set aside as excessive. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 , 1925 Va. LEXIS 330 (1925).

Plaintiff has burden of proving substantial damages. —

In an action for illegal distress, the defendant was entitled to have the jury instructed that before the plaintiff could recover any except nominal damages, the burden was upon him to prove by a preponderance of the evidence that he had sustained substantial damages. To merely show that an illegal levy has been made is not sufficient to entitle the plaintiff to recover substantial damages. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 , 1925 Va. LEXIS 330 (1925).

Plaintiff has burden of proving exemplary damages. —

In order to recover exemplary damages in an action under this section the burden is upon the plaintiff to show not only that the act complained of is illegal, but that it was either malicious or oppressive, or that it was attended by especially aggravating circumstances. Evans v. Schuster, 178 Va. 61 , 16 S.E.2d 301, 1941 Va. LEXIS 144 (1941).

When variance in allegations fatal. —

In action for a wrongful distress, if the plaintiff allege that he held under a lease for five months, for $20.00 payable in repairs and labor, and at the trial it appear that the lease was for 12 months, for a money rent of $65.00, the variance will be fatal. Olinger v. M'Chesney, 34 Va. (7 Leigh) 660, 1836 Va. LEXIS 64 (1836).

Value of property question of fact. —

In an action for illegal distress the price obtained at a forced sale is not the sole criterion as to the value of the goods levied on. The value of the property at the time of the levy is a question of fact to be determined by the court or the jury trying the issue. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 , 1925 Va. LEXIS 330 (1925).

What question for court and what for jury. —

In an action under this section it was held that the question of exemplary damages should not have been submitted to the jury, since it was for the court to say whether the evidence tended to establish a proper case for their allowance, and for the jury to determine in such case whether they should be allowed. Evans v. Schuster, 178 Va. 61 , 16 S.E.2d 301, 1941 Va. LEXIS 144 (1941).

Judgment in another action not evidence. —

Judgment for the tenant in an action of unlawful detainer brought by the landlord is not evidence in a proceeding under this section that no rent was due at the time the distress warrant was sued out. Fishburne v. Engledove, 91 Va. 548 , 22 S.E. 354 , 1895 Va. LEXIS 51 (1895).

§ 8.01-42. Loss or injury to clothing in dyeing, dry cleaning, or laundering.

No person engaged in the business of dyeing, dry cleaning, or laundering wearing apparel, cloth or other articles, shall be liable, or in any action or suit against him be held liable, for the loss of, or injury to, any wearing apparel, cloth or other articles delivered to him to be dyed, dry cleaned, or laundered, in an amount greater than the purchase price minus depreciation of such wearing apparel, cloth or other articles, unless at the time of the delivery to him of any such wearing apparel, cloth or other articles, the value of the same, and when there is more than one piece or article the value of each piece or article, be agreed upon and evidenced by a writing stating such value, or separate values when there is more than one piece or article, signed by him; provided, however, that:

  1. Nothing in this section contained shall be construed as requiring of any such person more than the exercise of such degree of care as is now imposed by existing law;
  2. In no event shall any such person be held liable in any suit or action involving any such loss or injury for any sum greater than the damages suffered, and proved, by the plaintiff therein when such damages would not under the rules of law existing prior to June 18, 1920, exceed the purchase price minus depreciation of such wearing apparel, cloth, or other article;
  3. Nothing in this section shall be construed as interfering with or inhibiting, or impairing the obligation of, any written contract between any hotel, railroad company, steamboat company or other patron and any person engaged in the business of dyeing, dry cleaning, or laundering of wearing apparel, cloth or other article, in relation to such work;
  4. No liability shall rest upon or be borne by any hotel for any loss of or damage to wearing apparel, cloth or other article, the property of any guest of such hotel who shall have delivered, or caused the same to have been delivered, for dyeing, dry cleaning, or laundering to any person engaged in the business of dyeing, dry cleaning, or laundering.
  5. [Repealed.]

History. Code 1950, § 8-654; 1977, cc. 192, 617.

Editor’s note.

Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the Code Commission has incorporated in § 8.01-42 as set out above the changes made in former § 8-654, corresponding to this section, by amendment in Acts 1977, c. 192. The amendment made the section applicable to dry cleaning as well as dyeing and laundering, substituted “greater than the purchase price minus depreciation of” for “exceeding twenty times the charges made or to be made by him for the work done or contemplated to be done on any” near the middle of the introductory paragraph, substituted “the purchase price minus depreciation of such wearing apparel, cloth, or other article” for “twenty times the amount of such charges” at the end of subdivision 2, and deleted former subdivision 5, which required the price to be charged, and a reference to the section, to be printed on laundry slips and similar slips used in the business.

§ 8.01-42.1. Civil action for racial, religious, or ethnic harassment, violence or vandalism.

  1. An action for injunctive relief or civil damages, or both, shall lie for any person who is subjected to acts of (i) intimidation or harassment, (ii) violence directed against his person, or (iii) vandalism directed against his real or personal property, where such acts are motivated by racial, religious, gender, disability, gender identity, sexual orientation, or ethnic animosity.
  2. Any aggrieved party who initiates and prevails in an action authorized by this section shall be entitled to damages, including punitive damages, and in the discretion of the court to an award of the cost of the litigation and reasonable attorney fees in an amount to be fixed by the court.
  3. The provisions of this section shall not apply to any actions between an employee and his employer, or between or among employees of the same employer, for damages arising out of incidents occurring in the workplace or arising out of the employee-employer relationship.
  4. As used in this section:“Disability” means a physical or mental impairment that substantially limits one or more of a person’s major life activities.

History. 1988, c. 492; 2020, cc. 746, 1171.

Editor’s note.

Acts 2020, cc. 746 and 1171, cl. 2 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.”

Acts 2020, c. 746, cl. 3 provides: “That the provisions of this act shall not become effective unless an appropriation effectuating the purposes of this act is included in a general appropriation act passed in 2020 by the General Assembly that becomes law.”

The 2020 amendments.

The 2020 amendments by cc. 746 and 1171 are identical, and in subsection A, inserted “gender, disability, gender identity, sexual orientation”; in subsection B, substituted “attorney fees” for “attorneys’ fees”; added subsection D and made stylistic changes.

Law Review.

For Comment, “Spelling out LGBT: Enumerating Sexual Orientation in Virginia’s Anti-Bullying Law,” see 47 U. Rich. L. Rev. 1373 (2013).

Michie’s Jurisprudence.

For related discussion, see 3B M.J. Civil Rights, § 2.

CASE NOTES

Actions for religious discrimination in workplace not barred. —

Although subsection (c) of this section is perhaps inartfully crafted in that it does not make it clear on its face that it must be read in conjunction with not only the remaining provisions of the same statute but also all related state and federal proscriptions that allow a cause of action for religious discrimination in the workplace, it simply does not preclude such suit if the plaintiff can meet the burden of proof. Cary v. SSA, No. 3:01CV31, 2001 U.S. Dist. LEXIS 9813 (E.D. Va. July 11, 2001), aff'd, 26 Fed. Appx. 371, 2002 U.S. App. LEXIS 2400 (4th Cir. 2002).

Evidence sufficient to support finding of violation of this section. —

The jury’s finding that plaintiff was racially intimidated or harassed in violation of this section was supported by sufficient evidence where the plaintiff was the only black person in an otherwise totally white skating rink, and without prior warning, within an hour of the rink’s closing, the plaintiff was waved off the floor and was told “They want to see you in the back room.” Johnson v. Hugo's Skateway, 949 F.2d 1338, 1991 U.S. App. LEXIS 27674 (4th Cir. 1991).

Award of compensatory and punitive damages. —

Circuit court properly found — after a jury awarded compensatory and punitive damages to a worker stemming from the intentional statutory torts of racial harassment and stalking — that the evidence, consisting solely of mental anguish, emotional distress, and humiliation, was sufficient to support the jury’s award of compensatory damages to a worker because a company and its president conceded liability on a worker’s claims for racial harassment and stalking, both statutes expressly permitted compensatory and punitive damages, and neither required proof of physical injury. N. Va. Kitchen, Bath & Basement, Inc. v. Ellis, 299 Va. 615 , 856 S.E.2d 593, 2021 Va. LEXIS 37 (2021).

Awards of attorneys’ fees under this section are upheld on appeal unless under all the facts and circumstances the award is clearly wrong. Johnson v. Hugo's Skateway, 949 F.2d 1338, 1991 U.S. App. LEXIS 27674 (4th Cir. 1991).

CIRCUIT COURT OPINIONS

Claim not proper. —

Trial court concluded that the first employee, second employee, corporation, and holding company’s demurrer should be granted without prejudice to the business invitee to amend, as the business invitee did not plead sufficient factual allegations to support a cause of action under the hate crime statute, § 8.01-42.1 .Salmeron v. Wendy's Int'l, Inc., 70 Va. Cir. 247, 2006 Va. Cir. LEXIS 69 (Alexandria Feb. 24, 2006).

§ 8.01-42.2. Liability of guest for hotel damage.

Any registered guest in a hotel, motel, inn or other place offering to the public transitory lodging or sleeping accommodations for compensation shall be civilly liable to the innkeeper for all property damage to such accommodation or its furnishings which occurs during the period of such person’s occupancy when such damage results (i) from the negligence of the guest or of any person for whom he is legally responsible or (ii) from the failure of the guest to comply with reasonable rules and regulations of which he is given actual notice by the innkeeper.

History. 1989, c. 426.

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Hotels, Inns and Restaurants, § 6.

§ 8.01-42.3. Civil action for stalking.

  1. A victim has a civil cause of action against an individual who engaged in conduct that is prohibited under § 18.2-60.3 , whether or not the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim as a result of that conduct, in addition to the costs for bringing the action. If compensatory damages are awarded, a victim may also be awarded punitive damages.
  2. As used in this section:“Compensatory damages” includes damages for all of the defendant’s acts prohibited by § 18.2-60.3 .“Victim” means a person who, because of the conduct of the defendant that is prohibited under § 18.2-60.3 , was placed in reasonable fear of death, criminal sexual assault, or bodily injury to himself or to a minor child of whom the person is a parent or legal guardian.
  3. No action shall be commenced under this section more than two years after the most recent conduct prohibited under § 18.2-60.3 .

History. 2001, c. 444.

Cross references.

As to the statutory limitation on the recovery of punitive damages, see § 8.01-38.1 .

CASE NOTES

Relationship to other laws. —

State court judgment in a creditor’s favor on his civil cause of action for stalking in violation of Virginia law satisfied the willfulness element for nondischargability because the jury’s verdict established that it must have found that debtor intended to cause fear or should have known that his conduct would cause fear. However, the judgment did not satisfy the malice element because in finding debtor liable for stalking, the Virginia jury could have found that he should have known that he would cause harm but not that he acted deliberately and intentionally. Moreno v. Basl (In re Basl), No. 17-32341-KLP, No. 17-04495-KLP, 2018 Bankr. LEXIS 1164 (Bankr. E.D. Va. Apr. 18, 2018).

Award of compensatory and punitive damages. —

Circuit court properly found — after a jury awarded compensatory and punitive damages to a worker stemming from the intentional statutory torts of racial harassment and stalking — that the evidence, consisting solely of mental anguish, emotional distress, and humiliation, was sufficient to support the jury’s award of compensatory damages to a worker because a company and its president conceded liability on a worker’s claims for racial harassment and stalking, both statutes expressly permitted compensatory and punitive damages, and neither required proof of physical injury. N. Va. Kitchen, Bath & Basement, Inc. v. Ellis, 299 Va. 615 , 856 S.E.2d 593, 2021 Va. LEXIS 37 (2021).

§ 8.01-42.4. Civil action for trafficking in persons.

  1. Any person injured by reason of (i) a violation of clause (iii), (iv), or (v) of § 18.2-48 ; (ii) a violation of § 18.2-348 , 18.2-348.1 , 18.2-349 , 18.2-355 , 18.2-356 , 18.2-357 , 18.2-357 .1, or 18.2-368 ; or (iii) a felony violation of § 18.2-346.01 may sue therefor and recover compensatory damages, punitive damages, and reasonable attorney fees and costs.
  2. No action shall be commenced under this section more than seven years after the later of the date on which such person (i) was no longer subject to the conduct prohibited by clause (iii), (iv), or (v) of § 18.2-48 or § 18.2-348 , 18.2-348.1 , 18.2-349 , 18.2-355 , 18.2-356 , 18.2-357 , 18.2-357 .1, or 18.2-368 or under a felony violation of § 18.2-346.01 or (ii) attained 18 years of age.

History. 2016, cc. 557, 668; 2019, c. 458; 2021, Sp. Sess. I, c. 188.

The 2019 amendments.

The 2019 amendment by c. 458 inserted “18.2-348.1” in subsections A and B.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, substituted “§ 18.2-346 .01” for “§ 18.2-346 ” twice in the section.

§ 8.01-42.5. Civil action for female genital mutilation.

  1. Any person injured by an individual who engaged in conduct that is prohibited under § 18.2-51.7 , whether or not the individual has been charged with or convicted of the alleged violation, may sue therefor and recover compensatory damages, punitive damages, and reasonable attorney fees and costs.
  2. No action shall be commenced under this section more than 10 years after the later of (i) the date of the last act in violation of § 18.2-51.7 or (ii) the date on which such person attained 18 years of age.

History. 2017, c. 667.

§ 8.01-43. Action against parent for damage to public property by minor.

The Commonwealth, acting through the officers having charge of the public property involved, or the governing body of a county, city, town, or other political subdivision, or a school board may institute an action and recover from the parents or either of them of any minor living with such parents or either of them for damages suffered by reason of the willful or malicious destruction of, or damage to, public property by such minor. No more than $2,500 may be recovered from such parents or either of them as a result of any incident or occurrence on which such action is based.

History. Code 1950, § 8-654.1; 1960, c. 132; 1972, c. 825; 1977, c. 617; 1983, c. 330; 1987, c. 193; 1994, cc. 508, 552; 1996, c. 698.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Agency, § 111.

§ 8.01-44. Action against parent for damage to private property by minor.

The owner of any property may institute an action and recover from the parents, or either of them, of any minor living with such parents, or either of them, for damages suffered by reason of the willful or malicious destruction of, or damage to, such property by such minor. No more than $2,500 may be recovered from such parents, or either of them, as a result of any incident or occurrence on which such action is based. Any recovery from the parent or parents of such minor shall not preclude full recovery from such minor except to the amount of the recovery from such parent or parents. The provisions of this statute shall be in addition to, and not in lieu of, any other law imposing upon a parent liability for the acts of his minor child.

History. Code 1950, § 8-654.1:1; 1966, c. 532; 1972, c. 825; 1977, c. 617; 1984, c. 48; 1987, c. 193; 1994, cc. 508, 552; 1996, c. 698.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Agency, § 111.

CASE NOTES

This is a vicarious liability statute imposes liability without a determination of the parents’ independent negligence. The “additional” law mentioned in the last sentence refers to existing law based on vicarious liability, such as the liability of a parent based upon a principal-agent relationship. Bell v. Hudgins, 232 Va. 491 , 352 S.E.2d 332, 3 Va. Law Rep. 1679, 1987 Va. LEXIS 159 (1987).

In the absence of a principal-agent relationship, parents may not be liable for the malicious, intentional acts of their minor child based on the independent negligence of the parents in failing to control the child. Bell v. Hudgins, 232 Va. 491 , 352 S.E.2d 332, 3 Va. Law Rep. 1679, 1987 Va. LEXIS 159 (1987).

CIRCUIT COURT OPINIONS

Underage defendant. —

In an action brought under § 8.01-44 , defendant son did not need be a minor as of the date plaintiff filed this action against defendant son and his mother. Rather, defendant son needed to be and was a minor when he damaged plaintiff’s property. Hawes v. Cummings, 89 Va. Cir. 289, 2014 Va. Cir. LEXIS 130 (Chesapeake Nov. 10, 2014).

§ 8.01-44.1. Immunity from civil liability of members of certain committees, etc.

Every member of any committee, board, group, commission, or other entity established pursuant to federal or state law or regulation which functions to authorize, review, evaluate, or make recommendations on the nature, conduct, activities, or procedures involved in or related to programs or research protocols conducted under the supervision of members of the faculty or staff of any hospital or institution of higher education, including but not limited to the design or conduct of experiments involving human subjects, shall be immune from civil liability for any act, decision, omission, or utterance done or made in performance of such duties as a member of such committee, board, group, commission, or other entity, unless such act, decision, omission, or utterance is done or made in bad faith or with malicious intent or unless the member, when acting to authorize the nature, conduct, activities, or procedures involved in or related to a program or research protocol, knows or reasonably should know that the program or research protocol is being or will be conducted in violation of Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1. However, the immunity created herein shall not apply to those persons engaged in the actual conduct of the programs or research protocols.

History. 1980, c. 479; 1981, c. 40; 1992, c. 603.

Editor’s note.

At the direction of the Virginia Code Commission, “or institution of higher education” was substituted for “college, or university” in text of this section to conform to Acts 2016, c. 588.

§ 8.01-44.2. Action against physician for vaccine-related injury or death.

In any case where a person could file or could have filed a petition for compensation pursuant to Subtitle 2 of Title XXI of the Public Health Services Act of the United States (42 U.S.C. § 300aa-10 et seq.) for the vaccine-related injury or death associated with the administration of a vaccine in the Commonwealth by or under the supervision of a physician licensed to practice medicine in Virginia, no civil action shall lie against such physician, or any person administering such vaccine on behalf of such physician for injury or death resulting from an adverse reaction to such vaccine, except where such injury or death was caused by gross negligence of the physician, his agents or employees, in the administration of such vaccine.

History. 1987, c. 664.

Law Review.

For note, “A One Shot Deal: The National Childhood Vaccine Injury Act,” see 41 Wm. & Mary L. Rev. 309 (1999).

§ 8.01-44.3. Divulgence of communications by qualified interpreters and communications assistants.

If the content of any communication which is facilitated for compensation in the professional capacity of a qualified interpreter, as defined in § 51.5-113 , or in the professional capacity of any communications assistant employed by the statewide dual party relay service established under Article 5 (§ 56-484.4 et seq.) of Chapter 15 of Title 56, is divulged by such interpreter or assistant, any such party to the communication aggrieved by such divulgence may recover from such interpreter or assistant the greater of (i) actual damages sustained, together with costs and reasonable attorneys’ fees, or (ii) $100. No such recovery shall be permitted if the interpreter or assistant and the parties to the communication have agreed that the interpreter or assistant may divulge the content of the communication.

History. 1992, c. 614.

§ 8.01-44.4. Action for shoplifting and employee theft.

  1. A merchant may recover a civil judgment against any adult or emancipated minor who shoplifts from that merchant for two times the unpaid retail value of the merchandise, but in no event an amount less than $50. However, if the merchant recovers the merchandise in merchantable condition, he shall be entitled to liquidated damages of no more than $350.
  2. A merchant may recover a civil judgment against any person who commits employee theft for two times the unpaid retail value of the merchandise, but in no event an amount less than $50. However, if the merchant recovers the merchandise in merchantable condition, he shall be entitled to liquidated damages of no more than $350.
  3. The prevailing party in any action brought pursuant to this section shall be entitled to reasonable attorneys’ fees and costs not to exceed $150.
  4. A conviction of or a plea of guilty to a violation of any other statute is not a prerequisite to commencement of a civil action pursuant to this section or enforcement of a judgment. No action may be initiated under this section during the pendency of a criminal prosecution based on the same allegations of fact; however the initiation of any criminal action against the perpetrator for the alleged offense under § 18.2-95 , 18.2-96 , 18.2-102.1 , or 18.2-103 or any other criminal offense defined under subsection F does not preclude a merchant from initiating or maintaining an action under this section once the prosecution has been concluded. A merchant may not recover more than the retail value of the merchandise, or more than the unpaid retail value of the merchandise if the merchandise is not recovered in a merchantable condition, for the same loss if both criminal and civil actions are initiated. However, nothing herein shall preclude a merchant from recovering damages in excess of the retail value of the merchandise, or the unpaid retail value of the merchandise if the merchandise is not recovered in a merchantable condition, if a criminal action is initiated. Nothing herein shall preclude a merchant from nonsuiting the civil action brought pursuant to this section and proceeding criminally under § 18.2-95 , 18.2-96 , 18.2-102.1 , or 18.2-103 or any other criminal offense defined under subsection F.
  5. Prior to the commencement of any action under this section, a merchant may demand, in writing, that an individual who may be civilly liable under this section make appropriate payment to the merchant in consideration for the merchant’s agreement not to commence any legal action under this section.
  6. For purposes of this section:“Employee theft” means the removal of any merchandise or cash from the premises of the merchant’s establishment or the concealment of any merchandise or cash by a person employed by a merchant without the consent of the merchant and with the purpose or intent of appropriating the merchandise or cash to the employee’s own or another’s use without full payment.“Shoplift” means any one or more of the following acts committed by a person without the consent of the merchant and with the purpose or intent of appropriating merchandise to that person’s own or another’s use without payment, obtaining merchandise at less than its stated sales price, or otherwise depriving a merchant of all or any part of the value or use of merchandise: (i) removing any merchandise from the premises of the merchant’s establishment; (ii) concealing any merchandise; (iii) substituting, altering, removing, or disfiguring any label or price tag; (iv) transferring any merchandise from a container in which that merchandise is displayed or packaged to any other container; (v) disarming any alarm tag attached to any merchandise; or (vi) obtaining or attempting to obtain possession of any merchandise by charging that merchandise to another person without the authority of that person or by charging that merchandise to a fictitious person.

History. 1992, c. 721; 2005, cc. 142, 234; 2012, c. 526.

The number of this section was assigned by the Virginia Code Commission, the number in the 1992 act having been 8.01-44.3 .

The 2005 amendments.

The 2005 amendments by cc. 142 and 234 are identical, and in subsections A and B, substituted “unpaid retail value” for “actual cost” and deleted “to the merchant” following “merchandise”; inserted “or another’s” in both paragraphs of subsection F, and made minor stylistic changes.

The 2012 amendments.

The 2012 amendment by c. 526 rewrote subsection D.

Michie’s Jurisprudence.

For related discussion, see 12A M.J. Larceny, § 2.

§ 8.01-44.5. Punitive damages for persons injured by intoxicated drivers.

In any action for personal injury or death arising from the operation of a motor vehicle, engine or train, the finder of fact may, in its discretion, award punitive damages to the plaintiff if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant’s conduct was so willful or wanton as to show a conscious disregard for the rights of others.

A defendant’s conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) when the incident causing the injury or death occurred, the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath; (ii) at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle, engine or train would be impaired, or when he was operating a motor vehicle he knew or should have known that his ability to operate a motor vehicle was impaired; and (iii) the defendant’s intoxication was a proximate cause of the injury to or death of the plaintiff. For the purposes of clause (i), it shall be rebuttably presumed that the blood alcohol concentration at the time of the incident causing injury or death was at least as high as the test result as shown in a certificate issued pursuant to § 18.2-268.9 , in a certificate of analysis for a blood test administered pursuant to § 18.2-268.7 , provided that the test was administered in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 , or in a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant, provided that the test was administered in accordance with the provisions of §§ 18.2-268.5 , 18.2-268.6 , and 18.2-268.7 . In addition to any other forms of proof, a party may submit a copy of a certificate issued pursuant to § 18.2-268.9 , a certificate of analysis for a blood test administered pursuant to § 18.2-268.7, or a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant, which shall be prima facie evidence of the facts contained therein and compliance with the applicable provisions of §§ 18.2-268.1 through 18.2-268.12 . For the purposes of clause (ii), it shall be rebuttably presumed that the defendant who has consumed alcohol knew or should have known that his ability to operate a motor vehicle, engine, or train was or would be impaired by such consumption of alcohol.

However, when a defendant has unreasonably refused to submit to a test of his blood alcohol content as required by § 18.2-268.2 , a defendant’s conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (a) when the incident causing the injury or death occurred the defendant was intoxicated, which may be established by evidence concerning the conduct or condition of the defendant; (b) at the time the defendant began drinking alcohol, during the time he was drinking alcohol, or when he was operating a motor vehicle, he knew or should have known that his ability to operate a motor vehicle was impaired; and (c) the defendant’s intoxication was a proximate cause of the injury to the plaintiff or death of the plaintiff’s decedent. In addition to any other forms of proof, a party may submit a certified copy of a court’s determination of unreasonable refusal pursuant to § 18.2-268.3 , which shall be prima facie evidence that the defendant unreasonably refused to submit to the test. For the purposes of clause (b), it shall be rebuttably presumed that the defendant who has consumed alcohol knew or should have known that his ability to operate a motor vehicle, engine, or train was or would be impaired by such consumption of alcohol.

Evidence of similar conduct by the same defendant subsequent to the date of the personal injury or death arising from the operation of a motor vehicle, engine, or train shall be admissible at trial for consideration by the jury or other finder of fact for the limited purpose of determining what amount of punitive damages may be appropriate to deter the defendant and others from similar future action.

History. 1994, c. 570; 1998, c. 722; 1999, c. 324; 2002, c. 879; 2013, c. 636; 2015, c. 710; 2016, cc. 510, 624; 2017, cc. 623, 671.

The 1999 amendment inserted “or 0.15 grams or more per 210 liters of breath” in clause (i) of the second paragraph.

The 2002 amendments.

The 2002 amendment by c. 879, in the second paragraph, rewrote clause (ii), which formerly read: “at the time the defendant began, or during the time he was, drinking alcohol, he knew that he was going to operate a motor vehicle, engine or train; and”; and in the first sentence in the third paragraph, rewrote clause (ii), which formerly read: “at the time the defendant began, or during the time he was, drinking alcohol, he knew that he was going to operate a motor vehicle; and.”

The 2013 amendments.

The 2013 amendment by c. 636 added the last two sentences in the second paragraph; and in the last paragraph, substituted the (a) through (c) designations for (i) through (iii) designations in the first sentence, and inserted “In addition to any other forms of proof, a party may submit” and “which” in the last sentence.

The 2015 amendments.

The 2015 amendment by c. 710 substituted “punitive damages” for “exemplary damages” in the first sentence of the section.

The 2016 amendments.

The 2016 amendments by c. 510 substituted “in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 ” for “within three hours of the incident causing injury or death” and inserted “and compliance with the provisions of §§ 18.2-268.1 through 18.2-268.12 ” in the second paragraph.

The 2016 amendment by c. 624 added the last paragraph in the section.

The 2017 amendments.

The 2017 amendments by cc. 623 and 671, effective March 16, 2017, in the second paragraph, inserted “or in a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant, provided that the test was administered in accordance with the provisions of §§ 18.2-268.5 , 18.2-268.6 , and 18.2-268.7 ” in the second sentence, inserted “or a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant” in the third sentence, and added the last sentence; in the third paragraph, inserted “or when he was operating a motor vehicle,” in clause (b), and added the last sentence; and made stylistic changes.

Michie’s Jurisprudence.

For related discussion, see 2B M.J. Automobiles, §§ 112, 114, 118.

CASE NOTES

Plaintiff must prove each of elements. —

This statute requires that the plaintiff prove each of the statutory elements and, if the plaintiff fails to produce any evidence that at the time the defendant began drinking alcohol, or during the time he or she was drinking alcohol, the defendant knew he or she was going to operate a motor vehicle, a claim for statutory punitive damages may be correctly struck. Webb v. Rivers, 256 Va. 460 , 507 S.E.2d 360, 1998 Va. LEXIS 134 (1998) (decided prior to 2002 amendments, which rewrote clause (ii)).

No evidentiary presumption established. —

Section 8.01-44.5 did not establish an evidentiary presumption regarding the results of a chemical analysis conducted on a sample of a driver’s blood or breath taken after the driver’s arrest under § 18.2-266 for driving under the influence of alcohol, and the trial court erred by not allowing a party who was injured by a drunk driver to show that although the drunk driver’s blood alcohol concentration was below 0.15 percent three hours after the accident, it would have been above 0.15 percent at the time of the accident, and by dismissing the injured party’s claim under § 8.01-44.5 for punitive damages. Woods v. Mendez, 265 Va. 68 , 574 S.E.2d 263, 2003 Va. LEXIS 18 (2003).

Intoxication alone was insufficient to establish willful and wanton misconduct. —

Although mere intoxication would be insufficient to establish willful and wanton conduct, whether defendant acted willfully or wantonly, in conscious disregard for the safety of others, involved consideration of the entire conduct of the defendant; in the instant case, the jury could have properly concluded that defendant owner’s negligent entrustment was more than simple negligence, as the owner, a passenger in the owner’s own vehicle, told the intoxicated driver to speed up, while navigating roads that the owner knew were difficult to navigate. Allstate Ins. Co. v. Wade, 265 Va. 383 , 579 S.E.2d 180, 2003 Va. LEXIS 53 (2003).

Proof of “unreasonable refusal.” —

A plaintiff’s failure to incorporate in the factual allegations of his complaint the final sentence of this section relating to the effect of providing a certified copy of a court’s determination that the defendant unreasonably refused to submit to a breath test is not fatal to a claim for punitive damages in that compliance with this final sentence merely is but one way to prove an “unreasonable refusal,” not the only way. Ritinski v. McGarity, 112 F. Supp. 2d 509, 2000 U.S. Dist. LEXIS 13090 (E.D. Va. 2000).

Jury instructions. —

Trial court erred in giving a standard jury instruction regarding the imposition of punitive damages because, while the instruction contained all of the statutory elements, it did not properly state the law and improperly incorporated the appellate standard of review where it required the insureds prove that a driver’s conduct was “egregious,” an additional element not included in the statute. Cain v. Lee, 290 Va. 129 , 772 S.E.2d 894, 2015 Va. LEXIS 77 (2015).

CIRCUIT COURT OPINIONS

Constitutionality. —

Aside from the limitations imposed by the Eighth and Fourteenth Amendments prohibiting excessive fines, cruel and unusual punishments, and grossly excessive punishments of tortfeasors, there is nothing barring jury awards of punitive damages; hence, the General Assembly was free to enact § 8.01-44.5 .Edwards v. Whitlock, 57 Va. Cir. 337, 2002 Va. Cir. LEXIS 213 (Chesterfield County Feb. 4, 2002).

Proof of elements. —

Because the certificate of analysis, admitted as genuine under a request for admissions, conclusively established blood alcohol content of defendant at 0.14 grams per 210 liters of breath, no evidence would be taken to contradict this level. Since count one established a statutory claim for punitive damages and would be insufficient to plead a common law claim, on defendant’s motion the statutory claim for punitive damages would be dismissed. Hoggard v. Reitano, 54 Va. Cir. 513, 2001 Va. Cir. LEXIS 212 (Portsmouth 2001).

Injured party’s claim for statutory punitive damages against a motorist under § 8.01-44.5 was sufficient because the injured party alleged (1) at the time of the accident the motorist’s blood alcohol content was 0.15 or more, (2) at the time the motorist consumed alcohol he knew or should have known that his ability to drive would be impaired, and (3) the motorist’s intoxication was a proximate cause of the accident. Fernandez v. Cadow, 61 Va. Cir. 436, 2003 Va. Cir. LEXIS 46 (Spotsylvania County Apr. 8, 2003).

Punitive damages claim based on common law where it did not allege blood alcohol level of 0.15 or more. —

In a claim seeking damages for personal injuries from an auto accident, where the motion for judgment alleged that, in addition to the ordinary allegations of negligence, defendant’s behavior constituted willful and wanton conduct and conscious disregard for the rights and safety of others due to the fact defendant knew that driving after drinking alcoholic beverages was unsafe, knew from prior experience that alcohol would impair his ability to drive an automobile, and that he made the conscious and unconscionable decision to drive despite being unfit to do so, while the language largely tracked the elements of § 8.01-44.5 , it did not allege a blood alcohol level of 0.15 or more, so the punitive damages claim was based on common law. Carrolla v. Rogers, 61 Va. Cir. 447, 2003 Va. Cir. LEXIS 49 (Roanoke Apr. 16, 2003).

§ 8.01-44.6. Action for injury to cemetery property.

The owner or operator of a cemetery company may bring an action to recover damages sustained, together with costs and reasonable attorneys’ fees, against any person who willfully or maliciously destroys, mutilates, defaces, injures, or removes any tomb, monument, gravestone, or other structure placed within any cemetery, graveyard, or place of burial, or within any lot belonging to any memorial or monumental association, or any fence, railing, or other work for the protection or ornament of any tomb, monument, gravestone, or other structure aforesaid, or of any cemetery lot within any cemetery. The cemetery owner or operator may recover, as part of damages sustained, the cost of repair or replacement of damaged property, including any labor costs, regardless of whether the property damaged is owned by the cemetery or by another person.

History. 2004, c. 203.

§ 8.01-44.7. Action for tampering with metering device and diverting service.

Any provider of services that have been tampered with or diverted in violation of § 18.2-163 may seek both injunctive and equitable relief, and an award of damages, including reasonable attorney fees and costs. In addition to any other remedy provided by law, the party aggrieved may recover an award of actual damages or $500 whichever is greater for each action.

History. 2006, c. 350.

Law Review.

For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

Article 4. Defamation.

§ 8.01-45. Action for insulting words.

All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.

History. Code 1950, § 8-630; 1977, c. 617.

Cross references.

For criminal provision regarding abusive language, see § 18.2-416 . For criminal provision as to slander and libel, see § 18.2-417 .

For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

Law Review.

For note, “Qualified Privilege as a Defense to Defamation,” see 45 Va. L. Rev. 772 (1959).

For note on the merger of libel and slander, see 47 Va. L. Rev. 1116 (1961).

For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974).

For article on model abusive debt collection statute for Virginia, see 15 Wm. & Mary L. Rev. 567 (1974).

For note on the corporate libel plaintiff, see 38 Wash. & Lee L. Rev. 716 (1981).

For article on libel and slander in Virginia, see 17 U. Rich. L. Rev. 769 (1983).

For article, “Reputation, Compensation, and Proof,” see 25 Wm. & Mary L. Rev. 747 (1984).

For article, “Defamation and the First Amendment: The End of the Affair,” see 25 Wm. & Mary L. Rev. 779 (1984).

For article, “First Amendment Limitations on Recovery From the Press — An Extended Comment on ‘The Anderson Solution’,” see 25 Wm. & Mary L. Rev. 793 (1984).

For article, “The Plaintiff’s Burden in Defamation: Awareness and Falsity,” see 25 Wm. & Mary L. Rev. 825 (1984).

For article, “Hard Defamation Cases,” see 25 Wm. & Mary L. Rev. 891 (1984).

For article on defamation of public figures, see 25 Wm. & Mary L. Rev. 905 (1984).

For article, “Of Public Figures and Public Interest — The Libel Law Conundrum,” see 25 Wm. & Mary L. Rev. 937 (1984).

For article, “Public Figures Revisited,” see 25 Wm. & Mary L. Rev. 957 (1984).

For article on modern defamation law in Virginia, see 21 U. Rich. L. Rev. 3 (1986).

For an article, “Civil Practice and Procedure,” see 32 U. Rich. L. Rev. 1009 (1998).

Michie’s Jurisprudence.

For related discussion, see 5C M.J. Damages, § 72.

CASE NOTES

Analysis

  • E. Pleading and Practice.
    • I.Decisions Under Current Law.
    A.General Consideration.

    Constitutional limitations on “insulting words” claim. —

    Although application of this provision is no longer confined to its original purpose of preventing duels, it has been interpreted by Virginia courts to be virtually co-extensive with the common-law action for defamation. For this reason any constitutional limitations that apply to the plaintiffs’ defamation action must necessarily apply to their “insulting words” claim as well. Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1987 U.S. App. LEXIS 12607 (4th Cir. 1987).

    Opinions protected by First Amendment. —

    Where the defendants’ statement is capable of being proved or disproved, but when viewed in context it is clearly an opinion, it is therefore protected by the First Amendment. Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1987 U.S. App. LEXIS 12607 (4th Cir. 1987).

    Action for insulting words assimilated to common-law action for libel and slander. —

    Where the plaintiff’s motion for judgment was unclear as to whether the proceeding was under this section or involved common-law libel, no distinction was required to be made, since the trial of an action for insulting words is completely assimilated to the common-law action for libel or slander, and from the standpoint of the law of this state is an action for libel or slander. Mills v. Kingsport Times-News, 475 F. Supp. 1005, 1979 U.S. Dist. LEXIS 10118 (W.D. Va. 1979).

    The trial of an action for insulting words is completely assimilated to the common-law action for libel and slander, and from the standpoint of the Virginia law it is an action for libel and slander. Welch v. Kennedy Piggly Wiggly Stores, Inc., 63 Bankr. 888 (W.D. Va. 1986).

    In many cases defamation claims and claims brought under this section “must ineluctably ‘rise or fall together.’ ” Dwyer v. Smith, 867 F.2d 184, 1989 U.S. App. LEXIS 956 (4th Cir. 1989).

    Must be danger of violent reaction. —

    This section only penalizes words used in a verbal attack directed at a particular individual in a face to face confrontation that presents a clear and present danger of a violent physical reaction. Thompson v. Town of Front Royal, No. 5:98CV00083, 2000 U.S. Dist. LEXIS 3876 (W.D. Va. Mar. 16, 2000).

    This section plainly requires that the words used must not only be insults, but they must also “tend to violence and breach of the peace.” Allen & Rocks, Inc. v. Dowell, 252 Va. 439 , 477 S.E.2d 741, 1996 Va. LEXIS 107 (1996).

    In Virginia, a libel plaintiff must show that the alleged libel was published “of or concerning” him. He need not show that he was mentioned by name in the publication. Instead, the plaintiff satisfies the “of or concerning” test if he shows that the publication was intended to refer to him and would be so understood by persons reading it who knew him. In other words, the test is met if the plaintiff shows that the publication was “in its description or identification such as to lead those who knew or knew of the plaintiff to believe that the article was intended to refer to [him].” But if the publication on its face does not show that it applies to the plaintiff, the publication is not actionable, unless the allegations and supporting contemporaneous facts connect the libelous words to the plaintiff. If the rule were otherwise, any plaintiff could adopt and apply to himself any libelous matter and obtain a recovery. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    In order to establish prima facie evidence of publication, a plaintiff is not required to present testimony from a third party regarding what that person heard and understood, or to identify the person to whom the defamatory words were published. Instead, a plaintiff may prove publication of defamatory remarks by either direct or circumstantial evidence that the remarks were heard by a third party who understood these remarks as referring to the plaintiff in a defamatory sense. Food Lion, Inc. v. Melton, 250 Va. 144 , 458 S.E.2d 580, 1995 Va. LEXIS 93 (1995).

    As a matter of state law the negligence standard should be applicable to media and nonmedia defendants alike. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    The application of this negligence standard is expressly limited, however, to circumstances where the defamatory statement makes substantial danger to reputation apparent. The trial judge shall make such determination as a matter of law. If, on the other hand, no substantial danger to reputation is apparent from the statement in issue, New York Times malice must be established to recover compensatory damages. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    Plaintiff must prove falsity. —

    In an action brought by a private individual to recover actual, compensatory damages for a defamatory publication, the plaintiff may recover upon proof by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based. Under this standard, truth no longer is an affirmative defense to be established by the defendant. Instead, the plaintiff must prove falsity, because he is required to establish negligence with respect to such falsity. Such liability may be based upon negligence, whether or not the publication in question relates to a matter of public or general concern. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    The threshold determination to be made by trial judge on the question of whether there is substantial danger to reputation apparent from the content of a publication resembles the determination traditionally made by the court on the question whether a statement is libelous per se. A trial judge must decide, viewing the circumstances objectively, whether a reasonable and prudent editor should have anticipated that the words used contained an imputation necessarily harmful to reputation. The harmful potential of the words used here, i.e., that plaintiffs were accused of crimes, should have been apparent to the paper’s editor, if he had exercised ordinary care. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    When a qualified privilege is established and not defeated by a plaintiff’s evidence of common-law malice, the negligence standard is subsumed in the higher standard and it is of no consequence that the plaintiff might have met the lower standard of negligence. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    Failure of newspaper reporter to verify accusations made against plaintiff. —

    In a defamation action brought by a school teacher against newspaper reporter and his employer, where a number of supervisors, a fellow teacher, and students, including some classmates of the complaining students, testified as to plaintiff’s good qualities as a teacher and contradicted virtually all the negative statements made by the persons the reporter interviewed, the students who contradicted the negative testimony were all shown to have been readily available for interview in the Richmond area, while the school authorities would not furnish the reporter with the names or addresses of other students in plaintiff’s classes, the jury could have inferred from the evidence that the reporter could have obtained this information from the students he interviewed but negligently failed to do so, and, in fact, one student gave the reporter the names of some of the other students, but the reporter apparently did nothing with the information, the jury had ample evidence from which to conclude that a reasonably prudent news reporter writing the article could readily have contacted a number of other students to verify (or contradict) these accusations and should have done so. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32, 4 Va. Law Rep. 961, 1987 Va. LEXIS 260 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228, 1988 U.S. LEXIS 2315 (1988).

    Private plaintiff’s burden of proof in libel action against nonmedia defendant. —

    In a case involving a private plaintiff in a libel action against a nonmedia defendant, it is not necessary to show actual out-of-pocket damage in a nonlibel per se action and a showing of loss of reputation and standing in the community, embarrassment, humiliation, and mental suffering will be sufficient for the award of damages. Sateren v. Montgomery Ward & Co., 234 Va. 303 , 362 S.E.2d 324, 4 Va. Law Rep. 1115, 1987 Va. LEXIS 261 (1987).

    Adoption of a “journalistic malpractice test” would be inappropriate for a number of reasons: (a) While responsible newspapers serve many worthwhile objectives, profit is an important consideration. Startling, sensational stories tend to sell more newspapers than dull, factual stories. Thus, there is an inherent conflict of interest when a journalist is required to draw inferences from news items. It seems imprudent to permit media experts to set a standard under these circumstances. (b) The evidence does not establish that journalists are required to have special education for their profession, as engineers, doctors, lawyers, or certified public accountants must, nor have they acquired knowledge, training, and experience unique to certain trades focusing upon scientific matters, such as electricity, blasting and the like, which a jury could not understand without expert assistance. (c) The adoption of such a standard might mean that there could be no recovery unless a media expert testified that the conduct did not meet the standard of care in the journalistic community. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32, 4 Va. Law Rep. 961, 1987 Va. LEXIS 260 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228, 1988 U.S. LEXIS 2315 (1988).

    Profane language used during labor dispute held not to support liability under this section. See Crawford v. United Steel Workers, 230 Va. 217 , 335 S.E.2d 828, 1985 Va. LEXIS 272 (1985), cert. denied, 475 U.S. 1095, 106 S. Ct. 1490, 89 L. Ed. 2d 892, 1986 U.S. LEXIS 1017 (1986).

    Erroneous report of commitment for psychiatric evaluation. —

    An erroneous newspaper report that the plaintiff had been committed to a state hospital for psychiatric evaluation as the result of a preliminary hearing on a homicide charge was not libelous per se; however, a libel per quod action did lie in that the plaintiff’s allegations of humiliation, embarrassment, and permanent stigma, occasioned by inquiries about her commitment, would give rise to special damages if proven. Mills v. Kingsport Times-News, 475 F. Supp. 1005, 1979 U.S. Dist. LEXIS 10118 (W.D. Va. 1979).

    B.Damages.

    Precision hard to obtain in damages calculation. —

    It is difficult, if not impossible, to prove with mathematical precision the quantum of damages for injury to reputation, humiliation, and embarrassment which may flow from a defamation. Schnupp v. Smith, 249 Va. 353 , 457 S.E.2d 42, 1995 Va. LEXIS 53 (1995).

    On the issue of compensatory damages in libel cases when New York Times malice need not be proven, Virginia will continue to follow the established standard of review mandated by § 8.01-680 , that is, “the judgment of the trial court shall not be set aside unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it.” Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    Punitive damages. —

    An appellate court in Virginia, on the issue of punitive damages or where “New York Times malice” must be proven, must independently decide whether the evidence in the record on appeal is sufficient to support a finding of New York Times “actual malice” by clear and convincing proof. This does not mean that the reviewing court may disregard the determinations made on credibility of witnesses by the trier of fact or that the presumption of correctness that attaches to factual findings is to be discounted. The rule simply means that appellate judges in such a case must examine the facts pertinent to the punitive damage award and exercise independent judgment to “determine whether the record establishes actual malice with convincing clarity.” Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    Public school teacher not a public official. —

    Public school teacher was not in that class of public officials which can only recover compensatory damages for defamation by establishing the constitutional malice described in New York Times Co. v. Sullivan, 1964 U.S. LEXIS 1655, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686, 95 A.L.R.2d 1412 (1964); Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32, 4 Va. Law Rep. 961, 1987 Va. LEXIS 260 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228, 1988 U.S. LEXIS 2315 (1988).

    Appellate review of proof of malice. —

    To sustain an award of punitive damages, plaintiff, as a private person, is required to establish New York Times malice by clear and convincing proof. To decide if that requirement has been met, the Supreme Court conducts an “independent examination of the whole record,” resolving disputed factual issues and inferences favorably to the plaintiff. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32, 4 Va. Law Rep. 961, 1987 Va. LEXIS 260 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228, 1988 U.S. LEXIS 2315 (1988).

    C.Illustrations of Actionable Words.

    Defamatory words need not be sufficient within themselves to establish all the elements of the offense imputed. Such simplicity is not required. Schnupp v. Smith, 249 Va. 353 , 457 S.E.2d 42, 1995 Va. LEXIS 53 (1995).

    In determining whether or not language does impute a criminal offense the words must be construed in the plain and popular sense in which the rest of the world would naturally understand them. It is not necessary that they should make the charge in express terms. It is sufficient if they consist of a statement of matters which would naturally and presumably be understood by those who heard them as charging a crime. Schnupp v. Smith, 249 Va. 353 , 457 S.E.2d 42, 1995 Va. LEXIS 53 (1995).

    It is general rule that allegedly defamatory words are to be taken in their plain and natural meaning and to be understood by courts and juries as other people would understand them, and according to the sense in which they appear to have been used. In order to render words defamatory and actionable it is not necessary that the defamatory charge be in direct terms but it may be made indirectly, and it matters not how artful or disguised the modes in which the meaning is concealed if it is in fact defamatory. Accordingly, a defamatory charge may be made by inference, implication or insinuation. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    Statements on website actionable. —

    Motion to dismiss was denied because the plaintiff, a former Air Force Academy cadet, alleged that the defendants’ website statements were false, and where the statements did not represent a fair and accurate description of the cadet’s court martial proceeding, the defendants were not shielded from liability by reliance on a public record; the website statements constituted “actionable statements” for purposes of the cadet’s claims for defamation and for violation of the insulting words statute, claims that were virtually coextensive under Virginia law. Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 2005 U.S. Dist. LEXIS 3474 (E.D. Va. 2005).

    Words that impute the commission of a crime that is punishable by imprisonment in a state or federal institution are actionable per se. Schnupp v. Smith, 249 Va. 353 , 457 S.E.2d 42, 1995 Va. LEXIS 53 (1995).

    Content of a news item which states that an unmarried woman is pregnant creates a substantial danger to reputation and should warn a reasonably prudent editor of the item’s defamatory potential. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    Words “nigger” and “niggers” not fighting words. —

    The words “nigger” and “niggers,” allegedly spoken by the African-American plaintiff’s supervisor, without more specific allegations of how, when and to whom they were spoken, were not enough to rise to the level of fighting words under this section. The plaintiff did not allege facts in his complaint to prove that any supposed fighting words referred to him and the allegations in the complaint could not be construed as having been directed at a particular individual in a face to face confrontation and as presenting a clear and present danger of a violent physical reaction. Thompson v. Town of Front Royal, No. 5:98CV00083, 2000 U.S. Dist. LEXIS 3876 (W.D. Va. Mar. 16, 2000).

    Comments on work performance. —

    The defendants correctly contended that the language used by board chairman explaining former employee’s work performance was not such as to provoke violence or breach of the peace, as required by this section, and accordingly, that the trial court should not have submitted the insulting words issue to the jury. Allen & Rocks, Inc. v. Dowell, 252 Va. 439 , 477 S.E.2d 741, 1996 Va. LEXIS 107 (1996).

    D.Evidence.

    Expert testimony as to standards for investigative reporting properly excluded. —

    The trial court did not err in excluding evidence from an expert witness, a nationally known journalist, proffered on the standards for investigative reporting. A jury in this state is as competent as any expert to form an intelligent and accurate opinion as to whether a reporter should have conducted additional investigations. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32, 4 Va. Law Rep. 961, 1987 Va. LEXIS 260 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228, 1988 U.S. LEXIS 2315 (1988).

    Absolute privilege. —

    Statements an attorney made in an email he sent to an attorney who represented a Virginia corporation that made an offer to purchase assets that belonged to a corporate debtor were absolutely privileged because they were made in the context of three judicial proceedings that were ongoing: the debtor’s Chapter 11 bankruptcy case; sale proceedings under 11 U.S.C.S. § 363; and the Virginia corporation’s motion to set aside the court’s order approving the sale to another buyer; because the statements were privileged, the attorney and his law firm were entitled to an order dismissing the Virginia corporation’s claims alleging that the attorney and his law firm committed defamation and violated § 8.01-45 . Chesapeake Trust v. Chesapeake Bay Enter. (In re Potomac Supply Corp.), No. 12-30347-DOT, No. 13-03073-DOT, 2013 Bankr. LEXIS 5435 (Bankr. E.D. Va. Dec. 30, 2013).

    E.Pleading and Practice.

    Jurisdiction. —

    Defamation claim and an insulting words claim were remanded to state court because the mere mention of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.S. §§ 1601 and 1692-1692o, in a complaint which sought damages exclusively under state defamation and insulting words law was insufficient to vest the court with federal question jurisdiction under 28 U.S.C.S. § 1331, since a violation of the FDCPA was not a necessary element of, and might not have been relevant to, a Virginia defamation or insulting words claim. Martin v. Lagualt, 315 F. Supp. 2d 811, 2004 U.S. Dist. LEXIS 7428 (E.D. Va. 2004).

    Exact words must be alleged. —

    The exact words charged to have been used by the defendant must be alleged in order to state a cause of action for insulting words under this section. Thompson v. Town of Front Royal, No. 5:98CV00083, 2000 U.S. Dist. LEXIS 3876 (W.D. Va. Mar. 16, 2000).

    No duty to segregate defamatory and non-defamatory material in jury instructions. —

    There is no duty upon a trial court to segregate potentially defamatory from non-defamatory material in granting instructions to the jury. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32, 4 Va. Law Rep. 961, 1987 Va. LEXIS 260 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228, 1988 U.S. LEXIS 2315 (1988).

    It was jury’s function to determine which statements in newspaper article were defamatory statements of fact about the plaintiff, taking into consideration the entire background of the case and the context in which those statements were made. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32, 4 Va. Law Rep. 961, 1987 Va. LEXIS 260 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228, 1988 U.S. LEXIS 2315 (1988).

    Objective basis for belief. —

    Where a city resident had an objective basis for his belief that the city’s mayor had allowed 200 low-income housing units to be built in the city, his political ads in opposition to the mayor’s candidacy were not published with actual malice, and a jury verdict for the mayor in his defamation action was reversed. Jordan v. Kollman, 269 Va. 569 , 612 S.E.2d 203, 2005 Va. LEXIS 48 (2005).

    Sufficiency of complaint. —

    In a case in which a former employee alleged that her former employer violated the Virginia insulting words statute, § 8.01-45 , and the former employer moved to dismiss that claim pursuant to Fed. R. Civ. P. 12(b)(6), under the Iqbal test, the complaint alleged sufficient facts to establish a prima facie case, and, contrary to the former employer’s assertion, dismissal was not required on the basis that there was not a face-to-face confrontation. A reasonable fact finder could infer that the termination letter and the mass distribution of an erroneous newspaper article constituted statements that could lead to violence. Trail v. General Dynamics Armament & Tech. Prods., 697 F. Supp. 2d 654, 2010 U.S. Dist. LEXIS 28225 (W.D. Va. 2010).

    E.Pleading and Practice.

    Jurisdiction. —

    Defamation claim and an insulting words claim were remanded to state court because the mere mention of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.S. §§ 1601 and 1692-1692o, in a complaint which sought damages exclusively under state defamation and insulting words law was insufficient to vest the court with federal question jurisdiction under 28 U.S.C.S. § 1331, since a violation of the FDCPA was not a necessary element of, and might not have been relevant to, a Virginia defamation or insulting words claim. Martin v. Lagualt, 315 F. Supp. 2d 811, 2004 U.S. Dist. LEXIS 7428 (E.D. Va. 2004).

    Exact words must be alleged. —

    The exact words charged to have been used by the defendant must be alleged in order to state a cause of action for insulting words under this section. Thompson v. Town of Front Royal, No. 5:98CV00083, 2000 U.S. Dist. LEXIS 3876 (W.D. Va. Mar. 16, 2000).

    No duty to segregate defamatory and non-defamatory material in jury instructions. —

    There is no duty upon a trial court to segregate potentially defamatory from non-defamatory material in granting instructions to the jury. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32, 4 Va. Law Rep. 961, 1987 Va. LEXIS 260 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228, 1988 U.S. LEXIS 2315 (1988).

    It was jury’s function to determine which statements in newspaper article were defamatory statements of fact about the plaintiff, taking into consideration the entire background of the case and the context in which those statements were made. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32, 4 Va. Law Rep. 961, 1987 Va. LEXIS 260 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228, 1988 U.S. LEXIS 2315 (1988).

    Objective basis for belief. —

    Where a city resident had an objective basis for his belief that the city’s mayor had allowed 200 low-income housing units to be built in the city, his political ads in opposition to the mayor’s candidacy were not published with actual malice, and a jury verdict for the mayor in his defamation action was reversed. Jordan v. Kollman, 269 Va. 569 , 612 S.E.2d 203, 2005 Va. LEXIS 48 (2005).

    Sufficiency of complaint. —

    In a case in which a former employee alleged that her former employer violated the Virginia insulting words statute, § 8.01-45 , and the former employer moved to dismiss that claim pursuant to Fed. R. Civ. P. 12(b)(6), under the Iqbal test, the complaint alleged sufficient facts to establish a prima facie case, and, contrary to the former employer’s assertion, dismissal was not required on the basis that there was not a face-to-face confrontation. A reasonable fact finder could infer that the termination letter and the mass distribution of an erroneous newspaper article constituted statements that could lead to violence. Trail v. General Dynamics Armament & Tech. Prods., 697 F. Supp. 2d 654, 2010 U.S. Dist. LEXIS 28225 (W.D. Va. 2010).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Original purpose now of no importance. —

    Since the amendment of the original statute in 1849, in dealing with the statute against insulting words, no weight or importance has been attached to the purpose for which it was originally enacted. The original object of the statute, in the matter of preventing dueling, is no longer entitled to consideration in considering the statute. W.T. Grant Co. v. Owens, 149 Va. 906 , 141 S.E. 860 , 1928 Va. LEXIS 400 (1928).

    The purpose now is to prevent breaches of peace. —

    The purpose of this section was to extend the common law so as to give a right of action for insulting words, even though containing no imputation which was actionable at common law. The design of the statute is to prevent breaches of the peace, to discourage offensive and excessive freedom in the use of that unruly member, the tongue, to inflict punishment therefor, and by subjecting those who are so hasty of temper and inconsiderate of the feelings of others as to insult them to such actual and punitive damages as may be awarded by a jury. Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 , 1922 Va. LEXIS 201 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 1191, 1924 U.S. LEXIS 3159 (1924) (see also Weatherford v. Birchett, 158 Va. 741 , 164 S.E. 535 , 1932 Va. LEXIS 294 (1932).

    The gravamen of an action under this section is the insult to the feelings of the offended party, not the intention of the party using the words. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304, 1946 Va. LEXIS 224 (1946).

    In an action for insulting words the insult is the basis of the action and where such insults are given, the jury are to pass upon them regardless of whether the words spoken are true or false. Brooks v. Calloway, 39 Va. (12 Leigh) 466, 1841 Va. LEXIS 56 (1841).

    Action for libel and slander. —

    An action for insulting words under this section has been treated since the amendment of the original statute in 1849 entirely as an action for libel or slander, for words actionable per se, with two exceptions: “No demurrer shall preclude a jury from passing thereon,” (eliminated by 1940 amendment) and no publication of the words is necessary. In all other respects an action under the statute is placed on all fours with an action for defamation at common law. In fact, from the standpoint of the Virginia law, the action for insulting words is an action for libel or slander. W.T. Grant Co. v. Owens, 149 Va. 906 , 141 S.E. 860 , 1928 Va. LEXIS 400 (1928).

    All actions for libel and insulting words under this section are to be treated as slander, even though the language used is defamatory on its face, and the common-law rules of slander are to be applied. Shupe v. Rose's Stores, Inc., 213 Va. 374 , 192 S.E.2d 766, 1972 Va. LEXIS 370 (1972).

    An action under the insulting words statute is either an action for libel or slander and in an action for libel or slander the common-law rules of slander are to be applied. Shupe v. Rose's Stores, Inc., 213 Va. 374 , 192 S.E.2d 766, 1972 Va. LEXIS 370 (1972).

    As at common law. —

    The 1940 amendment to this section, eliminating the words “and no demurrer shall preclude a jury from passing thereon,” gave the court the same power and control over actions brought under this section that it exercised over common-law actions for libel and slander. Darnell v. Davis, 190 Va. 701 , 58 S.E.2d 68, 1950 Va. LEXIS 161 (1950).

    Statute does not affect common-law remedy. —

    The legislature did not intend by passing the statute of insulting words to interfere with the common-law action for defamation and a party aggrieved may still proceed at common law as if the statute had never been passed. Brooks v. Calloway, 39 Va. (12 Leigh) 466, 1841 Va. LEXIS 56 (1841); Moseley v. Moss, 47 Va. (6 Gratt.) 534, 1850 Va. LEXIS 5 (1850); Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80, 1860 Va. LEXIS 5 (1860).

    Publication is difference. —

    An action for insulting words under this section is treated precisely as an action for slander or libel, for words actionable per se, with one exception, namely, no publication is necessary. The trial of an action for insulting words is completely assimilated to the common-law action for libel or slander, and from the standpoint of the Virginia law it is an action for libel or slander. Carwile v. Richmond Newspapers, Inc., 196 Va. 1 , 82 S.E.2d 588, 1954 Va. LEXIS 193 (1954); O'Neil v. Edmonds, 157 F. Supp. 649, 1958 U.S. Dist. LEXIS 2848 (D. Va. 1958); Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614, 1967 U.S. Dist. LEXIS 8480 (W.D. Va. 1967).

    B.Words Actionable Under Statute.
    1.In General.

    Words actionable at common law may be actionable under statute. —

    All common-law defamations are insults, and many of them something more. Actions for insulting words, spoken or written, may be brought under this section, though the words are actionable at common law. Payne v. Tancil, 98 Va. 262 , 35 S.E. 725 , 1900 Va. LEXIS 36 (1900).

    This statute applies to words written as well as to words spoken. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 , 1887 Va. LEXIS 44 (1887).

    At common law defamatory words which are actionable per se are: (1) Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished; (2) those which impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society; (3) those which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment; (4) those which prejudice such person in his or her profession or trade. All other defamatory words which, though not in themselves actionable, occasion a person special damages are actionable. Shupe v. Rose's Stores, Inc., 213 Va. 374 , 192 S.E.2d 766, 1972 Va. LEXIS 370 (1972).

    Meaning of language cannot be extended beyond its ordinary and common acceptation. —

    While ordinarily the gravamen of the action is the insult to the feelings of the offended party, and not the intention of the party using the words, the nature of the words used must from their usual construction and common acceptation be construed as insults and tend to violence and breach of the peace. The meaning of the alleged defamatory language cannot, by innuendo, be extended beyond its ordinary and common acceptation. O'Neil v. Edmonds, 157 F. Supp. 649, 1958 U.S. Dist. LEXIS 2848 (D. Va. 1958).

    In determining whether or not the language imputes a criminal offense, the words must be construed in the plain and popular sense in which the rest of the world would naturally understand them. It is not necessary that they should make the charge in express terms. It is sufficient if they consist of a statement of matters which would naturally and presumably be understood by those who heard them as charging a crime. Zayre of Va., Inc. v. Gowdy, 207 Va. 47 , 147 S.E.2d 710, 1966 Va. LEXIS 185 (1966).

    Manner and occasion of speaking or writing words. —

    Insults by words spoken to or concerning another, depend so much upon the manner, the occasion, the allusions, and peculiar circumstances, as to defy all rules of technical precision and import, and must of necessity be regarded as questions of fact, to be submitted to the experience, observation and the common sense of a jury. Moseley v. Moss, 47 Va. (6 Gratt.) 534, 1850 Va. LEXIS 5 (1850); Corr v. Lewis, 94 Va. 24 , 26 S.E. 385 , 1896 Va. LEXIS 140 (1896).

    Whether the words are or are not insulting depends on the place, the manner and circumstances in which they are uttered. The literal meaning of the words may import praise; but, if spoken ironically and with intent to wound, they may amount to the keenest insult. It is equally true that the literal meaning of words may import insult, and yet the manner of their utterance, and the circumstances under which they are said, would satisfy anyone that no insult was intended. Brooks v. Calloway, 39 Va. (12 Leigh) 466, 1841 Va. LEXIS 56 (1841); Corr v. Lewis, 94 Va. 24 , 26 S.E. 385 , 1896 Va. LEXIS 140 (1896).

    In order to determine whether words are insulting, all the surrounding facts and circumstances must be taken into consideration, and the whole case must be looked at in the light of its own particular facts. Zayre of Va., Inc. v. Gowdy, 207 Va. 47 , 147 S.E.2d 710, 1966 Va. LEXIS 185 (1966).

    2.Illustrations.

    Improper letter to married woman. —

    A letter written by a man to a married woman falsely asserting that the writer has received a letter from her and that he will meet her at the designated place is within the statute. Rolland v. Batchelder, 84 Va. 664 , 5 S.E. 695 , 1888 Va. LEXIS 126 (1888).

    An accusation of robbery is actionable under the statute. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 , 1925 Va. LEXIS 316 (1925).

    The publication of the false report of a person’s death is not actionable when unaccompanied by special circumstances. O'Neil v. Edmonds, 157 F. Supp. 649, 1958 U.S. Dist. LEXIS 2848 (D. Va. 1958).

    A letter to plaintiff’s employer, stating that plaintiff was in default in repayment of a loan and refused to answer correspondence or respond to personal calls, was not libelous per se, where the letter did not suggest dishonesty, insolvency or bankruptcy, and plaintiff was not a merchant or trader or engaged in a vocation where credit was necessary, and since no special damages were alleged or proved, the letter was not actionable. Weaver v. Beneficial Fin. Co., 200 Va. 572 , 106 S.E.2d 620, 1959 Va. LEXIS 139 (1959).

    Statement that police chief failed to account for fines not actionable. —

    To publish of the chief of police, who is chargeable with the collection from his subordinates of fines imposed by the police justice, that he has within the past twelve months collected certain fines of a certain officer, which fines do not appear by the records of the police court to have been reported, is not actionable under this section in the absence of an averment in the declaration that the words used from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace. Moss v. Harwood, 102 Va. 386 , 46 S.E. 385 , 1904 Va. LEXIS 82 (1904).

    C.Publication.

    Publication is not necessary. —

    Under this section against insulting words, publication is not necessary in order to entitle a plaintiff to recover for insulting words. Davis v. Heflin, 130 Va. 169 , 107 S.E. 673 , 1921 Va. LEXIS 148 (1921); Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 , 1922 Va. LEXIS 201 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 1191, 1924 U.S. LEXIS 3159 (1924).

    Words only have to be conveyed to person libelled. —

    It is a sufficient publication under this section to send a writing containing the insulting words to the person libelled. Rolland v. Batchelder, 84 Va. 664 , 5 S.E. 695 , 1888 Va. LEXIS 126 (1888).

    The mailing of a slanderous letter to a third party amounts to a publication, provided the letter reaches its destination and is read by the addressee, or any third party. Davis v. Heflin, 130 Va. 169 , 107 S.E. 673 , 1921 Va. LEXIS 148 (1921).

    Place of publication and circulation is where cause of action arises. —

    It is not the place where the libelous article is printed, but the place where it is published and circulated, that makes the words actionable under this section. Haskell v. Bailey, 63 F. 873, 1894 U.S. App. LEXIS 2450 (4th Cir. 1894).

    Defendant, in Virginia, wrote a letter to a third party in Washington, D.C., containing defamatory statements about the plaintiff. Plaintiff questioned defendant in Virginia in regard to the letter and defendant substantially repeated and assumed responsibility for the contents of the letter when he admitted its authorship and said to defendant that the letter spoke for itself. The defendant was liable in Virginia under this statute as he reiterated the insulting words to plaintiff in Virginia. Davis v. Heflin, 130 Va. 169 , 107 S.E. 673 , 1921 Va. LEXIS 148 (1921).

    D.Parties Liable.

    A corporation, as any other master, is liable in damages under this section for insulting words uttered by its agent while engaged in the ordinary course of his employment, and in connection therewith. W.T. Grant Co. v. Owens, 149 Va. 906 , 141 S.E. 860 , 1928 Va. LEXIS 400 (1928); Jordan v. Melville Shoe Corp., 150 Va. 101 , 142 S.E. 387 , 1928 Va. LEXIS 298 (1928).

    Director General of Railroads not liable. —

    Assuming, for the purposes of this case, that a principal is liable for compensatory damages under this section for insulting words uttered by his agent in the course of his employment, when such words are neither authorized nor ratified by the principal, there is a difference in this respect between the Director General of Railroads and other employers, and an action for compensatory damages in such case cannot be maintained against the Director General. Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 , 1922 Va. LEXIS 201 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 1191, 1924 U.S. LEXIS 3159 (1924).

    Judges are not liable to civil action for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. Fletcher v. Bryan, 175 F.2d 716, 1949 U.S. App. LEXIS 2416 (4th Cir. 1949).

    E.Malice.

    Constitutional malice standard required. —

    The trial court committed reversible error when in a punitive damage instruction to the jury it incorporated the common-law definition of malice rather than the constitutional malice standard. Newspaper Publishing Corp. v. Burke, 216 Va. 800 , 224 S.E.2d 132, 1976 Va. LEXIS 207 (1976).

    Malicious libel enjoys no constitutional protection in any context. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737, 1972 Va. LEXIS 371 (1972), rev'd, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745, 1974 U.S. LEXIS 87 (1974).

    Legal malice is presumed from the utterance of insulting words. It may be found in the negligence or recklessness of the defamer’s acts. An injury to a defamed person may be as grievous whether or not his defamer had an honest belief in the truth of his words. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304, 1946 Va. LEXIS 224 (1946).

    In an action under the statute the law infers malice from the publication of matter which is insulting or defamatory. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 , 1887 Va. LEXIS 44 (1887).

    The motive which actuated the person using the words is not material, except upon the questions of malice and the measure of damages. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304, 1946 Va. LEXIS 224 (1946).

    Actual malice is necessary in order to abuse a qualified privilege. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614, 1967 U.S. Dist. LEXIS 8480 (W.D. Va. 1967).

    Actual malice is indispensable for punitive damages. —

    Under this section, malice, either express or implied, is essential to a recovery for slander or for insulting words, but actual or express malice need not be proved except as a basis for punitive damages. For the latter purpose it is indispensable. Windsor v. Carlton, 136 Va. 652 , 118 S.E. 222 , 1923 Va. LEXIS 112 (1923).

    Statements and conduct of a defendant after the utterance of a slander are admissible to show malice. Kroger Grocery & Baking Co. v. Rosenbaum, 171 Va. 158 , 198 S.E. 461 , 1938 Va. LEXIS 269 (1938).

    Burden of proof. —

    Ordinarily, the law implies malice from the use of words defamatory or insulting. But the presumption is the other way where the occasion of the publication is privileged, and the onus is then upon the plaintiff to prove malice in fact. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614, 1967 U.S. Dist. LEXIS 8480 (W.D. Va. 1967).

    F.Privileged Communications.

    Privileged communication defined. —

    A privileged communication is one made in good faith upon any subject matter in which the party communicating has an interest or in reference to which he has, or honestly believes he has, a duty, to a person having a corresponding interest or duty, and which contains matter which, without the occasion upon which it is made, would be defamatory and actionable. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614, 1967 U.S. Dist. LEXIS 8480 (W.D. Va. 1967).

    Where the defendant acts in performance of a duty, legal or social, or in defense of his own interest, the occasion is privileged. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614, 1967 U.S. Dist. LEXIS 8480 (W.D. Va. 1967).

    Privilege is a bar to the action unless the plaintiff proves by a preponderance of the evidence an abuse of the privilege. Guide Publishing Co. v. Futrell, 175 Va. 77 , 7 S.E.2d 133, 1940 Va. LEXIS 149 (1940); Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623, 1944 Va. LEXIS 169 (1944).

    Where public interest in free expression and communication of ideas is sufficient to outweigh the interest of the State in protecting the individual plaintiff from damage to his reputation and social relationships, the law does not allow recovery of damages, compensatory or punitive, occasioned by defamatory speech or publication, unless there has been an abuse of the privilege by showing that the defamatory language, either written or spoken, was made with actual malice. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737, 1972 Va. LEXIS 371 (1972), rev'd, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745, 1974 U.S. LEXIS 87 (1974).

    Must be made in good faith to be privileged. —

    Where the occasion of the publication declared on was privileged, the jury should have been instructed to find whether it was used in good faith by the defendant. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 , 1887 Va. LEXIS 44 (1887).

    Circumstances of publication may confer privilege. —

    A libelous statement, otherwise actionable, may not be so for the reason that the circumstances under which it was published confer upon the publisher a privilege to publish it. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737, 1972 Va. LEXIS 371 (1972), rev'd, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745, 1974 U.S. LEXIS 87 (1974).

    Privileged when communication to person having a corresponding interest or duty. —

    A communication, made in good faith on a subject matter in which the person communicating has an interest, or owes a duty, legal, moral or social, is qualifiedly privileged if made to a person having a corresponding interest or duty. Taylor v. Grace, 166 Va. 138 , 184 S.E. 211 , 1936 Va. LEXIS 174 (1936).

    Qualified privilege. —

    The rule is well settled that when the communication upon which the action is based is one of qualified privilege, the question is not whether the charge was true or false, but only whether the privilege was abused or the language employed was uttered or published with malice, and unless there is evidence from which a jury may fairly conclude there was malice, there can be no recovery. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614, 1967 U.S. Dist. LEXIS 8480 (W.D. Va. 1967).

    When the words complained of are uttered upon an occasion of qualified privilege, then in order to recover, it must appear from the evidence that the language used was disproportioned in strength and violence to the occasion, or went beyond the exigency of the occasion, or that the occasion was abused to gratify the ill will of the defendant; in other words, that the defendant was acting from actual malice. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614, 1967 U.S. Dist. LEXIS 8480 (W.D. Va. 1967).

    One insult cannot be set off against another. Yet if a man is attacked by another in a newspaper, he may reply. If his reply is not unnecessarily defamatory of his assailant, and is honestly made in self-defense, it will be privileged. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 , 1887 Va. LEXIS 44 (1887); Haycox v. Dunn, 200 Va. 212 , 104 S.E.2d 800, 1958 Va. LEXIS 178 (1958).

    Criticism of public official. —

    When a person is in a public capacity he may be criticized by the newspapers in the public interest; and that rebuts the presumption of malice in law which the court might otherwise make, and leaves malice in fact to be proved, and malice in fact to be found, either in the special language of the article or in circumstances proved which point to some motive of enmity to the particular individual. Story v. Norfolk-Portsmouth Newspapers, Inc., 202 Va. 588 , 118 S.E.2d 668, 1961 Va. LEXIS 149 (1961).

    Language uttered in judicial proceeding is privileged. —

    See Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623, 1944 Va. LEXIS 169 (1944).

    But the privilege of a party or counsel in judicial proceedings is limited. —

    A party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions, either against a party, witness or third person, which have no relation to the cause or subject matter of the inquiry. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 , 1925 Va. LEXIS 316 (1925).

    When order dismissing employee is privileged. —

    A statement by a corporation in an order dismissing an employee that he was dismissed because of untrue statement made by him concerning reflection cast by one officer of the company, where there was no evidence of malice on the part of the company or its agents, was held to be a privileged communication and was not actionable. Brown v. Norfolk & W. Ry., 100 Va. 619 , 42 S.E. 664 , 1902 Va. LEXIS 67 (1902).

    A State Police officer is not afforded an absolute privilege for words spoken in a departmental hearing before the superintendent of State Police. Elder v. Holland, 208 Va. 15 , 155 S.E.2d 369, 1967 Va. LEXIS 178 (1967) (commented on in 3 U. Rich. L. Rev. 202 (1968)).

    A State Police officer is not immune from liability for defamatory words spoken while performing his duties. Elder v. Holland, 208 Va. 15 , 155 S.E.2d 369, 1967 Va. LEXIS 178 (1967) (commented on in 3 U. Rich. L. Rev. 202 (1968)).

    Illustration of conditional privilege. —

    For illustration of occasion held to be one of conditional privilege, see Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416, 1952 Va. LEXIS 163 (1952).

    G.Justification.

    In Virginia both the truth and privilege are complete defenses in bar of any action for defamation, whether it be for common-law slander or libel, or for insulting words. The same rules of law with reference to the pleading and proof of these defenses apply in an action under this section as in an action for common-law slander or libel since the enactment of § 8.01-46 . Rosenberg v. Mason, 157 Va. 215 , 160 S.E. 190 , 1931 Va. LEXIS 314 (1931), overruled in part, Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171 (1985) (see Guide Publishing Co. v. Futrell, 175 Va. 77 , 7 S.E.2d 133 (1940); Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623 (1944)).

    H.Damages.

    Punitive damages may be awarded without actual or compensatory damages if a plaintiff shows per se defamation by the media and meets by clear and convincing evidence the standard of actual malice. Newspaper Publishing Corp. v. Burke, 216 Va. 800 , 224 S.E.2d 132, 1976 Va. LEXIS 207 (1976).

    In actions under this section, damages are presumed from proof of the utterance of insulting words made actionable by the statute, and in order to recover it is not necessary to prove actual or pecuniary loss. Weatherford v. Birchett, 158 Va. 741 , 164 S.E. 535 , 1932 Va. LEXIS 294 (1932).

    The law presumes that damages result from the utterance of insulting words, made actionable by the statute, just as it does where the words uttered are actionable per se. It is not necessary in either case in order to recover, to prove actual or pecuniary loss. Boyd v. Boyd, 116 Va. 326 , 82 S.E. 110 , 1914 Va. LEXIS 36 (1914); W.T. Grant Co. v. Owens, 149 Va. 906 , 141 S.E. 860 , 1928 Va. LEXIS 400 (1928) (see also Jordan v. Melville Shoe Corp., 150 Va. 101 , 142 S.E. 387 (1928)).

    No rule for measure of damages. —

    In an action, under this section, there is no rule of law fixing the measure of damages, nor can it be reached by any process of computation. Boyd v. Boyd, 116 Va. 326 , 82 S.E. 110 , 1914 Va. LEXIS 36 (1914).

    The amount of the damages is to be measured by the prejudice sustained by the plaintiff. Moseley v. Moss, 47 Va. (6 Gratt.) 534, 1850 Va. LEXIS 5 (1850).

    There is no fixed standard for measuring exemplary or punitive damages, and the amount of the award is largely a matter of discretion with the jury. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737, 1972 Va. LEXIS 371 (1972), rev'd, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745, 1974 U.S. LEXIS 87 (1974).

    Written communication to justice of peace under former § 19.1-18. —

    Where a person is charged with criminal trespass, arrested, and let to bail, and the injured private individual causing the arrest asserts in a written communication to a justice of the peace under former § 19.1-18 that he has received satisfaction for the injury, such written communication is one made in a judicial proceeding and is relevant to the matter under inquiry, and no recovery upon such writing can be had under this section. Darnell v. Davis, 190 Va. 701 , 58 S.E.2d 68, 1950 Va. LEXIS 161 (1950).

    If express malice on the part of the defendant is shown, exemplary damages are presumed and need not be proved. It is not improper to instruct the jury that if from the evidence they believe defendant uttered the slander from malice, they may find exemplary damages. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 , 1925 Va. LEXIS 316 (1925).

    When corporation liable for punitive damages. —

    In such case the person who has suffered injury may recover compensatory damages from the corporation as principal, and may recover punitive damages if the principal has authorized the act or has subsequently ratified it. Jordan v. Melville Shoe Corp., 150 Va. 101 , 142 S.E. 387 , 1928 Va. LEXIS 298 (1928).

    Actual damages must be proved for judgment against principal on unauthorized insult of agent. —

    In an action for insulting words against the Director General of Railroads, no actual damages were proved, and the only damages which could be recovered were punitive damages, and this only because of this section. It was held that plaintiff had failed in his proof to show that he was entitled to any damages, as punitive damages could not be recovered against the Director General. Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 , 1922 Va. LEXIS 201 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 1191, 1924 U.S. LEXIS 3159 (1924).

    Authorization or ratification by principal necessary to sustain punitive damages against him. —

    In an action for damages for insulting words under this section against the Director General of Railroads, there being no evidence that the federal agent or the Director General ever at any time authorized, ratified, or approved the offensive charge made by a carrier’s agent, instructions authorizing the recovery of punitive damages were erroneous. Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 , 1922 Va. LEXIS 201 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 1191, 1924 U.S. LEXIS 3159 (1924).

    In an action for insulting words, defendant corporation was liable for compensatory damages for the utterance of insulting words by its agent, in the course of his employment in the business of the corporation, but not for punitive damages, because the corporation neither authorized the use of such words nor had it since ratified their use. The trial court, therefore, was right in setting aside the verdict as the damages awarded, or part thereof, were clearly punitive, but it erred in entering judgment for the defendant corporation. It should have awarded a new trial on the question of the amount of compensatory damages. Jordan v. Melville Shoe Corp., 150 Va. 101 , 142 S.E. 387 , 1928 Va. LEXIS 298 (1928).

    Effect of bad reputation of plaintiff. —

    While there is no rule fixing the quantum of compensation for insult, mental suffering, and injury to the reputation of the plaintiff or for punishment of the offender, one of unblemished reputation is entitled to greater damages than one whose reputation is such that he is little hurt from the action of which complaint is made. The effect of bad reputation is to reduce the damage inflicted. Stubbs v. Cowden, 179 Va. 190 , 18 S.E.2d 275, 1942 Va. LEXIS 211 (1942).

    Effect of motive of defendant. —

    The motive which actuated the person using the words is not material, except upon the questions of malice and the measure of damages. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304, 1946 Va. LEXIS 224 (1946).

    Questions for jury. —

    In cases under this section, the jury is regarded as the best and safest tribunal to determine not only the character of the alleged insulting words, but also the measure of damages. Its verdict will not be set aside in this State, unless it is so grossly excessive, or inadequate, as to indicate that the jury, in rendering it were actuated by prejudice, or corruption, or that they were misled by some mistaken view of the case. Boyd v. Boyd, 116 Va. 326 , 82 S.E. 110 , 1914 Va. LEXIS 36 (1914); Weatherford v. Birchett, 158 Va. 741 , 164 S.E. 535 , 1932 Va. LEXIS 294 (1932); Kroger Grocery & Baking Co. v. Rosenbaum, 171 Va. 158 , 198 S.E. 461 , 1938 Va. LEXIS 269 (1938).

    The determination of the amount of damages in an action under this section is primarily the province of the jury under proper instructions of the court, and the courts are generally reluctant to interfere with their verdict. Nevertheless, each case must be considered on its own facts and circumstances, and whether the award is inadequate or excessive is a legal question addressed to the sound discretion of the court in the exercise of its supervisory power over verdicts to prevent a miscarriage of justice. Stubbs v. Cowden, 179 Va. 190 , 18 S.E.2d 275, 1942 Va. LEXIS 211 (1942).

    Instruction as to mitigation. —

    In a proceeding for damages under the statute, instructing jury that if plaintiff was entitled to recover anything, then in assessing damages they could take into consideration her improper relations with the husband of defendant, if proven in the case, in mitigation of damages, was not error. Stubbs v. Cowden, 179 Va. 190 , 18 S.E.2d 275, 1942 Va. LEXIS 211 (1942).

    I.Evidence.

    Proof of insulting words. —

    In an action under the statute, the plaintiff makes out a prima facie case simply by proving the insulting words whether written or spoken as laid in the motion. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 , 1887 Va. LEXIS 44 (1887).

    Proof of truth and privilege as defense. —

    The truth and privilege are complete defenses, and the same rules of law with reference to the proof of these defenses apply in an action under this section as in an action for common-law slander or libel. Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623, 1944 Va. LEXIS 169 (1944).

    Burden on plaintiff of proving circumstances and meaning of words. —

    In an action under this section plaintiff, treasurer of a quasi-religious organization, contended that defendant, founder and head of the organization, by the use of certain language to the congregation, meant that plaintiff had made a false report of the financial affairs of the organization entrusted to him and had misapplied money. It was held that a literal meaning of the words used did not import misapplication of funds and, this being true, it was encumbent on plaintiff to prove that the manner and circumstances in which the words were uttered conveyed the meaning placed upon them by him. Taylor v. Grace, 166 Va. 138 , 184 S.E. 211 , 1936 Va. LEXIS 174 (1936).

    Where the occasion is one of qualified privilege the burden is cast upon plaintiff to prove malice in fact. In such cases proof might be accomplished by the language itself if it is capable of affording evidence of express malice, or by extrinsic evidence. Story v. Norfolk-Portsmouth Newspapers, Inc., 202 Va. 588 , 118 S.E.2d 668, 1961 Va. LEXIS 149 (1961).

    Evidence of malice. —

    In an action for libel the court did not err in permitting a witness to testify that plaintiff gave her, as a representative of a newspaper, a writing to be inserted conditionally as an advertisement which reflected on defendant’s honor, and indicated that he had not been straight in his accounts while in defendant’s employ. This evidence was admissible to show malice. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 , 1925 Va. LEXIS 316 (1925).

    In an action for libel it was not error for the court to permit a witness to testify to a conversation which he overheard between defendant and a third party in which defendant said plaintiff was “one of the grandest rascals that ever was and if he wanted a man to do the darkest, dirtiest deed he would recommend” plaintiff. The court instructed the jury to consider this evidence for the purpose of ascertaining the state of mind of the defendant. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 , 1925 Va. LEXIS 316 (1925).

    Where the jury found in favor of the alleged utterer of defamatory statements and where the editor failed and neglected to recheck the facts after plaintiff told him the statements were untrue, there was evidence from which the jury could find that the defamatory publication complained of was made with constitutional malice. Newspaper Publishing Corp. v. Burke, 216 Va. 800 , 224 S.E.2d 132, 1976 Va. LEXIS 207 (1976).

    Inference of malice from use of violent and disproportionate language. —

    The inference of actual malice which may arise from the use of violent and disproportionate language is evidentiary and rebuttable. Story v. Norfolk-Portsmouth Newspapers, Inc., 202 Va. 588 , 118 S.E.2d 668, 1961 Va. LEXIS 149 (1961).

    Evidence of falsity of statements. —

    In an action for libel it was not error to permit plaintiff to testify that certain statements alleged to have been made in a letter sent by defendant’s corporation to another corporation were false. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 , 1925 Va. LEXIS 316 (1925).

    Evidence of character of plaintiff in mitigation of damages. —

    In an action on the statute as well as at common law the general bad character of the plaintiff is admissible in mitigation of damages. Moseley v. Moss, 47 Va. (6 Gratt.) 534, 1850 Va. LEXIS 5 (1850).

    The man of unblemished reputation is entitled to greater damage than is one whose reputation is already so bad as to receive little or no detriment from the action of which complaint is made. The purpose of admitting evidence of bad reputation is to diminish the damage, not to bar the action. Injury to the reputation is not the only element for which compensatory damages are allowed, but the pain, the mortification, the insult is usually in proportion to a person’s good or bad reputation. Weatherford v. Birchett, 158 Va. 741 , 164 S.E. 535 , 1932 Va. LEXIS 294 (1932).

    Newspaper articles admissible. —

    In an action under this section for procuring the publication of libelous words in newspaper articles, such articles are admissible in evidence after the use of the actionable words has been established, not only on the question of damages, but in connection with the use of the words sued on as tending to show that the language was employed by defendant prior to the publication. Haskell v. Bailey, 63 F. 873, 1894 U.S. App. LEXIS 2450 (4th Cir. 1894).

    Oral statement prior to publication. —

    A verdict that defendant caused the publication of libelous articles under this section will be sustained when it appears from his testimony as a witness for plaintiff that he used the words set out in the declaration in a conversation with one of the editors of the paper prior to their publication. Haskell v. Bailey, 63 F. 873, 1894 U.S. App. LEXIS 2450 (4th Cir. 1894).

    And like words spoken on another occasion. —

    When the words laid in the declaration have been proved, and not before, proof of the speaking of like words as those laid, either before or after they were spoken, is admissible to affect the measure of damages. Hansbrough v. Stinnett, 66 Va. (25 Gratt.) 495, 1874 Va. LEXIS 75 (1874).

    As tending to show malice, it is always competent for the plaintiff to prove that the defendant has repeated the slander charged, or has used the same, or similar words, upon other occasions. And where statements other than the one upon which the action is based tend to show actual malice in the utterance of the slander sued on, such statements may also be shown in evidence. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 , 1925 Va. LEXIS 316 (1925).

    Other slanderous words, spoken or written of plaintiff, whether before or after those laid in the declaration, may be given in evidence, to show malice on the part of the defendant when that is an issue in the case. Kroger Grocery & Baking Co. v. Rosenbaum, 171 Va. 158 , 198 S.E. 461 , 1938 Va. LEXIS 269 (1938).

    Admission of general manager of corporation weeks after publication not admissible. —

    In an action under the statute, admissions by the general manager of the defendant corporation made weeks after the publication of the alleged libel are not a part of the res gestae and cannot be introduced as evidence for the plaintiff. M. Reusch v. Roanoke Cold Storage Co., 91 Va. 534 , 22 S.E. 358 , 1895 Va. LEXIS 49 (1895), overruled, M. Rosenberg & Sons, Inc. v. Craft, 182 Va. 512 , 29 S.E.2d 375, 1944 Va. LEXIS 200 (1944).

    Character of witnesses no evidence as to damages. —

    In an action for defamation, where the speaking of the insulting words is admitted, the character of the witnesses who testified only as to the language used and the circumstances attending its utterance, and not as to the damages sustained, is of no value in determining the damages sustained. Boyd v. Boyd, 116 Va. 326 , 82 S.E. 110 , 1914 Va. LEXIS 36 (1914).

    When repetition may be shown in evidence against original slanderer. —

    When a repetition is authorized and is the direct and natural result of the original slander, it may be shown in evidence against the original defamer, and this is especially true where it was intended and contemplated that the slander be repeated. Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416, 1952 Va. LEXIS 163 (1952).

    Evidence held insufficient to sustain verdict for plaintiff under count for insulting words. M. Rosenberg & Sons v. Craft, 182 Va. 512 , 29 S.E.2d 375, 1944 Va. LEXIS 200 (1944), overruled in part, Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171 (1985).

    J.Pleading and Practice.
    1.In General.

    Election of remedies. —

    A person aggrieved by the insulting words of another may elect whether he will proceed as at common law or under the statute. Moseley v. Moss, 47 Va. (6 Gratt.) 534, 1850 Va. LEXIS 5 (1850); Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80, 1860 Va. LEXIS 5 (1860); Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 , 1887 Va. LEXIS 44 (1887); Payne v. Tancil, 98 Va. 262 , 35 S.E. 725 , 1900 Va. LEXIS 36 (1900); Sun Life Assurance Co. of Can. v. Bailey, 101 Va. 443 , 44 S.E. 692 , 1903 Va. LEXIS 50 (1903).

    A person aggrieved by the insulting words of another must declare either for a common-law slander or for insulting words under the statute; he cannot declare for both unless he does so separately in distinct counts of the declaration. Moseley v. Moss, 47 Va. (6 Gratt.) 534, 1850 Va. LEXIS 5 (1850); Bourland v. Eidson, 49 Va. (8 Gratt.) 27, 1851 Va. LEXIS 35 (1851); Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80, 1860 Va. LEXIS 5 (1860); Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 , 1887 Va. LEXIS 44 (1887).

    Jurisdiction and venue. —

    Words actionable at common law may be sued on in a common-law action in any jurisdiction where the defendant may be found. But where the action rests upon a statute and the words were spoken or published exclusively in a state other than that in which the action was brought, the plaintiff must prove as a fact that a like statute was in force in such other state. Davis v. Heflin, 130 Va. 169 , 107 S.E. 673 , 1921 Va. LEXIS 148 (1921) (see also Haskell v. Bailey, 63 F. 873 (4th Cir. 1894)).

    Effect of elimination of provision as to demurrer. —

    The 1940 amendment of this section which eliminated the sentence that no demurrer shall preclude a jury from passing thereon, revealed that it was the intent of the legislature that the court should exercise the same power and authority over actions for insulting words that it exercises over actions of libel and slander. M. Rosenberg & Sons v. Craft, 182 Va. 512 , 29 S.E.2d 375, 1944 Va. LEXIS 200 (1944), overruled in part, Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171 (1985).

    Bill of particulars held not to state new cause of action. —

    Bill of particulars filed in action for slander more than one year after the alleged tort did not state a new and distinct cause of action against the defendants which would be barred by the statutes of limitations and was not an amendment to the original notice of motion where the bill of particulars only particularized, specified, and pointed out the intended and accomplished result of the original statements and the damages directly caused thereby. Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416, 1952 Va. LEXIS 163 (1952).

    2.Motion.

    What must be stated in motion. —

    In an action of slander, if the plaintiff proceeds under the statute, he must in his motion aver that the words from their usual construction and common acceptation are construed as insults, and tend to violence and breach of the peace, or else employ some other equivalent averment to denote that the words are actionable under the statute. Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80, 1860 Va. LEXIS 5 (1860).

    A motion alleged in each count that the words used are, “from their usual construction and common acceptance, construed as insults, and tend to violence and breach of the peace.” Such are the terms of the statute, which makes the motion one under the statute, though the words used are objectionable at common law. Haskell v. Bailey, 63 F. 873, 1894 U.S. App. LEXIS 2450 (4th Cir. 1894).

    If plaintiff does not move under the statute, his motion must set out a common-law slander, and if the words charged do not amount to slander they cannot be helped by the innuendo. Moseley v. Moss, 47 Va. (6 Gratt.) 534, 1850 Va. LEXIS 5 (1850).

    Where the motion does not show by the proper averments that the action is under the statute, it may be demurred to as defective, unless it sets out properly, and in substantial compliance with the rules of pleading, such a charge as constitutes defamation at the common law. Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80, 1860 Va. LEXIS 5 (1860).

    3.Pleas.

    Pleading the truth and privilege. —

    The same rules of law with reference to pleading the defenses of the truth and privilege apply in an action under this section as in an action at law for common-law slander or libel. Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623, 1944 Va. LEXIS 169 (1944).

    When plea of special damages required. —

    Where alleged defamatory language was not actionable per se, and there were no allegations or proof of special damages, the trial court did not err in striking out plaintiff’s evidence and dismissing the action. Shupe v. Rose's Stores, Inc., 213 Va. 374 , 192 S.E.2d 766, 1972 Va. LEXIS 370 (1972).

    Plea of bankruptcy of plaintiff. —

    In an action of slander, a plea that since the commencement of the action the plaintiff has been adjudicated a bankrupt, is not a good plea. Dillard v. Collins, 66 Va. (25 Gratt.) 343, 1874 Va. LEXIS 63 (1874).

    4.Instructions.

    Instruction as to malice. —

    In an action for libel an instruction that if from the evidence the jury believe that the charges contained in the letter were untrue, and if they further believe from the evidence that the defendant has reiterated the charges therein, this is a circumstance tending to show malice on the part of the defendant, was not erroneous. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 , 1925 Va. LEXIS 316 (1925).

    Instruction as to privilege. —

    In an action under this section, instruction that if a newspaper’s account of a court proceeding was a fair, impartial and substantially accurate report the privilege of the newspaper to publish it was a complete defense, was fair to the plaintiff and correctly stated the law. Vaughan v. News Leader Co., 105 F.2d 360, 1939 U.S. App. LEXIS 3330 (4th Cir. 1939).

    Privilege and abuse thereof. —

    Where allegedly libelous publications were made in response to attacks on certain of defendants made by plaintiff in his newspaper, the court was held to have instructed correctly that the occasion was privileged, but the instructions were held faulty in that they did not sufficiently define for the jury what constitutes an abuse of privilege. Haycox v. Dunn, 200 Va. 212 , 104 S.E.2d 800, 1958 Va. LEXIS 178 (1958).

    Instructions as to truth of statements. —

    In an action for libel defendant requested the court to instruct the jury that if they believe from the evidence that the alleged libelous statements contained in the letter from defendant were substantially true, they must find for the defendant. The court refused to give this instruction as offered, but amended the same by inserting after the words “substantially true” the words “in the ordinary and usually accepted meaning thereof.” Vaughan v. Lytton, 126 Va. 671 , 101 S.E. 865 , 1920 Va. LEXIS 18 (1920).

    Instructions as to damages. —

    Where the court had properly instructed the jury as to the rights of plaintiff to recover exemplary damages, it was not error for the court to modify an instruction for defendant limiting the plaintiff to actual damages by adding: “But this instruction must be considered in connection with instructions” in regard to exemplary damages. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 , 1925 Va. LEXIS 316 (1925).

    Instruction as to burden of proof. —

    In an action under this section, an instruction that the burden was upon each plaintiff to prove by a preponderance of the evidence that the defendant circulated defamatory statements with actual malice correctly stated the law. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737, 1972 Va. LEXIS 371 (1972), rev'd, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745, 1974 U.S. LEXIS 87 (1974).

    Instruction held erroneous. —

    Where the publication complained of depicted the plaintiff as the “operator” of a club which was being run illegally, it was error to instruct the jury to find for defendant if they found plaintiff owned the club and consented to its illegal operation. Saleeby v. Free Press, Inc., 197 Va. 761 , 91 S.E.2d 405, 1956 Va. LEXIS 150 (1956).

    5.Province of Court and Jury.

    It is the duty of the court to define what constitutes insulting words, and it is for the jury to say whether the particular words come within the definition. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304, 1946 Va. LEXIS 224 (1946).

    It is for the jury to determine whether or not the words were insulting. Moseley v. Moss, 47 Va. (6 Gratt.) 534, 1850 Va. LEXIS 5 (1850).

    In an action under this section whether or not the words used are insulting is a jury question, depending on whether from “their usual construction and common acceptation” they may be “construed as insults, and tend to violence and breach of the peace.” Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304, 1946 Va. LEXIS 224 (1946).

    When question of law or of fact. —

    To justify publication of defamatory matter, the occasion must be privileged, and must be used bona fide, without malice. Whether the occasion be privileged, is a question of law for the court. Whether it has been used bona fide, is a question of fact for the jury. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 , 1887 Va. LEXIS 44 (1887).

    Determination of whether or not the occasion is one of qualified privilege is ordinarily a matter to be decided by the court. Yet if the evidence upon which the asserted privilege is based is in substantial conflict, whether or not the occasion is one of privilege becomes a mixed question of law and fact to be determined by the jury under appropriate instructions from the court. Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416, 1952 Va. LEXIS 163 (1952).

    Though the occasion be qualifiedly privileged, if the language used be clearly disproportionate, extraneous and impertinent to the occasion and subject at hand, and thus beyond the scope and protection of the privilege, then there is no factual issue on the abuse of privilege to submit to the jury. Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416, 1952 Va. LEXIS 163 (1952).

    The question of privilege was one for the court, and the question of the use which the defendants made of their privilege, that is, whether they acted maliciously or not, was a question for the jury to decide. Haycox v. Dunn, 200 Va. 212 , 104 S.E.2d 800, 1958 Va. LEXIS 178 (1958).

    The existence of a privileged (either absolute or qualified) occasion is a question of law to be decided by the court. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614, 1967 U.S. Dist. LEXIS 8480 (W.D. Va. 1967).

    It is for the jury to determine what damage was occasioned to the plaintiff by the insulting words. Moseley v. Moss, 47 Va. (6 Gratt.) 534, 1850 Va. LEXIS 5 (1850).

    In action under this section, the question whether a published report of a court proceeding was a “fair, impartial and accurate report” was one for the jury. Whether the plaintiff suffered any damages from an inaccurate report was also a question for the jury. Vaughan v. News Leader Co., 105 F.2d 360, 1939 U.S. App. LEXIS 3330 (4th Cir. 1939).

    Malice is question for jury. —

    Notwithstanding that the occasion was privileged, there was evidence upon which the jury might properly have found that the privilege was abused. The language itself, italicized by the defendant, taken in connection with the previous correspondence and dispute between the parties, would warrant the court in upholding the action of the jury upon the question of malice. Vaughan v. Lytton, 126 Va. 671 , 101 S.E. 865 , 1920 Va. LEXIS 18 (1920).

    The words used, under the circumstances recited, were sufficient to submit to the jury the question whether or not defendants were actuated by actual malice. Haycox v. Dunn, 200 Va. 212 , 104 S.E.2d 800, 1958 Va. LEXIS 178 (1958).

    Ordinarily, the question of whether the defendant acted with malice is a question of fact to be presented to the jury. But where the communication is privileged, unless there is evidence from which a jury may fairly conclude that there was malice, there can be no recovery. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614, 1967 U.S. Dist. LEXIS 8480 (W.D. Va. 1967).

    Setting aside verdict. —

    While as a general rule the jury is regarded as the best and safest tribunal to determine whether the words are or are not actionable, the court has inherent power to set aside the verdict, “in order to correct any manifest departure from right and justice.” Guide Publishing Co. v. Futrell, 175 Va. 77 , 7 S.E.2d 133, 1940 Va. LEXIS 149 (1940).

    In an action under the statute the court would have the power to correct any manifest departure from right and justice on the part of the jury. Corr v. Lewis, 94 Va. 24 , 26 S.E. 385 , 1896 Va. LEXIS 140 (1896).

    CIRCUIT COURT OPINIONS

    Actionable words. —

    Defendant’s statement at public meeting that the plaintiff, who was married, was “shacking up with a blond from Hillsboro” was actionable per se as that statement meant the plaintiff was sleeping with or living together with the blond as unmarried sexual partners, which was an adulterous relationship. The jury was to decide if the statement was meant to describe actual facts. Kelly v. Grigsby, 67 Va. Cir. 153, 2005 Va. Cir. LEXIS 172 (Loudoun County Mar. 8, 2005).

    Curse words not actionable. —

    Curse words and gutter language used during the course of an altercation could not be understood to convey a false representation of fact. The words used, although uncivilized and offensive, did not rise to the level necessary to sustain a cause of action for defamation and similarly a claim under the Insulting Words Statute. Walker v. Harrison, 75 Va. Cir. 319, 2008 Va. Cir. LEXIS 249 (Salem July 7, 2008).

    Words did not tend to produce violent reaction. —

    Alleged son failed to present facts necessary to support a claim for insulting words under § 8.01-45 because the words an alleged father used did not meet the standard of tending to cause violence or a breach of the peace since they were not uttered in a face to face confrontation or manner likely to present a clear and immediate danger of the same; for § 8.01-45 to be actionable the words must be conveyed face to face or in such manner as to incite an immediate breach of the peace. Hotung v. Hotung, 85 Va. Cir. 241, 2012 Va. Cir. LEXIS 71 (Fairfax County Aug. 22, 2012), dismissed, No. 122186, No. 130264, 2014 Va. Unpub. LEXIS 2 (Va. Feb. 7, 2014).

    False representation of fact. —

    Words at issue in a case must convey a false representation of fact to be actionable under the Insulting Words Statute. Walker v. Harrison, 75 Va. Cir. 319, 2008 Va. Cir. LEXIS 249 (Salem July 7, 2008).

    Jury’s function. —

    While a statement was actionable per se, it was for the jury to determine whether, under the circumstances of the case, the phrase was reasonably understood by listeners to describe an actual fact. To make that decision, the jurors were to take into consideration the entire background of the case and the context in which the statements were made. Kelly v. Grigsby, 67 Va. Cir. 153, 2005 Va. Cir. LEXIS 172 (Loudoun County Mar. 8, 2005).

    Comments on work performance when an employer discussed the character of its employee with its employee’s potential employers, the employer was protected by the qualified privilege if such a conversation was made in good faith and if the statements were not made with malice, and plaintiff failed to show malice on the part of defendant in making the statements in question. Sarno v. Clanton, 59 Va. Cir. 384, 2002 Va. Cir. LEXIS 371 (Norfolk Aug. 22, 2002).

    Statements relating to job performance. —

    Statements imputing unfitness to perform the offices or duties of employment or lack of integrity in the discharge of those duties were such as may have provoked reasonable persons to breaches of the peace, since they were made after plaintiffs had been cleared of wrongdoing. Jennings v. Jones, 70 Va. Cir. 56, 2005 Va. Cir. LEXIS 294 (Petersburg Oct. 7, 2005).

    Statements insufficient to make out cause of action. —

    Father’s demurrer to an attorney’s complaint alleging that statements the father made in a letter tended toward violence or breach of the peace pursuant to § 8.01-45 was sustained because the father’s statements were not sufficient to make out a cause of action under § 8.01-45 since they did not tend to violence and breach of the peace; no amendment to the complaint would cure the deficiency. Donner v. Rubin, 77 Va. Cir. 309, 2008 Va. Cir. LEXIS 238 (Chesapeake Dec. 2, 2008).

    Alleged father’s motion to strike the insulting words count of an alleged son’s complaint was granted because the son used the identical publication to support both the defamation and insulting words counts; absent the clear and present tendency to incite violence, insulting words count was entirely subsumed by defamation, and there was but one cause of action that could be predicated upon the set of facts, and the cause of action was defamation. Hotung v. Hotung, 85 Va. Cir. 241, 2012 Va. Cir. LEXIS 71 (Fairfax County Aug. 22, 2012), dismissed, No. 122186, No. 130264, 2014 Va. Unpub. LEXIS 2 (Va. Feb. 7, 2014).

    Demurrer sustained for failure to state a cause of action. —

    Demurrers filed by a former employer and former supervisors were sustained and a former employee’s cause of action for insulting words was dismissed because the statements the supervisors made, in which they allegedly used abusive language in calling the employee stupid, were relative in nature and depended largely upon the speaker’s viewpoint; therefore, the employee failed to state facts that supported a cause of action for defamation based upon the statements. Jarrett v. Goldman, 67 Va. Cir. 361, 2005 Va. Cir. LEXIS 49 (Portsmouth May 31, 2005).

    § 8.01-46. Justification and mitigation of damages.

    In any action for defamation, the defendant may justify by alleging and proving that the words spoken or written were true, and, after notice in writing of his intention to do so, given to the plaintiff at the time of, or for, pleading to such action, may give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so in case the action shall have been commenced before there was an opportunity of making or offering such apology.

    History. Code 1950, § 8-631; 1977, c. 617.

    Law Review.

    For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Libel and Slander, § 24.

    CASE NOTES

    It is not necessary to prove the literal truth of statements made. Alexandria Gazette Corp. v. West, 198 Va. 154 , 93 S.E.2d 274, 1956 Va. LEXIS 186 (1956) (decided under prior law).

    And slight inaccuracies of expression are immaterial, provided the defamatory charge is true in substance, and it is sufficient to show that the imputation is “substantially” true. Saleeby v. Free Press, Inc., 197 Va. 761 , 91 S.E.2d 405, 1956 Va. LEXIS 150 (1956); Alexandria Gazette Corp. v. West, 198 Va. 154 , 93 S.E.2d 274, 1956 Va. LEXIS 186 (1956) (decided under prior law).

    As a matter of state law the negligence standard should be applicable to media and nonmedia defendants alike. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    The application of this negligence standard is expressly limited, however, to circumstances where the defamatory statement makes substantial danger to reputation apparent. The trial judge shall make such determination as a matter of law. If, on the other hand, no substantial danger to reputation is apparent from the statement in issue, New York Times malice must be established to recover compensatory damages. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    Truth only shown by plea of justification. —

    The truth of defamatory words, written or spoken, cannot in this State be shown under the plea of not guilty, either in bar or in mitigation of damages, but can only be shown under a plea of justification. Williams Printing Co. v. Saunders, 113 Va. 156 , 73 S.E. 472 , 1912 Va. LEXIS 21 (1912) (decided under prior law).

    The language used in this section that “the defendant may justify by alleging and proving that the words spoken or written were true,” plainly intends that the truth shall be specially pleaded, for if the legislature had intended that the proof should be given in under the plea of not guilty, there was no occasion to require that it should be alleged. Williams Printing Co. v. Saunders, 113 Va. 156 , 73 S.E. 472 , 1912 Va. LEXIS 21 (1912) (decided under prior law).

    Plaintiff must prove falsity. —

    In an action brought by a private individual to recover actual, compensatory damages for a defamatory publication, the plaintiff may recover upon proof by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based. Under this standard, truth no longer is an affirmative defense to be established by the defendant. Instead, the plaintiff must prove falsity, because he is required to establish negligence with respect to such falsity. Such liability may be based upon negligence, whether or not the publication in question relates to a matter of public or general concern. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    An apology under this section goes only to mitigate damages, and if the plaintiff agrees to accept it in complete satisfaction it is an agreement without consideration. James v. Powell, 154 Va. 96 , 152 S.E. 539 , 1930 Va. LEXIS 200 (1930) (decided under prior law).

    An apology published after an action for libel has been instituted would be of no avail. James v. Powell, 154 Va. 96 , 152 S.E. 539 , 1930 Va. LEXIS 200 (1930) (decided under prior law).

    § 8.01-46.1. Disclosure of employment-related information; presumptions; causes of action; definitions.

    1. Any employer who, upon request by a person’s prospective or current employer, furnishes information about that person’s professional conduct, reasons for separation or job performance, including, but not limited to, information contained in any written performance evaluations, shall be immune from civil liability for furnishing such information, provided that the employer is not acting in bad faith. An employer shall be presumed to be acting in good faith. The presumption of good faith shall be rebutted if it is shown by clear and convincing evidence that the employer disclosed such information with knowledge that it was false, or with reckless disregard for whether it is false or not, or with the intent to deliberately mislead.
    2. In a civil action brought against an employer for disclosing the information described in subsection A, if the trier of fact determines the employer acted in bad faith, punitive damages may be awarded, as provided by § 8.01-38.1 .
    3. As used in this section, the following words and phrases shall have the following meanings:“Employee” means any person, paid or unpaid, in the service of an employer.“Employer” means any person, firm or corporation, including the Commonwealth of Virginia and its political subdivisions, and their agents, who has one or more employees or individuals performing services under any contract of hire or service, express or implied, oral or written.“Information” includes, but is not limited to, facts, data and opinions.“Job performance” includes, but is not limited to, ability, attendance, awards, demotions, duties, effort, evaluations, knowledge, skills, promotions, productivity and disciplinary actions.“Professional conduct” includes, but is not limited to, the ethical standards which govern the employee’s profession, or lawful conduct which is expected of the employee by the employer.“Prospective employer” means any employer who is considering a person for employment.

    History. 2000, c. 1005.

    Editor’s note.

    Acts 2000, c. 1005, cl. 2 provides that the provisions of the act shall apply to any cause of action occurring on or after July 1, 2000.

    Law Review.

    For 2000 survey of Virginia labor and employment law, see 34 U. Rich. L. Rev. 907 (2000).

    CIRCUIT COURT OPINIONS

    Entitlement to qualified privilege. —

    When an employer discussed the character of its employee with its employee’s potential employers, the employer was protected by the qualified privilege if such a conversation was made in good faith and if the statements were not made with malice, and plaintiff failed to show malice on the part of defendant in making the statements in question. Sarno v. Clanton, 59 Va. Cir. 384, 2002 Va. Cir. LEXIS 371 (Norfolk Aug. 22, 2002).

    § 8.01-47. Immunity of persons investigating or reporting certain incidents at schools.

    In addition to any other immunity he may have, any person who, in good faith with reasonable cause and without malice, acts to report, investigate or cause any investigation to be made into the activities of any student or students or any other person or persons as they relate to conduct involving bomb threats, firebombs, explosive materials or other similar devices as described in clauses (vi) and (vii) of subsection A of § 22.1-279.3:1, alcohol or drug use or abuse in or related to the school or institution or in connection with any school or institution activity, or information that an individual poses any credible danger of serious bodily injury or death to one or more students, school personnel, or others on school property shall be immune from all civil liability that might otherwise be incurred or imposed as the result of the making of such a report, investigation or disclosure.

    History. Code 1950, § 8-631.1; 1972, c. 762; 1977, c. 617; 1982, c. 259; 1988, c. 159; 1995, c. 759; 2000, c. 79; 2001, cc. 688, 820; 2003, c. 954; 2013, c. 665.

    Editor’s note.

    At the direction of the Code Commission, the amendment to this section by Acts 1995, c. 759, was not implemented in light of the decision not to implement the amendment by Acts 1995, c. 759, to § 22.1-280.1 because of a conflict with the amendment to § 22.1-280.1 by Acts 1995, c. 773. The 1995 amendment would have inserted a reference to § 22.1-280.1. The 2000 amendment subsequently added the reference.

    The 2000 amendments.

    The 2000 amendment by c. 79 inserted “conduct involving bomb threats, firebombs, explosive materials or other similar devices as described in clauses (v) and (vi) of § 22.1-280.1 A, or.”

    The 2001 amendments.

    The 2001 amendments by c. 688 and c. 820 are identical, and substituted “§ 22.1-279.3:1” for “§ 22.1-280.1.”

    The 2003 amendments.

    The 2003 amendment by c. 954 substituted “clauses (vi) and (vii)” for “clauses (v) and (vi).”

    The 2013 amendments.

    The 2013 amendment by c. 665, substituted “any person” for “any teacher, instructor, principal, school administrator, school coordinator, guidance counselor or any other professional, administrative or clerical staff member or other personnel of any elementary or secondary school, or institution of higher learning,” substituted “subsection A of § 22.1-279.3:1” for “§ 22.1-279.3:1 A, or,” and inserted “or information that an individual poses any credible danger of serious bodily injury or death to one or more students, school personnel, or others on school property.”

    Law Review.

    For 1995 survey of civil practice and procedure, see 29 U. Rich. L. Rev. 897 (1995).

    § 8.01-48. Mitigation in actions against newspapers, etc.

    In any civil action against the publisher, owner, editor, reporter or employee of any newspaper, magazine or periodical under § 8.01-45 , or for libel or defamation, because of any article, statement or other matter contained in any such newspaper, magazine or periodical, the defendant, whether punitive damages be sought or not, may introduce in evidence in mitigation of general and punitive damages, or either, but not of actual pecuniary damages, all the circumstances of the publication, including the source of the information, its character as affording reasonable ground of reliance, any prior publication elsewhere of similar purport, the lack of negligence or malice on the part of the defendant, the good faith of the defendant in such publication, or that apology or retraction, if any, was made with reasonable promptness and fairness; provided that the defendant may introduce in evidence only such circumstances and to the extent set forth in his or its grounds of defense.

    History. Code 1950, § 8-632; 1954, c. 333; 1977, c. 617.

    Law Review.

    For comment on the constitutional privileges of publishers, see 11 U. Rich. L. Rev. 177 (1976).

    For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Libel and Slander, §§ 15, 24, 34, 43.

    CASE NOTES

    Purpose of section. —

    By the express mandate of this section certain evidence in mitigation, not admissible prior to this section where punitive damages were not claimed, was made admissible, and was designed to mitigate general damages to which a plaintiff theretofore had been entitled. News Leader Co. v. Kocen, 173 Va. 95 , 3 S.E.2d 385, 1939 Va. LEXIS 179 (1939) (decided under a prior version of this section).

    As a matter of state law the negligence standard should be applicable to media and nonmedia defendants alike. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    The application of this negligence standard is expressly limited, however, to circumstances where the defamatory statement makes substantial danger to reputation apparent. The trial judge shall make such determination as a matter of law. If, on the other hand, no substantial danger to reputation is apparent from the statement in issue, New York Times malice must be established to recover compensatory damages. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    Plaintiff must prove falsity. —

    In an action brought by a private individual to recover actual, compensatory damages for a defamatory publication, the plaintiff may recover upon proof by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based. Under this standard, truth no longer is an affirmative defense to be established by the defendant. Instead, the plaintiff must prove falsity, because he is required to establish negligence with respect to such falsity. Such liability may be based upon negligence, whether or not the publication in question relates to a matter of public or general concern. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    Province of jury. —

    The jury might determine that the evidence introduced under the provisions of this section eliminated all general or compensatory damages not “actual pecuniary,” and thus allow plaintiff only nominal damages. The weight to be given the evidence introduced in mitigation is peculiarly the province of the jury, and not of the court. News Leader Co. v. Kocen, 173 Va. 95 , 3 S.E.2d 385, 1939 Va. LEXIS 179 (1939) (decided under prior law).

    Instruction on damages. —

    Obviously it would be error to use the expression “slight actual damages” or “substantial actual damages.” As compensatory damages include all damages other than punitive or exemplary, the use of the word “substantial” in an instruction unduly emphasizes the amount of damages which may be awarded. Any modifying word or phrase of the term “actual or compensatory damages” does not clarify the meaning intended to be conveyed and should be avoided. News Leader Co. v. Kocen, 173 Va. 95 , 3 S.E.2d 385, 1939 Va. LEXIS 179 (1939) (decided under prior law).

    § 8.01-49. Defamatory statements in radio and television broadcasts.

    The owner, licensee or operator of a radio and television broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of any such broadcast, by one other than such owner, licensee or operator, or agent or employee thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator, such agent or employee, failed to exercise due care to prevent the publication or utterance of such statement in such broadcast; provided, however, that in no event shall any owner, licensee or operator, or the agents or employees of any such owner, licensee or operator of such a station or network of stations be held liable for damages for any defamatory statement broadcast over the facilities of such station or network by or on behalf of any candidate for public office.

    History. Code 1950, § 8-632.1; 1977, c. 617.

    REVISERS’ NOTE

    The former § 8-632.1 phrase “visual or sound radio” modifying “broadcasts” has been changed to “radio and television” so as to clearly indicate the section’s applicability to all such broadcasts.

    Law Review.

    For comment on the constitutional privileges of publishers, see 11 U. Rich. L. Rev. 177 (1976).

    For note on defamation of public figures, see 39 Wash. & Lee L. Rev. 1327 (1982).

    For article on libel and slander in Virginia, see 17 U. Rich. L. Rev. 769 (1983).

    § 8.01-49.1. Liability for defamatory material on the Internet.

    1. No provider or user of an interactive computer service on the Internet shall be treated as the publisher or speaker of any information provided to it by another information content provider. No provider or user of an interactive computer service shall be liable for (i) any action voluntarily taken by it in good faith to restrict access to, or availability of, material that the provider or user considers to be obscene, lewd, lascivious, excessively violent, harassing, or intended to incite hatred on the basis of race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin, whether or not such material is constitutionally protected, or (ii) any action taken to enable, or make available to information content providers or others, the technical means to restrict access to information provided by another information content provider.
    2. As used in this section:“Disability” means a physical or mental impairment that substantially limits one or more of a person’s major life activities.“Information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.“Interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.“Internet” means the international computer network of interoperable packet-switched data networks.

    History. 2000, c. 930; 2020, cc. 746, 1171.

    Cross references.

    For procedure in civil proceeding where it is alleged that an anonymous individual has engaged in Internet communications that are tortious, see § 8.01-407.1 .

    Editor’s note.

    Acts 2020, cc. 746 and 1171, cl. 2 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.”

    Acts 2020, c. 746, cl. 3 provides: “That the provisions of this act shall not become effective unless an appropriation effectuating the purposes of this act is included in a general appropriation act passed in 2020 by the General Assembly that becomes law.”

    The 2020 amendments.

    The 2020 amendments by cc. 746 and 1171 are identical, and in subsection A, inserted “gender, disability, gender identity, sexual orientation” in clause (i); in subsection B, deleted “Definitions” at the beginning and inserted the definition of “Disability”.

    Law Review.

    For 2000 survey of Virginia technology law, see 34 U. Rich. L. Rev. 1051. (2000).

    Article 5. Death by Wrongful Act.

    § 8.01-50. Action for death by wrongful act; how and when to be brought.

    1. Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, or of any ship or vessel, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action, or to proceed in rem against such ship or vessel or in personam against the owners thereof or those having control of her, and to recover damages in respect thereof, then, and in every such case, the person who, or corporation or ship or vessel which, would have been liable, if death had not ensued, shall be liable to an action for damages, or, if a ship or vessel, to a libel in rem, and her owners or those responsible for her acts or defaults or negligence to a libel in personam, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances, as amount in law to a felony.
    2. Whenever a fetal death, as defined in § 32.1-249 , is caused by the wrongful act, neglect, or default of any person, ship, vessel, or corporation, the natural mother of the fetus may bring an action pursuant to this section against such tortfeasor. Nothing in this section shall be construed to create a cause of action for a fetal death against the natural mother of the fetus.
    3. Every such action under subsection A shall be brought by and in the name of the personal representative of such deceased person. Actions for fetal death under subsection B shall be brought by and in the name of the natural mother; provided, however, if the natural mother dies, or is or becomes a person under a disability as defined in § 8.01-2 , such action may be initiated or maintained by the administrator of the natural mother’s estate, her guardian, or her personal representative qualified to bring such action. In an action for fetal death under subsection B brought under Chapter 21.1 (§ 8.01-581.1 et seq.) where the wrongful act that resulted in a fetal death also resulted in the death of another fetus of the natural mother or in the death or injury of the natural mother, recovery for all damages sustained as a result of such wrongful act shall not exceed the limitations on the total amount recoverable for a single patient for any injury under § 8.01-581.15 . The person bringing an action under subsection B shall have the power to compromise a claim pursuant to § 8.01-55 and any damages recovered shall be distributed pursuant to this article. Every such action under this section shall be brought within the time limits specified in § 8.01-2 44.
    4. If the deceased person was an infant who was in the custody of a parent pursuant to an order of court or written agreement with the other parent, administration shall be granted first to the parent having custody; however, that parent may waive his right to qualify in favor of any other person designated by him. If no such parent or his designee applies for administration within 30 days from the death of the infant, administration shall be granted as in other cases.
    5. For purposes of this section, “natural mother” means the woman carrying the child.

    History. Code 1950, § 8-633; 1958, c. 470; 1977, c. 617; 1981, c. 115; 2012, c. 725.

    REVISERS’ NOTE

    This proposal combines former §§ 8-633 and 8-634 with the former being subsection (a), and the latter subsection (b). Changes include:

    1. The survival provisions in former § 8-633 have been deleted as unnecessary. See § 8.01-25 .
    2. The statute of limitations provisions in former §§ 8-633 and 8-634 have been removed and placed in § 8.01-244 .
    3. The last paragraph of former §§ 8-633 and 8-634 regarding the statute of limitations in pre-July 1, 1958 actions have been deleted as no longer having any significance.

    Cross references.

    As to appointment of administrator for prosecution of action for personal injury or wrongful death against or on behalf of estate of deceased resident or nonresident, see § 64.2-454 .

    As to when inventory and settlement not required of personal representative, see § 64.2-1301 .

    For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

    For rule on substitution of parties, see Rule 3:17.

    The 2012 amendments.

    The 2012 amendment by c. 725 added subsections B and E; redesignated former subsections B and C as subsections C and D; and rewrote subsection C.

    Law Review.

    For article, “Basic Protection and Future of Negligence Law,” see 3 U. Rich. L. Rev. 1 (1968).

    For survey of Virginia law on torts for the year 1967-1968, see 54 Va. L. Rev. 1649 (1968).

    for the year 1968-1969, see 55 Va. L. Rev. 1395 (1969).

    For comment, “Wrongful Death: Assignment of Right to Potential Proceeds,” see 26 Wash. & Lee L. Rev. 384 (1969).

    For survey of Virginia law on torts for the year 1969-1970, see 56 Va. L. Rev. 1419 (1970).

    For articles on damages recoverable for wrongful death, see 5 U. Rich. L. Rev. 213 (1971) and 12 Wm. & Mary L. Rev. 396 (1970).

    For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973).

    For note discussing diversity jurisdiction and wrongful death actions brought by nonresident administrators, see 30 Wash. & Lee L. Rev. 282 (1973).

    For article, “Telling the Time of Human Death by Statute: An Essential and Progressive Trend,” see 31 Wash. & Lee L. Rev. 521 (1974).

    For note, “Tort Law — Interspousal Immunity — Action for Wrongful Death Against Surviving Spouse Held Maintainable When Such Act Terminates Marriage and Neither Child Nor Grandchild Survives Decedent — Korman v. Carpenter, 216 Va. 86 , 216 S.E.2d 195 (1975),” see 10 U. Rich. L. Rev. 434 (1976).

    For comment, “The Covenant Not to Sue: Virginia’s Effort to Bury the Common Law Rule Regarding the Release of Joint Tortfeasors,” see 14 U. Rich. L. Rev. 809 (1980).

    For survey of Virginia law on practice and pleading for the year 1978-1979, see 66 Va. L. Rev. 343 (1980).

    For note discussing wrongful death of child conceived by in vitro fertilization, see 17 U. Rich. L. Rev. 311 (1983).

    For article, “Civil Rights and ‘Personal Injuries’: Virginia’s Statute of Limitations for Section 1983 Suits,” see 26 Wm. & Mary L. Rev. 199 (1985).

    For 1987 survey of Virginia civil procedure and practice, see 21 U. Rich. L. Rev. 667 (1987).

    For note, “Recovery for the Wrongful Death of a Fetus,” see 25 U. Rich. L. Rev. 391 (1991).

    For a review of damages in medical malpractice in Virginia, see 33 U. Rich. L. Rev. 919 (1999).

    For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

    For annual survey essay, “Election of Remedies in the Twenty-First Century: Centra Health, Inc. v. Mullins,” 44 U. Rich. L. Rev. 149 (2009).

    For essay “Bifurcation of Civil Trials,” see 45 U. Rich. L. Rev. 1 (2010).

    For note, “The Vote From Beyond the Grave,” see 51 Wm. and Mary L. Rev. 1583 (2010).

    For essay, “How (Not) to Talk About Abortion,” see 47 U. Rich. L. Rev. 425 (2012).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 10, 30.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Purpose of statute. —

    The intent of the wrongful death statute is not to accumulate an estate for the decedent but to compensate for a loss suffered by those entitled to recover. Cassady v. Martin, 220 Va. 1093 , 266 S.E.2d 104, 1980 Va. LEXIS 205 (1980).

    The object of the wrongful death statute is to compensate these beneficiaries for their loss occasioned by the decedent’s death. The words “damage” and “loss” clearly indicate a damage and loss sustained by someone, and the loss means the loss to the statutory beneficiary in this case. Cassady v. Martin, 220 Va. 1093 , 266 S.E.2d 104, 1980 Va. LEXIS 205 (1980).

    This section is not penal or exemplary but remedial. Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358, 1980 U.S. Dist. LEXIS 11778 (E.D. Va. 1980).

    And being remedial, this statute is construed broadly. Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358, 1980 U.S. Dist. LEXIS 11778 (E.D. Va. 1980).

    Punitive damages not awarded if offender is dead. —

    Where the offender is dead at the time of trial, punitive or exemplary damages may not be awarded. The purpose of punitive damages is to punish the offender, not to compensate the victim. Tarbrake v. Sharp, 894 F. Supp. 270, 1995 U.S. Dist. LEXIS 11375 (E.D. Va. 1995).

    Where the alleged offender and the plaintiff were both killed in an automobile accident, an award of punitive damages will not serve its intended purpose of punishing the tortfeasor. Tarbrake v. Sharp, 894 F. Supp. 270, 1995 U.S. Dist. LEXIS 11375 (E.D. Va. 1995).

    Sections 8.01-21 , 8.01-25 , 8.01-50 , and 8.01-56 compared. —

    The requirements of the survival and wrongful death statutes, §§ 8.01-25 , 8.01-50 and 8.01-56 , apply when the death occurs before a final verdict, whereas § 8.01-21 applies where the death occurs after the verdict. Boyd v. Bulala, 647 F. Supp. 781, 1986 U.S. Dist. LEXIS 18099 (W.D. Va. 1986), amended, 678 F. Supp. 612, 1988 U.S. Dist. LEXIS 1186 (W.D. Va. 1988), aff'd in part and rev'd in part, 877 F.2d 1191, 1989 U.S. App. LEXIS 8364 (4th Cir. 1989); Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670, 6 Va. Law Rep. 1399, 1990 Va. LEXIS 44 (1990).

    Sections were enacted to extend application of this section. —

    Sections 8.01-25 and 8.01-56 are not in conflict with § 8.01-21 . They were enacted to extend the application of this section, the wrongful death statute, those situations not covered by the original Lord Campbell’s Act, in which a plaintiff who has filed an action for personal injuries, dies of those injuries before a verdict is returned. It was unnecessary at common law to amend, revive, or convert the action of the party who survived the return of a verdict, and it is equally unnecessary under the present statutory scheme. Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670, 6 Va. Law Rep. 1399, 1990 Va. LEXIS 44 (1990).

    Unborn child is not a “person” within the meaning of the wrongful death statute. Modaber v. Kelley, 232 Va. 60 , 348 S.E.2d 233, 3 Va. Law Rep. 510, 1986 Va. LEXIS 228 (1986).

    Negligence in womb when child born alive and later dies. —

    An action for a child’s wrongful death could be maintained against a tortfeasor whose negligence occurred when the decedent was in the mother’s womb, where the child was born alive but died the same evening, and its premature delivery and death were proximately caused by the tortfeasor’s negligence. Kalafut v. Gruver, 239 Va. 278 , 389 S.E.2d 681, 6 Va. Law Rep. 1474, 1990 Va. LEXIS 52 (1990).

    Debtor’s right to proceeds of wrongful death action is a property right; as a property right, it is subject to creditor process, and is not exemptable from the debtor’s estate. In re Tignor, 21 Bankr. 219, 1982 Bankr. LEXIS 3862 (Bankr. E.D. Va. 1982), aff'd in part, vacated in part, 729 F.2d 977, 1984 U.S. App. LEXIS 24480 (4th Cir. 1984).

    Decedent’s suicide barred recovery for wrongful death action by personal representative. —

    That the decedent did not have a full appreciation of the injury she would incur from her actions was of no consequence; decedent’s participation in an unlawful and immoral act by committing suicide barred recovery for wrongful death by her personal representative. Hill v. Nicodemus, 755 F. Supp. 692, 1991 U.S. Dist. LEXIS 1479 (W.D. Va. 1991), aff'd, 979 F.2d 987, 1992 U.S. App. LEXIS 30063 (4th Cir. 1992).

    Failure to shock fair-minded persons. —

    Assistant director was entitled to summary judgment on the gross negligence claim because the mother fell far short of creating a triable issue as to whether the director’s actions, or alleged lack thereof, would shock fair-minded persons; the mother failed to show sufficient evidence that the director was deliberately indifferent to or tacitly authorized widespread abuses of patient supervision. Wilkins v. Montgomery, 751 F.3d 214, 2014 U.S. App. LEXIS 8412 (4th Cir. 2014).

    Action fails where officers acted objectively reasonably. —

    Survivor’s wrongful death action failed where a decedent’s sister could not have proved negligent, intentional, or reckless conduct because the court previously found that police officers did not falsely arrest the decedent or use excessive force against him, but that they acted objectively reasonably. Waller v. City of Danville, No. 4:03CV00039, 2005 U.S. Dist. LEXIS 34584 (W.D. Va. Dec. 12, 2005), aff'd in part and rev'd in part, 212 Fed. Appx. 162, 2006 U.S. App. LEXIS 30799 (4th Cir. 2006).

    Tolling provision of the Virginia Medical Malpractice Act, former § 8.01-581.9 , which tolled the statute of limitations for 120 days from the giving of notice of 60 days following issuance of an opinion by the medical review panel, applied to the two year limitations contained in the Virginia Wrongful Death Act, this section and subsection B of § 8.01-244 . Wertz v. Grubbs, 245 Va. 67 , 425 S.E.2d 500, 9 Va. Law Rep. 750, 1993 Va. LEXIS 17 (1993).

    Accrual when injury known and not when injury would cause death. —

    Deceased’s claim for the personal injury that allegedly caused her death accrued April 8, 1984, when she wrote in her notes that “on June 1 ’83, I had a physical . . . . In retrospect, a mammogram should have been ordered because of previous breast biopsies, family history, and post-menopausal age 59,” even though she did not know at that time she was going to die; when she died on April 9, 1986, the two-year statute of limitations of Federal Tort Claims Act had run on any claim based on negligence in failing to make a timely diagnosis, and thus, wrongful death action was properly dismissed as time-barred. Miller v. United States, 932 F.2d 301, 1991 U.S. App. LEXIS 3517 (4th Cir. 1991).

    Statute of limitations was not tolled by continuous treatment theory. —

    In action for wrongful death due to medical malpractice by government doctors in failing to order a mammogram under Federal Tort Claims Act, 28 U.S.C. § 1346, statute of limitation on action was not tolled by under continuous treatment theory since treatment received after deceased discovered that she should have been ordered to have a mammogram had nothing to do with the ordering of a mammogram, and the doctors who administered such treatment were not acting under the advice or direction of the doctor who failed to order the mammogram. Miller v. United States, 932 F.2d 301, 1991 U.S. App. LEXIS 3517 (4th Cir. 1991).

    Sovereign immunity as a defense. —

    Court declined to dismiss, on grounds of sovereign immunity, a medical malpractice claim and wrongful death claim against a prison doctor, because the parties had submitted very little information as to the nature of the employment relationship between the prison doctor and the Commonwealth of Virginia. Simmons v. Johnson, No. 7:05CV00053, 2005 U.S. Dist. LEXIS 24257 (W.D. Va. Oct. 20, 2005), transferred, No. 7:05CV00053, 2005 U.S. Dist. LEXIS 29546 (W.D. Va. Nov. 22, 2005).

    Applicability of other jurisdiction’s wrongful death statute. —

    Doctrine of lex loci delicti was applicable to substantive issues in action filed in Virginia as a result of an airplane crash in Maryland and because there was a dispute regarding wrongful death statutes which was a substantive issue because Maryland’s wrongful death statute limits the recovery of parents for the death of an adult child to pecuniary loss, while Virginia’s wrongful death statute contains no such limitation, Maryland law was therefore applicable. Spring v. United States, 833 F. Supp. 575, 1993 U.S. Dist. LEXIS 14949 (E.D. Va. 1993).

    No election of remedy. —

    Circuit court erred in granting the motions to dismiss on the grounds that plaintiff elected a remedy when he settled the Kentucky personal injury action against the Kentucky medical providers, and that plaintiff’s wrongful death action against the Virginia medical providers was barred by this statute because there was no language in this statute that would prohibit the filing of a wrongful death action in Virginia based on the settlement of a personal injury claim in another state; and Kentucky law allowed the filing of a personal injury claim in addition to a wrongful death claim for the same injury. Green v. Diagnostic Imaging Assocs., P.C., 299 Va. 1 , 843 S.E.2d 371, 2020 Va. LEXIS 61 (2020).

    Inclusion in court order. —

    Nothing in the language of the Wrongful Death Act, §§ 8.01-50 through 8.01-56 , precludes the inclusion in a court’s order of the affirmative relief the parties have agreed to as part of their settlement of a Wrongful Death Action. Fisher v. Salute, 51 Va. App. 293, 657 S.E.2d 169, 2008 Va. App. LEXIS 99 (2008).

    B.Right of Action.

    A claim under this section is not extinguished by simultaneous assertion of a claim under 42 U.S.C. § 1983. Miltier v. Beorn, 696 F. Supp. 1086, 1988 U.S. Dist. LEXIS 11549 (E.D. Va. 1988).

    The structural relationship between § 8.01-25 and this section shows that under Virginia law, a wrongful death claim can peaceably coexist with a 42 U.S.C. § 1983 claim. Miltier v. Beorn, 696 F. Supp. 1086, 1988 U.S. Dist. LEXIS 11549 (E.D. Va. 1988).

    Uninsured motorist recovery barred by exclusive remedy clause of workmen’s compensation law. —

    Virginia law does not permit recovery by an insured’s estate under the uninsured motorist provision of the insured’s policy (paid for by the insured), where the insured was killed in a work-related motor vehicle accident and where the employer/vehicle owner and co-employee/vehicle operator both had insurance, but where the exclusive remedy clause of the Virginia Workmen’s Compensation Act bars recovery under those other policies. Aetna Cas. & Sur. Co. v. Dodson, 235 Va. 346 , 367 S.E.2d 505, 4 Va. Law Rep. 2530, 1988 Va. LEXIS 47 (1988).

    A wrongful death action is a right of action to enforce a cause of action, both created by statute in derogation of the common law. Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318, 1986 Va. LEXIS 184 (1986).

    Section does not create new cause of action. —

    This section does not create a new cause of action, but only a right of action in a personal representative to enforce the decedent’s claim for any personal injury that caused death; for this reason, a wrongful death action is necessarily time-barred, if at the time of the decedent’s death, her personal injury claim based on the tortious conduct that ultimately caused death is already time-barred. Miller v. United States, 932 F.2d 301, 1991 U.S. App. LEXIS 3517 (4th Cir. 1991).

    This section confers on the decedent’s personal representative a new and original right of action the object of which is to compensate the beneficiaries for their loss. In re Tignor, 21 Bankr. 219, 1982 Bankr. LEXIS 3862 (Bankr. E.D. Va. 1982), aff'd in part, vacated in part, 729 F.2d 977, 1984 U.S. App. LEXIS 24480 (4th Cir. 1984).

    Subsection B vests the right of action in the decedent’s personal representative. The right of action, however, is not a right to enforce a cause of action personal to the personal representative. As the party-plaintiff, he is merely a surrogate for the beneficiaries of the cause of action named in § 8.01-53 . Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318, 1986 Va. LEXIS 184 (1986).

    Sole surviving co-administrator may bring wrongful death action. —

    Sole surviving co-administrator of an intestate decedent’s estate was entitled to maintain a wrongful death action because, under the doctrine of survivorship, the co-administrator, as the sole remaining co-administrator, had the authority to maintain the wrongful death action. Bartee v. Vitocruz, 288 Va. 106 , 758 S.E.2d 549, 2014 Va. LEXIS 95 (2014).

    Choice of recovery theory in malpractice action. —

    Although the administrators and the health care provider agreed that the administrators filing a medical malpractice action against the health care providers had to elect between recovering under their survival action claim pursuant to § 8.01-25 and wrongful death claim under § 8.01-50 , which position also was supported under § 8.01-56 , the administrators were entitled to present their claim to the jury and have the jury decide the issue of causation before the administrators had to make that election. As a result, the administrators could recover monetary damages awarded by the jury involving the survival act claim, especially since the verdict awarding no damages on the wrongful death claim understood it could not award damages under both theories. Centra Health, Inc. v. Mullins, 277 Va. 59 , 670 S.E.2d 708, 2009 Va. LEXIS 3 (2009).

    No action for death of stillborn infant. —

    A stillborn infant is not a person within the meaning of the wrongful death statute. No action will lie for the death of a stillborn infant. Myrick v. United States, 723 F.2d 1158, 1983 U.S. App. LEXIS 14233 (4th Cir. 1983).

    Injury to an unborn child constitutes injury to the mother and she may recover for such physical injury and mental suffering associated with a stillbirth. She is not entitled, however, to damages ordinarily recoverable in a wrongful death action. For example, the mother may not recover for anticipated loss of the child’s society, companionship, comfort, or guidance. She may not be compensated for an expected loss of income of the child or for services, protection, care, or assistance expected to be provided by the child had he lived. Modaber v. Kelley, 232 Va. 60 , 348 S.E.2d 233, 3 Va. Law Rep. 510, 1986 Va. LEXIS 228 (1986).

    Recovery barred by exclusivity provision in Workers’ Compensation Law claim. —

    Had a widow’s husband survived his work-related accident, he could not have sued his employer or its subcontractors due to workers’ compensation exclusivity under subsection A of § 65.2-307 ; therefore, pursuant to subsection A of § 8.01-50 , the widow could not maintain a wrongful death action against them. Giordano v. McBar Indus., 284 Va. 259 , 729 S.E.2d 130, 2012 Va. LEXIS 138 (2012).

    Intoxication, voluntarily induced, is not the type of physical incapacity which will excuse contributory negligence via application of the last clear chance doctrine, when such conduct does not otherwise excuse fault; therefore, plaintiff, whose decedent was guilty of contributory negligence as a matter of law in lying unconscious or asleep in the middle of interstate due to his voluntary intoxication, was not entitled to rely on the last clear chance doctrine as a basis for recovery against defendant truck driver. Pack v. Doe, 236 Va. 323 , 374 S.E.2d 22, 5 Va. Law Rep. 928, 1988 Va. LEXIS 163 (1988).

    C.Action by Personal Representative.

    Administratrix may bring action under 42 U.S.C. § 1983. —

    A cause of action under 42 U.S.C. § 1983, alleging that actions by defendants which resulted in decedent’s death violated the decedent’s civil rights, survived decedent’s death, such that a duly qualified administratrix was entitled to pursue the decedent’s claims against defendants. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345, 1981 U.S. Dist. LEXIS 15128 (E.D. Va. 1981).

    And damages are recoverable for deprivation of decedent’s civil rights. —

    A decedent’s claims under 42 U.S.C. § 1983, based on violations of his civil rights which caused his death, survive him, and his duly qualified administratrix may be awarded compensatory and punitive damages for the deprivation if she succeeds on the merits of the case, since allowing the administratrix to obtain compensation only for whatever loss was suffered by statutory beneficiaries under the Virginia wrongful death statute and excluding any punitive award would be inconsistent with the compensatory and deterrent policies behind 42 U.S.C. § 1983. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345, 1981 U.S. Dist. LEXIS 15128 (E.D. Va. 1981).

    Surviving spouse not qualified as personal representative. —

    When a surviving wife was not qualified as a personal representative in any state when the wife filed a wrongful death suit in Virginia under § 26-59 and subsection B of § 8.01-50 , the wife lacked standing to maintain the action; therefore, the statute of limitations was not tolled by subsection B of § 8.01-244 and the action was properly dismissed. Fowler v. Winchester Med. Ctr., Inc., 266 Va. 131 , 580 S.E.2d 816, 2003 Va. LEXIS 68 (2003).

    As a decedent’s widow had not qualified as the administratrix of his estate when she filed a wrongful death suit, the action was nullity; therefore, she was not entitled to a nonsuit under § 8.01-380 . Johnston Mem. Hosp. v. Bazemore, 277 Va. 308 , 672 S.E.2d 858, 2009 Va. LEXIS 32 (2009).

    Estate via personal representative is proper plaintiff. —

    Estate of a U.S. AID worker who was killed in the 1983 U.S. Embassy bombing in Beirut, Lebanon, was the proper plaintiff to bring a wrongful-death action against defendants, the Islamic Republic of Iran and its Ministry of Intelligence and Security, under Virginia law. Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 2005 U.S. Dist. LEXIS 32618 (D.D.C. 2005).

    Administratrix proper party. —

    Where an administratrix sued an assisted living facility under the Virginia Death by Wrongful Act statute, § 8.01-50 , alleging that the facility’s negligence caused her mother’s injury and death, the estate was not bound by an arbitration clause that was in a residency agreement, of which the mother was unaware. Although the administratrix signed her mother’s name to the agreement, agency was not established because she did not consent to her daughter’s action and there was no legal documentation granting the daughter power of attorney or authority to bind the mother to all of the agreement’s elements. Giordano v. Atria Assisted Living, Va. Beach, LLC, 429 F. Supp. 2d 732, 2006 U.S. Dist. LEXIS 24451 (E.D. Va. 2006).

    Sole appointment to bring wrongful death action does not confer standing to bring survivor action. —

    Estate administrator solely appointed to bring a wrongful death action under § 8.01-50 lacked standing to assert survival claims on behalf of the estate, although she may not have received the qualification authority that she intended, because the responsibility for the mistake was with the administrator and not with the clerk. Antisdel v. Ashby, 279 Va. 42 , 688 S.E.2d 163, 2010 Va. LEXIS 2 (2010).

    Joinder of co-administrator. —

    Section § 8.01-5 permitted the joinder of a second co-administrator to a wrongful death action under the Virginia Wrongful Death Act, § 8.01-50 , because the first co-administrator was already a party plaintiff; the claims in the suit did not change as a result of the joinder; and the first co-administrator’s initial filing, without the second co-administrator, of the wrongful death claim tolled the statute of limitations for that claim under subsection B of § 8.01-244 . Addison v. Jurgelsky, 281 Va. 205 , 704 S.E.2d 402, 2011 Va. LEXIS 16 (2011).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Legislative history. —

    At common law the right of action to recover damages for “wrongful death” was unknown. This situation existed in Virginia until January 14, 1871, when the original act giving such a right to a personal representative was enacted. The prototype of this act is the English statute known as “Lord Campbell’s Act,” which was passed in 1846. VEPCO v. Decatur, 173 Va. 153 , 3 S.E.2d 172, 1939 Va. LEXIS 183 (1939).

    The wrongful death statutes were originally adopted by the General Assembly in 1871 and modeled after Lord Campbell’s Act passed by the English Parliament in 1846. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440, 1969 Va. LEXIS 211 (1969) (commented on in 4 U. Rich. L. Rev. 322 (1970)).

    At common law no civil action was maintainable against a person for the wrongful death of another. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440, 1969 Va. LEXIS 211 (1969) (commented on in 4 U. Rich. L. Rev. 322 (1970)).

    Purpose of statute. —

    This section and § 8.01-55 intend to withdraw from the wrongdoer the immunity from civil liability which the rule of the common law afforded him, and to provide for the recovery of such damages notwithstanding the death of the injured person. In so doing, however, it was plainly not the intention to continue or cause to survive his right of action for the injury, but to substitute for it and confer upon his personal representative a new and original right of action. Anderson v. Hygeia Hotel Co., 92 Va. 687 , 24 S.E. 269 , 1896 Va. LEXIS 31 (1896), limited, Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930); Grady v. Irvine, 254 F.2d 224, 1958 U.S. App. LEXIS 3991 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60, 1958 U.S. LEXIS 414 (1958); Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124, 1967 Va. LEXIS 174 (1967).

    The object of the statute was to give a right of action where none existed at common law, and to prevent an action from abating which would otherwise have abated, but not to allow two actions against the same defendant for the same injury. Brammer's Adm'r v. Norfolk & W. Ry., 107 Va. 206 , 57 S.E. 593 , 1907 Va. LEXIS 27 (1907).

    The primary object of this section and §§ 8.01-53 and 8.01-54 is to compensate the family of deceased and not to benefit his creditors. Withrow v. Edwards, 181 Va. 344 , 25 S.E.2d 343, 1943 Va. LEXIS 185, set aside, 181 Va. 592 , 25 S.E.2d 899, 1943 Va. LEXIS 207 (1943).

    Rules of statutory construction are not applicable to this section and §§ 8.01-51 through 8.01-56 as they are so plain and free from doubt. Porter v. VEPCO, 183 Va. 108 , 31 S.E.2d 337, 1944 Va. LEXIS 135 (1944).

    This section and §§ 8.01-51 through 8.01-56 have no extraterritorial effect. Withrow v. Edwards, 181 Va. 344 , 25 S.E.2d 343, 1943 Va. LEXIS 185, set aside, 181 Va. 592 , 25 S.E.2d 899, 1943 Va. LEXIS 207 (1943); Sherley v. Lotz, 200 Va. 173 , 104 S.E.2d 795, 1958 Va. LEXIS 173 (1958).

    Recoveries under this article and § 8.01-25 distinguished. —

    The limit of recovery in an action under this article is different from that in the action preserved by § 8.01-25 . In one, the amount of the recovery is limited by statute, is for the benefit of certain designated beneficiaries, and is free from debts and liabilities. In the other, the limit is the amount of damages that can be proved, is an asset of the decedent’s estate, and is subject to the payment of his debts. Bagley v. Weaver, 211 Va. 779 , 180 S.E.2d 686, 1971 Va. LEXIS 265 (1971).

    For Fourth Circuit case, arising under North Carolina law, holding that the citizenship of the beneficiaries, rather than that of the administrator, is controlling for diversity purposes, see Miller v. Perry, 456 F.2d 63, 1972 U.S. App. LEXIS 11370 (4th Cir. 1972).

    B.Right of Action.
    1.In General.

    Requirements for maintenance of wrongful death action. —

    Since the wrongful death act was adopted in Virginia nearly a century ago, it has required for maintenance of a wrongful death action (1) the death of a “person” caused by a wrongful act, neglect, or default, etc., and (2) that the act, neglect or default be “such as would, if death had not ensued, have entitled the party injured to maintain an action” for personal injuries. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440, 1969 Va. LEXIS 211 (1969) (commented on in 4 U. Rich. L. Rev. 322 (1970)).

    The right of action for damages for personal injuries, including punitive damages, if any, expires upon the death of the injured person. The death by wrongful act statute does not cause to survive this right of action, but it creates in the decedent’s personal representative a new right of action to compensate decedent’s statutory beneficiaries for their loss. Its purpose was not to punish the wrongdoer. Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124, 1967 Va. LEXIS 174 (1967).

    “Cause of action” and “right of action” distinguished. —

    The Supreme Court of Virginia construes its wrongful death statute as creating no new “cause of action” but a “right of action” where no right before existed. The “cause of action” is said to be complete and accrued the moment the tort is committed, but the “right of action” for wrongful death does not arise during the continued life of the injured person, nor does the injured person’s “right of action” for personal injury survive his death, if death results from the injury. Grady v. Irvine, 254 F.2d 224, 1958 U.S. App. LEXIS 3991 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60, 1958 U.S. LEXIS 414 (1958).

    Cause of action the same regardless of nature of right. —

    Whether the right of action given the personal representative be regarded as a survival of the right of action of his decedent, as a revival of the right, as a substituted right, or as a new right, the cause of action is the same, that is, the wrongful injury to the decedent, the wrong which entitled him to maintain an action, if death had not ensued. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216, 1968 U.S. Dist. LEXIS 7986 (E.D. Va. 1968).

    But the right of action is dependent upon right of deceased. —

    Under the statute the cause of action of the injured party, while alive, is the same cause of action that passes to the personal representative, and the right of the personal representative to recover for the death of his decedent stands upon no higher ground than that occupied by the injured party while living. The statute authorizes an action for wrongful death upon the condition that the facts are such that the deceased might have maintained the action had he lived, for the injury resulting from the same act or omission. VEPCO v. Decatur, 173 Va. 153 , 3 S.E.2d 172, 1939 Va. LEXIS 183 (1939).

    And the right of action must exist at decedent’s death. —

    Where a statute in effect gives a remedy to recover damages where the death of a person is caused by the negligent or wrongful act of another, such remedy depends upon the existence in the decedent, at the time of death, of a right of action to recover damages for such injury. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216, 1968 U.S. Dist. LEXIS 7986 (E.D. Va. 1968).

    Where the action for death is under a survival statute or is dependent on the existence of a cause of action in favor of decedent at the time of his death, the action is barred if at the time of death the applicable statute had run against decedent’s right of action. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216, 1968 U.S. Dist. LEXIS 7986 (E.D. Va. 1968).

    If the right of action of the injured person has expired at the date of his death, there is no right of action left which the personal representative can exercise. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216, 1968 U.S. Dist. LEXIS 7986 (E.D. Va. 1968).

    Section continues, transmits or substitutes right of action of deceased. —

    While this section, strictly speaking, may not create a new cause of action, it continues, transmits or substitutes the right, with certain limitations stated in the cognate statutes, to bring the action which decedent had at the time of his death. Sherley v. Lotz, 200 Va. 173 , 104 S.E.2d 795, 1958 Va. LEXIS 173 (1958); Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440, 1969 Va. LEXIS 211 (1969) (commented on in 4 U. Rich. L. Rev. 322 (1970)).

    This section creates no new cause of action, but simply continues, transmits, or substitutes the right to sue which the decedent had until his death, the effect of which is to permit the personal representative to pick up the abated right of the deceased and prosecute it for the benefit of decedent’s beneficiary. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216, 1968 U.S. Dist. LEXIS 7986 (E.D. Va. 1968).

    Only one recovery can be had. —

    Whether an action be brought by the injured party in his lifetime and revived after his death, or a new action be brought by the personal representative within the statutory period, as provided in the statute, only one recovery can be had, and that for the benefit of the next of kin named in the statute, where any such exists. Brammer's Adm'r v. Norfolk & W. Ry., 107 Va. 206 , 57 S.E. 593 , 1907 Va. LEXIS 27 (1907).

    This is true when action brought by decedent is revived. —

    If an action brought by the injured party in his lifetime be revived in the name of his personal representative after his death, and proceed to final judgment, it is a bar to any other action to recover damages for the same injury. Brammer's Adm'r v. Norfolk & W. Ry., 107 Va. 206 , 57 S.E. 593 , 1907 Va. LEXIS 27 (1907).

    Section has no effect on rule as to loss of minor’s services. —

    The common-law right of a personal representative or parent to recover for losses between the time of injury and the resulting death of a minor, including medical expenses and losses occasioned by his inability to attend to business during that time, is not affected by this section. Stevenson v. Ritter Lumber Co., 108 Va. 575 , 62 S.E. 351 , 1908 Va. LEXIS 70 (1908).

    Action does not abate upon death of class beneficiaries. —

    Under the wrongful death statute the cause of action is conferred upon decedent’s personal representative and does not abate upon the death of class beneficiaries. Johns v. Blue Ridge Transf. Co., 199 Va. 63 , 97 S.E.2d 723, 1957 Va. LEXIS 162 (1957).

    Infancy of beneficiary of action does not toll limitation period. —

    The statute of limitations for wrongful death actions was not tolled by reason of infancy of the beneficiary of the wrongful death action, since the infant’s disability could not prevent the timely institution of the action in view of the fact that wrongful death actions may be brought only by and in the name of the personal representative of the deceased. Beverage v. Harvey, 602 F.2d 657, 1979 U.S. App. LEXIS 12804 (4th Cir. 1979).

    Judgment binding in subsequent action in federal court. —

    A final judgment for defendant in a state wrongful death action is binding on the beneficiaries as to their individual claims for personal injuries asserted in a subsequent action against the same defendant in a federal court. Taylor v. Anderson, 303 F.2d 546, 1962 U.S. App. LEXIS 5124 (4th Cir. 1962).

    2.Conflict of Laws.

    Law of state where injury occurred governs rights under section. —

    All matters pertaining to the substantive right of recovery under this section, including the right to recover, the nature of the right, and the party in whom it is vested, are governed by the law of the state where the injury resulting in death occurred. Betts v. Southern Ry., 71 F.2d 787, 1934 U.S. App. LEXIS 3211 (4th Cir. 1934).

    Where an injury has been inflicted in a sister state the laws of that state govern as to the extent of the remedy. Dowell v. Cox, 108 Va. 460 , 62 S.E. 272 , 1908 Va. LEXIS 53 (1908).

    Where the accident occurred in Maryland, any right of action for the resulting death arises out of the law of Maryland and not out of that of Virginia. Maryland ex rel. Joynes v. Coard, 175 Va. 571 , 9 S.E.2d 454, 1940 Va. LEXIS 202 (1940).

    But the acceptance of compensation under the law of one state cannot affect the right to pursue a remedy against a third person under the wrongful death statute of another, unless there is something in the law of the latter which so provides. Betts v. Southern Ry., 71 F.2d 787, 1934 U.S. App. LEXIS 3211 (4th Cir. 1934).

    3.Who May Sue; Defenses.

    Negligent plaintiff cannot recover if he would benefit. —

    Plaintiff could not recover in an action under this section for the negligent killing of his infant son, if he proximately contributed to the accident and would benefit from a recovery. Ratcliffe v. McDonald's Adm'r, 123 Va. 781 , 97 S.E. 307 , 1918 Va. LEXIS 66 (1918)See Richmond, F. & P.R.R. v. Martin's Adm'r, 102 Va. 201 , 45 S.E. 894 , 1903 Va. LEXIS 122 (1903), limited, Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930).

    But contributory negligence of one party does not bar whole recovery. City of Danville v. Howard, 156 Va. 32 , 157 S.E. 733 , 1931 Va. LEXIS 176 (1931).

    A child en ventre sa mere cannot maintain a common-law action for personal injuries. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440, 1969 Va. LEXIS 211 (1969) (commented on in 4 U. Rich. L. Rev. 322 (1970)).

    No action for death of stillborn child. —

    The Virginia wrongful death statute as written does not provide an action for the wrongful death of a stillborn child. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440, 1969 Va. LEXIS 211 (1969) (commented on in 4 U. Rich. L. Rev. 322 (1970)).

    Interspousal immunity lost at death. —

    Reason for interspousal immunity is to foster a harmonious and conjugal relationship. Obviously, the reason for the rule is lost upon the death of one of the parties for there is no longer a marriage to be saved or a union to be preserved. Korman v. Carpenter, 216 Va. 86 , 216 S.E.2d 195, 1975 Va. LEXIS 253 (1975) (commented on in 4 U. Rich. L. Rev. 322 (1976)).

    Action against surviving spouse. —

    An action for wrongful death may be maintained, predicated upon injuries to one spouse during marriage arising out of a wrongful act by the other spouse, when such an act results in the termination of the marriage by death, and when the deceased spouse is survived by no living child or grandchild. Korman v. Carpenter, 216 Va. 86 , 216 S.E.2d 195, 1975 Va. LEXIS 253 (1975) (commented on in 4 U. Rich. L. Rev. 322 (1976)).

    This section affords a deceased wife’s personal representative no right of action unless the right existed immediately before her death. Surratt v. Thompson, 212 Va. 191 , 183 S.E.2d 200, 1971 Va. LEXIS 327 (1971).

    Resident alien friends are entitled to the benefits and remedies afforded by this section. Hence, a resident alien widow, residing in another state, may maintain on behalf of herself and children an action for the wrongful death of her husband. Pocahontas Collieries Co. v. Rukas, 104 Va. 278 , 51 S.E. 449 , 1905 Va. LEXIS 97 (1905).

    The action for death by the wrongful act or neglect of another given by this section may be maintained for the benefit of alien relatives resident in a foreign country, although they are not expressly named in the statute. Lowmoor Iron Co. v. La Bianca, 106 Va. 83 , 55 S.E. 532 , 1906 Va. LEXIS 110 (1906).

    Consent which would bar recovery by decedent bars recovery under this section. —

    If the consent of decedent to the commission of an immoral or illegal act would have been a bar to decedent’s right to recover had she survived, such consent bars recovery in an action by her administrator for her wrongful death under the provisions of this section. Miller v. Bennett, 190 Va. 162 , 56 S.E.2d 217, 1949 Va. LEXIS 271 (1949).

    Consent of decedent to illegal abortion. —

    Consent of a mature married woman to an attempt to produce an illegal abortion, resulting in death, bars recovery under this section in an action by her administrator against the party attempting to procure the abortion. Miller v. Bennett, 190 Va. 162 , 56 S.E.2d 217, 1949 Va. LEXIS 271 (1949).

    Spouse who deserted decedent and lived in adultery is not barred. —

    There is no provision in our statutes barring the right of a spouse who has deserted the decedent and lived in adultery from sharing in a recovery for wrongful death; therefore he or she is not so barred. Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629, 1955 Va. LEXIS 202 (1955).

    4.Who May Be Sued.

    Committee of convict can be sued. —

    A right of action, conferred by this section, may be brought against the committee of a convict. Merchant's Adm'r v. Shry, 116 Va. 437 , 82 S.E. 106 , 1914 Va. LEXIS 49 (1914).

    5.Evidence.

    Measure of damages. —

    In an action for death by wrongful act, the measure of damages is the pecuniary loss, if any, sustained by the beneficiaries; compensation for their loss of the decedent’s care, attention and society, and for their solace and comfort for the sorrow and suffering occasioned by the death of a decedent. Evidence regarding the magnitude and seriousness of the injuries of a decedent, the extent of the mutilation of his body, and other circumstances likely to inflame or prejudice a jury, or invite its sympathy, should not be admitted. Where, as in this case, evidence of this type is admissible here for the reason that it has relevancy in establishing the identity of the driver, in the accident resulting in death, it should be restricted to a showing that the decedent’s injuries were such as could have resulted in the deposit of hair, blood and flesh found in the vehicle and testified to by witnesses. Breeding v. Johnson, 208 Va. 652 , 159 S.E.2d 836, 1968 Va. LEXIS 162 (1968).

    Evidence as to widow and children of deceased. —

    In an action under the statute by the administrator of a party killed upon a railroad track against the company, the plaintiff may upon the trial, and before the jury has rendered a verdict, introduce evidence to prove that the deceased left a widow and children, and the number and ages of the children. B & O R.R. v. Sherman's Adm'r, 71 Va. (30 Gratt.) 602, 1878 Va. LEXIS 84 (1878), overruled, Hortenstein v. Virginia-Carolina Ry. Co., 102 Va. 914 , 47 S.E. 996 , 1904 Va. LEXIS 55 (1904).

    Evidence of the physical condition of one or more of the beneficiaries is immaterial to the question of liability or the quantum of the damages. Crawford v. Hite, 176 Va. 69 , 10 S.E.2d 561, 1940 Va. LEXIS 234 (1940).

    Evidence that deceased was heavy drinker and that family relations were troubled. —

    Evidence having been placed before the jury by counsel for the administratrix tending to show deceased to have been a man of sober habits and a devoted and hardworking father, it was error to refuse cross-examination to show he was a heavy drinker and that the family relations were troubled. Basham v. Terry, 199 Va. 817 , 102 S.E.2d 285, 1958 Va. LEXIS 129 (1958) (commented on in 4 U. Rich. L. Rev. 322 (1959)).

    Warrants sworn out against deceased by wife and daughter. —

    Copies of warrants of arrest sworn out against decedent by his wife and daughter four and five years before his death would have been admissible in mitigation of damages allowable for loss of “care, attention and society” by reason of his death. Such evidence would not have been too remote if so offered in proper form. But the offer of testimony as to the warrants was properly excluded, this not being the best evidence. Basham v. Terry, 199 Va. 817 , 102 S.E.2d 285, 1958 Va. LEXIS 129 (1958) (commented on in 4 U. Rich. L. Rev. 322 (1959)).

    Moral delinquencies. —

    Evidence offered by the defendants of young girl’s moral delinquencies held not relevant on the amount of damages which the jury might award to her parents and other members of her family for the loss of her society and for the sorrow, suffering and mental anguish occasioned to them by her death. Gamble v. Hill, 208 Va. 171 , 156 S.E.2d 888, 1967 Va. LEXIS 202 (1967).

    C.Actions Against Ships.

    Right enforced in jurisdiction where injury occurred. —

    The lien created by this section, which provides that a ship or vessel, which would have been liable if death had not ensued, shall be liable to an action for damages or to a libel in rem, may be enforced by a suit in rem in a court of admiralty, where the injury occurred at a place within the maritime jurisdiction. The Anglo-Patagonian, 235 F. 92, 1916 U.S. App. LEXIS 2171 (4th Cir.), cert. denied, 242 U.S. 636, 37 S. Ct. 19, 61 L. Ed. 539, 1916 U.S. LEXIS 1610 (1916).

    Fact that pilot is in charge does not absolve ship for liability. —

    At the time of the collision for which she was in fault, the fact that a ship was in charge of a compulsory pilot does not absolve her from liability for the death of persons caused by the collision under this section. Indra Line, Ltd. v. Palmetto Phosphate Co., 239 F. 94, 1916 U.S. App. LEXIS 2559 (4th Cir. 1916).

    The remedy in rem is in the nature of an admiralty lien and can be enforced in a federal court which has admiralty jurisdiction, and only in a federal court. Continental Cas. Co. v. The Benny Skou, 200 F.2d 246, 1952 U.S. App. LEXIS 3881 (4th Cir. 1952), cert. denied, 345 U.S. 992, 73 S. Ct. 1129, 97 L. Ed. 1400, 1953 U.S. LEXIS 1928 (1953).

    The Virginia statute creates a lien on the ship in a case of wrongful death. Lewis v. Jones, 27 F.2d 72, 1928 U.S. App. LEXIS 3334 (4th Cir.), cert. denied, 278 U.S. 634, 49 S. Ct. 32, 73 L. Ed. 551, 1928 U.S. LEXIS 584 (1928).

    This section authorizes recovery for the death of a longshoreman under the substantive principles of the maritime law. Rederi A/B Dalen v. Maher, 303 F.2d 565, 1962 U.S. App. LEXIS 5055 (4th Cir. 1962).

    Lien can be enforced in federal courts. —

    This section, giving a right of suit in rem against a vessel wrongfully or negligently causing the death of any person, creates a lien, and may be enforced by a libel in rem in the federal courts, when the accident occurs in their maritime jurisdiction. The Glendale v. Evich, 81 F. 633, 1897 U.S. App. LEXIS 1881 (4th Cir. 1897).

    Once the conclusion is reached that a state statute gives a lien on the ship for wrongful death, such a lien can unquestionably be enforced in a suit in admiralty. Lewis v. Jones, 27 F.2d 72, 1928 U.S. App. LEXIS 3334 (4th Cir.), cert. denied, 278 U.S. 634, 49 S. Ct. 32, 73 L. Ed. 551, 1928 U.S. LEXIS 584 (1928).

    In this section Virginia has bestowed upon admiralty a right to grant a recovery not previously possessed by admiralty. The endowment must be taken cum onere. Rights and liabilities under this section must be the same on the water as on the land. Continental Cas. Co. v. The Benny Skou, 101 F. Supp. 15, 1951 U.S. Dist. LEXIS 1960 (D. Va. 1951), aff'd, 200 F.2d 246, 1952 U.S. App. LEXIS 3881 (4th Cir. 1952).

    Contributory negligence is not absolute defense. —

    Contributory negligence is not an absolute bar to a right of recovery in an action against ships under this section. Holley v. The S.S. Manfred Stansfield, 269 F.2d 317, 1959 U.S. App. LEXIS 5077 (4th Cir.), cert. denied, 361 U.S. 883, 80 S. Ct. 154, 4 L. Ed. 2d 119, 1959 U.S. LEXIS 180 (1959) (commented on in 45 Va. L. Rev. 1222 (1959)).

    And maritime rule of comparative negligence will be applied. —

    A federal court sitting in admiralty in an action against a vessel and its owners for death of employee of a stevedore will apply the rule that contributory negligence mitigates damages. Holley v. The S.S. Manfred Stansfield, 269 F.2d 317, 1959 U.S. App. LEXIS 5077 (4th Cir.), cert. denied, 361 U.S. 883, 80 S. Ct. 154, 4 L. Ed. 2d 119, 1959 U.S. LEXIS 180 (1959) (commented on in 45 Va. L. Rev. 1222 (1959)).

    The maritime rule of comparative negligence where the injury resulting in death occurs on navigable waters of the State is unmistakably indicated in the language of this section. Holley v. The S.S. Manfred Stansfield, 269 F.2d 317, 1959 U.S. App. LEXIS 5077 (4th Cir.), cert. denied, 361 U.S. 883, 80 S. Ct. 154, 4 L. Ed. 2d 119, 1959 U.S. LEXIS 180 (1959) (commented on in 45 Va. L. Rev. 1222 (1959)).

    Recovery may not be used to reimburse employer or compensation carrier. —

    The provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A., § 901 et seq., do not amend the wrongful death statute of Virginia to the extent that the share of a beneficiary under the death statute may be used to reimburse the employer or compensation carrier for death benefits paid to a beneficiary under the Longshoremen’s and Harbor Workers’ Compensation Act who is not a recipient beneficiary under the death statute. Holley v. The Manfred Stansfield, 186 F. Supp. 805, 1960 U.S. Dist. LEXIS 4249 (E.D. Va. 1960).

    Jones Act and Death on the High Seas Act. —

    A state wrongful death statute would not be applicable to a situation where the right to maintain an action has been expressly granted under the Jones Act and the Death on the High Seas Act. McPherson v. Steamship S. African Pioneer, 321 F. Supp. 42, 1971 U.S. Dist. LEXIS 15128 (E.D. Va. 1971).

    D.Action by Personal Representative.

    The personal representative is the only party that can maintain an action under this section. Goff v. Norfolk & W.R.R., 36 F. 299, 1888 U.S. App. LEXIS 2615 (C.C.D. Va. 1888).

    The administrator sues, not for the benefit of the estate, but primarily and substantially as trustee for certain particular kindred of the deceased. Patterson v. Anderson, 194 Va. 557 , 74 S.E.2d 195, 1953 Va. LEXIS 118, cert. denied, 345 U.S. 965, 73 S. Ct. 952, 97 L. Ed. 1384, 1953 U.S. LEXIS 2066 (1953).

    The personal representative of the deceased sues primarily as trustee for certain statutory beneficiaries and not for the general benefit of the decedent’s estate. Conrad v. Thompson, 195 Va. 714 , 80 S.E.2d 561, 1954 Va. LEXIS 150 (1954); Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124, 1967 Va. LEXIS 174 (1967).

    Foreign personal representative cannot maintain action in Virginia. —

    Since the 1950 amendment of § 26-59 a personal representative, who is not a resident of Virginia and who has not qualified or been appointed as such in the State, cannot maintain an action in a United States district court sitting in Virginia, under the Virginia Statute of Death by Wrongful Act. Holt v. Middlebrook, 214 F.2d 187, 1954 U.S. App. LEXIS 4231 (4th Cir. 1954).

    Virginia requires that the personal representative who prosecutes an action under its wrongful death act must be a resident of that State. This requirement has been held to be binding in the federal courts. Grady v. Irvine, 254 F.2d 224, 1958 U.S. App. LEXIS 3991 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60, 1958 U.S. LEXIS 414 (1958).

    This section and § 26-59 prohibit an Ohio administrator from instituting an action for wrongful death in Virginia. Goranson v. Capital Airlines, 221 F. Supp. 820, 1963 U.S. Dist. LEXIS 6731 (E.D. Va. 1963), cert. denied, Goranson v. Capital Airlines, Inc., 382 U.S. 984, 86 S. Ct. 560, 15 L. Ed. 2d 473, 1966 U.S. LEXIS 2623 (1966).

    Thus action against citizen of Virginia may be maintained only in state courts. —

    At present an action for wrongful death against a citizen of Virginia may be maintained only in the state courts, and this situation will continue unless the General Assembly of Virginia should choose to modify the effect of the 1950 amendment to § 26-59. Rodgers v. Irvine, 161 F. Supp. 784, 1957 U.S. Dist. LEXIS 2341 (D. Va. 1957), aff'd, 254 F.2d 224, 1958 U.S. App. LEXIS 3991 (4th Cir. 1958).

    But out-of-state administrator can maintain action in another state. —

    See Kaufmann v. Service Trucking Co., 139 F. Supp. 1, 1956 U.S. Dist. LEXIS 3565 (D. Md. 1956) (holding that a domiciliary administrator appointed in Illinois could maintain an action in Maryland under the Virginia statute without qualifying in Virginia.).

    If administrator and defendant of different states sufficient for federal jurisdiction. —

    Where the administrator and defendant are citizens of different states, the action may be brought in the federal courts, though the deceased was a citizen of the same state with defendant, where his widow and children still reside. In such action the real beneficiaries need not be named in the declaration. Harper v. Norfolk & W.R.R., 36 F. 102, 1887 U.S. App. LEXIS 2974 (C.C.D. Va. 1887).

    The fact that a citizen of another state is selected as administrator for the purpose of conferring on the United States circuit court jurisdiction of an action to be brought by him, does not defeat that jurisdiction. Goff v. Norfolk & W.R.R., 36 F. 299, 1888 U.S. App. LEXIS 2615 (C.C.D. Va. 1888).

    CIRCUIT COURT OPINIONS

    Construction of statute. —

    Demurrer challenging § 8.01-50 as contrary to Virginia law was denied where the statutory language was nearly identical to case law language, the General Assembly had the authority to change the common law, and the case law interpreting a predecessor statute was not common law. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

    Argument that only the natural mother had a right of action under subsections B and C of § 8.01-50 was rejected as contrary to the statutory language. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

    Subsection B of § 8.01-50 was not constitutional where recognizing a fetal death cause of action against any tortfeasor other than the natural mother was an exercise of the state’s interest in protecting the unborn. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

    No new cause of action. —

    This section creates no new cause of action, but continues, transmits, or substitutes the right to sue which the decedent has until his death, permitting a personal representative to pick up the right of the deceased to sue for the benefit of the decedent’s beneficiary. Gray v. Rhoads, 55 Va. Cir. 362, 2001 Va. Cir. LEXIS 300 (Charlottesville July 2, 2001).

    Virginia’s wrongful death statute does not create a new cause of action, but only a right of action in a personal representative to enforce the decedent’s claim for any personal injury that caused death. As set forth in this section, whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and to recover damages in respect thereof. Clearly, the conduct of the wrongdoer toward the decedent (not the beneficiaries) dictates whether recovery may be had. Defenses, such as contributory negligence, would be available to the purported tortfeasor. Thus the decedent by his very conduct can affect the possibility of recovery under the wrongful death scheme. Culler v. Johnson, 98 Va. Cir. 470, 2014 Va. Cir. LEXIS 385 (Roanoke Nov. 21, 2014).

    Standing. —

    Administratrix had standing under § 8.01-13 to bring an action against insurers for their failure to defend under an assignment of rights obtained in a consent agreement with a defendant tortfeasor in a wrongful death action on behalf of five estates’ beneficiaries; the administratrix was the proper person to bring the wrongful death actions under § 8.01-50 , and she acted as the surrogate for the beneficiaries of the cause of action named in § 8.01-53 . Beckner v. Twin City Fire Ins. Co., 58 Va. Cir. 544, 2002 Va. Cir. LEXIS 175 (Roanoke June 27, 2002).

    Where an individual lacked standing to file a wrongful death action under § 8.01-50 , the individual could not be substituted as a plaintiff under Va. Sup. Ct. R. 1:8 when he qualified as a decedent’s personal representative more than two years after the death; as a result, the action was barred by the statute of limitations in § 8.01-244 . Young v. Carter, 61 Va. Cir. 682, 2002 Va. Cir. LEXIS 437 (Franklin County Nov. 12, 2002).

    Dismissal of a complaint by the administratrix of the decedent’s estate, for lack of standing, was inappropriate because the allegations by the administratrix of the decedent’s pain and suffering did not automatically transform the wrongful death action into a survivorship action, which the administratrix did not have standing to bring. Sciortino v. Piccioni, 88 Va. Cir. 106, 2014 Va. Cir. LEXIS 71 (Norfolk Mar. 20, 2014).

    Survivors lacked standing to bring a legal malpractice suit because only a personal representative could bring the underlying wrongful death suit and a legal malpractice claim arising out of that suit. Khattab v. Epperly, 102 Va. Cir. 306, 2019 Va. Cir. LEXIS 252 (Richmond July 9, 2019).

    Potential beneficiaries. —

    In a wrongful death action, the court overruled the doctor’s demurrer, because the Wrongful Death Act permitted the distribution of damages to statutory beneficiaries of a fetus beyond the natural mother, and thus, the father, brothers, and sisters could be statutory beneficiaries. Healey v. Perfectly Female Women's Health Care, P.C., 99 Va. Cir. 357, 2018 Va. Cir. LEXIS 121 (Fairfax County July 12, 2018).

    Determination of proper venue in wrongful death action. —

    Although a husband died in a city, the wife’s wrongful death cause of action was based on a doctor’s alleged negligent medical treatment in a county; therefore, because the city court was not a permissible venue under § 8.01-262 , pursuant to § 8.01-260 , venue had to be transferred to the county court. Sarver v. Prud'Homme, 67 Va. Cir. 315, 2005 Va. Cir. LEXIS 51 (Roanoke May 2, 2005).

    Cause of action stated. —

    Defendant officers’ demurrer to count IV was overruled to the extent that plaintiff claimed damages for conspiracy occurring after decedent’s death because plaintiff’s claim in count IV (which alleged that the officers conspired to cover up and conceal their unlawful conduct and racially based violation of their duties and decedent’s rights) was equivalent to a wrongful death action under § 8.01-50 et seq. Chandler v. Routin, 63 Va. Cir. 139, 2003 Va. Cir. LEXIS 347 (Norfolk Sept. 23, 2003).

    Alternative pleading with a survival action permitted. —

    Because the responses sought by a hospital from a decedent’s survivor attempted to force the survivor to proceed solely under either § 8.01-50 or 8.01-25 , which was contrary to § 8.01-281 , and improperly forced the survivor to elect his remedies, his answers to two requests for admissions were deemed sufficient. Richard Montgomery Bros. v. Rockingham Mem. Hosp., 75 Va. Cir. 85, 2008 Va. Cir. LEXIS 29 (Rockingham County Mar. 5, 2008).

    Single claim for each death. —

    Only personal representatives of estates of decedents who were killed when their cars were crushed from a dump truck as a result of a collision were entitled to make a single claim against the Virginia Property and Casualty Insurance Guaranty Association, pursuant to the provision of the Act, § 38.2-1600 et seq., for each death resulting from the accident pursuant to § 8.01-50 . MacDougall v. Hartford Ins. Group, 61 Va. Cir. 181, 2003 Va. Cir. LEXIS 24 (Fairfax County Feb. 20, 2003).

    Appointment of fiduciary required. —

    Plaintiff parents did not qualify as the personal representatives of their deceased child’s estate under subsection B of § 8.01-50 and, therefore, in their wrongful death action brought against a property management corporation, the corporation’s plea in bar was granted with prejudice since the two-year statute of limitations had expired the day after the parents brought suit, thereby preventing joinder of a personal representative, who had been appointed 10 months after the suit was filed. The court refused to apply the law of Japan, as urged by the parents, because Japanese law did not require any additional step to qualify a person to bring suit on behalf of a decedent, which directly conflicted with Virginia law requiring the appointment of a fiduciary. Yoshida v. Capital Props. Mgmt., 68 Va. Cir. 279, 2005 Va. Cir. LEXIS 124 (Fairfax County July 26, 2005).

    Administratrix lacked capacity to bring action. —

    Wrongful death action pursuant to subsection B of § 8.01-50 by administratrix of decedent, who was not qualified as the personal representative, did not toll the statute of limitations of § 8.01-244 because such action, which was not filed by one with the right capacity or standing, was a nullity. Fowler v. Winchester Med. Ctr., Inc., 59 Va. Cir. 216, 2002 Va. Cir. LEXIS 344 (Winchester July 2, 2002), aff'd, 266 Va. 131 , 580 S.E.2d 816, 2003 Va. LEXIS 68 (2003).

    Administratrix had capacity to bring action. —

    Consultant’s claim that a wrongful death suit was improperly filed by an administratrix rather than a personal representative as required by § 8.01-50 was rejected as the definition of personal representative in § 1-234 included an administrator. Rodriguez v. N. Va. Elec. Coop., 79 Va. Cir. 266, 2009 Va. Cir. LEXIS 236 (Loudoun County Sept. 14, 2009).

    Administrator lacked capacity to accept service of process. —

    Defendant’s motion to quash service of process of a motion for judgment on the ground that the administrator who accepted service of process did not have authority to do so as her qualification was pursuant to § 8.01-50 , not former § 64.1-75, was properly granted because, while the administrator intended to qualify in order to accept service of process, she did not do so, and she, not the clerk, bore the responsibility for this mistake. Thus, there was, in fact, no error or oversight to correct, as contemplated by § 8.01-428 . Blick v. Fant, 70 Va. Cir. 76, 2005 Va. Cir. LEXIS 292 (Greensville County Oct. 14, 2005).

    Administrator could not sue groups. —

    As a decedent could not initiate a personal injury suit against two groups before her death since the limitations period had passed, the administrator could not sue the groups for wrongful death under § 8.01-50 on the decedent’s behalf under § 8.01-244 ; the claims filed against two servants of the groups did not toll the limitations period as to their master. Jackson v. Vanga, 85 Va. Cir. 266, 2012 Va. Cir. LEXIS 90 (Norfolk Aug. 24, 2012).

    Dismissal based on charitable immunity. —

    Motions to dismiss by employees of a charity were granted as to a wrongful death action, filed by the administrator of an estate, because the employees were entitled to charitable immunity as employees of a charity, and the immunity applied to both simple and gross negligence. Brown v. Mills, 61 Va. Cir. 479, 2003 Va. Cir. LEXIS 47 (Portsmouth Apr. 21, 2003).

    Surviving spouse’s remarriage is generally inadmissible. —

    Defendants in a wrongful death action were precluded from mentioning a widow’s remarriage during voir dire or opening statements, because such evidence was generally inadmissible, but an absolute ruling on the use of the evidence was premature when no evidence had yet been introduced at trial; if the widow opened the door or, in defendants’ opinion, the testimony or other evidence during trial provided a basis for admitting the remarriage evidence, defendants were given leave to request its admission. Flannagan v. Drs. Cochran Eberly & Howe, P.C., 70 Va. Cir. 1, 2005 Va. Cir. LEXIS 311 (Alexandria Jan. 31, 2005).

    Contract for arbitration binding on beneficiaries. —

    Circuit court entered an order compelling arbitration of a wrongful death action because a decedent’s contract for arbitration entered into on her behalf by her attorney in fact, which bound the decedent, her assessors, legal representatives, and beneficiaries was binding on the statutory beneficiaries. Bohlen v. Capital Senior Living, Inc., 104 Va. Cir. 178, 2020 Va. Cir. LEXIS 18 (Chesapeake Jan. 31, 2020).

    Arbitration addendum. —

    In a wrongful death case, even if an arbitration addendum had been deemed to be validly executed by a signer as power-of-attorney, it nonetheless did not require arbitration and waive the constitutional right of the jury trial for the statutory beneficiaries. Stevens v. Medical Facilities of Am. XXXII, 98 Va. Cir. 376, 2018 Va. Cir. LEXIS 122 (Nelson County June 27, 2018).

    Admissibility of evidence. —

    In a wrongful death case, the court denied defendant’s motion in limine to exclude evidence of any condition of the decedent that was not the proximate cause of the decedent’s death, including the existence of decubitus ulcers, dehydration, and the use of a catheter. The essence of defendant’s motion depended on relevance, and issues of relevance could be better analyzed at trial. Wolf v. A+ Loving Care, Inc., 72 Va. Cir. 369, 2006 Va. Cir. LEXIS 272 (Roanoke County Dec. 28, 2006).

    In a wrongful death case, the court denied plaintiff’s motion in limine to exclude do-not-resuscitate orders, a surrogate directive, and a living will. Whether these were unduly prejudicial was a determination that should be made at trial. Wolf v. A+ Loving Care, Inc., 72 Va. Cir. 369, 2006 Va. Cir. LEXIS 272 (Roanoke County Dec. 28, 2006).

    § 8.01-50.1. Certification of expert witness opinion at time of service of process.

    Every motion for judgment, counter claim, or third party claim in any action pursuant to § 8.01-50 for wrongful death against a health care provider, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. This certification is not necessary if the plaintiff, in good faith, alleges in his wrongful death action a medical malpractice theory of liability where expert testimony is unnecessary because the alleged act of negligence clearly lies within the range of the jury’s common knowledge and experience.

    The certifying expert shall not be required to be an expert expected to testify at trial nor shall any defendant be entitled to discover the identity or qualifications of the certifying expert or the nature of the certifying expert’s opinions. Should the certifying expert be identified as an expert expected to testify at trial, the opinions and bases therefor shall be discoverable pursuant to Rule 4:1 of the Rules of Supreme Court of Virginia with the exception of the expert’s status as a certifying expert.

    Upon written request of any defendant, the plaintiff shall, within 10 business days after receipt of such request, provide the defendant with a certification form which affirms that the plaintiff had obtained the necessary certifying expert opinion at the time service was requested or affirms that the plaintiff did not need to obtain a certifying expert opinion. The court, upon good cause shown, may conduct an in camera review of the certifying expert opinion obtained by the plaintiff as the court may deem appropriate. If the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant, the court shall impose sanctions according to the provisions of § 8.01-271.1 and may dismiss the case with prejudice.

    History. 2005, cc. 649, 692; 2007, c. 489; 2013, cc. 65, 610.

    The 2007 amendments.

    The 2007 amendment by c. 489 inserted “or requests a defendant to accept service of process” preceding “shall be deemed” in the first sentence of the first paragraph; and inserted “or qualifications” following “identity” in the first sentence of the second paragraph.

    The 2013 amendments.

    The 2013 amendments by cc. 65 and 610 are identical, and added the second sentence of the third paragraph.

    Law Review.

    For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

    CIRCUIT COURT OPINIONS

    Certification of expert witness not obtained. —

    Parents failed to obtain a necessary certifying expert opinion as required; the acts of negligence alleged involved medical knowledge not within the range of the jury’s common knowledge and experience, so a certifying expert opinion was necessary, and as a sanction, as the parents had sufficient time to prepare an appropriate expert certification and defendants had been prejudiced, the action was dismissed with prejudice. Susko v. Toor, 91 Va. Cir. 372, 2015 Va. Cir. LEXIS 169 (Norfolk Nov. 12, 2015).

    Dismissal of a complaint that was brought by the administrator of a decedent’s estate against a senior-care facility at which the decedent was a patient was appropriate because the case was a medical malpractice case and the administrator failed to obtain an expert certification of merit. Webb v. Patrick Henry Hosp., Inc., 107 Va. Cir. 432, 2021 Va. Cir. LEXIS 57 (Newport News Mar. 30, 2021).

    Certification proper. —

    Administratrix’s counsel could reasonably believe his expert was qualified to offer an opinion about those who provided post-operative care because hospital employees preformed procedures within the expert’s field of knowledge; given the expert’s specialty and the fact that all employees discharged responsibilities about which he would appear to be qualified to testify, the employees, hospital, and medical practice failed to show he was not qualified to provide the certification. Wilder v. Children's Hosp. of the King's Daughters, 2017 Va. Cir. LEXIS 172 (Norfolk Sept. 20, 2017).

    Contents and timing of an expert opinion satisfied the statute because an administratrix’s counsel obtained the required certification letter prior to requesting service on a hospital, medical practice, and hospital employees, albeit not prior to requesting preparation of summonses; the hospital, practice, and employee did not advance any authority to support the position that receipt after the request for summonses but prior to delivery for service violated the statute. Wilder v. Children's Hosp. of the King's Daughters, 2017 Va. Cir. LEXIS 172 (Norfolk Sept. 20, 2017).

    Executor had obtained written certifications from experts opining that the medical facilities and medical providers had deviated from the applicable standard of care and that the deviation proximately caused the decedent’s alleged injuries as required by §§ 8.01-20.1 and 8.01-50.1 where a surgeon met the statutory requirements for licensure, her certification and practice in wound care at skilled nursing facilities potentially qualified her as a specialist who knew the applicable standards of care, and her experience significantly overlapped with the responsibilities of nurses, the nursing home administrator, and dietician. Clarke v. Med. Facilities of Am., Inc., 108 Va. Cir. 106, 2021 Va. Cir. LEXIS 86 (Norfolk Apr. 20, 2021).

    § 8.01-51. No action when deceased has compromised claim.

    No action shall be maintained by the personal representative of one who, after injury, has compromised for such injury and accepted satisfaction therefor previous to his death.

    History. Code 1950, § 8-635; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Death by Wrongful Act, § 7.

    CASE NOTES

    Compromise bars action. —

    If a man, having suffered a personal injury, compromises for such injury and accepts full satisfaction therefor, and afterwards dies from the effects of the injury, a question arises as to the right of his personal representative to maintain an action for death by wrongful act, neglect, or default. A former version of this section settled the question by providing that such action could not be maintained. This is the weight of authority and is supported by the better reasoning. Brammer's Adm'r v. Norfolk & W. Ry., 107 Va. 206 , 57 S.E. 593 , 1907 Va. LEXIS 27 (1907) (decided under prior law).

    § 8.01-52. Amount of damages.

    The jury or the court, as the case may be, in any such action under § 8.01-50 may award such damages as to it may seem fair and just. The verdict or judgment of the court trying the case without a jury shall include, but may not be limited to, damages for the following:

    1. Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
    2. Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;
    3. Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;
    4. Reasonable funeral expenses; and
    5. Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.

      Damages recoverable under 3, 4 and 5 above shall be specifically stated by the jury or the court, as the case may be. Damages recoverable under 3 and 4 above shall be apportioned among the creditors who rendered such services, as their respective interests may appear. Competent expert testimony shall be admissible in proving damages recoverable under 2 above.

      The court shall apportion the costs of the action as it shall deem proper.

    History. Code 1950, § 8-636.1; 1974, c. 444; 1977, cc. 460, 617; 1982, c. 441.

    REVISERS’ NOTE

    Former §§ 8-636.1 and 8-638 contain, inter alia, duplicate provisions as to beneficiaries, fail to denote when these beneficiaries are to be determined, and are unclear as to the specification of the damages. Sections 8.01-52 , 8.01-53 , and 8.01-54 amend and reorder the provisions of the former sections to present them more logically and to clarify the procedures.

    Section 8.01-52 adopts former § 8-636.1 with several changes. The section expressly recognizes that the amount of damages may be awarded by the jury or by the court if the case is tried without a jury, and damages for medical and funeral expenses are required to be specifically stated. Provisions in former § 8-636.1 defining the class and beneficiaries have been deleted and incorporated into § 8.01-53 . A provision has been added providing that competent expert testimony is admissible regarding the proof of damages for loss of income, services, etc. of the decedent.

    Cross references.

    As to disclosure of homeowners insurance and personal injury liability insurance policy limits, see § 8.01-417.01 .

    Editor’s note.

    Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the Code Commission has given effect, in § 8.01-52 as set out above, to the amendment to former § 8-636.1, corresponding to this section, in Acts 1977, c. 460. The amendment added the second sentence of the next-to-last paragraph.

    Law Review.

    For discussion of punitive damages and their possible application in automobile accident litigation, see 46 Va. L. Rev. 1036 (1960).

    For case note on the measure of damages for wrongful death of a minor child, see 18 Wash. & Lee L. Rev. 277 (1961).

    For note, “Wrongful Death Damages in Virginia,” see 12 Wm. & Mary L. Rev. 396 (1970).

    For article on damages recoverable for wrongful death, see 5 U. Rich. L. Rev. 213 (1971).

    For survey of Virginia law on domestic relations for the year 1970-1971, see 57 Va. L. Rev. 1487 (1971).

    For survey of Virginia law on torts for the year 1971-1972, see 58 Va. L. Rev. 1349 (1972).

    For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974).

    For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977).

    For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

    For a note, “The Supreme Court’s Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards,” see 86 Va. L. Rev. 1249 (2000).

    For article, “The ‘Vanishing Trial’: Arbitrating Wrongful Death,” see 53 U. Rich. L. Rev. 1339 (2019).

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Automobiles, § 114.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Construction of “fair” and “just.” —

    As used in this section, the terms “fair” and “just” are to be given broad and liberal construction. Sawyer v. United States, 465 F. Supp. 282, 1978 U.S. Dist. LEXIS 14289 (E.D. Va. 1978); Miltier v. Beorn, 696 F. Supp. 1086, 1988 U.S. Dist. LEXIS 11549 (E.D. Va. 1988).

    Purpose of damages specified. —

    The damages specified in this section as recoverable are designed to compensate the beneficiaries for the losses they suffer as a result of the decedent’s death, and not to accumulate an estate for the decedent. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345, 1981 U.S. Dist. LEXIS 15128 (E.D. Va. 1981).

    The only limit imposed on the amount of wrongful death damages is what may seem fair and just. Miltier v. Beorn, 696 F. Supp. 1086, 1988 U.S. Dist. LEXIS 11549 (E.D. Va. 1988).

    Section 8.01-25 defers to the wrongful death statute as the exclusive statement of the grievances that Virginia will recognize when a tort victim dies of her injuries. El-Meswari v. Washington Gas Light Co., 785 F.2d 483, 1986 U.S. App. LEXIS 22681 (4th Cir. 1986).

    Punitive damages provision not retroactive. —

    Allowing punitive damages in a wrongful death action constitutes a major change in both the effect and purpose of the Virginia Death by Wrongful Act statute. To retroactively apply such a significant change in the law without an explicit legislative directive would be to ignore an established rule of statutory construction as well as tampering with parties’ vested rights and incurred obligations as they existed under the then existing law. Accordingly, the 1982 amendment to this section will not be given retroactive effect. Estate of Armentrout v. International Harvester Co., 547 F. Supp. 136, 1982 U.S. Dist. LEXIS 15718 (W.D. Va. 1982).

    Punitive damages. —

    Court erred by granting a physician’s motion to strike evidence pertaining to a punitive damages claim because the jury reasonably could have determined that the physician was conscious of the risks associated with the long-term use of narcotic pain medication and the patient’s increased risk of drug abuse and addiction and that the physician consciously disregarded those risks when the physician continued to prescribe the medication to the patient while not examining the patient for signs of abuse or addiction for a significant period of time. Curtis v. Highfill, 298 Va. 499 , 840 S.E.2d 321, 2020 Va. LEXIS 38 (2020).

    Notwithstanding remedial aspects of such provision. —

    While a statute which alters procedures or supplies remedies for enforcing an existing right may be given retrospective effect, there must still be some indication that the legislature enacting the statutory change intends it be given such operation. The 1982 General Assembly has not indicated that it intended the amendment to operate retrospectively. Therefore, even if the amendment is considered remedial, the court will not apply it in cases arising prior to its effective date. Estate of Armentrout v. International Harvester Co., 547 F. Supp. 136, 1982 U.S. Dist. LEXIS 15718 (W.D. Va. 1982).

    1974 amendment did not allow punitive damages. —

    The 1974 amendment to former § 8-636.1 could only be interpreted to indicate the legislature’s intent that the enumerated elements listed as recoverable damages were not meant to exclude other factors a jury could consider in arriving at compensation for the beneficiary’s loss. It did not allow punitive damages. Estate of Armentrout v. International Harvester Co., 547 F. Supp. 136, 1982 U.S. Dist. LEXIS 15718 (W.D. Va. 1982).

    Dependency not prerequisite. —

    The damage provision of this statute requires proof of loss by the statutory beneficiary or beneficiaries. Dependency is not a prerequisite. Marshall v. Goughnour, 221 Va. 265 , 269 S.E.2d 801, 1980 Va. LEXIS 244 (1980).

    Beneficiary under the Virginia Wrongful Death Act need not be a dependent, nor a minor child. Wilson v. United States, 637 F. Supp. 669, 1986 U.S. Dist. LEXIS 24666 (E.D. Va. 1986).

    Award not intended to be replacement for loss sustained. —

    Under the broad language of this section, “any ‘pecuniary loss’ suffered by the statutory beneficiaries is clearly a proper element of damage,” but loss of comfort, guidance and society, like sorrow, mental anguish and solace, are virtually incalculable except in a rough and gross manner. Money is no substitute, and under the statute the amount which may be awarded is what “may seem fair and just.” Such an award is not suggested or intended to be replacement of the loss sustained. It is the means provided by which the damaging party may make some amends for the wrong done. Sawyer v. United States, 465 F. Supp. 282, 1978 U.S. Dist. LEXIS 14289 (E.D. Va. 1978).

    Damages determined from facts and circumstances. —

    Damages in a death case where the measure is what is fair and just, as in personal injury actions, are to be determined from all of the facts and circumstances. Sawyer v. United States, 465 F. Supp. 282, 1978 U.S. Dist. LEXIS 14289 (E.D. Va. 1978).

    Error to limit damages to funeral expenses. —

    A jury verdict for the exact amount of a decedent’s funeral expenses was inadequate as a matter of law because it failed to compensate her statutory beneficiaries for any other items of damage; by returning a verdict for only the amount of the funeral expenses, the jury demonstrated a misunderstanding of either the law or the facts or both in that the evidence at trial clearly supported the conclusion that the decedent’s statutory beneficiaries experienced sorrow, mental anguish and loss of solace as a result of the decedent’s death. Rice v. Charles, 260 Va. 157 , 532 S.E.2d 318, 2000 Va. LEXIS 95 (2000).

    Determination of damages for loss of society. —

    Damages for loss of society can be left to turn mainly upon the good sense and deliberate judgment of the trier, as insistence on mathematical precision would be illusory, and the judge or jury must be allowed to make a reasonable approximation, guided by judgment and practical experience. It is enough if the evidence shows the extent of damages as a matter of a just and reasonable inference, although the result be only an approximation. Sawyer v. United States, 465 F. Supp. 282, 1978 U.S. Dist. LEXIS 14289 (E.D. Va. 1978).

    Economic and intangible damages awards to widows and children. —

    Estate of a U.S. AID worker who was a victim of the 1983 U.S. Embassy bombing in Beirut, Lebanon, made out a valid claim of wrongful death under Virginia law and was entitled to recover $3.101 million in economic damages for the benefit of his widow, who was also entitled to $2 million to compensate for the loss of services, protection, care, and assistance provided by the victim, as well as for her sorrow, mental anguish, and solace pursuant to § 8.01-52 . Each of the victim’s children was entitled to $5 million for the loss of services, protection, care, and assistance provided by the victim, as well as for their sorrow, mental anguish, and solace. Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 2005 U.S. Dist. LEXIS 32618 (D.D.C. 2005).

    Damages recoverable for deprivation of decedent’s civil rights. —

    A decedent’s claims under 42 U.S.C. § 1983, based on violations of his civil rights which caused his death, survive him, and his duly qualified administratrix may be awarded compensatory and punitive damages for the deprivation if she succeeds on the merits of the case, since allowing the administratrix to obtain compensation only for whatever loss was suffered by statutory beneficiaries under the Virginia wrongful death statute and excluding a punitive award would be inconsistent with the compensatory and deterrent policies behind 42 U.S.C. § 1983. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345, 1981 U.S. Dist. LEXIS 15128 (E.D. Va. 1981).

    Speculative nature of decedents’ income. —

    The evidence as to reasonably expected loss of decedent’s income was inadmissible as a matter of law as being too speculative where decedent had a mental age of nine and was a functional illiterate who could only write his name and decedent’s only employment noted in the record continued for only eight weeks, during which time he lost six or seven days. Cassady v. Martin, 220 Va. 1093 , 266 S.E.2d 104, 1980 Va. LEXIS 205 (1980).

    No recovery by mother under this section for stillbirth. —

    Injury to an unborn child constitutes injury to the mother and she may recover for such physical injury and mental suffering associated with a stillbirth. She is not entitled, however, to damages ordinarily recoverable in a wrongful death action. For example, the mother may not recover for anticipated loss of the child’s society, companionship, comfort, or guidance. She may not be compensated for an expected loss of income of the child or for services, protection, care, or assistance expected to be provided by the child had he lived. Modaber v. Kelley, 232 Va. 60 , 348 S.E.2d 233, 3 Va. Law Rep. 510, 1986 Va. LEXIS 228 (1986).

    Expert testimony of grief excluded. —

    In a wrongful death action, the district court’s decision to exclude a doctor’s expert testimony, concluding that the jury could assess the mother’s inner grief without expert guidance, represented a reasonable exercise of the trial judge’s broad discretion under Federal Rule of Evidence 702 to determine that a proposed expert will not significantly assist the arbiter of fact. El-Meswari v. Washington Gas Light Co., 785 F.2d 483, 1986 U.S. App. LEXIS 22681 (4th Cir. 1986).

    Indirect physical injuries as illustration of mental anguish. —

    Although indirect physical injuries allegedly suffered by the mother as a result of her child’s death are not compensable in themselves, the court might nevertheless admit the mother’s proffered information to illustrate her claim of direct mental anguish. El-Meswari v. Washington Gas Light Co., 785 F.2d 483, 1986 U.S. App. LEXIS 22681 (4th Cir. 1986).

    Subdivision 1 does not authorize recovery for injury to the decedent’s mother’s heart or her miscarriage. The legislation addresses the decedent’s death as an independent event in the mother’s life and attempts to compensate the mother for the disruption of that single relationship. It claims no competence to trace or to relieve the indirect, although no doubt powerful, influence of the decedent’s death as it touches all of her mother’s future life. El-Meswari v. Washington Gas Light Co., 785 F.2d 483, 1986 U.S. App. LEXIS 22681 (4th Cir. 1986).

    Foreign burial. —

    The statutory guarantee of “reasonable funeral expenses” includes recovery for the foreign burial of a foreign citizen. El-Meswari v. Washington Gas Light Co., 785 F.2d 483, 1986 U.S. App. LEXIS 22681 (4th Cir. 1986).

    Admissibility of expectancy table in § 8.01-419 . —

    The expectancy of continued life of the decedent is relevant and necessary to establish the extent of loss for the decedent’s society, companionship, comfort, guidance, advice, services, protection, care, and assistance set out in this section. The expectancy table in § 8.01-419 , therefore, is admissible if such items of loss are supported by the evidence. Graddy v. Hatchett, 233 Va. 65 , 353 S.E.2d 741, 3 Va. Law Rep. 1910, 1987 Va. LEXIS 171 (1987).

    Loss of society, companionship, etc. —

    This section now permits recovery for the beneficiaries’ loss of society, companionship, comfort, guidance, advice, services, protection, care, and assistance provided by the decedent. These statutory elements contemplate assignment of a dollar value to these losses and recovery therefor whether or not the beneficiaries can establish their dependency on the decedent. Graddy v. Hatchett, 233 Va. 65 , 353 S.E.2d 741, 3 Va. Law Rep. 1910, 1987 Va. LEXIS 171 (1987).

    Special verdict relating to damages for solace, lost income, lost services, etc. —

    This section provides no authority for a special verdict relating to damages for solace, lost income, and lost services and protection. Johnson v. Smith, 241 Va. 396 , 403 S.E.2d 685, 7 Va. Law Rep. 2225, 1991 Va. LEXIS 64 (1991).

    Error in refusal to set aside verdict where no award for sorrow, mental anguish, etc. —

    In a wrongful death action where the decedent’s widow and children were awarded nothing for sorrow, mental anguish and solace, and the children were awarded nothing for lost services and protection, the award by the jury rendered the entire verdict suspect and lead to the conclusion that the jury must have misconceived or misunderstood the facts or the law; hence, the trial court erred in refusing to set aside the verdict. Johnson v. Smith, 241 Va. 396 , 403 S.E.2d 685, 7 Va. Law Rep. 2225, 1991 Va. LEXIS 64 (1991).

    Evidence held to support recovery for society, companionship, comfort, guidance, advice, services, protection, care, and assistance of 17-year-old decedent who was survived by his parents, a younger brother, two older half-sisters, and two older half-brothers. Graddy v. Hatchett, 233 Va. 65 , 353 S.E.2d 741, 3 Va. Law Rep. 1910, 1987 Va. LEXIS 171 (1987).

    Burden for proving punitive damages. —

    Virginia law views skeptically the utility of punitive damages as a deterrent to anything less than willful misconduct. The resulting interpretation of subdivision 5 places two burdens upon a plaintiff who seeks to prove that a defendant acted “with such recklessness as evinces a conscious disregard for the safety of others.” First, the plaintiff must show that the defendant intended all of the acts or omissions that created an extraordinary risk and that the defendant appreciated or had sufficient information to recognize the magnitude of the risk. Second, the plaintiff must show that the defendant responsible for such a risk responded to it with purposeful carelessness, deliberate inattention to known danger, or any intended violation or disregard of the rights of others. Punitive damages are available under this standard only if the plaintiff satisfies both requirements. El-Meswari v. Washington Gas Light Co., 785 F.2d 483, 1986 U.S. App. LEXIS 22681 (4th Cir. 1986).

    Negligence not amounting to conscious disregard precluded punitive damages. —

    Virginia law precluded an award of punitive damages in a claim, arising from a fatal traffic accident, against a lessee of a stalled truck on a highway, whose actions and omissions, while negligent and unlawful, did not amount to a conscious disregard of the rights of others. Peacock v. J.C. Penney Co., 764 F.2d 1012, 1985 U.S. App. LEXIS 19873 (4th Cir. 1985).

    Where a state court, in a wrongful death action under subdivision 5 of § 8.01-52 , made a clear judicial holding that the debtor’s conduct in shooting the creditor’s decedent was not reckless or willful, and thus did not justify an award of punitive damages, the bankruptcy court held that collateral estoppel barred the creditor from relitigating the issue of willfulness in the bankruptcy action, rendering the debt dischargeable under 11 U.S.C.S. § 523(a)(6). Cornejo v. Gotwalt (In re Gotwalt), No. 07-11866-SSM, No. 07-1128, 2008 Bankr. LEXIS 1384 (Bankr. E.D. Va. May 1, 2008).

    B.Reasonably Expected Loss.

    “Reasonably expected” loss of decedent’s income in subdivision 2 means such loss as the beneficiaries have suffered, or may suffer. Wilson v. United States, 637 F. Supp. 669, 1986 U.S. Dist. LEXIS 24666 (E.D. Va. 1986).

    The words “reasonably expected” in subdivision 2 of this section must clearly refer to the beneficiaries; assuredly, a decedent cannot “reasonably” expect the loss of earnings after she has passed away. Wilson v. United States, 637 F. Supp. 669, 1986 U.S. Dist. LEXIS 24666 (E.D. Va. 1986).

    Subdivision 2 makes no distinction between income lost prior to death and that which decedent would have probably earned over a normal work-life expectancy period. Wilson v. United States, 637 F. Supp. 669, 1986 U.S. Dist. LEXIS 24666 (E.D. Va. 1986).

    Decedent’s son, who had dropped out of college and left the family home, showed no evidence of reasonable expectancy of pecuniary loss occasioned by his mother’s death. Wilson v. United States, 637 F. Supp. 669, 1986 U.S. Dist. LEXIS 24666 (E.D. Va. 1986).

    Loss of daughter’s earning capacity due to illness of parents and grandmother. —

    Where decedent was living when the daughter graduated from college in December, 1983, and the evidence showed that all expenses for the daughter’s education had been paid by the parents, the loss due to defendants’ negligence to the daughter between February, 1983, when she dropped out of college, until the mother’s death in January, 1985, was essentially a loss of the daughter’s earning capacity due to the fact that she could have secured employment but for the illness of her mother, father and grandmother. Adopting the “fair and just” rule as being entitled to a broad and liberal construction, the court would fix this figure at $5,000 confined to the mother’s illness and the daughter’s reasonable expectancy that, had her mother been in reasonably good health, the mother would have cared for her father and grandmother. Wilson v. United States, 637 F. Supp. 669, 1986 U.S. Dist. LEXIS 24666 (E.D. Va. 1986).

    Plans of recent graduate. —

    In a wrongful death suit, evidence of declarations made by the deceased, an 18-year-old high school graduate, which indicated that he planned to become an architect and thereafter to send his younger, fatherless brother to medical school and to provide his widowed mother a new home, was rejected on the ground that it was too speculative. Howell v. Cahoon, 236 Va. 3 , 372 S.E.2d 363, 5 Va. Law Rep. 441, 1988 Va. LEXIS 120 (1988).

    II.Decisions Under Prior Law.

    Editor’s note.

    The Supreme Court has given the phrase “fair and just” a broad and liberal construction. This section contains no words of limitation confining the jury to merely pecuniary damages. Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629, 1955 Va. LEXIS 202 (1955); Gough v. Shaner, 197 Va. 572 , 90 S.E.2d 171, 1955 Va. LEXIS 256 (1955).

    The phrase “fair and just” in this section, relating to the amount and distribution of damages in a case of an award for wrongful death, should be given a broad and liberal construction. Eisenhower v. Jeter, 205 Va. 159 , 135 S.E.2d 786, 1964 Va. LEXIS 158 (1964).

    What losses to be considered. —

    Among the losses to be considered under this section are the loss of services, nurture and care, and other advantages and benefits of a pecuniary nature which probably will be lost in the future. Vandergrift v. United States, 500 F. Supp. 229, 1978 U.S. Dist. LEXIS 18697 (E.D. Va. 1978).

    Damages which to the jury “may seem fair and just” are the damages suffered by the statutory beneficiaries. Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124, 1967 Va. LEXIS 174 (1967).

    Damages are not confined to pecuniary loss. —

    In an action the jury, in assessing the damages, are not confined to the mere pecuniary loss and injury, but may give such damages as to them “may seem fair and just.” Matthews v. Warner, 70 Va. (29 Gratt.) 570, 1877 Va. LEXIS 44 (1877); Ratcliffe v. McDonald's Adm'r, 123 Va. 781 , 97 S.E. 307 , 1918 Va. LEXIS 66 (1918); Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629, 1955 Va. LEXIS 202 (1955).

    Under this section, the measure of damages in case of a man’s death is not limited to the pecuniary value of his life to his estate, but may be exemplary, punitive, and given as a solatium. Harris v. Royer, 165 Va. 461 , 182 S.E. 276 , 1935 Va. LEXIS 312 (1935).

    In an action under this section, the evidence would primarily relate to and the damages be not only for the pecuniary loss the wife, husband, parent, or child has sustained, but it would be proper for the jury, in computing damages, to take also into consideration the grief and mental anguish of such relatives, and their loss in being deprived of the care, attention, and society of deceased, and to include in the verdict such sum as the jury deem fair and just. Anderson v. Hygeia Hotel Co., 92 Va. 687 , 24 S.E. 269 , 1896 Va. LEXIS 31 (1896), limited, Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930).

    But it is a proper element. —

    This section allows the jury to award within the statutory limit such damages “as to it may seem fair and just.” Under this broad and permissive language, any “pecuniary loss” suffered by the statutory beneficiaries is clearly a proper element of damage. Gough v. Shaner, 197 Va. 572 , 90 S.E.2d 171, 1955 Va. LEXIS 256 (1955).

    No pecuniary loss necessary. —

    It is not necessary that a child have earned money or have a present earning capacity for his statutory beneficiaries to suffer pecuniary loss because of his death. Gough v. Shaner, 197 Va. 572 , 90 S.E.2d 171, 1955 Va. LEXIS 256 (1955).

    Recovery of pecuniary loss. —

    Any pecuniary loss suffered by the statutory beneficiaries is clearly a proper element of damage. See Vandergrift v. United States, 500 F. Supp. 229, 1978 U.S. Dist. LEXIS 18697 (E.D. Va. 1978).

    Recovery for mental anguish of beneficiaries, but not of decedent. —

    In this action given by the statute, the plaintiff cannot recover for the physical pain and mental anguish of the decedent. The mental anguish of the beneficiaries may be increased by the mental and physical suffering of the decedent and they may recover damages therefor, but it is their mental anguish and not the physical pain and mental anguish of the decedent for which recovery is allowed. Virginia Iron, Coal & Coke Co. v. Odle, 128 Va. 280 , 105 S.E. 107 , 1920 Va. LEXIS 106 (1920).

    Evidence of the pecuniary condition of the deceased and the members of his family is inadmissible for the purpose of proving the liability of the defendant or the quantum of the damages because this section gives a right of recovery regardless of whether the deceased or the members of his family are rich or poor. Crawford v. Hite, 176 Va. 69 , 10 S.E.2d 561, 1940 Va. LEXIS 234 (1940); Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629, 1955 Va. LEXIS 202 (1955).

    Absent evidence of contribution or the monetary value of services rendered a dependent, there can be no award for loss of services. Vandergrift v. United States, 500 F. Supp. 229, 1978 U.S. Dist. LEXIS 18697 (E.D. Va. 1978).

    The amount of recovery is left entirely to the discretion of the jury. Ratcliffe v. McDonald's Adm'r, 123 Va. 781 , 97 S.E. 307 , 1918 Va. LEXIS 66 (1918); Harris v. Royer, 165 Va. 461 , 182 S.E. 276 , 1935 Va. LEXIS 312 (1935); Chick Transit Corp. v. Edenton, 170 Va. 361 , 196 S.E. 648 , 1938 Va. LEXIS 193 (1938).

    The amount of damages is solely within the discretion of the jury and may not be set aside as inadequate or excessive, unless it is clearly shown that the verdict was a result of passion, prejudice, or corruption. Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629, 1955 Va. LEXIS 202 (1955).

    Where evidence showed that when decedent was killed, he was a normal, well developed, thirteen-year-old school boy, enjoying good health and of average intelligence, those proved facts were sufficient to justify an instruction allowing the jury to find that “pecuniary loss” was suffered by his statutory beneficiaries. In doing so the jurors had the right on that evidence to form their own conclusion as to what was decedent’s probable life expectancy and consider what they, in their sound judgment, thought would be his probable earnings in the future. Gough v. Shaner, 197 Va. 572 , 90 S.E.2d 171, 1955 Va. LEXIS 256 (1955).

    Measure of damages. —

    Damages may be for loss of deceased’s care, attention and society, as well as such sum as the jury may deem fair and just as a solatium to the beneficiaries for their sorrow and mental anguish caused by the death. Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124, 1967 Va. LEXIS 174 (1967).

    Facts and circumstances are to be considered. —

    Fixing damages in a death case where the measure is what is fair and just is to be determined from all of the facts and circumstances. Vandergrift v. United States, 500 F. Supp. 229, 1978 U.S. Dist. LEXIS 18697 (E.D. Va. 1978).

    Determination of damages for loss of society. —

    Damages for loss of society can be left to turn mainly upon the good sense and deliberate judgment of the trier, as insistence on mathematical precision would be illusory, and the judge or jury must be allowed to make a reasonable approximation, guided by judgment and practical experience. It is enough if the evidence shows the extent of damages as a matter of a just and reasonable inference, although the result be only an approximation. Vandergrift v. United States, 500 F. Supp. 229, 1978 U.S. Dist. LEXIS 18697 (E.D. Va. 1978).

    Award not reduced by amounts otherwise paid. —

    The theory that the award under this section, being for the full amount of damages, should be reduced by any amounts otherwise paid by the government to the injured parties, simply has no application in Virginia when the damages are found to exceed the former statutory maximum awardable. Harris v. United States, 218 F. Supp. 785, 1963 U.S. Dist. LEXIS 7537 (E.D. Va. 1963).

    It is not necessary to prove life expectancy of decedent by mortality tables. —

    In an action for wrongful death in this jurisdiction, it is not essential to prove the expectation of the life of the decedent by mortality tables. Eisenhower v. Jeter, 205 Va. 159 , 135 S.E.2d 786, 1964 Va. LEXIS 158 (1964).

    Daughter’s work-life earning capacity. —

    Only in compelling circumstances is it likely that earnings of a daughter may be expected to be applied substantially to the maintenance and support of her brothers and of her mother. Mullins v. Seals, 562 F.2d 326, 1977 U.S. App. LEXIS 11363 (4th Cir. 1977).

    Evidence regarding a daughter’s work-life earning capacity was irrelevant in an action for wrongful death where there was no basis for a finding that the daughter would have made any substantial financial contribution to her family if she had lived. Mullins v. Seals, 562 F.2d 326, 1977 U.S. App. LEXIS 11363 (4th Cir. 1977).

    Loss of services not recoverable as solace. —

    Loss of a decedent wife’s services, which were pecuniary losses, were not recoverable as solace. Pugh v. Yearout, 212 Va. 591 , 186 S.E.2d 58, 1972 Va. LEXIS 214 (1972).

    Record should show nature of services. —

    Where the record does not show the nature of the services rendered by the decedent the jury has no basis for awarding damages for loss of services. Claar v. Culpepper, 212 Va. 771 , 188 S.E.2d 86, 1972 Va. LEXIS 262 (1972).

    A jury verdict assessing damages for wrongful death is final and the Supreme Court has no authority to disturb it. Highway Express Lines v. Fleming, 185 Va. 666 , 40 S.E.2d 294, 1946 Va. LEXIS 240 (1946) (see also Cooke v. Griggs, 183 Va. 851 , 33 S.E.2d 764 (1944)).

    Instruction as to elements and quantum of damages. —

    In instructing on the elements and quantum of damages allowable under the broad and liberal language of this section, the court rightly told the jury that they might find in a sum not exceeding $25,000, and in ascertaining damages, take into consideration (among other enumerated things) the loss of decedent’s “care, attention and society to his wife and to each of his five children,” and also take into consideration and award such additional sum as they might “deem fair and just by way of solace and comfort to his wife and five children for the sorrow, suffering and mental anguish occasioned to each of them by his death.” Basham v. Terry, 199 Va. 817 , 102 S.E.2d 285, 1958 Va. LEXIS 129 (1958) (commented on in 16 Wash. & Lee L. Rev. 97 (1959)).

    There was no error in an instruction which told the jury that in the event they found for plaintiff they could assess such damages as they deemed fair and just under all the circumstances of the case. Norfolk S. Ry. v. Wood, 182 Va. 30 , 28 S.E.2d 15, 1943 Va. LEXIS 128 (1943).

    Evidence that deceased was receiving social security payments. —

    In an action for death by wrongful act there was no error in admitting evidence that decedent at the time of his death was receiving stated monthly social security payments. Jessee v. Slate, 196 Va. 1074 , 86 S.E.2d 821, 1955 Va. LEXIS 180 (1955).

    CIRCUIT COURT OPINIONS

    Damage award does not shock the court’s conscience. —

    Although the manufacturer’s post-trial filings raised the question of whether the jury’s decision to allocate $1 million to a 4-year-old boy’s baby brother was insupportable, a $2 million compensatory damage award for the boy’s wrongful death did not shock the court’s conscience; it was in no way disproportionate to the loss suffered. Simmons v. MTD Prods., 75 Va. Cir. 63, 2008 Va. Cir. LEXIS 224 (Roanoke Feb. 29, 2008).

    Who can be compensated. —

    Argument that only the natural mother could be damaged and compensated under § 8.01-52 was rejected as contrary to the statutorily defined role of an unborn fetus’ representative to distribute damages. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

    Natural mother is but one member of the class of beneficiaries described in § 8.01-53 , so the Circuit Court of the City of Petersburg, Virginia, finds no language in § 8.01-52 or § 8.01-53 limiting damages or compensation to only the natural mother. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

    Jury’s discretion. —

    Jury’s allocation of damages is a subject about which criticism from the parties will not be heard, and in allocating among members of the same class, the jury’s discretion is absolute. Simmons v. MTD Prods., 75 Va. Cir. 63, 2008 Va. Cir. LEXIS 224 (Roanoke Feb. 29, 2008).

    Claim barred. —

    Mother’s claim for economic damages against health care providers was barred by a two-year statute of limitations period and was distinct from the mother’s claims of loss of the child’s services. Delk v. Edens, 56 Va. Cir. 518, 2001 Va. Cir. LEXIS 322 (Newport News Oct. 17, 2001).

    Insurer was granted summary judgment because § 8.01-52 did not allow for any damages that were covered by the decedent’s insurance policy. The court found that the policy did not provide coverage for the sorrow, mental anguish, and solace damages that were provided by § 8.01-52 and claimed by the claimant. Southern Ins. Co. v. Somerville, 70 Va. Cir. 326, 2006 Va. Cir. LEXIS 64 (Orange County Mar. 24, 2006).

    Evidence of pain and suffering. —

    Because the decedent’s beneficiaries could show evidence of their mental anguish through evidence of the decedent’s pain and suffering, exclusion of that evidence was inappropriate. Sciortino v. Piccioni, 88 Va. Cir. 106, 2014 Va. Cir. LEXIS 71 (Norfolk Mar. 20, 2014).

    § 8.01-52.1. Admissibility of expressions of sympathy.

    In any wrongful death action brought pursuant to § 8.01-50 against a health care provider, or in any arbitration or medical malpractice review panel proceeding related to such wrongful death action, the portion of statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence, together with apologies that are made by a health care provider or an agent of a health care provider to a relative of the patient, or a representative of the patient about the death of the patient as a result of the unanticipated outcome of health care, shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. A statement of fault that is part of or in addition to any of the above shall not be made inadmissible by this section.

    For purposes of this section, unless the context otherwise requires:

    “Health care” has the same definition as provided in § 8.01-581.1 .

    “Health care provider” has the same definition as provided in § 8.01-581.1 .

    “Relative” means a decedent’s spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half-brother, half-sister, or spouse’s parents. In addition, “relative” includes any person who had a family-type relationship with the decedent.

    “Representative” means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a medical power of attorney, or any person recognized in law or custom as a patient’s agent.

    “Unanticipated outcome” means the outcome of the delivery of health care that differs from an expected result.

    History. 2005, cc. 649, 692; 2009, c. 414.

    The 2009 amendments.

    The 2009 amendment by c. 414 substituted “commiseration, condolence, compassion, or a general sense of benevolence, together with apologies that” for “or general sense of benevolence, which” in the first sentence of the first paragraph.

    Law Review.

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

    § 8.01-53. Class and beneficiaries; when determined.

    1. The damages awarded pursuant to § 8.01-52 shall be distributed as specified under § 8.01-54 to (i) the surviving spouse, children of the deceased and children of any deceased child of the deceased, and, only if there is a surviving spouse, children of the deceased, or children of any deceased child of the deceased, the parents of the decedent if any of such parents, within 12 months prior to the decedent’s death, regularly received support or regularly received services from the decedent for necessaries, including living expenses, food, shelter, health care expenses, or in-home assistance or care, or (ii) if there is no surviving spouse, children of the deceased, or children of any deceased child of the deceased, then to the parents, brothers and sisters of the deceased, and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (iii) if the decedent has left both surviving spouse and parent or parents, but no child or grandchild, the award shall be distributed to the surviving spouse and such parent or parents or (iv) if there are survivors under clause (i) or clause (iii), the award shall be distributed to those beneficiaries and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (v) if no survivors exist under clause (i), (ii), (iii), or (iv), the award shall be distributed in the course of descents as provided for in § 64.2-200 . Provided, however, no parent whose parental rights and responsibilities have been terminated by a court of competent jurisdiction or pursuant to a permanent entrustment agreement with a child welfare agency shall be eligible as a beneficiary under this section. For purposes of this section, a relative is any person related to the decedent by blood, marriage, or adoption and also includes a stepchild of the decedent.
    2. The class and beneficiaries thereof eligible to receive such distribution shall be fixed (i) at the time the verdict is entered if the jury makes the specification, or (ii) at the time the judgment is rendered if the court specifies the distribution.
    3. A beneficiary may renounce his interest in any claim brought pursuant to § 8.01-50 and, in such event, the damages shall be distributed to the beneficiaries in the same class as the renouncing beneficiary or, if there are none, to the beneficiaries in any subsequent class in the order of priority set forth in subsection A.

    History. Code 1950, §§ 8-636.1, 8-638; 1954, c. 333; 1973, c. 401; 1974, c. 444; 1977, cc. 460, 617; 1979, c. 356; 1992, c. 74; 1994, c. 515; 2003, c. 632; 2019, cc. 47, 328; 2021, Sp. Sess. I, c. 488.

    REVISERS’ NOTE

    Subsection 8.01-53 A (i) and (ii), similar to former §§ 8-636.1 and 8-638, defines the class and beneficiaries to receive the damages awarded and states when they are to be determined.

    Subsection A (iii) is the final proviso of former § 8-638 with one exception. By referring to “parent,” the former section included as beneficiaries within the third class only the mother or father of the decedent and not both. By referring to “parent or parents,” the third class now includes as beneficiaries both living parents or either surviving one.

    Subsection B sets the time when the class and beneficiaries who may receive the awarded damages will be fixed. This proposal codifies case law. See e.g., Baltimore & O.R.R. v. Wightman’s Adm’r, 70 Va. (29 Gratt.) 431 (1877), rev’d on other grounds, 104 U.S. 5, 26 L. Ed. 643 (1881); Johns v. Blue Ridge Transf. Co., 199 Va. 63 , 97 S.E.2d 723 (1957).

    Cross references.

    As to when inventory and settlement not required of personal representative, see § 64.2-1301 .

    Editor’s note.

    At the direction of the Virginia Code Commission, the reference to “§ 64.1-1” was changed to “§ 64.2-200 ” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

    Acts 2019, cc. 47 and 328, cl. 2 provides: “That the provisions of this act shall apply only to causes of action arising on or after July 1, 2019.”

    The 2003 amendments.

    The 2003 amendment by c. 632 inserted “or (v) if no survivors exist under clause (i), (ii), (iii), or (iv), the award shall be distributed in the course of descents as provided for in § 64.1-1” in subsection A.

    The 2019 amendments by cc. 47 and 328 are identical, and inserted “and the parents of the decedent if any of such parents, within 12 months prior to the decedent’s death, regularly received support or regularly received services from the decedent for necessaries, including living expenses, food, shelter, health care expenses, or in-home assistance or care” in clause (i) of subsection A. For applicability, see Editor’s note.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 488, effective July 1, 2021, in subsection A, inserted “only if there is a surviving spouse, children of the deceased, or children of any deceased child of the deceased” and substituted “is no surviving spouse, children of the deceased, or children of any deceased child of the deceased” for “be none such.”

    Law Review.

    For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977).

    For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, see “Civil Practice and Procedure,” 26 U. Rich. L. Rev. 679 (1992).

    For survey article on the law pertaining to wills, trusts, and estates, see 38 U. Rich. L. Rev. 267 (2003).

    For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Death by Wrongful Act, §§ 4, 6, 8, 10, 11, 15, 17, 18.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    The classes of beneficiaries named in the statute are exclusive; a court is not at liberty to consider additional or alternative beneficiaries. Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358, 1980 U.S. Dist. LEXIS 11778 (E.D. Va. 1980).

    Determination of eligible beneficiary. —

    Under subsection B of this section, any person included among the pertinent categories of beneficiaries specified in subsection A at the time the jury’s verdict is entered is a beneficiary eligible to receive a distribution. Mann v. Hinton, 249 Va. 555 , 457 S.E.2d 22, 1995 Va. LEXIS 45 (1995).

    Beneficiaries under this section distinguished from general beneficiaries. —

    Virginia makes a careful distinction between beneficiaries under this section and the general beneficiaries of the decedent’s estate. Miltier v. Beorn, 696 F. Supp. 1086, 1988 U.S. Dist. LEXIS 11549 (E.D. Va. 1988).

    Personal representative merely surrogate for beneficiaries. —

    Section 8.01-50 (B) vests the right of action in the decedent’s personal representative. The right of action, however, is not a right to enforce a cause of action personal to the personal representative. As the party-plaintiff, he is merely a surrogate for the beneficiaries of the cause of action named in this section. Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318, 1986 Va. LEXIS 184 (1986).

    Because an administrator could only prosecute a wrongful death action on behalf of the beneficiaries identified in § 8.01-53 , the administrator was not entitled to file the action pro se; therefore, in the absence of a valid motion for judgment, there were no pleadings that could be amended. Kone v. Wilson, 272 Va. 59 , 630 S.E.2d 744, 2006 Va. LEXIS 70 (2006).

    Recovery on behalf of widow and children. —

    Estate of a U.S. AID worker who was killed in the 1983 U.S. Embassy bombing in Beirut, Lebanon, was the proper plaintiff to bring a wrongful death action against defendants, the Islamic Republic of Iran and its Ministry of Intelligence and Security, and any recovery was for the benefit of the decedent’s surviving spouse and children. Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 2005 U.S. Dist. LEXIS 32618 (D.D.C. 2005).

    Issue of paternity of beneficiary in a wrongful death suit was one for resolution by the jury. Cassady v. Martin, 220 Va. 1093 , 266 S.E.2d 104, 1980 Va. LEXIS 205 (1980).

    Standard of proof of paternity. —

    Absent the presumption of legitimacy which attaches to a child born in wedlock, the standard of proof of paternity in a wrongful death case is proof by a preponderance of the evidence. Smith v. Givens, 223 Va. 455 , 290 S.E.2d 844, 1982 Va. LEXIS 224 (1982).

    When hearsay evidence of paternity admissible. —

    For purposes of the pedigree exception to the hearsay rule, the decedent in a wrongful death action is a member of the family or related to the family, whose history the decedent’s declaration of paternity concerns, viz., the family composed of those named as beneficiaries in this section; thus, hearsay evidence of the decedent’s declarations is admissible in such a case, provided no other better evidence can be obtained. Smith v. Givens, 223 Va. 455 , 290 S.E.2d 844, 1982 Va. LEXIS 224 (1982).

    Hearsay evidence of paternity precluded where mother’s testimony available. —

    In wrongful death case, where alleged illegitimate child of decedent, under the provisions of § 8.01-411 et seq. and Indiana law, could have taken his mother’s deposition in Indiana and, in compliance with Supreme Court Rule 4:7(a)(4), introduced her testimony as direct evidence in support of his claim, the pedigree exception did not apply and the trial court erred in admitting hearsay evidence of decedent’s paternity. Smith v. Givens, 223 Va. 455 , 290 S.E.2d 844, 1982 Va. LEXIS 224 (1982).

    Where the first wife fails to rebut the presumption favoring the last marriage because the evidence does not show that divorce records were searched in other places where the deceased had resided, or could have resided, the second spouse will be held to be the surviving spouse, and thus a beneficiary pursuant to this section. Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358, 1980 U.S. Dist. LEXIS 11778 (E.D. Va. 1980).

    The term “children,” as used in this section, does not include unadopted stepchildren. Brown v. Brown, 226 Va. 320 , 309 S.E.2d 586, 1983 Va. LEXIS 289 (1983), cert. denied, 467 U.S. 1242, 104 S. Ct. 3513, 82 L. Ed. 2d 821, 1984 U.S. LEXIS 2577 (1984).

    Adopted child as beneficiary. —

    Where an infant is adopted by the parents of the deceased after the death of the deceased but before damages were awarded for wrongful death of decedent, the adopted infant falls within the class of beneficiaries delineated in this section. Knodel v. Dickerman, 246 Va. 124 , 431 S.E.2d 323, 9 Va. Law Rep. 1478, 1993 Va. LEXIS 97 (1993).

    Administratrix may recover for deprivation of decedent’s civil rights. —

    A decedent’s claims under 42 U.S.C. § 1983, based on violations of his civil rights which caused his death, survive him, and his duly qualified administratrix may be awarded compensatory and punitive damages for the deprivation if she succeeds on the merits of the case, since allowing the administratrix to obtain compensation only for whatever loss was suffered by statutory beneficiaries under the Virginia wrongful death statute and excluding a punitive award would be inconsistent with the compensatory and deterrent policies behind 42 U.S.C. § 1983. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345, 1981 U.S. Dist. LEXIS 15128 (E.D. Va. 1981).

    Distributees of shipyard worker determined under this section, not federal admiralty law. —

    Virginia’s wrongful death statute, not federal admiralty law, was applicable in determining who was entitled to share in distribution of a settlement award, where the decedent was a shipyard worker killed while engaged in the repair of a barge in Norfolk. There is no federal cause of action for the death of nonseamen in state territorial waters occasioned by negligence. Therefore, the cause of action was cognizable only under Virginia law, and admiralty law could not be relied on to establish who was a distributee. Brown v. Brown, 226 Va. 320 , 309 S.E.2d 586, 1983 Va. LEXIS 289 (1983), cert. denied, 467 U.S. 1242, 104 S. Ct. 3513, 82 L. Ed. 2d 821, 1984 U.S. LEXIS 2577 (1984).

    Unrelated woman living with decedent. —

    In an action for the wrongful death of a ship repair yard worker, a woman who was unrelated to the decedent through blood or marriage, but who had lived with the decedent for several years and had received some support from the decedent, was not entitled to any recovery under this section. Ford v. American Original Corp., 475 F. Supp. 10, 1979 U.S. Dist. LEXIS 11981 (E.D. Va. 1979).

    Matter of law determination of relative status. —

    Only when the facts and circumstances are such that reasonable persons could not differ should the trial court decide as a matter of law whether a decedent’s relative is a “dependent” or “member of the same household.” Mann v. Hinton, 249 Va. 555 , 457 S.E.2d 22, 1995 Va. LEXIS 45 (1995).

    II.Decisions Under Prior Law.

    Editor’s note.

    Object of statute. —

    The primary object of this statute is to compensate the family of the deceased. Richmond, F. & P.R.R. v. Martin's Adm'r, 102 Va. 201 , 45 S.E. 894 , 1903 Va. LEXIS 122 (1903), limited, Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930).

    An action for wrongful death is not for the benefit of the decedent’s estate, but for certain near relatives. Conrad v. Thompson, 195 Va. 714 , 80 S.E.2d 561, 1954 Va. LEXIS 150 (1954).

    The purpose of the wrongful death statute is not to allow damages solely to those who might look to decedent for support. Statutory beneficiaries who may have had no reasonable expectance of support from the decedent may recover for loss of care, attention and society, as well as for suffering and mental anguish caused them by his death. Wolfe v. Lockhart, 195 Va. 479 , 78 S.E.2d 654, 1953 Va. LEXIS 219 (1953); Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124, 1967 Va. LEXIS 174 (1967).

    In a wrongful death action the suit was prosecuted on behalf of the siblings of the decedent and was not for the benefit of the minor decedent’s general estate. Taylor v. Anderson, 303 F.2d 546, 1962 U.S. App. LEXIS 5124 (4th Cir. 1962).

    The primary object of the wrongful death statute, like its prototype, Lord Campbell’s Act, is to compensate the family of the deceased and not to benefit his creditors. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620, 1971 Va. LEXIS 236 (1971), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

    Object of article and Federal Death Act the same. —

    While the persons who were designated as beneficiaries under the Federal Death Act and the Virginia Wrongful Death Act are not described in identical language, the primary object of the two legislative acts is the same. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620, 1971 Va. LEXIS 236 (1971), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

    The classes of beneficiaries described in the statute are exclusive, and other classes or persons cannot be added by judicial construction. Porter v. VEPCO, 183 Va. 108 , 31 S.E.2d 337, 1944 Va. LEXIS 135 (1944); Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629, 1955 Va. LEXIS 202 (1955).

    This section controls over statute of descents and distribution. —

    If the distributees named in the statute of descents and distribution are different from the persons entitled to the proceeds named in this section, the provisions of the latter control. Withrow v. Edwards, 181 Va. 344 , 25 S.E.2d 343, 1943 Va. LEXIS 185, set aside, 181 Va. 592 , 25 S.E.2d 899, 1943 Va. LEXIS 207 (1943); Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620, 1971 Va. LEXIS 236 (1971), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

    Punishment of wrongdoer not intended. —

    The right of action for damages for personal injuries expires upon the death of the injured person. The death by wrongful act statute does not cause to survive this right of action, but it creates in the decedent’s personal representative a new right of action to compensate decedent’s statutory beneficiaries for their loss. Its purpose was not to punish the wrongdoer. Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124, 1967 Va. LEXIS 174 (1967).

    Manner of awarding damages. —

    Unlike a personal estate passing under the intestate law, which is a fund to be distributed equally among members of the same class, damages in wrongful death actions should be awarded individually and separately to the statutory beneficiaries according to their respective damages. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620, 1971 Va. LEXIS 236 (1971), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

    Beneficiaries within designated class may receive whole or any part of recovery. —

    Even though a minor son has certain rights of possible participation under the death statute, it remained within the discretion of the jury or the court hearing the case without a jury to direct in what proportion the damages should be distributed to the surviving widow and/or child, and it is clear from this section that beneficiaries within the designated class may receive the whole or any part of the recovery. Holley v. The Manfred Stansfield, 186 F. Supp. 805, 1960 U.S. Dist. LEXIS 4249 (E.D. Va. 1960).

    Death of class beneficiaries does not terminate cause of action. —

    The death of class beneficiaries before recovery does not terminate the cause of action. Johns v. Blue Ridge Transf. Co., 199 Va. 63 , 97 S.E.2d 723, 1957 Va. LEXIS 162 (1957).

    Under this section brothers and sisters of the half blood fall within the same class as parents of a decedent and may participate in the damages awarded if the jury or court, as the case may be, shall elect to so specify. Wolfe v. Lockhart, 195 Va. 479 , 78 S.E.2d 654, 1953 Va. LEXIS 219 (1953).

    The right of the “widowed mother” of the decedent is not based on dependence. Waters v. Harrell, 183 Va. 764 , 33 S.E.2d 194, 1945 Va. LEXIS 224 (1945).

    And the widowed mother’s remarriage is no bar. —

    The “widowed mother’s” remarriage has nothing to do with the rights of persons whom the statute undertakes to benefit, in the absence of an express provision of law affecting such rights. If the legislature had intended the right which they have to the “widowed mother” to abate upon remarriage, it could easily have said so by adding appropriate words. Waters v. Harrell, 183 Va. 764 , 33 S.E.2d 194, 1945 Va. LEXIS 224 (1945).

    A surviving spouse, who has deserted the decedent and lived in adultery, is not barred from sharing in damages for wrongful death. Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629, 1955 Va. LEXIS 202 (1955).

    A person who claims to be a decedent’s child has the burden of proving that the decedent was his parent. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620, 1971 Va. LEXIS 236 (1971), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

    A child of a bigamous marriage was entitled to participate under the Wrongful Death Act by virtue of former § 64.1-7. Grove v. United States, 170 F. Supp. 176, 1959 U.S. Dist. LEXIS 3699 (D. Va.), aff'd, 271 F.2d 918, 1959 U.S. App. LEXIS 3160 (4th Cir. 1959).

    “Children” includes illegitimate children. —

    The term “children,” as used in this section, and irrespective of any constitutional consideration, includes illegitimate children. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620, 1971 Va. LEXIS 236 (1971), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

    The word “children” as used in this section includes the illegitimate child of a father whose death gives rise to a wrongful death action. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620, 1971 Va. LEXIS 236 (1971), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

    An illegitimate child is made a beneficiary and entitled to share in the recovery under the Virginia wrongful death statute. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620, 1971 Va. LEXIS 236 (1971), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

    But damages awarded such child should not reduce award to wife or other children. —

    Except as limited by the maximum amount of recovery, an award of damages to an illegitimate child should not reduce the damages awarded to a wife or other children of the decedent. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620, 1971 Va. LEXIS 236 (1971), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

    An illegitimate child who has had little or no connection with his father cannot prove damage from the loss of his father’s care, attention and society, or any sorrow and mental anguish. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620, 1971 Va. LEXIS 236 (1971), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

    Nature of recovery. —

    An illegitimate child who had been a member of decedent’s family since birth suffered a substantial loss in the death of her father. He had bestowed upon her a father’s love, care and affection, and he had maintained and supported her. The recovery obtained was in compensation for these losses. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620, 1971 Va. LEXIS 236 (1971), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

    Illegitimate child as sole member of first class. —

    Since illegitimate children are included under the Wrongful Death Act, an illegitimate child who is the sole member of the first class of beneficiaries, but who has sustained no damage, will unjustly preclude any award to a decedent’s parents and more remote kindred who have sustained damages. But the existence of an unworthy legitimate child who has sustained no damage likewise precludes any award to a decedent’s parents or more remote kindred who have sustained damages. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620, 1971 Va. LEXIS 236 (1971), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

    A resident alien widow, residing in another state, may maintain on behalf of herself and children an action for the wrongful death of her husband. Pocahontas Collieries Co. v. Rukas, 104 Va. 278 , 51 S.E. 449 , 1905 Va. LEXIS 97 (1905).

    Contributory negligence of one beneficiary does not bar whole recovery. —

    The contributory negligence of a beneficiary bars his recovery. However, under this section it is the duty of the jury to specify the amount, or proportion, of the recovery to be received by each of the beneficiaries and the contributory negligence of one party only defeats recovery so far as he is concerned. City of Danville v. Howard, 156 Va. 32 , 157 S.E. 733 , 1931 Va. LEXIS 176 (1931).

    Distribution of fund recovered for tortious killing. —

    Any distribution of the fund recovered for a tortious killing committed in this State must be in accordance with the wrongful death statute creating the right of action. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620, 1971 Va. LEXIS 236 (1971), overruled in part, Jones v. Robinson, 229 Va. 276 , 329 S.E.2d 794, 1985 Va. LEXIS 204 (1985).

    Jury entitled to know age and physical condition of beneficiaries. —

    This section places upon the jury the duty of apportioning the damages among the designated beneficiaries. In order that such apportionment may be intelligently made the jury is entitled to know the physical condition, the health, and the ages of the respective persons who may under the statute share in the proceeds of the recovery. Crawford v. Hite, 176 Va. 69 , 10 S.E.2d 561, 1940 Va. LEXIS 234 (1940) (see Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955)).

    Disclaimer of right to participate in award does not prevent estoppel by judgment. —

    The father of the decedent in a wrongful death action could not, by disclaiming his statutory right under this section to participate in the unlawful death award, effectively avoid the estoppel created by a final determination for the defendant in a state court which would otherwise bar his subsequent personal action against the same defendant. Taylor v. Anderson, 303 F.2d 546, 1962 U.S. App. LEXIS 5124 (4th Cir. 1962).

    CIRCUIT COURT OPINIONS

    Standing. —

    Administratrix had standing under § 8.01-13 to bring an action against insurers for their failure to defend under an assignment of rights obtained in a consent agreement with a defendant tortfeasor in a wrongful death action on behalf of five estates’ beneficiaries; the administratrix was the proper person to bring the wrongful death actions under § 8.01-50 , and she acted as the surrogate for the beneficiaries of the cause of action named in § 8.01-53 . Beckner v. Twin City Fire Ins. Co., 58 Va. Cir. 544, 2002 Va. Cir. LEXIS 175 (Roanoke June 27, 2002).

    Who can be compensated. —

    Natural mother is but one member of the class of beneficiaries described in § 8.01-53 , so the Circuit Court of the City of Petersburg, Virginia, finds no language in § 8.01-52 or § 8.01-53 limiting damages or compensation to only the natural mother. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

    Jury’s discretion. —

    Jury’s allocation of damages is a subject about which criticism from the parties will not be heard, and in allocating among members of the same class, the jury’s discretion is absolute. Simmons v. MTD Prods., 75 Va. Cir. 63, 2008 Va. Cir. LEXIS 224 (Roanoke Feb. 29, 2008).

    Contract for arbitration binding on beneficiaries. —

    Circuit court entered an order compelling arbitration of a wrongful death action because a decedent’s contract for arbitration entered into on her behalf by her attorney in fact, which bound the decedent, her assessors, legal representatives, and beneficiaries was binding on the statutory beneficiaries. Bohlen v. Capital Senior Living, Inc., 104 Va. Cir. 178, 2020 Va. Cir. LEXIS 18 (Chesapeake Jan. 31, 2020).

    Damage award to baby brother. —

    Although the manufacturer’s post-trial filings raised the question of whether the jury’s decision to allocate $1 million to a 4-year-old boy’s baby brother was insupportable, a $2 million compensatory damage award for the boy’s wrongful death did not shock the court’s conscience; it was in no way disproportionate to the loss suffered. Simmons v. MTD Prods., 75 Va. Cir. 63, 2008 Va. Cir. LEXIS 224 (Roanoke Feb. 29, 2008).

    § 8.01-54. Judgment to distribute recovery when verdict fails to do so.

    1. The verdict may and the judgment of the court shall in all cases specify the amount or the proportion to be received by each of the beneficiaries, if there be any. No verdict shall be set aside for failure to make such specification.
    2. If either party shall so request the case shall be submitted to the jury with instructions to specify the distribution of the award, if any. If the jury be unable to agree upon or fail to make such distribution, the court shall specify the distribution and enter judgment accordingly. For the purpose of distribution the court may hear additional evidence.
    3. The amount recovered in any such action shall be paid to the personal representative who shall first pay the costs and reasonable attorney’s fees and then distribute the amount specifically allocated to the payment of hospital, medical, and funeral expenses. The remainder of the amount recovered shall thereafter be distributed by the personal representative, as specified in subsections A and B above, to the beneficiaries set forth in § 8.01-53 ; provided that any distribution made to any such beneficiaries shall be free from all debts and liabilities of the decedent. If there be no such beneficiaries, the amount so recovered shall be assets in the hands of the personal representative to be disposed of according to law.

    History. Code 1950, § 8-638; 1954, c. 333; 1973, c. 401; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-54 is based on former § 8-638 and clarifies the procedure for the specification of the damages awarded under § 8.01-52 and distribution to those beneficiaries determined under § 8.01-53 .

    Subsection A is the substance of the first two sentences of former § 8-638. Subsection B requires the court, upon request of either party, to instruct the jury to specify the distribution of the award among the beneficiaries and clarifies the court’s authority to apportion the award.

    Subsection C provides that the damages awarded are to be paid to the decedent’s personal representative. After payment of costs and reasonable attorney’s fees, the representative is to distribute the medical and funeral expenses as specifically allocated under § 8.01-52 . The remainder of the awarded damages are to be distributed as specified in subsections A and B to the beneficiaries as determined under § 8.01-53 . If there are no beneficiaries under § 8.01-53 , the personal representative is to dispose of the remaining awarded damages according to law; then, and only then, can the remainder of the awarded damages be subjected to claims by creditors of the decedent.

    Law Review.

    For articles on damages recoverable for wrongful death, see 12 Wm. & Mary L. Rev. 396 (1970) and 5 U. Rich. L. Rev. 213 (1971).

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Death by Wrongful Act, §§ 4, 6, 10, 13, 15, 18, 19.

    CASE NOTES

    Any distribution of the fund recovered for a tortious killing committed in this State must be in accordance with the death by wrongful act statutes. Withrow v. Edwards, 181 Va. 344 , 25 S.E.2d 343, 1943 Va. LEXIS 185, set aside, 181 Va. 592 , 25 S.E.2d 899, 1943 Va. LEXIS 207 (1943); Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629, 1955 Va. LEXIS 202 (1955) (decided under prior law).

    The death by wrongful act statutes create the right of action for tortious death, limit the recovery, and name the classes of beneficiaries who may share in the recovery. Such recovery can be distributed only in accordance with the express terms of the statute. Porter v. VEPCO, 183 Va. 108 , 31 S.E.2d 337, 1944 Va. LEXIS 135 (1944) (decided under prior law).

    Damages are not part of decedent’s estate. —

    Damages recovered in an action for wrongful death are not part of the estate of the decedent, and the recovery can be distributed only in accordance with the express terms of this statute. Porter v. VEPCO, 183 Va. 108 , 31 S.E.2d 337, 1944 Va. LEXIS 135 (1944) (decided under prior law).

    And are not subject to dower or curtesy. —

    The damages recovered in an action for wrongful death are not subject to the dower or curtesy of the surviving consort. Porter v. VEPCO, 183 Va. 108 , 31 S.E.2d 337, 1944 Va. LEXIS 135 (1944) (decided under prior law).

    The use of special verdicts in negligence cases is unknown in Virginia, and, unless the parties agree otherwise, there is no reason to require such a verdict where negligence results in death and causes sorrow, mental anguish, lost income, and lost services and protection. Rather, damages for these elements should be awarded in a lump sum and distributed to the beneficiaries according to this section. Johnson v. Smith, 241 Va. 396 , 403 S.E.2d 685, 7 Va. Law Rep. 2225, 1991 Va. LEXIS 64 (1991).

    Trial court has authority to question attorney’s fees. —

    Legislature intended issue of reasonableness of attorney’s fees to issue in settlement of any wrongful death case; thus, trial court erred in stating that it had no authority to question attorney’s fees. Lovelace v. Lovelace, 237 Va. 174 , 375 S.E.2d 750, 5 Va. Law Rep. 1538, 1989 Va. LEXIS 20 (1989).

    Distribution of award is left to court’s discretion. —

    Estate of a U.S. AID worker who was killed in the 1983 U.S. Embassy bombing in Beirut, Lebanon, brought a wrongful death action against defendants, the Islamic Republic of Iran and its Ministry of Intelligence and Security for the benefit of the decedent’s surviving spouse and children, and the precise distribution of the award among the statutory beneficiaries was left to the court’s discretion. Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 2005 U.S. Dist. LEXIS 32618 (D.D.C. 2005).

    Minor beneficiaries. —

    In a wrongful death case, the trial court erred when it refused to direct payment of the minor beneficiaries’ awards to the personal representatives and instead ordered that the awards be placed in a bank account maintained by the clerk of court. The trial court had no authority to disregard the statutory command under subsection C of § 8.01-54 directing that the award shall be paid to the personal representatives. In re Woodley, 290 Va. 482 , 777 S.E.2d 560, 2015 Va. LEXIS 141 (2015).

    Evidence of debts of decedent inadmissible. —

    As the wrongful death action recovery is exclusively for the benefit of certain class beneficiaries, and free from all debts of the decedent, evidence of such items would not be admissible in such action. Holley v. The Manfred Stansfield, 186 F. Supp. 805, 1960 U.S. Dist. LEXIS 4249 (E.D. Va. 1960) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Distribution of award is left to court’s discretion. —

    After a settlement was reached in a wrongful death action, the trial court had authority to determine how to distribute the settlement proceeds that remained after payment of court-approved attorney’s fees among the seven statutory beneficiaries. Because of the close relationship evidenced between the deceased, his second wife to whom he had been married since 1989, their minor child and the deceased’s minor stepson, the court awarded the majority of the settlement award to those three beneficiaries, and awarded a nominal award to each of the deceased’s four grown children from a previous marriage. Squillaci v. Lewis-Gale Hosp., Inc., 2006 Va. Cir. LEXIS 139 (Roanoke Sept. 1, 2006).

    Consent judgment not void ab initio. —

    Assuming the trial court in a wrongful death action resulting in a consent agreement failed to specify the amount to be received by the beneficiaries as required by subsection A of § 8.01-54 , the failure to do so did not void the judgment; a judgment is void ab initio only if it has been procured by extrinsic or collateral fraud, or entered by a court that did not have jurisdiction over the subject matter or the parties. Beckner v. Twin City Fire Ins. Co., 58 Va. Cir. 544, 2002 Va. Cir. LEXIS 175 (Roanoke June 27, 2002).

    § 8.01-55. Compromise of claim for death by wrongful act.

    The personal representative of the deceased may compromise any claim to damages arising under or by virtue of § 8.01-50 , including claims under the provision of a liability insurance policy, before or after an action is brought, with the approval of the court in which the action was brought, or if an action has not been brought, with the consent of any circuit court. Such approval may be applied for on petition to such court, by the personal representative, or by any potential defendant, or by any interested insurance carrier. If a potential defendant or any insurance carrier petitions the court for approval, the personal representative shall be made a party to the proceeding. The petition shall state the compromise, its terms and the reason therefor. The court shall require the convening of the parties in interest in person or by their authorized representative, but it shall not be necessary to convene grandchildren whose living parents are made parties to the proceeding. The parties in interest shall be deemed to be convened if each such party (i) endorses the order by which the court approves the compromise or (ii) is given notice of the hearing and proposed compromise as provided in § 8.01-296 if a resident of the Commonwealth or as provided in § 8.01-320 if a nonresident, or is otherwise given reasonable notice of the hearing and proposed compromise as may be required by the court.

    If the court approves the compromise, and the parties in interest do not agree upon the distribution to be made of what has been or may be received by the personal representative under such compromise, or if any of them are incapable of making a valid agreement, the court shall direct such distribution as a jury might direct under § 8.01-52 as to damages awarded by them. In other respects, what is received by the personal representative under the compromise shall be treated as if recovered by him in an action under § 8.01-52 .

    History. Code 1950, § 8-639; 1960, cc. 35, 587; 1977, c. 617; 1981, c. 286; 1991, c. 97; 1995, c. 366.

    REVISERS’ NOTE

    Besides changes to conform former § 8-639 with modern practice, reference to “an automobile” insurance policy has been deleted and “a liability” policy substituted. This change recognizes that there are many types of liability insurance policies issued besides auto policies.

    Law Review.

    For survey of Virginia law on trusts and estates for the year 1976-77, see 63 Va. L. Rev. 1503 (1977).

    For comment, “The Covenant Not to Sue: Virginia’s Effort to Bury the Common Law Rule Regarding the Release of Joint Tortfeasors,” see 14 U. Rich. L. Rev. 809 (1980).

    For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

    Michie’s Jurisprudence.

    For related discussion, see 4A M.J. Compromise and Settlement, § 13.

    CASE NOTES

    Applicability. —

    In a wrongful death case arising from an alleged wrongful death in Iraq in which the district court was asked to approve a settlement agreement, the Virginia wrongful death statute, §§ 8.01.50 through 8.01.56, did not have extraterritorial application. The claim of the deceased’s estate and his widow and two sons, who were all Iraqi citizens, did not arise under or by virtue of the Virginia statute. Estate of Sa'Adoon v. Prince, 660 F. Supp. 2d 723, 2009 U.S. Dist. LEXIS 97973 (E.D. Va. 2009).

    Parties in interest have general grant of standing. —

    Legislature meant for parties in interest to be heard once they were convened; thus, this section provides general grant of standing to parties in interest to be heard in proceeding to approve compromise. Lovelace v. Lovelace, 237 Va. 174 , 375 S.E.2d 750, 5 Va. Law Rep. 1538, 1989 Va. LEXIS 20 (1989).

    “May” mandatory. —

    The legislative purpose in changing the old law was to require court approval of all compromises in order better to protect those the legislature had selected as beneficiaries. In light of that purpose, the word “may” as used in the second sentence of this section is mandatory. Under that construction, the first sentence grants the authority to compromise, and the second specifies the condition of that authority. Caputo v. Holt, 217 Va. 302 , 228 S.E.2d 134, 1976 Va. LEXIS 276 (1976) (decided under former version of this section).

    Release absent court approval not binding. —

    When a circuit court approves a compromise settlement under this section, the terms of the release on which it is based likewise are subject to the court’s approval. Ramey v. Bobbitt, 250 Va. 474 , 463 S.E.2d 437, 1995 Va. LEXIS 128 (1995) (decided under former version of this section).

    Trial court has authority to question attorney’s fees. —

    Legislature intended issue of reasonableness of attorney’s fees to issue in settlement of any wrongful death case; thus, trial court erred in stating that it had no authority to question attorney’s fees. Lovelace v. Lovelace, 237 Va. 174 , 375 S.E.2d 750, 5 Va. Law Rep. 1538, 1989 Va. LEXIS 20 (1989).

    Beneficiaries have standing to challenge attorney’s fees. —

    Statutory beneficiaries in wrongful death case have standing to challenge reasonableness of attorney’s fees. Lovelace v. Lovelace, 237 Va. 174 , 375 S.E.2d 750, 5 Va. Law Rep. 1538, 1989 Va. LEXIS 20 (1989).

    Settlements of wrongful death claims open to public. —

    The judicial records in issue were accumulated in a wrongful death action. Settlements of wrongful death claims must be approved by the courts, and the public has a societal interest in learning whether compromise settlements are equitable and whether the courts are administering properly the powers conferred upon them, therefore, the trial court erred in sealing that class of data. Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253 , 368 S.E.2d 253, 4 Va. Law Rep. 2424, 1988 Va. LEXIS 55 (1988).

    Settling parties’ contention that § 8.01-55 did not require a written petition to the circuit court or that such petition need not state the financial terms of the compromise settlement was not supported by the plain meaning of the language of the statute. Therefore, the circuit court did not err in construing § 8.01-55 to require a party seeking approval of a compromise settlement of a wrongful death claim to file in the court a written petition that included the complete and unredacted terms of the compromise settlement. Perreault v. Free Lance-Star, 276 Va. 375 , 666 S.E.2d 352, 2008 Va. LEXIS 96 (2008).

    Given the salutary purpose of § 8.01-55 , the court could not conceive that the General Assembly intended to permit the confidentiality provisions allowed but not required by § 8.01-581.22 to trump the provisions of § 8.01-55 and, consequently, the right of public access provided for by § 17.1-208 in the context of the records of court approval of the compromise settlement of a wrongful death claim achieved through mediation. Accordingly, the circuit court did not err when the court ruled that in approving the compromise settlements in the present cases, the court was not subject to a de jure requirement under § 8.01-581.22 to place the record, or at least that portion of the record detailing the financial terms of the compromise settlements, under seal. Perreault v. Free Lance-Star, 276 Va. 375 , 666 S.E.2d 352, 2008 Va. LEXIS 96 (2008).

    Release absent court approval not binding. —

    Absent court approval acquired in the manner provided by this section, the release executed by an unqualified administrator was not binding upon the statutory beneficiaries, and the plea of release was properly denied. Caputo v. Holt, 217 Va. 302 , 228 S.E.2d 134, 1976 Va. LEXIS 276 (1976).

    Those portions of a release that are not made part of a wrongful death compromise settlement approved by a circuit court are not binding on the parties to the release. Ramey v. Bobbitt, 250 Va. 474 , 463 S.E.2d 437, 1995 Va. LEXIS 128 (1995).

    This section does not apply in action by infant for personal injuries. —

    Sections 8.01-424 and 8.01-425 and this section relating to compromises by fiduciaries and on behalf of parties incapable of making binding contracts, have no application to a settlement effected involving the payment of the whole demand asserted by a motion in an action by an infant for personal injuries. The case stands upon the same footing as an adult’s case. Hinton v. Norfolk & W. Ry., 137 Va. 605 , 120 S.E. 135 , 1923 Va. LEXIS 183 (1923) (decided under former version of this section).

    Inclusion in court order. —

    Nothing in the language of the Wrongful Death Act, §§ 8.01-50 through 8.01-56 , precludes the inclusion in a court’s order of the affirmative relief the parties have agreed to as part of their settlement of a Wrongful Death Action. Fisher v. Salute, 51 Va. App. 293, 657 S.E.2d 169, 2008 Va. App. LEXIS 99 (2008).

    Contempt proceedings. —

    Where a dock owner agreed to remove a boat dock pursuant to a wrongful death settlement agreement that was included in the court order approving the settlement, the dock owner was properly found in contempt because: (1) the dock owner used structures or objects on the property to moor or dock a boat; and (2) the trial court had jurisdiction to enforce the terms of the settlement since nothing in the language of the Wrongful Death Act precluded the inclusion in the trial court’s order of the affirmative relief the parties had agreed to as part of their settlement of the wrongful death action. Fisher v. Salute, 51 Va. App. 293, 657 S.E.2d 169, 2008 Va. App. LEXIS 99 (2008).

    CIRCUIT COURT OPINIONS

    Apportionment between statutory beneficiaries. —

    After a settlement was reached in a wrongful death action, the trial court had authority to determine how to distribute the settlement proceeds that remained after payment of court-approved attorney’s fees among the seven statutory beneficiaries. Because of the close relationship evidenced between the deceased, his second wife to whom he had been married since 1989, their minor child and the deceased’s minor stepson, the court awarded the majority of the settlement award to those three beneficiaries, and awarded a nominal award to each of the deceased’s four grown children from a previous marriage. Squillaci v. Lewis-Gale Hosp., Inc., 2006 Va. Cir. LEXIS 139 (Roanoke Sept. 1, 2006).

    Settlements of wrongful death claims open to public. —

    If the legislative purpose of the statute is to serve the public’s societal interest in learning whether compromise settlements are equitable and whether the courts are administering properly the powers conferred on them, the same interest is served by the disclosure of any basis for reducing a lien claimed by the Commonwealth. Chan v. Commonwealth, 2015 Va. Cir. LEXIS 210 (Charlottesville July 28, 2015).

    If the policy consideration of the statute applies to an intrafamilial distribution of proceeds recovered in a wrongful death action, it applies in a case in which one party is asking the Commonwealth to reduce a lien claimed by it for services rendered to that party. Chan v. Commonwealth, 2015 Va. Cir. LEXIS 210 (Charlottesville July 28, 2015).

    If the policy of § 8.01-55 applies to what is essentially a private affair, surely it must apply with even greater force when the public is being asked, even for good reasons, to subsidize medical care to an individual by foregoing all or some portion of an amount specifically reserved to, and protected by lien for, the Commonwealth (and, by extension, the public). Chan v. Commonwealth, 2015 Va. Cir. LEXIS 210 (Charlottesville July 28, 2015).

    § 8.01-56. When right of action not to determine nor action to abate.

    The right of action under § 8.01-50 shall not determine, nor the action, when brought, abate by the death, dissolution, or other termination of a defendant; and when a person who has brought an action for personal injury dies pending the action, such action may be revived in the name of his personal representative. If death resulted from the injury for which the action was originally brought, a motion for judgment and other pleadings shall be amended so as to conform to an action under § 8.01-50 , and the case proceeded with as if the action had been brought under such section. In such cases, however, there shall be but one recovery for the same injury.

    History. Code 1950, § 8-640; 1954, c. 333; 1977, c. 617.

    REVISERS’ NOTE

    The second clause of former § 8-640 has been changed to eliminate certain procedural stipulations which are covered by § 8.01-50 and the rules. The former section provided for the dissolution of a corporate defendant. The addition of “or other termination” of a defendant expands this provision to encompass other organizations such as associations and trusts.

    Cross references.

    As to judgment when death occurs after verdict, see § 8.01-21 .

    For rule of court on substitution of parties, see Rule 3:17.

    Law Review.

    For note, “Assignability of a Tort Cause of Action in Virginia,” see 41 Va. L. Rev. 687 (1955).

    For discussion of wrongful death action and special damages, see 47 Va. L. Rev. 354 (1961).

    For article, “Civil Rights and ‘Personal Injuries’: Virginia’s Statute of Limitations for Section 1983 Suits,” see 26 Wm. & Mary L. Rev. 199 (1985).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 10, 30, 32.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Sections 8.01-21 , 8.01-25 , 8.01-50 , and 8.01-56 compared. —

    The requirements of the survival and wrongful death statutes, §§ 8.01-25 , 8.01-50 and 8.01-56 , apply when the death occurs before a final verdict, whereas § 8.01-21 applies where the death occurs after the verdict. Boyd v. Bulala, 647 F. Supp. 781, 1986 U.S. Dist. LEXIS 18099 (W.D. Va. 1986), amended, 678 F. Supp. 612, 1988 U.S. Dist. LEXIS 1186 (W.D. Va. 1988), aff'd in part and rev'd in part, 877 F.2d 1191, 1989 U.S. App. LEXIS 8364 (4th Cir. 1989); Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670, 6 Va. Law Rep. 1399, 1990 Va. LEXIS 44 (1990).

    Section 8.01-25 and this section are not in conflict with § 8.01-21 . They were enacted to extend the application of § 8.01-50 , the wrongful death statute, those situations not covered by the original Lord Campbell’s Act, in which a plaintiff who has filed an action for personal injuries, dies of those injuries before a verdict is returned. It was unnecessary at common law to amend, revive, or convert the action of the party who survived the return of a verdict, and it is equally unnecessary under the present statutory scheme. Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670, 6 Va. Law Rep. 1399, 1990 Va. LEXIS 44 (1990).

    Death of a child born with birth defects after a medical malpractice verdict did not require converting her claim into one for wrongful death. Section 8.01-21 directly so provides, by directing that in such cases, “judgment may be entered as if [death] had not occurred.” Section 8.01-25 and this section are not in conflict. They deal with the situation where death occurs before verdict. Boyd v. Bulala, 905 F.2d 764, 1990 U.S. App. LEXIS 9498 (4th Cir. 1990).

    This section modifies the “every cause of action” language of § 8.01-25 to place all personal injury actions in which death occurred as a result of the injury under the wrongful death rubric. Miltier v. Beorn, 696 F. Supp. 1086, 1988 U.S. Dist. LEXIS 11549 (E.D. Va. 1988).

    Conversion of foreign action to Virginia action. —

    A valid foreign personal injury action may be converted to a Virginia wrongful death action, even though the foreign action was not filed within Virginia’s two-year limitations period. Riddle v. Shell Oil Co., 764 F. Supp. 418, 1990 U.S. Dist. LEXIS 19448 (W.D. Va. 1990).

    Choice of recovery theory in malpractice action. —

    The plain language contained in § 8.01-25 and this section unequivocally mandates that a person may not recover for the same injury under the survival statute and the wrongful death statute. There can be but one recovery. Hence, the plaintiffs in instant case, as a matter of law, could not have recovered in the underlying tort action against defendants on both theories of wrongful death and survival. Therefore, it necessarily follows that in the present malpractice action, at an appropriate time after discovery has been completed, the plaintiffs must be required to elect whether they will proceed against the defendant attorneys on the theory that the attorneys breached a duty owed to the plaintiffs in the prosecution of the wrongful death action or breached a duty owed to the plaintiffs in the prosecution of the survival action. Hendrix v. Daugherty, 249 Va. 540 , 457 S.E.2d 71, 1995 Va. LEXIS 68 (1995).

    Although the administrators and the health care provider agreed that the administrators filing a medical malpractice action against the health care providers had to elect between recovering under their survival action claim pursuant to § 8.01-25 and wrongful death claim under § 8.01-50 , which position also was supported under § 8.01-56 , the administrators were entitled to present their claim to the jury and have the jury decide the issue of causation before the administrators had to make that election. As a result, the administrators could recover monetary damages awarded by the jury involving the survival act claim, especially since the verdict awarding no damages on the wrongful death claim understood it could not award damages under both theories. Centra Health, Inc. v. Mullins, 277 Va. 59 , 670 S.E.2d 708, 2009 Va. LEXIS 3 (2009).

    Choice of recovery in wrongful death cases. —

    Under Virginia law, a person could not recover for the same injury under the survival statute and the wrongful death statute if that injury or wrongful act resulted in the victim’s death; because decedent’s daughter had already recovered under the Virginia Wrongful Death Act in a state proceeding, plaintiff could not recover under the Maryland Survival Act, and the district court did not err in concluding that Virginia law barred plaintiff from proceeding under the Maryland Survival Act. Jones v. Prince George's County, 355 Fed. Appx. 724, 2009 U.S. App. LEXIS 26678 (4th Cir. 2009).

    No election of remedy. —

    Circuit court erred in granting the motions to dismiss on the grounds that plaintiff elected a remedy when he settled the Kentucky personal injury action against the Kentucky medical providers, and that plaintiff’s wrongful death action against the Virginia medical providers was barred by this statute because there was no language in this statute that would prohibit the filing of a wrongful death action in Virginia based on the settlement of a personal injury claim in another state; and Kentucky law allowed the filing of a personal injury claim in addition to a wrongful death claim for the same injury. Green v. Diagnostic Imaging Assocs., P.C., 299 Va. 1 , 843 S.E.2d 371, 2020 Va. LEXIS 61 (2020).

    No double recovery. —

    This Statute and other statutory and common-law principles prohibiting double recovery did not bar plaintiff’s Virginia wrongful death action from moving forward as any alleged double recovery based on the settlement of a personal injury claim in Kentucky could be addressed by the circuit court. Green v. Diagnostic Imaging Assocs., P.C., 299 Va. 1 , 843 S.E.2d 371, 2020 Va. LEXIS 61 (2020).

    Where two witnesses vary in their statements of facts. —

    Where administratrix brought action for personal injuries based on nursing homes treatment of decedent, dismissal of the action prior to completion of administratrix’s evidence deprived her of opportunity to prove damages for personal injury and, therefore, constituted reversible error; although one doctor testified that nursing home’s treatment hastened decedent’s death, the testimony did not leave administratrix with only a wrongful death action; court should have allowed administratrix to proceed with testimony of another doctor that the cause of death was pneumonia since when two or more witnesses introduced by a party litigant vary in their statements of fact, such party has the right to ask the court or jury to accept as true the statements most favorable to him. Lucas v. HCMF Corp., 238 Va. 446 , 384 S.E.2d 92, 6 Va. Law Rep. 601, 1989 Va. LEXIS 151 (1989).

    II.Decisions Under Prior Law.

    Editor’s note.

    Purpose of statute. —

    This section was designed to give the right of revival in cases where the plaintiff in actions for personal injuries died pending the action, without regard to the cause of death, and not to make all actions for personal injuries revivable. Birmingham v. C & O Ry., 98 Va. 548 , 37 S.E. 17 , 1900 Va. LEXIS 76 (1900).

    Right given is not strictly a survival of the right of action. —

    While this section gives a statutory right in case of the death of the plaintiff that right given is not, properly speaking, a survival of the right of action as interpreted by the Supreme Court. Ruebush v. Funk, 63 F.2d 170, 1933 U.S. App. LEXIS 3354 (4th Cir. 1933). But see Tignor v. Parkinson, 729 F.2d 977, 1984 U.S. App. LEXIS 24480 (4th Cir. 1984).

    The statutes of Virginia do not, in any real sense, provide for the survival of a right of action for personal injury if the injured person dies as a result of the injury. Grady v. Irvine, 254 F.2d 224, 1958 U.S. App. LEXIS 3991 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60, 1958 U.S. LEXIS 414 (1958).

    Meaning of “action”. —

    The Supreme Court of Virginia interprets the terms “cause of action” and “action,” as used in this section and § 8.01-25 , as encompassing only such rights of action as are otherwise granted or contemplated by statute. They do not include every right of action which, at any time, may have existed as a result of the tortious conduct. Grady v. Irvine, 254 F.2d 224, 1958 U.S. App. LEXIS 3991 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60, 1958 U.S. LEXIS 414 (1958).

    No recovery for mental anguish, etc. —

    This section gives a right of revival in cases where the plaintiff dies pending the action, without regard to the cause of death. In such case if death resulted from the injury, the pleadings are required to be amended, and the case proceeded with as if brought under the death by wrongful act statutes. In that event there could be no recovery for the mental anguish, pain or suffering of the decedent. Seymour v. Richardson, 194 Va. 709 , 75 S.E.2d 77, 1953 Va. LEXIS 139 (1953).

    Federal court loses jurisdiction where resident administrator is substituted for nonresident plaintiff. —

    Where a nonresident plaintiff brings an action for personal injuries against a citizen of Virginia in the federal district court in Virginia, and while the action is pending dies of his injuries, and his administrator moves to be substituted as plaintiff and to amend the complaint so as to conform to an action for death by wrongful act, the federal court upon granting the motion loses jurisdiction of the action, since under § 26-59 the administrator must be a citizen of Virginia, and thus there is no diversity of citizenship between the parties. Grady v. Irvine, 254 F.2d 224, 1958 U.S. App. LEXIS 3991 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60, 1958 U.S. LEXIS 414 (1958).

    CIRCUIT COURT OPINIONS

    Survival of cause of action after death. —

    A decedent’s cause of action survives his death, whether or not it is related to the death; if it is related it becomes a wrongful death claim and if it is not related, it is said to survive. Wright v. Eli Lilly & Co., 65 Va. Cir. 485, 2004 Va. Cir. LEXIS 295 (Portsmouth Sept. 21, 2004).

    Choice of recovery theory in malpractice action. —

    Although an administratrix was permitted to proceed both on a survivorship and a wrongful death claim, she could recover on only one theory pursuant to §§ 8.01-25 and 8.01-56 . There was no reason to prohibit her from arguing contradictory theories of liability pursuant to § 8.01-281 and Va. Sup. Ct. R. 1:4(k). Williams v. Med. Facilities of Am., 75 Va. Cir. 416, 2005 Va. Cir. LEXIS 380 (Virginia Beach Feb. 16, 2005).

    Appointment of fiduciary required. —

    Plaintiff parents did not qualify as the personal representatives of their deceased child’s estate under subsection B of § 8.01-50 and, therefore, in their wrongful death action brought against a property management corporation, the corporation’s plea in bar was granted with prejudice since the two-year statute of limitations had expired the day after the parents brought suit, thereby preventing joinder of a personal representative, who had been appointed 10 months after the suit was filed. The court refused to apply the law of Japan, as urged by the parents, because Japanese law did not require any additional step to qualify a person to bring suit on behalf of a decedent, which directly conflicted with Virginia law that required the appointment of a fiduciary. Yoshida v. Capital Props. Mgmt., 68 Va. Cir. 279, 2005 Va. Cir. LEXIS 124 (Fairfax County July 26, 2005).

    Complaint properly amended. —

    Personal injury claim was not time barred as: (1) the original suit was filed against defendants two and three within the two-year limit required by § 8.01-243 ; (2) after the decedent’s death, the administrator properly amended the complaint to include a wrongful death action under § 8.01-56 ; (3) after a voluntary nonsuit, the administrator brought the second action within the six-month tolling period under subdivision E 3 of § 8.01-229 ; and (4) an increased ad damnum in the refiled action did not convert the suit into a new cause of action. Jackson v. Vanga, 85 Va. Cir. 266, 2012 Va. Cir. LEXIS 90 (Norfolk Aug. 24, 2012).

    Article 6. Injuries to Railroad Employees.

    § 8.01-57. Liability of railroads for injury to certain employees.

    Every common carrier by railroad engaged in intrastate commerce shall be liable in damages to any of its employees suffering injury while employed by such carrier or, in the case of the death of any such employee, to his personal representative, for such injury or death, resulting in whole or in part from the wrongful act or neglect of any of its officers, agents, servants, or employees, or by reason of any defect, or insufficiency due to its neglect in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment, except when such employee is injured while engaged in interstate commerce, and except when such employee is injured in the course of his regular employment and such regular employment does not expose such employee to the hazards incident to the maintenance, use and operation of such railroad. If the action be for the death of an employee, §§ 8.01-50 through 8.01-56 shall apply thereto.

    History. Code 1950, § 8-641; 1954, c. 614; 1977, c. 617.

    REVISERS’ NOTE

    The reference to former “§§ 8-634 to 8-640” has been changed to “§§ 8.01-50 through 8.01-56 ” so as to include the entire wrongful death article. The former language “so far as applicable and when not in conflict herewith” has been deleted to avoid any possibility of a conflict with §§ 8.01-50 through 8.01-56 .

    Cross references.

    As to limitation of action for personal injury, see §§ 8.01-243 and 8.01-244 .

    For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Death by Wrongful Act, § 2.

    CASE NOTES

    Editor’s note.

    For history of Virginia Employers’ Liability Act, see Karabalis v. E.I. Du Pont De Nemours & Co., 129 Va. 151 , 105 S.E. 755 , 1921 Va. LEXIS 84 (1921).

    Power of legislature to classify railroads. —

    It is within the constitutional authority of the legislature in enactments such as the Virginia Employers’ Liability Act, which are in the exercise of the police power of the State, to adopt a classification which would embrace every corporation operating every kind of road or way on which rails of iron are laid for the wheels of cars to run on, without regard to the character of the railroad as fixed by the business in which it is engaged, e.g., whether the corporation is engaged in the business of a common carrier or of manufacturing. Karabalis v. E.I. Du Pont De Nemours & Co., 129 Va. 151 , 105 S.E. 755 , 1921 Va. LEXIS 84 (1921).

    This section is not applicable to railroads engaged in interstate commerce. Norfolk & W. Ry. v. Hall, 49 F.2d 692, 1931 U.S. App. LEXIS 3240 (4th Cir. 1931).

    But no allegation as to intrastate commerce is necessary. —

    Where an injured railroad employee is suing the employer for injuries sustained in employment, it is unnecessary to allege that the employee was engaged in intrastate commerce which is allegation for surplusage, because this and the following sections, covering intrastate commerce, are almost word for word like the federal act. Norfolk & P. Belt Line R.R. v. White, 143 Va. 875 , 129 S.E. 339 , 1925 Va. LEXIS 310 (1925).

    Construction of similar acts adopted. —

    This section closely follows the language of the Federal Employers’ Liability Act, and the Supreme Court will adopt the construction placed upon apposite language by the Supreme Court of the United States. C & O Ry. v. Mizelle, 136 Va. 237 , 118 S.E. 241 , 1923 Va. LEXIS 82 (1923).

    The general rule is that when the General Assembly adopts a statute which has been previously enacted by another sovereignty and construed by the courts of that sovereignty, then such previous construction of the statute is held to be also adopted. C & O Ry. v. Mizelle, 136 Va. 237 , 118 S.E. 241 , 1923 Va. LEXIS 82 (1923).

    Statute is considered in light of kindred legislation. —

    Whatever may be the specific words used in an employers’ liability act, or in kindred legislation to classify the objects of the statute, the legislative meaning of the words must be found by considering them in the light of other legislation in the particular state on the same subject, and of the meaning which is given to the same words in other existing general legislation of such state. Karabalis v. E.I. Du Pont De Nemours & Co., 129 Va. 151 , 105 S.E. 755 , 1921 Va. LEXIS 84 (1921).

    Private railroad operated by manufacturing company not within act. —

    The Virginia Employers’ Liability Act, as contained in this article, does not apply to the class of employees therein specified of a manufacturing corporation operating in the State a private railroad, merely incidental to and in connection with its manufacturing business. The act only applies to employees of corporations operating in this State railroads used or authorized by law to be used as common carriers engaged in intrastate commerce. Karabalis v. E.I. Du Pont De Nemours & Co., 129 Va. 151 , 105 S.E. 755 , 1921 Va. LEXIS 84 (1921).

    Machinist repairing engine in shop cannot invoke act. —

    The plaintiff, a machinist, who was working on the repair of an engine in the shops of defendant railway, was not engaged in intrastate commerce, or transportation service, within the meaning of the Virginia statute, and hence cannot invoke either this section or § 8.01-59 , which applies to actions brought under this section. Plaintiff was not engaged in either interstate or intrastate commerce. C & O Ry. v. Mizelle, 136 Va. 237 , 118 S.E. 241 , 1923 Va. LEXIS 82 (1923).

    § 8.01-58. Contributory negligence no bar to recovery; violation of safety appliance acts.

    In all actions brought against any such common carrier to recover damages for personal injuries to any employee or when such injuries have resulted in his death, the fact that such employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee; and no such employee, who may be injured or killed, shall be held to have been guilty of contributory negligence in any case when the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.

    History. Code 1950, § 8-642; 1954, c. 614; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 12B M.J. Master and Servant, §§ 55, 79.

    CASE NOTES

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    Employment need not be intrastate commerce as in §§ 8.01-57 and 8.01-59 . —

    It was argued that this section both in the Code and in the original act (Acts 1916, p. 763), should be construed together with the preceding § 8.01-57 and the following § 8.01-59 , and that so construed all three refer to injuries suffered while the employees are engaged in intrastate commerce. But it was held that such a construction would do violence to the language of the section. C & O Ry. v. Mizelle, 136 Va. 237 , 118 S.E. 241 , 1923 Va. LEXIS 82 (1923).

    Test is whether carrier is engaged in intrastate commerce. —

    Under this section, contributory negligence is no longer an absolute bar to an action by an injured employee of any common carrier by railroad whose motive power is steam engaged in intrastate commerce, whether such employee is injured while engaged in such commerce or not. The test under this section is not whether at the time of his injury the employee was engaged in intrastate commerce, but merely whether the defendant carrier is engaged in such commerce. C & O Ry. v. Mizelle, 136 Va. 237 , 118 S.E. 241 , 1923 Va. LEXIS 82 (1923).

    Negligence of defendant must be established. —

    Until the negligence of defendant is established, no question of contributory negligence of plaintiff can arise. It is essential, therefore, first to establish the negligence of the defendant. In the instant case, negligence of defendant was not established, as the failure of plaintiff’s intestate to put up the blue flag for his protection, as required by a rule of the railroad company, was the sole proximate cause of his death. Shumaker's Adm'r v. Atlantic C.L.R.R., 125 Va. 393 , 99 S.E. 739 , 1919 Va. LEXIS 32 (1919).

    There is nothing in this section which denies the defense of assumed risk, though to a limited extent it is denied by § 8.01-59 in actions brought under § 8.01-57 . C & O Ry. v. Mizelle, 136 Va. 237 , 118 S.E. 241 , 1923 Va. LEXIS 82 (1923).

    Contributory negligence does not bar recovery. —

    Unlike § 8.01-58 , which specifically provides that contributory negligence shall not bar a recovery in action brought by employees against a common carrier where death resulted from the common carrier’s violation of a statute enacted for the safety of employees, nothing in the Newport News Building Code or Code of City of Newport News § 10-3, allows recovery regardless of a plaintiff’s negligence. Therefore, plaintiff who fell backwards over a balcony that did not comply with the height requirements of the building code could not recover against building’s owner, even though owner was per se negligent for violating code, because her contributory negligence barred her recovery. O'Neill v. Windshire-Copeland Assocs., L.P., 267 Va. 605 , 595 S.E.2d 281, 2004 Va. LEXIS 73 (2004).

    § 8.01-59. Assumption of risk; violation of safety appliance acts.

    In any action brought against any common carrier, under or by virtue of § 8.01-57 , to recover damages for injuries to, or death of, any of its employees, the knowledge of any employee injured or killed of the defective or unsafe character or condition of any machinery, ways, appliances, or structures of such carrier shall not of itself be a bar to recovery for an injury or death caused thereby, nor shall such employee be held to have assumed the risk of his employment in any case in which the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury, or death of such employee.

    History. Code 1950, § 8-643; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 12B M.J. Master and Servant, §§ 55, 57, 79, 81.

    CASE NOTES

    Editor’s note.

    Purpose of section. —

    This section was intended to conform the law of assumption of risk in intrastate commerce to the rule applied by the federal decisions to the similar statute applicable to interstate commerce. Roberts v. Southern Ry., 151 Va. 815 , 144 S.E. 863 , 1928 Va. LEXIS 276 (1928).

    No effect on interstate carriers when Congress has acted. —

    Where Congress has spoken upon the question of the liability of interstate carriers to their employees, this section, as to assumption of risk and the violation of the Safety Appliance Act, cannot be looked to for guidance as to the liability of such carriers to their employees. Southern Ry. v. Wilmouth, 154 Va. 582 , 153 S.E. 874 , 1930 Va. LEXIS 234, cert. denied, 282 U.S. 878, 51 S. Ct. 81, 75 L. Ed. 775, 1930 U.S. LEXIS 291 (1930).

    § 8.01-60. Contracts exempting from liability void; set-off of insurance.

    Any contract, rule, regulation or device whatsoever the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by § 8.01-57 , shall to that extent be void; but in any action brought against any such common carrier under or by virtue of such section, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief, benefit or indemnity company that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which such action was brought.

    History. Code 1950, § 8-644; 1977, c. 617.

    § 8.01-61. Definition of “common carrier” as used in article.

    The term “common carrier” as used in §§ 8.01-57 to 8.01-60 shall include the receivers or other persons or corporations charged with the duty of the management or operation of the business of a common carrier by railroad; but shall not include persons, firms or corporations owning or operating railroads when such railroads are primarily and chiefly used as incidental to the operation of coal, gypsum or iron mines or saw mills, nor shall it apply to any railroad owned or operated by any county.

    History. Code 1950, § 8-645; 1954, c. 614; 1977, c. 617.

    § 8.01-62. Action may embrace liability under both State and federal acts.

    The motion for judgment or other pleading in any such action may embrace a cause of action growing out of any statute of the United States or this Commonwealth for such injury or death, without being demurrable on this account, and without the plaintiff being required to elect under which statute he claims. Sections 8.01-57 through 8.01-61 shall not apply to electric railways operated wholly within this Commonwealth.

    History. Code 1950, § 8-646; 1954, c. 614; 1977, c. 617.

    REVISERS’ NOTE

    The reference in former § 8-646 to any “act of Congress of the United States of America” has been deleted and “statute of the United States or this Commonwealth” has been substituted. This change does not broaden the scope of former § 8-646 but is made to reflect case law that it is not necessary for the plaintiff to specify whether the action is brought under the United States or the Virginia statute; i.e., it is sufficient if the facts alleged bring the action within either statute since the Virginia court has jurisdiction under both the federal and State laws. Shumaker’s Adm’x v. Atlantic Coast Line R.R., 125 Va. 393 , 99 S.E. 739 (1919).

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Death by Wrongful Act, § 2.

    CASE NOTES

    State and federal statutes exclusive in their jurisdiction. —

    Whenever the acts of Congress relative to the liability of common carriers engaged in interstate commerce to their employees are applicable, they are exclusive, but if not applicable and the state statute is, the latter will be applied. No case can arise where both statutes are applicable. Shumaker's Adm'r v. Atlantic C.L.R.R., 125 Va. 393 , 99 S.E. 739 , 1919 Va. LEXIS 32 (1919) (decided under prior law).

    But state court has jurisdiction of both. —

    It is often extremely difficult to determine whether the injured servant was engaged in interstate commerce or not. The advantage of suing in the state court is that that court has jurisdiction under both acts, and if necessary facts are stated, jurisdiction will be maintained under the appropriate statute. Shumaker's Adm'r v. Atlantic C.L.R.R., 125 Va. 393 , 99 S.E. 739 , 1919 Va. LEXIS 32 (1919) (decided under prior law).

    Article 7. Motor Vehicle Accidents.

    § 8.01-63. Liability for death or injury to guest in motor vehicle.

    Any person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation and any personal representative of any such guest so transported shall be entitled to recover damages against such owner or operator for death or injuries to the person or property of such guest resulting from the negligent operation of such motor vehicle. However, this statute does not limit any defense otherwise available to the owner or operator.

    History. Code 1950, § 8-646.1; 1974, c. 551; 1977, c. 617.

    Cross references.

    For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

    Law Review.

    For discussion of punitive damages and their possible application in automobile accident litigation, see 46 Va. L. Rev. 1036 (1960).

    For case note on assumptions of risk as a limitation of liability in guest-host relationships, see 18 Wash. & Lee L. Rev. 316 (1961).

    For comment, “The Case Against the Guest Statute,” see 7 Wm. & Mary L. Rev. 321 (1966).

    For comment on guest statute applicability to motor-driven golf carts, see 25 Wash. & Lee L. Rev. 293 (1968).

    For survey of Virginia law on torts for the year 1968-1969, see 55 Va. L. Rev. 1395 (1969).

    for the year 1970-1971, see 57 Va. L. Rev. 1501 (1971).

    for the year 1971-1972, see 58 Va. L. Rev. 1349 (1972).

    for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974).

    for the year 1974-1975, see 61 Va. L. Rev. 1856 (1975).

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Automobiles, §§ 42 — 44.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Simple negligence is the failure to exercise that degree of care that an ordinary prudent person would exercise under the same or similar circumstances to avoid injury to another. Gossett v. Jackson, 249 Va. 549 , 457 S.E.2d 97, 1995 Va. LEXIS 62 (1995).

    Sufficient evidence of driver’s conduct as proximate cause of negligence. —

    Plaintiff’s presented evidence from which the jury could have inferred that defendant’s negligence was a proximate cause of the accident. For example, defendant had previously stopped the car at intersections minutes before the accident occurred and the jury could have found that but for defendant’s excessive speed of 60 m.p.h., he would have been able to use the brakes to stop the car and, thus, prevent the accident. The jury could have also found that the car’s mechanical condition was not a proximate cause of the accident because police officer testified that the condition of the car did not affect its speed. Furthermore, the jury could have found that defendant was negligent in his operation of the car because he took his hands off the steering wheel of the car as it was “weaving” and traveling at a speed of 60 m.p.h. immediately before the collision. Gossett v. Jackson, 249 Va. 549 , 457 S.E.2d 97, 1995 Va. LEXIS 62 (1995).

    II.Decisions Under Prior Law.

    Editor’s note.

    Statute does not apply to transportation by airplane. —

    Transportation by airplane is markedly different from transportation by automobile, and neither this section nor the policy behind it should be applied to airplane travel without legislative action. Walthew v. Davis, 201 Va. 557 , 111 S.E.2d 784, 1960 Va. LEXIS 129 (1960).

    “Guest” defined. —

    The word “guest” is used to denote one whom the owner or possessor of a motor car or other vehicle invites or permits to ride with him as a gratuity, that is, without any financial return, except such slight benefits as it is customary to extend as a part of the ordinary courtesies of the road. Thus the mere benefit resulting from companionship, or the advantage resulting from a promise to assist in the driving, is not of a legal value sufficient in itself to transfer a gratuitous undertaking into an undertaking for payment. Mayer v. Puryear, 115 F.2d 675, 1940 U.S. App. LEXIS 2965 (4th Cir. 1940).

    Even though he may be driving his host’s car, a person is still considered a guest as far as his host is concerned. Mayer v. Puryear, 115 F.2d 675, 1940 U.S. App. LEXIS 2965 (4th Cir. 1940); Leonard v. Helms, 269 F.2d 48, 1959 U.S. App. LEXIS 3444 (4th Cir. 1959).

    There was no business relationship between plaintiff and defendant where plaintiff undertook to assist defendant and another friend in helping move material in a truck and the offer to help was a nature of rendition of neighborly assistance without expectation of personal benefit or compensation. The plaintiff was riding as a mere guest. Miller v. Ellis, 188 Va. 207 , 49 S.E.2d 273, 1948 Va. LEXIS 158 (1948).

    To raise the status of a passenger from that of guest to paying passenger there must be shown more than incidental benefit conferred on, or social amenities extended to, the owner or operator of the vehicle; the benefit must be a consideration for the transportation. Davis v. Williams, 194 Va. 541 , 74 S.E.2d 58, 1953 Va. LEXIS 116 (1953); Dickerson v. Miller, 196 Va. 659 , 85 S.E.2d 275, 1955 Va. LEXIS 136 (1955).

    Where plaintiff upon defendant’s invitation rode to work with him and voluntarily paid the defendant, without request, the equivalent of bus fare regularly for a period of more than one year, it was held that plaintiff was a paying passenger and not a “guest” within the meaning of this section. Davis v. Williams, 194 Va. 541 , 74 S.E.2d 58, 1953 Va. LEXIS 116 (1953).

    Payments made or services performed for transportation, to be sufficient to elevate one from a guest to a paying passenger, must be more than gratuitous gestures of reciprocal hospitality, or social amenities, extended without thought of bargaining for the transportation. Groome v. Birkhead, 214 Va. 429 , 201 S.E.2d 789, 1974 Va. LEXIS 154 (1974).

    It is not necessary that driver receive actual cash in return for transportation. —

    With respect to “payment” it is not necessary that the operator of the vehicle receive actual cash in return for the transportation supplied, since services or other benefits given by the occupant, if regarded by the parties as consideration inducing the offer of transportation, may be sufficient to entitle the occupant to the status of a paying passenger, as distinguished from a guest passenger. Dickerson v. Miller, 196 Va. 659 , 85 S.E.2d 275, 1955 Va. LEXIS 136 (1955); Hill Hdwe. Corp. v. Hesson, 198 Va. 425 , 94 S.E.2d 256, 1956 Va. LEXIS 225 (1956) (commented on in 13 Wash. & Lee L. Rev. 84 (1956); Richardson v. Charles, 201 Va. 426 , 111 S.E.2d 401, 1959 Va. LEXIS 245 (1959); Parker v. Leavitt, 201 Va. 919 , 114 S.E.2d 732, 1960 Va. LEXIS 178 (1960); Gilliland v. Singleton, 204 Va. 115 , 129 S.E.2d 641, 1963 Va. LEXIS 123 (1963).

    The payment referred to in this section does not, of course, have to be in cash in order to make the occupant a paying passenger rather than a guest. If a person bargains for services and the transportation is given in consideration thereof, the person performing the services is a paying passenger and not a guest passenger, but the services performed must be more than gratuitous gestures of reciprocal hospitality, or social amenities extended without thought of bargaining for the transportation. Smith v. Tatum, 199 Va. 85 , 97 S.E.2d 820, 1957 Va. LEXIS 166 (1957).

    And one who performs services in return for transportation is paying passenger. —

    If a person bargains for services and as consideration therefor offers transportation, the person performing or agreeing to perform the services and accepting such transportation is a paying passenger and not a guest passenger. Dickerson v. Miller, 196 Va. 659 , 85 S.E.2d 275, 1955 Va. LEXIS 136 (1955) (commented on in 13 Wash. & Lee L. Rev. 84 (1956)).

    Defendant, who was manager of a restaurant, by promising her transportation home, induced decedent to stay beyond her usual hours to clean up. Decedent was therefore a paying passenger. Dickerson v. Miller, 196 Va. 659 , 85 S.E.2d 275, 1955 Va. LEXIS 136 (1955).

    It is not necessary to prove that there was an express enforceable contract between the operator and the occupant of a motor vehicle resulting from considerations moving from one to the other to raise the status of the occupant from that of a guest to that of a paying passenger. However, mere giving and receiving of friendly and reciprocal benefits and amenities between the driver and occupant without any thought of creating a business or contractual relation is insufficient to change the status of a guest to that of a paying passenger within the meaning of this section. Hill Hdwe. Corp. v. Hesson, 198 Va. 425 , 94 S.E.2d 256, 1956 Va. LEXIS 225 (1956).

    But mere incidental benefit is not sufficient. —

    An incidental benefit resulting to the defendant from transportation is not sufficient to enlarge the liability from guest to passenger. The benefit to the defendant must be a consideration for the transportation. More than an incidental benefit must have induced the defendant to extend the ride. The benefits, in short, must be more than gratuitous gestures of reciprocal hospitality, or social amenities, extended without thought of bargaining for the transportation. Richardson v. Charles, 201 Va. 426 , 111 S.E.2d 401, 1959 Va. LEXIS 245 (1959).

    Owner does not become guest of one whom he allows to drive. —

    The owner of a car did not lose his character of host and become the guest of his companion when he permitted her to drive the car for her own pleasure. The change of places in the vehicle did not alter the relationship of host and guest, where the guest asked for and was granted the privilege of driving the car. There was no gratuitous undertaking on her part for the benefit of the owner but, rather, the acceptance of a favor from him, which was tendered because it gave her pleasure. Leonard v. Helms, 269 F.2d 48, 1959 U.S. App. LEXIS 3444 (4th Cir. 1959).

    Where the owner permitted another to operate his automobile but only on condition that the owner accompany the other, the owner did not become a “guest without payment” and thus could recover against the other upon proof of simple negligence in the operation of the automobile. Parker v. Leavitt, 201 Va. 919 , 114 S.E.2d 732, 1960 Va. LEXIS 178 (1960).

    A father-in-law who was riding with his daughter-in-law for the purpose of giving her a driver’s lesson, where she was driving under a learner’s permit, was not a paying passenger but a guest in the vehicle; and his administratrix could recover for his death. Smith v. Tatum, 199 Va. 85 , 97 S.E.2d 820, 1957 Va. LEXIS 166 (1957).

    The transportation of a mother by her daughter and the mother’s undertaking to purchase gasoline are mere gratuitous gestures of reciprocal hospitality extended in a family relationship; thence the mother is not a paying passenger in her daughter’s vehicle, within the meaning of this section. Groome v. Birkhead, 214 Va. 429 , 201 S.E.2d 789, 1974 Va. LEXIS 154 (1974).

    Fact that driver and passenger drank and dined together. —

    Where the purpose of a trip was purely business, the fact that the automobile driver and his passenger had a social drink and dined together during the course of the trip did not change the complexion of it. Richardson v. Charles, 201 Va. 426 , 111 S.E.2d 401, 1959 Va. LEXIS 245 (1959).

    “Car pool” arrangement. —

    Where plaintiff was one of three women who had entered into a “car pool” arrangement whereby each would furnish transportation alternately for a week at a time, and there was no dispute as to the business relationship between the parties nor doubt that by the arrangement they were thus compensated in a substantial business sense, plaintiff was not a “guest without payment” within the meaning of the statute. Gilliland v. Singleton, 204 Va. 115 , 129 S.E.2d 641, 1963 Va. LEXIS 123 (1963).

    Plaintiff held a paying passenger. —

    Under the circumstances, the plaintiff was not “a guest without payment” for her transportation within the meaning of this statute, but was a paying passenger. Gammon v. Hyde, 199 Va. 918 , 103 S.E.2d 221, 1958 Va. LEXIS 142 (1958).

    Defendant was a salesman of used cars and had sold one to plaintiff for delivery on a certain day. When delivery was delayed defendant offered to drive plaintiff in another car to a neighboring town where plaintiff had business. On the return trip the accident occurred. On these facts it was properly ruled as a matter of law that plaintiff was a passenger rather than a guest. The trip was clearly motivated by the business transaction between the parties, and it was of substantial benefit to defendant and his employer to furnish the transportation. Richardson v. Charles, 201 Va. 426 , 111 S.E.2d 401, 1959 Va. LEXIS 245 (1959).

    Where plaintiff gave defendant $.20 each day after riding home from work with defendant, and defendant accepted this payment as “bus fare to help cover the expenses,” plaintiff was clearly a paying passenger. Thoms v. Dowdy, 201 Va. 581 , 112 S.E.2d 868, 1960 Va. LEXIS 132 (1960).

    Plaintiff was held to be a paying passenger where she and defendant, friends of long standing, entered into an arrangement to defray in equal shares the cost of operating defendant’s automobile during the course of a planned excursion. Bernard v. Bohanan, 203 Va. 372 , 124 S.E.2d 191, 1962 Va. LEXIS 153 (1962).

    If the parties, by pre-trip arrangement, provided that the infant plaintiff would compensate the defendant for one half the expenses of operating the car on the trip, this would have been more than a mere social or incidental benefit to the defendant; it would have constituted a substantial pecuniary contribution to help defray such expenses, placing the infant plaintiff in the status of a paying passenger. Sturman v. Johnson, 209 Va. 227 , 163 S.E.2d 170, 1968 Va. LEXIS 220 (1968).

    Plaintiff held guest. —

    Where the evidence proved that the service to be rendered by the defendant in teaching plaintiff to park was a gratuity and a friendly act, plaintiff was a guest passenger and had no right to recover except upon proof of gross negligence. Jenkins v. Womack, 201 Va. 68 , 109 S.E.2d 97, 1959 Va. LEXIS 194 (1959).

    Where passenger is child. —

    The degree of care owed a child is proportionate to the apparent ability of the child in view of his age, maturity and intelligence to foresee and avoid the perils which may be encountered, if those perils are such as have become apparent to or should have been discovered by the operator of a motor vehicle in the exercise of ordinary care under all the circumstances. The younger the child and the less able to look out for himself the greater the care which may reasonably be expected of the motorist. This degree of care required of the operator of a motor vehicle to his guest who is a minor, however, does not relieve the injured minor from the necessity of proving gross negligence in order to recover for his injuries. Ruett v. Nottingham, 200 Va. 722 , 107 S.E.2d 402, 1959 Va. LEXIS 160 (1959).

    A child can become a guest in a motor vehicle and subject himself to the gross negligence rule only if he can knowingly and voluntarily accept an invitation to become a guest. Smith v. Kauffman, 212 Va. 181 , 183 S.E.2d 190, 1971 Va. LEXIS 326 (1971), limited, Harrison v. Shelton, 17 Va. Cir. 210, 1989 Va. Cir. LEXIS 196 (Northumberland County July 3, 1989).

    A child under the age of 14 years is incapable of knowingly and voluntarily accepting an invitation to become a guest in an automobile so as to subject himself to this negligence rule. Smith v. Kauffman, 212 Va. 181 , 183 S.E.2d 190, 1971 Va. LEXIS 326 (1971), limited, Harrison v. Shelton, 17 Va. Cir. 210, 1989 Va. Cir. LEXIS 196 (Northumberland County July 3, 1989).

    Must show cause of accident. —

    In order for plaintiff to prevail the evidence must show something more than that the accident may have resulted from one of two causes, for one of which the defendant is responsible, and for the other of which he is not. Grasty v. Tanner, 206 Va. 723 , 146 S.E.2d 252, 1966 Va. LEXIS 141 (1966).

    Testimony of witness who did not see accident. —

    A witness who did not actually see the motor vehicle in movement is incompetent to give testimony based on sound alone as to the speed at which it was moving. Meade v. Meade, 206 Va. 823 , 147 S.E.2d 171, 1966 Va. LEXIS 157 (1966).

    Assumption of risk. —

    A passenger in an automobile does not assume the risk of injury from the driver’s negligent operation of the vehicle merely because he knows that the driver has been drinking ardent spirits, where there is no evidence that the driver’s ability to drive was impaired thereby. Meade v. Meade, 206 Va. 823 , 147 S.E.2d 171, 1966 Va. LEXIS 157 (1966).

    A guest may be guilty of contributory negligence if he knows or reasonably should know that his driver had been drinking intoxicating liquor to an extent likely to affect the manner of his driving and voluntarily continues as a passenger after a reasonable opportunity to leave the automobile. Meade v. Meade, 206 Va. 823 , 147 S.E.2d 171, 1966 Va. LEXIS 157 (1966).

    Questions for court or for jury. —

    If the evidence is such that reasonable men should not differ as to the conclusions drawn from what has been proved, the question is one of law for the court; and conversely, if reasonable men may differ, then the question is one of fact for determination by a jury. Barham v. Virginia Nat'l Bank, 206 Va. 153 , 142 S.E.2d 569, 1965 Va. LEXIS 181 (1965).

    If reasonable men should not differ as to the conclusion to be drawn from the facts proved, the question becomes one of law for the court. Bond v. Joyner, 205 Va. 292 , 136 S.E.2d 903, 1964 Va. LEXIS 179 (1964); Scott v. Foley, 205 Va. 382 , 136 S.E.2d 849, 1964 Va. LEXIS 192 (1964).

    Burden of proof. —

    The burden is on the plaintiffs in an action by guest to establish how and why the accident occurred. Crabtree v. Dingus, 194 Va. 615 , 74 S.E.2d 54, 1953 Va. LEXIS 126 (1953); Hailey v. Johnson, 201 Va. 775 , 113 S.E.2d 664, 1960 Va. LEXIS 159 (1960).

    The burden is on plaintiff to prove by a preponderance of the evidence that the defendant’s negligent operation of the automobile proximately caused the accident and the resulting injuries. Smith v. Prater, 206 Va. 693 , 146 S.E.2d 179, 1966 Va. LEXIS 137 (1966).

    CIRCUIT COURT OPINIONS

    Driver’s contributory negligence and assumption of the risk defenses. —

    In suit by an administrator of a deceased passenger’s estate against an intoxicated driver, the court denied the passenger’s motion to preclude the driver’s contributory negligence and assumption of risk evidence since, under the facts, either could be a defense to driver. With respect to contributory negligence, the jury could reasonably conclude that the conduct of both the passenger and the driver amounted to willful and wanton negligence, and, (1) if so, the passenger would be barred from recovery, however, (2) if the jury found any lesser degree of negligence, or found that the passenger’s negligence had been superseded by her request to be allowed to remove herself from the driver’s car, then she would not be barred from recovery. Bane v. Mayes, 65 Va. Cir. 258, 2004 Va. Cir. LEXIS 274 (Roanoke County July 27, 2004).

    § 8.01-64. Liability for negligence of minor.

    Every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years who is not permitted under the provisions of § 46.2-335 to drive such a vehicle upon a highway, and any person who gives or furnishes a motor vehicle to such minor, shall be jointly or severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.

    History. Code 1950, § 8-646.2; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Automobiles, § 52.

    CASE NOTES

    Editor’s note.

    The case cited below was decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    Section must be strictly construed. —

    This section, while remedial, is in derogation of the common law and, therefore must be strictly construed. It must be presumed that the legislature acted with full knowledge of the strict interpretation that must be placed upon a statute of the nature of this section. Hannabass v. Ryan, 164 Va. 519 , 180 S.E. 416 , 1935 Va. LEXIS 226 (1935).

    The language “who is not permitted under the provisions of § 46.1-357 [§ 46.2-335] . . . To drive” deals solely with those not licensed by the State to operate a motor vehicle upon the streets and highways. Had the legislature intended to extend the liability of the owner of a motor vehicle to embrace those who may be prohibited from the operation of such a vehicle by a city ordinance it would have so expressed that intention in the statute. Hannabass v. Ryan, 164 Va. 519 , 180 S.E. 416 , 1935 Va. LEXIS 226 (1935) (decided prior to repeal of Title 46.1).

    § 8.01-65. Defense of lack of consent of owner.

    It shall be a valid defense to any action brought for the negligent operation of a motor vehicle for the owner of such vehicle to prove that the same was being driven or used without his knowledge or consent, express or implied, but the burden of proof thereof shall be on such owner.

    History. Code 1950, § 8-646.8; 1977, c. 617.

    REVISERS’ NOTE

    For clarification, the word “such” which preceded the word “action” in the second line of former § 8-646.8 has been deleted and the language “brought for the negligent operation of a motor vehicle” has been inserted following “action.”

    § 8.01-66. Recovery of damages for loss of use of vehicle.

    1. Whenever any person is entitled to recover for damage to or destruction of a motor vehicle, he shall, in addition to any other damages to which he may be legally entitled, be entitled to recover the reasonable cost which was actually incurred in hiring a comparable substitute vehicle for the period of time during which such person is deprived of the use of his motor vehicle. However, such rental period shall not exceed a reasonable period of time for such repairs to be made or if the original vehicle is a total loss, a reasonable time to purchase a new vehicle. Nothing herein contained shall relieve the claimant of the duty to mitigate damages.
    2. Whenever any insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 or any self-insured company refuses or fails to provide a comparable temporary substitute vehicle to any person entitled to recover the actual cost of hiring a substitute vehicle as set forth in subsection A, and if the trial judge of a court of proper jurisdiction subsequently finds that such refusal or failure was not made in good faith, such company shall be liable to that person in the amount of $500 or double the amount of the rental cost he is entitled to recover under subsection A, whichever amount is greater. If the trial court finds that an action brought against an insurance company or any self-insured company under subsection B is frivolous, or not to have been brought in good faith, the court may in its discretion require the plaintiff to pay the reasonable attorney’s fees, not to exceed $350, incurred by the defendant in defending the action. This section shall in no way preclude any party from seeking such additional common law remedies as might otherwise be available.

    History. Code 1950, § 8-646.9; 1975, c. 478; 1977, c. 617; 1979, c. 499; 1986, c. 296; 1987, c. 116; 1989, c. 348; 2010, c. 343.

    Cross references.

    As to the insurance of state motor vehicles, see § 2.2-1838.

    The 2010 amendments.

    The 2010 amendment by c. 343 substituted “$350” for “$200” in the second sentence of subsection B, and made minor stylistic changes.

    Law Review.

    For survey of Virginia law on insurance for the year 1974-1975, see 61 Va. L. Rev. 1759 (1975).

    § 8.01-66.1. Remedy for arbitrary refusal of motor vehicle insurance claim.

    1. Whenever any insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 denies, refuses or fails to pay to its insured a claim of $3,500 or less in excess of the deductible, if any, under the provisions of a policy of motor vehicle insurance issued by such company to the insured and it is subsequently found by the judge of a court of proper jurisdiction that such denial, refusal or failure to pay was not made in good faith, the company shall be liable to the insured in an amount double the amount otherwise due and payable under the provisions of the insured’s policy of motor vehicle insurance, together with reasonable attorney’s fees and expenses.The provisions of this subsection shall be construed to include an insurance company’s refusal or failure to pay medical expenses to persons covered under the terms of any medical payments coverage extended under a policy of motor vehicle insurance, when the amount of the claim therefor is $3,500 or less and the refusal was not made in good faith.
    2. Notwithstanding the provisions of subsection A, whenever any insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 denies, refuses or fails to pay to a third party claimant, on behalf of an insured to whom such company has issued a policy of motor vehicle liability insurance, a claim of $3,500 or less made by such third party claimant and if the judge of a court of proper jurisdiction finds that the insured is liable for the claim, the third party claimant shall have a cause of action against the insurance company. If the judge finds that such denial, refusal or failure to pay was not made in good faith, the company, in addition to the liability assumed by the company under the provisions of the insured’s policy of motor vehicle liability insurance, shall be liable to the third party claimant in an amount double the amount of the judgment awarded the third party claimant, together with reasonable attorney’s fees and expenses.
    3. Notwithstanding the provisions of subsections A and B whenever any person who has paid a fee to the Department of Motor Vehicles to register an uninsured motor vehicle pursuant to § 46.2-706 or any person who has furnished proof of financial responsibility in lieu of obtaining a policy or policies of motor vehicle liability insurance pursuant to the provisions of Title 46.2 or any person who is required and has failed either to pay such fee or to furnish such proof pursuant to the provisions of Title 46.2 denies, refuses or fails to pay to a claimant a claim of $3,500 or less made by such claimant as a result of a motor vehicle accident; and if the trial judge of a court of proper jurisdiction finds that such denial, refusal or failure to pay was not made in good faith, such person shall be liable to the claimant in an amount double the amount otherwise due and payable together with reasonable attorney’s fees and expenses.For the purposes of this subsection C “person” shall mean and include any natural person, firm, partnership, association or corporation.
      1. Whenever a court of proper jurisdiction finds that an insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 denies, refuses or fails to pay to its insured a claim of more than $3,500 in excess of the deductible, if any, under the provisions of a policy of motor vehicle insurance issued by such company to the insured and it is subsequently found by the judge of a court of proper jurisdiction that such denial, refusal or failure to pay was not made in good faith, the company shall be liable to the insured in the amount otherwise due and payable under the provisions of the insured’s policy of motor vehicle insurance, plus interest on the amount due at double the rate provided in § 6.2-301 from the date that the claim was submitted to the insurer or its authorized agent, together with reasonable attorney’s fees and expenses. D. 1. Whenever a court of proper jurisdiction finds that an insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 denies, refuses or fails to pay to its insured a claim of more than $3,500 in excess of the deductible, if any, under the provisions of a policy of motor vehicle insurance issued by such company to the insured and it is subsequently found by the judge of a court of proper jurisdiction that such denial, refusal or failure to pay was not made in good faith, the company shall be liable to the insured in the amount otherwise due and payable under the provisions of the insured’s policy of motor vehicle insurance, plus interest on the amount due at double the rate provided in § 6.2-301 from the date that the claim was submitted to the insurer or its authorized agent, together with reasonable attorney’s fees and expenses.
      2. The provisions of this subsection shall be construed to include an insurance company’s refusal or failure to pay medical expenses to persons covered under the terms of any medical payments coverage extended under a policy of motor vehicle insurance when the refusal was not made in good faith.

    History. 1977, c. 621; 1979, c. 521; 1980, c. 437; 1989, c. 698; 1991, c. 155; 1997, c. 401; 2002, c. 631.

    REVISERS’ NOTE

    The generic terms “fiduciary” and “person under a disability” have been substituted for various individuals specified in former sections of the predecessor Title 8 article.

    Editor’s note.

    In subdivision D 1, “6.2-301” was substituted for “6.1-330.53,” effective October 1, 2010, to conform to the recodification of Title 6.1 by Acts. 2010, c. 794.

    The 2002 amendments.

    The 2002 amendment by c. 631 substituted “$3,500” for “$2,500” five times throughout the section.

    Law Review.

    For survey of Virginia law on insurance for the year 1976-77, see 63 Va. L. Rev. 1448 (1977).

    For 2000 survey of Virginia insurance law, see 34 U. Rich. L. Rev. 883 (2000).

    Michie’s Jurisprudence.

    For related discussion, see 10B M.J. Insurance, § 54.

    CASE NOTES

    Standard of reasonableness. —

    This is a remedial statute and operates as a punitive statute in the same manner as § 38.2-209 and the standard of reasonableness applied in using that statute should be used when applying this statute. Nationwide Mut. Ins. Co. v. St. John, 259 Va. 71 , 524 S.E.2d 649, 2000 Va. LEXIS 2 (2000).

    An insured’s evidentiary burden under this remedial standard is the preponderance of the evidence standard. Nationwide Mut. Ins. Co. v. St. John, 259 Va. 71 , 524 S.E.2d 649, 2000 Va. LEXIS 2 (2000).

    For discussion of this section and how it relates to tort of bad faith failure to settle an insurance claim, see A & E Supply Co. v. Nationwide Mut. Fire Ins. Co., 612 F. Supp. 760, 1985 U.S. Dist. LEXIS 18682 (W.D. Va. 1985), rev'd, 798 F.2d 669, 1986 U.S. App. LEXIS 28177 (4th Cir. 1986).

    When duty of good faith arises. —

    Fact that interest and costs are measured from the date of the claim shows that the General Assembly intended the duty of good faith to arise when the insured is presently owed under the terms of the policy; in an uninsured motorist policy context, that does not occur when the insured requests damages the insurer has no present obligation to pay, but rather when the insured obtains judgment against the uninsured tortfeasor. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

    Uninsured motorist carrier’s duty to settle. —

    Statutory framework and legislative history confirm that uninsured motorist (UM) carriers have no duty to settle prior to trial, and reading the statutes in harmony indicates that the UM carrier’s decision to settle pretrial is similarly discretionary; a carrier may settle prior to the insured obtaining judgment, but it has no duty to do so. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

    Duty of uninsured motorist carrier. —

    Insured is required to obtain a judgment against the uninsured tortfeasor before the uninsured motorist (UM) carrier is obligated to pay the insured on any such policy; because there is no valid UM claim until judgment is obtained, there is also no duty for a UM carrier to pay or settle a demand for payment under the policy until judgment is obtained. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

    No new duty created. —

    Rather than creating a new duty, the statute incorporates the duties already established and provides a remedy for the bad faith violation of contractual duties; an insured does not have an existing right to payment from his uninsured motorist (UM) carrier until he meets certain conditions, and thus an insured does not have a UM claim until he obtains judgment, and further that there cannot be a bad faith denial of a demand for payment under a UM policy before the demand ripens into a claim. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

    Claim as defined in statute. —

    Request for payment is not a claim subject to a covenant of good faith unless the insurer has a present contractual liability to pay it, and a claim as defined in the statute must arise out of the occurrence of the contingency or loss covered by the insurance policy; the contingency or loss covered by a uninsured motorist policy is payment to the insured of all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured or underinsured vehicle, and that contingency or loss does not occur until the insured obtains judgment against the uninsured tortfeasor. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

    Application to uninsured motorist carriers. —

    Uninsured motorist (UM) policies are motor vehicle insurance policies and the statute therefore applies to UM carriers. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

    Remedy in uninsured motorist cases. —

    Statute does not create a duty for uninsured motorist (UM) carriers to settle a case prior to trial, but rather creates a remedy for the conduct of UM carriers that refuse in bad faith to pay once the insured has obtained judgment. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

    Enhanced recovery in uninsured motorist cases. —

    Breach occurs when an uninsured motorist (UM) carrier arbitrarily refuses to pay once judgment has been obtained; an insured may recover not only the amount due, but also double interest and attorneys’ fees and costs, and thus the statute creates an enhanced recovery for an insured in proper UM bad faith actions. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

    When insured entitled to payment and relation to bad faith. —

    Insured is not entitled to payment from the uninsured motorist (UM) carrier until she obtains judgment, and any burden of litigation costs in the liability trial which may be incurred by an insured pursuing an uninsured tortfeasor is required by statute prior to a UM carrier becoming obligated to pay its insured under the terms of the UM policy; it is not the product of a UM carrier’s bad faith and requires no remedy under the statute. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

    When duty of good faith arises in uninsured motorist cases. —

    Neither the Virginia Unfair Trade Practices Act nor the statutory history of the statute indicates the existence of a pretrial duty of good faith in the context of uninsured motorist insurance, because each of those provisions addresses certain conduct by carriers vis-á-vis claims. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

    CIRCUIT COURT OPINIONS

    Sanctions. —

    Statutory remedy provides a sanction, and trial courts routinely hear sanctions motions as part of the case in which the questioned conduct took place. Chevalier-Seawell v. Mangum, 90 Va. Cir. 420, 2015 Va. Cir. LEXIS 146 (Norfolk Aug. 3, 2015).

    Discovery. —

    Because insureds were not required to pursue their claims for bad faith separately, the insured’s discovery was not beyond the scope of Va. Sup. Ct. R. 4:1; the insured pleaded her bad faith claim by motion filed, and trial courts had discretion to permit discovery relating only to a motion. Chevalier-Seawell v. Mangum, 90 Va. Cir. 420, 2015 Va. Cir. LEXIS 146 (Norfolk Aug. 3, 2015).

    Construction. —

    Subdivision D 1 does allow a circuit court to provide relief to an insured when he or she can prove that his or her underinsured motorist carrier failed to act in good faith relating to his or her claim before trial. Chevalier-Seawell v. Mangum, 90 Va. Cir. 420, 2015 Va. Cir. LEXIS 146 (Norfolk Aug. 3, 2015).

    Insured was not entitled to bad faith damages, costs, and attorney’s fees against her underinsured motorist carrier because the carrier was not liable to the insured unless and until she was legally entitled to collect against the underinsured motorist, there was no authority to proceed against the carrier for bad faith, and the underinsured statute did not overrule or change the Virginia Supreme Court’s holdings. Conner v. Glasgow, 92 Va. Cir. 191, 2015 Va. Cir. LEXIS 230 (Spotsylvania County Nov. 5, 2015), aff'd, No. 160611, 2017 Va. Unpub. LEXIS 10 (Va. Apr. 27, 2017).

    § 8.01-66.1:1. Subrogation claims by underinsured motorist benefits insurer.

    1. Any underinsured motorist benefits insurer paying such benefits to an insured, by way of settlement or payment pursuant to a judgment, shall have no right of subrogation against any individual or entity who settled with the underinsured motorist benefits insurer’s insured pursuant to subsection K of § 38.2-2206 unless the underinsured motorist failed to reasonably cooperate in the defense of any lawsuit brought against him. An underinsured motorist shall be presumed to have failed to reasonably cooperate if he fails or refuses:
      1. To attend his deposition or trial if subpoenaed to appear at least 21 days in advance of either event;
      2. To assist in responding to written discovery;
      3. To meet with defense counsel for a reasonable period of time after reasonable notice, by phone or in person, within 21 days of being served with any lawsuit and again prior to his deposition and trial; or
      4. To notify counsel for the underinsured motorist benefits insurer of any change in address.The underinsured motorist may rebut the presumption that he failed to reasonably cooperate. If the court finds that the underinsured motorist’s failure to cooperate was not unreasonable or that the underinsured motorist otherwise acted in good faith in attempting to comply with his duty to reasonably cooperate with the underinsured motorist benefits insurer, then the underinsured motorist benefits insurer will not regain its right of subrogation.
    2. The underinsured motorist benefits insurer seeking the cooperation of the underinsured motorist shall pay the reasonable costs and expenses related to procuring such cooperation, including any travel costs if the underinsured motorist resides more than 100 miles from the location of his deposition or trial. Travel costs may be considered by the court in determining whether the underinsured motorist’s failure to cooperate was unreasonable or not.
    3. If the court finds that the underinsured motorist satisfied his duty to cooperate with the underinsured motorist benefits insurer or that his failure to do so was not unreasonable, then the court may award him his costs in defending such subrogation action, including reasonable attorney fees.

    History. 2015, cc. 584, 585.

    Editor’s note.

    Acts 2015, cc. 584 and 585, cl. 2 provides: “That the provisions of this act shall apply to policies issued or renewed on or after January 1, 2016.”

    Article 7.1. Lien for Hospital, Medical and Nursing Services.

    § 8.01-66.2. Lien against person whose negligence causes injury.

    Whenever any person sustains personal injuries caused by the alleged negligence of another and receives treatment in any hospital, public or private, or nursing home, or receives medical attention or treatment from any physician, or receives nursing service or care from any registered nurse, or receives physical therapy treatment from any registered physical therapist in this Commonwealth, or receives medicine from a pharmacy, or receives any emergency medical services and transportation provided by an emergency medical services vehicle, such hospital, nursing home, physician, nurse, physical therapist, pharmacy or emergency medical services provider or agency shall each have a lien for the amount of a just and reasonable charge for the service rendered, but not exceeding $2,500 in the case of a hospital or nursing home, $750 for each physician, nurse, physical therapist, or pharmacy, and $200 for each emergency medical services provider or agency on the claim of such injured person or of his personal representative against the person, firm, or corporation whose negligence is alleged to have caused such injuries.

    History. Code 1950, § 32-138; 1979, c. 722; 1981, c. 313; 1988, cc. 505, 544; 1995, cc. 470, 550, 669; 2003, cc. 455, 525; 2010, c. 343; 2015, cc. 502, 503; 2017, c. 603.

    The 2003 amendments.

    The 2003 amendment by c. 455 inserted “or receives any ambulance service,” deleted “or” following “physical therapist,” inserted “or ambulance service” preceding “shall have,” deleted “and” preceding “$500,” and inserted “and $200 for each ambulance service.”

    The 2003 amendment by c. 525 inserted “or nursing home” following ‘’private,” “nursing home” following “such hospital,” “or nursing home” following “a hospital.”

    The 2010 amendments.

    The 2010 amendment by c. 343 substituted “$2,500” for “$2,000” and “$750” for “$500.”

    The 2015 amendments.

    The 2015 amendments by cc. 502 and 503 are identical, and twice substituted “emergency medical services and transportation provided by an emergency medical services vehicle” for “ambulance service”; and substituted “emergency medical services agency providing emergency medical services or emergency medical services vehicle transportation” for “ambulance service”; and made minor stylistic changes.

    The 2017 amendment.

    The 2017 amendment by c. 603 substituted “provider or agency” for “and transportation provided by an emergency medical services vehicle” and substituted “provider or agency” for “agency providing emergency medical services or emergency medical services vehicle transportation.”

    Law Review.

    For article, “How Bankruptcy Exemptions Work: Virginia as an Illustration of Why the ‘Opt Out’ Clause Was a Bad Idea,” see 8 G.M.U. L. Rev. 1 (1985).

    Michie’s Jurisprudence.

    For related discussion, see 9B M.J. Hospitals and Sanitariums, § 4.

    CASE NOTES

    Debtor’s exemption considered in creating lien. —

    The General Assembly was mindful of the debtor’s exemption when it prescribed and fixed in favor of hospitals and doctors the lien rights against personal injury proceeds set forth in this section. Johnston Mem. Hosp. v. Hess, 21 Bankr. 465, 1982 Bankr. LEXIS 4319 (Bankr. W.D. Va. 1982).

    This article merely creates a method of payment to hospitals, physicians and nurses, which, in effect, makes any recovery in a death action subject to the limitations set forth in these sections. The only effect of this article is to protect pro tanto the rights of those who have rendered services to the injured person pending his demise. In other words, it in effect adds their particular condition to the extent specified in the statute, to those other beneficiaries mentioned in the statutes creating the cause of action and regulating the distribution of the recovery. Holley v. The Manfred Stansfield, 186 F. Supp. 805, 1960 U.S. Dist. LEXIS 4249 (E.D. Va. 1960) (decided under corresponding provisions of prior law).

    CIRCUIT COURT OPINIONS

    Statutory liens payable despite bankruptcy discharge. —

    In a personal injury suit against a driver, plaintiff’s medical bills, which had been discharged in a Chapter 7 bankruptcy, were admissible to show the extent of her pain, suffering, and because a bankruptcy discharge was within the scope of the collateral source rule. However, after paying creditors holding liens and an assignment of benefits on the proceeds of any tort recovery, plaintiff had to pay the balance of any award of medical bills to the health care providers in pro rata shares. Dodd v. Lang, 71 Va. Cir. 235, 2006 Va. Cir. LEXIS 151 (Roanoke June 29, 2006).

    § 8.01-66.3. Lien inferior to claim of attorney or personal representative.

    The lien provided for in § 8.01-66.2 shall be of inferior dignity to the claim or lien of the attorney of such injured person or of his personal representative for professional services for representing such injured person or his personal representative in his claim or suit for damages for such personal injuries.

    History. Code 1950, § 32-139; 1979, c. 722.

    § 8.01-66.4. Subrogation.

    Any municipal corporation or any person, firm or corporation who may pay the charges for which a lien is provided in § 8.01-66.2 shall be subrogated to such lien.

    History. Code 1950, § 32-140; 1979, c. 722.

    Michie’s Jurisprudence.

    For related discussion, see 18 M.J. Subrogation, § 1.

    CASE NOTES

    For case holding invalid a municipal personnel rule allowing the municipality to obtain greater rights of subrogation than permitted by a former version of this section, see City of Richmond v. Hanes, 203 Va. 102 , 122 S.E.2d 895, 1961 Va. LEXIS 227 (1961) (decided under prior law).

    § 8.01-66.5. Written notice required.

    1. No lien provided for in § 8.01-66.2 , 8.01-66.9 , or 19.2-368.15 shall be created or become effective in favor of the Commonwealth, an institution thereof, or a hospital, nursing home, physician, nurse, or physical therapist, or emergency medical services and transportation provided by an emergency medical services vehicle, unless and until a written notice of lien setting forth the name of the Commonwealth or the institution, hospital, nursing home, physician, nurse, physical therapist, or emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation and the name of the injured person has been served upon or given to the person, firm, or corporation whose negligence is alleged to have caused such injuries, or to the attorney for the injured party, or to the injured party. Such written notice of lien shall not be required if the attorney for the injured party knew that medical services were either provided or paid for by the Commonwealth.
    2. In any action for personal injuries or wrongful death against a nursing home or its agents, if the Department of Medical Assistance Services has paid for any health care services provided to the injured party or decedent relating to the action, the injured party or personal representative shall, within 60 days of filing a lawsuit or 21 days of determining that the Department of Medical Assistance Services has paid for such health care services, whichever is later, give written notice to the Department of Medical Assistance Services that the lawsuit has been filed. The Department of Medical Assistance Services shall provide a written response, stating the amount of the lien as of the date of their response, within 60 days of receiving a request for that information from the injured party or personal representative.

    History. Code 1950, § 32-142; 1979, c. 722; 1980, c. 623; 1983, c. 263; 1988, c. 544; 1998, c. 183; 2003, cc. 455, 525; 2013, c. 273; 2015, cc. 502, 503.

    The 2003 amendments.

    The 2003 amendment by c. 455, in present subsection A, twice substituted “physical therapist, or ambulance service” for “or physical therapist.”

    The 2003 amendment by c. 525 inserted the subsection A designation and inserted “nursing home” twice therein; and added subsection B.

    The 2013 amendments.

    The 2013 amendment by c. 273 substituted “§ 8.01-66.2 , 8.01-66.9 , or 19.2-368.15 ” for “§ 8.01-66.2 or § 8.01-66.9 ” in the first sentence of subsection A.

    The 2015 amendments.

    The 2015 amendments by cc. 502 and 503 are identical, and in subsection A, substituted “emergency medical services and transportation provided by an emergency medical services vehicle” for “ambulance service” preceding “unless” and substituted “emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation” for “ambulance service” preceding “and the name”; and made stylistic changes.

    CASE NOTES

    Lien may be perfected by giving written notice. —

    This section provides that the lien may be perfected by giving written notice to the injured person or his attorney; there is no requirement that suit must be pending against the alleged tort-feasor when the lien is perfected. Commonwealth v. Lee, 239 Va. 114 , 387 S.E.2d 770, 6 Va. Law Rep. 1064, 1990 Va. LEXIS 14 (1990).

    § 8.01-66.6. Liability for reasonable charges for services.

    The notice set forth in subsection A of § 8.01-66.5 , when served upon or given to the person, firm or corporation whose negligence is alleged to have caused injuries or to the attorney for the injured party, shall have the effect of making such person, firm, corporation or attorney liable for the reasonable charges for the services rendered the injured person to the extent of the amount paid to or received by such injured party or his personal representative exclusive of attorney’s fees, but, except in liens created under § 8.01-66.9 or 19.2-368.15 , not in excess of the maximum amounts prescribed in § 8.01-66.2 .

    History. Code 1950, § 32-143; 1979, c. 722; 1980, c. 623; 2003, c. 525; 2013, c. 273.

    The 2003 amendments.

    The 2003 amendment by c. 525 inserted “subsection A of” near the beginning.

    The 2013 amendments.

    The 2013 amendment by c. 273 inserted “or 19.2-368.15 ” near the end of the section.

    § 8.01-66.7. Hearing and disposal of claim of unreasonableness.

    If the injured person questions the reasonableness of the charges made by a hospital, nurse, physician, or emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation claiming a lien pursuant to § 8.01-66.2 , the injured person or the hospital, physician, nurse, or emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation may file, in the court that would have jurisdiction of such claim if such claim were asserted against the injured person by such hospital, physician, nurse, or emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation, a petition setting forth the facts. The court shall hear and dispose of the matter in a summary way after five days’ notice to the other party in interest.

    History. Code 1950, § 32-145; 1979, c. 722; 2003, c. 455; 2015, cc. 502, 503.

    The 2003 amendments.

    The 2003 amendment by c. 455 substituted “physician or ambulance service” for “or physician,” and twice substituted “nurse or ambulance service” for “or, nurse.”

    The 2015 amendments.

    The 2015 amendments by cc. 502 and 503 are identical, and substituted “emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation” for “ambulance service” throughout the section.

    § 8.01-66.8. Petition to enforce lien.

    If suit is instituted by an injured person or his personal representative against the person, firm, or corporation allegedly causing the person’s injuries, a hospital, nursing home, physician, nurse, or emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation, in lieu of proceeding according to §§ 8.01-66.5 to 8.01-66.7 , may file in the court wherein such suit is pending a petition to enforce the lien provided for in § 8.01-66.2 or 8.01-66.9 . Such petition shall be heard and disposed of in a summary way.

    History. Code 1950, § 32-146; 1979, c. 722; 1980, c. 623; 2003, cc. 455, 525; 2015, cc. 502, 503.

    The 2003 amendments.

    The 2003 amendment by c. 455 substituted “physician, nurse, or ambulance service” for “physician or nurse.”

    The 2003 amendment by c. 525 inserted “nursing home.”

    The 2015 amendments.

    The 2015 amendments by cc. 502 and 503 are identical, and substituted “emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation” for “ambulance service” and made stylistic changes.

    § 8.01-66.9. Lien in favor of Commonwealth, its programs, institutions or departments on claim for personal injuries.

    Whenever any person sustains personal injuries and receives treatment in any hospital, public or private, or nursing home, or receives medical attention or treatment from any physician, or receives nursing services or care from any registered nurse in this Commonwealth, or receives pharmaceutical goods or any type of medical or rehabilitative device, apparatus, or treatment which is paid for pursuant to the Virginia Medical Assistance Program, the State/Local Hospitalization Program and other programs of the Department of Medical Assistance Services, the Maternal and Child Health Program, or the Children’s Specialty Services Program, or provided at or paid for by any hospital or rehabilitation center operated by the Commonwealth, the Department for Aging and Rehabilitative Services or any public institution of higher education, the Commonwealth shall have a lien for the total amount paid pursuant to such program, and the Commonwealth or such Department or institution shall have a lien for the total amount due for the services, equipment or devices provided at or paid for by such hospital or center operated by the Commonwealth or such Department or institution, or any portion thereof compromised pursuant to the authority granted under § 2.2-514, on the claim of such injured person or of his personal representative against the person, firm, or corporation who is alleged to have caused such injuries.

    The Commonwealth or such Department or institution shall also have a lien on the claim of the injured person or his personal representative for any funds which may be due him from insurance moneys received for such medical services under the injured party’s own insurance coverage or through an uninsured or underinsured motorist insurance coverage endorsement. The lien granted to the Commonwealth for the total amounts paid pursuant to the Virginia Medical Assistance Program, the State/Local Hospitalization Program and other programs of the Department of Medical Assistance Services, the Maternal and Child Health Program, or the Children’s Specialty Services Program shall have priority over the lien for the amounts due for services, equipment or devices provided at a hospital or center operated by the Commonwealth. The Commonwealth’s or such Department’s or institution’s lien shall be inferior to any lien for payment of reasonable attorney’s fees and costs, but shall be superior to all other liens created by the provisions of this chapter and otherwise. Expenses for reasonable legal fees and costs shall be deducted from the total amount recovered. The amount of the lien may be compromised pursuant to § 2.2-514.

    The court in which a suit by an injured person or his personal representative has been filed against the person, firm or corporation alleged to have caused such injuries or in which such suit may properly be filed, may, upon motion or petition by the injured person, his personal representative or his attorney, and after written notice is given to all those holding liens attaching to the recovery, reduce the amount of the liens and apportion the recovery, whether by verdict or negotiated settlement, between the plaintiff, the plaintiff’s attorney, and the Commonwealth or such Department or institution as the equities of the case may appear, provided that the injured person, his personal representative or attorney has made a good faith effort to negotiate a compromise pursuant to § 2.2-514. The court shall set forth the basis for any such reduction in a written order.

    History. Code 1950, § 32-139.1; 1972, c. 481; 1974, c. 518; 1979, c. 722; 1981, c. 562; 1982, c. 491; 1983, c. 263; 1984, c. 767; 1985, c. 580; 1986, c. 238; 1988, c. 544; 1989, c. 624; 1992, c. 104; 2003, c. 525; 2012, cc. 803, 835.

    Editor’s note.

    At the direction of the Virginia Code Commission, “public institution of higher education” was substituted for “state institution of higher education” in the first paragraph to conform to Acts 2016, c. 588.

    The 2003 amendments.

    The 2003 amendment by c. 525 inserted “or nursing home” near the beginning of the first paragraph.

    The 2012 amendments.

    The 2012 amendments by cc. 803 and 835, cl. 59, are identical, and substituted “Department for Aging and Rehabilitative Services” for “Department of Aging and Rehabilitative Services” in the first paragraph.

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Damages, § 26.

    CASE NOTES

    Purpose. —

    The legislative purpose of this section was to secure to the public treasury such recompense as could be found, where public funds had been expended for the treatment of tortious injuries. Commonwealth v. Lee, 239 Va. 114 , 387 S.E.2d 770, 6 Va. Law Rep. 1064, 1990 Va. LEXIS 14 (1990).

    Commonwealth granted lien against recovery from tortfeasor. —

    When the Commonwealth pays for or provides medical services to an indigent person necessitated by a tortious injury, this section creates a lien in favor of the Commonwealth for the amount of those services on any recovery from the tortfeasor by the injured party. Commonwealth v. Huynh, 262 Va. 165 , 546 S.E.2d 677, 2001 Va. LEXIS 68 (2001).

    Terms “any person” and “claim of such injured person.” —

    The term “any person” in this section is not limited in scope to person sui juris and includes infants within its plain meaning. Likewise, the phrase “claim of such injured person” means precisely what it purports to say; therefore, this section imposes the Commonwealth’s lien upon the injured person’s claim against the alleged tort-feasor, regardless of the nature of the claim. Commonwealth v. Lee, 239 Va. 114 , 387 S.E.2d 770, 6 Va. Law Rep. 1064, 1990 Va. LEXIS 14 (1990).

    Court does not have authority to discharge lienholder’s underlying debt. —

    The final sentence of this section does not give the court authority to discharge the lienholder’s underlying debt, except to subject it to a credit for the amount apportioned to it in the settlement. Rector & Visitors of UVA v. Harris, 239 Va. 119 , 387 S.E.2d 772, 6 Va. Law Rep. 1070, 1990 Va. LEXIS 10 (1990) (decided under version of section prior to 1989 amendment).

    Authority of trial court to apportion recovery. —

    No language in this statute suggests that the Commonwealth should be permitted to enforce its lien in its entirety if, in a particular case, this would result in the injured party being denied a just recovery for her injuries or her attorneys failing to receive reasonable compensation for the services they rendered to obtain that recovery; rather, the statute expressly directs the trial court to “apportion the recovery, . . . as the equities of the case may appear.” Commonwealth v. Huynh, 262 Va. 165 , 546 S.E.2d 677, 2001 Va. LEXIS 68 (2001).

    Trial court must allot some portion of recovery to Commonwealth. —

    It is apparent that in order to divide and assign a just portion of the recovery between the injured party, the injured party’s attorney and the Commonwealth, the General Assembly could not have intended for the trial court to wholly disregard the claim of the Commonwealth in order to benefit the injured party or his attorneys; a trial court must assign or allot some portion of the recovery to the Commonwealth. Commonwealth v. Huynh, 262 Va. 165 , 546 S.E.2d 677, 2001 Va. LEXIS 68 (2001).

    Determination of reasonable attorney’s fee. —

    Although the Commonwealth’s lien is statutorily “inferior” to any lien for the payment of “reasonable” attorney’s fees, such fees are not immune from apportionment under this section; rather, in apportioning the recovery, the trial court is required to determine the reasonable attorney’s fees after considering the circumstances of the particular case, including, but not limited to, the efforts expended in obtaining the recovery for the injured party, the amount of the recovery and the amount of the Commonwealth’s lien against that recovery. In making this determination, the trial court may reduce, but not eliminate, the fee provided for in the contract for legal services between the injured party and the attorneys, in order to provide equitable portions of the recovery to the injured party, the injured party’s attorneys and the Commonwealth. Commonwealth v. Huynh, 262 Va. 165 , 546 S.E.2d 677, 2001 Va. LEXIS 68 (2001).

    Error to award full attorney’s fees and nothing to Commonwealth. —

    A trial court erred in failing to award some portion of an injured party’s recovery to the Commonwealth while providing the plaintiff’s attorneys the full amount of their contractual fee, particularly in light of the fact that both the Commonwealth and the plaintiff’s attorneys conceded that the portion of the recovery afforded to the plaintiff under the trial court’s apportionment provided her with less than complete relief and was inadequate to meet her expected future needs. Commonwealth v. Huynh, 262 Va. 165 , 546 S.E.2d 677, 2001 Va. LEXIS 68 (2001).

    Shares of recovery apportioned immune from claims of other parties. —

    When a court, acting pursuant to the final sentence of this section, apportions a recovery between a plaintiff, the plaintiff’s attorney, and the Commonwealth or its institutions, that apportionment is binding upon the parties whose claims were adjudicated in the apportionment proceeding, provided such parties had proper notice. The shares of the recovery thus apportioned are thereafter immune from the claims of the other parties to the apportionment, although such claims, subject to credits resulting from the apportionment, may be enforced against other property. Rector & Visitors of UVA v. Harris, 239 Va. 119 , 387 S.E.2d 772, 6 Va. Law Rep. 1070, 1990 Va. LEXIS 10 (1990).

    Authority of Attorney General to reduce or eliminate lien. —

    Under the authority of former § 2.1-127 (see now § 2.2-514), the Attorney General may reduce or eliminate a claim of the Commonwealth, and the amount of the Commonwealth’s lien created by this section would be reduced or eliminated correspondingly. Commonwealth v. Huynh, 262 Va. 165 , 546 S.E.2d 677, 2001 Va. LEXIS 68 (2001).

    Sovereign immunity applied to action against Commonwealth. —

    Bar of sovereign immunity applied to declaratory judgment action because the Commonwealth did not waive that defense in the context of a declaratory judgment action within the purview of § 8.01-66.9 .Afzall v. Commonwealth, 273 Va. 226 , 639 S.E.2d 279, 2007 Va. LEXIS 3 (2007).

    Amendment vested judge authority to compromise and reduce Commonwealth’s lien. —

    The effect of the 1981 amendment of this section was to vest in the trial judge, in the circumstances specified by the statute, the authority, otherwise vested in the Attorney General, the Governor, and the appropriate department head by former § 2.1-127 [see now § 2.2-514], to compromise and reduce the Commonwealth’s lien. The purpose of the amendment was to reduce expense and delay, to avoid litigation, and to promote settlements. Commonwealth v. Smith, 239 Va. 108 , 387 S.E.2d 767, 6 Va. Law Rep. 1056, 1990 Va. LEXIS 20 (1990).

    Purpose of amendment met only if statute construed to promote settlements. —

    The legislative purpose of the 1981 amendment of this section is met only if the statute is construed to promote, not to frustrate, settlements. Commonwealth v. Smith, 239 Va. 108 , 387 S.E.2d 767, 6 Va. Law Rep. 1056, 1990 Va. LEXIS 20 (1990).

    Decision to reduce lien affirmed despite prior accepted offer of settlement. —

    Supreme Court affirmed trial court’s decision to reduce Commonwealth’s lien for plaintiff’s medical care expenses, despite fact that the accepted offer of settlement had been proposed several years prior to the date for trial, where the lower court found that the offer was not acceptable until the court had reduced the amount of the Commonwealth’s lien pursuant to the provisions of this section. Commonwealth v. Smith, 239 Va. 108 , 387 S.E.2d 767, 6 Va. Law Rep. 1056, 1990 Va. LEXIS 20 (1990) (decided under version of section prior to 1989 amendment).

    Relationship to federal law. —

    Va. Code Ann. § 8.01-66.9 did not conflict with United States Supreme Court precedent as to the apportionment of a Medicaid lien as the statute empowered trial courts to examine a potentially wide range of variable specifics to each case in determining whether to reduce the Medicaid lien at all, and if so, by how much. Farah v. Commonwealth, 2022 Va. LEXIS 7 (Va. Feb. 17, 2022).

    Circuit court’s factual findings allocating damages under Va. Code Ann. § 8.01-66.9 were not plainly wrong or without supporting evidence where it acknowledged the extensive nature of plaintiff’s medical bills, pain and suffering, and discredited evidence it found unpersuasive. Farah v. Commonwealth, 2022 Va. LEXIS 7 (Va. Feb. 17, 2022).

    CIRCUIT COURT OPINIONS

    Reduction of lien. —

    Where an injured child secured a $50,000 settlement from a motorist who injured the child, and the child’s outstanding medical bills totalled roughly $15,742, approximately $15,737 of which was a Medicaid lien by the Commonwealth, the circuit court considered the equities of the case and the competing interests of the injured child, the child’s attorney, and the Commonwealth in granting the child’s motion under § 8.01-66.9 to reduce the lien, but only to the extent of reducing it by 25%, which was the same percentage by which the child’s attorney had voluntarily reduced the attorney’s own fee in the case. Terry v. Harris, 56 Va. Cir. 326, 2001 Va. Cir. LEXIS 465 (Richmond Aug. 8, 2001).

    In a medical malpractice case, where the patient’s attorney had made a good faith effort to negotiate a compromise, the court had the authority to reduce the amount of the Medicaid lien and apportion the balance of the settlement recovery between the patient and his attorney. Diaz v. Arlington Anesthesia, Inc., 56 Va. Cir. 329, 2001 Va. Cir. LEXIS 466 (Arlington County Aug. 9, 2001).

    Reduction in medical services lien denied. —

    After the settlement of a personal injury action, the patient’s request for a reduction in a medical services lien was denied, as the patient’s net recovery was just, and since the patient was eligible for Medicaid, none of the net recovery would have to be used for medical treatment. Quivers v. Suffee, 58 Va. Cir. 94, 2001 Va. Cir. LEXIS 396 (Richmond Dec. 3, 2001).

    § 8.01-66.9:1. Lien against recovery for medical treatment provided to prisoner.

    In any civil action brought for injuries or death suffered by any person while confined in a state or local correctional facility, the Commonwealth or the locality, as the case may be, shall have a lien against any recovery by settlement or verdict for all actual expenses incurred by the Commonwealth or the locality for medical, surgical and hospital treatment and supplies for the prisoner, whether provided by public or private health care providers, as a result of the injury. Such lien shall be subject to the payment of reasonable attorneys’ fees and costs.

    History. 1984, c. 519.

    § 8.01-66.10. Death claims settled by compromise or suit.

    In case of personal injuries resulting in death and settlement therefor by compromise or suit under the provisions of §§ 8.01-50 to 8.01-56 , the liens provided for in this article may be asserted against the recovery, or against the estate of the decedent, but not both. If asserted against the recovery and paid, such liens shall attach pro rata to the amounts received respectively by such beneficiaries as are designated to receive the moneys distributed and in their respective amounts; and such beneficiaries, or the personal representative for their benefit, shall be subrogated to the liens against the estate of such decedent provided for by § 64.2-528 .

    History. Code 1950, § 32-141; 1979, c. 722.

    Editor’s note.

    At the direction of the Virginia Code Commission, the reference to “§ 64.1-157” was changed to “§ 64.2-528 ” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

    Michie’s Jurisprudence.

    For related discussion, see 18 M.J. Subrogation, § 1.

    § 8.01-66.11. Necessity for settlement or judgment.

    Nothing contained in this article shall be construed as imposing liability on any person, firm or corporation whose negligence is alleged to have caused injuries or on the attorney for the injured party where no settlement is made, or, in case of an attorney, where no funds come into his hands, or where no judgment is obtained in favor of such injured party or his personal representative.

    History. Code 1950, § 32-144; 1979, c. 722.

    § 8.01-66.12. Term physician to include chiropractor.

    Wherever the term physician is used in this article, it shall include chiropractor.

    History. 1993, c. 702.

    Article 8. Actions for the Sale, Lease, Exchange, Redemption and Other Disposition of Lands of Persons Under a Disability.

    § 8.01-67. Definitions; persons under a disability; fiduciary.

    The terms “fiduciary” and “person under a disability” as used in this article shall have the meanings ascribed to them in § 8.01-2 .

    History. 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 10A M.J. Insane and Other Incompetent Persons, § 12.

    § 8.01-68. Jurisdiction.

    Circuit courts in the exercise of their equity jurisdiction, upon being satisfied by competent evidence independent of the admissions in the pleadings or elsewhere in the proceedings, that one or more of the types of relief hereinafter specified will promote the interest of an owner of land, or any interest therein, who is a person under a disability as defined in this chapter for whom a conservator has not been appointed pursuant to Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2, and taking into consideration the rights of any other party interested in such land, may order the sale, exchange, lease, encumbrance, redemption, or other disposition of such real estate as to the court may seem just and equitable.

    In the case of the sales of such lands or interest therein, the court shall be governed by the established practices for judicial sales generally except as they may be specifically modified by provisions of this article.

    History. Code 1950, §§ 8-675, 8-677, 8-681, 8-682, 8-683; 1952, c. 360; 1977, c. 617; 1997, c. 921.

    REVISERS’ NOTE

    The section combines and simplifies former §§ 8-675, 8-677, 8-681, 8-682, and 8-683 while retaining the thrust of these sections. Thus, § 8.01-68 promotes the interest of the person under a disability without injuriously affecting the rights of the persons who may also have an interest in the land.

    Cross references.

    As to leases on behalf of person under a disability, see § 8.01-74 .

    As to petition by fiduciary for sale of real estate of person under a disability, see §§ 8.01-78 through 8.01-80 .

    As to disposition of proceeds of partition of person under a disability, see § 8.01-85 .

    As to sale of contingent estate, see §§ 8.01-94 , 8.01-95 .

    As to protection of purchaser at judicial sale, see § 8.01-113 .

    As to commutation of life estate of person under disability, see § 55.1-505 .

    For rule relating to intervenors, see Rule 3:14.

    Editor’s note.

    At the direction of the Virginia Code Commission, the reference to “Chapter 10 (§ 37.2-1000 et seq.) of Title 37.2” was changed to “Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

    Law Review.

    For article, “Updating Virginia’s Probate Law,” see 4 U. Rich. L. Rev. 223 (1970).

    For an article, “Reform of Adult Guardianship Law,” see 32 U. Rich. L. Rev. 1273 (1998).

    Michie’s Jurisprudence.

    For related discussion, see 9A M.J. Guardian and Ward, § 24.

    CASE NOTES

    Analysis

    A.General Consideration.

    Editor’s note.

    Some of the cases cited below were decided under corresponding provisions of former law. The terms “this chapter” and “this section,” as used below, refer to former provisions.

    Infants’ lands can be sold only as provided in this chapter. —

    Infants’ lands can be sold only under the authority and for the purpose contained in this and the following sections of this chapter. Clark v. George, 161 Va. 104 , 170 S.E. 713 , 1933 Va. LEXIS 301 (1933).

    Section is to be liberally construed. —

    This section is highly remedial, and upon familiar principles must receive a liberal construction, to give effect to the intention of the legislature and enhance the remedy. Faulkner v. Davis, 59 Va. (18 Gratt.) 651, 1868 Va. LEXIS 29 (1868); Rhea v. Shields, 103 Va. 305 , 49 S.E. 70 , 1904 Va. LEXIS 39 (1904).

    As to subjects to be sold. —

    The rule requiring a liberal construction to be placed upon statutes for the sale of lands of persons under disability has reference rather to the subjects sought to be sold in which such persons are interested than to the procedure by which such sales are effected. It does not authorize a mode of procedure not in substantial compliance with the statute authorizing the sale. Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 , 1911 Va. LEXIS 53 (1911) (see also Parker v. Stephenson, 127 Va. 431 , 104 S.E. 39 (1920)).

    But substantial compliance with provisions of this chapter is required. —

    When a suit is instituted to confirm the sale of infants’ lands, there must be not only a substantial compliance with this section but a substantial compliance with the other provisions of this chapter. Clark v. George, 161 Va. 104 , 170 S.E. 713 , 1933 Va. LEXIS 301 (1933).

    If a suit for the sale of lands of an insane person be brought under this section, there must be a substantial compliance with the other sections of this chapter. Wheeler v. Thomas, 116 Va. 259 , 81 S.E. 51 , 1914 Va. LEXIS 30 (1914).

    Character of property not changed except to extent required. —

    The legislative intent expressed in the statutes concerning the sale of lands owned by infants and incompetents is that the character and nature of an incompetent’s land is not to be changed except to the extent required, and the proceeds of sale shall be impressed with the character of the land. Bryson v. Turnbull, 194 Va. 528 , 74 S.E.2d 180, 1953 Va. LEXIS 115 (1953).

    Consent decree in partition proceedings void for noncompliance with article. —

    A consent decree in partition proceedings, to the effect that respondents’ share of the land be set off to them in bulk as joint tenants with the right of survivorship, was void as to an incompetent respondent where the requirements of the statutes providing for the sale of lands belonging to persons under disability were not complied with, although the incompetent’s committee was a party to the suit and the incompetent was represented by a guardian ad litem. Leonard v. Boswell, 197 Va. 713 , 90 S.E.2d 872, 1956 Va. LEXIS 143 (1956).

    Recovery for improvements against one who was not party to lease. —

    A lessee could not recover for the value of his improvements against an infant who was a part owner, relying upon the provision in his lease permitting him to remove all improvements upon termination of the lease, where she was not a party to the lease. White v. Pleasants, 227 Va. 508 , 317 S.E.2d 489, 1984 Va. LEXIS 221 (1984).

    B.Jurisdiction.

    Jurisdiction is not inherent. —

    In this State a court of equity has no authority under its general jurisdiction as guardian of infants to sell their real estate whenever it is to the advantage of the infants to do so, whether for reinvestment or for their maintenance and education. Faulkner v. Davis, 59 Va. (18 Gratt.) 651, 1868 Va. LEXIS 29 (1868); Kavanaugh v. Shacklett, 111 Va. 423 , 69 S.E. 335 , 1910 Va. LEXIS 63 (1910); Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 , 1911 Va. LEXIS 53 (1911).

    This section grants such jurisdiction. —

    The doctrine in this State is well settled that courts of equity possess no inherent power, as guardians of infants, to sell their real estate for the purpose of reinvestment, and the obvious purpose of this section is to invest those courts with that jurisdiction in respect to estates of all persons under disability. Rhea v. Shields, 103 Va. 305 , 49 S.E. 70 , 1904 Va. LEXIS 39 (1904) (see also Faulkner v. Davis, 59 Va. (18 Gratt.) 651 (1868); Rinker v. Streit, 73 Va. (33 Gratt.) 663 (1880); Kavanaugh v. Shacklett, 111 Va. 423 , 69 S.E. 335 (1910); Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 (1911)).

    The jurisdiction of the circuit courts of the Commonwealth to authorize the application of the proceeds of the corpus of infants’ real estate to their maintenance and education is altogether statutory. Whitehead v. Bradley, 87 Va. 676 , 13 S.E. 195 , 1891 Va. LEXIS 121 (1891); Hess v. Hess, 108 Va. 483 , 62 S.E. 273 , 1908 Va. LEXIS 57 (1908).

    But it is special and limited. —

    In a suit under this section for the sale of an infant’s lands, the court does not exercise a general, but only a special, statutory and limited, jurisdiction. Therefore, the conditions of fact, under which this section confers jurisdiction upon the court to enter a decree of sale, must affirmatively appear on the face of the proceedings in the suit in order that the decree may be valid. Farant Inv. Corp. v. Francis, 138 Va. 417 , 122 S.E. 141 , 1924 Va. LEXIS 35 (1924).

    And court may exercise only powers expressly granted. —

    Possessing no inherent power to sell the land of an infant, courts of equity are limited by the powers expressly granted by this chapter. Newman v. Light, 152 Va. 760 , 148 S.E. 818 , 1929 Va. LEXIS 209 (1929).

    C.When Sale Proper.

    Sale to pay debts of decedent is not authorized. —

    Nowhere in this chapter is there any authority for the sale of infant’s lands or a confirmation of such a sale for the purpose of paying the debts of a testator or intestate by or from whom the title to the lands has been devised or inherited by the infants. Clark v. George, 161 Va. 104 , 170 S.E. 713 , 1933 Va. LEXIS 301 (1933).

    Unless testator expressly prohibits sale. —

    It was not the purpose of the legislature to overrule an imperative prohibition of the testator, applicable to all circumstances that might occur or exist; and, therefore, the power to sell is withheld from the courts where the will expressly directs that the property shall not be sold. Where there is no such absolute prohibition, the testator must be regarded as having left the matter subject to the general authority conferred by the law. Talley v. Starke, 47 Va. (6 Gratt.) 339, 1849 Va. LEXIS 52 (1849).

    In Talley v. Starke, 47 Va. (6 Gratt.) 339 (1849), a testator directed his estate, after payment of his debts, to be kept together until his youngest child should come of age, to be controlled and managed by his executor and his wife with their best discretion, so as to make it productive of the greatest amount of profits for the support of his wife and children. It was held that a court of equity might direct a sale of the real estate under the statute if it was for the benefit of the infant children, and those who were of age consented. The direction of the testator that his estate should be kept together did not amount to an absolute prohibition of a sale, which would have made it incompetent for the court to decree such a sale. Faulkner v. Davis, 59 Va. (18 Gratt.) 651, 1868 Va. LEXIS 29 (1868).

    And construction of will is not prerequisite to sale. —

    This section does not require as a prerequisite that the will under which infants hold land shall be construed before a sale is ordered. Lancaster v. Barton, 92 Va. 615 , 24 S.E. 251 , 1896 Va. LEXIS 24 (1896).

    D.Interests That May Be Sold.

    Land in which infant has any interest may be sold. —

    Courts of equity have authority to sell land in which infants have an interest, whether in possession or remainder, vested or contingent, if the proper parties can be brought before the courts. Faulkner v. Davis, 59 Va. (18 Gratt.) 651, 1868 Va. LEXIS 29 (1868).

    Fee may be sold though infant has only life estate. —

    Under this section, a court of equity at the suit of the trustee of a life estate in land may sell not only the life estate, but also the remainder limited on that estate, over which the trust does not extend, the proceeds of the sale or the subject in which they are invested being held upon the same trusts and subject to the same limitations as the original estate. Rhea v. Shields, 103 Va. 305 , 49 S.E. 70 , 1904 Va. LEXIS 39 (1904).

    Or remainder. —

    A father as guardian of his infant children files a bill for the sale of real estate held by himself for life and by his children in remainder, and it is sold accordingly. This is authorized by this section. Cooper v. Hepburn, 56 Va. (15 Gratt.) 551, 1860 Va. LEXIS 19 (1860).

    But mere contingent interest alone should not be sold. —

    Under no circumstances would a court of equity decree the sale of a mere contingent interest of infants alone. Faulkner v. Davis, 59 Va. (18 Gratt.) 651, 1868 Va. LEXIS 29 (1868).

    E.Confirmation of Sale Already Made.

    Court may confirm sale made before suit is brought. —

    The former section has been generally construed as authorizing the court which has jurisdiction to order a sale to approve and confirm a sale made by the fiduciary before suit is brought, subject to the court’s approval and confirmation, provided it be clearly shown, independently of any admissions in the answers, that the interests of the infant, insane person or beneficiaries in the trust, as the case may be, will be promoted, and the court is of opinion that the right of no person will be violated thereby. Smith v. White, 107 Va. 616 , 59 S.E. 480 , 1907 Va. LEXIS 79 (1907).

    If it appears advantageous. —

    A bill by the guardians of infant children to have a contract for the sale of real estate confirmed, or the real estate resold, is properly maintainable under this section. It is competent for the court to confirm the sale already made, if it appears advantageous, instead of ordering a resale. Garland v. Loving, 22 Va. (1 Rand.) 396, 1823 Va. LEXIS 18 (1823).

    Court should not confirm sale when necessity therefor has ceased. —

    When the court is called upon to confirm a sale had under this section, and the necessity therefor, which seemed to exist when the sale was ordered, shall have ceased, it is proper that the court should refuse to confirm the sale. Harkrader v. Bonham, 88 Va. 247 , 16 S.E. 159 , 1891 Va. LEXIS 25 (1891).

    Subsequent approval does not validate unauthorized expenditure. —

    Where a sale commissioner paid the purchase money of an infant’s realty sold under decree of court to the infant’s guardian, and the latter expended the principal thereof for the ward’s maintenance and education, without previous authority from the court, subsequent approval by the court was too late to give validity either to the expenditure or the payment. Whitehead v. Bradley, 87 Va. 676 , 13 S.E. 195 , 1891 Va. LEXIS 121 (1891).

    F.Procedure.

    Petition may be filed in appropriate pending suit. —

    This section is construed not as requiring an independent bill for the purpose of selling an infant’s lands but as permitting such a sale on petition filed in any appropriate suit already pending. Carter Coal Co. v. Litz, 54 F. Supp. 115, 1943 U.S. Dist. LEXIS 1761 (D. Va. 1943), aff'd, 140 F.2d 934, 1944 U.S. App. LEXIS 4397 (4th Cir. 1944).

    Infant is treated as hostile party. —

    In proceedings to sell their land, infants stand in the position of hostile parties, and are treated as objecting to every step taken therein. Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 , 1911 Va. LEXIS 53 (1911).

    And need not demur. —

    In a suit to sell or mortgage the lands of an infant, he is considered as objecting at every point, and no demurrer is needed on his part. Parker v. Stephenson, 127 Va. 431 , 104 S.E. 39 , 1920 Va. LEXIS 62 (1920).

    Omission of averment that plaintiff sues as guardian is not fatal. —

    The omission of a formal averment that a bill is brought by the plaintiff as guardian does not violate the proceedings, where the bill states that the plaintiff is the guardian, and the whole frame of the bill is in pursuance of what is required to be set out in such a case, and the infants are made defendants. Cooper v. Hepburn, 56 Va. (15 Gratt.) 551, 1860 Va. LEXIS 19 (1860).

    Petition should set forth all infant’s property. —

    A bill did not contain an express allegation that the real estate which was set forth therein constituted all of the estate, real or personal, belonging to the infant, but it appeared from the evidence that the real estate set forth did, as a matter of fact, constitute all of the infant’s estate. It was held that this ultimate fact was all that was required to be stated, and that if the court found that the plaintiff alleged and proved this fact, and there was nothing on the face of the proceedings to negative the finding, then it was adequate. Farant Inv. Corp. v. Francis, 138 Va. 417 , 122 S.E. 141 , 1924 Va. LEXIS 35 (1924).

    It is immaterial that the bill in a suit for the sale of the infant’s lands, in addition to setting out all of the real and personal estate belonging to the infant does not add the statement that this is all the real and personal estate belonging to the infant. Farant Inv. Corp. v. Francis, 138 Va. 417 , 122 S.E. 141 , 1924 Va. LEXIS 35 (1924).

    And plaintiff should adduce proof of propriety of sale. —

    A failure to aver what property the infant owns besides that sought to be sold, and to adduce any proof of the propriety of the sale, is not adequate and a sale based thereon is a nullity. Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 , 1911 Va. LEXIS 53 (1911).

    Propriety cannot be determined on ex parte affidavits. —

    The propriety of making a sale under this section, or of confirming a conditional sale, made before suit brought under this section, cannot be determined upon ex parte affidavits. Smith v. White, 107 Va. 616 , 59 S.E. 480 , 1907 Va. LEXIS 79 (1907) (see also Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 (1911)).

    Validity of appointment of guardian cannot be attacked. —

    The fact that the guardian was appointed by a court having no power to do so cannot be raised as an objection to the validity of a sale of an infant’s lands, since such appointment cannot be attacked collaterally. Durrett v. Davis, 65 Va. (24 Gratt.) 302, 1874 Va. LEXIS 13 (1874).

    G.Setting Aside Decree.

    Where court has jurisdiction, decree is conclusive. —

    Where a court has jurisdiction pursuant to this section, both of the parties and of the subject matter in litigation, its decree, though erroneous, is conclusive until reversed or set aside. Rhea v. Shields, 103 Va. 305 , 49 S.E. 70 , 1904 Va. LEXIS 39 (1904).

    And cannot be attacked collaterally. —

    The court having had jurisdiction of the case under this section, the validity and propriety of a decree for the sale of infant’s land cannot be questioned in a collateral proceeding. Quesenberry v. Barbour, 75 Va. 491 , 1881 Va. LEXIS 31 (1881).

    But if jurisdiction is lacking, sale is void. —

    Where proceedings are wholly wanting in some of the jurisdictional requirements of this section, a sale is void and subject to collateral attack. Roberts v. Hagan, 121 Va. 573 , 93 S.E. 619 , 1917 Va. LEXIS 59 (1917).

    And noncompliance with chapter invalidates decree. —

    In suit for the sale of infants’ lands under this chapter, where it appears that the bill was not verified and no answer was filed by the guardian ad litem, in proper person of the infants, nor by the infants over the age of fourteen years, and there were other vital defects in the proceedings, the court was without jurisdiction to decree a sale of the lands, and the decree, the sale, and all proceedings thereunder were utterly void and without effect, and might be assailed directly or collaterally. Substantial compliance with this chapter is essential to the validity of the proceedings. Brenham v. Smith, 120 Va. 30 , 90 S.E. 657 , 1916 Va. LEXIS 155 (1916).

    Adjudicated fact cannot be inquired into in collateral proceeding. —

    Where a decree for the sale of an infant’s land is assailed, and nothing appears on the face of the record of the proceedings which tends to negative the adjudicated fact that the bill plainly set out all of the real and personal estate belonging to the infant, it must be assumed that there was evidence sufficient to support this adjudication, so that the fact is not open for further inquiry in a collateral proceeding. Farant Inv. Corp. v. Francis, 138 Va. 417 , 122 S.E. 141 , 1924 Va. LEXIS 35 (1924).

    But sales beneficial to infants will not be set aside on the ground of irregularities therein. Cooper v. Hepburn, 56 Va. (15 Gratt.) 551, 1860 Va. LEXIS 19 (1860) (see also Brown v. Armistead, 27 Va. (6 Rand.) 594 (1828)).

    And § 8.01-113 applies to sales of lands, under this section, of infants made in suits properly brought for that purpose. Cooper v. Hepburn, 56 Va. (15 Gratt.) 551, 1860 Va. LEXIS 19 (1860); Dixon v. McCue, 62 Va. (21 Gratt.) 373, 1871 Va. LEXIS 53 (1871); Quesenberry v. Barbour, 72 Va. (31 Gratt.) 491, 1879 Va. LEXIS 16 (1879); Lancaster v. Barton, 92 Va. 615 , 24 S.E. 251 , 1896 Va. LEXIS 24 (1896).

    § 8.01-69. Commencement of suit; parties.

    Any of the relief specified in this article may be sought by bill in equity filed by a fiduciary, as defined in this article, or by any other person having an interest in the subject matter of the proceedings. A person under a disability, fiduciary, all those who would be the heirs or distributees of the defendant person under disability if he had died at the time of the commencement of this proceeding, except as provided in § 8.01-78 , and all other persons interested in the subject matter of the proceeding, shall be made parties defendant when not parties plaintiff.

    History. Code 1950, § 8-676; 1952, c. 360; 1972, c. 361; 1973, c. 338; 1977, c. 617; 1983, c. 459.

    REVISERS’ NOTE

    This is a simplification of the first paragraph of former § 8-676, the second paragraph of which was former § 8.01-70 .

    Michie’s Jurisprudence.

    For related discussion, see 9B M.J. Infants, §§ 59, 60, 64.

    CASE NOTES

    Analysis

    I.General Consideration.

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    Presence of necessary parties is jurisdictional. —

    The presence of the necessary parties required by this section in a suit for the sale of infants’ lands is jurisdictional, and a decree rendered in their absence is void as to infants whose interests are affected thereby. Gee v. McCormick, 142 Va. 173 , 128 S.E. 541 , 1925 Va. LEXIS 328 (1925); Newman v. Light, 152 Va. 760 , 148 S.E. 818 , 1929 Va. LEXIS 209 (1929).

    And want of proper parties invalidates mortgage and sale. —

    Where, in a suit for the sale or mortgage of an infant’s lands, it was the purpose of the parties to proceed under this and the preceding section, and they endeavored to conform thereto, but the proceedings were substantially defective for want of proper parties, a mortgage made in pursuance thereof and a sale thereunder were void. Parker v. Stephenson, 127 Va. 431 , 104 S.E. 39 , 1920 Va. LEXIS 62 (1920).

    Lack of substantial compliance with section voids proceedings. —

    Where the state court failed to substantially comply with former § 8-676, which set forth jurisdictional requirements for an action to sell, encumber or lease infants’ land, the lack of substantial compliance made the proceeding void ab initio and in toto because the court lacked jurisdiction. Payne v. Consolidation Coal Co., 607 F. Supp. 378, 1985 U.S. Dist. LEXIS 21180 (D. Va. 1985) (decided under former § 8-676).

    Representative capacity. —

    An individual or entity does not acquire standing to sue in a representative capacity by asserting the rights of another unless authorized by the statute to do so. W.S. Carnes, Inc. v. Board of Supvrs., 252 Va. 377 , 478 S.E.2d 295, 1996 Va. LEXIS 102 (1996).

    The infants must be made parties defendant by guardian ad litem. Snavely v. Harkrader, 70 Va. (29 Gratt.) 112, 1877 Va. LEXIS 9 (1877).

    Or they may be plaintiffs with their guardian. —

    The fact that infants were plaintiffs with their mother, instead of being made defendants, is no objection to the proceedings in a suit for the sale of land. Quesenberry v. Barbour, 72 Va. (31 Gratt.) 491, 1879 Va. LEXIS 16 (1879).

    Purchaser at sale to be confirmed is necessary party. —

    Where the petition asks that a contract previously entered into by the guardian for the sale of the infant’s land be confirmed by the court, the purchaser under the contract is a necessary party. Hughes v. Johnston, 53 Va. (12 Gratt.) 479 (1855).

    II.Persons Who Would Be Heirs of Person Under Disability.

    “Distributees” and “heirs” refer to natural persons only. —

    The words “distributees” and “heirs,” as used in this section, have reference to natural persons only, and not to the Commonwealth, as the Commonwealth takes property not as an heir but by title paramount. Farant Inv. Corp. v. Francis, 138 Va. 417 , 122 S.E. 141 , 1924 Va. LEXIS 35 (1924).

    Presumptive heirs of infant must be parties defendant. —

    All persons who would be the heirs of the infant if he were dead must, under this section, be made parties defendant. Snavely v. Harkrader, 70 Va. (29 Gratt.) 112, 1877 Va. LEXIS 9 (1877).

    Unless they are plaintiffs. —

    Where a bill is filed by a father and mother, who are trustees of certain lands for their infant children, to sell these lands, it is a sufficient compliance with this section that the infants should be made parties defendant, their parents, who are the persons who would be the heirs of each infant if he were dead, being already plaintiffs. Lancaster v. Barton, 92 Va. 615 , 24 S.E. 251 , 1896 Va. LEXIS 24 (1896).

    Where a bill is filed by a guardian, it is not necessary to make him a party defendant on the ground that he would be an heir of the infant if the infant were dead. Durrett v. Davis, 65 Va. (24 Gratt.) 302, 1874 Va. LEXIS 13 (1874).

    The reason for the requirement that the heirs of the infants be made parties is twofold: First, the presumed affection of such heirs for the infants; and, second, their personal contingent interest in the land sought to be sold. It is a natural conclusion that those who may become the owners of the land or its proceeds will see that the same is not sacrificed by a guardian who is recreant of the trust imposed upon him. Gee v. McCormick, 142 Va. 173 , 128 S.E. 541 , 1925 Va. LEXIS 328 (1925); Newman v. Light, 152 Va. 760 , 148 S.E. 818 , 1929 Va. LEXIS 209 (1929) (see Bryson v. Turnbull, 194 Va. 528 , 74 S.E.2d 180 (1953)).

    Doctrine of representation applies. —

    Land was conveyed in trust for a husband and wife and the survivor of them for life, and at the death of the survivor to their children who would be living at the death of the survivor, and the descendants of such of the children as should then be dead leaving descendants. After the death of the husband, a bill was filed by the wife against the children and trustees for a sale of the land. It was held that a sale decreed upon the bill would bind the descendants of any child dying within the lifetime of the wife, under the doctrine of representation. Faulkner v. Davis, 59 Va. (18 Gratt.) 651, 1868 Va. LEXIS 29 (1868).

    But not where interests are hostile. —

    When the interests of the life tenant and the remaindermen are hostile, infant remaindermen cannot be considered as being before the court by representation by the life tenant. Turner v. Barraud, 102 Va. 324 , 46 S.E. 318 , 1904 Va. LEXIS 73 (1904).

    Questions of who would be heirs is one of fact. —

    In order to effectuate the title of a purchaser at a judicial sale of an infant’s lands, it must appear from the proceedings that the provisions of this chapter have been substantially complied with. However, the question as to who would be the heirs of an infant if he were dead is one of fact. Newman v. Light, 152 Va. 760 , 148 S.E. 818 , 1929 Va. LEXIS 209 (1929).

    Finding that infant had no kin cannot be assailed collaterally. —

    In an action of ejectment, a decree in a suit for the sale of an infant’s land was assailed because those who would have been the infant’s heirs or distributees, if he had been dead, had not been made defendants to the suit, as required by this section. The bill alleges that the infant had no kin or relations. The commissioner reported that all necessary parties were before the court, and that it was proved that the infant had no relations whatever. And the court, upon the hearing on the report and the evidence returned therewith, confirmed the commissioner’s report, and by so doing adjudicated its finding of fact that the infant, if he had been dead, would have had no heirs or distributees at the time of the suit. Nothing appeared on the face of the proceedings sufficient to negative this adjudicated fact. It was held that this finding of fact was final and conclusive, no appeal having been taken, and it could not be assailed collaterally, or affected by any extrinsic evidence. Farant Inv. Corp. v. Francis, 138 Va. 417 , 122 S.E. 141 , 1924 Va. LEXIS 35 (1924).

    Effect of failure to make presumptive heirs defendants. —

    In a suit to sell or mortgage an infant’s lands, brought by the infant’s mother in her own right and as guardian of the infant, there was a failure to comply with this section by making the heirs of an infant parties to the suit. It was insisted that if the court had jurisdiction on any ground, its decree was not void, but at most only voidable, and that the mother had the right to sue as creditor of her husband’s estate, having paid his debts and legacies. But as the bill made no charge that the mother was a creditor, and did not show that at the time it was filed she had paid any debt or legacy of her husband, there was nothing in it to show jurisdiction on this ground. Parker v. Stephenson, 127 Va. 431 , 104 S.E. 39 , 1920 Va. LEXIS 62 (1920).

    Contingent remainderman is not necessary party after failure of contingency. —

    Where land is devised to a certain person during his natural life, and to his children if he should have lawful issue, and if not, to the testator’s grandchildren and their heirs forever, and the life tenant marries and has children, the remainder vests in the children, and the alternative remainder to the grandchildren is defeated; hence the grandchildren are not necessary parties to a proceeding to sell the real estate after the birth of the children of the life tenant. Cooper v. Hepburn, 56 Va. (15 Gratt.) 551, 1860 Va. LEXIS 19 (1860) (decided under former § 8-676).

    §§ 8.01-70, 8.01-71. Repealed by Acts 1990, c. 831, effective January 1, 1991.

    Cross references.

    As to the abolition of dower and curtesy, see § 64.2-301 .

    § 8.01-72. When death to abate such suit.

    A suit instituted under this article shall abate by reason of the death of the person under a disability unless a sale, exchange, lease, encumbrance, redemption, or other disposition of real estate has been confirmed by a decree in such suit.

    History. Code 1950, § 8-678; 1952, c. 360; 1977, c. 617.

    REVISERS’ NOTE

    This section has been rewritten but there has been no change to the substance of the former law that confirmation by the court of its action will allow the court to proceed to a conclusion of the transaction even though the defendant party under a disability may have died subsequent to such confirmation.

    Cross references.

    For rule of court on substitution of parties, see Rule 3:17.

    § 8.01-73. Guardian ad litem to be appointed.

    In every suit brought under this article, a guardian ad litem shall be appointed for any person under a disability not otherwise represented by a guardian or committee, or trustee appointed pursuant to § 64.2-2003 , and for all persons proceeded against by an order or publication under the designation of “parties unknown” as provided for in § 8.01-316 . The guardian ad litem shall file an answer as such.

    History. Code 1950, § 8-679; 1952, c. 360; 1972, c. 361; 1977, c. 617; 1997, c. 540.

    REVISERS’ NOTE

    Former § 8-679 has been changed by the elimination of useless provisions regarding an answer by infants over the age of fourteen. Since the infant must be made a party, he may presumably answer regardless of age if he wishes to do so.

    The guardian ad litem shall also represent the interest of “unknown parties,” if any, who are proceeded against by order of publication.

    Former § 8-680 (Failure to answer . . .) has been deleted as unnecessary.

    Cross references.

    As to appointment of guardian ad litem in other suits, see § 8.01-9 .

    As to appointment of guardian ad litem in proceedings for the sale or leasing of certain contingent and other estates, see § 8.01-94 .

    Editor’s note.

    At the direction of the Virginia Code Commission, the reference to “§ 37.2-1003” was changed to “§ 64.2-2003 ” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Deeds, § 8.

    CASE NOTES

    The failure of a guardian ad litem to answer in his own proper person is error. Gee v. McCormick, 142 Va. 173 , 128 S.E. 541 , 1925 Va. LEXIS 328 (1925) (decided under prior law).

    Mere formal defects in the answer of the guardian ad litem do not vitiate the proceedings. Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 , 1911 Va. LEXIS 53 (1911) (decided under prior law).

    Section does not apply to partition suits. Cottrell v. Mathews, 120 Va. 847 , 92 S.E. 808 , 1917 Va. LEXIS 165 (1917) (decided under prior law).

    § 8.01-74. Leases on behalf of persons under disability; new leases.

    1. Leases on behalf of persons under a disability. —  When a person under a disability is entitled to or bound to renew any lease, any fiduciary on behalf of such person under a disability or any other interested person may apply by motion after reasonable notice to parties having a present interest in the property to be leased, to the circuit court as prescribed in subdivision 3 of § 8.01-261 , and by the order of the court any person appointed by it may, from time to time, surrender or accept a surrender of such lease, or take or make a new lease of the same premises for such term and with such provisions as the court directs. Such reasonable sums as are incurred to renew any such lease shall, with interest thereon, be paid out of the profits of the leasehold premises, and be a charge thereon until payment.
    2. New leases. —  When it shall appear to a circuit court that the interests of a person under a disability will be promoted by the execution of a new lease, where no prior lease exists, any fiduciary or any other person interested in the subject matter may apply in like summary fashion as stated in subsection A of this section and upon showing to the satisfaction of the court that the provisions therein were complied with, including reasonable notice to parties having a present interest to the property to be leased, the circuit court upon the consideration of the probable length of the disability and the duration of the proposed lease, may order such lease to be executed. Such lease may be renewed or surrendered at any time pursuant to subsection A of this section and under such conditions as the court may direct.

    History. Code 1950, § 8-674; 1952, c. 360; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-674 has been extended to permit the summary proceedings thereof to apply also to the renewal of leases as well as to new leases.

    Law Review.

    For note on sale, lease and encumbrance of infants’ lands in Virginia, see 47 Va. L. Rev. 534. For note on the need for legislation in the area of the sale of infants’ lands, see 51 Va. L. Rev. 355 (1965).

    Michie’s Jurisprudence.

    For related discussion, see 9A M.J. Guardian and Ward, § 25.

    CASE NOTES

    Recognizes the inviolability of trust estates. —

    Former provisions in this chapter recognize the inviolability of trust estates from lease, or sale, unless the interests of the cestuis que trustent will be promoted thereby, and unless the rights of no person will be violated. Schroeder v. Woodward, 116 Va. 506 , 82 S.E. 192 , 1914 Va. LEXIS 57 (1914) (decided under prior law).

    § 8.01-75. Who not to be purchaser.

    At any sale under this article neither a fiduciary for a person under a disability, as defined under this article, nor the guardian ad litem shall be a purchaser directly or indirectly; provided, however, such fiduciary may be a purchaser if the court finds that such a purchase by the fiduciary is in the best interests of the person under a disability.

    History. Code 1950, § 8-684; 1977, c. 617; 1980, c. 346.

    REVISERS’ NOTE

    This section changed former § 8-684 to remove the disqualification of a lessee as a purchaser of the land.

    Cross references.

    As to application of this section in suits to sell certain contingent and other estates, see § 8.01-95 .

    Law Review.

    For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).

    CASE NOTES

    Editor’s note.

    This section was enacted for the benefit and protection of the persons under disability, and not of their guardians, committees or trustees. Redd v. Jones, 71 Va. (30 Gratt.) 123, 1878 Va. LEXIS 54 (1878).

    Sale is not void but voidable. —

    Where land is sold under a decree of court in pursuance of a bill filed by the committee of an insane person and purchased by the committee contrary to this section, the sale is voidable and not void. It is in force until set aside, and this cannot be done collaterally. Cline v. Catron, 63 Va. (22 Gratt.) 378, 1872 Va. LEXIS 27 (1872).

    And in some cases might be sustained. —

    There may be a case in which a purchase made by a guardian or other fiduciary, of the land of his ward or other beneficiary, sold under this chapter, would and ought to be sustained and enforced. Redd v. Jones, 71 Va. (30 Gratt.) 123, 1878 Va. LEXIS 54 (1878).

    Bona fide purchaser will be protected. —

    A sale could not be set aside at the instance of an heir at law of a lunatic on the ground that the committee was himself the real purchaser, where the land had been conveyed to a trustee to secure a bona fide debt, and the party seeking to set aside the sale failed to allege notice to the trustee or the beneficiary of the fact relied on to set aside the sale, especially when the party seeking to set aside the sale herself joined in the deed of trust. Carter v. Allen, 62 Va. (21 Gratt.) 241, 1871 Va. LEXIS 65 (1871).

    § 8.01-76. How proceeds from disposition to be secured and applied; when same may be paid over.

    The proceeds of sale, or rents, income, or royalties, arising from the sale or lease, or other disposition, of lands of persons under a disability, whether in a suit for sale or lease thereof, or in a suit for partition, or in condemnation proceedings, shall be invested under the direction of the court for the use and benefit of the persons entitled to the estate; and in case of a trust estate subject to the uses, limitations, and conditions, contained in the writing creating the trust. The court shall take ample security for all investments so made, and from time to time require additional security, if necessary, and make any proper order for the faithful application and safe investment of the fund, and for the management and preservation of any properties or securities in which the same has been invested, and for the protection of the rights of all persons interested therein, whether such rights be vested or contingent, but nothing hereinbefore contained shall prevent the court having charge thereof from directing such funds to be paid over to the legally appointed and qualified fiduciary, as defined in § 8.01-67 , of the person under a disability, whenever the court is satisfied that such fiduciary has executed sufficient bond; or from applying at any time all or any portion thereof to the proper needs and requirements of the person under a disability. However, if such funds do not exceed the amount set forth in subsection B of § 8.01-606 , the court, in its discretion and without the intervention of a fiduciary, may pay such funds to any person deemed appropriate by the court for the use and benefit of a person under a disability, whether such person resides within or without the Commonwealth. Such funds not in excess of the amount set forth in subsection B of § 8.01-606 shall, when paid over to such person deemed appropriate, be treated as personal property.

    Upon request of the legally appointed and qualified fiduciary of the person under the disability or the guardian ad litem of the person under the disability, or upon the court’s own motion, the court may order that such funds be distributed to a special needs trust as defined in § 64.2-779.10 .

    History. Code 1950, § 8-685; 1952, c. 360; 1968, c. 380; 1970, c. 355; 1972, c. 159; 1974, c. 139; 1977, c. 617; 1978, c. 419; 1981, c. 129; 2018, c. 124.

    REVISERS’ NOTE

    Former § 8-685 has been changed to permit the court to order payment of up to $2500 to “any person deemed appropriate” rather than only to “parents.” This does not change the court’s consideration that such lesser amount is to be used only for the use and benefit of a person under a disability, whether such person resides within or without the Commonwealth.

    Cross references.

    As to application of proceeds under alternative procedure for sale of lands of person under a disability, see § 8.01-80 .

    As to applicability of this section in proceedings to sell or lease certain contingent and other estates, see § 8.01-95 .

    The 2018 amendments.

    The 2018 amendment by c. 124 substituted “the amount set forth in subsection B of § 8.01-606 ” for “$4,000” twice in the first paragraph, added the second paragraph, and made stylistic changes.

    Law Review.

    For article, “Updating Virginia’s Probate Law,” see 4 U. Rich. L. Rev. 223 (1970).

    Michie’s Jurisprudence.

    For related discussion, see 19 M.J. Trusts and Trustees, § 50.

    CASE NOTES

    Proceeds can be paid only as provided. —

    After sale of an infant’s lands, the court can only have the proceeds paid, for purposes of investment, into the hands of some person, who may or may not be the infant’s guardian, upon special bonds being given for the care of the same, as prescribed by a former version of this section. Pope v. Prince, 105 Va. 209 , 52 S.E. 1009 , 1906 Va. LEXIS 26 (1906).

    § 8.01-77. What proceeds of sale to pass as real estate.

    The proceeds received under the preceding provisions of this article or under Article 9 (§ 8.01-81 et seq.) of this chapter, from the sale or division of real estate of a person under a disability or so much thereof as may remain at such person’s death, if such person continue until death incapable from any cause of making a will, shall pass to those who would have been entitled to the land if it had not been sold or divided.

    History. Code 1950, § 8-689; 1952, c. 360; 1968, c. 66; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 7A M.J. Equitable Conversion, § 8.

    CASE NOTES

    Editor’s note.

    Purpose of section. —

    It is evident that while the legislature designed to authorize courts of chancery to sell infant’s real estate, without which they had no authority to sell, it was at the same time its design that such sale should be made without affecting the infant’s rights incident to an ownership of real estate, and without violating the rights of those who would be entitled to the estate, if the infant were dead. Indeed, it would not have been proper, if competent to the legislature, to have authorized a court to deprive the infant of a vested beneficial right incident to his ownership of real estate, he being incapable of assenting thereto, or to have diverted or “violated” the rights of those who would be entitled to the estate at the death of an infant under disability. Vaughan v. Jones, 64 Va. (23 Gratt.) 444, 1873 Va. LEXIS 46 (1873).

    Character of land is not to be changed except to extent required. —

    The legislative intent is made clear; viz., the character and nature of an incompetent’s land is not to be changed except to the extent required. Bryson v. Turnbull, 194 Va. 528 , 74 S.E.2d 180, 1953 Va. LEXIS 115 (1953).

    And proceeds are impressed with character of land sold. —

    Upon the involuntary sale, under a judicial decree, of the land of an incompetent person, incapable of dealing with the real estate, the proceeds should be impressed with the character of the land sold and should pass as such at death if the disabilities have not been removed. Bryson v. Turnbull, 194 Va. 528 , 74 S.E.2d 180, 1953 Va. LEXIS 115 (1953).

    Where an infant’s lands are sold under a decree of court, the proceeds retain the character of realty and pass as real estate. Thus, on the death of a female infant leaving a child, the proceeds will go to the child, and on its death during infancy, the husband surviving, the property will go to the child’s heirs on the part of his mother, subject to the life estate of the husband, the impress of realty never having been removed. Vaughan v. Jones, 64 Va. (23 Gratt.) 444, 1873 Va. LEXIS 46 (1873).

    The conversion of an infant’s real estate into money does not change its character as realty, and the proceeds of the sale retain the impress of real estate until the infant attains the age of 21 (now 18) years. Rinker v. Streit, 73 Va. 663 (1873).

    Section applies in suits for partition. —

    Where a suit for the sale of real property under a will, although not in the usual form and procedure, was more or less, in effect, a suit for the partition of real estate in which all parties joined and consented, the proceeds passed as real estate. Rinker v. Trout, 171 Va. 327 , 198 S.E. 913 , 1938 Va. LEXIS 283 (1938).

    § 8.01-78. Alternate procedure for sale of real estate of person under disability.

    If the personal estate of any person under a disability for whom a fiduciary has been appointed under any of the provisions of Title 64.2, be insufficient for the discharge of his debts or if the personal estate or residue thereof after payment of debts and the rents and profits of his real estate be insufficient for his maintenance and that of his family, if any, the fiduciary of his estate may petition a circuit court for authority to mortgage, lease or sell so much of the real estate of such person as may be necessary for the purposes aforesaid, or any of them, setting forth in the petition the particulars and amount of the estate, real and personal, and a statement of the application of any personal estate, and debts and demands existing against the estate. Those persons who would be heirs or distributees of the person under a disability if he had died at the time of commencement of the proceeding need not be made parties defendant to a proceeding pursuant to this section.

    History. Code 1950, § 8-689.1; 1952, c. 360; 1977, c. 617; 1983, c. 459.

    Cross references.

    As to sale of contingent estates, see §§ 8.01-94 , 8.01-95 .

    Editor’s note.

    At the direction of the Virginia Code Commission, substituted “Title 64.2” for “Title 37.2” to conform to the recodification of Title 64.1.

    CASE NOTES

    Editor’s note.

    Power to sell lunatic’s realty depends on statute. —

    The committee of a lunatic has no power except as prescribed by statute to dispose of the real estate of a lunatic. Lake v. Hope, 116 Va. 687 , 82 S.E. 738 , 1914 Va. LEXIS 78 (1914).

    No statute authorizes purchase of realty by committee. —

    While this section provides when and where a committee may petition for the sale, lease, or mortgage of the real estate of his ward, there is no specific statute authorizing a committee to purchase real estate, but Boisseau v. Boisseau, 79 Va. 73 , 52 Am. R. 616 (1884), approves the rule that, with the sanction of a court, the property of an infant may be converted by his guardian from personalty into real estate when the conversion appears to be for the ward’s benefit. Somers v. Godwin, 182 Va. 144 , 27 S.E.2d 909, 1943 Va. LEXIS 143 (1943).

    § 8.01-79. Same; reference of petition to commissioner.

    On the presenting of such petition it may be referred to a commissioner in chancery or to a special commissioner appointed by the court, to inquire into and report upon the matters therein contained, whose duty it shall be to make such inquiry, to give notice to and hear all parties interested in such real estate and to report thereon with all convenient speed.

    History. Code 1950, § 8-689.2; 1977, c. 617.

    § 8.01-80. Same; action of court on report; application of proceeds of transaction.

    If upon the filing of the report and examination of the matter it shall appear to the court to be proper, an order shall be entered for the mortgaging, leasing, or sale, on such terms and conditions as the court may deem proper, of so much of such real estate as may be necessary; but no conveyance shall be executed until such shall have been confirmed by the court. The proceeds of such transactions shall be secured and applied under the order of the court.

    History. Code 1950, § 8-689.3; 1977, c. 617.

    REVISERS’ NOTE

    The last sentence of former § 8-689.3, which was limited to sales, has been expanded to include mortgaging and leasing.

    Michie’s Jurisprudence.

    For related discussion, see 9B M.J. Infants, §§ 55, 59.

    Article 9. Partition.

    § 8.01-81. Who may compel partition of land; jurisdiction; validation of certain partitions of mineral rights; when shares of two or more laid off together.

    Tenants in common, joint tenants, executors with the power to sell, and coparceners of real property, including mineral rights east and south of the Clinch River, shall be compellable to make partition and may compel partition, but in the case of an executor only if the power of sale is properly exercisable at that time under the circumstances; and a lien creditor or any owner of undivided estate in real estate may also compel partition for the purpose of subjecting the estate of his debtor or the rents and profits thereof to the satisfaction of his lien. Any court having general equity jurisdiction shall have jurisdiction in cases of partition, and in the exercise of such jurisdiction, shall order partition in kind if the real property in question is susceptible to a practicable division and may take cognizance of all questions of law affecting the legal title that may arise in any proceedings, between such tenants in common, joint tenants, executors with the power to sell, coparceners and lien creditors.

    Any two or more of the parties, if they so elect, may have their shares laid off together when partition can be conveniently made in that way. If the court orders partition in kind, the court may require that one or more parties pay one or more parties’ amounts so that the payments, taken together with the court-determined value of the in-kind distributions to the parties, will make the partition in kind just and proportionate in value to the fractional interests held. If the court orders partition in kind, the court shall allocate to the parties that are unknown, unlocatable, or the subject of a default judgment a part of the property representing the combined interests of such parties as determined by the court, and such part of the property shall remain undivided.

    All partitions of mineral rights heretofore had are hereby validated.

    History. Code 1950, § 8-690; 1964, c. 167; 1968, c. 412; 1977, c. 617; 1984, c. 226; 2020, cc. 115, 193.

    REVISERS’ NOTE

    The term “person under a disability” has been substituted for various individuals specified in former sections of the predecessor Title 8 article.

    Cross references.

    As to venue of suit for partition, see § 8.01-261 , subdivision 3.

    As to partition of estate in which homestead exemption is claimed, see § 34-8 .

    As to necessity for deed in voluntary partition by coparceners, see § 55.1-101 .

    Editor’s note.

    Acts 2020, cc. 115 and 193, cl. 3 provides: “That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020.”

    The 2020 amendments.

    The 2020 amendments by cc. 115 and 193 are identical, and in the first paragraph, inserted “shall order partition in kind if the real property in question is susceptible to a practicable division and” in the last sentence; added the second paragraph; and made stylistic changes. For applicability clause, see Editor’s note.

    Law Review.

    For note on sale, lease and encumbrance of infants’ lands in Virginia, see 47 Va. L. Rev. 534 (1961).

    For note on creditors’ rights and cotenancies, see 48 Va. L. Rev. 405 (1962).

    For comment on extension of entireties doctrine, see 20 Wash. & Lee L. Rev. 260 (1963).

    For article, “The Virginia Land Trust — An Overlooked Title Holding Device for Investment, Business and Estate Planning Purposes,” see 30 Wash. & Lee L. Rev. 73 (1973).

    For 2003/2004 survey of real estate and land use law, see 39 U. Rich. L. Rev. 357 (2004).

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Cotenancy, § 45.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Wife held entitled to half of proceeds although not named in deed to land sold. —

    In an action brought by a divorced wife to partition a parcel of land where an examination of the record, the various exhibits filed, and the testimony of the witnesses established clearly and satisfactorily that throughout the period of their marriage and thereafter until the wife filed her bill of complaint seeking partition of the parties, both parties were under the impression that the land had been conveyed to them jointly and as tenants by the entirety, but where, because the wife was under the age of 21, the deed to the property of husband and wife was taken in name of the husband alone, the divorced wife still had an undivided one-half interest in the real property and, the property having been sold by agreement, the trial court properly decreed that each party was entitled to one half of the proceeds. Pleasants v. Pleasants, 221 Va. 1017 , 277 S.E.2d 170, 1981 Va. LEXIS 243 (1981).

    Divorce proceeding. —

    The method of accomplishing partition in a divorce proceeding differs from the method of arriving at a monetary award. The amount of a monetary award is determined after considering 11 specific factors, § 20-107.3 E, and is based on the equities and the rights and interests of each party in the marital property. On the other hand, partition, an entirely statutory procedure, is governed by this article since no directions for its implementation are contained in § 20-107.3 .Morris v. Morris, 3 Va. App. 303, 349 S.E.2d 661, 3 Va. Law Rep. 1029, 1986 Va. App. LEXIS 365 (1986).

    Partition under subsection C of § 20-107.3 is governed by this article. Clayberg v. Clayberg, 4 Va. App. 218, 355 S.E.2d 902, 3 Va. Law Rep. 2560, 1987 Va. App. LEXIS 256 (1987).

    Partition as now permitted in the equitable distribution statute is no different from that permitted prior to the adoption of § 20-107.3 , except that it may now be done in the divorce case rather than as a separate proceeding. However, when it is done, it must conform to the mandate of this article. Clayberg v. Clayberg, 4 Va. App. 218, 355 S.E.2d 902, 3 Va. Law Rep. 2560, 1987 Va. App. LEXIS 256 (1987).

    Partition of real property in a divorce proceeding is governed by this section. Mains v. Mains, 1993 Va. App. LEXIS 362 (Va. Ct. App. Aug. 17, 1993).

    Trial court did not err in ordering the sale of jointly owned property when the parties were unable to agree on the value of the properties for purposes of an allotment. Mains v. Mains, 1993 Va. App. LEXIS 362 (Va. Ct. App. Aug. 17, 1993).

    Partition procedures for § 20-107.3 . —

    Section 20-107.3 does not contain provisions directing how partition shall be conducted; therefore the procedures for distribution of the property and/or the proceeds of its sale, as disclosed by the partition statutes, and court decisions interpreting those statutes, must be followed. Fitchett v. Fitchett, 6 Va. App. 562, 370 S.E.2d 318, 5 Va. Law Rep. 88, 1988 Va. App. LEXIS 75 (1988).

    Partition must be conducted in ordinary course of docket. —

    Where trial court is empowered to order partition, the court has no right to defer such action but must conduct the procedure in the ordinary course of managing its docket. Fitchett v. Fitchett, 6 Va. App. 562, 370 S.E.2d 318, 5 Va. Law Rep. 88, 1988 Va. App. LEXIS 75 (1988).

    B.What May Be Partitioned.

    A joint tenancy with right of survivorship, as at common law, is subject to partition by a judgment lien creditor of one of the several joint tenants. Jones v. Conwell, 227 Va. 176 , 314 S.E.2d 61, 1984 Va. LEXIS 279 (1984).

    This section prohibits the partitioning of mineral rights west and north of the Clinch River; therefore, if a court has no authority to partition mineral rights west and north of the Clinch River, a fortiori, such mineral rights cannot be partitioned without the consent of all cotenants. Chosar Corp. v. Owens, 235 Va. 660 , 370 S.E.2d 305, 4 Va. Law Rep. 3189, 1988 Va. LEXIS 72 (1988).

    Tenant’s conduct of mining operations was such an appropriation of a specific portion of the Splashdam seam, located west and north of the Clinch River, which was in effect, a unilateral partitioning of the mineral estate, and the trial court correctly ruled that tenant’s mining excluded the nonconsenting cotenants from their interests in the property. Chosar Corp. v. Owens, 235 Va. 660 , 370 S.E.2d 305, 4 Va. Law Rep. 3189, 1988 Va. LEXIS 72 (1988).

    C.Who May Be Compelled to Make Partition.

    Joint tenants with right of survivorship. —

    The words “joint tenants” as used in this section were intended by the legislature to include joint tenants with right of survivorship and, pursuant to this section, such tenant shall be compellable to make partition at the instance of a judgment lien creditor. Jones v. Conwell, 227 Va. 176 , 314 S.E.2d 61, 1984 Va. LEXIS 279 (1984).

    Chapter 7 trustee’s power to sell estate property for purpose of satisfying creditors’ claims was not limited to debtor’s state law rights to partition that property as a joint tenant. The Chapter 7 trustee had the power, as a hypothetical lien creditor, to compel partition of the property under Virginia Code, but what was more, if the property could not be divided, the Bankruptcy Code allowed the trustee to sell the undivided joint property so long as certain conditions were met. Scott v. Hoole (In re Hoole), No. 17-50262, 2018 Bankr. LEXIS 810 (Bankr. W.D. Va. Mar. 21, 2018).

    Where the life tenant is not a tenant in common with the remaindermen, it follows that he has no right to compel partition of the property against the owners of the remainder interest. Whitby v. Overton, 243 Va. 20 , 413 S.E.2d 42, 8 Va. Law Rep. 1701, 1992 Va. LEXIS 153 (1992).

    Trial court properly entered summary judgment for the remaindermen children in a suit seeking to compel partition of property brought by their mother, who held a life estate interest in the property, as the mother was not a tenant in common with the children; the mother’s status as a tenant in common with the father as to the life estate was not sufficient to compel partition of the whole estate. Maitland v. Allen, 267 Va. 714 , 594 S.E.2d 918, 2004 Va. LEXIS 58 (2004).

    D.Improvements.

    Compensation of joint tenant. —

    In a partition suit, a joint tenant is usually entitled to compensation for permanent improvements he has made to the property. White v. Pleasants, 227 Va. 508 , 317 S.E.2d 489, 1984 Va. LEXIS 221 (1984).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Partition defined. —

    Partition is the division between two or more persons of lands which they jointly own as coparceners, joint tenants or tenants in common. Martin v. Martin, 112 Va. 731 , 72 S.E. 680 , 1911 Va. LEXIS 144 (1911).

    A partition proceeding is entirely statutory, and finds its authority in this section. Phillips v. Wells, 147 Va. 1030 , 133 S.E. 581 , 1926 Va. LEXIS 302 (1926); Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394, 1944 Va. LEXIS 201 (1944).

    B.Jurisdiction.
    1.In General.

    Section confers jurisdiction on courts of equity. —

    The jurisdiction of equity to decree partition of lands and take cognizance of all questions of law arising therein affecting title is settled by this section. Effinger v. Hall, 81 Va. 94 , 1885 Va. LEXIS 14 (1885); Davis v. Tebbs, 81 Va. 600 , 1886 Va. LEXIS 127 (1886).

    This section simply confers upon the courts of equity the same powers exercised by the common-law courts in the partition of land and, in addition, authorizes courts of equity to settle all questions of law affecting legal title to the land involved. Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256, 1955 Va. LEXIS 132 (1955); Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116, 1955 Va. LEXIS 248 (1955).

    Jurisdiction is not inherent. —

    This section and § 8.01-83 create and confer special statutory jurisdiction upon courts of equity for the partition and sale of land. Failure to substantially comply with the provisions of the statutes is fatal to the proceedings. Equity has no inherent jurisdiction to order a sale of land for the purpose of partition. Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256, 1955 Va. LEXIS 132 (1955); Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116, 1955 Va. LEXIS 248 (1955).

    Jurisdiction may be invoked as a matter of right. —

    Courts of equity have jurisdiction of suits for the partition of real estate, and the application for the exercise of that jurisdiction is not now addressed to the sound discretion of the court, but may be made as a matter of right. Grove v. Grove, 100 Va. 556 , 42 S.E. 312 , 1902 Va. LEXIS 60 (1902).

    No jurisdiction to partition lands in other states. —

    The courts of this State have no jurisdiction to decree a partition of lands lying in another state, although all the parties are before the court. Poindexter v. Burwell, 82 Va. 507 , 1886 Va. LEXIS 65 (1886); Wimer v. Wimer, 82 Va. 890 , 5 S.E. 536 , 1886 Va. LEXIS 93 (1886); Pillow v. Southwest Va. Imp. Co., 92 Va. 144 , 23 S.E. 32 , 1895 Va. LEXIS 97 (1895).

    Partition of real property in kind was an ancient heritage of equity jurisdiction, existing at common law independently of statute. To such extent the statutes are only declaratory of the common law. Leonard v. Boswell, 197 Va. 713 , 90 S.E.2d 872, 1956 Va. LEXIS 143 (1956).

    But jurisdiction has been materially enlarged by statute. —

    The Virginia statutes materially enlarge equity jurisdiction in suits for partition; new powers are conferred which were theretofore nonexistent. Thus, the right of a cotenant to an enforced sale where partition in kind is impracticable, is a right created by statute. Leonard v. Boswell, 197 Va. 713 , 90 S.E.2d 872, 1956 Va. LEXIS 143 (1956).

    This section does not authorize a court of equity to sell or allot any undivided interest in land. This power is conferred upon courts of equity by § 8.01-83 . Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256, 1955 Va. LEXIS 132 (1955); Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116, 1955 Va. LEXIS 248 (1955).

    Court may do all necessary to afford complete relief. —

    While this section defines the procedure to be followed in a suit for partition, there is no inhibition restricting the powers of a court of equity to do all that is necessary to be done in order that complete relief may be afforded the parties. Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394, 1944 Va. LEXIS 201 (1944).

    It is now settled law that if a suit be properly one for partition, the court, having jurisdiction of the parties and the subject matter, may proceed to give complete relief. Even in matters of purely legal right the equitable as well as the legal rights of the parties may be determined. Leonard v. Boswell, 197 Va. 713 , 90 S.E.2d 872, 1956 Va. LEXIS 143 (1956).

    It may pass upon accounts of liens and priorities. —

    In suits for partition courts of equity have authority to pass upon all questions necessary to justice between the parties, such as accounts of liens and priorities on the lands to be partitioned. Hinton v. Bland, 81 Va. 588 , 1886 Va. LEXIS 126 (1886).

    Court does not act merely in a ministerial capacity. —

    In partition suits a court of equity, acting under authority conferred by statute, does not act merely in a ministerial character and in obedience to the call of the parties who have a right to the partition, but its action is founded upon its general jurisdiction, and its relief is granted and administered ex aequo et bono according to its own notions of justice and equity. Leonard v. Boswell, 197 Va. 713 , 90 S.E.2d 872, 1956 Va. LEXIS 143 (1956).

    Consent decree pursuant to request for partition. —

    Since the competent parties to a partition suit could have created among themselves a joint tenancy with the right of survivorship as at common law, the court having jurisdiction of the parties and the subject matter, could, at their request, appoint commissioners to act in their behalf and thus accomplish the same result through the entry of a consent decree. Leonard v. Boswell, 197 Va. 713 , 90 S.E.2d 872, 1956 Va. LEXIS 143 (1956).

    Compensation for improvements. —

    As a general rule a joint tenant who at his own expense places permanent improvements upon common property is entitled in a partition suit to compensation for the improvements. This is so, whether his cotenant agreed thereto or not. Compensation of this kind is allowable not as a matter of legal right but purely as a desire of a court of equity to do justice and to prevent one tenant from becoming enriched at the expense of another. Shotwell v. Shotwell, 202 Va. 613 , 119 S.E.2d 251, 1961 Va. LEXIS 153 (1961).

    In the absence of consent on the part of the cotenant the amount of compensation for permanent improvements is limited to the amount by which the value of the common property has been enhanced. Shotwell v. Shotwell, 202 Va. 613 , 119 S.E.2d 251, 1961 Va. LEXIS 153 (1961).

    2.Questions of Law Affecting Legal Title.

    Court may take cognizance of all questions affecting legal title. —

    In this State the rule is well established that when a court of equity acquires jurisdiction of a cause for any purpose, it will retain it, and do complete justice between the parties, enforcing, if necessary, legal rights and applying legal remedies to accomplish that end. This is especially true of suits for partition, where, by express provision of this section, a court of equity may take cognizance of all questions of law affecting the legal title that may arise in any proceeding. Laurel Creek Coal & Coke Co. v. Browning, 99 Va. 528 , 39 S.E. 156 , 1901 Va. LEXIS 73 (1901) (see Bradley v. Zehmer, 82 Va. 685 (1886); Fry v. Payne, 82 Va. 759 , 1 S.E. 197 (1887); Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394 (1944)).

    Power is confined to claims of parties who may compel or be compelled to make partition. —

    By the terms of this section the power of courts of equity to adjudicate questions of law affecting the legal title in partition suits is confined to the conflicting claims of parties who may compel or be compelled to make partition. Miller v. Armentrout, 196 Va. 32 , 82 S.E.2d 491, 1954 Va. LEXIS 197 (1954).

    Purpose of this provision is to prevent delay. —

    The object of the provision in this section that the court may take cognizance of all questions of law affecting the legal title to the property was to obviate the delays and difficulties which frequently arose in partition suits where questions of title were involved. Adkins v. Adkins, 117 Va. 445 , 85 S.E. 490 , 1915 Va. LEXIS 54 (1915).

    It is constitutional. —

    The provision of this section authorizing a court of equity in a partition suit to settle all questions of law that may arise in the case does not violate the constitutional provision guaranteeing the right to trial by jury. Pillow v. Southwest Va. Imp. Co., 92 Va. 144 , 23 S.E. 32 , 1895 Va. LEXIS 97 (1895).

    It extends jurisdiction of courts in partition suits. —

    In the enactment of this section, the legislature intended to broaden and extend the jurisdiction of the courts in partition suits. Seefried v. Clarke, 113 Va. 365 , 74 S.E. 204 , 1912 Va. LEXIS 45 (1912).

    But question must arise as incident to partition. —

    In order to give the court jurisdiction in a partition suit under this section of a question affecting the legal title, the question must arise as an incident to a partition, and must be such as to require a decision before the partition can be satisfactorily made as between the persons at whose instance or in whose behalf the partition is to be made. Bailey v. Johnson, 118 Va. 505 , 88 S.E. 62 , 1916 Va. LEXIS 32 (1916).

    Independent hostile claim cannot be considered. —

    An independent hostile claim going to the whole property involved, and denying in toto and ab initio the title of the parties claiming the joint ownership of land, cannot be set up and adjudicated in a partition suit brought by the latter. The provision in giving courts of equity jurisdiction to pass upon “all questions of law affecting the legal title” was never intended to make a proceeding under this section a substitute for an action of ejectment. Bailey v. Johnson, 118 Va. 505 , 88 S.E. 62 , 1916 Va. LEXIS 32 (1916).

    Thus, jurisdiction does not extend to matters of general indebtedness. —

    The provision that a court of equity “may take cognizance of all questions of law affecting the legal title that may arise,” is applicable only to questions affecting the legal title to the subject of partition, and not to matters of general indebtedness between the parties. Adkins v. Adkins, 117 Va. 445 , 85 S.E. 490 , 1915 Va. LEXIS 54 (1915).

    Having no relation to subject of partition. —

    There is no provision for the settlement in partition suits of all controversies that may arise between tenants in common, growing out of their general indebtedness to each other, which have no relation to or bearing upon the title to the subject of partition. Adkins v. Adkins, 117 Va. 445 , 85 S.E. 490 , 1915 Va. LEXIS 54 (1915).

    A claim of adverse possession does not prevent the operation of this section. Fry v. Payne, 82 Va. 759 , 1 S.E. 197 , 1887 Va. LEXIS 142 (1887).

    And defendant cannot defeat jurisdiction by adverse claim. —

    A suit for partition cannot be made a substitute for an action of ejectment; but a defendant to a bill which states a good case for partition cannot defeat the jurisdiction in equity merely by denying in toto and ab initio the complainant’s title, and asserting in himself a title independent of and hostile to that under which the complainant claims. Goodman v. Goodman, 124 Va. 579 , 98 S.E. 625 , 1919 Va. LEXIS 149 (1919).

    Where he claims under one who held jointly with complainant. —

    While a suit for partition cannot be made a substitute for an action of ejectment, yet if the defendant in such a suit claims under one who was a joint owner with the complainant, or those under whom he claims, the defendant cannot defeat the right of the complainant to have his legal rights settled in a suit for partition by merely alleging and proving that he denies the rights of the complainant and holds adversely to him. Pillow v. Southwest Va. Imp. Co., 92 Va. 144 , 23 S.E. 32 , 1895 Va. LEXIS 97 (1895) (see also Morgan v. Hailey, 107 Va. 331 , 58 S.E. 564 (1907)).

    Decree settling adverse claim cannot be assailed collaterally. —

    When a court of equity has taken jurisdiction to partition land to the whole of which the defendant claims legal title, the decree of the court, even if erroneous, cannot be collaterally assailed in another suit. Morgan v. Hailey, 107 Va. 331 , 58 S.E. 564 , 1907 Va. LEXIS 45 (1907).

    Court may set aside deed to part of land. —

    In the exercise of its jurisdiction to take cognizance of all questions of law affecting the legal title to the property to be partitioned, a court may set aside a deed to one of the parties of a part of the land to be divided, either because the grantor had no power to make the deed, or because of his mental incapacity. Seefried v. Clarke, 113 Va. 365 , 74 S.E. 204 , 1912 Va. LEXIS 45 (1912).

    Decision upholding deed is res adjudicata in subsequent suit. —

    In a suit for partition of land, one of the co-owners, being a nonresident, was served with process by publication. A deed from the nonresident co-owner was put in evidence and held sufficient to transfer the grantor’s interest in the land to be partitioned. In a subsequent suit brought by the grantor for partition of the same land, it was held that, the court in the first suit having had jurisdiction of the parties and the subject matter, and the authority, pursuant to this section, to take cognizance of all questions of law affecting the legal title that might arise in the proceedings, its decision as to the sufficiency of the deed was res adjudicata, and could not be collaterally attacked, though the grantor was not personally served with process in the first suit. Beattie v. Wilkinson, 36 F. 646, 1888 U.S. App. LEXIS 2662 (C.C.D. Va. 1888).

    C.What May Be Partitioned.

    Equitable estates are subject to partition. —

    Under the provisions of this section, a court of equity has jurisdiction to partition equitable estates in land. So where a decedent was the complete equitable owner of a lot at the time of his death, equity may decree that the lot be sold for partition among his heirs at law, upon a bill filed by some of the heirs against the remaining heirs for partition. Stewart v. Stewart, 122 Va. 642 , 95 S.E. 388 , 1918 Va. LEXIS 128 (1918).

    The fact that land is under lease for a term of years is no objection to a partition thereof in this State, by virtue of § 8.01-91 . Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 , 1915 Va. LEXIS 39 (1915).

    Property subject to liens may be partitioned. —

    Where some of the cotenants have sold their undivided interest in lands and reserved liens for the unpaid purchase money, the existence of these liens on the undivided shares does not, per se, prevent the division of the common property among the owners. The liens will be considered as attaching to the parcels under the partition in severalty. Wright v. Strother, 76 Va. 857 , 1882 Va. LEXIS 87 (1882).

    Right of lien creditor to have partition set aside. —

    Where partition has been made among cotenants, it will not be disturbed at the instance of the lien creditors, unless they show that it is unequal and unfair as respects the security for their debts. Wright v. Strother, 76 Va. 857 , 1882 Va. LEXIS 87 (1882).

    All lands of original cotenancy need not be included. —

    The rule that all the lands of the original cotenancy should be included does not prevail in Virginia. Thus, where a decedent left several tracts of land susceptible of partition among his heirs at law, there might be partition of a single tract without the others. Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394, 1944 Va. LEXIS 201 (1944).

    D.Who May Compel Partition.

    Claimants under common ancestor. —

    Where, although the allegations of a bill for partition are meager, yet upon a natural and reasonable interpretation it makes out a case in which the complainant and defendant claim under a common ancestor, the complainant claiming an undivided one fourth of the land by inheritance, and the defendant an undivided three fourths, partly by inheritance and partly by purchase, the complainant and defendant are coparceners as to a part and tenants in common as to the residue of the land, the parties are clearly within the express terms of this section, and, no objection to the form or sufficiency of the bill being interposed, it is a good bill for partition. Goodman v. Goodman, 124 Va. 579 , 98 S.E. 625 , 1919 Va. LEXIS 149 (1919).

    Life tenants. —

    Pursuant to this section and § 8.01-94 , a tenant for life in an undivided moiety of property may maintain a suit against those who own the estate in remainder of that moiety, whether they are in esse or not, and the fee simple owners of the other moiety, and compel partition of the property, and, if the property is not susceptible of partition in kind, the life tenant may have a sale and division of the proceeds. Carneal v. Lynch, 91 Va. 114 , 20 S.E. 959 , 1895 Va. LEXIS 11 (1895), limited, Maitland v. Allen, 267 Va. 714 , 594 S.E.2d 918, 2004 Va. LEXIS 58 (2004).

    The fact that one owns a life estate in the whole of a tract and the remainder in fee in only one half thereof does not bar his right to maintain a suit for partition of the land. Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 , 1915 Va. LEXIS 39 (1915).

    Reversioners and remaindermen. —

    A reversioner or remainderman cannot compel partition during the continuance of the particular estate. Seibel v. Rapp, 85 Va. 28 , 6 S.E. 478 , 1888 Va. LEXIS 5 (1888).

    Under this section one of several remaindermen cannot compel a partition of the land during the continuance of the life estate, unless, perhaps, he has acquired the life estate. Powell v. Tilson, 161 Va. 318 , 170 S.E. 750 , 1933 Va. LEXIS 321 (1933) (see Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 (1915)).

    Holder of legal title to entire property. —

    A party holding the legal title to the whole of a tract of land in an undivided two thirds of which others own the complete equitable estate, with the right to call for the legal title, may, under the liberal provisions of this section, file a bill against such others for a partition of the whole. Hagan v. Taylor, 110 Va. 9 , 65 S.E. 487 , 1909 Va. LEXIS 109 (1909).

    Guardians. —

    A guardian of infants may maintain a suit for partition of real estate held jointly by the infants and other adult persons. Cooper v. Hepburn, 56 Va. (15 Gratt.) 551, 1860 Va. LEXIS 19 (1860); Zirkle v. McCue, 67 Va. (26 Gratt.) 517, 1875 Va. LEXIS 36 (1875).

    Lien creditors. —

    A lien creditor may compel partition of land, or a sale thereof when partition cannot conveniently be made. Peatross v. Gray, 181 Va. 847 , 27 S.E.2d 203, 1943 Va. LEXIS 233 (1943).

    Suit by widow for partition of husband’s estate. —

    A widow filed her bill, in which she asked to have her interests and those of her children, whose guardian she was, in her husband’s estate ascertained and laid off, to have her dower allotted in kind or commuted in money, and the interests of her children ascertained and placed under her control as their guardian, and for a settlement of the rights of all the parties. The administrator and children of the husband were made defendants, and the case regularly proceeded in. It was held that this was a suit for partition, and the widow might properly bring it. Zirkle v. McCue, 67 Va. (26 Gratt.) 517, 1875 Va. LEXIS 36 (1875).

    Tenants in common. —

    A bill may be filed by one tenant in common against another for the purpose of having partition of the property held in common, and to subject the interest of the defendant to a deed of trust thereon for the benefit of the complainant. Price v. Crozier, 101 Va. 644 , 44 S.E. 890 , 1903 Va. LEXIS 69 (1903).

    Tenants by entirety. —

    Under this section partition is not compellable between tenants by entirety, but that end is reached through § 55-20, which makes tenants by entirety tenants in common, in turn modified by § 55-21 where it is declared that this conversion shall not take place when it is manifestly not intended. Allen v. Parkey, 154 Va. 739 , 149 S.E. 615 , 1929 Va. LEXIS 234 (1929).

    Persons without interest. —

    Persons claiming under a party whose interest in land has been extinguished have no standing in court as complainants in a partition suit. Stevens v. McCormick, 90 Va. 735 , 19 S.E. 742 , 1894 Va. LEXIS 55 (1894).

    E.Who May Be Compelled to Make Partition.

    Infants as well as adults are included within the provision of this section that tenants in common, joint tenants, and coparceners shall be compellable to make partition. Payne v. Payne, 179 Va. 562 , 19 S.E.2d 690, 1942 Va. LEXIS 248 (1942).

    F.Improvements.

    Compensation for improvements. —

    As a general rule a joint tenant who at his own expense places permanent improvements upon common property is entitled in a partition suit to compensation for the improvements. This is so, whether his cotenant agreed thereto or not. Compensation of this kind is allowable not as a matter of legal right but purely as a desire of a court of equity to do justice and to prevent one tenant from becoming enriched at the expense of another. Shotwell v. Shotwell, 202 Va. 613 , 119 S.E.2d 251, 1961 Va. LEXIS 153 (1961).

    In the absence of consent on the part of the cotenant the amount of compensation for permanent improvements is limited to the amount by which the value of the common property has been enhanced. Shotwell v. Shotwell, 202 Va. 613 , 119 S.E.2d 251, 1961 Va. LEXIS 153 (1961).

    Burden is on the person claiming reimbursement for improvements to prove the actual construction of the improvements, and second, to show the amount by which the value of the common property is enhanced. Shotwell v. Shotwell, 202 Va. 613 , 119 S.E.2d 251, 1961 Va. LEXIS 153 (1961).

    Generally, a tenant in common, joint tenant, or coparcener who places permanent improvements upon common property at his own expense is entitled to compensation in the event of partition, but before an allowance can be considered he must prove what improvements were made and show the amount by which the value of the property has been enhanced. Rutledge v. Rutledge, 204 Va. 522 , 132 S.E.2d 469, 1963 Va. LEXIS 181 (1963).

    G.Pleading and Practice.

    Section does not restrict courts as to procedure. —

    No restrictions or limitations are placed upon courts of equity by this section in the matter of procedure; they are left free to adopt such method as may be best suited to meet the exigencies of the particular case. Any instrumentality that the court may call to its assistance, whether it be a master in chancery or a special board of commissioners, is advisory merely. The question must at last be left to the determination of the court upon the law and the evidence. Phillips v. Dulaney, 114 Va. 681 , 77 S.E. 449 , 1913 Va. LEXIS 131 (1913).

    All original parties in interest need not be convened. —

    Where a decedent dies intestate, leaving several tracts or parcels of land susceptible of partition among his heirs at law, it is not essential that all original parties in interest and their alienees, if any, be convened and all the real estate left by the decedent be included in a suit for partition. Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394, 1944 Va. LEXIS 201 (1944).

    Bill need not make formal deraignment of title. —

    It is not necessary in a bill for partition to make a formal deraignment of title, or any deraignment further than is necessary to show how the parties became coparceners and entitled to partition. Goodman v. Goodman, 124 Va. 579 , 98 S.E. 625 , 1919 Va. LEXIS 149 (1919).

    But it must show relationship entitling plaintiff to partition. —

    The complainant in a partition suit must aver and prove that he occupies such a relationship to the defendant as entitles him to invoke the equity jurisdiction. If his bill fails to show this, it is bad on demurrer. If it does show this, and the answer denies it, then upon a hearing on bill and answer, either with or without a replication, the bill will be dismissed. Goodman v. Goodman, 124 Va. 579 , 98 S.E. 625 , 1919 Va. LEXIS 149 (1919).

    Residuary legatee under cotenant’s will not necessary party. —

    A residuary legatee under a will was not a necessary party to a partition suit directed at certain land in which the testator owned a fractional interest. Salvation Army v. Campbell, 202 Va. 223 , 116 S.E.2d 334, 1960 Va. LEXIS 210 (1960).

    Bill held sufficient. —

    A bill averring that plaintiff is entitled, under a duly probated will, to part of a tract of land held by defendant, who owns the other part under the same will, and praying for partition, is sufficient, though it fails to aver that defendant purchased his part with notice of plaintiff’s claim, where it sufficiently appears that defendant was put on inquiry, and thus was affected with knowledge of all he might have discovered had he done his duty. Davis v. Tebbs, 81 Va. 600 , 1886 Va. LEXIS 127 (1886).

    CIRCUIT COURT OPINIONS

    Equitable tenants in common. —

    Although a timber company, which owned an undivided timber interest, was not technically a tenant in common with fee simple interest owners, the company was an equitable tenant in common; therefore, the company could pursue an equitable remedy of partition under § 8.01-81 . It would be inequitable to deny the timber company an opportunity to demonstrate that a partition of the entire property could be made, and its interest thereby realized, in the absence of any prejudice to the interest of the fee simple interest owners. Bluefield Timber, L.L.C. v. Harlan Lee Land, L.L.C., 72 Va. Cir. 277, 2006 Va. Cir. LEXIS 317 (Lee County Nov. 22, 2006).

    § 8.01-81.1. Determination of value.

    1. Except as otherwise provided in subsections B and C, the court in every partition action shall order an appraisal pursuant to subsection D, and such appraisal shall inform the court’s determination of fair market value under subsection F. The expense of the appraisal shall be taxed as costs.
    2. If all parties have agreed to the value of the property or to another method of valuation, the court shall adopt such value or the value produced by the agreed-upon method of valuation.
    3. If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall enter an order to determine the fair market value for the property.
    4. If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser licensed in the Commonwealth to assist the court in determining the fair market value of the property assuming sole ownership of the fee simple estate. Upon completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court and shall, within three business days of such filing, mail a notice of filing to all counsel of record stating:
      1. The appraised fair market value of the property;
      2. That the appraisal is available at the clerk’s office; and
      3. That a party may file with the court an objection to the appraisal not later than 30 days after the notice is sent, stating the grounds for the objection.
    5. If an appraisal is filed with the court pursuant to subsection D, the court shall conduct a hearing to determine the fair market value of the property not sooner than 31 days after a copy of the notice of the appraisal is sent to each party under subsection D, whether or not an objection to the appraisal is filed under subdivision D 3. In addition to the court-ordered appraisal, the court may consider any other evidence of value offered by a party.
    6. After a hearing under subsection E, but before considering the merits of the partition action, the court shall enter an order determining the fair market value of the property.

    History. 2020, cc. 115, 193.

    Editor’s note.

    Acts 2020, cc. 115 and 193, cl. 3 provides: “That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020.”

    § 8.01-82. Repealed by Acts 2020, cc. 115 and 193, cl. 2.

    Cross references.

    For current provisions as to when shares of two or more may be laid off together, see § 8.01-81 .

    Editor’s note.

    Former § 8.01-82 , pertaining to when shares of two or more were laid off together, derived from Code 1950, § 8-691; 1977, c. 617.

    Acts 2020, cc. 115 and 193, cl. 3 provides: “That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020.”

    § 8.01-83. Allotment to one or more parties, or sale, in lieu of partition.

    1. If at least one party to a partition action petitions the court for allotment or for a partition sale, the court may order allotment pursuant to this section or, if the court determines allotment is not practicable, a sale pursuant to § 8.01-83.1 .
    2. Before a court is authorized to allot or sell an undivided interest in a partition action, it shall first determine that partition in kind cannot be practicably made. When the subject land is not susceptible to a practicable division in kind, the court shall next consider an allotment of the entire subject property to any one or more of the parties who will accept it for a price equal to the value determined pursuant to § 8.01-81.1 , and pay therefor to the other parties such sums of money as their interest therein may entitle them to receive, notwithstanding that any of those entitled may be a person with a disability. If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled to a credit against the price in an amount equal to the purchaser’s share of the proceeds. The court shall make distribution of the proceeds of the allotment according to the respective rights of those entitled, taking care, when there are creditors of any deceased person who was a tenant in common, joint tenant, or coparcener, to have the proceeds of such deceased person’s part applied according to the rights of such creditors.
      1. When the court considers allotment, it shall require the party or parties seeking allotment to notify all of the other parties (i) that the property may be allotted to any one or more of them who is willing to accept it and (ii) of the required price.
      2. In the event that multiple parties seek allotment and disputes arise concerning such allotment, the court shall consider the following in making such allotment:
        1. Evidence of the collective duration of ownership or possession of the property by a party and one or more predecessors in title or predecessors in possession to the party who are or were related to the party or each other;
        2. A party’s sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the party;
        3. The lawful use being made of the property by a party and the degree to which the party would be harmed if the party could not continue the same use of the property;
        4. The degree to which the parties have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property; and
        5. Any other relevant factor.The court shall not consider any one of the preceding factors to be dispositive without weighing the totality of all relevant factors and circumstances.
    3. If the court determines that such allotment of the entire subject is not practicable or is not equitable, and if the interest of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue, the court, notwithstanding any of those entitled may be a person under a disability, may order such sale, or an allotment pursuant to subsection B of a part thereof to any one or more of the parties who will accept it and pay therefor to the other parties such sums of money as their interest therein may entitle them to, and a sale of the residue. The price for the part of the property allotted to one or more parties shall be the fair market value of such part as determined by the court unless all the parties agree to a value for the part, which the court shall adopt. The sale of the residue shall be conducted pursuant to § 8.01-83.1 . The court shall make distribution of the proceeds of the allotment and sale of the residue, according to the respective rights of those entitled, taking care, when there are creditors of any deceased person who was a tenant in common, joint tenant, or coparcener, to have the proceeds of such deceased person’s part applied according to the rights of such creditors.
    4. If the court determines neither allotment of the entire subject property nor of a part of the subject property is practicable or equitable, it shall order a sale pursuant to § 8.01-83.1 .

    3. After the court determines which party or parties will participate in the allotment, the court shall notify all the parties of its decision and of the amount each party is to pay or receive for its allotted share pursuant to either this subsection or subsection C. The court shall set a date, not sooner than 60 days after notification to the parties, by which each party allotted a share of the property must pay the amount due to the court. If any party allocated a share fails to pay the amount due by the required date the court shall order a sale of the entire subject property pursuant to § 8.01-83.1 , unless the court determines, based on the factors in this subsection, that it will allow another party or parties to acquire such share by paying for such share within a reasonable period of time set by the court.

    History. Code 1950, § 8-692; 1950, p. 467; 1977, c. 617; 2020, cc. 115, 193.

    Cross references.

    As to compensation for improvements, see notes to § 8.01-81 .

    As to partition or sale of real estate in which homestead exemption is claimed, see § 34-8 .

    Editor’s note.

    Acts 2020, cc. 115 and 193, cl. 3 provides: “That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020.”

    At the direction of the Virginia Code Commission, substituted “part” for “party” in subsection D to correct a typographical error in Acts 2020, cc. 115 and 193.

    The 2020 amendments.

    The 2020 amendments by cc. 115 and 193 are identical, and rewrote the section, which had read “When partition cannot be conveniently made, the entire subject may be allotted to any one or more of the parties who will accept it and pay therefor to the other parties such sums of money as their interest therein may entitle them to; or in any case in which partition cannot be conveniently made, if the interest of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue, the court, notwithstanding any of those entitled may be a person under a disability, may order such sale, or an allotment of a part thereof to any one or more of the parties who will accept it and pay therefor to the other parties such sums of money as their interest therein may entitle them to, and a sale of the residue, and make distribution of the proceeds of sale, according to the respective rights of those entitled, taking care, when there are creditors of any deceased person who was a tenant in common, joint tenant, or coparcener, to have the proceeds of such deceased person’s part applied according to the rights of such creditors.” For applicability clause, see Editor’s note.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Dower, § 52.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Primary question in suits for partition is whether or not a division in kind is convenient, practicable and for the best interest of the parties; the secondary question is whether their interest will be promoted by a sale in whole or in part. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141, 3 Va. Law Rep. 984, 1986 Va. LEXIS 252 (1986).

    Discretion of court. —

    Whether an allotment should be decreed is a matter resting within the sound discretion of a trial court. White v. Pleasants, 227 Va. 508 , 317 S.E.2d 489, 1984 Va. LEXIS 221 (1984).

    Allotment in kind jointly to cotenants. —

    While two cotenants may, by agreement, have their joint interests allotted in kind to them jointly, they cannot be compelled to do so against their wishes, or the wishes of either. White v. Pleasants, 227 Va. 508 , 317 S.E.2d 489, 1984 Va. LEXIS 221 (1984).

    The 1988 amendment to subsection C of § 20-107.3 gave the trial judge discretion to order a transfer of the property to one of the parties without first determining whether partition in kind could be conveniently made; thus, under the amended statute, a transferor could be deprived of real property susceptible to partition in kind to which he or she would have been absolutely entitled under this section. Such a fundamental change in the law affects substantive rights and thus the 1988 statutory amendment to subsection C of § 20-107.3 was not merely procedural. Marion v. Marion, 11 Va. App. 659, 401 S.E.2d 432, 7 Va. Law Rep. 1564, 1991 Va. App. LEXIS 22 (1991).

    Section 20-107.3 , as amended in 1988, gave the trial judge discretion in a divorce proceeding to order a transfer of property to one of the parties without first determining whether partition in kind could be conveniently made. Thus, under the amended statute, one spouse in the divorce proceeding could be deprived of ownership of real property susceptible to partition to which that spouse would have been absolutely entitled under this section. Gaynor v. Hird, 11 Va. App. 588, 400 S.E.2d 788, 7 Va. Law Rep. 1477, 1991 Va. App. LEXIS 10 (1991).

    B.Sale.

    Prerequisites to sale. —

    First the court must conclude that the property cannot be conveniently partitioned. Next, the court must decide whether sale is in the best interest of the parties. If the first step is not reached the second step cannot be taken. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141, 3 Va. Law Rep. 984, 1986 Va. LEXIS 252 (1986).

    A court has no power to order the sale of property without first determining that partition in kind cannot be conveniently made and then determining that sale will be in the best interest of all the parties. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141, 3 Va. Law Rep. 984, 1986 Va. LEXIS 252 (1986).

    Method. —

    Chancellor was required to order such method of sale as would obtain the highest price for the property, unless the evidence showed that the parties’ conduct or other circumstances made use of that method unachievable. Orgain v. Butler, 255 Va. 129 , 496 S.E.2d 433, 1998 Va. LEXIS 3 (1998).

    Failure to substantially comply with provisions of statutes is fatal to proceedings. Equity has no inherent jurisdiction to order a sale of land for the purpose of partition. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141, 3 Va. Law Rep. 984, 1986 Va. LEXIS 252 (1986).

    Burden of proof. —

    The burden is on the proponent of sale to prove all the prerequisites to sale. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141, 3 Va. Law Rep. 984, 1986 Va. LEXIS 252 (1986).

    Co-owners urging partition by sale or allotment must first prove partition in kind not conveniently made. Without such proof, a court of equity has no authority to order any such sale. Smith v. Woodlawn Constr. Co., 235 Va. 424 , 368 S.E.2d 699, 4 Va. Law Rep. 2626, 1988 Va. LEXIS 54 (1988).

    Order of sale is error absent proof that land cannot be conveniently partitioned. —

    Where a party seeking sale of property in lieu of partition fails to prove that the land cannot be conveniently partitioned then it is error for the trial court to order the sale of the subject property. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141, 3 Va. Law Rep. 984, 1986 Va. LEXIS 252 (1986).

    And sale is rendered void. —

    The failure to make the threshold finding that partition could not be conveniently made renders an order of sale void. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141, 3 Va. Law Rep. 984, 1986 Va. LEXIS 252 (1986).

    Proof of prerequisites to sale must affirmatively appear in record. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141, 3 Va. Law Rep. 984, 1986 Va. LEXIS 252 (1986).

    Acceptance of highest bid does not create judicial sale. —

    Even when the property is auctioned under court decree, the acceptance of the highest bid does not create a judicial sale. A judicial sale is not consummated until the proceeding is confirmed by the court. Until then, the proceeding is in fieri, the accepted bidder is merely a preferred proposer, and the court retains the power to set the proceeding aside and order a new sale. Austin v. Dobbins, 219 Va. 930 , 252 S.E.2d 588, 1979 Va. LEXIS 192 (1979).

    Failure of court to show opinion accepting bid to counsel. —

    Proceedings conducted in regard to a petition for partition did not comply with the rules and standards governing judicial sales where, notwithstanding the continuing competition between two active bidders, the expressed interest of other potential buyers, and the possibility that a sale by parcels would yield a greater return, the chancellor wrote a memorandum opinion accepting the latest bid in gross, which opinion was written less than two weeks after that bid was tendered, and was never circulated among counsel. Austin v. Dobbins, 219 Va. 930 , 252 S.E.2d 588, 1979 Va. LEXIS 192 (1979).

    Purchase by co-owner. —

    The fact that the purchaser at a judicial sale for the purpose of partitioning real estate was a co-owner of the property to be partitioned did not render the sale improper. Austin v. Dobbins, 219 Va. 930 , 252 S.E.2d 588, 1979 Va. LEXIS 192 (1979).

    Conclusory statement that land would bring “more money” if sold. —

    Even if the value with partition and without partition is relevant to the convenience of the partition, a decision in that regard cannot be made on the basis of a conclusory statement that land if sold as a whole would bring “more money.” Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141, 3 Va. Law Rep. 984, 1986 Va. LEXIS 252 (1986).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Section abrogates common-law rule. —

    In Virginia, the common-law rule that in a partition suit the shares should be allotted in severalty is abrogated, and the rule that the court is clothed with ample power to resort to the most advantageous devices which the nature of the case may admit is substituted. Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394, 1944 Va. LEXIS 201 (1944).

    It provides additional methods of partition. —

    Under this section, a court has jurisdiction to decree a partition of lands by allotment, by metes and bounds, or by a sale of the lands and division of the proceeds. Beattie v. Wilkinson, 36 F. 646, 1888 U.S. App. LEXIS 2662 (C.C.D. Va. 1888).

    In a partition suit, a court of chancery may allot the whole of the property to any party who will take it and pay their respective shares to the others in money, it may sell the whole and divide the proceeds, or it may sell a part and divide the rest. Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394, 1944 Va. LEXIS 201 (1944).

    The power to sell or allot an undivided interest in land is conferred upon courts of equity by this section. Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256, 1955 Va. LEXIS 132 (1955); Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116, 1955 Va. LEXIS 248 (1955).

    The court is by this section given broad authority to deal with the subject as the interest of the parties and the circumstances of the case may require. Its conclusion is, of course, subject to review upon appeal. Stamps v. Williamson, 190 Va. 145 , 56 S.E.2d 71, 1949 Va. LEXIS 269 (1949).

    If the court determines from competent evidence in the record before it that the land is not susceptible of division in kind, the court is given broad powers to deal with the subject as the interest of the parties and the circumstances of the case may require. Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256, 1955 Va. LEXIS 132 (1955).

    But authority is predicated on determination that partition cannot be conveniently made. —

    The authority of the court to allot or to sell land in a partition suit is predicated upon its being judicially determined from the record that “partition cannot be conveniently made.” The existence of this fact must be determined by the court before ordering the sale or allotment. Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256, 1955 Va. LEXIS 132 (1955).

    The power of the court to allot all or a part of the land or to sell all or a part thereof is in all cases dependent upon a judicial determination from the record that “partition cannot be conveniently made.” Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116, 1955 Va. LEXIS 248 (1955).

    And that interests of those entitled to subject or proceeds are served. —

    In addition to the finding that partition cannot be conveniently made, the power of the court to allot part of the land and sell the residue or to sell the entire subject and distribute the proceeds is dependent upon the further judicial determination from the record that “the interest of those who are entitled to the subject or its proceeds will be promoted” by such disposition. Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116, 1955 Va. LEXIS 248 (1955).

    Convenience of division in kind. —

    If the property is found to be divisible in kind, any co-owner has the right to insist that partition be so made, and therefore the primary question in every suit for partition is whether a division in kind may be conveniently made. Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116, 1955 Va. LEXIS 248 (1955).

    The circumstances which should guide the court in its disposition of the matter will depend not merely on the allegations in the pleadings, but on the evidence or lack of evidence adduced to support such allegations. Stamps v. Williamson, 190 Va. 145 , 56 S.E.2d 71, 1949 Va. LEXIS 269 (1949).

    Courts may adopt methods of procedure. —

    The procedure for determining whether a division in kind can or cannot be conveniently made is not provided for and therefore the courts are left free to adopt such methods of procedure as may be best suited to meet the exigencies of the particular case. Thus, the court may in its sound discretion determine this issue from the evidence before it or it may call to its assistance a master in chancery or a special board of commissioners. But in its final analysis the question must be left to the determination of the court upon the evidence as disclosed by the record. Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116, 1955 Va. LEXIS 248 (1955).

    Noncompliance with statute is fatal to proceeding. —

    This section created and conferred a special statutory jurisdiction upon the court. A failure to comply with its provisions is fatal to the proceedings. Equity has no inherent jurisdiction to order a sale of land for the purpose of partition. Roberts v. Hagan, 121 Va. 573 , 93 S.E. 619 , 1917 Va. LEXIS 59 (1917).

    Under this section creditors may come into a partition suit and their rights will be protected. Those who do come in are bound by what was done and cannot sue again. But creditors who are not parties are not bound by anything done in the suit. Lowry v. Noell, 177 Va. 238 , 13 S.E.2d 312, 1941 Va. LEXIS 211 (1941).

    B.Allotment of Entire Subject to One Party.

    The language of the allotment provision is permissive and its exercise rests in the sound discretion of the court. Thrasher v. Thrasher, 202 Va. 594 , 118 S.E.2d 820, 1961 Va. LEXIS 150 (1961); Shotwell v. Shotwell, 202 Va. 613 , 119 S.E.2d 251, 1961 Va. LEXIS 153 (1961).

    Whether allotment is justified is question for court. —

    The court under this section is given power under certain conditions in partition proceedings to assign the whole tract at a valuation to any party who will accept it and pay therefor to other parties such sums of money as their interest therein may entitle them to. Whether or not the conditions exist is for the court to decide, but a wrong conclusion on that question would not render its decree void. Johnson v. Merrit, 125 Va. 162 , 99 S.E. 785 , 1919 Va. LEXIS 16 (1919) (see Roberts v. Hagan, 121 Va. 573 , 93 S.E. 619 (1917)).

    Where more than one of the persons entitled to partition sought allotment of the entire property to himself the lower court did not abuse its discretion in refusing allotment to either. Thrasher v. Thrasher, 202 Va. 594 , 118 S.E.2d 820, 1961 Va. LEXIS 150 (1961); Shotwell v. Shotwell, 202 Va. 613 , 119 S.E.2d 251, 1961 Va. LEXIS 153 (1961).

    C.Allotment of Part and Sale of Part.

    Section does not authorize sale to pay costs of partition. —

    In a suit for partition, where no sale is necessary and none is made for the purpose of partition, the court is without jurisdiction to sell the land assigned to one of the partners to satisfy his share of the costs of partition. The judgment for such costs would probably be a preferred lien on the land, but would have to be enforced like other judgment liens by a bill in equity. Virginia Iron, Coal & Coke Co. v. Roberts, 103 Va. 661 , 49 S.E. 984 , 1905 Va. LEXIS 37 (1905).

    Allotment to co-owner who is also life tenant. —

    In a suit for partition by one who owned one half of the land in fee and a life estate in the other half, it was not error to allot to her part of the land and compensate her in money out of the proceeds of the sale of the residue for inequality resulting to her in the partition. Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 , 1915 Va. LEXIS 39 (1915).

    Owelty to be paid out of proceeds of sale. —

    Where commissioners in partition assign one tract of land to a party, and fix a value on another tract and ascertain how much thereof shall be paid to the party receiving the other tract for owelty of partition, and the tract valued sells for a less sum than that fixed by the commissioners, the sum to be paid of owelty of partition should be fixed with reference to the price brought at the sale thereof and not to the valuation ascertained by the commissioners. Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 , 1915 Va. LEXIS 39 (1915).

    D.Sale of Entire Subject.

    Necessity for sale and interests of parties control. —

    Under this section, to justify the sale of land in a partition suit, it must appear that the land is not conveniently susceptible of partition in kind, and that the interests of the parties will be promoted by a sale. Custis v. Snead, 53 Va. (12 Gratt.) 260, 1855 Va. LEXIS 17 (1855); Howery v. Helms, 61 Va. (20 Gratt.) 1, 1870 Va. LEXIS 1 (1870); Zirkle v. McCue, 67 Va. (26 Gratt.) 517, 1875 Va. LEXIS 36 (1875).

    While a lien creditor may compel partition of land, or a sale thereof when partition cannot conveniently be made, the court has no authority to order such a sale unless it is made to appear by an inquiry before a commissioner or otherwise that partition cannot be made in some of the modes provided by statute. Peatross v. Gray, 181 Va. 847 , 27 S.E.2d 203, 1943 Va. LEXIS 233 (1943).

    Sale is void if land can be divided in kind. —

    If it conclusively appears from the record in the partition suit that the land can be divided in kind and that, notwithstanding this fact, the court orders a sale without the consent of competent parties such decree ordering the sale is void and not merely voidable. Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256, 1955 Va. LEXIS 132 (1955).

    Facts justifying sale should be disclosed. —

    Upon a bill for partition of land, as a general rule, the share of each parcener should be assigned to him in severalty. And if from the condition of the subject or the parties, it is proper to pursue a different course, the facts justifying a departure from the rules should, at least where infants are concerned, be disclosed by the report or otherwise appear, to enable the court to judge whether or not their interest will be injuriously affected. Custis v. Snead, 53 Va. (12 Gratt.) 260, 1855 Va. LEXIS 17 (1855).

    And should appear in record. —

    It is not necessary that the facts necessary to warrant a decree for sale should appear from the reports of commissioners or by the depositions of witnesses. It is sufficient if the facts appearing in the record reasonably warrant the decree of sale. This is especially true when the proceeding is to defeat the title of an innocent purchaser. Zirkle v. McCue, 67 Va. (26 Gratt.) 517, 1875 Va. LEXIS 36 (1875).

    Otherwise, court has no authority to decree sale. —

    Where there was no evidence before the court on which to base a decree for the sale of the land, as the report of the commissioners was discredited by the circumstances under which it was made, it was held that no sale could be had, for a court has no authority to decree a sale of land for partition unless it is made to appear by an inquiry before a commissioner in chancery, or in some other way, that partition in kind cannot be made. Cunningham v. Johnson, 116 Va. 610 , 82 S.E. 690 , 1914 Va. LEXIS 68 (1914).

    Court should direct inquiry. —

    It is the duty of the court, before making a decree for a sale, to ascertain by an inquiry, by a commissioner or otherwise, that partition cannot be made in some of the modes provided by this and the preceding section, without a sale. Howery v. Helms, 61 Va. (20 Gratt.) 1, 1870 Va. LEXIS 1 (1870).

    But party must object in trial court to failure to do so. —

    In a suit for partition, the court has no authority to order a sale of the land unless it is made to appear by an inquiry before a commissioner, or otherwise, that partition cannot be made in some of the other modes provided by this article. But when it did not so appear, and no inquiry was asked in the court below, a party who promoted the suit and at whose instance the decree was made, will not be allowed to raise the objection for the first time in the appellate court. Howery v. Helms, 61 Va. (20 Gratt.) 1, 1870 Va. LEXIS 1 (1870).

    Interests of parties should be ascertained before ordering sale. —

    An order for sale of land in partition before ascertaining the interests of the several parties is premature and erroneous, as they are entitled to know how they stand in order that they may bid intelligently, if they desire to bid at the sale. Stevens v. McCormick, 90 Va. 735 , 19 S.E. 742 , 1894 Va. LEXIS 55 (1894).

    Unless there is no dispute as to title or interest. —

    Where there is no dispute as to the title or interest of any party to the suit, the shares of the parties need not be ascertained before ordering the sale. Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 , 1915 Va. LEXIS 39 (1915).

    Private sales are permitted. —

    In ordering a sale of land for partition, the court may, in its discretion, authorize a private sale, subject to its approval. Conrad v. Fuller, 98 Va. 16 , 34 S.E. 893 , 1900 Va. LEXIS 3 (1900).

    Court’s decision as to desirability of sale is conclusive. —

    In a suit for partition, whether the interests of those who are entitled to the subject or its proceeds will be promoted by a sale of the entire subject or not are questions for the court in which the suit is pending to decide, and its decision cannot be questioned in any collateral suit, except on the ground of fraud or surprise. Wilson v. Smith, 63 Va. (22 Gratt.) 493, 1872 Va. LEXIS 41 (1872); Hurt v. Jones, 75 Va. 341 , 1881 Va. LEXIS 18 (1881).

    Facts not justifying setting aside sale. —

    The fact that the parties owned another tract of land in another county, and that it did not appear that partition in kind of the two tracts could not be made, is not ground for setting aside as sale, where the parties did not wish to sell the other tract. Frazier v. Frazier, 67 Va. (26 Gratt.) 500, 1875 Va. LEXIS 34 (1875).

    CIRCUIT COURT OPINIONS

    Division not practical. —

    In a partition action, the court found that it was a practical impossibility to conveniently divide two parcels of land among the owners due to the extreme typography of the land and the limited road frontage; one parcel was located on both sides of a state road, and the two parcels had different fractional interests. Willson v. Heirs of Wood, 2006 Va. Cir. LEXIS 183 (Nelson County July 14, 2006).

    § 8.01-83.1. Open-market sale, sealed bids, or auction.

    1. If the court orders a sale of property in a partition action under the provisions of § 8.01-83 , the sale shall be an open-market sale unless the court finds that a sale by sealed bids or at auction would be more economically advantageous and in the best interests of the parties as a group.
    2. If the court orders an open-market sale and the parties, not later than 10 days after the entry of the order, agree on a real estate broker licensed in the Commonwealth to offer the property for sale, the court shall appoint the broker and establish a reasonable commission. If the parties do not agree on a broker, the court shall appoint a disinterested real estate broker licensed in the Commonwealth to offer the property for sale and shall establish a reasonable commission. The broker shall offer the property for sale in a commercially reasonable manner at a price no lower than the determination of value and on the terms and conditions established by the court, including setting a reasonable time for marketing the property at its court-determined value pursuant to § 8.01-81.1 .
    3. If the broker appointed under subsection B obtains within a reasonable time an offer to purchase the property for at least the determination of value:
      1. The broker shall promptly file a report containing (i) a description of the property to be sold to each buyer; (ii) the name of each buyer; (iii) the proposed purchase price; (iv) the terms and conditions of the proposed sale, including the terms of any owner financing; (v) the amounts to be paid to lienholders; (vi) a statement of contractual or other arrangements or conditions of the broker’s commission; and (vii) other material facts relevant to the sale; and
      2. The court shall hold a hearing to approve the same and shall appoint a special commissioner to make the sale and execute the deed pursuant to Article 11 (§ 8.01-96 et seq.).
    4. If the broker appointed under subsection B does not obtain within a reasonable time an offer to purchase the property for at least the determination of value, the court, after a hearing, may:
      1. Approve the highest outstanding offer, if any;
      2. Redetermine the value of the property and order that the property continue to be offered for an additional period of time; or
      3. Order that the property be sold by sealed bids or at auction.
    5. If the court orders a sale by sealed bids or at auction, the court shall set terms and conditions of such sale by sealed bids or an auction.
    6. If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled to a credit against the price in an amount equal to the purchaser’s share of the proceeds.

    History. 2020, cc. 115, 193.

    Editor’s note.

    Acts 2020, cc. 115 and 193, cl. 3 provides: “That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020.”

    § 8.01-83.2. Notice by posting.

    If the plaintiff in a partition action seeks an order of publication pursuant to § 8.01-316 , the plaintiff, not later than 10 days after the court’s determination, shall post and maintain while the action is pending a conspicuous sign on the property that is the subject of the action. The sign shall state that the action has commenced and identify the name and address of the court and the common designation by which the property is known. The court may require the plaintiff to publish on the sign the name of the plaintiff and the known defendants.

    History. 2020, cc. 115, 193.

    Editor’s note.

    Acts 2020, cc. 115 and 193, cl. 3 provides: “That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020.”

    § 8.01-83.3. Commissioners.

    If the court appoints commissioners pursuant to Article 11 (§ 8.01-96 et seq.), each commissioner, in addition to the requirements and disqualifications applicable to commissioners in Article 11, shall be disinterested and impartial and not a party to or participant in the action.

    History. 2020, cc. 115, 193.

    Editor’s note.

    Acts 2020, cc. 115 and 193, cl. 3 provides: “That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020.”

    § 8.01-84. Application of proceeds of sale to payment of lien.

    When there are liens on the interest of any party in the subject so sold, the court may, on the petition of any person holding a lien, ascertain the liens, and apply the dividend of such party in the proceeds of sale to the discharge thereof, so far as the same may be necessary.

    History. Code 1950, § 8-693; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 14A M.J. Partition, § 50.

    CASE NOTES

    Editor’s note.

    Court may apply proceeds of sale to discharge of lien. —

    Courts of equity have jurisdiction of suits for partition, and have power, where there are liens by judgment or otherwise on the interests of any party, to apply the dividends of such party in the proceeds of sale to the discharge of such lien. Grove v. Grove, 100 Va. 556 , 42 S.E. 312 , 1902 Va. LEXIS 60 (1902).

    Defendant may assert claim or lien. —

    Under this section defendants in a partition suit may assert any claim or lien they may have upon the land, and if the claim or lien is established, the proceeds of the sale for partition may be applied thereto. Reynolds v. Adams, 125 Va. 295 , 99 S.E. 695 , 1919 Va. LEXIS 24 (1919).

    Failure to assert charge or lien. —

    Where defendants in a partition suit made no assertion of any charge or lien in their favor on the real estate in question in their pleadings in the cause, it is not error for the decree to ignore the rights of defendants in this respect. Reynolds v. Adams, 125 Va. 295 , 99 S.E. 695 , 1919 Va. LEXIS 24 (1919).

    Right of cotenant who has discharged more than his share of encumbrance. —

    In decreeing partition, a court of equity will adjust all the equitable rights of the parties interested in the property, and if one of the cotenants has paid more than his just share of an encumbrance on the common property, or advanced more than his proportion of the purchase money, the court may decree that payment of the excess be made to him, and that, in default of such payment, the share of the tenant in default may be sold to satisfy the amount equitably due from it. Grove v. Grove, 100 Va. 556 , 42 S.E. 312 , 1902 Va. LEXIS 60 (1902).

    § 8.01-85. Disposition of share in proceeds of person under disability.

    The court making an order for sale shall, if a party to the sale be a person under a disability, order any dividend of the sale to be disposed as the proceeds of a sale under the provisions of § 8.01-76 are required to be invested.

    History. Code 1950, § 8-694; 1952, c. 249; 1968, c. 381; 1977, c. 617; 2018, c. 124.

    REVISERS’ NOTE

    Former §§ 8-685 and 8-694 were difficult to reconcile. By deleting certain language in former § 8-694 and making reference to § 8.01-76 , the proper disposition of proceeds from a sale of the land of a person under a disability is clarified.

    The 2018 amendments.

    The 2018 amendment by c. 124 rewrote the section, which formerly read “The court making an order for sale shall, when the dividend of a party exceeds $2500, if such party be a person under a disability, order the same to be disposed as the proceeds of a sale under the provisions of § 8.01-76 are required to be invested.”

    Michie’s Jurisprudence.

    For related discussion, see 14A M.J. Partition, § 31.

    § 8.01-86. Repealed by Acts 1990, c. 831, effective January 1, 1991.

    Cross references.

    As to the abolition of dower and curtesy, see § 64.2-301 .

    § 8.01-87. Validation of certain partitions prior to act of 1922.

    All partitions heretofore had, when the proceedings conformed to the law as it existed prior to the amendment of § 5281 of the Code of 1919 by an act approved March 27, 1922, although they did not conform to such section as it read under the amendment of 1922, as aforesaid, are hereby validated; but nothing in this validating section shall be construed as intended to affect vested rights.

    History. Code 1950, § 8-696; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-697 (Validation of sales when stock has been taken instead of cash) had no modern utility and was deleted.

    § 8.01-88. Decree of partition to vest legal title.

    A decree heretofore or hereafter made, confirming any partition or allotment in a suit for partition, shall vest in the respective co-owners, between or to whom the partition or allotment is made, the title to their shares under the partition or allotment, in like manner and to the same extent, as if such decree direct such title be conveyed to them and the conveyance was made accordingly.

    History. Code 1950, § 8-698; 1977, c. 617.

    Cross references.

    As to necessity of deed in voluntary partition by coparceners, see § 55.1-101 .

    As to recordation of judgments in partition suits, see § 55.1-649 .

    Michie’s Jurisprudence.

    For related discussion, see 14A M.J. Partition, § 25.

    CASE NOTES

    The object of this section [section refers to former provisions] was to do away with the necessity for conveyances between the parties, or by a commissioner of the court, in partition suits, in order to invest the several co-owners with the legal title to the land allotted to each in the suit. Wright v. Johnson, 108 Va. 855 , 62 S.E. 948 , 1908 Va. LEXIS 106 (1908) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Long-arm jurisdiction. —

    Section 8.01-328.1 conferred jurisdiction over beneficiaries in a proceeding brought pursuant to this section because the beneficiaries’ purposeful actions directed toward Virginia in reaching agreement with plaintiff and carried out through their agent in Virginia were sufficient to confer jurisdiction over them. Eldridge v. Sloper, 75 Va. Cir. 513, 2007 Va. Cir. LEXIS 253 (Alexandria Dec. 27, 2007).

    § 8.01-89. When proceeds of sale deemed personal estate.

    The proceeds of any sale made under § 8.01-83 shall, except as provided in § 8.01-77 , be deemed personal estate from the time of the confirmation of such sale by the court.

    History. Code 1950, § 8-699; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 14A M.J. Partition, § 31.

    § 8.01-90. When name or share of parties unknown.

    If the name or share of any person interested in the subject of the partition be unknown, so much as is known in relation thereto shall be stated in the bill.

    History. Code 1950, § 8-700; 1977, c. 617.

    Cross references.

    As to order of publication against unknown parties, see § 8.01-316 .

    For provision as to reopening of suit by unknown parties, see § 8.01-322 .

    Michie’s Jurisprudence.

    For related discussion, see 14A M.J. Partition, § 41.

    § 8.01-91. Effect of partition or sale on lessee’s rights.

    Any person who, before the partition or sale, was lessee of any of the lands divided or sold, shall hold the same of him to whom such land is allotted or sold on the same term on which by his lease he held it before the partition.

    History. Code 1950, § 8-701; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 14A M.J. Partition, § 49.

    CASE NOTES

    The fact that land is under lease for a term of years is no objection to a partition thereof in this State, by virtue of this section. Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 , 1915 Va. LEXIS 39 (1915) (decided under prior law).

    But tenant must claim under valid lease. —

    This section applies only when the lessee claims under a valid lease against all of the joint owners; it does not apply where only a part of the tenants in common undertook to lease a particular portion of the joint property. Phillips v. Dulaney, 114 Va. 681 , 77 S.E. 449 , 1913 Va. LEXIS 131 (1913) (decided under prior law).

    Rights of tenant who is owner of undivided portion. —

    The fact that a tenant or lessee of land was the owner of an undivided portion therein did not deprive him of the rights given a tenant or lessee under this section. Mitchell v. Weaver, 116 F. Supp. 707, 1953 U.S. Dist. LEXIS 2293 (D. Va. 1953) (decided under prior law).

    § 8.01-92. Allowance of attorneys’ fees out of unrepresented shares.

    In any partition suit when there are unrepresented shares, the court shall allow reasonable fees to the attorney or attorneys bringing the action on account of the services rendered to the parceners unrepresented by counsel.

    History. Code 1950, § 8-701.1; 1950, p. 96; 1977, c. 617.

    CASE NOTES

    Attorney fees denied. —

    Sibling was properly denied attorney fees out of the unrepresented siblings’ shares in the sale proceeds from an inherited property where § 8.01-92 only required an award when fees were incurred on account of the services rendered to unrepresented parceners, the trial court had found that no services were rendered to the unrepresented siblings, and there was no evidence that the unrepresented siblings supported the partition suit. Berry v. Fitzhugh, 299 Va. 111 , 846 S.E.2d 901, 2020 Va. LEXIS 94 (2020).

    CIRCUIT COURT OPINIONS

    Fees awarded. —

    Chancery commissioner properly rejected the plaintiff’s claim regarding the proceeds of a beneficiary’s sale of timber harvested from the property because the profits realized from the timber sale was used to pay the property taxes and insurance on the property, which benefited the other parties, and the one acre parcel with a life estate was to have a sewage drainage easement; however, the commissioner erred in rejecting the plaintiff’s claim for attorney’s fees against the beneficiary’s unrepresented shares. Ellinger v. Tyree, 104 Va. Cir. 183, 2020 Va. Cir. LEXIS 15 (Nelson County Jan. 31, 2020).

    § 8.01-93. Partition of goods, etc., by sale, if necessary.

    When an equal division of goods or chattels cannot be made in kind among those entitled, a court of equity may direct the sale of the same, and the distribution of the proceeds according to the rights of the parties.

    History. Code 1950, § 8-702; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Cotenancy, § 45.

    CASE NOTES

    Choses in action are not “goods and chattels.” —

    The words “goods and chattels” do not apply to choses in action, but only to visible and tangible property. First Nat'l Bank v. Holland, 99 Va. 495 , 39 S.E. 126 , 1901 Va. LEXIS 70 (1901) (decided under prior law).

    Trial courts not permitted to defer suits for partition. —

    If the trial courts were permitted to defer suits for partition, rights granted in this section requesting immediate partition would be denied to the party. Fitchett v. Fitchett, 6 Va. App. 562, 370 S.E.2d 318, 5 Va. Law Rep. 88, 1988 Va. App. LEXIS 75 (1988).

    Article 10. Sale, Lease, or Exchange of Certain Estates in Property.

    § 8.01-94. When sold, leased or exchanged.

    Whenever an interest in property, real or personal, is held by a person, natural or artificial, with remainder or limitation over contingent upon any event, or for his life or for the life of another, and there is limited thereon any other estate, vested or contingent, to any other such person, whether in being or to be thereafter born or created in any manner whatsoever, such person holding an interest in the property so subject to remainder or limitation over or for his own life, or his committee, guardian, if a minor, or conservator, or, if the estate so held be for the life of another, then his heir or personal representative, as the case may be, may for the purpose of obtaining a sale or leasing or exchange of the fee simple interest or absolute estate in such property, if the sale or leasing or exchange thereof is not prohibited by the instrument creating the estate, and the remaindermen, or any of them, whether in being or hereafter to be born or created, are from any cause incapable at the time of filing the bill as herein provided or of giving their assent, or the remainder or limitation over is contingent or defeasible, file a bill in equity in the circuit court stating plainly the property to be sold or leased or exchanged and all facts calculated to show the propriety of such sale or lease or exchange. A like bill may be filed for the sale or leasing or exchange of the remainder in such estate by a remainderman, his guardian, conservator or committee. All persons interested in the property presently or contingently, other than the plaintiff, shall be made defendants, and if such remaindermen be not born or created at such time of filing such bill, such suit shall not for such cause abate, but such unborn person or uncreated artificial person shall be made defendant and subject to the decree of the court by the name of “person unknown or person yet to be born or created,” and the court shall upon the filing of such bill appoint a guardian ad litem to defend the interest of such unborn person or uncreated artificial person. If it be clearly shown independently of any admissions in the pleadings that the interest of the plaintiff will be promoted and the rights of no other person will be violated thereby, the court may decree a sale or lease or exchange of the property or any part thereof, or of the remainder therein. In case of a sale on credit, the court shall take ample security. If such sale on credit be of real estate, a lien thereon shall be reserved. The title to any land acquired in any exchange herein provided for shall be held and owned by the same persons in the same way, to the same extent and subject to the same conditions that they owned the land given in such exchange.

    History. Code 1950, § 8-703.1; 1958, c. 271; 1977, c. 617; 1997, c. 801.

    REVISERS’ NOTE

    References in former § 8-703.1 to venue or jurisdiction have been deleted. See chapter 5 (Venue). The requirement of verification of the bill has been eliminated and the last sentence of former § 8-703.1 has been deleted as misleading.

    Cross references.

    For general provisions as to sale or lease of lands of persons under disabilities, see §§ 8.01-67 through 8.01-80 .

    Michie’s Jurisprudence.

    For related discussion, see 16 M.J. Remainders, Reversions and Executory Interests, § 25.

    § 8.01-95. Procedure in such case.

    The procedure in such suit and the investment of the proceeds of sale shall be in accordance with §§ 8.01-73 , 8.01-75 and 8.01-76 , so far as the same can be made applicable, and the court may, in its discretion, commute the life estate according to § 55.1-500 . In the case of a lease, however, the rents may be made payable direct to the person or persons entitled thereto, for the time being.

    History. Code 1950, § 8-703.2; 1977, c. 617.

    Cross references.

    For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

    Editor’s note.

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “55.1-500” for “55-269.1.”

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Process, § 15.

    Article 11. General Provisions for Judicial Sales.

    § 8.01-96. Decree for sale; how made; bond of commissioner.

    In decreeing a sale under any provisions of law, the court may provide for the sale of property in any part of the Commonwealth, and may direct the sale to be for cash, or on such credit and terms as it may deem best, and it may appoint one or more special commissioners to make such sale. No special commissioner, appointed by a court, shall receive money under a decree, until he gives bond, with approved security, before such court or its clerk, in a penalty to be prescribed by the court, conditioned upon the faithful discharge of his duties as such commissioner and to account for and pay over as the court may direct all money that may come into his hands as such commissioner.

    History. Code 1950, § 8-655; 1977, c. 617.

    Cross references.

    As to sale of property of persons under disabilities, see §§ 8.01-67 through 8.01-80 and § 8.01-85 . As to payment of small amounts to certain persons without the intervention of a fiduciary, see § 8.01-606 .

    CASE NOTES

    Analysis

    I.General Consideration.

    Editor’s note.

    II.Terms of Sale.

    Sale may be private. —

    A direction to a commissioner, in a decree for the sale of real estate, to receive private offers and report them to the court to be acted upon in vacation is within the discretion of the trial court, in order to obtain the best price for the land. Conrad v. Fuller, 98 Va. 16 , 34 S.E. 893 , 1900 Va. LEXIS 3 (1900).

    Contract of parties governs sales under mortgages and other instruments. —

    A court may direct the sale of property to be for cash, or on such credit and terms as it may deem best, but this rule does not apply to mortgages, deeds of trust, and other instruments, in which the terms of sale are agreed upon. In such cases the contract of the parties governs. Pairo v. Bethell, 75 Va. 825 , 1881 Va. LEXIS 60 (1881); Stimpson v. Bishop, 82 Va. 190 , 1886 Va. LEXIS 23 (1886).

    Realty of value should be sold on reasonable credit. —

    The general rule to be deduced from the decisions is that real property of value should be sold on a reasonable credit, unless under peculiar circumstances, and the circumstances to take the case out of general rule should appear by the record. Pairo v. Bethell, 75 Va. 825 , 1881 Va. LEXIS 60 (1881).

    Court may change terms of sale before confirmation. —

    So long as the sale is unconfirmed, and the property and the sale remain under the power of the court, it has the power to change the terms of the sale. Tebbs v. Lee, 76 Va. 744 , 1882 Va. LEXIS 75 (1882).

    Resale of land on default of purchaser. —

    Before there can be a decree of resale, it is proper and necessary that the purchaser have notice of the proceeding. The practice is to proceed by the service of a rule on the purchaser to show cause why the lands should not be resold. And upon the filing of a petition for a resale and a report showing that the purchase money has not all been paid, the court may direct such a rule. Thornton v. Fairfax, 70 Va. (29 Gratt.) 669, 1878 Va. LEXIS 4 (1878) (see also Clarkson v. Read, 56 Va. (15 Gratt.) 288 (1858); Long v. Weller, 70 Va. (29 Gratt.) 347 (1877); Berlin v. Melhorn, 75 Va. 639 (1881); Boyce v. Strother, 76 Va. 862 (1882); Ogden v. Davidson, 81 Va. 757 (1885)).

    Terms of resale held proper. —

    Where a judgment debtor bought his own land at a sale under a decree in a creditors’ suit against him, and failed to pay the purchase money, a resale on terms of one-fourth cash and the balance in one, two and three years was not inequitable under this section. Dickerson v. Clement, 87 Va. 41 , 12 S.E. 105 , 1890 Va. LEXIS 87 (1890).

    III.Confirmation of Sale.

    Discretion of court. —

    It lies within the discretion of the court ordering the sale to determine whether it will accept the bid and confirm the sale, or set it aside. Terry v. Coles, 80 Va. 695 , 1885 Va. LEXIS 110 (1885); Moore v. Triplett, 96 Va. 603 , 32 S.E. 50 , 1899 Va. LEXIS 108 (1899).

    Discretion is not arbitrary. —

    The court, in acting upon a report of a sale, does not exercise an arbitrary discretion, but a sound legal discretion in view of all the circumstances. It is to be exercised in the interest of fairness, prudence, and a just regard to the rights of all concerned. Berlin v. Melhorn, 75 Va. 639 , 1881 Va. LEXIS 47 (1881).

    Sale should be sustained if possible. —

    Sound policy requires that judicial sales should be sustained as far as possible, where it is consistent with the rights of others and the rule that innocent purchasers are favorites of the law. Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 , 1911 Va. LEXIS 53 (1911).

    Before confirmation, lesser grounds are sufficient. —

    Where a sale has not been confirmed, the reasons for setting it aside need not be so strong as they should be after confirmation. Todd v. Gallego Mills Mfg. Co., 84 Va. 586 , 5 S.E. 676 , 1888 Va. LEXIS 113 (1888).

    Confirmation may be set aside during term. —

    It is within the discretion of the court at any time during the term to set aside the decree of confirmation and rescind the sale, upon proper motion and notice to the purchaser and the parties concerned, for good cause shown. Langyher v. Patterson, 77 Va. 470 , 1883 Va. LEXIS 79 (1883).

    Confirmation cures defects. —

    Subsequent confirmation is equivalent to previous authority, cures departures from the terms prescribed, and cures all defects in the execution of the decree, except those founded in lack of jurisdiction or in fraud. It makes the sale the court’s own act, and renders it no longer executory, but executed. Langyher v. Patterson, 77 Va. 470 , 1883 Va. LEXIS 79 (1883).

    Any party may appeal from refusal to confirm sale. —

    From the refusal to confirm a sale and order for resale, any party may appeal, and to refuse suspension of the decree is error, but the Supreme Court will not reverse the decree for that error when it is right on its merits. Todd v. Gallego Mills Mfg. Co., 84 Va. 586 , 5 S.E. 676 , 1888 Va. LEXIS 113 (1888).

    Sale set aside for mistake, misrepresentation or fraud. —

    In a judicial sale, if it should be made to appear, either before or after the sale has been ratified, that there has been any injurious mistake, misrepresentation or fraud, the biddings will be reopened, the reported sale rejected or the order of ratification rescinded, and the property again sent into the market and resold. Merchants Bank v. Campbell, 75 Va. 455 , 1881 Va. LEXIS 27 (1881).

    Grounds for setting aside sale. —

    The following have been held to be grounds for setting aside sales: breach of duty by officer,.Brock v. Rice, 68 Va. (27 Gratt.) 812 (1876), fraud or mistake, Carr v. Carr, 88 Va. 735 , 14 S.E. 368 (1892), conduct preventing fair completion, Teel v. Yancey, 64 Va. (33 Gratt.) 691 (1880), sale on inclement day, Roberts v. Roberts, 54 Va. (13 Gratt.) 639 (1857), defect of title, Daniel v. Leitch, 54 Va. (13 Gratt.) 195 (1856), gross inadequacy of price, Coles v. Coles, 83 Va. 525 , 5 S.E. 673 (1887).

    Ordinarily, a commissioner to sell is not allowed to purchase the subject, either directly or indirectly. Such a purchase, however, is not absolutely void, but voidable only at the election of any party interested in the land. Hurt v. Jones, 75 Va. 341 , 1881 Va. LEXIS 18 (1881).

    Purchase by commissioner at resale. —

    Upon the failure of the purchaser at a judicial sale to pay the purchase money, there was a decree appointing a commissioner to resell the land. The commissioner himself purchased the land at the resale. No objection or exception to the commissioner’s purchase was made or taken by any party, the purchase money was paid, and the sale was approved and ratified. It was held that the sale was good, inasmuch as the full amount of the purchase money, for the payment of which the resale was ordered, was assured and paid to the parties entitled, and they could have received nothing more on a resale to another, for the surplus, if any, would have belonged to the purchaser at the original sale. Hurt v. Jones, 75 Va. 341 , 1881 Va. LEXIS 18 (1881).

    Advance bids. —

    In a proper case, where it would be just to all the parties concerned, the court may, in the exercise of a sound discretion, set aside a sale made by commissioners under a decree, and reopen the biddings upon the offer of an advance bid of a sufficient amount deposited or well secured. But it has never been held imperative upon the courts to set aside the sale and reopen the bids. It is a question addressed to the sound discretion of the courts, subject to review by the appellate tribunal, and the propriety of its exercise depends upon the circumstances of each case, and can only be rightfully exercised when it can be done with a due regard to the rights of all concerned, the purchaser included. Roudabush v. Miller, 73 Va. (32 Gratt.) 454, 1879 Va. LEXIS 80 (1879) (see also Effinger v. Ralston, 62 Va. (21 Gratt.) 430 (1871); Hudgins v. Lanier, 64 Va. (23 Gratt.) 494 (1873); Brock v. Rice, 68 Va. (27 Gratt.) 812 (1876); Curtis v. Thompson, 70 Va. (29 Gratt.) 474 (1877); Merchants Bank v. Campbell, 75 Va. 455 (1881); Berlin v. Melhorn, 75 Va. 639 (1881); Hansucker v. Walker, 76 Va. 753 (1882); Langyher v. Patterson, 77 Va. 470 (1883); Effinger v. Kenney, 79 Va. 551 (1884); Terry v. Coles, 80 Va. 695 (1885); Yost v. Porter, 80 Va. 855 (1885)).

    It is error to set aside a judicial sale solely because after the sale an advance bid of 10% has been made. Lillard v. Graves, 123 Va. 193 , 96 S.E. 169 , 1918 Va. LEXIS 16 (1918).

    IV.Bond of Commissioner.

    Bond must be given before commissioner receives money. —

    This section requires a bond of commissioners of sale, and the bond must be given before the commissioners receive any money under the decree, whether it is directed therein or not. McAllister v. Bodkin, 76 Va. 809 , 1882 Va. LEXIS 83 (1882).

    Waiver of bond requirement. —

    The bond with security required of a commissioner is for the benefit of those entitled to the proceeds of the sale. If he collects without giving bond, and they ratify his act and look to him for payment, no one else can complain or claim that any equity is raised in his favor. Lee v. Swepson, 76 Va. 173 , 1882 Va. LEXIS 15 (1882).

    Decree not requiring bond is not erroneous. —

    It is not error that the decree does not require the commissioner of sale to give bond and security; this section requires that he shall, before he collects any money. McAllister v. Bodkin, 76 Va. 809 , 1882 Va. LEXIS 83 (1882); Cooper v. Daugherty, 85 Va. 343 , 7 S.E. 387 , 1888 Va. LEXIS 41 (1888).

    Commissioners cannot execute bonds with each other as sureties. —

    Two commissioners were appointed to sell land, and were required before proceeding to act to execute a bond with security conditioned according to law. Each executed a separate bond with the other as his surety. It was held that this was not a compliance with the decree, and that though the bonds were given in court. Tyler v. Toms, 75 Va. 116 , 1880 Va. LEXIS 11 (1880).

    Purchaser must see that bond has been given. —

    This section is imperative, that a bond shall be given, and it is the duty of a purchaser at a judicial sale to see that the bond has been given before he pays his money to the commissioner, or he does it at his own risk. Hess v. Rader, 67 Va. (26 Gratt.) 746 (1875).

    And purchaser is liable for loss sustained thereby. —

    A commissioner who has not given bond as required has no authority to receive the purchase money, and the purchaser at the unauthorized private sale is responsible to the party who is entitled to the proceeds, for so much as has not been properly invested by the commissioner and cannot be made out of his estate. Hess v. Rader, 67 Va. (26 Gratt.) 746 (1875).

    The sale of the land was to be on credit, with bonds to be taken for the several deferred payments, and the title to be retained. As the bonds fell due, the purchaser paid the money to one of the commissioners, who had not given bond as required by this section, and who was not authorized by the decree to collect the purchase money. The commissioner deposited the money as collected in a bank to his credit as commissioner, not using it or mingling it with his own, and it was lost by the failure of the bank. It was held that the purchaser was bound to pay the purchase money of the land again, and that the commissioner, having received the money without authority, was liable to the purchaser for the amount so paid. Tyler v. Toms, 75 Va. 116 , 1880 Va. LEXIS 11 (1880).

    But commissioner is liable to purchaser. —

    Where a commissioner who had not executed the required bond receives the purchase money of a sale, he is liable to the purchaser for any loss sustained thereby. Hess v. Rader, 67 Va. (26 Gratt.) 746 (1875).

    And purchaser is subrogated to rights of creditor against commissioner. —

    If a purchaser should have to pay the purchase money a second time, he would be subrogated to the creditor’s rights under a decree requiring the commissioner to pay it. Lee v. Swepson, 76 Va. 173 , 1882 Va. LEXIS 15 (1882).

    Payment to commissioner who has not given bond is invalid. —

    Where the purchaser at a sale made under decree of court pays the purchase money to a commissioner who has not given the bond required by law, the payment is invalid, unless a certificate of the clerk that a bond was given was published with the advertisement of the sale. Whitehead v. Bradley, 87 Va. 676 , 13 S.E. 195 , 1891 Va. LEXIS 121 (1891).

    Land is liable for purchase money received and misapplied. —

    Where a purchaser at a judicial sale of land pays the purchase money to the commissioner, but the commissioner has not executed the bond required by the decree, or the bond executed by him is disapproved by the clerk, the purchaser has paid in his own wrong, and the land is liable for the purchase money received by the commissioner and misapplied, though the land has been conveyed by the commissioner to the purchaser, as the decree directed to be done when the purchase money was paid. Lloyd v. Erwin, 70 Va. (29 Gratt.) 598, 1877 Va. LEXIS 47 (1877).

    And person entitled is not required to proceed first against commissioner. —

    The parties entitled to the fund are not bound to proceed against the commissioner and his sureties in the bond he executed, but which the clerk disapproved, before proceeding against the land to have it subjected to the judgment of the purchase money misapplied by the commissioner. Lloyd v. Erwin, 70 Va. (29 Gratt.) 598, 1877 Va. LEXIS 47 (1877).

    § 8.01-97. Delinquent taxes to be ascertained.

    In every suit brought in this Commonwealth for the sale of lands for the payment of debts or to subject lands to the payment of liens binding thereon, it shall be the duty of the court, or any commissioner to whom the cause is referred, to ascertain all delinquent taxes on such land together with interest and penalties if any.

    History. Code 1950, § 8-656; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-656 has been simplified and language pertaining to the sale of land for delinquent taxes has been deleted since such a sale is provided for in § 58.1-3965 .

    CASE NOTES

    Editor’s note.

    This section was not written for the benefit of the delinquent landowner. Woodhouse v. Burke & Herbert Bank & Trust Co., 166 Va. 706 , 185 S.E. 876 , 1936 Va. LEXIS 231 (1936).

    It is error to decree sale before ascertaining liens. —

    Where there are various liens on the land of a debtor, it is premature and erroneous to decree a sale of the land to satisfy the liens, without first ascertaining all the liens existing against the land and determining and definitely fixing their respective amounts and priorities. Strayer v. Long, 83 Va. 715 , 3 S.E. 372 , 1887 Va. LEXIS 115 (1887); Bristol Iron, Coal & Coke Co. v. Caldwell, 95 Va. 47 , 27 S.E. 838 , 1897 Va. LEXIS 9 (1897); Artrip v. Rasnake & Son, 96 Va. 277 , 31 S.E. 4 , 1898 Va. LEXIS 89 (1898); Rush v. Dickenson County Bank, 128 Va. 114 , 104 S.E. 700 , 1920 Va. LEXIS 97 (1920); Tacklett v. Bolling, 172 Va. 326 , 1 S.E.2d 285, 1939 Va. LEXIS 241 (1939).

    § 8.01-98. Sales of land when purchase price insufficient to pay taxes, etc.

    In any proceedings for the sale of real estate or to subject real estate to the payment of debts, it appears to the court that the real estate cannot be sold for enough to pay off the liens of taxes, levies, and assessments returned delinquent against it, and it further appears that the purchase price offered is adequate and reasonable, such sale shall be confirmed, and the court shall decree the payment and distribution of the proceeds of such sale pro rata to the taxes, levies, and assessments due the Commonwealth or any political subdivision thereof, after having first deducted the cost of such proceedings in court. Such decree shall be certified to the treasurer who has charge of the delinquent tax books, and such treasurer shall cause the lien of such taxes, levies, and assessments to be marked satisfied upon the list of delinquent lands regardless of whether the same shall have been paid in full.

    History. Code 1950, § 8-657; 1977, c. 617; 2020, c. 644.

    The 2020 amendments.

    The 2020 amendment by c. 644, in the final sentence, substituted “treasurer” for “clerk of the appropriate court” near the beginning and “treasurer” for “clerk” near the middle.

    § 8.01-99. Bond required of special commissioner for sale.

    Except as hereinafter provided, no special commissioner shall advertise the property for sale or renting, or sell or rent the same, until he shall have given bond in a penalty to be prescribed by the court sufficient to cover at least the probable amount of the whole purchase money or such portion of the rent the court deems appropriate, and shall have obtained from such clerk a certificate that such bond has been given. The certificate or a copy thereof shall be appended to the advertisement; provided, however, that in any case of such sale or rental, the court may direct all the cash proceeds thereof to be deposited by the purchaser or lessee to the credit of such court in some bank to be designated by it, and may direct that all evidences of indebtedness arising from such transaction or rent be deposited for safekeeping with such bank or the clerk of such court and the court may in its discretion thereafter dispense with the bond.

    The clerk shall make the certificate whenever the bond has been given and note the same in the proceedings in the cause. The certificate or a copy thereof shall be returned with the report of the sale or renting.

    History. Code 1950, § 8-658; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-658 has been simplified and expanded. The court may consider “such portion” of the rent which it deems appropriate in determining the amount of the penalty bond for the rental of real estate. This flexibility may permit a reduction in cost of the bond.

    The provision for a clerk’s fee in former § 8-658 has been deleted as obsolete.

    Cross references.

    As to liability of purchaser who pays money to a commissioner who has not executed the required bond, see note to § 8.01-96 . See also § 8.01-101 .

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judicial Sales and Rentings, § 29.

    CASE NOTES

    Bond must be given before court requiring it, or judge or clerk thereof. —

    The bond required by this section to be given by commissioners to sell lands can only be given before the court which requires the bond to be given, or before the judge thereof, or the clerk of the court in his office, and it is error to direct the clerk of any other court to take it. Southwest Va. Mining Co. v. Chase, 95 Va. 50 , 27 S.E. 826 , 1897 Va. LEXIS 10 (1897) (decided under former version of this section).

    § 8.01-100. Liability of clerk for false certificate or failure to give bond.

    If any clerk make a certificate as to the bond, which is untrue, he and the sureties on his official bond shall be liable to any person injured thereby.

    History. Code 1950, § 8-661; 1977, c. 617; 1978, c. 718.

    REVISERS’ NOTE

    The criminal violation of former § 8-661 has been classified as a Class 3 misdemeanor.

    Cross references.

    As to penalties for false certificate or failure to give bond, see § 18.2-209.1 .

    § 8.01-101. Purchasers relieved of liability for purchase money paid to such commissioner.

    When the certificate pursuant to the provisions in § 8.01-99 shall have been published with an advertisement of the sale or renting of property, or when such bond shall have been given prior to a sale or renting not publicly advertised, any person purchasing or renting such property in pursuance of such advertisement or in pursuance of the decree or order of sale or renting, shall be relieved of all liability for the purchase money or rent, or any part thereof, which he may pay to any special commissioner, as to whom the proper certificate shall have been appended to such advertisement, or who shall have given the bond aforesaid.

    History. Code 1950, § 8-659; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judicial Sales and Rentings, § 97.

    CASE NOTES

    Applies to all judicial sales, whether original or resales, and a purchaser who seeks to avail himself of the protection afforded by it must show either that the commissioner to whom payments were made actually gave the bond required of him, or that the clerk’s certificate that such bond had been given was appended to the advertisement. The fact that a bond was required of and given by the same commissioner before making the original sale, and that the surety of the purchaser at the original sale became the purchaser at the resale, cannot change the result. Tompkins v. Dyerle, 102 Va. 219 , 46 S.E. 300 , 1904 Va. LEXIS 58 (1904) (decided under prior law).

    When payment invalid. —

    Where the purchaser at a sale made under decree of court pays the purchase money to a commissioner who has not given the bond required by law, the payment is invalid, unless a certificate of the clerk that bond has been given was published with the advertisement of sale. Whitehead v. Bradley, 87 Va. 676 , 13 S.E. 195 , 1891 Va. LEXIS 121 (1891) (see also Pulliman v. Thompkins, 99 Va. 602 , 39 S.E. 221 (1901)) (decided under prior law).

    § 8.01-102. Purchasers not required to see to application of purchase money.

    No purchaser or renter at a duly authorized sale or renting made by a receiver, personal representative, trustee, or other fiduciary shall be required to see to the application of the purchase money.

    History. Code 1950, § 8-660; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 13A M.J. Mortgages and Deeds of Trust, § 146.

    CASE NOTES

    Purchaser takes title free of equities. —

    Under former version of this section, if the purchaser pays the purchase money and conveyance is made to him, he takes the legal title free from the equities that attached to it in the hands of the trustee. Broun v. City of Roanoke, 172 Va. 227 , 1 S.E.2d 279, 1939 Va. LEXIS 233 (1939) (decided under prior law).

    Except where he does not pay purchase money. —

    It is true that under a former version of this section the purchaser from a trustee is not required to see to the application of purchase money; but, if he does not pay the purchase money, and legal title is conveyed to him, he takes it subject to the same equities as attached to it in the hands of the trustee. Ballard Bros. Fish Co. v. Stephenson, 49 F.2d 581, 1931 U.S. App. LEXIS 3229 (4th Cir.), cert. denied, 283 U.S. 864, 51 S. Ct. 656, 75 L. Ed. 1468, 1931 U.S. LEXIS 440 (1931) (see Burke v. Sweeley, 177 Va. 47 , 12 S.E.2d 763, 1941 Va. LEXIS 195 (1941) (decided under prior law).

    § 8.01-103. Special commissioner or other person appointed to do so to receive purchase money, etc.; liability of clerk for failure to give notice of appointment.

    The special commissioner, who makes the sale or renting, shall receive and collect all the purchase money or rent, unless some other person be appointed to collect the same and in such case the court shall require of such person bond with surety in such penalty as to it may seem fit. When such appointment is made, it shall be the duty of the clerk to give notice thereof, in writing, to the purchaser or lessee, to be served as other notices are required by law to be served; but no payment shall be made to the person so appointed, until he shall have given the bond required by the decree or order; provided, however, that if, before the purchaser or lessee has received notice of such appointment, he shall have made any payment on account of the purchase money or rent to the special commissioner, or any person appointed for the purpose, who made the sale or renting, such special commissioner, or other person, who made the sale or renting, and the sureties on his bond, shall be responsible for the money so paid, and the purchaser or lessee, who made the payment, shall not be responsible therefor.

    If any clerk fail to give the notice hereinbefore required to be given by him, he and the sureties on his official bond shall be liable to any person injured by such failure.

    History. Code 1950, § 8-662; 1977, c. 617; 1978, c. 718.

    REVISERS’ NOTE

    The criminal violation of former § 8-662 has been classified as a Class 4 misdemeanor.

    Cross references.

    As to failure of clerk to give notice of appointment of special commissioner to collect purchase money or rent, see § 18.2-209.2 .

    CASE NOTES

    The court and not the commissioner is the real seller at a judicial sale, and the commissioner is merely the ministerial agent of the court and the medium through which the purchaser makes an offer to the court. The proceeds of the sale are funds in the custody of the court and subject to its orders. French v. Pobst, 203 Va. 704 , 127 S.E.2d 137, 1962 Va. LEXIS 209 (1962) (decided under prior law).

    § 8.01-104. Repealed by Acts 1978, c. 718.

    Cross references.

    For present provisions as to larceny by special commissioner or receiver, see § 18.2-114.1 .

    § 8.01-105. Rule against special commissioner, purchaser, etc., for judgment for amounts due.

    Any court of this Commonwealth, may, at the instance of any party in interest, award a rule against any special commissioner or receiver appointed by or acting under the authority of such court, and against the surety of such commissioner or receiver, or against a purchaser at a judicial sale under a decree of such court, and against the surety or sureties of such purchaser, returnable to such date as the court may fix, to show cause why judgment shall not be entered against them for any amount which the court may ascertain to be due from such commissioner, receiver, or purchaser. A rule issued under this section shall be executed at least fifteen days before the return day thereof.

    History. Code 1950, § 8-664; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, §§ 23, 37.

    CASE NOTES

    Purpose. —

    This section was evidently intended to provide a simple and easy method of taking personal judgment against a defaulting purchaser and his sureties. Rush v. Dickenson County Bank, 128 Va. 114 , 104 S.E. 700 , 1920 Va. LEXIS 97 (1920) (decided under former corresponding provisions).

    Section is not exclusive. —

    While a rule may be issued against a commissioner under this section such method of procedure is not exclusive; and a reference to another commissioner to ascertain the amount due served the function of a rule to give notice and an opportunity to defend. French v. Pobst, 203 Va. 704 , 127 S.E.2d 137, 1962 Va. LEXIS 209 (1962) (decided under former corresponding provisions).

    Commissioner personally liable. —

    Court held the Special Commissioner of Sale personally liable for failing to account for petitioner’s judgment lien and ordered him to implead $79,452.28 to the court and provide notice to then-existing lien creditors who might have had a valid legal claim to the proceeds of the judicial sale. Nassabeh v. Montazami, 101 Va. Cir. 151, 2019 Va. Cir. LEXIS 23 (Fairfax County Feb. 7, 2019).

    § 8.01-106. How cause heard upon rule and judgment rendered.

    Upon the return of a rule executed under § 8.01-105 upon any of the parties thereto, the court may if neither party demand a jury, proceed to hear and determine all questions raised by such rule, and shall enter a judgment against such special commissioner, receiver, or purchaser, as the case may be, and his surety or sureties, for the amount appearing to be due by such commissioner, receiver or purchaser, or may enter judgment against such of them as have been summoned to answer such rule. If it appears in such proceeding that such commissioner, receiver, purchaser, or any of them, or their sureties is dead, or under a disability, then such rule shall be awarded against the personal representative of those dead, and the fiduciary of those who are under a disability, and judgment may be rendered jointly and severally against such personal representative, fiduciary and those laboring under no disability in the same proceeding.

    History. Code 1950, § 8-665; 1977, c. 617.

    § 8.01-107. Trial by jury of issues made upon rule.

    If, upon the return of such rule, any party thereto demand a trial by jury, the court shall order a trial by jury to ascertain what liability, if any, exists against any such special commissioner, receiver, or purchaser, and their sureties; and the court shall enter judgment on the verdict awarded by the jury. New trials may be granted as in other cases; and notwithstanding such rules be awarded and judgment be rendered against part only of the persons liable thereto, the court may award new rules and proceed to judgment against all the parties who are liable thereto. The provisions of this section, and §§ 8.01-105 and 8.01-106 , shall apply to any officers and their sureties, acting under the decree of the court.

    History. Code 1950, § 8-666; 1977, c. 617.

    § 8.01-108. When sureties of commissioner, purchaser, etc., proceeded against by rule.

    Whenever a special commissioner, a receiver, purchaser at a judicial sale, or his personal representative, or any of them, can be proceeded against by rule for the recovery of money under §§ 8.01-105 , 8.01-106 and 8.01-107 , the surety of such commissioner, receiver, or purchaser, and the personal representatives of such sureties, may also be proceeded against under such sections.

    History. Code 1950, § 8-667; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, § 23.

    § 8.01-109. Commission for selling, collecting, etc.; each piece of property to constitute separate sale.

    For the services of commissioners or officers under any decree for a sale, including the collection and paying over of the proceeds, there may be allowed a commission of five percent on amounts up to and including $100,000, and two percent on all amounts above $100,000. If the sale is made by one commissioner or officer and the proceeds collected by another, the court under whose decree they acted shall apportion the commission between them as may be just.

    For the purposes of this section, each piece of property so sold shall constitute a separate sale, even though more than one piece of property is sold under the same decree.

    History. Code 1950, § 8-669; 1950, p. 459; 1966, c. 416; 1974, c. 197; 1977, c. 617; 1993, c. 311.

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Costs, § 3.

    CASE NOTES

    Priority of commissioner’s claim for fees. —

    By fixing the amount of the commission in a judicial sale, the general assembly intended that such commission be paid from the proceeds of that sale and a circuit court thus properly directed payment of the fees of a special ommissioner from the sale proceeds before any distribution of the funds to the holder of the first deed of trust. Homeside Lending, Inc. v. Unit Owners Ass'n of Antietam Square Condo., 261 Va. 161 , 540 S.E.2d 894, 2001 Va. LEXIS 1 (2001).

    CIRCUIT COURT OPINIONS

    Commission for each property. —

    Sale of each of the properties, despite the properties being included in a single purchase offer and their sales being approved in a single decree, could generate a separate commission for the special commissioners because the express statutory language provided that each piece of property so sold would constitute a separate sale. Haworth v. Haworth, 100 Va. Cir. 349, 2018 Va. Cir. LEXIS 624 (Norfolk Nov. 26, 2018).

    Commission that was more than double the maximum allowable statutory commission had there been a single aggregate sale would be excessive; thus, defendants were each responsible for their respective share of the joint special commissioners’ commissions. Haworth v. Haworth, 100 Va. Cir. 349, 2018 Va. Cir. LEXIS 624 (Norfolk Nov. 26, 2018).

    Flexibility in awarding commission. —

    Statute affords courts great flexibility in awarding commissions, as its provision regarding the Special Commissioner commission is permissive and not mandatory. Haworth v. Haworth, 100 Va. Cir. 349, 2018 Va. Cir. LEXIS 624 (Norfolk Nov. 26, 2018).

    Attorney fees. —

    Statutory commission is designed to compensate the Special Commissioners for what they normally would charge as attorney’s fees for fulfilling their roles as Special Commissioners; therefore, by awarding a commission, the Special Commissioners are not entitled to any additional attorney’s fees for services they provided as Special Commissioners. Haworth v. Haworth, 100 Va. Cir. 349, 2018 Va. Cir. LEXIS 624 (Norfolk Nov. 26, 2018).

    § 8.01-110. Appointment of special commissioner to execute deed, etc.; effect of deed.

    A court in a suit wherein it is proper to decree the execution of any deed or writing may appoint a special commissioner to execute the same on behalf of any party in interest and such instrument shall be as valid as if executed by the party on whose behalf it is so executed.

    History. Code 1950, § 8-670; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judicial Sales and Rentings, § 114.

    CASE NOTES

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    Deed passes title of all parties. —

    A deed by a special commissioner appointed and empowered by the court to convey under this section will pass the title of all the parties to the suit. Hurt v. Jones, 75 Va. 341 , 1881 Va. LEXIS 18 (1881).

    Commissioner cannot convey land in another state. —

    A person within the Commonwealth may be decreed to execute a conveyance for lands lying in another state, or to cancel a deed for such lands obtained by fraud; but the courts of this State are without jurisdiction to sell and convey land situated beyond the limits of the State. Poindexter v. Burwell, 82 Va. 507 , 1886 Va. LEXIS 65 (1886); Gibson v. Burgess, 82 Va. 650 , 1886 Va. LEXIS 84 (1886); Wimer v. Wimer, 82 Va. 890 , 5 S.E. 536 , 1886 Va. LEXIS 93 (1886).

    Relief should be of an in rem nature. —

    In a suit for specific performance of a contract to sell land, where personal service was had outside the State, the language of the decree directing the defendant to perform the contract and convey the property to the complainant made it an in personam decree, and hence it went beyond permissible limits. If the complainant was entitled to any relief, it should be of an in rem nature and accomplished by the appointment of a commissioner as provided by this section. Cranford v. Hubbard, 208 Va. 689 , 160 S.E.2d 760, 1968 Va. LEXIS 168 (1968).

    Appointment proper. —

    Order appointing the husband’s lawyer as a special commissioner with the authority to execute documents on behalf of the wife regarding the sale of the parties’ home was proper because the trial court had authority under § 8.01-110 to make the appointment and did not abuse its discretion in doing so; the lawyer provided the necessary accounting and did not charge a fee. Tromza v. Vossburg, 2013 Va. App. LEXIS 125 (Va. Ct. App. Apr. 23, 2013).

    CIRCUIT COURT OPINIONS

    Conveyance by special commissioner. —

    Trial court declined to enter the decree that the parties presented to it regarding the settlement agreement concerning their property and the partition suit that the one party brought against the second party because there was not adequate evidence in the record to support the entry of such a decree, but the trial court also noted that if the parties so desired, they could have a special commissioner appointed to convey an interest in the real property based on a private settlement agreement; since that would be a conveyance by the special commissioner rather than the trial court, there was no need for the kind of evidentiary support that the trial court required for entry of the party’s decree. Early v. Smith, 68 Va. Cir. 492, 2004 Va. Cir. LEXIS 80 (Madison County May 13, 2004).

    § 8.01-111. What such deed to show.

    Every deed executed by any such commissioner pursuant to the provisions of § 8.01-110 shall specifically set out as nearly as practicable the name of the person on whose behalf the same is executed; provided, that when such deed conveys the right, title or interest of the heirs of a person who is dead it shall be sufficient for such deed to set out that the same is executed on behalf of the heirs of such decedent. But a failure to comply with the provisions of this section shall not affect or invalidate any such deed; and all deeds heretofore executed by any such commissioner in which such persons or heirs are not specifically set out are hereby validated.

    History. Code 1950, § 8-671; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judicial Sales and Rentings, § 113.

    § 8.01-112. Reinstatement of cause to appoint special commissioner to make deed.

    Any ended cause may be reinstated for the purpose of entering a decree directing a deed to be made to any party clearly shown by the record to be entitled thereto, or for the purpose of substituting a new commissioner to make a deed in the place of one previously appointed for that purpose, but who has died or become incapacitated to act before making such deed.

    History. Code 1950, § 8-672; 1977, c. 617.

    § 8.01-113. When title of purchaser at judicial sale not to be disturbed.

    If a sale of property is made under a decree of a court, and such sale is confirmed, the title of the purchaser at such sale shall not be disturbed unless within twelve months from such confirmation the sale is set aside by the trial court or an appeal is taken to the Court of Appeals or allowed by the Supreme Court, and a decree is therein afterwards entered requiring such sale to be set aside. This limitation shall not affect any right of restitution of the proceeds of sale.

    History. Code 1950, § 8-673; 1977, c. 617; 1984, c. 703.

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judicial Sales and Rentings, §§ 83, 147, 149.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    This section cannot serve to breathe life into a void decree of sale. Forrer v. Brown, 221 Va. 1098 , 277 S.E.2d 483, 1981 Va. LEXIS 254 (1981).

    One not a party may not be divested of ownership. —

    This section cannot authorize a court by judicial sale to divest one not a party to the suit of his ownership of property. Forrer v. Brown, 221 Va. 1098 , 277 S.E.2d 483, 1981 Va. LEXIS 254 (1981).

    When mistake merits setting aside sale. —

    Not every mistake merits the setting aside of a previously confirmed judicial sale. The mistake must be mutual unless it was induced by the fraud or culpable negligence of the other. Branton v. Jones, 222 Va. 305 , 281 S.E.2d 799, 1981 Va. LEXIS 305 (1981).

    Unilateral mistake as to property sold in gross. —

    Vendors were not entitled to have a sale of property, sold in gross, set aside where the vendors were unilaterally mistaken as to the acreage of the property sold, since the buyer’s mere silence concerning the correct boundaries and acreage of the property did not constitute fraud. Branton v. Jones, 222 Va. 305 , 281 S.E.2d 799, 1981 Va. LEXIS 305 (1981).

    Mistake irrelevant where sale is in gross. —

    Where a contract for the sale of land is in gross, such contract is a contract of hazard. The parties to such a sale assume the risk of a deficiency or excess in the number of acres in the property. Where the parties intend a contract of hazard regarding a property’s acreage, it is immaterial whether or not the sellers or the buyer, or both, were mistaken as to the number of acres in the tract. Branton v. Jones, 222 Va. 305 , 281 S.E.2d 799, 1981 Va. LEXIS 305 (1981).

    Discretion of court in deciding whether to confirm sale. —

    Prior to confirmation, a court can exercise considerable discretion in deciding whether to confirm a sale, but after confirmation the purchaser at a judicial sale is as much entitled to the benefit of his purchase as a purchaser in pais, and the sale in the one case can be set aside only on such grounds as would be sufficient in the other. Branton v. Jones, 222 Va. 305 , 281 S.E.2d 799, 1981 Va. LEXIS 305 (1981).

    Grounds for setting aside sale after confirmation. —

    After confirmation, a judicial sale cannot be set aside except for fraud, mistake, surprise, or other cause for which equity would give like relief, if the sale had been made by the parties in interest, instead of by the court. Branton v. Jones, 222 Va. 305 , 281 S.E.2d 799, 1981 Va. LEXIS 305 (1981).

    II.Decisions Under Prior Law.

    Editor’s note.

    This section is to be liberally construed. Brenham v. Smith, 120 Va. 30 , 90 S.E. 657 , 1916 Va. LEXIS 155 (1916).

    Section applies to sales of lands of infants made in suits properly brought for that purpose. Lancaster v. Barton, 92 Va. 615 , 24 S.E. 251 , 1896 Va. LEXIS 24 (1896) (see also Cooper v. Hepburn, 56 Va. (15 Gratt.) 551 (1858)).

    But it is not to be construed to contravene statutes protecting infants. —

    So far as the statutes for the sale of infants’ lands are concerned, it will not be questioned that the primary and controlling consideration underlying their enactment was the welfare of the infants whose lands are to be sold, and in construing this section the purpose to ignore or contravene this consideration may not be imputed to the legislature. Brenham v. Smith, 120 Va. 30 , 90 S.E. 657 , 1916 Va. LEXIS 155 (1916).

    It does not apply to a proceeding to compel purchasers to comply with their contracts by paying the purchase money to the persons legally entitled to receive it. Whitehead v. Bradley, 87 Va. 676 , 13 S.E. 195 , 1891 Va. LEXIS 121 (1891).

    Sale is not complete until confirmation and conveyance. —

    Whether the sale be by a master, commissioner, or other functionary authorized by the court to conduct the sale, the bargain is not ordinarily considered as complete until the sale is confirmed and the conveyance is made. Brock v. Rice, 68 Va. (27 Gratt.) 812, 1876 Va. LEXIS 73 (1876); Terry v. Coles, 80 Va. 695 , 1885 Va. LEXIS 110 (1885).

    Section does not protect sales under void decrees. —

    In no case has this section been applied where the relief sought was based on a void decree. So where the court was without jurisdiction to issue the decree, this section cannot be applied. Gee v. McCormick, 142 Va. 173 , 128 S.E. 541 , 1925 Va. LEXIS 328 (1925) (see also Brenham v. Smith, 120 Va. 30 , 90 S.E. 657 (1916)).

    Since the decree of sale was void as to complainants, the purchasers under it could take no benefit from the provision of this section. Finkel Outdoor Prods., Inc. v. Bell, 205 Va. 927 , 140 S.E.2d 695, 1965 Va. LEXIS 156 (1965).

    Title is not to be disturbed although decree is erroneous or voidable. —

    It appears from the history and the language of this section that the title of a purchaser at a judicial sale shall not be disturbed after 12 months from the date of the decree of confirmation, even though the decree is erroneous or voidable. Robertson v. Stone, 199 Va. 41 , 97 S.E.2d 739, 1957 Va. LEXIS 159 (1957).

    Confirmation relates back to sale. —

    After the sale is confirmed, the confirmation relates back to the sale, and the purchaser is entitled to everything he would have been entitled to had the confirmation and conveyance been contemporaneous with the sale. Taylor v. Cooper, 37 Va. (10 Leigh) 317, 1839 Va. LEXIS 35 (1839).

    Limitation is suspended by bill of review. —

    Where the decree setting aside the proceedings under the original bill and dismissing the same was entered 12 months after the confirmation of the sale, but the bill of review was filed before the expiration of the 12 months, the period of limitation was suspended until the entry of the decree complained of. Gee v. McCormick, 142 Va. 173 , 128 S.E. 541 , 1925 Va. LEXIS 328 (1925) (see Anderson v. Biazzi, 166 Va. 309 , 186 S.E. 7 (1936)).

    This section limits § 8.01-322 , which allows a person not served with process to have a rehearing of the case within two years from the date of judgment or decree and any injustice corrected. Robertson v. Stone, 199 Va. 41 , 97 S.E.2d 739, 1957 Va. LEXIS 159 (1957).

    Section does not defeat title of one not party to suit. —

    It was clearly not the purpose of the legislature by the enactment of this section to authorize a court by judicial sale to divest one of his ownership of property, who is not a party to the suit. Such a procedure would be without due process of law. Mountain Mission School, Inc. v. Buchanan Realty Corp., 207 Va. 518 , 151 S.E.2d 403, 1966 Va. LEXIS 253 (1966).

    CIRCUIT COURT OPINIONS

    Action barred. —

    Injury to plaintiff resulted at time a court order was entered approving a sale of certain property on July 7, 2015, and plaintiff had 12 months to pursue its action to either set aside the sale or take some other measure to protect its interest. Plaintiff’s action, which was filed on February 8, 2017, was time barred by the statute of limitations. Frost Funeral Home, LLC v. Dolinger, 96 Va. Cir. 34, 2017 Va. Cir. LEXIS 165 (Washington County May 31, 2017).

    Article 12. Detinue.

    § 8.01-114. When property to be taken by officer; summary of evidence, affidavits and report to be filed.

    1. A proceeding in detinue to recover personal property unlawfully withheld from the plaintiff may be brought on a warrant or motion for judgment if pretrial seizure is not sought at the time of filing.A petition in detinue for pretrial seizure pursuant to this article may be filed either to commence the detinue proceeding or may be filed during the pendency of a detinue proceeding which commenced on a warrant or motion for judgment.  If a petition is filed, it shall:
      1. Describe the kind, quantity and estimated fair market value of the specific personal property as to which plaintiff seeks possession;
      2. Describe the basis of the plaintiff’s claim of entitlement to recover the property, with such certainty as will give the adverse party reasonable notice of the true nature of the claim and the particulars thereof and, if based on a contract to secure the payment of money, the amount due on such contract; and
      3. Allege one or more of the grounds mentioned in § 8.01-534 and set forth specific facts in support of such allegation. Further, if a petition is filed, a judge, or a magistrate appointed pursuant to Article 3 (§ 19.2-33 et seq.)  of Chapter 3 of Title 19.2, may issue an order or other process directed to the sheriff or other proper officer, as the case may be, commanding him to seize the property for the recovery of which such action or warrant is brought, or a specified portion thereof, and deliver same to the plaintiff pendente lite under the circumstances hereinafter set forth.
    2. The judge or the magistrate may issue such an order or other process in accordance with the prayer of the petition after an ex parte review of the petition only upon a determination that: (i) the petition conforms with subsection A and (ii) there is reasonable cause to believe that the grounds for detinue seizure described in the petition exist.  The plaintiff praying for an order shall, at the time that he files his petition, pay the proper costs, fees and taxes, and in the event of his failure to do so, the order shall not be issued.
    3. The judge or magistrate, as the case may be, may receive evidence only in the form of a sworn petition which shall be filed with the papers in the cause.
    4. The order commanding the seizure of property shall be issued and served together with the form for requesting a hearing on a claim of exemption from seizure as provided in § 8.01-546.1 .  The order shall be issued and returned as provided in § 8.01-541 and may be issued or executed on any day, including a Saturday, Sunday or other legal holiday. Service shall be in accordance with the methods described in § 8.01-487.1 .  The provisions of § 8.01-546.2 shall govern claims for exemption.

    History. Code 1950, § 8-586; 1973, c. 408; 1974, c. 122; 1977, c. 617; 1978, c. 403; 1986, c. 341; 1993, c. 841.

    REVISERS’ NOTE

    This section, former § 8-586, and others in this article were amended in 1974 to make the procedure comply with the requirements set out in Fuentes v. Shevin, 407 U.S. 67 (1972) and Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969). These two cases were further discussed in Mitchell v. W. T. Grant, 416 U.S. 600 (1974) in which the Supreme Court restricted the scope of the two former cases. In general, no substantive changes have been made to former § 8-586 ff.

    Cross references.

    As to hearing on order or process issued under this section, see § 8.01-119 .

    For rules of court relating to practice and procedure in civil actions, see Rules 3:1 through 3:25.

    Law Review.

    For comment on cumulative remedies under article 9 of the U.C.C., see 14 Wm. & Mary L. Rev. 213 (1972).

    For article discussing the constitutionality of Virginia’s detinue and attachment statutes, see 12 U. Rich. L. Rev. 157 (1977).

    For article on the abolition of the forms of action in Virginia, see 17 U. Rich. L. Rev. 273 (1983).

    For comment, “Commonwealth and Constitution,” see 48 U. Rich. L. Rev. 415 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Detinue and Replevin, §§ 2, 10.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Fixing damages on basis of affidavit held error where not supported by evidence. —

    The trial court erred in relying exclusively on an affidavit filed by the plaintiff in fixing the amount of the judgment when it was clear that the evidence at the hearing did not support the amount awarded. Before fixing the amount of the final judgment, the court should have held a further hearing on the damage issue. At that hearing, additional relevant evidence on the issue of damages should have been received from all parties and the respective parties should have been allowed to prove with reasonable certainty the worth of the property seized by the plaintiff. J.I. Case Co. v. United Va. Bank, 232 Va. 210 , 349 S.E.2d 120, 3 Va. Law Rep. 934, 1986 Va. LEXIS 247 (1986).

    Judgment against plaintiff where property seized and placed beyond court’s jurisdiction. —

    Where the plaintiff, after seizing the property under authority of statute and placing it beyond the jurisdiction of the court, decides to manipulate the statutory scheme by exercising the privilege of nonsuit, the detinue statutes contemplate entry of a specific judgment in the detinue proceedings against the plaintiff for the value of the property. J.I. Case Co. v. United Va. Bank, 232 Va. 210 , 349 S.E.2d 120, 3 Va. Law Rep. 934, 1986 Va. LEXIS 247 (1986).

    Mandamus for forced entry error. —

    Where under the common law, it was unlawful for a sheriff to break the doors of a person’s house to arrest that person in a civil suit in debt or trespass, where this venerable principle underlies the whole law dealing with the right to break and enter a dwelling house for civil recovery of property, and where the General Assembly has not plainly manifested an intent to abrogate this common law principle, the trial court erred in issuing writ of mandamus directing the sheriff to use due diligence and reasonable means to execute all validly issued detinue seizure orders and to take all appropriate action necessary to seize personal property including forced entry into the premises where such property was located or believed to be located. Williams v. Matthews, 248 Va. 277 , 448 S.E.2d 625, 1994 Va. LEXIS 132 (1994).

    II.Decisions Under Prior Law.

    Editor’s note.

    The writ of seizure under the provisions of this section is intended to be only ancillary to the action of detinue, and can only be issued in a pending suit. Preston v. Legard, 160 Va. 364 , 168 S.E. 445 , 1933 Va. LEXIS 217 (1933).

    Jurisdiction of equity to decree delivery of papers not affected. —

    This article does not affect the jurisdiction of a court of equity to decree the specific delivery of title papers to heirs at law, devisees and other persons properly entitled thereto where such papers are wrongfully withheld. Kelly v. Lehigh Mining & Mfg. Co., 98 Va. 405 , 36 S.E. 511 , 1900 Va. LEXIS 56 (1900).

    Insolvency of defendant no ground for injunction. —

    The insolvency of a defendant in detinue is no ground for an injunction to prevent the removal or disposition of the subject of litigation. An ample remedy is afforded the plaintiff by this section. Langford & Bro. v. Taylor, 99 Va. 577 , 39 S.E. 223 , 1901 Va. LEXIS 81 (1901).

    CIRCUIT COURT OPINIONS

    Statute of frauds held inapplicable. —

    Where landlords sued their tenants for detinue based on an oral agreement for the sale of personalty located at the leased premises, pursuant to § 8.2-201(3)(b), the tenants’ statute of frauds defense regarding contracts for the sale of goods failed in the face of their sworn testimony concerning that oral agreement. Lee v. Park, 73 Va. Cir. 219, 2007 Va. Cir. LEXIS 80 (Fairfax County Apr. 4, 2007).

    Landlord could not recover fixtures or insufficiently identified personalty. —

    Landlords’ detinue claim against their tenants under § 8.01-114 et seq. failed because the alleged agreement largely involved a sale of fixtures rather than personalty, the landlords failed to prove the items of personal property sought had value, and they failed to identify them with sufficient specificity. Lee v. Park, 73 Va. Cir. 219, 2007 Va. Cir. LEXIS 80 (Fairfax County Apr. 4, 2007).

    § 8.01-115. Bond required as prerequisite.

    No such order or process, however, shall be issued until a bond, conforming with the requirements of § 8.01-537.1 , is posted with the judge or magistrate, in a penalty at least double the estimated fair market value of the property claimed, payable to the defendant, with the additional condition to redeliver the property so seized to the defendant, or to the person from whose possession it was taken, if the right to the possession shall be adjudged against the plaintiff.

    History. Code 1950, § 8-587; 1977, cc. 230, 617; 1986, c. 341; 1993, c. 841.

    Editor’s note.

    Acts 1977, c. 230, amended former § 8-587, corresponding to this section. In the section as it stood prior to the amendment, the bond was “to be approved by and filed with the clerk or trial justice.” The amendment substituted “judge, substitute judge or magistrate” for “or trial justices” in the quoted phrase. Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the Code Commission has substituted “clerk, judge, substitute judge or magistrate” for “court” near the beginning of § 8.01-115 as enacted by Acts 1977, c. 617, in the section as set out above.

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Detinue and Replevin, § 19.

    CASE NOTES

    Court retains jurisdiction over property until parties’ rights determined. —

    The right of possession given to a detinue plaintiff under Virginia’s statutory scheme contemplates retention of the seized property within the jurisdiction of the trial court until the substantive rights of the parties are finally determined. J.I. Case Co. v. United Va. Bank, 232 Va. 210 , 349 S.E.2d 120, 3 Va. Law Rep. 934, 1986 Va. LEXIS 247 (1986).

    Omission of condition as to payment of damages does not vitiate bond. —

    A bond providing for payment of costs, but omitting all reference to payment of damages, also prescribed, is not totally vitiated by such omission, but may be sued on as a statutory bond for the one good condition expressed therein. Jackson v. Hopkins, 92 Va. 601 , 24 S.E. 234 , 1896 Va. LEXIS 22 (1896) (decided under prior law).

    § 8.01-116. Return of property to defendant or other claimant.

    1. Subject to the provisions of subsection B below, the defendant in any such proceeding, or any other person claiming title to the property so seized and taken possession of by the officer, may have such property returned to him at any time after such seizure upon executing a bond, with sufficient surety, to be approved by the officer, payable to the plaintiff, in a penalty at least double the estimated value of the property. The bond shall contain a condition to (i) pay all costs and damages which may be awarded against the defendant in the proceeding and all damages which may accrue to any person by reason of the return of the property to the defendant or the claimant and (ii) have the property forthcoming to answer any judgment or order of the court or judge respecting the same. The bond shall be delivered to the officer and returned by him to the office of the clerk.  The officer, on receiving the bond, shall forthwith return the property taken by him to the defendant or any other person claiming title thereto or from whose possession it was taken.
    2. In any such proceeding, upon application of the defendant after reasonable notice to the plaintiff or his attorney, the judge of the court in which the proceeding is pending may order the property returned to the defendant upon such lesser security and upon such terms as in the nature of the case may be just and reasonable.
    3. If no bond or security is delivered to the officer after his seizing and taking possession of such property, the property, if in the hands of the officer, shall be kept by him. However, if the property is perishable or expensive to keep, it may be sold by order of the court in the same manner as if it were a sale under execution.

    History. Code 1950, § 8-588; 1973, c. 408; 1977, c. 617; 1993, c. 841.

    CASE NOTES

    Court retains jurisdiction over property until parties’ rights determined. —

    The right of possession given to a detinue plaintiff under Virginia’s statutory scheme contemplates retention of the seized property within the jurisdiction of the trial court until the substantive rights of the parties are finally determined. J.I. Case Co. v. United Va. Bank, 232 Va. 210 , 349 S.E.2d 120, 3 Va. Law Rep. 934, 1986 Va. LEXIS 247 (1986).

    § 8.01-117. Exceptions to sufficiency of bonds.

    Either party may file exceptions to the sufficiency of the bond of the other or of the claimant of the property, if he has given bond, or such claimant may file exceptions to the sufficiency of the bond of either party. The court before whom the proceeding is pending, may, on the motion of either party or of the claimant, after reasonable notice to the others, pass upon such exceptions and make such order thereupon as may be just and reasonable.

    History. Code 1950, § 8-589; 1977, c. 617; 1993, c. 841.

    CASE NOTES

    Exceptions of claimant to bond do not alter status of parties. —

    It was contended that the corporation court had jurisdiction to issue an alias summons against a defendant because his wife, as a claimant, by an indorsement of her exceptions to the sufficiency of the seizure bond filed in the papers, made herself a party to the action. There was no merit in this contention. The plaintiff in no wise made the wife a party to the suit, or contemplated that she should be a party, and the fact that she took exception to the sufficiency of the bond under this section did not alter the status of the contemplated defendant. Preston v. Legard, 160 Va. 364 , 168 S.E. 445 , 1933 Va. LEXIS 217 (1933) (decided under prior law).

    § 8.01-118. Repealed by Acts 1986, c. 341.

    § 8.01-119. Hearing to review issuance of order or process under § 8.01-114 or to consider request for such order or process.

    1. Within thirty days after the issuance of any ex parte order or process pursuant to § 8.01-114 , or promptly upon application of either party, and in either event after reasonable notice, the court in which such proceeding is pending shall conduct a hearing to review the decision to issue the order or other process described in § 8.01-114 , or to consider the request of the plaintiff for issuance of such order or other process, whether or not the plaintiff has attempted to previously obtain an order pursuant to § 8.01-114. The hearing may be combined with a prompt hearing held pursuant to § 8.01-546.2 on an exemption claimed or a trial on the merits or both.  If combined with a hearing on an exemption claim, the hearing shall be conducted within ten business days of the filing of the request for a hearing.  If the plaintiff gives reasonable notice of his intention to apply for such an order or process before the court, such hearing may be on the return day of the warrant. Evidence may be presented in the same manner as in subsection B of § 8.01-114.
    2. At the conclusion of the hearing, if the evidence establishes the facts set forth in subdivision 1 of subsection A of § 8.01-114 , and the court is satisfied from the evidence that (i) one or more of the grounds set forth in § 8.01-534 exist, (ii) there is good reason to believe that the defendant is insolvent, so that any recovery against him for the alternate value of the property and for damages and costs will probably prove unavailing, or (iii) the plaintiff may suffer other irreparable harm if his request is denied, and if it further appears to the court that there is a substantial likelihood that the plaintiff’s allegations will be sustained at the trial, then the court shall issue the order or other process requested by the plaintiff, or let stand an order issued in the cause pursuant to § 8.01-114 .If the decision of the court is in favor of the defendant, the former order or process issued in the cause shall be abated and the property returned to the possession of the person from whom it was taken to abide the final trial of the action or warrant. Proof of insolvency as grounds for possession of goods by the plaintiff shall not be introduced for purposes of affirming a prior ex parte order, but only upon an initial application for possession after reasonable notice.
    3. Issuance of any order or process pursuant to this section shall be subject to the provisions of §§ 8.01-115 and 8.01-116 .

    History. Code 1950, § 8-591; 1973, c. 408; 1977, c. 617; 1986, c. 341; 1993, c. 841.

    CIRCUIT COURT OPINIONS

    Preclusion. —

    When a former employer sued a former employee for, inter alia, breach of fiduciary duty and misappropriation of trade secrets, a notation entered in a detinue action the employer previously filed against the former employee stating “Vacated, Dismissed 1/9/04” was not the kind of final judgment in that action that had any kind of preclusive effect in the employer’s subsequent suit against the former employee because, among other reasons, a final trial could still occur in the detinue action under § 8.01-119 . Mario Indus. of Va., Inc. v. Cook, 68 Va. Cir. 495, 2004 Va. Cir. LEXIS 82 (Roanoke May 27, 2004).

    § 8.01-120. No verdict as to some items; omission of price or value.

    If in such detinue action, on an issue concerning several things, in one or more counts, no verdict be found for part of them, it shall not be error, but the plaintiff shall be barred of his title to the things omitted; and if the verdict omit the price or value, the court may at any time have a jury impaneled to ascertain the same.

    History. Code 1950, § 8-592; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Detinue and Replevin, § 14.

    CIRCUIT COURT OPINIONS

    Items not identified in verdict form. —

    Although this section provided that if a verdict in a detinue action was not found for some of the items claimed, that verdict was not in error, a new trial was awarded on all issues involving the status of the items that were not identified in the first part of the verdict form. Coker v. Miller, 71 Va. Cir. 142, 2006 Va. Cir. LEXIS 77 (Greene County June 15, 2006).

    § 8.01-121. Final judgment.

    When final judgment is rendered on the trial of such detinue proceeding, the court shall dispose of the property or proceeds according to the rights of those entitled. When, in any such proceeding, the plaintiff prevails under a contract which, regardless of its form or express terms, was in fact made to secure the payment of money to the plaintiff or his assignor, judgment shall be for the recovery of the amount due the plaintiff thereunder or for the specific property, and costs. The defendant shall have the election of paying the amount of such judgment or surrendering the specific property. The court may grant the defendant a reasonable time not exceeding thirty days, within which to make the election upon such security being given as the court may deem sufficient. When the property involves an animal as defined in § 3.2-6500, the court may order the return of the animal to the prevailing plaintiff without regard to any alternative method of recovery.

    If the defendant elects to surrender the property as aforesaid, upon delivery of the property to the plaintiff or repossession thereof by him, the plaintiff may proceed to sell the property in accordance with the applicable provisions of the Uniform Commercial Code (Part 6 (§§ 8.9A-601 et seq.) of Title 8.9A) with all the rights and responsibilities therein provided.

    History. Code 1950, § 8-593; 1964, c. 219; 1977, c. 617; 1987, c. 1; 1993, c. 841.

    REVISERS’ NOTE

    Former § 8-593 has been modified to allow the plaintiff to recover a deficiency judgment.

    Cross references.

    As to affirmation of judgment for specific personal property, see § 8.01-123 .

    As to what writs may issue on judgments for personal property, see § 8.01-472 .

    Editor’s note.

    At the direction of the Virginia Code Commission, “§ 3.2-6500” was substituted for “§ 3.1-796.66” to conform to Acts 2008, c. 860.

    Law Review.

    For note, “Effect of the Uniform Commercial Code on Virginia Law,” see 20 Wash. & Lee L. Rev. 267 (1963).

    Michie’s Jurisprudence.

    For related discussion, see 3C M.J. Commercial Law, § 95.

    CASE NOTES

    Effect of bankruptcy provision. —

    Bankruptcy law controls all property interests of a debtor and his/her relationships with creditors; therefore, to the extent that any state law conflicts with a Bankruptcy Code provision, it is of no force and effect, especially when such a law would have an adverse impact on a debtor’s financial rehabilitation and fresh start by permitting creditors to obtain personal judgments in violation of the discharge injunctive order under the premise that it is in lieu of property when it is nothing more than an unsecured personal liability deficiency of its secured claim. Martin v. AVCO Fin. Servs., 157 Bankr. 268, 1993 Bankr. LEXIS 1203 (Bankr. W.D. Va. 1993).

    Court retains jurisdiction over property until parties’ rights determined. —

    The right of possession given to a detinue plaintiff under Virginia’s statutory scheme contemplates retention of the seized property within the jurisdiction of the trial court until the substantive rights of the parties are finally determined. J.I. Case Co. v. United Va. Bank, 232 Va. 210 , 349 S.E.2d 120, 3 Va. Law Rep. 934, 1986 Va. LEXIS 247 (1986).

    Sanctions not imposed for creditor’s apparent good faith but impermissible use of judgment proceedings. —

    Creditor who sought a warrant of detinue for recovery of collateral after debtor was discharged in bankruptcy appeared to have acted in the good-faith, albeit mistaken, belief that its actions in getting judgment against debtor, garnishing the debtor’s wages, and threatening criminal action for disposal of collateral were permissible; therefore, sanctions would not be imposed on the creditor. Martin v. AVCO Fin. Servs., 157 Bankr. 268, 1993 Bankr. LEXIS 1203 (Bankr. W.D. Va. 1993).

    Former corresponding provisions of this section were enacted for the benefit of the vendee and give him and not the vendor the right of election. Ashworth v. Fleenor, 178 Va. 104 , 16 S.E.2d 309, 1941 Va. LEXIS 148 (1941) (decided under prior law).

    Judgment for price or property. —

    In an action for detinue it was held that judgment should be for the unpaid purchase price or, in the alternative, the property as required by this section. Osmond-Barringer Co. v. Hey, 7 Va. L. Reg. 175 (1921) (decided under prior law).

    Debt extinguished upon surrender of property. —

    While this section does not in terms provide for the extinguishment of the debt upon the surrender of the property by the defendant, the conclusion is inescapable that such was the legislative intent, “regardless of the form of the contract or its express terms.” Lloyd v. Federal Motor Truck Co., 168 Va. 72 , 190 S.E. 257 , 1937 Va. LEXIS 206 (1937) (decided under prior law).

    Under this section defendant cannot by election merely abide the judgment. He must, in order to avail himself of the benefit conferred by the statute in this regard, elect to pay the judgment, and, if necessary, the court will require the execution of a security bond to insure payment. Lloyd v. Federal Motor Truck Co., 168 Va. 72 , 190 S.E. 257 , 1937 Va. LEXIS 206 (1937) (decided under prior law).

    § 8.01-122. Charges for keeping property.

    The legal charges, if any, for keeping any such property, while in the possession of the officer, shall be paid by the plaintiff and certified by the officer to the court who, in case such order or process be not abated and final judgment be rendered for the plaintiff, shall tax the same along with the other costs of the suit.

    History. Code 1950, § 8-594; 1977, c. 617.

    § 8.01-123. Recovery of damages sustained for property withheld during appeal.

    When a judgment for specific personal property is affirmed by an appellate court, or an injunction to such judgment is dissolved, the person who is entitled to execution of such judgment, or who would be entitled if execution had not been had, may, on motion to the court from which such execution has issued, or might issue, after fifteen days’ notice to the defendant or his personal representative, have a jury impaneled to ascertain the damages sustained by reason of the detention of such property, subsequent to such judgment, or if it was on a verdict, subsequent to such verdict; and judgment shall be rendered for the damages, if any, so ascertained.

    History. Code 1950, § 8-595; 1977, c. 617.

    Article 13. Unlawful Entry and Detainer.

    § 8.01-124. Motion for judgment in circuit court for unlawful entry or detainer.

    If any forcible or unlawful entry be made upon lands, or if, when the entry is lawful and peaceable, the tenant shall detain the possession of land after the right has expired, without the consent of him who is entitled to the possession, the party so turned out of possession, no matter what right of title he had thereto, or the party against whom such possession is unlawfully detained may file a motion for judgment in the circuit court alleging that the defendant is in possession and unlawfully withholds from the plaintiff the premises in question.

    History. Code 1950, § 8-789; 1954, c. 549; 1975, c. 235; 1977, c. 617.

    REVISERS’ NOTE

    This is a clarification of former § 8-789 rewritten also to be consistent with other sections.

    Cross references.

    For limitation of action for unlawful entry or detainer, see § 8.01-236 .

    As to venue, see § 8.01-261 , subdivision 3.

    Law Review.

    For survey of Virginia law on property for the year 1974-1975, see 61 Va. L. Rev. 1834 (1975).

    For article discussing the constitutionality of Virginia’s detinue and attachment statutes, see 12 U. Rich. L. Rev. 157 (1977).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Adverse Possession, § 55.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    In order to maintain cause of action for unlawful detainer, plaintiff must prove that defendant forcibly or unlawfully entered the land, maintained possession of the land without a right to do so, without plaintiff’s consent and withheld possession from plaintiff. Cherokee Corp. of Linden, Inc. v. Capital Skiing Corp., 222 Bankr. 281, 1998 Bankr. LEXIS 826 (Bankr. E.D. Va. 1998), aff'd, 191 F.3d 447, 1999 U.S. App. LEXIS 21942 (4th Cir. 1999).

    What statute contemplates. —

    Statute plainly contemplates two, separate scenarios: the first where a purported owner enters the property and takes it by force; and the second where one whose right to possession has expired for whatever reason remains on the property. Seitz v. Fannie Mae, 909 F. Supp. 2d 490, 2012 U.S. Dist. LEXIS 162927 (E.D. Va. 2012).

    Validity of title. —

    This was a clear example of a case in which the unlawful detainer action turned upon the validity of the title to the property. It appeared that, under Virginia law, the unlawful detainer action pending in the Circuit Court for Hanover County should be considered an action quasi in rem. Seitz v. Fannie Mae, 909 F. Supp. 2d 490, 2012 U.S. Dist. LEXIS 162927 (E.D. Va. 2012).

    Proper title is irrelevant to claim of unlawful detainer because lawful possession of property is the only issue to be determined in a claim for unlawful detainer. Cherokee Corp. of Linden, Inc. v. Capital Skiing Corp., 222 Bankr. 281, 1998 Bankr. LEXIS 826 (Bankr. E.D. Va. 1998), aff'd, 191 F.3d 447, 1999 U.S. App. LEXIS 21942 (4th Cir. 1999).

    Purchase of property at trustee’s auction. —

    See Cherokee Corp. of Linden, Inc. v. Capital Skiing Corp., 222 Bankr. 281, 1998 Bankr. LEXIS 826 (Bankr. E.D. Va. 1998), aff'd, 191 F.3d 447, 1999 U.S. App. LEXIS 21942 (4th Cir. 1999).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Statute liberally construed. —

    As the defendant can in no case be turned out of possession, unless it is apparent that he ought to surrender the possession on the demand of the plaintiff, and to retain it would be unjust, this statute, being remedial, should be given a liberal construction. Allen v. Gibson, 25 Va. (4 Rand.) 468, 1826 Va. LEXIS 66 (1826).

    Purpose of action. —

    The remedy of unlawful entry and detainer was designed to protect the actual possession, whether rightful or wrongful, and to afford summary redress and restitution. Olinger v. Shepherd, 53 Va. (12 Gratt.) 462, 1855 Va. LEXIS 35 (1855); Davis v. Mayo, 82 Va. 97 , 1886 Va. LEXIS 13 (1886); Fore v. Campbell, 82 Va. 808 , 1 S.E. 180 , 1887 Va. LEXIS 150 (1887); Mears v. Dexter, 86 Va. 828 , 11 S.E. 538 , 1890 Va. LEXIS 49 (1890); Tayloe v. Rose, 10 Va. L. Reg. 1002 (1904).

    While the purpose of this and the following sections is to prevent violence and disturbances which are likely to follow when one entitled to the lawful possession of premises undertakes to assert his rights by force, the right of action is civil in character and the result, if the plaintiff prevails, is merely to restore the possession to one from whom it has been forcibly taken, or to give possession to one from whom it is being unlawfully withheld. The judgment has only the effect of placing the parties in status quo. Shorter v. Shelton, 183 Va. 819 , 33 S.E.2d 643, 1945 Va. LEXIS 230 (1945).

    A warrant for unlawful entry and detainer is a civil action. Kincheloe v. Tracewells, 52 Va. (11 Gratt.) 587, 1854 Va. LEXIS 45 (1854).

    Unlawful detainer and ejectment distinguished. —

    In ejectment, title or right of possession is always involved. The design of unlawful detainer is to protect the actual possession whether rightful or wrongful, and to afford summary redress and restitution. Forcible entry of the owner is unlawful. Entry of stranger is unlawful, whether forcible or not. Judgment only restores the status quo, but settles nothing as to the title or right of possession. Davis v. Mayo, 82 Va. 97 , 1886 Va. LEXIS 13 (1886) (see also Olinger v. Shepherd, 53 Va. (12 Gratt.) 462 (1855)).

    Title is not involved in the action of unlawful detainer, and evidence of title is often inadmissible. Allen v. Gibson, 25 Va. (4 Rand.) 468, 1826 Va. LEXIS 66 (1826); Emerick v. Tavener, 50 Va. (9 Gratt.) 220, 1852 Va. LEXIS 37 (1852); Olinger v. Shepherd, 53 Va. (12 Gratt.) 462, 1855 Va. LEXIS 35 (1855). But see, Corbett v. Nutt, 59 Va. (18 Gratt.) 624, 1868 Va. LEXIS 28 (1868), aff'd, 77 U.S. 464, 19 L. Ed. 976, 1870 U.S. LEXIS 1140 (1871); Tayloe v. Rose, 10 Va. L. Reg. 1002 (1904).

    Use of reasonable force by owner. —

    This section does not in express terms deprive the owner of the common-law right to take possession by reasonable force of premises to which he may be entitled. The real owner of the premises, having a right of entry, will not commit a trespass by entering, though with force, unless he also commit a breach of the peace, but he may be turned out in an action of forcible entry. Shorter v. Shelton, 183 Va. 819 , 33 S.E.2d 643, 1945 Va. LEXIS 230 (1945).

    B.Elements.
    1.Possession.

    It is necessary to show that the defendant unlawfully withholds the possession. Power v. Tazewells, 66 Va. (25 Gratt.) 786, 1875 Va. LEXIS 85 (1875).

    Possession under claim of title is sufficient to sustain an action of forcible entry and detainer against one entering without title. Fore v. Campbell, 82 Va. 808 , 1 S.E. 180 , 1887 Va. LEXIS 150 (1887).

    Actual occupancy of whole tract not required. —

    The possession to which the proceeding for unlawful entry will apply, is not confined to actual occupancy or enclosure, but it is any possession which is sufficient to sustain an action of trespass. And thus actual possession of a part of a tract of land under a bona fide claim and color of title to the whole is such a possession of the whole or so much thereof as is not in the adverse possession of others, as will sustain this proceeding. Olinger v. Shepherd, 53 Va. (12 Gratt.) 462, 1855 Va. LEXIS 35 (1855).

    Color of title without possession, actual or constructive, is not sufficient to support an action of unlawful detainer. Hot Springs Lumber & Mfg. Co. v. Sterrett, 108 Va. 710 , 62 S.E. 797 , 1908 Va. LEXIS 89 (1908).

    Inference of possession at time action brought. —

    Where the proof shows that a defendant in an action of unlawful detainer had been in possession of the premises claimed in the declaration for five years before the action was brought and always refused to give up possession, the jury might and should infer that he was in possession at the time of action brought. Hence, the court must so find on a demurrer to the evidence by the defendant. Hobday v. Kane, 114 Va. 398 , 76 S.E. 902 , 1913 Va. LEXIS 97 (1913) (see also Kincheloe v. Tracewells, 52 Va. (11 Gratt.) 587 (1854)).

    2.Right of Possession.

    Not necessary in order to recover. —

    If the defendant enters upon lands of the plaintiff unlawfully, the plaintiff is entitled to recover possession without any regard to the right of possession, the actual possession giving the plaintiff the right of possession against any party not having the right of entry. Tayloe v. Rose, 10 Va. L. Reg. 1002 (1904); Olinger v. Shepherd, 53 Va. (12 Gratt.) 462, 1855 Va. LEXIS 35 (1855).

    May recover for ouster from lands of State. —

    In a proceeding for an unlawful entry or detainer, if the defendant has entered unlawfully, the plaintiff is entitled to recover without any regard to the question of his right of possession. This though the land from which he is ousted is the land of the State. Olinger v. Shepherd, 53 Va. (12 Gratt.) 462, 1855 Va. LEXIS 35 (1855).

    One with right of immediate possession may be liable. —

    A person may render himself liable to an action of forcible entry and detainer by entering on his own premises, even when he has the right of immediate possession. Tayloe v. Rose, 10 Va. L. Reg. 1002 (1904); Olinger v. Shepherd, 53 Va. (12 Gratt.) 462, 1855 Va. LEXIS 35 (1855).

    3.The Force Required.

    To sustain a complaint for forcible entry, the force must be actual, not constructive. Otherwise, the remedy given for an unlawful entry would be unnecessary. Pauley v. Chapman, 41 Va. (2 Rob.) 235, 1843 Va. LEXIS 28 (1843).

    But entry of a stranger is unlawful whether forcible or not. Davis v. Mayo, 82 Va. 97 , 1886 Va. LEXIS 13 (1886).

    If an entry on land, though peaceable, be unlawful, the owner may recover the possession from the intruder in an action of unlawful entry and detainer. Allen v. Gibson, 25 Va. (4 Rand.) 468, 1826 Va. LEXIS 66 (1826).

    C.By and Against Whom Action Lies.
    1.In General.

    One in possession under agreement to purchase cannot be ousted before his lawful possession is terminated by demand or otherwise. Williamson v. Paxton, 59 Va. (18 Gratt.) 475, 1868 Va. LEXIS 21 (1868).

    But such possession may be terminated by the acceptance of a lease. Locke v. Frasher, 79 Va. 409 , 1884 Va. LEXIS 96 (1884).

    Under this act, a mortgagee may obtain possession of the mortgaged premises after forfeiture, by the mode of proceeding therein pointed out. Allen v. Gibson, 25 Va. (4 Rand.) 468, 1826 Va. LEXIS 66 (1826).

    One tenant in common may have an action of unlawful entry and detainer for the whole land, against any party having no legal right whatever, without joining his cotenant. Allen v. Gibson, 25 Va. (4 Rand.) 468, 1826 Va. LEXIS 66 (1826).

    A remainderman may recover in an action of unlawful detainer land conveyed by the life tenant to a third party, provided he himself did not join in the grant. Such action may be brought within three years from the death of the life tenant. Hope v. Norfolk & W. Ry., 79 Va. 283 , 1884 Va. LEXIS 83 (1884).

    As may trustees. —

    It is immaterial to the support of the action of unlawful detainer whether the plaintiffs acquired any personal ownership in the property by the deeds. Allen v. Paul, 65 Va. (24 Gratt.) 332, 1874 Va. LEXIS 16 (1874) (see also Davis v. Mayo, 82 Va. 97 (1886)).

    And occupant of public lands for oyster beds. —

    A person who has obtained an assignment of certain oyster beds for the planting and sowing of oysters, has paid the tax and had the beds staked off as required, has such an exclusive interest in them, that he may maintain an action of unlawful detainer against a party who enters upon said beds and holds them against him. Power v. Tazewells, 66 Va. (25 Gratt.) 786, 1875 Va. LEXIS 85 (1875).

    And city. —

    A city which was the owner of the ground which it had not disposed of, covered by water, both as riparian proprietor and as having had long possession thereof, could maintain an action of unlawful entry and detainer against any intruder upon said water lots. Norfolk v. Cooke, 68 Va. (27 Gratt.) 430, 1876 Va. LEXIS 37 (1876).

    Vendor cannot maintain action after sale. —

    One who has sold to another a tract of land on condition and has afterwards conveyed such tract to a third party cannot, on failure to perform the condition, maintain an action of unlawful detainer for possession of that tract in his own name. Dobson v. Culpepper, 64 Va. (23 Gratt.) 352, 1873 Va. LEXIS 41 (1873).

    2.Landlord and Tenant.

    The general rule is that the possession of the tenant is the possession of the landlord, and is not adverse to him, and the tenant will not be allowed to deny his landlord’s title. Dobson v. Culpepper, 64 Va. (23 Gratt.) 352, 1873 Va. LEXIS 41 (1873); Jordan v. Katz, 89 Va. 628 , 16 S.E. 866 , 1893 Va. LEXIS 81 (1893); Reusens v. Lawson, 91 Va. 226 , 21 S.E. 347 , 1895 Va. LEXIS 21 (1895).

    The operation of this rule is not affected by the fact that the tenant is in actual possession at the time he accepts the lease. By such acceptance he as effectually recognizes the title and possession of the lessor as if he had entered and taken possession under and by virtue of the lease itself. Emerick v. Tavener, 50 Va. (9 Gratt.) 220, 1852 Va. LEXIS 37 (1852); Locke v. Frasher, 79 Va. 409 , 1884 Va. LEXIS 96 (1884); Jordan v. Katz, 89 Va. 628 , 16 S.E. 866 , 1893 Va. LEXIS 81 (1893).

    Grantee from landlord must sue tenant. —

    Where a landlord sells and conveys to a purchaser land in the possession of a tenant of the landlord, and the tenant refuses to surrender possession, the grantee is the proper person to bring unlawful detainer to recover possession of the tenant. Harrison v. Middleton, 52 Va. (11 Gratt.) 527, 1854 Va. LEXIS 42 (1854); Hobday v. Kane, 114 Va. 398 , 76 S.E. 902 , 1913 Va. LEXIS 97 (1913).

    Tenant alienating part or all of premises remains liable to his lessor in an action to recover possession of the whole premises, if possession be withheld after termination of the tenancy, whether such alienation be by sublease or conveyance in fee with warranty, and whether the action be ejectment or unlawful detainer. Emerick v. Tavener, 50 Va. (9 Gratt.) 220, 1852 Va. LEXIS 37 (1852).

    Section provides adequate remedy to tenant not put in possession. —

    A tenant sued his landlord for damages alleged to be due by reason of the failure of the landlord to put the tenant in possession of the property which was being held by a former tenant. In the absence of express contract the landlord owed no duty to put the tenant into actual possession of the property but only to put him into legal possession, because this section, providing a summary remedy for unlawful entry or detainer, gives the tenant an adequate, simple and summary remedy for such a wrong. This section specifically provides that unlawful detainer shall lie for one entitled to possession in any case in which a tenant shall detain the possession of land after his right has expired without the consent of him who is entitled to possession. Hannan v. Dusch, 154 Va. 356 , 153 S.E. 824 , 1930 Va. LEXIS 219 (1930).

    Unlawful detainer is the proper action to be brought by the lessee of a ferry and the wharfs, docks, landings and other property used for the purposes of the ferry against a third person who is in the possession of, and unlawfully withholds from him, a part of the land leased by him. The action is not to recover a mere franchise, but land leased to the plaintiff. Consolvo v. Ferries Co., 112 Va. 318 , 71 S.E. 634 , 1911 Va. LEXIS 86 (1911).

    D.Notice to Quit and Demand of Possession.

    Notice necessary if defendant did not obtain possession adversely. —

    If defendant holds land not adversely but under the plaintiff, notice to quit or demand of possession must be shown before the action of unlawful detainer can be maintained. Williamson v. Paxton, 59 Va. (18 Gratt.) 475, 1868 Va. LEXIS 21 (1868); Pettit v. Cowherd, 83 Va. 20 , 1 S.E. 392 , 1887 Va. LEXIS 33 (1887); Johnson v. Goldberg, 207 Va. 487 , 151 S.E.2d 368, 1966 Va. LEXIS 248 (1966).

    But where the defendant, in his answer, denies that he is a tenant of the plaintiff, he holds the land adversely, and is not entitled to a notice to vacate. Johnson v. Goldberg, 207 Va. 487 , 151 S.E.2d 368, 1966 Va. LEXIS 248 (1966).

    E.Defenses.

    When equitable defenses available. —

    In unlawful detainer, as well as in ejectment, under plea of not guilty, defendant can avail himself of equitable defenses, but only when “there is a writing stating the purchase and the terms thereof, signed by the vendor or his agent.” Dobson v. Culpepper, 64 Va. (23 Gratt.) 352, 1873 Va. LEXIS 41 (1873); Locke v. Frasher, 79 Va. 409 , 1884 Va. LEXIS 96 (1884).

    Requisites when defendants put in possession by plaintiffs. —

    In an action of unlawful detainer, where the defendants have been put into possession of the premises by the plaintiffs, the defendants cannot set up a plea of adverse possession unless they prove that they disclaimed to hold of the plaintiffs or bona fide abandoned possession of the premises or asserted and claimed an adverse right to the premises, with notice thereof to the plaintiffs three years before the institution of the action. Allen v. Paul, 65 Va. (24 Gratt.) 332, 1874 Va. LEXIS 16 (1874) (see also Buchanan v. Norfolk S.R.R., 150 Va. 17 , 142 S.E. 405 (1928)).

    Lessee estopped to deny lessor’s title. —

    The lease being for a certain quantity of land, situate as therein described, and lessee having executed it under his hand and seal, and thereby recognized the description and boundaries therein specified, and that he then held the same in possession, and the warrant being for the precise tenement described in the lease, neither lessee, nor one claiming under him, can be entertained to deny that the tenement had its boundaries, or that they were within them. Emerick v. Tavener, 50 Va. (9 Gratt.) 220, 1852 Va. LEXIS 37 (1852).

    Except when obtained by fraud. —

    A person, possessing and claiming title to land, supposing another to have better title, took a lease from him. In an action by the lessor to recover possession, the tenant may set up such mistake and show he had good title to the land, provided such mistake was induced by the lessor through misrepresentations amounting to fraud. Alderson v. Miller, 56 Va. (15 Gratt.) 279, 1859 Va. LEXIS 15 (1859); Locke v. Frasher, 79 Va. 409 , 1884 Va. LEXIS 96 (1884).

    Compliance with contract of sale good defense. —

    When a conveyance is not made to purchaser who fails to fulfill his contract, and the vendor conveys to another and brings unlawful detainer against the original purchaser, compliance with the contract is a good defense. Dobson v. Culpepper, 64 Va. (23 Gratt.) 352, 1873 Va. LEXIS 41 (1873).

    Plaintiff’s failure to pay required rent to State no bar to recovery. —

    In unlawful entry and detainer to recover oyster beds assigned to plaintiff by the county oyster inspector, his failure to pay rent to the State does not affect his right to recover from defendants, unlawfully in possession. Mears v. Dexter, 86 Va. 828 , 11 S.E. 538 , 1890 Va. LEXIS 49 (1890).

    F.Pleading and Practice.

    A wife is not a necessary party to an action of unlawful entry and detainer against her husband, trustee for her, in possession of land, which he contracted to purchase for her. Williamson v. Paxton, 59 Va. (18 Gratt.) 475, 1868 Va. LEXIS 21 (1868).

    Statement may supplement warrant. —

    To entitle the plaintiff to recover upon a warrant of unlawful detainer, he must prove that the defendant withheld the possession at the date of the warrant. But if the warrant does not state the withholding of the possession by the defendant, that may be aided by the complaint which states the fact. Kincheloe v. Tracewells, 52 Va. (11 Gratt.) 587, 1854 Va. LEXIS 45 (1854).

    Description of premises. —

    In a writ of unlawful detainer, under the statute, the omission to state in the complaint the estimated quantity of the land in dispute, is not fatal, if the complaint contains a reasonably certain description. Allen v. Gibson, 25 Va. (4 Rand.) 468, 1826 Va. LEXIS 66 (1826).

    Evidence of title inadmissible. —

    Title is not involved in an action of forcible entry and detainer, and therefore, as a general rule, evidence of title is inadmissible. Emerick v. Tavener, 50 Va. (9 Gratt.) 220, 1852 Va. LEXIS 37 (1852).

    But deed may be offered to show extent of possession. —

    A deed, though it may be invalid to pass the title it purports to convey, may be admissible evidence as a link in plaintiff’s chain of title to show the bounds of the land claimed by him, and the extent of his possession. Harrison v. Middleton, 52 Va. (11 Gratt.) 527, 1854 Va. LEXIS 42 (1854); Olinger v. Shepherd, 53 Va. (12 Gratt.) 462, 1855 Va. LEXIS 35 (1855).

    Records are admissible to show right of possession. —

    In unlawful detainer by a corporation against its ex-treasurer for possession of a house and lot allowed him as a residence while in office as part of his emoluments, the records of the corporation are admissible as evidence to show the arrangements made between the parties. Frazier v. VMI, 81 Va. 59 , 1885 Va. LEXIS 9 (1885).

    And oral lease for more than year is admissible to show how defendant obtained possession. —

    Upon the trial of a writ of unlawful detainer, defendant sets up title in himself. Plaintiff may prove that the defendant entered on the premises under a parol lease from himself, though the lease proved was to continue more than one year. Adams v. Martin, 49 Va. (8 Gratt.) 107, 1851 Va. LEXIS 48 (1851).

    Recordation of power of attorney not necessary for admission in evidence. —

    It is unnecessary to record a power of attorney under seal appointing an agent to take charge of real estate and to bring suit for its protection in order for it to be admitted in evidence in an action of unlawful detainer to recover possession of the land. Hobday v. Kane, 114 Va. 398 , 76 S.E. 902 , 1913 Va. LEXIS 97 (1913).

    Burden on plaintiff to show that possession not withheld for three years. —

    An action of unlawful detainer is purely a statutory action. The burden of proof is upon the plaintiff to show by a preponderance of the evidence that possession has not been withheld over three years, but there is no requirement in the statute that the summons should allege that possession has not been withheld over three years, and the practice in Virginia uniformly pursued for a great length of time has been to the contrary and ought to be regarded as showing what the law is on the subject. Allen v. Paul, 65 Va. (24 Gratt.) 332, 1874 Va. LEXIS 16 (1874); Fore v. Campbell, 82 Va. 808 , 1 S.E. 180 , 1887 Va. LEXIS 150 (1887); Pettit v. Cowherd, 83 Va. 20 , 1 S.E. 392 , 1887 Va. LEXIS 33 (1887); Daily v. Rucker, 151 Va. 72 , 144 S.E. 466 , 1928 Va. LEXIS 211 (1928) (decided before 1978 amendment to § 8.01-236 , which now provides period of limitations for this action.).

    CIRCUIT COURT OPINIONS

    Foreclosure buyer awarded possession. —

    Buyer was awarded possession of property in an unlawful detainer action because, inter alia, the deed of foreclosure was prima facie evidence that the buyer was entitled to possession and the occupant admitted that she maintained possession over the property; the buyer was not required to give any notice to vacate. Fannie Mae v. Harbin, 85 Va. Cir. 69, 2012 Va. Cir. LEXIS 99 (Virginia Beach Mar. 20, 2012).

    Purchaser of a property at a foreclosure sale was entitled to possession of the property in an unlawful detainer action because the deed of trust signed by the occupants late parent was a valid recorded deed, the purchaser bought the property at a foreclosure sale and became the deed holder, the occupants timely received notices to vacate the property, at least one of the occupants had occupied the property from the date of the foreclosure sale, and the occupants’ right of occupancy was adverse to the purchaser’s interest in the property. Cit Bank, N.A. v. Lucion, 98 Va. Cir. 334, 2018 Va. Cir. LEXIS 55 (Roanoke Apr. 17, 2018).

    Virginia Housing Development Authority entitled to possession. —

    Virginia Housing Development Authority (VHDA) was entitled to prevail on its unlawful detainer claim because VHDA owned the subject property as a result of a foreclosure sale and the substitute trustee’s execution of the substitute trustee deed, VHDA subsequently provided the mortgagor with appropriate notice to vacate the premises, and VHDA was entitled to possession of the property. The mortgagor owed VHDA the fair rental value of the property from the date of the foreclosure sale until the date of the circuit court’s judgment. Ononuju v. Va. Hous. Dev. Auth., 107 Va. Cir. 9, 2020 Va. Cir. LEXIS 665 (Norfolk Oct. 19, 2020).

    Virginia Housing Development Authority (VHDA) successfully demonstrated that it was entitled to prevail on its unlawful detainer claim because it owned the property as a result of the foreclosure sale and the substitute trustee’s execution of the substitute trustee deed, and the mortgagor did not present credible evidence to challenge VHDA’s title; VHDA subsequently provided the mortgagor with appropriate notice to vacate the premises and was entitled to possession of the property. Ononuju v. Va. Hous. Dev. Auth., 2021 Va. Cir. LEXIS 48 (Norfolk Mar. 23, 2021).

    § 8.01-125. When summons returnable to circuit court; jury.

    When the action is commenced in the circuit court, the summons is returnable thereto and, upon application of either party trial by jury shall be had.

    History. Code 1950, § 8-792; 1954, c. 333; 1970, c. 272; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-792 has been altered so that it applies only to actions commenced in a circuit court. Also, actions of unlawful entry and detainer no longer will have precedence on the civil docket. See also Revisers’ note to § 8.01-331 .

    Michie’s Jurisprudence.

    For related discussion, see 8B M.J. Forcible Entry and Detainer, §§ 15, 16, 19, 26.

    § 8.01-126. Summons for unlawful detainer issued by magistrate or clerk or judge of a general district court.

    1. For the purposes of this section, “termination notice” means a notice given under § 55.1-1245 or other notice of termination of tenancy given by the landlord to the tenant of a dwelling unit, or any notice of termination given by a landlord to a tenant of a nonresidential premises.
    2. In any case when possession of any house, land or tenement is unlawfully detained by the person in possession thereof, the landlord, his agent, attorney, or other person, entitled to the possession may present to a magistrate or a clerk or judge of a general district court a statement under oath of the facts which authorize the removal of the tenant or other person in possession, describing such premises; and thereupon such magistrate, clerk or judge shall issue his summons against the person or persons named in such affidavit. The process issued upon any such summons issued by a magistrate, clerk or judge may be served as provided in § 8.01-293 , 8.01-296 , or 8.01-299 . When issued by a magistrate it may be returned to and the case heard and determined by the judge of a general district court. If the summons for unlawful detainer is filed to terminate a tenancy pursuant to the Virginia Residential Landlord and Tenant Act (§ 55.1-1200 et seq.), the initial hearing on such summons shall occur as soon as practicable, but not more than 21 days from the date of filing. If the case cannot be heard within 21 days from the date of filing, the initial hearing shall be held as soon as practicable, but in no event later than 30 days after the date of the filing. If the plaintiff requests that the initial hearing be set on a date later than 21 days from the date of filing, the initial hearing shall be set on a date the plaintiff is available that is also available for the court. Such summons shall be served at least 10 days before the return day thereof.
    3. Notwithstanding any other rule of court or provision of law to the contrary, the plaintiff in an unlawful detainer case may submit into evidence a photocopy of a properly executed paper document or paper printout of an electronically stored document including a copy of the original lease or other documents, provided that the plaintiff provides an affidavit or sworn testimony that the copy of such document is a true and accurate copy of the original lease. An attorney or agent of the landlord or managing agent may present such affidavit into evidence.
      1. Notwithstanding any other rule of court or provision of law to the contrary, when the defendant does not make an appearance in court, the plaintiff or the plaintiff’s attorney or agent may submit into evidence by an affidavit or sworn testimony a statement of the amount of outstanding rent, late charges, attorney fees, and any other charges or damages due as of the date of the hearing. The plaintiff or the plaintiff’s attorney or agent shall advise the court of any payments by the defendant that result in a variance reducing the amount due the plaintiff as of the day of the hearing. D. 1. Notwithstanding any other rule of court or provision of law to the contrary, when the defendant does not make an appearance in court, the plaintiff or the plaintiff’s attorney or agent may submit into evidence by an affidavit or sworn testimony a statement of the amount of outstanding rent, late charges, attorney fees, and any other charges or damages due as of the date of the hearing. The plaintiff or the plaintiff’s attorney or agent shall advise the court of any payments by the defendant that result in a variance reducing the amount due the plaintiff as of the day of the hearing.
        1. If the unlawful detainer summons served upon the defendant requests judgment for all amounts due as of the date of the hearing, the court shall permit amendment of the amount requested on the summons for unlawful detainer filed in court in accordance with the evidence and in accordance with the amounts contracted for in the rental agreement and shall enter a judgment for such amount due as of the date of the hearing in addition to entering an order of possession for the premises. Notwithstanding any rule of court or provision of law to the contrary, no order of possession shall be entered unless the plaintiff or plaintiff’s attorney or agent has presented a copy of a proper termination notice that the court admits into evidence.
        2. Notwithstanding any rule of court or provision of law to the contrary, a plaintiff may amend the amount alleged to be due and owing in an unlawful detainer to request all amounts due and owing as of the date of the hearing. If additional amounts become due and owing prior to the final disposition of a pending unlawful detainer, the plaintiff may also amend the amount alleged to be due and owing to include such additional amounts. If the plaintiff requests to amend the amount alleged to be due and owing in an unlawful detainer, the judge shall grant such amendment. Upon amendment of the unlawful detainer, such plaintiff shall not subsequently file an additional summons for unlawful detainer against the defendant for such additional amounts if such additional amounts could have been included in such amendment. If another unlawful detainer is filed, the court shall dismiss the subsequent unlawful detainer. Nothing herein shall be construed to preclude a plaintiff from filing an unlawful detainer for a non-rent violation during the pendency of an unlawful detainer for nonpayment of rent.

    3. In determining the amount due the plaintiff as of the date of the hearing, if the rental agreement or lease provides that rent is due and payable on the first of the month in advance for the entire month, at the request of the plaintiff or the plaintiff’s attorney or agent, the amount due as of the date of the hearing shall include the rent due for the entire month in which the hearing is held, and rent shall not be prorated as of the actual court date. Otherwise, the rent shall be prorated as of the date of the hearing. However, nothing herein shall be construed to permit a landlord to collect rent in excess of the amount stated in such rental agreement or lease. If a money judgment has been granted for the amount due for the month of the hearing pursuant to this section and the landlord re-rents such dwelling unit and receives rent from a new tenant prior to the end of such month, the landlord is required to reflect the applicable portion of the judgment as satisfied pursuant to § 16.1-94.01 .

    4. If, on the date of a foreclosure sale of a single-family residential dwelling unit, the former owner remains in possession of such dwelling unit, such former owner becomes a tenant at sufferance. Such tenancy may be terminated by a written termination notice from the successor owner given to such tenant at least three days prior to the effective date of termination. Upon the expiration of the three-day period, the successor owner may file an unlawful detainer under this section. Such tenant shall be responsible for payment of fair market rental from the date of such foreclosure until the date the tenant vacates the dwelling unit, as well as damages, and for payment of reasonable attorney fees and court costs.

    History. Code 1950, § 8-791; 1954, c. 333; 1966, c. 436; 1968, c. 639; 1972, c. 397; 1975, c. 235; 1977, c. 617; 1978, c. 344; 1980, c. 502; 2000, c. 1055; 2008, cc. 551, 691; 2012, c. 788; 2013, c. 63; 2014, c. 168; 2015, c. 547; 2017, c. 481; 2018, c. 255; 2019, cc. 130, 132.

    Editor’s note.

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted “( § 55.1-1200 et seq.)” for “( § 55-248.2 et seq.)” and “55.1-1245” for “55-248.31.”

    The 2000 amendments.

    The 2000 amendment by c. 1055 added the fourth, fifth and sixth sentences and substituted “ten” for “five” in the last sentence.

    The 2008 amendments.

    The 2008 amendments by cc. 551 and 691 are identical, and substituted “magistrate or a clerk or judge” for “magistrate, clerk or judge,” deleted “of a general district court” preceding “shall issue his summons” in the first sentence; and made minor stylistic changes.

    The 2012 amendments.

    The 2012 amendment by c. 788 designated the existing provisions of the section as subsection A and therein made stylistic changes; and added subsection B.

    The 2013 amendments.

    The 2013 amendment by c. 63 added the second sentence in subsection B, and added subsection C.

    The 2014 amendments.

    The 2014 amendment by c. 168 in subsection C inserted “(i)” and “and (ii) the unlawful detainer summons served upon the defendant requests judgment for all amounts due as of the date of the hearing,” and substituted “shall permit amendment of the amount requested on the summons for unlawful detainer filed in court in accordance with the affidavit and shall enter a judgment for such amount due as of the date of the hearing” for “shall enter a judgment for such amount.”

    The 2015 amendments.

    The 2015 amendment by c. 547 rewrote subsection C, which read “Notwithstanding any other rule of court or provision of law to the contrary, when the defendant does not make an appearance in court, the plaintiff or the plaintiff’s attorney or agent may include in the affidavit entered into evidence pursuant to subsection B a statement of the amount of outstanding rent, late charges, attorney fees, and any other charges or damages due as of the date of the hearing. Upon request of the plaintiff or the plaintiff’s attorney or agent, if the court determines that (i) the affidavit accurately sets forth the amount due the plaintiff and (ii) the unlawful detainer summons served upon the defendant requests judgment for all amounts due as of the date of the hearing, the court shall permit amendment of the amount requested on the summons for unlawful detainer filed in court in accordance with the affidavit and shall enter a judgment for such amount due as of the date of the hearing in addition to entering an order of possession for the premises.”

    The 2017 amendments.

    The 2017 amendment by c. 481 inserted “and in accordance with the amounts contracted for in the rental agreement” in subdivision C 2.

    The 2018 amendments.

    The 2018 amendment by c. 255 added subdivision C 4.

    The 2019 amendments.

    The 2019 amendments by cc. 130 and 132 are identical, and added subsection A and redesignated the remaining subsections accordingly; in subsection B, inserted “but in no event later than 30 days after the date of the filing”; in subdivision D 2, inserted the “a.” designation and added subdivision D 2 b.; added the last sentence in subdivision D 2 a.

    Law Review.

    For survey of Virginia law on property for the year 1974-1975, see 61 Va. L. Rev. 1834 (1975).

    For annual survey article, “Real Estate Law,” see 41 U. Rich. L. Rev. 257 (2006).

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    Michie’s Jurisprudence.

    For related discussion, see 8B M.J. Forcible Entry and Detainer, §§ 3, 15, 16, 18, 19, 20, 26.

    CASE NOTES

    Where federal housing laws and regulations established a reviewing process outside the courts and the tenant did not receive a hearing meeting the standards of that process, an unlawful detainer action was not an adequate remedy at law to protect the statutory and regulatory procedures afforded the tenant. Cooper v. Tazewell Square Apts., Ltd., 577 F. Supp. 1483, 1984 U.S. Dist. LEXIS 20497 (W.D. Va. 1984).

    Where writ of possession unnecessary. —

    Defendant had no right to be at the property he had leased, and his act of entering the property supported his burglary conviction, where the landlord had been granted an unlawful detainer judgment against defendant, and, pursuant to that judgment, the landlord had entered the house, taken possession of the house, and changed its locks before defendant re-entered the property; issuance of a writ for possession was unnecessary to terminate defendant’s right to be at the property. Lassiter v. Commonwealth, 46 Va. App. 604, 620 S.E.2d 563, 2005 Va. App. LEXIS 409 (2005).

    Protection for tenants in federally assisted housing. —

    The substantive right not to be arbitrarily evicted from federally assisted housing on the mere expiration of a lease in turn requires that a tenant be afforded the following protections: (1) timely notice specifying the reasons for the eviction; (2) an opportunity to confront and cross-examine adverse witnesses and present his own evidence; (3) the right to retain an attorney; and (4) the right to an impartial decision based solely on the evidence adduced at the hearing. Anderson v. Denny, 365 F. Supp. 1254, 1973 U.S. Dist. LEXIS 11806 (W.D. Va. 1973) (decided under prior law).

    Tenants residing in federally assisted housing are entitled to a declaratory judgment that they cannot be evicted from their tenancies until they receive notice alleging good cause, and such allegations are to be proved in a hearing in the state courts, under the procedural and substantive law of Virginia. Anderson v. Denny, 365 F. Supp. 1254, 1973 U.S. Dist. LEXIS 11806 (W.D. Va. 1973) (decided under prior law).

    Subject matter jurisdiction. —

    Circuit court erred in granting a foreclosure purchaser’s motion for summary judgment and awarding it possession of the borrowers’ property in the purchaser’s unlawful detainer action because the circuit court had no more subject matter jurisdiction than the general district court and the general district court lacked subject matter jurisdiction over the case where the borrowers’ allegations raised a bona fide question of title that, if proved, could set aside the foreclosure. Parrish v. Fannie Mae, 292 Va. 44 , 787 S.E.2d 116, 2016 Va. LEXIS 76 (2016).

    CIRCUIT COURT OPINIONS

    Will did not require that decedent’s brother and son jointly occupy a home. —

    Brother of a decedent was granted sole possession of a house pursuant to an action for unlawful detainer under § 8.01-126 ; a will granted the brother a life estate, and there was no language in the will indicating an intention for the brother and the decedent’s son to jointly occupy the house. Jenkins v. Bynum, 61 Va. Cir. 314, 2003 Va. Cir. LEXIS 144 (Norfolk Mar. 11, 2003).

    No oral contract for occupancy found. —

    Trial court granted a trust the possession of a residence because the court found that there was not an oral contract between the trust and the occupant of the residence that permitted the occupant to reside therein absent a written lease. The court accepted the testimony of the attorney who drafted the trust that the grantor made no mention of an oral agreement that would have allowed the occupier to remain in the property, and the trust document did not mention allowing the occupier to remain in the property during the occupier’s lifetime. Stanley v. Stanley, 102 Va. Cir. 366, 2019 Va. Cir. LEXIS 353 (Orange County Aug. 16, 2019).

    Right to terminate lease agreement. —

    Portsmouth Redevelopment and Housing Authority had the authority to terminate a lease agreement with a commercial tenant and the right to cancel the collateral orally amended development agreement; therefore, it was entitled to possession of the property unless it decided to continue its development and/or lease arrangement with the tenant. Judgment for possession was granted to the authority. Portsmouth Redevelopment & Hous. Auth. v. Ison, 66 Va. Cir. 336, 2005 Va. Cir. LEXIS 39 (Portsmouth Jan. 18, 2005).

    Foreclosure buyer awarded possession. —

    Buyer was awarded possession of property in an unlawful detainer action because, inter alia, the deed of foreclosure was prima facie evidence that the buyer was entitled to possession and the occupant admitted that she maintained possession over the property; the buyer was not required to give any notice to vacate. Fannie Mae v. Harbin, 85 Va. Cir. 69, 2012 Va. Cir. LEXIS 99 (Virginia Beach Mar. 20, 2012).

    Virginia Housing Development Authority entitled to possession. —

    Virginia Housing Development Authority (VHDA) successfully demonstrated that it was entitled to prevail on its unlawful detainer claim because it owned the property as a result of the foreclosure sale and the substitute trustee’s execution of the substitute trustee deed, and the mortgagor did not present credible evidence to challenge VHDA’s title; VHDA subsequently provided the mortgagor with appropriate notice to vacate the premises and was entitled to possession of the property. Ononuju v. Va. Hous. Dev. Auth., 2021 Va. Cir. LEXIS 48 (Norfolk Mar. 23, 2021).

    Virginia Housing Development Authority (VHDA) was entitled to prevail on its unlawful detainer claim because VHDA owned the subject property as a result of a foreclosure sale and the substitute trustee’s execution of the substitute trustee deed, VHDA subsequently provided the mortgagor with appropriate notice to vacate the premises, and VHDA was entitled to possession of the property. The mortgagor owed VHDA the fair rental value of the property from the date of the foreclosure sale until the date of the circuit court’s judgment. Ononuju v. Va. Hous. Dev. Auth., 107 Va. Cir. 9, 2020 Va. Cir. LEXIS 665 (Norfolk Oct. 19, 2020).

    §§ 8.01-127, 8.01-127.1. Repealed by Acts 2007, c. 869, cl. 2.

    § 8.01-128. Verdict and judgment; damages.

    1. If it appears that the plaintiff was forcibly or unlawfully turned out of possession, or that it was unlawfully detained from him, the verdict or judgment shall be for the plaintiff for the premises, or such part thereof as may be found to have been so held or detained. The verdict or judgment shall also be for such damages as the plaintiff may prove to have been sustained by him by reason of such forcible or unlawful entry, or unlawful detention, of such premises, and such rent as he may prove to have been owing to him.
    2. The plaintiff may, alternatively, receive a final, appealable judgment for possession of the property unlawfully entered or unlawfully detained and be issued an order of possession at the initial hearing on a summons for unlawful detainer, upon evidence presented by the plaintiff to the court. At the initial hearing, upon request of the plaintiff, the court shall bifurcate the unlawful detainer case and set a continuance date no later than 120 days from the date of the initial hearing to determine final rent and damages. On such continuance date, the court shall permit amendment of the amount requested on the summons for unlawful detainer filed in court in accordance with the (i) notice of hearing to establish final rent and damages mailed to the last known address of the defendant and filed with the court at least 15 days prior to the continuance date as provided herein, (ii) evidence presented to the court, and (iii) amounts contracted for in the rental agreement. Nothing in this subsection shall preclude a defendant who appears in court at the initial court date from contesting an unlawful detainer action as otherwise provided by law.If under this section an appeal is taken as to possession, the entire case shall be considered appealed. The plaintiff shall, in the instance of a continuance taken under this section, mail to the defendant at the defendant’s last known address at least 15 days prior to the continuance date a notice advising (a) of the continuance date, (b) of the amounts of final rent and damages, and (c) that the plaintiff is seeking judgment for additional sums. A copy of such notice shall be filed with the court.
    3. No verdict or judgment rendered under this section shall bar any separate concurrent or future action for any such damages or rent as may not be so claimed.

    History. Code 1950, § 8-793; 1954, c. 609; 1977, c. 617; 2005, c. 779; 2010, c. 550; 2011, c. 76; 2016, c. 281; 2017, c. 481; 2019, cc. 180, 700.

    REVISERS’ NOTE

    The restriction in former § 8-793 as to rent being claimed only up to the time of the institution of the action has been removed. Other unnecessary language has been deleted; but no change in substance is intended.

    Cross references.

    As to court-ordered payment plan under the Eviction Diversion Pilot Program, see § 55.1-1262 .

    The 2005 amendments.

    The 2005 amendment by c. 779 redesignated the former section as subsections A and C; substituted “appears” for “appear” in subsection A; inserted subsection B; and in subsection C, deleted “such” preceding “verdict or judgment” and inserted “rendered under this section.”

    The 2010 amendments.

    The 2010 amendment by c. 550 inserted the last two sentences in the first paragraph of subsection B.

    The 2011 amendments.

    The 2011 amendment by c. 76 deleted “provided such damages and rent claimed shall not exceed the jurisdictional amount of the court in which the action is tried” from the end of the first paragraph.

    The 2016 amendments.

    The 2016 amendment by c. 281 substituted “120 days” for “90 days” in subsection B.

    The 2017 amendments.

    The 2017 amendment by c. 481, in subsection B, rewrote the first paragraph, which formerly read: “The plaintiff may, alternatively, receive a final, appealable judgment for possession of the property unlawfully entered or unlawfully detained and be issued a writ of possession, and continue the case for up to 120 days to establish final rent and damages. If the plaintiff elects to proceed under this section, the judge shall hear evidence as to the issue of possession on the initial court date and shall hear evidence on the final rent and damages at the hearing set on the continuance date, unless the plaintiff requests otherwise or the judge rules otherwise. Nothing in this section shall preclude a defendant who appears in court at the initial court date from contesting an unlawful detainer action as otherwise provided by law” and redesignated clauses (i) through (iii) as clauses (a) through (c) in the second paragraph.

    The 2019 amendments.

    The 2019 amendments by cc. 180 and 700 are identical, and substituted “an order of possession” for “a writ of possession” in subsection B.

    Michie’s Jurisprudence.

    For related discussion, see 8B M.J. Forcible Entry and Detainer, §§ 2, 3, 16, 26, 27.

    CASE NOTES

    Lessor may evict lessee without losing right to recover deficiency later. —

    In creating an exemption to the rules of claim-splitting, this section provides the lessor with an opportunity to evict the lessee without losing its right to recover any later deficiency in rent after making an effort to minimize the lessee’s damages by renting to another tenant. Virginia Dynamics Co. v. Payne, 244 Va. 314 , 421 S.E.2d 421, 9 Va. Law Rep. 276, 1992 Va. LEXIS 86 (1992).

    Right to file subsequent action after eviction must be expressly waived. —

    The lessor’s statutorily created right to file a subsequent action for rent would have to be expressly waived in order for such a right to be considered contracted away. Virginia Dynamics Co. v. Payne, 244 Va. 314 , 421 S.E.2d 421, 9 Va. Law Rep. 276, 1992 Va. LEXIS 86 (1992).

    The judgment restores only the status quo and settles nothing as to the title or right of possession. Davis v. Mayo, 82 Va. 97 , 1886 Va. LEXIS 13 (1886) (decided under prior law).

    No independent action for damages for forcible dispossession. —

    This article does not undertake to give a party forcibly dispossessed any right to institute a separate and independent action for damages therefor. Shorter v. Shelton, 183 Va. 819 , 33 S.E.2d 643, 1945 Va. LEXIS 230 (1945) (decided under prior law).

    Removal of encroachment. —

    Where the evidence showed that removal of an encroachment was essential to appellants’ full enjoyment of their land, the trial court erred in refusing to issue the injunction sought. Appellants had no adequate remedy at law by way of ejectment or unlawful detainer, for by neither action could they accomplish their object to obtain quiet possession of their land. Benoit v. Baxter, 196 Va. 360 , 83 S.E.2d 442, 1954 Va. LEXIS 228 (1954) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Foreclosure buyer awarded possession. —

    Buyer was awarded possession of property in an unlawful detainer action because, inter alia, the deed of foreclosure was prima facie evidence that the buyer was entitled to possession and the occupant admitted that she maintained possession over the property; the buyer was not required to give any notice to vacate. Fannie Mae v. Harbin, 85 Va. Cir. 69, 2012 Va. Cir. LEXIS 99 (Virginia Beach Mar. 20, 2012).

    Virginia Housing Development Authority entitled to possession. —

    Virginia Housing Development Authority (VHDA) successfully demonstrated that it was entitled to prevail on its unlawful detainer claim because it owned the property as a result of the foreclosure sale and the substitute trustee’s execution of the substitute trustee deed; VHDA subsequently provided the mortgagor with appropriate notice to vacate the premises and was entitled to possession of the property, and as the prevailing party, it was entitled to damages for the unlawful detention. Ononuju v. Va. Hous. Dev. Auth., 2021 Va. Cir. LEXIS 48 (Norfolk Mar. 23, 2021).

    Virginia Housing Development Authority (VHDA) was entitled to prevail on its unlawful detainer claim because VHDA owned the subject property as a result of a foreclosure sale and the substitute trustee’s execution of the substitute trustee deed, VHDA subsequently provided the mortgagor with appropriate notice to vacate the premises, and VHDA was entitled to possession of the property. The mortgagor owed VHDA the fair rental value of the property from the date of the foreclosure sale until the date of the circuit court’s judgment. Ononuju v. Va. Hous. Dev. Auth., 107 Va. Cir. 9, 2020 Va. Cir. LEXIS 665 (Norfolk Oct. 19, 2020).

    § 8.01-129. Appeal from judgment of general district court.

    1. An appeal shall lie from the judgment of a general district court, in any proceeding under this article, to the circuit court in the same manner and with like effect and upon like security as appeals taken under the provisions of § 16.1-106 et seq. except as specifically provided in this section. The appeal shall be taken within 10 days and the security approved by the court from which the appeal is taken. Notwithstanding the provisions of § 16.1-106 et seq., the bond shall be posted and the writ tax paid within 10 days of the date of the judgment.
    2. In any unlawful detainer case filed under § 8.01-126 , if a judge grants the plaintiff a judgment for possession of the premises, upon request of the plaintiff, the judge shall further order that the writ of eviction issue immediately upon entry of judgment for possession. In such case, the clerk shall deliver the writ of eviction to the sheriff, who shall then, at least 72 hours prior to execution of such writ, serve notice of intent to execute the writ, including the date and time of eviction, as provided in § 8.01-470 . In no case, however, shall the sheriff evict the defendant from the dwelling unit prior to the expiration of the defendant’s 10-day appeal period. If the defendant perfects an appeal, the sheriff shall return the writ to the clerk who issued it.When the appeal is taken by the defendant, he shall be required to give security also for all rent which has accrued and may accrue upon the premises, but for not more than one year’s rent, and also for all damages that have accrued or may accrue from the unlawful use and occupation of the premises for a period not exceeding three months. Trial by jury shall be had upon application of any party.

    History. Code 1950, § 8-794; 1950, p. 68; 1977, c. 617; 1984, c. 565; 1998, c. 750; 2004, c. 343; 2008, c. 489; 2017, c. 481; 2018, c. 145; 2019, cc. 180, 700.

    REVISERS’ NOTE

    The sentence in former § 8-794 stating what type of security may be taken has been deleted. The type and adequacy of the security is left up to the court.

    Cross references.

    As to appeals generally, see § 8.01-669 et seq.

    The 2004 amendments.

    The 2004 amendment by c. 343 throughout the section, substituted “10” for “ten,” and in the fourth sentence, inserted clause (i) and the clause (ii) designation.

    The 2008 amendments.

    The 2008 amendment by c. 489, in the fourth sentence, deleted “or” from the end of clause (i), inserted “or” at the end of clause (ii), and inserted clause (iii).

    The 2017 amendments.

    The 2017 amendment by c. 481 added the subsection designations; in subsection B, in the first sentence, inserted the clause (i) designation, redesignated former clauses (i) through (iii) as clauses (ii) through (iv), inserted the second sentence; and made minor stylistic changes.

    The 2018 amendments.

    The 2018 amendment by c. 145 rewrote the first paragraph of subsection B, which formerly read “Unless otherwise specifically provided in the court’s order, no writ of execution shall issue on a judgment for possession until the expiration of this 10-day period, except in cases of judgment (i) of default; (ii) wherein the case arises out of a trustee’s deed following foreclosure; (iii) for the nonpayment of rent where the writ of execution shall issue immediately upon entry of judgment for possession, if requested by the plaintiff; or (iv) for immediate nonremediable terminations where the writ of execution shall issue immediately upon entry of judgment for possession, if requested by the plaintiff. In cases where the court’s order permits immediate processing of a writ of execution in order to schedule an eviction date, in no case shall such eviction be executed (a) until expiration of the tenant’s 10-day appeal period or (b) if the tenant perfects an appeal pursuant to this section.”

    The 2019 amendments.

    The 2019 amendments by cc. 180 and 700 are identical, and inserted “of eviction” following “writ” twice in subsection B.

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, § 357.

    CASE NOTES

    This section did not permit an appeal from denial of motion for new trial. —

    This section was inapplicable where tenant in unlawful detainer action did not appeal district court’s judgment awarding possession to landlord but appealed only from the court’s denial of motion for a new trial. Ragan v. Woodcroft Village Apts., 255 Va. 322 , 497 S.E.2d 740, 1998 Va. LEXIS 34 (1998).

    Relationship to pre-appeal bankruptcy filing. —

    Bankruptcy court properly found that an escrowed fund awarded to an attorney lien creditor by a state court was property of debtors’ bankruptcy estate under 11 U.S.C.S. § 541(a)(1) because: (1) the debtors had an equitable or legal interest in the fund on the date they commenced their bankruptcy case as the debtors filed their bankruptcy petition four days before their time to appeal the state court judgment would have expired; and (2) the creditor’s statutory attorney’s fee lien on the fund, pursuant to § 54.1-3932, was not self-executing and did not automatically extinguish the debtors’ legal or equitable interest in the fund as of the date they filed their bankruptcy petition. Todd v. Hart, No. 5:06-CV-00029, 2006 U.S. Dist. LEXIS 43340 (W.D. Va. June 27, 2006).

    CIRCUIT COURT OPINIONS

    No jurisdiction for appeal. —

    Because the tenant’s retaliation claim against the landlord under Virginia’s Manufactured Home Lot Rental Act, § 55.1-1300 , was part of the landlord’s underlying unlawful detainer action and that action was not appealed, that claim was not properly before the circuit court. Even if the tenant had noted an appeal of the tenant’s retaliation claim, the decision on that claim was not a final order or judgment that was appealable as the tenant only appealed the tenant’s negligence, negligence per se, and breach of contract claims. Cadd v. Bowman Assocs., LLC, 105 Va. Cir. 144, 2020 Va. Cir. LEXIS 55 (Roanoke County Apr. 20, 2020).

    § 8.01-130. Judgment not to bar action of trespass, ejectment, or unlawful detainer.

    No judgment in an action brought under the provisions of this article shall bar any action of trespass, ejectment, or unlawful detainer between the same parties, nor shall any such judgment or verdict be conclusive, in any such future action, of the facts therein found.

    History. Code 1950, § 8-795; 1977, c. 617; 2018, c. 255.

    The 2018 amendments.

    The 2018 amendment by c. 255 inserted “or unlawful detainer” and made a related change.

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Adverse Possession, § 55.

    CASE NOTES

    Judgment settles nothing as to title or right of possession. —

    In an action of forcible entry and detainer the judgment has only the effect of placing the parties in status quo. It settles nothing even between them in regard to the title or right of possession. It is no bar to an action of trespass or ejectment between the same parties. Olinger v. Shepherd, 53 Va. (12 Gratt.) 462, 1855 Va. LEXIS 35 (1855); Davis v. Mayo, 82 Va. 97 , 1886 Va. LEXIS 13 (1886) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Failure to follow court rules. —

    Challenge to court’s interpretation of Parrish v. Fannie Mae , 292 Va. 44 , 787 S.E.2d 116 (2016) and § 8.01-130 fail because of lack of argument and evidence. Ononuju v. Va. Hous. Dev. Auth., 103 Va. Cir. 57, 2019 Va. Cir. LEXIS 622 (Norfolk Oct. 30, 2019).

    § 8.01-130.01. Unlawful detainer; expungement.

    1. If an action for unlawful detainer filed in general district court is dismissed or a nonsuit is taken and the time in which the action may be recommenced pursuant to § 8.01-229 has expired, provided that no order of possession has been entered in the case, the defendant may file a petition on a form created by the Supreme Court in the general district court in which the underlying unlawful detainer action was filed requesting expungement of the court records relating to the unlawful detainer. The petition shall provide the date that the order of dismissal or nonsuit was entered, the address of the property that was the subject of the unlawful detainer action, and the name of the plaintiff in the unlawful detainer action.
    2. Upon finding that the unlawful detainer action was dismissed or a nonsuit was taken and the time for recommencement of the action has expired and no order of possession was entered, the court shall, without a hearing, enter an order requiring the expungement of the court records.

    History. 2020, c. 1013.

    Editor’s note.

    Acts 2020, c. 1013, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2022.”

    Article 13.1. Warrants in Distress.

    § 8.01-130.1. Remedy for rent and for use and occupation.

    Rent of every kind may be recovered by distress or action. A landlord may also, by action, recover, when the agreement is not by deed, a reasonable satisfaction for the use and occupation of lands. On the trial of such action, if any parol demise or any agreement not by deed whereon a certain rent was reserved appears in evidence, the plaintiff shall not therefor be nonsuited, but may use the same as evidence of the amount of his debt or damages. In any action for rent, or for such use and occupation, interest shall be allowed as on other contracts.

    History. Code 1919, § 5519; Code 1950, § 55-227; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, recodified Title 55 as Title 55.1, effective October 1, 2019. As part of the recodification, former Chapter 13 (§ 55-227 et seq.) of Title 55 was recodified as Article 13.1 (§ 8.01-130.1 et seq.) of Chapter 3 of this title. Where appropriate, the historical citations to former sections have been added to corresponding new sections. For transition provisions, see § 55.1-100 . For tables of corresponding former and new sections, see the tables in Volume 10.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Debt, Action of, § 6.

    CASE NOTES

    I.Decided Under Prior Law.

    This section reaffirms the common law in providing that rent of every kind may be recovered by distress or action. Bird v. City of Richmond, 240 F. 545, 1917 U.S. App. LEXIS 2390 (4th Cir. 1917), aff'd, 249 U.S. 174, 39 S. Ct. 186, 63 L. Ed. 543, 1919 U.S. LEXIS 2241 (1919).

    It presupposes the relation of landlord and tenant. Raven Red Ash Coal Co. v. Ball, 185 Va. 534 , 39 S.E.2d 231, 1946 Va. LEXIS 226 (1946).

    And distress for rent will not lie unless the relation exists between the parties. The right is not only incident to that relation, but is dependent upon it. Church v. Goshen Iron Co., 112 Va. 694 , 72 S.E. 685 , 1911 Va. LEXIS 138 (1911).

    A landlord’s lien is given by this section and §§ 55-231 and 55-233. United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741, 1944 Va. LEXIS 184 (1944), rev'd, 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294, 1945 U.S. LEXIS 2765 (1945).

    This section and §§ 55-231 and 55-233 give the landlord a lien which is fixed and specific, and not one which is merely inchoate, and such a lien exists independently of the right of distress or attachment, which are merely remedies for enforcing it. Such a lien relates back to the beginning of the tenancy, thus giving it force and effect on date of the voluntary assignment. United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968).

    The case law indicates that § 55-231, this section and § 55-233 give a landlord a lien which is fixed and specific and not one which is merely inchoate. Such lien exists independent of the right of distress or attachment, which are merely remedies for enforcing it. When the landlord’s lien for rent is obtained, it relates back to the beginning of the tenancy and takes precedence over any lien of any other person obtained or created upon goods or chattels on the leased premises after the commencement of the tenancy. John Deskins Pic Pac, Inc. v. Flat Top Nat'l Bank, 59 Bankr. 809, 1986 Bankr. LEXIS 6264 (Bankr. W.D. Va. 1986).

    Extent to which landlord may distrain goods. —

    While a lien legally attaches to all property as might be on the premises when the lien is asserted or within 30 days prior to distraint, the landlord can distrain goods only to the extent necessary to satisfy the rent justly believed to be due, the tenant possessing an action for damages for excessive distraint. United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968).

    Priority of federal tax lien. —

    Where landlords obtained a distress warrant before the tenant made an assignment for the benefit of creditors, but did not levy thereunder, their lien was neither specific nor perfected under Virginia law and could not have priority over a federal tax lien with respect to the proceeds of a sale under the assignment. United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968).

    § 8.01-130.2. Who may recover rent or compensation.

    If a person is entitled to rent or compensation, whether such person has the reversion or not, then his personal representative or assignee may recover it as provided in § 8.01-130.1 , whatever the estate of the person owning it, or though his estate or interest in the land has ended. When the owner of real estate in fee, or holder of a term, yielding him rent dies, the rent due after such owner’s or termholder’s death shall be recoverable by such owner’s heir or devisee or such termholder’s personal representative. If the owner or holder alienates or assigns his estate or term, or the rent falls due after such alienation or assignment, the alienee or assignee may recover such rent.

    History. Code 1919, § 5520; Code 1950, § 55-228; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    CASE NOTES

    Ground rents, though not common in this State, are recognized as valid. Willis's Ex'r v. Commonwealth, 97 Va. 667 , 34 S.E. 460 , 1899 Va. LEXIS 83 (1899) (decided under prior law).

    § 8.01-130.3. Who is liable for rent.

    Rent may be recovered from the lessee or other person owing it, or his assignee, or the personal representative of either; however, no assignee shall be liable for rent that became due before his interest began. Nothing in this section shall impair or change the liability of heirs or devisees for rent, as for other debts of their ancestor or devisor.

    History. Code 1919, § 5521; Code 1950, § 55-229; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Landlord and Tenant, § 13.

    § 8.01-130.4. When and by whom distress made.

    A distress action for rent may be brought no later than five years from the time the rent becomes due, whether the lease is ended or not. The distress shall be made by a sheriff of the county or city where the premises yielding the rent, or some part thereof, is located or the goods liable to distress may be found, under warrant from a judge of, or a magistrate serving, the judicial district. Such warrant shall be founded upon a sworn petition of the person claiming the rent, or his agent, that (i) the petitioner believes the amount of money or other thing by which the rent is measured, to be specified in the petition in accordance with § 8.01-130.6 , is justly due to the claimant for rent reserved upon contract from the person of whom it is claimed, (ii) the petitioner alleges one or more of the grounds mentioned in § 8.01-534 and sets forth in the petition specific facts in support of such allegation, and (iii) the rent claimed is for rent due within five years from the time that it becomes due. The petition shall also specify the amount of the rent claimed and request either levy or seizure of the affected property prior to trial. The plaintiff shall, at the time of suing out a distress, give bond in conformity with the provisions of § 8.01-537.1 . The plaintiff praying for a distress warrant shall, at the time that he files his petition, pay the proper costs, fees, and taxes, and in the event of his failure to do so, the distress warrant shall not be issued.

    A judge or magistrate shall make an ex parte review of the petition and may receive evidence only in the form of a sworn petition, which shall be filed in the office of the clerks of court. The warrant may be issued in accordance with the prayer of the petition by a judge or magistrate only upon a determination that there appears from the petition that there is reasonable cause to believe that one of the grounds mentioned in § 8.01-534 exists, the allegations required to be in the petition are true, and bond that complies with § 8.01-537.1 has been posted.

    Each copy of the distress warrant shall be issued and served on each defendant together with (a) a form for requesting a hearing of exemption from levy or seizure, as provided in § 8.01-546.1 , and (b) a copy of the bond. The distress warrant may be issued or executed on any day, including a Saturday, Sunday, or other legal holiday. Service shall be made in accordance with the methods described in § 8.01-487.1 . The provisions of § 8.01-546.2 shall govern claims for exemption.

    The officer into whose hands the warrant is delivered shall levy or seize as directed in the warrant, except as may be provided by statute, the property found on the premises of the tenant as provided by § 8.01-130.6 . The officer shall return the warrant of distress to the court to which the warrant of distress is returnable by the return date unless otherwise notified by the court to make return by an earlier date.

    History. Code 1919, § 5522; Code 1950, § 55-230; 1962, c. 10; 1974, c. 458; 1976, c. 177; 1980, c. 555; 1986, c. 341; 1993, c. 841; 2008, cc. 551, 691; 2019, c. 712.

    Cross references.

    As to civil jurisdiction of general district courts, see § 16.1-77 . As to liens of landlords for advances to tenants, see § 43-29 .

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    § 8.01-130.5. Procedure for trial on warrant in distress.

    The distress warrant shall contain a return date and be tried in the same manner as an action on a warrant as prescribed in § 16.1-79 , except that the case shall be returnable not more than 30 days from its date of issuance. The trial or hearing of the issues, except as otherwise provided, shall be the same, as near as may be, as in actions in personam.

    History. 1980, c. 555, § 55-230.1; 1993, c. 841; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    § 8.01-130.6. On what goods levied; to what extent goods liable; priorities between landlord and other lienors.

    The distress may be levied on any goods of the lessee, his assignee, or any sublessee that are found on the premises or that may have been removed from the premises not more than 30 days prior to the levy. A levy within such 30 days shall have like effect as if the goods levied on had not been removed from the leased premises. If the goods of such lessee, assignee, or sublessee, when carried on the premises, are subject to a lien that is valid against his creditors, his interest only in such goods shall be liable to such distress. If any lien is created on such goods while they are upon the leased premises, or within 30 days after such lien is created, they are liable to distress, but for not more than six months’ rent if the premises are used for residential purposes, and not for farming or agriculture, and for not more than 12 months’ rent if the lands or premises are used for farming or agriculture, whether such rent has accrued before or after the creation of the lien. No other goods shall be liable to distress than such as are declared to be so liable in this section, nor shall the goods of the sublessee be liable to a greater amount than such sublessee owed the tenant at the time the distress was levied.

    History. Code 1919, § 5523; 1922, p. 863; 1932, p. 696; Code 1950, § 55-231; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    CASE NOTES

    Analysis

    I.Decided Under Prior Law.
    A.General Consideration.

    The object of this section is to protect the landlord against liens created upon property upon the leased premises and subject to distress, after the tenancy begins, by providing that liens so created shall be ineffectual to defeat the landlord’s right to recover for rent for the periods specified therein, whether such rent accrues before or after the creation of the liens. It is not intended to affect the right of the landlord to distrain for rent within five years from the time it becomes due, where no other lien has been created upon the property liable for rent at the time the distress warrant is issued and levied. Sprinkel v. Rosenheim & Son, 103 Va. 185 , 48 S.E. 883 , 1904 Va. LEXIS 25 (1904).

    For history of section, see Bradford v. Graham, 287 F. 686, 1923 U.S. App. LEXIS 2374 (4th Cir. 1923).

    Where property has been removed from the leased premises more than 30 days, neither a distress warrant nor an attachment for rent can be levied thereon. Dime Deposit & Disct. Bank v. Wescott, 113 Va. 567 , 75 S.E. 179 , 1912 Va. LEXIS 71 (1912).

    The property of a third person never was liable to distress, unless found upon the premises; and even where it is found there, the distress is taken away by the statute. Davis v. Payne's Adm'r, 25 Va. (4 Rand.) 332, 1826 Va. LEXIS 41 (1826).

    As to goods carried on premises and encumbered after commencement of tenancy, see Wades v. Figgatt, 75 Va. 575 , 1881 Va. LEXIS 41 (1881).

    As to liability of all encumbered personal property on premises where landlord distrained upon part, see Jones v. Phelan & Collander, 61 Va. (20 Gratt.) 229, 1871 Va. LEXIS 3 (1871).

    As to goods of undertenant under former wording of statute, see Bernard v. McClanahan, 115 Va. 453 , 79 S.E. 1059 , 1913 Va. LEXIS 56 (1913).

    B.Landlord’s Lien Generally.

    This section and §§ 55-227 and 55-233 give the landlord a lien which is fixed and specific, and not one which is merely inchoate, and such a lien exists independent of the right of distress or attachment, which are merely remedies for enforcing it. United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741, 1944 Va. LEXIS 184 (1944), rev'd, 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294, 1945 U.S. LEXIS 2765 (1945) (see City of Richmond v. Duesberry, 68 Va. (27 Gratt.) 210, 1876 Va. LEXIS 17 (1876); Lott v. Salsbury, 237 F. 191, 1916 U.S. App. LEXIS 1954 (4th Cir. 1916); Bradford v. Graham, 287 F. 686, 1923 U.S. App. LEXIS 2374 (4th Cir. 1923); United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968).

    But it has been said that, accurately speaking, neither this section nor § 55-233 gives the landlord a lien for rent, and that until his right has been perfected by the levy of a distress warrant his lien is merely inchoate. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 (1923). However, this statement was repudiated in United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741 (1944), rev’d as to priority of federal claim in 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294 (1945).

    In a bankruptcy proceeding the fact that the landlord did not attempt to enforce his lien against the debtor tenant by instituting a distress action was of no moment since it is abundantly clear that the statutory lien is not an inchoate lien; it exists from the creation of the tenancy and is legally enforceable in the courts. Virginia Nat'l Bank v. Balistreri, 8 Bankr. 703, 1981 Bankr. LEXIS 4927 (Bankr. E.D. Va. 1981).

    The case law indicates that this section and §§ 55-227 and 55-233 give a landlord a lien which is fixed and specific and not one which is merely inchoate. Such lien exists independent of the right of distress or attachment, which are merely remedies for enforcing it. When the landlord’s lien for rent is obtained, it relates back to the beginning of the tenancy and takes precedence over any lien of any other person obtained or created upon goods or chattels on the leased premises after the commencement of the tenancy. John Deskins Pic Pac, Inc. v. Flat Top Nat'l Bank, 59 Bankr. 809, 1986 Bankr. LEXIS 6264 (Bankr. W.D. Va. 1986).

    A landlord becomes a creditor of his tenant by virtue of his contract of rent and, further, this contract gives rise to a statutory lien on the personal property placed upon the demised premises. Virginia Nat'l Bank v. Balistreri, 8 Bankr. 703, 1981 Bankr. LEXIS 4927 (Bankr. E.D. Va. 1981).

    The landlord’s lien is for rent in arrears and to become due, for not exceeding the periods specified in this section and § 55-233, on the property of the tenant on the leased premises, or that which has been removed therefrom within 30 days, without distraint or attachment being made therefor. United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741, 1944 Va. LEXIS 184 (1944), rev'd, 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294, 1945 U.S. LEXIS 2765 (1945).

    Establishing amount of lien. —

    The amount of the lien is not established until the date of the sale under an uncontested distress levy or the date of the judgment if the levy is contested; the judgment determines the amount of the tenant’s debt. United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968).

    Extent to which landlord may distrain goods. —

    While a lien legally attaches to all property as might be on the premises when the lien is asserted or within 30 days prior to distraint, the landlord can distrain goods only to the extent necessary to satisfy the rent justly believed to be due, the tenant possessing an action for damages for excessive distraint. United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968).

    Lien waived by lease to merchant. —

    A landlord by leasing premises to a retail merchant with knowledge that he is going to conduct such a business thereon, or by thereafter knowingly assenting to the conduct of a retail business by his tenant, will be held to have waived his statutory lien upon a shifting stock of goods. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 , 1923 Va. LEXIS 9 (1923).

    Agricultural lien. —

    Since the landlord had a valid agricultural lien as defined by subdivision a 5 of § 8.9A-102 that was created by § 55-231 in favor of the landlord, and its effectiveness was not dependent on the landlord’s possession of the real property in question, the landlord’s lien was governed by Virginia’s Revised Article 9 of the Uniform Commercial Code, § 8.9A-101 et seq. Dean v. Hall, No. 3:02CV728, 2003 U.S. Dist. LEXIS 12720 (E.D. Va. Feb. 25, 2003).

    C.Priorities.

    In bankruptcy proceedings. —

    This section and § 55-233 give the landlord a lien for rent upon the goods of the lessee on the leased premises, which will take precedence in bankruptcy proceedings. Lott v. Salsbury, 237 F. 191, 1916 U.S. App. LEXIS 1954 (4th Cir. 1916); Bradford v. Graham, 287 F. 686, 1923 U.S. App. LEXIS 2374 (4th Cir. 1923).

    In a bankruptcy proceeding where debtor-tenants had agreed to the recovery of premises by creditor-landlord shortly after the landlord had locked out the tenant for failure to pay rent, and where the debtors had abandoned the lease and the landlord had recovered his property, the lease at that point was terminated and all right to collect rent ended; but the landlord was entitled to recover, pursuant to a lien superior to that of another secured creditor, unpaid rent for days prior to the termination of the lease. Virginia Nat'l Bank v. Balistreri, 8 Bankr. 703, 1981 Bankr. LEXIS 4927 (Bankr. E.D. Va. 1981).

    Liens created after commencement of tenancy. —

    When a landlord’s lien for rent is obtained, it relates back to the beginning of the tenancy, and takes precedence over any lien of any other person obtained or created upon goods or chattels on the leased premises after the commencement of the tenancy. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 , 1923 Va. LEXIS 9 (1923).

    A landlord’s lien relates back to the beginning of the tenancy, thus giving it force and effect on date of the voluntary assignment. United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968).

    Liens created before commencement of new tenancy. —

    Where a stranger took an assignment of a lease without the consent of the landlord, bought the lessee’s furniture and gave a deed of trust thereon, and then at the end of the term held over, it was held that this was a new term and that the rent for the former term being paid and the deed of trust given before the new term the lien of the deed of trust was prior to that of the landlord. City of Richmond v. Duesberry, 68 Va. (27 Gratt.) 210, 1876 Va. LEXIS 17 (1876).

    Tenant under lease containing no agreement for renewal, executed deed of trust on personalty on premises. Afterwards there was an agreement for renewal different in terms from the original lease. It was held that a new tenancy was created after the execution of the deed of trust, which was therefore prior to the lien for rent. Upper Appomattox Co. v. Hamilton, 83 Va. 319 , 2 S.E. 195 , 1887 Va. LEXIS 72 (1887).

    A tenancy from month to month, created by holding over after expiration of original term, is a new term for each month of such holding over. Accordingly liens of execution creditors not created until after the commencement of the lease nevertheless take priority over distress liens of the landlord, when at the time of their creation no default had been made in the payment of rent, and there was no default until several months thereafter. Leonard v. Standard Distilling Co., 16 Va. L. Reg. 491 (1910). But see last paragraph of § 55-233, added by the General Assembly in 1932, concerning monthly and weekly tenancies .

    A statutory lien protects the landlord from most other liens created after the commencement of the tenancy upon goods on the leased premises which belong to a person liable for rent; thus, the landlord is protected against all deeds of trust, mortgages, and other liens, where the lien has been created after the commencement of the tenancy, upon goods on the leased premises which belong to a person liable for rent. Virginia Nat'l Bank v. Balistreri, 8 Bankr. 703, 1981 Bankr. LEXIS 4927 (Bankr. E.D. Va. 1981).

    Lien for payroll taxes. —

    In a suit by a trustee in a deed of assignment for the benefit of creditors to determine the priority of payment of claims, the Unemployment Compensation Commission (now Virginia Employment Commission) contended that it was entitled to priority of payment over the claim of the landlord by virtue of § 60.2-523 , which makes payroll taxes a lien against an employer’s assets but preserves the priority of “any mortgage, deed of trust or other lien duly perfected prior to the date the contributions” accrued. It was held that the lien of the landlord was a “lien duly perfected” within the meaning of the statute, since the landlord’s lien related back to the beginning of the tenancy and therefore was perfected prior to the accrual of the Commission’s claim for contributions. United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741, 1944 Va. LEXIS 184 (1944), rev'd, 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294, 1945 U.S. LEXIS 2765 (1945).

    Claims of the United States against an insolvent debtor who has made an assignment for the benefit of creditors were held entitled to priority over a lien asserted under this section and §§ 55-227 and 55-233 by a landlord for rent. United States v. Waddill, Holland & Flinn, Inc., 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294, 1945 U.S. LEXIS 2765 (1945).

    Tax liens of the United States, under applicable provisions of the Internal Revenue Code, take priority over unperfected or inchoate liens created by State law. United States v. Lawler, 201 Va. 686 , 112 S.E.2d 921, 1960 Va. LEXIS 148 (1960).

    Where landlords obtained a distress warrant before the tenant made an assignment for the benefit of creditors, but did not levy thereunder, their lien was neither specific nor perfected under Virginia law and could not have priority over a federal tax lien with respect to the proceeds of a sale under the assignment. United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968).

    § 8.01-130.7. Procedure when distress levied and tenant unable to give forthcoming bond; what defense may be made.

    1. On affidavit by a tenant, whose property has been levied on under a warrant of distress, that (i) he is unable to give the bond required in § 8.01-526 and (ii) he has a valid defense under subsection B, the officer levying the warrant shall permit the property to remain in the possession and at the risk of the tenant, and shall return the warrant forthwith, together with the affidavit, to the court to which such warrant is returnable. Thereupon the landlord, after 10 days’ notice in writing to the tenant, may make a motion for a judgment for the amount of the rent and for a sale of the property levied on. The tenant may make such defense as he is authorized to make, including defenses permitted under subsection B to an action or motion on the bond when one is given. Upon making such defense, the officer shall permit the property to remain in the possession of and at the risk of the tenant. If the property is perishable, or expensive to keep, the court may order it to be sold, and on the final trial of the cause, the court shall dispose of the property, or proceeds of sale, according to the rights of the parties.
    2. In an action or motion on a forthcoming bond, when it is taken under a distress warrant, the defendants may make defense on the ground that the distress was for rent not due in whole or in part or was otherwise illegal.

    History. Code 1919, § 6519; Code 1950, § 8-453; Code 1950, § 55-232; 1970, c. 43; 1975, c. 235; 1977, c. 624; 1980, c. 555; 1986, c. 341; 2007, c. 869; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    CASE NOTES

    Establishing amount of lien. —

    The amount of the lien is not established until the date of the sale under an uncontested distress levy or the date of the judgment if the levy is contested; the judgment determines the amount of the tenant’s debt. United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968) (decided under prior law).

    § 8.01-130.8. Review of decision to issue ex parte order or process; claim of exemption.

    Promptly after levy on the property or promptly after possession of the property is taken by the officer pursuant to an ex parte order, or after denial of an application to issue such order by a magistrate, upon application of either party, and after reasonable notice, a judge of the general district court having jurisdiction shall conduct a hearing to review the decision to issue the ex parte order or process. In the event that the judge finds that the order or process should not have been issued, the court may dismiss the distraint or award actual damages and reasonable attorney fees to the person whose property was taken, or both. The provisions of § 8.01-546.2 shall govern claims for exemption.

    History. 1974, c. 458, § 55-232.2; 1980, c. 555; 1986, c. 341; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    § 8.01-130.9. On what terms purchasers and lienors inferior to landlord may remove goods; certain liens not affected.

    If, after the commencement of any tenancy, a lien is obtained or created by deed of trust, mortgage, or otherwise upon the interest or property in goods on premises leased or rented of any person liable for the rent, or such goods are sold, the party having such lien, or the purchaser of such goods, may remove them from the premises only on the following terms: On paying to the person entitled to the rent so much as is in arrear, and securing to him so much as to become due, what is so paid or secured not being more altogether than six months’ rent if the premises are in a city or town, or in any subdivision of suburban and other lands divided into building lots for residential purposes, or of premises anywhere used for residential purposes, and not for farming or agriculture, and not being more altogether than 12 months’ rent, if the lands or premises are used for farming or agriculture. If the goods are taken under legal process, the officer executing it shall, out of the proceeds of the goods, make such payment of what is in arrear, and as to what is to become due he shall sell a sufficient portion of the goods on a credit until then, taking from the purchasers bonds, with good security, payable to the person so entitled, and delivering such bonds to him. If the goods are not taken under legal process, such payment and security shall be made and given before their removal. Neither this section nor § 8.01-130.6 shall affect any lien for taxes, levies, or militia fines.

    For the purpose of this section and § 8.01-130.6 , a monthly or weekly tenancy shall not be construed as a new lease for every month or week of occupation of the premises by the tenant, but his tenancy shall be considered as a continuance of his original lease so long as he continues to occupy the property without making any new written lease.

    History. Code 1919, § 5524; 1922, p. 863; 1932, p. 696; Code 1950, § 55-233; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assignments for the Benefit of Creditors, § 53.

    CASE NOTES

    I.Decided Under Prior Law.

    History of section. —

    See Bradford v. Graham, 287 F. 686, 1923 U.S. App. LEXIS 2374 (4th Cir. 1923).

    This section is perfectly plain and definite in its terms. It is unambiguous and hardly to be misunderstood. Kelly v. Worsham, 160 Va. 275 , 168 S.E. 338 , 1933 Va. LEXIS 206 (1933).

    Should its enforcement work hardships the remedy is with the legislature. The court has no other alternative than to give effect to its manifest meaning. Kelly v. Worsham, 160 Va. 275 , 168 S.E. 338 , 1933 Va. LEXIS 206 (1933).

    This section and §§ 55-227 and 55-231 give the landlord a lien which is fixed and specific, and not one which is merely inchoate, and such a lien exists independently of the right of distress or attachment, which are merely remedies for enforcing it. Such a lien relates back to the beginning of the tenancy, thus giving it force and effect on date of the voluntary assignment. United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968).

    The case law indicates that §§ 55-227, 55-231 and this section give a landlord a lien which is fixed and specific and not one which is merely inchoate. Such lien exists independent of the right of distress or attachment, which are merely remedies for enforcing it. When the landlord’s lien for rent is obtained, it relates back to the beginning of the tenancy and takes precedence over any lien of any other person obtained or created upon goods or chattels on the leased premises after the commencement of the tenancy. John Deskins Pic Pac, Inc. v. Flat Top Nat'l Bank, 59 Bankr. 809, 1986 Bankr. LEXIS 6264 (Bankr. W.D. Va. 1986).

    The landlord is protected by the statute against liens created after the commencement of the tenancy, upon goods on the leased premises which belong to a person liable for rent, and where there is an existing liability for rent in arrear, or to become due, at the time the lien is created. City of Richmond v. Duesberry, 68 Va. (27 Gratt.) 210 (1876), quoted in United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741 (1944), rev’d as to priority of federal claim in 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294 (1945).

    A statutory lien protects the landlord from most other liens created after the commencement of the tenancy upon goods on the leased premises which belong to a person liable for rent; thus, the landlord is protected against all deeds of trust, mortgages, and other liens, where the lien has been created after the commencement of the tenancy, upon goods on the leased premises which belong to a person liable for rent. Virginia Nat'l Bank v. Balistreri, 8 Bankr. 703, 1981 Bankr. LEXIS 4927 (Bankr. E.D. Va. 1981).

    In a bankruptcy proceeding where debtor-tenants had agreed to the recovery of premises by creditor-landlord shortly after the landlord had locked out the tenant for failure to pay rent, and where the debtors had abandoned the lease and the landlord had recovered his property, the lease at that point was terminated and all right to collect rent ended; but the landlord was entitled to recover, pursuant to a lien superior to that of another secured creditor, unpaid rent for days prior to the termination of the lease. Virginia Nat'l Bank v. Balistreri, 8 Bankr. 703, 1981 Bankr. LEXIS 4927 (Bankr. E.D. Va. 1981).

    And trustee in assignment for benefit of creditors takes subject to section. —

    The trustee in a tenant’s deed of assignment for the benefit of creditors took subject to the provisions of this section, and was liable, as such trustee, to pay rent as a preferred charge on the trust estate. Allen v. Parkey, 154 Va. 739 , 149 S.E. 615 , 1929 Va. LEXIS 234 (1929).

    But lien for taxes has priority. —

    This section subordinates a landlord’s lien to a city’s lien for personal property taxes assessed against specific chattels on the leased premises. United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741, 1944 Va. LEXIS 184 (1944), rev'd, 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294, 1945 U.S. LEXIS 2765 (1945).

    Tax liens of the United States, under applicable provisions of the Internal Revenue Code, take priority over unperfected or inchoate liens created by state law. United States v. Lawler, 201 Va. 686 , 112 S.E.2d 921, 1960 Va. LEXIS 148 (1960).

    Where landlords obtained a distress warrant before the tenant made an assignment for the benefit of creditors, but did not levy thereunder, their lien was neither specific nor perfected under Virginia law and could not have priority over a federal tax lien with respect to the proceeds of a sale under the assignment. United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968).

    Establishing amount of lien. —

    The amount of the lien is not established until the date of the sale under an uncontested distress levy or the date of the judgment if the levy is contested; the judgment determines the amount of the tenant’s debt. United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968).

    Extent to which landlord may distrain goods. —

    While a lien legally attaches to all property as might be on the premises when the lien is asserted or within 30 days prior to distraint, the landlord can distrain goods only to the extent necessary to satisfy the rent justly believed to be due, the tenant possessing an action for damages for excessive distraint. United States v. Melchiorre, 292 F. Supp. 305, 1968 U.S. Dist. LEXIS 11939 (E.D. Va. 1968).

    When noncompliance with statutes gives landlord right of personal action. —

    The removal of the goods mentioned in the statute, after notice that the rent is in arrear, without first complying with the terms thereof upon which the permission to remove the goods is given, is a wrong to the estate of the landlord, for which he may maintain an action against the person removing the goods and recover a personal judgment. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 (1923), in which English precedents were followed .

    The purchaser of a battery charger from a tenant paid the purchase price and removed it from the leased premises several months before the expiration of the lease. At the time of removal the tenant was in arrears for rent in a sum greater than the purchase price of the machine. The landlord was held entitled to recover the amount of the purchase price from the purchaser. Kelly v. Worsham, 160 Va. 275 , 168 S.E. 338 , 1933 Va. LEXIS 206 (1933).

    The personal liability of the person removing the property is not dependent upon notice of the exact amount of unpaid rent mentioned in the statute. Notice of any rent so mentioned being in arrear, or to become due, puts the person removing property upon inquiry, and is equivalent to notice of the exact amount of such rent, if by inquiry of the landlord he would have ascertained the amount. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 , 1923 Va. LEXIS 9 (1923).

    And certain other matters are immaterial to right of recovery. —

    In an action by a landlord under this section against a lienholder or purchaser removing goods of the tenant from the premises, whether or not other goods liable for rent sufficient to satisfy the rent in arrear were left on the premises, or whether the landlord could have levied a distress warrant on the goods before they were removed, or whether there was a conversion of the goods which prevented such levy, or fraud or other conduct whatsoever on the part of the person removing the goods, which was the proximate cause of the loss or damage to the landlord sought to be recovered in the action, are immaterial as bearing on the right of recovery by the landlord. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 , 1923 Va. LEXIS 9 (1923).

    A landlord leasing premises to a retail merchant with knowledge that he is going to conduct such a business thereon, or thereafter knowingly assenting to the conduct of a retail business by his tenant, will be held to have waived all right to assert a personal liability for rent against purchasers of articles of merchandise from the tenant in the regular course of retail trade. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 , 1923 Va. LEXIS 9 (1923).

    As to goods placed on premises and encumbered after commencement of tenancy, see Wades v. Figgatt, 75 Va. 575 , 1881 Va. LEXIS 41 (1881).

    § 8.01-130.10. When goods of a sublessee may be removed from leased premises.

    The following limitations shall apply to § 8.01-130.9 : a sublessee, or a purchaser from him, or a creditor holding a deed of trust, mortgage, or other encumbrance created on his goods after they were carried on the leased premises, may remove the same upon payment of so much of the rent contracted to be paid by him as is in arrear, and securing the residue, not exceeding six months’ rent, if the premises are in a city or town, or in any subdivision of suburban and other lands divided into building lots for residential purposes, or of premises anywhere used for residential purposes, and not for farming or agriculture, and for not more than 12 months’ rent if the lands or premises are used for farming or agriculture. If the goods are taken under legal process against him, the officer executing the same shall, out of the proceeds of his goods, make payment of so much of the rent as to which he is in arrear, and as to what is to become due from him shall sell sufficient of the goods upon credit until then, taking from the purchaser bonds with good security, payable to the party entitled to receive the same, and deliver them to him.

    History. Code 1919, § 5525; 1922, p. 863; 1932, p. 697; Code 1950, § 55-234; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    § 8.01-130.11. When officer may enter by force to levy distress or attachment.

    The officer having such distress warrant, or an attachment for rent, if there be need for it, may, in the daytime, break open and enter into any house or close in which there may be goods liable to the distress or attachment and may, either in the day or night, break open and enter any house or close wherein there may be any goods so liable that have been fraudulently or clandestinely removed from the demised premises. He may also levy such distress warrant or attachment on property liable for the rent found in the personal possession of the party liable therefor.

    History. Code 1919, § 5526; Code 1950, § 55-235; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    § 8.01-130.12. When distress not unlawful because of irregularity, etc.

    When distress is made for rent justly due and any irregularity or unlawful act is afterwards done by the party distraining, or his agent, the distress itself shall not be deemed to be unlawful, nor is the party making it therefore deemed a trespasser ab initio. The party aggrieved by such irregularity or unlawful act may, by action, recover full satisfaction for the special damage he has sustained thereby.

    History. Code 1919, § 5527; Code 1950, § 55-236; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    § 8.01-130.13. Return of execution; process of sale thereunder.

    The sheriff under writ of execution from the court after hearing and judgment for the landlord, except as otherwise provided by law, shall make return on his execution as may be placed in his hands for collection and file the same, within 90 days after the same may have come to his hands, with the clerk of the court in which the case was heard. Upon the return of such execution such clerk shall preserve such execution in his office as is now provided as to other executions. If such return shows that a levy has been made and that property levied on remains unsold, it shall be lawful for the clerk of the court in whose office such return is filed to issue a writ of venditioni exponas thereon just as if the return were upon writ of fieri facias.

    History. Code 1919, § 5528; 1930, p. 456; Code 1950, § 55-237; 1962, c. 10; 1975, c. 235; 1980, c. 555; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    Article 14. Ejectment.

    § 8.01-131. Action of ejectment retained; when and by whom brought.

    1. The action of ejectment is retained, subject to the provisions hereinafter contained, and to the applicable Rules of Court.
    2. Such action may be brought in the same cases in which a writ of right might have been brought prior to the first day of July, 1850, and by any person claiming real estate in fee or for life or for years, either as heir, devisee or purchaser, or otherwise.

    History. Code 1950, §§ 8-796, 8-797; 1954, c. 333; 1977, c. 617.

    Cross references.

    For section abolishing writ of right, see § 8.01-165 .

    For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

    Law Review.

    For article on the abolition of the forms of action in Virginia, see 17 U. Rich. L. Rev. 273 (1983).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Adverse Possession, § 55.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Ejectment is an action to determine the title and right of possession to real property. Sheffield v. Department of Hwys. & Transp., 240 Va. 332 , 397 S.E.2d 802, 7 Va. Law Rep. 736, 1990 Va. LEXIS 132 (1990).

    The landowner’s constitutional right is a right to just compensation, not a right to recover possession of the property. Sheffield v. Department of Hwys. & Transp., 240 Va. 332 , 397 S.E.2d 802, 7 Va. Law Rep. 736, 1990 Va. LEXIS 132 (1990).

    Form of action. —

    Ejectment was a common law action designed to try title to land and by statute it continues to be a law action. Seoane v. Drug Emporium, Inc., 249 Va. 469 , 457 S.E.2d 93, 1995 Va. LEXIS 66 (1995).

    Ejectment remedy inappropriate to prosecute inverse condemnation claim against Commonwealth. —

    Given the nature of the action of ejectment, and the entitlement of the successful claimant to be put into possession of the disputed land, the remedy is inappropriate and unsuitable as a vehicle to prosecute an inverse condemnation claim against the Commonwealth. Sheffield v. Department of Hwys. & Transp., 240 Va. 332 , 397 S.E.2d 802, 7 Va. Law Rep. 736, 1990 Va. LEXIS 132 (1990).

    II.Decisions Under Prior Law.

    Editor’s note.

    English law compared. —

    An action of ejectment brought under this article affects the title to land more than the action of ejectment in England. United States v. Lee, 106 U.S. 196, 1 S. Ct. 240, 27 L. Ed. 171, 1882 U.S. LEXIS 1534 (1882), limited, Malone v. Bowdoin, 369 U.S. 643, 82 S. Ct. 980, 8 L. Ed. 2d 168, 1962 U.S. LEXIS 2148 (1962).

    Ejectment does not lie where entry cannot be made. —

    Ejectment lies for the recovery of corporeal hereditaments. It does not lie for anything where an entry cannot be made, as for example, easements, licenses, rights of user. Steinman v. Vicars, 99 Va. 595 , 39 S.E. 227 , 1901 Va. LEXIS 84 (1901); King v. Norfolk & W. Ry., 99 Va. 625 , 39 S.E. 701 , 1901 Va. LEXIS 89 (1901). But see, Reynolds v. Cook, 83 Va. 817 , 3 S.E. 710 , 1887 Va. LEXIS 127 (1887).

    Ejectment is the proper action for one having legal title, who is not in possession, in order to recover possession and establish his title. Jennings v. Gravely, 92 Va. 377 , 23 S.E. 763 , 1895 Va. LEXIS 127 (1895).

    Distinguished from forcible or unlawful entry. —

    The action of forcible or unlawful entry is materially different from the action of ejectment. In the latter action, title is involved, while in the former only the right to possession is tried. In the action of forcible entry the plaintiff need only show the right of immediate possession, while in ejectment the plaintiff must always recover on the strength of his title. Power v. Tazewells, 66 Va. (25 Gratt.) 786, 1875 Va. LEXIS 85 (1875); Davis v. Mayo, 82 Va. 97 , 1886 Va. LEXIS 13 (1886).

    Trustee as plaintiff. —

    A trustee, holding the legal title, may maintain ejectment, even after the trust is satisfied. Although a cestui que trust, after the trust is satisfied, may maintain ejectment, that does not deprive the trustee, holding the legal title, of his right to maintain such an action. Hopkins v. Stephens, 23 Va. (2 Rand.) 422, 1824 Va. LEXIS 18 (1824).

    Effect of statute on existing rights. —

    If the plaintiff in ejectment would have been entitled at the time the Code of 1849 went into effect and at the time of the institution of his suit, to recover in a writ of right, he is entitled to recover in the present action of ejectment, under the provisions of this section. Mitchell v. Baratta, 58 Va. (17 Gratt.) 445, 1867 Va. LEXIS 18 (1867).

    CIRCUIT COURT OPINIONS

    Timeliness. —

    Ten-year statute of limitations set forth in § 8.01-255.1 did not apply, and the diocese’s lawsuit was timely filed prior to the expiration of the 15-year statute of limitations for ejectment actions, where the diocese alleged that the parish retained church property after it ceased to be used for Episcopal purposes and refused to convey the property to the diocese upon the declaration of abandonment, and as a result, the diocese had pled a breach of the terms of the fiduciary relationship between the parties rather than a reversionary interest in land. Protestant Episcopal Church in the Diocese of S. Va. v. Church of the Messiah, 103 Va. Cir. 49, 2019 Va. Cir. LEXIS 446 (Chesapeake Aug. 30, 2019).

    § 8.01-132. What interest and right plaintiff must have.

    No person shall bring such ejectment action unless he has, at the time of commencing it, a subsisting interest in the premises claimed and a right to recover the same, or to recover the possession thereof, or some share, interest or portion thereof.

    History. Code 1950, § 8-799; 1977, c. 617.

    Cross references.

    As to proceedings to establish right of reentry, see § 55.1-1419 .

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Cotenancy, § 43.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    The landowner’s constitutional right is a right to just compensation, not a right to recover possession of the property. Sheffield v. Department of Hwys. & Transp., 240 Va. 332 , 397 S.E.2d 802, 7 Va. Law Rep. 736, 1990 Va. LEXIS 132 (1990).

    Grantor of deed of trust may maintain action in own name. —

    In an action of ejectment a deed of trust should be construed as a mere lien on the property, and the grantor may maintain an action in ejectment in his own name. Providence Properties, Inc. v. United Va. Bank/Seaboard Nat'l, 219 Va. 735 , 251 S.E.2d 474, 1979 Va. LEXIS 164 (1979).

    Grantee of property that has a public easement was not entitled to maintain an action in ejectment, since in Virginia, no person shall bring such ejectment action unless he has, at the time of commencing it, a subsisting interest in the premises claimed and a right to recover the same, or to recover the possession thereof. Laughlin v. Morauer, 849 F.2d 122, 1988 U.S. App. LEXIS 7790 (4th Cir. 1988).

    Contingent or expectant interest. —

    Under this section even if grantee was conveyed some kind of contingent or expectant interest by the deed, he had no right to recover the same because the record does not indicate any kind of abandonment of the park or vacation of the plat, or cessation of use, or the like, to give him any right to assert any future interest he may have in the property. Laughlin v. Morauer, 849 F.2d 122, 1988 U.S. App. LEXIS 7790 (4th Cir. 1988).

    B.Requirement of Recovery on Strength of Own Title.

    Plaintiff must recover on strength of own title. —

    In actions for ejectment, the plaintiff has the burden of proving that he has good title and the right to possession, and he must recover upon the strength of his own title rather than upon the weakness of the defendant’s title. Providence Properties, Inc. v. United Va. Bank/Seaboard Nat'l, 219 Va. 735 , 251 S.E.2d 474, 1979 Va. LEXIS 164 (1979).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    The plaintiff in an action of ejectment must have legal title and a present right of possession under it at the time of the commencement of the action. Nelson v. Triplett, 81 Va. 236 , 1885 Va. LEXIS 26 (1885); Jennings v. Gravely, 92 Va. 377 , 23 S.E. 763 , 1895 Va. LEXIS 127 (1895).

    Presumed where title clear. —

    As a general rule, a plaintiff in ejectment must show a legal title in himself, and a present right to possession under such title. In the absence, however, of evidence to the contrary, the law presumes that the right of possession is incident to and follows the legal title. Casselman v. Bialas, 112 Va. 57 , 70 S.E. 479 , 1911 Va. LEXIS 52 (1911).

    Plaintiff must trace title from Commonwealth. —

    As a general rule a plaintiff to recover in an action of ejectment must trace unbroken chain of title to the Commonwealth or established title by adverse possession. Bugg v. Leay, 107 Va. 648 , 60 S.E. 89 , 1908 Va. LEXIS 122 (1908); Spriggs v. Jamerson, 115 Va. 250 , 78 S.E. 571 , 1913 Va. LEXIS 29 (1913) (see also Sulphur Mines Co. v. Thompson, 93 Va. 293 , 25 S.E. 232 (1896)).

    But this is not necessary when title of parties is from a common source. —

    It is not necessary for plaintiff to trace title to the Commonwealth where both he and the defendant claim title from a common source. In such a case the defendant is estopped to go back of the common source in order to question the plaintiff’s title and it is sufficient for the plaintiff to show that he has better title from that source. Hurley v. Charles, 110 Va. 27 , 65 S.E. 468 , 1909 Va. LEXIS 112 (1909); Jennings v. Marston, 121 Va. 79 , 92 S.E. 821 , 1917 Va. LEXIS 10 (1917).

    However, the plaintiff cannot connect the defendant with the common source of title by proof of a parol purchase of the land. Hurley v. Charles, 110 Va. 27 , 65 S.E. 468 , 1909 Va. LEXIS 112 (1909).

    Present, operative, outstanding legal title in another will defeat a recovery by the plaintiff although the defendant does not connect himself therewith. Holladay v. Moore, 115 Va. 66 , 78 S.E. 551 , 1913 Va. LEXIS 10 (1913).

    Effect of prior possession. —

    Prior peaceful possession by the plaintiff is prima facie evidence of ownership and seisin, and is sufficient to authorize recovery unless the defendant shows a better title in himself or another. McMurray v. Dixon, 105 Va. 605 , 54 S.E. 481 , 1906 Va. LEXIS 68 (1906); Holladay v. Moore, 115 Va. 66 , 78 S.E. 551 , 1913 Va. LEXIS 10 (1913).

    The principle that possession under color of title constitutes a prima facie title is under the great weight of authority restricted to those factual situations where the defendant is a mere intruder or trespasser without color of title. Bull Run Dev. Corp. v. Jackson, 201 Va. 95 , 109 S.E.2d 400, 1959 Va. LEXIS 198 (1959).

    Demand and notice necessary before action against tenant at will. —

    Before bringing an action of ejectment against a tenant at will, demand and notice to quit are necessary, and a vendee, who is put in possession without conveyance being made, is a tenant at will and entitled to notice. Pettit v. Cowherd, 83 Va. 20 , 1 S.E. 392 , 1887 Va. LEXIS 33 (1887); Jones v. Temple, 87 Va. 210 , 12 S.E. 404 , 1890 Va. LEXIS 111 (1890).

    B.Requirement of Recovery on Strength of Own Title.

    The plaintiff in ejectment must recover on the strength of his own title and cannot rely on the weakness of the defendant’s claim. McKinney v. Daniel, 90 Va. 702 , 19 S.E. 880 , 1894 Va. LEXIS 48 (1894); Merryman v. Hoover, 107 Va. 485 , 59 S.E. 483 , 1907 Va. LEXIS 67 (1907); Davis v. Bostic, 125 Va. 698 , 100 S.E. 463 , 1919 Va. LEXIS 58 (1919).

    Exceptions. —

    To the general rule that a plaintiff in ejectment must recover on the strength of his own title there are several well defined exceptions resting for the most part on the principle of estoppel. Tapscott v. Cobbs, 52 Va. (11 Gratt.) 172, 1854 Va. LEXIS 13 (1854); Rhule v. Seaboard Air Line Ry., 102 Va. 343 , 46 S.E. 331 , 1904 Va. LEXIS 75 (1904).

    As when landlord sues tenant. —

    A tenant is estopped to deny his landlord’s title, and, hence, in an action of ejectment by a landlord he is not required to establish title as against the tenant. Miller v. Williams, 56 Va. (15 Gratt.) 213, 1859 Va. LEXIS 11 (1859); Suttle v. Richmond, F. & P.R.R., 76 Va. 284 , 1882 Va. LEXIS 31 (1882).

    Also, when one is in possession against an intruder. —

    Although, in general, legal title in the plaintiff must be shown in order to sustain a recovery in ejectment, as against mere intruders without semblance of right, prior peaceable possession is sufficient. Rhule v. Seaboard Air Line Ry., 102 Va. 343 , 46 S.E. 331 , 1904 Va. LEXIS 75 (1904); McMurray v. Dixon, 105 Va. 605 , 54 S.E. 481 , 1906 Va. LEXIS 68 (1906).

    And when grantor enforces forfeiture for breach of condition. —

    Where there is a breach of condition subsequent, the legal title to the land remains in the grantee until the forfeiture is consummated, but the practice in Virginia, under § 55-239, is to bring ejectment in such case although the plaintiff has not the legal title. Pence v. Tidewater Townsite Corp., 127 Va. 447 , 103 S.E. 694 , 1920 Va. LEXIS 63 (1920).

    C.When Title Must Exist.

    A plaintiff in ejectment must have title at the time of the commencement of his action and cannot acquire it afterwards. Merryman v. Hoover, 107 Va. 485 , 59 S.E. 483 , 1907 Va. LEXIS 67 (1907).

    But where a plaintiff, after suit brought, aliens the land he may recover for the benefit of the alienee. Right to recover at the commencement of the action is all that is required by the statute. Bolling v. Teel, 76 Va. 487 , 1882 Va. LEXIS 53 (1882).

    D.Evidence of Title.

    The documentary evidence relied on must identify the land in dispute. Blakey v. Morris, 89 Va. 717 , 17 S.E. 126 , 1893 Va. LEXIS 93 (1893); Craig-Giles Iron Co. v. Wickline, 126 Va. 223 , 101 S.E. 225 , 1919 Va. LEXIS 89 (1919).

    A grant from the Commonwealth confers constructive seisin sufficient to support an action of ejectment. Actual seisin is not necessary. Howdashell v. Krenning, 103 Va. 30 , 48 S.E. 491 , 1904 Va. LEXIS 4 (1904).

    When grant may be presumed. —

    The plaintiff in an action of ejectment may show title in himself either by showing a grant from the crown or the Commonwealth and connecting himself therewith by a regular chain of title, or by showing such a chain of facts as will warrant the jury in presuming a grant. Sulphur Mines Co. v. Thompson, 93 Va. 293 , 25 S.E. 232 , 1896 Va. LEXIS 76 (1896); Spriggs v. Jamerson, 115 Va. 250 , 78 S.E. 571 , 1913 Va. LEXIS 29 (1913); Brunswick Land Corp. v. Perkinson, 146 Va. 695 , 132 S.E. 853 , 1926 Va. LEXIS 358 (1926); Prettyman v. M. J. Duer & Co., 189 Va. 122 , 52 S.E.2d 156, 1949 Va. LEXIS 155 (1949); Bull Run Dev. Corp. v. Jackson, 201 Va. 95 , 109 S.E.2d 400, 1959 Va. LEXIS 198 (1959).

    A plaintiff claiming title under a lost deed must show strong and conclusive evidence of the contents of the deed. Carter v. Wood, 103 Va. 68 , 48 S.E. 553 , 1904 Va. LEXIS 11 (1904).

    Decree requiring execution of conveyance does not give plaintiff title. —

    A decree requiring the execution of a conveyance does not of itself vest title in the complainant, and should not be received as evidence of legal title in an action of ejectment. Nelson v. Triplett, 81 Va. 236 , 1885 Va. LEXIS 26 (1885).

    Title to land may be acquired by adverse possession, and such title is sufficient to support an action of ejectment. Norfolk v. Cooke, 68 Va. (27 Gratt.) 430, 1876 Va. LEXIS 37 (1876); Thomas v. Jones, 69 Va. (28 Gratt.) 383, 1877 Va. LEXIS 75 (1877).

    Plaintiff has burden of proving boundaries. —

    A plaintiff in ejectment claiming under an inclusive grant, embracing excepted lands, has the burden of establishing his boundaries and locating the excepted lands, and of showing that the land claimed by the defendants is within the grant and not in the excepted portions. Reusens v. Lawson, 91 Va. 226 , 21 S.E. 347 , 1895 Va. LEXIS 21 (1895); Virginia Coal & Iron Co. v. Keystone Coal & Iron Co., 101 Va. 723 , 45 S.E. 291 , 1903 Va. LEXIS 79 (1903); Sutherland v. Gent, 116 Va. 783 , 82 S.E. 713 , 1914 Va. LEXIS 88 (1914).

    Proper boundary evidence. —

    Calls and descriptions of a survey made of a coterminous tract, by the same surveyor about the same time, is proper evidence upon question of boundary unless plainly irrelevant, although the grant issued thereon was to a stranger. Reusens v. Lawson, 91 Va. 226 , 21 S.E. 347 , 1895 Va. LEXIS 21 (1895) (see also Overton v. Davisson, 42 Va. (1 Gratt.) 211 (1844)).

    The record of a former proceeding may be given in evidence to show the authority of a commissioner to execute a deed. Smith v. Chapman, 51 Va. (10 Gratt.) 445, 1853 Va. LEXIS 63 (1853); Hitchcox v. Rawson, 55 Va. (14 Gratt.) 422, 55 Va. (14 Gratt.) 526, 1858 Va. LEXIS 40 (1858).

    Record of another action between different parties is not admissible. —

    The record of another action of ejectment between other parties not in privity with either party to the present suit, is not admissible as evidence of the boundaries or location of the land in controversy. Stinchcomb v. Marsh, 56 Va. (15 Gratt.) 202, 1858 Va. LEXIS 3 (1858); Reusens v. Lawson, 100 Va. 143 , 40 S.E. 616 , 1902 Va. LEXIS 9 (1902).

    Equitable title is not sufficient to support an action of ejectment. Dillard v. Jeffries, 118 Va. 81 , 86 S.E. 844 , 1915 Va. LEXIS 126 (1915); Davis v. Bostic, 125 Va. 698 , 100 S.E. 463 , 1919 Va. LEXIS 58 (1919).

    § 8.01-133. Who shall be defendants; when and how landlord may defend.

    The person actually occupying the premises and any person claiming title thereto or claiming any interest therein adversely to the plaintiff may also, at the discretion of the plaintiff, be named defendants in the action. If there be no person actually occupying the premises adversely to the plaintiff, then the action must be against some person exercising ownership thereon or claiming title thereto or some interest therein at the commencement of suit. If a lessee be made defendant at the suit of a party claiming against the title of his landlord such landlord may appear and be made a defendant with or in place of his lessee.

    History. Code 1950, § 8-800; 1954, c. 333; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arbitration and Award, § 11.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Defendants where no person actually occupying premises. —

    Where there is no person actually occupying the disputed property when an action for ejectment was initiated, the action must be brought against “some person,” but not every person, exercising ownership or claiming title to or an interest in the property. Providence Properties, Inc. v. United Va. Bank/Seaboard Nat'l, 219 Va. 735 , 251 S.E.2d 474, 1979 Va. LEXIS 164 (1979).

    Ejectment remedy inappropriate to prosecute inverse condemnation claim against Commonwealth. —

    Given the nature of the action of ejectment, and the entitlement of the successful claimant to be put into possession of the disputed land, the remedy is inappropriate and unsuitable as a vehicle to prosecute an inverse condemnation claim against the Commonwealth. Sheffield v. Department of Hwys. & Transp., 240 Va. 332 , 397 S.E.2d 802, 7 Va. Law Rep. 736, 1990 Va. LEXIS 132 (1990).

    II.Decisions Under Prior Law.

    Editor’s note.

    Effect of section. —

    This section does not alter the rule that ejectment cannot be maintained by a plaintiff in possession of the land. The object of the action is to try the possessory title to corporeal hereditaments, and to recover the possession thereof. The effect of the section is simply to permit a plaintiff in his discretion, to join as defendants with the occupant any person claiming title thereto or an interest therein adversely to the plaintiff. Steinman v. Vicars, 99 Va. 595 , 39 S.E. 227 , 1901 Va. LEXIS 84 (1901).

    Proper remedy when neither party in possession. —

    The proper remedy is by an action of ejectment, when the owner holds the legal title, but has not actual possession, and another asserts an adverse claim to the land, but has not actual possession of it. Stearns v. Harman, 80 Va. 48 , 1885 Va. LEXIS 39 (1885).

    Ejectment may be properly brought against persons who have made entries and surveys of any part of the land in controversy, and are setting up claims to it, though not in occupation of it at the time suit is brought. Harvey v. Tyler, 69 U.S. 328, 17 L. Ed. 871, 1864 U.S. LEXIS 433 (1865).

    One who has had land surveyed and regularly paid taxes on it and claims to own it may be made defendant to an action of ejectment when no one is in actual occupation. Lynchburg Cotton Mill v. Rives, 112 Va. 137 , 70 S.E. 542 , 1911 Va. LEXIS 63 (1911).

    When occupant is necessary defendant. —

    This section permits the plaintiff to join with the occupant as defendants any other persons claiming title to the land. It may be conceded that the actual occupant is always a necessary party defendant to an action of ejectment in the sense that another defendant may by timely and proper procedure compel the plaintiff to bring the occupant before the court. The presence of the occupant, however, is not essential to the jurisdiction of the court, and if the claimant of the premises who is sued does not appropriately raise the point, and defends the action upon the merits, he is bound by the judgment. Matoaka Coal Corp. v. Clinch Valley Mining Corp., 121 Va. 522 , 93 S.E. 799 , 1917 Va. LEXIS 55 (1917).

    Who is an occupant of premises. —

    One operating mines under a contract with a lessee which gave him exclusive possession thereof for the time being, but whose possession was not exclusive of and was subordinate to the possession of the entire tract by the lessee, is not the party actually occupying the premises, as those terms are used in this section. Matoaka Coal Corp. v. Clinch Valley Mining Corp., 121 Va. 522 , 93 S.E. 799 , 1917 Va. LEXIS 55 (1917).

    Meaning of “lessee.” —

    The term “lessee,” is used, not so much to define an estate as to express the relation existing where one person holds under and in subordination to the title of another. Hanks v. Price, 73 Va. (32 Gratt.) 107, 1879 Va. LEXIS 50 (1879).

    Right of landlord to defend. —

    In an action of ejectment, brought against the person in possession, the landlord of such person may come in and be allowed to defend the action under the statute whether the actual relation of lessor and lessee exists between them or not. This will be permitted even where the plaintiff and the defendant in possession have submitted the matters between them to arbitration, an award made in favor of the plaintiff, and a rule awarded against the defendant in possession to show cause why the award should not be entered as the judgment of the court against him. Hanks v. Price, 73 Va. (32 Gratt.) 107, 1879 Va. LEXIS 50 (1879).

    Effect when husband sued and legal title in wife. —

    Where a husband who was in possession merely by sufferance, his wife holding the legal title, was sued in ejectment, the wife not being a party to the suit, it was held that her rights were not affected and that she could convey them to a purchaser, innocent or otherwise. The husband also could acquire a life estate by her death and would not be estopped and was entitled to have the judgment by default against him opened. But where the wife’s deed was not filed for recordation until long after such judgment, she is not entitled to an order restraining execution of the judgment, although she is entitled to have the judgment opened and be allowed to defend. King v. Davis, 137 F. 222, 1905 U.S. App. LEXIS 5219 (C.C.D. Va. 1905), aff'd, Blankenship v. King, 157 F. 676, 1906 U.S. App. LEXIS 4265 (4th Cir. 1906).

    CIRCUIT COURT OPINIONS

    Joinder of trustees and deed of trust beneficiary not required. —

    Landowner was not required to include trustees and the beneficiary of a deed of trust as necessary parties to the landowner’s ejectment action against a neighbor because the deed of trust was a mere lien, so the landowner could pursue the suit in the landowner’s own name and had discretion to join others claiming adverse interests in the property, and the deed of trust did not defeat the action. Fisher v. Surratt, 92 Va. Cir. 228, 2015 Va. Cir. LEXIS 203 (Augusta County Dec. 8, 2015).

    § 8.01-134. How action commenced and prosecuted.

    The action shall be commenced and prosecuted as other actions at law. The name of the real claimant shall be inserted as plaintiff, and all the provisions of law concerning a lessor of a plaintiff shall apply to such plaintiff.

    History. Code 1950, § 8-801; 1977, c. 617.

    CASE NOTES

    Form of action. —

    Ejectment was a common-law action designed to try title to land and by statute it continues to be a law action. Seoane v. Drug Emporium, Inc., 249 Va. 469 , 457 S.E.2d 93, 1995 Va. LEXIS 66 (1995).

    § 8.01-135. What is to be stated in motion for judgment.

    It shall be sufficient for the plaintiff to aver in his motion for judgment that on some day specified therein, which shall be after his title accrued, he was possessed of the premises claimed, and, being so possessed thereof, the defendant afterwards, on some day likewise specified, entered into such premises or exercised acts of ownership thereon or claimed title thereto or some interest therein, to the damage of the plaintiff in such sum as he shall state in his motion for judgment.

    History. Code 1950, § 8-802; 1954, c. 333; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 20.

    § 8.01-136. How premises described.

    The premises claimed shall be described in the motion for judgment with convenient certainty, so that, from such description, with the aid of information derived from the plaintiff, possession thereof may be delivered.

    History. Code 1950, § 8-803; 1954, c. 333; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 21.

    CASE NOTES

    Editor’s note.

    The object of the description of lands in a motion is to so identify them that the sheriff may give possession. It is not necessary that the sheriff should be able to tell from an inspection of the record of what lands he is to give possession. Howdashell v. Krenning, 103 Va. 30 , 48 S.E. 491 , 1904 Va. LEXIS 4 (1904).

    Defective description. —

    A motion in ejectment, which describes the land as a part of a larger tract owned by plaintiff, near certain creeks which have no public notoriety, is defective, and may be demurred to. Hitchcox v. Rawson, 55 Va. (14 Gratt.) 422, 55 Va. (14 Gratt.) 526, 1858 Va. LEXIS 40 (1858).

    Effect of verdict for plaintiff for land insufficiently described in motion. —

    A verdict which finds for the plaintiff the land insufficiently described in the motion is too vague. There is no more certainty and precision in the verdict than there is in the motion, and the defect in the latter is not cured by the former. Hitchcox v. Rawson, 55 Va. (14 Gratt.) 422, 55 Va. (14 Gratt.) 526, 1858 Va. LEXIS 40 (1858).

    Where the motion sufficiently describes the premises, a general finding for the plaintiff of the lands described is sufficiently certain. Messick v. Thomas, 84 Va. 891 , 6 S.E. 482 , 1888 Va. LEXIS 161 (1888).

    Effect of verdict for whole of land when defendant claims only part. —

    Where the defendant claimed only part of the land, a verdict for the plaintiff for the whole of the land described in the motion is sufficiently certain and does not injure the defendant. Messick v. Thomas, 84 Va. 891 , 6 S.E. 482 , 1888 Va. LEXIS 161 (1888).

    Verdict held correct when a variance between the verdict and motion. —

    The quantity and boundaries of the land described in a motion and in the verdict varied from each other. But the verdict found that the land therein described was the tenement mentioned in the declaration. It was to be presumed that the description given in a motion was a mistaken description, and that the land recovered by the verdict was the land demanded. Koiner v. Rankin, 52 Va. (11 Gratt.) 420, 1854 Va. LEXIS 32 (1854).

    Where a motion described the land in controversy as lying north of a road, and the verdict as south of that road, the description in other particulars being the same, the variance was held immaterial and the description in the motion must be presumed to be mistaken. Benn v. Hatcher, 81 Va. 25 , 1885 Va. LEXIS 6 (1885).

    § 8.01-137. Plaintiff to state how he claims.

    The plaintiff shall also state whether he claims in fee or for his life, or the life of another, or for years, specifying such lives or the duration of such term, and when he claims an undivided share or interest he shall state the same.

    History. Code 1950, § 8-804; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Cotenancy, § 43.

    CASE NOTES

    Standing to maintain action. —

    The action of ejectment may be maintained by one who has an interest in and a right to recover possession of the premises, or a share, interest, or portion thereof. Brown v. Haley, 233 Va. 210 , 355 S.E.2d 563, 3 Va. Law Rep. 2286, 1987 Va. LEXIS 186 (1987).

    Proof. —

    The action of ejectment is concerned only with the ownership rights of the plaintiff, and the proof necessary to support the action consists of the documents which vest title in the owner and any other evidence related to the issue of title. Brown v. Haley, 233 Va. 210 , 355 S.E.2d 563, 3 Va. Law Rep. 2286, 1987 Va. LEXIS 186 (1987).

    Verdict must specify plaintiff’s share or interest. —

    A verdict for the plaintiff in an action for ejectment must specify the share or interest of the plaintiff, whether in the whole or a part of the premises claimed, and the estate of the plaintiff, whether in fee, for life, or for a term of years. Brown v. Haley, 233 Va. 210 , 355 S.E.2d 563, 3 Va. Law Rep. 2286, 1987 Va. LEXIS 186 (1987).

    Sufficient allegation of joint tenancy. —

    Where a motion alleges that, on a day certain before bringing the action, plaintiffs were possessed, “each in fee simple absolute, of an undivided share or interest in” the land, and the action “is for the whole land so claimed, and not for any part or parcel” thereof, the motion is sufficient. Roach v. Blakey, 89 Va. 767 , 17 S.E. 228 , 1893 Va. LEXIS 102 (1893) (decided under prior law).

    § 8.01-138. There may be several counts and several plaintiffs.

    The motion for judgment may contain several counts, and several parties may be named as plaintiffs jointly in one count and separately in others.

    History. Code 1950, § 8-805; 1954, c. 333; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 15.

    CASE NOTES

    Amendment in pursuance of this section is not a new action. —

    When joint plaintiffs amended their motion so that in some counts they were joint and in some counts separate, it was not considered the commencement of a new cause of action. Holmes v. Grabeel, 81 F. 145, 1896 U.S. App. LEXIS 3056 (C.C.D. Va. 1896) (decided under prior law; “this section” refers to former provisions).

    § 8.01-139. What proof by plaintiff is sufficient.

    The consent rule, formerly used, remains abolished. The plaintiff need not prove an actual entry on, or possession of, the premises demanded, or receipt of any profits thereof, or any lease, entry, or ouster, except as hereinafter provided. But it shall be sufficient for him to show a right to the possession of the premises at the time of the commencement of the suit.

    History. Code 1950, § 8-809; 1977, c. 617.

    Cross references.

    As to what interest and right plaintiff must have to bring action, see § 8.01-132 .

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 2.

    CASE NOTES

    Defendant’s possession presumed lawful. —

    Since the plaintiff must recover on the strength of his own title the defendant’s possession will be presumed lawful until the contrary is shown. Virginia Coal & Iron Co. v. Keystone Coal & Iron Co., 101 Va. 723 , 45 S.E. 291 , 1903 Va. LEXIS 79 (1903) (decided under prior law).

    § 8.01-140. Effect of reservation in deed; burden of proof.

    In any action, suit or other judicial proceeding involving the title to land embraced in the exterior boundaries of any patent, deed or other writing, which reserves one or more parcels of land from the operation of such patent, deed or other writing, if there be no claim made by a party to the proceedings that the land in controversy, or any part thereof, lies within such reservation, such patent, deed or other writing shall be construed, and shall have the same effect, as if it contained no such reservation; and if any party to such proceeding claims that the land in controversy, or any part thereof, lies within such reservation, the burden shall be upon him to prove the fact, and all land not shown by a preponderance of the evidence to lie within such reservation shall be deemed to lie without the same.

    This section shall apply in cases involving the right to the proceeds of any such land when condemned or sold, as well as in cases where the title to land is directly involved, and shall apply in any case in which the title to any part of the land, or its proceeds, but for this section, would or might be in this Commonwealth.

    History. Code 1950, § 8-810; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 31.

    CASE NOTES

    Editor’s note.

    When section applicable. —

    This section does not apply in favor of a claimant in condemnation proceedings. It is clear from the wording of the statute that it was not intended to apply in all controversies over the title to land, but only in the cases expressly mentioned. United States v. Grogg, 9 F.2d 424, 1925 U.S. Dist. LEXIS 1350 (D. Va. 1925).

    Liberal construction. —

    Although this section is a remedial statute and entitled to a liberal construction, such a construction should stop far short of carrying the statute to purposes and objects entirely beyond those mentioned in it. United States v. Grogg, 9 F.2d 424, 1925 U.S. Dist. LEXIS 1350 (D. Va. 1925).

    Burden on defendant of proving land within reservation. —

    The practical effect of this section is to place upon the defendant the burden of proving that the land in controversy lies within the limits of the reservation. Radford Veneer Corp. v. Jones, 143 Va. 124 , 129 S.E. 260 , 1925 Va. LEXIS 253 (1925); Sutherland v. Gent, 116 Va. 783 , 82 S.E. 713 , 1914 Va. LEXIS 88 (1914).

    § 8.01-141. When action by cotenants, etc., against cotenants, what plaintiff to prove.

    If the action be by one or more tenants in common, joint tenants or coparceners against their cotenants, the plaintiff shall be bound to prove actual ouster or some other act amounting to total denial of the plaintiff’s right as cotenant.

    History. Code 1950, § 8-811; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Cotenancy, §§ 34, 43.

    CASE NOTES

    Nature of possession needed to constitute adverse possession. —

    The possession of one joint tenant, tenant in common, or coparcener is prima facie the possession of all the other cotenants, and the mere possession of the one will not be taken to be adverse to the title and possession of the other. Yet if the defendant prove actual ouster or other notorious act or acts, amounting to a total denial of the plaintiff’s rights as cotenant, and of such a character as to afford direct or presumptive proof that the other cotenants or plaintiffs had had knowledge of the claim of exclusive ownership thus set up and held by the defendants, or those under whom they claim, such possession of the land is held continuously and uninterruptedly under such circumstances under color of title for the length of time prescribed by law, constitutes adverse possession, and will ripen into a good and sufficient title in the defendants. Stonestreet v. Doyle, 75 Va. 356 , 1881 Va. LEXIS 19 (1881) (decided under prior law).

    Silent possession insufficient. —

    A silent possession by a cotenant, unaccompanied by acts amounting to an ouster, or giving notice of an adverse claim cannot be construed into adverse possession. Saunders v. Terry, 116 Va. 495 , 82 S.E. 68 , 1914 Va. LEXIS 56 (1914) (decided under prior law).

    § 8.01-142. Verdict when action against several defendants.

    If the action be against several defendants, and a joint possession of all be proved, and the plaintiff be entitled to a verdict, it shall be against all, whether they pleaded separately or jointly.

    History. Code 1950, § 8-812; 1977, c. 617.

    § 8.01-143. When there may be several judgments against defendants.

    If the action be against several defendants, and it appear on the trial that any of them occupy distinct parcels in severalty or jointly, and that other defendants possess other parcels in severalty or jointly, the plaintiff may recover several judgments against them, for the parcels so held by one or more of the defendants, separately from others.

    History. Code 1950, § 8-813; 1977, c. 617.

    § 8.01-144. Recovery of part of premises claimed.

    The plaintiff may recover any specific or any undivided part or share of the premises, though it be less than he claimed in the motion for judgment.

    History. Code 1950, § 8-814; 1954, c. 333; 1977, c. 617.

    § 8.01-145. When possession of part not possession of whole.

    In a controversy affecting real estate, possession of part shall not be construed as possession of the whole when an actual adverse possession can be proved.

    History. Code 1950, § 8-815; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Adverse Possession, §§ 8, 29.

    CASE NOTES

    This statute was not passed merely for the protection of squatters, and must have been intended to embrace the case of an actual possession of the rightful owners beyond, and to the adverse claimant within, the limits of the part in controversy. Taylor v. Burnsides, 42 Va. (1 Gratt.) 165, 1844 Va. LEXIS 26 (1844) (see Stull v. Rich Patch Iron Co., 92 Va. 253 , 23 S.E. 293 (1895) (decided under prior law; “this statute” refers to former provisions)).

    § 8.01-146. When vendee, etc., entitled to conveyance of legal title, vendor cannot recover.

    A vendor, or any claiming under him, shall not, at law any more than in equity, recover against a vendee, or those claiming under him, lands sold by such vendor to such vendee, when there is a writing, stating the purchase and the terms thereof, signed by the vendor or his agent and there has been such payment or performance of what was contracted to be paid or performed on the part of the vendee, as would in equity entitle him, or those claiming under him, to a conveyance of the legal title of such land from the vendor, or those claiming under him, without condition.

    History. Code 1950, § 8-816; 1977, c. 617.

    Cross references.

    As to right of defendant to resort to equity, see § 8.01-148 .

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 30.

    CASE NOTES

    Editor’s note.

    The purpose of the section was to prevent oppression by one having mere legal title and to obviate the necessity for a jury in equity to establish a perfect defense. Until a statute was passed to remedy the evil, a vendee in possession, who had paid every dollar of his purchase money, and had written evidence of his contract, was liable to be turned out of possession at any time by his vendor upon the mere legal title, and was at least compelled to make his defense in a court of equity. And the same rule prevailed to a great extent with respect to mortgages and deeds of trust, which had been satisfied. Suttle v. Richmond, F. & P.R.R., 76 Va. 284 , 1882 Va. LEXIS 31 (1882).

    This section is dictated by a restrictive and not by a general policy. Virginia Iron, Coal & Coke Co. v. Cranes' Nest Coal & Coke Co., 102 Va. 405 , 46 S.E. 393 , 1904 Va. LEXIS 85 (1904).

    This section applies to the action of unlawful detainer as well as ejectment. Dobson v. Culpepper, 64 Va. (23 Gratt.) 352, 1873 Va. LEXIS 41 (1873).

    Written contract prerequisite. —

    Although a defendant in ejectment may be clothed with a perfect equitable title, he cannot avail himself thereof in ejectment unless he can bring himself within the terms of the section, requiring a contract in writing. Jennings v. Gravely, 92 Va. 377 , 23 S.E. 763 , 1895 Va. LEXIS 127 (1895).

    Writing need not be produced in all cases. —

    The section does not admit of the construction that the writing must be produced in all cases, but that, although evidence of a parol contract is inadmissible, the best possible evidence of the required writing may be admitted. The writing must have been executed, but it may be established by pleadings in a court of record, and by reference in the record to a contract as a document filed in the court. Clinchfield Coal Corp. v. Steinman, 223 F. 743, 1915 U.S. App. LEXIS 1790 (4th Cir. 1915).

    Contract must also be performed. —

    In order to rely on this section, the defendant must show not only the written contract of sale setting out the terms but also his own performance of the contract. Dobson v. Culpepper, 64 Va. (23 Gratt.) 352, 1873 Va. LEXIS 41 (1873).

    Defendant may resort to equity to enjoin the enforcement of a judgment rendered against him in an action of ejectment even though the equitable defense might, under this section, have been proved in the action of ejectment. Withrow v. Porter, 131 Va. 623 , 109 S.E. 441 , 1921 Va. LEXIS 52 (1921).

    Equitable estoppel cannot be set up as a defense to an action of ejectment. Casselman v. Bialas, 112 Va. 57 , 70 S.E. 479 , 1911 Va. LEXIS 52 (1911); Suttle v. Richmond, F. & P.R.R., 76 Va. 284 , 1882 Va. LEXIS 31 (1882).

    The equitable defense under this section is limited to mortgages and deeds of trust, where the mortgage money has been fully paid, or the trust completely performed; or to sales, where the vendee has paid all the purchase money and performed everything incumbent on him, so as to entitle him to a specific execution on the contract in equity, and a conveyance of the legal title, without any condition proper in equity to be on him imposed. It must be a sale, and not a partnership in the acquisition of the land, and the terms of the contract must be plain. Davis v. Teays, 44 Va. (3 Gratt.) 283, 1846 Va. LEXIS 54 (1846).

    § 8.01-147. When mortgagee or trustee not to recover.

    The payment of the whole sum, or the performance of the whole duty, or the accomplishment of the whole purpose, which any mortgage or deed of trust may have been made to secure or effect, shall prevent the grantee, or his heirs, from recovering at law, by virtue of such mortgage or deed of trust, property thereby conveyed, whenever the defendant would in equity be entitled to a decree, revesting the legal title in him without condition.

    History. Code 1950, § 8-817; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, §§ 12, 30.

    CASE NOTES

    Editor’s note.

    Grantor may bring action. —

    Where a deed of trust by a wife was satisfied and reconveyance made to the husband, it was held under this section that neither the trustee nor the husband should bring ejectment but that the wife was the proper party. The effect of the section is to prevent the trustee from bringing ejectment and to authorize the grantor to maintain such an action. Lynchburg Cotton Mill v. Rives, 112 Va. 137 , 70 S.E. 542 , 1911 Va. LEXIS 63 (1911).

    Purchaser from trust. —

    Where land was conveyed in trust to secure specific debts and afterwards conveyed outright, the purchaser takes good title subject to the trust, and when that is satisfied is entitled to the benefit of this section, though the trustee has not conveyed it to him. Hale v. Horne, 62 Va. (21 Gratt.) 112, 1871 Va. LEXIS 75 (1871).

    § 8.01-148. Right of defendant to resort to equity not affected.

    Whether the defendant shall or shall not make or attempt a defense under §§ 8.01-146 and 8.01-147 , he shall not be precluded from resorting to equity for any relief to which he would have been entitled if such sections had not been enacted.

    History. Code 1950, § 8-818; 1954, c. 333; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 30.

    CASE NOTES

    Effect of this section. —

    If the equitable matter on which a party relies to obtain an injunction against the enforcement of a judgment in ejectment against him could not have been shown in that action under §§ 8.01-146 and 8.01-147 , to offer it as a defense in that action would have been futile. If, on the other hand, it was such a defense, then under the express terms of this section, whether defendant does or does not attempt such equitable defense, he is not precluded from resorting to equity. Withrow v. Porter, 131 Va. 623 , 109 S.E. 441 , 1921 Va. LEXIS 52 (1921) (decided under corresponding provisions of former law).

    § 8.01-149. Verdict when jury finds for plaintiffs or any of them.

    If the jury be of opinion for the plaintiffs, or any of them, the verdict shall be for the plaintiffs, or such of them as appear to have right to the possession of the premises, or any part thereof, and against such of the defendants as were in possession thereof or claimed title thereto at the commencement of the action.

    History. Code 1950, § 8-819; 1977, c. 617.

    Cross references.

    As to recovery of part of premises claimed, see § 8.01-144 .

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, §§ 43, 44.

    CASE NOTES

    Sufficient compliance. —

    A finding for the plaintiff on the “remaining one third of the several tracts of land claimed as aforesaid by the defendants, and of which two thirds have been found for them,” was held a sufficient compliance with a former version of this section. Collins v. Riley, 104 U.S. 322, 26 L. Ed. 752, 1881 U.S. LEXIS 2006 (1881) (decided under prior law).

    § 8.01-150. Verdict when any plaintiff has no right.

    When any plaintiff appears to have no such right, the verdict as to such plaintiff shall be for the defendants.

    History. Code 1950, § 8-820; 1977, c. 617.

    § 8.01-151. How verdict to specify premises recovered.

    When the right of the plaintiff is proved to all the premises claimed, the verdict shall be for the premises generally as specified in the motion for judgment, but if it be proved to only a part or share of the premises, the verdict shall specify such part particularly as the same is proved, and with the same certainty of description as is required in the motion for judgment.

    History. Code 1950, § 8-821; 1954, c. 333; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 46.

    CASE NOTES

    Editor’s note.

    This section is mandatory and it is reversible error to render judgment on a verdict that fails to comply with its requirements. Grizzle v. Davis, 119 Va. 567 , 89 S.E. 870 , 1916 Va. LEXIS 129 (1916) (see Smith v. Bailey, 141 Va. 757 , 127 S.E. 89 (1925)).

    Plaintiff put on terms or new trial granted if verdict excessive. —

    If the verdict of the jury, in an action of ejectment, finds for the plaintiff more land than he is entitled to recover the courts shall put him on terms to release the excess by proper description, or else grant a new trial. Fry v. Stowers, 98 Va. 417 , 36 S.E. 482 , 1900 Va. LEXIS 58 (1900).

    § 8.01-152. How verdict to specify undivided interest or share.

    If the verdict be for an undivided share or interest in the premises claimed, it shall specify the same, and if for an undivided share or interest of a part of the premises, it shall specify such share or interest, and describe such part as before required.

    History. Code 1950, § 8-822; 1977, c. 617.

    CASE NOTES

    One joint tenant cannot recover the interest of all as sole plaintiff. Therefore his undivided interest must be clearly designated. Marshall v. Palmer, 91 Va. 344 , 21 S.E. 672 , 1895 Va. LEXIS 31 (1895) (decided under prior provisions) (see also Nye v. Lovitt, 92 Va. 710 , 24 S.E. 345 (1896)).

    § 8.01-153. Verdict to specify estate of plaintiff.

    The verdict shall also specify the estate found in the plaintiff, whether it be in fee or for life, stating for whose life, or whether it be a term of years, and specifying the duration of such term.

    History. Code 1950, § 8-823; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 47.

    CASE NOTES

    Editor’s note.

    Sufficient verdict. —

    Where the motion stated that plaintiff held title in fee simple to lands, a verdict finding the defendant guilty “in manner and form as stated in the motion,” was held a sufficient description of the estate to which the plaintiff was entitled. Hawley v. Twyman, 65 Va. (24 Gratt.) 516, 1874 Va. LEXIS 30 (1874).

    Defective verdict. —

    A verdict: “We, the jury, find for the plaintiff,” is fatally defective in that it fails to specify the estate found in the plaintiff as required by this section. White v. Lee, 144 Va. 523 , 132 S.E. 307 , 1926 Va. LEXIS 268 (1926).

    Action for use of lands for uncertain and indefinite period. An action of ejectment does not lie to recover the mere use of unemployed lands for an uncertain and indefinite period under this section. King v. Norfolk & W. Ry., 99 Va. 625 , 39 S.E. 701 , 1901 Va. LEXIS 89 (1901).

    § 8.01-154. When right of plaintiff expires before trial, what judgment entered.

    If the right or title of a plaintiff in ejectment expire after the commencement of the suit, but before trial, the verdict shall be according to the fact, and judgment shall be entered for his damages sustained from the withholding of the premises by the defendant, and as to the premises claimed, the judgment shall be for the defendant.

    History. Code 1950, § 8-824; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, §§ 6, 26.

    CASE NOTES

    Right to recover at commencement of suit is all required by the statute. When several plaintiffs after suit brought aliened their interest in the land, it was held that such alienation cannot prevent their recovery for benefit of the alienee. Bolling v. Teel, 76 Va. 487 , 1882 Va. LEXIS 53 (1882) (decided under prior law).

    § 8.01-155. How judgment for plaintiff entered.

    The judgment for the plaintiff shall be, that he recover the possession of the premises, according to the verdict of the jury, if there be a verdict, or if the judgment be by default, or on demurrer, according to the description thereof in the motion for judgment.

    History. Code 1950, § 8-825; 1954, c. 333; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 49.

    § 8.01-156. Authority of sheriffs, etc., to store and sell personal property removed from premises; recovery of possession by owner; disposition or sale.

    In any county or city, when personal property is removed from premises pursuant to an action of unlawful detainer or ejectment, or pursuant to any other action in which personal property is removed from premises in order to restore such premises to the person entitled thereto, the sheriff shall oversee the removal of such personal property and it shall be placed in a storage area designated by the governing body of the county or city if such an area has been so designated, or, in the case of a manufactured home, at the request of the owner of the real property, to be placed into a storage area designated by the owner of the real property which may be the manufactured home lot or other location within the manufactured home park, unless the owner of such personal property then and there removes it from the public way. The sheriff and the owner of the real property shall not have any liability for the loss of any such manufactured home remaining on the manufactured home lot, nor shall they have any liability for the loss of any removed personal property.

    The owner, before obtaining possession of such personal property so placed in a storage area shall pay to the parties entitled thereto the reasonable and necessary costs incidental to such removal and storage. Should such owner fail or refuse to pay such costs within 30 days from the date of placing the property in storage, the sheriff shall, after due notice to the owner and holders of liens of record, dispose of the property by publicly advertised public sale. The proceeds from such sale shall be used to pay all costs of removal, storage, and sale, all fees and liens, and the balance of such funds shall be paid to the person entitled thereto. Should the cost of removal and storage exceed the proceeds realized from such sale the county or city shall reimburse the sheriff for such excess, except that any such excess costs related to the disposal of a manufactured home shall be paid by the owner of the real property from which the manufactured home was removed. The sheriff, in his discretion, may refuse to remove or dispose of such manufactured home until the owner of the real property pays to the sheriff the estimated cost of such removal and disposition. Subsequent to disposition, the sheriff shall reimburse the owner to the extent the actual cost is less than the estimated cost, or shall request additional payment to the extent the actual cost exceeds the estimated cost.

    History. Code 1950, § 8-825.1; 1964, c. 387; 1977, c. 617; 1992, c. 454; 1993, c. 16; 2005, c. 791; 2006, c. 129.

    The 2005 amendments.

    The 2005 amendment by c. 791, in the first paragraph, substituted “at the request of the owner of the real property, to be placed into a storage area designated by the owner of the real property which may be” for “and with the consent of the lot owner, upon,” and inserted “or other location within the manufactured home park,” and inserted the last sentence; in the last paragraph, substituted “30” for “thirty,” inserted “except that any such excess costs related to the disposal of a manufactured home shall be paid by the owner of the real property from which the manufactured home was removed” at the end of the fourth sentence; and added the last two sentences.

    The 2006 amendments.

    The 2006 amendment by c. 129, in the first paragraph, substituted “oversee the removal of such personal property and it shall” for “cause such personal property to” in the first sentence and added the language beginning “nor shall they have any liability” at the end of the last sentence; and deleted “by the sheriff” following “storage area” in the first sentence of the last paragraph.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    Michie’s Jurisprudence.

    For related discussion, see 3C M.J. Commercial Law, § 95.

    § 8.01-157. Repealed by Acts 1990, c. 831, effective January 1, 1991.

    Cross references.

    As to the abolition of dower and curtesy, see § 64.2-301 .

    § 8.01-158. How claim of plaintiff for profits and damages assessed.

    If the plaintiff file with his motion for judgment a statement of the profits and other damages which he means to demand, and the jury find in his favor, they shall, at the same time, unless the court otherwise order, assess the damages for mesne profits of the land for any period not exceeding five years previously to the commencement of the suit until the verdict, and also the damages for any destruction or waste of the buildings or other property during the same time for which the defendant is chargeable.

    History. Code 1950, § 8-827; 1954, c. 333; 1977, c. 617.

    Cross references.

    For assessment of damages for improvements, see §§ 8.01-166 through 8.01-178 .

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 40.

    CASE NOTES

    When jury to ascertain damages. —

    Where the statements of profits and damages are filed with the motion, the jury sworn to try the issue in ejectment may at the same time make the required inquiries; or the inquiries may, if the court so order, be made by the same jury after verdict or by a new jury. Goodwyn v. Myers, 57 Va. (16 Gratt.) 336, 1862 Va. LEXIS 5 (1862) (decided under prior law).

    It is proper to charge interest upon rents and profits. Bolling v. Lersner, 67 Va. (26 Gratt.) 36, 1875 Va. LEXIS 2 (1875), dismissed, 91 U.S. 594, 23 L. Ed. 366, 1875 U.S. LEXIS 1414 (1876) (decided under prior law).

    § 8.01-159. When court to assess damages.

    If there be no issue of fact tried in the cause, and judgment is to be rendered for the plaintiff on demurrer, or otherwise, such damages shall be assessed by the court, unless either party shall move to have them assessed by a jury, or the court shall think proper to have them so assessed, in which case a jury shall be impaneled to assess them. If the defendant is in default the court shall proceed to render judgment and assess damages as provided in Rule of Court 3:19.

    History. Code 1950, § 8-828; 1954, c. 333; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 40.

    CASE NOTES

    When inquiry of damages proper. —

    An office judgment in an action of ejectment does not become final without the intervention of the court or a jury; but there ought, in every such case, to be an order for an inquiry of damages. James River & Kanawha Co. v. Lee, 57 Va. (16 Gratt.) 424 (1863); Smithson v. Briggs, 74 Va. (33 Gratt.) 180 (1880). The cases cited above were decided under, and refer to, corresponding former provisions .

    When inquiry unnecessary. —

    When the plaintiff did not file a statement of damages in ejectment and the defendant was in default, the court was authorized, under this section, at the term following the office judgment after default, or at any subsequent term, to enter judgment that plaintiff recover possession of the land sued for, and make such office judgment final, without setting the cause for inquiry at the next term. King v. Davis, 137 F. 222, 1905 U.S. App. LEXIS 5219 (C.C.D. Va. 1905), aff'd, Blankenship v. King, 157 F. 676, 1906 U.S. App. LEXIS 4265 (4th Cir. 1906) (decided under prior law).

    § 8.01-160. Defendant to give notice of claim for improvements.

    If the defendant intends to claim allowance for improvements made upon the premises by himself or those under whom he claims, he shall file with his pleading a statement of his claim therefor, in case judgment be rendered for the plaintiff.

    History. Code 1950, § 8-829; 1954, c. 333; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 41.

    CASE NOTES

    Editor’s note.

    Section only applies when decree or judgment against defendant. —

    In interpreting this section and § 8.01-166 , it is held that they apply only to actions of ejectment or to cases in which a judgment or decree is entered against the defendant for land. Wood v. Krebbs, 74 Va. (33 Gratt.) 685, 1880 Va. LEXIS 68 (1880); Effinger v. Hall, 81 Va. 94 , 1885 Va. LEXIS 14 (1885); Truslow v. Ball, 166 Va. 608 , 186 S.E. 71 , 1936 Va. LEXIS 223 (1936).

    Section does not apply in suits to enforce parol contracts to convey real estate. Truslow v. Ball, 166 Va. 608 , 186 S.E. 71 , 1936 Va. LEXIS 223 (1936).

    Nor to action by judgment creditor. —

    The provisions of this section have no application to a judgment creditor seeking to enforce his lien upon the land upon which the improvements have been made. Flanary v. Kane, 102 Va. 547 , 46 S.E. 312 , 1904 Va. LEXIS 101 (1904).

    § 8.01-161. How allowed.

    In such case, the damages of the plaintiff, and the allowance to the defendant for improvements, shall be estimated, and the balance ascertained, and judgment therefor rendered, as prescribed in Article 15 (§ 8.01-166 et seq.) of this chapter.

    History. Code 1950, § 8-830; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 40.

    CASE NOTES

    Same jury passes on claims for mesne profits, waste, and improvements. —

    In actions of ejectment if there is a claim by the plaintiff for mesne profits and damages for waste, and by defendant for improvements, both claims must be passed upon by the same jury. Goodwyn v. Myers, 57 Va. (16 Gratt.) 336, 1862 Va. LEXIS 5 (1862) (decided under prior law).

    § 8.01-162. Postponement of assessment and allowance.

    On the motion of either party, the court may order the assessment of such damages and allowance to be postponed until after the verdict on the title is recorded.

    History. Code 1950, § 8-831; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 40.

    § 8.01-163. Judgment to be conclusive.

    Any such judgment in an action of ejectment shall be conclusive as to the title or right of possession established in such action, upon the party against whom it is rendered, and against all persons claiming from, through, or under such party, by title accruing after the commencement of such action, except as hereinafter mentioned.

    History. Code 1950, § 8-832; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6B M.J. Ejectment, § 49.

    CASE NOTES

    The judgment referred to in this section is one on the merits. Payne v. Buena Vista Extract Co., 124 Va. 296 , 98 S.E. 34 , 1919 Va. LEXIS 126 (1919) (decided under prior law).

    Holding did not purport to, and could not, affect the rights of persons who were not parties or their successors in interest. See Page v. Luhring, 211 Va. 503 , 178 S.E.2d 527, 1971 Va. LEXIS 202 (1971) (decided under prior law).

    Landlord not bound by judgment against tenant. —

    When the tenant alone was sued in ejectment to recover land on which the tenant was in possession, and, before execution, the tenant removed and the landlord entered, neither the landlord nor a subsequent tenant could be considered as claiming through or under the former tenant who was sued. The landlord was therefore not bound by the judgment as an estoppel. King v. Davis, 137 F. 198, 1903 U.S. App. LEXIS 5453 (C.C.D. Va. 1903) (decided under prior law).

    § 8.01-164. Recovery of mesne profits, etc., not affected.

    Nothing in this chapter shall prevent the plaintiff from recovering mesne profits, or damages done to the premises, from any person other than the defendant, who may be liable to such action.

    History. Code 1950, § 8-834; 1977, c. 617.

    § 8.01-165. Writ of right, etc., abolished.

    No writ of right, writ of entry, or writ of formedon, shall be hereafter brought.

    History. Code 1950, § 8-835; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 19 M.J. Trial, § 11.

    Article 15. Improvements.

    § 8.01-166. How defendant may apply therefor, and have judgment suspended.

    Any defendant against whom a decree or judgment shall be rendered for land, when no assessment of damages has been made under Article 14 (§ 8.01-131 et seq.) of this chapter, may, at any time before the execution of the decree or judgment, present a pleading to the court rendering such decree or judgment, stating that he, or those under whom he claims while holding the premises under a title believed by him or them to have been good, have made permanent improvements thereon, and moving that he should have an allowance for the same which are over and above the value of the use and occupation of such land; and thereupon the court may, if satisfied of the probable truth of the allegation, suspend the execution of the judgment or decree, and impanel a jury to assess the damages of the plaintiff, and the allowances to the defendant for such improvements.

    History. Code 1950, § 8-842; 1977, c. 617.

    Cross references.

    As to defendant’s claim for improvements in action of ejectment, see § 8.01-160 .

    Michie’s Jurisprudence.

    For related discussion, see 3A M.J. Boundaries, § 28.

    CASE NOTES

    Editor’s note.

    Many of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    This section alters the common-law rule and allows, as a set-off to the plaintiff’s claim for rent and damages, compensation for permanent improvements made by defendant at a time when there was reason to believe the title good under which he was holding the premises, not exceeding, however, the increase of value to the same. Hollingsworth v. Funkhouser, 85 Va. 448 , 8 S.E. 592 , 1888 Va. LEXIS 54 (1888) (decided under prior law).

    It applies only to actions of ejectment or to cases in which a decree or judgment is rendered against a defendant for land. It does not apply to a suit for the specific enforcement of an alleged parol contract to convey land. Graeme v. Cullen, 64 Va. (23 Gratt.) 266, 1873 Va. LEXIS 37 (1873); Branham v. Artrip, 115 Va. 314 , 79 S.E. 390 , 1913 Va. LEXIS 37 (1913).

    It has no application to the case of a purchaser at a judicial sale, against whom a claim for the purchase money is asserted, and in whose favor there has been no decree of confirmation. Tyler v. Toms, 75 Va. 116 , 1880 Va. LEXIS 11 (1880) (decided under prior law).

    Nor to a judgment creditor seeking to enforce his lien upon the land upon which the improvements have been made. Flanary v. Kane, 102 Va. 547 , 46 S.E. 312 , 1904 Va. LEXIS 101 (1904) (decided under prior law).

    No allowance is made for improvements erected by one who is not a bona fide purchaser. Burton v. Mill, 78 Va. 468 (1884); Smith v. Woodward, 122 Va. 356 , 94 S.E. 916 (1918). The cases cited above were decided under prior law.

    Effect of being life tenant. —

    A party cannot be said to be acting in good faith in putting improvements on land when he knows that at best he has only a life estate in the land. Wright v. Johnson, 108 Va. 855 , 62 S.E. 948 , 1908 Va. LEXIS 106 (1908) (decided under prior law).

    Whenever there is a duty to inquiry, the party bound to inquire is affected with knowledge of all that would have been discovered had the party performed the duty. Richardson v. Parris, 246 Va. 203 , 435 S.E.2d 389, 10 Va. Law Rep. 238, 1993 Va. LEXIS 118 (1993).

    Inapplicable to one with notice of infirmity in his title. —

    Although this section permits a recovery for improvements when the one who made them mistakenly held the land “under a title believed by him . . . to have been good,” this section has no application to one who is not a bona fide purchaser, and a person with notice, actual or constructive, of infirmity in his title cannot recover for improvements. White v. Pleasants, 227 Va. 508 , 317 S.E.2d 489, 1984 Va. LEXIS 221 (1984).

    In order to be a bona fide purchaser and therefore qualify for protection under this section, the belief in the validity of the title must be founded on ignorance of fact, not ignorance of law. Richardson v. Parris, 246 Va. 203 , 435 S.E.2d 389, 10 Va. Law Rep. 238, 1993 Va. LEXIS 118 (1993).

    Effect of actual or constructive notice. —

    Under this section a person with notice, actual or constructive, of a defect in his title is not entitled, upon being dispossessed by the rightful owner, to recover compensation for permanent improvements made on the premises. Kian v. Kefalogiannis, 158 Va. 129 , 163 S.E. 535 , 1932 Va. LEXIS 247 (1932) (see Keister v. Cubine, 101 Va. 768 , 45 S.E. 285 (1903); Truslow v. Ball, 166 Va. 608 , 186 S.E. 71 (1936)).

    This section restricts recovery for improvements to one “holding the premises under a title believed by him . . . to be good.” This section has no application to one who is not a bona fide purchaser, and a person with notice, actual or constructive, of infirmity in his title cannot recover for improvements. Graeme v. Cullen, 64 Va. (23 Gratt.) 266, 1873 Va. LEXIS 37 (1873); Hurn v. Keller, 79 Va. 415 , 1884 Va. LEXIS 97 (1884); Smith v. Woodward, 122 Va. 356 , 94 S.E. 916 , 1918 Va. LEXIS 103 (1918).

    Means of notice with the duty of using those means, is equivalent to actual notice. Effinger v. Hall, 81 Va. 94 , 1885 Va. LEXIS 14 (1885) (decided under prior law).

    Effect of laches on part of plaintiff. —

    If the owner is guilty of gross laches in asserting his claim, after he is apprised of it, he will not be permitted to recover, except upon compensation. Walker v. Beauchler, 68 Va. (27 Gratt.) 511, 1876 Va. LEXIS 43 (1876); Wood v. Krebbs, 74 Va. (33 Gratt.) 685, 1880 Va. LEXIS 68 (1880).

    What constitutes permanent improvement. —

    Whether the work was done and the money expended with reference to the future betterment of the premises, or for future immediate advantage of the occupant is the consideration which should control. Cullop v. Leonard, 97 Va. 256 , 33 S.E. 611 , 1899 Va. LEXIS 33 (1899) (decided under prior law).

    Commercial fertilizers cannot be regarded as permanent improvements. Effinger v. Kenney, 92 Va. 245 , 23 S.E. 742 , 1895 Va. LEXIS 111 (1895) (see also Wright v. Johnson, 108 Va. 855 , 62 S.E. 948 (1908)).

    Recovery for improvements unavailable. —

    Where the insufficiency of the affidavit for the order of publication was apparent on the face of the record to be discovered by the subsequent purchaser or their agent before entry of the decree confirming the sale, the failure to recognize the facial insufficiency of the affidavit was ignorance of law, not ignorance of fact. Thus, because the subsequent purchaser had constructive notice of the title infirmity, they were not bona fide purchasers and were precluded from recovering for improvements. Richardson v. Parris, 246 Va. 203 , 435 S.E.2d 389, 10 Va. Law Rep. 238, 1993 Va. LEXIS 118 (1993).

    § 8.01-167. How damages of plaintiff assessed.

    The jury, in assessing such damages, either under this article or under Article 14 (§ 8.01-131 et seq.) of this chapter, shall determine the annual value of the premises during the time the defendant was in possession thereof, exclusive of the use by the tenant of the improvements thereon made by himself or those under whom he claims, and also the damages for waste or other injury to the premises committed by the defendant.

    History. Code 1950, § 8-843; 1977, c. 617.

    CASE NOTES

    What to be offset. —

    The clear annual value, exclusive of the improvements, of the premises during the time he was in possession, is estimated by the jury against the defendant. This value, and other damages, if any, in behalf of the plaintiff, and the allowance to the defendant for improvements, shall be offsets, one against the other. Wood v. Krebbs, 74 Va. (33 Gratt.) 685 (1880); Hollingsworth v. Funkhouser, 85 Va. 448 , 8 S.E. 592 (1888). The cases cited above were decided under prior law .

    Plaintiff’s remedy to recover damages in proceeding to establish boundaries to land. —

    For discussion of the remedy of plaintiff in a proceeding to establish boundaries to land under corresponding former provisions, see Brunswick Land Corp. v. Perkinson, 153 Va. 603 , 151 S.E. 138 , 1930 Va. LEXIS 256 (1930).

    § 8.01-168. For what time.

    The defendant shall not be liable for such annual value for any longer time than five years before the suit, or for damages for any such waste or other injury done before such five years, except when he claims for improvements as aforesaid.

    History. Code 1950, § 8-844; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 9B M.J. Improvements, § 15.

    § 8.01-169. How value of improvements determined in favor of defendant.

    If the jury shall be satisfied that the defendant, or those under whom he claims, made on the premises, at a time when there was reason to believe the title good under which he or they were holding the same, permanent and valuable improvements, they shall determine the value of such improvements as were so made before receipt by the person making the same of notice in writing of the title under which the plaintiff claims, not exceeding the amount actually expended in making them, and not exceeding the amount to which the value of the premises is actually increased thereby at the time of such determination.

    History. Code 1950, § 8-845; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 9B M.J. Improvements, § 14.

    CASE NOTES

    Proof of value. —

    Compensation can only be allowed upon clear and full proof of the amount to which the value of the premises is actually increased thereby at the time of the assessment. Hollingsworth v. Funkhouser, 85 Va. 448 , 8 S.E. 592 , 1888 Va. LEXIS 54 (1888) (decided under prior law).

    Purchaser cannot close eyes to record title. —

    To hold that a purchaser can close his eyes to his record title and recover for improvements on the theory that “there was reason to believe the title good” would be to set a premium on negligence and nullify our registry statutes. McDonald v. Rothgib, 112 Va. 749 , 72 S.E. 692 , 1911 Va. LEXIS 147 (1911) (decided under prior law).

    § 8.01-170. If allowance for improvements exceed damages, what to be done.

    If the sum determined for the improvements exceed the damages determined by the jury against the defendant as aforesaid, they shall then determine against him, for any time before such five years, the rents and profits accrued against, or damage for waste or other injury done by him, or those under whom he claims, so far as may be necessary to balance his claim for improvements, but in such case he shall not be liable for the excess, if any, of such rents and profits, or damages, beyond the value of the improvements.

    History. Code 1950, § 8-846; 1977, c. 617.

    CASE NOTES

    The defendant, as tenant in possession, is entitled to compensation for improvements made in excess of the benefits derived from the use and occupation of the land. Wood v. Krebbs, 74 Va. (33 Gratt.) 685, 1880 Va. LEXIS 68 (1880) (decided under prior law).

    Defendant was to be charged for the rents and profits of the land exclusive of his improvements, while he held it, and to be allowed a reasonable compensation for the permanent improvements he had made upon it, though this shall be in excess of the rents and profits. Walker v. Beauchler, 68 Va. (27 Gratt.) 511, 1876 Va. LEXIS 43 (1876) (decided under prior law).

    § 8.01-171. Verdict for balance, after offsetting damages against improvements.

    After offsetting the damages assessed for the plaintiff and the allowances to the defendant for improvements, if any, the jury shall find a verdict for the balance for the plaintiff or defendant, as the case may be, and judgment or decree shall be entered therefor according to the verdict.

    History. Code 1950, § 8-847; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 9B M.J. Improvements, § 24.

    § 8.01-172. Balance for defendant a lien on the land.

    Any such balance due to the defendant shall constitute a lien upon the land recovered by the plaintiff, until the same shall be paid.

    History. Code 1950, § 8-848; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 9B M.J. Improvements, § 15.

    § 8.01-173. How tenant for life, paying for improvements, reimbursed.

    If the plaintiff claim only an estate for life in the land recovered, and pay any sum allowed to the defendant for improvements, he, or his personal representative at the determination of his estate, may recover from the remainderman or reversioner, the value of such improvements as they then exist, not exceeding the amount so paid by him, and shall have a lien therefor on the premises, in like manner as if they had been mortgaged for the payment thereof, and may keep possession of such premises until the same be paid.

    History. Code 1950, § 8-849; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 9B M.J. Improvements, § 19.

    CASE NOTES

    When a life tenant makes improvements himself, they constitute no charge upon the land when it passes to the reversioner or remainderman, according to the general rule. Effinger v. Hall, 81 Va. 94 , 1885 Va. LEXIS 14 (1885) (decided under prior law).

    § 8.01-174. Exception as to mortgagees and trustees.

    Nothing in this article, nor anything concerning rents, profits, and improvements, in Article 14 (§ 8.01-131 et seq.) of this chapter, shall extend or apply to any suit brought by a mortgagee, or trustee in a deed of trust to secure creditors, his heirs, or assigns, against a mortgagor or grantor in such deed of trust, his heirs, or assigns, for the recovery of the mortgaged premises or of the land conveyed by such deed of trust.

    History. Code 1950, § 8-850; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 9B M.J. Improvements, § 18.

    § 8.01-175. When plaintiff may require his estate only to be valued; how determined; how he may elect to relinquish his title to defendant.

    1. When the defendant shall claim allowance for improvements, the plaintiff may, by an entry on the record, require that the value of his estate in the premises, without the improvements, shall also be ascertained.
    2. The value of the premises in such case shall be determined as it would have been at the time of the inquiry, if no such improvements had been made, and shall be ascertained in the manner hereinbefore provided for determining the value of improvements.
    3. The plaintiff in such case, if judgment is rendered for him, may at any time, enter on the record his election to relinquish his estate in the premises to the defendant at the value so ascertained under this section, and the defendant shall thenceforth hold all the estate that the plaintiff had therein at the commencement of the suit, provided he pay therefor such value, with interest, in the manner in which the court may direct.

    History. Code 1950, §§ 8-851, 8-852, 8-853; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 9B M.J. Improvements, § 16.

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under corresponding provisions of former law.

    Value of plaintiff’s estate ascertained as of same time as the improvement. —

    The value of the plaintiff’s estate in the premises without the improvements, is to be ascertained as at the time when the assessment of the value of the improvements was made. Goodwyn v. Myers, 57 Va. (16 Gratt.) 336, 1862 Va. LEXIS 5 (1862) (see also Corr v. Porter, 74 Va. (33 Gratt.) 278 (1880)).

    Estate to be valued by a different jury. —

    If defendant claims for improvements on the land, the plaintiff may at any time before a judgment is rendered on the assessment of the value of the improvements, though after the jury which tried the issue or passed upon the defendant’s claim for improvement has been discharged, require that the value of his estate in the premises, without the improvements, shall also be ascertained. This inquiry is to be made by another jury. Goodwyn v. Myers, 57 Va. (16 Gratt.) 336, 1862 Va. LEXIS 5 (1862).

    Where the plaintiff in the ejectment suit requires the value of his estate in the premises in controversy to be ascertained, the inquiry must be made by a different jury from that which tried the cause on its merits. Goodwyn v. Myers, 57 Va. (16 Gratt.) 336, 1862 Va. LEXIS 5 (1862); Corr v. Porter, 74 Va. (33 Gratt.) 278, 1880 Va. LEXIS 41 (1880).

    No objection to use of same jury can be made after verdict. —

    The same jury which tried the case on its merits was allowed, without objection from either side, to fix the value of the land, the rents and profits thereof, and the value of the improvements claimed by the defendant. It is too late after verdict to object to this action of the court. Corr v. Porter, 74 Va. (33 Gratt.) 278, 1880 Va. LEXIS 41 (1880).

    § 8.01-176. How payment of such value to be made by defendant; when land sold therefor.

    The payments shall be made to the plaintiff, or into court for his use, and the land shall be bound therefor, and if the defendant fail to make such payments within or at the times limited therefor respectively, the court may order the land to be sold and the proceeds applied to the payment of such value and interest, and the surplus, if any, to be paid to the defendant; but if the net proceeds be insufficient to satisfy such value and interest, the defendant shall not be bound for the deficiency.

    History. Code 1950, § 8-854; 1977, c. 617.

    § 8.01-177. When such value to be deemed real estate.

    If the party by or for whom the land is claimed in the suit be a person under a disability, such value shall be deemed to be real estate, and be disposed of as the court may consider proper for the benefit of the persons interested therein.

    History. Code 1950, § 8-855; 1977, c. 617.

    § 8.01-178. When and how defendant, if evicted, may recover from plaintiff amount paid.

    If the defendant or his heirs or assigns shall, after the premises are so relinquished to him, be evicted thereof by force of any better title than that of the original plaintiff, the person so evicted may recover from such plaintiff or his representative the amount so paid for the premises, as so much money had and received by such plaintiff in his lifetime for the use of such person, with lawful interest thereon from the time of such payment.

    History. Code 1950, § 8-856; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 17 M.J. Specific Performance, § 110.

    Article 15.1. Waste.

    § 8.01-178.1. Waste; who is liable.

    1. Any tenant of land or any person who has aliened land who commits any waste while he is in possession of such land, unless he has special license to do so, shall be liable for damages.
    2. Any tenant in common, joint tenant, or parcener who commits waste, shall be liable to his cotenants, jointly or severally, for damages.
    3. Any guardian or conservator who commits waste of the estate of his ward shall be liable to the ward, at the expiration of his guardianship or conservatorship, for damages.

    History. Code 1919, §§ 5506 through 5508; Code 1950, §§ 55-211 through 55-213; 1997, c. 801; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, recodified Title 55 as Title 55.1, effective October 1, 2019. As part of the recodification, former Chapter 12 (§ 55-211 et seq.) of Title 55 was recodified as Article 15.1 (§ 8.01-178.1 et seq.) of Chapter 3 of this title. Where appropriate, the historical citations to former sections have been added to corresponding new sections. For transition provisions, see §§ 55.1-100 . For tables of corresponding former and new sections, see the tables in Volume 10.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Cotenancy, §§ 19, 41.

    CASE NOTES

    I.Decided Under Prior Law.

    The remedy for waste given by this section is not exclusive, and the lower court erred in dismissing a suit to enjoin the lessee of land used as a filling station from removing a large oil tank from the premises. Roanoke Marble & Granite Co. v. Standard Gas & Oil Supply Co., 155 Va. 249 , 154 S.E. 518 , 1930 Va. LEXIS 162 (1930).

    Court of equity may prohibit waste. —

    Notwithstanding remedies available under this section and § 55-212, a court of equity, in a proper case, may grant an injunction to prohibit waste. Chosar Corp. v. Owens, 235 Va. 660 , 370 S.E.2d 305, 4 Va. Law Rep. 3189, 1988 Va. LEXIS 72 (1988).

    As to tenant for life under former statute, see Dejarnette v. Allen, 46 Va. (5 Gratt.) 499, 1849 Va. LEXIS 12 (1849).

    CIRCUIT COURT OPINIONS

    Distribution of marital property. —

    In a divorce case, a wife’s 50% share of marital property was reduced by $26,000 because she committed permissive waste under § 55-211 by allowing the property to deteriorate in the 17 years she had lived there; the house was remodeled and in good condition when she moved in. Although the wife had an interest in the value of the marital estate, she did not have an ownership interest in it, and the property was titled in her husband’s name. Bell v. Bell, 89 Va. Cir. 472, 2013 Va. Cir. LEXIS 2 (Roanoke County Jan. 30, 2013).

    In a divorce case, a court valued the marital property and a husband was permitted to convey one parcel of property to the wife; the wife’s 50% share included a $26,000 devaluation that occurred due to the wife’s commission of permissive waste on property that she occupied after the parties’ separation. The rest of the amount owed to the wife was reduced to a monetary judgment after the entry of a final divorce decree. Bell v. Bell, 89 Va. Cir. 472, 2013 Va. Cir. LEXIS 2 (Roanoke County Jan. 30, 2013).

    In a divorce case, a court decided to value the property currently, instead of using the date that the parties separated 17 years earlier, because passive appreciation had occurred; moreover, evidence was presented as to the dollar amount of the repairs needed due to the wife’s commission of permissive waste. Using the current valuation date instead of the date of separation allowed the court to consider all of the factors necessary to arrive at a fair and equitable monetary award. Bell v. Bell, 89 Va. Cir. 472, 2013 Va. Cir. LEXIS 2 (Roanoke County Jan. 30, 2013).

    § 8.01-178.2. Civil action for waste; double damages.

    Any person who is injured due to another person’s committing waste on his land may recover damages for such waste by initiating a civil action. If a jury finds that the waste was a result of wanton misconduct, judgment shall be for double the amount of damages assessed.

    History. Code 1919, § 5509; Code 1950, § 55-214; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    CASE NOTES

    I.Decided Under Prior Law.

    Wanton waste, double damage and its extent are jury questions. Kavanaugh v. Donovan, 186 Va. 85 , 41 S.E.2d 489, 1947 Va. LEXIS 131 (1947).

    And the jury should be instructed on the meaning of waste committed wantonly under this section, in order to be properly informed whether to punish the defendants for wanton acts, if any, by fixing double damages. Kavanaugh v. Donovan, 186 Va. 85 , 41 S.E.2d 489, 1947 Va. LEXIS 131 (1947).

    § 8.01-178.3. Waste for tenant to sell or remove manure from leased premises.

    If a tenant at will or for years, without a special license to do so, sells or otherwise removes manure made on such leased premises in the ordinary course of husbandry, consisting of (i) ashes leached or unleached; (ii) collections from the stables, barnyard, or cattle pens or other places on the leased premises; or (iii) composts formed by an admixture of any such manure with the soil or other substances, such removal shall be deemed waste for the purposes of the provisions of this article.

    History. Code 1919, § 5510; Code 1950, § 55-215; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    Michie’s Jurisprudence.

    For related discussion, see 20 M.J. Waste, § 3.

    § 8.01-178.4. Waste committed during pendency of action.

    If a defendant who is a tenant in possession of land in an action initiated pursuant to § 8.01-178.2 commits any waste on the land, the court may, on petition of the plaintiff alleging such waste, verified by oath, and after reasonable notice to the tenant, prohibit the tenant from committing further waste on the land during the pendency of the action. Violation of such order by the tenant after he has been served with a copy may be punished as contempt. The order shall not be effective until the plaintiff gives bond with sufficient surety as prescribed by the court, with condition to pay to the tenant, in case the plaintiff does not succeed in recovering or charging the land, such damages as may accrue to the tenant as a consequence of such order. If the plaintiff succeeds in recovering or charging the land, he may recover three times the amount of the damages assessed for such waste.

    History. Code 1919, § 5511; Code 1950, § 55-216; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    Michie’s Jurisprudence.

    For related discussion, see 20 M.J. Waste, §§ 4, 8.

    Article 16. Establishing Boundaries to Land.

    § 8.01-179. Motion for judgment to establish boundary lines.

    Any person having a subsisting interest in real estate and a right to its possession, or to the possession of some share, interest or portion thereof, may file a motion for judgment to ascertain and designate the true boundary line or lines to such real estate as to one or more of the coterminous landowners. Plaintiff in stating his interest shall conform to the requirements of § 8.01-137 , and shall describe with reasonable certainty such real estate and the boundary line or lines thereof which he seeks to establish.

    History. Code 1950, § 8-836; 1954, c. 606; 1977, c. 617.

    Cross references.

    As to what interest or right plaintiff must have to bring action of ejectment, see § 8.01-132 .

    As to where action of ejectment must be brought, see § 8.01-261 .

    For rules of court governing practice and procecure in civil actions, see Rules 3:1 through 3:25.

    Law Review.

    For discussion of boundary proceedings, see 45 Va. L. Rev. 1455 (1959).

    Michie’s Jurisprudence.

    For related discussion, see 3A M.J. Boundaries, §§ 28 — 30, 32, 42.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Burden of proving common grantor. —

    Where the parties to a boundary-line proceeding purport to trace their title to a common grantor, the burden is upon the plaintiff to prove perfect legal title by showing an unbroken chain running back to the common source. Bulifant v. Slosjarik, 221 Va. 983 , 277 S.E.2d 151, 1981 Va. LEXIS 238 (1981).

    Effect of deed recorded years after execution. —

    In a boundary-line proceeding in which plaintiffs and defendant both claimed to trace their title to the disputed strip to a common grantor, there was evidence that the deed was recorded, but where the deed is recorded many years after its execution and no satisfactory explanation accounts for its whereabouts during the intervening period, no presumption of delivery arises from the mere fact of recordation; therefore, the plaintiffs failed to establish title to the disputed strip because they did not prove proper delivery of the deed. Bulifant v. Slosjarik, 221 Va. 983 , 277 S.E.2d 151, 1981 Va. LEXIS 238 (1981).

    Comparable to ejectment. —

    Where in a proceeding under the section to establish a boundary line the title and right of possession of the coterminous owners is brought into dispute by the pleadings, the same principles of law are applicable as would be applicable to the same subject in an action of ejectment. Bulifant v. Slosjarik, 221 Va. 983 , 277 S.E.2d 151, 1981 Va. LEXIS 238 (1981).

    II.Nature of Action.

    Editor’s note.

    Some of the cases cited below were decided under corresponding provisions of former law. The terms “this statute” and “this section,” as used below, refer to former provisions.

    The proceeding to settle and determine boundaries under this section is an action for the recovery of property. Bradshaw v. Booth, 129 Va. 19 , 105 S.E. 555 , 1921 Va. LEXIS 73 (1921), overruled in part, Howard v. Ball, 289 Va. 470 , 770 S.E.2d 476, 2015 Va. LEXIS 46 (2015) (overruled in part by Howard v. Ball, 770 S.E.2d 476 (Va. 2015) (to the extent Bradshaw can be interpreted to allow a party to rely on adverse possession as an affirmative defense without expressly pleading it in an ejectment action or an action to establish boundary lines)).

    A summary proceeding at law. —

    The remedy given by this section for ascertaining and determining “the boundary lines of real estate” is a summary proceeding at law, and not in equity. Wright v. Rabey, 117 Va. 884 , 86 S.E. 71 , 1915 Va. LEXIS 109 (1915).

    Matters which may be settled. —

    In a proceeding under this section, the court will settle the line between plaintiff and defendants so far as their lands are coterminous, but the plaintiff cannot in such proceeding contest the rights of the defendants to the use of a river in which the plaintiff has no title, nor the title of defendants to land which in no way fixes the location of the line in question. James River & Kanawha Power Co. v. Old Dominion Iron & Steel Corp., 138 Va. 461 , 122 S.E. 344 , 1924 Va. LEXIS 39 (1924).

    Proceeding not incompatible with action for trespass. —

    Plaintiff’s action to try the right of possession by means of its petition (now motion for judgment) under this section, is not incompatible with the concomitant action by it for the defendant’s trespass. But plaintiff’s claim to the right of possession, to the land in dispute, while related to a claim for damages for defendant’s trespass upon the land, constitutes a distinct and independent subject of action. Brunswick Land Corp. v. Perkinson, 153 Va. 603 , 151 S.E. 138 , 1930 Va. LEXIS 256 (1930).

    But proceeding did not toll statute of limitation against action of trespass. —

    Defendant, in an action for trespass, pleaded the statute of limitations. But plaintiff claimed that the statute of limitations had been tolled by a proceeding under this section instituted after the alleged trespass by the plaintiff in the instant case against defendant to determine the boundary between plaintiff and defendant and establish title to the land upon which the trespass was alleged to have been committed. It was held that the statute was not tolled. Brunswick Land Corp. v. Perkinson, 153 Va. 603 , 151 S.E. 138 , 1930 Va. LEXIS 256 (1930).

    Proceeding not a substitute for partition. —

    The proceeding to determine boundaries under this section was not intended as a substitute for a suit for partition, nor does it afford the same relief. The former proceeding is governed by the same principles as obtained in an action of ejectment. The court has no jurisdiction therein to establish lines which have never been designated with proper certainty by the source of title of the plaintiff. Whereas that is precisely the relief which a suit for partition in kind affords to those who own several freeholds in the same land, which have never been divided in severalty with respect to the right of possession, by definite designation, in the source of title, of the dividing line or lines. Hodges v. Thornton, 138 Va. 112 , 120 S.E. 865 , 1924 Va. LEXIS 15 (1924).

    But proceeding may determine dividing line under partition agreement. —

    In a proceeding under this section, if a partition deed from grantors to their cotenant did not include all the lands which, according to the agreed line, were the property of the cotenant and now belong to his successor in title, it was proper for the jury to so fix the dividing line as to give to the cotenant’s successor in title the land which was the cotenant’s under the terms of the partition agreement. Vanover v. Hollyfield, 151 Va. 287 , 144 S.E. 450 , 1928 Va. LEXIS 233 (1928).

    Must designate boundaries in motion. —

    This section is a statutory remedy to have ascertained and designated the true boundary line or lines of coterminous landowners, and the plaintiff is required to designate with reasonable certainty in his motion the boundary line or lines which he seeks to establish. James River & Kanawha Power Co. v. Old Dominion Iron & Steel Corp., 138 Va. 461 , 122 S.E. 344 , 1924 Va. LEXIS 39 (1924).

    III.Comparable to Ejectment.

    Proceeding as a substitute for action of ejectment. —

    This statute, which was presumably enacted with knowledge of the long established right of joinder in actions of ejectment, was intended, and has been used, as a frequently available and convenient substitute for ejectment. This is shown by the language of the statute, by its location in the Code of 1919 in the chapter on ejectment, and inferentially at least by the reported decisions. Fray v. Pollock, 7 Va. L. Reg. 95 (1921).

    While the judgment of the court under this section may not in terms be a judgment rendered for land, yet in substance and effect it is for land to the same extent as in a judgment entered in an action of ejectment. Pickeral v. Federal Land Bank, 177 Va. 743 , 15 S.E.2d 82, 1941 Va. LEXIS 257 (1941).

    Same principles applicable. —

    Where in a proceeding under the section to establish a boundary line the title and right of possession of the coterminous owners is brought into dispute by the pleadings, the same principles of law are applicable as would be applicable to the same subject in an action of ejectment. Brunswick Land Corp. v. Perkinson, 146 Va. 695 , 132 S.E. 853 , 1926 Va. LEXIS 358 (1926) (see Prettyman v. M. J. Duer & Co., 52 S.E.2d 156, 189 Va. 122 , 1949 Va. LEXIS 155; Wade v. Ford, 193 Va. 279 , 68 S.E.2d 528 (1952); Allen v. Powers, 194 Va. 662 , 74 S.E.2d 688 (1953); Bull Run Dev. Corp. v. Jackson, 201 Va. 95 , 109 S.E.2d 400 (1959); Custis Fishing & Hunting Club, Inc. v. Johnson, 214 Va. 388 , 200 S.E.2d 542 (1973)).

    In a proceeding under this section, to determine boundaries, the same principles are inevitably involved as are involved on the same subject in actions of ejectment. Where the plaintiff to recover relies on title to land up to a certain location of its boundary on the ground, although the defendant may in general terms admit by the pleadings that the plaintiff has title to some land claimed by the latter, yet when the defendant denies that the plaintiff’s title extends to such location, the plaintiff is inescapably put to his proof of such a title by evidence of title which the defendant cannot be heard to dispute. Such evidence must trace the title either from the Commonwealth or other common grantor. Bradshaw v. Booth, 129 Va. 19 , 105 S.E. 555 , 1921 Va. LEXIS 73 (1921), overruled in part, Howard v. Ball, 289 Va. 470 , 770 S.E.2d 476, 2015 Va. LEXIS 46 (2015) (overruled in part by Howard v. Ball, 770 S.E.2d 476 (Va. 2015) (to the extent Bradshaw can be interpreted to allow a party to rely on adverse possession as an affirmative defense without expressly pleading it in an ejectment action or an action to establish boundary lines)).

    But section not coextensive with ejectment. —

    This section is not in every respect coextensive with the action of ejectment. The statute is coextensive with the action of ejectment only in cases of coterminous ownership, and, in such cases, only to the extent that the lands of the parties are shown to be coterminous. James River & Kanawha Power Co. v. Old Dominion Iron & Steel Corp., 138 Va. 461 , 122 S.E. 344 , 1924 Va. LEXIS 39 (1924).

    The proceeding to establish boundary lines under this section may be used as a substitute for the action of ejectment where there is a dispute between coterminous landowners over the true boundary line or lines, and much of the law relating to ejectment applies to this proceeding. Pickeral v. Federal Land Bank, 177 Va. 743 , 15 S.E.2d 82, 1941 Va. LEXIS 257 (1941).

    Distinguished from ejectment. —

    An important distinction exists between a proceeding to establish a boundary line and an action of ejectment, in that an action of ejectment will not lie when the plaintiff is in possession, whereas a proceeding to establish a boundary line may be brought whether the plaintiff is in possession or not. They are, therefore, not coextensive in that respect. Brunswick Land Corp. v. Perkinson, 146 Va. 695 , 132 S.E. 853 , 1926 Va. LEXIS 358 (1926).

    No intent to grant advantage. —

    There is little or no difference except as to procedure between an action in ejectment and a proceeding under this section, and there is nothing in this section which would suggest that the legislature intended to give parties litigating their rights under the statute any advantage over parties who had proceeded by ejectment. Choate v. Calhoun, 153 Va. 52 , 149 S.E. 470 , 1929 Va. LEXIS 240 (1929).

    An equitable estoppel cannot be pleaded or proven in ejectment or in an action under this section. Allen v. Powers, 194 Va. 662 , 74 S.E.2d 688, 1953 Va. LEXIS 132 (1953).

    IV.Title of Plaintiff.

    Fee owner entitled to proceed under section. —

    The title of the plaintiff being a fee, and the controversy being with the owners of “coterminous real estate” as to the true location of boundary lines between the plaintiff and the defendants, the plaintiff had the right to proceed under this section and was not driven to an action of ejectment. Christian v. Bulbeck, 120 Va. 74 , 90 S.E. 661 , 1916 Va. LEXIS 159 (1916).

    Plaintiff must recover on the strength of his own title. —

    In a proceeding under this section to determine the boundary line or lines between certain coterminous land of the parties, as well as in ejectment, a plaintiff who cannot rely on actual possession, must recover, if at all, upon the strength of his own title. Griggs v. Brown, 126 Va. 556 , 102 S.E. 212 , 1920 Va. LEXIS 8 (1920) (see also Christian v. Bulbeck, 120 Va. 74 , 90 S.E. 661 (1916)).

    As a general rule a plaintiff must recover on the strength of his own title, and, when he relies solely on his own paper title, must trace it either from the Commonwealth or other common grantor, but it is well settled that he is not required to do this when he shows such a state of facts as will warrant the jury in presuming a grant. Brunswick Land Corp. v. Perkinson, 146 Va. 695 , 132 S.E. 853 , 1926 Va. LEXIS 358 (1926); Prettyman v. M. J. Duer & Co., 189 Va. 122 , 52 S.E.2d 156, 1949 Va. LEXIS 155 (1949); Bull Run Dev. Corp. v. Jackson, 201 Va. 95 , 109 S.E.2d 400, 1959 Va. LEXIS 198 (1959).

    As a general rule, in an action in ejectment as well as in a proceeding under this section to establish a boundary line of coterminous lands, in order for a plaintiff to prevail he must do so on the strength of his own title, and when he relies on his own paper title he must trace an unbroken chain of title back to the Commonwealth or to a common grantor or prove such a state of facts as will warrant the presumption of a grant. Page v. Luhring, 208 Va. 643 , 159 S.E.2d 642, 1968 Va. LEXIS 161 (1968).

    Plaintiff said that his prior peaceful possession of the disputed land under color of title constituted prima facie evidence of ownership and seisin sufficient to warrant a judgment of ownership unless defendant showed a better title, which he had not done. The principle relied on is a recognized exception to the general rule that a plaintiff must win on the strength of his own title. However the exception is restricted to those situations where the defendant is an intruder or trespasser without color of title. Page v. Luhring, 208 Va. 643 , 159 S.E.2d 642, 1968 Va. LEXIS 161 (1968).

    Generally, a plaintiff must prevail, if at all, on the strength of his own title. Custis Fishing & Hunting Club, Inc. v. Johnson, 214 Va. 388 , 200 S.E.2d 542, 1973 Va. LEXIS 319 (1973).

    How title proved. —

    In order for plaintiff to prevail in a proceeding under this section he must prove (1) that he has a perfect legal title to the land in dispute by showing an unbroken chain of title either to the Commonwealth or to a common grantor; or (2) that he has title to the land by adverse possession; or (3) such a state of facts as will warrant the court in presuming a grant. Bull Run Dev. Corp. v. Jackson, 201 Va. 95 , 109 S.E.2d 400, 1959 Va. LEXIS 198 (1959).

    Plaintiffs bear burden of proof. —

    In boundary proceedings, those who initiate the proceedings bear the burden of proof by a preponderance of the evidence. When plaintiffs in such proceedings fail to prove paper title or title by adverse possession, they must bear that burden by proving a state of facts that will warrant the court in presuming a grant. Ferris v. Snellings, 213 Va. 452 , 192 S.E.2d 804, 1972 Va. LEXIS 384 (1972).

    Having initiated the proceedings, plaintiffs had the burden of establishing the boundaries of their property by a preponderance of the evidence. Central Nat'l Bank v. Florence, 215 Va. 463 , 211 S.E.2d 564, 1975 Va. LEXIS 174 (1975).

    If the plaintiff is unable to trace his title from the Commonwealth or other common grantor, he has the burden of proving facts that will warrant a jury in presuming a grant. Custis Fishing & Hunting Club, Inc. v. Johnson, 214 Va. 388 , 200 S.E.2d 542, 1973 Va. LEXIS 319 (1973).

    Parol evidence not an independent source of title. —

    The extent of boundaries of land, and thus the title to land, cannot be established wholly by parol evidence, unsupported by written evidence of title, where title by adverse possession is not involved and where the case is one in which the title claimed is by deed and must have been derived by deed, if derived at all; for to hold otherwise would be to permit parol evidence to become an independent source of title, which is not permissible. Ferris v. Snellings, 213 Va. 452 , 192 S.E.2d 804, 1972 Va. LEXIS 384 (1972).

    Deed must specifically define boundaries. —

    If plaintiffs claim title by deed, their deed must specifically define the boundaries of their claim. Ferris v. Snellings, 213 Va. 452 , 192 S.E.2d 804, 1972 Va. LEXIS 384 (1972); Central Nat'l Bank v. Florence, 215 Va. 463 , 211 S.E.2d 564, 1975 Va. LEXIS 174 (1975).

    Effect of prior possession. —

    When plaintiff has never had actual or constructive possession of any part of the land in controversy in a proceeding under this section to determine boundaries, he must show a complete legal title to the premises in order to recover. If plaintiff had had a prior possession to that of the defendant and the possession of the latter had been obtained by intrusion and trespass without color of title, such prior possession would have raised a presumption of title in the plaintiff which would have been sufficient to show a complete legal title to the premises in him. Bradshaw v. Booth, 129 Va. 19 , 105 S.E. 555 , 1921 Va. LEXIS 73 (1921), overruled in part, Howard v. Ball, 289 Va. 470 , 770 S.E.2d 476, 2015 Va. LEXIS 46 (2015) (overruled in part by Howard v. Ball, 770 S.E.2d 476 (Va. 2015) (to the extent Bradshaw can be interpreted to allow a party to rely on adverse possession as an affirmative defense without expressly pleading it in an ejectment action or an action to establish boundary lines)).

    The principle that possession under color of title constitutes a prima facie title is under the great weight of authority restricted to those factual situations where the defendant is a mere intruder or trespasser without color of title. Bull Run Dev. Corp. v. Jackson, 201 Va. 95 , 109 S.E.2d 400, 1959 Va. LEXIS 198 (1959).

    An exception to the rule that, generally, a plaintiff must prevail, if at all, on the strength of his own title permits the plaintiff to establish a prima facie case of ownership by showing that he has taken prior peaceful possession under color of title, but this exception is limited to cases in which the defendant is a mere intruder or trespasser without color of title. Custis Fishing & Hunting Club, Inc. v. Johnson, 214 Va. 388 , 200 S.E.2d 542, 1973 Va. LEXIS 319 (1973).

    Possession necessary to afford presumption of grant. —

    Courts will presume a grant where one has for a long period of time held an uninterrupted possession of land while exercising proprietary rights. The possession necessary to afford a presumption of a grant must be actual, open, adverse, exclusive and uninterrupted, as well as inconsistent with the existence of title in another. Ferris v. Snellings, 213 Va. 452 , 192 S.E.2d 804, 1972 Va. LEXIS 384 (1972).

    Plaintiff’s presumption of grant theory failed where the defendants were not mere intruders or trespassers, but owners of property adjoining the mill pond, who had acquired a colorable claim, asserted in their grounds of defense, to riparian interests extending to the center of the pond. Custis Fishing & Hunting Club, Inc. v. Johnson, 214 Va. 388 , 200 S.E.2d 542, 1973 Va. LEXIS 319 (1973).

    In the absence of express exclusion by deed or contract, an owner adjoining a fresh water pond acquires whatever interest in the pond his grantor had, regardless of the use of descriptive boundary terms such as “along” or “with” the pond. Custis Fishing & Hunting Club, Inc. v. Johnson, 214 Va. 388 , 200 S.E.2d 542, 1973 Va. LEXIS 319 (1973).

    V.Parties.

    Relation of parties as owners of mineral and surface rights is not that of coterminous landowners and hence the remedy for settling disputed boundary lines, provided in this section, is not available to either side. Buchanan Coal Co. v. Street, 175 Va. 531 , 9 S.E.2d 339, 1940 Va. LEXIS 198 (1940).

    CIRCUIT COURT OPINIONS

    Determination as to common boundary. —

    Circuit court found that the greater weight of the evidence established that an existing 24-foot white oak tree located southwest of the roadway marked the common boundary based on the age of the tree and the fact that the radial inverse lines to the northwest corner of the property supported the use of this tree rather than a smaller tree that was once six inches in diameter; further, the court found that it was unlikely that the surveyors would have used such a small tree when there was a larger tree in close proximity. Denton v. Abbitt, 66 Va. Cir. 54, 2004 Va. Cir. LEXIS 249 (Amherst County Sept. 8, 2004).

    Adverse possession not proved. —

    Where a doctor’s limited and sporadic activities on the disputed property north of a fence, which included planting grass on one occasion, occasionally walking dogs on the property, planting trees, sometimes descenting skunks and burying animals on the property, and occasionally cutting the grass and underbrush, did not constitute actual, hostile, exclusive, visible, and continuous use of the property for 15 years, a commissioner’s report was confirmed in its entirety. Russrand Triangle Assocs., L.L.C. v. Morgan, 64 Va. Cir. 241, 2004 Va. Cir. LEXIS 59 (Chesapeake Mar. 18, 2004).

    § 8.01-180. Parties defendant; pleadings.

    The plaintiff shall make defendants to such motion for judgment all persons having a present interest in the boundary line or lines sought to be ascertained and designated.

    History. Code 1950, § 8-837; 1954, c. 606; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 3A M.J. Boundaries, §§ 28, 29.

    CASE NOTES

    Editor’s note.

    Adverse possession may be set up as a defense to a petition (now motion for judgment) under this section. Christian v. Bulbeck, 120 Va. 74 , 90 S.E. 661 , 1916 Va. LEXIS 159 (1916) (see also Bradshaw v. Booth, 129 Va. 19 , 105 S.E. 555 (1921) (overruled in part by Howard v. Ball, 770 S.E.2d 476 (Va. 2015) (to the extent Bradshaw can be interpreted to allow a party to rely on adverse possession as an affirmative defense without expressly pleading it in an ejectment action or an action to establish boundary lines))).

    The burden of establishing adverse possession is upon the defendant. Westland Realty Corp. v. Griffin, 151 Va. 1005 , 145 S.E. 718 , 1928 Va. LEXIS 286 (1928).

    Plaintiff’s acquiescence in defendant’s survey did not work estoppel. —

    The mere acquiescence of plaintiff in a survey by defendant of the land in controversy in a proceeding under this section, to determine boundaries, at the time of the purchase of the real estate by defendant, does not estop plaintiff from afterwards asserting an adverse claim of title inconsistent with the validity of the survey in the accuracy of which he had acquiesced. Such mere acquiescence alone will not work an estoppel. In order to do so the acquiescence must have influenced the subsequent conduct of the defendant to his prejudice. Bradshaw v. Booth, 129 Va. 19 , 105 S.E. 555 , 1921 Va. LEXIS 73 (1921), overruled in part, Howard v. Ball, 289 Va. 470 , 770 S.E.2d 476, 2015 Va. LEXIS 46 (2015) (overruled in part by Howard v. Ball, 770 S.E.2d 476 (Va. 2015) (to the extent Bradshaw can be interpreted to allow a party to rely on adverse possession as an affirmative defense without expressly pleading it in an ejectment action or an action to establish boundary lines)).

    Defendant receives no benefit from compromise not accepted. —

    Where a defendant in a proceeding to ascertain a boundary between him and the plaintiff has refused to accept an offer of a compromise line made in the petition (now motion for judgment), and has denied the right of the plaintiff to the line both in his pleadings and proof, he has no right to claim any benefit from such offer. Hamman v. Miller, 116 Va. 873 , 83 S.E. 382 , 1914 Va. LEXIS 101 (1914).

    § 8.01-181. Surveys.

    The court may appoint a surveyor and direct such surveys to be made as it deems necessary, and the costs thereof shall be assessed as the court may direct.

    History. Code 1950, § 8-838; 1954, c. 606; 1977, c. 617.

    REVISERS’ NOTE

    Provisions regarding trial in former § 8-838 were deleted as unnecessary. Added is the provision that the court may assess the cost of any survey ordered.

    Former § 8-841 (Writ of error to judgment) was deleted as unnecessary.

    Michie’s Jurisprudence.

    For related discussion, see 3A M.J. Boundaries, § 32.

    CASE NOTES

    Editor’s note.

    Statutory duty as to surveys. —

    The provisions of this section are not intended to prevent the court of its own motion from ordering such survey or surveys as it might deem necessary to give effect to its judgment as to what constitutes the boundary between the parties by locating and marking the line on the ground. It is not only the right, but the duty, of the court to have such survey or surveys made whenever deemed proper. This holding is made statutory by the present form of the section. Hamman v. Miller, 116 Va. 873 , 83 S.E. 382 , 1914 Va. LEXIS 101 (1914).

    A private survey is admissible as evidence of a boundary line between those who are parties to it or who claim under it, but it is not admissible as independent evidence against others. Robinson v. Peterson, 200 Va. 186 , 104 S.E.2d 788, 1958 Va. LEXIS 175 (1958).

    Opinion testimony of surveyor of no probative value. —

    The testimony of the surveyor in a boundary line case giving his opinion about the lines is of no probative value. Hargrove v. Harris, 167 Va. 320 , 189 S.E. 307 , 1937 Va. LEXIS 280 (1937) (see also Griggs v. Brown, 126 Va. 556 , 102 S.E. 212 (1920)).

    § 8.01-182. Claims to rents, etc., not considered.

    In a proceeding under this article, no claim of the plaintiff for rents, profits or damages shall be considered.

    History. Code 1950, § 8-839; 1977, c. 617.

    § 8.01-183. Recordation and effect of judgment.

    The judgment of the court shall be recorded in the current deed book of the court. The judgment shall forever settle, determine, and designate the true boundary line or lines in question, between the parties, their heirs, devisees, and assigns. The judgment may be enforced in the same manner as a judgment in an action of ejectment.

    History. Code 1950, § 8-840; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 3A M.J. Boundaries, § 51.

    CASE NOTES

    Holding did not purport to, and could not, affect the rights of persons who were not parties or their successors in interest. Page v. Luhring, 211 Va. 503 , 178 S.E.2d 527, 1971 Va. LEXIS 202 (1971) (decided under prior law).

    Article 17. Declaratory Judgments.

    § 8.01-184. Power to issue declaratory judgments.

    In cases of actual controversy, circuit courts within the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed and no action or proceeding shall be open to objection on the ground that a judgment order or decree merely declaratory of right is prayed for. Controversies involving the interpretation of deeds, wills, and other instruments of writing, statutes, municipal ordinances and other governmental regulations, may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial of right.

    History. Code 1950, § 8-578; 1977, c. 617.

    Cross references.

    For method of securing construction of act requiring payment of money out of state treasury, see § 8.01-653 .

    Law Review.

    For comment on challenging rezoning in Virginia, see 15 U. Rich. L. Rev. 423 (1981).

    For note, “Desuetude and Declaratory Judgment: A New Challenge to Obsolete Laws,” see 76 Va. L. Rev. 1057 (1990).

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).

    For annual survey of Virginia law article, “Local Government Law,” see 47 U. Rich. L. Rev. 257 (2012).

    For Survey article, “Civil Practice and Procedure,” see 48 U. Rich. L. Rev. 1 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, §§ 218, 219.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    This section and § 8.01-191 are to be liberally interpreted and administered with a view to making the courts more serviceable to the people. Board of Supvrs. v. Southland Corp., 224 Va. 514 , 297 S.E.2d 718, 1982 Va. LEXIS 323 (1982).

    The controversy must be one that is justiciable, that is, where specific adverse claims, based upon present rather than future or speculative facts, are ripe for judicial adjustment. Reisen v. Aetna Life & Cas. Co., 225 Va. 327 , 302 S.E.2d 529, 1983 Va. LEXIS 225 (1983).

    When a state provides an adequate procedure for obtaining just compensation, a property owner cannot claim a violation of the federal provision until it has used the state procedure and been denied just compensation. Pasquotank Action Council, Inc. v. City of Va. Beach, 909 F. Supp. 376, 1995 U.S. Dist. LEXIS 19119 (E.D. Va. 1995).

    Standing generally. —

    A plaintiff has standing to bring a declaratory judgment proceeding if he has “a justiciable interest” in the subject matter of the litigation, either in his own right or in a representative capacity. Cupp v. Board of Supvrs., 227 Va. 580 , 318 S.E.2d 407, 1984 Va. LEXIS 228 (1984).

    Pleadings filed by the second of two landowners failed to assert a valid request for declaratory relief because, among other reasons, the pleadings did not seek preventive relief, but effectively attempted to create a right of appeal that did not exist by statute; moreover, as a third party, the landowner lacked a right of appeal from the board’s determination. Miller v. Highland County, 274 Va. 355 , 650 S.E.2d 532, 2007 Va. LEXIS 119 (2007).

    A justiciable controversy involves specific adverse claims based on present facts that are ripe for adjudication. Mosher Steel-Virginia v. Teig, 229 Va. 95 , 327 S.E.2d 87, 1985 Va. LEXIS 178 (1985).

    A hypothetical or abstract interest is insufficient to confer standing to bring a declaratory judgment action. Mosher Steel-Virginia v. Teig, 229 Va. 95 , 327 S.E.2d 87, 1985 Va. LEXIS 178 (1985).

    Where there is no administrative remedy equal to the relief sought, a complainant in a declaratory judgment proceeding, having no adequate legal remedy by judicial review, properly states a justiciable cause of action. Mosher Steel-Virginia v. Teig, 229 Va. 95 , 327 S.E.2d 87, 1985 Va. LEXIS 178 (1985).

    Other remedies available. —

    Trial court did not have jurisdiction to issue a declaratory judgment under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., since a mother had other remedies available to her in continuing to defend a same sex partner’s litigation seeking to register and enforce the Vermont custody orders; for the same reason, the mother could not obtain injunctive relief. Miller v. Jenkins, 54 Va. App. 282, 678 S.E.2d 268, 2009 Va. App. LEXIS 291 (2009).

    The binding adjudications of right made under this section must resolve issues specifically pled in the petition for declaratory judgment, and the court is not empowered to make binding adjudications of right which are not specifically pled. Scottsdale Ins. Co. v. Glick, 240 Va. 283 , 397 S.E.2d 105, 1990 Va. LEXIS 112 (1990).

    Private rights of action. —

    Circuit court properly dismissed the estates’ declaratory judgment complaints seeking to assert a private right of action against two nursing homes for the production of documents because the estates’ claims could not be enforced where the governing statutes did not authorize a private right of action and the estates could not use the Declaratory Judgment Act as a platform for asserting non-existent private rights of action to enforce an administrative regulation promulgated by the Board of Health. Cherrie v. Va. Health Servs., 292 Va. 309 , 787 S.E.2d 855, 2016 Va. LEXIS 106 (2016).

    Controversy held ripe for adjudication. —

    A justiciable controversy ripe for adjudication exists where plaintiff has brought an action for damages resulting from personal injuries and defendant’s insurer seeks a declaratory judgment as to obligation to pay if defendant is subsequently found liable for plaintiff’s injuries and the circumstances give rise to a real probability that the insurer owed no coverage to the defendant. Reisen v. Aetna Life & Cas. Co., 225 Va. 327 , 302 S.E.2d 529, 1983 Va. LEXIS 225 (1983).

    Trial court properly determined that the objecting lot owners could bring a declaratory judgment action against the one lot owner who was interested in building a commercial office building on lots in their subdivision even though a restrictive covenant applicable to the lots required that the lots only be used for residential purposes, as an actual case or controversy existed because the evidence showed the one lot owner was ready to go ahead with his plans and the objecting lot owners did not want him to do so. River Heights Assocs. v. Batten, 267 Va. 262 , 591 S.E.2d 683, 2004 Va. LEXIS 15 (2004).

    Standing of owner of options to buy land subject to zoning. —

    Where a developer owned options to buy real estate that was subject to piecemeal downzoning by the local government, the developer had standing to bring a declaratory judgment proceeding since it had a justiciable interest in the subject matter of the litigation and, further, the developer’s interest by virtue of the options was not hypothetical or abstract because, as an optionee, it had an exclusive, irrevocable, binding contractual right to purchase the real estate according to the terms of the several option agreements. Board of Supvrs. v. Fralin & Waldron, Inc., 222 Va. 218 , 278 S.E.2d 859, 1981 Va. LEXIS 294 (1981).

    Unauthorized practice of law by title insurance company. —

    Whether a title insurance company is engaging in the unauthorized practice of law by its participation in real estate closings may be resolved by declaratory judgment. Blodinger v. Broker's Title, Inc., 224 Va. 201 , 294 S.E.2d 876, 1982 Va. LEXIS 282 (1982).

    The fact that unauthorized practice of law is a misdemeanor does not preclude declaratory relief to attorneys who sought determination as to whether a title insurance company’s activities constituted the unauthorized practice of law, where their goal was not solely to stop the illegal conduct of others, but to ensure that their own conduct conformed to the law and the tenets of the legal profession. Blodinger v. Broker's Title, Inc., 224 Va. 201 , 294 S.E.2d 876, 1982 Va. LEXIS 282 (1982).

    Trial court incorrectly held that declaratory judgment was not available to construe provision of written lease to determine whether continued occupancy of certain premises would subject lessee to liability for continuing damages, and his employees and customers to criminal liability for trespass; lessee was entitled to declaratory judgment action given unavailability of any remedy by customary processes and liberal construction of § 8.01-191 . Hop-In Food Stores, Inc. v. Serv-N-Save, Inc., 237 Va. 206 , 375 S.E.2d 753, 5 Va. Law Rep. 1574, 1989 Va. LEXIS 17 (1989).

    Court not to render advisory opinions. —

    Enactment of the declaratory judgment statutes did not vest the courts with authority to render advisory opinions, decide moot questions, or answer merely speculative inquiries. Reisen v. Aetna Life & Cas. Co., 225 Va. 327 , 302 S.E.2d 529, 1983 Va. LEXIS 225 (1983).

    Declarations concerning insurance coverage. —

    In a declaratory judgment action pursuant to § 8.01-184 , the trial court properly determined that an insurance company was required to provide coverage to a subcontractor; the insurance company failed to satisfy the standard set out in § 38.2-309, because an insurance agent had apparent authority to bind the company, and the agent did not rely on alleged misrepresentations in an application in deciding to bind coverage. Montgomery Mut. Ins. Co. v. Riddle, 266 Va. 539 , 587 S.E.2d 513, 2003 Va. LEXIS 104 (2003).

    Trial court properly entered a declaratory judgment holding that an insurer was not liable on a policy written for an employer and ordering that the employer return the funds the insurer contributed to settle an employee’s underlying tort claim as the policy excluded claims “arising out of and in the course of employment”; the employee was injured while riding in a truck owned by the employer that was involved in an accident on the way to a worksite. Asplundh Tree Expert Co. v. Pac. Emplrs. Ins. Co., 269 Va. 399 , 611 S.E.2d 531, 2005 Va. LEXIS 41 (2005).

    Trial court had subject matter jurisdiction under § 8.01-184 over a declaratory judgment action filed by an insurer, even though the insurer contributed funds toward the settlement of an underlying tort claim filed by an employee against an employer, where the funds were contributed under a reservation of rights to contest the coverage in the declaratory judgment action. Asplundh Tree Expert Co. v. Pac. Emplrs. Ins. Co., 269 Va. 399 , 611 S.E.2d 531, 2005 Va. LEXIS 41 (2005).

    Circuit court’s authority. —

    Under the declaratory judgment act, circuit courts have the authority to make binding adjudications of right in cases of actual controversy when there is antagonistic assertion and denial of right. Hoffman Family, L.L.C. v. Mill Two Assocs. Pshp., 259 Va. 685 , 529 S.E.2d 318, 2000 Va. LEXIS 72 (2000).

    Circuit court’s discretion. —

    The authority to enter a declaratory judgment is discretionary and must be exercised with great care and caution. Hoffman Family, L.L.C. v. Mill Two Assocs. Pshp., 259 Va. 685 , 529 S.E.2d 318, 2000 Va. LEXIS 72 (2000).

    Removal. —

    Plaintiff’s declaratory judgment action originally filed in state court under § 8.01-184 and then removed to federal court by defendant insurance companies was remanded to state court because interpreting the scope of any under-insured motorist coverage and determining what effect it should be given as to the driver of a rental car under state contract and insurance law involved issues that were especially important to a state and particularly appropriate for state court adjudication. Chapman v. Clarendon Nat'l Ins. Co., 299 F. Supp. 2d 559, 2004 U.S. Dist. LEXIS 253 (E.D. Va. 2004).

    Appellate jurisdiction in child custody cases. —

    Appellate court had jurisdiction over an appeal under § 17.1-405 , even though the case was brought under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., because the underlying cause was a custody dispute. Miller v. Jenkins, 54 Va. App. 282, 678 S.E.2d 268, 2009 Va. App. LEXIS 291 (2009).

    Circuit court did not err in dismissing a mother’s petition against a father and an adoptee for determination of paternity pursuant to § 20-49.2 and declaratory relief pursuant to the Declaratory Judgment Act, § 8.01-184 , because the mother’s action was barred by res judicata; a juvenile and domestic relations had entered an order granting joint custody of a child to the adoptee and the mother, and the mother was precluded by res judicata from seeking a difference in outcome or restoration of the place that she was before the custody order; because the mother did not seek to modify the custody order under § 20-108 but rather sought to relitigate the custody decision, her action was barred by res judicata. Morgan v. Kifus, 2011 Va. App. LEXIS 126 (Va. Ct. App. Apr. 12, 2011).

    B.Actual Controversy.

    Legality of an ordinance is tested not only by what has been done under its provisions but what may be done thereunder. Although the board of supervisors had not yet imposed the restrictions and conditions on the plaintiffs, it claimed it had the power to do so and this claim of power threatened the plaintiffs. Thus, a controversy, within the contemplation of the Declaratory Judgment Act, existed. Cupp v. Board of Supvrs., 227 Va. 580 , 318 S.E.2d 407, 1984 Va. LEXIS 228 (1984).

    Construction of covenant restricting development of property. —

    It is not always required that a party establish a vested right, in the form of governmental approval to proceed with development, before obtaining a declaratory judgment on the issue of whether some private right would bar that development. While in some cases the proposed development would be so speculative and indefinite as to not rise to the level of a justiciable controversy, where the developer has taken substantial steps, with significant financial expense, in developing specific plans for the development and where, without a determination as to the effect of a covenant affecting the property, the developer would be required to expend additional sums without relief from the uncertainty and insecurity attendant upon the continuing controversy of its legal rights with regard to the covenant, a justiciable controversy exists. Hoffman Family, L.L.C. v. Mill Two Assocs. Pshp., 259 Va. 685 , 529 S.E.2d 318, 2000 Va. LEXIS 72 (2000).

    Construction of will. —

    Trial court properly sustained an executor’s demurrer to a son’s complaint, seeking a declaratory judgment with respect to the interpretation of the will of the son’s father. Since the son alleged in his complaint that the attorney who drafted his father’s will had not qualified as the executor of his father’s will, as required by § 64.1-136 [now see § 64.2-511 ], the son failed to plead the existence of an actual controversy pursuant to § 8.01-184 . Bell v. Saunders, 278 Va. 49 , 677 S.E.2d 39, 2009 Va. LEXIS 66 (2009).

    Trial court erred in sustaining an executor’s demurrer to a wife’s complaint, seeking a declaratory judgment with respect to the interpretation of the will of a testator. Since the wife pled in the complaint that the executor had refused to pay her income from a trust estate to which she was entitled, she had pled a justiciable controversy that included specific adverse claims based on present facts that were ripe for adjudication pursuant to § 8.01-184 . Bell v. Saunders, 278 Va. 49 , 677 S.E.2d 39, 2009 Va. LEXIS 66 (2009).

    Employer may challenge, in declaratory judgment proceeding the constitutionality of warrant authorizing inspection of the employer’s manufacturing facility to determine whether the facility is being operated in compliance with the occupational safety and health laws (§ 40.1-1 et seq.). Mosher Steel-Virginia v. Teig, 229 Va. 95 , 327 S.E.2d 87, 1985 Va. LEXIS 178 (1985).

    No justiciable controversy existed where parties not named as defendants. —

    In an action for declaratory judgment by a motorist against her automobile insurer and the automobile insurer for owner of another automobile involved in an accident, no justiciable controversy existed because the motorist did not name the owner and driver of the other automobile as defendants. Erie Ins. Group v. Hughes, 240 Va. 165 , 393 S.E.2d 210, 6 Va. Law Rep. 2698, 1990 Va. LEXIS 96 (1990).

    Actual controversy. —

    Former wife’s suit against her former husband seeking a determination of her rights and obligations under the terms of a settlement agreement executed in a divorce action presented an actual controversy under the Virginia Declaratory Judgment Statute. Trimble v. Trimble, 2010 Va. App. LEXIS 161 (Va. Ct. App. Apr. 27, 2010).

    Where homeowners’ declaratory judgment claims sought to void a foreclosure and declare that no defendant financial institution or loan servicer had any right, title, or interest in the note, but they admitted default and any wrong suffered had already occurred, declaratory relief was inappropriate under either 28 U.S.C.S. § 2201 or § 8.01-184 ; declaratory judgments were designed to declare rights so that parties could conform their conduct to avoid future litigation, and were untimely if the questionable conduct had already occurred or damages had already accrued. Tapia v. United States Bank, N.A., 718 F. Supp. 2d 689, 2010 U.S. Dist. LEXIS 62448 (E.D. Va. 2010).

    Declaratory judgment claim asserted by plaintiff concerning whether a certain card game was illegal gambling, as defined in § 18.2-325 , did not present a justiciable controversy, and the circuit court did not have authority under the declaratory judgment statute, § 8.01-184 , to exercise jurisdiction concerning such claim. Daniels v. Mobley, 285 Va. 402 , 737 S.E.2d 895, 2013 Va. LEXIS 27 (2013).

    Claim not justiciable. —

    In a declaratory judgment action, fitness clubs’ claim that government payment to an organization violated § 15.2-953 was not justiciable, as § 15.2-953 did not provide a right of action to a third party to challenge a locality’s appropriation thereunder, and any declaratory judgment could not bind the organization because it was not a party to the action. Charlottesville Area Fitness Club Operators Ass'n v. Albemarle County Bd. of Supervisors, 285 Va. 87 , 737 S.E.2d 1, 2013 Va. LEXIS 5 (2013).

    Fitness clubs’ declaratory judgment action, which attempted to void a lease between a city council and a nonprofit organization, did not state a justiciable controversy because the clubs were attempting to use the declaratory judgment statute to create rights they did not otherwise have. Charlottesville Area Fitness Club Operators Ass'n v. Albemarle County Bd. of Supervisors, 285 Va. 87 , 737 S.E.2d 1, 2013 Va. LEXIS 5 (2013).

    Where fitness clubs filed declaratory judgment actions challenging payments made and public contracts awarded to a nonprofit organization, none of their claims stated a justiciable controversy because the organization was not a party to the action, and, therefore, any opinion would be merely advisory. Charlottesville Area Fitness Club Operators Ass'n v. Albemarle County Bd. of Supervisors, 285 Va. 87 , 737 S.E.2d 1, 2013 Va. LEXIS 5 (2013).

    Justiciable interest must be present. —

    Neighbors did not claim ownership of any portion of the alley other than that portion abutting their own property, which was adjudicated by the circuit court, and with respect to the portion of the alley not abutting the neighbors’ property, the landowner’s pleadings did not allege facts evidencing a specific claim between parties with trust interest to oppose the landowner’s claim to ownership of the alley; the circuit court did not err in dismissing the landowner’s claim seeking a declaration of ownership as to the remaining length of the alley. Martin v. Garner, 286 Va. 76 , 745 S.E.2d 419, 2013 Va. LEXIS 78 (2013).

    Declaratory judgment proceeding may not be maintained against a party with whom there is no controversy in order to resolve a controversy existing with one not a party to the proceeding. Treacy v. Smithfield Foods, Inc., 256 Va. 97 , 500 S.E.2d 503, 1998 Va. LEXIS 92 (1998).

    Declaratory judgment inappropriate where disputed issue could be determined in future litigation. —

    Declaratory judgment was inappropriate in case of worker injured by actions of co-worker, because case did not involve a determination of rights but only a disputed issue to be determined in future litigation between the parties, namely, whether the injuries arose out of and in the course of the injured worker’s employment. USAA Cas. Ins. Co. v. Randolph, 255 Va. 342 , 497 S.E.2d 744, 1998 Va. LEXIS 30 (1998).

    Circuit court abused its discretion in allowing a case to proceed as a declaratory judgment action after an insurance adjusting company nonsuited its other claims against homeowners. The declaratory relief requested was a determination of a disputed issue rather than an adjudication of the parties’ rights; although the company asserted that it was seeking a determination of its rights vis-a-vis the homeowners with regard to insurance proceeds, the company was actually asking the circuit court to decide whether the homeowners had breached the contract between them and the company. Green v. Goodman-Gable-Gould Co., 268 Va. 102 , 597 S.E.2d 77, 2004 Va. LEXIS 95 (2004).

    Challenge to public contract. —

    As fitness clubs attempted to challenge governmental action in a manner not authorized by statute, and to create rights through the declaratory judgment statute, § 8.01-184 , that they did not have under the Virginia Public Procurement Act, § 2.2-4300 et seq., they failed to allege a justiciable controversy subject to resolution through a declaratory judgment proceeding. Charlottesville Area Fitness Club Operators Ass'n v. Albemarle County Bd. of Supervisors, 285 Va. 87 , 737 S.E.2d 1, 2013 Va. LEXIS 5 (2013).

    Standing. —

    Trial court did not err in applying the “aggrieved person” standard in evaluating an environmental association and individual complainants’ standing to appeal a decision of a county board of supervisors, as any distinction between an “aggrieved party” and a “justiciable interest” was a distinction without a difference in declaratory judgment actions challenging land use decisions. Friends of the Rappahannock v. Caroline County Bd. of Supervisors, 286 Va. 38 , 743 S.E.2d 132, 2013 Va. LEXIS 72 (2013).

    Strangers to plat approval process. —

    Landowners could not seek a declaratory judgment under § 8.01-184 to challenge approval of part of a plat of a subdivision pursuant to the city’s Subdivision Ordinance. The landowners did not have any rights at stake, as they were strangers to the plat approval process. Logan v. City Council, 275 Va. 483 , 659 S.E.2d 296, 2008 Va. LEXIS 52 (2008).

    Members lacked standing. —

    Members had no standing to bring a declaratory judgment suit challenging a property development because, inter alia, no language in Hampton, Va., Charter §§ 3A-10 and 3A-11 provided or suggested a continuing role for a “committee of petitioners” beyond the petition process; when the city council agreed to repeal the ordinance, which negated the necessity of presenting the petition for repeal to the trial court, the committee’s authority to act ended and the committee had no ongoing justiciable right or interest that was aggrieved by the development property. Deerfield v. City of Hampton, 283 Va. 759 , 724 S.E.2d 724, 2012 Va. LEXIS 91 (2012).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Constitutionality. —

    The declaratory judgments law, as embraced in this chapter, is constitutional. Patterson v. Patterson, 144 Va. 113 , 131 S.E. 217 , 1926 Va. LEXIS 234 (1926); Carr v. Union Church, 186 Va. 411 , 42 S.E.2d 840, 1947 Va. LEXIS 166 (1947).

    Declaratory judgments are creatures of statutes. D.D. Jones Transf. & Whse. Co. v. Commonwealth ex rel. SCC, 174 Va. 184 , 5 S.E.2d 628, 1939 Va. LEXIS 153 (1939).

    An action for declaratory judgment is statutory. Sood v. Advanced Computer Techniques Corp., 308 F. Supp. 239, 1969 U.S. Dist. LEXIS 8898 (E.D. Va. 1969).

    The Supreme Court has no original jurisdiction of a proceeding for a declaratory judgment. D.D. Jones Transf. & Whse. Co. v. Commonwealth ex rel. SCC, 174 Va. 184 , 5 S.E.2d 628, 1939 Va. LEXIS 153 (1939); Portsmouth Restaurant Ass'n v. Hotel & Restaurant Employees Alliance, Local 807, 183 Va. 757 , 33 S.E.2d 218, 1945 Va. LEXIS 223 (1945).

    Purpose of the declaratory judgment act is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor. Criterion Ins. Co. v. Grange Mut. Cas. Co., 210 Va. 446 , 171 S.E.2d 669, 1970 Va. LEXIS 142 (1970).

    The intent of the declaratory judgment statutes is not to give parties greater rights than those which they previously possessed, but to permit the declaration of those rights before they mature. In other words, the intent of the act is to have courts render declaratory judgments which may guide parties in their future conduct in relation to each other, thereby relieving them from the risk of taking undirected action incident to their rights, which action, without direction, would jeopardize their interests. This is with a view rather to avoid litigation than in aid of it. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519, 1970 Va. LEXIS 263 (1970).

    Preventive relief is moving purpose. —

    The act does not require one to wait until a right has been violated to seek judicial relief. Preventive relief is the moving purpose. Portsmouth Restaurant Ass'n v. Hotel & Restaurant Employees Alliance, Local 807, 183 Va. 757 , 33 S.E.2d 218, 1945 Va. LEXIS 223 (1945).

    Declaratory judgments are intended to supplement rather than to supersede ordinary causes of action and to relieve litigants of the common-law rule that no declaration of rights may be judicially adjudged until a right has been violated. American Nat'l Bank & Trust Co. v. Kushner, 162 Va. 378 , 174 S.E. 777 , 1934 Va. LEXIS 252 (1934).

    Declaratory judgments are intended to supplement rather than to supersede ordinary causes of action. Preventive relief is the moving purpose. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519, 1970 Va. LEXIS 263 (1970).

    Effect of the declaratory judgment act, as embraced in this and the succeeding sections of this article, is to increase the usefulness of the courts and remove doubt or uncertainty as to the final result of legal controversies, by empowering the courts to enter declaratory judgments and decrees touching the rights of the parties in such cases. Patterson v. Patterson, 144 Va. 113 , 131 S.E. 217 , 1926 Va. LEXIS 234 (1926); Winborne v. Doyle, 190 Va. 867 , 59 S.E.2d 90, 1950 Va. LEXIS 177 (1950).

    Customary processes of court are preferred. —

    In common cases where a right has matured or a wrong has been suffered, customary processes of the court, where they are ample and adequate, should be adopted, rather than a petition for a declaratory judgment. American Nat'l Bank & Trust Co. v. Kushner, 162 Va. 378 , 174 S.E. 777 , 1934 Va. LEXIS 252 (1934); Williams v. Southern Bank, 203 Va. 657 , 125 S.E.2d 803, 1962 Va. LEXIS 202 (1962).

    The declaratory judgment act is remedial and is to be liberally interpreted and administered. Yukon Pocahontas Coal Co. v. Ratliff, 175 Va. 366 , 8 S.E.2d 303, 1940 Va. LEXIS 179 (1940); Portsmouth Restaurant Ass'n v. Hotel & Restaurant Employees Alliance, Local 807, 183 Va. 757 , 33 S.E.2d 218, 1945 Va. LEXIS 223 (1945); Dean v. Paolicelli, 194 Va. 219 , 72 S.E.2d 506, 1952 Va. LEXIS 223 (1952).

    Justiciable interest must be present. —

    In order to entitle any person to maintain an action in court it must be shown that he has a justiciable interest in the subject matter in litigation; either in his own right or in a representative capacity. Lynchburg Traffic Bureau v. Norfolk & W. Ry., 207 Va. 107 , 147 S.E.2d 744, 1966 Va. LEXIS 194 (1966).

    Preventing multiplicity of suits. —

    The fact that multiplicity of actions may be avoided if a declaratory judgment be granted is not always a ground for assuming jurisdiction. There must be some real necessity for the exercise of jurisdiction on such ground. It must be made to appear that there is no adequate remedy at law as practical and effective to attain the ends of justice as may be accomplished in a court of equity and that the questions of law and fact involved are common to each of the several actions. Williams v. Southern Bank, 203 Va. 657 , 125 S.E.2d 803, 1962 Va. LEXIS 202 (1962); Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519, 1970 Va. LEXIS 263 (1970).

    It makes no difference on which side of the court a case proceeds if it is brought properly under the declaratory judgments statutes. Carr v. Union Church, 186 Va. 411 , 42 S.E.2d 840, 1947 Va. LEXIS 166 (1947).

    An action for declaratory judgment may proceed on law or chancery side of the court. Sood v. Advanced Computer Techniques Corp., 308 F. Supp. 239, 1969 U.S. Dist. LEXIS 8898 (E.D. Va. 1969).

    Exercise of jurisdiction is within discretion of trial court. —

    Upon a petition for a declaratory judgment, whether or not jurisdiction shall be taken is within the sound discretion of the trial court. Something more than an “actual controversy” is necessary. American Nat'l Bank & Trust Co. v. Kushner, 162 Va. 378 , 174 S.E. 777 , 1934 Va. LEXIS 252 (1934); D.D. Jones Transf. & Whse. Co. v. Commonwealth ex rel. SCC, 174 Va. 184 , 5 S.E.2d 628, 1939 Va. LEXIS 153 (1939); Andrews v. Universal Moulded Prods. Corp., 189 Va. 527 , 53 S.E.2d 837, 1949 Va. LEXIS 195 (1949).

    Whether or not jurisdiction shall be taken is within the sound discretion of the trial court. Something more than an “actual controversy” is necessary. In common cases where a right has matured or a wrong has been suffered, customary processes of the court, where they are ample and adequate, should be adopted. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519, 1970 Va. LEXIS 263 (1970).

    The power to make a declaratory judgment is a discretionary one and must be exercised with care and caution. It will not, as a rule, be exercised where some other mode of proceeding is provided. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519, 1970 Va. LEXIS 263 (1970).

    Rule is permissive, not mandatory. Commonwealth ex rel. Art Comm'n v. Silvette, 215 Va. 596 , 212 S.E.2d 261, 1975 Va. LEXIS 194 (1975).

    Courts not to render advisory opinions. —

    The act providing for declaratory judgments, contemplates that the parties to the proceeding shall be adversely interested in the matter as to which the declaratory judgment is sought and their relation thereto such that a judgment or decree will operate as res judicata as to them. It authorizes the entry of such judgment before the right is violated, and even though no consequential relief is or could be asked for or granted. It does not, however, confer upon the courts the power to render judicial decisions which are advisory only. Chick v. McBain, 157 Va. 60 , 160 S.E. 214 , 1931 Va. LEXIS 302 (1931).

    The courts are not constituted, and the declaratory judgment statute was not intended to vest them with authority, to render advisory opinions, to decide moot questions or to answer inquiries which are merely speculative. City of Fairfax v. Shanklin, 205 Va. 227 , 135 S.E.2d 773, 1964 Va. LEXIS 170 (1964); Virginia Historic Landmarks Comm'n v. Board of Supvrs., 217 Va. 468 , 230 S.E.2d 449, 1976 Va. LEXIS 306 (1976).

    Consequential or incidental relief may be obtained in an action in which a declaratory judgment is sought. Winborne v. Doyle, 190 Va. 867 , 59 S.E.2d 90, 1950 Va. LEXIS 177 (1950); Dean v. Paolicelli, 194 Va. 219 , 72 S.E.2d 506, 1952 Va. LEXIS 223 (1952).

    But failure to seek incidental relief does not bar enforcement of rights in other proceedings. —

    The failure to seek incidental relief in a suit for a declaratory judgment does not constitute a bar to other proceedings to enforce the rights determined by the judgment, whether such other proceeding is by petition filed in that cause or in a separate and independent action. Winborne v. Doyle, 190 Va. 867 , 59 S.E.2d 90, 1950 Va. LEXIS 177 (1950).

    Question determinable in either declaratory judgment proceeding or another pending proceeding. —

    Where a declaratory judgment proceeding and another pending proceeding in which relief is sought involve the identical question, the court may decide the issue in either proceeding, and is under no compulsion to do so in the declaratory judgment proceeding rather than in the other. And it having been determined that the matter can be decided in the other proceeding, the declaratory judgment proceeding serves no further purpose, and may be dismissed. Andrews v. Universal Moulded Prods. Corp., 189 Va. 527 , 53 S.E.2d 837, 1949 Va. LEXIS 195 (1949).

    Exhaustion of administrative remedies required. —

    When a landowner claims a zoning ordinance is invalid as applied to his specific property, he must exhaust adequate and available administrative remedies before proceeding by declaratory judgment to make a direct judicial attack on the applied constitutionality of the ordinance. Gayton Triangle Land Co. v. Board of Supvrs., 216 Va. 764 , 222 S.E.2d 570, 1976 Va. LEXIS 199 (1976).

    But not where useless. —

    Landowner challenging the validity of a zoning ordinance as applied to his property need not apply for a variance before bringing his declaratory judgment action if the challenged restrictions or obligations could not be remedied by variance. Gayton Triangle Land Co. v. Board of Supvrs., 216 Va. 764 , 222 S.E.2d 570, 1976 Va. LEXIS 199 (1976).

    Not proper where judgment as to disputed fact is determinative of issues. —

    Where a declaratory judgment as to a disputed fact would be determinative of issues, rather than a construction of definite stated rights, status, and other relations, commonly expressed in written instruments, the case is not one for declaratory judgment. Williams v. Southern Bank, 203 Va. 657 , 125 S.E.2d 803, 1962 Va. LEXIS 202 (1962); Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519, 1970 Va. LEXIS 263 (1970).

    Determining ownership of land claimed by State. —

    A declaratory judgment proceeding is an adequate means for determining the ownership of land which the State Highway Commissioner believes to be land of the State. Gilliam v. Harris, 203 Va. 316 , 124 S.E.2d 188, 1962 Va. LEXIS 145 (1962).

    Res judicata. —

    Under this section and § 8.01-186 , where a prior action was instituted to construe a will and to have the court determine who was entitled to the rents, issues, and profits from a particular house after a particular event, no other issue being presented, the question of the rental value of the house was not barred from consideration in a subsequent action under the doctrine of res judicata. Winborne v. Doyle, 190 Va. 867 , 59 S.E.2d 90, 1950 Va. LEXIS 177 (1950).

    Particular instances. —

    For case determining rights under conflicting licenses for brush blinds, see Brumley v. Grimstead, 170 Va. 340 , 196 S.E. 668 , 1938 Va. LEXIS 192 (1938).

    For case as to sufficiency of the bill to state a case for a declaratory judgment concerning the right to an interpretation of an arbitration award and order of the War Labor Board, see Portsmouth Restaurant Ass'n v. Hotel & Restaurant Employees Alliance, Local 807, 183 Va. 757 , 33 S.E.2d 218, 1945 Va. LEXIS 223 (1945).

    A proceeding to determine whether the petitioners had the right to employ in their mercantile establishment a registered optometrist under the provisions of former Title 54, Chapter 14, of the Code presented an “antagonistic assertion and denial of right” and was proper case for a declaratory judgment. Cowardin v. Burrage, 195 Va. 54 , 77 S.E.2d 428, 1953 Va. LEXIS 175 (1953).

    Petitioners as users of a district sewerage system, had no such proprietary interest in the system under the Sanitary District Law, §§ 21-112.22 through 21-140.3 , as to entitle them to challenge the action of the county board of supervisors in increasing rates in order to secure funds to build a treatment plant. Abbott v. Board of Supvrs., 200 Va. 820 , 108 S.E.2d 243, 1959 Va. LEXIS 173 (1959).

    It may well be that after a decision is made by the board of zoning appeals which aggrieves a taxpayer, the elements would then exist to support a declaratory judgment action in which the authority of the board could be challenged. But that is not to say that such elements exist where the board has not made any decision. City of Fairfax v. Shanklin, 205 Va. 227 , 135 S.E.2d 773, 1964 Va. LEXIS 170 (1964).

    Since there was no specific case regarding apartment usage within the city involved, plaintiff’s case had to depend, of necessity, upon future or speculative facts, that is to say, that a special use permit might, someday, be granted by the board which might aggrieve the plaintiff. Under these circumstances, the motion for declaratory judgment, upon its face, merely sought an advisory opinion, or a decision upon a moot question, or an answer to a speculative inquiry. City of Fairfax v. Shanklin, 205 Va. 227 , 135 S.E.2d 773, 1964 Va. LEXIS 170 (1964).

    When a justiciable controversy exists between two insurance companies as to their obligations under the terms of their respective policies, a declaratory judgment proceeding may be maintained by one of the companies against the other. Criterion Ins. Co. v. Grange Mut. Cas. Co., 210 Va. 446 , 171 S.E.2d 669, 1970 Va. LEXIS 142 (1970); Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519, 1970 Va. LEXIS 263 (1970).

    Where the plaintiffs sought, in essence, the recovery of a money judgment, a sum certain, and various claims and rights asserted had all accrued and matured, and the wrongs had been suffered, when their petition for a declaratory judgment was filed, the trial court erred in hearing the action pursuant to the declaratory judgment statutes. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519, 1970 Va. LEXIS 263 (1970).

    If an ordinance is unreasonable and unconstitutional in its entirety and the result of such unreasonableness is to confiscate plaintiff’s property or to discriminate against it, then an action for a declaratory judgment lies. Board of Supvrs. v. Rowe, 216 Va. 128 , 216 S.E.2d 199, 1975 Va. LEXIS 259 (1975).

    Officer may mandamus himself. —

    Under this article the Auditor of Public Accounts, as an individual, may prosecute a writ of mandamus against himself as Auditor. Moore v. Moore, 147 Va. 460 , 137 S.E. 488 , 1927 Va. LEXIS 316 (1927).

    B.Actual Controversy.

    Purpose of words “actual controversy” and “actual antagonistic assertion and denial of right.” —

    In this and the following sections of this chapter the words “actual controversy” and “actual antagonistic assertion and denial of right” were intended to prevent the consideration of moot questions by the court, and not to deprive the courts of jurisdiction to enter a declaratory decree where there is actual antagonistic assertion and denial of right. Patterson v. Patterson, 144 Va. 113 , 131 S.E. 217 , 1926 Va. LEXIS 234 (1926).

    Actual controversy test. —

    The test of the applicability of this article is the determination of the existence of an actual controversy. The manifest intention of the legislature was to provide for a speedy determination of actual controversies between citizens, and to prune, as far as is consonant with right and justice, the dead wood attached to the common-law rule of “injury before action” and a multitude of suits to establish a single right. Neal v. State-Planters Bank & Trust Co., 166 Va. 158 , 184 S.E. 203 , 1936 Va. LEXIS 178 (1936) (see Yukon Pocahontas Coal Co. v. Ratliff, 175 Va. 366 , 8 S.E.2d 303 (1940); Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519 (1970)).

    There must be “actual controversy” based on “actual antagonistic assertion and denial of right.” —

    It must appear that there is an “actual controversy” existing between the parties, based upon an “actual antagonistic assertion and denial of right,” before the application for declaratory judgment can be entertained and an adjudication made. City of Fairfax v. Shanklin, 205 Va. 227 , 135 S.E.2d 773, 1964 Va. LEXIS 170 (1964); Lynchburg Traffic Bureau v. Norfolk & W. Ry., 207 Va. 107 , 147 S.E.2d 744, 1966 Va. LEXIS 194 (1966); Virginia Historic Landmarks Comm'n v. Board of Supvrs., 217 Va. 468 , 230 S.E.2d 449, 1976 Va. LEXIS 306 (1976).

    Controversy is not created by taking a position and then challenging the government to dispute it. City of Fairfax v. Shanklin, 205 Va. 227 , 135 S.E.2d 773, 1964 Va. LEXIS 170 (1964).

    Controversy must be one that is justiciable, that is, where specific adverse claims, based upon present rather than future or speculative facts, are ripe for judicial adjustment. City of Fairfax v. Shanklin, 205 Va. 227 , 135 S.E.2d 773, 1964 Va. LEXIS 170 (1964); Virginia Historic Landmarks Comm'n v. Board of Supvrs., 217 Va. 468 , 230 S.E.2d 449, 1976 Va. LEXIS 306 (1976).

    To invoke the jurisdiction of the court under this section, the controversy must be one that is justiciable; that is, where specific adverse claims based upon present rather than future or speculative facts are ripe for judicial adjustment. Board of Supvrs. v. Rowe, 216 Va. 128 , 216 S.E.2d 199, 1975 Va. LEXIS 259 (1975).

    Before an action may be maintained under the act there must be a justiciable controversy, for the rendering of advisory opinions is not a part of the function of the judiciary in Virginia. Criterion Ins. Co. v. Grange Mut. Cas. Co., 210 Va. 446 , 171 S.E.2d 669, 1970 Va. LEXIS 142 (1970); Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519, 1970 Va. LEXIS 263 (1970).

    Controversy may be shown by pleading or evidence. —

    Whether or not there is a controversy is a question of fact, which may be shown by the pleadings or by the evidence. Yukon Pocahontas Coal Co. v. Ratliff, 175 Va. 366 , 8 S.E.2d 303, 1940 Va. LEXIS 179 (1940).

    Allegations showing actual controversy. —

    Where complaints alleged that defendants were dividing the surface of a portion of the land claimed under the deed, erecting and permitting the erection of buildings and other improvements thereon that were inconsistent with mining purposes, and destroying the rights, privileges and easements of complainants, and excluding them from the use of the surface of the land, in violation of the rights, privileges and easements expressly and impliedly conveyed to them by the deed, and that they had no plain, adequate and complete relief at law, such allegations showed that there was an actual controversy and an actual antagonistic assertion or denial of rights between the parties. Yukon Pocahontas Coal Co. v. Ratliff, 175 Va. 366 , 8 S.E.2d 303, 1940 Va. LEXIS 179 (1940).

    When a property owner alleges that a zoning ordinance creates discriminatory, arbitrary and capricious classifications bearing no substantial relation to the public health, safety or welfare, or that a zoning ordinance imposes land use restrictions or affirmative land use obligations so unreasonable as to constitute a “taking” of property without compensation or due process of law or that a zoning ordinance is otherwise unconstitutional and that he has suffered damage to his property located in a district affected by such ordinance, he has stated a case of actual controversy within the meaning of this section and one that is ripe for judicial adjustment. Board of Supvrs. v. Rowe, 216 Va. 128 , 216 S.E.2d 199, 1975 Va. LEXIS 259 (1975).

    Failed to show actual controversy. —

    In a case regarding whether a student at a public high school, by and through his parents as next friends, had standing to sue a school board based on his alleged distress over potential repercussions from the school board’s expansion of its anti-discrimination and anti-harassment policy, the circuit court concluded that the complaint failed to set forth an actual controversy. Plaintiffs did not articulate unique injuries compared to that of the general public and thus could not claim taxpayer standing. Lafferty v. Sch. Bd. of Fairfax Cnty., 293 Va. 354 , 798 S.E.2d 164, 2017 Va. LEXIS 58 (2017).

    CIRCUIT COURT OPINIONS

    Construction of declaration of covenant and statutes. —

    Declaratory judgment under § 8.01-184 was an appropriate vehicle for homeowners’ claims against the homeowners’ association for raiding the association’s capital reserves to pay its attorney’s fees, in violation of § 55-514.1, because the controversy required the interpretation of multiple instruments and two statutes, and a determination would help the parties’ understanding in the future. Farran v. Olde Belhaven Towne Owners' Ass'n, 83 Va. Cir. 286, 2011 Va. Cir. LEXIS 114 (Fairfax County Aug. 24, 2011).

    Controversy not ripe for adjudication. —

    Issue of the priority between two insurance policies was not ripe for adjudication, and declaratory judgment was inappropriate, because there had not been a claim under the policies at issue or any denial of coverage, and hence there was no justiciable controversy. Atkinson v. Penske Logistics, L.L.C., 61 Va. Cir. 223, 2003 Va. Cir. LEXIS 231 (Norfolk Feb. 19, 2003).

    Property owner’s case against a home owner’s association board was not ripe for adjudication where the pleadings as a whole did not contain facts indicating an actual controversy that would justify an exercise of the court’s discretion; the owner made no claim that the board took any specific action against him or against other property owners in the subdivision, nor did he point to any action on his part that put him in conflict with the board. The owner did not seek to have the circuit court declare the rights of the parties in order to settle a controversy between him and the board over some pending transaction; rather, he asked the court to provide guidance to the board as to the proper application of a covenant pertaining to the use of subdivision roads. Pedigo v. Flattop Mt. Landowners Ass'n, 74 Va. Cir. 422, 2007 Va. Cir. LEXIS 241 (Greene County Dec. 14, 2007).

    Separation of powers issue. —

    State senator’s motion for a temporary injunction under § 8.01-620 et seq. to enjoin the lieutenant governor from casting any tie-breaking vote was denied because the senator was unlikely to be unsuccessful on the merits of his declaratory judgment action due to separation of powers under Va. Const. art. III, § 1; the circuit court cannot intervene in the normal operating procedures of the senate and enjoin one of the highest officials of the Commonwealth from performing his or her constitutional duties, and the power of an injunction or a declaratory judgment action cannot be used to force parties in disagreement to negotiate a compromise. McEachin v. Bolling, 84 Va. Cir. 76, 2011 Va. Cir. LEXIS 189 (Richmond Dec. 16, 2011).

    State senator’s motion for a temporary injunction under § 8.01-620 et seq. to enjoin the lieutenant governor from casting any tie-breaking vote was denied because the senator was unlikely to be unsuccessful on the merits of his declaratory judgment action due to ripeness; no action had been taken by the lieutenant governor or the General Assembly, and for the circuit court to intervene before the legislative process had even begun would be tantamount to issuing an impermissible advisory opinion. McEachin v. Bolling, 84 Va. Cir. 76, 2011 Va. Cir. LEXIS 189 (Richmond Dec. 16, 2011).

    Dillon’s Rule. —

    City’s demurrer to the treasurer’s complaint was denied as the treasurer sufficiently alleged that the council violated Dillon’s Rule by enacting an ordinance contrary to the city’s charter. Pritchett v. City of Petersburg City Council, 103 Va. Cir. 270, 2019 Va. Cir. LEXIS 623 (Petersburg Oct. 22, 2019).

    Case moot where property owners had withdrawn conditional use permit amendment application. —

    Property owners who had granted easements to a mining company and agreed to support the company’s applications for conditional use permits, had withdrawn their application in opposition to the conditional use permits. Therefore, the owners’ claims for declaratory judgment that their conditional use permit amendment application did not breach the agreements were moot, as were the mining company’s claims seeking to enjoin the owners from seeking the amendment. Martin Marietta Materials, Inc. v. Sletten, 81 Va. Cir. 1, 2010 Va. Cir. LEXIS 282 (Hanover County Jan. 11, 2010).

    Controversy ripe for adjudication. —

    Relatives’ motions to dismiss and quash a lawyer’s declaratory judgment action under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., seeking a declaratory judgment regarding his rights and responsibilities under powers of attorney were denied because an actual controversy existed since the lawyer alleged that his authority under the powers of attorney was in dispute, and he sought for a declaratory judgment that defined the parties’ rights and responsibilities under the powers of attorney. Tabet v. Sheban, 83 Va. Cir. 89, 2011 Va. Cir. LEXIS 75 (Fairfax County June 9, 2011).

    Validity of a provision in an enrollment contract between a parent and a school, which entitled the school to collect attorneys’ fees and costs from the parent without limitation in any action arising out of or related to the contract, irrespective of who initiated or prevailed in the suit, was ripe for adjudication because the parent’s filing of a declaratory judgment lawsuit triggered the applicability of the contract clause sought to be declared unlawful in the suit. McIntosh v. Flint Hill Sch., 100 Va. Cir. 32, 2018 Va. Cir. LEXIS 321 (Fairfax County Sept. 17, 2018), aff'd, No. 181678, 2020 Va. Unpub. LEXIS 1 (Va. Jan. 2, 2020).

    Declaration of speculative future circumstances. —

    Where a seller requested the court to set a reasonable time for the performance of the parties’ contract, declaratory judgment was improper since the adjudication would necessarily be based, at least in part, on speculative future circumstances; the buyer’s demurrer was sustained as to that issue. Garnett v. Medicorp Props., 62 Va. Cir. 450, 2003 Va. Cir. LEXIS 162 (Spotsylvania County Aug. 22, 2003).

    Declarations concerning insurance coverage. —

    Insurer was not obligated to provide coverage, nor did it have a duty to defend, the decedent’s administrator in a negligence action filed by guardian arising out of a car accident in which the decedent died and the guardian’s daughter was injured, as the guardian failed in her burden inproving that the decedent was a resident of the insured’s household, albeit the fact that the decedent was driving the insured’s vehicle, which the insured had not granted him permission to do. Nationwide Mut. Ins. Co. v. Erbe, 66 Va. Cir. 451, 2001 Va. Cir. LEXIS 528 (Amherst County Jan. 17, 2001).

    When a minor injured party whose mother had legal custody of him but who regularly visited his father in the home of the injured party’s grandfather sought underinsured motorist coverage under policies issued to his father and grandfather, he could not be considered a member of the households of his father or grandfather for purposes of such coverage because his membership in those households was not permanent but consisted of visits. Brogdon v. Clark, 63 Va. Cir. 85, 2003 Va. Cir. LEXIS 341 (Richmond Aug. 19, 2003).

    Demurrers were overruled because a justiciable controversy existed, and a declaratory judgment was appropriate; an employee’s cross-claims against a barge owner’s insurer and an excess insurer grew out of a petition to intervene in his tort action, which was filed by a charterer’s insurer, because the owner’s insurer issued a liability policy that could be implicated in the tort action, and if the damages exhausted the policy, the excess insurer’s would be triggered. Riverport Ins. Co. v. C&M Indus., 87 Va. Cir. 281, 2013 Va. Cir. LEXIS 177 (Norfolk Nov. 26, 2013).

    Demurrers were overruled because a justiciable controversy existed; because a barge owner was a party to the controversy regarding coverage between its employee and its insurer, and a charterer was a party to the controversy regarding coverage between the employee and its insurer, if a justiciable controversy existed for the employee’s cross-claims against the owner’s insurer, it was necessary that the owner and charterer be bound to any declaratory judgment action. Riverport Ins. Co. v. C&M Indus., 87 Va. Cir. 281, 2013 Va. Cir. LEXIS 177 (Norfolk Nov. 26, 2013).

    Demurrers were overruled because a justiciable controversy existed, and a declaratory judgment was appropriate; an employee stated a colorable claim and alleged that he sought a determination of his rights under various insurance policy instruments. Riverport Ins. Co. v. C&M Indus., 87 Va. Cir. 281, 2013 Va. Cir. LEXIS 177 (Norfolk Nov. 26, 2013).

    Demurrers were overruled because a justiciable controversy existed, and a declaratory judgment was appropriate since determination of coverage served the purpose of the Virginia Declaratory Judgment Act so the parties could be guided in their future conduct in relation to each other and avoid the risk of action that would jeopardize their respective interests; an employe sought declaratory judgment to determine his rights under insurance policies to guide the future conduct of the parties. Riverport Ins. Co. v. C&M Indus., 87 Va. Cir. 281, 2013 Va. Cir. LEXIS 177 (Norfolk Nov. 26, 2013).

    Declarations concerning special exception permit. —

    Circuit court declared that the denial of a business owner’s application for a special exception permit was not arbitrary, capricious and unreasonable because both quantitatively and qualitatively the information before the board of supervisors made approval or denial of the application fairly debatable in that reasonable persons could have come to different conclusions based on what the board could properly consider; the board had evidence before it that validly supported its conclusion. Jennings v. Bd. of Supervisors of Northumberland Cty., 97 Va. Cir. 341, 2009 Va. Cir. LEXIS 2065 (Northumberland County Sept. 4, 2009), aff'd, 281 Va. 511 , 708 S.E.2d 841, 2011 Va. LEXIS 85 (2011).

    Circuit court declared that the denial of a business owner’s application for a special exception permit was not arbitrary, capricious and unreasonable because the zoning ordinance was not invalid for failure to set forth standards for the board to apply in issuing special exceptions. Jennings v. Bd. of Supervisors of Northumberland Cty., 97 Va. Cir. 341, 2009 Va. Cir. LEXIS 2065 (Northumberland County Sept. 4, 2009), aff'd, 281 Va. 511 , 708 S.E.2d 841, 2011 Va. LEXIS 85 (2011).

    Validity of right of first refusal. —

    Pursuant to § 8.01-184 , the trial court declared that a right of first refusal in the articles of incorporation of a company was void ab initio, as this limitation on the transfer of stock was an unreasonable restraint, and also violated the rule against perpetuities. Frazer v. Millington, 63 Va. Cir. 458, 2003 Va. Cir. LEXIS 256 (Fairfax County Dec. 15, 2003).

    Standing generally. —

    Demurrers and pleas in bar filed by a property owner and a county board of supervisors were denied in part and granted in part because, while a church had standing to bring a declaratory judgment proceeding as a party to the original easement contract at issue, the neighbors’ membership in a homeowner’s association was too tenuous to confer standing on them where it was not a party to the suit and the alleged harm to them was no different than that of any other member of the general public. Tran v. Fairfax County Bd. of Supervisors, 87 Va. Cir. 344, 2013 Va. Cir. LEXIS 140 (Fairfax County Dec. 18, 2013).

    First, there must be an actual controversy to which the board of supervisors is a party, and the court is not empowered to render merely advisory opinions; second, declaratory relief can only be exercised if it will relieve the board from the risk of the board of zoning appeals taking undirected action which would jeopardize the lawful and legitimate interests of the board. Bd. of Supervisors v. Bd. of Zoning Appeals, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

    Neither the “aggrieved party” standard nor the “justiciable interest” standard is broader nor narrower than the other, and thus the board of supervisors can qualify as an “aggrieved person” and may have standing in a declaratory judgment action; however, although the board may have standing, it does not automatically have standing, and the test to be applied to whether the board of supervisors has standing to pray for declaratory relief against the board of zoning appeals is fact-dependent. Bd. of Supervisors v. Bd. of Zoning Appeals, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

    Alleged procedural transgressions in the decision-making process of the board of zoning appeals may be challenged by declaratory judgment action by any aggrieved party as a justiciable claim when they underlie, but are not identical to, the merits decision separately appealed, for each adjudicative process addresses distinct claims for relief not directly overlapping in the resulting judgment thereof. Bd. of Supervisors v. Bd. of Zoning Appeals, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

    County board of supervisors had standing to challenge the actions of a county board of zoning appeals (BZA) through declaratory relief because it had “aggrieved party” status by virtue of the action decided against it, and declaratory relief would determine the lawfulness of the process the BZA used; no other mode of procedure was available to the board of supervisors to challenge directly and reach the course of the BZA procedure employed and the question of its claimed authority to reconsider its decisions. Bd. of Supervisors v. Bd. of Zoning Appeals, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

    Standing to challenge ordinance. —

    Residential landlords were entitled to bring a declaratory judgment action even though they did not allege that the ordinance they sought to invalidate had actually been applied to them as they had a direct interest in the application of the ordinance since the ordinance applied to the rental of their properties. Logie v. Town of Front Royal, 58 Va. Cir. 527, 2002 Va. Cir. LEXIS 174 (Warren County June 19, 2002).

    Developer had standing to determine status of landowners’ easement over dedicated property. —

    Although a developer no longer owned property it had dedicated to the county, where the dedicated property had become part of a public road and the county would not release a bond posted to ensure the developer’s expansion of that road, the developer had standing to seek a declaratory judgment that the landowners’ easement over the dedicated property had expired; release of the bond was tied to the termination of that easement. Basheer/Edgemoore-Millwood, LLC v. Sizdahkhani, 62 Va. Cir. 28, 2003 Va. Cir. LEXIS 84 (Fairfax County Apr. 28, 2003).

    Court not to render advisory opinions. —

    Although a property owner satisfied the standing requirement necessary for a grant declaratory relief under §§ 8.01-184 , 8.01-191 because the owner’s claim related to restrictions on development of the owner’s land, was not merely speculative and the owner did not need to exhaust its administrative remedies, while the owner’s subdivision application was pending, the owner was estopped from proceeding with the declaratory action since it rendered the need for court intervention illusory and advisory. Broad Run Vill., L.C. v. Loudoun County Bd. of Supervisors, 59 Va. Cir. 96, 2002 Va. Cir. LEXIS 331 (Loudoun County May 8, 2002).

    In a declaratory judgment action filed by a landowner against his neighbors regarding the rights and duties in reference to the maintenance of an easement located in their subdivision, the circuit court had the authority to allow the landowner to: (1) remove all trees six inches in diameter or smaller or tree limbs that could hang over on the roadway during snow or ice; (2) keep open ditches parallel to the roadway for water drainage; (3) keep open or replace existing culverts across the roadway or driveways; and (4) make minor improvements to the roadway such as grading and spreading additional gravel; but, the court declined an invitation to set forth specific standards of future maintenance. Saunders v. Coleman, 65 Va. Cir. 9, 2004 Va. Cir. LEXIS 283 (Fauquier County Mar. 30, 2004).

    Where a property owner asked the circuit court first to declare the rights of the parties and then to grant guidance to a home owner’s association board as to the proper application of a covenant insofar as the use of subdivision roads was concerned, that request for relief sought a legal opinion that would, in effect, tell the association what to do and what not to do with the roads. That requested relief amounted to precisely the kind of advisory opinion that was not permitted under the Declaratory Judgment Statute. Pedigo v. Flattop Mt. Landowners Ass'n, 74 Va. Cir. 422, 2007 Va. Cir. LEXIS 241 (Greene County Dec. 14, 2007).

    Relatives’ motions to dismiss a lawyer’s action under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., seeking a declaration regarding the propriety of his actions taken under powers of attorney, was granted because the declaratory relief sought would require the circuit court to render an advisory opinion. Tabet v. Sheban, 83 Va. Cir. 89, 2011 Va. Cir. LEXIS 75 (Fairfax County June 9, 2011).

    Actual controversy. —

    Declaratory judgment action by traffic violators who challenged the constitutionality of the remedial driver fees in § 46.2-206.1 withstood a dismissal challenge on the basis of sovereign immunity, as at least two of the violators had been convicted and as such, they had a direct and justiciable interest in the subject matter of the action; there was an actual controversy and as the only issues related to the constitutionality of the legislation and nothing more was sought from the Commonwealth, pursuant to §§ 8.01-184 and 8.01-191 the action was viable. Minter v. Commonwealth, 74 Va. Cir. 336, 2007 Va. Cir. LEXIS 194 (Roanoke County Nov. 6, 2007).

    When an employee sought a declaratory judgment that the employee’s non-compete agreement with the employee’s employer was unenforceable, no actual controversy was alleged because (1) the employee did not state an intention to breach the agreement, (2) the employer did not state an intention to enforce the agreement, (3) the agreement did not contain a liquidated damages provision that might have excused any requirement to breach the agreement to establish an actual controversy, and (4) the employer’s filing of a demurrer as to the claim did not, alone, establish an actual controversy. Tomlin v. IBM, Corp., 84 Va. Cir. 280, 2012 Va. Cir. LEXIS 26 (Fairfax County Feb. 13, 2012).

    Employee could bring an action seeking a declaratory judgment regarding the existence of coverage under a given insurance policy because the action did not merely seek a scope of employment determination, and there existed an underlying tort action in which the employer could be impleaded as a third party or subjected to a subsequent action for contribution and the gravamen of the petition was a determination of parties’ rights under the written policy of insurance issued by the insurer to the employer, which inherently included the scope of employment issue, for which determination the employer was a necessary party. Pittman v. Verizon Servs. Corp., 97 Va. Cir. 298, 2017 Va. Cir. LEXIS 353 (Chesapeake Dec. 28, 2017).

    Corporation’s claim set forth a proper matter for judicial declaration because it presented a case of actual controversy, and a declaration regarding the parties’ rights to control a joint venture under contracts constituted a binding adjudication of their rights; if an amendment trigger controlled, the corporation controlled the joint venture, and the dissolution would be found to have been proper, but if the trigger did not occur, the parties’ would have joint control of the joint venture. ATK Space Sys. v. US Space LLC, 99 Va. Cir. 46, 2018 Va. Cir. LEXIS 314 (Loudoun County Jan. 19, 2018).

    Because the controversy was delaying the ultimate resolution of the transfer of marital property, declaratory relief was available; as there was clearly a dispute between the parties as to whether the marital settlement agreement SA and final order of divorce required the property to be sold to a third party, there was an actual controversy. Hutchens v. Hutchens, 2020 Va. Cir. LEXIS 194 (Loudoun County Oct. 20, 2020).

    No justiciable controversy. —

    Second town failed to state a claim upon which relief could be granted in its suit for declaratory judgment because there was no actual controversy upon which declaratory judgment could be based; the first town would still not be found to have no particular boundary on its western end, but the former metes and bounds description would stand, and the first town’s boundary would be as described originally by metes and bounds. Town of Cedar Bluff v. Town of Richlands, 92 Va. Cir. 438, 2010 Va. Cir. LEXIS 329 (Tazewell County Aug. 16, 2010).

    Property owners who alleged in their declaratory judgment actions that a subdivision ordinance passed by a county altered the use and marketability of their properties did not establish an actual, justiciable controversy that survived demurrers as to standing in their actions pursuant to § 8.01-184 , as the limitations from the ordinance were only possibilities and general problems. Barnes v. Orange County BOS, 78 Va. Cir. 392, 2009 Va. Cir. LEXIS 223 (Orange County June 22, 2009).

    Declaratory judgment claim was dismiss because no actual controversy exists between the parties; loan documents, a swap agreement, and guarantees were binding, and they contained clear and unambiguous language. Sun Hotel v. Summitbridge Credit Invs. III, LLC, 86 Va. Cir. 189, 2013 Va. Cir. LEXIS 4 (Fairfax County Jan. 23, 2013).

    Circuit court did not have the authority to exercise jurisdiction over a substitute teacher’s requests for declaratory relief because the teacher failed to allege a justiciable controversy; the teacher did not allege that the county public schools failed to interpret § 22.1-296.1 as an affirmative obligation regarding the language required in their employment application, and there was no statutory avenue for the teacher to challenge a nonrenewal of her contract. Flinn v. Fairfax County Sch. Bd., 87 Va. Cir. 262, 2013 Va. Cir. LEXIS 102 (Fairfax County Nov. 14, 2013).

    Circuit court found it unnecessary to exercise its declaratory judgment jurisdiction because whether sovereign immunity barred the declaratory action was moot. Cty. of Lancaster v. Latimore, 97 Va. Cir. 401, 2013 Va. Cir. LEXIS 228 (Lancaster County May 31, 2013).

    Purchaser’s demurrer on an assignee’s declaratory judgment request was sustained with prejudice where the true object of the request was to seek a determination as to whether the purchaser breached the purchase agreement by not allocating any portion of the floor area ratio to the assignee, and since there was no assertion of future conduct that required a judicial determination, granting a declaration would have resulted in an advisory opinion. RECP IV WG Land Investors, LLC v. Capital One Bank (USA), NA, 93 Va. Cir. 282, 2016 Va. Cir. LEXIS 142 (Fairfax County May 5, 2016), aff'd, 295 Va. 268 , 811 S.E.2d 817, 2018 Va. LEXIS 33 (2018).

    Circuit court would not make a declaration regarding completion bonuses because there was no actual justiciable controversy; there were no completion bonuses in dispute, and a contractor agreed it had to pay them if and when they arose. Parsons Gov't Servs. v. Bechtel Nat'l, Inc., 2016 Va. Cir. LEXIS 214 (Fairfax County Oct. 12, 2016).

    Denial of any motion by a citizen for declaratory judgment when the citizen challenged the Governor of Virginia’s announcement that the Governor would remove and relocate a statue of Robert E. Lee was appropriate because the citizen did not articulate a legally viable cause of action as both of the citizen’s substantive claims for violation of a statute and for covenant in gross failed as a matter of law. Gregory v. Northam, 2020 Va. Cir. LEXIS 182 (Richmond Aug. 3, 2020), aff'd, 300 Va. 226 , 862 S.E.2d 273, 2021 Va. LEXIS 95 (2021).

    No specific adverse claim alleged. —

    Declaratory relief was not available to a homeowner since the homeowner did not allege specific adverse claims as it merely alleged: (1) that a homeowners’ association had expressed a view that subdivision roads were open to the public, with which the homeowner disagreed; (2) that the association took the “position” that it had the authority to enter into agreements with non-lot owners granting them permission to use the subdivision roads; (3) that there had been a violation of the restrictive covenants because the association entered into agreements with non-lot owners granting such permission; and (4) that the association improperly acted during the 2000 hunting season; the complaint did not allege any actions taken when the complaint was filed, and did not allege any controversy as to the use of the subdivision roads. Further, the homeowner could not produce any agreement for the use of the subdivision roads with a non-lot owner. Pedigo v. Flattop Mt. Landowners Ass'n, 73 Va. Cir. 26, 2007 Va. Cir. LEXIS 54 (Greene County May 4, 2007), dismissed, 74 Va. Cir. 422, 2007 Va. Cir. LEXIS 241 (Greene County Dec. 14, 2007).

    For Declaratory Judgment Act purposes, plaintiff alleged there was an actual controversy between the parties as to the ownership of stock, but plaintiff had not sufficiently identified and specified what the conflicting claims were, and thus the objection to this count was sustained with leave to amend. Johnson v. MBA Consulting Servs., 97 Va. Cir. 176, 2017 Va. Cir. LEXIS 329 (Fairfax County Nov. 21, 2017).

    Personal jurisdiction established. —

    Relatives’ motions to dismiss and quash a lawyer’s declaratory judgment action under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., seeking a declaratory judgment regarding his rights and responsibilities under powers of attorney were denied because the lawyer established a prima facie case of personal jurisdiction over the relatives since the relatives executed the powers of attorney in Virginia and returned to Virginia to meet again with the lawyer; by voluntarily creating a continuing relationship with the lawyer, who maintained an office and performed work for the relatives in Virginia, the relatives purposefully availed themselves of the privilege of conducting activities within the Commonwealth, and the relatives’ contacts with Virginia were such that they should have reasonably anticipated being haled into court in Virginia if any controversies arose under the powers of attorney. Tabet v. Sheban, 83 Va. Cir. 89, 2011 Va. Cir. LEXIS 75 (Fairfax County June 9, 2011).

    Declaratory judgment not inappropriate where disputed issue could be determined in future litigation. —

    State court allowed a plaintiff to maintain a suit for declaratory relief against the other car’s user, lessee, lessee’s parent corporation, and owner/lessor and insurers to determine the coverage to which he was entitled from each insurer. The suit could be maintained because it involved a justiciable issue even though that meant that the court had to decide whether the car user was an employee of other defendants, which was a fact issue that was critical in the federal case. Nottingham v. Caviggiola, 67 Va. Cir. 86, 2005 Va. Cir. LEXIS 183 (Norfolk Feb. 18, 2005).

    Other remedies available. —

    Defendant’s counterclaim for a declaratory judgment was dismissed because even if the court held in her favor that her statements were protected expressions of opinion that entitled her to attorney fees under the Anti-SLAPP statute, she would receive the relief at the same time as receiving the same relief under her anti-SLAPP defense. Depp v. Heard, 107 Va. Cir. 80, 2021 Va. Cir. LEXIS 1 (Fairfax County Jan. 4, 2021).

    Breach of contract action for lost profit monetary damages. —

    Declaratory judgment relief did not lie under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., where a subcontractor claimed that it had incurred, and indeed was suing for, lost profit monetary damages arising from a contractor’s alleged breach of the subcontract agreement between the parties. GiniCorp v. Capgemini Gov't Solutions, LLC, 2007 Va. Cir. LEXIS 5 (Fairfax County Jan. 2, 2007).

    Recission of franchise agreement denied. —

    Trial court found that a franchisee’s purported recission of a franchise agreement based on mutual mistake of fact pertaining to state licensure requirements, was not effective and the franchise agreement was not rescinded. Rojiani v. Griswold Special Care of Va., 2003 Va. Cir. LEXIS 33 (Roanoke Feb. 14, 2003).

    Construction of an employment contract. —

    When an employer sued a former employee for a declaration that the employee did not have a cause of action against the employer related to her employment contract, it was not entitled to a declaration that the employee did not have a cause of action arising out of her employment or relating to any alleged unpaid commissions, as such a declaration would amount to a determination of issues rather than a construction of stated rights, but the employer was entitled to a declaration that the employee’s position did not entitle her to commissions, as, due to the employee’s failure to answer after being properly served, it was undisputed that she was never promoted to a position which entitled her to commissions, so the contract did not obligate the employer to pay the employee any commissions. ePlus Inc. v. Chan, 2003 Va. Cir. LEXIS 100 (Fairfax County June 30, 2003).

    Standing to challenge a non-compete. —

    Dentist had standing to challenge his non-compete agreements with a corporation through a bill of complaint seeking a declaratory judgment declaring that the agreements were overbroad and unenforceable and alleging that he wished to violate the agreements; the corporation demurred, implying that it intended to enforce the agreements. Graves v. Ciraden, Inc., 65 Va. Cir. 127, 2004 Va. Cir. LEXIS 152 (Fairfax County June 9, 2004).

    Non-competition agreement declared unenforceable. —

    Insurance agent’s action seeking a declaration pursuant to § 8.01-184 that a non-competition agreement in an employment contract with a former employer was null and void was granted, as the agreement’s time limitation was so ambiguous that it appeared as though a meeting of the minds never occurred, and the agreement was too broad and vague in scope to be binding. Totten v. Employee Benefits Mgmt., 60 Va. Cir. 342, 2002 Va. Cir. LEXIS 401 (Roanoke County Nov. 12, 2002).

    Declaratory judgment interpreting certain non-competition provisions in employee agreements was not warranted because the noncompetition provisions were overbroad and facially invalid where they lacked geographic limitations, which was per se unreasonable. Innovative Sys. & Solutions, Inc. v. Hannah, 75 Va. Cir. 363, 2008 Va. Cir. LEXIS 270 (Norfolk July 31, 2008).

    Declaratory judgment appropriate in action between landlord and tenant. —

    A tenant’s motion for a demurrer pursuant to § 8.01-273 as to a landlord’s declaratory judgment action pursuant to § 8.01-184 was denied, because § 8.01-191 stated that the declaratory judgment statute was remedial in nature and had to be liberally interpreted, and the declaratory judgment statute permitted a party like the landlord to seek the court’s guidance on a landlord/tenant relationship, the pleadings stated a cause of action upon which relief could be granted, and the claims of each party were adverse to the other and were ripe for adjudication. Truslow, Inc. v. Gibbs, 59 Va. Cir. 472, 2002 Va. Cir. LEXIS 357 (Richmond Oct. 3, 2002).

    Action regarding sublease. —

    In a lessor’s declaratory judgment action against a lessee’s predecessor in interest, the court held that the predecessor was not liable to the lessor after it entered into a second lease on the same premises with the lessee, despite the lessor’s contention that it was exercising its self-help rights to mitigate its damages under the terms of the first lease, where the lessor: (1) failed to provide the predecessor with any written notice of default; (2) failed to show that the predecessor abandoned the premises; and (3) the lessor could not proceed under the theory that it could re-let the premises to mitigate his damages without accepting a surrender of the property; thus, the court held that entrance into a new lease on the same premises effected a surrender of the original lease by operation of law. Chippenham Square Acquistions, LLC v. Stop & Shop Supermarket Co., LLC, 67 Va. Cir. 542, 2004 Va. Cir. LEXIS 318 (Colonial Heights Aug. 11, 2004).

    Conditional use permit. —

    Circuit court decided to address the merits of a declaratory judgment action in which plaintiffs claimed that they were injured by virtue of having to go through the process to obtain a conditional use permit that plaintiffs argued could not lawfully be required. Although plaintiffs’ proposed wastewater treatment facility had not yet been approved by the Virginia Department of Health, this did not preclude plaintiffs from having standing to bring a declaratory judgment action. Atl. Town Ctr. Dev. Corp. v. Accomack County Bd. of Supervisors, 94 Va. Cir. 35, 2016 Va. Cir. LEXIS 112 (Accomack County July 18, 2016).

    Declaratory judgment appropriate in action to determine which sentence inmate is serving. —

    Trial court entered judgment declaring that an inmate had served a 12-year sentence it imposed after he was convicted of abducting a police officer and use of a firearm in the commission of an abduction and that the inmate was serving sentences imposed for other crimes he committed, on which his parole was revoked. Turner v. Ewing, 63 Va. Cir. 117, 2003 Va. Cir. LEXIS 326 (Winchester Sept. 15, 2003).

    Dismissal of complaint against county warranted. —

    Complainants had not stated grounds for declaratory relief against the county for the regulations it took to preserve a village as an historic district because the regulations did not exceed the authority conferred upon the county pursuant to § 15.2-2306 . Additionally the complainants did not object to the proposed regulations as required under § 15.2-2285 . Madison v. Loudoun County Bd. of Supervisors, 69 Va. Cir. 469, 2006 Va. Cir. LEXIS 89 (Loudoun County Jan. 27, 2006).

    Failure to state claim. —

    Where a city manager had the discretion to exclude the police lieutenants from employee relations committees, the lieutenants’ declaratory judgment action had to be dismissed without prejudice based on the city’s demurrer. Bagwell v. City of Norfolk, 59 Va. Cir. 205, 2002 Va. Cir. LEXIS 341 (Norfolk July 2, 2002).

    Demurrer granted. —

    Trial court granted a police department’s demurrer in a declaratory judgment action pursuant to § 8.01-184 , and determined that the department could require applicants for concealed handgun permits to present evidence of residency in addition to a State application, as subsection D of § 18.2-308 only allowed the court to grant such a permit to a resident of the county, and the submission of corroborating proof of residence was a reasonable request. Merkel v. Manger, 2003 Va. Cir. LEXIS 80 (Fairfax County May 5, 2003).

    Demurrer denied. —

    Pursuant to §§ 8.01-184 and 8.01-191 , a demurrer was denied as to defendants’ counterclaim requesting declaratory relief, specifically, a declaration that an easement granted them boat access from their property to a channel. Wessynton Homes Ass'n v. Burke, 79 Va. Cir. 365, 2009 Va. Cir. LEXIS 128 (Fairfax County Oct. 5, 2009).

    County board of supervisors stated a claim under the statute because they pleaded an actual controversy sufficient enough to survive demurrer; the board had standing and adequately identified a justiciable interest. Bd. of Supervisors v. Bd. of Zoning Appeals, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

    Declaratory relief denied. —

    Bar and cafe were not entitled to declaratory relief holding that a city council acted unlawfully on when it revoked a blanket special exception respecting the operation of entertainment establishments and denied their applications for individual special exceptions to conduct such business operations because the city did not act deficiently in giving public notice of the council agenda in violation of the mandatory notice provisions of subsection A of § 15.2-2204 ; the bar and cafe did not deny either actual notice of or active participation in the council’s consideration of any item relevant to their interests on its agenda. City of Norfolk v. Norfolk 102 LLC, 2011 Va. Cir. LEXIS 144 (Norfolk Dec. 17, 2011), aff'd, 285 Va. 340 , 738 S.E.2d 895, 2013 Va. LEXIS 31 (2013).

    Grant of summary judgment in favor of the insurer in the insured mother’s declaratory judgment action filed under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., was appropriate because the policy was not ambiguous and the clear language prevented stacking of intra-policy coverage. Bryant v. Selective Ins. Co., 82 Va. Cir. 188, 2011 Va. Cir. LEXIS 170 (Charlottesville Feb. 3, 2011).

    General contractor was denied a preliminary injunction enjoining a subcontractor from pursuing litigation in North Carolina or Georgia because under the Virginia Declaratory Judgment Act, the circuit court could only interpret the parties’ contracts as they applied to pending litigation in the circuit court, and it did not have the authority to prohibit out-of-state courts from exercising their own jurisdiction. JAAAT Tech. Servs., LLC v. Tetra Tech Tesoro, Inc., 92 Va. Cir. 62, 2015 Va. Cir. LEXIS 250 (Hopewell Mar. 17, 2015).

    Because there was no breach of contract, the declarations sought by a subcontractor could not be granted. Parsons Gov't Servs. v. Bechtel Nat'l, Inc., 2016 Va. Cir. LEXIS 214 (Fairfax County Oct. 12, 2016).

    If a university foundation were a public body of the Commonwealth, then the foundation would be cloaked in sovereign immunity, and a declaratory judgment would not be an appropriate form of relief against it under the Virginia Freedom of Information Act; even assuming the foundation was not a public body, declaratory relief would still be inappropriate, because the controversy had already ripened and injury had already been inflicted. Transparent GMU v. George Mason Univ., 97 Va. Cir. 212, 2017 Va. Cir. LEXIS 330 (Fairfax County Nov. 29, 2017).

    University was entitled to sovereign immunity because under the Virginia Freedom of Information Act, it waived sovereign immunity only as to mandamus and injunctive relief, and declaratory judgment was not an available remedy; to the extent that the petition included requests for declaratory relief, those requests would not be entertained because they sought a form of relief not permitted by the legislature, to which the university was immune. Transparent GMU v. George Mason Univ., 97 Va. Cir. 212, 2017 Va. Cir. LEXIS 330 (Fairfax County Nov. 29, 2017).

    Declaratory judgment was not warranted because there was no obligation for a former wife under a marital settlement agreement to agree to a buyout and no authority for the circuit court to force her to do so; because the marital settlement agreement spoke for itself, rendering an opinion as to the availability of a buyout opened the door for other types of agreements the parties could reach in lieu of listing the property for sale. Hutchens v. Hutchens, 2020 Va. Cir. LEXIS 194 (Loudoun County Oct. 20, 2020).

    Declaratory relief granted. —

    Insurer’s request for a declaratory judgment was granted and the insurance policy was declared void ab initio due to defendant’s material misrepresentations in the application process because had the insurer known the airplane was housed in Florida, the policy would not have issued, as the vice president of underwriting had initiated a block on all new policies for planes housed in Florida until a hurricane passed; had the insurer been aware that there was no current airworthiness certificate, then it would not have agreed to provide coverage for defendant’s airplane; and the misrepresentations did more than just reasonably influence consideration by the insurer, they were the actual difference in getting the policy issued. Old Republic Ins. Co. v. Abruzzino, 99 Va. Cir. 492, 2018 Va. Cir. LEXIS 229 (Shenandoah County Aug. 28, 2018).

    Prenuptial agreement was found to be valid and enforceable because a wife failed to establish by clear and convincing evidence that the agreement was unconscionable since there was not a gross disparity in the division of the assets; the wife failed to prove she was not provided a fair and reasonable disclosure of the property or financial obligations of the husband because she was given a detailed statement of financial condition. Dwoskin v. Dwoskin, 104 Va. Cir. 41, 2019 Va. Cir. LEXIS 1199 (Fairfax County Nov. 19, 2019).

    Prenuptial agreement was found to be valid and enforceable because a wife failed to establish by clear and convincing evidence that she signed involuntarily; the wife had an understanding of the rights she was waiving under the agreement, based upon her repeated discussions with the husband, her attending a meeting with an attorney, her discussing the concepts of protecting the husband’s business assets and deferring on alimony and expressly excluding certain jointly acquired assets. Dwoskin v. Dwoskin, 104 Va. Cir. 41, 2019 Va. Cir. LEXIS 1199 (Fairfax County Nov. 19, 2019).

    Claim barred. —

    Declaratory judgment claim was time-barred under subsection A of § 8.01-243 because the underlying action was fraud, and it was not filed until 2012, but the alleged fraud reasonably should have been discovered by January 2006. Sun Hotel v. Summitbridge Credit Invs. III, LLC, 86 Va. Cir. 189, 2013 Va. Cir. LEXIS 4 (Fairfax County Jan. 23, 2013).

    § 8.01-184.1. Declaratory judgment to adjudicate constitutional nexus.

    1. Circuit courts shall have original jurisdiction over civil actions seeking declaratory judgment where:
      1. The party seeking declaratory relief is a business that (i) is organized under the laws of the Commonwealth or a sole proprietorship owned by a Commonwealth domiciliary, or (ii) has qualified to do business in the Commonwealth; and
      2. The responding party is a government official of another state, or political subdivision of another state, who asserts that the business in question is or was in the past obliged to collect sales or use taxes for such state or political subdivision based upon conduct of the business occurring wholly or partially within the Commonwealth.
    2. Any business meeting the requirements and facing the circumstances described in subsection A shall be entitled to declaratory relief on the issue of whether the requirement of another state, or political subdivision of another state, that the business collect and remit sales or use taxes to that state, or political subdivision, in the factual circumstances of the business’ operations giving rise to the demand, constitutes an undue burden on interstate commerce within the meaning of Article I, Section 8, Clause 3 of the United States Constitution.
    3. Any government official meeting the requirements of subdivision A 2 shall be subject to the personal jurisdiction of Virginia circuit courts to the extent permitted by the Constitution of the United States. This subsection shall govern personal jurisdiction in actions under this section, and shall constitute authorization for purposes of § 8.01-330 .

    History. 2004, cc. 609, 647; 2005, cc. 736, 800.

    Editor’s note.

    Acts 2005, cc. 736 and 800, cls. 2, provide: “That the provisions of this act are declaratory of existing law.”

    The 2005 amendments.

    The 2005 amendments by cc. 736 and 800 are identical, and in subdivision A 2, inserted “or was in the past,” and substituted “occurring” for “that occurs”; and added subsection C.

    Law Review.

    For 2003/2004 survey of the law of taxation, see 39 U. Rich. L. Rev. 413 (2004).

    For annual survey of Virginia law on taxation, see 40 U. Rich. L. Rev. 291 (2005).

    § 8.01-185. Venue.

    The venue of actions seeking declarations of right with or without consequential relief shall be determined in accordance with provisions of Chapter 5 (§ 8.01-257 et seq.) of this title.

    History. Code 1950, § 8-579; 1954, c. 333; 1977, c. 617.

    REVISERS’ NOTE

    The special venue provision of former § 8-579 has been changed and venue will be determined in accordance with the general venue provisions of chapter 5, §§ 8.01-257 ff.

    Former § 8-580 (Procedure) has been deleted as unnecessary.

    CIRCUIT COURT OPINIONS

    Venue proper. —

    Because the circuit court had personal jurisdiction over relatives based upon their minimum contacts with Virginia, venue was properly laid in Virginia in a lawyer’s declaratory judgment action under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., seeking a declaratory judgment regarding his rights and responsibilities under powers of attorney; the relatives executed the powers of attorney in Virginia and returned to Virginia to meet again with the lawyer, and by voluntarily creating a continuing relationship with the lawyer, who maintained an office and performed work for the relatives in Virginia, the relatives purposefully availed themselves of the privilege of conducting activities within the Commonwealth. Tabet v. Sheban, 83 Va. Cir. 89, 2011 Va. Cir. LEXIS 75 (Fairfax County June 9, 2011).

    § 8.01-186. Further relief.

    Further relief based on a declaratory judgment order or decree may be granted whenever necessary or proper. The application shall be by motion to a court having jurisdiction to grant the relief. If the application is deemed sufficient the court shall, on reasonable notice, require an adverse party whose rights have been adjudicated by the declaration of right to show cause why further relief should not be granted forthwith.

    History. Code 1950, § 8-581; 1977, c. 617.

    Law Review.

    For annual survey of Virginia law article, “Local Government Law,” see 47 U. Rich. L. Rev. 257 (2012).

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 219.

    CASE NOTES

    The phrase “further relief” in this section does not authorize a court to award attorney’s fees to a litigant. Russell County Dep't of Social Servs. v. Quinn, 259 Va. 139 , 523 S.E.2d 492, 2000 Va. LEXIS 17 (2000).

    The provisions of the former version of this section clearly contemplate further action to enforce the rights determined by a declaratory judgment. Winborne v. Doyle, 190 Va. 867 , 59 S.E.2d 90, 1950 Va. LEXIS 177 (1950) (decided under prior law).

    The relief contemplated and provided for by § 8.01-184 is not limited to a bare declaration of rights. In a proper case under that section and this section, such consequential, other, and additional relief as is justified by the pleadings, and by the private or public rights and interests involved, may be awarded. Dean v. Paolicelli, 194 Va. 219 , 72 S.E.2d 506, 1952 Va. LEXIS 223 (1952) (decided under prior law).

    Remedy not exclusive. —

    The remedy for enforcement of the rights determined by the declaratory judgment prescribed by this section is not exclusive. Such a proceeding is intended to supplement rather than supersede ordinary causes of action. Winborne v. Doyle, 190 Va. 867 , 59 S.E.2d 90, 1950 Va. LEXIS 177 (1950) (decided under prior law).

    Illustrative case. —

    For case as to the sufficiency of a bill for declaratory judgment and further relief where the plaintiff sought the cancellation or annulment of an easement, see First Nat'l Trust & Sav. Bank v. Raphael, 201 Va. 718 , 113 S.E.2d 683, 1960 Va. LEXIS 152 (1960) (decided under prior law).

    Members lacked standing. —

    Members had no standing to bring a declaratory judgment suit challenging a property development because, inter alia, no language in Hampton, Va., Charter §§ 3A-10 and 3A-11 provided or suggested a continuing role for a “committee of petitioners” beyond the petition process; when the city council agreed to repeal the ordinance, which negated the necessity of presenting the petition for repeal to the trial court, the committee’s authority to act ended and the committee had no ongoing justiciable right or interest that was aggrieved by the development property. Deerfield v. City of Hampton, 283 Va. 759 , 724 S.E.2d 724, 2012 Va. LEXIS 91 (2012).

    CIRCUIT COURT OPINIONS

    Easement dispute. —

    Owner’s plea in abatement as to plaintiff’s claim of an easement over the owner’s property was denied because the court’s refusal to resolve the dispute would have given rise to uncertainty over what rights, if any, could have been asserted by the parties, and § 8.01-186 provided authority to the court to grant declaratory relief that was necessary or proper; declaratory relief was proper even if other legal redress was available to plaintiff. Estes v. Powell, 73 Va. Cir. 370, 2007 Va. Cir. LEXIS 104 (Madison County June 22, 2007).

    § 8.01-187. Commissioners or condemnation jurors to determine compensation for property taken or damaged.

    Whenever it is determined in a declaratory judgment proceeding that a person’s property has been taken or damaged within the meaning of Article I, Section 11 of the Constitution of Virginia and compensation has not been paid or any action taken to determine the compensation within 60 days following the entry of such judgment order or decree, the court which entered the order or decree may, upon motion of such person after reasonable notice to the adverse party, enter a further order appointing commissioners or condemnation jurors to determine the compensation. The appointment of commissioners or condemnation jurors and all proceedings thereafter shall be governed by the procedure prescribed for the condemning authority. Notwithstanding the provisions of § 25.1-100 , the date of valuation in actions pursuant to this section shall be the date determined by the court to be the date the property was taken or damaged.

    History. Code 1950, § 8-581.1; 1968, c. 782; 1971, Ex. Sess., c. 1; 1977, c. 617; 2007, cc. 450, 720; 2010, c. 835; 2014, c. 618.

    Cross references.

    As to reimbursement of the plaintiff for costs, expenses, etc., incurred in a proceeding under this section, see § 25.1-420 .

    The 2007 amendments.

    The 2007 amendments by cc. 450 and 720 are identical, and substituted “Condemnation jurors” for “Commissioners” in the section catchline; and substituted “condemnation jurors” for “commissioners” in the first and last sentences.

    The 2010 amendments.

    The 2010 amendments by c. 835, applicable only to actions filed on or after July 1, 2010, twice inserted “commissioners or” and made a stylistic change.

    The 2014 amendments.

    The 2014 amendment by c. 618 added the last sentence.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    Michie’s Jurisprudence.

    For related discussion, see 7A M.J. Eminent Domain, § 99.

    CASE NOTES

    Analysis

    I.General Consideration.

    This section is a remedial statute. It disturbs no vested rights and creates no new obligation. It merely supplies another remedy to enforce existing rights. See Stroobants v. Fugate, 209 Va. 275 , 163 S.E.2d 192, 1968 Va. LEXIS 226 (1968); Chaffinch v. C & P Tel. Co., 227 Va. 68 , 313 S.E.2d 376, 1984 Va. LEXIS 269 (1984) (decided under prior law).

    Statutory remedy does not preempt common-law remedies against a nonsovereign entity vested with the power of eminent domain unless the statute, expressly or by necessary implication, so provides. Chaffinch v. C & P Tel. Co., 227 Va. 68 , 313 S.E.2d 376, 1984 Va. LEXIS 269 (1984).

    When a state provides an adequate procedure for obtaining just compensation, a property owner cannot claim a violation of the federal provision until it has used the state procedure and been denied just compensation. Pasquotank Action Council, Inc. v. City of Va. Beach, 909 F. Supp. 376, 1995 U.S. Dist. LEXIS 19119 (E.D. Va. 1995).

    In an action for damages following the demolition of a residential building, the property owner’s failure to exhaust administrative remedies barred any claim for inverse condemnation under § 8.01-187 where during the 107 days that elapsed from receipt of the notice until demolition, the property owner made no inquiries about any appeal rights and took no actions to avail himself thereof. Lee v. City of Norfolk, 281 Va. 423 , 706 S.E.2d 330, 2011 Va. LEXIS 55 (2011).

    Mandamus will not lie to compel the Highway Commissioner to institute condemnation proceedings in the proper court to ascertain what compensation is due petitioners for the damages that they allege have been done to their property by the acts of the respondent, since the cause of action asserted by the petitioners can be resolved in a declaratory judgment proceeding in a lower court. Stroobants v. Fugate, 209 Va. 275 , 163 S.E.2d 192, 1968 Va. LEXIS 226 (1968) (decided under prior law).

    Diminution in value not sufficient to establish taking. —

    In inverse condemnation actions, as property owners did not allege that the presence of a public utility’s transmission lines interfered with their ability to exercise any specific property right, but that the transmission lines rendered their land less valuable as residential property; they did not state a claim for a “taking” under Va. Const. art. I, § 11. Byler v. Va. Elec. & Power Co., 284 Va. 501 , 731 S.E.2d 916, 2012 Va. LEXIS 167 (2012).

    Section applicable though not in force when cause of action arose. —

    While this section was not in force when petitioners’ cause of action arose, it became effective on June 28, 1968, and they are entitled to avail themselves of the procedure outlined therein. Stroobants v. Fugate, 209 Va. 275 , 163 S.E.2d 192, 1968 Va. LEXIS 226 (1968) (decided under prior law).

    Relationship with other laws. —

    This section is not the exclusive remedy for claimants making an inverse condemnation claim against a political subdivision of the Commonwealth. The provisions of Va. Const., Art. I, § 11 are self-executing. The enactment of § 8.01-187 does not change that analysis or evidence an intent on the part of the General Assembly to limit the right to make the constitutional takings claim. Kitchen v. City of Newport News, 275 Va. 378 , 657 S.E.2d 132, 2008 Va. LEXIS 38 (2008).

    Circuit court erred in holding that this section constituted an inverse condemnation and was claimant’s exclusive remedy against a municipal corporation where the provisions of Va. Const., Art. I, § 11 were self-executing and § 8.01-187 disturbed no vested rights and created no new obligation. Section 8.01-187 merely supplied another remedy to enforce existing rights. Kitchen v. City of Newport News, 275 Va. 378 , 657 S.E.2d 132, 2008 Va. LEXIS 38 (2008).

    II.Sovereign Immunity.

    Waiver of sovereign immunity from inverse condemnation claims. —

    The just-compensation clause of Va. Const., Art. I, § 11, constitutes a waiver of sovereign immunity from inverse condemnation claims, and this section creates a statutory mechanism for the enforcement of such claims. Chaffinch v. C & P Tel. Co., 227 Va. 68 , 313 S.E.2d 376, 1984 Va. LEXIS 269 (1984).

    Public service companies have never enjoyed immunity from liability for damaging private property, the power of eminent domain entrusted to them by § 56-464 confers none, and there is nothing in the language of this section or the annals of legislative history which reflects legislative intent to immunize them from actions at common law. Chaffinch v. C & P Tel. Co., 227 Va. 68 , 313 S.E.2d 376, 1984 Va. LEXIS 269 (1984).

    CIRCUIT COURT OPINIONS

    Landowners entitled to proceeding to determine just compensation. —

    Landowners established damage under Va. Const., Art. I, § 11, and that, if not compensated, they were entitled to a proceeding under § 8.01-187 to determine just compensation as the property had suffered a significant increase in volume, frequency, and vibrations from noise due to aircraft flying directly overhead, there was no requirement that the damage be significant, and the exact amount of damages was not important as the landowners sought a declaratory judgment. Osipovs v. Chesapeake Airport Auth., 74 Va. Cir. 350, 2007 Va. Cir. LEXIS 295 (Chesapeake Nov. 16, 2007).

    No right to jury trial existed. —

    Because a property owner lacked any right to a jury trial in its suit against the Commonwealth under the Just Compensation Clause, Va. Const., Art. I, § 11, the action was to proceed on the Commonwealth’s terms, pursuant to the plain meaning of § 8.01-187 . Moreover, the instant court lacked any power to effect a more expansive waiver of immunity than provided for by the Commonwealth itself. Catholic Diocese v. Commonwealth Transp. Comm'r, 74 Va. Cir. 154, 2007 Va. Cir. LEXIS 245 (Alexandria Dec. 18, 2007).

    § 8.01-188. Jury trial.

    When a declaration of right or the granting of further relief based thereon shall involve the determination of issues of fact triable by a jury, such issues may be submitted to a jury in the form of interrogatories, with proper instructions by the court, whether a general verdict be required or not.

    History. Code 1950, § 8-582; 1977, c. 617.

    Law Review.

    For an article, “Civil Practice and Procedure,” see 32 U. Rich. L. Rev. 1009 (1998).

    CASE NOTES

    This section addresses only the form in which an issue of fact may be submitted to a jury, and does not provide a party in a declaratory judgment suit a separate right to a binding jury verdict. Angstadt v. Atlantic Mut. Ins. Co., 254 Va. 286 , 492 S.E.2d 118, 1997 Va. LEXIS 78 (1997).

    § 8.01-189. Injunction.

    The pendency of any action at law or suit in equity brought merely to obtain a declaration of rights or a determination of a question of construction shall not be sufficient grounds for the granting of any injunction.

    History. Code 1950, § 8-583; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 219.

    CASE NOTES

    Suit held pure bill for injunction. —

    A suit for declaratory judgment and injunction against threatened actions at law was really a pure bill for an injunction. It asked the chancellor to try a disputed question of fact as a determinative issue, and to substitute a suit in equity for several actions at law, although it alleged that there was an absolute defense in each action, pleadable at law. A court of equity will not enjoin the prosecution of an action at law when the defendant can make a full and adequate defense in such action. A suit at law cannot be enjoined and the litigation transferred to the equity forum merely on the assertion of defenses that are pleadable at law. An action at law will not be enjoined except where a court of chancery may afford a more adequate and perfect remedy. Williams v. Southern Bank, 203 Va. 657 , 125 S.E.2d 803, 1962 Va. LEXIS 202 (1962) (decided under prior law).

    Demurrer on ground that prayer for injunction violated section not good. —

    A bill for divorce, by a husband against his wife, asked for a construction of a separation contract between the husband and wife and a deed of trust executed in pursuance of the contract, and also asked for an injunction against the enforcement of the contract and the deed of trust. The wife demurred on the ground that the prayer for the injunction was in violation of the former version of this section, which provides that the pendency of an action or suit to obtain a declaration of rights or a determination of a question of construction should not be sufficient grounds for the granting of an injunction. It was held that this was not a good ground of demurrer. Gloth v. Gloth, 154 Va. 511 , 153 S.E. 879 , 1930 Va. LEXIS 232 (1930) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Attorney’s fees. —

    Where there was no contractual provision or statutory authority to the contrary and there was no bad faith, the neighbors’ request for attorney’s fees as the prevailing party in an action for injunctive relief was denied. Goff v. Hooker, 62 Va. Cir. 338, 2003 Va. Cir. LEXIS 279 (Roanoke County July 22, 2003).

    § 8.01-190. Costs.

    The costs, or such part thereof as the court may deem proper and just in view of the particular circumstances of the case, may be awarded to any party.

    History. Code 1950, § 8-584; 1977, c. 617.

    § 8.01-191. Construction of article.

    This article is declared to be remedial. Its purpose is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor. It is to be liberally interpreted and administered with a view to making the courts more serviceable to the people.

    History. Code 1950, § 8-585; 1977, c. 617.

    Law Review.

    For comment on challenging rezoning in Virginia, see 15 U. Rich. L. Rev. 423 (1981).

    For survey of the Virginia law on administrative law for the year 2007-2008, see 43 U. Rich. L. Rev. 73 (2008).

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 218.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    This section and § 8.01-184 are to be liberally interpreted and administered with a view to making the courts more serviceable to the people. Board of Supvrs. v. Southland Corp., 224 Va. 514 , 297 S.E.2d 718, 1982 Va. LEXIS 323 (1982).

    Trial court incorrectly held that declaratory judgment was not available to construe provision of written lease to determine whether continued occupancy of certain premises would subject lessee to liability for continuing damages, and his employees and customers to criminal liability for trespass; lessee was entitled to declaratory judgment action given unavailability of any remedy by customary processes and liberal construction of this section. Hop-In Food Stores, Inc. v. Serv-N-Save, Inc., 237 Va. 206 , 375 S.E.2d 753, 5 Va. Law Rep. 1574, 1989 Va. LEXIS 17 (1989).

    No justiciable controversy existed where parties not named as defendants. —

    In an action for declaratory judgment by a motorist against her automobile insurer and the automobile insurer for owner of another automobile involved in an accident, no justiciable controversy existed because the motorist did not name the owner and driver of the other automobile as defendants. Erie Ins. Group v. Hughes, 240 Va. 165 , 393 S.E.2d 210, 6 Va. Law Rep. 2698, 1990 Va. LEXIS 96 (1990).

    Declaratory judgment proper for review of dispute between county and town. Declaratory judgment under § 8.01-191 was the proper vehicle for review of a dispute between a town and a county over the respective authority under a joint comprehensive master plan created pursuant to § 15.2-2231 ; the planning process, as distinct from the zoning process, was joint under §§ 15.2-2232 and 15.2-2223 . Bd. of Supervisors v. Town of Purcellville, 276 Va. 419 , 666 S.E.2d 512, 2008 Va. LEXIS 100 (2008).

    Award of attorney’s fees not authorized. —

    Although the plain language in this section requires that the courts interpret and administer the Declaratory Judgment Act with a view to making the courts more serviceable to the people, this does not authorize a court to make an award of attorney’s fees. Russell County Dep't of Social Servs. v. Quinn, 259 Va. 139 , 523 S.E.2d 492, 2000 Va. LEXIS 17 (2000).

    II.Decisions Under Prior Law.

    Editor’s note.

    The cases cited below were decided under corresponding provisions of former law. The terms “this section” and “this article,” as used below, refer to former provisions.

    Intent of this article is not to give parties greater rights than those which they previously possessed, but to permit the declaration of those rights before they mature. Fairfield Dev. Corp. v. City of Virginia Beach, 211 Va. 715 , 180 S.E.2d 533, 1971 Va. LEXIS 249 (1971).

    The intent of this article is to have courts render declaratory judgments which may guide parties in their future conduct in relation to each other, thereby relieving them from the risk of taking undirected action incident to their rights, which action, without direction, would jeopardize their interests. This is with a view rather to avoid litigation than in aid of it. Fairfield Dev. Corp. v. City of Virginia Beach, 211 Va. 715 , 180 S.E.2d 533, 1971 Va. LEXIS 249 (1971).

    This article is remedial and is to be liberally construed and administered. Criterion Ins. Co. v. Grange Mut. Cas. Co., 210 Va. 446 , 171 S.E.2d 669, 1970 Va. LEXIS 142 (1970).

    The construction of this article, while liberal, must be reasonable and confined within definite limits. Declaratory judgments are not to be used as instruments of procedural fencing, either to secure delay or to choose a forum. Williams v. Southern Bank, 203 Va. 657 , 125 S.E.2d 803, 1962 Va. LEXIS 202 (1962).

    The declaratory judgment acts do not create or change any substantive rights, or bring into being or modify any relationships, or alter the character of controversies, which are the subject of judicial power. Their construction, while liberal, must be reasonable and confined within definite limits. They are not to be used as instruments of procedural fencing, either to secure delay or to choose a forum. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519, 1970 Va. LEXIS 263 (1970).

    Power to make declaratory judgment is discretionary. —

    While the courts have, in obedience to this section, given a liberal interpretation to the Declaratory Judgment Act, they have nevertheless recognized that the power to make a declaratory judgment is a discretionary one and must be exercised with care and caution. Fairfield Dev. Corp. v. City of Virginia Beach, 211 Va. 715 , 180 S.E.2d 533, 1971 Va. LEXIS 249 (1971).

    And it will not be exercised where some other mode of proceeding is provided. Hence, where the petitioners, in essence, were seeking a money judgment for a sum certain, and the court had nothing to determine that would guide the parties in their future conduct in relation to each other, but each petitioner had paid the fee, and the only issue to be determined was whether it was entitled to have the fees refunded, their remedy was by motion for judgment and not by petition for declaratory judgment. Fairfield Dev. Corp. v. City of Virginia Beach, 211 Va. 715 , 180 S.E.2d 533, 1971 Va. LEXIS 249 (1971).

    CIRCUIT COURT OPINIONS

    Standing to challenge ordinance. —

    Since the Declaratory Judgments Act is to be liberally interpreted, residential landlords’ action seeking to have town’s ordinance declared invalid was not barred on the ground that the terms of the ordinance had not been applied to them as they had a direct interest in the application of the ordinance because it affected their rental properties. Logie v. Town of Front Royal, 58 Va. Cir. 527, 2002 Va. Cir. LEXIS 174 (Warren County June 19, 2002).

    Standing of county board of supervisors. —

    County board of supervisors had standing to challenge the actions of a county board of zoning appeals (BZA) through declaratory relief because it had “aggrieved party” status by virtue of the action decided against it, and declaratory relief would determine the lawfulness of the process the BZA used; no other mode of procedure was available to the board of supervisors to challenge directly and reach the course of the BZA procedure employed and the question of its claimed authority to reconsider its decisions. Bd. of Supervisors v. Bd. of Zoning Appeals, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

    Alleged procedural transgressions in the decision-making process of the board of zoning appeals may be challenged by declaratory judgment action by any aggrieved party as a justiciable claim when they underlie, but are not identical to, the merits decision separately appealed, for each adjudicative process addresses distinct claims for relief not directly overlapping in the resulting judgment thereof. Bd. of Supervisors v. Bd. of Zoning Appeals, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

    Neither the “aggrieved party” standard nor the “justiciable interest” standard is broader nor narrower than the other, and thus the board of supervisors can qualify as an “aggrieved person” and may have standing in a declaratory judgment action; however, although the board may have standing, it does not automatically have standing, and the test to be applied to whether the board of supervisors has standing to pray for declaratory relief against the board of zoning appeals is fact-dependent. Bd. of Supervisors v. Bd. of Zoning Appeals, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

    First, there must be an actual controversy to which the board of supervisors is a party, and the court is not empowered to render merely advisory opinions; second, declaratory relief can only be exercised if it will relieve the board from the risk of the board of zoning appeals taking undirected action that would jeopardize the lawful and legitimate interests of the board. Bd. of Supervisors v. Bd. of Zoning Appeals, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

    Liberal interpretation. —

    A tenant’s motion for a demurrer pursuant to § 8.01-273 as to a landlord’s declaratory judgment action pursuant to § 8.01-184 was denied, because § 8.01-191 stated that the declaratory judgment statute was remedial in nature and had to be liberally interpreted, and the declaratory judgment statute permitted a party like the landlord to seek the court’s guidance on a landlord/tenant relationship, the pleadings stated a cause of action upon which relief could be granted, and the claims of each party were adverse to the other and were ripe for adjudication. Truslow, Inc. v. Gibbs, 59 Va. Cir. 472, 2002 Va. Cir. LEXIS 357 (Richmond Oct. 3, 2002).

    Actual controversy existed. —

    Dentist had standing to challenge his non-compete agreements with a corporation through a bill of complaint seeking a declaratory judgment declaring that the agreements were overbroad and unenforceable and alleging that he wished to violate the agreements; the corporation demurred, implying that it intended to enforce the agreements. Thus, there was an actual, justiciable controversy. Graves v. Ciraden, Inc., 65 Va. Cir. 127, 2004 Va. Cir. LEXIS 152 (Fairfax County June 9, 2004).

    Declaratory judgment action by traffic violators who challenged the constitutionality of the remedial driver fees in § 46.2-206.1 withstood a dismissal challenge on the basis of sovereign immunity, as at least two of the violators had been convicted and as such, they had a direct and justiciable interest in the subject matter of the action; there was an actual controversy and as the only issues related to the constitutionality of the legislation and nothing more was sought from the Commonwealth, pursuant to §§ 8.01-184 and 8.01-191 the action was viable. Minter v. Commonwealth, 74 Va. Cir. 336, 2007 Va. Cir. LEXIS 194 (Roanoke County Nov. 6, 2007).

    Corporation’s claim set forth a proper matter for judicial declaration because it presented a case of actual controversy, and a declaration regarding the parties’ rights to control a joint venture under contracts constituted a binding adjudication of their rights; if an amendment trigger controlled, the corporation controlled the joint venture, and the dissolution would be found to have been proper, but if the trigger did not occur, the parties’ would have joint control of the joint venture. ATK Space Sys. v. US Space LLC, 99 Va. Cir. 46, 2018 Va. Cir. LEXIS 314 (Loudoun County Jan. 19, 2018).

    Because the controversy was delaying the ultimate resolution of the transfer of marital property, declaratory relief was available; as there was clearly a dispute between the parties as to whether the marital settlement agreement SA and final order of divorce required the property to be sold to a third party, there was an actual controversy. Hutchens v. Hutchens, 2020 Va. Cir. LEXIS 194 (Loudoun County Oct. 20, 2020).

    Failure to allege justiciable controversy. —

    Circuit court did not have the authority to exercise jurisdiction over a substitute teacher’s requests for declaratory relief because the teacher failed to allege a justiciable controversy; the teacher did not allege that the county public schools failed to interpret § 22.1-296.1 as an affirmative obligation regarding the language required in their employment application, and there was no statutory avenue for the teacher to challenge a nonrenewal of her contract. Flinn v. Fairfax County Sch. Bd., 87 Va. Cir. 262, 2013 Va. Cir. LEXIS 102 (Fairfax County Nov. 14, 2013).

    Pleadings taken as a whole did not adequately advise a county or the circuit court of how town officials’ claimed an actual controversy or antagonistic assertion and denial of right between themselves and the county, which would give the circuit court reason to exercise its discretionary right to hear the matter as a declaratory judgment action. Town of White Stone v. Cty. of Lancaster, 97 Va. Cir. 309, 2002 Va. Cir. LEXIS 480 (Lancaster County Oct. 10, 2002).

    Declaratory relief not proper. —

    While the Declaratory Judgment Act was to be liberally interpreted and administered with a view to making the courts more serviceable to the people, courts may only issue declaratory judgments in cases of actual controversy when there was antagonistic assertion and denial of right; thus, the Declaratory Judgment Act did not give trial courts the authority to render advisory opinions, decide moot questions, or answer inquiries that were merely speculative. Although the investor alleged that there was a question of whether he and the limited liability company’s member were legally associated and that the investor’s rights in the artists were affected thereby, there was nothing about the allegations which required direction lest the parties’ actions would be jeopardized; moreover, the case was not a proper one for declaratory relief without the presence of the limited liability company since rights to the artists and royalties were due the limited liability company. Schur v. Sprenkle, 84 Va. Cir. 418, 2012 Va. Cir. LEXIS 132 (Richmond Apr. 11, 2012).

    Declaratory relief. —

    Pursuant to §§ 8.01-184 and 8.01-191 , a demurrer was denied as to defendants’ counterclaim requesting declaratory relief, specifically, a declaration that an easement granted them boat access from their property to a channel. Wessynton Homes Ass'n v. Burke, 79 Va. Cir. 365, 2009 Va. Cir. LEXIS 128 (Fairfax County Oct. 5, 2009).

    Declaratory judgment denied. —

    Demurrer filed by the beneficiary of a deed of trust was sustained in a mortgagor’s action seeking a declaratory judgment that the foreclosure of her property was unlawful because the plain language in the deed of trust authorized the beneficiary to foreclose on the property in the event that the mortgagor defaulted on the loan, and the deed of trust specifically authorized the beneficiary to appoint a substitute trustee to conduct foreclosure proceedings; by signing the deed of trust, the mortgagor agreed that the beneficiary, as nominee for the lender and the lender’s successors and assigns, had the right to foreclose on the property and recognized that the beneficiary could take any action required of the lender. Graves v. Mortg. Elec. Registration Sys., 96 Va. Cir. 457, 2011 Va. Cir. LEXIS 97 (Fairfax County June 29, 2011).

    Estoppel. —

    Although a property owner satisfied the standing requirement necessary for a grant declaratory relief under §§ 8.01-184 and 8.01-191 because the owner’s claim related to restrictions on development of the owner’s land, was not merely speculative and the owner did not need to exhaust its administrative remedies, while the owner’s subdivision application was pending, the owner was estopped from proceeding with the declaratory action since it rendered the need for court intervention illusory and advisory. Broad Run Vill., L.C. v. Loudoun County Bd. of Supervisors, 59 Va. Cir. 96, 2002 Va. Cir. LEXIS 331 (Loudoun County May 8, 2002).

    Dismissal. —

    Because a defendant properly pleaded a statute of limitations defense under § 8.01-235 , and pursuant to § 8.01-281 and Va. Sup. Ct. R. 4:13(8) ruling on a plea at bar did not have to be deferred until the date of trial, the plaintiff’s petition for declaratory judgment under § 8.01-191 was dismissed. Trivedi v. Pansuria, 72 Va. Cir. 220, 2006 Va. Cir. LEXIS 196 (Chesterfield County Nov. 3, 2006).

    Article 18. Recovery of Claims Against the Commonwealth of Virginia.

    § 8.01-192. How claims to be prosecuted.

    When the Comptroller or other authorized person shall disallow, either in whole or in part, any such claim against the Commonwealth as is provided for by §§ 2.2-814, 2.2-815 or 8.01-605 at which time a right of action under this section shall be deemed to accrue, the person presenting such claim may petition an appropriate circuit court for redress.

    History. Code 1950, § 8-752; 1966, c. 452; 1977, c. 617.

    REVISERS’ NOTE

    The requirement of former § 8-752 that a claim against the State be brought only in the Circuit Court of the city of Richmond has been changed. Section 8.01-192 permits such a claim to be brought in “an appropriate circuit court.” The sentence beginning with “and when a person has any other claim. . .” in former § 8-752 has been deleted. The intent of the statute is confined to only “pecuniary claims” and thus would not include “any other claims” against the Commonwealth.

    Cross references.

    As to the liability of the salary of an officer for a debt he owes the Commonwealth, see § 2.2-2816.

    Law Review.

    For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973).

    For survey of Virginia administrative law for the year 1973-1974, see 60 Va. L. Rev. 1446 (1974).

    For a re-examination of sovereign tort immunity in Virginia, see 15 U. Rich. L. Rev. 247 (1981).

    For note on the abrogation of sovereign immunity in Virginia: The Virginia Tort Claims Act, see 7 G.M.U. L. Rev. 291 (1984).

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    There is no reason to vitiate the right of the state not to be subject to suit in her own courts by a broad and unwarranted interpretation of the legislative intent behind the limited waiver of sovereign immunity in this section. Commonwealth v. Luzik, 259 Va. 198 , 524 S.E.2d 871, 2000 Va. LEXIS 21 (2000).

    For discussion of doctrine of sovereign immunity, see Hinchey v. Ogden, 226 Va. 234 , 307 S.E.2d 891, 1983 Va. LEXIS 311 (1983).

    Immunity from suit in federal court. —

    The Commonwealth, never having waived her immunity under U.S. Const., Amend. XI, is not amenable to a suit for damages in federal court, even when the basis for such suit is a claimed violation of 42 U.S.C. § 1983. Only officials of the Commonwealth may be enjoined from acts that violate the Constitution. Croatan Books, Inc. v. Virginia, 574 F. Supp. 880, 1983 U.S. Dist. LEXIS 11993 (E.D. Va. 1983), dismissed, 583 F. Supp. 857, 1984 U.S. Dist. LEXIS 18236 (E.D. Va. 1984).

    Eleventh Amendment immunity not waived. —

    Virginia has not waived its Eleventh Amendment immunity. This section, which generally governs recovery of claims against the State, waives sovereign immunity in actions brought in Virginia courts. But it does not express the clear legislative intent necessary to constitute a waiver of Eleventh Amendment immunity. McConnell v. Adams, 829 F.2d 1319, 1987 U.S. App. LEXIS 13009 (4th Cir. 1987), cert. denied, 486 U.S. 1006, 108 S. Ct. 1731, 100 L. Ed. 2d 195, 1988 U.S. LEXIS 2254 (1988).

    Nothing in Virginia cases interpreting this section suggests that it should be applied in circumstances other than in claims properly instituted under this section and the scheme provided for pursuing such claims in §§ 8.01-193 to 8.01-195 . Commonwealth v. Luzik, 259 Va. 198 , 524 S.E.2d 871, 2000 Va. LEXIS 21 (2000).

    Even if employee’s claim for back wages was subject to sovereign immunity under this section, complainant’s suit would still not satisfy the requirements for seeking payment of a contract debt from the state as prescribed by this section, where the suit was not brought in the style of a contract claim or in the manner prescribed for such claims by the statutory scheme. Commonwealth v. Luzik, 259 Va. 198 , 524 S.E.2d 871, 2000 Va. LEXIS 21 (2000).

    Waiver of immunity in state court does not necessarily operate as a consent to be sued in federal court. Jacobs v. College of William & Mary, 495 F. Supp. 183, 1980 U.S. Dist. LEXIS 12611 (E.D. Va. 1980), aff'd, 661 F.2d 922 (4th Cir. 1981).

    Clear legislative intent to waive immunity in federal courts not expressed in section. —

    In order for a waiver of sovereign immunity to be found effective as to actions brought in a federal court, as well as to actions brought in the state’s own courts, a clear legislative intent to that effect must be found. A “clear legislative intent” has not been expressed to extend the provisions of this section, effectively waiving the bar of sovereign immunity, to actions brought in federal court. Jacobs v. College of William & Mary, 495 F. Supp. 183, 1980 U.S. Dist. LEXIS 12611 (E.D. Va. 1980), aff'd, 661 F.2d 922 (4th Cir. 1981).

    Immunity from suit for unlawful application of former § 13.1-93. —

    In deciding whether a state has waived its constitutional protection under U.S. Const., Amend. XI, waiver will be found only where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction. Because there has been no such clear manifestation, indeed, because there has been no manifestation at all, of intent to waive this immunity on the part of the Commonwealth, her immunity prevents her being haled into federal court to answer a claim it conspired to shut down a business by unlawfully applying former § 13.1-93 to revoke its corporate charter. Croatan Books, Inc. v. Virginia, 574 F. Supp. 880, 1983 U.S. Dist. LEXIS 11993 (E.D. Va. 1983), dismissed, 583 F. Supp. 857, 1984 U.S. Dist. LEXIS 18236 (E.D. Va. 1984).

    Sovereign immunity has no application to valid contract actions. —

    The doctrine of sovereign immunity has no application in actions based upon valid contracts entered into by duly authorized agents of the government. The sovereign is as liable for its contractual debt as any citizen would be, and that liability may be enforced by suit in the “appropriate circuit court” if proper and timely proceedings are taken. Wiecking v. Allied Medical Supply Corp., 239 Va. 548 , 391 S.E.2d 258, 6 Va. Law Rep. 2107, 1990 Va. LEXIS 65 (1990), limited, Commonwealth v. Allstate Bonding Co., 246 Va. 189 , 435 S.E.2d 396, 10 Va. Law Rep. 230, 1993 Va. LEXIS 110 (1993).

    But the contractual relationship must be direct. —

    While contract suits against the Commonwealth were permitted to a limited extent, a direct contractual relationship was contemplated; thus, the trial court did not err in denying the surety’s motions for judgment against the state transportation department, which the surety filed in an attempt to collect on work it performed after it took over work for the original contracting party after that party defaulted on the underlying construction projects, as the surety did not have a direct contractual relationship with the state transportation department and the surety could not show any Virginia law which waived the Commonwealth’s sovereign immunity regarding the surety’s equitable subrogation claim. XL Specialty Ins. Co. v. Commonwealth, 47 Va. App. 424, 624 S.E.2d 658, 2006 Va. App. LEXIS 14 (2006).

    Injunctive relief as to future conduct of state officials. —

    The State’s Eleventh Amendment immunity does not protect it from suits for injunctive relief governing its officials’ future conduct. McConnell v. Adams, 829 F.2d 1319, 1987 U.S. App. LEXIS 13009 (4th Cir. 1987), cert. denied, 486 U.S. 1006, 108 S. Ct. 1731, 100 L. Ed. 2d 195, 1988 U.S. LEXIS 2254 (1988).

    Construction with other laws. —

    The procurement act [see now § 2.2-4300 et seq.], is a specific statute relating to the acquisition of services by public bodies and prevails over the more general statutes relating to the presentation of pecuniary claims against the commonwealth, such as those found in this section and former § 2.1-223.1 [see now subsection A of § 2.2-814]. Dr. William E.S. Flory Small Bus. Dev. Ctr., Inc. v. Commonwealth, 261 Va. 230 , 541 S.E.2d 915, 2001 Va. LEXIS 39 (2001).

    Plaintiff employee could not state a claim for wrongful termination or breach of contract because he never presented his pecuniary claim to the president of University of Virginia (the president was the head of the institution of the Commonwealth responsible for the alleged act giving rise to the employee’s claim), as required by § 2.2-814. Cominelli v. Rector & Visitors of the Univ. of Va., 589 F. Supp. 2d 706, 2008 U.S. Dist. LEXIS 99428 (W.D. Va. 2008), aff'd, 362 Fed. Appx. 359, 2010 U.S. App. LEXIS 1562 (4th Cir. 2010).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    The State cannot be sued without its consent. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 , 1918 Va. LEXIS 23 (1918).

    Even if a suit in form be against the state’s officers and agents, yet if in effect it be against the State, it is not maintainable except by the state’s permission. Sayers v. Bullar, 180 Va. 222 , 22 S.E.2d 9, 1942 Va. LEXIS 161 (1942); Eriksen v. Anderson, 195 Va. 655 , 79 S.E.2d 597, 1954 Va. LEXIS 144 (1954); Davis v. Marr, 200 Va. 479 , 106 S.E.2d 722, 1959 Va. LEXIS 129 (1959).

    This section expressly gives such consent for suits upon certain claims. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 , 1918 Va. LEXIS 23 (1918).

    Ever since 1778 all persons have enjoyed, by express statute, this right to sue the State. Parsons v. Commonwealth, 80 Va. 163 , 1885 Va. LEXIS 52 (1885).

    The statute will be liberally construed. Green v. Marye, 112 Va. 352 , 71 S.E. 555 , 1911 Va. LEXIS 92 (1911); Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 , 1918 Va. LEXIS 23 (1918); Commonwealth v. Chilton Malting Co., 154 Va. 28 , 152 S.E. 336 , 1930 Va. LEXIS 194 (1930).

    When doctrine of sovereign immunity applies. —

    Where judgment would act directly against the state, and the state is the real party in interest, the doctrine of sovereign immunity applies regardless of the status of the named defendant. Medicenters of Am., Inc. v. Virginia, 373 F. Supp. 305, 1974 U.S. Dist. LEXIS 9329 (E.D. Va. 1974).

    Exclusivity of provisions. —

    This chapter provides the only cases and procedure in which actions may be maintained against the State. Sayers v. Bullar, 180 Va. 222 , 22 S.E.2d 9, 1942 Va. LEXIS 161 (1942); Eriksen v. Anderson, 195 Va. 655 , 79 S.E.2d 597, 1954 Va. LEXIS 144 (1954).

    Procedure under this article is provided for in the three sections immediately following. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 , 1918 Va. LEXIS 23 (1918).

    Applicable to pecuniary obligations based upon contracts. —

    If it is alleged that out of the exercise of governmental discretion there arises a pecuniary obligation of the State, based upon a contract, the Circuit Court of the City of Richmond is open for the determination of that issue. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 , 1918 Va. LEXIS 23 (1918).

    The State will not be astute to escape inquiry into its liability for its alleged contracts, or to take advantage of technical defenses which are permissible to other litigants. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 , 1918 Va. LEXIS 23 (1918); Western State Hosp. v. Mackey, 151 Va. 495 , 145 S.E. 419 , 1928 Va. LEXIS 249 (1928); Commonwealth v. Chilton Malting Co., 154 Va. 28 , 152 S.E. 336 , 1930 Va. LEXIS 194 (1930).

    Waiver of immunity in state courts does not necessarily operate as a consent to be sued in federal court. Medicenters of Am., Inc. v. Virginia, 373 F. Supp. 305, 1974 U.S. Dist. LEXIS 9329 (E.D. Va. 1974).

    A state has the power to waive sovereign immunity in state courts without affecting sovereign immunity in federal courts. Medicenters of Am., Inc. v. Virginia, 373 F. Supp. 305, 1974 U.S. Dist. LEXIS 9329 (E.D. Va. 1974).

    Clear legislative intent to waive immunity in federal courts not expressed in section. —

    In order for a waiver of sovereign immunity to be found effective as to actions brought in a federal court, as well as to actions brought in the state’s own courts, a clear legislative intent to that effect must be found. A “clear legislative intent” has not been expressed to extend the provisions of this section, effectively waiving the bar of sovereign immunity, to actions brought in federal court. Medicenters of Am., Inc. v. Virginia, 373 F. Supp. 305, 1974 U.S. Dist. LEXIS 9329 (E.D. Va. 1974).

    The claims dealt with by this section are those which are payable out of the state treasury in pursuance of appropriations made by law. Hence jurisdiction over an action against a state-created tunnel district and commission to recover compensation for damage to property was not limited to the Circuit Court of the City of Richmond. Morris v. Elizabeth River Tunnel Dist., 203 Va. 196 , 123 S.E.2d 398, 1962 Va. LEXIS 127 (1962).

    Proceedings based upon contracts will lie against the State and its agencies by authority of this statute. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 , 1918 Va. LEXIS 23 (1918); Commonwealth v. Chilton Malting Co., 154 Va. 28 , 152 S.E. 336 , 1930 Va. LEXIS 194 (1930); Davis v. Marr, 200 Va. 479 , 106 S.E.2d 722, 1959 Va. LEXIS 129 (1959).

    Whether the claims be liquidated or unliquidated. —

    Under this section the State may be sued for any debt or claim due, whether liquidated or unliquidated. Higginbotham v. Commonwealth, 66 Va. (25 Gratt.) 627 (1874), cited in Parsons v. Commonwealth, 1885 Va. LEXIS 52, 80 Va. 163 (1885).

    But actions based upon torts are not authorized against the State, or its governmental agencies, by this section. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 , 1918 Va. LEXIS 23 (1918); Commonwealth v. Chilton Malting Co., 154 Va. 28 , 152 S.E. 336 , 1930 Va. LEXIS 194 (1930); Sayers v. Bullar, 180 Va. 222 , 22 S.E.2d 9, 1942 Va. LEXIS 161 (1942); Eriksen v. Anderson, 195 Va. 655 , 79 S.E.2d 597, 1954 Va. LEXIS 144 (1954).

    There is no statute in Virginia granting a right to sue the State for torts. The power to consent to suit for torts rests in the legislature and not in the judiciary. Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452 , 117 S.E.2d 685, 1961 Va. LEXIS 129 (1961).

    The fact that the Elizabeth River Tunnel District Act provides that it may sue and be sued cannot be advanced as an assertion of state waiver of immunity or state consent to suit for torts. Waiver of immunity cannot be implied from general statutory language or by implication. Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452 , 117 S.E.2d 685, 1961 Va. LEXIS 129 (1961).

    Damages may be recovered only from state officers personally, as a judgment against them in their official capacity would in essence be a judgment against the State of Virginia. Landman v. Royster, 354 F. Supp. 1302, 1973 U.S. Dist. LEXIS 15132 (E.D. Va. 1973).

    An action against state officers in their official capacity generally does not lie under 42 U.S.C. § 1983, since the State is not a “person” within the meaning of that statute. Landman v. Royster, 354 F. Supp. 1302, 1973 U.S. Dist. LEXIS 15132 (E.D. Va. 1973).

    Moreover, such a recovery is barred by the Eleventh Amendment, which prohibits suits against a state without its consent. Landman v. Royster, 354 F. Supp. 1302, 1973 U.S. Dist. LEXIS 15132 (E.D. Va. 1973).

    Action upon failure of Commonwealth to maintain highway crossover. —

    Where the owner of land abutting a limited access highway brought suit against the State Highway Commission (now Commonwealth Transportation Board) and the Commissioner to enjoin them from maintaining a “no left turn” sign at an opening in the median strip dividing the highway opposite complainant’s property, and to recover damages, and complainant alleged that as part of the consideration for a strip of land conveyed by him for the highway the Commonwealth had agreed to construct and maintain permanently a crossover opposite his property so as to allow access to businesses located on his property from the far lane of the highway, the suit was essentially one against the Commonwealth asserting a claim for damages for breach of contract and as such cognizable only in the Circuit Court of the City of Richmond. Davis v. Marr, 200 Va. 479 , 106 S.E.2d 722, 1959 Va. LEXIS 129 (1959).

    Suit to enjoin clerk of court. —

    This section has no application to a suit to enjoin a clerk of court from receiving the money on an insufficient application to purchase delinquent lands, and from making a deed to the purchaser. Baker v. Briggs, 99 Va. 360 , 38 S.E. 277 , 1901 Va. LEXIS 52 (1901).

    B.Actions Based Upon Exercise of Eminent Domain Power.

    Action may be brought under Va. Const., Art. I, § 11, against agency having power of eminent domain. —

    A common-law action may be successfully maintained under Va. Const., Art. I, § 11, against an agency of the State clothed with the power of eminent domain to recover compensation for damage done to property by such agency in effecting a public improvement. Heldt v. Elizabeth River Tunnel Dist., 196 Va. 477 , 84 S.E.2d 511, 1954 Va. LEXIS 242 (1954); Morris v. Elizabeth River Tunnel Dist., 203 Va. 196 , 123 S.E.2d 398, 1962 Va. LEXIS 127 (1962).

    Such action is not based on tort liability. —

    An action against an agency of the State to recover compensation for property taken or damaged for public uses is not an action predicated on tort liability or negligence. Rather it is based on Va. Const., Art. I, § 11. Morris v. Elizabeth River Tunnel Dist., 203 Va. 196 , 123 S.E.2d 398, 1962 Va. LEXIS 127 (1962).

    Va. Const., Art. I, § 11 and eminent domain statutes inapplicable to tortious or unlawful acts. —

    Where petitioners sought to mandamus to compel Highway Commissioner (now Commonwealth Transportation Commissioner) to institute condemnation proceedings to fix damages caused by negligent operation of stone quarry by commissioner’s agents contending that the proceeding was not one for a tort but one under the eminent domain statutes to compel compensation for property damage as required by Va. Const., Art. I, § 11, mandamus was refused since neither the Constitution nor the eminent domain statutes have application to tortious or unlawful acts. Eriksen v. Anderson, 195 Va. 655 , 79 S.E.2d 597, 1954 Va. LEXIS 144 (1954).

    CIRCUIT COURT OPINIONS

    Basic statutory requirements for filing pecuniary claim against Commonwealth met. —

    University’s plea in bar was overruled as the developers complied with the basic statutory requirements for filing a pecuniary claim against the Commonwealth of Virginia; while a demand failed to make a demand for damages, an affiant averred that the developers discussed their damages claims with the university’s president, who disallowed the claims. The developers’ motion to amend their complaint to add the Virginia Comptroller as a necessary party was granted. Geographic Network Affiliates-International, Inc. v. Enter. for Empowerment Found., 69 Va. Cir. 428, 2006 Va. Cir. LEXIS 94 (Norfolk Jan. 12, 2006).

    § 8.01-193. Defense and hearing.

    In every such case, the Comptroller shall be a defendant. He shall file an answer stating the objections to the claim. The cause shall be heard upon the petition, answer, and the evidence.

    History. Code 1950, § 8-753; 1977, c. 617.

    CASE NOTES

    Dismissing petition as to state held not reversible error. —

    After a creditor filed his petition against the state and the Auditor of Public Accounts, praying judgment against the state for the amount of his debt, the court ex mero motu dismissed the petition against the state, but retained it against the Auditor and summoned him to answer and show cause why judgment should not be entered against the state for the amount claimed. It was held that, though the order dismissing the petition against the state may have been unnecessary, yet as it did not affect the petitioner’s right or remedy, it was not reversible error. Parsons v. Commonwealth, 80 Va. 163 , 1885 Va. LEXIS 52 (1885) (decided under prior law).

    Action alleging breach of contract. —

    Record supported the jury’s verdict that Virginia Polytechnic Institute and State University waived its right to demand payment from a corporation under a sponsored research agreement and that the university breached an industry project agreement, which the parties subsequently concluded. Va. Polytechnic Inst. & State Univ. v. Interactive Return Serv., 267 Va. 642 , 595 S.E.2d 1, 2004 Va. LEXIS 67 (2004) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Motion to add comptroller as party granted. —

    University’s plea in bar was overruled as the developers complied with the basic statutory requirements for filing a pecuniary claim against the Commonwealth of Virginia; while a demand failed to make a demand for damages, an affiant averred that the developers discussed their damages claims with the university’s president, who disallowed the claims. The developers’ motion to amend their complaint to add the Virginia Comptroller as a necessary party was granted. Geographic Network Affiliates-International, Inc. v. Enter. for Empowerment Found., 69 Va. Cir. 428, 2006 Va. Cir. LEXIS 94 (Norfolk Jan. 12, 2006).

    § 8.01-194. Jury may be impaneled; judgment.

    The court may, and on the motion of any party shall, cause a jury to be impaneled to ascertain any facts which are disputed, or the amount of any claim which is unliquidated.

    History. Code 1950, § 8-754; 1977, c. 617.

    REVISERS’ NOTE

    Added to former § 8-754 is the language “on motion of either party the Court shall”; the last sentence has been deleted as unnecessary.

    Former § 8-755 (Facts to be certified) has been deleted as unnecessary.

    § 8.01-195. No judgment to be paid without special appropriation.

    No judgment against the Commonwealth, unless otherwise expressly provided, shall be paid without a special appropriation therefor by law.

    History. Code 1950, § 8-756; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-757 (When suits may not be brought) has been deleted. For statute of limitations, see § 8.01-255 .

    Former § 8-759 (In what court brought) has been deleted. For venue, see § 8.01-257 ff.

    Law Review.

    For a review of damages in medical malpractice in Virginia, see 33 U. Rich. L. Rev. 919 (1999).

    Michie’s Jurisprudence.

    For related discussion, see 21 M.J. Workers’ Compensation, § 6.

    CASE NOTES

    Editor’s note.

    This section limits the effect of judgments or decrees which may be rendered against the Commonwealth in proceedings under this article. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 , 1918 Va. LEXIS 23 (1918); Davis v. Marr, 200 Va. 479 , 106 S.E.2d 722, 1959 Va. LEXIS 129 (1959).

    Which merely establish the claims sued on. —

    Proceedings under this article, if they result in a judgment, simply establish the claim sued on. No execution can be levied thereunder to subject either the property of the State, its governmental agencies, or that of persons constituting such governmental agency. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 , 1918 Va. LEXIS 23 (1918).

    And a special appropriation is necessary before payment of the demand established by a judgment or decree under this article. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 , 1918 Va. LEXIS 23 (1918).

    But the legislature cannot be required to make the appropriation referred to in this section. Smith v. State Hwy. Comm'n, 131 Va. 571 , 109 S.E. 312 , 1921 Va. LEXIS 47 (1921).

    Article 18.1. Tort Claims Against the Commonwealth of Virginia.

    § 8.01-195.1. Short title.

    This article shall be known and may be cited as the “Virginia Tort Claims Act.”

    History. 1981, c. 449.

    Cross references.

    As to sovereign immunity and the Division of Risk Management, see § 2.2-1842.

    Law Review.

    For a re-examination of sovereign tort immunity in Virginia, see 15 U. Rich. L. Rev. 247 (1981).

    For note on the abrogation of sovereign immunity in Virginia: The Virginia Tort Claims Act, see 7 G.M.U. L. Rev. 291 (1984).

    For comment on local liability for negligent inspection of buildings and equipment, see 18 U. Rich. L. Rev. 809 (1984).

    For a note, “A Duty Not to Become a Victim: Assessing the Plaintiff’s Fault in Negligent Security Actions,” see 57 Wash. & Lee L. Rev. 611 (2000).

    Michie’s Jurisprudence.

    For related discussion, see 16 M.J. Reference and Commissioners, § 2.

    CASE NOTES

    For discussion of doctrine of sovereign immunity, see Hinchey v. Ogden, 226 Va. 234 , 307 S.E.2d 891, 1983 Va. LEXIS 311 (1983).

    Article essentially waives state’s sovereign immunity to the extent of $25,000 per claim. Al-Mustafa Irshad v. Spann, 543 F. Supp. 922, 1982 U.S. Dist. LEXIS 13674 (E.D. Va. 1982).

    But not the sovereign immunity of the Commonwealth’s agencies. —

    Because the Virginia Tort Claims Act, § 8.01-195.1 et seq., provided a waiver only of the Commonwealth’s sovereign immunity but did not disturb the sovereign immunity of the Commonwealth’s agencies, plaintiff employee’s tortious interference claim was dismissed as to defendant university, which was an agency of the Commonwealth. Cominelli v. Rector & Visitors of the Univ. of Va., 589 F. Supp. 2d 706, 2008 U.S. Dist. LEXIS 99428 (W.D. Va. 2008), aff'd, 362 Fed. Appx. 359, 2010 U.S. App. LEXIS 1562 (4th Cir. 2010).

    Doctrine of sovereign immunity has largely disappeared for tort claims accruing on or after July 1, 1982, since on that date, this article went into effect. Al-Mustafa Irshad v. Spann, 543 F. Supp. 922, 1982 U.S. Dist. LEXIS 13674 (E.D. Va. 1982).

    Doctrine of sovereign immunity is “alive and well” in Virginia. Though the Supreme Court has, over the years, discussed the doctrine in a variety of contexts and refined it for application to constantly shifting facts and circumstances, it has never seen fit to abolish it. Nor does the General Assembly want the doctrine abolished. Messina v. Burden, 228 Va. 301 , 321 S.E.2d 657, 1984 Va. LEXIS 203 (1984).

    Not a waiver of immunity under Eleventh Amendment. —

    This section waives sovereign immunity in some cases for tort liability provided the suit is filed in state court. Such waiver may not properly be construed as a waiver of immunity under the U.S. Const., Amend. XI to the same or similar suits in federal court. Reynolds v. Sheriff, City of Richmond, 574 F. Supp. 90, 1983 U.S. Dist. LEXIS 12351 (E.D. Va. 1983).

    The Virginia Tort Claims Act, while generally waiving sovereign immunity for tort claims filed in state courts, does not waive the state’s Eleventh Amendment immunity. McConnell v. Adams, 829 F.2d 1319, 1987 U.S. App. LEXIS 13009 (4th Cir. 1987), cert. denied, 486 U.S. 1006, 108 S. Ct. 1731, 100 L. Ed. 2d 195, 1988 U.S. LEXIS 2254 (1988).

    District court’s ability to take jurisdiction over a Virginia Tort Claims Act (VTCA), § 8.01-195.1 et seq., claim is doubtful because the Virginia legislature has expressly limited the jurisdiction over VTCA claims to Virginia state courts; it is unclear whether 28 U.S.C.S. § 1367, which allows for supplemental jurisdiction, overcomes the sovereign immunity bar to hearing a claim that the Commonwealth has only allowed state courts to hear. Creed v. Virginia, 596 F. Supp. 2d 930, 2009 U.S. Dist. LEXIS 1769 (E.D. Va. 2009).

    Removal from district court. —

    Whether removal was proper turned on whether the Commonwealth should be considered merely a nominal or formal party, or, instead, a real party in interest whose failure to join the petition for removal required the court to remand the case and a reasonable basis existed for predicting that the Commonwealth could be liable. Whether the Commonwealth could be liable for the actions of the detention center’s employees under the Virginia Tort Claims Act (VTCA), § 8.01-195.1 et seq., depended on the construction of a statute that committed all causes of action brought under it exclusively to the Virginia courts and any decision rendered by the instant court on the breadth of the VTCA necessarily intruded on the Commonwealth’s interest in defining the scope of its waiver of sovereign immunity. Creed v. Virginia, 596 F. Supp. 2d 930, 2009 U.S. Dist. LEXIS 1769 (E.D. Va. 2009).

    Injunctive relief as to future conduct of state officials. —

    The state’s Eleventh Amendment immunity does not protect it from suits for injunctive relief governing its officials’ future conduct. McConnell v. Adams, 829 F.2d 1319, 1987 U.S. App. LEXIS 13009 (4th Cir. 1987), cert. denied, 486 U.S. 1006, 108 S. Ct. 1731, 100 L. Ed. 2d 195, 1988 U.S. LEXIS 2254 (1988).

    Postdeprivation remedy to prison inmates. —

    This article clearly provides a meaningful postdeprivation remedy to prison inmates for tort claims of $25,000 or less accruing after July 1, 1982. Al-Mustafa Irshad v. Spann, 543 F. Supp. 922, 1982 U.S. Dist. LEXIS 13674 (E.D. Va. 1982).

    Act provides remedy to prison inmate not given credit for time in jail in another state. —

    A former inmate in Virginia’s prison system could not bring action under 42 U.S.C. § 1983 for compensatory and punitive damages for having been held seven days longer than he would have been if he had been given credit for seven days spent in a jail in Florida, before Virginia authorities obtained custody of him, because the Tort Claims Act provided adequate tort remedies for post-deprivation compensation. Wadhams v. Procunier, 772 F.2d 75, 1985 U.S. App. LEXIS 21718 (4th Cir. 1985), disapproved, Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975, 108 L. Ed. 2d 100, 1990 U.S. LEXIS 1171 (1990).

    Assault on inmate by prison guard. —

    The Tort Claims Act provided an adequate remedy where a prison guard allegedly assaulted an inmate. Accordingly, plaintiff stated no procedural due process claim. Perry v. Walker, 586 F. Supp. 1264, 1984 U.S. Dist. LEXIS 17094 (E.D. Va. 1984).

    Negligent injury of inmate not deprivation of liberty. —

    An inmate at the city jail in Richmond who was injured when he slipped on a pillow negligently left on the stairs by respondent, a correctional deputy stationed at the jail, was not “deprived” of his “liberty” interest under the Fourteenth Amendment in freedom from bodily injury. The due process clause of the Fourteenth Amendment is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property. Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662, 1986 U.S. LEXIS 43 (1986) (decision as to action accruing before effective date of this article).

    CIRCUIT COURT OPINIONS

    Police officer responding to a call. —

    Sovereign immunity applies to a police officer involved in an automobile accident that occurs after the official call to which the officer was responding had been cancelled but before the officer was aware of the cancellation. Reid v. Hammer, 62 Va. Cir. 251, 2003 Va. Cir. LEXIS 284 (Richmond July 8, 2003).

    OPINIONS OF THE ATTORNEY GENERAL

    No sovereign immunity if county performs building inspections using another state’s building code standards. —

    A county may not enter into an agreement with another state to perform building inspections of industrialized buildings manufactured in a Virginia facility, to determine compliance with the building code of the other state. Neither the county nor its employees would be entitled to the protection of sovereign immunity with respect to the performance of such inspections. See opinion of Attorney General to C. Eric Young, Esquire, County Attorney for Tazewell County, 13-073, 2013 Va. AG LEXIS 84 (10/11/13).

    § 8.01-195.2. Definitions.

    As used in this article:

    “Agency” means any department, institution, authority, instrumentality, board or other administrative agency of the government of the Commonwealth of Virginia and any transportation district created pursuant to the Transportation District Act of 1964 (§ 33.2-1900 et seq.) of Title 33.2 and Chapter 630 of the 1964 Acts of Assembly.

    “Employee” means any officer, employee or agent of any agency, or any person acting on behalf of an agency in an official capacity, temporarily or permanently in the service of the Commonwealth, or any transportation district, whether with or without compensation.

    “School boards” as defined in § 22.1-1 are not state agencies nor are employees of school boards state employees.

    “Transportation district” shall be limited to any transportation district or districts which have entered into an agreement in which the Northern Virginia Transportation District is a party with any firm or corporation as an agent to provide passenger rail services for such district or districts while such firm or corporation is performing in accordance with such agreement.

    History. 1981, c. 449; 1986, cc. 534, 584; 1991, c. 23.

    Editor’s note.

    Chapter 630 of the 1964 Acts of Assembly, referred to in the definition of “Agency” was repealed by Acts 2004, c. 1000, cl. 3.

    Acts 1986, c. 584, cl. 2, as amended by Acts 1988, c. 801, cl. 2, provided that the provisions of the 1986 act shall have no force and effect after July 1, 1990, unless reenacted by the General Assembly prior to such date. Since the General Assembly did not reenact the amendatory provisions of Acts 1986, c. 584, as amended, prior to July 1, 1990, the provisions expired.

    References in this section were updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

    Law Review.

    For comment on local liability for negligent inspection of buildings and equipment, see 18 U. Rich. L. Rev. 809 (1984).

    CIRCUIT COURT OPINIONS

    Entities covered. —

    Because the Eastern Virginia Medical School had previously been deemed a municipality and was not a part of the government of the Commonwealth, it was not subject to the provisions of the Virginia Tort Claims Act, §§ 8.01-195.1 through 8.01-216 ; therefore, the Commonwealth was not liable for the negligence of the school’s employees. Baird v. Stokes, 82 Va. Cir. 56, 2011 Va. Cir. LEXIS 145 (Norfolk Apr. 5, 2011), dismissed in part, 84 Va. Cir. 263, 2012 Va. Cir. LEXIS 113 (Norfolk Feb. 2, 2012).

    OPINIONS OF THE ATTORNEY GENERAL

    Sovereign immunity. —

    Supreme Court likely would find VCU Health System Authority to be an arm of the Commonwealth and therefore entitled to absolute immunity. Even if the Court were not to agree, however, VCU Health System Authority also satisfies the criteria of a quasi-municipal corporation and therefore would be entitled to immunity for governmental functions. The Virginia Tort Claims Act exposes the Commonwealth, but not VCU Health System Authority, to limited liability for the negligent acts of its employees. See opinion of Attorney General to The Honorable James P. “Jimmie” Massie III, Member, Virginia House of Delegates, 17-005, 2017 Va. AG LEXIS 26 (12/7/17).

    § 8.01-195.3. Commonwealth, transportation district or locality liable for damages in certain cases.

    Subject to the provisions of this article, the Commonwealth shall be liable for claims for money only accruing on or after July 1, 1982, and any transportation district shall be liable for claims for money only accruing on or after July 1, 1986, on account of damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth or transportation district, if a private person, would be liable to the claimant for such damage, loss, injury or death. However, except to the extent that a transportation district contracts to do so pursuant to § 33.2-1919 , neither the Commonwealth nor any transportation district shall be liable for interest prior to judgment or for punitive damages. The amount recoverable by any claimant shall not exceed (i) $25,000 for causes of action accruing prior to July 1, 1988, $75,000 for causes of action accruing on or after July 1, 1988, or $100,000 for causes of action accruing on or after July 1, 1993, or (ii) the maximum limits of any liability policy maintained to insure against such negligence or other tort, if such policy is in force at the time of the act or omission complained of, whichever is greater, exclusive of interest and costs.

    Notwithstanding any provision hereof, the individual immunity of judges, the Attorney General, attorneys for the Commonwealth, and other public officers, their agents and employees from tort claims for damages is hereby preserved to the extent and degree that such persons presently are immunized. Any recovery based on the following claims are hereby excluded from the provisions of this article:

    1. Any claim against the Commonwealth based upon an act or omission which occurred prior to July 1, 1982.
    2. Any claim based upon an act or omission of the General Assembly or district commission of any transportation district, or any member or staff thereof acting in his official capacity, or to the legislative function of any agency subject to the provisions of this article.
    3. Any claim based upon an act or omission of any court of the Commonwealth, or any member thereof acting in his official capacity, or to the judicial functions of any agency subject to the provisions of this article.
    4. Any claim based upon an act or omission of an officer, agent or employee of any agency of government in the execution of a lawful order of any court.
    5. Any claim arising in connection with the assessment or collection of taxes.
    6. Any claim arising out of the institution or prosecution of any judicial or administrative proceeding, even if without probable cause.
    7. Any claim by an inmate of a state correctional facility, as defined in § 53.1-1, unless the claimant verifies under oath, by affidavit, that he has exhausted his remedies under the adult institutional inmate grievance procedures promulgated by the Department of Corrections. The time for filing the notice of tort claim shall be tolled during the pendency of the grievance procedure.Nothing contained herein shall operate to reduce or limit the extent to which the Commonwealth or any transportation district, agency or employee was deemed liable for negligence as of July 1, 1982, nor shall any provision of this article be applicable to any county, city or town in the Commonwealth or be so construed as to remove or in any way diminish the sovereign immunity of any county, city or town in the Commonwealth.

    1a. Any claim against a transportation district based upon an act or omission which occurred prior to July 1, 1986.

    History. 1981, c. 449; 1982, c. 397; 1986, c. 584; 1988, c. 884; 1989, c. 446; 1993, c. 481; 1998, cc. 203, 820; 2007, c. 250.

    Editor’s note.

    Acts 1986, c. 584, which amended this section, as amended by Acts 1988, c. 801, purported to provide for expiration of the provisions of the 1986 act on July 1, 1990. However, in light of the amendment and reenactment of this section by Acts 1988, c. 884 and Acts 1989, c. 446, at the direction of the Code Commission, the expiration provisions of Acts 1986, c. 584, as amended in 1988, have been given no further effect.

    A reference in this section was updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

    Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 285 C, effective for the biennium ending June 30, 2022, provides: “Notwithstanding the provisions of § 33.2-1919 and § 33.2-1927 , Code of Virginia, the Northern Virginia Transportation Commission and the Potomac Rappahannock Transportation Commission are authorized to obtain liability policies for the Commissions’ joint project, the Virginia Railway Express, consisting of liability insurance and a program of self-insurance maintained by the Commissions and administered by the Department of the Treasury’s Division of Risk Management or by an independent third party selected by the Commissions, which liability policies shall be deemed to meet the requirements of § 8.01-195.3 , Code of Virginia. In addition, the Director of the Department of Rail and Public Transportation is authorized to work with the Northern Virginia Transportation Commission and the Potomac Rappahannock Transportation Commission to obtain the foregoing liability policies for the Commissions. In obtaining liability policies, the Director of the Department of Rail and Public Transportation shall advise the Commissions regarding compliance with all applicable public procurement and administrative guidelines.”

    The 2007 amendments.

    The 2007 amendment by c. 250, deleted former subdivision 8, which read: “Any claim arising from the failure of a computer, software program, database, network, information system, firmware or any other device, whether operated by or on behalf of the Commonwealth of Virginia or one of its agencies, to interpret, produce, calculate, generate, or account for a date which is compatible with the ‘Year 2000’ date change.”

    Law Review.

    For comment on local liability for negligent inspection of buildings and equipment, see 18 U. Rich. L. Rev. 809 (1984).

    For note on the abrogation of sovereign immunity in Virginia: The Virginia Tort Claims Act, see 7 G.M.U. L. Rev. 291 (1984).

    For comment, “Obstacles to Holding a Parole Official in Virginia Liable for the Negligent Release or Supervision of a Parolee,” see 22 U. Rich. L. Rev. 83 (1987).

    For a note, “A Duty Not to Become a Victim: Assessing the Plaintiff’s Fault in Negligent Security Actions,” see 57 Wash. & Lee L. Rev. 611 (2000).

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For article, “A Declaratory Theory of State Accountability,” see 102 Va. L. Rev. 153 (2016).

    For article, “The Damagings Clauses,” see 104 Va. L. Rev. 341 (2018).

    For Washington & Lee Law Alumni Association Student Notes Colloquium, “If a Tree Falls in a Roadway, Is Anyone Liable?: Proposing the Duty of Reasonable Care for Virginia’s Road-Maintaining Entities,” see 76 Wash & Lee L. Rev. 509 (2019).

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Prisons and Prisoners, §§ 5, 8.

    CASE NOTES

    This section is a limited waiver of governmental immunity from tort claims and not a legislative definition of the Commonwealth’s duty of care to those with claims against it. Commonwealth v. Coolidge, 237 Va. 621 , 379 S.E.2d 338, 5 Va. Law Rep. 2360, 1989 Va. LEXIS 90 (1989).

    This section was a limited waiver of the sovereign immunity of the Commonwealth of Virginia and certain “transportation districts” only, and did not waive the sovereign immunity of agencies of the Commonwealth and, as no other statutory or constitutional provision waived such immunity, the Commonwealth’s university could not be held liable for a patient’s medical malpractice claim. Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242 , 591 S.E.2d 76, 2004 Va. LEXIS 11 (2004).

    Section does not limit damages recoverable from transit authority nor exempt transit authority from requirements of Tort Claims Act. —

    Limits on recoverable damage stated in Virginia Tort Claims Act were not applicable to Washington Metropolitan Transit Authority, even though considered part of state government; language of compact creating Transit Authority amounted to waiver of right of sovereign immunity, does not contain any limitation on the amount of compensatory damages that a plaintiff may recover, and does not mention or refer to the Virginia Tort Claims Act. Washington Metro. Area Transit Auth. v. Briggs, 255 Va. 309 , 497 S.E.2d 139, 1998 Va. LEXIS 51 (1998).

    Only negligent conduct is protected by the statute; acts constituting gross negligence or intentional torts are not immunized. Coppage v. Mann, 906 F. Supp. 1025, 1995 U.S. Dist. LEXIS 16802 (E.D. Va. 1995).

    Section fails to provide adequate postdeprivation remedy for loss of right to appeal. Hutchins v. Carrillo, 27 Va. App. 595, 500 S.E.2d 277, 1998 Va. App. LEXIS 336 (1998).

    Notice of claim requirements. —

    Where there was only one University of Virginia Medical Center in Charlottesville, an administrator’s notice of claim that identified the hospital, stated that the decedent was admitted to that hospital, and that while there the patient was injured by the alleged medical negligence of the employees of that hospital, these assertions reasonably identified the place at which the alleged wrongful death occurred to put the Commonwealth on notice of said claim; § 8.01-195.6 did not mandate that the administrator identify the floor or room within the hospital where the alleged injury occurred, as such degree of specificity was unnecessary to accomplish the purpose of the statute. Bates v. Commonwealth, 267 Va. 387 , 593 S.E.2d 250, 2004 Va. LEXIS 28 (2004).

    Test in determining governmental employee’s claims of immunity. —

    In determining government employees’ claims of immunity, the court examines the function employee was performing and the extent of the state’s interest and involvement in that function. Whether the act performed involves the use of judgment and discretion is a consideration, but it is not always determinative. Of equal importance is the degree of control and direction exercised by the state over the employee whose negligence is involved. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642, 9 Va. Law Rep. 1454, 1993 Va. LEXIS 90 (1993).

    Broad discretion weighs in favor of immunity claim. —

    If a broad discretion is vested in a government employee in performing the function complained of, it will weigh heavily in favor of a government employee’s claim of immunity. The court has not limited the element of discretion in determining governmental immunity to governmental policymakers; it has been extended to a state-employed physician. Resolution of the issue of sovereign immunity goes beyond determining whether the act constitutes the formulation or execution of policy. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642, 9 Va. Law Rep. 1454, 1993 Va. LEXIS 90 (1993).

    Subdivision 4 does not exclude discretionary acts from its scope; instead, it specifically encompasses any claim that is based upon acts or omissions occurring in the execution of a lawful court order. Baumgardner v. Southwestern Va. Mental Health Inst., 247 Va. 486 , 442 S.E.2d 400, 10 Va. Law Rep. 1245, 1994 Va. LEXIS 58 (1994).

    Exception for execution of court order. —

    The exception in subdivision 4 which precludes any claim “based upon an act or omission of an officer, agent or employee of any agency of government in the execution of a lawful order of any court” did not bar a claim based on the negligence of government employees in treating an incarcerated prisoner in that the plaintiff’s claim did not involve employees who were implementing the directives of a court order to provide medical evaluation and care but, rather, employees at a correctional facility who were providing medical care to the plaintiff’s decedent because he was an inmate of that facility. Whitley v. Commonwealth, 260 Va. 482 , 538 S.E.2d 296, 2000 Va. LEXIS 143 (2000).

    Death of involuntarily hospitalized inmate. —

    Where acts and omissions of the state hospital’s employees alleged to have caused decedent’s death occurred in the execution of a lawful court order for involuntary hospitalization and treatment, dismissal of motion for judgement based on those discretionary acts would be upheld, as under subdivision 4 of § 8.01-195.3 the Commonwealth was immune from liability. Patten v. Commonwealth, 262 Va. 654 , 553 S.E.2d 517, 2001 Va. LEXIS 118 (2001).

    Nuisance claims. —

    Claims against the Commonwealth sounding in nuisance regarding the acts or omissions of an agency of the Commonwealth in the design of a sidewalk were barred under the doctrine of sovereign immunity as those claims fell under the legislative function exception to the waiver of the same. Maddox v. Commonwealth, 267 Va. 657 , 594 S.E.2d 567, 2004 Va. LEXIS 61 (2004).

    Commonwealth’s interest and involvement in employee’s function. —

    If the function that a government employee was negligently performing was essential to a governmental objective and the government had a great interest and involvement in that function, those factors would weigh in favor of the employee’s claim of sovereign immunity. On the other hand, if that function has only a marginal influence upon a governmental objective, and the government’s interest and involvement in that function are “slight,” these factors weigh against granting governmental immunity to a government employee. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642, 9 Va. Law Rep. 1454, 1993 Va. LEXIS 90 (1993).

    Extent of government control influences consideration of immunity claim. —

    The extent of a government’s control and direction of its employee also influences consideration of that employee’s claim of immunity. A high level of control weighs in favor of immunity; a low level of such control weighs against immunity. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642, 9 Va. Law Rep. 1454, 1993 Va. LEXIS 90 (1993).

    Wide discretion and higher level of governmental control. —

    The issue of wide discretion that influences consideration of the grant of governmental immunity appears to be at odds with consideration of a higher level of governmental control. However, when a government employee is specially trained to make discretionary decisions, the government’s control must necessarily be limited in order to make maximum use of the employee’s special training and subsequent experience. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642, 9 Va. Law Rep. 1454, 1993 Va. LEXIS 90 (1993).

    Sovereign immunity not limited to when employees follow “state established rules.” —

    Doctrine of sovereign immunity is not limited to those instances in which specially trained state employees follow “state-established rules,” “state-prescribed methods,” or “state-standardized procedures.” These factors were considerations in concluding that the necessary control element was present, but such constraints are not required to establish the necessary governmental control over a state employee who is a professional. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642, 9 Va. Law Rep. 1454, 1993 Va. LEXIS 90 (1993).

    County entitled to sovereign immunity in tort claim. —

    Trial court should have granted a county’s special plea of sovereign immunity in a personal injury suit because, inter alia, Virginia Tort Claims Act, by § 8.01-195.3 , excluded counties from its limited abrogation of immunity; the second paragraph of § 15.2-1809 conferred the common-law immunity created in the first paragraph for cities and towns onto counties “in addition to” the immunity counties already enjoy, and did not in any way abrogate the sovereign immunity of counties; § 15.2-1243 et seq. did not apply to tort claims. Seabolt v. County of Albemarle, 283 Va. 717 , 724 S.E.2d 715, 2012 Va. LEXIS 88 (2012).

    As applicable to § 8.01-35.1 set off. —

    Trial court improperly applied a set off under § 8.01-35.1 for a driver’s settlement with a passenger and a liability limit of $100,000 in § 8.01-195.3 of the Virginia Tort Claims Act prior to a jury verdict in an action against the Commonwealth for negligence and nuisance; it was the jury’s responsibility to determine the amount of damages, and then the set off and the liability limit, respectively, should be applied to the jury verdict. Torloni v. Commonwealth, 274 Va. 261 , 645 S.E.2d 487, 2007 Va. LEXIS 90 (2007).

    Relationship with inmate statute. —

    To apply the limitations period of the inmate statute, § 8.01-243.2 , to an inmate’s negligence action against the Commonwealth of Virginia would have impliedly repealed the tolling provisions in subdivision 7 of § 8.01-195.3 of the Virginia Tort Claims Act, §§ 8.01-195.1 to 8.01-195.9 ; instead of such a disfavored result, the provisions could be harmonized, because the inmate statute applies to all classes of litigation pertaining to conditions of confinement, while the Act applies only to tort actions against the Commonwealth. Ogunde v. Commonwealth, 271 Va. 639 , 628 S.E.2d 370, 2006 Va. LEXIS 45 (2006).

    Tolling provision of Virginia Tort Claims Act did not apply to inmate’s § 1983 action because it operated on tighter schedule than § 1983, and Act did not govern suits against state employees. Battle v. Ledford, 912 F.3d 708, 2019 U.S. App. LEXIS 528 (4th Cir. 2019).

    Inmate exception. —

    The exception in subdivision 7 requiring the filing of an affidavit with respect to “any claim by an inmate of a state correctional facility,” did not apply to a wrongful death action by a deceased inmate’s administrator in that the administrator was not an inmate of a correctional facility and there was nothing in the statutory language indicating that a claim filed by an administrator of the estate of a deceased inmate was subject to the affidavit requirement. Whitley v. Commonwealth, 260 Va. 482 , 538 S.E.2d 296, 2000 Va. LEXIS 143 (2000).

    Inmate exhausted administrative remedies. —

    Where the evidence showed that an inmate reported an officer’s sexual conduct within 30 days of the last attack, cooperated with an investigation, and had a grievance proceed through the administrative processes, the inmate had exhausted all administrative remedies prior to filing an action in a court of law. Billups v. Carter, 268 Va. 701 , 604 S.E.2d 414, 2004 Va. LEXIS 139 (2004).

    Trial court erred by holding that sovereign immunity barred the inmate’s personal injury action because he exhausted his administrative remedies, as he submitted a timely grievance for a Level I review, the warden issued a response on December 22, 2017, determining that the grievance was unfounded, and the inmate’s Level II grievance appeal declared that it was mailed on December 25, 2017, by placing it in the prison mailing system, which was within five calendar days as required. Albritton v. Commonwealth, 299 Va. 392 , 853 S.E.2d 512, 2021 Va. LEXIS 2 (2021).

    Inmate’s federal civil rights claim was not allowed where this section provided remedy. —

    Inmate’s 42 U.S.C.S. § 1983 action in which the inmate alleged that a city jail officer would not allow the inmate to take certain property with him when he was transferred to a state facility was dismissed under 28 U.S.C.S. § 1915A for failure to state an actionable federal claim because the inmate could pursue an available post-deprivation remedy under Virginia’s Tort Claims Act, § 8.01-195.3 , to recover the monetary value of the confiscated property. Etheridge v. City of Danville Jail, No. 7:05-cv-00398, 2005 U.S. Dist. LEXIS 13390 (W.D. Va. July 5, 2005).

    University was entitled to immunity. —

    University employee’s claim of tortious interference with business expectancy was dismissed as to the university because the Virginia Tort Claims Act’s waiver of immunity did not apply to the Commonwealth’s agencies. Cominelli v. Rector & Bd. of Visitors of the Univ. of Va., 362 Fed. Appx. 359, 2010 U.S. App. LEXIS 1562 (4th Cir. 2010).

    Public university and its agents and employees retained immunity from negligence claims brought against it by former university student. Doe v. Rector & Visitors of George Mason Univ., 132 F. Supp. 3d 712, 2015 U.S. Dist. LEXIS 125230 (E.D. Va. 2015).

    Commonwealth’s immunity from liability for mental health and mental retardation board’s acts and omissions. —

    The plain meaning of this section preserves the Commonwealth’s immunity from liability for the acts and omissions alleged in administrator’s motion for judgment against state mental health and mental retardation board. Baumgardner v. Southwestern Va. Mental Health Inst., 247 Va. 486 , 442 S.E.2d 400, 10 Va. Law Rep. 1245, 1994 Va. LEXIS 58 (1994).

    State-employed physician was entitled to sovereign immunity. —

    Where the Commonwealth controlled absolutely the equipment doctor used, the procedures he could perform and even the brand names of the medication he could prescribe, further, the doctor could not decline to accept a particular person as a patient, the state-employed public health physician was entitled to the protection of the doctrine of sovereign immunity in a medical malpractice case from liability for his alleged acts of ordinary negligence. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642, 9 Va. Law Rep. 1454, 1993 Va. LEXIS 90 (1993).

    County employees were entitled to immunity. —

    In a family’s suit against numerous state, county, and private defendants for separating the daughter from the mother and stepfather for allegations of sexual abuse, caseworkers and a director were immune from suit for malicious prosecution because they were acting in their governmental capacity. Gedrich v. Fairfax County Dep't of Family Servs., 282 F. Supp. 2d 439, 2003 U.S. Dist. LEXIS 16312 (E.D. Va. 2003).

    Workers’ compensation exclusivity. —

    When a subcontractor’s employee was injured while removing electrical conduit from a public university’s building, the university was his statutory employer because the maintenance and preservation of the university’s buildings was something the university was required by § 23-76 to do, so it was part of the university’s trade, business or occupation, and the worker’s remedies against the university were limited to his workers’ compensation remedies, under the exclusivity provision of the Virginia Workers’ Compensation Act, § 65.2-307 A, and the Virginia Tort Claims Act, § 8.01-195.1 et seq. did not waive this exclusivity bar. Jones v. Commonwealth, 267 Va. 218 , 591 S.E.2d 72, 2004 Va. LEXIS 22 (2004).

    CIRCUIT COURT OPINIONS

    Act applies to Commonwealth’s agencies. —

    University of Virginia Medical Center and University of Virginia Health System were not immune from a medical malpractice action, because when § 8.01-195.3 of the Virginia Tort Claims Act, § 8.01-195.1 et seq., revoked the Commonwealth’s immunity, it also revoked the immunity of its agencies. Wright v. Wiedower, 56 Va. Cir. 470, 2001 Va. Cir. LEXIS 487 (Winchester Sept. 26, 2001).

    Directing traffic while off duty. —

    Police officer sued for negligence in directing traffic while off duty was entitled to sovereign immunity because regulating traffic was a governmental function, even when performed by an off-duty officer, which required the use discretion and judgment. Bailey v. Lewis, 85 Va. Cir. 413, 2012 Va. Cir. LEXIS 92 (Portsmouth Oct. 5, 2012).

    State university held immune from suit. —

    In a negligence suit filed by the mothers of minor children who drowned in a university’s pool, as the university was a state agency, it was immune from suit. Pentecost v. Old Dominion Univ., 61 Va. Cir. 270, 2003 Va. Cir. LEXIS 235 (Norfolk Mar. 5, 2003).

    State university employee not immune from suit. —

    In a negligence suit filed by the mothers of minor children who drowned in a state university’s pool, a lifeguard employed by the university was not entitled to immunity because his alleged conduct was arguably intentional or wanton and grossly negligent, and might have been outside the scope of his employment. Pentecost v. Old Dominion Univ., 61 Va. Cir. 270, 2003 Va. Cir. LEXIS 235 (Norfolk Mar. 5, 2003).

    State university mental health counselors not immune. —

    In a damages action arising out of a mass shooting at a state university, the shooter’s mental health counselors and the university counseling center were not entitled to qualified sovereign immunity because the counseling center did not provide services to the public, but to students who paid for the services. Peterson v. Commonwealth, 80 Va. Cir. 21, 2010 Va. Cir. LEXIS 7 (Danville Jan. 12, 2010), dismissed in part, 84 Va. Cir. 239, 2012 Va. Cir. LEXIS 129 (Montgomery County Jan. 25, 2012).

    State agencies immune, as plaintiff failed to bring the action against the Commonwealth. —

    Motion for summary judgment pursuant to former Sup. Ct. R. 3:18 [see now Rule 3:20] by a medical center and a health company was granted, because those defendants were agencies of the Commonwealth and were protected by sovereign immunity pursuant to the Virginian Tort Claims Act, § 8.01-195.3 , as the Virginia Tort Claims Act required an injured person to sue the Commonwealth for the alleged negligence of its agent or agency and rely upon vicarious liability to make the Commonwealth liable. Wright v. Wiedower, 59 Va. Cir. 397, 2002 Va. Cir. LEXIS 368 (Winchester Aug. 28, 2002).

    State university officials immune from simple negligence claims. —

    In a damages action arising out of a mass shooting at a state university, the university president, vice-president, and the university’s emergency policy group members were entitled to qualified sovereign immunity as to simple negligence claims because they occupied executive type positions with the university and participated in its management and operation, and the state had a great interest and involvement in the operation of the university. Peterson v. Commonwealth, 80 Va. Cir. 21, 2010 Va. Cir. LEXIS 7 (Danville Jan. 12, 2010), dismissed in part, 84 Va. Cir. 239, 2012 Va. Cir. LEXIS 129 (Montgomery County Jan. 25, 2012).

    Community college could not be sued in tort. —

    To the extent constructive fraud is alleged and proved, only the Commonwealth may be sued, and to the extent actual fraud is alleged and proved against an individual defendant, that individual defendant is also liable since actual fraud is an intentional tort to which sovereign immunity does not apply; therefore, the community college, whether or not a legal entity, could not be sued in tort by the student. Goff v. J. Sargeant Reynolds Cmty. College, 65 Va. Cir. 479, 2004 Va. Cir. LEXIS 281 (Richmond Sept. 20, 2004).

    County immune from liability. —

    County was immune from liability in a vehicle owner’s action alleging that the county and a park ranger were negligent in failing to secure the front gate to a park so that it would not swing into the path of vehicles because the county was an arm of the Commonwealth, and its sovereign immunity had not been waived. Altizer v. County of Tazewell, 75 Va. Cir. 5, 2008 Va. Cir. LEXIS 13 (Tazewell County Jan. 22, 2008).

    Community services board has qualified immunity. —

    In a damages action arising out of a mass shooting at a state university, a community services board and its employees were entitled to qualified sovereign immunity as to simple negligence claims because the board was a municipal corporation for immunity purposes and its provision of mental health services was not a ministerial act of a proprietary nature but an exercise of the power delegated to it for the general benefit and well-being of the population it served. Peterson v. Commonwealth, 80 Va. Cir. 21, 2010 Va. Cir. LEXIS 7 (Danville Jan. 12, 2010), dismissed in part, 84 Va. Cir. 239, 2012 Va. Cir. LEXIS 129 (Montgomery County Jan. 25, 2012).

    Sovereign immunity for police commanding officers. —

    Police captain and the chief of police were immune under the doctrine of sovereign immunity to tort liability stemming from subordinate police officers’ alleged assault upon a citizen. Furthermore, neither the police captain, nor the chief of police was vicariously liable for the alleged misconduct of the subordinate officers. Pigott v. Ostulano, 74 Va. Cir. 228, 2007 Va. Cir. LEXIS 285 (Norfolk Oct. 3, 2007).

    Government functions. —

    A motorist’s claims of negligent design, construction, and signposting were barred under this section of the Tort Claims Act because they related to legislative government functions, to which the Commonwealth’s immunity attached, and immunity also attached to the motorist’s maintenance claim because it appeared to be a negligent design claim brought under the guise of maintenance. Vivian v. Honda Motor Co., 64 Va. Cir. 297, 2004 Va. Cir. LEXIS 73 (Fairfax County Mar. 31, 2004).

    Sovereign immunity found. —

    Commonwealth’s special plea of sovereign immunity was granted in the motorist’s personal injury action, arising from injuries the motorist sustained when a tree fell and struck his vehicle, because the Commonwealth, if a private person, would not be liable to the motorist, as a private landowner did not owe a duty to protect travelers on an adjoining public roadway from natural conditions on the landowner’s property. Zook v. City of Norfolk, 87 Va. Cir. 47, 2013 Va. Cir. LEXIS 153 (Norfolk July 19, 2013).

    Sovereign and charitable immunity found. —

    In an action filed against them by a patient and others, special pleas in bar of sovereign and charitable immunity were granted to defendant medical clinic, charity, and a doctor, as the charity’s employee, as: (1) the clinic, under both § 23-14 and its charter, it had the legal attributes of a municipal entity; and (2) the charity exhibited a charitable or eleemosynary function. Moore v. Maryview Med. Ctr., 71 Va. Cir. 442, 2005 Va. Cir. LEXIS 238 (Portsmouth Dec. 15, 2005).

    Governmental immunity not waived. —

    In a personal injury action by an injured arrestee against the city and a police officer, the Virginia Tort Claims Act, § 8.01-195.1 et seq., did not apply to, and sovereign immunity had not been waived for, the city or the police officer because under § 8.01-195.3 , the Virginia Tort Claims Act expressly preserved the sovereign immunity of cities and the individual immunity of municipal employees. Cunningham v. Rossman, 80 Va. Cir. 543, 2010 Va. Cir. LEXIS 74 (Danville July 12, 2010).

    Sufficiency of pleadings. —

    Visitor to a corrections facility sufficiently alleged tort claims against the Commonwealth of Virginia as to negligence, assault, and false imprisonment because the visitor alleged that corrections officers subjected the visitor to a coerced strip and visual body cavity search while visiting an inmate in which no contraband was found. However, the visitor failed to sufficiently allege a tort claim against the Commonwealth for intentional infliction of emotional distress. Calloway v. Commonwealth, 99 Va. Cir. 400, 2018 Va. Cir. LEXIS 317 (Augusta County Aug. 2, 2018).

    Punitive damages prohibited. —

    Administrator of the deceased’s estate could not recover punitive damages pursuant to § 8.01-195.3 .Ahari v. Fairfax County, 71 Va. Cir. 268, 2006 Va. Cir. LEXIS 141 (Fairfax County July 12, 2006).

    Gross negligence. —

    In a legal malpractice case arising from a patient’s murder in a hospital, this statute did not act as an absolute bar to litigation because sovereign immunity could have been overcome by allegations of gross negligence, and the question of whether gross negligence existed was for the finder of fact. Reasonable minds could have concluded that the failure to monitor the patients due to watching television constituted either ordinary or gross negligence. Wilkins v. Lattimer, 93 Va. Cir. 236, 2016 Va. Cir. LEXIS 58 (Alexandria May 2, 2016).

    OPINIONS OF THE ATTORNEY GENERAL

    Cause of action must accrue on or after July 1, 1982. —

    Because the Virginia Tort Claims Act does not provide relief for torts committed by agents of the Commonwealth that occurred prior to July 1, 1982, it is unlikely that a claimant could successfully bring an action against the Commonwealth for having been sterilized. See opinion of Attorney General to the Honorable Robert G. Marshall, Member, House of Delegates, and to the Honorable Patrick A. Hope, Member, House of Delegates, 13-015, 2013 Va. AG LEXIS 16 (3/15/13).

    Sovereign immunity. —

    Supreme Court likely would find VCU Health System Authority to be an arm of the Commonwealth and therefore entitled to absolute immunity. Even if the Court were not to agree, however, VCU Health System Authority also satisfies the criteria of a quasi-municipal corporation and therefore would be entitled to immunity for governmental functions. The Virginia Tort Claims Act exposes the Commonwealth, but not VCU Health System Authority, to limited liability for the negligent acts of its employees. See opinion of Attorney General to The Honorable James P. “Jimmie” Massie III, Member, Virginia House of Delegates, 17-005, 2017 Va. AG LEXIS 26 (12/7/17).

    § 8.01-195.4. Jurisdiction of claims under this article; right to jury trial; service on Commonwealth or locality; amending amount of claim.

    The general district courts shall have exclusive original jurisdiction to hear, determine, and render judgment on any claim against the Commonwealth or any transportation district cognizable under this article when the amount of the claim does not exceed $4,500, exclusive of interest and any attorney fees. Jurisdiction shall be concurrent with the circuit courts when the amount of the claim exceeds $4,500 but does not exceed $50,000, exclusive of interest and such attorney fees. Jurisdiction of claims when the amount exceeds $50,000 shall be limited to the circuit courts of the Commonwealth. The parties to any such action in the circuit courts shall be entitled to a trial by jury.

    While a matter is pending in a general district court or a circuit court, upon motion of the plaintiff seeking to increase or decrease the amount of the claim, the court shall order transfer of the matter to the general district court or circuit court that has jurisdiction over the amended amount of the claim without requiring that the case first be dismissed or that the plaintiff suffer a nonsuit, and the tolling of the applicable statutes of limitations governing the pending matter shall be unaffected by the transfer. Where such a matter is pending, if the plaintiff is seeking to increase or decrease the amount of the claim to an amount wherein the general district court and the circuit court would have concurrent jurisdiction, the court shall transfer the matter to either the general district court or the circuit court, as directed by the plaintiff, provided that such court otherwise has jurisdiction over the matter. Except for good cause shown, no such order of transfer shall issue unless the motion to amend and transfer is made at least 10 days before trial. The plaintiff shall pay filing and other fees as otherwise provided by law to the clerk of the court to which the case is transferred, and such clerk shall process the claim as if it were a new civil action. The plaintiff shall prepare and present the order of transfer to the transferring court for entry, after which time the case shall be removed from the pending docket of the transferring court and the order of transfer placed among its records. The plaintiff shall provide a certified copy of the transfer order to the receiving court.

    In all actions against the Commonwealth commenced pursuant to this article, the Commonwealth shall be a proper party defendant, and service of process shall be made on the Attorney General. The notice of claim shall be filed pursuant to § 8.01-195.6 on the Director of the Division of Risk Management or the Attorney General. In all such actions against a transportation district, the district shall be a proper party and service of process and notices shall be made on the chairman of the commission of the transportation district.

    History. 1981, c. 449; 1984, c. 698; 1986, c. 584; 1987, cc. 567, 674; 1989, cc. 121, 337; 1991, c. 23; 1992, cc. 111, 796; 2002, c. 645; 2005, c. 144; 2011, cc. 14, 702; 2019, c. 787; 2021, Sp. Sess. I, c. 199.

    Cross references.

    As to venue in actions under the Virginia Tort Claims Act, see now subdivision 18 of § 8.01-261 .

    Editor’s note.

    Acts 1986, c. 584, cl. 2, as amended by Acts 1988, c. 801, cl. 2, provided that the provisions of the 1986 act shall have no force and effect after July 1, 1990, unless reenacted by the General Assembly prior to such date. Since the General Assembly did not reenact the amendatory provisions of Acts 1986, c. 584, as amended, prior to July 1, 1990, the provisions expired.

    The 2002 amendments.

    The 2002 amendment by c. 645 substituted “$4,500” for “$1,000” twice in the first paragraph.

    The 2005 amendments.

    The 2005 amendment by c. 144 twice substituted “$15,000” for “$10,000” in the first paragraph.

    The 2011 amendments.

    The 2011 amendments by cc. 14 and 702 are identical, and twice substituted “$25,000” for “$15,000” in the first paragraph.

    The 2019 amendments.

    The 2019 amendment by c. 787 inserted the second paragraph.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 199, effective July 1, 2021, in the first paragraph, substituted “attorney fees” for “attorneys’ fees” twice and “$50.000” for “$25,000” twice.

    Law Review.

    For note on the abrogation of sovereign immunity in Virginia: The Virginia Tort Claims Act, see 7 G.M.U. L. Rev. 291 (1984).

    For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, see “Civil Practice and Procedure,” 26 U. Rich. L. Rev. 679 (1992).

    CASE NOTES

    Service on Commonwealth. —

    Court granted the Commonwealth’s motion to quash because plaintiff alleged service of process by mailing a copy of the Summons and Complaint to the Virginia Attorney General’s office by certified mail was deficient under Virginia law, and there was no indication (and the Commonwealth specifically rejected the possibility) that the Commonwealth waived its service of process. Fauber v. Va. Army Nat'l Guard, No. 5:08-cv-00068, 2009 U.S. Dist. LEXIS 31040 (W.D. Va. Apr. 9, 2009).

    CIRCUIT COURT OPINIONS

    Amount in controversy. —

    Res judicata did not bar buyers’ Virginia Consumer Protection Act claim regarding a $35,000 liquidated damages provision: the buyers could not have raised the claim in the prior seller’s prior unlawful detainer action because the general district court did not have jurisdiction over claims exceeding $15,000, pursuant to § 8.01-195.4 .Kearney v. Robinson Land Trust, 80 Va. Cir. 467, 2010 Va. Cir. LEXIS 162 (Charlottesville June 29, 2010).

    § 8.01-195.5. Settlement of certain cases.

    The Attorney General shall have authority in accordance with § 2.2-514 to compromise and settle claims against the Commonwealth cognizable under this article.

    The chairman of the commission for a transportation district against which a claim was filed pursuant to this article, or such other person as may be designated by the commission, shall have the authority to compromise, settle and discharge the claim provided (i) the proposed settlement and reasons therefor are submitted to the commission in writing and approved by its members or (ii) the settlement is made in accordance with a written policy approved by the transportation district commission for such settlements. The Director of the Division of Risk Management may adjust, compromise and settle claims against the Commonwealth cognizable under this article prior to the commencement of suit unless otherwise directed by the Attorney General.

    History. 1981, c. 449; 1986, c. 584; 1991, c. 23; 1992, c. 796.

    Editor’s note.

    Acts 1986, c. 584, cl. 2, as amended by Acts 1988, c. 801, cl. 2, provided that the provisions of the 1986 act shall have no force and effect after July 1, 1990, unless reenacted by the General Assembly prior to such date. Since the General Assembly did not reenact the amendatory provisions of Acts 1986, c. 584, as amended, prior to July 1, 1990, the provisions expired.

    § 8.01-195.6. Notice of claim.

    1. Every claim cognizable against the Commonwealth or a transportation district shall be forever barred unless the claimant or his agent, attorney or representative has filed a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred and the agency or agencies alleged to be liable, within one year after such cause of action accrued. Failure to provide such statement shall not bar a claim against the Commonwealth or a transportation district, provided that (i) for claims against the Commonwealth, the Division of Risk Management or any insurer or entity providing coverage or indemnification of the claim or the Attorney General or (ii) for claims against a transportation district, the chairman of the commission of the transportation district, had actual knowledge of the claim, which includes the nature of the claim, the time and place at which the injury is alleged to have occurred, and the agency or agencies alleged to be liable, within one year after such cause of action accrued. However, if the claimant was under a disability at the time the cause of action accrued, the tolling provisions of § 8.01-229 shall apply.
    2. If the claim is against the Commonwealth, the statement shall be filed with the Director of the Division of Risk Management or the Attorney General, except as otherwise provided herein. If the claim is against a transportation district, the statement shall be filed with the chairman of the commission of the transportation district. If the claim is against the Commonwealth and the agency alleged to be liable is the Department of Transportation, then notice of such claim shall be filed with the Commissioner of Highways. If notice of such claim is filed with the Commissioner of Highways and is outside of any settlement authority delegated to the Department of Transportation by the Attorney General, then the Commissioner of Highways shall promptly deliver the notice of such claim to the Attorney General.
    3. The notice is deemed filed when it is received in the office of the official to whom the notice is directed. The notice may be delivered by hand, by any form of United States mail service (including regular, certified, registered or overnight mail), or by commercial delivery service. If notice is to be filed with the Commissioner of Highways, it may also be delivered electronically in a manner prescribed by the Commissioner of Highways.
    4. In any action contesting the filing of the notice of claim, the burden of proof shall be on the claimant to establish receipt of the notice in conformity with this section. A signed United States mail return receipt indicating the date of delivery, or any other form of signed and dated acknowledgment of delivery given by authorized personnel in the office of the official with whom the statement is filed, shall be prima facie evidence of filing of the notice under this section.
    5. Claims against the Commonwealth involving medical malpractice shall be subject to the provisions of this article and to the provisions of Chapter 21.1 (§ 8.01-581.1 et seq.). However, the recovery in such a claim involving medical malpractice shall not exceed the limits imposed by § 8.01-195.3 .

    History. 1981, c. 449; 1984, cc. 638, 698; 1986, c. 584; 1991, c. 23; 1992, c. 796; 2002, c. 207; 2007, c. 368; 2016, cc. 760, 772.

    Editor’s note.

    Acts 1986, c. 584, cl. 2, as amended by Acts 1988, c. 801, cl. 2, provides that the provisions of the act shall have no force and effect after July 1, 1990, unless reenacted by the General Assembly prior to such date. Since the General Assembly did not reenact the provisions of the act prior to July 1, 1990, the provisions expired.

    The section is set out above to correct an error in the 2016 Cumulative Supplement. In subsection E, “of this title” was deleted following “Chapter 21.1 (§ 8.01-581.1 et seq.).”

    The 2002 amendments.

    The 2002 amendment by c. 207 rewrote the last sentence in the second paragraph, which formerly read: “The date on which the return receipt is signed by the Director, the Attorney General, or the chairman shall be prima facie evidence of the date of filing for purposes of compliance with this section.”

    The 2007 amendments.

    The 2007 amendment by c. 368, rewrote the section.

    The 2016 amendments.

    The 2016 amendment by c. 760, in subsection B, added the exception in the first sentence, and added the third and fourth sentences, and added the third sentence in subsection C.

    The 2016 amendment by c. 772, in subsection A, added the second sentence.

    Law Review.

    For note on the abrogation of sovereign immunity in Virginia: The Virginia Tort Claims Act, see 7 G.M.U. L. Rev. 291 (1984).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    CASE NOTES

    Purpose. —

    Where there was only one University of Virginia Medical Center in Charlottesville, an administrator’s notice of claim which identified that hospital, stated that the decedent was admitted to that hospital, and that while there a patient was injured by the alleged medical negligence of the employees of that hospital, these assertions reasonably identified the place at which the alleged wrongful death occurred to put the Commonwealth on notice of said claim; this section did not mandate that the administrator identify the floor or room within the hospital where the alleged injury occurred, as such degree of specificity was unnecessary to accomplish the purpose of the statute. Bates v. Commonwealth, 267 Va. 387 , 593 S.E.2d 250, 2004 Va. LEXIS 28 (2004).

    Requirements. —

    The plaintiff’s notice did not meet the statutory requirements because it did not specify the location of her injury with sufficient particularity. Halberstam v. Commonwealth, 251 Va. 248 , 467 S.E.2d 783, 1996 Va. LEXIS 28 (1996). But see Bates v. Commonwealth, 267 Va. 387 , 593 S.E.2d 250, 2004 Va. LEXIS 28 (2004).

    Supreme Court of Virginia holds that a notice of claim that does not explicitly include the agency or agencies alleged to be liable is insufficient under § 8.01-195.6 A, even where such information is easily inferred from the notice of claim. Phelan v. Commonwealth, 291 Va. 192 , 781 S.E.2d 567, 2016 Va. LEXIS 14 (2016).

    Individual’s claim was barred by sovereign immunity where she made no attempt to explicitly include the identity of the agency or agencies alleged to be liable in her notice of claim, and although the notice of claim led to the logical inference that the Department of Corrections was the agency that she was alleging to be responsible for her injuries, an inference did not meet the requirements of § 8.01-195.6 A. Phelan v. Commonwealth, 291 Va. 192 , 781 S.E.2d 567, 2016 Va. LEXIS 14 (2016).

    Certified mail exclusive method of giving notice. —

    Mailing a notice of claim by certified mail, return receipt requested, is the exclusive method of filing a notice of claim against the commonwealth under the Virginia Tort Claims Act and, accordingly, a plaintiff’s claim was untimely where the date on the return receipt was more than one year from the date of her injury even though the commonwealth may have had actual notice of the plaintiff’s claim and the plaintiff’s attorney had hand-delivered a copy of the claim to the appropriate agency within one year. Melanson v. Commonwealth, 261 Va. 178 , 539 S.E.2d 433, 2001 Va. LEXIS 14 (2001).

    Language of § 18.2-200.1 plainly means that a request for a return of money advanced on a construction project is sufficient notice if sent by certified mail, return receipt requested, without proof of actual receipt, unlike the notices required by the bad check law, former § 6.1-117, now codified at § 18.2-183 , Virginia Tort Claims Act, § 8.01-195.1 et seq., the Virginia Habitual Offenders Act, former § 46.2-355, repealed in 1999, and the Virginia Interstate Agreement on Detainers, art. III(b), found in § 53.1-210 . Holsapple v. Commonwealth, 266 Va. 593 , 587 S.E.2d 561, 2003 Va. LEXIS 96 (2003), cert. denied, 543 U.S. 826, 125 S. Ct. 164, 160 L. Ed. 2d 39, 2004 U.S. LEXIS 5746 (2004).

    Documentation regarding claim presentment. —

    In a claim against an officer based on sexual assault, an inmate did not have to present documentation regarding claim presentment at the pleading stage. Billups v. Carter, 268 Va. 701 , 604 S.E.2d 414, 2004 Va. LEXIS 139 (2004).

    Waiver of immunity. —

    This section, which requires a party with a claim against the Commonwealth of Virginia or one of its agencies to file a written statement describing the event and the agency or agencies alleged to be liable, is simply a notice requirement apprising the Attorney General or the Director of the Division of Risk Management of the essential facts of the claim, and its mention of state agencies was not a waiver of those agencies’ sovereign immunity. Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242 , 591 S.E.2d 76, 2004 Va. LEXIS 11 (2004).

    CIRCUIT COURT OPINIONS

    Applicability. —

    Students’ claims against the Commonwealth for the negligence of its employees did not fail, even though the students did not give a § 2.2-814 notice as § 2.2-814 was inapplicable since the Virginia Tort Claims Act, specifically § 8.01-195.6 contained its own notice provision. Long v. Commonwealth, 2007 Va. Cir. LEXIS 78 (Norfolk Apr. 13, 2007).

    Requirements. —

    Since the injured party’s wrongful death claim against the Commonwealth lacked specificity as to the location of the incident where it stated “University of Virginia Health Sciences Center,” it constituted invalid notice and the case had to be dismissed. Bates v. Commonwealth, 60 Va. Cir. 405, 2002 Va. Cir. LEXIS 410 (Charlottesville Dec. 3, 2002), rev'd, 267 Va. 387 , 593 S.E.2d 250, 2004 Va. LEXIS 28 (2004). But see Bates v. Commonwealth, 276 Va. 387 , 593 S.E.2d 250 (2004).

    Because the Tort Claims Act does not require notice of every count in a plaintiff’s action against the Commonwealth but merely requires notice of the nature of the action, a motorist’s notice to the Commonwealth of his accident and of his intention to bring, among other things, a negligent design claim concerning a county road did not restrict him to a negligent design claim and bar him from asserting other claims related to his accident where he then properly filed a statement of his negligence claim, encompassing negligent design, construction, maintenance, and/or signposting of the road, and he identified the specific time and place of the accident at issue, thereby giving the Commonwealth proper notice of the type of claim against it so it could investigate the incident, cure any dangerous conditions, and enter into settlement negotiations. Vivian v. Honda Motor Co., 64 Va. Cir. 297, 2004 Va. Cir. LEXIS 73 (Fairfax County Mar. 31, 2004).

    Student’s notice of claim against defendants was sufficient where the Commonwealth did not need to inspect premises, or erect warning signs, or locate potential witnesses who were at a particular location on a particular date; the student complained about promises made in school documents and by school officials, and the location of those documents and officials at the time of the alleged promises was irrelevant. Goff v. J. Sargeant Reynolds Cmty. College, 65 Va. Cir. 479, 2004 Va. Cir. LEXIS 281 (Richmond Sept. 20, 2004).

    Notice adequate. —

    Notice of claim provided by a non-inmate plaintiff, who sued the Commonwealth under the Virginia Tort Claims Act to recover damages for injuries she sustained in a slip and fall accident on a wet floor at a state prison, satisfied the requirements of § 8.01-195.6 because the notice received by attorney general identified the specific prison facility where the slip and fall accident occurred and provided sufficient facts to place the Commonwealth in an adequate position to investigate and evaluate the claim. Jones v. Commonwealth, 72 Va. Cir. 590, 2004 Va. Cir. LEXIS 387 (Wise County June 11, 2004).

    Notice inadequate. —

    Commonwealth’s plea in bar was granted because the administrator had not adequately complied with the notice requirements of § 8.01-195.6 when the administrator’s first notice was not mailed by certified mail and did not include the agency or agencies that the administrator alleged were liable. The second notice was again deficient for failing to name the agency allegedly liable, and no additional notices of claim were mailed in a timely manner. Ahari v. Fairfax County, 71 Va. Cir. 268, 2006 Va. Cir. LEXIS 141 (Fairfax County July 12, 2006).

    Inmate’s claim under the Virginia Tort Claims Act, § 8.01-195.1 et seq., was forever barred because the inmate’s postage prepaid mailing of the required notice of claim failed to comply with the requirement under § 8.01-195.6 , for the mailing of the notice of claim via the United States Postal Service by certified mail, return receipt requested. Spears v. Fairfax County Sheriff's Dep't, 2007 Va. Cir. LEXIS 95 (Fairfax County June 19, 2007).

    Although the Department of Conservation and Recreation received actual notice of a claim for personal injuries made by a state park visitor, the visitor’s action for personal injuries failed because the notice of claim sent by the visitor did not strictly comply with the requirement that the liable agency be named within the notice. Truelove v. Commonwealth, 85 Va. Cir. 282, 2012 Va. Cir. LEXIS 190 (Surry County Aug. 29, 2012).

    OPINIONS OF THE ATTORNEY GENERAL

    Cause of action must accrue on or after July 1, 1982. —

    Because the Virginia Tort Claims Act does not provide relief for torts committed by agents of the Commonwealth that occurred prior to July 1, 1982, it is unlikely that a claimant could successfully bring an action against the Commonwealth for having been sterilized. See opinion of Attorney General to the Honorable Robert G. Marshall, Member, House of Delegates, and to the Honorable Patrick A. Hope, Member, House of Delegates, 13-015, 2013 Va. AG LEXIS 16 (3/15/13).

    § 8.01-195.7. Statute of limitations.

    Every claim cognizable against the Commonwealth or a transportation district under this article shall be forever barred, unless within one year after the cause of action accrues to the claimant the notice of claim required by § 8.01-195.6 is properly filed. An action may be commenced pursuant to § 8.01-195.4 (i) upon denial of the claim by the Attorney General or the Director of the Division of Risk Management or, in the case of a transportation district, by the chairman of the commission of that district or (ii) after the expiration of six months from the date of filing the notice of claim unless, within that period, the claim has been compromised and discharged pursuant to § 8.01-195.5 . All claims against the Commonwealth or a transportation district under this article shall be forever barred unless such action is commenced within 18 months of the filing of the notice of claim, or within two years after the cause of action accrues.

    The limitations periods prescribed by this section and § 8.01-195.6 shall be subject to the tolling provision of § 8.01-229 and the pleading provision of § 8.01-235 . Additionally, claims involving medical malpractice in which the notice required by this section and § 8.01-195.6 has been given shall be subject to the provisions of § 8.01-581.9 . Notwithstanding the provisions of this section, if notice of claim against the Commonwealth was filed prior to July 1, 1984, any claimant so filing shall have two years from the date such notice was filed within which to commence an action pursuant to § 8.01-195.4 .

    History. 1981, c. 449; 1984, cc. 638, 698; 1985, c. 514; 1986, c. 584; 1988, cc. 778, 801; 1992, c. 796; 2016, c. 772.

    Editor’s note.

    Acts 1986, c. 584, which amended this section, as amended by Acts 1988, c. 801, purported to provide for expiration of the provisions of the 1986 act on July 1, 1990. However, in light of the amendment and reenactment of this section by Acts 1988, cc. 778, 801, at the direction of the Code Commission, the expiration provisions of Acts 1986, c. 584, as amended in 1988, have been given no further effect.

    Section 8.01-581.9 , which is referred to in the second sentence of the second paragraph, was repealed by Acts 1993, c. 928.

    The 2016 amendments.

    The 2016 amendment by c. 772 substituted “18” for “eighteen” and inserted “or within two years after the cause of action accrues” at the end of the first paragraph.

    Law Review.

    For article, “Civil Rights and ‘Personal Injuries’: Virginia’s Statute of Limitations for Section 1983 Suits,” see 26 Wm. & Mary L. Rev. 199 (1985).

    CASE NOTES

    Applicability to inmate’s tort action. —

    Inmate’s negligence action against the Commonwealth of Virginia was not time-barred by the inmate statute, § 8.01-243.2 ; instead, § 8.01-195.7 , the statute of limitations of the Virginia Tort Claims Act, §§ 8.01-195.1 to 8.01-195.9 , controlled the action even if it related to conditions of confinement because it was a tort claim against the Commonwealth. Ogunde v. Commonwealth, 271 Va. 639 , 628 S.E.2d 370, 2006 Va. LEXIS 45 (2006).

    CIRCUIT COURT OPINIONS

    Personal injury action dismissed. —

    Since the victim did not commence a personal injury action against the Commonwealth within the required time and also failed to prove incapacity, the statute of limitations was not tolled; thus the victim’s action was barred and dismissed. Sisk v. Commonwealth, 56 Va. Cir. 230, 2001 Va. Cir. LEXIS 452 (Charlottesville June 15, 2001).

    Action not timely filed. —

    Inmate’s claim, which arose under the Virginia Tort Claims Act, was barred by the limitations period of § 8.01-195.7 because the inmate had filed his motion for judgment approximately 21 months after his notice of claim; while the inmate was under a “disability” during his incarceration pursuant to subdivision 6 a of § 8.01-2 , he was not “incapacitated” under § 8.01-229 A 1, and accordingly, the time period was not tolled. Hankins v. Commonwealth, 63 Va. Cir. 211, 2003 Va. Cir. LEXIS 168 (Lynchburg Oct. 6, 2003).

    In a medical malpractice case, the Commonwealth’s plea of the statute of limitations was granted, as the pleadings, originally naming an agency, were not amended to name the Commonwealth as defendant until nearly four years after the statute of limitations of § 8.01-195.7 of the Virginia Tort Claims Act expired. Carter v. Commonwealth, 67 Va. Cir. 308, 2005 Va. Cir. LEXIS 164 (Charlottesville Apr. 28, 2005).

    Decedent, by waiting approximately forty-three months after his statutory notice before attempting to join the Commonwealth as a party to his lawsuit for injuries, allowed the statute of limitations of § 8.01-195.7 to run. The decedent, recognizing that the Virginia Department of Transportation (VDOT) was the wrong party, made his motion to amend in order to change the name of the defendant from VDOT to the Commonwealth of Virginia, but even if the court accepted that motion as a request to add a party defendant, the statute of limitations for claims against the Commonwealth had already run. Hobson v. Francisco, 67 Va. Cir. 297, 2005 Va. Cir. LEXIS 161 (Roanoke County Apr. 26, 2005).

    In a tort case brought by a pro se inmate, his claims against a correctional facility doctor were time-barred since, if the doctor was cloaked with sovereign immunity, then the Virginia Tort Claims Act controlled and the inmate’s motion for judgment was untimely. On the other hand, if the doctor was not cloaked with sovereign immunity, then the Virginia Tort Claims Act did not apply; in that instance, the inmate’s claim was barred by § 8.01-243.2 if the action related to the conditions of his confinement, or by subsection A of § 8.01-243 if it did not. Gillikin v. Dep't of Corr., 77 Va. Cir. 374, 2009 Va. Cir. LEXIS 111 (Brunswick County Jan. 30, 2009).

    In a pro se state inmate case brought pursuant to the Virginia Tort Claims Act, his motion for judgment against the Virginia Department of Corrections was untimely. Since he filed his claim on April 30, 2007, with the Division of Risk Management, he had to file his motion for judgment on or before October 30, 2008; however, he did not file his motion until November 20, 2008. Gillikin v. Dep't of Corr., 77 Va. Cir. 374, 2009 Va. Cir. LEXIS 111 (Brunswick County Jan. 30, 2009).

    § 8.01-195.8. Release of further claims.

    Notwithstanding any provision of this article, the liability for any claim or judgment cognizable under this article shall be conditioned upon the execution by the claimant of a release of all claims against the Commonwealth, its political subdivisions, agencies, and instrumentalities or against the transportation district, and against any officer or employee of the Commonwealth or the transportation district in connection with, or arising out of, the occurrence complained of.

    History. 1981, c. 449; 1986, c. 584; 1991, c. 23.

    Editor’s note.

    Acts 1986, c. 584, cl. 2, as amended by Acts 1988, c. 801, cl. 2, provided that the provisions of the 1986 act shall have no force and effect after July 1, 1990, unless reenacted by the General Assembly prior to such date. Since the General Assembly did not reenact the amendatory provisions of Acts 1986, c. 584, as amended, prior to July 1, 1990, the provisions expired.

    § 8.01-195.9. Claims evaluation program.

    The Division of Risk Management of the Department of the Treasury and the Attorney General shall develop cooperatively an actuarially sound program for identifying, evaluating and setting reserves for the payment of claims cognizable under this article.

    History. 1988, c. 644; 2000, cc. 618, 632.

    The 2000 amendments.

    The 2000 amendments by cc. 618 and 632 are identical, and substituted “the Treasury” for “General Services.”

    Article 18.2. Compensation for Wrongful Incarceration for a Felony Conviction.

    § 8.01-195.10. Purpose; action by the General Assembly required; definitions.

    1. The purpose of this article is to provide directions and guidelines for the compensation of persons who have been wrongfully incarcerated in the Commonwealth. Compensation for wrongful incarceration is governed by Article IV, Section 14 of the Constitution of Virginia, which prohibits the General Assembly from granting relief in cases in which the courts or other tribunals may have jurisdiction and any individual seeking payment of state funds for wrongful incarceration shall be deemed to have waived all other claims. The payment and receipt of any compensation for wrongful incarceration shall be contingent upon the General Assembly appropriating funds for that purpose. This article shall not provide an entitlement to compensation for persons wrongfully incarcerated or require the General Assembly to appropriate funds for the payment of such compensation. No estate of or personal representative for a decedent shall be entitled to seek a claim for compensation for wrongful incarceration.
    2. As used in this article:“Incarceration” or “incarcerated” means confinement in a local or regional correctional facility, juvenile correctional center, state correctional facility, residential detention center, or facility operated pursuant to the Corrections Private Management Act (§ 53.1-261 et seq.).“Wrongful incarceration” or “wrongfully incarcerated” means incarceration for a felony conviction for which (i) the conviction has been vacated pursuant to Chapter 19.2 (§ 19.2-327.2 et seq.) or 19.3 (§ 19.2-327.10 et seq.) of Title 19.2, or the person incarcerated has been granted an absolute pardon for the commission of a crime that he did not commit; (ii) the person incarcerated shall have entered a final plea of not guilty, or, regardless of the plea, the person incarcerated was convicted of a Class 1 felony, a Class 2 felony, or any felony for which the maximum penalty is imprisonment for life; and (iii) the person incarcerated did not by any act or omission on his part intentionally contribute to his conviction for the felony for which he was incarcerated.

    History. 2004, cc. 818, 840; 2010, cc. 496, 557; 2021, Sp. Sess. I, cc. 344, 345.

    Editor’s note.

    Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: “That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 (§ 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia.”

    Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: “That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law.”

    Acts 2021, Sp. Sess. I, cc. 344 and 345, cls. 5 provide: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice.”

    The 2010 amendments.

    The 2010 amendment by c. 496, in subsection B, substituted “or 19.3 (§ 19.2-327.10 et seq.) of Title 19.2, or the person incarcerated has been granted an absolute pardon for the commission of a crime that he did not commit” for “of Title 19.2” in the definition of “Wrongful incarceration.”

    The 2010 amendment by c. 557, in subsection B, inserted “or the person incarcerated has been granted an absolute pardon for the commission of a crime that he did not commit” in the definition of “Wrongful incarceration.”

    The 2021 Sp. Sess. I amendments.

    The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted “shall” for “must” and “the person incarcerated was” for “any person sentenced to death, or” in clause (ii) in the definition of “Wrongful incarceration” in subsection B.

    § 8.01-195.11. Compensation for wrongful incarceration.

    1. Any person who is convicted of a felony by a county or city circuit court of the Commonwealth and is wrongfully incarcerated for such felony may be awarded compensation in an amount equal to 90 percent of the inflation adjusted Virginia per capita personal income as reported by the Bureau of Economic Analysis of the U.S. Department of Commerce for each year of incarceration, or portion thereof.
    2. Any compensation computed pursuant to subsection A and approved by the General Assembly shall be paid by the Comptroller by his warrant on the State Treasurer in favor of the person found to have been wrongfully incarcerated. The person wrongfully incarcerated shall be paid an initial lump sum equal to 20 percent of the compensation award with the remaining 80 percent of the principal of the compensation award to be used by the State Treasurer to purchase an annuity from any A+ rated company, including any A+ rated company from which the Virginia Lottery may purchase an annuity, to provide equal monthly payments to such person for a period certain of 25 years commencing no later than one year after the effective date of the appropriation; however, if such person’s life expectancy, as calculated pursuant to the provisions of § 8.01-419 based on his age on the effective date of the appropriation, is less than 25 years, then, upon his election, the annuity period shall be equal to his life expectancy. The annuity shall provide that it shall not be sold, discounted, or used as securitization for loans and mortgages by the person awarded compensation. The annuity shall, however, contain beneficiary provisions providing for the annuity’s continued disbursement in the event of the death of the person awarded compensation. All payments or costs of annuities under this section shall be made by check issued by the State Treasurer on warrant of the Comptroller.Notwithstanding the foregoing, in the event that the person wrongfully incarcerated is 60 years of age or older or is terminally ill, the General Assembly may (i) pay 100 percent of the compensation computed pursuant to subsection A as a lump sum to the person wrongfully incarcerated or (ii) purchase an annuity for a period certain that is less than 25 years. For the purposes of this section, “terminally ill” means that the individual has a medical prognosis, as certified by a licensed physician, that his life expectancy is five years or less if the illness runs its normal course.
    3. Any person who is convicted of a felony by a county or city circuit court of the Commonwealth and is wrongfully incarcerated for such felony shall receive a transition assistance grant of $15,000 to be paid from the Criminal Fund, which amount shall be deducted from any award received pursuant to subsection B, within 30 days of receipt of the written request for the disbursement of the transition assistance grant to the Executive Secretary of the Supreme Court of Virginia. Payment of the transition assistance grant from the Criminal Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Executive Secretary of the Supreme Court of Virginia. In addition, such person shall be entitled to receive reimbursement up to $10,000 for tuition for career and technical training within the Virginia Community College System contingent upon successful completion of the training. Reimbursement for tuition shall be provided by the comprehensive community college at which the career or technical training was completed.

    History. 2004, cc. 818, 840; 2010, c. 557; 2012, c. 675; 2014, c. 225; 2018, c. 302; 2020, cc. 326, 648.

    Editor’s note.

    At the direction of the Virginia Code Commission, the following changes were made to conform to Acts 2016, c. 588: substituted “U.S. Department of Commerce” for “United States Department of Commerce” in subsection A; and inserted “comprehensive” preceding “community college at which” in subsection C.

    Acts 2020, c. 648, cl. 2 provides: “That nothing in this act shall be construed to require modification of or otherwise affect an annuity issued pursuant to the provisions of Article 18.2 (§ 8.01-195.10 et seq.) of Chapter 3 of Title 8.01 of the Code of Virginia prior to July 1, 2020.”

    Acts 2020, Sp. Sess. I, cc. 50 and 52, cl. 4 provides: “That the provisions of § 53.1-202.3 of the Code of Virginia, as amended by this act, shall apply retroactively to the entire sentence of any person who is confined in a state correctional facility and participating in the earned sentence credit system on July 1, 2022. If it is determined that, upon retroactive application of the provisions of § 53.1-202.3 of the Code of Virginia, as amended by this act, the release date of any such person passed prior to the effective date of this act [July 1, 2022], the person shall be released upon approval of an appropriate release plan and within 60 days of such determination unless otherwise mandated by court order; however, no person shall have a claim for wrongful incarceration pursuant to § 8.01-195.11 of the Code of Virginia on the basis of such retroactive application. If a person is released prior to completion of any reentry programs deemed necessary by the Department of Corrections on the person’s most recent annual review or prior to completion of any programs mandated by court order, the person shall be required to complete such programs under probation, provided probation is mandated by the court and current community resources are sufficient to facilitate completion of the aforementioned programs.”

    The 2010 amendments.

    The 2010 amendment by c. 557 inserted “inflation adjusted” in subsection A.

    The 2012 amendments.

    The 2012 amendment by c. 675 substituted “for each year of incarceration, or portion thereof” for “for each year, or portion thereof, of incarceration up to 20 years” at the end of subsection A.

    The 2014 amendments.

    The 2014 amendment by c. 225, substituted “Virginia Lottery” for “State Lottery Department” in subsection B.

    The 2018 amendments.

    The 2018 amendment by c. 302, in subsection C, inserted “within 30 days of receipt of the written request for the disbursement of the transition assistance grant to the Executive Secretary of the Supreme Court of Virginia” in the first sentence, added the second sentence; and made stylistic changes.

    The 2020 amendments.

    The 2020 amendment by c. 326 added the last paragraph of subsection B.

    The 2020 amendment by c. 648 added “however, if such person’s life expectancy, as calculated pursuant to the provisions of § 8.01-419 based on hi s age on the effective date of the appropriation, is less than 25 years, then, upon his election, the annuity period shall be equal to his life expectancy” to the second sentence in subsection B.

    § 8.01-195.12. Conditions for continued compensation.

    1. Any person awarded compensation under this article who is subsequently convicted of a felony shall, immediately upon such conviction, not be eligible to receive any unpaid amounts from any compensation awarded and his beneficiaries shall not be eligible to receive any payments under an annuity purchased pursuant to subsection B of § 8.01-195.11 . Any unpaid amounts remaining under any annuity shall become the property of the Commonwealth and shall be deposited into the general fund of the state treasury.
    2. As a condition of receiving any compensation under this article, a person shall execute a release and waiver forever releasing (i) the Commonwealth or any agency, instrumentality, officer, employee, or political subdivision thereof, (ii) any legal counsel appointed pursuant to § 19.2-159 , and (iii) all other parties of interest, from any present or future claims the person receiving compensation may have against such enumerated parties and arising out of the factual situation in connection with the conviction for which compensation is being sought under this article. In addition, the person receiving compensation shall not have been awarded a finally adjudicated judgment in a court of law against or received any funds pursuant to a settlement agreement with any person or entity described in this subsection for compensation or damages arising out of the factual situation in connection with the conviction.

    A1. Any person awarded compensation under this article who is subsequently incarcerated upon the revocation of parole or probation resulting from the commission of an act that constitutes a crime shall, during the period of such incarceration, forfeit any payments under an annuity purchased pursuant to subsection B of § 8.01-195.11 . Any forfeited amounts under any annuity shall become the property of the Commonwealth and shall be deposited into the general fund of the state treasury.

    History. 2004, cc. 818, 840; 2010, c. 557.

    Editor’s note.

    Acts 2018, cc. 502 and 503 enacted § 8.01-195.13 , and in cl. 7 provided: “That the provisions of § 8.01-195.12 of the Code of Virginia shall apply to any compensation awarded under this act.”

    Acts 2020, c. 326, cl. 3 provides: “That the provisions of § 8.01-195.12 of the Code of Virginia shall apply to any compensation awarded under this act.”

    The 2010 amendments.

    The 2010 amendment by c. 557 added subsection A1.

    § 8.01-195.13. Compensation for certain intentional acts.

    1. In any matter resulting in compensation for wrongful incarceration pursuant to this article, if a court of competent jurisdiction over the matter determines, or the court record clearly demonstrates, that the Commonwealth or any agency, instrumentality, officer or employee, or political subdivision thereof (i) intentionally and wrongfully fabricated evidence that was used to obtain the wrongful conviction in such manner and (ii) intentionally, willfully, and continuously suppressed or withheld evidence establishing the innocence of the person wrongfully incarcerated, including but not limited to suppression or withholding of evidence to the Governor for the purpose of clemency, the Commonwealth may compensate the person wrongfully incarcerated for such intentional acts. Such amount shall be in addition to any compensation awarded pursuant to § 8.01-195.11 and may be up to or equal to the amount of such compensation. The additional compensation shall be added to any amount awarded pursuant to § 8.01-195.11 , and the total compensation shall be paid pursuant to subdivision B of § 8.01-195.11. Nothing provided in this section shall be interpreted to supplant, revoke, or supersede any other provision of this article applicable to the award of compensation for wrongful incarceration, and the additional compensation shall be subject to any conditions set forth in this article.
    2. Any compensation awarded pursuant to this article that includes the additional compensation for intentional acts as set forth in subsection A shall not become effective and payable by the Commonwealth unless and until (i) the person wrongfully incarcerated executes the release and waiver pursuant to subsection B of § 8.01-195.12 and (ii) the instrumentality, or political subdivision thereof, employing any individual committing the intentional acts set forth in clauses (i) and (ii) of subsection A enters into an agreement with the person wrongfully incarcerated requiring such instrumentality or political subdivision to compensate the person with a sum at least equal to the total compensation provided pursuant to § 8.01-195.11 and this section.

    History. 2018, cc. 502, 503.

    Editor’s note.

    Acts 2018, cc. 502 and 503, cl. 7 provides: “That the provisions of § 8.01-195.12 of the Code of Virginia shall apply to any compensation awarded under this act.”

    Article 19. Actions by the Commonwealth.

    § 8.01-196. Comptroller to institute proceedings.

    The Comptroller shall institute and prosecute all proceedings proper to enforce payment of money to the Commonwealth.

    History. Code 1950, § 8-758; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 5B M.J. Criminal Procedure, § 104.

    CASE NOTES

    Collection of money payable under former § 15.1-73. —

    The Comptroller was granted exclusive authority under § 8-761 (see now § 8.01-198 ) to institute proceedings to collect money payable under former § 15.1-73 which prohibited city and town officials from having an interest in contracts with or claims against the city or town. Commonwealth v. Holland, 211 Va. 530 , 178 S.E.2d 506, 1971 Va. LEXIS 208 (1971) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Standing. —

    Plain language of the Virginia Debt Collection Act and §§ 8.01-196 and 8.01-198 demonstrated that the comptroller lacked standing in this action; the comptroller instituted proceedings to recover damages on an unliquidated claim, and there had been neither a determination of liability nor the damages amount chargeable to defendants, if found liable. Commonwealth ex rel. Von Moll v. HKS, Inc., 103 Va. Cir. 1, 2019 Va. Cir. LEXIS 442 (Richmond Apr. 23, 2019).

    § 8.01-197. In what name; when not to abate.

    Any such action shall be in the name of the Commonwealth of Virginia except when it is on a bond payable to, or a contract made with, the Governor or some other person. And then it may be in the name of such Governor or other person for the use of the Commonwealth, notwithstanding such Governor or other person may have died, resigned, or been removed from office before the commencement of the action. And there shall be no abatement thereof, by reason of the death, resignation, or removal from office of any such plaintiff pending the action.

    History. Code 1950, § 8-760; 1977, c. 617.

    Cross references.

    For rule of court on substitution of parties, see Rule 3:17.

    § 8.01-198. Action, against whom instituted.

    Any such action may be instituted against any person indebted or liable to the Commonwealth in any way whatever, and against his sureties, and against his and their personal representatives. And it may be made when the debt or liability is created or secured by a bond or other instrument, whether the same be payable to the Commonwealth or to any person acting in a public character on behalf of the Commonwealth, or be for the payment of money or the performance of other duties. Every judgment on any such motion shall be in the name of the Commonwealth.

    History. Code 1950, § 8-761; 1954, c. 550; 1977, c. 617.

    Cross references.

    For rules of court relating to complaints and defendants answers, etc., see Rules 3:2 through 3:8.

    CASE NOTES

    Collection of money payable under former § 15.1-73. —

    The Comptroller was granted exclusive authority under § 8-758 (see now § 8.01-196 ) and § 8-761 (now this section) to institute proceedings to collect money payable under former § 15.1-73 which prohibited city and town officials from having an interest in contracts with or claims against the city or town. Commonwealth v. Holland, 211 Va. 530 , 178 S.E.2d 506, 1971 Va. LEXIS 208 (1971) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Standing. —

    Plain language of the Virginia Debt Collection Act and §§ 8.01-196 and 8.01-198 demonstrated that the comptroller lacked standing in this action; the comptroller instituted proceedings to recover damages on an unliquidated claim, and there had been neither a determination of liability nor the damages amount chargeable to defendants, if found liable. Commonwealth ex rel. Von Moll v. HKS, Inc., 103 Va. Cir. 1, 2019 Va. Cir. LEXIS 442 (Richmond Apr. 23, 2019).

    § 8.01-199. Judgment, nature of.

    On any such motion, the judgment shall be for so much principal and interest as would be recoverable by action. It may be also for fifteen per centum damages in addition thereto when the proceeding is against a treasurer, sheriff, or other collector, or his sureties, or his or their personal representatives, for taxes or other public money which ought to have been paid into the state treasury. In such proceeding, the court, in pronouncing judgment, may consider all the circumstances, and give judgment for the damages or not, or for such part of the damages, as it may deem proper.

    History. Code 1950, § 8-762; 1977, c. 617.

    § 8.01-200. Mistakes against State corrected.

    After a debt to the Commonwealth shall have been paid, if it appear that an error or mistake has been committed to its prejudice, whether before or after the issuing of execution, a motion may be made on ten days’ notice against any person liable for the debt, for the amount of such error or mistake, and judgment may be given therefor, without interest or damages thereon.

    History. Code 1950, § 8-763; 1977, c. 617.

    § 8.01-201. Execution; real estate to be sold.

    In a writ of fieri facias upon a judgment or decree against any person indebted or liable to the Commonwealth, or against any surety of his, after the words “we command you that of the,” the clerk shall insert the words “goods, chattels, and real estate,” and conform the subsequent part of such writ thereto. And under any writ so issued, real estate may be taken and sold.

    History. Code 1950, § 8-764; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 5B M.J. Criminal Procedure, § 96.

    § 8.01-202. Execution, to whom issued.

    An execution on behalf of the Commonwealth from the Circuit Court of the City of Richmond may, if the Comptroller see fit, be directed to any sheriff, of any political subdivision, and shall be served by any of such officers in whose hands the Comptroller may cause it to be placed.

    History. Code 1950, § 8-765; 1977, c. 617.

    § 8.01-203. Goods and chattels liable before real estate.

    Every writ of fieri facias, issued according to § 8.01-201 , shall be levied first on the goods and chattels of the person against whose estate such writ issued. If, in the political subdivision, the residence of such person, there are no goods and chattels liable thereto, or not a sufficiency thereof, then the officer having such writ shall levy it on the real estate of such person.

    History. Code 1950, § 8-766; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 5B M.J. Criminal Procedure, § 96.

    CASE NOTES

    Lack of notice. —

    Although lack of notice is not a prerequisite to the operation of former § 8.9-312 [see now § 8.9A-322 ], this section provides that “every contract or duty within this act imposes an obligation of good faith in its performance or enforcement.” Accordingly, allegations and proof of a leading on, bad faith or inequitable conduct on the part of a secured party may affect the priorities established under former § 8.9-312 [see now § 8.9A-322 ] by estopping the assertion of a priority. Grossmann v. Saunders, 237 Va. 113 , 376 S.E.2d 66, 5 Va. Law Rep. 1471, 1989 Va. LEXIS 23 (1989).

    § 8.01-204. Notice of sale of real estate; when sale to be made.

    When a levy is so made upon real estate, the officer making it shall post notice thereof, and of the time and place of sale, at such public places as may seem to him expedient, and at the front door of the courthouse of the political subdivision in which the real estate is, on a court day. The time of selling real estate shall be not less than sixty nor more than ninety days from the time of posting the notice at the courthouse door. And the sale shall take place at the premises or at the door of the courthouse, as the officer may deem most advisable.

    History. Code 1950, § 8-767; 1977, c. 617.

    § 8.01-205. How sale made.

    If the amount of the execution be not sooner paid, such officer shall proceed, on the day mentioned in the notice, to sell at public auction the interest of the party against whom the execution issued in the real estate or so much thereof as the officer may deem sufficient; and if a part only be sold it shall be laid off in one parcel in such place and manner as the debtor or his agent may direct or, if he give no direction, as the officer may deem best.

    History. Code 1950, § 8-768; 1977, c. 617.

    § 8.01-206. Terms of sale.

    The sale shall be upon six months’ credit; and if the land be not purchased for the Commonwealth, the officer shall take bond of the purchaser, with sureties, for the payment of the purchase money to the Commonwealth. Every such bond shall mention on what occasion the same was taken, and be returned to the office of the court from which the execution issued, and the clerk shall endorse thereon the date of its return.

    History. Code 1950, § 8-769; 1977, c. 617.

    Cross references.

    As to effect of bonds given under this section, see §§ 8.01-209 , 8.01-210 .

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 112.

    § 8.01-207. Who to collect purchase money and make deed; disposition of proceeds of sale.

    On or before the maturity of such bond the sheriff or other officer who made the sale shall withdraw the bond from the clerk’s office, leaving his receipt therefor and an attested copy thereof, and collect the same. So soon as the purchase money has been paid, the sheriff or other principal officer, or the deputy who acted in making the sale, shall, as commissioner, and in the name of the Commonwealth, convey the land to the purchaser by deed executed at his costs, reciting the execution, the sale and the price of the land. Such deed shall pass to the purchaser all the interest which the party against whom the execution issued had in the land at the date of the judgment or decree. Out of the money so collected the sheriff or officer who made the sale shall pay all costs attending such execution and sale, the costs of a survey, if there was one, all delinquent and unpaid taxes and levies on such land and the debt due the Commonwealth, and the residue, if any, he shall pay to the judgment debtor.

    History. Code 1950, § 8-770; 1977, c. 617.

    § 8.01-208. When successor of officer to make deed.

    When the officer and his deputy who acted in making the sale have both died or removed from the Commonwealth before making such deed, the same may be executed by any successor of such officer.

    History. Code 1950, § 8-771; 1977, c. 617.

    § 8.01-209. Bond for purchase money to have force of judgment.

    When any bond taken under § 8.01-206 becomes payable and is returned to the office of the court from which the execution issued, it shall have the force of a judgment against such of the obligors therein as may be then alive. Execution may be issued thereon against them. And the same shall be proceeded under in like manner as an execution issued on such a judgment or decree as is mentioned in § 8.01-201 , save only that the clerk shall endorse “no security is to be taken,” and the officer shall govern himself accordingly and sell for ready money any real estate which he may levy on under the same.

    History. Code 1950, § 8-772; 1977, c. 617.

    § 8.01-210. Judgment against deceased obligors.

    A judgment may be obtained against the survivors of a deceased obligor of a bond taken under the provisions of § 8.01-206 by an action at law against the personal representative of such obligor.

    History. Code 1950, § 8-773; 1954, c. 550; 1977, c. 617.

    § 8.01-211. When venditioni exponas issued to sheriff of adjacent county; what to contain.

    When return is made on any execution on behalf of the Commonwealth that goods, chattels or real estate remain unsold for want of bidders, or to that effect, the clerk of the court from which such execution issued shall, when required by the Comptroller, issue a writ of venditioni exponas, directed to the sheriff of any county adjacent to that in which the levy was made that the Comptroller may designate. Such writ shall recite the execution under which the levy was made, the nature of such levy and return that the property remains unsold for the want of bidders and shall command the sheriff of such adjacent county, if the property remaining unsold be goods or chattels, to go into the county in which the levy was made and receive the same from the officer that made the levy and, whether the property be goods, chattels, or real estate, to sell the same.

    History. Code 1950, § 8-774; 1977, c. 617.

    CASE NOTES

    Liability of purchaser who gets no land. —

    Where a sale was made of judgment debtor’s interest in land under writ of venditioni exponas in behalf of the Commonwealth, which interest was absorbed by liens paramount to the writ, the purchaser must pay the price though he may get no land. Spotts v. Commonwealth, 85 Va. 531 , 8 S.E. 375 , 1888 Va. LEXIS 68 (1888) (decided under prior law).

    § 8.01-212. Officer to deliver to sheriff goods and chattels levied on.

    The officer who made the levy shall deliver the goods and chattels to the sheriff to whom such writ of venditioni exponas may be directed, upon such sheriff’s producing to him such writ and executing a receipt for such goods and chattels. If the officer shall fail to deliver the same and return be made on such writ to that effect, the court from which it issued, upon motion, may give judgment against him and his sureties for the whole sum that the execution amounted to at the time of such failure, with interest thereon from that time.

    History. Code 1950, § 8-775; 1977, c. 617.

    § 8.01-213. Where same to be sold.

    The sheriff to whom such writ of venditioni exponas is directed, shall sell the goods and chattels in the county where received, if they can be sold therein, and if not he shall cause them to be removed to the courthouse of his own county and there sold. The removal shall be at the costs of the party against whom the execution issued, and the sale under the execution shall be to raise the cost of removal, in addition to the amount which it would otherwise have been necessary to raise.

    History. Code 1950, § 8-776; 1977, c. 617.

    § 8.01-214. Where real estate to be sold.

    Such sheriff shall also sell the real estate levied on in the county wherein the levy was made, if it can be done, and if it cannot he shall make the sale at the courthouse of his own county.

    History. Code 1950, § 8-777; 1977, c. 617.

    § 8.01-215. Return of officer when sale not made because of prior encumbrance.

    In any case in which an officer, having an execution on behalf of the Commonwealth, shall decline levying it because of any previous conveyance, execution, or encumbrance, a return shall be made setting forth the nature of such conveyance, execution or encumbrance, in whose favor, and for what amount, and the court in which the conveyance or encumbrance is recorded, or from which the execution issued.

    History. Code 1950, § 8-778; 1977, c. 617.

    CASE NOTES

    State’s right to resort to court of equity. —

    The failure of an officer to comply with the provisions of this section did not affect the right of the State to pursue its remedy in a court of equity. Moreover, the right to sell the real estate of the defendants under execution did not deprive the State of the right, if it elected to exercise it, to resort to a court of equity to subject such real estate to the lien of its judgment. Commonwealth v. Ford, 70 Va. (29 Gratt.) 683, 1878 Va. LEXIS 5 (1878) (decided under prior law).

    § 8.01-216. Comptroller’s power to adjust old claims.

    The Comptroller, with the advice of the Attorney General, may adjust and settle upon equitable principles, without regard to strict legal rules, any doubtful or disputed account or claim in favor of the Commonwealth which may have been standing on the books of his office not less than two years, and may, with the like advice, dismiss any proceedings instituted by him; but before such adjustment or settlement can in any wise affect the rights of the Commonwealth it shall be approved and endorsed by the Attorney General and shall then be submitted to the supervision of the judge of the Circuit Court of the City of Richmond, accompanied by a written statement signed by the Comptroller of the facts and reasons which, in his opinion, render such adjustment or settlement just and proper. When such judge endorses the same with his written approval, signed in his official character, it shall be considered and treated as valid and binding.

    History. Code 1950, § 8-779; 1977, c. 617.

    CASE NOTES

    This section has no application to the submission by the Auditor (now Comptroller) to the judgment of a court of competent jurisdiction, and a settlement made in good faith, by and with the advice and consent of the Attorney General, who represented and conducted the litigation on behalf of the Commonwealth, is binding on both litigants. Commonwealth v. Schmelz, 116 Va. 62 , 81 S.E. 45 , 1914 Va. LEXIS 8 (1914) (decided under prior law).

    Article 19.1. Virginia Fraud Against Taxpayers Act.

    § 8.01-216.1. Citation.

    This article may be cited as the Virginia Fraud Against Taxpayers Act.

    History. 2002, c. 842.

    Cross references.

    As to discriminatory and retaliatory actions against citizen whistle blowers, see § 2.2-3010.1.

    Effective date.

    This article became effective January 1, 2003.

    Law Review.

    For article surveying developments in health care law in Virginia, see 37 U. Rich. L. Rev. 199 (2002).

    For article reviewing case law and changes in legislation affecting Virginia construction law, see 40 U. Rich. L. Rev. 143 (2005).

    For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

    Michie’s Jurisprudence.

    For related discussion, see 17 M.J. State, § 25.

    CIRCUIT COURT OPINIONS

    Sovereign immunity barred Bowman claim brought under this section. —

    Sheriff’s deputies had no right to bring a claim under Bowman v. State Bank of Keysville , 229 Va. 534 , 331 S.E.2d 797 (1985), for wrongful termination against the sheriff based on either § 15.2-1722 or the Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq.; however, they did state a Bowman claim based on their duty under § 19.2-201 to report wrongful conduct. Bowman v. Hunt, 2011 Va. Cir. LEXIS 116.

    Accord and satisfaction. —

    A plea in bar based on accord and satisfaction was overruled where the localities in the relator’s Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq., action were not named parties in the multidistrict litigation and had not signed the settlement agreements, and the settlement agreements were not negotiable instruments. Commonwealth ex rel. McShane v. Reichl, 104 Va. Cir. 55, 2019 Va. Cir. LEXIS 1193 (Norfolk Dec. 10, 2019).

    Claim not stated. —

    Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq., claim failed to state a claim as although approval of the records submitted by a bank could amount to approval of a false claim, subdivision A 2 of § 8.01-216.3 unequivocally stated that the false record or statement had to have been used to get a false or fraudulent claim paid or approved, and the accounting records or statements submitted by the bank did not amount to a claim. Commonwealth ex rel. FX Analytics v. Bank of N.Y. Mellon, 84 Va. Cir. 473, 2012 Va. Cir. LEXIS 40 (Fairfax County May 1, 2012).

    § 8.01-216.2. Definitions.

    As used in this article, unless the context requires otherwise:

    “Attorney General” means the Attorney General of Virginia, the Chief Deputy, other deputies, counsels or assistant attorneys general employed by the Office of the Attorney General and designated by the Attorney General to act pursuant to this article.

    “Claim” means any request or demand, whether under a contract or otherwise, for money or property, regardless of whether the Commonwealth has title to the money or property, that (i) is presented to an officer, employee, or agent of the Commonwealth or (ii) is made to a contractor, grantee, or other recipient (a) if the money or property is to be spent or used on the Commonwealth’s behalf or to advance a governmental program or interest and (b) if the Commonwealth provides or has provided any portion of the money or property requested or demanded or will reimburse such contractor, grantee, or other recipient for any portion of the money or property that is requested or demanded. For purposes of this article, “claim” does not include requests or demands for money or property that the Commonwealth has paid to an individual as compensation for employment with the Commonwealth or as income subsidy with no restriction on that individual’s use of the money or property.

    “Commonwealth” means the Commonwealth of Virginia, any agency of state government, and any political subdivision of the Commonwealth.

    “Documentary material” means the original or any copy of any book, record, report, memorandum, paper, communication, tabulation, chart, or other document, or data compilations stored in or accessible through computer or other information retrieval systems, together with instructions and all other materials necessary to use or interpret such data compilations, and any product of discovery.

    “Employee” includes an employee or officer of the Commonwealth.

    “Employer” includes the Commonwealth.

    “Investigation” means any inquiry conducted by an investigator for the purpose of ascertaining whether any person is or has been engaged in any violation of this article.

    “Material” means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.

    “Obligation” means an established duty, whether or not fixed, arising from (i) an express or implied contractual, grantor-grantee, or licensor-licensee relationship; (ii) a fee-based or similar relationship; (iii) a statute or regulation; or (iv) the retention of any overpayment.

    “Official use” means any use that is consistent with the law, regulations, and policies of the Commonwealth, including use in connection with (i) internal memoranda and reports of the Office of the Attorney General; (ii) communications between the Office of the Attorney General and a federal, state, or local government agency, or a contractor of a federal, state, or local government agency, undertaken in furtherance of an Office of the Attorney General investigation or prosecution of a case; (iii) interviews of any qui tam relator or other witness; (iv) oral examinations; (v) depositions; (vi) the preparation for and response to civil discovery requests; (vii) the introduction into the record of a case or proceeding; (viii) applications, motions, memoranda, and briefs submitted to a court or other tribunal; and (ix) communications with government investigators, auditors, consultants, experts, the counsel of other parties, arbitrators, and mediators, concerning an investigation, case, or proceeding.

    “Person” includes any natural person, corporation, firm, association, organization, partnership, limited liability company, business or trust.

    “Product of discovery” means (i) the original or duplicate of any deposition, interrogatory, document, thing, result of the inspection of land or other property, examination, or admission, which is obtained by any method of discovery in any judicial or administrative proceeding of an adversarial nature; (ii) any digest, analysis, selection, compilation, or derivation of any item listed in clause (i); and (iii) any index or other manner of access to any item listed in clause (i).

    History. 2002, c. 842; 2011, cc. 651, 676.

    Editor’s note.

    Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 62 A, effective for the biennium ending June 30, 2022, provides:

    “1. The Division of Debt Collection shall provide legal services and advice related to the collection of funds owed the Commonwealth, including the recovery of certain funds pursuant to the Virginia Fraud Against Taxpayers Act (FATA) (§ 8.01-216.1 et seq.) by the Commonwealth as defined by 8.01-216.2 . All agencies and institutions shall follow the procedures for collection of funds owed the Commonwealth as specified in §§ 2.2-518 and 2.2-4800 et seq. of the Code of Virginia, and all agencies, institutions, and political subdivisions shall follow the procedures for recovery of funds as specified in §§ 2.2-518 and 8.01-216.1 et seq. of the Code of Virginia, except as provided otherwise therein or in this act.

    “2. The provisions of this section shall not apply to any investigations, litigation, or recoveries related to matters handled under the authority granted to the Medicaid Fraud Control Unit within the Department of Law pursuant to the provisions of 42 C.F.R. § 1007 et seq. All matters pertaining to the recovery of such Medicaid funds, including damages, fines, and penalties received pursuant to FATA, are specifically excluded from the provisions of this section.”

    Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 62 C, effective for the biennium ending June 30, 2022, provides: “The Division of Debt Collection may contract with private collection agents for the collection of debts amounting to less than $15,000.”

    The 2011 amendments.

    The 2011 amendment by c. 651 added the definitions for “Employee” and “Employer.”

    The 2011 amendment by c. 676 rewrote the definition for “Claim,” which read: “’Claim’ means any request or demand, whether under a contract or otherwise, for money or property that is made to a contractor, grantee, or other recipient if the Commonwealth provides any portion of the money or property that is requested or demanded, or if the Commonwealth will reimburse such contractor, grantee, or other recipient for any portion of the money or property that is requested or demanded”; and added the definitions for “Material,” “Obligation,” and “Official use.”

    Law Review.

    For annual survey article, “Local Government Law,” see 46 U. Rich. L. Rev. 175 (2011).

    CASE NOTES

    “Person.” —

    Attorney general had no authority to issue a civil investigative demand to the University of Virginia, under the Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq., because the University was not a “person,” as defined in the act, as: (1) Commonwealth agencies were not bound by statutes of general application unless named expressly or included by necessary implication; (2) university was a Commonwealth agency; and (3) § 8.01-216.2 did not expressly include the Commonwealth in the statute’s definition of “person,” and the statute’s use of “corporation” did not include Commonwealth agencies. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 , 722 S.E.2d 626, 2012 Va. LEXIS 47 (2012).

    University of Virginia was not a “person,” as defined in Virginia Fraud Against Taxpayers Act, as the principle of noscitur a sociis showed a corporation included in that definition should be understood as a private sector entity, not a Commonwealth agency. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 , 722 S.E.2d 626, 2012 Va. LEXIS 47 (2012).

    There was no waiver of sovereign immunity subjecting the Commonwealth to the false claims provision of Virginia Fraud Against Taxpayers Act. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 , 722 S.E.2d 626, 2012 Va. LEXIS 47 (2012).

    Functional incongruities caused by defining a Commonwealth agency as a “person” under Virginia Fraud Against Taxpayers Act showed excluding an agency from that definition best refined the act as a consistent and harmonious whole so as to effectuate the legislative goal of the act. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 , 722 S.E.2d 626, 2012 Va. LEXIS 47 (2012).

    Attorney General had no authority to issue a Civil Investigative Demand to the University of Virginia (UVA), under the Virginia Fraud Against Taxpayers Act (FATA), Va. Code Ann. § 8.01-216.1 et seq., because UVA was not a “person,” as defined in FATA, as a reference to “agency” in Va. Code Ann. § 8.01-216.8 did not pertain directly to a “person” under FATA. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 , 722 S.E.2d 626, 2012 Va. LEXIS 47 (2012).

    Transit authority not a corporation. —

    Trial court did not err in sustaining a board’s demurrer in a suit challenging approval of a transit authority’s special exception application; although “business and financial interest” had the same meaning as “business and financial relationship,” and although the transit authority was the contract purchaser, the transit authority was a governmental agency, not a private corporation, and therefore was not a corporation within the meaning of subsection A of § 15.2-852 and afforded no opportunity for financial benefit to its unpaid directors. It therefore was not a “corporation” within the meaning of the statute. Newberry Station Homeowners Ass'n v. Bd. of Supervisors, 285 Va. 604 , 740 S.E.2d 548, 2013 Va. LEXIS 52 (2013).

    Heightened pleading standard. —

    False Claim Act and Virginia Fraud Against Taxpayers Act claims were both subject to the heightened pleading requirements applicable to fraud claims. United States v. Riverside Healthcare Ass'n, No. 4:11cv109, 2015 U.S. Dist. LEXIS 37134 (E.D. Va. Mar. 23, 2015).

    Claim not stated. —

    Relators failed to plead sufficient factual matter to satisfy the particularity requirement for fraud with respect to their False Claims Act and Virginia Fraud Against Taxpayers Act claims where although they included particularized allegations that defendants overbilled specific individuals for certain services, they did not specifically allege that defendants presented claims for payment in connection with any individual claim enumerated in the complaint. Nor did their specific allegations of defendants’ fraudulent conduct necessarily lead to a plausible inference that false claims were presented to the government. United States v. Riverside Healthcare Ass'n, No. 4:11cv109, 2015 U.S. Dist. LEXIS 37134 (E.D. Va. Mar. 23, 2015).

    CIRCUIT COURT OPINIONS

    Meaning of “Commonwealth.” —

    As used in the first sentence of subsection H of § 8.01-216.6 , the term Commonwealth was not limited to Virginia where the Attorney General was notified of the multidistrict litigation settlement, chose not to intervene in the instant action, and that construction did not affect the Attorney General’s authority. Commonwealth ex rel. McShane v. Reichl, 104 Va. Cir. 55, 2019 Va. Cir. LEXIS 1193 (Norfolk Dec. 10, 2019).

    § 8.01-216.3. False claims; civil penalty.

    1. Any person who:
      1. Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;
      2. Knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;
      3. Conspires to commit a violation of subdivision 1, 2, 4, 5, 6, 7, or 8;
      4. Has possession, custody, or control of property or money used, or to be used, by the Commonwealth and knowingly delivers, or causes to be delivered, less than all such money or property;
      5. Has possession, custody, or control of an illegal gambling device, as defined in § 18.2-325 , and knowingly conceals, avoids, or decreases an obligation to pay or transmit money to the Commonwealth that is derived from the operation of such device;
      6. Is authorized to make or deliver a document certifying receipt of property used, or to be used, by the Commonwealth and, intending to defraud the Commonwealth, makes or delivers the receipt without completely knowing that the information on the receipt is true;
      7. Knowingly buys or receives as a pledge of an obligation or debt, public property from an officer or employee of the Commonwealth who lawfully may not sell or pledge the property; or
      8. Knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Commonwealth or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Commonwealth;shall be liable to the Commonwealth for a civil penalty of not less than $10,957 and not more than $21,916, except that these lower and upper limits on liability shall automatically be adjusted to equal the amounts allowed under the Federal False Claims Act, 31 U.S.C. § 3729 et seq., as amended, as such penalties in the Federal False Claims Act are adjusted for inflation by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended (28 U.S.C. § 2461 Note, P.L. 101-410), plus three times the amount of damages sustained by the Commonwealth.A person violating this section shall be liable to the Commonwealth for reasonable attorney fees and costs of a civil action brought to recover any such penalties or damages. All such fees and costs shall be paid to the Attorney General’s Office by the defendant and shall not be included in any damages or civil penalties recovered in a civil action based on a violation of this section.
    2. If the court finds that (i) the person committing the violation of this section furnished officials of the Commonwealth responsible for investigating false claims violations with all information known to the person about the violation within 30 days after the date on which the defendant first obtained the information; (ii) such person fully cooperated with any Commonwealth investigation of such violation; (iii) at the time such person furnished the Commonwealth with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced with respect to such violation; and (iv) the person did not have actual knowledge of the existence of an investigation into such violation, the court may assess not less than two times the amount of damages that the Commonwealth sustains because of the act of that person. A person violating this section shall also be liable to the Commonwealth for the costs of a civil action brought to recover any such penalty or damages.
    3. For purposes of this section, the terms “knowing” and “knowingly” mean that a person, with respect to information, (i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information and require no proof of specific intent to defraud.
    4. Except as provided in subdivision A 5, this section shall not apply to claims, records, or statements relating to state or local taxes.

    History. 2002, c. 842; 2004, c. 589; 2007, c. 569; 2011, c. 676; 2018, c. 624; 2020, c. 791.

    The 2004 amendments.

    The 2004 amendment by c. 589 substituted “state or local taxes” for “income taxation as set forth in Title 58.1” in subsection D and made a minor stylistic change in subsection B.

    The 2007 amendments.

    The 2007 amendment by c. 569, in the paragraph following subdivision A 7, substituted “$5,500” for “$5,000” and “$11,000” for “$10,000”; and added the last paragraph in subsection A.

    The 2011 amendments.

    The 2011 amendment by c. 676, in subdivision A 1, deleted “to an officer or employee of the Commonwealth” following “presented”; in subdivision A 2, inserted “material” and deleted “paid or approved by the Commonwealth” from the end; rewrote subdivision A 3, which read: “Conspires to defraud the Commonwealth by getting a false or fraudulent claim allowed or paid”; in subdivision A 4, substituted “and knowingly delivers, or causes to be delivered, less than all such money or property” for “and, intending to defraud the Commonwealth or willfully to conceal the property, delivers, or causes to be delivered, less property than the amount for which the person receives a certificate or receipt”; in subdivision A 5, substituted “Is authorized” for “Authorizes”; in subdivision A 7, substituted “a false record or statement material to an obligation” for “a false record or statement to conceal, avoid, or decrease an obligation” and added “or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Commonwealth”; and made minor stylistic changes in subsections B and C.

    The 2018 amendments.

    The 2018 amendment by c. 624 rewrote the end of the first full paragraph, which formerly read “shall be liable to the Commonwealth for a civil penalty of not less than $5,500 and not more than $11,000, plus three times the amount of damages sustained by the Commonwealth.”

    The 2020 amendments.

    The 2020 amendment by c. 791, in subdivision A 4, substituted “7, or 8” for “or 7”; inserted a new subdivision A 5 and renumbered accordingly; and, in subsection D, substituted “Except as provided in subdivision A 5, this” for “This.”

    Michie’s Jurisprudence.

    For related discussion, see 12B M.J. Master and Servant, § 11.

    CASE NOTES

    Claim not stated. —

    Relators failed to plead sufficient factual matter to satisfy the particularity requirement for fraud with respect to their False Claims Act and Virginia Fraud Against Taxpayers Act claims where although they included particularized allegations that defendants overbilled specific individuals for certain services, they did not specifically allege that defendants presented claims for payment in connection with any individual claim enumerated in the complaint. Nor did their specific allegations of defendants’ fraudulent conduct necessarily lead to a plausible inference that false claims were presented to the government. United States v. Riverside Healthcare Ass'n, No. 4:11cv109, 2015 U.S. Dist. LEXIS 37134 (E.D. Va. Mar. 23, 2015).

    Heightened pleading standard. —

    False Claim Act and Virginia Fraud Against Taxpayers Act claims were both subject to the heightened pleading requirements applicable to fraud claims. United States v. Riverside Healthcare Ass'n, No. 4:11cv109, 2015 U.S. Dist. LEXIS 37134 (E.D. Va. Mar. 23, 2015).

    Jurisdiction. —

    Federal court lacked subject matter jurisdiction over qui tam complaint brought under Virginia Fraud Against Taxpayers Act (VFATA) because federal law did not create any cause of action in complaint and relators could have prevailed by proving that defendants violated state Medicaid regulations without showing any violation of federal law. Virginia ex rel. Hunter Labs., L.L.C. v. Virginia, 828 F.3d 281, 2016 U.S. App. LEXIS 12515 (4th Cir. 2016), transferred, 95 Va. Cir. 323, 2017 Va. Cir. LEXIS 69 (Fairfax County Mar. 27, 2017).

    CIRCUIT COURT OPINIONS

    Claim not stated. —

    Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq., claim failed to state a claim as although approval of the records submitted by a bank could amount to approval of a false claim, subdivision A 2 of § 8.01-216.3 unequivocally stated that the false record or statement had to have been used to get a false or fraudulent claim paid or approved, and the accounting records or statements submitted by the bank did not amount to a claim. Commonwealth ex rel. FX Analytics v. Bank of N.Y. Mellon, 84 Va. Cir. 473, 2012 Va. Cir. LEXIS 40 (Fairfax County May 1, 2012).

    Staff members failed to state a claim for relief against counties pursuant to the statute because there was no allegation that met the actionable conduct in the statute; no fraud was alleged in any of the members’ reports of mismanagement. Baldwin v. Baker, 94 Va. Cir. 366, 2016 Va. Cir. LEXIS 191 (Prince Edward County Oct. 11, 2016).

    Complaint and amended complaint fell far short of the requirements for pleading fraud under the Virginia Fraud Against Taxpayers Act because a corporation could not know from the amended complaint what fraudulent claims or false statements it was alleged to have presented to a county water and sewer authority, who made them, to whom they were made, when, and how much the authority paid it in reliance on the claims or statements. Commonwealth ex rel. McShane, 2019 Va. Cir. LEXIS 1581 (Norfolk Feb. 14, 2019).

    Civil penalties assessed. —

    Defendants were assessed civil penalties of $1,298,000 for 236 separate violations of the Virginia Fraud Against Taxpayers Act based on the invoices defendants sent to using agencies, $1,298,000 for the 236 violations of the Act based on the invoices defendants sent to using agencies and $60,500 for the 11 violations of the Act based on the invoices defendants sent to using agencies; defendants were also assessed the Commonwealth’s costs and fees under the Act. Commonwealth v. ProNurses, 91 Va. Cir. 197, 2015 Va. Cir. LEXIS 172 (Richmond Sept. 24, 2015).

    False statements material to false claims. —

    Defendants knowingly made 236 false statements material to false claims in violation of the Virginia Fraud Against Taxpayers Act as they made a claim on the government in the form of the invoices submitted in support of an actual claim for payment; defendants knowingly made these statements, and the statements were material to a false claim in that the false claim was based directly on the fraudulent pay rates that constituted the false statements. Commonwealth v. ProNurses, 91 Va. Cir. 197, 2015 Va. Cir. LEXIS 172 (Richmond Sept. 24, 2015).

    False statements material to obligation to pay money. —

    Defendants knowingly made 11 false statements material to an obligation to pay money to the Commonwealth in violation of the Virginia Fraud Against Taxpayers Act as they submitted monthly detailed usage reports to the Virginia Department of General Services that falsely stated what defendants had billed using agencies; defendant one either prepared or reviewed these monthly detailed usage reports and was aware of the appropriate reporting procedure in the contract, which imputed knowledge to both defendant one and defendant two, and the underreported monthly detailed usage reports contained false statements and allowed defendants to decrease the amount defendant two owed under the 2 percent surcharge in the contract. Commonwealth v. ProNurses, 91 Va. Cir. 197, 2015 Va. Cir. LEXIS 172 (Richmond Sept. 24, 2015).

    Treble damages awarded. —

    Commonwealth was awarded treble damages of $441,620.76 for each of two violations of the Virginia Fraud Against Taxpayers Act, wherein defendants submitted 236 fraudulent invoices to the Commonwealth and/or its agencies for payment under a contract to which they knew they were not entitled, and made 236 false statements material to false claims on the government in the form of the invoices in support of an actual claim for payment, but these treble damages merged as they stemmed from the same fraudulent conduct; defendants were also liable for treble damages of $10,761.00 for submitting 11 monthly detailed usage reports to the Virginia Department of General Services that falsely stated what defendants had billed using agencies. Commonwealth v. ProNurses, 91 Va. Cir. 197, 2015 Va. Cir. LEXIS 172 (Richmond Sept. 24, 2015).

    Submission of fraudulent invoices. —

    Defendants violated the Virginia Fraud Against Taxpayers Act by: (1) submitting 236 fraudulent invoices to the Commonwealth and/or its agencies for payment under a contract for monies to which they knew they were not entitled; and/or (2) continually overbilling with reckless disregard or in deliberate ignorance of what was allowed under the contract; and (3) failing to inform Commonwealth agencies that the pay rate the agencies requested was in excess of what was allowed under contract. Defendant one acted knowingly as she created or reviewed all invoices and oversaw defendant two’s payroll and had actual knowledge of what defendant two was billing, what defendant two was paying its employees and what was allowed under the contract. Commonwealth v. ProNurses, 91 Va. Cir. 197, 2015 Va. Cir. LEXIS 172 (Richmond Sept. 24, 2015).

    § 8.01-216.4. Attorney General; investigation, civil action.

    The Attorney General shall investigate any violation of § 8.01-216.3 . If the Attorney General finds that a person has violated or is violating § 8.01-216.3 , the Attorney General may bring a civil action under this section.

    History. 2002, c. 842.

    CIRCUIT COURT OPINIONS

    Claim preclusion. —

    A plea in bar based on res judicata was sustained as to the relator’s claim for treble damages, but overruled as to the relator’s claim for civil penalties as the class had not adequately represented Virginia’s legal right to enforce its penal statutes. Commonwealth ex rel. McShane v. Reichl, 104 Va. Cir. 55, 2019 Va. Cir. LEXIS 1193 (Norfolk Dec. 10, 2019).

    § 8.01-216.5. Civil actions filed by private persons; Commonwealth may intervene.

    1. A person may bring a civil action for a violation of § 8.01-216.3 for the person and for the Commonwealth. The action shall be brought in the name of the Commonwealth. The action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting.
    2. A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Commonwealth. The complaint shall be filed in camera, shall remain under seal for at least 120 days, and shall not be served on the defendant until the court so orders. The Commonwealth may elect to intervene and proceed with the action within 120 days after it receives both the complaint and the material evidence and information.
    3. The Commonwealth may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal. Any such motions may be supported by affidavits or other submissions in camera. The defendant shall not be required to respond to any motion for judgment filed under this section until twenty-one days after the complaint is unsealed and served upon the defendant.
    4. Before the expiration of the 120-day period or any extensions obtained under subsection C, the Commonwealth shall proceed with the action, in which case the action shall be conducted by the Commonwealth, or notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to prosecute the action.
    5. When a person brings an action under this section, no person other than the Commonwealth may intervene or bring a related action based on the facts underlying the pending action.

    History. 2002, c. 842; 2007, c. 569.

    The 2007 amendments.

    The 2007 amendment by c. 569 substituted “complaint” for “motion for judgment” three times in subsection B and twice in subsection C.

    CASE NOTES

    Complaint under seal. —

    Where complaint under the Virginia Fraud Against Taxpayers Act alleged that defendant overcharged the Commonwealth of Virginia for Medicaid-reimbursable testing and provided kickbacks to healthcare providers to induce the referral of Medicaid business, relators’ failure to seal the amended complaint was not a basis for dismissal because the amended complaint did not depart so profoundly from the original complaint as to contain new and substantially different allegations of fraud. Virginia v. Quest Diagnostics, Inc., No. 1:13-CV-1129, 2014 U.S. Dist. LEXIS 69023 (E.D. Va. May 13, 2014).

    CIRCUIT COURT OPINIONS

    Meaning of “Commonwealth.” —

    As used in the first sentence of subsection H of § 8.01-216.6 , the term Commonwealth was not limited to Virginia where the Attorney General was notified of the multidistrict litigation settlement, chose not to intervene in the instant action, and that construction did not affect the Attorney General’s authority. Commonwealth ex rel. McShane v. Reichl, 104 Va. Cir. 55, 2019 Va. Cir. LEXIS 1193 (Norfolk Dec. 10, 2019).

    Claim preclusion. —

    A plea in bar based on res judicata was sustained as to the relator’s claim for treble damages, but overruled as to the relator’s claim for civil penalties as the class had not adequately represented Virginia’s legal right to enforce its penal statutes. Commonwealth ex rel. McShane v. Reichl, 104 Va. Cir. 55, 2019 Va. Cir. LEXIS 1193 (Norfolk Dec. 10, 2019).

    Dismissal of a qui tam action. —

    Dismissal of a qui tam action that was brought by a county employee was appropriate because neither the county attorney, nor the Attorney General of Virginia had a duty to represent the county employee, and the employee could not pursue a Virginia qui tam suit pro se. Commonwealth ex rel. Glean v. Supervisors of Fairfax Cty., 107 Va. Cir. 113, 2021 Va. Cir. LEXIS 8 (Fairfax County Jan. 11, 2021).

    § 8.01-216.6. Rights of private plaintiff and Commonwealth.

    1. If the Commonwealth proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action. Such person shall have the right to continue as a party to the action, subject to the limitations of this section.
    2. The Commonwealth may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the Commonwealth of the filing of the complaint and the court has provided the person with an opportunity for a hearing on the complaint.
    3. The Commonwealth may settle the action with the defendant notwithstanding the objections of the person initiating the action if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good cause, such hearing may be held in camera. The Commonwealth may, for good cause shown, move the court for a partial lifting of the seal to facilitate the investigative process or settlement.
    4. Upon a showing by the Commonwealth that unrestricted participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the Commonwealth’s prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the person’s participation, such as (i) limiting the number of witnesses the person may call; (ii) limiting the length of the testimony of such witnesses; (iii) limiting the person’s cross-examination of witnesses; and (iv) otherwise limiting the participation by the person in the litigation.
    5. Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person initiating the action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation by the person in the litigation.
    6. If the Commonwealth elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action. If the Commonwealth so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts at the Commonwealth’s expense. When a person proceeds with the action, the court, without limiting the status and rights of the person initiating the action, may nevertheless permit the Commonwealth to intervene at a later date upon a showing of good cause.
    7. Whether or not the Commonwealth proceeds with the action, upon a showing by the Commonwealth that certain actions of discovery by the person initiating the action would interfere with the Commonwealth’s investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay such discovery for a period of not more than sixty days. Such a showing shall be conducted in camera. The court may extend the sixty-day period upon a further showing in camera that the Commonwealth has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceedings.
    8. Notwithstanding the provisions of subsection B of § 8.01-216.5 , the Commonwealth may elect to pursue its claim through any alternate remedy available to the Commonwealth, including any administrative proceeding to determine a civil money penalty. If any such alternate remedy is pursued in another proceeding, the person initiating the action shall have the same rights in such proceeding as such person would have had if the action had continued under this section. Any finding of fact or conclusion of law made in such other proceeding that has become final shall be conclusive on all parties to an action under this article. For purposes of this subsection, a finding or conclusion is final if it has been finally determined on appeal to a court of competent jurisdiction of the Commonwealth, if the time for filing an appeal with respect to the finding or conclusion has expired, or if the finding or conclusion is not subject to judicial review.

    History. 2002, c. 842; 2007, c. 569.

    The 2007 amendments.

    The 2007 amendment by c. 569 substituted “complaint” for “motion” twice in subsection B.

    CIRCUIT COURT OPINIONS

    Claim preclusion. —

    A plea in bar based on res judicata was sustained as to the relator’s claim for treble damages, but overruled as to the relator’s claim for civil penalties as the class had not adequately represented Virginia’s legal right to enforce its penal statutes. Commonwealth ex rel. McShane v. Reichl, 104 Va. Cir. 55, 2019 Va. Cir. LEXIS 1193 (Norfolk Dec. 10, 2019).

    Meaning of “Commonwealth.” —

    As used in the first sentence of subsection H of § 8.01-216.6 , the term Commonwealth was not limited to Virginia where the Attorney General was notified of the multidistrict litigation settlement, chose not to intervene in the instant action, and that construction did not affect the Attorney General’s authority. Commonwealth ex rel. McShane v. Reichl, 104 Va. Cir. 55, 2019 Va. Cir. LEXIS 1193 (Norfolk Dec. 10, 2019).

    Qui tam action. —

    As a county employee who brought a qui tam action was not provided with an opportunity for a hearing on the complaint at the Commonwealth of Virginia’s request, the Commonwealth’s motion to dismiss the complaint was inappropriate. Commonwealth ex rel. Glean v. Supervisors of Fairfax Cty., 107 Va. Cir. 113, 2021 Va. Cir. LEXIS 8 (Fairfax County Jan. 11, 2021).

    § 8.01-216.7. Award to private plaintiff.

    1. Except as hereinafter provided, if the Commonwealth proceeds with an action brought by a person under § 8.01-216.5 , such person shall receive at least fifteen percent but not more than twenty-five percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action. Where the action is one that the court finds to be based primarily on disclosures of specific information, other than information provided by the person bringing the action, relating to allegations or transactions in a criminal, civil, or administrative hearing, in a legislative, administrative, or Auditor of Public Accounts’ report, hearing, audit, or investigation, or from the news media, the court may award such sums as it considers appropriate, but in no case more than ten percent of the proceeds, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation. Any payment to a person under this section shall be made from the proceeds of the award. Any such person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.
    2. If the Commonwealth does not proceed with an action, the person bringing the action or settling the claim shall receive an amount that the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than twenty-five percent and not more than thirty percent of the proceeds of the award or settlement and shall be paid out of the proceeds. Such person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.
    3. Whether or not the Commonwealth proceeds with the action, if the court finds that the action was brought by a person who planned and initiated the violation of § 8.01-216.3 upon which the action was brought, or if the person bringing the action is convicted of criminal conduct arising from his role in the violation of § 8.01-216.3 , that person shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. Such dismissal shall not prejudice the right of the Commonwealth to continue the action.
    4. If the Commonwealth does not proceed with the action and the person bringing the action conducts the action, the court may award to the defendant its reasonable attorneys’ fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.

    History. 2002, c. 842.

    CASE NOTES

    Relators entitled to percentage of gross proceeds. —

    Term proceeds in this section meant gross proceeds rather than net proceeds and thus, the relators were entitled to 25% of the gross proceeds of the settlement in their action alleging several laboratories inflated bills submitted to the Virginia Medicaid program. Commonwealth v. Commonwealth, ex rel., Hunter Labs., LLC, 296 Va. 32 , 817 S.E.2d 318, 2018 Va. LEXIS 100 (2018).

    Damages. —

    Relators who originally filed claims under the Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq., were awarded 20 percent of the settlement amount where the relators had reported a fraud that was previously unknown to the government, but the case still required substantial effort by the government to develop the necessary facts to win the lawsuit. United States v. Universal Health Servs., 889 F. Supp. 2d 791, 2012 U.S. Dist. LEXIS 126036 (W.D. Va. 2012).

    In a Medicaid fraud qui tam action, relators were only entitled to 28% of the Commonwealth’s share for claims that accrued from the Virginia Fraud Against Taxpayers Act’s enactment through and until date when the settlement agreement was fully executed because the Act did not apply retroactively to claims pre-dating its enactment, and the “proceeds of the settlement” meant only the settlement agreement amount that was actually received by the Commonwealth after returning overpayments to the United States. Virginia ex rel. Hunter Labs LLC v. Quest Diagnostics Inc., 100 F. Supp. 3d 542, 2015 U.S. Dist. LEXIS 54961 (E.D. Va. 2015), vacated, 828 F.3d 281, 2016 U.S. App. LEXIS 12515 (4th Cir. 2016).

    CIRCUIT COURT OPINIONS

    Relators entitled to percentage of award. —

    Relators were entitled to 28% of the entire amount established in the settlement agreement because the Commonwealth chose not to intervene in the matter and it would be inequitable for the relators to be undercut for performing a valuable service on behalf of the government where the use of “or” in the context of the Virginia Fraud Against Taxpayers Act clearly indicated that a relator was entitled to the “proceeds of the award,” meaning something decided by the trier of fact, or “the settlement,” the parties chose the latter and entered into a settlement agreement, the Commonwealth was bound to the terms of that agreement, and the parties settled for $1.25 million as a penalty for the fraudulent conduct perpetrated by the defendants. Commonwealth ex rel. Hunter Labs., LLC v. Quest Diagnostics Inc., 95 Va. Cir. 323, 2017 Va. Cir. LEXIS 69 (Fairfax County Mar. 27, 2017), aff'd, 296 Va. 32 , 817 S.E.2d 318, 2018 Va. LEXIS 100 (2018).

    § 8.01-216.8. Certain actions barred; relief from employment discrimination; waiver of sovereign immunity.

    No court shall have jurisdiction over any action brought under this article by an inmate incarcerated within a state or local correctional facility as defined in § 53.1-1.

    No court shall have jurisdiction over an action brought under this article against any department, authority, board, bureau, commission, or agency of the Commonwealth, any political subdivision of the Commonwealth, a member of the General Assembly, a member of the judiciary, or an exempt official if the action is based on evidence or information known to the Commonwealth when the action was brought. For purposes of this section, “exempt official” means the Governor, Lieutenant Governor, Attorney General and the directors or members of any department, authority, board, bureau, commission or agency of the Commonwealth or any political subdivision of the Commonwealth.

    In no event may a person bring an action under this article that is based upon allegations or transactions that are the subject of a civil suit or an administrative proceeding in which the Commonwealth is already a party.

    The court shall dismiss an action or claim under § 8.01-216.5 unless opposed by the Commonwealth if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed in a criminal, civil or administrative hearing in which the Commonwealth or its agent is a party, in a Virginia legislative, administrative, or Auditor of Public Accounts’ report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. For purposes of this section, “original source” means an individual (i) who either prior to a public disclosure has voluntarily disclosed to the Commonwealth the information on which the allegations or transactions in a claim are based or (ii) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions and who has voluntarily provided the information to the Commonwealth before filing an action under this article.

    Except as otherwise provided in this section, the Commonwealth shall not be liable for expenses a person incurs in bringing an action under this article.

    Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of an action under this article or other efforts to stop one or more violations of this article. Relief shall include reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorney fees. Any relief awarded to an employee under this section shall be reduced by any amount awarded to the employee through a state or local grievance process. An action under this section may be brought in a court of competent jurisdiction for the relief provided in this section, but may not be brought more than three years after the date the discrimination occurred. This paragraph shall constitute a waiver of sovereign immunity and creates a cause of action by an employee against the Commonwealth if the Commonwealth is the employer responsible for the adverse employment action that would entitle the employee to the relief set forth in this paragraph.

    History. 2002, c. 842; 2011, cc. 651, 676; 2012, c. 479; 2014, c. 403.

    Cross references.

    As to discrimination and retaliatory actions against citizen whistle blowers, see § 2.2-3010.1.

    The 2011 amendments.

    The 2011 amendment by c. 651, in the next-to-last paragraph, added the exception and made a related change; and in the last paragraph, added the third sentence and the last sentence.

    The 2011 amendment by c. 676 rewrote the fifth paragraph, which read: “No court shall have jurisdiction over an action under this article based upon the public disclosure of allegations or transactions in a criminal, civil or administrative hearing, in a legislative, administrative, or Auditor of Public Accounts’ report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. For purposes of this section, ‘original source’ means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Commonwealth before filing an action under this article that is based on the information”; and rewrote the last paragraph, which read: “Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his employer because he has opposed any practice referenced in § 8.01-216.3 or because he has initiated, testified, assisted, or participated in any manner in any investigation, action or hearing under this article, shall be entitled to all relief necessary to make the employee whole. Such relief shall include reinstatement with the same seniority status such employee would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees. An employee may bring an action in a court of competent jurisdiction for the relief provided in this section.”

    The 2012 amendments.

    The 2012 amendment by c. 479 inserted “Virginia” preceding “legislative” in the first sentence of the fifth paragraph; and in the last paragraph, substituted “agent, or associated others in furtherance of an action under this article or other efforts” for “or agent on behalf of the employee, contractor, or agent or associated others in furtherance of others’ efforts” in the first sentence and added “but may not be brought more than three years after the date the discrimination occurred” at the end of the next-to-last sentence.

    The 2014 amendments.

    The 2014 amendment by c. 403 deleted the first paragraph.

    Law Review.

    For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

    Michie’s Jurisprudence.

    For related discussion, see 12B M.J. Master and Servant, § 11.

    CASE NOTES

    University of Virginia not a “person.” —

    Attorney General had no authority to issue a Civil Investigative Demand to the University of Virginia, under the Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq., because University of Virginia was not a “person,” as defined in the act, as a reference to “agency” in § 8.01-216.8 did not pertain directly to a “person” under Fraud Against Taxpayers Act. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 , 722 S.E.2d 626, 2012 Va. LEXIS 47 (2012).

    Remedies for retaliatory discharge. —

    Circuit court did not abuse its discretion in declining to award front pay and/or compensation for lost pension benefits in a former employee’s wrongful termination action against a city because the court determined that the employee was made whole through the employee’s other awards against the city, absent an award of pension compensation, and that his claim for pension compensation was otherwise subject to too much speculation. Lewis v. City of Alexandria, 287 Va. 474 , 756 S.E.2d 465, 2014 Va. LEXIS 65 (2014).

    Retaliatory discharge. —

    Judgment sustaining a county’s demurrer with regard to an employee’s retaliatory discharge action under § 8.01-216.8 as barred by the doctrine of sovereign immunity was affirmed because § 8.01-216.8 did not contain an explicit waiver of sovereign immunity allowing employees of the Commonwealth and its political subdivisions to bring retaliatory discharge actions. Ligon v. County of Goochland, 279 Va. 312 , 689 S.E.2d 666, 2010 Va. LEXIS 26 (2010).

    CIRCUIT COURT OPINIONS

    Retaliatory discharge. —

    Plaintiffs’ Bowman claim based on the Virginia Fraud Against Taxpayers Act was dismissed because sovereign immunity barred circuit courts from hearing Virginia Fraud Against Taxpayers Act claims or common-law claims based on the public policy of the Act brought by employees of the Commonwealth against one of its political subdivisions. Carter v. Hunt, 83 Va. Cir. 265, 2011 Va. Cir. LEXIS 259 (Franklin County Aug. 16, 2011).

    Claim not stated. —

    Staff members failed to state a claim for relief against counties for wrongful discharge under the Virginia Fraud Against Taxpayers Act because they filed no action or formal grievance regarding the reported mismanagement, and they never included any allegation in their reports to the community services board that included fraud, false pretenses, conversion or conspiracy to commit any of those acts. Baldwin v. Baker, 94 Va. Cir. 366, 2016 Va. Cir. LEXIS 191 (Prince Edward County Oct. 11, 2016).

    Staff members failed to state a claim for an intentional tort of wrongful discharge under the public policy of the Virginia Fraud Against Taxpayers Act; the statute provides a statutory right to relief for a class of persons exercising their lawful rights under the Act in the whistleblower provision, but the statute does not make an explicit statement of rights that a category of persons enjoy separate and apart from the aforementioned whistleblower provision. Baldwin v. Baker, 94 Va. Cir. 366, 2016 Va. Cir. LEXIS 191 (Prince Edward County Oct. 11, 2016).

    § 8.01-216.9. Procedure; statute of limitations.

    A subpoena requiring the attendance of a witness at a trial or hearing conducted under this article may be served at any place in the Commonwealth.

    A civil action under § 8.01-216.4 or 8.01-216.5 may not be brought (i) more than six years after the date on which the violation is committed or (ii) more than three years after the date when facts material to the right of action are known or reasonably should have been known by the official of the Commonwealth charged with responsibility to act in the circumstances, but in that event no more than ten years after the date on which the violation is committed, whichever occurs last.

    If the Commonwealth elects to intervene and proceed with an action brought under § 8.01-216.5 , the Commonwealth may file its own complaint or amend the complaint of a person who has brought an action under § 8.01-216.5 to clarify or add detail to any claim in which the Commonwealth is intervening and to add any additional claim for which the Commonwealth contends it is entitled to relief. Any complaint filed by the Commonwealth pursuant to this paragraph shall relate back to the filing date of the complaint of the person who originally brought the action, to the extent that the claim of the Commonwealth arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth, in such person’s complaint.

    In any action brought under § 8.01-216.4 or 8.01-216.5 , the Commonwealth shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.

    Notwithstanding any other provision of law, a final judgment rendered in favor of the Commonwealth in any criminal proceeding charging fraud or false statements, whether upon a verdict after trial or upon a plea of guilty or nolo contendere, shall estop the defendant from denying the essential elements of the offense in any action that involves the same transaction as in the criminal proceeding and which is brought under § 8.01-216.4 or 8.01-216.5 .

    History. 2002, c. 842; 2007, c. 569; 2011, c. 676.

    The 2007 amendments.

    The 2007 amendment by c. 569 inserted “8.01-216.4 or” in the second, next-to-last and last paragraphs.

    The 2011 amendments.

    The 2011 amendment by c. 676 added the third paragraph.

    § 8.01-216.10. Civil investigative demands; issuance; sharing information.

    1. Whenever the Attorney General or his designee has reason to believe that any person may be in possession, custody, or control of any documentary material or information relevant to a false claims law investigation, the Attorney General or his designee may, before commencing a civil proceeding or making an election under this article, issue in writing and cause to be served upon such person, a civil investigative demand requiring such person (i) to produce such documentary material for inspection and copying, (ii) to answer in writing written interrogatories with respect to such documentary material or information, (iii) to give oral testimony concerning such documentary material or information, or (iv) to furnish any combination of such material, answers, or testimony.
    2. Whenever a civil investigative demand is an express demand for any product of discovery, the Attorney General shall cause to be served, in any manner authorized by this article, a copy of such demand upon the person from whom the discovery was obtained and shall notify the person to whom such demand is issued of the date on which such copy was served.
    3. Any information obtained by the Attorney General or his designee pursuant to this section may be shared with any qui tam relator and any state or federal governmental entity if the Attorney General or his designee determines that such information is necessary as part of any false claims investigation.

    History. 2002, c. 842; 2011, c. 676; 2012, c. 479.

    The 2011 amendments.

    The 2011 amendment by c. 676, in subsection A, twice inserted “or his designee” and inserted “or making an election”; and added subsection C.

    The 2012 amendments.

    The 2012 amendment by c. 479 inserted “and any state or federal governmental entity” in subsection C.

    § 8.01-216.11. Civil investigative demands; contents and deadlines.

    Each civil investigative demand issued under this article shall state the nature of the conduct constituting the alleged violation of a false claims law that is under investigation, and the applicable provision of law alleged to be violated.

    If such demand is for the production of documentary material, the demand shall (i) describe each class of documentary material to be produced with such definiteness and certainty as to permit such material to be fairly identified; (ii) prescribe a return date for each such class that will provide a reasonable period of time within which the material so demanded may be assembled and made available for inspection and copying; and (iii) identify the false claims law investigator to whom such material shall be made available.

    If such demand is for answers to written interrogatories, the demand shall (i) set forth with specificity the written interrogatories to be answered; (ii) prescribe dates at which time answers to written interrogatories shall be submitted; and (iii) identify the false claims law investigator to whom such answers shall be submitted.

    If such demand is for the giving of oral testimony, the demand shall (i) prescribe a date, time, and place at which oral testimony shall be commenced; (ii) identify a false claims law investigator who shall conduct the examination and the custodian to whom the transcript of such examination shall be submitted; (iii) specify that such attendance and testimony are necessary to the conduct of the investigation; (iv) notify the person receiving the demand of the right to be accompanied by an attorney and any other representative; and (v) describe the general purpose for which the demand is being issued and the general nature of the testimony, including the primary areas of inquiry that will be taken pursuant to the demand.

    Any civil investigative demand that is an express demand for any product of discovery shall not be returned or returnable until twenty-one days after a copy of such demand has been served upon the person from whom the discovery was obtained.

    The date prescribed for the commencement of oral testimony pursuant to a civil investigative demand issued under this article shall be a date that is not less than seven days after the date on which the demand is received, unless the Attorney General determines that exceptional circumstances are present that warrant the commencement of such testimony within a lesser period of time.

    The Attorney General shall not authorize the issuance of more than one civil investigative demand for oral testimony by the same person unless the person requests otherwise or unless the Attorney General, after investigation, notifies that person in writing that an additional demand for oral testimony is necessary.

    History. 2002, c. 842.

    § 8.01-216.12. Civil investigative demands; protected material or information.

    A civil investigative demand issued under this article shall not require the production of any documentary material, the submission of any answers to written interrogatories, or the giving of any oral testimony if such material, answers, or testimony would be protected from disclosure under (i) the standards applicable to subpoenas or subpoenas duces tecum issued by a court of this Commonwealth to aid in a grand jury investigation or (ii) the standards applicable to discovery requests under the Rules of the Supreme Court of Virginia, to the extent that the application of such standards to any such demand is appropriate and consistent with the provisions and purposes of this article.

    Any such demand that is an express demand for any product of discovery supersedes any inconsistent order, rule, or provision of law, other than this section, preventing or restraining disclosure of such product of discovery to any person. Disclosure of any product of discovery pursuant to any such express demand does not constitute a waiver of any right or privilege that the person making such disclosure may be entitled to invoke to resist discovery of trial preparation materials.

    History. 2002, c. 842.

    § 8.01-216.13. Civil investigative demands; service and jurisdiction.

    Any civil investigative demand issued under this article may be served by an investigator, or by any person authorized to serve process on individuals in the Commonwealth.

    Any such demand or any petition filed under this article may be served upon any person who is not found within Virginia in such manner as the Rules of the Supreme Court of Virginia or the Code of Virginia prescribe for service of process outside Virginia. To the extent that the courts of this Commonwealth can assert jurisdiction over any such person consistent with due process, the courts of this Commonwealth shall have the same jurisdiction to take any action respecting compliance with the provisions of this article by any such person that the court would have if such person were personally within the jurisdiction of the court.

    Service of any civil investigative demand issued under this article or of any petition filed under this article may be made upon a partnership, corporation, association, or other legal entity by (i) delivering an executed copy of such demand or petition to any partner, executive officer, managing agent, or general agent of the partnership, corporation, association, or entity, or to any agent authorized by appointment or by law to receive service of process on behalf of such partnership, corporation, association, or entity; (ii) delivering an executed copy of such demand or petition to the principal office or place of business of the partnership, corporation, association, or entity; or (iii) depositing an executed copy of such demand or petition in the United States mail by registered or certified mail, with a return receipt requested, addressed to such partnership, corporation, association, or entity at its principal office or place of business.

    Service of any such demand or petition may be made upon any natural person by (i) delivering an executed copy of such demand or petition to the person, or (ii) depositing an executed copy of such demand or petition in the United States mail by registered or certified mail, with a return receipt requested, addressed to the person at the person’s residence or principal office or place of business.

    A verified return by the individual serving any civil investigative demand issued under this article or any petition filed under this article setting forth the manner of such service shall be proof of service. In the case of service by registered or certified mail, such return shall be accompanied by the return post office receipt of delivery of such demand.

    History. 2002, c. 842.

    § 8.01-216.14. Civil investigative demands; documentary material.

    The production of documentary material in response to a civil investigative demand served under this article shall be made under a sworn certificate, in such form as the demand designates, by (i) in the case of a natural person, the person to whom the demand is directed, or (ii) in the case of a person other than a natural person, a person having knowledge of the facts and circumstances relating to such production and authorized to act on behalf of such person. The certificate shall state that all of the documentary material required by the demand and in the possession, custody, or control of the person to whom the demand is directed has been produced and made available to the investigator identified in the demand.

    Any person upon whom any civil investigative demand for the production of documentary material has been served shall make such material available for inspection and copying to the investigator identified in such demand at the principal place of business of such person, or at such other place as the investigator and the person thereafter may agree and prescribe in writing, or as the court may direct. Such material shall be made available on the return date specified in such demand, or on such later date as the investigator may prescribe in writing. Such person may, upon written agreement between the person and the investigator, substitute copies for originals of all or any part of such material.

    History. 2002, c. 842.

    § 8.01-216.15. Civil investigative demands; interrogatories.

    Each inquiry in a civil investigative demand served under this article shall be answered separately and fully in writing under oath and shall be submitted under a sworn certificate, in such form as the demand designates, by (i) in the case of a natural person, the person to whom the demand is directed, or (ii) in the case of a person other than a natural person, the person or persons responsible for answering each inquiry. If any inquiry is objected to, the reasons for the objection shall be stated in the certificate instead of an answer. The certificate shall state that all information required by the demand and in the possession, custody, control, or knowledge of the person to whom the demand is directed has been submitted. To the extent that any information is not furnished, the information shall be identified and reasons set forth with particularity regarding the reasons why the information was not furnished.

    History. 2002, c. 842.

    § 8.01-216.16. Civil investigative demands; oral examinations.

    1. The examination of any person pursuant to a civil investigative demand for oral testimony served under this article shall be taken before an officer authorized to administer oaths under the laws of this Commonwealth or of the place where the examination is held. The officer before whom the testimony is to be taken shall put the witness on oath and shall, personally or by someone acting under the direction of the officer and in the officer’s presence, record the testimony of the witness. The testimony shall be taken stenographically and shall be transcribed. When the testimony is fully transcribed, the officer before whom the testimony is taken shall promptly transmit a copy of the transcript of the testimony to the Attorney General. This section shall not preclude the taking of testimony by any means authorized by and in a manner consistent with the Rules of the Supreme Court of Virginia.
    2. The investigator conducting the examination shall exclude from the place where the examination is held all persons except the person giving the testimony, the attorney for and any other representative of the person giving the testimony, the attorney for the Commonwealth, any person who may be agreed upon by the attorney for the Commonwealth and the person giving the testimony, the officer before whom the testimony is to be taken, and any court reporter taking such testimony.
    3. The oral testimony of any person taken pursuant to a civil investigative demand served under this article shall be taken in the county or city within which such person resides, is found, or transacts business or in such other place as may be agreed upon by the investigator conducting the examination and such person.
    4. When the testimony is fully transcribed, the investigator or the officer before whom the testimony is taken shall afford the witness, who may be accompanied by counsel, a reasonable opportunity to examine and read the transcript, unless such examination and reading are waived by the witness. Any changes in form or substance that the witness desires to make shall be entered and identified upon the transcript by the officer or the investigator, with a statement of the reasons given by the witness for making such changes. The transcript shall then be signed by the witness, unless the witness in writing waives the signing, is ill, cannot be found, or refuses to sign. If the transcript is not signed by the witness within thirty days after being afforded a reasonable opportunity to examine it, the officer or the investigator shall sign it and state on the record the fact of the waiver, illness, absence of the witness, or the refusal to sign, together with the reasons, if any, given therefor.
    5. The officer before whom the testimony is taken shall certify on the transcript that the witness was sworn by the officer and that the transcript is a true record of the testimony given by the witness, and the officer or investigator shall promptly deliver the transcript, or send the transcript by registered or certified mail, to the Attorney General.
    6. Upon payment of reasonable charges therefor, the investigator shall furnish a copy of the transcript to the witness only, except that the Attorney General may, for good cause, limit such witness to inspection of the official transcript of the witness’ testimony.
    7. Any person compelled to appear for oral testimony under a civil investigative demand may be accompanied, represented, and advised by counsel. Counsel may advise such person, in confidence, with respect to any question asked of such person. Such person or counsel may object on the record to any question, in whole or in part, and shall briefly state for the record the reason for the objection. An objection may be made, received, and entered upon the record when it is claimed that such person is entitled to refuse to answer the question on the grounds of any constitutional or other legal right or privilege. Such person may not otherwise object to or refuse to answer any question, and may not directly or through counsel otherwise interrupt the oral examination. If such person refuses to answer any question, a petition may be filed in the circuit court for an order compelling such person to answer such question. If such person refuses to answer any question on the grounds of the privilege against self-incrimination, the testimony of such person may be compelled in accordance with applicable law.
    8. Any person appearing for oral testimony under a civil investigative demand issued under this article shall be entitled to the same fees and allowances paid to witnesses in the circuit court.

    History. 2002, c. 842.

    § 8.01-216.17. Civil investigative demands; custodian of documents; answers.

    1. The Attorney General shall serve as custodian of documentary material, answers to interrogatories, and transcripts of oral testimony received under this article.
    2. An investigator who receives any documentary material, answers to interrogatories, or transcripts of oral testimony under this section shall transmit them to the Attorney General. The Attorney General shall take physical possession of such material, answers, or transcripts and shall be responsible for the use made of them and for the return of documentary material.
    3. The Attorney General may cause the preparation of such copies of documentary material, answers to interrogatories, or transcripts of oral testimony as may be required for official use by any investigator, or other officer or employee of the Attorney General or employee of the Department of State Police. Such material, answers, and transcripts may be used by any authorized investigator or other officer or employee in connection with the taking of oral testimony under this article.
    4. Except as otherwise provided in this section, no documentary material, answers to interrogatories, or transcripts of oral testimony, or copies thereof, while in the possession of the Attorney General, shall be available for examination by any individual other than an investigator or other officer or employee of the Attorney General or employee of the Department of State Police authorized by the Attorney General. The prohibition on the availability of material, answers, or transcripts shall not apply if consent is given by the person who produced such material, answers, or transcripts, or, in the case of any product of discovery produced pursuant to an express demand for such material, consent is given by the person from whom the discovery was obtained. Nothing in this subsection is intended to prevent disclosure to the General Assembly, including any committee or subcommittee of the General Assembly, or to any other state agency for use by such agency in furtherance of its statutory responsibilities.
    5. While in the possession of the Attorney General and under such reasonable terms and conditions as the Attorney General shall prescribe, (i) documentary material and answers to interrogatories shall be available for examination by the person who produced such material or answers, or by a representative of that person authorized by that person to examine such material and answers, and (ii) transcripts of oral testimony shall be available for examination by the person who produced such testimony or by a representative of that person authorized by that person to examine such transcripts.
    6. Any attorney employed by the Office of the Attorney General designated to appear before any court, grand jury, or state agency in any case or proceeding may use any documentary material, answers to interrogatories, or transcripts of oral testimony in connection with any such case or proceeding as such attorney determines to be required. Upon the completion of any such case or proceeding, such attorney shall return to the custodian any such material, answers, or transcripts so delivered that have not passed into the control of the court, grand jury, or agency through introduction into the record of such case or proceeding.
    7. If any documentary material has been produced by any person in the course of any investigation pursuant to a civil investigative demand under this article, and (i) any case or proceeding before the court or grand jury arising out of such investigation, or any proceeding before any state agency involving such material, has been completed, or (ii) no case or proceeding in which such material may be used has been commenced within a reasonable time after completion of the examination and analysis of all documentary material and other information assembled in the course of such investigation, the Attorney General shall, upon written request of the person who produced such material, return to such person any material, other than copies furnished to the investigator, or made for the Attorney General that has not passed into the control of any court, grand jury, or agency through introduction into the record of such case or proceeding.

    History. 2002, c. 842; 2011, c. 676.

    The 2011 amendments.

    The 2011 amendment by c. 676, in subsection C, deleted “who is authorized for such use by the Attorney General” from the end of the first sentence; and in subsection D, deleted the last sentence, which read: “Disclosure of information to any such other agency shall be allowed only upon application, made by the Attorney General to a circuit court, showing substantial need for the use of the information by such agency in furtherance of its statutory responsibilities.”

    § 8.01-216.18. Civil investigative demands; judicial proceedings for noncompliance.

    1. Whenever any person fails to comply with any civil investigative demand issued under this article, or whenever satisfactory copying or reproduction of any material requested in such demand cannot be done and such person refuses to surrender the material, the Attorney General may file in the appropriate circuit court for the county or city in which such person resides, is found, or transacts business, and serve upon such person a petition for a court order for the enforcement of the civil investigative demand.
    2. Any person who has received a civil investigative demand issued under this article may file, in the circuit court of any county or city within which such person resides, is found, or transacts business, and serve upon the investigator identified in such demand a petition for an order of the court to modify or set aside the demand. In the case of a petition addressed to an express demand for any product of discovery, a petition to modify or set aside such demand may be brought only in the circuit court of the county or city in which the proceeding in which such discovery was obtained is or was last pending. Any petition under this section shall be filed (i) within twenty-one days after the date of service of the civil investigative demand, or at any time before the return date specified in the demand, whichever date is earlier, or (ii) within such longer period as may be prescribed in writing by any investigator identified in the demand.
    3. The petition shall specify each ground upon which the petitioner relies in seeking relief, and may be based upon any failure of the demand to comply with the provisions of this article or upon any constitutional or other legal right or privilege of such person. During the pendency of the petition in the court, the court may stay, as it deems proper, the running of the time allowed for compliance with the demand, in whole or in part, except that the person filing the petition shall comply with any portions of the demand not sought to be modified or set aside.
    4. In the case of any civil investigative demand issued under this article that is an express demand for any product of discovery, the person from whom such discovery was obtained may file, in the circuit court of the county or city in which the proceeding in which such discovery was obtained is or was last pending, and serve upon any investigator identified in the demand and upon the recipient of the demand a petition for a court order to modify or set aside those portions of the demand requiring production of any such product of discovery. Any petition under this subsection shall be filed (i) within twenty-one days after the date of service of the civil investigative demand or at any time before the return date specified in the demand, whichever date is earlier, or (ii) within such longer period as may be prescribed in writing by any investigator identified in the demand.
    5. The petition shall specify each ground upon which the petitioner relies in seeking relief and may be based upon any failure of the demand from which relief is sought to comply with the provisions of this article, or upon any constitutional or other legal right or privilege of the petitioner. During the pendency of the petition, the court may stay, as it deems proper, compliance with the demand and the running of the time allowed for compliance with the demand.
    6. At any time during which any custodian is in custody or control of any documentary material or answers to interrogatories produced, or transcripts of oral testimony given by any person in compliance with any civil investigative demand issued under this article, such person, and in the case of an express demand for any product of discovery, the person from whom such discovery was obtained, may file, in the circuit court of the county or city within which the office of such custodian is situated, and serve upon such custodian a petition for a court order to require the performance by the custodian of any duty imposed upon the custodian by this section. Whenever any petition is filed in any circuit court under this section, the court shall have jurisdiction to hear and determine the matter so presented, and to enter such order or orders as may be required to carry out the provisions of this section. Any final order so entered shall be subject to appeal in the same manner as appeals of other final orders in civil matters. Any disobedience of any final order entered under this section by any court shall be punished as contempt of the court.
    7. Any documentary material, answers to written interrogatories, or oral testimony provided under any civil investigative demand issued under this article shall be exempt from disclosure under the Virginia Administrative Process Act (§ 2.2-4000 et seq.).

    History. 2002, c. 842.

    § 8.01-216.19. Application of the Rules of the Supreme Court.

    The Rules of the Supreme Court of Virginia shall apply to all proceedings under this article, except when those Rules are inconsistent with this article.

    History. 2002, c. 842.

    Article 20. Change of Name.

    § 8.01-217. How name of person may be changed.

    1. Any person desiring to change his own name, or that of his child or ward, may apply therefor to the circuit court of the county or city in which the person whose name is to be changed resides, or if no place of abode exists, such person may apply to any circuit court which shall consider such application if it finds that good cause exists therefor under the circumstances alleged. An incarcerated person may apply to the circuit court of the county or city in which such person is incarcerated. In case of a minor who has no living parent or guardian, the application may be made by his next friend. In case of a minor who has both parents living, the parent who does not join in the application shall be served with reasonable notice of the application pursuant to § 8.01-296 and, should such parent object to the change of name, a hearing shall be held to determine whether the change of name is in the best interest of the minor. It shall not be necessary to effect service upon any parent who files an answer to the application. If, after application is made on behalf of a minor and an ex parte hearing is held thereon, the court finds by clear and convincing evidence that such notice would present a serious threat to the health and safety of the applicant, the court may waive such notice.
    2. Every application shall be under oath and shall include the place of residence of the applicant, the names of both parents, including the maiden name of his mother, the date and place of birth of the applicant, the applicant’s felony conviction record, if any, whether the applicant is a person for whom registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, whether the applicant is presently incarcerated or a probationer with any court, and if the applicant has previously changed his name, his former name or names.
    3. On any such application and hearing, if such be demanded, the court, shall, unless the evidence shows that the change of name is sought for a fraudulent purpose or would otherwise infringe upon the rights of others or, in a case involving a minor, that the change of name is not in the best interest of the minor, order a change of name.
    4. No application shall be accepted by a court for a change of name of a probationer, person for whom registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, or incarcerated person unless the court finds that good cause exists for consideration of such application under the reasons alleged in the application for the requested change of name. If the court accepts the application, the court shall mail or deliver a copy of the application to the attorney for the Commonwealth for the jurisdiction where the application was filed and the attorney for the Commonwealth for any jurisdiction in the Commonwealth where a conviction occurred that resulted in the applicant’s probation, registration with the Sex Offender and Crimes Against Minors Registry pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, or incarceration. The attorney for the Commonwealth where the application was filed shall be entitled to respond and represent the interests of the Commonwealth by filing a response within 30 days after the mailing or delivery of a copy of the application. The court shall conduct a hearing on the application and may order a change of name if, after receiving and considering evidence concerning the circumstances regarding the requested change of name, the court determines that the change of name (i) would not frustrate a legitimate law-enforcement purpose, (ii) is not sought for a fraudulent purpose, and (iii) would not otherwise infringe upon the rights of others. Such order shall contain written findings stating the court’s basis for granting the order.
    5. The provisions of subsection D are jurisdictional and any order granting a change of name pursuant to subsection D that fails to comply with any provision of subsection D is void ab initio. The attorney for the Commonwealth for the jurisdiction where such an application was filed has the authority to bring an independent action at any time to have such order declared void. If the attorney for the Commonwealth brings an independent action to have the order declared void, notice of the action shall be served upon the person who was granted a change of name who shall have 30 days after service to respond. If the person whose name was changed files a response objecting to having the order declared void, the court shall hold a hearing. If an order granting a change of name is declared void pursuant to this subsection, or if a person is convicted of perjury pursuant to § 18.2-434 for unlawfully changing his name pursuant to § 18.2-504.1 based on conduct that violates this section, the clerk of the court entering the order or the order of conviction shall transmit a certified copy of the order to (i) the State Registrar of Vital Records, (ii) the Department of Motor Vehicles, (iii) the State Board of Elections, (iv) the Central Criminal Records Exchange, and (v) any agency or department of the Commonwealth that has issued a license to the person where such license utilizes the person’s changed name, if known to the court and identified in the court order.
    6. The order shall contain no identifying information other than the applicant’s former name or names, new name, and current address. The clerk of the court shall spread the order upon the current deed book in his office, index it in both the old and new names, and transmit a certified copy of the order and the application to the State Registrar of Vital Records and the Central Criminal Records Exchange. Transmittal of a copy of the order and the application to the State Registrar of Vital Records and the Central Criminal Records Exchange shall not be required of a person who changed his or her former name by reason of marriage and who makes application to resume a former name pursuant to § 20-121.4 .
    7. If the applicant shall show cause to believe that in the event his change of name should become a public record, a serious threat to the health or safety of the applicant or his immediate family would exist, the chief judge of the circuit court may waive the requirement that the application be under oath or the court may order the record sealed and direct the clerk not to spread and index any orders entered in the cause, and a certified copy shall not be transmitted to the State Registrar of Vital Records or the Central Criminal Records Exchange. At such time as a name change order is received by the State Registrar of Vital Records, for a person born in the Commonwealth, together with a proper request and payment of required fees, the Registrar shall issue certifications of the amended birth record which do not reveal the former name or names of the applicant unless so ordered by a court of competent jurisdiction. Such certifications shall not be marked “amended” and show the effective date as provided in § 32.1-272 . Such order shall set forth the date and place of birth of the person whose name is changed, the full names of his parents, including the maiden name of the mother and, if such person has previously changed his name, his former name or names.

    History. Code 1950, § 8-577.1; 1956, c. 402; 1973, c. 401; 1976, c. 115; 1977, cc. 457, 617; 1979, cc. 599, 603, 612; 1980, cc. 448, 455; 1981, c. 297; 1983, c. 335; 1985, c. 483; 1991, c. 144; 2003, c. 258; 2005, c. 579; 2014, c. 232; 2015, c. 631.

    REVISERS’ NOTE

    Changes to former § 8-577.1 include: (1) notice to the parent not joining in the application shall be served rather than mailed and (2) the penal provision has been transferred to Title 18.2.

    Cross references.

    As to constitutional authority of General Assembly to confer on courts power to change names, see Va. Const., Art. IV, § 14.

    As to penalty for unlawful change of name, see § 18.2-504.1 .

    As to change of name of adopted minor, see § 63.2-1209.

    As to deeming of an entry of a final order of adoption of certain persons over the age of 18 as meeting the requirements of § 8.01-217 , see § 63.2-1243.

    Editor’s note.

    Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the Code Commission has given effect, in § 8.01-217 as set out above, to the amendment to former § 8-577.1, corresponding to this section, in Acts 1977, c. 457. The amendment inserted “without regard to sex” in the second sentence of the second paragraph and added the present third and fourth sentences of the second paragraph.

    Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, “only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth.” The funding was not provided.

    The 2003 amendments.

    The 2003 amendment by c. 258 divided the former two paragraphs of the section into present subsections A through D; and in subsection C, substituted “a case involving” for “case of,” divided a former sentence into the present first and third sentences by deleting “and” following “order a change of name,” inserted the present second sentence, and inserted “of the order and the application” in the third and fourth sentences.

    The 2005 amendments.

    The 2005 amendment by c. 579, in subsection A, inserted “pursuant to § 8.01-296 ” preceding “and, should such parent” and added the fifth sentence.

    The 2014 amendments.

    The 2014 amendment by c. 232 in subsection A deleted the second sentence which read “Applications of probationers and incarcerated persons may be accepted if the court finds that good cause exists for such application.”; in subsection B inserted “whether the applicant is a person for whom registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1”; added subsections D and E, and designated the former second paragraph of subsection C as subsection F and former subsection D as subsection G.

    The 2015 amendments.

    The 2015 amendment by c. 631 in subsection E, inserted the clause (i) through (v) designations and added “if known to the court and identified in the court order” at the end; in subsection G, substituted “a certified copy shall not be transmitted” for “shall not transmit a certified copy” and “At such time as a name change order is received” for “Upon receipt of such order.”

    Law Review.

    For comment on married women’s names, see 11 U. Rich. L. Rev. 121 (1976).

    For survey of Virginia law on domestic relations for the year 1975-1976, see 62 Va. L. Rev. 1431 (1976).

    For survey of Virginia domestic relations law for the year 1977-1978, see 64 Va. L. Rev. 1439 (1978).

    For survey of Virginia law on domestic relations for the year 1978-1979, see 66 Va. L. Rev. 281 (1980).

    For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

    For note on the rights of parents in their children’s surnames, see 70 Va. L. Rev. 1303 (1984).

    Michie’s Jurisprudence.

    For related discussion, see 4C M.J. Constitutional Law, § 77.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Provisions as to incarcerated persons violate First Amendment. —

    This section violated U.S. Const., Amend. 1, insofar as it withheld legal recognition of a prisoner’s religiously motivated change of name. Barrett v. Virginia, 689 F.2d 498, 1982 U.S. App. LEXIS 25499 (4th Cir. 1982).

    And are not justified by considerations of prison discipline. —

    The categorical refusal, embodied in this section, to accord legal recognition to religious names adopted by incarcerated persons was not reasonably and substantially justified by considerations of prison discipline and order. In this respect, therefore, this section offended against the free exercise of religion guaranteed by U.S. Const., Amend. 1. Barrett v. Virginia, 689 F.2d 498, 1982 U.S. App. LEXIS 25499 (4th Cir. 1982).

    Inmates. —

    Trial court did not abuse its discretion in denying an inmate’s petition to change his name. The Supreme Court could not say that the basis articulated by the trial court for denying the petition, i.e., that the application would frustrate a legitimate law-enforcement purpose and thus the provisions of subsection D of § 8.01-217 were not satisfied, fell outside the scope of its broad discretion. Jordan v. Commonwealth, 295 Va. 70 , 809 S.E.2d 622, 2018 Va. LEXIS 10 (2018).

    Gender change. —

    Trial court abused its discretion in denying an inmate’s application for a name change and in holding that good cause did not exist because the inmate had been diagnosed with Gender Identity Disorder and was transitioning from the male gender to the female gender, the General Assembly had already recognized that a shift in a person’s gender was a valid reason to change his or her name and to amend that person’s vital records, and there was nothing in the record to indicate that the inmate’s name change was sought with frivolous intentions or that the name change would have any negative impact on the community. In re Brown, 289 Va. 343 , 770 S.E.2d 494, 2015 Va. LEXIS 54 (2015).

    Transgender inmate’s application for a name change contained the information required by subsection B of § 8.01-217 and articulated legitimate, nonfrivolous reasons supporting the requested name change. The circuit court abused its discretion by finding that good cause did not exist for consideration of the inmate’s application and by employing an inappropriate procedure to make that determination. Leonard v. Commonwealth, 296 Va. 479 , 821 S.E.2d 551, 2018 Va. LEXIS 184 (2018).

    Circuit court’s abuse of discretion in denying name change application. —

    Circuit court abused its discretion when it implicitly found that the good cause necessary under subsection A of § 8.01-217 for further consideration of an inmate’s application for a religion based name change was lacking; the finding was not supported by the record, and a remand was required for further consideration of the application under subsection C of § 8.01-217 . Stephens v. Commonwealth, 274 Va. 157 , 645 S.E.2d 276, 2007 Va. LEXIS 75 (2007).

    Circuit court erred in dismissing an inmate’s application to change his name for lack of good cause without a hearing because the inmate’s alleged religious basis for the change of name constituted good cause for the application to be accepted for further review, prior convictions, standing alone, were not a proper reason to refuse to consider the application, the only factor statutorily relevant to the determination of the adequacy of the inmate’s reason for filing the application was the reason alleged by the inmate in the application, and it could not be discerned, without evidence, whether the inmate’s alleged religious conversion was sincere and that a name change was actually a “tenet” of the “Native American” faith. In re Dennis, 294 Va. 1 , 802 S.E.2d 811, 2017 Va. LEXIS 105 (2017).

    Insufficient evidence of forgery of a public record. —

    Sufficient evidence did not support defendant’s forgery of a public record convictions because the evidence did not show defendant completed Department of Motor Vehicles applications using a false or fictitious name, as, despite defendant’s failure to change defendant’s name in Virginia pursuant to statutory procedures, defendant testified defendant changed defendant’s name in Panama and presented substantial supporting documentary evidence in the form of a United States passport in the name defendant used to complete the applications, and no evidence showed the passport was invalid. Thompson v. Commonwealth, 2019 Va. App. LEXIS 80 (Va. Ct. App. Apr. 9, 2019).

    B.Minors.

    Mother’s petition to change child’s name over father’s objection. —

    This section requires that a parent, who seeks to change a child’s surname over the objection of the other parent, demonstrate with satisfactory evidence that the requested name change is in the child’s best interest. Generally, a change will be ordered only if: (1) the father has abandoned the natural ties ordinarily existing between parent and child, (2) the father has engaged in misconduct sufficient to embarrass the child in the continued use of the father’s name, (3) the child otherwise will suffer substantial detriment by continuing to bear the father’s name or (4) the child is of sufficient age and discretion to make an intelligent choice and he desires that his name be changed. But, a change of name will not be authorized against the father’s objection merely to save the mother and child minor inconvenience or embarrassment. May v. Grandy, 259 Va. 629 , 528 S.E.2d 105, 2000 Va. LEXIS 62 (2000).

    Burden of proof. —

    Where there was no evidence that a child would suffer any form of detriment by continuing to use the mother’s surname and the mother had not failed to care for the child or engaged in misconduct sufficient to embarrass the child in the continued use of the mother’s surname, a father did not offer sufficient evidence to show that a name change was in a minor child’s best interest; as a result, the trial court abused its discretion by ordering the change in the child’s surname. Spero v. Heath, 267 Va. 477 , 593 S.E.2d 239, 2004 Va. LEXIS 30 (2004).

    Best interest controlling standard. —

    In the context of a name change for a child, the controlling standard remains the same — that the petitioning party must prove by satisfactory evidence that the change is in the child’s best interest, and the trial court did not err in relying on case law to determine whether the name change in this case was in the child’s best interest. McMahon v. Wirick, 288 Va. 197 , 762 S.E.2d 781, 2014 Va. LEXIS 120 (2014).

    Burden of proving change in children’s best interest. —

    Under this section, where a parent seeks to change the surname of a child, the burden is upon the petitioning parent, under the circumstances, to prove by satisfactory evidence that the change is in the child’s best interests. Rowland v. Shurbutt, 259 Va. 305 , 525 S.E.2d 917, 2000 Va. LEXIS 50 (2000).

    No substantial detriment to child. —

    Evidence presented by the father involved the inconveniences and embarrassment that he felt as a result of having a different surname, and he failed to produce any evidence that the child suffered any such embarrassment or that she suffered substantial detriment; the trial court did not abuse its discretion in denying the father’s name change petition. McMahon v. Wirick, 288 Va. 197 , 762 S.E.2d 781, 2014 Va. LEXIS 120 (2014).

    An unwed parent, as well as a married parent, has standing to object to a minor child’s change of name. Beyah v. Shelton, 231 Va. 432 , 344 S.E.2d 909, 1986 Va. LEXIS 210 (1986).

    Change from name of father to that of stepfather held not in child’s best interest. —

    Evidence failed to support the trial court’s finding that the change of name of four-year-old child from that of her father, who had never married her mother, to that of her stepfather was in the child’s best interest, where the father visited his daughter on a regular basis, made regular support payments, and had a close parental relationship with her, and where there was no evidence that the father had engaged in any misconduct that would embarrass or otherwise harm his daughter if she continued using his name. Beyah v. Shelton, 231 Va. 432 , 344 S.E.2d 909, 1986 Va. LEXIS 210 (1986).

    Where neither party shares a surname with child. —

    In the context of a name change of a minor, where, as here, neither party shares a surname with the child, any potential damage would be negligible, and thus the relevance of sharing a surname is necessarily diminished and was not dispositive of the present case. McMahon v. Wirick, 288 Va. 197 , 762 S.E.2d 781, 2014 Va. LEXIS 120 (2014).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Common law. —

    Under the common law, a person is free to adopt any name if it is not done for a fraudulent purpose or in infringement upon the rights of others. In re Strikwerda, 216 Va. 470 , 220 S.E.2d 245, 1975 Va. LEXIS 316 (1975); In re Miller, 218 Va. 939 , 243 S.E.2d 464, 1978 Va. LEXIS 250 (1978).

    Section implements constitutional mandate. —

    Virginia Const., Art. IV, § 14 provides that “the General Assembly shall confer on the courts power to . . . change the names of persons.” The General Assembly has carried out its constitutional mandate by the enactment of this section. In re Strikwerda, 216 Va. 470 , 220 S.E.2d 245, 1975 Va. LEXIS 316 (1975).

    There is nothing in this section, or in the common law, requiring a showing of a compelling need to justify a change of name. Such a requirement would be inconsistent with the common-law principle that names may be changed in the absence of a fraudulent purpose. In re Miller, 218 Va. 939 , 243 S.E.2d 464, 1978 Va. LEXIS 250 (1978).

    Notice to creditors is not an express requirement under this section. In re Miller, 218 Va. 939 , 243 S.E.2d 464, 1978 Va. LEXIS 250 (1978).

    Relief under § 59.1-69 et seq., not co-extensive with that under this section. —

    The relief afforded by § 59.1-69 et seq., relating to transacting business under an assumed name, is not co-extensive with that afforded by this section. In re Miller, 218 Va. 939 , 243 S.E.2d 464, 1978 Va. LEXIS 250 (1978).

    Section provides no effective procedure for challenging petitioner’s evidence that the petition was not filed for an unlawful purpose. This is a statutory omission that may deserve consideration by the General Assembly. In re Strikwerda, 216 Va. 470 , 220 S.E.2d 245, 1975 Va. LEXIS 316 (1975).

    Inclusion in this section of criminal penalties for one who unlawfully “changes his name or assumes another name” suggests that, in the absence of an illegal purpose, a change of name petition should be granted. In re Strikwerda, 216 Va. 470 , 220 S.E.2d 245, 1975 Va. LEXIS 316 (1975).

    B.Minors.

    Continued use of divorced father’s name. —

    Where the mother offered only slight evidence showing nothing more than “minor inconvenience or embarrassment,” to support her application for change of names of her children, and, on the other hand, the evidence was overwhelming that the father had not abandoned the natural ties with his children, that he had not engaged in misconduct which would embarrass the children in the continued use of his name, and that otherwise it would not be detrimental to the children to continue to bear the father’s name, in these circumstances, the finding is not warranted that a change of names would serve the children’s best interest. Flowers v. Cain, 218 Va. 234 , 237 S.E.2d 111, 1977 Va. LEXIS 184 (1977).

    Change of child’s name where divorced father objects. —

    When a divorce occurs and the mother is awarded custody, usually it is in the child’s best interest to maintain and encourage rather than weaken the relationship between father and child. Generally, a name change of a child will not be ordered over the father’s objection unless: (a) The father has abandoned the natural ties ordinarily existing between parent and child; (b) he has engaged in misconduct sufficient to embarrass the child; (c) the child will suffer substantial detriment in continued use of father’s name; or (d) the child is of sufficient age and discretion to make an intelligent choice and desires to change the name. Flowers v. Cain, 218 Va. 234 , 237 S.E.2d 111, 1977 Va. LEXIS 184 (1977).

    In the face of an objection by the natural father to the changing of his children’s names and the absence of substantial reasons, the change should not be ordered. Flowers v. Cain, 218 Va. 234 , 237 S.E.2d 111, 1977 Va. LEXIS 184 (1977).

    Burden of proving change in children’s best interest. —

    In a hearing on the objection by a natural father to the changing of his children’s names, the burden was upon the mother to prove by satisfactory evidence that a change in the children’s names would be in their best interest. Flowers v. Cain, 218 Va. 234 , 237 S.E.2d 111, 1977 Va. LEXIS 184 (1977) (decided prior to 1979 amendments).

    Six and seven-year old children held too young to make intelligent choice. —

    Where one child was only six years old and the other only seven at the time of the hearing on the objection of their natural father to changing their names, neither child was capable of making an intelligent choice in the matter of his name. Flowers v. Cain, 218 Va. 234 , 237 S.E.2d 111, 1977 Va. LEXIS 184 (1977).

    C.Married Women.

    Although a married woman customarily assumes her husband’s surname, there is no statute requiring her to do so. In re Miller, 218 Va. 939 , 243 S.E.2d 464, 1978 Va. LEXIS 250 (1978).

    Married woman not prohibited from resuming maiden name. —

    There is no conflict or inconsistency between this section and former § 20-107 . Nothing in the wording of this section purports to exclude from its provisions a married woman who desires to change her name back to her maiden name. Nothing in the wording of former § 20-107 indicates that this is intended to be the exclusive statutory authority for such a change of name. There is no statute that prohibits a married woman from resuming her maiden name. In re Strikwerda, 216 Va. 470 , 220 S.E.2d 245, 1975 Va. LEXIS 316 (1975).

    This section did not change the common-law principles to be considered in petitions filed by married women seeking to resume their maiden names. In re Miller, 218 Va. 939 , 243 S.E.2d 464, 1978 Va. LEXIS 250 (1978).

    When a married woman resumes her maiden name, the possibility of damage to a creditor to whom she and her husband are jointly obligated is no greater than when a single woman marries and takes the surname of her husband, or when a divorced woman or a widow remarries and takes the surname of the husband. This inevitable confusion is not sufficient reason for denying an application for a change of name not sought for a fraudulent purpose. In re Miller, 218 Va. 939 , 243 S.E.2d 464, 1978 Va. LEXIS 250 (1978).

    A change in the name would not have a disruptive effect on family life. To reason that a name change of the mother would have an embarrassing effect on her children is pure speculation. In re Miller, 218 Va. 939 , 243 S.E.2d 464, 1978 Va. LEXIS 250 (1978).

    CIRCUIT COURT OPINIONS

    “Good cause.” —

    “Good cause” under § 8.01-217 in the context of prisoner petitions to accommodate gender dysphoria rests within the discretion of the court. In re Champion, 72 Va. Cir. 588, 2004 Va. Cir. LEXIS 385 (Lee County Mar. 25, 2004).

    Change not sought for a fraudulent purpose. —

    31-year old inmate was entitled to change his name because the requested change of name, including inmate’s last name, was not sought for a fraudulent purpose, and would not otherwise infringe upon the rights of others inasmuch as the inmate had identified as female since the age of five, was diagnosed with Gender Identity Disorder, received hormone treatments both before and after his incarceration, continued in the transition path through the Medical College of Virginia, and his request to change his last name was based upon a wish to take the last name of a significant other with whom he had been in a committed relationship prior to incarceration. In re Elliott, 100 Va. Cir. 288, 2018 Va. Cir. LEXIS 613 (Chesapeake Nov. 7, 2018).

    Name change denied inmate with sex offense convictions. —

    Inmate’s request for a name change pursuant to § 8.01-217 was denied, as the inmate’s criminal record contained several convictions for sex offenses that required registration with law-enforcement agencies, and it appeared that granting the requested name change would serve only to frustrate the purpose of the registration requirements. In re Champion, 72 Va. Cir. 588, 2004 Va. Cir. LEXIS 385 (Lee County Mar. 25, 2004).

    Name change of child granted. —

    Mother’s petition for the name change of her minor child to the mother’s married name hyphenated and then the father’s last name was granted as it was in the child’s best interests because the mother did not seek to exclude the father’s name, but rather her own maiden name, from the child’s last name to the inclusion of the stepfather’s name, the mother’s married name; the child appeared to be suffering substantial detriment by bearing the mother’s maiden name; while the child was only seven, she obsessed about the difference in her last name from that of her siblings and desired to match the other members of her family; and the child’s conduct expressed a clear interest in maintaining the father’s name alongside the mother’s married name. In re A.V.T-A, 100 Va. Cir. 408, 2018 Va. Cir. LEXIS 698 (Fairfax County Dec. 27, 2018).

    Name change of child denied. —

    Father failed to persuade the court that a name change based solely on societal tradition was in the child’s best interests since the child had its mother’s last name, lived with the mother, and had limited visitation with the father. In re Byrd, 56 Va. Cir. 540, 2001 Va. Cir. LEXIS 499 (Suffolk Nov. 28, 2001).

    Article 21. Miscellaneous Provisions.

    § 8.01-218. Replevin abolished.

    No action of replevin shall be hereafter brought.

    History. Code 1950, § 8-647; 1977, c. 617.

    Cross references.

    For the statutory provisions relating to detinue, see §§ 8.01-114 through 8.01-123 .

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Detinue and Replevin, §§ 1, 20.

    § 8.01-219. Effect of judgment in trover.

    A judgment for the plaintiff in an action of trover shall not operate to transfer the title to the property converted unless and until such judgment has been satisfied.

    History. Code 1950, § 8-648; 1977, c. 617.

    Cross references.

    For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

    Law Review.

    For article on the abolition of the forms of action in Virginia, see 17 U. Rich. L. Rev. 273 (1983).

    § 8.01-219.1. Responsibility of possessor of real property for harm to trespasser.

    1. A possessor of real property, including an owner, lessee, or other lawful occupant, owes no duty of care to a trespasser except in those circumstances where a common-law right of action, statutory right of action, or judicial exception existed as of July 1, 2013.
    2. This section does not affect any immunities from or defenses to liability established by another section of the Code or available at common law to which a possessor of real property may be entitled.

    History. 2013, c. 217.

    Editor’s note.

    At the direction of the Virginia Code Commission, “common-law” was substituted for “common law” in subsection A.

    § 8.01-220. Action for alienation of affection, breach of promise, criminal conversation and seduction abolished.

    1. Notwithstanding any other provision of law to the contrary, no civil action shall lie or be maintained in this Commonwealth for alienation of affection, breach of promise to marry, or criminal conversation upon which a cause of action arose or occurred on or after June 28, 1968.
    2. No civil action for seduction shall lie or be maintained where the cause of action arose or accrued on or after July 1, 1974.

    History. Code 1950, § 20-37.2 ; 1968, c. 716; 1974, c. 606; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-649 (Seduction) has been deleted. See § 8.01-220 B.

    Michie’s Jurisprudence.

    For related discussion, see 3A M.J. Breach of Promise of Marriage, § 1.

    CASE NOTES

    Action for alienation of affection of son brought by father. —

    For case assuming, for purposes of the case, that an action for alienation of the affection of a son brought by a father has been abrogated by the statute, or never existed in the first place, see Raftery v. Scott, 756 F.2d 335, 1985 U.S. App. LEXIS 31592 (4th Cir. 1985).

    As to distinctions between intentional infliction of emotional distress and alienation of affection, see Raftery v. Scott, 756 F.2d 335, 1985 U.S. App. LEXIS 31592 (4th Cir. 1985).

    Detinue actions not barred. —

    Heart balm statute does not bar an action in detinue for recovery of an engagement ring following the breakoff of the engagement; the statute bars three specific civil actions: alienation of affection, breach of promise to marry, and criminal conversation, but the statute says nothing about the law of conditional gifts, and an action for recovery of property exchanged in contemplation of marriage is still determined by existing law and common-law principle. McGrath v. Dockendorf, 292 Va. 834 , 793 S.E.2d 336, 2016 Va. LEXIS 187 (2016).

    Appellee gave appellant a gift of a ring, which was a conditional gift, and when the condition upon which the gift was made did not occur, appellee could institute an action in detinue to recover the ring or its value; the trial court did not err in finding that the statute did not bar the action and in ordering either a return of the ring or the entry judgment for the amount of the ring. McGrath v. Dockendorf, 292 Va. 834 , 793 S.E.2d 336, 2016 Va. LEXIS 187 (2016).

    Tortious interference with parental rights. —

    General Assembly’s statutory abolition of the cause of action for alienation of affection pursuant to § 8.01-220 did not preclude a recognition of a cause of action for tortious interference with parental rights, as they were distinct causes of action with separate elements. Wyatt v. McDermott, 283 Va. 685 , 725 S.E.2d 555, 2012 Va. LEXIS 92 (2012).

    Action for breach of social worker’s professional standard of care. —

    Because a husband alleged facts constituting breaches of a social worker’s professional standard of care in addition to ones alleging alienation of affection, the malpractice claims were not barred by § 8.01-220 ; therefore, it was error to dismiss the entire case by sustaining the social worker’s demurrer. Doe v. Zwelling, 270 Va. 594 , 620 S.E.2d 750, 2005 Va. LEXIS 90 (2005).

    Name assigned to conduct not dispositive. —

    When the general assembly enacted this section, it manifested its intent to abolish common law actions seeking damages for a particular type of conduct, regardless of the name that a plaintiff assigns to that conduct. McDermott v. Reynolds, 260 Va. 98 , 530 S.E.2d 902, 2000 Va. LEXIS 90 (2000).

    Emotional distress claim based on adultery barred. —

    Where the essential basis of the plaintiff’s claim was that the defendant had an adulterous relationship with the plaintiff’s wife, which he continued in an open and notorious manner after being confronted by the plaintiff, this alleged conduct was precisely the type of conduct that the general assembly intended to exclude from civil liability when it enacted this section and the fact that the plaintiff labeled his claim as intentional infliction of emotional distress and recited the elements of that tort in support of his action did not shield the action from the statutory bar. McDermott v. Reynolds, 260 Va. 98 , 530 S.E.2d 902, 2000 Va. LEXIS 90 (2000).

    CIRCUIT COURT OPINIONS

    Will contest based on alleged marriage promise to decedent. —

    Even assuming the executor made a fraudulent marriage promise to the decedent, who changed her will in his favor, this could not be a basis for undue influence, as Virginia did not allow recovery for breach of promises to marry. Pierce v. Anderson, 63 Va. Cir. 207, 2003 Va. Cir. LEXIS 203 (Fairfax County Oct. 6, 2003).

    Name assigned to conduct not dispositive. —

    Even though plaintiff’s pleadings used language relating to conditional gifts, his action for the return of a car given to defendant based on a promise to marry was invalid in substance because lawsuits based on a breach of a promise to marry were prohibited. Holmburg v. Ferrell, 69 Va. Cir. 348, 2005 Va. Cir. LEXIS 359 (Salem Dec. 5, 2005).

    Action for return of engagement ring. —

    When a fiance sued his former fiancee for return of an engagement ring he gave her, or its value, his action was barred by § 8.01-220 because he sought damages incurred from a breach of a promise to marry, and actions for breach of promise to marry were abrogated by § 8.01-220 . Georgalas v. Kilgore, 73 Va. Cir. 34, 2006 Va. Cir. LEXIS 292 (Newport News Dec. 22, 2006).

    When a fiance claimed that his suit against his former fiancee for return of the engagement ring he gave her, or its value, was not barred by § 8.01-220 because he merely sought to enforce the return of a conditional gift when the condition was not met, but § 8.01-220 barred his claim because the basis for the condition of the conditional gift was void as against public policy. Georgalas v. Kilgore, 73 Va. Cir. 34, 2006 Va. Cir. LEXIS 292 (Newport News Dec. 22, 2006).

    Action for fraud failed. —

    Plaintiff’s claims of actual and constructive fraud failed because allegations that plaintiff had conveyed a joint interest in real property to defendant based upon his promise to marry her and that she executed a deed of trust lien against the jointly owned real estate based upon defendant’s representation that he was single, that he intended to marry plaintiff, that he was in love with plaintiff and that he was financially solvent, were nothing more than allegations of breach of a contract to marry, which was no longer a valid cause of action. Whalen v. Rutherford, 86 Va. Cir. 560, 2011 Va. Cir. LEXIS 277 (Nelson County Nov. 16, 2011).

    This section did not bar a husband’s defamation action. —

    Even though husband sought damages for injury done to his marriage, where he alleged that a pastor made defamatory remarks about the husband to his wife, he sufficiently alleged facts to state a cause of action for defamation per se that was not barred by § 8.01-220 . The tort of defamation was intended to protect an individual’s uninterrupted entitlement to enjoyment of his reputation, and the husband had alleged an injury to his reputation. Cuthrell v. McKeller, 73 Va. Cir. 386, 2007 Va. Cir. LEXIS 205 (Norfolk June 28, 2007).

    § 8.01-220.1. Defense of interspousal immunity abolished as to certain causes of action arising on or after July 1, 1981.

    The common-law defense of interspousal immunity in tort is abolished and shall not constitute a valid defense to any such cause of action arising on or after July 1, 1981.

    History. 1981, c. 451.

    Law Review.

    For a re-examination of sovereign tort immunity in Virginia, see 15 U. Rich. L. Rev. 247 (1981).

    For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

    For a comment on the legislative abrogation of interspousal immunity in Virginia, see 15 U. Rich. L. Rev. 939 (1981).

    For note, “Toward a More Balanced Treatment of the Negligent Transmission of Sexually Transmitted Diseases and Aids, see 12 Geo. Mason. L. Rev. 481 (2003).

    Michie’s Jurisprudence.

    For related discussion, see 9B M.J. Husband and Wife, § 92.

    CASE NOTES

    Action brought within federal admiralty jurisdiction. —

    Virginia law with respect to interspousal immunity in tort held inapplicable in action brought within federal admiralty jurisdiction for wife’s injuries sustained allegedly as result of husband’s negligent maintenance of pleasure boat. See Byrd v. Byrd, 657 F.2d 615, 1981 U.S. App. LEXIS 18233 (4th Cir. 1981).

    § 8.01-220.1:1. Civil immunity for officers, partners, members, managers, trustees and directors of certain tax exempt organizations.

    1. Directors, partners, members, managers, trustees and officers of organizations exempt from income taxation under § 501(c) or § 528 of the Internal Revenue Code who serve without compensation shall be immune from civil liability for acts taken in their capacities as officers, partners, members, managers, trustees or directors of such organizations.
    2. In any proceeding against a director, partner, member, manager, trustee or officer of an organization exempt from income taxation under § 501(c) or § 528 of the Internal Revenue Code who receives compensation, the damages assessed for acts taken in his capacity as an officer, partner, member, manager, trustee or director and arising out of a single transaction, occurrence or course of conduct shall not exceed the amount of compensation received by the officer, partner, member, manager, trustee or director during the 12 months immediately preceding the act or omission for which liability was imposed. As used herein “compensation” shall mean payment for services over and above per diem and expenses.
    3. The liability of an officer, partner, member, manager, trustee or director shall not be limited as provided in this section if the officer, partner, member, manager, trustee or director engaged in willful misconduct or a knowing violation of the criminal law or if liability derives from the operation of a motor vehicle, or from the violation of a fiduciary obligation imposed during the period of declarant control by § 55.1-1943 .
    4. The immunity provided by this section shall survive any termination, cancellation, or other discontinuance of the organization.

    History. 1987, c. 637; 1988, c. 566; 2005, c. 255; 2011, cc. 693, 704.

    Editor’s note.

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “55.1-1943” for “§ 55-79.74.”

    The 2005 amendments.

    The 2005 amendment by c. 255 inserted “partners, members, managers” in two places in subsection A, “partner, member, manager” in three places in subsection B, “partner, member, manager” in two places in subsection C, and made a minor stylistic change.

    The 2011 amendments.

    The 2011 amendments by cc. 693 and 704 are identical, and added subsection D.

    Law Review.

    For 1987 survey of Virginia business and corporate law, see 21 U. Rich. L. Rev. 645 (1987).

    CIRCUIT COURT OPINIONS

    Willful conduct. —

    Church member’s allegations of willful conduct by a church’s deacons were sufficient to overcome their special pleas under subsection A of § 8.01-220.1:1 .Doe v. Harris, 2001 Va. Cir. LEXIS 529 (Amherst County Apr. 11, 2001).

    § 8.01-220.1:2. Civil immunity for teachers under certain circumstances.

    1. Any teacher employed by a local school board in the Commonwealth shall not be liable for any civil damages for any acts or omissions resulting from the supervision, care or discipline of students when such acts or omissions are within such teacher’s scope of employment and are taken in good faith in the course of supervision, care or discipline of students, unless such acts or omissions were the result of gross negligence or willful misconduct.
    2. No school employee or school volunteer shall be liable for any civil damages arising from the prompt good faith reporting of alleged acts of bullying or crimes against others to the appropriate school official in compliance with §§ 22.1-279.6 and 22.1-291.4 and specified procedures.
    3. This section shall not be construed to limit, withdraw, or overturn any defense or immunity already existing in statutory or common law, to affect any claim occurring prior to the effective date of this law, or to prohibit any person subject to bullying or a criminal act from seeking redress under any other provision of law.

    History. 1997, cc. 349, 879; 2005, c. 462; 2013, c. 575.

    The 2005 amendments.

    The 2005 amendment by c. 462 inserted present subsection B and redesignated former subsection B as present subsection C; and added “or to prohibit any person subject to bullying or a criminal act from seeking redress under any other provision of law” to the end of subsection C.

    The 2013 amendments.

    The 2013 amendment by c. 575 inserted “§§ 22.1-279.6 and 22.1-291.4 and” in subsection B.

    Law Review.

    For annual survey of Virginia law article, “Local Government Law,” see 47 U. Rich. L. Rev. 257 (2012).

    For Comment, “Spelling out LGBT: Enumerating Sexual Orientation in Virginia’s Anti-Bullying Law,” see 47 U. Rich. L. Rev. 1373 (2013).

    For annual survey article, “Education Law,” see 48 U. Rich. L. Rev. 103 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 16 M.J. Religious Societies, § 11.

    CASE NOTES

    Not applicable to assistant principal. —

    High school assistant principal was not entitled to immunity under subsection A of § 8.01-220.1:2 from a student’s simple negligence personal injury action, arising from a fight with another student, as the principal was not a “teacher” within that statutory provision; his occupation was not to instruct at an educational institution, but to lead at the institution. Burns v. Gagnon, 283 Va. 657 , 727 S.E.2d 634, 2012 Va. LEXIS 93 (2012).

    High school assistant principal was not entitled to immunity under subsection B of § 8.01-220.1:2 from a student’s simple negligence personal injury action, arising from a fight with another student, as the principal was not sued because he reported an alleged act of bullying or crime against another to the appropriate school official; rather, he failed to respond to such a report. Burns v. Gagnon, 283 Va. 657 , 727 S.E.2d 634, 2012 Va. LEXIS 93 (2012).

    § 8.01-220.1:3. Immunity for members of church, synagogue or religious body.

    No member of any church, synagogue or religious body shall be liable in tort or contract for the actions of any officer, employee, leader, or other member of such church, synagogue or religious body solely because of his membership in such church, synagogue or religious body. Nothing in this section shall prevent any person from being held liable for his own actions.

    History. 1997, c. 480.

    The number of this section, § 8.01-220.1:3 , was assigned by the Code Commission, the number in the original enactment having been § 8.01-220.1:2 .

    CIRCUIT COURT OPINIONS

    Willful conduct by church deacons. —

    Church member’s allegations of willful conduct by a church’s deacons were sufficient to overcome their special pleas under § 8.01-220.1:3 .Doe v. Harris, 2001 Va. Cir. LEXIS 529 (Amherst County Apr. 11, 2001).

    § 8.01-220.1:4. Civil immunity for officers and directors of certain nonprofit organizations.

    1. Directors and officers of any entity created to ensure the implementation in the Commonwealth of a national tobacco trust established to provide payments to tobacco growers and tobacco quota owners to ameliorate adverse economic consequences resulting from a national settlement of states’ claims against tobacco manufacturers shall be immune from civil liability for acts taken in their capacities as officers or directors of such entities.
    2. The liability of an officer or director shall not be limited as provided in this section if the officer or director was grossly negligent or engaged in willful misconduct or a knowing violation of the criminal law.

    History. 2000, c. 1048.

    Editor’s note.

    Acts 2000, c. 1048, cl. 2 provides that the immunity provided to officers and directors in subsection A of § 8.01-220.1:4 of the act shall be effective for all acts taken on and after July 1, 1999.

    § 8.01-220.1:5. Defense of intra-family immunity abolished for wrongful death actions.

    In any action for death by wrongful act under § 8.01-50 , the common-law defense of intra-family immunity is abolished and shall not constitute a valid defense as to any such cause of action that arises on or after July 1, 2020.

    History. 2020, c. 906.

    § 8.01-220.2. Spousal liability for medical care.

    Each spouse shall be jointly and severally liable for all emergency medical care furnished to the other spouse by a physician licensed to practice medicine in the Commonwealth or by a hospital located in the Commonwealth, including all follow-up inpatient care provided during the initial emergency admission to any such hospital, which is furnished while the spouses are living together. For the purposes of this section, emergency medical care shall mean any care the physician or other health care professional deems necessary to preserve the patient’s life or health and which, if not rendered timely, can be reasonably anticipated to adversely affect the patient’s recovery or imperil his life or health.

    Any lien arising out of a judgment under this section against the judgment debtor’s principal residence held as tenants by the entireties shall not be enforced unless the residence is refinanced or is transferred to a new owner.

    History. 1984, c. 482; 2009, c. 797; 2016, c. 240.

    The 2009 amendments.

    The 2009 amendment by c. 797 substituted “Each” for “On and after July 1, 1984, each” at the beginning of the first sentence, deleted “attending” preceding “physician” in the second sentence and made a minor stylistic change.

    The 2016 amendments.

    The 2016 amendment by c. 240 added the second paragraph.

    Michie’s Jurisprudence.

    For related discussion, see 9B M.J. Husband and Wife, §§ 21, 32, 85.

    CASE NOTES

    “Emergency medical care.” —

    Extensive in-patient treatment following surgery to remove a cancerous lung mass did not constitute “emergency medical care” within the meaning of the statute where: (1) after being diagnosed with lung cancer in February, 1999, the decedent underwent chemotherapy, which was completed on April 16, 1999, and radiation, which was completed on April 28, 1999, (2) the decedent then had a CT scan on May 12, 1999, in order for his doctors to ascertain whether there was any change in the size of a right upper lobe mass and peritracheal nodes in his right lung, (3) the decedent then scheduled his May 28, 1999, lung surgery two weeks in advance, and (4) in-patient treatment followed such surgery. Sentara Va. Beach Gen. Hosp. v. Lebeau, 188 F. Supp. 2d 623, 2002 U.S. Dist. LEXIS 4069 (E.D. Va. 2002).

    “Timely.” —

    “Timely” must be understood in the context of the ordinary meaning of “emergency,” that is, an unforeseen combination of circumstances or the resulting state that calls for immediate action or an urgent need for assistance or relief. In re Balthrop, No. 05-11000-SSM, 2005 Bankr. LEXIS 2713 (Bankr. E.D. Va. Nov. 28, 2005).

    Application of definition of emergency medical care. —

    This section only provides for spousal liability for in-patient care that is during an initial emergency admission. Hence, the statutory definition of emergency medical care is relevant only for determining whether the initial admission qualifies as an emergency admission from which in-patient care flows, and once an initial admission qualifies as emergency medical care under the statutory definition, then all of the in-patient care provided during that initial emergency admission is covered. Sentara Va. Beach Gen. Hosp. v. Lebeau, 188 F. Supp. 2d 623, 2002 U.S. Dist. LEXIS 4069 (E.D. Va. 2002).

    Where a creditor filed two claims for medical care provided to Chapter 13 debtor wife, who had scheduled cancer surgery performed on her, and objected to confirmation of debtors’ plan because it failed to pay creditor as much as it would have received in a Chapter 7 liquidation, the objection was overruled on the basis that debtor wife’s debt could not have been administered in a Chapter 7 case as joint debt against debtors’ tenants by the entireties property under § 8.01-220.2 because the medical care performed for debtor wife was not emergency care. In re Balthrop, No. 05-11000-SSM, 2005 Bankr. LEXIS 2713 (Bankr. E.D. Va. Nov. 28, 2005).

    Responsibility for in-patient care. —

    Section 8.01-220.2 clearly designates the spouse’s responsibility for in-patient care attendant to an emergency admission to be follow-up in-patient care provided during the initial emergency admission. Sentara Va. Beach Gen. Hosp. v. Lebeau, 188 F. Supp. 2d 623, 2002 U.S. Dist. LEXIS 4069 (E.D. Va. 2002).

    Spouse not liable for non-emergency care. —

    Where lung cancer patient had (1) diagnostic CT scan after chemotherapy and radiation, (2) scheduled surgery two weeks later, and (3) 41-day hospital stay culminating in death, patient’s spouse was not liable for hospital bills under § 8.01-220.2 .Sentara Va. Beach Gen. Hosp. v. Lebeau, 188 F. Supp. 2d 623, 2002 U.S. Dist. LEXIS 4069 (E.D. Va. 2002).

    § 8.01-221. Damages from violation of statute, remedy therefor and penalty.

    Any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, even though a penalty or forfeiture for such violation be thereby imposed, unless such penalty or forfeiture be expressly mentioned to be in lieu of such damages. And the damages so sustained together with any penalty or forfeiture imposed for the violation of the statute may be recovered in a single action when the same person is entitled to both damages and penalty; but nothing herein contained shall affect the existing statutes of limitation applicable to the foregoing causes of action respectively.

    History. Code 1950, § 8-652; 1954, c. 333; 1977, c. 617.

    Cross references.

    As to the recovery of penalties by the Commonwealth, see § 19.2-341 .

    Law Review.

    For survey of Virginia law on property for the year 1973-1974, see 60 Va. L. Rev. 1583 (1974).

    For annual survey commentary, “The Merger of Common-Law and Equity Pleading in Virginia,” see 41 U. Rich. L. Rev. 77 (2006).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Actions, § 5.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Section confers no new right of action. —

    This section merely preserves any right of action the injured person may have, and does not give him any new right of action. Ward v. Connor, 495 F. Supp. 434, 1980 U.S. Dist. LEXIS 14966 (E.D. Va. 1980), rev'd, 657 F.2d 45, 1981 U.S. App. LEXIS 18613 (4th Cir. 1981).

    This section creates no new right of action for damages for violation of some other criminal or penalty statute; no civil right of action exists unless such other statute by its terms so provides, or unless proof of the same facts that establish violation of such other statute also constitutes proof of an otherwise existing civil action for damages independent of the criminal statute. Vansant & Gusler, Inc. v. Washington, 245 Va. 356 , 429 S.E.2d 31, 9 Va. Law Rep. 1177, 1993 Va. LEXIS 72 (1993).

    This section permits damages for those injured by a violation of the Virginia Code. However, this section does not create a new right of action where none existed. Instead, it prevents a wrongdoer from avoiding civil liability based on the theory that he has paid his penalty under a penal statute. Pettengill v. United States, 867 F. Supp. 380, 1994 U.S. Dist. LEXIS 16068 (E.D. Va. 1994).

    Plaintiff car dealership’s former owner’s claim under § 8.01-221 against defendants, a car manufacturer and its financing division, failed to state a claim as § 8.01-221 did not create a separate private action for the alleged Racketeer Influenced and Corrupt Organizations Act claims’ predicate acts, and while § 59.1-68.3 provided private actions for false advertising under §§ 18.2-216 and 18.2-217 , there were no allegations on the nature of such advertising, and an executive’s alleged false credentials in a resume was insufficient. Field v. GMAC LLC, 660 F. Supp. 2d 679, 2008 U.S. Dist. LEXIS 110164 (E.D. Va. 2008), aff'd, 328 Fed. Appx. 873, 2009 U.S. App. LEXIS 16460 (4th Cir. 2009).

    Although this section does not create any new rights of action but instead preserves any existing right of action that an injured person may have against a wrongdoer who has previously been the subject of statutory penalties for his misconduct, it is consistent with the idea that the provision for a statutory penalty does not foreclose a person’s right to recover damages for the same statutory violation unless the statute so provides. Morgan v. American Family Life Assurance Co., 559 F. Supp. 477, 1983 U.S. Dist. LEXIS 18523 (W.D. Va. 1983), disapproved, A & E Supply Co. v. Nationwide Mut. Fire Ins. Co., 798 F.2d 669, 1986 U.S. App. LEXIS 28177 (4th Cir. 1986).

    Disclosure of confidential medical information. —

    In a case in which plaintiff claimed that defendants, a healthcare corporation and two of its employees, had disclosed her confidential medical information to others, the Supreme Court disagreed with plaintiff regarding the corporation’s direct liability under Fairfax Hospital v. Curtis and under the doctrine of negligence per se. Adhering to its settled precedent interpreting § 8.01-221 , the Supreme Court declined plaintiff’s invitation to reinterpret it as a legislative directive to transform alleged federal HIPAA violations into a state-law, negligence per se claim. Parker v. Carilion Clinic, 2018 Va. LEXIS 211 (Va. Nov. 1, 2018).

    II.Decisions Under Prior Law.

    Editor’s note.

    Purpose. —

    It is very evident that the purpose of this section was merely to preserve to an injured person the right to maintain his action for the injury he may have received by reason of the wrongdoing of another, and to prevent the wrongdoer from setting up the defense that he had paid the penalty of his wrongdoing under a penal statute. It cannot be supposed that in enacting this section the legislature had the remotest idea of creating any new ground for bringing an action for damages. Tyler v. Western Union Tel. Co., 54 F. 634, 1893 U.S. App. LEXIS 2498 (C.C.D. Va. 1893) see also Connolly v. Western Union Tel. Co., 100 Va. 51 , 40 S.E. 618 , 1902 Va. LEXIS 1 (1902); Hortenstein v. Virginia-Carolina Ry., 102 Va. 914 , 47 S.E. 996 , 1904 Va. LEXIS 55 (1904).

    Confers no new right of action. —

    This section merely preserves any right of action the injured person may have, and does not give him any new right of action. Tyler v. Western Union Tel. Co., 54 F. 634, 1893 U.S. App. LEXIS 2498 (C.C.D. Va. 1893).

    This section confers no new or enlarged right upon a party injured as a result of the violation of a statute. A party suing for an injury arising from an act of a defendant, in violation of a statute, claiming damages, and not merely the penalty prescribed in the act, must allege and prove the same facts he would have to allege and prove if the act of negligence complained of was not in violation of a statute. Hortenstein v. Virginia-Carolina Ry., 102 Va. 914 , 47 S.E. 996 , 1904 Va. LEXIS 55 (1904).

    Applies to any violation of statutory duty. —

    This section seems, in terms, to provide for the measure of damages in any case in which there shall be an injury resulting from the violation of any statute in this State. Western Union Tel. Co. v. Reynolds Bros., 77 Va. 173 , 1883 Va. LEXIS 47 (1883).

    But proximate cause must also be established. —

    While one who violates a statute or an ordinance may be regarded as a wrongdoer, and the act regarded as negligence, still it may or may not be the proximate cause of the injury complained of according to the facts of the particular case. The element of proximate cause must be established, and it will not necessarily be presumed from the fact that an ordinance or statute has been violated. Wyatt v. C & P Tel. Co., 158 Va. 470 , 163 S.E. 370 , 1932 Va. LEXIS 269 (1932).

    Common-law duty of landlords not enlarged. —

    In an action against landlords to recover for injuries sustained by a tenant’s invitee when some steps at the entrance of defendants’ building tilted over and caused him to fall, where it was contended that the steps were being maintained in violation of local ordinances, it was held that neither the ordinances nor this section enlarged the common-law duty of the landlords to their tenant or the tenant’s invitee. Oliver v. Cashin, 192 Va. 540 , 65 S.E.2d 571, 1951 Va. LEXIS 201 (1951).

    CIRCUIT COURT OPINIONS

    Section does not create cause of action. —

    Demurrer filed by a counselor and his employer as to the count of patient’s complaint alleging taking indecent liberties with a minor while the accused is in a supervisory relationship was sustained because the factual allegations could be properly included in a claim for sexual assault and battery, but they did not generate a separate civil claim for a violation of subsection A of § 18.2-370.1 ; § 8.01-221 does not create, or recognize, that a cause of action exists for a violation of the indecent liberties statute in the criminal code, subsection A of § 18.2-370.1 .B.E.L. v. Price, 81 Va. Cir. 391, 2010 Va. Cir. LEXIS 138 (Culpeper County Dec. 2, 2010).

    It cannot be supposed that, in enacting the statute, the legislature had the remotest idea of creating any new ground for bringing an action for damages, and as there is no common-law action for damages by an agent for refusal to accept a power of attorney, the statute does not create one; the statute does, however, provide a remedy whereby the court can mandate the acceptance of the power of attorney. Lance v. Wells Fargo Bank, N.A., 99 Va. Cir. 115, 2018 Va. Cir. LEXIS 20 (Chesapeake Feb. 21, 2018).

    § 8.01-221.1. Unestablished business damages; lost profits.

    Damages for lost profits of a new or unestablished business may be recoverable upon proper proof. A party shall not be deemed to have failed to prove lost profits because the new or unestablished business has no history of profits. Such damages for a new or unestablished business shall not be recoverable in wrongful death or personal injury actions other than actions for defamation.

    History. 2002, c. 624.

    CIRCUIT COURT OPINIONS

    New businesses. —

    Two business tenants were not precluded from suing their former landlord for lost profits merely because their business was unestablished and new, as long as they provided proper proof, pursuant to this section. Sukens v. Wilkes, 64 Va. Cir. 220, 2004 Va. Cir. LEXIS 200 (Richmond Mar. 11, 2004).

    Loss of economic opportunity not an independent cause of action. —

    Joint venturer’s alleged loss of economic opportunity was not an independent cause of action, but a remedy. Loss of economic opportunity may have been a measure of consequential damages, but was not a separate and distinct claim. Taveira v. Vieira, 2015 Va. Cir. LEXIS 90 (Virginia Beach May 29, 2015).

    § 8.01-221.2. Rescission; undue influence; attorney fees.

    In any civil action to rescind a deed, contract, or other instrument, the court may award to the plaintiff reasonable attorney fees and costs associated with bringing such action where the court finds, by clear and convincing evidence, that the deed, contract, or other instrument was obtained by fraud or undue influence on the part of the defendant.

    History. 2014, c. 164.

    § 8.01-222. Repealed by Acts 2007, c. 368, cl. 2.

    § 8.01-223. Lack of privity no defense in certain cases.

    In cases not provided for in § 8.2-318 where recovery of damages for injury to person, including death, or to property resulting from negligence is sought, lack of privity between the parties shall be no defense.

    History. Code 1950, § 8-654.4; 1966, c. 439; 1977, c. 617.

    Law Review.

    For note discussing Virginia’s disavowal of privity of contract in commercial transactions as a basis for extended liability, see 14 Wm. & Mary L. Rev. 409 (1972).

    For article, “The Collision of Tort and Contract in the Construction Industry,” see 21 U. Rich. L. Rev. 457 (1987).

    For survey on construction law in Virginia for 1989, see 23 U. Rich. L. Rev. 541 (1989).

    For annual survey commentary, “Accrual of Causes of Action in Virginia,” see 41 U. Rich. L. Rev. 15 (2006).

    For casenote and comment, “The Fourth Circuit Sinks Admiral Dur’s Boat and Virginia’s Economic Loss Rule Insulates a Negligent Subcontractor from Tort Liability,” see 16 Geo. Mason L. Rev. 747 (2009).

    Michie’s Jurisprudence.

    For related discussion, see 3C M.J. Commercial Law, § 13.

    CASE NOTES

    The legislature intended that this section apply only from the date of its enactment. Farish v. Courion Indus., Inc., 722 F.2d 74, 1983 U.S. App. LEXIS 14855 (4th Cir. 1983).

    The legislature intended this section and § 8.2-318 to apply prospectively only from the dates of their enactments. Farish v. Courion Indus., Inc., 754 F.2d 1111, 1985 U.S. App. LEXIS 28168 (4th Cir. 1985).

    This section is a companion statute to § 8.2-318 . Bryant Elec. Co. v. City of Fredericksburg, 762 F.2d 1192, 1985 U.S. App. LEXIS 31288 (4th Cir. 1985).

    This section is in derogation of the common-law privity requirement. —

    Under Virginia’s rules of statutory construction, it is not to be extended beyond its express terms. Farish v. Courion Indus., Inc., 722 F.2d 74, 1983 U.S. App. LEXIS 14855 (4th Cir. 1983); Bryant Elec. Co. v. City of Fredericksburg, 762 F.2d 1192, 1985 U.S. App. LEXIS 31288 (4th Cir. 1985).

    Privity not abolished where only economic loss suffered. —

    This section does not appear to abolish the common-law requirement of privity for negligence suits in which the plaintiff has suffered only economic loss. Bryant Elec. Co. v. City of Fredericksburg, 762 F.2d 1192, 1985 U.S. App. LEXIS 31288 (4th Cir. 1985).

    This section does not eliminate the privity requirement in a negligence action for economic loss alone. Blake Constr. Co. v. Alley, 233 Va. 31 , 353 S.E.2d 724, 3 Va. Law Rep. 1868, 1987 Va. LEXIS 167 (1987).

    Where there is no duty alleged between plaintiff and defendants, and because seemingly the loss or damage is purely economic where no privity exists, there is no cause of action for negligence. John C. Holland Enters., Inc. v. J.P. Mascaro & Sons, 653 F. Supp. 1242, 1987 U.S. Dist. LEXIS 1344 (E.D. Va.), aff'd, 829 F.2d 1120, 1987 U.S. App. LEXIS 12206 (4th Cir. 1987).

    This section does not eliminate the privity requirement in a negligence action for economic loss alone because it is in derogation of the common law and is not to be enlarged beyond its express terms. Beard Plumbing & Heating v. Thompson Plastics, 152 F.3d 313, 1998 U.S. App. LEXIS 18363 (4th Cir. 1998).

    Lack of privity held bar to recovery. —

    Virginia law does not permit recovery by a home purchaser against the pool installer and the architect for damages to an indoor swimming pool and the foundation of a house caused by a leaking pool, where the pool installer and the architect were not in privity of contract with the home purchaser; the damages were injuries to property and not economic losses, and even if the indoor swimming pool and its separate room enclosure were built against the house but outside its foundation, that fact would not affect the result. Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236 Va. 419 , 374 S.E.2d 55, 5 Va. Law Rep. 1040, 1988 Va. LEXIS 150 (1988).

    Where the stockholder’s reliance upon alleged substandard professional services rendered by accounting firm induced him to make the warranties and to execute the escrow indemnity covenant that became the foundation of his liability to corporation, and his liability was measured by the diminution in the value of the whole stock package, i.e., the difference between the sale price of his stock fixed in reliance upon the bargained-for services and the value determined by a correct accounting formula, in effect, stockholder alleged nothing more than disappointed economic expectations, and his loss, then, was a purely economic loss. Therefore, because stockholder lacking privity of contract with accounting firm and sought to recover damages for economic loss under negligence principles, the trial court did not err in granting the accounting firm’s demurrer to the original motion for judgment. Ward v. Ernst & Young, 246 Va. 317 , 435 S.E.2d 628, 10 Va. Law Rep. 305, 1993 Va. LEXIS 126 (1993).

    Plaintiff’s breach of warranty claim against defendant rip-saw manufacturer was dismissed due to lack of privity between plaintiff’s decedent and defendant because plaintiff could not show the product was manufactured or sold before Virginia’s first anti-privity statute was enacted in 1962, and unlike for negligence claims, the inherently dangerous product exception to the privity requirement does not apply to warranty claims. Powell v. Diehl Woodworking Mach., Inc., 198 F. Supp. 3d 628, 2016 U.S. Dist. LEXIS 103434 (E.D. Va. 2016).

    Damages sought in addition to economic loss. —

    Pursuant to § 8.01-223 , the economic loss rule did not bar the negligence claims asserted by insurers against a contractor, its subcontractor, and related parties for damages caused by a roof that collapsed because, although the various parties defendant were not in privity with the insured tenants, the subrogated cause of action by the insurers sought damages for both the “injury” to property that was not the subject of contractual obligation between the parties, e.g., inventory and display fixtures, as well as economic loss resulting from the alleged negligence of one or more of the defendants. Factory Mut. Ins. Co. v. DLR Contr., Inc., No. 3:04CV834, 2005 U.S. Dist. LEXIS 25876 (E.D. Va. Oct. 20, 2005).

    Neither this section nor § 8.2-318 alters the rule demanding privity of contract in warranty actions against architects. Gravely v. Providence Partnership, 549 F.2d 958, 1977 U.S. App. LEXIS 14606 (4th Cir. 1977) (decided under prior law).

    Not applicable to boat owner’s negligence action. —

    Damage to a boat owner’s boat caused by an electrical fire fell within the scope of the contract between the owner’s general contractor and a subcontractor, thus, amounting to nothing more than economic loss for which the owner’s sole remedy against the subcontractor was contract law, and § 8.01-223 did not apply to the owner’s negligence action against the subcontractor because the record was absent of any evidence that the owner’s boat suffered damage beyond the scope of the contract. Dur v. W. Branch Diesel, 240 Fed. Appx. 568, 2007 U.S. App. LEXIS 16237 (4th Cir. 2007).

    CIRCUIT COURT OPINIONS

    Bar to recovery. —

    A products liability claim is not beyond the scope of the economic loss rule, and a products liability claim must state a cause of action arising out of injury to person or property. MacConkey v. F.J. Matter Design, Inc., 54 Va. Cir. 1, 2000 Va. Cir. LEXIS 390 (Virginia Beach Feb. 8, 2000).

    Where a subcontractor claimed that a tile remover was negligent in repairing a tile floor at a mall under the tile remover’s contract with the contractor, but the subcontractor did not seek recovery for damages to its alleged property, and instead, sought indemnification or contribution for any economic losses it would suffer if it was found liable to the contractor on the contractor’s separate claims, recovery for such purely economic losses was not available to the subcontractor since it had no privity of contract with the tile remover. Metro Panel Sys. v. Sordoni Skanska Constr. Co., 56 Va. Cir. 399, 2001 Va. Cir. LEXIS 478 (Norfolk Sept. 17, 2001).

    Priority of contract required for economic losses. —

    While contractor’s agent who was being sued for the alleged negligent performance and supervision of work under a contract to build a house was generally liable for the agent’s negligent performance of the principal’s contract, this was subject to the exception of the economic loss doctrine, and therefore, the agent could only be liable in negligence for damages to persons or property; privity of contract was required for economic losses. Rice v. Berkwood Corp., 56 Va. Cir. 493, 2001 Va. Cir. LEXIS 490 (Chesterfield County Oct. 9, 2001).

    Water infiltration into condominiums, and the resulting damage to other property, caused a diminution in the value of property that created only disappointed economic expectations, and the “economic loss rule” barred recovery for negligence, as there was no privity between the condominium association and the manufacturer of the allegedly defective exterior insulation finishing system; although § 8.01-223 abrogated the common law requirement of privity, the statute was interpreted strictly to apply only in negligence cases involving injury to person or property. Bd. of Dirs. of the Lesner Pointe Condo. on the Chesapeake Bay Ass'n v. Harbour Point Bldg. Corp., 2002 Va. Cir. LEXIS 422 (Virginia Beach June 18, 2002).

    Because the failure of a company’s warning system was a breach of its contractual obligation to a county, but not to a resident, the resident did not state a cause of action in negligence under § 8.01-223 against the company because the resident’s damages were purely economic; accordingly, the company’s demurrer was sustained. Gianforte v. Verizon Va., Inc., 69 Va. Cir. 361, 2005 Va. Cir. LEXIS 207 (Fairfax County Dec. 8, 2005).

    No privity of contract found. —

    Realtor’s motion for summary judgment was granted as to the buyers’ negligent performance of a contract by an agent claim as the realtor was not an agent under the contract purportedly created by the covenant simply because it undertook to send out the notices, and the realtor had no common law duty toward the buyers; the economic loss doctrine and its privity requirement remained in effect, and the buyers admitted that there was no privity between them and the realtor, and also admitted that they suffered only an economic loss. Wenke v. Emerald Lake Homes, L.C., 65 Va. Cir. 85, 2004 Va. Cir. LEXIS 81 (Orange County May 26, 2004).

    Economic loss doctrine did not apply as between an inspector and the third parties with whom a corporation settled because the underlying third-party losses were not alleged to be purely economic, and the source of duty rule regarding the negligence count was inapplicable with respect to the third-party claims. Allied Terminals, Inc. v. HMT, Inc., 89 Va. Cir. 206, 2014 Va. Cir. LEXIS 141 (Chesapeake Sept. 22, 2014).

    § 8.01-223.1. Use of constitutional rights.

    In any civil action, the exercise by a party of any constitutional protection shall not be used against him, except that in any civil proceeding for spousal support, custody, or visitation under Title 16.1 or any civil action for divorce or separate maintenance under Title 20 filed on or after July 1, 2020, if a party or witness refuses to answer a question about conduct described in subdivision A (1) of § 20-91 or in § 18.2-365 on the ground that the testimony might be self-incriminating, the trier of fact may draw an adverse inference from such refusal.

    History. 1985, c. 192; 2020, c. 1062.

    The 2020 amendments.

    The 2020 amendment by c. 1062, added “except that in any civil proceeding for spousal support, custody, or visitation under Title 16.1 or any civil action for divorce or separate maintenance under Title 20 filed on or after July 1, 2020, if a party or witness refuses to answer a question about conduct described in subdivision A (1) of § 20-91 or in § 18.2-365 on the ground that the testimony might be self-incriminating, the trier of fact may draw an adverse inference from such refusal” at the end.

    Michie’s Jurisprudence.

    For related discussion, see 4C M.J. Constitutional Law, § 76.

    CASE NOTES

    Invoking privilege during deposition would not permit adverse evidentiary inferences. —

    Trial court was forbidden to draw adverse evidentiary inferences from the fact that the wife asserted her privilege against self-incrimination numerous times during her deposition in an action by the husband to terminate spousal support. Goldmann v. Goldmann, 2002 Va. App. LEXIS 772 (Va. Ct. App. Dec. 31, 2002).

    Dismissal. —

    This section barred the trial court from dismissing mother’s petitions because she refused to answer father’s discovery requests by asserting her privilege against self-incrimination, and, under the facts of this case, superceded the “sword and shield” doctrine. Travis v. Finley, 36 Va. App. 189, 548 S.E.2d 906, 2001 Va. App. LEXIS 422 (2001).

    CIRCUIT COURT OPINIONS

    Husband’s refusal to testify could not be used against him. —

    In a divorce proceeding, after a wife asserted the common law “sword and shield” doctrine and the sanctions under subsection B of § 8.01-401 , the court ruled that the husband’s refusal to testify about his alleged adultery could not be used against him. Moreover, the court upheld the notion that § 8.01-223.1 superseded the “sword and shield” doctrine in any case wherein a party’s refusal to testify was the result of the exercise of a constitutional privilege. Toth v. Toth, 2007 Va. Cir. LEXIS 266 (Fairfax County Dec. 17, 2007).

    Invoking privilege during deposition. —

    Although advised by counsel, the self-incrimination privilege was properly invoked by an owner in a partition action deposition; the owner’s testimony on other matters did not waive the privilege. Pelliccia v. McKeithen, 59 Va. Cir. 483, 2002 Va. Cir. LEXIS 353 (Charlottesville Oct. 10, 2002).

    § 8.01-223.2. Immunity of persons for statements made at public hearing or communicated to third party.

    1. A person shall be immune from civil liability for a violation of § 18.2-499 , a claim of tortious interference with an existing contract or a business or contractual expectancy, or a claim of defamation based solely on statements (i) regarding matters of public concern that would be protected under the First Amendment to the United States Constitution made by that person that are communicated to a third party or (ii) made at a public hearing before the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body. The immunity provided by this section shall not apply to any statements made with actual or constructive knowledge that they are false or with reckless disregard for whether they are false.
    2. Any person who has a suit against him dismissed or a witness subpoena or subpoena duces tecum quashed pursuant to the immunity provided by this section may be awarded reasonable attorney fees and costs.

    History. 2007, c. 798; 2016, c. 239; 2017, cc. 586, 597; 2020, c. 824.

    The 2016 amendments.

    The 2016 amendment by c. 239 added the second paragraph.

    The 2017 amendments.

    The 2017 amendments by cc. 586 and 597 are identical, and added the subsection designations; in subsection A, in the first sentence, inserted the clause (i) and (ii) designations, inserted “or a claim of defamation,” substituted “regarding matters of public concern that would be protected under the First Amendment to the United States Constitution made by that person that are communicated to a third party or (ii) made” for “made by that person” and in the second sentence, inserted “actual or constructive” and made minor stylistic changes.

    The 2020 amendments.

    The 2020 amendment by c. 824 inserted “or a witness subpoena or subpoena duces tecum quashed” in subsection B.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    CASE NOTES

    No affirmative defense found. —

    Section 8.01-223.2 could not have served as an affirmative defense because the undisputed conduct of defendants, a union, and others, involved far more than statements made solely at a public hearing, and defendants admitted that much of the conduct in relation to the lobbying of governmental bodies occurred outside of the confines of public hearings. Smithfield Foods, Inc. v. United Food & Commer. Workers Int'l Union, 593 F. Supp. 2d 840, 2008 U.S. Dist. LEXIS 81687 (E.D. Va. 2008).

    Defamation. —

    Dismissal of attorney’s defamation per se claim against a TV news outlet was proper as the outlet’s report was protected by Virginia’s fair report privilege since the attribution of a magistrate’s statements in the attorney’s wife’s welfare fraud case were substantially correct and did not reasonably imply the attorney’s involvement in his wife’s crime. Agbapuruonwu v. NBC Subsidiary (WRC-TV), LLC, 821 Fed. Appx. 234, 2020 U.S. App. LEXIS 26163 (4th Cir. 2020), cert. denied, 141 S. Ct. 1393, 209 L. Ed. 2d 131, 2021 U.S. LEXIS 840 (2021).

    In accordance with the plain meaning of the word “may,” the appellate court found that the statute was permissive, authorizing the court to award fees in its discretion; as such, the court properly exercised its discretion in denying the news organization’s motion for fees. Fairfax v. CBS Corp., 2 F.4th 286, 2021 U.S. App. LEXIS 18738 (4th Cir. 2021).

    CIRCUIT COURT OPINIONS

    Statute of limitations. —

    Defendant’s defamation action was untimely because the plaintiff’s statements in publications arose from statements made in separate publications, on separate dates, and by different people, and the plaintiff could not have anticipated, at the time of filing his complaint, a need to defend against statements made to other publications. Depp v. Heard, 107 Va. Cir. 80, 2021 Va. Cir. LEXIS 1 (Fairfax County Jan. 4, 2021).

    Effect and operation. —

    This section, as revised, creates a right of recovery of attorney fees in a defamation case that did not exist prior to the revision. Thus, the change is substantive and, therefore, not retroactive. Will Nesbitt Realty, LLC v. Jones, 2018 Va. Cir. LEXIS 66 (Fairfax County Apr. 30, 2018).

    Version of this section that went into effect in 2017 does provide for recovery of attorney fees by a defendant who obtains dismissal of claims of defamation pursuant to the statute. Will Nesbitt Realty, LLC v. Jones, 2018 Va. Cir. LEXIS 66 (Fairfax County Apr. 30, 2018).

    Defamation. —

    Version of § 8.01-230 in effect on December 3, 2015 neither covered claims of defamation nor provided for recovery of attorney fees. Thus, the statute in effect at the time plaintiff’s defamation cause of action accrued was not applicable to the instant case. Will Nesbitt Realty, LLC v. Jones, 2018 Va. Cir. LEXIS 66 (Fairfax County Apr. 30, 2018).

    Defendant’s counterclaim for a declaratory judgment was dismissed because even if the court held in her favor that her statements were protected expressions of opinion that entitled her to attorney fees under the Anti-SLAPP statute, she would receive the relief at the same time as receiving the same relief under her anti-SLAPP defense. Depp v. Heard, 107 Va. Cir. 80, 2021 Va. Cir. LEXIS 1 (Fairfax County Jan. 4, 2021).

    Plaintiff was not entitled to Anti-SLAPP immunity because his statements were not matters on public concern, and the defendant sufficiently alleged that the plaintiff may have made the statements with actual or constructive knowledge or with reckless disregard for whether they were false. Depp v. Heard, 107 Va. Cir. 80, 2021 Va. Cir. LEXIS 1 (Fairfax County Jan. 4, 2021).

    § 8.01-224. Defense of governmental immunity not available to certain persons in actions for damages from blasting, etc.

    The defense of governmental immunity shall not be available to any person, firm or corporation in any cause of action for damages to the property of others proximately or directly resulting from blasting or the use of explosives in the performance of work for or on behalf of any governmental agency.

    History. Code 1950, § 8-654.5; 1970, c. 642; 1977, c. 617.

    Law Review.

    For survey of recent legislation on torts — blasting and governmental immunity, see 5 U. Rich. L. Rev. 201 (1970).

    For note on the abrogation of sovereign immunity in Virginia: The Virginia Tort Claims Act, see 7 G.M.U. L. Rev. 291 (1984).

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Explosions and Explosives, § 7.

    § 8.01-225. (Effective until July 1, 2022) Persons rendering emergency care, obstetrical services exempt from liability.

    1. Any person who:
      1. In good faith, renders emergency care or assistance, without compensation, to any ill or injured person (i) at the scene of an accident, fire, or any life-threatening emergency; (ii) at a location for screening or stabilization of an emergency medical condition arising from an accident, fire, or any life-threatening emergency; or (iii) en route to any hospital, medical clinic, or doctor’s office, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such care or assistance. For purposes of this subdivision, emergency care or assistance includes the forcible entry of a motor vehicle in order to remove an unattended minor at risk of serious bodily injury or death, provided the person has attempted to contact a law-enforcement officer, as defined in § 9.1-101 , a firefighter, as defined in § 65.2-102 , emergency medical services personnel, as defined in § 32.1-111.1 , or an emergency 911 system, if feasible under the circumstances.
      2. In the absence of gross negligence, renders emergency obstetrical care or assistance to a female in active labor who has not previously been cared for in connection with the pregnancy by such person or by another professionally associated with such person and whose medical records are not reasonably available to such person shall not be liable for any civil damages for acts or omissions resulting from the rendering of such emergency care or assistance. The immunity herein granted shall apply only to the emergency medical care provided.
      3. In good faith and without compensation, including any emergency medical services provider who holds a valid certificate issued by the Commissioner of Health, administers epinephrine in an emergency to an individual shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if such person has reason to believe that the individual receiving the injection is suffering or is about to suffer a life-threatening anaphylactic reaction.
      4. Provides assistance upon request of any police agency, fire department, emergency medical services agency, or governmental agency in the event of an accident or other emergency involving the use, handling, transportation, transmission, or storage of liquefied petroleum gas, liquefied natural gas, hazardous material, or hazardous waste as defined in § 10.1-1400 or regulations of the Virginia Waste Management Board shall not be liable for any civil damages resulting from any act of commission or omission on his part in the course of his rendering such assistance in good faith.
      5. Is an emergency medical services provider possessing a valid certificate issued by authority of the State Board of Health who in good faith renders emergency care or assistance, whether in person or by telephone or other means of communication, without compensation, to any injured or ill person, whether at the scene of an accident, fire, or any other place, or while transporting such injured or ill person to, from, or between any hospital, medical facility, medical clinic, doctor’s office, or other similar or related medical facility, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such emergency care, treatment, or assistance, including but in no way limited to acts or omissions which involve violations of State Department of Health regulations or any other state regulations in the rendering of such emergency care or assistance.
      6. In good faith and without compensation, renders or administers emergency cardiopulmonary resuscitation (CPR); cardiac defibrillation, including, but not limited to, the use of an automated external defibrillator (AED); or other emergency life-sustaining or resuscitative treatments or procedures which have been approved by the State Board of Health to any sick or injured person, whether at the scene of a fire, an accident, or any other place, or while transporting such person to or from any hospital, clinic, doctor’s office, or other medical facility, shall be deemed qualified to administer such emergency treatments and procedures and shall not be liable for acts or omissions resulting from the rendering of such emergency resuscitative treatments or procedures.
      7. Operates an AED at the scene of an emergency, trains individuals to be operators of AEDs, or orders AEDs, shall be immune from civil liability for any personal injury that results from any act or omission in the use of an AED in an emergency where the person performing the defibrillation acts as an ordinary, reasonably prudent person would have acted under the same or similar circumstances, unless such personal injury results from gross negligence or willful or wanton misconduct of the person rendering such emergency care.
      8. Maintains an AED located on real property owned or controlled by such person shall be immune from civil liability for any personal injury that results from any act or omission in the use in an emergency of an AED located on such property unless such personal injury results from gross negligence or willful or wanton misconduct of the person who maintains the AED or his agent or employee.
      9. Is an employee of a school board or of a local health department approved by the local governing body to provide health services pursuant to § 22.1-274 who, while on school property or at a school-sponsored event, (i) renders emergency care or assistance to any sick or injured person; (ii) renders or administers emergency cardiopulmonary resuscitation (CPR); cardiac defibrillation, including, but not limited to, the use of an automated external defibrillator (AED); or other emergency life-sustaining or resuscitative treatments or procedures that have been approved by the State Board of Health to any sick or injured person; (iii) operates an AED, trains individuals to be operators of AEDs, or orders AEDs; or (iv) maintains an AED, shall not be liable for civil damages for ordinary negligence in acts or omissions on the part of such employee while engaged in the acts described in this subdivision.
      10. Is a volunteer in good standing and certified to render emergency care by the National Ski Patrol System, Inc., who, in good faith and without compensation, renders emergency care or assistance to any injured or ill person, whether at the scene of a ski resort rescue, outdoor emergency rescue, or any other place or while transporting such injured or ill person to a place accessible for transfer to any available emergency medical system unit, or any resort owner voluntarily providing a ski patroller employed by him to engage in rescue or recovery work at a resort not owned or operated by him, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such emergency care, treatment, or assistance, including but not limited to acts or omissions which involve violations of any state regulation or any standard of the National Ski Patrol System, Inc., in the rendering of such emergency care or assistance, unless such act or omission was the result of gross negligence or willful misconduct.
      11. Is an employee of (i) a school board, (ii) a school for students with disabilities as defined in § 22.1-319 licensed by the Board of Education, or (iii) a private school accredited pursuant to § 22.1-19 as administered by the Virginia Council for Private Education and is authorized by a prescriber and trained in the administration of insulin and glucagon, who, upon the written request of the parents as defined in § 22.1-1, assists with the administration of insulin or, in the case of a school board employee, with the insertion or reinsertion of an insulin pump or any of its parts pursuant to subsection B of § 22.1-274.01:1 or administers glucagon to a student diagnosed as having diabetes who requires insulin injections during the school day or for whom glucagon has been prescribed for the emergency treatment of hypoglycemia shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if the insulin is administered according to the child’s medication schedule or such employee has reason to believe that the individual receiving the glucagon is suffering or is about to suffer life-threatening hypoglycemia. Whenever any such employee is covered by the immunity granted herein, the school board or school employing him shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such insulin or glucagon treatment.
      12. Is an employee of a public institution of higher education or a private institution of higher education who is authorized by a prescriber and trained in the administration of insulin and glucagon, who assists with the administration of insulin or administers glucagon to a student diagnosed as having diabetes who requires insulin injections or for whom glucagon has been prescribed for the emergency treatment of hypoglycemia shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if the insulin is administered according to the student’s medication schedule or such employee has reason to believe that the individual receiving the glucagon is suffering or is about to suffer life-threatening hypoglycemia. Whenever any employee is covered by the immunity granted in this subdivision, the institution shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such insulin or glucagon treatment.
      13. Is a school nurse, an employee of a school board, an employee of a local governing body, or an employee of a local health department who is authorized by a prescriber and trained in the administration of epinephrine and who provides, administers, or assists in the administration of epinephrine to a student believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
      14. Is an employee of a school for students with disabilities, as defined in § 22.1-319 and licensed by the Board of Education, or an employee of a private school that is accredited pursuant to § 22.1-19 as administered by the Virginia Council for Private Education who is authorized by a prescriber and trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a student believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment. Whenever any employee is covered by the immunity granted in this subdivision, the school shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from such administration or assistance.
      15. Is an employee of a public institution of higher education or a private institution of higher education who is authorized by a prescriber and trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a student believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment. Whenever any employee is covered by the immunity granted in this subdivision, the institution shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from such administration or assistance.
      16. Is an employee of an organization providing outdoor educational experiences or programs for youth who is authorized by a prescriber and trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a participant in the outdoor experience or program for youth believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment. Whenever any employee is covered by the immunity granted in this subdivision, the organization shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from such administration or assistance.
      17. Is an employee of a restaurant licensed pursuant to Chapter 3 (§ 35.1-18 et seq.) of Title 35.1, is authorized by a prescriber and trained in the administration of epinephrine, and provides, administers, or assists in the administration of epinephrine to an individual believed in good faith to be having an anaphylactic reaction on the premises of the restaurant at which the employee is employed, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
      18. Is an employee of a provider licensed by the Department of Behavioral Health and Developmental Services, or provides services pursuant to a contract with a provider licensed by the Department of Behavioral Health and Developmental Services, who has been trained in the administration of insulin and glucagon and who administers or assists with the administration of insulin or administers glucagon to a person diagnosed as having diabetes who requires insulin injections or for whom glucagon has been prescribed for the emergency treatment of hypoglycemia in accordance with § 54.1-3408 shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if the insulin is administered in accordance with the prescriber’s instructions or such person has reason to believe that the individual receiving the glucagon is suffering or is about to suffer life-threatening hypoglycemia. Whenever any employee of a provider licensed by the Department of Behavioral Health and Developmental Services or a person who provides services pursuant to a contract with a provider licensed by the Department of Behavioral Health and Developmental Services is covered by the immunity granted herein, the provider shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such insulin or glucagon treatment.
      19. Is an employee of a provider licensed by the Department of Behavioral Health and Developmental Services, or provides services pursuant to a contract with a provider licensed by the Department of Behavioral Health and Developmental Services, who has been trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a person believed in good faith to be having an anaphylactic reaction in accordance with the prescriber’s instructions shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
      20. In good faith prescribes, dispenses, or administers naloxone or other opioid antagonist used for overdose reversal in an emergency to an individual who is believed to be experiencing or about to experience a life-threatening opiate overdose shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if acting in accordance with the provisions of subsection X or Y of § 54.1-3408 or in his role as a member of an emergency medical services agency.
      21. In good faith administers naloxone or other opioid antagonist used for overdose reversal to a person who is believed to be experiencing or about to experience a life-threatening opioid overdose in accordance with the provisions of subsection Z of § 54.1-3408 shall not be liable for any civil damages for any personal injury that results from any act or omission in the administration of naloxone or other opioid antagonist used for overdose reversal, unless such act or omission was the result of gross negligence or willful and wanton misconduct.
      22. Is an employee of a school board, school for students with disabilities as defined in § 22.1-319 licensed by the Board of Education, or private school accredited pursuant to § 22.1-19 as administered by the Virginia Council for Private Education who is trained in the administration of injected medications for the treatment of adrenal crisis resulting from a condition causing adrenal insufficiency and who administers or assists in the administration of such medications to a student diagnosed with a condition causing adrenal insufficiency when the student is believed to be experiencing or about to experience an adrenal crisis pursuant to a written order or standing protocol issued by a prescriber within the course of his professional practice and in accordance with the prescriber’s instructions shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
      23. Is a school nurse, an employee of a school board, an employee of a local governing body, or an employee of a local health department who is authorized by the local health director and trained in the administration of albuterol inhalers and valved holding chambers or nebulized albuterol and who provides, administers, or assists in the administration of an albuterol inhaler and a valved holding chamber or nebulized albuterol for a student believed in good faith to be in need of such medication, or is the prescriber of such medication, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
      24. Is an employee of a public place, as defined in § 15.2-2820 , who is authorized by a prescriber and trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a person present in the public place believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment. Whenever any employee is covered by the immunity granted in this subdivision, the organization shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from such administration or assistance.
    2. Any licensed physician serving without compensation as the operational medical director for an emergency medical services agency that holds a valid license as an emergency medical services agency issued by the Commissioner of Health shall not be liable for any civil damages for any act or omission resulting from the rendering of emergency medical services in good faith by the personnel of such licensed agency unless such act or omission was the result of such physician’s gross negligence or willful misconduct.Any person serving without compensation as a dispatcher for any licensed public or nonprofit emergency medical services agency in the Commonwealth shall not be liable for any civil damages for any act or omission resulting from the rendering of emergency services in good faith by the personnel of such licensed agency unless such act or omission was the result of such dispatcher’s gross negligence or willful misconduct.Any individual, certified by the State Office of Emergency Medical Services as an emergency medical services instructor and pursuant to a written agreement with such office, who, in good faith and in the performance of his duties, provides instruction to persons for certification or recertification as a certified basic life support or advanced life support emergency medical services provider shall not be liable for any civil damages for acts or omissions on his part directly relating to his activities on behalf of such office unless such act or omission was the result of such emergency medical services instructor’s gross negligence or willful misconduct.Any licensed physician serving without compensation as a medical advisor to an E-911 system in the Commonwealth shall not be liable for any civil damages for any act or omission resulting from rendering medical advice in good faith to establish protocols to be used by the personnel of the E-911 service, as defined in § 58.1-1730 , when answering emergency calls unless such act or omission was the result of such physician’s gross negligence or willful misconduct.Any licensed physician who directs the provision of emergency medical services, as authorized by the State Board of Health, through a communications device shall not be liable for any civil damages for any act or omission resulting from the rendering of such emergency medical services unless such act or omission was the result of such physician’s gross negligence or willful misconduct.Any licensed physician serving without compensation as a supervisor of an AED in the Commonwealth shall not be liable for any civil damages for any act or omission resulting from rendering medical advice in good faith to the owner of the AED relating to personnel training, local emergency medical services coordination, protocol approval, AED deployment strategies, and equipment maintenance plans and records unless such act or omission was the result of such physician’s gross negligence or willful misconduct.
    3. Any communications services provider, as defined in § 58.1-647 , including mobile service, and any provider of Voice-over-Internet Protocol service, in the Commonwealth shall not be liable for any civil damages for any act or omission resulting from rendering such service with or without charge related to emergency calls unless such act or omission was the result of such service provider’s gross negligence or willful misconduct.Any volunteer engaging in rescue or recovery work at a mine, or any mine operator voluntarily providing personnel to engage in rescue or recovery work at a mine not owned or operated by such operator, shall not be liable for civil damages for acts or omissions resulting from the rendering of such rescue or recovery work in good faith unless such act or omission was the result of gross negligence or willful misconduct. For purposes of this subsection, “Voice-over-Internet Protocol service” or “VoIP service” means any Internet protocol-enabled services utilizing a broadband connection, actually originating or terminating in Internet Protocol from either or both ends of a channel of communication offering real time, multidirectional voice functionality, including, but not limited to, services similar to traditional telephone service.
    4. Nothing contained in this section shall be construed to provide immunity from liability arising out of the operation of a motor vehicle.
    5. For the purposes of this section, “compensation” shall not be construed to include (i) the salaries of police, fire, or other public officials or personnel who render such emergency assistance; (ii) the salaries or wages of employees of a coal producer engaging in emergency medical services or first aid services pursuant to the provisions of § 45.2-531 , 45.2-579 , 45.2-863 or 45.2-910 ; (iii) complimentary lift tickets, food, lodging, or other gifts provided as a gratuity to volunteer members of the National Ski Patrol System, Inc., by any resort, group, or agency; (iv) the salary of any person who (a) owns an AED for the use at the scene of an emergency, (b) trains individuals, in courses approved by the Board of Health, to operate AEDs at the scene of emergencies, (c) orders AEDs for use at the scene of emergencies, or (d) operates an AED at the scene of an emergency; or (v) expenses reimbursed to any person providing care or assistance pursuant to this section.For the purposes of this section, “emergency medical services provider” shall include a person licensed or certified as such or its equivalent by any other state when he is performing services that he is licensed or certified to perform by such other state in caring for a patient in transit in the Commonwealth, which care originated in such other state.Further, the public shall be urged to receive training on how to use CPR and an AED in order to acquire the skills and confidence to respond to emergencies using both CPR and an AED.

    History. Code 1950, § 54-276.9; 1962, c. 449; 1964, c. 568; 1968, c. 796; 1972, c. 578; 1975, c. 508; 1977, c. 441; 1978, cc. 94, 707; 1979, cc. 713, 729; 1980, c. 419; 1983, c. 72; 1984, cc. 493, 577; 1987, cc. 260, 382; 1990, c. 898; 1996, c. 899; 1997, cc. 334, 809; 1998, cc. 493, 500; 1999, cc. 570, 1000; 2000, cc. 928, 1064; 2003, cc. 18, 978, 1020; 2005, c. 426; 2006, c. 780; 2008, c. 229; 2012, cc. 787, 833; 2013, cc. 183, 267, 300, 336, 617; 2014, c. 468; 2015, cc. 340, 387, 502, 503, 725, 732, 752; 2016, c. 144; 2017 cc. 55, 168; 2017, cc. 55, 168, 294, 304, 713, 811; 2018, c. 247; 2020, cc. 459, 460, 556, 853, 924, 1095.

    Section set out twice.

    The section above is effective until July 1, 2022. For the version of this section effective July 1, 2022, see the following section, also numbered § 8.01-225 .

    Cross references.

    As to the Attorney General’s duty to provide all legal service in civil matters for the Commonwealth and its entities, see § 2.2-507.

    Law Review.

    For survey of Virginia law on torts for the year 1978-1979, see 66 Va. L. Rev. 375 (1980).

    For article, “A Duty to Rescue: Some Thoughts on Criminal Liability,” see 69 Va. L. Rev. 1273 (1983).

    For comment on Virginia’s Birth-Related Neurological Injury Compensation Act, see 22 U. Rich. L. Rev. 431 (1988).

    Michie’s Jurisprudence.

    For related discussion, see 13B M.J. Negligence, § 1.

    Editor’s note.

    This section was enacted, and a substantially identical section, § 54-276.9, was repealed, by Acts 1979, c. 713, effective Oct. 1, 1979, a companion act to Acts 1979, c. 711, which rewrote Title 32 as Title 32.1. Acts 1979, c. 729, amended former § 54-276.9 by adding a new subsection (a1). The Code Commission codified subsection (a1), added to § 54-276.9 by Acts 1979, c. 729, as a subsection in this § 8.01-225 as set out above. See § 30-152.

    Acts 2003, c. 18, which added subsection E, in cl. 3, as amended by Acts 2005, c. 426, cl. 2, provides: “That the provisions of this act shall expire on July 1, 2008.”

    Acts 2005, c. 426, which amended subsection E, in cl. 3, provides: “That the provisions of this act shall expire on July 1, 2008.”

    Acts 2006, c. 780, cl. 4, provides: “That all taxes and fees imposed in accordance with the provisions of any Code of Virginia section or any local charter that are repealed or otherwise amended by this act and that remain unpaid as of January 1, 2007, shall be subject to payment and collection in accordance with any administrative or judicial remedies existing prior or subsequent to this act’s enactment and any bad debt associated with such taxes and fees that occurs after January 1, 2007, shall be offset against revenues collected from the Communications Sales and Use Tax.”

    Acts 2006, c. 780, cl. 8, provides: “That the Auditor of Public Accounts (APA) shall determine the amount of revenues received by every county, city, and town for the fiscal year commencing July 1, 2005, and ending June 30, 2006, at rates adopted on or before January 1, 2006, for each of the following taxes and fees collected by the service providers: gross receipts tax in excess of 0.5%, local consumer utility tax, video program excise tax, cable franchise fee, and 911 taxes and fees, where they are collected. Based on each locality’s percentage of the total Fiscal Year 2006 receipts from these sources, the APA shall calculate each locality’s percentage share of future distributions of the Telecommunications Sales and Use Tax by the Department of Taxation. Local governments and service providers shall cooperate with the APA and provide information to him as requested. Every town with a population of less than 3,500, and any other county, city, or town whose annual audited financial statement cannot be completed by October 1, 2006, shall provide to the APA by that date a statement of its receipts during Fiscal Year 2006 from such telecommunications and cable sources, verified in writing by an independent certified public accountant. Any locality that fails to furnish the information required to make this calculation in a timely manner shall not be entitled to participate in the distribution of such tax, and its percentage share shall be disregarded in calculating the distribution to other localities. The APA or his agent shall not divulge any information acquired by him in the performances of his duties under this section that may identify specific service providers. The APA shall report his findings on a tax-by-tax basis to the chairmen of the House and Senate Finance Committees and the Department of Taxation no later than December 1, 2006. Further, the APA shall collect annually from local governments and service providers the necessary data to determine changes in: (i) market area and number of customers served, (ii) types of services available, (iii) population, and (iv) possible local reimbursement. The APA shall report his findings to the Chairmen of the House and Senate Committees on Finance no later than December 1 each year.”

    Acts 2006, c. 780, cl. 9, provides: “That if any of the provisions of this act are declared invalid in a nonappealable court order, then the remaining provisions of this act shall be invalid and the provisions of §§ 15.2-2108 , 56-468.1, 56-484.4, 56-484.5, 56-484.6, 56-484.12, 58.1-3812 , 58.1-3813.1 , 58.1-3815 , 58.1-3816.2 , and 58.1-3818.1 through 58.1-3818.7 of the Code of Virginia and the third enactment clause of Chapter 858 of the 1972 Acts of Assembly as they were in effect immediately prior to the effective date of this act shall be given effect beginning 90 days after the nonappealable court order is issued.”

    Acts 2012, cc. 787 and 833, cl. 2 provides: “That the Department of Health, in conjunction with the Department of Education and the Department of Health Professionals, shall develop and implement policies for the recognition and treatment of anaphylaxis in the school setting. Such departments shall develop policies with input from, but not limited to, representatives of the following organizations and entities: local school boards, the Virginia Association of School Nurses, the Virginia Nurses Association, the Virginia Chapter of the American Academy of Pediatrics, the Medical Society of Virginia, and the Office of the Attorney General. Such departments shall identify and develop appropriate revisions to the “Virginia School Health Guidelines” related but not limited to (i) development of a plan for the issuance and implementation of oral or written orders or standing protocols; (ii) consideration of who may qualify as a prescriber for local school divisions, including local health department directors, operational medical directors, and school health directors; (iii) specification of training needs and requirements for the administration of epinephrine; (iv) appropriate liability protections; and (v) any issues requiring statutory or regulatory amendment. Such departments shall provide guidelines to the Superintendent of Public Instruction for dissemination by no later than July 1, 2012.”

    Acts 2013, c. 183, cl. 2 provides: “That the Board of Nursing shall promulgate regulations to implement the provisions of this act relating to medication administration training for the administration of epinephrine and glucagon.”

    Acts 2013, c. 267, cl. 2 provides: “That the Department of Behavioral Health and Developmental Services, in cooperation with the Department of Health, the Department of Health Professions, law-enforcement agencies, substance abuse recovery support organizations, and other stakeholders, shall conduct pilot programs on the administration of naloxone to counteract the effects of opiate overdose. The Department of Behavioral Health and Developmental Services shall evaluate, implement, and report results of such pilot programs to the General Assembly by December 1, 2014.”

    Acts 2017, cc. 55 and 168, cl. 3 provides: “That the Board of Pharmacy shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment [February 20, 2017].”

    Acts 2020, c. 853, cl. 2 provides: “That the Department of Health, in conjunction with the Department of Health Professions, shall develop policies and guidelines for the recognition and treatment of anaphylaxis in restaurants. Such Departments shall develop policies with input from, but not limited to, representatives of the following organizations and entities: the Virginia Nurses Association, the Virginia Chapter of the American Academy of Pediatrics, the Medical Society of Virginia, and the Office of the Attorney General. Such Departments shall consider (i) the issuance and implementation of oral or written orders or standing protocols; (ii) who may qualify as a prescriber; (iii) specification of training needs and requirements for the administration of epinephrine; (iv) appropriate storage, maintenance, and general oversight of epinephrine; (v) appropriate liability protections; and (vi) any issues requiring statutory or regulatory amendment. Such Departments shall provide such policies and guidelines to the Commissioner of Health by no later than July 1, 2021.”

    Effective October 1, 2021, “ § 45.2-531 , 45.2-579 , 45.2-863 or 45.2-910 ” was substituted for “ § 45.1-161.38, 45.1-161.101, 45.1-161.199, or 45.1-161.263” to conform to the recodification of Title 45.1 by Acts 2021, Sp. Sess. I, c. 387, at the direction of the Virginia Code Commission.

    Acts 2021, Sp. Sess. I, c. 508, cl. 2 provides: “That the Department of Education, in conjunction with the Department of Health, shall develop and implement policies for the administration of stock albuterol in public schools for inclusion in the Department of Education’s “Guidelines for Managing Asthma in Virginia Schools: A Team Approach” document. Such departments shall develop policies with input from representatives of local school boards, the Virginia Association of School Nurses, the Virginia Chapter of the American Academy of Pediatrics, and such other organizations and entities as such departments deem appropriate. Such departments shall identify and develop appropriate revisions to the “Virginia School Health Guidelines” relating to, but not limited to, the specification of training needs and requirements for the administration of albuterol. Such departments shall provide guidelines to the Superintendent of Public Instruction for dissemination no later than September 30, 2021.”

    Acts 2021, Sp. Sess. I, c. 514, cl. 2 provides: “That the provisions of this act shall become effective on July 1, 2022.”

    Acts 2021, Sp. Sess. I, c. 508, cl. 3 provides: “That the provisions of the first enactment of this act shall become effective on January 1, 2022.”

    This section was enacted, and a substantially identical section, § 54-276.9, was repealed, by Acts 1979, c. 713, effective Oct. 1, 1979, a companion act to Acts 1979, c. 711, which rewrote Title 32 as Title 32.1. Acts 1979, c. 729, amended former § 54-276.9 by adding a new subsection (a1). The Code Commission codified subsection (a1), added to § 54-276.9 by Acts 1979, c. 729, as a subsection in this § 8.01-225 as set out above. See § 30-152.

    Acts 2003, c. 18, which added subsection E, in cl. 3, as amended by Acts 2005, c. 426, cl. 2, provides: “That the provisions of this act shall expire on July 1, 2008.”

    Acts 2005, c. 426, which amended subsection E, in cl. 3, provides: “That the provisions of this act shall expire on July 1, 2008.”

    Acts 2006, c. 780, cl. 4, provides: “That all taxes and fees imposed in accordance with the provisions of any Code of Virginia section or any local charter that are repealed or otherwise amended by this act and that remain unpaid as of January 1, 2007, shall be subject to payment and collection in accordance with any administrative or judicial remedies existing prior or subsequent to this act’s enactment and any bad debt associated with such taxes and fees that occurs after January 1, 2007, shall be offset against revenues collected from the Communications Sales and Use Tax.”

    Acts 2006, c. 780, cl. 8, provides: “That the Auditor of Public Accounts (APA) shall determine the amount of revenues received by every county, city, and town for the fiscal year commencing July 1, 2005, and ending June 30, 2006, at rates adopted on or before January 1, 2006, for each of the following taxes and fees collected by the service providers: gross receipts tax in excess of 0.5%, local consumer utility tax, video program excise tax, cable franchise fee, and 911 taxes and fees, where they are collected. Based on each locality’s percentage of the total Fiscal Year 2006 receipts from these sources, the APA shall calculate each locality’s percentage share of future distributions of the Telecommunications Sales and Use Tax by the Department of Taxation. Local governments and service providers shall cooperate with the APA and provide information to him as requested. Every town with a population of less than 3,500, and any other county, city, or town whose annual audited financial statement cannot be completed by October 1, 2006, shall provide to the APA by that date a statement of its receipts during Fiscal Year 2006 from such telecommunications and cable sources, verified in writing by an independent certified public accountant. Any locality that fails to furnish the information required to make this calculation in a timely manner shall not be entitled to participate in the distribution of such tax, and its percentage share shall be disregarded in calculating the distribution to other localities. The APA or his agent shall not divulge any information acquired by him in the performances of his duties under this section that may identify specific service providers. The APA shall report his findings on a tax-by-tax basis to the chairmen of the House and Senate Finance Committees and the Department of Taxation no later than December 1, 2006. Further, the APA shall collect annually from local governments and service providers the necessary data to determine changes in: (i) market area and number of customers served, (ii) types of services available, (iii) population, and (iv) possible local reimbursement. The APA shall report his findings to the Chairmen of the House and Senate Committees on Finance no later than December 1 each year.”

    Acts 2006, c. 780, cl. 9, provides: “That if any of the provisions of this act are declared invalid in a nonappealable court order, then the remaining provisions of this act shall be invalid and the provisions of §§ 15.2-2108 , 56-468.1, 56-484.4, 56-484.5, 56-484.6, 56-484.12, 58.1-3812 , 58.1-3813.1 , 58.1-3815 , 58.1-3816.2 , and 58.1-3818.1 through 58.1-3818.7 of the Code of Virginia and the third enactment clause of Chapter 858 of the 1972 Acts of Assembly as they were in effect immediately prior to the effective date of this act shall be given effect beginning 90 days after the nonappealable court order is issued.”

    Acts 2012, cc. 787 and 833, cl. 2 provides: “That the Department of Health, in conjunction with the Department of Education and the Department of Health Professionals, shall develop and implement policies for the recognition and treatment of anaphylaxis in the school setting. Such departments shall develop policies with input from, but not limited to, representatives of the following organizations and entities: local school boards, the Virginia Association of School Nurses, the Virginia Nurses Association, the Virginia Chapter of the American Academy of Pediatrics, the Medical Society of Virginia, and the Office of the Attorney General. Such departments shall identify and develop appropriate revisions to the “Virginia School Health Guidelines” related but not limited to (i) development of a plan for the issuance and implementation of oral or written orders or standing protocols; (ii) consideration of who may qualify as a prescriber for local school divisions, including local health department directors, operational medical directors, and school health directors; (iii) specification of training needs and requirements for the administration of epinephrine; (iv) appropriate liability protections; and (v) any issues requiring statutory or regulatory amendment. Such departments shall provide guidelines to the Superintendent of Public Instruction for dissemination by no later than July 1, 2012.”

    Acts 2013, c. 183, cl. 2 provides: “That the Board of Nursing shall promulgate regulations to implement the provisions of this act relating to medication administration training for the administration of epinephrine and glucagon.”

    Acts 2013, c. 267, cl. 2 provides: “That the Department of Behavioral Health and Developmental Services, in cooperation with the Department of Health, the Department of Health Professions, law-enforcement agencies, substance abuse recovery support organizations, and other stakeholders, shall conduct pilot programs on the administration of naloxone to counteract the effects of opiate overdose. The Department of Behavioral Health and Developmental Services shall evaluate, implement, and report results of such pilot programs to the General Assembly by December 1, 2014.”

    Acts 2017, cc. 55 and 168, cl. 3 provides: “That the Board of Pharmacy shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment [February 20, 2017].”

    Acts 2020, c. 853, cl. 2 provides: “That the Department of Health, in conjunction with the Department of Health Professions, shall develop policies and guidelines for the recognition and treatment of anaphylaxis in restaurants. Such Departments shall develop policies with input from, but not limited to, representatives of the following organizations and entities: the Virginia Nurses Association, the Virginia Chapter of the American Academy of Pediatrics, the Medical Society of Virginia, and the Office of the Attorney General. Such Departments shall consider (i) the issuance and implementation of oral or written orders or standing protocols; (ii) who may qualify as a prescriber; (iii) specification of training needs and requirements for the administration of epinephrine; (iv) appropriate storage, maintenance, and general oversight of epinephrine; (v) appropriate liability protections; and (vi) any issues requiring statutory or regulatory amendment. Such Departments shall provide such policies and guidelines to the Commissioner of Health by no later than July 1, 2021.”

    Effective October 1, 2021, “ § 45.2-531 , 45.2-579 , 45.2-863 or 45.2-910 ” was substituted for “ § 45.1-161.38, 45.1-161.101, 45.1-161.199, or 45.1-161.263” to conform to the recodification of Title 45.1 by Acts 2021, Sp. Sess. I, c. 387, at the direction of the Virginia Code Commission.

    Acts 2021, Sp. Sess. I, c. 508, cl. 2 provides: “That the Department of Education, in conjunction with the Department of Health, shall develop and implement policies for the administration of stock albuterol in public schools for inclusion in the Department of Education’s “Guidelines for Managing Asthma in Virginia Schools: A Team Approach” document. Such departments shall develop policies with input from representatives of local school boards, the Virginia Association of School Nurses, the Virginia Chapter of the American Academy of Pediatrics, and such other organizations and entities as such departments deem appropriate. Such departments shall identify and develop appropriate revisions to the “Virginia School Health Guidelines” relating to, but not limited to, the specification of training needs and requirements for the administration of albuterol. Such departments shall provide guidelines to the Superintendent of Public Instruction for dissemination no later than September 30, 2021.”

    Acts 2021, Sp. Sess. I, c. 508, cl. 3 provides: “That the provisions of the first enactment of this act shall become effective on January 1, 2022.”

    Acts 2021, Sp. Sess. I, c. 514, cl. 2 provides: “That the provisions of this act shall become effective on July 1, 2022.”

    The 1999 amendments.

    The 1999 amendment by c. 570, in subsection A, deleted “and” preceding “such individual” in subdivision 6 and added subdivision 9.

    The 1999 amendment by c. 1000, divided former subsection A into present subsection A and subdivision A 1 by inserting the 1 designation preceding “In good faith”; inserted the 2 through 6 designations at the beginning of the former first through fifth paragraphs; deleted “Any person who” at the beginning of the present subdivisions A 2 through A 4; substituted “Is an” for “Any” in subdivision A 5, in present subdivision A 6, substituted “Has” for “Any person having,” and inserted “including, but not limited to, the use of an automated external defibrillator”, added present subdivision A 7, inserted the 8 designation at the beginning of the former sixth paragraph, and substituted “Is a” for “Any” preceding “volunteer”; deleted the subsection B1 designation preceding “Any licensed physician,” and added the last paragraph of subsection B; redesignated former subsection B2 as present subsection C, and added the present second paragraph; redesignated former subsection C as subsection D; in subsection D, deleted the former second paragraph, which read: “Any licensed physician who directs the provision of emergency medical services, as authorized by the State Board of Health, through a communications device shall not be liable for any civil damages for any act or omission resulting from the rendering of such emergency medical services unless such act or omission was the result of such physician’s gross negligence or willful misconduct,” and deleted the former last paragraph which read: “Any volunteer engaging in rescue or recovery work at a mine or any mine operator voluntarily providing personnel to engage in rescue or recovery work at a mine not owned or operated by such operator, shall not be liable for civil damages for acts or omissions resulting from the rendering of such rescue or recovery work in good faith unless such act or omission was the result of gross negligence or willful misconduct.”

    The 1999 amendment by c. 570, in subsection A, deleted “and” preceding “such individual” in subdivision 6 and added subdivision 9.

    The 1999 amendment by c. 1000, divided former subsection A into present subsection A and subdivision A 1 by inserting the 1 designation preceding “In good faith”; inserted the 2 through 6 designations at the beginning of the former first through fifth paragraphs; deleted “Any person who” at the beginning of the present subdivisions A 2 through A 4; substituted “Is an” for “Any” in subdivision A 5, in present subdivision A 6, substituted “Has” for “Any person having,” and inserted “including, but not limited to, the use of an automated external defibrillator”, added present subdivision A 7, inserted the 8 designation at the beginning of the former sixth paragraph, and substituted “Is a” for “Any” preceding “volunteer”; deleted the subsection B1 designation preceding “Any licensed physician,” and added the last paragraph of subsection B; redesignated former subsection B2 as present subsection C, and added the present second paragraph; redesignated former subsection C as subsection D; in subsection D, deleted the former second paragraph, which read: “Any licensed physician who directs the provision of emergency medical services, as authorized by the State Board of Health, through a communications device shall not be liable for any civil damages for any act or omission resulting from the rendering of such emergency medical services unless such act or omission was the result of such physician’s gross negligence or willful misconduct,” and deleted the former last paragraph which read: “Any volunteer engaging in rescue or recovery work at a mine or any mine operator voluntarily providing personnel to engage in rescue or recovery work at a mine not owned or operated by such operator, shall not be liable for civil damages for acts or omissions resulting from the rendering of such rescue or recovery work in good faith unless such act or omission was the result of gross negligence or willful misconduct.”

    The 2000 amendments.

    The 2000 amendment by c. 928 rewrote subdivision A 7; substituted “Is an” for “Any” at the beginning of present subdivision A 9; added the fifth undesignated paragraph in present subsection B; in the second paragraph of subsection D (now the first paragraph of subsection F), deleted “or” preceding “(iii)”, and added “or” and clause (iv) at the end of the paragraph.

    The 2000 amendment by c. 1064 substituted “service” for “system,” and substituted “§ 58.1-3813.1 ” for “§ 58.1-3813 ” in the next-to-last paragraph of subsection C.

    The 2000 amendment by c. 928 rewrote subdivision A 7; substituted “Is an” for “Any” at the beginning of present subdivision A 9; added the fifth undesignated paragraph in present subsection B; in the second paragraph of subsection D (now the first paragraph of subsection F), deleted “or” preceding “(iii)”, and added “or” and clause (iv) at the end of the paragraph.

    The 2000 amendment by c. 1064 substituted “service” for “system,” and substituted “§ 58.1-3813.1 ” for “§ 58.1-3813 ” in the next-to-last paragraph of subsection C.

    The 2003 amendments.

    The 2003 amendment by c. 18, effective March 5, 2003, added subsection E. For expiration date, see Editor’s note.

    The 2003 amendment by c. 978, effective April 2, 2003, deleted “Has attended and successfully completed a course in cardiopulmonary resuscitation which has been approved by the State Board of Health who” at the beginning of subdivision A 6; in subdivision A 7, substituted “Operates an” for “In compliance with § 32.1-111.14:1 registers an automated external defibrillator for use at the scene of an emergency, operates a registered” at the beginning, deleted “registered” following “operators or,” deleted “which are subsequently registered” preceding “shall be immune,” and substituted “an” for “a registered” following “omission in the use of;” in the last paragraph of subsection B, substituted “an” for “a registered” following “supervisor of,” and substituted “owner” for “registrant;” in the second paragraph of subsection D (now the first paragraph of subsection F), deleted “in compliance with § 32.1-111.14:1 ” at the end of clause (iv), substituted “owns” for “registers” at the beginning of clause (a), deleted “registered” following “operate” in clause (b), substituted “an” for “in accordance with the training required by § 32.1-111.14:1 , a registered” in clause (d); and added the last paragraph of subsection D (now the last paragraph of subsection F).

    The 2003 amendment by c. 1020, rewrote subdivision A 3, which formerly read: “In good faith and without compensation, administers epinephrine to an individual for whom an insect sting treatment kit has been prescribed shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if he has reason to believe that the individual receiving the injection is suffering or is about to suffer a life-threatening anaphylactic reaction.”

    The section is set out in the form above at the direction of the Virginia Code Commission.

    The 2003 amendment by c. 18, effective March 5, 2003, added subsection E. For expiration date, see Editor’s note.

    The 2003 amendment by c. 978, effective April 2, 2003, deleted “Has attended and successfully completed a course in cardiopulmonary resuscitation which has been approved by the State Board of Health who” at the beginning of subdivision A 6; in subdivision A 7, substituted “Operates an” for “In compliance with § 32.1-111.14:1 registers an automated external defibrillator for use at the scene of an emergency, operates a registered” at the beginning, deleted “registered” following “operators or,” deleted “which are subsequently registered” preceding “shall be immune,” and substituted “an” for “a registered” following “omission in the use of;” in the last paragraph of subsection B, substituted “an” for “a registered” following “supervisor of,” and substituted “owner” for “registrant;” in the second paragraph of subsection D (now the first paragraph of subsection F), deleted “in compliance with § 32.1-111.14:1 ” at the end of clause (iv), substituted “owns” for “registers” at the beginning of clause (a), deleted “registered” following “operate” in clause (b), substituted “an” for “in accordance with the training required by § 32.1-111.14:1 , a registered” in clause (d); and added the last paragraph of subsection D (now the last paragraph of subsection F).

    The 2003 amendment by c. 1020, rewrote subdivision A 3, which formerly read: “In good faith and without compensation, administers epinephrine to an individual for whom an insect sting treatment kit has been prescribed shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if he has reason to believe that the individual receiving the injection is suffering or is about to suffer a life-threatening anaphylactic reaction.”

    The section is set out in the form above at the direction of the Virginia Code Commission.

    The 2005 amendments.

    The 2005 amendment by c. 426 added “who, for the purposes of this section, are defined as any law-enforcement officer, firefighter, emergency medical personnel, or other public safety personnel functioning in a role identified by a federal, state, or local emergency response plan” to the end of subdivision E 4. For expiration date, see Editor’s note.

    The 2005 amendment by c. 426 added “who, for the purposes of this section, are defined as any law-enforcement officer, firefighter, emergency medical personnel, or other public safety personnel functioning in a role identified by a federal, state, or local emergency response plan” to the end of subdivision E 4. For expiration date, see Editor’s note.

    The 2006 amendments.

    The 2006 amendment by c. 780, effective January 1, 2007, substituted “§ 58.1-1730 ” for “§ 58.1-3813.1 ” in the fourth paragraph of subsection B; in subsection C, in the first paragraph, substituted “Any communications services provider as” for “Any provider of telecommunication service as,” “§ 58.1-647 ” for “§ 58.1-3812 ” and inserted “and any provider of Voice-over Internet Proticol service,” and added the second sentence in the second paragraph.

    The 2006 amendment by c. 780, effective January 1, 2007, substituted “§ 58.1-1730 ” for “§ 58.1-3813.1 ” in the fourth paragraph of subsection B; in subsection C, in the first paragraph, substituted “Any communications services provider as” for “Any provider of telecommunication service as,” “§ 58.1-647 ” for “§ 58.1-3812 ” and inserted “and any provider of Voice-over Internet Proticol service,” and added the second sentence in the second paragraph.

    The 2008 amendments.

    The 2008 amendment by c. 229, in subdivision A 1, inserted clause designations, added clause (ii), and deleted “therefrom” following “en route” in clause (iii); and in subsection F, added clause (v) and made related changes.

    The 2008 amendment by c. 229, in subdivision A 1, inserted clause designations, added clause (ii), and deleted “therefrom” following “en route” in clause (iii); and in subsection F, added clause (v) and made related changes.

    The 2012 amendments.

    The 2012 amendments by cc. 787 and 833 are identical, and added subdivision A 10.

    The 2012 amendments by cc. 787 and 833 are identical, and added subdivision A 10.

    The 2013 amendments.

    The 2013 amendment by c. 183, throughout the section, substituted “in the Commonwealth” for “in this Commonwealth”; deleted “any” preceding “governmental agency” in subdivision A 4; added subdivisions A 11 and A 12; and made minor stylistic changes. Subdivisions A 11 and A 12 were subsequently renumbered as A 12 and A 13 at the direction of the Virginia Code Commission.

    The 2013 amendment by c. 267 added subdivision A 11. Subdivision A 11 was subsequently renumbered as A 14 at the direction of the Virginia Code Commission.

    The 2013 amendment by c. 300, substituted “AED” for “automated external defibrillator” “AEDs” for “automated external defibrillators,” and “the Commonwealth” for “this Commonwealth” throughout the section; and in subdivision A 6, inserted “(CPR)” and “(AED)” near the beginning; added subdivision A 8 and redesignated accordingly; and substituted “CPR” for “cardiopulmonary resuscitation (CPR)” in the first occurrence in the last paragraph of subsection F.

    The 2013 amendments by c. 336, effective March 14, 2013, and c. 617, effective March 20, 2013, are identical, and inserted “an employee of a local governing body, or an employee of a local health department who is” in subdivision A 11.

    The 2013 amendment by c. 183, throughout the section, substituted “in the Commonwealth” for “in this Commonwealth”; deleted “any” preceding “governmental agency” in subdivision A 4; added subdivisions A 11 and A 12; and made minor stylistic changes. Subdivisions A 11 and A 12 were subsequently renumbered as A 12 and A 13 at the direction of the Virginia Code Commission.

    The 2013 amendment by c. 267 added subdivision A 11. Subdivision A 11 was subsequently renumbered as A 14 at the direction of the Virginia Code Commission.

    The 2013 amendment by c. 300, substituted “AED” for “automated external defibrillator” “AEDs” for “automated external defibrillators,” and “the Commonwealth” for “this Commonwealth” throughout the section; and in subdivision A 6, inserted “(CPR)” and “(AED)” near the beginning; added subdivision A 8 and redesignated accordingly; and substituted “CPR” for “cardiopulmonary resuscitation (CPR)” in the first occurrence in the last paragraph of subsection F.

    The 2013 amendments by c. 336, effective March 14, 2013, and c. 617, effective March 20, 2013, are identical, and inserted “an employee of a local governing body, or an employee of a local health department who is” in subdivision A 11.

    The 2014 amendments.

    The 2014 amendment by c. 468 added subdivision A 9 and redesignated the remaining subdivisions accordingly.

    The 2014 amendment by c. 468 added subdivision A 9 and redesignated the remaining subdivisions accordingly.

    The 2015 amendments.

    The 2015 amendment by c. 340 added the last sentence in subdivision A 1.

    The 2015 amendment by c. 387 added subdivision A 13; and redesignated former subdivisions A 13 through A 15 as subdivisions A 14 through A 16.

    The 2015 amendments by cc. 502 and 503 are identical, and substituted “provider who holds a valid certificate issued by the Commissioner of Health” for “technician certified by the Board of Health” in subdivision A 3; substituted “emergency medical services agency” for “rescue or emergency squad” in subdivision A 4; substituted “services provider” for “care attendant or technician” in subdivision A 5; in subsection B, substituted “an emergency medical services agency that holds a valid license as an emergency medical services agency issued by the Commissioner of Health” for “a licensed emergency medical services agency in the Commonwealth” in the first paragraph, inserted “medical” preceding “services agency” in the second paragraph, and substituted “provider” for “technician” preceding “shall” in the third paragraph; in subsection F, substituted “emergency medical services or first aid services” for “emergency medical technician service or first aid service” in the first paragraph and “‘emergency medical services provider’ shall include” for “an ‘emergency medical care attendant or technician’ shall be deemed to include” in the second paragraph; and made stylistic changes.

    The 2015 amendments by cc. 725, 732 and 752, effective April 15, 2015, are identical, and rewrote subdivision A 15, which read “In good faith and without compensation, administers naloxone in an emergency to an individual who is experiencing or is about to experience a life-threatening opiate overdose shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if such administering person is a participant in a pilot program conducted by the Department of Behavioral Health and Developmental Services on the administration of naloxone for the purpose of counteracting the effects of opiate overdose.”; deleted expired subsection E and redesignated former subsection F as subsection E; and made stylistic changes.

    The 2015 amendment by c. 340 added the last sentence in subdivision A 1.

    The 2015 amendment by c. 387 added subdivision A 13; and redesignated former subdivisions A 13 through A 15 as subdivisions A 14 through A 16.

    The 2015 amendments by cc. 502 and 503 are identical, and substituted “provider who holds a valid certificate issued by the Commissioner of Health” for “technician certified by the Board of Health” in subdivision A 3; substituted “emergency medical services agency” for “rescue or emergency squad” in subdivision A 4; substituted “services provider” for “care attendant or technician” in subdivision A 5; in subsection B, substituted “an emergency medical services agency that holds a valid license as an emergency medical services agency issued by the Commissioner of Health” for “a licensed emergency medical services agency in the Commonwealth” in the first paragraph, inserted “medical” preceding “services agency” in the second paragraph, and substituted “provider” for “technician” preceding “shall” in the third paragraph; in subsection F, substituted “emergency medical services or first aid services” for “emergency medical technician service or first aid service” in the first paragraph and “‘emergency medical services provider’ shall include” for “an ‘emergency medical care attendant or technician’ shall be deemed to include” in the second paragraph; and made stylistic changes.

    The 2015 amendments by cc. 725, 732 and 752, effective April 15, 2015, are identical, and rewrote subdivision A 15, which read “In good faith and without compensation, administers naloxone in an emergency to an individual who is experiencing or is about to experience a life-threatening opiate overdose shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if such administering person is a participant in a pilot program conducted by the Department of Behavioral Health and Developmental Services on the administration of naloxone for the purpose of counteracting the effects of opiate overdose.”; deleted expired subsection E and redesignated former subsection F as subsection E; and made stylistic changes.

    The 2016 amendments.

    The 2016 amendment by c. 144, in subdivision A 11, inserted “(i)” and “(ii) a school for students with disabilities as defined in § 22.1-319 licensed by the Board of Education, or (iii) a private school accredited pursuant to § 22.1-19 as administered by the Virginia Council for Private Education and is” in the first sentence and substituted “such employee” for “employee of a school board” and inserted “or school” preceding “employing him” in the last sentence; and in subdivision A 13, substituted “is accredited pursuant § 22.1-19 as administered” for “complies with the accreditation requirements set forth in § 22.1-19 and is accredited.”

    The 2016 amendment by c. 144, in subdivision A 11, inserted “(i)” and “(ii) a school for students with disabilities as defined in § 22.1-319 licensed by the Board of Education, or (iii) a private school accredited pursuant to § 22.1-19 as administered by the Virginia Council for Private Education and is” in the first sentence and substituted “such employee” for “employee of a school board” and inserted “or school” preceding “employing him” in the last sentence; and in subdivision A 13, substituted “is accredited pursuant § 22.1-19 as administered” for “complies with the accreditation requirements set forth in § 22.1-19 and is accredited.”

    The 2017 amendments.

    The 2017 amendments by c. 55, effective February 20, 2017, and c. 168, effective February 23, 2017, are identical, and in subdivision A 16, inserted “or Y” preceding “of § 54.1-3408.”

    The 2017 amendments by cc. 294 and 304 are identical, and inserted subdivisions A 12 and A 15, and renumbered the remaining subdivisions accordingly.

    The 2017 amendment by c. 713 added subdivision A 19.

    The 2017 amendment by c. 811, in subdivision A 11, inserted “or, in the case of a school board employee, with the insertion or reinsertion of an insulin pump or any of its parts pursuant to subsection B of § 22.1-274.01:1.”

    The 2017 amendments by c. 55, effective February 20, 2017, and c. 168, effective February 23, 2017, are identical, and in subdivision A 16, inserted “or Y” preceding “of § 54.1-3408.”

    The 2017 amendments by cc. 294 and 304 are identical, and inserted subdivisions A 12 and A 15, and renumbered the remaining subdivisions accordingly.

    The 2017 amendment by c. 713 added subdivision A 19.

    The 2017 amendment by c. 811, in subdivision A 11, inserted “or, in the case of a school board employee, with the insertion or reinsertion of an insulin pump or any of its parts pursuant to subsection B of § 22.1-274.01:1.”

    The 2018 amendments.

    The 2018 amendment by c. 247 added subdivision A 16, and renumbered the remaining subdivisions accordingly.

    The 2018 amendment by c. 247 added subdivision A 16, and renumbered the remaining subdivisions accordingly.

    The 2020 amendments.

    The 2020 amendments by cc. 459 and 460 are identical, and added subdivision A 21, which was renumbered as subdivision A 23 at the direction of the Virginia Code Commission.

    The 2020 amendment by c. 556 added subdivision A 21, which was renumbered as subdivision A 24 at the direction of the Virginia Code Commission.

    The 2020 amendment by c. 853 inserted subdivision A 17 and redesignated accordingly.

    The 2020 amendment by c. 924 added subdivision A 21.

    The 2020 amendment by c. 1095 added subdivision A 20, which was renumbered as subdivision A 21.

    The section above has been set out as directed by the Virginia Code Commission.

    The 2020 amendments by cc. 459 and 460 are identical, and added subdivision A 21, which was renumbered as subdivision A 23 at the direction of the Virginia Code Commission.

    The 2020 amendment by c. 556 added subdivision A 21, which was renumbered as subdivision A 24 at the direction of the Virginia Code Commission.

    The 2020 amendment by c. 853 inserted subdivision A 17 and redesignated accordingly.

    The 2020 amendment by c. 924 added subdivision A 21.

    The 2020 amendment by c. 1095 added subdivision A 20, which was renumbered as subdivision A 21.

    The section above has been set out as directed by the Virginia Code Commission.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 508, effective January 1, 2022, in subdivision A 23, substituted “the local health director” for “a prescriber,” inserted “and valved holding chambers” and “and a valved holding chamber.”

    The 2021 amendment by Sp. Sess. I, c. 508, effective January 1, 2022, in subdivision A 23, substituted “the local health director” for “a prescriber,” inserted “and valved holding chambers” and “and a valved holding chamber.”

    The 2021 amendment by Sp. Sess. I, c. 514, effective July 1, 2022, in subdivision A 9, inserted clause (v) and made stylistic changes.

    CASE NOTES

    Common law Good Samaritan doctrine has been accepted in Virginia and therefore applies to the federal government under the Federal Tort Claims Act. Creasy v. United States, 645 F. Supp. 853, 1986 U.S. Dist. LEXIS 19030 (W.D. Va. 1986).

    Volunteers are normally liable for negligence. —

    The enactment of this section, which exempts from civil liability any person who renders emergency care or assistance in good faith without compensation, indicates that volunteers are normally liable for negligence in Virginia. Creasy v. United States, 645 F. Supp. 853, 1986 U.S. Dist. LEXIS 19030 (W.D. Va. 1986).

    § 8.01-225. (Effective July 1, 2022) Persons rendering emergency care, obstetrical services exempt from liability.

    1. Any person who:
      1. In good faith, renders emergency care or assistance, without compensation, to any ill or injured person (i) at the scene of an accident, fire, or any life-threatening emergency; (ii) at a location for screening or stabilization of an emergency medical condition arising from an accident, fire, or any life-threatening emergency; or (iii) en route to any hospital, medical clinic, or doctor’s office, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such care or assistance. For purposes of this subdivision, emergency care or assistance includes the forcible entry of a motor vehicle in order to remove an unattended minor at risk of serious bodily injury or death, provided the person has attempted to contact a law-enforcement officer, as defined in § 9.1-101 , a firefighter, as defined in § 65.2-102 , emergency medical services personnel, as defined in § 32.1-111.1 , or an emergency 911 system, if feasible under the circumstances.
      2. In the absence of gross negligence, renders emergency obstetrical care or assistance to a female in active labor who has not previously been cared for in connection with the pregnancy by such person or by another professionally associated with such person and whose medical records are not reasonably available to such person shall not be liable for any civil damages for acts or omissions resulting from the rendering of such emergency care or assistance. The immunity herein granted shall apply only to the emergency medical care provided.
      3. In good faith and without compensation, including any emergency medical services provider who holds a valid certificate issued by the Commissioner of Health, administers epinephrine in an emergency to an individual shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if such person has reason to believe that the individual receiving the injection is suffering or is about to suffer a life-threatening anaphylactic reaction.
      4. Provides assistance upon request of any police agency, fire department, emergency medical services agency, or governmental agency in the event of an accident or other emergency involving the use, handling, transportation, transmission, or storage of liquefied petroleum gas, liquefied natural gas, hazardous material, or hazardous waste as defined in § 10.1-1400 or regulations of the Virginia Waste Management Board shall not be liable for any civil damages resulting from any act of commission or omission on his part in the course of his rendering such assistance in good faith.
      5. Is an emergency medical services provider possessing a valid certificate issued by authority of the State Board of Health who in good faith renders emergency care or assistance, whether in person or by telephone or other means of communication, without compensation, to any injured or ill person, whether at the scene of an accident, fire, or any other place, or while transporting such injured or ill person to, from, or between any hospital, medical facility, medical clinic, doctor’s office, or other similar or related medical facility, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such emergency care, treatment, or assistance, including but in no way limited to acts or omissions which involve violations of State Department of Health regulations or any other state regulations in the rendering of such emergency care or assistance.
      6. In good faith and without compensation, renders or administers emergency cardiopulmonary resuscitation (CPR); cardiac defibrillation, including, but not limited to, the use of an automated external defibrillator (AED); or other emergency life-sustaining or resuscitative treatments or procedures which have been approved by the State Board of Health to any sick or injured person, whether at the scene of a fire, an accident, or any other place, or while transporting such person to or from any hospital, clinic, doctor’s office, or other medical facility, shall be deemed qualified to administer such emergency treatments and procedures and shall not be liable for acts or omissions resulting from the rendering of such emergency resuscitative treatments or procedures.
      7. Operates an AED at the scene of an emergency, trains individuals to be operators of AEDs, or orders AEDs, shall be immune from civil liability for any personal injury that results from any act or omission in the use of an AED in an emergency where the person performing the defibrillation acts as an ordinary, reasonably prudent person would have acted under the same or similar circumstances, unless such personal injury results from gross negligence or willful or wanton misconduct of the person rendering such emergency care.
      8. Maintains an AED located on real property owned or controlled by such person shall be immune from civil liability for any personal injury that results from any act or omission in the use in an emergency of an AED located on such property unless such personal injury results from gross negligence or willful or wanton misconduct of the person who maintains the AED or his agent or employee.
      9. Is an employee of a school board or of a local health department approved by the local governing body to provide health services pursuant to § 22.1-274 who, while on school property or at a school-sponsored event, (i) renders emergency care or assistance to any sick or injured person; (ii) renders or administers emergency cardiopulmonary resuscitation (CPR); cardiac defibrillation, including, but not limited to, the use of an automated external defibrillator (AED); or other emergency life-sustaining or resuscitative treatments or procedures that have been approved by the State Board of Health to any sick or injured person; (iii) operates an AED, trains individuals to be operators of AEDs, or orders AEDs; (iv) maintains an AED; or (v) renders care in accordance with a seizure management and action plan pursuant to § 22.1-274.6, shall not be liable for civil damages for ordinary negligence in acts or omissions on the part of such employee while engaged in the acts described in this subdivision.
      10. Is a volunteer in good standing and certified to render emergency care by the National Ski Patrol System, Inc., who, in good faith and without compensation, renders emergency care or assistance to any injured or ill person, whether at the scene of a ski resort rescue, outdoor emergency rescue, or any other place or while transporting such injured or ill person to a place accessible for transfer to any available emergency medical system unit, or any resort owner voluntarily providing a ski patroller employed by him to engage in rescue or recovery work at a resort not owned or operated by him, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such emergency care, treatment, or assistance, including but not limited to acts or omissions which involve violations of any state regulation or any standard of the National Ski Patrol System, Inc., in the rendering of such emergency care or assistance, unless such act or omission was the result of gross negligence or willful misconduct.
      11. Is an employee of (i) a school board, (ii) a school for students with disabilities as defined in § 22.1-319 licensed by the Board of Education, or (iii) a private school accredited pursuant to § 22.1-19 as administered by the Virginia Council for Private Education and is authorized by a prescriber and trained in the administration of insulin and glucagon, who, upon the written request of the parents as defined in § 22.1-1, assists with the administration of insulin or, in the case of a school board employee, with the insertion or reinsertion of an insulin pump or any of its parts pursuant to subsection B of § 22.1-274.01:1 or administers glucagon to a student diagnosed as having diabetes who requires insulin injections during the school day or for whom glucagon has been prescribed for the emergency treatment of hypoglycemia shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if the insulin is administered according to the child’s medication schedule or such employee has reason to believe that the individual receiving the glucagon is suffering or is about to suffer life-threatening hypoglycemia. Whenever any such employee is covered by the immunity granted herein, the school board or school employing him shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such insulin or glucagon treatment.
      12. Is an employee of a public institution of higher education or a private institution of higher education who is authorized by a prescriber and trained in the administration of insulin and glucagon, who assists with the administration of insulin or administers glucagon to a student diagnosed as having diabetes who requires insulin injections or for whom glucagon has been prescribed for the emergency treatment of hypoglycemia shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if the insulin is administered according to the student’s medication schedule or such employee has reason to believe that the individual receiving the glucagon is suffering or is about to suffer life-threatening hypoglycemia. Whenever any employee is covered by the immunity granted in this subdivision, the institution shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such insulin or glucagon treatment.
      13. Is a school nurse, an employee of a school board, an employee of a local governing body, or an employee of a local health department who is authorized by a prescriber and trained in the administration of epinephrine and who provides, administers, or assists in the administration of epinephrine to a student believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
      14. Is an employee of a school for students with disabilities, as defined in § 22.1-319 and licensed by the Board of Education, or an employee of a private school that is accredited pursuant to § 22.1-19 as administered by the Virginia Council for Private Education who is authorized by a prescriber and trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a student believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment. Whenever any employee is covered by the immunity granted in this subdivision, the school shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from such administration or assistance.
      15. Is an employee of a public institution of higher education or a private institution of higher education who is authorized by a prescriber and trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a student believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment. Whenever any employee is covered by the immunity granted in this subdivision, the institution shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from such administration or assistance.
      16. Is an employee of an organization providing outdoor educational experiences or programs for youth who is authorized by a prescriber and trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a participant in the outdoor experience or program for youth believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment. Whenever any employee is covered by the immunity granted in this subdivision, the organization shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from such administration or assistance.
      17. Is an employee of a restaurant licensed pursuant to Chapter 3 (§ 35.1-18 et seq.) of Title 35.1, is authorized by a prescriber and trained in the administration of epinephrine, and provides, administers, or assists in the administration of epinephrine to an individual believed in good faith to be having an anaphylactic reaction on the premises of the restaurant at which the employee is employed, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
      18. Is an employee of a provider licensed by the Department of Behavioral Health and Developmental Services, or provides services pursuant to a contract with a provider licensed by the Department of Behavioral Health and Developmental Services, who has been trained in the administration of insulin and glucagon and who administers or assists with the administration of insulin or administers glucagon to a person diagnosed as having diabetes who requires insulin injections or for whom glucagon has been prescribed for the emergency treatment of hypoglycemia in accordance with § 54.1-3408 shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if the insulin is administered in accordance with the prescriber’s instructions or such person has reason to believe that the individual receiving the glucagon is suffering or is about to suffer life-threatening hypoglycemia. Whenever any employee of a provider licensed by the Department of Behavioral Health and Developmental Services or a person who provides services pursuant to a contract with a provider licensed by the Department of Behavioral Health and Developmental Services is covered by the immunity granted herein, the provider shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such insulin or glucagon treatment.
      19. Is an employee of a provider licensed by the Department of Behavioral Health and Developmental Services, or provides services pursuant to a contract with a provider licensed by the Department of Behavioral Health and Developmental Services, who has been trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a person believed in good faith to be having an anaphylactic reaction in accordance with the prescriber’s instructions shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
      20. In good faith prescribes, dispenses, or administers naloxone or other opioid antagonist used for overdose reversal in an emergency to an individual who is believed to be experiencing or about to experience a life-threatening opiate overdose shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if acting in accordance with the provisions of subsection X or Y of § 54.1-3408 or in his role as a member of an emergency medical services agency.
      21. In good faith administers naloxone or other opioid antagonist used for overdose reversal to a person who is believed to be experiencing or about to experience a life-threatening opioid overdose in accordance with the provisions of subsection Z of § 54.1-3408 shall not be liable for any civil damages for any personal injury that results from any act or omission in the administration of naloxone or other opioid antagonist used for overdose reversal, unless such act or omission was the result of gross negligence or willful and wanton misconduct.
      22. Is an employee of a school board, school for students with disabilities as defined in § 22.1-319 licensed by the Board of Education, or private school accredited pursuant to § 22.1-19 as administered by the Virginia Council for Private Education who is trained in the administration of injected medications for the treatment of adrenal crisis resulting from a condition causing adrenal insufficiency and who administers or assists in the administration of such medications to a student diagnosed with a condition causing adrenal insufficiency when the student is believed to be experiencing or about to experience an adrenal crisis pursuant to a written order or standing protocol issued by a prescriber within the course of his professional practice and in accordance with the prescriber’s instructions shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
      23. Is a school nurse, an employee of a school board, an employee of a local governing body, or an employee of a local health department who is authorized by the local health director and trained in the administration of albuterol inhalers and valved holding chambers or nebulized albuterol and who provides, administers, or assists in the administration of an albuterol inhaler and a valved holding chamber or nebulized albuterol for a student believed in good faith to be in need of such medication, or is the prescriber of such medication, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
      24. Is an employee of a public place, as defined in § 15.2-2820 , who is authorized by a prescriber and trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a person present in the public place believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment. Whenever any employee is covered by the immunity granted in this subdivision, the organization shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from such administration or assistance.
    2. Any licensed physician serving without compensation as the operational medical director for an emergency medical services agency that holds a valid license as an emergency medical services agency issued by the Commissioner of Health shall not be liable for any civil damages for any act or omission resulting from the rendering of emergency medical services in good faith by the personnel of such licensed agency unless such act or omission was the result of such physician’s gross negligence or willful misconduct.Any person serving without compensation as a dispatcher for any licensed public or nonprofit emergency medical services agency in the Commonwealth shall not be liable for any civil damages for any act or omission resulting from the rendering of emergency services in good faith by the personnel of such licensed agency unless such act or omission was the result of such dispatcher’s gross negligence or willful misconduct.Any individual, certified by the State Office of Emergency Medical Services as an emergency medical services instructor and pursuant to a written agreement with such office, who, in good faith and in the performance of his duties, provides instruction to persons for certification or recertification as a certified basic life support or advanced life support emergency medical services provider shall not be liable for any civil damages for acts or omissions on his part directly relating to his activities on behalf of such office unless such act or omission was the result of such emergency medical services instructor’s gross negligence or willful misconduct.Any licensed physician serving without compensation as a medical advisor to an E-911 system in the Commonwealth shall not be liable for any civil damages for any act or omission resulting from rendering medical advice in good faith to establish protocols to be used by the personnel of the E-911 service, as defined in § 58.1-1730 , when answering emergency calls unless such act or omission was the result of such physician’s gross negligence or willful misconduct.Any licensed physician who directs the provision of emergency medical services, as authorized by the State Board of Health, through a communications device shall not be liable for any civil damages for any act or omission resulting from the rendering of such emergency medical services unless such act or omission was the result of such physician’s gross negligence or willful misconduct.Any licensed physician serving without compensation as a supervisor of an AED in the Commonwealth shall not be liable for any civil damages for any act or omission resulting from rendering medical advice in good faith to the owner of the AED relating to personnel training, local emergency medical services coordination, protocol approval, AED deployment strategies, and equipment maintenance plans and records unless such act or omission was the result of such physician’s gross negligence or willful misconduct.
    3. Any communications services provider, as defined in § 58.1-647 , including mobile service, and any provider of Voice-over-Internet Protocol service, in the Commonwealth shall not be liable for any civil damages for any act or omission resulting from rendering such service with or without charge related to emergency calls unless such act or omission was the result of such service provider’s gross negligence or willful misconduct.Any volunteer engaging in rescue or recovery work at a mine, or any mine operator voluntarily providing personnel to engage in rescue or recovery work at a mine not owned or operated by such operator, shall not be liable for civil damages for acts or omissions resulting from the rendering of such rescue or recovery work in good faith unless such act or omission was the result of gross negligence or willful misconduct. For purposes of this subsection, “Voice-over-Internet Protocol service” or “VoIP service” means any Internet protocol-enabled services utilizing a broadband connection, actually originating or terminating in Internet Protocol from either or both ends of a channel of communication offering real time, multidirectional voice functionality, including, but not limited to, services similar to traditional telephone service.
    4. Nothing contained in this section shall be construed to provide immunity from liability arising out of the operation of a motor vehicle.
    5. For the purposes of this section, “compensation” shall not be construed to include (i) the salaries of police, fire, or other public officials or personnel who render such emergency assistance; (ii) the salaries or wages of employees of a coal producer engaging in emergency medical services or first aid services pursuant to the provisions of § 45.2-531 , 45.2-579 , 45.2-863 or 45.2-910 ; (iii) complimentary lift tickets, food, lodging, or other gifts provided as a gratuity to volunteer members of the National Ski Patrol System, Inc., by any resort, group, or agency; (iv) the salary of any person who (a) owns an AED for the use at the scene of an emergency, (b) trains individuals, in courses approved by the Board of Health, to operate AEDs at the scene of emergencies, (c) orders AEDs for use at the scene of emergencies, or (d) operates an AED at the scene of an emergency; or (v) expenses reimbursed to any person providing care or assistance pursuant to this section. For the purposes of this section, “emergency medical services provider” shall include a person licensed or certified as such or its equivalent by any other state when he is performing services that he is licensed or certified to perform by such other state in caring for a patient in transit in the Commonwealth, which care originated in such other state. Further, the public shall be urged to receive training on how to use CPR and an AED in order to acquire the skills and confidence to respond to emergencies using both CPR and an AED.

    History. Code 1950, § 54-276.9; 1962, c. 449; 1964, c. 568; 1968, c. 796; 1972, c. 578; 1975, c. 508; 1977, c. 441; 1978, cc. 94, 707; 1979, cc. 713, 729; 1980, c. 419; 1983, c. 72; 1984, cc. 493, 577; 1987, cc. 260, 382; 1990, c. 898; 1996, c. 899; 1997, cc. 334, 809; 1998, cc. 493, 500; 1999, cc. 570, 1000; 2000, cc. 928, 1064; 2003, cc. 18, 978, 1020; 2005, c. 426; 2006, c. 780; 2008, c. 229; 2012, cc. 787, 833; 2013, cc. 183, 267, 300, 336, 617; 2014, c. 468; 2015, cc. 340, 387, 502, 503, 725, 732, 752; 2016, c. 144; 2017 cc. 55, 168; 2017, cc. 55, 168, 294, 304, 713, 811; 2018, c. 247; 2020, cc. 459, 460, 556, 853, 924, 1095; 2021, Sp. Sess. I, c. 508.

    Section set out twice.

    The section above is effective July 1, 2022. For the version of this section effective until July 1, 2022, see the preceding section, also numbered § 8.01-225 .

    § 8.01-225.01. Certain immunity for health care providers during disasters under specific circumstances.

    1. In the absence of gross negligence or willful misconduct, any health care provider who responds to a disaster by delivering health care to persons injured in such disaster shall be immune from civil liability for any injury or wrongful death arising from abandonment by such health care provider of any person to whom such health care provider owes a duty to provide health care when (i) a state or local emergency has been or is subsequently declared; and (ii) the provider was unable to provide the requisite health care to the person to whom he owed such duty of care as a result of the provider’s voluntary or mandatory response to the relevant disaster.
    2. In the absence of gross negligence or willful misconduct, any hospital or other entity credentialing health care providers to deliver health care in response to a disaster shall be immune from civil liability for any cause of action arising out of such credentialing or granting of practice privileges if (i) a state or local emergency has been or is subsequently declared and (ii) the hospital has followed procedures for such credentialing and granting of practice privileges that are consistent with the applicable standards of an approved national accrediting organization for granting emergency practice privileges.
    3. For the purposes of this section:“Approved national accrediting organization” means an organization granted authority by the Centers for Medicare and Medicaid Services to ensure compliance with Medicare conditions of participation pursuant to § 1865 of Title XVIII of the Social Security Act (42 U.S.C. § 1395bb);“Disaster” means any “disaster,” “emergency,” or “major disaster” as those terms are used and defined in § 44-146.16; and“Health care provider” means those professions defined as such in § 8.01-581.1 .
    4. The immunity provided by this section shall be in addition to, and shall not be in lieu of, any immunities provided in other state or federal law, including, but not limited to, §§ 8.01-225 and 44-146.23.

    History. 2003, c. 507; 2008, cc. 121, 157; 2014, c. 320.

    The 2008 amendments.

    The 2008 amendments by cc. 121 and 157 are identical, and deleted “man-made” preceding “disaster” three times in subsection A and once in subsection B; and in subsection D, inserted the paragraph defining “Disaster” and deleted the former paragraph defining “Man-made disaster.”

    The 2014 amendments.

    The 2014 amendment by c. 320 in subsection B substituted “the applicable standards of an approved national accrediting organization” for “the Joint Commission on Accreditation of Healthcare Organizations’ standards”; and in subsection C added the definition of “Approved national accrediting organization.”

    § 8.01-225.02. Certain liability protection for health care providers during disasters.

    1. In the absence of gross negligence or willful misconduct, any health care provider who responds to a disaster shall not be liable for any injury or wrongful death of any person arising from the delivery or withholding of health care when (i) a state or local emergency has been or is subsequently declared in response to such disaster, and (ii) the emergency and subsequent conditions caused a lack of resources, attributable to the disaster, rendering the health care provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency and which resulted in the injury or wrongful death at issue.
    2. For purposes of this section:“Disaster” means any “disaster,” “emergency,” or “major disaster” as those terms are used and defined in § 44-146.16; and“Health care provider” has the same definition as provided in § 8.01-581.1 .

    History. 2008, cc. 121, 157.

    Law Review.

    For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

    § 8.01-225.03. Certain immunity for certain hospices, home care organizations, private providers, assisted living facilities, and adult day care centers during a disaster under specific circumstances.

    1. As used in this section:“Disaster” or “emergency” means a public health emergency related to the COVID-19 virus declared by the Governor pursuant to § 44-146.17 and set forth in Executive Order 51 (2020) on March 12, 2020.
    2. In the absence of gross negligence or willful misconduct, any (i) hospice licensed pursuant to § 32.1-162.3 , (ii) home care organization licensed pursuant to § 32.1-162.9 , (iii) private provider licensed by the Department of Behavioral Health and Developmental Services pursuant to Article 2 (§ 37.2-403 et seq.) of Chapter 4 of Title 37.2, (iv) assisted living facility licensed pursuant to § 63.2-1701, or (v) adult day care center licensed pursuant to § 63.2-1701 that delivers care to or withholds care from a patient, resident, or person receiving services who is diagnosed as being or is believed to be infected with the COVID-19 virus shall not be liable for any injury or wrongful death of such patient, resident, or person receiving services arising from the delivery or withholding of care when the emergency and subsequent conditions caused by the emergency result in a lack of resources, attributable to the disaster, that render such hospice, home care organization, private provider licensed by the Department of Behavioral Health and Developmental Services, assisted living facility, or adult day care center unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency and that resulted in the injury or wrongful death at issue.
    3. The immunity provided by this section shall be in addition to, and not be in lieu of, any immunities provided in other state or federal law, including §§ 8.01-225 and 44-146.23.
    4. The immunity provided by this section shall only apply to causes of action arising between March 12, 2020, and such time as the declaration of a state of emergency related to the COVID-19 virus set forth in Executive Order 51 (2020) is no longer in effect.

    History. 2020, Sp. Sess. I, cc. 6, 7.

    Effective date.

    This section is effective October 13, 2020, by emergency.

    § 8.01-225.1. Immunity for team physicians.

    Any physician, surgeon or chiropractor licensed to practice by the Board of Medicine in the Commonwealth who, in the absence of gross negligence or willful misconduct, renders emergency medical care or emergency treatment to a participant in an athletic event sponsored by a public, private or religious elementary, middle or high school while acting without compensation as a team physician, shall not be liable for civil damages resulting from any act or omission related to such care or treatment.

    History. 1989, c. 436; 1993, c. 702; 2005, c. 928.

    The 2005 amendments.

    The 2005 amendment by c. 928 substituted “religious” for “parochial” and made a minor stylistic change.

    § 8.01-225.2. Immunity for those rendering emergency care to animals.

    Any person, including a person licensed to practice veterinary medicine, who in good faith and without compensation renders emergency care or treatment to an injured animal at the scene of an emergency or accident shall not be liable for any injuries to such animals resulting from the rendering of such care or treatment.

    History. 1998, c. 669.

    § 8.01-225.3. Immunity for volunteer first responders en route to an emergency.

    Notwithstanding any other provision of law, no volunteer firefighter or volunteer emergency medical services personnel shall be liable for any injury to persons or property arising out of the operation of an emergency vehicle as defined in § 46.2-920 when such volunteer is en route to respond to a fire or to render emergency care or assistance to any ill or injured person at the scene of an accident, fire, or life-threatening emergency and the emergency vehicle displays warning lights as provided in § 46.2-1022 or 46.2-1023 and sounds a siren, exhaust whistle, or air horn, unless such injury results from gross negligence or willful or wanton misconduct. The immunity provided by this section shall be in addition to, not in lieu of, any other applicable immunity provided by state or federal law, including § 2.2-3605 or 27-6.02 .

    History. 2015, c. 417.

    Editor’s note.

    At the direction of the Virginia Code Commission, the reference to § 27-6.02 was substituted for a reference to § 27-23.6 to conform to Acts 2015, cc. 502 and 503.

    § 8.01-226. Duty of care to law-enforcement officers, firefighters, etc.

    1. An owner or occupant of real property containing premises normally open to the public shall, with respect to such premises, owe to firefighters, Department of Emergency Management hazardous materials officers, nonfirefighter regional hazardous materials emergency response team members, and law-enforcement officers who in the performance of their duties come upon that portion of the premises normally open to the public the duty to maintain the same in a reasonably safe condition or to warn of dangers thereon of which he knows or has reason to know, whether or not such premises are at the time open to the public.An owner or occupant of real property containing premises not normally open to the public shall, with respect to such premises, owe the same duty to firefighters, Department of Emergency Management hazardous materials officers, nonfirefighter regional hazardous materials emergency response team members, and law-enforcement officers who he knows or has reason to know are upon, about to come upon, or imminently likely to come upon that portion of the premises not normally open to the public.While otherwise engaged in the performance of his duties, a law-enforcement officer, Department of Emergency Management hazardous materials officer, nonfirefighter regional hazardous materials emergency response team member, or firefighter shall be owed a duty of ordinary care.The common-law doctrine known as the fireman’s rule, a doctrine that limits a defendant’s liability for otherwise culpable conduct resulting in property damage and injuries to the public officials named in this section, shall not be a defense to claims (i) against third parties whose negligent acts did not give rise to the emergency to which such public official is responding and who were not occupiers of the premises where such emergency arose and injuries occurred; (ii) arising out of further acts of negligence separate and apart from the negligent acts that gave rise to the emergency to which such public official is responding; (iii) based upon a violation of a statutory duty created for the express benefit of such public official; or (iv) against parties whose conduct qualifies as an intentional tort, gross negligence, or willful or wanton misconduct.
    2. For purposes of this section, “law-enforcement officers” means only police officers, sheriffs, and deputy sheriffs and “firefighters” includes (i) emergency medical personnel and (ii) special forest wardens designated pursuant to § 10.1-1135.

    History. 1987, c. 442; 1992, c. 731; 1996, cc. 646, 660; 2000, c. 962; 2017, c. 315.

    The 2000 amendments.

    The 2000 amendment by c. 962, in the last paragraph, inserted the clause (i) designator, added “and” at the end of clause (i) and added clause (ii).

    The 2017 amendments.

    The 2017 amendment by c. 315 added the subsection designations; added the last paragraph in subsection A; and in subsection B, substituted “‘law-enforcement officers’ means” for “the term ‘law-enforcement officers’ shall mean” and “firefighters” for “the term ‘firefighter.”’

    Michie’s Jurisprudence.

    For related discussion, see 13B M.J. Negligence, §§ 17, 18.

    CASE NOTES

    The fireman’s rule. —

    This statute does not abrogate the common law fireman’s rule, but rather, clarifies the duty of care owed to firemen and police officers while performing their duties. The 1992 amendment was not intended to create liability where there is none or to change the assumption of risk factor. Greene v. Consolidated Freightways Corp., 74 F. Supp. 2d 616, 1999 U.S. Dist. LEXIS 17726 (E.D. Va. 1999), aff'd, 243 F.3d 537, 2001 U.S. App. LEXIS 6712 (4th Cir. 2001).

    CIRCUIT COURT OPINIONS

    The fireman's rule.. —

    Fireman’s rule did not bar the gross negligence claims given, inter alia, that Va. Code Ann. § 8.01-226 (A) did not evince an intent to change the common law, and the impact of clogged or non-existent drains and the misreporting of the type of trash that was housed in the facility created undue risks no inherent in firefighting. Cockey v. Covanta Fairfax, Inc., 2021 Va. Cir. LEXIS 165 (Fairfax County Aug. 4, 2021).

    § 8.01-226.1. Civil immunity when participating in Lawyers Helping Lawyers.

    Any person shall be immune from civil liability for, or resulting from, any act, decision, omission, communication, finding, opinion or conclusion made or conducted in connection with the investigation, intervention, counseling or monitoring of a lawyer, judge, paralegal, or other member of the legal profession by “Lawyers Helping Lawyers,” a Virginia nonprofit, nonstock corporation dedicated to assisting members of the legal profession engaged in substance abuse or suffering from mental illness, if such act, decision, omission, communication, finding, opinion or conclusion is made or conducted in good faith and without malicious intent.

    Nothing in this section shall be construed to grant immunity to any claim by a client against a person licensed to practice law.

    History. 1987, c. 527; 1992, c. 534; 2003, c. 571.

    The number of this section was assigned by the Virginia Code Commission, the number in the 1987 act having been 8.01-226 .

    The 2003 amendments.

    The 2003 amendment by c. 571 rewrote the section.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attorney and Client, § 30.

    § 8.01-226.2. Civil immunity for licensed professional engineers and licensed architects participating in rescue or relief assistance.

    Any licensed professional engineer or licensed architect who, in good faith and without charge or compensation, utilizes his professional skills in providing rescue or relief assistance at the scene of or in connection with a natural or man-made disaster or other life-threatening emergency, shall not be liable for any civil damages for acts or omissions on his part resulting from the rendering of such assistance or professional services in the absence of gross negligence or willful misconduct.

    History. 1992, c. 702; 1997, c. 866.

    Editor’s note.

    At the direction of the Virginia Code Commission, “man-made” was substituted for “manmade.”

    § 8.01-226.3. Civil immunity for officers, directors and members of certain crime information-gathering organizations.

    Any officer, director or member of a nonprofit organization which, pursuant to a written agreement with a local government or a law-enforcement agency, regularly assists law-enforcement agencies by (i) publicly soliciting information from anonymous informants concerning criminal activity; (ii) gathering such information from informants; (iii) offering and paying rewards to informants for such information; and (iv) communicating such information to law-enforcement agencies, shall not be liable for any civil damages for acts or omissions on his part directly relating to his activities on behalf of such organization but only in the absence of gross negligence or willful misconduct.

    History. 1993, c. 769.

    § 8.01-226.4. Civil immunity for hospice volunteers.

    Any individual who, in good faith, without compensation, and in the absence of gross negligence or willful misconduct, renders care to a terminally ill patient pursuant to a hospice program whose sole purpose is to provide care and treatment to terminally ill patients and whose services are equally available to all members of the community, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such care.

    History. 1994, c. 738.

    Michie’s Jurisprudence.

    For related discussion, see 13B M.J. Negligence, § 12.

    § 8.01-226.5. Immunity for installers and inspectors of child restraint devices.

    Any person who has successfully met the minimum required training standards for installation of child restraint devices established by the National Highway Traffic Safety Administration of the United States Department of Transportation, who in good faith and without compensation installs, or inspects the installation of, a child restraint device shall not be liable for any damages resulting from an act or omission related to such installation or inspection, unless such act or omission was the result of the person’s gross negligence or willful misconduct.

    History. 1999, c. 293.

    § 8.01-226.5:1. Civil immunity for school board employees supervising self-administration of certain medication.

    1. Any school principal or other employee of a school board who, in good faith, without compensation, and in the absence of gross negligence or willful misconduct, supervises the self-administration of inhaled asthma medications or auto-injectable epinephrine by a student, pursuant to § 22.1-274.2, shall not be liable for any civil damages for acts or omissions resulting from the supervision of self-administration of inhaled asthma medications or auto-injectable epinephrine by such student. Further, no such principal or school board employee shall be liable for any civil damages for any injuries or deaths resulting from the misuse of such auto-injectable epinephrine.
    2. For the purposes of this section, “employee” shall include any person employed by a local health department who is assigned to a public school pursuant to an agreement between a local health department and a school board.

    History. 2000, c. 871; 2005, c. 785.

    The 2005 amendments.

    The 2005 amendment by c. 785 in subsection A, twice inserted “or auto-injectable epinephrine” and added the second sentence.

    § 8.01-226.5:2. Immunity of hospital and emergency medical services agency personnel for the acceptance of certain infants.

    Any personnel of a hospital or emergency medical services agency receiving a child under the circumstances described in the second paragraph of § 18.2-371 , subdivision B 2 of § 18.2-371 .1, or subsection B of § 40.1-103 shall be immune from civil liability or criminal prosecution for injury or other damage to the child unless such injury or other damage is the result of gross negligence or willful misconduct by such personnel.

    History. 2003, cc. 816, 822; 2015, cc. 502, 503.

    The 2015 amendments.

    The 2015 amendments by cc. 502 and 503 are identical, substituted “or emergency medical services agency” for “or rescue squad” and “the second paragraph” for “subsection B.”

    § 8.01-226.6. Repealed by Acts 2007, c. 250, cl. 2.

    § 8.01-226.7. Owner and agent compliance with residential lead-based paint notification; maintenance immunity.

    1. As used in this section, the following definitions apply:“Agent” means any party who enters into a contract with a seller or lessor, including any party who enters into a contract with a representative of the seller or lessor, for the purpose of selling or leasing a residential dwelling. This term includes all persons licensed under Chapter 21 (§ 54.1-2100 et seq.) of Title 54.1. This term does not apply to purchasers or any purchaser’s representative who receives compensation from the purchaser.“Lead-based paint” means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram per square centimeter or 0.5 percent by weight.“Lead-based paint hazard” means any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil, or lead-contaminated paint that is deteriorated or present in accessible surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects as established by the appropriate federal or state agency.“Lead-based paint maintenance” means ensuring that the painted surfaces are maintained in accordance with the provisions of the International Property Maintenance Code adopted as part of the Uniform Statewide Building Code.“Residential dwelling” means a structure or part of a structure that is used as a home or residence by one or more persons who maintain a household, whether single family or multifamily.
    2. Any agent who has complied with the requirements of the United States Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. § 4851 et seq.) shall not be liable for civil damages in any personal injury or wrongful death action for lead poisoning arising from the condition of a residential dwelling, provided that before the purchaser signs any contract to purchase the residential dwelling or the tenant signs any lease for an initial term to rent the residential dwelling:
      1. An EPA-approved lead hazard information pamphlet was provided to the purchaser or lessee;
      2. The agent disclosed to the lessee the presence of any known lead-based paint and/or lead-based paint hazards and any additional information or reports about which the agent had actual knowledge concerning the known lead-based paint or lead-based paint hazards;
      3. The purchaser or tenant signed a written statement acknowledging the disclosure and receipt of the literature;
      4. If the agent is a public housing authority, it has complied with all applicable federal laws and regulations. Nothing in this subdivision shall be construed to require compliance with the federal laws and regulations that are applicable to federal housing authorities by owners or agents who are not a public housing authority; and
      5. The disclosure requirements in subsection B shall continue during the term of the tenancy for any new information in the possession of the agent or about which the agent has actual knowledge concerning the presence of lead-based paint or lead-based paint hazards. The agent shall make a written disclosure of any new information and provide the tenant with a copy of a summary thereof, advising the tenant that the full package of information and any report is available for inspection and copying if requested by the tenant.However, if the agent is responsible for lead-based paint maintenance on the residential dwelling, the agent shall not be entitled to immunity unless the agent has also met the requirements of subsection C of this section. For purposes of subsection B, an agent is responsible for lead-based paint maintenance if the agent is a party to a written agreement that requires the agent to be responsible for the maintenance of the painted surfaces in accordance with the International Property Maintenance Code adopted as part of the Uniform Statewide Building Code.
    3. An owner of a residential dwelling, or agent responsible for the lead-based paint maintenance of a residential dwelling, who has complied with the requirements of the United States Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. § 4851 et seq.) shall not be liable for civil damages in a personal injury or wrongful death action for lead poisoning arising from the condition of the residential dwelling, provided that before the purchaser signs any contract to purchase the residential dwelling, or the tenant signs any lease for an initial term to rent the residential dwelling:
      1. An EPA-approved lead hazard information pamphlet was provided to the purchaser or lessee;
      2. The owner or agent responsible for the lead-based paint maintenance of a residential dwelling disclosed to the lessee the presence of any known lead-based paint and/or lead-based paint hazards and any additional information or reports about which the owner or such agent had of their own actual knowledge concerning the known lead-based paint or lead-based paint hazards;
      3. The purchaser or tenant signed a written statement acknowledging the disclosure and receipt of the literature;
      4. With regards to lead-based paint and lead-based paint hazards, the painted surfaces of the residential dwelling were maintained in compliance with the International Property Maintenance Code of the Uniform Statewide Building Code; and
      5. The disclosure requirements in subsection C shall continue during the term of the tenancy for any new information in the possession of the owner or about which the owner has actual knowledge concerning the presence of lead-based paint or lead-based paint hazards. Further, the disclosure requirements in subsection C shall continue during the term of the tenancy for any new information in the possession of such agent or about which such agent has actual knowledge concerning the presence of lead-based paint or lead-based paint hazards. The agent shall make a written disclosure of any new information and provide the tenant with a copy of a summary thereof, advising the tenant that the full package of information and any report is available for inspection and copying if requested by the tenant.
    4. An owner or agent claiming immunity under this section may assert such immunity in responsive pleadings and request a hearing, after discovery on issues related to immunity, before the court to determine entitlement to such immunity prior to further proceedings in the case.

    History. 2000, c. 1071; 2006, c. 855; 2007, c. 255.

    The 2006 amendments.

    The 2006 amendment by c. 855 added the definition for “lead-based paint maintenance” in subsection A; in the first paragraph of subsection B deleted “or tenant” after “the purchaser,” and inserted “the residential dwelling” before “or” and “the tenant signs any lease for an initial term to rent” before “the residential building” at the end of the paragraph; substituted subdivision B 2 for “Any known lead-based paint and lead-based paint hazard on the property and any additional information or reports available to the owner concerning the same were provided to the purchaser or lessee”; added the last sentence to subdivision B 4; inserted subdivision B 5; in the last paragraph of subsection B substituted “is responsible for” for “performs or agrees to perform” and deleted “or if the party, a purchaser or a lessee is instructed to contract for lead-based paint repairs” after “residential dwelling” in the first sentence, and added the last sentence; in the first paragraph of subsection C deleted “or tenant” before “signs any contract,” “or lease” before “the residential dwelling,” and added “or the tenant signs any lease for an initial term to rent the residential dwelling” at the end of the paragraph; substituted subdivision C 2 for “Any known lead-based paint and lead-based paint hazard on the property and any additional information or reports available to the owner concerning same were provided to the purchaser or lessee”; in subdivision C 4 inserted “the painted surfaces of,” substituted “were” for “was,” deleted “in a fit and habitable condition and” after “maintained,” substituted “International Property Maintenance Code of the” for “state laws and regulations, including but not limited to the,” and deleted “and applicable federal laws and regulations” at the end of the subdivision; and added subdivision C 5 and subsection D.

    The 2007 amendments.

    The 2007 amendment by c. 255, in subsection B, added the second sentence to subdivision 5; and in subsection C, added the third sentence to subdivision 5, and made related changes.

    Law Review.

    For 2000 survey of Virginia property law, see 34 U. Rich. L. Rev. 981 (2000).

    For article on real estate law covering judicial opinions from 2006 to 2008, and the 2007 and 2008 sessions of the Virginia General Assembly, see 43 U. Rich. L. Rev. 379 (2008).

    CIRCUIT COURT OPINIONS

    Immunity granted to one, but not other leasing agent. —

    Because a fact question remained as to whether the second of two properties leased by a resident was maintained in a fit and habitable condition, and in compliance with the state and federal laws and regulations, the second leasing agent was not entitled to immunity under this section; but, because the first leasing agent provided the resident with a compliance letter and a Disclosure of Information form, which noted the existence of lead-based paint and lead-based paint hazards in the residence, it sufficiently complied with subsection B 2 of this section, entitling it to immunity. Dixon v. S. Boston Corp., 68 Va. Cir. 458, 2005 Va. Cir. LEXIS 242 (Richmond Sept. 19, 2005) (decided prior to 2006 amendments, which rewrote the section).

    § 8.01-226.8. Civil immunity for public and nonprofit corporation officials and private volunteers participating in certain programs for probationers.

    Probation officers; court personnel; state, county, city, and town personnel; any other public officials; and private volunteers who participate in a program where persons on probation or community service are ordered as a condition of probation or community service to pick up litter along a section of public roadway or waterway, to perform recycling duties at landfills, garbage transfer sites, and other waste disposal systems, to mow rights-of-way or to perform other landscaping maintenance tasks, or to perform services assigned by such probation officers, court personnel, state, county, city, or town personnel, or private volunteers acting as approved worksite supervisors of a court-approved voluntary jail diversion program shall not be liable for any civil damages to a probationer or person on community service, or the property of such person, for acts or omissions resulting from such participation, unless such act or omission is the result of willful misconduct. The provisions of this section shall not be interpreted to grant any immunity to a driver transporting the persons on probation or community service or a motorist who, by his negligence, may injure such probationer or person on community service.

    Nonprofit corporation employees or officials who participate in a program where persons on probation or community service are ordered as a condition of probation or community service to pick up litter along a section of public roadway or waterway, to perform recycling duties at landfills, garbage transfer sites, and other waste disposal systems, to mow rights-of-way or to perform other landscaping maintenance tasks, or to perform services assigned by such nonprofit corporation employees or officials acting as approved worksite supervisors of a court-approved voluntary jail diversion program shall not be liable for any civil damages to a probationer or person on community service, or the property of such person, for acts or omissions resulting from such participation, unless such act or omission is the result of gross negligence or willful misconduct.

    History. 2004, cc. 387, 434; 2007, c. 182; 2008, c. 688; 2018, c. 731.

    The 2007 amendments.

    The 2007 amendment by c. 182 inserted “or to perform recycling duties at landfills, garbage transfer sites, and other waste disposal systems” near the middle of the first sentence.

    The 2008 amendments.

    The 2008 amendment by c. 688 deleted “or” following “waterway” and inserted “to mow rights-of-way or to perform other landscaping maintenance tasks” following “waste disposal systems.”

    The 2018 amendments.

    The 2018 amendment by c. 731, in the first paragraph, inserted “or to perform services assigned by such probation officers, court personnel, state, county, city, or town personnel, or private volunteers acting as approved worksite supervisors of a court-approved voluntary jail diversion program”; added the second paragraph; and made stylistic changes.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    § 8.01-226.9. Exemption from civil liability in connection with arrest or detention of person suspected of shoplifting.

    A merchant, agent or employee of the merchant, who causes the arrest or detention of any person pursuant to the provisions of §§ 18.2-95 , 18.2-96 or § 18.2-103 , shall not be held civilly liable for unlawful detention, if such detention does not exceed one hour, slander, malicious prosecution, false imprisonment, false arrest, or assault and battery of the person so arrested or detained, whether such arrest or detention takes place on the premises of the merchant, or after close pursuit from such premises by such merchant, his agent or employee, provided that, in causing the arrest or detention of such person, the merchant, agent or employee of the merchant, had at the time of such arrest or detention probable cause to believe that the person had shoplifted or committed willful concealment of goods or merchandise. The activation of an electronic article surveillance device as a result of a person exiting the premises or an area within the premises of a merchant where an electronic article surveillance device is located shall constitute probable cause for the detention of such person by such merchant, his agent or employee, provided such person is detained only in a reasonable manner and only for such time as is necessary for an inquiry into the circumstances surrounding the activation of the device, and provided that clear and visible notice is posted at each exit and location within the premises where such a device is located indicating the presence of an antishoplifting or inventory control device. For purposes of this section, “electronic article surveillance device” means an electronic device designed and operated for the purpose of detecting the removal from the premises, or a protected area within such premises, of specially marked or tagged merchandise.

    History. Code 1950, § 18.1-127; 1960, c. 358; 1975, cc. 14, 15; 1976, c. 515; 1980, c. 149; 1985, c. 275, § 18.2-105 ; 2004, c. 462.

    Michie’s Jurisprudence.

    For related discussion, see 8B M.J. False Imprisonment, § 8.

    CASE NOTES

    Editor’s note.

    Many of the cases annotated below were decided under former § 18.2-105 .

    Legislative intent. —

    The legislature, seeking remedies for the multi-billion dollar epidemic of shoplifting and recognizing that police officers cannot be omnipresent, intended to immunize a “merchant, agent or employee of the merchant” who, either on the store premises or after close pursuit off the premises, restrains and detains those he has “probable cause to believe” have “committed wilful concealment of goods or merchandise” against civil liability for certain torts committed in the course of such restraint and detention. F.B.C. Stores, Inc. v. Duncan, 214 Va. 246 , 198 S.E.2d 595, 1973 Va. LEXIS 285 (1973).

    The scope of the exemption intended by the legislature was very broad. F.B.C. Stores, Inc. v. Duncan, 214 Va. 246 , 198 S.E.2d 595, 1973 Va. LEXIS 285 (1973).

    The Supreme Court of Virginia would interpret the former version of this statute in a way giving expansive rather than restrictive scope to the probable cause defense, particularly where the expansive interpretation is that indicated by the plain language of the section. Brandau v. J.C. Penney Co., 646 F.2d 128, 1981 U.S. App. LEXIS 14552 (4th Cir. 1981).

    Under the former version of this section, the merchant’s right to protect his property was enlarged but not infinitely; the litigable rights of the public were diminished but not extinguished. F.B.C. Stores, Inc. v. Duncan, 214 Va. 246 , 198 S.E.2d 595, 1973 Va. LEXIS 285 (1973).

    This section does not provide a merchant with absolute immunity. —

    The balance between personal and property rights in the former version of this section is achieved by providing immunity from civil liability based on a wide range of torts, but not extending such immunity in circumstances in which the tort is committed in a willful, wanton or otherwise unreasonable or excessive manner. Merchants, their agents or employees are shielded from civil liability for actions reasonably necessary to protect the owners’ property rights by detaining suspected shoplifters. But, individuals retain their “litigable rights.” Jury v. Giant of Md., Inc., 254 Va. 235 , 491 S.E.2d 718, 1997 Va. LEXIS 81 (1997).

    Qualified privilege. —

    The legal principles applicable to shoplifting, and to civil litigation arising from efforts to control this crime, do not include the concept of qualified privilege. Tweedy v. J.C. Penney Co., 216 Va. 596 , 221 S.E.2d 152, 1976 Va. LEXIS 172 (1976).

    Unofficial restraint is within intendment of “causes the arrest.” —

    Unofficial restraint or detention caused by the merchant or his agent is within the intendment of the phrase “causes the arrest.” F.B.C. Stores, Inc. v. Duncan, 214 Va. 246 , 198 S.E.2d 595, 1973 Va. LEXIS 285 (1973).

    Conduct and circumstances constituting an “unlawful detention” would also constitute the tort of false imprisonment. Since the legislature listed both false imprisonment and unlawful detention, the legislature considered detention to have particular significance in this context. F.B.C. Stores, Inc. v. Duncan, 214 Va. 246 , 198 S.E.2d 595, 1973 Va. LEXIS 285 (1973).

    If formal arrest were the only predicate for the statutory exemption, the fact that a merchant or his agent had discovered a person’s innocence and knew they had no probable cause for formal arrest would not necessarily dissuade them from attempting to so position themselves as to enable them, if faced with a civil suit, to assert the exemption or adduce testimony designed to prove probable cause for both the informal detention and the formal arrest. F.B.C. Stores, Inc. v. Duncan, 214 Va. 246 , 198 S.E.2d 595, 1973 Va. LEXIS 285 (1973).

    Proof of intent to deprive not required. —

    The probable cause defense given merchants by this section requires with respect to all the civil claims enumerated in the section proof only that at the time of a claimant’s unofficial detention the merchant had probable cause to believe that the claimant had willfully concealed merchandise, and does not require further proof that the merchant then or later had probable cause to believe that the suspect intended wrongfully to deprive the merchant of the merchandise. Brandau v. J.C. Penney Co., 646 F.2d 128, 1981 U.S. App. LEXIS 14552 (4th Cir. 1981).

    Test for probable cause. —

    In any trial whether probable cause is proven will depend upon whether the circumstances disclosed by the evidence were such as to justify an ordinarily prudent person in acting as defendants acted. F.B.C. Stores, Inc. v. Duncan, 214 Va. 246 , 198 S.E.2d 595, 1973 Va. LEXIS 285 (1973).

    Later discovered facts suggesting innocence do not deprive the merchant of the defense provided under the former version of this statute if he nevertheless proceeds thereafter to cause an official arrest and criminal prosecution. Brandau v. J.C. Penney Co., 646 F.2d 128, 1981 U.S. App. LEXIS 14552 (4th Cir. 1981).

    Burden of proof. —

    The burden is on defendants to prove probable cause as an affirmative defense. Hence, the court erred in granting instruction tendered by defendants, which required plaintiff to prove lack of probable cause. Tweedy v. J.C. Penney Co., 216 Va. 596 , 221 S.E.2d 152, 1976 Va. LEXIS 172 (1976).

    Question of fact. —

    Unless the evidence leaves no room for reasonable men to disagree, whether the circumstances were such as to justify an ordinarily prudent person in acting as defendants acted will be a question of fact properly within the province of the jury. F.B.C. Stores, Inc. v. Duncan, 214 Va. 246 , 198 S.E.2d 595, 1973 Va. LEXIS 285 (1973).

    Probable cause found. —

    Store was immune from liability under § 8.01-226.9 in a customer’s false imprisonment and malicious prosecution action, and therefore it was entitled to summary judgment, because it had probable cause to detain customer for committing petit larceny in violation of § 18.2-96 after she attempted to leave the store with a TV and VCR for which she had no receipt. At the time the store’s employees detained the customer, they knew that: (1) she had received full credit on her mother’s credit card for the returned merchandise; (2) she did not pay for the new television and VCR; (3) she had stood close to her friend while the friend shoplifted twice in the store; and (4) the customer attempted to leave the store with the TV and VCR without a receipt proving that she had paid for them. Jones v. Target Corp., 341 F. Supp. 2d 583, 2004 U.S. Dist. LEXIS 21425 (E.D. Va. 2004).

    As plaintiff was not seeking punitive damages, she was not required to prove actual malice on the part of storekeeper as a prerequisite to recovery of compensatory damages for either insulting words or malicious prosecution. Tweedy v. J.C. Penney Co., 216 Va. 596 , 221 S.E.2d 152, 1976 Va. LEXIS 172 (1976).

    Instruction. —

    The court erred in granting instruction tendered by defendants which directed the jury to find for defendants if they found that defendant acted “without personal animosity,” i.e., actual malice, against plaintiff. Tweedy v. J.C. Penney Co., 216 Va. 596 , 221 S.E.2d 152, 1976 Va. LEXIS 172 (1976).

    Store owner that detained a customer for shop lifting did so in a reasonable manner and for a reasonable length of time and was immune from civil claims for false imprisonment and malicious prosecution, and the harm to the customer was not outrageous; the store owner’s motion for summary judgment was granted. Hall v. Wal-Mart Stores East, Inc., No. 1:03CV00056, 2003 U.S. Dist. LEXIS 21016 (W.D. Va. Nov. 21, 2003).

    Conviction by a trial justice, though reversed on appeal, is conclusive evidence of probable cause, unless such conviction was procured by the defendant through fraud or by means of evidence which he knew to be false. Janney v. Arlan's Dep't Store, 247 F. Supp. 306, 1965 U.S. Dist. LEXIS 6081 (W.D. Va. 1965).

    § 8.01-226.10. Civil immunity for causing the arrest of a person for a bad check.

    If payment of any check, draft, or order for the payment of money is refused by the financial institution, trust company or other depository upon which such instrument is drawn, and the person who drew or uttered such instrument is arrested or prosecuted under the provisions of § 18.2-181 or § 18.2-182 , for failure or refusal to pay such instrument, the one who arrested or caused such person to be arrested and prosecuted, or either, shall be conclusively deemed to have acted with reasonable or probable cause in any suit for damages that may be brought by the person who drew or uttered such instrument, if the one who arrested or caused such person to be arrested and prosecuted, or either, shall have, before doing so, presented or caused such instrument to be presented to the depository on which it was drawn where it was refused, and then waited five days after notice, as provided in § 18.2-183 , without the amount due under the provisions of such instrument being paid.

    History. 2004, c. 462.

    The number of this section was assigned by the Virginia Code Commission, the number in the 2004 acts having been 8.01-226.8 .

    § 8.01-226.11. Civil immunity for operation of victim notification program.

    The Virginia Sheriffs’ Association and the Virginia Community Policing Institute, and the directors, managers, members, officers and employees of such entities shall be immune from civil liability for their acts or omissions relating to the establishment and operation of an automated victim notification system unless such act or omission was the result of gross negligence or willful misconduct.

    History. 2006, c. 267.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    § 8.01-226.12. Duty of landlord and managing agent with respect to visible mold.

    1. As used in this section, the following definitions apply:“Authorized occupant” means a person entitled to occupy a dwelling unit with the consent of the landlord, but who has not signed the rental agreement and therefore does not have the rights and obligations as a tenant under the rental agreement.“Dwelling unit” means a structure or part of a structure that is used as a home or residence by one or more persons who maintain a household, whether single family or multifamily, including, but not limited to, a manufactured home.“Guest or invitee” means a person, other than the tenant or person authorized by the landlord to occupy the dwelling unit, who has the permission of the tenant to visit but not to occupy the premises.“Interior of the dwelling unit” means the inside of the dwelling unit, consisting of interior walls, floor, and ceiling that enclose the dwelling unit as conditioned space from the outside air.“Landlord” means the owner or lessor of the dwelling unit or the building of which such residential dwelling unit is a part. “Landlord” also includes a managing agent of the premises who fails to disclose the name of such owner, lessor, or sublessor. Such managing agent shall be subject to the provisions of § 16.1-88.03 .“Managing agent” means a person authorized by the landlord to act on behalf of the landlord under an agreement.“Mold remediation in accordance with professional standards” means mold remediation of that portion of the dwelling unit or premises affected by mold, or any personal property of the tenant affected by mold, performed consistent with guidance documents published by the United States Environmental Protection Agency, the United States Department of Housing and Urban Development, the American Conference of Governmental Industrial Hygienists (the Bioaerosols Manual), Standard Reference Guides of the Institute of Inspection, Cleaning and Restoration for Water Damage Restoration and Professional Mold Remediation, or any protocol for mold remediation prepared by an industrial hygienist consistent with said guidance documents.“Notice” means notice given in writing by either regular mail or hand delivery, with sender retaining sufficient proof of having given such notice, which may be either a United States postal certificate of mailing or a certificate of service confirming such mailing prepared by the sender. However, a person shall be deemed to have notice of a fact if he has actual knowledge of it, or he received a verbal notice of it. A person “notifies” or “gives” a notice or notification to another by taking steps reasonably calculated to inform another person whether or not the other person actually comes to know of it. If a notice given is not in writing, the person giving the notice has the burden of proof to show that the notice was given to the recipient of the notice.“Readily accessible” means areas within the interior of the dwelling unit available for observation at the time of the move-in inspection that do not require removal of materials, personal property, equipment, or similar items.“Tenant”  means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others. Tenant shall not include (i) an authorized occupant, (ii) a guest or invitee, or (iii) any person who guarantees or cosigns the payment of the financial obligations of a rental agreement but has no right to occupy a dwelling unit.“Visible evidence of mold” means the existence of mold in the residential dwelling unit that is visible to the naked eye of the landlord or tenant at the time of the move-in inspection.Any term not expressly defined herein shall have the same meaning as those defined in § 55.1-1200 .
    2. Neither the landlord nor the managing agent shall be liable for civil damages in any personal injury or wrongful death action brought by a tenant, authorized occupant, or guest or invitee for exposure to mold arising from the condition within the interior of a dwelling unit, or for any property damage claims arising out of the landlord-tenant relationship, if the mold condition is caused solely by the negligence of the tenant.
    3. A managing agent with no maintenance responsibilities shall not be liable for civil damages in any personal injury or wrongful death action brought by the tenant, authorized occupant, or guest or invitee for exposure to mold, or for any property damage claims arising out of the residential landlord-tenant relationship, unless the managing agent fails to disclose the existence of a mold condition of which the managing agent has actual knowledge to the landlord and any prospective or actual tenants.
    4. If the written move-in inspection report authorized under Chapter 12 (§ 55.1-1200 et seq.) of Title 55.1 reflects that there is no visible evidence of mold in areas readily accessible within the interior of the dwelling unit, and the tenant does not object thereto in writing within five days after receiving the report, there shall be a rebuttable presumption that no mold existed at the time of the move-in inspection.
    5. If visible evidence of mold occurs within the dwelling unit, the landlord or managing agent with the maintenance responsibilities shall, exercising ordinary care, perform mold remediation in accordance with professional standards.
    6. The landlord or managing agent with maintenance responsibilities shall comply with any other applicable provisions of law.

    Editor’s note.

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted “55.1-1200” for “55-248.4” and “Chapter 12 (§ 55.1-1200 et seq.) of Title 55.5” for “Chapter 13 (§ 55-217 et seq.) or 13.2 (§ 248.2 et seq.) of Title 55.”

    Law Review.

    For article on real estate law covering judicial opinions from 2006 to 2008, and the 2007 and 2008 sessions of the Virginia General Assembly, see 43 U. Rich. L. Rev. 379 (2008).

    CASE NOTES

    Common-law causes of action. —

    Tenants were entitled to proceed on their common-law negligence and per se negligence claims against their landlord — related to the exposure to mold in their apartment — because the statutory enactment did not abrogate any common-law claims that existed prior to the enactment of the statute. Cherry v. Lawson Realty Corp., 295 Va. 369 , 812 S.E.2d 775, 2018 Va. LEXIS 48 (2018).

    § 8.01-226.13. Limited standing to seek injunctive relief against manufacturing companies.

    1. As used in this section:“Manufacturing company” means a domestic or foreign corporation primarily engaged in activities that, in accordance with the North American Industrial Classification System (NAICS), United States Manual, United States Office of Management and Budget, 2012 Edition, would be included in Sector 31, 32, or 33.“Public greenway” means any system of hiking, biking, or horseback riding trails established by a locality or political subdivision.“Public park, recreational facility, or playground” means any such facility established by a locality pursuant to § 15.2-1806 .
    2. No action shall be initiated or maintained to enjoin the continued use and operation of a manufacturing company solely on the basis of the claimant’s use of a public park, recreational facility, or playground or public greenway, when such manufacturing company existed prior to the creation of such public park, recreational facility, or playground, or public greenway.
    3. This section shall not limit actions brought by the Commonwealth, a locality, or an entity designated pursuant to subdivision A 3 of § 15.2-1806 .

    History. 2016, c. 669.

    § 8.01-227. Remedy by motion on certain bonds given or taken by officers; notice.

    The court in which any bond given or taken by an officer is required to be returned, filed or recorded, may, on motion of any person protected by such bond, give judgment in favor of such person for such amount as he would be entitled by virtue of the bond to recover in an action at law. Any such motion shall be made after reasonable notice, not less than ten days, to the obligors on the bond. Service may be in any manner sufficient to support a judgment in personam.

    History. Code 1950, §§ 8-140.1, 8-140.2; 1954, c. 546; 1977, c. 617.

    REVISERS’ NOTE

    Former §§ 8-140.1 and 8-140.2 have been simplified and combined herein.

    Cross references.

    For rules of court relating to practice and procedure in civil ations, see Rules 3:1 and 3:25.

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Counties, §§ 45, 49.

    CASE NOTES

    Editor’s note.

    Alternative remedy. —

    The statutory remedy provided by this section did not supersede the long established action for breach of a condition of a bond by common-law writ and declaration. Such action continued as a concurrent alternative remedy. Commonwealth ex rel. Duvall v. Hall, 194 Va. 914 , 76 S.E.2d 208, 1953 Va. LEXIS 158 (1953).

    Sufficiency of notice. —

    To sustain a motion on bond of sheriff, any notice, however informal, which informs the defendants of the nature and objects of the motion, is sufficient. Carr v. Meade, 77 Va. 142 , 1883 Va. LEXIS 45 (1883).

    Failure of deputy to pay over tax ticket proceeds. —

    A county treasurer may proceed by motion under former §§ 15.1-86 and 15.1-88, (see now §§ 15.2-1623 and 15.2-1625 ) upon 10 days’ notice as required by this section, against his deputies and his sureties, for the failure of the deputy to pay over the proceeds of or to account for tax tickets placed in his hands for collection. Hall v. Ratliff, 93 Va. 327 , 24 S.E. 1011 , 1896 Va. LEXIS 78 (1896).

    Article 22. Year 2000 Liability and Damages.

    §§ 8.01-227.1 through 8.01-227.3. Repealed by Acts 2007, c. 250, cl. 2.

    Article 23. Drug Dealer Liability Act.

    § 8.01-227.4. Definitions.

    As used in this article:

    “Controlled substance” means a controlled substance as defined in Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2.

    “Health care provider” means a health care provider as defined in § 8.01-581.1 .

    History. 2002, c. 863.

    § 8.01-227.5. Persons who may bring action; persons against whom actions may be brought; damages recoverable.

    1. A parent or legal custodian may bring an action for damages incurred because of his child’s unlawful use of a controlled substance while under the age of eighteen against a natural person age eighteen years or older who sold, administered, furnished or knowingly participated in the unlawful distribution of a controlled substance to the child.
    2. A parent or legal custodian entitled to bring an action under this article may recover damages limited to physical and emotional pain and suffering, the cost of treatment and rehabilitation and medical expenses, proximately caused to the parent or legal custodian by the child’s unlawful use of a controlled substance.

    History. 2002, c. 863.

    § 8.01-227.6. Law-enforcement officer or agency; health care provider not liable under certain conditions.

    A law-enforcement officer or agency shall not be liable under this article if acting in furtherance of an official investigation. A health care provider who in good faith and in compliance with state or federal law, sells, administers, furnishes or distributes a controlled substance shall not be liable under this article.

    History. 2002, c. 863.

    § 8.01-227.7. Statute of limitations.

    Every action brought pursuant to this article shall be commenced no later than two years after the child’s eighteenth birthday.

    History. 2002, c. 863.

    Article 24. Space Flight Liability and Immunity Act.

    § 8.01-227.8. Definitions.

    For purposes of this section:

    “Participant” means any space flight participant as that term is defined in 49 U.S.C. § 70102.

    “Participant Injury” means any bodily injury, including death; emotional injury; or property damage sustained by the participant.

    “Space flight activities” means launch services or reentry services as those terms are defined in 49 U.S.C. § 70102.

    “Space flight entity” means any public or private entity holding, either directly or through a corporate subsidiary or parent, a license, permit, or other authorization issued by the United States Federal Aviation Administration pursuant to the Federal Space Launch Amendments Act (49 U.S.C. § 70101 et seq.), including, but not limited to, a safety approval and a payload determination. “Space flight entity” shall also include any manufacturer or supplier of components, services, or vehicles that have been reviewed by the United States Federal Aviation Administration as part of issuing such a license, permit, or authorization.

    History. 2007, c. 893.

    Editor’s note.

    Acts 2010, cc. 491 and 659, repealed Acts 2007, c. 893, cl. 2, which contained a July 1, 2013, sunset clause for this section.

    Law Review.

    For annual survey essay, “To Boldly Go Where Only a Select Few Have Gone Before: Exploring the Commercial Space Launch Act and the Legal Risks Associated with Reaching for the Stars,” see 44 U. Rich. L. Rev. 81 (2009).

    § 8.01-227.9. Civil immunity for space flight entities.

    1. Except as provided in subsection B, a space flight entity is not liable for a participant injury resulting from the risks of space flight activities, provided that the participant has been informed of the risks of space flight activities as required by federal law pursuant to federal law and this article, and the participant has given his informed consent that he is voluntarily participating in space flight activities after having been informed of the risks of those activities as required by federal law and this article. Except as provided in subsection B, no (i) participant, (ii) participant’s representative, including the heirs, administrators, executors, assignees, next of kin, and estate of the participant, or (iii) any person who attempts to bring a claim on behalf of the participant for a participant injury, is authorized to maintain an action against or recover from a space flight entity for a participant injury that resulted from the risks of space flight activities.
    2. Nothing in subsection A shall prevent or limit the liability of a space flight entity if the space flight entity does either of the following:
      1. Commits an act or omission that constitutes gross negligence evidencing willful or wanton disregard for the safety of the participant, and that act or omission proximately causes a participant injury; or
      2. Intentionally causes a participant injury.
    3. Any limitation on legal liability afforded by this section to a space flight entity is in addition to any other limitations of legal liability otherwise provided by law.

    History. 2007, c. 893.

    Editor’s note.

    Acts 2010, cc. 491 and 659, repealed Acts 2007, c. 893, cl. 2, which contained a July 1, 2013, sunset clause for this section.

    § 8.01-227.10. Warning required.

    1. Every space flight entity providing space flight activities to a participant shall have each participant sign the warning statement specified in subsection B.
    2. The warning statement described in subsection A shall contain, at a minimum and in addition to any language required by federal law, the following statement:“WARNING AND ACKNOWLEDGEMENT: I understand and acknowledge that, under Virginia law, there is no civil liability for bodily injury, including death, emotional injury, or property damage sustained by a participant in space flight activities provided by a space flight entity if such injury or damage results from the risks of the space flight activity. I have given my informed consent to participate in space flight activities after receiving a description of the risks of space flight activities as required by federal law pursuant to 49 U.S.C. § 70105 and 14 C.F.R. § 460.45. The consent that I have given acknowledges that the risks of space flight activities include, but are not limited to, risks of bodily injury, including death, emotional injury, and property damage. I understand and acknowledge that I am participating in space flight activities at my own risk. I have been given the opportunity to consult with an attorney before signing this statement.”
    3. Failure to comply with the requirements concerning the warning statement provided in this section shall prevent a space flight entity from invoking the privileges of immunity provided by this article.

    History. 2007, c. 893.

    Editor’s note.

    Acts 2010, cc. 491 and 659, repealed Acts 2007, c. 893, cl. 2, which contained a July 1, 2013, sunset clause for this section.

    Article 25. Winter Sports Safety Act.

    § 8.01-227.11. Definitions.

    As used in this article, unless the context requires a different meaning:

    “ANSI Ski Lift Code” means the American National Standard (B77.1-2006): Passenger Ropeways — Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors — Safety Requirements, as published by the American National Standards Institute, including any supplements thereto or revisions thereof.

    “Competition” means any contest or event operated by a winter sports area operator or any other party authorized by the operator at a winter sports area involving comparison of skills, including, but not limited to, a ski race, mogul contest, jumping event, freestyle event, snowcross contest, or other similar contest or event. “Competition” includes training sessions or practice for a contest or event.

    “Competition terrain” means any part of a winter sports area in which an operator has authorized a competition to take place.

    “Competitor” means a winter sports participant who actually is engaged in a competition in any portion of a winter sports area made available by the winter sports area operator.

    “Designated trail” means a winter sports area trail on which a participant is permitted by the operator to participate in a winter sport.

    “Freestyle terrain” and “freestyle terrain park” means any portion of a winter sports area that has been designated as such by the operator for freestyle skiing, freestyle snowboarding, or similar freestyle winter sports and includes, but is not limited to, the terrain park itself and features such as rails, boxes, jumps, hits, jibs, tabletops, spines, ramps, banks, pipes, half-pipes, quarter-pipes, tables, logs, or other man-made features such as buses and other vehicles, propane tanks, and tractor tires; snowcross terrain and features; and other constructed or natural features, but does not include moguls, bumps, or rollers or jumps not built by the operator, unless they are within a designated freestyle terrain park.

    “Freestyler” means a winter sports participant utilizing freestyle terrain or a freestyle terrain park.

    “Helmet” means a type of molded headgear equipped with a neck or chin strap specifically designed by the manufacturer to be used while engaged in the winter sport of alpine skiing or snowboarding.

    “Inherent risks of winter sports” or “inherent risks of the winter sport” include:

    1. Existing and changing weather conditions and visibility;
    2. Hazards associated with varying surface or subsurface conditions on a single trail or from one trail to another, including but not limited to hazards such as participant use, snow in any condition and changing snow conditions, man-made snow, synthetic snow, ice, synthetic ice, snow or ice falling from a tree or natural or man-made structure, crust, slush, soft spots, ridges, rollers, knobs, holes, grooves, tracks from winter sports area vehicles, bare spots, rocks, boulders, stumps, logs, and brush or other forest growth or debris, or piles thereof;
    3. Variations in difficulty of terrain, whether natural or as a result of slope use, slope design, or both;
    4. Trails that have, or fall away or drop off toward, natural or man-made obstacles or hazards, including but not limited to sharp corners, ridges, jumps, bumps, rollers, moguls, valleys, dips, compressions, cliffs, ravines, drop-offs, streams, rivers, ponds, lakes, stream beds, open water or water with thin ice, holes, steep, flat, and uphill sections, and all variants and combinations thereof;
    5. The potential for collision with other participants or other individuals, including with winter sports area personnel, whether or not those personnel are on duty or off duty; with wild or domestic animals; or with equipment or objects such as winter sports area infrastructure, snowmaking equipment, buildings and posts, and stationary and moving lit or flagged winter sports area vehicles;
    6. The potential for a participant to act in a negligent or reckless manner that may cause or contribute to the injury or death of the participant or other individuals or damage to property;
    7. The location, construction, design, layout, configuration, and condition of trails, freestyle terrain, and competition terrain;
    8. The fact that use of trails, freestyle terrain, and competition terrain and participation in or being near races or other competitions or events, including but not limited to as a participant, employee at a winter sports area, spectator, or observer, involves the risk of serious injury or death or damage to property;
    9. The fact that a helmet may not afford protection in all instances and that failure to wear a helmet that is properly sized, fitted, and secured may increase the risk of injury or death or the risk of more severe injury; and
    10. The fact that the use of passenger tramways may be hazardous to passengers, including but not limited to risks resulting from loading or unloading a tramway and the potential for a passenger to fall from a tramway.

      “Operator” or “winter sports area operator” means any person who has responsibility for the operations of a winter sports area, including its officers, directors, and employees and agents acting within the scope of their employment.

      “Participant” or “winter sports participant” means an individual of any age or physical or mental ability who is an amateur or professional invitee of the operator or a trespasser and who participates in a winter sport at the winter sports area, whether or not consideration is paid to participate in the winter sport and whether or not the participant holds a valid admission ticket for all or a portion of the winter sports area, and any employee of the operator who participates in a winter sport either as part of his employment duties or as recreation.

      “Participates in a winter sport” or “participating in a winter sport” means:

    1. Using a trail or other terrain at a winter sports area to engage in a winter sport;

    2. Participating in training or lessons for a winter sport as either an instructor or a student;

    3. Being a spectator, observer, bystander, or pedestrian of or to any activity on a trail or other terrain at or near a winter sports area; or

    4. Being a passenger on a passenger tramway. “Passenger” means any individual, including a winter sports participant, while being transported or conveyed by a passenger tramway, while waiting in the immediate vicinity for such transportation or conveyance, while moving away from the disembarkation or unloading point of a passenger tramway to clear the way for the following passengers, or while boarding or embarking upon or unloading or disembarking from a passenger tramway. “Passenger tramway” means any ski lift, chairlift, gondola, tramway, cable car, or other aerial lift and any rope tow, conveyor, t-bar, j-bar, handle tow, or other surface lift used by an operator to transport participants, spectators, observers, or pedestrians at a winter sports area, and any associated components including, but not limited to, lift towers, concrete tower foundations, tower bolts, tower ladders, lift terminals, chairs, gondolas, t-bars, j-bars, conveyors, and other structures relating to passenger tramways. “Person” means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof. “Snowmaking equipment” means any machine used to make snow, including but not limited to snow guns and any associated towers, components, pipe, hydrant, hose, or other structures or equipment, including electrical equipment. “Trail” or “winter sports area trail” means any slope, trail, run, freestyle terrain, or competition terrain located in a winter sports area. “Trail” includes edges and transition areas to other terrain, but does not include a tubing park. “Tubing” means sliding on inflatable tubes, minibobs, sleds, toboggans, or any other comparable devices down a prepared course or lanes at a winter sports area. “Tubing park” means an area designated by an operator for tubing. “Winter sport” means a recreational or sporting activity, including sliding, jumping, walking, or traveling on a winter sports area trail for alpine skiing; Nordic skiing; telemark skiing; freestyle skiing; snowboarding; freestyle snowboarding; snowshoeing; tobogganing; sledding; or use of a snowmobile, minibob, snowbike, or comparable device; or any similar activity or use of a device that takes place at any time of the year on natural snow, man-made snow, ice, synthetic snow, synthetic ice, or any other synthetic surface, including a competition or the use of any device by a disabled or adaptive participant for a winter sport. “Winter sport” does not include ice skating or tubing. “Winter sports area” means all the real and personal property under control of the operator or on the premises of such property that is being occupied by the operator by fee simple, lease, license, easement, permission, or otherwise, including but not limited to any and all trails, freestyle terrain, competition terrain, passenger tramways, or other areas of real property. “Winter sports area” does not include a tubing park except for any passenger tramway serving a tubing park and the immediate vicinity of such a passenger tramway in which individuals embark upon or disembark from the passenger tramway. “Winter sports area infrastructure” means:

    1. Passenger tramways;

    2. Snowmaking equipment;

    3. Towers, buildings, shacks, fixtures, furniture, and other structures, including utility infrastructure, located on the winter sports area property; and

    4. Signs, fences, ropes, flags, posts, poles, and any other materials or structures used for posting signs or to manage or direct winter sports participants, spectators, observers, or pedestrians or any combination thereof. “Winter sports area vehicle” means a vehicle used on a winter sports area trail in the operation and maintenance of winter sports areas and competitions and includes, but is not limited to, snowmobiles, all-terrain vehicles, and any other similarly sized vehicles as well as larger maintenance vehicles such as snow grooming equipment.

    History. 2012, c. 713.

    § 8.01-227.12. Warnings and other winter sports area operator requirements.

    1. Each winter sports area operator shall include the following warning on each ticket, season pass, and written contract for professional services, instruction, or the rental of equipment to a winter sports participant and on each sign required by this subsection:“WARNING: Under Virginia law, a ski area operator or other winter sports area operator is not liable for an injury to or death of a winter sports participant in a winter sport conducted at this location, or for damage to property, if such injury, death, or damage results from the inherent risks of the winter sport or from the participant’s own negligence. The inherent risks of a winter sport include, among others, risks associated with the land, equipment, other participants, and animals, as well as the potential for you or another participant to act in a negligent manner that may contribute to the injury, death, or damage. You are assuming the inherent risks of participating in a winter sport at this location. Complete copies of the applicable Virginia law and the participant responsibility code published by the National Ski Areas Association are available for review at each ticket sales office of this winter sports area and online at [insert website for winter sports area].”Every ticket, season pass, and written contract for professional services, instruction, or the rental of equipment to a participant shall contain the warning required by this subsection in clearly readable print. Every sign required by this section shall contain the warning required by this subsection in black letters, with each letter to be a minimum of one inch in height. An operator also may print on a ticket; season pass; written contract for professional services, instruction, or rental of equipment to a participant; or any sign required by this section any additional warning it deems appropriate. The warning required by this section does not constitute a preinjury contractual release and nothing in this section alters the common law of Virginia with regard to preinjury contractual releases.
    2. Each operator shall install and maintain a sign containing the warning set forth in subsection A (i) at each designated ticketing office, (ii) at each front desk at each building or facility at which guests check in, (iii) at or near each ticket sales office of the winter sports area, and (iv) at, near, or en route to the loading area of each passenger tramway.
    3. Each operator shall install and maintain at or near the beginning of each designated trail a sign that contains the name of the trail and any of the applicable difficulty-level words and emblems contained in this subsection, as determined by the operator. Directional arrows may be included on any sign, but shall be included if the sign is located at such a distance or position relative to the beginning of a trail that it would not be understandable by a reasonably prudent participant without directional arrows. As applicable, the signs shall indicate: (i) “Easiest” and include a green circle emblem, (ii) “More Difficult” and include a blue square emblem, (iii) “Most Difficult” and include a black diamond emblem, (iv) “Expert” or “Extreme Terrain” and include a two black diamond emblem, (v) “Freestyle Terrain” and include an orange oval emblem, or (vi) “Closed” and include a border around a black figure in the shape of a skier inside with a band running diagonally across the sign.
    4. Each operator shall install and maintain at, near, or en route to the loading area for each passenger tramway that does not service trails that are designated by the operator as “Easiest” a sign that includes the following warning:“WARNING. This lift does not service any trails that are designated Easiest (green circle emblem). All of the trails serviced by this lift are designated [as applicable, More Difficult (blue square emblem), Most Difficult (black diamond emblem), Expert (two black diamond emblem), or Freestyle Terrain (orange oval emblem)].”
    5. Each operator shall install and maintain at, near, or en route to the entrance to each trail containing freestyle terrain a sign that indicates the location of the freestyle terrain. Each sign shall be denoted by an orange oval emblem, a stop sign emblem, and the statements “Freestyle skills required” and “Helmets are recommended.” Each sign also may include any other freestyle warning the operator deems appropriate.
    6. Whenever trail grooming or snowmaking operations are being undertaken, or trail grooming equipment is being operated, on a trail that is at that time open to the public, the operator shall place or cause to be placed a sign to that effect at the top or beginning of the trail.
    7. An operator may vary from the specific location requirements required by this section provided that the location is substantially the same as the location required by this section and that the sign is plainly visible to a reasonably prudent winter sports participant abiding by all of the participant’s duties and responsibilities.
    8. Each operator shall make available, by oral or written report or otherwise, information concerning the daily conditions of its trails.
    9. Each operator that offers a winter sport at nighttime shall meet the lighting standards for that winter sport provided by Illuminating Engineering Society of North America RP-6-01, Sports and Recreational Area Lighting § 6.24, including any supplements thereto or revisions thereof.
    10. Each operator shall, upon request, provide (i) a freestyler who holds a valid admission ticket to the winter sports area’s freestyle terrain a reasonable opportunity to view the freestyle terrain and (ii) a competitor who has properly registered for the competition a reasonable opportunity to visually inspect the portion of the winter sports area designated by the operator for the competition.
    11. Each operator shall provide a ski patrol and first-aid services.
    12. Each operator shall make available on the winter sports area’s website and at each ticket sales office of the winter sports area for review by any winter sports participant, upon request, a copy of the participant responsibility code posted and available at each winter sports area and a copy of this article.

    History. 2012, c. 713.

    § 8.01-227.13. Winter sports area trail maps.

    Each operator, upon request, shall provide to a participant a trail map of all trails located in the operator’s winter sports area. The maps shall be available at each ticket sales office and at other locations at the winter sports area such that the maps are easily accessible to participants. All trail maps shall indicate the skill-level designation for each trail at the winter sports area as designated in subsection C of § 8.01-227.12 .

    History. 2012, c. 713.

    § 8.01-227.14. Freestyle terrain.

    In addition to providing the signage and warnings set forth in subsections C and E of § 8.01-227.12 , an operator shall construct a barricade through use of fencing, flagging, or similar means at the entrance to any trail containing freestyle terrain. The barricade shall contain an entrance opening not wider than 30 feet.

    History. 2012, c. 713.

    § 8.01-227.15. Winter sports area vehicles.

    An operator shall install and maintain on or near the top of each winter sports area vehicle that is present on any designated trail of a winter sports area during the operating hours of any passenger tramway serving that trail a flashing or rotating light that flashes or rotates whenever the vehicle is on any such trail. An operator also shall install and maintain on any snowmobile, all-terrain vehicle, or any other similarly sized vehicle that is present on any designated trail during the operating hours of any passenger tramway serving that trail a red or orange flag that is at least 40 square inches in size and is mounted at least five feet from the bottom of the vehicle’s tracks or tires.

    History. 2012, c. 713.

    § 8.01-227.16. Passenger tramways.

    1. Each operator shall be responsible for the safe operation and maintenance of each passenger tramway in its winter sports area whenever the tramway is in use, and for the safe construction of any passenger tramway that the operator constructed. At least once during each calendar year, each operator shall have all passenger tramways within the operator’s winter sports area inspected by an individual who is qualified pursuant to Virginia law to inspect passenger tramways for compliance with the requirements of the ANSI Ski Lift Code and shall not operate a passenger tramway that is not in compliance until that passenger tramway is certified by such an individual as being in compliance. An operator’s compliance with this inspection requirement does not by itself preclude potential liability on the part of the operator for any failure to operate or maintain a passenger tramway safely.
    2. If a participant or a passenger using a passenger tramway at a winter sports area with the permission of the operator is unfamiliar with the use of a passenger tramway and asks for instruction on its use, the operator shall provide a reasonable opportunity for such instruction. In addition to the signs required by subsections A, B, and D of § 8.01-227.12 , an operator shall install and maintain at or near the loading area for each passenger tramway in the winter sports area a sign stating that if a participant or other passenger is unfamiliar with the use of the passenger tramway and asks for instruction for its use, the operator will provide a reasonable opportunity for such instruction.

    History. 2012, c. 713.

    § 8.01-227.17. Duties and responsibilities of winter sports participants and certain other individuals.

    1. A winter sports participant has a duty and responsibility to:
      1. Exercise reasonable care in engaging in winter sports at the winter sports area, including, but not limited to, the exercise of reasonable care in:
        1. Participating in a winter sport at a winter sports area only on designated trails that are not marked “closed” and refraining from participating in a winter sport in any portion of a winter sports area that is not a designated trail or is marked “closed”;
        2. Knowing the range of his ability to participate in the winter sport in which he is participating and acting within the limits of that ability;
        3. Being the sole judge of his knowledge of and ability to successfully negotiate any trail or passenger tramway and refraining from negotiating any trail or passenger tramway until obtaining sufficient knowledge and ability to do so;
        4. Heeding and obeying all warnings, notices, and signs provided by an operator and not altering, defacing, removing, or destroying any such warning, notice, or sign;
        5. Maintaining control of his speed and course at all times and maintaining a proper lookout so as to be able to avoid other participants and objects;
        6. Staying clear of any winter sports area vehicle or infrastructure, other than when embarking on or disembarking from a passenger tramway or when present at or in a residential building or other building that is open to the public;
        7. Wearing retention straps, ski brakes, or other devices to prevent runaway equipment;
        8. Making a visual inspection of any winter sports area competition terrain and viewing any freestyle terrain the participant intends to use;
        9. Acting in a safe manner that will avoid contributing to the injury or death of himself or others or the damage to property, including refraining from participating in a winter sport when the participant’s ability to do so safely is impaired by the consumption of alcohol or by the use of any narcotic or other drug or while under the influence of alcohol or any narcotic or other drug, or placing, fabricating, or shaping any object in a trail;
        10. Embarking on a passenger tramway only with the authority of the operator;
        11. Boarding or dismounting from a passenger tramway only at a designated area;
        12. Acting in a manner while riding a passenger tramway that is consistent with posted rules and that will not interfere with the proper and safe operation of the passenger tramway;
        13. Refraining from throwing or expelling any object while riding on a passenger tramway, and from placing an object on or about the uphill track, the entry area, or the exit area of any passenger tramway;
        14. Crossing the uphill track of a passenger tramway only at designated locations; and
        15. When involved in a winter sports collision or other accident involving another individual who the participant knows or reasonably should know is in need of medical or other assistance, obtaining assistance for that individual, notifying the proper authorities, and not leaving the scene of the collision or accident without giving the participant’s personal identification, including his name and local and permanent address, to an employee or representative of the operator or to someone providing assistance to the individual, except for the purpose of obtaining assistance for the individual, in which case the participant shall give his personal identification to an employee or representative of the operator or to someone providing assistance to the individual after obtaining such assistance; and
    2. Each passenger using a passenger tramway with the permission of an operator shall abide by and fulfill each duty and responsibility set forth in subsection A that is applicable to use of a passenger tramway.
    3. Each participant, and each passenger using a passenger tramway with the permission of an operator, shall be deemed as a matter of law to have seen and understood all postings, signs, and other warnings provided by the winter sports area operator as required by this article.
    4. An operator is entitled to assume that each passenger who boards a passenger tramway has sufficient knowledge, ability, and physical dexterity to embark upon, disembark from, and negotiate the passenger tramway. Any passenger who is unfamiliar with the use of a passenger tramway or who believes he does not have sufficient knowledge to embark upon, disembark from, and negotiate a passenger tramway shall ask the operator for instruction on such use or to provide such knowledge. Nothing in this article shall be construed to extend liability to an operator for injury to or death of a participant or other individual or damage to property resulting from a passenger who is unfamiliar with the use of a passenger tramway or believes he does not have sufficient knowledge to embark, disembark from, or negotiate a passenger tramway and does not ask the operator for instruction on such use or to provide such knowledge, or who does not have the ability or physical dexterity to embark upon, disembark from, or negotiate a passenger tramway.
    5. Any individual who is not authorized by the operator to use or be present at the winter sports area shall be deemed a trespasser.

    2. When requested, provide his personal identification to an employee or representative of the winter sports area or operator.

    History. 2012, c. 713.

    § 8.01-227.18. Helmets.

    Each winter sports participant, or the parent or legal guardian of, or adult acting in a supervisory position over, a participant under the age of 18, shall be responsible for determining whether the participant will wear a helmet and whether the helmet is sufficiently protective and properly sized, fitted, and secured.

    Nothing in this article shall be construed to extend liability to an operator for injury to or death of a participant or other individual or damage to property resulting from a participant not wearing a helmet while participating in a winter sport.

    History. 2012, c. 713.

    § 8.01-227.19. Assumption of risks.

    1. A winter sports participant shall be presumed to have known the inherent risks of the winter sport in which he participates, to have fully appreciated the nature and extent of such risks, and to have voluntarily exposed himself to such risks, even if a particular risk was not specifically presented or stated to the participant by the operator. A passenger who uses a passenger tramway with the permission of an operator shall be presumed to have known the risks of winter sports that are applicable to the use of passenger tramways, to have fully appreciated the nature and extent of such risks, and to have voluntarily exposed himself to such risks, even if a particular risk was not specifically presented or stated to the individual by the operator. Such presumption may be rebutted by the participant or passenger by proving that the participant or passenger did not know the particular inherent risk of winter sports that proximately caused the injury or death or damage to property at issue, did not fully appreciate the nature and extent of such risk, or did not voluntarily expose himself to such risk.
    2. An operator’s negligence is not an inherent risk of winter sports, and a participant or passenger is not presumed to have accepted the risk of such negligence and the injuries proximately caused therefrom.
    3. In determining if the presumption set forth in subsection A applies in a particular case, whether a particular circumstance or set of circumstances constitutes an inherent risk of winter sports shall be a question of law, and whether the participant or passenger assumed the particular inherent risk of winter sports shall be a question of fact.
    4. Nothing herein shall prevent a participant or passenger from offering evidence that he did not know the particular inherent risk of winter sports that proximately caused the injury or death or damage to property at issue, did not fully appreciate the nature and extent of such risk, or did not voluntarily expose himself to such risk.

    History. 2012, c. 713.

    § 8.01-227.20. Liability of winter sports area operator.

    1. A winter sports area operator shall be liable if the operator does any of the following:
      1. Commits an act or omission related to a winter sport that constitutes negligence or gross negligence regarding the safety of an individual, or of property, and that act or omission proximately causes injury to or the death of the individual or damage to property; or
      2. Recklessly, knowingly, or intentionally commits an act or omission related to a winter sport that proximately causes injury to or the death of a winter sports participant or other individual or damage to property.
    2. No operator shall be liable and no individual or individual’s representative may recover from an operator under subdivision A 1 or subsection C if the individual is found to have assumed the risk of his injury or death, or damage to property, pursuant to § 8.01-227.19 or if a proximate cause of the injury, death, or damage was his own negligence, provided that in any action for damages against an operator pursuant to subdivision A 1 or subsection C, the operator shall plead, as appropriate, the affirmative defense of (i) assumption of the risk by the individual, (ii) contributory negligence by the individual, or (iii) both assumption of the risk and contributory negligence.
    3. A winter sports area operator shall not be considered a common carrier under Virginia law but shall be liable for any injury to or death of an individual or damage to property caused by the operator’s failure to operate a passenger tramway in a reasonable manner or to comply with any mandatory provision of the ANSI Ski Lift Code.
    4. The liability of a winter sports area operator to another individual who is not authorized by the operator to use or be present at the winter sports area shall be only the liability for the duty owed under Virginia law to a trespasser.

    History. 2012, c. 713.

    § 8.01-227.21. Common law regarding minors.

    Nothing in this article shall abrogate Virginia common law regarding either (i) the capacity of a minor to be contributorily negligent or to assume a risk or (ii) the standard for measuring the conduct of a minor.

    History. 2012, c. 713.

    § 8.01-227.22. Failure to fulfill duty or responsibility not negligence per se.

    An operator’s or participant’s failure to abide by or fulfill a duty or responsibility under this article shall not constitute negligence per se.

    History. 2012, c. 713.

    § 8.01-227.23. Applicability of article.

    Any liabilities and presumptions pursuant to this article apply only with regard to actions or potential actions between an operator and a participant or passenger. This article has no applicability to actions between a participant or passenger and any other person.

    History. 2012, c. 713.

    Chapter 4. Limitations of Actions.

    Article 1. In General.

    § 8.01-228. Scope of limitations; “personal action” defined.

    Every action for which a limitation period is prescribed by law must be commenced within the period prescribed in this chapter unless otherwise specifically provided in this Code. As used in this chapter, the term “personal action” shall include an action wherein a judgment for money is sought, whether for damages to person or property.

    History. 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-228 is new and recognizes that most of the statutory limitations for civil actions scattered throughout former Title 8 and elsewhere in the Code have been collected in this Title 8.01 chapter. Some are not found herein. E.g., see § 8.01-40 B.

    While statutes of limitations may apply in some instances to equity suits, § 8.01-228 does not change the established rule that laches are generally applicable to purely equitable claims.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Limitation of Actions, §§ 1, 6, 10.

    § 8.01-229. Suspension or tolling of statute of limitations; effect of disabilities; effect of death; injunction; prevention of service by defendant; dismissal, nonsuit or abatement; devise for payment of debts; new promises; debts proved in creditors’ suits.

    1. Disabilities which toll the statute of limitations. — Except as otherwise specifically provided in §§ 8.01-237 , 8.01-241 , 8.01-242 , 8.01-243 , 8.01-243 .1 and other provisions of this Code,
      1. If a person entitled to bring any action is at the time the cause of action accrues an infant, except if such infant has been emancipated pursuant to Article 15 (§ 16.1-331 et seq.) of Chapter 11 of Title 16.1, or incapacitated, such person may bring it within the prescribed limitation period after such disability is removed; or
      2. After a cause of action accrues,
        1. If an infant becomes entitled to bring such action, the time during which he is within the age of minority shall not be counted as any part of the period within which the action must be brought except as to any such period during which the infant has been judicially declared emancipated; or
        2. If a person entitled to bring such action becomes incapacitated, the time during which he is incapacitated shall not be computed as any part of the period within which the action must be brought, except where a conservator, guardian or committee is appointed for such person in which case an action may be commenced by such conservator, committee or guardian before the expiration of the applicable period of limitation or within one year after his qualification as such, whichever occurs later.For the purposes of subdivisions 1 and 2, a person shall be deemed incapacitated if he is so adjudged by a court of competent jurisdiction, or if it shall otherwise appear to the court or jury determining the issue that such person is or was incapacitated within the prescribed limitation period.
    2. Effect of death of a party. — The death of a person entitled to bring an action or of a person against whom an action may be brought shall toll the statute of limitations as follows:
      1. Death of person entitled to bring a personal action. — If a person entitled to bring a personal action dies with no such action pending before the expiration of the limitation period for commencement thereof, then an action may be commenced by the decedent’s personal representative before the expiration of the limitation period including the limitation period as provided by subdivision E 3 or within one year after his qualification as personal representative, whichever occurs later.
      2. Death of person against whom personal action may be brought. — a. If a person against whom a personal action may be brought dies before the commencement of such action and before the expiration of the limitation period for commencement thereof then a claim may be filed against the decedent’s estate or an action may be commenced against the decedent’s personal representative before the expiration of the applicable limitation period or within one year after the qualification of such personal representative, whichever occurs later.
      3. Effect of death on actions for recovery of realty, or a proceeding for enforcement of certain liens relating to realty. — Upon the death of any person in whose favor or against whom an action for recovery of realty, or a proceeding for enforcement of certain liens relating to realty, may be brought, such right of action shall accrue to or against his successors in interest as provided in Article 2 (§ 8.01-236 et seq.).
      4. Accrual of a personal cause of action against the estate of any person subsequent to such person’s death. — If a personal cause of action against a decedent accrues subsequent to his death, an action may be brought against the decedent’s personal representative or a claim thereon may be filed against the estate of such decedent before the expiration of the applicable limitation period or within two years after the qualification of the decedent’s personal representative, whichever occurs later.
      5. Accrual of a personal cause of action in favor of decedent. — If a person dies before a personal cause of action which survives would have accrued to him, if he had continued to live, then an action may be commenced by such decedent’s personal representative before the expiration of the applicable limitation period or within one year after the qualification of such personal representative, whichever occurs later.
      6. Delayed qualification of personal representative. — If there is an interval of more than two years between the death of any person in whose favor or against whom a cause of action has accrued or shall subsequently accrue and the qualification of such person’s personal representative, such personal representative shall, for the purposes of this chapter, be deemed to have qualified on the last day of such two-year period.
    3. Suspension during injunctions. — When the commencement of any action is stayed by injunction, the time of the continuance of the injunction shall not be computed as any part of the period within which the action must be brought.
    4. Obstruction of filing by defendant. — When the filing of an action is obstructed by a defendant’s (i) filing a petition in bankruptcy or filing a petition for an extension or arrangement under the United States Bankruptcy Act or (ii) using any other direct or indirect means to obstruct the filing of an action, then the time that such obstruction has continued shall not be counted as any part of the period within which the action must be brought.
    5. Dismissal, abatement, or nonsuit.
      1. Except as provided in subdivision 3, if any action is commenced within the prescribed limitation period and for any cause abates or is dismissed without determining the merits, the time such action is pending shall not be computed as part of the period within which such action may be brought, and another action may be brought within the remaining period.
      2. If a judgment or decree is rendered for the plaintiff in any action commenced within the prescribed limitation period and such judgment or decree is arrested or reversed upon a ground which does not preclude a new action for the same cause, or if there is occasion to bring a new action by reason of the loss or destruction of any of the papers or records in a former action which was commenced within the prescribed limitation period, then a new action may be brought within one year after such arrest or reversal or such loss or destruction, but not after.
      3. If a plaintiff suffers a voluntary nonsuit as prescribed in § 8.01-380 , the statute of limitations with respect to such action shall be tolled by the commencement of the nonsuited action, regardless of whether the statute of limitations is statutory or contractual, and the plaintiff may recommence his action within six months from the date of the order entered by the court, or within the original period of limitation, or within the limitation period as provided by subdivision B 1, whichever period is longer. This tolling provision shall apply irrespective of whether the action is originally filed in a federal or a state court and recommenced in any other court, and shall apply to all actions irrespective of whether they arise under common law or statute.
    6. Effect of devise for payment of debts. — No provision in the will of any testator devising his real estate, or any part thereof, subject to the payment of his debts or charging the same therewith, or containing any other provision for the payment of debts, shall prevent this chapter from operating against such debts, unless it plainly appears to be the testator’s intent that it shall not so operate.
    7. Effect of new promise in writing.
      1. If any person against whom a right of action has accrued on any contract, other than a judgment or recognizance, promises, by writing signed by him or his agent, payment of money on such contract, the person to whom the right has accrued may maintain an action for the money so promised, within such number of years after such promise as it might be maintained if such promise were the original cause of action. An acknowledgment in writing, from which a promise of payment may be implied, shall be deemed to be such promise within the meaning of this subsection.
      2. The plaintiff may sue on the new promise described in subdivision 1 or on the original cause of action, except that when the new promise is of such a nature as to merge the original cause of action then the action shall be only on the new promise.
    8. Suspension of limitations in creditors’ suits. — When an action is commenced as a general creditors’ action, or as a general lien creditors’ action, or as an action to enforce a mechanics’ lien, the running of the statute of limitations shall be suspended as to debts provable in such action from the commencement of the action, provided they are brought in before the commissioner in chancery under the first reference for an account of debts; but as to claims not so brought in the statute shall continue to run, without interruption by reason either of the commencement of the action or of the order for an account, until a later order for an account, under which they do come in, or they are asserted by petition or independent action.In actions not instituted originally either as general creditors’ actions, or as general lien creditors’ actions, but which become such by subsequent proceedings, the statute of limitations shall be suspended by an order of reference for an account of debts or of liens only as to those creditors who come in and prove their claims under the order. As to creditors who come in afterwards by petition or under an order of recommittal, or a later order of reference for an account, the statute shall continue to run without interruption by reason of previous orders until filing of the petition, or until the date of the reference under which they prove their claims, as the case may be.
    9. When an action is commenced within a period of 30 days prior to the expiration of the limitation period for commencement thereof and the defending party or parties desire to institute an action as third-party plaintiff against one or more persons not party to the original action, the running of the period of limitation against such action shall be suspended as to such new party for a period of 60 days from the expiration of the applicable limitation period.
    10. If any award of compensation by the Workers’ Compensation Commission pursuant to Chapter 5 (§ 65.2-500 et seq.) of Title 65.2 is subsequently found void ab initio, other than an award voided for fraudulent procurement of the award by the claimant, the statute of limitations applicable to any civil action upon the same claim or cause of action in a court of this Commonwealth shall be tolled for that period of time during which compensation payments were made.
    11. Suspension of limitations during criminal proceedings. — In any personal action for damages, if a criminal prosecution arising out of the same facts is commenced, the time such prosecution is pending shall not be computed as part of the period within which such a civil action may be brought. For purposes of this subsection, the time during which a prosecution is pending shall be calculated from the date of the issuance of a warrant, summons or capias, the return or filing of an indictment or information, or the defendant’s first appearance in any court as an accused in such a prosecution, whichever date occurs first, until the date of the final judgment or order in the trial court, the date of the final disposition of any direct appeal in state court, or the date on which the time for noting an appeal has expired, whichever date occurs last. Thereafter, the civil action may be brought within the remaining period of the statute or within one year, whichever is longer.If a criminal prosecution is commenced and a grand jury indictment is returned or a grand jury indictment is waived after the period within which a civil action arising out of the same set of facts may be brought, a civil action may be brought within one year of the date of the final judgment or order in the trial court, the date of the final disposition of any direct appeal in state court, or the date on which the time for noting an appeal has expired, whichever date occurs last, but no more than 10 years after the date of the crime or two years after the cause of action shall have accrued under § 8.01-249 , whichever date occurs last.

    3. If a convict is or becomes entitled to bring an action against his committee, the time during which he is incarcerated shall not be counted as any part of the period within which the action must be brought.

    b. If a person against whom a personal action may be brought dies before suit papers naming such person as defendant have been filed with the court, then such suit papers may be amended to substitute the decedent’s personal representative as party defendant before the expiration of the applicable limitation period or within two years after the date such suit papers were filed with the court, whichever occurs later, and such suit papers shall be taken as properly filed.

    History. Code 1950, §§ 8-8, 8-13, 8-15, 8-20, 8-21, 8-25, 8-26, 8-29 through 8-34; 1964, c. 219; 1966, c. 118; 1972, c. 825; 1977, c. 617; 1978, cc. 65, 767; 1983, cc. 404, 437; 1986, c. 506; 1987, cc. 294, 645; 1988, c. 711; 1989, c. 588; 1990, c. 280; 1991, cc. 693, 722; 1993, c. 844; 1997, c. 801; 2000, c. 531; 2001, cc. 773, 781; 2016, cc. 189, 268.

    REVISERS’ NOTE

    Section 8.01-229 consolidates in one section various situations which have the general effect of tolling or suspending the running of the statutes of limitation (there are other tolling provisions; see, e.g. § 8.01-581.9 [repealed in 1993]).

    Subsection A incorporates the major thrust of former §§ 8-8 and 8-30 by tolling statutes of limitation when the person entitled to bring an action is disabled by infancy or “unsound mind” at the time when his cause of action accrues. In addition, the provision changes prior law and provides that disabilities which arise after the cause of action accrues also suspend the running of the limitation period.

    The tolling of the running of the statute where a convict has a cause of action against his committee comports with the revision of former § 8-15. See § 8.01-245 .

    Subsection B 1 replaces former § 8-31 as to the tolling of the statute of limitations by the death of a party entitled to bring a personal action. Former § 8-31 adds an extra year from the death of the person entitled to bring a personal action to the applicable limitation period. Sub section 8.01-229 B 1 makes the date of qualification of the decedent’s personal representative the commencement date and extends the statute of limitation for an extra year only when the action would otherwise be barred within that year.

    Subsection B 2 modifies and simplifies former § 8-31 and a portion of § 8-13. When a cause of action accrues but no action is commenced before the decedent’s death, if the applicable statute of limitations has not expired before death, the action may be commenced against the decedent’s personal representative within two years from its accrual or within one year of his qualification, whichever is later. The final sentence specifies which subsection, § 8.01-229 B 1 or B 2, is to apply should both the potential plaintiff and defendant die before the action is commenced.

    Subsection B 3 references §§ 8.01-236 through 8.01-242 indicating that the effect of death on actions for recovery of land and proceedings for enforcement of certain liens relating to realty will be governed thereby instead of by § 8.01-229 B 1 and B 2. See, e.g., §§ 8.01-236 and 8.01-237 whereby the tolling of the limitation period by death in adverse possession actions and lien enforcement proceedings cannot extend the statute of limitation beyond the outside maximum set by such statutes.

    Subsection B 4 concerns the accrual of a cause of action against a person’s estate after his death and authorizes the bringing of an action or the filing of a claim against such decedent’s estate within one year after the cause of action accrues or within two years after the qualification of the decedent’s personal representative, whichever occurs last. The provision replaces that portion of former § 8-13 which allowed five years to sue on such actions. See also § 8.01-229 B 2.

    Subsection B 5 supplements former §§ 8-21 and 8-32 with regard to the appropriate limitation for causes of action accruing after the death of a prospective plaintiff. Formerly, no provision addressed the application of the statute of limitations where the cause of action accrued to a decedent’s estate under §§ 64.1-144 and 64.1-145 and there was no delay in the qualification of the decedent’s personal representative. Section 8.01-229 B 5 fills this gap and gives the decedent’s personal representative at least a year after his qualification, or such longer time as provided by the applicable statute of limitations, in which to bring suit.

    Subsection B 6 changes the last sentence of former § 8-32 and provides that if the qualification of a decedent’s personal representative is delayed beyond one year after the decedent’s death such personal representative will be deemed to have qualified on the last day of such period for the purpose of measuring the applicable statute of limitation [and extensions thereof by §§ 8.01-229 B 1, 2, 4 and 5, for example]. This reduces the former delay period from two to one year.

    Subsection C tolls the statute of limitations when commencement of the action is stayed by injunction. The rationale is basically the same as that for former §§ 8-33 and 8-34 and for §§ 8.01-229 D and E (i.e., when the plaintiff seeks to commence an action within the prescribed limitation period, the plaintiff should not be precluded from recovery by subsequent expiration of the statute of limitations before the merits of the case have been finally adjudicated).

    Subsection D is basically a revision of former § 8-33 except that the former limitation to defendants “who had before resided in the Commonwealth” has been deleted. No change has been made to case law that the limitation period is not tolled if process can be served despite the defendant’s absence — e.g. service of process under the “long-arm” statute. See Bergman v. Turpin, 206 Va. 539 , 145 S.E.2d 135 (1965).

    Subsection E 1 provides for tolling the statute of limitations when an action brought in due time abates or is dismissed without a determination of the merits. The provision is analogous to the treatment of wrongful death actions. See § 8.01-244 B; Norwood v. Buffey, 196 Va. 1051 , 86 S.E.2d 809 (1955).

    Subsection E 2 preserves two provisions of former § 8-34 which are not within the ambit of subsection E 1. The same reasoning underlies both proposals, namely that the plaintiff who brings his action within due time should not be denied a decision on the merits because of subsequent procedural developments or fortuities which have no bearing upon the purpose of statutes of limitation.

    Subsection E 3 qualifies the application of subsection E 1, and requires a plaintiff who takes a nonsuit to renew his suit within six months or the running of the statute of limitations will not be affected by the commencement of the original action.

    Subsections F, G and H are former §§ 8-29, 8-25 and 8-26, and 8-20, respectively. Besides clarifying these sections generally, in subsection F the phrase: “or containing any other provision for the payment of debts” has been grafted on the language of former § 8-29 to make it clear that customary testamentary language such as “I direct the payment of my just debts” should not operate to waive the statute of limitations. The last sentence of former § 8-26 has been omitted from subsection G 2 because of Rule 3:12 [see now Rule 3:11]. Thus, unless a defendant pleading the statute of limitations expressly calls for a reply, the plaintiff need not give notice to the defendant that he intends to rely upon a new promise in writing.

    Cross references.

    As to death or change of parties, generally, see § 8.01-16 et seq.

    As to death by wrongful act, see § 8.01-50 et seq.

    As to accrual of cause of action, see § 8.01-230 .

    As to promise not to plead statute, see § 8.01-232 .

    As to limitations in actions for wrongful death, including exception to subsection B of this section, see § 8.01-244 .

    As to attachment of absconding debtors, see § 8.01-534 .

    Editor’s note.

    Acts 1991, c. 722, cl. 2 provides “That the provisions of this act are declaratory of the original intent of the General Assembly in enacting Chapter 617 of the 1977 Acts of Assembly” (Title 8.01).

    Acts 1997, c. 801, cl. 2, provides: “That the provisions of this act shall become effective on January 1, 1998. The powers granted and duties imposed pursuant to this act shall apply prospectively to guardians and conservators appointed by court order entered on or after that date, or modified on or after that date if the court so directs, without regard to when the petition was filed. The procedures specified in this act governing proceedings for appointment of a guardian or conservator or termination or other modification of a guardianship shall apply on and after that date without regard to when the petition therefor was filed or the guardianship or conservatorship created.”

    The 2000 amendments.

    The 2000 amendment by c. 531 added subsection J.

    The 2001 amendments.

    The 2001 amendments by cc. 773 and 781 are identical and added subsection K.

    The 2016 amendments.

    The 2016 amendments by cc. 189 and 268 are identical, and inserted “regardless of whether the statute of limitations is statutory or contractual” in subdivision E 3 and made minor stylistic changes throughout.

    Law Review.

    For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973).

    For note discussing a state incarcerated felon’s capacity to sue under 42 U.S.C. § 1983 in federal courts despite prohibitive state statutes, see 30 Wash. & Lee L. Rev. 329 (1973).

    For survey of Virginia law on practice and pleading for the year 1978-1979, see 66 Va. L. Rev. 343 (1980).

    For 1985 survey of Virginia civil procedure and practice, see 19 U. Rich. L. Rev. 679 (1985).

    For article, “Civil Rights and ‘Personal Injuries’: Virginia’s Statute of Limitations for Section 1983 Suits,” see 26 Wm. & Mary L. Rev. 199 (1985).

    For 1987 survey of Virginia civil procedure and practice, see 21 U. Rich. L. Rev. 667 (1987).

    For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

    For 1991 survey of civil practice and procedure, see 25 U. Rich. L. Rev. 663 (1991).

    For a review of civil practice and procedure in Virginia for year 1999, see 33 U. Rich. L. Rev. 801 (1999).

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

    For annual survey, “Special Education Law,” see 44 U. Rich. L. Rev. 17 (2009).

    For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    For Survey article, “Civil Practice and Procedure,” see 48 U. Rich. L. Rev. 1 (2013).

    For essay, “Nonsuit in Virginia Civil Trials,” see 48 U. Rich. L. Rev. 265 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Adverse Possession, §§ 2, 17, 37.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    The two paragraphs of § 8.01-244 are inextricably interrelated; one is the predicate for the other, and the tolling provisions of subsection B of this section do not apply to the time limitation imposed by § 8.01-244 . Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318, 1986 Va. LEXIS 184 (1986).

    Constitutionality of reduction of tolling period for infants’ malpractice claims. —

    The medical malpractice statute of limitations for minors, § 8.01-243.1 , which reduced the tolling period for infants with medical malpractice claims by requiring that any such actions brought on their behalf shall be commenced within two years of the date of the last act or omission giving rise to the cause of action except that if the minor was less than eight years of age at the time of the occurrence of the malpractice, he shall have until his tenth birthday to commence an action, did not violate the equal protection and due process clauses of the state and federal Constitutions, and was not special legislation in violation of Va. Const., Art. IV, § 14. Willis v. Mullett, 263 Va. 653 , 561 S.E.2d 705, 2002 Va. LEXIS 57 (2002).

    The term “personal action” is defined as any action wherein a judgment for money is sought, whether for damages to person or property. The term was never intended to apply to a right of action for death by wrongful act, and such a right of action is not within the purview of subsection B. Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318, 1986 Va. LEXIS 184 (1986).

    Construction. —

    Trial court erred in holding that subdivision B 2 b of § 8.01-229 contained a “scrivener’s error” and that the word “after” should be substituted for “before”; the decedent died after plaintiff filed her motion for judgment, therefore subdivision B 2 b of § 8.01-229 did not apply, and the personal representative’s plea to the statute of limitations based on this subdivision should have been denied. Parker v. Warren, 273 Va. 20 , 639 S.E.2d 179, 2007 Va. LEXIS 12 (2007).

    Tolling provision amendment not retroactive. —

    Lower court correctly ruled that plaintiff’s wrongful death action was time-barred because plaintiff failed to refile after nonsuit within the time prescribed by wrongful death statute of limitations in effect when original cause of action accrued; tolling provision amendment to wrongful death statute was substantive, not procedural, and therefore did not apply retroactively. Riddett v. Virginia Elec. and Power Co., 255 Va. 23 , 495 S.E.2d 819, 1998 Va. LEXIS 11 (1998).

    Since amendments affecting statutes of limitations generally affect substantive, rather than procedural, rights and such substantive rights are typically protected from retroactive application of laws, the amendment to this section allowing tolling of the statute of limitations while plaintiff is “incapacitated,” which plaintiff argued should include incarceration, did not apply to preserve plaintiff’s cause of action where the statute of limitations had already passed when the amendment took effect. Lewis v. Gupta, 54 F. Supp. 2d 611, 1999 U.S. Dist. LEXIS 8379 (E.D. Va. 1999) (decided under this section prior to the amendment effective January 1, 1998, allowing tolling while plaintiff is “incapacitated”).

    Statute not tolled during period of imprisonment. —

    The Virginia tolling statute as it read prior to January 1, 1998, does not toll statute of limitations during a potential plaintiff’s period of incarceration. Lewis v. Gupta, 54 F. Supp. 2d 611, 1999 U.S. Dist. LEXIS 8379 (E.D. Va. 1999) (decided under this section prior to the amendment effective January 1, 1998, allowing tolling while plaintiff is “incapacitated”).

    Action improperly filed against estate not tolled. —

    Pursuant to subdivision B 2 of § 8.01-229 , plaintiff could have filed an action against the personal representative before the expiration of the statute of limitations or within one year after qualification of the personal representative, whichever occurred later. However, neither event occurred and thus, plaintiff’s negligence action filed against an estate was not tolled and was barred by the statute of limitations. Idoux v. Estate of Helou, 279 Va. 548 , 691 S.E.2d 773, 2010 Va. LEXIS 56 (2010).

    Tolling of time to bring contract action against public body. —

    Contractor’s breach of contract action filed against the Virginia Department of Motor Vehicles based on a contract awarded under the Virginia Public Procurement Act was properly dismissed as untimely, as a letter denying the contractor’s claim issued by the Department, and not the State Comptroller, started the running of the limitations period under § 2.2-4363; moreover: (1) the Department’s recommendation to the Comptroller regarding the contractor’s claim was a task required under § 2.2-815 and had no effect on the finality of the Department’s previous rejection of the claim; (2) if the contractor did not believe that said letter was the final denial of its claim, it was free to file an action 30 days after it failed to receive a response to its letter seeking a determination on its claim; and (3) the tolling provisions of § 8.01-229 were not available to the contractor. Mid-Atlantic Bus. Communs., Inc. v. Va. DMV, 269 Va. 51 , 606 S.E.2d 835, 2005 Va. LEXIS 6 (2005).

    Concealing identity during commission of crime. —

    Plaintiff who filed an action alleging intentional torts against a defendant was not entitled to rely upon the tolling provision of subsection D of this section, based on claim that defendant wore a mask during the commission of his heinous crime, since use of the mask was intended to conceal identity and not to obstruct filing of an action. Grimes v. Suzukawa, 262 Va. 330 , 551 S.E.2d 644, 2001 Va. LEXIS 103 (2001).

    Third-party plaintiff actions. —

    Because of the bar of the statute of limitations, the injured person did not have an enforceable cause of action against the party from whom contribution was sought and, therefore, third-party plaintiff was similarly barred in his claim against third-party defendant. Smith-Moore Body Co. v. Heil Co., 603 F. Supp. 354, 1985 U.S. Dist. LEXIS 22301 (E.D. Va. 1985).

    Subsection I was introduced in direct response to the Rambone v. Critzer, 548 F. Supp. 660 (W.D. Va. 1982) decision. It was introduced in an effort to remove perceived inequities which would arise when an original plaintiff, delayed to the last days of the limits applicable to his claim to file suit. Smith-Moore Body Co. v. Heil Co., 603 F. Supp. 354, 1985 U.S. Dist. LEXIS 22301 (E.D. Va. 1985).

    Applicability in federal court. —

    When a federal statute of limitations is applicable, a court must look to federal law for any appropriate tolling provisions. Where there are no such provisions, it would be inappropriate for the court to look to this section to toll the running of the limitations period. Hewlett v. Russo, 649 F. Supp. 457, 1986 U.S. Dist. LEXIS 17399 (E.D. Va. 1986).

    As Virginia law was unclear on the matter, it was deemed appropriate in an action involving state law product liability claims to certify a question to the Virginia Supreme Court regarding whether tolling of a state statute of limitations was permitted under § 8.01-229 (E)(1) due to the pendency of a putative class action in another jurisdiction. Casey v. Merck & Co., 653 F.3d 95, 2011 U.S. App. LEXIS 16151 (2d Cir. 2011).

    Applicability to action under 42 U.S.C. § 1983. —

    In an action brought pursuant to 42 U.S.C. § 1983 against three former employees of the United States Bureau of Prisons at Petersburg Federal Correctional Institute alleging that they failed to provide plaintiff with a secure and safe place of confinement while he was incarcerated, Virginia law applied to toll the running of statute of limitations where the plaintiff’s action would have been barred but for the fact that the plaintiff previously had filed a pro se action. Clymer v. Grzegorek, 515 F. Supp. 938, 1981 U.S. Dist. LEXIS 12579 (E.D. Va. 1981).

    Plaintiffs’ 42 U.S.C.S. § 1983 complaint, which asserted that an ordinance regulating their well water system was unconstitutional, was untimely filed under subsection A of § 8.01-243 because, while it was debatable whether plaintiffs’ civil cases could have tolled the statute under subdivision E 1 of § 8.01-229 , there was no question that a criminal case instituted against one of the plaintiffs would not have satisfied the statutory requirements for tolling, the statute began to run when plaintiffs’ petition for appeal was denied in their most recent civil case, and plaintiffs filed the complaint over two years later. Miller v. King George County, 277 Fed. Appx. 297, 2008 U.S. App. LEXIS 10224 (4th Cir. 2008).

    Employee’s 42 U.S.C.S. § 1983 claim was time-barred under Virginia’s statute of limitations and was not tolled while her case was pending before the Equal Employment Opportunity Commission, as she could have requested a right-to-sue letter 180 days after she filed her discrimination charge. Abeles v. Metro. Wash. Airports Auth., 676 Fed. Appx. 170, 2017 U.S. App. LEXIS 1400 (4th Cir.), cert. denied, 138 S. Ct. 252, 199 L. Ed. 2d 190, 2017 U.S. LEXIS 4521 (2017).

    Applicability to federal prosecutions. —

    Statute of limitations on the arrestee’s claims was tolled during his state and then federal prosecutions under subsection K of § 8.01-229 because: (1) the facts that occurred on March 3, 2006, gave rise both to the arrestee’s criminal prosecution and to the present lawsuit, and the tolling provision did not require that the personal and criminal proceedings be based on the same facts or that they allege the same facts, rather, it required that both proceedings arise out of the same facts; (2) though subsection K appeared to contemplate that its principal application would be for state prosecutions, nothing within the provision reflected an intention that it not apply to federal prosecutions as well; (3) subsection K was unambiguous. Pinder v. Knorowski, 660 F. Supp. 2d 726, 2009 U.S. Dist. LEXIS 94030 (E.D. Va. 2009).

    Applicability to insurance claims. —

    General tolling statutes do not apply to required contractual limitations periods for insurance suits. Bilicki v. Windsor-Mount Joy Mut. Ins. Co., 954 F. Supp. 129, 1996 U.S. Dist. LEXIS 20400 (E.D. Va. 1996).

    Request for appointment of umpire for insurance arbitration did not toll contractual limitations period. Bilicki v. Windsor-Mount Joy Mut. Ins. Co., 954 F. Supp. 129, 1996 U.S. Dist. LEXIS 20400 (E.D. Va. 1996).

    Insured asserted three new rights of action, two for breach of contract, and one for declaratory relief, that all arose out of the same set of operative facts as the umpire proceeding, and given the broad scope of an “action” as defined by Virginia law, which included all civil proceedings whether upon claims at law, in equity, or statutory in nature, the umpire proceeding was an “action” that was nonsuited. Thus, pursuant to subdivision E 3 of § 8.01-229 , the act of nonsuiting that “action,” tolled the two year statute of limitations under § 38.2-2105 for all rights of action arising from that cause of action, including the insured’s present right of action for breach of contract and declaratory relief; liberal construction of the tolling statutes to include an umpire proceeding as an action the nonsuit of which tolled her right to file the instant action for damages, was therefore appropriate. Vaughan v. First Liberty Ins. Corp., No. 3:09cv364, 2009 U.S. Dist. LEXIS 108045 (E.D. Va. Nov. 13, 2009).

    Insured failed to comply with the condition precedent in her fire insurance policy of filing suit within two years of the loss because the policy’s period of limitations was not a statute of limitations subject to tolling, and the insurer’s use of “substantively” the same language as the standard policy form did not convert the contractual limitations period into a statute of limitations; the parties voluntarily chose to enter into a contract that contained a two-year period of limitations. Allstate Prop. & Cas. Ins. Co. v. Ploutis, 290 Va. 226 , 776 S.E.2d 793, 2015 Va. LEXIS 109 (2015).

    Applicability to workers’ compensation proceedings. —

    Subdivision A 1 of this section could not be applied to toll limitation period in workers’ compensation proceeding. Whetzel v. Waste Management of Virginia, 1999 Va. App. LEXIS 496 (Va. Ct. App. Aug. 10, 1999).

    Claim for medical expenses under subsection B of § 8.01-243 not tolled by subsection A. —

    A parent’s claim for medical expenses under subsection B of § 8.01-243 is not tolled by the provisions of subsection A. Hutto v. BIC Corp., 800 F. Supp. 1367, 1992 U.S. Dist. LEXIS 19990 (E.D. Va. 1992).

    In accordance with the provisions of subsection D, the time consumed while the automatic stay afforded by the bankruptcy laws is operative does not count toward the time limits for enforcing a mechanic’s lien. Concrete Structures, Inc. v. Tidewater Crane and Rigging Co., 261 Bankr. 627, 2001 U.S. Dist. LEXIS 3675 (E.D. Va. 2001).

    Actions on account stated. —

    Because a cause of action based on an account stated between a debtor and a creditor arose when a corporate officer of the debtor signed the statement of account less than four years before proceedings were commenced on the creditor’s claim in the debtor’s bankruptcy, the creditor’s claim was not barred by the Virginia statute of limitations. Official Comm. of Unsecured Creditors v. Fairchild Dornier GmbH (In re Dornier Aviation (N. Am.) Inc.), No. 02-82003-SSM, No. 02-8199-SSM, 2005 Bankr. LEXIS 561 (Bankr. E.D. Va. Feb. 8, 2005), aff'd, 453 F.3d 225, 2006 U.S. App. LEXIS 16101 (4th Cir. 2006).

    Statute tolled by act of fraud. —

    When a driver involved in an accident gave a police officer stolen identification, he affirmatively misrepresented his identity; this action involved fraud involving moral turpitude, had the effect of debarring or deterring the injured person from a tort action against the driver, and thus a trial court erred in holding that the driver’s conduct did not toll the statute of limitations. Newman v. Walker, 270 Va. 291 , 618 S.E.2d 336, 2005 Va. LEXIS 79 (2005).

    Activities not concealed. —

    Limitations period was not tolled as to landowners’ tort claims arising from a coal company’s dewatering operation, as the company did not conceal its activities; the company openly and publicly sought permission for the dewatering operation and published notice as required by law, and it openly constructed the dewatering pipeline over land. Blankenship v. Consolidation Coal Co., 850 F.3d 630, 2017 U.S. App. LEXIS 4168 (4th Cir. 2017).

    Action untimely even if tolled. —

    Domestic worker’s breach of contract claims were untimely; even assuming her claims were tolled until her escape from her employers, she did not allege that any action was taken to deter her from filing suit after her escape. Cruz v. Maypa, 773 F.3d 138, 2014 U.S. App. LEXIS 22560 (4th Cir. 2014).

    Obstruction of filing by defendant. —

    This statute tolls the limitations period when a defendant’s obstructive acts occur before a cause of action accrues, provided the defendant intended those acts to prevent inquiry, or to hinder a discovery of the cause of action by the use of ordinary diligence. If a defendant lacks that obstructive intent, however, there can be no tolling under this statute. Mackey v. McDannald, 298 Va. 645 , 842 S.E.2d 379, 2020 Va. LEXIS 60 (2020).

    In a conversion case, appellant’s misrepresentation that the stock in the name of a former law partnership had essentially no value was sufficient to toll the statute of limitations as to the executrix of one partner’s estate until the value of the stock was learned; however, as appellant showed no obstructive intent as to the other partners’ estates, the limitations period for their claims was not tolled. Mackey v. McDannald, 298 Va. 645 , 842 S.E.2d 379, 2020 Va. LEXIS 60 (2020).

    Statute of limitations begins to run on date foreign representative is qualified in Virginia. —

    Overruling prior precedent as to the running of the statute of limitations, the Supreme Court of Virginia reversed a trial court’s judgment dismissing a personal representative’s motion for judgment on a personal injury action against a physician as untimely under subdivision B 1 of § 8.01-229 where her qualification as a personal representative in another state and her prior motion for judgment filed while she was a foreign representative had no legal effect due to her lack of standing; the statute of limitations commenced upon the date she qualified as personal representative in Virginia. Harmon v. Sadjadi, 273 Va. 184 , 639 S.E.2d 294, 2007 Va. LEXIS 1 (2007).

    McDaniel v. North Carolina Pulp Co., 198 Va. 612 , 95 S.E.2d 201 (1956), which concerned the running of the statute of limitations, was overruled as there was no basis to carve out an exception to the otherwise clear precedent that lack of standing caused a party’s legal proceeding to be of no legal effect. Harmon v. Sadjadi, 273 Va. 184 , 639 S.E.2d 294, 2007 Va. LEXIS 1 (2007).

    Class action in another jurisdiction. —

    Products liability suit was time-barred because subdivision E 1 of § 8.01-229 did not toll the statute of limitations for unnamed putative class members due to the pendency of a putative class action in another jurisdiction and Virginia did not recognize equitable tolling of a statute of limitations based on those circumstances; as Virginia did not recognize class actions, a class representative was not recognized as having standing to sue in a representative capacity on behalf of a putative class and, thus, under Virginia law, there was no identity of parties between the named plaintiff in a putative class action and putative class members suing individually in a later action. For tolling to be allowed under subdivision E 1 of § 8.01-229 , the later filed case had to be filed by the same party in interest, and thus § 8.01-229 did not toll the statute of limitations for unnamed putative class members under these circumstances. Casey v. Merck & Co., 283 Va. 411 , 722 S.E.2d 842, 2012 Va. LEXIS 48 (2012).

    Motion to amend under subdivision B 2 b. —

    Trial court erred in finding that a decedent’s administrator was the defendant in a personal injury action as, although a motion to amend the judgment under subdivision B 2 b of § 8.01-229 was proper, language naming the decedent’s estate, administrator, in the caption was ambiguous when the motion to amend the judgment was read as a whole; the wrong defendant was named, § 8.01-6 did not apply, and the misjoinder could not be legitimized by substituting the correct party. Estate of James v. Peyton, 277 Va. 443 , 674 S.E.2d 864, 2009 Va. LEXIS 60 (2009) (decided prior to enactment of § 8.01-6.3 ).

    B.Dismissal, Abatement or Nonsuit.

    A federal court sitting in diversity must honor Virginia law restricting the court within which a nonsuited plaintiff may recommence in order to invoke the saving provision, as the Virginia restriction is an integral part of the several policies served by Virginia’s statutes of limitations and must be applied in consolidated federal diversity actions. Yarber v. Allstate Ins. Co., 674 F.2d 232, 1982 U.S. App. LEXIS 20861 (4th Cir. 1982).

    The effect of an application of the tolling provision of subdivision E 1 of this section is to grant an extended period during which a claim arising after October 1, 1977, might be prosecuted. This provision is not merely procedural or remedial. Strickland v. Simpkins, 221 Va. 730 , 273 S.E.2d 539, 1981 Va. LEXIS 202 (1981).

    For purposes of subdivision E 1, a dismissal with prejudice is a determination on the merits. Gilbreath v. Brewster, 250 Va. 436 , 463 S.E.2d 836, 1995 Va. LEXIS 146 (1995).

    Subdivision E 3 applies only where plaintiff voluntarily dismissed action. —

    Section 8.01-380 pertains exclusively to limitations on the plaintiff ’s ability to obtain a nonsuit and the organization of subsection E supports the conclusion that subdivision E 3 applies only where the plaintiff has voluntarily dismissed an action. Ambrose Branch Coal Co. v. Tankersley, 106 Bankr. 462, 1989 U.S. Dist. LEXIS 12848 (W.D. Va. 1989).

    When a scientist took a voluntary nonsuit in his original state court defamation action against a newspaper, he did so with respect to the set of operative facts underlying his complaint, namely the newspaper’s publication of a reporter’s columns. When he filed the instant defamation action in federal court, the tolling provision of § 8.01-229 saved all rights of action arising from that cause of action. Hatfill v. New York Times Co., 416 F.3d 320, 2005 U.S. App. LEXIS 15471 (4th Cir. 2005), cert. denied, 547 U.S. 1040, 126 S. Ct. 1619, 164 L. Ed. 2d 333, 2006 U.S. LEXIS 2518 (2006).

    Subsection E does not apply to claims for workers’ compensation. Hammond v. Madison Decorating Corp., No. 0884-85 (Ct. of Appeals Mar. 19, 1986).

    Subdivision E 3 of this section is inapplicable to wrongful death actions because § 8.01-244 B controls. Dodson v. Potomac Mack Sales & Serv., Inc., 241 Va. 89 , 400 S.E.2d 178, 7 Va. Law Rep. 1327, 1991 Va. LEXIS 2 (1991); Flanagan v. Virginia Beach Gen. Hosp., 406 S.E.2d 914, 8 Va. Law Rep. 433, 1991 Va. LEXIS 121 (Va. 1991).

    Because subdivision E 3 of this section deals generally with the subject of tolling statutes of limitations and conflicts with § 8.01-244 B, which deals specifically with the tolling of wrongful death actions, the latter section controls for two reasons: First, § 8.01-228 provides in pertinent part that every action for which a limitation period is prescribed by law must be commenced within the period prescribed in this chapter unless otherwise specifically provided in the Code. Section 8.01-244 B provides for the limitation of wrongful death actions and a tolling period in a specific way, and thus “otherwise specifically provides” its own requirements. Second, in construing conflicting statutes, when one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, where they conflict, the latter prevails. Dodson v. Potomac Mack Sales & Serv., Inc., 241 Va. 89 , 400 S.E.2d 178, 7 Va. Law Rep. 1327, 1991 Va. LEXIS 2 (1991).

    The 1983 version of subdivision E 3 should apply prospectively, and not retroactively. Sherman v. Hercules, Inc., 636 F. Supp. 305, 1986 U.S. Dist. LEXIS 24992 (W.D. Va. 1986).

    Procedure under 1978 version of subdivision E 3. —

    Under subdivision E 3 of this section (1978 version) and § 8.01-380 (1977 version) if a plaintiff took a nonsuit, the statute of limitations would be tolled provided that the plaintiff recommenced the action in the same court in which the nonsuit was taken within six months. Thus, where plaintiffs filed their actions in federal court in 1980, took voluntary dismissals in 1985, and recommenced their actions within six months, they were entitled to invoke the tolling provision of the 1978 version of subdivision E 3 of this section to save their cases from the personal injury statute of limitations. Sherman v. Hercules, Inc., 636 F. Supp. 305, 1986 U.S. Dist. LEXIS 24992 (W.D. Va. 1986).

    The Virginia Code quite clearly requires the state courts to give effect to FRCP 41 dismissals as nonsuits, for subdivision E 3 provides in terms that it “. . . shall apply irrespective of whether the action is originally filed in a federal or state court and recommenced in any court.” Scoggins v. Douglas, 760 F.2d 535, 1985 U.S. App. LEXIS 31006 (4th Cir. 1985).

    The district court was correct when it equated dismissal pursuant to FRCP 41(a)(1) to a dismissal under subdivision E 3 of this section rather than to a dismissal under subdivision E 1. Scoggins v. Douglas, 760 F.2d 535, 1985 U.S. App. LEXIS 31006 (4th Cir. 1985).

    The difference in a FRCP Rule 41 dismissal and a Virginia nonsuit under § 8.01-380 goes more to matters of form than substance. While the Virginia statute does not require the consent of the defendant and can be taken at later stages in the proceeding, both the federal rule and the Virginia statute have as their purpose the voluntary dismissal of an action by a plaintiff without prejudice at some stage of a proceeding. Scoggins v. Douglas, 760 F.2d 535, 1985 U.S. App. LEXIS 31006 (4th Cir. 1985).

    Requiring compliance with the tolling provisions of subsection E is consistent with federal law, and the mere placing of a time constraint on the filing of a § 1983 action is not a consideration sufficient to find an inconsistency. Scoggins v. Douglas, 760 F.2d 535, 1985 U.S. App. LEXIS 31006 (4th Cir. 1985).

    Cause of action under 42 U.S.C. § 1983, which accrued on Dec. 17, 1980, was barred by Virginia’s two-year statute of limitations for personal injury actions, where the action was voluntarily dismissed by the plaintiff without prejudice on Jan. 26, 1982, pursuant to FRCP 41(a)(1), and was not refiled until Dec. 27, 1982. Scoggins v. Douglas, 760 F.2d 535, 1985 U.S. App. LEXIS 31006 (4th Cir. 1985).

    Tolling provisions inapplicable to certain federal actions. —

    As the employee did not file suit until January 8, 2009, more than two years after receiving the right-to-sue notice, her Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., claims were untimely; the 90-day period of limitation applicable to the Title VII claims was not tolled, pursuant to § 8.01-229 , as a result of her voluntary nonsuit. Pendleton v. Nat'l Wildlife Fed'n, No. 5:10CV00009, 2010 U.S. Dist. LEXIS 29433 (W.D. Va. Mar. 26, 2010).

    Section 8.01-229 , which provides that the applicable statute of limitations is tolled by the commencement of a nonsuited action and for six months thereafter, does not apply to the time limits set forth in a federal statute; Because the Title VII action is governed by a federal statute of limitations, state tolling provisions were not applicable. Pendleton v. Nat'l Wildlife Fed'n, No. 5:10CV00009, 2010 U.S. Dist. LEXIS 29433 (W.D. Va. Mar. 26, 2010).

    Subsection E applies to actions filed in federal court, as well as to actions filed in state court, and the time a case is pending in federal court is, accordingly, not computed as part of the statutory period within which suit must be brought. Welding, Inc. v. Bland County Serv. Auth., 261 Va. 218 , 541 S.E.2d 909, 2001 Va. LEXIS 36 (2001).

    All claims except plaintiff drug purchaser’s fraud claim against defendant pharmaceutical company would have been time-barred because they accrued pursuant to § 8.01-230 as of the date of injury (which was when she was diagnosed with breast cancer and not when she discovered that her cancer was related to taking defendant’s drug) in the absence of a cross-jurisdictional tolling rule applicable to federal class action suits. The statute of limitations was tolled for all claims by operation of subdivision E 1 of § 8.01-229 based on a previously filed class action suit in federal court of which plaintiff was a putative member, and the tolling brought all claims within § 8.01-243 ’s two-year filing window, since the Supreme Court of Virginia had concluded that the sweeping language of subdivision E 1 of § 8.01-229 allowed tolling of prior suits arising in both state and federal courts. Torkie-Tork v. Wyeth, 739 F. Supp. 2d 887, 2010 U.S. Dist. LEXIS 60630 (E.D. Va. 2010).

    Federal dismissal not a bar to nonsuit. —

    Employee’s prior dismissal of a federal lawsuit did not bar his right to take a nonsuit as a matter of right under subsection B of § 8.01-380 in a Virginia state court because a voluntary dismissal in federal court was not treated as a voluntary nonsuit prescribed in § 8.01-380 ; the right to take a nonsuit pursuant to § 8.01-380 in a Virginia state court was much more expansive than the right to a voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) in federal court. The plain language of subdivision E 3 of § 8.01-229 demonstrated that the reference to actions originally filed in federal court applied only to the application of the tolling provision. INOVA Health Care Servs. v. Kebaish, 284 Va. 336 , 732 S.E.2d 703, 2012 Va. LEXIS 170 (2012).

    Tolling provision not retroactive. —

    The tolling provision of subdivision E 3 of this section is not to be applied retroactively to an action which arose and was pending prior to October 1, 1977. Wood v. Holcombe, 221 Va. 691 , 273 S.E.2d 541, 1981 Va. LEXIS 194 (1981).

    The tolling provision of subdivision E 3 of this section applies only to causes or rights of action accruing on or after October 1, 1977. Fidelity & Deposit Co. v. Celotex Corp., 221 Va. 698 , 273 S.E.2d 542, 1981 Va. LEXIS 196 (1981).

    A claim under the Workers’ Compensation Act is not an “action” within the meaning of this title; therefore, subdivision E 1 of this section does not toll the running of the statute of limitations on claims made under the Workers’ Compensation Act. Musick v. Codell Constr. Co., 4 Va. App. 471, 358 S.E.2d 739, 4 Va. Law Rep. 144, 1987 Va. App. LEXIS 200 (1987).

    Subdivision E 3 tolled the statute of limitations upon plaintiff ’s commencement of the original action but, because defendant was not served with process until more than one year after such commencement, Rule 3:3 [see now Rule 3:5] forbade entry of any judgment against defendant in that action, and the action ended with entry of the order allowing a nonsuit pursuant to § 8.01-380 , however, subdivision E 3 intervened to give plaintiff a six-month period after entry of the nonsuit order in which to recommence his action and by recommencing the action within the allowed period plaintiff insulated his claim against a plea of the statute limitations. Clark v. Butler Aviation-Washington Nat'l, Inc., 238 Va. 506 , 385 S.E.2d 847, 6 Va. Law Rep. 718, 1989 Va. LEXIS 159 (1989).

    Statute of limitations tolled by voluntary dismissal and refiling. —

    Statutes of limitation applicable to a buyer’s claims of fraud and breach of contract were tolled when the buyer’s state action was filed because the buyer’s federal suit was filed within six months of the dismissal without prejudice of the state action. Rapoca Energy Co., LLP v. J.L. Mining Co., 368 F. Supp. 2d 541, 2005 U.S. Dist. LEXIS 8155 (W.D. Va. 2005).

    As a trial court erred in vacating a second nonsuit order entered in favor of a patient in her second malpractice suit against a podiatrist, it also erred in finding that the patient’s third malpractice suit was time barred under § 8.01-243 , since it was filed within six months of the entry of the second nonsuit order, as permitted by subdivision E 3 of § 8.01-229 . Janvier v. Arminio, 272 Va. 353 , 634 S.E.2d 754, 2006 Va. LEXIS 88 (2006).

    Where a subcontractor filed a suit alleging breach of warranty against a grout distributor after its first suit against the distributor was dismissed without prejudice, the second suit was timely because the limitations period was tolled under subdivision E 1 of § 8.01-229 while the first suit was pending because both suits were based on the same facts and effectively asserted the same claims, and it was not relevant that the second suit was filed prior to the dismissal of the first suit. RCI Contrs. & Eng'rs, Inc. v. Joe Rainero Tile Co., 677 F. Supp. 2d 914, 2010 U.S. Dist. LEXIS 1674 (W.D. Va. 2010).

    In a diversity medical malpractice case in which the patient voluntarily nonsuited her state case and added two new claims and defendants, citing the Virginia two-year statute of limitations for personal injury claims, § 8.01-243 , filed a motion to dismiss the federal complaint with respect to the newly-pled claims of failure to perform an alternative procedure and lack of informed consent, all of the patient’s current claims related to a common transaction or occurrence, and therefore constituted a single cause of action. Because her additional claims were included within the nonsuited cause of action, as defined by the nonsuit statute, they were also properly considered as part of the nonsuited action that could be recommenced within six months of the nonsuit, as understood by the nonsuit statute of limitations tolling provision. Dunston v. Huang, 709 F. Supp. 2d 414, 2010 U.S. Dist. LEXIS 22844 (E.D. Va. 2010).

    Limitations not tolled under E 3 where second action not brought within six months. —

    Where a patient filed a medical malpractice action against a variety of defendants, which she then nonsuited pursuant to § 8.01-380 , and her renewed action was not commenced within the two-year limitations period of § 8.01-243 A, nor was it filed within the six-month period from the date of the nonsuit order pursuant to § 8.01-229 E 3, her action was barred by the limitations period. Simon v. Forer, 265 Va. 483 , 578 S.E.2d 792, 2003 Va. LEXIS 43 (2003).

    Tolling provision does not apply to contractual period of limitations. —

    The plain meaning of the phrase in subdivision E 3 “the statute of limitations with respect to such action shall be tolled by the commencement of the nonsuited action,” is that, after a voluntary nonsuit, the statute of limitations, not a contractual period of limitations, is tolled, and the plaintiff may recommence the suit within six months or within the original period of limitations, whichever is longer. Massie v. Blue Cross & Blue Shield, 256 Va. 161 , 500 S.E.2d 509, 1998 Va. LEXIS 101 (1998).

    Tolling provision applies to contractual limitations period mandated by statute. —

    Where an insurance policy’s limitations period derives from a statute, such as § 38.2-2105, tolling of the limitations period under subdivision E 3 of this section operates in the event of a voluntary nonsuit. Zaeno Int'l v. State Farm Fire & Cas., 152 F. Supp. 2d 882, 2001 U.S. Dist. LEXIS 11702 (E.D. Va. 2001).

    Tolling provision does not apply to claims under Federal Tort Claims Act. —

    District court lacked jurisdiction to hear plaintiff’s claim under the Federal Tort Claims Act (FTCA) because plaintiff did not timely file her FTCA suit in a district court within six months of the denial of her administrative claim. The fact that § 8.01-229 allowed nonsuits to toll the statute of limitations for six months had no effect on the FTCA statute of limitations because the limitations period was defined by federal law, rather than state law. Kinson v. United States, 322 F. Supp. 2d 684, 2004 U.S. Dist. LEXIS 11862 (E.D. Va. 2004).

    Tolling of time to bring contract action against public body. —

    There is no conflict between this section and § 11-69 (see § 2.2-4363), establishing the time limit for filing a contract action against a public body, because § 11-69 does not address the tolling of actions, which is the subject of this section; the time limit for filing suit established by § 11-69 thus may be extended due to application of this statutory tolling provision. Welding, Inc. v. Bland County Serv. Auth., 261 Va. 218 , 541 S.E.2d 909, 2001 Va. LEXIS 36 (2001).

    Dismissal because of death of party before appeal. —

    Dismissal of a former spouse’s appeal was appropriate because the former spouse was required to name the late ex-spouse’s personal representative, not the ex-spouse’s estate, as the party in interest when the spouse was asserting an action against the ex-spouse personally based upon the terms of the parties’ premarital agreement and the ex-spouse died, and the former spouse’s failure to do so nullified the former spouse’s appeal. Loewinger v. Estate of Loewinger, 64 Va. App. 1, 763 S.E.2d 826, 2014 Va. App. LEXIS 345 (2014).

    Once trial court has decided particular claim, that portion of action has been submitted for decision and the plaintiff may no longer suffer a nonsuit of that claim as a matter of right. Therefore, when the trial court has reached a final determination in a proceeding regarding any claims or parties to claims, those claims and parties are excluded by operation of law from any nonsuit request. Smith v. Consolidation Coal Co., 7 F. Supp. 2d 751, 1998 U.S. Dist. LEXIS 8337 (W.D. Va. 1998).

    Plaintiff could still file her motion for judgment recommencing her action on the following Monday, where six months from her voluntary nonsuit fell on a Saturday. Ward v. Insurance Co. of N. Am., 253 Va. 232 , 482 S.E.2d 795, 1997 Va. LEXIS 33 (1997).

    Motion to dismiss granted. —

    Where an estate representative filed a second wrongful death lawsuit before, rather than after, entry of a nonsuit order in the first lawsuit, the tolling provisions of subdivision E 3 of § 8.10-229 were inapplicable, and thus, defendants’ motion to dismiss on statute of limitations grounds was granted because the second action was filed outside the applicable two year limitations period. Payne v. Brake, 337 F. Supp. 2d 800, 2004 U.S. Dist. LEXIS 18990 (W.D. Va. 2004), aff'd, 439 F.3d 198, 2006 U.S. App. LEXIS 5141 (4th Cir. 2006).

    Improper use of regularly issued process was not shown in an employee’s motion for judgment claiming abuse of process against a professional corporation and its owner by the fact that they nonsuited a cross-bill against her and refused to dismiss it with prejudice; the possibility that litigation might be refiled after a nonsuit was not a threat amounting to coercion since all nonsuits carry that right with them under §§ 8.01-380 B and 8.01-229 E 3. Montgomery v. McDaniel, 271 Va. 465 , 628 S.E.2d 529, 2006 Va. LEXIS 41 (2006).

    Product liability action against a drug manufacturer was time-barred under subsection A of § 8.01-243 because plaintiff, who alleged that her breast cancer was caused by a drug, did not file the action within two years of her diagnosis and tolling was not warranted under subsection D of § 8.01-229 where the manufacturer’s conduct did not obstruct plaintiff’s filing of the action. Flick v. Wyeth LLC, No. 3:12-cv-00007-NKM, 2012 U.S. Dist. LEXIS 78900 (W.D. Va. June 6, 2012).

    In the amended complaint alleging numerous breaches of the fiduciary duties of loyalty and care by the managers of plaintiff, a limited liability company, the circuit court did not err in granting defendants’ plea in bar and in dismissing the amended complaint with prejudice because neither an irrevocable conflict of interest nor a breach of fiduciary duty was listed as a trigger for the tolling of the statute of limitations. Birchwood-Manassas Assocs., L.L.C. v. Birchwood at Oak Knoll Farm, L.L.C., 290 Va. 5 , 773 S.E.2d 162, 2015 Va. LEXIS 76 (2015).

    Complaints timely, even though filed before nonsuit orders. —

    Dismissal of later actions as untimely was error because, under subdivision E 3 of § 8.01-229 , a new action had to be filed within six months from the date of the nonsuit order in a prior action; because the complaints were refiled within six months of nonsuit orders, they were timely, even though the second complaints were filed before the nonsuit orders in prior case. Laws v. McIlroy, 283 Va. 594 , 724 S.E.2d 699, 2012 Va. LEXIS 85 (2012).

    Voluntary nonsuit tolled statute of limitations. —

    In a case where plaintiff’s incorrect use of defendant’s name was a misnomer and not a misjoinder, upon the filing of the 2011 complaint, the statute of limitations was tolled by operation of this statute, and, when plaintiff took a voluntary nonsuit, the statute of limitations was tolled for an additional six months from the date of the nonsuit; thus, because plaintiff filed the 2012 complaint within that six-month period and correctly named the defendant, the trial court erred in granting the plea in bar. Richmond v. Volk, 291 Va. 60 , 781 S.E.2d 191, 2016 Va. LEXIS 4 (2016).

    C.Effect of New Promise in Writing.

    Effect of new promise in writing is to begin the running of a new statute of limitations permitting suit within such number of years after such promise as it might be maintained if such promise were the original cause of action. Nevertheless, consistent with the foregoing rule, the new promise may be governed by a shorter, private contractual period in lieu of the statutory period of limitations. Board of Supvrs. v. Sampson, 235 Va. 516 , 369 S.E.2d 178, 4 Va. Law Rep. 3024, 1988 Va. LEXIS 94 (1988).

    When a lessee assumed an unexpired lease as part of its bankruptcy reorganization plan, under 11 U.S.C.S. § 1123(b)(2), this was not a new promise to pay, under subsection G of § 8.01-229 because it did nothing more than determine the status of the lessor’s claim, namely whether it was merely a pre-petition obligation of the debtor or was entitled to priority as an expense of administration of the estate, so a new limitations period, as to an action by the lessor against the lessee’s sureties, did not begin when the lessee defaulted after assuming the lease. Rest. Co. v. United Leasing Corp., 271 Va. 529 , 628 S.E.2d 520, 2006 Va. LEXIS 40 (2006).

    When a lessee assumed an unexpired lease as part of its bankruptcy reorganization plan, under 11 U.S.C.S. § 1123(b)(2), this was not a new promise to pay because, for an acknowledgment in writing to operate as a new promise to pay, and commence the running of a new statute of limitations period, it could not consist of equivocal, vague and indeterminate expressions, but had to contain an unqualified and direct admission of a previous, subsisting debt, which the party was liable for and willing to pay, and the lessee’s reorganization plan merely stated that the lease would be assumed in its entirety, containing no language about paying a “previous, subsisting debt.” Rest. Co. v. United Leasing Corp., 271 Va. 529 , 628 S.E.2d 520, 2006 Va. LEXIS 40 (2006).

    Part payment of the principal or payment of interest, standing alone, does not toll or remove the bar of the statute of limitations. Guth v. Hamlet Assocs., 230 Va. 64 , 334 S.E.2d 558, 1985 Va. LEXIS 252 (1985).

    When payment by check is involved, the rule is based on the requirement that a writing, to be an acknowledgment under the statute, must be an unqualified admission of a subsisting debt which the party is liable for and willing to pay. Guth v. Hamlet Assocs., 230 Va. 64 , 334 S.E.2d 558, 1985 Va. LEXIS 252 (1985).

    Reports on interest and balance and tax forms were acknowledgments although otherwise required. —

    The fact that status reports showing monthly interest earned and the balance of principal and interest due and tax forms to pay the debts because the documents had to be prepared under the contracts and the law did not make the reports insufficient as acknowledgments. Subsection G does not distinguish between “necessary” and “gratuitous” writings. Guth v. Hamlet Assocs., 230 Va. 64 , 334 S.E.2d 558, 1985 Va. LEXIS 252 (1985).

    And were attributable to guarantor. —

    Status reports showing monthly interest earned and the balance of principal and interest due and tax forms were attributable to the guarantor on promissory notes, for purposes of determining whether the reports constituted acknowledgment of the debt. Guth v. Hamlet Assocs., 230 Va. 64 , 334 S.E.2d 558, 1985 Va. LEXIS 252 (1985).

    Statute of limitations revived. —

    Subsection G provides that if a person who is liable for a debt on a contract makes a new written promise to pay the debt on that contract, then the person owed the debt may maintain an action for the money so promised within a revived statute of limitations running from the date of the new promise. Cadle Co. v. Berkeley Plaza Assocs., No. 99-1908, 2000 U.S. App. LEXIS 10910 (4th Cir. May 17, 2000).

    Intent of parties may be question of fact. —

    The question of whether the terms of a writing constituted a new promise to pay turns upon the intent of the alleged promisor and, if there is more than one permissible inference as to intent to be drawn from the language employed, the question of the parties’ actual intention is a triable issue of fact. Cadle Co. v. Berkeley Plaza Assocs., No. 99-1908, 2000 U.S. App. LEXIS 10910 (4th Cir. May 17, 2000).

    D.Third-party Claims Where Original Action Commenced Within 30 Days of Expiration of Period.

    Time for defendant to bring action against third-party defendant. —

    The 1983 amendment to this section makes clear that at any time a plaintiff waits to the eleventh hour to file a lawsuit against a defendant who has a claim (whether it be contribution, indemnity, or otherwise) against a third-party defendant, then the original defendant shall have 60 days in which to bring his action, notwithstanding the fact that the statute of limitations may have run against the original plaintiff. Wingo v. Norfolk & W. Ry., 638 F. Supp. 107, 1986 U.S. Dist. LEXIS 25214 (W.D. Va. 1986).

    Tolling provision for minor’s claim inapplicable to parent’s claim. —

    The statute of limitations tolling provision for a minor’s claim does not apply to a parent’s claim for medical expenses and emotional distress stemming from the same incident of alleged malpractice; the parent’s claims are subject to the limitation period of § 8.01-243 (B). Perez ex rel. Perez v. Espinola, 749 F. Supp. 732, 1990 U.S. Dist. LEXIS 15150 (E.D. Va. 1990).

    E.Effect of Disability.

    Infancy. —

    An infant may bring an action by a next friend at any time during the continuance of his infancy or, after the disability is removed, in his own name within such time as allowed under this section and the prescribed limitation period. Rivera v. Nedrich, 259 Va. 1 , 529 S.E.2d 310, 1999 Va. LEXIS 140 (1999).

    An incapacitated person does not include a debtor in a bankruptcy case. —

    Bankruptcy court found that the Virginia statute of limitations was not tolled as to the debtor or his present trustee during the period that the debtor’s prior bankruptcy was pending and that the case was time-barred. Meiburger v. Ocwen Fed. Bank, FSB, 307 Bankr. 517, 2003 Bankr. LEXIS 1984 (Bankr. E.D. Va. 2003).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    The cases cited below were decided under corresponding provisions of former law. The terms “the statute of limitations” and “this section,” as used below, refer to former provisions.

    B.Effect of Disability.

    Section creates no new right to sue, since its very terms referred to a preexisting right established outside the section and not to any separate and distinct right born within the section itself. Hurdle v. Prinz, 218 Va. 134 , 235 S.E.2d 354, 1977 Va. LEXIS 174 (1977).

    Application of § 1-13.42 [see now § 1-204], fixing age of majority at 18. —

    Application of the age of majority statute to the plaintiffs, both of whom were under the age of 21 at the time their causes of action accrued prior to the enactment of the statute, causing the statute of limitations to run from the time plaintiffs reached the age of 18 rather than from the age of 21 as at common law, was not error. Hurdle v. Prinz, 218 Va. 134 , 235 S.E.2d 354, 1977 Va. LEXIS 174 (1977).

    Section could not properly be read to delay until age 21 the running of the statute of limitations on causes of action for personal injury which accrued while plaintiffs were under 21 years of age, where § 1-13.42 [see now § 1-204], changing the age of majority and therefore changing the status of plaintiffs, was enacted before plaintiffs reached 21. Hurdle v. Prinz, 218 Va. 134 , 235 S.E.2d 354, 1977 Va. LEXIS 174 (1977).

    Infancy of beneficiary of wrongful death action. —

    The statute of limitations for wrongful death actions was not tolled by reason of infancy of the beneficiary of the wrongful death action, since the infant’s disability could not prevent the timely institution of the action in view of the fact that wrongful death actions may be brought only by and in the name of the personal representative of the deceased. Beverage v. Harvey, 602 F.2d 657, 1979 U.S. App. LEXIS 12804 (4th Cir. 1979).

    Tacking successive disabilities not allowed. —

    Where a disability existing at the time the cause of action accrued is removed, another disability arising subsequently cannot be tacked to it, to avoid the bar of the statute. Fitzhugh v. Anderson, 12 Va. (2 Hen. & M.) 289, 1808 Va. LEXIS 40 (1808); Hudson v. Hudson, 20 Va. (6 Munf) 352, 1819 Va. LEXIS 23 (1819); Parsons v. M'Cracken, 36 Va. (9 Leigh) 495, 1838 Va. LEXIS 38 (1838); Hancock v. Hutcherson, 76 Va. 609 , 1882 Va. LEXIS 63 (1882); Blackwell v. Bragg, 78 Va. 529 , 1884 Va. LEXIS 28 (1884); McDonald v. Hovey, 110 U.S. 619, 4 S. Ct. 142, 28 L. Ed. 269, 1884 U.S. LEXIS 1723 (1884).

    But in case of coexisting disabilities, last must be removed before statute begins to run. —

    Where there are two or more disabilities coexisting in the same person when his right of action accrues, he is not obliged to act until the last is removed. Wilson v. Branch, 77 Va. 65 , 4 Ky. L. Rptr. 841, 1883 Va. LEXIS 37 (1883); Blackwell v. Bragg, 78 Va. 529 , 1884 Va. LEXIS 28 (1884).

    Suits by next friend. —

    Persons under disability when their rights accrue, may prosecute any remedy in equity they are entitled to, by prochein ami at any time while the disability continues. Hansford v. Elliott, 36 Va. (9 Leigh) 79, 1837 Va. LEXIS 62 (1837).

    Statute does not begin to run until infant reaches majority. —

    If one is an infant when his right accrues, the statute of limitations does not run against the right until he attains the age of 21 (now 18). Baird v. Bland, 17 Va. (3 Munf) 570, 1813 Va. LEXIS 38 (1813); Brown v. Lambert, 74 Va. (33 Gratt.) 256, 1880 Va. LEXIS 39 (1880); Redford v. Clarke, 100 Va. 115 , 40 S.E. 630 , 1902 Va. LEXIS 5 (1902).

    This applies to claim of infant for legacy. —

    Where a testator bequeathed property to an infant son, the act of limitations never could begin to run against the claim and title of the son to the property till he attained a full age. Lynch v. Thomas, 30 Va. (3 Leigh) 682, 1832 Va. LEXIS 20 (1832).

    “Insane” defined. —

    The term “insane” as used in statutes extending the time within which to commence an action has been held to mean such a condition of mental derangement as actually to bar the sufferer from comprehending rights which he is otherwise bound to know. Williams v. Westbrook Psychiatric Hosp., 420 F. Supp. 322, 1976 U.S. Dist. LEXIS 13148 (E.D. Va. 1976).

    Where sanity is basis of action for wrongful confinement. —

    A plaintiff may not rely on an adjudication of insanity to toll the statute of limitations and, at the same time, allege wrongfulness of confinement and treatment due to alleged sanity. Williams v. Westbrook Psychiatric Hosp., 420 F. Supp. 322, 1976 U.S. Dist. LEXIS 13148 (E.D. Va. 1976).

    Statute not tolled during period of imprisonment. —

    If a committee for a prisoner does not institute a suit promptly, the prisoner’s rights may be lost since the Virginia statute of limitations is not tolled during the period of incarceration, as it is in many states treating a prisoner as incapable of maintaining litigation. Almond v. Kent, 459 F.2d 200, 1972 U.S. App. LEXIS 10178 (4th Cir. 1972).

    This section has no reference to nonresidents. —

    See Baber v. Baber, 121 Va. 740 , 94 S.E. 209 , 1917 Va. LEXIS 72 (1917).

    C.Effect of Death of a Party.

    Subsection B has no application to appeals and writs of error. Williams v. Dean, 144 Va. 831 , 131 S.E. 1 , 1925 Va. LEXIS 237 (1925).

    Subdivisions B 1 and 2 do not apply to real actions. Steffey v. King, 126 Va. 120 , 101 S.E. 62 , 1919 Va. LEXIS 80 (1919) (see Barley v. Duncan, 177 Va. 192 , 13 S.E.2d 294 (1941)).

    Does not include trustee in deed of trust. —

    Since the trustee named in a deed of trust is given no authority or right of his own to institute a suit to foreclose a deed of trust, he has no right or remedy to lose or to preserve within the meaning of this section, and this section does not apply to the death of a trustee. Boggs v. Fatherly, 177 Va. 259 , 13 S.E.2d 298, 1941 Va. LEXIS 214 (1941).

    Cause of action to recover for services rendered decedent in return for oral promise to make will was “capable of coming into existence during the life” of decedent, thus this section applied so as to make the limitation four years from decedent’s death instead of three years under § 8.01-246 (4) . Archer v. National Bank, 194 Va. 641 , 74 S.E.2d 153, 1953 Va. LEXIS 129 (1953).

    Subdivision B 4 does not apply to the claim of a residuary legatee. Wilson v. Butt, 168 Va. 259 , 190 S.E. 260 , 1937 Va. LEXIS 221 (1937).

    Debtor cannot revive judgment of deceased creditor. —

    Upon the death of a judgment creditor, the judgment debtor has no authority to revive the judgment in the name of the personal representative of the judgment creditor. City of Charlottesville v. Stratton's Adm'r, 102 Va. 95 , 45 S.E. 737 , 1903 Va. LEXIS 107 (1903).

    But creditor may sue in equity without first reviving judgment. —

    A judgment creditor may bring a suit in equity against the personal representative and heirs or devisees of his deceased judgment debtor without first reviving his judgment. James v. Life, 92 Va. 702 , 24 S.E. 275 , 1896 Va. LEXIS 33 (1896).

    D.Prevention of Service by Defendant.

    Subsection D does not grant a right and a remedy but merely grants or extends and enlarges a remedy. Duffy v. Hartsock, 187 Va. 406 , 46 S.E.2d 570, 1948 Va. LEXIS 231 (1948).

    It applies only to persons living when the right of action accrued, its object being to stop the running of the statute of limitations as to the classes of persons therein mentioned, as long as they obstructed the prosecution of any such right of action as is mentioned in this chapter. Templeman v. Pugh, 102 Va. 441 , 46 S.E. 474 , 1904 Va. LEXIS 88 (1904).

    Removal is itself an obstruction. —

    Where a debtor who resides in the State removes, after contracting the debt, to another state, the removal is itself an obstruction to the prosecution of a suit by the creditor to recover the debt, and the statute of limitations will not run against the debt whilst the debtor resides out of the State. Ficklin v. Carrington, 72 Va. (31 Gratt.) 219, 1878 Va. LEXIS 40 (1878). But see Wilson v. Koontz, 11 U.S. 202, 3 L. Ed. 315, 1812 U.S. LEXIS 387 (1812); Brown v. Butler, 87 Va. 621 , 13 S.E. 71 , 1891 Va. LEXIS 114 (1891).

    The burden of proving removal of the defendant from the State is on the plaintiff. Pilson v. Bushong, 70 Va. (29 Gratt.) 229, 1877 Va. LEXIS 18 (1877); Lindsay v. Murphy, 76 Va. 428 , 1882 Va. LEXIS 48 (1882); Brown v. Butler, 87 Va. 621 , 13 S.E. 71 , 1891 Va. LEXIS 114 (1891).

    Section inapplicable where substituted service provided. —

    Where, under §§ 8.01-301 through 8.01-312 , plaintiff can obtain service of process upon defendant before the expiration of the two-year limitation period prescribed by § 8.01-243 and secure a valid personal judgment if he is so entitled, his remedy is complete and unaffected by the absence of defendant, and subsection D is not applicable. Bergman v. Turpin, 206 Va. 539 , 145 S.E.2d 135, 1965 Va. LEXIS 231 (1965).

    Temporary absence does not affect running of statute. —

    A carpenter going from place to place in different states and working at his trade has not left the State within the meaning of this section. Brown v. Butler, 87 Va. 621 , 13 S.E. 71 , 1891 Va. LEXIS 114 (1891).

    Mere silence is not fraudulent concealment of facts. —

    The concealment of a cause of action which will prevent the running of the statute of limitations must consist of some trick or artifice preventing inquiry, or calculated to hinder a discovery of the cause of action by the use of ordinary diligence. Mere silence is not sufficient. The fraud which will relieve the bar of the statute must be of that character which involves moral turpitude and must have the effect of debarring or deterring the plaintiff from his action. Culpeper Nat'l Bank v. Tidewater Imp. Co., 119 Va. 73 , 89 S.E. 118 , 1916 Va. LEXIS 77 (1916).

    Constructive fraud is not such as will toll the running of the statute of limitations. The character of fraud necessary to toll the statute must be of a variety involving moral turpitude. A defendant must intend to conceal the discovery of the cause of action by trick or artifice and must have thus actually concealed it from the plaintiff in order for the exception to apply. Richmond Redevelopment & Hous. Auth. v. Laburnum Constr. Corp., 195 Va. 827 , 80 S.E.2d 574, 1954 Va. LEXIS 162 (1954); Hawks v. DeHart, 206 Va. 810 , 146 S.E.2d 187, 1966 Va. LEXIS 154 (1966).

    Fraudulent concealment of shortages by depository of public funds. —

    A bank, which had aided and abetted a county treasurer in a scheme to conceal shortages in his treasurer’s account, and had made false certifications as to the treasury balances on deposit with it, was guilty of such obstruction as is contemplated by this section, and an action against the bank by the treasurer’s surety, which had settled for the shortages, was not barred by the statute of limitations. Jones v. United States Fid. & Guar. Co., 165 Va. 349 , 182 S.E. 560 , 1935 Va. LEXIS 304 (1935).

    No evidence of fraudulent concealment. —

    Where the plaintiffs and defendant have similar educational and occupational backgrounds, all parties read the entire deed prior to its execution, the plaintiffs appeared to understand the transaction, there was evidence to the effect that the plaintiffs and the defendant definitely indicated a desire to execute a deed of bargain and sale rather than a deed of trust, and plaintiffs have not established any act by defendant or anyone else, prior or subsequent to execution, which would have prevented the plaintiffs from discovering the true nature of the deed, the facts do not evidence fraudulent concealment. Burton v. Terrell, 368 F. Supp. 553, 1973 U.S. Dist. LEXIS 11016 (W.D. Va. 1973).

    Misrepresentations made to obtain money due under contract. —

    Where plaintiff’s pleadings charged merely that defendant made misrepresentations to obtain money due under a contract, it did not show a case for tolling the statute on the ground of fraudulent concealment of a cause of action for damages from an explosion due to defective work done under contract. Richmond Redevelopment & Hous. Auth. v. Laburnum Constr. Corp., 195 Va. 827 , 80 S.E.2d 574, 1954 Va. LEXIS 162 (1954).

    Removal and concealment of property. —

    Removal of property to a distant county, thus keeping the owners in ignorance of where it was, was an obstruction to the assertion of their rights by action, precluding the defendant from pleading the statute of limitations. Rankin v. Bradford, 28 Va. (1 Leigh) 163, 1829 Va. LEXIS 16 (1829).

    Promise to settle is not obstruction of plaintiff’s right. —

    A promise to settle and pay the balance found due on the settlement will not stop the running of the statute of limitations during the time the settlement is delayed. It is at most only a promise to pay an unascertained balance, and such a promise is not an obstruction of the plaintiff’s right within the meaning of this section, nor does the mere failure to comply with such a promise amount to a fraud on the plaintiff, even if fraud could be relied on in a court of law to repel the bar of the statute of limitations. Liskey v. Paul, 100 Va. 764 , 42 S.E. 875 , 1902 Va. LEXIS 84 (1902).

    Agreement not to sue suspends running of statute. —

    A mutual understanding and agreement between a debtor and creditor, that suit shall not be brought upon an account until the debtor shall have gone to Europe, and returned, is a good bar to the act of limitations during his absence from this country, and may be given in evidence to prevent the court’s expunging from an account items appearing to have been due five years before his death. Holladay v. Littlepage, 16 Va. (2 Munf) 316, 1811 Va. LEXIS 62 (1811).

    E.Dismissal, Abatement or Nonsuit.

    Liberal construction. —

    Statutes quite similar to subsection E have their origin in the Act of 1623 (21 James I, c. 16, § 4). Such statutes are highly remedial and should be liberally construed in furtherance of their purposes, and are not to be frittered away by any narrow construction. Woodson v. Commonwealth Util., Inc., 209 Va. 72 , 161 S.E.2d 669, 1968 Va. LEXIS 197 (1968).

    Purpose. —

    An analysis of subsection E shows that its purpose is to negate the harsh results flowing from the statute of limitations in certain specific instances. Woodson v. Commonwealth Util., Inc., 209 Va. 72 , 161 S.E.2d 669, 1968 Va. LEXIS 197 (1968).

    The basic purpose reflected in the tolling rule is to save the right of action for plaintiffs who, without fault, have been unable to obtain an adjudication on the merits. Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    As a general rule, if the statute of limitations has once begun to run no subsequent event will interrupt it. Parsons v. M'Cracken, 36 Va. (9 Leigh) 495, 1838 Va. LEXIS 38 (1838); Caperton v. Gregory, 52 Va. (11 Gratt.) 505, 1854 Va. LEXIS 39 (1854).

    In only four instances is there a suspension of the statute of limitations by reason of the pendency of a former suit brought in due time. These are: (1) where the suit abates “by the return of no inhabitant,” — that is, where the writ is not served for that reason; (2) where the suit abates by reason of the “death or marriage” of a party; (3) where, after the plaintiff has obtained a judgment or decree in his favor, it is “arrested or reversed upon a ground which does not preclude a new action or suit for the same cause”; (4) where “there be occasion to bring a new action or suit by reason of the loss or destruction of any of the papers or records in a former suit or action which was in due time.” Jones v. Morris Plan Bank, 170 Va. 88 , 195 S.E. 525 , 1938 Va. LEXIS 166 (1938); Woodson v. Commonwealth Util., Inc., 209 Va. 72 , 161 S.E.2d 669, 1968 Va. LEXIS 197 (1968); Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    Ignorance of rights does not suspend statute. —

    Mere ignorance on the part of a creditor is not sufficient to suspend the operation of the statute of limitations. Foster v. Rison, 58 Va. (17 Gratt.) 187, 58 Va. (17 Gratt.) 321, 1867 Va. LEXIS 3 (1867); Bickle v. Chrisman, 76 Va. 678 , 1882 Va. LEXIS 68 (1882); Matthews & Co. v. Progress Distilling Co., 108 Va. 777 , 62 S.E. 924 , 1908 Va. LEXIS 96 (1908).

    Void confessed judgment within subdivision E 2. —

    A judgment confessed by the president of defendant corporation in favor of a trustee in bankruptcy and later declared void and set aside because of the president’s lack of authority is clearly within the letter of the saving provision of this section, which provides that where a plaintiff has obtained a judgment in an action commenced in due time and it is “arrested or reversed upon a ground which does not preclude a new action . . . for the same cause . . ., the same may be brought within one year after such . . . arrest or reversal of judgment . . . .” Hence the statute of limitations does not preclude plaintiff’s right to proceed with his motion for judgment in the present case. Woodson v. Commonwealth Util., Inc., 209 Va. 72 , 161 S.E.2d 669, 1968 Va. LEXIS 197 (1968).

    Statute is not suspended where suit commenced in wrong forum. —

    Plaintiff argued that the general purpose of subsection E was to save a bona fide litigant from the bar of the statute of limitations where he had brought his action within the time prescribed by law, and such suit failed or was dismissed otherwise than upon the merits, and that such a saving clause was by implication written into the statute. This section in an earlier code contained such a saving clause but it was eliminated on the recommendation of the revisers of the Code of 1919. It was held that the General Assembly had expressly determined to eliminate the saving clause in favor of litigant, such as plaintiff, who had proceeded in the wrong forum, and this was a complete answer to the argument that the saving clause was by implication written into the law. Jones v. Morris Plan Bank, 170 Va. 88 , 195 S.E. 525 , 1938 Va. LEXIS 166 (1938).

    When the two-year period of limitation had run, there was no basis for granting relief to a plaintiff whose prior suit was brought in the wrong forum or was dismissed otherwise than upon the merits. Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    Action dismissed for void process. —

    It is no answer to the bar set up by the plea of the act of limitations, that the plaintiff sued out a writ for the same cause of action within the time prescribed by the act, which writ was executed and returned, and went off the docket for want of formality. Callis v. Waddy, 16 Va. (2 Munf) 511, 1811 Va. LEXIS 101 (1811).

    Agreement of parties deferring liability of debtor. —

    A covenant was entered into between the maker and the payee of a note, that the note should be held by the maker until his liability as bail for the payee should cease, and that he then should deliver it. The statute did not run upon the note from the time the covenant was executed until the liability of the maker as bail ceased. Bowles v. Elmore, 48 Va. (7 Gratt.) 385, 1851 Va. LEXIS 20 (1851).

    Entry of order in creditors’ suit. —

    From the time of the entry of an order of reference in a creditors’ suit, the statute of limitations will cease to run against all lien creditors who assert their demands in the suit. Harvey v. Steptoe, 58 Va. (17 Gratt.) 289, 1867 Va. LEXIS 8 (1867); Bank of Old Dominion v. Allen, 76 Va. 200 , 1882 Va. LEXIS 19 (1882); Norvell v. Little, 79 Va. 141 , 1884 Va. LEXIS 71 (1884); Houck v. Dunham, 92 Va. 211 , 23 S.E. 238 , 1895 Va. LEXIS 106 (1895); Craufurd v. Smith, 93 Va. 623 , 23 S.E. 235 , 1895 Va. LEXIS 137 (1895); Callaway v. Saunders, 99 Va. 350 , 38 S.E. 182 , 1901 Va. LEXIS 49 (1901); Gunnell v. Dixon, 101 Va. 174 , 43 S.E. 340 , 1903 Va. LEXIS 16 (1903); Robinett v. Mitchell, 101 Va. 762 , 45 S.E. 287 , 1903 Va. LEXIS 84 (1903).

    Running of statute not tolled by false representations of party. —

    An agreement by defendant, purporting to act as president of a nonexistent corporation, to erect a gasoline station on property which he did not own and lease it for ten years beginning on a certain date was breached when the defendant failed to do so by such date. And the Virginia five-year statute of limitations began to run from such time. The running of the statute was not tolled by the fact that defendant falsely represented that the corporation was a Virginia corporation and that it owned the property in question. Galumbeck v. Suburban Park Stores Corp., 214 F.2d 660, 1954 U.S. App. LEXIS 2750 (4th Cir. 1954).

    Tolling effect of prior suit in another federal court. —

    Since Virginia’s tolling statute and state decisions construing it have been so largely influenced by the nature and the structure of Virginia’s system of trial courts, and since the question in the instant case arises out of the federal court system and reasonable answers are dependent upon the nature and the structure of that system and its effective functioning, the tolling effect of a prior suit in another federal court is a matter of federal, not state, law. Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    Though there was no transfer of the action in the Western District of Kentucky and the question of its transferability was not raised, the commencement of this action in the Western District of Virginia during the pendency of the Kentucky action achieved the same practical result. A determination of the tolling effect of the commencement and prosecution of the federal action in the Western District of Kentucky ought to be had under the same body of law regardless of the procedural means by which prosecution of the substantive cause of action is discontinued in the district court sitting in Kentucky and continued in a district court sitting in Virginia. Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    Where the purposes of the statute of limitations have been satisfied, the institutional basis of Virginia’s tolling rule becomes critical to a consideration of the applicability of that rule to an action in a federal court. Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    Where an action abates by the death of defendant, the statute of limitations is suspended for only one year, in which time plaintiff may commence a new action. Brown v. Putney, 1 Va. (1 Wash.) 302, 1 Wash. 302, 1794 Va. LEXIS 27 (1794).

    Subdivision E 2 does not affect time for appeals. —

    The time for taking the appeal from orders of clerks relating to probate of wills or administration of estates, prescribed by § 64.1-78 [now see § 64.2-445 ], is not extended by the provisions of this section giving an extension in certain cases “if there be occasion to bring a new suit.” Tyson v. Scott, 116 Va. 243 , 81 S.E. 57 , 1914 Va. LEXIS 27 (1914).

    Suspended year does not run from the judgment of the appellate court, but from that of the lower court, excluding from the computation the time during which the action was pending in the appellate court. Bradley Salt Co. v. Norfolk Importing & Exporting Co., 101 F. 681, 1900 U.S. App. LEXIS 4452 (4th Cir. 1900).

    F.Effect of Devise for Payment.

    Section applies whether or not debt barred at testator’s death. —

    A devise of real estate for the payment of debts will not affect the operation of the statute of limitation upon the debts, whether they are barred at the testator’s death or not, unless the contrary intention on his part plainly appears. Johnston v. Wilson, 70 Va. (29 Gratt.) 379, 1877 Va. LEXIS 29 (1877).

    Devise is not evidence of intent. —

    Subsection F is a legislative declaration that all the provisions as to the limitation of actions shall apply in favor of a testator’s debts, although there is a devise of real estate for their payment, unless it plainly appears that the testator otherwise intended. The devise is not of itself sufficient evidence of the intent. It must appear from some provision or phrase independent of the devise, which indicates the purpose of the testator. Johnston v. Wilson, 70 Va. (29 Gratt.) 379, 1877 Va. LEXIS 29 (1877).

    G.Effect of New Promise in Writing.

    New promise renders promisor liable to action. —

    If a person makes a promise that he will pay a debt he justly owes, for the recovery of which all legal and equitable remedies are barred by the statute of limitations, the promise renders him liable to an action. Robinson v. Bass, 100 Va. 190 , 40 S.E. 660 , 1902 Va. LEXIS 15 (1902).

    Promise must be in writing. —

    This section must be construed in the light of the law as it existed prior to the enactment of any similar statute, and in the light of the history of the section and the statutes in which it had its origin. When so construed, it provides by necessary implication that an oral acknowledgment or new promise to pay a debt, shall not be sufficient to take the debt out of the statutes of limitations and support a recovery thereof after an action on the original promise has become barred; and that any acknowledgment or new promise, to have that effect, must be made by writing, signed by the person to be charged thereby or his agent. Gwinn v. Farrier, 159 Va. 183 , 165 S.E. 647 , 1932 Va. LEXIS 182 (1932) (see Robinson v. Bass, 100 Va. 190 , 40 S.E. 660 (1902); Kesterson v. Hill, 101 Va. 739 , 45 S.E. 288 (1903); Tucker v. Owen, 94 F.2d 49 (4th Cir. 1938)).

    And it must be determinate and unequivocal. —

    A new promise to remove the bar of the statute of limitations must be determinate and unequivocal. Coles v. Martin, 99 Va. 223 , 37 S.E. 907 , 1901 Va. LEXIS 32 (1901) (see also Aylett v. Robinson, 36 Va. (9 Leigh) 45 (1837); Bell v. Crawford, 49 Va. (8 Gratt.) 110 (1851)).

    But the new promise may be either express or implied. Rowe v. Marchant, 86 Va. 177 , 9 S.E. 995 , 1889 Va. LEXIS 24 (1889).

    An acknowledgment in writing from which a promise of payment may be implied is sufficient. Dinguid v. Schoolfield, 73 Va. (32 Gratt.) 803, 1880 Va. LEXIS 100 (1880); Rowe v. Marchant, 86 Va. 177 , 9 S.E. 995 , 1889 Va. LEXIS 24 (1889).

    If there is an unequivocal admission that the debt is still due and unpaid, unaccompanied by any expression, declaration or qualification indicative of an intention not to pay, the state of facts out of which the law implies a promise is then present, and the party is bound by it. Nesbit v. Galleher, 174 Va. 143 , 5 S.E.2d 501, 1939 Va. LEXIS 148 (1939).

    The acknowledgment need not be in any particular form or contain any particular substance. But it ought to be a direct and unqualified admission of a present subsisting debt, from which a promise to pay would naturally and irresistibly be implied. Nesbit v. Galleher, 174 Va. 143 , 5 S.E.2d 501, 1939 Va. LEXIS 148 (1939).

    But it must be clear and unqualified. —

    An acknowledgment from which a promise may be implied must be unqualified. Aylett v. Robinson, 36 Va. (9 Leigh) 45, 1837 Va. LEXIS 60 (1837); Bell v. Crawford, 49 Va. (8 Gratt.) 110, 1851 Va. LEXIS 49 (1851); Switzer v. Noffsinger, 82 Va. 518 , 1886 Va. LEXIS 66 (1886).

    To imply a promise of payment from a subsequent acknowledgment, the acknowledgment must be an unqualified admission of a subsisting debt which the party is liable for and willing to pay. Coles v. Martin, 99 Va. 223 , 37 S.E. 907 , 1901 Va. LEXIS 32 (1901); Quackenbush v. Isley, 154 Va. 407 , 153 S.E. 818 , 1930 Va. LEXIS 223 (1930).

    It must not consist of equivocal, vague and indeterminate expressions, but ought to contain an unqualified and direct admission of a previous, subsisting debt, which the party is liable for and willing to pay. Nesbit v. Galleher, 174 Va. 143 , 5 S.E.2d 501, 1939 Va. LEXIS 148 (1939).

    And not a mere attempt at settlement. —

    An acknowledgment in writing, to operate as a new promise, must be a clear and definite acknowledgment of a precise sum, plainly importing willingness and liability to pay, and not in any wise conditional, nor by way of promise or attempt at settlement. Aylett v. Robinson, 36 Va. (9 Leigh) 45, 1837 Va. LEXIS 60 (1837); Bell v. Crawford, 49 Va. (8 Gratt.) 110, 1851 Va. LEXIS 49 (1851); Coles v. Martin, 99 Va. 223 , 37 S.E. 907 , 1901 Va. LEXIS 32 (1901); Liskey v. Paul, 100 Va. 764 , 42 S.E. 875 , 1902 Va. LEXIS 84 (1902); Kesterson v. Hill, 101 Va. 736 , 101 Va. 739 , 45 S.E. 288 , 1903 Va. LEXIS 81 (1903).

    Form of new promise does not fix limitation on original contract. —

    The provision in this section that suit may be brought “within such number of years after such promise, as it might be maintained if such promise were the original cause of action,” means “if the date of such promise were the date of the accrual of the original cause of action,” and is not intended to mean that the form of the new promise fixes the limitation of an action on the original contract. Ingram v. Harris, 174 Va. 1 , 5 S.E.2d 624, 1939 Va. LEXIS 136 (1939).

    Promise to pay one debt does not affect another not referred to. —

    A letter containing a promise to pay an account asked for, and stating that if the writer could only draw in her means, she could pay every cent she owed, is not sufficient to take an old account not referred to out of the operation of the statute of limitations. Coles v. Martin, 99 Va. 223 , 37 S.E. 907 , 1901 Va. LEXIS 32 (1901).

    But promise to pay ascertainable amount is sufficient. —

    Where there is a new promise to pay not specifying any amount, but which can be made certain as to the amount, it is sufficient. Coles v. Martin, 99 Va. 223 , 37 S.E. 907 , 1901 Va. LEXIS 32 (1901).

    New promise must be made by debtor. —

    A new promise, to repel the plea of the statute of limitations, must be made by the person against whom the right to maintain an action has accrued. Bell v. Crawford, 49 Va. (8 Gratt.) 110, 1851 Va. LEXIS 49 (1851); Switzer v. Noffsinger, 82 Va. 518 , 1886 Va. LEXIS 66 (1886).

    To creditor. —

    Generally, a promise sufficient to toll statute of limitations should be made directly to the creditor or some person acting for him, and declarations or admissions to strangers are insufficient. Layman v. Layman, 171 Va. 317 , 198 S.E. 923 , 1938 Va. LEXIS 282 (1938).

    A declaration or admission to a third person is deemed insufficient to avoid the bar of the statute of limitations, not so much because the acknowledgment is made to a stranger as because there is no sufficient evidence of an intention to contract. Layman v. Layman, 171 Va. 317 , 198 S.E. 923 , 1938 Va. LEXIS 282 (1938).

    A promise to pay a debt, made to a person not legally or equitably interested in the same, and who does not pretend to have had any authority from the creditor to call upon the debtor in relation to the debt, will not avoid the bar of the statute of limitations. Layman v. Layman, 171 Va. 317 , 198 S.E. 923 , 1938 Va. LEXIS 282 (1938).

    Unless intended to be communicated to creditor. —

    Where the acknowledgment of a debt is to a stranger, and it appears that it was the intention of the debtor that the acknowledgment made to him should be communicated to and should influence the creditor, it is just as effectual to defeat the statute of limitations as if it had been made directly to the creditor or his authorized agent. Layman v. Layman, 171 Va. 317 , 198 S.E. 923 , 1938 Va. LEXIS 282 (1938).

    Performance of conditions must be shown. —

    If the acknowledgment or new promise be coupled with any terms or conditions, they must be proven to have been performed, or else no recovery can be had. Farmers Bank v. Clarke, 31 Va. (4 Leigh) 603, 1833 Va. LEXIS 55 (1833).

    A promise “to settle” is ineffectual. —

    It requires a promise to pay, or such an acknowledgment in writing that a promise to pay may be implied from it, to take a debt out of the statute of limitations and it is well settled that a promise merely “to settle” is not sufficient. Aylett v. Robinson, 36 Va. (9 Leigh) 45, 1837 Va. LEXIS 60 (1837); Bell v. Crawford, 49 Va. (8 Gratt.) 110, 1851 Va. LEXIS 49 (1851); Gover v. Chamberlain, 83 Va. 286 , 5 S.E. 174 , 1887 Va. LEXIS 65 (1887); Liskey v. Paul, 100 Va. 764 , 42 S.E. 875 , 1902 Va. LEXIS 84 (1902).

    On a plea of non assumpsit within five years, it was proved that within five years the defendant acknowledged the items in the plaintiff’s account to be just, but said that he had some offsets; and that at a subsequent time, the defendant promised the plaintiff that he would settle all their differences and accounts fairly, and would not avail himself of the act of limitations. It was held that this proof was not sufficient to justify the jury in finding for the plaintiff. Sutton v. Burruss, 36 Va. (9 Leigh) 381, 1838 Va. LEXIS 23 (1838).

    An account stated, which is not supported by a writing signed by the debtor or his agent, will not prevent the running of the statute of limitations against previously existing items of indebtedness included therein. Magarity v. Shipman, 93 Va. 64 , 24 S.E. 466 , 1896 Va. LEXIS 51 (1896) (see Tazewell’s Ex’r v. Whittle’s Adm’r, 54 Va. (13 Gratt.) 329 (1856); Radford v. Fowlkes, 85 Va. 820 , 8 S.E. 817 (1889)).

    Promise by insolvent is not fraudulent as to other creditors. —

    An insolvent debtor may make a new promise to pay one of his creditors a debt barred by the act of limitations, and may give a specific lien on his property to secure the same, and in the absence of fraud, other creditors cannot object. The new promise is not per se such a fraudulent act as will entitle other creditors to set up the statute of limitations against the debt or the security given for it. The only condition imposed on the creditor by this section is that the new promise shall be in writing and signed by the debtor or his agent. Robinson v. Bass, 100 Va. 190 , 40 S.E. 660 , 1902 Va. LEXIS 15 (1902).

    A clear acknowledgment of a debt coupled with a plea of poverty as a reason for delay in payment, is sufficient to repel the statute of limitations. Nesbit v. Galleher, 174 Va. 143 , 5 S.E.2d 501, 1939 Va. LEXIS 148 (1939).

    A letter was held to constitute an acknowledgment sufficient to repel the bar of the statute of limitations under this section. Nesbit v. Galleher, 174 Va. 143 , 5 S.E.2d 501, 1939 Va. LEXIS 148 (1939).

    A letter written by a father to an officer of the bank named as executor in his will constituted an acknowledgment of a debt of the father to his daughter, and was not made to a stranger, but to one charged with the duty to act for his estate and for his daughter, and the acknowledgment was intended to influence her in accepting a settlement of the debt. It was not necessary that the acknowledgment be made directly to her in order to start a new period of limitations, since the debtor, her father, derived an advantage from it. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20, 1957 Va. LEXIS 209 (1957).

    Letter and notations on checks given to pay interest. —

    There was, in a letter written by a father to an officer of the bank which was named as executor under his will, and in his notations on checks given to pay interest on a loan made to the father by his daughter, ample “acknowledgment from which a promise of payment might be implied,” which promise under this section started a new period of limitations. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20, 1957 Va. LEXIS 209 (1957).

    Financial statement and checks of close corporation. —

    Where a close corporation as debtor is involved, a financial statement, listing the stale debt, signed by the corporation’s accountant who is also one of its directors, and corporate checks, issued in payment of interest on the debt, are sufficient acknowledgment in writing of the indebtedness from which may be implied a promise to pay the obligation, and upon which to fix a new period of limitation. Tyler Gilman Corp. v. Williams, 216 Va. 548 , 221 S.E.2d 129, 1976 Va. LEXIS 165 (1976).

    Deposition in suit to which creditor was not party may suffice. —

    A deposition of the maker of a note, given and signed by him, in a case in which the obligee was not a party, for the purpose of obtaining a credit for the note as to be paid by the maker, and for which he was allowed such a credit in that case, is such an acknowledgment of the debt as will defeat the plea of the statute of limitations in an action on the note by the obligee. Dinguid v. Schoolfield, 73 Va. (32 Gratt.) 803, 1880 Va. LEXIS 100 (1880).

    If a promise may be inferred therefrom. —

    A deposition declaring that a statement contained in an inventory of a decedent’s estate is not a correct statement of what is owing cannot be considered as an unqualified and direct acknowledgment of a subsisting indebtedness from which a promise to pay could be inferred. Walter v. Whitacre, 113 Va. 150 , 73 S.E. 984 , 1912 Va. LEXIS 20 (1912).

    Implied promise to pay bonds destroyed by obligor. —

    R. took from plaintiff, while he was sick, certain bonds representing debts due by R., and destroyed them, but, on plaintiff’s recovery, gave him a written acknowledgment of their destruction. The bonds were at that time barred by the statute of limitations, but R. wrote under a written statement of the date and amount of the bonds a statement that “the above entries of the amounts of money due by me” to plaintiff were correct, and that the bonds “were never paid by me.” This was held to be a sufficient acknowledgment of the debt to take it from under the statute. Rowe v. Marchant, 86 Va. 177 , 9 S.E. 995 , 1889 Va. LEXIS 24 (1889).

    Part payment does not remove the bar of the statute. —

    This section provides, by necessary implication, that a part payment of a debt, unless evidenced by a writing that in itself amounts to an acknowledgment or a new promise to pay, shall not be sufficient to take the debt out of the statutes of limitation and support a recovery thereof after an action on the original promise has become barred. Gwinn v. Farrier, 159 Va. 183 , 165 S.E. 647 , 1932 Va. LEXIS 182 (1932).

    Part payment of a note after it had become barred was not sufficient to remove the bar of the statute. Gover v. Chamberlain, 83 Va. 286 , 5 S.E. 174 , 1887 Va. LEXIS 65 (1887).

    Nor does payment of interest. —

    A part payment of the principal or payment of interest does not, at least in Virginia, remove the bar of the statute. Quackenbush v. Isley, 154 Va. 407 , 153 S.E. 818 , 1930 Va. LEXIS 223 (1930); Layman v. Layman, 171 Va. 317 , 198 S.E. 923 , 1938 Va. LEXIS 282 (1938).

    Or stop the running of time. —

    The partial payment of debt already due does not affect the running of the statute or operate to create a new cause of action. W.L. Becker & Co. v. Norfolk & W. Ry., 125 Va. 558 , 100 S.E. 478 , 1919 Va. LEXIS 45 (1919).

    Acknowledgment in bill by attorney insufficient. —

    A bill in chancery filed for the construction of a testator’s will and the administration of his estate under the care of the court, which is signed by counsel only, and which lists a debt due by the complainant to the testator, is not such an acknowledgment by the debtor or his agent as will take the debt out of the bar of the statute of limitations, in the absence of any evidence that the counsel was authorized to make an admission of indebtedness. Walter v. Whitacre, 113 Va. 150 , 73 S.E. 984 , 1912 Va. LEXIS 20 (1912).

    Acknowledgment of title to property insufficient. —

    In an action of detinue, defendant pleaded the statute of limitations and plaintiff replied that within five years defendant acknowledged the article detained to be plaintiff’s property. This was held insufficient, for under this section the operation of the statute can be avoided only by showing a written acknowledgment or promise to pay money. Morris v. Lyon, 84 Va. 331 , 4 S.E. 734 , 1888 Va. LEXIS 84 (1888).

    Province of court and jury. —

    It is the province of the court when the facts are undisputed, to decide what acts or declarations amount to a new promise which will take a case out of the operation of the statute of limitations. But where the evidence was conflicting, the evidence to show the promise must be left to the jury. Fisher v. Duncan, 11 Va. (1 Hen. & M.) 563, 1807 Va. LEXIS 50 (1807).

    Section not applicable to hearings before commissioner of accounts. —

    The provisions of this section were not applicable to hearings before a commissioner of accounts under former §§ 64-161 through 64-163 (see now §§ 64.2-550 to 64.2-552 ). Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20, 1957 Va. LEXIS 209 (1957).

    H.Suspension of Limitations in Creditors’ Suits.

    In order to apply this subsection H, it should be clearly established that the suit is of the character and nature specified and that the debt was presented and dealt with as required. Mitchell v. Cox, 189 Va. 236 , 52 S.E.2d 105, 1949 Va. LEXIS 165 (1949).

    CIRCUIT COURT OPINIONS

    Nonsuit. —

    Nonsuit was a statutory right that allowed a plaintiff to dismiss a pending action for any reason as long as the motion was made prior to a motion to strike the evidence or the case was submitted for decision; statute also required the refiling of any nonsuited action to be in the same court unless the court was without jurisdiction, or not a proper venue, or other good cause was shown. Verdolotti v. Chung, 56 Va. Cir. 358, 2001 Va. Cir. LEXIS 126 (Portsmouth Aug. 17, 2001).

    Statute contained express provisions that related to tolling of statutes of limitation in limited situations; if plaintiff suffered a voluntary nonsuit, the statute of limitations would be tolled by the commencement of the nonsuited action. Verdolotti v. Chung, 56 Va. Cir. 358, 2001 Va. Cir. LEXIS 126 (Portsmouth Aug. 17, 2001).

    Although a client nonsuited a legal malpractice action under § 8.01-380 , the lawyers’ § 8.01-273 A demurrer had to be overruled because § 8.01-229 E 3 tolled the time for filing a second suit; since the client sufficiently pleaded a cause of action for legal negligence in the second suit and the client’s addition of a breach of contract count involved the same parties on the same cause of action, the lawyers’ plea in bar was also overruled. Odeneal v. Thompson, 63 Va. Cir. 71, 2003 Va. Cir. LEXIS 182 (Fairfax County Aug. 6, 2003).

    Although a patient nonsuited a medical malpractice action against two doctors, because the patient properly commenced a new action alleging a breach in the standard of care via a first doctor’s negligent supervision of a second doctor, the new action survived the first doctor’s plea in bar; however, because “negligent supervision” was not actionable in Virginia, the first doctor’s demurrer was granted. Nickson v. Rice, 69 Va. Cir. 516, 2004 Va. Cir. LEXIS 354 (Chesterfield County Aug. 2, 2004).

    Two-year statute of limitations for personal injury actions, § 8.01-243 , barred a passenger’s suit against the personal representative of a deceased driver. The statute was not tolled under subsection E of § 8.01-229 because the second case was instituted before the first case was nonsuited as to the defendant asserting the statute. Zahuranec v. Levine, 83 Va. Cir. 39, 2011 Va. Cir. LEXIS 64 (Fairfax County May 13, 2011).

    Subdivision E 1 of § 8.01-229 begins by stating “except as provided in subdivision 3” and the plain meaning and intent of that language unambiguously dictates that subdivision E 3 of § 8.01-229 supersedes subdivision E 1 of § 8.01-229 in certain instances; the opening words of subdivision E 3 of § 8.01-229 clearly announce a certain instance, if a plaintiff suffers a voluntary nonsuit, and thus the tolling provision of subdivision E 3 of § 8.01-229 controls following a nonsuit. Joyner v. Colonial Heights Operations, L.L.C., 108 Va. Cir. 240, 2021 Va. Cir. LEXIS 140 (Petersburg June 24, 2021).

    Tolling provision does not apply where federal statute has its own limitations period. —

    Employer’s special plea of the statute of limitations was sustained in an employee’s suit for unpaid compensation alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 201 et seq., where the employee’s original suit was voluntarily nonsuited and she re-filed the same claim after six months had expired from the time of the original nonsuit because the FLSA set forth its own two-year limitations period and the state tolling provision under subdivision E 3 of § 8.01-229 did not toll the employee’s claim since the FLSA provided for its own limitations period. Marston v. Weaver, 69 Va. Cir. 301, 2005 Va. Cir. LEXIS 253 (Rockingham County Nov. 17, 2005).

    Virginia Savings Statute does not toll the statute of limitations contained in 46 U.S.C.S. § 30106 because state savings statutes cannot toll the statute of limitations under a federal statute that has a limitations period. John v. Salisbury Towing Corp., 85 Va. Cir. 368, 2012 Va. Cir. LEXIS 180 (Norfolk Sept. 17, 2012).

    Seaman’s maritime negligence claim was time-barred where ample, uniform precedent favored application of the general maritime law to the exclusion of a state tolling statute, and since there was no principled means to distinguish between the application of state tolling statutes in a case against a third party, as opposed to a seaman’s employer, subdivision E 3 of § 8.01-229 did not apply to the federal Uniform Statute of Limitations for Maritime Torts. Wayman v. Perdue Agribusiness, L.L.C., 103 Va. Cir. 347, 2019 Va. Cir. LEXIS 1186 (Chesapeake Nov. 1, 2019).

    Applicable to appeal from decision by Board of Zoning Appeals. —

    There is no conflict between §§ 15.2-2314 and 8.01-229 , as § 15.2-2314 articulates the limitations period for the initial filing of a claim arising from an adverse decision by a board of zoning appeals, whereas § 8.01-229 creates and defines the contours of a tolling of the limitations period upon the exercise of a voluntary nonsuit. Bd. of Supervisors v. Bd. of Zoning Appeals, 71 Va. Cir. 170, 2006 Va. Cir. LEXIS 103 (Fairfax County June 23, 2006), rev'd, 275 Va. 452 , 657 S.E.2d 147, 2008 Va. LEXIS 31 (2008) (see note above).

    Limitations period not tolled where nonsuit was void. —

    Because a patient’s failure to give notice to the doctors and to fully inform the tribunal before entry of a second nonsuit order in accordance with Va. Sup. Ct. R., pt. 6, § II, R. 3:3(c), the second nonsuit was void as it was not suffered as prescribed in § 8.01-380 ; therefore, the tolling provisions of subdivision E 3 of § 8.01-229 were not triggered, and the third action was time barred. Humphreys v. Carey, 71 Va. Cir. 67, 2006 Va. Cir. LEXIS 79 (Lynchburg May 11, 2006).

    Medical malpractice case was time barred based on the invalidity of a second nonsuit order; because the second nonsuit order was void ab initio as not compliant with the governing statute, it could no more toll the statute of limitations than it could effectively nonsuit a 2012 case. As such, there was no 6-month extension where an order was not made in accordance with the governing statute. Branch v. Augusta Health Care, Inc., 92 Va. Cir. 126, 2015 Va. Cir. LEXIS 206 (Augusta County Aug. 21, 2015).

    Subdivision E 3 not applicable. —

    Where the trial court was acting as a reviewing court, § 8.01-380 governing nonsuits did not apply and, thus, the subdivision E 3 tolling time for nonsuited cases also did not apply. As a result, dismissal of the appeal filed by the limited liability companies in their case refiled after they took a voluntary nonsuit from the agency’s denial of their applications regarding licensing, was warranted. Joy House Senior Homes, L.C. v. Jones, 75 Va. Cir. 140, 2008 Va. Cir. LEXIS 36 (Fairfax County Mar. 28, 2008).

    Pursuant to subdivision E 3 of § 8.01-229 , a voluntary nonsuit taken in a wrongful death action tolled the applicable two-year statute of limitations with regard to claims raised in the nonsuited action, but did not toll the limitations period with respect to a public nuisance claim because that claim was not raised in the prior action. Allen v. Loudoun County Sanitation Auth., 81 Va. Cir. 496, 2009 Va. Cir. LEXIS 218 (Fauquier County Nov. 2, 2009).

    Patient’s new medical malpractice claims in a recommended action were untimely because the claims were not tolled by statute as the patient’s new claims did not rely on the same evidence as the cause of action asserted by the patient in the prior complaint, which the patient nonsuited. Lawton-Gunter v. Meyer, 88 Va. Cir. 327, 2014 Va. Cir. LEXIS 73 (Roanoke June 12, 2014).

    Subdivision E 3 applied. —

    Decedent’s personal representative was entitled to recommence a personal injury action against a motorist under § 8.01-229 because the decedent’s first and second complaints were voluntarily nonsuited under § 8.01-380 and the personal representative brought the third action within six months of the nonsuit order. Meador v. Cray, 79 Va. Cir. 286, 2009 Va. Cir. LEXIS 85 (Roanoke County Sept. 15, 2009).

    Overruling of the motion in abatement and plea in bar of the statute of limitations filed by the executrix of the decedent’s estate after plaintiff filed a complaint to enforce a promissory note made by the decedent was proper because plaintiff recommenced the action within the limitations period prescribed by subdivision E 3 of § 8.01-229 , and the executrix received service of process within one year of the institution of the action as required under Va. Sup. Ct. R. 3:5. Plaintiff properly identified the executrix in her capacity as estate’s executrix and clearly informed both the court and the opposing party of the claim being made and the proper party against whom such a claim was being sought. Wiebel v. Estate of Johnson, 79 Va. Cir. 509, 2009 Va. Cir. LEXIS 263 (Charlottesville Nov. 16, 2009).

    Tolling provision of subdivision E 3 of § 8.01-229 applied, as plaintiff nonsuited the first case, then filed the current case within six months of the nonsuit order entry date, plus each case contained an established claim that sounded in negligence and thus contained the same cause of action. Joyner v. Colonial Heights Operations, L.L.C., 108 Va. Cir. 240, 2021 Va. Cir. LEXIS 140 (Petersburg June 24, 2021).

    Subdivision E 3 does not apply to time-barred challenges to rezoning decisions. —

    Challenge to the board of supervisor’s rezoning and comprehensive plan amendment relating to land adjacent to a landowner’s property was time-barred under subsection F of § 15.2-2285 because the present challenge to the board’s action was filed more than 30 days after the landowner took a voluntary nonsuit in a prior challenge to the same action by the board. Because the time limit set forth in subsection F of § 15.2-2285 was not statute of limitations or repose, the tolling provision in subdivision E 3 of § 8.01-229 did not apply. Ticonderoga Farms, Inc. v. Loudoun County Bd. of Supervisors, 72 Va. Cir. 365, 2006 Va. Cir. LEXIS 320 (Loudoun County Dec. 21, 2006).

    Limitations not tolled under subdivision E 3 where second action not brought within six months. —

    Other than by order of nonsuit, when a timely filed action abates or is dismissed without a determination on the merits, the period the action is pending is not computed as part of the period within which the action is to be brought. Contrariwise, when an action is terminated by nonsuit, the period the action is pending is computed as part of the period within which the action may be brought, unless the plaintiff renews the action within six months of the date of the order of nonsuit. Ticonderoga Farms, Inc. v. Loudoun County Bd. of Supervisors, 72 Va. Cir. 365, 2006 Va. Cir. LEXIS 320 (Loudoun County Dec. 21, 2006).

    Limitations not tolled under subdivision E 3 where ad damnum clauses were different. —

    When the airline passenger filed her current complaint after suffering a nonsuit she did not “recommence” her “action” as required by subdivision E 3 of § 8.01-229 because the present action with an ad damnum of $500,000.00 was not the same action as the nonsuited action with an ad damnum of $325,000.00. As such, the tolling provisions of subdivision E 3 did not apply and her claims were barred by subsection A of § 8.01-243 . Spear v. Metro. Wash. Airports Auth., 78 Va. Cir. 456, 2009 Va. Cir. LEXIS 184 (Loudoun County Aug. 12, 2009).

    Statute of limitations tolled by voluntary dismissal and refiling. —

    Common, ordinary meaning of the word “recommence,” as employed in subdivision E 3 of § 8.01-229 , narrows the breadth of meaning of the words “commenced” and “commencement,” indicating that the legislature intended that the application of the provision in subdivision B 2 of § 8.01-229 be limited to the pleading of a new substantive cause of action. Scott v. Gardner, 73 Va. Cir. 417, 2007 Va. Cir. LEXIS 224 (Danville July 11, 2007).

    Subdivision B 2 of § 8.01-229 did not operate to extend a statute of limitations in a driver’s suit to recover for damages sustained in a collision because the tolling provision of subdivision E 3 of § 8.01-229 , which allowed party who suffered nonsuit to recommence his action within a certain period, was limited to pleading a new substantive cause of action, which had not been done. Scott v. Gardner, 73 Va. Cir. 417, 2007 Va. Cir. LEXIS 224 (Danville July 11, 2007).

    Daughter’s plea in bar was overruled in a mother’s action alleging fraud and breach of fiduciary duty because the mother’s case was not barred by the statute of limitations; under subdivision E 3 of § 8.01-229 , the mother had six months from the date of the order of nonsuit to recommence her action, and the case was filed twelve days after the mother’s motion for nonsuit was granted. Carter v. Brooks, 77 Va. Cir. 363, 2009 Va. Cir. LEXIS 112 (Greensville County Jan. 20, 2009).

    Tolling by incapacity. —

    As the original two-year period of limitations had expired by the date of the nonsuit, plaintiff had six months from that date to recommence her case, but she was adjudicated incapacitated, and her conservator filed the complaint two days after the expiration of the six-month period to refile; as the statute permitted tolling if plaintiff became incapacitated at some point before the expiration of the statute of limitations, and the onset of plaintiff’s incapacitation was not clear, defendants’ plea in bar was overruled and a hearing was to be allowed. Byington v. Sentara Life Care Corp., 94 Va. Cir. 70, 2016 Va. Cir. LEXIS 117 (Norfolk Aug. 1, 2016).

    Tolling by bankruptcy proceedings. —

    Holder in due course of deed of trust notes was not time-barred from foreclosing when the debtor filed bankruptcy petitions, which were dismissed, because, although the notes stated a maturity date, the lender and the borrower elected not to fix a maturity date in the deed of trust. Accordingly, the action was timely filed as the applicable statute of limitations was 20 years from the date of the deed of trust and the filings of the bankruptcy petitions by the borrower tolled the statute of limitations when bankruptcy proceedings were pending. G&G, LLC v. Thorburn Ltd. P'ship, 103 Va. Cir. 312, 2019 Va. Cir. LEXIS 621 (Fairfax County Oct. 30, 2019).

    Calculation of time. —

    Under subdivision E 1 of this section, the running of the limitations period only recommenced when the action in the district court was no longer pending. Anderson v. Dillow, 53 Va. Cir. 255, 2000 Va. Cir. LEXIS 451 (Norfolk Sept. 13, 2000), aff'd, 262 Va. 797 , 553 S.E.2d 526, 2001 Va. LEXIS 121 (2001).

    Calculation of time where filing obstructed. —

    Demurrer was overruled as to an insured’s claim for breach of an unwritten contract even though subdivision 4 of § 8.01-246 provided a three-year statute of limitations, as under subsection D of § 8.01-229 , the time during which the filing of an action was obstructed was not counted as part of the period within which the action had to be brought. Nowland v. Tri Core, Inc., 60 Va. Cir. 469, 2000 Va. Cir. LEXIS 643 (Richmond Apr. 28, 2000).

    Demurrer was overruled as to an insured’s claim for breach of fiduciary duty based on the two-year statute of limitations as the insured alleged facts which, if proven, showed active concealment or fraud preventing any claim from being asserted and tolled the statute of limitations under subsection D of § 8.01-229 . Nowland v. Tri Core, Inc., 60 Va. Cir. 469, 2000 Va. Cir. LEXIS 643 (Richmond Apr. 28, 2000).

    Misrepresentation made prior to the tortious act. —

    Statute of limitations was tolled in a conversion action brought against a partner by representatives of the estates of former partners because the representatives established that the partner engaged in an affirmative act of misrepresentation as to the value of stock that was intended to conceal the planned conversion of the stock from each of its rightful owners and that the representatives did not act within the statute of limitations due to that misrepresentation. McDannald v. Mackey, 104 Va. Cir. 448, 2018 Va. Cir. LEXIS 3277 (Roanoke Jan. 3, 2018).

    Computation of filing date of action when limitations period tolled by filing of prior related lawsuit. —

    Although a motor company’s action for tortious interference with a business advantage was not filed until October 20, 2006, the two-year statute of limitations set forth in subsection A of § 8.01-243 was tolled by the filing of a prior related lawsuit on August 18, 2005. Thus, the court accepted August 18, 2005, as the date of filing of the motor company’s action pursuant to subdivision E 1 of § 8.01-229 . Jennings Motor Co., L.L.C. v. Jennings, 73 Va. Cir. 136, 2007 Va. Cir. LEXIS 31 (Fairfax County Mar. 23, 2007).

    Suspension of limitations based on affirmative misrepresentation of identity. —

    There was nothing that rose to the level of an affirmative misrepresentation of the identity of the nurse in charge of the patient at the time of the alleged negligence; even if the nurse purposely did not identify herself in the file (a theory made less probable by the fact that she made a late entry identifying herself in the file several hours later), that was at best a concealment of her identity, which was not sufficient to toll the statute of limitations. Huff v. Commonwealth, 75 Va. Cir. 244, 2008 Va. Cir. LEXIS 247 (Charlottesville June 2, 2008).

    Nurse could not have intended for the administratrix to rely on the absence of a notation in the chart, because the chart was not being maintained for the administratrix’s purposes, but rather for the purposes of other medical personnel in the hospital; thus, the nurse could not have intended for the administratrix to rely on the absence of any information linking the nurse to the patient because the nurse was not keeping records for the administratrix’s information. Therefore, equitable estoppel did not apply. Huff v. Commonwealth, 75 Va. Cir. 244, 2008 Va. Cir. LEXIS 247 (Charlottesville June 2, 2008).

    Suspension of limitations during criminal proceedings. —

    When an inmate sued a retailer for assault and battery, false imprisonment and defamation for causing his arrest, he could not invoke subsection K of § 8.01-229 , under which the running of a period of limitations regarding his tort claims would be suspended during his criminal proceedings related to the same facts, because the statute became effective after the limitations period applicable to his claims expired, and it did not operate retroactively to revive his time-barred claims. McEvily v. K-Mart Corp., 73 Va. Cir. 51, 2007 Va. Cir. LEXIS 48 (Fairfax County Feb. 28, 2007).

    Obstruction of filing by defendant. —

    When an inmate sued a retailer for assault and battery, false imprisonment and defamation for causing his arrest, he did not show the retailer took an affirmative act to obstruct his right to sue, under subsection D of § 8.01-229 because his incarceration subsequent to his arrest was not the result of an affirmative act taken by the retailer to preclude, or interfere with, his right to file a motion for judgment, so the statute of limitations was not tolled under this provision. McEvily v. K-Mart Corp., 73 Va. Cir. 51, 2007 Va. Cir. LEXIS 48 (Fairfax County Feb. 28, 2007).

    Plea in bar to claim to plaintiffs’ breach of fiduciary duty claim was sustained as the two-year statute of limitations was not tolled under subsection D of § 8.01-229 because defendants’ acts did not obstruct plaintiffs from filing their claim earlier as defendants’ acts consisted of mere silence rather than active concealment. Colgate v. Disthene Group, Inc., 86 Va. Cir. 218, 2013 Va. Cir. LEXIS 9 (Buckingham County Feb. 4, 2013).

    Defendant’s plea in bar was sustained because, although defendant gave plaintiff a false name, there was other compelling evidence that the false name was not intended to obstruct the filing of an action as defendant gave the true name of his insurance company, the true name of the policyholder, and his true familial relationship to the policyholder; he provided plaintiff accurate and truthful information that would lead directly back to himself; and the insurer repeatedly sought to engage with plaintiff. Sparks v. Lucas, 98 Va. Cir. 262, 2018 Va. Cir. LEXIS 43 (Fairfax County Mar. 23, 2018).

    Obstruction of filing. —

    Where an employer conceded that a former employee took no action to obstruct the filing of the action, but it claimed that other former employees did, it could not hold the non-obstructing employee vicariously liable for the acts of the obstructing employee. Norfolk Cmty. Servs. Bd. v. Berardi, 84 Va. Cir. 310, 2012 Va. Cir. LEXIS 25 (Norfolk Feb. 15, 2012).

    Retroactive application of amendment. —

    Plaintiff’s suit was not time-barred although when defendant one was terminated and plaintiff uncovered defendants’ fraud, the claim was governed by § 8.01-243 and the suit was not filed within the two-year limitations period for fraud; subsection K of § 8.01-229 was applied retroactively and the suit was filed within one year of defendant one’s sentencing in a criminal case. Hudson Props. v. Gibbs, 70 Va. Cir. 17, 2005 Va. Cir. LEXIS 297 (Greensville County June 27, 2005).

    Incapacity. —

    When an inmate sued a retailer for assault and battery, false imprisonment and defamation for causing his arrest, he did not show he was incapacitated under § 8.01-229 , because he was allegedly not allowed to access the law library in the jail in which he was incarcerated, because, while a person who was convicted of a felony was a person under a “disability” while incarcerated, his incarceration did not toll the statute of limitations because it did not render him “incapacitated” as that term was used in subdivision A 1 of § 8.01-229 , so the inmate did not plead facts suggesting he was incapacitated while incarcerated, nor did he show a court of competent jurisdiction found him to be incapacitated during that time. McEvily v. K-Mart Corp., 73 Va. Cir. 51, 2007 Va. Cir. LEXIS 48 (Fairfax County Feb. 28, 2007).

    Based on a plain reading of subdivision A 2 b of § 8.01-229 and § 64.2-2000 , the § 64.2-2000 definition, which refers to an incapacitation finding by a court, does not preclude one from being incapacitated for purposes of § 8.01-229 simply because one has not yet been adjudicated incapacitated; adjudication is a predicate for legal recognition of the incapacity, including for appointment of a guardian or conservator, and the focus of subdivision A 2 b of § 8.01-229 is on when one becomes incapacitated. Byington v. Sentara Life Care Corp., 94 Va. Cir. 70, 2016 Va. Cir. LEXIS 198 (Norfolk Dec. 30, 2016).

    Guardian’s complaint, which was filed less than one year after the guardian was appointed, was timely filed because the guardian proved the patient was incapacitated prior to the incident and never regained capacity; a doctor’s testimony was sufficient to rebut the presumption of capacity and prove that the patient was incapacitated while the doctor was treating her, and the patient was not going to, and did not, regain capacity. Byington v. Sentara Life Care Corp., 94 Va. Cir. 70, 2016 Va. Cir. LEXIS 198 (Norfolk Dec. 30, 2016).

    Incapacity due to brain trauma. —

    Although an injured motorcyclist’s guardian filed a personal injury complaint in excess of two years after the cause of action accrued, the complaint was timely filed in accordance with subdivision A 2 b of § 8.01-229 because the motorcyclist had suffered a traumatic brain injury and was incapacitated during the entirety of the prescribed limitation period. Eccleston v. Patriot Harley Davidson, Inc., 75 Va. Cir. 421, 2006 Va. Cir. LEXIS 331 (Prince William County June 15, 2006).

    Incompetence not shown. —

    Where the fraudulent conveyance action was filed in 1997 but the deed at issue was recorded in 1990, the two-year statute of limitations under § 8.01-243 had expired, and the injured party failed to show that the statute was tolled due to the injured party’s incompetence pursuant to subdivision A 1 of § 8.01-229 since the injured party did not present sufficient evidence regarding the incompetence or the length of the incompetence. Feller v. Hild, 69 Va. Cir. 502, 1999 Va. Cir. LEXIS 771 (Amherst County Dec. 10, 1999).

    Infancy. —

    Trial court granted the diocese and convent’s plea in bar directed against the former minor’s lawsuit filed against them and based on inappropriate touching by an academic teacher at the school that they operated and supervised, and which conduct occurred some 25 years before the former minor filed suit against them; while the normal statute of limitations for personal injuries was two years, that two years did not start to run until the former minor reached the age of majority and even that time could be extended if the fact of injury and its causal connection to sexual abuse was not known until it was communicated to a plaintiff, the General Assembly was entitled to and did define the accrual date for filing a civil action based on an intentional tort committed by a natural person against a minor in Va. Const., Art. IV, § 14, para. 4, and since the extended limitations period of subdivision 6 of § 8.01-249 did not apply because the diocese and convent were not natural persons, the trial court granted their pleas in bar. McConville v. Rhoads, 67 Va. Cir. 392, 2005 Va. Cir. LEXIS 177 (Norfolk June 8, 2005).

    Because the children had a private right of action for lead-based paint injuries under § 36-107.1 against a former owner, but not its agent, and because any concealment occurred when the owner sold the premises, the statute of limitations did not begin to run until the children became adults. Monroe v. First & Fed., Ltd., 69 Va. Cir. 475, 2006 Va. Cir. LEXIS 96 (Richmond Jan. 30, 2006).

    Plea granted. —

    Having decided to withdraw, dismiss, and not proceed on the negligence claim in her prior action, a plaintiff could not re-file that claim as part of this action by availing herself of the tolling provision of subdivision E 3 of this section; therefore, defendant’s plea in bar claiming the statute of limitations had run was granted. Shank v. Miller Bros., Inc., 56 Va. Cir. 39, 2001 Va. Cir. LEXIS 170 (Fairfax County Jan. 31, 2001).

    Because the plaintiffs conceded that certain allegations were time-barred, the defendants’ plea in bar was granted. Dolan v. Dyer, 61 Va. Cir. 650, 2002 Va. Cir. LEXIS 428 (Alexandria June 17, 2002).

    Dismissal without prejudice and refiling in district court did not bar subsequent nonsuit of circuit court appeal. —

    On appeal of a judgment of the Virginia General District Court to the Virginia Circuit Court, the rulings of the District Court were completely null and void, the plaintiff was provided a new trial, and was not barred from taking a nonsuit of the appeal to the Circuit Court, although the plaintiff’s claim was initially dismissed without prejudice and refiled with the District Court, as the dismissal without prejudice was not equivalent to a nonsuit. Joseph v. Giant Food, Inc., 61 Va. Cir. 143, 2003 Va. Cir. LEXIS 52 (Fairfax County Feb. 7, 2003).

    Applicability to insurance claims. —

    Insurer’s plea in bar was sustained because the statutory tolling provision did not apply where a prior suit naming a different insurer was nonsuited, more than two years had elapsed between the date of the fire and the date of filing of the suit, the legislature knew how to create tolling provisions for suits on insurance contracts, the policy provisions in question were part of a comprehensive regulatory scheme, and there was nothing that evinced an intent by the legislature to convert insurance contracts to something besides contracts of insurance. Graham v. United Servs. Auto. Ass'n, 89 Va. Cir. 94, 2014 Va. Cir. LEXIS 98 (Fairfax County June 26, 2014).

    Applicability to contract action. —

    Subsection D of § 8.01-229 did not apply to a breach of contract action where although the managing company’s statements of fees collected under a management agreement could arguably be construed as a means to obstruct the filing of an action, the managing company unquestionably breached the contract by failing to provide the statements to which the realty company was entitled, and the realty company had turned a blind eye to that breach for over 20 years. Merch. Realty, Inc. v. Hampton Rds. Mgmt. Assocs., 95 Va. Cir. 507, 2017 Va. Cir. LEXIS 101 (Chesapeake May 31, 2017).

    Tolling not applicable. —

    Because an executive brought a federal court action for malicious prosecution to a state court without asserting that the original claim was nonsuited for lack of jurisdiction, improper venue, or other good cause under § 8.01-380 , the case did not fall within the tolling provisions of subdivision E 3 § 8.01-229 ; thus, the case was dismissed as time barred under § 8.01-248 . Smith v. Sparshott, 2006 Va. Cir. LEXIS 133 (Fairfax County July 18, 2006).

    Upon reconsideration, dismissal of the claim for fraud was determined to be appropriate because the two-year limitation period in § 8.01-243 was not tolled when an investigation for insurance fraud related to the case had been initiated pursuant to 5 U.S.C.S. § 8902(m)(1) of the Federal Employees’ Benefits Act. Russell v. Gennari, 2006 Va. Cir. LEXIS 197 (Fairfax County Oct. 27, 2006).

    Plea in bar did not relate to when the action was commenced by the filing of the complaint in the clerk’s office because the basis for the demurrer was the concurrent separate requirement that a notice of lis pendens be filed before the expiration of the 10-year period; that the timely filing of the complaint did toll the running of time to commence the suit did not mean that the separate requirement for the filing of a notice of lis penden ceased because it did not. United Leasing Corp. v. Lacey, 101 Va. Cir. 402, 2013 Va. Cir. LEXIS 222 (Westmoreland County Jan. 16, 2013).

    Subsection H of § 8.01-229 , like the similar provisions in § 8.01-235 , operates with respect to the commencement of an action, not the separate independent requirement of the filing of a notice of lis pendens within the 10-year period as required by subsection C of § 8.01-251 . United Leasing Corp. v. Lacey, 101 Va. Cir. 402, 2013 Va. Cir. LEXIS 222 (Westmoreland County Jan. 16, 2013).

    Statute not tolled. —

    Parents commenced their original wrongful death action on July 2, 2012, but nonsuited the action and commenced the present action within the six-month period allowed by filing the instant amplified complaint, but the new claims constituted a different cause of action and the nonsuit did not toll the statute of limitations on the new claims; the statute of limitations on these new claims, whether viewed as a personal injury or a wrongful death claim, was two years, which started to run upon or before the son’s death on August 18, 2010, and as the parents did not raise these new claims prior to two years later, the new claims were time-barred. Susko v. Toor, 91 Va. Cir. 372, 2015 Va. Cir. LEXIS 169 (Norfolk Nov. 12, 2015).

    Action barred. —

    Where the original action against an estate was not proper as actions against an estate are not recognized, and suits have to be filed against a proper party, which the decedent, being dead, was not, there was no misnomer and the action was barred by the statute of limitations. Hanson v. Brooks, 56 Va. Cir. 290, 2001 Va. Cir. LEXIS 461 (Norfolk July 31, 2001).

    Inmate’s claim, which arose under the Virginia Tort Claims Act, was barred by the limitations period of § 8.01-195.7 because the inmate had filed his motion for judgment approximately 21 months after his notice of claim; while the inmate was under a “disability” during his incarceration pursuant to § 8.01-2 6 a, he was not “incapacitated” under § 8.01-229 A 1, and accordingly, the time period was not tolled. Hankins v. Commonwealth, 63 Va. Cir. 211, 2003 Va. Cir. LEXIS 168 (Lynchburg Oct. 6, 2003).

    Original suit seeking damages from a traffic accident filed against a decedent who died before the suit was filed and the original motion for judgment were legal nullities, did not toll the statute of limitations, and subdivision B 2 b of § 8.01-229 was inapplicable to the case since the motorist suffered a voluntary nonsuit; since the substitution of a personal representative for a deceased defendant was not to have been construed to fall within the correction of a misnomer under § 8.01-6 , the “relation back” provision of that section did not apply, so the applicable statute of limitation was found at subdivision B 2 a of § 8.01-229 , pursuant to which, the statute of limitations applied approximately 3 1/2 months before the motorist refiled the action and thus the case was dismissed as untimely filed. Antoine v. Reeves, 63 Va. Cir. 585, 2004 Va. Cir. LEXIS 92 (Norfolk Feb. 4, 2004).

    Although the § 8.01-243 limitations period on a conversion claim had not expired at the time a son filed his first warrant against an attorney, it had expired by the time he filed the second warrant where his initial nonsuit only extended the limitations period by six months under subsection E of this section, and he had filed the conversion claim more than five months after the extended limitations period. Thus, the conversion claim was time-barred. Morrissey v. Benjamin, 64 Va. Cir. 334, 2004 Va. Cir. LEXIS 196 (Richmond Apr. 6, 2004).

    Because a court’s second nonsuit order did not reflect that it was an “additional nonsuit” as described by § 8.01-380 , the tolling provisions of § 8.01-229 did not apply; consequently, a patient’s medical malpractice action was time barred and had to be dismissed. Naugle v. Miller, 71 Va. Cir. 408, 2004 Va. Cir. LEXIS 382 (Virginia Beach Dec. 2, 2004).

    In a plaintiff’s timely filed suit against a decedent to recover for car accident injuries, the plaintiff failed to substitute the decedent’s administrator for the decedent within the § 8.01-229 time period so as to toll the § 8.01-243 two-year statute of limitations. Thus, the plaintiff’s refiled suit against first the decedent (who was not a proper party) and then the administrator (as a substituted party for the decedent) was barred by § 8.01-243 . Martin v. DeJarnette, 67 Va. Cir. 168, 2005 Va. Cir. LEXIS 166 (Charlottesville Mar. 22, 2005).

    County’s plea in bar was overruled because the statutory time limitation did not create an issue of subject matter jurisdiction, was a special statute of limitations, and not a statute of repose, the taxpayer’s refiling of an assessment was timely, the relevant time limitation for the filing for the year 2006 was the assessment that gave rise to the taxpayer’s cause of action for that year, and, as such, it could hardly be persuasively maintained that the assessment was an event unrelated to the accrual of the cause of action. Hershey Chocolate of Va., Inc. v. Augusta Cnty., 89 Va. Cir. 154, 2014 Va. Cir. LEXIS 118 (Augusta County Aug. 20, 2014).

    Action not barred. —

    Client’s claim that a corporation and its employee violated the Act, §§ 13.1-502 and 13.1-504 , was not barred by the statute of limitations contained in the Virginia Securities Act, subsection D of § 13.1-522 , because the complaint was timely filed in the United States district court on November 23, 2010, and then immediately transferred to the circuit court after it was decided the federal court lacked jurisdiction; the client had until November 28, 2010, to file a claim under the Act because he alleged that he entered into a contract with the corporation and employee to purchase stock on November 28, 2008. Ahn v. C2 Educ. Sys., 83 Va. Cir. 457, 2011 Va. Cir. LEXIS 129 (Fairfax County Oct. 20, 2011).

    Personal injury claim was not time barred as: (1) the original suit was filed against defendants two and three within the two-year limit required by § 8.01-243 ; (2) after the decedent’s death, the administrator properly amended the complaint to include a wrongful death action under § 8.01-56 ; (3) after a voluntary nonsuit, the administrator brought the second action within the six-month tolling period under subdivision E 3 of § 8.01-229 ; and (4) an increased ad damnum in the refiled action did not convert the suit into a new cause of action. Jackson v. Vanga, 85 Va. Cir. 266, 2012 Va. Cir. LEXIS 90 (Norfolk Aug. 24, 2012).

    Since process can be reissued where service was not found, a warrant in debt is still pending on the docket for that three month period and has not been dismissed, abated or nonsuited, and since the statute specifically applies to the reissuance of process within three months of the return date which is 90 days and all parties agreed that the statute of limitations was tolled for 34 days, that would extend the original statute of limitations by 124 days, when added to May 17, 2011, accrual date, and clearly made July 1, 2013, the refiled date, within the tolled statute of limitations. Samayoa-Bolanos v. Williams, 91 Va. Cir. 106, 2015 Va. Cir. LEXIS 159 (Newport News Aug. 12, 2015).

    Negligence claim contained in plaintiff’s second complaint was not barred by the applicable statute of limitations for personal injury. Richey v. Weatherseal Insulation, LLC, 95 Va. Cir. 130, 2017 Va. Cir. LEXIS 18 (Nelson County Jan. 31, 2017).

    Estoppel. —

    Because a company accepted the proposition that the automatic stay effectively barred the executrix’s ability to advance a wrongful death action for the period of time to comply with the requirements of 11 U.S.C.S. § 362, the company was estopped from arguing that § 8.01-229 D did not toll the running of the limitations period in § 8.01-244 ; as a result, the company’s special plea in bar was denied. Smith v. Adelphia Cable Communs., 63 Va. Cir. 580, 2004 Va. Cir. LEXIS 5 (Roanoke Feb. 2, 2004).

    Trial court rejected the former minor’s claim that application of the statute of limitations to bar his action against the diocese and the convent for alleged sexual abuse that an academic teacher committed upon the former minor at the school they supervised and operated had to be tolled under estoppel principles, as the former minor did not plead any facts to show that they engaged in conduct that warranted application of the doctrine of estoppel in his case. McConville v. Rhoads, 67 Va. Cir. 392, 2005 Va. Cir. LEXIS 177 (Norfolk June 8, 2005).

    § 8.01-230. Accrual of right of action.

    In every action for which a limitation period is prescribed, the right of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person or damage to property, when the breach of contract occurs in actions ex contractu and not when the resulting damage is discovered, except where the relief sought is solely equitable or where otherwise provided under § 8.01-233 , subsection C of § 8.01-245 , §§ 8.01-249 , 8.01-250 or other statute.

    History. 1977, c. 617; 1996, c. 328.

    REVISERS’ NOTE

    Section 8.01-230 retains the traditional rule of Virginia case law that a cause of action accrues when the wrongful act or breach of duty or contract occurs. In tort cases this has generally been construed to occur when injury or other damage takes place irrespective of when discovered. See e.g., Hawks v. DeHart, 206 Va. 810 , 146 S.E.2d 187 (1966); but see § 8.2-725 [cause of action with regard to breach of certain warranties as to future performance does not accrue until latent defect in goods discovered or should have been discovered].

    The exceptions follow existing law. See e.g., Revisers’ notes to §§ 8.01-223 , 8.01-245 C, 8.01-249 , and 8.01-250 . Equity suits to which statutes of limitations may apply are also excepted. Cf. Revisers’ note to § 8.01-228 .

    Cross references.

    As to when right of action on claim against Commonwealth accrues, see § 8.01-192 .

    For provision as to persons under disability, see § 8.01-229 .

    Editor’s note.

    Acts 2020, cc. 99 and 180, which inserted “The diagnosis of a nonmalignant asbestos-related injury or disease shall not accrue an action based upon the subsequent diagnosis of a malignant asbestos-related injury or disease, and such subsequent diagnosis shall constitute a separate injury that shall accrue an action when such diagnosis is first communicated to the person or his agent by a physician;” in § 8.01-249 . Acts 2020, cc. 99 and 180, cl. 2 provides: “This act is intended to reverse Kiser v. A.W. Chesterton, 285 Va. 12 (2013).” See annotations under this section.

    Law Review.

    For comment, “Toward a Uniform State Product Liability Law — Virginia and the Uniform Product Liability Act,” see 36 Wash. & Lee L. Rev. 1145 (1979).

    For comment on this section in light of Farley v. Goode, 219 Va. 969 , 252 S.E.2d 594 (1979).

    see 4 G.M.U. L. Rev. 285 (1981).

    For article on Virginia’s continuing negligent treatment rule, see 15 U. Rich. L. Rev. 231 (1981).

    For article, “Products Liability and the Virginia Statute of Limitations — A Call for the Legislative Rescue Squad,” see 16 U. Rich. L. Rev. 323 (1982).

    For comment, “Statutes of Limitations in Occupational Disease Cases: Is Locke v. Johns-Manville a Viable Alternative to the Discovery Rule?,” see 39 Wash. & Lee L. Rev. 263 (1982).

    For 1987 survey of Virginia property law, see 21 U. Rich. L. Rev. 821 (1987).

    For an article, “Civil Practice and Procedure,” see 32 U. Rich. L. Rev. 1009 (1998).

    For a review of construction law in Virginia for year 1999, see 33 U. Rich. L. Rev. 827 (1999).

    For annual survey commentary, “Accrual of Causes of Action in Virginia,” see 41 U. Rich. L. Rev. 15 (2006).

    For annual survey article, “Civil Practice and Procedure,” see 46 U. Rich. L. Rev. 9 (2011).

    Michie’s Jurisprudence.

    For related discussion, see 4A M.J. Condominiums, § 1.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    For purposes of statute of limitations, there is but a single, indivisible cause of action for all injuries sustained, whether or not all of the damage is immediately apparent. Joyce v. A.C. & S., Inc., 785 F.2d 1200, 1986 U.S. App. LEXIS 22853 (4th Cir. 1986).

    The mere fact that most of the damage occurs many years later does not change Virginia law or create a new cause of action. Irvin v. Burton, 635 F. Supp. 366, 1986 U.S. Dist. LEXIS 25156 (W.D. Va. 1986).

    “Cause of action” and “right of action” compared. —

    There is a tendency by some to treat “cause of action” and “right of action” as interchangeable terms. While a cause of action and a right of action may accrue simultaneously, they need not do so. A right of action is a remedial right to presently enforce a cause of action. There can be no right of action until there is a cause of action. Stone v. Ethan Allen, Inc., 232 Va. 365 , 350 S.E.2d 629, 3 Va. Law Rep. 1342, 1986 Va. LEXIS 266 (1986).

    In an action for breach of warranty on common elements of condominium project, any unit owner whose deed was delivered before October 1, 1977, the effective date of this section, was entitled to the benefit of the rule that his right of action did not accrue until his property rights were injured. He had no property rights until he became an owner, and therefore his right of action accrued when his deed was delivered, if within the warranty period. On the other hand, a purchaser whose deed was delivered on or after October 1, 1977, was affected by this section. The statute of limitations began to run as to his claim when the breach of contract or duty occurred. That event took place when the first unit was conveyed to an individual owner. Harbour Gate Owners' Ass'n v. Berg, 232 Va. 98 , 348 S.E.2d 252, 3 Va. Law Rep. 552, 1986 Va. LEXIS 234 (1986).

    Equitable tolling only applies in Virginia where the defendant has actually concealed his culpability and the fact of the injury. A plaintiff aware of his injury is on “inquiry notice” to discover his cause of action by use of ordinary diligence. Resolution Trust Corp. v. Walde, 856 F. Supp. 281, 1994 U.S. Dist. LEXIS 7383 (E.D. Va. 1994).

    Virginia lacks a “cross-jurisdictional” equitable tolling rule. Wade v. Danek Med., Inc., 182 F.3d 281, 1999 U.S. App. LEXIS 14887 (4th Cir. 1999).

    Applicability of Virginia’s tolling rule in diversity action. —

    In any case in which a state statute of limitations applies — whether because it is “borrowed” in a federal question action or because it applies under Erie in a diversity action — the state’s accompanying rule regarding equitable tolling should also apply. Hence in a diversity action brought in federal court based on alleged injury arising out of back surgery, Virginia’s rule against equitable tolling, rather than federal rule, would apply. Wade v. Danek Med., Inc., 182 F.3d 281, 1999 U.S. App. LEXIS 14887 (4th Cir. 1999).

    Federal preemption. —

    Landowners’ tort claims related to a coal mine dewatering operation were untimely under Virginia law, which was not preempted by the discovery rule under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.S. §§ 9601-9675, because the claims could not be asserted under CERCLA; the landowners had not stated a basis for recovery of response or remediation costs, and the releases of water were federally permitted. Blankenship v. Consolidation Coal Co., 850 F.3d 630, 2017 U.S. App. LEXIS 4168 (4th Cir. 2017).

    Equitable relief exception to contract action accrues upon breach. —

    For cases in which the relief sought is solely equitable, Virginia law provides an exception to the rule that a contract action accrues upon breach. Goodell v. Rehrig Int'l, Inc., 683 F. Supp. 1051, 1988 U.S. Dist. LEXIS 3192 (E.D. Va. 1988), aff'd, 865 F.2d 1257, 1989 U.S. App. LEXIS 316 (4th Cir. 1989).

    Under this section accrual occurs when the breach of contract or duty occurs and therefore, like copyright infringement claims, unfair competition claims can be comprised of a multitude of separate and distinct claims, where “each occurrence inflicts a new injury and gives rise to a separate cause of action and plaintiff’s claim was not barred as to any injury accruing during the five year period preceding the filing of suit. Hoey v. Dexel Sys. Corp., 716 F. Supp. 222, 1989 U.S. Dist. LEXIS 8839 (E.D. Va. 1989). But see Unlimited Screw Prods., Inc. v. Malm, 781 F. Supp. 1121, 1991 U.S. Dist. LEXIS 19023 (E.D. Va. 1991).

    Complaints timely, even though filed before nonsuit orders. —

    Dismissal of later actions as untimely was error because, under subdivision E 3 of § 8.01-229 , a new action had to be filed within six months from the date of the nonsuit order in a prior action; because the complaints were refiled within six months of nonsuit orders, they were timely, even though the second complaints were filed before the nonsuit orders in prior case. Laws v. McIlroy, 283 Va. 594 , 724 S.E.2d 699, 2012 Va. LEXIS 85 (2012).

    Legal malpractice. —

    When malpractice is claimed to have occurred during the representation of a client by an attorney with respect to a particular undertaking or transaction, the breach of contract or duty occurs and the statute of limitations begins to run when the attorney’s services rendered in connection with that particular undertaking or transaction have terminated, notwithstanding the continuation of a general attorney-client relationship, and irrespective of the attorney’s work on other undertakings or transactions for the same client. Keller v. Denny, 232 Va. 512 , 352 S.E.2d 327, 3 Va. Law Rep. 1704, 1987 Va. LEXIS 162 (1987), limited, Moonlight Enters., LLC v. Mroz, 293 Va. 224 , 797 S.E.2d 536, 2017 Va. LEXIS 40 (2017).

    Life insurance policy. —

    With respect to life insurance policies, when a policy requires a demand for payment and proof of death, the statute of limitations begins to run on the date of the demand and proof. Arrington v. Peoples Sec. Life Ins. Co., 250 Va. 52 , 458 S.E.2d 289, 1995 Va. LEXIS 76 (1995).

    Suit on oral contract must be brought within three years after cause of action accrues, which is at breach, not at discovery of any resulting damage. Goodell v. Rehrig Int'l, Inc., 683 F. Supp. 1051, 1988 U.S. Dist. LEXIS 3192 (E.D. Va. 1988), aff'd, 865 F.2d 1257, 1989 U.S. App. LEXIS 316 (4th Cir. 1989).

    Derivative claims accrue when primary claim accrues. —

    Where the parents’ purported claim is derivative of their daughter’s claim, it accrued at the same time as the daughter’s claim, thus, it did not accrue when the parents first learned of the alleged tort against their child. Mahony v. Becker, 246 Va. 209 , 435 S.E.2d 139, 10 Va. Law Rep. 241, 1993 Va. LEXIS 119 (1993).

    Where former employee could have demanded issuance of stock certificate on start of employment based on oral contract, the statute of limitations begins to run at that time for breach of contract, not after he has been fired since to do otherwise would give him the ability to start the statute running at any moment he chooses. Goodell v. Rehrig Int'l, Inc., 683 F. Supp. 1051, 1988 U.S. Dist. LEXIS 3192 (E.D. Va. 1988), aff'd, 865 F.2d 1257, 1989 U.S. App. LEXIS 316 (4th Cir. 1989).

    Limitation began to run when divorce case ended by entry of final decree. —

    It was apparent from the allegations of the bill of complaint that the particular undertaking or transaction, which attorney was engaged to handle for client terminated on Dec. 30, 1980, when the divorce case was ended by the entry of a final decree incorporating the property settlement agreement and the limitation period then began to run and expired three years later; thus, the chancellor correctly held that this suit, filed in Dec. 1984, was time-barred. MacLellan v. Throckmorton, 235 Va. 341 , 367 S.E.2d 720, 4 Va. Law Rep. 2524, 1988 Va. LEXIS 50 (1988).

    Summary judgment was erroneously awarded to defendant in a medical malpractice suit where plaintiff’s allegations as to when injury occurred could have been properly construed so as to fall within the two-year statute of limitations. Renner v. Stafford, 245 Va. 351 , 429 S.E.2d 218, 9 Va. Law Rep. 1174, 1993 Va. LEXIS 76 (1993).

    Psychologist’s breach of confidence. —

    Patient’s cause of action accrued at the time clinical psychologist revealed his confidences to patient’s wife in 1983 and 1984, not after patient learned of the indiscretions, in 1993. Bullion v. Gadaleto, 872 F. Supp. 303, 1995 U.S. Dist. LEXIS 219 (W.D. Va. 1995).

    Accrual of cause of action. —

    Under Virginia law, a claim of injury to person or property accrues when the injury is sustained and a cause of action for breach of contract occurs at the time of the breach. Al-Abood v. El-Shamari, 217 F.3d 225, 2000 U.S. App. LEXIS 15437 (4th Cir. 2000).

    B.Torts.
    1.In General.

    If any injury or damage immediately results from the wrongful or negligent act of another, the party aggrieved has a cause of action, and the statute of limitations begins to run at that time. Stone v. Ethan Allen, Inc., 232 Va. 365 , 350 S.E.2d 629, 3 Va. Law Rep. 1342, 1986 Va. LEXIS 266 (1986).

    The initial degree of damage is immaterial. If any injury or damage immediately results from the wrongful or negligent act of another, the party aggrieved has a cause of action, and the statute of limitations begins to run at that time. Only the slightest injury is required to start the running of the limitations period. It is of no consequence that the amount of damages is not ascertainable until a later date. Resolution Trust Corp. v. Walde, 856 F. Supp. 281, 1994 U.S. Dist. LEXIS 7383 (E.D. Va. 1994).

    Continuing torts. —

    In arguing for application of the rule that the statute of limitations runs separately where there are discrete instances of wrongdoing, the plaintiff seeking to recover in trespass for damage to its property caused by the migration of petroleum hydrocarbons from the defendant’s property overlooked the fact that the migration did not occur in distinct episodes; rather, the migration occurred continuously throughout the decade and, under these circumstances, the plaintiff’s cause of action accrued when the hydrocarbons first migrated onto its land and was barred five years later. First Va. Banks, Inc. v. BP Exploration & Oil Co., 206 F.3d 404, 2000 U.S. App. LEXIS 3763 (4th Cir. 2000).

    Circuit court correctly applied the five-year statute of limitations, to the claim of trespass damages because the incursion of sediment into a creek that flowed into the property owners association’s lake occurred for more than five years prior to the suit being filed; sediment discharge continuously flowed from a shopping center’s basins into the lake due to functional design, and absent any cause but human labor, sediment discharge from the basins would continue indefinitely. Forest Lakes Cmty. Ass'n v. United Land Corp. of Am., 293 Va. 113 , 795 S.E.2d 875, 2017 Va. LEXIS 6 (2017).

    CIRCUIT COURT OPINIONS

    Expiration of statute for new defendants. —

    Medical waste incident occurred March 31, 2017, so the statute of limitations expired on March 31, 2019; plaintiff filed the motion to amend within the period of the statute of limitations but failed to ensure the new defendants were properly added by obtaining leave of the court prior to the expiration of the limitation period, and thus the statute of limitations had now expired for the new defendants. Allowing the amendment would be futile and was denied. Freeman v. Curtis Bay Med. Waste Servs. Va., L.L.C., 102 Va. Cir. 245, 2019 Va. Cir. LEXIS 263 (Petersburg June 21, 2019).

    Demurrer. —

    Demurrer failed because a couple alleged three separate direct promises to either pay debt or do some particular act and the couple’s right of action accrued at moment of breach. Jackson v. Quantrex Integrated Tech. Group, Inc., 57 Va. Cir. 368, 2002 Va. Cir. LEXIS 42 (Southampton County Feb. 12, 2002).

    Failure to sue proper party. —

    Where the original action against an estate was not proper as actions against an estate are not recognized, and suits have to be filed against a proper party, which the decedent, being dead, was not, there was no misnomer and the action was barred by the statute of limitations. Hanson v. Brooks, 56 Va. Cir. 290, 2001 Va. Cir. LEXIS 461 (Norfolk July 31, 2001).

    False or deceptive advertising claims. —

    Right of action accrued and the two-year limitation period of § 8.01-248 began to run, for claims to recover damages for deceptive advertising, at the time that the home buyers went to settlement on their home, and the home buyers’ false advertising claims were therefore time barred; suits predicated upon claims of false advertising accrued at the time of publication of the prohibited material with the purpose of inducing the public to enter into an obligation, and the fact that the extent of the damages may not have been discovered or calculable until a later date was not determinative of the date of accrual. Glass v. Trafalgar House Prop., Inc., 58 Va. Cir. 437, 2002 Va. Cir. LEXIS 160 (Loudoun County Apr. 15, 2002).

    Claim for deceptive advertising, under § 59.1-68.3, by a condominium association against a manufacturer of an allegedly defective exterior insulation finishing system was barred by the two-year statute of limitations because the time that plaintiffs “suffered loss” occurred either when the finishing system was chosen by the builders or when the system was installed, pursuant to § 8.01-230 . Bd. of Dirs. of the Lesner Pointe Condo. on the Chesapeake Bay Ass'n v. Harbour Point Bldg. Corp., 2002 Va. Cir. LEXIS 422 (Virginia Beach June 18, 2002).

    Limited liability company’s plea in bar to buyers’ false advertising claim was overruled because the § 8.01-248 two-year statute of limitations began to run on date the home sale went to settlement rather than the contract date, and the suit was thus timely; the buyers did not suffer a loss until they purchased the home, and the purchase was not complete until settlement. Brown v. Labelle, 84 Va. Cir. 258, 2012 Va. Cir. LEXIS 23 (Fairfax County Feb. 2, 2012).

    Action for fraud. —

    Where the the record contained conflicting evidence as to the time that condominium unit owners should have discovered that a manufacturer of an alleged defective exterior insulation finishing system made fraudulent statements, the manufacturer’s plea in bar was denied; for fraud, the statute of limitations began to run from the time that the complaining party discovered or should have discovered the fraud in the exercise of due diligence, under § 8.01-230 . Bd. of Dirs. of the Lesner Pointe Condo. on the Chesapeake Bay Ass'n v. Harbour Point Bldg. Corp., 2002 Va. Cir. LEXIS 422 (Virginia Beach June 18, 2002).

    Misrepresentation under Consumer Protection Act. —

    Ongoing nature of the relationship between the parties dictated that plaintiffs’ cause of action accrued when they had a right of action, that is, at the time plaintiffs received equity ownership of house in 1999; prior to settlement in 1999, plaintiffs could not have discovered any alleged misrepresentations made by defendants in violation of the Virginia Consumer Protection Act, § 59.1-196 et seq. Fix v. Eakin/Youngtob Assocs., 61 Va. Cir. 604, 2002 Va. Cir. LEXIS 95 (Alexandria Feb. 15, 2002).

    Consumer Protection Act claim. —

    Specific rule of subdivision A 13 of § 59.1-200 of the Virginia Consumer Protection Act, prohibiting the attempt to collect unenforceable liquidated damages, falls under the “or other statute” exception to the general rule of accrual of a cause of action under the Virginia Consumer Protection Act at the time of the agreement found in § 8.01-230 . Kearney v. Robinson Land Trust, 80 Va. Cir. 467, 2010 Va. Cir. LEXIS 162 (Charlottesville June 29, 2010).

    Legal malpractice. —

    Because a second divorce decree was deemed void ab initio, the client was injured upon its entry; however, because the client’s motion for judgment was filed well after the applicable statute of limitations for legal malpractice had expired, the application of § 8.01-230 did not violate the client’s constitutional right to due process of law. Small v. Lehman, 67 Va. Cir. 192, 2005 Va. Cir. LEXIS 19 (Fairfax County Mar. 24, 2005).

    Defamation. —

    Date this defamation action accrued was the date on which defendant published his original online review of plaintiff on December 3, 2015. Will Nesbitt Realty, LLC v. Jones, 2018 Va. Cir. LEXIS 66 (Fairfax County Apr. 30, 2018).

    Breach of contract claim. —

    Breach of contract claim was barred by the statute of limitations under § 8.01-230 , as the action was filed well after three years had passed; therefore, a party’s special plea of the statute of limitations was sustained. Bd. of Dirs. of Birdneck Villas Condo. Ass'n v. Birdneck Villas, LLC, 73 Va. Cir. 175, 2007 Va. Cir. LEXIS 77 (Virginia Beach Apr. 2, 2007).

    Property buyer’s action against a bank for breach of contract was time-barred by the five-year statute of limitations under subdivision 2 of § 8.01-246 because the cause of action accrued upon the date of the purported breach and not upon the discovery of the breach or resulting damages under § 8.01-230 . Bear Ridge Developers, L.L.C. v. Cooper, 78 Va. Cir. 50, 2008 Va. Cir. LEXIS 182 (Fairfax County Dec. 2, 2008).

    When the Commonwealth of Virginia sued a contractor’s alleged successors for breach of contract, a plea in bar asserting the claim was barred by the statute of limitations was denied because the cause of action did not accrue until a county approved the contractor’s work, which occurred within the limitations period prior to suit being filed. Commonwealth v. CCA Indus., 82 Va. Cir. 621, 2009 Va. Cir. LEXIS 273 (Hanover County Dec. 22, 2009).

    Accrual date for contract claim. —

    Lessee’s breach of contract counterclaim was timely filed because consequential damage did not occur until April 2008 when the lessee had to begin pumping and hauling production waste to an off-site location; therefore, the statute of limitations would have begun to run in April 2008 and would not expire until April 2013, five years from the date of the damage or injury. Colchester Sec. II, LLC v. Krispy Kreme Doughnut Corp., 85 Va. Cir. 250, 2012 Va. Cir. LEXIS 73 (Fairfax County Aug. 23, 2012).

    Lessee’s breach of contract counterclaim was timely filed because the lessor’s obligations as to wastewater removal were executory, namely, existing throughout the lease term, and the lessee’s cause of action would not accrue until the date its lease was ended. Colchester Sec. II, LLC v. Krispy Kreme Doughnut Corp., 85 Va. Cir. 250, 2012 Va. Cir. LEXIS 73 (Fairfax County Aug. 23, 2012).

    Indemnification. —

    Lessee could seek indemnification for any pump and haul payments made after June 19, 2009 because each obligation was a separate payment for a separate month’s pump and haul requirement, and each payment was a distinct transaction for the purposes of the statute of limitations; only those payments made prior to that date were time-barred by the three year statute of limitations. Colchester Sec. II, LLC v. Krispy Kreme Doughnut Corp., 85 Va. Cir. 250, 2012 Va. Cir. LEXIS 73 (Fairfax County Aug. 23, 2012).

    Breach of oral contract claim. —

    Cause of action for breach of an oral contract for continued employment accrued when the employment offer was allegedly rescinded, not when long-term disability benefits ceased. All elements of the breach of an oral contract claim were present on that date and the cessation of benefits was an effect of the alleged breach. Valentine v. Norfolk Southern Corp., 73 Va. Cir. 354, 2007 Va. Cir. LEXIS 216 (Norfolk June 4, 2007).

    Accrual date for tortious interference. —

    Restaurant operator timely filed its tortious interference with business claim against the development company and associate for their alleged role in preventing live entertainment from being presented in the restaurant operator’s restaurant, which cut into the restaurant’s profits. Section 8.01-258 provided a two-year “catch-all” limitations provision for actions such as tortious interference with business that were not addressed by other limitations provisions and since it was possible that the relevant breach occurred after the time passed for sound-reducing material to be installed, which pursuant to § 8.01-230 accrued less than two years before the tortious interference claim was filed, the restaurant operator’s tortious interference claim was not time barred. Station # 2, LLC v. Lynch, 75 Va. Cir. 179, 2008 Va. Cir. LEXIS 52 (Norfolk Apr. 30, 2008).

    Accrual date for permanent nuisance. —

    Trial court granted the power company’s motion for summary judgment that the nuisance alleged in plaintiffs’ complaints were barred by the statute of limitations because the power company and plaintiffs agreed that the dumping of fly ash began in 2002 and that the original actions were filed in 2009; the statute of limitations for a personal action for injury to person or property was five years from accrual of the cause of action; the complaints were replete with allegations supporting the permanent and enduring nature of the alleged nuisance; and plaintiffs’ cause of action for a permanent nuisance accrued when the damage first occurred in 2002. Fentress Families Trust v. Va. Elec. & Power Co., 93 Va. Cir. 98, 2016 Va. Cir. LEXIS 52 (Chesapeake Mar. 25, 2016).

    Laches. —

    Plaintiffs filed their complaint less than two years after foreclosure, and thus the claims for breach and fraud were brought within their respective statute of limitations; while plaintiffs were not barred by laches, they failed to plead sufficient facts that there was no adequate remedy at law, given that damages could be awarded after foreclosure while equity was appropriate prior to foreclosure, and the demurrer was sustained in this regard. Waters v. CitiMortgage, Inc., 92 Va. Cir. 460, 2013 Va. Cir. LEXIS 209 (Chesterfield County Jan. 14, 2013).

    Limitations period begins to run when the initial injury, even if relatively slight, is sustained. —

    When an inmate sued a retailer for assault and battery, false imprisonment and defamation for causing his arrest, his causes of action accrued when he was allegedly falsely arrested, and he could not claim they continued to accrue throughout his subsequent incarceration, because the allegation that he continued to suffer physical or mental hurt from a tort did not defer the date of accrual of his causes of action. McEvily v. K-Mart Corp., 73 Va. Cir. 51, 2007 Va. Cir. LEXIS 48 (Fairfax County Feb. 28, 2007).

    Date of injury determinative. —

    Where victim alleged that doctor’s misdiagnosis of gout caused a worsening undetected disease, the doctor’s motion to dismiss based on the statute of limitations was denied, as the limitation period ran from time the victim suffered the injury and not from the date of the misdiagnosis. Morton v. Gray, 56 Va. Cir. 298, 2001 Va. Cir. LEXIS 462 (Norfolk Aug. 1, 2001).

    Where a malpractice claim arose from a single, isolated act, the statute of limitations began to run when the wrong was done and not when the patient discovered his damages; a patient’s claim based on a misdiagnosis was barred by the two-year statute of limitations. Hewlette v. Proffer, 56 Va. Cir. 515, 2001 Va. Cir. LEXIS 493 (Norfolk Oct. 16, 2001).

    Where an argument could be made that an employee’s breach of fiduciary duty and emotional distress claims did not accrue when payment was originally stopped, but when the bank officially stopped them, there was insufficient evidence to determine whether the claims were barred by the appropriate statute of limitations. Bright v. First Va. Bank, 2002 Va. Cir. LEXIS 313 (Fairfax County Dec. 20, 2002).

    Doctor’s plea in bar filed against a wrongful death and survival complaint arising from the death of the survivors’ decedent was overruled, as the survivors’ complaint was filed within two years of the date that the decedent’s heart condition worsened prior to his death, which was held to be the date the triggering injury was sustained. Byun v. Kim, 2007 Va. Cir. LEXIS 49 (Fairfax County Mar. 12, 2007).

    Statute of limitations did not accrue for a doctor’s failure to administer a treatment until the injury to the patient’s fetus first occurred because the patient could not sustain injury from the alleged negligent failure unless and until she became pregnant and the actionable injury occurred within a four-week period; the patient sustained injury within a four-week window between the sixteenth and twentieth weeks of pregnancy. Brown v. Tashman, 93 Va. Cir. 262, 2016 Va. Cir. LEXIS 120 (Fairfax County May 2, 2016).

    Last date that any services were arguably performed by defendant on the unwritten contract was August 23, 2013, and the filing of this action on October 11, 2016, was clearly outside of the three-year time period. Miller v. Dees, 95 Va. Cir. 101, 2017 Va. Cir. LEXIS 53 (Page County Jan. 26, 2017).

    Continuing torts. —

    Damage was done on each occasion a limited liability company’s employees dug into property owners’ land and walked across it to install equipment on the pole, and thus, there was a series of separate causes of action for trespass, each with its own set of damages. Richardson v. Va. Elec. & Power Co., 96 Va. Cir. 114, 2017 Va. Cir. LEXIS 143 (Norfolk July 17, 2017).

    Continuous treatment. —

    Patient timely filed a medical malpractice action within the two-year statute of limitations because the doctor provided continuous, uninterrupted treatment from the date of injury through the date of the delivery of the patient’s child, which tolled the date of accrual; as a result of the patient’s sensitization, the doctor ordered a treatment plan for the duration of her pregnancy. Brown v. Tashman, 93 Va. Cir. 262, 2016 Va. Cir. LEXIS 120 (Fairfax County May 2, 2016).

    Doctor did not provide continuous, substantially uninterrupted care for the patient for blood sensitization-related issues because the evidence established a cessation in treatment after the delivery of the patient’s second child. Brown v. Tashman, 93 Va. Cir. 262, 2016 Va. Cir. LEXIS 120 (Fairfax County May 2, 2016).

    Contaminated water. —

    Claims based on fraud and misrepresentation under the Virginia Consumer Protection Act and negligence were barred by the statute of limitations because the injuries were sustained in October 2012. It was sufficient that the injured party simply attributed her ailments to the condition of the contaminated well water, as she did in October 2012; the record was not incomplete as to the beginning of her travails nor was a ruling on this matter premature. Isle v. Martin, 91 Va. Cir. 149, 2015 Va. Cir. LEXIS 193 (Chesterfield County Sept. 10, 2015).

    Injury in defamation suit. —

    Applicant’s cause of action for defamation arose when the letter in question was published, not when his employment application was rejected later on, since the applicant’s pleadings alleged not only financial loss, but damages based on mortification, humiliation, shame, injury to his reputation, and harm to his business; thus the defamation suit filed more than a year after the date of the letter was time barred, even though it was filed less than a year after the rejection of the employment application. Nelson v. Town of Gordonsville, 67 Va. Cir. 91, 2005 Va. Cir. LEXIS 3 (Orange County Feb. 18, 2005).

    Accrual of cause of action. —

    Church’s Virginia Consumer Protection Act claim was barred by the two-year statute of limitations because the church discovered, or should have discovered, that the construction company failed to perform the roofing work in a workmanlike manner once the church realized that the roof continued to leak after the roof repair was completed in October 2015, but the church did not file its complaint until October 1, 2018; and the church contacted the construction company shortly after the work was completed to correct the work it had performed, implying that the church was aware that the construction company had improperly performed at least some of the contracted roof work. Hyde Park Free Will Baptist Church v. Skye-Brynn Enters., 102 Va. Cir. 180, 2019 Va. Cir. LEXIS 163 (Norfolk May 24, 2019).

    Right to pursue recovery. —

    Trial court denied the demurrer that the first worker filed against the truck driver’s second amended motion for judgment, as the truck driver was not barred from seeking recovery for damages that his rented dump truck sustained even though he apparently had not paid within the alleged statute of limitations period the company that rented him the dump truck for the damage the truck sustained despite the fact that he was financially obligated to do so; the truck driver’s cause of action and right of action accrued at the time the accident occurred and the damage was sustained, and not when he paid the company. Laguna v. Wallace, 67 Va. Cir. 535, 2004 Va. Cir. LEXIS 358 (Loudoun County Aug. 4, 2004).

    Amended complaint must relate back to original complaint. —

    Negligent infliction of emotional harm claim in an employee’s amended complaint related back to the date of the original complaint under § 8.01-6.1 , and was not time-barred because the original complaint contained an intentional infliction claim, and thus the amendment was not a new substantive cause of action; the employee was reasonably diligent in asserting his claim and no prejudice was shown by allowing the amendment. Ballard v. Hanover Research Council, 2010 Va. Cir. LEXIS 110 (Fairfax County Sept. 24, 2010).

    Promissory notes. —

    Trial court determined, regarding a promissory note, that the five-year breach of contract statute of limitations that applied began to run at the time the installment payment was due to be paid in accordance with the promissory note, as courts generally followed that approach and Virginia followed that general rule. Gilliam v. Gilliam, 2003 Va. Cir. LEXIS 173 (Fairfax County Aug. 14, 2003).

    Plea in bar sustained. —

    Defendants’ plea in bar was sustained as to conversion claim for acts occurring more than five years from the date that plaintiffs first brought their derivative claims and overruled as to acts occurring within the five-year limitations period as each separate act of conversion by defendants inflicted a new injury to the company and gave rise to a new and separate cause of action under § 8.01-230 . Colgate v. Disthene Group, Inc., 86 Va. Cir. 218, 2013 Va. Cir. LEXIS 9 (Buckingham County Feb. 4, 2013).

    CASE NOTES

    Analysis

    Defamation. —

    Defamation plaintiff’s claims based on the statements in the letter were barred as they were made more than one year prior to the filing of the action. By the same token, plaintiff’s defamation claims based on statements made in the arbitration hearing were not barred by the statute of limitations because they occurred within the one-year limitations period. Katz v. Odin, Feldman & Pittleman, P.C., 332 F. Supp. 2d 909, 2004 U.S. Dist. LEXIS 17257 (E.D. Va. 2004).

    Negligence. —

    Claim for negligence based on a failure to release a mortgage lien after payment of the mortgage loan debt was untimely, since the claim accrued upon the failure to release the lien rather than when the lien was belatedly released. Rossmann v. Lazarus, No. 1:08cv316, 2009 U.S. Dist. LEXIS 1741 (E.D. Va. Jan. 9, 2009).

    2.Personal Injury.

    “Injury.” —

    Injury, as it is used in this section, means positive, physical or mental hurt to the claimant, not legal wrong to him in the broad sense that his legally protected interests have been invaded. Lo v. Burke, 249 Va. 311 , 455 S.E.2d 9, 1995 Va. LEXIS 22 (1995).

    “Injury” means “a positive, physical or mental hurt.” St. George v. Pariser, 253 Va. 329 , 484 S.E.2d 888, 1997 Va. LEXIS 41 (1997).

    The statutory word “injury” means positive, physical or mental hurt to the claimant, not legal wrong to him in the broad sense that his legally protected interests have been invaded; thus, the running of the time is tied to the fact of harm to the plaintiff, without which no cause of action would come into existence and is not keyed to the date of the wrongful act, another ingredient of a personal injury cause of action. Locke v. Johns-Manville Corp., 221 Va. 951 , 275 S.E.2d 900, 1981 Va. LEXIS 233 (1981).

    Limitations period begins to run when the initial injury, even if relatively slight, is sustained, and the manifestation of more substantial injuries at a later date does not extend the limitations period. Large v. Bucyrus-Erie Co., 524 F. Supp. 285, 1981 U.S. Dist. LEXIS 15228 (E.D. Va. 1981).

    An injury is deemed to occur, and the statute of limitations period begins to run, whenever any injury, however slight, is caused by the negligent act, even though additional or more severe injury or damage may be subsequently sustained as a result of that act. St. George v. Pariser, 253 Va. 329 , 484 S.E.2d 888, 1997 Va. LEXIS 41 (1997).

    Only slightest injury required to start running of limitation period. —

    In Virginia, only the slightest injury is required to start the running of the limitations period. International Surplus Lines Ins. Co. v. Marsh & McLennan, Inc., 838 F.2d 124, 1988 U.S. App. LEXIS 1160 (4th Cir. 1988).

    Statute runs from injury, not later onset of symptoms. —

    In actions for personal injury the accrual point is when damage occurs, therefore, it is conceivable that when a disease manifests itself by symptoms, such as pain, discomfort or impairment of function, expert medical testimony will demonstrate the injury occurred weeks, months or even years before onset of the symptoms; thus, the cause of action would accrue and the limitations period would run from the earlier and not the later time. Locke v. Johns-Manville Corp., 221 Va. 951 , 275 S.E.2d 900, 1981 Va. LEXIS 233 (1981).

    Limitations period ran from the date a patient was injured. —

    Limitations period ran from the date a patient was injured by a prescription drug and not from the date the patient discovered the wrongdoing by pharmaceutical company executives, when they pleaded guilty to misbranding the drug. Boysaw v. Purdue Pharma, No. 1:07CV00079, 2008 U.S. Dist. LEXIS 39990 (W.D. Va. May 16, 2008).

    All claims except plaintiff drug purchaser’s fraud claim against defendant pharmaceutical company would have been time-barred because they accrued pursuant to § 8.01-230 as of the date of injury (or when she was diagnosed with breast cancer and not when she discovered that her cancer was related to taking defendant’s drug) in the absence of a cross-jurisdictional tolling rule applicable to federal class action suits. The statute of limitations was tolled for all claims by operation of subdivision E 1 of § 8.01-229 based on a previously filed class action suit in federal court of which plaintiff was a putative member, and the tolling brought all claims within § 8.01-243 ’s two-year filing window since the Supreme Court of Virginia had concluded that the sweeping language of subdivision E 1 of § 8.01-229 allowed tolling of prior suits arising in both state and federal courts. Torkie-Tork v. Wyeth, 739 F. Supp. 2d 887, 2010 U.S. Dist. LEXIS 60630 (E.D. Va. 2010).

    Relevance of time of wrongful act or exposure incidental. —

    The time of a defendant’s wrongful or negligent act, or of a plaintiff’s exposure to an outstanding wrong committed by the defendant, is not relevant in and of itself. It becomes relevant to the running of the limitations period only incidentally: i.e., only if the wrongful act or exposure to it causes some injury to the plaintiff. Large v. Bucyrus-Erie Co., 524 F. Supp. 285, 1981 U.S. Dist. LEXIS 15228 (E.D. Va. 1981).

    In the absence of retroactive application of subdivision 4 of § 8.01-249 , the cause of action accrues and the statute of limitations begins to run when an injury is sustained, pursuant to this section. The cause of action accrues when the injury is diagnosable based on medical technology existing at the time of the injury. Moreover, the cause of action is deemed to have accrued whenever the injury, however slight, is complete. Palmer v. Norfolk & W. Ry., 646 F. Supp. 610, 1985 U.S. Dist. LEXIS 12890 (W.D. Va. 1985).

    Proof of time plaintiff hurt. —

    For purposes of this section, the “time plaintiff was hurt” is to be established from available competent evidence, produced by a plaintiff or a defendant, that pinpoints the precise date of injury with a reasonable degree of medical certainty. Locke v. Johns-Manville Corp., 221 Va. 951 , 275 S.E.2d 900, 1981 Va. LEXIS 233 (1981).

    Dates of acts as indicators of dates of injury. —

    The actual dates of the defendants’ acts or of exposure are reliable indicators of the date of injury only if the act or exposure and the injury occur contemporaneously. Large v. Bucyrus-Erie Co., 524 F. Supp. 285, 1981 U.S. Dist. LEXIS 15228 (E.D. Va. 1981).

    An injury need not occur contemporaneously with a negligent act, but may arise at some later point. St. George v. Pariser, 253 Va. 329 , 484 S.E.2d 888, 1997 Va. LEXIS 41 (1997).

    Products liability cases. —

    Actions under Virginia law grounded in a personal injury-products liability factual pattern are governed by the torts statute, which runs from the time of injury. Bly v. Otis Elevator Co., 713 F.2d 1040, 1983 U.S. App. LEXIS 25185 (4th Cir. 1983), different results reached on reh'g, 754 F.2d 1111, 1985 U.S. App. LEXIS 28168 (4th Cir. 1985).

    Accrual of action for medical malpractice occurring during course of treatment. —

    When medical malpractice is claimed to have occurred during a continuous and substantially uninterrupted course of examination and treatment in which a particular illness or condition should have been diagnosed in the exercise of reasonable care, the date of injury occurs, the cause of action for that malpractice accrues, and the statute of limitations commences to run when the improper course of examination, and treatment if any, for the particular malady terminates. Farley v. Goode, 219 Va. 969 , 252 S.E.2d 594, 1979 Va. LEXIS 195 (1979).

    Rule presupposes proof that treatment was continuous and uninterrupted. —

    The rule that when medical malpractice is claimed to have occurred during a continuous and substantially uninterrupted course of treatment and examination in which a particular illness or condition should have been diagnosed in the exercise of reasonable care, the statute of limitations commences to run when the course of treatment and examination terminates presupposes that a continuous course of improper examination or treatment which is substantially uninterrupted is proved as a matter of fact. When the malpractice complained of constitutes a single isolated act, however, the statute of limitations commences to run from the date of the injury. Farley v. Goode, 219 Va. 969 , 252 S.E.2d 594, 1979 Va. LEXIS 195 (1979).

    Continuous treatment. —

    Trial court erred in dismissing a patient’s medical malpractice suit, alleging that a radiology practice negligently failed to diagnose an abnormality in her brain, on the basis that the suit was filed outside the statute of limitations as a continuous and substantially uninterrupted course of examination and treatment existed between the patient and the practice as each of the seven studies of the scans of the patient’s head and brain, occurring over a three-year period, related to similar symptoms involving pain and numbness on the right side of the patient’s face, and the evidence allowed a finding that the practice was aware of the patient’s ongoing symptoms. The statute of limitations began to run on October 24, 2005, the day that the physician-patient relationship between the practice and the patient ended; thus, her suit, brought on October 12, 2007, was within the statute of limitations. Chalifoux v. Radiology Assocs. of Richmond, Inc., 281 Va. 690 , 708 S.E.2d 834, 2011 Va. LEXIS 87 (2011).

    Wrongful conception. —

    Even though a legal wrong may have occurred in 1989 when the defendants performed the negligent sterilization procedure on plaintiff, no injury under the Locke v. Johns-Manville Corp, 221 Va. 951 , 275 S.E.2d 900 (1981) accrual rule occurred at that time because plaintiff had suffered no “positive, physical or mental hurt” related to her alleged cause of action, wrongful conception. Nunnally v. Artis, 254 Va. 247 , 492 S.E.2d 126, 1997 Va. LEXIS 104 (1997).

    An obstetrician’s negligent failure to properly execute a laparoscopic tubal cauterization on a patient commences the two-year statute of limitations under § 8.01-243 . This statute does not begin anew when the patient later learns that she is pregnant. Irvin v. Burton, 635 F. Supp. 366, 1986 U.S. Dist. LEXIS 25156 (W.D. Va. 1986).

    Claim of patient who alleged that her doctor’s failure to remove intrauterine device caused her to become infertile was barred. —

    by the two-year statute of limitations, since the statute of limitations began to run from the moment a plaintiff suffered an injury, as she was injured when the intrauterine device was allowed to remain in her body, and her malpractice claim accrued when her relationship with her doctor ended in 1979, while her malpractice suit was not commenced until Feb. 1984. Granahan v. Pearson, 782 F.2d 30, 1985 U.S. App. LEXIS 26108 (4th Cir. 1985).

    Two-year period of limitations barred plaintiff’s claims that he was injured from each exposure to paint products prior to two years before filing his suit, but plaintiff’s claims of injuries, that occcurred within two years of the suit, for which he went to the emergency room, were not barred. Williams v. E.I. DuPont de Nemours & Co., 11 F.3d 464, 1993 U.S. App. LEXIS 31996 (4th Cir. 1993).

    Claims by a former patient against professional counselor. —

    District court properly dismissed a former patient’s injury to property and continuing malpractice claims against a professional counselor as time-barred where, whether the patient’s claims were classified as for personal injury or for medical malpractice and barred by a two-year limitations period or were classified as for breach of oral contract and barred by a three-year limitations period, the counselor’s actions upon which the patient’s claims were based, pursuant to § 8.01-230 , occurred during the patient’s joint therapy sessions with the counselor more than four years prior to the filing of his complaint. Ranney v. Nelson, 176 Fed. Appx. 405, 2006 U.S. App. LEXIS 9812 (4th Cir. 2006).

    Limitations plea not sustained. —

    Where there was nothing in the record that would place the date of plaintiff’s injury more than two years prior to the filing of the motion for judgment in this case, defendant wholly failed to meet his burden of proof to sustain his statute of limitations plea. St. George v. Pariser, 253 Va. 329 , 484 S.E.2d 888, 1997 Va. LEXIS 41 (1997).

    C.Contracts.

    When claim accrues. —

    Complaint was filed well within the limitations period because the claim accrued, not at the time of the parties’ oral contract formation, but instead at the parties’ breakdown in negotiations for the purchase of defendant’s interest. Clarke v. Newell, No. 1:05cv1013, 2005 U.S. Dist. LEXIS 31053 (E.D. Va. Nov. 23, 2005).

    Trustee’s malpractice claim was based entirely on defendants’ recommendation to purchase the investment; the trustee’s argument was that defendants recommended that the trustee invest a larger portion of the plan’s assets with the investment. Even assuming that the professional relationship between the parties was based in contract, the lengthier five-year limitations period provided under Virginia law still barred the claim; based on defendants’ recommendations, the trustee purchased the investment note on April 26, 1999, more than five years and eleven months before this action was filed on March 18, 2005, therefore, the state law professional malpractice claim was barred by the statute of limitations. Browning v. Tiger's Eye Benefits Consulting, Inc., 313 Fed. Appx. 656, 2009 U.S. App. LEXIS 3927 (4th Cir. 2009).

    Third-party beneficiary claim premised on a Virginia insurance agent’s alleged failure to add the contractor as an additional insured on a subcontractor’s policy was untimely; certificates of insurance issued by the agent did not represent a written contract, but even if there was a written contract the claim accrued more than five years before suit was filed, at the time that the final certificate was issued without adding the contractor to the insurance. Mulvey Constr., Inc. v. Bituminous Cas. Corp., 571 Fed. Appx. 150, 2014 U.S. App. LEXIS 8587 (4th Cir. 2014).

    In accordance with § 8.01-246 , the three-year statute of limitations cannot begin to run as to the testamentary beneficiary until a cause of action accrues, after the death of the testator. Thus § 8.01-246 can, under the proper circumstances in which no injury is sustained, provide one of the referenced statutory exceptions to the rule set forth in § 8.01-230 that contractual rights of action accrue at breach. Thorsen v. Richmond SPCA, 292 Va. 257 , 786 S.E.2d 453, 2016 Va. LEXIS 68 (2016) (but see § 64.2-520.1 and notes thereunder).

    Borrower’s breach of contract claims against a bank, whether viewed as a right of action or a cause of action, accrued when the debt on a mortgage loan agreement was accelerated prior to foreclosure. Because the borrower did not file suit within five years of this date of accrual, the statute of limitations barred the borrower’s claims. Kerns v. Wells Fargo Bank, N.A., 296 Va. 146 , 818 S.E.2d 779, 2018 Va. LEXIS 120 (2018).

    Promissory notes. —

    A cause of action on a note accrues when the obligation to pay is breached and, accordingly, where a note contains a due date and the promisor fails to make payment on that date, the cause of action accrues at that time. Rivera v. Nedrich, 259 Va. 1 , 529 S.E.2d 310, 1999 Va. LEXIS 140 (1999).

    Recording of deeds. —

    Regardless of when a debtor discovered the breach of contract, the debtor’s November 17, 2005, malpractice action against the settlement attorney who allegedly failed to properly draft and record deeds to her property was barred by the statute of limitations because it was not filed within three years after the last service provided by the attorney, the recording of a defective “corrected” deed on February 11, 2002. Ranasinghe v. Compton, 341 Bankr. 556, 2006 Bankr. LEXIS 868 (Bankr. E.D. Va. 2006).

    Release of mortgage lien. —

    Claim for breach of contract based on a failure to release a mortgage lien after payment of the mortgage loan debt was untimely, since the claim accrued upon the failure to release the lien rather than when the lien was belatedly released. Rossmann v. Lazarus, No. 1:08cv316, 2009 U.S. Dist. LEXIS 1741 (E.D. Va. Jan. 9, 2009).

    Breach of fiduciary duty. —

    Two-year limitations period, which applied to a breach of fiduciary duty claim by a former co-owner of two corporations, began to run when the co-owner was injured when he sold his interests in the corporations in 2002, and thus, the limitations period expired in 2004, and the co-owner therefore was barred from bringing this claim in 2006. Williams v. Reynolds, No. 4:06CV00020, 2006 U.S. Dist. LEXIS 79178 (W.D. Va. Oct. 31, 2006).

    United States District Court for the Eastern District of Virginia, Alexandria Division, does not read the United States Court of Appeals for the Fourth Circuit’s decision in Al-Abood ex rel. Al-Abood v. El-Shamari , 217 F.3d 225, 2000 U.S. App. LEXIS 15437 (2000), as applying the discovery rule to breach of fiduciary duty claims that happen to create a presumption of fraud. Without clearer direction from the Fourth Circuit or the Virginia courts, the court does not believe that it should contradict Virginia statutory law and apply the discovery rule to breach of fiduciary duty claims. Rossmann v. Lazarus, No. 1:08cv316, 2008 U.S. Dist. LEXIS 68408 (E.D. Va. Sept. 3, 2008).

    Claim for breach of fiduciary duty based on a failure to release a mortgage lien after payment of the mortgage loan debt was untimely, since the claim accrued upon the failure to release the lien rather than when the lien was belatedly released. Rossmann v. Lazarus, No. 1:08cv316, 2009 U.S. Dist. LEXIS 1741 (E.D. Va. Jan. 9, 2009).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    The cases cited below were decided under corresponding provisions of former law. The terms “the statute” and “the statute of limitations,” as used below, refer to former provisions.

    A right of action cannot accrue until there is a cause of action. Sides v. Richard Mach. Works, Inc., 406 F.2d 445, 1969 U.S. App. LEXIS 9144 (4th Cir. 1969) (commented on in 4 U. Rich. L. Rev. 148 (1969)); Caudill v. Wise Rambler, Inc., 210 Va. 11 , 168 S.E.2d 257, 1969 Va. LEXIS 188 (1969).

    Essential elements of a good cause of action, whether based on an alleged breach of contract or on a tortious act, are a legal obligation of a defendant to the plaintiff, a violation or breach of that right or duty, and a consequential injury or damage to the plaintiff. In the absence of injury or damage to a plaintiff or his property, he has no cause of action and no right of action can accrue to him. Caudill v. Wise Rambler, Inc., 210 Va. 11 , 168 S.E.2d 257, 1969 Va. LEXIS 188 (1969).

    There may be several rights of action and one cause of action and rights may accrue at different times from the same cause. Caudill v. Wise Rambler, Inc., 210 Va. 11 , 168 S.E.2d 257, 1969 Va. LEXIS 188 (1969).

    Action accrues at time of wrongful act. —

    In the absence of special circumstances that are common to various types of cases, particularly disability of the plaintiff or fraudulent concealment by the defendant, the cause of action accrues and the statute commences to run at the time of the wrongful act. Hawks v. DeHart, 206 Va. 810 , 146 S.E.2d 187, 1966 Va. LEXIS 154 (1966).

    Determining time of accrual. —

    The statute of limitations begins to run when the right of action accrues. The determination of the precise time at which the cause of action is to be deemed to have accrued not infrequently presents a question of nice discrimination between the event creating, or per se giving rise to, the cause of action and the event which merely recognizes and ascertains the existence of a cause of action previously existing. Brunswick Land Corp. v. Perkinson, 153 Va. 603 , 151 S.E. 138 , 1930 Va. LEXIS 256 (1930).

    Statute begins to run when cause of action accrues. —

    As a general rule, the statute of limitations commences to run against a cause of action at the time of its accrual. Cookus v. Peyton, 42 Va. (1 Gratt.) 431, 1845 Va. LEXIS 11 (1845); Bowles v. Elmore, 48 Va. (7 Gratt.) 385, 1851 Va. LEXIS 20 (1851); Andrews v. Roanoke Bldg. Ass'n & Inv. Co., 98 Va. 445 , 36 S.E. 531 , 1900 Va. LEXIS 62 (1900); McCormick v. Romans, 214 Va. 144 , 198 S.E.2d 651, 1973 Va. LEXIS 272 (1973).

    When this section applies, it begins to run from the date of injury. Tyler v. R.R. St. & Co., 322 F. Supp. 541, 1971 U.S. Dist. LEXIS 14571 (E.D. Va. 1971) (commented on in 6 U. Rich. L. Rev. 167 (1971)).

    Not from when damage ascertained. —

    The limitation begins to run from the moment the cause of action accrues and not from the time it is ascertained that damage has been sustained. Hawks v. DeHart, 206 Va. 810 , 146 S.E.2d 187, 1966 Va. LEXIS 154 (1966); Burton v. Terrell, 368 F. Supp. 553, 1973 U.S. Dist. LEXIS 11016 (W.D. Va. 1973).

    The limitation statute is triggered when the harm is done and not when the plaintiff discovers the injury. Smithfield Packing Co. v. Dunham-Bush, Inc., 416 F. Supp. 1156, 1976 U.S. Dist. LEXIS 13951 (E.D. Va. 1976).

    It is the occurrence of the offense which marks the beginning of the running of the statute and the date of consequential injuries is immaterial. Sitwell v. Burnette, 349 F. Supp. 83, 1972 U.S. Dist. LEXIS 12330 (W.D. Va. 1972).

    Difficulty in ascertainment does not change rule. —

    The limitation begins to run from the moment the cause of action accrues and not from the time it is ascertained that damage has been sustained. The difficulty in ascertaining the fact that a cause of action exists does not change the general rule. Richmond Redevelopment & Hous. Auth. v. Laburnum Constr. Corp., 195 Va. 827 , 80 S.E.2d 574, 1954 Va. LEXIS 162 (1954).

    The applicable period of limitation begins to run from the moment the cause of action arises rather than from the time of discovery of injury or damage, and difficulty in ascertaining the existence of a cause of action is irrelevant. Comptroller ex rel. VMI v. King, 217 Va. 751 , 232 S.E.2d 895, 1977 Va. LEXIS 233 (1977).

    Despite later occurrence of substantial damages. —

    Where an injury, though slight, is sustained in consequence of the wrongful or negligent act of another and the law affords a remedy therefor the statute of limitations attaches at once. It is not material that all the damages resulting from the act should have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. Caudill v. Wise Rambler, Inc., 210 Va. 11 , 168 S.E.2d 257, 1969 Va. LEXIS 188 (1969).

    Where the damage arises from a cause not then immediately effective, the cause of action does not arise until the injury can be shown. The reason and justice of this is perfectly apparent, for a plaintiff who merely feared ultimate damage under such circumstances would invite defeat if he only relied upon his fears and was unable to prove any actual damage. So the courts have formulated the general rule thus: Whenever any injury, however slight it may be, is complete at the time the act or omission is completed, the cause of action then accrues; but, whenever the act or omission is not legally injurious, there is no cause of action until such injurious consequences occur, and it accrues at the time of such consequential injury. Sides v. Richard Mach. Works, Inc., 406 F.2d 445, 1969 U.S. App. LEXIS 9144 (4th Cir. 1969) (commented on in 4 U. Rich. L. Rev. 148 (1969)).

    Necessity for demand. —

    The principle that a cause of action does not accrue until demand has been made is subject to the well-recognized exception that where the only act necessary to perfect the plaintiff’s cause of action is one to be performed by the plaintiff and he is under no restraint or disability, he cannot indefinitely suspend the statute of limitations by delaying the performance of that act. This is based upon the principle that it is not the policy of the law to permit a party against whom the statute runs to defeat its operation by neglecting to do an act which devolves upon him in order to perfect his remedy against another. C & O Ry. v. Willis, 200 Va. 299 , 105 S.E.2d 833, 1958 Va. LEXIS 189 (1958).

    Contribution. —

    The right to contribution becomes complete and enforceable upon the payment and discharge of the common obligation. Thus, a cause of action for contribution arises at that time. Van Winckel v. Carter, 198 Va. 550 , 95 S.E.2d 148, 1956 Va. LEXIS 241 (1956).

    Demand and refusal not required as prerequisite to breach of covenant. —

    Where defendants’ remote predecessors in title granted to a railway land for a right of way, covenanting to fence the remainder of their land to keep in cattle and agreeing that they and those claiming under them would not hold the railway responsible if their cattle wandered on the track and were killed, the covenants were broken by failure to erect the fences within a reasonable time after the railroad began to operate along the right of way, and under the facts of the case it was not a prerequisite to breach, that there be proved a demand by the covenantee and refusal by covenantor. C & O Ry. v. Willis, 200 Va. 299 , 105 S.E.2d 833, 1958 Va. LEXIS 189 (1958).

    Demand payable at death of debtor. —

    Where a demand is payable at the death of the debtor, the statute only begins to run at his death. Duncan v. Duncan, 117 Va. 487 , 85 S.E. 485 , 1915 Va. LEXIS 59 (1915) (see also Duncan v. Wright, 38 Va. (11 Leigh) 542 (1841)).

    Claim of child to compensation for services. —

    If a child had a valid claim to compensation for her services to her mother, it accrued during the lifetime of the mother, and the statute of limitations then began to run. Harshberger v. Alger, 72 Va. (31 Gratt.) 52, 1878 Va. LEXIS 27 (1878).

    Legacy limited on future event. —

    Where a legacy is limited upon a future event, a cause of action cannot accrue, nor the statute of limitations begins to run, nor laches be imputed, until that event occurs. Effinger v. Hall, 81 Va. 94 , 1885 Va. LEXIS 14 (1885).

    Recovery of distributive shares upon discovery of will. —

    Twenty years after distribution of a supposed intestate’s estate, his will was discovered. The statute of limitations to recover from a distributee, who was not a legatee, the amount paid to him did not begin to run until the discovery of the will. Craufurd v. Smith, 93 Va. 623 , 23 S.E. 235 , 1895 Va. LEXIS 137 (1895).

    Action between trustee and cestui que trust. —

    The statute of limitations does not begin to run in favor of the trustee against a claim of the cestui pertaining to the trust until the termination of the trust. Lomax v. Pendleton, 7 Va. (3 Call) 538, 1790 Va. LEXIS 12 (1790); Redwood v. Riddick, 18 Va. (4 Munf) 222, 1814 Va. LEXIS 30 (1814).

    Running of statute against remainderman. —

    The statute of limitations does not commence to run against a remainderman in favor of the purchaser of the life estate until the death of the life tenant. Ball v. Johnson, 49 Va. (8 Gratt.) 281, 1851 Va. LEXIS 63 (1851); Hope v. Norfolk & W. Ry., 79 Va. 283 , 1884 Va. LEXIS 83 (1884); Effinger v. Hall, 81 Va. 94 , 1885 Va. LEXIS 14 (1885); Davis v. Tebbs, 81 Va. 600 , 1886 Va. LEXIS 127 (1886); Hannon v. Hounihan, 85 Va. 429 , 12 S.E. 157 , 1888 Va. LEXIS 52 (1888); Beattie v. Wilkinson, 36 F. 646, 1888 U.S. App. LEXIS 2662 (C.C.D. Va. 1888).

    A life tenant of personal property sold her life interest and died. The purchaser continuing to hold the property did not hold under, but adversely to the remainderman, and the statute commenced to run on the death of the life tenant. Layne v. Norris, 57 Va. (16 Gratt.) 236, 1861 Va. LEXIS 4 (1861).

    Assessment on unpaid stock by court. —

    Where the officers of a corporation which has assigned all its property, including the unpaid portion of its capital stock, neglect to levy an assessment on the unpaid stock, and the levy is made by the court in a proceeding instituted by the trustee, limitation begins to run from the date of the assessment by the court. Vanderwerken v. Glenn, 85 Va. 9 , 6 S.E. 806 , 1888 Va. LEXIS 2 (1888) (see also Lewis’ Adm’r v. Glenn, 84 Va. 947 , 6 S.E. 866 (1888)).

    Enforcement of stockholders’ double liability. —

    The statute of limitations did not begin to run against action to enforce bank stockholders’ double liability until the date on which the court ascertained the extent of the liability and ordered the receiver to enforce it. Hospelhorn v. Corbin, 179 Va. 348 , 19 S.E.2d 72, 1942 Va. LEXIS 228 (1942).

    Assessment against stockholder. —

    As between a company and its stockholders, and as between the company’s creditors and its stockholders, the statute of limitations begins to run from the time the assessments become due and payable pursuant to the company’s call. Gold v. Paynter, 101 Va. 714 , 44 S.E. 920 , 1903 Va. LEXIS 78 (1903).

    Loan of stock to be returned on demand. —

    A testator had borrowed five shares of stock, to be transferred back to the lender whenever he demanded it. The testator in his will gave the stock to a legatee. His executrix qualified on February 12, 1917, and delivered the stock to the legatee November 11, 1917. More than a year after the executrix qualified, complainant, the lender, demanded the stock from her. Upon her refusal on June 21, 1922, complainant instituted suit for the recovery of the stock. It was held that the right of action did not accrue on the date of the qualification of the executrix, but accrued only upon a demand and a refusal, or a conversion of the property by someone holding the stock under the original bailee, and therefore the suit was not barred by this section. Stevenson v. Jones, 142 Va. 391 , 128 S.E. 568 , 1925 Va. LEXIS 345 (1925).

    Effect of power of attorney to confess judgment. —

    The fact that annexed to an obligation to pay a certain sum upon a certain date was a power of attorney, authorizing a designated attorney to confess judgment at any time after the date for the amount of the obligation, did not accelerate the running of the statute of limitations, which did not begin to run until the date of maturity. Although the defendants or their agent might confess judgment “at any time” prior to that date, the creditor could not compel them to do so. Walker v. Temple, 130 Va. 567 , 107 S.E. 720 , 1921 Va. LEXIS 176 (1921).

    Action by carrier for freight charges. —

    A carrier’s cause of action for freight charges against the consignee of goods arises when the carrier delivers the goods to the consignee. W.L. Becker & Co. v. Norfolk & W. Ry., 125 Va. 558 , 100 S.E. 478 , 1919 Va. LEXIS 45 (1919).

    Shipowners’ claims for demurrage. —

    Where bills of lading upon which shipowners’ claims for demurrage were predicated, were issued in December, 1940, and January, 1941, but the shipments did not arrive in the United States until April, 1941, and under the terms of the bills of lading it would be impossible to determine the amount due thereon until the vessel arrived in the United States, the right to bring any action thereon first accrued and the five-year statute of limitations began to run when the vessel arrived in April, 1941. Brown & Williamson Tobacco Corp. v. The S.S. Anghyra, 157 F. Supp. 737, 1957 U.S. Dist. LEXIS 2569 (D. Va. 1957), aff'd in part and rev'd in part, 277 F.2d 9, 1960 U.S. App. LEXIS 5072 (4th Cir. 1960).

    In an action for deceit in the sale of a chattel, it was held that the cause of action accrued at the time of the deceit practiced, and the limitation began to run immediately. Rice v. White, 31 Va. (4 Leigh) 474, 1833 Va. LEXIS 43 (1833).

    In an action by a de jure officer to recover emoluments received by a de facto officer during his occupancy of a public office, the statute begins to run in favor of a person who occupied the office under bona fide claim of right from the judgment of the court annulling his pretensions to the office. Brunswick Land Corp. v. Perkinson, 153 Va. 603 , 151 S.E. 138 , 1930 Va. LEXIS 256 (1930).

    B.Torts.
    1.In General.

    Action accrues when tort committed. —

    The limitation begins to run from the moment that the right of action occurs; and such right occurs when the tort is committed and a cause of action exists. Sitwell v. Burnette, 349 F. Supp. 83, 1972 U.S. Dist. LEXIS 12330 (W.D. Va. 1972).

    Separate causes of action from single wrongful act. —

    From a single wrongful act of the defendant two separate causes of action may arise: one for property damage and the other for personal injuries. Caudill v. Wise Rambler, Inc., 210 Va. 11 , 168 S.E.2d 257, 1969 Va. LEXIS 188 (1969).

    A cause of action in property damage actions vis-a-vis personal injury accrues at a different time even though the actions have their genesis in a common product and share the same purchase date. Smithfield Packing Co. v. Dunham-Bush, Inc., 416 F. Supp. 1156, 1976 U.S. Dist. LEXIS 13951 (E.D. Va. 1976).

    Accrual of action for property damage and personal injuries from purchase of automobile. —

    At the time the plaintiff purchased the automobile, when the alleged breach of the implied warranty of fitness occurred, she had a cause of action against the defendants for property damage and a potential cause of action for personal injuries. Her right to recover for property damage accrued at the time of the alleged breach of warranty, that is, when she purchased the automobile. Her right to recover damages for personal injuries accrued at the time she was injured. Caudill v. Wise Rambler, Inc., 210 Va. 11 , 168 S.E.2d 257, 1969 Va. LEXIS 188 (1969).

    Warranty that can be implied from sale of appliance was breached the day of the sale so as to set statute of limitations running. Insurance Co. of N. Am. v. GE Co., 376 F. Supp. 638, 1974 U.S. Dist. LEXIS 8280 (W.D. Va. 1974).

    But action accrues on date of injury in negligence action. —

    In simple tort actions based solely on negligence theories the cause of action accrues upon the injury and not when the item was purchased. Campbell v. Colt Indus., Inc., 349 F. Supp. 166, 1972 U.S. Dist. LEXIS 12214 (W.D. Va. 1972).

    Action for contribution. —

    Where a transit company, sued along with other joint tort-feasors by a passenger injured on one of its buses, made a settlement with the passenger, to which the other joint tort-feasors refused to contribute, the statute of limitations did not begin to run against an action by the transit company, on behalf of the insurance carriers that indemnified it for such settlement, against the other joint tort-feasors for contribution, until payment to the injured passenger was made by the indemnitors through the transit company. McKay v. Citizens Rapid Transit Co., 190 Va. 851 , 59 S.E.2d 121, 1950 Va. LEXIS 175 (1950).

    Accrual of action for architectural deficiencies. —

    In causes of action for tortious breach of implied warranty that architectural drawings and specifications were properly prepared, and for tortious breach of the architects’ duty to exercise their reasonable skills, ability and judgment in the preparation of such plans, the cause of action for direct damages from both accrued at the time the defective work was performed, not at the time the damages resulting from the breaches were discovered. Federal Reserve Bank v. Wright, 392 F. Supp. 1126, 1975 U.S. Dist. LEXIS 13643 (D. Va. 1975).

    A cause of action against architects for allegedly defective design was barred by the statute of limitations which began to run not later than the date of final approval of the working drawings and specifications. However, this ruling was not dispositive where there was evidence that the damage to the building was caused by negligent failure of the architects to perform their duties of supervision during construction. Comptroller ex rel. VMI v. King, 217 Va. 751 , 232 S.E.2d 895, 1977 Va. LEXIS 233 (1977).

    Action for taking water from stream. —

    Where a plaintiff was injured for the first time by the increased quantity of water taken from a stream by the defendant, his right of action accrued from that date, although the defendant had long before erected a tank and pumping station on its own land and taken smaller quantities of water from the stream. Norfolk & W. Ry. v. Allen, 118 Va. 428 , 87 S.E. 558 , 1916 Va. LEXIS 24 (1916).

    A cause of action for the pollution of a stream by the discharge of sewage therein accrues when the discharge is in sufficient quantities to pollute the stream and create a nuisance. McKinney v. Trustees of Emory & Henry College, Inc., 117 Va. 763 , 86 S.E. 115 , 1915 Va. LEXIS 92 (1915) (see also Virginia Hot Springs Co. v. McCray, 106 Va. 461 , 56 S.E. 216 (1907)).

    Dam flooding land. —

    Where the injury complained of arose from the flooding of complainant’s lands by reason of defendant’s dam — a permanent structure — the cause of action arose at the time of the first commencement of the injury following the original erection of the dam. Norfolk & W. Ry. v. Hayden, 121 Va. 118 , 93 S.E. 77 , 1917 Va. LEXIS 16 (1917).

    In an action against bank directors for misconduct and neglect of duties, where fraud is not alleged or proved, and no concealment on the part of the directors is shown, the statute of limitations begins to run from the time the alleged wrongs were committed. Winston v. Gordon, 115 Va. 899 , 80 S.E. 756 , 1914 Va. LEXIS 146 (1914).

    Father’s action for seduction of daughter. —

    Where the daughter lived away from her father’s house at the time of the seduction, but returned and was confined there and nursed, the statute of limitations will only begin to run against the father’s action for the seduction from the time of the daughter’s return. Clem v. Holmes, 74 Va. (33 Gratt.) 722, 1880 Va. LEXIS 72 (1880) (see Fry v. Leslie, 87 Va. 269 , 12 S.E. 671 (1891)).

    2.Personal Injury.

    Factors making claim for personal injuries actionable. —

    For a claim for personal injuries to become actionable these factors are indispensable: (1) a legal obligation of the defendant to the claimant; (2) a commission or omission by the defendant breaching that duty; (3) negligence of the defendant occasioning the breach; and (4) harm to the claimant as a proximate consequence of the breach. Only from the happening of all of these ingredients does a cause of action evolve. Until all of them have become executed actualities, no right of action for the harm is constituted. Sides v. Richard Mach. Works, Inc., 406 F.2d 445, 1969 U.S. App. LEXIS 9144 (4th Cir. 1969) (commented on in 4 U. Rich. L. Rev. 148 (1969)); Barnes v. Sears, Roebuck & Co., 406 F.2d 859, 1969 U.S. App. LEXIS 9026 (4th Cir. 1969).

    Action accrues when plaintiff injured. —

    A plaintiff’s right of action for damages for personal injuries does not accrue until he is hurt. Caudill v. Wise Rambler, Inc., 210 Va. 11 , 168 S.E.2d 257, 1969 Va. LEXIS 188 (1969).

    Plaintiff’s action against defendant accrued when he was injured. Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    Right of action accrued not at time of seller’s negligence but at time of buyer’s injury. Barnes v. Sears, Roebuck & Co., 406 F.2d 859, 1969 U.S. App. LEXIS 9026 (4th Cir. 1969).

    Statute begins running at time of wrong, not when discovered. —

    The time for the commencement of the running of personal injury statutes of limitation is that point in time when the wrong is done, and not when the plaintiff discovers the damage. Greeson v. Sherman, 265 F. Supp. 340, 1967 U.S. Dist. LEXIS 9065 (W.D. Va. 1967).

    In personal injury actions the limitation on the right to sue begins to run when the wrong is done and not when the plaintiff discovers that he has been damaged. Hawks v. DeHart, 206 Va. 810 , 146 S.E.2d 187, 1966 Va. LEXIS 154 (1966); Bolen v. Bolen, 409 F. Supp. 1374, 1976 U.S. Dist. LEXIS 17131 (W.D. Va. 1976).

    Nor at time of purchase. —

    A plaintiff’s action for personal injuries, alleged to have been caused by the negligence of the seller in the inspection and sale of a bicycle, accrued at the time of the plaintiff’s alleged injuries and not at the time he purchased the bicycle. Barnes v. Sears, Roebuck & Co., 406 F.2d 859, 1969 U.S. App. LEXIS 9026 (4th Cir. 1969).

    Nor at time of breach of warranty. —

    Plaintiffs’ rights of action for personal injuries accrued at the time they were hurt and not at the time of the alleged breach of warranty. Caudill v. Wise Rambler, Inc., 210 Va. 11 , 168 S.E.2d 257, 1969 Va. LEXIS 188 (1969); Campbell v. Colt Indus., Inc., 349 F. Supp. 166, 1972 U.S. Dist. LEXIS 12214 (W.D. Va. 1972).

    The statute of limitations begins to run for breach of warranty actions at the time of injury. Campbell v. Colt Indus., Inc., 349 F. Supp. 166, 1972 U.S. Dist. LEXIS 12214 (W.D. Va. 1972).

    Medical malpractice cases. —

    Virginia is committed to the rule that in personal injury actions the limitation on the right to sue begins to run when the wrong is done and not when the plaintiff discovers that he has been damaged, even in malpractice cases. Morgan v. Schlanger, 374 F.2d 235, 1967 U.S. App. LEXIS 7295 (4th Cir. 1967).

    The rule in medical malpractice cases is that the right to bring an action for personal injury begins to run when the wrong is done and not when the plaintiff discovers that he has been damaged. Cradle v. Superintendent, Correctional Field Unit #7, 374 F. Supp. 435, 1973 U.S. Dist. LEXIS 14221 (W.D. Va. 1973).

    Foreign body left in patient at time of surgery. —

    Where a foreign body is left in a patient at the time of surgery, the accrual of the cause of action is at the closing of the incision, not at the discovery of the fact some time afterward. Hawks v. DeHart, 206 Va. 810 , 146 S.E.2d 187, 1966 Va. LEXIS 154 (1966).

    Republication of defamatory statement. —

    The author of a defamation is liable for its republication by a third party, provided such republication is the natural and probable consequence of his act, or if he has presumptively or actually authorized its republication. Such republication constitutes a new cause of action against the original author, and an action brought within one year from the date of the republication is timely, although more than a year has passed since the first publication. Weaver v. Beneficial Fin. Co., 199 Va. 196 , 98 S.E.2d 687, 1957 Va. LEXIS 179 (1957).

    3.Property Damage.

    Action accrues on purchase date. —

    In property damage actions, regardless of whether they sound in contract or tort, the accrual time begins on the purchase date. Smithfield Packing Co. v. Dunham-Bush, Inc., 416 F. Supp. 1156, 1976 U.S. Dist. LEXIS 13951 (E.D. Va. 1976).

    Statute begins running when action accrues. —

    In property damage actions the limitation begins to run when cause of action accrues rather than when damage has been sustained. Smithfield Packing Co. v. Dunham-Bush, Inc., 416 F. Supp. 1156, 1976 U.S. Dist. LEXIS 13951 (E.D. Va. 1976).

    Accrual of action based on breach of warranty. —

    The purchaser’s cause of action against the dealer and manufacturer for property damage, based on theories of breach of warranty, express or implied, arises at the time of purchase of the product. Eden Corp. v. Utica Mut. Ins. Co., 350 F. Supp. 637, 1972 U.S. Dist. LEXIS 11418 (W.D. Va. 1972).

    C.Contracts.

    Statute runs from date payment due. —

    The statute of limitations on a contract begins to run from the time payment is due. Of necessity, the due date depends upon the terms, either expressed or implied, of the contract in issue. Clifton D. Mayhew, Inc. v. Blake Constr. Co., 482 F.2d 1260, 1973 U.S. App. LEXIS 8586 (4th Cir. 1973).

    Account for goods sold. —

    The statute of limitations begins to run from the time the account is due. The due date depends upon the terms, express or implied, upon which the articles are sold. Columbia Heights Section 3, Inc. v. Griffith-Consumers Co., 205 Va. 43 , 135 S.E.2d 116, 1964 Va. LEXIS 143 (1964).

    Contracts in writing not under seal. —

    As to actions based upon contracts in writing not under seal, under familiar principles of law, the statute begins to run from the time of a violation or breach of a legal duty or obligation owed a plaintiff by a defendant. McCloskey & Co. v. Wright, 363 F. Supp. 223, 1973 U.S. Dist. LEXIS 13097 (E.D. Va. 1973).

    On the happening of an anticipatory breach the promisee has the right to await the time for performance and bring suit when that time has arrived, and the statute of limitations on the promisee’s right of action does not begin to run until the time for performance fixed by the terms of the contract, unless there has been a repudiation of the entire contract, when the statute would start to run from the repudiation. Simpson v. Scott, 189 Va. 392 , 53 S.E.2d 21, 1949 Va. LEXIS 182 (1949).

    Where there is an undertaking which requires a continuation of services, the statute of limitations does not begin to run until the termination of the undertaking. McCormick v. Romans, 214 Va. 144 , 198 S.E.2d 651, 1973 Va. LEXIS 272 (1973).

    Where there is a continuing agreement between attorney and client, the statute of limitations does not begin to run until the termination of the agreement. McCormick v. Romans, 214 Va. 144 , 198 S.E.2d 651, 1973 Va. LEXIS 272 (1973).

    Contract to execute purchase-money notes. —

    Where there is a sealed agreement between the plaintiff and defendant that the latter shall execute notes at a specified time, in payment for land, the statute begins to run against the agreement at that time. Davis v. McMullen, 86 Va. 256 , 9 S.E. 1095 , 1889 Va. LEXIS 33 (1889).

    Default in one of several notes. —

    If a contract provides that on default in the payment of one of several notes the remaining unpaid notes shall become due, the stipulation has the effect of fixing a contingency upon the happening of which the debt is to mature at a time earlier than the dates given in the notes for their maturity, and the statute of limitations begins to run against the entire debt upon such default. Country Club Portsmouth, Inc. v. Wilkins, 166 Va. 325 , 186 S.E. 23 , 1936 Va. LEXIS 192 (1936).

    Instrument guaranteeing payment of note. —

    Where a loan was made by administrators, at which time a guarantor executed an instrument guaranteeing payment of the note but deferring liability under the guaranty until its determination by advertising and selling the property under and by virtue of the terms of the deed of trust which secured the loan, there was no merit in a contention that the statute of limitations began to run upon the guaranty when the note became due and was not paid; for the administrators had a reasonable time after the maturity of the note, within which to demand a foreclosure, and that reasonable time was measured by the time during which an action could have been maintained on the primary obligation. Thus the statute did not begin to run on the guaranty until the original note was barred by this section. Whitehurst v. Duffy, 181 Va. 637 , 26 S.E.2d 101, 1943 Va. LEXIS 212 (1943).

    Action on note redelivered to maker as indemnity. —

    The statute of limitations did not begin to run against a note that had been redelivered to the maker to hold as indemnity against loss as bail for the payee until the liability of the maker as bail ceased. Bowles v. Elmore, 48 Va. (7 Gratt.) 385, 1851 Va. LEXIS 20 (1851).

    Contract to give a lien on a contingent estate. —

    Limitations do not begin to run against an action for the breach of an agreement by contingent beneficiaries to have a claim made a lien on the corpus of the estate, until the death of the life tenant. Brown v. Ford, 120 Va. 233 , 91 S.E. 145 , 1917 Va. LEXIS 102 (1917).

    Accrual of cause of action on employment contract. —

    If a party elects to treat an employment contract as in force until actual termination of the employment relationship occurs in hopes of negotiating a reconciliation without judicial intervention, and such attempts at settlement fail, the cause of action accrues at the time the employment relationship ceases. Taliaferro v. Willett, 411 F. Supp. 595, 1976 U.S. Dist. LEXIS 16641 (E.D. Va. 1976).

    Claim for services rendered under oral contract to devise land. —

    The cause of action for the reasonable value of services rendered a decedent pursuant to an oral contract to devise land, which contract is unenforceable under the statute of frauds, accrues upon the death of the decedent without making the devise agreed on. Ricks v. Sumler, 179 Va. 571 , 19 S.E.2d 889, 1942 Va. LEXIS 249 (1942).

    Contract for wages and additional compensation by devise. —

    The cause of action for breach of a contract under which plaintiff worked for defendant’s decedent for nominal wages with the promise of additional compensation by devise did not accrue until the death of decedent. Although the employment has been terminated by decedent, this was not an anticipatory breach of the entire contract. Simpson v. Scott, 189 Va. 392 , 53 S.E.2d 21, 1949 Va. LEXIS 182 (1949).

    Service in consideration for all or part of estate. —

    Where a party renders valuable service to another in consideration for such other’s promise to leave him all or part of his estate the promisee is not entitled to receive compensation until the death of the promisor. Payment is not due until that time; hence, the statute of limitations does not begin to run until the death of the promisor. Cochran v. Bise, 197 Va. 483 , 90 S.E.2d 178, 1955 Va. LEXIS 246 (1955).

    Subscription to stock. —

    The statute of limitations begins to run in favor of stockholders for amounts due upon unpaid stock subscriptions only from the time such assessments are made. Morrow v. Vaughan-Bassett Furn. Co., 173 Va. 417 , 4 S.E.2d 399, 1939 Va. LEXIS 209 (1939).

    Agreement by one purporting to act as president of a nonexistent corporation to erect a gasoline station on property which he did not own and lease it for 10 years beginning on a certain date was breached when he failed to do so by such date. The statute of limitations began to run from such time. Galumbeck v. Suburban Park Stores Corp., 214 F.2d 660, 1954 U.S. App. LEXIS 2750 (4th Cir. 1954).

    § 8.01-231. Commonwealth not within statute of limitations.

    No statute of limitations which shall not in express terms apply to the Commonwealth shall be deemed a bar to any proceeding by or on behalf of the same.

    History. Code 1950, § 8-35; 1958, c. 221; 1977, c. 617; 1988, c. 544.

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Adverse Possession, § 49.

    CASE NOTES

    Time does not run against the State. —

    As against the government the bar of the statute of limitations cannot be set up. Time does not run against the State, nor bar the rights of the public. Norfolk & W. Ry. v. Board of Supvrs., 110 Va. 95 , 65 S.E. 531 , 1909 Va. LEXIS 120 (1909); Board of Supvrs. v. Norfolk & W. Ry., 119 Va. 763 , 91 S.E. 124 , 1916 Va. LEXIS 147 (1916) (see also Levasser v. Washburn, 52 Va. (11 Gratt.) 572 (1854); Hurst v. Dulany, 84 Va. 701 , 5 S.E. 802 (1888); Reusen v. Lawson, 91 Va. 226 , 21 S.E. 347 (1895). The cases cited above were decided under former corresponding provisions).

    Unless statute expressly so provides. —

    The statute of limitations does not run against the State unless expressly mentioned. Virginia Hot Springs Co. v. Lowman, 126 Va. 424 , 101 S.E. 326 , 1919 Va. LEXIS 105 (1919) (decided under prior law).

    This section is absolute and unqualified. It makes no distinction between so-called “pure” statutes of limitation (those which time-restrict the availability of a remedy) and “special” limitations (those prescribed by statute as an element of a newly created right). Hence, whether the time limitation prescribed in former § 15.1-552 (now § 15.2-1246 ) is “special” and “jurisdictional” or merely procedural, it does not operate as a bar to any proceeding by or on behalf of the Commonwealth. Commonwealth ex rel. Pross v. Board of Supvrs., 225 Va. 492 , 303 S.E.2d 887, 1983 Va. LEXIS 246 (1983).

    No statute of limitations applies to the commonwealth unless the statute expressly so provides. Barr v. S.W. Rodgers Co., 33 Va. App. 273, 532 S.E.2d 920, 2000 Va. App. LEXIS 608 , different results reached on reh'g, 34 Va. App. 50, 537 S.E.2d 620, 2000 Va. App. LEXIS 852 (2000).

    Legislative intent to exempt must be clear. —

    In light of the policy that surrounds statutes of limitation, the bar of such statutes should not be lifted unless the legislature makes unmistakably clear that such is to occur in a given case. Where there exists any doubt, it should be resolved in favor of the operation of the statute of limitations. Burns v. Board of Supvrs., 227 Va. 354 , 315 S.E.2d 856, 1984 Va. LEXIS 254 (1984).

    Section merely exempts State. —

    The statute of limitations does not affect the validity of a claim but merely sets up a defense to it. The governmental exception does not preserve a right of action, but merely exempts the sovereign from the general defense established. McCloskey & Co. v. Wright, 363 F. Supp. 223, 1973 U.S. Dist. LEXIS 13097 (E.D. Va. 1973) (decided under prior law).

    Immunity of governmental bodies from the statutes of limitation is strictly limited. Burns v. Board of Supvrs., 227 Va. 354 , 315 S.E.2d 856, 1984 Va. LEXIS 254 (1984).

    Agencies included under section if not specifically excluded. —

    Because the legislature specifically excluded two categories of state agencies from the saving grace of this section, it appears that it intended to include other state agencies. Burns v. Board of Supvrs., 227 Va. 354 , 315 S.E.2d 856, 1984 Va. LEXIS 254 (1984).

    Entity created by county is not exempt from statute. —

    A county is not one and the same as the sovereign with regard to the applicability of statutes of limitation. If a county is not entitled to ignore a statute of limitations, an entity created by that county can have no greater authority to do so. Burns v. Board of Supvrs., 227 Va. 354 , 315 S.E.2d 856, 1984 Va. LEXIS 254 (1984).

    County board of supervisors, in its capacity as the governing body of a sanitary district, is not entitled to the benefit of this section. Burns v. Board of Supvrs., 227 Va. 354 , 315 S.E.2d 856, 1984 Va. LEXIS 254 (1984).

    School boards are subject to statutes of limitation, since they are “incorporated” within the meaning of this section. County School Bd. v. Whitlow, 223 Va. 157 , 286 S.E.2d 230, 1982 Va. LEXIS 183 (1982).

    The Richmond Redevelopment and Housing Authority, though a political subdivision of the State, is not one acting for purely governmental purposes, and hence is subject to the bar of the statute of limitations. Richmond Redevelopment & Hous. Auth. v. Laburnum Constr. Corp., 195 Va. 827 , 80 S.E.2d 574, 1954 Va. LEXIS 162 (1954) (decided under prior law).

    Transit authority was instrumentality of Commonwealth and was exempt from statute of limitations. —

    District court incorrectly determined that the transit authority’s action brought pursuant to a written contract against an architectural and engineering firm was barred by Virginia’s statute of limitations; as an agency and instrumentality of the Commonwealth of Virginia, transit authority is exempt from application of the statute of limitations. Delon Hampton & Assocs. v. Washington Metro. Area Transit Auth., 943 F.2d 355, 1991 U.S. App. LEXIS 17765 (4th Cir. 1991).

    Habitual offender proceedings. —

    This section provides that no statute of limitation which shall not in express terms apply to the Commonwealth shall be deemed a bar to any proceeding by or on behalf of the same. Since the Department of Motor Vehicles is not incorporated for charitable or educational purposes, this section is applicable. The Habitual Offender Act contains no such explicit limitation provision and former § 46.1-387.3 (now § 46.2-352) contemplates habitual offender proceedings taking place “more than five years” after the conviction which triggers the proceeding. Therefore, the proceeding is not time-barred by any statute of limitation. Bouldin v. Commonwealth, 4 Va. App. 166, 355 S.E.2d 352, 3 Va. Law Rep. 2231, 1987 Va. App. LEXIS 176 (1987).

    No title by adverse possession can be acquired in a public street. Bellenot v. City of Richmond, 108 Va. 314 , 61 S.E. 785 , 1908 Va. LEXIS 36 (1908) (decided under prior law).

    Action time-barred. —

    Circuit court did not err in finding that a government contractor’s action against its subcontractors was time-barred because subcontracts did not state an intent to create an obligation on the part of the subcontractor to indemnify the contractor, and thus, the right of action accrued upon breach of the performance provisions of the contract; while the statute could provide for the contractor’s ongoing exposure to litigation from an agency, the contract documents did not establish an ongoing “responsibility.” Hensel Phelps Constr. Co. v. Thompson Masonry Contr., Inc., 292 Va. 695 , 791 S.E.2d 734, 2016 Va. LEXIS 166 (2016).

    Statute of limitations not waived. —

    Circuit court did not err in finding that a government contractor’s action was time-barred because no subcontract provision demonstrated sufficient intent to incorporate a waiver of the statute of limitations; even if the prime contract was imposed on the subcontractors, they would not be bound by a statutory waiver of the statute of limitations not incorporated into the subcontracts because § 8.01-231 provided no limitations period could be applicable against the Commonwealth. Hensel Phelps Constr. Co. v. Thompson Masonry Contr., Inc., 292 Va. 695 , 791 S.E.2d 734, 2016 Va. LEXIS 166 (2016).

    § 8.01-232. Effect of promises not to plead statute.

    1. Whenever the failure to enforce a promise, written or unwritten, not to plead the statute of limitations would operate as a fraud on the promisee, the promisor shall be estopped to plead the statute. In all other cases, an unwritten promise not to plead the statute shall be void, and a written promise not to plead such statute shall be valid when (i) it is made to avoid or defer litigation pending settlement of any case, (ii) it is not made contemporaneously with any other contract, and (iii) it is made for an additional term not longer than the applicable limitations period. No provision of this subsection shall operate contrary to subsections B and C.
    2. No acknowledgment or promise by any personal representative of a decedent shall charge the estate of the decedent, revive a cause of action otherwise barred, or relieve the personal representative of his duty to defend under § 64.2-1415 in any case in which but for such acknowledgment or promise, the decedent’s estate could have been protected under a statute of limitations.
    3. No acknowledgment or promise by one of two or more joint contractors shall charge any of such contractors in any case in which but for such acknowledgment another contractor would have been protected under a statute of limitations.
    4. Subsections A and C shall not apply to, limit, or prohibit written promises to waive or not to plead the statute of limitations that are made in, or contemporaneously with, subcontracts of any tier that are related to contracts for construction, construction management, design-build, architecture, or engineering under Chapter 43 (§ 2.2-4300 et seq.) or 43.1 (§ 2.2-4378 et seq.) of Title 2.2; under the policies and procedures adopted by any county, city, or town or school board; under Title 23.1; or under authorizing provisions, policies, or procedures for procurement of such contracts by any public body exempted from the foregoing; however, such waiver or promise not to plead applies only to demands, claims, or actions asserted under such contracts by a public body. As used in this subsection, “subcontract” includes any contract or purchase order to supply labor, equipment, materials, or services to an entity awarded a contract with a public body or to any lower-tier entity performing work provided for in such a contract.

    History. Code 1950, §§ 8-27, 8-28; 1977, c. 617; 2006, c. 278; 2020, cc. 496, 497.

    REVISERS’ NOTE

    Section 8.01-232 combines former §§ 8-27 and 8-28.

    Subsection A adds a proviso to former § 8-27 to codify case law and make explicit the interrelationship between former §§ 8-27 and 8-28. See Soble v. Herman, 175 Va. 489 , 9 S.E.2d 459 (1940); Gwinn v. Farrier, 159 Va. 183 , 165 S.E. 647 (1932). The effect of this subsection is to allow prospective defendants [with the exception of personal representatives and joint contractors who are provided for in subsections B and C] to bind themselves by written promise not to plead the statute of limitations.

    Subsection B incorporates the substance of former § 8-28 with regard to personal representatives’ incapacity to charge a decedent’s estate where the estate could have been protected by pleading the statute of limitations. The language which prohibits the revival of a cause of action otherwise barred is a codification of Brown v. Rice, 76 Va. 629 (1883). The reference to the personal representative’s duty to defend relates this subsection to § 26-5 which imposes personal liability for damage resulting from failure of a fiduciary to plead the applicable statute of limitations.

    Subsection C represents the remaining portion of former § 8-28 which is incorporated without substantial change.

    Editor’s note.

    At the direction of the Virginia Code Commission, the reference to “§ 26-5” was changed to “§ 64.2-1415 ” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

    The 2006 amendments.

    The 2006 amendment by c. 278 substituted the language beginning “be valid when (i)” for “have the effect of a promise to pay the debt or discharge the liability” at the end of the first sentence in subsection A.

    The 2020 amendments.

    The 2020 amendments by cc. 496 and 497 are identical, and in subsection A, deleted “of this section” following “and C” at the end, and added subsection D.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    Michie’s Jurisprudence.

    For related discussion, see 3C M.J. Commercial Law, § 36.

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under corresponding provisions of former law. The terms “the statute of limitations” and “this section,” as used below, refer to former provisions.

    The word “promise” means the obligation of the person liable. Soble v. Herman, 175 Va. 489 , 9 S.E.2d 459, 1940 Va. LEXIS 194 (1940).

    And word “promisor” refers to one legally bound to discharge obligation. —

    The word “promisor” refers to the person making the promise, or to some other person who has become legally bound to discharge the obligation. It does not refer to some third person who ultimately may be benefited by the enforcement of the statute of limitations. Soble v. Herman, 175 Va. 489 , 9 S.E.2d 459, 1940 Va. LEXIS 194 (1940).

    “Fraud” must relate to present or pre-existing fact. —

    “Fraud,” as used in the phrase “would operate as a fraud on the promisee,” must relate to a present or a pre-existing fact and cannot be established by allegation or proof of an unfulfilled, naked, oral promise. This construction of the first sentence is in accord with the clear meaning of the last sentence, and renders entire subsection A reasonably clear. Soble v. Herman, 175 Va. 489 , 9 S.E.2d 459 (1940). But see Tucker v. Owen, 94 F.2d 49 (4th Cir. 1938), wherein the federal court stated that the scope of subsection A should not be restricted by a narrow interpretation of the word “fraud.”.

    Indefinite period of time. —

    When a party intentionally relinquishes its known right to plead the statute of limitations through a contractual waiver, the party implicitly makes a promise that it will refrain from pleading the statute of limitations in the future. Radiance Capital Receivables Fourteen, LLC v. Foster, 298 Va. 14 , 833 S.E.2d 867, 2019 Va. LEXIS 135 (2019).

    Waiver of right to plead statute of limitations. —

    While a promise generally involves an undertaking to do something in the future, a waiver of the right to plead the statute of limitations and a promise not to plead the statute of limitations have the same practical effect; if enforceable, both a waiver of the right to plead the statute of limitations and a promise not to plead the statute of limitations would bar a party from asserting a statute of limitations defense. Radiance Capital Receivables Fourteen, LLC v. Foster, 298 Va. 14 , 833 S.E.2d 867, 2019 Va. LEXIS 135 (2019).

    Not made to avoid or defer litigation. —

    As the waiver of the right to plead the statute of limitations set forth in a guaranty failed to comply with the requirements of the statute, it was not valid under Virginia law; the waiver was made contemporaneously with the guaranty and attempted to waive the right to plead the statute of limitations for an indefinite period of time, and thus it was not made to avoid or defer litigation pending the settlement of any case. Radiance Capital Receivables Fourteen, LLC v. Foster, 298 Va. 14 , 833 S.E.2d 867, 2019 Va. LEXIS 135 (2019).

    Necessity for writing. —

    The second sentence in subsection A, in express terms, places the promise not to plead the statute of limitations on the same plane as a promise to pay the debt; that is, such promises must be in writing to be enforceable. Soble v. Herman, 175 Va. 489 , 9 S.E.2d 459, 1940 Va. LEXIS 194 (1940).

    Meaning of “could have been protected”. —

    The use of the words “could have been protected” does not imply that the limiting clause in this section relates to the time of the promise by the personal representative. The clause should not be construed as if it read “could have been protected at the time the promise was made.” It would appear that the General Assembly merely loosely used “could have been” for “can be” or “could be,” or that they viewed the section as speaking at a time subsequent to that at which a promise in question was made, rather than at the time of the enactment of the section. Gwinn v. Farrier, 159 Va. 183 , 165 S.E. 647 , 1932 Va. LEXIS 182 (1932).

    Subsection A not extended to promises by personal representatives or beneficiaries of decedents’ estates. —

    To extend the words “promise” and “promisor” to include administrators, executors, heirs, distributees, devisees and legatees, would tend to cause delay and create confusion in the speedy and orderly administration of estates and, to some extent, would be in conflict with the construction that has been uniformly placed upon the provisions of §§ 11-2 and 26-5 and subsection A. Soble v. Herman, 175 Va. 489 , 9 S.E.2d 459, 1940 Va. LEXIS 194 (1940).

    Estoppel from pleading the statute. —

    As an assignee relied solely on the breach of the statute of limitations waiver without providing any additional evidence to establish that the guarantors did not intend to comply with the waiver when they executed the guaranty, the guarantors were not estopped from pleading the statute of limitations; the unfulfilled promises of the guarantors not to plead the statute of limitations were insufficient in themselves to support an allegation of fraud. Radiance Capital Receivables Fourteen, LLC v. Foster, 298 Va. 14 , 833 S.E.2d 867, 2019 Va. LEXIS 135 (2019).

    Policy of subsection B is that the estate shall be protected against promises made by a personal representative to pay debts of his decedent, because in most instances he has no personal knowledge of the transaction, and in many instances may make mistaken concessions or agreements which he ought not to make or would not make if he were fully informed with reference to the transaction. St. Joseph's Soc'y v. Virginia Trust Co., 175 Va. 503 , 9 S.E.2d 304, 1940 Va. LEXIS 195 (1940).

    Promise made after the bar of the statute has fallen, or an oral promise upon which the promisee does not rely, would be covered by the second sentence of subsection A, and therefore be ineffective. Tucker v. Owen, 94 F.2d 49, 1938 U.S. App. LEXIS 4805 (4th Cir. 1938).

    Debt barred by statute of limitations at death of debtor cannot be revived by the promise of the personal representative to pay it. Brown v. Rice, 67 Va. (26 Gratt.) 467, 1875 Va. LEXIS 31 (1875); Brown v. Rice, 76 Va. 629 , 1882 Va. LEXIS 65 (1882); Smith v. Pattie, 81 Va. 654 , 1886 Va. LEXIS 132 (1886).

    Subsection B applies whether promise made before or after debt is barred. —

    The true construction of subsection B is this: No acknowledgment of, or promise to pay, or part payment on a debt of a decedent made by his personal representative, either before or after the debt is barred, shall operate to take it out of the statute of limitations. Gwinn v. Farrier, 159 Va. 183 , 165 S.E. 647 , 1932 Va. LEXIS 182 (1932); St. Joseph's Soc'y v. Virginia Trust Co., 175 Va. 503 , 9 S.E.2d 304, 1940 Va. LEXIS 195 (1940).

    Application of section to renewal of notes. —

    In a suit for the purpose of ascertaining debts and liabilities of a testator’s estate, appellant alleged that the estate was indebted to it, as evidenced by a negotiable note executed by the executor of the estate. The note in issue was a renewal of a note executed by the testator, which had been renewed at intervals of six months by the executor for a period of five years from the time of his qualification, although § 64.1-143 [now see § 64.2-518 ] permits such renewals only for a period of two years from the time of qualification. It was held that the debt was barred by this section. St. Joseph's Soc'y v. Virginia Trust Co., 175 Va. 503 , 9 S.E.2d 304, 1940 Va. LEXIS 195 (1940).

    Promise by copartner cannot revive debt. —

    One partner cannot as against his copartner revive an old obligation, which is barred by the statute of limitations. Davis v. Poland, 92 Va. 225 , 23 S.E. 292 , 1895 Va. LEXIS 108 (1895) (see also Woodson v. Wood, 84 Va. 478 , 5 S.E. 277 (1888)).

    § 8.01-233. When action deemed brought on counterclaim or cross-claim; when statute of limitations tolled; defendant’s consent required for dismissal.

    1. A defendant who pleads a counterclaim or cross-claim shall be deemed to have brought an action at the time he files such pleading.
    2. If the subject matter of the counterclaim or cross-claim arises out of the same transaction or occurrence upon which the plaintiff’s claim is based, the statute of limitations with respect to such pleading shall be tolled by the commencement of the plaintiff’s action.

    History. Code 1950, § 8-244; 1954, c. 611; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-233 is substantially former § 8-244. Subsection B provides for relation back to the time when a plaintiff’s claim is filed of a cross-claim which arises out of the same transaction upon which the plaintiff’s claim is based, thereby giving the same treatment to cross-claims as was given to counterclaims under the former statute.

    The final sentence of former § 8-244 prohibited the plaintiff from dismissing his action without defendant’s consent after a defendant counterclaimed. This provision has been amended and is relocated in § 8.01-380 .

    Cross references.

    For rules of court as to counterclaims and cross-claims, see Rules 3:9 and 3:10.

    Michie’s Jurisprudence.

    For related discussion, see 3C M.J. Commercial Law, § 33.

    CASE NOTES

    This section would seem to require some physical injury to plaintiff’s property before suit may be maintained in absence of privity. Bryant Elec. Co. v. City of Fredericksburg, 762 F.2d 1192, 1985 U.S. App. LEXIS 31288 (4th Cir. 1985).

    Appeal from improper dismissal of defendant against whom cross-claim filed. —

    When an order of nonsuit improperly dismisses a party defendant against whom a valid cross-claim has been duly filed, effectively time-barring the cause of action set forth in the cross-claim, such order is a final, appealable judgment as to the cross-claimant. Iliff v. Richards, 221 Va. 644 , 272 S.E.2d 645, 1980 Va. LEXIS 286 (1980).

    Defendant’s counterclaim did not arise out of the same transaction or occurrence where the issues of fact and law in the complaint and counterclaims were not largely the same; proof of defendant’s counterclaims required separate evidence than proof of plaintiff’s complaint and principles of res judicata would not bar a subsequent suit on the counterclaims because the proof and issues raised by the counterclaim were unrelated to the proof and issues raised by the complaint. Unlimited Screw Prods., Inc. v. Malm, 781 F. Supp. 1121, 1991 U.S. Dist. LEXIS 19023 (E.D. Va. 1991).

    Defendant’s counterclaim arising from the same transaction or occurrence. —

    While § 8.01-243 provides that the statute of limitations for a personal injury claim is two years after accrual of the cause of action and § 8.01-230 provides that a cause of action accrues on the date the injury was sustained, and the correctional officer’s cause of action accrued on August 22, 1999, nevertheless, his filing of a counterclaim on September 21, 2001, was timely because the inmate filed his 42 U.S.C.S. § 1983 cause of action on May 4, 2001, and pursuant to § 8.01-233 B the statute of limitations on the officer’s claim was tolled by the commencement of the inmate’s case since the counterclaim arose out of the same occurrence as the inmate’s claim. Douglas v. McCarty, 87 Fed. Appx. 299, 2003 U.S. App. LEXIS 23585 (4th Cir. 2003).

    § 8.01-234. Repeal of limitation not to remove bar of statute.

    If, after a right of action or remedy is barred by a statute of limitations, the statute be repealed, the bar of the statute as to such right or remedy shall not be deemed to be removed by such repeal.

    History. Code 1950, § 8-36; 1977, c. 617.

    Cross references.

    As to the effect of repeal of statutes generally, see §§ 1-239 and 1-240 and notes.

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Limitation of Actions, § 3.

    CASE NOTES

    Virginia’s policy favoring prospective application of statutes of limitations is codified both in this section and § 8.01-256 . This section provides that an action barred by a statute of limitations is not revived by repeal of that limitation provision. Section 8.01-256 provides that the 1977 amendments to the limitation provisions are inapplicable to any cause of action that accrued prior to the effective date of those amendments. Saunders v. H.K. Porter Co., 643 F. Supp. 198, 1986 U.S. Dist. LEXIS 22070 (E.D. Va. 1986), rev'd, 843 F.2d 815, 1988 U.S. App. LEXIS 4428 (4th Cir. 1988).

    Section prescribes rule different from that of United States Supreme Court. —

    By this section it was intended to prescribe a rule different from that declared by the Supreme Court of the United States in Campbell v. Holt, 115 U.S. 620, 6 S. Ct. 209, 29 L. Ed. 483 (1885), that a debtor has no vested right in a bar interposed to the collection of his debt, and that the bar may be removed by repeal of the statute as to debts upon which limitations have already run. Kesterson v. Hill, 101 Va. 736 , 101 Va. 739 , 45 S.E. 288 , 1903 Va. LEXIS 81 (1903) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Claim not barred. —

    Negligent infliction of emotional harm claim in an employee’s amended complaint related back to the date of the original complaint under § 8.01-6.1 , and was not time-barred because the original complaint contained an intentional infliction claim, and thus the amendment was not a new substantive cause of action; the employee was reasonably diligent in asserting his claim and no prejudice was shown by allowing the amendment. Ballard v. Hanover Research Council, 2010 Va. Cir. LEXIS 110 (Fairfax County Sept. 24, 2010).

    § 8.01-235. Bar of expiration of limitation period raised only as affirmative defense in responsive pleading.

    The objection that an action is not commenced within the limitation period prescribed by law can only be raised as an affirmative defense specifically set forth in a responsive pleading. No statutory limitation period shall have jurisdictional effects and the defense that the statutory limitation period has expired cannot be set up by demurrer. This section shall apply to all limitation periods, without regard to whether or not the statute prescribing such limitation period shall create a new right.

    History. 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-235 requires that any statute of limitations must be pleaded as an affirmative defense by the party claiming its benefit. As to statutorily created rights unknown to common law, e.g., wrongful death actions, this changes case law which required the party asserting such a right to plead that he had brought the action within the limitation period. To this extent the section therefore repeals Branch v. Branch, 172 Va. 413 , 2 S.E.2d 327 (1939).

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Demurrers, § 22.

    CASE NOTES

    This section is merely a procedural statute governing the manner of pleading statutes of limitation. Harper v. City Council, 220 Va. 727 , 261 S.E.2d 560, 1980 Va. LEXIS 160 (1980).

    Statute of limitations defense to be heard by jury. —

    Distributor had not waived its statute of limitations defense and was entitled to present its theory to the jury because it specifically set forth in a responsive pleading its defense of the statute of limitations; since the customer’s demand for a trial by jury did not specify any limits on the issues on which a jury trial was requested, the distributor had no obligation to make an additional demand. Ferguson Enters., Inc. v. F.H. Furr Plumbing, Heating & Air Conditioning, Inc., 297 Va. 539 , 830 S.E.2d 917, 2019 Va. LEXIS 87 (2019).

    Distributor was entitled to have its statute of limitations defense heard by a jury especially where the issue was initially presented to the trial judge for decision, and the judge declined to decide the matter because evidence was required. Ferguson Enters., Inc. v. F.H. Furr Plumbing, Heating & Air Conditioning, Inc., 297 Va. 539 , 830 S.E.2d 917, 2019 Va. LEXIS 87 (2019).

    Distributor was not required to file an additional demand for a trial by jury because its customer had already demanded a jury trial as to all issues, and the distributor was entitled to rely upon the demand for a jury trial made by the customer as to all issues in controversy between them; the statutes do not require duplicate jury demands to preserve the right to a trial by jury. Ferguson Enters., Inc. v. F.H. Furr Plumbing, Heating & Air Conditioning, Inc., 297 Va. 539 , 830 S.E.2d 917, 2019 Va. LEXIS 87 (2019).

    Effect upon prior law. —

    According to its plain terms, this section deals with the manner in which reliance on limitation periods must be asserted in responsive pleadings. It does not abolish the substantive distinction heretofore recognized between a “pure” and “special” statute of limitation. Prior law has been changed only to the extent that a distinction in pleading had been premised on the theory that “special” statutes of limitation were jurisdictional in effect. Harper v. City Council, 220 Va. 727 , 261 S.E.2d 560, 1980 Va. LEXIS 160 (1980).

    Failure to plead contractual limitations period. —

    Two-year limitation period in a policy of insurance was an affirmative defense that was waived under Fed. R. Civ. P. 81(c), by defendant insurer’s failure to raise it as an affirmative defense when plaintiff insured’s state court action was removed to federal court, thus, while the district court was correct in granting the insured’s motion for summary judgment, the district court incorrectly applied §§ 8.01-235 , 8.01-243 and 8.01-246 , which had no application, because in Virginia contractual and statutory limitations were not the same, and the federal rules applied in the removed action. S. Wallace Edwards & Sons, Inc. v. Cincinnati Ins. Co., 353 F.3d 367, 2003 U.S. App. LEXIS 26267 (4th Cir. 2003).

    CIRCUIT COURT OPINIONS

    Failure to raise untimeliness of cross bill. —

    Although a life tenant’s cross bill seeking to impeach a decedent’s will was untimely, the untimeliness of that claim was not considered by the court because it was not raised as a defense in an executrix’s pleadings. Adair v. Kuhn, 64 Va. Cir. 364, 2004 Va. Cir. LEXIS 62 (Spotsylvania County Apr. 12, 2004).

    Proper pleading. —

    First worker’s demurrer to the truck driver’s second amended motion for judgment that claimed that damages the first worker caused the truck driver to incur to the truck driver’s rented truck could not be recovered due to the applicable statute of limitations had to be rejected, as a demurrer was not a proper pleading by which to raise the affirmative defense of the running of the statute of limitations; rather, such a defense had to be raised as an affirmative defense in a responsive pleading. Laguna v. Wallace, 67 Va. Cir. 535, 2004 Va. Cir. LEXIS 358 (Loudoun County Aug. 4, 2004).

    Because a defendant properly pleaded a statute of limitations defense, and pursuant to § 8.01-281 and Va. Sup. Ct. R. 4:13(8) ruling on a plea at bar did not have to be deferred until the date of trial, the plaintiff’s petition for declaratory judgment under § 8.01-191 was dismissed. Trivedi v. Pansuria, 72 Va. Cir. 220, 2006 Va. Cir. LEXIS 196 (Chesterfield County Nov. 3, 2006).

    Whether a statute of limitation provision barred recovery in a husband’s defamation action against a church was reserved where the parties’ pleadings did not state when the church’s pastor made the allegedly defamatory remarks to the husband’s wife. The husband’s cause of action accrued and the statute of limitations began to run on the date when the pastor first made the statements to the wife. Cuthrell v. McKeller, 73 Va. Cir. 386, 2007 Va. Cir. LEXIS 205 (Norfolk June 28, 2007).

    While it is certainly preferable that pleadings set forth the dates of alleged conduct (when known) to avoid additional discovery expenses, this is not required. The statute of limitations is an affirmative defense and as such alleging the date of the specific actions, though preferable, is not required for valid pleadings. Johnson Senior Ctr. v. Dolan, 97 Va. Cir. 76, 2017 Va. Cir. LEXIS 306 (Amherst County Oct. 11, 2017).

    Managers’ demurrer was denied because the facts alleged in a corporation’s complaint gave the managers notice of the claim; the corporation’s pleadings alleged that its records were and had been in the possession of the managers, and the alleged unauthorized financial charges were described with enough particularity that the managers could be able to identify them in the financial accounts. Johnson Senior Ctr. v. Dolan, 97 Va. Cir. 76, 2017 Va. Cir. LEXIS 306 (Amherst County Oct. 11, 2017).

    Time limitation. —

    Subsection H of § 8.01-229 , like the similar provisions in § 8.01-235 , operates with respect to the commencement of an action, not the separate independent requirement of the filing of a notice of lis pendens within the 10-year period as required by subsection C of § 8.01-251 . United Leasing Corp. v. Lacey, 101 Va. Cir. 402, 2013 Va. Cir. LEXIS 222 (Westmoreland County Jan. 16, 2013).

    Demurrer. —

    Statute plainly states that the defense that the statutory limitation period has expired cannot be set up by demurrer; therefore, the court did not consider defendants’ demurrer to the statute of limitations. Joyner v. Colonial Heights Operations, L.L.C., 108 Va. Cir. 240, 2021 Va. Cir. LEXIS 140 (Petersburg June 24, 2021).

    Although employers’ demurred to a terminated employee’s charges of defamation by arguing that the statute of limitations barred the employee’s claim, the violation of the statute of limitations was to be raised as an affirmative defense in a responsive pleading and was not be set up by demurrer. Accordingly, the denial of the demurrer was appropriate because the issue of statute of limitations was not properly before the court. Foster v. Fraternal Order of Eagles, 2021 Va. Cir. LEXIS 200 (Rockingham County Aug. 19, 2021).

    Plea in bar. —

    Because § 8.01-235 addresses only the commencement of an action, it has no application to the filing of the notice of lis pendens required in subsection C of § 8.01-251 ; thus, a grantee and lender did not waive the right to file a plea in bar due to any waiver and could not assert the 10-year limitation for commencing the suit to enforce a judgment lien as an affirmative defense in their answers because the judgment creditor filed the action within the statute of limitations. United Leasing Corp. v. Lacey, 101 Va. Cir. 402, 2013 Va. Cir. LEXIS 222 (Westmoreland County Jan. 16, 2013).

    Article 2. Limitations on Recovery of Realty and Enforcement of Certain Liens Relating to Realty.

    § 8.01-236. Limitation of entry on or action for land.

    No person shall make an entry on, or bring an action to recover, any land unless within fifteen years next after the time at which the right to make such entry or bring such action shall have first accrued to such person or to some other person through whom he claims; provided that an action for unlawful entry or detainer under § 8.01-124 shall be brought within three years after such entry or detainer.

    History. Code 1950, § 8-5; 1954, c. 604; 1977, c. 617; 1978, c. 471.

    Cross references.

    As to who may bring action of ejectment, see § 8.01-132 .

    As to further time allowed persons under disability, see § 8.01-237 .

    As to effect of copy and certificate of unsigned land grant on adverse possession, see § 41.1-7 .

    As to limitation of action against person in possession of lands by reentry, see § 55.1-1428 .

    Law Review.

    For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973).

    For survey of Virginia law on property for the year 1974-1975, see 61 Va. L. Rev. 1834 (1975).

    For annual survey article, “Wills, Trusts, and Estates,” see 46 U. Rich. L. Rev. 243 (2011).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Adverse Possession, §§ 2, 17.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Elements. —

    To establish title to land by adverse possession it is necessary to show actual, hostile, exclusive, visible and continuous possession for the statutory period of 15 years. McIntosh v. Chincoteague Volunteer Fire Co., 220 Va. 553 , 260 S.E.2d 457, 1979 Va. LEXIS 296 (1979).

    Adverse possession of child as against parent. —

    As a general rule, adverse possession cannot arise from possession of a child as against his parent. In order to establish adverse possession in such a case, the owner must have had some “clear, definite, or unequivocal notice” of the child’s intention to assert exclusive ownership, and the character of the possession is a jury question. McIntosh v. Chincoteague Volunteer Fire Co., 220 Va. 553 , 260 S.E.2d 457, 1979 Va. LEXIS 296 (1979).

    B.Dower.

    Dower was an interest in land for which a right of entry exists in favor of a widow under Virginia law. Devers v. Chateau Corp., 748 F.2d 902, 1984 U.S. App. LEXIS 16567 (4th Cir. 1984).

    Section applicable to action to insure dower rights. —

    The 15-year statute of limitations applied to an action to insure the dower rights of a widow. Devers v. Chateau Corp., 748 F.2d 902, 1984 U.S. App. LEXIS 16567 (4th Cir. 1984).

    Existence of equitable remedy for exercise of dower did not affect limitation period. —

    A widow could exercise her dower rights either at law or in equity. The fact that an equitable remedy exists in addition to a legal remedy did not mean that the statute of limitations for entry to land did not apply. Devers v. Chateau Corp., 748 F.2d 902, 1984 U.S. App. LEXIS 16567 (4th Cir. 1984).

    C.Requisites for Adverse Possession.

    Adverse possession requires that the acts relied upon must have been actual, continuous, exclusive, hostile, open and notorious and accompanied by a claim of right for the statutory period. Payne v. Consolidation Coal Co., 607 F. Supp. 378, 1985 U.S. Dist. LEXIS 21180 (D. Va. 1985).

    Occupancy must be hostile. —

    Trial court erred in finding the possessor’s of real property did not demonstrate hostile possession in their adverse possession claim because the hostile character of the owners’ possession was not undercut by the fact that they mistakenly believed the land was theirs. Quatannens v. Tyrrell, 268 Va. 360 , 601 S.E.2d 616, 2004 Va. LEXIS 124 (2004).

    It is well established that a claimant’s possession is “hostile” if it is under a claim of right and adverse to the right of the true owner. Kim v. Douval Corp., 259 Va. 752 , 529 S.E.2d 92, 2000 Va. LEXIS 79 (2000), limited, Quatannens v. Tyrrell, 268 Va. 360 , 601 S.E.2d 616, 2004 Va. LEXIS 124 (2004).

    A claim of right can be inferred from unequivocal conduct that is inconsistent with any other reasonable inference. Kim v. Douval Corp., 259 Va. 752 , 529 S.E.2d 92, 2000 Va. LEXIS 79 (2000), limited, Quatannens v. Tyrrell, 268 Va. 360 , 601 S.E.2d 616, 2004 Va. LEXIS 124 (2004).

    Inference of claim of right question for jury. —

    Whether the conduct relied upon to support an inference of a claim of right is sufficient to establish such a claim is generally a question for the jury. Kim v. Douval Corp., 259 Va. 752 , 529 S.E.2d 92, 2000 Va. LEXIS 79 (2000), limited, Quatannens v. Tyrrell, 268 Va. 360 , 601 S.E.2d 616, 2004 Va. LEXIS 124 (2004).

    Intent to use land to exclusion of others. —

    The phrase “claim of right,” when used in the context of adverse possession, refers to the intent of a claimant to use land as the claimant’s own to the exclusion of all others; the existence of a claim of right does not depend on the claimant having any actual title or right to the property. Kim v. Douval Corp., 259 Va. 752 , 529 S.E.2d 92, 2000 Va. LEXIS 79 (2000), limited, Quatannens v. Tyrrell, 268 Va. 360 , 601 S.E.2d 616, 2004 Va. LEXIS 124 (2004).

    Entry with permission of owner. —

    Where the original entry on another’s land was by agreement or permission, possession regardless of its duration presumptively continues as it began, in the absence of an explicit disclaimer. Kim v. Douval Corp., 259 Va. 752 , 529 S.E.2d 92, 2000 Va. LEXIS 79 (2000), limited, Quatannens v. Tyrrell, 268 Va. 360 , 601 S.E.2d 616, 2004 Va. LEXIS 124 (2004).

    The terms claim of right, claim of title and claim of ownership mean the intention of an adverse possessor to take the land and use it as his own. The terms do not imply any claim of actual title or right. Payne v. Consolidation Coal Co., 607 F. Supp. 378, 1985 U.S. Dist. LEXIS 21180 (D. Va. 1985).

    Jury instruction must include statutory period. —

    District court did not err when it refused to adopt an instruction defendants proposed on adverse possession that did not make reference to the time a person had to possess property under § 8.01-236 before he acquired title by adverse possession, at the close of the Government’s case charging defendants with violating 18 U.S.C.S. §§ 1341, 1343, and 317 by selling timber rights to property before they acquired title to the property and by claiming that they acquired title by adverse possession. United States v. Turgeon, 149 Fed. Appx. 144, 2005 U.S. App. LEXIS 19731 (4th Cir. 2005).

    Period of adverse possession. —

    Trial court did not err in ruling that a family had not met their burden of proving adverse possession or prescription as they did not prove by clear and convincing evidence that they had asserted an adverse claim to ownership of the riparian rights for the requisite period of time. While the family’s ownership of a pavilion on the river constituted an actual and hostile assertion of the right to occupy the riparian area between 1989 and 2003, they did not show that they continued to exert actual control over the riparian area after the hurricane destroyed the pavilion and, thus, could not show that they met each of the requirements for adverse possession for the mandatory period of fifteen years in § 8.01-236 . Scott v. Burwell's Bay Improvement Ass'n, 281 Va. 704 , 708 S.E.2d 858, 2011 Va. LEXIS 91 (2011).

    Time that statutory period commences. —

    Pursuant to § 8.01-236 , where co-tenants did not raise an issue at trial or in their assignments of error pursuant to Va. Sup. Ct. R. 5:25 and 5:17 as to the time that the statutory period for adverse possession commenced, it was assumed that the time period against the co-tenants’ interests in the property commenced when other owners took exclusive possession of the property. Harkleroad v. Linkous, 281 Va. 12 , 704 S.E.2d 381, 2011 Va. LEXIS 14 (2011).

    Tacking. —

    “Tacking” allows successive adverse users in privity with prior adverse users to aggregate the two adverse periods. However, tacking is prohibited if the prior owner abandons the premises. United States v. Tobias, 899 F.2d 1375, 1990 U.S. App. LEXIS 7027 (4th Cir. 1990).

    Once adverse claimant vacates, owner is in constructive possession. —

    Virginia follows the rule that once the adverse claimant vacates the premises, the owner, by reason of his legal title, will be regarded as in constructive possession and the adverse period of the claimant is at an end. United States v. Tobias, 899 F.2d 1375, 1990 U.S. App. LEXIS 7027 (4th Cir. 1990).

    Burden of proof. —

    The claimant bears the burden of proving the elements of adverse possession by clear and convincing evidence. Kim v. Douval Corp., 259 Va. 752 , 529 S.E.2d 92, 2000 Va. LEXIS 79 (2000), limited, Quatannens v. Tyrrell, 268 Va. 360 , 601 S.E.2d 616, 2004 Va. LEXIS 124 (2004).

    Elements sufficiently established. —

    Co-tenants established their claim to adverse possession of property pursuant to § 8.01-236 against other co-tenants, where they provided sufficient clear and convincing evidence of the elements, including hostile possession; they showed that for more than 15 years, they improved and maintained the property, paid property taxes, and leased the property to tenants who were in open occupation. Harkleroad v. Linkous, 281 Va. 12 , 704 S.E.2d 381, 2011 Va. LEXIS 14 (2011).

    The claimants had not sufficiently established that they continuously possessed the property where the evidence is unclear where possession and use took place and whether the acts were connected with use of the disputed or undisputed parcels and where many of the uses of the disputed parcels during the period in question were intermittent and sporadic. Calhoun v. Woods, 246 Va. 41 , 431 S.E.2d 285, 9 Va. Law Rep. 1425, 1993 Va. LEXIS 83 (1993).

    Prescriptive easements compared. —

    Because the owners failed to prove the boundaries of their dominant estate, a chancellor was unable to tailor the final decree to restrict it to the property to which the easement had, historically, been appurtenant; the result unlawfully increased the burden of the easement upon the neighbors’ servient estates to an unknown extent. Ellis v. Simmons, 270 Va. 371 , 619 S.E.2d 88, 2005 Va. LEXIS 80 (2005).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    The cases cited below were decided under corresponding provisions of former law. The terms “the statute of limitations,” “this statute,” and “this section,” as used below, refer to former provisions.

    The ruling purpose and policy of this statute, which must be looked to in determining its true meaning and effect, is to give stability to land titles. McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918).

    The statute is a personal defense. —

    As a general rule the plea of the statute of limitations is a personal defense to be made only by the party against whom the demand is asserted, and can only be waived by him if he desires to do so. Clayton v. Hensley, 73 Va. (32 Gratt.) 65, 1879 Va. LEXIS 47 (1879); Smith v. Hutchinson, 78 Va. 683 , 1884 Va. LEXIS 41 (1884); McCartney v. Tyrer, 94 Va. 198 , 26 S.E. 419 , 1897 Va. LEXIS 63 (1897).

    It is applied in equity. —

    This section will be applied in equity when a suit is brought for land, and for an account of the rents and profits. Drumright v. Hite, 26 S.E. 583 , 1897 Va. LEXIS 151 (Va. 1897) (see also Preston v. Preston, 95 U.S. 200, 24 L. Ed. 494 (1877)).

    The effect of this section cannot be avoided by resorting to a chancery suit. McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918).

    B.Requisites for Adverse Possession.
    1.In General.

    Adverse possession must be actual, exclusive, hostile, open and notorious, accompanied by a bona fide claim of title against that of all other persons, and it must be continued for the period of the statutory bar. Williams v. Snidow, 31 Va. (4 Leigh) 14, 1832 Va. LEXIS 28 (1832); Creekmur v. Creekmur, 75 Va. 430 , 1881 Va. LEXIS 25 (1881); Hollingsworth v. Sherman, 81 Va. 668 , 1885 Va. LEXIS 30 (1885); Chapman v. Chapman, 91 Va. 397 , 21 S.E. 813 , 1895 Va. LEXIS 37 (1895); Drumright v. Hite, 26 S.E. 583 , 1897 Va. LEXIS 151 (Va. 1897); Yellow Poplar Lumber Co. v. Thompson, 108 Va. 612 , 62 S.E. 358 , 1908 Va. LEXIS 75 (1908); Fleming v. Lockhart, 171 Va. 127 , 198 S.E. 489 , 1938 Va. LEXIS 264 (1938); Walton v. Rosson, 216 Va. 732 , 222 S.E.2d 553, 1976 Va. LEXIS 194 (1976).

    The contention that the United States had gained such title by adverse possession under this section as to extinguish an easement of access to a highway was untenable, where the position of the government had not been adverse in the sense that it had been open, notorious, hostile, inconsistent with the easement, and maintained with the intention to hold adversely. Nothing else will give good title by adverse possession under the Virginia decisions. United States v. Belle View Apts., 217 F.2d 636, 1954 U.S. App. LEXIS 3170 (4th Cir. 1954).

    To work a disseisin or ouster of the owner of land, it is not sufficient to set up a mere claim or color of title. The acts relied on must show actual, hostile, exclusive and continuous possession for the period of the statutory bar; acts of such notoriety that the true owner has actual knowledge, or may be presumed to know, of the adverse claim. Leake v. Richardson, 199 Va. 967 , 103 S.E.2d 227, 1958 Va. LEXIS 149 (1958).

    The acts relied upon to establish ownership by adverse possession must show actual, hostile, exclusive, visible and continuous possession for the statutory period of 15 years. Peck v. Daniel, 212 Va. 265 , 184 S.E.2d 7, 1971 Va. LEXIS 345 (1971).

    Holding must be such as to give notice that seisin is molested. —

    To effect a disseisin the holding must be actual and hostile occupation of the land for the statutory period that is calculated to give notice that the seisin is molested. LaDue v. Currell, 201 Va. 200 , 110 S.E.2d 217, 1959 Va. LEXIS 212 (1959).

    The character of the acts necessary to vest one with a title by adverse possession varies with the nature of the property involved, the conditions surrounding it and the use to which the property may be adapted. Leake v. Richardson, 199 Va. 967 , 103 S.E.2d 227, 1958 Va. LEXIS 149 (1958); Walton v. Rosson, 216 Va. 732 , 222 S.E.2d 553, 1976 Va. LEXIS 194 (1976).

    Corporeal and incorporeal rights. —

    In principle, there is no great difference as to the acquisition of rights whether they be corporeal or incorporeal, except as the statute of limitations introduces the difference. The tests as regards adverse possession are equally applicable to the acquisition of prescriptive rights. The possession of the claimant must be adverse under a claim of right, exclusive, continuous, uninterrupted and with a knowledge and acquiescence of the owner of the estate in, over or out of which the right is claimed. Leake v. Richardson, 199 Va. 967 , 103 S.E.2d 227, 1958 Va. LEXIS 149 (1958).

    Cutting timber does not constitute adverse possession. —

    Merely cutting and selling timber from the disputed land, at widely separated intervals, does not constitute adverse possession. Craig-Giles Iron Co. v. Wickline, 126 Va. 223 , 101 S.E. 225 , 1919 Va. LEXIS 89 (1919) (see also Pasley v. English, 46 Va. (5 Gratt.) 141 (1848); Anderson v. Harvey, 51 Va. (10 Gratt.) 386 (1853)).

    Nor does grazing cattle. —

    The mere fact that plaintiff’s cattle, and those of plaintiff’s predecessor in title had from time to time during many years roamed over the disputed marsh land, when it was not covered by water at high tide, did not call for or warrant the giving of an instruction with respect to adverse possession. Whealton v. Doughty, 112 Va. 649 , 72 S.E. 112 , 1911 Va. LEXIS 132 (1911).

    Nor making surveys. —

    A junior patentee visited the county where the lands in dispute were situated, and employed an agent to enter upon and survey the tract in question and various other tracts claimed by him in that county. The agent employed a surveyor and chain carriers, who went upon the tract and surveyed and remarked it for the junior patentee. It was held that these facts would not have warranted the jury in finding an ouster of the senior patentee and a seisin in the junior. Dawson v. Watkins, 41 Va. (2 Rob.) 259, 1843 Va. LEXIS 31 (1843).

    When no adverse possession of wild and uncultivated land. —

    While lands remain uncleared, or in a state of nature, they are not susceptible of adverse possession against the older patentee, unless by acts of ownership effecting a change in their condition. To constitute adverse possession there must be occupancy, cultivation, improvement or other open, notorious and habitual acts of ownership. Turpin v. Saunders, 73 Va. (32 Gratt.) 27, 1879 Va. LEXIS 44 (1879); Harmon v. Ratliff, 93 Va. 249 , 24 S.E. 1023 , 1896 Va. LEXIS 71 (1896); City of Richmond v. Jones, 111 Va. 214 , 68 S.E. 181 , 1910 Va. LEXIS 28 (1910).

    Nor of tidal lands. —

    If the tide ebbs and flows over property, it is doubtful whether a title by adverse possession can be acquired to it, separate and distinct from the rights of the riparian owner. And the principle that in order to acquire title by adverse possession to wild lands, there must be some change in their physical condition as a visible evidence of occupation and ownership would seem to apply with equal if not greater force to land under water, subject to the ebb and flow of the tide, upon which it is difficult, if not impossible, to erect any visible and permanent evidence of occupation. Austin v. Minor, 107 Va. 101 , 57 S.E. 609 , 1907 Va. LEXIS 18 (1907).

    2.Possession for Statutory Period.

    Owner must have right of entry or cause of action. —

    The statute of limitations does not begin to run against an owner of any real estate or of any interest therein until such owner has the right to “make an entry on, or bring an action to recover” the land. Hubbard v. Davis, 181 Va. 549 , 25 S.E.2d 256, 1943 Va. LEXIS 203 (1943).

    Possession must give rise to cause of action. —

    Adverse possession to constitute title must be such an invasion of the rights of another as will give that other a cause of action, and the latter must fail to institute his action within the time prescribed by the statute in order to confer title on the adverse holder. In other words, he must be negligent in the enforcement of his rights. It is only as to such persons that the title so acquired is good, and only when the rights of all persons are thus barred is the title perfect. McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918).

    Statute begins to run when cause of action accrues. —

    Statutes of limitations governing actions for land adversely possessed will not begin to run until the claimant takes possession in fact, under color of title or claim of right where such requirements prevail, and a cause of action therefor accrues. Marion Inv. Co. v. Virginia Lincoln Furn. Corp., 171 Va. 170 , 198 S.E. 508 , 1938 Va. LEXIS 270 (1938).

    What statute applies. —

    The period of time necessary to ripen possession, under claim of right, into complete title, is determined by the limitations provided by law when the plaintiff’s right of action first accrued. Hollingsworth v. Sherman, 81 Va. 668 , 1885 Va. LEXIS 30 (1885).

    Effect of undelivered deed of trust. —

    In an action of ejectment, the disputed property was sold under a deed of trust. The sale was confirmed, the purchase price paid and possession taken by the purchasers, but no deed was delivered until 10 years later, after which plaintiff acquired title from the purchasers. Plaintiff conceded that defendant had been in actual possession of the land for more than the 10 (now 15) years required by this section, but contended that the statute did not commence to run against the purchasers at the judicial sale until they actually obtained their deed, three years before suit was instituted. It was held that, since the purchasers were in a position, upon confirmation of the sale, to protect their title and interest by appropriate action, the statute of limitations began to run against them from the time they were entitled to the deed. Marion Inv. Co. v. Virginia Lincoln Furn. Corp., 171 Va. 170 , 198 S.E. 508 , 1938 Va. LEXIS 270 (1938).

    Lands acquired pursuant to federal statute. —

    Where records disclosed (1) that since November 4, 1918, the United States government, pursuant to statute, had been continuously in possession of the lands described in the complaint, claiming fee-simple title thereto, (2) that almost 30 years had elapsed between that date and the institution of an action to recover possession of the lands, and (3) that more than 15 years had elapsed since the decree in a prior suit to quiet title, resulting in favor of the government, the action was barred by this section. Ellis v. Cates, 88 F. Supp. 19, 1949 U.S. Dist. LEXIS 1867 (D. Va.), aff'd, 178 F.2d 791, 1949 U.S. App. LEXIS 2585 (4th Cir. 1949).

    Right of infant to disaffirm conveyance of remainder. —

    An infant grantor conveyed his estate in remainder, and the grantee took possession of the land and held it adversely to the life tenant for 15 years. The grantor came of age shortly after making the conveyance. It was held that, the grantee having acquired title to the life estate by adverse possession and holding title to the remainder in fee under the infant’s conveyance, the life estate merged into the remainder, and the statute began to run against the right of the grantor to disaffirm his conveyance no later than at the time of the merger, and not at the time of the death of the life tenant. McCauley v. Grim, 115 Va. 610 , 79 S.E. 1041 , 1913 Va. LEXIS 75 (1913).

    3.Actual Possession.

    The possession of the defendant must be actual. Dawson v. Watkins, 41 Va. (2 Rob.) 259, 1843 Va. LEXIS 31 (1843); Pasley v. English, 46 Va. (5 Gratt.) 141, 1848 Va. LEXIS 35 (1848); Turpin v. Saunders, 73 Va. (32 Gratt.) 27, 1879 Va. LEXIS 44 (1879); Yellow Poplar Lumber Co. v. Thompson, 108 Va. 612 , 62 S.E. 358 , 1908 Va. LEXIS 75 (1908).

    This rule applies to grant from Commonwealth. —

    A grant from the Commonwealth puts the patentee of the land constructively into possession thereof, and there can be no ouster of that possession except by actual adverse possession — some act or acts palpable to the senses which serve to admonish the patentee that his seisin is molested. Green v. Pennington, 105 Va. 801 , 54 S.E. 877 , 1906 Va. LEXIS 88 (1906); City of Richmond v. Jones, 111 Va. 214 , 68 S.E. 181 , 1910 Va. LEXIS 28 (1910).

    The usual kind of actual possession relied upon to effect a disseisin is occupancy use or residence upon the premises for the statutory period of time, evidenced by cultivation, enclosure, or erection of improvements, or other plainly visible, continuous and notorious manifestation of exclusive possession in keeping with the character and adaptability of the land. LaDue v. Currell, 201 Va. 200 , 110 S.E.2d 217, 1959 Va. LEXIS 212 (1959).

    More than sporadic taking of products required. —

    For disseisin to be effective the entry must be with intent to oust the owner and the possession must be evidenced by some act or acts indicating an actual possession of the land itself, as distinguished from mere sporadic taking of the products thereof. LaDue v. Currell, 201 Va. 200 , 110 S.E.2d 217, 1959 Va. LEXIS 212 (1959).

    Acts must serve notice of intent to appropriate land itself. —

    Acts done upon land requisite to constitute adverse possession must be such as to indicate and serve as notice of an intention to appropriate the land itself, and not the mere products of it, to the dominion and ownership of the party entering, such as acts of permanent improvement. Whealton v. Doughty, 112 Va. 649 , 72 S.E. 112 , 1911 Va. LEXIS 132 (1911) (see also Hollingsworth v. Sherman, 81 Va. 668 (1885); Brock v. Bear, 100 Va. 562 , 42 S.E. 307 (1902)).

    4.Notorious and Visible.

    The possession must be open and notorious, in order to confer title to land by adverse possession. Austin v. Minor, 107 Va. 101 , 57 S.E. 609 , 1907 Va. LEXIS 18 (1907); Yellow Poplar Lumber Co. v. Thompson, 108 Va. 612 , 62 S.E. 358 , 1908 Va. LEXIS 75 (1908).

    The ground upon which an adverse title is established is the supposed laches of the true owner. The possession of the adverse claimant must not only be with claim of title, but must be visible, and of such notoriety that the true owner may be presumed to know of it. Turpin v. Saunders, 73 Va. (32 Gratt.) 27, 1879 Va. LEXIS 44 (1879); Hollingsworth v. Sherman, 81 Va. 668 , 1885 Va. LEXIS 30 (1885).

    Where the land is uncleared, or in a state of nature, or where it consists of a fresh water pond or stream surrounded by lands of different persons, whose title as riparian owners includes the land under the water to the center of such pond or stream, the acts of ownership must indicate a change of condition, showing a notorious claim of title, accompanied by the essential elements of adverse possession. Leake v. Richardson, 199 Va. 967 , 103 S.E.2d 227, 1958 Va. LEXIS 149 (1958).

    5.Exclusive.

    Adverse possession must be exclusive in order to constitute an ouster of the true owner. Chapman v. Chapman, 91 Va. 397 , 21 S.E. 813 , 1895 Va. LEXIS 37 (1895); Austin v. Minor, 107 Va. 101 , 57 S.E. 609 , 1907 Va. LEXIS 18 (1907); Gardner v. Montague, 108 Va. 192 , 60 S.E. 870 , 1908 Va. LEXIS 25 (1908); Providence Forge Fishing & Hunting Club v. Miller Mfg. Co., 117 Va. 129 , 83 S.E. 1047 , 1915 Va. LEXIS 16 (1915); Cumbee v. Ritter, 123 Va. 448 , 96 S.E. 747 , 1918 Va. LEXIS 43 (1918).

    When requirement met. —

    Acts sufficient to apprise everyone of exclusive occupation and use, with unequivocal, emphatic and public assertion of ownership, meet the requirements of the Virginia law governing title by adverse possession. Guaranty Title & Trust Corp. v. United States, 264 U.S. 200, 44 S. Ct. 252, 68 L. Ed. 636, 1924 U.S. LEXIS 2495 (1924).

    6.Continuous.

    Possession must be continuous to acquire good title by adverse possession. Taylor v. Burnsides, 42 Va. (1 Gratt.) 165, 1844 Va. LEXIS 26 (1844); Stonestreet v. Doyle, 75 Va. 356 , 1881 Va. LEXIS 19 (1881); Austin v. Minor, 107 Va. 101 , 57 S.E. 609 , 1907 Va. LEXIS 18 (1907); Merryman v. Hoover, 107 Va. 485 , 59 S.E. 483 , 1907 Va. LEXIS 67 (1907).

    Effect of entry by true owner. —

    The tenant cannot sustain his defense of continued adverse possession, so as to make the statute a bar, if the demandants, or those under whom they claim, have within the statutory period before bringing the action entered upon the land in controversy and taken actual possession thereof, by residence, improvement, cultivation, or other open, notorious and habitual acts of ownership. Taylor v. Burnsides, 42 Va. (1 Gratt.) 165, 1844 Va. LEXIS 26 (1844).

    Tacking several possessions together. —

    When several persons enter upon land in succession, the several possessions cannot be tacked so as to preserve the essential continuity unless there is privity of estate between them, or the several estates are connected. And one cannot sustain his defense of adverse possession if, during the period of limitation, the possession has been abandoned by him or those under whom he claims. Hollingsworth v. Sherman, 81 Va. 668 , 1885 Va. LEXIS 30 (1885) (see Christian v. Bulbeck, 120 Va. 74 , 90 S.E. 661 (1916), where tacking of possession of one under whom defendant claimed was permitted).

    Possession under invalid deed cannot be tacked to possession of true owner. —

    Claimants of land by adverse possession could not tack their possession obtained by void deed to the possession of the true owners who held under legal title. Harris v. Deal, 189 Va. 675 , 54 S.E.2d 161, 1949 Va. LEXIS 210 (1949).

    7.Hostile and Under Claim of Right.

    Adverse possession presupposes a disseisin. —

    By “adverse possession” we mean a possession which presupposes a disseisin of the rightful occupant, and not a possession under or through the latter. McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918).

    Occupancy must be hostile. —

    The occupancy which is necessary to support a claim of title by adverse possession must be hostile. Cline v. Catron, 63 Va. (22 Gratt.) 378, 1872 Va. LEXIS 27 (1872); Gardner v. Montague, 108 Va. 192 , 60 S.E. 870 , 1908 Va. LEXIS 25 (1908); Providence Forge Fishing & Hunting Club v. Miller Mfg. Co., 117 Va. 129 , 83 S.E. 1047 , 1915 Va. LEXIS 16 (1915); Cumbee v. Ritter, 123 Va. 448 , 96 S.E. 747 , 1918 Va. LEXIS 43 (1918).

    And with intention to hold adversely. —

    An adverse possession depends upon the intention with which the possession was taken and held. Intention, either express or implied, to hold adversely is an indispensable element. Clarke v. McClure, 51 Va. (10 Gratt.) 305, 1853 Va. LEXIS 52 (1853); Haney v. Breeden, 100 Va. 781 , 42 S.E. 916 , 1902 Va. LEXIS 87 (1902); Stuart v. Meade, 119 Va. 753 , 89 S.E. 866 , 1916 Va. LEXIS 146 (1916).

    A plea of this statute of limitations cannot be sustained where the holding relied on has not been adverse. Cox v. Williams, 183 Va. 152 , 31 S.E.2d 312, 1944 Va. LEXIS 139 (1944).

    Possession by mistake is not adverse. —

    Where a person occupies and possesses the land of another through a misapprehension or mistake as to the boundaries of his land, with no intention to claim as his own that which does not belong to him, but only intending to claim to the true line, whatever that may be, he does not hold adversely. Schaubuch v. Dillemuth, 108 Va. 86 , 60 S.E. 745 , 1908 Va. LEXIS 13 (1908); Clinchfield Coal Co. v. Viers, 111 Va. 261 , 68 S.E. 976 , 1910 Va. LEXIS 37 (1910) (see also Davis v. Owen, 107 Va. 283 , 58 S.E. 581 (1907)).

    Possession must be under claim of right. —

    A mere naked possession without claim of right, no matter how long, never ripens into a good title, but is regarded as being held for the benefit of the true owner. Nowlin v. Reynolds, 66 Va. (25 Gratt.) 137 (1874); Yellow Poplar Lumber Co. v. Thompson, 108 Va. 612 , 62 S.E. 358 , 1908 Va. LEXIS 75 (1908).

    But “claim of right” means only intention of disseisor to appropriate land as his own. —

    The terms “claim of right,” “claim of title,” and “claim of ownership,” when used in connection with adverse possession, mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the exclusion of all others, irrespective of any semblance or shadow of actual title or right. Marion Inv. Co. v. Virginia Lincoln Furn. Corp., 171 Va. 170 , 198 S.E. 508 , 1938 Va. LEXIS 270 (1938).

    Claim of title need not be based on writing. Marion Inv. Co. v. Virginia Lincoln Furn. Corp., 171 Va. 170 , 198 S.E. 508 , 1938 Va. LEXIS 270 (1938).

    Thus, the disseisor need not have a deed or writing giving color of title or furnishing foundation for belief or claim of ownership or legal right to enter and take possession. His intention to appropriate and use the land as his own to the exclusion of all others suffices. Guaranty Title & Trust Corp. v. United States, 264 U.S. 200, 44 S. Ct. 252, 68 L. Ed. 636, 1924 U.S. LEXIS 2495 (1924).

    C.Color of Title.

    Definition. —

    Color of title, for the purposes of the statute of limitations as to land, is that which has the semblance or appearance of title, legal or equitable, but which in fact is not title. Sharp v. Shenandoah Furnace Co., 100 Va. 27 , 40 S.E. 103 , 1901 Va. LEXIS 5 (1901); Knight v. Grim, 110 Va. 400 , 66 S.E. 42 , 1909 Va. LEXIS 157 (1909).

    The principal office of color of title is to define the boundaries and fix the extent of the adverse holding. Sharp v. Shenandoah Furnace Co., 100 Va. 27 , 40 S.E. 103 , 1901 Va. LEXIS 5 (1901); Blacksburg Mining & Mfg. Co. v. Bell, 125 Va. 565 , 100 S.E. 806 , 1919 Va. LEXIS 46 (1919).

    It is inherent in color of title that the title claimed thereunder is invalid, is in fact no title, and the writing may indeed be absolutely void; but if the other requisites of adverse possession are complied with by the disseisor, it will constitute color of title. Nowlin v. Reynolds, 66 Va. (25 Gratt.) 137 (1874); Baber v. Baber, 121 Va. 740 , 94 S.E. 209 , 1917 Va. LEXIS 72 (1917); Blacksburg Mining & Mfg. Co. v. Bell, 125 Va. 565 , 100 S.E. 806 , 1919 Va. LEXIS 46 (1919).

    Title claimed may be good or bad, legal or equitable. —

    It is immaterial whether an adverse possession under a claim of title be under a good or a bad, a legal or an equitable title. Shanks v. Lancaster, 46 Va. (5 Gratt.) 110, 1848 Va. LEXIS 29 (1848); Interstate Coal & Iron Co. v. Clintwood Coal & Timber Co., 105 Va. 574 , 54 S.E. 593 , 1905 Va. LEXIS 59 (1905); Baber v. Baber, 121 Va. 740 , 94 S.E. 209 , 1917 Va. LEXIS 72 (1917); Marion Inv. Co. v. Virginia Lincoln Furn. Corp., 171 Va. 170 , 198 S.E. 508 , 1938 Va. LEXIS 270 (1938).

    Claim of title, as opposed to color of title, is a mere assertion of ownership or right, without paper title. Walton v. Rosson, 216 Va. 732 , 222 S.E.2d 553, 1976 Va. LEXIS 194 (1976).

    Existence of color of title does not dispense with the necessity for acts of adverse possession. It is merely evidence tending to support complainants’ claim when accompanied by the essential elements of adverse possession. Nor did the recordation of the deeds subsequent to the acquisition of their lands by defendants constitute of itself notice to them of the beginning of the running of the statute. Leake v. Richardson, 199 Va. 967 , 103 S.E.2d 227, 1958 Va. LEXIS 149 (1958).

    The possession of one tract extends in law to an adjoining tract held under color of title by the same person. Peck v. Daniel, 212 Va. 265 , 184 S.E.2d 7, 1971 Va. LEXIS 345 (1971).

    D.Conflicting Grants — Interlocks.

    Effect of conflicting grants. —

    Where one grant conflicts in part with another, occasioning an interlock, the elder patentee under his grant acquires constructive seisin in deed of all the land embraced within its boundaries, although he has taken no actual possession of any part thereof. The junior grantee under his grant acquires similar constructive seisin in deed of all the land embraced by its boundaries, except that portion within the interlock, the seisin of which has already vested in the senior grantee. Green v. Pennington, 105 Va. 801 , 54 S.E. 877 , 1906 Va. LEXIS 88 (1906) (see also Breeden v. Haney, 95 Va. 622 , 29 S.E. 328 (1898)).

    Senior patentee prevails where neither claimant has possession. —

    If neither party has actual possession of part of the interlock, the elder seisin in law of the senior patentee will prevail. Overton v. Davisson, 42 Va. (1 Gratt.) 211, 1844 Va. LEXIS 27 (1844); Koiner v. Rankin, 52 Va. (11 Gratt.) 420, 1854 Va. LEXIS 32 (1854); Cline v. Catron, 63 Va. (22 Gratt.) 378, 1872 Va. LEXIS 27 (1872).

    A senior grant confers constructive possession to the limits of its boundary which would prevail without proof of actual possession, unless there was a disseisin. LaDue v. Currell, 201 Va. 200 , 110 S.E.2d 217, 1959 Va. LEXIS 212 (1959).

    Effect of possession of part of interlock by senior patentee. —

    Actual possession by the senior patentee of any part of an interlock will be constructive possession of all not in the actual adverse possession of the junior patentee. Overton v. Davisson, 42 Va. (1 Gratt.) 211, 1844 Va. LEXIS 27 (1844); Koiner v. Rankin, 52 Va. (11 Gratt.) 420, 1854 Va. LEXIS 32 (1854).

    Effect of possession of part of interlock by junior patentee. —

    If the junior patentee has actual possession of part of the interlock, and senior patentee has possession of no part of his grant, the junior has a constructive possession of the interlock, while the senior has a mere seisin in law. The constructive possession of the junior will prevail as to the whole. Taylor v. Burnsides, 42 Va. (1 Gratt.) 165, 1844 Va. LEXIS 26 (1844); Overton v. Davisson, 42 Va. (1 Gratt.) 211, 1844 Va. LEXIS 27 (1844); Turpin v. Saunders, 73 Va. (32 Gratt.) 27, 1879 Va. LEXIS 44 (1879).

    To overcome the constructive seisin in deed of the senior patentee and work an ouster there must be an actual invasion of his boundary by some act or acts palpable to the senses and which should serve to admonish him that his seisin was molested. Green v. Pennington, 105 Va. 801 , 54 S.E. 877 , 1906 Va. LEXIS 88 (1906) (see also Harman v. Ratliff, 93 Va. 249 , 24 S.E. 1023 (1896)).

    Disseisin can be proved only by a taking of actual possession of some part of the interlock. LaDue v. Currell, 201 Va. 200 , 110 S.E.2d 217, 1959 Va. LEXIS 212 (1959).

    E.Possession Originally Consistent with Title of True Owner.
    1.In General.

    Law looks at intent with which possession taken. —

    An adverse possession depends upon the intention with which the possession was taken and held. Wherever the act itself imports that there is a superior title in another, by whose permission and in subordination to whose still continuing and subsisting title, the entry is made, such entry cannot be adverse to the owner of the legal title; and such possession so commencing cannot be converted into an adverse possession, but by disclaimer, the assertion of an adverse title and notice. Clarke v. McClure, 51 Va. (10 Gratt.) 305, 1853 Va. LEXIS 52 (1853); Stuart v. Meade, 119 Va. 753 , 89 S.E. 866 , 1916 Va. LEXIS 146 (1916).

    Holder must disavow owner’s title. —

    Where possession is originally taken and held under the true owner, a clear, positive and continued disclaimer and disavowal of the true owner’s title, and the assertion of an adverse one, must be brought home to the true owner before any foundation can be laid for the operation of the statute of limitations. Creekmur v. Creekmur, 75 Va. 430 , 1881 Va. LEXIS 25 (1881); Hulvey v. Hulvey, 92 Va. 182 , 23 S.E. 233 , 1895 Va. LEXIS 102 (1895); Duggins v. Woodson, 117 Va. 299 , 84 S.E. 652 , 1915 Va. LEXIS 36 (1915); Christian v. Bulbeck, 120 Va. 74 , 90 S.E. 661 , 1916 Va. LEXIS 159 (1916).

    2.Cotenants.

    Necessity for disseisin or ouster. —

    The possession of one coparcener or tenant in common being the possession of all, one in possession of the whole subject cannot avail himself of such possession as a defense under the statute of limitations, against the rest, without an actual disseisin or ouster of his coparceners or cotenants. Purcell v. Wilson, 45 Va. (4 Gratt.) 16, 1847 Va. LEXIS 10 (1847); Emerick v. Tavener, 50 Va. (9 Gratt.) 220, 1852 Va. LEXIS 37 (1852); Stonestreet v. Doyle, 75 Va. 356 , 1881 Va. LEXIS 19 (1881); Fry v. Payne, 82 Va. 759 , 1 S.E. 197 , 1887 Va. LEXIS 142 (1887); Lagorio v. Dozier, 91 Va. 492 , 22 S.E. 239 , 1895 Va. LEXIS 45 (1895).

    Assertion of right must be brought home to cotenant. —

    Where the possession of property is acquired in privity with another the possession of one is ordinarily deemed the possession of all, and this presumption prevails in favor of all until an assertion of an adverse right is brought home to the actual knowledge of a cotenant out of possession. Rutledge v. Rutledge, 204 Va. 522 , 132 S.E.2d 469, 1963 Va. LEXIS 181 (1963).

    A purchaser from a cotenant may hold adversely. Johnston v. Virginia Coal & Iron Co., 96 Va. 158 , 31 S.E. 85 , 1898 Va. LEXIS 75 (1898).

    Claimant under will. —

    A son took possession of the land of his father, claiming title to it under a lost will. Such taking and holding possession was adverse to the other heirs, and the statute of limitations commenced to run from the time of the taking possession. Caperton v. Gregory, 52 Va. (11 Gratt.) 505, 1854 Va. LEXIS 39 (1854).

    3.Mortgagor and Mortgagee.

    A privity exists which precludes the idea of a hostile, tortious possession which could silently ripen into a title by adverse possession under the statute of limitations where a mortgagee holds under the owner of the legal title. Chapman v. Armistead, 18 Va. (4 Munf) 382, 1815 Va. LEXIS 20 (1815); Newman v. Chapman, 23 Va. (2 Rand.) 93, 1823 Va. LEXIS 42 (1823); Thompson v. Camper, 106 Va. 315 , 55 S.E. 674 , 1906 Va. LEXIS 136 (1906).

    4.Vendor and Purchaser.

    Section inapplicable. —

    This section generally relates to adverse possession and is not applicable to a situation where a vendee has a valid deed of bargain and sale which the vendor contends he was fraudulently induced to execute. Burton v. Terrell, 368 F. Supp. 553, 1973 U.S. Dist. LEXIS 11016 (W.D. Va. 1973).

    Possession of vendor not adverse until disclaimer. —

    The possession of a vendor of land after conveyance in fee to his grantee is in subserviency to the grantee, and a clear, positive and continued disclaimer and disavowal of such relation, and the assertion of an adverse right, brought home to the knowledge of the true owner, are indispensable to change the character of the grantor’s possession and render it adverse to the grantee. Schaubuch v. Dillemuth, 108 Va. 86 , 60 S.E. 745 , 1908 Va. LEXIS 13 (1908); Gillespie v. Hawks, 206 Va. 705 , 146 S.E.2d 211, 1966 Va. LEXIS 138 (1966).

    From the time the grantor explicitly disclaims holding under the grantee, and openly asserts his title to the premises, in hostility to the title claimed under his own previous deed, his possession becomes adverse, even though he knew his title to be bad, and from that moment the statute of limitations will begin to run. Creekmur v. Creekmur, 75 Va. 430 , 1881 Va. LEXIS 25 (1881).

    In order to make the plea of limitation effectual in a case where the grantor remains in possession, using the land as he did before his deed, he must show some notorious act of ownership over the property, distinctly hostile to the claim of the grantee. Gillespie v. Hawks, 206 Va. 705 , 146 S.E.2d 211, 1966 Va. LEXIS 138 (1966).

    The same is true of possession of original owner after judicial sale. —

    The possession of the original owner, and of those claiming under him, from the time of the sale by the commissioners until the final decree, is not an adverse possession to the purchaser and those claiming under him. Evans v. Spurgin, 47 Va. (6 Gratt.) 107, 1849 Va. LEXIS 26 (1849) (see also Whitlock v. Johnson, 87 Va. 323 , 12 S.E. 614 (1891)).

    And of possession of vendee under executory contract of sale. —

    One who enters into possession of land pursuant to a contract of purchase cannot be said to hold adversely to his vendor. And though the purchaser has, by the payment of the entire purchase money, acquired full equitable title, such equitable title is derived from his vendor, who retained the legal title for future conveyance. The purchaser holds in subordination to and under the protection of the title of his vendor, and no length of time is sufficient for such possession to ripen silently into a title by adverse possession. Clarke v. McClure, 51 Va. (10 Gratt.) 305, 1853 Va. LEXIS 52 (1853); Nowlin v. Reynolds, 66 Va. (25 Gratt.) 137 (1874); Chapman v. Chapman, 91 Va. 397 , 21 S.E. 813 , 1895 Va. LEXIS 37 (1895).

    Necessity and sufficiency of disclaimer of vendor’s right. —

    Before adverse possession can arise between a vendor and his vendee, or between the grantee of the vendor and such vendee, where the vendor has retained the title, and the statute of limitations can commence to run, the vendee must have dissevered the privity of title between them by the assertion of an adverse right, and openly and continuously disclaimed the title of his vendor, and such disclaimer must be clearly brought home to the knowledge of the vendor or his grantee. Chapman v. Chapman, 91 Va. 397 , 21 S.E. 813 , 1895 Va. LEXIS 37 (1895); Alleghany v. Parrish, 93 Va. 615 , 25 S.E. 882 , 1896 Va. LEXIS 119 (1896) (see Allen v. Powers, 194 Va. 662 , 74 S.E.2d 688 (1953)).

    The hostility of the grantor’s holding must be brought to the grantee’s attention in such a manner as to put the latter on notice of the grantor’s intention to occupy the property in his own right. Gillespie v. Hawks, 206 Va. 705 , 146 S.E.2d 211, 1966 Va. LEXIS 138 (1966).

    The mere fact that the grantor remains in possession, using the property as before conveyance, is not sufficient in itself to bind the grantee with notice that the grantor is holding adversely to him. Gillespie v. Hawks, 206 Va. 705 , 146 S.E.2d 211, 1966 Va. LEXIS 138 (1966).

    A vendee cannot be said to hold adversely to his vendor where possession remains in privity with and subservient to the legal title of the vendor. In such case a vendee is not permitted to impeach or assail the title of his vendor. Allen v. Powers, 194 Va. 662 , 74 S.E.2d 688, 1953 Va. LEXIS 132 (1953).

    Presumption. —

    Where a grantor continues in possession of the land after the execution and delivery of the deed, his possession will be regarded as holding the premises in subserviency to the grantee, as his tenant or as trustee for him; however, this presumption is rebuttable and under proper circumstances a grantor may by adverse possession acquire title to land which he has conveyed. Gillespie v. Hawks, 206 Va. 705 , 146 S.E.2d 211, 1966 Va. LEXIS 138 (1966).

    Burden. —

    The burden was on the heirs of the grantor to prove that the possession by the grantor was adverse to his grantee. Gillespie v. Hawks, 206 Va. 705 , 146 S.E.2d 211, 1966 Va. LEXIS 138 (1966).

    5.Entry Under Parol Gift.

    Not adverse until disclaimer. —

    An entry on land under a parol gift from the owner is, in its nature, a recognition of the continued existence of a subsisting title in the legal owner, and a claim to hold an estate by gift from the legal owner is a claim to hold in subordination of his title. Thus, until there has been a disclaimer, the statute does not commence to run in favor of the tenant. Clarke v. McClure, 51 Va. (10 Gratt.) 305, 1853 Va. LEXIS 52 (1853); Thompson v. Camper, 106 Va. 315 , 55 S.E. 674 , 1906 Va. LEXIS 136 (1906).

    6.Trust Estates.

    Possession of grantor in deed of trust not adverse. —

    The possession of a grantor in a deed of trust after the execution of the deed, is not adverse to the title of the trustee, but is only as his tenant at will or sufferance. The possession so continues after the sale by the trustee until it is determined by the will of the legal owner, or at least until the title of the legal owner is disclaimed with his knowledge. Creigh v. Henson, 51 Va. (10 Gratt.) 231, 1853 Va. LEXIS 40 (1853).

    Trustee cannot acquire title against cestui que trust. —

    No lapse of time, however long, will give a trustee a right to trust property by adverse possession as against the cestui que trust. Thompson v. Camper, 106 Va. 315 , 55 S.E. 674 , 1906 Va. LEXIS 136 (1906).

    Rule applies to constructive trusts. —

    Land was sold under an order of court, the sale was confirmed and the purchase money paid, but no deed was given, and the former owner’s heirs remained in possession. It was held that equity looks upon the heirs as trustees, and in such a case before the statute begins to run in their favor, they must make a clear, positive and continued disclaimer and disavowal of title in the purchaser and his heirs, and the assertion of an adverse right, brought home to the knowledge of the purchaser or his heirs. Whitlock v. Johnson, 87 Va. 323 , 12 S.E. 614 , 1891 Va. LEXIS 75 (1891).

    7.Life Tenant and Remainderman.

    The possession of a life tenant as such cannot be adverse to the remainderman or reversioner, because the right of action of the latter does not accrue until the death of the life tenant. Hannon v. Hounihan, 85 Va. 429 , 12 S.E. 157 , 1888 Va. LEXIS 52 (1888); Duggins v. Woodson, 117 Va. 299 , 84 S.E. 652 , 1915 Va. LEXIS 36 (1915).

    Grantees and devisees of life tenant. —

    After the termination of a life estate, the possession of a grantee from the life tenant holding under a deed conveying the fee simple is deemed adverse to the remainderman, and if the remainderman permits the devisee of a fee simple interest under the will of the life tenant to take possession of the property under the will, such possession is adverse to the remainderman so as to bar his title after the expiration of the statutory period. Rutledge v. Rutledge, 204 Va. 522 , 132 S.E.2d 469, 1963 Va. LEXIS 181 (1963).

    Tenant by curtesy. —

    Where defendants’ predecessor acquired possession as a tenant by curtesy, limitations do not begin to run against the remainderman and in favor of defendants until their possession has become notoriously tortious and adverse. Duggins v. Woodson, 117 Va. 299 , 84 S.E. 652 , 1915 Va. LEXIS 36 (1915).

    8.Landlord and Tenant.

    Acts of tenant changing nature of possession. —

    The statute does not begin to run against a landlord until the possession, before in privity with him, becomes tortious and wrongful by the disloyal acts of the occupying tenant, which must be open, continuous and notorious, so as to preclude any doubt of the character of the holding or the fact of knowledge on the part of the landlord. Creigh v. Henson, 51 Va. (10 Gratt.) 231, 1853 Va. LEXIS 40 (1853); Thompson v. Camper, 106 Va. 315 , 55 S.E. 674 , 1906 Va. LEXIS 136 (1906); Baber v. Baber, 121 Va. 740 , 94 S.E. 209 , 1917 Va. LEXIS 72 (1917).

    Action by heirs of landlord. —

    If the possession of a tenant was sufficient to bar the action of the landlord, at the time of his death, it is sufficient to bar the action of his heirs. Overton v. Davisson, 42 Va. (1 Gratt.) 211, 1844 Va. LEXIS 27 (1844).

    9.Widow in Possession of Mansion.

    Widow must publish her adverse claim. —

    As a widow is entitled to hold the mansion and curtilage until dower is assigned to her, the statute of limitations will not begin to run until her possession ends or she publishes her claim and possession to be adverse by actual and open disseisin. Hannon v. Hounihan, 85 Va. 429 , 12 S.E. 157 , 1888 Va. LEXIS 52 (1888).

    F.Property Which May Be Held Adversely.

    Lands of the Commonwealth. —

    The bar of the statute of limitations has no application as between a private party and the Commonwealth, as to realty of the latter. Seekright v. Lawson, 35 Va. (8 Leigh) 458, 1836 Va. LEXIS 76 (1836); Hurst v. Dulany, 84 Va. 701 , 5 S.E. 802 , 1888 Va. LEXIS 132 (1888); Eastern State Hosp. v. Graves, 105 Va. 151 , 52 S.E. 837 , 1906 Va. LEXIS 17 (1906).

    Actual possession of a part of a tract of land, under color and claim of title to the whole, is possession of the whole, and this principle applies to lands of the Commonwealth as against persons not lawfully claiming under her. Green v. Pennington, 105 Va. 801 , 54 S.E. 877 , 1906 Va. LEXIS 88 (1906).

    Waste and unappropriated land. —

    Though waste and unappropriated land is claimed by the patentee of adjoining land as being included within the boundaries of his patent, and actual possession thereof is taken by such patentee, and maintained for 15 years, such possession cannot be adverse to the Commonwealth, and her grantee of the land is consequently entitled to recover it. Seekright v. Lawson, 35 Va. (8 Leigh) 458, 1836 Va. LEXIS 76 (1836) (see also Norfolk City v. Cooke, 68 Va. (27 Gratt.) 430 (1876); Harman v. Ratliff, 93 Va. 249 , 24 S.E. 1023 (1897)).

    Public highways and streets. —

    No title by adverse possession can be acquired in a public street. Bellenot v. City of Richmond, 108 Va. 314 , 61 S.E. 785 , 1908 Va. LEXIS 36 (1908); Virginia Hot Springs Co. v. Lowman, 126 Va. 424 , 101 S.E. 326 , 1919 Va. LEXIS 105 (1919).

    Right to obstruct highway. —

    One cannot acquire by adverse possession the right to shut up or obstruct a public highway. Taylor v. Commonwealth, 70 Va. (29 Gratt.) 780, 1878 Va. LEXIS 15 (1878); Yates v. Town of Warrenton, 84 Va. 337 , 4 S.E. 818 , 1888 Va. LEXIS 85 (1888); Depriest v. Jones, 21 S.E. 478 (Va. Ct. App. 1895); Norfolk & W. Ry. v. Board of Supvrs., 110 Va. 95 , 65 S.E. 531 , 1909 Va. LEXIS 120 (1909); Board of Supvrs. v. Norfolk & W. Ry., 119 Va. 763 , 91 S.E. 124 , 1916 Va. LEXIS 147 (1916).

    G.Effect of Adverse Possession.

    Adverse possession vests title in disseisor. —

    Under this section adverse possession for the required period not only bars the owner’s right of entry or action but vests title in the disseisor. Guaranty Title & Trust Corp. v. United States, 264 U.S. 200, 44 S. Ct. 252, 68 L. Ed. 636, 1924 U.S. LEXIS 2495 (1924).

    The result of the statute of limitations is so absolute that the adverse possession operates as a transfer of the legal title, hence a disseisin of the holder of the better title. Taylor v. Burnsides, 42 Va. (1 Gratt.) 165, 1844 Va. LEXIS 26 (1844); Middleton v. Johns, 45 Va. (4 Gratt.) 129, 1847 Va. LEXIS 33 (1847); Nowlin v. Reynolds, 66 Va. (25 Gratt.) 137 (1874); Thomas v. Jones, 69 Va. (28 Gratt.) 383, 1877 Va. LEXIS 75 (1877).

    And title so acquired is perfect. —

    A true adverse possession for the statutory period confers upon the occupant a new, independent, unencumbered, indefeasible title, a weapon of defense and offense, good alike at law and in equity in all proceedings which call in question its validity or endanger its security. In short, such a title, though not derived from the former owner, is as good as it would be possible to acquire by deed from a former owner of a perfect title, or by a grant from the Commonwealth. McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918).

    Defects in title are cured. —

    Defects in a person’s title to land are cured by lapse of time, where he has been in the uninterrupted, honest, and adverse possession of the land under color of title for over 15 years. Bryan v. Augusta Perpetual Bldg. & Loan Co., 104 Va. 611 , 52 S.E. 357 , 1905 Va. LEXIS 140 (1905).

    Right of claimant under equitable title barred. —

    An equitable title to land asserted against the holder of the legal title, is barred by an adverse possession for the statutory period held by the claimant of the legal title, the claimant of the equity having full knowledge of such possession from its commencement and being under no disability. Straughan v. Wright, 25 Va. (4 Rand.) 493, 1826 Va. LEXIS 70 (1826); Cresap v. M'Lean, 32 Va. (5 Leigh) 381, 1834 Va. LEXIS 47 (1834).

    Lien of judgment against former owner barred. —

    Under §§ 8.01-462 through 8.01-464 the lien of a judgment may be indefinitely continued against the land of the judgment debtor in his possession, or in the possession of others holding titles derived from and in privity with him. But obviously the same rule cannot be applied to strangers who have acquired a perfect legal title not in privity with but adversely to the title of the judgment debtor. In other words, the life of a judgment may be indefinitely prolonged as to any property upon which it can operate, but whenever the right of the judgment debtor to make an entry on or bring an action to recover any land held adversely is tolled by this section, the right of his judgment creditor to subject such land to the satisfaction of his judgment also ceases. The lien is a vested right, but not more so than the title to which the lien attaches, and when the statute destroys the latter it necessarily destroys the former. McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918) (see Neff’s Adm’r v. Newman, 150 Va. 203 , 142 S.E. 389 (1928). But see Flanary v. Kane, 102 Va. 547 , 46 S.E. 312 , rehearing denied, 46 S.E. 681 (1904), in which it was held that this section applies only to the right to make an entry or to bring an action to recover land; it does not apply to the suit of a judgment creditor to enforce his lien against land).

    H.Evidence.

    Necessity for proof of adverse possession. —

    Proof of adverse possession is essential as a foundation for a plea of bar arising from statutes of limitation. Lamar v. Hale, 79 Va. 147 , 1884 Va. LEXIS 72 (1884) (see also Boatright v. Meggs, 18 Va. (4 Munf.) 145 (1813)).

    Evidence admissible to show possession. —

    Evidence tending to show that the defendant’s predecessor in title claimed the land in controversy and exercised acts of ownership over it, by cutting timber and clearing and improving portions of it with the knowledge of the plaintiff, is clearly competent as tending to show where he and the plaintiff regarded the line between them, and also as tending to show adverse possession on the part of the defendant’s predecessor in title even though the acts mentioned were not in themselves sufficient to show title by adverse possession. Smith v. Stanley, 114 Va. 117 , 75 S.E. 742 , 1912 Va. LEXIS 119 (1912) (see also Taylor v. Burnsides, 42 Va. (1 Gratt.) 165 (1844)).

    And to show possession not adverse. —

    The record of a suit for specific performance brought three years before the commencement of an ejectment action was admissible to show that defendant’s possession was not adverse at that time. Marbach v. Holmes, 105 Va. 178 , 52 S.E. 828 , 1906 Va. LEXIS 22 (1906).

    Possession under claim of right. —

    Where one claims title by open, notorious and adverse possession for a period sufficient to give good title, it is competent for him to prove not only that he had possession, but that the possession was under a claim of right, and that his claim and the character of the possession were such that he was generally reputed in the neighborhood to be the owner. Lusk v. Pelter & Co., 101 Va. 790 , 45 S.E. 333 , 1903 Va. LEXIS 89 (1903).

    Entry and survey under patent are admissible to show color of title. —

    A tenant in ejectment claiming under a junior patent founded on an inclusive survey may, to show possession under color of title prior to his patent, introduce in evidence the entries for the different tracts embraced in the inclusive survey, the order of court authorizing the survey, and the survey itself. Shanks v. Lancaster, 46 Va. (5 Gratt.) 110, 1848 Va. LEXIS 29 (1848).

    But are not proof of disseisin. —

    Evidence of the making of an inclusive survey, the obtaining of a patent thereon, and probable notice of these proceedings to the demandants’ ancestor, did not constitute any proof of such possession as is necessary to work a disseisin. Koiner v. Rankin, 52 Va. (11 Gratt.) 420, 1854 Va. LEXIS 32 (1854).

    Proof of notice of adverse possession. —

    It has been held, in cases involving cotenants or others originally having privity of title with the disseisor, that constructive notice of adverse possession may be presumed from a great lapse of time with circumstances which may warrant such presumption. Such notice, like any other fact involved in a civil case, may be proved by circumstantial evidence, the probative value and sufficiency of the circumstantial evidence to sustain the burden of proof required being entirely with the jury. Leake v. Richardson, 199 Va. 967 , 103 S.E.2d 227, 1958 Va. LEXIS 149 (1958).

    Burden of proof. —

    The character of the user being a question of fact, the burden of showing the essential elements of adverse possession is upon the person asserting such ownership. Leake v. Richardson, 199 Va. 967 , 103 S.E.2d 227, 1958 Va. LEXIS 149 (1958); Peck v. Daniel, 212 Va. 265 , 184 S.E.2d 7, 1971 Va. LEXIS 345 (1971).

    Record of condemnation proceedings is admissible to show color of title. Knight v. Grim, 110 Va. 400 , 66 S.E. 42 , 1909 Va. LEXIS 157 (1909).

    Evidence held sufficient to establish title by adverse possession. Mock v. Copenhaver, 184 Va. 744 , 36 S.E.2d 542, 1946 Va. LEXIS 138 (1946).

    Evidence held insufficient to show adverse possession by complainants who never enclosed disputed area or placed any improvements on it, and showed only sporadic cultivation and mowing. LaDue v. Currell, 201 Va. 200 , 110 S.E.2d 217, 1959 Va. LEXIS 212 (1959).

    I.How Title by Adverse Possession Lost.

    Re-entry of holder of paper title. —

    Although title by adverse possession is complete, it will be destroyed by the re-entry of the party having the paper title and his holding the land by virtue of the paper title for the statutory period. Marbury v. Jones, 112 Va. 389 , 71 S.E. 1124 , 1911 Va. LEXIS 97 (1911).

    CIRCUIT COURT OPINIONS

    Sporadic or temporary use not sufficient. —

    Because the neighbors cultivated and improved a portion of real estate belonging to the owners for over 15 years and established absolute dominion and enjoyment over the area, they proved adverse possession of the area; however, because their activity in a wooded area was sporadic and temporary, it was insufficient to establish actual possession. Zur Lippe v. Hedge, 68 Va. Cir. 23, 2005 Va. Cir. LEXIS 93 (Amherst County Feb. 11, 2005).

    Adverse possession shown. —

    Property owners and their immediate predecessors in title of adjacent lot were mistaken as to the existence of the neighboring property, and as to the location of their actual boundary line delineating that neighboring property, but the effect of that mistake was they both adversely possessed the disputed buffer strip with the requisite claim of right, they used and occupied it as their yard and garden in an obvious way, and adverse possession was proven. Hunt v. Section 1, Oyster Bay Comm. Assoc., 61 Va. Cir. 103, 2003 Va. Cir. LEXIS 218 (Accomack County Jan. 28, 2003).

    Possession caused by mistake is not adverse. —

    One who possesses adjoining land of another under a mistake as to the person’s own boundaries with no intention to claim land that does not belong to the person, but only intending to claim to the true line, wherever it may be, does not adversely hold the land in question. Green v. Knott, 63 Va. Cir. 18, 2003 Va. Cir. LEXIS 322 (Mecklenburg County Apr. 4, 2003).

    Tacking allowed. —

    In an action for quiet title by adverse possession, the occupier testified to a number of activities proving she was entitled to obtain title by adverse possession. She testified that she treated the property as her own and visited the property yearly, that she inspected the property for trespassers and removed trash and signs posted by others, and she presented copies of checks made payable to the County of Fairfax, Virginia, since 1943, proving that she and her predecessors continuously paid the real estate taxes on the property rather than owners; since privity existed by blood, the occupier was entitled to tack her ownership with her predecessors dated back to 1973. Jones v. Priest, 79 Va. Cir. 39, 2009 Va. Cir. LEXIS 78 (Fairfax County Apr. 8, 2009).

    Adverse possession claim not untimely. —

    Adverse possession claim was not untimely under § 8.01-236 on the basis that plaintiff landowner failed to possess the land adversely against defendant neighbor for the statutory period; previous owners could not have received an interest in the property to transfer to the neighbor, having lost that interest by the landowner’s adverse possession against an earlier owner between 1969 and 1993. Morton v. Zeigler, 75 Va. Cir. 236, 2008 Va. Cir. LEXIS 242 (Charlottesville May 27, 2008).

    Prescriptive easements compared. —

    Where an adjacent landowner’s evidence established beyond question that a portion of a disputed roadway was used as a driveway, parking lot, and access road for the proper period of time and in conformity with all of the requirements for adverse possession, when such was corroborated by documentary evidence, adverse possession was found; however, her neighbor failed to prove sufficient possession of the same to establish adverse possession, but instead had a prescriptive easement in the same. Denton v. Abbitt, 66 Va. Cir. 54, 2004 Va. Cir. LEXIS 249 (Amherst County Sept. 8, 2004).

    § 8.01-237. Effect of disabilities upon right of entry on, or action for, land.

    Notwithstanding the provisions of subsection A of § 8.01-229 , no disabilities or tacking of disabilities shall preserve to any person or his successors a right to make entry on or bring an action to recover land for more than twenty-five years after such right first accrued, although such person or persons shall have been disabled during the whole of such twenty-five years.

    History. Code 1950, §§ 8-7, 8-8; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-237 qualifies the application of § 8.01-229 A to rights of entry on or actions for land and modifies former §§ 8-7 and 8-8. A 25-year limit is placed on the right to enter on or bring an action for land regardless of the disabilities of persons so entitled.

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Adverse Possession, §§ 2, 17, 37.

    CASE NOTES

    This section is not a true statute of limitations but a “cutoff” provision that operates to define the maximum period within which an action may be brought, regardless of applicable statutes of limitations. Lavery v. Automation Mgt. Consultants, Inc., 234 Va. 145 , 360 S.E.2d 336, 4 Va. Law Rep. 543, 1987 Va. LEXIS 255 (1987).

    Tacking disabilities not allowed. —

    Where a disability existing at the time the cause of action accrued is removed, another disability arising subsequently cannot be tacked to it to avoid the bar of the statute. Fitzhugh v. Anderson, 12 Va. (2 Hen. & M.) 289 (1808); Hudson v. Hudson, 20 Va. (6 Munf.) 352 (1819); Parsons v. McCracken, 36 Va. (9 Leigh) 495 (1838). The cases cited above were decided under former comparable section.

    Disabilities which bring a person within the exceptions of the statute cannot be filed one upon another; a party claiming the benefit of this proviso can only avail himself of the disability existing when the right of action first accrued. Lessee of Mercer v. Selden, 42 U.S. 37, 11 L. Ed. 38, 1843 U.S. LEXIS 286 (1843) (decided under prior law).

    Recurring lunacy. —

    Where after one was adjudged a lunatic and his land was sold in an action by a creditor against his committee, limitations on an action by the lunatic to recover the land commenced to run when he was discharged as restored to sanity, and continued to run notwithstanding a recurrence of insanity nine years later. Howard v. Landsberg's Comm., 108 Va. 161 , 60 S.E. 769 , 1908 Va. LEXIS 23 (1908) (decided under prior law).

    Infancy of one joint tenant does not affect other tenants. —

    As ejectment lies in Virginia for an undivided interest in realty, the infancy of one joint tenant will not prevent the running of the act of limitations as to the other joint tenants not under disability. Redford v. Clarke, 100 Va. 115 , 40 S.E. 630 , 1902 Va. LEXIS 5 (1902) (decided under prior law).

    § 8.01-238. To repeal grant.

    A bill in equity to repeal, in whole or in part, any grant of land by the Commonwealth, shall be brought within ten years next after the date of such grant.

    History. Code 1950, § 8-9; 1977, c. 617.

    Cross references.

    As to bill to repeal land grants generally, see § 41.1-13 .

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Limitation of Actions, §§ 4, 7, 11, 22.

    CASE NOTES

    Actions by Commonwealth not barred. —

    Since this section does not, by its express terms, apply to the Commonwealth, it cannot bar an action by it. Bradford v. Nature Conservancy, 224 Va. 181 , 294 S.E.2d 866, 1982 Va. LEXIS 281 (1982).

    Section is inapplicable to a declaratory judgment action to determine the rights of the parties. Bradford v. Nature Conservancy, 224 Va. 181 , 294 S.E.2d 866, 1982 Va. LEXIS 281 (1982).

    This section may not be used to defeat a landowner’s effort to show that a grant under former § 41-84 (now § 41.1-16 ) is void and to have a court of equity confirm his title. Johnson v. Buzzard Island Shooting Club, Inc., 232 Va. 32 , 348 S.E.2d 220, 3 Va. Law Rep. 476, 1986 Va. LEXIS 223 (1986).

    Applies to land grant obtained by false representations. —

    In a suit to repeal a land grant, it was claimed that the patent had been obtained upon false suggestions, and circumstances were relied on to establish the existence of a trust, to take the case out of the operation of the statute, but it was held that the language was express that no patent could be repealed after the lapse of 10 years. Goodwin v. M'Cluer, 44 Va. (3 Gratt.) 291, 1846 Va. LEXIS 55 (1846) (decided under prior law).

    § 8.01-239. Ground rents.

    No action shall be brought for the recovery of any ground rent reserved upon real estate after the expiration of ten years from the time such ground rent becomes due and payable.

    History. Code 1950, § 8-10; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Landlord and Tenant, § 65.

    CASE NOTES

    Action for ground rent imposed under authority of statute. —

    Where ground rent is reserved in land conveyed by trustees, by authority of an act of assembly, which rent is to be paid to the owner of the land when he is ascertained, the statute of limitations does not run on the claim of the proprietor against the purchaser to recover such rents. Mulliday v. Machir, 45 Va. (4 Gratt.) 1, 1846 Va. LEXIS 82 (1846) (decided under prior law).

    § 8.01-240. Liens for water, sewer, or sidewalk assessments.

    No suit shall be brought to enforce the lien of any water, sewer, or sidewalk assessment, heretofore or hereafter made, against lands which have been conveyed by the person owning them at the time of such assessment to a grantee for value unless the same be brought within ten years from the due recordation of the deed from such person to grantee and within twenty years from the due docketing of such assessment.

    History. Code 1950, §§ 8-10.1, 8-10.2; 1958, c. 516; 1966, c. 434; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Limitation of Actions, § 22.

    § 8.01-241. Limitation of enforcement of deeds of trust, mortgages and liens for unpaid purchase money.

    1. No deed of trust or mortgage heretofore or hereafter given to secure the payment of money, and no lien heretofore or hereafter reserved to secure the payment of unpaid purchase money, shall be enforced after 10 years from the time when the original obligation last maturing thereby secured shall have become due and payable according to its terms and without regard to any provision for the acceleration of such date; provided that the period of one year from the death of any party in interest shall be excluded from the computation of time.
    2. Notwithstanding the limitations prescribed by subsection A, a deed of trust or mortgage given, and a lien reserved to secure the payment of money, for which the original obligation last maturing thereby secured became due and payable according to its terms between July 1, 1988, and July 1, 2000, without regard to any provision for the acceleration of the date such obligation became due and payable, shall not be enforced after July 1, 2010. However, the provisions of this subsection shall have no effect on the rights of a person who (i) acquired an interest in the real property securing such deed of trust or mortgage between July 1, 2008, and the date of enactment of this subsection and (ii) would otherwise have priority over or take free of such deed of trust or mortgage under the laws of the Commonwealth at that time.
    3. The limitations prescribed by this section may be extended by the recordation of a certificate in the form provided in § 8.01-241.1 prior to the expiration of the limitation period prescribed herein in the clerk’s office in which such lien is recorded and executed either by the party in whom the beneficial title to the property so encumbered is vested at the time of such recordation or by his duly authorized attorney-in-fact, or agent. Recordation of the certificate shall extend the limitations of the right to enforce the lien for 10 years from the date of the recordation of the certificate. The clerk of the court shall index the certificate in both names in the index of the deed book and give reference to the book and page in which the original writing is recorded. Unless the deed or deeds executed pursuant to the foreclosure of any mortgage or to the execution of or sale under any deed of trust is recorded in the county or city where the land is situated within one year after the time the right to enforce the mortgage or deed of trust shall have expired as hereinabove provided, such deed or deeds shall be void as to all purchasers for valuable consideration without notice and lien creditors who make any purchase of or acquire any lien on the land conveyed by any such deed prior to the time such deed is so recorded.

    History. Code 1950, § 8-11; 1950, p. 19; 1977, c. 617; 1980, c. 499; 1994, c. 547; 1999, c. 788; 2008, c. 226; 2009, c. 163.

    REVISERS’ NOTE

    The last sentence of former § 8-11 referring to “glebe lands” has been deleted in § 8.01-241 as no longer necessary.

    The 1999 amendment rewrote the second sentence, which formerly read: “The limitations prescribed by this section may be extended by an endorsement to that effect, entered prior to the expiration of the limitation period prescribed herein by the party in whom the beneficial title to the property so encumbered is at the time of such endorsement by the beneficial titleholder or his duly authorized attorney-in-fact, or agent, upon a certificate recorded in the clerk’s office in which such lien is recorded.”

    The 2008 amendments.

    The 2008 amendment by c. 226 substituted “10 years” for “twenty years” in the first and third sentences.

    The 2009 amendments.

    The 2009 amendment by c. 163, effective retroactively to July 1, 2008, divided the former section into subsections A and C, inserted the subsection designations; and added subsection B.

    Law Review.

    For article on title examination in Virginia, see 17 U. Rich. L. Rev. 229 (1983).

    For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

    Michie’s Jurisprudence.

    For related discussion, see 13A M.J. Mortgages and Deeds of Trust, §§ 92, 166.

    CASE NOTES

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The terms “the statute” and “this section,” as used below, may refer to former provisions. Note also that the 2008 amendment changed the limitation period from 20 years to 10 years.

    This section creates an absolute bar to any proceeding for the enforcement of a deed of trust or mortgage after 20 years from the time the right to enforce it accrued. Cohen v. Jenkins, 125 Va. 635 , 100 S.E. 678 , 1919 Va. LEXIS 54 (1919).

    But it does not affect the rule of presumption of payment. —

    The rule of presumption of payment from lapse of time is not affected by the positive bar of the statute of limitations. Turnbull v. Mann, 99 Va. 41 , 37 S.E. 288 , 1900 Va. LEXIS 121 (1900).

    Institution of suit stops running of statute. —

    If the suit is instituted before the expiration of the 20-year period, the bar of the statute does not become effective. Anderson v. Biazzi, 166 Va. 309 , 186 S.E. 7 , 1936 Va. LEXIS 190 (1936).

    The legislature, in enacting this section, did not intend, from the language, “No deed of trust or mortgage . . . shall be enforced after 20 years . . . ,” that a final decree, from which there could be no appeal and under which there must be an irrevocable conveyance of the property to the purchaser, must be entered before the expiration of the 20-year period. The legislature meant by the language used that the institution of a suit to subject the land was the enforcement of the deed of trust or mortgage. Anderson v. Biazzi, 166 Va. 309 , 186 S.E. 7 , 1936 Va. LEXIS 190 (1936).

    Party may be estopped by fraud to plead section. —

    The defendants were precluded and estopped by their own fraud from relying upon the statute of limitations contained in this section as a bar to the enforcement of a deed of trust. Sadler v. Marsden, 160 Va. 392 , 168 S.E. 357 , 1933 Va. LEXIS 220 (1933).

    The lien of the trust deed was not extended in the manner provided for by this section and so went out of being after 20 years. Since it was not extended, it could not as such thereafter be revived, unless possibly some principle of estoppel can be invoked or some fraud has been practiced. Wilson v. Butt, 168 Va. 259 , 190 S.E. 260 , 1937 Va. LEXIS 221 (1937).

    Demand not barred at law by limitations not barred in equity. —

    Where a legal demand is asserted in equity which is not barred at law by the applicable statute of limitations, neither is it barred in equity. Thus, given that the statute of limitation for enforcing a deed of trust lien is 20 years, the doctrine of laches will not bar the enforcement of a deed of trust prior to the expiration of the time period. United States v. Lomas Mtg., USA, Inc., 742 F. Supp. 936, 1990 U.S. Dist. LEXIS 11208 (W.D. Va. 1990).

    Action for recovery of money and suit to enforce lien distinguished. —

    Though an action at law to recover purchase money is barred, a suit in equity to enforce a deed of trust or mortgage is not affected by any time short of that provided in this section. Tunstall v. Withers, 86 Va. 892 , 11 S.E. 565 , 1890 Va. LEXIS 57 (1890).

    That the personal liability of the vendee of real estate for the purchase money has been barred by the statute of limitations does not bar a suit in equity to enforce the lien, provided the latter is brought within the time prescribed by this section. Rector v. Tazewell Coal & Iron Co., 179 Va. 803 , 20 S.E.2d 504, 1942 Va. LEXIS 276 (1942).

    Provision for extension of lien should be sympathetically considered. —

    The provision in this section providing that the limitation of 20 years could be extended by an endorsement to that effect entered upon the margin of the deed book on which the same was recorded made certain matters which had been uncertain and should receive sympathetic consideration by the courts. Cunningham v. Williams, 178 Va. 542 , 17 S.E.2d 355, 1941 Va. LEXIS 188 (1941).

    Extended lien is not subject to intervening rights. —

    Prior to Acts 1897-98, p. 516, it was possible for parties interested to substitute a new lien for an old one, and a deed of trust or mortgage might be placed upon the same land for the old debt, but the new lien would be subject to such rights of others as might have intervened. Under the present statute, however, there can be no such intervention where the statutory marginal extension is made, as distinguished from the substitution of a new lien for the old. Cunningham v. Williams, 178 Va. 542 , 17 S.E.2d 355, 1941 Va. LEXIS 188 (1941).

    Provision as to death of party is not retroactive. —

    The provision of this section excluding a year on the death of a party from the computation of time in estimating the period in which a suit to enforce a deed of trust would be barred, did not affect the period of limitation within which a deed of trust might be enforced, where the obligation secured by such deed of trust matured prior to the adoption of this provision. Boggs v. Fatherly, 177 Va. 259 , 13 S.E.2d 298, 1941 Va. LEXIS 214 (1941).

    This section has no application where the lien is not a deed of trust or mortgage given to secure the payment of money. Harper v. Harper, 159 Va. 210 , 165 S.E. 490 , 1932 Va. LEXIS 183 (1932).

    Public access to records. —

    Section 2.2-3704, restricting access to information under Virginia’s Freedom of Information Act to Virginia citizens did not abridge the ability of petitioner, an out-of-state searcher for his title company clients, to engage in a common calling in the sense the Privileges and Immunities Clause prohibited and a claim of constitutional violation by defendant state officials for denying the information sought failed; most of the information sought was available through §§ 8.01-241 , 17.1-208 , 55-106, 55-142.1, 58.1-314 , 58.1-908 , 58.1-1805 , 58.1-2021 (A), 58.1-3122 . McBurney v. Young, 569 U.S. 221, 133 S. Ct. 1709, 185 L. Ed. 2d 758, 2013 U.S. LEXIS 3317 (2013).

    When certificate must be recorded. —

    Subsection C as applied by the Virginia Supreme Court, made clear that a certificate must be recorded prior to the expiration of the statute of limitations in order to extend the limitations period. That was not done in this case. Tederick v. US Bank N.A. (In re Tederick), No. 14-10971-RGM, No. (Objection++Proof of, 2015 Bankr. LEXIS 1136 (Bankr. E.D. Va. Apr. 7, 2015).

    CIRCUIT COURT OPINIONS

    Applicability of statute. —

    Statute was not applicable when a holder in due course of deed of trust notes petitioned to foreclose on the subject property because, although the notes stated a maturity date, the lender and the borrower elected, for whatever reason, not to fix the maturity date in the deed of trust. Therefore, the applicable statute of limitations was 20 years from the date of the deed of trust. G&G, LLC v. Thorburn Ltd. P'ship, 103 Va. Cir. 312, 2019 Va. Cir. LEXIS 621 (Fairfax County Oct. 30, 2019).

    Construction with other law. —

    The 2008 and 2009 amendments to § 8.01-241 did not impliedly supersede or repeal § 8.01-242 ; the amendments neither amended § 8.01-242 nor referred expressly to it, there is not such a repugnancy between them that they could have been designed to remain equally in force, their co-existence is not destructive of the object for which the amendments were passed, and the amendments do not embrace the whole subject of § 8.01-242 and were not plainly substituted for it. G&G, LLC v. Thoburn Ltd. P'ship, 106 Va. Cir. 88, 2020 Va. Cir. LEXIS 178 (Fairfax County Sept. 21, 2020).

    Construction of subsections. —

    In context, subsection B of § 8.01-241 is an exception to subsection A of § 8.01-241 , and for subsection B to apply here, subsection A also had to apply; however, subsection A of § 8.01-241 did not apply because the deed of trust did not state a maturity date, and therefore, § 8.01-242 applied. G&G, LLC v. Thoburn Ltd. P'ship, 106 Va. Cir. 88, 2020 Va. Cir. LEXIS 178 (Fairfax County Sept. 21, 2020).

    § 8.01-241.1. Permissible form for certificate.

    Any extension of the limitations of the right to enforce the lien of a deed of trust or mortgage shall conform substantially with the following form:

    CERTIFICATE OF EXTENSION OF LIMITATION OF RIGHT TO ENFORCE DEED OF TRUST OR MORTGAGE Place of Record Date of Deed of Trust/Mortgage Deed Book Book Page Name of Guarantor(s) Name of Trustee(s) Maker(s) of Note Date of Note(s) I/we, the beneficial title holder(s) of the property encumbered by the above mentioned deed of trust/mortgage, do hereby certify that the lien of the same is hereby extended 10 years from the date of my/our endorsement upon this certificate. Beneficial Titleholder/Attorney-in-Fact/Agent Commonwealth of Virginia County/City of : Subscribed, sworn to and acknowledged before me by , this day of , 20 My Commission expires: Notary Public

    Click to view

    History. 1994, c. 547; 2008, c. 226.

    The 2008 amendments.

    The 2008 amendment by c. 226 substituted “10 years” for “twenty years” in the full paragraph of the form.

    Law Review.

    For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

    § 8.01-242. Same; when no maturity date is given; credit line deeds of trust.

    No deed of trust or mortgage given to secure the payment of money, other than credit line deeds of trust described in § 55.1-318 , and no lien reserved to secure the payment of unpaid purchase money, in which no date is fixed for the maturity of the debt secured by such deed of trust, mortgage, or lien, shall be enforced after twenty years from the date of the deed of trust, mortgage, or other lien; provided that the period of one year from the death of any party in interest shall be excluded from the computation of time, and provided further that the limitation may be extended by recordation of a certificate within the twenty-year period in the manner set forth in § 8.01-241 . No credit line deed of trust described in § 55.1-318 in which no date is fixed for the maturity of the debt secured thereby shall be enforced after forty years from the date of the credit line deed of trust; provided that the period of one year from the death of any party in interest shall be excluded from the computation of time.

    History. Code 1950, § 8-12; 1977, c. 617; 1994, c. 547; 1999, c. 788.

    Editor’s note.

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “55.1-318” for “55-58.2.”

    The 1999 amendment inserted “other than credit line deeds of trust described in § 55-58.2” near the beginning of the first sentence, and added the second sentence.

    Law Review.

    For survey article on judicial decisions in real estate law from June 1, 2002 through June 1, 2003, see 38 U. Rich. L. Rev. 223 (2003).

    Michie’s Jurisprudence.

    For related discussion, see 13A M.J. Mortgages and Deeds of Trust, § 166.

    CASE NOTES

    Junior lienor was a party in interest. —

    Junior lienor, who was the mortgagor of the property which was the subject of the foreclosure and the holder of a second deed of trust which secured his note, was a necessary party, as well as a party in interest to foreclosure suit for the purposes of this section; therefore, his death extended the statute of limitations by one year, as provided in this section. Allen v. Chapman, 242 Va. 94 , 406 S.E.2d 186, 7 Va. Law Rep. 2865, 1991 Va. LEXIS 119 (1991).

    Federal agency’s immunity did not apply to private trustee. —

    Although § 8.01-242 could not bar a federal agency, such as the United States Small Business Administration, from initiating foreclosure proceedings on real property, a private entity (a trustee) to which the Administration assigned a deed of trust did not, merely by virtue of that assignment, enjoy the same immunity from the statute of limitation. Long, Long & Kellerman, P.C. v. Wheeler, 264 Va. 531 , 570 S.E.2d 822, 2002 Va. LEXIS 152 (2002).

    Foreclosure action was time-barred. —

    Where a deed of trust contained no maturity date, the 20-year statute of limitation set forth in § 8.01-242 applied and barred a trustee’s action to foreclose on the deed of trust where the foreclosure action was initiated more than 20 years after the date of the deed of trust. Long, Long & Kellerman, P.C. v. Wheeler, 264 Va. 531 , 570 S.E.2d 822, 2002 Va. LEXIS 152 (2002).

    CIRCUIT COURT OPINIONS

    Applicability. —

    In context, subsection B of § 8.01-241 is an exception to subsection A of § 8.01-241 , and for subsection B to apply here, subsection A also had to apply; however, subsection A of § 8.01-241 did not apply because the deed of trust did not state a maturity date, and therefore, § 8.01-242 applied. G&G, LLC v. Thoburn Ltd. P'ship, 106 Va. Cir. 88, 2020 Va. Cir. LEXIS 178 (Fairfax County Sept. 21, 2020).

    Statute applies to a deed of trust in which the maturity date of the underlying note is not found in the deed of trust. G&G, LLC v. Thoburn Ltd. P'ship, 106 Va. Cir. 88, 2020 Va. Cir. LEXIS 178 (Fairfax County Sept. 21, 2020).

    Construction with other law. —

    The 2008 and 2009 amendments to § 8.01-241 did not impliedly supersede or repeal § 8.01-242 ; the amendments neither amended § 8.01-242 nor referred expressly to it, there is not such a repugnancy between them that they could have been designed to remain equally in force, their co-existence is not destructive of the object for which the amendments were passed, and the amendments do not embrace the whole subject of § 8.01-242 and were not plainly substituted for it. G&G, LLC v. Thoburn Ltd. P'ship, 106 Va. Cir. 88, 2020 Va. Cir. LEXIS 178 (Fairfax County Sept. 21, 2020).

    Foreclosure action was time-barred. —

    Holder in due course of deed of trust notes was not time-barred from foreclosing when the debtor filed bankruptcy petitions, which were dismissed, because, although the notes stated a maturity date, the lender and the borrower elected not to fix a maturity date in the deed of trust. Accordingly, the action was timely filed as the applicable statute of limitations was 20 years from the date of the deed of trust and the filings of the bankruptcy petitions by the borrower tolled the statute of limitations when bankruptcy proceedings were pending. G&G, LLC v. Thorburn Ltd. P'ship, 103 Va. Cir. 312, 2019 Va. Cir. LEXIS 621 (Fairfax County Oct. 30, 2019).

    Article 3. Personal Actions Generally.

    § 8.01-243. Personal action for injury to person or property generally; extension in actions for malpractice against health care provider.

    1. Unless otherwise provided in this section or by other statute, every action for personal injuries, whatever the theory of recovery, and every action for damages resulting from fraud, shall be brought within two years after the cause of action accrues.
    2. Every action for injury to property, including actions by a parent or guardian of an infant against a tort-feasor for expenses of curing or attempting to cure such infant from the result of a personal injury or loss of services of such infant, shall be brought within five years after the cause of action accrues. An infant’s claim for medical expenses pursuant to subsection B of § 8.01-36 accruing on or after July 1, 2013, shall be governed by the applicable statute of limitations that applies to the infant’s cause of action.
    3. The two-year limitations period specified in subsection A shall be extended in actions for malpractice against a health care provider as follows:
      1. In cases arising out of a foreign object having no therapeutic or diagnostic effect being left in a patient’s body, for a period of one year from the date the object is discovered or reasonably should have been discovered;
      2. In cases in which fraud, concealment, or intentional misrepresentation prevented discovery of the injury within the two-year period, for one year from the date the injury is discovered or, by the exercise of due diligence, reasonably should have been discovered; and
      3. In a claim for the negligent failure to diagnose a malignant tumor, cancer, or an intracranial, intraspinal, or spinal schwannoma, for a period of one year from the date the diagnosis of a malignant tumor, cancer, or an intracranial, intraspinal, or spinal schwannoma is communicated to the patient by a health care provider, provided that the health care provider’s underlying act or omission was on or after July 1, 2008, in the case of a malignant tumor or cancer or on or after July 1, 2016, in the case of an intracranial, intraspinal, or spinal schwannoma. Claims under this section for the negligent failure to diagnose a malignant tumor or cancer, where the health care provider’s underlying act or omission occurred prior to July 1, 2008, shall be governed by the statute of limitations that existed prior to July 1, 2008. Claims under this section for the negligent failure to diagnose an intracranial, intraspinal, or spinal schwannoma, where the health care provider’s underlying act or omission occurred prior to July 1, 2016, shall be governed by the statute of limitations that existed prior to July 1, 2016.However, the provisions of this subsection shall not apply to extend the limitations period beyond 10 years from the date the cause of action accrues, except that the provisions of subdivision A 2 of § 8.01-229 shall apply to toll the statute of limitations in actions brought by or on behalf of a person under a disability.
    4. Every action for injury to the person, whatever the theory of recovery, resulting from sexual abuse occurring during the infancy or incapacity of the person as set forth in subdivision 6 of § 8.01-249 shall be brought within 20 years after the cause of action accrues.
    5. Every action for injury to property brought by the Commonwealth against a tort-feasor for expenses arising out of the negligent operation of a motor vehicle shall be brought within five years after the cause of action accrues.

    D1. For a cause of action accruing on or after July 1, 2020, every action for injury to the person, whatever the theory of recovery, resulting from sexual abuse, other than those actions specified in subsection D, shall be brought within 10 years after the cause of action accrues.

    History. Code 1950, § 8-24; 1954, c. 589; 1973, c. 385; 1977, c. 617; 1986, cc. 389, 454; 1987, cc. 294, 645, 679; 2008, c. 175; 2011, cc. 617, 641; 2013, cc. 551, 689; 2014, c. 586; 2016, c. 190; 2020, c. 1125.

    REVISERS’ NOTE

    Subsection A is substantially the first sentence of former § 8-24. Subsection B takes the 5-year limitation of the second sentence of former § 8-24 and applies it to all tort actions for injury to property. This includes a parent’s action for expenses or loss of services of an infant. See Moses v. Akers, 203 Va. 130 , 122 S.E.2d 864 (1961); Watson v. Daniel, 165 Va. 564 , 183 S.E. 183 (1936); Cf. § 8.01-36 . The one-year limitation in former § 8-24 for certain tort actions involving injury to property has been eliminated. See Revisers’ note to § 8.01-25 .

    The section does not apply to claims for injuries to property resulting from breach of contract. See, e.g., § 8.01-246 .

    Cross references.

    As to the survival of actions, see §§ 8.01-25 and 8.01-56 .

    As to limitation of action for unauthorized use of name or picture, see § 8.01-40 .

    As to actions for death by wrongful act, see § 8.01-50 et seq.

    As to actions for medical malpractice on behalf of a person who was a minor at the time of accrual of the cause of action, see § 8.01-243.1 .

    The 2008 amendments.

    The 2008 amendment by c. 175 added subdivision C 3 and made related changes.

    The 2011 amendments.

    The 2011 amendments by cc. 617 and 641 are identical, and added subsection D.

    The 2013 amendments.

    The 2013 amendments by cc. 551 and 689 are identical, and added the last sentence in subsection B; and substituted “subdivision A 2 of § 8.01-229 ” for “§ 8.01-229 A 2” in the last paragraph in subsection C.

    The 2014 amendments.

    The 2014 amendment by c. 586 added subsection E.

    The 2016 amendments.

    The 2016 amendments by c. 190, rewrote the first paragraph of subdivision C 3, which read “In a claim for the negligent failure to diagnose a malignant tumor or cancer, for a period of one year from the date the diagnosis of a malignant tumor or cancer is communicated to the patient by a health care provider, provided the health care provider’s underlying act or omission was on or after July 1, 2008. Claims under this section for the negligent failure to diagnose a malignant tumor or cancer, where the health care provider’s underlying act or omission occurred prior to July 1, 2008, shall be governed by the statute of limitations that existed prior to July 1, 2008.”

    The 2020 amendments.

    The 2020 amendment by c. 1125 inserted subsection D1.

    Law Review.

    For survey of Virginia law on torts for the year 1967-1968, see 54 Va. L. Rev. 1649 (1968).

    For survey of Virginia law on torts for the year 1970-1971, see 57 Va. L. Rev. 1501 (1971).

    For survey of Virginia law on insurance for the year 1970-1971, see 57 Va. L. Rev. 1608 (1971).

    For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973).

    For note discussing a state-incarcerated felon’s capacity to sue under 42 U.S.C. § 1983 in federal courts despite prohibitive state statutes, see 30 Wash. & Lee L. Rev. 329 (1973).

    For survey of Virginia developments in constitutional law for the year 1974-1975, see 61 Va. L. Rev. 1677 (1975).

    For survey of Virginia law on practice and pleading for the year 1974-1975, see 61 Va. L. Rev. 1799 (1975).

    For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

    For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

    For comment, “Toward a Uniform State Product Liability Law — Virginia and the Uniform Product Liability Act,” see 36 Wash. & Lee L. Rev. 1145 (1979).

    For note, “Virginia Should Adopt Strict Tort Recovery in Products Liability Suits Involving Personal Injury,” see 14 U. Rich. L. Rev. 391 (1980).

    For survey of Virginia law on practice and pleading for the year 1978-1979, see 66 Va. L. Rev. 343 (1980).

    For article discussing statutes of limitation and repose in toxic substances litigation, see 16 U. Rich. L. Rev. 247 (1982).

    For article, “Products Liability and the Virginia Statute of Limitations — A Call for the Legislative Rescue Squad,” see 16 U. Rich. L. Rev. 323 (1982).

    For comment on statutes of limitations applicable in legal malpractice actions, see 16 U. Rich. L. Rev. 907 (1982).

    For comment, “Statutes of Limitations in Occupational Disease Cases: Is Locke v. Johns-Manville a Viable Alternative to the Discovery Rule?,” see 39 Wash. & Lee L. Rev. 263 (1982).

    For article, “Virginia’s Statute of Limitations for Section 1983 Claims After Wilson v. Garcia,” see 19 U. Rich. L. Rev. 257 (1985).

    For article, “Civil Rights and ‘Personal Injuries’: Virginia’s Statute of Limitations for Section 1983 Suits,” see 26 Wm. & Mary L. Rev. 199 (1985).

    For note on a suggested remedy for toxic injury: Class actions, epidemiology, and economic efficiency, see 26 Wm. & Mary L. Rev. 497 (1985).

    For 1987 survey of Virginia civil procedure and practice, see 21 U. Rich. L. Rev. 667 (1987).

    For survey on medical malpractice in Virginia for 1989, see 23 U. Rich. L. Rev. 731 (1989).

    For an article, “Civil Practice and Procedure,” see 32 U. Rich. L. Rev. 1009 (1998).

    For an article on federal product liability reform legislation’s consistency with Virginia law, see 4 Geo. Mason L. Rev. 279 (1996).

    For 2003/2004 survey of real estate and land use law, see 39 U. Rich. L. Rev. 357 (2004).

    For annual survey commentary, “Accrual of Causes of Action in Virginia,” see 41 U. Rich. L. Rev. 15 (2006).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

    For article on medical malpractice law for the year 2007-2008, see 43 U. Rich. L. Rev. 227 (2008).

    For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

    For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

    For annual survey article, “Civil Practice and Procedure,” see 46 U. Rich. L. Rev. 9 (2011).

    For Survey article, “Civil Practice and Procedure,” see 48 U. Rich. L. Rev. 1 (2013).

    Research References.

    Damages in Tort Actions (Matthew Bender). Conason, Deutsch, and Raffa.

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Automobiles, § 78.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Purpose. —

    Statutes of limitation are designed to compel the prompt assertion of an accrued right of action; not to bar such a right before it has accrued. Locke v. Johns-Manville Corp., 221 Va. 951 , 275 S.E.2d 900, 1981 Va. LEXIS 233 (1981).

    Virginia’s statute of limitations for fraud most closely resembles the federal policies reflected in the Lanham Act of prohibiting fraudulent advertising and addressing claims of deception and misrepresentation, constituting trademark infringement and unfair competition. Unlimited Screw Prods., Inc. v. Malm, 781 F. Supp. 1121, 1991 U.S. Dist. LEXIS 19023 (E.D. Va. 1991).

    Statute is procedural rather than substantive. —

    The Virginia two-year personal injury statute of limitations, unlike the two-year wrongful death statute of limitations, is procedural rather than substantive. Riddle v. Shell Oil Co., 764 F. Supp. 418, 1990 U.S. Dist. LEXIS 19448 (W.D. Va. 1990).

    Under the new statutory scheme, survivability no longer is germane in determining which statute of limitations applies. Section 8.01-25 provides that all causes of action survive the death of the plaintiff or defendant. Moreover, the problem of determining direct or indirect injury has been eliminated. Former § 64.1-145 provides, in part, that: “Any action at law for damages for the . . . destruction of, or damage to any estate of or by the decedent, whether such damage be direct or indirect, may be maintained by or against the decedent’s personal representative. Any such action shall survive pursuant to § 8.01-25 .” Now, under the straightforward provisions of subsection B of this section, “[e]very” action for “injury to property” is governed by a five-year statute of limitations. Pigott v. Moran, 231 Va. 76 , 341 S.E.2d 179, 1986 Va. LEXIS 166 (1986).

    “Injury.” —

    In applying subsection A of this section, the Virginia Supreme Court interprets “injury” in the same manner as that word is construed to determine when a cause of action for personal injuries accrues: a positive, physical or mental hurt to the claimant. Purcell v. Tidewater Constr. Corp., 250 Va. 93 , 458 S.E.2d 291, 1995 Va. LEXIS 86 (1995).

    Continuing treatment rule. —

    The rule of decision in Farley v. Goode, 219 Va. 969 , 252 S.E.2d 594 (1979) and Fenton v. Danaceau, 220 Va. 1 , 255 S.E.2d 349 (1979) was not that the negligence of the defendant physician extended until the physician-patient relationship ended. Instead, the rule of decision was that if there existed a physician-patient relationship where the patient was treated for the same or related ailments over a continuous and uninterrupted course, then the plaintiff could wait until the end of that treatment to complain of any negligence which occurred during that treatment. Thus, within the confines of Farley, Fenton, and this opinion, Virginia has a true continuing treatment rule. Grubbs v. Rawls, 235 Va. 607 , 369 S.E.2d 683, 4 Va. Law Rep. 3129, 1988 Va. LEXIS 79 (1988).

    Plaintiff substantially interrupted her physician-patient relationship with the defendant when she sought treatment and examination for her condition from another physician and broke the continuity of her treatment by the defendant; thus she could not claim the benefit of the continuous treatment rule, even though she later returned to the defendant for treatment of the same condition. Bennett v. Clark, 69 F. Supp. 2d 809, 1999 U.S. Dist. LEXIS 15620 (E.D. Va. 1999).

    In an emergency department patient’s medical malpractice action against an emergency medicine professional association, the district court properly granted summary judgment under Fed. R. Civ. P. 56 in favor of the association on the ground that the patient’s claim was barred by Virginia’s two-year statute of limitations under subsection A of this section; the patient’s suit was filed exactly two years after her last visit to the emergency department, but her injury occurred when her intestinal perforation went untreated during the period prior to the last visit. Further, the statute of limitations was not tolled by the continuing treatment doctrine because the discrete and isolated nature of the three emergency department visits was insufficient for the application of the doctrine. Castillo v. Emergency Med. Assocs., P.A., 372 F.3d 643, 2004 U.S. App. LEXIS 11897 (4th Cir. 2004).

    Doctrine of equitable estoppel. —

    Assuming that on the summary judgment record the undisputed evidence reveals no conduct amounting to fraud, this does not entitle defendant to judgment as a matter of law, since under Virginia law, one may be estopped to plead the bar of a statute of limitations by conduct short of fraud, under the general doctrine of equitable estoppel. Under that doctrine, estoppel occurs where the aggrieved party reasonably relied on the words and conduct of the person to be estopped in allowing the limitations period to expire. Barry v. Donnelly, 781 F.2d 1040, 1986 U.S. App. LEXIS 21791 (4th Cir. 1986).

    Product liability action against a drug manufacturer was time-barred under subsection A of § 8.01-243 because plaintiff, who alleged that her breast cancer was caused by a drug, did not file the action within two years of her diagnosis. Tolling was not warranted under the doctrine announced by the Supreme Court in American Pipe because authoritative precedent from the United States Court of Appeals for the Fourth Circuit held that the forum state’s laws regarding American Pipe tolling governed and there was no authority in Virginia jurisprudence for the equitable tolling of a statute of limitations based upon the pendency of a putative class action allegation in another jurisdiction. Flick v. Wyeth LLC, No. 3:12-cv-00007-NKM, 2012 U.S. Dist. LEXIS 78900 (W.D. Va. June 6, 2012).

    With the exception of actions based on federally created rights, the Virginia Supreme Court has not applied subsection A of this section to a cause of action which did not involve either mental or physical injury to the body. Purcell v. Tidewater Constr. Corp., 250 Va. 93 , 458 S.E.2d 291, 1995 Va. LEXIS 86 (1995).

    Federal court did not create statute of limitations in Oman v. Johns-Manville Corp., 764 F.2d 224 (4th Cir.), cert. denied, 474 U.S. 970, 106 S. Ct. 351, 88 L. Ed. 2d 319 (1985), but narrowed the scope of admiralty jurisdiction such that Virginia’s preexisting statute of limitations, this section, now controls. Grimes v. Owens-Corning Fiberglass Corp., 843 F.2d 815, 1988 U.S. App. LEXIS 4428 (4th Cir.), cert. denied, 488 U.S. 889, 109 S. Ct. 221, 102 L. Ed. 2d 211, 1988 U.S. LEXIS 4469 (1988).

    Conduct both before and after expiration of limitations period. —

    In case in which a casino owner asserted that defendant companies’ use in American commerce of the term “Casino de Monte Carlo” in disputed domain names and on various websites constituted trademark infringement in violation of the Lanham Act, specifically 15 U.S.C.S. § 1125(a), even though some disputed internet domain names had been registered by the plaintiffs more than two years prior to the filing of the complaint, the action regarding those names was timely, given that the plaintiffs’ other infringing conduct, i.e., using domain names to infringe the defendant’s mark, offering the disputed domain names for sale, and maintaining websites that contained material infringing the defendant’s mark, occurred within two years of the filing of the complaint. Int'l Bancorp, L.L.C. v. Societe des Bains de Mer et du Cercle des Etrangers a Monaco, 192 F. Supp. 2d 467, 2002 U.S. Dist. LEXIS 5571 (E.D. Va. 2002), aff'd, 329 F.3d 359, 2003 U.S. App. LEXIS 9566 (4th Cir. 2003).

    Pleading and practice. —

    In a contract dispute between an equipment lessor and a lessee, dismissal of the lessee’s fraud counterclaim was not warranted, because, inter alia, a factual issue regarding the time of accrual existed as to whether the statute of limitations barred the fraud claim. Xerox Corp. v. Global Printing, Inc., No. 1:05cv884, 2005 U.S. Dist. LEXIS 25624 (E.D. Va. Oct. 25, 2005).

    Complaints timely, even though filed before nonsuit orders. —

    Dismissal of later actions as untimely was error because, under subdivision E 3 of § 8.01-229 , a new action had to be filed within six months from the date of the nonsuit order in a prior action; because the complaints were refiled within six months of nonsuit orders, they were timely, even though the second complaints were filed before the nonsuit orders in prior case. Laws v. McIlroy, 283 Va. 594 , 724 S.E.2d 699, 2012 Va. LEXIS 85 (2012).

    Tolling. —

    Products liability suit was time-barred because subdivision E 1 of § 8.01-229 did not toll the statute of limitations for unnamed putative class members due to the pendency of a putative class action in another jurisdiction and Virginia did not recognize equitable tolling of a statute of limitations based on those circumstances; as Virginia did not recognize class actions, a class representative was not recognized as having standing to sue in a representative capacity on behalf of a putative class and, thus, under Virginia law, there was no identity of parties between the named plaintiff in a putative class action and putative class members suing individually in a later action. For tolling to be allowed under subdivision E 1 of § 8.01-229 , the later filed case had to be filed by the same party in interest, and thus this section did not toll the statute of limitations for unnamed putative class members under these circumstances. Casey v. Merck & Co., 283 Va. 411 , 722 S.E.2d 842, 2012 Va. LEXIS 48 (2012).

    B.Proceedings to Which Section Applicable.
    1.In General.

    Object of litigation, not form of suit, governs. —

    It is the object of litigation which determines the applicability of a statute of limitations, not the form in which the suit is instituted. Chesapeake Bay Found., Inc. v. Virginia State Water Control Bd., 501 F. Supp. 821, 1980 U.S. Dist. LEXIS 17366 (E.D. Va. 1980).

    For purposes of statute of limitations, there is but a single, indivisible cause of action for all injuries sustained, whether or not all of the damage is immediately apparent. Joyce v. A.C. & S., Inc., 785 F.2d 1200, 1986 U.S. App. LEXIS 22853 (4th Cir. 1986).

    The statute of limitations does not accrue separately for each set of damages that results from a wrongful act. Once a cause of action is complete and the statute of limitations begins to run, it runs against all damages resulting from the wrongful act, even damages which may not arise until a future date. Brown v. ABC, 704 F.2d 1296, 1983 U.S. App. LEXIS 28923 (4th Cir. 1983).

    In Virginia, a statute of limitations does not accrue separately for each set of damages resulting from a wrongful act. The statute of limitations runs against all damages, including damages that do not arise until a future date. Granahan v. Pearson, 782 F.2d 30, 1985 U.S. App. LEXIS 26108 (4th Cir. 1985).

    Third-party plaintiff claim. —

    “Because of the bar of the statute of limitations, the injured person did not have an enforceable cause of action against the party from whom contribution is sought” and, therefore, third-party plaintiff was similarly barred in his claim against third-party defendant. Smith-Moore Body Co. v. Heil Co., 603 F. Supp. 354, 1985 U.S. Dist. LEXIS 22301 (E.D. Va. 1985).

    Tolling provision for minor’s claim inapplicable to parent’s claim. —

    The statute of limitations tolling provision for a minor’s claim does not apply to a parent’s claim for medical expenses and emotional distress stemming from the same incident of alleged malpractice; the parent’s claims are subject to the limitation period of subsection (B). Perez ex rel. Perez v. Espinola, 749 F. Supp. 732, 1990 U.S. Dist. LEXIS 15150 (E.D. Va. 1990).

    Fraud claims. —

    Fraud claim was barred by the statute of limitations as the fraud alleged by the employee arose at the date the employment relationship between the parties was severed — November 19, 2002 — and she filed her motion for judgment on February 14, 2005, and it was apparent that the employee could not prove that she reasonably relied on any alleged misrepresentations made by the employer. Mizell v. Sara Lee Corp., No. 2:05cv129, 2005 U.S. Dist. LEXIS 36988 (E.D. Va. June 9, 2005), aff'd, 158 Fed. Appx. 424, 2005 U.S. App. LEXIS 27217 (4th Cir. 2005).

    Because the question of whether a patentee exercised due diligence in discovering a computer manufacturer’s alleged misrepresentation regarding its plan to enter into a contract to purchase the patentee’s product depended upon the facts of the case, it would have been premature to grant the manufacturer’s motion to dismiss the patentee’s intentional misrepresentation claim based on the two-year limitations period established under § 8.01-243 and subdivision 1 of § 8.01-249 . GIV, LLC v. IBM, No. 3:07CV067-HEH, 2007 U.S. Dist. LEXIS 30168 (E.D. Va. Apr. 24, 2007).

    Maritime torts. —

    When general maritime claims are at issue, the equity rule of laches, rather than any rigid statute of limitations, governs. Moore v. Exxon Transp. Co., 502 F. Supp. 583, 1980 U.S. Dist. LEXIS 9539 (E.D. Va. 1980).

    Wrongful discharge. —

    The one-year statute of limitations under this section applied to plaintiff’s wrongful discharge claims, regardless of the fact that plaintiffs alleged in two counts that the wrongful discharge caused damages in the form of emotional and physical harm. Michael v. Sentara Health Sys., 939 F. Supp. 1220, 1996 U.S. Dist. LEXIS 14876 (E.D. Va. 1996).

    Where plaintiffs argued that the two-year statute of limitations applied to their claims because the two-year statute of limitations for personal injury suits was applicable for causes of action based on federally created rights, the two counts in question were claims for wrongful discharge, not for breach of contract, personal injury, or violation of any federal statute. Thus, the exception for claims dependent upon “federally created rights” did not help plaintiffs. Michael v. Sentara Health Sys., 939 F. Supp. 1220, 1996 U.S. Dist. LEXIS 14876 (E.D. Va. 1996).

    Wrongful termination. —

    Where suit for wrongful termination was not a suit for a “positive, physical or mental hurt” and plaintiff advanced no other applicable limitation period, cause of action for wrongful termination was subject to the limitation period established in § 8.01-248 . Purcell v. Tidewater Constr. Corp., 250 Va. 93 , 458 S.E.2d 291, 1995 Va. LEXIS 86 (1995).

    Trademark infringement. —

    The two-year statute of limitations under this section applies to claims of trademark infringement. Teaching Co. Ltd. Partnership v. Unapix Entertainment, Inc., 87 F. Supp. 2d 567, 2000 U.S. Dist. LEXIS 3051 (E.D. Va. 2000).

    Wrongful death. —

    In a wrongful death case brought pursuant to § 8.01-244 in which a personal representative filed an objection to a magistrate judge’s order denying her motion for leave to amend the complaint to add a prison health service company as a defendant, the two-year limitations period under §§ 8.01-243 and 8.01-244 had passed, and the cause of action against the company could not be related back to the original filing of the lawsuit. The company had not received notice of the original complaint such that it would not be prejudiced in maintaining a defense; in the first three and a half years following the inmate’s death, the personal representative, at no point, served the company with any notice of a potential cause of action against it. Everett v. Cherry, 671 F. Supp. 2d 819, 2009 U.S. Dist. LEXIS 109983 (E.D. Va. 2009), aff'd, 412 Fed. Appx. 604, 2011 U.S. App. LEXIS 4234 (4th Cir. 2011).

    False advertising. —

    Analogous Virginia limitation period for a false advertising claim under the Lanham Act is the limitations period under Virginia’s action for fraud, subsection A of § 8.01-243 , which has a two-year limitations period. PBM Prods., LLC v. Mead Johnson Nutrition Co., 678 F. Supp. 2d 390, 2009 U.S. Dist. LEXIS 119755 (E.D. Va. 2009), aff'd, 639 F.3d 111, 2011 U.S. App. LEXIS 8084 (4th Cir. 2011).

    Section not applicable to private actions under federal securities law. —

    The two-year limitations period of the Virginia “blue sky law,” rather than the five-year limitation of subsection B of this section, applies to private actions under § 10(b) of the Securities Exchange Act of 1934, § 10(b), 15 U.S.C. § 78j(b) because the “blue sky law” addresses the problem of misinformation in securities transactions, the policy concern of § 10(b). Gurley v. Documation, Inc., 674 F.2d 253, 1982 U.S. App. LEXIS 20785 (4th Cir. 1982).

    Not applicable. —

    Two-year limitation period in a policy of insurance was an affirmative defense that was waived under Fed. R. Civ. P. 81(c), by defendant insurer’s failure to raise it as an affirmative defense when plaintiff insured’s state court action was removed to federal court, thus, while the district court was correct in granting the insured’s motion for summary judgment, the district court incorrectly applied §§ 8.01-235 , 8.01-243 and 8.01-246 , which had no application, because in Virginia contractual and statutory limitations were not the same, and the federal rules applied in the removed action. S. Wallace Edwards & Sons, Inc. v. Cincinnati Ins. Co., 353 F.3d 367, 2003 U.S. App. LEXIS 26267 (4th Cir. 2003).

    2.Personal Injuries.

    Editor’s note.

    Some of the cases below were decided prior to the 1986 amendment to this section, which added subsection C.

    Action for all damages resulting from tortious conduct must be brought within two years of the time in which competent medical evidence can pinpoint when the plaintiff was hurt. Joyce v. A.C. & S., Inc., 591 F. Supp. 449, 1984 U.S. Dist. LEXIS 14839 (W.D. Va. 1984), aff'd, 785 F.2d 1200, 1986 U.S. App. LEXIS 22853 (4th Cir. 1986).

    Date on which statute of limitations begins to run is the date when the injury is received, notwithstanding that the plaintiff may sustain more substantial injuries at a later date. Wade v. Danek Medical Inc., 5 F. Supp. 2d 379, 1998 U.S. Dist. LEXIS 7526 (E.D. Va. 1998), aff'd, 182 F.3d 281, 1999 U.S. App. LEXIS 14887 (4th Cir. 1999).

    The limitations period begins to run when the injury, no matter how slight, is sustained and regardless of whether more substantial injuries occur later, it is immaterial that all injuries may not have occurred at the time of the initial negligent act; the running of the statute is not postponed by later additional injury. Smith v. Danek Med., Inc., 47 F. Supp. 2d 698, 1998 U.S. Dist. LEXIS 22053 (W.D. Va. 1998).

    Virginia does not follow a discovery rule in applying the statute of limitations; the statute of limitations begins to run at the date of the injury, even if no diagnosis was made or communicated to the plaintiff until later. Smith v. Danek Med., Inc., 47 F. Supp. 2d 698, 1998 U.S. Dist. LEXIS 22053 (W.D. Va. 1998).

    Because a diocese was not a “natural person” as defined by Va. Const., Art. IV, § 14, para. 4, § 8.01-249 6 did not apply; therefore, because the plaintiff’s sexual abuse cause of action accrued when it occurred, not when it was discovered, the trial court properly dismissed it as untimely under subsection A of § 8.01-243 . Kopalchick v. Catholic Diocese of Richmond, 274 Va. 332 , 645 S.E.2d 439, 2007 Va. LEXIS 84 (2007).

    All claims except plaintiff drug purchaser’s fraud claim against defendant pharmaceutical company would have been time-barred because they accrued pursuant to § 8.01-230 as of the date of injury (or when she was diagnosed with breast cancer and not when she discovered that her cancer was related to taking defendant’s drug), in the absence of a cross-jurisdictional tolling rule applicable to federal class action suits. The statute of limitations was tolled for all claims by operation of subdivision E 1 of § 8.01-229 based on a previously filed class action suit in federal court of which plaintiff was a putative member, and the tolling brought all claims within § 8.01-243 ’s two-year filing window since the Supreme Court of Virginia had concluded that the sweeping language of subdivision E 1 of § 8.01-229 allowed tolling of prior suits arising in both state and federal courts. Torkie-Tork v. Wyeth, 739 F. Supp. 2d 887, 2010 U.S. Dist. LEXIS 60630 (E.D. Va. 2010).

    Virginia law does not calculate statute of limitations in personal injury from the date of diagnosis. Wade v. Danek Medical Inc., 5 F. Supp. 2d 379, 1998 U.S. Dist. LEXIS 7526 (E.D. Va. 1998), aff'd, 182 F.3d 281, 1999 U.S. App. LEXIS 14887 (4th Cir. 1999).

    “Completion” of injuries. —

    Where the plaintiff’s injuries are “complete” more than two years before suit, the action is untimely. Large v. Bucyrus-Erie Co., 524 F. Supp. 285, 1981 U.S. Dist. LEXIS 15228 (E.D. Va. 1981).

    The statute of limitations cannot begin to run against a claim until all the elements of the cause of action exist and that one of the essential elements of a cause of action for personal injury is the injury itself. Brown v. ABC, 704 F.2d 1296, 1983 U.S. App. LEXIS 28923 (4th Cir. 1983).

    Injury occurring in another state. —

    Virginia’s two-year statute of limitations, subsection A of § 8.01-243 , barred a Florida patient’s action against an Indiana manufacturer of a hip implant. Although the injury occurred in Florida, Virginia law applied because Virginia was the state where the product was delivered and where all the significant medical services were rendered. Chapman v. DePuy Orthopedics, Inc., 760 F. Supp. 2d 1310, 2011 U.S. Dist. LEXIS 4510 (M.D. Fla. 2011).

    Unlawful searches and seizures. —

    Under Virginia law, an unlawful search and seizure is characterized as a personal injury, not an injury to property; thus the applicable statute of limitations is two years under this section. Samuel v. Rose's Stores, Inc., 907 F. Supp. 159, 1995 U.S. Dist. LEXIS 19639 (E.D. Va. 1995).

    Unlawful search and seizure is characterized as a personal injury, rather than an injury to property and the applicable statute of limitations provision is contained in subsection A which sets a two-year time limit for filing an action. Cramer v. Crutchfield, 496 F. Supp. 949, 1980 U.S. Dist. LEXIS 13544 (E.D. Va. 1980), aff'd, 648 F.2d 943, 1981 U.S. App. LEXIS 13360 (4th Cir. 1981).

    False imprisonment cases. —

    The applicable statute of limitations for a claim of false imprisonment, recognized as a personal injury, is two years. Samuel v. Rose's Stores, Inc., 907 F. Supp. 159, 1995 U.S. Dist. LEXIS 19639 (E.D. Va. 1995).

    False imprisonment is a tort committed against an individual’s body because that individual’s body is actually confined to an area and deprived of physical liberty; accordingly, an action for false imprisonment is an action for personal injuries and, thus, subject to the two-year statute of limitations. Jordan v. Shands, 255 Va. 492 , 500 S.E.2d 215, 1998 Va. LEXIS 57 (1998).

    Break of fiduciary duty claims. —

    The one-year personal, not the five-year property, statute of limitations is most appropriate for a breach of fiduciary duty cause of action. FDIC v. Cocke, 7 F.3d 396, 1993 U.S. App. LEXIS 26830 (4th Cir. 1993), cert. denied, 513 U.S. 807, 115 S. Ct. 53, 130 L. Ed. 2d 12, 1994 U.S. LEXIS 5412 (1994).

    Breach of duty of confidentiality. —

    Since the breach of the duty of confidentiality is a personal injury and no other statute provides an alternate limitations period, such an action must be brought within two years from the date the cause of action accrued. Bullion v. Gadaleto, 872 F. Supp. 303, 1995 U.S. Dist. LEXIS 219 (W.D. Va. 1995).

    Products liability cases. —

    Actions under state law grounded in a personal injury-products liability factual pattern are governed by the torts statute, which runs from the time of injury. Bly v. Otis Elevator Co., 713 F.2d 1040, 1983 U.S. App. LEXIS 25185 (4th Cir. 1983), different results reached on reh'g, 754 F.2d 1111, 1985 U.S. App. LEXIS 28168 (4th Cir. 1985).

    Product liability action against a drug manufacturer was time-barred under subsection A of § 8.01-243 because plaintiff, who alleged that her breast cancer was caused by a drug, did not file the action within two years of her diagnosis and tolling was not warranted under subsection D of § 8.01-229 where the manufacturer’s conduct did not obstruct plaintiff’s filing of the action. Flick v. Wyeth LLC, No. 3:12-cv-00007-NKM, 2012 U.S. Dist. LEXIS 78900 (W.D. Va. June 6, 2012).

    Where it was undisputed that plaintiff was “hurt” as early as 1970 with asbestos-related injury, his suit, brought in 1983, for any and all asbestos-related injuries was barred by this section. Joyce v. A.C. & S., Inc., 591 F. Supp. 449, 1984 U.S. Dist. LEXIS 14839 (W.D. Va. 1984), aff'd, 785 F.2d 1200, 1986 U.S. App. LEXIS 22853 (4th Cir. 1986).

    Medical malpractice. —

    Summary judgment was erroneously awarded to defendant in a medical malpractice suit where plaintiff’s allegations as to when injury occurred could have been properly construed so as to fall within the two-year statute of limitations. Renner v. Stafford, 245 Va. 351 , 429 S.E.2d 218, 9 Va. Law Rep. 1174, 1993 Va. LEXIS 76 (1993).

    As a trial court erred in vacating a second nonsuit order entered in favor of a patient in her second malpractice suit against a podiatrist, it also erred in finding that the patient’s third malpractice suit was time barred under subsection A of § 8.01-243 , since it was filed within six months of the entry of the second nonsuit order, as permitted by § 8.01-229 . Janvier v. Arminio, 272 Va. 353 , 634 S.E.2d 754, 2006 Va. LEXIS 88 (2006).

    In a diversity medical malpractice case in which the patient voluntarily nonsuited her state case and added two new claims and defendants, citing the Virginia two-year statute of limitations for personal injury claims, § 8.01-243 , filed a motion to dismiss the federal complaint with respect to the newly-pled claims of failure to perform an alternative procedure and lack of informed consent, all of the patient’s current claims related to a common transaction or occurrence, and therefore constituted a single cause of action. Because her additional claims were included within the nonsuited cause of action, as defined by the nonsuit statute, they were also properly considered as part of the nonsuited action that could be recommenced within six months of the nonsuit, as understood by the nonsuit statute of limitations tolling provision. Dunston v. Huang, 709 F. Supp. 2d 414, 2010 U.S. Dist. LEXIS 22844 (E.D. Va. 2010).

    Trial court erred in dismissing a patient’s medical malpractice suit, alleging that a radiology practice negligently failed to diagnose an abnormality in her brain, on the basis that the suit was filed outside the statute of limitations as a continuous and substantially uninterrupted course of examination and treatment existed between the patient and the practice as each of the seven studies of the scans of the patient’s head and brain, occurring over a three-year period, related to similar symptoms involving pain and numbness on the right side of the patient’s face, and the evidence allowed a finding that the practice was aware of the patient’s ongoing symptoms. The statute of limitations began to run on October 24, 2005, the day that the physician-patient relationship between the practice and the patient ended; thus, her suit, brought on October 12, 2007, was within the statute of limitations. Chalifoux v. Radiology Assocs. of Richmond, Inc., 281 Va. 690 , 708 S.E.2d 834, 2011 Va. LEXIS 87 (2011).

    Action for medical malpractice occurring during continuous and uninterrupted course of treatment. —

    When medical malpractice is claimed to have occurred during a continuous and substantially uninterrupted course of examination and treatment in which a particular illness or condition should have been diagnosed in the exercise of reasonable care, the date of injury occurs, the cause of action for that malpractice accrues, and the statute of limitations commences to run when the improper course of examination, and treatment if any, for the particular malady terminates. Farley v. Goode, 219 Va. 969 , 252 S.E.2d 594, 1979 Va. LEXIS 195 (1979); Large v. Bucyrus-Erie Co., 524 F. Supp. 285, 1981 U.S. Dist. LEXIS 15228 (E.D. Va. 1981).

    Rule presupposes proof as fact of continuous and uninterrupted treatment. —

    The rule that when medical malpractice is claimed to have occurred during a continuous and substantially uninterrupted course of treatment and examination in which a particular illness or condition should have been diagnosed in the exercise of reasonable care, the statute of limitations commences to run when the course of treatment and examination terminates, presupposes that a continuous course of improper examination or treatment which is substantially uninterrupted is proved as a matter of fact. When the malpractice complained of constitutes a single isolated act, however, the statute of limitations commences to run from the date of the injury. Farley v. Goode, 219 Va. 969 , 252 S.E.2d 594, 1979 Va. LEXIS 195 (1979).

    An obstetrician’s negligent failure to properly execute a laparoscopic tubal cauterization on a patient commences the two-year statute of limitations under this section. This statute does not begin anew when the patient later learns that she is pregnant. Irvin v. Burton, 635 F. Supp. 366, 1986 U.S. Dist. LEXIS 25156 (W.D. Va. 1986).

    Wrongful conception. —

    Even though a legal wrong may have occurred in 1989 when the defendants performed the negligent sterilization procedure on plaintiff, no injury under the Locke v. Johns-Manville Corp, 221 Va. 951 , 275 S.E.2d 900 (1981) accrual rule occurred at that time because plaintiff had suffered no “positive, physical or mental hurt” related to her alleged cause of action, wrongful conception. Nunnally v. Artis, 254 Va. 247 , 492 S.E.2d 126, 1997 Va. LEXIS 104 (1997).

    Parents’ claim to recover medical expenses they incurred as a result of the wrongful birth caused by the physicians’ alleged negligent failure to inform them of the fetus’ anomalies was governed by the two-year statute of limitations, instead of five-year statute of limitations because they did not plead and did not have an action for injury to property, rather, they pled that as parents, they were deprived of an informed opportunity to terminate the pregnancy, and thus, their cause of action was personal in nature. Glascock v. Laserna, 247 Va. 208 , 439 S.E.2d 380 (1994).

    Parents could not recover damages for loss of services based upon allegations of wrongful birth because the basis of their claim was that they were deprived of an informed opportunity to terminate the pregnancy instead of allegations that physicians caused “personal injury” to their child. Glascock v. Laserna, 247 Va. 208 , 439 S.E.2d 380 (1994).

    Claim of patient who alleged that her doctor’s failure to remove intrauterine device caused her to become infertile was barred by the two-year statute of limitations, since the statute of limitations began to run from the moment a plaintiff suffered an injury, she was injured when the intrauterine device was allowed to remain in her body, her malpractice claim accrued when her relationship with her doctor ended in 1979, and her malpractice suit commenced in Feb. 1984. Granahan v. Pearson, 782 F.2d 30, 1985 U.S. App. LEXIS 26108 (4th Cir. 1985).

    A parent’s claim for medical expenses is not derivative of her child’s claim for personal injury for statute of limitations purposes. Kerstetter v. United States, 57 F.3d 362, 1995 U.S. App. LEXIS 15526 (4th Cir. 1995).

    And the extinction by reason of the statute of limitations of a child’s claim for personal injury does not itself extinguish her parent’s cause of action for medical expenses. Kerstetter v. United States, 57 F.3d 362, 1995 U.S. App. LEXIS 15526 (4th Cir. 1995).

    Statute not tolled by bankrupt debtor filing claim that belonged to bankruptcy trustee. —

    Accident victim lacked standing to file any of the three personal injury suits he filed against a driver because he had filed for bankruptcy, and the cause of action could only be asserted by the trustee. The victim’s action was a nullity, and the statute of limitations had run before it was filed, pursuant to § 8.01-243 . Kocher v. Campbell, 282 Va. 113 , 712 S.E.2d 477, 2011 Va. LEXIS 133, cert. denied, 565 U.S. 1093, 132 S. Ct. 847, 181 L. Ed. 2d 549, 2011 U.S. LEXIS 8861 (2011).

    Racial discrimination suits under 42 U.S.C. § 2000a. —

    The two-year period of limitations for personal injuries applies to a suit alleging racial discrimination in violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a. Brown v. Loudoun Golf & Country Club, Inc., 573 F. Supp. 399, 1983 U.S. Dist. LEXIS 12702 (E.D. Va. 1983).

    Two-year period of limitations barred plaintiff’s claims that he was injured from each exposure to paint products, prior to two years before filing his suit, but plaintiff’s claims of injuries, that occcurred within the two years of suit, for which he went to the emergency room, were not barred. Williams v. E.I. DuPont de Nemours & Co., 11 F.3d 464, 1993 U.S. App. LEXIS 31996 (4th Cir. 1993).

    Cause of action for emotional distress against a party over its interference with plaintiff’s right to collect unemployment compensation, is governed by the two-year statute of limitations governing actions for personal injury. Welch v. Kennedy Piggly Wiggly Stores, Inc., 63 Bankr. 888 (W.D. Va. 1986).

    Right of action for contribution arises upon discharge of common obligation. —

    Before contribution will lie it is essential that a cause of action by the person injured have existed against the third-party defendant. But if such cause of action existed, the right of action to recover contribution arises upon discharge of the common obligation and the statute of limitations begins to run at that time. In order for contribution to lie, the injured party’s cause of action against the third-party defendant need not be presently enforceable; it merely is necessary that the plaintiff, at some time in the past, have had an enforceable cause of action against the party from whom contribution is sought. Gemco-Ware, Inc. v. Rongene Mold & Plastics Corp., 234 Va. 54 , 360 S.E.2d 342, 4 Va. Law Rep. 431, 1987 Va. LEXIS 245 (1987).

    Where plaintiff was treated jointly by two doctors for a stomach ailment and her condition worsened, plaintiff was entitled to wait until the doctors terminated their treatment before the statute of limitation began to run. Grubbs v. Rawls, 235 Va. 607 , 369 S.E.2d 683, 4 Va. Law Rep. 3129, 1988 Va. LEXIS 79 (1988).

    Claims by a former patient against a professional counselor. —

    Former patient’s injury to property and continuing malpractice claims against a professional counselor, based upon the counselor’s actions during joint therapy sessions involving the patient four years prior to the patient’s complaint were time-barred because if the patient’s injury to property and continuing malpractice claims were classified as for personal injury or for medical malpractice, since both claims were premised upon the alleged breach of duties the counselor owed to the patient as his therapist, his claims were barred by the two-year limitations period under § 8.01-243 A, and, if the patient’s claims were classified as for breach of oral contract, his claims were barred by the three-year limitations period under subdivision 4 of § 8.01-246 . Ranney v. Nelson, 176 Fed. Appx. 405, 2006 U.S. App. LEXIS 9812 (4th Cir. 2006).

    Two-year limitation applies to Bivens and Federal Tort Claims Act claims. —

    U.S. Postal Service customer’s Bivens and Federal Tort Claims Act damage claims against John Doe postal workers could not be maintained, due to lack of subject matter jurisdiction, because none were filed within the applicable statutes of limitations, 28 U.S.C.S. § 2401(b) and § 8.01-243 , respectively. Shelton v. USPO, No. 3:08-CV-399, 2008 U.S. Dist. LEXIS 82720 (E.D. Va. Oct. 16, 2008), aff'd, 326 Fed. Appx. 145, 2009 U.S. App. LEXIS 11789 (4th Cir. 2009).

    Black lung. —

    Where plaintiff suffered from “black lung,” a latent occupational disease marked by fibrosis, or scarring, of the lungs and caused by inhalation of coal dust, the district court properly dismissed his state-law personal injury claims because they were barred by Virginia’s two-year statute of limitations under subsection A of § 8.01-243 ; the undisputed evidence proved to a reasonable degree of medical certainty that he developed coal workers’ pneumoconiosis more than two years before he filed suit. Adams v. Am. Optical Corp., 979 F.3d 248, 2020 U.S. App. LEXIS 35167 (4th Cir. 2020).

    3.Civil Rights Actions.

    Applicable to all civil rights actions. —

    The two-year statute of limitations provided in this section would be applicable to a former railroad brakeman’s cause of action brought under the section of the Civil Rights Act providing for civil action for deprivation of rights and providing for equal rights under the law for all persons within the jurisdiction of the United States. Steward v. Norfolk, F. & D. Ry., 486 F. Supp. 744, 1980 U.S. Dist. LEXIS 10528 (E.D. Va. 1980), aff'd, 661 F.2d 927 (4th Cir. 1981).

    Various civil rights claims alleged by the plaintiffs, which were based on events occurring more than two years before the filing of a civil rights action, including discrimination on the basis of race and denial of the right to equal protection of the law, were barred by this section; this two-year state statute of limitations applies to all actions brought pursuant to Title 42 of the U.S. Code. Friday v. Commonwealth of Va., No. 3:00CV867, 2001 U.S. Dist. LEXIS 9896 (E.D. Va. July 12, 2001).

    Assisted living facility operator’s complaint under 42 U.S.C.S. §§ 1981, 1982, 1983, 2000-d, U.S. Const., amends. V and XIV, and Va. Const., Art. I, §§ 1 and 11, that the facility’s license was revoked due to his race, was barred by the statute of limitations in § 8.01-243 A, because his claims accrued when he had no reasonable expectation that he would receive further information concerning the extent of his injury, which occurred more than two years before he filed his complaint. Smith v. Goodwin, No. 3:03-CV-088, 2003 U.S. Dist. LEXIS 22133 (E.D. Va. May 2, 2003).

    Inmate’s 42 U.S.C.S. § 1983 lawsuit against a sheriff and six sheriff’s department employees based on events that occurred on November 7, 2003, while he was incarcerated in a city jail was timely filed on November 8, 2005, because the two-year statute of limitations period for personal injury actions under § 8.01-243 was applicable to this civil rights suit, and under Fed. R. Civ. P. 6(a), the day of the event that started the two-year limitations period running was not included in the computation of the limitations period. Cornett v. Weisenburger, 454 F. Supp. 2d 544, 2006 U.S. Dist. LEXIS 67734 (W.D. Va. 2006).

    State statute of limitations for personal injury actions usually determines timeliness. —

    The Reconstruction Civil Rights Acts create causes of action where there has been injury, under color of state law, to the person or to the constitutional or federal statutory rights which emanate from or are guaranteed to the person. As a consequence, it is the state statute of limitations for personal injuries which is usually looked to in determining when claims are time-barred. United Steelworkers v. Dalton, 544 F. Supp. 291, 1982 U.S. Dist. LEXIS 15066 (E.D. Va. 1982).

    This section applies to actions under 42 U.S.C. § 1981. White v. City of Suffolk, 460 F. Supp. 516, 1978 U.S. Dist. LEXIS 14932 (E.D. Va. 1978).

    But the local statute of limitations is not applicable when continuous discrimination, rather than a single discriminatory act, is alleged. White v. City of Suffolk, 460 F. Supp. 516, 1978 U.S. Dist. LEXIS 14932 (E.D. Va. 1978).

    Court withheld judgment on an employer’s Fed. R. Civ. P. 12(b)(6) partial motion to dismiss former employees’ claims for race discrimination in violation of 42 U.S.C.S. § 1981 and directed the employees to file an amended complaint that contained factual allegations from which the court could reasonably infer that a continuing violation occurred and had not concluded more than two years before the filing of the complaint. Chisholm v. T.J.X. Cos., 286 F. Supp. 2d 736, 2003 U.S. Dist. LEXIS 18101 (E.D. Va. 2003).

    In 42 U.S.C. § 1983 actions, statutes of limitations are borrowed from state law. United Steelworkers v. Dalton, 544 F. Supp. 291, 1982 U.S. Dist. LEXIS 15066 (E.D. Va. 1982).

    Suits brought pursuant to 42 U.S.C. §§ 1983 and 1985, are governed by this section. Buntin v. Board of Trustees, 548 F. Supp. 657, 1982 U.S. Dist. LEXIS 15038 (W.D. Va. 1982).

    Federal law fixes time right of action accrues. —

    In actions under 42 U.S.C. §§ 1983 and 1985, while the time limitation itself is borrowed from state law, the federal rule fixes the time of accrual of a right of action. Buntin v. Board of Trustees, 548 F. Supp. 657, 1982 U.S. Dist. LEXIS 15038 (W.D. Va. 1982).

    Inmate § 1983 actions. —

    In Virginia § 1983 cases, if an inmate has not delivered his complaint to prison officials for mailing within the two-year period following the time when he knew or had reason to know of his alleged injury, the Virginia statute of limitations bars that inmate from bringing suit about the injury. In this case, since no certificate of mailing accompanied inmate’s complaint, the time of filing was the date at which the action was deemed to have commenced for statute of limitation purposes. Garrett v. Angelone, 940 F. Supp. 933, 1996 U.S. Dist. LEXIS 13008 (W.D. Va. 1996).

    Inmate was barred from obtaining monetary damages or injunctive relief under § 1983 for claims of which he knew or had reason to know before September 14, 1993. Inmate’s filing of earlier discrimination action indicated that he knew or should have known the facts necessary to bring a discrimination claim about events occurring in 1991 through 1993. Garrett v. Angelone, 940 F. Supp. 933, 1996 U.S. Dist. LEXIS 13008 (W.D. Va. 1996).

    Inmate’s claims were barred by the applicable two-year statute of limitations, in subsection A of this section, and as such, the court could summarily dismiss the complaint as frivolous, pursuant to 28 U.S.C.S. § 1915(e)(2). Defendants’ conduct about which the inmate complained occurred between August 2000 and October 2002 and during this time period, the inmate knew sufficient facts about defendants’ failure to provide him with library access or with access to another attorney to bring a constitutional claim that their actions deprived him of the ability to prepare his habeas pleadings; the inmate signed and dated the instant civil rights complaint on December 27, 2005, and delivered it to prison authorities for mailing on December 28, 2005, at the earliest, more than three years after his claims accrued. Al-Musawwir v. Stump, No. 7:05-cv-00800, 2006 U.S. Dist. LEXIS 1114 (W.D. Va. Jan. 9, 2006).

    In a case in which a pro se inmate asserted an Eighth Amendment denial of adequate medical care against a nurse, that claim was barred by the two-year statute of limitations in subsection A of § 8.01-243 . The claim accrued on April 29, 2007, the date he was denied adequate medical care, and the inmate did not file his complaint until August 20, 2010. Brown v. Harris, No. 3:10CV613, 2012 U.S. Dist. LEXIS 124 (E.D. Va. Jan. 3, 2012), aff'd, 472 Fed. Appx. 175, 2012 U.S. App. LEXIS 8535 (4th Cir. 2012).

    In a case in which a pro se inmate filed a 42 U.S.C.S. § 1983, alleging that medical personnel failed to provide her adequate medical care, her complaint was frivolous under 28 U.S.C.S. § 1915A(b)(1) because it was untimely under the two-year statute of limitations in subsection A of § 8.01-243 . Campbell v. Young, No. 7:12CV00233, 2012 U.S. Dist. LEXIS 75134 (W.D. Va. May 31, 2012).

    Action against prison employees. —

    In an action brought pursuant to 42 U.S.C. § 1983 against three former employees of the United States Bureau of Prisons at Petersburg Federal Correctional Institute alleging that they failed to provide plaintiff with a secure and safe place of confinement while he was incarcerated, Virginia law applied to toll the running of the statute of limitations where the plaintiff’s action would have been barred but for the fact that the plaintiff previously had filed a pro se action. Clymer v. Grzegorek, 515 F. Supp. 938, 1981 U.S. Dist. LEXIS 12579 (E.D. Va. 1981).

    In an inmate’s suit against state correctional facility officials, alleging violations of his constitutional rights by denying a certain prayer service and by the provision of only cold meals, which were inadequate as to nutrition and calories, during the celebration of Ramadan, several of these 42 U.S.C.S. § 1983 claims were time-barred because they were governed by a two-year limitations period under subsection A of § 8.01-243 , and the events occurred more than two years before the lawsuit was filed. Couch v. Jabe, 479 F. Supp. 2d 569, 2006 U.S. Dist. LEXIS 68216 (W.D. Va. 2006), dismissed, No. 7:05-cv-00642, 2007 U.S. Dist. LEXIS 98833 (W.D. Va. Mar. 19, 2007).

    In a Bivens action in which a federal inmate alleged that corrections officers violated the inmate’s Eighth Amendment rights by failing to fully decontaminate the inmate after the inmate was subjected to pepper spray and by holding the inmate in restraints for eighteen hours, the inmate’s amended complaint was untimely under subsection A of § 8.01-243 because the complaint was not filed within two years after the inmate’s injuries occurred. However, the amended complaint related back to the inmate’s timely original complaint pursuant to Fed. R. Civ. P. 15(c) because the amended complaint named different defendants as being responsible for the actions described in the original complaint and the timely service of the original complaint on a United States attorney constructively satisfied the notice requirements of Rule 15(c)(1)(C)(i) and (ii). Montgomery v. Johnson, No. 7:05CV00131, 2008 U.S. Dist. LEXIS 74256 (W.D. Va. Sept. 27, 2008).

    Nonrenewal of teaching contract. —

    A federal civil rights action which claimed that a state medical school violated an employee’s due process rights by not renewing her teaching contract, in violation of alleged lifetime tenure property rights, filed some six years after the action accrued, i.e., after the employee learned that her employer retained its faculty exclusively under contracts of various lengths and that there was no lifetime tenure, was time barred, notwithstanding the fact that she did not receive her nonrenewal notice until some two years prior to the filing of her action. Sabet v. Eastern Va. Medical Auth., 611 F. Supp. 388, 1985 U.S. Dist. LEXIS 22387 (E.D. Va.), aff'd, 775 F.2d 1266, 1985 U.S. App. LEXIS 24547 (4th Cir. 1985).

    Continuing violation. —

    Inmate alleged a continuing violation of deliberate indifference to his serious mental illnesses where he alleged that he notified the Virginia Department of Corrections of his mental illnesses during the prison intake process and “repeatedly” sought “help” from officials and medical staff at Red Onion and he asserted that despite this notice to the appellees, and given the ongoing nature of his mental illnesses, appellees violated and continued to violate his rights by failing to provide any treatment or access to a psychiatrist or a psychologist. Depaola v. Clarke, 884 F.3d 481, 2018 U.S. App. LEXIS 5962 (4th Cir. 2018).

    Allegedly improper salary differential was continuing conduct. —

    Action under 42 U.S.C. §§ 1983 and 1985, alleging that salary differential paid to state troopers in Division Seven but not paid to troopers in Division Four was arbitrary and unconstitutional, was not barred by this section, although plaintiffs first became aware of the differential in 1974, since the conduct alleged to be wrongful was continuing in nature. Eldridge v. Bouchard, 620 F. Supp. 678, 1985 U.S. Dist. LEXIS 14323 (W.D. Va. 1985).

    Consequences of failure to promote not continuing violation. —

    Because the plaintiff’s failure-to-promote claim was based on events that occurred more than two years before suit was filed, the plaintiff’s claim was barred by this section even though the plaintiff alleged repeated assignment to menial tasks following the alleged wrongful conduct. The consequences of a failure to promote do not rise to the standards of a continuing violation of § 1981 for purposes of the statute of limitations. Thompson v. Town of Front Royal, No. 5:98CV00083, 2000 U.S. Dist. LEXIS 3876 (W.D. Va. Mar. 16, 2000).

    Decedent’s mother’s federal civil rights and state wrongful death claims against a sheriff in her amended complaint survived dismissal because, although the mother’s claims against the sheriff were filed after the two-year limitations period under §§ 8.01-243 A and 8.01-244 B had expired, the mother’s claims related back to her original complaint, pursuant to Fed. R. Civ. P. 15(c)(3)(B); the sheriff reasonably should have known that he was the proper party to the lawsuit because the mother’s original complaint described the alleged circumstances occurring in the jail over which sheriff had policy-making authority, the county sheriff’s office, of which he was in charge, was named as a party, and the original complaint recited that all of the defendants were sued in their individual capacities. Justus v. County of Buchanan, 498 F. Supp. 2d 883, 2007 U.S. Dist. LEXIS 57583 (W.D. Va. 2007).

    Complaint barred by statute of limitations. —

    Plaintiffs’ 42 U.S.C.S. § 1983 complaint, which asserted that an ordinance regulating their well water system was unconstitutional, was barred by the statute of limitations under subsection A of § 8.01-243 because: (1) the statute of limitations under subsection A of § 8.01-243 applied to 42 U.S.C.S. § 1983 suits challenging the constitutionality of a state ordinance; (2) the complaint was untimely filed because, while it was debatable whether plaintiffs’ civil cases could have tolled the statute under subdivision E 1 of § 8.01-229 , there was no question that a criminal case instituted against one of the plaintiffs would not have satisfied the statutory requirements for tolling, the statute began to run when plaintiffs’ petition for appeal was denied in their most recent civil case, and plaintiffs filed the complaint over two years later; and (3) the continuing violation exception was inapplicable because the harm to plaintiffs occurred when they were found in violation of the zoning ordinance, and the additional violations cited by plaintiffs were merely the county’s attempts to bring plaintiffs into compliance. Miller v. King George County, 277 Fed. Appx. 297, 2008 U.S. App. LEXIS 10224 (4th Cir. 2008).

    Action in which an inmate alleged that defendants violated his constitutional rights by determining that he was ineligible for parole pursuant to subsection B1 of § 53.1-151 was barred by the statute of limitations because the inmate’s complaint was filed more than two years after he learned that he was ineligible for parole and nothing in the record suggested any proper basis to toll the limitations period. Downey v. Johnson, No. 3:08CV199, 2009 U.S. Dist. LEXIS 3894 (E.D. Va. Jan. 19, 2009, aff'd, 326 Fed. Appx. 131, 2009 U.S. App. LEXIS 11595 (4th Cir. 2009), dismissed, No. 3:08CV199, 2009 U.S. Dist. LEXIS 3892 (E.D. Va. Jan. 19, 2009).

    Specific claims dismissed by the district court as barred by the statute of limitations were those claims regarding the events of February 16, 2006, excessive force, due process violations, illegal entry upon property, illegal search and seizure, etc., and the district court did not include the conspiracy claims in its dismissal on statute of limitations grounds, but rather those claims relating solely to the events of February 16, 2006. Thus, to the extent that plaintiff arrestees sought to raise claims in their August 1, 2008, complaint expressly relating to the events of February 16, 2006, the district court correctly dismissed such claims as barred by the 2-year statute of limitations in subsection A of § 8.01-243 , which applied to their 42 U.S.C.S. § 1983 civil rights claims. Smith v. McCarthy, 349 Fed. Appx. 851, 2009 U.S. App. LEXIS 23861 (4th Cir. 2009), cert. denied, 562 U.S. 829, 131 S. Ct. 81, 178 L. Ed. 2d 26, 2010 U.S. LEXIS 6186 (2010).

    In a 42 U.S.C.S. § 1983 case, one of plaintiffs’ due process claims failed because it was untimely. Virginia applies a two-year statute of limitations to personal injury claims pursuant to subsection A of § 8.01-243 . CG6 Concrete Specialists, Inc. v. Dep't of Police, No. 5:04CV00014, 2004 U.S. Dist. LEXIS 19663 (W.D. Va. Sept. 30, 2004).

    In a 42 U.S.C.S. § 1983 case in which the limitation period commenced on August 19, 2006, the date the inmate was stabbed, and the present action was not executed until August 22, 2008, the pro se inmate’s case was time-barred under subsection A of § 8.01-243 . Henry v. Baskerville, No. 3:08CV561-HEH, 2009 U.S. Dist. LEXIS 80621 (E.D. Va. Sept. 3, 2009), aff'd, 359 Fed. Appx. 395, 2009 U.S. App. LEXIS 28725 (4th Cir. 2009).

    Claim time-barred. —

    Even if plaintiff inmate stated a 42 U.S.C.S. § 1983 claim against defendant Medicaid official who gave alleged false testimony at his Medicaid fraud trial, since he would have known of his injuries at the end of the 2006 trial, but filed suit four years later, the claim was time-barred by subsection A of § 8.01-243 . Beverly v. Lawson, No. 3:10CV83-HEH, 2011 U.S. Dist. LEXIS 12844 (E.D. Va. Feb. 8, 2011).

    4.Wrongs Affecting Property and Property Rights.

    Five-year limitation applicable where focus on injury to property. —

    Where an action seems to have as its focus not relief from injury to the plaintiffs’ persons, but to their property, it is thus subject to a five-year limitation under this section. Chesapeake Bay Found., Inc. v. Virginia State Water Control Bd., 501 F. Supp. 821 (E.D. Va. 1980), In accord with the first paragraph in the 1992 Replacement Volume. Adams v. Star Enter., 851 F. Supp. 770, 1994 U.S. Dist. LEXIS 11127 (E.D. Va. 1994), aff'd, 51 F.3d 417, 1995 U.S. App. LEXIS 7648 (4th Cir. 1995).

    Plaintiff is entitled to the five-year statute of limitations provided for by subsection B for both its common law fraud and fraud under Racketeer-Influenced and Corrupt Organization Act claims for damage to its business property. Bush Dev. Corp. v. Harbour Place Assocs., 632 F. Supp. 1359, 1986 U.S. Dist. LEXIS 26838 (E.D. Va. 1986).

    Injury to land. —

    Where a landowner sued a gas company alleging that the gas company trespassed by its location of an underground gas line across one corner of the land, the landowner’s claim that the gas company caused injury to the well on the property in 1986 or 1987 when the gas company installed the pipeline was barred by the five-year statute of limitations under subsection B of § 8.01-243 . Mullins v. Equitable Prod. Co., No. 2:03CV00001, 2003 U.S. Dist. LEXIS 13024 (W.D. Va. July 29, 2003).

    Because an owner’s cause of action for injury to property accrued upon a town’s enactment of an ordinance in 1985, the circuit court properly determined that the statute of limitations in subsection B of § 8.01-243 had run; therefore, based on clear judicial precedent, the owner’s petition for a writ of mandamus was untimely. C. Givens Bros., L.L.C. v. Town of Blacksburg, 273 Va. 281 , 641 S.E.2d 113, 2007 Va. LEXIS 41 (2007).

    Circuit court did not erroneously deny the property owners association’s motion for summary judgment because the statute began the limitation period when a shopping center’s permanent sediment basins first began its continuous discharging of sediment into the property owners association’s lake; the Restatement provisions the property owners association relied upon did not specifically address the application of statutes of limitations to continuous injuries to property either under trespass or nuisance law. Forest Lakes Cmty. Ass'n v. United Land Corp. of Am., 293 Va. 113 , 795 S.E.2d 875, 2017 Va. LEXIS 6 (2017).

    Circuit court correctly applied the five-year statute of limitations, to the claim of trespass damages because the incursion of sediment into a creek that flowed into the property owners association’s lake occurred for more than five years prior to the suit being filed; sediment discharge continuously flowed from a shopping center’s basins into the lake due to functional design, and absent any cause but human labor, sediment discharge from the basins would continue indefinitely. Forest Lakes Cmty. Ass'n v. United Land Corp. of Am., 293 Va. 113 , 795 S.E.2d 875, 2017 Va. LEXIS 6 (2017).

    This section is applicable only where injury to property is direct and immediate result of wrongful conduct. Where the injury to property is an indirect or consequential injury resulting from a direct injury to the person, the one or two-year statute of limitations for personal injury applies. Brown v. ABC, 704 F.2d 1296, 1983 U.S. App. LEXIS 28923 (4th Cir. 1983).

    The Virginia Supreme Court has been extremely technical in its determination of whether the damage for which a plaintiff seeks to recover is a direct injury to property and thereby qualifies for the benefit of the five-year statute of limitations. In order for the five-year statute to apply, the following facts, among other things, must be found: (1) the injury must be against and affect directly the plaintiff’s property, (2) the plaintiff must sue only for the direct injury, and (3) the injury, to qualify as a direct injury, must be the very first injury which results from the wrongful act. Brown v. ABC, 704 F.2d 1296, 1983 U.S. App. LEXIS 28923 (4th Cir. 1983).

    Tortious interference causing breach or termination of relationship. —

    Claim of tortious interference against an intervening party that induces or causes a breach or termination of a relationship or expectancy between other parties is governed by the five-year statute of limitations for actions for injury to property. Welch v. Kennedy Piggly Wiggly Stores, Inc., 63 Bankr. 888 (W.D. Va. 1986).

    Tortious interference with prospective contract. —

    Claim of a former co-owner of two corporations alleging tortious interference with prospective contract by his former co-owner was not time-barred because there was a five-year limitations period under subsection B of § 8.01-243 , the alleged injury occurred in 2002, and the suit was filed in 2006. Williams v. Reynolds, No. 4:06CV00020, 2006 U.S. Dist. LEXIS 79178 (W.D. Va. Oct. 31, 2006).

    Tortious interference with contract or with business expectancy. —

    Claims of tortious interference with contract or with business expectancy are subject to the five-year statute of limitations for an action for injury to property, as the right to performance of a contract and the right to reap profits therefrom are property rights. Dunlap v. Cottman Transmission Sys., LLC, 287 Va. 207 , 754 S.E.2d 313, 2014 Va. LEXIS 33 (2014).

    Five-year statute of limitations set forth in this section applies to both tortious interference with contract and tortious interference with business expectancy. Dunlap v. Cottman Transmissions Sys., LLC, 576 Fed. Appx. 225, 2014 U.S. App. LEXIS 11873 (4th Cir. 2014).

    Slander of title. —

    The fact that plaintiff instituted an action for slander of title approximately five and one-half years after the filing of defendants’ memorandum of lis pendens was not dispositive of her claim for slander of title, since her cause of action did not fully accrue and the limitations period did not begin to run until the defendants released their claim against her property. Since plaintiff filed her action within one year of this release, she was held not to be barred by application of Virginia’s statute of limitations for defamation actions (§ 8.01-248 ), much less its limitations period of injury to property (this section), the court finding it unnecessary to decide the issue of the applicable limitations period. Warren v. Bank of Marion, 618 F. Supp. 317, 1985 U.S. Dist. LEXIS 15785 (W.D. Va. 1985).

    Continuing harm. —

    Claims by owners of townhomes units in a common interest community that they had been deprived of common area parking spaces by an illegal parking policy implemented by the homeowners’ association were not barred by § 8.01-243 because the owners alleged that they had suffered a continuing harm. In re Manchester Oaks Homeowners Ass'n, 469 Bankr. 631, 2012 Bankr. LEXIS 780 (Bankr. E.D. Va. 2012), rev'd, vacated, No. 1:12-cv-433, 2013 U.S. Dist. LEXIS 38027 (E.D. Va. Mar. 19, 2013).

    Realtor’s fraud not action for injury to property. —

    The fraud allegedly committed by the realtor had no impact on the real property itself. The purchasers’ land was in the same condition and was available for the same use after the alleged fraud as it was before. The defendants’ conduct was directed at the plaintiffs personally and not their property, real or personal. Consequently, the trial court correctly decided the one-year limitation governs an action for fraud. Pigott v. Moran, 231 Va. 76 , 341 S.E.2d 179, 1986 Va. LEXIS 166 (1986).

    A claim for the wrongful act resulting in the alleged diminution in value of the purchasers’ property because it abutted land zoned for industrial rather than residential uses, was not an action for “injury to property” within the meaning of subsection B. Pigott v. Moran, 231 Va. 76 , 341 S.E.2d 179, 1986 Va. LEXIS 166 (1986).

    Fraud is a tort. The wrongful act is aimed at the person and, when sued upon at law, fraud will support a recovery for financial damage personal to the individual. Pigott v. Moran, 231 Va. 76 , 341 S.E.2d 179, 1986 Va. LEXIS 166 (1986).

    Claim alleging negligence by a real estate broker. —

    District court denied a real estate agent and real estate broker’s motion to dismiss a former property owner’s claims alleging that the agent and broker committed fraud, negligence, and breach of contract when the agent and broker sold the owner’s house in 2003 because additional discovery was required to determine if the claims were time-barred under §§ 8.01-230 , 8.01-243 , 8.01-248 , and 8.01-249 . The court found that the owner’s claim alleging that the agent was negligent was a claim alleging professional malpractice that was subject to the five-year statute of limitations that was imposed by § 8.01-246(2) . Rossmann v. Lazarus, No. 1:08cv316, 2008 U.S. Dist. LEXIS 68408 (E.D. Va. Sept. 3, 2008).

    Builder’s fraud. —

    In fraud and negligent misrepresentation counts arising out of the builder’s use of Exterior Insulation and Finish Systems (EIFS), rather than conventional, stucco and the builder’s claim that the cladding of the home would need little or no maintenance, the two-year statute of limitations began when the fraud or negligent misrepresentation should have been discovered. The homeowners knew that the EIFS was to be applied when they signed the contract of sale, and they received a written warranty specifying the maintenance needed at closing, both of which were more than two years before the suit was filed. Hansen v. Stanley Martin Cos., 266 Va. 345 , 585 S.E.2d 567, 2003 Va. LEXIS 80 (2003).

    Fraud concerning defective goods. —

    Buyer’s fraud claim against a seller’s parent company was not barred by the two-year statute of limitations in § 8.01-243 ; the claim was brought against the seller within two years from the date that the seller admitted that it was unable and unwilling to repair the goods, and any fraud claim against the parent company would have related back to the date of the buyer’s complaint if the buyer had been granted leave to file a second amended complaint that included the parent company as a party. Rapoca Energy Co., LLP v. J.L. Mining Co., 368 F. Supp. 2d 541, 2005 U.S. Dist. LEXIS 8155 (W.D. Va. 2005).

    Fraud claims barred by statute of limitations. —

    Borrower’s alleged claims for actual fraud and constructive fraud against a finance company were barred by the two-year statute of limitations under subsection A of § 8.01-243 because the borrower signed the mortgage loan documents more than two and one-half years before the borrower first filed an action against the finance company. Schmidt v. Household Fin. Corp., II, 276 Va. 108 , 661 S.E.2d 834, 2008 Va. LEXIS 75 (2008).

    Constructive trusts. —

    The applicability of this statute to cases asserting a constructive trust is a settled matter of law in Virginia. Brown v. Goldstein (In re Johnson), 80 Bankr. 791, 1987 Bankr. LEXIS 1960 (Bankr. E.D. Va. 1987).

    Action for conversion against bank. —

    Five-year limitation period found in subsection B of this section applied to an action for conversion against a bank; two-year period in subsection A of this section was not applicable, nor was the one-year period found in § 8.01-248 . Bader v. Central Fid. Bank, 245 Va. 286 , 427 S.E.2d 184, 9 Va. Law Rep. 991, 1993 Va. LEXIS 24 (1993).

    Action by purchaser against manufacturer of a tank trailer for consequential damages suffered when it overturned, spilling its cargo, was required to be brought within five years of the date of purchase. Burke-Parsons-Bowlby Corp. v. E.D. Etnyre & Co., 585 F. Supp. 620, 1984 U.S. Dist. LEXIS 16348 (W.D. Va. 1984).

    Five-year limitation not applicable to RICO action. —

    Virginia’s five-year limitations period, subsection B, for injury to property does not apply to a civil racketeer influenced and corrupt organizations (RICO) action under 18 U.S.C. § 1961 et seq., since such injury is not the distinguishing aspect of RICO. RICO’s central feature is not injury to property, but personal liability so to eliminate the effects of organized crime on legitimate business. HMK Corp. v. Walsey, 637 F. Supp. 710, 1986 U.S. Dist. LEXIS 24490 (E.D. Va. 1986), aff'd, 828 F.2d 1071, 1987 U.S. App. LEXIS 12363 (4th Cir. 1987).

    Nuisance and trespass. —

    Neighbor’s plea in bar on statute of limitations grounds as to a dominant estate owner’s nuisance and trespass claims should not have been sustained because it was unclear from the complaint when an initial injury occurred or whether the injury was continuous or intermittent. Robinson v. Nordquist, 297 Va. 503 , 830 S.E.2d 36, 2019 Va. LEXIS 82 (2019).

    Damage to improvements to real property caused by underground mining. —

    The statute did not bar an action for damages to improvements to real property allegedly caused by underground mining operations conducted by the defendants, notwithstanding that the property first suffered damage due to underground mining more than five years before the action was commenced, as the defendants did not operate the mine at issue prior to the first damage being sustained. Graham v. Island Creek Coal Co., 184 F. Supp. 2d 511, 2002 U.S. Dist. LEXIS 2026 (W.D. Va. 2002), dismissed in part, No. 1:13CV00011, 2014 U.S. Dist. LEXIS 35046 (W.D. Va. Mar. 18, 2014).

    Landowner was entitled to seek recovery for damage to his property caused by each discharge of sewage. Each discharge was a separate actionable event for which the landowner was entitled to seek recovery during the five years preceding the filing of suit. Cause of action did not accrue when bypasses from the pump station began. Hampton Rds. San. Dist. v. McDonnell, 234 Va. 235 , 360 S.E.2d 841, 4 Va. Law Rep. 840, 1987 Va. LEXIS 233 (1987).

    Where the original discharge of sewage onto owner’s property did not produce all the damage to the property and the discharges were not continuous, instead, they occurred only at intervals, each discharge inflicted a new injury for which the owner had a separate cause of action. Hampton Rds. San. Dist. v. McDonnell, 234 Va. 235 , 360 S.E.2d 841, 4 Va. Law Rep. 840, 1987 Va. LEXIS 233 (1987).

    Migration of petroleum hydrocarbons onto property was continuous. —

    The five-year statute of limitations barred the plaintiff’s trespass action for damage to its property caused by the migration of petroleum hydrocarbons from property formerly owned by the defendant where the cause of action accrued, at the latest, when the hydrocarbons were discovered on the plaintiff’s property and, since the migration did not occur in distinct episodes but was continuous over a decade, there was no basis for applying later, separate accrual dates. First Va. Banks, Inc. v. BP Exploration & Oil Co., 206 F.3d 404, 2000 U.S. App. LEXIS 3763 (4th Cir. 2000).

    Appropriation of individual’s name or likeness. —

    Subsection A of § 8.01-40 is aimed at preventing the appropriation, without consent, of an individual’s name or likeness while he is alive and for 20 years after he dies. It creates in an individual a species of property right in their name and likeness. Consequently, the limitation period contained in subsection B of this section should be applied. Lavery v. Automation Mgt. Consultants, Inc., 234 Va. 145 , 360 S.E.2d 336, 4 Va. Law Rep. 543, 1987 Va. LEXIS 255 (1987).

    False advertising. —

    A cause of action for false advertising brought pursuant to §§ 59.1-68.3 and 18.2-216 is subject to the limitation period prescribed in § 8.01-248 rather than the limitation period and accrual date for fraud set forth in §§ 8.01-243 A and 8.01-249(1) , respectively. McMillion v. Dryvit Sys., 262 Va. 463 , 552 S.E.2d 364, 2001 Va. LEXIS 110 (2001).

    District court properly concluded that the statute of limitations in subsection A of § 8.01-243 barred the baby food product manufacturer’s false advertising counterclaim concerning its competitor’s routine and gentle formula for all ads issued prior to May 18, 2007. The manufacturer filed its counterclaim on May 18, 2009; therefore, claims that accrued before May 18, 2007, were time-barred by the two-year statute of limitations. PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 2011 U.S. App. LEXIS 8084 (4th Cir. 2011).

    It is proper to use the analogous state limitations period for Lanham Act false advertising suits because the Lanham Act provides no express statute of limitations. In Virginia, the analogous state limitations period is two years pursuant to subsection A of § 8.01-243 . PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 2011 U.S. App. LEXIS 8084 (4th Cir. 2011).

    Lender’s fraud not action for injury to property. —

    Where plaintiff alleged that they were fraudulently induced to convey to lenders security interest in both corporate and individual assets, which they subsequently lost entirely through foreclosure and repossession, and where plaintiffs, suffered loss of all use, enjoyment and value in their property by reason of alleged fraud, allegedly wrongful acts were aimed at persons of plaintiffs, rather than injuring their property since property had same form, same value, and was adapted to same uses after defendants’ actions as before; therefore, statute of limitations for personal injury rather than injury to property was appropriate. J.F. Toner & Son, Inc. v. Staunton Prod. Credit Ass'n, 237 Va. 155 , 375 S.E.2d 530, 5 Va. Law Rep. 1518, 1989 Va. LEXIS 13 (1989).

    Actions for legal malpractice governed by limitation periods applicable to actions for breach of contract, thus, the trial court correctly applied the three-year limitation because the bill of complaint did not allege that the contract between attorney and client was in writing. MacLellan v. Throckmorton, 235 Va. 341 , 367 S.E.2d 720, 4 Va. Law Rep. 2524, 1988 Va. LEXIS 50 (1988).

    Claim for medical expenses not tolled by § 8.01-229 A. —

    A parent’s claim for medical expenses under subsection B is not tolled by the provisions of subsection A of § 8.01-229 . Hutto v. BIC Corp., 800 F. Supp. 1367, 1992 U.S. Dist. LEXIS 19990 (E.D. Va. 1992).

    Infringement of trademark rights. —

    Because trademark rights have the characteristics of property, and indeed are so treated by owners of these rights, it would appear that infringement claims brought pursuant to the Lanham Act, specifically 15 U.S.C.S. § 1125(a), constitute injuries to property, to which the five year period of § 8.01-243 applies, rather than personal injuries. Int'l Bancorp, L.L.C. v. Societe des Bains de Mer et du Cercle des Etrangers a Monaco, 192 F. Supp. 2d 467, 2002 U.S. Dist. LEXIS 5571 (E.D. Va. 2002), aff'd, 329 F.3d 359, 2003 U.S. App. LEXIS 9566 (4th Cir. 2003).

    Inapplicable to inverse condemnation actions. —

    Trial court properly dismissed a property owner’s declaratory judgment action based on inverse condemnation due to the expiration of the three-year statute of limitations period contained in § 8.01-246 ; the five-year statute of limitations did not apply to inverse condemnation actions as the act giving rise to the claim was the City’s limitation of the owner’s ability to exercise his property rights without paying the owner for that limitation, which was a breach of the City’s implied contract to pay just compensation under Va. Const., Art. I, § 11. Richmeade, L.P. v. City of Richmond, 267 Va. 598 , 594 S.E.2d 606, 2004 Va. LEXIS 55 (2004).

    Attorney malpractice. —

    Debtor’s claim that she relied upon her attorney’s material representations of his experience in real estate transactions and that he failed to properly record her deeds alleged mere puffery and failed to allege a cause of action for fraud in the inducement independent of the debtor’s underlying legal malpractice claim; thus, the discovery rule did not extend the two-year statute of limitations for fraud. Ranasinghe v. Compton, 341 Bankr. 556, 2006 Bankr. LEXIS 868 (Bankr. E.D. Va. 2006).

    As to U.S. Supreme Court decision that the limitations period for civil RICO actions is the four-year federal statute of limitations applicable to Clayton Act actions, see Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 107 S. Ct. 2759, 97 L. Ed. 2d 121, 1987 U.S. LEXIS 2733 (1987).

    Claims against debtors in bankruptcy. —

    Adversary proceeding that a sister filed against her brother after her brother declared Chapter 7 bankruptcy was timely, regardless of whether the two-year statute of limitations imposed by subsection A of § 8.01-243 or the five-year statutes of limitations imposed by subsection B of § 8.01-243 and subsection C of § 55-550.05 governed her claims that her brother breached a fiduciary duty and committed conversion when he took money their father placed in a certificate of deposit for the sister’s benefit, pledged that money and his own money to secure a loan, and lost the sister’s money when he could not repay the loan. The sister did not discover her brother’s conduct until after he declared bankruptcy, and she filed her adversary proceeding within two years of the date her brother testified at the first meeting of creditors. Halstead v. Bilter (In re Bilter), 413 Bankr. 290, 2009 Bankr. LEXIS 846 (Bankr. E.D. Va. 2009).

    Reasonable diligence. —

    It was true that the filing of the chapter 11 petition would have tolled the running of the statute if it had not already expired, but even when debtor’s petition was filed on April 4, 2009, some two years and seven months had passed since debtor, in the exercise of reasonable diligence, should reasonably have known that he was receiving only monthly payments. The fact that his attorney may not have known until much more recently the specific details of what happened to the sales proceeds, some of which appeared to have been funneled to another business owned by defendant, was not sufficient to postpone the running of the statute of limitations. Hollman v. Weed, No. 09-13376-SSM, No. 09-1147-SSM, 2009 Bankr. LEXIS 3646 (Bankr. E.D. Va. Nov. 10, 2009).

    C.Effect of Running of Statute.

    Impleader barred when plaintiff’s claim time-barred. —

    Where the statute of limitations on any claim that a plaintiff may have against a third-party defendant has run, the defendant has no right to implead. Rambone v. Critzer, 548 F. Supp. 660, 1982 U.S. Dist. LEXIS 9714 (W.D. Va. 1982).

    Weather related closures. —

    Dismissal of a negligence complaint was not warranted because an injured party’s complaint was timely filed due to subsection C of § 1-210. Closures due to snow were authorized under § 17.1-207 , even though a presiding judge did not authorize such. Allie v. Whole Foods Mkt. Group, Inc., 746 F. Supp. 2d 773, 2010 U.S. Dist. LEXIS 112606 (E.D. Va. 2010).

    A federal court sitting in diversity must honor Virginia law restricting the court within which a nonsuited plaintiff may recommence in order to invoke saving provision as the Virginia restriction is an integral part of the several policies served by Virginia’s statutes of limitations and must be applied in consolidated federal diversity actions. Yarber v. Allstate Ins. Co., 674 F.2d 232, 1982 U.S. App. LEXIS 20861 (4th Cir. 1982).

    Dismissal on statute of limitations grounds is not within intendment of Fed. R. Civ. P. 41(b). —

    A dismissal on statute of limitations grounds under this section is not within the intendment of Fed. R. Civ. P. 41(b) and, therefore, is not an adjudication on the merits. The only issue on the merits which would be res judicata in a subsequent action in any court is that the action is time-barred in any action that would necessarily apply this section. In all other respects the merits of the claim are unaffected. Burgess v. Cohen, 593 F. Supp. 1122, 1984 U.S. Dist. LEXIS 23542 (E.D. Va. 1984), disapproved, Shoup v. Bell & Howell Co., 872 F.2d 1178, 1989 U.S. App. LEXIS 5495 (4th Cir. 1989).

    Statute not tolled where renewed action not commenced within six months of nonsuit. —

    Where a patient filed a medical malpractice action against a variety of defendants, which she then nonsuited pursuant to § 8.01-380 , and her renewed action was not commenced within the two-year limitations period of subsection A of § 8.01-243 , nor was it filed within the six-month period from the date of the nonsuit order pursuant to subdivision E 3 of § 8.01-229 , her action was barred by the limitations period. Simon v. Forer, 265 Va. 483 , 578 S.E.2d 792, 2003 Va. LEXIS 43 (2003).

    Two-year limitations period for 42 U.S.C.S. § 1983 actions. —

    Statute of limitations for 42 U.S.C.S. § 1983 actions brought in Virginia is two years under subsection A of § 8.01-243 ; therefore, dismissal of an inmate’s case involving a sexual assault by an officer, based on a one-year statute of limitations, was improper. Billups v. Carter, 268 Va. 701 , 604 S.E.2d 414, 2004 Va. LEXIS 139 (2004).

    Clinical laboratory not agent or employee of doctors and not health care provider. Consequently, the act did not apply to the lab, and filing the Notice of Claim under the act did not toll the statute of limitations as to the claim of negligence against the lab. Richman v. National Health Labs., Inc., 235 Va. 353 , 367 S.E.2d 508, 4 Va. Law Rep. 2538, 1988 Va. LEXIS 63 (1988).

    D.Asbestos Injuries.

    Subsection A applicable to asbestos cases filed before ruling in Oman v. Johns-Manville Corp. —

    Virginia’s two-year personal injury statute of limitations, subsection A of this section, applies retroactively to asbestos cases filed prior to the Fourth Circuit’s ruling in Oman v. Johns-Manville Corp., 764 F.2d 224, 1985 U.S. App. LEXIS 19742 (4th Cir.), cert. denied, 474 U.S. 970, 106 S. Ct. 351, 88 L. Ed. 2d 319 (1985).

    Amended complaint. —

    It was undisputed that plaintiff’s claims regarding her exposure to asbestos were governed by Virginia’s two-year statute of limitations and that, unless plaintiff’s amended complaint related back to her original complaint, her claims were time-barred. Because the two pleadings did not arise out of the same conduct, transaction, or occurrence, the amended complaint did not relate back to the original pleading. Anderson v. Bondex Int'l, Inc., 552 Fed. Appx. 153, 2014 U.S. App. LEXIS 247 (3d Cir. 2014).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    It is the object of litigation which determines the applicability of a statute of limitations, not the form in which suit is instituted. Almond v. Kent, 459 F.2d 200, 1972 U.S. App. LEXIS 10178 (4th Cir. 1972); Sitwell v. Burnette, 349 F. Supp. 83, 1972 U.S. Dist. LEXIS 12330 (W.D. Va. 1972).

    Statutes of limitations are designed to suppress fraudulent and stale claims from being asserted after a great lapse of time, to the surprise of the parties, when the evidence may have been lost, the facts may have become obscure because of defective memory, or the witnesses have died or disappeared. Barnes v. Sears, Roebuck & Co., 406 F.2d 859, 1969 U.S. App. LEXIS 9026 (4th Cir. 1969); Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    The courts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights. Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    And to compel prompt assertion of accrued right of action. —

    Statutes of limitation are designed to compel the prompt assertion of an accrued right of action; not to bar such a right before it has accrued. Caudill v. Wise Rambler, Inc., 210 Va. 11 , 168 S.E.2d 257, 1969 Va. LEXIS 188 (1969).

    The oft-stated purpose of statutes of limitation is to compel the assertion of a right of action promptly while the evidence is available and still relatively fresh. Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    Statutes of limitation are statutes of repose, the object of which is to compel the exercise of a right of action within a reasonable time. Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    Statutes of limitation are statutes of repose. Barnes v. Sears, Roebuck & Co., 406 F.2d 859, 1969 U.S. App. LEXIS 9026 (4th Cir. 1969).

    And they must be construed strictly to that end under Virginia law. Barnes v. Sears, Roebuck & Co., 406 F.2d 859, 1969 U.S. App. LEXIS 9026 (4th Cir. 1969).

    But the Supreme Court is reluctant to reach unjust results. —

    The Supreme Court has indicated its reluctance in deciding statute of limitation questions to reach results which are unjust and inequitable. Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    Statutes of limitation are primarily designed to assure fairness to defendants. Such statutes promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them. Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    Historically, periods of limitations have on occasion been described as established to cut off rights, justifiable or not, which might otherwise be asserted, and as requiring strict adherence by the judiciary. In recent years, however, a marked preference has attached to the view that statutory limitations are primarily designed to assure fairness to defendants, and that they promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded and witnesses have disappeared. Taliaferro v. Dykstra, 388 F. Supp. 957, 1975 U.S. Dist. LEXIS 14120 (E.D. Va. 1975).

    B.Proceedings to Which This Section Applicable.
    1.In General.

    This section applies only to personal actions. Harper v. Harper, 159 Va. 210 , 165 S.E. 490 , 1932 Va. LEXIS 183 (1932).

    Maritime torts. —

    This section should not have been accorded a decisive influence in a maritime tort action. Giddens v. Isbrandtsen Co., 355 F.2d 125, 1966 U.S. App. LEXIS 7652 (4th Cir. 1966).

    In the enforcement of a maritime claim, admiralty prefers the equity rule of laches as opposed to any rigid limitation. Giddens v. Isbrandtsen Co., 355 F.2d 125, 1966 U.S. App. LEXIS 7652 (4th Cir. 1966).

    Claims against trustees. —

    A trustee cannot take advantage of the act of limitations against the claim of the cestui que trust or of persons claiming under him. Redwood v. Riddick, 18 Va. (4 Munf) 222, 1814 Va. LEXIS 30 (1814).

    Free speech rights under federal labor law. —

    A cause of action asserting free speech rights secured to a member of a labor union under the provisions of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411(a)(2) is controlled by the two-year statute of limitations under this section. Howard v. Aluminum Workers Int'l Union, 418 F. Supp. 1058, 1976 U.S. Dist. LEXIS 13447 (E.D. Va. 1976), aff'd, 589 F.2d 771, 1978 U.S. App. LEXIS 6755 (4th Cir. 1978).

    Action for unfair union representation. —

    The two-year Virginia tort limitations set forth in this section controls an action charging union with unfair representations rather than the five-year contract statute of limitations under § 8.01-246 . Howard v. Aluminum Workers Int'l Union, 418 F. Supp. 1058, 1976 U.S. Dist. LEXIS 13447 (E.D. Va. 1976), aff'd, 589 F.2d 771, 1978 U.S. App. LEXIS 6755 (4th Cir. 1978).

    2.Personal Injuries.

    Two-year limitation applies. —

    An action to recover damages for personal injuries caused by the wrongful act, neglect, or default of any person or corporation must be brought within one year (now two years) from the time such injury was inflicted. Anderson v. Hygeia Hotel Co., 92 Va. 687 , 24 S.E. 269 , 1896 Va. LEXIS 31 (1896), limited, Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930); Birmingham v. C & O Ry., 98 Va. 548 , 37 S.E. 17 , 1900 Va. LEXIS 76 (1900).

    This section applies to every action for personal injuries whether based on tort or contract. —

    This section, and thus the two-year limitation, does not apply only to tort actions, but to every action for personal injuries, whether it is based upon tort or contract. Therefore, the wrong alleged, not the form of the action, is what counts in the measurement and application of the appropriate limitation. Tyler v. R.R. St. & Co., 322 F. Supp. 541, 1971 U.S. Dist. LEXIS 14571 (E.D. Va. 1971) (commented on in 6 U. Rich. L. Rev. 167 (1971)).

    This section applies in an action for personal injuries grounded upon breach of implied warranty. Friedman v. Peoples Serv. Drug Stores, 208 Va. 700 , 160 S.E.2d 563, 1968 Va. LEXIS 170 (1968); Tyler v. R.R. St. & Co., 322 F. Supp. 541, 1971 U.S. Dist. LEXIS 14571 (E.D. Va. 1971) (commented on in 6 U. Rich. L. Rev. 167 (1971)).

    Since an action to recover damages for personal injuries based on a breach of warranty is essentially an action for personal injuries, the limitation thereon is governed by this section, and not by this section applicable to an action based on contract. Caudill v. Wise Rambler, Inc., 210 Va. 11 , 168 S.E.2d 257, 1969 Va. LEXIS 188 (1969).

    The period of limitations in actions for personal injuries was not changed by the passage of § 8.01-25 , providing that no cause of action is lost because of the death of the person liable for the injury or of the person in whose favor the cause of action existed. Herndon v. Wickham, 198 Va. 824 , 97 S.E.2d 5, 1957 Va. LEXIS 145 (1957); Sherley v. Lotz, 200 Va. 173 , 104 S.E.2d 795, 1958 Va. LEXIS 173 (1958).

    A medical malpractice complaint, which alleged that the malpractice occurred during a continuous and substantially uninterrupted course of examination and treatment which commenced in October 1971, and terminated in July 1972, and which alleged that a particular condition was improperly treated and diagnosed, set forth a case for application of the continuing treatment rule. The date of injury occurred, the cause of action for that malpractice accrued and the statute of limitations commenced to run when the improper course of examination and treatment for the particular malady terminated in July 1972. Fenton v. Danaceau, 220 Va. 1 , 255 S.E.2d 349, 1979 Va. LEXIS 223 (1979).

    Claim for personal injuries based on unseaworthiness. —

    This section places a claim for personal injuries based on unseaworthiness within the field of tort liability. Dawson v. Fernley & Eger, 196 F. Supp. 816, 1961 U.S. Dist. LEXIS 4101 (E.D. Va. 1961).

    The warranty of seaworthiness as extended to the longshoreman is not contractual in nature, but is merely an incident of the relationship of the parties, namely, the shipowner with the longshoreman who performs duties traditionally done by the seaman. For this reason it follows that this section would be applicable in Virginia to a claim by a longshoreman against a shipowner for personal injuries as to any action instituted in Virginia. Dawson v. Fernley & Eger, 196 F. Supp. 816, 1961 U.S. Dist. LEXIS 4101 (E.D. Va. 1961).

    Action for injuries resulting from sale of unwholesome food must be brought within one year (now two years) after the right to bring the same shall have first accrued. Colonna v. Rosedale Dairy Co., 166 Va. 314 , 186 S.E. 94 , 1936 Va. LEXIS 191 (1936).

    Section does not apply to death by wrongful act. —

    As an action for death by wrongful act is not a survival of the right of the injured person, but a new right conferred by statute upon the personal representative, the period of limitation is not five (now two) years under this section but is determined by § 8.01-244 and is one (now two) year. Anderson v. Hygeia Hotel Co., 92 Va. 687 , 24 S.E. 269 , 1896 Va. LEXIS 31 (1896), limited, Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930); Manuel v. Norfolk & W. Ry., 99 Va. 188 , 37 S.E. 957 (1901).

    Nor to action for contribution by joint tort-feasors. —

    See McKay v. Citizens Rapid Transit Co., 190 Va. 851 , 59 S.E.2d 121, 1950 Va. LEXIS 175 (1950).

    Nor to action under Federal Tort Claims Act. —

    This section does not apply to a suit in a federal court under the Federal Tort Claims Act on a cause of action which arose in Virginia. Jefferson v. United States, 77 F. Supp. 706, 1948 U.S. Dist. LEXIS 2741 (D. Md. 1948), aff'd, 178 F.2d 518, 1949 U.S. App. LEXIS 3722 (4th Cir. 1949); 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950).

    Free speech rights under federal labor law. —

    In an action by workers alleging that their unions had abridged their rights to free speech guaranteed by the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411, the limitations period applicable to tort actions was properly applied since the speech claims were closely akin to personal injury claims under Virginia law. Howard v. Aluminum Workers Int'l Union & Local 400, 589 F.2d 771, 1978 U.S. App. LEXIS 6755 (4th Cir. 1978).

    Action for unfair labor representation. —

    The appropriate limitations period in an action by workers alleging that their unions had broken the duty of fair representation imposed upon them by the Labor Management Relations Act, 29 U.S.C. § 159, is taken from the limitations applicable to tort actions. Howard v. Aluminum Workers Int'l Union & Local 400, 589 F.2d 771, 1978 U.S. App. LEXIS 6755 (4th Cir. 1978).

    3.Civil Rights Actions.

    By its language this section applies a two-year limitation of personal injury claims and by judicial construction, civil rights allegations carry a two-year limitation. Williams v. Westbrook Psychiatric Hosp., 420 F. Supp. 322, 1976 U.S. Dist. LEXIS 13148 (E.D. Va. 1976).

    The timeliness of 42 U.S.C. § 1983 “constitutional tort” actions is governed by Virginia’s two-year “personal injury” statute. Van Horn v. Lukhard, 392 F. Supp. 384, 1975 U.S. Dist. LEXIS 12968 (E.D. Va. 1975); Bulls v. Holmes, 403 F. Supp. 475, 1975 U.S. Dist. LEXIS 15548 (E.D. Va. 1975).

    The first sentence of this section establishes the limitation period of two years applicable to suits brought under 42 U.S.C. § 1981, alleging denial of admission to private schools solely on the basis of race. Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586, 49 L. Ed. 2d 415, 1976 U.S. LEXIS 7 (1976), limited, Anderson v. Conboy, 156 F.3d 167, 1998 U.S. App. LEXIS 22036 (2d Cir. 1998).

    The two-year statute of limitations applies to actions brought under 42 U.S.C. § 1985. Brady v. Sowers, 453 F. Supp. 52, 1978 U.S. Dist. LEXIS 17272 (W.D. Va. 1978).

    Deprivation of property due to alleged racial discrimination. —

    A case involving only the question of whether defendants deprived plaintiff of his property because he was black was basically a tort, a personal injury issue requiring the two-year statute of limitations under this section. Harris v. Obenshain, 452 F. Supp. 1172, 1978 U.S. Dist. LEXIS 17794 (E.D. Va. 1978).

    Effect of filing § 1983 action in another state. —

    The filing of an action under 42 U.S.C. § 1983 in a federal district court in North Carolina did not toll the running of the applicable two-year statute of limitations in Virginia where the attorney’s decision to file the action in North Carolina was legally unsound, the later action in a federal district court in Virginia could not be treated as a transfer, and the only logical reason that could be found for filing in North Carolina was to avoid the Virginia statute of limitations. Brady v. Sowers, 453 F. Supp. 52, 1978 U.S. Dist. LEXIS 17272 (W.D. Va. 1978).

    Where plaintiff requested equitable relief as well as monetary damages in a civil rights action he cannot negate the applicability of statute of limitations. Wilkinson v. Hamel, 381 F. Supp. 768, 1974 U.S. Dist. LEXIS 6860 (W.D. Va. 1974).

    Second paragraph of former § 8-24 imposing a one-year limitation on suits under 42 U.S.C. § 1983 was unconstitutional because it both burdened the assertion of a federally created right of substantial importance, and because it effected an invidious and unwarranted discrimination against assertion of the “constitutional tort.” Van Horn v. Lukhard, 392 F. Supp. 384, 1975 U.S. Dist. LEXIS 12968 (E.D. Va. 1975).

    And two-year limitation continued to be applied. —

    The discrimination toward federal civil rights actions in the 1973 amendment to this section imposing a one-year limitation on 42 U.S.C. § 1983 suits was apparent. Analogous torts arising under Virginia law were not similarly limited. Nor was any attempt made to rationally prescribe a limitation period for federal civil rights suits in terms of the object of the litigation. Rather, Virginia apparently sought to limit all federal civil rights causes of action without regard to the federal statutory and constitutional values at stake. The court therefore decided to continue to apply the two-year limitation period of former § 8-24 incorporated into federal law. Edgerton v. Puckett, 391 F. Supp. 463, 1975 U.S. Dist. LEXIS 13014 (W.D. Va. 1975).

    Where plaintiffs brought action based on discrimination in housing under 42 U.S.C. § 1982, the two-year limitation period in this section was applicable so as to avoid an impermissible burden upon and discrimination against the assertion of a federally created right. Brown v. Blake & Bane, Inc., 409 F. Supp. 1246, 1976 U.S. Dist. LEXIS 16483 (E.D. Va. 1976).

    Decisions under section as it read prior to 1973 amendment, which was held unconstitutional. —

    The two-year period of limitations, applying to “every action for personal injuries,” applies generally to 42 U.S.C. § 1983 suits for deprivation of civil rights. Almond v. Kent, 459 F.2d 200, 1972 U.S. App. LEXIS 10178 (4th Cir. 1972); Sitwell v. Burnette, 349 F. Supp. 83, 1972 U.S. Dist. LEXIS 12330 (W.D. Va. 1972).

    The two-year statute of limitations applies to actions in this State for personal damages brought pursuant to 42 U.S.C. § 1983. Landman v. Royster, 354 F. Supp. 1302, 1973 U.S. Dist. LEXIS 15132 (E.D. Va. 1973).

    The two-year statute of limitations for personal injuries is applied in all civil rights actions that might be redressed by recovery of damages. Wilkinson v. Hamel, 381 F. Supp. 768, 1974 U.S. Dist. LEXIS 6860 (W.D. Va. 1974).

    The two-year period applies to all rights which could be redressed under 42 U.S.C. § 1983 by the recovery of money damages. Sitwell v. Burnette, 349 F. Supp. 83, 1972 U.S. Dist. LEXIS 12330 (W.D. Va. 1972).

    While the back-pay claim of a party-plaintiff would have been barred by the two-year statute of limitation in this section in a discrimination suit, the overall suit was not subject to such a bar because of the public interest at stake. In re Plywood Antitrust Litig., 376 F. Supp. 1405, 1974 U.S. Dist. LEXIS 8159 (J.P.M.L. 1974).

    Virginia’s two-year statute of limitations was declared appropriate for personal injury suits based on racial discrimination in the sale of real estate in violation of 42 U.S.C. § 1982. Allen v. Gifford, 462 F.2d 615, 1972 U.S. App. LEXIS 8856 (4th Cir.), cert. denied, 409 U.S. 876, 93 S. Ct. 128, 34 L. Ed. 2d 130, 1972 U.S. LEXIS 1653 (1972).

    The fact that plaintiff had failed to assert a timely claim under the Fair Housing Act, 42 U.S.C. § 3601 et seq., had no effect on the timeliness of the cause of action relating to property rights of citizens, because the statute of limitations applicable to a cause of action brought under 42 U.S.C. § 1982, was the state statute of limitations expressly or most nearly applicable to the type of claim asserted, which in Virginia was contained in this section which provided a two-year limitation for personal injuries. Hampton v. Roberts, 386 F. Supp. 609, 1974 U.S. Dist. LEXIS 5859 (W.D. Va. 1974).

    4.Wrongs Affecting Property and Property Rights.
    a.Injuries to Property.

    The five-year limitation controls actions of trespass to land. —

    An action of trespass to land, unless continuous, is barred in five years under this section; when the trespass is continuous the recovery is limited to the five years preceding the action. Moore v. Postal Tel. Cable Co., 3 Va. Law Reg. (n.s.), 111 (1917).

    Actions for damages to one’s property, estate, or business receive the benefit of the five-year period under this section. Almond v. Kent, 321 F. Supp. 1225, 1970 U.S. Dist. LEXIS 9185 (W.D. Va. 1970), rev'd, 459 F.2d 200, 1972 U.S. App. LEXIS 10178 (4th Cir. 1972); Eden Corp. v. Utica Mut. Ins. Co., 350 F. Supp. 637, 1972 U.S. Dist. LEXIS 11418 (W.D. Va. 1972).

    Negligent failure to warn. —

    As the object of the charge of negligent failure to warn is to recover for the property damage that was done, such action would survive, and is timely brought since it is within the five-year period of limitation that would apply. Insurance Co. of N. Am. v. GE Co., 376 F. Supp. 638, 1974 U.S. Dist. LEXIS 8280 (W.D. Va. 1974).

    An action for conspiracy to injure another in his reputation, trade, etc., brought under §§ 18.2-499 and 18.2-500 , does survive, and hence, is subject to the five-year limitation in this section. Federated Graphics Cos. v. Napotnik, 424 F. Supp. 291, 1976 U.S. Dist. LEXIS 12285 (E.D. Va. 1976).

    Actions for nuisances. —

    An action to recover damages, past and future, for a permanent nuisance must be brought within five years from the time the cause of action accrues. Wooley v. Mathieson Alkali Works, 119 Va. 862 , 89 S.E. 880 , 1916 Va. LEXIS 169 (1916).

    For pollution of a stream. —

    An action for pollution of a stream by the discharge of sewage therein from a permanent sewer system is barred by this section five years from the time of the construction of the sewer. Virginia Hot Springs Co. v. McCray, 106 Va. 461 , 56 S.E. 216 , 1907 Va. LEXIS 107 (1907).

    Or of a well. —

    The limitation to an action to recover damages for injury to the plaintiff’s property by reason of pollution of plaintiff’s well by cesspools constructed and maintained by the defendant on his land adjacent to that of the plaintiff is five years. Hawling v. Chapin, 115 Va. 792 , 80 S.E. 587 , 1914 Va. LEXIS 132 (1914).

    Where defendant’s alleged negligence was the alleged direct cause of fire leading to property damage, plaintiff has stated a cause of action that alleges a direct, assignable, and survival cause of action to which the five-year period of limitations under this section applies. Insurance Co. of N. Am. v. GE Co., 376 F. Supp. 638, 1974 U.S. Dist. LEXIS 8280 (W.D. Va. 1974).

    And for damage caused by smoke from railroad. —

    Damages to an adjoining landowner caused by cinders and smoke from a railroad track cast upon his land is permanent and continuous, and entire damages are recoverable in a single action, and the limitation in such case is five years under this section. Southern Ry. v. Fitzpatrick, 129 Va. 246 , 105 S.E. 663 , 1921 Va. LEXIS 90 (1921).

    b.Actions to Recover Personal Property.

    Uninterrupted possession of personal property for more than five years is a bar to a suit by the former owner thereof to recover the same. Garland v. Enos, 18 Va. (4 Munf) 504, 1815 Va. LEXIS 50 (1815).

    This section applies to a suit to establish a secret trust. —

    A fraudulent bill of sale, absolute on its face but with a secret trust, was made of property. The beneficiaries on becoming of age set up a claim to the property which the trustee denied to be just. Eight years later they filed a bill to establish the secret trust. It was held that the statute of limitations was a bar to the bill. Owen v. Sharp, 39 Va. (12 Leigh) 427, 1841 Va. LEXIS 53 (1841).

    And an action by the receiver of a national bank to recover assets of the bank which were transferred to the directors was governed by this section. White v. FDIC, 122 F.2d 770, 1941 U.S. App. LEXIS 4563 (4th Cir. 1941), cert. denied, 316 U.S. 672, 62 S. Ct. 1043, 86 L. Ed. 1747, 1942 U.S. LEXIS 1047 (1942).

    c.Breach of Duty.

    Action for compensatory and punitive damages for conspiring to breach contract. —

    An action for compensatory and punitive damages for malicious acts of defendant in conspiring to breach a contract not to engage in teaching dancing within two years after defendant’s employment with plaintiffs ended was within the five-year period prescribed by this section, since the action was one for damages to plaintiffs’ estate, which would survive under former § 64.1-145 [now see § 64.2-520 ]. Worrie v. Boze, 198 Va. 533 , 95 S.E.2d 192, 1956 Va. LEXIS 239 (1956).

    Bank directors may invoke statute. —

    Directors of a bank which is a going concern are not trustees of an express trust, but are trustees of an implied trust created by operation of law upon their official relation to the bank, and the statute of limitations and the doctrine of laches may be invoked in their defense when they are sued for a breach of such trust. Winston v. Gordon, 115 Va. 899 , 80 S.E. 756 , 1914 Va. LEXIS 146 (1914).

    And five-year limitation controls action for negligence of director. —

    The cause of action against the directors of a bank for neglect of duty as such directors grows out of their breach of duty, and hence the limitation applicable thereto is five years. Winston v. Gordon, 115 Va. 899 , 80 S.E. 756 , 1914 Va. LEXIS 146 (1914).

    In a suit against bank directors for negligence in the administration of the affairs of the bank, the five-year statute of limitation applies. The two-year limitation in former § 13-207 is not applicable to all acts of directors as such; it refers to the positive duties required of directors by the statute law, and not to negligence. Anderson v. Bundy, 161 Va. 1 , 171 S.E. 501 , 1933 Va. LEXIS 296 (1933); Marshall v. Fredericksburg Lumber Co., 162 Va. 136 , 173 S.E. 553 , 1934 Va. LEXIS 242 (1934).

    And action for fraudulent embezzlement by carrier. —

    The act of limitations may be pleaded in bar to an action against a common carrier for fraudulently embezzling goods entrusted to its care. Cook v. Darby, 18 Va. (4 Munf) 444, 1815 Va. LEXIS 31 (1815).

    Suit based on unions’ alleged breach of duty and employer’s complicity in such breach clearly sounds in tort, and the court therefore will apply the Virginia limitation period governing tort suits. Coleman v. Kroger Co., 399 F. Supp. 724, 1975 U.S. Dist. LEXIS 16449 (W.D. Va. 1975).

    d.Liability Imposed by Statute.

    Action by automobile dealer for violations of former § 46.1-547. —

    The five-year statute of limitations applies to an automobile dealer’s action against an automobile sales corporation for cancellation of the dealer’s franchise and other violations of former § 46.1-547. E.L. Bowen & Co. v. American Motors Sales Corp., 153 F. Supp. 42, 1957 U.S. Dist. LEXIS 3205 (D. Va. 1957).

    This section applies to suits for copyright infringement under former 17 U.S.C. § 25 (see 17 U.S.C. § 501 et seq.), and, as such suits survive, the five-year limitation controls. Pathe Exch., Inc. v. Dalke, 49 F.2d 161, 1931 U.S. App. LEXIS 3161 (4th Cir. 1931).

    An action to recover triple damages for violation of Sherman Anti-Trust Act is governed by the five-year limitation prescribed by this section. Barnes Coal Corp. v. Retail Coal Merchants Ass'n, 128 F.2d 645, 1942 U.S. App. LEXIS 3662 (4th Cir. 1942).

    And the right of action on an assessment on national bank stock is governed by this section. Cable v. Commercial & Sav. Bank, 31 F. Supp. 628 (W.D. Va. 1940). But see Hospelhorn v. Corbin, 179 Va. 348 , 19 S.E.2d 72 (1942), wherein it was held that the double liability of stockholders in a bank and trust company, imposed by a Maryland statute, was contractual in nature and therefore controlled by the three-year limitation in § 8.01-246 .

    But not to claims for compensation under Fair Labor Standards Act. —

    This section is not applicable to an action to recover compensation under the Fair Labor Standards Act. Reliance Storage & Inspection Co. v. Hubbard, 50 F. Supp. 1012, 1943 U.S. Dist. LEXIS 2545 (D. Va. 1943).

    b.Actions to Recover Personal Property.

    Uninterrupted possession of personal property for more than five years is a bar to a suit by the former owner thereof to recover the same. Garland v. Enos, 18 Va. (4 Munf) 504, 1815 Va. LEXIS 50 (1815).

    This section applies to a suit to establish a secret trust. —

    A fraudulent bill of sale, absolute on its face but with a secret trust, was made of property. The beneficiaries on becoming of age set up a claim to the property which the trustee denied to be just. Eight years later they filed a bill to establish the secret trust. It was held that the statute of limitations was a bar to the bill. Owen v. Sharp, 39 Va. (12 Leigh) 427, 1841 Va. LEXIS 53 (1841).

    And an action by the receiver of a national bank to recover assets of the bank which were transferred to the directors was governed by this section. White v. FDIC, 122 F.2d 770, 1941 U.S. App. LEXIS 4563 (4th Cir. 1941), cert. denied, 316 U.S. 672, 62 S. Ct. 1043, 86 L. Ed. 1747, 1942 U.S. LEXIS 1047 (1942).

    c.Breach of Duty.

    Action for compensatory and punitive damages for conspiring to breach contract. —

    An action for compensatory and punitive damages for malicious acts of defendant in conspiring to breach a contract not to engage in teaching dancing within two years after defendant’s employment with plaintiffs ended was within the five-year period prescribed by this section, since the action was one for damages to plaintiffs’ estate, which would survive under former § 64.1-145 [now see § 64.2-520 ]. Worrie v. Boze, 198 Va. 533 , 95 S.E.2d 192, 1956 Va. LEXIS 239 (1956).

    Bank directors may invoke statute. —

    Directors of a bank which is a going concern are not trustees of an express trust, but are trustees of an implied trust created by operation of law upon their official relation to the bank, and the statute of limitations and the doctrine of laches may be invoked in their defense when they are sued for a breach of such trust. Winston v. Gordon, 115 Va. 899 , 80 S.E. 756 , 1914 Va. LEXIS 146 (1914).

    And five-year limitation controls action for negligence of director. —

    The cause of action against the directors of a bank for neglect of duty as such directors grows out of their breach of duty, and hence the limitation applicable thereto is five years. Winston v. Gordon, 115 Va. 899 , 80 S.E. 756 , 1914 Va. LEXIS 146 (1914).

    In a suit against bank directors for negligence in the administration of the affairs of the bank, the five-year statute of limitation applies. The two-year limitation in former § 13-207 is not applicable to all acts of directors as such; it refers to the positive duties required of directors by the statute law, and not to negligence. Anderson v. Bundy, 161 Va. 1 , 171 S.E. 501 , 1933 Va. LEXIS 296 (1933); Marshall v. Fredericksburg Lumber Co., 162 Va. 136 , 173 S.E. 553 , 1934 Va. LEXIS 242 (1934).

    And action for fraudulent embezzlement by carrier. —

    The act of limitations may be pleaded in bar to an action against a common carrier for fraudulently embezzling goods entrusted to its care. Cook v. Darby, 18 Va. (4 Munf) 444, 1815 Va. LEXIS 31 (1815).

    Suit based on unions’ alleged breach of duty and employer’s complicity in such breach clearly sounds in tort, and the court therefore will apply the Virginia limitation period governing tort suits. Coleman v. Kroger Co., 399 F. Supp. 724, 1975 U.S. Dist. LEXIS 16449 (W.D. Va. 1975).

    d.Liability Imposed by Statute.

    Action by automobile dealer for violations of former § 46.1-547. —

    The five-year statute of limitations applies to an automobile dealer’s action against an automobile sales corporation for cancellation of the dealer’s franchise and other violations of former § 46.1-547. E.L. Bowen & Co. v. American Motors Sales Corp., 153 F. Supp. 42, 1957 U.S. Dist. LEXIS 3205 (D. Va. 1957).

    This section applies to suits for copyright infringement under former 17 U.S.C. § 25 (see 17 U.S.C. § 501 et seq.), and, as such suits survive, the five-year limitation controls. Pathe Exch., Inc. v. Dalke, 49 F.2d 161, 1931 U.S. App. LEXIS 3161 (4th Cir. 1931).

    An action to recover triple damages for violation of Sherman Anti-Trust Act is governed by the five-year limitation prescribed by this section. Barnes Coal Corp. v. Retail Coal Merchants Ass'n, 128 F.2d 645, 1942 U.S. App. LEXIS 3662 (4th Cir. 1942).

    And the right of action on an assessment on national bank stock is governed by this section. Cable v. Commercial & Sav. Bank, 31 F. Supp. 628 (W.D. Va. 1940). But see Hospelhorn v. Corbin, 179 Va. 348 , 19 S.E.2d 72 (1942), wherein it was held that the double liability of stockholders in a bank and trust company, imposed by a Maryland statute, was contractual in nature and therefore controlled by the three-year limitation in § 8.01-246 .

    But not to claims for compensation under Fair Labor Standards Act. —

    This section is not applicable to an action to recover compensation under the Fair Labor Standards Act. Reliance Storage & Inspection Co. v. Hubbard, 50 F. Supp. 1012, 1943 U.S. Dist. LEXIS 2545 (D. Va. 1943).

    C.Effect of Running of Statute.

    A complaint filed after the time allowed by this section is subject to the statute of limitations and is time-barred. Davenport v. Deseret Pharmaceutical Co., 321 F. Supp. 659, 1971 U.S. Dist. LEXIS 15009 (E.D. Va. 1971).

    New parties brought into suit after running of statute. —

    When the statute of limitations runs between the time of commencement of a suit and time when new parties are brought into the suit, the new parties may validly plead the statute of limitations, but the original parties may not plead the statute of limitations. Phillip v. Sam Finley, Inc., 270 F. Supp. 292, 1967 U.S. Dist. LEXIS 8693 (W.D. Va. 1967).

    Despite the fact that defendant received no notice of the amendment adding her as a party to action until after the statute of limitation period had run, the amendment itself was timely made before the statute of limitations ran and the action was “commenced” by such filing, so motion for summary judgment upon the ground of the running of the statute of limitations before receipt of notice must be denied. Leathers v. Serrell, 376 F. Supp. 983, 1974 U.S. Dist. LEXIS 8599 (W.D. Va. 1974).

    Adverse possession of a chattel for five years ripens into title. Newly v. Blakey, 13 Va. (3 Hen. & M.) 57, 1808 Va. LEXIS 75 (1808); Spotswood v. Dandridge, 14 Va. (4 Hen. & M.) 139, 1809 Va. LEXIS 34 (1809); Garland v. Enos, 18 Va. (4 Munf) 504, 1815 Va. LEXIS 50 (1815); Layne v. Norris, 57 Va. (16 Gratt.) 236, 1861 Va. LEXIS 4 (1861); Morris v. Lyon, 84 Va. 331 , 4 S.E. 734 , 1888 Va. LEXIS 84 (1888).

    And possessor may maintain action for recovery of property. —

    A plaintiff in detinue, who, after having had five years peaceable possession of property, acquired without force or fraud, lost that possession, may regain it on the mere ground of his previous possession, on the same principle that a defendant may protect himself, on that length of possession, under the act of limitations. Newly v. Blakey, 13 Va. (3 Hen. & M.) 57, 1808 Va. LEXIS 75 (1808) (see also Owen v. Sharp, 39 Va. (12 Leigh) 427 (1841)).

    Property wrongfully seized under execution. —

    Property transferred by a deed of trust was taken under execution and sold, and the purchasers remained in peaceable possession thereof for five years, before suit was instituted to recover it. It was held that the statute of limitations was a bar to the recovery. Sheppards v. Turpin, 44 Va. (3 Gratt.) 373, 1847 Va. LEXIS 2 (1847).

    Property held contrary to terms of will. —

    A widow held, by virtue of her husband’s will, certain personal property for life, with power to dispose of it afterwards among his children as she should think proper. The widow bequeathed the property to trustees for the benefit of one only of those children. It was held that the child must be considered as holding the property under the widow’s will, adversely in relation to the other children, and therefore was protected by the statute of limitations from a claim in their behalf. Hudson v. Hudson, 20 Va. (6 Munf) 352, 1819 Va. LEXIS 23 (1819).

    Property held adversely by administratrix. —

    A widow qualified as administratrix of her husband, and took possession of and held certain property, in which she claimed a life estate as having been given to her by her father’s will. She was afterwards removed from her office of administratrix; but continued to hold the property, claiming it as her own for life; and she held it for more than five years after she ceased to be administratrix. It was held that the statute of limitations would protect her against any claim by the administrator de bonis non and next of kin of her husband. Livesay v. Helms, 55 Va. (14 Gratt.) 441, 1858 Va. LEXIS 39 (1858).

    D.Pleading and Practice.

    Not necessary to plead statute in action to recover property. —

    In an action to recover property, if the defendant has been in adverse possession a sufficient length of time to render the statute of limitations a bar to the action, this possession gives title; and it is not necessary to plead the statute. Layne v. Norris, 57 Va. (16 Gratt.) 236, 1861 Va. LEXIS 4 (1861).

    A plea of “the act of limitations” in those words only, to which the plaintiff replies generally, is good after verdict. Cook v. Darby, 18 Va. (4 Munf) 444, 1815 Va. LEXIS 31 (1815).

    Time of filing plea is in discretion of trial court. —

    The time of filing pleas is a matter within the sound discretion of the trial court, and the trial court did not abuse its discretion in allowing the defendants to file a plea of the statute of limitations in this section on the day of the trial. Vance v. Maytag Sales Corp., 159 Va. 373 , 165 S.E. 393 , 1932 Va. LEXIS 203 (1932).

    Instruction as to rights of intervenor. —

    In an action to recover for the burning of plaintiff’s house, in which an insurance company intervened, the court properly refused to instruct the jury that in determining defendant’s liability to the insurance company, it might consider the fact that the insurance company made no demand on defendant for more than five years after the fire; for, as the plaintiff, through whom the intervenor claimed, was not barred by the statute of limitations, the time of intervention was immaterial. Norfolk & W. Ry. v. Thomas, 110 Va. 622 , 66 S.E. 817 , 1910 Va. LEXIS 104 (1910).

    Federal courts must adopt the limitation of this section in diversity cases. —

    In a diversity case tried in Virginia, Guaranty Trust Co. v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945), compels adoption of the requirement, applicable in the State courts of Virginia, that actions for personal injuries “be brought within two years next after the right to bring the same shall have accrued.” Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    But five-year limitation governs father’s action for medical care of child. —

    In action by father to recover the pecuniary loss he has sustained by being required to furnish medical treatment to his child and by losing the child’s services, it was held that the plaintiff had a separate cause of action, not growing out of a personal injury to himself, but for the pecuniary loss suffered by his estate; that such an action could be brought by a personal representative under § 64.1-145 [now see § 64.2-520 ] in the event of plaintiff’s death and that the five-year statute of limitation is applicable. Watson v. Daniel, 165 Va. 564 , 183 S.E. 183 , 1936 Va. LEXIS 240 (1936).

    CIRCUIT COURT OPINIONS

    Applicability. —

    Statute did not apply because it was expressly applicable to suits for damages, and plaintiff sought rescission, not damages. Good v. Weaver, 98 Va. Cir. 493, 2016 Va. Cir. LEXIS 330 (Rockingham County Aug. 22, 2016).

    Tort claims based on toxic mold infestation not time-barred. —

    Where a student sued a school board and its employees, alleging gross negligence and fraud based on injuries he allegedly suffered due to toxic mold infestation of an elementary school, as his diagnosis of mold-related illness and the attribution of his illness to mold infestation at the school did not occur until less than two years before the suit was filed, the suit was not time-barred. Simpson v. Thorsen, 84 Va. Cir. 252, 2012 Va. Cir. LEXIS 7 (Suffolk Jan. 31, 2012).

    Failure to sue proper party. —

    Where the original action against an estate was not proper as actions against an estate are not recognized, and suits have to be filed against a proper party, which the decedent, being dead, was not, there was no misnomer and the action was barred by the statute of limitations. Hanson v. Brooks, 56 Va. Cir. 290, 2001 Va. Cir. LEXIS 461 (Norfolk July 31, 2001).

    Wife could not be substituted for a husband who was incorrectly named as party defendant in a motion for judgment in plaintiff’s personal injury action; no misnomer had occurred because the right person was not incorrectly named, and there could be no relation back under § 8.01-6 because it was not shown that the wife received notice of the action within the two-year limitation period of § 8.01-243 . Babbington v. Neumann, 70 Va. Cir. 9, 2005 Va. Cir. LEXIS 304 (Alexandria Apr. 18, 2005).

    In a motor vehicle accident case, defendant’s plea in bar was sustained as plaintiff’s failure to name the correct defendant was a mistake in identification and was not a misnomer, but a misjoinder, because, when plaintiff named the driver’s estranged ex-husband as the defendant, that was not a mistake in the spelling or an inversion of the driver’s name as it simply was not her name; and the ex-husband was never the intended party to be sued; further, because the amended complaint changed the party to be sued and the driver was not served nor named a party until after the applicable two-year statute of limitation period had expired, plaintiff was barred from bringing her claim under the relation back provision. Hendrix v. Legovini, 2017 Va. Cir. LEXIS 340 (Fairfax County Oct. 31, 2017).

    Expiration of statute for new defendants. —

    Medical waste incident occurred March 31, 2017, so the statute of limitations expired on March 31, 2019; plaintiff filed the motion to amend within the period of the statute of limitations but failed to ensure the new defendants were properly added by obtaining leave of the court prior to the expiration of the limitation period, and thus the statute of limitations had now expired for the new defendants. Allowing the amendment would be futile and was denied. Freeman v. Curtis Bay Med. Waste Servs. Va., L.L.C., 102 Va. Cir. 245, 2019 Va. Cir. LEXIS 263 (Petersburg June 21, 2019).

    Actions by parent or guardian. —

    Doctor’s plea in bar and motions to dismiss and to join a child and his father were denied because the statute at issue did not expressly or implicitly restrict or bar the mother’s common-law right of action for medical expenses in the manner alleged by the doctor where the first clause of the statute did not expressly state that a personal injury action on behalf of the child must be pending before the mother could bring her claim, the statute did not clearly express a legislative intent to change the common law and abridge the mother’s right of action, and the mother’s claim for medical expenses and the child’s personal injury claim were governed by different statutes of limitation. Pancho v. Johnson, 94 Va. Cir. 64, 2016 Va. Cir. LEXIS 110 (Norfolk July 25, 2016).

    Guardian’s complaint, which was filed less than one year after the guardian was appointed, was timely filed because the guardian proved the patient was incapacitated prior to the incident and never regained capacity; a doctor’s testimony was sufficient to rebut the presumption of capacity and prove that the patient was incapacitated while the doctor was treating her, and the patient was not going to, and did not, regain capacity. Byington v. Sentara Life Care Corp., 94 Va. Cir. 70, 2016 Va. Cir. LEXIS 198 (Norfolk Dec. 30, 2016).

    Accrual of action. —

    Plaintiff was not entitled to reconsideration of the statute of limitations because maritime law did not wholly and unequivocally follow either a two-disease rule or an indivisible cause of action rule (single-disease rule), general maritime law and the Federal Employers’ Liability Act did not enjoy a symbiotic relationship, the Uniform Statute of Limitations for Maritime Torts prevented the court from utilizing the state statute of limitations for asbestos-related injuries, and the effect of supplementing the Uniform Statute of Limitations for Maritime Torts with state law was that the three-year statute of limitations for an asbestos-related injury accrued when an asbestos-related injury or disease was first communicated to the plaintiff. Ferrell v. 3M Co., 2016 Va. Cir. LEXIS 228 (Newport News Dec. 19, 2016).

    Statute not tolled where renewed action not commenced within limitation period. —

    In a plaintiff’s timely filed suit against a decedent to recover for car accident injuries, the plaintiff failed to substitute the decedent’s administrator for the decedent within the § 8.01-229 time period so as to toll the two-year statute of limitations. Thus, the plaintiff’s refiled suit against first the decedent (who was not a proper party) and then the administrator (as a substituted party for the decedent) was barred by § 8.01-243 . Martin v. DeJarnette, 67 Va. Cir. 168, 2005 Va. Cir. LEXIS 166 (Charlottesville Mar. 22, 2005).

    Subdivision B 2 of § 8.01-229 did not operate to extend a statute of limitations in a driver’s suit to recover for damages sustained in a collision because the tolling provision of subdivision E 3 of § 8.01-229 , which allowed party who suffered nonsuit to recommence his action within a certain period, was limited to pleading a new substantive cause of action. A new cause of action was not pleaded and the pending action, instituted outside of the original limitation period and outside of the six-month period following the nonsuit, was not timely. Scott v. Gardner, 73 Va. Cir. 417, 2007 Va. Cir. LEXIS 224 (Danville July 11, 2007).

    Statute not tolled where action is not recommenced under subdivision E 3 of § 8.01-229 . —

    When the airline passenger filed her current complaint after suffering a nonsuit she did not “recommence” her “action” as required by subdivision E 3 of § 8.01-229 because the present action with an ad damnum of $500,000.00 was not the same action as the nonsuited action with an ad damnum of $325,000.00. As such, the tolling provisions of subdivision E 3 of § 8.01-299 did not apply and her claims were barred by subsection A of § 8.01-243 . Spear v. Metro. Wash. Airports Auth., 78 Va. Cir. 456, 2009 Va. Cir. LEXIS 184 (Loudoun County Aug. 12, 2009).

    Statute not tolled by Supreme Court's emergency COVID orders. —

    Driver was entitled to have his plea in bar granted with respect to an injured passenger’s claims arising from a motor vehicle accident where the passenger’s two-year statute of limitations had not expired during the tolling period set forth in a Supreme Court of Virginia order, and as a result, his statute of limitations period was not tolled. Since the limitations period expired on July 28, 2020, and he had not filed his complaint until November 30, 2020, the passenger’s complaint was barred by the statute of limitations. English v. Quinn, 2022 Va. Cir. LEXIS 7 (Roanoke Feb. 7, 2022).

    Tolling by incapacity. —

    As the original two-year period of limitations had expired by the date of the nonsuit, plaintiff had six months from that date to recommence her case, but she was adjudicated incapacitated, and her conservator filed the complaint two days after the expiration of the six-month period to refile; as the statute permitted tolling if plaintiff became incapacitated at some point before the expiration of the statute of limitations, and the onset of plaintiff’s incapacitation was not clear, defendants’ plea in bar was overruled and a hearing was to be allowed. Byington v. Sentara Life Care Corp., 94 Va. Cir. 70, 2016 Va. Cir. LEXIS 117 (Norfolk Aug. 1, 2016).

    Claim for damages. —

    Mother’s claim for economic damages against health care providers was barred by a two-year statute of limitations period and was distinct from the mother’s claims of loss of the child’s services. Delk v. Edens, 56 Va. Cir. 518, 2001 Va. Cir. LEXIS 322 (Newport News Oct. 17, 2001).

    Where a police officer was not named in an original warrant in debt for personal injuries against a county, but was later added by a new warrant in debt, the case did not involve a misnomer, and the officer had no notice of the original suit; thus, the second warrant in debt adding the officer was untimely and did not relate back to the original pleading. Nguyen v. Long, 60 Va. Cir. 168, 2002 Va. Cir. LEXIS 283 (Fairfax County Sept. 23, 2002).

    Economic loss rule. —

    Where a school board was not attempting to vindicate any interest outside of a contractual bargain, the loss of a bus was properly categorized as an economic loss, which did not bring the loss within the statute of limitations for contract or property damage under §§ 8.01-243 B and 8.2-725 . Sch. Bd. v. Int'l Truck & Engine Corp., 62 Va. Cir. 466, 2003 Va. Cir. LEXIS 302 (Norfolk Sept. 3, 2003).

    Five-year limitation applicable where focus on injury to property. —

    Subcontractor’s plea in bar was denied as to the homeowners’ claim for negligence per se in the application of synthetic stucco to their home, allegedly including a violation of the Virginia Uniform Statewide Building Code, § 36-97 , where the five-year statute of limitations for injuries to property under subsection B of § 8.01-243 applied, not the two-year statute of limitations under subsection A of § 8.01-243 , but the trial court could not determine from the allegations of the motion for judgment that the claim was time-barred. Chancler v. McCarthy Enters., 61 Va. Cir. 697, 2002 Va. Cir. LEXIS 426 (Loudoun County Nov. 26, 2002).

    Builder’s fraud. —

    Development company and associate were incorrect in arguing that the restaurant operator asserted in its first-amended complaint that the development company agreed to allow the restaurant operator to install sound-reducing material sometime before a certain month and, thus, the restaurant operator’s fraud claim was barred by the two-year statute of limitations set forth in subsection A of § 8.01-243 . The first-amended complaint contained no such assertion and the fraud claim was timely filed because construction delays caused the restaurant to open much later and the fraud claim was filed within the two-year limitations period. Station # 2, LLC v. Lynch, 75 Va. Cir. 179, 2008 Va. Cir. LEXIS 52 (Norfolk Apr. 30, 2008).

    Builder’s plea in bar of the statute of limitations as to the buyers’ fraud count was overruled because the builder breached its statutory duty in 2008, the action was filed in 2009, was nonsuited, and brought again in 2010. Winston v. Tingley Constr. Co., 97 Va. Cir. 163, 2013 Va. Cir. LEXIS 129 (Richmond 2013).

    Duty to disclose. —

    Buyer could not maintain a direct claim under the Virginia Residential Property Disclosure Act, subsection C of § 55-524, against the sellers for allegedly failing to make certain disclosures to the buyer in a disclaimer statement that the sellers gave to the buyer of residential property that contained numerous building restrictions, as the buyer did not bring an action within one year of the time in which the buyer allegedly did not receive the proper disclosures. However, the buyer could maintain an action against the seller’s agents for claims brought ex contractu or ex delicto against them, as the buyer’s action was filed against them well within the one-year statute of limitation for personal injury, § 8.01-243 , and contracts, governed by § 8.01-246 , running from the settlement date regarding the relevant real estate transaction. McGlen v. Barrett, 78 Va. Cir. 90, 2009 Va. Cir. LEXIS 6 (Fairfax County Jan. 9, 2009).

    Injury to land. —

    Defendants were not entitled to a special plea in bar as the five-year statute of limitations in § 8.01-243 did not start running with the original excavation that removed a portion of the lateral support for plaintiff’s land; each subsequent erosion that occurred as a result inflicted a new injury and gave rise to a new cause of action. Lee v. Lemon, 71 Va. Cir. 283, 2006 Va. Cir. LEXIS 255 (Salem July 17, 2006).

    Lot owner’s negligence claims related to the impacts of a delinquent tax sale of an adjacent lot were subject to the five year limitations period set forth in subsection B of § 8.01-243 , rather than the two-year limitations period of subsection A of § 8.01-243 , where it appeared that the lot was in the same condition after the sale of the adjacent lot, the owner claimed that the lot was not available for the same use because it had become nonconforming, and thus, the claim was one for injury to property. Stone v. Moss, 75 Va. Cir. 161, 2008 Va. Cir. LEXIS 38 (Norfolk Apr. 18, 2008).

    Actions for nuisances. —

    Trial court granted the power company’s motion for summary judgment that the nuisance alleged in plaintiffs’ complaints were barred by the statute of limitations because the power company and plaintiffs agreed that the dumping of fly ash began in 2002 and that the original actions were filed in 2009; the statute of limitations for a personal action for injury to person or property was five years from accrual of the cause of action; the complaints were replete with allegations supporting the permanent and enduring nature of the alleged nuisance; and plaintiffs’ cause of action for a permanent nuisance accrued when the damage first occurred in 2002. Fentress Families Trust v. Va. Elec. & Power Co., 93 Va. Cir. 98, 2016 Va. Cir. LEXIS 52 (Chesapeake Mar. 25, 2016).

    Injury to property. —

    Count III, alleging negligence, was not barred by the two year statute of limitations applicable to personal injury because defendant never offered an argument about how the negligence claim of plaintiffs constituted an action for personal injury for which there was a two year statute of limitation from the date when the injury occurred; and plaintiffs were correct that their claim for monetary damages was for the loss of property and not personal injury, and the applicable statute of limitations was five years. Lawson v. Dehnert, Clarke & Co., P.C., 107 Va. Cir. 450, 2007 Va. Cir. LEXIS 3096 (Northumberland County Nov. 28, 2007).

    Date on which statute of limitations begins to run. —

    Trial court granted the diocese and convent’s plea in bar directed against the former minor’s lawsuit filed against them and based on inappropriate touching by an academic teacher at the school that they operated and supervised, and which conduct occurred some 25 years before the former minor filed suit against them; while the normal statute of limitations for personal injuries was two years, that two years did not start to run until the former minor reached the age of majority, and even that time could be extended if the fact of injury and its causal connection to sexual abuse was not known until it was communicated to a plaintiff, subdivision 6 of § 8.01-249 , the General Assembly was entitled to and did define the accrual date for filing a civil action based on an intentional tort committed by a natural person against a minor in Va. Const., Art. IV, § 14, para. 4, and since the extended limitations period of subdivision 6 of § 8.01-249 did not apply because the diocese and convent were not natural persons, the trial court granted their pleas in bar. McConville v. Rhoads, 67 Va. Cir. 392, 2005 Va. Cir. LEXIS 177 (Norfolk June 8, 2005).

    False imprisonment. —

    Trial court found that police officer’s claim that other officers forcibly removed him from his home and took him to a police station where he was held against his will was subject to the two-year statute of limitations contained in this section. Young v. City of Norfolk, 62 Va. Cir. 307, 2003 Va. Cir. LEXIS 296 (Norfolk July 17, 2003).

    Date of injury determinative. —

    Where a malpractice claim arose from a single, isolated act, the statute of limitations began to run when the wrong was done and not when the patient discovered his damages; the patient’s claim based on a misdiagnosis was barred by the two-year statute of limitations. Hewlette v. Proffer, 56 Va. Cir. 515, 2001 Va. Cir. LEXIS 493 (Norfolk Oct. 16, 2001).

    Doctor’s plea in bar filed against a wrongful death and survival complaint arising from the death of the survivors’ decedent was overruled, as the survivors’ complaint was filed within two years of the date that the decedent’s heart condition worsened prior to his death, which was held to be the date the triggering injury was sustained. Byun v. Kim, 2007 Va. Cir. LEXIS 49 (Fairfax County Mar. 12, 2007).

    Husband and wife’s complaint alleged defendants’ negligent installation of a heating, ventilation, and air-conditioning system caused them to become ill due to exposure to mold and other organisms. As the complaint alleged the wife first had symptoms less than two years before suit was filed, her personal injury claim was not barred by subsection A of § 8.01-243 ; but as the complaint was silent as to when the husband first had symptoms, his claim was time-barred. Schaefer v. Tectonics, II, Ltd., 77 Va. Cir. 1, 2008 Va. Cir. LEXIS 94 (Nelson County Feb. 26, 2008).

    Statute of limitations did not accrue for a doctor’s failure to administer a treatment until the injury to the patient’s fetus first occurred because the patient could not sustain injury from the alleged negligent failure unless and until she became pregnant and the actionable injury occurred within a four-week period; the patient sustained injury within a four-week window between the sixteenth and twentieth weeks of pregnancy. Brown v. Tashman, 93 Va. Cir. 262, 2016 Va. Cir. LEXIS 120 (Fairfax County May 2, 2016).

    Patient entitled to jury trial on issue of whether statute was tolled. —

    Where the patient alleged that a fraud procured upon her by her surgeon tolled the statute of limitations under subdivision C 2 of § 8.01-243 , the circuit court declined to impose its factual findings and rule on the limitations issue, but rather granted the patient’s demand for a jury trial. Dixon v. Messer, 61 Va. Cir. 527, 2003 Va. Cir. LEXIS 134 (Norfolk May 22, 2003).

    Date of injury in conflict. —

    Where a patient’s condition would result in renal failure without treatment, there was no change in condition; since the point at which an injury occurred was in conflict, a statute of limitations assertion by a physician was denied. In re Reynolds v. Riverside Healthcare Assoc., 60 Va. Cir. 322, 2002 Va. Cir. LEXIS 298 (Newport News County Nov. 7, 2002).

    Trial court found that a dentist’s relationship with a patient terminated when he transferred responsibility for her care to another dentist, and it granted the dentist’s plea in bar to the patient’s claim alleging malpractice because he transferred responsibility for the patient’s care to the other dentist more than two years before the patient filed suit against him. Millman v. Snyder, 65 Va. Cir. 62, 2004 Va. Cir. LEXIS 105 (Fairfax County May 4, 2004).

    Tortious interference causing breach or termination of relationship. —

    While a physician’s allegations of injury to a property right were timely under subsection B of § 8.01-243 , and undermined the immunity granted by 42 U.S.C.S. § 11111 and § 8.01-581.16 , the allegations were insufficient to draw conclusions regarding whether improper methods were used by the owner of a practice group that interfered with the physician’s contract with a hospital. Atta v. Kelly, 84 Va. Cir. 272, 2012 Va. Cir. LEXIS 114 (Salem Feb. 3, 2012).

    Discovery of injury. —

    Although two patients were injected with Botulinum Toxin instead of Botox more than two years before filing their medical malpractice actions, the patients’ claims were saved under subdivisions C 1 and C 2 of § 8.01-243 , where they filed suit within one year of the discovery because Botulinum had no therapeutic or diagnostic effect and the patients alleged that the doctor intentionally prevented them from discovering their injuries. Smith v. Berman, 78 Va. Cir. 310, 2009 Va. Cir. LEXIS 161 (Loudoun County May 5, 2009).

    Continuous, uninterrupted treatment. —

    Medical associations were denied summary judgment on the ground that an executrix’s cause of action was barred by the two year statute of limitations because there were several material facts in dispute; it was disputed whether x-rays were isolated referrals or part of continuing services, and if the latter, whether the associations continued to examine or treat the decedent after the second x-ray, despite the fact he could have been referred to other physicians. Dickens v. Jurko, 95 Va. Cir. 519, 2003 Va. Cir. LEXIS 391 (Chesapeake Mar. 11, 2003).

    Patient timely filed a medical malpractice action within the two-year statute of limitations because the doctor provided continuous, uninterrupted treatment from the date of injury through the date of the delivery of the patient’s child, which tolled the date of accrual; as a result of the patient’s sensitization, the doctor ordered a treatment plan for the duration of her pregnancy. Brown v. Tashman, 93 Va. Cir. 262, 2016 Va. Cir. LEXIS 120 (Fairfax County May 2, 2016).

    Doctor did not provide continuous, substantially uninterrupted care for the patient for blood sensitization-related issues because the evidence established a cessation in treatment after the delivery of the patient’s second child. Brown v. Tashman, 93 Va. Cir. 262, 2016 Va. Cir. LEXIS 120 (Fairfax County May 2, 2016).

    When fraud was discovered. —

    When an employee sued a physician for fraud, alleging that the physician misrepresented the employee’s medical history in a report to the Virginia Workers’ Compensation Commission, the employee’s claim was time-barred because he admitted he discovered the fraud when it was committed and his claim was not filed within two years after the fraud was discovered. Taylor v. Robinson, 62 Va. Cir. 515, 2003 Va. Cir. LEXIS 310 (Danville Sept. 29, 2003).

    Shareholder’s fraud and breach of fiduciary duty claims against a corporation and stockholders was time-barred because, based on a memorandum sent by the shareholder and his retention of a law firm, it was found that he discovered the facts forming the basis of his claims more than two years before the suit was filed; however, those admissions did not necessarily bar the other shareholders from their claims of fraud and breach of fiduciary duty. Conceivably, there may have been some reason why the other shareholders were unable to discover any harm until after two years before the suit was filed. Parsch v. Massey, 72 Va. Cir. 121, 2006 Va. Cir. LEXIS 304 (Charlottesville Oct. 4, 2006).

    Courts dismissed fraud claims during the demurrer stage or its equivalent. Thus, there being no allegation that the investor could not have discovered the fraud any sooner than the two-year allotted time immediately preceding the filing of the action, the claims were time-barred under the provisions of §§ 8.01-243 and 8.01-249.1.Schur v. Sprenkle, 84 Va. Cir. 418, 2012 Va. Cir. LEXIS 132 (Richmond Apr. 11, 2012).

    In a case arising from the nonrepayment of two loans from the trust to an entity in which the first co-trustee had a financial interest, the claim of fraud separately alleged in Count I accrued when the second co-trustee knew or should have known of the first co-trustee’s fraudulent scheme, in which the 12th accounting showed that the repayment of the loan as a deposit in transit, but the 13th account showed that the loans were not repaid by the end of 2003; and the court found that the second co-trustee knew or should have known of the fraud by notice of the content of the Court’s Commissioner of Accounts’ July 8, 2004 letter, more than two years before suit was filed; thus, Count I was barred by the two-year statute of limitations. Lawson v. Dehnert, Clarke & Co., P.C., 107 Va. Cir. 450, 2007 Va. Cir. LEXIS 3096 (Northumberland County Nov. 28, 2007).

    Breach of fiduciary duty and fraud claims were barred by the two-year statute of limitation because a limited liability company and a guarantor knew they were not being invited to participate in discussions and decisions regarding the development of property. Sea Bay Hotel, LLC v. Gosnell, 97 Va. Cir. 250, 2017 Va. Cir. LEXIS 349 (Fairfax County Dec. 7, 2017).

    Fraud claim was not time-barred. —

    Subsection A of § 8.01-243 did not bar a lessee’s fraud claim where the lessee could not have known of the building owners’ alleged fraudulent representations until it discovered that they were not working to allow sound attenuation experts into the upper story condominiums, but instead had filed an injunction to prevent live music at the lessee’s restaurant. Station # 2, LLC v. Lynch, 75 Va. Cir. 179, 2008 Va. Cir. LEXIS 51 (Norfolk Apr. 30, 2008).

    Emotional distress resulting from fraud. —

    No recovery for emotional distress, which had a two-year limitation, could be had because the emotional distress a purchaser alleged, and its resulting damages grew, out of fraud and was wholly derivative from it, was its fruit; no physical injury was alleged, no emotional distress of a “severe” or other nature existed contemporaneously with her discovery of the alleged fraud but occurred some months after, and no extraordinary features appeared. Celeste v. Bayliss, 1986 Va. Cir. LEXIS 187 (Frederick County July 23, 1986).

    Reasonable due diligence. —

    Creditor’s motion to plea in bar of the statute of limitations was denied because constructive notice could not begin on the date a deed of trust was filed without evidence that would give rise to a duty for the debtor to conduct a records search at the clerk’s office; whether the two-year time-line was started when the trustee sale was first advertised and when the debtor was served with a summons for an unlawful detainer, he filed his initial counterclaim in a timely manner. U.S. Bank Nat'l Ass'n v. Clay, 2017 Va. Cir. LEXIS 82 (Newport News May 11, 2017).

    Retroactive application of amendment. —

    Plaintiff’s suit was not time-barred although when defendant one was terminated and plaintiff uncovered defendants’ fraud, the claim was governed by § 8.01-243 and the suit was not filed within the two-year limitations period for fraud; subsection K of § 8.01-229 was applied retroactively and the suit was filed within one year of defendant one’s sentencing in a criminal case. Hudson Props. v. Gibbs, 70 Va. Cir. 17, 2005 Va. Cir. LEXIS 297 (Greensville County June 27, 2005).

    Effect of running of statute. —

    Attorney’s motion to dismiss an appeal of the lower court’s dismissal of the fraud and misrepresentation claims brought by a decedent’s son was granted where the son’s claims arose out of the attorney’s representation of him in a prior criminal proceeding and that representation occurred more than three years prior to the date the son filed his first warrant against the attorney. Morrissey v. Benjamin, 64 Va. Cir. 334, 2004 Va. Cir. LEXIS 196 (Richmond Apr. 6, 2004).

    Statute not tolled by federal insurance investigation. —

    Upon reconsideration, dismissal of the claim for fraud was determined to be appropriate because the two-year limitation period in § 8.01-243 was not tolled when an investigation for insurance fraud related to the case had been initiated pursuant to 5 U.S.C.S. § 8902(m)(1) of the Federal Employees’ Benefits Act. Russell v. Gennari, 2006 Va. Cir. LEXIS 197 (Fairfax County Oct. 27, 2006).

    Failure to show incompetence tolled statute of limitations. —

    Where the injured party wrote a letter in 1990 making demands of the funds that constituted the subject matter of the injured party’s 1997 conveyance action, the two-year statute of limitations under subsection A of § 8.01-243 had long expired, and the injured party failed to show that the statute was tolled due to the injured party’s incompetence pursuant to subdivision A 1 of § 8.01-229 since the injured party did not present sufficient evidence regarding the incompetence or the length of the incompetence. Feller v. Hild, 69 Va. Cir. 502, 1999 Va. Cir. LEXIS 771 (Amherst County Dec. 10, 1999).

    Incapacity. —

    Nursing home’s special plea in bar to the statute of limitations was overruled and the court, out of an abundance of caution, allowed discovery and an evidentiary hearing because, while the complaint filed by a patient’s conservator was filed two days after the six-month period to refile the patient’s non-suit had expired, the allegations in the complaint were inadequate to find the patient incapacitated during the relevant time period where the court was not provided with medical records, physician testimony, videotape, or testimony by any family members and all it had to rely on was the unfounded and speculative testimony of the patient’s guardian ad litem. Byington v. Sentara Life Care Corp., 2016 Va. Cir. LEXIS 111 (Norfolk Aug. 1, 2016).

    Statute tolled by filing of prior related lawsuit. —

    Although a motor company’s action for tortious interference with a business advantage was not filed until October 20, 2006, the two-year statute of limitations set forth in subsection A of § 8.01-243 was tolled by the filing of a prior related lawsuit on August 18, 2005. Thus, the court accepted August 18, 2005, as the date of filing pursuant to subdivision E 1 of § 8.01-229 . Jennings Motor Co., L.L.C. v. Jennings, 73 Va. Cir. 136, 2007 Va. Cir. LEXIS 31 (Fairfax County Mar. 23, 2007).

    Continuing treatment rule inapplicable. —

    In a motor company’s action against a partner from a limited partnership for tortious interference with a business advantage, when the company alleged that the partner had engaged in a continuous pattern and course of conduct to interfere with the motor company’s franchise relationships with two corporations by repeatedly contacting the corporations and asserting that a lease between the motor company’s dealership and the partnership was invalid, the partner’s conduct was more akin to “separate independent acts” and was not analogous to the professional services at issue in cases articulating the “continuing treatment” rule. Because the reasoning of Farley v. Goode, 219 Va. 969 , 252 S.E.2d 594 (1979) and its progeny regarding the “continuing treatment” rule does not extend to individual tortious acts that are not part of a continuing professional relationship, the two-year statute of limitations set forth in subsection A of § 8.01-243 barred the motor company from recovering damages for acts that allegedly occurred two years before the date of filing. Jennings Motor Co., L.L.C. v. Jennings, 73 Va. Cir. 136, 2007 Va. Cir. LEXIS 31 (Fairfax County Mar. 23, 2007).

    Doctors were dismissed from a dental malpractice action because the patient’s claims were barred by the statute of limitations as the last date of the patient’s treatment by each of the doctors fell well outside the two-year statute of limitations, and the continuing treatment rule was inapplicable because the physician-patient relationship between each of the doctors and the patient had terminated long before the course of treatment at the hands of others ended. Carter v. Mazin Alayssami, D.M.D., P.C., 82 Va. Cir. 148, 2011 Va. Cir. LEXIS 36 (Stafford County Jan. 28, 2011).

    Conspiracy claim. —

    Two-year statute of limitations for personal injury, rather than the five-year statute of limitations for injury to property, applied where plaintiff’s allegations made clear that the alleged tortious conduct of defendant and his alleged conspirators was aimed at plaintiff personally and was not directed at any express or implied in fact contract plaintiff may or may not have had. Schur v. Sprenkle, 86 Va. Cir. 455, 2013 Va. Cir. LEXIS 51 (Richmond May 22, 2013).

    Judgment creditor’s claim for civil conspiracy was not within the applicable statute of limitations for personal fraud, which was two years, because the creditor’s claims sounded only in fraud, and the actionable facts occurred more than two years prior to the filing of the complaint. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017), vacated, rev'd, 300 Va. 25 , 859 S.E.2d 651, 2021 Va. LEXIS 71 (2021).

    While the statute of limitations may be at least five years, the underlying wrong may in effect further restrict the period within which the conspiracy claim may be actionable; the actionable wrong must occur within at least the five-year period applicable for property claims and must then itself be unlawful at such time. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017), vacated, rev'd, 300 Va. 25 , 859 S.E.2d 651, 2021 Va. LEXIS 71 (2021).

    Claim time-barred. —

    Although the limitations period on a conversion claim had not expired at the time a son filed his first warrant against an attorney, it had expired by the time he filed the second warrant where his initial nonsuit only extended the limitations period by six months under subsection E of § 8.01-229 , and he had filed the conversion claim more than five months after the extended limitations period. Thus, the conversion claim was time-barred. Morrissey v. Benjamin, 64 Va. Cir. 334, 2004 Va. Cir. LEXIS 196 (Richmond Apr. 6, 2004).

    Although the misrepresentations alleged by the correspondence between plaintiff and defendant dealt with the denial of an insurance claim and involved the same conduct, transaction or occurrence, plaintiff was not reasonably diligent in asserting the claim of constructive fraud (plaintiff waited two years and four months to file leave to amend, and waited nearly 18 months from filing and nearly five years from the date the alleged misrepresentations were made to assert the claim of constructive fraud), and defendant would be substantially prejudiced if the claim were to relate back; thus, the motion for leave to amend was not timely and the claim was barred by the two-year statute of limitations for fraud. Hoover & Strong v. Travelers Ins. Co., 66 Va. Cir. 34, 2004 Va. Cir. LEXIS 233 (Chesterfield County Aug. 27, 2004).

    Plaintiff’s conspiracy claim was time-barred as: (1) plaintiff asserted a claim for trebled money damages, so he did not seek purely equitable remedies, (2) a claim for conspiracy under §§ 18.2-499 and 18.2-500 was a legal cause of action, whether the claim was brought on the law or chancery side, (3) the basis of the claim was fraud and fraud was a wrongful act aimed at the person, (4) as fraud invariably acted upon the person of the victim, its consequence was personal damage, and (5) the conspiracy claim was therefore time-barred whether subsection A of § 8.01-243 , which applied to fraud claims, or § 8.01-248 , which applied to personal actions for which no other limitation was specified, was relied on. Orantes v. Pollo Ranchero, Inc., 70 Va. Cir. 277, 2006 Va. Cir. LEXIS 52 (Fairfax County Mar. 9, 2006).

    Plaintiff’s claim for fraud was time-barred as the alleged fraud occurred on January 11, 2001, and plaintiff became aware of the fraud no later than March 1, 2002; plaintiff’s claim that § 8.01-243 did not apply was rejected as even though plaintiff sought largely equitable remedies, the claim was for fraud, which was actionable at law if brought for money damages. Orantes v. Pollo Ranchero, Inc., 70 Va. Cir. 277, 2006 Va. Cir. LEXIS 52 (Fairfax County Mar. 9, 2006).

    Medical malpractice action was dismissed as time-barred because the patient discovered or reasonably should have discovered that a foreign object was left in her body by the end of February 2003 when the x-rays showed something unusual or unexplained within the patient’s vaginal area, thus the action filed March 12, 2004, was outside the one-year limitations period in subdivision C 1 of § 8.01-243 . Painter v. Singh, 72 Va. Cir. 243, 2006 Va. Cir. LEXIS 218 (Fairfax County Nov. 13, 2006).

    Property buyer’s actions for fraud under subdivision 1 of § 8.01-249 were time-barred by the two-year statute of limitations under subsection A of § 8.01-243 because a reasonable person in the buyer’s position would have investigated the clear reference to land records set forth in the special warranty deed conveying the property. Bear Ridge Developers, L.L.C. v. Cooper, 78 Va. Cir. 50, 2008 Va. Cir. LEXIS 182 (Fairfax County Dec. 2, 2008).

    In a tort case brought by a pro se inmate, his claims against a correctional facility doctor were time-barred since, if the doctor was cloaked with sovereign immunity, then the Virginia Tort Claims Act controlled and the inmate’s motion for judgment was untimely. On the other hand, if the doctor was not cloaked with sovereign immunity, then the Virginia Tort Claims Act did not apply, and in that instance, the inmate’s claim was barred by § 8.01-243.2 if the action related to the conditions of his confinement, or by subsection A of § 8.01-243 if it did not. Gillikin v. Dep't of Corr., 77 Va. Cir. 374, 2009 Va. Cir. LEXIS 111 (Brunswick County Jan. 30, 2009).

    Intentional infliction of emotional distress claim by a police officer was time-barred under subsection A of § 8.01-243 where the alleged wrongful conduct that was the basis for the claim occurred more than two years before the complaint was filed and the officer did not allege facts sufficient to determine the onset of the severe emotional distress. Hueston v. Kizer, 2008 Va. Cir. LEXIS 280 (Hanover County May 29, 2008).

    Two-year statute of limitations for personal injury actions barred a passenger’s suit against the personal representative of a deceased driver. The statute was not tolled under subsection E of § 8.01-229 because the second case was instituted before the first case was nonsuited as to the defendant asserting the statute. Zahuranec v. Levine, 83 Va. Cir. 39, 2011 Va. Cir. LEXIS 64 (Fairfax County May 13, 2011).

    Declaratory judgment claim was time-barred under subsection A of § 8.01-243 because the underlying action was fraud, and it was not filed until 2012, but the alleged fraud reasonably should have been discovered by January 2006. Sun Hotel v. Summitbridge Credit Invs. III, LLC, 86 Va. Cir. 189, 2013 Va. Cir. LEXIS 4 (Fairfax County Jan. 23, 2013).

    In view of the fact that Virginia law does not recognize the ongoing existence of a pending prosecution after the order of nolle prosequi, plaintiff’s personal injury complaint was filed after the applicable statute of limitations had expired; therefore, the complaint was time-barred. Graves v. Jones, 87 Va. Cir. 138, 2013 Va. Cir. LEXIS 167 (Henrico County Oct. 1, 2013).

    Parents commenced their original wrongful death action on July 2, 2012, but nonsuited the action and commenced the present action within the six-month period allowed by filing the instant amplified complaint, but the new claims constituted a different cause of action and the nonsuit did not toll the statute of limitations on the new claims; the statute of limitations on these new claims, whether viewed as a personal injury or a wrongful death claim, was two years, which started to run upon or before the son’s death on August 18, 2010, and as the parents did not raise these new claims prior to two years later, the new claims were time-barred. Susko v. Toor, 91 Va. Cir. 372, 2015 Va. Cir. LEXIS 169 (Norfolk Nov. 12, 2015).

    Property owner’s trespass claim was barred because the statute of limitations accrued in 1982 and ran in 1987, which was well before the owner’s initial complaint was filed; the placement of underground power lines on the owner’s land in 1982 was a single act with all the damages stemming from that initial action, and thus, the cause of action accrued in 1982. TLP, LLC v. Cent. Tel. Co., 93 Va. Cir. 275, 2016 Va. Cir. LEXIS 63 (Campbell County May 4, 2016).

    Claim that a credit line deed of trust was invalid due to the alleged forgery of a wife’s signature was barred by the statute of limitations because the husband and wife did not file their claim until March of 2015, over a year after the statute of limitations; the husband was aware of the possible forgery in March of 2012 because his bankruptcy petition in 2012 demonstrated he knew of the alleged forgery at that time. Bekenstein v. Bank of Am., N.A., 2017 Va. Cir. LEXIS 355 (Richmond Sept. 28, 2017).

    Defendant’s plea in bar was sustained because plaintiff did not file the complaint within two years from the date of the accident as the relation back provisions did not apply because no evidence was presented that defendant received notice of the complaint within two years of the date of the accident. Sparks v. Lucas, 98 Va. Cir. 262, 2018 Va. Cir. LEXIS 43 (Fairfax County Mar. 23, 2018).

    Guarantees. —

    Fraud claims were time-barred because the statute of limitations began to run when a swap agreement was signed, and guarantors should have reasonably discovered that the documents did not render the guarantees non-recourse. Sun Hotel v. Summitbridge Credit Invs. III, LLC, 86 Va. Cir. 189, 2013 Va. Cir. LEXIS 4 (Fairfax County Jan. 23, 2013).

    Claim not time-barred. —

    Personal injury claim was not time barred as: (1) the original suit was filed against defendants two and three within the two-year limit required by § 8.01-243 ; (2) after the decedent’s death, the administrator properly amended the complaint to include a wrongful death action under § 8.01-56 ; (3) after a voluntary nonsuit, the administrator brought the second action within the six-month tolling period under subdivision E 3 of § 8.01-229 ; and (4) an increased ad damnum in the refiled action did not convert the suit into a new cause of action. Jackson v. Vanga, 85 Va. Cir. 266, 2012 Va. Cir. LEXIS 90 (Norfolk Aug. 24, 2012).

    Because the electrical outlet had been installed more than five years ago, the statute of limitations had run on its installation, but not on its repeated use by plaintiff to charge his boat, as the outlet was on defendants’ property and its use represented a temporary trespass. Rustgi v. Webb, 105 Va. Cir. 199, 2020 Va. Cir. LEXIS 81 (Fairfax County June 7, 2020).

    Although plaintiff and his predecessor in interest docked their pontoon boat in the same place habitually for more than five years, plaintiff’s repeated acts of trespass during the last five years were temporary rather than continuous as the boat was removed for use on the lake, which was not defendants’ property, creating a new cause of action each time it was redocked at the retaining wall on the servient lot; thus, the statute of limitations as to the trespass and nuisance regarding docking the boat had not yet run. Rustgi v. Webb, 105 Va. Cir. 199, 2020 Va. Cir. LEXIS 81 (Fairfax County June 7, 2020).

    CASE NOTES

    Relation back provisions did not apply. —

    Defendant’s plea in bar was sustained because plaintiff did not file the complaint within two years from the date of the accident as the relation back provisions did not apply because no evidence was presented that defendant received notice of the complaint within two years of the date of the accident. Sparks v. Lucas, 98 Va. Cir. 262, 2018 Va. Cir. LEXIS 43 (Fairfax County Mar. 23, 2018).

    § 8.01-243.1. Actions for medical malpractice; minors.

    Notwithstanding the provisions of § 8.01-229 A and except as provided in subsection C of § 8.01-243 , any cause of action accruing on or after July 1, 1987, on behalf of a person who was a minor at the time the cause of action accrued for personal injury or death against a health care provider pursuant to Chapter 21.1 (§ 8.01-581.1 et seq.) shall be commenced within two years of the date of the last act or omission giving rise to the cause of action except that if the minor was less than eight years of age at the time of the occurrence of the malpractice, he shall have until his tenth birthday to commence an action. Any minor who is ten years of age or older on or before July 1, 1987, shall have no less than two years from that date within which to commence such an action.

    History. 1987, cc. 294, 645.

    Law Review.

    For comment on Virginia’s Birth-Related Neurological Injury Compensation Act, § 38.2-5000 et seq., see 22 U. Rich. L. Rev. 431 (1988).

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Limitation of Actions, § 19.

    CASE NOTES

    Constitutionality. —

    The medical malpractice statute of limitations for minors, § 8.01-243.1 , which reduced the tolling period for infants with medical malpractice claims by requiring that any such actions brought on their behalf shall be commenced within two years of the date of the last act or omission giving rise to the cause of action, except that if the minor was less than eight years of age at the time of the occurrence of the malpractice he shall have until his tenth birthday to commence an action, did not violate the equal protection and due process clauses of the state and federal Constitutions, and was not special legislation in violation of Va. Const., Art. IV, § 14. Willis v. Mullett, 263 Va. 653 , 561 S.E.2d 705, 2002 Va. LEXIS 57 (2002).

    CIRCUIT COURT OPINIONS

    Continuing treatment exception to statute of limitations not applicable. —

    Continuing treatment rule did not toll the statute of limitations under § 8.01-243.1 in medical malpractice action, where the injured party went to the hospital but was not admitted, and he was transferred to another medical facility on the same day, as there was no continuity of treatment. Bryan v. Shore Health Servs., 58 Va. Cir. 144, 2002 Va. Cir. LEXIS 137 (Northampton County Jan. 9, 2002).

    Actions by parent or guardian. —

    Doctor’s plea in bar and motions to dismiss and to join a child and his father were denied because the statute at issue did not expressly or implicitly restrict or bar the mother’s common-law right of action for medical expenses in the manner alleged by the doctor where the first clause of the statute did not expressly state that a personal injury action on behalf of the child must be pending before the mother could bring her claim, the statute did not clearly express a legislative intent to change the common law and abridge the mother’s right of action, and the mother’s claim for medical expenses and the child’s personal injury claim were governed by different statutes of limitation. Pancho v. Johnson, 94 Va. Cir. 64, 2016 Va. Cir. LEXIS 110 (Norfolk July 25, 2016).

    § 8.01-243.2. Limitations of actions by confined persons; exhaustion.

    No person confined in a state or local correctional facility shall bring or have brought on his behalf any personal action relating to the conditions of his confinement until all available administrative remedies are exhausted. Such action shall be brought by or on behalf of such person within one year after cause of action accrues or within six months after all administrative remedies are exhausted, whichever occurs later.

    History. 1998, c. 596; 1999, c. 47.

    The 1999 amendment inserted “or local” preceding “correctional facility.”

    CASE NOTES

    Applicability. —

    Inmate’s negligence action against the Commonwealth of Virginia was not time-barred by the inmate statute, § 8.01-243.2 ; instead, § 8.01-195.7 , the statute of limitations of the Virginia Tort Claims Act, §§ 8.01-195.1 to 8.01-195.9 , controlled the action even if it related to conditions of confinement because it was a tort claim against the Commonwealth. Ogunde v. Commonwealth, 271 Va. 639 , 628 S.E.2d 370, 2006 Va. LEXIS 45 (2006).

    Trial court properly granted a plea of the statute of limitations in an arrestee’s suit seeking damages resulting from an allegedly improper body cavity search because the arrestee was “confined” within the meaning of § 8.01-243.2 , and the body cavity search related to the conditions of her confinement. Bing v. Haywood, 283 Va. 381 , 722 S.E.2d 244, 2012 Va. LEXIS 40 (2012).

    Trial court properly dismissed plaintiff’s state law assault and battery claims under the one-year statute of limitations, where plaintiff’s claims were brought nearly seven months after the expiration of the statute of limitations. Gemaehlich v. Johnson, 599 Fed. Appx. 473, 2014 U.S. App. LEXIS 22882 (4th Cir. 2014).

    Inmate exhausted administrative remedies. —

    Where the evidence showed that an inmate reported an officer’s sexual conduct within 30 days of the last attack, cooperated with an investigation, and had a grievance proceed through the administrative processes, the inmate had exhausted all administrative remedies prior to filing an action in a court of law. Billups v. Carter, 268 Va. 701 , 604 S.E.2d 414, 2004 Va. LEXIS 139 (2004).

    Relationship with Virginia Tort Claims Act. —

    To apply the limitations period of the inmate statute, § 8.01-243.2 , to an inmate’s negligence action against the Commonwealth of Virginia would have impliedly repealed the tolling provisions in subdivision 7 of § 8.01-195.3 of the Virginia Tort Claims Act, §§ 8.01-195.1 to 8.01-195.9 ; instead of such a disfavored result, the provisions could be harmonized, because the inmate statute applies to all classes of litigation pertaining to conditions of confinement, while the Act applies only to tort actions against the Commonwealth. Ogunde v. Commonwealth, 271 Va. 639 , 628 S.E.2d 370, 2006 Va. LEXIS 45 (2006).

    Claim held barred. —

    Where state inmate’s appeal from his institutional conviction was finished on May 30, 2000, under § 8.01-243.2 he had until November 30, 2000, to file his claim alleging a deprivation of his constitutional rights by being subjected to loss of good-time credits and isolated confinement for using drugs without a confirming drug test; his federal district court complaint, filed on October 22, 2001, was barred. Alexander v. Gilmore, 202 F. Supp. 2d 478, 2002 U.S. Dist. LEXIS 8418 (E.D. Va. 2002).

    Claimant’s state law claims were barred by the statute of limitations contained in § 8.01-243.2 because the statute of limitations provision in the statute applied to all personal actions relating to the conditions of the claimant’s confinement regardless of whether the claimant was still incarcerated when the action was filed. Lucas v. Woody, 287 Va. 354 , 756 S.E.2d 447, 2014 Va. LEXIS 52 (2014).

    Former detainee’s claims that he was attacked and beaten by jail officers while confined at a city jail were time-barred because the claims related to his conditions of confinement and the particular statute of limitations applied to all confinement conditions suits regardless of whether the plaintiff was incarcerated when suit was filed. Scales v. Markham, No. 7:13CV00597, 2014 U.S. Dist. LEXIS 137508 (W.D. Va. Sept. 29, 2014).

    Claim timely. —

    Dismissal of a common-law assault and battery claim brought by an inmate against an officer based on sexual assault was improperly dismissed because an action was filed within the requisite time period; the period was extended until six months after the grievance process had ended. Billups v. Carter, 268 Va. 701 , 604 S.E.2d 414, 2004 Va. LEXIS 139 (2004).

    CIRCUIT COURT OPINIONS

    Claim held barred. —

    In a tort case brought by a pro se inmate, his claims against a correctional facility doctor were time-barred since, if the doctor was cloaked with sovereign immunity, then the Virginia Tort Claims Act controlled and the inmate’s motion for judgment was untimely. On the other hand, if the doctor was not cloaked with sovereign immunity, then the Virginia Tort Claims Act did not apply, and in that instance, the inmate’s claim was barred by § 8.01-243.2 if the action related to the conditions of his confinement, or by subsection A of § 8.01-243 if it did not. Gillikin v. Dep't of Corr., 77 Va. Cir. 374, 2009 Va. Cir. LEXIS 111 (Brunswick County Jan. 30, 2009).

    § 8.01-244. Actions for wrongful death; limitation.

    1. Notwithstanding the provisions of § 8.01-229 B, if a person entitled to bring an action for personal injury dies as a result of such injury with no such action pending before the expiration of the limitations period set forth in § 8.01-243 , then an action under § 8.01-50 may be commenced within the time limits specified in subsection B of this section.
    2. Every action under § 8.01-50 shall be brought by the personal representative of the decedent within two years after the death of the injured person. If any such action is brought within such period of two years after such person’s death and for any cause abates or is dismissed without determining the merits of such action, the time such action is pending shall not be counted as any part of such period of two years and another action may be brought within the remaining period of such two years as if such former action had not been instituted. However, if a plaintiff suffers a voluntary nonsuit pursuant to § 8.01-380 , the nonsuit shall not be deemed an abatement nor a dismissal pursuant to this subsection, and the provisions of subdivision E 3 of § 8.01-229 shall apply to such a nonsuited action.

    History. Code 1950, §§ 8-633, 8-634; 1958, c. 470; 1977, c. 617; 1991, c. 722; 2008, c. 175.

    REVISERS’ NOTE

    Section 8.01-244 combines the substance of the limitation provisions of former §§ 8-633 and 8-634; the tolling provision of those sections has been transferred to § 8.01-229 D.

    Editor’s note.

    Acts 1991, c. 722, cl. 2, provides “That the provisions of this act are declaratory of the original intent of the General Assembly in enacting Chapter 617 of the 1977 Acts of Assembly” (Title 8.01).

    The 2008 amendments.

    The 2008 amendment by c. 175 substituted “expiration of the limitations period set forth in § 8.01-243 ,” for “expiration of two years next after the cause of action shall have accrued,” in subsection A.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1978-1979, see 66 Va. L. Rev. 343 (1980).

    For article discussing statutes of limitation and repose in toxic substances litigation, see 16 U. Rich. L. Rev. 247 (1982).

    For article, “Civil Rights and ‘Personal Injuries’: Virginia’s Statute of Limitations for Section 1983 Suits,” see 26 Wm. & Mary L. Rev. 199 (1985).

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For annual survey article, “Civil Practice and Procedure,” see 46 U. Rich. L. Rev. 9 (2011).

    For essay, “Nonsuit in Virginia Civil Trials,” see 48 U. Rich. L. Rev. 265 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Abatement, Survival and Revival, § 30.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    The limitations period in the Virginia wrongful death statute is a substantive limitation. Riddle v. Shell Oil Co., 764 F. Supp. 418, 1990 U.S. Dist. LEXIS 19448 (W.D. Va. 1990).

    The two paragraphs of this section are inextricably interrelated, one is the predicate for the other, and the tolling provisions of § 8.01-229 B do not apply to the time limitation imposed by this section. Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318, 1986 Va. LEXIS 184 (1986).

    Subdivision E 3 of § 8.01-229 is inapplicable to wrongful death actions because subsection B of this section controls. Dodson v. Potomac Mack Sales & Serv., Inc., 241 Va. 89 , 400 S.E.2d 178, 7 Va. Law Rep. 1327, 1991 Va. LEXIS 2 (1991); Flanagan v. Virginia Beach Gen. Hosp., 406 S.E.2d 914, 8 Va. Law Rep. 433, 1991 Va. LEXIS 121 (Va. 1991).

    Because § 8.01-229 E 3 deals generally with the subject of tolling statutes of limitations and conflicts with subsection B of this section, which deals specifically with the tolling of wrongful death actions, the latter section controls for two reasons: First, § 8.01-228 provides in pertinent part that every action for which a limitation period is prescribed by law must be commenced within the period prescribed in this chapter unless otherwise specifically provided in the Code. This section provides for the limitation of wrongful death actions and a tolling period in a specific way, and thus “otherwise specifically provides” its own requirements. Second, in construing conflicting statutes, when one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, where they conflict the latter prevails. Dodson v. Potomac Mack Sales & Serv., Inc., 241 Va. 89 , 400 S.E.2d 178, 7 Va. Law Rep. 1327, 1991 Va. LEXIS 2 (1991).

    Tolling provision amendment not retroactive. —

    Lower court correctly ruled that plaintiff’s wrongful death action was time-barred because plaintiff failed to refile after nonsuit within the time prescribed by wrongful death statute of limitations in effect when original cause of action accrued; tolling provision amendment to wrongful death statute was substantive, not procedural, and therefore did not apply retroactively. Riddett v. Virginia Elec. and Power Co., 255 Va. 23 , 495 S.E.2d 819, 1998 Va. LEXIS 11 (1998).

    Joinder of a co-administrator tolled wrongful death action. —

    Section 8.01-5 permitted the joinder of a second co-administrator to a wrongful death action under the Virginia Wrongful Death Act, § 8.01-50 , because the first co-administrator was already a party plaintiff; the claims in the suit did not change as a result of the joinder; and the first co-administrator’s initial filing, without the second co-administrator, of the wrongful death claim tolled the statute of limitations for that claim under subsection B of § 8.01-244 . Addison v. Jurgelsky, 281 Va. 205 , 704 S.E.2d 402, 2011 Va. LEXIS 16 (2011).

    Statute of limitations not tolled where plaintiff not qualified as personal representative. —

    When a surviving wife was not qualified as a personal representative in any state when the wife filed a wrongful death suit in Virginia under § 26-59 and subsection B of § 8.01-50 , the wife lacked standing to maintain the action; therefore, the statute of limitations was not tolled by subsection B of § 8.01-244 and the action was properly dismissed. Fowler v. Winchester Med. Ctr., Inc., 266 Va. 131 , 580 S.E.2d 816, 2003 Va. LEXIS 68 (2003).

    Reinstatement after dismissal of cause of action. —

    Trial court erred in sustaining doctors’ pleas and dismissing a wrongful death action as barred by subsection B of § 8.01-244 because the statute of limitations for wrongful death actions in subsection B of § 8.01-244 did not bar the reinstatement of the personal representative’s action, which was dismissed under subsection B of § 8.01-335 . Conger v. Barrett, 280 Va. 627 , 702 S.E.2d 117, 2010 Va. LEXIS 261 (2010).

    Tolling provision of the Virginia Medical Malpractice Act, former § 8.01-581.9 , which tolled the statute of limitations for 120 days from the giving of notice or 60 days following issuance of an opinion by the medical review panel, applied to the two year limitations contained in the Virginia Wrongful Death Act, § 8.01-50 and subsection (B). Wertz v. Grubbs, 245 Va. 67 , 425 S.E.2d 500, 9 Va. Law Rep. 750, 1993 Va. LEXIS 17 (1993).

    Action under 42 U.S.C. § 1983. —

    In determining which state statute of limitations applies to a 42 U.S.C. § 1983 action, a federal court should apply the time bar used by the forum state for similar torts. Under this section, the limitations period for a wrongful death action is two years. Bruce v. Smith, 581 F. Supp. 902, 1984 U.S. Dist. LEXIS 19415 (W.D. Va. 1984).

    Conversion of foreign personal injury action to Virginia wrongful death action. —

    A valid foreign personal injury action may be converted to a Virginia wrongful death action, even though the foreign action was not filed within Virginia’s two-year limitations period. Riddle v. Shell Oil Co., 764 F. Supp. 418, 1990 U.S. Dist. LEXIS 19448 (W.D. Va. 1990).

    Motion for leave to amend complaint. —

    In a wrongful death case brought pursuant to § 8.01-244 in which a personal representative filed an objection to a magistrate judge’s order denying her motion for leave to amend the complaint to add a prison health service company as a defendant, the two-year limitations period under §§ 8.01-243 and 8.01-244 had passed, and the cause of action against the company could not be related back to the original filing of the lawsuit. The company had not received notice of the original complaint such that it would not be prejudiced in maintaining a defense; in the first three and a half years following the inmate’s death, the personal representative, at no point, served the company with any notice of a potential cause of action against it. Everett v. Cherry, 671 F. Supp. 2d 819, 2009 U.S. Dist. LEXIS 109983 (E.D. Va. 2009), aff'd, 412 Fed. Appx. 604, 2011 U.S. App. LEXIS 4234 (4th Cir. 2011).

    The defendant has the burden of proof to establish facts necessary to prevail on a statute of limitations plea. Lo v. Burke, 249 Va. 311 , 455 S.E.2d 9, 1995 Va. LEXIS 22 (1995).

    Decedent’s mother’s federal civil rights and state wrongful death claims against a sheriff in her amended complaint survived dismissal because, although the mother’s claims against the sheriff were filed after the two-year limitations period under §§ 8.01-243 A and 8.01-244 B had expired, the mother’s claims related back to her original complaint, pursuant to Fed. R. Civ. P. 15(c)(3)(B); the sheriff reasonably should have known that he was the proper party to the lawsuit because the mother’s original complaint described the alleged circumstances occurring in the jail over which sheriff had policy-making authority, the county sheriff’s office, of which he was in charge, was named as a party, and the original complaint recited that all of the defendants were sued in their individual capacities. Justus v. County of Buchanan, 498 F. Supp. 2d 883, 2007 U.S. Dist. LEXIS 57583 (W.D. Va. 2007).

    II.Decisions Under Prior Law.

    Editor’s note.

    The object of an action and not its form determines which statute of limitations is applicable. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216, 1968 U.S. Dist. LEXIS 7986 (E.D. Va. 1968).

    When limitation begins to run. —

    The limitation begins to run from the moment the cause of action accrues and not from the time it is ascertained that damage has actually been sustained. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216, 1968 U.S. Dist. LEXIS 7986 (E.D. Va. 1968).

    The statute of limitations begins to run from the time of the wrongful or negligent act, and not from the time of the injury. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216, 1968 U.S. Dist. LEXIS 7986 (E.D. Va. 1968).

    Right of action for wrongful death does not accrue until the death. It is granted by the statute directly for the benefit of the statutory beneficiaries, and is, in no sense, derived from the fatally injured person. Grady v. Irvine, 254 F.2d 224, 1958 U.S. App. LEXIS 3991 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60, 1958 U.S. LEXIS 414 (1958).

    Time limitation is condition on right to sue. —

    This section provides that every action hereunder must be brought within one year (now two years) after death of the injured person; and it is settled in such a case that the time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. Continental Cas. Co. v. Thorden Line, 186 F.2d 992, 1951 U.S. App. LEXIS 3675 (4th Cir. 1951).

    Right of action must exist at decedent’s death. —

    The last paragraph of this section was not intended to allow a personal representative to bring an action for wrongful death at a time, perhaps, ten, fifteen, or twenty-five years subsequent to the date of the wrong that produced death, where perhaps the decedent did not, in his lifetime, deem it practical or worthwhile to assert any legal right to recover damages, or negligently failed to bring action within the time allowed him. Street v. Consumer Mining Corp., 185 Va. 561 , 39 S.E.2d 271, 1946 Va. LEXIS 228 (1946).

    Statute tolled during pendency of action brought by foreign administrator. —

    Where death action brought by a foreign administrator was dismissed under § 26-59 because of the absence of a resident administrator and a subsequent action was brought by the nonresident administrator and a resident administratrix, under the saving provision of this section, which is to be liberally construed, the running of the limitation period was tolled during the time the prior action was pending, since it alleged the same cause of action as the subsequent proceeding and had been dismissed without determining the merits and since the plaintiffs in the two actions were substantially the same parties. McDaniel v. North Carolina Pulp Co., 198 Va. 612 , 95 S.E.2d 201 (1956), But see Harmon v. Sadjadi, 639 Va. 294 , 639 S.E.2d 294, 2007 Va. LEXIS 1 (2007), stating that the limitations period in a personal injury action commences when the foreign representative is qualified in Virginia.

    Statute not tolled by infancy of beneficiary of action. —

    The statute of limitations for wrongful death actions was not tolled by reason of infancy of the beneficiary of the wrongful death action, since the infant’s disability could not prevent the timely institution of the action in view of the fact that wrongful death actions may be brought only by and in the name of the personal representative of the deceased. Beverage v. Harvey, 602 F.2d 657, 1979 U.S. App. LEXIS 12804 (4th Cir. 1979).

    Absence of the defendant will not alone defeat the limitation of the death statute. Continental Cas. Co. v. The Benny Skou, 101 F. Supp. 15, 1951 U.S. Dist. LEXIS 1960 (D. Va. 1951), aff'd, 200 F.2d 246, 1952 U.S. App. LEXIS 3881 (4th Cir. 1952).

    Action against incarcerated convict. —

    Although a wrongful death action commenced against an incarcerated convict is an abortive proceeding, it is nevertheless an action under Rule 3:3 [see now Rule 3:2], and therefore tolls the statute of limitations under the provisions of this section. Scott v. Nance, 202 Va. 355 , 117 S.E.2d 279, 1960 Va. LEXIS 230 (1960).

    When time extended. —

    For a former action to extend the time for bringing an action for wrongful death under the Virginia statute beyond the one-year period (now two-year), it must have been brought against the same person as is named defendant in the subsequent action. Lindgren v. United States Shipping Bd. Merchant Fleet Corp., 55 F.2d 117, 1932 U.S. App. LEXIS 3714 (4th Cir.), cert. denied, 286 U.S. 542, 52 S. Ct. 499, 76 L. Ed. 1280, 1932 U.S. LEXIS 672 (1932).

    It is not to be assumed, in the absence of an express provision to that effect, that it was the intention of the legislature that the time to bring an action against one person should be extended by reason of the fact that it had been brought against someone else. Lindgren v. United States Shipping Bd. Merchant Fleet Corp., 55 F.2d 117, 1932 U.S. App. LEXIS 3714 (4th Cir.), cert. denied, 286 U.S. 542, 52 S. Ct. 499, 76 L. Ed. 1280, 1932 U.S. LEXIS 672 (1932).

    Applicable to voluntary nonsuit. —

    The provision of this section excluding the time during which any action brought within the one-year (now two-year) period is pending, where such action “for any cause abates or is dismissed without determining the merits,” is remedial in purpose, is to be liberally construed and applies to a case of voluntary nonsuit. Norwood v. Buffey, 196 Va. 1051 , 86 S.E.2d 809, 1955 Va. LEXIS 176 (1955).

    Two-year limitation in this section does not apply to an action brought in Virginia under the Tennessee wrongful death statute. Sherley v. Lotz, 200 Va. 173 , 104 S.E.2d 795, 1958 Va. LEXIS 173 (1958).

    CIRCUIT COURT OPINIONS

    When limitation period begins to run. —

    Statute of limitations for the wrongful death action was two years, which began to run on the date of the son’s death. Susko v. Toor, 91 Va. Cir. 372, 2015 Va. Cir. LEXIS 169 (Norfolk Nov. 12, 2015).

    Action must be brought within two years of death, not two years from last treatment. —

    Medical malpractice claim of negligence under the wrongful death statute was subject to the statute of limitations in § 8.01-244 , not § 8.01-243 , which by its plain language permitted the administratrix to bring the cause of action within two years of the decedent’s death, rather than within two years after the health-care providers last treated the decedent. Wright v. Eli Lilly & Co., 65 Va. Cir. 485, 2004 Va. Cir. LEXIS 295 (Portsmouth Sept. 21, 2004).

    Routine diagnostic tests and procedures not considered continuous treatment. —

    Primary care physicians’ routinely order tests and other procedures to aid in the diagnosis of the patient’s condition, such as colorectal cancer screenings, that are purely diagnostic in nature and do not constitute treatment for colon cancer. So, the patient’s claim against the physician did not fall within the continuing treatment exception to the § 8.01-244 statute of limitations for wrongful death. Watson v. Warne, 69 Va. Cir. 513, 2004 Va. Cir. LEXIS 355 (Virginia Beach Apr. 1, 2004).

    To hold that routinely ordered diagnostic tests and procedures were continuous treatment would unreasonably subject a physician to endless statutes of limitation for every screenable illness regardless of whether the patient was symptomatic. So, the court held such tests did not constitute continuous treatment. Watson v. Warne, 69 Va. Cir. 513, 2004 Va. Cir. LEXIS 355 (Virginia Beach Apr. 1, 2004).

    Tolling of statute under § 30-5. —

    In a wrongful death case, when plaintiff’s attorney, a member of the general assembly, filed a motion for judgment, § 30-5 extended the statute of limitations until 30 days after adjournment, which did not occur until after the date of filing; therefore, plaintiff’s motion for judgment was timely filed. Rich-McGhie v. City of Portsmouth, 62 Va. Cir. 518, 2002 Va. Cir. LEXIS 446 (Norfolk July 11, 2002).

    Appointment of fiduciary required. —

    Plaintiff parents did not qualify as the personal representatives of their deceased child’s estate under subsection B of § 8.01-50 and, therefore, in their wrongful death action brought against a property management corporation, the corporation’s plea in bar was granted with prejudice since the two-year statute of limitations had expired the day after the parents brought suit, thereby preventing joinder of a personal representative, who had been appointed 10 months after the suit was filed. The court refused to apply the law of Japan, as urged by the parents, because Japanese law did not require any additional step to qualify a person to bring suit on behalf of a decedent, which directly conflicted with Virginia law that required the appointment of a fiduciary. Yoshida v. Capital Props. Mgmt., 68 Va. Cir. 279, 2005 Va. Cir. LEXIS 124 (Fairfax County July 26, 2005).

    Administratrix lacked capacity to bring action. —

    Wrongful death action pursuant to subsection B of § 8.01-50 by administratrix of decedent, who was not qualified as the personal representative, did not toll the statute of limitations of § 8.01-244 because such action which was not filed by one with the right capacity or standing was a nullity. Fowler v. Winchester Med. Ctr., Inc., 59 Va. Cir. 216, 2002 Va. Cir. LEXIS 344 (Winchester July 2, 2002), aff'd, 266 Va. 131 , 580 S.E.2d 816, 2003 Va. LEXIS 68 (2003).

    Lack of standing. —

    Where an individual lacked standing to file a wrongful death action under § 8.01-50 , the individual could not be substituted as a plaintiff under Va. Sup. Ct. R. 1:8 when he qualified as a decedent’s personal representative more than two years after the death; as a result, the action was barred by the statute of limitations in § 8.01-244 . Young v. Carter, 61 Va. Cir. 682, 2002 Va. Cir. LEXIS 437 (Franklin County Nov. 12, 2002).

    Tolling under 11 U.S.C.S. § 362. —

    Because a company accepted the proposition that the automatic stay effectively barred the executrix’s ability to advance a wrongful death action for the period of time to comply with the requirements of 11 U.S.C.S. § 362, the company was estopped from arguing that subsection D of § 8.01-229 did not toll the running of the limitations period in § 8.01-244 ; as a result, the company’s special plea in bar was denied. Smith v. Adelphia Cable Communs., 63 Va. Cir. 580, 2004 Va. Cir. LEXIS 5 (Roanoke Feb. 2, 2004).

    Tolling of limitations based on affirmative misrepresentation of identity. —

    There was nothing that rose to the level of an affirmative misrepresentation of the identity of the nurse in charge of the patient at the time of the alleged negligence; even if the nurse purposely did not identify herself in the file (a theory made less probable by the fact that she made a late entry identifying herself in the file several hours later), that was at best a concealment of her identity, which was not sufficient to toll the statute of limitations. Huff v. Commonwealth, 75 Va. Cir. 244, 2008 Va. Cir. LEXIS 247 (Charlottesville June 2, 2008).

    Service of process. —

    Where an estate administrator for a deceased patient filed a wrongful death action against a health center and others, which center was owned and operated by two limited partnerships, each of which had a general partner as a member, the administrator’s service pursuant to § 8.01-304 and § 50-73.7 of the Revised Uniform Limited Partnership Act on the general partner within the two-year limitations period of § 8.01-244 was proper and withstood challenge, as service on the limited partnerships was not required by the Revised Uniform Partnership Act, § 50-73.79 et seq., but rather, it was only suggested as one possible method pursuant to § 50-73.97 .Lucas v. Med. Facilities of Am., Inc., 74 Va. Cir. 206, 2007 Va. Cir. LEXIS 180 (Roanoke County Sept. 28, 2007).

    Equitable estoppel. —

    Nurse could not have intended for the administratrix to rely on the absence of a notation in the chart, because the chart was not being maintained for the administratrix’s purposes, but rather for the purposes of other medical personnel in the hospital; thus, the nurse could not have intended for the administratrix to rely on the absence of any information linking the nurse to the patient because the nurse was not keeping records for the administratrix’s information. Therefore, equitable estoppel did not apply. Huff v. Commonwealth, 75 Va. Cir. 244, 2008 Va. Cir. LEXIS 247 (Charlottesville June 2, 2008).

    Amended complaint not barred by statute of limitations. —

    Court found that: (1) the amended complaint alleged the same set of operative facts, including a claimed struggle, that gave rise to the differing rights of action for wrongful death and civil conspiracy asserted; (2) the transaction or occurrence of a possible struggle was asserted in the 2005 motion for judgment, and it was the greater specificity of facts gained from subsequent discovery that allowed the administrator to assert a wrongful death claim based on the alleged assault, and thus, the administrator was reasonably diligent in determining what claims she might have and asserting the additional claim upon more information; and (3) although the alleged co-conspirator contended that the possibility of insurance coverage constituted actual, substantial prejudice, the court was not convinced that the timeliness of the amended motion for judgment substantially prejudiced the alleged co-conspirator; therefore, the administrator satisfied all of the requirements of § 8.01-6.1 , amending her complaint such that the rights of action filed on November 16, 2007, related back to the cause of action she initially asserted in her 2005 motion for judgment. Thus, the administrator properly recommenced her suit within the six-month period after nonsuiting the action and the administrator’s recovery was not barred by the two-year statute of limitations under §§ 8.01-244 and 8.01-248 . Clark v. Britt, 79 Va. Cir. 60, 2009 Va. Cir. LEXIS 72 (Fairfax County Apr. 24, 2009).

    New claims time-barred. —

    Parents commenced their original wrongful death action on July 2, 2012, but nonsuited the action and commenced the present action within the six-month period allowed by filing the instant amplified complaint, but the new claims constituted a different cause of action and the nonsuit did not toll the statute of limitations on the new claims; the statute of limitations on these new claims, whether viewed as a personal injury or a wrongful death claim, was two years, which started to run upon or before the son’s death on August 18, 2010, and as the parents did not raise these new claims prior to two years later, the new claims were time-barred. Susko v. Toor, 91 Va. Cir. 372, 2015 Va. Cir. LEXIS 169 (Norfolk Nov. 12, 2015).

    Administrator could not sue. —

    As a decedent could not initiate a personal injury suit against two groups before her death since the limitations period had passed, the administrator could not sue the groups for wrongful death under § 8.01-50 on the decedent’s behalf under § 8.01-244 ; the claims filed against two servants of the groups did not toll the limitations period as to their master. Jackson v. Vanga, 85 Va. Cir. 266, 2012 Va. Cir. LEXIS 90 (Norfolk Aug. 24, 2012).

    § 8.01-245. Limitation on actions upon the bond of any fiduciaries or as to suits against fiduciaries themselves; accrual of cause of action where execution sustained.

    1. No action shall be brought upon the bond of any fiduciary except within ten years next after the right to bring such action shall have first accrued.
    2. When any fiduciary has settled an account under the provisions of Part A (§ 64.2-1200 et seq.) of Subtitle IV of Title 64.2, and whether or not he has given bond, a suit to surcharge or falsify such account, or to hold such fiduciary or his sureties liable for any balance stated in such account, to be in his hands, shall be brought within ten years after the account has been confirmed.
    3. In actions upon the bond of any personal representative of a decedent or fiduciary of a person under a disability against whom an execution has been obtained or where a court acting upon the account of such representative or committee shall order payment or delivery of estate in the hands of such committee and representative, the cause of action shall be deemed to accrue from the return day of such execution or from the time of the right to require payment or delivery upon such order, whichever shall happen first.

    History. Code 1950, §§ 8-13, 8-15, 8-16; 1964, c. 219; 1966, c. 118; 1972, c. 825; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-245 consolidates limitations applicable to fiduciaries into a single section.

    Subsection A preserves the former § 8-13 ten-year limitation period as to actions on fiduciary bonds under seal. Thus, while a seal no longer has impact on the limitations period, actions on fiduciary bonds will have a longer statute of limitations than contract actions. See § 8.01-246 (2) .

    Subsection B clarifies former § 8-16, without change in substance (like former § 8-16, the introductory proviso of § 8.01-246 makes it clear that contract limitations do not apply to fiduciaries).

    Subsection C simplifies former § 8-15. Thus, the cause of action against fiduciaries does not generally accrue until the disability is removed, but where an execution against the fiduciary has already been obtained, the cause of action accrues immediately upon failure to satisfy the execution or order.

    Cross references.

    As to limitation of action against trustee, see § 64.2-796 .

    Editor’s note.

    At the direction of the Virginia Code Commission, the reference to “Title 26” was changed to “Part A (§ 64.2-1200 et seq.) of Subtitle IV of Title 64.2” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

    Law Review.

    For article, “Civil Rights and ‘Personal Injuries’: Virginia’s Statute of Limitations for Section 1983 Suits,” see 26 Wm. & Mary L. Rev. 199 (1985).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assumpsit, § 33.

    CASE NOTES

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    This section is exclusive. —

    There is no other limitation applicable to the sureties upon the official bonds of executors or administrators, other than that provided by this section. Leake's Ex'r v. Leake, 75 Va. 792 , 1881 Va. LEXIS 57 (1881).

    When action on fiduciary bond accrues. —

    Action on a fiduciary’s bond is barred only after ten years from the accrual of the cause of action — that is, from the return day of execution against fiduciary, or from the time of the right to require payment or delivery from the fiduciary. Sharpe v. Rockwood, 78 Va. 24 , 1883 Va. LEXIS 5 (1883); Morrison v. Lavell, 81 Va. 519 , 1886 Va. LEXIS 120 (1886); Robertson v. Gillenwaters, 85 Va. 116 , 7 S.E. 371 , 1888 Va. LEXIS 17 (1888). But see McCormick v. Wright, 79 Va. 524 , 1884 Va. LEXIS 108 (1884).

    Bond of surety. —

    Where suit is brought, not on an open account, but on the surety’s bond, the ten-year limitation applies under this section. Fidelity & Cas. Co. v. Lackland, 175 Va. 178 , 8 S.E.2d 306, 1940 Va. LEXIS 160 (1940).

    Suit to surcharge or falsify account. —

    In the absence of fraud or mutual mistake, no suit to surcharge and falsify the account of a receiver, or to hold him or his sureties liable for any balance stated in his account to be in his hands, can be brought, except within ten years after the account had been confirmed, as required by the provisions of this section. Senseny v. Boyd, 114 Va. 308 , 76 S.E. 280 , 1912 Va. LEXIS 140 (1912).

    Subsection B does not apply to suit on guardian’s bond. —

    It was not the intention of the legislature that subsection B should override the clear language of subsection C. Subsection B has no application to suits by wards upon the bonds of guardians. Newsom v. Watkins, 168 Va. 370 , 191 S.E. 756 , 1937 Va. LEXIS 233 (1937).

    Subsection C prescribes a plain test for determining when the cause of action is to be deemed to have accrued in suits upon fiduciary bonds. Leake's Ex'r v. Leake, 75 Va. 792 , 1881 Va. LEXIS 57 (1881).

    Decree in favor of distributee. —

    The statute of limitations in favor of the sureties of fiduciaries did not begin to run in favor of the surety of an executor until a decree against the executor in favor of the distributees of the estate; and this though the surety was not a party to the suit in equity pursuant to which the decree against the executor was rendered. Franklin v. Depriest, 54 Va. (13 Gratt.) 257, 1856 Va. LEXIS 14 (1856).

    Bond for balance due on settlement of accounts. —

    Where an administrator had finally settled his accounts and given bond for the balance due, the statute began to run in favor of his surety on that bond from the time of its execution. Tilson v. Davis, 73 Va. (32 Gratt.) 92, 1879 Va. LEXIS 49 (1879).

    Defense of statute by one surety on joint obligation enures to benefit of all. —

    When the suit is on the joint obligation of all the sureties of an administrator, the defense of the statute by one of them, not being purely personal to him, enures to the benefit of all. Ashby v. Bell, 80 Va. 811 , 1885 Va. LEXIS 116 (1885).

    Effect of suspension of suit. —

    A suit was brought on an executor’s bond and decided in 1858, but, because there was no hand to receive the fund, was retained on docket till 1867, when it was dismissed with leave to reinstate it on motion of any person interested. The suit was reinstated in 1878, and a supplementary suit brought. It was held that the supplementary suit should be deemed a continuation of the original suit, quoad questions arising under the statute of limitations. Sharpe v. Rockwood, 78 Va. 24 , 1883 Va. LEXIS 5 (1883).

    CIRCUIT COURT OPINIONS

    When action on fiduciary bond accrues. —

    Executor’s plea in bar to the statute of limitations was time-barred by the 10-year statute of limitations because the co-trustee’s surcharge action on the executor’s bond, which was taken under advisement by the court, began to accrue upon the executor’s filing of the estate’s first accounting. Menefee v. Menefee, 94 Va. Cir. 448, 2016 Va. Cir. LEXIS 175 (Chesapeake Nov. 2, 2016).

    Claim not time-barred. —

    Heirs’ claim that the remainder of the deceased’s estate passed to them after the death of a beneficiary was not time-barred; since the claim was to determine the ownership of property, and not to state a claim against the estate, the statute of limitations did not apply. Baillio v. Donn, 54 Va. Cir. 279, 2000 Va. Cir. LEXIS 596 (Norfolk Dec. 21, 2000).

    § 8.01-246. Personal actions based on contracts.

    Subject to the provisions of § 8.01-243 regarding injuries to person and property and of § 8.01-245 regarding the application of limitations to fiduciaries, and their bonds, actions founded upon a contract, other than actions on a judgment or decree, shall be brought within the following number of years next after the cause of action shall have accrued:

    1. In actions or upon a recognizance, except recognizance of bail in a civil suit, within 10 years; and in actions or motions upon a recognizance of bail in a civil suit, within three years, omitting from the computation of such three years such time as the right to sue out such execution shall have been suspended by injunction, supersedeas or other process;
    2. In actions on any contract that is not otherwise specified and that is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not;
    3. In actions by a partner against another for settlement of the partnership account or in actions upon accounts concerning the trade of merchandise between merchant and merchant, their factors, or servants, within five years from the cessation of the dealings in which they are interested together;
    4. In actions upon (i) any contract that is not otherwise specified and that is in writing and not signed by the party to be charged, or by his agent, or (ii) any unwritten contract, express or implied, within three years.Provided that as to any action to which § 8.2-725 of the Uniform Commercial Code is applicable, that section shall be controlling except that in products liability actions for injury to person and for injury to property, other than the property subject to contract, the limitation prescribed in § 8.01-243 shall apply.

    History. Code 1950, §§ 8-13, 8-17, 8-23; 1964, c. 219; 1966, c. 118; 1977, c. 617; 2019, c. 241.

    REVISERS’ NOTE

    Section 8.01-246 consolidates the limitations of former §§ 8-13, 8-17, and 8-23.

    Subdivision 1 incorporates former § 8-17. The term “motion” has replaced “scire facias.” See § 8.01-24 . With respect to suspension by injunction, cf. § 8.01-229 C.

    Subdivision 2 applies a five-year limitation generally to written contracts regardless of whether such contracts be under seal. The elimination of the impact of the seal on the limitation period changes former § 8-13.

    Subdivision 3 incorporates provisions of former § 8-13 regarding partnership accounts and accounts between merchants.

    Subdivision 4 continues the former § 8-13 three-year limitation for unwritten contracts.

    The proviso relating to the application of § 8.2-725 , the UCC four-year limitation to contracts for the sale of goods, is the same as that contained in former § 8-13, except for the express stipulation that the UCC limitation, like other contract limitations, has no applicability to an action for injuries to person or to actions for injury to property which is not subject to the contract of sale. The distinctions contained in this proviso regarding the types of injury and the applicable statute of limitations in products liability actions, § 8.01-243 , are in accord with Virginia law. Compare Friedman v. Peoples’ Serv. Drug Stores, 208 Va. 700 , 160 S.E.2d 563 (1968) with Tyler v. R.R. Street & Co., 322 F. Supp. 541 (E.D. Va. 1971).

    The meaning of “award” in former § 8-13 is unclear and “award” has been deleted in § 8.01-246 .

    Cross references.

    As to effect of new promise on statute, see § 8.01-229 .

    For provision that statute not to apply to proceedings by State, see § 8.01-231 .

    As to effect of promise not to plead statute, see § 8.01-232 .

    As to limitation on enforcement of judgments, see § 8.01-251 .

    As to limitation of claims against the State, see §§ 8.01-195.7 , 8.01-255 .

    For statute of limitations applying to negotiable and non-negotiable notes, notwithstanding this section, see § 8.3A-118 .

    As to limitation on enforcement of mechanics’ lien, see § 43-17 .

    For sufficiency of allegation that action is barred by statute of limitations, where particular statute relied on is not specified, see Rule 3:18(d).

    The 2019 amendments.

    The 2019 amendment by c. 241 inserted “(i) any contract that is not otherwise specified and that is in writing and not signed by the party to be charged, or by his agent, or (ii)” in subdivision 4; and made stylistic changes.

    Law Review.

    For survey of the Virginia law on contracts and sales for the year 1967-1968, see 54 Va. L. Rev. 1572 (1968).

    For survey of Virginia law on torts for the year 1967-1968, see 54 Va. L. Rev. 1649 (1968).

    For survey of Virginia law on practice and pleading for the year 1973-1974, see 60 Va. L. Rev. 1572 (1974).

    For survey of Virginia law on practice and pleading for the year 1974-1975, see 61 Va. L. Rev. 1799 (1975).

    For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

    For article discussing statutes of limitation and repose in toxic substances litigation, see 16 U. Rich. L. Rev. 247 (1982).

    For article, “Products Liability and the Virginia Statute of Limitations — A Call for the Legislative Rescue Squad,” see 16 U. Rich. L. Rev. 323 (1982).

    For comment on statutes of limitations applicable in legal malpractice actions, see 16 U. Rich. L. Rev. 907 (1982).

    For article, “Civil Rights and ‘Personal Injuries’: Virginia’s Statute of Limitations for Section 1983 Suits,” see 26 Wm. & Mary L. Rev. 199 (1985).

    For note, “Virginia’s Acquisition of Unclaimed and Abandoned Personal Property,” see 27 Wm. & Mary L. Rev. 409 (1986).

    For 1987 survey of Virginia civil procedure and practice, see 21 U. Rich. L. Rev. 667 (1987).

    For survey on property law in Virginia for 1989, see 23 U. Rich. L. Rev. 773 (1989).

    For an article on federal product liability reform legislation’s consistency with Virginia law, see 4 Geo. Mason L. Rev. 279 (1996).

    For annual survey commentary, “Accrual of Causes of Action in Virginia,” see 41 U. Rich. L. Rev. 15 (2006).

    For review of judicial decisions of significance in Virginia affecting construction law, see 43 U. Rich. L. Rev. 107 (2008).

    For casenote and comment, “The Fourth Circuit Sinks Admiral Dur’s Boat and Virginia’s Economic Loss Rule Insulates a Negligent Subcontractor from Tort Liability,” see 16 Geo. Mason L. Rev. 747 (2009).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assumpsit, § 33.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Federal courts do not adopt state statutes of limitations in cases involving a federal question, particularly when there is a federal statute of limitations on point. United States v. E & C Coal Co., 647 F. Supp. 268, 1986 U.S. Dist. LEXIS 18966 (W.D. Va. 1986).

    To successfully prove a claim of equitable estoppel under Virginia law the party seeking to defeat a plea of the statute of limitations must prove that: (1) a material fact was falsely represented or concealed; (2) the representation or concealment was made with knowledge of the fact; (3) the party to whom the representation was made was ignorant of the truth of the matter; (4) the representation was made with the intention that the other party should act on it; (5) the other party was induced to act on it; and (6) the party claiming the estoppel was misled to his injury. Alessio v. Adkins, 102 Bankr. 485, 1989 Bankr. LEXIS 1132 (Bankr. E.D. Va. 1989).

    Only slightest injury required to start running of limitations period. —

    In Virginia, only the slightest injury is required to start the running of the limitations period. International Surplus Lines Ins. Co. v. Marsh & McLennan, Inc., 838 F.2d 124, 1988 U.S. App. LEXIS 1160 (4th Cir. 1988).

    Consent to search not a contract. —

    In action alleging, among other things, that officers to whom plaintiff gave consent to search of home breached agreement by bringing other officers along and searching for items not covered by the agreement, plaintiff could not claim the benefit of the five-year limitation on contract actions, as consent to a search is not a contract. Williams v. City of Portsmouth, 538 F. Supp. 74, 1982 U.S. Dist. LEXIS 12459 (E.D. Va.), aff'd, 692 F.2d 754 (4th Cir. 1982).

    Section held inapplicable. —

    In action under § 301 of the Labor Management Relations Act (29 U.S.C. § 185) to vacate an arbitration award, the most closely analogous statute of limitation under Virginia law was former § 8.01-579 (see now subdivision 5 of § 8.01-581.010 ), rather than this section or § 8.01-248 . Local Union 8181, UMW v. Westmoreland Coal Co., 649 F. Supp. 603, 1986 U.S. Dist. LEXIS 16893 (W.D. Va. 1986).

    This dispute did not involve a common law action founded upon an express or implied contract, but rather an employer’s duty to pay causally related medical benefits awarded to the claimant by the commission; thus the three year statute of limitations established by this section did not apply. Combustion Eng'g, Inc. v. Lafon, 22 Va. App. 235, 468 S.E.2d 698, 1996 Va. App. LEXIS 249 (1996).

    District court erred in applying Virginia’s five-year statute of limitations for breach of contract actions to bar a former husband’s objection to a bank’s proof of claim because the bank did not raise the claim before the bankruptcy court; even if the bank had raised the claim, the former husband’s objection was covered by the equitable doctrine of recoupment and would not be time-barred. Rusnack v. Cardinal Bank, N.A., 695 Fed. Appx. 704, 2017 U.S. App. LEXIS 13409 (4th Cir. 2017).

    Section is inapplicable to advance acquisitions. —

    In determining whether a successor corporation’s claim for reconveyance of land conveyed by advance acquisition to the Commonwealth of Virginia by a predecessor under § 33.1-90 [now § 33.2-1005 ] was timely, a trial court improperly relied upon § 8.01-248 , subdivision 4 of § 8.01-246 , and § 8.01-255.1 , applicable to actions for re-entry upon land for breach of conditions subsequent, was also inapplicable; these provisions were superseded by the more specific time limitations of § 33.1-90, which has a comprehensive and broad scope that in effect contains its own statute of limitations. Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 , 630 S.E.2d 514, 2006 Va. LEXIS 69 (2006).

    Limitation began to run when final decree entered in divorce case. —

    It was apparent from the allegations of the bill of complaint that the particular undertaking or transaction, which attorney was engaged to handle for client terminated on Dec. 30, 1980, then the divorce case was ended by the entry of a final decree incorporating the property settlement agreement. The limitation period then began to run and expired three years later. Thus, the chancellor correctly held that this suit, filed in Dec. 1984, was time-barred. MacLellan v. Throckmorton, 235 Va. 341 , 367 S.E.2d 720, 4 Va. Law Rep. 2524, 1988 Va. LEXIS 50 (1988).

    The transferee was unable to enforce a note where he did not bring his action within the five year limitation following the note’s maturity. Yeskolski v. Crosby, 253 Va. 148 , 480 S.E.2d 474, 1997 Va. LEXIS 7 (1997).

    Fraudulent concealment tolled the running of applicable statute of limitations. —

    In a diversity action where Virginia was the forum state, a gas lessor’s amended complaint pled sufficient facts to assert that the energy companies’ fraudulent concealment tolled the running of the applicable five-year statute of limitations under subdivision 2 of § 8.01-246 . Healy v. Chesapeake Appalachia, LLC, No. 1:10cv00023, 2011 U.S. Dist. LEXIS 759 (W.D. Va. Jan. 5, 2011).

    Action untimely even if tolled. —

    Domestic worker’s breach of contract claims were untimely; even assuming her claims were tolled until her escape from her employers, she did not allege that any action was taken to deter her from filing suit after her escape. Cruz v. Maypa, 773 F.3d 138, 2014 U.S. App. LEXIS 22560 (4th Cir. 2014).

    Bankruptcy claim barred. —

    Debtor’s objection to creditor’s unsecured claim was not barred by res judicata where she filed objection after confirmation of her Chapter 13 plan but creditor filed proof of claim before plan confirmation, as confirmation order established that plan met statutory requirements, but did not establish amount or validity of particular unsecured claims. Although confirmation order was final order, it only had preclusive effect on those issues actually litigated or determined, and once debtor filed her objection, based on Virginia statute of limitations, determination of amount and validity of claim was before court for first time. In re Haskins, 563 Bankr. 177, 2017 Bankr. LEXIS 234 (Bankr. W.D. Va. 2017).

    B.Proceedings to Which Section Applicable.
    1.Actions on Written Contracts.

    Uniform Commercial Code applies. —

    Virginia has a five-year period of limitations for written contracts generally, but if the action is for breach of a contract for the sale of goods, the shorter Uniform Commercial Code period set forth in § 8.2-725 applies by operation of § 8.01-246 . Bizmark, Inc. v. Indus. Gas & Supply Co., 358 F. Supp. 2d 518, 2005 U.S. Dist. LEXIS 3112 (W.D. Va. 2005), dismissed in part, No. 2:04cv00109, 2005 U.S. Dist. LEXIS 26707 (W.D. Va. Nov. 4, 2005).

    This section applies to a promissory note. Rivera v. Nedrich, 259 Va. 1 , 529 S.E.2d 310, 1999 Va. LEXIS 140 (1999).

    Cause of action on notes did not accrue until conditions in notes were satisfied. —

    Notes which incorporated various conditions which had to be satisfied before the debt evidenced by the notes became due and payable were not negotiable instruments and were simply contracts to pay money subject to certain conditions. As a result, the cause of action on the notes did not accrue and the statute did not begin to run until the conditions were fulfilled. Salomonsky v. Kelly, 232 Va. 261 , 349 S.E.2d 358, 3 Va. Law Rep. 997, 1986 Va. LEXIS 253 (1986).

    Action on account stated. —

    Because a cause of action based on an account stated between a debtor and a creditor arose when a corporate officer of the debtor signed the statement of account less than four years before proceedings were commenced on the creditor’s claim in the debtor’s bankruptcy, the creditor’s claim was not barred by the Virginia statute of limitations. Official Comm. of Unsecured Creditors v. Fairchild Dornier GmbH (In re Dornier Aviation (N. Am.) Inc.), No. 02-82003-SSM, No. 02-8199-SSM, 2005 Bankr. LEXIS 561 (Bankr. E.D. Va. Feb. 8, 2005), aff'd, 453 F.3d 225, 2006 U.S. App. LEXIS 16101 (4th Cir. 2006).

    No written signature. —

    While it is true that modern technology has in many cases obviated the handwritten signature on a physical document, there are still many other ways in which parties may establish a signed writing. This is contemplated in the opinion of the Attorney General addressing the statute; the Attorney General remarked that the signature requirement is met by the consumer’s electronic or physical signature on the credit card application, on purchase transaction slips and on the back of a credit card containing reference to the credit card agreement. In re Lewis, 517 Bankr. 615, 2014 Bankr. LEXIS 4118 (Bankr. E.D. Va. 2014).

    Breach of contract. —

    While a writing constituted a contract between the parties, because a surveyor expressly required that the writing be signed by an owner as a condition precedent to becoming a written contract and because the owner failed to sign it, there was no written contract; accordingly, the owner’s cause of breach of contract action was time-barred by the three-year statute of limitations in § 8.01-246 . Dixon v. Hassell & Folkes, P.C., 283 Va. 456 , 723 S.E.2d 383, 2012 Va. LEXIS 46 (2012).

    Debtors’ contract claims arose more than five years ago and were time-barred. Agnew v. United Leasing Corp., 680 Fed. Appx. 149, 2017 U.S. App. LEXIS 3140 (4th Cir. 2017).

    Actions for legal malpractice are governed by the limitations periods, thus, the trial court correctly applied the three-year limitation because the bill of complaint did not allege that the contract between attorney and client was in writing. MacLellan v. Throckmorton, 235 Va. 341 , 367 S.E.2d 720, 4 Va. Law Rep. 2524, 1988 Va. LEXIS 50 (1988).

    Either the three- or five-year breach of contract statute of limitations would apply based on a finding as to whether the alleged malpractice was governed by a written or oral contract. To the extent that attorney’s alleged wrongdoing stems from his actions as a director, the one-year statute will apply; to the extent the allegations stem from his service as savings and loan attorney, the applicable longer statutory period will apply. FDIC v. Cocke, 7 F.3d 396, 1993 U.S. App. LEXIS 26830 (4th Cir. 1993), cert. denied, 513 U.S. 807, 115 S. Ct. 53, 130 L. Ed. 2d 12, 1994 U.S. LEXIS 5412 (1994).

    In Virginia, the applicable statutes of limitations for legal malpractice suits are the statutes of limitations for breaches of contracts. Marley Mouldings, Inc. v. Suyat, 970 F. Supp. 496, 1997 U.S. Dist. LEXIS 11435 (W.D. Va. 1997).

    The running of the statute of limitations for legal malpractice begins when the attorney’s services in the matter in question have terminated. Marley Mouldings, Inc. v. Suyat, 970 F. Supp. 496, 1997 U.S. Dist. LEXIS 11435 (W.D. Va. 1997).

    Evidence did not show a complete and concluded agreement, required to bring malpractice action within the five year statute of limitations for breach of contract actions, but only an oral contract, triggering a three year limitation, which had run. Marley Mouldings, Inc. v. Suyat, 970 F. Supp. 496, 1997 U.S. Dist. LEXIS 11435 (W.D. Va. 1997).

    Regardless of when a debtor discovered the breach, the debtor’s November 17, 2005, malpractice action against the settlement attorney who allegedly failed to properly draft and record deeds to her property was barred by the statute of limitations because it was not filed within three years after the last service provided by the attorney, the recording of a defective “corrected” deed on February 11, 2002. Ranasinghe v. Compton, 341 Bankr. 556, 2006 Bankr. LEXIS 868 (Bankr. E.D. Va. 2006).

    Legal malpractice claims. —

    Debtors’ legal malpractice claim against their former attorneys, alleging that a federal income tax debt was not discharged under 11 U.S.C.S. § 523(a)(1)(A) because the attorneys filed the Chapter 7 petition too early, was property of the estate that had not been abandoned by the trustee and was not deemed abandoned under 11 U.S.C.S. § 554(c) because it was unscheduled, and the statute of limitations on the cause of action had arguably not passed under § 8.01-246 . Thus, the debtors’ motion to reopen their closed case pursuant to 11 U.S.C.S. § 350(b) in order to file an amended schedule of assets listing the legal malpractice claim was granted because there was at least a possibility, notwithstanding a dismissal with prejudice by the state court on the grounds that the debtors lacked standing, that the action could be maintained by a trustee. In re Brooks, No. 04-13685-SSM, 2010 Bankr. LEXIS 1473 (Bankr. E.D. Va. Apr. 27, 2010).

    Circuit court correctly held that the client’s legal injury arising out of the attorney’s alleged malpractice occurred in 1986, when the court entered a final decree of divorce, terminating the attorney’s employment in the matter in which he was engaged. The client’s right of action accrued on that date and the statute of limitations then began to run; as such, the action was untimely under § 8.01-246 . Van Dam v. Gay, 280 Va. 457 , 699 S.E.2d 480, 2010 Va. LEXIS 228 (2010).

    Continuous-representation rule. —

    In a legal malpractice action filed against two lawyers, the continuous-representation rule did not toll client’s claims against the first attorney, whose work on the particular undertaking at issue had ceased, more than three years before client filed this action, but the rule did toll the client’s malpractice claims against the second attorney. Moonlight Enters., LLC v. Mroz, 293 Va. 224 , 797 S.E.2d 536, 2017 Va. LEXIS 40 (2017).

    Professional malpractice claims. —

    Trustee’s malpractice claim was based entirely on defendants’ recommendation to purchase the investment; the trustee’s argument was that defendants recommended that the trustee invest a larger portion of the plan’s assets with the investment. Even assuming that the professional relationship between the parties was based in contract, the lengthier five-year limitations period provided under Virginia law still barred the claim; based on defendants’ recommendations, the trustee purchased the investment note on April 26, 1999, more than five years and eleven months before this action was filed on March 18, 2005, therefore, the state law professional malpractice claim was barred by the statute of limitations. Browning v. Tiger's Eye Benefits Consulting, Inc., 313 Fed. Appx. 656, 2009 U.S. App. LEXIS 3927 (4th Cir. 2009).

    Virginia Public Procurement Act cases. —

    In a case in which the underlying contracts for which the payment bonds were issued fell under the Virginia Public Procurement Act (VPPA), a paving company’s contention that the five-year limitations period under subdivision 2 of this section, which was applicable to written agreements, would apply rather than subsection C of § 2.2-4341, failed since under the VPPA, subsection C of § 2.2-4341 was specifically applicable to VPPA-derived actions. APAC-Atlantic, Inc. v. General Ins. Co., 273 Va. 682 , 643 S.E.2d 483, 2007 Va. LEXIS 49 (2007).

    Not applicable to negotiable and non-negotiable notes. —

    Given that § 8.3A-118 casts a broad net to encompass both negotiable and non-negotiable notes, the court believed it appropriate to apply the statute of limitations for notes to an obligation akin to a note although not titled as such, rather than applying § 8.01-246 . Hutchinson v. First Cmty. Bank (In re Hutchinson), No. 18-71619, No. 19-07036, 2020 Bankr. LEXIS 250 (Bankr. W.D. Va. Jan. 30, 2020).

    Action by accommodation maker of note against accommodated party. —

    An accommodation maker of a note was entitled to proceed against the accommodated party on the written instrument, and therefore the five-year limitation on written instruments under subdivision 2 was applicable rather than the three-year limitation under subdivision 4, where the maker made payment of the note to the holder, and the note was marked “paid” by the bank, since this endorsement did not have the effect of discharging the accommodated party’s obligation to the maker, and since, under § 49-27 , one secondarily liable on a note is substituted to the rights and remedies of the creditor. Payne v. Payne, 219 Va. 12 , 245 S.E.2d 133, 1978 Va. LEXIS 152 (1978).

    Accrual of cause of action on guaranty. —

    Under the terms of the guaranty agreement at issue, the guarantor was not required to pay until the primary obligor defaulted and the obligee demanded payment from the guarantor; thus, the five-year statute of limitations did not begin to run on the claim under the guaranty agreement when it began to run against the underlying obligation but, rather, when the primary obligor defaulted and a demand for payment was made to the guarantor. McDonald v. Nat'l Enters., 262 Va. 184 , 547 S.E.2d 204, 2001 Va. LEXIS 65 (2001).

    Action on note not barred. —

    If a note for purchase of his employer’s stock was treated as a written contract, a suit to collect on the note was not time-barred under the five-year limitations period of subdivision 2 of § 8.01-246 , even though by its language the note was due by a certain date or when the borrower was terminated because the plain language of a severance agreement stated that the note did not mature when the borrower was terminated and that the borrower was not released from his personal obligation to repay the note. Meijer v. Thompson, 655 F. Supp. 2d 607, 2009 U.S. Dist. LEXIS 81634 (E.D. Va. 2009).

    No writing found. —

    By establishing the date of the accrual of the cause of action and the absence of any writing signed by debtor, debtors carried their burden of proving the affirmative defense of the three-year statute of limitations for oral contracts; the credit card creditor did not succeed in establishing that the five-year statute of limitations for written contracts applied. In re Lewis, 517 Bankr. 615, 2014 Bankr. LEXIS 4118 (Bankr. E.D. Va. 2014).

    Action on guaranty of demand note. —

    Under Virginia law, the cause of action on a guaranty of demand note accrues at the same time as does the claim on the note. WAMCO, III, Ltd. v. First Piedmont Mtg. Corp., 856 F. Supp. 1076, 1994 U.S. Dist. LEXIS 8895 (E.D. Va. 1994), But see, Union Recovery Ltd. Partnership v. Horton, 252 Va. 418 , 477 S.E.2d 521, 1996 Va. LEXIS 103 (1996), cert. denied, 520 U.S. 1167, 117 S. Ct. 1430, 137 L. Ed. 2d 539, 1997 U.S. LEXIS 2254 (1997).

    Action on memorandum of understanding. —

    Buyer’s breach of contract suit against Freddie Mac and the Federal Housing Finance Agency arising out of a failed deal to purchase Freddie Mac’s low income housing tax credits, which Freddie Mac could not use, was barred by Virginia’s five-year statute of limitations, § 8.01-246(2) ; the Little Tucker Act’s six-year statute, 28 U.S.C.S. § 2401(a), did not apply because Freddie Mac was not federally controlled. Meridian Invs., Inc. v. Fed. Home Loan Mortg. Corp., 855 F.3d 573, 2017 U.S. App. LEXIS 7562 (4th Cir. 2017).

    Subcontracts. —

    Circuit court did not err in finding that a government contractor’s action against its subcontractors was time-barred because subcontracts did not state an intent to create an obligation on the part of the subcontractor to indemnify the contractor, and thus, the right of action accrued upon breach of the performance provisions of the contract. Hensel Phelps Constr. Co. v. Thompson Masonry Contr., Inc., 292 Va. 695 , 791 S.E.2d 734, 2016 Va. LEXIS 166 (2016).

    Appropriate limitations period for insurance contracts. —

    Section 38.2-314, not § 8.01-246(2) , dictates the appropriate limitations period for insurance contracts. Section 38.2-314 sets the minimum limitations period allowed in Virginia for filing suit on an insurance contract at one year. Mirabile v. Life Ins. Co. of N. Am., 293 Fed. Appx. 213, 2008 U.S. App. LEXIS 18079 (4th Cir. 2008).

    Life insurance. —

    With respect to life insurance policies, when a policy requires a demand for payment and proof of death, the statute of limitations begins to run on the date of the demand and proof. Arrington v. Peoples Sec. Life Ins. Co., 250 Va. 52 , 458 S.E.2d 289, 1995 Va. LEXIS 76 (1995).

    Action on a policy of insurance. —

    Two-year limitation period in a policy of insurance was an affirmative defense that was waived under Fed. R. Civ. P. 81(c), by defendant insurer’s failure to raise it as an affirmative defense when plaintiff insured’s state court action was removed to federal court, thus, while the district court was correct in granting the insured’s motion for summary judgment, the district court incorrectly applied §§ 8.01-235 , 8.01-243 and 8.01-246 , which had no application, because in Virginia contractual and statutory limitations were not the same, and the federal rules applied in the removed action. S. Wallace Edwards & Sons, Inc. v. Cincinnati Ins. Co., 353 F.3d 367, 2003 U.S. App. LEXIS 26267 (4th Cir. 2003).

    Subrogation claim. —

    Because a claim asserted under § 502 of the Employee Retirement Income Security Act of 1974, 29 U.S.C.S. § 1001 et seq., was analogous to a contract claim, and was thus governed by the limitations period applicable to contract actions in the forum state, plaintiff’s subrogation claim was governed by the five-year period as set forth in subdivision 2 of § 8.01-246 and was not time-barred. Lincoln Gen. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 425 F. Supp. 2d 738, 2006 U.S. Dist. LEXIS 16918 (E.D. Va. 2006).

    Design-defect claim. —

    Coal preparation facility operator’s breach of contract and warranty claims against an engineer design firm were time-barred where the parties’ contract provided for only one phase, i.e., the design of a coal slurry impoundment structure, the operator’s payment under the contract constituted approval and acceptance of the design plans, the payment triggered the limitations period for related design-defect claims, and the complaint was filed more than five years after the operator’s payment. Lone Mt. Processing, Inc. v. Bowser-Morner, Inc., 94 Fed. Appx. 149, 2004 U.S. App. LEXIS 6806 (4th Cir. 2004).

    Five-year statute of limitations on an owner’s claim against an engineering subcontractor for defective plans, § 8.01-246 , began to run on the date the final plans were approved by the county, fulfilling the engineer’s contractual obligations regarding the plans. William H. Gordon Assocs. v. Heritage Fellowship, 291 Va. 122 , 784 S.E.2d 265, 2016 Va. LEXIS 11 (2016).

    Accrual of cause of action for fee increases. —

    Physical therapy association’s action alleging that three fee increases by a federation that administered a licensure examination breached a contract was not time-barred by subdivision 2 of § 8.01-246 , although the first increase took effect more than five years before the association’s action was filed; a new obligation to impose fees that complied with the contract, and therefore a new cause of action, arose each time a new fee was imposed. Am. Physical Therapy Ass'n v. Fed'n of State Bds. of Physical Therapy, 271 Va. 481 , 628 S.E.2d 928, 2006 Va. LEXIS 36 (2006).

    Where plaintiffs filed ordinary bill of complaint instituting suit in equity upon written contracts, seeking alternative relief in the form of rescission on the ground of substantial failure of consideration or damages for breach of contract, a substantial failure of consideration is a well recognized ground for rescission of a contract. For this type of proceeding, the statute of limitations in Virginia is five years. Marriott v. Harris, 235 Va. 199 , 368 S.E.2d 225, 4 Va. Law Rep. 2357, 1988 Va. LEXIS 67 (1988).

    Action arising from sale of home by real estate broker and agent. —

    District court denied a real estate agent and real estate broker’s motion to dismiss a former property owner’s claims alleging that the agent and broker committed fraud, negligence, and breach of contract when the agent and broker sold the owner’s house in 2003 because additional discovery was required to determine if the claims were time-barred under §§ 8.01-230 , 8.01-243 , 8.01-248 , and 8.01-249 . The court found that the owner’s claim alleging that the agent was negligent was a claim alleging professional malpractice that was subject to the five-year statute of limitations that was imposed by § 8.01-246(2) . Rossmann v. Lazarus, No. 1:08cv316, 2008 U.S. Dist. LEXIS 68408 (E.D. Va. Sept. 3, 2008).

    Action on mortgage loan agreement barred. —

    Borrower’s breach of contract claims against a bank, whether viewed as a right of action or a cause of action, accrued when the debt on a mortgage loan agreement was accelerated prior to foreclosure. Because the borrower did not file suit within five years of this date of accrual, the statute of limitations barred the borrower’s claims. Kerns v. Wells Fargo Bank, N.A., 296 Va. 146 , 818 S.E.2d 779, 2018 Va. LEXIS 120 (2018).

    Contribution claim time-barred. —

    In a case in which plaintiff asked the court for leave to amend the complaint to add a common-law contribution claim, although plaintiff likely could allege that he paid more than his proportionate share of the debts of the parties’ company to the bank, an amended contribution claim for the same disputed payments would be futile as the claim was time-barred under the three-year statute of limitations because plaintiff most recently submitted payment to the bank in May 2013; plaintiff’s contribution claim ran in May 2016; and plaintiff did not file suit until November 2016 and did not seek to bring a contribution claim until October 2017. Basham v. Jenks, No. 7:17-cv-00202, 2018 U.S. Dist. LEXIS 79763 (W.D. Va. May 10, 2018).

    Statute of limitations defense rejected. —

    In a breach of contract suit regarding the applicable rate adjustment for a railroad’s delivery of coal to a certain utility facility, the utility’s statute of limitations defense under subdivision 2 of § 8.01-246 was properly rejected because the alleged breach occurred when the railroad announced that it intended to apply the new rate adjustment commencing with certain shipments, and the suit was filed less than five years after this date. Va. Elec. & Power Co. v. Norfolk S. Ry. Co., 278 Va. 444 , 683 S.E.2d 517, 2009 Va. LEXIS 83 (2009).

    Statute of limitations not waived. —

    Circuit court did not err in finding that a government contractor’s action was time-barred because no subcontract provision demonstrated sufficient intent to incorporate a waiver of the statute of limitations; even if the prime contract was imposed on the subcontractors, they would not be bound by a statutory waiver of the statute of limitations not incorporated into the subcontracts because § 8.01-231 provided no limitations period could be applicable against the Commonwealth. Hensel Phelps Constr. Co. v. Thompson Masonry Contr., Inc., 292 Va. 695 , 791 S.E.2d 734, 2016 Va. LEXIS 166 (2016).

    2.Other Contracts Express or Implied.

    Limitation period for breach of contract inapplicable to tort action. —

    Plaintiff cannot rely on the three-year limitation period for breach of contract both as a matter of fact, as well as Virginia law, where its damage award depends on a characterization of defendant’s action as tortious. LaVay Corp. v. Dominion Fed. Sav. & Loan Ass'n, 830 F.2d 522, 1987 U.S. App. LEXIS 13005 (4th Cir. 1987), cert. denied, 484 U.S. 1065, 108 S. Ct. 1027, 98 L. Ed. 2d 991, 1988 U.S. LEXIS 778 (1988).

    Action for breach of warranty against supplier not in privity. —

    In an action for breach of warranty brought by a buyer against the supplier of a component part of the article at issue, the supplier was subject to a three-year statute of limitations for actions founded upon unwritten contracts since it was not privy to the contract of sale between the buyer and a construction equipment retailer. W.J. Rapp Co. v. Whitlock Equip. Corp., 222 Va. 80 , 279 S.E.2d 133, 1981 Va. LEXIS 278 (1981).

    Wrongful discharge under conscience clause. —

    Where plaintiffs questioned whether Virginia’s Conscience Clause (§ 18.2-75 ) imbued their claims with sufficient implied contractual obligations to warrant application of this section’s three-year contract limitation period to a wrongful discharge claim based on the Conscience Clause, the court recently rejected a similar argument, holding that wrongful discharge claims fall under Virginia’s catchall statute of limitations, § 8.01-248 . Michael v. Sentara Health Sys., 939 F. Supp. 1220, 1996 U.S. Dist. LEXIS 14876 (E.D. Va. 1996).

    Action for reinstatement as an employee. —

    In an action for reinstatement as an employee, the relevant statute of limitations is subdivision 4. After an employee’s discharge, all of the wrongs alleged relate solely to that event and the employer’s refusal to change its decision. Thus the continuing violation doctrine does not apply. Otherwise, the employee could keep his claim of wrongful discharge forever alive by requesting once every three years that the employer reinstate him. This, of course, would destroy the policies of finality and repose underlying the statute of limitations. West v. ITT Continental Baking Co., 683 F.2d 845, 1982 U.S. App. LEXIS 17449 (4th Cir. 1982).

    Noncompete contract. —

    Breach of contract claim, which alleged a breach of a former employee’s agreement not to work for an entity similar to a government relations and analysis firm within the one year following termination, was time-barred under subdivision 2 of § 8.01-246 because: (1) the claim began to accrue in July 2003, when, according to the complaint, the employee began working for a competitor; (2) the firm did not sue the employee within five years of July 2003; and (3) the employee’s noncompete contract could not have been considered indivisible because the employee pointed to specific language in the contract to show that the contract was not indivisible, and the employee’s contract was a contract not to do certain things. State Analysis, Inc. v. Am. Fin. Servs. Assoc., 621 F. Supp. 2d 309, 2009 U.S. Dist. LEXIS 27548 (E.D. Va. 2009).

    An action to enforce an unwritten contract, express or implied, is barred by the statute of limitations if such action is not brought within three years after the cause of action accrues. Brown v. Harms, 251 Va. 301 , 467 S.E.2d 805, 1996 Va. LEXIS 47 (1996).

    Choice of law. —

    Subcontractor’s claims were untimely even though the contract contained a provision choosing Alabama law to govern contract disputes, but choice of law provision did not extend to procedural questions and Virginia’s three-year statute of limitations governing contracts implied in law, applied. RMS Tech., Inc. v. TDY Indus., 64 Fed. Appx. 853, 2003 U.S. App. LEXIS 2061 (4th Cir.), cert. denied, 540 U.S. 814, 124 S. Ct. 64, 157 L. Ed. 2d 29, 2003 U.S. LEXIS 5542 (2003).

    By operation of West Virginia’s borrowing statute, Virginia’s shorter statute of limitations applied to and barred a third-party beneficiary claim premised on a Virginia insurance agent’s alleged failure to add the contractor as an additional insured on a subcontractor’s policy; certificates of insurance issued by the agent did not represent a written contract, but even if the five-year limitations period applied, the claim accrued more than five years before suit was filed. Mulvey Constr., Inc. v. Bituminous Cas. Corp., 571 Fed. Appx. 150, 2014 U.S. App. LEXIS 8587 (4th Cir. 2014).

    Loans paid by check pursuant to oral contract. —

    In a dispute concerning the statute of limitations against a creditor, the three-year statute of limitations for oral contracts set forth in this section applied because the sums paid by the creditor were demand loans made by checks premised on an oral contract; the right of action on such contracts accrued and the statute of limitations commenced to run on the date of the checks without any formal demand. Investor Assocs. v. Copeland, 262 Va. 244 , 546 S.E.2d 431, 2001 Va. LEXIS 73 (2001).

    Inverse condemnation action is an action based on an implied contract. It follows that application of the period of limitations contained in subdivision 4 is proper. Prendergast v. Northern Va. Regional Park Auth., 227 Va. 190 , 313 S.E.2d 399, 1984 Va. LEXIS 281 (1984).

    Unjust enrichment claim. —

    Competitor’s Fed. R. Civ. P. 12(b)(6) motion to dismiss an aeronautical engineering company’s unjust enrichment claim was granted where the claim had not been filed within three years of the competitor’s filing of a proposal with a federal agency or the award of the government contract and as a result, the action was barred under subdivision 4 of § 8.01-246 . Tao of Sys. Integration v. Analytical Servs. & Materials, Inc., 299 F. Supp. 2d 565, 2004 U.S. Dist. LEXIS 313 (E.D. Va. 2004).

    Where plaintiff partner successfully sued defendant partner for unjust enrichment, he was awarded damages plus interest pursuant to §§ 6.1-330.53 [now § 6.2-301 ] and 8.01-382 , consisting of his initial and subsequent investments, but not profits that defendant enjoyed from those payments as plaintiff was not entitled to a disgorgement of the profits, nor was it inequitable for defendant to retain them. The initial investment was not barred by the three-year statute of limitations that was applicable to oral contracts under subdivision 4 of § 8.01-246 because, given that there was no agreed upon repayment date of an alleged obligation to pay money, it was deemed payable on demand; thus, the statute of limitations accrued from the time that the money was transferred from plaintiff to defendant, and, as the unjust enrichment did not occur until one year before filing, any timeliness issues were dismissed. Clarke v. Newell, No. 1:05cv1013, 2006 U.S. Dist. LEXIS 74251 (E.D. Va. Oct. 12, 2006).

    In an action in which a patentee alleged that a computer manufacturer was unjustly enriched by the misappropriation and use of the patentee’s intellectual property and know-how, the unjust enrichment claim was time-barred under the three-year limitations period of subdivision 4 of § 8.01-246 because: (1) any misappropriation occurred when the computer manufacturer began using the patentee’s intellectual property and know-how without paying the patentee; (2) negotiations between the patentee and the manufacturer did not extend the accrual date; and (3) allegations that the patentee had a reasonable hope for a non-litigious ending to its negotiations with the manufacturer did not support the application of equitable estoppel. GIV, LLC v. IBM, No. 3:07CV067-HEH, 2007 U.S. Dist. LEXIS 30168 (E.D. Va. Apr. 24, 2007).

    Covenant of good faith and fair dealing. —

    Under Virginia law, the three-year statute of limitations, under § 8.01-246(4) , applied to a corporation’s claims for breach of the covenant of good faith and fair dealing because it was an unwritten term of the contract because the covenant of good faith and fair dealing was applicable to all contracts under Massachusetts law. Corinthian Mortg. Corp v. ChoicePoint Precision Mktg., LLC, No. 1:07cv832, 2008 U.S. Dist. LEXIS 53573 (E.D. Va. July 14, 2008).

    ERISA claims. —

    Where an employee filed formal ERISA claims with the plan administrator and the claims were formally denied within five years of the suit, the action was not time-barred under the five-year statute of limitations for Virginia-based ERISA claims. Karras v. First Colony Life Ins. Co. Pension Plan, No. 6:03cv00005, 2005 U.S. Dist. LEXIS 17441 (W.D. Va. Feb. 15, 2005).

    Limitations period not contrary to public policy. —

    Claimant’s challenge under the Employee Retirement Income Security Act, 29 U.S.C.S. §§ 1001-1461, to a termination of disability benefits was untimely under the plan’s three-year limitations period; the three-year period was not contrary to Virginia public policy, given that § 38.2-314 allowed insurance policies to include a one-year limitations period. Belrose v. Hartford Life & Accident Ins. Co., 478 Fed. Appx. 21, 2012 U.S. App. LEXIS 7506 (4th Cir. 2012).

    Claimant’s challenge under the Employee Retirement Income Security Act, 29 U.S.C.S. §§ 1001-1461, to a termination of disability benefits was untimely under the plan’s three-year limitations period; notwithstanding the plan’s terms of accrual, the limitations period did not begin to run until a formal denial of benefits was issued, so it was not unreasonable to apply the plan’s limitations period rather than Virginia’s five-year statute of limitations for breach of contract actions. Belrose v. Hartford Life & Accident Ins. Co., 478 Fed. Appx. 21, 2012 U.S. App. LEXIS 7506 (4th Cir. 2012).

    Attorney and client. —

    Where there existed a continuation of services in the relationship between attorney and client, the statute did not begin to run from the time plaintiffs had the right to demand payment, although the attorney had a right to require payment for services prior to the termination of their relationship. Wood v. Carwile, 231 Va. 320 , 343 S.E.2d 346, 1986 Va. LEXIS 196 (1986).

    Claims by a former patient against professional counselor. —

    Former patient’s injury to property and continuing malpractice claims against a professional counselor, based upon the counselor’s actions during joint therapy sessions involving the patient four years prior to the patient’s complaint, were time-barred because if the patient’s injury to property and continuing malpractice claims were classified as for personal injury or for medical malpractice, his claims were barred by the two year limitations period under subsection A of § 8.01-243 , and, if the patient’s claims were classified as for breach of oral contract, his claims were barred by the three-year limitations period under subdivision 4 of § 8.01-246 . Ranney v. Nelson, 176 Fed. Appx. 405, 2006 U.S. App. LEXIS 9812 (4th Cir. 2006).

    Right of action for contribution arises upon discharge of common obligation. —

    Before contribution will lie it is essential that a cause of action by the person injured have existed against the third-party defendant. But if such cause of action existed, the right of action to recover contribution arises upon discharge of the common obligation and the statute of limitations begins to run at that time. In order for contribution to lie, the injured party’s cause of action against the third-party defendant need not be presently enforceable; it merely is necessary that the plaintiff, at some time in the past, have had an enforceable cause of action against the party from whom contribution is sought. Gemco-Ware, Inc. v. Rongene Mold & Plastics Corp., 234 Va. 54 , 360 S.E.2d 342, 4 Va. Law Rep. 431, 1987 Va. LEXIS 245 (1987).

    Oral contract for transfer of stock. —

    Cause of action on oral contract for transfer of stock accrued, and the statute of limitations began to run, on January 1, 1983, the date on which payment was due, and not on August 1, 1979, when the stock was transferred. Andrews v. Sams, 233 Va. 55 , 353 S.E.2d 735, 3 Va. Law Rep. 1900, 1987 Va. LEXIS 169 (1987).

    Trial court properly dismissed a property owner’s declaratory judgment action based on inverse condemnation due to the expiration of the three-year statute of limitations period; the five-year statute of limitations contained in § 8.01-243 did not apply to inverse condemnation actions as the act giving rise to the claim was the City’s limitation of the owner’s ability to exercise his property rights without paying the owner for that limitation, which was a breach of the City’s implied contract to pay just compensation under Va. Const., Art. I, § 11. Richmeade, L.P. v. City of Richmond, 267 Va. 598 , 594 S.E.2d 606, 2004 Va. LEXIS 55 (2004).

    Breach of implied and express contracts. —

    Breach of implied and express contracts counts were barred by the three-year statute of limitations set forth in § 8.01-246 as the suit was filed after the statute of limitations expired. Peerless Ins. Co. v. County of Fairfax, 274 Va. 236 , 645 S.E.2d 478, 2007 Va. LEXIS 78 (2007).

    C.Products Liability.

    Claim based on defective appliance arising prior to October 1, 1977, held governed by § 8.2-725 . —

    Where plaintiffs’ home was damaged by fire on July 20, 1977, allegedly due to a defect in a portable refrigerator delivered to their residence on February 8, 1975, the limitation period for the warranty claims was four years and the time began to run from February 8, 1975, when the refrigerator was delivered, pursuant to § 8.2-725 . Plaintiff’s contention that their causes of action for breach of warranty accrued on July 20, 1977, when the fire occurred and that the limitation period was five years was misplaced, since this section was not effective until October 1, 1977. Stone v. Ethan Allen, Inc., 232 Va. 365 , 350 S.E.2d 629, 3 Va. Law Rep. 1342, 1986 Va. LEXIS 266 (1986).

    D.Partnerships and Joint Ventures.

    Period of limitations for joint venturer’s right of action inter se. —

    Because the rules of law governing partnerships generally apply to joint ventures, the statute of limitations applicable to joint venturer’s rights of action inter se is the five-year period prescribed by subdivision 3, governing actions between partners, rather than the limitation governing actions on contracts. Roark v. Hicks, 234 Va. 470 , 362 S.E.2d 711, 4 Va. Law Rep. 1318, 1987 Va. LEXIS 277 (1987).

    Like partners, joint venturers have a fiduciary relationship among themselves which begins with the opening of the negotiations for the formation of the syndicate, applies to every phase of the business which is undertaken, and continues until the enterprise has been completely wound up and terminated. For that reason, the statute of limitations does not begin to run on joint venturers’ claims inter se at the time of dissolution. Rather, it begins to run at the completion of winding up the affairs of the dissolved enterprise. Roark v. Hicks, 234 Va. 470 , 362 S.E.2d 711, 4 Va. Law Rep. 1318, 1987 Va. LEXIS 277 (1987).

    When claim accrues. —

    In accordance with § 8.01-246 , the three-year statute of limitations cannot begin to run as to the testamentary beneficiary until a cause of action accrues, after the death of the testator. Thus § 8.01-246 can, under the proper circumstances in which no injury is sustained, provide one of the referenced statutory exceptions to the rule set forth in § 8.01-230 that contractual rights of action accrue at breach. Thorsen v. Richmond SPCA, 292 Va. 257 , 786 S.E.2d 453, 2016 Va. LEXIS 68 (2016) (but see § 64.2-520.1 and notes thereunder).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    A statute of limitations is a statute of repose. Templeman v. Pugh, 102 Va. 441 , 46 S.E. 474 , 1904 Va. LEXIS 88 (1904); Virginia Hot Springs Co. v. McCray, 106 Va. 461 , 56 S.E. 216 , 1907 Va. LEXIS 107 (1907).

    To compel exercise of right of action. —

    Statutes of limitation are statutes of repose, the object of which is to compel the exercise of a right of action within a reasonable time. They are designed to suppress fraudulent and stale claims from being asserted after a great lapse of time, to the surprise of the parties, when the evidence may have been lost, the facts may have become obscure because of defective memory, or the witnesses have died or disappeared. Richmond Redevelopment & Hous. Auth. v. Laburnum Constr. Corp., 195 Va. 827 , 80 S.E.2d 574, 1954 Va. LEXIS 162 (1954).

    Object of an action, and not its form, determines what act of limitation is applicable. Birmingham v. C & O Ry., 98 Va. 548 , 37 S.E. 17 , 1900 Va. LEXIS 76 (1900).

    Section is available only as a defense and never as a cause of action. Weems v. Carter, 30 F.2d 202, 1929 U.S. App. LEXIS 2357 (4th Cir. 1929).

    It is to be distinguished from rule presuming payment. —

    There is a recognized distinction between the statute of limitations and the presumption of payment from lapse of time, the condition of the parties, and their relation towards each other. In the former case the bar is absolute; in the latter it is a rule of evidence, and may be rebutted. Coles v. Ballard, 78 Va. 139 , 1883 Va. LEXIS 21 (1883); Clendenning v. Thompson, 91 Va. 518 , 22 S.E. 233 , 1895 Va. LEXIS 47 (1895).

    A limitation fixed by statute is arbitrary and peremptory, admitting of no excuse or delay beyond the period fixed, unless such excuse be recognized by the statute itself. The legislature has full power to make any exception it chooses, or to refuse to make any at all. If the statute makes exceptions, they exist; if not, they do not exist, as there is no limitation of actions at common law. Quackenbush v. Isley, 154 Va. 407 , 153 S.E. 818 , 1930 Va. LEXIS 223 (1930).

    And the legislature may alter limitation on existing contract. —

    It is within the power of the legislature to shorten the period of limitation on an existing contract, leaving always a reasonable time within which to invoke a remedy for its breach, or to prolong the period of limitation where the right to plead the statute has not accrued. Smith v. Northern Neck Mut. Fire Ass'n, 112 Va. 192 , 70 S.E. 482 , 1911 Va. LEXIS 70 (1911).

    Statute applied in equity. —

    In cases concerning claims of an equitable nature, equity acts by analogy; that is, it applies the same bar to such claims that would be applied at law, under the statute, to legal claims of analogous character. Smith v. Thompson, 48 Va. (7 Gratt.) 112, 1850 Va. LEXIS 23 (1850); Harshberger v. Alger, 72 Va. (31 Gratt.) 52, 1878 Va. LEXIS 27 (1878); De Baun v. De Baun, 119 Va. 85 , 89 S.E. 239 , 1916 Va. LEXIS 78 (1916).

    Courts of equity follow the law as respects the statute of limitations. If a legal claim, barred at law, is asserted in equity, it is equally barred there. Rowe v. Bentley, 70 Va. (29 Gratt.) 756, 1878 Va. LEXIS 12 (1878); Harshberger v. Alger, 72 Va. (31 Gratt.) 52, 1878 Va. LEXIS 27 (1878); Bank of Old Dominion v. Allen, 76 Va. 200 , 1882 Va. LEXIS 19 (1882); Coles v. Ballard, 78 Va. 139 , 1883 Va. LEXIS 21 (1883); Hutchison v. Grubbs, 80 Va. 251 , 1885 Va. LEXIS 62 (1885); Ayre v. Burke, 82 Va. 338 , 4 S.E. 618 , 1886 Va. LEXIS 39 (1886); Switzer v. Noffsinger, 82 Va. 518 , 1886 Va. LEXIS 66 (1886); McCarty v. Ball, 82 Va. 872 , 1 S.E. 189 , 1887 Va. LEXIS 157 (1887); Cottrell v. Watkins, 89 Va. 801 , 17 S.E. 328 , 1893 Va. LEXIS 107 (1893); Redford v. Clarke, 100 Va. 115 , 40 S.E. 630 , 1902 Va. LEXIS 5 (1902).

    This section applies only to personal actions. Harper v. Harper, 159 Va. 210 , 165 S.E. 490 , 1932 Va. LEXIS 183 (1932).

    And to actions on contracts only. —

    This section applies only to suits arising upon contracts, and does not apply to an action against bank directors for misconduct and neglect of duties. Winston v. Gordon, 115 Va. 899 , 80 S.E. 756 , 1914 Va. LEXIS 146 (1914).

    But the language used in the classifications of contracts is all-inclusive and no obligation based on a contract, whether written, verbal or implied, is omitted. Hospelhorn v. Corbin, 179 Va. 348 , 19 S.E.2d 72, 1942 Va. LEXIS 228 (1942).

    Section 8.01-243 applies to every action for personal injuries whether based on tort or contract. —

    Section 8.01-243 , and thus the two-year limitation, does not apply only to tort actions, but to every action for personal injuries, whether it is based upon tort or contract. Therefore, the wrong alleged, not the form of the action, is what counts in the measurement and application of the appropriate limitation. Tyler v. R.R. St. & Co., 322 F. Supp. 541, 1971 U.S. Dist. LEXIS 14571 (E.D. Va. 1971) (commented on in 6 U. Rich. L. Rev. 167 (1971)).

    Since both this section and § 8.2-725 refer to actions in contract, it is not difficult to draw an analogy between § 8.01-243 as opposed to this section, and § 8.01-243 as opposed to § 8.2-725 . It would appear that the Virginia courts would hold that § 8.01-243 applies in all cases in which a personal injury is involved, regardless of whether § 8.2-725 or this section is in issue, and the federal district court so holds. Tyler v. R.R. St. & Co., 322 F. Supp. 541, 1971 U.S. Dist. LEXIS 14571 (E.D. Va. 1971) (commented on in 6 U. Rich. L. Rev. 167 (1971)).

    Section 8.01-243 applies in an action for personal injuries grounded upon breach of implied warranty. Friedman v. Peoples Serv. Drug Stores, 208 Va. 700 , 160 S.E.2d 563, 1968 Va. LEXIS 170 (1968).

    Since an action to recover damages for personal injuries based on a breach of warranty is essentially an action for personal injuries, the limitation thereon is governed by § 8.01-243 , and not by this section applicable to an action based on contract. Caudill v. Wise Rambler, Inc., 210 Va. 11 , 168 S.E.2d 257, 1969 Va. LEXIS 188 (1969).

    Debt is not cancelled though action is barred. —

    The provision is that no action “shall be brought” after a designated date. The debt is not cancelled, and there is no presumption of payment. It remains as an abiding moral obligation. Wilson v. Butt, 168 Va. 259 , 190 S.E. 260 , 1937 Va. LEXIS 221 (1937).

    Conflict of laws. —

    The statute of limitations of Virginia was held applicable in a suit brought in Virginia on a contract made in Kentucky. Bank of United States v. Donnally, 33 U.S. 361, 8 L. Ed. 974, 1834 U.S. LEXIS 595 (1834).

    This section applies in an action brought in a federal court in the State. Weems v. Carter, 30 F.2d 202, 1929 U.S. App. LEXIS 2357 (4th Cir. 1929).

    An action for negligence of an architect in performing professional services, while sounding in tort, is an action for breach of contract and is thus governed by statute of limitations applicable to contract. Comptroller ex rel. VMI v. King, 217 Va. 751 , 232 S.E.2d 895, 1977 Va. LEXIS 233 (1977).

    Action for breach by depository of terms of escrow arrangement. —

    Where, in a suit to recover a sum which the plaintiffs allegedly lost as a result of the defendant attorney’s breach of duty in closing a real estate transaction, allegations of the complaint clearly set forth the existence of an escrow arrangement involving the plaintiffs as grantors, defendants as compensated depositories, and a certain company as grantee, in an escrow arrangement, the parties occupy a principal-agent relationship, a relationship which is essentially contractual in nature, and since a breach by a depository of the terms of an escrow arrangement gives rise to a cause of action contractual in nature, the plaintiff’s case was governed by the three-year period of limitation applicable to causes of action for contracts not in writing, contained in this section, rather than the one-year limitation for personal causes of action provided by § 8.01-248 . Winslow, Inc. v. Scaife, 219 Va. 997 , 254 S.E.2d 58, 1979 Va. LEXIS 199 (1979).

    B.Proceedings to Which Section Applicable.
    1.Actions on Written Contracts.

    Notes not under seal. —

    An action on a promissory note not under seal is barred in five years. Watson v. Hurt, 47 Va. (6 Gratt.) 633, 1850 Va. LEXIS 14 (1850); Johnson v. Anderson, 76 Va. 766 , 1882 Va. LEXIS 78 (1882).

    The statutory limitation ordinarily applying to a negotiable note or an instrument not under seal is five years. Quackenbush v. Isley, 154 Va. 407 , 153 S.E. 818 , 1930 Va. LEXIS 223 (1930).

    Statement of indebtedness may constitute “contract in writing”. —

    Where a husband sold personal property jointly owned by himself and his wife, and took a note payable to himself, and then rendered his wife a statement in writing over his signature, showing that her share of the sale amounted to a sum stated, “which is due you out of R’s note when collected,” the statement constituted “a contract in writing, signed by the party to be charged thereby” within the contemplation of this section, and the period of limitation was five years. Lurty v. Lurty, 107 Va. 466 , 59 S.E. 405 , 1907 Va. LEXIS 64 (1907).

    Claim against prior indorser of negotiable note. —

    The claim of an indorser of a negotiable note to be reimbursed by a prior indorser for the payment of the note was not founded upon any implied promise or contract of the prior indorser growing out of the relations of the parties, but arose by virtue of former § 6-420 and was founded upon the note itself and the indorsement of the prior indorser; therefore the period of limitation was five years, and not three years, after the right of action first accrued. Mann v. Bradshaw, 136 Va. 351 , 118 S.E. 326 , 1923 Va. LEXIS 90 (1923).

    Agreement concerning alimony. —

    An action to recover money in lieu of alimony, based on writings and stipulations made by the parties during the pendency of an action for divorce, is barred by the five-year limitation. Newman v. McComb, 112 Va. 408 , 71 S.E. 624 , 1911 Va. LEXIS 99 (1911).

    Effect of recital of debt in deed of trust. —

    The mere recital of a debt in a deed of trust executed as collateral security, without any express covenant or promise therein to pay the debt, does not convert the simple contract debt secured by the trust deed into a specialty for the purposes of the statute of limitations. Wolf v. Violett, 78 Va. 57 , 1883 Va. LEXIS 9 (1883).

    Architects’ contract with government. —

    This section applies where allegations by builders are premised upon duties alleged to flow from architects’ contract with the government. McCloskey & Co. v. Wright, 363 F. Supp. 223, 1973 U.S. Dist. LEXIS 13097 (E.D. Va. 1973).

    Action for unfair representation by union. —

    The two-year tort limitation set forth in § 8.01-243 controls an action charging union with unfair representations rather than the five-year contract statute of limitations under this section. Howard v. Aluminum Workers Int'l Union, 418 F. Supp. 1058, 1976 U.S. Dist. LEXIS 13447 (E.D. Va. 1976), aff'd, 589 F.2d 771, 1978 U.S. App. LEXIS 6755 (4th Cir. 1978).

    2.Partnership and Merchant Accounts.

    Cessation of partnership dealings. —

    The words “cessation of the dealings in which they are interested together” do not refer to the cessation of the active operations of the partnership, but embrace also any act done after its dissolution in winding it up. Foster v. Rison, 58 Va. (17 Gratt.) 187, 58 Va. (17 Gratt.) 321, 1867 Va. LEXIS 3 (1867) (see Hodge v. Kennedy, 198 Va. 416 , 94 S.E.2d 274 (1956)).

    Subdivision 3 as to accounts between merchant and merchant applies only to current or open accounts and not to accounts stated. Ellison v. Weintrob, 139 Va. 29 , 123 S.E. 512 , 1924 Va. LEXIS 82 (1924).

    But not to account where items all on one side. —

    The five-year limitation prescribed for accounts between merchants by this section is not applicable where there was never a mutual or current account, never any barter or exchange of goods between merchants, but only a single transaction with the debits all on one side. Ellison v. Weintrob, 139 Va. 29 , 123 S.E. 512 , 1924 Va. LEXIS 82 (1924).

    If the items of the account between merchant and merchant are all on one side, the claim will not be within the reason or principle of subdivision 3, which intends open and current accounts where there were mutual dealings and mutual credits or debits. Watson v. Lyle, 31 Va. (4 Leigh) 236, 1833 Va. LEXIS 13 (1833); Wortham & Co. v. Smith & Sampson, 56 Va. (15 Gratt.) 487, 1860 Va. LEXIS 14 (1860).

    Ignorance of rights and fraud of partner. —

    Where one partner for himself and another settles the partnership accounts with the acting partner, and receives payments of money for himself and the others, the fact that the other was ignorant of the existence of the debt due from the partner who collected the money, until within five years before the institution of a suit, is not sufficient to repel the bar of the statute. To have that effect such ignorance must proceed from the fraud of the partner collecting the money. Foster v. Rison, 58 Va. (17 Gratt.) 187, 58 Va. (17 Gratt.) 321, 1867 Va. LEXIS 3 (1867) (see Bickle v. Chrisman, 76 Va. 678 (1882)).

    Statute had not run where debts outstanding within five years before suit. —

    Upon a bill filed by a surviving partner against the administratrix of a deceased partner, the plea of the statute of limitations could not be sustained, where it appeared that there were good debts due to the firm outstanding within five years before the suit was brought. Coalter v. Coalter, 40 Va. (1 Rob.) 79, 1842 Va. LEXIS 14 (1842); Marsteller v. Weaver, 42 Va. (1 Gratt.) 391, 1845 Va. LEXIS 6 (1845); Jordan v. Miller, 75 Va. 442 , 1881 Va. LEXIS 26 (1881).

    3.Other Contracts Express or Implied.

    Oral contract. —

    Where evidence showed that the contract involved was oral and not written, the applicable period of limitation under this section was three years. Stauffer v. Fredericksburg Ramada, Inc., 411 F. Supp. 1136, 1976 U.S. Dist. LEXIS 16272 (D. Va. 1976).

    Attorney malpractice. —

    An action for the negligence of an attorney in the performance of professional services, while sounding in tort, is an action for breach of contract and thus governed by the statute of limitations applicable to contracts. Oleyar v. Kerr, 217 Va. 88 , 225 S.E.2d 398, 1976 Va. LEXIS 245 (1976).

    Action for amount of undercharge in freight shipment rate. —

    Congress not having prescribed any time within which an action shall be brought to recover the difference between an undercharge and the published rate on an interstate shipment of freight, the limitation on such a contract is that applicable to other implied contracts, which, under the statute of this State is three years. Atlantic C.L.R.R. v. Virginia Mfg. Co., 119 Va. 5 , 88 S.E. 103 (1916).

    Action for reasonable value of services rendered under unenforceable contract. —

    An action to recover the reasonable value of services rendered pursuant to a contract that was unenforceable under the statute of frauds is governed by the three-year limitation in this section. Ricks v. Sumler, 179 Va. 571 , 19 S.E.2d 889, 1942 Va. LEXIS 249 (1942).

    Action to recover taxes illegally exacted. —

    An action to recover taxes illegally exacted and paid under compulsion is governed by the statute of limitations applicable to a suit to recover money had and received under an implied promise to pay. City of Charlottesville v. Marks' Shows, Inc., 179 Va. 321 , 18 S.E.2d 890, 1942 Va. LEXIS 225 (1942).

    Action on stock assessment. —

    On stock assessments, when no written contract has been established, the limitation on the right of recovery is three years from the date of the call on the stock. Liberty Sav. Bank v. Otterview Land Co., 96 Va. 352 , 31 S.E. 511 , 1898 Va. LEXIS 100 (1898).

    The implied contract of assignee of stock to pay unpaid installments is governed by the three-year limitation in this section. Gold v. Paynter, 101 Va. 714 , 44 S.E. 920 , 1903 Va. LEXIS 78 (1903).

    Action to enforce bank stockholder’s double liability. —

    Actions to enforce bank stockholder’s double liability created by the laws of another state are governed by this section. Hospelhorn v. Corbin, 179 Va. 348 , 19 S.E.2d 72, 1942 Va. LEXIS 228 (1942).

    Action for contribution by joint tort-feasors. —

    Where a transit company brought an action for contribution, on behalf of insurance carriers who had indemnified the company for damages paid to a passenger for personal injuries, against tort-feasors jointly responsible with the transit company for the injuries, the cause of action arose out of an implied promise to pay, and therefore the three-year statute applied. McKay v. Citizens Rapid Transit Co., 190 Va. 851 , 59 S.E.2d 121, 1950 Va. LEXIS 175 (1950).

    The cause of action in cases of this kind arises out of the implied promise to pay, and therefore the three-year statute of limitations would apply. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646, 1961 Va. LEXIS 139 (1961).

    Implied contract for contribution by cosurety. —

    The right of action of a surety who calls upon a cosurety for contribution is based upon the implied promise growing out of the equitable relations which the sureties bear to each other, and not upon the written contract by which they become sureties. The statute of limitations applicable to such a case is three years, and not the limitation which applies to the bond, note or other writing which the surety has been compelled to pay. Tate v. Winfree, 99 Va. 255 , 37 S.E. 956 , 1901 Va. LEXIS 36 (1901).

    Parol agreement as to mode of payment of notes. —

    The maker and the payee of notes secured by a deed of trust entered into a contemporaneous parol agreement under which the payee was to go into possession of the land conveyed by the deed of trust and take the rents and profits of the land and the services of the maker for the term of the loan, at the end of which time the notes were to be discharged and the land released from the lien of the deed of trust. It was held that this agreement was a mere executory oral contract, barred by the three-year limitation in this section, and not a payment of the notes, against which limitation would not run, because it did not appear that there had ever been any acceptance of the possession of the land or the services of the maker as a payment of the notes. Rector v. Hancock, 127 Va. 101 , 102 S.E. 663 , 1920 Va. LEXIS 37 (1920).

    Vendee’s obligation to pay purchase money. —

    Where the vendee’s obligation to pay the purchase price of land is not evidenced in any other manner than by his acceptance of the deed, it is a simple contract debt, and the statute of limitations applicable to that class of debts is to be applied. Harris v. Shield, 111 Va. 643 , 69 S.E. 933 , 1911 Va. LEXIS 13 (1911).

    Unsigned agreement by grantee to pay notes for deferred purchase money payments. —

    The grantee’s contract, by reason of his acceptance of a deed without executing it, containing a covenant on his part to pay notes given for deferred payments of purchase money, is a simple contract, and not a specialty, and is subject to the act of limitations applicable to simple contracts, to-wit: three years. Taylor v. Forbes, 101 Va. 658 , 44 S.E. 888 , 1903 Va. LEXIS 71 (1903).

    Assumption by grantee of bonds given for purchase money. —

    In Virginia it is held that if the grantee of a deed assumes the payment of bonds given by his grantor for purchase money, and does not sign the deed, this creates a simple contract debt which is barred within three years from the time when it is assumed. W.L. Becker & Co. v. Norfolk & W. Ry., 125 Va. 558 , 100 S.E. 478 , 1919 Va. LEXIS 45 (1919).

    Action for double compensation under the Fair Labor Standards Act. —

    The double compensation provision of the Fair Labor Standards Act for failure to pay the minimum wages is compensation, not a penalty or punishment by the government, and this section is applicable to both the unpaid wages under the act and the double liability. Reliance Storage & Inspection Co. v. Hubbard, 50 F. Supp. 1012, 1943 U.S. Dist. LEXIS 2545 (D. Va. 1943).

    Suit against devisee to enforce right to support from realty. —

    Where testator devised a tract of land to his son, and also provided that his daughter was to have her home and support on the tract as long as she remained single, and the daughter was compelled to leave because of the conduct of the son’s wife, the son’s personal liability to the daughter arose by virtue of an implied or quasi-contract, and the statutory period of limitations applicable to an oral agreement applied and barred the entry of a personal judgment against him as to any sum which accrued more than three years prior to the institution of suit. Davis v. Davis, 190 Va. 468 , 57 S.E.2d 137, 1950 Va. LEXIS 145 (1950).

    Recovery of money paid under mistake. —

    Subject to the provision in § 8.01-249 , the three-year limitation applies to actions to recover money paid under mistake of fact. Hughes v. Foley, 203 Va. 904 , 128 S.E.2d 261, 1962 Va. LEXIS 234 (1962).

    Recovery of money paid to county treasurer as compensation. —

    Money received by a county treasurer in good faith as compensation for his services, and allowed to him in a settlement with the board of supervisors regularly made, is not held by him as a trustee, and the statute of limitations applies to an action against him to recover it back. Board of Supvrs. v. Vaughan, 117 Va. 146 , 83 S.E. 1056 , 1915 Va. LEXIS 18 (1915).

    Suit for settlement of county funds. —

    Demands arising more than three years before the institution of a suit by the supervisors of a county against the county treasurer for a settlement and adjustment of the county funds received by him are not barred by the statute of limitations. Herrell v. Board of Supvrs., 113 Va. 594 , 75 S.E. 87 , 1912 Va. LEXIS 75 (1912).

    Bond of county treasurer. —

    The right of the holder of a county warrant drawn on funds in the hands of a county treasurer, and duly registered, to assert his claim against a fund created by the treasurer for the indemnity of his sureties is never barred as to the treasurer, and as to the sureties it is not barred until ten years from the time the right of action accrues. Jennings v. Taylor, 102 Va. 191 , 45 S.E. 913 , 1903 Va. LEXIS 120 (1903).

    C.Pleading and Practice.
    1.Raising Defense.
    a.Who May Raise Defense.

    Statute is a personal defense. —

    The defense of the statute of limitations is a personal privilege, and to be made availing must be pleaded by defendants. The court has no power to interpose a plea ex mero motu. Clayton v. Hensley, 73 Va. (32 Gratt.) 65, 1879 Va. LEXIS 47 (1879); Smith v. Hutchinson, 78 Va. 683 , 1884 Va. LEXIS 41 (1884); McCartney v. Tyrer, 94 Va. 198 , 26 S.E. 419 , 1897 Va. LEXIS 63 (1897).

    Creditors may set it up in equity. —

    Where equity has taken possession of an estate for the purpose of distributing it among the creditors, any one of them interested in the fund may interpose the defense to the claim of another creditor. Tazewell's Ex'r v. Whittle's Adm'r, 54 Va. (13 Gratt.) 329, 1856 Va. LEXIS 19 (1856); McCartney v. Tyrer, 94 Va. 198 , 26 S.E. 419 , 1897 Va. LEXIS 63 (1897).

    One creditor may set up the statute of limitations in a creditors’ suit against the demand of another, although the debtor himself did not rely on it. Callaway v. Saunders, 99 Va. 350 , 38 S.E. 182 , 1901 Va. LEXIS 49 (1901).

    b.Mode and Sufficiency.

    Defense may be raised by answer. —

    Anything in an answer which will apprise the plaintiff that the defendant relies on the statute of limitations is sufficient, if such facts are stated as are necessary to show that the statute is applicable. Tazewell's Ex'r v. Whittle's Adm'r, 54 Va. (13 Gratt.) 329, 1856 Va. LEXIS 19 (1856).

    Must be relied on in pleadings. —

    In order for the statute of limitations to be of avail to a party it must be relied on in the pleadings. Hickman v. Stout, 29 Va. (2 Leigh) 6, 1830 Va. LEXIS 4 (1830); Smith v. Hutchinson, 78 Va. 683 , 1884 Va. LEXIS 41 (1884); Gibson v. Green, 89 Va. 524 , 16 S.E. 661 , 1893 Va. LEXIS 68 (1893).

    The statute of limitations cannot be insisted on in equity without being pleaded, or in some form relied on as a defense in the pleadings. Hickman v. Stout, 29 Va. (2 Leigh) 6, 1830 Va. LEXIS 4 (1830); Gibson v. Green, 89 Va. 524 , 16 S.E. 661 , 1893 Va. LEXIS 68 (1893); Hubble v. Poff, 98 Va. 646 , 37 S.E. 277 , 1900 Va. LEXIS 89 (1900).

    But not where there is no notice of set-off. —

    Where a defendant does not file the plea of set-off, but files his account and gives notice of set-off, the plaintiff has no opportunity to apply the statute of limitations, and he is therefore at liberty to rely upon it in evidence though it has not been set up in the replication. Trimyer v. Pollard, 46 Va. (5 Gratt.) 460, 1842 Va. LEXIS 53 (1842).

    Plea should state act relied on. —

    A plea of the statute of limitations should state on what act the defendant relies. A plea which merely refers in general terms to “the act of limitations” is irregular. Wortham & Co. v. Smith & Sampson, 56 Va. (15 Gratt.) 487, 1860 Va. LEXIS 14 (1860).

    It should refer to time of suit. —

    The plea of the statute of limitations should refer to the time of the institution of the suit. Smith v. Walker, 1 Va. (1 Wash.) 135, 1 Wash. 135, 1792 Va. LEXIS 28 (1792).

    When plea to some of several claims applicable to all. —

    Where a plea of the statute of limitations in form applies to only two out of three claims sued on, but it is clear that both parties and the court treated it as applicable to all the claims sued on, and all were in fact barred by the statute, and the trial court so held, its judgment, though technically erroneous, will not be reversed. Liskey v. Paul, 100 Va. 764 , 42 S.E. 875 , 1902 Va. LEXIS 84 (1902).

    Taking issue on plea constituting no defense. —

    Where the defendant pleaded that the demand sued for had accrued more than three years before the action was instituted, and the plaintiff took issue on the plea, and it appeared that the right to recover was founded on a contract evidenced by writings, the court did not err in refusing to instruct the jury on the issue raised by the plea of the three-year statute, though the plaintiff should have demurred or objected to the plea instead of taking issue upon it. Newman v. McComb, 112 Va. 408 , 71 S.E. 624 , 1911 Va. LEXIS 99 (1911).

    Answer by legatee to bill against executor and legatee. —

    In a bill by creditor of testator against executor and legatee, the latter relies upon the statute of limitations in his answer. This is sufficient to protect the estate from a decree against the executor. Tazewell's Ex'r v. Whittle's Adm'r, 54 Va. (13 Gratt.) 329, 1856 Va. LEXIS 19 (1856).

    Bar of the statute may be set up in equity by excepting to the report of the commissioner. Johnston v. Wilson, 70 Va. (29 Gratt.) 379, 1877 Va. LEXIS 29 (1877); Smith v. Pattie, 81 Va. 654 , 1886 Va. LEXIS 132 (1886); Ayre v. Burke, 82 Va. 338 , 4 S.E. 618 , 1886 Va. LEXIS 39 (1886); Leith v. Carter, 83 Va. 889 , 5 S.E. 584 , 1887 Va. LEXIS 134 (1887).

    Waiver of statute of limitations as a defense. —

    In a suit by a board of supervisors against a county treasurer for the settlement of his accounts, the treasurer’s answer uniting in the prayer of the bill for an account, and specifically praying for an inquiry into all settlements made by him “from the time he became such treasurer until the present moment,” is a waiver of the statute of limitations. Herrell v. Board of Supvrs., 113 Va. 594 , 75 S.E. 87 , 1912 Va. LEXIS 75 (1912).

    c.Time of Raising.

    Plea not allowed after joinder of issue on another plea. —

    A plea of the act of limitations ought not to be received after issue joined on another plea, unless some good reason be assigned why the plea of the act of limitations was not sooner tendered. Martin v. Anderson, 27 Va. (6 Rand.) 19, 1827 Va. LEXIS 41 (1827).

    Delay in filing plea in equity. —

    A plea of the statute of limitations which is not interposed in a chancery suit until after the evidence is closed, may well be rejected, as coming too late, where no excuse is offered for the delay. Herrell v. Board of Supvrs., 113 Va. 594 , 75 S.E. 87 , 1912 Va. LEXIS 75 (1912).

    b.Mode and Sufficiency.

    Defense may be raised by answer. —

    Anything in an answer which will apprise the plaintiff that the defendant relies on the statute of limitations is sufficient, if such facts are stated as are necessary to show that the statute is applicable. Tazewell's Ex'r v. Whittle's Adm'r, 54 Va. (13 Gratt.) 329, 1856 Va. LEXIS 19 (1856).

    Must be relied on in pleadings. —

    In order for the statute of limitations to be of avail to a party it must be relied on in the pleadings. Hickman v. Stout, 29 Va. (2 Leigh) 6, 1830 Va. LEXIS 4 (1830); Smith v. Hutchinson, 78 Va. 683 , 1884 Va. LEXIS 41 (1884); Gibson v. Green, 89 Va. 524 , 16 S.E. 661 , 1893 Va. LEXIS 68 (1893).

    The statute of limitations cannot be insisted on in equity without being pleaded, or in some form relied on as a defense in the pleadings. Hickman v. Stout, 29 Va. (2 Leigh) 6, 1830 Va. LEXIS 4 (1830); Gibson v. Green, 89 Va. 524 , 16 S.E. 661 , 1893 Va. LEXIS 68 (1893); Hubble v. Poff, 98 Va. 646 , 37 S.E. 277 , 1900 Va. LEXIS 89 (1900).

    But not where there is no notice of set-off. —

    Where a defendant does not file the plea of set-off, but files his account and gives notice of set-off, the plaintiff has no opportunity to apply the statute of limitations, and he is therefore at liberty to rely upon it in evidence though it has not been set up in the replication. Trimyer v. Pollard, 46 Va. (5 Gratt.) 460, 1842 Va. LEXIS 53 (1842).

    Plea should state act relied on. —

    A plea of the statute of limitations should state on what act the defendant relies. A plea which merely refers in general terms to “the act of limitations” is irregular. Wortham & Co. v. Smith & Sampson, 56 Va. (15 Gratt.) 487, 1860 Va. LEXIS 14 (1860).

    It should refer to time of suit. —

    The plea of the statute of limitations should refer to the time of the institution of the suit. Smith v. Walker, 1 Va. (1 Wash.) 135, 1 Wash. 135, 1792 Va. LEXIS 28 (1792).

    When plea to some of several claims applicable to all. —

    Where a plea of the statute of limitations in form applies to only two out of three claims sued on, but it is clear that both parties and the court treated it as applicable to all the claims sued on, and all were in fact barred by the statute, and the trial court so held, its judgment, though technically erroneous, will not be reversed. Liskey v. Paul, 100 Va. 764 , 42 S.E. 875 , 1902 Va. LEXIS 84 (1902).

    Taking issue on plea constituting no defense. —

    Where the defendant pleaded that the demand sued for had accrued more than three years before the action was instituted, and the plaintiff took issue on the plea, and it appeared that the right to recover was founded on a contract evidenced by writings, the court did not err in refusing to instruct the jury on the issue raised by the plea of the three-year statute, though the plaintiff should have demurred or objected to the plea instead of taking issue upon it. Newman v. McComb, 112 Va. 408 , 71 S.E. 624 , 1911 Va. LEXIS 99 (1911).

    Answer by legatee to bill against executor and legatee. —

    In a bill by creditor of testator against executor and legatee, the latter relies upon the statute of limitations in his answer. This is sufficient to protect the estate from a decree against the executor. Tazewell's Ex'r v. Whittle's Adm'r, 54 Va. (13 Gratt.) 329, 1856 Va. LEXIS 19 (1856).

    Bar of the statute may be set up in equity by excepting to the report of the commissioner. Johnston v. Wilson, 70 Va. (29 Gratt.) 379, 1877 Va. LEXIS 29 (1877); Smith v. Pattie, 81 Va. 654 , 1886 Va. LEXIS 132 (1886); Ayre v. Burke, 82 Va. 338 , 4 S.E. 618 , 1886 Va. LEXIS 39 (1886); Leith v. Carter, 83 Va. 889 , 5 S.E. 584 , 1887 Va. LEXIS 134 (1887).

    Waiver of statute of limitations as a defense. —

    In a suit by a board of supervisors against a county treasurer for the settlement of his accounts, the treasurer’s answer uniting in the prayer of the bill for an account, and specifically praying for an inquiry into all settlements made by him “from the time he became such treasurer until the present moment,” is a waiver of the statute of limitations. Herrell v. Board of Supvrs., 113 Va. 594 , 75 S.E. 87 , 1912 Va. LEXIS 75 (1912).

    c.Time of Raising.

    Plea not allowed after joinder of issue on another plea. —

    A plea of the act of limitations ought not to be received after issue joined on another plea, unless some good reason be assigned why the plea of the act of limitations was not sooner tendered. Martin v. Anderson, 27 Va. (6 Rand.) 19, 1827 Va. LEXIS 41 (1827).

    Delay in filing plea in equity. —

    A plea of the statute of limitations which is not interposed in a chancery suit until after the evidence is closed, may well be rejected, as coming too late, where no excuse is offered for the delay. Herrell v. Board of Supvrs., 113 Va. 594 , 75 S.E. 87 , 1912 Va. LEXIS 75 (1912).

    2.Replication.

    Exceptions to statute must be pleaded. —

    Where the statute is pleaded, plaintiff, to bring himself within its savings, must set forth the facts relied on either by replication or by amending his bill. Lewis v. Bacon, 13 Va. (3 Hen. & M.) 89, 1808 Va. LEXIS 77 (1808); Switzer v. Noffsinger, 82 Va. 518 , 1886 Va. LEXIS 66 (1886).

    And allegations must be supported by evidence. —

    Where a replication was filed to the plea of the statute of limitations that the accounts concerned the trade of merchandise between merchant and merchant, but no evidence was adduced to prove that either party was a merchant during the time of their dealings, nor any evidence of the character of the dealings between them, the replication was not supported by the evidence and the demand was therefore barred. Watson v. Lyle, 31 Va. (4 Leigh) 236, 1833 Va. LEXIS 13 (1833).

    3.Evidence.

    Burden of proof is on the pleader. —

    The burden is on the pleader to make out a case to which the statute clearly applies. Goodell's Ex'r v. Gibbons, 91 Va. 608 , 22 S.E. 504 , 1895 Va. LEXIS 58 (1895); Virginia Ry. & Power Co. v. Ferebee, 115 Va. 289 , 78 S.E. 556 , 1913 Va. LEXIS 33 (1913); Virginia Lumber & Extract Co. v. O.D. McHenry Lumber Co., 122 Va. 111 , 94 S.E. 173 , 1917 Va. LEXIS 88 (1917).

    If the creditor relies upon a charge in a will to prevent the operation of the statute, it is for him to show that the testator died before his debt was barred. Tazewell's Ex'r v. Whittle's Adm'r, 54 Va. (13 Gratt.) 329, 1856 Va. LEXIS 19 (1856).

    Where the statute of limitations is pleaded as a defense, the party relying thereon has the burden of showing by a preponderance of the evidence that the cause of action arose more than the statutory period before the action was instituted. Columbia Heights Section 3, Inc. v. Griffith-Consumers Co., 205 Va. 43 , 135 S.E.2d 116, 1964 Va. LEXIS 143 (1964).

    Where a statement of account specified that it was due “on receipt,” the burden was on defendant, who pleaded the statute of limitations, to prove the date of receipt. Columbia Heights Section 3, Inc. v. Griffith-Consumers Co., 205 Va. 43 , 135 S.E.2d 116, 1964 Va. LEXIS 143 (1964).

    The burden is upon the party pleading the statute of limitations as a defense to show by a preponderance of the evidence that the cause of action arose more than the statutory period before the action was instituted. Clifton D. Mayhew, Inc. v. Blake Constr. Co., 482 F.2d 1260, 1973 U.S. App. LEXIS 8586 (4th Cir. 1973).

    The course of dealings between the parties may show their intent. Clifton D. Mayhew, Inc. v. Blake Constr. Co., 482 F.2d 1260, 1973 U.S. App. LEXIS 8586 (4th Cir. 1973).

    CIRCUIT COURT OPINIONS

    Undisclosed principal. —

    Trust was a party to the agreement as an undisclosed principal and could bring suit to enforce its terms; the trust’s claim for breach of the agreement was governed by a five year statute of limitations, and as this action was commenced on November 7, 2014, the action was timely as to any breach of the agreement that occurred on or after November 7, 2009. Carlen v. T.C. Gifford, LLC, 90 Va. Cir. 430, 2015 Va. Cir. LEXIS 104 (Norfolk Aug. 13, 2015).

    Right of action for contribution arises upon discharge of common obligation. —

    Complainant guarantor’s motion to strike respondent guarantor’s set-off defense to complainant’s action seeking contribution for settlement proceeds paid pursuant to a corporate loan default was granted, where respondent’s defenses were barred by the applicable three-year limitations period under either Virginia or Maryland law, as provided by the guarantee agreement and by the policy of this section; a plea of set-off was subject to a statute of limitations defense. Williams v. Kinser, 64 Va. Cir. 128, 2004 Va. Cir. LEXIS 29 (Fairfax County Feb. 24, 2004).

    Actions for legal malpractice are governed by the limitations periods. —

    Client’s suit against her attorney, his former partner, and his former law firm was filed within the five-year statute of limitations specified in subdivision 2 of § 8.01-246 where: (1) the attorney failed to pursue the client’s workers’ compensation claim, which was covered by the written retainer agreement with the attorney and the firm within the statute of limitations, (2) the retainer agreement covered both the client’s medical expenses and lost wages claims under the worker’s compensation laws, (3) the statute of limitations against the partner and the firm began when the client was advised that the attorney had left the firm, and (4) the statute of limitations against the attorney began when the client confronted the attorney and he ceased representing her. Lockney v. Vroom, 61 Va. Cir. 359, 2003 Va. Cir. LEXIS 263 (Norfolk Mar. 21, 2003).

    Client’s claims for legal malpractice arising out of her attorney’s representation as to her social security benefits claim and representation resulting in default judgments against the client were not covered by the written retainer agreement and were governed by the three-year statute of limitations under subdivision 4 of § 8.01-246 . Lockney v. Vroom, 61 Va. Cir. 359, 2003 Va. Cir. LEXIS 263 (Norfolk Mar. 21, 2003).

    Continuing treatment rule not applicable. —

    When a client alleged that tax returns filed by an accountant had improperly characterized income, he had not shown that the continuing treatment rule applied, and his claims against the accountant for the tax years 1994 through 1999 were time-barred. The filing of each return, a separate, distinct act contracted for annually, triggered the limitations period; phone calls about the client’s overall finances were unrelated to previous returns. Byrd v. Goodman & Co. LLP, 71 Va. Cir. 48, 2006 Va. Cir. LEXIS 154 (Virginia Beach Feb. 21, 2006).

    Action barred. —

    A creditor’s action for breach of oral contract and implied contract was barred by the statute of limitations, where the underlying loans to the creditor were deemed to be payable on demand, and were thus subject to a three-year statute of limitations under § 8.01-246 , and the motion for judgment was filed more than three years after the date on which any single loan was made. Tsilis v. Wade, 59 Va. Cir. 71, 2002 Va. Cir. LEXIS 127 (Loudoun County Apr. 16, 2002).

    Where there was no contractual relationship between a builder and a condominium association, no allegation that the builder was negligent or caused damage, and the action was untimely under either subdivision 2 of § 8.01-246 or subsection B of § 8.01-243 , neither an implied nor an equitable indemnity claim could be sustained. Stone Ridge Condo. Unit Owners' Ass'n v. J. M. Turner & Co., 62 Va. Cir. 280, 2003 Va. Cir. LEXIS 118 (Nelson County July 14, 2003).

    Because a customer used a company’s fictitious name in the original pleadings and then nonsuited the action, the statute of limitations in § 8.01-246 was not tolled; therefore, the customer could not amend the action under §§ 8.01-6 and 8.01-6.2 to add the company’s real name. Harvey v. Mech. Air Servs., 69 Va. Cir. 214, 2005 Va. Cir. LEXIS 184 (Norfolk Oct. 26, 2005).

    Cause of action for breach of an oral contract for continued employment was barred by the statute of limitations where the cause of action accrued when the employment offer was allegedly rescinded, not when long-term disability benefits ceased. All elements of the breach of an oral contract claim were present on that date and the cessation of benefits was an effect of alleged breach. Valentine v. Norfolk Southern Corp., 73 Va. Cir. 354, 2007 Va. Cir. LEXIS 216 (Norfolk June 4, 2007).

    Property buyer’s action against a bank for breach of contract was time-barred by the five-year statute of limitations under subdivision 2 of § 8.01-246 because the cause of action accrued upon the date of the purported breach and not upon the discovery of the breach or resulting damages under § 8.01-230 . Bear Ridge Developers, L.L.C. v. Cooper, 78 Va. Cir. 50, 2008 Va. Cir. LEXIS 182 (Fairfax County Dec. 2, 2008).

    Pleas in bar to the breach of contract count were sustained based on the statute of limitations because all contract statutes of limitations had expired before the company filed its product liability suit; because the company alleges the uninterrupted power supply battery cabinet was improperly designed, manufactured, and installed in its operations center, the defect complained of existed as of the date of completion of the operations center. E. Va. Bank Shares, Inc. v. PPI Dissolution Co., 100 Va. Cir. 472, 2013 Va. Cir. LEXIS 225 (Essex County Apr. 15, 2013).

    Pleas in bar to implied warranty claims were sustained because the company’s suit was not filed until almost eight years after the parties entered into the contracts; neither the general contractor nor the subcontractor were merchants under the Uniform Commercial Code, and to the extent that any other warranty claim against them was made, such claims were barred by the five-year statute of limitations for written contract and the three-year statute of limitations for an unwritten contract. E. Va. Bank Shares, Inc. v. PPI Dissolution Co., 100 Va. Cir. 472, 2013 Va. Cir. LEXIS 225 (Essex County Apr. 15, 2013).

    Action not barred where filing obstructed. —

    Demurrer was overruled as to an insured’s claim for breach of an unwritten contract even though subdivision 4 of § 8.01-246 provided a three-year statute of limitations, as under subsection D of § 8.01-229 , the time during which the filing of an action was obstructed was not counted as part of the period within which the action had to be brought. Nowland v. Tri Core, Inc., 60 Va. Cir. 469, 2000 Va. Cir. LEXIS 643 (Richmond Apr. 28, 2000).

    Action on hospital bill. —

    Because a contract, drafted by a hospital, made clear that a patient’s bill was payable in full within 90 days of discharge, it was not a line of credit/open account; consequently, the hospital’s suit, which was filed more than five years after its cause of action accrued, was initiated outside the applicable period of limitations in § 8.01-246 . Carillon Med. Ctr. v. Ady, 77 Va. Cir. 299, 2008 Va. Cir. LEXIS 162 (Roanoke Nov. 24, 2008).

    Actions on installment contracts. —

    Trial court determined, regarding a promissory note, that the five-year breach of contract statute of limitations that applied began to run at the time the installment payment was due to be paid in accordance with the promissory note, as courts generally followed that approach and Virginia followed that general rule. Gilliam v. Gilliam, 2003 Va. Cir. LEXIS 173 (Fairfax County Aug. 14, 2003).

    Breach of contract. —

    Golf course builder’s breach of contract, express warranty, implied warranty of fitness, and warranty negligence claims were time-barred under subdivision 2 of § 8.01-246 where, by the builder’s own admission, the action was filed almost seven years after the transport of the fly ash ceased. CPM Va., L.L.C. v. Va. Elec. & Power Co., 96 Va. Cir. 90, 2017 Va. Cir. LEXIS 107 (Chesapeake July 14, 2017).

    Action on commercial lease. —

    Tenant’s suit alleging that a landlord breached a commercial lease was timely because it was filed three years after accrual of the cause of action, which occurred upon execution of a third amended lease containing the allegedly reached provision. GPM Invs., L.L.C. v. Brandy Hill Assocs., L.L.C., 77 Va. Cir. 448, 2009 Va. Cir. LEXIS 101 (Hanover County Mar. 17, 2009).

    Warranty claims. —

    Warranty period language of the contract did not concern the period within which suit must be filed; the warranty claims asserted were not time-barred because the applicable statute of limitations was the five-year limitation of subdivision 2 of § 8.01-246 and the claims were well within that time period. Gilmore v. Fifield, 61 Va. Cir. 481, 2003 Va. Cir. LEXIS 226 (Loudoun County Apr. 22, 2003).

    Equitable estoppel. —

    Equitable estoppel did not affect the application of the statute of limitations under § 8.01-246 to a partner and a law firm in a client’s suit for legal malpractice as the firm did not do anything after the relationship terminated to conceal its alleged malpractice, and the only person that the client alleged to have concealed malpractice after the firm ceased its representation of the client was the attorney, who was no longer an employee of the firm. Lockney v. Vroom, 61 Va. Cir. 359, 2003 Va. Cir. LEXIS 263 (Norfolk Mar. 21, 2003).

    Suit for reformation of a contract. —

    Insurer’s motion for summary judgment was dismissed and its plea of the statute of limitations was overruled as § 8.01-246 did not apply to a suit in equity for the reformation of a contract. Bryan v. Nationwide Mut. Ins. Co., 65 Va. Cir. 233, 2004 Va. Cir. LEXIS 134 (Charlottesville July 19, 2004).

    Inverse condemnation action. —

    Because an inverse condemnation action was one based on an implied contract, the landowners’ action, based on drilling undertaken by a county and others on their property, that affected the landowners’ abilities to exercise their rights in that property, was dismissed after the cause of action was filed beyond the statute of limitations under subdivision 4 of this section; moreover, the court sustained a plea in bar and demurrer filed against the landowners, as their motion for judgment failed to allege that the county unreasonably used the surface water and this unreasonable use caused the water from a well to be materially diminished in flow, or the land rendered so arid, as to be less valuable. Holland v. Nelson County Serv. Auth., 70 Va. Cir. 45, 2005 Va. Cir. LEXIS 277 (Nelson County Sept. 1, 2005).

    Property owner’s claim for inverse condemnation was time-barred, regardless of when the cause of action accrued, because the owner discovered the error well before filing the complaint. TLP, LLC v. Cent. Tel. Co., 93 Va. Cir. 275, 2016 Va. Cir. LEXIS 63 (Campbell County May 4, 2016).

    Laches. —

    Plaintiffs filed their complaint less than two years after foreclosure, and thus the claims for breach and fraud were brought within their respective statute of limitations; while plaintiffs were not barred by laches, they failed to plead sufficient facts that there was no adequate remedy at law, given that damages could be awarded after foreclosure while equity was appropriate prior to foreclosure, and the demurrer was sustained in this regard. Waters v. CitiMortgage, Inc., 92 Va. Cir. 460, 2013 Va. Cir. LEXIS 209 (Chesterfield County Jan. 14, 2013).

    Disclosure statement in real estate transaction. —

    Buyer could not maintain a direct claim under the Virginia Residential Property Disclosure Act, subsection C of § 55-524, against the sellers for allegedly failing to make certain disclosures to the buyer in a disclaimer statement that the sellers gave to the buyer of residential property that contained numerous building restrictions, as the buyer did not bring an action within one year of the time in which the buyer allegedly did not receive the proper disclosures. However, the buyer could maintain an action against the seller’s agents for claims brought ex contractu or ex delicto against them, as the buyer’s action was filed against them well within the one-year statute of limitation for personal injury, § 8.01-243 , and contracts, governed by § 8.01-246 , running from the settlement date regarding the relevant real estate transaction. McGlen v. Barrett, 78 Va. Cir. 90, 2009 Va. Cir. LEXIS 6 (Fairfax County Jan. 9, 2009).

    When action accrued. —

    Assuming that § 8.01-246 applied, because the injury to a finance company occurred when the title company did not meet its contractual obligation to secure the security interest in the property with a first-priority deed of trust, by the date of filing, the statute of limitations already had run, since, while one might argue that the injury caused to the finance company when the title company did not secure the Refinance Loan with a first-priority deed of trust was slight compared to the damages incurred after the foreclosure itself, any injury, regardless of how slight, began the running of the statute of limitations, and it was immaterial that all the damages did not occur at the time of the injury. Stewart Title Guar. Co. v. Premier Title, Inc., 84 Va. Cir. 39, 2011 Va. Cir. LEXIS 191 (Fairfax County Dec. 7, 2011).

    Accrual date for contract action. —

    Lessee’s breach of contract counterclaim was timely filed because consequential damage did not occur until April 2008 when the lessee had to begin pumping and hauling production waste to an off-site location; therefore, the statute of limitations would have begun to run in April 2008 and would not expire until April 2013, five years from the date of the damage or injury. Colchester Sec. II, LLC v. Krispy Kreme Doughnut Corp., 85 Va. Cir. 250, 2012 Va. Cir. LEXIS 73 (Fairfax County Aug. 23, 2012).

    Lessee’s breach of contract counterclaim was timely filed because the lessor’s obligations as to wastewater removal were executory, namely, existing throughout the lease term, and the lessee’s cause of action would not accrue until the date its lease was ended. Colchester Sec. II, LLC v. Krispy Kreme Doughnut Corp., 85 Va. Cir. 250, 2012 Va. Cir. LEXIS 73 (Fairfax County Aug. 23, 2012).

    Two-year limitations period in subdivision 2 of § 8.01-246 was a bar to a home purchaser’s breach of contract claim against a builder and a seller because more than five years elapsed before the purchaser filed the action. Frye v. B & B Contr., Inc., 85 Va. Cir. 475, 2012 Va. Cir. LEXIS 194 (Roanoke County Oct. 31, 2012).

    Action not barred. —

    Although an assignee’s breach of contract action was not barred by the statute of frauds under subdivision 9 of § 11-2 because it was clear from the terms of a repayment contract document that debtors intended to authenticate the document when they signed it and had it notarized, the action could have been barred by the statute of limitations under § 8.01-246 as the terms of an oral contract still had to be established. Faison v. Hughson, 80 Va. Cir. 96, 2010 Va. Cir. LEXIS 20 (Roanoke Jan. 22, 2010).

    Plaintiff’s action seeking recision was not barred because the statute of limitations had not fully run at the time of filing based on when the action accrued; the complaint outlined allegations of a period of undue influence lasting until at least March 25, 2011, when plaintiff allegedly signed over a check to defendant and the suit was filed on March 18, 2016, and consequently, even if the five-year statute of limitations applied, it would not have run by the time of filing. Good v. Weaver, 98 Va. Cir. 493, 2016 Va. Cir. LEXIS 330 (Rockingham County Aug. 22, 2016).

    All the terms of the agreement between plaintiff and defendant were committed to writing, and these terms were unconditionally assented to by the parties. The contract was a written contract to which subdivision 2 of § 8.01-246 applied, and the five-year statute of limitations did not bar plaintiff’s complaint. M&C Hauling & Constr., Inc. v. Hale, 99 Va. Cir. 276, 2018 Va. Cir. LEXIS 114 (Fairfax County June 28, 2018).

    Unwritten agreement. —

    Five-year limitations period of § 8.01-246 applied to a breach of contract action where the correspondence cited by both parties showed that the original written contract remained in full force and effect when the parties failed to reach a new agreement. Genesis Dev. Ventures, L.L.C. v. Perkinson Constr., L.L.C., 93 Va. Cir. 249, 2016 Va. Cir. LEXIS 233 (Prince George County Apr. 28, 2016).

    Amended tax return did not serve as a written contract between the parties and contained no terms, conditions, remedies, or other obligations and/or benefits resulting from a bargained-for exchange; the tax returns were the result of an agreement, not the agreement itself, and the contractual relationship for services was an unwritten one and the statute of limitations was three years. Miller v. Dees, 95 Va. Cir. 101, 2017 Va. Cir. LEXIS 53 (Page County Jan. 26, 2017).

    Last date that any services were arguably performed by defendant on the unwritten contract was August 23, 2013, and the filing of this action on October 11, 2016 was clearly outside of the three-year time period. Miller v. Dees, 95 Va. Cir. 101, 2017 Va. Cir. LEXIS 53 (Page County Jan. 26, 2017).

    Claim by a subcontractor and his wife (jointly, the creditors) for an oral contract and unjust enrichment survived the three-year statute of limitations and the one-year statute of frauds because the actions by the debtors to pay a premium above the costs of construction and then to work on a build out were consistent and corroborate the existence of an alleged oral contract, and, up until the debtors’ repudiation, the creditors believed there was an agreement and were arguably expecting compensation, the creditors did more than pay down the debt, they obtained a release and discharge from the lender. Cove v. Wallen, 104 Va. Cir. 6, 2019 Va. Cir. LEXIS 1204 (Fairfax County July 31, 2019).

    Unjust enrichment claim. —

    As a limited liability company’s (LLC) unjust enrichment was alleged to arise from its unjust use of property owners’ land and its receipt of fees from customers, the owners’ ejectment claim against it accrued no later than when they purchased the land and was barred by the statute of limitations; a new cause of action against the LLC did not arise upon each customer’s payment of his or her monthly bill or the execution of a new contract between the LLC and power company. Richardson v. Va. Elec. & Power Co., 96 Va. Cir. 114, 2017 Va. Cir. LEXIS 143 (Norfolk July 17, 2017).

    OPINIONS OF THE ATTORNEY GENERAL

    Credit card agreements. —

    The statute of limitations for written contracts applies to credit card agreements where the agreement consists of a series of documents, provided that at least one of the documents referencing and incorporating the others is signed by the cardholder, and that the documents contain all essential terms of the agreement. See opinion of Attorney General to The Honorable Bill Janis, Member, House of Delegates, 10-128, 2011 Va. AG LEXIS 11 (02/07/11).

    § 8.01-247. When action on contract governed by the law of another state or country barred in Virginia.

    No action shall be maintained on any contract which is governed by the law of another state or country if the right of action thereon is barred either by the laws of such state or country or of this Commonwealth.

    History. Code 1950, § 8-23; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-247 restates former § 8-23 relating to foreign contracts. The words “is governed by the law of” are substituted for the former words “was made and was to be performed in,” because the former phrase is more in keeping with modern conflicts of laws principles. No change in substance is intended thereby. The section also removes the residency proscription of former § 8-23.

    Michie’s Jurisprudence.

    For related discussion, see 4A M.J. Conflict of Laws, Domicile and Residence, § 39.

    CASE NOTES

    Contract interpreted under law of another state. —

    In a homeowners’ breach of contract count based on the application of EIFS, rather than conventional stucco, the three-year statute of limitations from Md. Code Ann., § 5-101 of the Courts Article, rather than the five-year subdivision 2 of § 8.01-246 statute of limitations, was applied as the contract specified that it was to be interpreted under Maryland law, and § 8.01-247 provided that the shorter statute of limitations was to be applied to actions for breaches of contracts governed by the law of another state. Hansen v. Stanley Martin Cos., 266 Va. 345 , 585 S.E.2d 567, 2003 Va. LEXIS 80 (2003).

    Claim for breach of oral contract to recover monies lent by the plaintiff to the defendants was barred by the statute of limitations; under Virginia’s borrowing statute, since the breach of contract claim was barred by California’s two-year statute of limitations given the plaintiff’s concession that she filed the action more than two years after the contract was breached, the claim was also barred in Virginia. Johnson v. Brown, 372 F. Supp. 2d 501, 2005 U.S. Dist. LEXIS 10963 (E.D. Va. 2005).

    In this breach of contract action, because the limitations period for a written contract was only three years in the District of Columbia, Virginia’s borrowing statute dictated that the District of Columbia’s three-year statute of limitations applied in this action; the record reflected that the contract at issue, which required plaintiff to repair the insured property, was performed in the District of Columbia, the insured property’s location. Hunter Innovations Co. v. Travelers Indem. Co., 753 F. Supp. 2d 597, 2010 U.S. Dist. LEXIS 123705 (E.D. Va. 2010).

    Although the federal court, sitting in diversity, was sitting in Virginia, Virginia law contains a “borrowing” statute that incorporates another state’s statute of limitations when that state’s substantive law governs the contract. Therefore, the parties’ lawsuit was governed by North Carolina’s three-year statute of limitations. River Cmty. Bank, N.A. v. Bank of N.C., No. 4:14-cv-00048, 2015 U.S. Dist. LEXIS 80031 (W.D. Va. June 19, 2015).

    Repeated defamations do not constitute a continuing tort, such that the statute of limitations runs only from the last statement, as the courts have uniformly recognized that each separate defamatory statement itself constitutes a separate and distinct cause of action. Lewis v. Gupta, 54 F. Supp. 2d 611, 1999 U.S. Dist. LEXIS 8379 (E.D. Va. 1999).

    Action on account stated not barred by statute of limitations. —

    Because a cause of action based on an account stated between a debtor and a creditor arose when a corporate officer of the debtor signed the statement of account, which contained a forum selection clause designating Virginia as the forum, less than four years before proceedings were commenced on the creditor’s claim in the debtor’s bankruptcy, the creditor’s claim was not barred by the Virginia or Texas statutes of limitations. Official Comm. of Unsecured Creditors v. Fairchild Dornier GmbH (In re Dornier Aviation (N. Am.) Inc.), No. 02-82003-SSM, No. 02-8199-SSM, 2005 Bankr. LEXIS 561 (Bankr. E.D. Va. Feb. 8, 2005), aff'd, 453 F.3d 225, 2006 U.S. App. LEXIS 16101 (4th Cir. 2006).

    § 8.01-247.1. Limitation on action for defamation, etc.

    Every action for injury resulting from libel, slander, insulting words, or defamation shall be brought within one year after the cause of action accrues.

    If a publisher of statements actionable under this section publishes anonymously or under a false identity on the Internet, an action may be filed under this section and the statute of limitations shall be tolled until the identity of the publisher is discovered or, by the exercise of due diligence, reasonably should have been discovered.

    History. 1995, c. 9; 2015, c. 128.

    The 2015 amendments.

    The 2015 amendment by c. 128 added the second paragraph.

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Libel and Slander, § 45.

    CASE NOTES

    Voluntary nonsuit tolled statute of limitations. —

    When a scientist took a voluntary nonsuit in his original state court defamation action against a newspaper, he did so with respect to the set of operative facts underlying his complaint, namely the newspaper’s publication of a reporter’s columns. When he filed the instant defamation action in federal court, the tolling provision of § 8.01-229 saved all rights of action arising from that cause of action. Hatfill v. New York Times Co., 416 F.3d 320, 2005 U.S. App. LEXIS 15471 (4th Cir. 2005), cert. denied, 547 U.S. 1040, 126 S. Ct. 1619, 164 L. Ed. 2d 333, 2006 U.S. LEXIS 2518 (2006).

    Republication for purposes of statute of limitation. —

    Creating hypertext links to previously published statements did not constitute republication for purposes of Virginia’s one year statute of limitations for defamation actions. Even to the extent that third party electronic references included new comments on the allegedly defamatory materials, those comments did not constitute republication for which the original publisher could be held liable. Lokhova v. Halper, 441 F. Supp. 3d 238, 2020 U.S. Dist. LEXIS 34145 (E.D. Va. 2020), aff'd, 995 F.3d 134, 2021 U.S. App. LEXIS 10796 (4th Cir. 2021).

    Claim timely. —

    Because the information provided in a supplemental interrogatory answer, the motion for judgment, and the bill of particulars was consistent with the two statements provided to the jury as consisting of the defamation claim, the first of these statements was pled within the limitations period. Gov't Micro Res., Inc. v. Jackson, 271 Va. 29 , 624 S.E.2d 63, 2006 Va. LEXIS 1 (2006).

    Claim not timely. —

    Where an allegedly defamatory email was sent on June 11, 2007, plaintiff’s defamation claim was barred under the statute of limitations as of June 11, 2008; because plaintiff did not file his complaint until August 29, 2008, it was time barred. Cominelli v. Rector & Visitors of the Univ. of Va., 589 F. Supp. 2d 706, 2008 U.S. Dist. LEXIS 99428 (W.D. Va. 2008), aff'd, 362 Fed. Appx. 359, 2010 U.S. App. LEXIS 1562 (4th Cir. 2010).

    Pro se plaintiff’s claim against a doctor could not stand because the claim that the doctor called the police regarding plaintiff appeared to be a defamation claim that was untimely under the one-year limitation of action in § 8.01-247.1 .Vanover v. Shams, No. 1:08cv1037, 2008 U.S. Dist. LEXIS 111643 (E.D. Va. Oct. 22, 2008), aff'd, 326 Fed. Appx. 166, 2009 U.S. App. LEXIS 12140 (4th Cir. 2009).

    Electronic references to articles otherwise time-barred did not bring those earlier publications within Virginia’s one-year statute of limitations for defamation under the republication doctrine, as that doctrine typically applied to republication by defendant itself. Lokhova v. Halper, 441 F. Supp. 3d 238, 2020 U.S. Dist. LEXIS 34145 (E.D. Va. 2020), aff'd, 995 F.3d 134, 2021 U.S. App. LEXIS 10796 (4th Cir. 2021).

    Electronic references to, or distribution of, allegedly defamatory materials did not retrigger Virginia’s one year statute of limitations under the single publication rule. Lokhova v. Halper, 441 F. Supp. 3d 238, 2020 U.S. Dist. LEXIS 34145 (E.D. Va. 2020), aff'd, 995 F.3d 134, 2021 U.S. App. LEXIS 10796 (4th Cir. 2021).

    CIRCUIT COURT OPINIONS

    Credit card slander claims. —

    Where a credit card customer raised new slander claims for the first time in an amended motion for judgment and the statute of limitations had not been tolled, the new claims were barred by the one-year statute of limitations; in addition, because the only alleged claim in the original motion that had not been barred by the statute of limitations was not alleged in the amended motion, there was nothing for the court to decide. Armstrong v. Bank of Am., 61 Va. Cir. 131, 2003 Va. Cir. LEXIS 57 (Fairfax County Feb. 6, 2003).

    Claim timely. —

    Athletic director was not barred from moving forward with a defamation claim because all newspaper articles were properly before the court, and they related back to the original filing; the statute of limitations was extended by one hundred twenty-six days because of the declaration of judicial emergency for all but a portion of one statement. Naff v. Ferrum College, 108 Va. Cir. 5, 2021 Va. Cir. LEXIS 147 (Franklin County Apr. 19, 2021).

    § 8.01-248. Personal actions for which no other limitation is specified.

    Every personal action accruing on or after July 1, 1995, for which no limitation is otherwise prescribed, shall be brought within two years after the right to bring such action has accrued.

    History. Code 1950, § 8-24; 1954, c. 589; 1973, c. 385; 1977, c. 617; 1995, c. 9.

    REVISERS’ NOTE

    Section 8.01-248 is a catch-all provision for actions not otherwise covered by a statute of limitation; e.g., malicious prosecution and abuse of process. Cf. § 8.01-249 (3) .

    Law Review.

    For survey of Virginia law on torts for the year 1976-77, see 63 Va. L. Rev. 1491 (1977).

    For survey of Virginia law on practice and pleading for the year 1978-1979, see 66 Va. L. Rev. 343 (1980).

    For article, “Virginia’s Statute of Limitations for Section 1983 Claims After Wilson v. Garcia,” see 19 U. Rich. L. Rev. 257 (1985).

    For article, “Civil Rights and ‘Personal Injuries’: Virginia’s Statute of Limitations for Section 1983 Suits,” see 26 Wm. & Mary L. Rev. 199 (1985).

    For 1987 survey of Virginia civil procedure and practice, see 21 U. Rich. L. Rev. 667 (1987).

    For 1995 survey of employment law, see 29 U. Rich. L. Rev. 1027 (1995).

    For article reviewing case law and changes in legislation affecting Virginia construction law, see 40 U. Rich. L. Rev. 143 (2005).

    For Annual Survey, “Special Education Law,” see 44 U. Rich. L. Rev. 17 (2009).

    Michie’s Jurisprudence.

    For related discussion, see 3B M.J. Civil Rights, § 2.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Effect of 1995 amendment. —

    The 1995 amendment to this section, which extended the limitation period on miscellaneous causes of action to two years, did not apply retroactively to cover plaintiff’s cases. Nothing in the amended statute suggested that it applied retroactively, and in fact, the inclusion of an effective date, July 1, 1995, suggested just the opposite. Michael v. Sentara Health Sys., 939 F. Supp. 1220, 1996 U.S. Dist. LEXIS 14876 (E.D. Va. 1996).

    The statute of limitations cannot begin to run against a claim until all the elements of the cause of action exist and one of the essential elements of a cause of action for personal injury is the injury itself. Brown v. ABC, 704 F.2d 1296, 1983 U.S. App. LEXIS 28923 (4th Cir. 1983).

    Claim based on creditor’s failure to timely release a lien against a consumer’s residence after the underlying debt obligation was satisfied was barred by the statute of limitations, since the limitations period began to run when the creditor failed to file a certificate of satisfaction within the statutory period after payment rather than when the consumer demanded that the creditor record a certificate of satisfaction. Poindexter v. Mercedes-Benz Credit Corp., 792 F.3d 406, 2015 U.S. App. LEXIS 11650 (4th Cir. 2015).

    The statute of limitations does not accrue separately for each set of damages that results from a wrongful act. Once a cause of action is complete and the statute of limitations begins to run, it runs against all damages resulting from the wrongful act, even damages which may not arise until a future date. Brown v. ABC, 704 F.2d 1296, 1983 U.S. App. LEXIS 28923 (4th Cir. 1983).

    Cause accrues despite lack of quantifiable harm. —

    Where plaintiff was aware of accountant’s report letters and their review by third party absence of quantifiable harm as of that time did not mean that plaintiff ’s cause of action had not yet accrued. Semida v. Rice, 863 F.2d 1156, 1988 U.S. App. LEXIS 17137 (4th Cir. 1988).

    Tolling of statute. —

    A statute of limitations is tolled until a person intentionally misled by a putative defendant could reasonably discover the wrongdoing and bring action to redress it. Under Virginia’s doctrine of equitable estoppel, however, the Federal Deposit Insurance Corporation (FDIC) would have to do more than show that all of savings and loan directors were implicated in the wrongdoing, and that it was unable to sue until it became the corporation’s receiver. The FDIC also would have to show that the directors concealed their wrongdoing from savings and loan, subsidiary, and their shareholders, the parties from whom the FDIC derived its interest in this lawsuit, during the period after the last act of alleged misconduct until the FDIC became receiver. It would be for the district court, on remand, to determine the extent to which equitable estoppel tolled Virginia’s one-year statute of limitations. FDIC v. Cocke, 7 F.3d 396, 1993 U.S. App. LEXIS 26830 (4th Cir. 1993), cert. denied, 513 U.S. 807, 115 S. Ct. 53, 130 L. Ed. 2d 12, 1994 U.S. LEXIS 5412 (1994).

    This section held inapplicable. —

    A claim which sought to pierce the corporate veil of automobile dealership and impose personal liability on the defendant shareholders for the fraudulent conveyance of the dealership’s assets was not a fraud claim and thus was subject to limitation period in § 8.01-253 rather than this section. Curley v. Dahlgren Chrysler-Plymouth, Dodge, Inc., 245 Va. 429 , 429 S.E.2d 221, 9 Va. Law Rep. 1218, 1993 Va. LEXIS 71 (1993).

    Section is inapplicable to advance acquisitions. —

    In determining whether a successor corporation’s claim for reconveyance of land conveyed by advance acquisition to the Commonwealth of Virginia by a predecessor under § 33.1-90 [now § 33.2-1005 ] was timely, a trial court improperly relied upon § 8.01-248 , subdivision 4 of § 8.01-246 , and § 8.01-255.1 , applicable to actions for re-entry upon land for breach of conditions subsequent, was also inapplicable; these provisions were superseded by the more specific time limitations of § 33.1-90, which has a comprehensive and broad scope that in effect contains its own statute of limitations. Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 , 630 S.E.2d 514, 2006 Va. LEXIS 69 (2006).

    Defamation. —

    The Virginia Supreme Court has consistently applied the one-year statute of limitation in this section to defamation actions. Morrissey v. William Morrow & Co., 739 F.2d 962, 1984 U.S. App. LEXIS 20133 (4th Cir. 1984), cert. denied, 469 U.S. 1216, 105 S. Ct. 1194, 84 L. Ed. 2d 340, 1985 U.S. LEXIS 965 (1985).

    This section is applicable to actions for defamation. Welch v. Kennedy Piggly Wiggly Stores, Inc., 63 Bankr. 888 (W.D. Va. 1986).

    The statute of limitations under the law of the Commonwealth of Virginia for defamation is one year. Lewin v. Medical College, 910 F. Supp. 1161, 1996 U.S. Dist. LEXIS 1437 (E.D. Va. 1996) (see also 931 F. Supp. 443 (E.D. Va. 1996)).

    Defamation based on memorandum of lis pendens. —

    In proceeding on a theory of personal defamation, based on statements made in a memorandum of lis pendens, plaintiff’s threshold burden was to prove that defendants’ alleged defamatory statements were falsely made. Had defendants prevailed in their action in state court to have fraudulent conveyances set aside, plaintiff would be estopped from pursuing such a claim since defendants’ assertions would have been adjudged as valid. Thus, it was only after the court ruled in plaintiff’s favor (as defendant) that her action for defamation fully accrued. Since she instituted the suit within one year from the date of the state court’s final order her defamation action was timely. Warren v. Bank of Marion, 618 F. Supp. 317, 1985 U.S. Dist. LEXIS 15785 (W.D. Va. 1985).

    Transmission of contract file held not republication. —

    Where employee of company sent contract file with defamatory letter, employee’s transmission of contract file did not constitute republication since employee had no reason to know of defamatory contents of file and did nothing to draw particular attention to letter; since letter was republished at time it was first distributed to company, multiple copies within organization were considered part of aggregate communication, and aggregate communication was treated as single publication for which only one action for damages could have been maintained. Semida v. Rice, 863 F.2d 1156, 1988 U.S. App. LEXIS 17137 (4th Cir. 1988).

    Slander of title. —

    The fact that plaintiff instituted an action for slander of title approximately five and one-half years after the filing of defendants’ memorandum of lis pendens was not dispositive of her claim for slander of title, since her cause of action did not fully accrue and the limitations period did not begin to run until the defendants released their claim against her property. Since plaintiff filed her action within one year of this release, she was held not to be barred by application of Virginia’s statute of limitations for defamation actions (this section), much less its limitations period of injury to property (§ 8.01-243 ), the court finding it unnecessary to decide the issue of the applicable limitations period. Warren v. Bank of Marion, 618 F. Supp. 317, 1985 U.S. Dist. LEXIS 15785 (W.D. Va. 1985).

    Two-year statute of limitations, as applied to plaintiff’s slander of title claim arising out of the alleged wrongful foreclosure of her property, did not begin to run until defendant ceased to maintain a claim against the subject property. Yerion v. Branch Banking & Trust Co., 27 F. Supp. 3d 677, 2014 U.S. Dist. LEXIS 87345 (E.D. Va. 2014).

    Maritime claims. —

    When general maritime claims are at issue, the equity rule of laches, rather than any rigid statute of limitations, governs. Moore v. Exxon Transp. Co., 502 F. Supp. 583, 1980 U.S. Dist. LEXIS 9539 (E.D. Va. 1980).

    Unjust enrichment claims. —

    Workers’ compensation insurer’s cause of action for unjust enrichment, which accrued when the worker was arguably unjustly enriched (when the worker was in receipt of two monetary awards for the same injury), was governed by the two-year statute of limitations set for actions that did not otherwise have a limitation prescribed. Mich. Mut. Ins. Co. v. Smoot, 183 F. Supp. 2d 806, 2001 U.S. Dist. LEXIS 24839 (E.D. Va. 2001).

    The most appropriate limitation period for federal Education for All Handicapped Children Act (20 U.S.C. § 1400 et seq.) claims is the one-year period [now two-year period] of this section. Kirchgessner ex rel. Kirchgessner v. Davis, 632 F. Supp. 616, 1986 U.S. Dist. LEXIS 26840 (W.D. Va. 1986).

    Individuals with Disabilities Education Act. —

    The appropriate period of limitations for actions brought under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-85, is one year; the one-year statute of limitations was borrowed from this section, which provides the limitations period for all personal actions when a specific time frame is not provided by the statute creating the cause of action. Richards v. Fairfax County Sch. Bd., 798 F. Supp. 338, 1992 U.S. Dist. LEXIS 14169 (E.D. Va. 1992), aff'd, 7 F.3d 225, 1993 U.S. App. LEXIS 32451 (4th Cir. 1993).

    This section provides the appropriate limitation for judicial review actions brought under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1471 et seq., as well as administrative IDEA proceedings. Manning ex rel. Manning v. Fairfax School, 176 F.3d 235, 1999 U.S. App. LEXIS 8408 (4th Cir. 1999).

    There was simply no basis in the text of the Individuals with Disabilities Education Act (IDEA), specifically in 20 U.S.C.S. § 1415, for imposing a requirement that a county provide parents with notice of the two-year statute of limitations period in § 8.01-248 for requesting a due process hearing under the IDEA; therefore, a county was not required to give a child’s father notice of the limitations period, and the district court’s grant of summary judgment to the father, which held that the limitations period was equitably tolled by defendant county’s failure to provide notice of the limitations period to the father, was reversed and remanded, with instructions that it be dismissed. R. R. v. Fairfax County Sch. Bd., 338 F.3d 325, 2003 U.S. App. LEXIS 15016 (4th Cir. 2003).

    Fraud and constructive fraud. —

    The statute of limitations for fraud and constructive fraud is one year. LaVay Corp. v. Dominion Fed. Sav. & Loan Ass'n, 645 F. Supp. 612, 1986 U.S. Dist. LEXIS 19954 (E.D. Va. 1986), aff'd in part and rev'd in part, 830 F.2d 522, 1987 U.S. App. LEXIS 13005 (4th Cir. 1987).

    When action for fraud accrues. —

    A cause of action based on fraud accrues at the time when the fraud is discovered or by the exercise of due diligence ought to have been discovered. United States v. Daves, 72 Bankr. 943, 1987 Bankr. LEXIS 2310 (Bankr. E.D. Va. 1987).

    Where car dealer moved to dismiss car buyer’s Virginia Consumer Protection Act (VCPA) and common-law fraud claims, dealer unsuccessfully argued that claims were time-barred. Both VCPA and common-law fraud claims were subject to two-year statute of limitations, and either type of cause of action accrued when it was discovered or by the exercise of due diligence reasonably should have been discovered, which was essentially same requirement as federal discovery rule. Alexander v. Southeastern Wholesale Corp., 978 F. Supp. 2d 615, 2013 U.S. Dist. LEXIS 149693 (E.D. Va. 2013).

    Limitation period for oral contracts inapplicable to claim of fraud. —

    The duty to refrain from fraudulent acts is imposed by tort law, not by any contract between the parties. The character of fraud is not changed from tort to contract merely because the parties are also engaged in a contractual relationship. Thus, the three-year period of limitations applicable to actions on oral contracts does not apply to a claim of fraud predicated upon alleged misrepresentations by insurer’s agent that caused the insurer to include the wife’s car under the husband’s policy when the wife, not the husband, was the owner of the car. House v. Kirby, 233 Va. 197 , 355 S.E.2d 303, 3 Va. Law Rep. 2270, 1987 Va. LEXIS 184 (1987).

    Lender’s fraud. —

    Where plaintiff alleged that they were fraudulently induced to convey to lenders security interest in both corporate and individual assets, which they subsequently lost entirely through foreclosure and repossession, and where plaintiffs, suffered loss of all use, enjoyment and value in their property by reason of alleged fraud, allegedly wrongful acts were aimed at persons of plaintiffs, rather than injuring their property since property had same form, same value, and was adapted to same uses after defendants’ actions as before; therefore, statute of limitations for personal injury rather than injury to property was appropriate. J.F. Toner & Son, Inc. v. Staunton Prod. Credit Ass'n, 237 Va. 155 , 375 S.E.2d 530, 5 Va. Law Rep. 1518, 1989 Va. LEXIS 13 (1989).

    Virginia does not recognize adverse domination. Resolution Trust Corp. v. Everhart, 37 F.3d 151, 1994 U.S. App. LEXIS 28365 (4th Cir. 1994).

    Action for conversion against bank. —

    Five-year limitation period found in subsection B of § 8.01-243 applied to an action for conversion against a bank; two-year period in subsection A of § 8.01-243 was not applicable, nor was the one-year period found in this section. Bader v. Central Fid. Bank, 245 Va. 286 , 427 S.E.2d 184, 9 Va. Law Rep. 991, 1993 Va. LEXIS 24 (1993).

    Realtor’s fraud. —

    The fraud allegedly committed by the realtor had no impact on the real property itself. The purchasers’ land was in the same condition and was available for the same use after the alleged fraud as it was before. The defendants’ conduct was directed at the plaintiffs personally and not their property, real or personal. Consequently, the trial court correctly decided the one-year limitation governs an action for fraud. Pigott v. Moran, 231 Va. 76 , 341 S.E.2d 179, 1986 Va. LEXIS 166 (1986).

    Fraud is a tort. —

    The wrongful act is aimed at the person and, when sued upon at law, fraud will support a recovery for financial damage personal to the individual. Pigott v. Moran, 231 Va. 76 , 341 S.E.2d 179, 1986 Va. LEXIS 166 (1986).

    Actions for false advertising. —

    The two-year statute of limitations contained in this section, rather than the discovery rule for fraud contained in subdivision 1 of § 8.01-249 applies to claims of false advertising, because a false advertising claim is not analogous to a claim of fraud. A false advertising claim does not require a false representation of a present or pre-existing fact. Parker-Smith v. Sto Corp., 262 Va. 432 , 551 S.E.2d 615, 2001 Va. LEXIS 87 (2001).

    A cause of action for false advertising brought pursuant to §§ 59.1-68.3 and 18.2-216 is subject to the limitation period prescribed in this section rather than the limitation period and accrual date for fraud set forth in subsection A of § 8.01-243 and subdivision 1 of § 8.01-249 , respectively. McMillion v. Dryvit Sys., 262 Va. 463 , 552 S.E.2d 364, 2001 Va. LEXIS 110 (2001).

    Unlawful searches and seizures. —

    Under Virginia law, an unlawful search and seizure is characterized as a personal injury, not an injury to property; thus the applicable statute of limitations is two years under this section. Samuel v. Rose's Stores, Inc., 907 F. Supp. 159, 1995 U.S. Dist. LEXIS 19639 (E.D. Va. 1995).

    Actions for legal malpractice are governed by the limitations periods applicable to actions for breach of contract. Either the three- or five-year contract statute of limitations would apply based on a finding as to whether the alleged malpractice was governed by a written or oral contract. To the extent that attorney’s alleged wrongdoing stems from his actions as a director, the one-year statute will apply; to the extent the allegations stem from his service as savings and loan attorney, the applicable longer statutory period will apply. FDIC v. Cocke, 7 F.3d 396, 1993 U.S. App. LEXIS 26830 (4th Cir. 1993), cert. denied, 513 U.S. 807, 115 S. Ct. 53, 130 L. Ed. 2d 12, 1994 U.S. LEXIS 5412 (1994).

    Actions for wrongful discharge. —

    This section’s one year statute of limitations applies to actions for wrongful discharge. Guiden v. Southeastern Public Serv. Auth., 760 F. Supp. 1171, 1991 U.S. Dist. LEXIS 5226 (E.D. Va. 1991).

    The one-year statute of limitations under this section applied to plaintiff’s wrongful discharge claims, regardless of the fact that plaintiffs alleged that the wrongful discharge caused damages in the form of emotional and physical harm. Michael v. Sentara Health Sys., 939 F. Supp. 1220, 1996 U.S. Dist. LEXIS 14876 (E.D. Va. 1996).

    A common law cause of action for wrongful discharge is most analogous to an action under ERISA. In such a case an employee is claiming that her employer fired her wrongfully, either to prevent her from obtaining retirement benefits or in retaliation for the employee’s earlier exercise of her rights under a benefits agreement. Such a proceeding is almost identical to an action for wrongful discharge in violation of public policy, and therefore, the wrongful discharge claims in this case fell under the one year catch-all statute of limitations under this section, and not the five-year statute of limitations for contract claims. Sutter v. First Union Nat'l Bank, 932 F. Supp. 753, 1996 U.S. Dist. LEXIS 10985 (E.D. Va. 1996).

    Where plaintiffs questioned whether Virginia’s Conscience Clause (§ 18.2-75 ) imbued their claims with sufficient implied contractual obligations to warrant application of Virginia’s three-year contract limitation period set out in § 8.01-246 , to a wrongful discharge claim based on the Conscience Clause, the court recently rejected a similar argument, holding that wrongful discharge claims fall under Virginia’s catchall statute of limitations, this section. Michael v. Sentara Health Sys., 939 F. Supp. 1220, 1996 U.S. Dist. LEXIS 14876 (E.D. Va. 1996).

    Actions for constructive discharge. —

    Plaintiff argued that the constructive discharge fell within the relevant period in the tolling agreement, thereby making plaintiff’s filing timely. Virginia, though, does not recognize a cause of action for constructive wrongful discharge. Thus, the court granted defendants’ motion for summary judgment as to the plaintiff’s claims for constructive wrongful discharge. Michael v. Sentara Health Sys., 939 F. Supp. 1220, 1996 U.S. Dist. LEXIS 14876 (E.D. Va. 1996).

    Wrongful termination. —

    Where suit for wrongful termination was not a suit for a “positive, physical or mental hurt” and plaintiff advanced no other applicable limitation period, cause of action for wrongful termination was subject to the limitation period established in this section. Purcell v. Tidewater Constr. Corp., 250 Va. 93 , 458 S.E.2d 291, 1995 Va. LEXIS 86 (1995) (decision prior to 1995 amendment).

    While a wrongful discharge claim is not a perfect mirror for a WARN Act claim, the catchall nature of this section is particularly suited for “borrowing” because it explicitly operates as the default statute under Virginia law; thus where plaintiff filed his claim beyond the applicable one-year limitations period, dismissal was required. Luczkovich v. Melville Corp., 911 F. Supp. 208, 1996 U.S. Dist. LEXIS 808 (E.D. Va. 1996).

    Former employee’s state law claim of wrongful termination in violation of Virginia policy was time-barred because it was not filed within the applicable two-year limitations period. Baiden-Adams v. Forsythe Transp., Inc., 969 F. Supp. 2d 422, 2013 U.S. Dist. LEXIS 126483 (E.D. Va. 2013).

    Negligent hiring. —

    Plaintiff failed to file a timely claim for negligent hiring within the statute of limitations of § 8.01-248 because the complaint was filed over two years after the date she allegedly first suffered harassment at the hands of her manager in Virginia. Urda v. PetSmart, Inc., 854 F. Supp. 2d 359, 2012 U.S. Dist. LEXIS 50519 (E.D. Va. 2012).

    Adversary proceeding in bankruptcy. —

    Where the two-year statute of limitations under § 8.01-248 applied to the claims asserted in an adversary proceeding in a bankruptcy court, the bankruptcy court found that the extension granted to the trustee under 11 U.S.C.S. § 108(a) did not extend the statute of limitations. Further, the court concluded that the Virginia statute of limitations was not tolled, pursuant to § 8.01-229 , as to the debtor or his present trustee during the period that the debtor’s prior bankruptcy was pending and that the case was time-barred. Meiburger v. Ocwen Fed. Bank, FSB, 307 Bankr. 517, 2003 Bankr. LEXIS 1984 (Bankr. E.D. Va. 2003).

    RICO actions. —

    The four-year federal statute of limitations applicable to Clayton Act (15 U.S.C. § 15b) actions is the appropriate limitations period for civil RICO actions. The one-year “catch-all” limitations period in this section is inapplicable to civil RICO actions. HMK Corp. v. Walsey, 828 F.2d 1071, 1987 U.S. App. LEXIS 12363 (4th Cir. 1987), cert. denied, 484 U.S. 1009, 108 S. Ct. 706, 98 L. Ed. 2d 657, 1988 U.S. LEXIS 120 (1988).

    U.S. Supreme Court has held the four-year federal statute of limitations applicable to Clayton Act (15 U.S.C. § 15b) actions to be the appropriate limitations period. See Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 107 S. Ct. 2759, 97 L. Ed. 2d 121, 1987 U.S. LEXIS 2733 (1987).

    Federal labor action. —

    In action under § 301 of the Labor Management Relations Act (29 U.S.C. § 185) to vacate an arbitration award, the most closely analogous statute of limitation under Virginia law was former § 8.01-579 (see now § 8.01-581.010 ), rather than § 8.01-246 or this section. Local Union 8181, UMW v. Westmoreland Coal Co., 649 F. Supp. 603, 1986 U.S. Dist. LEXIS 16893 (W.D. Va. 1986).

    An action under section 921(d) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 921(d), was not governed by Virginia’s twenty year statute of limitations for the enforcement of judgments, § 8.01-251 , although plaintiffs argued that actions to enforce state workers’ compensation awards were subject to this limitation period. Rather, this section (Virginia’s catch-all or general statute of limitations), would be borrowed, and plaintiffs’ claims were barred. Kinder v. Coleman & Yates Coal Co., 974 F. Supp. 868, 1997 U.S. Dist. LEXIS 13618 (W.D. Va. 1997).

    Application to federal claim. —

    Statute of limitations applicable to a satellite television system operator’s federal claim against a cable television provider and its owner for unauthorized distribution of programming was the two-year limitations period borrowed from Virginia’s anti-piracy statute, which is parallel in form and substance to 47 U.S.C.S. § 605. Sky Cable, LLC v. Coley, No. 5:11cv00048, 2013 U.S. Dist. LEXIS 97129 (W.D. Va. July 11, 2013).

    Actions involving special education programs. —

    The one-year statute of limitations contained in this section applies to actions involving special education programs brought pursuant to subsection D of § 22.1-214, rather than the 30-day statute of limitations provided by the Virginia Administrative Process Act (former § 9-6.14:1 et seq. — see now § 2.2-4000 et seq.) and Supreme Court Rules 2A:2 and 2A:4. School Bd. v. Nicely, 12 Va. App. 1051, 408 S.E.2d 545, 8 Va. Law Rep. 367, 1991 Va. App. LEXIS 202 (1991).

    Refusal of school system to fund placement of handicapped child in out-of-state school. —

    For case applying the one-year statute of limitations of this section to parents’ action in federal district court pursuant to 20 U.S.C. § 1415 challenging school system’s refusal to fund handicapped child’s placement in a certain out-of-state residential school, rather than the shorter limitations of Supreme Court Rules 2A:2 and 2A:4 applicable under § 22.1-214, see Schimmel ex rel. Schimmel v. Spillane, 819 F.2d 477, 1987 U.S. App. LEXIS 6769 (4th Cir. 1987).

    Two-year limitations for breach of fiduciary duty claim. —

    Two-year limitations period under § 8.01-248 applied to a breach of fiduciary duty claim by a former co-owner of two corporations, the limitations period began to run when the co-owner sold his interests in the corporations in 2002, and thus, the limitations period expired in 2004, and the co-owner therefore was barred from bringing this claim in 2006. Williams v. Reynolds, No. 4:06CV00020, 2006 U.S. Dist. LEXIS 79178 (W.D. Va. Oct. 31, 2006).

    District court denied a real estate agent and real estate broker’s motion to dismiss a former property owner’s claims alleging that the agent and broker committed fraud, negligence, and breach of contract when the agent and broker sold the owner’s house in 2003 because additional discovery was required to determine if the claims were time-barred under §§ 8.01-230 , 8.01-243 , 8.01-248 , and 8.01-249 . However, the court dismissed the owner’s claim that the agent and broker committed a breach of fiduciary duty because the two-year statute of limitations which governed that claim, pursuant to § 8.01-248 , had expired. Rossmann v. Lazarus, No. 1:08cv316, 2008 U.S. Dist. LEXIS 68408 (E.D. Va. Sept. 3, 2008).

    Breach of fiduciary duty claims. —

    Just as a man who discovers his wallet missing need not know the pick-pocket’s stratagem to nevertheless know he has been robbed, a person who has been defrauded need only know that he was cheated; accordingly, the claims of fraud were time-barred. If that was true of the fraud claims, it was even more true of the breach of fiduciary duty claims, since the statute runs from the date of the breach, not its discovery. Hollman v. Weed, No. 09-13376-SSM, No. 09-1147-SSM, 2009 Bankr. LEXIS 3646 (Bankr. E.D. Va. Nov. 10, 2009).

    Breach of fiduciary duty by corporate officer is tort. —

    Under Virginia law, a suit alleging breach of fiduciary duty by a corporate officer is a tort, not a contract claim. C-T of Va., Inc. v. Barrett, 124 Bankr. 689, 1990 U.S. Dist. LEXIS 18484 (W.D. Va. 1990).

    Breach of fiduciary duty governed by one year statute of limitations. —

    Suits for breach of fiduciary duty and accompanying negligence are governed by Virginia’s one year catch-all statute of limitations. Kline v. Nationsbank, 886 F. Supp. 1285, 1995 U.S. Dist. LEXIS 6887 (E.D. Va. 1995).

    The one-year personal, not the five-year property, statute of limitations is most appropriate for a breach of fiduciary duty cause of action. FDIC v. Cocke, 7 F.3d 396, 1993 U.S. App. LEXIS 26830 (4th Cir. 1993), cert. denied, 513 U.S. 807, 115 S. Ct. 53, 130 L. Ed. 2d 12, 1994 U.S. LEXIS 5412 (1994).

    One year limitations period applied to the claims asserted by resolution trust corporation against numerous former officers and directors of savings bank including negligence, gross negligence, and breach of fiduciary duties in connection with seven transactions the savings bank entered into between 1981 and 1985. Resolution Trust Corp. v. Everhart, 837 F. Supp. 155, 1993 U.S. Dist. LEXIS 16452 (E.D. Va. 1993), aff'd, 37 F.3d 151, 1994 U.S. App. LEXIS 28365 (4th Cir. 1994).

    Virginia law was to apply to resolution trust corporation’s claims. —

    The fact that savings bank was a federally chartered institution does not alter the requirement that district court apply Virginia law to determine whether the claims of negligence, gross negligence, and breach of fiduciary duty asserted by resolution trust corporation against the officers and directors of the savings bank were barred by the statute of limitations, thus the savings bank’s argument that adverse domination tolled the statute of limitations was moot. Resolution Trust Corp. v. Everhart, 837 F. Supp. 155, 1993 U.S. Dist. LEXIS 16452 (E.D. Va. 1993), aff'd, 37 F.3d 151, 1994 U.S. App. LEXIS 28365 (4th Cir. 1994).

    Negligence on trustee’s part. —

    Where the true object of the litigation is the trustee and his alleged lack of care in administering assets of the debtor’s estate, not the damage to the facility and the land upon which it is located, the proper statute of limitation is contained in this section. Huennekens v. Walker, 165 Bankr. 815, 1994 Bankr. LEXIS 553 (Bankr. E.D. Va. 1994).

    The Resolution Trust Corporation (RTC) may not pursue claims that became time barred under applicable law prior to its appointment as receiver. Each of the RTC’s claims in the instant case are governed by Virginia’s one year statute of limitations applicable to claims for personal injury other than bodily injury. Resolution Trust Corp. v. Walde, 856 F. Supp. 281, 1994 U.S. Dist. LEXIS 7383 (E.D. Va. 1994).

    II.Decisions Under Prior Law.

    Editor’s note.

    Section does not apply to a suit to enforce a lien on land. —

    This section has no application to a suit which is purely an equitable one for the enforcement of a charge or lien upon land, and which could not be converted into a judgment in personam against anyone, because in express language the section is limited to every personal action for which no limitation is otherwise prescribed. Gilley v. Nidermaier, 176 Va. 32 , 10 S.E.2d 484, 1940 Va. LEXIS 231 (1940).

    There has been a split of opinion as to which limitations period applies in fraud actions. Maine v. Leonard, 353 F. Supp. 968, 1973 U.S. Dist. LEXIS 15560 (W.D. Va. 1973).

    Limitation of local “blue sky” statutes applied to federal actions involving fraud. —

    See Maine v. Leonard, 353 F. Supp. 968, 1973 U.S. Dist. LEXIS 15560 (W.D. Va. 1973).

    When cause of action for fraud accrues. —

    In Virginia a cause of action of which the gravamen of same is fraud shall be deemed to accrue, both at law and equity, at the time such fraud is discovered, or by the exercise of due diligence ought to have been discovered. Stevens v. Abbott, Proctor & Paine, 288 F. Supp. 836, 1968 U.S. Dist. LEXIS 12133 (E.D. Va. 1968).

    Malicious prosecution and conspiracy distinguished. —

    Malicious prosecution involves wrongful conduct directed at a person which may indirectly damage property. The statutory action for conspiracy under §§ 18.2-499 and 18.2-500 , on the other hand, focuses upon conduct directed at property, i.e., one’s business. Accordingly, the nature of the two actions differ so that the one-year limitation applies to the former and the five-year period to the latter. Federated Graphics Cos. v. Napotnik, 424 F. Supp. 291, 1976 U.S. Dist. LEXIS 12285 (E.D. Va. 1976).

    Section not applicable to action for breach by depository of terms of escrow agreement. —

    Where, in a suit to recover a sum which the plaintiffs allegedly lost as a result of the defendant attorney’s breach of duty in closing real estate transaction, allegations of the complaint clearly set forth the existence of an escrow arrangement involving the plaintiffs as grantors, defendants as compensated depositories, and a certain company as grantee, in an escrow arrangement, the parties occupy a principal-agent relationship, a relationship which is essentially contractual in nature, and since a breach by a depository of the terms of an escrow arrangement gives rise to a cause of action contractual in nature, plaintiff’s case was governed by the three-year period of limitation applicable to causes of action for contracts not in writing, contained in § 8.01-246 , rather than the one-year limitation for personal causes of action provided by this section. Winslow, Inc. v. Scaife, 219 Va. 997 , 254 S.E.2d 58, 1979 Va. LEXIS 199 (1979).

    CIRCUIT COURT OPINIONS

    Applicability. —

    Tortious interference with a contract, conspiracy to tortiously interfere with a contract, and conspiracy to breach a contract are governed by the statute of limitations in this section, because the alleged injury is personal in nature. Almy v. Grisham, 55 Va. Cir. 401, 2001 Va. Cir. LEXIS 305 (Albemarle County July 20, 2001).

    All allegations involving breach of fiduciary duty or fraud were barred by § 8.01-248 where a wronged investor sued outside the statute of limitations. Pathek v. Trivedi, 61 Va. Cir. 572, 2003 Va. Cir. LEXIS 39 (Chesterfield County Jan. 9, 2003).

    Tolling of statute. —

    Trial court denied the escrow agent’s plea in bar regarding the seller’s lawsuit alleging that the escrow agent breached a fiduciary duty owed to the seller by not informing the seller for several weeks that two deposit checks given to the escrow agent as part of a real estate transaction were no good; the seller had not waived the protection of the Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C.S. app. § 526(a), by filing his lawsuit against the wrong defendant as the escrow agent conceded that the seller was a servicemember and did not show that any waiver provision of that law applied once the seller established that he was a servicemember. Sedler v. Select Props., Inc., 67 Va. Cir. 515, 2004 Va. Cir. LEXIS 361 (Loudoun County June 18, 2004).

    False advertising. —

    Count asserting that defendants violated Virginia’s False Advertising Statute, § 18.2-216 , was barred by the statute of limitations of § 8.01-248 because more than two years had passed between the accrual of the cause of action and the filing of the motion for judgment. Fix v. Eakin/Youngtob Assocs., 61 Va. Cir. 604, 2002 Va. Cir. LEXIS 95 (Alexandria Feb. 15, 2002).

    Right of action accrued and the two-year limitation period began to run, for claims to recover damages for deceptive advertising, at the time that the home buyers went to settlement on the home buyers’ home, and the home buyers’ false advertising claims were therefore time barred; suits predicated upon claims of false advertising accrued at the time of publication of the prohibited material with the purpose of inducing the public to enter into an obligation, and the fact that the extent of the damages may not have been discovered or calculable until a later date was not determinative of the date of accrual. Glass v. Trafalgar House Prop., Inc., 58 Va. Cir. 437, 2002 Va. Cir. LEXIS 160 (Loudoun County Apr. 15, 2002).

    Limited liability company’s plea in bar to buyers’ false advertising claim was overruled because the § 8.01-248 two-year statute of limitations began to run on date the home sale went to settlement rather than the contract date, and the suit was thus timely; the buyers did not suffer a loss until they purchased the home, and the purchase was not complete until settlement. Brown v. Labelle, 84 Va. Cir. 258, 2012 Va. Cir. LEXIS 23 (Fairfax County Feb. 2, 2012).

    Tortious interference claim. —

    Restaurant operator timely filed its tortious interference with business claim against the development company and associate for their alleged role in preventing live entertainment from being presented in the restaurant, cutting into the restaurant’s profits. Section 8.01-258 provided a two-year “catch-all” limitations provision for actions such as tortious interference with business that were not addressed by other limitations provisions and since it was possible that the relevant breach had not occurred until after the time passed for sound-reducing material to be installed, which pursuant to § 8.01-230 accrued less than two years before the tortious interference claim was filed, the restaurant operator’s tortious interference claim was not time barred. Station # 2, LLC v. Lynch, 75 Va. Cir. 179, 2008 Va. Cir. LEXIS 52 (Norfolk Apr. 30, 2008).

    Tortious interference with contract claim by a police officer was time-barred under § 8.01-248 where the alleged wrongful conduct that was the basis for the claim occurred more than two years before the complaint was filed. Hueston v. Kizer, 2008 Va. Cir. LEXIS 280 (Hanover County May 29, 2008).

    Police officer’s tortious interference with contract claim against three police captains, a states attorney, and others, based on his termination and other events following his investigation of certain government officials was time-barred under the applicable two year limitations period because the suit was filed more than two years after he was terminated, which was when his cause of action accrued. Hueston v. Kizer, 2009 Va. Cir. LEXIS 142 (Hanover County Nov. 5, 2009).

    Slander of title. —

    Because slander of title was a form of interference with economic relations, because the only change to a wife’s property that resulted from two allegedly forged deeds of trust being recorded against it was the equity she held in the property, because the injury occurred when the deeds of trust were recorded, and because the fact that the deeds of trust remained in the county land records was merely the continuing effect of a single act, the wife’s slander of title action was barred by the two-year statute of limitations in § 8.01-248 . Koz v. Wells Fargo Home Mortg., 83 Va. Cir. 96, 2011 Va. Cir. LEXIS 113 (Fairfax County Aug. 4, 2011).

    Fraud claims. —

    Allegations that the trustees failed to make their capital contributions did not support an independent tort action of fraud, and the fraud claim was barred by the two-year statute of limitation under § 8.01-248 where the investor failed to exercise due diligence. Pathak v. Trivedi, 61 Va. Cir. 572, 2001 Va. Cir. LEXIS 505 (Chesterfield County Apr. 6, 2001).

    Plaintiffs’ claim that defendant violated § 18.2-216 was time-barred under § 8.01-248 , as plaintiffs “suffered loss” not when they discovered damages allegedly caused by defendant’s defective insulation product, but either when that product was chosen by the builders or installed by the subcontractor, as plaintiffs did not receive the quality product and construction contemplated by the contractual relationship with the builder and subcontractor. Lesner Pointe Condo. Ass'n v. Harbour Point Bldg. Corp., 61 Va. Cir. 609, 2002 Va. Cir. LEXIS 424 (Virginia Beach Apr. 10, 2002).

    Where the statute of limitations for unjust enrichment was two years under § 8.01-248 all acts included that occurred prior to September 7, 1998, were barred as outside the time limit. Pathek v. Trivedi, 61 Va. Cir. 572, 2003 Va. Cir. LEXIS 39 (Chesterfield County Jan. 9, 2003).

    Discovery of fraud. —

    Shareholder’s fraud and breach of fiduciary duty claims against a corporation and stockholders was time-barred because, based on a memorandum sent by the shareholder and his retention of a law firm, it was found that he discovered the facts forming the basis of his claims more than two years before the suit was filed; however, those admissions did not necessarily bar the other shareholders from their claims of fraud and breach of fiduciary duty. Conceivably, there may have been some reason why the other shareholders were unable to discover any harm until after two years before the suit was filed. Parsch v. Massey, 72 Va. Cir. 121, 2006 Va. Cir. LEXIS 304 (Charlottesville Oct. 4, 2006).

    Breach of contract claim. —

    Breach of contract claim was barred by the statute of limitations under § 8.01-230 , as the action was filed well after three years had passed; therefore, a party’s special plea of the statute of limitations was sustained. Bd. of Dirs. of Birdneck Villas Condo. Ass'n v. Birdneck Villas, LLC, 73 Va. Cir. 175, 2007 Va. Cir. LEXIS 77 (Virginia Beach Apr. 2, 2007).

    Breach of fiduciary duty and tortious interference. —

    Lessee’s breach of fiduciary duty and tortious interference with business claims against the building owners were not barred by § 8.01-248 where the latest date on which one building owner could have refused to allow the lessee to install sound attenuation was when he participated in a court hearing to prevent live music at the lessee’s restaurant, which was within the limitations period. Station # 2, LLC v. Lynch, 75 Va. Cir. 179, 2008 Va. Cir. LEXIS 51 (Norfolk Apr. 30, 2008).

    Breach of fiduciary duty. —

    While a resolution was not an amendment to the condominium instruments, the statutes of limitations in subsection C of § 55-79.71 and § 8.01-248 had run as to any challenge by a homeowner as to the validity of the actual amendment, whether in a claim for damages or for declaratory relief. Godwin v. Bay Point Ass'n Bd. of Dirs., 82 Va. Cir. 215, 2011 Va. Cir. LEXIS 165 (Norfolk Feb. 8, 2011).

    Breach of fiduciary duty claim was time-barred because it was not filed with the two year statute of limitations; the alleged misconduct leading to the breach of duty took place before a swap agreement was signed in January 2006, and the claim was not filed until 2012. Sun Hotel v. Summitbridge Credit Invs. III, LLC, 86 Va. Cir. 189, 2013 Va. Cir. LEXIS 4 (Fairfax County Jan. 23, 2013).

    Injury to reputation. —

    Police officer’s statutory claim against three police captains, a states attorney, and others, of a conspiracy to injure his reputation, which was based on his termination and other events following his investigation of certain government officials, was time-barred under subsection A of § 8.01-243 because the alleged injurious actions occurred more than two years before the officer filed suit. Hueston v. Kizer, 2009 Va. Cir. LEXIS 142 (Hanover County Nov. 5, 2009).

    Claim was time-barred. —

    Plaintiff’s conspiracy claim was time-barred as: (1) plaintiff asserted a claim for trebled money damages, so he did not seek purely equitable remedies, (2) a claim for conspiracy under §§ 18.2-499 and 18.2-500 was a legal cause of action, whether the claim was brought on the law or chancery side, (3) the basis of the claim was fraud and fraud was a wrongful act aimed at the person, (4) as fraud invariably acted upon the person of the victim, its consequence was personal damage, and (5) the conspiracy claim was therefore time-barred whether subsection A of § 8.01-243 , which applied to fraud claims, or § 8.01-248 , which applied to personal actions for which no other limitation was specified, was relied on. Orantes v. Pollo Ranchero, Inc., 70 Va. Cir. 277, 2006 Va. Cir. LEXIS 52 (Fairfax County Mar. 9, 2006).

    Because an executive brought a federal court action for malicious prosecution to a state court without asserting that the original claim was nonsuited for lack of jurisdiction, improper venue, or other good cause under § 8.01-380 , the case did not fall within the tolling provisions of subdivision E 3 § 8.01-229 ; thus, the case was dismissed as time-barred under § 8.01-248 . Smith v. Sparshott, 2006 Va. Cir. LEXIS 133 (Fairfax County July 18, 2006).

    Amended complaint not barred by statute of limitations. —

    Court found that: (1) the amended complaint alleged the same set of operative facts, including a claimed struggle, that gave rise to the differing rights of action for wrongful death and civil conspiracy asserted; (2) the transaction or occurrence of a possible struggle was asserted in the 2005 motion for judgment, and it was the greater specificity of facts gained from subsequent discovery that allowed the administrator to assert a wrongful death claim based on the alleged assault, and thus, the administrator was reasonably diligent in determining what claims she might have and asserting the additional claim upon more information; and (3) although the alleged co-conspirator contended that the possibility of insurance coverage constituted actual, substantial prejudice, the court was not convinced that the timeliness of the amended motion for judgment substantially prejudiced the alleged co-conspirator; therefore, the administrator satisfied all of the requirements of § 8.01-6.1 , amending her complaint such that the rights of action filed on November 16, 2007, related back to the cause of action she initially asserted in her 2005 motion for judgment. Thus, the administrator properly recommenced her suit within the six-month period after nonsuiting the action and the administrator’s recovery was not barred by the two-year statute of limitations under §§ 8.01-244 and 8.01-248 . Clark v. Britt, 79 Va. Cir. 60, 2009 Va. Cir. LEXIS 72 (Fairfax County Apr. 24, 2009).

    § 8.01-249. When cause of action shall be deemed to accrue in certain personal actions.

    The cause of action in the actions herein listed shall be deemed to accrue as follows:

    1. In actions for fraud or mistake, in actions for violations of the Consumer Protection Act (§ 59.1-196 et seq.) based upon any misrepresentation, deception, or fraud, and in actions for rescission of contract for undue influence, when such fraud, mistake, misrepresentation, deception, or undue influence is discovered or by the exercise of due diligence reasonably should have been discovered;
    2. In actions or other proceedings for money on deposit with a bank or any person or corporation doing a banking business, when a request in writing be made therefor by check, order, or otherwise;
    3. In actions for malicious prosecution or abuse of process, when the relevant criminal or civil action is terminated;
    4. In actions for injury to the person resulting from exposure to asbestos or products containing asbestos, when a diagnosis of asbestosis, interstitial fibrosis, mesothelioma, or other disabling asbestos-related injury or disease is first communicated to the person or his agent by a physician. However, no such action may be brought more than two years after the death of such person. The diagnosis of a nonmalignant asbestos-related injury or disease shall not accrue an action based upon the subsequent diagnosis of a malignant asbestos-related injury or disease, and such subsequent diagnosis shall constitute a separate injury that shall accrue an action when such diagnosis is first communicated to the person or his agent by a physician;
    5. In actions for contribution or for indemnification, when the contributee or the indemnitee has paid or discharged the obligation. A third-party claim permitted by subsection A of § 8.01-281 and the Rules of Court may be asserted before such cause of action is deemed to accrue hereunder;
    6. In actions for injury to the person, whatever the theory of recovery, resulting from sexual abuse occurring during the infancy or incapacity of the person, upon the later of the removal of the disability of infancy or incapacity as provided in § 8.01-229 or when the fact of the injury and its causal connection to the sexual abuse is first communicated to the person by a licensed physician, psychologist, or clinical psychologist. As used in this subdivision, “sexual abuse” means sexual abuse as defined in subdivision 6 of § 18.2-67.10 and acts constituting rape, sodomy, object sexual penetration or sexual battery as defined in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2;
    7. In products liability actions against parties other than health care providers as defined in § 8.01-581.1 for injury to the person resulting from or arising as a result of the implantation of any prosthetic device for breast augmentation or reconstruction, when the fact of the injury and its causal connection to the implantation is first communicated to the person by a physician;
    8. In actions on an open account, from the later of the last payment or last charge for goods or services rendered on the account;
    9. In products liability actions against parties other than health care providers as defined in § 8.01-581.1 for injury to the person resulting from or arising as a result of the implantation of any medical device, when the person knew or should have known of the injury and its causal connection to the device.

    4a. In actions for injury to the person resulting from the exposure to a substance or a combination of substances or the use of a product, when such injury is latent, other than (i) those asbestos-related injuries specified in subdivision 4 and (ii) claims against health care providers as defined in § 8.01-581.1 , when the person knew or should have known of the injury and its causal connection to an injury-causing substance or product. However, no such action may be brought more than two years after the death of such person. For purposes of this subdivision, “latent” refers to injuries that remain dormant or do not develop and, therefore, are undiagnosable during the period of limitations set forth in subsection A of § 8.01-243 ;

    History. Code 1950, §§ 8-13, 8-14; 1964, c. 219; 1966, c. 118; 1977, c. 617; 1985, c. 459; 1986, c. 601; 1991, c. 674; 1992, c. 817; 1993, c. 523; 1995, c. 268; 1997, cc. 565, 801; 2005, c. 213; 2013, c. 292; 2016, c. 353; 2020, cc. 99, 180; 2021, Sp. Sess. I, c. 195.

    REVISERS’ NOTE

    Section 8.01-249 provides that certain causes of action should not accrue for the purpose of applying statutes of limitation until the damage or injury is discoverable by the plaintiff. While this represents an exception to the general rule embodied in § 8.01-230 that a cause of action shall be deemed to accrue when the wrong occurs or when the technical breach of contract duty occurs, § 8.01-249 follows Virginia law.

    Subsection 1 incorporates former § 8-14 which tolled the statute of limitations in cases of fraud or mistake in the payment of money. The subsection extends the principle to all situations of fraud, mistake or undue influence.

    Subsection 2 is an incorporation without substantive change of a proviso from former § 8-13 regarding the necessity for demand in actions for money on deposit before a cause of action shall be deemed to accrue.

    Subsection 3 recognizes the common-law action for malicious prosecution, or abuse of process and provides that the statute of limitations, § 8.01-248 , does not begin to run until the determination of the associated criminal or civil action (in favor of the defendant who is the plaintiff in the civil action).

    Cross references.

    For provisions concerning change of venue, with exception for actions arising under subdivision 4 of this section, see § 8.01-265 .

    Editor’s note.

    Acts 1991, c. 674, which enacted subdivision 6 of this section, in cl. 2 stated: “That the provisions of subdivision 6 of § 8.01-249 shall apply to all actions filed on or after July 1, 1991, without regard to when the act upon which the claim is based occurred provided that no such claim which accrued prior to July 1, 1991, shall be barred by application of those provisions if it is filed within one year of the effective date of this act.”

    Acts 1992, c. 817, which enacted subdivision 7 of this section, in cl. 2 provides: “That the provisions of subdivision 7 of § 8.01-249 shall apply to all actions filed on or after July 1, 1992, without regard to when the act upon which the claim is based occurred.”

    Acts 1996, c. 377, cl. 1, provides: “That as authorized by Section 14 of Article IV of the Constitution of Virginia, Chapter 268 of the 1995 Acts of Assembly [which amended this section] shall apply to all actions accruing on or after July 1, 1991, for injury to the person resulting from sexual abuse occurring during the infancy or incompetency of the person and which were or are filed on or after July 1, 1995.”

    Acts 1997, c. 801, cl. 2, provides: “That the provisions of this act shall become effective on January 1, 1998. The powers granted and duties imposed pursuant to this act shall apply prospectively to guardians and conservators appointed by court order entered on or after that date, or modified on or after that date if the court so directs, without regard to when the petition was filed. The procedures specified in this act governing proceedings for appointment of a guardian or conservator or termination or other modification of a guardianship shall apply on and after that date without regard to when the petition therefor was filed or the guardianship or conservatorship created.”

    Acts 1997, c. 565, cl. 2, provides: “That the provisions of this act [which amended this section] are declaratory of existing law.”

    Acts 2020, cc. 99 and 180, cl. 2 provides: “This act is intended to reverse Kiser v. A.W. Chesterton, 285 Va. 12 (2013).” See annotations under this section.

    The 2005 amendments.

    The 2005 amendment by c. 213, in subdivision 1, inserted “in actions for violations of the Consumer Protection Act (§ 59.1-196 et seq.) based upon any misrepresentation, deception, or fraud” near the beginning of the sentence and inserted “misrepresentation, deception” following “fraud, mistake.”

    The 2013 amendments.

    The 2013 amendment by c. 292, in subdivision 6, inserted “the later of the,” and deleted “if the fact of the injury and its causal connection to the sexual abuse is not then known” following “in § 8.01-229 or” in the first sentence.

    The 2016 amendments.

    The 2016 amendment by c. 353 added subdivision 9.

    The 2020 amendments.

    The 2020 amendments by cc. 99 and 180 are identical, and added the third sentence in subdivision 4.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 195, effective July 1, 2021, added subdivision 4a.

    Law Review.

    For article on Virginia’s continuing negligent treatment rule, see 15 U. Rich. L. Rev. 231 (1981).

    For article, “Civil Rights and ‘Personal Injuries’: Virginia’s Statute of Limitations for Section 1983 Suits,” see 26 Wm. & Mary L. Rev. 199 (1985).

    For note, “Admiralty Jurisdiction in Asbestos Litigation: The Fourth Circuit Draws the Line,” see 43 Wash. & Lee L. Rev. 454 (1986).

    For comment, “Recovering Asbestos Abatement Cost,” see 10 G.M.U. L. Rev. 451 (1988).

    For 1991 survey on legal issues involving children, see 25 U. Rich. L. Rev. 773 (1991).

    For article, “Redressing Wrongs of the Blamelessly Ignorant Survivor of Incest,” see 26 U. Rich. L. Rev. 1 (1991).

    For an article on federal product liability reform legislation’s consistency with Virginia law, see 4 Geo. Mason L. Rev. 279 (1996).

    For annual survey commentary, “Accrual of Causes of Action in Virginia,” see 41 U. Rich. L. Rev. 15 (2006).

    For Survey article, “Civil Practice and Procedure,” see 48 U. Rich. L. Rev. 1 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Automobiles, § 78.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Virginia’s statute of limitations for fraud most closely resembles the federal policies reflected in the Lanham Act (15 U.S.C. § 1125) of prohibiting fraudulent advertising and addressing claims of deception and misrepresentation, constituting trademark infringement and unfair competition. Unlimited Screw Prods., Inc. v. Malm, 781 F. Supp. 1121, 1991 U.S. Dist. LEXIS 19023 (E.D. Va. 1991).

    Discovery rule in fraud cases. —

    Generally, actions in Virginia do not accrue when the resulting damage is discovered but there is an exception for actions for fraud; a claim for fraud accrues when the fraud is or should have been discovered in the exercise of due diligence. Al-Abood v. El-Shamari, 217 F.3d 225, 2000 U.S. App. LEXIS 15437 (4th Cir. 2000).

    Claim against a mortgagee for fraud in servicing a homeowner’s mortgage was untimely, since the claim accrued when the mortgagee informed the homeowner of mistakes in handling the homeowner’s accounts, regardless of any further investigation by the homeowner. Rossmann v. Lazarus, No. 1:08cv316, 2009 U.S. Dist. LEXIS 1741 (E.D. Va. Jan. 9, 2009).

    Because the accrual of a fraud claim was governed by § 8.01-249 and the limitation period began when the fraud was, or reasonably should have been, discovered, and because there was a genuine issue of material fact as to the date on which the alleged fraud was discovered by plaintiff drug purchaser, summary judgment was precluded. Under the facts of the case, the fraud would have been discovered or reasonably should have been discovered no later than the date on which the risks of the drug were discovered or reasonably should have been discovered; plaintiff asserted that was when a major study revealed that the drug’s use could have increased the risk of breast cancer, but defendant pharmaceutical company countered that the label sufficiently apprised plaintiff of the risks of the drug. Torkie-Tork v. Wyeth, 739 F. Supp. 2d 887, 2010 U.S. Dist. LEXIS 60630 (E.D. Va. 2010).

    Where car dealer moved to dismiss car buyer’s Virginia Consumer Protection Act (VCPA) and common-law fraud claims, dealer unsuccessfully argued that claims were time-barred. Both VCPA and common-law fraud claims were subject to two-year statute of limitations, and either type of cause of action accrued when it was discovered or by the exercise of due diligence reasonably should have been discovered, which was essentially same requirement as federal discovery rule. Alexander v. Southeastern Wholesale Corp., 978 F. Supp. 2d 615, 2013 U.S. Dist. LEXIS 149693 (E.D. Va. 2013).

    Only slightest injury required to start running of limitations period. —

    In Virginia, only the slightest injury is required to start the running of the limitations period. International Surplus Lines Ins. Co. v. Marsh & McLennan, Inc., 838 F.2d 124, 1988 U.S. App. LEXIS 1160 (4th Cir. 1988).

    A cause of action can accrue before a malignant tumor manifests itself by symptoms since it is the onset of the disease itself that triggers the running of the limitation period. Lo v. Burke, 249 Va. 311 , 455 S.E.2d 9, 1995 Va. LEXIS 22 (1995).

    Meaning of phrase. —

    The language “by the exercise of due diligence reasonably should have been discovered,” as used in this section, means such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances, not measured by any absolute standard, but depending on the relative facts of the special case. STB Mktg. Corp. v. Zolfaghari, 240 Va. 140 , 393 S.E.2d 394, 6 Va. Law Rep. 2672, 1990 Va. LEXIS 103 (1990).

    Subdivision 6 deals with claims of only the victim of the abuse, not with derivative claims. Mahony v. Becker, 246 Va. 209 , 435 S.E.2d 139, 10 Va. Law Rep. 241, 1993 Va. LEXIS 119 (1993).

    Where injury was incurred and damages began to accrue before plaintiff discovered alleged breach, plaintiff’s cause of action was complete upon discovery of the existence of the breach. Therefore, the breach of fiduciary duty claim was barred by the tort statute of limitations. This result was consistent with the Virginia statute of limitations scheme, which focuses on when a plaintiff should act, by starting the running of the statute on discovery of the breach. International Surplus Lines Ins. Co. v. Marsh & McLennan, Inc., 838 F.2d 124, 1988 U.S. App. LEXIS 1160 (4th Cir. 1988).

    Issues of when a fraud should reasonably have been discovered are typically best left to the jury, as with most issues of reasonableness. Pennsylvania Life Ins. Co. v. Bumbrey, 665 F. Supp. 1190, 1987 U.S. Dist. LEXIS 7173 (E.D. Va. 1987), aff'd in part, 872 F.2d 419, 1989 U.S. App. LEXIS 3151 (4th Cir. 1989).

    In a suit filed by two homeowners alleging fraud and negligent misrepresentation due to the builder’s claims that the EIFS applied to the home was not the type of stucco that had caused problems in North Carolina and that they would not have the performance problems experienced there, a newspaper article did not, as a matter of law, put the homeowners on actual or implied notice that the builder’s representations were false as reasonable persons could disagree over the knowledge imparted, or implied, to the homeowners by the newspaper article, and the issue of whether the homeowners were put on notice and were required to act with due diligence after reading the article was for the trier of fact. Hansen v. Stanley Martin Cos., 266 Va. 345 , 585 S.E.2d 567, 2003 Va. LEXIS 80 (2003).

    The determination as to due diligence is a factual one; a two year delay (between 1986 and 1988) in discovering a nearly $200,000 billing error does not constitute due diligence. Liberty Mut. v. Williams Int'l Indus., Inc., 780 F. Supp. 359, 1991 U.S. Dist. LEXIS 17965 (E.D. Va. 1991).

    Factual issue as to due diligence. —

    Because the question of whether a patentee exercised due diligence in discovering a computer manufacturer’s alleged misrepresentation regarding its plan to enter into a contract to purchase the patentee’s product depended upon the facts of the case, it would have been premature to grant the manufacturer’s motion to dismiss the patentee’s intentional misrepresentation claim based on the two-year limitations period established under § 8.01-243 and subdivision 1 of § 8.01-249 . GIV, LLC v. IBM, No. 3:07CV067-HEH, 2007 U.S. Dist. LEXIS 30168 (E.D. Va. Apr. 24, 2007).

    Property owner’s claim that owner’s partner fraudulently induced owner to sign second agreement after signing first agreement was not barred by statute of limitations at summary judgment because jury had to determine when owner, through exercise of due diligence, should have discovered material changes to second agreement to know when cause of action accrued pursuant to this statute. Whalen v. Rutherford, No. 3:12CV00032, 2013 U.S. Dist. LEXIS 87877 (W.D. Va. June 21, 2013).

    Factual issue as to time of accrual. —

    In a contract dispute between an equipment lessor and a lessee, dismissal of the lessee’s fraud counterclaim was not warranted, because, inter alia, a factual issue regarding the time of accrual existed as to whether the statute of limitations barred the fraud claim. Xerox Corp. v. Global Printing, Inc., No. 1:05cv884, 2005 U.S. Dist. LEXIS 25624 (E.D. Va. Oct. 25, 2005).

    Termination of agreement triggers plaintiff’s due diligence. —

    Termination by a brewery of an agreement between itself and a beer distributor, and the brewery’s appointment of another entity, triggered the distributor’s responsibility to perform due diligence to determine if the brewery was in compliance with the Beer Franchise Act good faith requirement or whether the brewery was acting fraudulently. Va. Imps., Inc. v. Kirin Brewery of Am., LLC, 296 F. Supp. 2d 691, 2003 U.S. Dist. LEXIS 22343 (E.D. Va. 2003).

    Due diligence found. —

    While a customer was displeased with the work of an automobile modification business from the time the customer received the automobile, the customer’s claims were timely asserted under subdivision 1 of § 8.01-249 after the customer discovered that the engine was replaced with a defective engine rather than simply modified; the customer had no reason to suspect that the engine was replaced, and the customer was diligent and continued to have the car inspected by other mechanics. Peter Farrell Supercars, Inc. v. Monsen, 82 Fed. Appx. 293, 2003 U.S. App. LEXIS 24338 (4th Cir. 2003), cert. denied, 541 U.S. 1064, 124 S. Ct. 2399, 158 L. Ed. 2d 965, 2004 U.S. LEXIS 3719 (2004).

    Due diligence not found. —

    Borrower who brought claims against a finance company did not exercise due diligence under subdivision 1 of § 8.01-249 to delay the accrual of the borrower’s claims because the borrower stated no facts demonstrating that, despite the exercise of due diligence, the borrower could not have discovered the alleged fraud any sooner as the borrower alleged that: (1) the borrower executed the loan documents to refinance a home mortgage by meeting employees of the finance company in a restaurant rather than at the offices of the finance company; (2) the borrower was advised that the notary public, who failed to appear, would execute the documents later; and (3) the borrower never received a copy of the loan documents although the finance company’s employees told the borrower that copies would be sent to the borrower. Based on these facts, a reasonable and prudent person would have suspected that something was amiss with regard to the mortgage loan, but the borrower apparently made no follow-up inquiries about the mortgage loan. Schmidt v. Household Fin. Corp., II, 276 Va. 108 , 661 S.E.2d 834, 2008 Va. LEXIS 75 (2008).

    It was true that the filing of the chapter 11 petition would have tolled the running of the statute if it had not already expired, but even when debtor’s petition was filed on April 4, 2009, some two years and seven months had passed since debtor, in the exercise of reasonable diligence, should reasonably have known that he was receiving only monthly payments. The fact that his attorney may not have known until much more recently the specific details of what happened to the sales proceeds, some of which appeared to have been funneled to another business owned by defendant, was not sufficient to postpone the running of the statute of limitations. Hollman v. Weed, No. 09-13376-SSM, No. 09-1147-SSM, 2009 Bankr. LEXIS 3646 (Bankr. E.D. Va. Nov. 10, 2009).

    Trademark infringement. —

    Under trademark law, a cause of action is complete and the statute of limitations begins to run when, on all the facts and circumstances, a plaintiff concludes or should conclude that a likelihood of confusion is present, not merely when a confusingly similar use is uncovered. The plaintiff has no obligation to sue until the likelihood of confusion looms large. Teaching Co. Ltd. Partnership v. Unapix Entertainment, Inc., 87 F. Supp. 2d 567, 2000 U.S. Dist. LEXIS 3051 (E.D. Va. 2000).

    False advertising. —

    A cause of action for false advertising brought pursuant to §§ 59.1-68.3 and 18.2-216 is subject to the limitation period prescribed in § 8.01-248 rather than the limitation period and accrual date for fraud set forth in subsection A of § 8.01-243 and subdivision 1 of § 8.01-249 , respectively. McMillion v. Dryvit Sys., 262 Va. 463 , 552 S.E.2d 364, 2001 Va. LEXIS 110 (2001).

    Recordation of fraudulent documents, an examination of which would have led a reasonably prudent person to conclude that first deed of trust was paid in full and second deed of trust partially satisfied by proceeds from the foreclosure sale, was not in and of itself sufficient to impute notice of the fraud to judgment creditor; where creditor did not have any reason to believe that conveyance of second deed of trust and distribution of foreclosure proceeds were fraudulent until it discovered additional information when it interrogated debtor, under these facts and circumstances, creditor exercised due diligence, and its cause of action for fraud did not accrue until that date. STB Mktg. Corp. v. Zolfaghari, 240 Va. 140 , 393 S.E.2d 394, 6 Va. Law Rep. 2672, 1990 Va. LEXIS 103 (1990).

    Indemnification/contribution action. —

    Section 8.01-281 authorizes a party in a pending action to file a third-party motion for judgment (complaint) seeking indemnification or contribution. Rule 3:10(a) [see now Rule 3:13(a)] establishes the procedure for filing such a claim. When a claim for indemnity or contribution is filed as a separate cause of action, it does not accrue until the person seeking the relief has paid more than his or her share of the obligation. Virginia Int'l Terms., Inc. v. Ceres Marine Terms., Inc., 879 F. Supp. 31, 1995 U.S. Dist. LEXIS 2428 (E.D. Va. 1995).

    Third-party plaintiff contractor’s right of action for indemnification did not accrue until the monetary obligations to the underlying plaintiffs were fulfilled. Kohl's Dep't Stores, Inc. v. Target Stores, Inc., 290 F. Supp. 2d 674, 2003 U.S. Dist. LEXIS 20274 (E.D. Va. 2003).

    Contractual indemnification claim. —

    District court improperly granted an engineer design firm summary judgment on a coal preparation facility operator’s contractual indemnification claim where § 8.01-230 explicitly excluded claims under this section from the general statute of limitations accrual date for contracts, under subdivision 5, the operator’s claim accrued on the date it suffered a loss, i.e., when the coal slurry impoundment structure failed, and the operator had filed the claim within five years of the structure failure. Lone Mt. Processing, Inc. v. Bowser-Morner, Inc., 94 Fed. Appx. 149, 2004 U.S. App. LEXIS 6806 (4th Cir. 2004).

    Fraud claim. —

    Former employee failed to meet the standard of Fed. R. Civ. P. 9(b) as a simple allegation of reliance, with nothing further, gave the former employer no notice of how the employee relied, much less if that reliance was reasonable. Additionally, the fraud claim was barred by the statute of limitations as the fraud alleged by the employee arose at the date the employment relationship between the parties was severed — November 19, 2002 — and she filed her motion for judgment on February 14, 2005 and it was apparent that the employee could not prove that she reasonably relied on any alleged misrepresentations made by the employer. Mizell v. Sara Lee Corp., No. 2:05cv129, 2005 U.S. Dist. LEXIS 36988 (E.D. Va. June 9, 2005), aff'd, 158 Fed. Appx. 424, 2005 U.S. App. LEXIS 27217 (4th Cir. 2005).

    Debtor’s claim that she relied upon her attorney’s material representations of his experience in real estate transactions and that he failed to properly record her deeds alleged mere puffery, which failed to allege a cause of action for fraud in the inducement independent of the debtor’s underlying legal malpractice claim; thus, the discovery rule did not extend the two-year statute of limitations for fraud. Ranasinghe v. Compton, 341 Bankr. 556, 2006 Bankr. LEXIS 868 (Bankr. E.D. Va. 2006).

    Fraud action against a drug manufacturer was time-barred under subdivision 1 of § 8.01-249 because plaintiff, who alleged that her breast cancer was caused by a drug, did not file the action within two years of her diagnosis. The date of accrual, for the purposes of the fraud claim, was the date of plaintiff’s diagnosis. Flick v. Wyeth LLC, No. 3:12-cv-00007-NKM, 2012 U.S. Dist. LEXIS 78900 (W.D. Va. June 6, 2012).

    The trial court erred in summarily dismissing the fraud count where the record showed that material facts were genuinely in dispute respecting when the plaintiff discovered, or by the exercise of due diligence should have discovered, the alleged fraud. Gilmore v. Basic Indus., Inc., 233 Va. 485 , 357 S.E.2d 514, 3 Va. Law Rep. 2750, 1987 Va. LEXIS 217 (1987).

    Breach of contract by subcontractor. —

    Circuit court did not err in finding that a government contractor’s action against its subcontractors was time-barred because subcontracts did not state an intent to create an obligation on the part of the subcontractor to indemnify the contractor, and thus, the right of action accrued upon breach of the performance provisions of the contract; the statute referred to actions for indemnification, and the counts at issue were explicitly brought as actions for breach of contract, not indemnification. Hensel Phelps Constr. Co. v. Thompson Masonry Contr., Inc., 292 Va. 695 , 791 S.E.2d 734, 2016 Va. LEXIS 166 (2016).

    Limitations period inapplicable to causes of action existing before October 1, 1977. —

    Circuit court did not err in granting the plea in bar of the statute of limitations in a civil action concerning alleged sexual abuse that occurred between 1971 and 1975 because the sexual abuse plaintiff suffered as a child inherently caused her injury when it occurred; under the former statutes of limitations, the limitations period on those claims began to run when plaintiff reached the age of majority in March 1975 and expired two years later in March 1977; and all of plaintiff’s causes of action existed before the effective date of Title 8.01 on October 1, 1977, and, thus, § 8.01-249 , regarding the accrual date for a cause of action regarding sexual abuse of a child, did not apply. Haynes v. Haggerty, 291 Va. 301 , 784 S.E.2d 293, 2016 Va. LEXIS 54 (2016).

    Tolling of statute of limitations. —

    In the amended complaint alleging numerous breaches of the fiduciary duties of loyalty and care by the managers of plaintiff, a limited liability company, the circuit court did not err in granting defendants’ plea in bar and in dismissing the amended complaint with prejudice because neither an irrevocable conflict of interest nor a breach of fiduciary duty was listed as a trigger for the tolling of the statute of limitations. Birchwood-Manassas Assocs., L.L.C. v. Birchwood at Oak Knoll Farm, L.L.C., 290 Va. 5 , 773 S.E.2d 162, 2015 Va. LEXIS 76 (2015).

    B.Injury From Asbestos.

    Subdivision 4 not retroactive. —

    The 1985 amendment, which added subdivision 4, cannot be applied retroactively because there is no evidence that the Virginia General Assembly intended a retroactive application. Palmer v. Norfolk & W. Ry., 646 F. Supp. 610, 1985 U.S. Dist. LEXIS 12890 (W.D. Va. 1985).

    In the absence of retroactive application of subdivision 4, the cause of action accrues and the statute of limitations begins to run when an injury is sustained, pursuant to § 8.01-230 . The cause of action accrues when the injury is diagnosable based on medical technology existing at the time of the injury. Moreover, the cause of action is deemed to have accrued whenever the injury, however slight, is complete. Palmer v. Norfolk & W. Ry., 646 F. Supp. 610, 1985 U.S. Dist. LEXIS 12890 (W.D. Va. 1985).

    Executor’s claim stemming from a decedent’s diagnosis with mesothelioma was time-barred as the statute of limitations began to run for the executor’s asbestos-related claims when the decedent was diagnosed with asbestosis in 1988; subdivision 4 of § 8.01-249 did not overrule Virginia case law recognizing the indivisible cause of action theory as it merely created an exception to the general rule that the statute of limitations was triggered at the time plaintiff was hurt, by providing that in actions for asbestos-related diseases, the statute of limitations was not triggered until the time that a physician informed the plaintiff that he or she had an asbestos-related disease. Kiser v. A.W. Chesterton Co., 770 F. Supp. 2d 745, 2011 U.S. Dist. LEXIS 27970 (E.D. Pa. 2011), transferred, No. 875, 2011 U.S. Dist. LEXIS 32715 (J.P.M.L. Mar. 25, 2011), aff'd, 517 Fed. Appx. 109, 2013 U.S. App. LEXIS 7299 (3d Cir. 2013).

    Actual injury. —

    In the asbestos action, the district court found that although the plaintiff had headaches, coughing, sore throat, irritated eyes, wheezing, shortness of breath, and chest tightness, the plaintiff did not suffer from asbestosis, interstitial fibrosis, mesothelioma, or other disabling asbestos-related disease, as required under Virginia law pursuant to § 8.01-249 4. Contreras v. Thor Norfolk Hotel, L.L.C., 292 F. Supp. 2d 798, 2003 U.S. Dist. LEXIS 21096 (E.D. Va. 2003).

    Accrual of action. —

    When enacting subdivision 4 of § 8.01-249 , the General Assembly did not abrogate the common-law indivisible cause of action principle and that a cause of action for personal injury based on exposure to asbestos accrues upon the first communication of a diagnosis of an asbestos-related injury or disease by a physician. Kiser v. A.W. Chesterton Co., 285 Va. 12 , 736 S.E.2d 910, 2013 Va. LEXIS 12 (2013) (but see Acts 2020, cc. 99 and 180, cl. 2).

    Amended complaint. —

    It was undisputed that plaintiff’s claims regarding her exposure to asbestos were governed by Virginia’s two-year statute of limitations and that, unless plaintiff’s amended complaint related back to her original complaint, her claims were time-barred. Because the two pleadings did not arise out of the same conduct, transaction, or occurrence, the amended complaint did not relate back to the original pleading. Anderson v. Bondex Int'l, Inc., 552 Fed. Appx. 153, 2014 U.S. App. LEXIS 247 (3d Cir. 2014).

    II.Decisions Under Prior Law.

    Editor’s note.

    Section contemplates both actual and constructive fraud. —

    This section makes no distinction between actual fraud and constructive fraud, and it is construed to contemplate both. Excalibur Ins. Co. v. Speller, 220 Va. 304 , 257 S.E.2d 848, 1979 Va. LEXIS 264 (1979).

    When action for fraud accrues. —

    An action for fraud accrues when the fraud is discovered, or when, by the exercise of due diligence, it should have been discovered. Eshbaugh v. Amoco Oil Co., 234 Va. 74 , 360 S.E.2d 350, 4 Va. Law Rep. 458, 1987 Va. LEXIS 248 (1987).

    The burden is on the plaintiff to prove that he acted with due diligence and yet did not discover the fraud or mistake until within the statutory period of limitation immediately preceding the commencement of the action. Hughes v. Foley, 203 Va. 904 , 128 S.E.2d 261, 1962 Va. LEXIS 234 (1962).

    Facts showing no lack of due diligence. —

    In an action for fraud, based upon statements made to induce plaintiff to make investments through defendants, the interest on bonds was regularly paid by the defendants from the time they were purchased until shortly before the action was brought, and up to that time plaintiff had no reason to suspect that they were worthless, or to make inquiry in regard to them. The conduct of the defendants concealed the true status of the bonds, and plaintiff had every reason to believe that his money was safely invested, as represented to him by the defendants. It was held that plaintiff’s claim was not barred by the statute of limitations because of lack of diligence on his part to discover the fraud. Mears v. Accomac Banking Co., 160 Va. 311 , 168 S.E. 740 , 1933 Va. LEXIS 211 (1933).

    Due diligence was not proved where it appeared from plaintiff’s testimony that because of his own carelessness in failing to inspect his canceled checks, he overlooked a duplicate payment which he had made to defendant and failed to discover his mistake for nine years. Hughes v. Foley, 203 Va. 904 , 128 S.E.2d 261, 1962 Va. LEXIS 234 (1962).

    Inapplicable to action to void deed. —

    This section is inapplicable to a situation in which the plaintiff seeks to void a valid deed of bargain and sale of real property on allegations of fraud since it is a specific statutory directive pertaining to actions to recover money. See Burton v. Terrell, 368 F. Supp. 553, 1973 U.S. Dist. LEXIS 11016 (W.D. Va. 1973).

    Action by insurer for money paid to wrong party in settlement of wrongful death action. —

    The right of an insurer to recover sums it paid in settlement of a claim for wrongful death did not accrue at the time of settlement, but at the time the court determined that the party paid, who was the administrator of the estate, was not in fact the decedent’s son and heir, so that the insurer’s motion for judgment for moneys had and received was not time-barred when it was filed within one year after such an adjudication. Excalibur Ins. Co. v. Speller, 220 Va. 304 , 257 S.E.2d 848, 1979 Va. LEXIS 264 (1979).

    Cancellation of sublease in reliance on sublessor’s misrepresentation. —

    Where sublessee surrendered possession of the service station as a result of the sublease cancellation agreement in reliance upon sublessor’s alleged misrepresentation when he signed the cancellation agreement, sublessee suffered damages by agreeing to a shorter leasehold period. Eshbaugh v. Amoco Oil Co., 234 Va. 74 , 360 S.E.2d 350, 4 Va. Law Rep. 458, 1987 Va. LEXIS 248 (1987).

    For malicious prosecution action decided under former § 8-24, see Morrison v. Jones, 551 F.2d 939, 1977 U.S. App. LEXIS 14325 (4th Cir. 1977).

    CIRCUIT COURT OPINIONS

    Accrual of action. —

    Purchaser’s cause of action alleging fraud against real estate brokers and a seller accrued the date the purchaser claimed a broker disclosed to her his lack of knowledge on whether property had ever passed a percolation test because the purchaser knew of, or “discovered,” the fraud on that date; the one-year statute of limitation applying, and the action having been brought more than one year after the cause accrued, the plea of the statute of limitation was sustained. Celeste v. Bayliss, 1986 Va. Cir. LEXIS 187 (Frederick County July 23, 1986).

    Plaintiff was not entitled to reconsideration of the statute of limitations because maritime law did not wholly and unequivocally follow either a two-disease rule or an indivisible cause of action rule (single-disease rule), general maritime law and the Federal Employers’ Liability Act did not enjoy a symbiotic relationship, the Uniform Statute of Limitations for Maritime Torts prevented the court from utilizing the state statute of limitations for asbestos-related injuries, and the effect of supplementing the Uniform Statute of Limitations for Maritime Torts with state law was that the three-year statute of limitations for an asbestos-related injury accrued when an asbestos-related injury or disease was first communicated to the plaintiff. Ferrell v. 3M Co., 2016 Va. Cir. LEXIS 228 (Newport News Dec. 19, 2016).

    Church’s Virginia Consumer Protection Act claim was barred by the two-year statute of limitations because the church discovered, or should have discovered, that the construction company failed to perform the roofing work in a workmanlike manner once the church realized that the roof continued to leak after the roof repair was completed in October 2015, but the church did not file its complaint until October 1, 2018; the church contacted the company shortly after the work was completed to correct the work it had performed, implying that the church was aware that the company had improperly performed at least some of the contracted roof work; and the church did not exercise due diligence to discover the company’s alleged misrepresentation. Hyde Park Free Will Baptist Church v. Skye-Brynn Enters., 102 Va. Cir. 180, 2019 Va. Cir. LEXIS 163 (Norfolk May 24, 2019).

    Discovery. —

    An action for violation of the Virginia Consumer Protection Act, while having a two-year statute of limitations, will not accrue until the violation is discovered or by the exercise due diligence reasonably should have been discovered, when such a violation is alleged to be due to fraud or mistake. Neal v. Haley Imps., Inc., 55 Va. Cir. 152, 2001 Va. Cir. LEXIS 258 (Chesterfield County Apr. 3, 2001).

    Because the buyers’ claim for violations of the Virginia Consumer Protection Act, § 59.1-196 et seq., was based on the seller’s alleged misrepresentations and fraudulent conduct, the claim was subject to the fraud exception for accrual based on discovery in § 8.01-249 and was not barred by the two-year statute of limitations period in § 59.1-204.1.Skibinski v. Lunger, 70 Va. Cir. 423, 2006 Va. Cir. LEXIS 158 (Arlington County June 7, 2006).

    Shareholder’s fraud and breach of fiduciary duty claims against a corporation and stockholders was time-barred because, based on a memorandum sent by the shareholder and his retention of a law firm, it was found that he discovered the facts forming the basis of his claims more than two years before the suit was filed; however, those admissions did not necessarily bar the other shareholders from their claims of fraud and breach of fiduciary duty. Conceivably, there may have been some reason why the other shareholders were unable to discover any harm until after two years before the suit was filed. Parsch v. Massey, 72 Va. Cir. 121, 2006 Va. Cir. LEXIS 304 (Charlottesville Oct. 4, 2006).

    Plea in bar to claim to plaintiffs’ breach of fiduciary duty claim was sustained as the discovery rule under subdivision 1 of § 8.01-249 did not apply to breach of fiduciary duty claims. Colgate v. Disthene Group, Inc., 86 Va. Cir. 218, 2013 Va. Cir. LEXIS 9 (Buckingham County Feb. 4, 2013).

    Limitations period for fraud claims. —

    Under § 8.01-249(1) , a fraud claim accrues when the fraud is discovered. As a husband and wife sued a subcontractor for actual and constructive fraud within two years of their discovery of the alleged fraud, the subcontractor’s plea in bar based on the statute of limitations was overruled. Schaefer v. Tectonics, II, Ltd., 77 Va. Cir. 1, 2008 Va. Cir. LEXIS 94 (Nelson County Feb. 26, 2008).

    Fraud claim. —

    Borrower and guarantors failed to adequately plead a cause of action for fraud and constructive fraud because they did not plead reasonable reliance on any alleged misrepresentations as required under § 8.01-249 . Sun Hotel v. Summitbridge Credit Invs. III, LLC, 86 Va. Cir. 189, 2013 Va. Cir. LEXIS 4 (Fairfax County Jan. 23, 2013).

    Builder’s plea in bar of the statute of limitations as to the buyers’ fraud count was overruled because the builder breached its statutory duty in 2008, the action was filed in 2009, was nonsuited, and brought again in 2010. Winston v. Tingley Constr. Co., 97 Va. Cir. 163, 2013 Va. Cir. LEXIS 129 (Richmond 2013).

    Plaintiffs filed their complaint less than two years after foreclosure, and thus the claims for breach and fraud were brought within their respective statute of limitations; while plaintiffs were not barred by laches, they failed to plead sufficient facts that there was no adequate remedy at law, given that damages could be awarded after foreclosure while equity was appropriate prior to foreclosure, and the demurrer was sustained in this regard. Waters v. CitiMortgage, Inc., 92 Va. Cir. 460, 2013 Va. Cir. LEXIS 209 (Chesterfield County Jan. 14, 2013).

    Claims based on fraud and misrepresentation under the Virginia Consumer Protection Act and negligence were barred by the statute of limitations because the injuries were sustained in October 2012. It was sufficient that the injured party simply attributed her ailments to the condition of the contaminated well water, as she did in October 2012; the record was not incomplete as to the beginning of her travails nor was a ruling on this matter premature. Isle v. Martin, 91 Va. Cir. 149, 2015 Va. Cir. LEXIS 193 (Chesterfield County Sept. 10, 2015).

    Claim that a credit line deed of trust was invalid due to the alleged forgery of a wife’s signature was barred by the statute of limitations because the husband and wife did not file their claim until March of 2015, over a year after the statute of limitations; the husband was aware of the possible forgery in March of 2012 because his bankruptcy petition in 2012 demonstrated he knew of the alleged forgery at that time. Bekenstein v. Bank of Am., N.A., 2017 Va. Cir. LEXIS 355 (Richmond Sept. 28, 2017).

    Discovery in action alleging violation of Consumer Protection Act. —

    Under § 8.01-249(1) , a claim of a violation of the Virginia Consumer Protection Act accrues when the violation is discovered. As a husband and wife sued a subcontractor for violating the Act within two years of their discovery of the alleged violation, the subcontractor’s plea in bar based on the statute of limitations, § 59.1-204.1 A, was overruled. Schaefer v. Tectonics, II, Ltd., 77 Va. Cir. 1, 2008 Va. Cir. LEXIS 94 (Nelson County Feb. 26, 2008).

    Indemnification/contribution action. —

    Complainant guarantor’s motion to strike respondent guarantor’s set-off defense to complainant’s action seeking contribution for settlement proceeds paid pursuant to a corporate loan default was granted, where respondent’s defenses were barred by the applicable three-year limitations period of either §§ 8.01-246 4 and 8.01-249 4, or a three-year Maryland limitations period, as provided by the guarantee agreement and by the policy of § 8.01-247 ; although a plea of recoupment pursuant to § 8.01-422 was not subject to a statute of limitations defense, a plea of set-off was subject to such a defense. Williams v. Kinser, 64 Va. Cir. 128, 2004 Va. Cir. LEXIS 29 (Fairfax County Feb. 24, 2004).

    Indemnification/contribution action. —

    Lessee could seek indemnification for any pump and haul payments made after June 19, 2009 because each obligation was a separate payment for a separate month’s pump and haul requirement, and each payment was a distinct transaction for the purposes of the statute of limitations; only those payments made prior to that date were time-barred by the three year statute of limitations. Colchester Sec. II, LLC v. Krispy Kreme Doughnut Corp., 85 Va. Cir. 250, 2012 Va. Cir. LEXIS 73 (Fairfax County Aug. 23, 2012).

    Contribution claim and uninsured motorist statute. —

    Reading of the statute of limitations contained in the uninsured motorist statute, § 38.2-2206, such that it would apply to third-party actions for contribution created a clear conflict with this statute because under the uninsured motorist statute, a claim could be foreclosed while the same claim had not even accrued under the this statute. As this statute was the more specific statute, it controlled. Hernandez-Wells v. Wilson, 85 Va. Cir. 41, 2012 Va. Cir. LEXIS 153 (Chesapeake Jan. 19, 2012).

    Discovery rule in fraud cases. —

    When an employee sued a physician for fraud, alleging that the physician misrepresented the employee’s medical history in a report to the Virginia Workers’ Compensation Commission, the employee’s claim accrued when he discovered the fraud, which, he admitted, was when the alleged fraud occurred. Taylor v. Robinson, 62 Va. Cir. 515, 2003 Va. Cir. LEXIS 310 (Danville Sept. 29, 2003).

    Plea in bar filed by an agent and the agent’s assistant in buyers’ fraud case was denied because, pursuant to § 8.01-249 , the statute of limitations for fraud did not begin to run until the fraud reasonably should have been discovered, and the buyers could only have discovered the alleged fraud of the agent and the agent’s assistant through discovery conducted in their original case against the sellers; at the time the buyers filed their first action against the sellers, they arguably lacked any good faith basis, required by Va. Sup. Ct. R. 1:4, to sue the agent and the agent’s assistant for fraud. The buyers only knew and could only reasonably have known that the sellers had attempted to conceal alleged defects at the home. Rosenburgs v. Ohlsons, 2008 Va. Cir. LEXIS 71 (Fairfax County Apr. 1, 2008).

    Courts dismissed fraud claims during the demurrer stage or its equivalent. Thus, there being no allegation that the investor could not have discovered the fraud any sooner than the two-year allotted time immediately preceding the filing of the action, the claims were time-barred under the provisions of §§ 8.01-243 and 8.01-249 . Schur v. Sprenkle, 84 Va. Cir. 418, 2012 Va. Cir. LEXIS 132 (Richmond Apr. 11, 2012).

    Fraud claims were time-barred because the statute of limitations began to run when a swap agreement was signed, and guarantors should have reasonably discovered that the documents did not render the guarantees non-recourse. Sun Hotel v. Summitbridge Credit Invs. III, LLC, 86 Va. Cir. 189, 2013 Va. Cir. LEXIS 4 (Fairfax County Jan. 23, 2013).

    In a case arising from the nonrepayment of two loans from the trust to an entity in which the first co-trustee had a financial interest, the claim of fraud separately alleged in Count I accrued when the second co-trustee knew or should have known of the first co-trustee’s fraudulent scheme, in which the 12th accounting showed that the repayment of the loan as a deposit in transit, but the 13th account showed that the loans were not repaid by the end of 2003; and the court found that the second co-trustee knew or should have known of the fraud by notice of the content of the Court’s Commissioner of Accounts’ July 8, 2004 letter, more than two years before suit was filed; thus, Count I was barred by the two-year statute of limitations. Lawson v. Dehnert, Clarke & Co., P.C., 107 Va. Cir. 450, 2007 Va. Cir. LEXIS 3096 (Northumberland County Nov. 28, 2007).

    Fraud exception applicable. —

    Because an amendment was not evidence that the Virginia Consumer Protection Act claims based on fraud or mistake were not previously included under § 8.01-249 , the buyers’ claim was subject to the fraud exception pursuant to § 8.01-249 , and was not barred by the two-year statute of limitations period under § 59.1-204.1.Skibinski v. Lunger, 71 Va. Cir. 389, 2006 Va. Cir. LEXIS 243 (Arlington County Aug. 18, 2006).

    Recordation of fraudulent documents. —

    Creditor’s motion to plea in bar of the statute of limitations was denied because constructive notice could not begin on the date a deed of trust was filed without evidence that would give rise to a duty for the debtor to conduct a records search at the clerk’s office; whether the two-year time-line was started when the trustee sale was first advertised and when the debtor was served with a summons for an unlawful detainer, he filed his initial counterclaim in a timely manner. U.S. Bank Nat'l Ass'n v. Clay, 2017 Va. Cir. LEXIS 82 (Newport News May 11, 2017).

    Sexual abuse in infancy. —

    Trial court granted the diocese and convent’s plea in bar directed against the former minor’s lawsuit filed against them and based on inappropriate touching by an academic teacher at the school that they operated and supervised, and which conduct occurred some 25 years before the former minor filed suit against them; while the normal statute of limitations for personal injuries was two years, that two years did not start to run until the former minor reached the age of majority, and even that time could be extended if the fact of injury and its causal connection to sexual abuse was not known until it was communicated to a plaintiff, the General Assembly was entitled to and did define the accrual date for filing a civil action based on an intentional tort committed by a natural person against a minor in Va. Const., Art. IV, § 14, para. 4, and since the extended limitations period of subdivision 6 of § 8.01-249 did not apply because the diocese and convent were not natural persons, the trial court granted their pleas in bar. McConville v. Rhoads, 67 Va. Cir. 392, 2005 Va. Cir. LEXIS 177 (Norfolk June 8, 2005).

    Sexual assault and battery was a recognizable cause of action; subdivision 6 of § 8.01-249 dealing with limitations of actions separately identified as sexual abuse during infancy, set forth a time from which the statute of repose should have been calculated. Such a subsection would not have been necessary, if in fact a civil cause of action for sexual abuse did not exist. N.G. v. Schefer, 72 Va. Cir. 239, 2006 Va. Cir. LEXIS 284 (Fauquier County Nov. 8, 2006).

    Demurrer. —

    Demurrer failed because a couple alleged three separate direct promises to either pay debt or do some particular act and the couple’s right of action accrued at moment of breach. Jackson v. Quantrex Integrated Tech. Group, Inc., 57 Va. Cir. 368, 2002 Va. Cir. LEXIS 42 (Southampton County Feb. 12, 2002).

    Court sustained the demurrer with prejudice, as fraud claims were barred by § 8.01-249 where pleadings showed that an investor’s agent knew a hotel was encumbered. Pathek v. Trivedi, 61 Va. Cir. 572, 2003 Va. Cir. LEXIS 39 (Chesterfield County Jan. 9, 2003).

    On the ground that constructive fraud cannot be based on an allegation of willful conduct, and plaintiff’s constructive fraud claim was barred by the applicable statute of limitations, the court concluded that defendant insurer’s plea in bar and demurrer to count I of the complaint alleging constructive fraud should be granted. S. Wallace Edwards & Sons v. Selective Way Ins. Co., 105 Va. Cir. 279, 2020 Va. Cir. LEXIS 97 (Surry County July 2, 2020).

    Due diligence in service absent and time expired. —

    Defendant’s receipt of plaintiff’s documents from defendant’s house-sitter on July 5, 2007, did not cure the defective service, which involved a process server handing the documents to defendant’s house-sitter, because plaintiff’s motion for judgment was filed on June 30, 2006; the receipt occurred after the one-year period under § 8.01-275.1 elapsed on July 2, 2007; and plaintiff did not exercise due diligence when the plaintiff made no further effort to properly serve defendant. Jamerson v. Laub, 74 Va. Cir. 347, 2007 Va. Cir. LEXIS 300 (Rockbridge County Nov. 8, 2007).

    Property buyer’s actions for fraud under subdivision 1 of § 8.01-249 were time-barred by the two year statute of limitations under subsection A of § 8.01-243 because a reasonable person in the buyer’s position would have investigated the clear reference to land records set forth in the special warranty deed conveying the property. Bear Ridge Developers, L.L.C. v. Cooper, 78 Va. Cir. 50, 2008 Va. Cir. LEXIS 182 (Fairfax County Dec. 2, 2008).

    Action not barred. —

    Plaintiff’s action seeking recission was not barred because the statute of limitations had not fully run at the time of filing based on when the action accrued; the complaint outlined allegations of a period of undue influence lasting until at least March 25, 2011, when plaintiff allegedly signed over a check to defendant and the suit was filed on March 18, 2016, and consequently, even if the five-year statute of limitations applied, it would not have run by the time of filing. Good v. Weaver, 98 Va. Cir. 493, 2016 Va. Cir. LEXIS 330 (Rockingham County Aug. 22, 2016).

    § 8.01-250. Limitation on certain actions for damages arising out of defective or unsafe condition of improvements to real property.

    No action to recover for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury, shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction, or construction of such improvement to real property more than five years after the performance or furnishing of such services and construction.

    The limitation prescribed in this section shall not apply to the manufacturer or supplier of any equipment or machinery or other articles installed in a structure upon real property, nor to any person in actual possession and in control of the improvement as owner, tenant or otherwise at the time the defective or unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought; rather each such action shall be brought within the time next after such injury occurs as provided in §§ 8.01-243 and 8.01-246 .

    History. Code 1950, § 8-24.2; 1964, c. 333; 1968, c. 103; 1973, c. 247; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-250 does not change the substance of former § 8-24.2; the addition of the last sentence makes it clear that actions brought under the section are subject to the limitations of §§ 8.01-243 and 8.01-246 .

    Law Review.

    For survey of Virginia law on practice and pleading in the year 1971-1972, see 58 Va. L. Rev. 1309 (1972).

    For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973).

    For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974).

    For survey of Virginia law on practice and pleading for the year 1974-1975, see 61 Va. L. Rev. 1799 (1975).

    For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

    For article on Virginia’s continuing negligent treatment rule, see 15 U. Rich. L. Rev. 231 (1981).

    For article discussing statutes of limitation and repose in toxic substances litigation, see 16 U. Rich. L. Rev. 247 (1982).

    For a review of construction law in Virginia for year 1999, see 33 U. Rich. L. Rev. 827 (1999).

    For review of judicial decisions of significance in Virginia affecting construction law, see 43 U. Rich. L. Rev. 107 (2008).

    Michie’s Jurisprudence.

    For related discussion, see 3A M.J. Building Contracts, § 31.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Section does not violate due process clause. —

    It is only when a right has accrued or a claim has arisen that it is subject to the protection of the due process clause. This section merely prevents what might otherwise be a cause of action from ever arising and therefore does not violate the due process clause. Hess v. Snyder Hunt Corp., 240 Va. 49 , 392 S.E.2d 817, 6 Va. Law Rep. 2565, 1990 Va. LEXIS 104 (1990).

    Section is not a true statute of limitations but a “cutoff provision” that operates to define the maximum period within which an action may be brought, regardless of applicable statutes of limitations. Lavery v. Automation Mgt. Consultants, Inc., 234 Va. 145 , 360 S.E.2d 336, 4 Va. Law Rep. 543, 1987 Va. LEXIS 255 (1987).

    This section is not a statute of limitations. School Bd. v. United States Gypsum Co., 234 Va. 32 , 360 S.E.2d 325, 4 Va. Law Rep. 592, 1987 Va. LEXIS 244 (1987).

    This section is not a statute of limitations, but a statute of repose, something in fact, different in concept, definition, and function. Commonwealth v. Owens-Corning Fiberglas Corp., 238 Va. 595 , 385 S.E.2d 865, 6 Va. Law Rep. 765, 1989 Va. LEXIS 179 (1989).

    Application of decisions under former statute apply under current statute. —

    Virginia’s statute of repose, originally codified at § 8-24.2, and current § 8.01-250 contain virtually identical language. Moreover, all courts apply the decisional law construing former § 8-24.2 when addressing issues arising under the more recently enacted § 8.01-250 . Kohl's Dep't Stores, Inc. v. Target Stores, Inc., 290 F. Supp. 2d 674, 2003 U.S. Dist. LEXIS 20274 (E.D. Va. 2003).

    This section is not a procedural statute. School Bd. v. United States Gypsum Co., 234 Va. 32 , 360 S.E.2d 325, 4 Va. Law Rep. 592, 1987 Va. LEXIS 244 (1987).

    The statute, by its express terms, is restricted in its application to what are in effect tort actions to recover for “injury” to property or persons and not to actions in contract. Fidelity & Deposit Co. v. Bristol Steel & Iron Works, Inc., 722 F.2d 1160, 1983 U.S. App. LEXIS 14854 (4th Cir. 1983).

    Rights bestowed by this section upon defendants (which arose when statutory period expired) are substantive if not vested and, as such, may not be impaired by retroactive application of § 8.01-250.1 .School Bd. v. United States Gypsum Co., 234 Va. 32 , 360 S.E.2d 325, 4 Va. Law Rep. 592, 1987 Va. LEXIS 244 (1987).

    General Assembly intended this section to be a statute of repose. The time limitation in such a statute begins to run from the occurrence of an event unrelated to the accrual of a cause of action, and the expiration of the time extinguishes not only the legal remedy but also all causes of action, including those which may later accrue as well as those already accrued. School Bd. v. United States Gypsum Co., 234 Va. 32 , 360 S.E.2d 325, 4 Va. Law Rep. 592, 1987 Va. LEXIS 244 (1987).

    Lapse of statutory period extinguishes all rights, including those arising from later injury. —

    As a statute of repose, this section is a redefinition of the substantive rights and obligations of the parties to any litigation “arising out of the defective and unsafe condition of an improvement to real property.” Specifically, the lapse of the statutory period was meant to extinguish all the rights of a plaintiff, including those which might arise from an injury sustained later, and to grant a defendant immunity from liability for all the torts specified in the statute. School Bd. v. United States Gypsum Co., 234 Va. 32 , 360 S.E.2d 325, 4 Va. Law Rep. 592, 1987 Va. LEXIS 244 (1987).

    The lapse of the statutory period was meant to extinguish all the rights of a plaintiff, including those which might arise from an injury sustained later, and to grant a defendant immunity from liability for all the torts specified in the statute, which itself is only applicable to those torts specified. Tate v. Colony House Bldrs., Inc., 257 Va. 78 , 508 S.E.2d 597, 1999 Va. LEXIS 8 (1999).

    Commencement of the limitations period. —

    There was no evidence to support the contention that third-party defendant construction fill dirt supplier exercised control over the installation of the fill and the fill constituted an ordinary building material, so the liability of the supplier was governed by the provisions of Virginia’s Statute of Repose; at bottom, the supplier’s “performance and furnishing” was limited to the furnishing of the fill and it had no involvement with other aspects of the construction project, so the limitations period commenced running when the supplier completed its delivery of the fill. Under any reasonable construction of the statute, the action was not commenced within the five-year period, so the court granted summary judgment to the supplier. Kohl's Dep't Stores, Inc. v. Target Stores, Inc., 290 F. Supp. 2d 674, 2003 U.S. Dist. LEXIS 20274 (E.D. Va. 2003).

    Inapplicable to action arising out of contract of indemnity. —

    An action not sounding in tort, but arising out of a specific written contract of indemnity, is outside the scope of this section. Fidelity & Deposit Co. v. Bristol Steel & Iron Works, Inc., 722 F.2d 1160 (4th Cir. 1983); Jordan v. Sandwell, Inc., 189 F. Supp. 2d 406, 2002 U.S. Dist. LEXIS 1739 (W.D. Va. 2002). In accord with bound volume. See .

    Fraud. —

    Fraud is not a tort specified in this statute because the wrongful act involved in fraud is aimed at the person; because fraud invariably acts upon the person of the victim, rather than upon property, its consequence is personal damage rather than injury to property. Tate v. Colony House Bldrs., Inc., 257 Va. 78 , 508 S.E.2d 597, 1999 Va. LEXIS 8 (1999).

    Claim for breach of warranty. —

    In an action arising from the eruption of superheated water from a tower at a paper mill, which burned the plaintiff’s back, the plaintiff could not escape the effect of statute of repose by asserting a claim for breach of warranty against the designers of the paper mill as the object of the action was still to recover for personal injury. Jordan v. Sandwell, Inc., 189 F. Supp. 2d 406, 2002 U.S. Dist. LEXIS 1739 (W.D. Va. 2002).

    Actions against architectural and engineering firm arose out of contract and were outside scope of section. —

    Where transit authority asserted breach of contract, negligence, and breach of warranties claims against architectural and engineering firm, despite firm’s argument that the claims “sounded” in tort because they arose out of alleged negligence, this was a contract action and was outside the scope of this section. Delon Hampton & Assocs. v. Washington Metro. Area Transit Auth., 943 F.2d 355, 1991 U.S. App. LEXIS 17765 (4th Cir. 1991).

    Inapplicable to products liability action concerning asbestos-containing products. —

    This section did not apply to a products liability action brought by insulation workers against the manufacturer of asbestos-containing products because the harmful exposure occurred prior to the point at which insulation products were incorporated into realty. Willis v. Raymark Indus., Inc., 905 F.2d 793, 1990 U.S. App. LEXIS 9697 (4th Cir. 1990).

    Applicability to personal injury claim against a franchisor. —

    Whether the Virginia statute of repose, § 8.01-250 , barred a guest from suing a motel franchisor for injuries that were allegedly sustained when the guest fell on steps that were not in compliance with a building code could not be decided on motion to dismiss because the franchisor, which constructed the motel more than five years earlier and did not own the motel, bore the burden of proof as to the applicability of § 8.01-250 and a franchise agreement required franchisees to submit to a systems operations manual, which was not part of the record. Link v. Bakshi, 539 F. Supp. 2d 846, 2008 U.S. Dist. LEXIS 22278 (W.D. Va. 2008).

    Evidence as to asbestos incorporated into structures more than five years before suit inadmissible. —

    No evidence is admissible as to asbestos products which were incorporated into structures which were part of the real estate more than five years before plaintiffs filed suit. Palmer v. Norfolk & W. Ry., 646 F. Supp. 610, 1985 U.S. Dist. LEXIS 12890 (W.D. Va. 1985).

    Subsequent work on system that causes accident. —

    When there is no nexus of causation between subsequent work and a system that causes an accident, i.e., when the subsequent work involves repairs that do not implicate the defects that allegedly caused injury to the plaintiff, then the original work is complete for the purposes of the statute. Jordan v. Sandwell, Inc., 189 F. Supp. 2d 406, 2002 U.S. Dist. LEXIS 1739 (W.D. Va. 2002).

    B.Manufacturers and Suppliers of Equipment and Machinery.

    General words “or any other articles” add no new or further categories to those excluded from the operation of the statute by the specific words of the second paragraph: “the manufacturer or supplier of any equipment or machinery.” Cape Henry Towers, Inc. v. National Gypsum Co., 229 Va. 596 , 331 S.E.2d 476, 1985 Va. LEXIS 237 (1985); Grice v. Hungerford Mechanical Corp., 236 Va. 305 , 374 S.E.2d 17, 5 Va. Law Rep. 909, 1988 Va. LEXIS 138 (1988).

    Section distinguishes suppliers of ordinary building materials from suppliers of machinery or equipment. —

    The General Assembly intended to perpetuate a distinction between, on the one hand, those who furnish ordinary building materials, which are incorporated into construction work outside the control of their manufacturers or suppliers, at the direction of architects, designers, and contractors, and, on the other hand, those who furnish machinery or equipment. Cape Henry Towers, Inc. v. National Gypsum Co., 229 Va. 596 , 331 S.E.2d 476, 1985 Va. LEXIS 237 (1985); Grice v. Hungerford Mechanical Corp., 236 Va. 305 , 374 S.E.2d 17, 5 Va. Law Rep. 909, 1988 Va. LEXIS 138 (1988).

    It excludes suppliers of machinery or equipment. —

    Unlike ordinary building materials, machinery and equipment are subject to close quality control at the factory and may be made subject to independent manufacturer’s warranties, voidable if the equipment is not installed and used in strict compliance with the manufacturer’s instructions. Materialmen in the latter category have means of protecting themselves which are not available to the former. This section covers the former category and excludes the latter. Cape Henry Towers, Inc. v. National Gypsum Co., 229 Va. 596 , 331 S.E.2d 476, 1985 Va. LEXIS 237 (1985); Grice v. Hungerford Mechanical Corp., 236 Va. 305 , 374 S.E.2d 17, 5 Va. Law Rep. 909, 1988 Va. LEXIS 138 (1988).

    System for the production of manufactured sand from crushed stone that was attached to a building at a stone quarry was equipment because the system was a device used for a specific purpose unrelated to the structural integrity of the building and had qualities recognized as being characteristic of equipment as the manufacturer exerted some degree of control over the installation and maintenance of the system, the system was not required for the operation of the building, and the system was neither fungible, nor generic. Potter v. BFK, Inc., 300 Va. 177 , 860 S.E.2d 703, 2021 Va. LEXIS 87 (2021).

    Customized items may be ordinary building materials. —

    That a platform and pole were customized for installation in a fire station did not mean that they were “equipment” and not ordinary building materials for purposes of the statute of repose, § 8.01-250 . Thus, the trial court properly held that plaintiff’s claims against a contractor and manufacturer were time-barred. Jamerson v. Coleman-Adams Constr., Inc., 280 Va. 490 , 699 S.E.2d 197, 2010 Va. LEXIS 233 (2010).

    Unique nature of an item does not per se preclude the item from characterization as an ordinary building material. Many items in a structure may be of a customized item or design, but still ordinary building materials for purposes of § 8.01-250 , such as non-standard ramp, door, or set of stairs built to certain specifications. Jamerson v. Coleman-Adams Constr., Inc., 280 Va. 490 , 699 S.E.2d 197, 2010 Va. LEXIS 233 (2010).

    An electrical panel box and its component parts were ordinary building materials and not equipment within the contemplation of this section. Grice v. Hungerford Mechanical Corp., 236 Va. 305 , 374 S.E.2d 17, 5 Va. Law Rep. 909, 1988 Va. LEXIS 138 (1988).

    Paper mill. —

    In an action arising from the eruption of superheated water from a tower at a paper mill, which burned the plaintiff’s back, the components of the paper mill that caused the injury did not constitute equipment and machinery that were not covered by the statute of repose as those components constituted improvements to the real property. Jordan v. Sandwell, Inc., 189 F. Supp. 2d 406, 2002 U.S. Dist. LEXIS 1739 (W.D. Va. 2002).

    Circuit breaker on pier was equipment. —

    A plaintiff’s action arising out of the explosion of a circuit breaker the plaintiff was installing in a switchgear was not barred in that the switchgear and circuit breaker were “equipment” and not building materials where the switchgear and circuit breaker were not part of the electrical system of the pier on which they were installed but, instead, comprised the electrical system for submarines docked at the pier, the switchgear and circuit breakers were each self-contained and fully assembled by their respective manufacturers and the switchgear and circuit breakers were not fungible or generic materials. Cooper Indus., Inc. v. Melendez, 260 Va. 578 , 537 S.E.2d 580, 2000 Va. LEXIS 129 (2000).

    Items used in swimming pool construction were ordinary building materials and not equipment within the meaning of this section. Luebbers v. Fort Wayne Plastics, Inc., 255 Va. 368 , 498 S.E.2d 911, 1998 Va. LEXIS 39 (1998).

    Spa drain cover was “ordinary building material.” —

    In a wrongful death action, the trial court did not err in granting the manufacturer’s plea in bar because the five-year statute of repose in § 8.01-250 was applicable to the spa drain cover which was an “ordinary building material,” indistinguishable from the material found to be ordinary building materials in prior cases. Baker v. Poolservice Co., 272 Va. 677 , 636 S.E.2d 360, 2006 Va. LEXIS 112 (2006).

    Water pipes as equipment. —

    Where the defendant supplied pipe for a water line, this section did not bar the plaintiff’s fraud claim because relatively sophisticated discrete materials such as the pipes used by the defendant are more like equipment and less like ordinary building materials; furthermore, ordinary building materials are incorporated into construction work outside the control of their manufacturers or suppliers and the defendant exercised control over the structural integrity of the pipes, and, therefore, the pipes’ incorporation into the overall project was not outside the control of the defendant. City of Richmond v. Madison Mgt. Group, Inc., 918 F.2d 438, 1990 U.S. App. LEXIS 19106 (4th Cir. 1990).

    Installer of sprinkler heads. —

    Installer of sprinkler heads, but not the manufacturer of the sprinkler heads, was entitled to the protection of the statute of repose under § 8.01-250 on insurers’ negligence claims because the sprinkler heads, which allegedly failed to work properly during a fire, were equipment and, thus, not subject to the statute of repose. Royal Indem. Co. v. Tyco Fire Prods., LP, 281 Va. 157 , 704 S.E.2d 91, 2011 Va. LEXIS 24 (2011).

    II.Decisions Under Prior Law.

    Editor’s note.

    Legislative determination of five-year cutoff is rational. —

    The legislative determination that there should be a five-year cutoff for actions to recover damages arising out of defective improvements to real property is clearly rational, particularly in light of the abolition of lack of privity as a defense to such actions. Smith v. Allen-Bradley Co., 371 F. Supp. 698, 1974 U.S. Dist. LEXIS 12655 (W.D. Va. 1974).

    Section does not constitute a statute of limitations in the strict sense. Federal Reserve Bank v. Wright, 392 F. Supp. 1126, 1975 U.S. Dist. LEXIS 13643 (D. Va. 1975).

    This section by its wording does not require that every action to which it applies shall be brought within the specified period of time provided therein, as is typical of statutes of limitation generally. Federal Reserve Bank v. Wright, 392 F. Supp. 1126, 1975 U.S. Dist. LEXIS 13643 (D. Va. 1975).

    But merely imposes an “outside limit” within which the customary statutes of limitation continue to operate. Federal Reserve Bank v. Wright, 392 F. Supp. 1126, 1975 U.S. Dist. LEXIS 13643 (D. Va. 1975).

    This section imposes an outside time limit beyond which an action for damages resulting from improper design, construction or supervision of improvements to realty may not be maintained. Federal Reserve Bank v. Wright, 392 F. Supp. 1126, 1975 U.S. Dist. LEXIS 13643 (D. Va. 1975).

    This section sets an outside limit within which the applicable statutes of limitation operate. Comptroller ex rel. VMI v. King, 217 Va. 751 , 232 S.E.2d 895, 1977 Va. LEXIS 233 (1977).

    The purpose of this section is not to extend existing limitation periods, such as the two-year period applicable to personal injury actions, but to establish an arbitrary termination date after which no litigation of the type specified may be initiated. Comptroller ex rel. VMI v. King, 217 Va. 751 , 232 S.E.2d 895, 1977 Va. LEXIS 233 (1977).

    Reasonable construction of this section would suggest a single limitation period to run from the final completion date of the entire project, whether the claim arises from faulty design or from faulty construction. Federal Reserve Bank v. Wright, 392 F. Supp. 1126, 1975 U.S. Dist. LEXIS 13643 (D. Va. 1975).

    Legislative intent as to 1973 amendment. —

    The General Assembly evinced an intent in enacting the 1973 amendment to this section to eradicate every vestige of the section, as fully as it constitutionally could, insofar as installers of machinery and equipment were concerned. Hupman v. Cook, 640 F.2d 497, 1981 U.S. App. LEXIS 20750 (4th Cir. 1981).

    Action time barred where installation five years old at time of 1973 amendment. —

    An action may not be instituted against the installer of equipment for any injuries resulting from installation already five years old on the date of the 1973 amendment to this section, since the limitation period would already have run before the amendment was passed. Hupman v. Cook, 640 F.2d 497, 1981 U.S. App. LEXIS 20750 (4th Cir. 1981).

    But not where less than five years old. —

    In an action seeking to hold defendants liable as installers of machinery and equipment alleged to have occasioned an injury to plaintiff where installation occurred 10 years prior to the action, but where injury occurred one year prior to the action and, where installation was less than five years old when the 1973 amendment to this section was passed, the action was not time barred since the General Assembly meant to eliminate altogether the benefit of the five-year limitation accounting period from the date of installation. Hupman v. Cook, 640 F.2d 497, 1981 U.S. App. LEXIS 20750 (4th Cir. 1981).

    CIRCUIT COURT OPINIONS

    Applicability. —

    Language “for contribution or indemnity for damages sustained as a result of such injury” in § 8.01-250 is intended to cover contribution among joint tortfeasors in a tort action and does not apply to a breach of contract action. Beckner v. Twin City Fire Ins. Co., 58 Va. Cir. 544, 2002 Va. Cir. LEXIS 175 (Roanoke June 27, 2002).

    Statute of repose does not apply to actions ex contractu. RML Corp. v. Lincoln Window Prods., 67 Va. Cir. 545, 2004 Va. Cir. LEXIS 363 (Norfolk Dec. 3, 2004).

    In insurers’ action to recover for damages to an apartment complex, which was filed more than five years after the installation of defective sprinkler heads, pleas in bar filed by a contractor and manufacturer were sustained because the sprinkler heads were ordinary building materials under the statute of repose, § 8.01-250 , and were subject to the five-year limitation; the sprinkler heads were purchased in bulk, the manufacturer exercised no oversight in the installation of the sprinkler heads in the sprinkler system of the apartment complex, the manufacturer provided guidance for installation of the sprinkler heads, and other sprinkler heads could have been inserted into the sprinkler system. Royal Indem. Co. v. SimplexGrinnell, L.P., 77 Va. Cir. 395, 2009 Va. Cir. LEXIS 99 (Prince William County Feb. 20, 2009), aff'd in part and rev'd in part, 281 Va. 157 , 704 S.E.2d 91, 2011 Va. LEXIS 24 (2011).

    Control over improvement. —

    City retained control over the improvement that allegedly caused damage to the homeowners’ property, the sewer system, and, thus, by the plain terms of the applicable statute, § 8.01-250 , its plea of the statute of repose had to be denied since the statute did not apply. Sullivan v. City of Hopewell, 70 Va. Cir. 134, 2006 Va. Cir. LEXIS 29 (Greensville County Jan. 18, 2006).

    Work performed was normal upkeep, not improvement. —

    Statute of repose under § 8.01-250 did not apply to a subrogee’s breach of contract action with regard to certain soffit work performed by a contractor because the work performed was part of the normal upkeep and maintenance of the building, not a modification or addition, and thus, not an improvement. Travelers Indem. Co. v. Simpson Unlimited, Inc., 80 Va. Cir. 16, 2010 Va. Cir. LEXIS 9 (Fairfax County Jan. 12, 2010).

    Substitution barred. —

    Plaintiff who sought to sue a new party under new causes of action almost seven years after accident was barred by the two-year statute of limitations from such substitution. Collier v. Arby's, Inc., 57 Va. Cir. 414, 2002 Va. Cir. LEXIS 226 (Charlottesville Mar. 7, 2002).

    Limitation not applicable. —

    Five-year limitation contained in § 8.01-250 did not apply to the electrician’s action against the manufacturer because the manufacturer consistently exhibited and maintained control over everything except for connecting the components to each other and to the building, and the components were manufactured in accordance with detailed drawings prepared by the manufacturer and approved by building owner, and were not “fungible” or “interchangeable” parts. Washington v. Square D Co., 71 Va. Cir. 34, 2006 Va. Cir. LEXIS 127 (Richmond Feb. 6, 2006).

    The statute by its express terms, is restricted in its application to what are in effect tort actions. —

    In a fourth-party complaint based in contract, a special plea to the statute of repose was overruled, as such applied to tort actions, and not to contract actions. Bd. of Dirs. of Birdneck Villas Condo. Ass'n v. Birdneck Villas, LLC, 73 Va. Cir. 175, 2007 Va. Cir. LEXIS 77 (Virginia Beach Apr. 2, 2007).

    Demurrers overruled. —

    Demurrers to negligence claims were overruled because the damages could be classified for injury to property or as an economic loss; if an uninterrupted power supply battery cabinet was ordinary building material, the damage claim was an economic loss and recovery could be had only under the law of contracts, but if the uninterrupted power supply battery cabinet was equipment or machinery having a distinct character apart from a building component, the claimed damage to property was a claim for injury. E. Va. Bank Shares, Inc. v. PPI Dissolution Co., 100 Va. Cir. 472, 2013 Va. Cir. LEXIS 225 (Essex County Apr. 15, 2013).

    Pleas in bar overruled. —

    Pleas in bar based on the statute of repose were overruled because the circuit court declined to determine based on the record whether an uninterrupted power supply battery cabinet installed in a company’s operations center constituted “equipment or machinery” or “ordinary building material”; it was not completely clear whether or not a subcontractor and general contractor had to design, manufacture, or assemble the uninterrupted power supply battery cabinet at the construction site. E. Va. Bank Shares, Inc. v. PPI Dissolution Co., 100 Va. Cir. 472, 2013 Va. Cir. LEXIS 225 (Essex County Apr. 15, 2013).

    § 8.01-250.1. Limitation on actions involving removal of asbestos.

    Notwithstanding the provisions of § 8.01-234 or any other section in this chapter, every action against a manufacturer or supplier of asbestos or material containing asbestos brought by or on behalf of any agency of the Commonwealth incorporated for charitable or educational purposes; counties, cities or towns; or school boards, to recover for (i) removal of asbestos or materials containing asbestos from any building owned or used by such entity, (ii) other measures taken to correct or ameliorate any problem related to asbestos in such building or (iii) reimbursement for such removal, correction or amelioration which would otherwise be barred prior to July 1, 1990, as a result of expiration of the applicable period of limitation, is hereby revived or extended. Any action thereon may be commenced prior to July 1, 1990.

    History. 1985, c. 262; 1986, c. 458.

    CASE NOTES

    Rights bestowed by § 8.01-250 upon defendants (which arose when statutory period expired) are substantive if not vested and, as such, may not be impaired by retroactive application of this section. School Bd. v. United States Gypsum Co., 234 Va. 32 , 360 S.E.2d 325, 4 Va. Law Rep. 592, 1987 Va. LEXIS 244 (1987).

    Application of this section where asbestos installed between 1939 and 1971 held unconstitutional. —

    In an action against manufacturers of asbestos products seeking compensatory and punitive damages allegedly sustained in inspecting, analyzing, containing, removing and replacing asbestos-containing products allegedly placed in certain school buildings between 1939 and 1971, application of this section was unconstitutional under the due process clause of Va. Const., Art. I, § 11, since the revival statute was designed primarily, not to relieve the hazard to public health, but to relieve budgetary concerns. School Bd. v. United States Gypsum Co., 234 Va. 32 , 360 S.E.2d 325, 4 Va. Law Rep. 592, 1987 Va. LEXIS 244 (1987).

    Article 4. Limitations on Enforcement of Judgments and Decrees.

    § 8.01-251. Limitations on enforcement of judgments.

    1. No execution shall be issued and no action brought on a judgment dated prior to July 1, 2021, including a judgment in favor of the Commonwealth and a judgment rendered in another state or country, after 20 years from the date of such judgment or domestication of such judgment, unless the period is extended as provided in this section. No execution shall be issued and no action brought on a judgment dated on or after July 1, 2021, including a judgment in favor of the Commonwealth and a judgment rendered in another state or country, after 10 years from the date of such judgment or domestication of such judgment, unless the period is extended as provided in this section, except that no execution shall be issued and no action brought on a judgment dated on or after July 1, 2021, that was created by nonpayment of child support after 20 years from the date of such judgment or domestication of such judgment.
    2. The limitation prescribed in subsection A may be extended by the recordation of a certificate in the form provided in subsection G prior to the expiration of the limitation period prescribed herein in the clerk’s office in which such judgment lien is recorded and executed by either the judgment lien creditor or by his duly authorized attorney-in-fact or agent. Recordation of the certificate shall extend the limitations of the right to enforce such judgment lien for 10 years from the date of the recordation of the certificate. A judgment creditor may record one additional extension by recording another certificate in the form provided in subsection G prior to the expiration of the original 10-year extension of the limitation period, which shall extend the limitations of the right to enforce such judgment lien for 10 years from the date of recordation of the second certificate. The clerk of the court shall index the certificate in both names in the index of the judgment lien book and give reference to the book and page in which the original lien is recorded. This extension procedure is subject to the exception that if the action is against a personal representative of a decedent, the motion shall be within two years from the date of his qualification, the extension may be for only two years from the time of the recordation of the certificate, and there may be only one such extension.
    3. No suit shall be brought to enforce the lien of any judgment, including judgments in favor of the Commonwealth, upon which the right to issue an execution or bring an action is barred by other subsections of this section, nor shall any suit be brought to enforce the lien of any judgment against the lands which have been conveyed by the judgment debtor to a grantee for value, unless the same be brought within five years from the due recordation of the deed from such judgment debtor to such grantee and unless a notice of lis pendens shall have been recorded in the manner provided by § 8.01-268 before the expiration of such five-year period.
    4. In computing the time, any time during which the right to sue out execution on the judgment is suspended by the terms thereof, or by legal process, shall be omitted. Sections 8.01-230 et seq., 8.01-247 and 8.01-256 shall apply to the right to bring such action in like manner as to any right.
    5. This section shall not be construed to impair the right of subrogation to which any person may become entitled while the lien is in force, provided that he institutes proceedings to enforce such right within five years after the same accrued, nor shall the lien of a judgment be impaired by the recovery of another judgment thereon, or by a forthcoming bond taken on an execution thereon, such bond having the force of a judgment.
    6. Limitations on enforcement of judgments entered in the general district courts shall be governed by § 16.1-94.1 , unless an abstract of such judgment is docketed in the judgment book of a circuit court. Upon the docketing of such judgment, the limitation for the enforcement of a district court judgment is the same as for a judgment of the circuit court.
    7. Any extension of the limitations of the right to enforce a judgment shall conform substantially with the following form:

      Click to view

    CERTIFICATE OF EXTENSION OF LIMITATION OF RIGHT TO ENFORCE JUDGMENT LIEN Place of Record Date Judgment Docketed Judgment Lien Book Book Page Name of Creditor(s) Address of Creditor(s) Phone number of Creditors(s)(if available) Name of Debtor(s) I/we, the judgment lien creditor(s), do hereby certify that the aforementioned judgment lien be extended 10 years from the date of my/our endorsement upon this certificate. Judgment Creditor/Attorney-in-Fact/Agent: Commonwealth of Virginia County/City of Subscribed, sworn to and acknowledged before me by , this day of , 20 My Commission expires: Notary Public:

    History. Code 1950, §§ 8-393, 8-394, 8-396, 8-397; 1956, c. 512; 1958, c. 221; 1960, c. 274; 1977, c. 617; 1983, c. 499; 2002, c. 394; 2005, cc. 139, 203; 2021, Sp. Sess. I, c. 486.

    REVISERS’ NOTE

    Section 8.01-251 consolidates former §§ 8-393, 8-394, 8-396 and 8-397.

    Subsection A relates primarily to § 8-397, subsection B to § 8-396, subsection C to § 8-393, subsection D to § 8-397, subsection E to § 8-396, and subsection F to § 8-394. The essence of the former sections is set forth without substantive change except that the five-year period in former § 8-396 for extending a judgment against a personal representative has been reduced to two years; the penalty bond procedure in former § 8-397 has been deleted, and the reference to former § 8-33 found in former § 8-397 has been deleted. Reference to the writ of scire facias has been deleted. See § 8.01-24 .

    Cross references.

    As to limitations generally, see § 8.01-228 et seq.

    For statute as to when process shall be returnable, if not otherwise specially provided, see § 8.01-294 .

    As to forthcoming bond, see §§ 8.01-465 , 8.01-528 , 8.01-532 .

    As to executions on judgments, see § 8.01-466 through 8.01-505 .

    As to homestead exemptions, see § 34-24 .

    As to subrogation generally, see § 49-27 and note.

    As to recordation of deed, see § 55.1-600 et seq.

    Editor’s note.

    Acts 2021, Sp. Sess. I, c. 486, cl. 2 provides: “That the provisions of this act, except for the provisions amending subsections B and G of § 8.01-251 of the Code of Virginia, as amended by this act, shall become effective on January 1, 2022.”

    Acts 2021, Sp. Sess. I, c. 486, cl. 3 provides: “That the provisions of this act amending subsections B and G of § 8.01-251 of the Code of Virginia, as amended by this act, shall become effective in due course, and a judgment lien creditor or his duly authorized attorney-in-fact or agent may record a Certificate of Extension of Limitation of Right to Enforce Judgment Lien for judgment liens dated prior to July 1, 2021, beginning on July 1, 2021.”

    The 2002 amendments.

    The 2002 amendment by c. 394, in subsection G, added the language following “§ 16.1-94.1 ” in the first sentence, and added the second sentence.

    The 2005 amendments.

    The 2005 amendments by cc. 139 and 203 are nearly identical, and in subsection A, inserted “and a judgment rendered in another state or country” and “or domestication of such judgment”; and made minor stylistic changes.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 486, effective July 1, 2021, rewrote subsection B, which read: “B. The limitation prescribed in subsection A may be extended on motion of the judgment creditor or his assignee with notice to the judgment debtor, and an order of the circuit court of the jurisdiction in which the judgment was entered to show cause why the period for issuance of execution or bringing of an action should not be extended. Any such motion shall be filed within the 20-year period from the date of the original judgment or from the date of the latest extension thereof. If upon the hearing of the motion the court decides that there is no good cause shown for not extending the period of limitation, the order shall so state and the period of limitation mentioned in subsection A shall be extended for an additional 20 years from the date of filing of the motion to extend. Additional extensions may be granted upon the same procedure, subject in each case to the recording provisions prescribed in § 8.01-458 . This extension procedure is subject to the exception that if the action is against a personal representative of a decedent, the motion shall be within two years from the date of his qualification, the extension may be for only two years from the time of the filing of the motion, and there may be only one such extension”; and added subsection H.

    The 2021 amendment by Sp. Sess. I, c. 486, effective January 1, 2022, rewrote subsection A, which read: “A. No execution shall be issued and no action brought on a judgment, including a judgment in favor of the Commonwealth and a judgment rendered in another state or country, after 20 years from the date of such judgment or domestication of such judgment, unless the period is extended as provided in this section”; in subsection C, substituted “five” for “10” and “five-year” for “10-year”; deleted former subsection E, which read: “The provisions of this section apply to judgments obtained after June 29, 1948, and to judgments obtained prior to such date which are not then barred by the statute of limitations, but nothing herein shall have the effect of reducing the time for enforcement of any judgment the limitation upon which has been extended prior to such date by compliance with the provisions of law theretofore in effect”; and made a stylistic change.

    Law Review.

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    For annual survey article, “Family Law,” see 48 U. Rich. L. Rev. 135 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Creditors’ Suits, § 16.

    CASE NOTES

    I.Decisions Under Current Law.

    Ten-year period does not violate Full Faith and Credit Clause. —

    A forum state may apply its own statute of limitations to an action on a foreign judgment without violating the Full Faith and Credit Clause. This statute is procedural only; it does not affect the judgment creditor’s substantive right unless the period of limitations is so stringent and unreasonable as to deny the right. A 10-year period is neither stringent nor unreasonable and therefore does not offend this portion of the Constitution. Carter v. Carter, 232 Va. 166 , 349 S.E.2d 95, 3 Va. Law Rep. 877, 1986 Va. LEXIS 242 (1986).

    Section does not violate Equal Protection Clause. —

    Domestic judgment creditors and foreign judgment creditors are inherently different classes. The domestic judgment creditor has an immediate right to enforcement of his judgment, without further action. The foreign judgment creditor has no right of enforcement in Virginia until he reduces his foreign judgment to a Virginia judgment. As these creditors are not similarly situated, statutory provisions treating them differently may not be successfully challenged under the Equal Protection Clause. Carter v. Carter, 232 Va. 166 , 349 S.E.2d 95, 3 Va. Law Rep. 877, 1986 Va. LEXIS 242 (1986).

    Action filed more than 20 years after any payments. —

    Finding against the father was inappropriate because the action to collect past due child support obligations, based upon the 1966 decree, was filed more than 20 years after any payments ordered by the decree became judgments by operation of law, and was barred pursuant to subsection A of § 8.01-251 . Adcock v. Commonwealth ex rel. Houchens, 282 Va. 383 , 719 S.E.2d 304, 2011 Va. LEXIS 223 (2011).

    Disparate treatment of foreign judgment creditors has legitimate state purpose. —

    If the Equal Protection Clause is even applicable to the dissimilar classes of creditors addressed by this section and former § 8.01-252 , the disparate treatment of foreign judgment creditors is rationally related to a legitimate state purpose. Therefore, the 10-year limitations period of former § 8.01-252 does not violate the Fourteenth Amendment. Carter v. Carter, 232 Va. 166 , 349 S.E.2d 95, 3 Va. Law Rep. 877, 1986 Va. LEXIS 242 (1986) (decided prior to 2005 repeal of § 8.01-252 and amendment to this section).

    Statute of limitations. —

    Viewing the company’s claim in a light most favorable to the company, the claim was potentially one for an enforcement of a judgment, which would have a 20-year statute of limitations. Without further evidence on whether the company actually had a claim for successor liability, the court could not dismiss the claim based on statute of limitations grounds, thus the company stated a valid counterclaim for successor liability. Bizmark, Inc. v. Air Prods., No. 2:04cv00109, 2005 U.S. Dist. LEXIS 26707 (W.D. Va. Nov. 4, 2005).

    Foreign judgment creditor may have up to 30 years to enforce judgment. —

    Once the foreign judgment is reduced to a Virginia judgment under former § 8.01-252 , enforcement of the judgment, like any originating in Virginia, is subject to the 20-year limitations period of this section. Thus, a foreign judgment creditor may actually have as many as 30 years to enforce his judgment. Carter v. Carter, 232 Va. 166 , 349 S.E.2d 95, 3 Va. Law Rep. 877, 1986 Va. LEXIS 242 (1986) (decided prior to 2005 repeal of § 8.01-252 and amendment to this section).

    Enforcement of foreign support orders in URESA proceedings. —

    In a Uniform Reciprocal Enforcement of Support Act (URESA) proceeding where a foreign support order merely establishes an ongoing, unliquidated spousal support obligation, the provisions of § 8.01-252 are not applicable. Once a Virginia judgment for a sum certain for accumulated support arrearages is obtained, this section controls the time within which that judgment may be enforced in this Commonwealth. However, in a URESA proceeding where the foreign support order adjudicates a sum certain due and owing, former § 8.01-252 acts as a cutoff provision and operates as an outside limit in which the URESA proceeding must be commenced. Bennett v. Commonwealth, Dep't of Social Servs. ex rel. Waters, 15 Va. App. 135, 422 S.E.2d 458, 9 Va. Law Rep. 358, 1992 Va. App. LEXIS 246 (1992) (decided prior to 2005 repeal of § 8.01-252 and amendment to this section).

    An action under § 921(d) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 921(d), was not governed by Virginia’s twenty year statute of limitations for the enforcement of judgments, although plaintiffs argued that actions to enforce state workers’ compensation awards were subject to this limitation period. Section 8.01-248 , Virginia’s catch-all or general statute of limitations, would be borrowed, and plaintiffs’ claims were barred. Kinder v. Coleman & Yates Coal Co., 974 F. Supp. 868, 1997 U.S. Dist. LEXIS 13618 (W.D. Va. 1997).

    The cases cited below were decided under corresponding provisions of former law. The terms “the statute,” “the statute of limitations,” and “this section,” as used below, refer to former provisions.

    Lien of judgment ceases when right to execution barred. —

    The principle is now settled by statute that the lien of a judgment ceases with the life of the judgment. Hutchison v. Grubbs, 80 Va. 251 , 1885 Va. LEXIS 62 (1885); Ayre v. Burke, 82 Va. 338 , 4 S.E. 618 , 1886 Va. LEXIS 39 (1886); Brown v. Butler, 87 Va. 621 , 13 S.E. 71 , 1891 Va. LEXIS 114 (1891); Ackiss v. Satchell, 104 Va. 700 , 52 S.E. 378 , 1905 Va. LEXIS 153 (1905).

    The lien of a judgment ceases when the right to sue out of execution on the judgment is barred by the statute of limitations. McCarty v. Ball, 82 Va. 872 , 1 S.E. 189 , 1887 Va. LEXIS 157 (1887); Kennerly v. Swartz, 83 Va. 704 , 3 S.E. 348 , 1887 Va. LEXIS 113 (1887), overruled, Oppenheim v. Myers, 99 Va. 582 , 39 S.E. 218 , 1901 Va. LEXIS 82 (1901); Serles v. Cromer, 88 Va. 426 , 13 S.E. 859 , 1891 Va. LEXIS 56 (1891).

    Lien is unenforceable in equity when judgment barred at law. —

    Judgment liens are creatures of statute, and cannot be enforced in equity after they have ceased to be enforceable at law. Hutchison v. Grubbs, 80 Va. 251 , 1885 Va. LEXIS 62 (1885); McCarty v. Ball, 82 Va. 872 , 1 S.E. 189 , 1887 Va. LEXIS 157 (1887).

    But where debt is secured by mortgage, lien survives. —

    Where there is a judgment for a debt secured by a mortgage, deed of trust or vendor’s lien, the lien does not grow out of the judgment itself but is collateral thereto and may be enforced in equity although the judgment be barred or annihilated. Paxton v. Rich, 85 Va. 378 , 7 S.E. 531 , 1888 Va. LEXIS 44 (1888).

    This section does not apply to a motion on a forthcoming bond. Lipscomb v. Davis, 31 Va. (4 Leigh) 303, 1833 Va. LEXIS 19 (1833).

    Or to a judgment quando acciderint. —

    A judgment quando acciderint does not come within the operation of this section. Smith v. Charlton, 48 Va. (7 Gratt.) 425, 1851 Va. LEXIS 23 (1851).

    Judgment may be good against surety though barred as to principal. —

    Pursuant to § 8.01-442 and subsection B, where judgment has been recovered against principal and surety, no length of time short of the period prescribed by this section will bar the right of the creditor to enforce his judgment against the surety or his estate, even though the judgment is barred as to the principal. Manson v. Rawlings, 112 Va. 384 , 71 S.E. 564 , 1911 Va. LEXIS 96 (1911); Fidelity & Cas. Co. v. Lackland, 175 Va. 178 , 8 S.E.2d 306, 1940 Va. LEXIS 160 (1940).

    Exceptions to the operation of the statute of limitations must be found in the statute itself. Clarke v. Nave, 116 Va. 838 , 83 S.E. 547 , 1914 Va. LEXIS 96 (1914).

    Exceptions to the limitation of time to institute proceedings to enforce a judgment must be found in this section itself and in cognate sections. Steffey v. King, 126 Va. 120 , 101 S.E. 62 , 1919 Va. LEXIS 80 (1919); Barley v. Duncan, 177 Va. 202 , 13 S.E.2d 298, 1941 Va. LEXIS 206 (1941).

    An order of reference for an account of liens stops the running of the statute of limitations as to all judgment creditors who come in under the order and prove their liens or assert them in the suit. Gunnell v. Dixon, 101 Va. 174 , 43 S.E. 340 , 1903 Va. LEXIS 16 (1903).

    Death of party does not suspend running of time. —

    The extension of one year from the death of a party described in § 8.01-229 is not one of the exceptions expressed in this section. Barley v. Duncan, 177 Va. 202 , 13 S.E.2d 298, 1941 Va. LEXIS 206 (1941).

    Nor does homestead exemption. —

    The prohibition of the enforcement of a judgment against property set apart as a homestead does not suspend the running of the statute of limitations as to the judgment. A claim of homestead by the judgment debtor is not one of the exceptions mentioned in the following section nor does the inability to enforce the judgment against the homestead prevent the creditor’s keeping the judgment alive. Ackiss v. Satchell, 104 Va. 700 , 52 S.E. 378 , 1905 Va. LEXIS 153 (1905).

    Nor by absence of debtor from State. —

    The running of the statute of limitations on suits to enforce judgment liens is not tolled by the absence of the judgment debtor from the State, since such suits are expressly excepted from the application of § 8.01-229 . Duffy v. Hartsock, 187 Va. 406 , 46 S.E.2d 570, 1948 Va. LEXIS 231 (1948).

    Nor does creditor’s bill except as to creditors who come into suit. —

    A creditor’s bill to subject the lands of his debtor to judgment liens does not suspend the running of the statute of limitations except as to creditors who come into the suit, and, upon the same principle, as to creditors who do not come in, the act is not suspended as to persons and property not brought into the lien creditor’s suit while it is a pending suit and before a final decree. Blair v. Rorer's Adm'r, 135 Va. 1 , 116 S.E. 767 , 1923 Va. LEXIS 1, writ of error denied, 262 U.S. 734, 43 S. Ct. 704, 67 L. Ed. 1206, 1923 U.S. LEXIS 2999 (1923).

    But decree suspending execution suspends running of limitations. —

    Where the collection of an execution on a judgment is suspended by a decree in chancery, the period during which the decree of suspension remains in force is to be excluded in the computation of time. Davis v. Roller, 106 Va. 46 , 55 S.E. 4 , 1906 Va. LEXIS 106 (1906).

    But not by provision requiring creditor to execute bond. —

    A provision of a decree in favor of a receiver that he shall execute a bond in a fixed penalty before receiving any money thereunder does not suspend the decree. Serles v. Cromer, 88 Va. 426 , 13 S.E. 859 , 1891 Va. LEXIS 56 (1891).

    Or by agreement of parties not made part of judgment. —

    An agreement not made a part of a judgment, that no execution shall be placed in the hands of the sheriff for a stated period does not prevent the running of the statute of limitations against the judgment. The agreement is not within the letter or the spirit of this section. Clarke v. Nave, 116 Va. 838 , 83 S.E. 547 , 1914 Va. LEXIS 96 (1914).

    Statute does not run while injunction to judgment is pending. —

    The statute of limitations does not run while an injunction to the judgment is pending. Hutsonpiller v. Stover, 53 Va. (12 Gratt.) 579, 1855 Va. LEXIS 44 (1855).

    Time pending appeal is not excluded. —

    It would be denying effect to the plain provisions of the statutes to hold that there should be added to the exceptions contained in subsection D another to the effect that the time pending an appeal must be excluded from the time specified by subsection B in which execution may issue. Seal v. Puckett, 159 Va. 297 , 165 S.E. 496 , 1932 Va. LEXIS 197 (1932).

    Nor is time of pending suit when no order suspending execution is made. —

    A petition filed by a judgment creditor in a chancery suit, upon which no other order of court was ever made except an order of dismissal, seven years after it was filed was not “legal process,” which suspended the right to sue out execution on the judgment. Dabney v. Shelton, 82 Va. 349 , 4 S.E. 605 , 1886 Va. LEXIS 42 (1886).

    Where nonresident judgment creditors are summoned by order of publication, and no order is made to suspend the issuing of executions, a suit to enforce a contract for the sale of the judgment debtor’s land is no such “legal process” as, under this section, suspends judgment creditors’ right to sue out executions and stops the running of the statute of limitations against such judgments. Straus v. Bodeker, 86 Va. 543 , 10 S.E. 570 , 1889 Va. LEXIS 69 (1889).

    War may suspend running of limitations. —

    The operation of the statute of limitations upon judgments is suspended during a period of war, when the judgment plaintiff is resident in the territory of one of the belligerent parties, and the defendant in the other. Brewis v. Lawson, 76 Va. 36 , 1881 Va. LEXIS 71 (1881).

    Action lies as soon as judgment recovered. —

    At the common law an action of debt lies as soon as judgment is recovered, and without regard to the plaintiff’s right to take out execution, for the remedy by execution is cumulative only, and the statutes giving this remedy do not impair the common-law right of action on the judgment as a debt of record. American Ry. Express Co. v. F.S. Royster Guano Co., 141 Va. 602 , 126 S.E. 678 , 1925 Va. LEXIS 437 (1925), aff'd, 273 U.S. 274, 47 S. Ct. 355, 71 L. Ed. 642, 1927 U.S. LEXIS 698 (1927).

    Judgment sued on does not merge with new judgment obtained thereon. —

    A judgment upon which action has been brought does not merge with the new judgment in such a manner as to defeat the lien of the old judgment and give the lien of the new judgment priority over other liens only as of the date of its entry. Whatever may be the general doctrine in other jurisdictions as to the merger of one judgment in another, it cannot be so applied in Virginia as to convert the provisions of this section into a delusion and a snare. Hay v. Alexandria & W.R.R., 20 F. 15, 1884 U.S. App. LEXIS 1964 (C.C.D. Va. 1884).

    Motion should state facts necessary to authorize relief sought. —

    It is essential that the writ of scire facias (now motion) which serves the double purpose of a writ (now motion) and declaration should state all the facts necessary to authorize the relief sought. It should follow the judgment to be revived as to the amount, date, and parties. White v. Palmer, 110 Va. 490 , 66 S.E. 44 , 1909 Va. LEXIS 170 (1909); American Ry. Express Co. v. F.S. Royster Guano Co., 141 Va. 602 , 126 S.E. 678 , 1925 Va. LEXIS 437 (1925), aff'd, 273 U.S. 274, 47 S. Ct. 355, 71 L. Ed. 642, 1927 U.S. LEXIS 698 (1927).

    Judgment should be that plaintiff have execution. —

    The extent of the jurisdiction of the court upon a proper writ of scire facias (now motion) to revive a judgment is to render judgment that the plaintiffs in the writ (now motion) may have execution of the judgment set forth in the writ (now motion). All beyond this is outside of the jurisdiction of the court and a mere nullity, and it may be so treated by any court in any proceeding, direct or collateral. If the judgment on the scire facias (now motion) goes further and besides awarding execution on the original judgment awards the payment of money, the latter is void for want of jurisdiction and may be assailed collaterally. A judgment of revival merely is not a lien on land, though the judgment revived will constitute such lien. White v. Palmer, 110 Va. 490 , 66 S.E. 44 , 1909 Va. LEXIS 170 (1909).

    Irregular or erroneous scire facias (now motion) is voidable only. —

    An irregular or erroneous scire facias (now motion) to revive a judgment is voidable only, and if the irregularity is not taken advantage of in some appropriate method, the judgment of revivor is valid. It cannot be collaterally assailed, and will support title derived from an execution issued by its authority. White v. Palmer, 110 Va. 490 , 66 S.E. 44 , 1909 Va. LEXIS 170 (1909).

    Subsection F is remedial in its nature and affects only a procedural matter. Aetna Cas. & Sur. Co. v. Whaley, 173 Va. 11 , 3 S.E.2d 395, 1939 Va. LEXIS 171 (1939).

    It may bar right of subrogation to foreign judgment. —

    If it be assumed that a surety which has paid a foreign judgment is entitled to enforce subrogation thereto in the courts of this State, though it has no Virginia judgment, the five-year limitation in this section applies to that right. Aetna Cas. & Sur. Co. v. Whaley, 173 Va. 11 , 3 S.E.2d 395, 1939 Va. LEXIS 171 (1939).

    Failure to ask specifically for subrogation is not ground for a demurrer to a bill filed by a surety against his principal to subject the land of the principal of the lien of a judgment which he has paid as surety, where the bill alleges a state of facts which shows that the complainant is entitled to subrogation, and contains a prayer for general relief. Hawpe v. Bumgardner, 103 Va. 91 , 48 S.E. 554 , 1904 Va. LEXIS 15 (1904).

    CIRCUIT COURT OPINIONS

    Filing of notice of lis pendens. —

    Filing of a notice of lis pendens would not have commenced the judgment creditor’s action to enforce the lien of its judgment but would have put notice on the land records of the county of the pendency of the litigation at the time of the expiration of the 10-year period; thus, without a recorded lis pendens, a person without actual notice of the litigation acquiring the property looking at the county land records would conclude correctly the 10-year limitation had expired. United Leasing Corp. v. Lacey, 101 Va. Cir. 402, 2013 Va. Cir. LEXIS 222 (Westmoreland County Jan. 16, 2013).

    Plea in bar did not relate to when the action was commenced by the filing of the complaint in the clerk’s office because the basis for the demurrer was the concurrent separate requirement that a notice of lis pendens be filed before the expiration of the 10-year period; that the timely filing of the complaint did toll the running of time to commence the suit did not mean that the separate requirement for the filing of a notice of lis penden ceased because it did not. United Leasing Corp. v. Lacey, 101 Va. Cir. 402, 2013 Va. Cir. LEXIS 222 (Westmoreland County Jan. 16, 2013).

    Because § 8.01-235 addresses only the commencement of an action, it has no application to the filing of the notice of lis pendens required in subsection C of § 8.01-251 ; thus, a grantee and lender did not waive the right to file a plea in bar due to any waiver and could not assert the 10-year limitation for commencing the suit to enforce a judgment lien as an affirmative defense in their answers because the judgment creditor filed the action within the statute of limitations. United Leasing Corp. v. Lacey, 101 Va. Cir. 402, 2013 Va. Cir. LEXIS 222 (Westmoreland County Jan. 16, 2013).

    “Manner” of recordation. —

    Language in subsection C of § 8.01-251 requiring the filing of a notice of lis pendens was specific to a judgment creditor’s particular suit and was not dispensed with by subsection B of § 8.01-268 ; it is the language in subsection A of § 8.01-268 and not subsection B that prescribes the “manner” by which the judgment creditor is to “record” a notice of lis pendens. United Leasing Corp. v. Lacey, 101 Va. Cir. 402, 2013 Va. Cir. LEXIS 222 (Westmoreland County Jan. 16, 2013).

    Legislative purpose. —

    Lis pendens had to be filed before the expiration of 10 years from the recordation of the deed because any exception to such requirement could have been clearly set out in the statute, but none was set forth; legislative purpose of subsection C is not satisfied by the plaintiff simply filing its complaint, the service of process on defendants and their filing responsive pleadings. United Leasing Corp. v. Lacey, 101 Va. Cir. 402, 2013 Va. Cir. LEXIS 222 (Westmoreland County Jan. 16, 2013).

    Legislative purpose of the lis pendens requirement is to mandate a notice of record in order that the process of the court will not be upset by a non-party claim. United Leasing Corp. v. Lacey, 101 Va. Cir. 402, 2013 Va. Cir. LEXIS 222 (Westmoreland County Jan. 16, 2013).

    OPINIONS OF THE ATTORNEY GENERAL

    Limitations for enforcement of restitution. —

    There is a twenty-year statute of limitations for the civil enforcement of restitution imposed by a circuit court in a traffic or criminal prosecution. This limitation period is extendable upon motion and by court approval in twenty-year increments, and is not tolled during incarceration, unless the court stays enforcement until the debtor/defendant is released. See opinion of Attorney General to The Honorable Richard L. Francis, Clerk, County of Southampton/City of Franklin Circuit Court, 16-022, (4/27/17).

    § 8.01-252. Repealed by Acts 2005, cc. 139, 203.

    Article 5. Miscellaneous Limitations Provisions.

    § 8.01-253. Limitation of suits to avoid voluntary conveyances, etc.

    No gift, conveyance, assignment, transfer, or charge, which is not on consideration deemed valuable in law, or which is upon consideration of marriage, shall be avoided in whole or in part for that cause only, unless within five years from its recordation, and if not so recorded within five years from the time the same was or should have been discovered, suit be brought for that purpose, or the subject thereof, or some part of it, be distrained or levied on by or at the suit of a creditor, as to whom such gift, conveyance, assignment, transfer, or charge, is declared to be void by § 55.1-401 .

    History. Code 1950, § 8-19; 1977, c. 617.

    Editor’s note.

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “55.1-401” for “55-81.”

    Law Review.

    For annual survey essay, “Bulls, Bears, and Pigs: Revisiting the Legal Minefield of Virginia Fraudulent Transfer Law,” see 46 U. Rich. L. Rev. 273 (2011).

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Bankruptcy, § 111.

    CASE NOTES

    Editor’s note.

    Some of the cases cited below were decided under corresponding provisions of former law. The terms “the act of limitations” and “this section,” as used below, refer to former provisions.

    Section is not applicable to commissioner’s suit to vacate deed to debtor. —

    This section refers to suits by creditors to annul voluntary conveyances by their debtors to third persons in derogation of the creditor’s rights, and not to a suit by a commissioner to vacate a deed executed by him to a debtor upon the ground of misrepresentation on the part of the grantee that the purchase price had been paid. Williams v. Blakey, 76 Va. 254 , 1882 Va. LEXIS 27 (1882).

    Nor is it applicable to fraudulent conveyances. —

    The limitations prescribed by this section, within which to bring a suit to set aside a voluntary conveyance, has no application to an attack on a conveyance on the ground of actual fraud. Kinney v. Craig, 103 Va. 158 , 48 S.E. 864 , 1904 Va. LEXIS 22 (1904) (see also Atkinson v. Solenberger, 112 Va. 667 , 72 S.E. 727 (1911)).

    Action claiming personal liability of corporate shareholders for fraudulent conveyance not fraud. —

    A claim which sought to pierce the corporate veil of automobile dealership and impose personal liability on the defendant shareholders for the fraudulent conveyance of the dealership’s assets was not a fraud claim and thus was subject to limitation period in this section rather than § 8.01-248 . Curley v. Dahlgren Chrysler-Plymouth, Dodge, Inc., 245 Va. 429 , 429 S.E.2d 221, 9 Va. Law Rep. 1218, 1993 Va. LEXIS 71 (1993).

    Cases of actual fraud are not included under this section. Snoddy v. Haskins, 53 Va. (12 Gratt.) 363, 1855 Va. LEXIS 26 (1855); Flook v. Armentrout, 100 Va. 638 , 42 S.E. 686 , 1902 Va. LEXIS 70 (1902); Kinney v. Craig, 103 Va. 158 , 48 S.E. 864 , 1904 Va. LEXIS 22 (1904).

    It does not protect property in hands of distributee. —

    This section does not protect from liability for decedent’s debts property which has passed into the hands of distributees. Coles v. Ballard, 78 Va. 139 , 1883 Va. LEXIS 21 (1883).

    Exceptions to the operation of this section must be found in the statute itself, for “the doctrine of an inherent equity creating an exception where the statute creates none, is now universally exploded.” Bickle v. Chrisman, 76 Va. 678 , 1882 Va. LEXIS 68 (1882); Matthews & Co. v. Progress Distilling Co., 108 Va. 777 , 62 S.E. 924 , 1908 Va. LEXIS 96 (1908).

    Running of statute is not postponed until settlement is made. —

    The running of the act of limitation to suits to avoid voluntary conveyances is not postponed simply because no settlement has been had between the parties and the exact amount due has not been ascertained. Vashon v. Barrett, 99 Va. 344 , 38 S.E. 200 , 1901 Va. LEXIS 48 (1901).

    Voluntary conveyance between husband and wife. —

    In the absence of fraud, a suit by creditors to annul a conveyance to a husband in trust for his wife, on the ground that the consideration was paid by the husband, is barred in five years. Welsh v. Solenberger, 85 Va. 441 , 8 S.E. 91 , 1888 Va. LEXIS 53 (1888).

    Bankruptcy trustee’s action to avoid debtor’s transfer was timely. —

    Chapter 7 trustee’s action to avoid a debtor’s July 16, 2004, transfer of its interest in a limited liability company to its president was viable because the debtor commenced the bankruptcy case on April 3, 2006, and the statute of limitations for an action to avoid a voluntary transfer under § 55-81 was five years under § 8.01-253 and the action under § 55-80 for a fraudulent transfer was subject only to laches. Bartl v. Ochsner (In re Ichiban, Inc.), No. 06-10316-SSM, No. 06-1134, 2007 Bankr. LEXIS 1255 (Bankr. E.D. Va. Apr. 4, 2007).

    Marriage settlement. —

    Under this section, a marriage settlement cannot be avoided on the ground that it is voluntary after five years from the date of its admission to record, no actual fraud being charged. McCue v. Harris, 86 Va. 687 , 10 S.E. 981 , 1890 Va. LEXIS 34 (1890).

    Burden of proving time of transfer. —

    The burden of proving that the transfer, alleged to be voluntary, was made more than five years before the institution of the suit to have it set aside is on the party pleading the statute. Vashon v. Barrett, 99 Va. 344 , 38 S.E. 200 , 1901 Va. LEXIS 48 (1901).

    CIRCUIT COURT OPINIONS

    Applicability. —

    Statute did not apply in plaintiff’s action seeking recission; the statute applies to scenarios involving third-party creditors who file suit to set aside voluntary conveyances that would allow the transferor to avoid a judgment. Good v. Weaver, 98 Va. Cir. 493, 2016 Va. Cir. LEXIS 330 (Rockingham County Aug. 22, 2016).

    Fraudulent conveyance. —

    It is clear from the absence of a specified statute of limitations for fraudulent conveyance that the General Assembly intended there be no set limitation on the period during which such claims could be advanced, so as to not allow fraudulent transfers or those designed to hinder creditors to become legal merely by the expiration of a fixed period of time; at the same time the law will not suffer a plaintiff who does not timely assert its equitable remedies. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017), vacated, rev'd, 300 Va. 25 , 859 S.E.2d 651, 2021 Va. LEXIS 71 (2021).

    § 8.01-254. Limitation on enforcement of bequests and legacies.

    Wherever by any will, the testator devises any real estate to some person and requires such person to pay some other person a specified sum of money, or provides a legacy for some person which constitutes a charge against the real estate of the testator, or any part thereof, no suit or action shall be brought to subject such real estate to the payment of such specified sum of money or such legacy, as the case may be, after twenty years from the time when the same shall have been payable, and if the will specifies no time for the payment thereof, it shall be deemed to have been payable immediately upon death of the testator.

    History. Code 1950, § 8-21; 1977, c. 617.

    CASE NOTES

    The case cited below was decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    Applicable to devise for support of third person. —

    Where testator devised a tract of land to his son and also provided that his daughter was to have her home and support on the tract as long as she remained single, it was held that, while the right vested in the daughter by the will is not uniformly regarded as a legacy in the strict sense of that word, it was the legislative intent to make the period of limitation provided by this section applicable to such a provision for support. Davis v. Davis, 190 Va. 468 , 57 S.E.2d 137, 1950 Va. LEXIS 145 (1950).

    § 8.01-255. Time for presenting claim against Commonwealth.

    Any pecuniary claim authorized to be presented under §§ 2.2-814 and 2.2-815 shall be barred unless presented in writing to the comptroller or other authorized person no later than five years after the right to such claim shall arise. If such claim be not thus barred, any action thereon against the Commonwealth must be brought no later than three years after disallowance of such claim in whole or in part.

    History. Code 1950, § 8-752; 1966, c. 452; 1977, c. 617.

    REVISERS’ NOTE

    The statutes of limitations for claims against the State found in former §§ 8-752 and 8-757, are in conflict with each other. Section 8.01-255 retains the three-year period of limitations in former § 8-752 which will apply to every action brought against the Commonwealth arising from a pecuniary claim after a disallowance thereof, in whole or in part. Any such claim must be presented in writing to the Comptroller or other authorized person no later than five years after the right to the claim arises.

    Cross references.

    As to referral of time-barred claims to Governor for such payment as he directs, see § 2.2-816.

    As to the liability of the salary of an officer for a debt he owes the Commonwealth, see § 2.2-2816.

    Law Review.

    For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973).

    For a re-examination of sovereign tort immunity in Virginia, see 15 U. Rich. L. Rev. 247 (1981).

    For note on the abrogation of sovereign immunity in Virginia: The Virginia Tort Claims Act, see 7 G.M.U. L. Rev. 291 (1984).

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Limitation of Actions, § 22.

    CASE NOTES

    The limitations period for claims against the State is tolled by the pursuit of administrative remedies. Randall v. Lukhard, 709 F.2d 257, 1983 U.S. App. LEXIS 26948 (4th Cir. 1983), different results reached on reh'g, 729 F.2d 966, 1984 U.S. App. LEXIS 24590 (4th Cir. 1984).

    Seaman’s maintenance and cure claim. —

    Although contract claims against the Commonwealth of Virginia are governed by a 10 (now three) year statute of limitations, this period is not the appropriate guideline for determining whether a seaman’s maintenance and cure claim should be barred by the doctrine of laches. West v. Marine Resources Comm'n, 330 F. Supp. 966, 1970 U.S. Dist. LEXIS 9663 (E.D. Va. 1970) (decided under prior law).

    § 8.01-255.1. Limitation of action for breach of condition subsequent or termination of determinable fee simple estate.

    No person shall commence an action for the recovery of lands, nor make an entry thereon, by reason of a breach of a condition subsequent, or by reason of the termination of an estate of fee simple determinable, unless the action is commenced or entry is made within ten years after breach of the condition or within ten years from the time when the estate of fee simple determinable has been terminated. Where there has been a breach of a condition subsequent or termination of an estate fee simple determinable which occurred prior to July 1, 1965, recovery of the lands, or an entry may be made thereon by the owner of a right of entry or possibility of reverter, by July 1, 1977. Possession of land after breach of a condition subsequent or after termination of an estate of fee simple determinable shall be deemed adverse and hostile from the first breach of a condition subsequent or from the occurrence of the event terminating an estate of fee simple determinable.

    History. Code 1950, § 8-5.1; 1975, c. 136; 1977, c. 617.

    Law Review.

    For survey of Virginia law on property for the year 1974-1975, see 61 Va. L. Rev. 1834 (1975).

    For article on title examination in Virginia, see 17 U. Rich. L. Rev. 229 (1983).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Adverse Possession, § 2.

    CASE NOTES

    Section is inapplicable to advance acquisitions. —

    In determining whether a successor corporation’s claim for reconveyance of land conveyed by advance acquisition to the Commonwealth of Virginia by a predecessor under § 33.1-90 [now § 33.2-1005 ] was timely, a trial court improperly relied upon § 8.01-248 , subdivision 4 of § 8.01-246 , and § 8.01-255.1 , applicable to actions for re-entry upon land for breach of conditions subsequent, was also inapplicable; these provisions were superseded by the more specific time limitations of § 33.1-90, which has a comprehensive and broad scope that in effect contains its own statute of limitations. Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 , 630 S.E.2d 514, 2006 Va. LEXIS 69 (2006).

    CIRCUIT COURT OPINIONS

    Applicability. —

    Ten-year statute of limitations set forth in § 8.01-255.1 did not apply, and the diocese’s lawsuit was timely filed prior to the expiration of the 15-year statute of limitations for ejectment actions, where the diocese alleged that the parish retained church property after it ceased to be used for Episcopal purposes and refused to convey the property to the diocese upon the declaration of abandonment, and as a result, the diocese had pled a breach of the terms of the fiduciary relationship between the parties rather than a reversionary interest in land. Protestant Episcopal Church in the Diocese of S. Va. v. Church of the Messiah, 103 Va. Cir. 49, 2019 Va. Cir. LEXIS 446 (Chesapeake Aug. 30, 2019).

    § 8.01-255.2. Limitation on motion for new execution after loss of property sold under indemnity bond.

    A motion made pursuant to § 8.01-476 shall be made within five years after the right to make the same shall have accrued.

    History. Code 1950, § 8-408; 1977, c. 617.

    § 8.01-256. As to rights and remedies existing when this chapter takes effect.

    No action, suit, scire facias, or other proceeding which is pending before October 1, 1977, shall be barred by this chapter, and any action, suit, scire facias or other proceeding so pending shall be subject to the same limitation, if any, which would have been applied if this chapter had not been enacted. If a cause of action, as to which no action, suit, scire facias, or other proceeding is pending, exists before October 1, 1977, then this chapter shall not apply and the limitation as to such cause of action shall be the same, if any, as would apply had this chapter not been enacted. Any new limitation period imposed by this chapter, where no limitation previously existed or which is different from the limitation existing before this chapter was enacted, shall apply only to causes or rights of action accruing on or after October 1, 1977.

    History. Code 1950, § 8-37; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-256 clarifies and updates former § 8-37.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1978-1979, see 66 Va. L. Rev. 343 (1980).

    For article, “Civil Rights and ‘Personal Injuries’: Virginia’s Statute of Limitations for Section 1983 Suits,” see 26 Wm. & Mary L. Rev. 199 (1985).

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Limitation of Actions, § 3.

    CASE NOTES

    The purpose of this section was to assure that causes of action which existed or were pending prior to October 1, 1977, would be treated as if this chapter had not been enacted. Strickland v. Simpkins, 221 Va. 730 , 273 S.E.2d 539, 1981 Va. LEXIS 202 (1981).

    The purpose of this section was to maintain the status quo as to an action pending before its enactment and as to causes of action existing then. Sherman v. Hercules, Inc., 636 F. Supp. 305, 1986 U.S. Dist. LEXIS 24992 (W.D. Va. 1986).

    Virginia’s policy favoring prospective application of statutes of limitations is codified both in § 8.01-234 and this section. Section 8.01-234 provides that an action barred by a statute of limitations is not revived by repeal of that limitation provision. This section provides that the 1977 amendments to the limitation provisions are inapplicable to any cause of action that accrued prior to the effective date of those amendments. Saunders v. H.K. Porter Co., 643 F. Supp. 198, 1986 U.S. Dist. LEXIS 22070 (E.D. Va. 1986), rev'd, 843 F.2d 815, 1988 U.S. App. LEXIS 4428 (4th Cir. 1988).

    Limitations periods for causes of action existing before October 1, 1977. —

    Circuit court did not err in granting the plea in bar of the statute of limitations in a civil action concerning alleged sexual abuse that occurred between 1971 and 1975 because the sexual abuse plaintiff suffered as a child inherently caused her injury when it occurred; under the former statutes of limitations, the limitations period on those claims began to run when plaintiff reached the age of majority in March 1975 and expired two years later in March 1977; and all of plaintiff’s causes of action existed before the effective date of Title 8.01 on October 1, 1977, and, thus, § 8.01-249 , regarding the accrual date for a cause of action regarding sexual abuse of a child, did not apply. Haynes v. Haggerty, 291 Va. 301 , 784 S.E.2d 293, 2016 Va. LEXIS 54 (2016).

    A suit in which there has been a final decree is not a pending suit, in the sense of this section. Yarborough v. Deshazo, 48 Va. (7 Gratt.) 374, 1851 Va. LEXIS 17 (1851) (decided under prior law).

    Section does not save remedy by appeal. —

    This section does not operate to save to the party a remedy by way of appeal, etc., to the Supreme Court, allowed by previous acts but taken away by the act in question. McGruder v. Lyons, 48 Va. (7 Gratt.) 233, 1851 Va. LEXIS 1 (1851) (decided under prior law).

    Suit under section 8.01-241 to enforce lien. —

    As § 8.01-241 , which prescribes a limit to the enforcement of a deed of trust, mortgage, or lien reserved to secure the payment of unpaid purchase money was enacted long after the creation of the lien sought to be enforced, in consequence of this section the lien was not barred. Jameson v. Rixey, 94 Va. 342 , 26 S.E. 861 , 1897 Va. LEXIS 81 (1897) (decided under prior law).

    Chapter 5. Venue.

    § 8.01-257. Venue generally.

    It is the intent of this chapter that every action shall be commenced and tried in a forum convenient to the parties and witnesses, where justice can be administered without prejudice or delay. Except where specifically provided otherwise, whenever the word “action(s)” is used in this chapter, it shall mean all actions at law, suits in equity, and statutory proceedings, whether in circuit courts or district courts.

    History. 1977, c. 617.

    REVISERS’ NOTE

    There has been confusion as to the relationship of venue to process and to jurisdiction. E.g., County School Board v. Snead, 198 Va. 100 , 92 S.E.2d 497 (1956).

    Section 8.01-257 is a new provision which restates the common-law concept that venue was merely a convenient place of trial; i.e., is related only to geographical situs of trial. See also § 8.01-258 .

    Unless otherwise provided, the venue provisions of this chapter are to be applicable to all civil actions regardless of the type of proceeding or in which court the action is brought.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

    Michie’s Jurisprudence.

    For related discussion, see 7A M.J. Equity, § 8.

    CASE NOTES

    Presumption of plaintiff’s choice of forum not absolute. —

    While the presumption of correctness attaches to a plaintiff’s choice of forum, it is not absolute. Indeed, the presumption cannot be enhanced simply because the action arises under the Federal Employers’ Liability Act. Norfolk & W. Ry. v. Williams, 239 Va. 390 , 389 S.E.2d 714, 6 Va. Law Rep. 1604, 1990 Va. LEXIS 42 (1990).

    Denial of transfer was abuse of discretion. —

    Denial of defendant railroad’s motion to transfer a Federal Employers’ Liability Act action was an abuse of discretion, where the trial court was presented with sufficient information to show good cause to transfer, including substantial inconvenience to the parties and witnesses, as well as indications of a forum originally selected for not simply justice, but perhaps justice blended with some harassment. Norfolk & W. Ry. v. Williams, 239 Va. 390 , 389 S.E.2d 714, 6 Va. Law Rep. 1604, 1990 Va. LEXIS 42 (1990).

    CIRCUIT COURT OPINIONS

    Venue proper. —

    Because the circuit court had personal jurisdiction over relatives based upon their minimum contacts with Virginia, venue was properly laid in Virginia in a lawyer’s declaratory judgment action under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., seeking a declaratory judgment regarding his rights and responsibilities under powers of attorney; the relatives executed the powers of attorney in Virginia and returned to Virginia to meet again with the lawyer, and by voluntarily creating a continuing relationship with the lawyer, who maintained an office and performed work for the relatives in Virginia, the relatives purposefully availed themselves of the privilege of conducting activities within the Commonwealth. Tabet v. Sheban, 83 Va. Cir. 89, 2011 Va. Cir. LEXIS 75 (Fairfax County June 9, 2011).

    § 8.01-258. Venue not jurisdictional.

    The provisions of this chapter relate to venue — the place of trial — and are not jurisdictional. No order, judgment, or decree shall be voidable, avoided, or subject to collateral attack solely on the ground that there was improper venue; however, nothing herein shall affect the right to appeal an error of court concerning venue.

    History. 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-258 distinguishes between jurisdiction and venue. Historically, the concept of venue has dealt with the place where a suit is commenced and jurisdiction deals with service of process and the power of the court to act. Yet, chapter 3 of former Title 8 made no reference to such a distinction, and confusion arose because of the multiplicity of venue provisions, the employment of “jurisdiction” when “venue” is meant (e.g., former §§ 8-42, 8-133; Lucas v. Biller, 204 Va. 309 , 130 S.E.2d 582 (1963)), and limitations on the service of process (e.g., to the county of commencement in many actions; see former §§ 8-39 and 8-47). Moreover, whenever venue was required to be laid in a certain county and the result of improper venue was dismissal or a void judgment, then the effect of venue was jurisdictional. E.g., former § 8-38 (9) as construed by Davis v. Marr, 200 Va. 479 , 106 S.E.2d 722 (1959).

    Several changes have been made in Title 8.01 to eliminate process and jurisdiction:

    1. Statewide service of process in all civil actions is authorized.
    2. Objections to venue are waived unless raised on or before the day of trial if in a general district court or if in a circuit court within 21 days after service of process commencing the action or within such other time as is fixed for filing of responsive pleadings.
    3. Appropriately filed objection to improper choice of venue results not in dismissal, but rather in transfer of the action to a proper venue with the costs of transfer paid by the party responsible for laying improper venue. See, e.g., §§ 8.01-264 , 8.01-266 .
    4. A judgment is not subject to collateral attack on the sole ground that the suit was commenced in an improper place. However, the right to appeal a ruling of the court concerning venue is preserved. See §§ 8.01-258 and 8.01-267 .

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

    For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Divorce and Alimony, § 36.

    CASE NOTES

    Collateral proceeding. —

    Even if it was assumed that a defendant was a non-resident of Virginia at the time he was adjudicated an habitual offender, where the habitual offender proceeding was brought was a matter of venue, not jurisdiction, and since the court had subject matter jurisdiction over the habitual offender proceeding, the defendant could not collaterally attack the adjudication in a later proceeding. Tyson v. Commonwealth, 2000 Va. App. LEXIS 240 (Va. Ct. App. Mar. 28, 2000).

    § 8.01-259. Application.

    Nothing in this chapter shall apply to venue in the following proceedings:

    1. , (2) [Repealed.]

      In all other actions, venue shall be in accordance with the provisions of this chapter, and, with respect to such actions, in case of conflict between the provisions of this chapter and other provisions outside this chapter relating to venue, all such other provisions are hereby superseded.

    (3) Habeas corpus;

    (4) Tax proceedings, other than those in Title 58.1;

    (5) Juvenile and domestic relations district courts proceedings concerning children; or

    (6) [Repealed.]

    (7) Adoptions.

    (8) [Repealed.]

    History. 1977, c. 617; 1987, c. 567; 1989, c. 556.

    REVISERS’ NOTE

    This section identifies unique proceedings which will remain the subject of special venue statutes. Attempting to consolidate such provisions into the general venue chapter would render the chapter cumbersome and complex. Except for these exceptions, the general venue provisions prescribed in §§ 8.01-260 to 8.01-262 will apply to all other actions.

    Editor’s note.

    Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provided that the amendment to this section by Acts 1993, c. 929, cl. 1, would become effective June 1, 1998, “only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth.” The funding was not provided.

    Michie’s Jurisprudence.

    For related discussion, see 19 M.J. Venue, §§ 5, 6, 8, 16.

    § 8.01-260. Proper venue; preferred forum in certain actions; permissible forums for other actions.

    Except for those actions expressly excluded from the operation of this chapter, and subject to the provisions of §§ 8.01-264 and 8.01-265 , the venue for any action shall be deemed proper only if laid in accordance with the provisions of §§ 8.01-261 and 8.01-262 .

    History. 1977, c. 617.

    REVISERS’ NOTE

    Sections 8.01-260 to 8.01-262 can be considered together. They indicate those forums where venue is proper in any action, other than those excluded by § 8.01-259 .

    Sections 8.01-260 to 8.01-262 are made subject to § 8.01-264 to emphasize that venue not laid in accordance with the provisions of these sections must be objected to before the action will be transferred to a court of proper venue. Also, these three sections are made subject to § 8.01-265 to establish the priority of the forum non conveniens provisions of that section over the more specific venue provisions of §§ 8.01-261 and 8.01-262 . Furthermore, while § 8.01-260 states that venue is proper “only” if laid pursuant to §§ 8.01-261 and 8.01-262 , it should be understood that §§ 8.01-264 and 8.01-265 prevent any such “preferred” or “permissible” venue from being jurisdictional.

    Category A (§ 8.01-261 ), Preferred Venue, generally lists those actions where so-called “mandatory venue” was applicable under former provisions of the Code. However, Category A (§ 8.01-261 ), like Category B (§ 8.01-262 ), does not have jurisdictional effect and improper venue is waived if not affirmatively pleaded.

    Category B (§ 8.01-262 ), Permissible Venue, lists those forums in which venue is proper in actions other than those listed in Category A and other than those excluded by § 8.01-259 ; thus, Category B will be applicable to most actions.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

    Michie’s Jurisprudence.

    For related discussion, see 19 M.J. Venue, § 22.

    CIRCUIT COURT OPINIONS

    Determination of proper venue. —

    Although a husband died in a city, the wife’s wrongful death cause of action was based on a doctor’s alleged negligent medical treatment in a county; therefore, because the city court was not a permissible venue under § 8.01-262 , pursuant to § 8.01-260 , venue had to be transferred to the county court. Sarver v. Prud'Homme, 67 Va. Cir. 315, 2005 Va. Cir. LEXIS 51 (Roanoke May 2, 2005).

    § 8.01-261. Category A or preferred venue.

    In the actions listed in this section, the forums enumerated shall be deemed preferred places of venue and may be referred to as “Category A” in this title. Venue laid in any other forum shall be subject to objection; however, if more than one preferred place of venue applies, any such place shall be a proper forum. The following forums are designated as places of preferred venue for the action specified:

    1. In actions for review of, appeal from, or enforcement of state administrative regulations, decisions, or other orders:
      1. If the moving or aggrieved party is other than the Commonwealth or an agency thereof, then the county or city wherein such party:
        1. Resides;
        2. Regularly or systematically conducts affairs or business activity; or
        3. Wherein such party’s property affected by the administrative action is located.
        4. In case of withdrawal from the Commonwealth by a delinquent taxpayer, wherein venue was proper at the time the taxes in question were assessed or at the time of such withdrawal.
      2. If the moving or aggrieved party is the Commonwealth or an agency thereof, then the county or city wherein the respondent or a party defendant:
      3. If subdivisions 1 a and 1 b do not apply, then the county or city wherein the alleged violation of the administrative regulation, decision, or other order occurred.
      4. [Repealed.]
      5. To sell wastelands;
      6. To establish boundaries;
      7. For unlawful entry or detainer;
      8. For ejectment; or
      9. To remove clouds on title.
    2. Except as provided in subdivision 1 of this section, where the action is against one or more officers of the Commonwealth in an official capacity, the county or city where any such person has his official office.
    3. The county or city wherein the subject land, or a part thereof, is situated in the following actions:
    4. [Reserved.]
    5. In actions for writs of mandamus, prohibition, or certiorari, except such as may be issued by the Supreme Court, the county or city wherein is the record or proceeding to which the writ relates.
    6. In actions on bonds required for public contract, the county or city in which the public project, or any part thereof, is situated.
    7. In actions to impeach or establish a will, the county or city wherein the will was probated, or, if not probated at the time of the action, where the will may be properly offered for probate.
    8. , 9.[Repealed.]

    (1) Resides;

    (2) Regularly or systematically conducts affairs or business activity; or

    (3) Has any property affected by the administrative action.

    a. To recover or partition land;

    b. To subject land to a debt;

    c. To sell, lease, or encumber the land of persons under disabilities;

    10. In actions on any contract between a transportation district and a component government, any county or city any part of which is within such transportation district.

    11. In attachments,

    a. With reference to the principal defendant and those liable with or to him, venue shall be determined as if the principal defendant were the sole defendant; or

    b. In the county or city in which the principal defendant has estate or has debts owing to him.

    12. [Repealed.]

    13. a. In any action for the collection of state, county, or municipal taxes, any one of the following counties or cities shall be deemed preferred places of venue:

    (1) Wherein the taxpayer resides;

    (2) Wherein the taxpayer owns real or personal property;

    (3) Wherein the taxpayer has a registered office, or regularly or systematically conducts business; or

    b. In any action for the correction of an erroneous assessment of state taxes and tax refunds, any one of the following counties or cities shall be deemed preferred places of venue:

    (1) Wherein the taxpayer resides;

    (2) Wherein the taxpayer has a registered office or regularly or systematically conducts business;

    (3) Wherein the taxpayer’s real or personal property involved in such a proceeding is located; or

    (4) The Circuit Court of the City of Richmond.

    14. In proceedings by writ of quo warranto:

    a. The city or county wherein any of the defendants reside;

    b. If the defendant is a corporation, the city or county where its registered office is or where its mayor, rector, president, or other chief officer resides; or

    c. If there is no officer or none of the defendants reside in the Commonwealth, venue shall be in the City of Richmond.

    15. In proceedings to award an injunction:

    a. To any judgment or judicial proceeding of a circuit court, venue shall be in the court in the county or city in which the judgment was rendered or such proceeding is pending;

    b. To any judgment or judicial proceeding of a district court, venue shall be in the circuit court of the county or city in which the judgment was rendered or such proceeding is pending; or

    c. To any other act or proceeding, venue shall be in the circuit court of the county or city in which the act is to be done, or being done, or is apprehended to be done or the proceeding is pending.

    16. [Repealed.]

    17. In disbarment or suspension proceedings against any attorney-at-law, in the county or city where the defendant:

    a. Resides;

    b. Has his principal office or place of practice when the proceeding is commenced;

    c. Resided or had such principal office or place of practice when any misconduct complained of occurred; or

    d. Has any pending case as to which any misconduct took place.

    18. In actions under the Virginia Tort Claims Act, Article 18.1 (§ 8.01-195.1 et seq.) of Chapter 3 of this title:

    a. The county or city where the claimant resides;

    b. The county or city where the act or omission complained of occurred; or

    c. If the claimant resides outside the Commonwealth and the act or omission complained of occurred outside the Commonwealth, the City of Richmond.

    19. In suits for annulment, affirmance, or divorce, the county or city in which the parties last cohabited, or at the option of the plaintiff, in the county or city in which the defendant resides, if a resident of this Commonwealth, and in cases in which an order of publication may be issued against the defendant under § 8.01-316 , venue may also be in the county or city in which the plaintiff resides.

    20. In distress actions, in the county or city when the premises yielding the rent, or some part thereof, may be or where goods liable to distress may be found.

    History. 1977, c. 617; 1978, c. 334; 1979, c. 331; 1985, c. 433; 1987, c. 567; 1988, c. 766; 1989, c. 556; 1990, c. 831; 1993, c. 841.

    REVISERS’ NOTE

    Category A lists certain actions and denominates specific forums as the proper venue for those actions (subject to §§ 8.01-264 and 8.01-265 ). Under former Virginia statutes and case law, in the situations listed in Category A, venue was generally exclusive or mandatory, and timely objection to venue improperly laid would result in dismissal of the action. Also, if no timely objection were brought and such an action proceeded to judgment, such judgment was void and subject to collateral attack. Thus, mandatory venue related more to jurisdiction than to venue.

    To further clarify the distinction between venue and jurisdiction, Category A uses the term “preferred” venue to refer to those situations in which venue had heretofore generally been denominated as “mandatory” or “exclusive.” “Preferred” venue is not jurisdictional since, under §§ 8.01-258 and 8.01-264 , dismissal is not available as a remedy for improper venue and a judgment rendered cannot be voided or collaterally attacked on such grounds. Instead, upon timely objection, the action shall be transferred to a “preferred” forum under this section, and, if no timely objection is made, the venue defect is waived.

    Subsection 1 is § 9-6.14:5 of the Administrative Process Act of 1975. In general, this subsection has eliminated the necessity for citizens being forced to go to Richmond in order to challenge administrative actions or to protect their rights against adverse administrative decisions.

    Subsection 2 changes the venue in former §§ 8-38 (9), 8-40 and 8-752 and establishes venue as the county or city where any defendant public officer has his official office. This provision comports with subsection 1.

    Subsection 3 collects in a single provision those “local actions” where the situs of realty has traditionally been considered the principal place of venue.

    With the exception of subsection 8, subsections 5 through 10 designate preferred venue in certain actions where venue was previously mandatory. Subsection 8 also consolidates venue references of former §§ 64.1-24, 64.1-30 and 64.1-34 (probate of a will is not included; for venue, see § 64.1-75).

    Subsection 11 restates the concept of former § 8-522. The language of former § 8-522 pertaining to the principal defendant “and those jointly liable with him” has been changed to “those liable with or to him.” This change is made to clarify the concept that potential defendants are not only those primarily liable with the principal debtor but also those who are potentially liable to the principal debtor.

    Subsection 12 changes former § 8-703 which required that proceedings involving partition of personal property be brought in the “jurisdiction wherein the property, or the greater part thereof, is located.” To avoid having to determine where the greatest share of the property is to be found, the subsection permits venue where any part of the personal property in question is located. This is the same venue criterion applied to the recovery of personal property; see subsection 5 of § 8.01-262 .

    Because the property to be partitioned may be distinct and separately located from the evidence of that property, (e.g., stock certificate as evidence of corporate ownership), paragraph (b) permits the latter as an additional venue site.

    So that the party seeking to partition personal property will be insured of a forum in which to proceed, if venue cannot lie pursuant to paragraphs a and b, paragraph c permits venue where the plaintiff resides.

    Subsection 13 amends the provisions of Title 58 concerning the venue of suits for collection of State taxes (see §§ 58.1-3940 through 58.1-3960 ) and of those relating to the correction of erroneous assessments and tax refunds. (See §§ 58.1-1821 , 58.1-1833 , and 58.1-3984 .) The amendments generally base venue on the location of the taxpayer instead of on the location of the tax assessment.

    As to the collection of State taxes, the venue provisions of former § 58-1015 are altered by the deletion of the forum where the taxes were assessed or payable; this provision is replaced with paragraph a which locates venue in the county or city where the delinquent taxpayer is located (or owns property) at the time of the action to collect the taxes. Only if the taxpayer has left the Commonwealth does the time of assessment become pertinent as to venue.

    In actions to correct erroneous assessments and tax refunds, the former venue provisions of § 58.1-1825 have been changed; paragraph b makes no reference to the court in which the officer who made the assessment gave bond or makes no distinction as to venue between domestic and foreign corporations. Also, § 58.1-3984 as to venue is amended by the deletion as a proper forum of the county or city wherein the assessment was made.

    Cross references.

    As to the venue for proceedings under the Administrative Process Act, see § 2.2-4003.

    As to venue in criminal prosecutions, see §§ 19.2-244 through 19.2-253 and sections relating to particular offenses.

    As to complaints to impeach or establish a will, see § 64.2-448 .

    Editor’s note.

    Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, provided that the amendment to this section by Acts 1993, c. 929, cl. 1, as amended by Acts 1996, c. 616, cl. 3, would become effective June 1, 1998, “only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth.” The funding was not provided.

    Law Review.

    For 1985 survey of Virginia administrative procedure, see 19 U. Rich. L. Rev. 657 (1985).

    For 1987 survey of Virginia civil procedure and practice, see 21 U. Rich. L. Rev. 667 (1987).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Administrative Law, § 19.

    CASE NOTES

    Analysis

    I.General Consideration.

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    Purpose. —

    An examination of this section makes it clear that the objective sought to be attained by the legislature was to provide an orderly, practical and appropriate method for determining the proper venue of an action or suit, with the purpose in mind to insure to a litigant, insofar as possible, his right to have his case tried in a convenient and familiar jurisdiction. Dowdy v. Franklin, 203 Va. 7 , 121 S.E.2d 817, 1961 Va. LEXIS 213 (1961).

    Venue of all actions is fixed by statute. —

    The venue of all actions in this State, whether local or transitory, is fixed by statute, and the statutes declare where actions against corporations as well as individuals may be brought. Virginia & S.W. Ry. v. Hollingsworth, 107 Va. 359 , 58 S.E. 572 , 1907 Va. LEXIS 48 (1907).

    Venue is a privilege that may be waived. —

    The Code provisions fixing venue confer a privilege upon the defendant to have the action or suit against him heard and determined in the local courts there specified. But it is a privilege which may be waived. Moore v. Norfolk & W. Ry., 124 Va. 628 , 98 S.E. 635 , 1919 Va. LEXIS 153 (1919).

    This section does not confer jurisdiction on a court, but simply fixes the venue by giving the defendant the privilege of having his case heard in a particular county or city; and this privilege may be waived by him. Morgan v. Pennsylvania R.R., 148 Va. 272 , 138 S.E. 566 , 1927 Va. LEXIS 228 (1927) (see Woodhouse v. Burke & Herbert Bank & Trust Co., 166 Va. 706 , 185 S.E. 876 (1936)).

    Rules of Supreme Court do not change law in regard to venue. —

    While the new Rules of Supreme Court prescribe the practice and procedure for prosecuting actions, they do not change the law as it previously existed in regard to venue. Commonwealth ex rel. Duvall v. Hall, 194 Va. 914 , 76 S.E.2d 208, 1953 Va. LEXIS 158 (1953).

    II.Particular Actions and Proceedings.

    Suits by Commonwealth not specially provided for. —

    Except in cases where it is otherwise specially provided, the Commonwealth may prosecute her suits in any of the courts in which other parties may prosecute suits of like character. Commonwealth v. Ford, 70 Va. (29 Gratt.) 683, 1878 Va. LEXIS 5 (1878).

    State Highway Commission. —

    The venue of a suit to enjoin the State Highway Commission (now Commonwealth Transportation Board) and its servants from interfering with a draining ditch is properly laid, under former § 8.01-621 , in the county where the acts complained of were to be done, and of which one of the defendants was resident. State Hwy. Comm'n v. Nock, 138 Va. 212 , 120 S.E. 869 , 1924 Va. LEXIS 23 (1924).

    Appeal from order of the Virginia Board of Nursing. —

    Trial court erred in transferring a nurse’s appeal from an order of the Virginia Board of Nursing from Fairfax County to Henrico County because Fairfax County was the location where the nurse’s alleged violation of an administrative regulation occurred and thus was a Category A venue, whereas Henrico County was a Category B venue because it was the location of the board’s offices and where the board regularly conducted business activity. Prior v. Va. Bd. of Nursing, 2013 Va. App. LEXIS 285 (Va. Ct. App. Oct. 15, 2013).

    Action on sheriff’s official bond. —

    Since former § 8-716, (see now § 8.01-227 ) which provided a remedy by motion on official bonds but restricted the venue to the court to which the official bond was required to be returned, did not prescribe an exclusive remedy for the breach of the condition of a sheriff’s bond, venue of such an action was governed by the provisions of this section and former § 8-716. Commonwealth ex rel. Duvall v. Hall, 194 Va. 914 , 76 S.E.2d 208, 1953 Va. LEXIS 158 (1953).

    An action by a lessor to recover rent, or to recover on agreements for royalties in a lease, is not a suit “to recover land” within the meaning of a venue statute such as this section. Cowan v. Zimmerman, 176 Va. 16 , 10 S.E.2d 555, 1940 Va. LEXIS 229 (1940).

    Subjecting land to payment of debt. —

    Upon a bill filed by a creditor of the M. Co. against the persons constituting that company, in the circuit court of C. county, to subject to the payment of his debt the land of one of them lying in C. county, and mining interests in land lying in F. county, one of the members of the company resided in C. county, and the others were nonresidents of the State. Held, the court had jurisdiction of the cause, both on the ground that a part of the subject sought to be subjected lay in the county of C., and that one of the defendants resided in that county. Clayton v. Hensley, 73 Va. (32 Gratt.) 65, 1879 Va. LEXIS 47 (1879).

    Right to proceeds of sale of land. —

    An equity suit to determine the right to proceeds from foreclosure sale under a deed of trust held properly brought in county where the land was located even though none of the necessary defendants resided there. Bradley v. Canter, 201 Va. 747 , 113 S.E.2d 878, 1960 Va. LEXIS 156 (1960).

    Section creates no ground for attachment. —

    This section relates only to venue of attachments, and creates no ground for attachment. It merely fixes the venue of attachments in those cases in which the issuance of an attachment is authorized under § 8.01-534 , or some other section of this chapter. Winfree v. Mann, 154 Va. 683 , 153 S.E. 837 , 1930 Va. LEXIS 241 (1930).

    III.Injunctions.

    This section applies only to a pure bill of injunction, not to a bill seeking other relief, to which the injunction sought is merely ancillary. Winston v. Midlothian Coal Mining Co., 61 Va. (20 Gratt.) 686, 1871 Va. LEXIS 27 (1871); Muller v. Bayly, 62 Va. (21 Gratt.) 521, 1871 Va. LEXIS 42 (1871) (see also Hough v. Shreeve, 18 Va. (4 Munf.) 490 (1815); Singleton v. Lewis, 20 Va. (6 Munf.) 397 (1819); Pulliam v. Winston, 32 Va. (5 Leigh) 324 (1834); McKenry v. Staunton Hill Club, 12 Va. L. Reg. (n.s.) 97 (1925)).

    Where a bill seeks relief, and asks for an injunction to restrain the sale of real estate in another county, as ancillary to the relief sought, the court of the county or city where the defendants, or some of them reside, has jurisdiction of the cause; and the order for the injunction properly proceeds from the court of that county or city. Winston v. Midlothian Coal Mining Co., 61 Va. (20 Gratt.) 686, 1871 Va. LEXIS 27 (1871).

    This section is directory as to venue. —

    As to the venue for suits for injunctions, this section and § 8.01-627 are directory and not mandatory. Southern Sand & Gravel Co. v. Massaponax Sand & Gravel Corp., 145 Va. 317 , 133 S.E. 812 , 1926 Va. LEXIS 391 (1926).

    Effect when cause is not brought in good faith. —

    If there is any reason to doubt that the chancery cause is brought in good faith for the purposes alleged in the bill, or if the prayer for other relief beyond the injunction is merely colorable and thrown in to give jurisdiction it would not be allowable to take the case out of the provisions of this section. McKenry v. Staunton Hill Club, 12 Va. L. Reg. 97 (1925).

    Injunctions against judicial proceedings. —

    Under this section, the circuit court of a county has jurisdiction of a suit to enjoin the clerk of such county from conveying certain delinquent lands to an applicant for the purchase thereof. Baker v. Briggs, 99 Va. 360 , 38 S.E. 277 , 1901 Va. LEXIS 52 (1901).

    A bill to enjoin levy of execution must be filed in the county in which the judgment was recovered. The circuit court of another county has no jurisdiction of the case. Beckley v. Palmer, 52 Va. (11 Gratt.) 625, 1854 Va. LEXIS 48 (1854).

    Injunction against proceedings in other courts. —

    A circuit court sitting in equity has jurisdiction to issue an injunction against legal proceedings in other courts of equal authority, where the injunction is merely incidental or ancillary to the main relief sought, and such court has the right to return the injunction to its own clerk’s office. McKenry v. Staunton Hill Club, 12 Va. L. Reg. 97 (1925).

    Injunction against other acts or proceedings maintained where done. —

    An injunction cannot be maintained in a county other than that in which the act or proceeding is to be done, or is doing, or apprehended. Norfolk & W.R.R. v. Postal Tel. Cable Co., 88 Va. 932 , 14 S.E. 689 , 1892 Va. LEXIS 50 (1892).

    Venue to enjoin Highway and Transportation Commission in county where act done. —

    The venue under this section of a suit to enjoin the State Highway Commission (now Commonwealth Transportation Board) and another, and their servants, from interfering with a draining ditch is properly laid in the county where the acts which complainant seeks to enjoin were to be done or attempted, and of which one of the defendants was a resident. State Hwy. Comm'n v. Nock, 138 Va. 212 , 120 S.E. 869 , 1924 Va. LEXIS 23 (1924).

    IV.Annulment, Affirmance, or Divorce.

    Editor’s note.

    The cases cited below were decided under former subsection B of § 20-96 and former § 20-98 .

    The venue statutes in divorce proceedings are mandatory and jurisdictional. Netzer v. Reynolds, 231 Va. 444 , 345 S.E.2d 291, 1986 Va. LEXIS 213 (1986).

    As to mandatory nature of former venue statute (former § 20-98 ), see Colley v. Colley, 204 Va. 225 , 129 S.E.2d 630, 1963 Va. LEXIS 137 (1963).

    Filing in wrong venue renders court without jurisdiction. —

    Where petitioner filed a bill in the county where she was residing, defendant resided in another county, and the last place of cohabitation of the parties was in neither of these two counties, the trial court was without jurisdiction to grant a divorce. White v. White, 181 Va. 162 , 24 S.E.2d 448, 1943 Va. LEXIS 164 (1943).

    Where the defendant in a divorce suit is a resident of the State, the jurisdiction of a local court over him must arise from one of two facts: residence within the court’s jurisdiction, or that the parties last cohabited together within such jurisdiction. Richardson v. Richardson, 8 Va. L. Reg. 257 (1922).

    Certain facts are jurisdictional and do not merely concern venue. —

    The jurisdiction of the courts of Virginia to grant divorces being special statutory and limited jurisdiction, the fact that the plaintiff had been domiciled (now resident also) in Virginia for at least one year (now six months) next preceding the commencement of the suit for divorce, that plaintiff was domiciled in Virginia at the time of bringing the suit, that defendant was not a resident of Virginia, and that the plaintiff was a resident of the city or county in which the suit was instituted were jurisdictional, and did not concern merely venue. Chandler v. Chandler, 132 Va. 418 , 112 S.E. 856 , 1922 Va. LEXIS 36 (1922).

    Bill must show venue, which cannot be waived. —

    As the jurisdiction of divorce suits is a special statutory and limited one, it would seem that such jurisdiction must be exercised in conformity to the statute bestowing it. In such cases the question of venue becomes jurisdictional; with the result that not only is no plea in abatement necessary to raise the question of venue, but the bill is demurrable unless it shows on its face that the suit is instituted in its proper statutory venue. It follows that the objection cannot be waived, and the court will mero motu dismiss the bill when defective in this respect. Blankenship v. Blankenship, 125 Va. 595 , 100 S.E. 538 , 1919 Va. LEXIS 48 (1919).

    Whether or not the complainant followed the venue fixed by statute was a question of fact, which the verdict of the jury answered in the affirmative upon ample evidence to support it, and that verdict is conclusive. Towson v. Towson, 126 Va. 640 , 102 S.E. 48 , 1920 Va. LEXIS 16 (1920).

    Domicile and cohabitation are distinctly different concepts and should not be equated or confused. Domicile is not determined solely by the location where people reside, while cohabitation is. Cohabitation does not require an intent to remain somewhere indefinitely, while domicile does. Rock v. Rock, 7 Va. App. 198, 372 S.E.2d 211, 5 Va. Law Rep. 431, 1988 Va. App. LEXIS 104 (1988).

    The word “cohabit” means having dwelt together under the same roof with more or less permanency, and does not signify the having of sexual intercourse as it does in some other statutes. Colley v. Colley, 204 Va. 225 , 129 S.E.2d 630, 1963 Va. LEXIS 137 (1963).

    “Cohabitation” has reference to a continuing condition. —

    Cohabitation, in its proper meaning in the law of divorce, has reference to a continuing condition and not to an act — the permanent or public living or dwelling together in the marital relation. The fact that plaintiff in a divorce suit had been compelled by the cruelty of her husband to flee to another city, where she was on several occasions visited by him, occupying same bed and room with him through fear and against her volition, did not establish such city as the “last place of cohabitation” for the purpose of giving the city’s courts jurisdiction. Rock v. Rock, 7 Va. App. 198, 372 S.E.2d 211, 5 Va. Law Rep. 431, 1988 Va. App. LEXIS 104 (1988).

    Where husband and wife cohabited in both a city and a county, the court held that they last cohabited in the city in which they were intending to live for the winter, and in which they were in fact living when husband took his clothes and left. Rock v. Rock, 7 Va. App. 198, 372 S.E.2d 211, 5 Va. Law Rep. 431, 1988 Va. App. LEXIS 104 (1988).

    Amending decree to show true last place of marital cohabitation. —

    Where there was ample unrefuted “record evidence” that the last place of marital cohabitation, as properly defined in the context of the divorce venue statute, between parties who were divorced in 1966 was in the City of Alexandria, the trial court had the inherent power to allow an appropriate amendment to the bill of complaint to disregard the erroneous conclusion of law contained in the commissioner’s report, stating that the parties last cohabited in Danville, and to amend its final decree of divorce nunc pro tunc, in order to make the record “speak the truth.” Netzer v. Reynolds, 231 Va. 444 , 345 S.E.2d 291, 1986 Va. LEXIS 213 (1986).

    CIRCUIT COURT OPINIONS

    Injunctive relief. —

    Defense counsel’s objection to venue was rejected where although injunctive relief was the central relief sought, the complaint sought damages and attorney’s fees and costs, and thus, it was not a pure bill of injunction for purposes of this section. MeadWestvaco Corp. v. Bates, 91 Va. Cir. 509, 2013 Va. Cir. LEXIS 200 (Chesterfield County Aug. 1, 2013).

    Court’s own motion. —

    Circuit court, on its own motion, notified the parties to a divorce proceeding that it was transferring the proceeding to another circuit court because venue in the circuit court was not proper pursuant to subdivision 19 of § 8.01-261 , as it had not been 60 days since the date the wife accepted service of process, and neither the bill of complaint nor any other document suggested that the venue was proper in the circuit court as the husband lived in another circuit, the wife lived in another state, and the parties last cohabited in another circuit. Sakowski v. Sakowski, 65 Va. Cir. 249, 2004 Va. Cir. LEXIS 211 (Roanoke July 24, 2004).

    Preferred venue. —

    Because patient in a medical malpractice suit resided in Charlottesville, the Charlottesville Circuit Court considered itself “Category A,” or, the preferred venue. Bradley v. Kellum, 55 Va. Cir. 397, 2001 Va. Cir. LEXIS 304 (Charlottesville July 18, 2001).

    Motion to transfer denied. —

    Husband’s motion to transfer venue was denied as: (1) the husband resided in Florida, (2) the wife resided in Prince William County, Virginia, (3) the parties lived together in Florida, (4) the wife alleged to have remained a bona fide resident and domiciliary of Virginia since before the marriage, and (5) the husband failed to show good cause for transferring the case to another forum while the wife showed good cause for retaining venue. Fitzpatrick v. Fitzpatrick, 71 Va. Cir. 219, 2006 Va. Cir. LEXIS 114 (Fairfax County June 28, 2006).

    In a civil suit, the motion to transfer venue filed by defendants was denied because they failed to file any venue objections or motions within 21 days after the entry of the order granting leave to file the amended complaint, as required by § 8.01-264 , therefore, they waived any right to challenge venue. Argos Utils. Corp. v. Perrin, 83 Va. Cir. 344, 2011 Va. Cir. LEXIS 233 (Roanoke Sept. 9, 2011).

    Venue found to be improper. —

    The court determined that it was not the proper venue for the action pursuant to §§ 8.01-261 and 8.01-262 , because none of the parties had their principal place of business in the city, no chief officer or president of any party resided in the city, and the alleged cause of action did not arise in the city, and plaintiff did not engage in dilatory delay, as plaintiff filed a notice of hearing within the seven-day time frame provided by Va. Sup. Ct. R. 4:15(b). Xspedius Communs. v. Cricket Techs., 71 Va. Cir. 310, 2006 Va. Cir. LEXIS 259 (Hopewell July 26, 2006).

    § 8.01-262. Category B or permissible venue.

    In any actions to which this chapter applies except those actions enumerated in Category A where preferred venue is specified, one or more of the following counties or cities shall be permissible forums, such forums being sometimes referred to as “Category B” in this title:

    1. Wherein the defendant resides or has his principal place of employment or, if the defendant is not an individual, wherein its principal office or principal place of business is located;
    2. Wherein the defendant has a registered office, has appointed an agent to receive process, or such agent has been appointed by operation of the law; or, in case of withdrawal from the Commonwealth by such defendant, wherein venue herein was proper at the time of such withdrawal;
    3. Provided there exists any practical nexus to the forum including, but not limited to, the location of fact witnesses, plaintiffs, or other evidence to the action, wherein the defendant regularly conducts substantial business activity, or in the case of withdrawal from the Commonwealth by such defendant, wherein venue herein was proper at the time of such withdrawal;
    4. Wherein the cause of action, or any part thereof, arose;
    5. In actions to recover or partition personal property, whether tangible or intangible, the county or city:
      1. Wherein such property is physically located; or
      2. Wherein the evidence of such property is located;
      3. And if subdivisions a and b do not apply, wherein the plaintiff resides.
    6. In actions against a fiduciary as defined in § 8.01-2 appointed under court authority, the county or city wherein such fiduciary qualified;
    7. In actions for improper message transmission or misdelivery wherein the message was transmitted or delivered or wherein the message was accepted for delivery or was misdelivered;
    8. In actions arising based on delivery of goods, wherein the goods were received;
    9. If there is no other forum available in subdivisions 1 through 8 of this category, then the county or city where the defendant has property or debts owing to him subject to seizure by any civil process; or
    10. Wherein any of the plaintiffs reside if (i) all of the defendants are unknown or are nonresidents of the Commonwealth or if (ii) there is no other forum available under any other provisions of § 8.01-261 or this section.

    History. 1977, c. 617; 1978, c. 414; 1979, c. 331; 1985, c. 213; 1999, c. 73; 2004, c. 979; 2013, cc. 71, 103.

    REVISERS’ NOTE

    Category B, permissible venue, is applicable to most actions — specifically to those actions for which no preferred forum is designated in Category A, § 8.01-261 , and which are not excluded by § 8.01-259 . The provision that “one or more” of the forums listed in subsections 1 through 9 are permissible, gives the plaintiff the choice of the forums enumerated. Subsection 10 is a last resort provision, giving the plaintiff a forum where no forum is available under any other provision of §§ 8.01-260 to 8.01-262 .

    Together with § 8.01-263 , subsection 1 incorporates former § 8-38 (1) (i.e., the residence of any defendant) and adds the defendant’s place of employment. Section 16.1-76 provides for venue at the defendant’s place of employment in actions in general district courts, and subsection 1 provides the same venue for all courts.

    Subsection 2 incorporates the substance of former § 8-38 (2) and (6) and extends these provisions to all defendants, i.e., it provides plaintiffs with at least one forum against partnerships, unincorporated associations, and individuals, as well as corporations, which are engaged in activities requiring registration or appointment of agents for service of process.

    The provision for “principal office” in former § 8-38 (2) is deleted as redundant because it is covered in § 8.01-262 (3); similarly, the provision for venue where a corporation’s “mayor, rector, president or other chief officer resides” was deleted since subsection 1 of § 8.01-262 and subsections 3 and 10 of § 8.01-262 , combine to provide at least one forum for the plaintiff against resident or nonresident defendants generally.

    While subsection 3 has no statutory antecedent, it establishes a logical forum when considered in the context of fairness and convenience of the parties.

    Subsection 4 incorporates former § 8-39. With the adoption of statewide service of process, § 8.01-292 , venue based on where the cause of action arose will no longer be subject to a potential process limitation. Cf. former § 8-47.

    Subsection 5 reflects common-law practice in that the most convenient forum for such actions is often the forum wherein such property is located.

    Subsection 6 is essentially former § 8-38 (5). [Venue under this subsection is the same as venue based on a fiduciary’s “residence” under proposed subsection 1. Dowdy v. Franklin, 203 Va. 7 , 121 S.E.2d 817 (1961). Venue based on the fiduciary’s place of employment under proposed subsection 1 can, however, be different than that based on the place of qualification or “residence.”]

    Subsection 7 incorporates § 56-474 by providing forums in actions against telephone and telegraph companies for improper transmission of messages.

    Subsection 8 extends § 3.1-720 to make the place of receipt a place of permissible venue in any action based on the delivery of goods.

    Subsection 9 is primarily applicable to in personam actions where seizure of property is used as a means of bringing a nonresident defendant before the court. The forums already available to the plaintiff under subsections 1 through 8 will usually encompass the place where the defendant has property or debts subject to seizure. Only when no other forum is available under these subsections will the location of defendant’s debts or property become a basis of venue.

    Subsection 10 provides the plaintiff with at least one forum, i.e., in the county or city where he resides when all the defendants are nonresidents or are unknown and when there is no other forum available under any other provision of §§ 8.01-260 to 8.01-262 . This subsection includes the former venue provisions of the Virginia long-arm statutes, § 8-81.4, and the nonresident and unknown motor vehicle statutes, former §§ 8-38 (6a) and (6b), 38.1-381 (e).

    The 1999 amendment, in subdivision 10, substituted “Wherein any plaintiffs reside if” for “In actions in which,” inserted the clause (i) and (ii) designations, and deleted “then the county or city where any of the plaintiffs reside” following “or this section.”

    The 2004 amendments.

    The 2004 amendment by c. 979 substituted “substantial” for “affairs or” in subdivision 3.

    The 2013 amendments.

    The 2013 amendments by cc. 71 and 103 are identical, and substituted “not an individual, wherein its principal office or principal place of business is located” for “a corporation, wherein its mayor, rector, president or other chief officer resides” at the end of subdivision 1; added the proviso at the beginning of subdivision 3; and in subdivision 5, changed the clause designators from (a) through (c) to a. through c. and substituted “subdivisions a and b” for “subdivisions 5 (a) and 5 (b)” in subdivision 5 c.; and made a minor stylistic change.

    Law Review.

    For 1985 survey of Virginia civil procedure and practice, see 19 U. Rich. L. Rev. 679 (1985).

    For 1995 survey of civil practice and procedure, see 29 U. Rich. L. Rev. 897 (1995).

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For annual survey of cases dealing with product liability, including cases involving civil procedure, see 40 U. Rich. L. Rev. 241 (2005).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For comment, ‘The Imperfect but Necessary Lawsuit: Why Suing State Judges Is Necessary to Ensure That Statutes Creating a Private Cause of Action Are Constitutional,” see 52 U. Rich. L. Rev. 495 (2018).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assault and Battery, § 31.

    CASE NOTES

    Analysis

    Editor’s note.

    Many of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    An action for breach of contract may be brought in the jurisdiction where the contract is made, or in that in which a breach occurs. Big Seam Coal Corp. v. Atlantic C.L.R.R., 196 Va. 590 , 85 S.E.2d 239, 1955 Va. LEXIS 129 (1955).

    An action against a liability insurer by the injured party under the contract provision required by § 38.1-380 (see now § 38.2-2200) may be brought in the county or city where execution on the judgment against the insured is returned unsatisfied. Virginia Farm Bureau Mut. Ins. Co. v. Saccio, 204 Va. 769 , 133 S.E.2d 268, 1963 Va. LEXIS 211 (1963).

    Action for breach of collective bargaining agreement. —

    An individual employee and member of a labor union may sue his employer for a breach of a collective bargaining agreement between the union and the employer in a State court. Pearman v. Industrial Rayon Corp., 207 Va. 854 , 153 S.E.2d 227, 1967 Va. LEXIS 146 (1967).

    Where cause of action on modified contract arises. —

    A corporation, at its home office, employed an agent to sell its stock. Subsequently it informed the agent by telegram, in answer to a telegram from him, that it had no more stock for sale, but that he could continue to sell stock in conjunction with another, who had an option on all the stock left, and divide commissions with him. It was held that this was not a new contract, but a modification of the original agreement, and that an action to recover commissions on stock sold before and after the telegram must be brought within the jurisdiction of the home office of the corporation and could not be maintained in the jurisdiction where the telegram was received by the agent. Ferguson & Hutter v. Grottoes Co., 92 Va. 316 , 23 S.E. 761 , 1895 Va. LEXIS 119 (1895).

    Delivery of carrier of goods in bad condition. —

    Upon a shipment of horses from St. Louis, Mo., to Norfolk, Va., the failure to deliver safely at Norfolk gives rise to a cause of action at that place. Norfolk & W. Ry. v. Crull, 112 Va. 151 , 70 S.E. 521 , 1911 Va. LEXIS 65 (1911).

    Where the principal defendant is a nonresident, suit may be brought in a county where one or more of the other defendants reside, though the attached real estate of the nonresident defendant lies in another county. Porter v. Young, 85 Va. 49 , 6 S.E. 803 , 1888 Va. LEXIS 10 (1888).

    Order of service of resident and nonresident defendants is immaterial. —

    Where suit was brought in the court of law and chancery in the city of the residence of one defendant, that court had jurisdiction under this section, and the process could be executed upon the other defendants in any county or city in the State, either before or after service of the resident defendant. It was sufficient if process had been properly executed on the resident defendant at the time of the trial. Brame v. Nolen, 139 Va. 413 , 124 S.E. 299 , 1924 Va. LEXIS 119 (1924).

    Suit against husband for separate maintenance. —

    Where a husband’s bill in a divorce suit alleged that he was a resident of Arlington County, the venue of his wife’s suit for separate maintenance against him was properly laid in the circuit court of that county. Westfall v. Westfall, 196 Va. 97 , 82 S.E.2d 487, 1954 Va. LEXIS 205 (1954).

    An action for false arrest and false imprisonment may be brought, under this section, in the county of imprisonment, where defendants were served, although they resided and the arrest was made in another county. Shugart v. Cruise, 260 F. 36, 1919 U.S. App. LEXIS 2030 (4th Cir. 1919).

    Confinement in penitentiary of another state does not change residence. —

    The residence of a citizen of this State is not changed by reason of his conviction and confinement in the penitentiary of another state. Guarantee Co. of N. Am. v. First Nat'l Bank, 95 Va. 480 , 28 S.E. 909 , 1898 Va. LEXIS 4 (1898).

    Police officer was entitled to transfer of venue in a personal injury suit based on a vehicular collision because he had relocated outside a city prior to commencement of the suit and the fact that he traveled to the city more than once a month and stored furniture in his prior residence did not establish that he resided in the city or conducted substantial business there. Hawthorne v. VanMarter, 279 Va. 566 , 692 S.E.2d 226, 2010 Va. LEXIS 54 (2010).

    Individual defendant. —

    Because the trial court did not conclude that the corporate veil could be pierced, a corporation’s activities in a city were not attributable to the shareholder; therefore, the trial court erred by denying the shareholder’s objection to venue under subdivision 3 for an assault allegedly committed by the shareholder in the shareholder’s individual capacity. Barnett v. Kite, 271 Va. 65 , 624 S.E.2d 52, 2006 Va. LEXIS 3 (2006) (decided prior to 2004 amendment to subdivision 3).

    Appeal from order of the Virginia Board of Nursing. —

    Trial court erred in transferring a nurse’s appeal from an order of the Virginia Board of Nursing from Fairfax County to Henrico County because Fairfax County was the location where the nurse’s alleged violation of an administrative regulation occurred and thus was a Category A venue, whereas Henrico County was a Category B venue because it was the location of the board’s offices and where the board regularly conducted business activity. Prior v. Va. Bd. of Nursing, 2013 Va. App. LEXIS 285 (Va. Ct. App. Oct. 15, 2013).

    II.Corporations.

    Declaration in the certificate of incorporation as to location of the principal office is conclusive on that point, and the motive of the corporation in so declaring is immaterial. Loyd's Executorial Trustees v. City of Lynchburg, 113 Va. 627 , 75 S.E. 233 , 1912 Va. LEXIS 82 (1912).

    A corporation holding land in different counties, if so empowered by its charter, may be proceeded against by attachment in any county wherein such land may be, though its principal office is located or its chief officer resides elsewhere. B & O R.R. v. Gallahue's Adm'rs, 53 Va. (12 Gratt.) 655, 1855 Va. LEXIS 51 (1855).

    Foreign corporations. —

    An action against a foreign corporation may be brought where the statutory agent of the corporation resides. It cannot be brought in another county or city, and have process sent to the county or city in which the statutory agent resides. Deatrick v. State Life Ins. Co., 107 Va. 602 , 59 S.E. 489 , 1907 Va. LEXIS 78 (1907).

    Interstate railroad. —

    A foreign railroad company engaged in interstate commerce, operating a part of its road in this State and owning permanent real property in the State, is so far a resident in the counties or cities in which it operates its road, that it is within the purview of this section, and may there be sued alone or in conjunction with other persons, natural or artificial, residing elsewhere in the State. Seaboard Air Line Ry. v. J.E. Bowden & Co., 144 Va. 154 , 131 S.E. 245 , 1926 Va. LEXIS 238 (1926).

    Subdivision 4 applies to suits against corporations. —

    A cause of action growing out of a corporation’s contracts, acts, negligences or omissions may arise in a different county or city from the location of its principal office, and suit may be brought where the cause of action arose without reference to the residence of the defendant corporation. B & O R.R. v. Gallahue's Adm'rs, 53 Va. (12 Gratt.) 655, 1855 Va. LEXIS 51 (1855) (see Virginia & S.W. Ry. v. Hollingsworth, 107 Va. 359 , 58 S.E. 572 (1907)).

    CIRCUIT COURT OPINIONS

    Applicability. —

    Parties agreed that there was no preferred venue for the case, so the permissible venue statute applied. Clarke v. Med. Facilities of Am., 106 Va. Cir. 462, 2020 Va. Cir. LEXIS 493 (Norfolk Dec. 30, 2020).

    Direct mail advertising. —

    While a store’s direct mail advertising could support venue in a city circuit court, the testimony established that the involvement was so unspecified as to be de minimis ; therefore, the case was transferred to a county circuit court. Cleere v. Petsmart, Inc., 64 Va. Cir. 481, 2004 Va. Cir. LEXIS 187 (Richmond June 17, 2004).

    Defendant did not “regularly” conduct affairs or business activity. —

    Change in venue from the city where a wrongful death action was filed to the county where a former city resident who was a defendant in the action had moved was not barred by evidence that he still traveled through the city on his way to work and shopped, dined, and took classes there because, although substantial, these activities did not indicate that he regularly conducted affairs in the city within the meaning of § 8.01-262 ; that phrase refers to usual and customary activities and does not refer to the quantity of activity conducted in an area. Hawthorne v. Lavinder, 71 Va. Cir. 244, 2006 Va. Cir. LEXIS 80 (Roanoke June 29, 2006).

    Where no officer of a corporation lived in a forum selected by a personal injury plaintiff, the corporation’s registered agent was located in another county, and its business activities in the selected forum did not rise to the level of regularly conducting substantial business activity, transfer of the personal injury case to the other county was appropriate under subdivision 3 of § 8.01-262 . Garland v. Shoosmith Bros., Inc., 73 Va. Cir. 515, 2007 Va. Cir. LEXIS 204 (Hopewell Aug. 13, 2007).

    Practical-nexus requirement. —

    Viewed in the context of the evolution of subdivision 3 of § 8.01-262 , the practical-nexus requirement ensures that, in addition to a defendant’s substantial business activity, there is simply some practical nexus between the case and the forum; significantly, this analysis is only to evaluate permissible venue, and for this reason, the practical-nexus bar is low. Clarke v. Med. Facilities of Am., 106 Va. Cir. 462, 2020 Va. Cir. LEXIS 493 (Norfolk Dec. 30, 2020).

    Presence in Norfolk of the individual defendant, a fact witness whose testimony likely would relate to liability, including the patient’s care while at the center, satisfied the subdivision 3 of § 8.01-262 requirement of some practical nexus; because the company that controlled the center conducted substantial business activity in Norfolk and there existed some practical nexus between the case and Norfolk, Norfolk was a permissible venue. Clarke v. Med. Facilities of Am., 106 Va. Cir. 462, 2020 Va. Cir. LEXIS 493 (Norfolk Dec. 30, 2020).

    Defendant “regularly” conducted business. —

    Venue was proper under § 8.01-262 , as a defendant regularly conducted business in the forum and two defendants resided there. Lynchburg Communs. Sys. v. Ohio State Cellular Phone Co., 61 Va. Cir. 82, 2003 Va. Cir. LEXIS 31 (Roanoke Jan. 22, 2003).

    “Substantial business activity.” —

    For “substantial business activity” purposes, a company’s revenues and expenditures in a forum ought to be viewed both in relative and absolute terms rather than merely applying a percentage. Hardison v. Norfolk Dredging Co., 108 Va. Cir. 223, 2021 Va. Cir. LEXIS 141 (Norfolk June 16, 2021).

    Venue proper where one defendant resided. —

    Based on the current allegations, one individual was a proper defendant and a Norfolk resident, and thus Norfolk was a permissible venue under the statute because the individual resided there; plaintiff alleged that the individual was responsible for implementing the facilities policies and enforcing the appropriate standard of care, which was breached by the individual’s failure to prevent the patient from developing new pressure sores. Clarke v. Med. Facilities of Am., 106 Va. Cir. 462, 2020 Va. Cir. LEXIS 493 (Norfolk Dec. 30, 2020).

    Venue did not exist where a driver traveled through city on a highway. —

    Venue based on conducting business, under subdivision 3 of § 8.01-262 , did not lie in a city because: (1) the times a driver was in the city, he was on a highway, passing through transporting things on a truck to get to North Carolina; (2) even if this could have been considered business activity, traveling through the city did not implicate venue as a purposeful selection of a place where one could think that one could have been sued; and (3) the law did not envision that a party should avoid use of a highway to preclude venue for a suit against him. McNeill v. Rojas, 74 Va. Cir. 106, 2007 Va. Cir. LEXIS 172 (Richmond Aug. 16, 2007).

    Transfer of venue. —

    Although venue of an action brought by nine railroad employees under the Federal Employer’s Liability Act was proper in the trial court because the defendant railroad did business in that area, venue was transferred to other courts as to four of the employees, as the employees lived and had worked in those areas, the causes of action arose in those areas, and most of the witnesses were from those areas. McClure v. Norfolk & W. Ry. Co., 54 Va. Cir. 322, 2000 Va. Cir. LEXIS 604 (Roanoke Dec. 27, 2000).

    Because a park’s limited business activity within one county did not constitute the substantial business activity required by § 8.01-262 , pursuant to § 8.01-265 , the matter could be transferred to an adjacent county where the park’s president resided, the park’s registered agent had his office, and the alleged incident took place. Sandler v. Wintergreen Ptnrs., Inc., 71 Va. Cir. 155, 2006 Va. Cir. LEXIS 82 (Albemarle County June 21, 2006).

    When a nursing home patient sued the general partner of the limited liability partnership which owned the nursing home, as well as current and former nursing home employees, venue was proper where suit was filed. under subdivision 3 of § 8.01-262 , because: (1) the general partner did substantial business in the jurisdiction where suit was filed; and (2) no good cause to transfer venue was shown, under § 8.01-265 , as the jurisdiction in which suit was filed was in close proximity to the jurisdiction to which a transfer was sought. Gibson v. Medical Facilities of Am., Inc., 79 Va. Cir. 329, 2009 Va. Cir. LEXIS 269 (Norfolk Sept. 25, 2009).

    In a civil suit, the motion to transfer venue filed by defendants was denied because they failed to file any venue objections or motions within 21 days after the entry of the order granting leave to file the amended complaint, as required by § 8.01-264 , therefore, they waived any right to challenge venue. Argos Utils. Corp. v. Perrin, 83 Va. Cir. 344, 2011 Va. Cir. LEXIS 233 (Roanoke Sept. 9, 2011).

    Determination of proper venue in wrongful death action. —

    Although a husband died in a city, the wife’s wrongful death cause of action was based on a doctor’s alleged negligent medical treatment in a county; therefore, because the city court was not a permissible venue under § 8.01-262 , pursuant to § 8.01-260 , venue had to be transferred to the county court. Sarver v. Prud'Homme, 67 Va. Cir. 315, 2005 Va. Cir. LEXIS 51 (Roanoke May 2, 2005).

    Pursuant to the second clause of former § 1-16 [now § 1-239], the 2004 amendment to § 8.01-262 applied to a product liability personal injury case; venue in Norfolk was thus improper since neither the manufacturer nor the distributor had any facility there. Spruill v. Jugs, Inc., 66 Va. Cir. 75, 2004 Va. Cir. LEXIS 348 (Norfolk Sept. 29, 2004).

    Choice of venue proper in defamation action. —

    Defendant’s motion to transfer venue pursuant to § 8.01-265 was denied, because the venue chosen by plaintiff for a defamation action was permissible under § 8.01-262 , and defendant failed to show good cause for a transfer, as the forum chosen by plaintiff was adjacent to the forum sought by defendant, and the distance imposed no substantial inconvenience. Kollman v. Jordan, 60 Va. Cir. 293, 2002 Va. Cir. LEXIS 394 (Chesterfield County Oct. 29, 2002).

    Venue was proper in Gloucester court, even though a defamation claim arose for purposes of subdivision 6 of § 8.01-262 in Alexandria since the cause of action accrued when a wife published a letter to an attorney in the Virginia State Bar’s Alexandria office. Rilee v. Rilee, 74 Va. Cir. 90, 2007 Va. Cir. LEXIS 179 (Richmond July 26, 2007).

    Venue for defamation action was proper in Gloucester court under subdivision 1 of § 8.01-262 as a wife resided there; Gloucester was also proper under § 8.01-265 as the parties and the witnesses resided there, and the Gloucester court could better regulate the timing of the proceedings to consider any judgment in which the parties’ financial resources had to be considered. Rilee v. Rilee, 74 Va. Cir. 90, 2007 Va. Cir. LEXIS 179 (Richmond July 26, 2007).

    Former husband’s cause of action alleging a former wife defamed him through the publication of her Op-Ed in a newspaper arose in Virginia, and thus, the prerequisite to dismiss based on forum non conveniens was not met; publication occurred in Virginia because it occurred when the Op-Ed was uploaded to the internet on the newspaper’s website, and it was only then that the allegedly defamatory statements were read by non-interested third parties. Depp v. Heard, 102 Va. Cir. 324, 2019 Va. Cir. LEXIS 269 (Fairfax County July 25, 2019), dismissed in part, 107 Va. Cir. 80, 2021 Va. Cir. LEXIS 1 (Fairfax County Jan. 4, 2021).

    Former husband’s cause of action alleging a former wife defamed him through the publication of her Op-Ed in a newspaper arose in Virginia, and thus, the prerequisite to dismiss based on forum non conveniens was not met since the place of the wrong was the place where the act of publication of the former wife’s Op-Ed to the internet occurred; the former wife submitted her Op-Ed to the newspaper to be published online, and using servers located in Virginia, the newspaper posted it to the internet. Depp v. Heard, 102 Va. Cir. 324, 2019 Va. Cir. LEXIS 269 (Fairfax County July 25, 2019), dismissed in part, 107 Va. Cir. 80, 2021 Va. Cir. LEXIS 1 (Fairfax County Jan. 4, 2021).

    Venue proper in fraud in the inducement claim. —

    Objection to venue by a subcontractor in a sub-subcontractor’s action against it, arising from a construction project dispute, lacked merit because venue was proper with respect to the sub-subcontractor’s fraud in the inducement claim, as alleged misrepresentations occurred in the City of Norfolk and at least some of the economic injury occurred there. Specialty Prods. v. Demolition Servs., 87 Va. Cir. 325, 2013 Va. Cir. LEXIS 93 (Norfolk Dec. 12, 2013).

    Venue change was proper because a defendant had moved. —

    Change in venue in a wrongful death action from the city where the action was filed to a county where a former city resident who was a defendant in the action had moved was proper under § 8.01-262 because evidence that the former city resident still received mail, stored personal items, and retained a key to his former home was insufficient to demonstrate that his move was incomplete when the action was filed or that he had moved to escape venue in the city; he had completed a change of address form at the post office, he stored items at his former home only because of a continuing friendship with the former girlfriend who lived there, and there was no evidence that he exercised control over the former home after his move to the county. Hawthorne v. Lavinder, 71 Va. Cir. 244, 2006 Va. Cir. LEXIS 80 (Roanoke June 29, 2006).

    Venue was proper in the county where an accident occurred. —

    Venue was properly changed to a county from the city where a wrongful death action was filed, not simply because a former city resident who was a defendant in the action had moved to that county before the action was filed, but also because the accident which gave rise to the action took place in the county; it was therefore both natural and proper for the matter to be transferred to the county. Hawthorne v. Lavinder, 71 Va. Cir. 244, 2006 Va. Cir. LEXIS 80 (Roanoke June 29, 2006).

    Venue proper. —

    Venue for all cases was proper in Norfolk pursuant to subdivision 3 of § 8.01-262 because while it was true that the houses and, in some cases, the builders and developers were in the requested venues, two companies, both of which were defendants in all cases, maintained offices and conducted substantial business in the City of Norfolk. Chinese Drywall Cases, 80 Va. Cir. 69, 2010 Va. Cir. LEXIS 14 (Norfolk Jan. 22, 2010).

    Defendant conducted substantial business activity in Fairfax County, plus defendant admitted Fairfax County was a proper venue; the requisite nexus to Fairfax was further enhanced beyond defendant’s business activities in that plaintiff had an office in the chosen forum, and thus Fairfax County was a permissible venue for adjudication of this case. Commonwealth v. NC Fin. Solutions of Utah, LLC, 100 Va. Cir. 232, 2018 Va. Cir. LEXIS 602 (Fairfax County Oct. 28, 2018).

    Venue in an action to vacate an arbitration award was proper in a city other than the county in which the action was filed because that was where a corporate competitor being sued had a principal place of business, and it was not inconvenient to contractors suing the competitors or any other party. Comfort Sys. of Va. v. P.J. Potter Enters., 104 Va. Cir. 239, 2020 Va. Cir. LEXIS 19 (Chesapeake Feb. 11, 2020).

    Defendant’s motion to transfer venue was denied; defendant had a contract for up to $2.8 million to perform maintenance in Norfolk, which alone was substantial business activity as required by the statute, plus plaintiffs, two witnesses, and two treating physicians were located in Norfolk. Hardison v. Norfolk Dredging Co., 108 Va. Cir. 223, 2021 Va. Cir. LEXIS 141 (Norfolk June 16, 2021).

    An action for breach of contract. —

    City of Norfolk was an improper venue for a sub-subcontractor’s breach of contract claim, arising from a construction dispute, because the contract was formed in Manassas and any breach occurred there as well. Specialty Prods. v. Demolition Servs., 87 Va. Cir. 325, 2013 Va. Cir. LEXIS 93 (Norfolk Dec. 12, 2013).

    Venue found to be improper. —

    The court determined that it was not the proper venue for the action pursuant to §§ 8.01-261 and 8.01-262 , because none of the parties had their principal place of business in the city, no chief officer or president of any party resided in the city, and the alleged cause of action did not arise in the city, and plaintiff did not engage in dilatory delay, as plaintiff filed a notice of hearing within the seven-day time frame provided by Va. Sup. Ct. R. 4:15(b). Xspedius Communs. v. Cricket Techs., 71 Va. Cir. 310, 2006 Va. Cir. LEXIS 259 (Hopewell July 26, 2006).

    Venue was not proper in the county in which an action to vacate an arbitration award was filed because (1) contractors did not show competitors regularly conducted substantial business activity there, as the only evidence of the competitors’ business activity there was dropping off checks and documents at the contractors’ offices there, and (2) no individual competitor lived there. Comfort Sys. of Va. v. P.J. Potter Enters., 104 Va. Cir. 239, 2020 Va. Cir. LEXIS 19 (Chesapeake Feb. 11, 2020).

    Motion to transfer venue denied. —

    Motion to transfer venue under subdivision 3 of § 8.01-262 was denied as a company did not rebut the presumption that plaintiff’s forum was correct where the company presented only an affidavit and an Internet printout that did not state that it was exhaustive that purported to show that the company’s business activities in Norfolk accounted for only six percent of its total revenue. Hernandez v. E. Coast Barge & Boat Co., 85 Va. Cir. 103, 2012 Va. Cir. LEXIS 87 (Norfolk June 25, 2012).

    Defendants’ motion for transfer of venue to the Circuit Court for the City of Williamsburg and County of James City was denied because defendants regularly conducted substantial business activity in the City of Newport News, Virginia; plaintiff had a practical nexus in the form of potential witnesses who resided and/or were employed in and/or of potential documentary electronic exhibits located in the City of Newport News, Virginia; and the travel of 30 miles between Williamsburg and Newport News was not a substantial inconvenience to defendants. Rauchfuss v. Peninsula Radiological Assocs., 94 Va. Cir. 8, 2016 Va. Cir. LEXIS 60 (Newport News Apr. 28, 2016).

    In a wrongful death case, the distances as alleged by defendants were not such as to create substantial inconvenience, and based on the mileage chart prepared by plaintiff, it appeared that Nelson County was the more convenient venue. The circuit found that Nelson County was a permissible venue and was not an inconvenient venue and therefore the circuit court found that there was not good cause to transfer venue. Stevens v. Medical Facilities of Am. XXXII, 98 Va. Cir. 376, 2018 Va. Cir. LEXIS 122 (Nelson County June 27, 2018).

    Allocation of burden of proof. —

    Sussex County was a permissible venue, as that was where the alleged injuries occurred; plaintiff filed his action in Norfolk, however, and the burden rested on defendants to establish that the chosen venue was not a permissible venue. Clarke v. Med. Facilities of Am., 106 Va. Cir. 462, 2020 Va. Cir. LEXIS 493 (Norfolk Dec. 30, 2020).

    § 8.01-262.1. Place for bringing action under a contract related to construction.

    1. Where a party whose principal place of business is in the Commonwealth enters into a contract on or after July 1, 1997, to design, manage construction of, construct, alter, repair, maintain, move, demolish, or excavate, or supply goods, equipment, or materials for the construction, alteration, repair, maintenance, movement, demolition, or excavation of a building, structure, appurtenance, road, bridge, or tunnel which is physically located in the Commonwealth, any cause of action arising under such contract may be brought in the jurisdiction where the construction project is located, or such other jurisdiction where the venue is proper under the provisions of this chapter. Any provision in the contract mandating that such action be brought in a location outside the Commonwealth shall be unenforceable.
    2. The forum for any arbitration proceedings required in such a contract entered into on or after July 1, 1991, shall be in this Commonwealth. If the contract provides for arbitration proceedings outside the Commonwealth, such provision is unenforceable and arbitration proceedings shall be in the county or city where the work is to be performed, unless the parties agree to conduct the proceedings elsewhere within the Commonwealth. The enforceability of the remaining provisions of the arbitration agreement and the method of selecting a forum for the conduct of the arbitration proceedings are as provided in this Code, the Federal Arbitration Act, and any applicable rules of arbitration.

    History. 1991, c. 489; 1997, c. 424; 1999, c. 130.

    Editor’s note.

    The Federal Arbitration Act, referred to in this section, is codified at 9 U.S.C.S. § 1, et seq.

    The 1999 amendment added the last sentence in subsection A.

    Michie’s Jurisprudence.

    For related discussion, see 19 M.J. Venue, § 7.

    CIRCUIT COURT OPINIONS

    Applicability of forum selection clause. —

    Out-of-state supplier which entered into a contract to supply materials for a Virginia construction contract was not prevented from enforcing its forum selection clause. Colonna's Shipyard, Inc. v. Alpha Pipe Co., 2012 Va. Cir. LEXIS 210 (Norfolk Aug. 27, 2012).

    § 8.01-263. Multiple parties.

    In actions involving multiple parties, venue shall not be subject to objection:

    1. If one or more of the parties is entitled to preferred venue, and such action is commenced in any such forum; provided that in any action where there are one or more residents and one or more nonresidents or parties unknown, venue shall be proper (preferred or permissible, as the case may be) as to at least one resident defendant;
    2. In all other cases, if the venue is proper as to any party.

    History. 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-263 is necessary in order for the other venue provisions to function effectively in multiple party situations. Thus, by subsection 1, where any party is entitled to a preferred forum under § 8.01-261 , venue will not be transferred pursuant to §§ 8.01-264 , 8.01-265 , if the action is commenced in a preferred forum to which any other party is entitled pursuant to § 8.01-261 .

    The proviso to subsection 1 reflects former § 8-38 (7), and gives preference to resident defendants when both resident and nonresident defendants are involved in an action.

    Where subsection 1 does not apply, subsection 2 simplifies matters by recognizing no priorities. It allows the action to be maintained so long as venue is proper as to any one party.

    Law Review.

    For comment, ‘The Imperfect but Necessary Lawsuit: Why Suing State Judges Is Necessary to Ensure That Statutes Creating a Private Cause of Action Are Constitutional,” see 52 U. Rich. L. Rev. 495 (2018).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assault and Battery, § 31.

    CIRCUIT COURT OPINIONS

    Venue proper as to one defendant, proper as to all defendants. —

    When a nursing home patient sued the general partner of the limited liability partnership that owned the nursing home, as well as current and former nursing home employees, the former employee’s motion to transfer venue failed because: (1) venue was found to be proper as to the general partner; and (2) once venue was found to be proper as to one defendant, venue was proper as to all defendants. Gibson v. Medical Facilities of Am., Inc., 79 Va. Cir. 329, 2009 Va. Cir. LEXIS 269 (Norfolk Sept. 25, 2009).

    Motion to transfer venue denied. —

    In a civil suit, the motion to transfer venue filed by defendants was denied because they failed to file any venue objections or motions within 21 days after the entry of the order granting leave to file the amended complaint, as required by § 8.01-264 , therefore, they waived any right to challenge venue. Argos Utils. Corp. v. Perrin, 83 Va. Cir. 344, 2011 Va. Cir. LEXIS 233 (Roanoke Sept. 9, 2011).

    § 8.01-264. Venue improperly laid; objection.

    1. Venue laid in forums other than those designated by this chapter shall be subject to objection, but no action shall be dismissed solely on the basis of venue if there be a forum in the Commonwealth where venue is proper. In actions where venue is subject to objection, the action may nevertheless be tried where it is commenced, and the venue irregularity shall be deemed to have been waived unless the defendant objects to venue by motion filed, as to actions in circuit courts, within twenty-one days after service of process commencing the action, or within the period of any extension of time for filing responsive pleadings fixed by order of the court.  As to actions in general district courts, a motion objecting to venue, which may be in the form of a letter or other written communication, shall be filed with or received by the court on or before the day of trial. Waiver by any defendant shall not constitute waiver for any other defendant entitled to object to venue. Such motion shall set forth where the defendant believes venue to be proper, may be in writing, and shall be promptly heard by the court upon reasonable notice by any party.  The court shall hear the motion only on the basis of the action as commenced against the original defendant and not on the basis of subsequent joinder or intervention of any other party. If such motion is sustained, the court shall order the venue transferred to a proper forum under the appropriate provisions of §§ 8.01-195.4 , 8.01-260 , 8.01-261 and 8.01-262 and shall so notify each party.
    2. In the event a party defendant whose presence created venue is dismissed after the parties are at issue, then the remaining parties defendant may object to venue within ten days after such dismissal if the remaining defendants can demonstrate that the dismissed defendant was not properly joined or was added as a party defendant for the purpose of creating venue. However, nothing in this section shall impair the right of the court under § 8.01-265 to retain the action for trial on motion of a plaintiff and for good cause shown.
    3. The initial pleading, in any action brought in a general district court, shall inform the defendant of his right to object to venue if the action is brought in any forum other than that specified in §§ 8.01-261 , 8.01-262 , or § 8.01-263 .  The information to the defendant shall be stated in clear, nontechnical language reasonably calculated to accomplish the purpose of this subsection.
    4. Where a suit described in subdivision 19 of § 8.01-261 is filed in a venue that is not described therein, the court, on its own motion and upon notice to all parties, may transfer the suit to a venue described in such subdivision provided the transfer is implemented within sixty days after service of process upon all parties.

    History. 1977, c. 617; 1982, c. 601; 1985, cc. 433, 492; 1986, cc. 396, 403; 1987, c. 709; 1991, c. 692.

    REVISERS’ NOTE

    Section 8.01-264 changes former law and requires that where an appropriate objection is made to improperly laid venue, the case shall be transferred to a proper forum rather than be dismissed. The party responsible for improper venue is liable for costs. § 8.01-266 .

    The section provides that improper venue, whether “preferred” or “permissible,” is waived if the defendant does not make timely objection. The result is that improper venue is not a fatal defect.

    Objection to venue shall be made by motion setting forth where venue is proper. See also § 8.01-276 . It shall be promptly heard by the court. Objection is timely if made on or before the day of trial if the action is commenced in a general district court. Similarly, objection to venue is timely if made within 21 days after service of process commencing an action in a circuit court or within such other time that such court may order for filing responsive pleadings. This changes former law; e.g., this objection is timely even if other pleadings are filed by the defendant prior to the expiration of the time for objection. If a defendant’s motion is not timely, the objection shall be waived but in cases of multiple defendants, the waiver shall not be binding on any other defendant whose motion is timely filed.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

    For 1985 survey of Virginia civil procedure and practice, see 19 U. Rich. L. Rev. 679 (1985).

    For survey on domestic relations in Virginia for 1989, see 23 U. Rich. L. Rev. 561 (1989).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, see “Civil Practice and Procedure,” 26 U. Rich. L. Rev. 679 (1992).

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Automobiles, § 11.

    CASE NOTES

    Applicability. —

    Circuit court erred when it found that an indenture trustee sought timely enforcement of forum selection clauses because the trustee’s motion purportedly complied with the statutory requirements. Instead, the statute did not address or apply to motions to dismiss based upon forum selection clauses, and provided no statutory excuse for the trustee’s delay in asserting its alleged contractual right to a different venue. RMBS Recovery Holdings, I, LLC v. HSBC Bank USA, N.A., 297 Va. 327 , 827 S.E.2d 762, 2019 Va. LEXIS 51 (2019).

    Moving party has burden of bringing transfer motion to attention of trial court. —

    This section, states that a venue objection and transfer motion “shall be promptly heard by the court”; the moving party, has the burden of promptly bringing the matter to the trial court’s attention. Faison v. Hudson, 243 Va. 413 , 417 S.E.2d 302, 8 Va. Law Rep. 2754, 1992 Va. LEXIS 32 (1992).

    The court did not err in denying the permit holder’s motion to change venue because no defendant filed a timely objection to venue. The original defendant, the Department, failed to object to venue within twenty-one days of residents commencing the appeal as required by this section, and thus waived any venue objection. The permit holder intervened in the case after the twenty-one day period for objecting to venue had passed. Thus no timely objection to venue was filed. Residents Involved in Saving Env't, Inc. v. Commonwealth, Dep't of Envtl. Quality, 22 Va. App. 532, 471 S.E.2d 796, 1996 Va. App. LEXIS 434 (1996), aff'd in part, vacated in part, 254 Va. 278 , 492 S.E.2d 431, 1997 Va. LEXIS 94 (1997).

    Whether to transfer or retain the case is a matter resting within the discretion of the trial court. Faison v. Hudson, 243 Va. 413 , 417 S.E.2d 302, 8 Va. Law Rep. 2754, 1992 Va. LEXIS 32 (1992).

    Trial court’s decision to retain case was not an abuse of discretion. —

    Where the motion to transfer venue was not heard until approximately one month before the scheduled trial, good cause existed for retaining the case, and therefore, the trial court did not abuse its discretion in so ruling. Faison v. Hudson, 243 Va. 413 , 417 S.E.2d 302, 8 Va. Law Rep. 2754, 1992 Va. LEXIS 32 (1992).

    Waiver. —

    An objection to venue is waived if not raised in a timely manner. Tyson v. Commonwealth, No. 2965-98-3 (Ct. of Appeals Mar. 28, 2000).

    CIRCUIT COURT OPINIONS

    Objections to venue. —

    Physicians, defendants in a medical malpractice suit, were entitled to object to the court that was considered the preferred venue, that was the place of residence of the patient. Bradley v. Kellum, 55 Va. Cir. 397, 2001 Va. Cir. LEXIS 304 (Charlottesville July 18, 2001).

    Wife who filed an action to have a previously granted divorce decree set aside because venue was not proper in the court which granted it waived that issue by not raising it during the divorce proceedings. Price v. Price, 58 Va. Cir. 73, 2001 Va. Cir. LEXIS 394 (Richmond Nov. 20, 2001), aff'd, No. 3266-01-2, 2002 Va. App. LEXIS 636 (Va. Ct. App. Oct. 22, 2002).

    Time for objections. —

    Corporation’s objection to venue in an arbitration proceeding was untimely under § 8.01-264 , as it came more than a year after service of process. Hilton v. Quantum Commun. Group, Inc., 59 Va. Cir. 163, 2002 Va. Cir. LEXIS 83 (Fairfax County June 5, 2002).

    Default judgment. —

    Default judgment was entered in a contract dispute where a corporation did not file a response within the 21-day period, a church stated a breach of contract cause of action, venue was waived and jurisdiction and notice were proper. New Life Christian Church v. Dynabilt Tech. Int'l Corp., 59 Va. Cir. 399, 2002 Va. Cir. LEXIS 367 (Norfolk Aug. 29, 2002).

    Objection denied. —

    Defendant’s objection to venue under § 8.01-264 was overruled, because that section only applied if a plaintiff had mislaid venue, and the plaintiff in the instant defamation action laid venue properly. Kollman v. Jordan, 60 Va. Cir. 293, 2002 Va. Cir. LEXIS 394 (Chesterfield County Oct. 29, 2002).

    Motion to transfer granted. —

    Third driver was entitled to transfer venue of a passenger’s personal injury action (the passenger was in the first vehicle that was stopped due to traffic) the to the city where the accident occurred because the passenger’s inability to cite per se negligence or a factual claim of negligence left her complaint against the second driver naked of any support other than a conclusion that he was added for the purpose of creating venue, and it would be an abuse of discretion for the court to retain the case solely because of the nearness of the trial date, thereby ignoring the injustice of forcing the third driver to defend himself in an improper venue to which the passenger was never entitled. Weaver v. Jackson, 105 Va. Cir. 437, 2020 Va. Cir. LEXIS 666 (Petersburg July 31, 2020).

    Motion to transfer denied. —

    Husband’s motion to transfer venue was denied as: (1) the husband resided in Florida, (2) the wife resided in Prince William County, Virginia, (3) the parties lived together in Florida, (4) the wife alleged to have remained a bona fide resident and domiciliary of Virginia since before the marriage, and (5) the husband failed to show good cause for transferring the case to another forum while the wife showed good cause for retaining venue. Fitzpatrick v. Fitzpatrick, 71 Va. Cir. 219, 2006 Va. Cir. LEXIS 114 (Fairfax County June 28, 2006).

    In a civil suit, the motion to transfer venue filed by defendants was denied because they failed to file any venue objections or motions within 21 days after the entry of the order granting leave to file the amended complaint, as required by § 8.01-264 , therefore, they waived any right to challenge venue. Argos Utils. Corp. v. Perrin, 83 Va. Cir. 344, 2011 Va. Cir. LEXIS 233 (Roanoke Sept. 9, 2011).

    Transfer of venue not warranted. —

    There was no basis to transfer venue in a sub-subcontractor’s multi-claim action, arising from a construction dispute, because the subcontractor did not show that it would be substantially inconvenienced by the original venue and it did not show good cause for transferring the case. Specialty Prods. v. Demolition Servs., 87 Va. Cir. 325, 2013 Va. Cir. LEXIS 93 (Norfolk Dec. 12, 2013).

    Dismissal not available. —

    Dismissal for improper venue under § 8.01-264 simply is not available, as the section only provides for a transfer of forum within the Commonwealth. Sayre v. Sayre, 2016 Va. Cir. LEXIS 90 (Norfolk June 30, 2016).

    § 8.01-265. Change of venue by court.

    In addition to the provisions of § 8.01-264 and notwithstanding the provisions of §§ 8.01-195.4 , 8.01-260 , 8.01-261 and 8.01-262 , the court wherein an action is commenced may, upon motion by any party and for good cause shown, (i) dismiss an action brought by a person who is not a resident of the Commonwealth without prejudice under such conditions as the court deems appropriate if the cause of action arose outside of the Commonwealth and if the court determines that a more convenient forum which has jurisdiction over all parties is available in a jurisdiction other than the Commonwealth or (ii) transfer the action to any fair and convenient forum having jurisdiction within the Commonwealth. Such conditions as the court deems appropriate shall include, but not be limited to, a requirement that the defendant agree not to assert the statute of limitations as a defense if the action is brought in a more convenient forum within a time specified by the court. The court, on motion of any party and for good cause shown, may retain the action for trial. Except by agreement of all parties, no action enumerated in Category A, § 8.01-261 , shall be transferred to or retained by a forum not enumerated in such category. Good cause shall be deemed to include, but not to be limited to, the agreement of the parties or the avoidance of substantial inconvenience to the parties or the witnesses, or complying with the law of any other state or the United States.

    The provisions of (i) of this section shall not apply to causes of action which accrue under § 8.01-249(4) .

    History. Code 1950, §§ 8-38, 8-157, 8-158; 1950, p. 78; 1954, c. 660; 1956, c. 432; 1956, Ex. Sess., c. 11; 1960, c. 569; 1964, c. 502; 1968, c. 386; 1977, c. 617; 1979, c. 662; 1982, c. 601; 1991, c. 530; 2007, c. 105.

    REVISERS’ NOTE

    Section 8.01-265 consolidates the forum non conveniens transfer provisions of former §§ 8-38 (10) and 8-157 (a) and readopts former § 8-158 which was repealed in 1966. Venue may be generally transferred if it is improperly laid under §§ 8.01-260 , 8.01-261 and 8.01-262 and objection is made by the defendant pursuant to § 8.01-264 . However, if the venue is preferred and is properly laid under § 8.01-261 , the court may transfer the case only upon agreement of all parties. If an action is not within § 8.01-261, though the venue may be improperly laid the court may, on motion of the plaintiff and for good cause, retain the action for trial. The definition of good cause encompasses former § 8-38 (10) (provision for transfer where judge is interested in case) as well as the convenience of witnesses and parties and the interest of justice of former § 8-157 (a). The adjectives “fair and convenient” used to describe the transferee forum give more guidance than “any other forum” used in former § 8-157 (a). The words “having jurisdiction” connote jurisdiction over the subject matter of the proceeding; and no court in the Commonwealth is prevented by any provision of this chapter from having such jurisdiction.

    The 2007 amendments.

    The 2007 amendment by c. 105, in the first paragraph, substituted “party” for “defendant” in the first sentence and “any party” for “a plaintiff” in the third sentence and added “or complying with the law of any other state or the United States” in the last sentence.

    Law Review.

    For 1985 survey of Virginia civil procedure and practice, see 19 U. Rich. L. Rev. 679 (1985).

    For 1991 survey of civil practice and procedure, see 25 U. Rich. L. Rev. 663 (1991).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assault and Battery, § 31.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Constitutionality. —

    This section violates neither the Fourteenth Amendment equal protection clause nor the due process clause of the Va. Const., Art. I, § 11, or its prohibition against special or private laws, under Va. Const., Art. IV, §§ 14 and 15. Caldwell v. Seaboard Sys. R.R., 238 Va. 148 , 380 S.E.2d 910, 5 Va. Law Rep. 2859, 1989 Va. LEXIS 100 (1989), cert. denied, 493 U.S. 1095, 110 S. Ct. 1169, 107 L. Ed. 2d 1071, 1990 U.S. LEXIS 915 (1990) (decided prior to the 1991 amendment).

    The attenuating effects, if any, upon interstate commerce inherent in the application of this section are slight, and are clearly overborne by a legitimate state interest in providing maximum access to its courts; thus, interstate commerce is not impermissibly burdened by this section. Caldwell v. Seaboard Sys. R.R., 238 Va. 148 , 380 S.E.2d 910, 5 Va. Law Rep. 2859, 1989 Va. LEXIS 100 (1989), cert. denied, 493 U.S. 1095, 110 S. Ct. 1169, 107 L. Ed. 2d 1071, 1990 U.S. LEXIS 915 (1990) (decided prior to the 1991 amendment).

    This section does not provide for the transfer of a case from one forum to another based upon the standard that one forum is fair and substantially more convenient than another forum. City of Danville v. Virginia State Water Control Bd., 18 Va. App. 594, 446 S.E.2d 466, 11 Va. Law Rep. 30, 1994 Va. App. LEXIS 441 (1994).

    Court lacked authority to transfer. —

    As a circuit court lacked subject matter jurisdiction over a father’s motion to modify child support because the support order was entered by another circuit court, neither § 8.01-265 nor § 20-88.49 authorized the trial court to transfer the case, rather than dismiss it. Williams v. Williams, 61 Va. App. 170, 734 S.E.2d 186, 2012 Va. App. LEXIS 387 (2012).

    Attorney inconvenience not within good cause definition. —

    This section defines good cause as “the avoidance of substantial inconvenience to the parties or the witnesses.” It does not mention the inconvenience of their attorneys. If inconvenience for the attorneys for the parties was sufficient to cause a transfer of venue, the venue statutes could be manipulated because the parties could select an attorney located in the forum of their choice and circumvent the plain intent of the venue statute. Therefore, the inconvenience caused by one or two trips, at most, to Lynchburg from Richmond in the instant case to argue motions and the merits of the case was not adequate good cause to transfer the case under this section. City of Danville v. Virginia State Water Control Bd., 18 Va. App. 594, 446 S.E.2d 466, 11 Va. Law Rep. 30, 1994 Va. App. LEXIS 441 (1994).

    Presumption of plaintiff’s choice of forum not absolute. —

    While the presumption of correctness attaches to a plaintiff’s choice of forum, it is not absolute. Indeed, the presumption cannot be enhanced simply because the action arises under the Federal Employers’ Liability Act. Norfolk & W. Ry. v. Williams, 239 Va. 390 , 389 S.E.2d 714, 6 Va. Law Rep. 1604, 1990 Va. LEXIS 42 (1990) (decided prior to the 1991 amendment).

    Forum selection clause. —

    Circuit court abused its discretion in the dismissal of an amended complaint on the basis of forum selection clauses because the indenture trustee’s delay in asserting the forum selection clauses, while actively continuing litigation, resulted in a waiver of the right to rely upon that contractual provision. RMBS Recovery Holdings, I, LLC v. HSBC Bank USA, N.A., 297 Va. 327 , 827 S.E.2d 762, 2019 Va. LEXIS 51 (2019).

    Good cause on basis of forum non conveniens. —

    Circuit court did not abuse its discretion in finding that good cause did not exist to dismiss litigation in Virginia based upon the principles of forum non conveniens because the court appropriately considered the practicalities that made a trial easy, expeditious, and inexpensive. RMBS Recovery Holdings, I, LLC v. HSBC Bank USA, N.A., 297 Va. 327 , 827 S.E.2d 762, 2019 Va. LEXIS 51 (2019).

    Court lacked authority to transfer divorce action. —

    Where appellant consented to venue in the one county when she initially filed her bill of complaint there, and because appellee did not object to the selection of venue, he waived his privilege to have the suit transferred to a different county pursuant to this section and effectively agreed to venue in the original county of filing. On these procedural facts, the trial court was not required to act sua sponte to transfer the suit to a different county, and moreover, had no statutory authority to do so. Decker v. Decker, 12 Va. App. 536, 405 S.E.2d 12, 7 Va. Law Rep. 2675, 1991 Va. App. LEXIS 114 (1991) (decided prior to the 1991 amendment).

    Denial of transfer was abuse of discretion. —

    Denial of defendant railroad’s motion to transfer a Federal Employers’ Liability Act action was an abuse of discretion, where the trial court was presented with sufficient information to show good cause to transfer, including substantial inconvenience to the parties and witnesses, as well as indications of a forum originally selected for not simply justice, but perhaps justice blended with some harassment. Norfolk & W. Ry. v. Williams, 239 Va. 390 , 389 S.E.2d 714, 6 Va. Law Rep. 1604, 1990 Va. LEXIS 42 (1990) (decided prior to the 1991 amendment).

    II.Decisions Under Prior Law.

    Editor’s note.

    Prejudice as grounds for removal. —

    This section deals primarily with the transfer of causes from one court to another, where a change of venue is made necessary by local prejudice. Taylor v. Taylor, 185 Va. 126 , 37 S.E.2d 886, 1946 Va. LEXIS 186 (1946).

    Local prejudice of such a character as to prevent a fair and impartial trial in the county or district where the action is brought is a well recognized ground for a change of venue. Ramsay v. Harrison, 119 Va. 682 , 89 S.E. 977 , 1916 Va. LEXIS 142 (1916).

    Consent of parties equivalent to motion. —

    The consent of all parties to the removal of a cause from one court having jurisdiction to another court of like jurisdiction is equivalent to a motion, by such parties for such removal, and guardian ad litem of infant parties may give their consent. Lemmon v. Herbert, 92 Va. 653 , 24 S.E. 249 , 1896 Va. LEXIS 27 (1896).

    Affidavits and evidence in support of motion. —

    An application by a defendant for a change of venue, on the ground of general prejudices existing against him in the town where the cause is to be tried, should be supported by the affidavits of disinterested individuals. Boswell v. Flockheart, 35 Va. (8 Leigh) 364, 1837 Va. LEXIS 25 (1837).

    The affidavits in support of the motion for a change of venue, especially where opposed by counter affidavits of disinterested persons, should state the facts and circumstances tending to show that a fair and impartial trial cannot be had where the case is pending and not the mere belief or opinion of the affiants. Less than this is not sufficient under the statute permitting a change of venue for good cause shown. Ramsay v. Harrison, 119 Va. 682 , 89 S.E. 977 , 1916 Va. LEXIS 142 (1916).

    Mere belief that fair trial cannot be had is insufficient. —

    Under this section it is error to change venue in a civil proceeding because of the mere belief of a party or his witnesses that he cannot have a fair trial in the jurisdiction where the case is pending. There must be proof that a fair trial cannot be had. MacPherson v. Green, 197 Va. 27 , 87 S.E.2d 785, 1955 Va. LEXIS 191 (1955).

    A case filed in a court which lacks subject matter jurisdiction over the controversy cannot be transferred to the proper court. Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    Laying venue in wrong court. —

    Although this section permits some transfers of cases from one court to another, a plaintiff who lays venue in the wrong court will have his case dismissed and not transferred. Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 1970 U.S. App. LEXIS 6010 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S. Ct. 1526, 28 L. Ed. 2d 867, 1971 U.S. LEXIS 2318 (1971).

    Prejudice held insufficient for transfer. —

    In an action against a railroad for a personal injury, the fact that a prejudice exists against the company in the city in which the action is pending because the company had removed its shops from the city and abandoned the city as a terminal, in violation of a contract with the city, is not sufficient to justify a change of venue of the action, especially when the witnesses by whom the feeling against the company is shown express the opinion that a perfectly fair and impartial jury to try the case can be gotten in the city. Atlantic & D. Ry. v. Reiger, 95 Va. 418 , 28 S.E. 590 , 1897 Va. LEXIS 50 (1897).

    CIRCUIT COURT OPINIONS

    Statute authorized a court to dismiss an action without prejudice, if the action could be litigated in another more convenient forum. Tanner v. Mobil Oil Corp., 54 Va. Cir. 90, 2000 Va. Cir. LEXIS 550 (Fairfax County 2000).

    Permissible venue. —

    Where part of a cause of action arose in one county, a contractor was located there, and much of the contractor’s work in regards to an alleged contract occurred there, the county was a permissible venue. In re Instrumentation Servs. v. Town of Victoria, 60 Va. Cir. 92, 2002 Va. Cir. LEXIS 295 (Shenandoah County June 19, 2002).

    Venue for defamation action was proper in Gloucester court under subdivision 1 of § 8.01-262 as a wife resided there; Gloucester was also proper under § 8.01-265 as the parties and the witnesses resided there, and the Gloucester court could better regulate the timing of the proceedings to consider any judgment in which the parties’ financial resources had to be considered. Rilee v. Rilee, 74 Va. Cir. 90, 2007 Va. Cir. LEXIS 179 (Richmond July 26, 2007).

    Change of venue of a personal injury action arising from an automobile accident was not required, even though neither the injured party nor the tortfeasor resided in the chosen forum, and the accident did not occur in the chosen forum, because there was no showing of good cause requiring a change of venue. Champigny v. Bayly, 55 Va. Cir. 381, 2001 Va. Cir. LEXIS 301 (Norfolk July 2, 2001).

    Good cause requirement applies to each provision. —

    Nothing in the statute provides a separate good cause standard for each provision; the requirement and definition of good cause applies to both dismissal under clause (i) and transfer under clause (ii), and, therefore, any standard regarding substantial inconvenience applies to both provisions of the statute. Littleton v. Norfolk Southern Ry. Co., 87 Va. Cir. 333, 2013 Va. Cir. LEXIS 92 (Norfolk Dec. 12, 2013).

    Impact of COVID-19 restrictions too speculative. —

    As a result of the unpredictability of the spread of COVID-19 and the current roll-out and administration of related vaccines, attempting to predict any disparate impact on civil jury trials in Virginia courthouses was simply too speculative; although the ability of a court to conduct a civil jury trial, and the associated delay very well could come within the purview of practical problems to be considered when deciding whether to transfer a case for convenience, under the circumstances here it had no appreciable impact on the court’s analysis. Clarke v. Med. Facilities of Am., 106 Va. Cir. 462, 2020 Va. Cir. LEXIS 493 (Norfolk Dec. 30, 2020).

    Failure to show good cause. —

    Physicians, who moved to transfer venue on a medical malpractice case, failed to show good cause as to why the matter should be transferred from Charlottesville to Richmond. Bradley v. Kellum, 55 Va. Cir. 397, 2001 Va. Cir. LEXIS 304 (Charlottesville July 18, 2001).

    Department store, which had been sued for defamation by an employee of a supplier it had accused of shoplifting, had the burden of showing good cause for dismissal. It failed to do so since its only argument was that New York had a greater nexus, and that alone did not provide good cause. Birdsall v. Federated Dep't Stores, Inc., 70 Va. Cir. 290, 2006 Va. Cir. LEXIS 45 (Fairfax County Mar. 14, 2006).

    When a nursing home patient sued the general partner of the limited liability partnership which owned the nursing home, as well as current and former nursing home employees, venue was proper where suit was filed. under subdivision 3 of § 8.01-262 , because: (1) the general partner did substantial business in the jurisdiction where suit was filed; and (2) no good cause to transfer venue was shown, under § 8.01-265 , as the jurisdiction in which suit was filed was in close proximity to the jurisdiction to which a transfer was sought. Gibson v. Medical Facilities of Am., Inc., 79 Va. Cir. 329, 2009 Va. Cir. LEXIS 269 (Norfolk Sept. 25, 2009).

    Good cause to dismiss a former employee’s action against railroads had not been shown because dismissal would only transfer the inconvenience from witnesses in Ohio and Pennsylvania to witnesses in Virginia; because potential witnesses resided in the current forum and, the fact that witnesses resided elsewhere, even a majority of witnesses, was insufficient to rebut the presumption in favor of the employee’s choice of forum. Littleton v. Norfolk Southern Ry. Co., 87 Va. Cir. 333, 2013 Va. Cir. LEXIS 92 (Norfolk Dec. 12, 2013).

    Defendant did not prove good cause to transfer the case to the Circuit Court for the City of Richmond; that both parties had counsel in Richmond was not a factor to be considered in determining good cause for transfer, plus defendant did not proffer substantial inconvenience to the parties were the case to be tried in Fairfax beyond the statement that more customers lived in the Richmond metropolitan area than in Fairfax County. Commonwealth v. NC Fin. Solutions of Utah, LLC, 100 Va. Cir. 232, 2018 Va. Cir. LEXIS 602 (Fairfax County Oct. 28, 2018).

    Defendants failed to satisfy the burden of demonstrating good cause to transfer the matter to Sussex County because, although the practical nexus between the case and Norfolk was minimal, they did not show the necessary substantial inconvenience to the parties if the case was tried in Norfolk; the parties would not suffer substantial inconvenience by trying the case in Norfolk. Clarke v. Med. Facilities of Am., 106 Va. Cir. 462, 2020 Va. Cir. LEXIS 493 (Norfolk Dec. 30, 2020).

    Railroad failed to make the requisite showing of good cause to have a railroad worker’s personal injury case dismissed based on the worker’s injury having occurred in North Carolina and any likely witnesses being in North Carolina because the railroad, which had its corporate headquarters in the venue, did not adequately demonstrate that a different venue would have avoided substantial inconvenience to the parties or to the witnesses to overcome the presumption of correctness attached to the worker’s choice of the venue in Virginia. Domby v. Norfolk S. Ry. Co., 2021 Va. Cir. LEXIS 125 (Norfolk June 3, 2021).

    Substantial inconvenience shown. —

    Based on the array of witnesses as a whole, the driver made out a case of substantial inconvenience of the parties and witnesses for a personal injury trial in the court of the passenger’s choosing. England v. Jarrett, 58 Va. Cir. 515, 2002 Va. Cir. LEXIS 170 (Richmond May 30, 2002).

    Transfer of venue granted. —

    Because a park’s limited business activity within one county did not constitute the substantial business activity required by § 8.01-262 , pursuant to § 8.01-265 , the matter could be transferred to an adjacent county where the park’s president resided, the park’s registered agent had his office, and the alleged incident took place. Sandler v. Wintergreen Ptnrs., Inc., 71 Va. Cir. 155, 2006 Va. Cir. LEXIS 82 (Albemarle County June 21, 2006).

    Transfer from Virginia to North Carolina of a Federal Employers’ Liability Act action filed by the estate of a railroad employee was warranted because the injury arose in North Carolina, the decedent was employed in North Carolina, the decedent’s estate was in North Carolina, and the majority of the known potential witnesses were residents of North Carolina and having the trial in Virginia would be a substantial inconvenience for the witnesses. Budd v. Norfolk Southern Ry., 90 Va. Cir. 227, 2015 Va. Cir. LEXIS 62 (Norfolk Apr. 28, 2015).

    Transfer of venue denied. —

    Defendant’s motion to transfer venue pursuant to § 8.01-265 was denied, because the venue chosen by plaintiff for a defamation action was permissible under § 8.01-262 , and defendant failed to show good cause for a transfer, as the forum chosen by plaintiff was adjacent to the forum sought by defendant, and the distance imposed no substantial inconvenience. Kollman v. Jordan, 60 Va. Cir. 293, 2002 Va. Cir. LEXIS 394 (Chesterfield County Oct. 29, 2002).

    In a civil suit, the motion to transfer venue filed by defendants was denied because they failed to file any venue objections or motions within 21 days after the entry of the order granting leave to file the amended complaint, as required by § 8.01-264 , therefore, they waived any right to challenge venue. Argos Utils. Corp. v. Perrin, 83 Va. Cir. 344, 2011 Va. Cir. LEXIS 233 (Roanoke Sept. 9, 2011).

    There was no basis to transfer venue in a sub-subcontractor’s multi-claim action, arising from a construction dispute, because the subcontractor did not show that it would be substantially inconvenienced by the original venue and it did not show good cause for transferring the case. Specialty Prods. v. Demolition Servs., 87 Va. Cir. 325, 2013 Va. Cir. LEXIS 93 (Norfolk Dec. 12, 2013).

    Wife failed to state facts showing that the action should have been dismissed because the forum chosen by the husband was inconvenient where she presented nothing to refute that the husband was a resident of Virginia at the time of filing, and the conclusory statements in the Notice are void of facts alleging that the City of Norfolk was an inconvenient forum. Sayre v. Sayre, 2016 Va. Cir. LEXIS 90 (Norfolk June 30, 2016).

    Dismissal based on forum non conveniens was not appropriate when a complainant brought causes of action for defamation against the publishers and for negligence against a social media platform when the publishers in Virginia posted alleged defamatory statements on the platform in California because the cause of action arose in Virginia, there was no showing that California had jurisdiction over all the parties, video testimony was available to avoid the inconvenience of coming to court, and the causes of action were interdependent. Nunes v. Twitter, Inc., 103 Va. Cir. 184, 2019 Va. Cir. LEXIS 613 (Henrico County Oct. 2, 2019).

    § 8.01-266. Costs.

    In any action which is transferred or retained for trial pursuant to this chapter, the court in which the action is initially brought may award an amount necessary to compensate a party for such inconvenience, expense, and delay as he may have been caused by the commencement of the suit in a forum to which an objection, pursuant to § 8.01-264 , is sustained or by the bringing of a frivolous motion to transfer. In addition, the court may award those attorney’s fees deemed just and reasonable which are occasioned by such commencement of a suit or by such motion to transfer. The awarding of such costs by the transferor court shall not preclude the assessment of costs by the clerk of the transferee court.

    History. 1977, c. 617; 1994, c. 32.

    REVISERS’ NOTE

    Section 8.01-266 provides sanctions as a remedy for improper venue. By providing that the court “shall award” reasonable actual costs, the section makes the imposition of such costs mandatory (i.e., the court has discretion to transfer, but not as to the imposition of costs). Additionally, the court is granted discretion to award attorney’s fees. The costs to be imposed are only those which have been actually incurred up to the point in time of the granting of transfer or denial of such a motion. If transfer of the action is granted, costs should include those fees of the transferor court necessary to implement the order. Thereafter costs are to be awarded in accordance with chapter 3 of Title 14.1.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

    Michie’s Jurisprudence.

    For related discussion, see 10B M.J. Insurance, § 230.

    § 8.01-267. Discretion of judge.

    Both the decision of the court transferring or refusing to transfer an action under § 8.01-265 and the decision of the court as to amount of costs awarded under § 8.01-266 shall be within the sound discretion of the trial judge. However, nothing herein shall affect the right to assign as error a court’s decision concerning venue.

    History. 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-267 provides that certain discretionary decisions of the trial judge may be appealable only for abuse of such discretion: (1) whether to transfer a case for reasons of forum non conveniens (§ 8.01-264 ); and (2) the amount of costs awarded upon transfer (§ 8.01-266 ).

    While neither transfer nor refusal to transfer are immediately appealable, the trial judge’s decision is ultimately reviewable on the grounds that he abused his discretion, or that the forum to which the action was transferred or in which the case was allowed to remain was not a proper place of venue under §§ 8.01-260 to 8.01-262 .

    Law Review.

    For survey on property law in Virginia for 1989, see 23 U. Rich. L. Rev. 773 (1989).

    Michie’s Jurisprudence.

    For related discussion, see 19 M.J. Venue, §§ 16, 17, 22.

    Chapter 5.1. Multiple Claimant Litigation Act.

    Law Review.

    For essay “Bifurcation of Civil Trials,” see 45 U. Rich. L. Rev. 1 (2010).

    § 8.01-267.1. Standards governing consolidation, etc., and transfer.

    On motion of any party, a circuit court may enter an order joining, coordinating, consolidating or transferring civil actions as provided in this chapter upon finding that:

    1. Separate civil actions brought by six or more plaintiffs involve common questions of law or fact and arise out of the same transaction, occurrence or series of transactions or occurrences;
    2. The common questions of law or fact predominate and are significant to the actions; and
    3. The order (i) will promote the ends of justice and the just and efficient conduct and disposition of the actions, and (ii) is consistent with each party’s right to due process of law, and (iii) does not prejudice each individual party’s right to a fair and impartial resolution of each action.

      Factors to be considered by the court include, but are not limited to, (i) the nature of the common questions of law or fact; (ii) the convenience of the parties, witnesses and counsel; (iii) the relative stages of the actions and the work of counsel; (iv) the efficient utilization of judicial facilities and personnel; (v) the calendar of the courts; (vi) the likelihood and disadvantages of duplicative and inconsistent rulings, orders or judgments; (vii) the likelihood of prompt settlement of the actions without the entry of the order; and (viii) as to joint trials by jury, the likelihood of prejudice or confusion.

      The court may organize and manage the combined litigation and enter further orders consistent with the right of each party to a fair trial as may be appropriate to avoid unnecessary costs, duplicative litigation or delay and to assure fair and efficient conduct and resolution of the litigation, including but not limited to orders which organize the parties into groups with like interest; appoint counsel to have lead responsibility for certain matters; allocate costs and fees to separate issues into common questions that require treatment on a consolidated basis and individual cases that do not; and to stay discovery on the issues that are not consolidated.

    History. 1995, c. 555.

    CIRCUIT COURT OPINIONS

    Consolidation granted as to liability only. —

    Six gross negligence actions involving common questions of law and fact and arising out of the same set of facts against a roofing company and a project consultant satisfied the factors of § 8.01-267.1 with respect to liability issues and, therefore, were consolidated into a single trial on the issue of liability only where all six cases involved alleged injuries to employees due to their exposure to chemicals used by the roofing company during repairs to the roof of the building where they worked. Bond v. Baker Roofing Co., 81 Va. Cir. 439, 2010 Va. Cir. LEXIS 269 (Norfolk Dec. 28, 2010).

    Severence granted. —

    Severance of actions brought by railroad employees under the Federal Employer’s Liability Act was granted, as the workers’ claims did not arise out of the same transactions or occurrences or series of transactions or occurrences. McClure v. Norfolk & W. Ry. Co., 54 Va. Cir. 322, 2000 Va. Cir. LEXIS 604 (Roanoke Dec. 27, 2000).

    Where the patients had distinct and independent claims against the same manufacturer, promoter, and various doctors involving the patients’ taking of the drug OxyContin, they failed to show that consolidation of their causes of action was appropriate under § 8.01-267.1 .Branch v. Purdue Pharma, L.P., 64 Va. Cir. 159, 2004 Va. Cir. LEXIS 203 (Richmond Mar. 2, 2004).

    Trial court severed the corporation’s notice claim against the county board of supervisors, as the notice claim did not meet the requirements of the Multiple Claimants Litigation Act, and claims initially joined could be severed pursuant to § 8.01-267.5 ; however, the corporation was still allowed to go forward with its notice claim separately from the consolidated claims, as the trial court had not entered an order that the notice claim should be stayed pending disposition of the proceedings on the consolidated claims. Gas Mart Corp. v. Loudoun County Bd. of Supervisors, 67 Va. Cir. 159, 2005 Va. Cir. LEXIS 171 (Loudoun County Mar. 10, 2005).

    Sua sponte severance. —

    Court could not sever the claims of “six or more parties” sua sponte for their failure to comply with § 8.01-267.5 of the Multiple Claimant Litigation Act, as the Act was not enacted for a particular substantive right; rather, it provided mandatory procedural requirements, and the failure to comply therewith did not divest the court of jurisdiction, such that it could not sever parties who filed jointly under § 8.01-267.1 .Livingston v. County of Fairfax, 78 Va. Cir. 283, 2009 Va. Cir. LEXIS 32 (Fairfax County Apr. 28, 2009).

    § 8.01-267.2. When actions pending in same court.

    For purposes of this chapter, actions shall be considered pending in the same circuit court when they have been (i) filed in that court, regardless of whether the defendant has been served with process, or (ii) properly transferred to that court.

    History. 1995, c. 555.

    § 8.01-267.3. Consolidation and other combined proceedings.

    On motion of any party, a circuit court in which separate civil actions are pending which were brought by six or more plaintiffs may enter an order coordinating, consolidating or joining any or all of the proceedings in the actions upon making the findings required by § 8.01-267.1 . The order may provide for any or all of the following:

    1. Coordinated or consolidated pretrial proceedings;
    2. A joint hearing or, if requested by any party, trial by jury with respect to any or all common questions at issue in the actions; or
    3. Consolidation of the actions.

    History. 1995, c. 555.

    § 8.01-267.4. Transfer.

    1. Whenever there are pending in different circuit courts of the Commonwealth civil actions brought by six or more plaintiffs which involve common issues of law or fact and arise out of the same transaction, occurrence or the same series of transactions or occurrences, any party may apply to a panel of circuit court judges designated by the Supreme Court for an order of transfer. Upon such application and upon making the findings required by § 8.01-267.1 , the panel may order some or all of the actions transferred to a circuit court in which one or more of the actions are pending for purposes of coordinated or consolidated pretrial proceedings. The circuit court to which actions are transferred may enter further orders as provided in § 8.01-267.3 . Any subsequent application for further transfer shall be made to the circuit court to which the actions were transferred. Upon completion of pretrial proceedings and any joint hearings or trials, the circuit court may remand the actions to the circuit courts in which they were originally filed or may retain them for final disposition.
    2. Any party who files an application for transfer shall at the same time give notice of such application to all parties and to the clerk of each circuit court in which an action that is the subject of the application is pending. Upon receipt of the notice, a circuit court shall not enter any further orders under § 8.01-267.3 until after the panel has entered an order granting or denying an application for transfer pursuant to subsection A.

    History. 1995, c. 555.

    § 8.01-267.5. Joinder and severance.

    Six or more parties may be joined initially as plaintiffs in a single action if their claims involve common issues of fact and arise out of the same transaction or occurrence or the same series of transactions or occurrences. On motion of a defendant, the actions so joined shall be severed unless the court finds that the claims of the plaintiffs were ones which, if they had been filed separately, would have met the standards of § 8.01-267.1 and would have been consolidated under § 8.01-267.3 . If the court orders severance, the claims may proceed separately upon payment of any appropriate filing fees due in the separate circuit courts within sixty days of entry of the order. The date of the original filing shall be the date of filing for each of the severed actions for purposes of applying the statutes of limitations.

    History. 1995, c. 555.

    CIRCUIT COURT OPINIONS

    Sua sponte severance. —

    Court could not sever the claims of “six or more parties” sua sponte for their failure to comply with § 8.01-267.5 of the Multiple Claimant Litigation Act, as the Act was not enacted for a particular substantive right; rather, it provided mandatory procedural requirements, and the failure to comply therewith did not divest the court of jurisdiction, such that it could not sever parties who filed jointly under § 8.01-267.1 .Livingston v. County of Fairfax, 78 Va. Cir. 283, 2009 Va. Cir. LEXIS 32 (Fairfax County Apr. 28, 2009).

    Severence granted. —

    Trial court severed the corporation’s notice claim against the county board of supervisors, as the notice claim did not meet the requirements of the Multiple Claimants Litigation Act, § 8.01-267.1 , and claims initially joined could be severed pursuant to § 8.01-267.5 ; however, the corporation was still allowed to go forward with its notice claim separately from the consolidated claims, as the trial court had not entered an order that the notice claim should be stayed pending disposition of the proceedings on the consolidated claims. Gas Mart Corp. v. Loudoun County Bd. of Supervisors, 67 Va. Cir. 159, 2005 Va. Cir. LEXIS 171 (Loudoun County Mar. 10, 2005).

    § 8.01-267.6. Separate trials; special interrogatories.

    In any combined action under this chapter, the court, on motion of any party, may order separate or bifurcated trials of any one or more claims, cross-claims, counterclaims, third-party claims, or separate issues, always preserving the right of trial by jury.

    Additionally, the court may submit special interrogatories to the jury to resolve specific issues of fact.

    History. 1995, c. 555.

    Law Review.

    For essay “Bifurcation of Civil Trials,” see 45 U. Rich. L. Rev. 1 (2010).

    § 8.01-267.7. Later-filed actions.

    Later-filed actions may be joined with ongoing litigation in accordance with the procedures of § 8.01-267.3 or § 8.01-267.4 and the standards of § 8.01-267.1 . Parties in later-filed actions joined with on-going multiple claimant litigation may, in the discretion of the court, be bound to prior proceedings but only to the extent permitted by law and only to the extent that the court finds that the interests of such parties were adequately and fairly represented. Consistent with the language of this section and the standards of § 8.01-267.1 , the parties may utilize all prior discovery taken by any party in on-going multiple party litigation as if the parties in the later-filed actions had been parties at the time the discovery was taken. On motion of any party or by the person from whom discovery is sought, the court may limit or prohibit discovery by parties in later-filed actions if the court finds that the matters on which the discovery is sought have been covered adequately by prior discovery.

    History. 1995, c. 555.

    § 8.01-267.8. Interlocutory appeal.

    1. The Court of Appeals, in its discretion, may permit an appeal to be taken from an order of a circuit court although the order is not a final order where the circuit court has ordered a consolidated trial of claims joined or consolidated pursuant to this chapter.
    2. The Court of Appeals, in its discretion, may permit an appeal to be taken from any other order of a circuit court in an action combined pursuant to this chapter although the order is not a final order provided the written order of the circuit court states that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.
    3. Application for an appeal pursuant to this section shall be made within 10 days after the entry of the order and shall not stay proceedings in the circuit court unless the circuit court or the appellate court shall so order.

    History. 1995, c. 555; 2021, Sp. Sess. I, c. 489.

    Editor’s note.

    Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, in subsections A and B, deleted “Supreme Court or the” preceding “Court of Appeals” twice; and made a stylistic change.

    CIRCUIT COURT OPINIONS

    Severance granted. —

    Trial court severed the corporation’s notice claim against the county board of supervisors, as the notice claim did not meet the requirements of the Multiple Claimants Litigation Act, § 8.01-267.1 , and claims initially joined could be severed pursuant to § 8.01-267.5 ; however, the corporation was still allowed to go forward with its notice claim separately from the consolidated claims, as the trial court had not entered an order that the notice claim should be stayed pending disposition of the proceedings on the consolidated claims. Gas Mart Corp. v. Loudoun County Bd. of Supervisors, 67 Va. Cir. 159, 2005 Va. Cir. LEXIS 171 (Loudoun County Mar. 10, 2005).

    § 8.01-267.9. Effect on other law.

    The procedures set out in this chapter are in addition to procedures otherwise available by statute, rule or common law and do not limit in any way the availability of such procedures, but shall not apply to any action against a manufacturer or supplier of asbestos or product for industrial use that contains asbestos to which the provisions of § 8.01-374.1 may apply.

    History. 1995, c. 555.

    Chapter 6. Notice of Lis Pendens or Attachment.

    § 8.01-268. When and how docketed and indexed.

    1. No lis pendens or attachment shall bind or affect a subsequent bona fide purchaser of real or personal estate for valuable consideration and without actual notice of such lis pendens or attachment, until and except from the time a memorandum setting forth the title of the cause or attachment, the general object thereof, the court wherein it is pending, the amount of the claim asserted by the plaintiff, a description of the property, the name of the person whose estate is intended to be affected thereby, and in an action to enforce a zoning ordinance a description of the alleged violation, shall be admitted to record in the clerk’s office of the circuit court of the county or the city wherein the property is located; or if it be in that part of the City of Richmond lying north of the south bank of the James River and including the islands in such river, in the clerk’s office of the Circuit Court, Division I, of such city, or if it be in the part of the City of Richmond lying south of the south bank of the James River, in the clerk’s office of the Circuit Court, Division II, of such city. Clerks of circuit courts are authorized and directed to admit to record memoranda of lis pendens or attachment for actions pending in any court of this Commonwealth, or in any other state, federal, or territorial court. The provisions of this section shall not be construed to mean that any such memoranda heretofore recorded are not properly of record. Such memorandum shall not be deemed to have been recorded unless and until indexed as required by law. A memorandum of lis pendens admitted to record in an action to enforce a zoning ordinance shall expire after 180 days.
    2. No memorandum of lis pendens shall be filed unless the action on which the lis pendens is based seeks to establish an interest by the filing party in the real property described in the memorandum, or unless the action on which the lis pendens is based seeks to enforce a zoning ordinance.

    History. Code 1950, § 8-142; 1973, c. 544; 1976, c. 178; 1977, c. 617; 1988, c. 503; 2008, cc. 60, 204.

    Cross references.

    As to lien of attachment, see § 8.01-557 .

    As to what documents recorded in deed books, see § 17.1-227 .

    As to additional documents to be recorded in deed book, see § 17.1-229 .

    As to indexing in general, see § 17.1-249 .

    The 2008 amendments.

    The 2008 amendments by cc. 60 and 204 are identical, and in subsection A, inserted “and in an action to enforce a zoning ordinance a description of the alleged violation” and made a related change in the first sentence and added the last sentence; and added “or unless the action on which the lis pendens is based seeks to enforce a zoning ordinance” at the end of subsection B.

    Law Review.

    For article on fraudulent conveyances and preferences in Virginia, see 36 Wash. & Lee L. Rev. 51 (1979).

    For article on title examination in Virginia, see 17 U. Rich. L. Rev. 229 (1983).

    As to recent legislation relating to lis pendens, see 22 U. Rich. L. Rev. 517 (1988).

    For 2003/2004 survey of real estate and land use law, see 39 U. Rich. L. Rev. 357 (2004).

    For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 60.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Section enacted to prevent harshness of former rule. —

    At one time, if title to real estate were at stake in litigation, the mere pendency of the suit was deemed sufficient to charge a purchaser with notice of the challenge to title and subject his interest in the property to the outcome of the suit. To correct the harshness of this rule, the General Assembly enacted a provision currently codified as this section, requiring any notice of pending litigation or lis pendens to be docketed in the circuit court clerks’ office for the jurisdiction in which the land is located before such notice will bind a bona fide purchaser. Hart v. United Va. Bank, 24 Bankr. 821, 1982 Bankr. LEXIS 5421 (Bankr. E.D. Va. 1982).

    This section must be read in conjunction with § 8.01-458 , which states that “[e]very judgment for money rendered in this Commonwealth by any state or federal court . . . shall be a lien on all the real estate of . . . the defendant . . . .” Thus, any suit in which the defendant is an individual has the potential to affect the title to real estate. Hart v. United Va. Bank, 24 Bankr. 821, 1982 Bankr. LEXIS 5421 (Bankr. E.D. Va. 1982).

    Difference between notices of lis pendens and attachment is only formal. —

    The section speaks of “lis pendens or attachment,” so that even if “lis pendens” technically were available only for actions directly involving title to real property, the identical procedure, with identical effect, may be obtained by filing a notice of attachment. The difference is formal rather than substantive. Hart v. United Va. Bank, 24 Bankr. 821, 1982 Bankr. LEXIS 5421 (Bankr. E.D. Va. 1982).

    Filing of memorandum lis pendens neither creates nor enforces a lien. Rather, plaintiff’s filing of the lis pendens pursuant to this section served merely as notice of the pendency of the suit to any one interested and a warning that he should examine the proceedings therein to ascertain whether the title to the property was affected or not by such proceedings. Green Hill Corp. v. Kim, 842 F.2d 742, 1988 U.S. App. LEXIS 3893 (4th Cir. 1988).

    Notice of lis pendens is qualified privileged communication. —

    Judicial proceedings have been recognized in Virginia as constituting one of the principal occasions where communications are absolutely privileged. However, that when all the interests involved are taken into consideration the filing of a notice of lis pendens is more appropriately characterized as a qualified privileged occasion. Warren v. Bank of Marion, 618 F. Supp. 317, 1985 U.S. Dist. LEXIS 15785 (W.D. Va. 1985).

    Section not limited to suits directly involving title to real estate. —

    This section provides for the filing of memoranda against a defendant’s personal as well as his real property, which indicates an intent by the legislature that such filings not be restricted to suits directly involving title to real estate. Hart v. United Va. Bank, 24 Bankr. 821, 1982 Bankr. LEXIS 5421 (Bankr. E.D. Va. 1982).

    Procedure available to any party seeking money judgment. —

    Under this section and § 8.01-458 , the recording of a memorandum of lis pendens is open to any litigating party seeking a money judgment against an individual property owner in Virginia. Hart v. United Va. Bank, 24 Bankr. 821, 1982 Bankr. LEXIS 5421 (Bankr. E.D. Va. 1982).

    Memorandum of lis pendens is merely a notice to third parties that a claim has been asserted to the property described. Hart v. United Va. Bank, 24 Bankr. 821, 1982 Bankr. LEXIS 5421 (Bankr. E.D. Va. 1982).

    No lis pendens without interest in property. —

    Pursuant to § 55-82, as limited by subsection B of § 8.01-268 , a plaintiff in an action claiming fraudulent conveyance as to a specific property is not free to file a memorandum of lis pendens on property in which he does not assert or claim an interest. Meliani v. Jade Dunn Loring Metro, L.L.C., 286 F. Supp. 2d 741, 2003 U.S. Dist. LEXIS 18178 (E.D. Va. 2003).

    Memorandum of lis pendens proper. —

    Where a judgment creditor of a Chapter 11 debtor filed a memorandum of lis pendens against property held by a corporation related to the debtor, a motion to quash the lis pendens was denied because the judgment creditor was not seeking to impose a pre-judgment attachment against the property, but rather was seeking to establish its interest in the real property in question, within the meaning of subsection B of § 8.01-268 . Cadle Co. II, Inc. v. Superior Constr. & Contr., Inc., 362 Bankr. 687, 2006 Bankr. LEXIS 3681 (Bankr. E.D. Va. 2006).

    II.Decisions Under Prior Law.

    Editor’s note.

    This section is remedial, and in construing it, there should be borne in mind the old law, the mischief intended to be remedied, and the remedy. Vicars v. Sayler, 111 Va. 307 , 68 S.E. 988 , 1910 Va. LEXIS 46 (1910) (see also Swetnam v. Antonsanti, 150 Va. 534 , 143 S.E. 716 (1928)).

    What constitutes action lis pendens. —

    That to constitute an action or suit lis pendens the property involved must be the identical property transferred pendente lite, of a kind subject to the rule and sufficiently described in the pleadings to identify it, and the court must have jurisdiction at the time of the transfer over the subject matter and the party from whom the interest is acquired. French v. Loyal Co., 32 Va. (5 Leigh) 627, 1834 Va. LEXIS 67 (1834); Davis v. Christian, 56 Va. (15 Gratt.) 11, 1859 Va. LEXIS 1 (1859); Briscoe v. Ashby, 65 Va. (24 Gratt.) 454, 1874 Va. LEXIS 26 (1874).

    It has no application to the federal courts. —

    This section has no application to federal courts sitting in Virginia, as such courts have no power to enforce the registration of such memoranda. King v. Davis, 137 F. 198, 1903 U.S. App. LEXIS 5453 (C.C.D. Va. 1903).

    Notice unnecessary where judgment obtained. —

    Purchasers of land are conclusively affected with notice of judgment duly obtained and docketed against the owner, and no lis pendens or other notice of a suit to subject the land to such judgment is needed to affect them. Sharitz v. Moyers, 99 Va. 519 , 39 S.E. 166 , 1901 Va. LEXIS 72 (1901).

    Lien is only upon property conveyed. —

    The lien thus conferred is only upon the property conveyed, and not, like the lien of a judgment, on all of the debtor’s estate. Davis v. Bonney, 89 Va. 755 , 17 S.E. 229 , 1893 Va. LEXIS 100 (1893).

    Suit by creditors to subject decedent’s lands to payment of debts. —

    The filing of a notice of lis pendens, in a suit by creditors of a decedent to subject his lands to payment of his debts, is required in order to charge a purchaser of such lands from the heir, without actual notice of the suit, with knowledge thereof. Easley v. Barksdale, 75 Va. 274 , 1881 Va. LEXIS 12 (1881) (see also Heeke v. Allan, 127 Va. 65 , 102 S.E. 655 (1920)).

    Effect of notice of attachment proceedings. —

    A lis pendens in attachment proceedings filed in the clerk’s office of the proper county, operates to give constructive notice of the lien of the attachment to a subsequent grantee of the defendant, and such grantee stands upon no better footing as to the attaching creditor than his grantor. Breeden v. Peale, 106 Va. 39 , 55 S.E. 2 , 1906 Va. LEXIS 105 (1906).

    Effect of express notice. —

    A purchaser pendente lite, and with express notice is not an innocent purchaser for value. He is not a purchaser at all in the eyes of the law. Culbertson v. Stevens, 82 Va. 406 , 4 S.E. 607 , 1886 Va. LEXIS 51 (1886).

    What constitutes actual notice. —

    In the absence of record notice, the statutory actual notice which will affect a purchaser pending a suit must affect the conscience of the purchaser, and the notice may be either actual or circumstantial or presumptive, but it is not sufficient if it merely puts the purchaser on inquiry, but it must be clear and strong and such as to fix on him the imputation of bad faith in making the purchase. Vicars v. Sayler, 111 Va. 307 , 68 S.E. 988 , 1910 Va. LEXIS 46 (1910).

    Actual notice binds the purchaser although lis pendens not recorded. —

    Where one purchases with actual notice of the lis pendens, although it has not been recorded, he is bound by the decree in the case. Hurn v. Keller, 79 Va. 415 , 1884 Va. LEXIS 97 (1884).

    But purchaser with neither actual nor record notice protected. —

    A purchaser without notice of the pendency of the suit takes a good title when the lis pendens is not docketed as provided by these statutes. Cammack v. Soran, 71 Va. (30 Gratt.) 292, 1878 Va. LEXIS 66 (1878); Easley v. Barksdale, 75 Va. 274 , 1881 Va. LEXIS 12 (1881).

    Voluntary purchaser pendente lite, not protected. —

    Even though no memorandum was left with the clerk to be recorded and indexed, a voluntary grantee, pendente lite, takes in subordination to the rights of the creditors of his grantor adjudicated in the suit, and cannot impeach the proceedings in that suit by an independent suit brought for that purpose. Davis v. Anderson, 99 Va. 620 , 39 S.E. 588 , 1901 Va. LEXIS 88 (1901).

    Purchaser to be substituted to grantor’s position. —

    A purchaser pendente lite is entitled, on becoming a party to the action to be substituted to his grantor’s position and rights. Sharitz v. Moyers, 99 Va. 519 , 39 S.E. 166 , 1901 Va. LEXIS 72 (1901).

    Sufficiency of the memorandum. —

    A memorandum required by this section that fails to comply with the statutory requirement with respect to setting forth the description of the property intended to be affected by the lis pendens and contain in itself a material misdescription, and is absolutely unaided in its description of the property by the references to the pleading, is fatally defective. Motley v. H. Vicello & Bros., 132 Va. 281 , 111 S.E. 295 , 1922 Va. LEXIS 25 (1922).

    The sufficiency of the description of the property contained in the memorandum must be tested as of the time the memorandum becomes effective. Thus, where the memorandum refers to the bill which was not filed until some days after the memorandum became effective, the description of the property in the memorandum cannot be aided by the description in the bill. Motley v. H. Vicello & Bros., 132 Va. 281 , 111 S.E. 295 , 1922 Va. LEXIS 25 (1922).

    CIRCUIT COURT OPINIONS

    Notice of lis pendens is qualified privileged communication. —

    If the recordation of a memorandum of mechanic’s lien is absolutely privileged, then the recordation of a memorandum of lis pendens must also be absolutely privileged because the latter, which is recorded after suit is filed and must by statute relate to the suit, seems just as much a part of a judicial proceeding as the former which is an absolute prerequisite to a suit to enforce a mechanic’s lien; a memorandum of lis pendens is not a necessary prerequisite to enforcing a lien or any other interest in real estate, is recorded for only one purpose, to let all the world know that a suit is pending which may affect certain real estate, and does not in and of itself assert or create any interest in the real estate affected. Bristol County Ret. Sys. v. Senior Tour Players Fund I, L.P., 2006 Va. Cir. LEXIS 337 (Loudoun County Mar. 10, 2006).

    Memorandum of lis pendens proper. —

    Mortgage company’s motion to quash a home builder’s memorandum of lis pendens was denied because the builder’s memorandum of lis pendens was proper as the builder alleged that it held title to a property, that the buyer and the mortgage company did not pay the full purchase price for the property, and that the mortgage company was attempting to resell the property to a third party or had already done so. Palm Harbor Homes, Inc. v. Leader Funding, Inc., 70 Va. Cir. 31, 2005 Va. Cir. LEXIS 293 (Brunswick County July 25, 2005).

    Retirement systems’ recordation of a memorandum of lis pendens was not done maliciously, and hence, was privileged because the memorandum was in proper form as required by § 8.01-268 , and its recordation was statutorily permitted; all the statements in the memorandum of lis pendens were absolutely privileged and cannot form the basis of a slander of title claim. Bristol County Ret. Sys. v. Senior Tour Players Fund I, L.P., 2006 Va. Cir. LEXIS 337 (Loudoun County Mar. 10, 2006).

    Recording of lis pendens. —

    Language in subsection C of § 8.01-251 requiring the filing of a notice of lis pendens was specific to a judgment creditor’s particular suit and was not dispensed with by subsection B of this section; it is the language in subsection A of this section and not subsection B that prescribes the “manner” by which the judgment creditor is to “record” a notice of lis pendens. United Leasing Corp. v. Lacey, 101 Va. Cir. 402, 2013 Va. Cir. LEXIS 222 (Westmoreland County Jan. 16, 2013).

    Wrongful filing of a lis pendens not a cause of action. —

    Retirement systems were not liable for the wrongful filing of a lis pendens because there was not a separate cause of action for the wrongful filing of a lis pendens; wrongful filing of a lis pendens is not a cause of action recognized in Virginia. Bristol County Ret. Sys. v. Senior Tour Players Fund I, L.P., 2006 Va. Cir. LEXIS 337 (Loudoun County Mar. 10, 2006).

    Action against trustees alleging breach of fiduciary duty. —

    Trial court denied a trust company’s motion to quash a memorandum of lis pendens that was filed by a trust beneficiary who claimed that the trustees breached their fiduciary duty by renting a building that was owned by the trust to a business they owned for less than what the market allowed. Dworsky v. Trust Co., 63 Va. Cir. 65, 2003 Va. Cir. LEXIS 345 (Richmond July 14, 2003).

    Filing of lis pendens did not create a lien. —

    Filing a lis pendens certainly did not create a lien, but it was a consequential action that 11 U.S.C.S. § 547 permitted the trustee to avoid, provided it occurred within the requisite 90-day period. As such, although the bankruptcy court did hold that a lis pendens was not a “transfer,” its ultimate reliance on 11 U.S.C.S. § 547 aligned itself well with the underlying purposes of the Bankruptcy Code and the Virginia recording statute. Wells Fargo Funding v. Gold, 432 Bankr. 216, 2009 U.S. Dist. LEXIS 109949 (E.D. Va. 2009).

    § 8.01-269. Dismissal or satisfaction of same.

    If such attachment or lis pendens is quashed or dismissed or such cause is dismissed, or judgment or final decree in such attachment or cause is for the defendant or defendants, the court shall direct in its order (i) that the names of all interested parties thereto, as found in the recorded attachment or lis pendens be listed for the clerk, and (ii) that the attachment or lis pendens be released and, the court may, in an appropriate case, impose sanctions as provided in § 8.01-271.1 . It shall then become the duty of the clerk in whose office such attachment or lis pendens is recorded to record the order in the order book together with a separate instrument or order releasing such lien and referencing the deed book and page where the original lien is recorded. However, in any case in which an appeal or writ of error from such judgment or decree or dismissal would lie, the clerk shall not record the order or make the entry until after the expiration of the time in which such appeal or writ of error may be applied for, or if applied for after refusal thereof, or if granted, after final judgment or decree is entered by the appellate court.

    In any case in which the debt for which such attachment is issued, or suit is brought and notice of lis pendens recorded is satisfied by payment, it shall be the duty of the creditor, within 10 days after payment of same, to provide the clerk with a separate instrument or order for recordation releasing such lis pendens and referencing the order book and page where the original lis pendens is recorded.

    History. Code 1950, § 8-143; 1962, c. 589; 1977, c. 617; 1985, c. 310; 1986, c. 278; 1989, c. 450; 2014, c. 330.

    The 2014 amendments.

    The 2014 amendment by c. 330 in the first paragraph substituted “in the order book together with a separate instrument or order releasing such lien and referencing the deed book and page where the original lien is recorded” for “and, unless a microfilm recording process is used, to enter on the margin of the page of the book in which the same is recorded, such fact, together with a reference to the order book and page where such order is recorded”; and in the second paragraph substituted “10” for “ten” and “provide the clerk with a separate instrument or order for recordation releasing such lis pendens and referencing the order book and page where the original lis pendens is recorded” for “mark such notice of lis pendens or attachment satisfied on the margin of the page of the deed book in which the same is recorded, unless a microfilm recording process is used,” and made minor stylistic changes.

    Law Review.

    For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Lis Pendens, § 4.

    Chapter 7. Civil Actions; Commencement, Pleadings, and Motions.

    Article 1. Civil Actions Generally.

    § 8.01-270. Repealed by Acts 2005, c. 681, cl. 2, effective January 1, 2006.

    Editor’s note.

    Former § 8.01-270 , pertaining to transfer of cases from one side of court to other, derived from Code 1950, § 8-138; 1977, c. 617.

    Article 2. Pleadings Generally.

    § 8.01-271. Compliance with Rules of Supreme Court.

    Subject to the provisions of this title, pleadings shall be in accordance with Rules of the Supreme Court.

    History. 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-271 merely recognizes established practice. See also § 8.01-3 .

    The following Title 8 sections are deleted:

    § 8-98. (Plea in abatement to be verified.) The plea in abatement is abolished by § 8.01-276 .

    § 8-105. (Unnecessary to aver jurisdiction to make profert.) This section is unnecessary. The portion of the statute that relates to profert and oyer is encompassed by the rules and the procedure for discovery.

    § 8-106. (When place of contract, etc., need not be set forth.) This provision is obsolete and unnecessary.

    § 8-111. (Court may require particulars of claim or defense.) This section is deleted as unnecessary. See Rule 3:16.

    § 8-119. (Amendment of pleadings; immaterial errors or defects.) This section is deleted as unnecessary. See Rule 1:8.

    § 8-133. (Exceptions to jurisdiction; plea in abatement.) The plea in abatement is abolished by § 8.01-276 .

    § 8-138.1. (Transfer of cases from courts not having both law and equity jurisdiction to courts having such jurisdiction.)

    § 8-138.2. (Transfer of cases where court is abolished or jurisdiction removed or deprived.)

    § 8-139. (Enforcement of process of contempt.)

    The material is either obsolete and unnecessary or covered by other statutes. See, e.g., §§ 18.2-456 and 19.2-11 .

    § 8-141. (Control by court over proceedings in office.) References to “the court in vacation” have been deleted throughout Title 8.01.

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Abatement, Survival and Revival, § 22.

    § 8.01-271.01. Electronic filings in civil actions in circuit court.

    Electronic filings in civil actions and proceedings in the circuit court shall be governed by Article 4.1 (§ 17.1-258.2 et. seq.) of Chapter 2 of Title 17.1 and applicable Rules of the Supreme Court of Virginia.

    History. 2010, cc. 717, 760.

    § 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions.

    1. Except as otherwise provided in §§ 16.1-260 and 63.2-1901, every pleading, motion, or other paper of a party represented by an attorney shall be signed by at least one attorney of record who is an active member in good standing of the Virginia State Bar in his individual name, and the attorney’s address shall be stated on the first pleading filed by that attorney in the action. A party who is not represented by an attorney, including a person confined in a state or local correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address. The signature of a person other than counsel of record who is an active member in good standing of the Virginia State Bar or a pro se litigant is not a valid signature. A minor who is not represented by an attorney shall sign his pleading, motion, or other paper by his next friend. Either or both parents of such minor may sign on behalf of such minor as his next friend. However, a parent may not sign on behalf of a minor if such signature is otherwise prohibited by subdivision 6 of § 64.2-716 . If a pleading, motion, or other paper is not signed in compliance with this paragraph, it is defective. Such a defect renders the pleading, motion, or other paper voidable.
    2. The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
    3. An oral motion made by an attorney or party in any court of the Commonwealth constitutes a representation by him that (i) to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and (ii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
    4. If a pleading, motion, or other paper is signed or made in violation of this section, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including reasonable attorney fees.
    5. Failure to raise the issue of a signature defect in a pleading, motion, or other paper before the trial court’s jurisdiction expires pursuant to Rule 1:1 (a) and Rule 1:1B waives any challenge to that pleading, motion, or other paper based on such a defect.
    6. Signature defects in appellate filings, including the notice of appeal, shall be raised in the appellate court where the appeal is taken. Failure to timely raise the issue of a defective signature in an appellate pleading, motion, or other paper while the case is pending before the appellate court waives any challenge to that pleading, motion, or other paper based on such a defect.
    7. If a signature defect is not timely and properly cured after it is brought to the attention of the pleader or movant, the pleading, motion, or other paper is invalid and shall be stricken. A signature defect shall be cured within 21 days after it is brought to the attention of the pleader or movant. If a signature defect is timely and properly cured, the pleading, motion, or other paper shall be valid and relate back to the date it was originally served or filed.

    History. 1987, cc. 259, 682; 1998, c. 596; 2008, cc. 136, 845; 2018, c. 59; 2020, cc. 74, 351.

    Cross references.

    As to civil recovery for professional services, see § 8.01-27.4 .

    The 2008 amendments.

    The 2008 amendments by cc. 136 and 845 are identical, and substituted “Except as otherwise provided in §§ 16.1-260 and 63.2-1901, every” for “Every” at the beginning of the first paragraph.

    The 2018 amendments.

    The 2018 amendment by c. 59 added the last three sentences in the first paragraph.

    The 2020 amendments.

    The 2020 amendments by cc. 74 and 351 are identical, and added subsections E through G; in subsection A, substituted “motion, or other paper of a party represented by an attorney shall be signed by at least one attorney of record who is an active member in good standing of the Virginia State Bar” for “written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record” in the first sentence, inserted the third sentence, and added the final sentence; in subsection B, deleted the former last sentence, which read: “If a pleading, written motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant”; and in subsection D, substituted “section” for “rule” near the beginning and “attorney fees” for “attorney’s fee” at the end.

    Law Review.

    For 1987 survey of Virginia civil procedure and practice, see 21 U. Rich. L. Rev. 667 (1987).

    For note, “Will Tort Reform Combat the Medical Malpractice Insurance Availability and Affordability Problems That Virginia’s Physicians Are Facing,” see 44 Wash. & Lee L. Rev. 1463 (1988).

    For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

    For 1991 survey of civil practice and procedure, see 25 U. Rich. L. Rev. 663 (1991).

    For article reviewing changes in Virginia corporate and business law from June 2001 through May 2002, see 37 U. Rich. L. Rev. 1 (2002).

    For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

    For article, “Professional Responsibility,” see 43 U. Rich. L. Rev. 255 (2008).

    For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

    For annual survey article, “Civil Practice and Procedure,” see 46 U. Rich. L. Rev. 9 (2011).

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    For essay, “Nonsuit in Virginia Civil Trials,” see 48 U. Rich. L. Rev. 265 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, § 276.

    CASE NOTES

    Policy considerations. —

    The possibility of a sanction can protect litigants from the mental anguish and expense of frivolous assertions of unfounded factual and legal claims and against the assertions of valid claims for improper purposes, but the threat of a sanction should not be used to stifle counsel in advancing novel legal theories or asserting a client’s rights in a doubtful case. Gilmore v. Finn, 259 Va. 448 , 527 S.E.2d 426, 2000 Va. LEXIS 52 (2000).

    An objective standard of “reasonableness” is applied in determining whether the “warranted by existing law” portion of this section has been violated. Tullidge v. Board of Supvrs., 239 Va. 611 , 391 S.E.2d 288, 6 Va. Law Rep. 2182, 1990 Va. LEXIS 75 (1990).

    In determining whether one’s conduct in signing a document violated the statute, the trial court applies an objective standard of reasonableness. Woodruff v. Greene, No. 0114-98-2 (Ct. of Appeals Dec. 22, 1998).

    The Supreme Court applies an objective standard of reasonableness in order to determine whether a litigant and his attorney, after reasonable inquiry, could have formed a reasonable belief that a pleading was warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. Gilmore v. Finn, 259 Va. 448 , 527 S.E.2d 426, 2000 Va. LEXIS 52 (2000).

    The statutory standard does not require that the court decide that the challenged pleading was actually warranted by existing law but, rather, whether the party filing such pleading could have formed a reasonable belief that his action was warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; the wisdom of hindsight should be avoided in applying the appropriate objectively reasonable standard of review. Gilmore v. Finn, 259 Va. 448 , 527 S.E.2d 426, 2000 Va. LEXIS 52 (2000).

    In reviewing a trial court’s award of sanctions under this section, the appellate court will apply an abuse of discretion standard and, in applying that standard, will use an objective standard of reasonableness in determining whether a litigant and his attorney, after reasonable inquiry, could have formed a reasonable belief that the pleading was well grounded in fact, warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and not interposed for an improper purpose. Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48 , 547 S.E.2d 216, 2001 Va. LEXIS 84 (2001).

    Inadvertent mistake. —

    Trial court abused its discretion in sanctioning two attorneys in the amount of $200 each for submitting a jury instruction with an error despite the trial court’s finding that the mistake was inadvertent. There was nothing in § 8.01-271.1 that gave the trial judge authority to impose monetary sanctions on an attorney for what the judge found was an inadvertent mistake. Ragland v. Soggin, 291 Va. 282 , 784 S.E.2d 698, 2016 Va. LEXIS 46 (2016).

    Circuit court did not abuse its discretion by refusing to dismiss a rule to show cause issued against a former husband and to impose sanctions against the ex-wife and the ex-wife’s attorney, when the former husband argued that the ex-wife and the ex-wife’s attorney intentionally misrepresented that the payment obligations at issue were spousal support rather than monetary awards, because, when viewed with the terms of the parties’ final decree of divorce, the description of the payment obligations as spousal support was not unreasonable. Kahn v. McNicholas, 67 Va. App. 215, 795 S.E.2d 485, 2017 Va. App. LEXIS 19 (2017).

    Complaint cannot be signed by non-Virginia licensed attorney. —

    Because of the strong public policy considerations underlying § 8.01-271.1 , Va. Sup. Ct. R. 1:4 and 1A:4(2), the Supreme Court of Virginia construes them to require that a lawyer who files a pleading in a Virginia tribunal must append his personal, handwritten signature to a pleading; thus, a complaint signed on behalf of a licensed Virginia attorney by an attorney not licensed in Virginia was a nullity and as none of the relation back situations for amending pleadings applied, the defect could not be cured by providing the appropriate signature. Shipe v. Hunter, 280 Va. 480 , 699 S.E.2d 519, 2010 Va. LEXIS 231 (2010).

    Petition not signed. —

    Circuit court did not err in terminating a mother’s parental rights because the mother’s claim that the petition that initiated the proceedings was not properly before the circuit court since it was not signed by an attorney was procedurally barred; the mother did not raise the argument in the circuit court. Webb v. Tazewell Cnty. Dep't of Soc. Servs., 2016 Va. App. LEXIS 4 (Va. Ct. App. Jan. 12, 2016).

    Designated nonattorney employees of the Department of Social Services. —

    Circuit court properly affirmed the juvenile and domestic relations court’s termination of the parties’ parental rights because the lower courts acquired active jurisdiction to adjudicate the matters where, while the emergency removal and permanency planning petitions were not signed by an attorney, the 2008 and 2016 statutory amendments clearly demonstrated the General Assembly’s express agreement that certain nonattorney employees of local departments of social services could complete, file, and sign form petitions and motions and would not invalidate prior filings or petitions. Rudolph v. City of Newport News Dep't of Human Servs., 67 Va. App. 140, 793 S.E.2d 831, 2016 Va. App. LEXIS 355 (2016).

    Requirement as to attorney or pro se litigant signature on motions and pleadings. —

    Appellate court erred in declining to address the merits of defendant’s appeal for counsel’s failure to sign a motion to set aside a verdict because defendant signed the motion and there was no statutory remedy, so the motion’s denial was properly before the appellate court. McGinnis v. Commonwealth, 296 Va. 489 , 821 S.E.2d 700, 2018 Va. LEXIS 180 (2018).

    Jurisdiction. —

    Record contained evidence sufficient to establish jurisdiction to award sanctions because a confessed judgment became void for failure to serve a certified copy on the client; the attorney filed a suggestion in garnishment to divert the client’s wages to enforce a judgment that had been void by operation of law, and when he filed the garnishment suggestion the sheriff’s “not found” return on the certified copy of the confessed judgment had been in the clerk’s records open to public view. Westlake Legal Grp. v. Flynn, 293 Va. 344 , 798 S.E.2d 187, 2017 Va. LEXIS 60 (2017).

    Relevant evidence. —

    A client’s or third-party’s beliefs and/or actions regarding an attorney’s representation are not relevant to actions under § 8.01-271.1 unless those beliefs and/or actions assist in the determination of whether the attorney’s conduct or representations were well grounded in fact, and warranted under existing law or by a good faith argument for the extension, modification, or reversal of existing law. Vinson v. Vinson, 41 Va. App. 675, 588 S.E.2d 392, 2003 Va. App. LEXIS 590 (2003).

    Abuse of discretion standard on appeal. —

    In reviewing a trial court’s imposition of a sanction, an appellate court will apply an abuse of discretion standard. Flora v. Shulmister, 262 Va. 215 , 546 S.E.2d 427, 2001 Va. LEXIS 69 (2001).

    Issues subject to legitimate debate. —

    Where there were a number of issues which, even though decided against the beneficiaries of a trust, were subject to legitimate debate and some of the remedies they sought could not have been granted without joining the parties moving for sanctions, the trial court did not abuse its discretion in denying the imposition of sanctions and attorney’s fees. Ward v. NationsBank, 256 Va. 427 , 507 S.E.2d 616, 1998 Va. LEXIS 128 (1998).

    No sanctions against persons not party to action. —

    Circuit court wrongly imposed sanctions, for violating § 8.01-271.1 , against citizens who petitioned to remove supervisors from office, pursuant to §§ 24.2-233 and 24.2-235 , because the citizens were not parties to the removal action. Johnson v. Woodard, 281 Va. 403 , 707 S.E.2d 325, 2011 Va. LEXIS 48 (2011).

    Theory unsupported by existing law. —

    Husband was entitled to an award of reasonable attorney fees and costs for defending an appeal of the trial court’s ruling that his separation and property settlement agreement could not be invalidated due to duress, as wife’s argument on appeal that the agreement was invalid due to the duress and coercion applied by the wife’s own attorney was unsupported by existing Virginia law, which did not recognize a defense of duress caused by a third party. Nelson v. Nelson, 2005 Va. App. LEXIS 313 (Va. Ct. App. Aug. 16, 2005).

    Prefiling review requirement. —

    In a matter involving the custody and visitation of a minor child, trial court did not abuse its discretion in imposing a prefiling review requirement pursuant to § 8.01-271.1 based on its detailed analysis of the father’s history of filing frivolous and vexatious motions, pleadings, and documents. Switzer v. Fridley, 2011 Va. App. LEXIS 286 (Va. Ct. App. Sept. 27, 2011).

    In order to prevent a guest from continuing to file frivolous petitions for appeal, it was necessary to impose a pre-filing injunction against her in the Supreme Court; the guest had a history of (1) filing duplicative, vexatious lawsuits, (2) without any objective good faith basis, (3) at the expense of the court system and opposing parties, and (4) although monetary sanctions could be ordered, they would not prevent the guest from filing future pleadings. Adkins v. CP/IPERS Arlington Hotel LLC, 293 Va. 446 , 799 S.E.2d 929, 2017 Va. LEXIS 137 (2017).

    Because the circuit court failed to address all four factors of the four-factor test adopted in Adkins v. CP/IPERS Arlington Hotel LLC, 293 Va. 446 , the court vacated the pre-service review and summary dismissal claim for further consideration. Gordon v. Kiser, 296 Va. 418 , 821 S.E.2d 531, 2018 Va. LEXIS 178 (2018).

    Pleading signature requirements. —

    Appellant’s Medicaid authorized representative did not have standing to appeal an administrative decision as the pleadings were not signed by appellant or by counsel on her behalf; no engagement letter existed establishing an attorney-client relationship between appellant and the law firm, which was consistent with counsel’s explanations that the representative retained the law firm. The law firm did not represent appellant and therefore the pleadings before the circuit court did not satisfy the signature requirements under Virginia law. Lynch v. Bedford Cty. Dep't of Soc. Servs., 2019 Va. App. LEXIS 135 (Va. Ct. App. June 11, 2019).

    Sanctionable conduct does not establish liability for abuse of process. —

    In an employee’s motion for judgment claiming abuse of process against a professional corporation and its owner, improper use of regularly issued process was not shown when the defendants initially withheld a settlement agreement in discovery and provided it to the employee only after the trial court required it; liability for sanctionable conduct does not establish liability in an action for abuse of process. Montgomery v. McDaniel, 271 Va. 465 , 628 S.E.2d 529, 2006 Va. LEXIS 41 (2006).

    Threat of legal action. —

    The relevant and material statements in the notice of intent to file a lien were covered by absolute privilege and were not a wrongful threat in the context of an extortion charge. This section provides the remedy for frivolous or harassment suits. Ware v. Commonwealth, 2019 Va. App. LEXIS 212 (Va. Ct. App. Oct. 1, 2019).

    Separate claims considered separately. —

    The factual and legal viability of separate claims are individually assessed for sanction purposes and the fact that one claim may not have been well grounded in fact may not justify an award of sanctions where this claim was an inessential part of a unitary claim on which the party could, if correct on another part of the claim, obtain the relief sought. Gilmore v. Finn, 259 Va. 448 , 527 S.E.2d 426, 2000 Va. LEXIS 52 (2000).

    Sanctions against father for filing motion to have child examined affirmed. —

    Imposition of sanctions against a father for filing a motion to have his child examined by an independent psychiatrist was affirmed, where he did not have grounds to support the motion, and where motion was filed as a ploy to prevent the child’s mother from leaving the area. Yohay v. Justice, No. 0631-89-4 (Ct. of Appeals Oct. 2, 1990).

    Notice of appeal defective. —

    While sufficient to confer jurisdiction, the Commonwealth’s notice of appeal was defective because the copy filed in the trial court was not signed by the attorney for the Commonwealth; while a signature on the notice of appeal was not required to confer jurisdiction on the court of appeals, it was a mandatory procedural requirement that was not met by the Commonwealth, and thus, the notice of appeal was stricken from the record. Commonwealth v. Dubois, 2015 Va. App. LEXIS 324 (Va. Ct. App. Nov. 10, 2015).

    Failure to preserve sanctions issue for appeal. —

    Attorney’s claim that the circuit court abused its discretion in deciding to impose sanctions was not preserved for appeal because the record contained no indication that a motion to reconsider was ever heard or decided or that a hearing was ever requested thereon, and the circuit court never entered an order modifying, suspending, or vacating the sanctions order; therefore, the sanction order became final and beyond the control of the circuit court 21 days after its entry. Westlake Legal Grp. v. Flynn, 293 Va. 344 , 798 S.E.2d 187, 2017 Va. LEXIS 60 (2017).

    Sanctions upheld. —

    Trial court did not err in sanctioning father in amount of $300 for his repeated attempts to have case referred to mediation. Summers v. Summers, No. 1968-98-4 (Ct. of Appeals Aug. 3, 1999).

    Trial court did not abuse its discretion in sanctioning the state regulation challenger, as the state regulation challenger’s pleadings were not well grounded in fact and caused needless litigation. Bender v. Va. Marine Res. Comm'n, 2003 Va. App. LEXIS 253 (Va. Ct. App. Apr. 29, 2003).

    Juvenile court had authority to enter a sanctions order against an attorney who made misrepresentations to the court during a child custody proceeding. In re Fener, 2003 Va. App. LEXIS 596 (Va. Ct. App. Nov. 18, 2003).

    Trial court did not abuse its discretion in imposing sanctions against a wife as: (1) the wife was a party to the consolidated Virginia Uniform Transfers to Minors Act (UTMA), § 31-37 et seq., action after it was consolidated with the parents’ divorce proceedings, (2) one of the primary allegations in the UTMA case concerned the husband’s expenditures during the equitable distribution hearing, (3) the wife and her attorney took an active role in the UTMA hearing, and (4) the trial court found that the UTMA suit was filed for the improper purpose of harassment, custodial interference, and perpetuation of the divorce action. Lamberton v. Lamberton, 2004 Va. App. LEXIS 440 (Va. Ct. App. Sept. 14, 2004).

    Where defendants, a hospital and several physicians, filed motions for sanctions against plaintiff doctor in connection with one of many of the doctor’s frivolous suits against the same defendants, although the doctor originally filed his suit against defendants in state court, he could be sanctioned for the filing by the federal court because he advocated the removed motion in the federal court, and further, the federal court could enforce the Virginia sanctions provision. Payman v. Lee County Cmty. Hosp., No. 2:04CV00017, 2005 U.S. Dist. LEXIS 5215 (W.D. Va. Mar. 31, 2005), dismissed in part, No. 2:04CV00017, 2005 U.S. Dist. LEXIS 6697 (W.D. Va. Apr. 20, 2005).

    Trial court did not abuse its discretion by imposing a $500 fine against a husband in a post-divorce visitation matter with regard to his filing of a motion for an order to show cause why a psychological report was not filed under seal with the trial court because there was no requirement that the report was to have been filed under seal; the case was remanded for the trial court to determine the amount of attorney’s fees and costs due to the wife. Wilk v. Tamkin, 2005 Va. App. LEXIS 400 (Va. Ct. App. Oct. 11, 2005).

    In a father’s custody modification action, the trial court did not err in finding that a mother was entitled to relief and in determining the amount of the sanction imposed against the father, as: (1) the evidence clearly showed that the father’s motion for a change in custody was unsupported: (2) after initiating an appeal to the circuit court, the father attempted to non-suit the case days before the scheduled trial; (3) the juvenile court permissibly inferred from the record that the father used his pending appeal as leverage, in offering a settlement to mother; and (4) the financial burden of the instant litigation was far more burdensome on the mother, and the father knew it; hence, as a resut of the aforementioned, the circuit court’s affirmance of the juvenile court’s findings was summarily affirmed and the wife was awarded her appellate attorney’s fees. Ottosen v. Saunders, 2005 Va. App. LEXIS 484 (Va. Ct. App. Dec. 6, 2005).

    Circuit court properly imposed sanctions under § 8.01-271.1 against attorneys for a defendant because motions to recuse and to vacate a show cause order did not have a well grounded factual foundation, because the alleged facts were inaccurate or not attributed to the circuit court judge; in the alternative, sanctions were appropriate because the motions were not warranted by existing law, or, given the contemptuous language and distorted representations in the motions, were filed for an improper purpose. Williams & Connolly, LLP v. People for the Ethical Treatment of Animals, Inc., 273 Va. 498 , 643 S.E.2d 136, 2007 Va. LEXIS 45 (2007).

    Trial court did not abuse its discretion in imposing sanctions against the plaintiffs because the court correctly applied an objective standard of reasonableness in concluding that the facts of the case could not support a reasonable belief that the plaintiffs’ claims alleging: (1) interference with contract expectancy; (2) conspiracy to harm in business; and (3) defamation; along with the damages sought, were well grounded in fact or law, as required by § 8.01-271.1 .N. Va. Real Estate, Inc. v. Martins, 283 Va. 86 , 720 S.E.2d 121, 2012 Va. LEXIS 11 (2012).

    Because both the clients and their attorney violated § 8.01-271.1 , and because they did not provide evidence necessary to demonstrate proper allocation of fault, the trial court did not abuse its discretion when it imposed sanctions against them, jointly and severally. N. Va. Real Estate, Inc. v. Martins, 283 Va. 86 , 720 S.E.2d 121, 2012 Va. LEXIS 11 (2012).

    Circuit court did not abuse its discretion in awarding $2,000 in attorney fees to the wife based on its conclusion that the husband was engaging in abusive litigation because the husband’s latest collateral attack on the 2006 child support arrearage award was not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and because he could not persuasively say that it was not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Carrithers v. Harrah, 63 Va. App. 641, 762 S.E.2d 402, 2014 Va. App. LEXIS 297 (2014).

    Trial court did not abuse its discretion in awarding sanctions because the evidence supported the finding that a litigant was pursuing the litigant’s claims, which were nonsuited or dismissed, in a manner that demonstrated that the litigant was less interested in vindicating the litigant’s legal rights and more interested in intimidating and injuring the opposing party. A claim brought for such vengeful and vindictive reasons was brought for an improper purpose. Kambis v. Considine, 290 Va. 460 , 778 S.E.2d 117, 2015 Va. LEXIS 165 (2015).

    Sanctions denied. —

    Appellate court denied the husband’s request in a divorce case for sanctions pursuant to § 8.01-271.1 , after the wife’s counsel appealed the trial court’s entry of a sanction award against the wife’s counsel for bringing repeated pendente lite motions; although the appellate court had to dismiss the appeal of the wife’s counsel from the interlocutory order directing the wife’s counsel to pay sanctions, the jurisdictional arguments of the wife’s counsel were based on a reasonable reading of the existing law. O'Donoghue v. O'Donoghue, 2007 Va. App. LEXIS 124 (Va. Ct. App. Mar. 27, 2007).

    It was an abuse of discretion to award appellee attorney’s fees under § 8.01-271.1 as although appellants signed a petition for adoption and filed it, and should have waited a while to see what was going to happen in a pending visitation proceeding, the trial court stated that there was no bad faith; the record was devoid of any evidence that supported the trial court’s award of sanctions under either a subjective or an objective test. Pellek v. Byers, 2008 Va. App. LEXIS 506 (Va. Ct. App. Nov. 18, 2008).

    Carrier was not entitled to an award of fees and expenses based on having to reply to the appellate argument of the uninsured employer’s fund regarding whether the carrier was responsible for coverage for a workers’ compensation claim; a signature on a pleading may have constituted a certification that the pleading was warranted by a good faith argument for the extension, modification, or reversal of existing law, and the fund spent more than four pages in its brief explaining why it believed that a Supreme Court of Virginia case on the issue was wrongly decided. The mere recency of that decision did not prevent the fund from making a good faith argument for its modification or reversal. Am. Zurich Ins. Co. v. Amundsen, 2009 Va. App. LEXIS 150 (Va. Ct. App. Mar. 31, 2009).

    Trial court did not abuse its discretion in denying sanctions in a child support hearing where a father based fraud allegations against a mother on a belief that mother’s parents had been enhancing the mother’s income with monetary gifts that the mother had not disclosed; the fraud allegations were weak at best, but not sanctionable. Broadhead v. Broadhead, 2010 Va. App. LEXIS 101 (Va. Ct. App. Mar. 16, 2010).

    Sanctions were not warranted in a suit brought to enforce a covenant running with the land by requiring a railway company to restore a private grade crossing over railway tracks because the company’s defenses, although unsuccessful, were well-grounded and had no improper purpose. Norfolk S. Ry. Co. v. E. A. Breeden, Inc., 287 Va. 456 , 756 S.E.2d 420, 2014 Va. LEXIS 57 (2014).

    Court denied claimant’s request for sanctions, given that the record did not establish the complete absence of a factual basis for challenging the sufficiency of the evidence; employer’s argument fell within the scope of zealous representation. Klockner Pentaplast of Am. v. Miller, 2021 Va. App. LEXIS 135 (Va. Ct. App. July 27, 2021).

    Sanctions against husband based on motion to vacate arbitration award held proper. —

    Where husband’s arguments were almost totally based upon false assertions and he made no legal argument that would entitle him to relief, and it was more than a year after the arbitrator had made his findings in the proposed award before husband made any objection to it, trial court did not abuse its discretion by awarding sanctions based on the alleged errors cited by husband in his motion to vacate the arbitration award and the findings of the arbitrator; however, because of the issues, regarding how an arbitration award should be treated by a trial court in domestic relations cases which was raised by husband was of first impression in Virginia and because husband had a facially reasonable argument that the equitable distribution award was excessive, the award of sanctions will be remanded to the trial court for review and for a new award that recognizes that the motion before it was not totally frivolous and without merit. Bandas v. Bandas, 16 Va. App. 427, 430 S.E.2d 706, 9 Va. Law Rep. 1369, 1993 Va. App. LEXIS 159 (1993).

    Sanctions unavailable where party failed to object to court’s ruling. —

    Although a husband attempted to invoke the sanctions provisions, the court declined to hear this argument because the husband failed to note an objection to the court’s ruling, making any claim based on the statute procedurally defaulted pursuant to Rule 5A:18. Mattingly v. McCrystal, 2004 Va. App. LEXIS 174 (Va. Ct. App. Apr. 13, 2004).

    Trial court erred in imposing sanctions under this section against a county board of supervisors in a zoning case, where the board reasonably believed that it was authorized to act on a request for rezoning and was therefore justified in filing its defensive pleadings in the case. County of Prince William v. Rau, 239 Va. 616 , 391 S.E.2d 290, 6 Va. Law Rep. 2187, 1990 Va. LEXIS 78 (1990).

    Court may award sanctions sua sponte. —

    A trial court is authorized to impose sanctions against a party based upon evidence that he filed a motion in order to harass the other party and make him expend attorney’s fees regardless of whether the other party requests sanctions in his pleadings. Gallahan v. Flood, 2000 Va. App. LEXIS 586 (Va. Ct. App. Aug. 8, 2000).

    Because an attorney repeatedly used intemperate language in a petition for rehearing to express his displeasure with a court’s opinion, the attorney violated § 8.01-271.1 ; the attorney was suspended for one year and assessed a $1000 fine. Taboada v. Daly Seven, Inc., 272 Va. 211 , 636 S.E.2d 889, 2006 Va. LEXIS 72 (2006).

    Authority to consider sanctions after nonsuit granted. —

    Because an employer’s § 8.01-271.1 motion for sanctions was pending when the employee moved for a first nonsuit, the trial court was empowered to consider the sanctions motion either before the entry of the nonsuit order or within 21 days after the entry of the nonsuit order under Va. Sup. Ct. R. 1:1. Williamsburg Peking Corp. v. Xianchin Kong, 270 Va. 350 , 619 S.E.2d 100, 2005 Va. LEXIS 83 (2005).

    Amount of sanctions upheld. —

    Section 8.01-271.1 does not limit sanctions to the expenses incurred as a result of the filing of a motion for sanctions; thus, a sanction award that exceeded the amount necessary to reimburse a husband the costs of litigating an action under § 8.01-271.1 against an attorney in a divorce case, was not improper where the amount of the sanction was not unreasonable under the circumstances. Vinson v. Vinson, 41 Va. App. 675, 588 S.E.2d 392, 2003 Va. App. LEXIS 590 (2003).

    Sanctions against attorney upheld. —

    Trial court’s order requiring a husband who failed to make court-ordered payments and attempted to conceal his assets in a divorce action to personally appear in court and post a $25,000 bond before he filed additional motions did not deny the husband due process of law, and the trial court’s judgment denying the husband’s motion for leave to file a motion without posting the bond and sanctioning the husband’s attorney by imposing a $2,500 fine for filing the husband’s motion was upheld. Fox v. Fox, 41 Va. App. 88, 581 S.E.2d 904, 2003 Va. App. LEXIS 338 (2003).

    Sanctions against attorney reversed. —

    Sanction imposed against an attorney, who filed a pro se action which unsuccessfully challenged a county’s relocation of its administrative offices, was reversed, where the attorney’s construction of a pertinent Virginia statute was “warranted by existing law.” Tullidge v. Board of Supvrs., 239 Va. 611 , 391 S.E.2d 288, 6 Va. Law Rep. 2182, 1990 Va. LEXIS 75 (1990).

    Although Supreme Court upheld the trial court’s ruling on defendant’s demurrers for failure of plaintiff to state a cause of action, an award of sanctions against plaintiff’s attorney was not upheld where the Supreme Court ruled that plaintiff’s claims were objectively reasonable under existing law. Nedrich v. Jones, 245 Va. 465 , 429 S.E.2d 201, 9 Va. Law Rep. 1239, 1993 Va. LEXIS 78 (1993).

    Circuit court abused its discretion by imposing sanctions upon an attorney who the day before the scheduled trial filed a bankruptcy petition on behalf of the attorney’s client, who was a defendant in the proceeding before the court, because the attorney’s filing of a witness and exhibit list, pursuant to a pre-trial order, did not violate § 8.01-271.1 and the attorney was not required to inform opposing counsel or the court that the attorney’s client was considering bankruptcy. McNally v. Rey, 275 Va. 475 , 659 S.E.2d 279, 2008 Va. LEXIS 44 (2008).

    Trial court abused its discretion in sanctioning an attorney due to his actions involving a client’s failure to pay court-ordered fees and costs to her ex-husband because he could have formed the belief, after reasonable inquiry, that the show cause response brief in a proceeding to hold his client in contempt and the arguments that were set forth therein were warranted under existing law. Shebelskie v. Brown, 287 Va. 18 , 752 S.E.2d 877, 2014 Va. LEXIS 10 (2014).

    Trial court abused its discretion in sanctioning an attorney due to his actions involving a client’s failure to pay court-ordered fees and costs to her ex-husband because the attorney did not sign a “brief in response to a show cause order” to hold the client in contempt, and his oral argument at the hearing on that matter did not constitute an “oral motion.” Shebelskie v. Brown, 287 Va. 18 , 752 S.E.2d 877, 2014 Va. LEXIS 10 (2014).

    Action by counsel declining to agree to an extension did not involve a pleading, motion, or other paper filed by counsel, and thus the award of sanctions was without basis, and nothing in the statute gives a trial court authority to impose sanctions on an attorney for failing to voluntarily agree to an extension of a deadline for an opposing party; plaintiff directed counsel not to agree to the request, counsel met his obligation to pursue his client’s best interest, and counsel did not engage in unprofessional behavior. Env't Specialist, Inc. v. Wells Fargo Bank Northwest, N.A., 291 Va. 111 , 782 S.E.2d 147, 2016 Va. LEXIS 9 (2016).

    The withdrawal of a petition, based on the party’s belief that its evidence is insufficient to satisfy the standard of review, does not constitute a concession that the appeal was not warranted by existing law. Woodruff v. Greene, No. 0114-98-2 (Ct. of Appeals Dec. 22, 1998).

    Sanctions not warranted for failing to produce autopsy report. —

    An attorney representing an estate in a medical malpractice case was not subject to sanctions for failing to produce an autopsy report prepared at the request of the decedent’s family a number of months after the decedent’s death to determine whether a malpractice claim might be warranted where, after reasonable inquiry, the attorney could have formed a reasonable belief that the report was not a medical report discoverable under Supreme Court Rule 4:9 but, instead, was an expert’s report discoverable only in compliance with the provisions of Supreme Court Rule 4:1(b)(4) and the circuit court’s scheduling order. Flora v. Shulmister, 262 Va. 215 , 546 S.E.2d 427, 2001 Va. LEXIS 69 (2001).

    Attorney’s fees. —

    In a child custody case in which a mother argued that the trial court erred in not awarding her attorney’s fees because the father had caused unnecessary expense and delay in the proceedings, some of which were sanctionable under § 8.01-271.1 , the trial court carefully considered the claims involved in the custody modification proceeding, and it ultimately denied mother’s motion to transfer custody. The record did not show that the father’s actions caused unnecessary expense and delay. Haring v. Hackmer, 2009 Va. App. LEXIS 402 (Va. Ct. App. Sept. 8, 2009).

    Trial court did not abuse its discretion in determining the amount of the award of sanctions, particularly in light of the trial court’s findings that: (1) the clients and their attorney violated § 8.01-271.1 when they filed the underlying action for an improper purpose and without a proper basis in law and in fact; and (2) the appropriate sanction was to hold both the clients and their attorney jointly and severally liable for the reasonable attorney’s fees and costs of defendants. N. Va. Real Estate, Inc. v. Martins, 283 Va. 86 , 720 S.E.2d 121, 2012 Va. LEXIS 11 (2012).

    Sanctions against a husband and his counsel in the form of the wife’s appeal costs and fees were appropriate because the husband’s arguments regarding the trial court’s alleged lack of jurisdiction was barred by the law of the case doctrine, and the record supported the trial court’s finding that the wife’s attorneys’ fees and costs were reasonable. Bousman v. Lhommedieu, 2013 Va. App. LEXIS 343 (Va. Ct. App. Nov. 26, 2013).

    Temporal focus of both of the statutes is the time an action is filed; a plaintiff cannot satisfy the statute by filing an action with the expectation that discovery will uncover support for his or her claims. Meuse v. Henry, 296 Va. 164 , 819 S.E.2d 220, 2018 Va. LEXIS 132 (2018).

    Arbitrators’ refusal to issue subpoenas did not establish that the award of attorney’s fees and costs had to be vacated because the award was based on the arbitrators’ finding that a stockholder commenced her action against her sister without reasonable cause; additionally, the arbitrators found that the stockholder’s claims were not well grounded in fact and were brought for the improper purpose of vindictiveness and harassment. Meuse v. Henry, 296 Va. 164 , 819 S.E.2d 220, 2018 Va. LEXIS 132 (2018).

    Vexatious litigant sanctioned with attorney’s fees and pre-filing injunction. —

    An appropriate sanction against a pro se litigant, who had filed numerous frivolous actions in the past challenging a county’s authority over the property of a former town whose charter was repealed, was the costs and attorney’s fees incurred by the county in defending against the litigant’s petition for writs of mandamus and prohibition. Furthermore, imposing a limited pre-filing injunction, requiring the litigant to obtain permission from the court before filing actions against the county, appeared also to be an appropriate sanction. Madison v. Bd. of Supervisors, 296 Va. 73 , 817 S.E.2d 818, 2018 Va. LEXIS 142 (2018).

    The Governor is not above the law and, where appropriate, is fully subject to the imposition of sanctions under this section. Gilmore v. Finn, 259 Va. 448 , 527 S.E.2d 426, 2000 Va. LEXIS 52 (2000).

    Actions filed by Governor. —

    While the Governor’s action in filing a suit is not clothed with a dispositive presumption of reasonableness or good faith, when the governor asserts a legal contention in the context of fulfilling the duty to protect the welfare of one or all the citizens of the commonwealth acting in the capacity as parens patriae, any doubts about the good faith of that action should be resolved in favor of the governor’s contention; it is only when the governor’s legal contention is totally without merit that his action is appropriately sanctioned. Gilmore v. Finn, 259 Va. 448 , 527 S.E.2d 426, 2000 Va. LEXIS 52 (2000).

    The Governor’s legal assertion that § 54.1-2990 prohibited the withdrawal of artificially administered hydration and nutrition from an individual in a persistent vegetative state because such withdrawal would initiate the dying process rather than merely permit the natural process of dying, while ultimately incorrect, was nevertheless not totally without merit; it could not be said that this interpretation had no reasonable possibility of being judicially adopted at the time this assertion was made in the trial court or that the Governor’s assertion that a conflict existed between the provisions of § 54.1-2990 and § 54.1-2986 lacked any objectively reasonable basis and the trial court erred, therefore, in awarding sanctions. Gilmore v. Finn, 259 Va. 448 , 527 S.E.2d 426, 2000 Va. LEXIS 52 (2000).

    Sanctions reversed. —

    Because an order barring all future appeals, regardless of their subject matter or merit, until a monetary sanction was paid, effectively closed the doors to the Court of Appeals on a father, including “appeals of right” under § 17.1-405 , the sanction of dismissal under § 8.01-271.1 was unduly severe. Switzer v. Switzer, 273 Va. 326 , 641 S.E.2d 80, 2007 Va. LEXIS 34 (2007).

    Trial court erred in its calculation of the attorney’s fees it could award as a sanction because the award included attorney’s fees that were not “incurred because of” any filing or motion made in the present action, but included attorney’s fees for actions that not only pre-dated any filing by a limited liability company in the present action, but also actions that occurred in a different state. EE Mart F.C., L.L.C. v. Delyon, 289 Va. 282 , 768 S.E.2d 430, 2015 Va. LEXIS 20 (2015).

    CIRCUIT COURT OPINIONS

    Applicability. —

    Defendant was not entitled to dismissal on the ground that the operator failed to execute the summonses where the operator had followed the method prescribed in § 33.2-503 , and given that § 33.2-503 prescribed the specific manner of executing summonses, the General Assembly did not intend for the instant cases to fall within the ambit of § 8.01-271.1 .Transurban v. D'Arco, 92 Va. Cir. 285, 2016 Va. Cir. LEXIS 33 (Fairfax County Feb. 3, 2016).

    Confessed judgment was not void for failure to state a claim because confessed judgments were not subject to formal pleading requirements and the confessed judgment met the statutory standards as to form and substance. Forge LLC v. Pearson, 101 Va. Cir. 221, 2019 Va. Cir. LEXIS 35 (Fairfax County Feb. 28, 2019).

    Persistent inaction when it is known that the defendant is the wrong party is functional fraud upon the court. —

    When an attorney becomes aware that he has sued an innocent party and agrees that such party should be dismissed, it acts as a functional fraud upon the court for the attorney not to dismiss the claim or otherwise rectify the situation. Persistent inaction after knowledge is obtained that a previous pleading is baseless causes all of the adverse repercussions which § 8.01-271.1 is designed to prevent. Rockingham Petroleum Co-Op, Inc. v. Distrib. Servs., 63 Va. Cir. 99, 2003 Va. Cir. LEXIS 359 (Rockingham County Aug. 27, 2003).

    Statute did not impose a continuing duty upon a lawyer to update his pleadings in light of any new findings, but the duty of reasonable inquiry arose each time a lawyer filed a pleading, motion, or other paper or made an oral motion. Domen v. Sugarman, 54 Va. Cir. 176, 2000 Va. Cir. LEXIS 568 (Richmond Nov. 27, 2000).

    Answer a nullity and stricken. —

    Because a corporate officer, who was a non-attorney, signed the answer in a representative capacity on behalf of the corporation, the answer as to the corporation was a nullity; because the corporation’s alleged answer was not signed promptly by an attorney after the omission was called to the attention of the corporation, the corporation’s alleged answer was stricken. Henson v. DDG II, Inc., 97 Va. Cir. 145, 2017 Va. Cir. LEXIS 324 (Norfolk Nov. 14, 2017).

    An objective standard of reasonableness is applied. —

    Trial court applied the objective standard of reasonableness that governed the analysis under § 8.01-271.1 , and found that dismissal with prejudice of the claimants’ amended motion for judgment was warranted, along with a monetary sanction imposed against the claimants, as their pleadings were not well grounded in fact, especially since the discovery process showed that several of their factual allegations had little, if any, evidentiary support. Hurst v. Soho & Beker, 72 Va. Cir. 604, 2006 Va. Cir. LEXIS 181 (Madison County Sept. 19, 2006).

    This section provides authority for a court to order sanctions, including reasonable attorney’s fees, against parties and attorneys who file pleadings or make motions for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Obrist v. Lantz, 73 Va. Cir. 80, 2007 Va. Cir. LEXIS 39 (Roanoke Mar. 12, 2007).

    When, through a mutual misunderstanding of counsel and the parties, the wrong insurer was named in the pleadings in a suit for underinsured motorist coverage, as an insurer’s subsidiary should have been named, the insurer’s refusal to authorize its counsel to consent to a continuance, contrary to counsel’s advice, caused a needless increase in the cost of litigation and was motivated by a desire to harass rather than a legitimate justiciable controversy, so it was proper to assess sanctions against the insurer. Obrist v. Lantz, 73 Va. Cir. 80, 2007 Va. Cir. LEXIS 39 (Roanoke Mar. 12, 2007).

    Inadvertent mistake. —

    Given the facts established by the affidavits, the circuit court denied a hospital’s request for relief under the statute because the award of sanctions related not to the original misleading answer to an interrogatory but on the failure thereafter to provide information about a hospital visit for a second opinion once the omission came to everybody’s attention. Robbins v. Sentara Hosps., 2020 Va. Cir. LEXIS 95 (Norfolk Mar. 9, 2020).

    No remedy provided merely because a party fails to reveal something to counsel. —

    When, during child support modification negotiations, a wife did not reveal her plans to accept employment paying a substantially higher salary, and, when her counsel signed a resulting consent decree, based on the amount she was earning in her prior employment, sanctions were not appropriate, because there was no evidence that her counsel knew of her change in employment or had any reason to inquire, and the wife could not be assessed sanctions under this statute because it was aimed at attorneys or unrepresented parties, rather than parties represented by counsel. Blankenship v. Blankenship, 63 Va. Cir. 88, 2003 Va. Cir. LEXIS 330 (Loudoun County Aug. 26, 2003).

    Amendment to cure defect in signature. —

    Failure of plaintiff’s complaint to include the signature of at least one of the two attorneys listed on the complaint could not be cured through an amendment of the complaint that would relate back to the date of the original complaint because §§ 8.01-6 through 8.01-6.2 did not authorize an amendment to relate back when the sole purpose was to correct a defect in signature. Lipoli v. Stutesman, 85 Va. Cir. 156, 2012 Va. Cir. LEXIS 170 (Norfolk Aug. 1, 2012).

    Appeal signed by parent of disabled adult. —

    Circuit court lacked jurisdiction to consider an appeal from the Virginia Department of Medical Assistance Services because the initial notice and petition of appeal were invalid as the applicant’s parent signed the parent’s own name on behalf of their disabled adult child on both the notice and the petition for appeal, when the signature of the applicant or counsel was required. The court did not have the authority to grant leave to amend in that there was no relation back to the original date of filing. Doebler v. Va. Dep't of Med. Assistance Servs., 98 Va. Cir. 22, 2017 Va. Cir. LEXIS 385 (Virginia Beach Oct. 30, 2017).

    Signature sufficient. —

    Motion to dismiss for the failure of counsel for the limited liability company (LLC) to sign the pleadings was overruled; it was sufficient that the member’s attorney signed, and there was no requirement for a second endorsement by counsel for the LLC. Balwanz v. Amole, 97 Va. Cir. 391, 2013 Va. Cir. LEXIS 224 (Westmoreland County Feb. 5, 2013).

    Pleading filed was valid. —

    Alleged tortfeasors’ motion to withdraw their plea in bar and motion to enforce settlement was denied, as their plea in bar and motion to enforcement was a valid pleading since their counsel had certified that he had read the pleading, that to the best of his knowledge the pleading was grounded in fact, and that the pleading was not made for any improper purpose; thus, because the injured party had requested that the court grant the plea in bar and enforce the settlement agreement, the alleged tortfeasors would not be allowed to withdraw the settlement agreement. Hossain v. Bullock, 2003 Va. Cir. LEXIS 172 (Fairfax County Aug. 6, 2003).

    Trial court denied the claimant’s motion for default or other relief, as even though the alleged wrongdoer’s amended answer was filed three days beyond the time allotted for filing it, the trial court had the discretion to extend the time for filing, the late filing was not made for the purpose of gaining a tactical advantage or otherwise in bad faith, and the pleading sufficiently complied with the requirements of § 8.01-271.1 , Va. Sup. Ct. R. 1:4(a), and the trial court’s orders. Fletcher v. Inova Health Care Servs., 71 Va. Cir. 331, 2006 Va. Cir. LEXIS 142 (Fairfax County Aug. 2, 2006).

    Prefiling review requirement. —

    Court declined to award sanctions to certain defendants under § 8.01-271.1 because, while one defendant mentioned facts which could, if true, support an improper purpose, the amended complaint order only set forth allegations against a different defendant, and the court would need to consider the demurrer and motion for summary judgment along with evidence related to the plaintiffs personal motivation prior to finding that sanctions should be awarded. CPM Virginia, LLC v. MJM Golf, LLC, 105 Va. Cir. 184, 2020 Va. Cir. LEXIS 668 (Chesapeake May 5, 2020).

    Complaint not filed in good faith. —

    Court found that plaintiff’s 4th amended complaint was not filed in good faith and should be dismissed as to certain individual defendants. The court also found a pre-filing injunction to be appropriate to sanction to prevent plaintiff’s filing of frivolous, harassing, and duplicative lawsuits. Myer v. All Dulles Area Muslim Soc'y, 102 Va. Cir. 77, 2019 Va. Cir. LEXIS 78 (Fairfax County Apr. 15, 2019).

    Though real estate buyer could have resolved his title problem more easily through a quiet title action than by filing a partition action against the sellers, that suit was not frivolous, and the sellers were not entitled to attorney fees. Smith v. Fleming, 55 Va. Cir. 315, 2001 Va. Cir. LEXIS 288 (Charlottesville June 14, 2001).

    Certification requirements for discovery. —

    Though literally “other papers” as used in Va. Sup. Ct. R. 4.1 falls within the ambit of § 8.01-271.1 , certification requirements for discovery papers should be governed by new Rule 4.1(g), the specific provision for pretrial discovery. Lester v. Allied Concrete Co., 80 Va. Cir. 454, 2010 Va. Cir. LEXIS 153 (Charlottesville June 28, 2010).

    Attorney’s fees. —

    Attorney’s fees and costs were awarded to a bank as a sanction for the filing of a complaint against the bank for an improper purpose as § 8.01-271.1 provided that the trial court could award attorney’s fees and costs. Khan v. Alliance Bank, 80 Va. Cir. 235, 2010 Va. Cir. LEXIS 50 (Fairfax County Mar. 24, 2010).

    Real estate broker, an agent, and their attorney violated § 8.01-271.1 when they filed an action against a broker, an agent, and prospective sellers arising out of an alleged agreement to sell a home where the action was filed for an improper purpose and without a proper basis in law and in fact. The proper sanction was an award of reasonable attorney’s fees. N. Va. Real Estate, Inc. v. Martins, 80 Va. Cir. 478, 2010 Va. Cir. LEXIS 72 (Fairfax County June 29, 2010), aff'd, 283 Va. 86 , 720 S.E.2d 121, 2012 Va. LEXIS 11 (2012).

    Defendant was not entitled to attorney fees pursuant to Va. Sup. Ct. R. 3:25 and Va. Code Ann. § 8.01-271.1 because the instant matter did not rise to the level to merit the award of sanctions. Simply because the jury did not enter judgment for plaintiff did not mean that the lawsuit was not well grounded in fact or supported by existing law. Trimark Corp. v. Affectionate Pet Care, L.L.C., 88 Va. Cir. 406, 2014 Va. Cir. LEXIS 47 (Fairfax County July 8, 2014).

    Sustaining of defendants’ demurrer did not warrant the assessment of fees because there was no indication that the pleading was interposed in the litigation for any inappropriate or unnecessary purpose; a party’s timely, good faith efforts to correct issues arising in pleadings without judicial involvement weighed against the imposition of sanctions based on those very errors. Yowell v. Marcus, 97 Va. Cir. 526, 2016 Va. Cir. LEXIS 327 (Frederick County Dec. 5, 2016).

    Authority to consider sanctions after nonsuit granted. —

    While a plaintiff failed to disclose prior medical treatment to the defendants, as the parties would have sufficient time to explore the preexisting condition issue if the action were refiled, and given the sanctions reimposed and those that the plaintiff would avoid by a nonsuit, pursuant to § 8.01-271.1 and Va. Sup. Ct. R. 4:1(g), the defendants were entitled to only an award of fees and expenses related to a review of the plaintiff’s answers and the discovery of and response to his untruthfulness. Hall v. Va. Int'l Terminals, Inc., 82 Va. Cir. 330, 2011 Va. Cir. LEXIS 181 (Norfolk Mar. 28, 2011).

    Sanctions appropriate. —

    Attorney violated § 8.01-271.1 , Va. Sup. Ct. R. 4:1(g), and Va. Sup. Ct. R. 4:12 by omitting an e-mail and by his failure to submit the subject e-mail to the court for in camera inspection. The attorney conceded that his behavior also violated Va. Sup. Ct. R. pt. 6, § II, R. 3.3 and 3.4; thus, he was liable for attorney fees. Lester v. Allied Concrete Co., 83 Va. Cir. 308, 2011 Va. Cir. LEXIS 245 (Charlottesville Sept. 6, 2011), dismissed, 83 Va. Cir. 308, 2011 Va. Cir. LEXIS 132 (Charlottesville Oct. 21, 2011), aff'd in part and rev'd in part, 285 Va. 295 , 736 S.E.2d 699, 2013 Va. LEXIS 8 (2013).

    When a decedent’s estate sued defendant nursing facility for negligence and wrongful death based on the decedent’s alleged fall on a wet floor while a patient at the facility, the estate had to pay the facility’s fees and costs incurred in moving to dismiss for lack of an expert certification because the allegations of the complaint directly implicated decisions regarding supervision, treatment, and control over the decedent, placing the allegations within the ambit of the Medical Malpractice Act, requiring a sanction. Donnelly v. Autumn Corp., 95 Va. Cir. 216, 2017 Va. Cir. LEXIS 41 (Chesapeake Feb. 27, 2017).

    Imposition of monetary sanctions against the counsel for a limited liability company (LLC) and the sole member of the LLC was just and appropriate because the action that was filed by the LLC against an attorney, for misappropriation of the LLC’s name and for legal malpractice, was frivolously filed. The LLC was created to mirror in name an entity belonging to the attorney, who was embroiled as a plaintiff in actions involving the sole member of the LLC, and for which the charter had lapsed out of status and been reinstated by the attorney. Leiser, Leiser & Hennessy, PLLC v. Leiser, 97 Va. Cir. 130, 2017 Va. Cir. LEXIS 314 (Fairfax County Nov. 2, 2017).

    Imposition of sanctions upon a litigant, including monetary sanctions and attorney’s fees, was appropriate because the litigant’s attachment with the intent to deceive of forged documents to filings with the circuit court, as well as their incorporation by reference in pleadings, which were relied upon at adjudicative hearings for a plea in bar and for a motion for sanctions subjected the litigant to civil sanctions. Sisira Kumara Kumaragamage Don v. Tera Int'l Grp., Inc., 100 Va. Cir. 365, 2018 Va. Cir. LEXIS 725 (Fairfax County Dec. 5, 2018).

    Sanctions awarded. —

    Sanctions were assessed against plaintiff’s lawyer in a medical malpractice case who had designated as experts three physicians, none of whom had consented to be expert witnesses in the case and none of whom held the opinions that the plaintiff’s lawyer alleged that they held. Anderson v. Winchester Surgical Clinic, 57 Va. Cir. 165, 2001 Va. Cir. LEXIS 429 (Warren County Dec. 4, 2001).

    Sanctions would be awarded against plaintiff’s counsel for repeatedly filing cases alleging that certain of his clients were of diminished capacity after one of his clients had been adjudicated competent; the current case’s allegations of mental incompetence were simply false as a matter of law, and not well grounded in fact. Lloyd v. Lloyd, 57 Va. Cir. 226, 2001 Va. Cir. LEXIS 435 (Shenandoah County Dec. 17, 2001).

    Sanctions were awarded against defendant attorney in an action arising under a retainer agreement for defendant attorney’s representation in a disciplinary proceeding where defendant attorney falsely attributed the loss of his appeal in the disciplinary proceeding to plaintiff attorney’s failure to timely file a transcript; even after a public reprimand for communicating with an opposing party who was represented by counsel after being informed of the opposing counsel’s representation, defendant attorney violated § 8.01-271.1 by filing a defense and counterclaim that contained a denial and factual allegations that he clearly knew were not true. Daniel v. Pilli, 56 Va. Cir. 525, 2001 Va. Cir. LEXIS 495 (Richmond Oct. 25, 2001).

    Claims that former attorney made against an attorney who was appointed as guardian for the former attorney’s mother were patently frivolous, and the trial court granted the guardian’s motion for sanctions and ordered the former attorney to pay the guardian $7,500. Morrissey v. Jennings, 60 Va. Cir. 179, 2002 Va. Cir. LEXIS 253 (Richmond Sept. 30, 2002).

    Where an individual never responded to a motion for summary judgment in a federal action and the current action was time-barred under § 8.01-246 , upon reconsideration, the prior imposition of sanctions for a baseless filing was appropriate. Tibbetts v. Eckert Seamans Cherin & Mellott, L.L.C., 61 Va. Cir. 639, 2002 Va. Cir. LEXIS 429 (Alexandria May 20, 2002).

    Where it was clear that the injured was not truthful in her discovery responses and her answers were a conscious attempt to conceal the truth, sanctions were awarded; if she won, the injured had to pay the corporation 25 percent of her verdict. Guertler v. Ukrop's Supermarkets, 61 Va. Cir. 59, 2003 Va. Cir. LEXIS 131 (Richmond Jan. 16, 2003).

    Despite the entry of prior sanctions against an attorney, his continuous filing of various suits against various defendants, who he alleged in one way or another committed torts against his decedent mother, warranted monetary sanctions, payment of attorney’s fees, and the requirement that he submit an application for leave with the clerk of the court if any additional cases were filed, certifying that said actions had never been raised before in a state or federal court, along with proof that he satisfied the instant order. Morrissey v. Rockingham Mem'l Hosp., 62 Va. Cir. 462, 2003 Va. Cir. LEXIS 287 (Richmond Aug. 28, 2003).

    Sanctions were imposed on a decedent’s son where the limitations periods for his conversion, fraud, and misrepresentation claims against an attorney related to his representation of the son during a prior criminal proceeding had clearly expired at the time the son filed the action, the son had failed to remove his mother’s estate from the pleadings, and the son had repeatedly filed frivolous actions. Morrissey v. Benjamin, 64 Va. Cir. 334, 2004 Va. Cir. LEXIS 196 (Richmond Apr. 6, 2004).

    Where a pro se debtor sent a threatening letter to an appellate judge regarding the amount of an appellate bond, a reprimand was issued; if the debtor felt that the bond was incorrect, the debtor had an obligation to pursue appropriate relief through § 16.1-106 et seq. Belfort Furniture, Inc. v. Stewart, 64 Va. Cir. 461, 2004 Va. Cir. LEXIS 154 (Loudoun County June 8, 2004).

    In a suit by an injured automobile passenger, an automobile dealer’s filing of unsubstantiated and unsupported affirmative defenses without a single ascertainable fact to back up the pleadings was a violation of this section; counsel chose not to avail himself of the opportunity to explain his good faith basis for pleading affirmative defenses without facts to substantiate them. Benitez v. Ford Motor Co., 68 Va. Cir. 156, 2005 Va. Cir. LEXIS 123 (Fairfax County June 14, 2005), aff'd, 273 Va. 242 , 639 S.E.2d 203, 2007 Va. LEXIS 18 (2007).

    Attorney was ordered to pay a company $500 and to complete a professionalism course where: (1) he certified that a case was matured for trial on its merits, when no process had been issued nor service obtained; (2) more than one year had elapsed since the suit was filed and there was no evidence that the attorney had made any effort to effect service of process upon the company; (3) he had not made any effort, before signing and filing the praecipe, to ascertain whether it was grounded in fact; (4) he had not made any effort to ascertain whether he was suing the proper defendant; and (5) he had not done any research to determine whether, since the original suit was still on the docket, the declaratory judgment suit was well grounded in fact and warranted by existing law. Bevil v. Rawlings Co., 70 Va. Cir. 3, 2005 Va. Cir. LEXIS 280 (Roanoke Apr. 6, 2005).

    Because an owner’s § 18.2-456 request for a show cause was not grounded in law or fact and was brought for the purpose of punishing the citizens who opposed his rezoning application and cost him “a lot of money,” the citizens were awarded their attorneys’ fees and costs. Sowers v. Bd. of Supervisors, 71 Va. Cir. 324, 2006 Va. Cir. LEXIS 155 (Nottoway County July 31, 2006).

    Trial court has no inherent power to assess attorneys fees against a party litigant or against counsel, but § 8.01-271.1 provides a basis for sanctions even when oral motions are used for improper purposes. Obrist v. Lantz, 73 Va. Cir. 80, 2007 Va. Cir. LEXIS 39 (Roanoke Mar. 12, 2007).

    Sanctions were awarded under § 8.01-271.1 against a judgment debtor’s counsel as the debtor’s counsel did not make a reasonable investigation of the claims the debtor’s counsel asserted as: (1) the debtor had raised the claims asserted in a 2006 action; (2) the claims were barred by res judicata; (3) the debtor’s counsel was advised by a judgment creditor’s counsel that the claims had been resolved in the 2006 action; (4) the debtor’s counsel did not review the 2006 trial court file or transcript; and (5) the debtor’s counsel continued to represent to the trial court that its pleadings were well grounded in fact and law. Gray Diversified Asset Mgmt. v. Canellis, 77 Va. Cir. 187, 2008 Va. Cir. LEXIS 147 (Fairfax County Oct. 7, 2008).

    Sanctions were imposed on a real estate brokerage company, a realtor, and others in a suit based on a failed transaction because there was no factual basis to support their claims, and after imposition of discovery sanctions, whereby they admitted the lack of a basis for their claims, they proceeded to a three day trial before taking a voluntary nonsuit. N. Va. Real Estate, Inc. v. Martins, 79 Va. Cir. 667, 2009 Va. Cir. LEXIS 70 (Fairfax County Mar. 17, 2009).

    Defendant’s motion to strike the testimony of five experts as repetitious, duplicative, and unduly burdensome violated § 8.01-271.1 and entitled plaintiff to sanctions because the motion was not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. Hutchison v. Hagadone, 78 Va. Cir. 185, 2009 Va. Cir. LEXIS 156 (Loudoun County Mar. 13, 2009).

    Attorney was assessed a fine as a sanction where he filed an action that was improperly characterized as a class action, and where service of process was not proper, improper parties were named, the plaintiffs were inadequately identified, and inappropriate relief was requested. Chester v. Beyeler, 79 Va. Cir. 642, 2009 Va. Cir. LEXIS 217 (Augusta County Dec. 28, 2009).

    Wife’s attorney was required to pay attorney’s fees as a sanction because when he signed the complaint, he certified that he had knowledge of sufficient facts to support a divorce based upon adultery, but he failed to allege the time, place, and circumstances of the alleged adultery with the required specificity. Keeler v. Keeler, 80 Va. Cir. 205, 2010 Va. Cir. LEXIS 24 (Fairfax County Mar. 8, 2010).

    Sanctions were imposed on a member of a limited liability company and the member’s counsel as a suit was filed for an improper purpose under § 8.01-271.1 , to obtain from the bank $35,000 that had already been paid out by the bank at the request and instruction of the member, and counsel had signed the certification stating that the complaint was not filed for an improper purpose. Khan v. Alliance Bank, 80 Va. Cir. 235, 2010 Va. Cir. LEXIS 50 (Fairfax County Mar. 24, 2010).

    Homeowners’ attorney filed a lawsuit against lenders, which lawsuit lacked a proper basis either in law or in fact and was filed with the purpose of harassing the lenders and causing unnecessary delay and needless increase in the cost of litigation, and failed to attach any documents supporting the complaint. These actions violated § 8.01-271.1 , and the imposition of the lenders’ reasonable attorney’s fees was an appropriate sanction. Minix v. Wells Fargo Bank, 81 Va. Cir. 130, 2010 Va. Cir. LEXIS 115 (Fairfax County Aug. 24, 2010).

    In filing and maintaining a civil conspiracy action, plaintiff veterinarian and his attorney violated § 8.01-271.1 , and sanctions were ordered against both the litigant and the attorney, where a reasonable pre-filing inquiry would have disclosed that there was no rational basis to believe that the lawsuit was legally viable. Boyce v. Pruitt, 80 Va. Cir. 590, 2010 Va. Cir. LEXIS 171 (Patrick County July 28, 2010).

    Counsel violated Va. Sup. Ct. R. pt. 6, § II, R. 3.3(a) and § 8.01-271.1 by maintaining that defense counsel “hacked into” or made unauthorized access to plaintiff’s Facebook account during a hearing in open court, based on no inquiry into the relevant facts beyond the bare, unsubstantiated assertions of his client. Lester v. Allied Concrete Co., 80 Va. Cir. 454, 2010 Va. Cir. LEXIS 153 (Charlottesville June 28, 2010).

    In a brain injury case, plaintiff ’s counsel violated § 8.01-271.1 by asserting that opposing counsel, in proposing to introduce Facebook and Myspace postings and photographs regarding the plaintiff from plaintiff ’s family members, had violated the victim’s privacy rights because such information was readily accessible on the internet. Womack v. Yeoman, 83 Va. Cir. 401, 2011 Va. Cir. LEXIS 143 (Richmond Oct. 28, 2011).

    Trial court awarded attorneys’ fees because, despite the plaintiff’s pro se status and the liberal reading of the plaintiff’s arguments, the plaintiff’s claims were not warranted by existing law or a good faith argument for the modification of existing law, the plaintiff’s lawsuit and communications were vexatious and pursued for an improper purpose, and the plaintiff’s pleadings and communications with counsel were uncivil, unnecessarily discourteous, and riddled with ad hominem attacks. Lepelletier v. Will Nesbitt Realty, LLC, 88 Va. Cir. 285, 2014 Va. Cir. LEXIS 20 (Fairfax County May 21, 2014).

    Sanctions and costs were imposed against an ex-wife and her attorneys because they filed and recklessly pursued the case, alleged causes of action without any reasonable factual predicate so that the ex-wife could harass her ex-husband and his associates in an effort to re-litigate their divorce, the ex-wife failed to provide notice of her nonsuit to the defendants within seven days of trial, one attorney failed to include the requisite details of the experts’ opinions, and the second attorney neglected his duty to reasonably investigate the ex-wife’s allegations before signing and filing pleadings with the court. Christ v. Flinthill Space Communs. Trust, 2013 Va. Cir. LEXIS 201 (Fairfax County June 14, 2013).

    Parents failed to obtain a necessary certifying expert opinion as required; the acts of negligence alleged involved medical knowledge not within the range of the jury’s common knowledge and experience, so a certifying expert opinion was necessary, and as a sanction, as the parents had sufficient time to prepare an appropriate expert certification and defendants had been prejudiced, the action was dismissed with prejudice. Susko v. Toor, 91 Va. Cir. 372, 2015 Va. Cir. LEXIS 169 (Norfolk Nov. 12, 2015).

    To the extent counsel filed suit in a patient’s personal capacity with the understanding that the patient was not incapacitated, counsel failed to meet with the patient prior to filing suit on her behalf or to complete the due diligence required prior to signing the initial complaint; thus, counsel was ordered to pay costs because his actions forced a medical provider to unnecessarily incur costs and fees associated with unnecessary motions that could have been avoided. Byington v. Sentara Life Care Corp., 94 Va. Cir. 70, 2016 Va. Cir. LEXIS 198 (Norfolk Dec. 30, 2016).

    Alleged guarantor was entitled to sanctions against lawyers and a law firm, who sued based on an alleged guarantee of another’s obligation to pay attorney’s fees because reasonable inquiry would have revealed the alleged guarantee was unenforceable, as the guarantee was a promise to answer for the debt of another subject to the Statute of Frauds, since the alleged guarantor’s statement was an undertaking of the same obligations owed by the other to the law firm, which had to be memorialized in writing and signed by the alleged guarantor, but the statement was not so memorialized, so the claim against the alleged guarantor was not warranted. Goldman v. Nat'l Slavery Museum, 96 Va. Cir. 356, 2017 Va. Cir. LEXIS 301 (Richmond Sept. 15, 2017).

    Defendant’s motion for sanctions was granted because, although plaintiff’s attorney asserted that she went through hundreds of pages of plaintiff’s medical documents, not one of the three doctors rendered an opinion as to whether plaintiff’s injuries were caused by defendant’s alleged sexual assault; the attorney admitted that she did not speak with any of the three doctors; while the attorney might initially have had a reasonable objective basis to believe that the three doctors would testify at trial during the first case, she was put on notice at the conclusion of the first case that none of the doctors were willing to testify as an expert witness; and, without evidence of any further development, the attorney recommenced the lawsuit. Fathi v. Nasir, 100 Va. Cir. 292, 2018 Va. Cir. LEXIS 610 (Fairfax County Nov. 7, 2018).

    Sanctions not awarded. —

    Sanctions would not be awarded against plaintiff’s counsel where the court could not conclude that one of his clients, who was not incompetent but was of diminished mental capacity, could not institute a cause of action in propria persona. Lloyd v. Lloyd, 57 Va. Cir. 226, 2001 Va. Cir. LEXIS 435 (Shenandoah County Dec. 17, 2001).

    Where reputable counsel filed answers to discovery and opposing counsel could not either allege that such responses were not grounded in fact, or allege that such responses were interposed for an improper purpose, the court would not, and did not believe it could, impose sanctions. Cornerstone Custom Homes v. Blackstock, Inc., 61 Va. Cir. 658, 2002 Va. Cir. LEXIS 323 (Roanoke Sept. 10, 2002).

    Trial court refused to award sanctions for the filing of a petition for the appointment of a receiver for a defunct corporation alleging that the defunct corporation owned an interest in property, after a previous petition for the appointment of a receiver had resulted in a decree holding that the defunct corporation had no interest in the property; although the second petition was barred under the doctrine of collateral estoppel, the parties had acted reasonably, and the third-party defendant was legally incompetent at the time that the second petition was filed. Va. Beach Holding Corp., 61 Va. Cir. 401, 2003 Va. Cir. LEXIS 145 (Virginia Beach Mar. 31, 2003).

    Plaintiffs had filed a breach of contract suit against a husband; their subsequent suit against him and his wife based on the same cause of action was dismissed on the basis of res judicata. As plaintiffs’ attorney could have reasonably believed the pleadings were warranted by existing law, and that they were filed in a good-faith attempt to advance his clients’ position, given their inability to collect from the husband, defendants’ motion for sanctions was denied. Birgin v. Tzaferis, 81 Va. Cir. 475, 2005 Va. Cir. LEXIS 125 (Fairfax County Aug. 10, 2005).

    Because defendant’s demurrer only raised two points that arguably challenged the legal sufficiency of the plaintiff’s claim for malicious prosecution, and because oyer did not lie, no sanctions were awarded and the court would set the trial date. Dove v. Minor, 2006 Va. Cir. LEXIS 5 (Orange County Jan. 10, 2006).

    Doctor was not entitled to attorney fees where his motion to quash a subpoena was granted as there was no controlling caselaw addressing the question whether Va. Sup. Ct. R. 4:10 provided a legal basis for issuing a subpoena to a proposed examiner before he had been appointed by the trial court, performed his examination, and rendered his report. Young v. Food Lion Store No. 622, 70 Va. Cir. 313, 2006 Va. Cir. LEXIS 31 (Portsmouth Mar. 23, 2006).

    Because there was no motion for sanctions pending after a nonsuit order was entered, a law firm had no entitlement to have the final order suspended for the purpose of considering a motion that it hoped to file requesting sanctions under § 8.01-271.1 .Fell v. Leiser & Assocs., P.L.L.C., 74 Va. Cir. 555, 2006 Va. Cir. LEXIS 198 (Fairfax County Oct. 30, 2006).

    Circuit court declined to award attorney’s fees to assignees on the ground that purchasers’ allegations of conspiracy to defraud, fraud, and constructive fraud were “absurd because the assignees failed to prove a factual or legal basis for an award of attorney’s fees when the opinion of counsel was not sufficient to prove that it was objectively unreasonable for the purchasers to assert those claims. the circuit court’s order dismissing the fraud-related claims did so without prejudice, which indicated that while the counts were not sufficiently pled, the circuit court did not find them to be devoid of a foundation in fact or law. Shehadeh v. Fountains at McLean Condo. Unit Owners Ass'n, 79 Va. Cir. 103, 2009 Va. Cir. LEXIS 53 (Fairfax County June 24, 2009).

    Sanctions under § 8.01-271.1 and cost indemnification under § 13.1-672.5 were not available to a corporation and its officers following the dismissal of a shareholders’ action because the shareholders made reasonable inquiry and had a reasonable basis in law and fact for each claim, and none of the counts were brought or maintained arbitrarily, vexatiously, or in bad faith. Parsch v. Massey, 79 Va. Cir. 446, 2009 Va. Cir. LEXIS 265 (Charlottesville Nov. 5, 2009).

    Sanctions against an attorney who nonsuited his case midtrial after his expert’s opinions were excluded were not appropriate under § 8.01-271.1 because the attorney could have reasonably believed the physician’s expert reports were warranted by existing law and fact, although the opinions were eventually excluded. Mohlmann v. Republic Servs. of Va., LLC, 81 Va. Cir. 293, 2010 Va. Cir. LEXIS 135 (Fairfax County Nov. 1, 2010).

    In a medical malpractice case, signing an affidavit to initiate service did not warrant the imposition of sanctions because the record indicates that the affidavit was signed one day short of the statutory limit of one year. It was reasonable to believe the affidavit would have effected service on a doctor within the prescribed time. Branch v. Augusta Health Care, Inc., 92 Va. Cir. 126, 2015 Va. Cir. LEXIS 206 (Augusta County Aug. 21, 2015).

    Corporate defendant was not entitled to the imposition of sanctions because the corporate defendant did not meet its burden in proving that sanctionable conduct occurred. Ey v. Blume, 92 Va. Cir. 293, 2016 Va. Cir. LEXIS 6 (Fairfax County Feb. 5, 2016).

    Sanctions pursuant to § 8.01-271.1 were unavailable to a college based on an assertion that a student provided an untruthful interrogatory answer and false deposition testimony where the student was represented by an attorney. Doe v. Va. Wesleyan Coll., 93 Va. Cir. 215, 2016 Va. Cir. LEXIS 80 (Norfolk May 13, 2016).

    Structured settlement purchaser’s motion for sanctions was denied where each party presented little more than mere rumor and suspicion as to the existence and location of the original settlement agreement that provided the settlement recipient his initial right to receive payments from an insurer. SAF Funding, LLC v. Taylor, 98 Va. Cir. 10, 2017 Va. Cir. LEXIS 316 (Portsmouth Oct. 27, 2017).

    Sellers satisfied the statute because the complaint and their reliance on a waiver argument were sufficiently well grounded in fact and warranted by existing law and not interposed for any improper purpose; although the mediation condition precedent had not been fully satisfied, the sellers, in light of the purchasers’ failure to respond to mediation requests, had little choice but to resort to seeking assistance from the circuit court. Bates v. Purdon, 101 Va. Cir. 104, 2019 Va. Cir. LEXIS 29 (Norfolk Jan. 25, 2019).

    Independent contractor was not entitled to attorney fees because a genuine dispute existed between the parties as to when and how he should have transferred the bank’s web domains to a host account owned by the bank and therefore the bank’s lawsuit was not frivolous or filed in bad faith. Highlands Union Bank v. Chaffin, 101 Va. Cir. 355, 2019 Va. Cir. LEXIS 73 (Washington County Mar. 21, 2019).

    Evidence was insufficient to sanction a limited liability company or its counsel for the filing of a complaint, though it appeared to contain factual inaccuracies, because there was no evidence adduced that indicated counsel failed to make reasonable inquiry and knew or should have known at the time he filed the complaint that it contained any falsity. HCP Properties-Fair Oaks of Fairfax VA, L.L.C. v. Fairfax Cty., 102 Va. Cir. 160, 2019 Va. Cir. LEXIS 161 (Fairfax County May 24, 2019).

    Court declined to impose sanctions against plaintiff pursuant to this section because plaintiff’s argument that a conspiracy could be inferred from the timing of the case was not frivolous or without merit. Thornlea Real Estate Ventures, LLC v. Va. CU Realty LLC, 2021 Va. Cir. LEXIS 24 (Culpeper County Feb. 15, 2021).

    Removal of counsel. —

    Although a circuit court could not impose by statute a sanction against an attorney for the attorney’s conduct in an adoption case and in the case before the court, the court found that the attorney’s failure to disclose the entry of the adoption and the false statements that the attorney knowingly made about the status of the adoption were of the greatest concern. Accordingly, the court, under its inherent authority, removed the attorney as counsel for the adoptive parents in the case before the court and in the adoption case. Ottrix v. Knight, 99 Va. Cir. 424, 2018 Va. Cir. LEXIS 320 (Norfolk Aug. 7, 2018).

    Motion to quash subpoena duces tecum granted. —

    Defendants’ motion to quash a subpoena duces tecum was granted because plaintiff did not submit sufficient evidence to show that statements anonymous communicator(s) wrote about her on a website were defamatory and did not did not demonstrate that she had a legitimate, good faith basis to contend that she was the victim of conduct actionable; the statement were of opinion or rhetorical hyperbole and were entitled to First Amendment protection. Geloo v. Doe, 88 Va. Cir. 379, 2014 Va. Cir. LEXIS 36 (Fairfax County June 23, 2014).

    OPINIONS OF THE ATTORNEY GENERAL

    Verbal direction to sheriff’s deputies to take defendant into custody for a specified number of hours, is equivalent to a written order and therefore is binding upon the sheriff’s office, and sheriff’s deputies carrying out such orders enjoy the same qualified sovereign immunity they have when others are in their custody. See opinion of Attorney General to The Honorable Dennis S. Proffitt, Sheriff, County of Chesterfield, 10-069, 2010 Va. AG LEXIS 52 (8/30/10).

    Prefiling review. —

    A district court may, pursuant to § 8.01-271.1 , impose a pre-filing review requirement if such a sanction is appropriate. Further, a district court has the inherent authority to limit or prevent an attorney or a litigant from practicing before it in the event the court determines, after a hearing, that the attorney or litigant has engaged in the unauthorized practice of law or otherwise has engaged in unprofessional or unethical conduct. See opinion of Attorney General to The Honorable Barbara J. Gaden, Judge, Richmond General District Court, 10-068, 2010 Va. AG LEXIS 51 (8/30/10).

    § 8.01-272. Pleading several matters; joining tort and contract claims; separate trial in discretion of court; counterclaims.

    In any civil action, a party may plead as many matters, whether of law or fact, as he shall think necessary. A party may join a claim in tort with one in contract provided that all claims so joined arise out of the same transaction or occurrence. The court, in its discretion, may order a separate trial for any claim. Any counterclaim shall be governed by the Rules of the Supreme Court of Virginia.

    History. Code 1950, § 8-134; 1954, c. 333; 1977, c. 617; 1979, c. 367; 2005, c. 681.

    REVISERS’ NOTE

    Section 8.01-272 extends former § 8-134 and overrules the prior prohibition against the joinder of tort and contract claims. See, e.g., Kavanaugh v. Donovan, 186 Va. 85 , 93, 41 S.E.2d 489 (1947); Standard Products v. Woolridge, 214 Va. 476 , 201 S.E.2d 801 (1974). The term “claim” encompasses any counterclaim, cross-claim, or third-party claim. However, § 8.01-272 does not go as far as FRCP 18 (a) in that § 8.01-272 restricts the joinder to claims arising out of the same transaction or occurrence. The court may, upon motion, sever such claims for separate trial.

    Cross references.

    For rules of court on filing answers and grounds of defense after pleas and demurrers have been overruled, see Rule 3:8.

    For rule abolishing pleas of the general issue, see Rule 3:8.

    For rule of court as to including several pleadings in the same paper, see Rule 3:18.

    The 2005 amendments.

    The 2005 amendment by c. 681, effective January 1, 2006, in the last sentence, deleted “brought in an action under Part Three of the Rules of Court” following “counterclaim” and substituted “by the Rules of the Supreme Court of Virginia” for “by such Rules.”

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

    For a re-examination of sovereign tort immunity in Virginia, see 15 U. Rich. L. Rev. 247 (1981).

    For comment on tort and contract aspects of legal malpractice in Virginia, see 16 U. Rich. L. Rev. 907 (1982).

    For article on the abolition of the forms of action in Virginia, see 17 U. Rich. L. Rev. 273 (1983).

    For annual survey commentary, “The Merger of Common-Law and Equity Pleading in Virginia,” see 41 U. Rich. L. Rev. 77 (2006).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 21, 26.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    This section could not be applied retroactively to allow the joinder of actions in tort and contract where the statute became effective more than 10 months after final judgment in the trial court and almost three months after a writ of error was granted, since application of the statute might materially change the substantive rights of a party, as distinguished from the procedural aspects of the remedy. Goodstein v. Weinberg, Buffenstein, Hirschler & Fleischer, 219 Va. 105 , 245 S.E.2d 140, 1978 Va. LEXIS 166 (1978).

    This section changed common-law rule applicable to misjoinder and expressly permitted a party to join claims in tort with claims in contract if the claims arose out of the same transaction or occurrence. Thus, the special circumstances which compelled the result in Goodstein v. Weinberg, 219 Va. 105 , 245 S.E.2d 140 (1978) are unlikely to recur. MacLellan v. Throckmorton, 235 Va. 341 , 367 S.E.2d 720, 4 Va. Law Rep. 2524, 1988 Va. LEXIS 50 (1988).

    Joinder of claims. —

    Circuit court properly dismissed a seller’s second suit against the buyer on the basis of res judicata because the seller’s claims — for settlement, oral contract, and quantum meruit — all fit within a single factual narrative — to be paid for work it did for the buyer — and accrued before the seller had ever filed the first suit for breach of an alleged settlement agreement, and the seller’s alternative claims qualified for joinder under the “same transaction or occurrence” standard and constituted res judicata under the same standard where no disqualifying principle of res judicata applied. Funny Guy, LLC v. Lecego, LLC, 293 Va. 135 , 795 S.E.2d 887, 2017 Va. LEXIS 7 (2017).

    Dismissal for misjoinder of defendants and causes of action held erroneous. —

    Where a fair reading of the amended motion for judgment showed that plaintiff pleaded alternative theories of recovery against the same group of defendants and that the claims arose out of the same transaction or occurrence; the trial court erred in dismissing plaintiff’s action on the ground of misjoinder of parties defendant and causes of action. Fox v. Deese, 234 Va. 412 , 362 S.E.2d 699, 4 Va. Law Rep. 1248, 1987 Va. LEXIS 272 (1987).

    The plaintiff’s claim against driver for negligent operation of an automobile does not arise from the same transaction or occurrence as the plaintiff’s claim against doctor for medical malpractice where first, there was negligent operation of a motor vehicle by driver resulting in an accident; and, then there was negligent medical treatment of plaintiff at a later date by the doctor resulting in injury. Powers v. Cherin, 249 Va. 33 , 452 S.E.2d 666, 1995 Va. LEXIS 17 (1995).

    Decision not to bifurcate compensatory and punitive damages portion of case upheld. —

    There was no abuse of discretion in the trial court’s decision not to bifurcate the compensatory and punitive damages portions of a case where plaintiffs alleged that a driver and owner were drunk at the time of a head-on collision; when considering a request for separate trials, the trial court had to consider any resulting unnecessary delay, expense, or use of judicial resources that would flow from separate trials of the claims at issue. Allstate Ins. Co. v. Wade, 265 Va. 383 , 579 S.E.2d 180, 2003 Va. LEXIS 53 (2003).

    II.Decisions Under Prior Law.

    Editor’s note.

    Demurrer and plea to whole declaration. —

    It is settled under our statute that a plea and demurrer, at the same time, to the whole declaration, are admissible. Stone & Co. v. Patterson, 10 Va. (6 Call) 71, 1806 Va. LEXIS 17 (1806); Syme v. Griffin, 14 Va. (4 Hen. & M.) 277, 1809 Va. LEXIS 52 (1809) (see also Bassett v. Cunningham, 34 Va. (7 Leigh) 402 (1836); C & O Ry. v. American Exch. Bank, 92 Va. 495 , 23 S.E. 935 (1896)).

    If a defendant plead and demur to the whole declaration, and the demurrer be overruled, judgment ought not to be entered, without first trying the issues joined on the other pleas. Waller v. Ellis, 16 Va. (2 Munf) 88, 1810 Va. LEXIS 89 (1810).

    Pleading several matters in one plea. —

    The several matters are intended to be pleaded in several pleas, and if the defendant include several distinct matters of defense in one plea, he has no right to complain of the plaintiff for replying generally to such plea. If the plaintiff in such case can be said to be guilty of a fault in pleading, it is induced by his adversary, who is guilty of the first fault. O'Bannon v. Saunders, 65 Va. (24 Gratt.) 138, 1873 Va. LEXIS 9 (1873).

    Inconsistent pleas are allowable, and in trying one, the court cannot look to the existence of the other, hence each branch of the pleading is looked on as totally separate and distinct from every other, and the defenses under one cannot be straightened or curtailed by the existence of the other. Were it otherwise, the liberty of pleading several, and even contradictory, pleas would be defeated. Waller v. Ellis, 16 Va. (2 Munf) 88, 1810 Va. LEXIS 89 (1810); Norfolk Hosiery & Underwear Mills v. Aetna Hosiery Co., 124 Va. 221 , 98 S.E. 43 , 1919 Va. LEXIS 173 (1919); Wilroy v. Halbleib, 214 Va. 442 , 201 S.E.2d 598, 1974 Va. LEXIS 158 (1974).

    Under this section to revive a default judgment in ejectment, denying service of process, declaration, and notices in the manner at the time and places stated in the returns, and alleging service by an unauthorized person, are not objectionable, though repugnant. King v. Davis, 137 F. 198, 1903 U.S. App. LEXIS 5453 (C.C.D. Va. 1903).

    And alternate defenses may be submitted to jury. —

    Where the contestant of a will could assert inconsistent defenses and present evidence based on those defenses, it would not constitute error to submit to the jury the alternate defenses of undue influence and forgery if justified by the evidence. Wilroy v. Halbleib, 214 Va. 442 , 201 S.E.2d 598, 1974 Va. LEXIS 158 (1974).

    But not pleas of matters already pleaded. —

    Where the matter of a plea is already in issue, the plea is wholly unnecessary, and this is good ground for rejecting it. Reed v. Hanna, 24 Va. (3 Rand.) 56, 1824 Va. LEXIS 42 (1824); Fant v. Miller, 58 Va. (17 Gratt.) 47, 1866 Va. LEXIS 7 (1866).

    Although this section gives the defendant the right to plead as many matters of defense as he chooses, yet it does not give him the “absolute right” to his special pleas setting up defenses admissible under pleas already received, and the court may strike out such special pleas though already admitted and issue joined. Virginia Fire & Marine Ins. Co. v. Buck, 88 Va. 517 , 13 S.E. 973 , 1891 Va. LEXIS 65 (1891).

    Demurrer to pleading previously answered. —

    Though a demurrer, an answer and other defensive pleadings may be filed at the same time, yet after an answer has been properly filed in a chancery cause, and so long as it remains filed, a litigant, adult or infant, should not thereafter be allowed to demur to the pleading that has been previously answered. Whether or not the answer may be withdrawn and the litigant then allowed to demur rests in the court’s sound discretion. O'Neill v. Cole, 194 Va. 50 , 72 S.E.2d 382, 1952 Va. LEXIS 206 (1952).

    Filing of special plea does not waive other defenses. —

    In a proceeding by notice of motion for judgment on notes, a special plea setting up the breach of a collateral agreement is not a waiver of other grounds of defense, for a defendant may plead as many matters of law or fact as he may think necessary, and he is not required to file all of his pleas in bar at the same time. Duncan v. Carson, 127 Va. 306 , 103 S.E. 665 , 1920 Va. LEXIS 52 (1920).

    Motion to strike. —

    Special demurrers having been abolished, the motion to strike out or reject can be used to obviate objections to pleadings such as duplicity and the like, which cannot now be raised by demurrer. C & O Ry. v. Rison, 99 Va. 18 , 37 S.E. 320 , 1900 Va. LEXIS 119 (1900).

    Where the objection to a second plea is that the matter of that plea is already put in issue, the party ought not to be put to the hazard of a demurrer, in order to avail himself of the objection; the proper and safe practice being, to try that question on a motion to reject the plea, or to strike it out, if it has been entered on record. Reed v. Hanna, 24 Va. (3 Rand.) 56, 1824 Va. LEXIS 42 (1824).

    Objection is the proper remedy when the plea is not appropriate to the action. Skeen v. Belcher, 128 Va. 122 , 104 S.E. 582 , 1920 Va. LEXIS 98 (1920).

    An objection will not take the place of the formal motion to strike out or reject. Bank of Bristol v. Ashworth, 122 Va. 170 , 94 S.E. 469 , 1917 Va. LEXIS 93 (1917).

    Section applies to proceedings in equity. —

    This section is extended by analogy to proceedings in courts of equity. Elmore v. Maryland & Va. Milk Producers' Ass'n, 145 Va. 42 , 134 S.E. 472 , 1926 Va. LEXIS 372 (1926).

    CIRCUIT COURT OPINIONS

    Pleading of alternative causes of action permitted. —

    Lessors were not precluded from pleading in the alternative the disparate theories of recovery of trespass and waste because the lessors did not successively change their position but merely asserted multiple alternative theories of recovery in their counterclaim, and such alternative pleading was clearly permitted under the statute and was common in practice; hence, the lessors could plead alternative causes of action based on contradictory theories. Ticonderoga Farms, LLC v. Knop, 97 Va. Cir. 479, 2017 Va. Cir. LEXIS 157 (Loudoun County Aug. 23, 2017).

    Demurrer on grounds of misjoinder denied. —

    As plaintiff’s allegations of fraud and breach of contract both arose out of a mortgage company’s alleged failure to disclose to plaintiff all known material facts regarding a contractor it had hired, the joinder of these claims complied with § 8.01-272 . Therefore, the claims were not subject to demurrer as being multifarious. Mack v. Orion Inv. Corp., 2002 Va. Cir. LEXIS 468 (Norfolk Mar. 5, 2002).

    Suit alleged that defendant, around the time he was terminated, violated various provisions of two contracts and committed various torts to permit him to benefit impermissibly and illegally from his former employer; as these were claims arising out of the same transaction or occurrence, and it was efficient and logical for all of these matters to be disposed of in one lawsuit, defendant’s demurrer based on the claim of misjoinder was overruled. McGladrey & Pullen, L.L.P. v. Shrader, 62 Va. Cir. 401, 2003 Va. Cir. LEXIS 274 (Rockingham County Aug. 11, 2003).

    Car dealer’s demurrer to a buyer’s amended motion for judgment was overruled as: (1) the tort and contract claims demonstrated an ongoing series of negotiations with respect to one specific good, the purchase of a car, (2) the claims involved the same witnesses, documents, and nexus of facts, and (3) judicial economy would be served by trying the claims together; that insurance information would be introduced at trial with respect to the contract claim, but it would be improper to introduce such information with respect to the tort claims could be remedied by limiting jury instructions. The trial court refused to sever the contract claim. Sykes v. Brady-Bushey Ford, Inc., 69 Va. Cir. 219, 2005 Va. Cir. LEXIS 323 (Charlottesville Oct. 27, 2005).

    Plaintiffs’ amended complaint was not infirm due to misjoinder of parties or claims in violation of § 8.01-272 because a fair reading of the amended complaint showed that plaintiffs pleaded alternative theories of recovery against the same group of defendants and that the claims arose out of the same transaction or occurrence; that same transaction or occurrence was the alleged misappropriation of a decedent’s property and estate during her final illness and immediately after her death. Kirchner v. McAninley, 2011 Va. Cir. LEXIS 27 (Fairfax County Mar. 14, 2011).

    Joinder of claims. —

    Demurrer as to a subrogee’s negligence count was denied because the statute allowed pleading the same theory against multiple defendants. Occidental Fire & Cas. Co. v. AREVA Inc., 100 Va. Cir. 45, 2018 Va. Cir. LEXIS 322 (Nelson County Sept. 18, 2018).

    Election of remedies. —

    Where car buyer who was sold a used car that was represented to be a new car was awarded damages for both fraud and for a violation of the Virginia Consumer Protection Act, the buyer had to elect between remedies, as both causes of action were based upon a single transaction. Wilkins v. Peninsula Motor Cars, Inc., 59 Va. Cir. 329, 2002 Va. Cir. LEXIS 247 (Newport News Aug. 8, 2002).

    Legal malpractice, breach of contract, and negligence based on breach of contract may all be pleaded. —

    While breach of contract, negligence based on a breach of contract, and legal malpractice appear to be essentially the same causes of action, §§ 8.01-272 and 8.01-281 , and Va. Sup. Ct. R. 1:4 allow a party to plead as many matters, whether of law or fact, as he shall think necessary, as long as the claims arise out of the same transaction or occurrence. Lockney v. Vroom, 61 Va. Cir. 359, 2003 Va. Cir. LEXIS 263 (Norfolk Mar. 21, 2003).

    Severance ordered for confidentiality of medical records claims. —

    Patient’s two claims set forth in separate counts alleging that the first physician and the second physician disclosed to different people on two separate occasions 18 months apart that she was HIV-positive, a status that she had tried to keep confidential, were misjoined; however, the “ends of justice” dictated not that the first physician, second physician, and hospital’s demurrer be granted, but that the causes of action be severed and tried separately. Doe v. Carilion Med. Ctr., 65 Va. Cir. 104, 2004 Va. Cir. LEXIS 114 (Roanoke June 2, 2004).

    Res judicata. —

    All claims against a power company were barred because they could have been brought in another action; nothing prevented property owners from joining the claims. Richardson v. Va. Elec. & Power Co., 96 Va. Cir. 114, 2017 Va. Cir. LEXIS 143 (Norfolk July 17, 2017).

    § 8.01-273. Demurrer; form; grounds to be stated; amendment.

    1. In any suit in equity or action at law, the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted may be made by demurrer. All demurrers shall be in writing and shall state specifically the grounds on which the demurrant concludes that the pleading is insufficient at law. No grounds other than those stated specifically in the demurrer shall be considered by the court. A demurrer may be amended as other pleadings are amended.
    2. Wherever a demurrer to any pleading has been sustained, and as a result thereof the demurree has amended his pleading, he shall not be deemed to have waived his right to stand upon his pleading before the amendment, provided that (i) the order of the court shows that he objected to the ruling of the court sustaining the demurrer and (ii) the amended pleading incorporates or refers to the earlier pleading. On any appeal of such a case the demurree may insist upon his earlier pleading before the amendment, and if the same be held to be good, he shall not be prejudiced by having made the amendment.

    History. Code 1950, §§ 8-99, 8-120; 1954, c. 333; 1977, c. 617; 2017, c. 755.

    REVISERS’ NOTE

    Subsection A modifies former § 8-99. Subsection B incorporates the material provisions of former § 8-120.

    Under prior practice the specific grounds of a demurrer did not have to be stated unless a party to the action by motion, or the court, required it. Subsection A changes this and requires the demurrant to state the specific grounds in his demurrer. Only those grounds stated will be considered.

    The joinder in demurrer provided for in former § 8-99 has long been in disuse and has been deleted; the reference to demurrers in criminal cases has been deleted as inappropriate for inclusion in the civil procedure title.

    No change is made to existing practice of testing a defensive pleading in equity and at law by a motion to strike § 8.01-274 .

    Cross references.

    For rules of court on pleadings in general in civil actions, see Rules 3:2 through 3:18.

    The 2017 amendments.

    The 2017 amendment by c. 755, in subsection B, added clause (ii), substituted “earlier pleading before the amendment” for “original pleading” and made related changes.

    Law Review.

    For note, “The Specificity of Pleading in Modern Civil Practice: Addressing Common Misconceptions,” see 25 U. Rich. L. Rev. 135 (1991).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Amendments, §§ 2, 17, 25, 28.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Facts in bill of complaint considered true. —

    In reviewing a decree sustaining a demurrer, all facts alleged in or reasonably inferable from a bill of complaint are considered true. West Alexandria Properties, Inc. v. First Va. Mtg. & Real Estate Inv. Trust, 221 Va. 134 , 267 S.E.2d 149, 1980 Va. LEXIS 224 (1980).

    Trial court did not err in denying the lot owners’ demurrer to the objecting lot owners’ declaratory judgment action, as a declaratory judgment action was properly filed to challenge the one lot owner’s plans to build an office complex on a subdivision lot that was subject to a restrictive covenant requiring that lots only be used for residential purposes; taking the facts in the bill of complaint filed by the objecting lot owners as true, an actual case or controversy existed because the facts showed that the one lot owner was already exploring plans to actually build the office building that they did not want built. River Heights Assocs. v. Batten, 267 Va. 262 , 591 S.E.2d 683, 2004 Va. LEXIS 15 (2004).

    A demurrer, unlike a motion for summary judgment, does not allow the court to evaluate and decide the merits of a claim; it only tests the sufficiency of factual allegations to determine whether the motion for judgment states a cause of action. Fun v. Virginia Military Inst., 422 S.E.2d 770, 9 Va. Law Rep. 523, 1992 Va. LEXIS 118 (Va. 1992), set aside, op. withdrawn, 9 Va. Law Rep. 693, 1993 Va. LEXIS 11 (Va. 1993).

    Brevity of demurrer not prejudicial. —

    Three-page demurrer commendably stated its grounds without verbosity or vitriol; its brevity could hardly be viewed as prejudicial to the ex-husband as it was, after all, persuasive enough to convince him of the need to voluntarily withdraw two of the three counts in his complaint. Concerning the remaining count, alleging breach of contract, the demurrer adequately identified the conceptual problems with his allegations. Bousman v. Lhommedieu, 2013 Va. App. LEXIS 199 (Va. Ct. App. July 9, 2013).

    Grant of demurrer proper. —

    Circuit court did not err in granting a corporation’s demurrer because changing the corporation’s domicile from Virginia to Delaware did not trigger appraisal rights where Virginia did not include appraisal rights upon consummation of a domestication, Delaware did not provide appraisal rights for a sale of corporate assets, and recognition of the substance-over-form or step-transaction doctrines would not change the statutes. Fisher v. Tails, Inc., 289 Va. 69 , 767 S.E.2d 710, 2015 Va. LEXIS 9 (2015).

    Circuit court correctly interpreted the Workout Agreement to preclude breach of contract claim and correctly held that the fraud claims failed because appellant had not alleged any justifiable reliance on the alleged misrepresentation. Sweely Holdings, LLC v. R SunTrust Bank, 296 Va. 367 , 820 S.E.2d 596, 2018 Va. LEXIS 169 (2018).

    Grant of demurrer improper. —

    Trial court erred in sustaining demurrers by a teacher, his wife, and a school director as to plaintiffs’ action alleging intentional infliction of emotional distress, because the trial court improperly considered the factual merit of plaintiffs’ allegations, and in any case plaintiffs’ allegations that those defendants obtained a sample of plaintiff’s handwriting from her child’s confidential file at a school to determine if plaintiff had sent anonymous hand-written notes stated a cause of action; but the trial court properly granted demurrers by a handwriting analyst and a handwriting expert, because plaintiff could not assert a cause of action in Virginia for civil conspiracy to intentionally inflict severe emotional distress such as the claims made against them. Almy v. Grisham, 273 Va. 68 , 639 S.E.2d 182, 2007 Va. LEXIS 24 (2007).

    II.Decisions Under Prior Law.

    Editor’s note.

    The object of this section is twofold; that is to prevent reliance being placed upon an undisclosed objection to a mere matter of form, which is capable of amendment, and to prevent the demurrant from presenting, on appeal, grounds for the demurrer not relied upon before the trial court. Morriss v. White, 146 Va. 553 , 131 S.E. 835 , 1926 Va. LEXIS 348 (1926).

    Section eliminates practice of assigning different grounds for demurrer at trial and on appeal. —

    This section, if taken advantage of by the trial courts, will do away with the practice of assigning one ground of demurrer in the trial court and relying upon a wholly different ground in the appellate court — a practice which frequently results in the reversal of trial courts upon questions never presented to as considered by them. Lane Bros. & Co. v. Bauserman, 103 Va. 146 , 48 S.E. 857 , 1904 Va. LEXIS 21 (1904).

    Court may require specific writing. —

    While the grounds for demurrer are not required to be in writing, the trial court, on motion of any party thereto, shall, or of its own motion may, require the grounds of demurrer relied on to be stated specifically in the demurrer; and no grounds shall be considered other than those so stated. Klein v. National Toddle House Corp., 210 Va. 641 , 172 S.E.2d 782, 1970 Va. LEXIS 175 (1970).

    Only grounds stated are considered. —

    Where grounds for a demurrer were voluntarily stated therein, only the grounds so stated would be considered. Klein v. National Toddle House Corp., 210 Va. 641 , 172 S.E.2d 782, 1970 Va. LEXIS 175 (1970).

    Where a plaintiff voluntarily stated the grounds of his demurrer under the former statute only the grounds so stated could be considered. The fact that the grounds were stated voluntarily, and were not required by the court, is immaterial. The statute applies as well in one case as the other. Virginia & S.W. Ry. v. Hollingsworth, 107 Va. 359 , 58 S.E. 572 , 1907 Va. LEXIS 48 (1907).

    Effect when error in sustaining demurrer harmless. —

    Where, under this section, the plaintiff amended his declaration under protest, a demurrer thereto having been sustained, but relied on the amended declaration instead of the original, the question of the propriety of the action of the trial court in sustaining the demurrer becomes moot and will not be considered on appeal, as the error of the trial court, if error there was, was harmless. W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245 , 108 S.E. 15 , 1921 Va. LEXIS 152 (1921) (see Mears v. Accomac Banking Co., 160 Va. 311 , 168 S.E. 740 (1933)).

    When statement of grounds not in record on appeal. —

    When the grounds of demurrer in an action at law have been stated in writing, in accordance with the statute, but they are not copied into the record, the Supreme Court will treat the case as if there had been no demurrer. Lane Bros. & Co. v. Bauserman, 103 Va. 146 , 48 S.E. 857 , 1904 Va. LEXIS 21 (1904).

    Insufficient statement of grounds. —

    See Newton v. White, 115 Va. 844 , 80 S.E. 561 , 1914 Va. LEXIS 140 (1914); Richmond College v. Scott-Nuckols Co., 124 Va. 333 , 98 S.E. 1 , 1919 Va. LEXIS 128 (1919).

    Where counsel for defendants merely stated in the grounds of defense that a notice of motion did “not in law sufficiently state a case; hence subject to demurrer,” it was held that this did not constitute a demurrer to the notice. Ratcliffe v. McDonald's Adm'r, 123 Va. 781 , 97 S.E. 307 , 1918 Va. LEXIS 66 (1918).

    CIRCUIT COURT OPINIONS

    Facts contradicted by documents that are properly part of the pleadings may be ignored. —

    In a dispute over the sale of real property, the seller’s demurrer was sustained without prejudice, as the descriptive allegations in the pleadings were contradicted by the party’s own exhibits. Jeffery Fin. Group, Inc. v. Four Seasons Dev., LLC, 64 Va. Cir. 7, 2003 Va. Cir. LEXIS 184 (Fairfax County Sept. 23, 2003).

    Res Judicata. —

    Denial of country club’s plea of res judicata was appropriate because, even though the court’s ruling on demurrers in a prior lawsuit were on the merits, they were not a final judgment as to all pleaded issues and the rulings did not dismiss a claim or cause of action. This lack of finality meant that neither res judicata, nor collateral estoppel applied and the decedent’s survivors were not barred from refiling their claim(s) after the nonsuit. Stivers v. Lake Holiday Country Club, Inc., 2016 Va. Cir. LEXIS 597 (Frederick County Apr. 5, 2016).

    Answering counterclaim instead of filing demurrer. —

    Where plaintiffs sought a nonsuit under § 8.01-380 against defendants who had filed counterclaims, by answering the counterclaims instead of filing a demurrer, plaintiffs waived their challenge to the counterclaims’ legal sufficiency. Parsch v. Massey, 71 Va. Cir. 209, 2006 Va. Cir. LEXIS 249 (Charlottesville June 28, 2006).

    Defendant was given leave to amend his counterclaim for fraud against plaintiff because the counterclaim did not state each requisite element of fraud; even if plaintiff concealed a power of attorney from a decedent’s former attorney-in-fact, there was no fact alleged to indicate that defendant relied on the concealment to his detriment. Monger v. Herring, 79 Va. Cir. 470, 2009 Va. Cir. LEXIS 225 (Rockingham County Nov. 6, 2009).

    Leave granted to amend counterclaims. —

    Plaintiff’s motion to strike the amended counterclaims of a decedent’s former attorney-in-fact was denied because although plaintiff’s motion asserted that the amended counterclaims did not state a cause of action against her, plaintiff did not assert specific grounds to support such a finding; the initial counterclaims of the attorney-in-fact were filed by misnomer in her capacity as executor of the decedent’s estate, and the attorney-in-fact was granted leave for the amended counterclaims. Monger v. Herring, 79 Va. Cir. 470, 2009 Va. Cir. LEXIS 225 (Rockingham County Nov. 6, 2009).

    Demurrers upheld for tort claims based upon breach of contract. —

    Home purchasers sued defendants designer, construction company, and others, making allegations that included breach of contract, breach of warranty, fraud, and statutory violations, and demurrers were filed; the demurrers tested whether the purchasers’ pleading stated a cause of action upon which relief could be granted, under § 8.01-273 A, and generally the demurrers were overruled as to the breach of contract and warranty claims and were sustained as to the fraud and statutory claims. Weiss v. Cassidy Dev. Corp., 61 Va. Cir. 237, 2003 Va. Cir. LEXIS 22 (Fairfax County Feb. 21, 2003).

    Contractor’s demurrer to a fraud suit arising from a contract for the construction of a home was sustained as the state’s highest court had limited the source of duty rule for fraudulent actions evolving from contractual relationship to fraud in inducement and Virginia Consumer Protection Act, § 59.1-196 et seq., actions when consumer transactions were involved; while the trial court expressed concern with the result under the source of duty rule in factual situations such as alleged here, it was without authority to craft or expand exceptions to Virginia’s application of the source of duty rule. Penney v. Brock, 84 Va. Cir. 459, 2012 Va. Cir. LEXIS 41 (Accomack County Apr. 24, 2012).

    Demurrer granted in premises liability action. —

    City’s demurrer was granted on injured party’s claim for damages as a result of a fall on snow and ice in the parking lot the city owned and operated since the injured party did not show that the city had failed to exercise ordinary care in keeping the premises safe for its invitees; moreover, since the injured party was aware that the parking lot was covered with snow and ice, she was aware that the parking lot was slippery, and, thus, the city had no duty to protect her from the obvious dangers of falling. Gambrell v. City of Norfolk, 60 Va. Cir. 328, 2002 Va. Cir. LEXIS 399 (Norfolk Nov. 8, 2002).

    Landlord’s demurrer was granted on a tenant’s negligence claim because the tenant did not meet his requirement to allege facts sufficient to support each element of the claim. Lawrence v. Neumaier-Farnsworth Enters., 105 Va. Cir. 5, 2020 Va. Cir. LEXIS 24 (Newport News Feb. 25, 2020).

    Landlord’s demurrer was granted because a tenant did not state a cause of action upon which relief could be granted on his claim that a landlord violated a new statutory duty created by the General Assembly; the statute establishes the standard of care, not a statutory duty. Lawrence v. Neumaier-Farnsworth Enters., 105 Va. Cir. 5, 2020 Va. Cir. LEXIS 24 (Newport News Feb. 25, 2020).

    Demurrer based on sovereign immunity granted. —

    Substance abuse treatment facility’s demurrer pursuant to § 8.01-273 was granted as to an injured party’s negligence and gross negligence claims, as the center was entitled to sovereign immunity, because the center performed governmental functions, and its operations benefited the common good of all citizens; the demurrer of the center’s employee was granted as to the negligence claims, but the court was unable to determine if the employee’s alleged actions constituted gross negligence. Orellana v. Region Ten Cmty. Servs. Bd., 60 Va. Cir. 350, 2002 Va. Cir. LEXIS 404 (Charlottesville Nov. 13, 2002).

    Demurrer based on sovereign immunity overruled. —

    Because an arrestee alleged that a sheriff was grossly negligent in allowing deputies to intentionally assault and batter the arrestee, the sheriff’s demurrer to that count based on sovereign immunity was sustained; however, because the arrestee merely described the sheriff’s discretionary responsibilities in alleging negligence, the demurrer as to that count was sustained. Verry v. Barry, 71 Va. Cir. 318, 2006 Va. Cir. LEXIS 143 (Fairfax County July 27, 2006).

    Demurrer sustained where charitable immunity doctrine applied. —

    Since a church retreat and a church were charitable organizations, and since a youth group that visited the retreat, along with all of its members, were beneficiaries of those charitable organizations, the charitable immunity doctrine applied to bar any negligence recovery by the estate of a child who died when he drowned in the retreat’s man-made lake. The court sustained the church’s and the retreat’s demurrers and dismissed the negligence counts with prejudice. Shull v. Caroline Furnace Lutheran Camp & Retreat Ctr., Inc., 64 Va. Cir. 472, 2004 Va. Cir. LEXIS 168 (Charlottesville June 14, 2004).

    Demurrers in defamation actions. —

    Although the issue of whether a particular alleged defamatory statement is one of fact or opinion is a question of law and is, therefore, properly decided by a court instead of a jury, when a court is ruling on a demurer in a defamation action, it is enough for the court to hold that some of the assertions in the allegedly defamatory statement are factual and actionable; the court need not, in ruling on a demurrer, determine which of the statements the defendant published might be pure expressions of opinion, and therefore not actionable. Ziglar v. Media Six, Inc., 61 Va. Cir. 173, 2003 Va. Cir. LEXIS 36 (Roanoke Feb. 18, 2003).

    Governmental contractor’s second demurrer was sustained with regard to alleged defamatory statements made to the federal government brought to litigation via respondents’ cross-bill where the governmental contractor was absolutely immune from liability as a result of any alleged false statements to the government as a result of its duty to report. The second demurrer was overruled with regard to the same statements allegedly made to other defense contractors in the community, which were not privileged. Bridge Tech. Corp. v. Kenjya Group, Inc., 65 Va. Cir. 23, 2004 Va. Cir. LEXIS 100 (Fairfax County Apr. 20, 2004).

    Demurrers filed by a former employer and former supervisors were sustained and a former employee’s causes of action against them for insulting words under § 8.01-45 , defamation, and breach of implied contract were dismissed as the supervisors’ statements were not defamatory or else were qualifiedly privileged, and the employee failed to show improper termination. Jarrett v. Goldman, 67 Va. Cir. 361, 2005 Va. Cir. LEXIS 49 (Portsmouth May 31, 2005).

    College’s demurrer was sustained because an athletic director failed to set forth sufficient facts to support a cause of action for defamation, defamation by implication, or defamation per se; statements were not actionable as they were not false, were not defamatory, and did not reasonably imply a defamatory meaning, and the statements were not defamatory per se as they did not directly or indirectly suggest the director was unfit, incompetent, or unqualified to perform his job. Naff v. Ferrum College, 108 Va. Cir. 5, 2021 Va. Cir. LEXIS 147 (Franklin County Apr. 19, 2021).

    Demurrers in intentional infliction of emotional distress claims. —

    Where a dental assistant asserted a claim for intentional infliction of emotional distress against a dentist, the dentist’s demurrer was sustained as to that claim because the dental assistant’s allegations that the dentist used abusive language and fondled a patient were not sufficiently outrageous. Wilson v. Modjadidi, 74 Va. Cir. 279, 2007 Va. Cir. LEXIS 290 (Norfolk Oct. 23, 2007).

    College’s demurrer was sustained because an athletic director set forth in his amended complaint typical symptoms of an emotional disturbance, not physical injury, and, therefore, he failed to set forth sufficient facts for a cause of action of negligent infliction of emotional distress; the athletic director’s allegations were insufficient to demonstrate a physical injury, which was required for a negligent intentional emotional distress claim. Naff v. Ferrum College, 108 Va. Cir. 5, 2021 Va. Cir. LEXIS 147 (Franklin County Apr. 19, 2021).

    College’s demurrer was sustained as to an athletic director’s claim for intentional infliction of emotional distress because he failed to state facts sufficient to establish that the college’s conduct was outrageous or intolerable and failed to establish a causal connection between the college’s conduct and the emotional distress. Naff v. Ferrum College, 108 Va. Cir. 5, 2021 Va. Cir. LEXIS 147 (Franklin County Apr. 19, 2021).

    Demurrer granted to claim of negligent or intentional infliction of emotional distress. —

    An individual defendant’s demurrer pursuant to § 8.01-273 was granted as to an injured party’s claim for negligent or intentional infliction of emotional distress; although Virginia law recognized a claim for intentional infliction of emotional distress, the injured party did not allege any resulting physical injury as required under Virginia law. Robinson v. Phi Beta Sigma Fraternity, Inc., 60 Va. Cir. 452, 2003 Va. Cir. LEXIS 65 (Norfolk Jan. 13, 2003).

    Wrongful termination. —

    Terminated worker did not state claims for wrongful termination due to a disability or breach of an implied covenant of good faith and fair dealing regarding the worker’s termination from the town and the water authority, and, thus, their demurrer to dismiss those actions had to be granted, but the demurrer had to be denied as to the worker’s defamation claim, since the worker stated a cause of action with respect to that claim. Wright v. St. Charles Water Auth., 59 Va. Cir. 244, 2002 Va. Cir. LEXIS 350 (Lee County July 11, 2002).

    Motion for demurrer granted in wrongful termination action. —

    A hotel’s motion for a demurrer pursuant to § 8.01-273 was sustained, and a former employee’s motion for summary judgment pursuant to Va. Sup. Ct. R. 3:18 [see now Rule 3:20] was denied as to the employee’s claim that the hotel terminated the employee in violation of public policy; the employee received severance pay when he first left his employment and on returning as a term and condition for reinstatement signed a withholding authorization allowing a deduction from pay covering monies previously obtained as severance, and this suggested that the employee agreed to repay money and that the hotel was seeking to have him abide by that agreement, and these facts did not establish that the hotel required the employee to give up wages as a condition of continued employment in violation of § 40.1-29 . Coley v. Historic Hotels, Inc., 60 Va. Cir. 466, 2000 Va. Cir. LEXIS 642 (Richmond Feb. 17, 2000).

    Where an employer demurred to an employee’s wrongful termination action because the employer could terminate employment for cause or for no cause, the employee could not prove an injury; in the absence of injury, no cause of action existed and the wrongful termination action had to be dismissed. Moore v. Historic Jackson Ward Ass'n, 61 Va. Cir. 149, 2003 Va. Cir. LEXIS 240 (Richmond Feb. 10, 2003).

    Demurrer in tortious interference claim. —

    Where a dental assistant asserted a claim for tortious interference with contractual relations against a dentist, the dentist’s demurrer was overruled as to the claim because the dentist allegedly: (1) stated the dentist’s intention to compel the dental assistant to leave the dental assistant’s employment; (2) made specific threats of those intentions; and (3) openly bragged about having caused the dental assistant to lose employment after the dental assistant resigned. Wilson v. Modjadidi, 74 Va. Cir. 279, 2007 Va. Cir. LEXIS 290 (Norfolk Oct. 23, 2007).

    Demurrer to common law claims granted where exclusive remedy was under Workers’ Compensation Act. —

    Employer’s Plea in Bar to employee’s complaint alleging claims for negligence, negligent misrepresentation, intentional tort, and fraudulent misrepresentation related to the employee’s sickness that occurred after the employer informed the employee the employer’s office building would be fumigated, was granted, as the employee’s claim for injury resulting from chemical exposure was an injury by accident that arose out of and in the course of her employment with the employer; accordingly, the employee’s sole and exclusive remedy was under the Virginia Workers’ Compensation Act, § 65.2-101 et seq., since that Act provided, in § 65.2-307 , that an employee’s exclusive sole and exclusive remedy under those circumstances was under the Act. Murhutta v. Planning Sys., 61 Va. Cir. 340, 2003 Va. Cir. LEXIS 53 (Fairfax County Mar. 19, 2003).

    Demurrer to Virginia Consumer Protection Act claim. —

    Body shop’s demurrer to an owner’s complaint alleging a violation of the Virginia Consumer Protection Act, § 59.1-196 et seq., was overruled because the owner properly stated a Virginia Consumer Protection Act claim; the transaction at issue fit within the definition of “consumer transaction” pursuant to § 59.1-198, and the amended complaint stated facts sufficient to infer that the owner used defendants’ services for personal, family, or household purposes. Daughtry v. Gray's Body Shop, Inc., 79 Va. Cir. 539, 2009 Va. Cir. LEXIS 259 (Norfolk Nov. 25, 2009).

    Supplier’s demurrer was sustained in homeowners’ action alleging violations of the Virginia Consumer Protection Act, § 59.1-196 et seq., because the Virginia Consumer Protection Act did not apply; the supplier’s transactions in the case involved non-consumer goods, not subject to the Act. Seeman v. Oxfordshire, LLC, 83 Va. Cir. 442, 2011 Va. Cir. LEXIS 126 (Suffolk Oct. 12, 2011).

    Realty company’s demurrer was sustained in homeowners’ action alleging violations of the Virginia Consumer Protection Act, § 59.1-196 et seq., because the Virginia Consumer Protection Act did not apply; the company did not sell or use defective drywall, and its only involvement was as a seller’s agent, offering the completed dwelling house for sale on behalf of its principal, the owner. Seeman v. Oxfordshire, LLC, 83 Va. Cir. 442, 2011 Va. Cir. LEXIS 126 (Suffolk Oct. 12, 2011).

    Plaintiff’s Consumer Protection Act and fraud claims were predicated upon allegations that defendants made fraudulent statements to induce plaintiff to have defendants begin repair work on her new residence; the allegations were pleaded with specific particularity and the alleged false representations were significant factors in plaintiff’s decision, such that defendants’ demurrer was overruled. Van Buren v. Earl Ronald Poston & Old Meadow, LLC, 97 Va. Cir. 229, 2017 Va. Cir. LEXIS 335 (Loudoun County Nov. 30, 2017).

    Denial of seller’s demurrer as to home buyer’s claim that the seller violated the Virginia Consumer Protection Act, § 59.1-196 et seq., was appropriate because the buyers sufficiently pleaded that the action involved a consumer transaction and that the seller was a supplier in that the buyers pleaded that the seller sold the buyers a property which the buyers used for residential purposes. Furthermore, regulation of the transaction was not preempted by the Federal Consumer Credit Protection Act, 15 U.S.C.S. § 1601 et seq. Nazar v. Balderson, 104 Va. Cir. 173, 2020 Va. Cir. LEXIS 10 (Chesterfield County Jan. 29, 2020).

    Demurrer based on successor liability was overruled. —

    In demurrer of the successor to the owner’s cause of action for successor liability was overruled even though the agreement in which the successor purchased the installer’s assets included a written disclaimer of liability for any of the installer’s acts or obligations prior to the closing date of the sale. MDM Assocs. v. Johns Bros. Energy Techs., JFB, Inc., 59 Va. Cir. 295, 2002 Va. Cir. LEXIS 377 (Norfolk July 31, 2002).

    Failure to raise argument in written demurrer. —

    Under subsection A of § 8.01-273 , court could not consider an argument that defendants had not raised in their written demurrer. Robinson v. Brugiere, 72 Va. Cir. 109, 2006 Va. Cir. LEXIS 191 (Amherst County Sept. 21, 2006).

    Particular cases. —

    Plaintiff association’s demurrer, pursuant to § 8.01-273 , was overruled as to counterclaims seeking declaratory relief and alleging that defendants possessed riparian rights because the fact that defendants could not lawfully excavate a canal did not terminate their easement, and conveyance of riparian rights necessary to effectuate boat access could plausibly be inferred. Wessynton Homes Ass'n v. Burke, 79 Va. Cir. 365, 2009 Va. Cir. LEXIS 128 (Fairfax County Oct. 5, 2009).

    When the Commonwealth of Virginia sued a contractor’s alleged successors for breach of contract, asserting equitable subrogation under a county’s contract with the contractor, the successors’ demurrer was overruled because the Commonwealth sufficiently pled equitable subrogation as the Commonwealth said the Commonwealth paid for work done in the county’s easement. Commonwealth v. CCA Indus., 82 Va. Cir. 621, 2009 Va. Cir. LEXIS 273 (Hanover County Dec. 22, 2009).

    When the Commonwealth of Virginia sued a contractor’s alleged successors for breach of contract, asserting the Commonwealth was a third-party beneficiary of a county’s contract with the contractor, the successors’ demurrer was overruled because the Commonwealth sufficiently alleged the Commonwealth was a third-party beneficiary of the county’s contract with the contractor as the Commonwealth alleged (1) work was done on the Commonwealth’s property, (2) the work had to meet the Commonwealth’s specifications, and (3) the contract’s intent was to benefit the Commonwealth. Commonwealth v. CCA Indus., 82 Va. Cir. 621, 2009 Va. Cir. LEXIS 273 (Hanover County Dec. 22, 2009).

    Demurrer of a contractor’s wife to a fraud suit alleging that the wife, as the contractor’s bookkeeper, participated in the fraudulent draw down of construction funds was sustained; the source of duty rule did not apply to the claim against the wife since she was not a party to the contract. Penney v. Brock, 84 Va. Cir. 459, 2012 Va. Cir. LEXIS 41 (Accomack County Apr. 24, 2012).

    Owners’ demurrers to a negligence suit filed by the wife of an independent contractor’s employee after she contracted mesothelioma from exposure to asbestos dust were sustained as any duty the owners had to warn invitees of the hazards of exposure to asbestos dust did not apply as the wife was not an invitee. Link v. Bayer Cropscience Inc., 85 Va. Cir. 149, 2012 Va. Cir. LEXIS 76 (Albemarle County July 26, 2012).

    Owners’ demurrers to a negligence suit filed by the wife of an independent contractor’s employee after she contracted mesothelioma from exposure to asbestos dust were sustained as there was no duty of care extending from the premises owners to the off-premises spouse of an independent contractor’s employee; in hiring the independent contractor, it was reasonable to infer that owners were unwilling or unable to perform the asbestos-related work themselves, and relied on others’ expertise. Link v. Bayer Cropscience Inc., 85 Va. Cir. 149, 2012 Va. Cir. LEXIS 76 (Albemarle County July 26, 2012).

    Plaintiffs filed their complaint less than two years after foreclosure, and thus the claims for breach and fraud were brought within their respective statute of limitations; while plaintiffs were not barred by laches, they failed to plead sufficient facts that there was no adequate remedy at law, given that damages could be awarded after foreclosure while equity was appropriate prior to foreclosure, and the demurrer was sustained in this regard. Waters v. CitiMortgage, Inc., 92 Va. Cir. 460, 2013 Va. Cir. LEXIS 209 (Chesterfield County Jan. 14, 2013).

    Question of whether a complaint sufficiently alleges a claim to pierce a limited liability entity’s corporate veil to reach an individual shareholder or member is properly considered on demurrer. Van Buren v. Earl Ronald Poston & Old Meadow, LLC, 97 Va. Cir. 229, 2017 Va. Cir. LEXIS 335 (Loudoun County Nov. 30, 2017).

    Agent’s contractual liability claim. —

    When the Commonwealth of Virginia and a county sued a contractor’s agent for breach of contract, based on the agent’s application for a permit, the agent’s demurrer was sustained because (1) the agent sought the permit for a disclosed principal, and (2) it was not alleged that the agent received consideration for or agreed to accept permittee liability. Commonwealth v. CCA Indus., 82 Va. Cir. 621, 2009 Va. Cir. LEXIS 273 (Hanover County Dec. 22, 2009).

    Claim of successor liability for breach of contract. —

    When the Commonwealth of Virginia and a county sued a contractor’s alleged successors for breach of contract, the successors’ demurrer claiming a failure to allege successor liability was overruled because successor liability was sufficiently pled as it was alleged (1) the successors expressly and impliedly agreed to assume the contractor’s liabilities, (2) the successors were a continuation of the contractor, and (3) the contractor merged into the successors. Commonwealth v. CCA Indus., 82 Va. Cir. 621, 2009 Va. Cir. LEXIS 273 (Hanover County Dec. 22, 2009).

    Demurrer filed by a law firm and an attorney was sustained because no claim for aiding and abetting fraud had been made in the case, and no facts supporting such a claim had been pleaded. Sellman v. Florance Gordon Brown, P.C., 2010 Va. Cir. LEXIS 319 (Richmond Nov. 18, 2010).

    Demurrer filed by a law firm and an attorney was sustained in investors’ action alleging fraud because the investors failed to allege particular facts for each element of actual fraud; the investors did not allege a false representation of material fact, such as a representation that they were adequately secured in their investment or that they could not lose their money, nor did they allege any facts showing the deliberate intent of the law firm and the attorney to make such representations. Sellman v. Florance Gordon Brown, P.C., 2010 Va. Cir. LEXIS 319 (Richmond Nov. 18, 2010).

    Civil rights claims adequately alleged. —

    African-American subdivision resident stated claims under 42 U.S.C.S. §§ 1981 and 1982 against a neighbor and a homeowners’ association for discrimination after she and a friend were harassed, photographed, and the subject of a police call at the neighborhood pool. She failed to state a claim for intentional infliction of emotional distress. Hudgins v. Higginbotham, 82 Va. Cir. 152, 2011 Va. Cir. LEXIS 161 (Chesapeake Feb. 1, 2011).

    Fraud claim. —

    Demurrer filed by a law firm and an attorney was sustained in investors’ action alleging fraud because to the extent that the investors asserted constructive fraud, privity was required, and the economic loss rule applied to bar such an action. Sellman v. Florance Gordon Brown, P.C., 2010 Va. Cir. LEXIS 319 (Richmond Nov. 18, 2010).

    Neighbors’ demurrer based on res judicata was overruled because landowners alleged a prima facie case of fraud. Kane v. Small, 97 Va. Cir. 330, 2008 Va. Cir. LEXIS 3392 (Northumberland County Oct. 30, 2008).

    Court sustained defendant’s demurrer with respect to the constructive fraud claim because misrepresentations encompassing future action were insufficient to support a claim of constructive fraud. Gutterman v. Sgueglia, 102 Va. Cir. 220, 2019 Va. Cir. LEXIS 209 (Norfolk June 10, 2019).

    Court overruled defendant’s demurrer with respect to a claim of actual fraud because plaintiff’s complaint alleged that defendant made representations regarding conveyance of plaintiff’s property to defendant, a lease agreement between plaintiff and defendant, and the return of the property to plaintiff upon expiration of the lease; plaintiff alleged in the complaint that, when defendant made those representations, defendant knew that they were false and that they were intended to cause plaintiff to permanently transfer the property; and plaintiff’s reliance of defendant’s representations caused her to suffer harm as she no longer held title to the property. Gutterman v. Sgueglia, 102 Va. Cir. 220, 2019 Va. Cir. LEXIS 209 (Norfolk June 10, 2019).

    Legal malpractice claim. —

    Demurrer filed by a law firm and an attorney was sustained in investors’ action alleging legal malpractice because the investors failed to allege any privity between the parties; the investors failed to identify any provision that clearly conferred upon them a direct benefit in any contract executed between them and the firm and attorney. Sellman v. Florance Gordon Brown, P.C., 2010 Va. Cir. LEXIS 319 (Richmond Nov. 18, 2010).

    Demurrer sustained in claim for breach of fiduciary duty. —

    Plaintiff’s demurrer to defendant’s counterclaim that a decedent instructed plaintiff to deliver a power of attorney document to an attorney-in-fact and that plaintiff concealed the document and refused to deliver it was sustained because only the executor of the decedent’s estate had standing to bring a claim for a breach of fiduciary duty that the decedent suffered prior to his death; plaintiff’s alleged breach of the decedent’s trust regarding delivery of the power of attorney to the attorney-in-fact did not result in actionable harm to defendant. Monger v. Herring, 79 Va. Cir. 470, 2009 Va. Cir. LEXIS 225 (Rockingham County Nov. 6, 2009).

    Trustee’s demurrer to property owners’ negligence claim was sustained because the duties of impartiality and ordinary care of a fiduciary the trustee allegedly breached arose by virtue of the parties’ contractual relationship under a deed of trust, which constituted a contract under § 55-59, and not the common law; but for the existence of the deed of trust, the trustee would not have owed any fiduciary duties to the owners, and since the trustee had no relationship with the owners absent the deed of trust, any fiduciary duty allegedly breached existed solely because of that contractual relationship. Salazar v. US Bank NA, 82 Va. Cir. 344, 2011 Va. Cir. LEXIS 30 (Fairfax County Mar. 9, 2011).

    Demurrer denied. —

    A tenant’s motion for a demurrer pursuant to § 8.01-273 as to a landlord’s declaratory judgment action pursuant to § 8.01-184 was denied, because § 8.01-191 stated that the declaratory judgment statute was remedial in nature and had to be liberally interpreted, and the declaratory judgment statute permitted a party like the landlord to seek the court’s guidance on a landlord/tenant relationship, the pleadings stated a cause of action upon which relief could be granted, and the claims of each party were adverse to the other and were ripe for adjudication. Truslow, Inc. v. Gibbs, 59 Va. Cir. 472, 2002 Va. Cir. LEXIS 357 (Richmond Oct. 3, 2002).

    School, though only a tenant, could still be held liable for injuries to a student in the school’s building because tenants who were in control of a building had the maintenance and repair responsibilities that the building code imposed on an owner. Jenkins v. Daniels Inst. of Holistic Health, Inc., 62 Va. Cir. 246, 2003 Va. Cir. LEXIS 122 (Roanoke July 7, 2003).

    Where an employee alleged intentional torts against a supervisor (both of whom were state employees), sovereign immunity did not shield the supervisor from liability; therefore, the supervisor’s plea of sovereign immunity as a ground for a demurrer under § 8.01-273 or Va. Sup. Ct. R. 1:4(i) was dismissed. Myers v. Tyler, 61 Va. Cir. 512, 2003 Va. Cir. LEXIS 233 (Norfolk May 8, 2003).

    Where none of the 27 accounting entries that formed the basis of the beneficiaries’ suit to surcharge or falsify the co-executors’ ex parte settlements of periodic accounts of an estate were the subject of any of the previous suits, there was no basis for the application of res judicata or collateral estoppel; therefore, the co-executors’ demurrer, plea, and motion to dismiss were denied and overruled. Shepherd v. Perry, 64 Va. Cir. 80, 2004 Va. Cir. LEXIS 12 (Spotsylvania County Feb. 12, 2004).

    Car dealer’s demurrer to a buyer’s amended motion for judgment was overruled as: (1) the tort and contract claims demonstrated an ongoing series of negotiations with respect to one specific good, the purchase of a car, (2) the claims involved the same witnesses, documents, and nexus of facts, and (3) judicial economy would be served by trying the claims together; that insurance information would be introduced at trial with respect to the contract claim, but it would be improper to introduce such information with respect to the tort claims, could be remedied by limiting jury instructions. The trial court refused to sever the contract claim. Sykes v. Brady-Bushey Ford, Inc., 69 Va. Cir. 219, 2005 Va. Cir. LEXIS 323 (Charlottesville Oct. 27, 2005).

    Car dealer’s demurrer to a buyer’s claim under the Virginia Consumer Protection Law (Lemon Law), § 59.1-196 et seq., claim was overruled as the buyer pled fraudulent concealment and recounted allegedly false statements made by a salesman; the phrase “should have known,” occurred only along with alternative language suggesting that the dealer was conscious of the alleged fraudulent misrepresentations. The conclusion that the buyer stated a claim under § 59.1-196 was bolstered by the fact that § 59.1-207 explicitly reserved remedies for individuals aggrieved as a result of an unintentional violation. Sykes v. Brady-Bushey Ford, Inc., 69 Va. Cir. 219, 2005 Va. Cir. LEXIS 323 (Charlottesville Oct. 27, 2005).

    Demurrers to adjacent landowners’ complaint were overruled because an ordinance was not invalid as allowing for the seizure of private property of one person solely for the benefit of another private individual; the “unbuildable” standard in the ordinance was designed to provide a counter-balance to a well radius going too far in compromising the use and value of adjoining property. Hamrick v. Bd. of Supervisors of Westmoreland Cty., 98 Va. Cir. 403, 2007 Va. Cir. LEXIS 3067 (Westmoreland County Nov. 1, 2007).

    Demurrers to adjacent landowners’ complaint were overruled because the landowners stated a cause of action with respect to their claim that the board of supervisors adopted the wrong standard in issuing the neighbor a zoning permit for a well; by not following a consistent standard in the hearing conducted by the board, as opposed to the administrative process, the board acted in a manner to declare the meaning of its own statutes, which was the province of courts. Hamrick v. Bd. of Supervisors of Westmoreland Cty., 98 Va. Cir. 403, 2007 Va. Cir. LEXIS 3067 (Westmoreland County Nov. 1, 2007).

    Neighbors’ demurrer was overruled because the circuit court had jurisdiction to consider a proposed pier’s alleged injury to private rights based only on the location submitted by the riparian owner and approved by Virginia Marine Resources Commission. Kane v. Small, 97 Va. Cir. 330, 2008 Va. Cir. LEXIS 3392 (Northumberland County Oct. 30, 2008).

    Employer’s demurrer to an employee’s complaint alleging that the employer breached its duty to protect and warn the employee of the danger posed by her husband was overruled because a special relationship did exist between the employer and employee since the employer had the power to hire the employee, it paid her wages, it could dismiss her, and it had the power of control over her actions at work, and the employee also enjoyed a contractual employment relationship with the employer; the existence of the special employer-employee relationship imposed a duty on the employer to protect the employee, and the facts pleaded in the complaint could support a finding that the employer should have foreseen the assault. Phillips v. BJ's Wholesale Club, Inc., 77 Va. Cir. 129, 2008 Va. Cir. LEXIS 230 (Norfolk Sept. 26, 2008).

    Defendants’ demurrers to plaintiff’s complaint were denied because plaintiff had standing to sue a decedent’s former attorney-in-fact; plaintiff alleged that the former attorney-in-fact breached her fiduciary duties to the decedent and in so doing caused him to breach his buy-sell contract with plaintiff. Monger v. Herring, 79 Va. Cir. 470, 2009 Va. Cir. LEXIS 225 (Rockingham County Nov. 6, 2009).

    Defendants’ demurrers to plaintiff’s complaint were denied because plaintiff pleaded sufficient facts of actual revocation of a power of attorney by a decedent; on demurrer, the circuit court accepted plaintiff’s factual allegation that the decedent communicated to his former attorney-in-fact the revocation of all her agency powers, which included the power of attorney. Monger v. Herring, 79 Va. Cir. 470, 2009 Va. Cir. LEXIS 225 (Rockingham County Nov. 6, 2009).

    Property owner’s demurrer was overruled on the basis of failure to state sufficient facts to support a landowner’s claim that an agency relationship existed because the complaint set forth the essential facts of an agency relationship and informed the property owner of the true nature of the claim; in support of its claim that an agency relationship existed, the landowner alleged that the property directed a contractor to do the acts that were the subject of the complaint and that the contractor and a subcontractor were acting on behalf of and in furtherance of the property owner’s business interest when the alleged trespass and conversion occurred. Narayanswarup, Inc. v. Doswell Hospitality, L.L.C., 80 Va. Cir. 650, 2010 Va. Cir. LEXIS 183 (Hanover County Aug. 26, 2010).

    Property owner’s demurrer, which contended that a landowner’s complaint failed to allege any ground for punitive damages was overruled because the landowner stated facts sufficient to support its claim for punitive damages, and the landowner properly made an express claim for punitive damages in the ad damnum clause of the complaint; in the complaint, the landowner alleged the trespass of the property owner, a contractor, and a subcontractor was wanton, willful, and intentional and in calculated disregard of it rights, and the complaint further alleged the existence of an agency relationship between the property owner and the contractor and subcontractor and stated that it directed the acts that were the subject of the complaint. Narayanswarup, Inc. v. Doswell Hospitality, L.L.C., 80 Va. Cir. 650, 2010 Va. Cir. LEXIS 183 (Hanover County Aug. 26, 2010).

    Property owner’s demurrer was overruled on the basis of failure to state sufficient facts to support a landowner’s claim of unjust enrichment because whether the property owner was unjustly enriched and whether it was possible for the property to be unjustly enriched were questions of fact to be determined at trial, not on demurrer. Narayanswarup, Inc. v. Doswell Hospitality, L.L.C., 80 Va. Cir. 650, 2010 Va. Cir. LEXIS 183 (Hanover County Aug. 26, 2010).

    Trustee’s demurrer to property owners’ quiet title claim was overruled because the complaint sufficiently alleged a claim for quiet title on the grounds that the trustee and a bank took title in the owners’ property through an invalid foreclosure sale; the complaint alleged that the bank and trustee were not the beneficiaries of the owners debt, and thus, lacked any authority to foreclose on the deed of trust, and because the title in the property was based on the allegedly invalid foreclosure, the owners unquestionably asserted a claim of superior title. Salazar v. US Bank NA, 82 Va. Cir. 344, 2011 Va. Cir. LEXIS 30 (Fairfax County Mar. 9, 2011).

    Plaintiffs pleaded a cause of action for fraud, and a cause of action for constructive fraud, against one defendant, and the demurrer was overruled in this regard. Waters v. CitiMortgage, Inc., 92 Va. Cir. 460, 2013 Va. Cir. LEXIS 209 (Chesterfield County Jan. 14, 2013).

    Window company’s demurrer was overruled because the Virginia Uniform Commercial Code applied to a property owner’s express warranty claim; the owner was pursuing the claim based on a contract between the company and subcontractor for windows to be used in a renovation, the windows were manufactured and supplied by the company and installed during the renovation, and then the owner noticed defects with the windows and/or their installation. 139 Riverview, LLC v. Quaker Window Prods., 90 Va. Cir. 74, 2015 Va. Cir. LEXIS 45 (Norfolk Mar. 2, 2015).

    Window company’s demurrer was overruled because a property owner sufficiently carried its burden, for purposes of demurrer, of showing that it was an intended beneficiary of the contracts between the company and a subcontractor; the owner provided a limited warranty between the subcontractor and company that stated the warranty applied to the original homeowner owner and identified the owner. 139 Riverview, LLC v. Quaker Window Prods., 90 Va. Cir. 74, 2015 Va. Cir. LEXIS 45 (Norfolk Mar. 2, 2015).

    Overruling of a demurrer was appropriate because, while a motorist who was injured in an automobile accident may not have had adequate proof of punitive damages at trial, the motorist alleged sufficient facts in an amended complaint against a logging and hauling company and its driver that the question of punitive damages was appropriate for consideration by a jury. Brown v. Seay Logging & Hauling, LLC, 90 Va. Cir. 488, 2015 Va. Cir. LEXIS 66 (Greensville County Apr. 2, 2015).

    Demurrers filed by a developer, limited liability company, and individuals were overruled as to condominium unit owners’ claim to pierce the corporate veil because the owners’ pleadings stated that the developer was and had been an alter ego for the limited liability company and individuals, and the complaint stated that the developer existed for them and their various other entities to profit from and avoid responsibility for its actions. Fallin v. Anchor Point Ventures, LLC, 92 Va. Cir. 79, 2015 Va. Cir. LEXIS 249 (Hopewell Apr. 6, 2015).

    Demurrers and pleas in bar filed by a developer, limited liability company, and individuals based on the defense of laches were overruled as to condominium unit owners’ fraudulent conveyance claim because they failed to show that the owners’ delay was unreasonable or that they would be prejudiced by the delay; although the owners were on notice of the property’s transfer, they were not on notice of any fraud or when the deed of correction was recorded. Fallin v. Anchor Point Ventures, LLC, 92 Va. Cir. 79, 2015 Va. Cir. LEXIS 249 (Hopewell Apr. 6, 2015).

    In a malicious prosecution case, defendant’s demur to plaintiff’s amended complaint was overruled because plaintiff had adequately pleaded a claim for punitive damages in his complaint, and he pleaded the same facts in his amended complaint; as to the constitutional defenses, there was no constitutional value in plaintiff’s false statements of fact; and her statements were not otherwise privileged as a matter of law as the circuit court did not know what privilege she claimed, and no grounds other than those stated specifically in the demurrer would be considered by the court. Hartline v. Hartline, 104 Va. Cir. 243, 2020 Va. Cir. LEXIS 14 (Norfolk Feb. 11, 2020).

    In a case in which plaintiffs filed a bill of complaint for a permanent injunction, defendant’s demurrer was overruled because the demurrer appeared to factually challenge the allegations set forth in the complaint, but did not provide a legal basis for why the complaint failed to state a valid cause of action; and, taking the factual allegations in the complaint as true, as required on demurrer, the court was of the opinion that the complaint sufficiently stated a cause of action for permanent injunction. City of Chesapeake v. Culpepper, 106 Va. Cir. 212, 2020 Va. Cir. LEXIS 473 (Chesapeake Oct. 28, 2020).

    In plaintiffs’ suit against defendants regarding the accused individual’s sexual abuse of minor boys, the demurrer to the vicarious liability claim against the state religious association was overruled as plaintiffs alleged facts that would demonstrate an agency relationship between the church and and the religious association; and plaintiffs were entitled to the presumption that actions taken in a specific job-related service for the association were made within the scope of the agency relationship. J.W.C. v. Immanuel Baptist Church, 2021 Va. Cir. LEXIS 148 (Chesterfield County May 4, 2021).

    In plaintiffs’ suit against defendants regarding the accused individual’s sexual abuse of minor boys, the demurrers to the punitive damages claims against the local and state religious associations were overruled as a reasonable jury could determine that the associations ratified the employment of the accused individual because, although the associations might not have had a vote to officially authorize the risk of employing the accused individual, the allegations specifically listed facts that could allow a reasonable jury to determine that the associations confirmed or accepted the risk by turning a blind eye to the allegations against the accused individual, and by not demanding an investigation into the allegations. J.W.C. v. Immanuel Baptist Church, 2021 Va. Cir. LEXIS 148 (Chesterfield County May 4, 2021).

    In plaintiffs’ suit against defendants regarding the accused individual’s sexual abuse of minor boys, the demurrer to the vicarious liability claim against the local religious association was overruled as plaintiffs sufficiently alleged facts that would demonstrate that the association exercised control over the church as a member church, and that the church was responsive to the demands of the association; and plaintiffs established a rebuttable presumption that the accused individual’s actions as the youth group leader for the church and at the camp on the association’s property were within the scope of his agency. J.W.C. v. Immanuel Baptist Church, 2021 Va. Cir. LEXIS 148 (Chesterfield County May 4, 2021).

    In plaintiffs’ suit against defendants regarding the accused individual’s sexual abuse of minor boys, the demurrer to the claim of negligence, gross negligence, and recklessly breaching a duty arising from a special relationship with plaintiffs against the local religious association was overruled as plaintiffs sufficiently pleaded that the association had direct knowledge of the possible propensities of the accused individual after the 2009 meetings, but he was allowed to continue to act as the youth group leader and to bring children to a camp property owned by the association, unsupervised until 2015. J.W.C. v. Immanuel Baptist Church, 2021 Va. Cir. LEXIS 148 (Chesterfield County May 4, 2021).

    In plaintiffs’ suit against defendants regarding the accused individual’s sexual abuse of minor boys, the demurrer to the claim of civil conspiracy against the individual defendants was overruled as one of those defendant’s made a speech to the church’s congregation that spoke about one allegation of abuse, but the police had investigated multiple allegations against the accused individual. J.W.C. v. Immanuel Baptist Church, 2021 Va. Cir. LEXIS 148 (Chesterfield County May 4, 2021).

    In plaintiffs’ suit against defendants regarding the accused individual’s sexual abuse of minor boys, the demurrers to the punitive damages claims against the church and the individual defendants were overruled as the church’s intentional act of allowing the accused individual to continue as a youth group leader led to further harm against the minor boys; and the individual defendant’s action ensuring the accused individual was retained as the youth group leader indicated the kind of purposeful action that a reasonable fact finder could determine was willful or wanton. J.W.C. v. Immanuel Baptist Church, 2021 Va. Cir. LEXIS 148 (Chesterfield County May 4, 2021).

    In plaintiffs’ suit against defendants regarding the accused individual’s sexual abuse of minor boys, the demurrers to the negligent hiring and retention claims against the church were overruled as the church knew or should have known of the dangerous propensity for the accused individual to sexually assault minor boys prior to hiring him to work with the youth group or his hiring as the leader of the youth group. J.W.C. v. Immanuel Baptist Church, 2021 Va. Cir. LEXIS 148 (Chesterfield County May 4, 2021).

    Demurrer sustained. —

    Where a bill of complaint did not offend the principle of multifariousness and the neighbors’ also properly pleaded both public and private nuisance, a demurrer was overruled; however, the demurrer was sustained to the extent that the complaint did not support a claim for punitive damages. ICM Enters., L.C. v. 1425 E. Cary St. Assocs., 64 Va. Cir. 237, 2004 Va. Cir. LEXIS 198 (Richmond Mar. 15, 2004).

    Defendants’ demurrer under § 8.01-273 , was sustained as the oral extension agreements to sell land were unenforceable because they violated the Virginia Statute of Frauds, subdivisions 6 and 7 of § 11-2 , since they were not in writing or signed by the parties; an amendment to the purchase agreement was a novation between the parties, and was not such a writing that would prevent the statute of frauds from making the oral extension agreements unenforceable. Hendrick v. Boone & Co., 2004 Va. Cir. LEXIS 388 (Roanoke County Apr. 7, 2004).

    Former employer’s demurrer was sustained as to the former employee’s emotional distress claim because the conduct did not rise to the level that was so extreme in degree as to go beyond all possible bounds of decency. Hatten v. Campbell, 71 Va. Cir. 95, 2006 Va. Cir. LEXIS 118 (Chesterfield County June 5, 2006).

    Because U.S. Const., amend. I, and Va. Const., Art. I, § 12, did not require the owner of a privately owned shopping center to allow a candidate to distribute political materials, the candidate did not state a cause of action upon which relief could be granted; therefore, the owner’s and the shopping center’s demurrer was sustained. Collins v. Shoppers' World, L.C., 71 Va. Cir. 133, 2006 Va. Cir. LEXIS 81 (Albemarle County June 14, 2006).

    Even if a cause of action for aiding and abetting a breach of a fiduciary duty existed in Virginia, a former employer’s complaint failed to sufficiently allege that two distinct actors participated in breaching the fiduciary duty and in aiding and abetting a breach of that duty; therefore, a demurer by the former employee and the former employee’s new company was sustained. Best Med. Int'l, Inc. v. Wittmer, 73 Va. Cir. 504, 2007 Va. Cir. LEXIS 119 (Fairfax County Aug. 8, 2007).

    Where a court granted a motion craving oyer and considered the documents in a zoning board’s legislative record as part of the pleadings, the court disregarded the factual allegations of landowners’ challenge to the zoning board’s decision to rezone a 40-acre parcel of land and issue a special permit to allow the construction of a large retail store. Resk v. Roanoke County, 73 Va. Cir. 272, 2007 Va. Cir. LEXIS 226 (Roanoke County Apr. 19, 2007).

    Visitor’s slip and fall complaint against a low income housing landlord could not survive a demurrer where there was no private cause of action under § 8 of the Housing and Community Development Act of 1974. Christian v. Corniel, 73 Va. Cir. 528, 2007 Va. Cir. LEXIS 219 (Norfolk Aug. 28, 2007).

    Where a tenant had complete control over leased low income premises and a landlord owed no duty to a tenant’s visitor under the federal Housing Quality Standards, 24 C.F.R. § 982.401(g)(2)(iv), the visitor’s personal injury complaint did not state a cause of action against the landlord under Virginia Maintenance Code §§ 301.2 and 302.3 or common law. Christian v. Corniel, 73 Va. Cir. 528, 2007 Va. Cir. LEXIS 219 (Norfolk Aug. 28, 2007).

    Demurrers to adjacent landowners’ complaint were sustained because there was no cause of action alleged in the complaint based on a de facto variance; an ordinance applied a uniform health department regulation to protect the safety and health of the citizens of the county, and granting a well permit with a protection radius in accordance with an established health department regulation was not a variance due to a unique hardship but availed similarly to all landowners. Hamrick v. Bd. of Supervisors of Westmoreland Cty., 98 Va. Cir. 403, 2007 Va. Cir. LEXIS 3067 (Westmoreland County Nov. 1, 2007).

    Demurrers to adjacent landowners’ complaint were sustained because there were no factual allegations in adjacent landowners’ complaint sufficient to support a claim of a categorical taking; although the landowners factually alleged an encroachment deprived them of all economic and physical use of a portion of their lots, they did not allege a taking of all use or value of their entire properties. Hamrick v. Bd. of Supervisors of Westmoreland Cty., 98 Va. Cir. 403, 2007 Va. Cir. LEXIS 3067 (Westmoreland County Nov. 1, 2007).

    Demurrers to adjacent landowners’ complaint were sustained because an ordinance was not facially unconstitutional as a taking of adjacent landowners’ properties without compensation in violation of the Virginia Constitution since all landowners in the county held their property subject to its zoning ordinance; the same right that a neighbor had under the ordinance inured to the benefit of the landowners and the other owners in the waterfront section of a development. Hamrick v. Bd. of Supervisors of Westmoreland Cty., 98 Va. Cir. 403, 2007 Va. Cir. LEXIS 3067 (Westmoreland County Nov. 1, 2007).

    Although an employer and an employee agreed that restrictive covenants would be placed in a new employment agreement, because they did not execute a new employment agreement, the employer did not state a cause of action upon which relief could be granted; therefore, the employee was entitled to a demurrer under § 8.01-273 . Workflow Solutions v. Lewis, 77 Va. Cir. 334, 2008 Va. Cir. LEXIS 186 (Norfolk Dec. 12, 2008).

    Manager’s demurrer to an employee’s complaint alleging that the manager breached her duty to protect and warn the employee of the danger posed by her husband was sustained because the complaint alleged no duty that the manager could have breached that was outside the scope of her authority; no special relationship existed between the manager and the employee because the relationship between them failed to meet any of the definitions of employer-employee since the manager did not pay any wages or salary to the employee, and no express or implied contractual relationship existed between her and the employee. Phillips v. BJ's Wholesale Club, Inc., 77 Va. Cir. 129, 2008 Va. Cir. LEXIS 230 (Norfolk Sept. 26, 2008).

    Court sustained demurrers in a defamation action because statements made in an audit report and in internal letters and those made during staff meetings and board meetings regarding the reasons an employee was discharged from his position as a lodge administrator were protected by qualified privilege where the statements were made to fellow board members or employees, who had corresponding interests or duties. Koegler v. Green, 78 Va. Cir. 478, 2009 Va. Cir. LEXIS 181 (Hanover County Sept. 1, 2009).

    Limited liability company’s demurrer to a trust’s action alleging fraud in the inducement and other claims was sustained because the trust failed to demonstrate in its pleadings any reliance upon the company’s misrepresentations since a settlement the trust executed with the company specifically contained a no reliance clause, whereby the trust promised that it was not relying on any representations outside the settlement, and the trust failed to show any material misrepresentation or omission by the company; because the settlement clearly established that the trust released all claims against the limited liability company related to their ownership of the company’s stock, the release covered the trust’s remaining claims since they originated from the trust’s ownership of the stock. Jared & Donna Murayama 1997 Trust v. NISC Holdings, LLC, 82 Va. Cir. 38, 2010 Va. Cir. LEXIS 119 (Fairfax County Sept. 13, 2010).

    County’s demurrer was sustained where an animal owner failed to state a cause of action for injunctive relief against the county after her animals were seized and adopted because the owner had an adequate remedy at law to bring actions in detinue against the individuals who adopted the animals. No injunction could have issued against the county because the adoptions were complete. Root v. County of Fairfax, 81 Va. Cir. 407, 2010 Va. Cir. LEXIS 134 (Fairfax County Dec. 14, 2010).

    Limited liability company’s demurer to a complaint filed by a trust and a member of its board of directors was sustained because the trust was barred from litigating all claims arising from or connected to its ownership of the limited liability company’s stock; the settlement the parties entered into contained a release provision waiving all claims known and unknown against the limited liability company arising from or in any way connected to the trust’s ownership of the company stock, and the trust failed to advance a valid defense to set aside the settlement release. Jared & Donna Murayama 1997 Trust v. NISC Holdings, LLC, 82 Va. Cir. 38, 2011 Va. Cir. LEXIS 31 (Fairfax County Feb. 14, 2011), aff'd, 284 Va. 234 , 727 S.E.2d 80, 2012 Va. LEXIS 149 (2012).

    Limited liability company’s demurer to a complaint filed by a trust and a member of its board of directors was sustained because the trust was incapable of pleading fraudulent inducement; the trust was not justified in its reliance on the limited liability company’s misrepresentations and had every reason to question its silence and statements regarding any sale of the limited liability company and the value of the trust’s shares because the trust was given information that would arouse the suspicions of an ordinary person, and the parties’ relationship had clearly developed into an adversarial one at the time of their settlement negotiations. Jared & Donna Murayama 1997 Trust v. NISC Holdings, LLC, 82 Va. Cir. 38, 2011 Va. Cir. LEXIS 31 (Fairfax County Feb. 14, 2011), aff'd, 284 Va. 234 , 727 S.E.2d 80, 2012 Va. LEXIS 149 (2012).

    Referring company’s demurrer to a staffing company’s counterclaim alleging that referring company fraudulently represented the qualifications of an employee was sustained as there were no facts alleged evincing a present intent on the part of the referring company not to perform the contract by purposely providing an unqualified worker to the staffing company; instead, the claim amounted to a breach of contract only. Moreover, the assertion by the referring company’s employee to the staffing company that he had “exactly what” the staffing company “was looking for” was no more than sales talk and was not actionable fraud. Envtl. Staffing Acquisition Corp. v. Beamon Enters., 2011 Va. Cir. LEXIS 65 (Portsmouth Feb. 22, 2011).

    In a slander of title action against a successor mortgage company and others, the company’s demurrer to the homeowner’s demand for punitive damages and attorneys’ fees was sustained because the homeowner failed to plead the element of malice necessary for punitive damages, and attorneys’ fees were not recoverable absent statutory authority. Koz v. Wells Fargo Home Mortg., 83 Va. Cir. 96, 2011 Va. Cir. LEXIS 102 (Fairfax County June 9, 2011).

    Supplier’s demurrer was sustained because homeowners alleged no facts, including warranties made or implied by the supplier, to support any claim of breach of express warranties; the homeowners had no contract relationship with the supplier, and no facts were alleged to support the claim of private nuisance against the supplier. Seeman v. Oxfordshire, LLC, 83 Va. Cir. 442, 2011 Va. Cir. LEXIS 126 (Suffolk Oct. 12, 2011).

    Realty company’s demurrer was sustained because homeowners failed to state a cause of action against the company; the homeowners alleged no facts, including warranties made or implied by the company, to support any claim of breach of warranties, and the company had no statutory or common law agency relationship with the owner of the property, its principal, that would establish upstream warranties, even if they did exist. Seeman v. Oxfordshire, LLC, 83 Va. Cir. 442, 2011 Va. Cir. LEXIS 126 (Suffolk Oct. 12, 2011).

    Plaintiffs were not party to the document and did not provide factual support to indicate their obligations and duties under the note were altered by the execution of the appointment instrument; thus, they lacked standing to maintain claims arising from the execution of the instrument appointing defendant as substitute trustee, and the demurrer was sustained in this regard. Waters v. CitiMortgage, Inc., 92 Va. Cir. 460, 2013 Va. Cir. LEXIS 209 (Chesterfield County Jan. 14, 2013).

    Demurrer of a county’s director of finance and budget was sustained, and the director was dismissed from the suit, because the director was only named in the count of the complaint that claimed she breached her fiduciary duty to the county, and she did not owe a fiduciary duty. Cty. of Lancaster v. Latimore, 97 Va. Cir. 401, 2013 Va. Cir. LEXIS 228 (Lancaster County May 31, 2013).

    School board’s demurrer was sustained as to the claim against it for an equitable accounting because the school board was not a fiduciary of the county. Cty. of Lancaster v. Latimore, 97 Va. Cir. 401, 2013 Va. Cir. LEXIS 228 (Lancaster County May 31, 2013).

    Demurrers were sustained because a county did not have a cause of action against school officials and a school board based on any alleged action under the statutory scheme being malfeasance in office since the statutory scheme gave the school board the right to bring legal proceedings to challenge any irregularity in the acts of an officer or employee but gave no such right to the county. Cty. of Lancaster v. Latimore, 97 Va. Cir. 401, 2013 Va. Cir. LEXIS 228 (Lancaster County May 31, 2013).

    Demurrers were sustained as to allegations that related to a school budget being by major classifications because the plain meaning of a resolution’s language clearly made the itemized budget list expressly subject to the terms and conditions; the resolution appropriated funds for public schools by the total and authorized the school board to transfer funds between categories. Cty. of Lancaster v. Latimore, 97 Va. Cir. 401, 2013 Va. Cir. LEXIS 228 (Lancaster County May 31, 2013).

    Window company’s demurrer was sustained with respect to privity and damages because a property owner did not contract directly with the company and thus, lacked privity; therefore, the owner was barred from recovering purely economic consequential damages in its warranty action. 139 Riverview, LLC v. Quaker Window Prods., 90 Va. Cir. 74, 2015 Va. Cir. LEXIS 45 (Norfolk Mar. 2, 2015).

    Property owners sought a declaratory judgment establishing the boundaries of the property, but they failed to present a justiciable controversy, and the cases they cited were not persuasive regarding judicial authority to establish wetlands boundary lines and/or establish riparian rights; the property owners had not sufficiently pleaded a controversy regarding the location of the wetlands boundaries on the Property and the concomitant riparian rights, and the demurrer was sustained, and leave to amend the complaint was granted. Nicoll v. City of Norfolk Wetlands Bd., 90 Va. Cir. 169, 2015 Va. Cir. LEXIS 37 (Norfolk Apr. 10, 2015).

    In an action arising from plaintiff’s claim of injury from a malfunctioning elevator at a hotel, plaintiff failed to sufficiently plead a breach of contract claim against an elevator company that contracted to repair and maintain the hotel elevators, as plaintiff failed to establish that she was a third-party beneficiary of the elevator company’s contract, and a demurrer by the elevator company was proper. Freeman v. Doubletree by Hilton, 90 Va. Cir. 182, 2015 Va. Cir. LEXIS 29 (Norfolk Apr. 17, 2015).

    Defendant’s demurrer to plaintiff’s claim for punitive damages was granted because there was no allegation that there was any external event that alerted defendant to the fact that his ability to drive was impaired or that his conduct was in conscious disregard of the rights of others. Carpenter v. Hawkins, 93 Va. Cir. 420, 2016 Va. Cir. LEXIS 104 (Augusta County June 14, 2016).

    Town’s demurrer was sustained because the owner’s pleading was legally insufficient where he failed to prove that the town had constructive notice of the clogged pipe that caused a sewage backup and subsequent leakage into the owner’s basement inasmuch as a manhole covering over a sewer line did not, alone, create actual or constructive notice of a defect therein, the owner’s counsel did not submit a reply brief to the demurrer, and did not pled any alternative facts that would demonstrate that the town had any actual or constructive notice of the back up in the pipe. East v. Town of Vinton, 95 Va. Cir. 372, 2017 Va. Cir. LEXIS 71 (Roanoke County Apr. 12, 2017).

    Bank’s demurrer was sustained because fees and hidden charges could be subsumed within those charges permitted by the statute or collateral services that were contracted for and performed in good faith. Bekenstein v. Bank of Am., N.A., 2017 Va. Cir. LEXIS 355 (Richmond Sept. 28, 2017).

    Bank’s demurrer was sustained because a “Release” fee could not be usurious since it was tabulated as part of a settlement’s “Recording Fee,” which was expressly permitted by statute; the complaint of a husband and a wife against the bank failed to allege that the tax service was not contracted for and performed in good faith. Bekenstein v. Bank of Am., N.A., 2017 Va. Cir. LEXIS 355 (Richmond Sept. 28, 2017).

    Mere allegation that plaintiff wrote a few checks to the member personally did not rise to the level required for piercing the corporate veil of the limited liability company, and there was no indication that the LLC was the alter ego of the member or a sham, plus nothing showed that the member controlled the LLC to perpetuate a crime; the demurrer was sustained. Van Buren v. Earl Ronald Poston & Old Meadow, LLC, 97 Va. Cir. 229, 2017 Va. Cir. LEXIS 335 (Loudoun County Nov. 30, 2017).

    Citizens’ complaint against a school board and board members did not pass the demurrer standard because the citizens failed to sufficiently allege the four elements required for an injunction; the complaint merely stated conclusory statements of fact, and the circuit court acknowledged the possibility of a remedy at law. Martinson v. Evans, 2018 Va. Cir. LEXIS 18 (Fairfax County Feb. 15, 2018).

    In a case in which counterclaim-plaintiff alleged that he was injured when counterclaim-defendants and third-party defendants improperly induced him to sell his membership interests in the limited liability companies, counterclaim-defendants’ and third-party defendants’ demurrer to counterclaim-plaintiff’s statutory civil conspiracy claim was sustained because counterclaim-plaintiff’s pleadings were insufficient to allege damage to his business interests and a violation of civil conspiracy statute as a membership interest in a limited liability company was personal property; and the allegations of a wrongfully induced sale of personal interests were not sufficient to establish a business injury under the civil conspiracy statute. FC Oaks, L.L.C. v. Patty, 104 Va. Cir. 47, 2019 Va. Cir. LEXIS 1192 (Virginia Beach Nov. 19, 2019).

    The contract made clear that at the time of contracting, the amount due under the contract was an estimate, ultimately calculable upon the actual number of units migrated, and the provision would be meaningless if the estimated value was a fixed payment obligation; therefore, the terms of the agreement between the parties showed that there was not a legally enforceable obligation for defendant to pay plaintiff over $11 million for performance under the contract. As plaintiff failed to meet the first element of its breach of contract claim, the demurrer was sustained. Iron Bow Techs., LLC v. Agile Def., Inc., 104 Va. Cir. 220, 2020 Va. Cir. LEXIS 12 (Fairfax County Feb. 6, 2020).

    Demurrer was sustained as to limited liability company members’ fraud claim against individual managers because (1) the claim did not attribute specific statements to specific members, and (2) the dates and locations of statements were not alleged. Johnson v. Bella Gravida, LLC, 105 Va. Cir. 350, 2020 Va. Cir. LEXIS 103 (Fairfax County July 20, 2020).

    Demurrer was sustained as to limited liability company members’ statutory conspiracy claim because (1) the members lacked standing, as the members had to bring the claim derivatively, (2) managers could not have conspired with each other under the intracorporate immunity doctrine, and (3) the members did not allege a conspiracy to harm the members in the members’ trade or business. Johnson v. Bella Gravida, LLC, 105 Va. Cir. 350, 2020 Va. Cir. LEXIS 103 (Fairfax County July 20, 2020).

    Demurrer was sustained as to limited liability company (LLC) members’ breach of contract claim against individuals because the obligation allegedly breached belonged to the LLC. Johnson v. Bella Gravida, LLC, 105 Va. Cir. 350, 2020 Va. Cir. LEXIS 103 (Fairfax County July 20, 2020).

    Demurrer was sustained as to limited liability company (LLC) members’ unjust enrichment claim against individuals and an LLC because it was not alleged (1) the LLC should have expected to repay the members, or (2) individuals knew a benefit had been conferred on them. Johnson v. Bella Gravida, LLC, 105 Va. Cir. 350, 2020 Va. Cir. LEXIS 103 (Fairfax County July 20, 2020).

    Demurrer was sustained as to limited liability company members’ conversion claim against individuals because the members did not own allegedly converted funds at the time of the alleged tort. Johnson v. Bella Gravida, LLC, 105 Va. Cir. 350, 2020 Va. Cir. LEXIS 103 (Fairfax County July 20, 2020).

    Demurrer was sustained as to limited liability company members’ claim against individuals of breach of fiduciary duty because (1) a member could not bring such a claim against a manager or another member, (2) the Virginia Stock Corporation Act did not apply, and (3) the source of duty rule barred a claim of breach of a limited liability company agreement. Johnson v. Bella Gravida, LLC, 105 Va. Cir. 350, 2020 Va. Cir. LEXIS 103 (Fairfax County July 20, 2020).

    Demurrer was sustained as to limited liability company members’ claim against individuals of a violation of the Virginia Limited Liability Company Act because (1) the statute did not provide for the enforcement of an obligation against individuals personally, and (2) the complaint did not specifically allege when a demand was made on the individuals, or which specific documents were demanded. Johnson v. Bella Gravida, LLC, 105 Va. Cir. 350, 2020 Va. Cir. LEXIS 103 (Fairfax County July 20, 2020).

    In plaintiffs’ suit against defendants regarding the accused individual’s sexual abuse of minor boys, the demurrers to the negligent hiring and retention claims against the individual defendants were sustained as those claims were available against an employer, not individuals who played a role in hiring or retaining an employee. J.W.C. v. Immanuel Baptist Church, 2021 Va. Cir. LEXIS 148 (Chesterfield County May 4, 2021).

    Grant of demurrer improper. —

    County’s argument that the taxpayer offered no facts supporting the allegation that the county employed improper appraisal methodologies was rejected given that the specifics of the assessor’s methodology was largely, if not exclusively, available through discovery. Hershey Chocolate of Va. v. Cnty. of Augusta, 92 Va. Cir. 141, 2015 Va. Cir. LEXIS 205 (Augusta County Aug. 21, 2015).

    Motion for reconsideration of grant of demurrer in divorce action denied. —

    A wife’s motion to reconsider a demurrer granted to a husband pursuant to § 8.01-273 as to the wife’s complaint for divorce was denied; mental cruelty was not a ground for divorce pursuant to § 20-91 , and the wife failed to plead sufficient facts to support a ground of desertion or constructive desertion. Williams v. Williams, 60 Va. Cir. 309, 2002 Va. Cir. LEXIS 397 (Roanoke County Nov. 5, 2002).

    Demurrer denied as to defamation but claim sustained as to claim of misappropriation of name. —

    Defendants’ demurrer pursuant to § 8.01-273 was denied as to plaintiffs’ defamation claim, as the statements in question could have referred to the owner of an auto dealership as well as the dealership itself, but the demurrer was sustained as to plaintiffs’ claims that defendants misappropriated the owner’s, name, likeness, or image under subsection A of § 8.01-40 , as reporting on a local car dealership issue was a newsworthy item and of public interest, and this claim could, in no way, be deemed a use of name for advertising purposes or for the purpose of trade within the meaning of § 8.01-40 according to the assertions made. Graham v. Young Broad. of Richmond, Inc., 60 Va. Cir. 376, 2002 Va. Cir. LEXIS 408 (Richmond Nov. 15, 2002).

    Arguments not stated in demurrer may not be considered. —

    Trial court declined to consider a particular argument that was raised by defendant installer’s successor in support of its demurrer because the argument was not alleged in the demurrer, as § 8.01-273 did not allow the trial court to consider grounds that were not specifically stated in the demurrer. MDM Assocs. v. Johns Bros. Energy Techs., JFB, Inc., 59 Va. Cir. 295, 2002 Va. Cir. LEXIS 377 (Norfolk July 31, 2002).

    Breach of contract as tort. —

    Summary judgment was denied insurance agent where failure to state a sufficient cause of action was improperly under the summary judgment motion and facts were disputed; a demurrer was denied as the insured alleged a negligent breach of a common-law duty separate from the insurance contract by suggesting that the insured impliedly based his claim on misrepresentation, which was a cognizable cause of action based upon the tort of fraud. Rowland v. State Farm Fire & Cas. Co., 64 Va. Cir. 16, 2003 Va. Cir. LEXIS 201 (Fairfax County Oct. 14, 2003).

    Insufficient facts alleged to proceed with punitive damages claim. —

    Administratrix had not alleged sufficient facts to proceed with her claim for punitive damages. Although Virginia had liberal pleading requirements, § 8.01-273 required that she allege facts on which relief could be based. Williams v. Med. Facilities of Am., 75 Va. Cir. 416, 2005 Va. Cir. LEXIS 380 (Virginia Beach Feb. 16, 2005).

    Sufficient facts in complaint. —

    Although the employer of an assailant raised the argument that an injured person failed to allege that the employer’s actions arose to malice or a conscious disregard of others, the court could only consider the grounds stated specifically in the demurrer; however, the complaint, read fairly with all inferences taken reasonably therefrom, alleged that the employer provided the assailant with alcohol, knew that he was physically fighting with a customer at least once, and that the assailant returned to the kitchen and was allowed to retrieve a knife owned by the employer in order to return to a fight with the customer. Beach v. McKenney, 82 Va. Cir. 436, 2011 Va. Cir. LEXIS 156 (Charlottesville Apr. 5, 2011).

    Taxpayer had alleged sufficient facts to survive a demurrer on the issue of property being assessed at a value greater than fair market value where the taxpayer’s allegations as to the fair market value were factual in nature, and for purposes of examining a demurrer, the alleged facts were assumed to be true. Hershey Chocolate of Va. v. Cnty. of Augusta, 92 Va. Cir. 141, 2015 Va. Cir. LEXIS 205 (Augusta County Aug. 21, 2015).

    Allegations in a complaint filed by a decedent’s children were sufficient to state a cause of action against the decedent’s second wife and to survive her demurrer because the children were intended third-party beneficiaries of the separation and property settlement agreement entered into between the decedent and his first wife upon their divorce; thus, the children had standing to sue for breach of contract. Griffin v. Cowser-Griffin, 92 Va. Cir. 282, 2016 Va. Cir. LEXIS 207 (Surry County Jan. 29, 2016).

    OPINIONS OF THE ATTORNEY GENERAL

    Demurrer. —

    A demurrer can be filed in both general district courts and circuit courts to challenge the legal sufficiency of a cause of action. See opinion of Attorney General to The Honorable Scott A. Surovell, Member, House of Delegates, No. 14-078, 2015 Va. AG LEXIS 7 (2/4/15).

    § 8.01-273.1. Motion for judgment; motion to refer; Virginia Birth-Related Neurological Injury Compensation Act.

    1. In any civil action, where a party, who is a participating hospital or physician as defined in § 38.2-5001, moves to refer a cause of action to the Workers’ Compensation Commission for the purposes of determining whether the cause of action satisfies the requirements of the Virginia Birth-Related Neurological Injury Compensation Act (§ 38.2-5000 et seq.), the court shall forward the motion to refer together with a copy of the motion for judgment to the Commission and stay all proceedings on the cause of action pending an award and notification by the Commission of its disposition; provided, however, that the motion to refer the cause of action to the Workers’ Compensation Commission shall be filed no later than 120 days after the date of filing a grounds of defense by the party seeking the referral.
    2. Upon entry of the order of referral by the court, the clerk of the circuit court shall file with the Workers’ Compensation Commission within thirty days a copy of the motion for judgment and the responsive pleadings of all the parties to the action. The clerk shall copy all counsel of record in the civil action on the transmittal letter accompanying the materials being filed with the Workers’ Compensation Commission. All parties to the civil action shall be entitled to participate before the Commission upon filing a notice of appearance with the Clerk of the Commission within twenty-one days after receipt of the transmittal letter to the clerk of the circuit court. Notwithstanding the provisions of § 32.1-127.1:03 , the moving party shall provide the Commission with an original and five copies of the following: appropriate assessments, evaluations, and prognoses and such other records obtained during discovery and are reasonably necessary for the determination of whether the infant has suffered a birth-related neurological injury. The medical records and the pleadings referenced in this subsection shall constitute a petition as referenced in § 38.2-5004. The moving party shall be reimbursed for all copying costs upon entry of an award of benefits as referenced in § 38.2-5009.

    History. 1999, c. 822; 2000, c. 207.

    The 2000 amendments.

    The 2000 amendment by c. 207, effective April 1, 2000, added the subsection A designator and near the beginning of subsection A inserted “who is a participating hospital or physician as defined in § 38.2-5001,” at the end of subsection A added the language beginning “provided, however, that” and ending with “party seeking the referral,” and added subsection B.

    CASE NOTES

    2000 amendments not retroactive. —

    The Virginia Workers’ Compensation Commission did not abuse its discretion by finding that the April 1, 2000, amendments to § 8.01-273.1 and § 38.2-5001 did not apply retroactively. Berner v. Mills, 38 Va. App. 11, 560 S.E.2d 925, 2002 Va. App. LEXIS 175 (2002), aff'd, 265 Va. 408 , 579 S.E.2d 159, 2003 Va. LEXIS 52 (2003).

    Amendments to the law surrounding the Virginia Birth-Related Neurological Injury Compensation Act were effective prospectively, as the phrase “declaratory of existing law” did not state retroactive intent and the language of the amended laws did not support retroactivity. Berner v. Mills, 265 Va. 408 , 579 S.E.2d 159, 2003 Va. LEXIS 52 (2003).

    Virginia Workers’ Compensation Commission. —

    Clear language of subsection A of § 8.01-273.1 alters the Gibson v. Riverside Hospital decision; the Virginia Workers’ Compensation Commission has the sole authority to determine whether a cause of action satisfies the requirements of the Virginia Birth-Related Neurological Injury Compensation Act, § 38.2-5000 et seq. If that determination is in the affirmative, the Act is the exclusive remedy for all claimants, no matter the identity of the claimant or the cause of action. Cooper v. Adler, 44 Va. App. 268, 604 S.E.2d 747, 2004 Va. App. LEXIS 554 (2004).

    Mother’s counsel’s appearance complied with statute. —

    Mother’s counsel’s timely written notice to the Virginia Workers’ Compensation Commission of his representation of the mother associated with her emotional distress claim, along with his participation at the hearing, constituted sufficient compliance with § 8.01-273.1 ; the Commission did not err in allowing the mother to participate in an appeal of an award of Virginia Birth-Related Neurological Injury Compensation Act, § 38.2-5000 et seq., benefits to her son. Cooper v. Adler, 44 Va. App. 268, 604 S.E.2d 747, 2004 Va. App. LEXIS 554 (2004).

    Petition. —

    Petition includes all medical records and expert reports that can be characterized as assessments, evaluations, prognoses, and records that can be obtained during discovery, and nothing supported appellants’ proposition that the deputy commissioner was limited to considering only the petition to make a jurisdictional determination; there is no statutory language that limits the Virginia Workers’ Compensation Commission’s authority to consider the entire record when making a jurisdictional determination, and the Commission did not err in considering other documents when making its determination of jurisdiction. Women's Healthcare Assocs. v. Mucci, 64 Va. App. 420, 768 S.E.2d 720, 2015 Va. App. LEXIS 71 (2015).

    § 8.01-274. Motion to strike defensive pleading in equity and at law; exceptions abolished.

    Exceptions to answers for insufficiency are abolished. The test of the sufficiency of any defensive pleading in any suit in equity or action at law shall be made by a motion to strike; if found insufficient, but amendable, the court may allow amendment on terms. If a second pleading is adjudged insufficient, the court may enter such judgment or decree or take such other action that it deems appropriate.

    History. Code 1950, § 8-122; 1954, c. 605; 1977, c. 617; 1978, c. 336.

    REVISERS’ NOTE

    Case law indicated that a defensive pleading at law could be tested by a motion to strike. Similarly, former § 8-122 provided that a challenge for insufficiency, either of law or fact, directed to a defensive pleading in equity was made by a “motion to strike out.”

    Section 8.01-274 in combination with § 8.01-273 provides a uniform procedure for challenging pleadings in a civil action, whether in equity or at law: aggressive pleadings are to be challenged by the demurrer, and defensive pleadings by the motion to strike.

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, § 111.

    CASE NOTES

    Editor’s note.

    This section has enlarged the function of exceptions to answers and covers every form of insufficiency of answer — whether nonresponsive to the allegations of the bill, evasive, or insufficient as a matter of law. Thomasson v. Walker, 168 Va. 247 , 190 S.E. 309 , 1937 Va. LEXIS 220 (1937).

    Under it the motion to strike now takes the place of exceptions to answers for insufficiency. The effect of the motion to strike is to admit that even if the facts set up in the answer are true, yet they are not sufficient as a matter of law to constitute a bar to the action or proceeding. Casilear v. Casilear, 168 Va. 46 , 190 S.E. 314 , 1937 Va. LEXIS 204 (1937).

    There is no conflict between this section and § 8.01-283 , the privilege and manner of testing the answer simply being enlarged. Both sections are available to a litigant. He may exercise his choice, and unless he is willing to stake his whole case upon a hearing on bill and answer only, he may avail himself of the motion to strike, and thereby secure a judicial expression which may guide him in further proceeding. Thomasson v. Walker, 168 Va. 247 , 190 S.E. 309 , 1937 Va. LEXIS 220 (1937).

    CIRCUIT COURT OPINIONS

    Uniform Commercial Code’s Statute of Frauds affirmative defense struck. —

    Seller and buyer had an “open account” under their written agreement, which was an exception to the writing requirement under the Uniform Commercial Code’s Statute of Frauds, so the court denied the buyer’s motion to dismiss the seller’s suit for payment and granted the seller’s motion to strike that statute of frauds affirmative defense. Quality Foods Coop., Inc. v. New River Oils, L.L.C., 66 Va. Cir. 464, 2001 Va. Cir. LEXIS 531 (Amherst County Feb. 14, 2001).

    Common law provides a remedy to a takings claim. —

    Motion to strike and dismiss a landowner’s objections to a condemnation petition filed by the Commissioner of Highways was denied because the common law provided a remedy to an Art. I, § 11 takings claim; although subsection G of § 1-219.1 and subdivision A 9 of § 25.1-417 did not expressly delineate a remedy to VDOT’s finding that the portion of the land that was not subject to the taking was not an “uneconomic remnant,” the language of those sections also did not state that there was no remedy for an alleged wrongful determination that a parcel of land was not an “uneconomic remnant.” Comm'r of Hwys v. W. Dulles Props., L.L.C., 86 Va. Cir. 284, 2013 Va. Cir. LEXIS 16 (Fairfax County Mar. 4, 2013).

    § 8.01-274.1. Motion or petition for rule to show cause for violation of court order.

    Except as otherwise provided by law, any party requesting a rule to show cause for a violation of a court order in any civil action in a court of record shall file with the court a motion or petition, which may be on a form prescribed by the Office of the Executive Secretary of the Supreme Court of Virginia. The motion or petition shall include facts identifying with particularity the violation of a specific court order and be sworn to or accompanied by an affidavit setting forth such facts. A rule to show cause entered by the court shall be served on the person alleged to have violated the court order, along with the accompanying motion or petition and any affidavit filed with such motion or petition.

    History. 2018, c. 522.

    Effective date.

    This section became effective July 1, 2018.

    CASE NOTES

    Substituted service. —

    Because the circuit court’s determinations were supported by the record, and the statute did not preclude substituted service of a show cause order, the circuit court properly dismissed a husband’s motion to quash service of process; the wife showed proper substituted service on a family member at the husband’s usual place of abode and attempted to give the husband notice of the hearing both by email and by sending the show cause rule and accompanying documents to a post office box. Koons v. Crane, 72 Va. App. 720, 853 S.E.2d 524, 2021 Va. App. LEXIS 13 (2021).

    Phrase “served on the person” in § 8.01-274.1 refers to the multiple methods for obtaining in personam jurisdiction over a party, which include substituted service pursuant to subdivision 2 of § 8.01-296 ; either substituted service on a family member or by posting is valid service upon a “natural person” if it occurs at the party’s “usual place of abode, and under subdivision 2 of § 8.01-296 , substituted service at a party’s usual place of abode may give a court jurisdiction over that person. Koons v. Crane, 72 Va. App. 720, 853 S.E.2d 524, 2021 Va. App. LEXIS 13 (2021).

    Husband was properly served with a show cause rule because he was a nonresident, and thus, the Virginia long-arm statute applied, and substituted service of the show cause rule was valid; the long-arm statute did not require personal service on the nonresident, and substituted service in Washington was sufficient to give the Virginia court personal jurisdiction over the husband and satisfy the requirement that a show cause rule be “served on the person.” Koons v. Crane, 72 Va. App. 720, 853 S.E.2d 524, 2021 Va. App. LEXIS 13 (2021).

    § 8.01-275. When action or suit not to abate for want of form; what defects not to be regarded.

    No action or suit shall abate for want of form where the motion for judgment or bill of complaint sets forth sufficient matter of substance for the court to proceed upon the merits of the cause. The court shall not regard any defect or imperfection in the pleading, whether it has been heretofore deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defense that judgment, according to law and the very right of the cause, cannot be given.

    History. Code 1950, §§ 8-102, 8-109; 1954, c. 333; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-275 combines former §§ 8-102 and 8-109, and deletes the unnecessary reference to a demurrer. The exception in former § 8-109 for demurrer to a plea in abatement has been abolished. See § 8.01-276 .

    Cross references.

    For what a judgment not to be reversed, see § 8.01-678 .

    For rule of court on general provisions as to pleadings, see Rule 3:18.

    Law Review.

    For comment, “Recovering Asbestos Abatement Cost,” see 10 G.M.U. L. Rev. 451 (1988).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Abatement, Survival and Revival, § 17.

    CASE NOTES

    Analysis

    I.General Consideration.

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    Section based upon public policy. —

    This section and § 8.01-678 , requiring the courts to disregard trifling defects in pleadings or procedure, are based upon a sound public policy, and are supported by the unanswerable logic of the progressive exponents of the best legal thought, with which the Supreme Court has been in full accord. Kennedy v. Mullins, 155 Va. 166 , 154 S.E. 568 , 1930 Va. LEXIS 155 (1930).

    Purpose. —

    The purpose of this section is that demurrers challenging pleadings on grounds that are not substantial or material, and which do not go to the very merits of a cause, are no longer allowed. Griffin v. Griffin, 183 Va. 443 , 32 S.E.2d 700, 1945 Va. LEXIS 191 (1945) (see Washington v. Garrett, 189 Va. 57 , 52 S.E.2d 83 (1949); Turpin v. Lyle, 377 F. Supp. 170 (W.D. Va. 1974)).

    Formal and substantial defects distinguished. —

    If the matter pleaded be in itself insufficient without reference to the manner of pleading it, the defect is substantial; but if the only fault is in the form of alleging it, the defect is formal. Norfolk & P. Belt Line R.R. v. Sturgis, 117 Va. 532 , 85 S.E. 572 , 1915 Va. LEXIS 68 (1915).

    A motion is sufficient if it informs the defendant of the nature of the demand made upon him, and states such facts as will enable the court to say that if the facts are proved as alleged they establish a good cause of action. Virginia Portland Cement Co. v. Luck's Adm'r, 103 Va. 427 , 49 S.E. 577 , 1905 Va. LEXIS 12 (1905); Virginia & N.C. Wheel Co. v. Harris, 103 Va. 708 , 49 S.E. 991 , 1905 Va. LEXIS 41 (1905); Cosmopolitan Life Ins. Co. v. Koegel, 104 Va. 619 , 52 S.E. 166 , 1905 Va. LEXIS 142 (1905); Stonegap Colliery Co. v. Hamilton, 119 Va. 271 , 89 S.E. 305 , 1916 Va. LEXIS 105 (1916).

    Where motion, though inartificially commencing statement of cause of action with a quod cum, yet states the essential averments in direct and positive terms, it is sufficient. Roanoke Nat'l Bank v. Hambrick, 82 Va. 135 , 1886 Va. LEXIS 17 (1886).

    Test as to sufficiency of notice of motion. —

    The tendency of modern times is to simplify matters of mere procedure, and for this reason the procedure by motion is looked upon with great indulgence, and notices are upheld as sufficient, however informal, where they contain sufficient substance to fairly apprise the defendant of the nature of the demand made upon him, and state sufficient facts to enable the court to say that if the facts stated are proved, the plaintiff is entitled to recover. Mankin v. Aldridge, 127 Va. 761 , 105 S.E. 459 , 1920 Va. LEXIS 83 (1920).

    A motion is sufficient if it informs the defendant of the nature of the demand made upon him, and states such facts as will enable the court to say that if the facts are proved as alleged they establish a good cause of action. Stonegap Colliery Co. v. Hamilton, 119 Va. 271 , 89 S.E. 305 , 1916 Va. LEXIS 105 (1916).

    A motion is sufficient which contains sufficient matter to enable the plaintiff to prove his case and so apprises the defendant of that case as to enable him to make defense. Cosmopolitan Life Ins. Co. v. Koegel, 104 Va. 619 , 52 S.E. 166 , 1905 Va. LEXIS 142 (1905).

    What particularity required in motion. —

    The motion in a case sets forth minutely the time, the place and the circumstances under which the plaintiff received the injuries complained of. To require more would be to compel the plaintiff to set forth in the motion matters of evidence. This has never been required, even under the strict rule of pleading which formerly prevailed. Kelly v. Schneller, 148 Va. 573 , 139 S.E. 275 , 1927 Va. LEXIS 256 (1927).

    If a pleading to the merits shows sufficient substance for the court to see how to give judgment according to law and the very right of the case it is good, though defective in form, under the provisions of this section. Stonegap Colliery Co. v. Hamilton, 119 Va. 271 , 89 S.E. 305 , 1916 Va. LEXIS 105 (1916).

    That a motion is unnecessarily long is immaterial in view of this section. Norfolk & W. Ry. v. Whitehurst, 125 Va. 260 , 99 S.E. 568 , 1919 Va. LEXIS 21 (1919).

    Demurrer lies only to defects apparent on face of pleading. —

    A demurrer properly lies for such defects and such only as are apparent upon the face of the pleading. Russell Creek Coal Co. v. Wells, 96 Va. 416 , 31 S.E. 614 , 1898 Va. LEXIS 109 (1898); Watts v. Commonwealth, 99 Va. 872 , 39 S.E. 706 , 1901 Va. LEXIS 111 (1901).

    Demurrer proper when motion sets out facts insufficient on their face. —

    Under this section, providing that a demurrer shall not be sustained to a motion alleging negligence of defendant because the particulars of the negligence are not alleged, should the facts relied upon to establish negligence be set out in the motion and are on their face insufficient, then a demurrer may be interposed. Crosswhite v. Shelby Operating Corp., 182 Va. 713 , 30 S.E.2d 673, 1944 Va. LEXIS 224 (1944).

    Duplicity is no ground of demurrer. —

    Since the effect of this section is to abolish special demurrers, mere duplicity in a count in a declaration is no longer a good ground of demurrer. Norfolk & W.R.R. v. Ampey, 93 Va. 108 , 25 S.E. 226 , 1896 Va. LEXIS 57 (1896).

    Affidavit accompanying pleadings not subject to demurrer. —

    A demurrer to a plea required by statute to be verified by affidavit does not bring to the attention of the court the lack of the affidavit, which is no part of the plea. Plaintiff should object to the reception of the plea when tendered because not so verified. He cannot make objection after having taken issue, either of law, or fact, on it. Lewis v. Hicks, 96 Va. 91 , 30 S.E. 466 , 1898 Va. LEXIS 64 (1898).

    Decision of an issue of law on a demurrer is a decision on the merits and constitutes res adjudicata as to any other proceedings where the same parties and the same issues are involved. Turpin v. Lyle, 377 F. Supp. 170, 1974 U.S. Dist. LEXIS 8249 (W.D. Va. 1974).

    A demurrer must go to the heart of the cause, and if it is sustained it is a decision on the merits of the cause. Griffin v. Griffin, 183 Va. 443 , 32 S.E.2d 700, 1945 Va. LEXIS 191 (1945).

    A demurrer goes to the heart of the case, and if sustained, it is a decision on the merits. Thus a judgment rendered thereon has the effect of a judgment on the merits where there has been no amendment sought or appeal noted. Turpin v. Lyle, 377 F. Supp. 170, 1974 U.S. Dist. LEXIS 8249 (W.D. Va. 1974).

    What defects not cured. —

    Where there has been a demurrer to any pleading and the same has been overruled, this section cures no defect, imperfection, or omission therein, except such as could have been regarded on demurrer. Southern Ry. v. Willcox, 98 Va. 222 , 35 S.E. 355 , 1900 Va. LEXIS 29 (1900).

    It is defendant’s right and duty to call for a bill of particulars if the notice of motion in a wrongful death action failed to particularize the acts of negligence. P.L. Farmer, Inc. v. Cimino, 185 Va. 965 , 41 S.E.2d 1, 1947 Va. LEXIS 234 (1947) (see Washington v. Garrett, 189 Va. 57 , 52 S.E.2d 83 (1949)).

    II.Illustrative Cases.

    Practice when general allegation of negligence insufficient in plaintiff’s pleading. —

    The plaintiff may not, under the provisions of this section, force a defendant into a trial upon the evidence upon a general averment alleging that the defendant has been negligent without alleging any specific act which he charges to have constituted the negligence of the defendant. In such a case, if the defendant calls for a bill of particulars and the bill of particulars filed, when read in conjunction with the notice of motion, fails to set forth with reasonable certainty and particularity any specific act of negligence charged and sufficient facts with reference thereto to enable the court to say that if the facts set forth be proven substantially as alleged, the defendant has been guilty of some specific act of negligence for which the plaintiff is entitled to recover, the defendant may move the court to strike out the bill of particulars and exclude all evidence tendered by the plaintiff. Kaylor v. Quality Bread & Cake Co., 155 Va. 156 , 154 S.E. 572 , 1930 Va. LEXIS 154 (1930).

    Allegation of duty. —

    An allegation of duty is only a conclusion of law. When the facts alleged show the duty, and are stated with sufficient clearness to prevent surprise and enable the court to proceed upon the merits of the cause, a motion ought to be sustained. Virginia & N.C. Wheel Co. v. Harris, 103 Va. 708 , 49 S.E. 991 , 1905 Va. LEXIS 41 (1905).

    In an action against a city for personal injuries sustained by reason of an alleged defect in a sidewalk, a motion alleged that it was the duty of the city to keep its streets sound, safe, and suitable for public use and travel, and particularly the sidewalk in question. The allegation of duty was mere surplusage, and under the provisions of this section and § 8.01-678 , directing the court to disregard formal defects in pleading, it was no ground for a motion in arrest of judgment. City of Richmond v. McCormack, 120 Va. 552 , 91 S.E. 767 , 1917 Va. LEXIS 141 (1917).

    Statement of duty not necessary. —

    An allegation of duty is only a conclusion of law; and where the facts alleged show the duty, and are stated with sufficient clearness to prevent surprise and enable the court to proceed upon merits of the cause, the motion ought to be sustained. Virginia & N.C. Wheel Co. v. Harris, 103 Va. 708 , 49 S.E. 991 , 1905 Va. LEXIS 41 (1905).

    Averment as to relations of the parties in personal injury action. —

    A motion in an action for personal injuries is sufficient if such averments are made as to the circumstances under which the injury was inflicted as will show the existence of the duty which it is averred has been neglected by the defendant to the injury of the plaintiff. The relations of the parties need not be otherwise averred, unless there be omitted something essential to the action that judgment cannot be given according to law and the very right of the case. Norfolk & W. Ry. v. Wood, 99 Va. 156 , 37 S.E. 846 , 1901 Va. LEXIS 23 (1901).

    Motion in action by licensee must show intentional or wilful injury, etc. —

    In an action for personal injuries by a licensee plaintiff, the motion does not state a good cause of action which does not aver that the defendant intentionally or wilfully injured the plaintiff, or that, after the defendant saw or knew of his danger, or by use of ordinary care might have known of his danger could have avoided injuring him, but failed to do so. Norfolk & W. Ry. v. Wood, 99 Va. 156 , 37 S.E. 846 , 1901 Va. LEXIS 23 (1901).

    Sufficient statement of place and date. —

    In an action for damages for personal injuries sustained at a railroad crossing, where four counts in the motion gave the date and place of the accident, and such particulars thereof as plainly informed the company of every fact relied on by the plaintiff, which was essential to enable it to make its defense, this was sufficient, and the court below properly overruled the demurrer. Norfolk & S. Ry. v. Smith, 122 Va. 302 , 94 S.E. 789 , 1918 Va. LEXIS 98 (1918).

    Sufficiency of allegations in complaint. —

    Patient’s initial complaint for medical malpractice against the doctor who performed breast revision surgery on the patient pleaded negligence as the only theory of recovery. Although the complaint repeatedly alleged that the doctor operated on the wrong breast of the patient, it always unmistakably tied this allegation to a negligence theory so that nothing in the complaint informed the doctor that the patient was alleging the intentional tort of battery. Allison v. Brown, 293 Va. 617 , 801 S.E.2d 761, 2017 Va. LEXIS 104 (2017).

    Omission of date note placed for collection. —

    In an action against a bank for negligence in failing to protest a note placed with it for collection, it is sufficient if the motion avers it was so placed before its maturity, though the date of the placing is not specified. Roanoke Nat'l Bank v. Hambrick, 82 Va. 135 , 1886 Va. LEXIS 17 (1886).

    Omission of promise to pay. —

    Under this section a common count of indebitatus for services rendered, in a motion, is not subject to demurrer because of the omission of the usual allegation of a promise to pay. City of Newport News v. Potter, 122 F. 321, 1903 U.S. App. LEXIS 4760 (4th Cir. 1903).

    Misuse of “trespass” and “case” not substantial. —

    If a pleading to the merits shows sufficient substance for the court to see how to give judgment according to law and the very right of the case it is good under the provisions of this section, even though it is defective in form. The mere fact that the declaration designated an action as “trespass” when the facts alleged show that it is “case” is immaterial. Stonegap Colliery Co. v. Hamilton, 119 Va. 271 , 89 S.E. 305 , 1916 Va. LEXIS 105 (1916).

    Contractor’s claim for balance due on work done. —

    Where the motion of a contractor suing for a balance due on work done by him, sufficiently advised the defendant of the nature of the contractor’s claim, and although it did not in specific terms charge fraud or bad faith on the part of the architects who were required by the working contracts and specifications to approve the work, did so in substance, the motion is sufficient under this section. Richmond College v. Scott-Nuckols Co., 124 Va. 333 , 98 S.E. 1 , 1919 Va. LEXIS 128 (1919).

    CIRCUIT COURT OPINIONS

    Claim not abated for want of form. —

    Although an executrix failed to allege a cause of action, she clearly sought reformation of a 401k account contract based on a mutual mistake of fact; based on § 8.01-275 , the claim would not abate for want of form. Pleasant v. Haynes, 70 Va. Cir. 396, 2006 Va. Cir. LEXIS 56 (Roanoke Apr. 25, 2006).

    Due diligence not found. —

    Where the first defendant mailed a copy of its cross-claim against the second defendant, along with the filing fee, to the Secretary of the Commonwealth of Virginia, and mailed a copy to the second defendant’s counsel but never served the second defendant with the cross-claim, later received a returned check from the Secretary’s office but never followed up to see if the second defendant was served, and a certificate of compliance was never sent to the trial court from the Secretary because the first defendant erroneously addressed the affidavit sent to the Secretary to the wrong court, it failed to exercise “due diligence” and its cross-claim was dismissed with prejudice. Bd. of Dirs. of the Lesner Pointe Condo. on the Chesapeake Bay Ass'n v. Harbour Point Bldg. Corp., 2002 Va. Cir. LEXIS 421 (Virginia Beach Oct. 25, 2002).

    That a party complied with subsection C of § 8.01-329 by serving another defendant by serving the Secretary of the Commonwealth did not abrogate its duty of due diligence in serving the complaint within one year, where the Secretary’s office had no record that the party followed the correct procedures to effectuate service. Lesner Pointe Condo. Ass'n v. Harbour Point Bldg. Corp., 61 Va. Cir. 609, 2002 Va. Cir. LEXIS 424 (Virginia Beach Apr. 10, 2002).

    Demurrer granted. —

    Defendants’ demurrer was granted to plaintiff’s breach of contract claim because the rules and regulations handbook of a condominium unit owners’ association was not a contract between any of the parties since plaintiff did not plead facts to show the elements of contract formation; even if the handbook was a contract, there was no evidence defendants were parties to the contract. Reid v. Meisenzahl, 95 Va. Cir. 188, 2017 Va. Cir. LEXIS 29 (Roanoke Feb. 14, 2017).

    Defendants’ demurrer was granted to plaintiff’s nuisance action because plaintiff failed to state a cause of action for private nuisance; plaintiff failed to plead facts in the complaint showing that defendants used, owned, or had control of the condominium property. Reid v. Meisenzahl, 95 Va. Cir. 188, 2017 Va. Cir. LEXIS 29 (Roanoke Feb. 14, 2017).

    Defendants’ demurrer was granted to a cross claim seeking indemnity because the cross claimant sought the remedy of shifting all responsibility for any damages to defendants; the cross claimant did not plead any contractual indemnity provision, nor did it pleadd any facts that defendants were without personal fault but nonetheless legally responsible. Reid v. Meisenzahl, 95 Va. Cir. 188, 2017 Va. Cir. LEXIS 29 (Roanoke Feb. 14, 2017).

    Demurrer denied. —

    Defendants’ demurrer was denied to plaintiff’s nuisance cause of action because plaintiff pleaded sufficient facts to state a cause of action for private nuisance, putting them on notice of the claims against them; plaintiff alleged that defendants had been using their property in a manner injurious to plaintiff by continuously interfering with the enjoyment of her property and by causing a material disturbance or annoyance to her occupation of the property. Reid v. Meisenzahl, 95 Va. Cir. 188, 2017 Va. Cir. LEXIS 29 (Roanoke Feb. 14, 2017).

    § 8.01-275.1. When service of process is timely.

    Service of process in an action or suit within twelve months of commencement of the action or suit against a defendant shall be timely as to that defendant. Service of process on a defendant more than twelve months after the suit or action was commenced shall be timely upon a finding by the court that the plaintiff exercised due diligence to have timely service made on the defendant.

    History. 1994, c. 519.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    CASE NOTES

    No variance between rule and statute. —

    There is no variance between former Rule 3:3 and this section in that both of these provisions seek to promote a policy of timely prosecution of law suits and to avoid abuse of the judicial system; the statute, but not the rule, defines timely service as one year while the rule implies that timely service means service within one year. Both the rule and the statute allow a plaintiff to establish the exercise of due diligence to perfect service within the one year period. Waterman v. Halverson, 261 Va. 203 , 540 S.E.2d 867, 2001 Va. LEXIS 18 (2001).

    Rule permitting nonsuit prior to service not nullified or invalidated. —

    There is no basis to conclude that the enactment of this section nullified or invalidated the cases construing former Rule 3:3 and holding that the failure to comply with the one-year service provision of the rule does not preclude a trial court from granting a plaintiff’s motion for nonsuit and that the refiled action is entitled to the tolling provisions of subdivision E 3 of § 8.01-229 . Waterman v. Halverson, 261 Va. 203 , 540 S.E.2d 867, 2001 Va. LEXIS 18 (2001).

    Saving provision applicable. —

    The court erred in holding that no judgment could be entered in favor of appellants because Rule 3:3 [see now § 8.01-275.1 ] effectively “fixes” the 365th day after commencement of the action as the “last day” for the motion for judgment “to be served [or] delivered,” thereby subjecting the one-year period of Rule 3:3 to the saving provision in former § 1-13.3:1 [now § 1-210]; therefore, since the 365th day was a Saturday, former § 1-13.3:1 extended the date for service to be completed until the next day that was not a Saturday, Sunday, or legal holiday. Frey v. Jefferson Homebuilders, Inc., 251 Va. 375 , 467 S.E.2d 788, 1996 Va. LEXIS 26 (1996).

    Court overruled appellee corporation’s motion to dismiss because the argument that former § 1-13.3:1 [now § 1-210] is inapplicable because former Rule 3:3 [see now § 8.01-275.1 ] neither establishes a “last day” to serve process on a defendant, nor invalidates the service of process in this case, but merely prohibits the court from entering judgment for a plaintiff who fails to serve process within a year after his action is commenced, results in the absurd construction “validating a delayed service but effectively nullifying that service.” Frey v. Jefferson Homebuilders, Inc., 251 Va. 375 , 467 S.E.2d 788, 1996 Va. LEXIS 26 (1996).

    Service untimely. —

    Employee’s nonsuit, and its subsequent vacatur, did not change the service of process requirement set forth under §§ 8.01-275.1 and 8.01-335 ; the twelve-month period for service ended on August 15, 2012, but the employee did not serve process until August 31, 2012, and her service of process was therefore untimely under Virginia law. Rice v. Alpha Sec., Inc., 556 Fed. Appx. 257, 2014 U.S. App. LEXIS 3483 (4th Cir. 2014).

    Nonsuit proper. —

    Trial court properly granted a nonsuit to a plaintiff in a second cause of action where the plaintiff in the first cause of action and the substituting plaintiff in the second cause of action were not suing in the same right. Entry of the nonsuit nunc pro tunc, however, was an error that required a remand to the trial court. Brake v. Payne, 268 Va. 92 , 597 S.E.2d 59, 2004 Va. LEXIS 101 (2004).

    Dismissal proper. —

    Dismissal of the patient’s medical malpractice complaint was proper, because the patient failed to obtain service of process on the doctor within 12 months of filing the complaint due to a failure to satisfy the requirement of § 8.01-20.1 ; the patient was not without a procedural remedy but could have taken a nonsuit as a matter of right and refiled the complaint. Bowman v. Concepcion, 283 Va. 552 , 722 S.E.2d 260, 2012 Va. LEXIS 38 (2012).

    CIRCUIT COURT OPINIONS

    In determining whether due diligence was shown in an attempt to effect service of process on a defendant, who was not served within one year of the date an action was filed, due diligence was distinguished from good cause, and due diligence did not account for other events occurring in a party’s life which would impact his or her ability to have service of process timely effected. Lawson v. Roth, 62 Va. Cir. 175, 2003 Va. Cir. LEXIS 90 (Roanoke June 18, 2003).

    Determination of due diligence. —

    Where a due diligence requirement concerned effecting timely service on defendant, not dealing with defendant or her representative as to filing responsive pleadings, it was irrelevant that plaintiff had not requested a default judgment, that plaintiff might have located defendant, that defendant might have received a copy of a motion for judgment (as opposed to receiving process), that defendant’s insurer sought an extension to file responsive pleadings, or that plaintiff agreed to it. Hernandez v. Awld, 73 Va. Cir. 497, 2007 Va. Cir. LEXIS 217 (Loudoun County Aug. 7, 2007).

    Service untimely. —

    Plaintiff did not achieve service upon defendant within 12 months as required by § 8.01-275.1 or Va. Sup. Ct. R. 3:5 because defendant’s last known address was not the usual abode where posted service was effected; defendant moved from the defendant’s last known address by the time plaintiff refiled the plaintiff’s personal injury action against the defendant. Johnston v. Robinson, 75 Va. Cir. 137, 2008 Va. Cir. LEXIS 92 (Amherst County Mar. 27, 2008).

    Sanctions awarded where case certified as mature when service was not obtained. —

    Attorney was ordered to pay a company $500 and to complete a professionalism course where: (1) he certified that a case was matured for trial on its merits, when no process had been issued nor service obtained; (2) more than one year had elapsed since the suit was filed and there was no evidence that the attorney had made any effort to effect service of process upon the company; (3) he had not made any effort, before signing and filing the praecipe, to ascertain whether it was grounded in fact; (4) he had not made any effort to ascertain whether he was suing the proper defendant; and (5) he had not done any research to determine whether, since the original suit was still on the docket, the declaratory judgment suit was well grounded in fact and warranted by existing law. Bevil v. Rawlings Co., 70 Va. Cir. 3, 2005 Va. Cir. LEXIS 280 (Roanoke Apr. 6, 2005).

    Inapplicable to style of certiorari petition. —

    Petitioner’s failure to serve the board of supervisors with a petition for a writ of certiorari did not constitute grounds for dismissal for failure to name a necessary party because, while the failure to serve the board with the petition might implicate the service statutes, it did not require the petitioner to name the board of supervisors in the style of the case, the petitioner used the exact statutory language in his petition. In re Decision of Bd. of Zoning Appeals, 88 Va. Cir. 114, 2014 Va. Cir. LEXIS 11 (Fairfax County Mar. 25, 2014).

    Nonsuit not permitted. —

    Injured party was not entitled to nonsuit an action under § 8.01-380 and Sup. Ct. R. 3:3 [see now Rule 3:5] against defendant doctor, who filed a defense and cross-claim against cross-defendant doctor, because defendant doctor was served with process, and was entitled to raise defect in service in a motion to dismiss under § 8.01-277 , and because the cross-claim could not be adjudicated independently. Doulgerakis v. Cooper, 57 Va. Cir. 326, 2002 Va. Cir. LEXIS 211 (Newport News Jan. 31, 2002).

    Court granted defendants’ motion to dismiss under § 8.01-275.1 on grounds they had not been served within one year, because plaintiffs’ motion for nonsuit under § 8.01-380 was barred, inasmuch as defendants’ counterclaims were incapable of independent adjudication. Parsch v. Massey, 71 Va. Cir. 209, 2006 Va. Cir. LEXIS 249 (Charlottesville June 28, 2006).

    Due diligence not found. —

    Plaintiff was not entitled to a default judgment under Va. Sup. Ct. R. 3:19(a) and 3:8(a) as plaintiff had not exercised due diligence as required by § 8.01-275.1 and Va. Sup. Ct. R. 3:5(e) to allow service of process more than one year after the filing of the suit since: (1) plaintiff used an address that had been determined to be a vacant building in a prior suit to attempt service; (2) plaintiff did not attempt personal service of process at the address provided on the accident information exchange form and the accident report; and (3) plaintiff’s first use of the address on the accident information exchange form and the accident report was when plaintiff sought service through the Secretary of the Commonwealth of Virginia under subsection B of § 8.01-329 . Shears v. Slade, 73 Va. Cir. 20, 2006 Va. Cir. LEXIS 298 (Newport News Oct. 30, 2006).

    Defendant’s receipt of plaintiff’s documents from defendant’s house-sitter on July 5, 2007, did not cure the defective service, which involved a process server handing the documents to defendant’s house-sitter, because plaintiff’s motion for judgment was filed on June 30, 2006; the receipt occurred after the one-year period under § 8.01-275.1 elapsed on July 2, 2007; and plaintiff did not exercise due diligence when the plaintiff made no further effort to properly serve defendant. Jamerson v. Laub, 74 Va. Cir. 347, 2007 Va. Cir. LEXIS 300 (Rockbridge County Nov. 8, 2007).

    Plaintiff did not achieve service upon defendant within 12 months as required by § 8.01-275.1 or Va. Sup. Ct. R. 3:5 because defendant’s last known address was not the usual abode where posted service was effected, and plaintiff did not exercise due diligence to obtain service within one year; defendant testified that the defendant had moved from the defendant’s last known address by the time plaintiff refiled plaintiff’s suit, and plaintiff merely attempted to serve defendant at the same address when the case was refiled and made no further effort to locate defendant. Johnston v. Robinson, 75 Va. Cir. 137, 2008 Va. Cir. LEXIS 92 (Amherst County Mar. 27, 2008).

    Dismissal where due diligence not found. —

    Where injured party did not use due diligence in attempting to serve defendant doctor, who was not served until 14 months after the injured party’s motion for judgment, doctor’s motion to dismiss would be granted; doctor’s filing of motion to dismiss simultaneously with filing grounds of defense and cross-claim did not waive her right to assert § 8.01-275.1 .Doulgerakis v. Cooper, 57 Va. Cir. 326, 2002 Va. Cir. LEXIS 211 (Newport News Jan. 31, 2002).

    In a medical malpractice action, two defendants were not immediately served because the patient thought she might require their support in a related personal injury action, but the patient’s counsel did not believe he could have them served with process absent his client’s consent, so they were not served until the patient contacted her counsel after her whereabouts were unknown for a significant amount of time, and they were not served within one year after the action was filed, and the patient could not show she had exercised due diligence trying to effect service of process on them, so the matter was dismissed with prejudice as to those defendants. Lawson v. Roth, 62 Va. Cir. 175, 2003 Va. Cir. LEXIS 90 (Roanoke June 18, 2003).

    Service was void because plaintiff did not post substituted service at defendant’s “usual place of abode” as required by § 8.01-296 ; the cure statute, § 8.01-288 , was unavailing because defendant did not actually receive the process until over one year after plaintiff filed her motion for judgment, and plaintiff failed to show she used due diligence in attempting to obtain service. Drewry v. Nottingham, 64 Va. Cir. 269, 2004 Va. Cir. LEXIS 182 (Norfolk Mar. 22, 2004).

    Insurer’s motion to dismiss an injured party’s personal injury suit against an insured, which was filed by special appearance on behalf of the insured, was granted under § 8.01-275.1 and former Va. Sup. Ct. R. 3:3 (now Rule 3:5), because: (1) the injured party was advised that she had to obtain service upon the insured at a scheduling conference; (2) at that scheduling conference an order was entered, endorsed by the injured party, continuing the scheduling conference to allow the injured party time to serve the insured; and (3) to date, the injured party still had not obtained service upon the insured and failed to exercise due diligence in affecting such service. Flagler v. Liberty Mut. Ins. Co., 73 Va. Cir. 61, 2007 Va. Cir. LEXIS 34 (Fairfax County Mar. 9, 2007).

    In a motion for a second nonsuit, the circuit court did not exercise its discretion to allow an extension of a one-year period to effectuate service on a defendant where plaintiff did not use due diligence in attempting to effect timely service on defendant; one defective attempt at service was not the due diligence required, and dismissal was appropriate. Hernandez v. Awld, 73 Va. Cir. 497, 2007 Va. Cir. LEXIS 217 (Loudoun County Aug. 7, 2007).

    In a medical malpractice case, a patient did not serve a doctor within 1 year after filing his suit, and this failure did not occur after a duly diligent attempt; therefore, service of process was defective, and the claim was dismissed with prejudice. The sufficiency of the method of service, along with the fact that the summons and complaint actually reached the doctor, was irrelevant because it did not reach him in the time prescribed by law. Branch v. Augusta Health Care, Inc., 92 Va. Cir. 126, 2015 Va. Cir. LEXIS 206 (Augusta County Aug. 21, 2015).

    Case not dismissed. —

    Case would not be dismissed for failure to serve defendant until more than 15 months after the action was commenced, where plaintiff had attempted to have defendant served within the one-year period, and that service was quashed because defendant no longer lived with his mother, where service was made, as plaintiff had reason to believe that defendant’s usual place of abode continued to be at his mother’s residence, and due diligence was shown. Palum v. Quinn, 59 Va. Cir. 35, 2002 Va. Cir. LEXIS 119 (Loudoun County Mar. 18, 2002).

    Judge determined that an accident victim exercised due diligence in the service of process, and therefore granted the victim an extension of time pursuant to § 8.01-277 . Goldstein v. Bourgad, 68 Va. Cir. 132, 2005 Va. Cir. LEXIS 122 (Fairfax County June 7, 2005).

    Underinsured motorist insurer’s plea in bar seeking dismissal of a personal injury complaint was overruled where process was served on the insured, the named defendant, within 12 months of the commencement of the action, as required by § 8.01-275.1 and Va. Sup. Ct. R. 3:5(e), and service upon the insurer in accordance with subsection F of § 38.2-2206 did not make it a party defendant to the action. Jones v. Goldsborough, 94 Va. Cir. 527, 2016 Va. Cir. LEXIS 189 (Chesapeake Dec. 2, 2016).

    § 8.01-276. Demurrer to evidence and plea in abatement abolished; motion to strike evidence and written motion, respectively, to be used in lieu thereof.

    Demurrers to the evidence and pleas in abatement are hereby abolished.

    Any matter that heretofore could be reached by a demurrer to the evidence may hereafter be subject to a motion to strike the evidence.

    Any defense heretofore required or permitted to be made by plea in abatement may be made by written motion stating specifically the relief demanded and the grounds therefor. Except when the ground of such motion is the lack of the court’s jurisdiction over the person of an indispensable party, or of the subject matter of the litigation, such motion shall be made within the time prescribed by Rules of the Supreme Court.

    If the motion challenges the venue of the action, the movant shall state therein why venue is improperly laid and what place or places within the Commonwealth would constitute proper venue for the action.

    History. 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-276 abolishes the obsolete demurrer to the evidence of former § 8-140 and, in its place, recognizes the more common motion to strike the evidence, Virginia’s analogue to the federal motion for a directed verdict.

    The section also abolishes pleas in abatement; instead, a written motion stating specifically the relief demanded and the grounds therefor is required. Former §§ 8-98 and 8-133 have been deleted accordingly.

    Cross references.

    As to when plaintiff may take a nonsuit, see § 8.01-380 .

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 2, 3, 13, 15, 19, 20, 21, 22, 24, 25.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    When motion to strike granted. —

    When the sufficiency of a plaintiff’s evidence is challenged by a motion to strike, the trial court should grant the motion only when it conclusively appears that the plaintiff has proved no cause of action against the defendant, or when it plainly appears that the trial court would be compelled to set aside any verdict found for the plaintiff as being without evidence to support it. Newton v. Veney, 220 Va. 947 , 265 S.E.2d 707, 1980 Va. LEXIS 189 (1980).

    Doubts as to sufficiency of evidence resolved in plaintiff’s favor. —

    When the sufficiency of a plaintiff’s evidence is challenged by a motion to strike, the trial court should resolve any reasonable doubts as to the sufficiency of the evidence in plaintiff’s favor. Newton v. Veney, 220 Va. 947 , 265 S.E.2d 707, 1980 Va. LEXIS 189 (1980).

    Since it may obviate delay and expense of new trial. —

    When the sufficiency of a plaintiff’s evidence is challenged by a motion to strike, the trial court should resolve any reasonable doubt as to the sufficiency of the evidence in plaintiff’s favor; this is so because when a judgment based on a granted motion is reversed on appeal, a new trial must be conducted, but, when a plaintiff’s verdict follows a denied motion, whether the verdict is set aside or confirmed by judgment below, the appellate court may enter final judgment thereby obviating the delay and expense of a new trial. Trail v. White, 221 Va. 932 , 275 S.E.2d 617, 1981 Va. LEXIS 230 (1981).

    Demurrer sustained. —

    Circuit court correctly interpreted the Workout Agreement to preclude breach of contract claim and correctly held that the fraud claims failed because appellant had not alleged any justifiable reliance on the alleged misrepresentation. Sweely Holdings, LLC v. R SunTrust Bank, 296 Va. 367 , 820 S.E.2d 596, 2018 Va. LEXIS 169 (2018).

    II.Decisions Under Prior Law.

    Editor’s note.

    The object of this section in requiring the grounds of a demurrer to the evidence (now motion to strike) to be stated in writing was at least twofold: First, to require the demurrant (now movant) to give notice in writing of the grounds or causes of demurrer (now motion) which he intended to rely on, and, second, to prevent him from assigning grounds of demurrer (now motion) in the appellate court wholly different from those relied on in the trial court. McMenamin v. Southern Ry., 115 Va. 822 , 80 S.E. 596 , 1914 Va. LEXIS 136 (1914); Black v. Daughtry, 130 Va. 24 , 107 S.E. 694 , 1921 Va. LEXIS 139 (1921).

    Practice of subsequently reducing to writing not prejudicial. —

    It is common practice among lawyers, upon the announcement of a demurrer to the evidence (now motion to strike), to agree that it may be subsequently reduced to writing. And it is not perceived that plaintiff was prejudiced by that irregularity in that respect in this instance, especially as defendant’s counsel duly delivered the grounds of demurrer (now motion) in writing to counsel for the plaintiff and to the court. Cooper v. Norfolk S.R.R., 125 Va. 73 , 99 S.E. 606 , 1919 Va. LEXIS 7 (1919).

    How evidence considered on motion. —

    On a demurrer to the evidence (now motion to strike), the court is bound to consider all evidence of the demurrant (now movant) in conflict with that of the demurree (now movee) as withdrawn, the credibility of the latter’s witnesses admitted, and all facts admitted which the demurree’s (now movee’s) evidence, thus considered, proved or conduced to prove, or which might reasonably be inferred from his whole evidence, direct and circumstantial. Newberry v. Watts, 116 Va. 730 , 82 S.E. 703 , 1914 Va. LEXIS 83 (1914).

    Refusal to allow amendment of grounds of motion not prejudicial. —

    The refusal to permit a demurrant to the evidence (now movant) to amend his grounds of demurrer (now motion) after a verbal joinder in the demurrer (now motion) has been announced by the demurree (now movee) is not prejudicial to the demurrant (now movant) where, under the grounds already assigned he has the right to rely upon, and does in fact argue the same point proposed to be made and relied on by the amendment. Virginia Iron & Coke Co. v. Munsey, 110 Va. 156 , 65 S.E. 478 , 1909 Va. LEXIS 129 (1909).

    CIRCUIT COURT OPINIONS

    Motion to strike denied. —

    Plaintiff’s motion to strike, pursuant to § 8.01-276 , a doctor’s testimony on grounds that the testimony constituted an improper attempt to introduce the opinions of two other doctors was denied; § 8.01-401.1 permitted an expert witness to render an opinion that was based on data that might not be admissible in evidence, and the doctor repeatedly stated that he neither consulted nor relied upon the reports of the other two doctors, and defendant did not attempt to argue substantively the contents of the other doctors’ reports. Young v. Waddell, 60 Va. Cir. 264, 2002 Va. Cir. LEXIS 417 (Danville Oct. 24, 2002).

    § 8.01-277. Defective process; motion to quash; untimely service; motion to dismiss.

    1. A person, upon whom process to answer any action has been served, may take advantage of any defect in the issuance, service or return thereof by a motion to quash filed prior to or simultaneously with the filing of any pleading to the merits. Upon sustaining the motion, the court may strike the proof of service or permit amendment of the process or its return as may seem just.
    2. A person, upon whom process has not been served within one year of commencement of the action against him, may make a special appearance, which does not constitute a general appearance, to file a motion to dismiss. Upon finding that the plaintiff did not exercise due diligence to have timely service and sustaining the motion to dismiss, the court shall dismiss the action with prejudice. Upon finding that the plaintiff did exercise due diligence to have timely service and denying the motion to dismiss, the court shall require the person filing such motion to file a responsive pleading within 21 days of such ruling. Nothing herein shall prevent the plaintiff from filing a nonsuit under § 8.01-380 before the entry of an order granting a motion to dismiss pursuant to the provisions of this section. Nothing in this subsection shall pertain to cases involving asbestos.

    History. Code 1950, § 8-118; 1954, c. 333; 1977, c. 617; 1994, c. 37; 2006, c. 151.

    REVISERS’ NOTE

    Former § 8-118 required that the pleaders use a plea in abatement when the process was defective and amendable and a motion to quash when the process was invalid and thus not amendable. Section 8.01-277 adopts the motion to quash as the one form of motion to bring process questions before the court. The court will then decide either that the error in process or the return is curable by amendment and permit correction or that the error is not curable and that the action should therefore be dismissed.

    Cross references.

    As to service on counsel of copies of pleadings and requests for subpoenas duces tecum, see Rule 1:12.

    As to return of certain writs, see Rule 3:3.

    As to summons and proof of service thereof, see Rule 3:5.

    The 2006 amendments.

    The 2006 amendment by c. 151 added the A designation at the beginning of the first paragraph and added subsection B.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For essay, “Nonsuit in Virginia Civil Trials,” see 48 U. Rich. L. Rev. 265 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 13, 15.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Statute inapplicable where process never served. —

    By its express terms, this statute applies only where process has actually been served on the defendant; it does not permit a defendant to simultaneously make a voluntary general appearance and assert the bar provided by rule because he was not served with process. Gilpin v. Joyce, 257 Va. 579 , 515 S.E.2d 124, 1999 Va. LEXIS 54 (1999); Brown v. Burch, 30 Va. App. 670, 519 S.E.2d 403, 1999 Va. App. LEXIS 551 (1999) (decided prior to 2006 amendments).

    General appearance waived service issues. —

    Because a general appearance waived all questions concerning service of process, the judgment of the trial court which granted a motion to dismiss under Va. Sup. Ct. R. 3:5(e) [see now Rule 3:8] was reversed. Under § 8.01-277 , the individual, a defendant in a personal injury case, had to assert any defect in service by a motion filed prior to or simultaneously with filing any pleading to the merits. Lyren v. Ohr, 271 Va. 155 , 623 S.E.2d 883, 2006 Va. LEXIS 13 (2006) (decided prior to 2006 amendments).

    Service untimely. —

    Employee’s nonsuit, and its subsequent vacatur, did not change the service of process requirement set forth under §§ 8.01-275.1 and 8.01-335 ; the twelve-month period for service ended on August 15, 2012, but the employee did not serve process until August 31, 2012, and her service of process was therefore untimely under Virginia law. Rice v. Alpha Sec., Inc., 556 Fed. Appx. 257, 2014 U.S. App. LEXIS 3483 (4th Cir. 2014).

    Standing. —

    Defendant did not have standing to raise an objection to the method and place of service of a subpoena duces tecum on defendant’s cell phone service provider because standing to do so rested solely with the cell phone service provider. Furthermore, the cell phone service provider never objected to the method of service of the subpoena duces tecum and in fact requested service by facsimile at its New Jersey offices. Reed v. Commonwealth, 2016 Va. App. LEXIS 233 (Va. Ct. App. Aug. 30, 2016).

    II.Decisions Under Prior Law.

    Editor’s note.

    A motion to quash process is not like a former plea in abatement but simply an informal method to raise a question, which ordinarily could have been raised by a plea in abatement. Eure v. Morgan Jones & Co., 195 Va. 678 , 79 S.E.2d 862, 1954 Va. LEXIS 147 (1954).

    Objection to improperly executed process. —

    Where the service of process on a defendant is invalid, because it was not legally executed, objection thereto may be made informally by motion, or in case of nonappearance of the defendant, the court will itself raise the objection, if observed, and no formal plea is required. Commonwealth ex rel. Duvall v. Hall, 194 Va. 914 , 76 S.E.2d 208, 1953 Va. LEXIS 158 (1953).

    Courts are liberal in allowing officers to amend their returns, according to the truth, when a casual and honest mistake has occurred. Amendments may be allowed, even to take away a cause of action on the original return, and though the officer has gone out of office, or is dead. Stotz v. Collins & Co., 83 Va. 423 , 2 S.E. 737 , 1887 Va. LEXIS 87 (1887); Shenandoah V.R.R. v. Ashby's Trustees, 86 Va. 232 , 9 S.E. 1003 , 1889 Va. LEXIS 30 (1889).

    But allowance not ground for continuance. —

    The allowance of an amendment to the sheriff’s return on a writ of summons is not ground for a continuance, though before the amendment, there was nothing to show a valid service of the writ, especially, where the case had been previously set for trial by consent. Atlantic & D.R.R. v. Peake, 87 Va. 130 , 12 S.E. 348 , 1890 Va. LEXIS 102 (1890).

    When sheriff may amend return. —

    A sheriff may be allowed to amend his return after judgment by default, so as to show proper service. Commercial Union Assurance Co. v. Everhart's Adm'r, 88 Va. 952 , 14 S.E. 836 , 1892 Va. LEXIS 55 (1892).

    Amendments may be allowed after action commenced against sheriff and sureties, but not after judgment. Wardsworth v. Miller, 45 Va. (4 Gratt.) 99, 1847 Va. LEXIS 28 (1847); Carr v. Meade, 77 Va. 142 , 1883 Va. LEXIS 45 (1883).

    Amendments have been allowed after lapses of seven or thirteen years. Rucker v. Harrison, 20 Va. (6 Munf) 181, 1818 Va. LEXIS 35 (1818); Shenandoah V.R.R. v. Ashby's Trustees, 86 Va. 232 , 9 S.E. 1003 , 1889 Va. LEXIS 30 (1889).

    Amendments in federal courts. —

    Returns of substituted service which are defective may be amended in the federal court, and the decisions of the State court are not binding as to such amendment. King v. Davis, 137 F. 198, 1903 U.S. App. LEXIS 5453 (C.C.D. Va. 1903).

    No amendment without notice. —

    Where a return of substituted service is fatally defective, and the court has not otherwise acquired jurisdiction of the defendant, application to amend the return will not be granted without notice. King v. Davis, 137 F. 198, 1903 U.S. App. LEXIS 5453 (C.C.D. Va. 1903).

    CIRCUIT COURT OPINIONS

    General appearance found. —

    Neither Va. Sup. Ct. R. 3:3 [see now Rule 3:5] nor § 8.01-277 allowed an engineering firm to file a demurrer, a special plea of the statute of limitations, an objection of venue, a motion to drop, a motion for a bill of particulars, a motion craving oyer, and a removal petition, participation in depositions, and provision of expert assistance to another defendant in the case, without making a general appearance and waiving any challenge to the personal jurisdiction of the trial court; § 8.01-277 was to be strictly construed and provided for challenges to defects in process. City of Portsmouth v. Buro Happold Consulting Eng'rs, 69 Va. Cir. 397, 2005 Va. Cir. LEXIS 255 (Portsmouth Dec. 22, 2005).

    Simultaneous pleading. —

    This section clearly provides for a challenge to defects in process but does not permit a defendant to simultaneously make a general appearance; stated another way, § 8.01-277 allows simultaneous pleading only when a challenge is made to a technical defect in the service—for example service on a corporate representative not authorized by statute. This interpretation is reinforced by the last sentence of the statute [now the last sentence of subsection A], which provides that the court may strike the proof of service or permit amendment of the process or its return as may seem just. City of Portsmouth v. Buro Happold Consulting Eng'rs, 69 Va. Cir. 397, 2005 Va. Cir. LEXIS 255 (Portsmouth Dec. 22, 2005).

    Filing subpoena waived objections to personal jurisdiction. —

    Publisher’s motion to dismiss a defamation case based on lack of personal jurisdiction was denied because, before filing that motion, the publisher’s attorney filed an attorney-issued subpoena duces tecum, which took advantage of the court’s power, which did not question jurisdiction, and which, therefore, was not a special appearance under § 8.01-277 ; by filing the subpoena, the publisher waived objections to personal jurisdiction and subjected itself to the jurisdiction of the court. Marsinko v. Burwell, 2008 Va. Cir. LEXIS 125 (Roanoke County Oct. 1, 2008).

    Answer to counterclaim waived timeliness issues. —

    Where plaintiffs sought a nonsuit under § 8.01-380 against defendants who filed counterclaims, by answering the counterclaims without objecting to their untimeliness, plaintiffs waived their ability to do so. Parsch v. Massey, 71 Va. Cir. 209, 2006 Va. Cir. LEXIS 249 (Charlottesville June 28, 2006).

    Amended motion for judgment to correct a misnomer. —

    In a medical negligence suit against state employees, in which a nurse’s name was misspelled in an original motion for judgment in the style of the case, but not in the body of the motion, resulting in an amended motion for judgment being filed after the statute of limitations expired, a nurse’s plea in bar asserting that the matter was barred by the statute of limitations was not sustained under Va. Sup. Ct. R. 3:5 or this section because the amended motion for judgment only corrected a misnomer and did not change or add a party. Marsh v. Medical College of Va. Hosps. Aux. of Va. Commonwealth Health Sys., 71 Va. Cir. 404, 2006 Va. Cir. LEXIS 225 (Richmond Sept. 11, 2006).

    Failure to satisfy burden as to defective process. —

    In a medical negligence suit against state employees, in which a nurse claimed she was not served with the original motion for judgment and had no notice until the statute of limitations expired, the nurse did not meet her burden, under § 8.01-277 to show that there was a defect in the service of process, so her motion to quash service under that provision could not be sustained. Marsh v. Medical College of Va. Hosps. Aux. of Va. Commonwealth Health Sys., 71 Va. Cir. 404, 2006 Va. Cir. LEXIS 225 (Richmond Sept. 11, 2006).

    Failure to exercise due diligence. —

    Second defendant was dismissed from a personal injury action under subsection B of § 8.01-277 for failure to serve process within one year of the action’s commencement because plaintiff made no effort to determine if second defendant had moved after September 16, 2005, and service by posting at a prior address on September 16, 2006, was not at second defendant’s usual place of abode and, thus, was ineffective under subdivision 2 of § 8.01-296 . Nichols v. Moss, 73 Va. Cir. 259, 2007 Va. Cir. LEXIS 71 (Norfolk Apr. 11, 2007).

    Plaintiff not entitled to quash service of process. —

    Denial of a former patient’s request to quash service of process on the health care providers, in an action in which the patient alleged that the health care providers did not perform the surgical procedure that the patient requested, was appropriate as the patient, who was proceeding in forma pauperis, did not formally request that the health care providers not be served until after they were served and had filed a demurrer. Rundle v. Carter, 91 Va. Cir. 177, 2015 Va. Cir. LEXIS 171 (Norfolk Sept. 17, 2015).

    Inapplicable to style of certiorari petition. —

    Petitioner’s failure to serve the board of supervisors with a petition for a writ of certiorari did not constitute grounds for dismissal for failure to name a necessary party because, while the failure to serve the board with the petition might implicate the service statutes, it did not require the petitioner to name the board of supervisors in the style of the case, the petitioner used the exact statutory language in his petition. In re Decision of Bd. of Zoning Appeals, 88 Va. Cir. 114, 2014 Va. Cir. LEXIS 11 (Fairfax County Mar. 25, 2014).

    Nonsuit not permitted. —

    Injured party was not entitled to nonsuit an action under § 8.01-380 and Sup. Ct. R. 3:3 [see now Rule 3:5] against defendant doctor, who filed a defense and cross-claim against cross-defendant doctor, because defendant doctor was served with process, and was entitled to raise defect in service in a motion to dismiss under § 8.01-277 , and because the cross-claim could not be independently adjudicated. Doulgerakis v. Cooper, 57 Va. Cir. 326, 2002 Va. Cir. LEXIS 211 (Newport News Jan. 31, 2002).

    Timeliness of motion to dismiss. —

    Chinese drywall manufacturer’s motion to dismiss for a management company’s failure to effect service within one year should have been made before a default judgment was entered. Because judgment had already been entered against the manufacturer, relief was available only under § 8.01-428 , which provided authority to set aside default judgments in cases wherein defendants were not served with process. Dragas Mgmt. Corp. v. Taishan Gypsum Co., 90 Va. Cir. 331, 2015 Va. Cir. LEXIS 73 (Norfolk June 16, 2015).

    Case not dismissed. —

    Judge determined that an accident victim exercised due diligence under Va. Sup. Ct. R. 3:3 [see now Rule 3:5] and § 8.01-275.1 in the service of process, and therefore granted the victim an extension of time. Goldstein v. Bourgad, 68 Va. Cir. 132, 2005 Va. Cir. LEXIS 122 (Fairfax County June 7, 2005).

    Any objection to the service of process was waived by a general appearance because a landowner did not file a motion to quash. Atl. Coast Pipeline, LLC v. Avery, 92 Va. Cir. 387, 2016 Va. Cir. LEXIS 73 (Nelson County May 9, 2016), aff'd, 295 Va. 522 , 815 S.E.2d 783, 2018 Va. LEXIS 91 (2018).

    § 8.01-277.1. Objections to personal jurisdiction or defective process; what constitutes waiver.

    1. Except as provided in § 8.01-277 , a person waives any objection to personal jurisdiction or defective process if he engages in conduct related to adjudicating the merits of the case, including, but not limited to:
      1. Filing a demurrer, plea in bar, answer, counterclaim, cross-claim, or third-party claim;
      2. Conducting discovery, except as provided in subsection B;
      3. Seeking a ruling on the merits of the case; or
      4. Actively participating in proceedings related to determining the merits of the case.
    2. A person does not waive any objection to personal jurisdiction or defective process if he engages in conduct unrelated to adjudicating the merits of the case, including, but not limited to:
      1. Requesting or agreeing to an extension of time;
      2. Agreeing to a scheduling order;
      3. Conducting discovery authorized by the court related to adjudicating the objection;
      4. Observing or attending proceedings in the case;
      5. Filing a motion to transfer venue pursuant to § 8.01-264 when such motion is filed contemporaneously with the objection; or
      6. Removing the case to federal court.

    History. 2011, c. 710.

    CIRCUIT COURT OPINIONS

    General appearance not found. —

    Newspaper publication companies did not enter a general appearance by filing objections to an order regarding the complainant’s motion for leave to amend complaint because the objections were not on the merits; the objections came after the court rendered its decision on the motion for reconsideration; the companies never asked for a hearing, filed a substantive brief, or moved for a re-reconsideration; the objections themselves contained no detail or supporting facts or law; and the companies’ jurisdiction challenge preceded the objections. Mireskandari v. Daily Mail & Gen. Trust PLC, 105 Va. Cir. 370, 2020 Va. Cir. LEXIS 104 (Fairfax County July 27, 2020).

    § 8.01-278. When plea of infancy not allowed; liability of infants for debts as traders; liability of infants on loans to defray expenses of education.

    1. If any minor now transacting business or who may hereafter transact business as a trader fails to disclose (i) by a sign in letters easy to be read, kept conspicuously posted at the place wherein such business is transacted and (ii) also by a notice published for two weeks in a newspaper meeting the requirements of § 8.01-324 , the fact that he is a minor, all property, stock, and choses in action acquired or used in such business shall as to the creditors of any such person be liable for the debts of such person, and no plea of infancy shall be allowed.
    2. If any minor shall procure a loan upon the representation in writing that the proceeds thereof are to be expended by such minor to defray any or all expenses incurred by reason of attendance at an institution of higher education, which has been approved by any regional accrediting association which is approved by the United States Office of Education, or by reason of attendance at any school eligible for the guarantee of the State Education Assistance Authority, such minor shall be liable for the repayment thereof as though he were an adult, and no plea of infancy shall be allowed.

    History. Code 1950, §§ 8-135, 8-135.1; 1960, c. 78; 1970, c. 7; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-278 combines former §§ 8-135 and 8-135.1. In that minors under the age of sixteen are now attending institutions of higher education, the reference to age in former § 8-135.1 has been deleted. Otherwise, there is no change in substance.

    Michie’s Jurisprudence.

    For related discussion, see 9B M.J. Infants, § 4.

    § 8.01-279. When proof is unnecessary unless affidavit filed; handwriting; ownership; partnership or incorporation.

    1. Except as otherwise provided by § 8.3A-308 , when any pleading alleges that any person made, endorsed, assigned, or accepted any writing, no proof of the handwriting shall be required, unless it be denied by an affidavit accompanying the plea putting it in issue.
    2. When any pleading alleges that any person, partnership, corporation, or unincorporated association at a stated time, owned, operated, or controlled any property or instrumentality, no proof of the fact alleged shall be required unless an affidavit be filed with the pleading putting it in issue, denying specifically and with particularity that such property or instrumentality was, at the time alleged, so owned, operated, or controlled.
    3. When parties sue or are sued as partners, and their names are set forth in the pleading, or when parties sue or are sued as a corporation, it shall not be necessary to prove the fact of the partnership or incorporation unless with the pleading which puts the matter in issue there be filed an affidavit denying such partnership or incorporation.

    History. Code 1950, §§ 8-114 to 8-116; 1954, c. 333; 1958, c. 66; 1964, c. 219; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-279 combines former §§ 8-114 to 8-116 which dispense with the proof of certain facts alleged in pleadings unless the verity of such facts is put in issue by an affidavit. The only substantive change has been to expand subsection B (formerly § 8-115) to include partnerships and unincorporated associations.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assignments, § 44.

    CASE NOTES

    Analysis

    I.General Consideration.

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    II.Handwriting.

    The basis of statutes dispensing with proof of signature, in the absence of an affidavit denying the allegations of such, is that the failure of the defendant to establish, set up or assert his defense, in the manner prescribed by law, raises a presumption that the material facts alleged or pleaded are admitted to be true. Bova v. Roanoke Oil Co., 180 Va. 332 , 23 S.E.2d 347, 1942 Va. LEXIS 175 (1942).

    When subsection A applicable. —

    Subsection A only applies where the declaration alleges that the defendant, or the person stated to have made the writing, subscribed his name thereto. Kelley v. Paul, 44 Va. (3 Gratt.) 191, 1846 Va. LEXIS 41 (1846); Shepherd, Hunter & Co. v. Frys, 44 Va. (3 Gratt.) 442, 1847 Va. LEXIS 4 (1847).

    Subsection A does not apply to a transfer of paper by mere delivery. Clason v. Parrish, 93 Va. 24 , 24 S.E. 471 , 1896 Va. LEXIS 48 (1896).

    Subsection A applies to instruments signed with the name of the partnership. But the question is still open, whether the persons sought to be charged are members of the partnership. Shepherd, Hunter & Co. v. Frys, 44 Va. (3 Gratt.) 442, 1847 Va. LEXIS 4 (1847).

    The defenses contemplated by subsection A involve a denial of the making (the factum) of the writing, indorsement, assignment, acceptance or other writing by the person charged therewith, not of other facts in connection with rights of the holder to recover thereon. Holdsworth v. Anderson Drug Co., 118 Va. 359 , 87 S.E. 565 , 1916 Va. LEXIS 16 (1916).

    A plea under subsection A is equivalent to a plea of non est factum. Holdsworth v. Anderson Drug Co., 118 Va. 359 , 87 S.E. 565 , 1916 Va. LEXIS 16 (1916); Hillman v. Cornett, 137 Va. 200 , 119 S.E. 74 , 1923 Va. LEXIS 148 (1923).

    Answer under oath sufficient. —

    Subsection A was substantially complied with by the answer, under oath, filed in the cause, in which the genuineness of the alleged receipt was disputed, and its validity challenged, and the strictest proof of its genuineness called for. Harnsberger v. Cochran, 82 Va. 727 , 1 S.E. 120 , 1887 Va. LEXIS 138 (1887) (see also Piedmont Bank v. Hatcher, 94 Va. 229 , 26 S.E. 505 (1897)).

    Affidavit may be filed during trial at the discretion of the court. —

    In an action upon a note the court allowed the plaintiff during the trial to file an affidavit denying the signature of payee to a receipt for a part payment upon the note. Defendants had relied upon subsection A, and objected to any evidence denying the genuineness of the signature to the receipt. Their objection was properly sustained. Then, upon motion, the plaintiff was permitted to file an affidavit denying the genuineness of such signature, which was approved on appeal. Keister v. Philips, 124 Va. 585 , 98 S.E. 674 , 1919 Va. LEXIS 150 (1919).

    Photocopy of license agreement held properly admitted. —

    Where plaintiff questioned at trial the authenticity of the signatures on the license agreement and objected to the fact that the manager for defendant’s store who identified the agreement could not authenticate the signatures from personal knowledge, but did not comply with the statutory mandate, and moreover, in conjunction with its motion to dismiss, defendant submitted the affidavit of its manager identifying the document and verifying the signatures, the trial court properly admitted a photocopy of the license agreement. Carmody v. F.W. Woolworth Co., 234 Va. 198 , 361 S.E.2d 128, 4 Va. Law Rep. 793, 1987 Va. LEXIS 229 (1987).

    Objection to the evidence must be made in trial court. —

    A plaintiff in equity files with his bill, as the ground of his claim, an order on one of the defendants, which has not been accepted. No proof of the execution of the order is given, but its genuineness is not questioned in the court below, and it is made the basis of a decree in favor of the plaintiff. It is too late to make objection in the appellate court, to the want of proof of the order. James River & Kanawha Co. v. Littlejohn, 59 Va. (18 Gratt.) 53, 1867 Va. LEXIS 34 (1867).

    Bill dismissed upon default of proof. —

    Where the answer of the maker of a note denies that the payee indorsed it to the complainant as alleged in the latter’s bill, and the denial is supported by affidavit, as required by subsection A, the burden of proof is thrown upon the complainant to show such indorsement, and in default thereof his bill should be dismissed. Harnsberger v. Cochran, 82 Va. 727 , 1 S.E. 120 , 1887 Va. LEXIS 138 (1887); Piedmont Bank v. Hatcher, 94 Va. 229 , 26 S.E. 505 , 1897 Va. LEXIS 66 (1897); Hillman v. Cornett, 137 Va. 200 , 119 S.E. 74 , 1923 Va. LEXIS 148 (1923).

    Effect of failure to deny by affidavit. —

    When any writing whatsoever is relied on in a pleading, unless it is questioned by an affidavit or sworn pleading it cannot be questioned at all and the party relying on it will not be required to introduce any evidence at all to prove it. Chestnut v. Chestnut, 104 Va. 539 , 52 S.E. 348 , 1905 Va. LEXIS 131 (1905); Taylor v. Carter, 117 Va. 845 , 86 S.E. 120 , 1915 Va. LEXIS 103 (1915); Hillman v. Cornett, 137 Va. 200 , 119 S.E. 74 , 1923 Va. LEXIS 148 (1923).

    Where notice of motion for judgment alleged that contract was signed by defendant, and there was no affidavit denying such signature, proof thereof was not required. Bova v. Roanoke Oil Co., 180 Va. 332 , 23 S.E.2d 347, 1942 Va. LEXIS 175 (1942).

    In view of § 8.01-389 providing for the admission of foreign deeds in evidence, and this section, it was proper for the court to admit a deed of trust in evidence which was not filed with the answer, but was subsequently offered, where such deed was relied upon by the defendant in answer to an attachment and not denied by affidavit of plaintiff. F.D. Cummer & Son Co. v. R.M. Hudson Co., 141 Va. 271 , 127 S.E. 171 , 1925 Va. LEXIS 406 (1925).

    Title bond sufficient evidence of title where execution not denied. —

    Under this statute, prior to the 1919 revision, where an answer set up a title bond as a source of title and the bond was filed as part of the answer, the execution and delivery of the title bond not being denied, no other evidence of its execution was necessary. Robinett v. Taylor, 121 Va. 583 , 93 S.E. 616 , 1917 Va. LEXIS 60 (1917) (see also Simmons v. Simmons, 74 Va. (33 Gratt.) 451 (1880)).

    A bill having alleged that the order filed as the ground of plaintiff’s claim was drawn by one of the defendants, no proof of the signature was necessary. James River & Kanawha Co. v. Littlejohn, 59 Va. (18 Gratt.) 53, 1867 Va. LEXIS 34 (1867).

    Effect of plea denying that plaintiff is holder in due course. —

    The fact that the defendant swears to a plea denying that the plaintiff is the holder in due course of the negotiable note sued on does not throw upon the plaintiff the burden of showing that he is such holder. Holdsworth v. Anderson Drug Co., 118 Va. 359 , 87 S.E. 565 , 1916 Va. LEXIS 16 (1916).

    III.Ownership.

    The purpose of the legislature should not be ignored. That purpose was to make it unnecessary to prove ownership or agency where ownership or agency is alleged, unless an affidavit is filed putting the matter in issue. Subsection B is a wise statute, but it may not be invoked unless proper allegations are made. It was not the purpose of subsection B to catch the unwary, but to obviate the necessity of proving matter which rests peculiarly in the possession of the defendant. Carlton v. Martin, 160 Va. 149 , 168 S.E. 348 , 1933 Va. LEXIS 194 (1933) (see Kirn v. Bembury, 163 Va. 891 , 178 S.E. 53 (1935)).

    The basis of subsection B dispensing with proof of ownership, in the absence of an affidavit denying the allegation of such, is that the failure of the defendant to establish, set up or assert his defense, in the manner prescribed by law, raises a presumption that the material facts alleged or pleaded are admitted to be true. Bova v. Roanoke Oil Co., 180 Va. 332 , 23 S.E.2d 347, 1942 Va. LEXIS 175 (1942).

    Subsection B is remedial and its purpose is to relieve the plaintiff of proving more or less formal matters, and like subsection A, it is designed to aid plaintiffs to concentrate their proof upon the real merits of the controversy without having to be prepared, at the time of trial, to prove the genuineness of the signature to writings in the one instance, or the ownership or control of instrumentalities in the other, unless such matters are put in issue by a sworn plea. Lough v. Lyon, 168 Va. 136 , 190 S.E. 290 , 1937 Va. LEXIS 213 (1937).

    Subsection B is remedial and its purpose is to relieve the plaintiff of proving more or less formal matters. Breeding v. Johnson, 208 Va. 652 , 159 S.E.2d 836, 1968 Va. LEXIS 162 (1968).

    And is liberally construed. —

    Subsection B is highly remedial and is to be liberally construed. Green v. Lum, 147 Va. 392 , 137 S.E. 484 , 1927 Va. LEXIS 309 (1927); Vandergrift v. Summerall, 158 Va. 725 , 164 S.E. 718 , 1932 Va. LEXIS 292 (1932); Driver v. Brooks, 176 Va. 317 , 10 S.E.2d 887, 1940 Va. LEXIS 256 (1940) (see Lough v. Lyon, 168 Va. 136 , 190 S.E. 290 (1937)).

    Subsection B is applicable to either plaintiff or defendant. Hague v. Valentine, 182 Va. 256 , 28 S.E.2d 720, 1944 Va. LEXIS 175 (1944).

    Allegations making subsection B applicable. —

    In an action to recover for injuries received in an automobile collision, plaintiff alleged that one of the defendants, a dealer whose license plates were used on the car which collided with plaintiff’s, operated and controlled such car, by and through the other defendant, the owner and driver thereof, and that such other defendant was driving the car as the agent of the defendant dealer. No affidavit was filed, under this subsection B, specifically denying the allegations, and therefore the trial court refused to admit any evidence tending to disprove such allegations. It was held, that the allegations made the provisions of this subsection B applicable. Driver v. Brooks, 176 Va. 317 , 10 S.E.2d 887, 1940 Va. LEXIS 256 (1940).

    Affidavit not required when no allegation of ownership in pleadings. —

    In an action for injuries arising out of an automobile accident, the notice of motion contained no allegation that one of the defendants owned, operated or controlled the automobile involved. Therefore, it was entirely proper for her counsel to introduce evidence showing that she did not own, operate or control the said automobile. Subsection B required no affidavit in this case. Carlton v. Martin, 160 Va. 149 , 168 S.E. 348 , 1933 Va. LEXIS 194 (1933).

    Subsection B is applicable to a plea of contributory negligence in which the ownership and operation alleged in the notice is denied. Hague v. Valentine, 182 Va. 256 , 28 S.E.2d 720, 1944 Va. LEXIS 175 (1944).

    But subsection B inapplicable to plea denying existence of relation of master and servant and master’s breach of duty. —

    Subsection B does not require an affidavit to a plea putting in issue averments of the existence of the relation of master and servant and a breach of the master’s duty to provide a safe place to work, for subsection B is remedial and its purpose is to relieve the plaintiff of proving more or less formal matters. Lough v. Lyon, 168 Va. 136 , 190 S.E. 290 , 1937 Va. LEXIS 213 (1937).

    It is also inapplicable where defendant is neither owner, operator, nor guest in automobile. —

    The uncontradicted evidence clearly showed that one of the defendants was not the owner or operator of the automobile. It showed that she had no control of it and that the operators of it were not her agents and it also showed that she was not riding in it at the time. It is inconceivable that the legislature through subsection B intended that such a result would follow. It was never intended that subsection B should have any application to such facts. Carlton v. Martin, 160 Va. 149 , 168 S.E. 348 , 1933 Va. LEXIS 194 (1933).

    Operation of vehicle put in issue. —

    In an action for death arising from an automobile accident, defendant filed affidavit that he had no memory of the day of the accident and that insofar as he knew, or was able to determine, he did not drive, operate or control the automobile involved in the accident. Plaintiff moved to quash the affidavit upon the ground that it did not comply with this subsection B, which motion was properly overruled. Plaintiff alleged that defendant drove the automobile that was involved in the accident; defendant made an issue of this allegation by the filing of an affidavit, and having no recollection of the accident, necessarily based it on information and belief. This was sufficient to put plaintiff on notice that the operation of the vehicle was to be an issue. Breeding v. Johnson, 208 Va. 652 , 159 S.E.2d 836, 1968 Va. LEXIS 162 (1968).

    And where defendant is rental agent of house where injury occurred. —

    Subsection B is highly remedial and is to be liberally construed. But it has no application to an action by a prospective tenant against rental agents, where the motion did not allege, nor the proof show, that the defendants had such control of the premises as comes within the purview of subsection B. Turner v. Carneal, 156 Va. 889 , 159 S.E. 72 , 1931 Va. LEXIS 241 (1931).

    Effect of filing affidavit. —

    The instant case was an action against an executor for injuries to plaintiff while riding in his decedent’s car. The executor filed an affidavit to the effect that plaintiff was riding in the car of deceased without authority from deceased. The affidavit was admissible under and a sufficient compliance with subsection B. If no such affidavit had been filed the plaintiff would have been relieved by subsection B of the necessity of proving that the driver had the authority, express or implied, of his master to suffer, permit, or invite the plaintiff to ride in the car. But when this affidavit was filed it put the driver’s authority to do so in issue, and the burden rested upon the plaintiff to prove that the driver had such authority, expressed or implied. Morris v. Dame's Ex'r, 161 Va. 545 , 171 S.E. 662 , 1933 Va. LEXIS 346 (1933).

    Effect of failure to file affidavit. —

    Where defendants failed to file an affidavit under subsection B, denying under oath the ownership and operation of an automobile as alleged, they were not allowed to question such ownership and operation. It stood as a proven fact. Hague v. Valentine, 182 Va. 256 , 28 S.E.2d 720, 1944 Va. LEXIS 175 (1944).

    In an action for injuries arising out of an automobile accident, plaintiff alleged that defendant, or his agent or servant, had negligently driven the taxicab into the automobile in which plaintiff was riding. No affidavit was filed by defendant denying that the driver of the taxicab was his agent. It was held that plaintiff had the right to assume that the agency was admitted, and that manifestly it would have been unfair to require her to prove the agency after she had closed her case in chief. Vandergrift v. Summerall, 158 Va. 725 , 164 S.E. 718 , 1932 Va. LEXIS 292 (1932) (see also Sydnor v. Bonifant, 158 Va. 703 , 164 S.E. 403 (1932)).

    Deposition from former action read by consent does not cure lack of affidavit. —

    The instant case was an action on an automobile insurance policy on a fleet of trucks. Defendant, in a special plea, alleged that at the time of the accident the truck was being operated and maintained by a copartnership of which plaintiff was a member, and, therefore, under subsection B, had the plaintiff desired to require proof of this allegation, it was necessary for him to file an affidavit with the pleadings, putting that fact in issue, and, using the language of subsection B, “denying specifically and with particularity that such property or instrumentality was, at the time alleged, so owned, operated, or controlled.” No such affidavit has ever been filed in this case. A deposition filed in a former action and read by consent as evidence in this case, in which plaintiff denied the partnership, was insufficient to supply the lack of the affidavit. Maryland Cas. Co. v. Cole, 156 Va. 707 , 158 S.E. 873 , 1931 Va. LEXIS 226 (1931).

    IV.Partnership; Incorporation.

    The basis of subsection C dispensing with proof of partnership or incorporation in the absence of an affidavit denying the allegation of such, is that the failure of the defendant to establish, set up or assert his defense, in the manner prescribed by law, raises a presumption that the material facts alleged or pleaded are admitted to be true. Bova v. Roanoke Oil Co., 180 Va. 332 , 23 S.E.2d 347, 1942 Va. LEXIS 175 (1942).

    No express averment of incorporation necessary unless affidavit filed. —

    In an action against a railroad company, it is not necessary to aver in the motion that it is a corporation, nor is it necessary to prove on the trial that the defendant is a corporation, unless with the plea there is filed an affidavit denying that it is. B & O R.R. v. Sherman's Adm'r, 71 Va. (30 Gratt.) 602, 1878 Va. LEXIS 84 (1878), overruled, Hortenstein v. Virginia-Carolina Ry. Co., 102 Va. 914 , 47 S.E. 996 , 1904 Va. LEXIS 55 (1904).

    In an action of assumpsit the writ and declaration was in the name of a plaintiff which indicated that the plaintiff was a corporation, but it was not stated to be a corporation. The defendant pleaded non assumpsit, but did not file an affidavit that the plaintiff was not a corporation. Under this subsection C it was not necessary that the plaintiff should prove it was a corporation. Gillett v. American Stove & Hollow Ware Co., 70 Va. (29 Gratt.) 565, 1877 Va. LEXIS 43 (1877).

    Incorporation at time of transaction, not of institution of suit, must be denied. —

    An affidavit denying the existence of any such corporation as the defendant at the time of the institution of the suit, but not denying the existence of such corporation at the time of the contract sued on, is not sufficient under subsection C to put plaintiff to proof of the existence of such corporation. Richmond Union Passenger Ry. v. New York & S.B. Ry., 95 Va. 386 , 28 S.E. 573 , 1897 Va. LEXIS 47 (1897).

    Affidavit not necessary when agreement to form partnership alleged. —

    Under subsection C where plaintiffs or defendants sue or are sued as partners, it is not necessary to prove the fact of partnership, unless with the pleading which puts the matter in issue there is an affidavit denying such partnership. However, a denial of the partnership must be supported by an affidavit only when a partnership, as such, is a party to the litigation. The requirement does not include a case where one party alleges an agreement to form a partnership and the other party denies any such agreement. Kennedy v. Mullins, 155 Va. 166 , 154 S.E. 568 , 1930 Va. LEXIS 155 (1930).

    Only party filing affidavit gets benefit therefrom. —

    In the instant case defendants were sued as composing an alleged partnership and an office judgment entered against them. Thereupon, in due time, one of the defendants entered a plea of non assumpsit and an affidavit alleging that no such partnership exists and that he had never been a member of such partnership as alleged in the declaration. It was held that this plea and affidavit did not “put the matter in issue” as to other alleged partners, and could not inure to their benefit. While entirely sufficient to set aside the office judgment as to the defendant making the plea, it could not have that effect as to other defendants. Perkins v. Miners Bank, 126 Va. 66 , 101 S.E. 50 , 1919 Va. LEXIS 76 (1919).

    Affidavit filed by defendant after all evidence introduced. —

    After all of the evidence had been introduced on behalf of the plaintiff, the greater part of which evidence being for the purpose of proving an alleged partnership, and the plaintiff had announced his case closed, and after the defendant had introduced all of the evidence in his behalf to deny the existence of the alleged partnership, and had announced his case closed, but while both the plaintiff and the defendant, who were only witnesses in the case, were still in the court room, counsel for plaintiff called the attention of the court to the failure of the defendant to file with his plea the proper affidavit under subsection C denying the partnership. Thereupon, on the motion of counsel for the defendant and over the objection and exception of the plaintiff, the court permitted the counsel for the defendant to prepare and file such an affidavit. It was held that under these circumstances, where neither the evidence nor the facts were certified to the Supreme Court so that that court had no facts showing that plaintiff’s rights had been injuriously affected, the judgment in favor of the defendant should be affirmed. Dean v. Dean, 122 Va. 513 , 95 S.E. 431 , 1918 Va. LEXIS 115 (1918).

    Sufficient to set aside office judgment. —

    A plea of non assumpsit, accompanied by affidavit under subsection C, is sufficient to set aside office judgment as to the party filing it. Perkins v. Miners Bank, 126 Va. 66 , 101 S.E. 50 , 1919 Va. LEXIS 76 (1919).

    Plea need not be in writing when affidavit filed. —

    If an affidavit accompanies a plea of non assumpsit denying incorporation, it is not necessary that the plea should be in writing. Dudley v. Carter Red Ash Collieries Co., 125 Va. 701 , 100 S.E. 466 , 1919 Va. LEXIS 59 (1919).

    When no affidavit filed verdict settles issue. —

    In an action of unlawful detainer, defendants denied that a partnership existed between them, and claimed that none was alleged or proved. The summons was against defendants, naming them, trading as the Lewis Creek Mercantile Company, and the notice to terminate the lease was against the same concern. The defendants appeared, pleaded not guilty, and issue was joined. There was no affidavit denying partnership under subsection C. It was held that all conflicts between the testimony of plaintiffs and defendants were settled by the verdict of the jury in favor of plaintiffs. Thompson v. Artrip, 131 Va. 347 , 108 S.E. 850 , 1921 Va. LEXIS 28 (1921).

    Defendant may not show partnership dissolved absent affidavit. —

    Under a former, similar statute pertaining to actions on promissory notes, it was held that where the declaration charged that the defendants by their partnership name subscribed the note, and there was no affidavit by the defendants or any of them putting the execution of the note in issue, the defendants were precluded from showing that the partnership had been dissolved before the note was made, and that the person making it had no authority to execute it for the other parties. Phaup v. Stratton, 50 Va. (9 Gratt.) 615 (1853).

    II.Handwriting.

    The basis of statutes dispensing with proof of signature, in the absence of an affidavit denying the allegations of such, is that the failure of the defendant to establish, set up or assert his defense, in the manner prescribed by law, raises a presumption that the material facts alleged or pleaded are admitted to be true. Bova v. Roanoke Oil Co., 180 Va. 332 , 23 S.E.2d 347, 1942 Va. LEXIS 175 (1942).

    When subsection A applicable. —

    Subsection A only applies where the declaration alleges that the defendant, or the person stated to have made the writing, subscribed his name thereto. Kelley v. Paul, 44 Va. (3 Gratt.) 191, 1846 Va. LEXIS 41 (1846); Shepherd, Hunter & Co. v. Frys, 44 Va. (3 Gratt.) 442, 1847 Va. LEXIS 4 (1847).

    Subsection A does not apply to a transfer of paper by mere delivery. Clason v. Parrish, 93 Va. 24 , 24 S.E. 471 , 1896 Va. LEXIS 48 (1896).

    Subsection A applies to instruments signed with the name of the partnership. But the question is still open, whether the persons sought to be charged are members of the partnership. Shepherd, Hunter & Co. v. Frys, 44 Va. (3 Gratt.) 442, 1847 Va. LEXIS 4 (1847).

    The defenses contemplated by subsection A involve a denial of the making (the factum) of the writing, indorsement, assignment, acceptance or other writing by the person charged therewith, not of other facts in connection with rights of the holder to recover thereon. Holdsworth v. Anderson Drug Co., 118 Va. 359 , 87 S.E. 565 , 1916 Va. LEXIS 16 (1916).

    A plea under subsection A is equivalent to a plea of non est factum. Holdsworth v. Anderson Drug Co., 118 Va. 359 , 87 S.E. 565 , 1916 Va. LEXIS 16 (1916); Hillman v. Cornett, 137 Va. 200 , 119 S.E. 74 , 1923 Va. LEXIS 148 (1923).

    Answer under oath sufficient. —

    Subsection A was substantially complied with by the answer, under oath, filed in the cause, in which the genuineness of the alleged receipt was disputed, and its validity challenged, and the strictest proof of its genuineness called for. Harnsberger v. Cochran, 82 Va. 727 , 1 S.E. 120 , 1887 Va. LEXIS 138 (1887) (see also Piedmont Bank v. Hatcher, 94 Va. 229 , 26 S.E. 505 (1897)).

    Affidavit may be filed during trial at the discretion of the court. —

    In an action upon a note the court allowed the plaintiff during the trial to file an affidavit denying the signature of payee to a receipt for a part payment upon the note. Defendants had relied upon subsection A, and objected to any evidence denying the genuineness of the signature to the receipt. Their objection was properly sustained. Then, upon motion, the plaintiff was permitted to file an affidavit denying the genuineness of such signature, which was approved on appeal. Keister v. Philips, 124 Va. 585 , 98 S.E. 674 , 1919 Va. LEXIS 150 (1919).

    Photocopy of license agreement held properly admitted. —

    Where plaintiff questioned at trial the authenticity of the signatures on the license agreement and objected to the fact that the manager for defendant’s store who identified the agreement could not authenticate the signatures from personal knowledge, but did not comply with the statutory mandate, and moreover, in conjunction with its motion to dismiss, defendant submitted the affidavit of its manager identifying the document and verifying the signatures, the trial court properly admitted a photocopy of the license agreement. Carmody v. F.W. Woolworth Co., 234 Va. 198 , 361 S.E.2d 128, 4 Va. Law Rep. 793, 1987 Va. LEXIS 229 (1987).

    Objection to the evidence must be made in trial court. —

    A plaintiff in equity files with his bill, as the ground of his claim, an order on one of the defendants, which has not been accepted. No proof of the execution of the order is given, but its genuineness is not questioned in the court below, and it is made the basis of a decree in favor of the plaintiff. It is too late to make objection in the appellate court, to the want of proof of the order. James River & Kanawha Co. v. Littlejohn, 59 Va. (18 Gratt.) 53, 1867 Va. LEXIS 34 (1867).

    Bill dismissed upon default of proof. —

    Where the answer of the maker of a note denies that the payee indorsed it to the complainant as alleged in the latter’s bill, and the denial is supported by affidavit, as required by subsection A, the burden of proof is thrown upon the complainant to show such indorsement, and in default thereof his bill should be dismissed. Harnsberger v. Cochran, 82 Va. 727 , 1 S.E. 120 , 1887 Va. LEXIS 138 (1887); Piedmont Bank v. Hatcher, 94 Va. 229 , 26 S.E. 505 , 1897 Va. LEXIS 66 (1897); Hillman v. Cornett, 137 Va. 200 , 119 S.E. 74 , 1923 Va. LEXIS 148 (1923).

    Effect of failure to deny by affidavit. —

    When any writing whatsoever is relied on in a pleading, unless it is questioned by an affidavit or sworn pleading it cannot be questioned at all and the party relying on it will not be required to introduce any evidence at all to prove it. Chestnut v. Chestnut, 104 Va. 539 , 52 S.E. 348 , 1905 Va. LEXIS 131 (1905); Taylor v. Carter, 117 Va. 845 , 86 S.E. 120 , 1915 Va. LEXIS 103 (1915); Hillman v. Cornett, 137 Va. 200 , 119 S.E. 74 , 1923 Va. LEXIS 148 (1923).

    Where notice of motion for judgment alleged that contract was signed by defendant, and there was no affidavit denying such signature, proof thereof was not required. Bova v. Roanoke Oil Co., 180 Va. 332 , 23 S.E.2d 347, 1942 Va. LEXIS 175 (1942).

    In view of § 8.01-389 providing for the admission of foreign deeds in evidence, and this section, it was proper for the court to admit a deed of trust in evidence which was not filed with the answer, but was subsequently offered, where such deed was relied upon by the defendant in answer to an attachment and not denied by affidavit of plaintiff. F.D. Cummer & Son Co. v. R.M. Hudson Co., 141 Va. 271 , 127 S.E. 171 , 1925 Va. LEXIS 406 (1925).

    Title bond sufficient evidence of title where execution not denied. —

    Under this statute, prior to the 1919 revision, where an answer set up a title bond as a source of title and the bond was filed as part of the answer, the execution and delivery of the title bond not being denied, no other evidence of its execution was necessary. Robinett v. Taylor, 121 Va. 583 , 93 S.E. 616 , 1917 Va. LEXIS 60 (1917) (see also Simmons v. Simmons, 74 Va. (33 Gratt.) 451 (1880)).

    A bill having alleged that the order filed as the ground of plaintiff’s claim was drawn by one of the defendants, no proof of the signature was necessary. James River & Kanawha Co. v. Littlejohn, 59 Va. (18 Gratt.) 53, 1867 Va. LEXIS 34 (1867).

    Effect of plea denying that plaintiff is holder in due course. —

    The fact that the defendant swears to a plea denying that the plaintiff is the holder in due course of the negotiable note sued on does not throw upon the plaintiff the burden of showing that he is such holder. Holdsworth v. Anderson Drug Co., 118 Va. 359 , 87 S.E. 565 , 1916 Va. LEXIS 16 (1916).

    III.Ownership.

    The purpose of the legislature should not be ignored. That purpose was to make it unnecessary to prove ownership or agency where ownership or agency is alleged, unless an affidavit is filed putting the matter in issue. Subsection B is a wise statute, but it may not be invoked unless proper allegations are made. It was not the purpose of subsection B to catch the unwary, but to obviate the necessity of proving matter which rests peculiarly in the possession of the defendant. Carlton v. Martin, 160 Va. 149 , 168 S.E. 348 , 1933 Va. LEXIS 194 (1933) (see Kirn v. Bembury, 163 Va. 891 , 178 S.E. 53 (1935)).

    The basis of subsection B dispensing with proof of ownership, in the absence of an affidavit denying the allegation of such, is that the failure of the defendant to establish, set up or assert his defense, in the manner prescribed by law, raises a presumption that the material facts alleged or pleaded are admitted to be true. Bova v. Roanoke Oil Co., 180 Va. 332 , 23 S.E.2d 347, 1942 Va. LEXIS 175 (1942).

    Subsection B is remedial and its purpose is to relieve the plaintiff of proving more or less formal matters, and like subsection A, it is designed to aid plaintiffs to concentrate their proof upon the real merits of the controversy without having to be prepared, at the time of trial, to prove the genuineness of the signature to writings in the one instance, or the ownership or control of instrumentalities in the other, unless such matters are put in issue by a sworn plea. Lough v. Lyon, 168 Va. 136 , 190 S.E. 290 , 1937 Va. LEXIS 213 (1937).

    Subsection B is remedial and its purpose is to relieve the plaintiff of proving more or less formal matters. Breeding v. Johnson, 208 Va. 652 , 159 S.E.2d 836, 1968 Va. LEXIS 162 (1968).

    And is liberally construed. —

    Subsection B is highly remedial and is to be liberally construed. Green v. Lum, 147 Va. 392 , 137 S.E. 484 , 1927 Va. LEXIS 309 (1927); Vandergrift v. Summerall, 158 Va. 725 , 164 S.E. 718 , 1932 Va. LEXIS 292 (1932); Driver v. Brooks, 176 Va. 317 , 10 S.E.2d 887, 1940 Va. LEXIS 256 (1940) (see Lough v. Lyon, 168 Va. 136 , 190 S.E. 290 (1937)).

    Subsection B is applicable to either plaintiff or defendant. Hague v. Valentine, 182 Va. 256 , 28 S.E.2d 720, 1944 Va. LEXIS 175 (1944).

    Allegations making subsection B applicable. —

    In an action to recover for injuries received in an automobile collision, plaintiff alleged that one of the defendants, a dealer whose license plates were used on the car which collided with plaintiff’s, operated and controlled such car, by and through the other defendant, the owner and driver thereof, and that such other defendant was driving the car as the agent of the defendant dealer. No affidavit was filed, under this subsection B, specifically denying the allegations, and therefore the trial court refused to admit any evidence tending to disprove such allegations. It was held, that the allegations made the provisions of this subsection B applicable. Driver v. Brooks, 176 Va. 317 , 10 S.E.2d 887, 1940 Va. LEXIS 256 (1940).

    Affidavit not required when no allegation of ownership in pleadings. —

    In an action for injuries arising out of an automobile accident, the notice of motion contained no allegation that one of the defendants owned, operated or controlled the automobile involved. Therefore, it was entirely proper for her counsel to introduce evidence showing that she did not own, operate or control the said automobile. Subsection B required no affidavit in this case. Carlton v. Martin, 160 Va. 149 , 168 S.E. 348 , 1933 Va. LEXIS 194 (1933).

    Subsection B is applicable to a plea of contributory negligence in which the ownership and operation alleged in the notice is denied. Hague v. Valentine, 182 Va. 256 , 28 S.E.2d 720, 1944 Va. LEXIS 175 (1944).

    But subsection B inapplicable to plea denying existence of relation of master and servant and master’s breach of duty. —

    Subsection B does not require an affidavit to a plea putting in issue averments of the existence of the relation of master and servant and a breach of the master’s duty to provide a safe place to work, for subsection B is remedial and its purpose is to relieve the plaintiff of proving more or less formal matters. Lough v. Lyon, 168 Va. 136 , 190 S.E. 290 , 1937 Va. LEXIS 213 (1937).

    It is also inapplicable where defendant is neither owner, operator, nor guest in automobile. —

    The uncontradicted evidence clearly showed that one of the defendants was not the owner or operator of the automobile. It showed that she had no control of it and that the operators of it were not her agents and it also showed that she was not riding in it at the time. It is inconceivable that the legislature through subsection B intended that such a result would follow. It was never intended that subsection B should have any application to such facts. Carlton v. Martin, 160 Va. 149 , 168 S.E. 348 , 1933 Va. LEXIS 194 (1933).

    Operation of vehicle put in issue. —

    In an action for death arising from an automobile accident, defendant filed affidavit that he had no memory of the day of the accident and that insofar as he knew, or was able to determine, he did not drive, operate or control the automobile involved in the accident. Plaintiff moved to quash the affidavit upon the ground that it did not comply with this subsection B, which motion was properly overruled. Plaintiff alleged that defendant drove the automobile that was involved in the accident; defendant made an issue of this allegation by the filing of an affidavit, and having no recollection of the accident, necessarily based it on information and belief. This was sufficient to put plaintiff on notice that the operation of the vehicle was to be an issue. Breeding v. Johnson, 208 Va. 652 , 159 S.E.2d 836, 1968 Va. LEXIS 162 (1968).

    And where defendant is rental agent of house where injury occurred. —

    Subsection B is highly remedial and is to be liberally construed. But it has no application to an action by a prospective tenant against rental agents, where the motion did not allege, nor the proof show, that the defendants had such control of the premises as comes within the purview of subsection B. Turner v. Carneal, 156 Va. 889 , 159 S.E. 72 , 1931 Va. LEXIS 241 (1931).

    Effect of filing affidavit. —

    The instant case was an action against an executor for injuries to plaintiff while riding in his decedent’s car. The executor filed an affidavit to the effect that plaintiff was riding in the car of deceased without authority from deceased. The affidavit was admissible under and a sufficient compliance with subsection B. If no such affidavit had been filed the plaintiff would have been relieved by subsection B of the necessity of proving that the driver had the authority, express or implied, of his master to suffer, permit, or invite the plaintiff to ride in the car. But when this affidavit was filed it put the driver’s authority to do so in issue, and the burden rested upon the plaintiff to prove that the driver had such authority, expressed or implied. Morris v. Dame's Ex'r, 161 Va. 545 , 171 S.E. 662 , 1933 Va. LEXIS 346 (1933).

    Effect of failure to file affidavit. —

    Where defendants failed to file an affidavit under subsection B, denying under oath the ownership and operation of an automobile as alleged, they were not allowed to question such ownership and operation. It stood as a proven fact. Hague v. Valentine, 182 Va. 256 , 28 S.E.2d 720, 1944 Va. LEXIS 175 (1944).

    In an action for injuries arising out of an automobile accident, plaintiff alleged that defendant, or his agent or servant, had negligently driven the taxicab into the automobile in which plaintiff was riding. No affidavit was filed by defendant denying that the driver of the taxicab was his agent. It was held that plaintiff had the right to assume that the agency was admitted, and that manifestly it would have been unfair to require her to prove the agency after she had closed her case in chief. Vandergrift v. Summerall, 158 Va. 725 , 164 S.E. 718 , 1932 Va. LEXIS 292 (1932) (see also Sydnor v. Bonifant, 158 Va. 703 , 164 S.E. 403 (1932)).

    Deposition from former action read by consent does not cure lack of affidavit. —

    The instant case was an action on an automobile insurance policy on a fleet of trucks. Defendant, in a special plea, alleged that at the time of the accident the truck was being operated and maintained by a copartnership of which plaintiff was a member, and, therefore, under subsection B, had the plaintiff desired to require proof of this allegation, it was necessary for him to file an affidavit with the pleadings, putting that fact in issue, and, using the language of subsection B, “denying specifically and with particularity that such property or instrumentality was, at the time alleged, so owned, operated, or controlled.” No such affidavit has ever been filed in this case. A deposition filed in a former action and read by consent as evidence in this case, in which plaintiff denied the partnership, was insufficient to supply the lack of the affidavit. Maryland Cas. Co. v. Cole, 156 Va. 707 , 158 S.E. 873 , 1931 Va. LEXIS 226 (1931).

    IV.Partnership; Incorporation.

    The basis of subsection C dispensing with proof of partnership or incorporation in the absence of an affidavit denying the allegation of such, is that the failure of the defendant to establish, set up or assert his defense, in the manner prescribed by law, raises a presumption that the material facts alleged or pleaded are admitted to be true. Bova v. Roanoke Oil Co., 180 Va. 332 , 23 S.E.2d 347, 1942 Va. LEXIS 175 (1942).

    No express averment of incorporation necessary unless affidavit filed. —

    In an action against a railroad company, it is not necessary to aver in the motion that it is a corporation, nor is it necessary to prove on the trial that the defendant is a corporation, unless with the plea there is filed an affidavit denying that it is. B & O R.R. v. Sherman's Adm'r, 71 Va. (30 Gratt.) 602, 1878 Va. LEXIS 84 (1878), overruled, Hortenstein v. Virginia-Carolina Ry. Co., 102 Va. 914 , 47 S.E. 996 , 1904 Va. LEXIS 55 (1904).

    In an action of assumpsit the writ and declaration was in the name of a plaintiff which indicated that the plaintiff was a corporation, but it was not stated to be a corporation. The defendant pleaded non assumpsit, but did not file an affidavit that the plaintiff was not a corporation. Under this subsection C it was not necessary that the plaintiff should prove it was a corporation. Gillett v. American Stove & Hollow Ware Co., 70 Va. (29 Gratt.) 565, 1877 Va. LEXIS 43 (1877).

    Incorporation at time of transaction, not of institution of suit, must be denied. —

    An affidavit denying the existence of any such corporation as the defendant at the time of the institution of the suit, but not denying the existence of such corporation at the time of the contract sued on, is not sufficient under subsection C to put plaintiff to proof of the existence of such corporation. Richmond Union Passenger Ry. v. New York & S.B. Ry., 95 Va. 386 , 28 S.E. 573 , 1897 Va. LEXIS 47 (1897).

    Affidavit not necessary when agreement to form partnership alleged. —

    Under subsection C where plaintiffs or defendants sue or are sued as partners, it is not necessary to prove the fact of partnership, unless with the pleading which puts the matter in issue there is an affidavit denying such partnership. However, a denial of the partnership must be supported by an affidavit only when a partnership, as such, is a party to the litigation. The requirement does not include a case where one party alleges an agreement to form a partnership and the other party denies any such agreement. Kennedy v. Mullins, 155 Va. 166 , 154 S.E. 568 , 1930 Va. LEXIS 155 (1930).

    Only party filing affidavit gets benefit therefrom. —

    In the instant case defendants were sued as composing an alleged partnership and an office judgment entered against them. Thereupon, in due time, one of the defendants entered a plea of non assumpsit and an affidavit alleging that no such partnership exists and that he had never been a member of such partnership as alleged in the declaration. It was held that this plea and affidavit did not “put the matter in issue” as to other alleged partners, and could not inure to their benefit. While entirely sufficient to set aside the office judgment as to the defendant making the plea, it could not have that effect as to other defendants. Perkins v. Miners Bank, 126 Va. 66 , 101 S.E. 50 , 1919 Va. LEXIS 76 (1919).

    Affidavit filed by defendant after all evidence introduced. —

    After all of the evidence had been introduced on behalf of the plaintiff, the greater part of which evidence being for the purpose of proving an alleged partnership, and the plaintiff had announced his case closed, and after the defendant had introduced all of the evidence in his behalf to deny the existence of the alleged partnership, and had announced his case closed, but while both the plaintiff and the defendant, who were only witnesses in the case, were still in the court room, counsel for plaintiff called the attention of the court to the failure of the defendant to file with his plea the proper affidavit under subsection C denying the partnership. Thereupon, on the motion of counsel for the defendant and over the objection and exception of the plaintiff, the court permitted the counsel for the defendant to prepare and file such an affidavit. It was held that under these circumstances, where neither the evidence nor the facts were certified to the Supreme Court so that that court had no facts showing that plaintiff’s rights had been injuriously affected, the judgment in favor of the defendant should be affirmed. Dean v. Dean, 122 Va. 513 , 95 S.E. 431 , 1918 Va. LEXIS 115 (1918).

    Sufficient to set aside office judgment. —

    A plea of non assumpsit, accompanied by affidavit under subsection C, is sufficient to set aside office judgment as to the party filing it. Perkins v. Miners Bank, 126 Va. 66 , 101 S.E. 50 , 1919 Va. LEXIS 76 (1919).

    Plea need not be in writing when affidavit filed. —

    If an affidavit accompanies a plea of non assumpsit denying incorporation, it is not necessary that the plea should be in writing. Dudley v. Carter Red Ash Collieries Co., 125 Va. 701 , 100 S.E. 466 , 1919 Va. LEXIS 59 (1919).

    When no affidavit filed verdict settles issue. —

    In an action of unlawful detainer, defendants denied that a partnership existed between them, and claimed that none was alleged or proved. The summons was against defendants, naming them, trading as the Lewis Creek Mercantile Company, and the notice to terminate the lease was against the same concern. The defendants appeared, pleaded not guilty, and issue was joined. There was no affidavit denying partnership under subsection C. It was held that all conflicts between the testimony of plaintiffs and defendants were settled by the verdict of the jury in favor of plaintiffs. Thompson v. Artrip, 131 Va. 347 , 108 S.E. 850 , 1921 Va. LEXIS 28 (1921).

    Defendant may not show partnership dissolved absent affidavit. —

    Under a former, similar statute pertaining to actions on promissory notes, it was held that where the declaration charged that the defendants by their partnership name subscribed the note, and there was no affidavit by the defendants or any of them putting the execution of the note in issue, the defendants were precluded from showing that the partnership had been dissolved before the note was made, and that the person making it had no authority to execute it for the other parties. Phaup v. Stratton, 50 Va. (9 Gratt.) 615 (1853).

    § 8.01-280. Pleadings may be sworn to before clerk; affidavit of belief sufficient.

    Any pleading to be filed in any court may be sworn to before the clerk or any officer authorized to administer oath thereof; and when an affidavit is required in support of any pleading or as a prerequisite to the issuance thereof, it shall be sufficient if the affiant swear that he believes it to be true.

    History. Code 1950, § 8-131; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 4B M.J. Corporations, § 246.

    CASE NOTES

    Sufficiency of affidavit. —

    If an affidavit in support of a pleading is sufficient when affiant swears that “he believes it to be true,” there is no reason in principle for holding that an affidavit concluding “true to the best of his knowledge and belief” is not a substantial compliance with former version of this section. Paris v. Brown, 143 Va. 896 , 129 S.E. 678 , 1925 Va. LEXIS 312 (1925) (decided under prior law).

    § 8.01-281. Pleading in alternative; separate trial on motion of party.

    1. A party asserting either a claim, counterclaim, cross-claim, or third-party claim or a defense may plead alternative facts and theories of recovery against alternative parties, provided that such claims, defenses, or demands for relief so joined arise out of the same transaction or occurrence. Such claim, counterclaim, cross-claim, or third-party claim may be for contribution, indemnity, subrogation, or contract, express or implied; it may be based on future potential liability, and it shall be no defense thereto that the party asserting such claim, counterclaim, cross-claim, or third-party claim has made no payment or otherwise discharged any claim as to him arising out of the transaction or occurrence.
    2. The court may, upon motion of any party, order a separate trial of any claim, counterclaim, cross-claim, or third-party claim, and of any separate issue or of any number of such claims; however, in any action wherein a defendant files a third-party motion for judgment alleging that damages to the person or property of the plaintiff were caused by the negligence of the third-party defendant in the operation of a motor vehicle, the court shall, upon motion of the plaintiff made at least five days in advance of trial, order a separate trial of such third-party claim.

    History. Code 1950, § 8-96.1; 1974, c. 355; 1977, c. 617; 1981, c. 426; 1983, c. 183.

    REVISERS’ NOTE

    Former § 8-96.1 restricted pleading in the alternative to actions arising out of a motor vehicle accident. Section 8.01-281 removes this restriction.

    Subsection A grants a party asserting any claim or defense the right to join alternative claims or defenses — i.e. to present alternative statements of the facts or alternative legal theories. Subsection B provides that upon motion of any party the court may sever claims for a separate trial.

    NB: This section does not provide for class actions.

    Cross references.

    As to action for goods carried away, or for waste, destruction of, or damage to estate of decedent, see § 64.2-520 .

    Law Review.

    For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974).

    For annual survey commentary, “The Merger of Common-Law and Equity Pleading in Virginia,” see 41 U. Rich. L. Rev. 77 (2006).

    For annual survey essay, “Election of Remedies in the Twenty-First Century: Centra Health, Inc. v. Mullins,” 44 U. Rich. L. Rev. 149 (2009).

    For essay “Bifurcation of Civil Trials,” see 45 U. Rich. L. Rev. 1 (2010).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Abatement, Survival and Revival, § 22.

    CASE NOTES

    Rule 3:10 [see now Rule 3:13] and this section are mere procedural devices to promote judicial economy by having all claims, actual or potential, arising from the same transaction or occurrence, determined in one proceeding. Virginia Int'l Terms., Inc. v. Ceres Marine Terms., Inc., 879 F. Supp. 31, 1995 U.S. Dist. LEXIS 2428 (E.D. Va. 1995).

    The 1981 amendment to this section was a procedural device for the sake of judicial economy. It just allows third-party plaintiffs to make indemnity claims before the actual claim has technically accrued. Wingo v. Norfolk & W. Ry., 638 F. Supp. 107, 1986 U.S. Dist. LEXIS 25214 (W.D. Va. 1986).

    Sufficiency. —

    Where the allegations of a pleading support two alternative theories of recovery, the pleading of one is not made insufficient by the insufficiency of the other. Balzer & Assocs. v. Lakes on 360, Inc., 250 Va. 527 , 463 S.E.2d 453, 1995 Va. LEXIS 139 (1995).

    Claim based on future potential liability in contribution. —

    According to subsection A of this section and Supreme Court Rule 3:10(a) [see now Rule 3:13(a)], a claim based on future potential liability in contribution may be asserted in a third-party motion for judgment filed in a pending suit even though the third-party claimant has made no payment or otherwise discharged any claim against him. Gemco-Ware, Inc. v. Rongene Mold & Plastics Corp., 234 Va. 54 , 360 S.E.2d 342, 4 Va. Law Rep. 431, 1987 Va. LEXIS 245 (1987).

    Effect of section. —

    In the absence of this section and Rule 3:10 [see now Rule 3:13], a party having a claim for indemnity or contribution against another would be prevented from pursuing the claim until it accrued. Virginia Int'l Terms., Inc. v. Ceres Marine Terms., Inc., 879 F. Supp. 31, 1995 U.S. Dist. LEXIS 2428 (E.D. Va. 1995).

    Accrual of indemnification action. —

    This section authorizes a party in a pending action to file a third-party motion for judgment (complaint) seeking indemnification or contribution. Rule 3:10(a) [see now Rule 3:13(a)] establishes the procedure for filing such a claim. When a claim for indemnity or contribution is filed as a separate cause of action, it does not accrue until the person seeking the relief has paid more than his or her share of the obligation. Virginia Int'l Terms., Inc. v. Ceres Marine Terms., Inc., 879 F. Supp. 31, 1995 U.S. Dist. LEXIS 2428 (E.D. Va. 1995).

    Dismissal for misjoinder of defendants and causes of action held erroneous. —

    Where a fair reading of the amended motion for judgment showed that plaintiff pleaded alternative theories of recovery against the same group of defendants and that the claims arose out of the same transaction or occurrence; the trial court erred in dismissing plaintiff’s action on the ground of misjoinder of parties defendant and causes of action. Fox v. Deese, 234 Va. 412 , 362 S.E.2d 699, 4 Va. Law Rep. 1248, 1987 Va. LEXIS 272 (1987).

    Chancellor correctly determined activities were a nuisance. —

    Because it was a suit in equity and there was no motion for an issue out of chancery, the chancellor correctly held that he must first determine whether the activities complained of constituted a nuisance. Packett v. Herbert, 237 Va. 422 , 377 S.E.2d 438, 5 Va. Law Rep. 1984, 1989 Va. LEXIS 34 (1989).

    Seller could not sue buyer for installment payments under assigned contract. —

    Where a seller assigned to a finance company all of the seller’s rights to payment on a contract for the sale of a truck, § 8.01-281 did not permit the seller to sue a buyer for the full amount of the installment payments due under the contract because: (1) the finance company had not even filed a claim against the seller; and (2) the finance company recouped some of the value of the sales contract by reselling the truck. Because the finance company had not sued the buyer for the remaining deficiency for which the buyer was liable pursuant to former § 8.9-504(2), the finance company was not in a posture to sue the seller. Nigh v. Koons Buick Pontiac GMC, Inc., No. 00-1634-A, 2001 U.S. Dist. LEXIS 26274 (E.D. Va. Aug. 15, 2001).

    Joinder of claims. —

    Circuit court properly dismissed a seller’s second suit against the buyer on the basis of res judicata because the seller’s claims — for settlement, oral contract, and quantum meruit — all fit within a single factual narrative — to be paid for work it did for the buyer — and accrued before the seller had ever filed the first suit for breach of an alleged settlement agreement, and the seller’s alternative claims qualified for joinder under the “same transaction or occurrence” standard and constituted res judicata under the same standard where no disqualifying principle of res judicata applied. Funny Guy, LLC v. Lecego, LLC, 293 Va. 135 , 795 S.E.2d 887, 2017 Va. LEXIS 7 (2017).

    Alternative pleading permitted in workers’ compensation case. —

    Workers’ Compensation Commission did not hold that employee could not advance two alternative theories of compensability and still meet her burden of proof; instead, the Commission found that the medical evidence and testimony presented by the employee did not prove either of her theories, and the Commission merely pointed out that, in addition to the lacking evidence, the employee’s presentation of two alternative theories was yet another factor demonstrating that the employee did not definitively know the cause of her accident. Burney-Divens v. Cmty. Corr. Admin., 2016 Va. App. LEXIS 145 (Va. Ct. App. May 3, 2016).

    CIRCUIT COURT OPINIONS

    Joinder. —

    Where couple asserted, in addition to counts seeking indemnity against liability, direct contract claims having no indemnity flavor to them at all, under § 8.01-281 A, the challenged counts qualified as claims that could be joined to non-indemnity claims. Jackson v. Quantrex Integrated Tech. Group, Inc., 57 Va. Cir. 368, 2002 Va. Cir. LEXIS 42 (Southampton County Feb. 12, 2002).

    Third-party plaintiffs’ motion for judgment was not subject to demurrer because, under § 8.01-281 , third-party plaintiffs properly joined their fraud claim against the party suing them for breach of contract in the same action, as the fraud was alleged to have occurred as to the same contract. Colinsky Consulting, Inc. v. Holloway, 57 Va. Cir. 403, 2002 Va. Cir. LEXIS 225 (Norfolk Mar. 1, 2002).

    Joinder of the estate’s claims against the pharmaceutical manufacturers and the health-care providers was permitted because the right of action against each defendant rested upon the allegation that the decedent’s death resulted from the negligence of each and thus, the claims arose out of the same transaction or occurrence. Wright v. Eli Lilly & Co., 66 Va. Cir. 195, 2004 Va. Cir. LEXIS 316 (Portsmouth Nov. 15, 2004).

    Car dealer’s demurrer to a buyer’s amended motion for judgment was overruled as: (1) the tort and contract claims demonstrated an ongoing series of negotiations with respect to one specific good, the purchase of a car, (2) the claims involved the same witnesses, documents, and nexus of facts, and (3) judicial economy would be served by trying the claims together; that insurance information would be introduced at trial with respect to the contract claim, but it would be improper to introduce such information with respect to the tort claims, could be remedied by limiting jury instructions. The trial court refused to sever the contract claim. Sykes v. Brady-Bushey Ford, Inc., 69 Va. Cir. 219, 2005 Va. Cir. LEXIS 323 (Charlottesville Oct. 27, 2005).

    Lessors were not precluded from pleading in the alternative the disparate theories of recovery of trespass and waste because the lessors did not successively change their position but merely asserted multiple alternative theories of recovery in their counterclaim, and such alternative pleading was clearly permitted under the statute and was common in practice; hence, the lessors could plead alternative causes of action based on contradictory theories. Ticonderoga Farms, LLC v. Knop, 97 Va. Cir. 479, 2017 Va. Cir. LEXIS 157 (Loudoun County Aug. 23, 2017).

    All claims against a power company were barred because they could have been brought in another action; nothing prevented property owners from joining the claims. Richardson v. Va. Elec. & Power Co., 96 Va. Cir. 114, 2017 Va. Cir. LEXIS 143 (Norfolk July 17, 2017).

    Demurrer as to a subrogee’s negligence count was denied because the statute allowed pleading the same theory against multiple defendants. Occidental Fire & Cas. Co. v. AREVA Inc., 100 Va. Cir. 45, 2018 Va. Cir. LEXIS 322 (Nelson County Sept. 18, 2018).

    Separate trial allowed. —

    It was appropriate to separate a tort action between a contractor and a plant operator from the contract action between the operator and the contractor’s employer in order to protect all parties and to avoid prejudice because requiring the parties to present two sets of arguments with two sets of experts and two sets of attorneys in a single trial was likely to confuse the jury. Prum v. Linde Gas N. Am., LLC, 92 Va. Cir. 89, 2015 Va. Cir. LEXIS 238 (Hopewell July 6, 2015).

    It was appropriate to separate a tort action between a contractor and a plant operator from the contract action between the operator and the contractor’s employer because it was logical and appropriate to consolidate the two claims for discovery purposes to avoid the unnecessary replication of depositions and written discovery, and thus the imposition of unnecessary additional costs on the parties. Prum v. Linde Gas N. Am., LLC, 92 Va. Cir. 89, 2015 Va. Cir. LEXIS 238 (Hopewell July 6, 2015).

    Ruling on plea at bar. —

    Because a defendant properly pleaded a statute of limitations defense under § 8.01-235 , and pursuant to § 8.01-281 and Va. Sup. Ct. R. 4:13(8) ruling on a plea at bar did not have to be deferred until the date of trial, the plaintiff’s petition for declaratory judgment under § 8.01-191 was dismissed. Trivedi v. Pansuria, 72 Va. Cir. 220, 2006 Va. Cir. LEXIS 196 (Chesterfield County Nov. 3, 2006).

    Asserting both equitable and legal theories of recovery. —

    Section 8.01-281 does not authorize the assertion of different rights of action, with varying procedural rights, in the same proceeding, where to do so would allow the joining of actions at law and actions in equity in one suit with a jury trial. Plaintiff, by instituting the suit in equity, has waived its right to a jury trial on its legal claims. Builders Floor Serv. v. Kirby, 60 Va. Cir. 171, 2002 Va. Cir. LEXIS 261 (Fairfax County Sept. 27, 2002).

    Alternative pleading with wrongful death action permitted. —

    Because the responses sought by a hospital from a decedent’s survivor attempted to force the survivor to proceed solely under either § 8.01-50 or § 8.01-25 , which was contrary to § 8.01-281 , and improperly forced the survivor to elect his remedies, his answers to two requests for admissions were deemed sufficient. Richard Montgomery Bros. v. Rockingham Mem. Hosp., 75 Va. Cir. 85, 2008 Va. Cir. LEXIS 29 (Rockingham County Mar. 5, 2008).

    Property owners could alternatively plead trespass and negligence. —

    Developers’ demurrer on property owners’ claim for trespass to land was overruled because the owners could alternately plead trespass and negligence based on claims arising out of the same occurrence, and to have their case submitted to the jury on those alternative theories. Leydet v. Germel, Inc., 85 Va. Cir. 26, 2012 Va. Cir. LEXIS 161 (Chesapeake Jan. 5, 2012).

    Claims for future damages allowed. —

    Under § 8.01-281 , a client was permitted to bring her claims for legal malpractice based on the future payments she would have to make on default judgments entered against her while the attorney was representing her; the United States Court of Appeals for the Fourth Circuit’s decision to the contrary was not controlling. Lockney v. Vroom, 61 Va. Cir. 359, 2003 Va. Cir. LEXIS 263 (Norfolk Mar. 21, 2003).

    Separate trial allowed. —

    Since Virginia procedure permits a defendant to raise a potentially dispositive issue by a plea in bar and have it heard by the court separate from the ultimate trial by the fact finder, and since the Federal Employers’ Liability Act, 45 U.S.C.S. §§ 51-60, preserves a plaintiff’s right to have such a dispositive issue heard by a jury on the plaintiff’s request, the most equitable accommodation of the two conflicting rights is to allow defendant its separate plea in bar proceeding but to give plaintiff his jury trial on the factual issues presented by such plea. Therefore, the court granted the railroad’s request and directed a jury trial solely on the issue of whether the railroad employee’s claim to recover for silicosis he contracted while working for the railroad was barred by a release signed by the employee. Aswad v. Norfolk S. Ry. Co., 2006 Va. Cir. LEXIS 43 (Portsmouth Apr. 18, 2006).

    Contradictory theories of liability. —

    Although an administratrix was permitted to proceed both on a survivorship and a wrongful death claim, she could recover on only one theory pursuant to §§ 8.01-25 and 8.01-56 . There was no reason to prohibit her from arguing contradictory theories of liability pursuant to § 8.01-281 and Va. Sup. Ct. R. 1:4(k). Williams v. Med. Facilities of Am., 75 Va. Cir. 416, 2005 Va. Cir. LEXIS 380 (Virginia Beach Feb. 16, 2005).

    CASE NOTES

    Title insurance companies adequately pleaded such alternative facts and theories to allow their unjust enrichment claim to survive demurrer motions by settlement agents whom the companies retained under an agency agreement. Fid. Nat'l Title Ins. Co. v. Wash. Settlement Group, LLC, 87 Va. Cir. 77, 2013 Va. Cir. LEXIS 136 (Fairfax County Sept. 4, 2013).

    Article 3. Particular Equity Provisions.

    § 8.01-282. Motion to strike evidence.

    When a defendant moves the court to strike out all of the evidence, upon any grounds, and such motion is overruled by the court, such defendant shall not thereafter be precluded from introducing evidence in his behalf.

    History. Code 1950, § 8-122.1; 1954, c. 605; 1977, c. 617; 2005, c. 681.

    The 2005 amendments.

    The 2005 amendment by c. 681, effective January 1, 2006, deleted “In any chancery cause” preceding “when a defendant” and “and the procedure thereon shall be the same and shall have the same effect as the motion to strike the evidence in an action at law” following “behalf.”

    CASE NOTES

    When the sufficiency of a plaintiff ’s evidence is challenged by a motion to strike, a trial court must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the plaintiff and, moreover, when the challenge is made at the conclusion of the plaintiff ’s case-in-chief, the trial court should in every case overrule the motion where there is any doubt on the question. Shepherd v. Colton, 237 Va. 537 , 378 S.E.2d 828, 5 Va. Law Rep. 2262, 1989 Va. LEXIS 88 (1989).

    § 8.01-283. Answer in equity proceeding.

    There shall be no requirement that a sworn answer in a proceeding on an equitable claim be rebutted by the testimony of two witnesses.

    History. Code 1950, § 8-123; 1977, c. 617; 2005, c. 681.

    The 2005 amendments.

    The 2005 amendment by c. 681, effective January 1, 2006, rewrote the section.

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Accounts and Accounting, § 8.

    § 8.01-284. Repealed by Acts 2005, c. 681, cl. 2, effective January 1, 2006.

    Chapter 8. Process.

    Article 1. In General.

    § 8.01-285. Definition of certain terms for purposes of this chapter; process, return, statutory agent.

    For the purposes of this chapter:

    1. The term “process” shall be deemed to include notice;
    2. The term “return” shall be deemed to include the term “proof of service”;
    3. The term “statutory agent” means the Commissioner of the Department of Motor Vehicles and the Secretary of the Commonwealth, and the successors of either, when appointed pursuant to law for the purpose of service of process on the nonresident defined in subdivision 2 of § 8.01-307 ; and
    4. The term “person” includes an individual, his executor, administrator, or other personal representative, or a corporation, partnership, association or any other legal or commercial entity, whether or not a citizen or domiciliary of the Commonwealth and whether or not organized under the laws of the Commonwealth.

    History. 1977, c. 617; 1991, c. 672; 2005, c. 866.

    REVISERS’ NOTE

    In order to avoid undue repetition, § 8.01-285 defines terms that are used repeatedly throughout this chapter.

    Cross references.

    As to administrative establishment of paternity, see § 63.2-1913.

    As to pleadings and notice in proceedings involving trusts, see § 64.2-713 .

    The 2005 amendments.

    The 2005 amendment by c. 866 added subdivision 4.

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Divorce and Alimony, § 37.

    CASE NOTES

    “Process.” —

    Court was inclined to hold that the Alexandria Circuit Court had personal jurisdiction over debtor and that the failure to serve her with the summons and to mail her copies of the status conference notices and pretrial order, while irregular, did not deprive her of notice and an opportunity to be heard, which was the bedrock of due process under U.S. Const., Amend. V and XIV, where: (i) debtor was served with both the complaint and a notice of hearing; (ii) and, as a result of reviewing the case file, she received a copy of the summons 17 days prior to the trial and had actual knowledge of the trial date, at which she in fact appeared, argued, and testified. Allen v. Park Place Condo. Ass'n (In re Allen), No. 10-20094-SSM, No. 11-1059, 2011 Bankr. LEXIS 2217 (Bankr. E.D. Va. June 2, 2011).

    Virginia courts have made it abundantly clear that the operation of Virginia’s curing statute, § 8.01-288 , requires that the defendant have received court issued process, notwithstanding § 8.01-285 , which states that the term “process” shall be deemed to include notice. Campbell v. Hampton Rds. Bankshares, Inc., 925 F. Supp. 2d 800, 2013 U.S. Dist. LEXIS 24026 (E.D. Va. 2013).

    § 8.01-286. Forms of writs.

    Subject to the provisions of § 8.01-3 , the Supreme Court may prescribe the forms of writs, and where no such prescription is made, the forms of writs shall be the same as heretofore used.

    History. Code 1950, § 8-43; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-286 amends former § 8-43 to reference the controlling provisions of § 8.01-3 .

    Cross references.

    For rule of court prescribing form of summons and proof of service, see Rules 3:5 and 3:6.

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Process, § 9.

    § 8.01-286.1. Service of process; waiver, duty to save costs, request to waive, how served.

    1. In an action pending in general district court or circuit court, the plaintiff may notify a defendant of the commencement of the action and request that the defendant waive service of process as provided in subsection B. Any person subject to service as set forth in § 8.01-296 , 8.01-299 , §§ 8.01-301 through 8.01-306 or § 8.01-320 , with the exception of the Secretary of the Commonwealth and the Clerk of the State Corporation Commission, who receives actual notice of an action in the manner provided in this section, has a duty to avoid any unnecessary costs of serving process.
    2. The notice and request shall incorporate the request for waiver and shall:
      1. Be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer, director or registered agent authorized by appointment or law to receive service of process of a defendant subject to service under § 8.01-299 , §§ 8.01-301 through 8.01-306 or § 8.01-320 ;
      2. Be dispatched through first-class mail or other reliable means;
      3. Be accompanied by a copy of the motion for judgment, bill of complaint or other such initial pleading and identify the court in which it has been filed;
      4. Inform the defendant, by means of a form provided by Executive Secretary of the Supreme Court, of the consequences of compliance and failure to comply with the request;
      5. Set forth the date on which the request is sent;
      6. Allow the defendant a reasonable time to return the waiver, which shall be no more than 30 days from the date on which the request is sent, or 60 days from that date if the defendant’s address is outside the Commonwealth; and
      7. Provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.If a defendant fails to comply with a request for waiver made by a plaintiff, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure is shown.
    3. A defendant that, before being served with process, timely returns a waiver so requested is not required to serve a grounds of defense or other responsive pleading to the motion for judgment or other initial pleading until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant’s address was outside the Commonwealth.
    4. When the plaintiff files a waiver of service with the court, the action shall proceed as if a notice and motion for judgment or other initial pleading had been served at the time of filing the waiver, and no proof of service shall be required.
    5. The costs to be imposed on a defendant for failure to comply with a request to waive service of a summons shall include the costs subsequently incurred in effecting service under § 8.01-299 , §§ 8.01-301 through 8.01-306 or § 8.01-320 , together with the costs, including reasonable attorneys’ fees, of any motion required to collect the costs of service. This provision does not apply to the Commissioner of the Department of Motor Vehicles, the Secretary of the Commonwealth or the Clerk of the State Corporation Commission.
    6. A defendant who waives service of process pursuant to this section does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of that defendant, or to any other defense or objection other than objections based on inadequacy of process or service of process.

    History. 2005, c. 866; 2011, c. 766.

    Editor’s note.

    Acts 2011, c. 766, cl. 3 provides: “That the provisions of the first enactment of this act amending §§ 8.01-286.1 , 8.01-291 , 8.01-294 , 8.01-296 , 8.01-312 , 8.01-315 , and 8.01-327 , which relate to the use of electronic service of process, shall not become effective unless reenacted by the 2012 Session of the General Assembly.”

    The section has been set out above at the direction of the Virginia Code Commission. The provisions of Acts 2011, c. 766, cl. 3, do not apply to the amendment to subsection A as it does not relate to the use of electronic service of process.

    The 2011 amendments.

    Acts 2011 c. 766, in subsection A, inserted “general district court or” preceding “circuit court” near the beginning of the first sentence.

    Law Review.

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    For annual survey of cases dealing with product liability, including cases involving civil procedure, see 40 U. Rich. L. Rev. 269 (2005).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    CIRCUIT COURT OPINIONS

    Plaintiff not entitled to quash service of process. —

    Denial of a former patient’s request to quash service of process on health care providers was appropriate when the patient contended that the patient, who was proceeding in forma pauperis, did not wish for the health care providers to be served at the time when the patient filed the patient’s complaint. Rundle v. Carter, 91 Va. Cir. 177, 2015 Va. Cir. LEXIS 171 (Norfolk Sept. 17, 2015).

    Waiver not shown. —

    Reconsideration was proper because there was no evidence that a mother waived service under § 8.01-286.1 , and the father’s mere mailing of the pleadings and Va. Sup. Ct. R. 4:15(e) certification were insufficient to constitute proper service under § 8.01-296 . Natal v. Natal, 86 Va. Cir. 278, 2012 Va. Cir. LEXIS 35 (Fairfax County Feb. 28, 2012).

    § 8.01-287. How process to be served.

    Upon commencement of an action, process shall be served in the manner set forth in this chapter and by the Rules of the Supreme Court.

    History. Code 1950, § 8-56; 1952, c. 77; 1954, c. 543; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-287 simplifies former § 8-56.

    § 8.01-288. Process received in time good though neither served nor accepted.

    Except for process commencing actions for divorce or annulment of marriage or other actions wherein service of process is specifically prescribed by statute, process which has reached the person to whom it is directed within the time prescribed by law, if any, shall be sufficient although not served or accepted as provided in this chapter.

    History. Code 1950, § 8-53; 1977, c. 617; 1987, c. 594; 1988, c. 583.

    REVISERS’ NOTE

    Section 8.01-288 qualifies § 8.01-287 by stating that any process which reaches the person to whom it is directed shall be sufficient even though it has not been served or accepted as specified in this chapter or the Rules of Court. Section 8.01-288 amends former § 8-53 which applied this concept but only to individuals. Section 8.01-288 applies to every type defendant, e.g., a corporation, not just to an individual, who is a defendant. The exception provided for divorce and annulment actions parallels the mandate of Rules 2:4 and 2:9.

    Law Review.

    For note, “Obtaining Jurisdiction Over Corporations in Virginia,” see 12 U. Rich. L. Rev. 369 (1978).

    For 1985 survey of Virginia civil procedure and practice, see 19 U. Rich. L. Rev. 679 (1985).

    For 1987 survey of Virginia civil procedure and practice, see 21 U. Rich. L. Rev. 667 (1987).

    For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Administrative Law, § 20.

    CASE NOTES

    This section cures defective service when process actually reaches the necessary person within the prescribed time limit. This cure extends to actions unless the particular statute specifically provides it will not apply. Bendele ex rel. Bendele v. Commonwealth, Dep't of Medical Assistance Servs., 29 Va. App. 395, 512 S.E.2d 827, 1999 Va. App. LEXIS 194 (1999).

    Defendant’s actual notice of habitual offender proceeding, received after entry of the related adjudication order, did not excuse the Commonwealth from complying with the statute regarding notice by publication; thus, the Commonwealth could not rely on § 8.01-288 to cure defect in its notice of publication, but since the Commonwealth relied on the presumption of regularity to establish that the underlying order adjudicating defendant as a habitual offender conformed to law and defendant did not rebut that presumption, defendant’s conviction for driving with a revoked license while a habitual offender pursuant to § 46.2-357 was affirmed. Powell v. Commonwealth, 2007 Va. App. LEXIS 101 (Va. Ct. App. Mar. 13, 2007).

    Defective service cured when process received. —

    The denial of the motion to quash service of process was proper because the process was actually received by the corporation’s registered agent even though process had not been properly served; the language of § 8.01-288 evidences a legislative intent to exclude service of process from its saving provision only in certain limited instances, furthermore use of the word “may” in § 8.01-299 indicates that some other kind of service might be proper. Frey v. Jefferson Homebuilders, Inc., 251 Va. 375 , 467 S.E.2d 788, 1996 Va. LEXIS 26 (1996).

    Irregular service of process did not deny due process. —

    Court was inclined to hold that the Alexandria Circuit Court had personal jurisdiction over debtor and that the failure to serve her with the summons and to mail her copies of the status conference notices and pretrial order, while irregular, did not deprive her of notice and an opportunity to be heard, which was the bedrock of due process under U.S. Const., Amend. V and XIV, where: (i) debtor was served with both the complaint and a notice of hearing; (ii) and, as a result of reviewing the case file, she received a copy of the summons 17 days prior to the trial and had actual knowledge of the trial date, at which she in fact appeared, argued, and testified. Allen v. Park Place Condo. Ass'n (In re Allen), No. 10-20094-SSM, No. 11-1059, 2011 Bankr. LEXIS 2217 (Bankr. E.D. Va. June 2, 2011).

    Court-issued process required. —

    Virginia courts have made it abundantly clear that the operation of Virginia’s curing statute, § 8.01-288 , requires that the defendant have received court issued process, notwithstanding § 8.01-285 , which states that the term “process” shall be deemed to include notice. Campbell v. Hampton Rds. Bankshares, Inc., 925 F. Supp. 2d 800, 2013 U.S. Dist. LEXIS 24026 (E.D. Va. 2013).

    Section applicable to petitions for judicial review of decisions of the Virginia Employment Commission. —

    Petitions for judicial review under former subsection B of § 60.2-500 [see now subsection C] must comply with the requirements of Chapter 8 of Title 8.01 (§ 8.01-285 et seq.) and Rule 2A of the Rules of the Supreme Court; the “curing statute” (§ 8.01-288 ) applies to the service of petitions under former subsection B of § 60.2-500 [see now subsection C] because this section does not specifically prescribe a particular method of service. VEC v. Porter-Blaine Corp., 27 Va. App. 153, 497 S.E.2d 889, 1998 Va. App. LEXIS 226 (1998).

    Insufficiency of petition for judicial review of Virginia Employment Commission’s decision cured by this section. —

    Circuit court did not err when it denied Virginia Employment Commission’s motion to dismiss petition for judicial review due to insufficient service. Although service of petition upon the Commissioner by overnight mail failed to comply with the requirements for personal service set forth in Chapter 8 of Title 8.01, the commissioner actually received the two copies of the petition by mail within the time limits prescribed by law, making service sufficient under § 8.01-288 . VEC v. Porter-Blaine Corp., 27 Va. App. 153, 497 S.E.2d 889, 1998 Va. App. LEXIS 226 (1998).

    Delivery of copy to servant held valid. —

    Where the deputy marshal served the notice of the motion of judgment upon the defendant by leaving a copy thereof at his residence with the servant who answered the door, and made return that he had left a copy at defendant’s residence with his wife, more than 15 days before the return day, the attorney for defendant going to the deputy marshal and asking that he change the return to show delivery to the servant, motion to dismiss was denied on the ground that the notice had reached its destination within the time prescribed by law. The fact that the attorney for defendant, more than 15 days before the return day, was requesting that the deputy marshal change his return, was sufficient proof that the notice had reached its destination within the time prescribed by law. Eley v. Gamble, 75 F.2d 171, 1935 U.S. App. LEXIS 2889 (4th Cir. 1935) (decided under prior law).

    Timely service held not shown. —

    Where the only evidence of the time of receipt of process offered by plaintiffs, other than an undated return receipt, was the testimony of their own counsel that an employee of defendant insurer had telephoned him “two days before the return day,” even if counsel’s testimony had been admitted into evidence, it would not have proved that the letter was received in the time required by this section and § 16.1-82 . Davis v. American Interinsurance Exch., 228 Va. 1 , 319 S.E.2d 723, 1984 Va. LEXIS 167 (1984).

    Section not applicable to juvenile cases. —

    This section is not applicable to the service of a summons under § 16.1-264 , which provides for service in juvenile cases, since it excepts process commencing actions wherein service of process is specifically prescribed by statute. Garritty v. Virginia Dep't of Social Servs. ex rel. Sinift, 11 Va. App. 39, 396 S.E.2d 150, 1990 Va. App. LEXIS 159 (1990).

    Savings provisions of this section did not apply when party mailed simple copy of the petition for appeal that she had filed to the agency. That was not process. Bendele ex rel. Bendele v. Commonwealth, Dep't of Medical Assistance Servs., 29 Va. App. 395, 512 S.E.2d 827, 1999 Va. App. LEXIS 194 (1999).

    Trial court erred in denying an ambulance service’s motion to vacate a default judgment pursuant to § 8.01-428 entered in favor of an injured party, as the service was not served with the notice portion of the motion for judgment required to be served under Rule 3:3(c) [see now Rule 3:5], and trial court lacked jurisdiction to enter the default judgment; this section did not cure the defective process, as the statute cured only defects in the manner process was served, not defects in the process itself, and notwithstanding the service’s actual notice of the proceedings, the trial court lacked jurisdiction to enter the default judgment. Lifestar Response of Md., Inc. v. Vegosen, 267 Va. 720 , 594 S.E.2d 589, 2004 Va. LEXIS 64 (2004).

    Service of process not found. —

    Appeal of Virginia Board for Contractors’s revocation of appellant’s license was properly dismissed, as his mailing of a “courtesy copy” of a petition for appeal to the Board’s Secretary did not constitute service of process under Va. Sup. Ct. R. 2A:4(a), nor did it satisfy the relaxed requirements of the curative statute, § 8.01-288 . Muse Constr. Group, Inc. v. Commonwealth Bd. for Contrs., 61 Va. App. 125, 733 S.E.2d 690, 2012 Va. App. LEXIS 365 (2012).

    Because a father obtained service on the wrong person, the statute did not cure the defective service; the father obtained service of process on the Virginia Secretary of Health and Human Resources, but he was not the agency secretary nor a party to the action. Washington v. Caroline Cty. Dep't of Soc. Servs., 71 Va. App. 308, 835 S.E.2d 913, 2019 Va. App. LEXIS 284 (2019).

    CIRCUIT COURT OPINIONS

    Defect in process cured by notice. —

    Service of process is not required to commence a JAMS arbitration proceeding, but even assuming it was, where corporation had actual notice of the arbitration proceedings, under § 8.01-288 this was sufficient to cure any defect in service. Hilton v. Quantum Commun. Group, Inc., 59 Va. Cir. 163, 2002 Va. Cir. LEXIS 83 (Fairfax County June 5, 2002).

    Where an insurer was properly served, but the court clerk failed to file the return within 72 hours, as required by § 8.01-325 , and the insurer thereafter failed to timely respond to proper notice as required by Va. Sup. Ct. Rule 1:1, the insurer did not direct the court to any law that would either require or grant discretion to modify the default judgment; in any event, § 8.01-288 cured any possible defect in the process return. Remley v. Griffin, 2004 Va. Cir. LEXIS 125 (Portsmouth June 28, 2004), aff'd, 270 Va. 209 , 618 S.E.2d 316, 2005 Va. LEXIS 75 (2005).

    Defendant’s motion to vacate a judgment entered against him was denied because although the manner of service appeared to have been defective, the defect was remedied under the curing statute, § 8.01-288 ; defendant conceded that he received process prior to the return date of an alias warrant in detinue, and no particular method of service was prescribed for delivery of such a warrant under § 8.01-114 . Singleton v. Suplizio, 74 Va. Cir. 177, 2007 Va. Cir. LEXIS 284 (Prince William County Sept. 21, 2007).

    In a medical malpractice case, mailing service to a doctor’s place of employment was a reasonably calculated effort to reach him, regardless of whether a hospital actually signed his paychecks, and this was borne out by the fact that the service mailed to the hospital did eventually reach the doctor. Whatever defects existed in the method of service, actual delivery made service sufficient. Branch v. Augusta Health Care, Inc., 92 Va. Cir. 126, 2015 Va. Cir. LEXIS 206 (Augusta County Aug. 21, 2015).

    Savings provisions of this section held inapplicable. —

    First defendant’s contention that its mailing a cross-claim to counsel for the second defendant and to the Secretary of the Commonwealth within the prescribed period was “sufficient” and thus satisfied the “catch-all” provision of § 8.01-288 failed, because (1) the second defendant, not its counsel, was the necessary party to be served; and (2) § 8.01-288 cured defective service when process actually reached the necessary person, and although the first defendant may have mailed the cross-claim to the Secretary with the intention that it be addressed to the second defendant, there was no evidence that the latter actually received the cross-claim. Lesner Pointe Condo. Ass'n v. Harbour Point Bldg. Corp., 61 Va. Cir. 609, 2002 Va. Cir. LEXIS 424 (Virginia Beach Apr. 10, 2002) (see also,).Bd. of Dirs. of the Lesner Pointe Condo. on the Chesapeake Bay Ass'n v. Harbour Point Bldg. Corp., 2002 Va. Cir. LEXIS 421 (Virginia Beach Oct. 25, 2002).

    Service was void because plaintiff did not post substituted service at defendant’s “usual place of abode” as required by § 8.01-296 ; the cure statute was unavailing because defendant did not actually receive the process until over one year after plaintiff filed her motion for judgment, and plaintiff failed to show she used due diligence in attempting to obtain service. Drewry v. Nottingham, 64 Va. Cir. 269, 2004 Va. Cir. LEXIS 182 (Norfolk Mar. 22, 2004).

    Timely service not shown. —

    Defendant’s receipt of plaintiff’s documents from defendant’s house-sitter on July 5, 2007, did not cure the defective service, which involved a process server handing the documents to defendant’s house-sitter, even if there was due diligence by plaintiff, because plaintiff’s motion for judgment was filed on June 30, 2006, and the receipt occurred after the one-year period under § 8.01-275.1 elapsed on July 2, 2007. Jamerson v. Laub, 74 Va. Cir. 347, 2007 Va. Cir. LEXIS 300 (Rockbridge County Nov. 8, 2007).

    Evidentiary hearing required. —

    Because a return of service contained factual statements that arguably contradicted one another, an evidentiary hearing was needed to decide whether process actually reached a defendant within the prescribed time; the court had to determine whether § 8.01-288 could cure any defect in the manner in which process was served. Corbin v. Frazier, 2006 Va. Cir. LEXIS 18 (Madison County Jan. 30, 2006).

    Waiver of process. —

    Trial court, in a divorce suit, refused to accept husband’s deposition evidence that was taken before service upon the husband’s wife was completed and in a venue other than the one in which the suit was filed or any of the parties resided or was employed, despite the wife’s signed acknowledgment of a waiver of her rights. Sakowski v. Sakowski, 65 Va. Cir. 249, 2004 Va. Cir. LEXIS 211 (Roanoke July 24, 2004).

    § 8.01-289. No service of process on Sunday; exceptions.

    No civil process shall be served on Sunday, except in cases of persons escaping out of custody, or where it is otherwise expressly provided by law.

    History. Code 1950, § 8-4.2; 1977, c. 617.

    Cross references.

    As to issue and execution of attachment on Sunday, see § 8.01-542 .

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Process, § 16.

    Article 2. How Process Is Issued.

    § 8.01-290. Plaintiffs required to furnish full name and last known address of defendants, etc.

    Upon the commencement of every action, the plaintiff shall furnish in writing to the clerk or other issuing officer the full name and last known address of each defendant and if unable to furnish such name and address, he shall furnish such salient facts as are calculated to identify with reasonable certainty such defendant. The clerk or other official whose function it is to issue any such process shall note in the record or in the papers the address or other identifying facts furnished. Failure to comply with the requirements of this section shall not affect the validity of any judgment.

    History. Code 1950, § 8-46.1; 1962, c. 10; 1977, c. 617.

    Cross references.

    For rules of court concerning how requirements of this section may be met, see Rule 3:2.

    Michie’s Jurisprudence.

    For related discussion, see 7A M.J. Equity, § 52.

    CASE NOTES

    Anonymous defendant. —

    It is not uncommon for a plaintiff, under § 8.01-290 , to use the “John Doe” pleading style to initiate a lawsuit against a defendant whose identity is unknown at the time the lawsuit is filed for the purpose of subsequently using discovery to learn the identity of the defendant so that proper service of process on the defendant can be obtained. Am. Online, Inc. v. Nam Tai Elecs., Inc, 264 Va. 583 , 571 S.E.2d 128, 2002 Va. LEXIS 157 (2002).

    Service on agency secretary. —

    Trial court did not err in denying state regulation challenger’s motion for summary judgment, in dismissing the state regulation challenger’s petition for appeal, and in awarding sanctions, including attorney fees, to the state commission, as the state regulation challenger did not serve his petition on the “agency secretary” and did not furnish the clerk of court, in writing, the name and address of each defendant even though he knew from previous, similar litigation that he was required to do so. Bender v. Va. Marine Res. Comm'n, 2003 Va. App. LEXIS 253 (Va. Ct. App. Apr. 29, 2003).

    CIRCUIT COURT OPINIONS

    Demurrer as to “John Doe” claims was sustained with leave granted to corporation plaintiff to re-plead within 21 days where the corporation maintained that it did not know, and could not identify, persons who altered the battery system on the fire truck; corporation needed a more sound rationale. Kovatch Mobile Equip. Corp. v. Frederick County Maint. Dep't, 62 Va. Cir. 52, 2003 Va. Cir. LEXIS 71 (Roanoke May 8, 2003).

    § 8.01-291. Copies to be made.

    The clerk issuing any such process unless otherwise directed shall deliver or transmit therewith as many copies thereof as there are persons named therein on whom it is to be served.

    History. Code 1950, § 8-57; 1977, c. 617.

    Cross references.

    For rule of court requiring the plaintiff to furnish clerk with as many copies of complaint as there are defendants to be served, see Rule 3:4.

    For rule of court requiring clerk to attach copy of complaint to each summons on each defendant in a civil action, see Rule 3:5.

    § 8.01-292. To whom process directed and where executed.

    Process from any court, whether original, mesne, or final, may be directed to the sheriff of, and may be executed in, any county, city, or town in the Commonwealth.

    History. Code 1950, § 8-44; 1954, c. 333; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-292 modifies former law to allow unrestricted statewide service of process. Former § 8-44 permitted such service generally, but where venue was based on where the cause of action arose (former § 8-39), with certain exceptions former § 8-47 restricted process to the bailiwick of the court wherein the action was filed. This restriction is eliminated.

    Cross references.

    For rules of court as to complaints and summons, see Rules 3:4 and 3:5.

    For rule as to proof of service and return thereof, see Rule 3:6.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 45.

    CASE NOTES

    Editor’s note.

    This section is qualified by § 8.01-299 , relating to the service of process upon a corporation. Pereira v. Davis Fin. Agency, 146 Va. 215 , 135 S.E. 823 , 1926 Va. LEXIS 324 (1926).

    This section is not applicable to proceedings in the appellate court. It deals with process, rules and pleadings, and is only applicable to proceedings in a trial court. D.F. Tyler Corp. v. Evans, 156 Va. 576 , 159 S.E. 393 , 1931 Va. LEXIS 213 (1931), overruled, Fitzgerald v. Holton, 199 Va. 368 , 99 S.E.2d 615, 1957 Va. LEXIS 199 (1957).

    Original mesne and final process are on same footing. Johnston v. Pearson, 121 Va. 453 , 93 S.E. 640 , 1917 Va. LEXIS 49 (1917).

    Process may be served by person other than officer to whom directed. Crosswhite v. Barnes, 139 Va. 471 , 124 S.E. 242 , 1924 Va. LEXIS 124 (1924); Federal Land Bank v. Birchfield, 173 Va. 200 , 3 S.E.2d 405, 1939 Va. LEXIS 188 (1939).

    Necessity for issuance before return day. Noell v. Noell, 93 Va. 433 , 25 S.E. 242 , 1896 Va. LEXIS 93 (1896).

    Omission of word “next” held immaterial. —

    A writ issued November 25, 1908, returnable to the third Monday in January, sufficiently appears to be returnable within 90 days from its date. The omission of the word “next” after January was immaterial. Arminius Chem. Co. v. White's Adm'x, 112 Va. 250 , 71 S.E. 637 , 1911 Va. LEXIS 79 (1911).

    The doctrine of waiver has no application to a void process. Johnston v. Pearson, 121 Va. 453 , 93 S.E. 640 , 1917 Va. LEXIS 49 (1917).

    Article 3. Who and Where to Serve Process.

    § 8.01-293. Authorization to serve process, capias or show cause order; execute writ of possession or eviction and levy upon property.

    1. The following persons are authorized to serve process:
      1. The sheriff within such territorial bounds as described in § 8.01-295 ;
      2. Any person of age 18 years or older and who is not a party or otherwise interested in the subject matter in controversy. For purposes of this subdivision, an investigator employed by an attorney for the Commonwealth or employed by the Indigent Defense Commission, who within 10 years immediately prior to being employed by the attorney for the Commonwealth or Indigent Defense Commission was an active law-enforcement officer as defined in § 9.1-101 in the Commonwealth and retired or resigned from his position as a law-enforcement officer in good standing, shall not be considered to be a party or otherwise interested in the subject matter in controversy while engaged in the performance of his official duties, provided that the sheriff in the jurisdiction where process is to be served has agreed that such investigators may serve process. If a sheriff has agreed that such investigators may serve process, then investigators employed by either an attorney for the Commonwealth or the Indigent Defense Commission may serve process. However, in any case in which custody or visitation of a minor child or children is at issue and a summons is issued for the attendance and testimony of a teacher or other school personnel who is not a party to the proceeding, if such summons is served on school property, it shall be served only by a sheriff or his deputy; or
      3. A private process server. For purposes of this section, “private process server” means any person 18 years of age or older and who is not a party or otherwise interested in the subject matter in controversy, and who charges a fee for service of process.Whenever in this Code the term “officer” or “sheriff” is used to refer to persons authorized to make, return or do any other act relating to service of process, such term shall be deemed to refer to any person authorized by this section to serve process.
    2. Notwithstanding any other provision of law (i) only a sheriff or high constable may execute an order or writ of possession for personal, real or mixed property, including a writ of eviction arising out of an action in unlawful entry and detainer or ejectment; (ii) any sheriff, high constable or law-enforcement officer as defined in § 9.1-101 of the Code of Virginia may serve any capias or show cause order; and (iii) only a sheriff, the high constable for the City of Norfolk or Virginia Beach or a treasurer may levy upon property.

    History. Code 1950, §§ 8-52, 8-54; 1954, c. 543; 1960, c. 16; 1968, c. 484; 1977, c. 617; 1981, c. 110; 1986, c. 275; 1996, cc. 501, 608; 1997, c. 820; 2002, c. 342; 2004, cc. 210, 588; 2011, c. 766; 2018, c. 238; 2019, cc. 180, 700.

    REVISERS’ NOTE

    Section 8.01-293 combines portions of former §§ 8-52 and 8-54.

    The former proviso of subsection 2, relating to suits for annulment and divorce, retained from former § 8-54 the requirement that service of original process in divorce suits be by the sheriff. Former law was changed to the extent that other service in divorce suits, e.g., notice for the taking of depositions where the other party was not represented by counsel, was not required to be served by the sheriff. The definition of the term “sheriff” in § 8.01-2 eliminates any need for the exception clause of former § 8-54 (i.e., the reference to § 15.1-77).

    Cross references.

    As to acceptance of service of process generally, see § 8.01-327 .

    As to the establishment of compulsory minimum entry level, in-service and advanced training standards for deputy sheriffs designated to serve process pursuant to the provisions of this section, see § 9.1-102 .

    As to service in divorce or annulment actions, see § 20-99.1:1 .

    For rules of court relating to summons and proof of service, see Rules 3:5 and 3:6.

    The 2002 amendments.

    The 2002 amendment by c. 342, rewrote the section catchline, which formerly read: “Who to serve process”; and in subsection B, inserted “or high constable” in clause (i), and inserted “high constable” in clause (ii).

    The 2004 amendments.

    The 2004 amendment by c. 210 substituted “18” for “eighteen” in subdivision A 2 and deleted “criminal” preceding “show cause order” in clause (ii) of subsection B.

    The 2004 amendment by c. 588 added the last sentence in the first paragraph of subdivision A 2 and made a minor stylistic change.

    The 2011 amendments.

    The 2011 amendment by c. 766, added subdivision A 3 and made related changes.

    The 2018 amendments.

    The 2018 amendment by c. 238 added the second and third sentences in subdivision A 2.

    The 2019 amendments.

    The 2019 amendments by cc. 180 and 700 are identical, and substituted “a writ of eviction” for “an order or writ of possession” in subsection B.

    Law Review.

    For 1987 survey of Virginia civil procedure and practice, see 21 U. Rich. L. Rev. 667 (1987).

    For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Divorce and Alimony, § 37.

    CASE NOTES

    Service by publication. —

    Divorce court had not obtained personal jurisdiction over a husband where the wife’s service by order of publication in a local newspaper appeared to have had no realistic possibility of ever reaching him, and she did not demonstrate why the most inferior method of service was the best that she could have done. The wife’s ineffectual method of constructive service by order of publication revealed a lack of due diligence rendering the entire exercise inferior to the substituted-service option available under the long-arm statute, § 8.01-293 . Evans v. Evans, 300 Va. 134 , 860 S.E.2d 381, 2021 Va. LEXIS 84 (2021).

    Reading the various service-of-process statutes as a harmonious whole, the legislative intent is unmistakable. Service of process under Virginia statutes involves a cascading series of efforts designed to provide due process by ensuring that the method of notice be reasonably calculated to reach the intended recipient and be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. Consistent with the Commonwealth’s common-law traditions, statutory hierarchies of methods of service, primus personal, deinde substituted, deinde constructive, are best understood not as alternatives but successive methods, ranging from most effective notice to least effective. Evans v. Evans, 300 Va. 134 , 860 S.E.2d 381, 2021 Va. LEXIS 84 (2021).

    OPINIONS OF THE ATTORNEY GENERAL

    Levy by sheriff against personal property when serving writs of fieri facias. —

    Writs of fieri facias, debtor interrogatories and garnishments are distinct, but related proceedings, so that, although sheriff or other executing officer may be required to levy on the tangible personal property of a judgment debtor when executing a writ of fieri facias, no such requirement is imposed when serving a Summons for Interrogatories or Garnishment Summons. See opinion of Attorney General to The Honorable L.J. Ayers, III, Sheriff for Amherst County, 10-075, (02/04/11).

    § 8.01-294. Sheriff to get from clerk’s office process and other papers; return of papers; effect of late return.

    Every sheriff who attends a court shall, every day when the clerk’s office is open for business, go to such office and receive all process, and other papers to be served by him, and give receipts therefor, unless he has received notice from a regular employee of the clerk’s office that there are no such papers requiring service and shall return all papers within 72 hours of service, except when such returns would be due on a Saturday, Sunday, or legal holiday. In such case, the return is due on the next day following such Saturday, Sunday, or legal holiday.

    Failure to make return of service of process by anyone authorized to serve process under § 8.01-293 within the time specified in this section shall not invalidate any service of process or any judgment based thereon. In the event a late return prejudices a party or interferes with the court’s administration of a case, the court may, in its discretion, continue the case, require additional or substitute service of process, or take such other action or enter such order as the court deems appropriate under the circumstances.

    History. Code 1950, § 8-49; 1954, c. 545; 1977, c. 617; 1978, c. 831; 2002, c. 65; 2004, c. 627.

    REVISERS’ NOTE

    The requirement that the sheriff go to the clerk’s office to receive process every day that the clerk’s office is open modifies the requirement of once per week in former § 8-49.

    Cross references.

    For rule of court relating to the summons, see Rule 3:5.

    The 2002 amendments.

    The 2002 amendment by c. 65 added the present second paragraph.

    The 2004 amendments.

    The 2004 amendment by c. 627 substituted “72” for “seventy-two” in the first sentence of the first paragraph and inserted “by anyone authorized to serve process under § 8.01-293 ” in the first sentence of the second paragraph.

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Process, § 7.

    CASE NOTES

    Not applicable to proceedings in the appellate court. D.F. Tyler Corp. v. Evans, 156 Va. 576 , 159 S.E. 393 , 1931 Va. LEXIS 213 (1931), overruled, Fitzgerald v. Holton, 199 Va. 368 , 99 S.E.2d 615, 1957 Va. LEXIS 199 (1957) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Construction with other law. —

    Guarantor’s motion to set aside a default judgment and to quash a return of service was denied, as: (1) he failed to allege that the statute allowing constructive service by posting was not followed; (2) the saving language of § 8.01-294 prohibited the court from setting aside the judgment; and (3) he failed to show any prejudice by the late return of service, nor did he allege that he did not receive actual notice, that he did not understand service was meant for him, or that the notation of “et al” was prejudicial to his position. Edward Don & Co. v. Istriana, Inc., 71 Va. Cir. 109, 2006 Va. Cir. LEXIS 106 (Fairfax County June 8, 2006).

    § 8.01-295. Territorial limits within which sheriff may serve process in his official capacity; process appearing to be duly served.

    The sheriff may execute such process throughout the political subdivision in which he serves and in any contiguous county or city. If the process appears to be duly served, and is good in other respects, it shall be deemed valid although not directed to an officer, or if directed to any officer, though executed by some other person. This section shall not be construed to require the sheriff to serve such process in any jurisdiction other than in his own.

    History. Code 1950, § 8-50; 1977, c. 617; 1982, c. 674.

    REVISERS’ NOTE

    Former § 8-50 only permitted a county sheriff to execute process outside of the political subdivision in which he served and then only in cities contiguous to his county. Section 8.01-295 amends the section such that the territorial limits for service of process by a sheriff of either a county or a city is expanded to include “any contiguous county or city.”

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 45.

    OPINIONS OF THE ATTORNEY GENERAL

    A county sheriff may not serve persons who reside in independent cities located within the county with warrants for crimes committed in the county. See opinion of Attorney General to The Honorable R. Steven Landes, Member, House of Delegates, 00-003 (3/16/00).

    Article 4. Who to Be Served.

    § 8.01-296. Manner of serving process upon natural persons.

    Subject to the provisions of § 8.01-286.1 , in any action at law or in equity or any other civil proceeding in any court, process, for which no particular mode of service is prescribed, may be served upon natural persons as follows:

    1. By delivering a copy thereof in writing to the party in person; or
    2. By substituted service in the following manner:
      1. If the party to be served is not found at his usual place of abode, by delivering a copy of such process and giving information of its purport to any person found there, who is a member of his family, other than a temporary sojourner or guest, and who is of the age of 16 years or older; or
      2. If such service cannot be effected under subdivision 2 a, then by posting a copy of such process at the front door or at such other door as appears to be the main entrance of such place of abode, provided that not less than 10 days before judgment by default may be entered, the party causing service or his attorney or agent mails to the party served a copy of such process and thereafter files in the office of the clerk of the court a certificate of such mailing. In any civil action brought in a general district court, the mailing of the application for a warrant in debt or affidavit for summons in unlawful detainer or other civil pleading or a copy of such pleading, whether yet issued by the court or not, which contains the date, time and place of the return, prior to or after filing such pleading in the general district court, shall satisfy the mailing requirements of this section. In any civil action brought in a circuit court, the mailing of a copy of the pleadings with a notice that the proceedings are pending in the court indicated and that upon the expiration of 10 days after the giving of the notice and the expiration of the statutory period within which to respond, without further notice, the entry of a judgment by default as prayed for in the pleadings may be requested, shall satisfy the mailing requirements of this section and any notice requirement of the Rules of Court. Any judgment by default entered after July 1, 1989, upon posted service in which proceedings a copy of the pleadings was mailed as provided for in this section prior to July 1, 1989, is validated.
      3. The person executing such service shall note the manner and the date of such service on the original and the copy of the process so delivered or posted under this subdivision and shall effect the return of process as provided in §§ 8.01-294 and 8.01-325 .
    3. If service cannot be effected under subdivisions 1 and 2, then by order of publication in appropriate cases under the provisions of §§ 8.01-316 through 8.01-320 .
    4. The landlord or his duly authorized agent or representative may serve notices required by the rental agreement or by law upon the tenant or occupant under a rental agreement that is within the purview of Chapter 14 (§ 55.1-1400 et seq.) of Title 55.1.

    History. Code 1950, § 8-51; 1954, c. 333; 1977, c. 617; 1989, cc. 518, 524; 1990, cc. 729, 767; 1996, c. 538; 2005, c. 866; 2008, c. 489.

    REVISERS’ NOTE

    Section 8.01-296 generally incorporates former § 8-51 and makes it clear that the section applies only to service of process on natural persons. Subdivision 3 interrelates the publication provisions of §§ 8.01-316 through 8.01-320 with the provisions of subdivisions 1 and 2 regarding personal and substituted service and stipulates when service by publication is available on natural persons.

    To increase the likelihood of actual notice, § 8.01-296 revises former § 8-51 to require that before a default judgment can be entered, process must be mailed not less than ten days prior to the entry of judgment, to the defendant’s last known address, in addition to posting at his abode, when personal service or service on a family member cannot be obtained. This changes former § 8-51 which requires only the posting of process on the front door of the defendant’s usual place of abode as a means of substituted service.

    Cross references.

    As to service of an administrative support order on an out-of-state obligor if the obligor and obligee maintained a matrimonial domicile within the Commonwealth, see § 63.2-1903 G.

    As to service of notice of administrative support order, see § 63.2-1916. As to service of notice of review of administrative support orders, see § 63.2-1921. As to service on employer of an order for income withholding incident to an administrative support order, see § 63.2-1923. As to service of hearing officer’s decision on appeal of order to withhold in connection with support order, see § 63.2-1929. As to service of decision on administrative hearing on support debt, see § 63.2-1941.

    Editor’s note.

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “Chapter 14 ( § 55.1-1400 et seq.) of Title 55.1” for “Chapter 13 ( § 55-217 et seq.) of Title 55.”

    The 2005 amendments.

    The 2005 amendment by c. 866 inserted “Subject to the provisions of § 8.01-286.1 ” at the beginning of the first paragraph; deleted “of this section” following “subdivisions 1 and 2” in subdivision 3; and made minor stylistic changes.

    The 2008 amendments.

    The 2008 amendment by c. 489 added subdivision 4.

    Law Review.

    For note, “Defects in Process or Service in Virginia: Void or Voidable,” see 44 Va. L. Rev. 654 (1958).

    For annual survey article, “Family Law,” see 48 U. Rich. L. Rev. 135 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 48.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Presumption of proper service. —

    Court could presume that officer personally served defendant in compliance with subdivision (1) of this section, where adjudication order reflected that defendant had been served. Tyson v. Commonwealth, No. 2965-98-3 (Ct. of Appeals Mar. 28, 2000).

    Terms allowing constructive service must be strictly followed. —

    Statutes authorizing constructive service of process are to be complied with strictly. National Trust for Historic Preservation v. 1750 K Inv. Partnership, 100 F.R.D. 483, 1984 U.S. Dist. LEXIS 20412 (E.D. Va. 1984), aff'd, 755 F.2d 929 (4th Cir. 1985), aff'd, 755 F.2d 927 (4th Cir. 1985).

    Failure to mail copy of complaint to defendant prior to entry of default. —

    Where the plaintiff does not mail a copy of the complaint to the defendant prior to the entry of a default judgment, the service is not complete and therefore is invalid; in such instance, the court never has in personam jurisdiction over the defendant and a judgment in plaintiff’s favor must be vacated. National Trust for Historic Preservation v. 1750 K Inv. Partnership, 100 F.R.D. 483, 1984 U.S. Dist. LEXIS 20412 (E.D. Va. 1984), aff'd, 755 F.2d 929 (4th Cir. 1985), aff'd, 755 F.2d 927 (4th Cir. 1985).

    Service of process was proper under § 8.01-329 A of long-arm statute. —

    Where personal jurisdiction was authorized by the Virginia long-arm statute, § 8.01-328.1 , and defendant was served in the manner provided for in Chapter 8 (§ 8.01-285 et seq.) of Title 8.01, namely under subdivision 2 a of this section, service of process was proper under § 8.01-329 A of the Virginia long-arm statute, and defendant’s motion to dismiss for lack of jurisdiction over the person was denied. Frederick v. Koziol, 727 F. Supp. 1019, 1990 U.S. Dist. LEXIS 241 (E.D. Va. 1990).

    Because substituted service is sufficient to give a court personal jurisdiction over a party, where the evidence establishes service on a family member at the party’s usual place of abode, the court has authority to adjudicate that party’s contempt and award sanctions. Koons v. Crane, 72 Va. App. 720, 853 S.E.2d 524, 2021 Va. App. LEXIS 13 (2021).

    Husband was properly served with a show cause rule because he was a nonresident, and thus, the Virginia long-arm statute applied, and substituted service of the show cause rule was valid; the long-arm statute did not require personal service on the nonresident, and substituted service in Washington was sufficient to give the Virginia court personal jurisdiction over the husband and satisfy the requirement that a show cause rule be “served on the person.” Koons v. Crane, 72 Va. App. 720, 853 S.E.2d 524, 2021 Va. App. LEXIS 13 (2021).

    Substituted service constituted constructive notice insufficient under § 46.2-357. —

    Serving the habitual offender order on defendant’s father at defendant’s usual place of abode, even if such service may have conformed with the requirements of subdivision 2 a of this section, constituted a form of constructive notice only. Constructive notice does not satisfy the statutory requirement contained in § 46.2-357, the requirement that defendant “knew his license had been suspended,” that he had been declared to be an habitual offender and ordered not to drive. Reed v. Commonwealth, 15 Va. App. 467, 424 S.E.2d 718, 9 Va. Law Rep. 657, 1992 Va. App. LEXIS 308 (1992).

    Substituted service. —

    Phrase “served on the person” in § 8.01-274.1 refers to the multiple methods for obtaining in personam jurisdiction over a party, which include substituted service pursuant to subdivision 2 of § 8.01-296 ; either substituted service on a family member or by posting is valid service upon a “natural person” if it occurs at the party’s “usual place of abode,” and under subdivision 2 of § 8.01-296 , substituted service at a party’s usual place of abode may give a court jurisdiction over that person. Koons v. Crane, 72 Va. App. 720, 853 S.E.2d 524, 2021 Va. App. LEXIS 13 (2021).

    Service by publication. —

    Divorce court had not obtained personal jurisdiction over a husband where the wife’s service by order of publication in a local newspaper appeared to have had no realistic possibility of ever reaching him, and she did not demonstrate why the most inferior method of service was the best that she could have done. The wife’s ineffectual method of constructive service by order of publication revealed a lack of due diligence rendering the entire exercise inferior to the substituted-service option available under the long-arm statute, § 8.01-293 . Evans v. Evans, 300 Va. 134 , 860 S.E.2d 381, 2021 Va. LEXIS 84 (2021).

    Reading the various service-of-process statutes as a harmonious whole, the legislative intent is unmistakable. Service of process under Virginia statutes involves a cascading series of efforts designed to provide due process by ensuring that the method of notice be reasonably calculated to reach the intended recipient and be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. Consistent with the Commonwealth’s common-law traditions, statutory hierarchies of methods of service, primus personal, deinde substituted, deinde constructive, are best understood not as alternatives but successive methods, ranging from most effective notice to least effective. Evans v. Evans, 300 Va. 134 , 860 S.E.2d 381, 2021 Va. LEXIS 84 (2021).

    Effect of service by publication. —

    Where the service upon wife in Oregon of copy of bill of complaint filed by husband seeking divorce in Virginia had the effect of service by publication, and no other, the divorce decree did not deprive wife of the right to seek a determination by the trial court of the property right she may have had in husband’s military pension. Toomey v. Toomey, 19 Va. App. 756, 454 S.E.2d 735, 1995 Va. App. LEXIS 189 (1995), rev'd, 251 Va. 168 , 465 S.E.2d 838, 1996 Va. LEXIS 3 (1996).

    Service on defendant’s supervisor. —

    In a divorce proceeding commenced by the wife, service of the bill of complaint upon the husband’s supervisor was not one of the prescribed methods for serving the bill of complaint, and accordingly, the service was invalid and was insufficient to subject the husband to the trial court’s jurisdiction. Lee v. Lee, 2002 Va. App. LEXIS 516 (Va. Ct. App. Aug. 20, 2002).

    In a suit filed against a police officer in his individual capacity, service on his supervisor was not sufficient under § 8.01-296 or Fed. R. Civ. P. Rule 4(e) because service was not made upon the officer, his authorized agent, a person of suitable age at the officer’s home, or by posting a copy at the officer’s home and mailing a second copy. Poole v. Pass, 351 F. Supp. 2d 473, 2005 U.S. Dist. LEXIS 251 (E.D. Va. 2005).

    Service on relative. —

    Where the return of service did not show that substituted service on a relative was made at the party’s usual place of abode and conflicting affidavits were submitted, service was improper under Fed. R. Civ. P. Rule 4(e) and this section, but an extension of time to attempt service under Fed. R. Civ. P. Rule 4(m) was appropriate. DIRECTTV, Inc. v. Mullins, No. 1:03CV00151, 2004 U.S. Dist. LEXIS 8576 (W.D. Va. May 14, 2004).

    Service on Commonwealth. —

    Court granted the Commonwealth’s motion to quash because plaintiff alleged service of process by mailing a copy of the Summons and Complaint to the Virginia Attorney General’s office by certified mail was deficient under Virginia law, and there was no indication (and the Commonwealth specifically rejected the possibility) that the Commonwealth waived its service of process. Fauber v. Va. Army Nat'l Guard, No. 5:08-cv-00068, 2009 U.S. Dist. LEXIS 31040 (W.D. Va. Apr. 9, 2009).

    Service of process and notice issues barred by res judicata. —

    Because the trial court, in the order on appeal, had already determined the issues raised by father by finding that his appearance and participation in the October 1996 hearing was a general appearance that waived all questions about service of process and notice, and he had abandoned his only remedy of an appeal from said order, his further attempt to litigate those same issues was barred by res judicata. Star v. Commonwealth, 2007 Va. App. LEXIS 417 (Va. Ct. App. Nov. 20, 2007).

    The record proved that husband was aware of the proceeding against him, a fact made clear by both the duly authenticated certificates of notice and husband’s entrance by special appearance to contest the trial court’s jurisdiction. Husband did not appeal the court’s subsequent finding that it did have personal jurisdiction, and consequently that finding became final 21 days after entry of the order. Such actions are sufficient to constitute waiver. Burd v. Burd, No. 1156-96-4 (Ct. of Appeals Feb. 11, 1997).

    Filing of objections to report waived objections to jurisdiction. —

    Where husband made a general appearance by filing objections to commissioner’s report and a motion for summary judgment, and while the motion for summary judgment alleged that the “first order entered in this cause ... was without jurisdiction and before husband was properly before the court,” the husband’s filing of objections to the commissioner’s report that did not attack the court’s jurisdiction waived his objections to the court’s exercise of personal jurisdiction. Davis v. Davis, No. 1125-97-1 (Ct. of Appeals Nov. 18, 1997).

    Presumption that order properly served. —

    A show cause order would have been served by a public officer and, where the adjudication order reflected that the party was served, the court in a collateral proceeding could presume that the officer personally served the party in compliance with this section. Tyson v. Commonwealth, 2000 Va. App. LEXIS 240 (Va. Ct. App. Mar. 28, 2000).

    Statute does not validate jurisdiction. —

    Trial court erred in denying an ambulance service’s motion to vacate a default judgment entered in favor of an injured party as the service was not served with the notice portion of the motion for judgment required to be served under Va. Sup. Ct. R. 3:3(c) [see now Rule 3:5] and trial court lacked jurisdiction to enter the default judgment; § 8.01-288 did not cure the defective process, as the statute cured only defects in the manner process was served, not defects in the process itself, and notwithstanding the service’s actual notice of the proceedings, the trial court lacked jurisdiction to enter the default judgment. Nothing in this section or Va. Sup. Ct. R. 3:17 [see now Rule 3:19] purported to validate jurisdiction of a trial court when the trial court had not otherwise acquired jurisdiction over the defendant. Lifestar Response of Md., Inc. v. Vegosen, 267 Va. 720 , 594 S.E.2d 589, 2004 Va. LEXIS 64 (2004).

    B.Service by Posting.

    Posting on front door of usual place of abode. —

    Trial court properly awarded a husband a divorce a vinculo matrimonii because the initial complaint was properly served on the wife by posting on the front door of her usual place of abode, her general appearance at a hearing waived any objection to the alleged defect in the service, the wife did not ask the court for a scheduling order or object to the absence of such order, and her failure to file a transcript waived the affected issues. Burchette v. Burchette, 2014 Va. App. LEXIS 229 (Va. Ct. App. June 3, 2014).

    Mailing of process to place where party may receive mail. —

    When the party causing service of process mails a copy of the pleading to the party served at a place where that party may receive mail, there has been compliance with the statutory directive of subdivision 2 b that the party “mails to the party served a copy of the pleading.” Washington v. Anderson, 236 Va. 316 , 373 S.E.2d 712, 5 Va. Law Rep. 921, 1988 Va. LEXIS 146 (1988).

    Such as his residence. —

    Although judgment debtor was mailed service of process to address where he resided and not to his post office address where he received mail, substituted service was sufficient under subdivision 2 b to support a default judgment, since the judgment debtor made no showing that he did not or could not receive delivery of mail at his residence. Washington v. Anderson, 236 Va. 316 , 373 S.E.2d 712, 5 Va. Law Rep. 921, 1988 Va. LEXIS 146 (1988).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    The cases cited below were decided under corresponding provisions of former law. The terms “this statute” and “this section,” as used below, refer to former provisions.

    The provisions of this section are not modified by § 8.01-299 . Pereira v. Davis Fin. Agency, 146 Va. 215 , 135 S.E. 823 , 1926 Va. LEXIS 324 (1926).

    This statute does not apply to a notice of dishonor of negotiable paper. McVeigh v. Bank of Old Dominion, 67 Va. (26 Gratt.) 785, 1875 Va. LEXIS 59 (1875).

    Methods of service are not cumulative but successive. —

    The different methods of service provided by this section are not cumulative but successive. Service cannot be made upon a member of the family if the defendant be found at his place of abode, and there can be no posting if a member of the family above the age of 16 years be found at the place of abode of the defendant. When one method of service is substituted for another, the return must show a right to adopt the inferior method of service by negativing ability to get the better service. Washburn v. Angle Hdwe. Co., 144 Va. 508 , 132 S.E. 310 , 1926 Va. LEXIS 266 (1926).

    Terms allowing constructive service must be strictly followed. —

    The terms of this section by which constructive service of process is allowed in lieu of personal service, must be strictly followed. Crockett v. Etter, 105 Va. 679 , 54 S.E. 864 , 1906 Va. LEXIS 76 (1906).

    There is no substituted service in case of illness. —

    The legislature has not provided in this section for a substituted service of process in case of the extreme illness of a defendant. It being the province of the legislature to define the method of service of process, and it having done so, the Supreme Court has no power to add to the statute. Narrows Grocery Co. v. Bailey, 161 Va. 278 , 170 S.E. 730 , 1933 Va. LEXIS 317 (1933).

    Waiver of defect. —

    Appearing and contesting of service is no waiver of defect of notice. Fowler v. Mosher, 85 Va. 421 , 7 S.E. 542 , 1888 Va. LEXIS 50 (1888).

    B.Service on Family Member.

    Purpose of provision as to service on member of family. —

    The purpose of the provision was to require service upon some person who would feel interested by the ties of consanguinity, and the relation of dependence, to communicate the fact of the service to the party for whom it was designed. Fowler v. Mosher, 85 Va. 421 , 7 S.E. 542 , 1888 Va. LEXIS 50 (1888).

    In order to receive process, wife must be member of family. —

    This section should be construed as requiring that the wife should be a member of defendant’s family in order to be entitled to receive the process, so that a return showing service by leaving a copy with defendant’s wife, but not stating that she was a member of defendant’s family, is insufficient. King v. Davis, 137 F. 198, 1903 U.S. App. LEXIS 5453 (C.C.D. Va. 1903).

    Delivery must be at usual place of abode. —

    A judgment by default rendered upon a notice, the return of service upon which recited that it was executed by delivering it to defendant’s wife, “not at his usual place of abode,” instead of at his usual place of abode, is void. Crockett v. Etter, 105 Va. 679 , 54 S.E. 864 , 1906 Va. LEXIS 76 (1906).

    There is a presumption that a daughter is a member of the family. Smithson v. Briggs, 74 Va. (33 Gratt.) 180, 1880 Va. LEXIS 31 (1880).

    Delivery to a mere boarder is insufficient. Fowler v. Mosher, 85 Va. 421 , 7 S.E. 542 , 1888 Va. LEXIS 50 (1888).

    Service on defendant’s son, who was not a member of defendant’s family, was not legal service and the judgment was void and invalid. Finney v. Clark, 86 Va. 354 , 10 S.E. 569 , 1889 Va. LEXIS 49 (1889).

    “Last home,” or “residence,” not synonymous with “usual place of abode.” —

    Last home, or residence, or place of abode, are not synonymous with the usual place of abode, etc., and, in making substituted service, under this section the copy of the notice must be left at defendant’s usual place of abode and not elsewhere. Washburn v. Angle Hdwe. Co., 144 Va. 508 , 132 S.E. 310 , 1926 Va. LEXIS 266 (1926), but see Smithson v. Briggs, 74 Va. (33 Gratt.) 180, 1880 Va. LEXIS 31 (1880) and Fowler v. Mosher, 85 Va. 421 , 7 S.E. 542 (1888) (holding “residence” and “home” synonymous with “usual place of abode.”).

    C.Service by Posting.

    Service valid though defendant and his family were absent for two months. —

    Service by posting was valid notwithstanding that defendant and his family were in Florida for a two-month period at the time of the service. The absence was only temporary. Spiegelman v. Birch, 204 Va. 96 , 129 S.E.2d 119, 1963 Va. LEXIS 120 (1963).

    Posting copy after house vacated is void. —

    A notice posted upon a house seven months after it had been vacated by the defendant was not posted upon his “usual place of abode,” and a judgment founded on such defective notice was absolutely void. Earle v. McVeigh, 91 U.S. 503, 23 L. Ed. 398, 1875 U.S. LEXIS 1394 (1876).

    Return showing posting on “the door” is invalid. —

    Under this section authorizing substituted service by posting a copy on the “front door,” a return showing service by posting up and leaving on “the door” of defendant’s usual dwelling house does not show a valid service. King v. Davis, 137 F. 198, 1903 U.S. App. LEXIS 5453 (C.C.D. Va. 1903).

    CIRCUIT COURT OPINIONS

    Not “usual place of abode.” —

    Service was void as plaintiff did not post substituted service at defendant’s “usual place of abode” as required by this section; the cure statute, § 8.01-288 , was unavailing because defendant did not actually receive the process until over one year after plaintiff filed her motion for judgment, and plaintiff failed to show she used due diligence in attempting to obtain service. Drewry v. Nottingham, 64 Va. Cir. 269, 2004 Va. Cir. LEXIS 182 (Norfolk Mar. 22, 2004).

    Second defendant was dismissed from a personal injury action under subsection B of § 8.01-277 for failure to serve process within one year of the action’s commencement because plaintiff made no effort to determine if second defendant had moved after September 16, 2005, and service by posting at a prior address on September 16, 2006, was not at second defendant’s usual place of abode and, thus, was ineffective under subdivision 2 of § 8.01-296 . Nichols v. Moss, 73 Va. Cir. 259, 2007 Va. Cir. LEXIS 71 (Norfolk Apr. 11, 2007).

    Plaintiff did not achieve service upon defendant within 12 months as required by § 8.01-275.1 or Va. Sup. Ct. R. 3:5 because defendant’s last known address was not the usual abode where posted service was effected; defendant had moved from the defendant’s last known address by the time plaintiff refiled the plaintiff’s personal injury action against the defendant. Johnston v. Robinson, 75 Va. Cir. 137, 2008 Va. Cir. LEXIS 92 (Amherst County Mar. 27, 2008).

    Service on relative. —

    Plaintiffs’ motion for a default judgment was denied, because plaintiffs had not made proper service of process on the two defendants in question under either § 8.01-296 , as it was uncertain whether process was served at defendants usual abode and whether a defendant’s mother was a family member, or under § 8.01-329 , as plaintiffs failed to show that they used due diligence in locating defendants. Samuel I. White, P.C. v. White, 70 Va. Cir. 106, 2005 Va. Cir. LEXIS 275 (Nelson County Dec. 20, 2005).

    Service on agent. —

    Record supported that the corporation’s agent regularly received mail at a certain location, and mailing to this address was sufficient under the statute; the 10-day notice was properly mailed to him after service was posted to his personal address, and thus the default judgment against him personally was valid. Lavoie v. Towne Auto Brokers, 2018 Va. Cir. LEXIS 308 (Virginia Beach Sept. 4, 2018).

    Service on house-sitter. —

    Defendant was not legally served with process when a process server gave plaintiff’s documents to defendant’s house-sitter because that action was not service on a member of defendant’s family or the posting of a copy of process at the front door under § 8.01-296 . Jamerson v. Laub, 74 Va. Cir. 347, 2007 Va. Cir. LEXIS 300 (Rockbridge County Nov. 8, 2007).

    Service on members of limited liability company. —

    Service on members of a limited liability company was not defective because lenders were not required to give them notice pursuant to subdivision 2 b; that notice was required when a defendant was served by posting on the front door of his or her usual place of abode, but that was not the mode of service the lenders used. Howell v. Boone, 99 Va. Cir. 261, 2018 Va. Cir. LEXIS 119 (Norfolk June 15, 2018).

    Service by posting. —

    Because a husband was served with process by posting and failed to file an answer or otherwise make a general appearance, any further notices were required to be served on the husband by any of the prescribed statutory methods, until such time as the husband made a general appearance in the case. Therefore, the circuit court declined to enter the final decree of divorce submitted by the wife’s counsel at a hearing because the service of the notice of the hearing by mailing the same to the husband was insufficient. Jones v. Jones, 103 Va. Cir. 229, 2019 Va. Cir. LEXIS 550 (Chesapeake Oct. 10, 2019).

    Service sufficient to apprise defendant of proceedings against him. —

    Process substantially complied with § 8.01-296 because it was sufficient to apprise defendant of the proceedings against him, and the only alleged defect in the process was the use of the incorrect middle initial for defendant; defendant was in possession of the summons before the return date of an alias warrant in detinue, and the summons identified defendant by first and last name, named the business he operated, described the claims against him in substantial detail, and was delivered to defendant’s business. Singleton v. Suplizio, 74 Va. Cir. 177, 2007 Va. Cir. LEXIS 284 (Prince William County Sept. 21, 2007).

    Service insufficient. —

    Reconsideration was proper because there was no evidence that a mother waived service under § 8.01-286.1 , and the father’s mere mailing of the pleadings and Va. Sup. Ct. R. 4:15(e) certification were insufficient to constitute proper service under subdivisions 1 through 3 of § 8.01-296 . Natal v. Natal, 86 Va. Cir. 278, 2012 Va. Cir. LEXIS 35 (Fairfax County Feb. 28, 2012).

    Wife failed to serve her husband or his guardian with her cross-claim under this section, Va. Sup. Ct. R. 3:5, or Va. Sup. Ct. R. 1:12 because the cross-claim was filed before the husband received formal service of process of the complaint, and therefore the attempted service by mailing to the wrong address did not trigger the 21-day response requirements of Va. Sup. Ct. R. 3:10(c). Budnick v. Jewish Family Servs., 103 Va. Cir. 301, 2019 Va. Cir. LEXIS 616 (Richmond Oct. 25, 2019).

    Diplomatic immunity. —

    Where a husband did not establish that he was a diplomat or diplomatic agent instead of a member of the administrative staff under the Vienna Convention on Diplomatic Relations and Optional Protocol, Nov. 24, 1972, arts. 31 and 37, 23 U.S.T. 3227 or the International Organizations Immunities Act, 22 U.S.C.S. § 288d(b), the husband could not claim immunity of civil process in a divorce proceeding. Abu-Hassan v. Al-Nsour, 64 Va. Cir. 76, 2004 Va. Cir. LEXIS 40 (Fairfax County Feb. 11, 2004).

    Divorce proceedings. —

    Due process notice requirements differed depending on the nature of the underlying proceedings. So, since the husband was unable to make service by posting, the court could still exercise jurisdiction to award a divorce decree upon notice by publication and by default under subdivision 3 of § 8.01-296 and § 20-104 , but could not exercise in personam jurisdiction to adjudicate issues of support, custody, equitable distribution, or counsel fees under § 20-99 . Nicoli v. Nicoli, 67 Va. Cir. 157, 2005 Va. Cir. LEXIS 170 (Loudoun County Mar. 9, 2005).

    Jurisdiction not found. —

    Although a court had in personam jurisdiction over a husband, it did not have jurisdiction over the husband’s military retirement under 10 U.S.C.S. § 1408(c)(4) because he was a resident of Pennsylvania, only lived in Virginia because of a military assignment, and did not consent to jurisdiction. Kroft v. Kroft, 64 Va. Cir. 156, 2004 Va. Cir. LEXIS 32 (Fairfax County Mar. 1, 2004).

    § 8.01-297. Process on convict defendant.

    In all actions against one who has been convicted of a felony and is confined in a local or regional jail or State correctional institution, process shall be served on such convict and, subject to § 8.01-9 , a guardian ad litem shall be appointed for him. Such service may be effected by delivery to the officer in charge of such jail or institution whose duty it shall be to deliver forthwith such process to the convict.

    History. Code 1950, § 8-55; 1954, c. 543; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-297 expands former § 8-55 by providing for service on incarcerated felons in all actions.

    Notice to a representative of a convict also is contemplated since the section requires appointment of a guardian ad litem unless the convict is represented by an attorney pursuant to § 8.01-9 who would himself receive notice of the action. This procedure does not require service on the convict’s committee and to this extent represents a departure from the requirement of former § 8-55 when alimony was sought from the convict.

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Limitation of Actions, § 37.

    CASE NOTES

    Motion to withdraw as counsel of inmate denied. —

    In a civil action for securities fraud against an inmate, the district court denied counsels’ motions to withdraw because they failed to make the requisite showing under Fed. R. Civ. P. 17(b) and §§ 8.01-9 and 53.1-223 since the inmate did not waive his right to assistance and mere nonpayment of fees was insufficient to justify the withdrawals. United States SEC v. Woodard, No. 2:13cv16, 2014 U.S. Dist. LEXIS 35417 (E.D. Va. Feb. 19, 2014).

    § 8.01-298. How summons for witness or juror served.

    In addition to the manner of service on natural persons prescribed in § 8.01-296 , a summons for a witness or for a juror may be served:

    1. At his or her usual place of business or employment during business hours, by delivering a copy thereof and giving information of its purport to the person found there in charge of such business or place of employment; or
    2. In the case of a juror, by mailing a summons to the person being served, at least seven days prior to the day he is summoned to appear.

    History. Code 1950, § 8-58; 1954, c. 366; 1973, c. 439; 1977, c. 617; 1979, c. 444.

    CASE NOTES

    This section equally applicable to civil and criminal cases. —

    The provisions of this title prescribing the modes of service of witness subpoenas, including this section, are equally applicable to criminal and civil cases. Bellis v. Commonwealth, 241 Va. 257 , 402 S.E.2d 211, 7 Va. Law Rep. 1671, 1991 Va. LEXIS 32 (1991).

    Disobedience to “any lawful process” is made subject to summary punishment or contempt by § 18.2-456 (5); “process” includes a subpoena directed to a witness. Bellis v. Commonwealth, 241 Va. 257 , 402 S.E.2d 211, 7 Va. Law Rep. 1671, 1991 Va. LEXIS 32 (1991).

    CIRCUIT COURT OPINIONS

    Service on registered agent. —

    Homeowners’ motion for default judgment was denied for improper service of process because although the complaint was addressed to the registered agent of a limited liability company, it was not served on the agent but was served on a project coordinator; service on a non-designated, non-member employee was not sufficient to give the LLC notice of the pendency of the action against it. Nichols v. Vico Constr. Corp., 98 Va. Cir. 204, 2018 Va. Cir. LEXIS 28 (Chesapeake Mar. 1, 2018).

    § 8.01-299. How process served on domestic corporations and limited liability companies generally.

    Except as prescribed in § 8.01-300 as to municipal and quasi-governmental corporations, and subject to § 8.01-286.1 , process may be served on a corporation or limited liability company created by the laws of the Commonwealth as follows:

    1. By personal service on any officer, director, or registered agent of such corporation or on the registered agent of such limited liability company;
    2. By substituted service on stock corporations in accordance with § 13.1-637 , on nonstock corporations in accordance with § 13.1-836 , and on limited liability companies in accordance with § 13.1-1018 ; or
    3. If the address of the registered office of the corporation or limited liability company is a single-family residential dwelling, by substituted service on the registered agent of the corporation or limited liability company in the manner provided by subdivision 2 of § 8.01-296 .

    History. Code 1950, § 8-59; 1954, c. 23; 1956, c. 432; 1958, c. 13; 1976, c. 395; 1977, c. 617; 1991, c. 672; 2005, c. 866; 2016, c. 270; 2018, c. 475.

    REVISERS’ NOTE

    Section 8.01-299 revises former § 8-59. The section, coupled with statewide service under § 8.01-292 , provides for personal service upon a corporate officer, director or registered agent anywhere in Virginia.

    The 2005 amendments.

    The 2005 amendment by c. 866, in the first paragraph, inserted “and subject to § 8.01-286.1 ,” and substituted “the Commonwealth” for “this State.”

    The 2016 amendments.

    The 2016 amendment by c. 270 added subdivision 3 and made related changes.

    The 2018 amendments.

    The 2018 amendment by c. 475, in the introductory paragraph, inserted “or limited liability”; in subdivision 1, added “or on the registered agent of such limited liability company”; in subdivision 2, inserted “and on limited liability companies in accordance with § 13.1-1018 ”; and in subdivision 3, substituted “address of the registered office” for “registered address,” inserted “or limited liability compay” twice; and made stylistic changes.

    Law Review.

    For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

    For note, “Obtaining Jurisdiction Over Corporations in Virginia,” see 12 U. Rich. L. Rev. 369 (1978).

    For essay, “Nonsuit in Virginia Civil Trials,” see 48 U. Rich. L. Rev. 265 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 48.

    CASE NOTES

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, may refer to former provisions.

    Applicability. —

    The denial of the motion to quash service of process was proper because the process was actually received by the corporation’s registered agent even though process had not been properly served; the language of § 8.01-288 evidences a legislative intent to exclude service of process from its saving provision only in certain limited instances, furthermore use of the word “may” in § 8.01-299 indicates that some other kind of service might be proper. Frey v. Jefferson Homebuilders, Inc., 251 Va. 375 , 467 S.E.2d 788, 1996 Va. LEXIS 26 (1996).

    The thrust of this section concerns the initial service of process on a domestic corporation rather than interim service of notice for subsequent hearings and other proceedings, such as the filing of a praecipe, after the parties are properly before the court. Fredericksburg Constr. Co. v. J.W. Wyne Excavating, Inc., 260 Va. 137 , 530 S.E.2d 148, 2000 Va. LEXIS 106 (2000).

    Service on officers is valid. —

    Where process is duly served on officers of corporation, such service is valid, though they disclaim the right to answer officially. Lewis' Adm'r v. Glenn, 84 Va. 947 , 6 S.E. 866 , 1888 Va. LEXIS 170 (1888).

    But service is not recognition that officer is legal representative in all proceedings. —

    The fact that this section (as it formerly read) authorizes service of process against a corporation on its treasurer is not a recognition of the treasurer as the representative of the corporation in all legal proceedings. Taylor v. Sutherlin-Meade Tobacco Co., 107 Va. 787 , 60 S.E. 132 , 1908 Va. LEXIS 141 (1908).

    Service on a director who has been notified of his election, is valid, especially where he makes no disclaimer. The fact that he does not notify the corporation is immaterial. Danville & W.R.R. v. Brown, 90 Va. 340 , 18 S.E. 278 , 1893 Va. LEXIS 56 (1893).

    Service of nonresident president by third party is insufficient. —

    Where a suit is brought in a county in this State against a corporation domiciled in that county, and process is served upon the president of the corporation resident in Philadelphia, by a third party, who makes affidavit, as required, such service is insufficient to give the court jurisdiction. Dillard v. Central Va. Iron Co., 82 Va. 734 , 1 S.E. 124 , 1887 Va. LEXIS 139 (1887).

    Service on wife of agent is invalid. —

    Process against a corporation cannot be executed by service on the wife of an agent. Water Front Coal Co. v. Smithfield Marl, Clay & Transp. Co., 114 Va. 482 , 76 S.E. 937 , 1913 Va. LEXIS 110 (1913) (see Shenandoah Valley R.R. v. Griffith, 76 Va. 913 (1882)).

    Service in case of defunct corporations. —

    Service of process on the late president of a corporation which has ceased to exist is sufficient. Richmond Union Passenger Ry. v. New York & S.B. Ry., 95 Va. 386 , 28 S.E. 573 , 1897 Va. LEXIS 47 (1897).

    Effect of director’s disclaimer on validity of return. —

    The return of an officer is to be taken as true. This is true irrespective of a disclaimer on the part of a director, who was served, which is stated in the return, for such disclaimer may be treated as surplusage, and at most is a statement made out of court of a fact which might or might not be proved at the hearing. Davis Bakery, Inc. v. Dozier, 139 Va. 628 , 124 S.E. 411 , 1924 Va. LEXIS 138 (1924).

    When president of corporation may be served. —

    Service of process on the president of a corporation in the county or city wherein the action is brought and in which he resides may be made at any time before or on the return day of such process. Jones & Co. v. C.W. Hancock & Sons, 117 Va. 511 , 85 S.E. 460 , 1915 Va. LEXIS 65 (1915).

    Declaration in the certificate of incorporation as to the location of the principal office, is conclusive, and the motive of the corporation in declaring is immaterial. Loyd's Executorial Trustees v. City of Lynchburg, 113 Va. 627 , 75 S.E. 233 , 1912 Va. LEXIS 82 (1912).

    CIRCUIT COURT OPINIONS

    Service on registered agent. —

    Homeowners’ motion for default judgment was denied for improper service of process because although the complaint was addressed to the registered agent of a limited liability company, it was not served on the agent but was served on a project coordinator; service on a non-designated, non-member employee was not sufficient to give the LLC notice of the pendency of the action against it. Nichols v. Vico Constr. Corp., 98 Va. Cir. 204, 2018 Va. Cir. LEXIS 28 (Chesapeake Mar. 1, 2018).

    Service through the Secretary of the Commonwealth. —

    Service through the Secretary of the Commonwealth was properly effected, as there was due diligence conducted to locate and serve the corporation’s registered agent, which included seven attempts at personal service and inquiry with the State Corporation Commission on where he could be found, and this effort was sworn to the Secretary of the Commonwealth in an affidavit as required; where due diligence yielded no success in serving a party actively evading process, service of the corporation through the Secretary of the Commonwealth was proper. Lavoie v. Towne Auto Brokers, 2018 Va. Cir. LEXIS 308 (Virginia Beach Sept. 4, 2018).

    § 8.01-300. How process served on municipal and county governments and on quasi-governmental entities.

    Notwithstanding the provisions of § 8.01-299 for service of process on other domestic corporations, process shall be served on municipal and county governments and quasi-governmental bodies or agencies in the following manner:

    1. If the case be against a city or a town, on its city or town attorney in those cities or towns which have created such a position, otherwise on its mayor, manager or trustee of such town or city; and
    2. If the case be against a county, on its county attorney in those counties which have created such a position, otherwise on its attorney for the Commonwealth; and
    3. If the case be against any political subdivision, or any other public governmental entity created by the laws of the Commonwealth and subject to suit as an entity separate from the Commonwealth, then on the director, commissioner, chief administrative officer, attorney, or any member of the governing body of such entity; and
    4. If the case be against a supervisor, county officer, employee, or agent of the county board, arising out of official actions of such supervisor, officer, employee, or agent, then, in addition to the person named defendant in the case, on the county attorney, if the county has a county attorney, and if there is no county attorney, on the clerk of the county board.Service under this section may be made by leaving a copy with the person in charge of the office of any officer designated in subdivisions 1 through 4.

    History. Code 1950, § 8-59; 1954, c. 23; 1956, c. 432; 1958, c. 13; 1976, c. 395; 1977, c. 617; 1980, c. 732; 1985, c. 416; 2018, c. 474.

    REVISERS’ NOTE

    Section 8.01-300 supersedes those provisions of former § 8-59 which specified how service should be made in suits against municipalities. The section clarifies the requirements for service in suits against a county or against a public or quasi-governmental corporate body.

    The 2018 amendments.

    The 2018 amendment by c. 474, in subdivision 4, substituted “on the county attorney” for “on each supervisor and the county attorney” and “if there is no county attorney” for “if there be no county attorney.”

    Law Review.

    For 1985 survey of Virginia civil procedure and practice, see 19 U. Rich. L. Rev. 679 (1985).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 48.

    CASE NOTES

    In suit against municipality, notice must be served on some designated officer. —

    In a proceeding to confiscate debts due from a municipal corporation, the notice to the debtor must be upon the mayor or other officer named in the statute. Fairfax v. City of Alexandria, 69 Va. (28 Gratt.) 16, 1877 Va. LEXIS 50 (1877), aff'd, 95 U.S. 774, 24 L. Ed. 583, 1877 U.S. LEXIS 2234 (1878) (decided under prior law).

    Service on the auditor of Alexandria, without an appearance by the city or the creditor did not give the court jurisdiction of the debt which the city owed the creditor. Alexandria v. Fairfax, 95 U.S. 774, 24 L. Ed. 583, 1877 U.S. LEXIS 2234 (1878) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Service on designated officer. —

    Whether a secretary was working in the secretary’s capacity as secretary to the city attorney or the city manager, the secretary was a person “in charge of the office,” within the meaning of § 8.01-300 ; therefore, because a 13-day delay in filing an answer was not significant and would not prejudice the injured plaintiff, pursuant to Va. Sup. Ct. R. 1:9, the city was allowed to file a late answer. Tarpley v. City of Martinsville, 82 Va. Cir. 222, 2011 Va. Cir. LEXIS 164 (Martinsville Feb. 9, 2011).

    § 8.01-301. How process served on foreign corporations generally.

    Subject to § 8.01-286.1 , service of process on a foreign corporation may be effected in the following manner:

    1. By personal service on any officer, director or on the registered agent of a foreign corporation which is authorized to do business in the Commonwealth, and by personal service on any agent of a foreign corporation transacting business in the Commonwealth without such authorization, wherever any such officer, director, or agents be found within the Commonwealth;
    2. By substituted service on a foreign corporation in accordance with §§ 13.1-766 and 13.1-928 , if such corporation is authorized to transact business or affairs within the Commonwealth;
    3. By substituted service on a foreign corporation in accordance with § 8.01-329 or by service in accordance with § 8.01-320 , where jurisdiction is authorized under § 8.01-328.1 , regardless of whether such foreign corporation is authorized to transact business within the Commonwealth; or
    4. By order of publication in accordance with §§ 8.01-316 and 8.01-317 where jurisdiction in rem or quasi in rem is authorized, regardless of whether the foreign corporation so served is authorized to transact business within the Commonwealth.This section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation.

    History. Code 1950, § 8-60; 1977, c. 617; 1991, c. 672; 2005, c. 866; 2013, c. 113.

    REVISERS’ NOTE

    Section 8.01-301 clarifies the methods of service on foreign corporations. Generally, the proposal does not change present law; but, by consolidation and cross-reference, it indicates in a single section the interrelationship among process provisions of Title 13.1 (§§ 13.1-111 and 13.1-274), of the Virginia Long-Arm Statute (§§ 8.01-328 ff.), for orders of publication (§§ 8.01-316 and 8.01-317 ), and for personal service (former § 8-60). Subsection 4 also delineates when service by publication is available on foreign corporations.

    Section 8.01-301 effects a substantive change in former law by allowing service in the alternative (i.e., at the option of the plaintiff under Title 13.1 or under the Long-Arm Statute) in cases where the prerequisites are met for long-arm jurisdiction over foreign corporations. This changes former § 8-81.3 whereby substituted service was available only where service could not otherwise be effected under the Code. The result of the former statutory scheme was that where §§ 13.1-111 and 13.1-274 were applicable (i.e., to foreign corporations authorized to transact business within the State), substituted service could always be made thereunder on the clerk of the State Corporation Commission and, thus, service under § 8-81.3 on the Secretary of the Commonwealth was never available in such cases. On the other hand, where the foreign corporation to be served was not authorized to do business within the State, service under §§ 13.1-111 and 13.1-274 was not available, and service on such foreign corporation could be had by service on the Secretary of the Commonwealth under former § 8-81.3. The revision eliminates such unnecessary intricacies in cases where long-arm jurisdiction applies by allowing the plaintiff to choose to effect service under either the Long-Arm Statute or Title 13.1.

    Another substantive change comports with the change permitting statewide service under § 8.01-292 . Section 8.01-301 allows service on a corporation to be made personally anywhere within the state (1) on an officer, director, or registered agent of a foreign corporation authorized to do business in Virginia and (2) on an officer, director, or any agent of a foreign corporation which is not authorized to do business within Virginia. Thus, although § 8.01-301 retains the distinction between registered and unregistered corporations, the effect of § 8.01-292 is to make all personal service under proposed § 8.01-301 sufficient so long as the officer, director, registered or other agent is served within the State.

    Cross references.

    As to service by publication, see §§ 8.01-316 through 8.01-324 .

    Editor’s note.

    Sections 13.1-111 and 13.1-274, referred to in the Revisers’ note, were repealed by Acts 1985, c. 522. See now §§ 13.1-766 and 13.1-928 .

    The 2005 amendments.

    The 2005 amendment by c. 866 added “Subject to § 8.01-286.1 ” at the beginning of the section.

    The 2013 amendments.

    The 2013 amendment by c. 113 inserted “or by service in accordance with § 8.01-320 ,” in subdivision 3; and added the last paragraph.

    Law Review.

    For note, “Obtaining Jurisdiction Over Corporations in Virginia,” see 12 U. Rich. L. Rev. 369 (1978).

    For survey of Virginia practice and pleading for the year 1977-1978, see 64 Va. L. Rev. 1501 (1978).

    For 1985 survey of Virginia civil procedure and practice, see 19 U. Rich. L. Rev. 679 (1985).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 48.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Burden of proof is on the plaintiff to establish jurisdiction through proper service pursuant to this section, and this is true even where the action has been removed to federal court. Consolidated Eng'g Co. v. Southern Steel Co., 88 F.R.D. 233, 1980 U.S. Dist. LEXIS 14370 (E.D. Va. 1980).

    B.Doing Business.

    Contacts must be extensive if injury did not arise in forum state. —

    When a plaintiff in a suit against a foreign corporation is a nonresident and its claimed injury does not arise in the forum State, the contacts between the foreign corporation and the forum must be substantial to invoke the exercise of jurisdiction over the corporation, and if the plaintiff’s injury does not arise out of something done in the forum State, then other contacts between the corporation and the State must be fairly extensive before the burden of defending a suit there may be imposed upon it without offending traditional notions of fair play and substantial justice. Consolidated Eng'g Co. v. Southern Steel Co., 88 F.R.D. 233, 1980 U.S. Dist. LEXIS 14370 (E.D. Va. 1980).

    Mere fact that a wholly owned subsidiary corporation is “present” or “doing business” in the forum State is an insufficient basis for invoking in personam jurisdiction over a nonresident parent corporation, not otherwise present or doing business in the forum since the test is not the degree of control over the subsidiary by the parent but, rather, the factual question is whether the subsidiary and the parent keep their corporate operations distinct and separate; therefore, as long as the two corporations maintain formal corporate separateness in all respects, the de facto control of one by the other does not justify piercing the corporate veil. Consolidated Eng'g Co. v. Southern Steel Co., 88 F.R.D. 233, 1980 U.S. Dist. LEXIS 14370 (E.D. Va. 1980).

    Nonparty subpoena duces tecum. —

    In a case in which a website appealed a judgment of the court of appeals affirming an order of the circuit court holding the website in civil contempt for failing to comply with a nonparty subpoena duces tecum served upon it by a carpet cleaning business, the Supreme Court concluded that the circuit court was not empowered to enforce the nonparty subpoena against the website, which was headquartered in California. Subpoena power was not conferred upon the circuit court by the website’s act in registering to conduct business in Virginia or designating a registered agent for service of process in the Commonwealth. Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 289 Va. 426 , 770 S.E.2d 440, 2015 Va. LEXIS 51 (2015).

    C.Persons Who May Be Served.

    Service on registered agent not required. —

    The fact that the person on whom service was effected is not the registered agent of a foreign corporation is not dispositive as an agent’s authority to accept service may be implied in fact. Davies v. Jobs & Adverts Online, GmbH, 94 F. Supp. 2d 719, 2000 U.S. Dist. LEXIS 6488 (E.D. Va. 2000).

    Service on attorney insufficient. —

    Where the plaintiff presented no evidence to establish that the defendant, a foreign corporation, either explicitly or implicitly authorized its local counsel to accept service of process or that the attorney ever represented to anyone that he had such authority, service on the attorney was insufficient. Davies v. Jobs & Adverts Online, GmbH, 94 F. Supp. 2d 719, 2000 U.S. Dist. LEXIS 6488 (E.D. Va. 2000).

    Substituted service not defective. —

    Substituted service on a corporation was not defective because the language of § 8.01-329 reflected a legislative intent to serve process at a single address, not multiple addresses; the record showed that the corporation received mail at the post office box shown on the affidavit for substituted service, that the university mailed correspondence by certified mail, return receipt requested, to the corporation at that address, that both the corporation’s president and general manager received or signed the certification of mailing accompanying correspondence from the university, and that the corporation used both the post office box and the physical address during its contractual relationship with the university. This demonstrated that the address the university identified on the affidavit was reasonably calculated to provide notice to the corporation and was not unconstitutional. Va. Polytechnic Inst. & State Univ. v. Prosper Fin. Inc., 284 Va. 474 , 732 S.E.2d 246, 2012 Va. LEXIS 163 (2012).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Purpose of statute. —

    The statutes designating or requiring the designation of particular persons upon whom process against corporations might be served were not enacted for the purpose of granting special privileges and advantages to foreign corporations or to restrict the right to sue them. On the contrary, their intention was to give an advantage to domestic plaintiffs by furnishing a sure and simple manner by which the foreign corporation could be held to answer in the courts of the state into which it had entered to do business. Junk v. R.J. Reynolds Tobacco Co., 24 F. Supp. 716, 1938 U.S. Dist. LEXIS 1745 (D. Va. 1938).

    This section is permissive and for the benefit of the party seeking to obtain service of process. Trueblood v. Grayson Shops of Tenn., Inc., 32 F.R.D. 190, 1963 U.S. Dist. LEXIS 10401 (E.D. Va. 1963).

    Failure on the part of a corporation to comply with legal formalities cannot be used as a shield to escape liability. Trueblood v. Grayson Shops of Tenn., Inc., 32 F.R.D. 190, 1963 U.S. Dist. LEXIS 10401 (E.D. Va. 1963).

    Statute cannot deprive citizen of right to sue in federal court. —

    Even if it be true that under the Virginia statute a citizen of Virginia suing a foreign corporation in the state courts must cause process to be served upon the statutory agent if one has been designated, this statute cannot serve to deprive a citizen of a right granted by the federal law, namely, to sue in the federal court, where such right is unquestioned except for the existence of such statute. Junk v. R.J. Reynolds Tobacco Co., 24 F. Supp. 716, 1938 U.S. Dist. LEXIS 1745 (D. Va. 1938).

    Federal courts are bound by decisions of State court. —

    In interpreting the language of the process statute of a state, the federal courts are bound by the decisions of the state courts. Iliff v. American Fire Apparatus Co., 277 F.2d 360, 1960 U.S. App. LEXIS 4866 (4th Cir. 1960); Alcalde v. The Los Mayas, 184 F. Supp. 873, 1960 U.S. Dist. LEXIS 4107 (E.D. Va. 1960).

    Order must designate the newspaper in which publication is to be made. A.S. White & Co. v. Jordan, 124 Va. 465 , 98 S.E. 24 , 1919 Va. LEXIS 138 (1919).

    B.Persons Who May Be Served.

    Service may be made on an agent of a foreign corporation failing to comply with the statute requiring the designation of an agent upon whom process might be served. Junk v. R.J. Reynolds Tobacco Co., 24 F. Supp. 716, 1938 U.S. Dist. LEXIS 1745 (D. Va. 1938).

    Service upon the agent of a foreign corporation in charge of its local business and collecting money which was remitted to it was sufficient. Atlantic Greyhound Lines v. Metz, 70 F.2d 166, 1934 U.S. App. LEXIS 4093 (4th Cir.), cert. denied, 293 U.S. 562, 55 S. Ct. 73, 79 L. Ed. 662, 1934 U.S. LEXIS 176 (1934).

    Service on district sales representative is sufficient. —

    A district sales representative of a foreign corporation is a representative of the corporation of sufficient rank to justify the service of process upon him under this section. Mas v. Orange-Crush Co., 99 F.2d 675, 1938 U.S. App. LEXIS 2955 (4th Cir. 1938).

    C.Doing Business.

    Corporation must be doing business within the State. —

    It seems that service upon the statutory agent of a foreign insurance company is valid only so long as such company continues to do business in the State. Deatrick v. State Life Ins. Co., 107 Va. 602 , 59 S.E. 489 , 1907 Va. LEXIS 78 (1907); Bank of Bristol v. Ashworth, 122 Va. 170 , 94 S.E. 469 , 1917 Va. LEXIS 93 (1917).

    In order for a defendant to be amenable to service of process under this section and § 13.1-111 (see now § 13.1-766 ), it must have been “doing business” in Virginia. Sikes v. Rexall Drug Co., 176 F. Supp. 33, 1959 U.S. Dist. LEXIS 2752 (D. Va. 1959).

    It is required both by Virginia and federal law that a corporation be doing business or transacting affairs in Virginia to be subject to service. Goldrick v. D.M. Picton Co., 56 F.R.D. 639, 1971 U.S. Dist. LEXIS 11988 (D. Va. 1971).

    Whether “doing business” depends on facts. —

    The phrase “doing business” is ephemeral and not easily defined and each case must turn upon its own particular facts. Sikes v. Rexall Drug Co., 176 F. Supp. 33, 1959 U.S. Dist. LEXIS 2752 (D. Va. 1959).

    In determining whether a foreign corporation is “doing business” within the State, each case must be decided on its own facts. Moore-McCormack Lines v. Bunge Corp., 307 F.2d 910, 1962 U.S. App. LEXIS 4164 (4th Cir. 1962).

    The test of traditional notions of fair play and substantial justice should be given great weight in ascertaining in a particular case whether the activities of a foreign corporation within the State are sufficient to subject it to constructive service of process. Moore-McCormack Lines v. Bunge Corp., 307 F.2d 910, 1962 U.S. App. LEXIS 4164 (4th Cir. 1962).

    What constitutes “doing business.” —

    Whether a corporation is doing business in a state in such a way as to render it subject to the jurisdiction of the courts thereof, depends upon the fact of each particular case. The only general rule deducible from the decisions is that “the business must be of such a nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction, and is by its duly authorized officers or agent present within the state or district where service is attempted.” Atlantic Greyhound Lines v. Metz, 70 F.2d 166, 1934 U.S. App. LEXIS 4093 (4th Cir.), cert. denied, 293 U.S. 562, 55 S. Ct. 73, 79 L. Ed. 662, 1934 U.S. LEXIS 176 (1934).

    A foreign corporation actually present through its agents and doing business within a state is not, of course, exempted from the jurisdiction because it is acting in behalf of a domestic corporation. Atlantic Greyhound Lines v. Metz, 70 F.2d 166, 1934 U.S. App. LEXIS 4093 (4th Cir.), cert. denied, 293 U.S. 562, 55 S. Ct. 73, 79 L. Ed. 662, 1934 U.S. LEXIS 176 (1934).

    A nonresident corporation entering into a contract with a State corporation for the manufacture of its products, and maintaining an agent in the State where he received mail and spent most of his time, was doing business in the legal sense in the State of Virginia, and the agent was a representative of the corporation of sufficient rank to justify the service of process upon him under the provisions of this section. Certain-Teed Prods. Corp. v. Wallinger, 89 F.2d 427, 1937 U.S. App. LEXIS 3491 (4th Cir.), cert. denied, 302 U.S. 707, 58 S. Ct. 26, 82 L. Ed. 546, 1937 U.S. LEXIS 1232 (1937).

    Jurisdiction is not dependent upon the connection of the nonresident defendant with the transaction that gives rise to the suit before the court. What the defendant may have done in the particular case is relevant, but not conclusive, upon the question of jurisdiction. The latter must be decided after considering the sum total of the defendant’s intrastate transactions. Moore-McCormack Lines v. Bunge Corp., 307 F.2d 910, 1962 U.S. App. LEXIS 4164 (4th Cir. 1962).

    But this is a factor. —

    While jurisdiction is not dependent upon the connection of the nonresident defendant with the transaction giving rise to the suit, yet it is a relevant factor for consideration on the question of jurisdiction. Pappas v. Steamship Aristidis, 249 F. Supp. 692, 1965 U.S. Dist. LEXIS 7632 (E.D. Va. 1965).

    If plaintiff’s injury does not arise out of something done in the forum state, then other contacts between the corporation and the state must be fairly extensive before the burden of defending a suit there may be imposed upon it without offending “traditional notions of fair play and substantial justice.” Goldrick v. D.M. Picton Co., 56 F.R.D. 639, 1971 U.S. Dist. LEXIS 11988 (D. Va. 1971).

    Where a plaintiff is a stranger to the forum state and his injuries did not occur in the state or arise out of the foreign corporation’s activities in the state, the contacts between the corporation and the forum state must be fairly substantial before in personam jurisdiction over the corporation may be imposed without offending the notions of fairness and justice inherent in due process. Grevas v. M/V Olympic Pegasus, 557 F.2d 65, 1977 U.S. App. LEXIS 13046 (4th Cir.), cert. denied, 434 U.S. 969, 98 S. Ct. 515, 54 L. Ed. 2d 456, 1977 U.S. LEXIS 4122 (1977).

    Minimal contacts at least are a prerequisite to the exercise of jurisdiction. Pappas v. Steamship Aristidis, 249 F. Supp. 692, 1965 U.S. Dist. LEXIS 7632 (E.D. Va. 1965).

    Substituted service upon a nonresident is valid if he has had such minimum contacts within the State that the maintenance of the suit would not offend traditional notions of due process and fair play. Moore-McCormack Lines v. Bunge Corp., 307 F.2d 910, 1962 U.S. App. LEXIS 4164 (4th Cir. 1962).

    “Regularity test.” —

    The “regularity test” applies only when the commercial contact is insignificant in itself, and the cause of action did not arise therefrom. Pappas v. Steamship Aristidis, 249 F. Supp. 692, 1965 U.S. Dist. LEXIS 7632 (E.D. Va. 1965).

    The “regularity test” should be applied where (1) the cause of action arose in another state and is in no way connected with any business ever done in Virginia, and (2) the defendant’s commercial contacts with Virginia have been confined to two trips in five years and are insignificant. Pappas v. Steamship Aristidis, 249 F. Supp. 692, 1965 U.S. Dist. LEXIS 7632 (E.D. Va. 1965).

    Finding of regular contacts with the forum state is not an indispensable predicate to the assertion of jurisdiction. Pappas v. Steamship Aristidis, 249 F. Supp. 692, 1965 U.S. Dist. LEXIS 7632 (E.D. Va. 1965).

    Corporation must do more than maintain soliciting agent in State. —

    The general rule is that in order to be “doing business” and thus subject to statutory service such as contemplated by this section and § 13.1-111 (see now § 13.1-766 ) a corporation must maintain more than a mere soliciting agent within a state. Sikes v. Rexall Drug Co., 176 F. Supp. 33, 1959 U.S. Dist. LEXIS 2752 (D. Va. 1959).

    Recent decisions of the Supreme Court of Virginia generally adhere to the view that mere solicitation of orders by a foreign corporation does not amount to the doing of business in a state within the meaning of this section. That court, however, does not ignore federal decisions on the point but relies in great part on decisions of the Supreme Court of the United States. Iliff v. American Fire Apparatus Co., 277 F.2d 360, 1960 U.S. App. LEXIS 4866 (4th Cir. 1960).

    But solicitation of business may be taken into consideration. —

    In the determination of whether there exists such minimum contacts within the State as would not offend traditional notions of due process and fair play by the maintenance of a suit against a foreign corporation, the solicitation of business by the employees of the nonresident within the State may be taken into consideration. Moore-McCormack Lines v. Bunge Corp., 307 F.2d 910, 1962 U.S. App. LEXIS 4164 (4th Cir. 1962).

    Doing of business by subsidiary does not confer jurisdiction over parent. —

    The doing of business of a subsidiary corporation in a state does not without more confer jurisdiction over the nonresident parent corporation. Goldrick v. D.M. Picton Co., 56 F.R.D. 639, 1971 U.S. Dist. LEXIS 11988 (D. Va. 1971).

    And service on parent does not confer jurisdiction over subsidiary. —

    The service of process on the parent company does not permit the court to exercise personal jurisdiction over the wholly owned subsidiary, if they are two separate distinct entities and so operate. Goldrick v. D.M. Picton Co., 56 F.R.D. 639, 1971 U.S. Dist. LEXIS 11988 (D. Va. 1971).

    Activities insufficient to render corporation amenable to service. —

    Where the only activity of defendant corporation’s soliciting agents other than soliciting orders was assisting customers in the use of advertising media and the display of products and the payment of “push money” to customers’ employees, this was not enough to meet the “solicitation plus” test indicated by the United States Supreme Court. Sikes v. Rexall Drug Co., 176 F. Supp. 33, 1959 U.S. Dist. LEXIS 2752 (D. Va. 1959).

    The fact that the parent corporation of the defendant contracted with the International Seaman’s Union to furnish crews for its vessels and vessels of its subsidiaries, and crewmen for defendant went from Virginia to serve on vessels of defendant in North Carolina, did not justify assuming jurisdiction. Goldrick v. D.M. Picton Co., 56 F.R.D. 639, 1971 U.S. Dist. LEXIS 11988 (D. Va. 1971).

    One visit of a vessel to Virginia would not come within the minimal contact requirement where the cause of action arose in another state. Pappas v. Steamship Aristidis, 249 F. Supp. 692, 1965 U.S. Dist. LEXIS 7632 (E.D. Va. 1965).

    Activities of ship’s husbanding agent. —

    Service of process upon a husbanding agent while the vessel is in port, and thereafter until the husbanding agent submits an invoice for the many details attended to by the agent occasioned by the vessel’s visit to Virginia, constitutes “doing business . . . or . . . transacting affairs” within Virginia. Alcalde v. The Los Mayas, 184 F. Supp. 873, 1960 U.S. Dist. LEXIS 4107 (E.D. Va. 1960).

    Where the only affairs transacted in Virginia by a ship’s husbanding agent were limited to the duty to see to the welfare of an injured seaman, arrange for his care and cure, and attend to his repatriation, such affairs were isolated instances too remotely associated with the constructive presence of a foreign shipping company to permit the exercise of jurisdiction. Alcalde v. The Los Mayas, 184 F. Supp. 873, 1960 U.S. Dist. LEXIS 4107 (E.D. Va. 1960).

    Foreign corporation held not to be doing business in State. —

    See Iliff v. American Fire Apparatus Co., 277 F.2d 360, 1960 U.S. App. LEXIS 4866 (4th Cir. 1960).

    CIRCUIT COURT OPINIONS

    Jurisdiction to enforce subpoena. —

    Where a subpoena was served on a foreign corporation’s registered agent in Virginia, the court had jurisdiction to adjudicate the motion to compel compliance with the subpoena. Hadeed Carpet Cleaning, Inc. v. John Doe # 1, 86 Va. Cir. 59, 2012 Va. Cir. LEXIS 101 (Alexandria Nov. 19, 2012), aff'd, 62 Va. App. 678, 752 S.E.2d 554, 2014 Va. App. LEXIS 1 (2014).

    Amendment of complaint. —

    Judgment creditor’s claim against a corporation was dismissed because although acting in good faith, the judgment creditor either served only the wrong entity or failed by timely amendment to bring the proper entity before the circuit court for adjudication of its claim; the complaint required amendment to allege that it was a Florida entity rather than a Virginia corporation that was charged with the claim averred, but it would be error to permit amendment at the late stage of trial. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017), vacated, rev'd, 300 Va. 25 , 859 S.E.2d 651, 2021 Va. LEXIS 71 (2021).

    § 8.01-302. Repealed by Acts 2002, c. 702.

    Cross references.

    As to service of process on foreign or domestic corporations generally, see §§ 8.01-299 and 8.01-301 .

    § 8.01-303. On whom process served when corporation operated by trustee or receiver.

    Subject to § 8.01-286.1 , when any corporation is operated by a trustee or by a receiver appointed by any court, in any action against such corporation, process may be served on its trustee or receiver; and if there is more than one such trustee or receiver, then service may be on any one of them. In the event that no service of process may be had on any such trustee or receiver, then process may be served by any other mode of service upon corporations authorized by this chapter.

    History. Code 1950, § 8-64; 1977, c. 617; 2005, c. 866.

    REVISERS’ NOTE

    Section 8.01-303 updates former § 8-64. References to lessees in former § 8-64 are eliminated as no longer appropriate, since lessees should not be agents for the service of process on lessors. Service on the receiver or trustee of the corporation is the primary means of obtaining jurisdiction, but if unavailable then process may be served by any other appropriate method. The only substantive change is the deletion of the last sentence of former § 8-64 which makes service by publication on a receiver or trustee the equivalent of personal service. Such a provision is deemed unnecessary and constitutionally suspect; see i.e., Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 (1878).

    The 2005 amendments.

    The 2005 amendment by c. 866 added “Subject to § 8.01-286.1 ” at the beginning of the section; and substituted “is” for “be” preceding “more than one such trustee.”

    Law Review.

    For note, “Obtaining Jurisdiction Over Corporations in Virginia,” see 12 U. Rich. L. Rev. 369 (1978).

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Process, § 23.

    § 8.01-304. How process served on copartner or partnership.

    Subject to § 8.01-286.1 , process against a copartner or partnership may be served upon a general partner, and it shall be deemed service upon the partnership and upon each partner individually named in the action, provided the person served is not a plaintiff in the suit and provided the matter in suit is a partnership matter.

    Provided further that process may be served upon a limited partner in any proceeding to enforce a limited partner’s liability to the partnership.

    History. Code 1950, § 8-59.1; 1950, p. 455; 1977, c. 617; 2005, c. 866.

    REVISERS’ NOTE

    Section 8.01-304 draws a distinction between general partnerships and limited partnerships. The section makes no substantive change to former § 8-59.1 but clarifies the manner in which service may be made on a limited partnership as provided by § 50-73.7 . Because the general partner controls the business, process must be served on a general rather than a limited partner unless the action is to enforce the limited partner’s liability to the partnership.

    Note: Former § 8-65 (How served . . .) is deleted by this revision because of statewide service under § 8.01-292 .

    The 2005 amendments.

    The 2005 amendment by c. 866 added “Subject to § 8.01-286.1 ” at the beginning of the section.

    Michie’s Jurisprudence.

    For related discussion, see 14A M.J. Partnership, § 87.

    CIRCUIT COURT OPINIONS

    Service on general partner. —

    Where an estate administrator for a deceased patient filed a wrongful death action against a health center and others, which center was owned and operated by two limited partnerships, each of which had a general partner as a member, the administrator’s service pursuant to § 8.01-304 and § 50-73.7 of the Revised Uniform Limited Partnership Act on the general partner within the two-year limitations period of § 8.01-244 was proper and withstood challenge, as service on the limited partnerships was not required by the Revised Uniform Partnership Act, §§ 50-73.79 and 50-73.149 , but rather, it was only suggested as one possible method pursuant to § 50-73.97 .Lucas v. Med. Facilities of Am., Inc., 74 Va. Cir. 206, 2007 Va. Cir. LEXIS 180 (Roanoke County Sept. 28, 2007).

    § 8.01-305. Process against unincorporated associations or orders, or unincorporated common carriers.

    Subject to § 8.01-286.1 , process against an unincorporated (i) association, (ii) order, or (iii) common carrier, may be served on any officer, trustee, director, staff member or other agent.

    History. Code 1950, §§ 8-66, 8-67; 1962, c. 250; 1977, c. 617; 2005, c. 866.

    REVISERS’ NOTE

    Section 8.01-305 consolidates former §§ 8-66 and 8-67. The first sentence of former § 8-66 is transferred to § 8.01-15 . Statewide service, § 8.01-292 , and the availability of orders of publication under § 8.01-316 make associated portions of former § 8-67 redundant. The terms listed in § 8.01-305 are substituted for and are inclusive of the job titles specified in former § 8-66.

    The 2005 amendments.

    The 2005 amendment by c. 866 added “Subject to § 8.01-286.1 ” at the beginning of the section.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Associations and Clubs, § 6.

    § 8.01-306. Process against unincorporated associations or orders, or unincorporated common carriers; principal office outside Virginia and business transactions in Virginia.

    Subject to § 8.01-286.1 , if an unincorporated (i) association, (ii) order, or (iii) common carrier has its principal office outside Virginia and transacts business or affairs in the Commonwealth, process may be served on any officer, trustee, director, staff member, or agent of such association, order, or carrier in the city or county in which he may be found or on the clerk of the State Corporation Commission, who shall be deemed by virtue of such transaction of business or affairs in the Commonwealth to have been appointed statutory agent of such association, order, or carrier upon whom may be made service of process in accordance with § 12.1-19.1 . Service, when duly made, shall constitute sufficient foundation for a personal judgment against such association, order or carrier. If service may not be had as aforesaid, then on affidavit of that fact an order of publication may be awarded as provided by §§ 8.01-316 and 8.01-317 .

    History. Code 1950, § 8-66.1; 1962, c. 250; 1977, c. 617; 1991, c. 672; 2005, c. 866.

    REVISERS’ NOTE

    While former § 8-66.1 provided that a record be kept, § 8.01-306 keys to § 8.01-312 which requires that an affidavit of compliance must be filed by the clerk of the State Corporation Commission in the office of the clerk of the court in which the action is pending. This change conforms with the procedure for §§ 8.01-307 to 8.01-313 .

    Editor’s note.

    A sentence in this section referring to compliance with § 8.01-312 , referred to in the Revisers’ Note above, was deleted from this section by Acts 1991, c. 672.

    The 2005 amendments.

    The 2005 amendment by c. 866 added “Subject to § 8.01-286.1 ” at the beginning of the section.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Associations and Clubs, § 6.

    § 8.01-307. Definition of terms “motor vehicle” and “nonresident” in motor vehicle and aircraft accident cases.

    For the purpose of §§ 8.01-308 through 8.01-313 :

    1. The term “motor vehicle” shall mean every vehicle which is self-propelled or designed for self-propulsion and every vehicle drawn by or designed to be drawn by a motor vehicle and includes every device in, upon, or by which any person or property is or can be transported or drawn upon a highway, except devices moved by human or animal power and devices used exclusively upon stationary rails or tracks.
    2. The term “nonresident” includes any person who, though a resident of the Commonwealth when the accident or collision specified in § 8.01-308 or § 8.01-309 occurred, has been continuously outside the Commonwealth for at least sixty days next preceding the date when process is left with the Commissioner of the Department of Motor Vehicles or the Secretary of the Commonwealth and includes any person against whom an order of publication may be issued under the provisions of § 8.01-316 .

    History. Code 1950, § 8-67.1; 1950, p. 620; 1952, c. 681; 1956, c. 64; 1966, c. 518; 1977, c. 617.

    REVISERS’ NOTE

    Sections 8.01-307 through 8.01-313 condense former §§ 8-67.1 through 8-67.4 without altering the substance of the former provisions. Though the revision has significantly altered the working and organization of the former sections, §§ 8.01-307 through 8.01-313 do not change the procedure or substance of former law.

    Cross references.

    As to registration of motor vehicles by nonresidents, see §§ 46.2-655 through 46.2-661.

    Law Review.

    For comment on saving statute’s effect on limitations of actions with long-arm jurisdiction, see 26 Wash. & Lee L. Rev. 366 (1969).

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Automobiles, §§ 78, 80.

    CASE NOTES

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    This section is in derogation of the common law and must be strictly construed. Warner v. Maddox, 68 F. Supp. 27, 1946 U.S. Dist. LEXIS 2089 (D. Va. 1946).

    Due process. —

    In considering whether this section complies with the requirements of due process, the crucial issue is the extent of the defendant’s contacts with the jurisdiction. North River Ins. Co. v. Davis, 237 F. Supp. 187, 1965 U.S. Dist. LEXIS 6452 (W.D. Va. 1965), aff'd, 392 F.2d 571, 1968 U.S. App. LEXIS 7701 (4th Cir. 1968).

    Virginia may provide for substituted service upon former residents of the State in actions arising from acts done in the State during the period of their residence. North River Ins. Co. v. Davis, 237 F. Supp. 187, 1965 U.S. Dist. LEXIS 6452 (W.D. Va. 1965), aff'd, 392 F.2d 571, 1968 U.S. App. LEXIS 7701 (4th Cir. 1968).

    Section renders § 8.01-229 inapplicable. —

    Where, under this section and § 8.01-310 , plaintiff can obtain service of process upon defendant before the expiration of the two-year limitation period prescribed by § 8.01-243 and secure a valid personal judgment if he is so entitled, his remedy is complete and unaffected by the absence of defendant, and § 8.01-229 , the tolling statute, is not applicable. Bergman v. Turpin, 206 Va. 539 , 145 S.E.2d 135, 1965 Va. LEXIS 231 (1965) (commented on in 7 Wm. & Mary L. Rev. 406 (1966)).

    Section authorizes service on nonresident joint tort-feasor in action for contribution. —

    A passenger on a bus operated by plaintiff brought an action against plaintiff and also against the owner and the driver of a truck for injuries received by her as a result of a collision between plaintiff’s bus and the truck. Plaintiff effected a settlement in good faith and sued the owner, the driver, and the lessee-operator of the truck for contribution as joint tort-feasors. As nonresidents, defendants were served by service of process upon the Commissioner of the Division of Motor Vehicles under this section. They appeared specially and moved to quash the process as void, alleging that this section had no application. This motion was properly overruled, for this section by express terms covers a situation of this kind and authorizes such process and service thereof. McKay v. Citizens Rapid Transit Co., 190 Va. 851 , 59 S.E.2d 121, 1950 Va. LEXIS 175 (1950).

    Evidence held sufficient to show agency. —

    Evidence held to show that driver of car was agent of defendant foreign corporation so that latter could properly be served with process under this and the following section. Barber v. Textile Mach. Works, 178 Va. 435 , 17 S.E.2d 359, 1941 Va. LEXIS 179 (1941).

    Relationship with Virginia’s poor debtor exemption statute. —

    Debtors’ powerboat did not constitute a motor vehicle for which they could claim an exemption under the poor debtor’s exemption of § 34-26 because, considering the dictionary definition as well as the way the term “motor vehicle” was used elsewhere in the Code of Virginia, the General Assembly did not intend the term “motor vehicle” as used in the exemption statute to include a powerboat, which did not operate on a highway, did not have rubber tires for use on a highway, and was an entirely different creature, a vessel used for transportation on water. In re Potter, No. 08-17658-SSM, 2009 Bankr. LEXIS 804 (Bankr. E.D. Va. Mar. 24, 2009).

    § 8.01-308. Service on Commissioner of the Department of Motor Vehicles as agent for nonresident motor vehicle operator.

    Any operation in the Commonwealth of a motor vehicle by a nonresident, including those nonresidents defined in subdivision 2 of § 8.01-307 , either in person or by an agent or employee, shall be deemed equivalent to an appointment by such nonresident of the Commissioner of the Department of Motor Vehicles, and his successors in office, to be the attorney or statutory agent of such nonresident for the purpose of service of process in any action against him growing out of any accident or collision in which such nonresident, his agent, or his employee may be involved while operating motor vehicles in this Commonwealth. Acceptance by a nonresident of the rights and privileges conferred by Article 5 (§ 46.2-655 et seq.) of Chapter 6 of Title 46.2 shall have the same effect under this section as the operation of such motor vehicle, by such nonresident, his agent, or his employee.

    History. Code 1950, § 8-67.1; 1950, p. 620; 1952, c. 681; 1956, c. 64; 1966, c. 518; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Automobiles, §§ 78, 80.

    CIRCUIT COURT OPINIONS

    No demonstration of devoted effort to locate defendant. —

    Defendant’s motion for an extension of time to file grounds for her defense, which was filed by counsel hired by her insurer, was denied, where she failed to show that due diligence by the plaintiff would have resulted in defendant being found; where at the time of the filing of the motion defendant had not been found, no such showing was made. Lawson v. Byrd, 64 Va. Cir. 450, 2004 Va. Cir. LEXIS 189 (Richmond May 27, 2004).

    § 8.01-309. Service on Secretary of Commonwealth as agent of nonresident operator or owner of aircraft.

    Any nonresident owner or operator of any aircraft that is operated over and above the land and waters of the Commonwealth or uses aviation facilities within the Commonwealth, shall by such operation and use appoint the Secretary of the Commonwealth as his statutory agent for the service of process in any action against him growing out of any accident or collision occurring within or above the Commonwealth in which such aircraft is involved.

    History. Code 1950, § 8-67.4; 1952, c. 384; 1954, c. 333; 1977, c. 617.

    Law Review.

    For article on the law governing airplane accidents, see 39 Wash. & Lee L. Rev. 1303 (1982).

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Aviation, § 1.

    § 8.01-310. How service made on Commissioner and Secretary; appointment binding.

    1. Service of process on either the Commissioner of the Department of Motor Vehicles as authorized under § 8.01-308 or on the Secretary of the Commonwealth as authorized under § 8.01-309 shall be made by the plaintiff or his agent or the sheriff leaving a copy of such process together with the fee for service of process on parties, in the amount prescribed in § 2.2-409, for each party to be thus served, in the hands, or in the office, of the Commissioner or the Secretary, and such service shall be sufficient upon the nonresident and shall be effective on the date when service is made on the Commissioner or the Secretary. All fees collected by the Commissioner pursuant to the provisions of this section shall be paid into the state treasury and shall be set aside as a special fund to be used to meet the expenses of the Department of Motor Vehicles.
    2. Appointment of the Commissioner or Secretary as attorney or agent for the service of process on a nonresident under § 8.01-308 or 8.01-309 shall be irrevocable and binding upon the executor or other personal representative of such nonresident:
      1. Where a nonresident has died before the commencement of an action against him regarding an accident or collision under § 8.01-308 or 8.01-309 shall be irrevocable and binding upon the executor or other personal representative of such nonresident; or
      2. Where a nonresident dies after the commencement of an action against him regarding an accident or collision under § 8.01-308 or 8.01-309, the action shall continue and shall be irrevocable and binding upon his executor, administrator, or other personal representative with such additional notice of the pendency of the action as the court deems proper.

    History. Code 1950, §§ 8-67.2, 8-67.4; 1952, c. 384; 1954, c. 333; 1970, c. 680; 1972, c. 408; 1976, c. 26; 1977, c. 617; 1987, c. 696; 1992, c. 459; 2000, c. 579; 2013, c. 113.

    The 2000 amendments.

    The 2000 amendment by c. 579, in the first sentence of subsection A, substituted “the fee for service of process on parties, in the amount prescribed in § 2.1-71.2,” for “a fee of fifteen dollars”.

    The 2013 amendments.

    The 2013 amendment by c. 113 inserted “the plaintiff or his agent or the sheriff” and “and shall be effective on the date when service is made on the Commissioner or the Secretary” in the first sentence of subsection A, and made minor stylistic changes throughout the section.

    Law Review.

    For survey of recent legislation on civil procedure and service of process on Commissioner of Motor Vehicles, see 5 U. Rich. L. Rev. 186 (1970).

    For survey of Virginia law on practice and pleading for the year 1969-1970, see 56 Va. L. Rev. 1500 (1970).

    For article on the law governing airplane accidents, see 39 Wash. & Lee L. Rev. 1303 (1982).

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Automobiles, §§ 78, 80.

    § 8.01-311. Continuance of action where service made on Commissioner or Secretary.

    The court, in which an action is pending against a nonresident growing out of an accident or collision as specified in §§ 8.01-308 and 8.01-309 , may order such continuances as necessary to afford such nonresident reasonable opportunity to defend the action.

    History. Code 1950, § 8-67.3; 1954, c. 547; 1977, c. 617.

    § 8.01-312. Effect of service on statutory agent; duties of such agent.

    1. Service of process on the statutory agent shall have the same legal force and validity as if served within the Commonwealth personally upon the person for whom it is intended. It shall be the duty of the statutory agent to:
      1. Provide a receipt to a party seeking service who serves process on the statutory agent by hand delivery or any other method that does not provide a return of service or other means showing the date on which service on the statutory agent was accomplished. The party seeking service shall be responsible for filing such receipt in the office of the clerk of court in which the action is pending;
      2. Forthwith send by registered or certified mail, with return receipt requested, a copy of the process to the person named therein and for whom the statutory agent is receiving the process; and
      3. File an affidavit of compliance with this section with the papers in the action; this filing shall be made in the office of the clerk of the court in which the action is pending.
    2. Unless otherwise provided by § 8.01-313 and subject to the provisions of § 8.01-316 , the address for the mailing of the process required by this section shall be that as provided by the party seeking service.
    3. The time for a nonresident to respond to process sent by the statutory agent shall run from the date when the affidavit of compliance is filed in the office of the clerk of the court in which the action is pending.

    History. Code 1950, § 8-67.2; 1954, c. 333; 1970, c. 680; 1972, c. 408; 1976, c. 26; 1977, c. 617; 2013, c. 113.

    The 2013 amendments.

    The 2013 amendment by c. 113, in subsection A, added “It shall be the duty of the statutory agent to” at the end of the introductory paragraph, added subdivision A 1 and the subdivision A 2 and A 3 designators, deleted “Provided that such agent shall” at the beginning of subdivision A 2, deleted “Provided further that the statutory agent shall” at the beginning of subdivision A 3; and added subsection C.

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Automobiles, §§ 78, 80.

    CASE NOTES

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The terms “the statute” and “this section,” as used below, refer to former provisions.

    This section is constitutional. —

    This section makes reasonable provision for probable communication and is constitutional. Carroll v. Hutchinson, 172 Va. 43 , 200 S.E. 644 , 1939 Va. LEXIS 219 (1939).

    But it is in derogation of the common law and must be strictly construed. Warner v. Maddox, 68 F. Supp. 27, 1946 U.S. Dist. LEXIS 2089 (D. Va. 1946).

    Failure to comply prevents valid judgment. —

    This section definitely requires a copy of the summons or notice to be forthwith sent to the defendant or defendants; therefore, failure to comply with that certain and definite provision of the section cannot result in any valid judgment against the defendant. Weiss v. Magnussen, 13 F. Supp. 948, 1936 U.S. Dist. LEXIS 1568 (D. Va. 1936).

    Under the provisions of this section, failure on the part of the plaintiff to furnish the correct information to enable him to send the summons or notice to the defendant or defendants will prevent the plaintiff from obtaining any valid judgment against the defendants. Weiss v. Magnussen, 13 F. Supp. 948, 1936 U.S. Dist. LEXIS 1568 (D. Va. 1936).

    Section does not provide for service upon a personal representative. —

    See Warner v. Maddox, 68 F. Supp. 27, 1946 U.S. Dist. LEXIS 2089 (D. Va. 1946).

    Meaning of “forthwith.” —

    It was early settled in Virginia that “forthwith” means with “due diligence, under all the circumstances.” Wooddy v. Old Dominion Ins. Co., 72 Va. (31 Gratt.) 362, 1879 Va. LEXIS 10 (1879); Omohundro v. Palmer, 158 Va. 693 , 164 S.E. 541 , 1932 Va. LEXIS 288 (1932).

    There is no precise definition, so far as time is concerned, of the word “forthwith.” The term does not in all cases mean instanter, but it does have a relative meaning, and has been construed by the courts to mean “within a reasonable time,” or with reasonable celerity or reasonable dispatch, depending upon the facts and circumstances of the particular case. Reynolds v. Dorrance, 94 F.2d 184, 1938 U.S. App. LEXIS 4383 (4th Cir. 1938).

    There is no accurate definition of the term “forthwith” and the mailing within a reasonably prompt time, where the interest of none of the parties has been affected, would seem to be a compliance with the statute. Devier v. George Cole Motor Co., 27 F. Supp. 978, 1939 U.S. Dist. LEXIS 2774 (D. Va. 1939).

    Prompt correction of error held substantial compliance. —

    Where the notices were promptly mailed to the defendant at a wrong address the day after they were filed, and when the error in the defendant’s address was discovered and his right address ascertained they were again promptly mailed to him by the official, and the notices were received by the defendant 21 days prior to the return day of the notices, it was held that the notices were served in a manner substantially complying with this section. Reynolds v. Dorrance, 94 F.2d 184, 1938 U.S. App. LEXIS 4383 (4th Cir. 1938).

    The statute does not require delivery or receipt of the notice. It requires that it be sent by registered mail to the defendant. The statute is not violative of the United States Constitution if it makes reasonable provision for probable communication of notice to the defendant. The court recognizes the intention of the legislature to be that the place to which the notice is sent must be one at which receipt will probably be had by the addressee. Powell v. Knight, 74 F. Supp. 191, 1947 U.S. Dist. LEXIS 2050 (D. Va. 1947).

    And the return receipt need not be filed as an exhibit. The request for a return receipt was never essential. Powell v. Knight, 74 F. Supp. 191, 1947 U.S. Dist. LEXIS 2050 (D. Va. 1947).

    Purpose of return receipt. —

    The only purpose of the return receipt is to verify delivery to the addressee and it would seem to follow that if a return receipt is not mandatory under this section, actual receipt by the addressee of a copy of summons and complaint sent by the official to the residence of the nonresident defendant is not mandatory in order to comply with this section and effect valid process. Powell v. Knight, 74 F. Supp. 191, 1947 U.S. Dist. LEXIS 2050 (D. Va. 1947).

    Service valid despite court being advised notice returned undelivered. —

    Trial court had jurisdiction over defendant, who was served in accordance with the statutory requirements of former §§ 46.1-387.5 and 8-67.2, where the trial court was advised that the statutory notice given defendant of the proceedings was returned undelivered; the trial court did have jurisdiction over defendant because service was effectuated in accordance with the applicable statute. Steed v. Commonwealth, 11 Va. App. 175, 397 S.E.2d 281, 7 Va. Law Rep. 592, 1990 Va. App. LEXIS 178 (1990).

    Affidavit of counsel is not necessary. —

    It was contended that the service of the notices of motion was defective because counsel who left the notices with the Director (now Commissioner) filed no affidavit. It was held that such an affidavit is not necessary. Reynolds v. Dorrance, 94 F.2d 184, 1938 U.S. App. LEXIS 4383 (4th Cir. 1938).

    § 8.01-313. Specific addresses for mailing by statutory agent.

    1. For the statutory agent appointed pursuant to §§ 8.01-308 and 8.01-309 , the address for the mailing of the process as required by § 8.01-312 shall be the last known address of the nonresident or, where appropriate under subdivision B 1 or 2 of § 8.01-310 , of the executor, administrator, or other personal representative of the nonresident. However, upon the filing of an affidavit by the plaintiff that he does not know and is unable with due diligence to ascertain any post-office address of such nonresident, service of process on the statutory agent shall be sufficient without the mailing otherwise required by this section. Provided further that:
      1. In the case of a nonresident defendant licensed by the Commonwealth to operate a motor vehicle, the last address reported by such defendant to the Department of Motor Vehicles as his address on an application for or renewal of driving privileges shall be deemed to be the address of the defendant for the purpose of the mailing required by this section if no other address is known, and, in any case in which the affidavit provided for in § 8.01-316 is filed, such a defendant, by so notifying the Department of such an address, and by failing to notify the Department of any change therein, shall be deemed to have appointed the Commissioner of the Department of Motor Vehicles his statutory agent for service of process in an action arising out of operation of a motor vehicle by him in the Commonwealth, and to have accepted as valid service such mailing to such address; or
      2. In the case of a nonresident defendant not licensed by the Commonwealth to operate a motor vehicle, the address shown on the copy of the report of accident required by § 46.2-372 filed by or for him with the Department, and on file at the office of the Department, or the address reported by such a defendant to any state or local police officer, or sheriff investigating the accident sued on, if no other address is known, shall be conclusively presumed to be a valid address of such defendant for the purpose of the mailing provided for in this section, and his so reporting of an incorrect address, or his moving from the address so reported without making provision for forwarding to him of mail directed thereto, shall be deemed to be a waiver of notice and a consent to and acceptance of service of process served upon the Commissioner of the Department of Motor Vehicles as provided in this section.
    2. For the statutory agent appointed pursuant to § 64.2-1426 , the address for the mailing of process as required by § 8.01-312 shall be the address of the fiduciary’s statutory agent as contained in the written consent most recently filed with the clerk of the circuit court wherein the qualification of such fiduciary was had or, in the event of the death, removal, resignation or absence from the Commonwealth of such statutory agent, or in the event that such statutory agent cannot with due diligence be found at such address, the address of the clerk of such circuit court.

    History. Code 1950, § 8-67.2; 1954, c. 333; 1970, c. 680; 1972, c. 408; 1976, c. 26; 1977, c. 617; 1983, c. 467; 1984, c. 780; 1991, c. 672; 2020, cc. 1227, 1246.

    Editor’s note.

    At the direction of the Virginia Code Commission, the reference to “§ 26-59” was changed to “§ 64.2-1426 ” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

    Acts 2020, cc. 1227 and 1246, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2021.”

    Acts 2020, cc. 1227 and 1246, cl. 4 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.”

    The 2020 amendments.

    The 2020 amendments by cc. 1227 and 1246, effective January 1, 2021, are identical, and substituted “driving privileges” for “a driver’s license” in subdivision A 1 and made stylistic changes.

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Automobiles, §§ 78, 80.

    CASE NOTES

    Constitutionality. —

    Subdivision A 2, providing for use of the nonresident defendant’s address as reported on the accident report or as reported by the defendant to the investigating officer, is strictly a secondary provision which is triggered only in the event that “no other address is known.” Read in its entirety, this section requires that the plaintiff utilize the last-known address of the defendant, and that failing that, the accident report address or address reported to the investigating officer may be used. Consequently, this section requires notice of service that is reasonably probable to result in a nonresident defendant receiving actual notice and is therefore constitutional. Banks v. Leon, 975 F. Supp. 815, 1997 U.S. Dist. LEXIS 13591 (W.D. Va. 1997).

    § 8.01-314. Service on attorney after entry of general appearance by such attorney.

    When an attorney authorized to practice law in this Commonwealth has entered a general appearance for any party, any process, order or other legal papers to be used in the proceeding may be served on such attorney of record. Such service shall have the same effect as if service had been made upon such party personally; provided, however, that in any proceeding in which a final decree or order has been entered, service on an attorney as provided herein shall not be sufficient to constitute personal jurisdiction over a party in any proceeding citing that party for contempt, either civil or criminal, unless personal service is also made on the party.

    Provided, further, that if such attorney objects by motion within five days after such legal paper has been so served upon him, the court shall enter an order in the proceeding directing the manner of service of such legal paper.

    History. Code 1950, § 8-69; 1977, c. 617; 1981, c. 495.

    REVISERS’ NOTE

    The only significant change in former § 8-69 accomplished by § 8.01-314 is the inversion of the present provision requiring five days’ notice before entry of an order directing service on the attorney of record so that service on the attorney is good without more unless the attorney objects within five days of receiving such service. The change allows the same amount of time for the attorney served to act, but requires service to be made only once rather than twice as under the former statute. Service would be made in accordance with Rule 1:12.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attorney and Client, §§ 19, 25.

    CASE NOTES

    This section compared with § 8.01-319 . —

    Section 8.01-319 imposes different, not “less,” notice requirements for a pro se litigant than one represented by counsel. A pro se litigant is required to advise the clerk of court of his address and any change in it. If a litigant is not pro se, but is represented by counsel, papers may be served on “an attorney authorized to practice law in this Commonwealth” who has entered a general appearance for the litigant pursuant to this section. Both of these provisions serve to ensure that notice of the proceedings may be served on the litigants. Eddine v. Eddine, 12 Va. App. 760, 406 S.E.2d 914, 8 Va. Law Rep. 10, 1991 Va. App. LEXIS 167 (1991).

    This section deals, in broad language, with cases generally. Davis v. Davis, 206 Va. 381 , 143 S.E.2d 835, 1965 Va. LEXIS 210 (1965) (decided under prior law).

    Failure of litigant to inform clerk of change of address. —

    If a litigant wishes to be informed of the proceedings, he or she must either keep the court advised of where service may be accomplished or be represented by counsel upon whom service may be had. In a domestic relations case the husband’s failure to receive notice because he moved from his residence without notifying the clerk for his new address did not deprive him of due process of law. Eddine v. Eddine, 12 Va. App. 760, 406 S.E.2d 914, 8 Va. Law Rep. 10, 1991 Va. App. LEXIS 167 (1991).

    Service held valid where subsequent proceeding was continuation of first proceeding. —

    In a proceeding on a motion to vacate, service of a copy of the motion on the attorney who had been defendant’s counsel of record in a prohibition proceeding was not defective, since the two proceedings were continuing stages of a proceeding initiated by the defendant and counsel had never withdrawn by leave of court and notice to defendant, pursuant to Supreme Court Rule 1:5. Virginia Dep't of Cors. v. Crowley, 227 Va. 254 , 316 S.E.2d 439, 1984 Va. LEXIS 241 (1984).

    Until counsel had effectively withdrawn pursuant to provisions of Rule 1:5 of the Rules of the Virginia Supreme Court, service upon him was proper. Francis v. Francis, 30 Va. App. 584, 518 S.E.2d 842, 1999 Va. App. LEXIS 526 (1999).

    CIRCUIT COURT OPINIONS

    Default vacated where attorney had withdrawn. —

    Mailing of a wife’s post decree motion to determine support arrearage, which was mailed to an attorney who had withdrawn as counsel for the husband months before the final decree was entered over 11 years before, was not valid service, and a default judgment was vacated. Shahbazian v. Nelson, 65 Va. Cir. 210, 2004 Va. Cir. LEXIS 141 (Fairfax County July 14, 2004).

    General appearance not made. —

    Under Va. Sup. Ct. R. 3:9 [see now Rule 3:10], the second defendant had not made a general appearance for purposes of the first defendant’s cross-claim because it had not answered it or appeared in any way as defendants to the cross-claim; therefore, the first defendant’s mailing a copy of the cross-claim to the second defendant’s counsel was not proper service under Va. Sup. Ct. R. 1:12. Bd. of Dirs. of the Lesner Pointe Condo. on the Chesapeake Bay Ass'n v. Harbour Point Bldg. Corp., 2002 Va. Cir. LEXIS 421 (Virginia Beach Oct. 25, 2002) (see also,).Lesner Pointe Condo. Ass'n v. Harbour Point Bldg. Corp., 61 Va. Cir. 609, 2002 Va. Cir. LEXIS 424 (Virginia Beach Apr. 10, 2002).

    § 8.01-315. Notice to be mailed defendant when service accepted by another.

    No judgment shall be rendered upon, or by virtue of, any instrument in writing authorizing the acceptance of service of process by another on behalf of any person who is obligated upon such instrument, when such service is accepted as therein authorized, unless the person accepting service shall have made and filed with the court an affidavit showing that he mailed or caused to be mailed to the defendant at his last known post-office address at least ten days before such judgment is to be rendered a notice stating the time when and place where the entry of such judgment would be requested.

    History. Code 1950, § 8-70; 1977, c. 617.

    § 8.01-316. Service by publication; when available.

    1. Except in condemnation actions, an order of publication may be entered against a defendant in the following manner:
      1. An affidavit by a party seeking service stating one or more of the following grounds:
        1. That the party to be served is (i) a foreign corporation, (ii) a foreign unincorporated association, order, or a foreign unincorporated common carrier, or (iii) a nonresident individual, other than a nonresident individual fiduciary who has appointed a statutory agent under § 64.2-1426 ; or
        2. That diligence has been used without effect to ascertain the location of the party to be served; or
        3. That the last known residence of the party to be served was in the county or city in which service is sought and that a return has been filed by the sheriff that the process has been in his hands for twenty-one days and that he has been unable to make service; or
    2. The cost of such publication shall be paid initially by the party seeking service; however, such costs ultimately may be recoverable pursuant to § 17.1-601 .

    2. In any action, when a pleading (i) states that there are or may be persons, whose names are unknown, interested in the subject to be divided or disposed of; (ii) briefly describes the nature of such interest; and (iii) makes such persons defendants by the general description of “parties unknown”; or

    3. In any action, when (i) the number of defendants upon whom process has been served exceeds ten and (ii) it appears by a pleading, or exhibit filed, that such defendants represent like interests with the parties not served with process.Under subdivisions 1 and 2 of this subsection, the order of publication may be entered by the clerk of the court. Under this subdivision such order may be entered only by the court. However, any orders not properly entered, but processed by a clerk prior to July 1, 2010, shall be deemed to have been properly entered.Every affidavit for an order of publication shall state the last known post office address of the party against whom publication is asked, or if such address is unknown, the affidavit shall state that fact.

    History. Code 1950, § 8-71; 1952, c. 522; 1977, c. 617; 1982, c. 384; 1983, c. 467; 1996, c. 352; 1999, c. 353; 2010, c. 827.

    REVISERS’ NOTE

    Section 8.01-316 amends former § 8-71: (1) in subsection 1 a, foreign unincorporated associations, orders and common carriers are added to the list of parties which can be served by order of publication; (2) subsection 1 c, which consolidates former § 8-71 and former Rule 2:6 (b), does not substantially change former practice, because the “twice delivered” requirement of former § 8-71 has been eliminated from Rule 2:6. Other minor changes have been made.

    Cross references.

    As to service by publication on corporations, see §§ 8.01-301 and 8.01-303 .

    As to service by publication on unincorporated associations, see § 8.01-305 .

    As to when order of publication shall be posted and mailed, and time after publication for case to be tried or heard, see § 8.01-317 .

    For statute providing that personal service out of State shall have effect of order of publication, see § 8.01-320 .

    For statutes concerning orders of publication in divorce suits, see §§ 20-104 , 20-105 , 20-112 .

    As to procedure in probate proceedings, see § 64.2-449 .

    As to default where notice is given by publication, see Rule 3:19.

    Editor’s note.

    At the direction of the Virginia Code Commission, the reference to “ § 26-59” was changed to “ § 64.2-1426 ” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

    The 1999 amendment rewrote subsection B, which formerly read: “The cost of such publication shall be paid by the petitioner or applicant.”

    The 2010 amendments.

    The 2010 amendment by c. 827 made a stylistic change in subdivision B 2; and in the last paragraph in subdivision B 3, substituted “subsection” for “section” and added the last sentence.

    Law Review.

    For survey of Virginia law on practice and pleading in the year 1971-1972, see 58 Va. L. Rev. 1309 (1972).

    For discussion of the question of whether Virginia denies indigents the right to divorce, see 12 U. Rich. L. Rev. 735 (1978).

    For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Divorce and Alimony, § 36.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    The purpose of an order of publication, which is in lieu of process, is to bring the defendant into court, to apprise the defendant of the nature of the proceedings, and to notify the party that his or her rights will be affected by the litigation. “Because the notice is constructive only, the order of publication and the statute authorizing it both must be strictly construed.” Dennis v. Jones, 240 Va. 12 , 393 S.E.2d 390, 6 Va. Law Rep. 2523, 1990 Va. LEXIS 102 (1990).

    The object of this section and § 8.01-317 is to protect parties by giving them notice and an opportunity to present a defense, and because service by publication constitutes constructive notice only, these sections must be strictly construed. Khanna v. Khanna, 18 Va. App. 356, 443 S.E.2d 924, 10 Va. Law Rep. 1383, 1994 Va. App. LEXIS 301 (1994).

    Grounds stated must be true and not idle declarations. —

    Even though this section provides that the party seeking service shall file an affidavit “stating” one or more of the required grounds, the grounds so stated must, in fact, be true and not merely idle declarations having no factual basis. Dennis v. Jones, 240 Va. 12 , 393 S.E.2d 390, 6 Va. Law Rep. 2523, 1990 Va. LEXIS 102 (1990).

    Grounds stated in the affidavit must in fact be true and not merely idle declarations having no factual basis for purposes of service by publication. Khanna v. Khanna, 18 Va. App. 356, 443 S.E.2d 924, 10 Va. Law Rep. 1383, 1994 Va. App. LEXIS 301 (1994).

    The noun “diligence” means “devoted and painstaking application to accomplish an undertaking.” The determination whether diligence has been used is a factual question to be decided according to the circumstances of each case. Dennis v. Jones, 240 Va. 12 , 393 S.E.2d 390, 6 Va. Law Rep. 2523, 1990 Va. LEXIS 102 (1990).

    No demonstration of devoted effort to locate defendant. —

    Mere “informal contacts” with unnamed friends at two governmental agencies, made only prior to the sheriff’s effort to serve process, did not demonstrate “devoted and painstaking” efforts to locate defendant, especially where the evidence established without conflict that routine methods were readily available to plaintiff. Dennis v. Jones, 240 Va. 12 , 393 S.E.2d 390, 6 Va. Law Rep. 2523, 1990 Va. LEXIS 102 (1990).

    Husband clearly did not exercise the diligence required in trying to locate wife for purposes of service by publication where it was uncontested that husband knew of and attended the pending criminal proceedings in juvenile and domestic relations court which he initiated by complaint, that he met with wife in court, and that during this same period of time he filed with the circuit court a sworn affidavit stating that he had used due diligence “in attempting to locate [his wife].” Although it was true that he did not know her precise address, he did know of the concurrent proceedings in the juvenile and domestic relations court’s office or from the Commonwealth Attorney’s office, and in addition, husband’s failure to reveal to wife the pending annulment suit prevented her from receiving actual notice by allowing possible acceptance of service. Khanna v. Khanna, 18 Va. App. 356, 443 S.E.2d 924, 10 Va. Law Rep. 1383, 1994 Va. App. LEXIS 301 (1994).

    Default judgment void and should have been set aside. —

    Where, the attempt to serve defendant through the DMV was ineffective, and personal jurisdiction was not obtained over her, the default judgment was void and should have been set aside under the provisions of Code § 8.01-428 (A). Dennis v. Jones, 240 Va. 12 , 393 S.E.2d 390, 6 Va. Law Rep. 2523, 1990 Va. LEXIS 102 (1990).

    Substituted service. —

    Because the circuit court’s determinations were supported by the record, and substituted service of a show cause order was not precluded, the circuit court properly dismissed a husband’s motion to quash service of process; the wife’s evidence included a return of service indicating that the amended show cause order and sworn petition were served on the husband’s mother-in-law at the address that the husband provided in the divorce decree as his residential address of record. Koons v. Crane, 72 Va. App. 720, 853 S.E.2d 524, 2021 Va. App. LEXIS 13 (2021).

    Insufficient affidavit. —

    It is necessary under the order of publication method to file an affidavit stating that the party to be served by the order of publication “is” a nonresident individual; a statement that the individual “may not be” a resident of the Commonwealth is insufficient. Richardson v. Parris, 246 Va. 203 , 435 S.E.2d 389, 10 Va. Law Rep. 238, 1993 Va. LEXIS 118 (1993).

    II.Decisions Under Prior Law.

    Editor’s note.

    The object of this section and § 8.01-317 is to protect the innocent party, provide the defendant with actual notice, and give him an opportunity to make his defense, if he has any. McFarland v. McFarland, 179 Va. 418 , 19 S.E.2d 77, 1942 Va. LEXIS 235 (1942).

    Section is strictly construed. —

    Since notice by publication is constructive only, the order of publication, as well as the statute authorizing it must be strictly construed. Steinman v. Jessee, 108 Va. 567 , 62 S.E. 275 , 1908 Va. LEXIS 69 (1908); Peatross v. Gray, 181 Va. 847 , 27 S.E.2d 203, 1943 Va. LEXIS 233 (1943); Forrer v. Brown, 221 Va. 1098 , 277 S.E.2d 483, 1981 Va. LEXIS 254 (1981).

    The statutes, §§ 8.01-316 and 8.01-317 , authorizing an order of publication as a substitute service of process must be strictly construed and applied. Robertson v. Stone, 199 Va. 41 , 97 S.E.2d 739, 1957 Va. LEXIS 159 (1957).

    And strict compliance is required. —

    Where constructive service of process is allowed in lieu of personal service, the terms of the statute by which it is authorized and prescribed must be strictly followed, or the service will be invalid. Staunton Perpetual Bldg. & Loan v. Haden, 92 Va. 201 , 23 S.E. 285 , 1895 Va. LEXIS 105 (1895).

    Publication in a proceeding under § 4-56 (now repealed) is entirely different from order of publication which is required under this section. Ives v. Commonwealth, 182 Va. 17 , 27 S.E.2d 906, 1943 Va. LEXIS 126 (1943).

    Sufficiency of affidavit to authorize proceedings. —

    The affidavit of the local attorney of a corporation that the names of certain persons to be made defendants to a bill by such corporation are to the affiant unknown is a sufficient compliance with this section to authorize a proceeding by publication against such persons as “parties unknown.” Fayette Land Co. v. Louisville & N.R.R., 93 Va. 274 , 24 S.E. 1016 , 1896 Va. LEXIS 75 (1896).

    Affidavit need not be in record nor reduced to writing. —

    In view of the presumption of regularity, a decree purporting to be against nonresidents, which recited that the order of publication had been duly published and executed, is not open to collateral attack on the ground that the affidavit on which the order was made is not in the record; this section not in terms requiring the affidavit to be reduced to writing. Virginia & W. Va. Coal Co. v. Charles, 251 F. 83, 1917 U.S. Dist. LEXIS 780 (D. Va. 1917), aff'd, 254 F. 379, 1918 U.S. App. LEXIS 1313 (4th Cir. 1918).

    Affidavit must be directly attacked. —

    Infants named as defendants to bill for sale of ancestors’ land to pay debts, against whom order for publication is made upon affidavit of their nonresidence, must show falsity of affidavit either then or after they come of full age, in direct proceedings to avoid the decree entered in the suit, and cannot attack it collaterally. Lawson v. Moorman, 85 Va. 880 , 9 S.E. 150 , 1889 Va. LEXIS 98 (1889).

    Service by publication may be made on nonresident executor as defendant. —

    This section and §§ 8.01-317 to 8.01-320 , relating to orders of publication, though general in their character, afford ample authority for a proceeding by publication against a nonresident executor upon a bill for specific execution of a contract to convey real estate contracted to be sold by him, especially where the beneficiaries under the will are residents of the State, are united as defendants, and are before the court on personal service of process. Clem v. Givens, 106 Va. 145 , 55 S.E. 567 , 1906 Va. LEXIS 116 (1906).

    And on unknown heirs. —

    In a suit for specific performance, a number of persons referred to in the bill as “unknown heirs” were made parties to the proceeding by this general classification and an order of publication was made and published against them as such. No objection was made to the sufficiency of the bill or publication in this respect. It was held that this section expressly authorized this course. Goins v. Garber, 131 Va. 59 , 108 S.E. 868 , 1921 Va. LEXIS 8 (1921).

    CIRCUIT COURT OPINIONS

    Unknown defendants. —

    Plaintiff was not entitled to a default judgment against an unknown defendant (“John Doe”) in his action to have an Internet domain name transferred to him because the court lacked jurisdiction over “John Doe” and an Internet domain name registry where neither the Code of Virginia nor the Rules of the Supreme Court of Virginia authorized the “John Doe” pleading style in Internet domain name disputes, and the registry was a necessary party that had not been joined as a party defendant. Beutler v. Doe (In re "rat.com"), 94 Va. Cir. 154, 2016 Va. Cir. LEXIS 137 (Fairfax County Aug. 16, 2016).

    No demonstration of devoted effort to locate. —

    Defendant’s motion for an extension of time to file grounds for her defense, which was filed by counsel hired by her insurer, was denied, where she failed to show that due diligence by the plaintiff would have resulted in defendant being found; where at the time of the filing of the motion defendant had not been found, no such showing was made. Lawson v. Byrd, 64 Va. Cir. 450, 2004 Va. Cir. LEXIS 189 (Richmond May 27, 2004).

    Attempted service required before service by publication. —

    Because a wife never formally attempted to serve her husband with a complaint for divorce before seeking service by publication, as required by § 8.01-316 A.1.b, the wife committed extrinsic fraud on the court; accordingly, the order of publication and the final decree of divorce were vacated as void. Barua v. Barua, 77 Va. Cir. 22, 2008 Va. Cir. LEXIS 119 (Fairfax County June 16, 2008).

    Service by publication proper. —

    In a quiet title by adverse possession case in which the property occupier used diligence to attempt to locate the owners or the owners’ predecessors without success and it was unknown if they or their successors were living, the occupier properly effectuated service by publication. Additionally, the action was an in rem proceeding over lots of land located in Fairfax County, Virginia. Jones v. Priest, 79 Va. Cir. 39, 2009 Va. Cir. LEXIS 78 (Fairfax County Apr. 8, 2009).

    § 8.01-317. What order of publication to state; how published; when publication in newspaper dispensed with; electronic notice.

    Except in condemnation actions, every order of publication shall give the abbreviated style of the suit, state briefly its object, and require the defendants, or unknown parties, against whom it is entered to appear and protect their interests on or before the date stated in the order which shall be no sooner than 50 days after entry of the order of publication. Such order of publication shall be published once each week for four successive weeks in such newspaper as the court may prescribe, or, if none be so prescribed, as the clerk may direct, and shall be posted at the front door of the courthouse wherein the court is held; also a copy of such order of publication shall be mailed to each of the defendants at the post office address given in the affidavit required by § 8.01-316 . The clerk shall cause copies of the order to be so posted, mailed, and transmitted to the designated newspaper within 20 days after the entry of the order of publication. Upon completion of such publication, the clerk shall file a certificate in the papers of the case that the requirements of this section have been complied with. The court may, in any case where deemed proper, dispense with such publication in a newspaper or may order that appropriate notice be given by electronic means, under such terms and conditions as the court may direct, either in addition to or in lieu of publication in a newspaper, provided that such electronic notice is reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The cost of such publication or notice shall be paid by the petitioner or applicant.

    History. Code 1950, § 8-72; 1977, c. 617; 1982, c. 384; 1996, cc. 352, 710; 2020, c. 159.

    REVISERS’ NOTE

    Section 8.01-317 revises former § 8-72 to mandate that the order of publication contain a specific date by which the party served is required to appear and defend his interests. This clarifies former § 8-72 which required the defendant to appear within 10 days after the last or fourth week of publication and not stipulating when such period was required to commence; instead, under § 8.01-317 publication is required to commence within 10 days of the date the order of publication is entered and the defendant served thereby is required to appear on a date certain specified in the order not less than 50 days after the date of entry of the order.

    Cross references.

    As to publication of interim notice, see § 8.01-319 .

    As to publication of notice of the taking of an account, see § 8.01-611 .

    The 1996 amendment by c. 710 substituted “post office address” for “post-office address,” in the second sentence and substituted “within twenty days” for “within ten days” in the third sentence.

    The 2020 amendments.

    The 2020 amendment by c. 159, in the next to last sentence, deleted “Provided” at the beginning and inserted “or may order that appropriate notice be given by electronic means, under such terms and conditions as the court may direct, either in addition to or in lieu of publication in a newspaper, provided that such electronic notice is reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”; inserted “or notice” in the final sentence; and made stylistic changes.

    Law Review.

    For discussion of the question of whether Virginia denies indigents the right to divorce, see 12 U. Rich. L. Rev. 735 (1978).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Appearances, § 7.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Strict construction of section. —

    The object of this section and § 8.01-316 is to protect parties by giving them notice and an opportunity to present a defense, and because service by publication constitutes constructive notice only, these sections must be strictly construed. Khanna v. Khanna, 18 Va. App. 356, 443 S.E.2d 924, 10 Va. Law Rep. 1383, 1994 Va. App. LEXIS 301 (1994).

    Publication in English. —

    Father had adequate notice of a termination proceeding because credible evidence supported the trial court’s finding that a county department of social services made adequate efforts to give the father notice of the proceedings in the case; the department issued an order of publication in a local newspaper, and the father’s due process rights were not violated when the order of publication was published in English because he would have been put on notice to seek a translation of the document. Perez-Velasquez v. Culpeper County Dep't of Soc. Servs., 2009 Va. App. LEXIS 293 (Va. Ct. App. June 30, 2009).

    Publication in foreign country. —

    Pursuant to Fed. R. Civ. P. 4(f)(3), a creditor was permitted to serve a guarantor, who was believed to reside in Pakistan, through publication in English in two Pakistani newspapers once a week for four weeks in the form dictated by this section because: (1) the creditor attempted service twice under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163; (2) the creditor hired an investigative services firm that was unable to locate the guarantor; (3) the creditor attempted to serve the guarantor through his local counsel; (4) the guarantor’s exact whereabouts were unknown; (5) the guarantor should have had some knowledge that he might be the subject of a lawsuit concerning the promissory notes he guaranteed; (6) the guarantor’s business experience in the United States demonstrated that the guarantor should be able to understand a notice in English; and (7) service by publication was reasonably calculated to provide the guarantor with sufficient notice of the action. BP Prods. N. Am. v. Dagra, 236 F.R.D. 270, 2006 U.S. Dist. LEXIS 38100 (E.D. Va. 2006).

    Compliance requires certificate filing. —

    Compliance with the mailing requirement of this section will not be assumed if certificate attesting to such compliance is absent. Proof that order was posted on a courthouse door and delivered to a newspaper was not proof that the order was also mailed. Instead, the absence of the required certificate plainly suggested the opposite conclusion. Therefore, in the absence of evidence that the clerk’s office had filed a certificate of compliance, service of process was defective. Carlton v. Paxton, 14 Va. App. 105, 415 S.E.2d 600, 8 Va. Law Rep. 2405, 1992 Va. App. LEXIS 89 (1992).

    II.Decisions Under Prior Law.

    Editor’s note.

    The object of this section and § 8.01-316 is to protect the innocent party, provide the defendant with actual notice, and give him an opportunity to make his defense, if he has any. McFarland v. McFarland, 179 Va. 418 , 19 S.E.2d 77, 1942 Va. LEXIS 235 (1942).

    Purpose of order of publication. —

    The order of publication takes the place of process, and its purpose is to bring a party into court, to apprise him of the nature of the proceeding against him, and to notify him that his rights will be affected thereby. Peatross v. Gray, 181 Va. 847 , 27 S.E.2d 203, 1943 Va. LEXIS 233 (1943); Jennings v. City of Norfolk, 198 Va. 277 , 93 S.E.2d 302, 1956 Va. LEXIS 204 (1956); Robertson v. Stone, 199 Va. 41 , 97 S.E.2d 739, 1957 Va. LEXIS 159 (1957).

    Section strictly construed. —

    The statutes, § 8.01-316 and this section, authorizing an order of publication as a substitute service of process must be strictly construed and applied. Robertson v. Stone, 199 Va. 41 , 97 S.E.2d 739, 1957 Va. LEXIS 159 (1957).

    This section does not require the place of appearance to be stated. If the caption of the order shows the style of the suit and the court in which it is pending, this gives the parties sufficient notice where they must appear, and the words “in the clerk’s office of this court” are mere surplusage and may be disregarded. Blalock v. Riddick, 186 Va. 284 , 42 S.E.2d 292, 1947 Va. LEXIS 151 (1947).

    But the names of parties must be stated. —

    An order of publication to commence a suit against parties not previously served with process must state their names. Martin v. South Salem Land Co., 94 Va. 28 , 26 S.E. 591 , 1896 Va. LEXIS 141 (1896).

    And stated correctly. —

    A defendant whose name is “Steinman” is not properly proceeded against by publication where the name is spelled “Stainmau” in the caption of the order which is the notice, and “Stinman” in the part of the publication which is regarded as the warning, although the initials of his Christian name are correctly given in each place. Steinman v. Jessee, 108 Va. 567 , 62 S.E. 275 , 1908 Va. LEXIS 69 (1908).

    Absolute accuracy in identifying party is not required. —

    Although the person or persons to whom the notice is directed must be identified with reasonable certainty absolute accuracy is not required. Robertson v. Stone, 199 Va. 41 , 97 S.E.2d 739, 1957 Va. LEXIS 159 (1957).

    A nonresident party to a partition suit was named in the order of publication as Alma E. Robinson whereas her correct name was Alma E. Robertson. The record showed that she took her interest in the land under her father’s will which named her Robinson, that she had signed deeds to other lands under this name, and that while the order of publication mailed by the clerk to her correct address was returned marked “unclaimed,” she was sent and signed for notice of the hearing before the commissioner. In the light of this evidence the order of publication was a sufficient compliance with the statutes to give the court jurisdiction and its decree ordering the sale was not void. Robertson v. Stone, 199 Va. 41 , 97 S.E.2d 739, 1957 Va. LEXIS 159 (1957).

    Identification of unknown parties. —

    When unknown parties are to be proceeded against, it is essential that the order of publication recite some identifying data concerning such parties, such as the class to which the unknown parties belong or the source or origin of any claim they may have; it is not sufficient to merely recite they are not known without specifying how they may be interested in the subject matter of the suit. Forrer v. Brown, 221 Va. 1098 , 277 S.E.2d 483, 1981 Va. LEXIS 254 (1981).

    Newspaper must be designated. —

    The newspaper in which the order is to be published must be designated in the order. Forrer v. Brown, 221 Va. 1098 , 277 S.E.2d 483, 1981 Va. LEXIS 254 (1981).

    The order of publication must show object of suit. —

    In a suit to set aside a deed made by a special commissioner in a divorce proceeding, process in the wife’s suit for divorce being by order of publication, which merely showed that the object of the suit was to obtain a divorce on the ground of desertion, it was held that property rights which in no wise grew out of the marital relation being involved, the order of publication was not sufficient to apprise the defendant of the object of the suit within the meaning of this section. Watson v. Mose, 165 Va. 661 , 183 S.E. 428 , 1936 Va. LEXIS 251 (1936).

    Copy of order must be posted. —

    Proof that an order of publication has been properly published in a newspaper is not sufficient. It should also be proved that a copy was properly posted. Myrick v. Adams, 18 Va. (4 Munf) 366, 1815 Va. LEXIS 15 (1815).

    Where before an attachment is returned “executed,” an order of publication was made, and the order was not posted by the clerk at the front door of the courthouse on the first day of the court after it is entered, the attachment should be abated. Petty v. Frick Co., 86 Va. 501 , 10 S.E. 886 , 1890 Va. LEXIS 11 (1890).

    Decree which recites that the order of publication was duly executed is conclusive as to proper posting. Craig v. Sebrell, 50 Va. (9 Gratt.) 131, 1852 Va. LEXIS 48 (1852).

    And where the decree states that publication had been properly made, it will be sufficient, and the court will not look into the record for the evidence of the fact. Moore v. Holt, 51 Va. (10 Gratt.) 284, 1853 Va. LEXIS 50 (1853) (see Hunter v. Spotswood, 1 Va. (1 Wash.) 145 (1792); Gibson v. White & Co., 17 Va. (3 Munf.) 94 (1812)).

    Who may make objection for want of due publication. —

    Objection for want of due publication against an absent defendant, may be taken, it would seem, by other defendants who may be affected by the decree against him; and if made in the appellate court, will prove fatal, though the absent defendant is not a party in the appeal. Hunter v. Spotswood, 1 Va. (1 Wash.) 145, 1 Wash. 145, 1792 Va. LEXIS 35 (1792); Gibson v. White & Co., 17 Va. (3 Munf) 94, 1812 Va. LEXIS 18 (1812); Craig v. Sebrell, 50 Va. (9 Gratt.) 131, 1852 Va. LEXIS 48 (1852).

    Order of publication held insufficient for failure properly to state nonresident parties, or interest of unknown parties, or object of suit. Harris v. Deal, 189 Va. 675 , 54 S.E.2d 161, 1949 Va. LEXIS 210 (1949).

    CIRCUIT COURT OPINIONS

    Divorce proceeding. —

    Trial court, in a divorce suit, refused to accept husband’s deposition evidence that was taken before service upon the husband’s wife was completed and in a venue other than the one in which the suit was filed or any of the parties resided or was employed, despite the wife’s signed acknowledgment of a waiver of her rights. Sakowski v. Sakowski, 65 Va. Cir. 249, 2004 Va. Cir. LEXIS 211 (Roanoke July 24, 2004).

    § 8.01-318. Within what time after publication case tried or heard; no subsequent publication required.

    If after an order of publication has been executed, the defendants or unknown parties against whom it is entered shall not appear on or before the date specified in such order, the case may be tried or heard as to them. When the provisions of § 8.01-317 , or, if applicable, the provisions of § 8.01-321 , have been complied with, no other publication or notice shall thereafter be required in any proceeding in court, or before a commissioner, or for the purpose of taking depositions, unless specifically ordered by the court as to such defendants or unknown parties.

    History. Code 1950, § 8-73; 1968, c. 456; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-318 revises former § 8-73, in part to conform to changes made by § 8.01-317 . With regard to notice subsequent to the date specified in the order of publication, the provisions of Rule 2:17 and former § 8-73 are retained, but see § 8.01-427.1 regarding three days notice before a default judgment or decree can be obtained in a circuit court action.

    Note: Former § 8-73.1 (Effect of newspaper suspending publication . . . ) is deleted as superfluous, see § 8.01-317 .

    Editor’s note.

    Section 8.01-427.1 , referred to in the second sentence of the Revisers’ note, was repealed by Acts 1978, c. 426.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Appearances, § 7.

    CASE NOTES

    Analysis

    I.Decisions Under Prior Law.

    Editor’s note.

    Notice of subsequent proceedings. —

    Where an order of publication has been duly executed against nonresident or unknown defendants, no other notice is required to be given them in any proceeding in court, or before a commissioner, or for the purpose of taking depositions, unless specially ordered by the court. But if they so appear, then they are entitled to notice in all the subsequent proceedings in the suit. Burwell v. Burwell, 78 Va. 574 , 1884 Va. LEXIS 31 (1884).

    It is entirely competent for the legislature to dispense with more than one publication, and to provide that one publication shall be notice of all proceedings in the cause subsequent to the completion of the order, and the legislature of this State has so provided by this section. Jeffries v. Jeffries, 123 Va. 147 , 96 S.E. 197 , 1918 Va. LEXIS 12 (1918).

    Notice of certification of record not required. —

    If the original order of publication is found to have been in proper form, it dispenses with the necessity of giving nonresident beneficiaries notice of the application for a certification of the record. Such certification is a “proceeding in court” within the meaning of this section. Blalock v. Riddick, 186 Va. 284 , 42 S.E.2d 292, 1947 Va. LEXIS 151 (1947).

    Notice of taking of depositions. —

    Under this section, “the case may be tried or heard” as to the nonresident, but the section does not authorize the taking of the bill for confessed at any time nor the doing of any act before the completion of the order. Depositions taken before that time without other notice than that furnished by the order are not taken pursuant to the statute, and cannot be given in evidence against a nonresident who has not appeared in the case, nor assented thereto. Jeffries v. Jeffries, 123 Va. 147 , 96 S.E. 197 , 1918 Va. LEXIS 12 (1918).

    Decree based on petitions held valid. —

    Where nonresidents were proceeded against by order of publication, as required by this section, decrees made in the cause are not objectionable because they were based upon a petition filed in the cause of which defendants had no notice, where the petitions were entirely germane to the relief sought by the bill. Johnson v. Merrit, 125 Va. 162 , 99 S.E. 785 , 1919 Va. LEXIS 16 (1919).

    § 8.01-319. Publication of interim notice.

    1. In any case in which a nonresident party or party originally served by publication has been served as provided by law, and notice of further proceedings in the case is required but no method of service thereof is prescribed either by statute or by order or rule of court, such notice may be served by publication thereof once each week for two successive weeks in a newspaper published or circulated in the city or county in which the original proceedings are pending. If the original proceedings were instituted by order of publication, then the publication of such notice of additional or further proceedings shall be made in the same newspaper. A party, who appears pro se in an action, shall file with the clerk of the court in which the action is pending a written statement of his place of residence and mailing address, and shall inform the clerk in writing of any changes of residence and mailing address during the pendency of the action. The clerk and all parties to the action may rely on the last written statement filed as aforesaid. The court in which the action is pending may dispense with such notice for failure of the party to file the statement herein provided for or may require notice to be given in such manner as the court may determine.
    2. Notwithstanding any provision to the contrary in paragraph A hereof, depositions may be taken, testimony heard and orders and decrees entered without an order of publication, when the defendant has been legally served with or has accepted service of process to commence a suit for divorce or for annulling or affirming a marriage, and he or she or the plaintiff:
      1. Shall thereafter become a nonresident; or
      2. Shall remove from the county or city in which the suit is pending, if a resident thereof, or in which he or she resided at the time of the institution of the suit, or was served with process, without having filed with the clerk of the court where the suit is pending a written statement of his or her intended future place of residence, and a like statement of subsequent changes of residence; or
      3. When after such written statement has been filed with the clerk, notice shall have been served upon him or her at the last place of residence given in the written statement as provided by law; or
      4. Could not be found by the sheriff of the county or city for the service of the notice, and the party sending the service makes affidavit that he has used due diligence to find the adverse party without success. If such absent party has an attorney of record in such suit, notice shall be served on such attorney, as provided by § 8.01-314 .
    3. This section shall not apply to orders of publication in condemnation actions.

    History. Code 1950, § 8-76; 1950, p. 68; 1954, c. 333; 1960, c. 16; 1970, cc. 241, 279; 1977, c. 617; 1978, c. 676; 1979, c. 464; 1982, c. 384.

    REVISERS’ NOTE

    Section 8.01-319 substantially revises former § 8-76 and makes it plain that the publication relates only to interim notices after process has been legally served in the original action. Such interim notice has been principally utilized in divorce actions.

    Cross references.

    As to service by publication generally, see §§ 8.01-316 through 8.01-318 .

    As to personal service on nonresidents out of state, see § 8.01-320 .

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1969-1970, see 56 Va. L. Rev. 1500 (1970).

    For survey of Virginia domestic relations law for the year 1977-1978, see 64 Va. L. Rev. 1439 (1978).

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Process, §§ 30, 33.

    CASE NOTES

    This section compared with § 8.01-314 . —

    This section imposes different, not “less,” notice requirements for a pro se litigant than one represented by counsel. A pro se litigant is required to advise the clerk of court of his address and any change in it. If a litigant is not pro se, but is represented by counsel, papers may be served on “an attorney authorized to practice law in this Commonwealth” who has entered a general appearance for the litigant pursuant to § 8.01-314 . Both of these provisions serve to ensure that notice of the proceedings may be served on the litigants. Eddine v. Eddine, 12 Va. App. 760, 406 S.E.2d 914, 8 Va. Law Rep. 10, 1991 Va. App. LEXIS 167 (1991).

    Filing of a responsive pleading which contains the pro se party’s address is sufficient to satisfy the requirements of subsection A; once this pleading has been filed, if the defendant does not remove from the county, city or state in which the suit is pending, depositions can be taken, oral testimony heard, and orders and decrees entered without publication so long as notice has been served as provided by law. Soliman v. Soliman, 12 Va. App. 234, 402 S.E.2d 922, 7 Va. Law Rep. 2083, 1991 Va. App. LEXIS 58 (1991).

    Subsection B inapplicable where service by mail of notice was not proper service. —

    Since service by mail of the notice of the commissioner’s hearing was not proper service pursuant to § 20-99 , subsection B was not applicable to the case. Soliman v. Soliman, 12 Va. App. 234, 402 S.E.2d 922, 7 Va. Law Rep. 2083, 1991 Va. App. LEXIS 58 (1991).

    Failure to inform clerk of change of address. —

    If a litigant wishes to be informed of the proceedings, he or she must either keep the court advised of where service may be accomplished or be represented by counsel upon whom service may be had. In a domestic relations case, the husband’s failure to receive notice because he moved from his residence without notifying the clerk for his new address did not deprive him of due process of law. Eddine v. Eddine, 12 Va. App. 760, 406 S.E.2d 914, 8 Va. Law Rep. 10, 1991 Va. App. LEXIS 167 (1991).

    In a divorce case, where wife failed to provide a written statement of her address to the clerk of the trial court after her attorney withdrew from the case, and husband mailed the notice and a copy of the decree to the marital residence where wife was served with the bill of complaint, wife’s own failure to notify the court and husband of her proper mailing address resulted in her not receiving notice of entry of the final decree. Under these circumstances, the trial court did not err in entering the final decree in wife’s absence. Schlieper v. Schlieper, No. 2219-94-4 (Ct. of Appeals Oct. 17, 1995).

    Applies to corporations. —

    An unrepresented litigant who wishes to be informed of the proceedings must either keep the court advised of where service may be accomplished or retain counsel upon whom service may be had. We see no reason why this rule should not apply to corporations as well as natural persons. Fredericksburg Constr. Co. v. J.W. Wyne Excavating, Inc., 260 Va. 137 , 530 S.E.2d 148, 2000 Va. LEXIS 106 (2000).

    § 8.01-320. Personal service outside of Virginia.

    1. Subject to § 8.01-286.1 , service of a process on a nonresident person outside the Commonwealth may be made by: (i) any person authorized to serve process in the jurisdiction where the party to be served is located; or (ii) any person 18 years of age or older who is not a party or otherwise interested in the subject matter of the controversy and notwithstanding any other provision of law to the contrary, such person need not be authorized by the circuit court to serve process which commences divorce or annulment actions. When the court can exercise jurisdiction over the nonresident pursuant to § 8.01-328.1 , such service shall have the same effect as personal service on the nonresident within Virginia. Such service when no jurisdiction can be exercised pursuant to § 8.01-328.1 , or service in accordance with the provisions of subdivision 2 a of § 8.01-296 shall have the same effect, and no other, as an order of publication duly executed, or the publication of a copy of process under this chapter, as the case may be; however, depositions may be taken at any time after 21 days’ notice of the taking of the depositions has been personally served. The person so served shall be in default upon his failure to file a pleading in response to original process within 21 days after such service. If no responsive pleading is filed within the time allowed by law, the case may proceed without service of any additional pleadings, including the notice of the taking of depositions.
    2. Any personal service of process outside of this Commonwealth executed in such manner as is provided for in this section prior or subsequent to October 1, 1977, in a divorce or annulment action is hereby validated. Personal service of process outside this Commonwealth in a divorce or annulment action may be executed as provided in this section.

    History. Code 1950, § 8-74; 1954, c. 333; 1970, c. 552; 1977, c. 617; 1978, c. 90; 1981, c. 6; 1983, c. 402; 1984, c. 18; 1985, c. 177; 1986, c. 263; 1987, c. 594; 1997, c. 754; 2005, c. 866.

    Editor’s note.

    Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provided that the amendment to this section by Acts 1993, c. 929, cl. 1, would become effective June 1, 1998, “only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth.” The funding was not provided.

    The 2005 amendments.

    The 2005 amendment by c. 866, in subsection A, added “Subject to § 8.01-286.1 ,” and made minor stylistic changes.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1969-1970, see 56 Va. L. Rev. 1500 (1970).

    for the year 1971-1972, see 58 Va. L. Rev. 1309 (1972).

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Divorce and Alimony, § 53.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    The effect of personal service is to give the trial court no more and no less jurisdiction in the litigation than would have arisen from an order of publication duly posted and published. Mitchell v. Mitchell, 227 Va. 31 , 314 S.E.2d 45, 1984 Va. LEXIS 264 (1984).

    Effect of decrees and orders. —

    The meaning of this section is that the trial court can enter decrees and orders affecting a party to the same extent as if the party had been served by publication. Mitchell v. Mitchell, 227 Va. 31 , 314 S.E.2d 45, 1984 Va. LEXIS 264 (1984).

    Effect of subsection A on manner of service and jurisdiction. —

    While subsection A limits the effect of service of process on a nonresident outside of Virginia, this section does not pertain to the manner of service or eliminate jurisdiction once conferred. Frederick v. Koziol, 727 F. Supp. 1019, 1990 U.S. Dist. LEXIS 241 (E.D. Va. 1990).

    Limitations of subsection A do not apply to § 8.01-329 A. —

    As an order of publication confers only in rem jurisdiction, application of subsection A of this section to subsection A of § 8.01-329 would destroy the personal jurisdiction conferred by the long-arm statute in § 8.01-328.1 ; moreover, application of subsection A of this section to subsection A of § 8.01-329 would mean that service on the Secretary of the Commonwealth, who need only mail a copy to the person to be served at his last known address, would sustain personal jurisdiction, whereas personal service or substituted service designed to provide actual notice would support only in rem jurisdiction; therefore, the limitations of subsection A of this section do not apply to service of process pursuant to subsection A of § 8.01-329. Frederick v. Koziol, 727 F. Supp. 1019, 1990 U.S. Dist. LEXIS 241 (E.D. Va. 1990).

    Schedule for appearing and filing pleadings. —

    The party is entitled to the same time schedule for appearing or filing pleadings as such party could have claimed if such party had been served by publication. Mitchell v. Mitchell, 227 Va. 31 , 314 S.E.2d 45, 1984 Va. LEXIS 264 (1984).

    II.Decisions Under Prior Law.

    Editor’s note.

    Personal service is equivalent to order of publication. —

    The acknowledgment by nonresidents of legal service within the District of Columbia must be treated as equivalent to an order of publication duly posted and published, and does not give the court jurisdiction over the persons of the defendants so as to entitle it to render personal decrees against them. Smith & Winnsatt v. Chilton, 77 Va. 535 , 1883 Va. LEXIS 87 (1883).

    It is obvious that the personal service of the notice under this section makes such notice not only equivalent to an order of publication duly executed, but gives to the receiver of the notice the advantage and benefit of actual knowledge which he might not otherwise receive. Light v. City of Danville, 168 Va. 181 , 190 S.E. 276 , 1937 Va. LEXIS 217 (1937).

    Personal service outside the State has the same effect as an order of publication duly executed, and upon any trial or hearing under this section such judgment, decree or order shall be entered as may appear just. Cranford v. Hubbard, 208 Va. 689 , 160 S.E.2d 760, 1968 Va. LEXIS 168 (1968).

    § 8.01-321. Orders of publication in proceedings to enforce liens for taxes assessed upon real estate.

    Whenever an order of publication is entered in any proceeding brought by any county, city, or town to enforce a lien for taxes assessed upon real estate, such order need not be published more than once a week for two successive weeks. In the event the property is assessed in the local tax records for $50,000 or less, such order need not be published more than once. The party served by publication shall be required to appear and protect his interest by the date stated in the order of publication, which shall be not less than 24 days after entry of such order. The publication shall in other respects conform to § 8.01-317 , and when such publication so conforms, the provisions of § 8.01-318 shall apply.

    History. Code 1950, § 8-77; 1977, c. 617; 2018, c. 800.

    REVISERS’ NOTE

    Section 8.01-321 revises former § 8-77 to require that the order of publication in tax lien cases contain a specific date by which the party served thereby is required to appear and defend his interests. Cf. § 8.01-317 .

    The 2018 amendments.

    The 2018 amendment by c. 800 added the second sentence and made a stylistic change.

    § 8.01-322. Within what time case reheard on petition of party served by publication, and any injustice corrected.

    If a party against whom service by publication is had under this chapter did not appear before the date of judgment against him, then such party or his representative may petition to have the case reheard, may plead or answer, and may have any injustice in the proceeding corrected within the following time and not after:

    1. Within two years after the rendition of such judgment, decree or order; but
    2. If the party has been served with a copy of such judgment, decree, or order more than a year before the end of such two-year period, then within one year of such service.

      For the purpose of subdivision 2 of this section, service may be made in any manner provided in this chapter except by order of publication, but including personal or substituted service on the party to be served, and personal service out of the Commonwealth by any person of eighteen years or older and who is not a party or otherwise interested in the subject matter in controversy.

    History. Code 1950, § 8-78; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-322 makes no substantial change to former § 8-78. The enumeration of the alternative possibilities as to when a rehearing is available clarifies the impact of the present statutory scheme. The revision makes clear that personal service out of State is sufficient.

    Law Review.

    For 1985 survey of Virginia domestic relations law, see 19 U. Rich. L. Rev. 731 (1985).

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Costs, § 19.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Jurisdiction prerequisite to rehearing. —

    The only case that may be reheard is the one over which the trial court had jurisdiction. Hayes v. Hayes, 3 Va. App. 499, 351 S.E.2d 590, 3 Va. Law Rep. 1493, 1986 Va. App. LEXIS 388 (1986).

    Because the circuit court did not have in personam jurisdiction over a husband, subsection 91) did not bar the circuit court from reopening the case. Evans v. Evans, 2020 Va. App. LEXIS 208 (Va. Ct. App. July 21, 2020), aff'd, 300 Va. 134 , 860 S.E.2d 381, 2021 Va. LEXIS 84 (2021).

    A person proceeded against by order of publication is a party not served with process within the meaning of the Code of Virginia. Thus, where service by publication is the method by which personal jurisdiction is sought to be obtained in a divorce proceeding, a jurisdictional question inevitably arises. Hayes v. Hayes, 3 Va. App. 499, 351 S.E.2d 590, 3 Va. Law Rep. 1493, 1986 Va. App. LEXIS 388 (1986).

    Defendant who has been served not entitled to two-year period. —

    The General Assembly has provided that a nonresident defendant who has formal notice of a judgment shall have less time than the usual two-year period to petition for a rehearing. Implicit in this provision is concern that a defendant may not be aware of an adverse judgment or decree until he receives formal notice of it. If a defendant has received personal service at the commencement of the litigation, however, and fails to protect his interests, he accepts the risk of an unfavorable result. Therefore, such a defendant is beyond the intendment of the statute. Mitchell v. Mitchell, 227 Va. 31 , 314 S.E.2d 45, 1984 Va. LEXIS 264 (1984).

    Section is intended to protect a party who has no knowledge at all of litigation affecting him. Mitchell v. Mitchell, 227 Va. 31 , 314 S.E.2d 45, 1984 Va. LEXIS 264 (1984); Stephens v. Stephens, 229 Va. 610 , 331 S.E.2d 484, 1985 Va. LEXIS 239 (1985).

    Support proceeding not barred. —

    When the only service upon wife was by publication, and she neither appeared in person nor by counsel, and the court entered a decree dissolving the bonds of matrimony by reason of the separation of the parties for more than two consecutive years immediately preceding the institution of the suit for divorce by husband, this section did not bar wife’s statutory right to an award of support against husband when her request was made more than two years after the final decree of divorce was entered. Hayes v. Hayes, 3 Va. App. 499, 351 S.E.2d 590, 3 Va. Law Rep. 1493, 1986 Va. App. LEXIS 388 (1986).

    Jurisdiction over equitable distribution application. —

    The two-year period provided in this section did not vest jurisdiction in the circuit court to reconsider wife’s application for equitable distribution. Toomey v. Toomey, 251 Va. 168 , 465 S.E.2d 838, 1996 Va. LEXIS 3 (1996).

    II.Decisions Under Prior Law.

    Editor’s note.

    Section applies alike in equity and at law. —

    This section is a general statute applicable alike to suits in equity and actions at law. Robertson v. Stone, 199 Va. 41 , 97 S.E.2d 739, 1957 Va. LEXIS 159 (1957).

    Section is limited by, and must be construed together with, § 8.01-113 , which provides that the title of purchasers at judicial sales shall not be disturbed after 12 months from the date of the decree or order confirming the sale, “but there may be restitution of the proceeds to those entitled.” Robertson v. Stone, 199 Va. 41 , 97 S.E.2d 739, 1957 Va. LEXIS 159 (1957).

    This section is not applicable where the defendant was fully cognizant of the proceedings and made several special appearances prior to his general appearance, participated in the proceedings, testified as a witness, and was granted exhaustive hearings. Lawrence v. Lawrence, 212 Va. 44 , 181 S.E.2d 640, 1971 Va. LEXIS 291 (1971).

    A party who has been proceeded against by order of publication as required is a party “who was not served with process” within the meaning of this statute. Robertson v. Stone, 199 Va. 41 , 97 S.E.2d 739, 1957 Va. LEXIS 159 (1957).

    This section provides that any defendant who was “not served with process” and who did not appear in a suit may petition for a rehearing within the relevant times prescribed therein. A party proceeded against by an order of publication has not been “served with process” within the meaning of this section. The petitioners, who were so proceeded against and had not appeared in a suit devisavit vel non under § 64.1-88 [now see § 64.2-448 ], were therefore entitled under this section to petition the court for a rehearing. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803, 1968 Va. LEXIS 202 (1968).

    Effect of acknowledged service. —

    A defendant in a chancery suit who has acknowledged service of the summons to commence the suit is bound by the decrees and orders entered therein which relate to matters put in issue by the bill, but is not bound by a decree against him founded upon a petition filed in the cause, of which he had no notice, and may, under this section, file a petition in the cause, within the time prescribed therein to have the case made by such petition reheard. Keys Planing Mill Co. v. Kirkbridge, 114 Va. 58 , 75 S.E. 778 , 1912 Va. LEXIS 112 (1912).

    Misrepresentation, fraud, or deceit need not be alleged. —

    This section, which permits a direct attack, does not require a petitioner to allege or prove misrepresentation, fraud, or deceit as a condition to his right to a rehearing. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803, 1968 Va. LEXIS 202 (1968).

    No statute authorizes a court to grant an indefinite time within which to move to reinstate a suit in which a final decree has been rendered, and which has been stricken from the docket, without notice. Hence a decree for divorce a vinculo which gives leave to either party to move the court to reinstate the suit without notice is erroneous. Shelton v. Shelton, 125 Va. 381 , 99 S.E. 557 , 1919 Va. LEXIS 30 (1919).

    Thus, after the prescribed time has expired a bill of review comes too late. Johnson v. Merrit, 125 Va. 162 , 99 S.E. 785 , 1919 Va. LEXIS 16 (1919).

    And leave to file a petition for rehearing does not stop the running of the statute fixing the time within which the petition must actually be filed. Woodson v. Leyburn, 83 Va. 843 , 3 S.E. 873 , 1887 Va. LEXIS 130 (1887).

    But void decree may be attacked after prescribed time. —

    Failure to file a petition within two years from date of decree is not fatal to that part of a divorce decree which was void, and it could be attacked at any time and in any court in which it was brought into question. Watson v. Mose, 165 Va. 661 , 183 S.E. 428 , 1936 Va. LEXIS 251 (1936).

    Rehearing in partition suit. —

    One who files a petition under this section for rehearing in a partition suit is entitled to have corrected the injustice created by sale of the property at less than its true value; however, the amount due petitioner is determined by taking the value of the land at the time of the sale rather than at the time of the rehearing. Robertson v. Stone, 199 Va. 41 , 97 S.E.2d 739, 1957 Va. LEXIS 159 (1957).

    Right to rehearing in divorce suit. —

    A defendant in a divorce suit who was proceeded against as a nonresident by order of publication, as provided in this section, was not served with process within the meaning of that term as used in this section, and as she did not appear and was not served with a copy of the decree, she was entitled to a rehearing. Sims v. Sims, 140 Va. 435 , 126 S.E. 486 , 1924 Va. LEXIS 184 (1924).

    Unjust compromise agreement. —

    This section permits a court upon a rehearing to correct “any injustice in the proceedings.” An injustice was done to the petitioners and to other heirs and distributees who were not parties to a compromise agreement in a suit under § 64.1-88 [now see § 64.2-448 ]. By the compromise agreement the parties sought to settle a suit to impeach the decedent’s will, which suit, if successful, would have resulted in benefits for all the decedent’s heirs and distributees. But the compromise agreement provided that certain heirs and distributees, parties to the agreement, should receive shares of the decedent’s estate and that the balance of her estate should be distributed in accordance with the will. The agreement was unjust because it benefited the heirs and distributees who were parties to the agreement, but provided no benefit for the other heirs and distributees. Thomas v. Best, 209 Va. 103 , 161 S.E.2d 803, 1968 Va. LEXIS 202 (1968).

    Absent defendant may file petition pending appeal. —

    In a suit in which there is an absent defendant, there is a decree against the home defendant, from which he appeals. Pending the appeal, the absent defendant may file his petition in the court below to be permitted to appear and file his answer in the cause, and may have the decree reheard and set aside, if it is erroneous as to him. If upon such rehearing the decree, or so much of it as is the subject of appeal, is wholly set aside, the appeal will generally be dismissed. But if an appeal is taken from the decree on the rehearing, before the dismissal of the first appeal, the appellate court may refuse to dismiss it. James River & Kanawha Co. v. Littlejohn, 59 Va. (18 Gratt.) 53, 1867 Va. LEXIS 34 (1867).

    CIRCUIT COURT OPINIONS

    No due process violation found. —

    While Title 25.1 does not allow a condemnee to petition for a rehearing after 21 days, § 8.01-428 is in fact broader in its protections than § 8.01-322 in that the latter prescribes no time limit for which a court may relieve a party from any judgment or proceeding in which process was not provided; therefore, between the two, a condemnee served by publication is provided with ample opportunities for notice and an opportunity to be heard. The Due Process Clause is not violated by such procedures. Norfolk Redevelopment & Hous. Auth. v. Stevenson, 63 Va. Cir. 567, 2004 Va. Cir. LEXIS 91 (Norfolk Jan. 27, 2004).

    No equal protection violation found. —

    Title 25.1 does not violate the Equal Protection Clause as condemnees are not a suspect class, and the legislature’s decision to give fewer, but constitutionally adequate, rights to seek to reopen a condemnation judgment, than those rights given to owners whose property is sold upon private parties’ petitions under § 8.01-322 , is based upon the rational basis of giving faster finality to protect government actions taken on public projects. Norfolk Redevelopment & Hous. Auth. v. Stevenson, 63 Va. Cir. 567, 2004 Va. Cir. LEXIS 91 (Norfolk Jan. 27, 2004).

    § 8.01-323. In what counties city newspapers deemed published for purpose of legal advertisements.

    Any newspaper published in a city adjoining or wholly or partly within the geographical limits of any county shall be deemed to be published in such county or counties as well as in such city, for the purpose of legal advertisements.

    History. Code 1950, § 8-80; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 13B M.J. Newspapers, § 3.

    § 8.01-324. Newspapers that may be used for legal notices and publications.

    1. As used in this section and throughout the Code, the terms “newspaper of record” and “newspaper of general circulation” are interchangeable and identical in meaning.
    2. Whenever any ordinance, resolution, notice, or advertisement is required by law, regulation, or judicial order to be published in a newspaper, newspaper of record, or newspaper of general circulation, such newspaper, newspaper of record, or newspaper of general circulation, in addition to any qualifications otherwise required by law, shall:
      1. Have a bona fide list of paying subscribers;
      2. Have been published and circulated in printed form at least once a week for at least 50 of the preceding 52 weeks;
      3. Provide general news coverage of the area in which the notice is required to be published;
      4. Be printed in the English language; and
      5. Have a periodicals mailing permit issued by the United States Postal Service (USPS). If the newspaper has such a mailing permit, it must publish the USPS Statement of Ownership (Form 3526) in such newspaper at least once per calendar year and maintain a copy of such form that is available for public inspection during regular business hours.
    3. However, a newspaper that does not have a periodicals mailing permit issued by the USPS pursuant to subdivision B 5 may petition the circuit court for the jurisdiction in which ordinances, resolutions, notices, or advertisements are required to be published to be certified as a newspaper of record for that jurisdiction. Prior to filing the petition, the newspaper shall publish a notice of intention to file a petition pursuant to this subsection in another newspaper of record in the jurisdiction in which the petition will be filed. If no such newspaper exists, such notice of intent may be published in a newspaper in a neighboring jurisdiction. The court shall grant the authority for a period of one year upon finding that the newspaper (i) meets the requirements of subdivisions B 2, 3, and 4; (ii) employs a local news staff, reports local current events and governmental meetings, has an editorial page, accepts letters to the editor, and is, in general, a news forum for the jurisdiction in which authority is sought; and (iii) has an audit of printed circulation for a time period ending no more than 24 months prior to the filing of such petition certified by an independent auditing firm or a business recognized in the newspaper industry as a circulation auditor. Such audit shall provide a breakdown of such newspaper’s circulation by zip code or jurisdiction. The authority shall be continued for successive one-year periods upon the filing of a copy of such newspaper’s most recent audit of circulation, completed within the prior 24 months, and an affidavit certifying that the newspaper continues to meet the requirements of this subsection.
    4. If a county with a population of less than 15,000 had regularly advertised its ordinances, resolutions, and notices in a newspaper published in the county that had a general circulation in the county, a bona fide list of paying subscribers, and a periodicals permit, and the newspaper continued to be published in the county and continued to have a general circulation in the county but failed to maintain its bona fide list of paying subscribers and its periodicals permit, any advertisement of ordinances, resolutions, or notices in the newspaper by the county shall be deemed to have been in compliance with this section.
    5. If a locality determines that no newspaper meets the requirements of subsection B or C with regard to its jurisdiction, such locality may petition the circuit court for its jurisdiction for authority to have such ordinances, resolutions, notices, or advertisements published in another printed medium. Such petition shall not be filed without a majority vote of approval by such locality’s local governing body. The court shall grant such authority for good cause shown. Such authority shall be granted for one year and may be continued for successive one-year periods for good cause shown.
    6. Any newspaper authorized by this section to publish ordinances, resolutions, notices, or advertisements shall (i) print such ordinances, resolutions, notices, or advertisements together under an identifying heading and such heading shall be in boldface letters no smaller than 24-point type and (ii) maintain at least three years’ worth of print archives of such newspaper containing any such ordinance, resolution, notice, or advertisement and make such archives available to the public for inspection upon request.
    7. In all cases in which an ordinance, resolution, notice, or advertisement is required to be published in a newspaper of general circulation, the newspaper shall (i) post the complete notice on the newspaper’s website, if a website is published by such newspaper, where it shall be posted contemporaneously with the notice’s first print publication and shall remain on the website for at least as long as the notice appears in such newspaper; (ii) include on its website homepage a link to its public notice section; and (iii) post the complete notice on a searchable, statewide repository website, established and maintained as a joint venture of the majority of Virginia newspapers as a repository for such notices, where it shall remain on such repository website for at least as long as it appears in the newspaper. Any notice published on a website pursuant to this section shall be accessible to the public at no charge.
    8. An error in a notice placed on a newspaper website or statewide website, or temporary website outages or service interruptions prohibiting the posting or display of such notice, shall be considered harmless error, and proper legal notice requirements shall be considered met if the notice published in the newspaper otherwise complies with the requirements for publication.

    History. Code 1950, § 8-81; 1977, c. 617; 1983, c. 297; 1989, c. 611; 1992, cc. 392, 537, 719; 2007, cc. 183, 603; 2019, c. 635.

    The 2007 amendments.

    The 2007 amendments by cc. 183 and 603 are identical, and substituted “the requirements of subdivisions A 2, A 3, and A 4” for “the other requirements of this section” at the end of clause (i) of the third sentence of subsection B.

    The 2019 amendments.

    The 2019 amendment by c. 635 rewrote the section.

    Law Review.

    For annual survey article, “Civil Practice and Procedure,” see 46 U. Rich. L. Rev. 9 (2011).

    Michie’s Jurisprudence.

    For related discussion, see 13B M.J. Newspapers, § 3.

    CASE NOTES

    Jurisdiction. —

    Judgment was reversed and the order was vacated because subsection A of § 8.01-324 lacked any grant of subject matter jurisdiction to the circuit courts. As such, the circuit court had no subject matter jurisdiction to enter the order in question here and the order was, therefore, null and void. Virginian-Pilot Media Cos., LLC v. Dow Jones & Co., 280 Va. 464 , 698 S.E.2d 900, 2010 Va. LEXIS 235 (2010), limited, Watson v. Commonwealth, 297 Va. 347 , 827 S.E.2d 782, 2019 Va. LEXIS 50 (2019).

    CIRCUIT COURT OPINIONS

    List of subscribers. —

    Newspaper that served the metropolitan area of Washington, D.C., was denied authority to publish legal notices for the County of Fairfax, Virginia, because the publishing company had not provided the court with a bona fide list of paying subscribers as required by § 8.01-324 . Under an intermediate scrutiny analysis, the requirement, as applied, did not impinge upon the company’s First Amendment rights and assisted the Commonwealth in a legitimate state interest in assuring that such notices are seen by a broad audience. Wash. Newspaper Publ'g Co., 72 Va. Cir. 186, 2006 Va. Cir. LEXIS 201 (Fairfax County Oct. 24, 2006).

    Second class mailing certificate. —

    Publications with a second-class mailing certificate are not required to obtain court approval before publishing legal notices. In re Landmark Communications, Inc. v. Commonwealth, 264 Va. 568 , 570 S.E.2d 836, 2002 Va. LEXIS 159 (2002).

    Requirements. —

    Where a newspaper had a bona fide list of paying subscribers, that was, more than a de minimis number, had been published and circulated at least once a week for 24 consecutive weeks without interruption for dissemination of news of a general or legal character, had a general circulation in the area in which the notice was required to be published, given the diversity of the news published and of the interests of its subscribers and the breadth of the area in which the newspaper was circulated and distributed, was printed in the English language, and had a second-class mailing permit issued by the United States Postal Service, it met the requirements of § 8.01-324 . Little Piney Run Estates, L.L.C. v. Loudoun County Bd. of Supervisors, 74 Va. Cir. 400, 2007 Va. Cir. LEXIS 294 (Loudoun County Nov. 30, 2007).

    Circuit court lacked subject matter jurisdiction to grant a corporation authority to publish legal notices within a city in its newspaper under subsection A of § 8.01-324 because the newspaper lacked the breadth of circulation in the city enjoyed by another newspaper, but, depending upon the facts of a case, due process requirements for notice by publication could be met by publishing in either or neither of the two newspapers; publication of notices in newspapers meeting the requirements of § 8.01-324 may not survive a due process scrutiny. In re Dow Jones & Co., 79 Va. Cir. 514, 2009 Va. Cir. LEXIS 246 (Norfolk Nov. 17, 2009).

    Jurisdiction to consider whether requirements met. —

    Circuit court lacks subject matter jurisdiction to determine whether a petitioning newspaper meets the requirements of subsection A of § 8.01-324 because such jurisdiction is not granted by the Virginia Constitution or Code and would be redundant and contrary to the intent of the General Assembly; neither the Virginia Constitution nor any statute granted the circuit court jurisdiction to decide fitness under subsection A of § 8.01-324 . In re Dow Jones & Co., 79 Va. Cir. 514, 2009 Va. Cir. LEXIS 246 (Norfolk Nov. 17, 2009).

    Declaratory judgment. —

    Circuit court could not issue a declaratory judgment to satisfy the request of a corporation’s petition for a grant of authority to publish within a city legal notices in its newspaper because the circuit court’s ruling on the petition would be quite literally advisory, for a ruling under § 8.01-324 would not supplant the independent decision-making of a government entity giving notice to choose the newspaper in which to publish that notice; neither subsection A nor subsection B is meant to prescribe which newspapers should be used for publication because they merely provide which newspapers could be used for publication, and any court ruling that merely opines whether a newspaper fits the requirements of § 8.01-324 , absent a case or controversy, would constitute an advisory opinion. In re Dow Jones & Co., 79 Va. Cir. 514, 2009 Va. Cir. LEXIS 246 (Norfolk Nov. 17, 2009).

    General Assembly designed subsection A of § 8.01-324 to establish fitness without circuit court intervention through that subsection’s requirements of a second-class mailing permit and a bona fide list of paying subscribers, requirements absent from subsection B of § 8.01-324 because the grant of authority to the circuit courts in subsection B applies only when a second-class mailing permit and a “bona fide list” are not present; subsection A as written circumvents the need for subjective examination of each newspaper candidate. In re Dow Jones & Co., 79 Va. Cir. 514, 2009 Va. Cir. LEXIS 246 (Norfolk Nov. 17, 2009).

    Lack of subject matter jurisdiction. —

    Circuit court’s review of a petition for authority to publish legal notices is redundant for newspapers already satisfying the terms of subsection A of § 8.01-324 because it is generally the duty of the government entity giving notice to choose a newspaper that meets the requirements of subsection A; it would be redundant for the General Assembly to give circuit courts subject matter jurisdiction to grant a newspaper authority to publish legal notices under subsection A, since a determination of fitness already must be performed by the issuing entity. In re Dow Jones & Co., 79 Va. Cir. 514, 2009 Va. Cir. LEXIS 246 (Norfolk Nov. 17, 2009).

    Because a corporation requested a circuit court find it fit under subsection A of § 8.01-324 through a petition that identified no controversy, there was no case currently before the circuit court, and thus, § 17.1-513 did not grant the circuit court subject matter jurisdiction over the petition; while the scope of § 17.1-513 is broad, its provisions extend only to “cases” because the language of the statute makes clear that controversy is implicit to “cases.” In re Dow Jones & Co., 79 Va. Cir. 514, 2009 Va. Cir. LEXIS 246 (Norfolk Nov. 17, 2009).

    § 8.01-325. Return by person serving process.

    1. Unless otherwise directed by the court, the person serving process shall make return thereof to the clerk’s office within seventy-two hours of service, except when such return would be due on a Saturday, Sunday, or legal holiday. In such case, the return is due on the next day following such Saturday, Sunday, or legal holiday. The process shall state thereon the date and manner of service and the name of the party served.
    2. Proof of service shall be in the following manner:
      1. If service by sheriff, the form of the return of such sheriff as provided by the Rules of the Supreme Court; or
      2. If service by any other person qualified under § 8.01-293 , whether service made in or out of the Commonwealth, his affidavit of such qualifications; the date and manner of service and the name of the party served; and stamped, typed, or printed on the return of process, an annotation that the service was by a private server, and the name, address, and telephone number of the server; or
      3. In case of service by publication, the affidavit of the publisher or his agent giving the dates of publication and an accompanying copy of the published order.
    3. The clerk’s office shall accept a photocopy, facsimile, or other copy of the original proof of service as if it were an original, provided that the proponent provides a statement that any such copy is a true copy of the original.

    History. Code 1950, §§ 8-52, 8-329; 1977, c. 617; 1996, c. 538; 2020, c. 158.

    REVISERS’ NOTE

    Section 8.01-325 consolidates in a single section former §§ 8-52 and 8-329 regarding the method of return of service. Though the language of subsections 1 and 2 is more concise than that of former § 8-52, no change in substance is intended. The reference in subsection 1 to the Rules of Court relates to Rules 2:5 and 3:4. Subsection 3 in requiring an affidavit by the publisher or his agent, alters former § 8-329 which, though designating certain publication officials, provides that affidavit of any other person is also sufficient to evidence service by publication.

    See also additional service requirements under §§ 8.01-296 and 8.01-427.1 regarding default judgments and decrees.

    Editor’s note.

    Section 8.01-427.1 , referred to in the second paragraph of the Revisers’ Note, was repealed by Acts 1978, c. 426.

    The 2020 amendments.

    The 2020 amendment by c. 158 added subsection C and designated the existing provisions as subsections A and B.

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Process, § 40.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Invalid service of process. —

    Where nothing in the record established that process server was qualified to serve process under Virginia’s procedural requirements, service of process was invalid, and the court did not acquire personal jurisdiction over defendant. Harrel v. Preston, 15 Va. App. 202, 421 S.E.2d 676, 9 Va. Law Rep. 388, 1992 Va. App. LEXIS 247 (1992).

    Statements in service return of protective order not testimonial. —

    Trial court did not err in admitting into evidence a deputy sheriff’s statements in the return portion of a preliminary protective order because defendant had no right to confront the deputy who made them when the statements were not testimonial; the statements were primarily created to comply with statutory provisions that governed the service of the protective order and, therefore, enable the entity to administer its affairs, a non-prosecutorial purpose. Logan v. Commonwealth, 71 Va. App. 568, 838 S.E.2d 548, 2020 Va. App. LEXIS 53 , aff'd, 72 Va. App. 309, 845 S.E.2d 228, 2020 Va. App. LEXIS 214 (2020).

    Statements contained in service returns on protective orders are not testimonial; the primary purpose of the return of service is to show that it has been served on the subject of that protective order and is, therefore, in effect. Logan v. Commonwealth, 71 Va. App. 568, 838 S.E.2d 548, 2020 Va. App. LEXIS 53 , aff'd, 72 Va. App. 309, 845 S.E.2d 228, 2020 Va. App. LEXIS 214 (2020).

    II.Decisions Under Prior Law.

    Editor’s note.

    What constitutes the return. —

    A return on a writ or process is the short official statement of the officer indorsed thereon of what he has done in obedience to the mandate of the writ, or why he has done nothing. The signature of the officer thereto is no part of the return, but is merely intended to authenticate it. Slingluff v. Collins, 109 Va. 717 , 64 S.E. 1055 , 1909 Va. LEXIS 87 (1909).

    Effect of return “executed in person”. —

    A return “executed in person,” signed by the deputy sheriff with his own name and that of his principal shows that the summons was actually served on the defendants. Barksdale v. Neal, 57 Va. (16 Gratt.) 314, 1862 Va. LEXIS 3 (1862).

    Return must show time of service. —

    Upon a return “not found, and copy left, etc.,” without showing when the copy was left, it did not appear that the summons was duly served. Wynn v. Wyatt, 38 Va. (11 Leigh) 584, 1841 Va. LEXIS 11 (1841).

    Courts will look to dates on return when necessary. —

    Process to commence a suit is part of the record for the purposes of amendment, and the court will look to the return thereon, when necessary, not only to show the date of the return, but also the date of the execution of the writ. House v. Universal Crusher Corp., 115 Va. 558 , 79 S.E. 1049 , 1913 Va. LEXIS 70 (1913).

    Presumption as to time of return. —

    In the absence of a date, or other evidence showing when the return of an officer on a writ was made, it is presumed to have been made at a time when he had the right to make it, and in due time, as the prima facie presumption is that the officer has done his duty. Rowe v. Hardy, 97 Va. 674 , 34 S.E. 625 , 1899 Va. LEXIS 84 (1899).

    The court may allow the sheriff to amend his return so as to show a proper service. Stotz v. Collins & Co., 83 Va. 423 , 2 S.E. 737 , 1887 Va. LEXIS 87 (1887).

    When oath required. —

    The simple statement of an officer as to the manner of service is sufficient, while the statement of another person must be upon oath. This difference under early statutes did not exist, but the statement was required to be on oath, whether made by an officer or another person. Barksdale v. Neal, 57 Va. (16 Gratt.) 314, 1862 Va. LEXIS 3 (1862).

    Service by any person is valid if return is verified by affidavit. —

    This section authorizes service by any person if the return be verified by affidavit. So a plea alleging that the person making the service was the paid agent of the plaintiff, employed to compromise with divers claimants of the land sued for and to aid the plaintiff in recovering the land, etc., is insufficient. King v. Davis, 137 F. 198, 1903 U.S. App. LEXIS 5453 (C.C.D. Va. 1903).

    CIRCUIT COURT OPINIONS

    Construction with other law. —

    Virginia Sup. Ct. R. 2:4 and 2:5 [see now Rules 3:5 and 3:6] necessarily imply that a return of service filed outside the 72-hour time limit, set forth in both § 8.01-325 and Va. Sup. Ct. R. 2:4 [now Rule 3:5], will not invalidate either the service or a decree entered based on the in personam jurisdiction resulting from that service; such a return constitutes prime facie evidence that the party was served in accordance with the return. Small v. Small, 58 Va. Cir. 114, 2001 Va. Cir. LEXIS 361 (Fairfax County Dec. 21, 2001).

    Failure to file return. —

    Where an insurer was properly served, but the court clerk failed to file the return within 72 hours, as required by § 8.01-325 , and the insurer thereafter failed to timely respond to proper notice as required by Va. Sup. Ct. Rule 1:1, the insurer did not direct the court to any law that would either require or grant discretion to modify the default judgment; in any event, § 8.01-288 cured any possible defect in the process return. Remley v. Griffin, 2004 Va. Cir. LEXIS 125 (Portsmouth June 28, 2004), aff'd, 270 Va. 209 , 618 S.E.2d 316, 2005 Va. LEXIS 75 (2005).

    § 8.01-326. Return as proof of service.

    No return shall be conclusive proof as to service of process. The return of a sheriff shall be prima facie evidence of the facts therein stated, and the return of a qualified individual under subdivision 2 of § 8.01-293 shall be evidence of the facts stated therein.

    History. 1977, c. 627.

    REVISERS’ NOTE

    Section 8.01-326 alters former case law by abolishing the anachronistic verity rule and providing that a return by any qualified person shall constitute evidence of service and that a sheriff’s return shall constitute prima facie evidence of service. The section overrules the line of cases represented by Caskie v. Durham, 152 Va. 345 , 147 S.E. 218 (1929).

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

    CASE NOTES

    Service established. —

    In a case in which two protective orders were issued by the trial court finding that the mother committed an act of family abuse and ordered her not to commit any future acts of family abuse against her children, the circuit court did not err in denying the mother’s motion to dismiss because introduction of the returns of service into evidence satisfied the father’s burden of production; and the trial court made a finding that the mother was served, implicitly determining that the returns of service were more credible than the mother’s bare claim that she did not receive service. Walker v. Pierce, 2020 Va. App. LEXIS 297 (Va. Ct. App. Dec. 8, 2020).

    Substituted service. —

    Because the circuit court’s determinations were supported by the record, and substituted service of a show cause order was not precluded, the circuit court properly dismissed a husband’s motion to quash service of process; the wife’s evidence included a return of service indicating that the amended show cause order and sworn petition were served on the husband’s mother-in-law at the address that the husband provided in the divorce decree as his residential address of record. Koons v. Crane, 72 Va. App. 720, 853 S.E.2d 524, 2021 Va. App. LEXIS 13 (2021).

    CIRCUIT COURT OPINIONS

    Construction with other law. —

    Va. Sup. Ct. R. 2:4 and 2:5 [see now Rules 3:5 and 3:6] necessarily imply that a return of service filed outside the 72-hour time limit, set forth in both § 8.01-325 and Va. Sup. Ct. R. 2:4 [now Rule 3:5], will not invalidate either the service or a decree entered based on the in personam jurisdiction resulting from that service; such a return constitutes prime facie evidence that the party was served in accordance with the return. Small v. Small, 58 Va. Cir. 114, 2001 Va. Cir. LEXIS 361 (Fairfax County Dec. 21, 2001).

    Evidentiary hearing required. —

    Because a return of service contained factual statements that arguably contradicted one another, an evidentiary hearing was needed to decide whether process actually reached a defendant within the prescribed time; the court had to determine whether § 8.01-326 could cure any defect in the manner in which process was served. Corbin v. Frazier, 2006 Va. Cir. LEXIS 18 (Madison County Jan. 30, 2006).

    Service established. —

    Notice of a zoning violation by a town zoning administrator was properly served on a property owner pursuant to subsection A of § 15.2-2311 and § 8.01-326 , as the notice of violation bore a sheriffs stamp that showed that a deputy sheriff had posted the notice on a set date; the owner was unable to rebut the presumption of service that was established by the sheriffs stamp that showed the return of service of the notice. McLane v. Martinez, 2010 Va. Cir. LEXIS 207 (Fairfax County Dec. 27, 2010).

    § 8.01-326.1. Service of process or notice on statutory agent; copy to be sent to defendant and certificate filed with court; effective date of service.

    Any statutory agent who has been served with process or notice shall forthwith mail a copy of such process or notice to the person or persons to be served at the last known post office address of such person and file a certificate of compliance with the papers in the action. Service of process or notice on a statutory agent shall be effective as of the date the certificate of compliance is filed with the clerk of the court in which the action or suit is pending.

    History. 1990, c. 741.

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Agency, § 92.

    CIRCUIT COURT OPINIONS

    Last known address. —

    Plaintiff is not required to find the single best address, but only the one last known; therefore, in a medical malpractice case, an argument that the requirement to send service to the “last known post office address” meant that service had to be sent to a home address was rejected. Branch v. Augusta Health Care, Inc., 92 Va. Cir. 126, 2015 Va. Cir. LEXIS 206 (Augusta County Aug. 21, 2015).

    § 8.01-327. Acceptance of service of process.

    Service of process may be accepted by the person for whom it is intended by signing the proof of service and indicating the jurisdiction and state in which it was accepted. However, service of process in divorce or annulment actions may be accepted only as provided in § 20-99.1:1 .

    History. 1977, c. 617; 1987, c. 594; 1988, cc. 583, 642.

    REVISERS’ NOTE

    Section 8.01-327 states how service of process may be accepted. The proviso recognizes the specific requirement of § 20-99 .1:1 in suits for divorce or annulment (cf. § 20-99 ).

    Cross references.

    As to service of an administrative support order on an out-of-state obligor if the obligor and obligee maintained a matrimonial domicile within the Commonwealth, see § 63.2-1903 G.

    As to service of notice of administrative support order, see § 63.2-1916. As to service of notice of review of administrative support orders, see § 63.2-1921. As to service on employer of an order for income withholding incident to an administrative support order, see § 63.2-1923. As to service of hearing officer’s decision on appeal of order to withhold in connection with support order, see § 63.2-1929.

    Article 5. Privilege From Civil Arrest.

    § 8.01-327.1. Definition of “arrest under civil process.”

    The terms “arrest under civil process” and “civil arrest” shall be synonymous and shall be the apprehending and detaining of a person pursuant to specific provisions of this title to achieve the following:

    1. A full and proper answer or response to interrogatories under § 8.01-506 ;
    2. His obedience to the orders, judgments, and decrees of any court.

    History. 1977, c. 617; 1984, c. 93.

    REVISERS’ NOTE

    Section 8.01-327.1 defines, for the first time, “arrest under civil process.”

    § 8.01-327.2. Who are privileged from arrest under civil process.

    In addition to the exemptions made by §§ 30-4, 30-6, 30-7, 30-8, 19.2-280 , and 44-97, the following persons shall not be arrested, apprehended, or detained under any civil process during the times respectively herein set forth, but shall not otherwise be privileged from service of civil process by this section:

    1. The President of the United States, and the Governor of the Commonwealth at all times during their terms of office;
    2. The Lieutenant Governor of the Commonwealth during attendance at sessions of the General Assembly and while going to and from such sessions;
    3. Members of either house of the Congress of the United States during the session of Congress and for fifteen days next before the beginning and after the ending of any session, and during any time that they are serving on any committee or performing any other service under an order or request of either house of Congress;
    4. A judge, grand juror or witness, required by lawful authority to attend any court or place, during such attendance and while going to and from such court or place;
    5. Members of the National Guard while going to, attending at, or returning from, any muster or court-martial;
    6. Ministers of the gospel while engaged in performing religious services in a place where a congregation is assembled and while going to and returning from such place; and
    7. Voters going to, attending at, or returning from an election. Such privilege shall only be on the days of such attendance.

    History. 1977, c. 617; 2015, c. 221.

    REVISERS’ NOTE

    The common law is not repudiated by this legislation. Section 8.01-327.2 clarifies former § 8-4.1 by stating that the privilege from arrest under this section does not extend to service of civil process.

    The 2015 amendments.

    The 2015 amendment by c. 221 substituted “National Guard” for “national guard or naval militia” in subdivision 5.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arrest, § 2.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Judges, grand jurors, and witnesses. —

    This section does not repudiate the common-law rule, but it does create an exception to the privilege by permitting service of civil process upon a judge, grand juror or witness. Lester v. Bennett, 1 Va. App. 47, 333 S.E.2d 366, 1985 Va. App. LEXIS 58 (1985).

    Attorneys and parties. —

    Although the common-law privilege was extended to attorneys and parties, this section by its terms does not apply to either attorneys or parties. Therefore, immunity from arrest and service of process is available to a party only if permitted under the common law. Lester v. Bennett, 1 Va. App. 47, 333 S.E.2d 366, 1985 Va. App. LEXIS 58 (1985).

    Person appearing for custody proceeding not immune from process in support action. —

    The relationship which exists between a suit to enforce support payments and a proceeding to change custody of a minor child is such that to grant immunity to the party who is in Virginia seeking to obtain custody of the minor child from arrest and service of process in connection with an action brought by his former wife to collect delinquent child support payments would obstruct the due administration of justice. Lester v. Bennett, 1 Va. App. 47, 333 S.E.2d 366, 1985 Va. App. LEXIS 58 (1985).

    II.Decisions Under Prior Law.

    Editor’s note.

    Judges, attorneys, witnesses, and suitors are exempt from arrest in civil suits during their attendance at court. Commonwealth v. Ronald, 8 Va. (4 Call) 97, 1786 Va. LEXIS 7 (1786).

    No civil jurisdiction can be acquired nor civil process served where the criminal process is used as a mere pretense to bring the defendant within the state. Wheeler v. Flintoff, 156 Va. 923 , 159 S.E. 112 , 1931 Va. LEXIS 246 (1931).

    Immunity from civil process should clearly extend to such property of the nonresident witness as is shown to be reasonably necessary to his case while in attendance in court in Virginia. Davis v. Hackney, 196 Va. 651 , 85 S.E.2d 245, 1955 Va. LEXIS 135 (1955).

    Chapter 9. Personal Jurisdiction in Certain Actions.

    § 8.01-328. Person defined.

    As used in this chapter, “person” includes an individual, his executor, administrator, or other personal representative, or a corporation, partnership, association or any other legal or commercial entity, whether or not a citizen or domiciliary of this Commonwealth and whether or not organized under the laws of this Commonwealth.

    History. Code 1950, § 8-81.1; 1964, c. 331; 1977, c. 617.

    Cross references.

    For procedure in civil proceeding where it is alleged that an anonymous individual has engaged in Internet communications that are tortious, see § 8.01-407.1 .

    As to administrative establishment of paternity, see § 63.2-1913.

    Law Review.

    For comment, “Personal Jurisdiction over Nonresidents: Some Statutory Developments,” see 7 Wm. & Mary L. Rev. 146 (1966).

    For note, “Obtaining Jurisdiction Over Corporations in Virginia,” see 12 U. Rich. L. Rev. 369 (1978).

    For a note, “Casting the Net: Another Confusing Analysis of Personal Jurisdiction and Internet Contacts in Telco Communication, Inc. v. An Apple A Day ,” see 32 U. Rich. L. Rev. 505 (1998).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Admiralty, § 61.

    CASE NOTES

    The assertion of in personam jurisdiction by the trial court over the nonresident defendant for a cause of action arising from the consummation of the contract in Virginia between the plaintiff and the nonresident corporation was proper under the provision of the Virginia long-arm statute where the company aggressively reached into Virginia and recruited a Virginia resident for employment elsewhere. Nan Ya Plastics Corp. United States v. DeSantis, 237 Va. 255 , 377 S.E.2d 388, 5 Va. Law Rep. 1783, 1989 Va. LEXIS 32, cert. denied, 492 U.S. 921, 109 S. Ct. 3248, 106 L. Ed. 2d 594, 1989 U.S. LEXIS 3436 (1989).

    In adopting §§ 8.01-328 to 8.01-330 , the legislature evinced a policy of extending the jurisdiction of its courts to the maximum extent permitted by the due process clause of the United States Constitution. Caldwell v. Seaboard Sys. R.R., 238 Va. 148 , 380 S.E.2d 910, 5 Va. Law Rep. 2859, 1989 Va. LEXIS 100 (1989), cert. denied, 493 U.S. 1095, 110 S. Ct. 1169, 107 L. Ed. 2d 1071, 1990 U.S. LEXIS 915 (1990).

    § 8.01-328.1. When personal jurisdiction over person may be exercised.

    1. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s:
      1. Transacting any business in this Commonwealth;
      2. Contracting to supply services or things in this Commonwealth;
      3. Causing tortious injury by an act or omission in this Commonwealth;
      4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth;
      5. Causing injury in this Commonwealth to any person by breach of warranty expressly or impliedly made in the sale of goods outside this Commonwealth when he might reasonably have expected such person to use, consume, or be affected by the goods in this Commonwealth, provided that he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth;
      6. Having an interest in, using, or possessing real property in this Commonwealth;
      7. Contracting to insure any person, property, or risk located within this Commonwealth at the time of contracting;
      8. Having (i) executed an agreement in this Commonwealth which obligates the person to pay spousal support or child support to a domiciliary of this Commonwealth, or to a person who has satisfied the residency requirements in suits for annulments or divorce for members of the armed forces or civilian employees of the United States, including foreign service officers, pursuant to § 20-97 , provided that proof of service of process on a nonresident party is made by a law-enforcement officer or other person authorized to serve process in the jurisdiction where the nonresident party is located; (ii) been ordered to pay spousal support or child support pursuant to an order entered by any court of competent jurisdiction in this Commonwealth having in personam jurisdiction over such person; or (iii) shown by personal conduct in this Commonwealth, as alleged by affidavit, that the person conceived or fathered a child in this Commonwealth;
      9. Having maintained within this Commonwealth a matrimonial domicile at the time of separation of the parties upon which grounds for divorce or separate maintenance is based, or at the time a cause of action arose for divorce or separate maintenance or at the time of commencement of such suit, if the other party to the matrimonial relationship resides herein; or
      10. Having incurred a liability for taxes, fines, penalties, interest, or other charges to any political subdivision of the Commonwealth.Jurisdiction in subdivision 9 is valid only upon proof of service of process pursuant to § 8.01-296 on the nonresident party by a person authorized under the provisions of § 8.01-320 . Jurisdiction under clause (iii) of subdivision 8 is valid only upon proof of personal service on a nonresident pursuant to § 8.01-320 .
    2. Using a computer or computer network located in the Commonwealth shall constitute an act in the Commonwealth. For purposes of this subsection, “use” and “computer network” shall have the same meanings as those contained in § 18.2-152.2 .
    3. When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him; however, nothing contained in this chapter shall limit, restrict, or otherwise affect the jurisdiction of any court of this Commonwealth over foreign corporations that are subject to service of process pursuant to the provisions of any other statute.

    History. Code 1950, § 8-81.2; 1964, c. 331; 1977, c. 617; 1978, c. 132; 1981, c. 6; 1982, c. 313; 1983, c. 428; 1984, c. 609; 1986, c. 275; 1987, c. 594; 1988, cc. 866, 878; 1992, c. 571; 1999, cc. 886, 904, 905; 2001, c. 221; 2007, c. 533; 2009, c. 582; 2017, c. 480.

    Cross references.

    As to transactions not constituting doing business under the Virginia Business Trust Act, see § 13.1-1249 .

    The 1999 amendments.

    The 1999 amendments by cc. 886, 904 and 905 are identical, and added subsection B and redesignated former subsection B as subsection C.

    The 2001 amendments.

    The 2001 amendment by c. 221, in subsection A, deleted “or” at the end of subdivision 8, added “or” at the end of subdivision 9, added subdivision 10, and deleted “of this subsection” following “subdivision 9” in the last paragraph of subsection A.

    The 2007 amendments.

    The 2007 amendment by c. 533 substituted “liability for taxes, fines, penalties, interest, or other charges” for “tangible personal property tax liability” in subdivision A 10.

    The 2009 amendments.

    The 2009 amendment by c. 582 inserted “or foreign service officers of the United States” in clause (i) of subdivision A 8.

    The 2017 amendments.

    The 2017 amendment by c. 480, in subdivision A 8, substituted “civilian employees” for “foreign service officers” and inserted “including foreign service officers”; and made stylistic changes.

    Law Review.

    For note, “Obtaining Jurisdiction Over Corporations in Virginia,” see 12 U. Rich. L. Rev. 369 (1978).

    For survey of Virginia practice and pleading for the year 1977-1978, see 64 Va. L. Rev. 1501 (1978).

    For note on Shaffer v. Heitner and the establishment by the Supreme Court of a uniform approach to state court jurisdiction, see 35 Wash. & Lee L. Rev. 131 (1978).

    For article, “Products Liability and the Virginia Statute of Limitations — A Call for the Legislative Rescue Squad,” see 16 U. Rich. L. Rev. 323 (1982).

    For article on recent developments in Virginia domestic relations law, see 68 Va. L. Rev. 507 (1982).

    For article on personal jurisdiction over domestic and alien defendants, see 69 Va. L. Rev. 85 (1983).

    For note on minimum contacts and contracts, see 40 Wash. & Lee L. Rev. 1639 (1983).

    For note on due process aspects of Virginia’s domestic relations long-arm legislation, see 24 Wm. & Mary L. Rev. 229 (1983).

    For article on the single contract as minimum contacts, see 28 Wm. & Mary L. Rev. 89 (1986).

    For 1987 survey of Virginia civil procedure and practice, see 21 U. Rich. L. Rev. 667 (1987).

    As to spousal support jurisdiction, see 22 U. Rich. L. Rev. 565 (1988).

    For note, “Invalidation of Residency Requirements for Admission to the Bar: Opportunities for General Reform,” see 23 U. Rich. L. Rev. 231 (1989).

    For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

    For a note, “Casting the Net: Another Confusing Analysis of Personal Jurisdiction and Internet Contacts in Telco Communication, Inc. v. An Apple A Day, ” see 32 U. Rich. L. Rev. 505 (1998).

    For an article, “Domestic Relations,” see 31 U. Rich. L. Rev. 1069 (1997).

    For a review of civil practice and procedure in Virginia for year 1999, see 33 U. Rich. L. Rev. 801 (1999).

    For 2006 survey article, “Family and Juvenile Law,” see 41 U. Rich. L. Rev. 151 (2006).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For 2007 annual survey article, “Electronic Data: A Commentary on the Law in Virginia in 2007,” see 42 U. Rich. L. Rev. 355 (2007).

    For annual survey article, “Family Law,” see 46 U. Rich. L. Rev. 145 (2011).

    For article, “Civil Practice and Procedure,” see 54 U. Rich. L. Rev. 7 (2019).

    Michie’s Jurisprudence.

    For related discussion, see 3C M.J. Commercial Law, § 36.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Purpose of Virginia’s long-arm statute is to assert jurisdiction over nonresidents who engage in some purposeful activity in this State to the extent permissible under the due process clause. Miller & Rhoads v. West, 442 F. Supp. 341, 1977 U.S. Dist. LEXIS 12617 (E.D. Va. 1977); GE Co. v. Rose Int'l, Inc., 475 F. Supp. 602, 1979 U.S. Dist. LEXIS 10236 (W.D. Va. 1979); August v. HBA Life Ins. Co., 17 Bankr. 628, 1982 Bankr. LEXIS 4900 (Bankr. E.D. Va. 1982); United Coal Co. v. Land Use Corp., 575 F. Supp. 1148, 1983 U.S. Dist. LEXIS 11032 (W.D. Va. 1983); Bassett Furn. Indus., Inc. v. Sexton, 596 F. Supp. 454, 1984 U.S. Dist. LEXIS 22136 (W.D. Va. 1984).

    The purpose of the Virginia long-arm statute is to assert jurisdiction to the extent permissible under the due process clause of the federal Constitution. Brown v. ABC, 704 F.2d 1296, 1983 U.S. App. LEXIS 28923 (4th Cir. 1983).

    Of the ten provisions in the long-arm statute, only three specifically refer to a nonresident; the court of appeals presumes that the General Assembly intentionally used the word nonresident, and, therefore, these three provisions, subsections (A)(8)(i), (8)(iii), and (9), apply solely to nonresidents. Evans v. Evans, 2020 Va. App. LEXIS 208 (Va. Ct. App. July 21, 2020), aff'd, 300 Va. 134 , 860 S.E.2d 381, 2021 Va. LEXIS 84 (2021).

    “Person” defined. —

    The definition of the term “person” in this section is all inclusive, sufficient to bring within the ambit of the statute every natural or fictitious entity, including trustees, capable of performing the acts, such as transacting business, which are made the basis for the exercise of personal jurisdiction over a nonresident. Combs v. Dickenson-Wise Medical Group, 233 Va. 177 , 355 S.E.2d 553, 3 Va. Law Rep. 2243, 1987 Va. LEXIS 182 (1987).

    The plain meaning of the phrase “arising from” is “caused by”; thus, it is evident that Virginia’s General Assembly used the phrase “arising from” to require that there be a causal link between the acts relied on for personal jurisdiction and the cause of action asserted. Significantly, courts agree that this causation element requires more than simple “but-for” causation; it requires something akin to legal or proximate causation. Chedid v. Boardwalk Regency Corp., 756 F. Supp. 941, 1991 U.S. Dist. LEXIS 2372 (E.D. Va. 1991).

    The plain meaning of the phrase “arising from” is “caused by.” Verosol B.V. v. Hunter Douglas, Inc., 806 F. Supp. 582, 1992 U.S. Dist. LEXIS 20980 (E.D. Va. 1992).

    Personal jurisdiction categorized as specific or general. —

    Specific personal jurisdiction is exercised where the matter before the court arises out of or relates to the nonresident defendant’s contacts with the forum whereas general personal jurisdiction is exercised where the matter is not one arising out of or related to the nonresident defendant’s contacts with the forum; the former may be based on less significant contacts, while the latter requires more substantial contacts. Heathmount A.E. Corp. v. Technodome.com, 106 F. Supp. 2d 860, 2000 U.S. Dist. LEXIS 10591 (E.D. Va. 2000).

    Section construed to extend in personam jurisdiction to constitutional limit. —

    This section, as in the case of other state statutes as well, has been construed to extend in personam jurisdiction to the outmost perimeters of due process. Peanut Corp. of Am. v. Hollywood Brands, Inc., 696 F.2d 311, 1982 U.S. App. LEXIS 23282 (4th Cir. 1982).

    This section has often been recognized as permitting jurisdiction to the extent due process permits. Sowards v. Switch Energy Co., 744 F. Supp. 1399, 1990 U.S. Dist. LEXIS 12364 (W.D. Va. 1990).

    Jurisdiction has been construed to extend as broadly as that permitted by due process. Chisholm v. UHP Projects, Inc., 1 F. Supp. 2d 581, 1998 U.S. Dist. LEXIS 5109 (E.D. Va. 1998).

    Jurisdiction exists if due process met. —

    Where the assertion of personal jurisdiction can withstand due process scrutiny, then such assertion must also be valid under this section. GE Co. v. Rose Int'l, Inc., 475 F. Supp. 602, 1979 U.S. Dist. LEXIS 10236 (W.D. Va. 1979).

    Trial court did not err in finding that it had personal jurisdiction over the husband, such that it could enter rulings in his and the wife’s divorce proceeding, as the wife’s bill of complaint sufficiently alleged the husband’s conduct and contact with Virginia, despite the fact that he was residing in the West Indies, to show that personal jurisdiction existed over him pursuant to Virginia’s long-arm statute; accordingly, defendant’s due process rights were not violated when the court exercised personal jurisdiction over him in the divorce action. Cabaniss v. Cabaniss, 46 Va. App. 595, 620 S.E.2d 559, 2005 Va. App. LEXIS 408 (2005).

    Reach of statute and due process inquiries coincide. —

    While determining whether personal jurisdiction exists typically requires a two-step process, in which the court first assesses whether the particular facts and circumstances of a case fall within the language of the long-arm statute and then considers whether the due process clause would permit such jurisdiction to be asserted, because this section extends personal jurisdiction to the fullest extent permitted by the due process clause the court’s inquiry is collapsed into the single question of whether asserting jurisdiction violates the due process clause. Coastal Video Communications Corp. v. Staywell Corp., 59 F. Supp. 2d 562, 1999 U.S. Dist. LEXIS 11827 (E.D. Va. 1999).

    Extent of personal jurisdiction. —

    The Virginia long-arm statute extends personal jurisdiction to the full extent permitted by due process. Reynolds Metals Co. v. FMALI, Inc., 862 F. Supp. 1496, 1994 U.S. Dist. LEXIS 13668 (E.D. Va. 1994).

    Jurisdiction of courts over out-of-state defendants. —

    Except where the General Assembly has placed explicit affirmative limitations on the extent of long-arm jurisdiction in Virginia, as it has in subdivisions A 4 and A 5 of this section, the courts of Virginia, including the United States District Courts sitting in diversity cases, may take personal jurisdiction over out-of-state defendants under each of the subdivisions of this section to the extent allowed by the due process clause of the Fourteenth Amendment. Darden v. Heck's, Inc., 459 F. Supp. 727, 1978 U.S. Dist. LEXIS 14933 (W.D. Va. 1978).

    Placement of website on internet inadequate to justify jurisdiction. —

    Personal jurisdiction could not be exercised over a defendant where the only conduct alleged by the plaintiff was the defendant’s placement of a website on the internet with knowledge of the possibility that the site might be accessed in Virginia; the plaintiff had made no showing of any purposeful availment by the defendant of Virginia, as distinct from any other state, or even any purposeful activity directed at or related to the plaintiff. Rannoch, Inc. v. Rannoch Corp., 52 F. Supp. 2d 681, 1999 U.S. Dist. LEXIS 10063 (E.D. Va. 1999).

    Activity must be purposefully targeted. —

    Although subdivision A 4 of this section is an assertion of specific jurisdiction and thus does not require the “systematic and continuous contacts” needed for the constitutional exercise of general jurisdiction, less than “continuous and systematic” contacts will satisfy the due process clause only when the activity out of which the claim arises is purposefully targeted at the forum state; some element of purposeful direction or availment is constitutionally necessary. Rannoch, Inc. v. Rannoch Corp., 52 F. Supp. 2d 681, 1999 U.S. Dist. LEXIS 10063 (E.D. Va. 1999).

    Statute provides additional methods of service on nonresident not exclusive methods. —

    The long-arm statute provides additional methods of service on a nonresident, not the exclusive methods of service, and did not supplant the previously authorized method of personal service provided by law. Ragouzis v. Ragouzis, 10 Va. App. 312, 391 S.E.2d 607, 6 Va. Law Rep. 2351, 1990 Va. App. LEXIS 88 (1990).

    Long-arm statute intended to facilitate service on nonresident defendants. —

    The provisions of the long arm statute were clearly intended to facilitate service on nonresident defendants, not to make it more difficult to serve them. Ragouzis v. Ragouzis, 10 Va. App. 312, 391 S.E.2d 607, 6 Va. Law Rep. 2351, 1990 Va. App. LEXIS 88 (1990).

    Language of each service of process requirement makes clear that application of the entire provision is conditional on the service of process requirement being met; by the express language of each provision, jurisdiction only exists if the service of process requirement is met. Evans v. Evans, 2020 Va. App. LEXIS 208 (Va. Ct. App. July 21, 2020), aff'd, 300 Va. 134 , 860 S.E.2d 381, 2021 Va. LEXIS 84 (2021).

    When jurisdiction is sought pursuant to a long-arm statute, a dual analysis is normally required: first, it must be determined whether the statutory language, as a matter of construction, purports to assert personal jurisdiction over a defendant; and second, assuming that the answer to the first question is affirmative, it must be determined whether the statutory assertion of personal jurisdiction is consonant with the due process clause of U.S. Const., amend. 14. Peanut Corp. of Am. v. Hollywood Brands, Inc., 696 F.2d 311, 1982 U.S. App. LEXIS 23282 (4th Cir. 1982).

    Plaintiff must satisfy two burdens to justify the courts’ exercise of jurisdiction over defendant. First it must prove that defendant somehow meets one of the statutory requirements of this section. Second it must prove that the court’s exercise of jurisdiction will not overstep the limits of due process. Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393, 1987 U.S. Dist. LEXIS 5120 (W.D. Va. 1987).

    Personal jurisdiction analysis is a two step process. First, each alleged cause of action must be measured for a fit against each alleged part of the Long Arm Statute, this section. If no fit is found, the inquiry is at an end: There is no personal jurisdiction. On the other hand, if any of the Long Arm provisions fit, a further inquiry must be made before jurisdiction can be sustained. This further inquiry is to ascertain whether the Long Arm’s reach in that particular instance exceeds its constitutional grasp. Processing Research, Inc. v. Larson, 686 F. Supp. 119, 1988 U.S. Dist. LEXIS 4279 (E.D. Va. 1988).

    When jurisdiction is sought pursuant to a long-arm statute, a dual analysis is normally required. —

    It is well-settled that the resolution of a challenge to in personam jurisdiction involves a two-step inquiry. First, a court must determine whether the particular facts and circumstances of the case fall within the reach of this section and second, a court must decide whether the long-arm statute’s reach in the case exceeds its constitutional grasp, namely, whether the exercise of personal jurisdiction in the matter is consistent with traditional notions of fair play and substantial justice under the due process clause. Alitalia-Linee Aeree Italiane S.p.A. v. casinoalitalia.com, 128 F. Supp. 2d 340, 2001 U.S. Dist. LEXIS 534 (E.D. Va. 2001).

    If long arm statute applies, then due process determination needed. —

    If the long-arm statute applies, the court must then determine whether asserting personal jurisdiction over defendant thereunder comports with the due process clause of the Fourteenth Amendment. Verosol B.V. v. Hunter Douglas, Inc., 806 F. Supp. 582, 1992 U.S. Dist. LEXIS 20980 (E.D. Va. 1992).

    Burden of proof. —

    Because the plaintiff must prove personal jurisdiction, it bears the burden of proving that its version of the parties’ relationship is accurate and that the defendant’s version is not. Initiatives, Inc. v. Korea Trading Corp., 991 F. Supp. 476, 1997 U.S. Dist. LEXIS 20669 (E.D. Va. 1997).

    A plaintiff must disprove the presence of personal jurisdiction in order to proceed in rem, and bears the burden to demonstrate some indicia of due diligence in trying to establish personal jurisdiction over an individual who has been identified as a potential defendant but is not subject to jurisdiction. Alitalia-Linee Aeree Italiane S.p.A. v. casinoalitalia.com, 128 F. Supp. 2d 340, 2001 U.S. Dist. LEXIS 534 (E.D. Va. 2001).

    Foreseeability. —

    The foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being hauled into court there. Gordonsville Indus., Inc. v. American Artos Corp., 549 F. Supp. 200, 1982 U.S. Dist. LEXIS 16335 (W.D. Va. 1982).

    As a corollary to the “purposeful availment” requirement, courts consider whether the putative nonresident defendant could reasonably have anticipated being haled into court in the forum state. These requirements protect a defendant from being subjected to personal jurisdiction as a result of fortuitous, attenuated or random contacts, or as a result of the unilateral activity of another party. Heathmount A.E. Corp. v. Technodome.com, 106 F. Supp. 2d 860, 2000 U.S. Dist. LEXIS 10591 (E.D. Va. 2000).

    Default may constitute admission of jurisdictional facts. —

    Where a defendant is in default under the Virginia rules of procedure, the trial court properly can find the factual allegations of the motion for judgment accurate as those allegations relate to personal jurisdiction under this section. Glumina Bank v. D.C. Diamond Corp., 259 Va. 312 , 527 S.E.2d 775, 2000 Va. LEXIS 55 (2000).

    When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against a defendant. Unidyne Corp. v. Aerolineas Argentinas, 590 F. Supp. 391, 1984 U.S. Dist. LEXIS 18842 (E.D. Va. 1984).

    The long arm of this section does not extend to a contract formed and performed outside Virginia. Promotions, Ltd. v. Brooklyn Bridge Centennial Comm., 763 F.2d 173, 1985 U.S. App. LEXIS 20702 (4th Cir. 1985).

    Long arm not applicable to child support disputes. —

    Subdivision A 1 of this section did not govern the enforcement of plaintiff’s child support contract or other domestic relations issues such as child support disputes, which were instead governed by subdivisions A 8 and A 9. Thus, plaintiff’s case was properly dismissed by the district court for lack of personal jurisdiction. Riggins v. O'Brien, 101 Fed. Appx. 395, 2004 U.S. App. LEXIS 11698 (4th Cir. 2004).

    Subsection C of § 8.01-328.1 simply does not, by its plain language, reach those who may have conceived a child elsewhere and later acknowledged paternity in the Commonwealth as subsection C expressly provides that when jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him; if a mother has filed a petition seeking to establish parentage, her cause of action arises from the father’s participation in the act creating the pregnancy, rather than his subsequent act of his acknowledgment of paternity in Virginia. While his acknowledgment may be evidence of his parentage, it is only his act in siring the child, and not his later acknowledgment of the child, that gives rise to the cause of action in the Commonwealth’s courts. Bergaust v. Flaherty, 57 Va. App. 423, 703 S.E.2d 248, 2011 Va. App. LEXIS 10 (2011).

    Fathering a child. —

    Trial court lacked personal jurisdiction under subdivision A 8 of § 8.01-328.1 to consider a child support petition even though a father acknowledged his paternity in Virginia, as “conceived” and “fathered” were gender specific terms that applied only to the parties responsible for actually conceiving a child in Virginia, and the child for which child support was sought was fathered in France. Bergaust v. Flaherty, 57 Va. App. 423, 703 S.E.2d 248, 2011 Va. App. LEXIS 10 (2011).

    In order for a court to obtain in personam jurisdiction and the respective ability to enforce personal monetary obligations, the nonresident must be personally served by a law-enforcement officer or other official authorized to serve process pursuant to subdivision A 8 (i) of this section. Morris v. Morris, 4 Va. App. 539, 359 S.E.2d 104, 4 Va. Law Rep. 235, 1987 Va. App. LEXIS 211 (1987).

    Where the wife proceeded by an order of publication but did not personally serve the husband with process, the trial court did not obtain personal jurisdiction over the husband and could not direct him to pay spousal support. Morris v. Morris, 4 Va. App. 539, 359 S.E.2d 104, 4 Va. Law Rep. 235, 1987 Va. App. LEXIS 211 (1987).

    Personal jurisdiction absent in divorce decree. —

    Where record proved that agreement that was incorporated in the decree was signed by the parties in Maryland two years prior to the filing of the divorce, and the agreement referred to Virginia only as the place where the parties were married, the recitations in the divorce pleadings and the final divorce decree were plainly insufficient to enable a Virginia court to obtain personal jurisdiction over the husband, a nonresident, under any provision of this section. Price v. Price, 17 Va. App. 105, 435 S.E.2d 652, 10 Va. Law Rep. 324, 1993 Va. App. LEXIS 444 (1993).

    Lack of personal jurisdiction in divorce decree not automatic bar to effective dissolution. —

    Although the circuit court did not obtain personal jurisdiction over the husband in the divorce action, the allegations in the divorce pleadings sufficed to provide the trial court with in rem jurisdiction to dissolve the marriage. Price v. Price, 17 Va. App. 105, 435 S.E.2d 652, 10 Va. Law Rep. 324, 1993 Va. App. LEXIS 444 (1993).

    Lack of personal jurisdiction in divorce decree bar to subsequent enforcement of support provisions. —

    Although the circuit court entered a valid divorce decree it lacked personal jurisdiction over the husband when the divorce decree was entered in 1985 and it had no power to enter an enforceable support order. Consequently, the judge’s order ruling the husband in contempt for violating the support provisions of the 1985 divorce decree was reversed and the rule to show cause was dismissed. Price v. Price, 17 Va. App. 105, 435 S.E.2d 652, 10 Va. Law Rep. 324, 1993 Va. App. LEXIS 444 (1993).

    Because the circuit court lacked in personam jurisdiction at the time it entered the divorce decree, the order of child support was a complete nullity and was void from the time of entry; consequently, the circuit court could not, and did not, retroactively modify child support. Evans v. Evans, 2020 Va. App. LEXIS 208 (Va. Ct. App. July 21, 2020), aff'd, 300 Va. 134 , 860 S.E.2d 381, 2021 Va. LEXIS 84 (2021).

    Circuit court properly found that it did not have the authority to order a husband to pay child support at the time the divorce decree was entered because it lacked in personam jurisdiction over the husband; each of the service of process provisions in the long-arm statute made specific reference to “nonresidents,” which would preclude their application to residents such as the husband. Evans v. Evans, 2020 Va. App. LEXIS 208 (Va. Ct. App. July 21, 2020), aff'd, 300 Va. 134 , 860 S.E.2d 381, 2021 Va. LEXIS 84 (2021).

    The record proved that husband was aware of the proceeding against him, a fact made clear by both the duly authenticated certificates of notice and husband’s entrance by special appearance to contest the trial court’s jurisdiction. Husband did not appeal the court’s subsequent finding that it did have personal jurisdiction, and consequently that finding became final 21 days after entry of the order. Such actions are sufficient to constitute waiver. Burd v. Burd, No. 1156-96-4 (Ct. of Appeals Feb. 11, 1997).

    Child support modification proceeding. —

    Because the trial court erred in finding that: (1) it had continuing subject matter jurisdiction to modify a previously entered child support order, even though its continuing jurisdiction was not exclusive, because § 20-88.39 did not expressly divest it of such jurisdiction, and (2) it retained such authority until another court of competent jurisdiction took or assumed jurisdiction, it erred in granting a mother’s motion to modify said child support order. Moreover, any authority to exercise personal jurisdiction over the father did nothing to remedy the lack of subject matter jurisdiction. Nordstrom v. Nordstrom, 50 Va. App. 257, 649 S.E.2d 200, 2007 Va. App. LEXIS 314 (2007).

    Limitations of § 8.01-320 A do not apply to § 8.01-329 A. —

    As an order of publication confers only in rem jurisdiction, application of subsection A of § 8.01-320 to subsection A of § 8.01-329 would destroy the personal jurisdiction conferred by the long-arm statute in this section; moreover, application of subsection A of § 8.01-320 to subsection A of § 8.01-329 would mean that service on the Secretary of the Commonwealth, who need only mail a copy to the person to be served at his last known address, would sustain personal jurisdiction, whereas personal service or substituted service designed to provide actual notice would support only in rem jurisdiction; therefore, the limitations of subsection A of § 8.01-320 do not apply to service of process pursuant to subsection A of § 8.01-329. Frederick v. Koziol, 727 F. Supp. 1019, 1990 U.S. Dist. LEXIS 241 (E.D. Va. 1990).

    Service of process was proper under § 8.01-329 A. —

    Where personal jurisdiction was authorized by the Virginia long-arm statute, this section, and defendant was served in the manner provided for in Chapter 8 of the Virginia Code, namely under subdivision 2 a of § 8.01-296 , service of process was proper under subsection A of § 8.01-329 of the Virginia long-arm statute, and defendant’s motion to dismiss for lack of jurisdiction over the person was denied. Frederick v. Koziol, 727 F. Supp. 1019, 1990 U.S. Dist. LEXIS 241 (E.D. Va. 1990).

    Nonparty subpoena duces tecum. —

    In a case in which a website appealed a judgment of the court of appeals affirming an order of the circuit court holding the website in civil contempt for failing to comply with a nonparty subpoena duces tecum served upon it by a carpet cleaning business, the Supreme Court concluded that the circuit court was not empowered to enforce the nonparty subpoena against the website, which was headquartered in California. Subpoena power was not conferred upon the circuit court by the website’s act in registering to conduct business in Virginia or designating a registered agent for service of process in the Commonwealth. Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 289 Va. 426 , 770 S.E.2d 440, 2015 Va. LEXIS 51 (2015).

    Choice-of-law provisions not determinative. —

    While choice-of-law provisions in contracts are relevant in determining whether a defendant purposely availed itself of a particular state’s law, they cannot alone establish jurisdiction. Initiatives, Inc. v. Korea Trading Corp., 991 F. Supp. 476, 1997 U.S. Dist. LEXIS 20669 (E.D. Va. 1997).

    Foreign executor or administrator. —

    The enactment of the Virginia long-arm statute has removed the old Virginia common-law rule that an executor or administrator is not subject to suit in a state other than that of his appointment, unless he brings into or collects from the state assets of the decedent’s estate. Crosson v. Conlee, 745 F.2d 896, 1984 U.S. App. LEXIS 17957 (4th Cir. 1984), cert. denied, 470 U.S. 1054, 105 S. Ct. 1759, 84 L. Ed. 2d 822, 1985 U.S. LEXIS 1427 (1985).

    Jurisdiction in federal question cases. —

    In federal question cases in which there is no provision for nationwide service of process, a federal court in Virginia is required to apply an in personam jurisdiction test very similar to that used in diversity cases which, under the long-arm statute, extends jurisdiction over nonresidents who engage in some purposeful activity in Virginia to the extent permissible under the due process clause of the constitution. Weinstein v. Todd Marine Enters., 115 F. Supp. 2d 668, 2000 U.S. Dist. LEXIS 14628 (E.D. Va. 2000).

    Illustrative cases. —

    Aside from the allegations in the amended complaint, the plaintiff had not indicated the factual basis for the court to exercise jurisdiction over the defendants who appeared to reside in Mexico. The allegations did not discharge plaintiff’s burden on a motion for summary judgment where there had been ample opportunity for discovery. Dunham v. Hotelera Canco S.A. de C.V., 933 F. Supp. 543, 1996 U.S. Dist. LEXIS 10552 (E.D. Va.), dismissed, 933 F. Supp. 543, 1996 U.S. Dist. LEXIS 10551 (E.D. Va. 1996).

    Where both husband and wife had lived in Virginia but currently neither party lived there, and where Virginia circuit court ruled that it was bound by the 1992 South Carolina order, including that court’s finding that it had jurisdiction over husband and the subject matter, the trial court erred by declining to exercise its continued jurisdiction to enforce its original support order. While husband argued that the divorce decree was ex parte, the record demonstrated conclusively that the Virginia circuit court had personal jurisdiction over husband at the time the divorce decree was entered. Commonwealth, Va. Dep't of Social Servs. ex rel. Kenitzer v. Richter, 23 Va. App. 186, 475 S.E.2d 817, 1996 Va. App. LEXIS 599 (1996).

    Where none of foreign defendant’s officers, directors, or employees visited Virginia in connection with the contract, and the correspondence, meeting agenda, and the contract itself did not contain any indications that foreign defendant expected plaintiff to conduct business on its behalf in Virginia, the defendant had not purposefully availed itself of the benefits and protection of Virginia law and there was no specific personal jurisdiction over defendant. Initiatives, Inc. v. Korea Trading Corp., 991 F. Supp. 476, 1997 U.S. Dist. LEXIS 20669 (E.D. Va. 1997).

    A plaintiff seeking a judgment declaring that its publication did not infringe the copyright on a publication produced by the defendant failed to establish that the court could exercise personal jurisdiction over the defendant where there was no evidence that the defendant’s publication, although advertised in Virginia by catalogue and over the internet, had ever been sold in the state and, where, even if there was such evidence, the fact that the defendant’s publication had been sold in Virginia would be irrelevant, since, if the plaintiff’s activities constituted infringement, this would be true regardless of where the defendant’s publication was sold; absent evidence that the plaintiff’s action arose from the defendant’s sale of the copyrighted material or the defendant’s other exploitation of the copyright in Virginia, the court did not have specific, personal jurisdiction over the defendant. Coastal Video Communications Corp. v. Staywell Corp., 59 F. Supp. 2d 562, 1999 U.S. Dist. LEXIS 11827 (E.D. Va. 1999).

    Because Virginia’s long arm statute extends personal jurisdiction to the limits allowed by due process, a federal court’s statutory inquiry merges with its constitutional inquiry. Jensen v. Klayman, 115 Fed. Appx. 634, 2004 U.S. App. LEXIS 24255 (4th Cir. 2004).

    Court did not have personal jurisdiction over defendant, where none of the contacts listed in the pleadings and affidavits alleged a fiduciary or similar relationship between the parties (thus, there could be no specific personal jurisdiction for accounting), and plaintiff’s claim for constructive trust could not be rooted in defendant’s former ownership of the property at issue. Williams v. Reynolds, No. 4:06CV00020, 2006 U.S. Dist. LEXIS 76467 (W.D. Va. Oct. 20, 2006).

    Court did not have personal jurisdiction over defendant, where defendant did not live in Virginia, only visited family in Virginia once a year, owned no property in Virginia, and only owned shares in the Virginia corporation at issue from December 2002 until October 2004, after any of the alleged torts had already occurred. Williams v. Reynolds, No. 4:06CV00020, 2006 U.S. Dist. LEXIS 76467 (W.D. Va. Oct. 20, 2006).

    Trial court did not err in holding that there was no actual matrimonial domicile upon which in personam jurisdiction could be based where one spouse resided in a home in Belgium, while the other spouse resided in Virginia, because there was ample evidence that the spouse intended to remain in Belgium and did not intend to reside in Virginia. Moreover, the trial court did not err in rejecting in personam jurisdiction over the spouse based on a theory of constructive matrimonial domicile. Harrison v. Harrison, 58 Va. App. 90, 706 S.E.2d 905, 2011 Va. App. LEXIS 115 (2011).

    Trial court properly dismissed a husband’s petition for separate maintenance and transitional support because it lacked personal jurisdiction over the wife where, due to the fact that the wife lived in Maryland and the husband was incarcerated in Virginia, the parties never established a matrimonial domicile in Virginia. Washington v. Lucas, 2014 Va. App. LEXIS 423 (Va. Ct. App. Dec. 30, 2014).

    Husband was properly served with a show cause rule because he was a nonresident, and thus, the Virginia long-arm statute applied, and substituted service of the show cause rule was valid; the long-arm statute did not require personal service on the nonresident, and substituted service in Washington was sufficient to give the Virginia court personal jurisdiction over the husband and satisfy the requirement that a show cause rule be “served on the person.” Koons v. Crane, 72 Va. App. 720, 853 S.E.2d 524, 2021 Va. App. LEXIS 13 (2021).

    Insufficient jurisdictional facts in allegation. —

    Limited liability company could not have proceeded on a theory of jurisdiction under the Virginia long-arm statute because the allegation did not set forth any jurisdictional facts to make a prima facie showing in support of jurisdiction, but instead set forth only a bare legal conclusion that the corporation was subject to jurisdiction under the statute. Vianix Del., LLC v. Nuance Communs., Inc., 637 F. Supp. 2d 356, 2009 U.S. Dist. LEXIS 58852 (E.D. Va. 2009), dismissed, No. 2:09cv141, 2009 U.S. Dist. LEXIS 145050 (E.D. Va. Dec. 1, 2009).

    Availability of fiduciary shield doctrine. —

    Agent could not have availed himself to the “fiduciary shield” doctrine because the fiduciary shield doctrine was not available where the forum state’s long-arm statute was coextensive with the full reach of due process, and Virginia’s long arm statute, was coextensive with due process. Melnor, Inc. v. SKR Res., Inc., No. 5:04CV00113, 2005 U.S. Dist. LEXIS 28874 (W.D. Va. Nov. 14, 2005).

    B.Transacting Business.
    1.In General.

    Real limitation is due process clause. —

    The real limitation on the exercise of personal jurisdiction under the “transacting business” provision of this section is the Due Process Clause of the Fourteenth Amendment. Industrial Carbon Corp. v. Equity Auto & Equip. Leasing Corp., 737 F. Supp. 925, 1990 U.S. Dist. LEXIS 6240 (W.D. Va. 1990), dismissed without op., 922 F.2d 835, 1991 U.S. App. LEXIS 7389 (4th Cir. 1991).

    The “manifest purpose” of subdivision A 1 is to assert jurisdiction over nonresidents who engage in some purposeful activity in Virginia to the extent permissible under the due process clause; the acts conferring jurisdiction under this section must coincide with the acts giving rise to the substantive claim, and no single factor is dispositive; the determination whether the statute permits jurisdiction requires examination of both the quantity and quality of the contacts, and this involves questions such as who benefited from the contacts, who initiated them and why, whether the contacts involved any person’s physical presence in the state, and what further conduct in the forum state was contemplated by the parties. Raymond, Colesar, Glaspy & Huss v. Allied Capital Corp., 761 F. Supp. 423, 1991 U.S. Dist. LEXIS 4254 (E.D. Va. 1991).

    The purpose of this long-arm statute is to extend jurisdiction to the extent permissible under the Due Process Clause. Affinity Memory & Micro v. K&Q Enterprises, 20 F. Supp. 2d 948, 1998 U.S. Dist. LEXIS 15460 (E.D. Va. 1998).

    Subdivision A 1 repudiates “doing business” rationale. —

    Subdivision A 1 of this section the “transacting business” subdivision of the long-arm statute, is a repudiation of the “doing business” rationale for the assertion of in personam jurisdiction over nonresident defendants. Viers v. Mounts, 466 F. Supp. 187, 1979 U.S. Dist. LEXIS 14615 (W.D. Va. 1979).

    The scope of the transacting business requirement of this section is limited only by the parameters of due process. Medeco Sec. Locks, Inc. v. Fichet-Bauche, 568 F. Supp. 405, 1983 U.S. Dist. LEXIS 15271 (D. Va. 1983); Bassett Furn. Indus., Inc. v. Sexton, 596 F. Supp. 454, 1984 U.S. Dist. LEXIS 22136 (W.D. Va. 1984).

    This section is a single-act statute. —

    This section is a “single act” statute, requiring only a single act of doing business by a person in the Commonwealth to confer jurisdiction over that person by the courts of this State. Darden v. Heck's, Inc., 459 F. Supp. 727, 1978 U.S. Dist. LEXIS 14933 (W.D. Va. 1978); Williams Crane & Rigging, Inc. v. B & L Sys., 466 F. Supp. 956, 1979 U.S. Dist. LEXIS 13633 (E.D. Va. 1979); Associates Fin. Servs. Co. v. McPeek, 222 Va. 176 , 278 S.E.2d 847, 1981 Va. LEXIS 287 (1981).

    This section contemplates the extension of personal jurisdiction to encompass all nonresidents who transact any business within the state so long as the cause of action asserted arises from the nonresident’s transaction of business. One act of transacting business will suffice. Viers v. Mounts, 466 F. Supp. 187, 1979 U.S. Dist. LEXIS 14615 (W.D. Va. 1979).

    Since this section provides “transacting any business in this Commonwealth,” it is a single-act statute requiring only one transaction in Virginia to confer jurisdiction on its courts. United Coal Co. v. Land Use Corp., 575 F. Supp. 1148, 1983 U.S. Dist. LEXIS 11032 (W.D. Va. 1983).

    A single act may constitute a transaction of business under the Virginia long-arm statute if the asserted action arose from that one transaction. Unidyne Corp. v. Aerolineas Argentinas, 590 F. Supp. 391, 1984 U.S. Dist. LEXIS 18842 (E.D. Va. 1984).

    This section is a single-act statute. Therefore, jurisdiction will exist with respect to a cause of action arising from the business transaction if by that one act the nonresident can be said to have engaged in some purposeful activity in Virginia. United States v. Pierre Point Shipping & Inv. Co., 655 F. Supp. 1379, 1987 U.S. Dist. LEXIS 2161 (E.D. Va. 1987); Vill. Lane Rentals, LLC v. Capital Fin. Group, 159 F. Supp. 2d 910, 2001 U.S. Dist. LEXIS 11948 (W.D. Va. 2001).

    A single act amounting to “transacting business” and giving rise to a cause of action may be sufficient to confer jurisdiction under this statute. Affinity Memory & Micro v. K&Q Enterprises, 20 F. Supp. 2d 948, 1998 U.S. Dist. LEXIS 15460 (E.D. Va. 1998).

    If by that act defendant engaged in purposeful activity. —

    A single act committed in Virginia by a nonresident is sufficient to invoke the protection of the jurisdictional statute with respect to any cause of action arising therefrom if by that one act the nonresident can be said to have engaged in some purposeful activity in Virginia. Viers v. Mounts, 466 F. Supp. 187, 1979 U.S. Dist. LEXIS 14615 (W.D. Va. 1979).

    Sole basis for jurisdiction in a given state cannot be that it is the state of residence of the client; an attorney’s role as local counsel in a foreign state might be a good proxy for such a situation. However, where an attorney has represented a client in proceedings in the state of the client’s residence and furthermore understands that his representation of the client is undertaken as part of a multi-state defense strategy that includes the client’s state of residence, that attorney cannot be considered purely local counsel over whom personal jurisdiction cannot be asserted. Guthrie v. Flanagan, No. 3:07cv479, 2007 U.S. Dist. LEXIS 86987 (E.D. Va. Nov. 27, 2007).

    As the attorney represented the clients in a number of depositions in Virginia and, while representing them in North Carolina, coordinated that representation with the parallel litigation in Virginia courts, it was consistent with the dictates of due process for the instant court to exercise personal jurisdiction over the attorney. He reasonably could have expected to be haled into court in Virginia for his actions in representing the clients in the North Carolina proceedings. Guthrie v. Flanagan, No. 3:07cv479, 2007 U.S. Dist. LEXIS 86987 (E.D. Va. Nov. 27, 2007).

    Single act rule applies only when assertion of jurisdiction meets due process. —

    Since asserting in personam jurisdiction under the “transacting business” subdivision is limited by the parameters of the due process clause, the inquiries concerning: (1) the reach of the statutory authority for the assertion of in personam jurisdiction over nonresidents; and (2) the limits due process places on such an assertion of jurisdiction merge and become identical. Thus, the “single act” rule of the long-arm statute is applicable only when the assertion of jurisdiction thereunder comports with due process. Viers v. Mounts, 466 F. Supp. 187, 1979 U.S. Dist. LEXIS 14615 (W.D. Va. 1979).

    Jurisdiction must be based on acts within state. —

    The statute confers no jurisdiction for the assertion of claims that do not arise from the defendant’s acts in the state. City of Va. Beach v. Roanoke River Basin Ass'n, 776 F.2d 484, 1985 U.S. App. LEXIS 24543 (4th Cir. 1985).

    The pertinent factors for assessing whether a defendant has transacted business in the forum are: (1) where any contracting occurred, and where negotiations took place; (2) who initiated the contact; (3) the extent of the communications, both telephonic and written, between the parties; and (4) where the obligations of the parties under the contract were to be performed. Affinity Memory & Micro v. K&Q Enterprises, 20 F. Supp. 2d 948, 1998 U.S. Dist. LEXIS 15460 (E.D. Va. 1998).

    Activities supporting jurisdictional and substantive claims must coincide. —

    In order for a cause of action to arise from business transacted in Virginia, the activities that support the jurisdictional claim must coincide with those that form the basis of the plaintiff’s substantive claim. A single act by a nonresident which amounts to “transacting business” in Virginia and gives rise to a cause of action may be sufficient to confer jurisdiction upon Virginia courts. City of Va. Beach v. Roanoke River Basin Ass'n, 776 F.2d 484, 1985 U.S. App. LEXIS 24543 (4th Cir. 1985).

    Nonresident successor in interest to the manufacturer. —

    The absence of continuity of either ownership or management precluded the finding that any de facto corporate reorganization occurred; therefore, the federal court lacked jurisdiction over the nonresident successor in interest to the manufacturer. Crawford Harbor Assocs. v. Blake Constr. Co., 661 F. Supp. 880, 1987 U.S. Dist. LEXIS 4715 (E.D. Va. 1987).

    2.Minimum Contacts.

    Nonresident must have certain “minimum contacts” with the forum which evince his purposeful availment of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Viers v. Mounts, 466 F. Supp. 187, 1979 U.S. Dist. LEXIS 14615 (W.D. Va. 1979).

    General and specific jurisdiction. —

    When a defendant’s contacts with the forum state are continuous and systematic, a court may exercise general personal jurisdiction over the defendant. In the absence of continuous and systematic contacts, a court may still exercise specific personal jurisdiction when the contacts relate to the cause of action and create a substantial connection with the forum state. Diamond Healthcare of Ohio, Inc. v. Humility of Mary Health Partners, 229 F.3d 448, 2000 U.S. App. LEXIS 24908 (4th Cir. 2000).

    When a suit does not arise out of the defendant’s activities in the forum state, the requisite minimum contacts between the defendant and the forum state must be continuous and systematic, whereas when a suit arises out of the defendant’s activities within the forum state, then a court may exercise specific jurisdiction, and the contacts need not be so extensive, but the fair-warning requirement inherent in due process still demands that the defendant purposely directed its activities at the forum. Weinstein v. Todd Marine Enters., 115 F. Supp. 2d 668, 2000 U.S. Dist. LEXIS 14628 (E.D. Va. 2000).

    Because the contacts were too attenuated and insubstantial to provide a constitutionally sufficient basis for Virginia courts to exercise either general or specific personal jurisdiction over third party defendants, the court could not exercise personal jurisdiction pursuant to Fed. R. Civ. P. 4(k)(1)(A); the court was incapable of finding that third party defendants availed themselves of the privilege of conducting activities in Virginia sufficient to justify the exercise of personal jurisdiction, therefore the corporation did not satisfy the first prong of the due process test. The corporation had the burden of proving personal jurisdiction by a preponderance of the evidence, which it failed to do after being given the opportunity to conduct discovery to make its jurisdiction case and even if the corporation showed that third party defendants purposefully availed themselves of the privilege of conducting activities in Virginia, it certainly failed to show that its claims arose out of those activities directed at Virginia since it could not show that it was the target of an alleged conspiracy, therefore, the corporation did not satisfy the second prong of the due process test. Noble Sec., Inc. v. MIZ Eng'g, Ltd., 611 F. Supp. 2d 513, 2009 U.S. Dist. LEXIS 32415 (E.D. Va. 2009).

    Due process requires that a nonresident have certain minimum contacts within the territory of the forum so that the maintenance of the action does not offend traditional notions of fair play and substantial justice. Darden v. Heck's, Inc., 459 F. Supp. 727, 1978 U.S. Dist. LEXIS 14933 (W.D. Va. 1978).

    To satisfy constitutional due process a defendant must have certain minimum contacts with the forum state such that maintenance of a suit does not offend traditional notions of fair play and substantial justice. Virginia’s long-arm statute has been construed to be as broad as the standard of constitutional due process. Weight v. Kawasaki Motors Corp., 604 F. Supp. 968, 1985 U.S. Dist. LEXIS 22111 (E.D. Va. 1985).

    A state court may exercise this kind of long-arm jurisdiction only if there also exist minimum contacts between the defendant and the forum so that the exercise of jurisdiction does not exceed the parameters of constitutional guarantees of due process. Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393, 1987 U.S. Dist. LEXIS 5120 (W.D. Va. 1987).

    Even if the requirements of the long-arm statute are satisfied, due process requires that the defendant have sufficient minimum contacts with Virginia so that requiring it to defend its interests in Virginia would not offend traditional notions of fair play and substantial justice. Affinity Memory & Micro v. K&Q Enterprises, 20 F. Supp. 2d 948, 1998 U.S. Dist. LEXIS 15460 (E.D. Va. 1998).

    Due process requirements for specific jurisdiction. —

    To satisfy due process in the exercise of specific personal jurisdiction, the nature and quality of the nonresident defendant’s contacts with the forum must be significant in relation to the specific cause of action and this requires a showing that the defendant purposefully directed his activities at residents of the forum thereby availing himself of the privilege of conducting activities therein and invoking the benefits and protections of the forum’s laws. Heathmount A.E. Corp. v. Technodome.com, 106 F. Supp. 2d 860, 2000 U.S. Dist. LEXIS 10591 (E.D. Va. 2000).

    The requirement of purposeful activity in Virginia serves the purpose of ensuring that the constitutional requirements of due process are met, namely, that the defendants have certain “minimum contacts” with the forum state which evince their purposeful availment of the privilege of conducting activities within the forum state. United States v. Douglas, 626 F. Supp. 621, 1985 U.S. Dist. LEXIS 14165 (E.D. Va. 1985).

    Defendant must purposefully avail itself of privilege of conducting activities in forum state. —

    It is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Darden v. Heck's, Inc., 459 F. Supp. 727, 1978 U.S. Dist. LEXIS 14933 (W.D. Va. 1978).

    This section cannot be used to obtain jurisdiction over a nonresident defendant corporation, unless that corporation purposefully avails itself of the privilege of conducting business activities in Virginia. Herman Cantor Corp. v. Cattle King Packing Co., 22 Bankr. 604, 1982 Bankr. LEXIS 3576 (Bankr. E.D. Va. 1982).

    Jurisdiction is constitutionally appropriate where the defendant has purposefully directed its activities at the forum and the litigation arises out of or relates to those activities. Affinity Memory & Micro v. K&Q Enterprises, 20 F. Supp. 2d 948, 1998 U.S. Dist. LEXIS 15460 (E.D. Va. 1998).

    To establish minimum contacts with the forum state, the actions initiated by the defendant must be purposefully directed at the forum state, creating a substantial connection with that state. Weinstein v. Todd Marine Enters., 115 F. Supp. 2d 668, 2000 U.S. Dist. LEXIS 14628 (E.D. Va. 2000).

    Although lack of physical presence in the forum is not dispositive as to the existence of minimum contacts, jurisdiction is only appropriate where a defendant has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities. America Online, Inc. v. Huang, 106 F. Supp. 2d 848, 2000 U.S. Dist. LEXIS 10232 (E.D. Va. 2000).

    A defendant must have purposefully availed itself of the privilege of conducting activities within the forum state to ensure that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous or attenuated contacts. America Online, Inc. v. Huang, 106 F. Supp. 2d 848, 2000 U.S. Dist. LEXIS 10232 (E.D. Va. 2000).

    Law firm defendants’ letters to plaintiff creditors clearly constituted business transactions purposefully directed toward the creditors in Virginia (there was evidence of well over 1,000 letters sent to the creditors), bringing the law firm defendants within the scope of the Virginia long-arm statute and providing a prima facie showing of more than the necessary minimum contacts with the forum state. Capital One Bank (USA) N.A. v. Hess Kennedy Chtd., LLC, No. 3:08CV147-HEH, 2008 U.S. Dist. LEXIS 51252 (E.D. Va. July 3, 2008).

    Where a foreign company filed a Fed. R. Civ. P. 12(b)(2) motion to dismiss, subdivision A 1 of § 8.01-328.1 was satisfied and provided the most appropriate basis for personal jurisdiction; the company deliberately entered into an agreement with a Virginia corporation to design, fabricate, and install a meat curing rack system in Virginia, the corporation’s claims arose from the company’s Virginia-related activities, and exercising personal jurisdiction over the company was constitutionally reasonable. Liberty Mut. Fire Ins. Co. v. Menozzi Luigi & C.S.P.A., 92 F. Supp. 3d 435, 2015 U.S. Dist. LEXIS 33057 (E.D. Va. 2015).

    Jurisdiction may be exercised where defendant so avails itself. —

    Where a foreign corporation has purposefully availed itself of the privilege of conducting business activities within Virginia and thereby invoked the benefits and protection of the laws of this State, it would not offend traditional notions of fair play and substantial justice to require it to submit to the jurisdiction of the courts of this State. August v. HBA Life Ins. Co., 17 Bankr. 628, 1982 Bankr. LEXIS 4900 (Bankr. E.D. Va. 1982).

    Contract with resident insufficient. —

    It is settled that a contract between a resident of the forum state and a nonresident defendant does not, by itself, provide sufficient minimum contacts for personal jurisdiction and that the jurisdictional analysis must focus on the circumstances of the contract negotiations, the contract’s execution and the relationship the contract has to the forum state. America Online, Inc. v. Huang, 106 F. Supp. 2d 848, 2000 U.S. Dist. LEXIS 10232 (E.D. Va. 2000).

    More than simple connection required between state and contract sued upon. —

    This section exists for the purpose of asserting jurisdiction over nonresidents to the extent permissible under the due process clause; however, there must be more than a simple connection between the contract which is being sued upon and the state asserting jurisdiction. Herman Cantor Corp. v. Cattle King Packing Co., 22 Bankr. 604, 1982 Bankr. LEXIS 3576 (Bankr. E.D. Va. 1982).

    Minimum contacts may exist even though no certificate under former § 13.1-102 required. —

    The contention that a firm was not “doing business” in Virginia in such a manner as to necessitate procurement of a certificate of authority from the State Corporation Commission under former § 13.1-102, and therefore has insufficient “minimum contact” with Virginia to permit in personam jurisdiction must be rejected. Peanut Corp. of Am. v. Hollywood Brands, Inc., 696 F.2d 311, 1982 U.S. App. LEXIS 23282 (4th Cir. 1982).

    Absent minimum contacts there can be no question of venue. Herman Cantor Corp. v. Cattle King Packing Co., 22 Bankr. 604, 1982 Bankr. LEXIS 3576 (Bankr. E.D. Va. 1982).

    Improper venue required transfer of antitrust class action claims alleging conspiracy to suppress wages and eliminate competition for labor because Clayton Act venue was improper as to affiliated entities that were not shown to control entity doing business in district and general venue was improper because affiliated entities did not have sufficient minimum contacts with district to be deemed to reside there for venue purposes, nor did underlying events have substantial connection to district. Newbauer v. Jackson Hewitt Tax Serv., No. 1 of 4) 2:18cv679, No. 2 of 4) 2:19cv37, No. 3 of 4) 2:19cv44, No. 4 of 4) 2:19cv49, 2019 U.S. Dist. LEXIS 53826 (E.D. Va. Mar. 28, 2019).

    Jurisdiction over parent corporation. —

    For the court to exercise in personam jurisdiction over a defendant parent corporation, the plaintiff should show: (1) that the subsidiary’s activities in Virginia are sufficient to confer jurisdiction pursuant to this section and (2) that the relationship between the parent and its subsidiary is such that the subsidiary’s actions can be imputed to the parent. The plaintiff can fulfill the second requirement by proving either that the parent uses the subsidiary as its alter ego, or that the subsidiary is the implied agent of the parent. Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393, 1987 U.S. Dist. LEXIS 5120 (W.D. Va. 1987).

    Standing alone, the mere existence of a parent-subsidiary relationship does not conclusively indicate that a parent is within a court’s jurisdiction by way of the subsidiary’s in-state activities. Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393, 1987 U.S. Dist. LEXIS 5120 (W.D. Va. 1987).

    Generally, court can impute behavior of in-state subsidiary to out-of-state parent corporation if the plaintiff proves that the defendant operates in state through an agent. Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393, 1987 U.S. Dist. LEXIS 5120 (W.D. Va. 1987).

    Multiemployer bargaining group without physical presence in the state. —

    A multiemployer bargaining group had sufficient minimum contacts with Virginia so as to sustain the assertion of personal jurisdiction without offending the traditional notions of fair play and justice, despite lack of physical presence in this state. Doe v. Connors, 796 F. Supp. 214, 1992 U.S. Dist. LEXIS 5343 (W.D. Va. 1992).

    Jurisdiction over agent. —

    Exercise of personal jurisdiction over an agent did not offend due process where: (1) the agent did not deny that, on behalf of a New York corporation, he negotiated a contract with a corporation with a principal place of business in Virginia, all the while knowing that the contract would have required the transfer of goods from Virginia, (2) employees of the Delaware corporation with its principal place of business in Virginia affirmed that they were present in Virginia when the agent contacted them by letter and phone during negotiations, and (3) these contacts were sufficient to put the agent on notice that, if a controversy arose in relation to the contract, suit in the courts of Virginia was a possibility. Melnor, Inc. v. SKR Res., Inc., No. 5:04CV00113, 2005 U.S. Dist. LEXIS 28874 (W.D. Va. Nov. 14, 2005).

    Jurisdiction over parent corporation where subsidiary is fictitious shield. —

    A court can assert jurisdiction over a parent corporation if the plaintiff’s evidence demonstrates that the subsidiary is a fictitious shield erected by the parent to protect itself from liability. Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393, 1987 U.S. Dist. LEXIS 5120 (W.D. Va. 1987).

    Out-of-state parent corporation held not subject to jurisdiction. —

    Court could not exercise long-arm jurisdiction over defendant where there was no evidence that out-of-state defendant parent corporation controlled the services that flowed through its subsidiaries or that the subsidiaries were maintained solely to shield defendant from legal liability despite the facts that defendant supervised the creation of the subsidiaries, undertook to finance them and even contributed management skills and resources. Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393, 1987 U.S. Dist. LEXIS 5120 (W.D. Va. 1987).

    Out-of-state partnership. —

    In a case in which the federal court’s jurisdiction was based on diversity jurisdiction and the amount in controversy and a contractor sued a tile company, a grout company, and a Texas partnership that had a 99.9 percent ownership stake in the grout company, the district court lacked personal jurisdiction over the partnership since it did not act directly in connection with the allegedly defective product and the law and the facts in the case did not make the grout company the agent of the partnership. Under § 50-73.87 , a partnership was an entity distinct from its partners, and under subdivision 1 of § 50-73.91 , a partner was an agent of the partnership for the purpose of its business, but there was no authority that the partnership was the corresponding agent of the partner. RCI Contrs. & Eng'rs, Inc. v. Joe Rainero Tile Co., 666 F. Supp. 2d 621, 2009 U.S. Dist. LEXIS 100315 (W.D. Va. 2009).

    British tour service advertising in Virginia. —

    Where defendant, a British tour service, did not have a representative in Virginia who solicited business but did solicit business from the public by advertising its services through travel agencies in the state and by sending marketing brochures to travel agencies for the perusal of the public, the defendant doubtless intended to develop its market in Virginia and to reap the resulting economic benefits; therefore, defendant was subject to Virginia’s long-arm statute. Carter v. Trafalgar Tours Ltd., 704 F. Supp. 673, 1989 U.S. Dist. LEXIS 2514 (W.D. Va. 1989). But see Chedid v. Boardwalk Regency Corp., 756 F. Supp. 941, 1991 U.S. Dist. LEXIS 2372 (E.D. Va. 1991).

    Advertising and solicitation activities in Virginia. —

    Plaintiff who slipped and fell at a New Jersey gambling casino could not sue the casino in Virginia on the basis of the casino’s advertising and solicitation activities in Virginia; except for remote and inadequate “but-for” linkage, there was no causal relation whatever between the advertising and solicitation activities plaintiff relied on to establish personal jurisdiction and the alleged acts of negligence plaintiff relied on as the cause of his injury. Chedid v. Boardwalk Regency Corp., 756 F. Supp. 941, 1991 U.S. Dist. LEXIS 2372 (E.D. Va. 1991).

    Purchase of aircraft. —

    The defendant foreign corporation had minimum contacts with Virginia and, therefore, was subject to personal jurisdiction in connection with a contract for the purchase of two aircraft from the plaintiff where: (1) the defendant initiated contact with a Virginia broker regarding the aircraft, (2) the defendant made several telephone calls to the broker in Virginia and conducted the negotiations over the telephone, (3) the defendant faxed two signed agreements to the broker in Virginia, which were then passed along to the plaintiff in Virginia, and one of these agreements was signed by the plaintiff in Virginia, and (4) the contract contemplated performance by the parties in several states including Virginia. Cambata Aviation, Inc. v. Kan. City Aviation Ctr., Inc., No. 5:01CV00062, 2001 U.S. Dist. LEXIS 17305 (W.D. Va. Oct. 22, 2001).

    Minimum contacts held not present. —

    Defendant corporation’s activities did not constitute minimum contacts necessary for jurisdiction in a patent action where it wrote a letter to plaintiff threatening patent infringement litigation, placed advertisements in national trade magazines which reached subscribers in Virginia, made minimal sales in Virginia, but maintained no sales agent in Virginia. Defendant’s failure to prevent sales of its product is of no jurisdictional value. Medeco Sec. Locks, Inc. v. Fichet-Bauche, 568 F. Supp. 405, 1983 U.S. Dist. LEXIS 15271 (D. Va. 1983).

    Where defendant had on a few occasions exhibited its wares in Virginia and had accepted, in New York, orders submitted by Virginia customers, the total activities of defendant within Virginia cannot be said to have invoked the protection and benefit of the laws of Virginia so as to allow the use of the long-arm statute to obtain personal jurisdiction. A contract of sale accepted in a foreign state and performed there would not satisfy the minimum contacts rule. Luke v. Dalow Indus., Inc., 566 F. Supp. 1470, 1983 U.S. Dist. LEXIS 15434 (E.D. Va. 1983).

    The plaintiff failed to establish that the defendant had sufficient contacts with Virginia to support personal jurisdiction in an action for breach of contract where the plaintiff, a Virginia corporation, had initiated the contractual relationship in Ohio, the resulting agreement contemplated the bulk of the contract’s performance in Ohio and, although there were frequent communications and management activities between the plaintiff’s Virginia office and the site of the work in Ohio, most of these were between the plaintiff’s employees in Virginia and its own employees in Ohio. Diamond Healthcare of Ohio, Inc. v. Humility of Mary Health Partners, 229 F.3d 448, 2000 U.S. App. LEXIS 24908 (4th Cir. 2000).

    The fact that a seller of yachts advertised in several national magazines that were distributed in Virginia, that advertisements for boats sold by the seller could be accessed via the Internet from a computer located within Virginia and that the seller mailed product information directly into Virginia was insufficient to establish sufficient contacts with Virginia to give the court general jurisdiction over the seller. Weinstein v. Todd Marine Enters., 115 F. Supp. 2d 668, 2000 U.S. Dist. LEXIS 14628 (E.D. Va. 2000).

    Foreign hockey player representatives’ Fed. R. Civ. P. 12(b)(2) motion to dismiss the domestic player representatives’ tort claims was granted where the foreign representatives’ contacts with Virginia involved no revenue and only one representative spending only one day in Virginia and although special factors, such as the lack of an alternative American forum and Virginia’s interest in providing a convenient forum for its citizens, were present to some extent, those factors did not support general jurisdiction because the contacts were otherwise so insubstantial. Sportrust Assocs. Int'l, Inc. v. Sports Corp., 304 F. Supp. 2d 789, 2004 U.S. Dist. LEXIS 1233 (E.D. Va. 2004).

    Exercise of personal jurisdiction over the corporation did not comport with due process because: (1) the court could not exercise general jurisdiction over the corporation based solely on the corporation’s compliance with the Virginia registration statute and appointment of an agent for service of process, and the corporation’s additional contacts with Virginia did not rise to a level of “systematic and continuous” contacts sufficient to impose general jurisdiction under the due process clause of the Fifth Amendment; and (2) the exercise of specific jurisdiction over the corporation was improper because none of the companies’ claim arose out of the corporation’s forum-related activities, and thus, it would have been unreasonable to find that the corporation made, used, offered to sell, or sold infringing materials within the forum state. Reynolds & Reynolds Holdings, Inc. v. Data Supplies, Inc., 301 F. Supp. 2d 545, 2004 U.S. Dist. LEXIS 1686 (E.D. Va. 2004).

    District court granted a Delaware limited liability company’s (LLC’s) motion, pursuant to Fed. R. Civ. P. 12(b)(2), to dismiss claims which a Virginia corporation filed against it in a diversity of citizenship action, alleging that the LLC misappropriated trade secrets that the Virginia corporation gave to a person who formed the LLC, because the lawsuit did not arise to any appreciable extent from activities which the LLC directed toward Virginia and the court could not find other facts allowing it to exercise personal jurisdiction under § 8.01-328.1 .Atl. Asset Mgmt. Group, Inc. v. Csira, 328 F. Supp. 2d 614, 2004 U.S. Dist. LEXIS 15444 (E.D. Va. 2004).

    Exercise of personal jurisdiction was not appropriate under subdivisions A 1 through A 4 of Virginia long-arm statute, or the Due Process Clause, because the company did not transact business, contract to supply services or things, or cause a tortious injury in Virginia. The company’s negotiation of and obligations under the licensing agreement did not constitute sufficient minimum contacts for the court to assert personal jurisdiction. Decision Insights, Inc. v. Quillen, No. 05-0335, 2005 U.S. Dist. LEXIS 27482 (E.D. Va. Oct. 21, 2005).

    In this action for breach of contract and constructive fraud, defendants’ motion to dismiss was granted because the court lacked personal jurisdiction over defendants; defendants’ contacts with plaintiffs in Virginia, initiated by plaintiffs, did not rise to the level of “significant” or “long-term.” Putz v. Golden, No. 3:09-CV-00003, 2009 U.S. Dist. LEXIS 121556 (W.D. Va. Dec. 31, 2009).

    Even when the allegations were construed in the light most favorable to the company, it was clear that the owner had no relevant contact with Virginia other than the communications made to the company’s Virginia office and the choice of law and performance provisions in the master gas contract. As such, personal jurisdiction under § 8.01-328.1 did not exist. eServices, LLC v. Energy Purchasing, Inc., No. 3:09CV671-HEH, 2011 U.S. Dist. LEXIS 27254 (E.D. Va. Mar. 15, 2011).

    Pursuant to Fed. R. Civ. P. 12(b)(2), dismissal was appropriate because, pursuant to subdivision A 1 of § 8.01-328.1 , plaintiffs had not established the minimum contacts requirement for the court to exercise personal jurisdiction over defendant corporate officer individually; the officer claimed that he never entered the forum in order to conduct any part of the transaction in question. The officer, in his individual capacity, could not be subject to the same test for personal jurisdiction as the corporations for which he worked. Fill v. Midcoast Fin., Inc., No. 1:12-cv-1054, 2012 U.S. Dist. LEXIS 166549 (E.D. Va. Nov. 20, 2012).

    Bank customer failed to establish that a district court had specific jurisdiction over defendants, a West Virginia bank and its president, as the customer failed to show that defendants had any physical presence in Virginia or that defendants initiated business with the customer via in-person or electronic contacts, and the bank’s limited interactive website could not be used to establish specific jurisdiction over defendants. Hunt v. Calhoun County Bank, Inc., 8 F. Supp. 3d 720, 2014 U.S. Dist. LEXIS 39620 (E.D. Va. 2014).

    District court lacked specific jurisdiction as the employee who accessed the software provider’s servers in the forum state did not know that the servers were located in the forum state, and he was in another state when accessed the servers. In addition, the work the firm performed for the in-state client was done mostly online. StratusLIVE, LLC v. Wimr Grp., LLC, No. 2:19cv623, 2020 U.S. Dist. LEXIS 203652 (E.D. Va. Oct. 14, 2020).

    District court lacked specific jurisdiction as the employee who accessed the software provider’s servers in the forum state did not know that the servers were located in the forum state, and he was in another state when accessed the servers. In addition, the work the firm performed for the in-state client was done mostly online. StratusLIVE, LLC v. Wimr Grp., LLC, No. 2:19cv623, 2020 U.S. Dist. LEXIS 203652 (E.D. Va. Oct. 14, 2020).

    Minimum contacts held present. —

    It was unnecessary for district court to reach and address Fed. R. Civ. P. 4(k)(2) as it possessed jurisdiction over defendant under Virginia’s long-arm statute; defendant initiated contact with plaintiff in Virginia in 1984 and that visit sparked ongoing business transactions, by which defendant repeatedly reached into Virginia to transact business with plaintiff, invoking the benefits and protections of Virginia law. The district court’s exercise of personal jurisdiction over defendant was constitutionally reasonable. CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285, 2009 U.S. App. LEXIS 205 (4th Cir. 2009).

    Personal jurisdiction over defendant nonresident buyer was proper because the balance of the factors under the due process analysis tilted in favor of finding that based on its long standing business relationship defendant purposefully availed itself of the privilege of conducting activities in Virginia, plaintiff seller’s claims arose out of activities in Virginia, and the exercise of personal jurisdiction would have been constitutionally reasonable. Defendant did not come forward with a compelling case that the presence of some other considerations rendered jurisdiction unreasonable. Plastic Fabricating, Inc. v. Electrex Co., No. 7:12-CV-00119, 2012 U.S. Dist. LEXIS 74154 (W.D. Va. May 30, 2012).

    Personal jurisdiction existed over the wife of the owner of a cable television business in a suit claiming failure to pay subscription fees owed to a satellite television system operator; the wife listed the business on a credit card application as her employer, the wife opened the business’s primary bank account, and a cell phone listed in the wife’s name was used to contact the operator. Sky Cable, LLC v. Coley, No. 5:11cv00048, 2013 U.S. Dist. LEXIS 97129 (W.D. Va. July 11, 2013).

    In this copyright infringement action, judgment finding appellee was not subject to personal jurisdiction in any federal forum was reversed because appellants’ claims arose out of activities directed at Virginia and appellee made two globally accessible websites and Virginia visitors used them for alleged music piracy. In addition, appellee knew the Websites were serving Virginian visitors and yet took no actions to limit or block access, all while profiting from the data harvested from the same visitors. UMG Recordings, Inc. v. Kurbanov, 963 F.3d 344, 2020 U.S. App. LEXIS 20037 (4th Cir. 2020), cert. denied, 141 S. Ct. 1057, 208 L. Ed. 2d 525, 2021 U.S. LEXIS 116 (2021).

    Automobile liability insurer could anticipate the risk that its clients would travel in their automobiles to different states and become involved in accidents and litigation there, particularly where it promised to defend its policyholders from any claim or suit arising from a loss or accident within its policy territory, which included the entire United States; therefore, the insurer’s contacts with this Commonwealth were sufficient to establish personal jurisdiction. Rossman v. State Farm Mut. Auto. Ins. Co., 832 F.2d 282, 1987 U.S. App. LEXIS 14402 (4th Cir. 1987).

    Automobile liability insurer must answer to suit in Virginia if its assured causes injury here. Rossman v. Consolidated Ins. Co., 595 F. Supp. 505, 1984 U.S. Dist. LEXIS 23841 (E.D. Va. 1984), dismissed without op., 785 F.2d 305 (4th Cir. 1986).

    Registration of internet domain name sufficient. —

    Where it was undisputed that the registrant of an internet domain name was a California resident and that he had registered the name with a corporation that had its principal place of business in Virginia, this minimum contact was sufficient to satisfy due process as well as to support in personam jurisdiction pursuant to this section. Lucent Techs., Inc. v. Lucentsucks.Com, 95 F. Supp. 2d 528, 2000 U.S. Dist. LEXIS 6159 (E.D. Va. 2000).

    Registration of internet domain name insufficient. —

    The defendant’s two domain name registration agreements with a registrar located in Virginia were not sufficient contacts with Virginia for purposes of personal jurisdiction over the defendant in an action arising from the registration of those domain names. America Online, Inc. v. Huang, 106 F. Supp. 2d 848, 2000 U.S. Dist. LEXIS 10232 (E.D. Va. 2000).

    A nonresident’s mere registration of an Internet domain name with a Virginia registrar was insufficient, standing alone, to create personal jurisdiction over the nonresident. Heathmount A.E. Corp. v. Technodome.com, 106 F. Supp. 2d 860, 2000 U.S. Dist. LEXIS 10591 (E.D. Va. 2000).

    Patent infringement. —

    Patent infringement case would be transferred to a forum in South Carolina, which had personal jurisdiction over the defendants who were at the heart of the case, because production of the alleged infringing products occurred exclusively there, the patentee had little connection with Virginia beyond retail sales of its products, and inclusion of retailers in Virginia indicated forum shopping. Brown Mfg. Corp. v. Alpha Lawn & Garden Equip., Inc., 219 F. Supp. 2d 705, 2002 U.S. Dist. LEXIS 16494 (E.D. Va. 2002).

    Trademark infringement. —

    Company incorporated in Delaware and based in Russia did not purposefully avail itself of the privilege of doing business in Virginia by selling a mobile phone application through third-party websites that placed its product in the stream of commerce without specifically directing activity toward Virginia, and thus the company was not subject to specific personal jurisdiction under Virginia’s long-arm statute in a trademark infringement suit. Zaletel v. Prisma Labs, Inc., 226 F. Supp. 3d 599, 2016 U.S. Dist. LEXIS 177730 (E.D. Va. 2016).

    3.What Constitutes Transacting Business.

    One act of transacting business committed in Virginia by a nonresident may be sufficient to bring the nonresident within the jurisdictional reach of the court. United States v. Douglas, 626 F. Supp. 621, 1985 U.S. Dist. LEXIS 14165 (E.D. Va. 1985).

    Jurisdiction will exist with respect to a cause of action arising from the business transaction if by that one act the nonresident can be said to have engaged in some purposeful activity in Virginia. United States v. Douglas, 626 F. Supp. 621, 1985 U.S. Dist. LEXIS 14165 (E.D. Va. 1985).

    A settled principle, to be sure, is that a single act may constitute transaction of business under Virginia’s Long Arm, provided the action arose from that one transaction. But this principle simply serves to underscore that it is the nature and quality of acts and not their number that determines whether transaction of business has occurred. It does not mean that any single act suffices. Processing Research, Inc. v. Larson, 686 F. Supp. 119, 1988 U.S. Dist. LEXIS 4279 (E.D. Va. 1988).

    Common factors. —

    If personal jurisdiction is allegedly based on a single contact, the factors commonly examined by courts to determine whether business has indeed been transacted within the state include: (1) where the contracting and negotiations occurred; (2) who initiated the contact; (3) the extent of the communication; and (4) where the contractual obligations were to be performed. Masselli & Lane, PC v. Miller & Schuh, PA, No. 99-2440, 2000 U.S. App. LEXIS 11932 (4th Cir. May 30, 2000).

    Legal representation and initiation of contact. —

    When a case involves legal representation by an out-of-state law firm, courts emphasize the importance of the second factor, namely, who initiated the contact. Masselli & Lane, PC v. Miller & Schuh, PA, No. 99-2440, 2000 U.S. App. LEXIS 11932 (4th Cir. May 30, 2000).

    Although a single act by a non-resident defendant may qualify as “transacting business,” the single act must be significant in order to confer jurisdiction. DeSantis v. Hafner Creations, Inc., 949 F. Supp. 419, 1996 U.S. Dist. LEXIS 19420 (E.D. Va. 1996).

    In order for a cause of action to arise from any business transacted in Virginia, the activities that support the jurisdictional claim must coincide with those that form the basis of the plaintiff’s substantive claim. St. Jarre v. Heidelberger Druckmaschinen, 816 F. Supp. 424, 1993 U.S. Dist. LEXIS 17391 (E.D. Va. 1993), aff'd, 19 F.3d 1430, 1994 U.S. App. LEXIS 12950 (4th Cir. 1994).

    Advertising and solicitation of the defendant’s products was not a sufficient basis to assert general jurisdiction over the defendant. Chiaphua Components Ltd. v. The West Bend Co., 95 F. Supp. 2d 505, 2000 U.S. Dist. LEXIS 11589 (E.D. Va. 2000).

    Advertising, negotiating, mailing, and communicating held to constitute transacting business. —

    Seller of scuba equipment purposefully availed itself of privileges of transacting business in Virginia and therefore was subject to personal jurisdiction of district court where seller solicited business in Virginia in nationally distributed magazine subsequently negotiated and undertook contractual obligation with Virginia resident, mailed purchase orders to buyer of air compressor in Virginia, accepted payment from Virginia and after sale of air compressor, continued to deal with buyer in Virginia by telephone and through mails. Cancun Adventure Tours, Inc. v. Underwater Designer Co., 862 F.2d 1044, 1988 U.S. App. LEXIS 16367 (4th Cir. 1988).

    A contract which is accepted and becomes effective in another forum generally will not satisfy minimum contacts. Superfos Invs. Ltd. v. Firstmiss Fertilizer, Inc., 774 F. Supp. 393, 1991 U.S. Dist. LEXIS 14176 (E.D. Va. 1991).

    Consummation of contract in Virginia. —

    The assertion of in personam jurisdiction by the courts of Virginia over a nonresident defendant for causes of action arising from the consummation of a contract in Virginia between the nonresident and a Virginia citizen is contemplated by the “transacting business” subdivision of the long-arm statute, and is also constitutionally sound. Viers v. Mounts, 466 F. Supp. 187, 1979 U.S. Dist. LEXIS 14615 (W.D. Va. 1979).

    Where on at least two fairly recent occasions, the defendants sold and shipped to this Commonwealth machines covered by patents upon which the declaratory judgment respecting infringement was sought, those contacts satisfied the statutory requirement that the cause of action arise from the defendants’ transacting business within this Commonwealth. Furmanite Am., Inc. v. Durango Assocs., 662 F. Supp. 348, 1986 U.S. Dist. LEXIS 20498 (E.D. Va. 1986).

    The assertion of in personam jurisdiction by the trial court over the nonresident defendant for a cause of action arising from the consummation of the contract in Virginia between the plaintiff and the nonresident corporation was proper under the provision of the Virginia long-arm statute where the company aggressively reached into Virginia and recruited a Virginia resident for employment elsewhere. Nan Ya Plastics Corp. United States v. DeSantis, 237 Va. 255 , 377 S.E.2d 388, 5 Va. Law Rep. 1783, 1989 Va. LEXIS 32, cert. denied, 492 U.S. 921, 109 S. Ct. 3248, 106 L. Ed. 2d 594, 1989 U.S. LEXIS 3436 (1989).

    In a brand owner’s suit against a manufacturer and a distributor arising from a manufacturing agreement, long-arm jurisdiction did not exist over the breach of contract claim against the manufacturer, because the claim did not arise out of the parties’ formation of a contract in Virginia or the manufacturer’s alleged transaction of business in Virginia. Bay Tobacco, LLC v. Bell Quality Tobacco Prods., LLC, 261 F. Supp. 2d 483, 2003 U.S. Dist. LEXIS 12709 (E.D. Va. 2003).

    When a court determines whether the consummation of a contract provides a sufficient basis for personal jurisdiction, the court must consider: (1) where the contract was negotiated and executed, (2) who initiated the contact, (3) the extent of the communications, both telephonic and written, between the parties, and (4) where the obligations of the parties under the contract were to be performed. Decision Insights, Inc. v. Quillen, No. 05-0335, 2005 U.S. Dist. LEXIS 27482 (E.D. Va. Oct. 21, 2005).

    In a company’s suit against a consultant for breach of an employment contract and tortious interference with a business contract, the company established personal jurisdiction over the consultant under Virginia’s long-arm statute, because the employment contract was executed in Virginia, it provided that it was governed by Virginia law, it required the consultant to attend biannual board of directors meetings in Virginia, the consultant had extensive communications with the state, the consultant had fair notice that suit in Virginia was possible, and suit in Virginia was not unreasonable. Div. Access Control, Inc. v. Landrum, No. 3:06cv414, 2007 U.S. Dist. LEXIS 31133 (E.D. Va. Apr. 26, 2007).

    Contacts with Virginia clearly were sufficient to constitute the transaction of business within the meaning of the long-arm statute where defendant initiated the relationship with plaintiffs inviting them to become subfranchisors, knowing that they were Virginia residents, defendant anticipated that subfranchisors, would establish franchises in Virginia, the contract was sent to plaintiffs in Virginia and signed by them in Virginia, the parties communicated on a daily basis via telephone, mail and fax, defendant sent letters and other communications to plaintiffs in Virginia and received payments from franchises located in Virginia, the corporate defendant contends that the contract was performed in Georgia because that was where payments were received, however, the contract also called for plaintiffs to recruit and set up franchises in Virginia, to oversee those franchises for the franchisor, and to collect payments from franchisees in Virginia for remittance to defendant, and a substantial part, if not all, of the contract was in fact performed in Virginia. Holland v. Hay, 840 F. Supp. 1091, 1994 U.S. Dist. LEXIS 395 (E.D. Va. 1994).

    Negotiation of terms of subsequent contract insufficient. —

    In an action for breach of contract, negotiation of the essential terms of a subsequent contract was insufficient under the due process clause to satisfy the minimum contacts standard necessary to support an assertion of in personam jurisdiction over nonresidents. Viers v. Mounts, 466 F. Supp. 187, 1979 U.S. Dist. LEXIS 14615 (W.D. Va. 1979).

    Mere contract negotiations carried out in Virginia between a state citizen and a nonresident, with execution and performance of the contract in a foreign forum, would not appear to provide the nexus with Virginia necessary for in personam jurisdiction to be asserted under the “transacting business” subdivision for a cause of action arising from that contract’s breach, since in such a situation the nonresident doubtfully would have been in a position to purposefully avail (himself) of the privilege of conducting activities within (Virginia), thus invoking the benefits and protections of its laws. Viers v. Mounts, 466 F. Supp. 187, 1979 U.S. Dist. LEXIS 14615 (W.D. Va. 1979).

    Mere contract negotiations carried out in Virginia between a state citizen and a nonresident, with execution and performance of the contract in a foreign forum is not a sufficient transaction of business to assert jurisdiction over the defendant. United Coal Co. v. Land Use Corp., 575 F. Supp. 1148, 1983 U.S. Dist. LEXIS 11032 (W.D. Va. 1983).

    Activities of nonresident buyer. —

    While the courts have shown themselves more willing to assume jurisdiction over a nonresident seller than over a nonresident buyer, to the extent the buyer vigorously negotiates, perhaps dictates, contract terms, inspects production facilities and otherwise departs from the passive buyer role it would seem that any unfairness which would normally be associated with the exercise of long-arm jurisdiction over him disappears. GE Co. v. Rose Int'l, Inc., 475 F. Supp. 602, 1979 U.S. Dist. LEXIS 10236 (W.D. Va. 1979).

    The mere fact of the defendant’s status as a buyer could not function to protect it from the reach of this section where the sum total of the defendant’s activities leading to the purchase which was the subject of the action against the defendant served to negate its protestations of passivity. GE Co. v. Rose Int'l, Inc., 475 F. Supp. 602, 1979 U.S. Dist. LEXIS 10236 (W.D. Va. 1979).

    Officers and directors held beyond reach of section. —

    Officers and directors of a foreign corporation which transacted business in this State without a certificate of authority were beyond the reach of the long-arm statute where plaintiff sought under § 13.1-119 (now § 13.1-758 ) to hold them jointly and severally liable for breach of contract, as the plaintiff neither alleged nor provided evidence that the corporation was an agent of the defendants either by express, incidental or apparent power. Miller & Rhoads v. West, 442 F. Supp. 341, 1977 U.S. Dist. LEXIS 12617 (E.D. Va. 1977).

    Airline’s contract with second airline to transport property from New York to Virginia does not make the second airline the agent of the first airline for purposes of obtaining in personam jurisdiction over the first airline. Unidyne Corp. v. Aerolineas Argentinas, 590 F. Supp. 391, 1984 U.S. Dist. LEXIS 18842 (E.D. Va. 1984).

    One isolated shipment did not establish jurisdiction. —

    Where defendant appears to have done everything possible to confine its United States business to its home state of Alaska during this transaction, and never had any dealings with Virginia whatsoever other than when it shipped goods to Virginia on one isolated occasion for the convenience of purchaser, who could not remain in Alaska to take delivery there as originally contemplated by the parties, jurisdiction over defendant was lacking. Chung v. NANA Dev. Corp., 783 F.2d 1124, 1986 U.S. App. LEXIS 22423 (4th Cir.), cert. denied, 479 U.S. 948, 107 S. Ct. 431, 93 L. Ed. 2d 381, 1986 U.S. LEXIS 4640 (1986).

    The district court’s determination that defendant’s failure to insure the goods rendered it the party at fault did not overcome a lack of jurisdiction, where defendant’s actions were not sufficiently purposeful. Personal jurisdiction is not to be determined by a peek at the merits, but established on independent grounds. Chung v. NANA Dev. Corp., 783 F.2d 1124, 1986 U.S. App. LEXIS 22423 (4th Cir.), cert. denied, 479 U.S. 948, 107 S. Ct. 431, 93 L. Ed. 2d 381, 1986 U.S. LEXIS 4640 (1986).

    Mere phone calls and letters, and arguably fax communications, in furtherance of a transaction, are insufficient to form a basis for personal jurisdiction. Superfos Invs. Ltd. v. Firstmiss Fertilizer, Inc., 774 F. Supp. 393, 1991 U.S. Dist. LEXIS 14176 (E.D. Va. 1991).

    Telephonic and written communications. —

    Where telephonic negotiations occurred with one of the participants located in Virginia, and numerous written communiques between the parties were sent to and received in Virginia, there was sufficient “contracting” in Virginia to amount to the transaction of business from which the cause of action arose. Peanut Corp. of Am. v. Hollywood Brands, Inc., 696 F.2d 311, 1982 U.S. App. LEXIS 23282 (4th Cir. 1982).

    Mere telephone conversations, telex messages and letters negotiating a transaction, are insufficient to form a basis for in personam jurisdiction. Unidyne Corp. v. Aerolineas Argentinas, 590 F. Supp. 391, 1984 U.S. Dist. LEXIS 18842 (E.D. Va. 1984).

    Where defendants merely forwarded an unsolicited letter outlining suggestion of plaintiff Virginia corporation that New York City market pieces of the Brooklyn Bridge in commemoration of its centennial to the company that controlled the Brooklyn Bridge logo, district court properly dismissed action brought against them by plaintiff for lack of personal jurisdiction under this section. Promotions, Ltd. v. Brooklyn Bridge Centennial Comm., 763 F.2d 173, 1985 U.S. App. LEXIS 20702 (4th Cir. 1985).

    Mere telephone conversations, telexes and letters negotiating a transaction do not suffice. Processing Research, Inc. v. Larson, 686 F. Supp. 119, 1988 U.S. Dist. LEXIS 4279 (E.D. Va. 1988).

    Frequent communications by phone and by email. —

    Virginia’s long-arm statute authorized personal jurisdiction over defendants based on their transaction of business in Virginia, including reaching into Virginia to solicit business from Virginia-based plaintiff and communicating with plaintiff “hundreds of times” by phone and by email while plaintiff was in Virginia. Potomac Auto Mall Holdings, Inc. v. Blue Clover Fin., L LC, No. 1:20-cv-865, 2020 U.S. Dist. LEXIS 221209 (E.D. Va. Nov. 24, 2020), dismissed in part, No. 1:20-cv-865, 2021 U.S. Dist. LEXIS 74402 (E.D. Va. Apr. 16, 2021).

    Faxes and creation of website not sufficient. —

    Fact that a German bank made phone calls and fax transmissions to a Virginia partnership in Virginia regarding a letter of credit that was issued in favor of the partnership did not mean that the bank was transacting business in Virginia under Virginia’s long-arm statute, and a federal district court sitting in Virginia held that it lacked personal jurisdiction over the German bank in the partnership’s action claiming that the bank wrongfully refused to make payment on the letter of credit when the partnership presented the letter for payment at the bank’s office in London, England. RZS Holdings, AVV v. Commerzbank, AG, 279 F. Supp. 2d 716, 2003 U.S. Dist. LEXIS 15315 (E.D. Va. 2003).

    Foreign bank’s contacts with Virginia were not sufficient to establish personal jurisdiction under the transaction of business prong of subdivision A 1 of § 8.01-328.1 ; mere faxes into the state would not suffice and the creation of a website did not create a potential cause of action in the state’s courts. RZS Holdings AVV v. PDVSA Petroleos S.A., 293 F. Supp. 2d 645, 2003 U.S. Dist. LEXIS 21846 (E.D. Va. 2003).

    Transmission of electronic signals via the internet. —

    Without something more than the transmission of electronic signals into Virginia via the Internet, a West Virginia bank’s online banking services, which had limited interactivity, did not provide a basis for a district court in Virginia to exercise general jurisdiction over the bank. Hunt v. Calhoun County Bank, Inc., 8 F. Supp. 3d 720, 2014 U.S. Dist. LEXIS 39620 (E.D. Va. 2014).

    Interactive website. —

    Personal jurisdiction existed over a nonresident corporation because the corporation transacted business in Virginia by maintaining an interactive e-commerce website accessible to Virginia residents, thus purposefully directing commercial activities into the state even though its sales there were only a small percentage of its total sales. Officers of the corporation were not subject to personal jurisdiction based only on being officers. Thousand Oaks Barrel Co., LLC v. Deep South Barrels LLC, 241 F. Supp. 3d 708, 2017 U.S. Dist. LEXIS 40011 (E.D. Va. 2017).

    Payment, delivery, and negotiations constitute transacting business. —

    The aggregate contacts of paying the purchase price in the forum state, delivering purchased goods in the state, traveling to the state for negotiations or inspections making a contract with an economic impact on the state, and construing the agreement according to the law of the forum, constituted “transacting business” in Virginia. United Coal Co. v. Land Use Corp., 575 F. Supp. 1148, 1983 U.S. Dist. LEXIS 11032 (W.D. Va. 1983).

    Contract to transfer funds. —

    The plaintiffs’ cause of action for breach of contract clearly arose from the defendant bank’s “contracting to supply services or things in this Commonwealth,” in the language of this section, where the bank, in accord with a prior course of dealing, had contracted to transfer funds deposited by one of the plaintiffs to the plaintiffs in Virginia on a certain date and failed to honor this obligation. Glumina Bank v. D.C. Diamond Corp., 259 Va. 312 , 527 S.E.2d 775, 2000 Va. LEXIS 55 (2000).

    Communications, negotiations, and appointment of agent held to constitute transacting business. —

    Where defendant sent several telephonic, telexic, and written communications to Virginia; negotiated the original contract and a contract dispute in the State; received a signed letter-agreement from Virginia and returned it there; authorized a Virginia corporation to be its exclusive sales agent with a third corporation; received payments allegedly drawn on and finally paid by Virginia banks; obtained shipment orders from its agent; and reaped the benefits of having its Virginia agent sell the goods, it transacted business in Virginia, although the goods sold under the contract never passed through the Commonwealth and the formal contract was not executed by the defendant in Virginia. United Coal Co. v. Land Use Corp., 575 F. Supp. 1148, 1983 U.S. Dist. LEXIS 11032 (W.D. Va. 1983).

    Contracting for local firm to perform work in state. —

    It is settled that a nonresident transacts business in Virginia where the nonresident establishes an ongoing contractual relationship with a Virginia firm that requires the latter to perform work in Virginia. America Online, Inc. v. Huang, 106 F. Supp. 2d 848, 2000 U.S. Dist. LEXIS 10232 (E.D. Va. 2000).

    Contract between a forum state resident and a nonresident did not establish personal jurisdiction. —

    Stepson failed to establish personal jurisdiction by a preponderance of the evidence where: (1) without the stepson’s affidavit, the only Virginia contact in the case was that the widow executed a contract in Texas with the stepson, a Virginia resident, (2) it was of no consequence that the contract provided for the transfer of common stock in a Virginia corporation, as the agreement transferred the stock to the husband only, (3) the widow had no ownership interest in the corporation at the time and signed the agreement only because the community property rules of Texas required her assent, and (4) in any case, a contract between a forum state resident and a nonresident did not, by itself, establish personal jurisdiction over the nonresident. Mann v. Mann, No. 1:05cv687, 2005 U.S. Dist. LEXIS 30973 (E.D. Va. Nov. 22, 2005).

    Corporation was subject to personal jurisdiction in absence of executed contract. —

    Where a proposed contract between defendant auto leasing company, a Michigan corporation, and plaintiff Virginia corporation, required defendant to lease to plaintiff personal property which defendant owned and which was located in Virginia, where proposed contract if executed would have made defendant subject to suit in Virginia on the contract, and where defendant granted to plaintiff, by sending it the proposal, the power to consummate such a contract with it, and encouraged plaintiff to send a deposit to it as called for in the proposal, defendant could be held liable to suit in Virginia in regard to the proposed contract. Industrial Carbon Corp. v. Equity Auto & Equip. Leasing Corp., 737 F. Supp. 925, 1990 U.S. Dist. LEXIS 6240 (W.D. Va. 1990), dismissed without op., 922 F.2d 835, 1991 U.S. App. LEXIS 7389 (4th Cir. 1991).

    Where plaintiffs’ claims of fraud and violations of the Virginia Retail Franchising Act stem directly from the ongoing contractual relationship between parties and their status as franchisor and subfranchisor, a status created by the subfranchise contract, ultimately was the basis suit, clearly, the cause of action arose from defendant’s transaction of business in Virginia within meaning of long-arm statute. Holland v. Hay, 840 F. Supp. 1091, 1994 U.S. Dist. LEXIS 395 (E.D. Va. 1994).

    Foreign motor vehicle manufacturer. —

    Recent decisions in which foreign motor vehicle manufacturers had a sales arrangement have held that the fact that a foreign parent conducts its marketing and distribution in the United States through an independent distribution system does not shield it from in personam jurisdiction. Due process is satisfied as long as the foreign manufacturer knew and intended that its vehicles would be sold in Virginia. Weight v. Kawasaki Motors Corp., 604 F. Supp. 968, 1985 U.S. Dist. LEXIS 22111 (E.D. Va. 1985).

    Legal representation. —

    Where one defendant met with attorney in Virginia to discuss the possibility of attorney’s firm representing defendants in California, engaged the Virginia law firm to represent them in their California litigation, settled disputes concerning that representation via telephone communications between attorneys in Virginia, and defendants in Oregon, and after attorney had been representing defendant for more than two years in the California case, one defendant traveled to Virginia to meet with the firm and discussed retainer agreement and unpaid fees and costs, and where numerous correspondence was exchanged between law firm, and defendants mailed checks to attorneys in Virginia to cover costs and attorney’s fees, these circumstances, when considered together, held to constitute contacts sufficient to satisfy the Virginia long-arm statute. Hirschkop & Grad v. Robinson, 757 F.2d 1499, 1985 U.S. App. LEXIS 29862 (4th Cir. 1985).

    Preparation of offering memorandum by out-of-state law firm. —

    In a third-party complaint alleging that the third-party defendant, a California law firm, had been involved in the preparation of an offering memorandum containing misrepresentations that induced the plaintiffs, Virginia residents, to purchase interests in a limited partnership, the firm had not transacted business in Virginia and, therefore, was not subject to personal jurisdiction under subdivision A 1 of this section where the firm had not represented any clients who resided or had their headquarter in Virginia, the firm had never had an office, post office box or telephone number in Virginia, none of the firm’s lawyers was admitted to practice law in Virginia and all of the firm’s contributions to the offering memorandum were made in California; even when the firm’s subsequent contacts with Virginia via phone and letter were considered, the aggregation of the firm’s contacts with Virginia were insignificant. Vill. Lane Rentals, LLC v. Capital Fin. Group, 159 F. Supp. 2d 910, 2001 U.S. Dist. LEXIS 11948 (W.D. Va. 2001).

    Decision to associate with law firm on case. —

    Few examples of transacting business are more classic than California attorney’s decision to associate a Virginia law firm on a case and his subsequent dealings with that firm; because California attorney transacted business in Virginia, and because Virginia attorney’s cause of action arose directly from those activities, the Virginia long-arm statute was satisfied. English & Smith v. Metzger, 901 F.2d 36, 1990 U.S. App. LEXIS 5879 (4th Cir. 1990).

    A lawyer who knowingly serves abusive process in a jurisdiction may expect to be haled into court where service was effectuated, since by such action he is purposely availing himself of the privilege of conducting activities within the forum state. Schleit v. Warren, 693 F. Supp. 416, 1988 U.S. Dist. LEXIS 9390 (E.D. Va. 1988).

    Gathering financial information and publishing newspaper article. —

    A Massachusetts corporation which analyzed financial information gathered from the Federal Reserve Board and distributed its analysis to its customers, mostly money market and cash managers, some of whom were in Virginia, which after specifying that credit for the material be spelled out, furnished information to a financial columnist based in New York City who used it to write an article which appeared in the Richmond Times-Dispatch, stating that plaintiff, a Virginia bank, had a $476,000 annualized net loss and would reach zero equity within eleven months, could be subjected to personal jurisdiction under Virginia long-arm statute in a defamation suit brought by the Virginia bank. Blue Ridge Bank v. Veribanc, Inc., 755 F.2d 371, 1985 U.S. App. LEXIS 29495 (4th Cir. 1985).

    Placing advertisement in national periodical and responding to inquiry not enough to invoke section. —

    Where an aircraft broker did nothing more than place a classified ad in a national periodical specializing in used aircraft and then respond to an inquiry from a prospective buyer and its bank in Virginia, his actions did not fit the actions necessary to invoke this section. Processing Research, Inc. v. Larson, 686 F. Supp. 119, 1988 U.S. Dist. LEXIS 4279 (E.D. Va. 1988).

    The total sale of little more than $300 worth of goods in one year, triggered by advertisement in a national magazine, did not satisfy the “substantial revenue” basis for jurisdiction. DeSantis v. Hafner Creations, Inc., 949 F. Supp. 419, 1996 U.S. Dist. LEXIS 19420 (E.D. Va. 1996).

    Where the defendant purposefully availed itself of the opportunity to provide ongoing benefit coverage for Commonwealth residents under a health and benefit plan, including the plaintiff’s decedent, such activity constitutes the transaction of business within the meaning of subdivision A 1 of this section, particularly in light of the fact that benefit claims under the plan appeared to be handled exclusively through correspondence between the plan and its participants. Skelton v. Lowen, 665 F. Supp. 469, 1987 U.S. Dist. LEXIS 6799 (E.D. Va. 1987).

    Sales of equipment to Virginia corporation. —

    A Minnesota corporation which, over a period of years, sold $120,000 worth of equipment to a Virginia corporation, and solicited business by telephone from this corporation, and sent them a series of letters and bids, and on at least one occasion sent a representative to visit the corporation in Virginia, clearly transacted business in Virginia, for jurisdictional purposes under this section. Eastern Scientific Mktg., Inc. v. Tekna-Seal, Inc., 696 F. Supp. 173, 1988 U.S. Dist. LEXIS 11097 (E.D. Va. 1988).

    Employee’s employment-related business contacts were sufficient. —

    When viewed as a whole, a former employee’s contacts in the forum state amounted to transacting business there; the contacts were sufficiently related to the cause of action, e.g. breach of a confidentiality and non-solicitation agreement, to be relevant to the exercise of personal jurisdiction; and the employee had purposefully established sufficient contacts with the forum to make jurisdiction constitutionally reasonable under the Due Process Clause. Prod. Group Int'l v. Goldman, 337 F. Supp. 2d 788, 2004 U.S. Dist. LEXIS 19158 (E.D. Va. 2004).

    Employment on commission basis. —

    In a breach of contract and tort action, where plaintiff received at his Virginia mailing address defendant’s letter offering him a position as a manufacturer’s representative and a later letter purporting to change the terms of his sales commissions, and finally a letter purporting to terminate his employment with defendant, and in addition, plaintiff regularly received his commission checks in Virginia and discussed the terms and conditions of his employment by phone from Virginia, those exchanges constituted transaction of business within this state. Herbert v. Direct Wire & Cable, Inc., 694 F. Supp. 192, 1988 U.S. Dist. LEXIS 10331 (E.D. Va. 1988).

    Claim for sales commissions. —

    A claim by a Pennsylvania sales representative against a Minnesota corporation for commissions earned on sales to a Virginia customer, seeking damages for potential future sales in the state, where it was sole sales representative, arose out of transactions in Virginia for purposes of this section. Eastern Scientific Mktg., Inc. v. Tekna-Seal, Inc., 696 F. Supp. 173, 1988 U.S. Dist. LEXIS 11097 (E.D. Va. 1988).

    Consulting work. —

    Court did not have personal jurisdiction over defendant, where defendant did not live in Virginia, only made infrequent trips to Virginia to see his family, and there was no showing that the availment of a Virginia business opportunity (consisting of about 10 hours of consulting work per month for a Virginia corporation) was continuous and systematic, or more than random, fortuitous, or attenuated. Williams v. Reynolds, No. 4:06CV00020, 2006 U.S. Dist. LEXIS 76467 (W.D. Va. Oct. 20, 2006).

    Employment by Virginia consulting firm insufficient. —

    In an action involving business dealings that occurred in India and allegedly defamatory e-mails that were composed and sent in India, evidence showing that defendant, a resident of India, was an employee of a consulting firm headquartered in Virginia did not support an inference that defendant had ever been present or was doing business in Virginia within the meaning of subsection A of § 8.01-328.1 .Headstrong Corp. v. Jha, No. 3:05CV813-HEH, 2007 U.S. Dist. LEXIS 31135 (E.D. Va. Apr. 27, 2007).

    Delivery, communications, and repair of boat held to constitute transacting business. —

    The defendant transacted business within the meaning of this section where, even though the defendant had initially agreed to deliver boat to South Carolina, the defendant was paid additional consideration to deliver purchased vessel to Virginia, the defendant’s employees had telephone conversations with the plaintiff, discussed the status of repairs and improvements to the boat, and finally, the repair work was performed in Virginia. Peninsula Cruise, Inc. v. New River Yacht Sales, Inc., 257 Va. 315 , 512 S.E.2d 560, 1999 Va. LEXIS 26 (1999).

    Hostile takeover. —

    Court had personal jurisdiction under Virginia’s long-arm statute over defendants, the officers and directors of a Florida corporation, over which they gained control in a hostile takeover. D'Addario v. Geller, 264 F. Supp. 2d 367, 2003 U.S. Dist. LEXIS 6045 (E.D. Va. 2003).

    Jurisdiction over nonresident parent corporation. —

    Personal jurisdiction was not proper over nonresident parent corporation under Virginia’s long arm jurisdiction or due process limitations because in light of the nonresident parent corporation’s specific denials of any ongoing interactions with Virginia, as expressed by sworn affidavit, the plaintiff had failed to demonstrate how the alleged business transactions that the nonresident parent corporation had conducted in Virginia provided the basis for the causes of action raised by the plaintiff. Further, the plaintiff was not able to establish minimum contacts under a stream of commerce theory where the claimed injuries stemmed from the marketing of certain products (firearms) that had not been established to have been marketed or manufactured by nonresident parent corporation. Colt Def. LLC v. Heckler & Koch Def., Inc., No. 2:04cv258, 2004 U.S. Dist. LEXIS 28690 (E.D. Va. Oct. 22, 2004), transferred, No. 04-240-P-S, 2005 U.S. Dist. LEXIS 20874 (D. Me. Sept. 20, 2005).

    Contacts not sufficient. —

    Defendants’ alleged contacts with Virginia were not sufficient to conclude that they transacted business in Virginia and thus were subject to personal jurisdiction; it was undisputed that defendants had no facilities or presence in Virginia, maintained no offices in Virginia, nor did they employ individuals in Virginia. Plaintiff did not point to any single business transaction upon which he based his claim. Willis v. Clark, No. 3:05CV325, 2005 U.S. Dist. LEXIS 25877 (E.D. Va. Oct. 31, 2005).

    Insurer’s declaratory judgment against defendant insureds was dismissed for lack of personal jurisdiction because general jurisdiction could not rest on three small sales in Virginia. Hartford Cas. Ins. Co. v. JR Mktg., LLC, 511 F. Supp. 2d 644, 2007 U.S. Dist. LEXIS 71584 (E.D. Va. 2007).

    Federal district court in Virginia did not err in finding that defendant’s contacts with Virginia were too attenuated to support specific personal jurisdiction; defendant engaged in no on-going business activities in Virginia, the only in-person meeting among the parties occurred in India, and the activity of which plaintiff complained of, the hiring of a certain individual in alleged violation of a nondisclosure agreement, took place in India. Consulting Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 2009 U.S. App. LEXIS 6081 (4th Cir. 2009).

    C.Tortious Injury.
    1.In General.

    The exercise of jurisdiction under subdivision A 4 of this section has two requirements: (1) a tortious injury in Virginia caused by an act or omission outside of Virginia; and (2) a relationship between the defendant and the Commonwealth which exists in any one of three ways which are specified in A 4. Blue Ridge Bank v. Veribanc, Inc., 755 F.2d 371, 1985 U.S. App. LEXIS 29495 (4th Cir. 1985); Robinson v. Egnor, 699 F. Supp. 1207, 1988 U.S. Dist. LEXIS 13188 (E.D. Va. 1988).

    Jurisdiction under subdivision A 4 requires the court to find that the specific statutory requirements are met even in those situations where it could plausibly be argued that a lesser standard would meet due process, inasmuch as insistence that these particulars be satisfied is a course mandated by legislative judgment. Robinson v. Egnor, 699 F. Supp. 1207, 1988 U.S. Dist. LEXIS 13188 (E.D. Va. 1988).

    The fact that the qualifier “tortious” is present in subsection A 4 but missing in A 5 need not concern the court. The word “tortious” is something of a misnomer, since whether or not the injury was tortious is generally the fact at issue. Whether the court may assert jurisdiction pursuant to A 4 or A 5, therefore, turns on whether injury has occurred in Virginia. Pennington v. McDonnell Douglas Corp., 576 F. Supp. 868, 1983 U.S. Dist. LEXIS 11767 (E.D. Va. 1983).

    Factors considered under “substantial revenue” test. —

    Certain factors of the “substantial revenue” test have been established: (1) that revenue derived from sales, and not profits, must be substantial, (2) that the revenue may be derived from a single transaction; and (3) that the sale itself need not take place in Virginia so long as the goods are used or consumed in this State. Gordonsville Indus., Inc. v. American Artos Corp., 549 F. Supp. 200, 1982 U.S. Dist. LEXIS 16335 (W.D. Va. 1982).

    Percentage of total sales occurring in Virginia. —

    One fact that may be considered is the percentage of total sales of the nonresident corporation which occur in Virginia. Gordonsville Indus., Inc. v. American Artos Corp., 549 F. Supp. 200, 1982 U.S. Dist. LEXIS 16335 (W.D. Va. 1982).

    It is difficult to identify an absolute amount which ipso facto must be deemed substantial. Gordonsville Indus., Inc. v. American Artos Corp., 549 F. Supp. 200, 1982 U.S. Dist. LEXIS 16335 (W.D. Va. 1982).

    Tortious injury is the wrongful death of the decedent, not economic consequences thereof. —

    Wrongful death acts may grant relief for intangible injury to the survivors, but the tortious injury is the death of the decedent, not the economic consequences that flow from his death. Injury to the plaintiff did not occur in Virginia where the decedent was killed in an airplane crash in the Mediterranean Sea, and therefore subsections A 4 and A 5 of this section were not applicable. Pennington v. McDonnell Douglas Corp., 576 F. Supp. 868, 1983 U.S. Dist. LEXIS 11767 (E.D. Va. 1983).

    Abuse of civil process. —

    In determining whether Virginia’s long-arm statute purports to confer jurisdiction for abuse of civil process, the court must decide two sub-issues: first, whether the process server acts as the agent of the attorney, thereby coming under the general requirements of the Virginia long-arm statute; and second, whether the tortious “act” occurred in this forum, thereby bringing the facts within the specific requirements of subdivision A 3 of this section. Schleit v. Warren, 693 F. Supp. 416, 1988 U.S. Dist. LEXIS 9390 (E.D. Va. 1988).

    An attorney may be held liable for torts arising from a process server’s acts done within the scope of the agency relationship. Schleit v. Warren, 693 F. Supp. 416, 1988 U.S. Dist. LEXIS 9390 (E.D. Va. 1988).

    Communication with media. —

    Because all actions of the defendants were performed outside of Virginia, their single respective acts in communicating with the media regarding plaintiff were insufficient to confer jurisdiction unless one of the three relationships described in subdivision (A)(4) existed between the defendant and the Commonwealth even if the plaintiff was injured within the state. Defendants’ telephone interviews with the media were too random, fortuitous, and attenuated to support the court’s exercise of either specific or general jurisdiction. Barry v. Whalen, 796 F. Supp. 885, 1992 U.S. Dist. LEXIS 9209 (E.D. Va. 1992).

    Where defendant was not physically present in Virginia when committing the tort at issue, this section did not apply. DeSantis v. Hafner Creations, Inc., 949 F. Supp. 419, 1996 U.S. Dist. LEXIS 19420 (E.D. Va. 1996).

    Sufficiency of contacts over internet. —

    A plaintiff failed to establish that the court had personal jurisdiction over the nonresident defendants where the defendants appeared to have done nothing more than place information on a pornographic web site with knowledge of the possibility that someone in Virginia might access the site. There was no evidence that the defendants sold products in Virginia, had employees in Virginia, held meetings in Virginia or conducted advertising or other promotional activity directed specifically to Virginia and, even taking the plaintiff’s allegations of e-mail and credit card solicitation on the web site as true, the record was abundantly void of evidence that the defendants, through their web site, purposely availed themselves of the benefits of Virginia law or purposely directed their activities at the plaintiff. Roche v. Worldwide Media, Inc., 90 F. Supp. 2d 714, 2000 U.S. Dist. LEXIS 4035 (E.D. Va. 2000).

    Contacts not causally connected. —

    Plaintiff could not establish personal jurisdiction under the Virginia long arm statute against a ski resort because the resort’s advertisements through the media and on the Internet were not causally connected to plaintiff’s injury. Pearson v. White Ski Co., 228 F. Supp. 2d 705, 2002 U.S. Dist. LEXIS 21480 (E.D. Va. 2002).

    Specific jurisdiction minimum contacts. —

    Insurer’s declaratory judgment against defendant insureds was dismissed for lack of jurisdiction because defendant insureds’ limited contacts with the forum state were the result of a third party’s decision to file the underlying action, which could not satisfy the requirement of contact with the forum state. Hartford Cas. Ins. Co. v. JR Mktg., LLC, 511 F. Supp. 2d 644, 2007 U.S. Dist. LEXIS 71584 (E.D. Va. 2007).

    Insurer’s declaratory judgment against defendant insureds was dismissed for lack of jurisdiction because while defendant insureds might have foreseen business litigation in Virginia at the time they purchased the policy, they could not have reasonably anticipated being haled into court there to determine their rights under an insurance policy delivered to them in California. Hartford Cas. Ins. Co. v. JR Mktg., LLC, 511 F. Supp. 2d 644, 2007 U.S. Dist. LEXIS 71584 (E.D. Va. 2007).

    Insurer’s declaratory judgment against defendant insureds was dismissed for lack of jurisdiction because the mere purchase of an insurance policy with nationwide coverage did not subject insureds to personal jurisdiction in every state of the union. Hartford Cas. Ins. Co. v. JR Mktg., LLC, 511 F. Supp. 2d 644, 2007 U.S. Dist. LEXIS 71584 (E.D. Va. 2007).

    Foreign bank’s revenue earned indirectly insufficient to meet tortious injury requirements. —

    A contention that the bank earned substantial revenue indirectly through payments it received from another defendant, that operated service stations in the state, was meritless. RZS Holdings AVV v. PDVSA Petroleos S.A., 293 F. Supp. 2d 645, 2003 U.S. Dist. LEXIS 21846 (E.D. Va. 2003).

    2.Acts or Omissions in Commonwealth.

    The due process considerations of the United States Constitution are not a limitation on subdivision A 3 of the Virginia long-arm statute. Navis v. Henry, 456 F. Supp. 99, 1978 U.S. Dist. LEXIS 17330 (E.D. Va. 1978).

    But, instead, subdivision A 3 is less inclusive than due process. Navis v. Henry, 456 F. Supp. 99, 1978 U.S. Dist. LEXIS 17330 (E.D. Va. 1978).

    Defendant’s action constituted “act” in Commonwealth. —

    Defendant organization’s placement of plaintiff’s name on a “scab” list, which was posted on various bulletin boards in a computer center electronic switchboard system operated within the state, which subsequently resulted in the termination of his contract negotiations with a potential employer, constituted an “act” in this Commonwealth. Krantz v. Air Line Pilots Ass'n, Int'l, 245 Va. 202 , 427 S.E.2d 326, 9 Va. Law Rep. 944, 1993 Va. LEXIS 50 (1993).

    Single act is sufficient. —

    A single act causing tortious injury by a mere sojourner within the State subjects that person to service of process under the Virginia long-arm statute without offending the due process clause. Navis v. Henry, 456 F. Supp. 99, 1978 U.S. Dist. LEXIS 17330 (E.D. Va. 1978).

    A single act committed within the Commonwealth resulting in tortious injury confers jurisdiction upon the actor, although a single act committed outside the Commonwealth and resulting in tortious injury within is insufficient to confer jurisdiction unless the defendant has engaged in some persistent course of conduct or derives substantial revenue from goods used or consumed or services rendered within Virginia. Darden v. Heck's, Inc., 459 F. Supp. 727, 1978 U.S. Dist. LEXIS 14933 (W.D. Va. 1978).

    A single act of a defendant, committed inside the Commonwealth either personally or through an agent, will be sufficient to invoke the jurisdiction of the courts of the Commonwealth over that defendant with respect to any cause of action arising from that act. Darden v. Heck's, Inc., 459 F. Supp. 727, 1978 U.S. Dist. LEXIS 14933 (W.D. Va. 1978).

    It has generally been held that a single act committed within the Commonwealth resulting in tortious injury is sufficient under the due process clause to confer jurisdiction over the actor, even if the actor is a mere sojourner within the states. Humphreys v. Pierce, 512 F. Supp. 1321, 1981 U.S. Dist. LEXIS 11996 (W.D. Va. 1981).

    Only a single act of transacting business in the Commonwealth is required, but to confer jurisdiction over a defendant, the single act must be significant. Willis v. Clark, No. 3:05CV325, 2005 U.S. Dist. LEXIS 25877 (E.D. Va. Oct. 31, 2005).

    When event meets “single act” test. —

    An event does not meet the “single act” test and thereby confer jurisdiction if it can only technically be said to have transpired in Virginia. It meets this test if and only if it satisfies the requirements of due process, that by this act defendant has shown a purpose of conducting activities in this State to an extent that it would be fair and just to require him to submit to the jurisdiction of its courts. Darden v. Heck's, Inc., 459 F. Supp. 727, 1978 U.S. Dist. LEXIS 14933 (W.D. Va. 1978).

    Directors in hostile takeover. —

    Court had personal jurisdiction under Virginia’s long-arm statute over defendants, the officers and directors of a Florida corporation, over which they gained control in a hostile takeover. D'Addario v. Geller, 264 F. Supp. 2d 367, 2003 U.S. Dist. LEXIS 6045 (E.D. Va. 2003).

    Injury through negligence of vacationer. —

    Where the defendant was visiting Virginia on vacation and while attempting to get a fire going in his charcoal grill, allegedly through his negligence, the charcoal lighter fluid exploded and injured plaintiffs, defendant was subject to jurisdiction and service of process under this section and § 8.01-329 . Navis v. Henry, 456 F. Supp. 99, 1978 U.S. Dist. LEXIS 17330 (E.D. Va. 1978).

    Claim alleging common-law action of deceit. —

    This statute permitted service of process on the defendant since the plaintiff’s misrepresentation claims sufficiently alleged the common-law action of deceit, and since that action arose out of the defendant’s misrepresentation in Virginia, resulting in tortious injury in the State. Humphreys v. Pierce, 512 F. Supp. 1321, 1981 U.S. Dist. LEXIS 11996 (W.D. Va. 1981).

    Misappropriating trade secrets in Virginia. —

    In plaintiff’s misappropriation of trade secrets action, the court had personal jurisdiction over defendant because plaintiff alleged that defendant caused tortious injury by the act of misappropriating trade secrets in Virginia, and, thus, the facts of the case fell within subdivision A 4 of § 8.01-328.1 ; moreover, defendant purposefully availed itself of Virginia because it entered into three successive contracts with plaintiff to attend annual conferences of plaintiff as a client sponsoree, it entered into three more successive contracts to act as an exhibitor at annual conferences of plaintiff, and it had contracted with two Virginia-based entities. Datatel, Inc. v. Rose & Tuck, LLC, No. 05-495, 2005 U.S. Dist. LEXIS 29704 (E.D. Va. June 17, 2005).

    Internet postings available in Virginia. —

    Posting information on website accessible to readers in Virginia, does not subject defendants to personal jurisdictions in Virginia unless the Internet postings manifest an intent to target and focus on Virginia readers. Young v. New Haven Advocate, 315 F.3d 256, 2002 U.S. App. LEXIS 25535 (4th Cir. 2002), cert. denied, 538 U.S. 1035, 123 S. Ct. 2092, 155 L. Ed. 2d 1065, 2003 U.S. LEXIS 3743 (2003) (reversing Young v. New Haven Advocate, 184 F. Supp. 2d 498, 2001 U.S. Dist. LEXIS 23492 (W.D. Va. 2001)).

    Transmission of “spam” to and through an ISP’s Virginia computers. —

    Although defendants’ conduct may have originated in Michigan, under Virginia’s long-arm statute defendants’ transmission of unsolicited bulk e-mail (UBE or spam) to and through an Internet service provider’s (ISPs) Virginia computers constituted a “use” of those servers which in turn constituted an act within the Commonwealth. Thus, because a substantial portion of the actions giving rise to the ISP’s claims occurred in Virginia and a substantial part of the property harmed by these actions occurred in Virginia, venue was proper under 28 U.S.C.S. § 1391(b)(2). Verizon Online Servs. v. Ralsky, 203 F. Supp. 2d 601, 2002 U.S. Dist. LEXIS 10224 (E.D. Va. 2002).

    Union organizers who allegedly sent misleading e-mails to employees of an Internet service access provider were subject to personal jurisdiction under subdivision A 3 and subsection B of § 8.01-328.1 and subdivision 4 of § 18.2-152.2 because the organizers sent the allegedly tortious e-mail messages to Virginia computers over Virginia servers, thereby causing the Virginia computers and networks to perform functions for which they were generally designed. Aitken v. Communs. Workers of Am., 496 F. Supp. 2d 653, 2007 U.S. Dist. LEXIS 51434 (E.D. Va. 2007).

    Use of Internet as sufficient act. —

    The use of an AOL account, a Virginia-based service, to post allegedly defamatory messages to an interactive newsgroup was a sufficient act to satisfy subdivision A 3 of this section. Bochan v. La Fontaine, 68 F. Supp. 2d 692, 1999 U.S. Dist. LEXIS 8253 (E.D. Va. 1999).

    Where defendants used a commercial entity to post press releases on the Internet, subdivision A 3 applied to defendants. But for the Internet service providers and users present in Virginia, the alleged tort of defamation would not have occurred in Virginia. The conspiracy and tortious interference counts, to some degree, also required contacts in Virginia. Numerous investors and brokers were located in Virginia, and the presence of facilities in Virginia was necessary for those individuals to access the press releases. In addition, because plaintiff company was located in Virginia, the firm absorbed the harm there, which was a necessary element to each of its claims. Telco Communications Group, Inc. v. An Apple a Day, Inc., 977 F. Supp. 404, 1997 U.S. Dist. LEXIS 14543 (E.D. Va. 1997).

    No act or omission found. —

    In a bar applicant’s defamation suit, a district court did not have personal jurisdiction over an out-of-state resident who did not commit any torts in the state where: (1) the out-of-state resident did not write an allegedly defamatory letter that was sent to the state board of bar examiners regarding the applicant, and (2) the conduct of her employer, an attorney testing agency, invalidating the applicant’s test score, could not be imputed to the out-of-state resident simply due to her status as an employee. Shestul v. Moeser, 344 F. Supp. 2d 946, 2004 U.S. Dist. LEXIS 23480 (E.D. Va. 2004).

    Plaintiff alleged that the injury was caused in Virginia, because defendants’ misconduct was aimed at plaintiff in Virginia for eight years now; however, defendants alleged the only communications with Virginia consisted of communications with plaintiff’s counsel at or about the time defendants received plaintiffs’ complaint. Additionally, defendant individual pleaded he never traveled to Virginia, nor executed any contracts in Virginia, nor sent any documents directly to plaintiff in Virginia, by mail, facsimile, email, or otherwise; plaintiff could not establish that defendants caused tortious injury while present in the Commonwealth of Virginia. Willis v. Clark, No. 3:05CV325, 2005 U.S. Dist. LEXIS 25877 (E.D. Va. Oct. 31, 2005).

    Plaintiffs did not allege that the injury forming the basis of the suit occurred as a result of any act or omission of manufacturer in Virginia; thus, the manufacturer did not cause a tortious injury by an act or omission in the Commonwealth and the court could not exercise jurisdiction over the manufacturer pursuant to subdivision A 3 of § 8.01-328.1 .Jones v. Boto Co., 498 F. Supp. 2d 822, 2007 U.S. Dist. LEXIS 51302 (E.D. Va. 2007).

    Defendant’s motion to dismiss for lack of personal jurisdiction was denied because the in-state actions of the representative — stemming from his conduct as Corporate Supply Director of the confederation and General Director of the sister company — should be imputed to defendant in order to confer specific personal jurisdiction. Commercial Metals Co. v. Compania Espanola de Laminacion S.L., 749 F. Supp. 2d 438, 2010 U.S. Dist. LEXIS 119071 (E.D. Va. 2010).

    3.Breach of Warranty.

    Architect’s trips to construction site in Virginia. —

    Defendant architect’s acknowledged trips to a construction site in Virginia were sufficient to confer jurisdiction over him in an action alleging breach of an implied warranty as the result of the collapse of a roof. Darden v. Heck's, Inc., 459 F. Supp. 727, 1978 U.S. Dist. LEXIS 14933 (W.D. Va. 1978).

    4.Acts or Omissions Outside the Commonwealth.

    Purposeful availment. —

    Court lacked personal jurisdiction over defendant, where the tortious conduct was committed entirely in Florida; the fact that plaintiff happened to be based in Virginia, suffered lost franchise royalties due to defendant’s infringement, and notified defendant of those facts, was insufficient to establish that defendant purposefully availed itself of the privileges of conducting activities in Virginia for personal jurisdiction purposes. JTH Tax v. Liberty Servs. Title, Inc., 543 F. Supp. 2d 504, 2008 U.S. Dist. LEXIS 29806 (E.D. Va. 2008).

    Where allegedly defamatory letters, through written in and mailed from Illinois and distributed throughout the country, were nevertheless directed in their intended effect at the activities in Virginia of Virginia residents, plaintiff lived and worked in Virginia, his corporate business was incorporated in Virginia and its officers were residents there, and all the operations, activities and services of plaintiff’s corporate business were conducted in Virginia by plaintiff and other employees, jurisdiction over defendants existed under subdivision A 4. First Am. First, Inc. v. National Ass'n of Bank Women, 802 F.2d 1511, 1986 U.S. App. LEXIS 32117 (4th Cir. 1986).

    Where defendant, located outside Virginia, sent communications to plaintiff located within Virginia, and defendant had never been to Virginia and never committed a tortious act while located within the physical boundaries of Virginia, plaintiff failed to allege facts sufficient to justify the exercise of jurisdiction over defendant under subdivision A 3. Alton v. Wang, 941 F. Supp. 66, 1996 U.S. Dist. LEXIS 15140 (W.D. Va. 1996).

    Letters sent to plaintiff creditors in Virginia by the defendant law firm from outside Virginia, challenging debts, were part of a persistent course of conduct that caused tortious injury to the creditors in Virginia, creating more than sufficient contacts with the forum state. Capital One Bank (USA) N.A. v. Hess Kennedy Chtd., LLC, No. 3:08CV147-HEH, 2008 U.S. Dist. LEXIS 51252 (E.D. Va. July 3, 2008).

    Because defendants conducted their advertising and soliciting over the Internet, which could be accessed by a Virginia resident 24 hours a day, the defendants did so regularly for purpose of the long-arm statute. Accordingly, the court found that posting a Web site advertisement or solicitation constituted a persistent course of conduct, and that the two or three press releases rose to the level of regularly doing or soliciting business, thus satisfying subsection 4. Telco Communications Group, Inc. v. An Apple a Day, Inc., 977 F. Supp. 404, 1997 U.S. Dist. LEXIS 14543 (E.D. Va. 1997).

    Company sufficiently advertises and solicits business within Virginia to establish personal jurisdiction under subdivision A 4 of this section where it uses an interactive website that is accessible in Virginia 24 hours a day to promote and advertise its products, even though no sales are concluded through the site, because the site offers product information, company name and telephone numbers, offers no surcharge for credit card use, and places no geographical limits on purchasers. Bochan v. La Fontaine, 68 F. Supp. 2d 692, 1999 U.S. Dist. LEXIS 8253 (E.D. Va. 1999).

    Conduct of a citizen of India clearly placed him within reach of the Virginia long-arm statute, where his actions in operating his Internet website and selling test preparation materials caused tortious injury to an organization in Virginia through his alleged violations of federal copyright and trademark law. Graduate Mgmt. Admission Council v. Raju, 241 F. Supp. 2d 589, 2003 U.S. Dist. LEXIS 979 (E.D. Va. 2003).

    Subdivision A 4 of § 8.01-328.1 authorized the exercise of personal jurisdiction over the manufacturer; plaintiffs asserted a negligence claim against the manufacturer, alleging the property damage sustained by them was caused by the manufacturer’s negligent act of placing a defective product into the stream of commerce. As it was foreseeable to the manufacturer that a substantial number of its products would ultimately be purchased by consumers in Virginia and the fact that the manufacturer maintained a website through which it made available information and service to consumers in Virginia and throughout the U.S., plaintiffs made a prima facie showing that the manufacturer created a substantial connection with Virginia by actions purposefully directed toward it; plaintiffs also made a prima facie showing that the exercise of personal jurisdiction would not offend traditional notions of fair play and substantial justice. Jones v. Boto Co., 498 F. Supp. 2d 822, 2007 U.S. Dist. LEXIS 51302 (E.D. Va. 2007).

    Substantial revenues in Virginia. —

    In a brand owner’s suit against a manufacturer and a distributor arising from a manufacturing agreement, long-arm jurisdiction existed over the tort claims due to defendants’ substantial revenues in Virginia. Bay Tobacco, LLC v. Bell Quality Tobacco Prods., LLC, 261 F. Supp. 2d 483, 2003 U.S. Dist. LEXIS 12709 (E.D. Va. 2003).

    Online gambling operation. —

    The operator of an online gambling site was subject to personal jurisdiction in a Virginia trademark action, even though all of its operations were conducted in the Dominican Republic, where the defendant’s use of the domain name at issue constituted a tort, the tort was committed outside of Virginia, the tort caused injury in Virginia in that it was likely to cause confusion, mistake, and deception of Virginia consumers, and the defendant engaged in a persistent course of conduct in Virginia through its maintenance of an interactive web site accessible to Virginia consumers 24 hours a day. Alitalia-Linee Aeree Italiane S.p.A. v. casinoalitalia.com, 128 F. Supp. 2d 340, 2001 U.S. Dist. LEXIS 534 (E.D. Va. 2001).

    Where plaintiff alleged that Chinese defendant contacted plaintiff’s Massachusetts publisher, informed the publisher of the dispute between plaintiff and defendant, and threatened to sue the publisher unless he was given a copy of the book to review, although plaintiff may have suffered economic losses as a result of defendant’s actions, plaintiff’s actual injury — the postponement of the publication of plaintiff’s book — occurred in Massachusetts, not Virginia. Accordingly, this court was unable to proceed under subdivision A 4 because the tortious injury did not occur in Virginia. Alton v. Wang, 941 F. Supp. 66, 1996 U.S. Dist. LEXIS 15140 (W.D. Va. 1996).

    Persistent course of conduct not shown. —

    Plaintiff misstated and misapplied the Virginia long-arm statute, stating it permitted the court to exercise jurisdiction over non-residents who caused tortious injury in the Commonwealth by an act or omission outside the Commonwealth if they engaged in any persistent course of conduct; obviously, the persistent course of conduct required by the long-arm statute must occur in, or relate to Virginia and plaintiff failed to allege sufficient activity that occurred in or related to Virginia. Willis v. Clark, No. 3:05CV325, 2005 U.S. Dist. LEXIS 25877 (E.D. Va. Oct. 31, 2005).

    In a case alleging that appellee had illegally used assets from accounts belonging to the decedents to fund parallel litigation in Canada, a motion to dismiss for lack of personal jurisdiction was properly granted because appellee’s contacts did not rise to the level of “persistent course of conduct” under the long-arm statute as her pre-litigation contact consisted of traveling to Virginia, having legal documents drawn up, and returning with her aunt to Canada; her other contact with Virginia was for the limited purpose of litigating a single case; and her contacts with Virginia did not exist for a long or longer than usual time or continuously, and were not enduring or lingering, but consisted of a limited, discrete quantum of activity. Mercer v. MacKinnon, 297 Va. 157 , 823 S.E.2d 252, 2019 Va. LEXIS 9 (2019).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    The cases cited below were decided under corresponding provisions of former law. The terms “long-arm statute,” “this chapter,” “the statute,” and “this section,” as used below, refer to former provisions.

    Purpose. —

    This chapter is a deliberate and conscious effort on the part of the General Assembly of Virginia to assert jurisdiction over nonresident defendants to the extent permissible by the due process clause. It is designed to provide redress in Virginia courts against persons who inflict injuries upon, or incur obligations to, those entitled to legitimate protection. However, in making such provision, the statutes must be fair and reasonable, give to the defendant proper notice of the claim against him, and provide him an adequate and realistic opportunity to appear and be heard in his defense. Carmichael v. Snyder, 209 Va. 451 , 164 S.E.2d 703, 1968 Va. LEXIS 256 (1968).

    The purpose of Virginia’s long-arm statute is to assert jurisdiction over nonresidents who engage in some purposeful activity in this State to the extent permissible under the due process clause. John G. Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736 , 180 S.E.2d 664, 1971 Va. LEXIS 258 (1971); Danville Plywood Corp. v. Plain & Fancy Kitchens, Inc., 218 Va. 533 , 238 S.E.2d 800, 1977 Va. LEXIS 286 (1977).

    Section constitutional. —

    This section does not contravene due process rights guaranteed an individual by the Fourteenth Amendment and the Constitution of Virginia. Snow v. Clark, 263 F. Supp. 66, 1967 U.S. Dist. LEXIS 11007 (W.D. Va. 1967).

    If the exercise of jurisdiction is constitutional, the long-arm statute contemplates it. Ajax Realty Corp. v. J.F. Zook, Inc., 493 F.2d 818, 1972 U.S. App. LEXIS 6325 (4th Cir. 1972), cert. denied, 411 U.S. 966, 93 S. Ct. 2148, 36 L. Ed. 2d 687, 1973 U.S. LEXIS 2527 (1973).

    Extension of jurisdiction limited by due process. —

    The mere fact that the legislature has passed a “long-arm” statute does not permit an extension of jurisdiction beyond due process limits, even if authorized by the legislation. St. Clair v. Righter, 250 F. Supp. 148, 1966 U.S. Dist. LEXIS 6411 (W.D. Va. 1966), disapproved, Beaty v. M. S. Steel Co., 401 F.2d 157, 1968 U.S. App. LEXIS 5708 (4th Cir. 1968).

    Provisions upon which section modeled. —

    This section, with the exception of subdivision A 5, is modeled upon provisions of the Illinois Civil Practice Act and the Uniform Interstate and International Procedure Act. John G. Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736 , 180 S.E.2d 664, 1971 Va. LEXIS 258 (1971).

    This section is clear and specific. Carmichael v. Snyder, 209 Va. 451 , 164 S.E.2d 703, 1968 Va. LEXIS 256 (1968).

    Liberal interpretation. —

    This section was drafted to incorporate the liberal interpretation of “presence within the territorial jurisdiction.” V & V Mining Supply, Inc. v. Matway, 295 F. Supp. 643, 1969 U.S. Dist. LEXIS 8339 (W.D. Va. 1969).

    The Virginia long-arm statutes are remedial only and do not disturb vested rights or create new obligations; they merely supply a remedy to enforce an existing right. Their only purpose and effect were to give to the courts of this Commonwealth jurisdiction to hear and decide a cause of action of the kind described in the statutes against a nonresident defendant. Walke v. Dallas, Inc., 209 Va. 32 , 161 S.E.2d 722, 1968 Va. LEXIS 190 (1968).

    The State has an interest in providing redress for its citizens, particularly in real estate transactions. Carmichael v. Snyder, 209 Va. 451 , 164 S.E.2d 703, 1968 Va. LEXIS 256 (1968).

    This section was intended to be procedural in character. Jackson v. National Linen Serv. Corp., 248 F. Supp. 962, 1965 U.S. Dist. LEXIS 6058 (W.D. Va. 1965); Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1, 1965 U.S. Dist. LEXIS 6157 (W.D. Va. 1965).

    It was not intended to create a new right but rather provide a means by which existing rights might be secured. Jackson v. National Linen Serv. Corp., 248 F. Supp. 962, 1965 U.S. Dist. LEXIS 6058 (W.D. Va. 1965); Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1, 1965 U.S. Dist. LEXIS 6157 (W.D. Va. 1965).

    Hence, it may be applied retroactively. Jackson v. National Linen Serv. Corp., 248 F. Supp. 962, 1965 U.S. Dist. LEXIS 6058 (W.D. Va. 1965); Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1, 1965 U.S. Dist. LEXIS 6157 (W.D. Va. 1965).

    The Virginia long-arm statutes, contained in this chapter, are applicable to the causes of action described in this section which arose before as well as those which arise after the enactment of the statute. Walke v. Dallas, Inc., 209 Va. 32 , 161 S.E.2d 722, 1968 Va. LEXIS 190 (1968).

    The generally accepted rule is that statutes of limitation, or remedial statutes, are not retrospective in their application in the absence of clear legislative intent. But the long-arm statutes are not of the type to which that rule applies. They create no new cause of action and take away no existing right or remedy. They only provide a forum for asserting an existing right, with respect to which the law in force at the time of the trial must prevail. Walke v. Dallas, Inc., 209 Va. 32 , 161 S.E.2d 722, 1968 Va. LEXIS 190 (1968).

    The application of long-arm statutes involves two steps. It is necessary to determine: (1) whether the statute permits service of process on the nonresident defendant, and (2) whether service under the statute violates the due process clause of the federal Constitution. Haynes v. James H. Carr, Inc., 427 F.2d 700, 1970 U.S. App. LEXIS 9051 (4th Cir.), cert. denied, 400 U.S. 942, 91 S. Ct. 238, 27 L. Ed. 2d 245, 1970 U.S. LEXIS 261 (1970).

    The burden of proving jurisdictional facts rests upon the plaintiff. Haynes v. James H. Carr, Inc., 427 F.2d 700, 1970 U.S. App. LEXIS 9051 (4th Cir.), cert. denied, 400 U.S. 942, 91 S. Ct. 238, 27 L. Ed. 2d 245, 1970 U.S. LEXIS 261 (1970).

    Serving process on the Secretary of the Commonwealth is permissible only in the situations outlined by this section. V & V Mining Supply, Inc. v. Matway, 295 F. Supp. 643, 1969 U.S. Dist. LEXIS 8339 (W.D. Va. 1969).

    “Long-arm statute.” —

    A “long-arm statute” is merely legislative approval for the exercise by the courts in that state of their inherent jurisdictional power, at least to the limits set out in the statute. St. Clair v. Righter, 250 F. Supp. 148, 1966 U.S. Dist. LEXIS 6411 (W.D. Va. 1966), disapproved, Beaty v. M. S. Steel Co., 401 F.2d 157, 1968 U.S. App. LEXIS 5708 (4th Cir. 1968).

    Extension of jurisdiction beyond requirement of physical presence. —

    The development of the doctrine extending jurisdiction in personam over nonresidents beyond the requirement of physical presence to include actions arising out of certain activities within the forum state was set forth by the Supreme Court of the United States in International Shoe Co. v. Washington, 1945 U.S. LEXIS 1447, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057 (1945), and McGee v. International Life Ins. Co., 1957 U.S. LEXIS 2, 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957); John G. Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736 , 180 S.E.2d 664, 1971 Va. LEXIS 258 (1971).

    Particulars of section must be satisfied. —

    Since the legislature particularized in this section what it deemed the permissible outer limits for the acquisition of personal jurisdiction consistent with due process, insistence that these particulars be satisfied even in those situations where it could plausibly be argued that a lesser standard would meet due process requirements is a course mandated by legislative judgment. Willis v. Semmes, Bowen & Semmes, 441 F. Supp. 1235, 1977 U.S. Dist. LEXIS 12815 (E.D. Va. 1977).

    Federal court will not assume jurisdiction where state courts would not. —

    A federal court sitting in diversity will not, and in the absence of congressional rule-making cannot, assume in personam jurisdiction where the state courts of the forum state would not. Willis v. Semmes, Bowen & Semmes, 441 F. Supp. 1235, 1977 U.S. Dist. LEXIS 12815 (E.D. Va. 1977).

    Although a defendant may be properly before a federal court in this State on one cause of action where personal jurisdiction has been obtained under the long-arm statute, he need not be subject to jurisdiction on causes of action that do not have the statutorily required nexus with forum activities. Willis v. Semmes, Bowen & Semmes, 441 F. Supp. 1235, 1977 U.S. Dist. LEXIS 12815 (E.D. Va. 1977).

    A federal district court can use this section to extend its jurisdiction over nonresident defendants. Jackson v. National Linen Serv. Corp., 248 F. Supp. 962, 1965 U.S. Dist. LEXIS 6058 (W.D. Va. 1965); Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1, 1965 U.S. Dist. LEXIS 6157 (W.D. Va. 1965); St. Clair v. Righter, 250 F. Supp. 148, 1966 U.S. Dist. LEXIS 6411 (W.D. Va. 1966), disapproved, Beaty v. M. S. Steel Co., 401 F.2d 157, 1968 U.S. App. LEXIS 5708 (4th Cir. 1968).

    A federal district court may constitutionally subject a defendant to in personam jurisdiction under subsection A 5 of this section. Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1, 1965 U.S. Dist. LEXIS 6157 (W.D. Va. 1965).

    Subsection B purports to limit the exercise of personal jurisdiction solely to the precise causes of action which might be sued on individually under subsection A of this section. Elefteriou v. Tanker Archontissa, 443 F.2d 185, 1971 U.S. App. LEXIS 9765 (4th Cir. 1971).

    B.Transacting Business.
    1.In General.

    This section is a single-act statute. —

    Since this section provides “Transacting any business in this Commonwealth,” it is a single-act statute requiring only one transaction in Virginia to confer jurisdiction on its courts. John G. Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736 , 180 S.E.2d 664, 1971 Va. LEXIS 258 (1971).

    Even a single act may constitute a transaction of business in this State under this section. Willis v. Semmes, Bowen & Semmes, 441 F. Supp. 1235, 1977 U.S. Dist. LEXIS 12815 (E.D. Va. 1977).

    A single act by a nonresident which amounts to “transacting business” in Virginia and gives rise to a cause of action may be sufficient to confer jurisdiction upon its courts. Danville Plywood Corp. v. Plain & Fancy Kitchens, Inc., 218 Va. 533 , 238 S.E.2d 800, 1977 Va. LEXIS 286 (1977).

    The significant difference between Virginia’s “long-arm” statute and the “single-act” statutes of other states is that the General Assembly saw fit to separate the causal act from the resulting injury. St. Clair v. Righter, 250 F. Supp. 148, 1966 U.S. Dist. LEXIS 6411 (W.D. Va. 1966), disapproved, Beaty v. M. S. Steel Co., 401 F.2d 157, 1968 U.S. App. LEXIS 5708 (4th Cir. 1968).

    Subsection A 1 discarded the concept of “doing business” as the exclusive test of jurisdiction and provided instead that personal jurisdiction may be asserted over a nonresident if, in person or through an agent, he transacts any business in this State. John G. Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736 , 180 S.E.2d 664, 1971 Va. LEXIS 258 (1971).

    It is not necessary for a defendant to be “doing business” in the technical sense to fall within this section. Jackson v. National Linen Serv. Corp., 248 F. Supp. 962, 1965 U.S. Dist. LEXIS 6058 (W.D. Va. 1965); Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1, 1965 U.S. Dist. LEXIS 6157 (W.D. Va. 1965).

    2.Minimum Contacts.

    Due process requires minimum contacts. —

    Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Carmichael v. Snyder, 209 Va. 451 , 164 S.E.2d 703, 1968 Va. LEXIS 256 (1968); John G. Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736 , 180 S.E.2d 664, 1971 Va. LEXIS 258 (1971).

    Due process requires that a nonresident have certain minimum contacts within the territory of the forum so that the maintenance of the action does not offend traditional notions of fair play and substantial justice. Danville Plywood Corp. v. Plain & Fancy Kitchens, Inc., 218 Va. 533 , 238 S.E.2d 800, 1977 Va. LEXIS 286 (1977).

    Defendant must purposefully avail itself of privilege of conducting activities in forum state. —

    For long-arm service to come within the limits of the due process clause the defendant must have certain minimum contacts with the forum such that the suit does not offend “traditional notions of fair play and substantial justice.” Such contacts are met only when there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Marston v. Gant, 351 F. Supp. 1122, 1972 U.S. Dist. LEXIS 10781 (E.D. Va. 1972).

    It is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. John G. Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736 , 180 S.E.2d 664, 1971 Va. LEXIS 258 (1971).

    Jurisdiction may be exercised where defendant so avails itself. —

    Where a foreign corporation has purposefully availed itself of the privilege of conducting business activities within Virginia and thereby invoked the benefits and protection of the laws of this State, it would not offend traditional notions of fair play and substantial justice to require it to submit to the jurisdiction of the courts of this State. John G. Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736 , 180 S.E.2d 664, 1971 Va. LEXIS 258 (1971).

    Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. Carmichael v. Snyder, 209 Va. 451 , 164 S.E.2d 703, 1968 Va. LEXIS 256 (1968).

    Application of minimum contacts rule will vary with quality and nature of defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privileges of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Danville Plywood Corp. v. Plain & Fancy Kitchens, Inc., 218 Va. 533 , 238 S.E.2d 800, 1977 Va. LEXIS 286 (1977).

    Contact held sufficient to support jurisdiction. —

    The passing of the risk of loss of goods shipped to the nonresident defendant F.O.B. Danville, and technical acceptance of the goods in Virginia by the plaintiff’s delivery to the carrier, were insufficient to establish that the defendant had the necessary minimum contacts to satisfy due process and give jurisdiction to Virginia courts. Danville Plywood Corp. v. Plain & Fancy Kitchens, Inc., 218 Va. 533 , 238 S.E.2d 800, 1977 Va. LEXIS 286 (1977).

    Contact to support jurisdiction in Virginia held insufficient. —

    Where the only connection between a Virginia corporation and an alien corporation was a cancellation agreement which had been entered into in another state, and the alien corporation had no other business in Virginia, there was not sufficient contact to support jurisdiction in Virginia. Davis H. Elliot Co. v. Caribbean Utils. Co., 64 F.R.D. 594, 1974 U.S. Dist. LEXIS 6415 (D. Va. 1974).

    3.What Constitutes Transacting Business.

    Transacting business under subdivision A 1. —

    An alien corporation transacts business in Virginia within the meaning of subdivision A 1 of this section where it sends its technicians and employees to the State for supervision of the installation and modification of equipment purchased from it, its principal officer visits Virginia from time to time to confer with officials of its wholly owned subsidiary, a New York corporation which does business in Virginia, concerning the sale of machinery, and all seven of the subsidiary’s service, plant, and design engineers benefit from previous employment by the alien corporation or other subsidiaries in their present pension plans with the subsidiary corporation. Olin Mathieson Chem. Corp. v. Molins Orgs., Ltd., 261 F. Supp. 436, 1966 U.S. Dist. LEXIS 10281 (E.D. Va. 1966).

    Contract made in Virginia but performed elsewhere. —

    Where a contract is made in the State of Virginia, but substantially all of the performance under the terms of the contract takes place outside the State of Virginia, service of process and jurisdiction lie pursuant to this section for breach of such contract. I.T. Sales, Inc. v. Dry, 222 Va. 6 , 278 S.E.2d 789, 1981 Va. LEXIS 262 (1981).

    C.Contracting to Supply Services or Things.

    Unpaid wage claim. —

    A plaintiff’s claim that he was not paid the full amount of the wages due and owing him when he was removed from a ship may provide a basis for the assertion of personal jurisdiction against the foreign owner of the vessel, since federal law requires that a seaman discharged by a vessel making foreign voyages be paid his wages “within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged, whichever first happens.” An employment relationship is a contractual relationship and the failure to make payment in Virginia, as required by statute (if not by the provisions of the contract), would give rise to a cause of action arising from the owner’s contracting to supply services or things in Virginia within the meaning of subdivision A 2 of this section. Of course, whether personal jurisdiction lies depends upon whether the unpaid wage claim was asserted in good faith. Elefteriou v. Tanker Archontissa, 443 F.2d 185, 1971 U.S. App. LEXIS 9765 (4th Cir. 1971).

    D.Tortious Injury.
    1.Acts or Omissions in Commonwealth.

    Patent infringement action. —

    The court cannot hold that an alien company should be required to answer to suit for patent infringement in any district where its goods are resold after it has sold to exporters with knowledge that the goods will be shipped to the United States, within the context of subdivision A 3 of this section, in the absence of affirmative acts tending to induce infringement. Marston v. Gant, 351 F. Supp. 1122, 1972 U.S. Dist. LEXIS 10781 (E.D. Va. 1972).

    2.Acts or Omissions Outside Commonwealth.

    Codification of due process limits on long-arm jurisdiction. —

    The “persistent course of conduct” and “substantial revenue” provisions of subdivision A 4 of this section seek to codify in terms what the Virginia legislators took to be the due process limits on long-arm jurisdiction. Marston v. Gant, 351 F. Supp. 1122, 1972 U.S. Dist. LEXIS 10781 (E.D. Va. 1972).

    Minimum proof of “persistent course of conduct.” —

    At a minimum, the plaintiff must prove that the defendant maintained some sort of ongoing interactions with the forum state in order to show the defendant is engaged in a “persistent course of conduct” in a particular factual situation. Willis v. Semmes, Bowen & Semmes, 441 F. Supp. 1235, 1977 U.S. Dist. LEXIS 12815 (E.D. Va. 1977).

    “Tortious injury” a misnomer. —

    This section refers to the causing of a “tortious injury,” which is something of a misnomer, since whether or not the injury was tortious is generally the fact at issue. St. Clair v. Righter, 250 F. Supp. 148, 1966 U.S. Dist. LEXIS 6411 (W.D. Va. 1966), disapproved, Beaty v. M. S. Steel Co., 401 F.2d 157, 1968 U.S. App. LEXIS 5708 (4th Cir. 1968).

    Construction of subdivision A 4. —

    The language of subdivision A 4 of this section must be interpreted with relation to the statute as a whole. St. Clair v. Righter, 250 F. Supp. 148, 1966 U.S. Dist. LEXIS 6411 (W.D. Va. 1966), disapproved, Beaty v. M. S. Steel Co., 401 F.2d 157, 1968 U.S. App. LEXIS 5708 (4th Cir. 1968).

    Subdivision A 4 of this section must be interpreted with a view toward extending personal jurisdiction, rather than restricting it. Marston v. Gant, 351 F. Supp. 1122, 1972 U.S. Dist. LEXIS 10781 (E.D. Va. 1972).

    Subdivision A 4 is considerably more restrictive than subdivision A 3 of this section. St. Clair v. Righter, 250 F. Supp. 148, 1966 U.S. Dist. LEXIS 6411 (W.D. Va. 1966), disapproved, Beaty v. M. S. Steel Co., 401 F.2d 157, 1968 U.S. App. LEXIS 5708 (4th Cir. 1968).

    And does not include causal act occurring outside State. —

    Where the alleged tortious injury occurred upon the publication of the alleged libel within Virginia, but was caused by the act of writing and mailing the letters outside Virginia, the acts do not fall within the terms of subsection A 4. St. Clair v. Righter, 250 F. Supp. 148, 1966 U.S. Dist. LEXIS 6411 (W.D. Va. 1966), disapproved, Beaty v. M. S. Steel Co., 401 F.2d 157, 1968 U.S. App. LEXIS 5708 (4th Cir. 1968).

    Single-act interpretation precluded by legislature. —

    The legislature purposely omitted the adjective “tortious” when referring to the act or omission in subdivision A 4 of this section, and included it with reference to the resulting injury, in order to make certain that a single-act interpretation would be precluded. St. Clair v. Righter, 250 F. Supp. 148, 1966 U.S. Dist. LEXIS 6411 (W.D. Va. 1966), disapproved, Beaty v. M. S. Steel Co., 401 F.2d 157, 1968 U.S. App. LEXIS 5708 (4th Cir. 1968).

    The sale of goods to exporters in Japan, with knowledge that they would be eventually resold throughout the entire United States, is sufficient for the court to infer that the defendant purposefully availed itself of Virginia’s protection under subdivision A 4 of this section if the revenue it derives from the ultimate sales in Virginia is of a sufficient amount as to represent “substantial revenue.” Marston v. Gant, 351 F. Supp. 1122, 1972 U.S. Dist. LEXIS 10781 (E.D. Va. 1972).

    Employee salaries held not substantial revenue. —

    Substituted service upon nonresident defendants was not permitted under this section in that the alleged nexus between the defendants’ employer’s operations in Virginia and the salaries and benefits paid to defendants by the employer was far too tenuous to suggest that the defendants themselves derived substantial revenue from services rendered in Virginia. Causey v. Pan Am. World Airways, Inc., 66 F.R.D. 392, 1975 U.S. Dist. LEXIS 13127 (E.D. Va. 1975).

    3.Breach of Warranty.

    Subdivision A 5 of this section is constitutional, as the use of the words “regularly,” “persistent,” and “substantial,” places it well within the permissible limits of due process. Jackson v. National Linen Serv. Corp., 248 F. Supp. 962, 1965 U.S. Dist. LEXIS 6058 (W.D. Va. 1965); Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1, 1965 U.S. Dist. LEXIS 6157 (W.D. Va. 1965).

    Assertion of jurisdiction under subdivision A 5 does not offend the due process clause of the Fourteenth Amendment. Ajax Realty Corp. v. J.F. Zook, Inc., 493 F.2d 818, 1972 U.S. App. LEXIS 6325 (4th Cir. 1972), cert. denied, 411 U.S. 966, 93 S. Ct. 2148, 36 L. Ed. 2d 687, 1973 U.S. LEXIS 2527 (1973).

    It is only necessary that a defendant be engaged in some persistent course of conduct, or derive substantial revenue from goods used in this State, to fall within this section. Jackson v. National Linen Serv. Corp., 248 F. Supp. 962, 1965 U.S. Dist. LEXIS 6058 (W.D. Va. 1965); Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1, 1965 U.S. Dist. LEXIS 6157 (W.D. Va. 1965).

    There is a trend toward liberal construction of “substantial revenue” provisions. Ajax Realty Corp. v. J.F. Zook, Inc., 493 F.2d 818, 1972 U.S. App. LEXIS 6325 (4th Cir. 1972), cert. denied, 411 U.S. 966, 93 S. Ct. 2148, 36 L. Ed. 2d 687, 1973 U.S. LEXIS 2527 (1973).

    It is difficult to identify an absolute amount which ipso facto must be deemed “substantial.” Ajax Realty Corp. v. J.F. Zook, Inc., 493 F.2d 818, 1972 U.S. App. LEXIS 6325 (4th Cir. 1972), cert. denied, 411 U.S. 966, 93 S. Ct. 2148, 36 L. Ed. 2d 687, 1973 U.S. LEXIS 2527 (1973).

    Percentage of total sales is only a factor to be considered. —

    Although percentage of total sales may be a factor to be considered in determining the question of “substantial revenue” under subdivision A 5, it cannot be dispositive, for a small percentage of the sales of a corporate giant may indeed prove substantial in an absolute sense. Ajax Realty Corp. v. J.F. Zook, Inc., 493 F.2d 818, 1972 U.S. App. LEXIS 6325 (4th Cir. 1972), cert. denied, 411 U.S. 966, 93 S. Ct. 2148, 36 L. Ed. 2d 687, 1973 U.S. LEXIS 2527 (1973).

    Revenue constituting “substantial revenue.” —

    Although defendant did not regularly do or solicit business, or pursue a persistent course of conduct, in Virginia, the $37,000 which it derived from plaintiff’s use of the goods in Virginia constitutes “substantial revenue” for purposes of subdivision A 5. Ajax Realty Corp. v. J.F. Zook, Inc., 493 F.2d 818, 1972 U.S. App. LEXIS 6325 (4th Cir. 1972), cert. denied, 411 U.S. 966, 93 S. Ct. 2148, 36 L. Ed. 2d 687, 1973 U.S. LEXIS 2527 (1973).

    Substantial revenue was derived from the sale of lawn movers in Virginia where the defendant manufacturer engaged in a persistent course of conduct by shipping the mowers directly to purchasers in Virginia. Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1, 1965 U.S. Dist. LEXIS 6157 (W.D. Va. 1965).

    Although $25,000 was a small amount when compared to defendant’s total volume of sales of five million dollars, it was substantial enough to satisfy this section. Jackson v. National Linen Serv. Corp., 248 F. Supp. 962, 1965 U.S. Dist. LEXIS 6058 (W.D. Va. 1965).

    Where defendant enjoyed a sufficient financial benefit from the use of its goods in Virginia, it would not be unreasonable to hold that it must account in Virginia for alleged defects, at least where the statute requires, and defendant ultimately had, a reasonable expectation that the goods would be used in Virginia. Ajax Realty Corp. v. J.F. Zook, Inc., 493 F.2d 818, 1972 U.S. App. LEXIS 6325 (4th Cir. 1972), cert. denied, 411 U.S. 966, 93 S. Ct. 2148, 36 L. Ed. 2d 687, 1973 U.S. LEXIS 2527 (1973).

    E.Real Property in Virginia.

    Scope of jurisdiction generally. —

    This section gives the court the right to exercise personal jurisdiction over a person who acts directly as to a cause of action arising from that person having an interest in, using, or possessing real property in Virginia. Significantly, the statute refers to a cause of action which arises from a person having an interest in real estate. Carmichael v. Snyder, 209 Va. 451 , 164 S.E.2d 703, 1968 Va. LEXIS 256 (1968).

    Jurisdiction is grounded on the relationship existing between the defendant and the realty out of which the cause of action arose at the time the cause of action arose. Carmichael v. Snyder, 209 Va. 451 , 164 S.E.2d 703, 1968 Va. LEXIS 256 (1968).

    Controversies relating to property. —

    In controversies relating to property which is within the jurisdiction of the court, where personal service of process within the State is impossible or is for any reason impracticable, a method of constructive or substituted service may be provided for; and with a reasonable exercise of such legislative discretion, the courts will not assume to interfere. Carmichael v. Snyder, 209 Va. 451 , 164 S.E.2d 703, 1968 Va. LEXIS 256 (1968).

    A contract which involves an interest in land has a substantial connection with the State. Carmichael v. Snyder, 209 Va. 451 , 164 S.E.2d 703, 1968 Va. LEXIS 256 (1968).

    This section gives jurisdiction at the time of, and because of, the execution of a contract which vested in defendant an interest in land. It was then that defendant “acted directly.” Carmichael v. Snyder, 209 Va. 451 , 164 S.E.2d 703, 1968 Va. LEXIS 256 (1968).

    Defendant having rendered himself amenable by virtue of acting directly as to a cause of action arising from his having an interest in real estate in Virginia, plaintiffs could maintain an action in personam to collect the amount due them under contract. Carmichael v. Snyder, 209 Va. 451 , 164 S.E.2d 703, 1968 Va. LEXIS 256 (1968).

    The fact that defendants no longer have an interest in the realty and no longer live in this State is immaterial. Carmichael v. Snyder, 209 Va. 451 , 164 S.E.2d 703, 1968 Va. LEXIS 256 (1968).

    The fact that plaintiffs sold the property and sued for damages, rather than bringing a suit for specific performance, or a suit for the purchase price of the real estate, did not thereby divest the Virginia court of jurisdiction over defendant. Carmichael v. Snyder, 209 Va. 451 , 164 S.E.2d 703, 1968 Va. LEXIS 256 (1968).

    CIRCUIT COURT OPINIONS

    When personal jurisdiction over person may be exercised. —

    Although Virginia’s long-arm statute was one method of obtaining personal jurisdiction over a defendant, other laws provided additional circumstances under which the Commonwealth could exercise personal jurisdiction over a nonresident, and, thus, administrative child support order entered against the mother was not void on the ground that personal jurisdiction over the mother was obtained by a method under than the Virginia long-arm statute. Div. of Child Support Enforcement v. Lee, 58 Va. Cir. 338, 2002 Va. Cir. LEXIS 151 (Roanoke Mar. 12, 2002).

    Canadian manufacturer was not subject to specific or general personal jurisdiction under Virginia’s Long Arm Statute in a products liability action filed against it, as sales of its product occurred in Canada at their customers’ requests and insufficient evidence of its purposeful availment, overall fairness, and substantial minimum contacts was presented; further, despite the fact that it had derived a substantial revenue from sales made within the Commonwealth, the manufacturer did not advertise or otherwise solicit business in Virginia, nor did it maintain a public website. Sutherland v. Robby Thruston Carpentry, Inc., 68 Va. Cir. 43, 2005 Va. Cir. LEXIS 248 (Richmond Mar. 4, 2005).

    General appearance. —

    As a Tennessee receiver purposely availed himself of the privilege of invoking a Virginia court’s authority to enjoin or stay legal proceedings in that court involving an insurer that was in receivership in Tennessee, the receiver had submitted himself to the jurisdiction of the Virginia court. Jones v. Caldwell, 61 Va. Cir. 408, 2003 Va. Cir. LEXIS 220 (Winchester Mar. 31, 2003).

    Although defendant filed a plea that plaintiff corporation was barred from pursuing an action against her in Virginia for lack of personal jurisdiction pursuant to the long-arm statute, defendant waived any objections she had to personal jurisdiction by appearing both specially and generally. Caravelle Mfg. Corp. v. Ultra Wash L.L.C., 71 Va. Cir. 63, 2006 Va. Cir. LEXIS 113 (Fairfax County May 2, 2006).

    When an alleged injured party sued the out of state manufacturer of a “captain’s chair” on his boat for negligence, as well as suing the manufacturer of the boat, and the boat manufacturer filed a third-party claim against the chair manufacturer, to which the chair manufacturer filed a responsive pleading, the chair manufacturer’s argument that long-arm jurisdiction could not be asserted over it was waived because the responsive pleadings it filed constituted a general appearance, as they did not challenge the trial court’s exercise of jurisdiction over it. Gilmore v. Wise Co., 72 Va. Cir. 353, 2006 Va. Cir. LEXIS 270 (Portsmouth Dec. 13, 2006).

    Forum selection. —

    Lessor pleaded a prima facie case sufficient to establish personal jurisdiction because the lessee was bound by the forum-selection provision in the rental agreement; the proximity to the lessee’s other signatures on the rental agreement and reference to an extension of credit weighed in favor of finding that the forum-selection provision applied to the personal guaranty, and the rental agreement contained no language indicating that the guaranty was a separate agreement. Power Mech., Inc. v. McClary Trucking, Inc., 96 Va. Cir. 275, 2017 Va. Cir. LEXIS 162 (Newport News Aug. 24, 2017).

    Car dealership selling cars over the internet could have foreseen being haled into court outside of their homestate. —

    There was in personam jurisdiction over defendants because, as commercial sellers of automobiles on a well-known, national auction website, defendants car dealership and its agents must have been able to foresee the possibility of being haled into court outside their home state. Several factors militated in favor of finding personal jurisdiction over defendants: (1) defendants were commercial sellers of automobiles who, at the time the car was sold, were represented on eBay as “power sellers” with 213 transactions; (2) at the time of the transaction, defendants represented that they had local, national, and international eBay customers; (3) defendants foresaw potential transactions with non-resident buyers based on the “Winning Bidder” email it sent to the buyer; and (4) the product was an automobile, purchased to be delivered to and driven in Virginia, the recipient state. Malcolm v. Esposito, 63 Va. Cir. 440, 2003 Va. Cir. LEXIS 257 (Fairfax County Dec. 12, 2003).

    Use of Internet to sell cars. —

    Trial court did not have long-arm personal jurisdiction over the seller and the corporation on the car buyer’s claims against them based on the sale of a vehicle to the car buyer that was conducted through an Internet auction website; the car seller required the car buyer to pick up the car in Illinois, and the car seller and corporation did not manifest an intent to target and focus on Virginia buyers, which meant that the trial court did not have personal jurisdiction over the seller and the corporation, who were non-residents of Virginia. Irving v. Wagner Zone, Inc., 68 Va. Cir. 127, 2005 Va. Cir. LEXIS 116 (Fairfax County June 6, 2005).

    Long-arm jurisdiction. —

    Court had long-arm jurisdiction over a Florida resident who had retained a Virginia law firm to represent him regarding an estate undergoing probate in a Virginia court and could properly hear the firm’s action to collect on the retainer agreement between the parties; obtaining and acting through counsel in a Virginia court constituted “doing business within the commonwealth” within the meaning of this section. Pearson & Pearson, P.C. v. Morris, 54 Va. Cir. 153, 2000 Va. Cir. LEXIS 561 (Fauquier County 2000).

    No exemption for foreign municipalities. —

    Long-arm statute, which granted a trial court jurisdiction over a city, its mayor, and its former mayor in a company’s breach of contract action, did not contain any exemption applicable to foreign municipalities; therefore, neither the legislature nor the courts of the Commonwealth contemplate that principles of comity mandate the dismissal of actions filed against foreign municipalities. Alcalde & Fay, Ltd. v. City of Atl. City, 2008 Va. Cir. LEXIS 20 (Arlington County Mar. 24, 2008).

    Process quashed for lack of jurisdiction. —

    Where dairy business headquartered in Colorado executed contract with Virginia-based corporate recruiter in Colorado and dairy business did not perform any part of parties’ contract in Virginia, have an office in Virginia, or personally transact business in Virginia, its motion to quash Virginia long-arm service of process after it allegedly did not pay when corporate recruiter provided it with an employee would be granted. Prolinks v. Horizon Organic Dairy, 58 Va. Cir. 17, 2001 Va. Cir. LEXIS 363 (Fairfax County July 9, 2001).

    When an attorney from another state was alleged to have conspired with relatives of an inmate to liquidate brokerage accounts and other assets belonging to the inmate by preparing legal documents to facilitate the liquidations, the attorney was properly subject to long-arm jurisdiction in Virginia under subdivision A 4 of § 8.01-328.1 , as his co-conspirators’ contacts with Virginia were imputed against him because co-conspirators were agents for each other. Siu Ming Hong v. Chum Moon Tong, 61 Va. Cir. 439, 2003 Va. Cir. LEXIS 125 (Richmond Apr. 9, 2003).

    No personal jurisdiction found over former husband in action to register foreign support order. —

    Former wife was not permitted to register a purported foreign support order because the circuit court lacked personal jurisdiction over her former husband given that the husband was not personally served in Virginia, he objected to jurisdiction there, he had never resided in Virginia, and he did not fall within any of the categories of the Uniform Interstate Family Support Act, § 20-88.32 et seq., or Virginia’s long-arm statute, § 8.01-328.1 , that would have allowed the exercise of jurisdiction over him. Rind v. Cafaro, 59 Va. Cir. 167, 2002 Va. Cir. LEXIS 336 (Norfolk June 5, 2002).

    Divorce action. —

    Where the defendant in a divorce suit is a nonresident, the complaint or other pleadings in the divorce suit must allege, at a minimum, a connection to Virginia that is recognized by Virginia’s long-arm statute, § 8.01-328.1 ; where neither the complaint nor depositions established the wife’s minimum contacts with Virginia, a divorce case was returned to the commissioner for additional evidence on the basis of the jurisdictional allegations. Dumas v. Dumas, 59 Va. Cir. 269, 2002 Va. Cir. LEXIS 379 (Suffolk July 17, 2002).

    Because a wife met the residency requirements of § 20-97 , and because the court could exercise in personam jurisdiction over the husband in the wife’s divorce proceeding under subdivision A 9 of § 8.01-328.1 upon proof of proper service of process upon him, the husband’s motion contesting jurisdiction was denied. Guaglione v. Guaglione, 73 Va. Cir. 464, 2007 Va. Cir. LEXIS 109 (Fairfax County July 30, 2007).

    Husband was not entitled to dismissal of the wife’s dissolution action because the Hawaiian court did not need to obtain personal jurisdiction over the wife to adjudicate the parties’ marital status in the husband’s dissolution action, the Virginia court had long-arm jurisdiction over the husband inasmuch as he maintained a matrimonial domicile in Virginia at the time of the parties’ separation, and, pursuant to the divisible divorce doctrine, the court could give Full Faith and Credit to the Hawaiian court’s grant of a divorce, while retaining jurisdiction over the issues of support and equitable distribution. Sullivan v. Sullivan, 100 Va. Cir. 226, 2018 Va. Cir. LEXIS 614 (Chesapeake Oct. 18, 2018).

    Will challenge proceedings. —

    This section conferred jurisdiction over beneficiaries in a will challenge proceeding because the beneficiaries’ purposeful actions directed toward Virginia in reaching agreement with plaintiff and carried out through their agent in Virginia were sufficient to confer jurisdiction over them. Eldridge v. Sloper, 75 Va. Cir. 513, 2007 Va. Cir. LEXIS 253 (Alexandria Dec. 27, 2007).

    Minimum contacts. —

    The fact that representatives of a corporation, who were defendants in a suit alleging fraud, conversion, conspiracy and breach of contract, were physically present elsewhere did not divest the trial court of jurisdiction when fraud was allegedly completed during a meeting in Virginia. IDefense Inc. v. Dick Tracy Group, PLC, 58 Va. Cir. 138, 2002 Va. Cir. LEXIS 36 (Fairfax County Jan. 9, 2002).

    Out-of-state online investment company’s negotiation of a contract with a Virginia Internet service provider via email and telephone calls satisfied the minimum contacts test, as the company knew that work required of the provider would have been done in Virginia and not in California; thus, the court had personal jurisdiction over the out-of-state company under subdivision A 1 of § 8.01-328.1 .Am. Online, Inc. v. E*Trade Group, Inc., 59 Va. Cir. 48, 2002 Va. Cir. LEXIS 117 (Loudoun County Apr. 3, 2002).

    Where two companies were parties to a Montana forum selection clause, the companies’ Virginia lawsuits were dismissed though Virginia had jurisdiction due to the companies’ contacts with the state. Ash-Will Farms, L.L.C. v. Leachman Cattle Co., 61 Va. Cir. 165, 2003 Va. Cir. LEXIS 155 (Winchester Feb. 13, 2003).

    Prima facie case sufficient to confer personal jurisdiction was made by a corporation which showed that defendant consumer group obtained donations from a Virginia organization, and had produced and broadcast allegedly defamatory advertisements into Virginia via a West Virginia television station; additionally, the corporation’s showing of a conspiracy between the consumer group and a Virginia resident also gave rise to personal jurisdiction. Massey Energy Co. v. UMW, 69 Va. Cir. 118, 2005 Va. Cir. LEXIS 204 (Fairfax County Oct. 4, 2005).

    In a breach of contract action, the court dismissed a third-party complaint filed against a Maryland resident for lack of jurisdiction in Virginia. The contract was performed in Maryland; a single telephone call made by the Maryland resident into Virginia was insufficient to satisfy Virginia’s long-arm statute. Davey Tree Expert Co. v. Jackson, 69 Va. Cir. 350, 2005 Va. Cir. LEXIS 265 (Fairfax County Dec. 7, 2005).

    Because three Delaware companies and their owner never purposely availed themselves of any Virginia institutions, and could not have reasonably foreseen that they would be haled into a Virginia court as a result of their actions, the court had no personal jurisdiction over them under § 8.01-328.1 or the federal Due Process Clause. PCR Tech. Holdings, L.C. v. Bell Ventures, L.L.C., 79 Va. Cir. 81, 2009 Va. Cir. LEXIS 219 (Chesterfield County June 2, 2009).

    When a worker was injured was transporting goods that were improperly labeled by the non-resident manufacturer which shipped the goods, a Virginia court could not exercise personal jurisdiction over the manufacturer under subdivision A 4 of § 8.01-328.1 , even if it were shown that the manufacturer’s goods were used or consumed in Virginia, because the exercise of personal jurisdiction would not comport with due process, as the manufacturer did not purposefully avail itself of the privilege of doing business there, since (1) no systematic contact with Virginia showed general jurisdiction, and (2) the manufacturer did not purposefully direct any activity toward Virginia, showing specific jurisdiction. Frizzell v. Danieli Corp., 81 Va. Cir. 427, 2010 Va. Cir. LEXIS 202 (Norfolk Dec. 22, 2010).

    Circuit court concluded that defendants’ contacts were sufficient to satisfy subdivision A 1 of the long-arm statute, and that the cause of action arose out of those contacts. Therefore, defendants’ motion to dismiss for lack of personal jurisdiction was denied. Porta v. Marcuse, 104 Va. Cir. 216, 2020 Va. Cir. LEXIS 20 (Chesapeake Feb. 6, 2020).

    Minimum contacts held present. —

    Relatives’ motions to dismiss and quash a lawyer’s declaratory judgment action under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., seeking a declaratory judgment regarding his rights and responsibilities under powers of attorney were denied because the lawyer established a prima facie case of personal jurisdiction over the relatives since the relatives executed the powers of attorney in Virginia and returned to Virginia to meet again with the lawyer; by voluntarily creating a continuing relationship with the lawyer, who maintained an office and performed work for the relatives in Virginia, the relatives purposefully availed themselves of the privilege of conducting activities within the Commonwealth, and the relatives’ contacts with Virginia were such that they should have reasonably anticipated being haled into court in Virginia if any controversies arose under the powers of attorney. Tabet v. Sheban, 83 Va. Cir. 89, 2011 Va. Cir. LEXIS 75 (Fairfax County June 9, 2011).

    Personal jurisdiction existed over nonresident German auto manufacturing corporations through Virginia’s long-arm statute because the employees and agents of the German corporations allegedly entering the Commonwealth of Virginia and participating in the development and dissemination of fraudulent advertising schemes within the Commonwealth, through a subsidiary corporation headquartered in the Commonwealth, to promote the launch of fraudulent vehicles was enough to establish specific jurisdiction over the German corporations. Volkswagen "Clean Diesel" Litig., 100 Va. Cir. 134, 2018 Va. Cir. LEXIS 337 (Fairfax County Oct. 4, 2018).

    Contacts not sufficient. —

    Where Virginia retailer sued New York commercial landlord in Virginia court, court lacked personal jurisdiction over landlord as landlord had not transacted any business in Virginia within the meaning of subdivision A 1 of § 8.01-328.1 . Landlord had not purposefully reached beyond New York to do business with Virginia entity, and preponderance of lease obligations had to be performed in New York. Dollar Tree Stores, Inc. v. Mt. Pac. Realty, LLC, 86 Va. Cir. 206, 2013 Va. Cir. LEXIS 73 (Chesapeake Jan. 29, 2013).

    In a case arising from an alleged breach of an employee recruitment contract, defendant’s contacts with the Commonwealth did not satisfy due process and the Virginia long-arm statute such that the exercise of long-arm jurisdiction was permissible. TalentHunter LLC v. Southern Co. Servs., 87 Va. Cir. 363, 2014 Va. Cir. LEXIS 2 (Fairfax County Jan. 7, 2014).

    Subdivision A 4 of § 8.01-328.1 did not provide for personal jurisdiction over an individual who posted defamatory statements on an online game site where nothing suggested that he regularly did or solicited business, engaged in any other persistent course of conduct or derived substantial revenue from goods used or consumed or services rendered in Virginia. Lucido v. Maxwell, 93 Va. Cir. 415, 2016 Va. Cir. LEXIS 99 (Fairfax County June 6, 2016).

    Jurisdiction was lacking under § 8.01-328.1 where the loan was secured by an out-of-state property, the guaranty consented to jurisdiction in another state, and the guarantor’s designation of an agent through the guaranty had nothing to do with the subject of the lawsuit, i.e., the failure to pay. N.Y. Commer. Bank v. Heritage Green Dev., LLC, 95 Va. Cir. 278, 2017 Va. Cir. LEXIS 39 (Fairfax County Mar. 7, 2017).

    Subdivision A 4 was not satisfied where plaintiff did not claim any tortious injury in the Commonwealth or that the daycare regularly solicited business, engaged in a persistent course of conduct, or derived substantial revenue from goods used or consumed or services rendered in the Commonwealth. McNeal v. Raagu Ventures, LLC, 102 Va. Cir. 310, 2019 Va. Cir. LEXIS 251 (Fairfax County July 10, 2019).

    Tortious acts or omissions outside the Commonwealth. —

    Where the employment contract at issue was entered into in Massachusetts and was to be performed in Massachusetts and Connecticut, and the breach of that contract and the alleged torts, if they occurred, occurred in New England, the Virginia circuit court lacked personal jurisdiction over the employer and its officers. Turnbull v. Desrosier, 61 Va. Cir. 375, 2003 Va. Cir. LEXIS 221 (Winchester Mar. 25, 2003).

    In a suit alleging breach of an employment contract and the commission of various torts, where the breach and the torts, if any, did not occur in Virginia, two incidental telephone calls about the terms of the employment contract, and the employee’s occasionally working out of his Virginia home, were not sufficient contacts to confer in personam jurisdiction over the employer or its officers. Turnbull v. Desrosier, 61 Va. Cir. 375, 2003 Va. Cir. LEXIS 221 (Winchester Mar. 25, 2003).

    Default judgment rendered against a non-resident clinical chemist was rendered void because the Virginia court was without in personam jurisdiction over the chemist who was sued by an estate administrator for negligence and fraud as the chemist committed no tortious act in Virginia; the chemist was no longer associated with the clinical laboratory that allegedly misdiagnosed the decedent’s condition, other than his name still appeared on the laboratory’s letterhead that was used for providing laboratory reports; and the chemist did not have a relationship with Virginia that would cause him to expect to be haled into a court in Virginia. Cordova v. Alper, 64 Va. Cir. 87, 2004 Va. Cir. LEXIS 36 (Fairfax County Feb. 24, 2004).

    New Jersey individual, an officer of a New Jersey limited liability company who traveled to Virginia and signed a contract in Virginia, allegedly making fraudulent representations when he did so, was subject to in personam jurisdiction in Virginia under subdivision A 3 of § 8.01-328.1 and had sufficient minimum contacts with the state, regardless of whether he came to Virginia in his individual or representative capacity. Direct Connect v. Medra Sys., LLC, 80 Va. Cir. 637, 2010 Va. Cir. LEXIS 88 (Fairfax County Aug. 9, 2010).

    When a worker was injured transporting goods that were improperly labeled by the non-resident manufacturer which shipped the goods, a Virginia court could not exercise personal jurisdiction over the manufacturer under subdivision A 4 of § 8.01-328.1 because, while it was alleged that the manufacturer caused injury in Virginia by improperly labeling the manufacturer’s goods, the manufacturer (1) did not regularly do or solicit business in Virginia, (2) engaged in no other persistent conduct there, and (3) derived no substantial revenue from goods used there, as nothing showed the manufacturer’s goods were used in Virginia. Frizzell v. Danieli Corp., 81 Va. Cir. 427, 2010 Va. Cir. LEXIS 202 (Norfolk Dec. 22, 2010).

    Although the business activities in Virginia of out-of-state buyers incident to the purchase of fiber optic cable from a seller in Virginia constituted the transaction of business in the Commonwealth of Virginia, because the seller’s causes of action against the buyers did not arise from the fiber optic cable purchase transactions, sufficient minimum contacts with the Commonwealth did not exist for the exercise of in personam jurisdiction over the buyers under the Due Process Clause. Optical Cable Corp. v. Roehrs, 95 Va. Cir. 178, 2017 Va. Cir. LEXIS 31 (Roanoke County Feb. 10, 2017).

    Specific personal jurisdiction existed in Virginia as to a social media platform based in California, when a complainant in Virginia alleged that publishers in Virginia posted alleged defamatory statements on the platform in California, because the act of alleged negligence by the platform in posting the alleged defamatory statements occurred in California and the complainant alleged damage to reputation in the Commonwealth of Virginia. Nunes v. Twitter, Inc., 103 Va. Cir. 184, 2019 Va. Cir. LEXIS 613 (Henrico County Oct. 2, 2019).

    Personal jurisdiction did not exist in Virginia as to newspaper companies in the United Kingdom when a solicitor in the United Kingdom, who was then living in California, alleged that the solicitor was defamed in the United Kingdom by the companies about matters that occurred in the United Kingdom while the solicitor was practicing law in the United Kingdom. Allegations that the companies had accessed a Virginia database, posted publications on an Internet website, and advertised Virginia businesses on the website did not provide jurisdiction. Mireskandari v. Daily Mail & Gen. Trust PLC, 105 Va. Cir. 370, 2020 Va. Cir. LEXIS 104 (Fairfax County July 27, 2020).

    Acts or omissions in the Commonwealth. —

    Finding in favor of the plaintiff employee was appropriate because jurisdiction was proper as to one defendant employee under subdivision A 1 of § 8.01-328.1 since defendant’s connection to Virginia was not based solely on the fact that he worked for a corporation subject to jurisdiction in Virginia; he had actual contacts with Virginia, personally visited Virginia in the course of his business, subdivision A 4 of § 8.01-328.1 , and he committed torts specifically aimed at a Virginia resident that were related to his contact with Virginia, subdivision A 3 of § 8.01-328.1. Thus, his individual contacts with Virginia were sufficient to subject him to the power of the circuit court. Nathan v. Takeda Pharms. Am., Inc., 83 Va. Cir. 216, 2011 Va. Cir. LEXIS 99 (Fairfax County Aug. 2, 2011).

    As the acts or omissions by defendants through their officers, as alleged by plaintiffs, were committed outside of Virginia, there was no long arm jurisdiction over defendants under subdivision A 3 of § 8.01-328.1 .Idexcel, Inc. v. Lieto, 2012 Va. Cir. LEXIS 13 (Fairfax County Jan. 24, 2012).

    Transacting business. —

    Trial court dismissed the car buyer’s complaint against the seller and corporation, both non-residents of Virginia, as the trial court did not have personal jurisdiction over the seller and the corporation; the sale of the car at issue, through an Internet auction site, was not consummated in Virginia, but was consummated in Illinois where the seller was located, and, thus, the case the car buyer filed against them in Virginia had to be dismissed. Irving v. Wagner Zone, Inc., 68 Va. Cir. 127, 2005 Va. Cir. LEXIS 116 (Fairfax County June 6, 2005).

    Trial court denied the consignment firms’ motions to dismiss for lack of personal jurisdiction in a case where the consignment firms, which were New York corporations, and the manufacturers, which were Virginia corporations, entered into a verbal agreement following a number of phone calls between New York and Virginia that ended with the manufacturers shipping goods to New York and a claim by the manufacturers that the consignment firms breached the agreement by failing to fully pay for the purchased goods; the consignment firms’ individual and collective activities respecting the contractual relationship with the manufacturers constituted “transacting business” within the ambit of this section and, thus, the Virginia trial court had personal jurisdiction over the consignment firms. Azzure Denim, L.L.C. v. E & J Lawrence Corp., 69 Va. Cir. 485, 2006 Va. Cir. LEXIS 91 (Norfolk Feb. 9, 2006).

    Corporation’s motion to dismiss for lack of personal jurisdiction promisees’ action to recover upon promissory notes was granted because the makers signed the notes in their individual capacities, not as the corporation’s agents or managing members; the notes stated that the makers would repay each promisee from the proceeds of the corporation, but neither note stated that the corporation was actually obligated to repay the debt. Bell v. Renaissance at Chartwell, LLC, 2008 Va. Cir. LEXIS 42 (Fairfax County May 7, 2008).

    There was personal jurisdiction under subdivisions A 1 and 2 of § 8.01-328.1 over an investor as the complaint alleged that the investor was a Michigan resident, who reached agreements with a promoter to negotiate and hire musical acts for a festival from the promoter’s home in Virginia, and to secure advertising and promotion for the festival while operating from the Virginia location; the promoter’s requests for admissions were deemed admitted, and provided a stronger basis for jurisdiction. Cassen v. Slater, 75 Va. Cir. 327, 2008 Va. Cir. LEXIS 95 (Chesapeake July 8, 2008).

    When a worker was injured transporting goods that were improperly labeled by the non-resident manufacturer which shipped the goods, a Virginia court could not exercise personal jurisdiction over the manufacturer under subdivision A 1 of § 8.01-328.1 because the manufacturer’s conduct occurred in Ohio, so the manufacturer did not transact business in Virginia. Frizzell v. Danieli Corp., 81 Va. Cir. 427, 2010 Va. Cir. LEXIS 202 (Norfolk Dec. 22, 2010).

    There was insufficient factual basis to establish personal jurisdiction over two defendant employees under subdivision A 4 of § 8.01-328.1 because defendants’ contacts with Virginia were limited to the short time frame of the events surrounding the plaintiff employee’s complaint. Nathan v. Takeda Pharms. Am., Inc., 83 Va. Cir. 216, 2011 Va. Cir. LEXIS 99 (Fairfax County Aug. 2, 2011).

    Defendants’ phone conversations and e-mails with plaintiffs’ employees in Virginia while defendants were in New York and Florida did not rise to the level of “transacting business” in Virginia for purposes of Virginia’s Long arm Statute, § 8.01-328.1 .Idexcel, Inc. v. Lieto, 2012 Va. Cir. LEXIS 13 (Fairfax County Jan. 24, 2012).

    Lessor, a Virginia corporation, pleaded a prima facie case sufficient to establish personal jurisdiction because the lessee signed a personal guaranty for the very purpose of engaging in a business transaction with the lessor, and thus, the lessee transacted business and purposefully established minimum contacts in Virginia; it was foreseeable that the lessee’s conduct and connection with Virginia were such that he should reasonably have anticipated being haled into court there. Power Mech., Inc. v. McClary Trucking, Inc., 96 Va. Cir. 275, 2017 Va. Cir. LEXIS 162 (Newport News Aug. 24, 2017).

    Daycare had not transacted business in Virginia where a check at issue was payable to a title company whose location was unknown, and it was unknown to whom those funds were distributed by the title company. McNeal v. Raagu Ventures, LLC, 102 Va. Cir. 310, 2019 Va. Cir. LEXIS 251 (Fairfax County July 10, 2019).

    Persistent course of conduct. —

    Although a post to the online game site arguably constituted an act under subdivision A 3 of § 8.01-328.1 given the allegations that the servers and Internet bandwidth used to operate the site were in Virginia, exercising personal jurisdiction was improper because there was an insufficient showing that the individual intended to target Virginia or published the statements with a specific intent to reach a Virginia audience. Lucido v. Maxwell, 93 Va. Cir. 415, 2016 Va. Cir. LEXIS 99 (Fairfax County June 6, 2016).

    No act or omission found. —

    There was insufficient factual basis to establish personal jurisdiction over two defendant employees under subdivision A 3 of § 8.01-328.1 because neither defendant committed acts within Virginia. Both wrote their defamatory emails in Illinois and sent the emails to Virginia from Illinois. Nathan v. Takeda Pharms. Am., Inc., 83 Va. Cir. 216, 2011 Va. Cir. LEXIS 99 (Fairfax County Aug. 2, 2011).

    Illustrative case. —

    Because a nonresident defendant medical clinic purposefully availed itself to the privilege of doing business in the Commonwealth of Virginia, and it would not offend traditional notions of fair play and substantial justice to bring that party into the Virginia Courts, its motion to dismiss the suit filed against it by a radiologists’ group concerning a professional services agreement for lack of personal jurisdiction was denied. Reston Radiology Assocs., P.C. v. Open MRI & CT White Marsh, LLC, 75 Va. Cir. 135, 2008 Va. Cir. LEXIS 32 (Fairfax County Mar. 21, 2008).

    Under the Long Arm Statute, the fact that an agent signed a contract in Florida did not mean that it was formed there; the agent was unable to have the benefit of the protection of Virginia law, but then claim that he was not subject to jurisdiction of Virginia courts because he had insufficient contact with Virginia. The agent availed himself of services of a Virginia company to perform work on property in Virginia. Flood Doctor, Inc. v. Winters, 91 Va. Cir. 466, 2016 Va. Cir. LEXIS 9 (Fairfax County Jan. 14, 2016).

    Personal jurisdiction did not exist over physicians in North Carolina when executor of decedent’s estate filed a medical malpractice action in Virginia against the physicians because the physicians did not purposefully avail themselves of the privilege of conducting activities in Virginia as communications — messages, texts, and telephone calls — from the physicians in response to inquiries from the decedent in Virginia before the decedent’s death did not constitute purposeful availment of the privilege of conducting activities within Virginia. Carter v. Szulecki, 2021 Va. Cir. LEXIS 119 (Martinsville May 26, 2021).

    Contracting to provide engineering services. —

    Engineering firm was subject to the personal jurisdiction of the trial court under the transacting business and supplying services provisions of the long-arm statute where: (1) the firm contracted to provide engineering services for a city project, (2) the firm was required to obtain a certificate of authority from the Virginia Board for Architects and Professional Engineers prior to performing engineering services for a Virginia project and to have a Virginia licensed professional engineer to supervise, stamp, and seal all engineering calculations and drawings, (3) while there was no evidence as to whether the firm obtained a proper license, the firm represented that it violated Virginia law and did not obtain such authority, (4) the engineering drawings were signed and sealed by a Virginia Professional Engineer, and (5) the Virginia Professional Engineer was a firm employee. City of Portsmouth v. Buro Happold Consulting Eng'rs, 69 Va. Cir. 397, 2005 Va. Cir. LEXIS 255 (Portsmouth Dec. 22, 2005).

    Contracting to supply services. —

    When a worker was injured transporting goods that were improperly labeled by the non-resident manufacturer which shipped the goods, a Virginia court could not exercise personal jurisdiction over the manufacturer under subdivision A 2 of § 8.01-328.1 because (1) the manufacturer did not supply any services or things in Virginia, and (2) the manufacturer’s goods were sold free on board, with the specified location being the manufacturer’s Ohio facility. Frizzell v. Danieli Corp., 81 Va. Cir. 427, 2010 Va. Cir. LEXIS 202 (Norfolk Dec. 22, 2010).

    Consummation of contract in Virginia. —

    Virginia long-arm statute conferred personal jurisdiction over a coal supplier, although all coal transactions took place outside of Virginia, based on the supplier’s execution of three contracts in Virginia, all of which were governed by Virginia law; the supplier’s solicitation of business with the power company; and the supplier’s meetings in Virginia related to the contracts. Va. Elec. & Power Co. v. Alliance Coal, LLC, 81 Va. Cir. 244, 2010 Va. Cir. LEXIS 132 (Fairfax County Sept. 29, 2010).

    Waiver. —

    Because the non-residents removed a case to federal court, participated in discovery, and then agreed to remand the case to state court, they made a general appearance and thereby waived all rights to contest personal jurisdiction under § 8.01-328.1 and the Due Process Clause of the of the Fourteenth Amendment. Agbey v. Sati, 69 Va. Cir. 330, 2005 Va. Cir. LEXIS 210 (Fairfax County Nov. 23, 2005).

    Issue previously determined. —

    Two counts in the Commonwealth’s complaint against a tobacco company under the Virginia Tobacco Escrow Statute, §§ 3.1-336.1 and 3.1-336.2, were barred by direct estoppel since the issue of personal jurisdiction as to two of the four years for which escrow payments under the act were sought had already been litigated in favor of the tobacco company. However, since the Commonwealth added two additional years for which it sought the escrow payments for in the new suit filed, those claims were separate and independent causes of action that had not been previously litigated and were entitled to be pursued by plaintiff. Commonwealth ex rel. Kilgore v. Patriot Tobacco Co., 71 Va. Cir. 415, 2005 Va. Cir. LEXIS 372 (Richmond June 1, 2005).

    Minimal contacts not found. —

    Alleged actions or communications by defendants’ agents outside of Virginia amounting to tortious interference did not satisfy the minimal contacts necessary to sustain personal jurisdiction over defendants under subdivision A 4 of § 8.01-328.1 , as nothing defendants did in connection with these allegations put them on notice that they might be haled into court in Virginia. Idexcel, Inc. v. Lieto, 2012 Va. Cir. LEXIS 13 (Fairfax County Jan. 24, 2012).

    OPINIONS OF THE ATTORNEY GENERAL

    “Indian country.” —

    Pamunkey Indian reservation does not qualify as “Indian country” for federal purposes, despite federal recognition of the Pamunkey Tribe. Nor does the Mattaponi Indian reservation qualify as “Indian country” for federal purposes, where there has not been federal recognition of that tribe. Thus, Virginia state and local law-enforcement agencies retain the same authority on the Pamunkey and Mattaponi Indian reservations as elsewhere in the Commonwealth to serve legal process, arrest warrants, and subpoenas, and to investigate misdemeanors and felonies. See opinion of Attorney General to Colonel W.S. Flaherty, Superintendent, Department of State Police, 15-049, (6/3/16).

    § 8.01-329. Service of process or notice; service on Secretary of Commonwealth.

    1. When the exercise of personal jurisdiction is authorized by this chapter, service of process or notice may be made in the same manner as is provided for in Chapter 8 (§ 8.01-285 et seq.) in any other case in which personal jurisdiction is exercised over such a party, or process or notice may be served on any agent of such person in the county or city in the Commonwealth in which that agent resides or on the Secretary of the Commonwealth of Virginia, hereinafter referred to in this section as the “Secretary,” who, for this purpose, shall be deemed to be the statutory agent of such person.
    2. When service is to be made on the Secretary, the party or his agent or attorney seeking service shall file an affidavit with the court, stating either (i) that the person to be served is a nonresident or (ii) that, after exercising due diligence, the party seeking service has been unable to locate the person to be served. In either case, such affidavit shall set forth the last known address of the person to be served. For the mailing, by the clerk to the party or his agent or attorney, in accordance with subsection C, of verification of the effective date of service of process, the person filing an affidavit may leave a self-addressed, stamped envelope with the clerk.When the person to be served is a resident, the signature of an attorney, party or agent of the person seeking service on such affidavit shall constitute a certificate by him that process has been delivered to the sheriff or to a disinterested person as permitted by § 8.01-293 for execution and, if the sheriff or disinterested person was unable to execute such service, that the person seeking service has made a bona fide attempt to determine the actual place of abode or location of the person to be served.
    3. Service of such process or notice on the Secretary shall be made by the plaintiff’s, his agent’s or the sheriff’s leaving a copy of the process or notice, together with a copy of the affidavit called for in subsection B and the fee prescribed in § 2.2-409 in the office of the Secretary in the City of Richmond, Virginia. Service of process or notice on the Secretary may be made by mail if such service otherwise meets the requirements of this section. Such service shall be sufficient upon the person to be served and shall be effective on the date when service is made on the Secretary. It shall be the duty of the Secretary to:
      1. Provide a receipt to a party seeking service who serves process on the Secretary by hand delivery or any other method that does not provide a return of service or other means showing the date on which service on the Secretary was accomplished. The party seeking service shall be responsible for filing such receipt in the office of the clerk of the court in which the action is pending;
      2. Forthwith send by certified mail, return receipt requested, to the person or persons to be served at the last known post-office address of such person notice of such service, a copy of the process or notice, and a copy of the affidavit; and
      3. Forthwith file with the papers in the action a certificate of compliance herewith by the Secretary or someone designated by him for that purpose and having knowledge of such compliance.Upon receipt of the certificate of compliance, the clerk of the court shall mail verification of the date the certificate of compliance was filed with the court to the person who filed the affidavit required by subsection B, in the self-addressed, stamped envelope, if any, provided to the clerk at the time of filing of the affidavit. The clerk shall not be required to mail verification unless the self-addressed, stamped envelope has been provided. The time for the person to be served to respond to process sent by the Secretary shall run from the date when the certificate of compliance is filed in the office of the clerk of the court in which the action is pending.
    4. Service of process in actions brought on a warrant or motion for judgment pursuant to § 16.1-79 or 16.1-81 shall be void and of no effect when such service of process is received by the Secretary within ten days of any return day set by the warrant. In such cases, the Secretary shall return the process or notice, the copy of the affidavit, and the prescribed fee to the plaintiff or his agent. A copy of the notice of the rejection shall be sent to the clerk of the court in which the action was filed.
    5. The Secretary shall maintain a record of each notice of service sent to a person for a period of two years. The record maintained by the Secretary shall include the name of the plaintiff or the person seeking service, the name of the person to be served, the date service was received by the Secretary, the date notice of service was forwarded to the person to be served, and the date the certificate of compliance was sent by the Secretary to the appropriate court. The Secretary shall not be required to maintain any other records pursuant to this section.

    History. Code 1950, § 8-813; 1977, c. 617; 1979, c. 31; 1986, c. 388; 1987, cc. 449, 450, 459; 1990, c. 741; 1998, c. 259; 2001, c. 29; 2013, c. 113.

    REVISERS’ NOTE

    Section 8.01-329 is former § 8-81.3 changed such that process under the long-arm provision may be served alternatively rather than in the order stated by the former statute.

    Former § 8-81.4 has been deleted since venue is incorporated in § 8.01-262 , subsection 10.

    Cross references.

    As to service of an administrative support order on an out-of-state obligor if the obligor and obligee maintained a matrimonial domicile within the Commonwealth, see § 63.2-1903 G.

    As to service of notice of administrative support order, see § 63.2-1916. As to service of notice of review of administrative support orders, see § 63.2-1921. As to service on employer of an order for income withholding incident to an administrative support order, see § 63.2-1923. As to service of hearing officer’s decision on appeal of order to withhold in connection with support order, see § 63.2-1929. As to service of decision on administrative hearing on support debt, see § 63.2-1941.

    The 2001 amendments.

    The 2001 amendment by c. 29 added the last sentence in the first paragraph of subsection B, and added the last two sentences in subsection C.

    The 2013 amendments.

    The 2013 amendment by c. 113 rewrote subsection C, and made minor stylistic changes throughout the section.

    Law Review.

    For note, “Obtaining Jurisdiction Over Corporations in Virginia,” see 12 U. Rich. L. Rev. 369 (1978).

    For survey of Virginia law on practice and pleading for the year 1978-1979, see 66 Va. L. Rev. 343 (1980).

    For Survey article, “Civil Practice and Procedure,” see 48 U. Rich. L. Rev. 1 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 4B M.J. Corporations, § 299.

    CASE NOTES

    If the requirements of this section are met, service is complete and conclusive. Basile v. American Filter Serv., Inc., 231 Va. 34 , 340 S.E.2d 800, 1986 Va. LEXIS 160 (1986).

    Limitations of § 8.01-320 A do not apply to subsection A. —

    As an order of publication confers only in rem jurisdiction, application of subsection A of § 8.01-320 to subsection A of this section would destroy the personal jurisdiction conferred by the long-arm statute in § 8.01-328.1 ; moreover, application of subsection A of § 8.01-320 to subsection A of this section would mean that service on the Secretary of the Commonwealth, who need only mail a copy to the person to be served at his last known address, would sustain personal jurisdiction, whereas personal service or substituted service designed to provide actual notice would support only in rem jurisdiction; therefore, the limitations of subsection A of § 8.01-320 do not apply to service of process pursuant to subsection A of this section. Frederick v. Koziol, 727 F. Supp. 1019, 1990 U.S. Dist. LEXIS 241 (E.D. Va. 1990).

    Serving process on the Secretary of the Commonwealth is permissible only in the situations outlined by § 8.01-328.1 .V & V Mining Supply, Inc. v. Matway, 295 F. Supp. 643, 1969 U.S. Dist. LEXIS 8339 (W.D. Va. 1969) (decided under prior law).

    The former version of this section authorizes service on the Secretary of the Commonwealth in a suit against a foreign corporation as to any cause of action arising from its transacting any business in this State. John G. Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736 , 180 S.E.2d 664, 1971 Va. LEXIS 258 (1971) (decided under prior law).

    Service of process on the Secretary of the Commonwealth. —

    Where the exercise of personal jurisdiction was authorized under the long-arm statute, the defendants were amenable to service of process on the Secretary of the Commonwealth, and the action did not have to be dismissed for insufficiency of process. Furmanite Am., Inc. v. Durango Assocs., 662 F. Supp. 348, 1986 U.S. Dist. LEXIS 20498 (E.D. Va. 1986).

    Defendants, served through the Secretary of the Commonwealth of Virginia, in attempt to comply with § 8.01-329 , argued that to be served in this manner, personal jurisdiction had to exist; defendants stated they were non-residents, not subject to personal jurisdiction, and hence, were not properly served. Because the court lacked personal jurisdiction over some of the defendants, service of process on them was insufficient. However, the court had personal jurisdiction over set of defendants, service of process on them through the Secretary was sufficient. Income Tax Sch., Inc. v. Lopez, No. 3:12-CV-334, 2012 U.S. Dist. LEXIS 110779 (E.D. Va. Aug. 7, 2012).

    Plaintiff was not required to serve Secretary of Commonwealth. —

    Subsection A provides for three modes of service — service in the manner of the provisions of Chapter 8, of Title 8.01 (§ 8.01-285 et seq.), service on an agent within the Commonwealth, and service on the Secretary of the Commonwealth; therefore, plaintiff was not required to serve the Secretary of the Commonwealth as the statutory agent of defendant. Rather, since personal jurisdiction was authorized by the long-arm statute, plaintiff was entitled to serve defendant in the manner provided for in Chapter 8. Frederick v. Koziol, 727 F. Supp. 1019, 1990 U.S. Dist. LEXIS 241 (E.D. Va. 1990).

    Default. —

    A defendant’s contention that service of a notice of motion for judgment and a praecipe through the secretary of the commonwealth was improper because none of the bases for personal jurisdiction under this section had been alleged or proven was without merit in that this section plainly provides for service of process to be made upon the secretary of the commonwealth as statutory agent of a person against whom the exercise of personal jurisdiction is authorized under § 8.01-328.1 and the nonresident defendant, by defaulting, was deemed to have admitted the facts alleged by the plaintiffs establishing personal jurisdiction under that statute. Glumina Bank v. D.C. Diamond Corp., 259 Va. 312 , 527 S.E.2d 775, 2000 Va. LEXIS 55 (2000).

    Failure to include the corporate defendant’s zip code does not invalidate the service where the evidence established that omission of the zip code could not result in delivery to any location other than the corporation’s correct address. Basile v. American Filter Serv., Inc., 231 Va. 34 , 340 S.E.2d 800, 1986 Va. LEXIS 160 (1986).

    Secretary’s letter of notice marked “undeliverable.” —

    Insurance company’s suggestion that plaintiff could not rely on service pursuant to this section because the Secretary’s letter of notice was returned marked “undeliverable” and “not at this address” was without merit. Banks v. Leon, 975 F. Supp. 815, 1997 U.S. Dist. LEXIS 13591 (W.D. Va. 1997).

    Substituted service not defective. —

    Substituted service on a corporation was not defective because the language of subsection B of § 8.01-329 reflected a legislative intent to serve process at a single address, not multiple addresses; the record showed that the corporation received mail at the post office box shown on the affidavit for substituted service, that the university mailed correspondence by certified mail, return receipt requested, to the corporation at that address, that both the corporation’s president and general manager received or signed the certification of mailing accompanying correspondence from the university, and that the corporation used both the post office box and the physical address during its contractual relationship with the university. This demonstrated that the address the university identified on the affidavit was reasonably calculated to provide notice to the corporation and was not unconstitutional. Va. Polytechnic Inst. & State Univ. v. Prosper Fin. Inc., 284 Va. 474 , 732 S.E.2d 246, 2012 Va. LEXIS 163 (2012).

    Service by publication insufficient. —

    Divorce court had not obtained personal jurisdiction over a husband where the wife’s service by order of publication in a local newspaper appeared to have had no realistic possibility of ever reaching him, and she did not demonstrate why the most inferior method of service was the best that she could have done. The wife’s ineffectual method of constructive service by order of publication revealed a lack of due diligence rendering the entire exercise inferior to the substituted-service option available under the long-arm statute, § 8.01-293 . Evans v. Evans, 300 Va. 134 , 860 S.E.2d 381, 2021 Va. LEXIS 84 (2021).

    Reading the various service-of-process statutes as a harmonious whole, the legislative intent is unmistakable. Service of process under Virginia statutes involves a cascading series of efforts designed to provide due process by ensuring that the method of notice be reasonably calculated to reach the intended recipient and be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. Consistent with the Commonwealth’s common-law traditions, statutory hierarchies of methods of service, primus personal, deinde substituted, deinde constructive, are best understood not as alternatives but successive methods, ranging from most effective notice to least effective. Evans v. Evans, 300 Va. 134 , 860 S.E.2d 381, 2021 Va. LEXIS 84 (2021).

    Injury through negligence of vacationer. —

    Where the defendant was visiting Virginia on vacation and while attempting to get a fire going in his charcoal grill, allegedly through his negligence, the charcoal lighter fluid exploded and injured plaintiffs, defendant was subject to jurisdiction and service of process under § 8.01-328.1 and this section. Navis v. Henry, 456 F. Supp. 99, 1978 U.S. Dist. LEXIS 17330 (E.D. Va. 1978).

    Service of process was proper under subsection A. —

    Where personal jurisdiction was authorized by § 8.01-328.1 , and defendant was served in the manner provided for in Chapter 8 (§ 8.01-285 et seq.) of this title, namely under subdivision 2 a of § 8.01-296 , service of process was proper under subsection A of this section, and defendant’s motion to dismiss for lack of jurisdiction over the person was denied. Frederick v. Koziol, 727 F. Supp. 1019, 1990 U.S. Dist. LEXIS 241 (E.D. Va. 1990).

    Affidavit held insufficient. —

    Affidavit given in support of long-arm service was insufficient where affidavit filed by plaintiff ’s counsel stated neither of alternatives which former subsection A 1 (see now subsection B) requires, but instead stated that petitioner in cause had been unable to obtain service against above named defendant, and where substantial basis existed for conclusion that plaintiff herself could probably not have given affidavit that she was “unable to locate” person to be served, as required by long-arm statute. Khatchi v. Landmark Restaurant Assocs., 237 Va. 139 , 375 S.E.2d 743, 5 Va. Law Rep. 1501, 1989 Va. LEXIS 26 (1989).

    Affidavit executed to accompany service of process was insufficient under the express terms of subsection B of § 8.01-329 , as the section directs that for valid constructive service on the Secretary of the Commonwealth, the affidavit state the last known address of the person to be served; since the former client’s affidavit did not include that information, the trial court did not obtain jurisdiction over the attorney, a non-resident of Virginia, the judgment entered against her was void, and it should have been set aside. O'Connell v. Bean, 263 Va. 176 , 556 S.E.2d 741, 2002 Va. LEXIS 1 (2002).

    Contact held insufficient to support jurisdiction. —

    Since the only connection between a Virginia corporation and an alien corporation was a cancellation agreement which had been entered into in another state, and the alien corporation had no other business in Virginia, there was not sufficient contact to support jurisdiction in Virginia. Davis H. Elliot Co. v. Caribbean Utils. Co., 64 F.R.D. 594, 1974 U.S. Dist. LEXIS 6415 (D. Va. 1974) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Constructive service. —

    Reviewing court must strictly interpret the statutory requirements governing constructive service. Where a defendant has received personal service of process, irregularity will not defeat a court’s jurisdiction, but if a statute provides for constructive service, the terms of the statute authorizing it must be strictly followed or the service will be invalid and any default judgment based upon it will be void, as even a seemingly cosmetic defect in the required accompanying affidavit may defeat a court’s jurisdiction. Fadel v. El-Khoury, 65 Va. Cir. 201, 2004 Va. Cir. LEXIS 115 (Arlington County July 15, 2004).

    Guarantor’s motion to set aside a default judgment was denied, as constructive service of the motion under this section was properly effectuated, notice of an intent to seek default judgment was not required where such was made by praecipe, and any intrinsic fraud which did occur was insufficient to set the judgment aside under § 8.01-428 ; further, the guarantor’s lack of diligence in checking his mail did not render the address incorrect for purposes of constructive service. Pallett Recycling, LLC v. Case, 70 Va. Cir. 125, 2006 Va. Cir. LEXIS 13 (Rockingham County Jan. 12, 2006).

    Last known address. —

    Parties satisfy the requirement of properly affirming the last known address of a party to be served when process is sent to the address at which the parties regularly corresponded by mail, and the party serving process reasonably could expect that process would reach the defendant at that address. Fadel v. El-Khoury, 65 Va. Cir. 201, 2004 Va. Cir. LEXIS 115 (Arlington County July 15, 2004).

    Judgment was not void for improper service as an affidavit for subsection B of § 8.01-329 service provided a previous address for an investor, but the investor actually received service at that address; while an Internet search might have revealed a current address, the reliability of such a search was not assured. Cassen v. Slater, 75 Va. Cir. 327, 2008 Va. Cir. LEXIS 95 (Chesapeake July 8, 2008).

    Service of process on a New Jersey resident was proper because the requirements of § 8.01-329 were met, regardless of whether the resident received actual notice of the suit. The evidence suggested, however, that the resident received actual notice because he acknowledged service on his limited liability company, made by mail at the same address. Direct Connect v. Medra Sys., LLC, 80 Va. Cir. 637, 2010 Va. Cir. LEXIS 88 (Fairfax County Aug. 9, 2010).

    Default judgment against defendant was void for lack of proper service and adequate notice because plaintiff, which served defendant through the Secretary of the Commonwealth pursuant to § 8.01-329 , did not diligently attempt to serve process on defendant at an address reasonably calculated to afford it with service; plaintiff’s service was at an address that defendant had not used to conduct business in over sixteen years and did not demonstrate sufficient effort to give defendant notice, and plaintiff could not properly claim that the address it used was the last known address for defendant because it did not communicate with defendant at that address during their entire business relationship. 2218815 Ont., Inc. v. DanSources Tech. Servs., 82 Va. Cir. 310, 2011 Va. Cir. LEXIS 24 (Fairfax County Mar. 1, 2011).

    Plaintiff is not required to find the single best address, but only the one last known; therefore, in a medical malpractice case, an argument that the requirement to send service to the “last known post office address” meant that service had to be sent to a home address was rejected. Branch v. Augusta Health Care, Inc., 92 Va. Cir. 126, 2015 Va. Cir. LEXIS 206 (Augusta County Aug. 21, 2015).

    Effective service of process. —

    Where an employee properly served a corporation, under the long arm statute, specifically, subsection C of § 8.01-329 , through the Secretary of the Commonwealth, the service of process was effective when the certificate of compliance was filed with the court and there was no requirement that the defendant so served have actual notice of the litigation. Carson v. Sys. Mgmt. ARTS, 59 Va. Cir. 8, 2002 Va. Cir. LEXIS 123 (Loudoun County Jan. 17, 2002).

    Service of process on the Secretary of the Commonwealth. —

    Plaintiff had not established that he was entitled to equitable relief from a default judgment entered against him in another case because plaintiff had not shown that there was a fraud, accident, or mistake in the earlier judgment. Fact that plaintiff claimed he did not receive notice was not relevant when the record showed that plaintiff had been served by the Secretary of the Commonwealth. Gaskins v. Life Inst. East, Ltd., 71 Va. Cir. 113, 2006 Va. Cir. LEXIS 148 (Henrico County June 8, 2006).

    Circuit court, in light of a United States District Court opinion that a Chinese drywall manufacturer had sufficient minimum contacts with Virginia to support the exercise of personal jurisdiction in Virginia, found that substituted service on the Secretary of the Commonwealth of Virginia constituted effective service on the manufacturer. Dragas Mgmt. Corp. v. Taishan Gypsum Co., 90 Va. Cir. 331, 2015 Va. Cir. LEXIS 73 (Norfolk June 16, 2015).

    Service through the Secretary of the Commonwealth was properly effected, as there was due diligence conducted to locate and serve the corporation’s registered agent, which included seven attempts at personal service and inquiry with the State Corporation Commission on where he could be found, and this effort was sworn to the Secretary of the Commonwealth in an affidavit as required; where due diligence yielded no success in serving a party actively evading process, service of the corporation through the Secretary of the Commonwealth was proper. Lavoie v. Towne Auto Brokers, 2018 Va. Cir. LEXIS 308 (Virginia Beach Sept. 4, 2018).

    Service on Secretary of the Commonwealth held invalid. —

    Where plaintiff served a default judgment on defendant via constructive service of process to the Secretary of the Commonwealth such service was deemed invalid and the court held it lacked personam jurisdiction over defendant when it entered the default judgment, despite plaintiff’s affirmation of defendant’s non-residency, where defendant established via testimony and utility bills that he resided in the State of Virginia throughout the pendency of the action. Fadel v. El-Khoury, 65 Va. Cir. 201, 2004 Va. Cir. LEXIS 115 (Arlington County July 15, 2004).

    Default judgment was set aside because plaintiffs used constructive service through the Secretary of the Commonwealth, defendant was a resident of Virginia and there was no evidence plaintiffs used due diligence to locate him, and it was unclear whether the summons and complaint was attached to their mailing to Secretary. Mack v. Dunleavy, 97 Va. Cir. 84, 2012 Va. Cir. LEXIS 209 (Norfolk 2012).

    Due diligence required. —

    Where the first defendant may have followed the correct procedures under subsection C of § 8.01-329 and failure to effect service of its cross-claim on the second defendant may not been due to the errors of the Secretary of the Commonwealth, the cross-claim was nonetheless dismissed, as subsection C of § 8.01-329 did not abrogate the duty of due diligence under Va. Sup. Ct. R. 3:3 [see now Rule 3:5]; mere compliance with the statute might not in all cases constitute due diligence. Bd. of Dirs. of the Lesner Pointe Condo. on the Chesapeake Bay Ass'n v. Harbour Point Bldg. Corp., 2002 Va. Cir. LEXIS 421 (Virginia Beach Oct. 25, 2002) (see also,).Lesner Pointe Condo. Ass'n v. Harbour Point Bldg. Corp., 61 Va. Cir. 609, 2002 Va. Cir. LEXIS 424 (Virginia Beach Apr. 10, 2002).

    Plaintiff exercised due diligence, as required by § 8.01-329 , in trying to locate defendant to serve her with a complaint, in that the record showed that plaintiff spoke with another employee at defendant’s former place of employment but was unable to learn defendant’s current address, that she unsuccessfully searched for defendant in New York via the Internet, that she attempted to locate a work license in both Virginia and New York under defendant’s former name, and that she consulted an independent investigation company who was unable to locate defendant. Given the information available to plaintiff, she properly provided the Secretary of the Commonwealth with the business address of the former employer, the same address where she had contact with defendant. Robic v. Nicola of London, Inc., 78 Va. Cir. 123, 2009 Va. Cir. LEXIS 10 (Fairfax County Jan. 23, 2009).

    Failure to exercise due diligence. —

    Plaintiffs’ motion for a default judgment was denied, because plaintiffs had not made proper service of process on the two defendants in question under either § 8.01-296 , as it was uncertain whether process was served at defendants usual abode and whether a defendant’s mother was a family member, or under § 8.01-329 , as plaintiffs failed to show that they used due diligence in locating defendants. Samuel I. White, P.C. v. White, 70 Va. Cir. 106, 2005 Va. Cir. LEXIS 275 (Nelson County Dec. 20, 2005).

    Lack of contacts with Virginia. —

    Real estate developer’s action seeking to recover money from an Austrian bank was dismissed, because the court lacked personal jurisdiction over the bank pursuant to Virginia’s long-arm statute, subsection B of § 8.01-329 , based on a lack of contacts with Virginia. Ronsdorf v. Raiffeisenbank Dornbirn Reg. Gen. M.B.H., 63 Va. Cir. 499, 2003 Va. Cir. LEXIS 246 (Roanoke Dec. 30, 2003).

    Affidavit held insufficient. —

    Service of process against a non-resident clinical chemist was quashed because, although the plaintiff served the notice of process on the Secretary of the Commonwealth of Virginia and the Secretary mailed the notice to the out-of-state address for the defendant that the plaintiff provided, the means employed to give notice to the non-resident defendant of the claim against him was intended merely to attempt to satisfy a perceived minimum threshold to effect service of process through the Secretary of the Commonwealth and was utterly lacking of any true intent to inform defendant of the ongoing proceedings against him. Neither the plaintiff nor his counsel could reasonably have expected mail to be actually received by the defendant at the address given, based upon all information then known or reasonably available to them; therefore, the affidavit submitted by counsel listing the address that was given as defendant’s last known post office address failed to comport with the due process notice requirement that is an inherent part of § 8.01-329 . Cordova v. Alper, 64 Va. Cir. 87, 2004 Va. Cir. LEXIS 36 (Fairfax County Feb. 24, 2004).

    Motions to quash service on the statutory agent for two former high school employees were sustained where the addresses listed on the affidavits of mail service were the same addresses to which the sheriff had attempted personal service, the sheriff’s returns indicated that the employees lived in different towns, and thus, mailing the complaints to addresses that were clearly incorrect did not demonstrate due diligence. K.I.D. v. Jones, 2015 Va. Cir. LEXIS 257 (Richmond County Feb. 20, 2015).

    § 8.01-330. Jurisdiction on any other basis authorized.

    A court of this State may exercise jurisdiction on any other basis authorized by law.

    History. Code 1950, § 8-81.5; 1964, c. 331; 1977, c. 617.

    Law Review.

    For note, “Obtaining Jurisdiction Over Corporations in Virginia,” see 12 U. Rich. L. Rev. 369 (1978).

    Michie’s Jurisprudence.

    For related discussion, see 4B M.J. Corporations, § 299.

    Chapter 10. Dockets.

    § 8.01-331. Entry of cases on current dockets.

    When any civil action is commenced in a circuit court, or any such action is removed to such court and the required writ tax and fees thereon paid, the clerk shall enter the same in the civil docket. These dockets may be either (i) a substantial, well-bound loose-leaf book, (ii) a visible card index or (iii) automated data processing media. Each case shall be entered on the civil docket, on which shall be entered:

    1. The short style of the suit or action,
    2. The names of the attorneys,
    3. The nature of the suit or action, and
    4. The date filed and case file number.In addition the docket may contain the following information applicable in an individual case as deemed appropriate:
    5. The hearing date(s) and type(s) of hearing(s) conducted on such date(s).The clerk may enter the clerk’s fees in the case on such docket instead of in the fee book.Cases appealed from the juvenile and domestic relations district courts shall be docketed as provided in this section and, to the extent inconsistent with this section, § 16.1-302 .

    1. The names of the parties,

    2. The date of the issuance of process,

    3. A memorandum of the service of process,

    4. A memorandum of the orders and proceedings in the case, and

    History. Code 1950, §§ 8-160, 8-165; 1954, c. 333; 1956, c. 307; 1977, c. 617; 1983, c. 293; 1990, c. 258; 2005, c. 681.

    REVISERS’ NOTE

    Former §§ 8-160 and 8-165 have been combined in § 8.01-331 . The term “action” is used collectively to include all proceedings brought or pending in circuit courts. Subsection 5 changes the former sections to require the noting of the date on which the action was filed instead of the date docketed.

    Editor’s note.

    Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provided that the amendment to this section by Acts 1993, c. 930, cl. 1, would become effective June 1, 1998, “if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly.” The funding was not provided.

    The 2005 amendments.

    The 2005 amendment by c. 681, effective January 1, 2006, deleted the former second sentence, which read: “Law cases shall be entered separately from equity cases on the docket” from the introductory paragraph and deleted “prescribed by § 14.1-168” following “book” in the next-to-last paragraph.

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Courts, § 10.

    CASE NOTES

    Date of notice of motion for judgment. —

    It is necessary for the clerk to keep a record of the date each notice of motion for judgment is returned and filed in his office. Brame v. Nolen, 139 Va. 413 , 124 S.E. 299 , 1924 Va. LEXIS 119 (1924) (decided under prior law).

    § 8.01-332. Calling current docket.

    The current docket may be called for the purpose of fixing cases for trial, on such days or at such intervals as may be directed by order of court.

    History. Code 1950, §§ 8-162, 8-167; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-332 is former § 8-162 with certain changes. The precedence given to actions of forcible or unlawful entry and detainer is abolished. However, the precedence granted proceedings in which the Commonwealth is a party is retained. Section 8.01-332 eliminates the necessity of calling the docket at each term and apparently embraces both law and equity cases. The discretion given the court as to the time of calling its docket made it unnecessary to reenact former § 8-163 relating to certain cities.

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Courts, § 10.

    § 8.01-333. Reserved.

    § 8.01-334. Repealed by Acts 1983, c. 293.

    § 8.01-335. Certain cases struck from dockets after certain period; reinstatement.

    1. Except as provided in subsection C, any court in which is pending an action, wherein for more than two years there has been no order or proceeding, except to continue it, may, in its discretion, order it to be struck from its docket and the action shall thereby be discontinued. However, no case shall be discontinued if either party requests that it be continued. The court shall thereafter enter a pretrial order pursuant to Rule 4:13 controlling the subsequent course of the case to ensure a timely resolution of that case. If the court thereafter finds that the case has not been timely prosecuted pursuant to its pretrial order, it may strike the case from its docket. The clerk of the court shall notify the parties in interest if known, or their counsel of record at his last known address, at least fifteen days before the entry of such order of discontinuance so that all parties may have an opportunity to be heard on it. Any case discontinued under the provisions of this subsection may be reinstated, on motion, after notice to the parties in interest if known or their counsel of record, within one year from the date of such order but not after.
    2. Any court in which is pending a case wherein for more than three years there has been no order or proceeding, except to continue it, may, in its discretion, order it to be struck from its docket and the action shall thereby be discontinued. The court may dismiss cases under this subsection without any notice to the parties. The clerk shall provide the parties with a copy of the final order discontinuing or dismissing the case. Any case discontinued or dismissed under the provisions of this subsection may be reinstated, on motion, after notice to the parties in interest, if known, or their counsel of record within one year from the date of such order but not after.
    3. If a civil action is pending in a circuit court on appeal from a general district court and (i) an appeal bond has been furnished by or on behalf of any party against whom judgment has been rendered for money or property and (ii) for more than one year there has been no order or proceeding, except to continue the matter, the action may, upon notice to the parties in accordance with subsection A, be dismissed and struck from the docket of the court. Upon dismissal pursuant to this subsection, the judgment of the general district court shall stand and the appeal bond shall be forfeited after application of any funds needed to satisfy the judgment.
    4. Any court in which is pending a case wherein process has not been served within one year of the commencement of the case may, in its discretion, order it to be struck from the docket, and the action shall thereby be discontinued. The clerk of the court shall notify the plaintiff or his counsel of record at his last known address at least 30 days before the entry of an order of discontinuance so that the plaintiff may have an opportunity to show that service has been timely effected on the defendant or that due diligence has been exercised to have service timely effected on the defendant. Upon finding that service has been timely effected or that due diligence has been exercised to have service timely effected, the court shall maintain the action on the docket and, if service has not been timely effected but due diligence to effect service has been exercised, shall require the plaintiff to attempt service in any manner permitted under Chapter 8 (§ 8.01-285 et seq.) of this title. Nothing herein shall prevent the plaintiff from filing a nonsuit under § 8.01-380 before the entry of a discontinuance order pursuant to the provisions of this subsection. Nothing in this subsection shall apply to asbestos litigation.

    History. Code 1950, § 8-154; 1954, c. 621; 1977, c. 617; 1990, c. 730; 1992, cc. 532, 792, 803, 835; 1994, c. 517; 1997, c. 680; 1999, c. 652; 2007, c. 498.

    REVISERS’ NOTE

    The subject matter of former § 8-154 is incorporated in § 8.01-335 . The only significant change is one of language to make it clear that the action of the court permitted after the two year period is to discontinue, while that permitted after the five year period is to dismiss.

    Cross references.

    As to appeals from courts not if record in civil cases, see § 16.1-106 et seq.

    Editor’s note.

    Rule 4:13, referred to in subsection A, is set out in the Rules of the Supreme Court.

    The 1999 amendment, in subsection B, inserted the second and third sentences, and deleted “and for cause” following “on motion” in the fourth sentence.

    The 2007 amendments.

    The 2007 amendment by c. 498 added subsection D.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For article on medical malpractice law for the year 2007-2008, see 43 U. Rich. L. Rev. 227 (2008).

    For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

    For annual survey article, “Civil Practice and Procedure,” see 46 U. Rich. L. Rev. 9 (2011).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Abatement, Survival and Revival, § 17.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Construction with other law. —

    Because: (1) the circuit court lacked the authority to dismiss plaintiff’s personal injury action under Norfolk, Va., Cir. Ct. R. 2(F)(3); (2) the local rule conflicted with the provisions governing the discontinuance of cases set forth in § 8.01-335 ; and (3) the local rule abridged plaintiff’s right to take a nonsuit under § 8.01-380 and recommence the action, said dismissal was void ab initio, and not subject to the limitation period of Va.Sup. Ct. R. 1:1. Collins v. Shepherd, 274 Va. 390 , 649 S.E.2d 672, 2007 Va. LEXIS 116 (2007).

    Purpose of subsection A. —

    Subsection A provides a device designed to benefit the trial courts in setting cases for trial and expediting litigation; it does not provide substantive rights to litigants to have cases dismissed for failure to prosecute within two years. Nash v. Jewell, 227 Va. 230 , 315 S.E.2d 825, 1984 Va. LEXIS 237 (1984).

    The purpose of subsection A is to enable trial courts to identify cases which litigants or their counsel are not interested in pursuing to a conclusion. Nash v. Jewell, 227 Va. 230 , 315 S.E.2d 825, 1984 Va. LEXIS 237 (1984).

    Subsection A does not apply to suits in which a final order or decree has been entered. Schoenwetter v. Schoenwetter, 8 Va. App. 601, 383 S.E.2d 28, 6 Va. Law Rep. 168, 1989 Va. App. LEXIS 106 (1989).

    Purpose of subsection B is to enable trial courts to eliminate from their dockets cases for which there is no reasonable prospect of trial. Nash v. Jewell, 227 Va. 230 , 315 S.E.2d 825, 1984 Va. LEXIS 237 (1984).

    Subsections A and B compared. —

    Subsection B permits courts to dismiss inactive cases without notice; by contrast, the purpose of subsection A is to enable courts to ascertain from the plaintiffs whether there is a desire and intent to try cases which have been dormant for two or more but less than five years. Nash v. Jewell, 227 Va. 230 , 315 S.E.2d 825, 1984 Va. LEXIS 237 (1984).

    Proper use of two-year statute in subsection A is to expedite rather than to terminate litigation. Nash v. Jewell, 227 Va. 230 , 315 S.E.2d 825, 1984 Va. LEXIS 237 (1984).

    Trial court improperly used subsection A to strike a suit in which a final decree had been entered and since the trial court employed a mode of procedure to discontinue a case that clearly did not fall within the authorization of this section the order of discontinuance entered in the case was void. Schoenwetter v. Schoenwetter, 8 Va. App. 601, 383 S.E.2d 28, 6 Va. Law Rep. 168, 1989 Va. App. LEXIS 106 (1989).

    Prospective order of discontinuance invalid. —

    Subsection B of § 8.01-335 does not allow a trial court to enter a self-executing order prospectively discontinuing or dismissing an action. Instead, if a trial court first determines that there has been no order or proceeding in an action for more than three years, it then may discontinue or dismiss the action pursuant to subsection B of § 8.01-335 . Rutter v. Oakwood Living Ctrs. of Va., Inc., 282 Va. 4 , 710 S.E.2d 460, 2011 Va. LEXIS 123 (2011).

    Trial court erred by concluding that its order, requiring the suit to be discontinued under subsection B of § 8.01-335 if no action was taken in the next three years, automatically discontinued the action three years later. The order merely removed the action from the docket; under subsection B of § 8.01-335 , a subsequent order was required to dismiss the action. Rutter v. Oakwood Living Ctrs. of Va., Inc., 282 Va. 4 , 710 S.E.2d 460, 2011 Va. LEXIS 123 (2011).

    Notice not required. —

    Trial court clerk was not required by § 8:01-335 to notify appellant of a docket call and the proposed discontinuance of his dormant appeal; nor did the clerk’s failure to send appellant timely notice after discontinuance of his inactive appeal deny him any opportunities as he still had 10 months left to seek reinstatement but elected not to do so. Heard v. Heard, 2002 Va. App. LEXIS 116 (Va. Ct. App. Feb. 26, 2002).

    Failure to provide notice rendered order voidable. —

    Trial court’s failure to provide notice to a party in interest that the court was reinstating an action under subsection B of § 8.01-335 rendered the order voidable rather than void ab initio. Zedan v. Westheim, 60 Va. App. 556, 729 S.E.2d 785, 2012 Va. App. LEXIS 257 (2012).

    Failure to provide copy of dismissal order. —

    Wife, who claimed that the trial court clerk had not provided her with a copy of the dismissal order as required by the provision had not overcome the presumption that the clerk had discharged his duties property; moreover, even if the clerk did fail to comply with the statute, the dismissal order would not be void. Milot v. Milot, 62 Va. App. 415, 748 S.E.2d 655, 2013 Va. App. LEXIS 286 (2013).

    Action should not be discontinued where defendant ready and willing to go to trial. —

    As a general rule, if a plaintiff who is ready and willing to go to trial is brought before the court under the provisions of this section and demonstrates an intent to proceed with his case, the court should not discontinue his action. Nash v. Jewell, 227 Va. 230 , 315 S.E.2d 825, 1984 Va. LEXIS 237 (1984).

    Service untimely. —

    Employee’s nonsuit, and its subsequent vacatur, did not change the service of process requirement set forth under §§ 8.01-275.1 and 8.01-335 ; the twelve-month period for service ended on August 15, 2012, but the employee did not serve process until August 31, 2012, and her service of process was therefore untimely under Virginia law. Rice v. Alpha Sec., Inc., 556 Fed. Appx. 257, 2014 U.S. App. LEXIS 3483 (4th Cir. 2014).

    Plaintiff not put to terms where he filed praecipe and obtained trial date. —

    Where the trial court had before it defendant’s motion to discontinue, and the plaintiff had filed a praecipe and obtained a trial date, the purpose of subsection A, therefore, was served. The trial court knew that the plaintiff had not abandoned the case, was ready for trial, and had arranged for an early trial date. There was no reason, therefore, for the trial court to put the plaintiff on terms to try the case. Nash v. Jewell, 227 Va. 230 , 315 S.E.2d 825, 1984 Va. LEXIS 237 (1984).

    Reinstatement after dismissal of cause of action. —

    Trial court erred in sustaining doctors’ pleas and dismissing a wrongful death action as barred by subsection B of § 8.01-244 because the statute of limitations for wrongful death actions in subsection B of § 8.01-244 did not bar the reinstatement of the personal representative’s action, which was dismissed under subsection B of § 8.01-335 . Conger v. Barrett, 280 Va. 627 , 702 S.E.2d 117, 2010 Va. LEXIS 261 (2010).

    Based upon a review of subsection B of § 8.01-335 as a whole and its legislative history, a circuit court does not have discretion to deny a procedural motion to reinstate a case that has been discontinued or dismissed when the party seeking reinstatement has complied with the timeliness and notice requirements. JSR Mech., Inc. v. Aireco Supply, Inc., 291 Va. 377 , 786 S.E.2d 144, 2016 Va. LEXIS 55 (2016).

    Dismissal of action terminated right to pendente lite spousal support. —

    The authority for the court to provide for spousal support “during the pendency of the suit” is limited to the right to make such award only for the period the action is pending, notwithstanding the wording of the pendente lite decree which provided that the award should continue until “further order of the court.” The order of dismissal by operation of law under subsection B of this section terminated the wife’s right to further pendente lite support. Smith v. Smith, 4 Va. App. 148, 354 S.E.2d 816, 3 Va. Law Rep. 2179, 1987 Va. App. LEXIS 173 (1987).

    But did not retroactively nullify accrued pendente lite support. —

    There is no persuasive authority or reason to hold that the dismissal of an action pursuant to subsection B of this section, standing alone, retroactively nullifies the right to accrued spousal support under a pendente lite order. To so hold would be in derogation of the well established principle that court-ordered support becomes vested when it accrues and the courts are without authority to make any change with regard to arrearages. Smith v. Smith, 4 Va. App. 148, 354 S.E.2d 816, 3 Va. Law Rep. 2179, 1987 Va. App. LEXIS 173 (1987).

    And denial of accrued support would violate due process. —

    A dismissal under subsection B requires no notice to the parties, and, thus, to hold that the right to the amount of support that had accrued could be taken away by dismissal of the action would be in violation of the due process clause of the Fourteenth Amendment to the United States Constitution.Smith v. Smith, 4 Va. App. 148, 354 S.E.2d 816, 3 Va. Law Rep. 2179, 1987 Va. App. LEXIS 173 (1987).

    No due process violation. —

    Dismissal of case under the provision allowing for dismissal where there had been no order or proceeding for three years, which terminated a wife’s pendente lite spousal and child support, did not violate due process because there was an adequate post-deprivation remedy available to the wife in that the legislature had extended the trial court’s jurisdiction to one year after a case was dismissed under the provision. Milot v. Milot, 62 Va. App. 415, 748 S.E.2d 655, 2013 Va. App. LEXIS 286 (2013).

    Termination of mensa decree upon dismissal of divorce suit. —

    Dismissal of a divorce suit, in which no decree or proceeding has taken place within five years, terminates a mensa decree which may have been entered therein. Crenshaw v. Crenshaw, 12 Va. App. 1129, 408 S.E.2d 556, 8 Va. Law Rep. 518, 1991 Va. App. LEXIS 209 (1991).

    Dismissal erroneous. —

    Trial court had jurisdiction pursuant to subsection B of § 8.01-335 to enter its order that reinstated the mother’s medical malpractice case on behalf of the three-year-old son, against the doctor, to the docket and the fact that the required notice was not given to the doctor before reinstatement meant the order was merely void, and not voidable. As a result, the doctor was not entitled to collaterally attack the order granting reinstatement on limitations grounds and the case should not have been dismissed. Hicks v. Mellis, 275 Va. 213 , 657 S.E.2d 142, 2008 Va. LEXIS 36 (2008).

    Circuit court could not dismiss an action because that would be in violation of the mandate of the court of appeals, which required the circuit court to correct the error regarding the effective date of retroactivity. Barrett v. Commonwealth, 2020 Va. App. LEXIS 40 (Va. Ct. App. Feb. 11, 2020).

    II.Decisions Under Prior Law.

    Editor’s note.

    This section is designed to speed litigation, and should, in general, be obeyed. Lowry v. Noell, 177 Va. 238 , 13 S.E.2d 312, 1941 Va. LEXIS 211 (1941).

    The term “discontinuance” has a well settled meaning in the law and has had from a very ancient time. A discontinuance is “in effect a nonsuit,” and the effect of a nonsuit is simply to put an end to the present action, but is no bar to a subsequent action for the same cause. Payne v. Buena Vista Extract Co., 124 Va. 296 , 98 S.E. 34 , 1919 Va. LEXIS 126 (1919).

    Reinstatement after one year. —

    A cause stricken from the docket under this provision cannot be reinstated after the lapse of one year, except by consent of all parties. A decree striking a cause from the docket is an adjudication that everything has been done in the cause that the court intends to do. The decree may be erroneous, but the error does not render it less final, and the court having by its order put the cause beyond its control, cannot upon a discovery of error recall it in a summary way and resume a jurisdiction which has been exhausted. Snead v. Atkinson, 121 Va. 182 , 92 S.E. 835 , 1917 Va. LEXIS 22 (1917).

    A decree striking a cause from the docket pursuant to this section is an adjudication that everything has been done in the cause which the court intended to do, and is final, and the cause cannot be reinstated on the docket after the lapse of one year without the consent of all parties to be affected thereby. Echols v. Brennan, 99 Va. 150 , 37 S.E. 786 , 1901 Va. LEXIS 22 (1901).

    CIRCUIT COURT OPINIONS

    Case not inactive. —

    Insured’s motion to dismiss a personal injury action filed by a go-cart driver and his father was denied because the case was not inactive for even two years to allow it to be discontinued; the case was stayed until a final disposition was made in a declaratory judgment action filed against the insured, which prevented the driver and father from pursuing the case until the declaratory judgment action was resolved, and if the case was dismissed at the same time as the final disposition of the declaratory judgment action, the driver and father would be prevented from having a meaningful opportunity to pursue their claim. State Farm Fire & Cas. Co. v. Ruff, 79 Va. Cir. 50, 2009 Va. Cir. LEXIS 253 (Chesapeake Apr. 16, 2009).

    Motion to reinstate. —

    Whereas a case extinguished by a judgment and effectuated by the 21-day rule, codified at § 8.01-428 , is fully dispositive of all disputed issues and facts pertaining thereto, a case dismissed pursuant to this section is not dead but in a state of suspended animation. Consequently, the two-year statute affords those parties to dismissed proceedings the opportunity to be heard and have their disputes resolved by the legal system if requested within the statutorily mandated period of time in order to promote the principles of justice without clogging the dockets of Virginia’s courts. Cook v. Wayland, 64 Va. Cir. 386, 2004 Va. Cir. LEXIS 60 (Waynesboro Apr. 26, 2004).

    Plaintiff’s motion to reinstate his personal injury suit against defendant nearly eight months after the issuance of an order dismissing the case could be granted without offending the strict final judgment rule because he had complied with subsection A of this section by filing his motion within one year from the date of the dismissal order. The 21-day rule of Rule 1:1, codified at § 8.01-428 , did not prevent reinstatement because the original suit had been dismissed pursuant to this section. Cook v. Wayland, 64 Va. Cir. 386, 2004 Va. Cir. LEXIS 60 (Waynesboro Apr. 26, 2004).

    Because it was reasonable for a pro se plaintiff to await notice from a court as to the next steps in a case when the plaintiff previously received similar instructions in the underlying administrative matter, the discontinued case could be reinstated under subsection B of § 8.01-335 , even though the order therefor was after the deadline. Gittens v. Va. Empl. Comm'n, 80 Va. Cir. 106, 2010 Va. Cir. LEXIS 150 (Chesapeake Jan. 25, 2010).

    Plaintiffs did not meet the criteria for reinstatement as defined in this section, because defendant did not receive notification of plaintiffs’ intent to proceed within one year of the removal order. Fowler v. WCC Cable, 102 Va. Cir. 288, 2019 Va. Cir. LEXIS 253 (Orange County July 2, 2019).

    OPINIONS OF THE ATTORNEY GENERAL

    What constitutes a “proceeding.” —

    Whether a copy of a letter to opposing counsel filed with the clerk of court qualifies as a “proceeding” under subsection A of § 8.01-335 depends on specific contents of the letter. See opinion of Attorney General to The Honorable Jack Kennedy, Clerk, Circuit Court of Wise County, 11-057, 2011 Va. AG LEXIS 49 (7/22/11).

    When an attorney files a copy of a letter to opposing counsel with the clerk of court, such a filing does not constitute a “proceeding,” but the filed letter may indicate that there are other ongoing proceedings pending in the action, thereby foreclosing the discontinuance of the action. See opinion of Attorney General to The Honorable Jack Kennedy, Clerk, Circuit Court of Wise County, 11-057, 2011 Va. AG LEXIS 49 (7/22/11).

    Chapter 11. Juries.

    Article 1. When Jury Trial May Be Had.

    § 8.01-336. Jury trial of right; waiver of jury trial; court-ordered jury trial; trial by jury of plea in equity; equitable claim.

    1. The right of trial by jury as declared in Article I, Section 11 of the Constitution of Virginia and by statutes thereof shall be preserved inviolate to the parties. Unless waived, any demand for a trial by jury in a civil case made in compliance with the Rules of Supreme Court of Virginia shall be sufficient, with no further notice, hearing, or order, to proceed thereon.
    2. Waiver of jury trial. —  In any action at law in which the recovery sought is greater than $20, exclusive of interest, unless one of the parties demands that the case or any issue thereof be tried by a jury, or in a criminal action in which trial by jury is dispensed with as provided by law, the whole matter of law and fact may be heard and judgment given by the court.
    3. Court-ordered jury trial. —  Notwithstanding any provision in this Code to the contrary, in any action asserting a claim at law in which there has been no demand for trial by jury by any party, a circuit court may on its own motion direct one or more issues, including an issue of damages, to be tried by a jury.
    4. Trial by jury of plea in equity. —  In any action in which a plea has been filed to an equitable claim, and the allegations of such plea are denied by the plaintiff, either party may have the issue tried by jury.
    5. Suit on equitable claim. —  In any suit on an equitable claim, the court may, of its own motion or upon motion of any party, supported by such party’s affidavit that the case will be rendered doubtful by conflicting evidence of another party, direct an issue to be tried before an advisory jury.

    History. Code 1950, §§ 8-208.21, 8-211, 8-212, 8-213, 8-214; 1954, c. 333; 1973, c. 439; 1974, c. 611; 1975, c. 578; 1977, c. 617; 2005, c. 681; 2014, c. 172.

    REVISERS’ NOTE

    Subsection A, Jury trial of right, generally adopts the wording of FRCP 38 (a), but substitutes appropriate reference to the “Commonwealth” in lieu of “the United States” and to Va. Const., Art. I, § 11 instead of the Seventh Amendment to the United States Constitution.

    Subsection B, Waiver of jury trial, combines former § 8-211 with § 8-208.21. If a civil action or an issue in the action is triable of right by jury under subsection A, unless a party to such action requests that the action or issue be so tried, he waives that right. The $20 amount in former § 8-211 has been increased to $100 in the enacted statute.

    Subsection C, Court ordered jury trial, is declaratory of established practice.

    Subsection D, Trial by jury of plea in equity, is former § 8-213 without substantial change.

    Subsection E, Issue out of chancery, is former § 8-214 without substantial change.

    Cross references.

    As to applicability of Chapter 11 (§ 8.01-336 et seq.) in criminal cases, see § 19.2-260 .

    As to waiver of jury trial in criminal cases, see § 19.2-262 .

    As to suits to remove cloud from title, see § 55.1-123 .

    As to trial by jury of escheat cases, see §§ 55.1-2406 , 55.1-2407 , and 55.1-2410 .

    The 2005 amendments.

    The 2005 amendment by c. 681, effective January 1, 2006, substituted “demands” for “demand” in subsection B; and in subsection E, substituted “Suit on equitable claim” for “Issue out of chancery,” “on an equitable claim” for “in equity” and “before an advisory jury” for “by a jury.”

    The 2014 amendments.

    The 2014 amendment by c. 172, in subsection A, added the last sentence; and in subsection B substituted “$20” for “$100.”

    Law Review.

    For article, “Appeal De Novo in Virginia: An Examination of Its Present Utility,” see 42 Wash. & Lee L. Rev. 1149 (1985).

    For article, “A Proposal to Simplify Virginia Burdens of Proof,” see 12 G.M.U. L. Rev. 1 (1989).

    For a note, “Invaluable Tool vs. Unfair Use of Private Information: Examining Prosecutors’ Use of Jurors’ Criminal History Records in Voir Dire,” see 56 Wash. & Lee L. Rev. 1079 (1999).

    For annual survey commentary, “The Merger of Common-Law and Equity Pleading in Virginia,” see 41 U. Rich. L. Rev. 77 (2006).

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Counties, § 83.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    In equity, a litigant has no constitutional right to trial by jury, and, absent a plea in equity, no statutory right. Wright v. Castles, 232 Va. 218 , 349 S.E.2d 125, 3 Va. Law Rep. 945, 1986 Va. LEXIS 248 (1986).

    All parties to civil litigation are entitled to a fair and impartial trial by a jury of persons who stand indifferent in the cause. Edlow v. Arnold, 243 Va. 345 , 415 S.E.2d 436, 8 Va. Law Rep. 2266, 1992 Va. LEXIS 8 (1992).

    Right to jury trial not improperly denied where plaintiff did not follow procedure. —

    Dismissal of suit, which complained only of the denial of a trial by jury and asserted a collusion by defendants to deny him one, was proper, where plaintiff’s own actions in bringing suit in the general district court rather than the circuit court deprived him of a trial by jury. He had originally brought his personal injury claim in circuit court, as he was entitled to by § 17-123, he would have received a jury upon request under this section. He also could have received a de novo jury trial by properly perfecting his appeal from general district court under § 16.1-113 . His failure to receive a jury trial, therefore, was the result of his own failure to follow valid state procedures rather than the result of any collusion by defendants in violation of 42 U.S.C. § 1983. Beaudett v. City of Hampton, 775 F.2d 1274, 1985 U.S. App. LEXIS 24559 (4th Cir. 1985), cert. denied, 475 U.S. 1088, 106 S. Ct. 1475, 89 L. Ed. 2d 729, 1986 U.S. LEXIS 963 (1986).

    Additional demand for trial by jury not required. —

    Distributor had not waived its statute of limitations defense and was entitled to present its theory to the jury because it specifically set forth in a responsive pleading its defense of the statute of limitations; since the customer’s demand for a trial by jury did not specify any limits on the issues on which a jury trial was requested, the distributor had no obligation to make an additional demand. Ferguson Enters., Inc. v. F.H. Furr Plumbing, Heating & Air Conditioning, Inc., 297 Va. 539 , 830 S.E.2d 917, 2019 Va. LEXIS 87 (2019).

    Distributor was not required to file an additional demand for a trial by jury because its customer had already demanded a jury trial as to all issues, and the distributor was entitled to rely upon the demand for a jury trial made by the customer as to all issues in controversy between them; the statutes do not require duplicate jury demands to preserve the right to a trial by jury. Ferguson Enters., Inc. v. F.H. Furr Plumbing, Heating & Air Conditioning, Inc., 297 Va. 539 , 830 S.E.2d 917, 2019 Va. LEXIS 87 (2019).

    Defense to be heard by jury. —

    Distributor was entitled to have its statute of limitations defense heard by a jury especially where the issue was initially presented to the trial judge for decision, and the judge declined to decide the matter because evidence was required. Ferguson Enters., Inc. v. F.H. Furr Plumbing, Heating & Air Conditioning, Inc., 297 Va. 539 , 830 S.E.2d 917, 2019 Va. LEXIS 87 (2019).

    Bankruptcy court’s authority to provide jury trial. —

    The common-law right of trial by jury imbedded in the Constitution of the United States and of Virginia coupled with the statutory enabling statutes eliminates any question as to whether or not the bankruptcy court is vested with the authority to provide a trial by jury where such right otherwise exists in other courts, whatever the forum. Brown v. Frank Meador Buick, Inc., 8 Bankr. 450, 1981 Bankr. LEXIS 5132 (Bankr. W.D. Va. 1981).

    What is a plea. —

    A plea, whether at law or in equity, is a discrete form of defensive pleading; distinguished from an answer or grounds of defense, a plea does not address the merits of the issues raised by the bill of complaint or the motion for judgment; rather, it alleges a single state of facts or circumstances (usually not disclosed or disclosed only in part by the record) which, if proven, constitutes an absolute defense to the claim. Nelms v. Nelms, 236 Va. 281 , 374 S.E.2d 4, 5 Va. Law Rep. 883, 1988 Va. LEXIS 153 (1988).

    Pleadings in general answers and a cross-bill were not pleas in equity within the intendment of subsection D; consequently, the chancellor could not have relied on this subsection for his decision to submit a question of mental competence to a jury. Nelms v. Nelms, 236 Va. 281 , 374 S.E.2d 4, 5 Va. Law Rep. 883, 1988 Va. LEXIS 153 (1988).

    Trial court did not err in denying father’s request for a jury trial. —

    Although father maintained that a jury should have been impanelled to determine whether he should have been relieved of his obligation to support his child due to violation of his rights by mother’s seduction of him and decision to keep the child, even assuming the allegations were true, they did not constitute a bar to the enforcement of his support obligations; in Virginia, both parents of a child owe that child a duty of support during minority. Hur v. Virginia Dep't of Social Serv. Div. of Child Support Enforcement ex rel. Klopp, 13 Va. App. 54, 409 S.E.2d 454, 8 Va. Law Rep. 731, 1991 Va. App. LEXIS 250 (1991).

    Plaintiff may withdraw consent to three-person special jury before trial has begun. —

    Given the clearly expressed constitutional purpose and legislative intent to preserve the right to trial by jury in both criminal and civil cases, a consent to a special three-person jury under subsection D of § 8.01-359 may be withdrawn before trial under the same conditions as are enunciated in Thomas v. Commonwealth, 218 Va. 553 , 238 S.E.2d 834 (1977). Painter v. Fred Whitaker Co., 235 Va. 631 , 369 S.E.2d 191, 4 Va. Law Rep. 3156, 1988 Va. LEXIS 73 (1988).

    Waiver of right to jury trial. —

    Although pursuant to subsection B a civil litigant that fails to demand a jury waives their right to a trial by jury, nothing in that subsection compels a bench trial in Virginia Circuit Courts upon a party’s waiver of trial by jury since the subsection simply establishes waiver of the right to a jury trial; it does not address how, or even whether, the waiver will be enforced by the Circuit Courts of Virginia. Keatley v. Food Lion, Inc., 715 F. Supp. 1335, 1989 U.S. Dist. LEXIS 8092 (E.D. Va. 1989).

    In a personal injury suit based on a vehicular collision involving a police officer, the circuit court properly granted the officer’s sovereign immunity plea in bar based on its factual finding that the officer was engaged in overtaking a speeding vehicle at the time of the accident because the passenger had not requested a jury trial on the factual issues in the officer’s plea. Hawthorne v. VanMarter, 279 Va. 566 , 692 S.E.2d 226, 2010 Va. LEXIS 54 (2010).

    Waiver of jury trial did not apply to remand. —

    Longshoreman who brought a negligence action against a boat owner was entitled to demand a jury trial in the proceeding held upon remand because the circuit court made an unchallenged factual finding that the waiver of the longshoreman’s right to a jury trial, under Va. Const., Art. I, § 11 and this section, was limited to the first trial. Heinrich Schepers GmbH & Co., KG v. Whitaker, 280 Va. 507 , 702 S.E.2d 573, 2010 Va. LEXIS 267 (2010).

    Denial of motion to withdraw waiver of jury trial was improper. —

    Denial of defendant’s motion to withdraw his waiver of his right to a jury trial was improper because the record failed to show that the motion was made solely for the purpose of delay or whether defendant’s request for a jury trial could have been accommodated at the time it was made. The record also failed to disclose the number of witnesses that would have been inconvenienced by the continuance, or the difficulty that rescheduling the trial would present to those witnesses. Cokes v. Commonwealth, 280 Va. 92 , 694 S.E.2d 582, 2010 Va. LEXIS 60 (2010).

    Standard of review. —

    Whether a civil litigant has been denied the right to trial by a fair and impartial jury is a question treated on appeal as one addressed to the sound discretion of the trial court and, unless there has been abuse of that discretion, the judgement below will not be reversed on appeal. Edlow v. Arnold, 243 Va. 345 , 415 S.E.2d 436, 8 Va. Law Rep. 2266, 1992 Va. LEXIS 8 (1992).

    B.Jury Trial of Right.

    This section and its predecessors provide for a jury trial as a matter of right on the motion of either party. Stanardsville Volunteer Fire Co. v. Berry, 229 Va. 578 , 331 S.E.2d 466, 1985 Va. LEXIS 235 (1985).

    On the issue of attorney fees. —

    Trial court did not err, in the creditor’s promissory note action against the debtor, in denying the creditor’s post-verdict motion for attorney fees despite the fact that a promissory note provision would permit the creditor to recover attorney fees; the debtor had a state constitutional and statutory right to have the issue of awarding attorney fees submitted to the jury, the jury considered the issue, and the jury returned a verdict with its monetary award, and, thus, the creditor was not entitled to claim that a custom existed that the issue of attorney fees was decided in a post-verdict motion, especially since he did not offer evidence to support that claim. Lee v. Mulford, 269 Va. 562 , 611 S.E.2d 349, 2005 Va. LEXIS 40 (2005).

    Disputed facts. —

    The date when an investment company’s land first suffered damage as a result of a city’s acts was an issue of disputed fact, and the investment company was entitled to a jury trial on that issue; in any event, the city failed to present sufficient evidence to support the trial court’s finding as to the date when damage first occurred. The only evidence presented related to a date when surface water backed up from the city’s parcel in a ditch that extended partially into the investment company’s land, and the mere presence of water in a drainage ditch was not in itself, injurious or damaging to the land. Bethel Inv. Co. v. City of Hampton, 272 Va. 765 , 636 S.E.2d 466, 2006 Va. LEXIS 93 (2006).

    Treatment order for mentally ill patient. —

    Plea-in-equity procedure recognized by subsection D of § 8.01-336 did not require a circuit court to impanel a jury to decide whether the religious beliefs, basic values, or specific preferences of a patient, who had been declared legally insane, precluded the entry of a treatment order under subdivision G 4 of § 37.2-1101 . Ingram v. Commonwealth, 62 Va. App. 14, 741 S.E.2d 62, 2013 Va. App. LEXIS 131 (2013).

    C.Issue Out of Chancery.

    Trials of issues out of chancery and on plea in equity differ. —

    There are distinct differences between the trial of an issue out of chancery, now covered by subsection E, and trial of an issue on a plea in equity. Stanardsville Volunteer Fire Co. v. Berry, 229 Va. 578 , 331 S.E.2d 466, 1985 Va. LEXIS 235 (1985).

    Discretion of chancellor. —

    Under subsection E of this section, the chancellor may, upon the motion of any party, direct an issue out of chancery whenever the facts stated in the party’s affidavit render the resolution of the cause doubtful; alternatively, the chancellor may, of his own motion, submit an issue to a jury even though not requested by either party. In either event, the decision is one within the sound discretion of the chancellor. Nelms v. Nelms, 236 Va. 281 , 374 S.E.2d 4, 5 Va. Law Rep. 883, 1988 Va. LEXIS 153 (1988).

    Trial court directed only one factual issue — existence of an agreement — to be determined as an issue out of chancery, and court did not abuse its discretion in denying appellant’s further request to refer legal determination of estoppel. Zampolin v. Barnum, No. 0419-99-2 (Ct. of Appeals Dec. 28, 1999).

    Decision to impanel jury left to trial court’s sound discretion. —

    The issue whether to impanel a jury is left to the trial court’s sound discretion and will not be reversed absent an abuse of discretion. Hur v. Virginia Dep't of Social Serv. Div. of Child Support Enforcement ex rel. Klopp, 13 Va. App. 54, 409 S.E.2d 454, 8 Va. Law Rep. 731, 1991 Va. App. LEXIS 250 (1991).

    Effect of jury’s findings under subsection E. —

    Unlike a jury’s response to an interrogatory submitted under subsection D, a jury’s findings under subsection E are not binding and conclusive, but are merely advisory, informing the conscience of the chancellor. Nelms v. Nelms, 236 Va. 281 , 374 S.E.2d 4, 5 Va. Law Rep. 883, 1988 Va. LEXIS 153 (1988).

    Appellate review where chancellor decides case despite jury verdict. —

    When the chancellor has decided the case himself, despite the verdict of the jury and contrary to their findings, on appeal the duty devolves upon the appellate court to examine the evidence, and if in its opinion the preponderance thereof is with the verdict, the decree will be reversed and final judgment entered in accordance with the verdict. But where the evidence preponderates in support of the judgment of the chancellor, his judgment will be upheld. Angstadt v. Atlantic Mut. Ins. Co., 254 Va. 286 , 492 S.E.2d 118, 1997 Va. LEXIS 78 (1997).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    B.Jury Trial of Right.

    Subsection A applicable to trials in a court of record. —

    Subsection A is applicable to all trials in the courts of record, other than the Supreme Court, had on motions (now in actions at law), and is not confined to motions for the recovery of money in an action of debt. Lambert v. Board of Supvrs., 140 Va. 62 , 124 S.E. 254 , 1924 Va. LEXIS 156 (1924).

    C.Trial by Jury of Plea in Equity.

    Subsection D mandatory. —

    The object of this section is not to inform the conscience of the chancellor, but to determine the issue of fact raised by the plea. The chancellor has no discretion about awarding the jury trial. The statute is mandatory that “either party may have such issue tried by a jury,” and the verdict when rendered stands like any other verdict of a jury where the right to such trial is given without discretion on the part of the court. The court cannot disregard the verdict nor discharge the jury before verdict, as he may on the trial of an issue out of chancery. Towson v. Towson, 126 Va. 640 , 102 S.E. 48 , 1920 Va. LEXIS 16 (1920); Elmore v. Maryland & Va. Milk Producers' Ass'n, 145 Va. 42 , 134 S.E. 472 , 1926 Va. LEXIS 372 (1926); Fitchette v. Cape Charles Bank, 146 Va. 715 , 132 S.E. 688 , 1926 Va. LEXIS 359 (1926); Phillips v. Wells, 147 Va. 1030 , 133 S.E. 581 , 1926 Va. LEXIS 302 (1926).

    The object of subsection D is to determine the issue of fact raised by the plea, not to inform the conscience of the chancellor. The chancellor has no discretion about awarding the jury trial when the plea has been properly filed. It is a wholly statutory proceeding. Eagle Lodge, Inc. v. Hofmeyer, 193 Va. 864 , 71 S.E.2d 195, 1952 Va. LEXIS 197 (1952).

    How issue made up. —

    In a proceeding by motion in order to entitle the defendants to a trial by jury, an issue must be made up. This issue may be tendered by a plea, or by an informal statement in writing of the grounds of defense. A mere oral statement is not sufficient. In cases where the statute requires the plea to be verified by affidavit, that requirement of the statute must be complied with. Preston v. Salem Imp. Co., 91 Va. 583 , 22 S.E. 486 , 1895 Va. LEXIS 55 (1895); Whitley v. Booker Brick Co., 113 Va. 434 , 74 S.E. 160 , 1912 Va. LEXIS 54 (1912).

    No formal pleas are necessary, except in cases where statutes require them, but the defendant may make his defense by an informal statement in writing of the grounds of his defense. This statement will be treated as a plea or pleas, and the plaintiff may rely thereto with like informality. The defendant, however, may plead formally if he chooses, according to the course of the common law, and this is in all cases the better practice. But in every case an issue must in some way be made up on the record, in order to have a trial by jury. Dickens v. Radford-Willis S. Ry., 121 Va. 353 , 93 S.E. 625 , 1917 Va. LEXIS 40 (1917).

    Pleading must be in form and substance a plea. —

    Subsection D requires that the pleading filed by a defendant, upon which the plaintiff may take issue and as to which either party may then demand a jury trial, be in form and in substance a plea, and not merely an answer or an answer and cross-claim. Bolling v. GMAC, 204 Va. 4 , 129 S.E.2d 54, 1963 Va. LEXIS 108 (1963).

    Issue for trial by jury, under this section, is entirely different from an issue out of chancery. Elmore v. Maryland & Va. Milk Producers' Ass'n, 145 Va. 42 , 134 S.E. 472 , 1926 Va. LEXIS 372 (1926); Phillips v. Wells, 147 Va. 1030 , 133 S.E. 581 , 1926 Va. LEXIS 302 (1926).

    The defense by plea is used where the defendant desires to present a single state of facts (although possibly made up of numerous circumstances) as a defense to the plaintiff’s suit. If the plea is sufficient, that is, if it states a matter of fact sufficient, if true, to end the controversy in favor of defendant, then defendant is entitled as a matter of right to have the issue tried by a jury. Campbell v. Johnson, 203 Va. 43 , 122 S.E.2d 907, 1961 Va. LEXIS 218 (1961).

    The office of a plea is to present a simple issue of fact which operates as a bar to the plaintiff’s right of recovery. The fact put in issue by the plea constitutes in itself a complete defense to the bill, or to that part of the bill to which it is pleaded. Bolling v. GMAC, 204 Va. 4 , 129 S.E.2d 54, 1963 Va. LEXIS 108 (1963).

    Plaintiffs are entitled to trial by jury of their punitive damage claim. O'Brien v. Snow, 215 Va. 403 , 210 S.E.2d 165, 1974 Va. LEXIS 299 (1974).

    Negligence, contributory negligence, and proximate cause are ordinarily questions for the jury to determine. It is only when reasonable men should not differ as to the reasonable inferences and proper conclusions to be drawn from the evidence that they become questions of law to be decided by the court. Schutt v. Brockwell, 214 Va. 38 , 196 S.E.2d 921, 1973 Va. LEXIS 251 (1973).

    Pleas to jurisdiction in divorce action. —

    In a suit for divorce brought by a husband on the ground of desertion, two pleas to the jurisdiction were filed by the wife. Issue was taken on these pleas, and a verdict found by a jury on both pleas in favor of the husband. The jury trial was demanded by the husband. It was held that the trial court committed no error in impaneling a jury to try the issues made on the pleas to the jurisdiction, as this was not a case of an issue out of chancery, and was not controlled by the rules regulating the awarding of such issues, but is a wholly statutory proceeding. Towson v. Towson, 126 Va. 640 , 102 S.E. 48 , 1920 Va. LEXIS 16 (1920).

    Plea denying embezzlement. —

    Where the bill sought to impose a trust on embezzled property, a plea denying the embezzlement raised no issue as to the amount embezzled. Under the plea the question of the amount taken could not properly have been submitted to the jury. The amount involved in the embezzlement was in no way a bar to the suit. It was merely an issue as to the merits of the suit and therefore properly subject to a general answer in equity and not subject to a special plea. Campbell v. Johnson, 203 Va. 43 , 122 S.E.2d 907, 1961 Va. LEXIS 218 (1961).

    Plea of misrepresentation and asking “offset.” —

    In a suit to enforce a conditional sales contract defendant’s “answer and cross-claim” alleging misrepresentation by the seller and asking damages to be “offset” against the purchase price was not a plea such as is contemplated by this section. Bolling v. GMAC, 204 Va. 4 , 129 S.E.2d 54, 1963 Va. LEXIS 108 (1963).

    D.Issue Out of Chancery.

    The object of an issue is to satisfy the conscience of the chancellor in a doubtful case. An issue is not directed merely because the evidence is contradictory. The propriety of ordering an issue is determined by the application of sound legal discretion to the circumstances of the situation. Crebs v. Jones, 79 Va. 381 , 1884 Va. LEXIS 93 (1884); Bunkley v. Commonwealth, 130 Va. 55 , 108 S.E. 1 , 1921 Va. LEXIS 141 (1921) (see also Catron v. Norton Hdwe. Co., 123 Va. 380 , 96 S.E. 853 (1918); Hook v. Hook, 126 Va. 249 , 101 S.E. 223 (1919); Elmore v. Maryland & Va. Milk Producers’ Ass’n, 145 Va. 42 , 134 S.E. 472 (1926)).

    The chancellor is the keeper of his own conscience and the purpose of an issue out of chancery is to satisfy him. Harris v. Citizens Bank & Trust Co., 172 Va. 111 , 200 S.E. 652 , 1939 Va. LEXIS 225 (1939).

    Judicial discretion. —

    It was not intended by subsection E to change the firmly established rule of law that the chancellor is to properly exercise his discretion on sound legal principles of reason and justice. Any other interpretation of subsection E would make the whole matter of directing an issue one of right and not of discretion on the part of the court. Stevens v. Duckett, 107 Va. 17 , 57 S.E. 601 , 1907 Va. LEXIS 5 (1907); Bunkley v. Commonwealth, 130 Va. 55 , 108 S.E. 1 , 1921 Va. LEXIS 141 (1921); Southgate v. Sanford & Brooks Co., 147 Va. 554 , 137 S.E. 485 , 1927 Va. LEXIS 323 (1927).

    The granting of an issue out of chancery under this section lies not within the arbitrary, but within the sound judicial discretion of the chancellor. Elmore v. Maryland & Va. Milk Producers' Ass'n, 145 Va. 42 , 134 S.E. 472 , 1926 Va. LEXIS 372 (1926).

    Discretion subject to review. —

    The object of an issue is to satisfy the conscience of the chancellor in a doubtful case. But it is not to be directed merely because the evidence is contradictory. The conflict of evidence must be great and its weight so nearly evenly balanced that the court is unable or with difficulty able to determine where preponderance lies. It is a matter within the sound judicial discretion of the chancellor and is subject to review on appeal. Eastern Fin. Co. v. Gordon, 179 Va. 674 , 20 S.E.2d 522, 1942 Va. LEXIS 263 (1942).

    Where the chancellor (although not requested to do so) has failed to order an issue out of chancery in a proper case, and the Supreme Court is not satisfied that the ends of justice have been attained, it will reverse and remand the cause, with directions to impanel a jury and determine the issue. Catron v. Norton Hdwe. Co., 123 Va. 380 , 96 S.E. 853 , 1918 Va. LEXIS 38 (1918); Hook v. Hook, 126 Va. 249 , 101 S.E. 223 , 1919 Va. LEXIS 92 (1919).

    The chancellor may order an issue out of chancery, under subsection E, but it is a matter subject to his sound judicial discretion and is subject to review on appeal. To justify it, the conflict of evidence must be great and its weight so nearly evenly balanced that the court is unable or with difficulty able to determine where preponderance rests. It is not enough that the evidence be contradictory. Harris v. Citizens Bank & Trust Co., 172 Va. 111 , 200 S.E. 652 , 1939 Va. LEXIS 225 (1939).

    When issue should be ordered. —

    In cases of exceptional difficulty and conflict of testimony it is error for the court to fail to order an issue out of chancery. Bunkley v. Commonwealth, 130 Va. 55 , 108 S.E. 1 , 1921 Va. LEXIS 141 (1921) (see also Elmore v. Maryland & Va. Milk Producers’ Ass’n, 145 Va. 42 , 134 S.E. 472 (1926)).

    What affidavits must show. —

    The mere allegation in an affidavit by either the plaintiff or defendant that the case would be rendered doubtful by the conflicting evidence of the opposite party, is not sufficient to cause the court to direct an issue out of chancery. In a motion to direct an issue in a chancery cause, the affidavit, or affidavits, must show the reason for such direction and call in question the exercise of the sound discretion of the court. Southgate v. Sanford & Brooks Co., 147 Va. 554 , 137 S.E. 485 , 1927 Va. LEXIS 323 (1927).

    It is difficult to see how the affidavit could have been amplified unless it had set out in detail precisely what the witness would have testified to, and this was not required. Eastern Fin. Co. v. Gordon, 179 Va. 674 , 20 S.E.2d 522, 1942 Va. LEXIS 263 (1942).

    Affidavits alone held insufficient grounds for order. —

    It was held that under subsection E, that the mere affidavits of parties and counsel that the case will be rendered doubtful by conflicting evidence, is not sufficient to warrant a chancellor in ordering an issue. Stevens v. Duckett, 107 Va. 17 , 57 S.E. 601 , 1907 Va. LEXIS 5 (1907).

    Where petitioners in their affidavit stated that they would introduce “a large number of witnesses who would contradict the witnesses of the complainant, and that there would result a great conflict in the testimony to be offered by the parties to the suit, presenting issues of fact which are necessary to be determined, out of a mass of conflicting testimony, in order to arrive at a correct decision of the case,” and asked the court to direct an issue out of chancery, the court erred in directing an issue upon this affidavit, and the case should be considered on the merits, as if no issue had been awarded. Bunkley v. Commonwealth, 130 Va. 55 , 108 S.E. 1 , 1921 Va. LEXIS 141 (1921).

    Verdict merely persuasive. —

    The verdict, when an issue out of chancery has been directed, is not binding but is merely persuasive. Harris v. Citizens Bank & Trust Co., 172 Va. 111 , 200 S.E. 652 , 1939 Va. LEXIS 225 (1939).

    But chancellor should generally abide by it. —

    As a general proposition, when an issue is properly ordered it is the practice, unless good cause appears for the contrary course, for the chancellor to abide by the verdict. Bunkley v. Commonwealth, 130 Va. 55 , 108 S.E. 1 , 1921 Va. LEXIS 141 (1921).

    Where no objection was made in trial court to action of the court in directing an issue out of chancery on its own motion, objection for the first time in the appellate court came too late and would not be considered. Twohy v. Harris, 194 Va. 69 , 72 S.E.2d 329, 1952 Va. LEXIS 208 (1952).

    Where parties did not object in trial court, thus in effect agreed to the direction of an issue out of chancery by such court on its own motion, the effect of the verdict on appeal is the same as it would have been had the issue been directed at the instance of one of the parties upon showing of the necessity therefor. Twohy v. Harris, 194 Va. 69 , 72 S.E.2d 329, 1952 Va. LEXIS 208 (1952).

    Standard of review. —

    The settled practice is that when a question of fact is referred to a jury in an issue out of chancery, depending upon conflicting testimony, the verdict approved by the trial court will be affirmed on appeal unless it is palpably and obviously erroneous or without evidence to support it. Twohy v. Harris, 194 Va. 69 , 72 S.E.2d 329, 1952 Va. LEXIS 208 (1952).

    The necessity for an issue out of chancery must plainly appear before the Supreme Court can say that judicial discretion has been abused in not directing it. Harris v. Citizens Bank & Trust Co., 172 Va. 111 , 200 S.E. 652 , 1939 Va. LEXIS 225 (1939).

    CIRCUIT COURT OPINIONS

    Issue out of chancery. —

    Although the jury’s verdict under subsection E of § 8.01-336 is advisory, it does “inform the chancellor’s conscience” of the community’s assessment of the facts of the case, the damages suffered by the plaintiff, and whether the defendants acted in a willful and wanton manner; hence, the court, in the case at hand, relying on the guidance of the jury, found for the plaintiff but reduced the damages awarded. Zimmerman v. Brubaker, 57 Va. Cir. 332, 2002 Va. Cir. LEXIS 212 (Rockingham County Feb. 1, 2002).

    Because there was no indication that the matter would involve facts so evenly balanced that the chancellor would have great difficulty discerning them, the court declined to exercise its discretion to order an issue out of chancery. Carter v. Brooks, 74 Va. Cir. 516, 2008 Va. Cir. LEXIS 54 (Greensville County Mar. 7, 2008).

    Developer was not entitled to a declaratory judgment regarding whether an “Amendment Trigger” occurred under the parties’ Funding Agreement because it was clear that the jury’s answer to an interrogatory regarding that issue constitute an “advisory” verdict, and the evidence established that the parties’ joint venture failed absent any bad faith by the financier. ATK Space Sys. v. US Space LLC, 99 Va. Cir. 46, 2018 Va. Cir. LEXIS 313 (Loudoun County June 21, 2018).

    Affirmative defense of estoppel. —

    Plaintiff was not entitled to a trial by jury in an equitable claim since the assertion made by defendant that she would rely on the affirmative defense of estoppel was a matter that simply would not reduce the litigation to a single point, it could not be raised by a single set of facts, and it would not shorten the litigation. Carter v. Brooks, 74 Va. Cir. 516, 2008 Va. Cir. LEXIS 54 (Greensville County Mar. 7, 2008).

    Waiver of right to jury trial. —

    Business that filed an action in equity alleging that a former employee violated a noncompetition agreement and that the employee’s new employer misappropriated trade secrets waived its right to a jury trial on legal claims asserted in its complaint. Builders Floor Serv. v. Kirby, 60 Va. Cir. 171, 2002 Va. Cir. LEXIS 261 (Fairfax County Sept. 27, 2002).

    Plaintiff waived her right to have a jury decide factual issues raised in defendant’s plea in bar by failing to request a jury, either in writing or orally at the hearing on the plea in bar; accordingly, the court did not deny plaintiff her right to trial by jury when the court granted the plea in bar after conducting an evidentiary hearing without a jury. Absent a jury demand, subsection B of § 8.01-336 authorized the court to hear and rule on the plea in bar. Painter v. Singh, 73 Va. Cir. 77, 2007 Va. Cir. LEXIS 32 (Fairfax County Mar. 12, 2007).

    No right to jury trial. —

    Father did not have a right to a jury trial of his appeal from his civil contempt conviction and sentence for failure to pay child support as the father did not plead a set of facts indicating that a single set of facts or circumstances, if proven, constituted an absolute defense. McGann v. Royer, 66 Va. Cir. 483, 2003 Va. Cir. LEXIS 365 (Amherst County Feb. 21, 2003).

    Article 2. Jurors.

    § 8.01-337. Who liable to serve as jurors.

    All citizens over 18 years of age who have been residents of the Commonwealth one year, and of the county, city, or town in which they reside six months next preceding their being summoned to serve as such, and competent in other respects, except as hereinafter provided, shall be liable to serve as jurors. No person shall be deemed incompetent to serve on any jury because of blindness or partial blindness. Military personnel of the United States Army, Air Force, Marine Corps, Coast Guard, or Navy shall not be considered residents of this Commonwealth by reason of their being stationed herein.

    History. Code 1950, § 8-208.2; 1973, c. 439; 1977, c. 617; 1987, c. 189; 2014, c. 595.

    Cross references.

    For provisions prohibiting the penalizing of an employee for service on jury panel, see § 18.2-465.1 .

    For provisions relating to trial by jury in criminal cases, see § 19.2-260 et seq.

    The 2014 amendments.

    The 2014 amendment by c. 595 substituted “18” for “eighteen,” inserted “Marine Corps, Coast Guard,” and made minor stylistic changes.

    Law Review.

    For a note, “Invaluable Tool vs. Unfair Use of Private Information: Examining Prosecutors’ Use of Jurors’ Criminal History Records in Voir Dire,” see 56 Wash. & Lee L. Rev. 1079 (1999).

    Research References.

    Ward Wagner, Jr., Art of Advocacy: Jury Selection (Matthew Bender).

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 15.

    CASE NOTES

    Editor’s note.

    Disqualification and exemption provisions nondiscriminatory. —

    Virginia law has many disqualification and exemption provisions for selection to the jury list, none of which are discriminatory. Stephens v. Cox, 449 F.2d 657, 1971 U.S. App. LEXIS 7635 (4th Cir. 1971).

    Some Virginia disqualifications and exemptions, by an entirely impartial operation, may disqualify more African Americans than whites. Stephens v. Cox, 449 F.2d 657, 1971 U.S. App. LEXIS 7635 (4th Cir. 1971).

    Duty to learn who is qualified. —

    Where personal knowledge of the races of persons to be selected for the jury list is a factor, a charge of discrimination may not be avoided by a showing that sufficient qualified African Americans were unknown to the selecting officials. There is a duty to learn who is qualified. The same principle is applicable to the preparation of the list of potential grand jurors. Stephens v. Cox, 449 F.2d 657, 1971 U.S. App. LEXIS 7635 (4th Cir. 1971).

    Token inclusion of African Americans forbidden. —

    The Constitution forbids not only the exclusion of African Americans from jury service, but all discrimination by race. A token inclusion of African Americans is also forbidden. Stephens v. Cox, 449 F.2d 657, 1971 U.S. App. LEXIS 7635 (4th Cir. 1971).

    Prima facie case of racial discrimination. —

    A showing that a substantial disparity exists between the proportion of presumptively qualified African Americans in the general population and their proportion on juries will establish a prima facie case of racial discrimination, if the disparity is coupled either with additional positive indicia of discrimination or with a showing that the selection procedure provides an opportunity for discrimination. Stephens v. Cox, 449 F.2d 657, 1971 U.S. App. LEXIS 7635 (4th Cir. 1971).

    Suggestion of circumstances lawfully accounting for disparity insufficient. —

    Where there are many possible circumstances which, if they exist, might account lawfully for an observed disparity between the number of adult African Americans and the number of African Americans serving on juries in a certain locality, the suggestion of their possible existence is not enough. It must be demonstrated by the Commonwealth when the facts shown prima facie are indicative of discrimination. Stephens v. Cox, 449 F.2d 657, 1971 U.S. App. LEXIS 7635 (4th Cir. 1971).

    Discrimination against women not proved. —

    Where the jury list was properly chosen in accord with this section, the mere absence of women did not constitute proof of purposeful and intentional discrimination. Near v. Commonwealth, 202 Va. 20 , 116 S.E.2d 85, 1960 Va. LEXIS 186 (1960), cert. denied, 365 U.S. 873, 81 S. Ct. 907, 5 L. Ed. 2d 862, 1961 U.S. LEXIS 1430 (1961), cert. denied, 369 U.S. 862, 82 S. Ct. 951, 8 L. Ed. 2d 19, 1962 U.S. LEXIS 1408 (1962); 369 U.S. 862, 82 S. Ct. 951, 8 L. Ed. 2d 19 (1962).

    No error in failure to strike visually impaired juror. —

    Trial court’s failure to strike a potential juror for cause based on the potential juror’s impaired vision did not deny defendant of the right to trial by an impartial jury, because the potential juror was not without sight, the impairment was not obvious to those in the courtroom, and the court stated its intention to make accommodations for the juror. Clarke v. Commonwealth, 2009 Va. App. LEXIS 243 (Va. Ct. App. May 26, 2009).

    § 8.01-338. Who disqualified.

    The following persons shall be disqualified from serving as jurors:

    1. Persons adjudicated incapacitated;
    2. Persons convicted of treason or a felony; or
    3. Any other person under a disability as defined in § 8.01-2 and not included in subdivisions 1 or 2 above.

    History. Code 1950, § 8-208.3; 1973, c. 439; 1977, c. 617; 1997, c. 801.

    REVISERS’ NOTE

    Subsection 3 of former § 8-208.3 has been deleted as no longer applicable. Added is new subsection 3 which disqualifies as jurors all persons under a disability as defined in § 8.01-2 , which is obviously broader in coverage than the former disqualification.

    Law Review.

    For comment on rights of the convicted felon on parole, see 13 U. Rich. L. Rev. 367 (1979).

    For note, “A Jury of One’s Peers: Virginia’s Restoration of Rights Process and Its Disproportionate Effect on the African American Community,” see 46 Wm. & Mary L. Rev. 2109 (2005).

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 15.

    CASE NOTES

    No showing of “probable injustice.” —

    Although two convicted felons served on defendant’s jury, trial court was not required to set aside verdict and grant him a new trial for no evidence was presented to the court to suggest that the two jurors’ legal disability as felons would probably cause injustice to the defendant. Mighty v. Commonwealth, 17 Va. App. 495, 438 S.E.2d 495, 10 Va. Law Rep. 678, 1993 Va. App. LEXIS 639 (1993).

    CIRCUIT COURT OPINIONS

    Right to serve on jury. —

    Defendant was not entitled to an order requiring the clerk of the court to disclose the juror questionnaires and the responses to those questionnaires of a juror list because felons whose right to serve on juries were purportedly restored by an order of the Governor of Virginia were not eligible when the jury questionnaires were distributed. Commonwealth v. Broce, 92 Va. Cir. 412, 2016 Va. Cir. LEXIS 82 (Augusta County June 6, 2016).

    OPINIONS OF THE ATTORNEY GENERAL

    Person convicted of perjury. —

    A person convicted of perjury may serve as a juror after his political rights have been restored by the governor. See opinion of Attorney General to The Honorable J. Jack Kennedy, Jr., Clerk of the Circuit Court, Wise County & City of Norton, 12-095, 2012 Va. AG LEXIS 42 (11/16/2012).

    § 8.01-339. No person eligible for whom request is made.

    No person shall be eligible to serve on any jury when he, or any person for him, solicits or requests a jury commissioner to place his name in a jury box or in any way designate such person as a juror.

    History. Code 1950, § 8-208.4; 1973, c. 439; 1977, c. 617.

    § 8.01-340. No person to serve who has case at that term.

    No person shall be admitted to serve as a juror at a term of a court during which he has any matter of controversy which has been or is expected to be tried by a jury during the same term.

    History. Code 1950, § 8-208.5; 1973, c. 439; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 15.

    § 8.01-341. Who are exempt from jury service.

    The following shall be exempt from serving on juries in civil and criminal cases:

    1. The President and Vice President of the United States,
    2. The Governor, Lieutenant Governor and Attorney General of the Commonwealth,
    3. The members of both houses of Congress,
    4. The members of the General Assembly, while in session or during a period when the member would be entitled to a legislative continuance as a matter of right under § 30-5,
    5. Licensed practicing attorneys,
    6. The judge of any court, members of the State Corporation Commission, members of the Virginia Workers’ Compensation Commission, and magistrates,
    7. Sheriffs, deputy sheriffs, state police, and police in counties, cities and towns,
    8. The superintendent of the penitentiary and his assistants and the persons composing the guard,
    9. Superintendents and jail officers, as defined in § 53.1-1, of regional jails.

    History. Code 1950, § 8-208.6; 1973, c. 439; 1977, cc. 458, 617; 1978, cc. 176, 340; 1980, c. 535; 1982, c. 315; 1987, c. 256; 1990, c. 758; 1993, c. 572; 1998, c. 83.

    Editor’s note.

    Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the Code Commission has given effect, in this section, to the amendment to former § 8-208.6, corresponding to this section, by Acts 1977, c. 458. The amendment deleted subdivisions 10 through 13, 18, 22, 23, 26 and 27. All of the classes exempted in the deleted subdivisions are included as optional exemptions in § 8.01-341.1 , also enacted by Acts 1977, c. 458.

    Law Review.

    For comment, “The Questionable Validity of the Automatic Exemption of Attorneys from Jury Service,” see 14 U. Rich. L. Rev. 837 (1980).

    For article, “Improving the Jury System in Virginia: Jury Patriotism Legislation Is Needed,” 11 Geo. Mason L. Rev. 657 (2003).

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 16.

    CASE NOTES

    Disqualification and exemption provisions nondiscriminatory. —

    Virginia law has many disqualification and exemption provisions for selection to the jury list, none of which are discriminatory. Stephens v. Cox, 449 F.2d 657, 1971 U.S. App. LEXIS 7635 (4th Cir. 1971) (decided under prior law).

    Some of the Virginia disqualifications and exemptions, by an entirely impartial operation, may disqualify more African Americans than whites. Stephens v. Cox, 449 F.2d 657, 1971 U.S. App. LEXIS 7635 (4th Cir. 1971) (decided under prior law).

    OPINIONS OF THE ATTORNEY GENERAL

    Licensed practicing attorney. —

    While subdivision 5 of § 8.01-341 provides an exemption from jury service for licensed practicing attorneys, it does not bar lawyers from serving on a jury when a lawyer is willing to waive the exemption. For the purpose of subdivision 5 of § 8.01-341 , a “licensed practicing attorney” is a person licensed to practice law in any state or territory of the United States, including the District of Columbia, who is engaged in the active practice of law. See opinion of Attorney General to The Honorable Paul Ferguson, Clerk of the Circuit Court, Arlington County, 12-030, 2012 Va. AG LEXIS 16 (5/18/12).

    § 8.01-341.1. Exemptions from jury service upon request.

    Any of the following persons may serve on juries in civil and criminal cases but shall be exempt from jury service upon his request:

    1. through 3. [Repealed.]

    4. A mariner actually employed in maritime service;

    5. through 7. [Repealed.]

    8. A person who has legal custody of and is necessarily and personally responsible for a child or children 16 years of age or younger requiring continuous care by him during normal court hours, or any mother who is breast-feeding a child;

    9. A person who is necessarily and personally responsible for a person having a physical or mental impairment requiring continuous care by him during normal court hours;

    10. Any person over 70 years of age;

    11. Any person whose spouse is summoned to serve on the same jury panel;

    12. Any person who is the only person performing services for a business, commercial or agricultural enterprise and whose services are so essential to the operations of the business, commercial or agricultural enterprise that such enterprise must close or cease to function if such person is required to perform jury duty;

    13. Any person who is the only person performing services for a political subdivision as a firefighter, as defined in § 65.2-102 , and whose services are so essential to the operations of the political subdivision that such political subdivision will suffer an undue hardship in carrying out such services if such person is required to perform jury duty;

    14. Any person employed by the Office of the Clerk of the House of Delegates, the Office of the Clerk of the Senate, the Division of Legislative Services, and the Division of Legislative Automated Systems; however, this exemption shall apply only to jury service starting (i) during the period beginning 60 days prior to the day any regular session commences and ending 30 days after the day of adjournment of such session and (ii) during the period beginning seven days prior to the day any reconvened or special session commences and ending seven days after the day of adjournment of such session;

    15. Any general registrar, member of a local electoral board, or person appointed or employed by either the general registrar or the local electoral board, except officers of election appointed pursuant to Article 5 (§ 24.2-115 et seq.) of Chapter 1 of Title 24.2; however, this exemption shall apply only to jury service starting (i) during the period beginning 90 days prior to any election and continuing through election day, (ii) during the period to ascertain the results of the election and continuing for 10 days after the local electoral board certifies the results of the election under § 24.2-671 or the State Board of Elections certifies the results of the election under § 24.2-679 , or (iii) during the period of an election recount or contested election pursuant to Chapter 8 (§ 24.2-800 et seq.) of Title 24.2. Any officer of election shall be exempt from jury service only on election day and during the periods set forth in clauses (ii) and (iii); and

    16. Any member of the armed services of the United States or the diplomatic service of the United States appointed under the Foreign Service Act (22 U.S.C. § 3901 et seq.) who will be serving outside of the United States at the time of such jury service.

    History. Code 1970, § 8-208.6:1; 1977, c. 458; 1987, c. 256; 1997, c. 693; 1999, c. 153; 2004, c. 106; 2005, c. 195; 2011, cc. 389, 708; 2012, c. 98.

    The number of this section was assigned by the Virginia Code Commission, the number in the 1977 act having been 8-208.6:1.

    The 1999 amendment rewrote the introductory paragraph, which formerly read: “The following may claim exemptions from serving on juries in civil and criminal cases,” and substituted “A mariner” for “Mariners” in subdivision 4.

    The 2004 amendments.

    The 2004 amendment by c. 106 substituted “16” for “sixteen” in subdivision 8; substituted “70” for “seventy” in subdivision 10; and added subdivision 13.

    The 2005 amendments.

    The 2005 amendment by c. 195 added “or any mother who is breast-feeding a child” to the end of subdivision 8.

    The 2011 amendments.

    The 2011 amendment by c. 389 added subdivision 13 and redesignated former subdivision 13 as subdivision 14.

    The 2011 amendment by c. 708 added subdivision 14, which was subsequently renumbered as subdivision 15 at the direction of the Virginia Code Commission.

    The 2012 amendments.

    The 2012 amendment by c. 98 added subdivision 16.

    Law Review.

    For comment, “The Questionable Validity of the Automatic Exemption of Attorneys From Jury Service,” see 14 U. Rich. L. Rev. 837 (1980).

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 16.

    § 8.01-341.2. Deferral or limitation of jury service for particular occupational inconvenience or for persons who have legal custody and are responsible for a child.

    The court, at the request of a person selected for jury service or on its own motion, may exempt any person from jury service for a particular term of court, or limit that person’s service to particular dates of that term, if serving on a jury during that term or certain dates of that term of court would cause such person a particular occupational inconvenience. Any such person who is selected for jury service, and who is exempted under the provisions of this section, shall not be discharged from his obligation to serve on a jury, but such obligation shall only be deferred until the term of court next after such particular occupational inconvenience ends. For purposes of this section, “occupational inconvenience” includes inconvenience to a person (i) who, during the term of court for which such person is selected for jury service, is enrolled as a full-time student at an accredited public or private institution of higher education and who is attending classes at such institution during such term and (ii) who has legal custody of and is necessarily and personally responsible for a child or children 16 years of age or younger requiring continuous care by him during normal court hours. The provisions of this section shall not interfere with the exemption available under subdivision 8 of § 8.01-341.1 .

    History. 1981, c. 108; 1987, c. 155; 2018, c. 259; 2019, c. 518.

    The 2018 amendments.

    The 2018 amendment by c. 259 added the last sentence.

    The 2019 amendments.

    The 2019 amendment by c. 518 inserted “at the request of a person selected for jury service or” in the first sentence, inserted the clause (i) designation and added clause (ii) in the third sentence, added the fourth sentence; and made stylistic changes.

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 16.

    CASE NOTES

    Privilege is personal to juror and unrelated to employer’s inconvenience. —

    The privilege afforded by this section, one the statute makes available at the discretion of the trial court, is purely personal to the prospective juror and altogether unrelated to the inconvenience suffered by the person’s employer. Mu'Min v. Commonwealth, 239 Va. 433 , 389 S.E.2d 886, 6 Va. Law Rep. 1655, 1990 Va. LEXIS 47 (1990), aff'd, 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d 493, 1991 U.S. LEXIS 3019 (1991).

    § 8.01-342. Restrictions on amount of jury service permitted.

    1. The jury commissioners shall not include on the jury list provided for in § 8.01-345 the name of any person who has been called and reported to any state court for jury duty at any time during the period of three years next preceding the date of completion of such jury list.
    2. If such person has been called and reported for jury duty in the trial of any case, either civil or criminal, at any one term of a court, he shall not be permitted to serve as a juror in any civil or criminal case, at any other term of that court during the three-year period set forth in subsection A of this section, unless all the persons whose names are in the jury box have been drawn to serve during such three-year period; however, such person shall be permitted to serve on any special jury ordered pursuant to § 8.01-362 and on any grand jury.

    History. Code 1950, §§ 8-208.7, 8-208.10; 1973, c. 439; 1974, c. 369; 1977, cc. 451, 617; 1984, c. 165; 1992, c. 312; 1994, c. 27.

    REVISERS’ NOTE

    Subsections A and B of § 8.01-342 combine the last paragraph of former § 8-208.10 and the first paragraph of former § 8-208.7, respectively. Minor language changes have been made for clarity and are not intended to alter the substance of the former sections.

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, §§ 15, 30.

    Article 3. Selection of Jurors.

    § 8.01-343. Appointment of jury commissioners.

    The judge of each circuit court in which juries are impaneled shall, prior to the first day of July in each year, appoint for the next ensuing year ending on the following first day of July not less than two nor more than 15 persons as jury commissioners, who shall be competent to serve as jurors under the provisions of this chapter, and shall be citizens of intelligence, morality, and integrity. The judge of the circuit court of a county having the urban county executive form of government may appoint jury commissioners at any time prior to the first day of November in each year. Any one judge of the judicial circuit may make such appointment under this section. No practicing attorney-at-law, however, shall be appointed as a jury commissioner. Such appointment shall be certified by the judge to the clerk of the court for which the appointment is made, who shall enter the same on the civil order book of such court. A jury commissioner shall be eligible for reappointment. For the purpose of this section, the two divisions of the Circuit Court of the City of Richmond shall be deemed to be separate courts.

    History. Code 1950, § 8-208.8; 1973, c. 439; 1977, c. 617; 1979, c. 269; 1996, c. 332; 1999, c. 221; 2000, c. 251; 2006, c. 306; 2009, c. 790; 2016, c. 177.

    The 1999 amendment substituted “fifteen” for “nine” in the first sentence.

    The 2000 amendments.

    The 2000 amendment by c. 251 substituted “July” for “October” twice in the first sentence.

    The 2006 amendments.

    The 2006 amendment by c. 306 substituted “civil” for “common law” in the fourth sentence.

    The 2009 amendments.

    The 2009 amendment by c. 790 inserted the second sentence.

    The 2016 amendments.

    The 2016 amendment by c. 177 substituted “15” for “fifteen” in the first sentence and rewrote the next-to-last sentence, which read “No jury commissioner shall be eligible to reappointment for at least three years after the expiration of the year for which he was appointed.”

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 18.

    § 8.01-344. Notification of jury commissioners; their oath.

    Such commissioners shall be immediately notified of their appointment by the clerk, and before entering upon the discharge of their duties shall take and subscribe an oath or affirmation before the clerk of such court in the following form: “I do solemnly swear (or affirm) that I will honestly, without favor or prejudice, perform the duties of jury commissioner during the year; that in selecting persons to be drawn as jurors, I will not select any person I believe to be disqualified or exempt from serving as a juror; that I will select none whom I have been requested to select; and that in all my selections I will endeavor to promote only the impartial administration of justice.”

    History. Code 1950, § 8-208.9; 1973, c. 439; 1977, c. 617.

    Law Review.

    For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 18.

    CASE NOTES

    Constitutionality. —

    The jury selection process under former § 8-181 was not unconstitutional on its face. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973) (decided under prior law).

    Section insures selection of truly representative jury. —

    If the command of this section is obeyed as the solemn oath dictates, it insures selection of a jury truly representative of the community, and constitutional requirements are satisfied. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973) (decided under prior law).

    Selection of cross-section required. —

    Nothing in this section prevents the commissioners from selecting jurors who represent a cross-section of the population of the community suitable in intelligence and honesty for that duty. To the contrary, the commissioners are required, in the performance of their duty, to select prospective jurors who represent a cross-section of the community. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973) (decided under prior law).

    Commissioners not permitted to select only persons personally known to them. —

    There is no language in the jury commissioners’ oath which states that the commissioners are required or permitted to select only those persons who are personally known to them. The duty of the commissioners is to select only those persons whom they “believe to be of good repute for intelligence and honesty.” This belief may come from any number of reliable sources in the community where prospective jurors reside. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973) (decided under prior law).

    § 8.01-345. Lists of qualified persons to be prepared by jury commissioners; random selection process.

    The commissioners shall, not later than December 1 following their appointment, submit a list showing the names, addresses, freeholder status and, if available, the occupations of such of the inhabitants of their respective counties or cities as are well qualified under § 8.01-337 to serve as jurors and are not excluded or exempt by §§ 8.01-338 to 8.01-341 and 8.01-342 . Such master jury list shall be used in selecting jurors for a twelve-month period beginning on the first day of the first term of court in the calendar year next succeeding December 1. The number of persons selected for each court shall be as specified in the order appointing the commissioners.

    The jury commissioners shall utilize random selection techniques, either manual, mechanical or electronic, using a current voter registration list and, where feasible, a list of persons issued a driver’s license as defined in § 46.2-100 from the Department of Motor Vehicles, city or county directories, telephone books, personal property tax rolls, and other such lists as may be designated and approved by the chief judge of the circuit, to select the jurors representative of the broad community interests, to be placed on the master jury list. The commissioners shall make reasonable effort to exclude the names of deceased persons and unqualified persons from the master jury list. After such random selection, the commissioners shall apply such statutory exceptions and exemptions as may be applicable to the names so selected. The chief judge shall promulgate such procedural rules as are necessary to ensure the integrity of the random selection process and to ensure compliance with other provisions of law with respect to jury selection and service.

    Where a city and county adjoin, in whole or in part, the names of the inhabitants of a city shall not be placed upon the county list, nor those of a county upon the city list except in those cases in which the circuit court of the county and the circuit court of the city have concurrent jurisdiction of both civil and criminal cases arising within the territorial limits of such county or city. However, in the case of the City of Franklin and the County of Southampton, the number of jurors selected from Southampton County shall be proportionate to the number of jurors selected from the City of Franklin based upon the respective populations of the county and city.

    History. Code 1950, § 8-208.10; 1973, c. 439; 1974, c. 369; 1977, cc. 451, 617; 1978, c. 209; 1979, c. 665; 1983, c. 107; 1984, c. 50; 1989, cc. 616, 632; 1990, c. 758; 2000, c. 828; 2007, cc. 450, 720.

    REVISERS’ NOTE

    Section 8.01-345 is largely identical with former § 8-208.10 with the following change: The former statute required the prior authorization of the chief judge of the circuit in order for the jury commissioners to use random selection techniques, and then the use of such techniques was merely permissible. Section 8.01-345 dispenses with the prior authority of the chief judge and makes the use of random selection techniques mandatory upon the commissioners. The duty of the chief judge to promulgate procedural rules to ensure the integrity of the random selection process and compliance with other laws with respect to jury selection and service is retained.

    The last paragraph of the former statute has been transferred to present § 8.01-342 , as it appeared to be more closely related to the subject matter of that section.

    Editor’s note.

    Former § 8-208.10, corresponding to this section, was amended by Acts 1977, c. 451. Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, that amendment was deemed to have amended this section.

    The 2000 amendments.

    The 2000 amendment by c. 828 added the present second sentence in the second paragraph.

    The 2007 amendments.

    The 2007 amendments by cc. 450 and 720 are identical, and inserted “freeholder status” following “the names, addresses” in the first sentence in the first paragraph.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 19.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Denial of motion to strike jury panel proper. —

    There was no manifest error in the trial court’s denial of defendant’s motion to strike the jury panel because defendant could not establish either an irregularity in the jury selection process or a violation of his right to a jury selected from a fair cross-section of the community; he offered no proof that young individuals, white individuals, or males were more likely to complete their questionnaires before older individuals, African-American individuals, or females. Rogers v. Commonwealth, 2009 Va. App. LEXIS 384 (Va. Ct. App. Sept. 1, 2009), cert. denied, 562 U.S. 1071, 131 S. Ct. 663, 178 L. Ed. 2d 495, 2010 U.S. LEXIS 9319 (2010).

    Evidence was insufficient to establish prima facie case of racial discrimination. —

    Where the evidence adduced showed that jury commissioners never hand-picked jurors, where the jury selection process in county was done by random computer selection from the voter registration list, where the voter registration list did not indicate the race of the prospective jurors and jury commissioners had no way of knowing the race of prospective jury members until they arrived, and where this section sets out the procedure for jury selection and no evidence suggested that this selection process was not followed, based on this evidence, appellant failed to show intentional racial discrimination or that the juror selection process left open this opportunity, and therefore, appellant’s evidence was insufficient to establish a prima facie case of racial discrimination. Moats v. Commonwealth, 12 Va. App. 349, 404 S.E.2d 244, 7 Va. Law Rep. 2441, 1991 Va. App. LEXIS 77 (1991).

    II.Decisions Under Prior Law.

    Editor’s note.

    The cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refer to former provisions.

    Statutory provisions with respect to empaneling juries are mandatory and not directory. Harmon v. Commonwealth, 212 Va. 442 , 185 S.E.2d 48, 1971 Va. LEXIS 370 (1971).

    There is a constitutional right to a jury drawn from a group which represents a cross section of the community. And a cross section of the community includes persons with varying degrees of training and intelligence and with varying economic and social positions. Under the United States Constitution, the jury is not to be made the representative of the most intelligent, the most wealthy or the most successful, nor of the least intelligent, the least wealthy, or the least successful. It is a democratic institution, representative of all qualified classes of people. Witcher v. Peyton, 405 F.2d 725, 1969 U.S. App. LEXIS 9388 (4th Cir. 1969).

    And selection must accord with this. —

    Section of jurors must always accord with the fact that the proper functioning of the jury system, and, indeed, our democracy itself, requires that the jury be a body truly representative of the community, and not the organ of any special group or class. If that requirement is observed, the officials charged with choosing jurors may exercise some discretion to that end that competent jurors may be called. But they must not allow the desire for competent jurors to lead them into selections which do not comport with the concept of the jury as a cross section of the community. Tendencies, no matter how slight, toward the selection of jurors by any method other than a process which will insure a trial by a representative group are undetermining processes weakening the institution of jury trial, and should be sturdily resisted. That the motives influencing such tendencies may be of the best must not blind courts to the dangers of allowing any encroachment whatsoever on this essential right. Steps innocently taken may one by one lead to the irretrievable impairment of substantial liberties. Witcher v. Peyton, 405 F.2d 725, 1969 U.S. App. LEXIS 9388 (4th Cir. 1969).

    In the selection of juries recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury. Witcher v. Peyton, 405 F.2d 725, 1969 U.S. App. LEXIS 9388 (4th Cir. 1969).

    Admission of discrimination not needed to attack jury selection procedure. —

    It is not necessary to a successful attack upon a jury selection procedure that petitioner obtain an admission from the judge and jury commissioners that they have discriminated. Witcher v. Peyton, 405 F.2d 725, 1969 U.S. App. LEXIS 9388 (4th Cir. 1969).

    CIRCUIT COURT OPINIONS

    Service by felons on jury. —

    Defendant was not entitled to an order requiring the clerk of the court to disclose the juror questionnaires and the responses to those questionnaires of a juror list because felons whose right to serve on juries were purportedly restored by an order of the Governor of Virginia were not eligible when the jury questionnaires were distributed. Commonwealth v. Broce, 92 Va. Cir. 412, 2016 Va. Cir. LEXIS 82 (Augusta County June 6, 2016).

    § 8.01-346. Lists to be delivered to clerk and safely kept by him; addition and removal of names.

    The list so prepared shall be delivered to the clerk of the court to be safely kept by him. The list shall include a notation indicating those persons who are freeholders. The judge may from time to time order the commissioners to add to the list such additional number of jurors as the court shall direct and to strike therefrom any who have become disqualified or exempt.

    History. Code 1950, § 8-208.11; 1973, c. 439; 1977, c. 617; 2007, cc. 450, 720.

    The 2007 amendments.

    The 2007 amendments by cc. 450 and 720 are identical, and inserted the second sentence.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 19.

    CASE NOTES

    Editor’s note.

    This section is not unconstitutional on its face. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973).

    The jury list is a secret document which is not open to public inspection. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973).

    The proper administration of justice requires that the jury list be kept secret until the jurors drawn for service, unless good cause be shown. The jury list is in no sense a public record to be exposed to the general public. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973).

    And it cannot be examined except for good cause shown. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973).

    Nothing in this section deprives the judge of the court in the exercise of his discretion, where good cause is shown, to permit an examination of the jury list. But it cannot be inferred that the jury list shall be opened for inspection to members of the bar or private citizens without assigning good and sufficient reasons therefor. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973).

    Thus, the right of access to official records allowed under the Freedom of Information Act does not include jury lists. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973).

    § 8.01-347. How names put in jury box.

    When such list is made out, the commissioners shall cause all the names thereon to be fairly written, each on a separate paper or ballot, and shall so fold or roll up the ballots that they will resemble each other as nearly as may be and the names written thereon will not be visible on the outside, and shall deposit the ballots with the list in a secure box prepared for that purpose. Such box shall be locked and safely kept by the clerk of such court and opened only by the direction of the judge thereof.

    History. Code 1950, § 8-208.12; 1973, c. 439; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 19.

    CASE NOTES

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    This section is not unconstitutional on its face. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973).

    The jury list is a secret document which is not open to public inspection. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973).

    The proper administration of justice requires that the jury list be kept secret until the jurors are drawn for service, unless good cause be shown. The jury list is in no sense a public record to be exposed to the general public. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973).

    And it cannot be examined except for good cause shown. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973).

    Nothing in the statutes deprives the judge of the court in the exercise of his discretion, where good cause is shown, to permit an examination of the jury list. But it cannot be inferred that the jury list shall be opened for inspection to members of the bar or private citizens without assigning good and sufficient reasons therefor. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973).

    Thus, the right of access to official records allowed under the Freedom of Information Act does not include jury lists. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707, 1973 Va. LEXIS 199 (1973).

    Denial of access did not result in error. —

    With regard to defendant’s convictions on two capital murder counts and the imposition of two death sentences against him, the trial court did not err by denying defendant access to the jury pool lists because he was not prejudiced by not having access to the lists since he failed to establish that there was any constitutionally significant underrepresentation of a distinctive group in the venire from which his jury would be selected and, without such underrepresentation, he could not make a claim of systematic exclusion. Prieto v. Commonwealth, 283 Va. 149 , 721 S.E.2d 484, 2012 Va. LEXIS 20, cert. denied, 568 U.S. 871, 133 S. Ct. 244, 184 L. Ed. 2d 129, 2012 U.S. LEXIS 6641 (2012).

    § 8.01-348. How names of jurors drawn from box.

    Prior to or during any term of court at which a jury may be necessary, the clerk or deputy clerk, in the presence of the judge or, in his absence, a commissioner in chancery appointed for the purpose by the judge, shall, after thoroughly mixing the ballots in the box, openly draw therefrom such number of ballots as are necessary for the trial of all cases during the term or as the judge shall direct. However, a commissioner shall not be eligible to witness the drawing of a jury to be used in the trial of any case in which he will be interested as attorney or otherwise.

    History. Code 1950, § 8-208.13; 1973, c. 439; 1977, c. 617; 1983, c. 425.

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, §§ 20, 26, 48.

    CASE NOTES

    Statutory provisions with respect to empaneling juries are mandatory and not directory. Harmon v. Commonwealth, 212 Va. 442 , 185 S.E.2d 48, 1971 Va. LEXIS 370 (1971) (decided under prior law).

    § 8.01-349. Notations on ballots drawn; return to box; when such ballots may be drawn again.

    If any ballot drawn from the box shall bear the name of a person known by the clerk or other person attending the drawing to be deceased, exempt or disqualified by law, not a resident of the county or city, or physically or mentally incapacitated for jury service, an appropriate notation on the ballot, as well as opposite the name of such person on the jury list, shall be made and the ballot shall be placed by the clerk in an envelope kept for that purpose. The other ballots, marked “drawn,” shall be placed in a separate envelope and a notation of the date of the drawing shall be made on the jury list opposite the name of each juror drawn. The envelope shall be kept in the box. After all ballots have been drawn from the box, the ballots marked “drawn” may be again drawn subject to the provisions hereof applying to the original drawing.

    History. Code 1950, § 8-208.14; 1973, c. 439; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 20.

    § 8.01-350. Repealed by Acts 1977, c. 451.

    Cross references.

    For present statute covering selection of jurors by mechanical or electronic means, see § 8.01-350.1 .

    Editor’s note.

    Acts 1977, c. 451, repealed former § 8-208.14:1, corresponding to § 8.01-350 as enacted by Acts 1977, c. 617. Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the Code Commission has treated Acts 1977, c. 451, as repealing § 8.01-350 .

    § 8.01-350.1. Selection of jurors by mechanical or electronic techniques for the term of court.

    Notwithstanding the provisions of §§ 8.01-347 through 8.01-349 , the chief judge may order that selection of the list of jurors necessary for the trial of all cases during any term of court for that year be made by the use of random selection techniques, either mechanically or electronically, from the list submitted pursuant to § 8.01-345 .

    History. 1978, c. 400.

    § 8.01-351. Preparation and disposition of list of jurors drawn.

    The clerk shall make and sign a list of the names on the ballots in alphabetical order showing the name, age, address, occupation and employer of each juror, and shall deliver an attested copy of the list to the sheriff. The list shall be signed also by the judge or the commissioner in chancery appointed by the judge. The list shall be available in the clerk’s office for inspection by counsel in any case to be tried by a jury during the term.

    History. Code 1950, § 8-208.15; 1973, c. 439; 1977, c. 617; 1988, c. 818.

    Michie’s Jurisprudence.

    For related discussion, see 5B M.J. Criminal Procedure, § 23.

    OPINIONS OF THE ATTORNEY GENERAL

    Inspection of term jury list. —

    Only counsel of record has the right to view a term jury list. Copying of the list by counsel is permitted only by leave of court upon a showing of good cause. See opinion of Attorney General to The Honorable Jeff Small, Clerk, City of Fredericksburg Circuit Court, 15-023, (6/3/16).

    § 8.01-352. Objections to irregularities in jury lists or for legal disability; effect thereof.

    1. Prior to the jury being sworn, the following objections may be made without leave of court: (i) an objection specifically pointing out the irregularity in any list or lists of jurors made by the clerk from names drawn from the jury box, or in the drawing, summoning, returning or impaneling of jurors or in copying or signing or failing to sign the list, and (ii) an objection to any juror on account of any legal disability; after the jury is sworn such objection shall be made only with leave of court.
    2. Unless objection to such irregularity or disability is made pursuant to subsection A herein and unless it appears that the irregularity was intentional or that the irregularity or disability be such as to probably cause injustice in a criminal case to the Commonwealth or to the accused and in a civil case to the party making the objection, then such irregularity or disability shall not be cause for summoning a new panel or juror or for setting aside a verdict or granting a new trial.

    History. Code 1950, §§ 8-208.7, 8-208.27, 8-208.29; 1973, c. 439; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-352 consolidates certain provisions found in former §§ 8-208.7, 8-208.27, and 8-208.29. Under this section, objections to any irregularity in the jury list, etc., or to any legal disability generally must be made before the jury is sworn. Thereafter, such objections may be made only with leave of court. This alters former § 8-208.27 which permits objection only before the jury is sworn. Furthermore, the present section places an objection to a legal disability under former § 8-208.29 on the same footing as an objection to jury list irregularity under former § 8-208.27. The revisers believe that the term “legal disability” is meant to incorporate all exemptions or disqualifications from jury service found in §§ 8.01-338 through 8.01-342 .

    The provision in former § 8-208.7 making it reversible error if the court should permit a juror to serve twice during the one-year period mentioned in § 8.01-342 over the objection of a party, has been eliminated.

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Abatement, Survival and Revival, § 18.

    CASE NOTES

    Statutory provisions with respect to impaneling juries are mandatory and not directory. Harmon v. Commonwealth, 212 Va. 442 , 185 S.E.2d 48, 1971 Va. LEXIS 370 (1971) (decided under prior law).

    Swearing of jury should preclude subsequent exceptions. —

    The completion of the process of selection and the subsequent swearing of the jury should preclude the defendant from thereafter advancing exceptions to the jury. Russell v. Peyton, 278 F. Supp. 804, 1968 U.S. Dist. LEXIS 7895 (W.D. Va. 1968) (decided under prior law).

    Where no objection was made before the jury was sworn, it was incumbent upon the party making objection to show that he was injured by the alleged irregularity in impaneling the jury. Oyler v. Ramsey, 211 Va. 564 , 179 S.E.2d 904, 1971 Va. LEXIS 218 (1971) (decided under prior law).

    After conceding that the jury panel was “without exception,” defendant could not assert on appeal that defendant was denied a fair trial because of media coverage. Teleguz v. Commonwealth, 273 Va. 458 , 643 S.E.2d 708, 2007 Va. LEXIS 64 (2007), cert. denied, 552 U.S. 1191, 128 S. Ct. 1228, 170 L. Ed. 2d 78, 2008 U.S. LEXIS 1412 (2008).

    Challenge after jury empanelled. —

    In a breach of contract action, property owners’ claim that a pool company and its owner did not acquire leave of court to challenge a specific juror after the jurors had been empanelled and therefore the issue was waived under § 8.01-352 was rejected as the trial court considered the challenge to the specific juror as to his impartiality and therefore implicitly granted leave to raise the challenge. Robert M. Seh Co. v. O'Donnell, 277 Va. 599 , 675 S.E.2d 202, 2009 Va. LEXIS 53 (2009).

    Denial of defendant’s Batson challenge was reviewed, despite defendant’s failure to contemporaneously and specifically object to a prosecutor’s peremptory strike, because, when defendant raised the issue seven months later, while not expressly granting defendant leave to make the untimely argument, it was assumed without deciding that the trial court concluded the untimely argument merely amplified a trial argument. Bethea v. Commonwealth, 297 Va. 730 , 831 S.E.2d 670, 2019 Va. LEXIS 101 (2019).

    Erroneous exclusion of all jurors who had served on any felony panel. —

    Section 8.01-355 permits the trial court to excuse any jurors whose names were drawn for service on a particular panel and, thus, authorizes the trial court’s direction to the clerk. The clerk’s misunderstanding of the trial court’s direction and the subsequent exclusion of all jurors who had served on any felony panel in the then-current term was an irregularity under subsection A of this section, which is cured under subsection B of this section, because the exclusion was not intentional, nor did it operate to cause any prejudice to defendant. Accordingly, held no reversible error in the selection of the venire. O'Dell v. Commonwealth, 234 Va. 672 , 364 S.E.2d 491, 4 Va. Law Rep. 1651, 1988 Va. LEXIS 5, cert. denied, 488 U.S. 871, 109 S. Ct. 186, 102 L. Ed. 2d 154, 1988 U.S. LEXIS 3673 (1988).

    Exclusion from jury pool based on juror availability upheld. —

    Trial judge’s exclusion from the jury pool of those who were not available to serve on the four-day trial was not irregular as it did not exclude anyone or any cognizable group. Reeves v. Commonwealth, 42 Va. App. 650, 593 S.E.2d 827, 2004 Va. App. LEXIS 115 (2004).

    No error in failure to strike visually impaired juror. —

    Trial court’s failure to strike a potential juror for cause based on the potential juror’s impaired vision did not deny defendant of the right to trial by an impartial jury, because the potential juror was not without sight, the impairment was not obvious to those in the courtroom, and the court stated its intention to make accommodations for the juror. Clarke v. Commonwealth, 2009 Va. App. LEXIS 243 (Va. Ct. App. May 26, 2009).

    No showing of “probable injustice.” —

    Although two convicted felons served on defendant’s jury, trial court was not required to set aside verdict and grant him a new trial for no evidence was presented to the court to suggest that the two jurors’ legal disability as felons would probably cause injustice to the defendant. Mighty v. Commonwealth, 17 Va. App. 495, 438 S.E.2d 495, 10 Va. Law Rep. 678, 1993 Va. App. LEXIS 639 (1993).

    Record failed to demonstrate that a juror who purportedly lacked proficiency in the English language had a disability which was “such as to probably cause injustice” where challenged juror understood all of the trial court’s questions and the trial court made a factual finding that she had a sufficient level of understanding of the English language which permitted her to participate fully in the jury deliberations. Mason v. Commonwealth, 255 Va. 505 , 498 S.E.2d 921, 1998 Va. LEXIS 68 (1998).

    Juror who served on jury panel in defendant’s arson case did not have a hearing impairment that was so pronounced as to deny defendant a fair trial. A hearing regarding the juror’s impairment showed that the impairment was not such that it probably caused injustice in violation of § 8.01-352 in a case where defendant was convicted on the arson charge. Sloan v. Commonwealth, 2008 Va. App. LEXIS 452 (Va. Ct. App. Oct. 7, 2008).

    A motion for a new trial on the ground of juror misconduct is addressed to the sound discretion of the trial court and, unless there has been abuse of that discretion, the judgment below will not be reversed on appeal. Commercial Union Ins. Co. v. Moorefield, 231 Va. 260 , 343 S.E.2d 329, 1986 Va. LEXIS 141 (1986).

    And court has duty to investigate charges of misconduct. —

    In considering a motion to set aside when juror misconduct is alleged, the trial court has the affirmative duty to investigate the charges and to ascertain whether or not, as a matter of fact, the jury was guilty of such misconduct. Commercial Union Ins. Co. v. Moorefield, 231 Va. 260 , 343 S.E.2d 329, 1986 Va. LEXIS 141 (1986).

    And trial court may properly summon one or more jurors to testify under oath in open court and to answer relevant questions propounded by the court and counsel about what transpired. This is an exception to the general rule that testimony of jurors is inadmissible to impeach their verdict. Ordinarily, jurors will not be allowed to explain their verdict by stating the reasons upon which their conclusions are based. Commercial Union Ins. Co. v. Moorefield, 231 Va. 260 , 343 S.E.2d 329, 1986 Va. LEXIS 141 (1986).

    Hearsay affidavits not admissible in support of motion for new trial. —

    Although juror testimony may be received upon an issue of juror misconduct, hearsay affidavits are not admissible in support of a motion for a new trial. Nevertheless, such an affidavit may be sufficient to require the trial court to investigate the matters recited in the document. Commercial Union Ins. Co. v. Moorefield, 231 Va. 260 , 343 S.E.2d 329, 1986 Va. LEXIS 141 (1986).

    Waiver of peremptory strikes not ground for seating partial panel. —

    Under appropriate circumstances, a waiver of peremptory strikes by one or both parties is helpful and useful to the alleviation of an overcrowded docket. However, where a defendant, as here, has alerted the court to the existence of a potential problem and elects to stand on the statutory mandate of a panel of 20 jurors, he is entitled to a full panel of impartial jurors and may not be required to accept a lesser number simply because the Commonwealth agrees to waive one or more of its peremptory strikes. Fuller v. Commonwealth, 14 Va. App. 277, 416 S.E.2d 44, 8 Va. Law Rep. 2614, 1992 Va. App. LEXIS 113 (1992).

    Counsel failed to provide a racially neutral reason for removing African-American from the venire. Hill v. Berry, 247 Va. 271 , 441 S.E.2d 6, 10 Va. Law Rep. 999, 1994 Va. LEXIS 36 (1994).

    Intentional irregularity not cured. —

    The issuance of writs of venire facias different from what the law prescribes was an intentional irregularity and not within the curative provisions of former § 19.1-201. Harmon v. Commonwealth, 212 Va. 442 , 185 S.E.2d 48, 1971 Va. LEXIS 370 (1971) (decided under prior law).

    Relationship to material witness. —

    Defendant knowingly permitted, without objection, the brother of a material witness to be sworn as a juror, and his motion to discharge the jury was made only after it developed that the witness’s testimony was not in accord with what defendant hoped and thought it would be. Even if the relationship between the juror and the witness were a sufficient reason for disqualifying the juror, defendant’s objection to the qualification of the juror and his motion to discharge the jury came too late. Burks v. Webb, 199 Va. 296 , 99 S.E.2d 629, 1957 Va. LEXIS 191 (1957) (decided under prior law).

    The defendant did not waive its right to insist that a juror be examined, where defendant failed to summon the juror, failed to make explicit, timely demand that the court take such action, and failed to arrange for a hearing at which the juror’s testimony could be presented, but before entry of the new-trial order defendant reminded the trial judge on three occasions that the court had the power to summon the juror, and on two occasions formally moved the court to summon the juror before finally ruling on the motion. Commercial Union Ins. Co. v. Moorefield, 231 Va. 260 , 343 S.E.2d 329, 1986 Va. LEXIS 141 (1986).

    Plaintiff’s motion not waived. —

    Where the trial court implicitly granted plaintiff leave of court to make his motion challenging the impaneling of jurors after the jury was sworn, and the court permitted plaintiff to make his motion, which the court subsequently considered on its merits and denied, plaintiff’s motion was not waived. Hill v. Berry, 247 Va. 271 , 441 S.E.2d 6, 10 Va. Law Rep. 999, 1994 Va. LEXIS 36 (1994).

    The trial court abused its discretion in failing to summon and examine a juror who allegedly heard statements before trial which might have improperly influenced deliberations, where the juror may not have fully heard or clearly understood the statement that a third party said the husband intentionally set fire to his own home, she may have discounted it as purely hearsay and rumor, and, even if she accepted the statement, she may have disregarded it in an effort to be a conscientious juror and to give the parties a fair trial. Commercial Union Ins. Co. v. Moorefield, 231 Va. 260 , 343 S.E.2d 329, 1986 Va. LEXIS 141 (1986).

    An inquiry into the effect of innocent but improper pre-trial statements made to a juror is incomplete when the trial court has not summoned and examined the particular juror to whom the statements were made. Information only from a nonjuror, a person not privy to jury deliberations, is inadequate to form the basis for a conclusion that the jury’s deliberative process was probably tainted by extraneous statements. Commercial Union Ins. Co. v. Moorefield, 231 Va. 260 , 343 S.E.2d 329, 1986 Va. LEXIS 141 (1986).

    Batson challenge properly denied. . —

    Denial of defendant’s Batson challenge in his trial for robbery, was proper because defendant identified no facts or circumstances showing a discriminatory motive in the Commonwealth’s use of peremptory strikes to remove two African-American potential jurors; the record showed that the reason for striking the first potential juror was the same race-neutral reason that explained the striking of a Caucasian juror, and none of the prosecutor’s questions or statements during voir dire indicated he intended to discriminate in the use of his peremptory strikes. As to the second African-American woman struck by the Commonwealth, defendant failed to present a sufficient record to show the alleged error as the record did not reveal her identity, or her voir dire responses, if any. Lightfoot v. Commonwealth, 50 Va. App. 723, 653 S.E.2d 615, 2007 Va. App. LEXIS 443 (2007).

    Court did not err in denying appellant leave to raise issues. —

    In addition to leaving the court an incomplete remedy with respect to the jurors improperly excluded, the untimely motion in this case limited the court’s ability to weigh the expenditure of additional judicial resources and the ensuing, perhaps substantial, delay in the administration of justice, and therefore, the trial court did not abuse its discretion in denying appellant leave to raise Batson issues after the jury was sworn. Lewis v. Commonwealth, 25 Va. App. 745, 492 S.E.2d 492, 1997 Va. App. LEXIS 650 (1997).

    CIRCUIT COURT OPINIONS

    Judge’s decision to consider jurors’ schedules did not deny plaintiff fair and impartial jury in civil suit. —

    Trial court rejected a plaintiff’s argument that it violated state law on jury selection by asking 125 jurors who were selected for the court’s October term who could sit during a specific week in November and selecting 24 jurors from those who raised their hands and held that, even if there was a technical violation of the law, the plaintiff was not entitled to a new trial because she could not show that any irregularity was intentional or that the court’s conduct caused her injustice. Bricker v. Miller, 58 Va. Cir. 305, 2002 Va. Cir. LEXIS 38 (Albemarle County Mar. 7, 2002).

    Article 4. Jury Service.

    § 8.01-353. Notice to jurors; making copy of jury panel available to counsel; objection to notice.

    1. The sheriff shall notify the jurors on the list, or such number of them as the judge may direct to appear in court on such day as the court may direct. Such notice shall be given a juror as provided by § 8.01-298 . Verbal direction given by the judge, or at his direction, to a juror who has been given notice as hereinbefore provided that he appear at a later specified date, shall be a sufficient notice. Any notice given as provided herein shall have the effect of an order of court. No particular time in advance of the required appearance date shall be necessary for verbal notice hereunder, but the court may, in its discretion, excuse from service a juror who claims lack of sufficient notice. Upon request, the clerk or sheriff or other officer responsible for notifying jurors to appear in court for the trial of a case shall make available to all counsel of record in that case, a copy of the jury panel to be used for the trial of the case at least three full business days before the trial. Such copy of the jury panel shall show the name, age, address, occupation and employer of each person on the panel. Any error in the information shown on such copy of the jury panel shall not be grounds for a mistrial or assignable as error on appeal, and the parties in the case shall be responsible for verifying the accuracy of such information.
    2. No judgment shall be arrested or reversed for the failure of the record to show that there was service upon a juror of notice to appear in court unless made a ground of exception in the trial before the jury is sworn.

    History. Code 1950, § 8-208.16; 1973, c. 439; 1974, c. 243; 1976, c. 261; 1977, c. 617; 1980, c. 452; 1981, c. 150; 1988, c. 350; 2010, c. 799.

    REVISERS’ NOTE

    Section 8.01-353 is largely based on former § 8-208.16, but the reference to the term of court is omitted so that the judge may now summon the jurors for the particular day on which their attendance is required. Furthermore, service of the original notice to prospective jurors is to be in accordance with § 8.01-298 .

    Editor’s note.

    Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provided that the enactment of § 8.01-353.01 by Acts 1993, c. 929, cl. 1, would become effective June 1, 1998, “only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth.” The funding was not provided.

    The 2010 amendments.

    The 2010 amendment by c. 799 substituted “three full business days” for “forty-eight hours” in subsection A.

    Law Review.

    For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

    For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, §§ 20, 21, 24, 26, 28, 31, 37, 38.

    CASE NOTES

    Failure to provide timely information concerning panel members not reversible error. —

    The statutory scheme does not contemplate that a full and accurate jury panel list will always be available for counsel forty-eight hours before the trial but recognizes that, under certain circumstances, the members of the actual jury panel necessarily will vary from those persons listed on a jury panel list provided forty-eight hours before trial. A trial court thus did not err in reconstituting a jury panel due to the limited number of potential jurors available where there was no dispute as to the need to reconstitute the panel and where there was no claim that the resulting jury was not impartial or that the complaining party was otherwise prejudiced. Norfolk S. Ry. v. Bowles, 261 Va. 21 , 539 S.E.2d 727, 2001 Va. LEXIS 8 (2001).

    Where defense counsel was given time to review the list of the members on the new jury panel and then voiced no specific need for additional time to investigate any particular juror, defendant failed to show any specific prejudice amounting to a denial of due process even though defense counsel did not receive a copy of the new jury panel list at least 48 hours prior to trial. Butler v. Commonwealth, 264 Va. 614 , 570 S.E.2d 813, 2002 Va. LEXIS 158 (2002).

    Copy of jury panel. —

    Trial court did not err by denying defendant’s motion to continue trial when copy of jury panel had not been made available to defense counsel at least 48 hours before trial where circumstances required reconstitution of jury panel. Butler v. Commonwealth, 2001 Va. App. LEXIS 668 (Va. Ct. App. Dec. 11, 2001), aff'd, 264 Va. 614 , 570 S.E.2d 813, 2002 Va. LEXIS 158 (2002).

    Provisions regarding counsels’ right to receive a copy of the jury panel list at least 48 hours prior to trial is directory rather than mandatory, and a failure to comply with those provisions is not a per se basis for reversing a trial court’s judgment in either a civil or a criminal case; rather, adherence to the provisions of § 8.01-353 is required to the extent necessary to insure due process. Butler v. Commonwealth, 264 Va. 614 , 570 S.E.2d 813, 2002 Va. LEXIS 158 (2002).

    The statutory provisions with respect to empaneling juries are mandatory and not directory. Harmon v. Commonwealth, 212 Va. 442 , 185 S.E.2d 48, 1971 Va. LEXIS 370 (1971) (decided under corresponding provisions of former law).

    § 8.01-353.1. Jurors to provide identification.

    At the time of assembly for the purpose of juror selection, the identity of each member of the jury venire shall be verified as provided in this section. Prior to being selected from the jury venire, a potential juror shall verify his identity by presenting to the person taking jury attendance any of the following forms of identification: his Commonwealth of Virginia voter registration card; his social security card; his valid Virginia driver’s license or any other identification card issued by a government agency of the Commonwealth, one of its political subdivisions, or the United States; or any valid employee identification card containing a photograph of the juror and issued by an employer of the juror in the ordinary course of the employer’s business. If the juror is unable to present one of these forms of identification, he shall sign a statement affirming, under penalty of perjury, that he is the named juror.

    History. 2010, c. 765; 2011, c. 470.

    The 2011 amendments.

    The 2011 amendment by c. 470, in the first sentence, deleted “the clerk of the court shall ensure that” preceding “the identity” and substituted “shall be verified” for “is verified”; and in the second sentence, substituted “presenting to the person taking jury attendance” for “presenting to the clerk of court upon request.”

    § 8.01-354. “Writ of venire facias” defined.

    The term “writ of venire facias” for the purpose of this chapter shall be construed as referring to the list or lists of jurors made by the clerk from names drawn from the jury box and notice to appear in court served or mailed as provided herein shall be equivalent to summoning such juror in execution of a writ of venire facias.

    History. Code 1950, § 8-208.24; 1973, c. 439; 1976, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 20.

    § 8.01-355. Jurors on list to be used for trial of cases during term; discharge or dispensing with attendance of jurors; drawing additional jurors.

    Jurors whose names appear in the list provided for under §§ 8.01-348 and 8.01-351 shall be used for the trial of cases, civil and criminal, to be tried during the term. The judge shall direct the selection of as many jurors as may be necessary to appear for the trial of any case. Any court shall have power to discharge persons summoned as jurors therein, or to dispense with their attendance on any day of its sitting. When by reason of challenge or otherwise a sufficient number of jurors summoned cannot be obtained for the trial of any case, the judge may select from the names on the jury list provided for by § 8.01-345 the names of as many persons as he deems necessary and cause them to be summoned to appear forthwith for the trial.

    History. Code 1950, § 8-208.17; 1973, c. 439; 1975, c. 359; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, §§ 20, 21, 24, 25, 30, 48.

    CASE NOTES

    Erroneous exclusion of all jurors who had served on any felony panel. —

    This section permits the trial court to excuse any jurors whose names were drawn for service on a particular panel and, thus, authorizes the trial court’s direction to the clerk. The clerk’s misunderstanding of the trial court’s direction and the subsequent exclusion of all jurors who had served on any felony panel in the then-current term was an irregularity under subsection A of § 8.01-352 , which is cured under subsection B of § 8.01-352 , because the exclusion was not intentional, nor did it operate to cause any prejudice to defendant. Accordingly, held no reversible error in the selection of the venire. O'Dell v. Commonwealth, 234 Va. 672 , 364 S.E.2d 491, 4 Va. Law Rep. 1651, 1988 Va. LEXIS 5, cert. denied, 488 U.S. 871, 109 S. Ct. 186, 102 L. Ed. 2d 154, 1988 U.S. LEXIS 3673 (1988).

    Exclusion from jury pool based on juror availability upheld. —

    Trial judge’s exclusion from the jury pool of those who were not available to serve on the four-day trial was not irregular as it did not exclude anyone or any cognizable group. Reeves v. Commonwealth, 42 Va. App. 650, 593 S.E.2d 827, 2004 Va. App. LEXIS 115 (2004).

    CIRCUIT COURT OPINIONS

    Judge’s decision to consider jurors’ schedules did not deny plaintiff fair and impartial jury in civil suit. —

    Trial court rejected a plaintiff’s argument that it violated state law on jury selection by asking 125 jurors who were selected for the court’s October term who could sit during a specific week in November and selecting 24 jurors from those who raised their hands and held that, even if there was a technical violation of the law, the plaintiff was not entitled to a new trial because she could not show that any irregularity was intentional or that the court’s conduct caused her injustice. Bricker v. Miller, 58 Va. Cir. 305, 2002 Va. Cir. LEXIS 38 (Albemarle County Mar. 7, 2002).

    § 8.01-356. Failure of juror to appear.

    If any juror who has been given due notice to appear in court shall fail to do so without sufficient excuse, he shall be fined not less than $50 nor more than $200.

    History. Code 1950, § 8-208.18; 1973, c. 439; 1977, c. 617; 2004, c. 116.

    The 2004 amendments.

    The 2004 amendment by c. 116 substituted “50” for “25” and “200” for “100.”

    Law Review.

    For article, “Improving the Jury System in Virginia: Jury Patriotism Legislation Is Needed,” 11 Geo. Mason L. Rev. 657 (2003).

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 25.

    § 8.01-357. Selection of jury panel.

    On the day on which jurors have been notified to appear, jurors not excused by the court shall be called in such manner as the judge may direct to be sworn on their voir dire until a panel free from exceptions shall be obtained. The jurors shall be selected randomly. The remaining jurors may be discharged or excused subject to such orders as the court shall make.

    History. Code 1950, § 8-208.19; 1973, c. 439; 1977, c. 617; 1999, c. 3.

    The 1999 amendment, in the second sentence, deleted “Upon motion of any party” preceding “the jurors shall” and substituted “randomly” for “by lot.”

    Law Review.

    For note, “Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70’s,” see 15 U. Rich. L. Rev. 585 (1981).

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, §§ 20, 32, 48, 49.

    CASE NOTES

    Denial of motion to strike jury panel proper. —

    There was no manifest error in the trial court’s denial of defendant’s motion to strike the jury panel because defendant could not establish either an irregularity in the jury selection process or a violation of his right to a jury selected from a fair cross-section of the community; he offered no proof that young individuals, white individuals, or males were more likely to complete their questionnaires before older individuals, African-American individuals, or females. Rogers v. Commonwealth, 2009 Va. App. LEXIS 384 (Va. Ct. App. Sept. 1, 2009), cert. denied, 562 U.S. 1071, 131 S. Ct. 663, 178 L. Ed. 2d 495, 2010 U.S. LEXIS 9319 (2010).

    Trial court did not abuse its discretion by denying defendant’s motion to strike a prospective juror for cause because, viewing the voir dire in its entirety, the record supported the trial court’s conclusion that the juror could remain fair and impartial. Twice the juror responded that she was not sure if her best friend’s murder would affect her judgment in the case, but in its entirety the trial court determined that the juror’s voir dire indicated that she could remain fair and impartial. Purnell v. Commonwealth, 2020 Va. App. LEXIS 180 (Va. Ct. App. June 23, 2020).

    The right to a trial by an impartial jury is guaranteed under both the United States and Virginia Constitutions and this guarantee is reinforced by legislative enactment and by the rules of court. Gosling v. Commonwealth, 7 Va. App. 642, 376 S.E.2d 541, 5 Va. Law Rep. 1666, 1989 Va. App. LEXIS 9 (1989).

    Doubts as to impartiality resolved in favor of accused. —

    Any reasonable doubt regarding a prospective juror’s ability to give the accused a fair and impartial trial must be resolved in favor of the accused. Shanklin v. Commonwealth, 2000 Va. App. LEXIS 286 (Va. Ct. App. Apr. 18, 2000).

    Every prospective juror must stand indifferent to the cause and any reasonable doubt as to a juror’s qualifications must be resolved in favor of the accused. Murray v. Commonwealth, 2001 Va. App. LEXIS 182 (Va. Ct. App. Apr. 10, 2001).

    Deferral of argument on challenge for cause. —

    A trial judge may have good reason to defer argument on a challenge for cause until after voir dire has been completed. However, argument on a challenge for cause should not be deferred until after the parties have exercised their peremptory challenges and the jury has been sworn. Brooks v. Commonwealth, 24 Va. App. 523, 484 S.E.2d 127, 1997 Va. App. LEXIS 236 (1997).

    Juror properly retained on panel. —

    The trial court did not erroneously overrule motion on part of defendant, who was convicted by a jury of murder in the first degree, to remove a juror from the panel for cause where juror was a conscientious and perceptive juror, fully cognizant of the duties and responsibilities attendant to that service, her responses during voir dire revealed an impartial mind, untainted by prejudgment and receptive to consideration of the case in accordance with the evidence and instructions of the court, notwithstanding prior knowledge and interest in the offenses, and she, therefore, stood indifferent to the cause and was properly retained on the panel. Swanson v. Commonwealth, 18 Va. App. 182, 442 S.E.2d 702, 10 Va. Law Rep. 1148, 1994 Va. App. LEXIS 192 (1994).

    In a first-degree murder case, there was no error in the denial of a motion to strike a prospective juror for cause because the juror’s preconceived notion as to the guilt or innocence of defendant was not sufficient to justify disqualification where the juror said he could lay aside that opinion and render a verdict based on the evidence presented. During individual voir dire, the juror unequivocally committed himself to set aside any prior opinion and based his decision on the evidence provided. Taylor v. Commonwealth, 67 Va. App. 448, 796 S.E.2d 859, 2017 Va. App. LEXIS 68 (2017).

    The trial court did not err in refusing to strike potential juror for cause. —

    The prospective juror acknowledged awareness of accounts of the crime in the media but his awareness was coextensive with the brief summary of allegations provided by the trial judge at the commencement of voir dire. Although he characterized the media’s account as “prejudging” the accused, the prospective juror repeatedly stated that he would base his decision upon the evidence presented at trial. The trial judge did not err by refusing to strike this prospective juror for cause. DeLaurencio v. Commonwealth, 2000 Va. App. LEXIS 443 (Va. Ct. App. June 20, 2000).

    Trial court did not abuse its discretion in refusing to exclude a juror for cause because the juror made it clear during voir dire that he would not necessarily accept a police officer’s testimony that conflicted with other testimony; the juror readily agreed, when specifically directed to his statements regarding police officer credibility, that he could and would reserve judgment on the credibility of a witness until he had seen and heard the witness at trial. Rogers v. Commonwealth, 2009 Va. App. LEXIS 384 (Va. Ct. App. Sept. 1, 2009), cert. denied, 562 U.S. 1071, 131 S. Ct. 663, 178 L. Ed. 2d 495, 2010 U.S. LEXIS 9319 (2010).

    Circuit court did not commit manifest error by denying defendant’s motion to strike a juror for cause; defendant focused on two isolated statements made by the juror, not the entirety of her voir dire, and both statements were taken out of context. The court concluded that the circuit court heard the juror emphasize the word “can” in her reply, “I think I can” be fair. Keepers v. Commonwealth, 72 Va. App. 17, 840 S.E.2d 575, 2020 Va. App. LEXIS 107 (2020).

    Circuit court did not commit manifest error by denying defendant’s motion to strike a juror for cause; she explained that she and her husband shared a social media account, she did not “like” the news story about defendant being denied bond, and she was not the one who posted the comment about defendant receiving capital punishment. The juror unequivocally stated that she could be fair and impartial. Keepers v. Commonwealth, 72 Va. App. 17, 840 S.E.2d 575, 2020 Va. App. LEXIS 107 (2020).

    The trial court erred in refusing to strike potential juror for cause where, although she stated that she would attempt not to base her judgment on information she had gained through the news media, she could not assure the court that she would render her verdict based solely on the evidence adduced at trial. Her answers raised a reasonable doubt as to her qualification to serve as a juror, a doubt that should have been resolved by granting defendant’s motion to strike her for cause. DeHart v. Commonwealth, 19 Va. App. 139, 449 S.E.2d 59, 1994 Va. App. LEXIS 630 (1994).

    Circuit court erred in failing to strike a prospective juror for cause because the juror was related to a Commonwealth’s witness — a police officer/witness’s father was the juror’s first cousin — the juror’s answers to the questions posed during voir dire did not demonstrate that he could be fair and impartial where, although the juror responded affirmatively when asked if he could be fair and impartial and make a decision based on the evidence and not solely on testimony, and the Commonwealth attorney’s attempt to rehabilitate the juror was insufficient to establish that his personal relationship with the officer would not affect his ability to be impartial and give appellant a fair trial. Bell v. Commonwealth, 2017 Va. App. LEXIS 202 (Va. Ct. App. Aug. 8, 2017).

    Jurors to be removed for cause before peremptory challenges. —

    An accused is entitled to a panel of jurors free from exception before exercising peremptory challenges. Cressell v. Commonwealth, 32 Va. App. 744, 531 S.E.2d 1, 2000 Va. App. LEXIS 500 (2000).

    Error to force use of peremptory strike. —

    This section assures a defendant a right to an impartial jury drawn from a panel of 20 free from exceptions, and it is prejudicial error for the trial court to force a defendant to use the peremptory strike afforded him by § 19.2-262 to exclude a venireman who is not free from exception. Justus v. Commonwealth, 220 Va. 971 , 266 S.E.2d 87, 1980 Va. LEXIS 192 (1980).

    Putting the defense in a position where it is forced to exercise its peremptory challenges to exclude a biased juror is not harmless error. Gosling v. Commonwealth, 7 Va. App. 642, 376 S.E.2d 541, 5 Va. Law Rep. 1666, 1989 Va. App. LEXIS 9 (1989).

    Under Virginia law, compelling defendant to use peremptory challenge to remove juror who should have been removed for cause is prejudicial error. Satcher v. Netherland, 944 F. Supp. 1222, 1996 U.S. Dist. LEXIS 20132 (E.D. Va. 1996), aff'd in part and rev'd in part, 126 F.3d 561, 1997 U.S. App. LEXIS 25188 (4th Cir. 1997).

    Trial court erred in disallowing inquiry into prospective juror’s previous employment as a law-enforcement officer, and in denying defendant’s motion to strike prospective juror for cause, which forced defendant to use a peremptory strike to remove prospective juror. Childress v. Commonwealth, 2000 Va. App. LEXIS 106 (Va. Ct. App. Feb. 15, 2000).

    The right to a trial by an impartial jury is guaranteed under both the United States and Virginia Constitutions and this guarantee is reinforced by legislative enactment and by the rules of court. Gosling v. Commonwealth, 7 Va. App. 642, 376 S.E.2d 541, 5 Va. Law Rep. 1666, 1989 Va. App. LEXIS 9 (1989).

    CIRCUIT COURT OPINIONS

    Judge’s decision to consider jurors’ schedules did not deny plaintiff fair and impartial jury in civil suit. —

    Trial court rejected a plaintiff’s argument that it violated state law on jury selection by asking 125 jurors who were selected for the court’s October term who could sit during a specific week in November and selecting 24 jurors from those who raised their hands and held that, even if there was a technical violation of the law, the plaintiff was not entitled to a new trial because she could not show that any irregularity was intentional or that the court’s conduct caused her injustice. Bricker v. Miller, 58 Va. Cir. 305, 2002 Va. Cir. LEXIS 38 (Albemarle County Mar. 7, 2002).

    § 8.01-358. Voir dire examination of persons called as jurors.

    The court and counsel for either party shall have the right to examine under oath any person who is called as a juror therein and shall have the right to ask such person or juror directly any relevant question to ascertain whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein; and the party objecting to any juror may introduce any competent evidence in support of the objection; and if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be drawn or called and placed in his stead for the trial of that case.

    A juror, knowing anything relative to a fact in issue, shall disclose the same in open court.

    History. Code 1950, §§ 8-208.28, 8-215; 1973, c. 439; 1977, c. 617; 1981, c. 280.

    Cross references.

    As to ruin dire examination, see Rule 3A:14.

    Law Review.

    For 1985 survey of Virginia criminal procedure, see 19 U. Rich. L. Rev. 697 (1985).

    For a note, “Invaluable Tool vs. Unfair Use of Private Information: Examining Prosecutors’ Use of Jurors’ Criminal History Records in Voir Dire,” see 56 Wash. & Lee L. Rev. 1079 (1999).

    For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, §§ 32, 34, 37, 43, 45.1, 59.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    An accused is entitled to an impartial jury as a matter of constitutional guarantee, reinforced by legislative mandate and by the rules of court. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123, 1980 Va. LEXIS 263 (1980).

    The right to a trial by an impartial jury is guaranteed under both the United States and Virginia Constitutions and this guarantee is reinforced by legislative enactment and by the rules of court. Gosling v. Commonwealth, 7 Va. App. 642, 376 S.E.2d 541, 5 Va. Law Rep. 1666, 1989 Va. App. LEXIS 9 (1989).

    Which is a substantive right. —

    The constitutional and statutory guarantee of an impartial jury is no mere legal technicality, but a substantive right scrupulously to be observed in the day-to-day administration of justice. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123, 1980 Va. LEXIS 263 (1980).

    All doubt as to juror impartiality must be resolved in accused’s favor. —

    When asked if there was doubt in her mind whether she could sit impartially as a juror, juror responded, “It’s possible but not likely.” While it is unclear from the record whether juror meant to say that it was possible but not likely that she could be impartial or whether she meant it was possible she was prejudiced but not likely, all doubts as to the impartiality of a juror must be resolved in favor of the accused and the trial court abused its discretion and committed manifest error by refusing to strike juror for cause. Foley v. Commonwealth, 8 Va. App. 149, 379 S.E.2d 915, 5 Va. Law Rep. 2449, 1989 Va. App. LEXIS 43 (1989).

    Where the voir dire in this case raised reasonable doubt concerning a juror’s ability to stand indifferent in the cause as required by this section, reversal of the conviction was required. Clements v. Commonwealth, 21 Va. App. 386, 464 S.E.2d 534, 1995 Va. App. LEXIS 919 (1995).

    Viewing the venire person’s voir dire in its entirety, the record disclosed a series of tentative, equivocal responses to questioning intended to probe and ascertain the venire person’s state of mind, leaving reasonable doubt of her partiality as a matter of law and requiring that she be removed for cause. Under such circumstances, it was reversible error to require defendant to exhaust a peremptory strike to remove the juror. Pennington v. Commonwealth, No. 1346-95-3 (Ct. of Appeals Feb. 4, 1997).

    Every prospective juror must stand indifferent to the cause and any reasonable doubt as to a juror’s qualifications must be resolved in favor of the accused. Murray v. Commonwealth, 2001 Va. App. LEXIS 182 (Va. Ct. App. Apr. 10, 2001).

    Discretion of court in jury selection. —

    Generally, whether a prospective juror should be excluded for cause is a matter within the sound discretion of the trial court, and its action in refusing to exclude a particular venireman is entitled to great weight on appeal. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123, 1980 Va. LEXIS 263 (1980).

    As long as the selection procedure results in a fair and impartial jury, the manner in which a jury is to be selected is properly within the trial court’s sound discretion. Turner v. Commonwealth, 221 Va. 513 , 273 S.E.2d 36, 1980 Va. LEXIS 273 (1980), cert. denied, 451 U.S. 1011, 101 S. Ct. 2347, 68 L. Ed. 2d 863, 1981 U.S. LEXIS 2180 (1981).

    Whether a venireman can lay aside a preconceived opinion and render a verdict solely on the evidence is a mixed question of law and fact. Resolution of the question rests within the sound discretion of the trial court. Calhoun v. Commonwealth, 226 Va. 256 , 307 S.E.2d 896, 1983 Va. LEXIS 314 (1983).

    It is the court’s duty to procure an impartial jury. The court’s fulfillment of this duty, however, involves the exercise of sound judicial discretion. Scott v. Commonwealth, 1 Va. App. 447, 339 S.E.2d 899, 1986 Va. App. LEXIS 222 (1986), aff'd, 233 Va. 5 , 353 S.E.2d 460, 3 Va. Law Rep. 1839, 1987 Va. LEXIS 152 (1987).

    The court’s duty, in the exercise of its discretion, is to empanel jurors who are free from bias or prejudice against the parties and who stand indifferent in the cause. Scott v. Commonwealth, 1 Va. App. 447, 339 S.E.2d 899, 1986 Va. App. LEXIS 222 (1986), aff'd, 233 Va. 5 , 353 S.E.2d 460, 3 Va. Law Rep. 1839, 1987 Va. LEXIS 152 (1987).

    Upon review, the appellate court gives deference to the trial court’s decision as to whether to retain or exclude prospective jurors, and a trial court’s decision on this issue will be affirmed unless there has been manifest error amounting to an abuse of discretion. Cantrell v. Crews, 259 Va. 47 , 523 S.E.2d 502, 2000 Va. LEXIS 22 (2000).

    Trial court’s decision whether to retain or exclude an individual venireman is given deference on appeal, since it is in a position to see and hear the juror. Caprio v. Commonwealth, No. 2225-98-1 (Ct. of Appeals Mar. 14, 2000).

    Sufficient explanations for peremptory strikes. —

    Commonwealth’s concerns with jurors who were not paying attention, one of whom was seen smiling at appellant, provided sufficient race-neutral explanations for the use of two of its peremptory strikes. Allred v. Commonwealth, No. 0223-94-2 (Ct. of Appeals March 14, 1995).

    Trial court is not required to exclude all jurors who have any preconceived opinion of the case. Calhoun v. Commonwealth, 226 Va. 256 , 307 S.E.2d 896, 1983 Va. LEXIS 314 (1983).

    To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. Calhoun v. Commonwealth, 226 Va. 256 , 307 S.E.2d 896, 1983 Va. LEXIS 314 (1983).

    It is sufficient if the juror can lay aside impression or opinion and render verdict based on evidence presented in court. Calhoun v. Commonwealth, 226 Va. 256 , 307 S.E.2d 896, 1983 Va. LEXIS 314 (1983).

    Curative instruction insufficient to negate prejudice due to improper comments during voir dire. —

    Trial court’s curative instruction was neither explicit nor sufficient and created a manifest probability of prejudice because, based on the totality of the circumstances during voir dire and in the rebuttal argument, the improper comments during voir dire were so impressive as to remain in the minds of the jurors and influence their verdict; the curative instruction addressed only statements made by counsel in opening statements and closing remarks, not during voir dire, the nature of the prosecutor’s inappropriate comment that victims of rape usually delay reporting directly addressed a central, if not the central, issue in the case and increased the likelihood of prejudice, and nothing in the record indicated the prosecutor ever intended to present any evidence to substantiate the opinion. Smith v. Commonwealth, 40 Va. App. 595, 580 S.E.2d 481, 2003 Va. App. LEXIS 300 (2003).

    Discretion of court as to voir dire. —

    Where the court carefully reviewed defendant’s refused questions and concluded that he was not prejudiced thereby, and where defendant cannot show that the trial court abused its discretion in refusing to ask the remaining questions, the Supreme Court will not disturb the lower court’s ruling. Bassett v. Commonwealth, 222 Va. 844 , 284 S.E.2d 844, 1981 Va. LEXIS 382 (1981), cert. denied, 456 U.S. 938, 102 S. Ct. 1996, 72 L. Ed. 2d 458 (1982).

    The questions propounded by counsel must be relevant and the trial court must, in its discretion, decide the issue of relevancy, subject to review for abuse. LeVasseur v. Commonwealth, 225 Va. 564 , 304 S.E.2d 644, 1983 Va. LEXIS 257 (1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 744, 79 L. Ed. 2d 202, 1984 U.S. LEXIS 728 (1984); Henshaw v. Commonwealth, 3 Va. App. 213, 348 S.E.2d 853, 3 Va. Law Rep. 763, 1986 Va. App. LEXIS 353 (1986).

    It is the duty of the court to procure an impartial jury. Consistent with this duty, the trial courts of Virginia conduct the examination of the venire, including the mandatory seven questions set out in Rule 3A:14. The trial court’s responsibility in the matter of the venire, however, does not exclude the participation of counsel. Scott v. Commonwealth, 1 Va. App. 447, 339 S.E.2d 899, 1986 Va. App. LEXIS 222 (1986), aff'd, 233 Va. 5 , 353 S.E.2d 460, 3 Va. Law Rep. 1839, 1987 Va. LEXIS 152 (1987).

    Trial court did not abuse its discretion in refusing to permit defendant to ask potential jurors at voir dire about: (1) the age and sex of their children and grandchildren; (2) their educational coursework in psychology, psychiatry, or law; (3) their military experience, including courts martial; and (4) their philosophical beliefs because the trial court, and defendant, made full inquiry as to any bias or prejudice on the part of the potential jurors. Juniper v. Commonwealth, 271 Va. 362 , 626 S.E.2d 383, 2006 Va. LEXIS 29, cert. denied, 549 U.S. 960, 127 S. Ct. 397, 166 L. Ed. 2d 282, 2006 U.S. LEXIS 7623 (2006), .

    Court’s refusal to ask requested questions. —

    While the wiser course generally is to propound appropriate questions designed to identify racial prejudice if requested by the defendant, a trial court’s refusal to do so is not constitutionally objectionable in the absence of factors similar to those in Ham v. South Carolina, 1973 U.S. LEXIS 115, 409 U.S. 524, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973); Turner v. Commonwealth, 221 Va. 513 , 273 S.E.2d 36, 1980 Va. LEXIS 273 (1980), cert. denied, 451 U.S. 1011, 101 S. Ct. 2347, 68 L. Ed. 2d 863, 1981 U.S. LEXIS 2180 (1981).

    Unless the refusal to ask a question amounts to a denial of due process or otherwise impinges upon the right to a fair and impartial jury, the present wording of this section and former Rule 3A:20(a) (see now Rule 3A:14) empowers a trial court to use its discretion in determining whether to ask questions proposed by either the Commonwealth or the defendant. Turner v. Commonwealth, 221 Va. 513 , 273 S.E.2d 36, 1980 Va. LEXIS 273 (1980), cert. denied, 451 U.S. 1011, 101 S. Ct. 2347, 68 L. Ed. 2d 863, 1981 U.S. LEXIS 2180 (1981).

    The trial court did not abuse its discretion in refusing to allow the plaintiff to examine the jury panel about the medical malpractice insurance crisis since the requested examination would have injected the subject of insurance into the trial. Speet v. Bacaj, 237 Va. 290 , 377 S.E.2d 397, 5 Va. Law Rep. 1824, 1989 Va. LEXIS 41 (1989).

    Trial court did not abuse its discretion in refusing a voir dire question proposed by defendant — addressing defendant’s concern about the burden-of-proof and defendant’s concern that jurors may have been biased against defendant because of the nature of the crime — because other questions asked by the court covered the same ground as the excluded question. Madonia v. Commonwealth, 2017 Va. App. LEXIS 256 (Va. Ct. App. Oct. 17, 2017).

    Refusal to read preferred statement. —

    The manner in which jury selection is conducted is within the discretion and control of the trial court, guided by this section and Rule 3A:14, and there is no provision in Virginia law which requires a trial court to read to prospective jurors a statement offered by a defendant. Buchanan v. Commonwealth, 238 Va. 389 , 384 S.E.2d 757, 6 Va. Law Rep. 531, 1989 Va. LEXIS 149 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963, 1990 U.S. LEXIS 596 (1990).

    The test of relevancy is whether the questions relate to any of the four criteria set forth in the statute. If an answer to the question would necessarily disclose, or clearly lead to the disclosure of the statutory factors of relationship, interest, opinion, or prejudice, it must be permitted. Questions which go beyond this standard are entirely within the trial court’s discretion. LeVasseur v. Commonwealth, 225 Va. 564 , 304 S.E.2d 644, 1983 Va. LEXIS 257 (1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 744, 79 L. Ed. 2d 202, 1984 U.S. LEXIS 728 (1984); Henshaw v. Commonwealth, 3 Va. App. 213, 348 S.E.2d 853, 3 Va. Law Rep. 763, 1986 Va. App. LEXIS 353 (1986).

    Party has no right, statutory or otherwise, to propound any question he wishes, or to extend voir dire questioning ad infinitum. LeVasseur v. Commonwealth, 225 Va. 564 , 304 S.E.2d 644, 1983 Va. LEXIS 257 (1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 744, 79 L. Ed. 2d 202, 1984 U.S. LEXIS 728 (1984).

    Former Rule 3A:20(a) resolved ambiguity in this section. —

    Former Supreme Court Rule 3A:20(a), which clearly made counsel’s participation in voir dire contingent upon the trial court’s approval, resolved any ambiguity present in the statutory language of this section. Turner v. Commonwealth, 221 Va. 513 , 273 S.E.2d 36 (1980), cert. denied, 451 U.S. 1011, 101 S. Ct. 2347, 68 L. Ed. 2d 863 (1981). But see now Rule 3A:14.

    Section recognizes advantage to counsel-conducted voir dire. —

    In amending this section to state that the court and counsel for either party shall have the right to examine under oath persons called as jurors, the legislature implicitly recognized the advantage to counsel-conducted voir dire. Lankford v. Foster, 546 F. Supp. 241, 1982 U.S. Dist. LEXIS 15490 (W.D. Va. 1982), aff'd, 716 F.2d 896 (4th Cir. 1983).

    But no constitutional right to counsel-conducted voir dire. —

    While the defendant has a constitutional right to a fair and impartial jury, he has no constitutional right to counsel-conducted voir dire. Turner v. Commonwealth, 221 Va. 513 , 273 S.E.2d 36, 1980 Va. LEXIS 273 (1980), cert. denied, 451 U.S. 1011, 101 S. Ct. 2347, 68 L. Ed. 2d 863, 1981 U.S. LEXIS 2180 (1981).

    Counsel-conducted voir dire is a statutory, not a constitutional right. Charity v. Commonwealth, 22 Va. App. 582, 471 S.E.2d 821, 1996 Va. App. LEXIS 532 , op. withdrawn, 24 Va. App. 258, 482 S.E.2d 59, 1996 Va. App. LEXIS 549 (1996); Charity v. Commonwealth, 24 Va. App. 258, 482 S.E.2d 59, 1997 Va. App. LEXIS 385 (1997).

    Trial court’s failure to allow appellant’s counsel to ask voir dire questions of the prospective jurors was a clear deviation from the mandate of this section. That such a deviation is an abuse of discretion is beyond cavil. Charity v. Commonwealth, 24 Va. App. 258, 482 S.E.2d 59, 1997 Va. App. LEXIS 385 (1997).

    A trial court’s error in refusing to allow counsel-conducted voir dire is harmless if it plainly appears that the jury panel remained impartial and that the defendant was not otherwise prejudiced by the jury selection process the court employed. Charity v. Commonwealth, 22 Va. App. 582, 471 S.E.2d 821, 1996 Va. App. LEXIS 532 , op. withdrawn, 24 Va. App. 258, 482 S.E.2d 59, 1996 Va. App. LEXIS 549 (1996).

    In conducting voir dire, the court questioned prospective jurors on each of the matters the defendant’s counsel raised. Counsel failed to proffer any questions that were not asked, and he failed to interject any follow-up questions to those the court did ask. The defendant’s sole objection was that the court had failed to follow the mandate of this section. The court’s error did not affect the selection of the jury or its partiality, affect the verdict or otherwise prejudice the defendant. Charity v. Commonwealth, 22 Va. App. 582, 471 S.E.2d 821, 1996 Va. App. LEXIS 532 , op. withdrawn, 24 Va. App. 258, 482 S.E.2d 59, 1996 Va. App. LEXIS 549 (1996).

    Harmless error found in failure to follow statute. —

    Although court clearly failed to follow the mandate of this section when it refused to allow defense attorney to question jurors himself, it plainly appears from the record that this error did not affect the questions propounded to the prospective jurors, the selection or composition of the jury panel or its partiality. Thus, the record plainly shows that the erroneous, non-constitutional ruling did not deprive appellant of a fair trial or substantial justice and, therefore, plainly did not affect the verdict. Charity v. Commonwealth, 24 Va. App. 258, 482 S.E.2d 59, 1997 Va. App. LEXIS 385 (1997).

    Trial court did not commit reversible error because, even if the trial court erred in dismissing a venireman without conducting meaningful individual voir dire in accordance with § 8.01-358 , the error was harmless because defendant put forth no evidence or argument that the jury selected was not impartial or not qualified. Moyd v. Commonwealth, 2013 Va. App. LEXIS 50 (Va. Ct. App. Feb. 19, 2013).

    Denial of a motion to permit each venireman to be questioned individually out of the presence of all others on voir dire was within the court’s discretion. Fisher v. Commonwealth, 236 Va. 403 , 374 S.E.2d 46, 5 Va. Law Rep. 1019, 1988 Va. LEXIS 158 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1766, 104 L. Ed. 2d 201, 1989 U.S. LEXIS 2001 (1989).

    Question may not be allowed although question relates to section’s criteria. —

    Even if the question propounded by defense counsel related to any one of the four criteria described in this section, the trial court in its discretion may have declined to allow the question if it were objectionable for other reasons and if defense counsel was given a sufficient opportunity to determine the indifference of the veniremen. Wall v. Commonwealth, No. 0120-89-2 (Ct. of Appeals July 30, 1991).

    Question may be denied if counsel given opportunity to determine veniremens’ indifference. —

    Even if a question relates to one of the four criteria described in this section, a trial court may not abuse its discretion in denying defense counsel an opportunity to ask a particular question if trial counsel is given sufficient opportunity to determine whether the veniremen are indifferent to the proceeding. Wall v. Commonwealth, No. 0120-89-2 (Ct. of Appeals July 30, 1991).

    Error to force use of peremptory challenge. —

    It was prejudicial error for the trial court to force the accused to use a peremptory challenge to exclude a venireman who was not free from exception. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123, 1980 Va. LEXIS 263 (1980).

    It is prejudicial error to force a defendant to use the peremptory strike to exclude a venireman who is not free from exception. Scott v. Commonwealth, 1 Va. App. 447, 339 S.E.2d 899, 1986 Va. App. LEXIS 222 (1986), aff'd, 233 Va. 5 , 353 S.E.2d 460, 3 Va. Law Rep. 1839, 1987 Va. LEXIS 152 (1987).

    The removal of a juror by peremptory challenge is irrelevant to the decision on appeal if the court erred in refusing to strike him for cause. Scott v. Commonwealth, 1 Va. App. 447, 339 S.E.2d 899, 1986 Va. App. LEXIS 222 (1986), aff'd, 233 Va. 5 , 353 S.E.2d 460, 3 Va. Law Rep. 1839, 1987 Va. LEXIS 152 (1987).

    Trial court erred in disallowing inquiry into prospective juror’s previous employment as a law-enforcement officer, and in denying defendant’s motion to strike prospective juror for cause, which forced defendant to use a peremptory strike to remove prospective juror. Childress v. Commonwealth, 2000 Va. App. LEXIS 106 (Va. Ct. App. Feb. 15, 2000).

    As a matter of state law, an accused is entitled to a panel of jurors free from exception before exercising peremptory challenges. Cressell v. Commonwealth, 32 Va. App. 744, 531 S.E.2d 1, 2000 Va. App. LEXIS 500 (2000).

    In an employee’s suit against his employer to recover for personal injuries incurred at work, the failure to strike prospective juror, and requiring an employee to use a prospective strike, was reversible error because even though he claimed that he would be fair and impartial, a prospective juror was presumptively biased due to his ownership of stock in the employer. Roberts v. CSX Transp., Inc., 279 Va. 111 , 688 S.E.2d 178, 2010 Va. LEXIS 8 (2010).

    Refusal to remove juror who is not impartial not harmless. —

    A trial court’s refusal to remove a juror who is not impartial does not constitute harmless error even if counsel uses a peremptory strike to exclude the juror. David v. Commonwealth, 26 Va. App. 77, 493 S.E.2d 379, 1997 Va. App. LEXIS 715 (1997).

    Reasonable doubt as to impartiality. —

    Any reasonable doubt that a venireman does not stand indifferent in the cause must be resolved in favor of the accused. Justus v. Commonwealth, 220 Va. 971 , 266 S.E.2d 87, 1980 Va. LEXIS 192 (1980); Barker v. Commonwealth, 230 Va. 370 , 337 S.E.2d 729, 1985 Va. LEXIS 289 (1985).

    A juror must stand indifferent in the cause, and a venireman must be excluded if the trial court entertains a reasonable doubt as to his qualifications. Calhoun v. Commonwealth, 226 Va. 256 , 307 S.E.2d 896, 1983 Va. LEXIS 314 (1983).

    Doubts as to the impartiality of a juror must be resolved in favor of the accused. Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 349 S.E.2d 903, 1986 Va. App. LEXIS 373 (1986).

    Any reasonable doubt whether a juror stands impartial is sufficient to ensure his exclusion, because it is not only important that justice should be impartially administered, but it should also flow through channels as free from suspicion as possible. Mullis v. Commonwealth, 3 Va. App. 564, 351 S.E.2d 919, 3 Va. Law Rep. 1567, 1987 Va. App. LEXIS 141 (1987).

    Any reasonable doubt regarding a prospective juror’s ability to give the accused a fair and impartial trial must be resolved in favor of the accused. Shanklin v. Commonwealth, 2000 Va. App. LEXIS 286 (Va. Ct. App. Apr. 18, 2000).

    When a juror has expressed a disqualifying view during voir dire, the clarification or absence of disqualification must emanate from the juror in order to establish that the juror is impartial and is free of bias. Murray v. Commonwealth, 2001 Va. App. LEXIS 182 (Va. Ct. App. Apr. 10, 2001).

    Automatic exclusions not subject to court’s discretion. —

    Ordinarily, a determination whether a juror is qualified rests within the sound discretion of the trial court, and its finding will not be disturbed on appeal absent manifest error. Some veniremen, however, are excluded for cause automatically, irrespective of a showing of impartiality during voir dire. Such automatic exclusions leave no room for judicial discretion. Barker v. Commonwealth, 230 Va. 370 , 337 S.E.2d 729, 1985 Va. LEXIS 289 (1985).

    Jurors are not required to be totally ignorant of the facts and issues involved in a case on which they sit. Justus v. Commonwealth, 220 Va. 971 , 266 S.E.2d 87, 1980 Va. LEXIS 192 (1980).

    Mere interest does not per se require venireman to be set aside. —

    Per se disqualification of veniremen is not favored; mere interest in the subject matter of a prosecution does not, per se, require that a venireman be set aside for cause. Webb v. Commonwealth, 11 Va. App. 220, 397 S.E.2d 539, 7 Va. Law Rep. 642, 1990 Va. App. LEXIS 183 (1990).

    Equivocal responses. —

    An equivocal response on a collateral matter does not mandate disqualification of a prospective juror. Flint v. Commonwealth, No. 1024-88-4 (Ct. of Appeals Aug. 28, 1990).

    Trial judge did not err in denying a motion to exclude jurors for cause on the basis of their equivocal responses to questions which improperly required them to speculate concerning evidence that would be produced at trial. Flint v. Commonwealth, No. 1024-88-4 (Ct. of Appeals Aug. 28, 1990).

    Pretrial juror questionnaire. —

    Where three weeks before trial, defendant submitted to the court a two-page “Juror’s Personal Data Questionnaire” and moved the court to order each venireman to complete and return it before trial, the court correctly denied the motion; to the extent a pretrial juror questionnaire would probe a juror’s attitudes outside the courtroom, it would detract from the trial judge’s “opportunity to observe and evaluate prospective jurors first hand.” Strickler v. Commonwealth, 241 Va. 482 , 404 S.E.2d 227, 7 Va. Law Rep. 2320, 1991 Va. LEXIS 69, cert. denied, 502 U.S. 944, 112 S. Ct. 386, 116 L. Ed. 2d 337, 1991 U.S. LEXIS 6388 (1991).

    Scope of review on appeal. —

    A court on appeal will review a trial court’s decision whether to strike a prospective juror for cause for an abuse of discretion and that ruling will not be disturbed on appeal unless it appears from the record that the trial court’s action constitutes manifest error; in determining whether a prospective juror should have been excluded for cause, the court reviews the entire voir dire, rather than a single question and answer. Murray v. Commonwealth, 2001 Va. App. LEXIS 182 (Va. Ct. App. Apr. 10, 2001).

    Failure to raise argument at trial procedurally barred consideration of the same on appeal. —

    Defendant’s failure to raise his public confidence argument at trial regarding the seating of the jurors barred consideration of the same on appeal, pursuant to Va. Sup. Ct. R. 5A:18 and 5:25; moreover, it was fundamentally unfair to overturn the valid decision of a jury for reasons never given to the trial court and which do not go to the merits of the case or the actual bias of a juror. Townsend v. Commonwealth, 270 Va. 325 , 619 S.E.2d 71, 2005 Va. LEXIS 81 (2005), cert. denied, 547 U.S. 1008, 126 S. Ct. 1477, 164 L. Ed. 2d 257, 2006 U.S. LEXIS 2118 (2006).

    Review of entire voir dire. —

    Whether a prospective juror should have been excluded for cause must be decided upon a review of the entire voir dire, rather than an isolated question and answer. Mullis v. Commonwealth, 3 Va. App. 564, 351 S.E.2d 919, 3 Va. Law Rep. 1567, 1987 Va. App. LEXIS 141 (1987).

    Trial court did not abuse its discretion by denying defendant’s motion to strike a prospective juror for cause because, viewing the voir dire in its entirety, the record supported the trial court’s conclusion that the juror could remain fair and impartial. Twice the juror responded that she was not sure if her best friend’s murder would affect her judgment in the case, but in its entirety the trial court determined that the juror’s voir dire indicated that she could remain fair and impartial. Purnell v. Commonwealth, 2020 Va. App. LEXIS 180 (Va. Ct. App. June 23, 2020).

    Relation to other laws. —

    In an employee’s suit under the Federal Employer’s Liability Act, 45 U.S.C.S. §§ 51-60, against his employer to recover for personal injuries incurred at work, where the failure to strike a prospective juror, and requiring an employee to use a prospective strike, was reversible error under § 8.01-358 , Virginia law governed disposition of this matter such that remand for a new trial was required. Roberts v. CSX Transp., Inc., 279 Va. 111 , 688 S.E.2d 178, 2010 Va. LEXIS 8 (2010).

    B.Impartiality as to Punishment.

    Impartiality on question of punishment required. —

    Virginia Const., Art. I, § 8 and this section require jurors to be impartial not only upon the issue of guilt or innocence but also upon the question of punishment. Patterson v. Commonwealth, 222 Va. 653 , 283 S.E.2d 212, 1981 Va. LEXIS 356 (1981).

    Elimination for inability to reach decision on death penalty or life sentence. —

    Where a prospective juror, in his voir dire responses, never indicated that he could listen to the evidence and actually reach a decision about whether to impose the death penalty or a term of imprisonment for life, the circuit court correctly excused him for cause, as his ability to follow the court’s instructions and to perform his duties in accordance with his oath was obviously impaired. Green v. Commonwealth, 266 Va. 81 , 580 S.E.2d 834, 2003 Va. LEXIS 55 (2003), cert. denied, 540 U.S. 1194, 124 S. Ct. 1448, 158 L. Ed. 2d 107, 2004 U.S. LEXIS 1284 (2004), cert. denied, 546 U.S. 1066, 126 S. Ct. 809, 163 L. Ed. 2d 637, 2005 U.S. LEXIS 9132 (2005).

    Elimination permitted for bias in favor of death penalty. —

    The process of selection of an impartial jury permits elimination for cause of those veniremen who are biased in favor of the death penalty under all circumstances as well as those who are biased against its imposition under all circumstances. Patterson v. Commonwealth, 222 Va. 653 , 283 S.E.2d 212, 1981 Va. LEXIS 356 (1981).

    A prospective juror should have been removed for cause where, even though he indicated that he would consider both the imposition of the death penalty and life without parole if the defendant were convicted of capital murder, he exhibited a strong belief that if the defendant committed a capital offense, he should be sentenced to death; the juror had formed a fixed opinion about the punishment that the defendant should receive if the defendant were convicted of a capital offense and, thus, the juror was not impartial and indifferent in the cause. Green v. Commonwealth, 262 Va. 105 , 546 S.E.2d 446, 2001 Va. LEXIS 82 (2001).

    And failure to question jury on bias invalidates death sentence. —

    In a prosecution for robbery and capital murder, the refusal by the trial judge to ask the jury whether, if the jury should happen to convict the defendant of capital murder, each juror would be able to consider voting for a sentence less than death, or to ask an equivalent question, was prejudicial error invalidating the sentence to death. Patterson v. Commonwealth, 222 Va. 653 , 283 S.E.2d 212, 1981 Va. LEXIS 356 (1981).

    Though verdict not necessarily invalidated. —

    A jury qualified by unconstitutional standards respecting punishment is not necessarily biased with respect to a defendant’s guilt. Patterson v. Commonwealth, 222 Va. 653 , 283 S.E.2d 212, 1981 Va. LEXIS 356 (1981).

    Questions regarding religious scruples about the death penalty. See Justus v. Commonwealth, 222 Va. 667 , 283 S.E.2d 905, 1981 Va. LEXIS 357 (1981), cert. denied, 455 U.S. 983, 102 S. Ct. 1491, 71 L. Ed. 2d 693 (1982).

    Questions about the range of punishment were not relevant to any of the factors prescribed in § 8.01-358 . Commonwealth v. Hill, 264 Va. 315 , 568 S.E.2d 673, 2002 Va. LEXIS 104 (2002), cert. denied, 537 U.S. 1202, 123 S. Ct. 1300, 154 L. Ed. 2d 1043, 2003 U.S. LEXIS 1569 (2003).

    Exclusion of jurors who would not vote for death penalty under any circumstances. —

    Trial court correctly excluded three prospective jurors for cause where one stated that he would not convict a defendant of a crime which potentially carried the death penalty, despite what the evidence might show, where another said she would not vote to impose the death penalty despite what the evidence would show, and where another reiterated that he would not vote for the death penalty regardless of any instructions the court might give. Strickler v. Commonwealth, 241 Va. 482 , 404 S.E.2d 227, 7 Va. Law Rep. 2320, 1991 Va. LEXIS 69, cert. denied, 502 U.S. 944, 112 S. Ct. 386, 116 L. Ed. 2d 337, 1991 U.S. LEXIS 6388 (1991).

    Preclusion of specific questions not error. —

    Trial court did not err in preventing defendant from asking specific members of the jury venire whether they had strong feelings in favor of the death penalty, what their views about the death penalty were, or whether they would consider a life sentence in the absence of mitigating evidence, as defendant did elicit the information sought and the trial court explained the relevant legal principles and asked appropriate questions to ensure that the jurors understood those principles. Lawlor v. Commonwealth, 285 Va. 187 , 738 S.E.2d 847, 2013 Va. LEXIS 13, cert. denied, 571 U.S. 953, 134 S. Ct. 427, 187 L. Ed. 2d 282, 2013 U.S. LEXIS 7435 (2013).

    C.Illustrative Cases.

    Where a defendant’s proposed voir dire questions were an invitation to a rambling discourse on a broad range of emotions, the circuit court did not abuse its discretion in refusing to allow him to ask them. Green v. Commonwealth, 266 Va. 81 , 580 S.E.2d 834, 2003 Va. LEXIS 55 (2003), cert. denied, 540 U.S. 1194, 124 S. Ct. 1448, 158 L. Ed. 2d 107, 2004 U.S. LEXIS 1284 (2004), cert. denied, 546 U.S. 1066, 126 S. Ct. 809, 163 L. Ed. 2d 637, 2005 U.S. LEXIS 9132 (2005).

    Question relating to bias and prejudice. —

    Where a cashier was murdered in an armed robbery, defendant’s proposed question as to whether prospective jurors had family or friends who were cashiers dealt with prospective bias and prejudice and was within the criteria of this section. Mackall v. Commonwealth, 236 Va. 240 , 372 S.E.2d 759, 5 Va. Law Rep. 670, 1988 Va. LEXIS 106 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 607, 1989 U.S. LEXIS 3316 (1989), cert. denied, 513 U.S. 904, 115 S. Ct. 268, 130 L. Ed. 2d 186, 1994 U.S. LEXIS 6801 (1994).

    Defendant’s claim that a question the trial court asked on voir dire was leading and inappropriately influenced the entire panel because it ultimately had the effect of other jurors not answering questions in an honest and forthright manner was rejected as: (1) the jurors requiring rehabilitation ultimately were struck for cause, (2) the trial court’s question was asked only after both the trial court and defendant had multiple opportunities to query potential jurors on the issues of the burden of proof, the presumption of innocence, and the appropriateness of drawing adverse inferences from the failure of the accused to testify, and (3) based on the voir dire as a whole, no reasonable doubt existed as to the impartiality of the remaining jurors not struck for cause. Nelson v. Commonwealth, 2004 Va. App. LEXIS 224 (Va. Ct. App. May 18, 2004).

    Trial court did not err in failing to strike juror one for cause under Va. Const., Art. 1, § 8, § 8.01-358 , and Va. Sup. Ct. R. 3A:14 as: (1) although juror one indicated juror one would wonder why defendant did not testify, juror one immediately confirmed juror one’s understanding of the legal principle affording defendant that right; (2) the trial court was justified in asking juror one a follow-up question to determine whether, like juror two, juror one thought juror one would be biased and unable to do juror one’s duty as a juror, or whether serving as a juror and following the law, while difficult, was nevertheless within juror one’s capabilities, and juror one responded that juror one thought juror one could sit and do it. Bufford v. Commonwealth, 2009 Va. App. LEXIS 335 (Va. Ct. App. July 28, 2009).

    Trial court erred in precluding defense counsel from further questioning a juror regarding possible bias, a right afforded under § 8.01-358 . Webber v. Commonwealth, 2013 Va. App. LEXIS 171 (Va. Ct. App. June 4, 2013).

    Circuit court did not abuse its discretion by allowing the prosecutor to ask jurors whether they, or family members, or friends, had ever been prosecuted for a criminal offense, and whether they felt that the person prosecuted was treated fairly by the justice system, as the questions were designed to discover a potential juror’s possible prejudice against the Commonwealth, which was a proper subject for inquiry under § 8.01-358 . Green v. Commonwealth, 266 Va. 81 , 580 S.E.2d 834, 2003 Va. LEXIS 55 (2003), cert. denied, 540 U.S. 1194, 124 S. Ct. 1448, 158 L. Ed. 2d 107, 2004 U.S. LEXIS 1284 (2004), cert. denied, 546 U.S. 1066, 126 S. Ct. 809, 163 L. Ed. 2d 637, 2005 U.S. LEXIS 9132 (2005).

    Questions relating to venireman’s opinion of eyewitness testimony. —

    Questions asking the veniremen’s opinions concerning eyewitness testimony did not address interest or partiality of the veniremen or their ability to stand indifferent in the cause. Barrette v. Commonwealth, 11 Va. App. 357, 398 S.E.2d 695, 7 Va. Law Rep. 1055, 1990 Va. App. LEXIS 218 (1990).

    Refusal to allow question relating to voice identification. —

    Trial court did not abuse its discretion in refusing to allow defendant to ask on voir dire if there was “anyone on the jury panel who believe[d] that a person’s testimony who identifie[d] a voice [was] always reliable?”; question was designed less to elicit an affirmative response than to suggest to the veniremen the defendant’s anticipated argument; furthermore, the question was difficult to understand and the defendant had a sufficient opportunity to determine the objectivity of the veniremen. Wall v. Commonwealth, No. 0120-89-2 (Ct. of Appeals July 30, 1991).

    Questions as to gang membership. —

    Defendant’s convictions for second-degree murder, use of a firearm during the commission of a felony, and possession of a firearm by a convicted felon were proper because at least some of defendant’s proffered gang evidence was erroneously excluded and that evidence was to be admissible on retrial. The evidence of the victim’s friend and the victim’s gang membership was going to be squarely before the jury and on remand, defendant was entitled to voir dire the venire panel regarding that issue. Cousins v. Commonwealth, 56 Va. App. 257, 693 S.E.2d 283, 2010 Va. App. LEXIS 214 (2010).

    Venireman deemed per se not to be “disinterested.” —

    A venireman who has an interest in the cause or who is related to a party is deemed per se not to be “disinterested” and must be set aside for cause; this rule extends to criminal prosecution. Webb v. Commonwealth, 11 Va. App. 220, 397 S.E.2d 539, 7 Va. Law Rep. 642, 1990 Va. App. LEXIS 183 (1990).

    Refusal to exclude for cause venireman who believes accused must prove his innocence is an abuse of discretion and a denial of a defendant’s right to an impartial jury. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123, 1980 Va. LEXIS 263 (1980).

    Prospective juror may not as a per se rule be disqualified on ground that Commonwealth’s Attorney had formerly represented him. Calhoun v. Commonwealth, 226 Va. 256 , 307 S.E.2d 896, 1983 Va. LEXIS 314 (1983).

    Where voir dire examination discloses that juror is leaning one way or the other and will not act with entire impartiality, the juror is biased and must be removed. Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 349 S.E.2d 903, 1986 Va. App. LEXIS 373 (1986).

    A prospective juror employed by the victim of a crime may face overt or subtle influences on his capacity to hear the evidence and render judgment fairly and impartially. However, a prospective juror’s employment as a “morning man” in a supermarket, without more, should not lead the court to impute a bias to him which is not disclosed by the record. Such employment does not constitute per se the “interest in the cause” prohibited by this section. Scott v. Commonwealth, 1 Va. App. 447, 339 S.E.2d 899, 1986 Va. App. LEXIS 222 (1986), aff'd, 233 Va. 5 , 353 S.E.2d 460, 3 Va. Law Rep. 1839, 1987 Va. LEXIS 152 (1987).

    In defendant’s jury trial for robbery, venireman was not per se disqualified because he was a retired employee of the corporation whose money was taken in the robbery. Barrette v. Commonwealth, 11 Va. App. 357, 398 S.E.2d 695, 7 Va. Law Rep. 1055, 1990 Va. App. LEXIS 218 (1990).

    Prospective juror’s acquaintance with judge. —

    Trial court did not abuse it discretion in failing to disclose a personal acquaintance with a prospective juror prior to jury selection because the statutory mandates were followed, the parties had an opportunity to examine the venire, and the prospective juror indicated that her ability to serve fairly would not be affected. Waller v. Commonwealth, 2015 Va. App. LEXIS 73 (Va. Ct. App. Mar. 10, 2015).

    Prospective juror’s relationship with witness. —

    Circuit court erred in failing to strike a prospective juror for cause because the juror was related to a Commonwealth’s witness — a police officer/witness’s father was the juror’s first cousin — the juror’s answers to the questions posed during voir dire did not demonstrate that he could be fair and impartial where, although the juror responded affirmatively when asked if he could be fair and impartial and make a decision based on the evidence and not solely on testimony, and the Commonwealth attorney’s attempt to rehabilitate the juror was insufficient to establish that his personal relationship with the officer would not affect his ability to be impartial and give appellant a fair trial. Bell v. Commonwealth, 2017 Va. App. LEXIS 202 (Va. Ct. App. Aug. 8, 2017).

    Victim’s daughter used to be juror’s supervisor. —

    Fact that the victim’s daughter had been a sworn juror’s supervisor did not entitle defendant to a mistrial because none of the juror’s answers reflected allegiances or affiliations with the victim’s daughter or a propensity to improperly favor the victim’s testimony and thus, the evidence failed to show that the juror could not decide the case impartially. Green v. Commonwealth, 2005 Va. App. LEXIS 266 (Va. Ct. App. July 12, 2005).

    Representation of juror by plaintiff’s attorney’s firm in similar matter. —

    A prospective juror was disqualified from serving on a civil jury where the juror was represented in a similar matter by the same firm as was representing the plaintiff; such disqualification was required even though the juror stated that the circumstances of her representation would have no bearing on her judgment as a juror and that she could be totally fair to both sides, and was also required notwithstanding the fact that the venue was a community where people were going to know each other and have some kind of association. Cantrell v. Crews, 259 Va. 47 , 523 S.E.2d 502, 2000 Va. LEXIS 22 (2000).

    Venireman who was victim of crime similar to that on trial. —

    Trial court did not err in refusing to set aside for cause a venireman who acknowledged that, several months before the trial, she had herself been the victim of a crime similar to that on trial. Webb v. Commonwealth, 11 Va. App. 220, 397 S.E.2d 539, 7 Va. Law Rep. 642, 1990 Va. App. LEXIS 183 (1990).

    A panel member who had been the victim of a robbery should have been disqualified from serving on the jury in a robbery case where the questions posed to the juror by the trial court and the prosecutor and the juror’s responses during the voir dire examination failed to demonstrate that she could sit as an impartial and unbiased juror in the case; the panel member maintained throughout the voir dire that if there were any similarities between the instant robbery and her robbery, she would be inclined to believe the victim. Murray v. Commonwealth, 2001 Va. App. LEXIS 182 (Va. Ct. App. Apr. 10, 2001).

    Knowledge of conviction for offense for which accused being retried. —

    When a venireman knows of an accused’s previous conviction of the same offense for which he is being retried, the venireman cannot qualify as a juror in the new trial. Barker v. Commonwealth, 230 Va. 370 , 337 S.E.2d 729, 1985 Va. LEXIS 289 (1985).

    Mistrial should have been granted for juror who was no longer impartial. —

    Juror who, during luncheon recess, expressed to third parties a conviction that an individual who may be instrumental in obtaining the release of a person charged with a crime should “feel guilty” that the accused is “allowed to walk the streets,” charged attorneys whose clients are released of having no remorse as long as the lawyers get paid, and opined that defendant either was not going to be “as fortunate” or was “not going to get off,” was probably no longer impartial, even though he had promised the court that he could maintain an open mind on the issues until the remainder of the case was completed, and defendant’s motion for mistrial should have been granted. Haddad v. Commonwealth, 229 Va. 325 , 329 S.E.2d 17, 1985 Va. LEXIS 209 (1985).

    Association with law-enforcement personnel. —

    A prospective juror is not subject to automatic exclusion because of an association with law-enforcement personnel, provided the juror has no knowledge of the facts of the case and demonstrates impartiality toward the parties. Clozza v. Commonwealth, 228 Va. 124 , 321 S.E.2d 273, 1984 Va. LEXIS 181 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1233, 84 L. Ed. 2d 370, 1985 U.S. LEXIS 174 (1985).

    Where prospective juror had served as a chief probation and parole officer for many years, but had retired long before the trial, the court correctly determined that juror would be impartial and there was nothing in the record supporting any challenge to that determination; if a prospective juror has no knowledge of the facts of the case and demonstrates impartiality, he is not subject to a challenge for cause merely because he has had an association with law-enforcement personnel. Strickler v. Commonwealth, 241 Va. 482 , 404 S.E.2d 227, 7 Va. Law Rep. 2320, 1991 Va. LEXIS 69, cert. denied, 502 U.S. 944, 112 S. Ct. 386, 116 L. Ed. 2d 337, 1991 U.S. LEXIS 6388 (1991).

    Officer was not a “party” within the meaning of this section and Rule 3A:14(a)(1) when his sole role in a criminal prosecution was as a witness, thus, a juror’s relationship to such a police officer-witness did not require per se dismissal of that juror from the venire. Such a juror may be retained if the trial court is satisfied that the juror can set aside considerations of the relationship and evaluate all the evidence fairly. Lilly v. Commonwealth, 255 Va. 558 , 499 S.E.2d 522, 1998 Va. LEXIS 74 (1998), rev'd, 527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117, 1999 U.S. LEXIS 4006 (1999).

    In a case in which defendant appealed his conviction for rape, in violation of § 18.2-61 , he argued unsuccessfully on appeal that the trial court erred in denying his motion to strike two prospective jurors, who indicated they were friends with police officers, based on their statements during voir dire. In light of the O’Dell decision, the two prospective jurors were not impermissibly biased in favor of police testimony, bias could not be presumed from the entirety of their statements during voir dire, and defendant had made claim during jury selection that any credibility determinations involving a police officer’s testimony would be put to the jury. Weeks v. Commonwealth, 2009 Va. App. LEXIS 368 (Va. Ct. App. Aug. 18, 2009).

    Questions as to weight jurors would give to police testimony. —

    In an appropriate case, counsel may inquire of prospective jurors whether they would give greater or less weight to the testimony of a police officer than to that of another witness simply because of his official status. When it is anticipated that a major part of the prosecution’s case will hinge upon a credibility determination between prosecution witnesses who have an official status and other defense witnesses who do not, then not only is such an inquiry of whether jurors would give unqualified credence to those witnesses appropriate, but it may be required. Mullis v. Commonwealth, 3 Va. App. 564, 351 S.E.2d 919, 3 Va. Law Rep. 1567, 1987 Va. App. LEXIS 141 (1987).

    An indication on the part of a potential juror that he will give unqualified credence to the testimony of a law-enforcement officer based solely on the officer’s official status constitutes impermissible bias. Shanklin v. Commonwealth, 2000 Va. App. LEXIS 286 (Va. Ct. App. Apr. 18, 2000).

    No abuse of discretion where juror stated he could be impartial. —

    Trial court did not abuse its discretion in refusing to strike a juror who worked with a sexual assault prevention team and with sexual assault victims in a trial where the defendant was accused of sexually assaulting a woman since the juror stated that he could be impartial and listen objectively to the evidence. Vance v. Commonwealth, 2002 Va. App. LEXIS 42 (Va. Ct. App. Jan. 29, 2002).

    Trial court acted within its discretion by not striking for cause a venire member, who was a retired police officer that had relationships with an Assistant Commonwealth’s Attorney and law-enforcement witnesses and was a victim of a shooting, because, despite the prospective juror’s personal experiences and personal relationships, the juror indicated that the juror had not formed an opinion as to the guilt or innocence of defendant and the juror gave no indication of bias in favor of the Commonwealth of Virginia. Holloman v. Commonwealth, 65 Va. App. 147, 775 S.E.2d 434, 2015 Va. App. LEXIS 245 (2015).

    Trial court did not abuse its discretion in refusing to strike a juror for cause based on her emotional reaction to a witness’s testimony because before the juror stated that her ability to set aside her emotion was “better,” the trial court asked about her ability to remain impartial, and she replied that her “ability right now does not lean one way or the other.” The juror stated that she was “very clear minded” and that her “emotions would not cloud her decision” or ability to hear the evidence. Castillo v. Commonwealth, 70 Va. App. 394, 827 S.E.2d 790, 2019 Va. App. LEXIS 132 (2019).

    Trial court did not abuse its discretion in refusing to strike a juror for cause based on the timing and similarity of his neighbor’s death in relation to the instant allegations because the court construed the juror’s use of “think” to support a finding that his whole statement to the court — “I think I can listen fairly and make a judgment based on what was presented” — indicated that he was able to listen fairly and judge based upon the evidence. This finding was further supported by the context surrounding the juror’s statement. Castillo v. Commonwealth, 70 Va. App. 394, 827 S.E.2d 790, 2019 Va. App. LEXIS 132 (2019).

    Influence of jurors by another juror who was attorney. —

    Evidence failed to support a finding of juror misconduct sufficient to warrant setting aside verdict, and the trial court abused its discretion in ruling to the contrary, where viewed as a whole, it disclosed a situation where two jurors were influenced by the opinions of a third, dominant juror who was an attorney, a status which may have rendered him exempt from jury service but which did not make him incompetent to serve. Caterpillar Tractor Co. v. Hulvey, 233 Va. 77 , 353 S.E.2d 747, 3 Va. Law Rep. 1924, 1987 Va. LEXIS 173 (1987).

    The trial court’s failure to make inquiries during the voir dire concerning the opinion of jurors, together with the court’s refusal of a proposed voir dire question which would have resolved any doubt that the defendant did not have to prove his innocence, created a reasonable doubt as to the impartiality of the jury. Trent v. Commonwealth, No. 0896-85 (Ct. of Appeals Aug. 6, 1987).

    It was immaterial that a juror stated that she had a “prejudice” rather than a fixed opinion as to the guilt or innocence of the defendant. Although many of the cases holding a juror disqualified for bias are premised upon the juror’s preordained verdict, the constitutional protections do not end there. Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 349 S.E.2d 903, 1986 Va. App. LEXIS 373 (1986).

    Juror’s use of term “great prejudice” was sufficient to warrant her removal from the panel although there was no showing that her “prejudice” was tantamount to the type of prejudice required to exclude a juror for cause. Regardless of the words used by the juror, if she asserts that she is leaning one way or the other and that she would not act with total impartiality, she is biased. Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 349 S.E.2d 903, 1986 Va. App. LEXIS 373 (1986).

    Trial not impartial if juror has prejudged guilt of accused. —

    A prospective juror should have been excluded for cause where the juror was adamant in stating that she believed the defendant was guilty based on what she read in the paper and that he had to be guilty because he was present at the scene of the crime; although the juror asserted that she understood that the defendant was presumed innocent, that he was not required to present any evidence and that the burden was on the Commonwealth to prove his guilt beyond a reasonable doubt, the juror’s voir dire, when considered in its entirety, clearly indicated that the juror had formed firm opinions that would have impaired her ability to be impartial and stand indifferent in the cause. Green v. Commonwealth, 262 Va. 105 , 546 S.E.2d 446, 2001 Va. LEXIS 82 (2001).

    Circumstances under which juror voiced her concerns clearly revealed a basis necessitating her exclusion, where she withheld her remarks until after the completion of the Commonwealth’s opening statement, giving her an extended period of time to reflect on her potential prejudices, the fact that she made her statement at a time when it would disrupt the proceedings, as opposed to a time when it was specifically requested, evinced, her strong belief that she could not function impartially as a juror, and, she expressed a “great prejudice” against the defendant. Additionally, when asked by the court whether she could render a fair and impartial verdict based solely upon the evidence presented at trial, she responded: “I simply feel I have some preconceived ideas.” Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 349 S.E.2d 903, 1986 Va. App. LEXIS 373 (1986).

    Juror who believes it improper to drive after drinking may be unable to evaluate fairly and impartially the evidence of one who drives after drinking but claims nevertheless not to have been intoxicated. Henshaw v. Commonwealth, 3 Va. App. 213, 348 S.E.2d 853, 3 Va. Law Rep. 763, 1986 Va. App. LEXIS 353 (1986).

    In a prosecution for driving under the influence, it was improper for the court not to allow defendant’s counsel to ask venire members “whether any of them thought it improper to drive after drinking alcoholic beverages.” Any juror who thought it improper to drive after drinking might not have evaluated impartially his defense. Henshaw v. Commonwealth, 3 Va. App. 213, 348 S.E.2d 853, 3 Va. Law Rep. 763, 1986 Va. App. LEXIS 353 (1986).

    Trial court did not abuse its discretion in not striking three jurors for cause because the court properly concluded that the jurors were fair and impartial and would be able to render a verdict based solely on the law and the evidence, as none of the jurors indicated they would convict simply because defendant drank alcohol. All of the jurors simply stated that one should not drink and drive, but indicated that they would follow the instructions given by the court. Simmons v. Commonwealth, 63 Va. App. 69, 754 S.E.2d 545, 2014 Va. App. LEXIS 52 (2014).

    Juror’s reluctance to serve. —

    Trial court did not commit manifest error in refusing to strike juror who expressed only her personal discomfort at the prospect of continued service after the Commonwealth had presented its case, not a concern that she could not fairly and impartially consider the evidence. A juror’s reluctance to serve is not a basis for disqualification. Meekins v. Commonwealth, No. 0134-94-4 (Ct. of Appeals March 21, 1995).

    Effect of failure to timely respond to voir dire question. —

    Juror’s failure to give a timely response to the voir dire question did not prejudice appellant’s right of peremptory challenge such that the trial court erred in refusing to grant a mistrial. Notwithstanding the failure to timely respond to the question, there was no dispute at trial that juror stood indifferent to the cause. Because there was no basis for a challenge for cause, juror’s presence on jury did not affect the essential fairness of the trial, notwithstanding the impairment to appellant’s right of peremptory challenge. Taylor v. Commonwealth, 25 Va. App. 12, 486 S.E.2d 108, 1997 Va. App. LEXIS 387 (1997), aff'd, 256 Va. 214 , 505 S.E.2d 378, 1998 Va. LEXIS 106 (1998).

    Rehabilitative evidence based on assent to leading questions. —

    Where the record showed that after the juror declared her bias in favor of the prosecution, the evidence used to rehabilitate her did not come from her but was based on her mere assent to leading questions, this juror was not per se disqualified because of her declared bias; had her rehabilitative responses come from her in response to non-leading questions, the trial court would not have abused its discretion by refusing to strike her for cause. Because her rehabilitative responses consisted solely of her mere assent to the court’s leading questions, she should have been stricken for cause. David v. Commonwealth, 26 Va. App. 77, 493 S.E.2d 379, 1997 Va. App. LEXIS 715 (1997).

    Evidence of the requisite qualifications for impartial service must emanate from the juror, unsuggested by leading questions; mere assent to a trial judge’s questions or statements is not enough to rehabilitate a prospective juror who has initially demonstrated a prejudice or partial predisposition. Shanklin v. Commonwealth, 2000 Va. App. LEXIS 286 (Va. Ct. App. Apr. 18, 2000).

    No error in rejecting defendant’s challenges for cause. —

    The real test for determining whether a trial court erred in rejecting a defendant’s challenges for cause is whether the juror can disabuse his mind of his natural curiosity and decide the case on the evidence submitted and the law as propounded in the court’s instructions. Jackson v. Commonwealth, 267 Va. 178 , 590 S.E.2d 520, 2004 Va. LEXIS 8, cert. denied, 543 U.S. 891, 125 S. Ct. 168, 160 L. Ed. 2d 155, 2004 U.S. LEXIS 5213 (2004).

    It is improper to ask prospective jurors speculative questions regarding whether they would automatically impose the death penalty in certain hypothetical situations without reference to a juror’s ability to consider the evidence and follow the court’s instructions; thus, a circuit court properly seated a prospective juror, despite defendant’s challenge for cause, where, although the prospective juror stated at one point, in response to confusing questions by defense counsel, that he would automatically impose the death penalty, he subsequently clarified his position and stated that he would follow the court’s instructions and consider both sentencing alternatives. Jackson v. Commonwealth, 267 Va. 178 , 590 S.E.2d 520, 2004 Va. LEXIS 8, cert. denied, 543 U.S. 891, 125 S. Ct. 168, 160 L. Ed. 2d 155, 2004 U.S. LEXIS 5213 (2004).

    A circuit court did not err in finding that a prospective juror would be fair and impartial where it noted that the juror had given careful thought to her answers and the she did not initially understand what mitigating factors were when she answered a question respecting them because the juror made positive assertions during voir dire that she would follow the court’s instructions and consider all mitigating evidence when making her sentencing decision. Jackson v. Commonwealth, 267 Va. 178 , 590 S.E.2d 520, 2004 Va. LEXIS 8, cert. denied, 543 U.S. 891, 125 S. Ct. 168, 160 L. Ed. 2d 155, 2004 U.S. LEXIS 5213 (2004).

    Refusal to strike prospective juror for cause, where the juror was a second cousin of an assistant Commonwealth’s attorney who did not participate in the cause of action and saw the victims’ father almost daily at the father’s workplace, was not an abuse of discretion where the juror was forthright during voir dire and steadfastly and without hesitation maintained that he could give both sides a fair trial. Hayes v. Commonwealth, 2006 Va. App. LEXIS 439 (Va. Ct. App. Oct. 3, 2006).

    Trial court did not err in denying defendant’s motion to exclude several prospective jurors during voir dire because the isolated portion of voir dire defendant relied upon did not reveal that any of the prospective jurors were unable to decide the facts of the case fairly and impartially; the record did not establish that the prospective jurors whom defendant sought to exclude held firm opinions of such fixed character that repelled the presumption of innocence in a criminal case, and in whose mind the accused stood condemned already, and the prospective jurors indicated that they had no pre-existing opinions about defendant’s guilt or innocence, that they had not obtained any information about the offenses charged against defendant, that they were not biased toward either defendant or the Commonwealth, and that they could give defendant a fair and impartial trial based on the applicable law and the facts of the case. Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 707 S.E.2d 27, 2011 Va. App. LEXIS 106 (2011).

    Trial court did not err in declining to strike a prospective juror for cause because the juror was related to two witnesses for Commonwealth, because the juror confirmed that she could put aside her relationship with the witnesses and impartially evaluate their testimony and that she had no preconceived notions regarding the witnesses’ truthfulness. Mayfield v. Commonwealth, 59 Va. App. 839, 722 S.E.2d 689, 2012 Va. App. LEXIS 88 (2012).

    Trial court did not err in retaining a prospective juror in the jury pool where the juror was able to answer the trial court’s questions and both attorneys’ questions in a manner that demonstrated to the trial court her ability to be a fair and impartial juror and, irrespective of her view that an innocent person had a story to tell and should testify, could set aside that view and decide the case solely based upon the law and the evidence. Holmes v. Commonwealth, 2016 Va. App. LEXIS 214 (Va. Ct. App. Aug. 2, 2016).

    It was not an abuse of discretion to deny defendant’s challenges to two prospective jurors stating opinions as to defendant’s guilt because (1) the relevant issue was defendant’s sanity, and (2) neither prospective juror expressed a fixed opinion on that issue. Brown v. Commonwealth, 68 Va. App. 746, 813 S.E.2d 557, 2018 Va. App. LEXIS 140 (2018).

    Circuit court did not commit manifest error by denying defendant’s motion to strike a juror for cause; defendant focused on two isolated statements made by the juror, not the entirety of her voir dire, and both statements were taken out of context. The court concluded that the circuit court heard the juror emphasize the word “can” in her reply, “I think I can” be fair. Keepers v. Commonwealth, 72 Va. App. 17, 840 S.E.2d 575, 2020 Va. App. LEXIS 107 (2020).

    No error in rejecting challenges for cause. —

    In a suit based on a vehicular collision, viewed as a whole, a circuit court properly rejected a passenger’s challenges for cause to five disputed venire persons because despite some questionable comments, these venire persons demonstrated that they were able to serve impartially in the case. Hawthorne v. VanMarter, 279 Va. 566 , 692 S.E.2d 226, 2010 Va. LEXIS 54 (2010).

    Cause challenges were properly denied because the record did not demonstrate any bias on the part of the challenged jurors. Huguely v. Commonwealth, 63 Va. App. 92, 754 S.E.2d 557, 2014 Va. App. LEXIS 62 (2014).

    Voir dire questions asked were improper. —

    Defendant’s convictions for first-degree murder and use of a firearm in the commission of a felony were proper, in part because proposed voir dire question 28 posed an open-ended question to the prospective jurors likely to general speculative and irrelevant responses. The portion of question 17 that was disallowed was amply covered by other questions asked by the trial court. Thomas v. Commonwealth, 279 Va. 131 , 688 S.E.2d 220, 2010 Va. LEXIS 11 (2010), cert. denied, 562 U.S. 862, 131 S. Ct. 143, 178 L. Ed. 2d 86, 2010 U.S. LEXIS 6109 (2010).

    Voir dire question asking if jurors would view negatively the presentation of unflattering evidence regarding the victim was properly refused because (1) the question did not relate to the factors in § 8.01-358 , as the question did not reveal a juror’s relationship to the parties, interest in the case, opinion on the case, or bias or prejudice, and (2) the question could not be answered until evidence was presented. Huguely v. Commonwealth, 63 Va. App. 92, 754 S.E.2d 557, 2014 Va. App. LEXIS 62 (2014).

    Voir dire questions asked were not improper. —

    Trial court erred in not permitting defendant to voir dire the jury about the impact of his appearance in jail attire because his attire was potentially prejudicial, and the answer to his question could have disclosed such prejudice; having granted the Commonwealth’s request to require defendant to wear jail attire and shackles, and having failed to address the topic, the trial court was required to give him a full and fair opportunity to ascertain whether prospective jurors were prejudiced. Munford v. Commonwealth, 2018 Va. App. LEXIS 79 (Va. Ct. App. Mar. 27, 2018).

    Trial court’s refusal to allow defendant to voir dire the jurors about the impact of his appearance in jail attire was not harmless because defendant’s question was calculated to disclose specifically whether the jurors were influenced or affected by his attire; without the benefit of the answer the court of appeals could not know whether defendant’s attire played a role in the verdict of the jury, either as to guilt or the sentence imposed. Munford v. Commonwealth, 2018 Va. App. LEXIS 79 (Va. Ct. App. Mar. 27, 2018).

    No abuse of discretion found. —

    Per se disqualification of prospective juror is not warranted merely because a potential juror has knowledge of the conviction of a separately tried co-defendant. Ramos v. Commonwealth, 71 Va. App. 150, 834 S.E.2d 499, 2019 Va. App. LEXIS 255 (2019).

    II.Decisions Under Prior Law.

    Editor’s note.

    It is the duty of the trial court, through the legal machinery provided for that purpose, to procure an impartial jury to try every case. Salina v. Commonwealth, 217 Va. 92 , 225 S.E.2d 199, 1976 Va. LEXIS 246 (1976).

    Jurors are not required to be totally ignorant of the facts and issues involved in a case on which they sit. Breeden v. Commonwealth, 217 Va. 297 , 227 S.E.2d 734, 1976 Va. LEXIS 275 (1976).

    The purpose of the voir dire examination is to ascertain whether any juror has any interest in the case or any bias or prejudice in relation to it, and that he in fact stands “indifferent in the cause.” Questioning beyond this scope lies within the sound discretion of the trial court. Davis v. Sykes, 202 Va. 952 , 121 S.E.2d 513, 1961 Va. LEXIS 203 (1961); Hope Windows, Inc. v. Snyder, 208 Va. 489 , 158 S.E.2d 722, 1968 Va. LEXIS 138 (1968).

    Discretion of trial court. —

    The words added “may ask such person or juror directly any relevant question” do not mean that the court must do so. The language used is not mandatory but permissive and leaves the matter to the discretion of the trial court. Harmon v. Commonwealth, 209 Va. 574 , 166 S.E.2d 232, 1969 Va. LEXIS 145 (1969).

    Trial court did not err when it refused to grant defendant’s motion to strike a juror for cause because the juror never indicated that she could not perform her duties as a juror just a reluctance to serve because she was preoccupied with her schoolwork;and the trial court was not required to conclude that the juror was unable to set aside concerns over her schoolwork and serve as a competent and attentive juror. Jackson v. Commonwealth, 2014 Va. App. LEXIS 337 (Va. Ct. App. Oct. 7, 2014).

    The courts must zealously guard the precept that only jurors free from partiality may sit at trials. Durham v. Cox, 328 F. Supp. 1157, 1971 U.S. Dist. LEXIS 12410 (W.D. Va. 1971).

    To be impartial, a juror must be indifferent as he stands unsworn. Durham v. Cox, 328 F. Supp. 1157, 1971 U.S. Dist. LEXIS 12410 (W.D. Va. 1971).

    Proof of impartiality should come from prospective juror. —

    In an attempt to rehabilitate an arguably biased venirewoman, the proof that a prospective juror is impartial and fair should come from her and not be based on her mere assent to persuasive suggestions. Breeden v. Commonwealth, 217 Va. 297 , 227 S.E.2d 734, 1976 Va. LEXIS 275 (1976).

    Ascertaining mental attitude of appropriate indifference. —

    Impartiality of a juror is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the federal Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula. Durham v. Cox, 328 F. Supp. 1157, 1971 U.S. Dist. LEXIS 12410 (W.D. Va. 1971).

    There are no settled rules for determining, in a particular case, whether a juror fulfills the requirement of impartiality. Durham v. Cox, 328 F. Supp. 1157, 1971 U.S. Dist. LEXIS 12410 (W.D. Va. 1971).

    The disqualifying nature of a juror’s impression which would show partiality lies not so much in the particular content of the impression as in its weight upon the juror’s mind. The touchstone must be the juror’s ability to lay the impression aside, whatever it may be, and to base his verdict upon the law and the evidence alone. The ascertainment of whether and to what extent a particular juror possesses this quality must, of necessity, depend almost entirely upon his own acknowledgments. Durham v. Cox, 328 F. Supp. 1157, 1971 U.S. Dist. LEXIS 12410 (W.D. Va. 1971).

    Juror’s strong and deep impressions constitute sufficient objection. —

    Light impressions which may fairly be supposed to yield to the testimony that may be offered, and which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them and which will combat that testimony and resist its force, do constitute a sufficient objection to him. Durham v. Cox, 328 F. Supp. 1157, 1971 U.S. Dist. LEXIS 12410 (W.D. Va. 1971).

    The juror is the best judge of whether or not his prepossessions amount to a decided opinion. Durham v. Cox, 328 F. Supp. 1157, 1971 U.S. Dist. LEXIS 12410 (W.D. Va. 1971).

    Remarks of juror during trial, even if reprehensible, cannot be taken advantage of after verdict. For a juror to say upon hearing a fact testified by a witness, “Yes, sir; I know all about it. That’s so,” is only in obedience to the mandate of this section. Atlantic & D.R.R. v. Peake, 87 Va. 130 , 12 S.E. 348 , 1890 Va. LEXIS 102 (1890).

    Declaration of impartiality. —

    If a juror is in a frame of mind which would enable him to render an impartial verdict, uninfluenced by his previous impressions, it is but fair to presume that he will so declare when questioned as to impartiality. The fact that he does not, or is unable to do so, and thus solve the doubt, is sufficient to disqualify him. Durham v. Cox, 328 F. Supp. 1157, 1971 U.S. Dist. LEXIS 12410 (W.D. Va. 1971).

    Inability to unequivocally assert impartiality. —

    A juror who cannot unequivocally state, at the time of the trial, that he can give a defendant a fair and impartial trial, and whose answer, in response to questions concerning his bias, concludes with “Something would be there. I don’t know,” is not an impartial juror within the meaning of the Sixth Amendment to the federal Constitution and Va. Const., Art. I, § 8. Durham v. Cox, 328 F. Supp. 1157, 1971 U.S. Dist. LEXIS 12410 (W.D. Va. 1971).

    The material point for consideration in the answer of a juror as to the juror’s impartiality is his inability or unwillingness to state how far his judgment would be affected by his preconceived opinions. Where his response to the inquiry of a court to his impartiality is that he could “not now say that he had such opinion that evidence would not remove it,” and where he did not say that the opinion was of such a character that evidence would remove it, indicating that he was in doubt whether the opinion he had formed would yield to the testimony to be adduced on the trial, he has not removed doubt as to his impartiality. Durham v. Cox, 328 F. Supp. 1157, 1971 U.S. Dist. LEXIS 12410 (W.D. Va. 1971).

    Reasonable doubt as to impartiality ensures exclusion of juror. —

    Upon the issue of whether a particular juror is free from partiality, nothing should be left to inference or doubt. If there be a reasonable doubt whether the juror possesses these qualifications, that doubt is sufficient to ensure his exclusion. For, it is not only important that justice should be impartially administered, but it should also flow through channels as free from suspicion as possible. Durham v. Cox, 328 F. Supp. 1157, 1971 U.S. Dist. LEXIS 12410 (W.D. Va. 1971); Breeden v. Commonwealth, 217 Va. 297 , 227 S.E.2d 734, 1976 Va. LEXIS 275 (1976).

    By ancient rule, any reasonable doubt as to a juror’s qualifications must be resolved in favor of the accused. Breeden v. Commonwealth, 217 Va. 297 , 227 S.E.2d 734, 1976 Va. LEXIS 275 (1976).

    Where there is a reasonable doubt whether a juror is qualified, that doubt must be resolved in favor of the accused. Salina v. Commonwealth, 217 Va. 92 , 225 S.E.2d 199, 1976 Va. LEXIS 246 (1976).

    Borderline objections resolved in favor of disqualification. —

    There is no right to have a particular person on a jury, so borderline objections to the disqualification of jurors for cause should always be resolved in favor of the disqualification. Hope v. Peyton, 340 F. Supp. 197, 1972 U.S. Dist. LEXIS 14423 (W.D. Va. 1972).

    Insisting on juror who acknowledges himself to be under influences. —

    To insist on a juror’s sitting on a cause when he acknowledges himself to be under influences, no matter whether they arise from interest, from prejudices, or from religious opinions, which will prevent him from giving a true verdict according to law and evidence, would be to subvert the objects of a trial by jury, and to bring into disgrace and contempt, the proceedings of courts of justice. The courts do not sit to procure the verdicts of partial and prejudiced men; but of men honest and indifferent in causes. This is the administration of justice which the law requires. Durham v. Cox, 328 F. Supp. 1157, 1971 U.S. Dist. LEXIS 12410 (W.D. Va. 1971).

    Court’s refusal to ask requested questions. —

    The trial court did not abuse its discretion by refusing to ask whether jurors knew persons expected to testify merely to aid litigants in making peremptory challenges. Davis v. Sykes, 202 Va. 952 , 121 S.E.2d 513, 1961 Va. LEXIS 203 (1961).

    In a prosecution for larceny of oysters it was not error for the trial court to refuse defendant’s request to ask the jury whether any of them owned, leased, or operated assigned oyster grounds. Melvin v. Commonwealth, 202 Va. 511 , 118 S.E.2d 679, 1961 Va. LEXIS 136 (1961).

    The contention that the voir dire examination of the jury was improperly restricted in an action for personal injuries allegedly suffered by pedestrian struck by car driven by defendant who had been drinking beer at enlisted men’s club, by the refusal of the court to allow prospective jurors to be questioned concerning membership in social clubs or awarding damages for pain and suffering was without merit. Jackson v. Prestage, 204 Va. 481 , 132 S.E.2d 501, 1963 Va. LEXIS 175 (1963).

    In a prosecution for larceny of oysters, the fact that a member of the jury panel might have been the owner, lessee or operator of assigned oyster grounds would not have disqualified him to serve on the jury. Melvin v. Commonwealth, 202 Va. 511 , 118 S.E.2d 679, 1961 Va. LEXIS 136 (1961).

    Mention of insurance improper. —

    Deliberate injection of insurance coverage by plaintiff’s counsel on voir dire examination was improper and prejudicial to defendants’ right to a trial by an impartial jury. Hope Windows, Inc. v. Snyder, 208 Va. 489 , 158 S.E.2d 722, 1968 Va. LEXIS 138 (1968).

    Stockholders. —

    That a stockholder in a company which is a party to a lawsuit is incompetent to sit as a juror is well settled. Salina v. Commonwealth, 217 Va. 92 , 225 S.E.2d 199, 1976 Va. LEXIS 246 (1976).

    A stockholder in a corporation is not only incompetent to act as a juror in a case where the corporation is a party, he is likewise incompetent to serve where the corporation has a direct pecuniary interest in the controversy. Salina v. Commonwealth, 217 Va. 92 , 225 S.E.2d 199, 1976 Va. LEXIS 246 (1976).

    The trial court committed reversible error when it refused to dismiss four members of the venire who owned stock in one or both of the banks from which defendant was charged with larceny by check. Salina v. Commonwealth, 217 Va. 92 , 225 S.E.2d 199, 1976 Va. LEXIS 246 (1976).

    Where the criminal act suffered by the corporation has the direct effect of diminishing the assets of the corporation held for the benefit of its stockholders, a stockholder, regardless of the size of his holdings, could not be said to stand indifferent in the cause. Salina v. Commonwealth, 217 Va. 92 , 225 S.E.2d 199, 1976 Va. LEXIS 246 (1976).

    One related to the victim within the ninth degree by consanguinity or affinity is not competent to serve as a juror. Salina v. Commonwealth, 217 Va. 92 , 225 S.E.2d 199, 1976 Va. LEXIS 246 (1976).

    CIRCUIT COURT OPINIONS

    Juror’s association with law-enforcement personnel. —

    In plaintiffs’ suit alleging a police officer caused an auto accident, it was not an abuse of discretion to deny plaintiffs’ challenge for cause on grounds a prospective juror knew several police officers, since she told the trial court she could give the parties a fair and impartial trial. Hawthorne v. VanMarter, 2008 Va. Cir. LEXIS 165 (Roanoke County Dec. 23, 2008), aff'd, 279 Va. 566 , 692 S.E.2d 226, 2010 Va. LEXIS 54 (2010).

    In plaintiffs’ suit alleging a police officer caused an auto accident, it was not an abuse of discretion to deny plaintiffs’ challenge for cause. Although two prospective jurors stated that they would have a hard time finding against the officer if he were doing his job, the voir dire demonstrated that they were able to fairly and impartially perform their duties as jurors. Hawthorne v. VanMarter, 2008 Va. Cir. LEXIS 165 (Roanoke County Dec. 23, 2008), aff'd, 279 Va. 566 , 692 S.E.2d 226, 2010 Va. LEXIS 54 (2010).

    Venireman whose sibling worked for defense counsel. —

    It was not an abuse of discretion to deny plaintiffs’ challenge for cause. Although a prospective juror’s sister was a paralegal for defendant’s counsel and had worked on the case, the juror stated he had no bias towards either side. Hawthorne v. VanMarter, 2008 Va. Cir. LEXIS 165 (Roanoke County Dec. 23, 2008), aff'd, 279 Va. 566 , 692 S.E.2d 226, 2010 Va. LEXIS 54 (2010).

    Parties afforded sufficient opportunity for voir dire. —

    As voir dire lasted several hours, with plaintiffs’ counsel questioning prospective jurors on numerous issues, including whether they spoke with their mothers every day, plaintiffs were given sufficient opportunity for counsel-conducted voir dire under § 8.01-358 . Therefore, their motion to extend voir dire or to question prospective jurors individually was properly denied. Hawthorne v. VanMarter, 2008 Va. Cir. LEXIS 165 (Roanoke County Dec. 23, 2008), aff'd, 279 Va. 566 , 692 S.E.2d 226, 2010 Va. LEXIS 54 (2010).

    Confusion as to standard of proof. —

    It was not an abuse of discretion to deny plaintiffs’ challenge for cause because, although the prospective juror was confused about the standard of proof in a civil case, this did not mean that she would have been unable to follow the law as instructed by the court or be impartial. Hawthorne v. VanMarter, 2008 Va. Cir. LEXIS 165 (Roanoke County Dec. 23, 2008), aff'd, 279 Va. 566 , 692 S.E.2d 226, 2010 Va. LEXIS 54 (2010).

    Violation of oath not found. —

    While being examined under oath pursuant to § 8.01-358 , a juror had a duty to not willfully swear falsely in her responses to questions posed to her by the court and counsel during voir dire; however, the evidence was insufficient to establish that the juror swore falsely by her silence in response to questioning by the court. Lester v. Allied Concrete Co., 83 Va. Cir. 308, 2011 Va. Cir. LEXIS 245 (Charlottesville Sept. 6, 2011), dismissed, 83 Va. Cir. 308, 2011 Va. Cir. LEXIS 132 (Charlottesville Oct. 21, 2011), aff'd in part and rev'd in part, 285 Va. 295 , 736 S.E.2d 699, 2013 Va. LEXIS 8 (2013).

    Discretion of court. —

    Circuit court has the discretion, by precedent, statute and its inherent Constitutional authority to address the applicable penalty range to the jury panel in voir dire to ensure jurors stand indifferent in the cause; the discretion is not circumscribed except by the abuse of discretion standard, and in those areas where voir dire by the parties is not explicitly delimited by precedent, the circuit court retains wide latitude to act discretionarily in a manner that ensures justice. Commonwealth v. Barela, 96 Va. Cir. 404, 2017 Va. Cir. LEXIS 177 (Fairfax County Sept. 28, 2017).

    Circuit court’s duties encompass ensuring that the jury impaneled be free of such bias that would prevent a full and proper consideration of the sentencing range, and it is relevant to determine whether jurors are biased against the imposition of a mandatory minimum sentence which could cause a mistrial; also relevant is the issue of whether a jury would as a result of the presence of a mandatory minimum be predisposed to impose a greater sentence than the minimum before hearing any evidence. Commonwealth v. Barela, 96 Va. Cir. 404, 2017 Va. Cir. LEXIS 177 (Fairfax County Sept. 28, 2017).

    Circuit court had the discretion to inform the jury of the penalty range applicable in the cause at the outset of the case, and it was not required to afford the parties the opportunity to address to the jury sentencing matters in voir dire; accordingly, with concerns about misuse of the voir dire process, the circuit court reserved unto itself exclusively the practice of addressing the sentencing range to jurors. Commonwealth v. Barela, 96 Va. Cir. 404, 2017 Va. Cir. LEXIS 177 (Fairfax County Sept. 28, 2017).

    § 8.01-359. Trial; numbers of jurors in civil cases; how jurors selected from panel.

    1. Five persons from a panel of not less than 11 shall constitute a jury in a civil case when the amount involved exclusive of interest and costs does not exceed the maximum jurisdictional limits as provided in § 16.1-77 (1) . Seven persons from a panel of not less than 13 shall constitute a jury in all other civil cases except that when a special jury is allowed, 12 persons from a panel of not less than 20 shall constitute the jury.
    2. The parties or their counsel, beginning with the plaintiff, shall alternately strike off one name from the panel until the number remaining shall be reduced to the number required for a jury. Where there are more than two parties, all plaintiffs shall share three strikes between them and all defendants and third-party defendants shall share three strikes between them.
    3. In any case in which there are two or more parties on the same side, if counsel or the parties are unable to agree on the full number to be stricken, or, if for any other reason a party or his counsel fails or refuses to strike off the full number of jurors allowed such party, the clerk shall place in a box ballots bearing the names of the jurors whose names have not been stricken and shall cause to be drawn from the box such number of ballots as may be necessary to complete the number of strikes allowed the party or parties failing or refusing to strike. Thereafter, if the opposing side is entitled to further strikes, they shall be made in the usual manner.
    4. In any civil case in which the consent of the plaintiff and defendant shall be entered of record, it shall be lawful for the plaintiff to select one person who is eligible as a juror and for the defendant to select another, and for the two so selected to select a third of like qualifications, and the three so selected shall constitute a jury in the case. They shall take the oath required of jurors, and hear and determine the issue, and any two concurring shall render a verdict in like manner and with like effect as a jury of seven.

    History. Code 1950, § 8-208.21; 1973, c. 439; 1974, c. 611; 1975, c. 578; 1977, c. 617; 1985, c. 188; 2005, c. 356.

    REVISERS’ NOTE

    Section 8.01-359 makes no changes in subsections (2), (3), (4) and (5) of former § 8-208.21. The $1000 amount in subsection (2) of the former statute has been changed to the maximum jurisdictional limits as provided in § 16.1-77 (1) in subsection A. Subsection (1) of former § 8-208.21 has been incorporated into § 8.01-336 B and C.

    The 2005 amendments.

    The 2005 amendment by c. 356, in subsection A, substituted “not less than 11” for “eleven” in the first sentence, in the last sentence, “not less than 13” for “thirteen” and “not less than 20” for “twenty,” and made a minor stylistic change.

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Damages, § 87.

    CASE NOTES

    Trial court may not compel party to agree to special three-member jury because it considers that body a superior trier of fact. Painter v. Fred Whitaker Co., 235 Va. 631 , 369 S.E.2d 191, 4 Va. Law Rep. 3156, 1988 Va. LEXIS 73 (1988).

    Plaintiff may withdraw consent to special three man jury prior to trial. —

    Given the clearly expressed constitutional purpose and legislative intent to preserve the right to trial by jury in both criminal and civil cases, a consent to a special three-person jury under subsection D may be withdrawn before trial under the same conditions as are enunciated in Thomas v. Commonwealth, 218 Va. 553 , 238 S.E.2d 834 (1977). Painter v. Fred Whitaker Co., 235 Va. 631 , 369 S.E.2d 191, 4 Va. Law Rep. 3156, 1988 Va. LEXIS 73 (1988).

    § 8.01-360. Additional jurors when trial likely to be protracted.

    Whenever in the opinion of the court the trial of any criminal or civil case is likely to be a protracted one, the court may direct the selection of additional jurors who shall be drawn from the same source, in the same manner and at the same time as the regular jurors. These additional jurors shall have the same qualifications, and be considered and treated in every respect as regular jurors and be subject to examination and challenge as such jurors. When one additional juror is desired, there shall be drawn three veniremen, and the plaintiff and defendant in a civil case or the Commonwealth and accused in a criminal case shall each be allowed one peremptory challenge. When two or more additional jurors are desired there shall be drawn twice as many venireman as the number of additional jurors desired. The plaintiff and defendant in a civil case or the Commonwealth and accused in a criminal case shall each be allowed one additional peremptory challenge for every two additional jurors. The court shall select, by lot, those jurors to be designated additional jurors. The plaintiff and defendant in a civil case or the Commonwealth and accused in a criminal case shall be advised by the court which jurors are additional jurors at the time the jury is impaneled; however, in no event, shall any juror be made aware of his status as a regular or additional juror until he is excused as a juror. Before final submission of the case, the court shall excuse any additional jurors in order to reduce the number of jurors to that required by §§ 8.01-359 and 19.2-262 .

    History. Code 1950, § 8-208.22; 1973, c. 439; 1977, c. 617; 1992, c. 536; 1998, c. 279.

    Law Review.

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, see “Civil Practice and Procedure,” 26 U. Rich. L. Rev. 679 (1992).

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, §§ 22, 49.

    CASE NOTES

    Applicability. —

    The trial court did not violate defendant’s rights to strike a member of the jury pool chosen to sit on the jury, as provided by § 19.2-262 , after another chosen juror was excused, as: (1) defendant was not forced to choose between two jurors that he had previously struck; (2) his prejudice argument based on his belief that the previous jury was a better jury for him than the jury that heard the case lacked merit; and (3) both sides knew which jurors the opposing party had struck the first time, and this foresight did not prejudice either party, as the reasons for those strikes were not disclosed by either party and none of the jurors knew who originally struck the excused juror. Moreover, the trial court was not faced with replacing a juror after the jury had been sworn, as provided by § 8.01-361 , nor was the trial court faced with seating additional, alternate jurors, as provided by § 8.01-360 . Waddler v. Commonwealth, 50 Va. App. 113, 646 S.E.2d 896, 2007 Va. App. LEXIS 248 (2007).

    § 8.01-361. New juror may be sworn in place of one disabled; when court may discharge jury.

    If a juror, after he is sworn, be unable from any cause to perform his duty, the court may, in its discretion, cause another qualified juror to be sworn in his place, and in any case, the court may discharge the jury when it appears that they cannot agree on a verdict or that there is a manifest necessity for such discharge.

    History. Code 1950, § 8-208.23; 1973, c. 439; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Autrefois, Acquit and Convict, § 8.

    CASE NOTES

    Applicability. —

    The trial court did not violate defendant’s rights to strike a member of the jury pool chosen to sit on the jury, as provided by § 19.2-262 , after another chosen juror was excused, as: (1) defendant was not forced to choose between two jurors that he had previously struck; (2) his prejudice argument based on his belief that the previous jury was a better jury for him than the jury that heard the case lacked merit; and (3) both sides knew which jurors the opposing party had struck the first time, and this foresight did not prejudice either party, as the reasons for those strikes were not disclosed by either party and none of the jurors knew who originally struck the excused juror. Moreover, the trial court was not faced with replacing a juror after the jury had been sworn, as provided by § 8.01-361 , nor was the trial court faced with seating additional, alternate jurors, as provided by § 8.01-360 . Waddler v. Commonwealth, 50 Va. App. 113, 646 S.E.2d 896, 2007 Va. App. LEXIS 248 (2007).

    Broad discretion to determine whether manifest necessity exists for discharge. —

    In determining whether manifest necessity for discharge of the jury exists, a trial court is vested with broad discretion. Smith v. Commonwealth, 239 Va. 243 , 389 S.E.2d 871, 6 Va. Law Rep. 1430, 1990 Va. LEXIS 43, cert. denied, 498 U.S. 881, 111 S. Ct. 221, 112 L. Ed. 2d 177, 1990 U.S. LEXIS 4982 (1990).

    A court may discharge the jury when it appears that they cannot agree on a verdict or that there is manifest necessity for such discharge. Tyler v. Commonwealth, 21 Va. App. 693, 21 Va. App. 702, 467 S.E.2d 294, 1996 Va. App. LEXIS 127 (1996).

    Replacement of regular juror with alternate juror. —

    Trial court acted within its discretion when it replaced one of the regular jurors with the alternate juror because the regular juror informed the trial court that she was scared and worried as a result of her interaction with the young woman who was with defendant’s party in which the young woman informed the regular juror that her grandparents lived down the street from the regular juror’s house; and the trial court reasonably questioned the regular juror’s ability to remain impartial and whether she might consider things other than the law and evidence. Brown v. Commonwealth, 64 Va. App. 59, 764 S.E.2d 297, 2014 Va. App. LEXIS 366 (2014).

    Necessity for discharge is discretionary with trial court. —

    There is no general rule as to what facts and circumstances constitute such a necessity to discharge a jury, but the trial court is authorized to exercise its discretion in making the determination according to the circumstances of the case. Turnbull v. Commonwealth, 216 Va. 328 , 218 S.E.2d 541, 1975 Va. LEXIS 292 (1975) (decided under prior law).

    Discharge where jury agreed to two-thirds verdict. —

    Where the defendant was denied his right to a unanimous verdict in his first trial when the jury agreed to a two-thirds verdict, there was a manifest necessity as required by this section that the trial court declare a mistrial so that the petitioner would be assured of his right not to be convicted without the unanimous consent of the whole jury. Price v. Slayton, 347 F. Supp. 1269, 1972 U.S. Dist. LEXIS 11937 (W.D. Va. 1972) (decided under prior law).

    Manifest necessity for declaration of mistrial existed. —

    Despite the accused’s willingness to proceed with a jury of less than 12 members following the illness of a juror, where the Commonwealth insisted upon its co-equal right to a jury of 12 members, and where no alternate jurors had been impaneled, the trial court properly declared that a mistrial was necessary; and a second trial for the same offenses did not violate double jeopardy principles. King v. Commonwealth, 40 Va. App. 364, 579 S.E.2d 634, 2003 Va. App. LEXIS 255 (2003) (decided under prior law).

    In a capital case in which the circuit court determined that a juror failed to follow its instructions because the juror revealed that he had not maintained his honest convictions during the guilt phase when he expressed that he did not believe the Commonwealth had proved that defendant was guilty of capital murder after the jury had returned a unanimous guilty verdict and he refused to follow an Allen charge, the circuit court did not abuse its discretion when it declared a mistrial due to manifest necessity arising out of juror misconduct, discharged the jury, and granted a retrial of the entire case. Prieto v. Commonwealth, 278 Va. 366 , 682 S.E.2d 910, 2009 Va. LEXIS 94 (2009), cert. denied, 560 U.S. 969, 130 S. Ct. 3419, 177 L. Ed. 2d 332, 2010 U.S. LEXIS 4926 (2010), .

    No double jeopardy where manifest necessity for mistrial. —

    Although jeopardy attaches to a criminal defendant when the jury is sworn, the trial court, in its sound discretion, may declare a mistrial where there appears to be a manifest necessity for it or where the ends of justice so require. Where this is the case, the defendant may be retried without a violation of the double jeopardy clause of the Fifth Amendment. Price v. Slayton, 347 F. Supp. 1269, 1972 U.S. Dist. LEXIS 11937 (W.D. Va. 1972) (decided under prior law).

    Defendant did not object to the trial court’s declaration of a mistrial on a finding of manifest necessity under § 8.01-361 , in a way that would have preserved his double jeopardy right because counsel declined the offer to select another member of the jury and counsel’s use of the phrase “please note my exception” did not communicate anything beyond general disagreement with the ruling of the court. He failed to made known to the court the action he sought the court to take or the objection to the court’s actions and his grounds, as required by subsection A of § 8.01-384 . Kahlil v. Commonwealth, 2008 Va. App. LEXIS 226 (Va. Ct. App. May 6, 2008).

    Appearance of defendant in shackles. —

    The trial court abused its discretion by not discharging the jury when the defendant was brought into the courtroom in shackles in full view of the jury although he had only been charged with a nonviolent crime and the Commonwealth made no assertion that he was violent or dangerous. Miller v. Commonwealth, 7 Va. App. 367, 373 S.E.2d 721, 5 Va. Law Rep. 813, 1988 Va. App. LEXIS 123 (1988).

    Accused’s rights in selecting replacement juror. —

    While this section does not specifically prescribe the procedure for selecting a replacement juror, due process requires that the procedure afford the accused equivalent safeguards of his rights as those furnished when selecting additional jurors before the trial begins. Irving v. Commonwealth, 19 Va. App. 581, 453 S.E.2d 577, 1995 Va. App. LEXIS 97 (1995).

    Defendant’s convictions for statutory burglary, attempted robbery, unlawful wounding, and use of a firearm in the commission of a felony were proper because a motion for a mistrial was untimely when it was made after the jury had retired from the courtroom and defendant renewed his motions for mistrial after the jury had retired for deliberation. Clatterbaugh v. Commonwealth, 2010 Va. App. LEXIS 289 (Va. Ct. App. July 27, 2010).

    Motion for mistrial waived. —

    Defendant’s convictions for statutory burglary, attempted robbery, unlawful wounding, and use of a firearm in the commission of a felony were proper because his motions for mistrial were waived for appellate purposes since defense counsel failed to move for a mistrial when the objectionable words were spoken. Clatterbaugh v. Commonwealth, 2010 Va. App. LEXIS 289 (Va. Ct. App. July 27, 2010).

    While defendant eventually moved for a mistrial based on the inadmissible statements at the conclusion of the officer’s testimony, the objectionable element had already been injected into the case at that time; thus, the motion for a mistrial was untimely and he waived appellate review. Grant v. Commonwealth, 2016 Va. App. LEXIS 264 (Va. Ct. App. Oct. 11, 2016).

    Manifest necessity for declaration of mistrial did not exist. —

    Judge did not err by dismissing the indictments based on double jeopardy grounds because whether a witness lied was an issue of credibility for the jury, as the fact finder, to resolve; and no manifest necessity existed for a mistrial as there were narrower alternatives available because there was nothing to prevent the Commonwealth from seeking to reopen its case and present the video that defendant and the witness had met as impeachment evidence to challenge the witness’s testimony and credibility that he did not “really know” defendant, or the trial court could have allowed the case, as presented, to go to the jury and, thus, allowed the jury to assess the credibility of the witness’s testimony. Commonwealth v. Jordan, 2020 Va. App. LEXIS 169 (Va. Ct. App. June 9, 2020).

    Trial court abused its discretion by declaring a mistrial over defendant’s objection because the record was bereft of any evidence clearly reflecting that the trial court considered any less drastic alternatives and as a result, the record did not support a ruling that the mistrial was manifestly necessary at the time it was declared; Because the sua sponte mistrial during defendant’s first trial was granted in error, defendant was twice placed in jeopardy when he was tried on the same indictments before a different jury during his second trial, and therefore the trial court erred by denying defendant’s motion to dismiss the indictments. Minitee v. Commonwealth, 2020 Va. App. LEXIS 298 (Va. Ct. App. Dec. 8, 2020), rev'd, No. 210031, 2021 Va. Unpub. LEXIS 34 (Va. Dec. 16, 2021).

    CIRCUIT COURT OPINIONS

    Manifest necessity for declaration of mistrial existed. —

    Defendant’s motion to dismiss the charges against him based on double jeopardy was denied as the court found manifest necessity to discharge the jury because defense counsel’s comment that defendant had served eight months in jail was irrelevant to a determination of his guilt or innocence; the comment could appeal to the sympathy of the jury — a presumed innocent defendant already behind bars — or to the passion of the jury, suggesting defendant was being held based upon a fabrication by the victim; it could encourage an acquittal irrespective of the evidence and permit the jury to impose a sentence less than the statutory minimum, which it lacked the authority to do, by finding defendant not guilty; and it could deny him a fair trial. Commonwealth v. Taylor, 100 Va. Cir. 258, 2018 Va. Cir. LEXIS 618 (Chesterfield County Oct. 29, 2018).

    § 8.01-362. Special juries.

    Any court in a civil case in which a jury is required may allow a special jury, in which event the court shall order such jurors to be summoned as it shall designate, and from those summoned, a jury shall be made in accordance with the provisions of § 8.01-359 A. The court may, in its discretion, cause the entire cost of such jury to be taxed as a part of the cost in such action, and to be paid by the plaintiff or defendant as the court shall direct.

    History. Code 1950, § 8-208.25; 1973, c. 439; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 5B M.J. Criminal Procedure, § 49.

    § 8.01-363. When impartial jury cannot be obtained locally.

    In any case in which qualified jurors who are not exempt from serving and who the judge is satisfied can render a fair and impartial trial cannot be conveniently found in the county or city in which the trial is to be, the court may cause so many jurors as may be necessary to be summoned from any other county or city by the sheriff thereof, or by its own officer, from a list prepared pursuant to Article 3 (§ 8.01-343 et seq.) of this chapter and furnished by the circuit court of the county or city from which the jurors are to be summoned.

    History. Code 1950, § 8-208.26; 1973, c. 439; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, §§ 4, 21, 26.

    CASE NOTES

    The court may refuse to summon a jury from another county until an ineffectual effort has been made to obtain an impartial jury from the county where the trial is to take place. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406, 1962 Va. LEXIS 228 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128, 1963 U.S. LEXIS 1830 (1963) (decided under prior law).

    Trial court’s decision to import venire from another county was sound decision. —

    Trial judge’s decision to avoid any possible prejudice by importing venire from another county in homicide prosecution due to extensive news coverage of previous trial was a sound exercise of discretion for it clearly eliminated any possibility that defendant would not be tried by a fair and impartial jury. Fisher v. Commonwealth, 16 Va. App. 447, 431 S.E.2d 886, 9 Va. Law Rep. 11376, 1993 Va. App. LEXIS 171 (1993).

    Defendant was not entitled to a change of venue or venire where there was no evidence of inflammatory newspaper or radio coverage of the case, no evidence of mass prejudice, hostility or threat of mob action, either before the jury was sworn or during the course of the trial, nor unusual difficulty in securing an impartial jury. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406, 1962 Va. LEXIS 228 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128, 1963 U.S. LEXIS 1830 (1963) (decided under prior law).

    Refusal to exclude veniremen who read newspaper article not error. —

    Trial court did not err in refusing to exclude all of the veniremen who had read a news article about defendant, published two days before her trial for manslaughter, where defendant failed to show that the publicity created a widespread feeling of prejudice within the community that was reasonably certain to prevent a fair and impartial trial. Wilmoth v. Commonwealth, 10 Va. App. 169, 390 S.E.2d 514, 6 Va. Law Rep. 1854, 1990 Va. App. LEXIS 55 (1990).

    Brevity of jury’s deliberations held not to show prejudice. —

    Defendant’s contention that prejudice on the part of the jury was proved by the fact they deliberated only a relatively short time was without merit. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406, 1962 Va. LEXIS 228 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128, 1963 U.S. LEXIS 1830 (1963) (decided under prior law).

    Chapter 12. Interpleader; Claims of Third Parties to Property Distrained or Levied on, etc.

    Article 1. Interpleader.

    § 8.01-364. Interpleader.

    1. Whenever any person is or may be exposed to multiple liability through the existence of claims by others to the same property or fund held by him or on his behalf, such person may file a pleading and require such parties to interplead their claims. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant in an action who is exposed to similar liability may likewise obtain such interpleader. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in § 8.01-5 .
    2. The remedy herein provided is in addition to and in no way supersedes or limits the remedy provided by any other section of this Code.
    3. In any action of interpleader, the court may enter its order restraining all claimants from instituting or prosecuting any proceeding in any court of the Commonwealth affecting the property involved in the interpleader action until further order of the court.Such court shall hear and determine the case and may discharge the appropriate party from further liability, make the injunction permanent, and make all appropriate orders to enforce its judgment.
    4. A person interpleading may voluntarily pay or tender into court the property claimed, or may be ordered to do so by the court; and the court may thereupon order such party discharged from all or part of any liability as between the claimants of such property.

    History. Code 1950, § 8-226; 1977, c. 617; 1978, c. 415.

    REVISERS’ NOTE

    Section 8.01-364 is a new section in Title 8.01 and replaces former § 8-226. The purpose of the statute is to provide Virginia with a comprehensive modern statutory method of interpleader comparable to those which exist in most other jurisdictions, including the federal system.

    Despite the expression of apprehension to the contrary by some critics when the section was being considered, it is not intended to authorize the bringing of “class actions.” Neither its content nor its structure is adaptable to such actions.

    Like most modern interpleader statutes, § 8.01-364 is patterned in large part upon 28 U.S.C. § 1335 and FRCP 22. While the statute does not expressly supersede the traditional equity suit for interpleader it is believed that in practice the equity procedure will be displaced because of the greater availability, simplicity, and completeness of remedy which the statute affords. Cf. Bell Storage Company v. Harrison, 164 Va. 278 , 180 S.E. 320 (1935).

    It is to be noted that the statute expressly provides in subsection B “The remedy herein provided is in addition to and in no way supersedes or limits the remedy provided by any other section of this Code .” (Emphasis added.) This provision is significant because of the statutory interpleader procedure provided for in the Uniform Commercial Code (§ 8.7-603 ) for the benefit of bailees as defined in Article 7 of the U.C.C. and which is applicable principally to warehousemen and carriers.

    The fact that a rule of the Supreme Court of Virginia has been added to Part Two of the Rules, designed to implement § 8.01-364 , should not be interpreted as adding to the statute the restrictions of the traditional equity suit for interpleader which the statute itself does not require.

    Cross references.

    As to claims of other persons to attached property, see §§ 8.01-567 , 8.01-568 , 8.01-573 .

    Law Review.

    For survey of Virginia practice and pleading for the year 1977-1978, see 64 Va. L. Rev. 1501 (1978).

    For comment on interpleader in Virginia, see 13 U. Rich. L. Rev. 331 (1979).

    Michie’s Jurisprudence.

    For related discussion, see 10B M.J. Interpleader, §§ 1, 14, 15.

    CASE NOTES

    This section does not enlarge the rules governing bills of interpleader nor limit or affect equitable jurisdiction by suit. This section merely furnishes another special, cumulative and concurrent remedy. Runkle v. Runkle, 112 Va. 788 , 72 S.E. 695 , 1911 Va. LEXIS 151 (1911) (decided under prior law).

    It does not apply where defendant has guaranteed payment to plaintiff. —

    Where defendants, for whom a building was being erected, agreed with plaintiff, who furnished supplies to a contractor, to retain sufficient funds and pay plaintiff for the materials furnished, defendants were not mere stakeholders of the fund because they guaranteed the debt to plaintiff, and hence were not entitled to have plaintiff and the mechanics’ lienors interpleaded and required to litigate their respective claims. Nicholas v. Harrisonburg Bldg. & Supply Co., 181 Va. 207 , 24 S.E.2d 452, 1943 Va. LEXIS 169 (1943) (decided under prior law).

    Answer held not interpleader. —

    See Rinehart & Dennis Co. v. McArthur, 123 Va. 556 , 96 S.E. 829 , 1918 Va. LEXIS 53 (1918) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Voluntary payment doctrine. —

    Virginia’s voluntary payment doctrine barred a borrower’s claims for declaratory judgment and judgment for excessive fees because the borrower listed her townhouse for sale of her own accord, after falling into default on the promissory note, the borrower paid the full sum of attorney’s fees after consultation with counsel, did not face an immediate foreclosure on the house, and had adequate time to contest the fees in court, which would not have delayed settlement or impaired title to the house, moreover, if the borrower truly claimed entitlement to a portion of the attorney’s fees, she should have made her claim known to the title company, which would have then been obliged to file its own interpleader action. Boyer v. Cambra, 98 Va. Cir. 235, 2018 Va. Cir. LEXIS 40 (Fairfax County Mar. 15, 2018).

    Interpleading of funds allowed by court. —

    Defendant doctors’ motion for interpleader of a settlement check executed by their insurer, which was in receivership, was granted because the doctors were exposed to multiple liabilities: plaintiff malpractice claimant, her current and former attorney, and the insurer’s receiver all claimed that they were entitled to the settlement proceeds. Jones v. Caldwell, 61 Va. Cir. 408, 2003 Va. Cir. LEXIS 220 (Winchester Mar. 31, 2003).

    In an insurer’s interpleader action, seeking an order requiring it to pay the policy limits into the clerk of court pending the determination of the rights of an insured’s wife and the personal representatives of the insured’s niece and mother-in-law, the insurer was ordered to pay its $50,000 in policy limits into court because the insurer and the niece’s representative consented to the order, and § 8.01-364 authorized such an order. State Farm Mut. Auto. Ins. Co. v. Eusufzai, 75 Va. Cir. 1, 2008 Va. Cir. LEXIS 18 (Fairfax County Jan. 17, 2008).

    Interpleading of funds not allowed by court. —

    Trial court denied interpleader plaintiffs’ motion to interplead funds, pursuant to § 8.01-364 , arising from a terminated construction contract dispute, where the amount sought to be tendered to the court was still subject to judicial determination and was not a set fund; additionally, the court noted that allowing such a motion and filing of funds would limit the remedy available to all defendants under the mechanics’ lien statutes, § 43-1 et seq. Goel v. Osage Contr., Inc., 62 Va. Cir. 335, 2003 Va. Cir. LEXIS 99 (Fairfax County July 22, 2003).

    Litigation stayed pending interpleader determination. —

    In an insurer’s interpleader action, seeking an order requiring it to pay the policy limits into the clerk of court pending the determination of the rights of an insured’s wife and the personal representatives of the insured’s niece and mother-in-law and to restrain them from prosecuting any proceedings, all litigation in the Commonwealth affecting the policy limits was stayed under subsection C of § 8.01-364 pending determination of the interpleader because there were other claimants who could have greater entitlement to the insurer’s funds, and the insurer filed an interpleader action. State Farm Mut. Auto. Ins. Co. v. Eusufzai, 75 Va. Cir. 1, 2008 Va. Cir. LEXIS 18 (Fairfax County Jan. 17, 2008).

    Discharge denied. —

    In an insurer’s interpleader action, seeking an order requiring it to pay the policy limits into the clerk of court pending the determination of the rights of an insured’s wife and the personal representatives of the insured’s niece and mother-in-law, neither the insurer nor the wife could be discharged from further liability under subsection C of § 8.01-364 because the parties had not addressed the issue of whether the insurer’s duty to defend would terminate upon exhaustion of its policy limits; the parties also had not addressed the issue of whether the insured’s estate was in possession of any funds above and beyond the policy limits. State Farm Mut. Auto. Ins. Co. v. Eusufzai, 75 Va. Cir. 1, 2008 Va. Cir. LEXIS 18 (Fairfax County Jan. 17, 2008).

    Attorney fees and costs awarded. —

    The court acted within its discretion in awarding attorney fees and costs to the bank, because the bank acted in good faith and showed a willingness throughout the proceedings to submit the disputed funds to the court so that the court could determine the rightful owner of those funds. Schlegel v. Bank of Am., N.A., 67 Va. Cir. 108, 2005 Va. Cir. LEXIS 167 (Charlottesville Mar. 1, 2005), aff'd in part and rev'd in part, 271 Va. 542 , 628 S.E.2d 362, 2006 Va. LEXIS 37 (2006).

    Article 2. Claims of Third Parties to Property Distrained or Levied on.

    § 8.01-365. How claim of third party tried.

    When a writ of fieri facias issued from a circuit court, or a warrant of distress, is levied on property, or when a lien is acquired on money or other personal estate by virtue of § 8.01-501 , and when some other person than the one against whom the process issued claims the property, money, other personal estate, or some part or the proceeds thereof, then either (i) the claimant, if such suspending bond as is hereinafter mentioned has been given, (ii) the officer having such process, if no indemnifying bond has been given, or (iii) the party who had the process issued, may apply to try the claim, by motion to the adverse party, to the circuit court of the county or city wherein the property, money, or other personal estate is located.

    History. Code 1950, § 8-227; 1962, c. 10; 1977, c. 617.

    REVISERS’ NOTE

    Although the wording and sequence of former § 8-227 has been altered in § 8.01-365 to conform more closely with § 16.1-119 (Proceedings to try title to property levied on under distress or execution), the substance of former § 8-227 remains unchanged. However, its application has been restricted to circuit courts, leaving to Title 16.1 the appropriate provisions for the district courts.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, §§ 42, 62.

    CASE NOTES

    Editor’s note.

    Some of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, may refer to former provisions.

    Section is substitute for replevin. —

    The statutory proceeding by interpleader in Virginia is a substitute for the common-law writ of replevin. Kiser v. Hensley, 123 Va. 536 , 96 S.E. 777 , 1918 Va. LEXIS 50 (1918) (see Allen v. Hart, 59 Va. (18 Gratt.) 722 (1868)).

    This section and § 8.01-370 are remedial and are to be liberally construed, and are not to be construed in such manner as to make them unconstitutional if it can be avoided. Sauls v. Thomas Andrews & Co., 163 Va. 407 , 175 S.E. 760 , 1934 Va. LEXIS 193 (1934).

    A motion to quash under § 8.01-477 may not be used by strangers to the underlying judgment as a substitute for the statutory method prescribed in this section or in lieu of a common law action of trespass. The application of § 8.01-477 is limited to attacks on the regularity and validity of a writ of fieri facias. Barbuto v. Southern Bank, 231 Va. 63 , 340 S.E.2d 813, 1986 Va. LEXIS 164 (1986).

    Third parties who claimed ownership of certain property levied upon improperly sought to prosecute a common law action of trespass and to simultaneously claim ownership of the property seized in the levy. This was an improper use of the statutory motion to quash. Their remedy was under this section, a statute specifically providing strangers to the underlying judgment a swift, direct, and summary method to determine conflicting ownership of property seized in a levy. Barbuto v. Southern Bank, 231 Va. 63 , 340 S.E.2d 813, 1986 Va. LEXIS 164 (1986).

    CIRCUIT COURT OPINIONS

    Bond requirement. —

    Trial court found that in a garnishment case, where the prospective intervenor filed a motion to intervene to obtain the funds that the bank had tendered to the court from the judgment debtor’s account, after the judgment creditor had served a garnishment against the bank and the prospective intervenor claimed that the funds did not belong to the judgment debtor but belonged to the prospective intervenor, the prospective intervenor was required to post a suspending bond in order to intervene; none of the statutes relevant or possibly relevant to the garnishment action made the posting of such a bond a prerequisite to filing a proceeding in court claiming ownership of money subject to a garnishment and the judgment creditor could not show that it would be prejudiced by the prospective intervenor’s failure to post one. Rapid Indus. Plastics Co. v. Am. Plastics, L.L.C., 70 Va. Cir. 267, 2006 Va. Cir. LEXIS 166 (Richmond Mar. 3, 2006).

    § 8.01-366. Sale of property when no forthcoming bond is given.

    In such case as is mentioned in § 8.01-365 , when no bond is given for the forthcoming of the property, the court may, before a decision of the rights of the parties, make an order for the sale of the property, or any part thereof, on such terms as the court may deem advisable, and for the proper application of the proceeds. The court may make such orders and enter such judgment as to costs and all other matters as may be just and proper.

    History. Code 1950, § 8-228; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-366 is former § 8-228 with minor changes. The reference to the “judge thereof in vacation” has been omitted. In addition, the words “in any case before mentioned in this chapter,” which appeared in the last sentence of the former statute, have been deleted as unnecessary in view of § 8.01-364 C.

    CIRCUIT COURT OPINIONS

    Bond requirement. —

    Trial court found that in a garnishment case, where the prospective intervenor filed a motion to intervene to obtain the funds that the bank had tendered to the court from the judgment debtor’s account, after the judgment creditor had served a garnishment against the bank and the prospective intervenor claimed that the funds did not belong to the judgment debtor but belonged to the prospective intervenor, the prospective intervenor was required to post a suspending bond in order to intervene; none of the statutes relevant or possibly relevant to the garnishment action made the posting of such a bond a prerequisite to filing a proceeding in court claiming ownership of money subject to a garnishment and the judgment creditor could not show that it would be prejudiced by the prospective intervenor’s failure to post one. Rapid Indus. Plastics Co. v. Am. Plastics, L.L.C., 70 Va. Cir. 267, 2006 Va. Cir. LEXIS 166 (Richmond Mar. 3, 2006).

    § 8.01-367. Indemnifying bond to officer.

    1. If any officer levies or is required to levy a fieri facias, an attachment, or a warrant of distress on property, and the officer doubts whether such property is liable to such levy, he may give the plaintiff, his agent or attorney-at-law, notice that an indemnifying bond is required in the case; bond may thereupon be given by any person, with good security, payable to the officer in a penalty equal to the value of the property in the case of a fieri facias or a warrant of distress on property and equal to double the value of the property in case of an attachment, with condition to indemnify him against all damage which he may sustain in consequence of the seizure or sale of such property and to pay to any claimant of such property all damage which he may sustain in consequence of such seizure or sale, and also to warrant and defend to any purchaser of the property such estate or interest therein as is sold. If the officer has performed more than one levy for a single plaintiff, the officer may permit the plaintiff to give a single indemnifying bond for such levies, provided that any such bond shall be in a penalty amount not less than the aggregate sum of the penalty amounts of the bonds required had the levies been bonded individually.Provided, however, that when the property claimed to be liable by virtue of the process aforesaid is in the possession of any of the parties against whom such process was issued but is claimed by any other person or is claimed to belong to any other person, the officer having such process in his hands to be executed shall proceed to execute the same notwithstanding such claim unless the claimant of the property or someone for him shall give a suspending bond as provided by § 8.01-370 and shall within 30 days after such bond is given proceed to have the title to the property settled in accordance with the provisions of this chapter. And in case such claimant or someone for him fails to give such suspending bond, or having given such bond fails to have such proceedings instituted to settle the title thereto, the claimant shall be barred from asserting such claim to the property and the officer shall proceed to execute the process, and the officer who executes such process shall not be liable to any such claimant for any damages resulting from the proper execution of such process as is required by this section. If an indemnifying bond is not given within a reasonable time after such notice, the officer may refuse to levy on such property, or may restore it to the person from whose possession it was taken. If such bond is given, the officer shall proceed to levy (i) if he has not already done so, or (ii) if necessary to restore a levy previously released.
    2. The Commonwealth shall not be required to give an indemnifying bond under the provisions of this section.

    History. Code 1950, § 8-229; 1968, c. 490; 1972, c. 327; 1977, c. 617; 2005, c. 690; 2012, c. 206.

    REVISERS’ NOTE

    Section 8.01-367 is taken from former § 8-229. The provision in the former section that “the property shall be conclusively presumed to be the property of the party in possession” if the indemnifying bond has not been given, has been removed. But the officer is absolved of liability to the adverse claimant failing to give the bond.

    The 2005 amendments.

    The 2005 amendment by c. 690 added the last sentence to the first paragraph and made minor stylistic changes.

    The 2012 amendments.

    The 2012 amendment by c. 206 designated the existing provisions of the section as subsection A; and added subsection B.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, §§ 42, 62.

    CASE NOTES

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, may refer to former provisions.

    Constable may take bond. —

    See Davis v. Davis, 43 Va. (2 Gratt.) 363, 1845 Va. LEXIS 56 (1845).

    One indemnifying bond may be taken on several executions. Davis v. Davis, 43 Va. (2 Gratt.) 363, 1845 Va. LEXIS 56 (1845).

    And it is not necessary to set out the executions in the bond. Davis v. Davis, 43 Va. (2 Gratt.) 363, 1845 Va. LEXIS 56 (1845).

    Omission of provision for protection of purchaser does not invalidate bond. —

    A bond under this section may be sufficient for the protection of the sheriff from the action of the claimant of the property, although it does not contain a provision for the protection of the purchaser of the property. Aylett v. Roane, 42 Va. (1 Gratt.) 282, 1844 Va. LEXIS 32 (1844).

    Bond executed by one partner in partnership name is sufficient. —

    Where the plaintiffs in the execution are a firm, a bond executed by one of the firm, in the partnership name, is a good bond of the person so executing it, and the recital in the bond of the names of the plaintiffs in the execution by their partnership name is sufficient. Davis v. Davis, 43 Va. (2 Gratt.) 363, 1845 Va. LEXIS 56 (1845).

    This section does not preclude injunction to prevent sale. —

    A sheriff having doubts as to the title to property taken in execution may demand from the creditor an indemnifying bond, yet this remedy is not in exclusion of a bill of injunction to prevent the sale. Wilson v. Butler, 17 Va. (3 Munf) 559, 1813 Va. LEXIS 12 (1813).

    But the sheriff, having received the bond of indemnity, is bound to sell the property taken in execution, whether it belongs to the debtor or not. Stone v. Pointer, 19 Va. (5 Munf) 287, 1816 Va. LEXIS 47 (1816).

    And he is liable if he releases property instead of requiring bond. —

    Where an officer released property as to which the debtor wrongfully claimed the benefit of the homestead exemption without demanding an indemnifying bond of the creditor, or even notifying him of the claim of homestead, and the property was subsequently lost to the creditor, the sheriff and his sureties were liable to the creditor for the resulting damages. Sage v. Dickinson, 74 Va. (33 Gratt.) 1, 74 Va. (33 Gratt.) 361, 1880 Va. LEXIS 18 (1880).

    But he is excused if creditor fails to give bond on demand. —

    A deputy was excusable for not levying and selling under the circumstances, where after the one who had issued the fieri facias had failed to give the indemnifying bond demanded of him; and, therefore the creditor could not recover against the sheriff and his sureties, on his official bond, the debt thus lost by the failure to levy. Huffman v. Leffell, 73 Va. (32 Gratt.) 41, 1879 Va. LEXIS 45 (1879).

    Remedy to prevent levy and stop sale. —

    A third party who claims ownership of property that has been levied on, or is about to be levied on, has an orderly remedy under this section and § 8.01-370 not only to stop the sale after levy but to prevent the levy from being made in the first place. This is accomplished by giving a suspending bond and by proceeding within 30 days to have title to the property settled. Alternatively, the third party has the option to file an action for common law trespass in a separate proceeding. Barbuto v. Southern Bank, 231 Va. 63 , 340 S.E.2d 813, 1986 Va. LEXIS 164 (1986).

    Action must be brought in the name of the officer. —

    An action on an indemnifying bond given to a sheriff for sale of property taken in execution must be brought in the name of the sheriff, but it can only be maintained at the relation of the party injured. But though the party injured is not named as relator in the declaration or other pleadings, yet if the breach assigned is that the obligors did not pay the damages sustained by B. by reason of the sale, and if a special verdict in the cause shows that B. was considered the real plaintiff, this is enough to show that B. is the relator; or supposing the pleadings defective in this particular, the defect is cured after verdict by the statute of jeofails. Lewis v. Adams, 33 Va. (6 Leigh) 320, 1835 Va. LEXIS 35 (1835).

    By holder of legal title to property. —

    An indemnifying bond given to a sheriff, under this section, can only be put in suit at the relation of the person having the legal title to the property taken in execution and sold by the sheriff, not at the relation of any person having an equitable right therein. Garland v. Jacobs, 29 Va. (2 Leigh) 651, 1830 Va. LEXIS 56 (1830).

    Recovery is value of goods not returned. —

    Recovery on a replevin bond, when part of the goods only are returned, is the value of the goods not so returned. Kiser v. Hensley, 123 Va. 536 , 96 S.E. 777 , 1918 Va. LEXIS 50 (1918).

    Or value of claimant’s interest therein. —

    In an action on an indemnifying bond, the relator claims title to the property sold, under a sale made by one partner without the knowledge or consent of the other, of partnership property. The relator may recover for the undivided interest of the partner who made the sale, under a general allegation in the declaration of his ownership of the property. Forkner v. Stuart, 47 Va. (6 Gratt.) 197, 1849 Va. LEXIS 37 (1849).

    And evidence is admissible to show claimant is only life tenant. —

    In debt on an indemnifying bond given to a sheriff for seizure and sale of a slave under execution, it is competent to the defendants to prove, that the claimant had only a life estate in the slave, though it appear that he had bona fide purchased of the tenant for life an absolute estate. Stevens v. Bransford, 33 Va. (6 Leigh) 246, 1835 Va. LEXIS 29 (1835).

    Plea of bond need not set out judgment. —

    In an action against a constable, for taking the property of the plaintiff, upon three executions against a third person, the constable filed a special plea, in which he set up an indemnifying bond executed by the plaintiffs in the executions. It was held that it is not necessary to set out the judgments in the plea. Davis v. Davis, 43 Va. (2 Gratt.) 363, 1845 Va. LEXIS 56 (1845).

    Defendant must crave oyer to show variance in bond and motion. —

    A motion on an indemnifying bond in the name of the administrator de bonis non of the high sheriff, sets out the bond as made to himself, and without craving oyer of the bond, the defendants demur. As there is enough in the motion to enable the court to proceed to judgment according to law and the very right of the cause, the demurrer should be overruled. To take advantage by demurrer of a variance between the motion and the bond declared on, the defendant should crave oyer of the bond. Duval v. Malone, 55 Va. (14 Gratt.) 24, 1857 Va. LEXIS 20 (1857) (see Kevan v. Branch, 42 Va. (1 Gratt.) 274 (1844); Dickinson v. Smith, 46 Va. (5 Gratt.) 135 (1848)).

    CIRCUIT COURT OPINIONS

    Bond requirement. —

    Trial court found that in a garnishment case, where the prospective intervenor filed a motion to intervene to obtain the funds that the bank had tendered to the court from the judgment debtor’s account, after the judgment creditor had served a garnishment against the bank and the prospective intervenor claimed that the funds did not belong to the judgment debtor but belonged to the prospective intervenor, the prospective intervenor was required to post a suspending bond in order to intervene; none of the statutes relevant or possibly relevant to the garnishment action made the posting of such a bond a prerequisite to filing a proceeding in court claiming ownership of money subject to a garnishment and the judgment creditor could not show that it would be prejudiced by the prospective intervenor’s failure to post one. Rapid Indus. Plastics Co. v. Am. Plastics, L.L.C., 70 Va. Cir. 267, 2006 Va. Cir. LEXIS 166 (Richmond Mar. 3, 2006).

    § 8.01-368. Return of such bond to clerk’s office.

    Any indemnifying bond taken by an officer under the preceding section shall be returned by him within twenty-one days to the clerk’s office of the circuit court of the county or city wherein the property levied on, or to be levied on, is located.

    History. Code 1950, § 8-230; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-368 is former § 8-230, modified to conform to present practice of the officer’s return of an indemnifying bond and to eliminate procedural details felt to be unnecessary; e.g., the time for return of the bond by the officer is changed from twenty to twenty-one days.

    CIRCUIT COURT OPINIONS

    Bond requirement. —

    Trial court found that in a garnishment case, where the prospective intervenor filed a motion to intervene to obtain the funds that the bank had tendered to the court from the judgment debtor’s account, after the judgment creditor had served a garnishment against the bank and the prospective intervenor claimed that the funds did not belong to the judgment debtor but belonged to the prospective intervenor, the prospective intervenor was required to post a suspending bond in order to intervene; none of the statutes relevant or possibly relevant to the garnishment action made the posting of such a bond a prerequisite to filing a proceeding in court claiming ownership of money subject to a garnishment and the judgment creditor could not show that it would be prejudiced by the prospective intervenor’s failure to post one. Rapid Indus. Plastics Co. v. Am. Plastics, L.L.C., 70 Va. Cir. 267, 2006 Va. Cir. LEXIS 166 (Richmond Mar. 3, 2006).

    § 8.01-369. Effect of such bond.

    The claimant or purchaser of such property shall, after such bond is so returned, be barred from any action against the officer levying thereon, provided the security therein be good at the time of taking it.

    History. Code 1950, § 8-231; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 50.

    CASE NOTES

    Editor’s note.

    Officer has discharged his duty in taking indemnifying bond. —

    By his act in giving an indemnifying bond under this section, the creditor agrees to save the officer harmless from the claims of any third party, and when the officer takes from an execution creditor the proper indemnifying bond with ample security and then proceeds to sell and pay the money received to the execution creditor, he has discharged his duties to all parties. Wheeler v. City Sav. & Loan Corp., 156 Va. 402 , 157 S.E. 726 , 1931 Va. LEXIS 199 (1931).

    If bond conforms to § 8.01-367 . —

    The constable, sheriff, or other officer who sells property taken under execution is not protected from an action of trespass by the claimant, unless the indemnifying bond taken by him under § 8.01-367 conforms in all respects to that section, and particularly contains the clause inserted for the benefit of the person claiming title to the property. M’Clunn v. Steel, 4 Va. (2 Va. Cas.) 256 (1821).

    And obligors thereon are solvent. —

    If the claimant should bring his action against the officer, it will not be sufficient for him to show that he has established his claim to the property in the action on the indemnifying bond; he must go further, and show that the officer failed in his official duty, in not taking a solvent bond. Stevens v. Bransford, 33 Va. (6 Leigh) 246, 1835 Va. LEXIS 29 (1835).

    Claimant’s sole remedy is against such obligors. —

    Claimant was barred by this section from pursuing the property in the possession of a purchaser at an execution sale, and his remedy was not against the officer and his surety but against the obligors on the indemnifying bond. Wheeler v. City Sav. & Loan Corp., 156 Va. 402 , 157 S.E. 726 , 1931 Va. LEXIS 199 (1931).

    § 8.01-370. Claimant may give suspending bond; proceedings to have title settled; action on indemnifying or suspending bond.

    The sale of any property levied on under a fieri facias or distress warrant shall be suspended at the instance of any claimant thereof who will deliver to the officer a suspending bond, with good security, in a penalty equal to double the value thereof, payable to such officer, with condition to pay to all persons who may be injured by suspending the sale thereof, until the claim thereto is adjudicated or otherwise adjusted, such damage as they may sustain by such suspension. If the property claimed to be liable by virtue of such process is in the possession of any of the parties against whom such process was issued, but is claimed by any other person, or is claimed to belong to any other person, the officer having such process in his hands to be executed shall, whether an indemnifying bond has been given or not, after notice to the claimant, or his agent, proceed to execute the same notwithstanding such claim, unless the claimant of such property or someone for him shall give the suspending bond aforesaid, and shall within thirty days after such bond is given proceed to have the title to such property settled in accordance with the provisions of this chapter. And in case such claimant or someone for him fails to give a suspending bond, or having given such bond fails to have such proceedings instituted to settle the title thereto, the claimant shall be barred from asserting such claim to the property and the sale of the property shall proceed. For the purpose of this section, a person making a claim of ownership of property on behalf of another shall be deemed to be the latter’s agent, and the notice required by this section may be verbal or in writing. Upon any such indemnifying or suspending bond as is mentioned in this section or § 8.01-369 an action may be prosecuted in the name of the officer for the benefit of the claimant, creditor, purchaser, or other person injured, and such damages recovered in such action as a jury may assess. The action may be prosecuted and a writ of fieri facias had in the name of such officer when he is dead in like manner as if he were alive.

    History. Code 1950, § 8-232; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-370 is former § 8-232. The provision which appeared in the former section with respect to the conclusiveness of ownership when the required bond was not given, has been eliminated. See Reviser’s note to § 8.01-367 . Also the word “suspending” has been inserted before “bond” in several places to remove any confusion as to the type of bond addressed by this section.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 42.

    CASE NOTES

    Editor’s note.

    Some of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, may refer to former provisions.

    Remedy to prevent levy and stop sale. —

    A third party who claims ownership of property that has been levied on, or is about to be levied on, has an orderly remedy under § 8.01-367 and this section not only to stop the sale after levy but to prevent the levy from being made in the first place. This is accomplished by giving a suspending bond and by proceeding within 30 days to have title to the property settled. Alternatively, the third party has the option to file an action for common law trespass in a separate proceeding. Barbuto v. Southern Bank, 231 Va. 63 , 340 S.E.2d 813, 1986 Va. LEXIS 164 (1986).

    Claimant must give bond and institute proceedings. —

    Where an execution is levied on property in the possession of the execution debtor, and the property is claimed by another, it is necessary, under the provisions of this section, not only for the claimant to execute a suspending bond, but also, within 30 days after the execution of such bond, to institute proceedings to settle the title to the property so levied on, else it will be conclusively presumed to be the property of the party in possession. Fields-Watkins Co. v. Hensley, 117 Va. 661 , 86 S.E. 113 , 1915 Va. LEXIS 82 (1915).

    Failure to do so within 30 days establishes validity of levy. —

    Where the sole defense in distress proceedings was that the property levied upon was not that of the defendant therein, but no suspending bond had been given and no effort made to have title settled until more than 30 days had elapsed from the date of service of notice under this section or the time required to give the suspending bond, this section established the conclusive presumption that the property in question was the property of the party in possession, and concluded the question of ownership and established the validity of the levy. Boswell v. Lipscomb, 172 Va. 33 , 200 S.E. 756 , 1939 Va. LEXIS 218 (1939).

    And claimant then holds property at his risk. —

    Where claimant failed to institute his interpleader proceedings within 30 days from the date of the suspending bond, it was held that from the expiration of the period of 30 days, the possession of the property by the claimant was unlawful, and hence at his risk. Kiser v. Hensley, 123 Va. 536 , 96 S.E. 777 , 1918 Va. LEXIS 50 (1918).

    When bond was given and proceedings instituted is question for court. —

    When the suspending bond was given and when the proceedings were instituted are questions to be determined by the court as they appear on the record, and it is error to refer them to the jury. Fields-Watkins Co. v. Hensley, 117 Va. 661 , 86 S.E. 113 , 1915 Va. LEXIS 82 (1915).

    When memorandum has been made, process issued and served, and petition filed, there has been such an appeal to the court as to bring the controversy within the purview of this section. Sauls v. Thomas Andrews & Co., 163 Va. 407 , 175 S.E. 760 , 1934 Va. LEXIS 193 (1934).

    CIRCUIT COURT OPINIONS

    Bond requirement. —

    Trial court found that in a garnishment case, where the prospective intervenor filed a motion to intervene to obtain the funds that the bank had tendered to the court from the judgment debtor’s account, after the judgment creditor had served a garnishment against the bank and the prospective intervenor claimed that the funds did not belong to the judgment debtor but belonged to the prospective intervenor, the prospective intervenor was required to post a suspending bond in order to intervene; none of the statutes relevant or possibly relevant to the garnishment action made the posting of such a bond a prerequisite to filing a proceeding in court claiming ownership of money subject to a garnishment and the judgment creditor could not show that it would be prejudiced by the prospective intervenor’s failure to post one. Rapid Indus. Plastics Co. v. Am. Plastics, L.L.C., 70 Va. Cir. 267, 2006 Va. Cir. LEXIS 166 (Richmond Mar. 3, 2006).

    § 8.01-371. How forthcoming bond taken of claimant of property the sale whereof has been suspended.

    The sheriff or other officer levying a writ of fieri facias or distress warrant on property, the sale of which is suspended under this chapter at the instance of a claimant thereof, may, if such claimant desires the property to remain in such possession as it was immediately before the levy, and if the case be one in which a bond for the forthcoming of the property is not prohibited from being taken from the debtor by § 8.01-531 , take from the claimant a bond, with sufficient surety, in a penalty equal to double the value of the property, payable to the creditor, with such recital as is required in a forthcoming bond taken from the debtor, and with condition that the property shall be forthcoming at such day and place of sale as may be thereafter lawfully appointed. Such property may then be permitted to remain, at the risk of such claimant, in such possession as it was immediately before the levy; and §§ 8.01-130.7 , 8.01-527 , 8.01-528 , 8.01-530 and 8.01-531 shall apply to such forthcoming bond in like manner as to a forthcoming bond taken from the debtor.

    History. Code 1950, § 8-233; 1977, c. 617.

    Editor’s note.

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “§§ 8.01-130.7 , 8.01-527 , 8.01-528 , 8.01-530 and 8.01-531 ” for “§§ 8.01-527 , 8.01-528 , 8.01-530 , 8.01-531 and 55-232.”

    Law Review.

    For survey of Virginia commercial law for the year 1974-1975, see 61 Va. L. Rev. 1668 (1975).

    CASE NOTES

    Editor’s note.

    Some of the cases cited below were decided under corresponding provisions of former law. The terms “the statute” and “this section,” as used below, may refer to former provisions.

    To be good as statutory bonds, bonds must substantially conform to the statutes authorizing their execution. Under this section, a bond payable to the sheriff and not to the creditor, which does not recite the amount due upon the execution, including the fee for taking the bond, commissions and other charges, and conditioned that the claimant shall have property forthcoming and subject to the order of the court, instead of forthcoming at such time and place of sale as may be thereafter lawfully appointed, as required by the statute, is not good as a statutory forthcoming bond. Kiser v. Hensley, 123 Va. 536 , 96 S.E. 777 , 1918 Va. LEXIS 50 (1918).

    But bond not good under this section may be construed as at common law. —

    It is proper to construe a bond not valid as a statutory forthcoming bond under this section, but good as a common-law bond, as it would have been construed at common law, if it had been a replevin bond, or a redelivery bond, in an action of replevin. Kiser v. Hensley, 123 Va. 536 , 96 S.E. 777 , 1918 Va. LEXIS 50 (1918).

    Measure of recovery on such bonds is value of property. —

    The measure of recovery on a bond given by a claimant to sheriff for property levied on under an execution, which bond was not valid as a statutory forthcoming bond under this section, but was good as a common-law bond, for failure to produce for sale the property levied on, was not the execution debts, principal, interest, costs and commissions, but the value of the property levied upon, and it may be doubted whether, even if the bond had conformed strictly to the statute, the measure would have been different. If the value of the property levied on had exceeded the amount of the execution, the measure of recovery would have been the amount of the execution, interest, costs, etc. Kiser v. Hensley, 123 Va. 536 , 96 S.E. 777 , 1918 Va. LEXIS 50 (1918).

    If a sheriff improperly refuses to receive a forthcoming bond he is responsible for damages to those who may be injured. Hamilton v. Shrewsbury, 25 Va. (4 Rand.) 427, 1826 Va. LEXIS 57 (1826) (see also Saunders v. Pate, 25 Va. (4 Rand.) 8 (1826)).

    CIRCUIT COURT OPINIONS

    Bond requirement. —

    Trial court found that in a garnishment case, where the prospective intervenor filed a motion to intervene to obtain the funds that the bank had tendered to the court from the judgment debtor’s account, after the judgment creditor had served a garnishment against the bank and the prospective intervenor claimed that the funds did not belong to the judgment debtor but belonged to the prospective intervenor, the prospective intervenor was required to post a suspending bond in order to intervene; none of the statutes relevant or possibly relevant to the garnishment action made the posting of such a bond a prerequisite to filing a proceeding in court claiming ownership of money subject to a garnishment and the judgment creditor could not show that it would be prejudiced by the prospective intervenor’s failure to post one. Rapid Indus. Plastics Co. v. Am. Plastics, L.L.C., 70 Va. Cir. 267, 2006 Va. Cir. LEXIS 166 (Richmond Mar. 3, 2006).

    § 8.01-372. Sale despite bond when property perishable, etc.

    In such case as is mentioned in § 8.01-371 and whether a forthcoming bond is given or not, if the property be expensive to keep or perishable, the court in which proceedings in the case under § 8.01-365 are pending or may be had, may, before a decision of the rights of the parties under such proceedings, on the application of such claimant or of the surety in such suspending or forthcoming bond, after reasonable notice of the intended application has been given by such claimant or the surety to the other parties in the case, order a sale of the property, or any part thereof, on such terms as the court may deem advisable. The court shall apply the proceeds according to the rights of the parties when determined.

    History. Code 1950, § 8-234; 1977, c. 617.

    CIRCUIT COURT OPINIONS

    Bond requirement. —

    Trial court found that in a garnishment case, where the prospective intervenor filed a motion to intervene to obtain the funds that the bank had tendered to the court from the judgment debtor’s account, after the judgment creditor had served a garnishment against the bank and the prospective intervenor claimed that the funds did not belong to the judgment debtor but belonged to the prospective intervenor, the prospective intervenor was required to post a suspending bond in order to intervene; none of the statutes relevant or possibly relevant to the garnishment action made the posting of such a bond a prerequisite to filing a proceeding in court claiming ownership of money subject to a garnishment and the judgment creditor could not show that it would be prejudiced by the prospective intervenor’s failure to post one. Rapid Indus. Plastics Co. v. Am. Plastics, L.L.C., 70 Va. Cir. 267, 2006 Va. Cir. LEXIS 166 (Richmond Mar. 3, 2006).

    § 8.01-373. When property sells for more than claim, how surplus paid.

    When property, the sale of which is indemnified, sells for more than enough to satisfy the execution, attachment, or distress warrant under which it is taken, the surplus shall be paid by the officer into the court where the indemnifying bond is required to be returned, or as such court may direct. The court wherein the surplus is held may make such order for the disposition thereof, either temporarily until the question as to the title of the property sold is determined, or absolutely, as in respect to the rights of those interested may seem to it proper.

    History. Code 1950, § 8-235; 1977, c. 617.

    CIRCUIT COURT OPINIONS

    Bond requirement. —

    Trial court found that in a garnishment case, where the prospective intervenor filed a motion to intervene to obtain the funds that the bank had tendered to the court from the judgment debtor’s account, after the judgment creditor had served a garnishment against the bank and the prospective intervenor claimed that the funds did not belong to the judgment debtor but belonged to the prospective intervenor, the prospective intervenor was required to post a suspending bond in order to intervene; none of the statutes relevant or possibly relevant to the garnishment action made the posting of such a bond a prerequisite to filing a proceeding in court claiming ownership of money subject to a garnishment and the judgment creditor could not show that it would be prejudiced by the prospective intervenor’s failure to post one. Rapid Indus. Plastics Co. v. Am. Plastics, L.L.C., 70 Va. Cir. 267, 2006 Va. Cir. LEXIS 166 (Richmond Mar. 3, 2006).

    Chapter 13. Certain Incidents of Trial.

    § 8.01-374. Procedure when original papers in cause are lost.

    If in any case the original papers therein, or any of them, or the record for or in an appellate court, or any paper filed or connected with such record, be lost or destroyed, any party to such case may present to the court wherein the case is, or in which it would or ought to be, but for such loss or destruction, a petition verified by affidavit stating such loss or destruction, and praying that such case be heard and determined or tried on the reproduction of such record or papers, or satisfactory proof of their contents. Upon such petition and an authenticated copy of what is lost or destroyed, the court may hear and determine the case, or proceed to a trial thereof, if before a jury. The court may also hear and determine the case, or proceed to the trial thereof, if before a jury, upon proof, after reasonable notice to the parties interested, of the contents of such record or papers, or so much thereof, as may be necessary for a decision by the court, or by a jury, and may make such order or decree as if the papers or any of them had not been lost or destroyed.

    The court may in its discretion, require new pleadings to be made up in whole or in part.

    A plaintiff instead of proceeding under this section may commence and prosecute a new suit for the same matter; and no certified copy of any deed, will, account, or other original paper required by law to be recorded shall be used by any party as evidence for him, in any case when the original deed, will, account, or other original paper or record thereof has been destroyed, until such copy has been properly admitted to record, according to law. This section shall not apply to criminal cases.

    History. Code 1950, § 8-209; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-210.2 (Physical or mental examination of party) has been deleted since the subject matter is provided for in Rule 4:10.

    Cross references.

    As to evidence in establishing lost instruments, see §§ 8.01-392 through 8.01-395 .

    As to method of admitting copy to record where original is lost, see § 55.1-607 .

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Lost Instruments and Records, § 12.

    CASE NOTES

    Editor’s note.

    Sufficient compliance when bill and answer admit destruction. —

    It is a sufficient compliance with this section where a sworn bill alleges and an answer admits the destruction of the original papers in a cause where there was a decree for sale of certain lands, and there is filed a certified copy of the papers from the Supreme Court, where the cause was on appeal. An injunction will not lie to such sale on the ground that “no affidavit of the destruction was filed.” Hudson v. Yost, 88 Va. 347 , 13 S.E. 436 , 1891 Va. LEXIS 40 (1891).

    Reinstatement of cause. —

    Where the records in a cause which was on the docket of the circuit court at its last session before the Civil War were destroyed, it not appearing that the cause had been legally removed, it was no error to reinstate it on proper motion. Dismal Swamp Land Co. v. McCauley, 85 Va. 16 , 6 S.E. 697 , 1888 Va. LEXIS 3 (1888).

    § 8.01-374.1. Consolidation or bifurcation of issues or claims in certain cases; appeal.

    1. In any circuit court in which there are pending more than forty civil actions against manufacturers or suppliers of asbestos or products for industrial use that contain asbestos in which recovery is sought for personal injury or wrongful death alleged to have been caused by exposure to asbestos or products for industrial use that contain asbestos, the court may order a joint hearing or trial by jury of any or all common questions of law or fact which are at issue in those actions. The court may order any or all the actions consolidated, unless the court finds consolidation would adversely affect the rights of the parties to a fair trial. The court may submit special interrogatories to the jury to resolve specific issues of fact, and may make such orders concerning proceedings therein consistent with the right of each of the parties to a fair trial as may be appropriate to avoid unnecessary costs, duplicative litigation or delay.
    2. To further convenience or avoid prejudice in such consolidated hearings, when separate or bifurcated trials will be conducive to judicial economy, the court may order a separate or bifurcated trial of any claim, or any number of claims, cross-claims, counterclaims, third-party claims, or separate issues, always preserving the right of trial by jury. However, in any such bifurcated proceeding, the entitlement of an individual plaintiff to an award of punitive damages against any defendant shall not be determined unless compensatory damages have been awarded to that individual.
    3. Any order entered pursuant to this section shall, for purposes of appeal, be an interlocutory order.  Any findings of the court or jury in any bifurcated trial shall not be appealable until a final order adjudicating all issues on a specific claim or consolidated group of claims has been entered.
    4. This section shall not apply to actions arising under Article 6 (§ 8.01-57 et seq.) of Chapter 3 of this title or the Federal Employers Liability Act (45 U.S.C. § 51 et seq.). In addition, this section shall not apply to any party defendant unless that defendant was a manufacturer of, or a supplier of, asbestos or products for industrial use that contain asbestos, at any of the times alleged in the motion for judgment.

    History. 1992, c. 615.

    Editor’s note.

    Acts 1992, c. 615, cl. 2, which provided for the expiration of this section on June 30, 1995, was repealed by Acts 1995, c. 14, cl. 1, effective June 30, 1995, and by Acts 1995, c. 138, cl. 1, effective March 9, 1995.

    Law Review.

    For essay “Bifurcation of Civil Trials,” see 45 U. Rich. L. Rev. 1 (2010).

    § 8.01-375. Exclusion of witnesses in civil cases (Subsection (a) of Supreme Court Rule 2:615 derived in part from this section and subsection (b) of Supreme Court Rule 2:615 derived from this section).

    The court trying any civil case may upon its own motion, and shall upon the motion of any party, require the exclusion of every witness. However, the following shall be exempt from the rule of this section as a matter of right: (i) each named party who is an individual, (ii) one officer or agent of each party that is a corporation or association, (iii) an attorney alleged in a habeas corpus proceeding to have acted ineffectively, and (iv) in an unlawful detainer action filed in general district court, a managing agent as defined in § 55.1-1200 .

    Where expert witnesses are to testify in the case, the court may, at the request of all parties, allow one expert witness for each party to remain in the courtroom; however, in cases pertaining to the distribution of marital property pursuant to § 20-107.3 or the determination of child or spousal support pursuant to § 20-108.1 , the court may, upon motion of any party, allow one expert witness for each party to remain in the courtroom throughout the hearing.

    History. Code 1950, § 8-211.1; 1966, c. 268; 1975, c. 652; 1977, c. 617; 1986, c. 36; 1987, c. 70; 2001, c. 348; 2006, c. 757; 2016, c. 281.

    REVISERS’ NOTE

    Section 8.01-375 alters former § 8-211.1 by removing criminal cases from its application.

    NOTE: The provisions of former §§ 8-211, 8-212, 8-213, and 8-214 have been amended and incorporated into § 8.01-336 . The provisions of former § 8-215 have been incorporated in § 8.01-358 .

    Cross references.

    As to exclusion of persons from trial of criminal case, see § 19.2-266 .

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “55.1-1200” for “55-248.4.”

    The 2001 amendments.

    The 2001 amendment by c. 348 inserted “provided that in cases pertaining to the distribution of marital property pursuant to § 20-107.3 , the court may allow one expert witness for each party to remain in the courtroom throughout the hearing” at the end of the second paragraph.

    The 2006 amendments.

    The 2006 amendment by c. 757, in the second paragraph, substituted “however” for “provided that” and inserted “or the determination of child or spousal support pursuant to § 20-108.1 ” and “upon motion of any party.”

    The 2016 amendments.

    The 2016 amendment by c. 281 inserted “the following shall be exempt from the rule of this section as a matter of right:” and inserted the clause (i) through (iii) designations, deleted “shall be exempt from the rule of this section as a matter of right” at the end of clause (iii) and added clause (iv).

    Law Review.

    For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

    For survey of Virginia law on practice and pleading for the year 1974-1975, see 61 Va. L. Rev. 1799 (1975).

    As to expert witnesses in the courtroom, see 22 U. Rich. L. Rev. 621 (1988).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    Michie’s Jurisprudence.

    For related discussion, see 20 M.J. Witnesses, § 35.

    CASE NOTES

    The purpose of this section is to discourage and expose fabrication and collusion by witnesses and to minimize the likelihood that witnesses will alter their testimony so that such testimony is consistent with testimony provided by other witnesses. Motley v. Tarmac Am., Inc., 258 Va. 98 , 516 S.E.2d 7, 1999 Va. LEXIS 86 (1999).

    Testimony of witness violating order directing his exclusion. —

    There is nothing in the language of this section to support the argument of counsel for the defendant that the presence of a witness in the courtroom, in disobedience of the order of exclusion, disqualifies such witness from testifying. On the contrary, it is generally held that it is within the sound discretion of the trial court to permit the testimony of a witness who has violated an order directing his exclusion from the courtroom. Brickhouse v. Commonwealth, 208 Va. 533 , 159 S.E.2d 611, 1968 Va. LEXIS 145 (1968) (decided under former § 8-211.1).

    Review of transcripts of another witness. —

    Doctor’s review of transcripts of another witness did not automatically disqualify the doctor as a witness, because all the questions posed to the doctor regarding the other witness’s testimony could have been asked in the form of a hypothetical question. Hey v. Arlington County Dep't of Human Servs., 2008 Va. App. LEXIS 572 (Va. Ct. App. Dec. 30, 2008).

    Section gave an accused an absolute right to have all witnesses excluded from the courtroom during his trial. Martin v. Commonwealth, 217 Va. 847 , 234 S.E.2d 62, 1977 Va. LEXIS 246 (1977) (decided under former § 8-211.1).

    While a defendant’s right to exclusion under former § 8-211.1 before its amendment in 1975 was qualified, i.e., it extended only to those witnesses whose presence at trial was not necessary, the amendment, which deleted the words “whose presence is not necessary to the proceedings” following “witness,” removed that qualification and made a defendant’s right absolute. In its amended form, former § 8-211.1 permitted no rational construction but that “upon the motion of any party” a trial court “shall” exclude “every witness” during the trial of “every case, civil or criminal.” Johnson v. Commonwealth, 217 Va. 682 , 232 S.E.2d 741, 1977 Va. LEXIS 222 (1977) (decided under prior law).

    Exception for agent of corporation. —

    Former employee, whose negligent acts and omissions were at issue in litigation, was not an agent of the defendant within the intent of this section because he was neither employed by the defendant at the time of trial, nor did he have any other relationship with the defendant at that time. Thus, former employee should not have been allowed to remain in the courtroom to observe the testimony of other witnesses. Motley v. Tarmac Am., Inc., 258 Va. 98 , 516 S.E.2d 7, 1999 Va. LEXIS 86 (1999).

    No error in excluding witness. —

    To the extent the circuit court erred in permitting a sibling to remain in the courtroom, such error was not a sufficient reason to reverse the judgment because given the timing and nature of the sibling’s testimony, and the testimony of other witnesses before and after his testimony, his presence in the courtroom did not prevent a brother from receiving a fair trial on the merits; the focus of the sibling’s testimony was a batch of e-mails, which were admitted into evidence. Galiotos v. Galiotos, 300 Va. 1 , 858 S.E.2d 653, 2021 Va. LEXIS 58 (2021).

    § 8.01-376. Views by juries.

    The jury may, in any civil case, at the request of either party, be taken to view the premises or place in question, or any property, matter or thing relating to the controversy between the parties, when it shall appear to the court that such view is necessary to a just decision; provided that the expenses of the jury and the officers who attend them in taking the view shall be afterwards taxed like other legal costs.

    History. Code 1950, § 8-216; 1977, c. 617; 1978, c. 367.

    REVISERS’ NOTE

    The references in former § 8-216 to criminal cases have been deleted and transferred to § 19.2-264.1 .

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 62.

    CASE NOTES

    Editor’s note.

    History of section. —

    This provision in the statute of law of the State first appeared in the Code of 1849 (chapter 162, page 629, § 10), and with the exception of the words “civil or criminal,” added by the act of December 10, 1903 (Acts 1902-3-4, page 605) [and changed to “civil” in Acts 1977, c. 617], has remained unchanged. Noell v. Commonwealth, 135 Va. 600 , 115 S.E. 679 , 1923 Va. LEXIS 48 (1923), overruled, Jones v. Commonwealth, 227 Va. 425 , 317 S.E.2d 482, 1984 Va. LEXIS 210 (1984) (see also Litton v. Commonwealth, 101 Va. 833 , 44 S.E. 923 , 1903 Va. LEXIS 95 (1903)).

    Scope of section. —

    In regard to a view of the premises by the jury, this section undertakes to occupy the whole field upon this subject. Noell v. Commonwealth, 135 Va. 600 , 115 S.E. 679 , 1923 Va. LEXIS 48 (1923), overruled, Jones v. Commonwealth, 227 Va. 425 , 317 S.E.2d 482, 1984 Va. LEXIS 210 (1984).

    Object of view. —

    The view of the grounds at the scene of an accident which is the basis of an action may better enable the jury to apply the testimony disclosed upon the trial, but does not authorize them to base their verdict on such view, nor to become silent witnesses to facts which were not testified to in court. City of Norfolk v. Anthony, 117 Va. 777 , 86 S.E. 68 , 1915 Va. LEXIS 94 (1915); Lorillard Co. v. Clay, 127 Va. 734 , 104 S.E. 384 , 1920 Va. LEXIS 82 (1920).

    A view is not intended to supply evidence. —

    It has been definitely and repeatedly said by the Supreme Court that a view is not intended to supply evidence, but only to explain and clarify it. Noell v. Commonwealth, 135 Va. 600 , 115 S.E. 679 , 1923 Va. LEXIS 48 (1923), overruled, Jones v. Commonwealth, 227 Va. 425 , 317 S.E.2d 482, 1984 Va. LEXIS 210 (1984).

    But is a source of proof. —

    A view by a jury is to be considered as constituting a source of proof for or against the accused. Even in those cases in which it has been held as a general proposition that the presence of the prisoner at a view is not essential, it is never questioned that if evidence is taken during the view in the prisoner’s absence, he cannot be convicted. Noell v. Commonwealth, 135 Va. 600 , 115 S.E. 679 , 1923 Va. LEXIS 48 (1923), overruled, Jones v. Commonwealth, 227 Va. 425 , 317 S.E.2d 482, 1984 Va. LEXIS 210 (1984).

    Necessity of motion for view by parties. —

    Under this section, a view ought not to be ordered in any case except upon the motion of one or both parties, or by consent of both parties, which would be tantamount to a joint motion. Although it might be error to order a view over the protest of both parties, where neither party objects, their acquiescence is equivalent to consent. Noell v. Commonwealth, 135 Va. 600 , 115 S.E. 679 , 1923 Va. LEXIS 48 (1923), overruled, Jones v. Commonwealth, 227 Va. 425 , 317 S.E.2d 482, 1984 Va. LEXIS 210 (1984).

    Right to view rests in discretion of court. —

    The right to a view is not an absolute right of a litigant, but rests in the sound discretion of the trial court, subject to review under proper circumstances. B & O R.R. v. Polly, 55 Va. (14 Gratt.) 447, 1858 Va. LEXIS 38 (1858); Litton v. Commonwealth, 101 Va. 833 , 44 S.E. 923 , 1903 Va. LEXIS 95 (1903); In re Cutchin, 113 Va. 452 , 74 S.E. 403 , 1912 Va. LEXIS 58 (1912); Lorillard Co. v. Clay, 127 Va. 734 , 104 S.E. 384 , 1920 Va. LEXIS 82 (1920); Noell v. Commonwealth, 135 Va. 600 , 115 S.E. 679 , 1923 Va. LEXIS 48 (1923), overruled, Jones v. Commonwealth, 227 Va. 425 , 317 S.E.2d 482, 1984 Va. LEXIS 210 (1984).

    The propriety of ordering a view lies largely in the discretion of the trial court, which should only grant it when it is reasonably certain that it will be of substantial aid to the jury in reaching a correct verdict, and its decision refusing a view will not be reversed unless the record shows that it did appear to the trial court that such view was necessary to a just decision, and that the statutory provision for expenses in a civil case was complied with. C & O Ry. v. Nickel, 157 Va. 382 , 161 S.E. 248 , 1931 Va. LEXIS 328 (1931); Early v. City of Norfolk, 183 Va. 659 , 33 S.E.2d 177, 1945 Va. LEXIS 210 (1945).

    When view proper. —

    A court should only grant a view when it is reasonably certain that it will be of substantial aid to the jury in reaching a correct verdict. In re Cutchin, 113 Va. 452 , 74 S.E. 403 , 1912 Va. LEXIS 58 (1912); Abernathy v. Emporia Mfg. Co., 122 Va. 406 , 95 S.E. 418 , 1918 Va. LEXIS 106 (1918); Scott v. Doughty, 124 Va. 358 , 97 S.E. 802 , 1919 Va. LEXIS 130 (1919); Lorillard Co. v. Clay, 127 Va. 734 , 104 S.E. 384 , 1920 Va. LEXIS 82 (1920).

    When properly refused. —

    A view of the premises was rightly refused where the accident happened some 18 months prior, when conditions may have been different, especially in view of the absence of any evidence that conditions were the same when the view was asked as when the accident happened. Lorillard Co. v. Clay, 127 Va. 734 , 104 S.E. 384 , 1920 Va. LEXIS 82 (1920); Noell v. Commonwealth, 135 Va. 600 , 115 S.E. 679 , 1923 Va. LEXIS 48 (1923), overruled, Jones v. Commonwealth, 227 Va. 425 , 317 S.E.2d 482, 1984 Va. LEXIS 210 (1984).

    Effect of view unauthorized by the court. —

    Generally a new trial will not be granted where an unauthorized view is casual, incidental, and not reasonably calculated to influence a jury in arriving at a verdict. Crockett v. Commonwealth, 187 Va. 687 , 47 S.E.2d 377, 1948 Va. LEXIS 259 (1948).

    Where the gist of the action is the character or condition of the locus in quo, or where a better view of it will enable the jurors better to determine the credibility of witnesses and other disputed facts, or where the mere fact of an inspection, in view of the nature of the suit, is calculated to influence the jury to the prejudice of the unsuccessful party, it will be presumed that the knowledge obtained by an unauthorized view was in fact prejudicial, and in the absence of evidence to the contrary, a new trial will be granted. Crockett v. Commonwealth, 187 Va. 687 , 47 S.E.2d 377, 1948 Va. LEXIS 259 (1948).

    Discretion held not abused. —

    There was no abuse of discretion by the trial court in permitting a view by the jury of the place on defendant’s premises where plaintiff slipped on an allegedly worn stair tread. Evidence was first taken to establish that the condition of the stair was substantially the same as at the time of plaintiff’s fall. Culpepper v. Neff, 204 Va. 800 , 134 S.E.2d 315, 1964 Va. LEXIS 122 (1964).

    § 8.01-377. Remedy when variance appears between evidence and allegations.

    If, at the trial of any action, there appears to be a variance between the evidence and the allegations or recitals, the court, if it consider that substantial justice will be promoted and that the opposite party cannot be prejudiced thereby, may allow the pleadings to be amended, on such terms as to the payment of costs or postponement of the trial, or both, as it may deem reasonable. Or, instead of the pleadings being amended, the court may direct the jury to find the facts, and, after such finding, if it consider the variance such as could not have prejudiced the opposite party, shall give judgment according to the right of the case.

    History. Code 1950, § 8-217; 1977, c. 617.

    Law Review.

    For comment on application of section, see 45 Va. L. Rev. 1443 (1959).

    For survey of Virginia law on wills, trusts and estates for the year 1973-1974, see 60 Va. L. Rev. 1632 (1974).

    For annual survey article, “Civil Practice and Procedure,” see 46 U. Rich. L. Rev. 9 (2011).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Agreed Case, § 2.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Purpose is to prevent surprise. —

    The rule that the proofs must correspond with the allegation is fully recognized, but like every other rule should be reasonably applied. Its purpose is to prevent surprise. Where there is no surprise to the party invoking it, there is no good reason for enforcing the rule. Graves Constr., Inc. v. National Cellulose Corp., 226 Va. 164 , 306 S.E.2d 898, 1983 Va. LEXIS 282 (1983).

    Party entitled to adversary’s ground of complaint. —

    A court may not base a judgment or decree upon facts not alleged or upon a right, however meritorious, that has not been pleaded and claimed; every litigant is entitled to be told in plain and explicit language the adversary’s ground of complaint. Hensley v. Dreyer, 247 Va. 25 , 439 S.E.2d 372, 10 Va. Law Rep. 708, 1994 Va. LEXIS 19 (1994).

    In a case of variance, this section gives a trial court the discretion to apply principle that it may not base a judgment or decree upon facts not alleged or upon a right, however meritorious, that has not been pleaded or claimed, reasonably either by permitting amendment of the pleadings (and possibly postponing the trial) or, in lieu of amendment, by having the facts determined and rendering judgment, but only on the condition that no prejudice results; while the statute is remedial in purpose and should be liberally construed, it should not be interpreted in a manner inconsistent with its plain language. Hensley v. Dreyer, 247 Va. 25 , 439 S.E.2d 372, 10 Va. Law Rep. 708, 1994 Va. LEXIS 19 (1994).

    In an action for damages by an information technology company and its sole owner against a former partner, his wife, and their new corporation, the trial court erred by allowing a breach of fiduciary duty claim to proceed on an unpled claim that the former partner breached a fiduciary duty as a partner where there was a variance between the evidence and the allegation that the breach was as an employee, not a partner. Syed v. Zh Techs., Inc., 280 Va. 58 , 694 S.E.2d 625, 2010 Va. LEXIS 73 (2010).

    Amendment properly allowed. —

    Trial court did not abuse its discretion in allowing an employer to amend its answer, by way of a motion made pursuant to § 8.01-377 prior to the close of the employee’s case-in-chief, to include a repudiation defense as the employee’s own testimony, offered during his case-in-chief, established facts supporting the employer’s repudiation defense. Substantial justice was promoted by instructing the jury how to properly frame the issues based on the evidence presented at trial. Bennett v. Sage Payment Solutions, Inc., 282 Va. 49 , 710 S.E.2d 736, 2011 Va. LEXIS 135 (2011).

    Claim rejected. —

    Trial court properly rejected the company’s purported claim for the threshold reason that the company did not assert on appeal that the trial court erred in denying to it any request to amend its complaint or otherwise conform its pleadings to the evidence that the company offered in support of such claim. Wetlands Am. Trust, Inc. v. White Cloud Nine Ventures, L.P., 291 Va. 153 , 782 S.E.2d 131, 2016 Va. LEXIS 12 (2016).

    Grounds for divorce. —

    A trial court is authorized by Sup. Ct. Rule 1:8 and this section to permit a party to amend pleadings to allege a different or dual grounds of divorce from that initially pleaded. Megill v. Megill, 1997 Va. App. LEXIS 273 (Va. Ct. App. Apr. 29, 1997).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    For judicial history of this section, see Long Pole Lumber Co. v. Gross, 180 F. 5, 1910 U.S. App. LEXIS 4740 (4th Cir. 1910).

    Purpose is to prevent surprise. —

    The rule that the proofs must correspond with the allegation is fully recognized, but like every other rule should be reasonably applied. Its purpose is to prevent surprise. Where there is no surprise to the party invoking it, there is no good reason for enforcing the rule. Caputo v. Holt, 217 Va. 302 , 228 S.E.2d 134, 1976 Va. LEXIS 276 (1976).

    Section liberally construed. —

    This section and § 8.01-545 allow substantial amendments in the pleadings for the promotion of justice, and they have always been liberally construed by the Supreme Court as remedial in purpose. Langhorne v. Richmond City Ry., 91 Va. 364 , 22 S.E. 357 , 1895 Va. LEXIS 33 (1895); New River Mineral Co. v. Painter, 100 Va. 507 , 42 S.E. 300 , 1902 Va. LEXIS 52 (1902); C & O Ry. v. Swartz, 115 Va. 723 , 80 S.E. 568 , 1914 Va. LEXIS 125 (1914); Norfolk & W. Ry. v. Perdue, 117 Va. 111 , 83 S.E. 1058 , 1915 Va. LEXIS 14 (1915); Standard Paint Co. v. E.K. Vietor & Co., 120 Va. 595 , 91 S.E. 752 , 1917 Va. LEXIS 144 (1917); Russell Lumber Co. v. Thompson, 137 Va. 386 , 119 S.E. 117 , 1923 Va. LEXIS 163 (1923); Dillow v. Stafford, 181 Va. 483 , 25 S.E.2d 330, 1943 Va. LEXIS 198 (1943); Provident Life & Accident Ins. Co. v. Walker, 190 Va. 1016 , 59 S.E.2d 126, 1950 Va. LEXIS 190 (1950).

    Liberal construction is especially the case where the amendment will further the ends of justice and permit the controversy to be determined on its merits. McKee v. Bunting, McNeal Real Estate Co., 114 Va. 639 , 77 S.E. 515 , 1913 Va. LEXIS 125 (1913).

    Leave to amend pleadings should be liberally granted in furtherance of the ends of justice. Haymore v. Brizendine, 210 Va. 578 , 172 S.E.2d 774, 1970 Va. LEXIS 166 (1970).

    This section expressly authorizes a court to impose conditions to the granting of leave to amend pleadings. Haymore v. Brizendine, 210 Va. 578 , 172 S.E.2d 774, 1970 Va. LEXIS 166 (1970).

    Objection or motion to exclude proper. —

    In case of variance between the evidence and allegations, the usual and correct practice is to object to the evidence when offered or move to exclude it. Attention is thus called to the discrepancy and an opportunity afforded the trial court to meet the emergency, in a proper case, in one of the modes prescribed by this section. Portsmouth St. R.R. v. Peed's Adm'r, 102 Va. 662 , 47 S.E. 850 , 1904 Va. LEXIS 114 (1904); Holdsworth v. Anderson Drug Co., 118 Va. 359 , 87 S.E. 565 , 1916 Va. LEXIS 16 (1916).

    The proper method of objecting to a variance between the allegations and proof is by motion to exclude the evidence. Southern Ry. v. Finley & Seymour, 127 Va. 132 , 102 S.E. 559 , 1920 Va. LEXIS 39 (1920).

    Where there is a variance between a contract set out in a plea, and the contract offered in evidence in support of the plea, and no motion is made to amend the plea, as provided by this section then the contract offered in evidence should be excluded. Richmond Standard Steel, Spike & Iron Co. v. Chesapeake Coal Co., 102 Va. 417 , 46 S.E. 397 , 1904 Va. LEXIS 86 (1904).

    Objection may be waived. —

    No objection having been made to the admission of evidence, and no motion made to exclude it on account of a supposed variance, the objection must be considered as having been waived. Burruss v. Suddith, 187 Va. 473 , 47 S.E.2d 546, 1948 Va. LEXIS 237 (1948).

    Pursuant to this section, that no objection having been made to the admissibility of evidence, or no motion to exclude it on account of the supposed variance, the objection must be considered as having been waived. Newport News & O.P. Ry. & Elec. Co. v. McCormick, 106 Va. 517 , 56 S.E. 281 , 1907 Va. LEXIS 115 (1907).

    An objection to a variance between proof and pleadings is waived where no objection is made to the admission of evidence, and no motion is made to exclude it because of the supposed variance. If this rule of practice was not adhered to, it would deprive parties of their right to amend their pleadings to conform with the evidence, which is permitted in proper cases under this section. Culmore Realty Co. v. Caputi, 203 Va. 403 , 124 S.E.2d 7, 1962 Va. LEXIS 159 (1962).

    Effect of failure to invoke statute. —

    This statute authorizes amendments upon terms fair to both parties, whenever a variance between the pleadings and the proof develops during the trial. It has always been regarded with favor, and construed with liberality by the courts. Having failed to avail himself of the remedy thus provided, or to give the opposite party or the court the opportunity to invoke it, a party cannot take advantage of an irregularity which the statute would have cured. Chandler v. Kelley, 149 Va. 221 , 141 S.E. 389 , 1928 Va. LEXIS 361 (1928).

    The record in a consolidated action is competent evidence in a companion case for the plaintiffs. No objection was made to the record as evidence in the trial court. Furthermore, slight variances between the declaration and the record, which would not prevent the record in the present case from being a bar to another action for the same cause, are not sufficient to exclude it under this section. Forbes v. Hagman, 75 Va. 168 , 1881 Va. LEXIS 3 (1881).

    Objection cannot be made for the first time in appellate court. —

    It is elementary law that the proof must correspond to the allegations. But a party wishing to avail himself of this rule is required to make timely objection to the variance in the trial court. Du Pont Eng'r Co. v. Blair, 129 Va. 423 , 106 S.E. 328 , 1921 Va. LEXIS 106 (1921).

    This section was enacted to obviate the difficulties which frequently arise after a trial has been commenced, when it appears that there is a variance between the evidence and the allegations in the pleadings. Such objection cannot be made for the first time in the appellate court. Bertha Zinc Co. v. Martin's Adm'r, 93 Va. 791 , 22 S.E. 869 , 1895 Va. LEXIS 141 (1895); Virginia & S.W. Ry. v. Bailey, 103 Va. 205 , 49 S.E. 33 , 1904 Va. LEXIS 28 (1904).

    It was urged by the defendant, that as the action was based upon a wrongful discharge, the plaintiff should have declared specially upon the contract and its breach, whereas his allegation contained only the common counts in assumpsit. Conceding that the allegation was defective, it was the duty of the defendant, if it intended to rely upon that point, to then and there call the court’s attention to it. This section authorizing amendments, upon terms fair to both parties, whenever a variance between the pleadings and the proof develops during the trial, was expressly designed to meet just such a situation as would have been presented in the trial court if the question first raised on appeal had been raised there. This statute has always, and most properly, been regarded with favor and construed with liberality by the courts of this State; and its terms would have fully met the condition complained of by defendant. Having failed to avail itself of the remedy thus provided, or to give the plaintiff or the court the opportunity to invoke it, the defendant cannot upon appeal take advantage of the irregularity which the statute would have cured. Conrad v. Ellison-Harvey Co., 120 Va. 458 , 91 S.E. 763 , 1917 Va. LEXIS 131 (1917).

    Under this section the trial court is vested with discretion in cases of variance. —

    And even if the court errs in allowing a case to go to the jury without requiring the plaintiff to amend his notice of motion so as to conform more closely to the proof, this is an error of which defendant should not be allowed to take advantage, if the entire record showed that the judgment accomplished substantial justice according to the right of the case. The Supreme Court should correct substantial errors and should not reverse judgments for defects which do not injuriously affect the substantial rights of the parties. Kennedy v. Mullins, 155 Va. 166 , 154 S.E. 568 , 1930 Va. LEXIS 155 (1930).

    Variance cannot be based on immaterial allegations. —

    Allegations in pleadings which are immaterial to the real issues in the case cannot form the basis of a claim that there is a fatal variance between allegation and proof. Simmers v. DePoy, 212 Va. 447 , 184 S.E.2d 776, 1971 Va. LEXIS 371 (1971).

    Where the allegation was immaterial, the contradicting testimony merely created a conflict in the evidence and did not constitute a variance requiring the action contemplated by this section. Simmers v. DePoy, 212 Va. 447 , 184 S.E.2d 776, 1971 Va. LEXIS 371 (1971).

    B.Amendment of Immaterial Allegations.

    Date of accident in notice may be amended. —

    Where an amendment under this section is germane to a material fact in controversy, i.e., the date of the accident which caused the disability of the insured, and where the change in the notice of motion is allowed before the evidence of the plaintiff has been fully submitted and merely prevents a variance of fact between the evidence and an allegation or recital in the pleadings, it is not error to allow the amendment. Provident Life & Accident Ins. Co. v. Walker, 190 Va. 1016 , 59 S.E.2d 126, 1950 Va. LEXIS 190 (1950).

    Also quantum of damages in notice. —

    In an action for breach of contract, before plaintiffs had concluded their evidence it was shown that the damages exceeded the amount laid in the notice of motion and they then moved the court to allow them to amend the notice in respect to the quantum of damages, which motion was granted over defendants’ objection. It was held that in the absence of a motion for a continuance the court was clearly right in allowing the amendment, authority for which is furnished by this section. Wood v. Quillin, 167 Va. 255 , 188 S.E. 216 , 1936 Va. LEXIS 300 (1936).

    Instances of immaterial amendments. —

    In an action on a contract against a corporation, plaintiff’s declaration purported to set out the contract verbatim, and recited that it was signed by its president and attested by its secretary and corporate seal. In copying the contract into the declaration there was nothing to represent the seal. When the contract was produced in evidence, it was apparent that the corporate seal had been attached as recited in the contract, thereupon leave was granted plaintiff to amend the declaration to conform to the facts. Such amendment was authorized by this section and by Rev. St. § 954 [U.S. Comp. St. 1901, p. 696.].Mathieson Alkali Works v. Mathieson, 150 F. 241, 1906 U.S. App. LEXIS 4538 (4th Cir. 1906), cert. denied, 204 U.S. 674, 27 S. Ct. 787, 51 L. Ed. 674, 1907 U.S. LEXIS 1493 (1907).

    The plaintiff sought to recover for injuries while operating a locomotive because of the collapse of a bridge, and alleged that the defendant was negligent in the construction of the bridge. But the evidence showed that the defendant’s failure to inspect the bridge after a rain was the cause of the accident. The court held that under this section at the conclusion of the evidence it could properly permit the plaintiff to amend his declaration so as to allege that the stringer of the bridge which broke was insufficient unless properly supported, and that by reason of defendant’s failure to make reasonable inspections it was not properly supported at the time of the accident, and caused the injury, there being no demand by the defendant for the imposition of terms or for a continuance by reason of such amendment. Long Pole Lumber Co. v. Gross, 180 F. 5, 1910 U.S. App. LEXIS 4740 (4th Cir. 1910).

    In an action for damages for fraud and breach of warranty in the sale of defective roofing, the dates of the several sales were each alleged in the declaration under a videlicet. The defendant knew the precise dates of each sale, and after one of its witnesses had supplied those dates the court permitted each count in the declaration to be amended by the insertion of the precise dates. Such amendments were not material, and if they were, were fully authorized by this section. Standard Paint Co. v. E.K. Vietor & Co., 120 Va. 595 , 91 S.E. 752 , 1917 Va. LEXIS 144 (1917).

    Where a motion charges that the slanderous words were uttered in the presence of three named persons, and proof is that one of the three was not present, motion may be amended at the trial, as the variance is immaterial. Harman v. Cundiff, 82 Va. 239 , 1886 Va. LEXIS 26 (1886).

    If one corporation is sued for a personal injury, and the evidence of the defendants tends to show that the injury was committed by another corporation, the plaintiff, upon request, under this section, should be allowed to amend his motion so as to charge that the two corporations were one and the same corporation, known by both names. Langhorne v. Richmond Ry., 91 Va. 369 , 22 S.E. 159 , 1895 Va. LEXIS 34 (1895).

    A notice is addressed by B. to R., late sheriff, and his surviving sureties by name, survivors of themselves and James Sims. On the trial B. introduces the bond which is signed by R. and all the surviving sureties; but it is objected to as evidence because the name described in the address of the notice as James Sims is written Jos. Sin. This is not a material variance, and is curable under this statute. Beasley v. Robinson, 65 Va. (24 Gratt.) 325 (1874).

    The effect of an amendment under this section is to admit new evidence which would not have been admissible before the amendment. Norfolk & W. Ry. v. Perdue, 117 Va. 111 , 83 S.E. 1058 , 1915 Va. LEXIS 14 (1915).

    Continuance after amendment. —

    Where there is a variance between the allegations of the pleadings and the evidence, it is in conformity with this section to allow the pleadings to be amended and if, need be, continue the case, and the practice is to be commenced as promotive of substantial justice. C & O Ry. v. Swartz, 115 Va. 723 , 80 S.E. 568 , 1914 Va. LEXIS 125 (1914).

    Proceeding with trial after amendment. —

    In an action on a policy, the motion omitted one of the conditions indorsed upon it. On the trial when the policy was offered in evidence, it was objected to for the variance. The court properly allowed the plaintiff to amend the motion by inserting the omitted condition, and proceeded with the trial. New York Life Ins. Co. v. Hendren, 65 Va. (24 Gratt.) 536, 1874 Va. LEXIS 32 (1874), writ of error dismissed, 92 U.S. 286, 23 L. Ed. 709, 1875 U.S. LEXIS 1756 (1876).

    At trial, in case of variance between allegations and evidence, the court may allow the former to be amended by striking out immaterial words without remanding the case to rules. Alexandria & F.R.R. v. Herndon, 87 Va. 193 , 12 S.E. 289 , 1890 Va. LEXIS 109 (1890).

    CIRCUIT COURT OPINIONS

    Application. —

    Statute was appropriately utilized because the evidence heard by the Commissioner of Chancery made it apparent that both parties were aware of an alleged second oral contract and that neither surprise nor prejudice was a factor in the taking of evidence. Kelsoe v. Kelsoe, 88 Va. Cir. 423, 2003 Va. Cir. LEXIS 387 (Essex County July 16, 2003).

    Corporate registration. —

    Where no ruling on the merits of a lease dispute had been made and no final order had been entered, the parties were still “at trial”; therefore, a company could conform the pleadings to the evidence regarding its corporate registration and state of existence under § 15-218.1.. 6601 Little River Tpk. LLC v. Caballero Architects, AIA, PC, 61 Va. Cir. 53, 2003 Va. Cir. LEXIS 60 (Fairfax County Feb. 11, 2003).

    Claim did not arise out of conduct, transaction or occurance alleged in complaint. —

    Wife’s motion for summary judgment was granted because a husband’s breach of contract claim was barred by the statutes of limitations, and his delay in filing the claim did not constitute reasonable diligence in asserting an amended claim; the husband’s alleged breach of contract claim based upon the consideration of marriage did not arise out of the conduct, transaction, or occurrence alleged in the first count of the wife’s complaint, which was identical to the husband’s original cross-bill. Kelsoe v. Kelsoe, 88 Va. Cir. 423, 2003 Va. Cir. LEXIS 387 (Essex County July 16, 2003).

    Illustrative cases. —

    In a municipal employee grievance matter, the grievants were to be permitted to amend their grievances to conform their grievances to the evidence. Drewery v. City of Roanoke, 63 Va. Cir. 609, 2001 Va. Cir. LEXIS 512 (Roanoke Sept. 7, 2001).

    Judgment creditor’s claim against a corporation was dismissed because although acting in good faith, the judgment creditor either served only the wrong entity or failed by timely amendment to bring the proper entity before the circuit court for adjudication of its claim; it would be error to permit amendment at the late stage of trial without affording the corporation at least a continuance and the right to prepare further to meet the amendment, including with the reopening of discovery. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017), vacated, rev'd, 300 Va. 25 , 859 S.E.2d 651, 2021 Va. LEXIS 71 (2021).

    § 8.01-377.1. Summary judgment.

    In any action at law or equity at the close of all the evidence, any party may move for a summary judgment upon the entire case or upon any severable issue including the issue of liability alone although there is a genuine issue as to damages.

    History. 1990, c. 628.

    Cross references.

    As to summary judgment in civil actions, see Rule 3:20.

    CASE NOTES

    Summary judgment. —

    Where it was clear that no extension under a lease could occur unless a 75 percent mining requirement was met, and it was unmet, the court erroneously validated the extension where no lease supplement or amendment affected the 75 percent requirement, and summary judgment was improper. Std. Banner Coal Corp. v. Rapoca Energy Co., 265 Va. 320 , 576 S.E.2d 435, 2003 Va. LEXIS 21 (2003).

    § 8.01-378. Trial judge not to direct verdicts.

    In no action tried before a jury shall the trial judge give to the jury a peremptory instruction directing what verdict the jury shall render. If the trial judge has granted a motion to strike the evidence of the plaintiff or the defendant, the judge shall enter summary judgment or partial summary judgment in conformity with his ruling on the motion to strike.

    History. Code 1950, § 8-218; 1958, c. 208; 1977, c. 617; 1985, c. 214; 1986, c. 253.

    Cross references.

    As to summary judgment in civil actions, see Rule 3:20.

    Law Review.

    For comment on interpretation of section, see 46 Va. L. Rev. 1652 (1960).

    Michie’s Jurisprudence.

    For related discussion, see 5B M.J. Criminal Procedure, § 62.

    CASE NOTES

    Editor’s note.

    Some of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, may refer to former provisions.

    Directed verdicts prohibited. —

    Directed verdicts were expressly prohibited by statute in Virginia prior to 1958, and are prohibited now. During the interval 1958-1986, directed verdicts were permitted only where the court had sustained a motion to strike the evidence. Kesler v. Allen, 233 Va. 130 , 353 S.E.2d 777, 3 Va. Law Rep. 1988, 1987 Va. LEXIS 148 (1987).

    Validity of statute. —

    The court declined to pass on the constitutionality of this section in Linkous v. Harris, 134 Va. 63 , 113 S.E. 831 (1922).

    This section is not in conflict with § 8.01-430 , declaring that if a verdict be set aside as contrary to the evidence, etc., the trial court shall render judgment, for this section is intended to prevent errors by the court in the heat of trial, while § 8.01-430 allows the court to act after deliberation. W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245 , 108 S.E. 15 , 1921 Va. LEXIS 152 (1921).

    Nor does it affect § 8.01-380 as to nonsuits. —

    After a motion by defendant for a directed verdict, a plaintiff has no absolute right then to suffer a nonsuit. Section 8.01-380 , against taking a nonsuit after the jury retires, does not govern in view of the accepted Virginia practice under this section not to direct verdicts. Pannill v. Roanoke Times Co., 252 F. 910, 1918 U.S. Dist. LEXIS 973 (D. Va. 1918).

    Nor is the scintilla doctrine reinstated. —

    This section applies only to peremptory instructions which direct what verdict the jury shall render. The statute is not to be construed as applying to cases in which the verdict of the jury depends necessarily and exclusively upon a question of law, nor is it to be construed as reinstating the scintilla doctrine formerly prevailing in this State but now rejected. Barksdale v. Southern Ry., 152 Va. 604 , 148 S.E. 683 , 1929 Va. LEXIS 195 (1929).

    Purpose is to prohibit application of doctrine of harmless error. —

    This section was passed for the express purpose of prohibiting the application of the doctrine of harmless error to the mandatory direction of verdicts. Small v. Virginia Ry. & Power Co., 125 Va. 416 , 99 S.E. 525 , 1919 Va. LEXIS 33 (1919).

    Under this section even in a case where no other verdict could have been properly rendered, and the error might therefore have been regarded as harmless, yet a peremptory instruction directing the verdict must be regarded as prejudicial and reversible error. Small v. Virginia Ry. & Power Co., 125 Va. 416 , 99 S.E. 525 , 1919 Va. LEXIS 33 (1919).

    Distinction between directed verdicts and demurrers to evidence. —

    Obviously the laws of Virginia recognize a marked distinction between demurrer to evidence and direction of a verdict — the former is permitted; the latter is expressly prohibited. Barrett v. Virginian Ry., 250 U.S. 473, 39 S. Ct. 540, 63 L. Ed. 1092, 1919 U.S. LEXIS 1766 (1919).

    Methods of accomplishing same results as by directed verdict. —

    This section forbids the trial court to direct a verdict, but under Virginia practice it is still possible by less summary methods to accomplish the same results. A demurrer to evidence may be interposed; evidence may be stricken out; the trial court may set aside the verdict, and in a proper case give final judgment; the trial court may decline to give any instruction where the evidence would not sustain a verdict, and it may in substance direct a verdict by stating in an instruction a hypothetical case and telling the jury if they so believe, to find, etc. Davis v. Rodgers, 139 Va. 618 , 124 S.E. 408 , 1924 Va. LEXIS 137 (1924).

    Section does not apply to criminal cases. —

    In a prosecution for car breaking, the defendant asked for an instruction that, “There is no evidence in this case to support the charge of car breaking.” It was held that while this section, which expressly forbids such an instruction in a civil case, does not apply to criminal cases, the practice of giving such instructions as that in question cannot be approved by the courts, although not forbidden by statute. Myers v. Commonwealth, 132 Va. 746 , 111 S.E. 463 , 1922 Va. LEXIS 74 (1922).

    Even in a criminal case it has been held that “it is not the practice of the courts of this State to give instructions which amount in substance to telling the jury that the evidence is not sufficient to convict a prisoner, and such instructions should not be given.” Montgomery v. Commonwealth, 98 Va. 852 , 37 S.E. 1 , 1900 Va. LEXIS 114 (1900); Mazer v. Commonwealth, 142 Va. 649 , 128 S.E. 514 , 1925 Va. LEXIS 369 (1925), limited, Parsons v. Commonwealth, 154 Va. 832 , 152 S.E. 547 , 1930 Va. LEXIS 249 (1930) (see Small v. Virginia Ry. & Power Co., 125 Va. 416 , 99 S.E. 525 (1919)).

    Spirit of section to be observed. —

    An instruction is objectionable which violates the spirit, if not the letter, of this statute against directing verdicts. Norfolk & W. Ry. v. Simmons, 127 Va. 419 , 103 S.E. 609 , 1920 Va. LEXIS 61 (1920) (see also Norfolk & W. Ry. v. Hardy, 152 Va. 783 , 148 S.E. 839 (1929)).

    Statement tantamount to direction of verdict. —

    A statement by the court, “Yes, as I have already told you, you cannot recover a verdict against the defendant,” taking place as it did in the presence of the jury, was tantamount to a direction by the court of a verdict for the defendant. Small v. Virginia Ry. & Power Co., 125 Va. 416 , 99 S.E. 525 , 1919 Va. LEXIS 33 (1919).

    Directing verdict on probate of will within prohibition. —

    A soldier wrote his aunt that his war risk insurance was made payable to his mother, but that his mother in case of his death was to give his aunt half of it. This letter was admitted to probate as the soldier’s will. On appeal by the mother from the order of probate, the circuit court instructed the jury to find against the proposed will, because the letter designated no beneficiary under the war risk insurance act and under that act the aunt could not be named as beneficiary. It was held that this was error as the jury were not concerned with what, if anything, passed by the will, and the instruction was directly within the prohibition of this section. Reeves v. White, 136 Va. 443 , 118 S.E. 103 , 1923 Va. LEXIS 96 (1923).

    To what instructions applied. —

    This section is not to be construed as applying to cases in which the verdict of the jury depends necessarily and exclusively upon a question of law, such as the legal effect of a deed or contract. An instruction, therefore, which merely contained the construction of a written contract by the trial judge is not per se in violation of this section, although directing a verdict for one of the parties. Small v. Virginia Ry. & Power Co., 125 Va. 416 , 99 S.E. 525 , 1919 Va. LEXIS 33 (1919); Realty Co. v. Burcum, 129 Va. 466 , 106 S.E. 375 , 1921 Va. LEXIS 110 (1921); Harrison v. Gardner Inv. Corp., 132 Va. 238 , 111 S.E. 234 , 1922 Va. LEXIS 21 (1922); Inter-Ocean Cas. Co. v. Smith, 167 Va. 246 , 188 S.E. 210 , 1936 Va. LEXIS 299 (1936).

    Striking out evidence does not violate section. —

    Where the court simply strikes out the evidence offered by a party because no verdict could be properly rendered thereon sustaining the contention of the party it does not direct the verdict in violation of this section. Barksdale v. Southern Ry., 152 Va. 604 , 148 S.E. 683 , 1929 Va. LEXIS 195 (1929).

    Directed verdict improper where no motion to strike had been granted. —

    An instruction directing the jury what verdict to return was contrary to the prohibition contained in this section where no motion to strike had first been granted. Turner v. Burford Buick Corp., 201 Va. 693 , 112 S.E.2d 911, 1960 Va. LEXIS 149 (1960).

    § 8.01-379. Argument before jury.

    Counsel’s right to argument before a jury is preserved.

    History. 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-379 has altered former § 8-219 to express the right to argument by counsel and to delete the former restriction upon the number of counsel permitted to argue without leave.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Argument and Conduct of Counsel, § 3.

    § 8.01-379.1. Informing jury of amounts sued for.

    Notwithstanding any other provision of law, any party in any civil action may inform the jury of the amount of damages sought by the plaintiff in the opening statement or closing argument, or both. The plaintiff may request an amount which is less than the ad damnum in the motion for judgment.

    History. 1988, c. 321; 1993, c. 615.

    Law Review.

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Damages, § 81.1.

    CASE NOTES

    Itemization on non-economic damages proper in closing argument. —

    In a personal injury suit, allowing a motorist, in closing argument, to argue itemized amounts of non-economic damages to a jury did not violate § 8.01-379.1 because: (1) the statute did not state, when addressing the jury about the total amount sought, a plaintiff could only do so in terms of one lump sum; and (2) a court could not add such language to the statute. Wakole v. Barber, 283 Va. 488 , 722 S.E.2d 238, 2012 Va. LEXIS 37 (2012).

    Counsel cannot request damages in excess of amount alleged in ad damnum clause. —

    Circuit court erred in allowing the malpractice plaintiff’s counsel to request $10 million in damages from the jury in both his opening statement and closing argument because, as pled in his legal malpractice complaint, the malpractice plaintiff’s ad damnum clause alleged $6 million in damages. Smith v. McLaughlin, 289 Va. 241 , 769 S.E.2d 7, 2015 Va. LEXIS 23 (2015).

    § 8.01-379.2. Jury instructions.

    A proposed jury instruction submitted by a party, which constitutes an accurate statement of the law applicable to the case, shall not be withheld from the jury solely for its nonconformance with the model jury instructions.

    History. 1992, c. 522.

    Editor’s note.

    Acts 1992, c. 522, which enacted this section, in cl. 2 provides that the provisions of the 1992 act are declaratory of existing law.

    Law Review.

    For an article, “The Transformation of the American Civil Trial: The Silent Judge,” see 42 Wm. & Mary L. Rev. 195 (2000).

    CASE NOTES

    Proffered instructions. —

    Where a driver’s proffered jury instructions were confusing, not a correct statement of the law, and/or not supported by the evidence, the instructions were properly refused; as a result, the driver’s motions to set aside the verdict or for a new trial were also properly denied. Honsinger v. Egan, 266 Va. 269 , 585 S.E.2d 597, 2003 Va. LEXIS 91 (2003).

    § 8.01-379.2:1. Spoliation of evidence.

    1. A party or potential litigant has a duty to preserve evidence that may be relevant to reasonably foreseeable litigation. In determining whether and at what point such a duty to preserve arose, the court shall include in its consideration the totality of the circumstances, including the extent to which the party or potential litigant was on notice that specific and identifiable litigation was likely and that the evidence would be relevant.
    2. If evidence that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, or is otherwise disposed of, altered, concealed, destroyed, or not preserved, and it cannot be restored or replaced through additional discovery, the court (i) upon finding prejudice to another party from such loss, disposal, alteration, concealment, or destruction of the evidence, may order measures no greater than necessary to cure the prejudice, or (ii) only upon finding that the party acted recklessly or with the intent to deprive another party of the evidence’s use in the litigation, may (a) presume that the evidence was unfavorable to the party, (b) instruct the jury that it may or shall presume that the evidence was unfavorable to the party, or (c) dismiss the action or enter a default judgment.
    3. Nothing in this section shall be interpreted as creating an independent cause of action for negligent or intentional spoliation of evidence.

    History. 2019, c. 732.

    Editor’s note.

    Acts 2019, c. 732, according to the legislative summary, was in response to Virginia Supreme Court’s holding in Emerald Point, LLC v. Hawkins , 294 Va. 544 , 808 S.E.2d 384, 2017 Va. LEXIS 197 (2017).

    § 8.01-379.3. General verdict accompanied by answer to interrogatories.

    Except in actions for negligence resulting in injury to person or death by wrongful act, in civil actions when the court determines that the complexity of the issues warrant, the court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. In actions for negligence resulting in injury to person or death by wrongful act, the court shall submit to the jury a general verdict form only, provided that the court may submit interrogatories to the jury if otherwise specifically authorized by law, if under substantive law governing the case comparative negligence applies, or if all parties to the action agree that interrogatories may be submitted to the jury. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are consistent, the appropriate judgment upon the verdict and answers shall be entered by the court. When the answers are consistent with each other but one or more is inconsistent with the general verdict, or when the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered and the court shall either order the jury to further consider its answers and verdict or order a new trial.

    History. 2005, c. 499.

    Law Review.

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    § 8.01-380. Dismissal of action by nonsuit; fees and costs.

    1. A party shall not be allowed to suffer a nonsuit as to any cause of action or claim, or any other party to the proceeding, unless he does so before a motion to strike the evidence has been sustained or before the jury retires from the bar or before the action has been submitted to the court for decision. After a nonsuit no new proceeding on the same cause of action or against the same party shall be had in any court other than that in which the nonsuit was taken, unless that court is without jurisdiction, or not a proper venue, or other good cause is shown for proceeding in another court, or when such new proceeding is instituted in a federal court. If after a nonsuit an improper venue is chosen, the court shall not dismiss the matter but shall transfer it to the proper venue upon motion of any party.
    2. Only one nonsuit may be taken to a cause of action or against the same party to the proceeding, as a matter of right, although the court may allow additional nonsuits upon reasonable notice to counsel of record for all defendants and upon a reasonable attempt to notify any party not represented by counsel, or counsel may stipulate to additional nonsuits. The court, in the event additional nonsuits are allowed, may assess costs and reasonable attorney fees against the nonsuiting party. When suffering a nonsuit, a party shall inform the court if the cause of action has been previously nonsuited. Any order effecting a subsequent nonsuit shall reflect all prior nonsuits and shall include language that reflects the date of any previous nonsuit together with the court in which any previous nonsuit was taken.
    3. If notice to take a nonsuit of right is given to the opposing party within seven days of trial or during trial, the court in its discretion may assess against the nonsuiting party reasonable witness fees and travel costs of expert witnesses scheduled to appear at trial, which are actually incurred by the opposing party, solely by reason of the failure to give notice at least seven days prior to trial. The court shall have the authority to determine the reasonableness of expert witness fees and travel costs. Invoices, receipts, or confirmation of payment shall be admissible to prove reasonableness without the need to offer testimony to support the authenticity or reasonableness of such documents, and may, in the court’s discretion, satisfy the reasonableness requirement under this subsection. Nothing herein shall preclude any party from offering additional evidence or testimony to support or rebut the reasonableness requirement.
    4. A party shall not be allowed to nonsuit a cause of action, without the consent of the adverse party who has filed a counterclaim, cross claim or third-party claim which arises out of the same transaction or occurrence as the claim of the party desiring to nonsuit unless the counterclaim, cross claim or third-party claim can remain pending for independent adjudication by the court.
    5. A voluntary nonsuit taken pursuant to this section is subject to the tolling provisions of subdivision E 3 of § 8.01-229 .

    History. Code 1950, §§ 8-220, 8-244; 1954, cc. 333, 611; 1977, c. 617; 1983, c. 404; 1991, c. 19; 2001, c. 825; 2004, c. 362; 2007, cc. 179, 367; 2013, cc. 274, 366; 2014, c. 86.

    REVISERS’ NOTE

    Section 8.01-380 : (1) adopts the provisions of former § 8-220 but (2) restricts the number of nonsuits which may be taken in an action by a party as a matter of right, and (3) expands the final sentence of former § 8-244.

    Subsection A adds to the language of former § 8-220 the phrase “as to any cause of action or any other party to the proceeding.” Subsection B adds several provisions to the former section. First, a party is restricted to one nonsuit as a matter of right. After taking the first nonsuit, a party can, with leave of court, or upon stipulation of the other party, be allowed additional nonsuits. The court, in permitting the additional nonsuit, may impose costs and reasonable attorney’s fees upon the nonsuiting party. Similarly, a party agreeing to an additional nonsuit may stipulate upon what conditions he will permit the nonsuit.

    Subsection C is former § 8-244 expanded to cover cross-claims and third-party claims. Additionally, even if the adverse party who has filed such a claim does not consent to the nonsuit, a nonsuit may be taken if such claim can remain pending for independent adjudication by the court.

    The 2001 amendments.

    The 2001 amendment by c. 825 inserted present subsection C and redesignated former subsection C as present subsection D.

    The 2004 amendments.

    The 2004 amendment by c. 362 twice substituted “seven” for “five” in the first sentence of subsection C.

    The 2007 amendments.

    The 2007 amendments by cc. 179 and 367 are identical, and inserted “upon reasonable notice to counsel of record for all defendants and upon a reasonable attempt to notify any party not represented by counsel” in the first sentence and added the third and fourth sentences of subsection B.

    The 2013 amendments.

    The 2013 amendments by cc. 274 and 366 are identical, and added the last two sentences of subsection C.

    The 2014 amendments.

    The 2014 amendment by c. 86, inserted subsection E.

    Law Review.

    For article, “Nonsuit in Virginia,” see 52 Va. L. Rev. 751 (1966).

    For comment, “The Voluntary Nonsuit in Virginia,” see 7 Wm. & Mary L. Rev. 357 (1966).

    For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

    For note on venue restrictions on cases which have previously been nonsuited, see 40 Wash. & Lee L. Rev. 534 (1983).

    For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

    For an article, ‘Final and Interlocutory Appeals in Virginia,‘ see 8 Geo. Mason L. Rev. 337 (1999).

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

    For article on medical malpractice law for the year 2007-2008, see 43 U. Rich. L. Rev. 227 (2008).

    For annual survey essay, “Election of Remedies in the Twenty-First Century: Centra Health, Inc. v. Mullins,” 44 U. Rich. L. Rev. 149 (2009).

    For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

    For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

    For annual survey article, “Civil Practice and Procedure,” see 46 U. Rich. L. Rev. 9 (2011).

    For annual survey article, “Local Government Law,” see 46 U. Rich. L. Rev. 175 (2011).

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    For Survey article, “Civil Practice and Procedure,” see 48 U. Rich. L. Rev. 1 (2013).

    For essay, “Nonsuit in Virginia Civil Trials,” see 48 U. Rich. L. Rev. 265 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 3C M.J. Commercial Law, § 33.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Application of section. —

    The venue restriction of this section applies only to causes filed and nonsuited in Virginia. Clark v. Clark, 11 Va. App. 286, 398 S.E.2d 82, 7 Va. Law Rep. 938, 1990 Va. App. LEXIS 194 (1990).

    A statutory plea filed pursuant to this section, successor to former § 8-241, is not a counterclaim as that term is used in subsection C of this section, successor to former § 8-244. Therefore, the conditions attaching to a nonsuit under subsection C do not apply. Bremer v. Doctor's Bldg. Partnership, 251 Va. 74 , 465 S.E.2d 787, 1996 Va. LEXIS 14 (1996).

    Because: (1) the circuit court lacked the authority to dismiss plaintiff’s personal injury action under Norfolk, Va., Cir. Ct. R. 2(F)(3); (2) the local rule conflicted with the provisions governing the discontinuance of cases set forth in § 8.01-335 ; and (3) the local rule abridged plaintiff’s right to take a nonsuit under § 8.01-380 and recommence the action, said dismissal was void ab initio, and not subject to the limitation period of Va.Sup. Ct. R. 1:1. Collins v. Shepherd, 274 Va. 390 , 649 S.E.2d 672, 2007 Va. LEXIS 116 (2007).

    Prisoner’s petition for a writ of actual innocence was not a civil action to which the nonsuit statute applied. In re Phillips, 296 Va. 433 , 822 S.E.2d 1, 2018 Va. LEXIS 182 (2018).

    Plaintiff has absolute right to one nonsuit. —

    Under this section, a plaintiff has an absolute right to one nonsuit. The election is his and if he insists upon taking the nonsuit within the limitations imposed by this section, neither the trial court nor opposing counsel can prevent him from doing so. Nash v. Jewell, 227 Va. 230 , 315 S.E.2d 825, 1984 Va. LEXIS 237 (1984).

    The common law considerations of prejudice were codified in this section by prohibiting a nonsuit if a pending counterclaim, cross claim, or third-party claim could not be independently adjudicated. Therefore, a plaintiff is entitled to one nonsuit as a matter of right if the provisions of this section are met without further analysis of prejudice to the defendant. Bremer v. Doctor's Bldg. Partnership, 251 Va. 74 , 465 S.E.2d 787, 1996 Va. LEXIS 14 (1996).

    This section gives a plaintiff a statutory right to one nonsuit even if a counterclaim or third-party claim is pending, if those claims can be independently adjudicated. Gilbreath v. Brewster, 250 Va. 436 , 463 S.E.2d 836, 1995 Va. LEXIS 146 (1995).

    “The action” subject to nonsuit request. —

    Under the language of this section, “the action” subject to a plaintiff’s nonsuit request is comprised of the claims and parties remaining in the case after any other claims and parties have been dismissed with prejudice or otherwise eliminated from the case. Dalloul v. Agbey, 255 Va. 511 , 499 S.E.2d 279, 1998 Va. LEXIS 63 (1998).

    Nonsuit was not prohibited by subsection A of § 8.01-380 as a motion to modify custody and visitation under § 20-108 was a new claim that was separate from the proceedings that resulted in the final divorce decree; since the claim had not been resolved when the nonsuit motion was filed, and the oral arguments had not concluded, the nonsuit was proper and the case did not revert to the time before the divorce decree was entered, but left the situation as if the motion to modify had never been filed. Gerensky-Greene v. Gerensky, 2012 Va. App. LEXIS 206 (Va. Ct. App. June 19, 2012).

    The difference in a FRCP Rule 41 dismissal and a Virginia nonsuit under this section goes more to matters of form than substance. While the Virginia statute does not require the consent of the defendant and can be taken at later stages in the proceeding, both the federal rule and the Virginia statute have as their purpose the voluntary dismissal of an action by a plaintiff without prejudice at some stage of a proceeding. Scoggins v. Douglas, 760 F.2d 535, 1985 U.S. App. LEXIS 31006 (4th Cir. 1985).

    This section pertains exclusively to limitations on the plaintiff ’s ability to obtain a nonsuit and the organization of subsection E of § 8.01-229 supports the conclusion that subdivision E 3 of § 8.01-229 applies only where the plaintiff has voluntarily dismissed an action. Ambrose Branch Coal Co. v. Tankersley, 106 Bankr. 462, 1989 U.S. Dist. LEXIS 12848 (W.D. Va. 1989).

    Limitations on right of nonsuit. —

    This section, the nonsuit statute, while giving a party the absolute right to one voluntary nonsuit, contains a number of limitations on that right. McManama v. Plunk, 250 Va. 27 , 458 S.E.2d 759, 1995 Va. LEXIS 90 (1995).

    Supervisors’ board could not obtain a nonsuit pursuant to subsection B of § 8.01-380 of the proceeding it filed via a petition for writ of certiorari in the trial court pursuant to § 15.2-2314 to request that the trial court reverse a zoning appeals board’s decision. A § 8.01-380 motion by its elements applied to trial proceedings while a § 15.2-2314 certiorari proceeding by its elements was in the nature of an appellate, rather than trial, proceeding. Bd. of Zoning Appeals v. Bd. of Supervisors, 275 Va. 452 , 657 S.E.2d 147, 2008 Va. LEXIS 31 (2008).

    Pursuant to subsection B of § 8.01-50 , only the personal representative of a decedent’s estate may bring a wrongful death action. As a decedent’s widow had not qualified as the administratrix of his estate when she filed suit, the action was a nullity; therefore, she was not entitled to a nonsuit under § 8.01-380 . Johnston Mem. Hosp. v. Bazemore, 277 Va. 308 , 672 S.E.2d 858, 2009 Va. LEXIS 32 (2009).

    Trial court did not err in denying a mother’s request for a nonsuit under § 8.01-380 because the evidence supported a finding that it was in the best interests of her child for the trial court to transfer the right to advocate for the protective order to the father and the guardian ad litem, and since the mother was a respondent to the preliminary protective order, her right to nonsuit the case against her was subordinate to the welfare of the child; in cases where allegations of child sexual abuse have been presented to the trial court and a preliminary protective order has been issued pursuant to those allegations, an alleged abuser’s “right” to nonsuit must be subordinate to the welfare of the child. Anonymous C v. Anonymous B, 2011 Va. App. LEXIS 14 (Va. Ct. App. Jan. 11, 2011).

    Service of process on defendant not required for nonsuit. —

    A plaintiff can secure a valid voluntary nonsuit pursuant to this section even though there has been no service of process on the defendants. Waterman v. Halverson, 261 Va. 203 , 540 S.E.2d 867, 2001 Va. LEXIS 18 (2001) (decided prior to 2007 amendments).

    Under subsection B of § 8.01-380 , a patient’s failure to provide notice to a podiatrist of her second motion for nonsuit in her second malpractice suit against him had not deprived the trial court of jurisdiction to enter an order dismissing her case without prejudice, since there had been no showing of fraud. Therefore, under Va. Sup. Ct. R. 1:1, the trial court erred in vacating the second nonsuit order more than 21 days after its entry. Janvier v. Arminio, 272 Va. 353 , 634 S.E.2d 754, 2006 Va. LEXIS 88 (2006) (decided prior to 2007 amendments).

    Court authorized to enter second nonsuit without notice to defendant. —

    Subsection B places no additional restriction on the granting of a second nonsuit other than to leave the matter to the trial court’s discretion or the concurrence of the parties. Therefore, subsection B of § 8.01-380 permits a trial court to grant a second non-suit even though the defendant has not been served. Janvier v. Arminio, 272 Va. 353 , 634 S.E.2d 754, 2006 Va. LEXIS 88 (2006) (decided prior to 2007 amendments).

    This section provides conditions to balance the exercise of a nonsuit. —

    The right to take a nonsuit on the eve of trial, notwithstanding a defendant’s loss of time and expense incurred in preparation, and notwithstanding any disruption which may result to the court’s docket, is a powerful tactical weapon in the hands of a plaintiff. The General Assembly has provided, in this section, several conditions to give balance to the exercise of that right. Nonsuit remains, however, distinctly a weapon in the arsenal of a plaintiff. Trout v. Commonwealth Transp. Comm'r, 241 Va. 69 , 400 S.E.2d 172, 7 Va. Law Rep. 1305, 1991 Va. LEXIS 1 (1991).

    Trial court cannot add limitations by judicial fiat. —

    Trial court erroneously placed limitations on the plaintiff’s right to the voluntary nonsuit when it ruled that defendant “must first had to have been served with process, must have been before a court with jurisdiction over the defendant’s person, and the defendant must have been given notice of hearing and an opportunity to be heard.” None of these requirements is found in the applicable statutes, and a court should not add them by judicial fiat. McManama v. Plunk, 250 Va. 27 , 458 S.E.2d 759, 1995 Va. LEXIS 90 (1995).

    Reach of nonsuit. —

    The plain language of this section declares that a nonsuit can be taken for an entire cause of action, which the Virginia Supreme Court defines as all the operative facts which, under the substantive law, may give rise to a right of action. Winchester Homes, Inc. v. Osmose Wood Preserving, Inc., 37 F.3d 1053, 1994 U.S. App. LEXIS 29160 (4th Cir. 1994).

    When trial court has reached final determination in a proceeding regarding any claims or parties to claims, those claims and parties are excluded by operation of law from any nonsuit request. Dalloul v. Agbey, 255 Va. 511 , 499 S.E.2d 279, 1998 Va. LEXIS 63 (1998).

    Attorney fees. —

    This section limits the assessment of attorney’s fees to the cause of action being nonsuited. It does not authorize such an assessment in a subsequent action. Nor does this section give the court the right to condition the filing of an amended motion for judgment upon the payment of such fees. Albright v. Burke & Herbert Bank & Trust Co., 249 Va. 463 , 457 S.E.2d 776, 1995 Va. LEXIS 48 (1995).

    Circuit court erred in awarding heirs attorney fees on the ground that a city had taken a second nonsuit in its action seeking to sell a parcel of land in order to satisfy delinquent real estate tax liens on the property because the circuit court’s order granted a first nonsuit as a matter of right to the city as to the heirs and was final under Va. Sup. Ct. R. 1:1, and, therefore, the circuit court had no jurisdiction to award attorney fees and costs twenty-one days after entry of that order, and the award was a nullity; because the action the city filed against the heirs was not the same cause of action it had previously filed against property owners, the nonsuit in the prior action did not operate to extinguish its right to take a first nonsuit, and the record did not support the heirs’ assertion that they were parties to the prior suit as successors in title because assuming that the heirs could establish an ownership interest in the property, the city sought recovery for delinquent taxes for different tax years. City of Suffolk v. Lummis Gin Co., 278 Va. 270 , 683 S.E.2d 549, 2009 Va. LEXIS 90 (2009).

    In a medical malpractice action, the circuit court erred in awarding costs to defendants because the written order awarding costs was entered more than twenty-one days after entry of the nonsuit order and thus was untimely under Va. Sup. Ct. R. 1:1. Kosko v. Ramser, 299 Va. 684 , 857 S.E.2d 914, 2021 Va. LEXIS 48 (2021).

    Costs of impaneling a jury. —

    Because a plaintiff had an absolute right to a first nonsuit, subsection C of § 8.01-380 did not authorize the imposition of the costs of impaneling a jury on the plaintiff. Martin v. Duncan, 277 Va. 204 , 671 S.E.2d 151, 2009 Va. LEXIS 17 (2009).

    Effect of a nonsuit. —

    The only effect of a nonsuit is to put an end to the pending litigation without prejudice to either party. Alderman v. Chrysler Corp., 480 F. Supp. 600, 1979 U.S. Dist. LEXIS 8782 (E.D. Va. 1979), disapproved, Yarber v. Allstate Ins. Co., 674 F.2d 232, 1982 U.S. App. LEXIS 20861 (4th Cir. 1982).

    A judgment of nonsuit does not operate as a bar to a subsequent suit between the same parties on the same cause of action. Alderman v. Chrysler Corp., 480 F. Supp. 600, 1979 U.S. Dist. LEXIS 8782 (E.D. Va. 1979), disapproved, Yarber v. Allstate Ins. Co., 674 F.2d 232, 1982 U.S. App. LEXIS 20861 (4th Cir. 1982).

    The entry of nonsuit in the state court was against the three defendants in the instant case, and, therefore, served to nonsuit the entire cause of action as to these defendants, rather than only the particular claims remaining in the suit at the time of nonsuit. Winchester Homes, Inc. v. Osmose Wood Preserving, Inc., 37 F.3d 1053, 1994 U.S. App. LEXIS 29160 (4th Cir. 1994).

    Since the allegations of fact that formed the basis of a habeas petition were known at the time the first habeas petition was nonsuited, but were not raised therein, the writ of habeas corpus was dismissed. Daniels v. Warden of the Red Onion State Prison, 266 Va. 399 , 588 S.E.2d 382, 2003 Va. LEXIS 112 (2003).

    Where a patient filed a medical malpractice action against a variety of defendants, which she then nonsuited pursuant to § 8.01-380 , and her renewed action was not commenced within the two-year limitations period of subsection A of § 8.01-243 , nor was it filed within the six-month period from the date of the nonsuit order pursuant to subdivision E 3 of § 8.01-229 , her action was barred by the limitations period; the court noted that the statute of limitations was not tolled upon commencement of the nonsuited action because she had failed to file the second action within the six-month window. Simon v. Forer, 265 Va. 483 , 578 S.E.2d 792, 2003 Va. LEXIS 43 (2003).

    As a trial court erred in vacating a second nonsuit order entered in favor of a patient in her second malpractice suit against a podiatrist, it also erred in finding that the patient’s third malpractice suit was time barred under § 8.01-243 , since it was filed within six months of the entry of the second nonsuit order, as permitted by § 8.01-229 . Janvier v. Arminio, 272 Va. 353 , 634 S.E.2d 754, 2006 Va. LEXIS 88 (2006) (decided prior to 2007 amendments).

    Pursuant to § 20-79 , a district court’s jurisdiction over child and spousal support ceased and its support order became inoperative upon entry of a circuit court’s pendente lite support order. However, once the circuit court granted the former husband’s motion for a voluntary nonsuit, the district court’s jurisdiction and the operation of its support order automatically resumed by operation of law. Ipsen v. Moxley, 49 Va. App. 555, 642 S.E.2d 798, 2007 Va. App. LEXIS 142 (2007).

    Pursuant to § 20-79 , where a district court exercised its jurisdiction over child and spousal support issues and “lost” it only upon the entry of a temporary support order in a proceeding that ended in a nonsuit, this places the parties back to where they were before the suit was filed; the district court’s support order automatically resumes upon entry of the nonsuit order. Ipsen v. Moxley, 49 Va. App. 555, 642 S.E.2d 798, 2007 Va. App. LEXIS 142 (2007).

    Insured asserted three new rights of action, two for breach of contract, and one for declaratory relief, that all arose out of the same set of operative facts as the umpire proceeding, and given the broad scope of an “action” as defined by Virginia law, which included all civil proceedings whether upon claims at law, in equity, or statutory in nature, the umpire proceeding was an “action” that was nonsuited. Thus, pursuant to subdivision E 3 of § 8.01-229 and § 8.01-380 , the act of nonsuiting that “action,” tolled the two year statute of limitations under § 38.2-2105 for all rights of action arising from that cause of action, including the insured’s present right of action for breach of contract and declaratory relief; liberal construction of the tolling statutes to include an umpire proceeding as an action the nonsuit of which tolled her right to file the instant action for damages, was therefore appropriate. Vaughan v. First Liberty Ins. Corp., No. 3:09cv364, 2009 U.S. Dist. LEXIS 108045 (E.D. Va. Nov. 13, 2009).

    Because the employee still had options left in state court to pursue her cause of action, the removal of the case to federal court should not change that action; the vacated nonsuit could not be treated as an exhaustion of the employee’s right to take at least one nonsuit, and the employee’s timely appeal was sufficient to preserve her right to perfect service of process upon remand. Rice v. Alpha Sec., Inc., 556 Fed. Appx. 257, 2014 U.S. App. LEXIS 3483 (4th Cir. 2014).

    Personal representative chose to exercise her right to take a voluntary nonsuit, but once she did so, it was as if the 2010 action had never been filed, and for any aspect of the 2010 action to be incorporated into the 2012 action, an order had to explicitly permit it; the trial court incorporated all discovery conducted in the 2010 action, but the order did not incorporate the motions to compel, objections, or rulings on the motions, and it was if they never existed, and those rulings in the 2010 nonsuited action could not be challenged on appeal. Temple v. Mary Washington Hosp., Inc., 288 Va. 134 , 762 S.E.2d 751, 2014 Va. LEXIS 114 (2014).

    Tolling of limitations period. —

    In a diversity medical malpractice case in which the patient voluntarily nonsuited her state case and added two new claims and defendants, citing the Virginia two-year statute of limitations for personal injury claims, § 8.01-243 , filed a motion to dismiss the federal complaint with respect to the newly-pled claims of failure to perform an alternative procedure and lack of informed consent, all of the patient’s current claims related to a common transaction or occurrence, and therefore constituted a single cause of action. Because her additional claims were included within the nonsuited cause of action, as defined by the nonsuit statute, they were also properly considered as part of the nonsuited action that could be recommenced within six months of the nonsuit, as understood by the nonsuit statute of limitations tolling provision. Dunston v. Huang, 709 F. Supp. 2d 414, 2010 U.S. Dist. LEXIS 22844 (E.D. Va. 2010).

    Contributory negligence as bases for nonsuit. —

    When a trial court found, in a wrongful death action, that the decedent was contributorily negligent, it was not error for the trial court to grant a voluntary nonsuit as to all claims and parties without preserving its contributory negligence finding, because the contributory negligence finding did not have the effect of dismissing any claims or parties, as liability could still be based on the tortfeasor’s willful and wanton conduct. Wilby v. Gostel, 265 Va. 437 , 578 S.E.2d 796, 2003 Va. LEXIS 39 (2003).

    This section permitted the plaintiff to refile her action in circuit court because the ad damnum clause in her motion for judgment exceeded the general district court’s jurisdictional limit of $10,000; therefore the district court was without jurisdiction to adjudicate her claims. Conner v. Rose, 252 Va. 57 , 471 S.E.2d 478, 1996 Va. LEXIS 72 (1996).

    Nonsuit prior to ruling on motion to strike. —

    When trial judge analyzes motion to strike, summarizes and discusses the evidence, and then rules on the motion, a plaintiff is free to suffer a nonsuit at any time prior to a ruling by the court. Newton v. Veney, 220 Va. 947 , 265 S.E.2d 707, 1980 Va. LEXIS 189 (1980).

    On a motion to strike, the court “rules” or “decides” when it sustains or overrules the motion. It is this act that imparts finality to and disposition of the matter, and until it occurs a party is allowed to suffer a nonsuit. Newton v. Veney, 220 Va. 947 , 265 S.E.2d 707, 1980 Va. LEXIS 189 (1980).

    Authority to consider sanctions after nonsuit granted. —

    Because an employer’s § 8.01-271.1 motion for sanctions was pending when the employee moved for a first nonsuit, the trial court was empowered to consider the sanctions motion either before the entry of the nonsuit order or within 21 days after the entry of the nonsuit order under Va. Sup. Ct. R. 1:1. Williamsburg Peking Corp. v. Xianchin Kong, 270 Va. 350 , 619 S.E.2d 100, 2005 Va. LEXIS 83 (2005).

    Nonsuit prior to motion to dismiss. —

    In a divorce case, nonsuit was properly granted, under subsection A of this section, because the trial court had not yet considered the merits of the husband’s motion to dismiss, or heard argument on other issues of the grounds for divorce, equitable distribution and spousal support, so the matter had not been “submitted to the court for decision.” Thompson v. Dickerson, 2003 Va. App. LEXIS 88 (Va. Ct. App. Feb. 25, 2003).

    Nonsuit after motion to dismiss. —

    Where a driver had moved to dismiss a motorist’s personal injury action based on insufficient service of process under § 8.01-326.1 , the matter clearly had been submitted to the trial court for decision, and no further submissions were contemplated, the trial court erred in granting the motorist’s § 8.01-380 motion for a nonsuit. Atkins v. Rice, 266 Va. 328 , 585 S.E.2d 550, 2003 Va. LEXIS 85 (2003).

    The “forum shopping” limitation in subsection A is made to apply only where a new proceeding is brought after a nonsuit is taken in an action previously filed. It would not prohibit the prosecution of a proceeding filed before a nonsuit is taken in a pending action covering the same claim. Moore v. Gillis, 239 Va. 239 , 389 S.E.2d 453, 6 Va. Law Rep. 1426, 1990 Va. LEXIS 39 (1990).

    Nonsuit in circuit court required refiling of petition in circuit court, not general district court. —

    Circuit court erred when it exercised subject matter jurisdiction over a case alleging an unfit pet owner pursuant to former § 3.1-796.115 that originated in general district court, was appealed to the circuit court and nonsuited there, was subsequently refiled in the general district court, dismissed, and then appealed to the circuit court. The county was required by subsection A of § 8.01-380 to refile its petition, following the nonsuit, in the circuit court. Although the circuit court did not have original or general jurisdiction over the former § 3.1-796.115 petition pursuant to § 17.1-513 , the circuit court did obtain appellate jurisdiction derivatively from the de novo appeal taken from the general district court. Davis v. County of Fairfax, 282 Va. 23 , 710 S.E.2d 466, 2011 Va. LEXIS 125 (2011).

    Applicability of section in condemnation proceedings. —

    An “action” and a “cause of action” are quite different: “action” is defined by § 8.01-2 , and “cause of action” is defined as a set of operative facts which, under the substantive law, may give rise to a right of action. Because of that difference, there are no express terms in this section making it specifically applicable to condemnation proceedings. Trout v. Commonwealth Transp. Comm'r, 241 Va. 69 , 400 S.E.2d 172, 7 Va. Law Rep. 1305, 1991 Va. LEXIS 1 (1991).

    Petitioner in condemnation proceeding is not a traditional plaintiff. —

    The parties to a condemnation proceeding are not in the position of plaintiffs and defendants in traditional actions or suits. Traditional burden-of-proof rules are inapplicable to condemnation cases. The petitioner in a condemnation case is, therefore, not a traditional plaintiff. Although he has the statutory duty to institute the proceeding, he has no ultimate risk of nonpersuasion. Trout v. Commonwealth Transp. Comm'r, 241 Va. 69 , 400 S.E.2d 172, 7 Va. Law Rep. 1305, 1991 Va. LEXIS 1 (1991).

    Indeed, after the condemnor has acquired title and instituted the proceeding for the ascertainment of just compensation, he is in the position of a defendant. The condemnor, therefore, is not entitled to nonsuit the proceeding over the owner’s objection because of any traditional advantages inhering in the position of a plaintiff in an action at law. Trout v. Commonwealth Transp. Comm'r, 241 Va. 69 , 400 S.E.2d 172, 7 Va. Law Rep. 1305, 1991 Va. LEXIS 1 (1991).

    A condemnor has no right to a nonsuit or a voluntary dismissal of a condemnation proceeding, without the owners’ consent, after any interest in, or possession of, the property has been acquired. Trout v. Commonwealth Transp. Comm'r, 241 Va. 69 , 400 S.E.2d 172, 7 Va. Law Rep. 1305, 1991 Va. LEXIS 1 (1991).

    Actions previously filed and nonsuited in a jurisdiction other than Virginia. —

    This section does not preclude a party from filing a cognizable cause of action in Virginia courts even though he or she has previously filed and nonsuited the same action in a jurisdiction other than in Virginia. Clark v. Clark, 11 Va. App. 286, 398 S.E.2d 82, 7 Va. Law Rep. 938, 1990 Va. App. LEXIS 194 (1990).

    Notice to defendant who had filed cross-claim. —

    An order of nonsuit should not have been entered against a defendant without notice to another defendant who had previously filed a cross-claim against the nonsuited defendant. Iliff v. Richards, 221 Va. 644 , 272 S.E.2d 645, 1980 Va. LEXIS 286 (1980).

    Nonsuit motion prior to cross-petition. —

    Where a nonsuit motion was filed two days before a guardian ad litem filed custody and visitation cross-petitions, the guardian ad litem had no grounds for an objection under subsection D of § 8.01-380 . Sharman v. Gillepsie, 2010 Va. App. LEXIS 47 (Va. Ct. App. Feb. 9, 2010).

    Order of nonsuit appealable. —

    Where a dispute exists whether the trial court properly granted a motion for nonsuit, that order of nonsuit is a final, appealable order within the meaning of subdivision A 3 of § 8.01-670 . Wells v. Lorcom House Condominiums' Council of Co-Owners, 237 Va. 247 , 377 S.E.2d 381, 5 Va. Law Rep. 1773, 1989 Va. LEXIS 33 (1989).

    Ordinarily, an order of nonsuit is not to be considered a final judgment for purposes of appeal. An order of nonsuit is a final, appealable order within the meaning of subdivision A 3 of § 8.01-670 , only when a dispute exists whether the trial court properly granted a motion for nonsuit. McManama v. Plunk, 250 Va. 27 , 458 S.E.2d 759, 1995 Va. LEXIS 90 (1995).

    New suit in federal court. —

    While in general after a nonsuit, a new suit on the same cause of action must be brought in the same court in which the nonsuit was suffered, unless that court is without jurisdiction, is of improper venue, or other good cause is shown for proceeding in another court, this limitation does not apply to a new suit in a federal court having proper jurisdiction. Alderman v. Chrysler Corp., 480 F. Supp. 600, 1979 U.S. Dist. LEXIS 8782 (E.D. Va. 1979), disapproved, Yarber v. Allstate Ins. Co., 674 F.2d 232, 1982 U.S. App. LEXIS 20861 (4th Cir. 1982).

    A federal court sitting in diversity must honor Virginia law restricting the court within which a nonsuited plaintiff may recommence in order to invoke the saving provision as the Virginia restriction is an integral part of the several policies served by Virginia’s statutes of limitations and must be applied in consolidated federal diversity actions. Yarber v. Allstate Ins. Co., 674 F.2d 232, 1982 U.S. App. LEXIS 20861 (4th Cir. 1982).

    Federal dismissal not bar to nonsuit. —

    Employee’s prior dismissal of a federal lawsuit did not bar his right to take a nonsuit as a matter of right under subsection B of § 8.01-380 in a Virginia state court because a voluntary dismissal in federal court was not treated as a voluntary nonsuit prescribed in § 8.01-380 ; the right to take a nonsuit pursuant to subsection B in a Virginia state court was much more expansive than the right to a voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) in federal court. The plain language of subdivision E 3 of § 8.01-229 demonstrated that the reference to actions originally filed in federal court applied only to the application of the tolling provision. INOVA Health Care Servs. v. Kebaish, 284 Va. 336 , 732 S.E.2d 703, 2012 Va. LEXIS 170 (2012).

    Judgment against plaintiff where property was seized and placed beyond court’s jurisdiction. —

    Where the plaintiff, after seizing property under authority of statute and placing it beyond the jurisdiction of the court, decided to manipulate the statutory scheme by exercising the privilege of nonsuit, the detinue statutes contemplated entry of a specific judgment in the detinue proceedings against the plaintiff for the value of the property. J.I. Case Co. v. United Va. Bank, 232 Va. 210 , 349 S.E.2d 120, 3 Va. Law Rep. 934, 1986 Va. LEXIS 247 (1986).

    The trial court did not err in ruling that defendants’ motion for nonsuit came too late since it would be absurd to hold that a claimant could suffer a nonsuit as a matter of right after a court had decided the claim. Khanna v. Dominion Bank, 237 Va. 242 , 377 S.E.2d 378, 5 Va. Law Rep. 1767, 1989 Va. LEXIS 54 (1989).

    Motion before ruling held timely. —

    Move to nonsuit during the court’s discussion of its proposed ruling, but before it had ruled, was timely. Hilb, Rogal & Hamilton Co. v. DePew, 247 Va. 240 , 440 S.E.2d 918, 10 Va. Law Rep. 981, 1994 Va. LEXIS 29 (1994).

    A request for a nonsuit was timely where it was made before the court recessed to consider the merits of the defendant’s motion for judgment on the pleadings. Kelly v. Carrico, 256 Va. 282 , 504 S.E.2d 368, 1998 Va. LEXIS 114 (1998).

    Complaints timely, even though filed before nonsuit orders. —

    Dismissal of later actions as untimely was error because, under subdivision E 3 of § 8.01-229 , a new action had to be filed within six months from the date of the nonsuit order in a prior action; because the complaints were refiled within six months of nonsuit orders, they were timely, even though the second complaints were filed before the nonsuit orders in prior case. Laws v. McIlroy, 283 Va. 594 , 724 S.E.2d 699, 2012 Va. LEXIS 85 (2012).

    Motion after the parties completed their arguments not timely. —

    Trial court erred in granting a patient’s motion for a voluntary nonsuit under subsection A of § 8.01-380 as to a personal injury action against a dialysis center, because the motion was made after the parties completed their arguments on a summary judgment motion, and thus the action had already been submitted to the court for decision and was not filed in a timely fashion. Bio-Medical Applications of Va., Inc. v. Coston, 272 Va. 489 , 634 S.E.2d 349, 2006 Va. LEXIS 75 (2006).

    Nonsuit held proper. —

    Trial court did not err in granting a nonsuit of claims that alleged negligence and misrepresentation against an insurance agency, and holding that a marina owner’s action against the insurance agency had not been submitted to the trial court for decision within the meaning of the statute. Transcon. Ins. Co. v. RBMW, Inc., 262 Va. 502 , 551 S.E.2d 313, 2001 Va. LEXIS 109 (2001).

    Injured party was properly allowed to voluntarily nonsuit her amended motion for judgment under subsection A of § 8.01-380 on remand even though her claims had been submitted to the jury during the first trial, which retired and rendered a verdict; the injured party took her nonsuit after remand to the trial court so none of the statutory restrictions upon her right to a nonsuit existed, and her case on remand had not been submitted to a jury, a motion to strike had not been sustained, and the case had not been submitted to the trial court for decision. Ford Motor Co. v. Jones, 266 Va. 404 , 587 S.E.2d 579, 2003 Va. LEXIS 99 (2003).

    Trial court properly granted a nonsuit to a plaintiff in a second cause of action where the plaintiff in the first cause of action and the substituting plaintiff in the second cause of action were not suing in the same right. Entry of the nonsuit nunc pro tunc, however, was an error that required a remand to the trial court. Brake v. Payne, 268 Va. 92 , 597 S.E.2d 59, 2004 Va. LEXIS 101 (2004).

    Despite the fact that service of process upon a debtor was not effected within one year of the commencement of a lender’s action against her, the lender was entitled to a voluntary nonsuit. Berry v. F&S Fin. Mktg., 271 Va. 329 , 626 S.E.2d 821, 2006 Va. LEXIS 24 (2006).

    Abuse of process. —

    Improper use of regularly issued process was not shown in an employee’s motion for judgment claiming abuse of process against a professional corporation and its owner by the fact that they nonsuited a cross-bill against her and refused to dismiss it with prejudice; the possibility that litigation might be refiled after a nonsuit was not a threat amounting to coercion since all nonsuits carry that right with them. Montgomery v. McDaniel, 271 Va. 465 , 628 S.E.2d 529, 2006 Va. LEXIS 41 (2006).

    B.Withdrawal of Nonsuit.

    Court may permit withdrawal of nonsuit before order entered. —

    There is no termination of litigation until the court enters an appropriate order. Therefore, before entry of such an order the plaintiff may reconsider his decision to take a nonsuit. He has no right to withdraw the nonsuit, but he has a right to move the trial court to permit withdrawal. The granting or denial of the motion is a matter for the trial court to determine in the exercise of judicial discretion. Nash v. Jewell, 227 Va. 230 , 315 S.E.2d 825, 1984 Va. LEXIS 237 (1984).

    II.Decisions Under Prior Law.

    Editor’s note.

    Under this section, plaintiff has the absolute right to take a nonsuit. Joseph v. Blair, 488 F.2d 403, 1973 U.S. App. LEXIS 7729 (4th Cir. 1973), cert. denied, 416 U.S. 955, 94 S. Ct. 1968, 40 L. Ed. 2d 305, 1974 U.S. LEXIS 430 (1974).

    That the trial court has indicated how it will decide a case does not preclude plaintiff from taking a nonsuit. Berryman v. Moody, 205 Va. 516 , 137 S.E.2d 900, 1964 Va. LEXIS 211 (1964).

    The statutory privilege of taking a nonsuit cannot be denied a plaintiff upon the suspicion or surmise that his counsel has correctly divined the intention of the trial court to give a peremptory instruction against him. Such a construction would lead to confusion and render uncertain and precarious a right based upon the compliance with terms which are clearly and plainly defined. Berryman v. Moody, 205 Va. 516 , 137 S.E.2d 900, 1964 Va. LEXIS 211 (1964).

    The effect of a nonsuit is simply to put an end to the present action, but is no bar to a subsequent action for the same cause. Manifestly, it is unsuited to pure appellate procedure. Thomas Gemmell, Inc. v. Svea Fire & Life Ins. Co., 166 Va. 95 , 184 S.E. 457 , 1936 Va. LEXIS 168 (1936).

    A nonsuit is not a final judgment within the meaning of § 8.01-670 . Mallory v. Taylor, 90 Va. 348 , 18 S.E. 438 , 1893 Va. LEXIS 58 (1893).

    Procedure under 1977 version of section. —

    Under § 8.01-229 E 3 (1978 version) and this section (1977 version) if a plaintiff took a nonsuit, the statute of limitations would be tolled provided that the plaintiff recommenced the action in the same court in which the nonsuit was taken within six months. Thus where plaintiffs filed their actions in federal court in 1980, took voluntary dismissals in 1985, and recommenced their actions within six months, they were entitled to invoke the tolling provision of the 1978 version of § 8.01-229 E 3 to save their cases from the personal injury statute of limitations. Sherman v. Hercules, Inc., 636 F. Supp. 305, 1986 U.S. Dist. LEXIS 24992 (W.D. Va. 1986).

    Practice when necessary to substitute entirely new plaintiff. —

    An entirely new plaintiff cannot be substituted after it has become manifest that the original plaintiff could not maintain the action. The proper practice in such a case would have been for the plaintiff to ask to be allowed to suffer a nonsuit under this section, and to have renewed the suit in the name of the proper plaintiff. Norfolk S.R.R. v. Greenwich Corp., 122 Va. 631 , 95 S.E. 389 , 1918 Va. LEXIS 126 (1918).

    For a “submission” to occur under the procedural circumstances of a suit such as a divorce suit, in which both litigants are represented by counsel who filed pleadings in the cause, it is necessary for the parties, by counsel, to both yield the issues to the court for consideration and decision. This could be accomplished either as the result of oral or written argument, formal notice and motion, or by tendering a jointly endorsed sketch for a decree (or in the case of disagreement over the form, two separate drafts upon notice and motion). Moore v. Moore, 218 Va. 790 , 240 S.E.2d 535, 1978 Va. LEXIS 148 (1978).

    Unilateral act of the defendant in an action for divorce of forwarding to the court a sketch for a decree is not equivalent to a “submission” of the cause to the trial court for decision. Moore v. Moore, 218 Va. 790 , 240 S.E.2d 535, 1978 Va. LEXIS 148 (1978).

    Neither is mere filing of commissioner’s report. —

    The mere filing by the commissioner of his report in a divorce case, without more, under Virginia equity practice does not amount to a “submission” of the cause to the trial court for decision. Moore v. Moore, 218 Va. 790 , 240 S.E.2d 535, 1978 Va. LEXIS 148 (1978).

    New suit in federal court. —

    This section was intended to regulate procedure and practice in the courts of the State and was not intended to limit the jurisdiction of courts of the United States. Popp v. Archbell, 203 F.2d 287, 1953 U.S. App. LEXIS 3369 (4th Cir. 1953).

    The effect of this section is merely to limit the venue of any new action brought on the cause of action which has been nonsuited and a State venue statute can have no application to courts of the United States. Popp v. Archbell, 203 F.2d 287, 1953 U.S. App. LEXIS 3369 (4th Cir. 1953).

    Application in federal practice of directing verdicts. —

    After a motion by defendant for a directed verdict, a plaintiff has no absolute right then to suffer a nonsuit. This section does not govern in view of the accepted Virginia practice, under § 8.01-378 , not to direct verdicts. Pannill v. Roanoke Times Co., 252 F. 910, 1918 U.S. Dist. LEXIS 973 (D. Va. 1918).

    Federal intervention not warranted. —

    Where plaintiff previously found guilty of a violation of a city ordinance, but where his sentencing was postponed pending adjudication in a federal suit of the validity of the ordinance, and where plaintiff had moved for a nonsuit under this section in his civil action in a state court on the validity of the ordinance, there were no proceedings in the state courts, civil or criminal, which would warrant federal intervention. Joseph v. Blair, 488 F.2d 403, 1973 U.S. App. LEXIS 7729 (4th Cir. 1973), cert. denied, 416 U.S. 955, 94 S. Ct. 1968, 40 L. Ed. 2d 305, 1974 U.S. LEXIS 430 (1974).

    CIRCUIT COURT OPINIONS

    Applicability. —

    This section, which provides that one nonsuit of right is available as to any cause of action, applies to a county’s challenge to the actions of a board of zoning appeals by means of a petition for a writ of certiorari, since that is a “cause of action” within the meaning of § 8.01-380 . Bd. of Supervisors v. Bd. of Zoning Appeals, 71 Va. Cir. 170, 2006 Va. Cir. LEXIS 103 (Fairfax County June 23, 2006), rev'd, 275 Va. 452 , 657 S.E.2d 147, 2008 Va. LEXIS 31 (2008) (see note above).

    When action had not been yielded to the court for consideration. —

    Nonsuit in de novo appeal from child support proceedings could be taken by the Division of Child Support Enforcement under subsection A of § 8.01-380 as the action had not been yielded to the court for consideration as further submissions were contemplated from the parties and further evidence was heard after the motion was made albeit subject to the court’s ultimate ruling on the motion. Div. of Child Support Enforcement ex rel. Abediyi v. Ferguson, 77 Va. Cir. 341, 2008 Va. Cir. LEXIS 163 (Roanoke Dec. 12, 2008).

    “Independent adjudication” requirement not met. —

    As the second defendant’s cross-claim against a third-party defendant, seeking indemnification, was a derivative claim that could not be independently adjudicated, and the second defendant had not consented to a nonsuit, the first defendant’s request for nonsuit as to its cross-claim against the second defendant was denied. Bd. of Dirs. of the Lesner Pointe Condo. on the Chesapeake Bay Ass'n v. Harbour Point Bldg. Corp., 2002 Va. Cir. LEXIS 421 (Virginia Beach Oct. 25, 2002) (see also,).Lesner Pointe Condo. Ass'n v. Harbour Point Bldg. Corp., 61 Va. Cir. 609, 2002 Va. Cir. LEXIS 424 (Virginia Beach Apr. 10, 2002).

    Same transaction test. —

    Although Va. Sup. Ct. R. 1:6 concerns res judicata and § 8:01-380 involves nonsuits, it cannot reasonably be maintained that the transactional approach is not applicable to the nonsuit provisions. Given that the evidentiary test has been abandoned and superseded in both the res judicata and nonsuit tolling contexts, the Circuit Court of Fairfax County, Virginia, finds that § 8.01-380 commands the application of the same transaction test. Davidson v. DuBrueler, 98 Va. Cir. 357, 2018 Va. Cir. LEXIS 58 (Fairfax County Apr. 24, 2018).

    No validly pending action. —

    No action was validly pending that could be non-suited where plaintiff’s original complaint had a defect in signature, the defect could not be cured by an amendment to the complaint that would relate back to the original date of filing, and the claim in the proposed amended complaint was barred by the statute of limitations; thus, there was no action that could be non-suited. Lipoli v. Stutesman, 85 Va. Cir. 156, 2012 Va. Cir. LEXIS 170 (Norfolk Aug. 1, 2012).

    Filing of counterclaim. —

    Nonsuit in de novo appeal from child support proceedings could be taken by the Division of Child Support Enforcement under subsection D of § 8.01-380 because although the appeal was heard de novo without formal pleadings under § 16.1-136 , the father was not relieved of the duty to file an actual counterclaim. Div. of Child Support Enforcement ex rel. Abediyi v. Ferguson, 77 Va. Cir. 341, 2008 Va. Cir. LEXIS 163 (Roanoke Dec. 12, 2008).

    Nonsuit held proper. —

    Parents had the unchallenged right to nonsuit the two defendants; the parents were entitled to make the tactical decisions that would maximize the likelihood of recovery from the manufacturer, the solvent defendant, therefore, the motion for mistrial based on the nonsuit was denied. Simmons v. MTD Prods., 75 Va. Cir. 63, 2008 Va. Cir. LEXIS 224 (Roanoke Feb. 29, 2008).

    Wife’s motion for reconsideration of the court’s order granting her motion for a nonsuit of her divorce action, but as a second nonsuit, and awarding costs and attorney fees to the husband, was denied because the husband was a party to the same type of case as was previously nonsuited, and he was thus “the same party to the proceeding,” and because the wife had previously been granted a nonsuit against him, the wife did not have a right to a first nonsuit against him; she was eligible only for a second nonsuit against him. Day v. Day, 102 Va. Cir. 17, 2019 Va. Cir. LEXIS 76 (Fairfax County Apr. 1, 2019).

    Nonsuit granted. —

    Even if there was no service of process on a nonresident, the court could grant a nonsuit as failure to obtain proper service was not deliberate or from inattention and the plaintiff did not need a basis for her nonsuit. Dixon v. Messer, 56 Va. Cir. 366, 2001 Va. Cir. LEXIS 472 (Norfolk Aug. 21, 2001).

    Plaintiff’s motion for nonsuit was granted where the cause of action at issue had arisen long after the nonsuit of a prior action, and although the instant action involved the same agreements, it arose from a different and distinct set of operative facts. Davidson v. DuBrueler, 98 Va. Cir. 357, 2018 Va. Cir. LEXIS 58 (Fairfax County Apr. 24, 2018).

    Nonsuit denied. —

    Plaintiff’s motion for a nonsuit was denied under the provisions of subsection C of this section, as the defendant’s third party claim for indemnification was unresolved and could not be resolved independently of the principal action; action was dismissed for failure to prosecute. Carson v. Robinson, 54 Va. Cir. 255, 2000 Va. Cir. LEXIS 589 (Norfolk Dec. 15, 2000).

    Injured party was not entitled to nonsuit an action under § 8.01-380 and Sup. Ct. R. 3:3 [see now Rule 3:5] against defendant doctor, who filed a defense and cross-claim against cross-defendant doctor, because defendant doctor was served with process, and was entitled to raise defect in service in a motion to dismiss under § 8.01-277 , and because the cross-claim could not be independently adjudicated. Doulgerakis v. Cooper, 57 Va. Cir. 326, 2002 Va. Cir. LEXIS 211 (Newport News Jan. 31, 2002).

    To protect the statute of limitations in the injured party’s action, she was obligated to name the personal representative of the deceased within the six-month period following her voluntary non-suit; where she did not, the personal representative’s plea in bar was granted, and the injured party’s action was dismissed, with prejudice. George v. Aylward, 62 Va. Cir. 457, 2003 Va. Cir. LEXIS 288 (Prince William County Aug. 27, 2003).

    Parties plaintiff in two medical malpractice actions were not only substantially the same parties, they were the same and sole real party in interest, a minor; because the minor had already taken one nonsuit of right as to causes of action against the same parties defendant, he was not entitled to a second nonsuit of right. Halatyn v. Miller, 69 Va. Cir. 236, 2005 Va. Cir. LEXIS 223 (Fairfax County Oct. 31, 2005).

    In a suit seeking to have a deed of trust declared null and void, a motion for a nonsuit was not timely because the matter had been submitted within the meaning of subsection A of § 8.01-381 when defendant’s counsel had filed a responsive brief, and plaintiff’s counsel had not been given leave to file a further response. Law Office of Frank Driscoll, Jr., P.L.L.C. v. Plexus Lending, L.L.C., 78 Va. Cir. 411, 2009 Va. Cir. LEXIS 178 (Norfolk July 14, 2009).

    Notice requirement for second nonsuit. —

    Where the patient in the medical malpractice case obtained a second nonsuit without giving notice to the doctor and medical practice of the motion for nonsuit, the second nonsuit was void and the case was time-barred due to the fact that the statute of limitations had not been tolled by the second nonsuit under § 8.01-229 . Janvier v. Arminio, 68 Va. Cir. 168, 2005 Va. Cir. LEXIS 129 (Fairfax County June 22, 2005), rev'd, 272 Va. 353 , 634 S.E.2d 754, 2006 Va. LEXIS 88 (2006) (decided prior to 2007 amendments).

    Invalidity of second nonsuit. —

    The trial court properly granted defendants’ motion to quash service and plea in bar, because a second nonsuit filed by plaintiff was invalid, as plaintiff did not seek permission from the court to file the second nonsuit and did not inform the court that the nonsuit was the second filed, and therefore the instant motion for judgment arising from a car accident was time barred. Houben v. Duncan, 58 Va. Cir. 391, 2002 Va. Cir. LEXIS 47 (Fairfax County Mar. 21, 2002).

    Because a court’s second nonsuit order did not reflect that it was an “additional nonsuit” as described by § 8.01-380 , the tolling provisions of § 8.01-229 did not apply; consequently, a patient’s medical malpractice action was time-barred and had to be dismissed. Naugle v. Miller, 71 Va. Cir. 408, 2004 Va. Cir. LEXIS 382 (Virginia Beach Dec. 2, 2004).

    Because a patient’s failure to give notice to the doctors and to fully inform the tribunal before entry of a second nonsuit order in accordance with Va. Sup. Ct. R., pt. 6, § II, R. 3:3(c), the second non-suit was void as it was not suffered as prescribed in § 8.01-380 ; therefore, the tolling provisions of subdivision E 3 of § 8.01-229 were not triggered, and the third action was time-barred. Humphreys v. Carey, 71 Va. Cir. 67, 2006 Va. Cir. LEXIS 79 (Lynchburg May 11, 2006).

    Void order granting second nonsuit. —

    Medical malpractice case was time barred based on the invalidity of a second nonsuit order; because the second nonsuit order was void ab initio as not compliant with the governing statute, it could no more toll the statute of limitations than it could effectively nonsuit a 2012 case. As such, there was no 6-month extension where an order was not made in accordance with the governing statute. Branch v. Augusta Health Care, Inc., 92 Va. Cir. 126, 2015 Va. Cir. LEXIS 206 (Augusta County Aug. 21, 2015).

    Absolute right to one nonsuit. —

    Because plaintiff, pursuant to § 8.01-380 , refiled his action against defendant within days of his having taken a nonsuit against defendant, plaintiff’s refiled action against defendant was within the prescribed time. Weaver v. Franklin, 2002 Va. Cir. LEXIS 273 (Newport News Sept. 18, 2002).

    Dismissal without prejudice not bar to subsequent nonsuit. —

    On appeal of a judgment of the Virginia General District Court to the Virginia Circuit Court, the rulings of the District Court were completely null and void, and an original plaintiff was provided a new trial, and was not barred from taking a nonsuit of the appeal to the Circuit Court; if the Virginia General Assembly had intended for a dismissal without prejudice to bar a plaintiff from subsequently seeking a nonsuit as a matter of right, the language of subsection B of § 8.01-380 would have reflected this intent. Joseph v. Giant Food, Inc., 61 Va. Cir. 143, 2003 Va. Cir. LEXIS 52 (Fairfax County Feb. 7, 2003).

    Motion to dismiss for lack of subject matter jurisdiction. —

    Father’s motion to dismiss a mother’s petition for child support for lack of subject matter jurisdiction was granted because the juvenile and domestic relations district court was not without jurisdiction to hear the petition, and there was no good cause to bring it before the circuit court instead; any perceived convenience for the parties did not amount to “good cause,” especially when the juvenile and domestic relations district court retained jurisdiction to hear the petition. Name Redacted by the Court, 96 Va. Cir. 393, 2017 Va. Cir. LEXIS 173 (Fairfax County Sept. 20, 2017).

    Motion for nonsuit in zoning appeals. —

    There is no conflict between §§ 15.2-2314 and 8.01-229 , as § 15.2-2314 articulates the limitations period for the initial filing of a claim arising from an adverse decision by a board of zoning appeals, whereas § 8.01-229 creates and defines the contours of a tolling of the limitations period upon the exercise of a voluntary nonsuit. Thus, § 8.01-229 applies to motions for nonsuit filed in appeals filed pursuant to § 15.2-2314. Bd. of Supervisors v. Bd. of Zoning Appeals, 71 Va. Cir. 170, 2006 Va. Cir. LEXIS 103 (Fairfax County June 23, 2006), rev'd, 275 Va. 452 , 657 S.E.2d 147, 2008 Va. LEXIS 31 (2008) (see note above).

    Motion before ruling held timely. —

    Where a county appealed from a board of zoning appeals’ decision, as the court and parties anticipated that additional actions would be taken, the matter had not been submitted to the court for decision prior to the county’s filing a motion for nonsuit. Thus, under subsection A of § 8.01-380 , the county’s motion for nonsuit was timely filed. Bd. of Supervisors v. Bd. of Zoning Appeals, 71 Va. Cir. 170, 2006 Va. Cir. LEXIS 103 (Fairfax County June 23, 2006), rev'd, 275 Va. 452 , 657 S.E.2d 147, 2008 Va. LEXIS 31 (2008) (see note above).

    Grant of nonsuit not precluded where an earlier demurrer did not dismiss the action, even though the pleadings were not amended in a timely fashion. —

    Purchaser’s motion for nonsuit in an action alleging misuse of escrow funds was granted, as the grant of a demurrer to sellers was not a final order pursuant to Va. Sup. Ct. R. 1:1, considered in conjunction with Va. Sup. Ct. R. 1:8 and 1:9, even after the purchaser failed to amend the complaint in a timely fashion, and because the matter was not submitted to the court, the purchaser was entitled to a nonsuit as of right. Min Kyu Sue v. Sung Hoon Park, 70 Va. Cir. 113, 2005 Va. Cir. LEXIS 301 (Fairfax County Dec. 28, 2005).

    No nonsuit where cross-claimant did not consent. —

    Where a cross-claim for contribution derived from an administratrix’s wrongful death action and it could not remain pending for independent adjudication by the court, the administratrix’s motion for nonsuit had to be denied where the cross-claimant did not consent to it pursuant to § 8.01-380 C. Fowler v. Winchester Med. Ctr., Inc., 59 Va. Cir. 216, 2002 Va. Cir. LEXIS 344 (Winchester July 2, 2002), aff'd, 266 Va. 131 , 580 S.E.2d 816, 2003 Va. LEXIS 68 (2003).

    Punitive damages. —

    As punitive damages could not be an “action,” capable of submission to a court for decision, and a nonsuit was filed before the jury retired from the bar, pursuant to subsection A of § 8.01-380 , an individual had a right to assert punitive damages again in a refiled action against a publisher. Hawkins v. Martin, 59 Va. Cir. 236, 2002 Va. Cir. LEXIS 348 (Richmond July 9, 2002).

    Effect of nonsuit. —

    Although a client nonsuited a legal malpractice action under § 8.01-380 , the lawyers’ demurrer had to be overruled because subdivision E 3 of § 8.01-229 tolled the time for filing a second suit; since the client sufficiently pleaded a cause of action for legal negligence in the second suit and the client’s addition of a breach of contract count involved the same parties on the same cause of action, the lawyers’ plea in bar was also overruled. Odeneal v. Thompson, 63 Va. Cir. 71, 2003 Va. Cir. LEXIS 182 (Fairfax County Aug. 6, 2003).

    Trial court found that the attorney and law firm’s theories of res judicata, collateral estoppel, judicial estoppel, and accord and satisfaction advanced in their plea in bar did not bar the client’s present action against them for professional negligence, breach of contract, and breach of fiduciary duty based on a consent decree entered in a prior action where the attorney and law firm collected unpaid legal fees the client owed to them and the client’s counterclaim was nonsuited; the effect of the nonsuit was that no ruling was made on the merits of the counterclaim, which meant the trial court could consider the merits of the client’s current claims. Russell v. Hartsoe, 2006 Va. Cir. LEXIS 219 (Fairfax County Nov. 9, 2006).

    Decedent’s personal representative was entitled to recommence a personal injury action against a motorist under § 8.01-229 because the decedent’s first and second complaints were voluntarily nonsuited under § 8.01-380 and the personal representative brought the third action within six months of the nonsuit order. Meador v. Cray, 79 Va. Cir. 286, 2009 Va. Cir. LEXIS 85 (Roanoke County Sept. 15, 2009).

    Because a mother nonsuited a petition for child support in the juvenile and domestic relations district court, her current petition for child support was not before the circuit court on an appeal; therefore, the circuit court did not have jurisdiction over the petition in that manner, and the filing of the petition in the circuit court was not an appropriate proceeding because child support was not incidental to the custody trial the circuit court would hear. Name Redacted by the Court, 96 Va. Cir. 393, 2017 Va. Cir. LEXIS 173 (Fairfax County Sept. 20, 2017).

    Refiling action in circuit court. —

    Because a bank had non-suited in a collection action on a credit card in a district court, subsection A of § 8.01-380 required that it bring a new action on two cards in the district court; however, good cause for allowing it to refile in circuit court was shown given that one trial in the circuit court on both cards would limit expenditures for the parties, witnesses, and the courts. Am. Express Centurion Bank v. Li Tsai, 73 Va. Cir. 358, 2007 Va. Cir. LEXIS 92 (Fairfax County June 5, 2007).

    Failure to assert good cause for nonsuit. —

    Because an executive brought a federal court action for malicious prosecution to a state court without asserting that the original claim was nonsuited for lack of jurisdiction, improper venue, or other good cause under § 8.01-380 , the case did not fall within the tolling provisions of subdivision E 3 of § 8.01-229 ; thus, the case was dismissed as time-barred under § 8.01-248 . Smith v. Sparshott, 2006 Va. Cir. LEXIS 133 (Fairfax County July 18, 2006).

    Whether a pleading is titled “counterclaim” or “cross-bill” is irrelevant in determining whether it bars a plaintiff’s request for a nonsuit under subsection D of § 8.01-380 . Parsch v. Massey, 71 Va. Cir. 209, 2006 Va. Cir. LEXIS 249 (Charlottesville June 28, 2006).

    Non-counterclaiming defendants are not barred from a nonsuit even though counterclaims filed by other defendants are incapable of independent adjudication. Parsch v. Massey, 71 Va. Cir. 209, 2006 Va. Cir. LEXIS 249 (Charlottesville June 28, 2006).

    As both plaintiffs’ complaint and some counterclaims filed by some defendants turned on the legitimacy of a disputed loan, those counterclaims were incapable of independent adjudication. Therefore, pursuant to subsection D of § 8.01-380 , plaintiffs were not entitled to a nonsuit as to those defendants, since they had not consented to it. Parsch v. Massey, 71 Va. Cir. 209, 2006 Va. Cir. LEXIS 249 (Charlottesville June 28, 2006).

    Limitations on right of nonsuit. —

    Where the trial court was acting as a reviewing court, § 8.01-380 governing nonsuits did not apply and, thus, the subdivision E 3 of § 8.01-229 tolling time for nonsuited cases also did not apply. As a result, dismissal of the appeal filed by the limited liability companies, in their case refiled after they took a voluntary nonsuit from the denial of their applications regarding licensing, was warranted. Joy House Senior Homes, L.C. v. Jones, 75 Va. Cir. 140, 2008 Va. Cir. LEXIS 36 (Fairfax County Mar. 28, 2008).

    Where plaintiffs sought a non-suit under § 8.01-380 against defendants who had filed counterclaims, by answering the counterclaims without objecting to their legal sufficiency or untimeliness, plaintiffs waived their ability to do so. Parsch v. Massey, 71 Va. Cir. 209, 2006 Va. Cir. LEXIS 249 (Charlottesville June 28, 2006).

    Grandparents did not have an absolute right of nonsuit, and the circuit court could consider the issue of attorney fees previously reserved, because the matter was submitted to the circuit court for decision; by hearing argument of counsel, sustaining the parents’ demurrer, granting additional time to file an amended petition and reserving the issue of attorney fees, the action had been submitted to the circuit court for decision. Miller v. Miller, 97 Va. Cir. 73, 2017 Va. Cir. LEXIS 300 (Loudoun County Oct. 10, 2017).

    Party who appeals a claim from general district court, after losing a motion to strike and/or the entry of a final judgment, may nonsuit her claim in circuit court but must wait until the rulings of the general district court are annulled; that is, a party may not nonsuit in circuit court a claim appealed from general district court until the trial de novo on the merits commences. Mee Sook Kim v. Giant of Md., LLC, 100 Va. Cir. 144, 2018 Va. Cir. LEXIS 338 (Fairfax County Oct. 4, 2018).

    Circuit court proceedings following an appeal from general district court are not “blank slates”; consequently, following an appeal from general district court, the circuit court cannot grant a nonsuit as a matter of course as it would if the Court were exercising original jurisdiction, and regard must be ascribed to the decisions of the general district court. Mee Sook Kim v. Giant of Md., LLC, 100 Va. Cir. 144, 2018 Va. Cir. LEXIS 338 (Fairfax County Oct. 4, 2018).

    Because a trial de novo had not yet commenced, plaintiff could not suffer a nonsuit as a matter of right; the general district court’s rulings were not yet annulled and thus, remained conclusive on the parties, and plaintiff had to wia until her trial began before suffering a nonsuit. Mee Sook Kim v. Giant of Md., LLC, 100 Va. Cir. 144, 2018 Va. Cir. LEXIS 338 (Fairfax County Oct. 4, 2018).

    Because when the hearing on a railway company’s motion to dismiss a personal representative’s wrongful death suit came to a close, with the personal representative not having made a nonsuit motion and both parties having yielded the issue to the court for consideration and decision, at the conclusion of the hearing the personal representative was barred from taking a nonsuit at the adjournment of that hearing. Stacy v. Norfolk Southern Ry., 104 Va. Cir. 293, 2020 Va. Cir. LEXIS 35 (Roanoke Mar. 26, 2020).

    Tolling of limitations period. —

    Doctrine of equitable tolling was not applicable because an employer had not misled an employee by signing a nonsuit order without objection, and a mistake in calculating the limitations period was not a defective pleading; the employee was entitled to one nonsuit, and it was irrelevant whether the employer objected. John v. Salisbury Towing Corp., 85 Va. Cir. 368, 2012 Va. Cir. LEXIS 180 (Norfolk Sept. 17, 2012).

    Withdrawal of nonsuit. —

    Homeowners were not entitled to withdraw their nonsuit and to request leave to file an amended complaint because it was an attempt to avoid the lenders’ motion for sanctions, and the homeowners could not use their motion as a procedural device to dodge the issue of whether their attorney’s actions violated § 8.01-271.1 .Minix v. Wells Fargo Bank, 81 Va. Cir. 130, 2010 Va. Cir. LEXIS 115 (Fairfax County Aug. 24, 2010).

    Costs awarded. —

    Moving companies were not entitled to reimbursement of the non-refundable expenses paid to their expert witness because they were incurred months before the scheduled trial and were not incurred solely by reason of the opposing party’s failure to give them notice at least seven days prior to trial. However, the companies were entitled to deposition costs related to the companies’ motion for sanctions. Bureau v. Jones, 2019 Va. Cir. LEXIS 1194 (Norfolk Dec. 27, 2019).

    Costs not awarded. —

    Because an injury plaintiff could not have taken a nonsuit prior to trial due to the presence of defendant’s third-party claim for indemnity and contribution, defendant was not entitled to recover its expert costs under subsection C of § 8.01-380 when plaintiff took a nonsuit during trial after some of its expert’s opinions were excluded. Mohlmann v. Republic Servs. of Va., LLC, 81 Va. Cir. 293, 2010 Va. Cir. LEXIS 135 (Fairfax County Nov. 1, 2010).

    CASE NOTES

    Prevailing party. —

    Parties were not entitled to attorneys’ fees and costs, which stemmed from litigation associated with the proposed sale of an LLC, because neither the LLC nor its member was the prevailing party where they both moved for a nonsuit of their claims, and the clear intent of the operating agreement was that a party was a prevailing party in litigation only if a court granted relief on the merits, which did not happen. MAMA/TMU, LLC v. Miller, 95 Va. Cir. 228, 2017 Va. Cir. LEXIS 27 (Norfolk Mar. 2, 2017).

    § 8.01-381. What jury may carry out.

    No pleadings may be carried from the bar by the jury. Exhibits may, by leave of court, be so carried by the jury. Upon request of any party, the court shall instruct the jury that they may request exhibits for use during deliberations. Exhibits requested by the jury shall be sent to the jury room or may otherwise be made available to the jury.

    History. Code 1950, § 8-221; 1977, c. 617; 1992, c. 495.

    REVISERS’ NOTE

    Former § 8-221 has been altered to provide that no pleadings may be taken to the jury room but that exhibits may be so taken with the court’s approval.

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 56.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Past recollection recorded may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. Scott v. Greater Richmond Transit Co., 241 Va. 300 , 402 S.E.2d 214, 7 Va. Law Rep. 1723, 1991 Va. LEXIS 30 (1991).

    Handwriting exemplars. —

    Once handwriting exemplars were admitted into evidence, the trial judge had the discretion to allow the jury to examine them in the jury room. He did not abuse his discretion by doing so. Lynn v. Commonwealth, No. 0129-93-3 (Ct. of Appeals Jan. 17, 1995).

    Defendant’s recorded out-of-court statement held an “exhibit.” —

    An out-of-court statement, whether written or recorded, which is introduced into evidence, is an “exhibit.” Therefore, the jury was entitled to take murder defendant’s recorded statement, which was introduced into evidence as an exhibit, into the jury room. Pugliese v. Commonwealth, 16 Va. App. 82, 428 S.E.2d 16, 9 Va. Law Rep. 1057, 1993 Va. App. LEXIS 56 (1993).

    Trial court did not err by making defendant’s videotaped confession, previously shown to jury at trial, available to jury during deliberations. Cull v. Commonwealth, No. 2202-98-2 (Ct. of Appeals Mar. 28, 2000).

    Video tape of defendant’s confession properly allowed during deliberations. —

    Circuit court did not abuse its discretion in allowing the jury to take a video tape of defendant’s confession into the jury room during deliberations where it did not result in undue emphasis on defendant’s confession and an investigator’s testimony regarding his interrogation of defendant because the video tape was an “exhibit” available to the jury during the deliberations under § 8.01-381 , and the fact that jurors might have put emphasis on certain evidence, such as the video tape, was simply part of what they did when weighing and considering the evidence. Jackson v. Commonwealth, 267 Va. 178 , 590 S.E.2d 520, 2004 Va. LEXIS 8, cert. denied, 543 U.S. 891, 125 S. Ct. 168, 160 L. Ed. 2d 155, 2004 U.S. LEXIS 5213 (2004).

    Possible overemphasis by jury not grounds for withholding evidence. —

    The risk that a jury may overemphasize a videotaped statement by the accused if permitted to view such statement in the jury room exists when a jury peruses any exhibit; nothing in the Virginia statutes or case law requires the trial judge to supervise the jury’s review of evidence to prevent overemphasis and the fact that a jury may dwell upon or emphasize any evidence, whether testimony or exhibits, is within the jury’s purview in weighing and considering the evidence. Cull v. Commonwealth, 2000 Va. App. LEXIS 237 (Va. Ct. App. Mar. 28, 2000).

    Harmless error. —

    When defendant claimed that he was guilty only of second-degree murder, not first-degree murder, any violation of § 8.01-381 by not allowing the jury to replay defendant’s videotaped confession while deliberating was harmless error under § 8.01-678 . The facts that defendant entered his wife’s room and retrieved a loaded gun from a closet, fired twice at her at point-blank range, buried her in a makeshift grave, lied about her whereabouts, and admitted that he killed her because he did not want to take any more verbal harassment from her were irrefutable proof of his specific intent to kill; replaying the videotape would have added little to the deliberative process, given the Commonwealth’s stipulation of its narrative content, the jury’s previous viewing of it, the jury’s in-court review of an agreed transcript, and the nearly identical evidence presented from an investigator. Kirby v. Commonwealth, 50 Va. App. 691, 653 S.E.2d 600, 2007 Va. App. LEXIS 442 (2007).

    II.Decisions Under Prior Law.

    Editor’s note.

    The documents or statements must have been introduced in evidence. —

    The inference from the evidence that the statements carried to the jury room were introduced in evidence was irresistible, and it followed that there could be no valid objection to the jury carrying them into the jury room. Ballard v. Commonwealth, 156 Va. 980 , 159 S.E. 222 , 1931 Va. LEXIS 253 (1931).

    The plaintiff has no right under this section to demand that papers shown to a witness for the purpose of identifying the signature of a defendant thereto but which were never introduced in evidence, shall be allowed to go to the jury for their inspection after the conclusion of the evidence and arguments. Wilson v. Wooldridge, 118 Va. 209 , 86 S.E. 872 , 1915 Va. LEXIS 143 (1915).

    Depositions. —

    A deposition which has been read to the jury may be taken with them in their retirement if what is objectionable in it has been erased. Hansbrough v. Stinnett, 66 Va. (25 Gratt.) 495, 1874 Va. LEXIS 75 (1874).

    § 8.01-382. Verdict, judgment or decree to fix period at which interest begins; final order; judgment or decree for interest.

    In any Administrative Process Act (§ 2.2-4000 et seq.) action or action at law or suit in equity, the final order, verdict of the jury, or if no jury the judgment or decree of the court, may provide for interest on any principal sum awarded, or any part thereof, and fix the period at which the interest shall commence. The final order, judgment or decree entered shall provide for such interest until such principal sum be paid. If a final order, judgment or decree be rendered which does not provide for interest, the final order, judgment or decree awarded or jury verdict shall bear interest at the judgment rate of interest as provided for in § 6.2-302 from its date of entry or from the date that the jury verdict was rendered. Notwithstanding the provisions of this section, any judgment entered for a sum due under a negotiable instrument, as defined by § 8.3A-104 , shall provide for interest on the principal sum in accordance with § 8.3A-112 at the rate specified in the instrument. If no such rate is specified, interest on the principal sum shall be at the judgment rate provided in § 6.2-302 . Final orders may be recorded, enforced, and satisfied as orders or decrees of a circuit court upon certification of such orders by the agency head or his designee.

    History. Code 1950, § 8-223; 1964, c. 219; 1974, c. 172; 1975, c. 448; 1977, c. 617; 1979, c. 501; 1997, c. 551; 2004, c. 646; 2008, c. 219; 2009, c. 797.

    REVISERS’ NOTE

    Former § 8-223 has been rewritten to place the court and the jury on the same footing when it comes to providing for interest on the principal sum awarded in the judgment or decree. Also, § 8.01-382 applies to all actions and suits, and thereby expands the former section’s application which was limited to actions on contract, tort, and suits in equity. Finally, this section provides that the interest awarded shall become part of the judgment or decree.

    Editor’s note.

    Effective October 1, 2010, “§ 6.2-302 ” was substituted for “§ 6.1-330.54,” to conform to the recodification of Title 6.1 by Acts 2010, c. 794.

    The 2004 amendments.

    The 2004 amendment by c. 646 substituted “or jury verdict shall bear interest at the judgment rate of interest as provided for in § 6.1-330.54 from its date of entry or from the date that the jury verdict” for “shall bear interest from its date of entry, at the rate as provided in § 6.1-330.54, and judgment or decree entered accordingly; provided, if the judgment entered in accordance with the verdict of a jury does not provide for interest, interest shall commence from the date that the verdict” and inserted “judgment” preceding “rate provided.”

    The 2008 amendments.

    The 2008 amendment by c. 219 inserted “Administrative Process Act (§ 2.2-4000 et seq.) action or” near the beginning of the first sentence, inserted “final order” preceding “judgment” once in the second sentence and twice in the third sentence, and made related changes.

    The 2009 amendments.

    The 2009 amendment by c. 797 added the last sentence.

    Law Review.

    For survey of Virginia commercial law for the year 1972-1973, see 59 Va. L. Rev. 1426 (1973).

    For comment, “Insurer’s liability for prejudgment interest: A modern approach,” see 17 U. Rich. L. Rev. 617 (1983).

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Damages, §§ 32, 47.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    “Judgment” defined. —

    The word “judgment,” when used in the context of this section, contemplates a debt that is presently due and owing, not a debt due and payable in the future. Pledger v. Pledger, 6 Va. App. 627, 371 S.E.2d 43, 5 Va. Law Rep. 169, 1988 Va. App. LEXIS 80 (1988).

    General comment. —

    This section states that if a judgment be rendered which does not provide for interest, then the interest shall commence from the date of entry. It also permits the court to provide for interest and fix the period at which the interest shall commence. Hayes v. Hayes, No. 2038-96-4 (Ct. of Appeals June 3, 1997).

    Construction with other law. —

    Section 15.1-549 (see now § 15.2-1244 ) prohibits a county from paying interest on a judgment. This section simply had no application here. The supreme court had to apply former § 15.1-549 in this appeal because it was a statute of specific application which took precedence over this section, a statute of general application. County of Fairfax v. Century Concrete Servs., Inc., 254 Va. 423 , 492 S.E.2d 648, 1997 Va. LEXIS 117 (1997).

    Version of § 20-107.3 in effect at time divorce matter was commenced did not expressly authorize or prohibit application of this section requiring interest on judgments to monetary awards. Therefore husband was precluded from recovering interest on equitable distribution award. Hird v. Gaynor, 2000 Va. App. LEXIS 205 (Va. Ct. App. Mar. 21, 2000).

    Where plaintiff partner successfully sued defendant partner for unjust enrichment, he was awarded damages plus interest pursuant to §§ 6.1-330.53 [now § 6.2-301 ] and 8.01-382 , consisting of his initial and subsequent investments, but not profits that defendant enjoyed from those payments as plaintiff was not entitled to a disgorgement of the profits, nor was it inequitable for defendant to retain them. The initial investment was not barred by the three-year statute of limitations that was applicable to oral contracts under § 8.01-246 because, given that there was no agreed upon repayment date of an alleged obligation to pay money, it was deemed payable on demand; thus, the statute of limitations accrued from the time that the money was transferred from plaintiff to defendant, and, as the unjust enrichment did not occur until one year before filing, any timeliness issues were dismissed. Clarke v. Newell, No. 1:05cv1013, 2006 U.S. Dist. LEXIS 74251 (E.D. Va. Oct. 12, 2006).

    As a former husband’s failure to pay his former wife and children’s medical insurance expenses, which were in the nature of spousal and child support, created a judgment by operation of law under subdivision 12 of § 20-60.3 (now see subdivision 14) as these expenses came due, pursuant to § 8.01-382 , the wife was entitled to prejudgment interest on these amounts. Whitney v. Whitney, 2007 Va. App. LEXIS 203 (Va. Ct. App. May 15, 2007).

    Virginia law governs award of prejudgment interest in diversity case. —

    See Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d 614, 1999 U.S. App. LEXIS 593 (4th Cir. 1999).

    Purpose of prejudgment interest. —

    The award of prejudgment interest is to compensate a plaintiff for the loss sustained by not receiving the amount to which he was entitled at the time he was entitled to receive it, and such award is considered necessary to place the plaintiff in the position he would have occupied if the party in default had fulfilled his obligated duty. Walker v. Pfeiffer, 2000 Va. App. LEXIS 506 (Va. Ct. App. July 11, 2000).

    Prejudgment interest is permitted by statute, and is designed to compensate the plaintiff who has been without relief for an extended period of time. Gill v. Rollins Protective Servs. Co., 836 F.2d 194, 1987 U.S. App. LEXIS 16617 (4th Cir. 1987).

    Postjudgment interest is not an element of damages, but is a statutory award for the delay in the payment of money actually due. Ragsdale v. Ragsdale, 30 Va. App. 283, 516 S.E.2d 698, 1999 Va. App. LEXIS 452 (1999).

    Distinction between prejudgment and postjudgment interest. —

    By its express language, this section draws an important distinction between prejudgment and postjudgment interest. This section provides for the discretionary award of prejudgment interest by the trier of fact, who may provide for such interest and fix the time of its commencement. The accrual of postjudgment interest, however, is mandatory; the entire amount of a judgment or decree shall bear interest from its date of entry. Dairyland Ins. Co. v. Douthat, 248 Va. 627 , 449 S.E.2d 799, 1994 Va. LEXIS 158 (1994).

    Postjudgment interest is extra-contractual obligation. —

    Although the insurer’s duty to pay damages is a contractual liability, enforced by the insurance statutes, the duty to pay postjudgment interest is an extra-contractual obligation that is imposed as a statutory penalty for failure to pay a liquidated debt when due. Dairyland Ins. Co. v. Douthat, 248 Va. 627 , 449 S.E.2d 799, 1994 Va. LEXIS 158 (1994).

    No prejudgment interest duty. —

    Because no such obligation is imposed by this section or any other statute, an insurer has no duty to pay prejudgment interest in excess of policy limits, absent a contractual provision to the contrary. Dairyland Ins. Co. v. Douthat, 248 Va. 627 , 449 S.E.2d 799, 1994 Va. LEXIS 158 (1994).

    Prejudgment interest should have been awarded from date of loss not date of suit. —

    Trial court erred in calculating prejudgment interest from the date suit was filed rather than the date the loss was incurred which was the date the wife took out a loan to ensure retention of the wife’s property that the husband put up as collateral for a loan by forging the wife’s name on necessary documents. Hardey v. Metzger, 2008 Va. App. LEXIS 409 (Va. Ct. App. Aug. 26, 2008).

    Accrual date for prejudgment interest. —

    In a case in which a district court determined that the loss payee on two insurance policies was entitled to prejudgment interest at the rate of six percent per annum, the appropriate date from which prejudgment interest would accrue was the date that the insurer decided to deny coverage. On that date, more than a year of investigation and time to review the policies’ terms, the insurer made its determination; from that date forward, it was appropriate for the insurer to bear the consequences of its conclusion. Wells Fargo Equip. Fin., Inc. v. State Farm Fire & Cas. Co., 823 F. Supp. 2d 364, 2011 U.S. Dist. LEXIS 115533 (E.D. Va. 2011).

    Where the Chapter 7 trustee sought to recover from defendant amounts allegedly due to debtor pursuant to a contract, the trustee was entitled to prejudgment interest at the contract rate of 1.5% per month, such interest beginning to accrue on the date that was fifteen days from the date of the final invoice. Robinson v. McMurtrie (In re Peak 3 Constr., LLC), No. 17-34379-KLP, No. 18-03046-KLP, 2020 Bankr. LEXIS 833 (Bankr. E.D. Va. Mar. 31, 2020).

    Complete discretion with trial court. —

    Whether prejudgment interest should be awarded under this section is a matter within the sound discretion of the district court. Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d 614, 1999 U.S. App. LEXIS 593 (4th Cir. 1999).

    This statute has been interpreted as granting courts complete discretion in awarding prejudgment interest. Continental Ins. Co. v. City of Va. Beach, 908 F. Supp. 341, 1995 U.S. Dist. LEXIS 17890 (E.D. Va. 1995).

    Because plaintiff insurance company had been without its $1 million contribution for over a year, and nothing suggested that it would have been inequitable to require defendants to pay prejudgment interest on the liquidated amount to make the insurance company whole, the court exercised its discretion to award the insurance company prejudgment interest at a rate of 6 percent accruing from the date when the insurance company’s contribution to the global settlement was transferred from its account. Admiral Ins. Co. v. Ace Am. Ins. Co., No. 5:08cv00055, 2009 U.S. Dist. LEXIS 37587 (W.D. Va. May 1, 2009).

    Trial court did not abuse its discretion in refusing to award prejudgment interest to truck driver in his suit against driver of automobile for contribution, for while the amount of the contribution owed by automobile driver was ascertainable from the date of the verdict in the wrongful death litigation, a legitimate controversy existed as to whether driver’s negligence had been resolved in that litigation, and furthermore, as recognized by the trial court, the delay in resolving that issue was not attributable to the parties, but involved, among other things, the necessity of reassigning the case due to the death of the original trial judge. Reid v. Ayscue, 246 Va. 454 , 436 S.E.2d 439, 10 Va. Law Rep. 477, 1993 Va. LEXIS 153 (1993).

    Postjudgment interest mandatory as to amounts due under contract. —

    To the extent a trial court ordered a former husband to pay obligations imposed by the parties’ separation agreement, it had no discretion under § 8.01-382 to deny or postpone the accrual of postjudgment interest on those amounts. Whitney v. Whitney, 2007 Va. App. LEXIS 203 (Va. Ct. App. May 15, 2007).

    Postjudgment interest mandatory. —

    Because post-judgment interest for all money judgments was mandatory, the court found that postjudgment interest shall accrue at the federal judgment rate set forth in 28 U.S.C.S. § 1961 from the date of entry of the separate order to be entered consistent with the findings by the court. James River Petroleum, Inc. v. Dickson (In re Dickson), No. 19-70934-SCS, No. APN 19-07013-SCS, 2020 Bankr. LEXIS 2591 (Bankr. E.D. Va. Sept. 29, 2020).

    Award of interest upheld. —

    Section 8.01-382 gave the chancellor the discretionary authority to determine whether the Commonwealth was entitled to prejudgment interest in a case imposing a constructive trust, and to fix the date from which such interest was due; the chancellor’s decision awarding interest on the monetary portion of the judgment from the date of his letter opinion, which effectively provided prejudgment interest for a portion of the period, was not an abuse of his discretionary authority under the statute. Tauber v. Commonwealth ex rel. Kilgore, 263 Va. 520 , 562 S.E.2d 118, 2002 Va. LEXIS 62, cert. denied, 537 U.S. 1002, 123 S. Ct. 496, 154 L. Ed. 2d 398, 2002 U.S. LEXIS 8117 (2002).

    It was not error for the trial court to award the wife interest, under § 8.01-382 , on her monetary award under the equitable distribution, if that award was not timely paid, as such an award was within the court’s discretion and authorized by subsection D of § 20-107.3 .Buchanan v. Buchanan, 2003 Va. App. LEXIS 494 (Va. Ct. App. Sept. 30, 2003).

    Trial court did not err in ordering that the interest on the settlement payments accrued from the date of entry of the divorce decree; as the settlement indicated that time was of the essence, the husband could not indefinitely delay the refinancing of the properties and the payment to the wife of her settlement and the date of entry of the final decree was a reasonable deadline for the conclusion of the payments. Klein v. Klein, 2003 Va. App. LEXIS 621 (Va. Ct. App. Dec. 2, 2003).

    Time of insolvency, rather than the time of demand, was the appropriate time to begin prejudgment interest, where the borrower (as president and sole shareholder of the corporate lender), was in complete control of whether or not the corporation made any demand, the corporation was recording interest from the borrower’s loans as taxable income all along, the recorded interest income on the loans to the borrower favorably affected the corporation’s credit-worthiness during its insolvency, and the corporation was paying interest on bank loans at an interest rate higher than the judgment rate of interest (thus it suffered a substantial loss by lending money to the borrower). Lambert v. Callahan, 347 Bankr. 508, 2006 U.S. Dist. LEXIS 57034 (W.D. Va. 2006).

    Because the purpose of § 8.01-382 , the prejudgment interest statute, was to fully compensate the plaintiff and the award of prejudgment interest was within the sound discretion of the court, the court upheld the bankruptcy court’s method of awarding interest based on the year-end balances, rather than on the final principal sum. Lambert v. Callahan, 347 Bankr. 508, 2006 U.S. Dist. LEXIS 57034 (W.D. Va. 2006).

    Where a company was found liable to a bankruptcy estate for unpaid rent, and the company enjoyed the use of funds that were due as rent rather than placing the rent in escrow as represented by the company, prejudgment interest was warranted upon each rent payment not made from the first day of the month immediately following the month in which such rent accrued until the date of judgment. Callahan v. Mountain Empire Oil Co. (In re Lambert Oil Co.), No. 03-01183-WSA, No. 04-07135, 2006 Bankr. LEXIS 4641 (Bankr. W.D. Va. Nov. 24, 2006), aff'd, 372 Bankr. 265, 2007 U.S. Dist. LEXIS 53320 (W.D. Va. 2007).

    Because nothing in an insurance policy precluded, much less even addressed, an insurer’s paying prejudgment interest in excess of its coverage obligation, the trial court had discretion to impose prejudgment interest under § 8.01-382 on an award in favor of a mortgage company for money the insurer held from the insured company in breach of the policy. Suntrust Mortg., Inc. v. United Guar. Residential Ins. Co., 809 F. Supp. 2d 485, 2011 U.S. Dist. LEXIS 94363 (E.D. Va. 2011).

    In a breach of contract action regarding a license for the use of copyrighted tattoo designs, the copyright owner was entitled to prejudgment interest. Tattoo Art, Inc. v. TAT Int'l, LLC, 794 F. Supp. 2d 634, 2011 U.S. Dist. LEXIS 70274 (E.D. Va. 2011).

    Discretion of jury. —

    Under Virginia law, the award of prejudgment interest is a matter within the discretion of the jury. Al-Abood v. El-Shamari, 217 F.3d 225, 2000 U.S. App. LEXIS 15437 (4th Cir. 2000).

    District court also correctly rejected plaintiffs’ allegation that the attorney violated the Fair Debt Collection Practices Act by seeking prejudgment interest; the complaint was fairly read as seeking only prejudgment interest on the amounts past due at the time of judgment, and any risk that the nursing home would have been able to recover damages to which it was not entitled (i.e., prejudgment interest on amounts that were not yet due and payable) was mitigated by the fact that a decision to award such interest in the first instance is determined at the discretion of a presumably competent and reasonable trier of fact. McLean v. Ray, 488 Fed. Appx. 677, 2012 U.S. App. LEXIS 14857 (4th Cir. 2012), cert. denied, 568 U.S. 1144, 133 S. Ct. 985, 184 L. Ed. 2d 762, 2013 U.S. LEXIS 947 (2013).

    No exception for bona fide legal disputes. —

    There is no language in the statute which provides that cases containing bona fide legal disputes are beyond the reach of the statute, and no Virginia cases mention a bona fide legal dispute exception to the statute. Gill v. Rollins Protective Servs. Co., 836 F.2d 194, 1987 U.S. App. LEXIS 16617 (4th Cir. 1987).

    Interest on permanent financing commitment fee. —

    In a suit brought by a developer against a lender alleging that the lender breached an oral commitment to provide construction financing for construction of a condominium project, the federal district court, which included as an element of damages for the lender’s breach the fee which the developer paid to the lender for the permanent financing commitment, did not abuse its discretion in not awarding interest on the permanent financing commitment fee. Coastland Corp. v. Third Nat'l Mtg. Co., 611 F.2d 969, 1979 U.S. App. LEXIS 9383 (4th Cir. 1979).

    Accrual of interest on property settlement. —

    Where a property settlement agreement specified that the wife’s portion of the husband’s retirement would be entered as a “judgment” and no money was due until the husband either retired or received a lump sum payment, interest did not begin to accrue from the date of final decree of the divorce judgment, but rather, from the date money due was not paid. Pledger v. Pledger, 6 Va. App. 627, 371 S.E.2d 43, 5 Va. Law Rep. 169, 1988 Va. App. LEXIS 80 (1988).

    Interest permitted where claim is unliquidated. —

    An award of interest is permissible, even if the claim is unliquidated, so long as there is a rational basis in the evidence upon which to fix the date when interest should begin to run. Nor is there an exception in the language of the statute placing beyond its reach cases in which there exist bona fide legal disputes. McClung v. Smith, 870 F. Supp. 1384, 1994 U.S. Dist. LEXIS 18453 (E.D. Va. 1994), aff'd in part, 89 F.3d 829, 1996 U.S. App. LEXIS 34515 (4th Cir. 1996).

    Award of post-judgment interest on pre-judgment interest was erroneous. —

    Award of post-judgment interest on pre-judgment interest to the joint venture in its breach of contract case in both trials was erroneous. The relevant statute, § 8.01-382 , did not permit such an award because it allowed interest only on the “principal sum awarded.” Upper Occoquan Sewage Auth. v. Blake Constr. Co., 275 Va. 41 , 655 S.E.2d 10, 2008 Va. LEXIS 17 (2008).

    Award of prejudgment interest allowed. —

    District court did not abuse its discretion in awarding the seller prejudgment interest at the rate of 9% on the seller’s breach of contract claim against the buyer. E. I. DuPont de Nemours & Co. v. Park, 42 Fed. Appx. 605, 2002 U.S. App. LEXIS 15433 (4th Cir. 2002).

    In a case in which the loss payee on two insurance policies sought prejudgment interest, any prejudicial impact on the insurer’s right to dispute coverage was outweighed by considerations favoring the loss payee. The loss payee had been denied both the benefit of the insurance proceeds and the collateral, and both the amount of the disputed funds and the length of time the loss payee had been without their benefit was significant. Wells Fargo Equip. Fin., Inc. v. State Farm Fire & Cas. Co., 823 F. Supp. 2d 364, 2011 U.S. Dist. LEXIS 115533 (E.D. Va. 2011).

    Prejudgment interest not warranted. —

    Court declined to exercise its discretion to award plaintiff prejudgment interest because the litigation had not been overly protracted. James River Petroleum, Inc. v. Dickson (In re Dickson), No. 19-70934-SCS, No. APN 19-07013-SCS, 2020 Bankr. LEXIS 2591 (Bankr. E.D. Va. Sept. 29, 2020).

    Complete discretion with trial court. —

    Pursuant to § 8.01-382 , a former wife was not entitled as a matter of law to prejudgment interest on expenses that her former husband was ordered to pay pursuant to the parties’ separation agreement, as they were not in the nature of spousal or child support. Whitney v. Whitney, 2007 Va. App. LEXIS 203 (Va. Ct. App. May 15, 2007).

    Court did not abuse its discretion in failing to award prejudgment interest to wife on her share of husband’s medical practice before the entry of the court’s amended final decree of divorce. Husband had no obligation to pay wife her share of the practice until the court made its equitable distribution award and ordered him to make payments in accordance with it. Ragsdale v. Ragsdale, 30 Va. App. 283, 516 S.E.2d 698, 1999 Va. App. LEXIS 452 (1999).

    No award of interest. —

    The trial court specified in the final decree that it was not awarding interest on the monetary award; since the trial court “ordered otherwise” for purposes of § 20-107.3 , the interest award provisions of this section do not apply and the wife was not entitled to interest on her share of the marital estate. Shackelford v. Shackelford, 39 Va. App. 201, 571 S.E.2d 917, 2002 Va. App. LEXIS 678 (2002).

    Trial court did not err in failing to award a wife post-judgment interest on her distribution from a husband’s retirement benefits as § 8.01-382 applied, unless the trial court ordered otherwise; the trial court’s order specifically denied the requested interest on the indemnification sums, thereby “ordering otherwise” in accordance with § 20-107.3 .Poziombke v. Poziombke, 2006 Va. App. LEXIS 61 (Va. Ct. App. Feb. 14, 2006).

    Former husband wrote all the employment checks to his former wife that were required by the parties’ separation agreement, but she did not cash them because she objected to an inscription on the checks stating “independent contractor.” Under these circumstances, the trial judge did not abuse his discretion by declining to award prejudgment interest on the principal sum pursuant to § 8.01-382 . Concannon v. Gladstone, 2007 Va. App. LEXIS 192 (Va. Ct. App. May 8, 2007).

    Contractor was not entitled to prejudgment interest as: (1) § 33.1-387 [now § 33.2-1103 ] authorized the contractor’s civil action only on the portion of the administrative claim denied by the Virginia Department of Transportation; (2) subsection A of § 33.1-386 [now § 33.2-1100 ] authorized an administrative claim, but limited it to a recovery of costs and expenses under the contract, and did not address prejudgment interest on contractually recoverable costs and expenses; (3) § 8.01-382 , did not expressly or by necessary implication apply to the Commonwealth; and (4) the statutory predecessors to § 8.01-382 existed when it was held no court had authorized prejudgment interest claims against the state itself. Commonwealth v. AMEC Civil, LLC, 54 Va. App. 240, 677 S.E.2d 633, 2009 Va. App. LEXIS 278 (2009), aff'd in part and rev'd in part, 280 Va. 396 , 699 S.E.2d 499, 2010 Va. LEXIS 230 (2010).

    Where claimant asserted a claim for unpaid construction services, making claimant whole required no more than the awarded damages and awarding prejudgment interest was not appropriate because there was a substantial and bona fide dispute regarding debtor’s liability for the renovations. In re Reed, 624 Bankr. 155, 2020 Bankr. LEXIS 3440 (Bankr. E.D. Va. 2020).

    II.Decisions Under Prior Law.

    Editor’s note.

    The purpose of this section is that interest may be allowed when its allowance appears necessary to compensate the plaintiff adequately, i.e., to make him whole; or withheld when its allowance is not necessary to accomplish such purpose. City of Danville v. C & O Ry., 34 F. Supp. 620, 1940 U.S. Dist. LEXIS 2615 (D. Va. 1940).

    This section changes the common law and permits the jury or the court to allow interest on the verdict or judgment. Doyle & Russell, Inc. v. Welch Pile Driving Corp., 213 Va. 698 , 194 S.E.2d 719, 1973 Va. LEXIS 211 (1973).

    Its language is permissive. Whether to allow interest is left to the sound discretion of the jury or trial court. Doyle & Russell, Inc. v. Welch Pile Driving Corp., 213 Va. 698 , 194 S.E.2d 719, 1973 Va. LEXIS 211 (1973); Hewitt v. Hutter, 432 F. Supp. 795, 1977 U.S. Dist. LEXIS 16415 (W.D. Va. 1977), aff'd, 568 F.2d 773 (4th Cir. 1978).

    Discretion of trial court. —

    The allowance of interest is in the sound discretion of the trial court (and now the jury). Wolford v. Williams, 195 Va. 489 , 78 S.E.2d 660, 1953 Va. LEXIS 220 (1953); Safway Steel Scaffolds of Va., Inc. v. Coulter, 198 Va. 469 , 94 S.E.2d 541, 1956 Va. LEXIS 231 (1956); Columbia Heights Section 3, Inc. v. Griffith-Consumers Co., 205 Va. 43 , 135 S.E.2d 116, 1964 Va. LEXIS 143 (1964).

    Awards of prejudgment interest are sometimes inappropriate in cases involving a bona fide dispute on the merits. Hewitt v. Hutter, 432 F. Supp. 795, 1977 U.S. Dist. LEXIS 16415 (W.D. Va. 1977), aff'd, 568 F.2d 773 (4th Cir. 1978).

    This section gives legislative recognition that interest “is a legal incident of the debt” and follows the principal after maturity as “the shadow follows the substance.” Parsons v. Parsons, 167 Va. 374 , 189 S.E. 448 , 1937 Va. LEXIS 285 (1937).

    A jury may not allow a rate of interest greater than the maximum rate permitted by state law. Marsteller Corp. v. Ranger Constr. Co., 530 F.2d 608, 1976 U.S. App. LEXIS 12988 (4th Cir. 1976).

    Maximum rate of interest which a jury may impose under this section is the maximum allowed under former § 6.1-330.11 when no exceptions are applicable. Marsteller Corp. v. Ranger Constr. Co., 530 F.2d 608, 1976 U.S. App. LEXIS 12988 (4th Cir. 1976).

    When the right to interest arises from the power conferred on a jury by this section and not from an express or implied contract to pay interest, the maximum rate a jury may allow is that allowed under former § 6.1-330.11. Marsteller Corp. v. Ranger Constr. Co., 530 F.2d 608, 1976 U.S. App. LEXIS 12988 (4th Cir. 1976).

    This section does not stipulate the rate a jury may allow, and an award of less than six percent is proper. Marsteller Corp. v. Ranger Constr. Co., 530 F.2d 608, 1976 U.S. App. LEXIS 12988 (4th Cir. 1976).

    Interest on judgments not element of “damages”. —

    Interest the law allows on judgments is not an element of “damages” but a statutory award for delay in the payment of money due. Nationwide Mut. Ins. Co. v. Finley, 215 Va. 700 , 214 S.E.2d 129, 1975 Va. LEXIS 213 (1975).

    Interest is allowable on all contracts and assurances made directly, or indirectly for the loan, or forbearance of money, or other things. And the obligation to pay interest, when not expressly waived, is implied and begins when the debt is due and payable. Beale v. Moore, 183 Va. 519 , 32 S.E.2d 696, 1945 Va. LEXIS 198 (1945); Columbia Heights Section 3, Inc. v. Griffith-Consumers Co., 205 Va. 43 , 135 S.E.2d 116, 1964 Va. LEXIS 143 (1964).

    Section does not permit allowance of interest contrary to terms of contract. —

    This section does not contemplate or permit the allowance of interest in the decree or judgment contrary to the terms of the contract between the parties. Pittston Co. v. O'Hara, 191 Va. 886 , 63 S.E.2d 34, 1951 Va. LEXIS 144 (1951).

    This section gives the jury, or the judge in a nonjury trial, discretionary power to provide for interest on any principal sum awarded, and to fix the period at which the interest shall commence. But this section does not permit the allowance of interest in a decree or judgment for specific performance by the purchasers under a contract for the purchase of land contrary to the terms of the contract. Eascalco, Inc. v. Caulfield, 220 Va. 475 , 259 S.E.2d 821, 1979 Va. LEXIS 284 (1979).

    Purpose of amendment adding exception as to commercial paper. —

    The 1964 amendment, which added the exception at the beginning of the section, was designed to remove from the jury or the court the discretionary power to set the time from which interest would run in the case of commercial paper. Schwab v. Norris, 217 Va. 582 , 231 S.E.2d 222, 1977 Va. LEXIS 205 (1977).

    Time from which interest would run on a negotiable promissory note held governed by former § 8.3-122 (see now § 8.3A-118 ) and not former § 8-223 (now § 8.01-382 ). Schwab v. Norris, 217 Va. 582 , 231 S.E.2d 222, 1977 Va. LEXIS 205 (1977).

    In action for damages for failure to comply with order of Interstate Commerce Commission awarding reparation for unreasonable freight charges, it was held that the allowance of interest was proper. City of Danville v. C & O Ry., 34 F. Supp. 620, 1940 U.S. Dist. LEXIS 2615 (D. Va. 1940).

    Confirmation of erroneous date was not exercise of discretion. —

    The special master, through obvious error as to dates, found that interest on plaintiff’s claim should run from January 15, 1962, rather than from the date of January 15, 1961, indicated by the record. The chancellor’s confirmation of this date did not, under the circumstances, represent an exercise of his discretion under this section to set the date for the running of interest; hence, the decree was modified on appeal to give interest from the correct date. Globe Iron Constr. Co. v. First Nat'l Bank, 205 Va. 841 , 140 S.E.2d 629, 1965 Va. LEXIS 142 (1965).

    Instructions as to interest held erroneous. —

    The allegation contained the common counts in assumpsit and also a special count upon the contract. The evidence was such as to have made it possible for the jury to find for the plaintiff, either upon the special contract, or upon the general assumpsit. Under all the circumstances of the case the section applied, and the jury had the right, in their discretion, to fix the date from which the interest should begin to run. Consequently, a peremptory instruction of the lower court to the jury that if they found for the plaintiff they should allow interest from the time the plaintiff’s demand accrued, under the terms of the contract, was in conflict with this section and was such an invasion of the province of the jury as to constitute reversible error. Washington & Old Dominion Ry. v. Westinghouse Elec. & Mfg. Co., 120 Va. 620 , 89 S.E. 131 , 91 S.E. 646 , 1916 Va. LEXIS 168 (1916).

    Under this section, it is error to instruct the jury as a matter of law that they should allow interest. Riverside & Dan River Cotton Mills, Inc. v. Thomas Branch & Co., 147 Va. 509 , 137 S.E. 620 , 1927 Va. LEXIS 320 (1927); Thomas Branch & Co. v. Riverside & Dan River Cotton Mills, Inc., 147 Va. 522 , 137 S.E. 614 , 1927 Va. LEXIS 321 (1927); Jones v. Foster, 70 F.2d 200, 1934 U.S. App. LEXIS 4103 (4th Cir.), cert. denied, 293 U.S. 558, 55 S. Ct. 70, 79 L. Ed. 659, 1934 U.S. LEXIS 161 (1934).

    In an action by seller of cattle against buyer for balance of purchase price, the court instructed the jury that if they should find for the plaintiff they should allow interest from the time of delivery of the cattle. It was held that this instruction was erroneous under this section, which permits the jury in actions on contract to allow interest and fix the period at which such interest shall commence. Latham v. Powell, 127 Va. 382 , 103 S.E. 638 , 1920 Va. LEXIS 58 (1920).

    Instructions held proper. —

    Instructions to the jury that the damages were “with interest from September 28, 1898,” did not take from the jury the discretion, given by this section, of determining from what period, if at all, their verdict should bear interest. The appellate court divided equally upon this question. Kimball v. Borden, 97 Va. 477 , 34 S.E. 45 , 1899 Va. LEXIS 63 (1899).

    Effect in appellate court when jury erroneously instructed. —

    Where the lower court erred in peremptorily directing the jury to allow interest to plaintiff from the time the plaintiff’s demand accrued, where under this section such allowance of interest was discretionary with the jury, the appellate court may affirm the judgment on condition that plaintiff relinquish the interest upon the principal sum found by the jury. Washington & Old Dominion Ry. v. Westinghouse Elec. & Mfg. Co., 120 Va. 620 , 89 S.E. 131 , 91 S.E. 646 , 1916 Va. LEXIS 168 (1916).

    Judgment when verdict does not allow interest. —

    The statute is express and imperative that “if a verdict be rendered which does not allow interest, the sum thereby found shall bear interest from its date, and judgment shall be entered accordingly.” Fry v. Leslie, 87 Va. 269 , 12 S.E. 671 , 1891 Va. LEXIS 67 (1891).

    In an action of debt on a decree for an amount of interest found due the plaintiff from the defendant, it was held that interest on the amount of the decree may be recovered in the shape of damages for its detention though the decree makes no provision for the payment of interest thereon. Stuart v. Hurt, 88 Va. 343 , 13 S.E. 438 , 1891 Va. LEXIS 39 (1891).

    If the trial court has failed to enter judgment for the interest, its judgment will be amended in this respect on cross error assigned by the plaintiff in the appellate court. Atlantic C.L.R.R. v. Grubbs, 113 Va. 214 , 74 S.E. 144 , 1912 Va. LEXIS 25 (1912).

    A judgment which did not bear interest was not a complete and final adjudication, because it did not meet the requirements of this section, and until the court ascertained and adjudicated when interest should begin there was no final judgment. Amalgamated Clothing Workers of Am. v. Kiser, 174 Va. 229 , 6 S.E.2d 562, 1939 Va. LEXIS 158 (1939).

    Unliquidated claims. —

    There is nothing in the language used in this section to indicate that the discretion of a jury to award interest and fix the time thereof shall not be exercised in the case of an unliquidated claim. The fact that the provisions of the statute are to be applied in a tort action which is usually on an unliquidated claim, clearly indicates a legislative intent that an unliquidated claim is within its purview. Beale v. King, 204 Va. 443 , 132 S.E.2d 476, 1963 Va. LEXIS 170 (1963).

    CIRCUIT COURT OPINIONS

    Sections 8.01-382 and 8.01-581.15 compared. —

    Section 8.01-382 confers on plaintiffs a right to interest between a jury verdict and judgment, while § 8.01-581.15 limits the total amount of a plaintiff’s recovery for his or her injuries, but § 8.01-581.15 does not prejudice a plaintiff’s separate and distinct right to recover interest after damages are liquidated, that is, after the verdict but before judgment. Speelman v. Browning, 57 Va. Cir. 234, 2001 Va. Cir. LEXIS 436 (Norfolk Dec. 21, 2001).

    Because a resident’s injury due to malpractice occurred on February 7, 2009, which was between July 1, 2008 and June 30, 2012, § 8.01-581.15 limited the resident’s total recovery to $2 million, inclusive of compensatory and punitive damages, and § 8.01-38.1 limited punitive damages to a maximum award of $350,000; the statutory caps did not limit the resident’s post-judgment interest under § 8.01-382 . Crouse v. Med. Facilities of Am. XLVIII, 86 Va. Cir. 168, 2013 Va. Cir. LEXIS 7 (Roanoke Jan. 22, 2013).

    Although pre-judgment interest is limited by statutory caps, neither § 8.01-581.15 nor § 8.01-38.1 imposes a limit on post-judgment interest under § 8.01-382 . Crouse v. Med. Facilities of Am. XLVIII, 86 Va. Cir. 168, 2013 Va. Cir. LEXIS 7 (Roanoke Jan. 22, 2013).

    Award of prejudgment and post-judgment interest generally. —

    Section 8.01-382 requires that interest accrue at the statutory rate from the date a jury verdict is rendered, unless the jury verdict is already accruing interest because of the jury’s decision to award prejudgment interest; if a jury verdict awards prejudgment interest, that interest continues accruing post-judgment interest as well, but if the jury does not provide for interest, then the court must provide for interest beginning from the date the verdict is rendered. Speelman v. Browning, 57 Va. Cir. 234, 2001 Va. Cir. LEXIS 436 (Norfolk Dec. 21, 2001).

    Trial court found that interest continued to run after an award of prejudgment interest was made; § 8.01-382 required that a judgment was required to bear interest at the judgment rate of interest as provided for in § 6.1-330.54 [now see § 6.2-302 ] from its date of entry or from the date that the jury verdict was rendered. Blake Constr. Poole v. Upper Occoquan Sewage Auth., 71 Va. Cir. 248, 2006 Va. Cir. LEXIS 135 (Fairfax County June 30, 2006), aff'd in part and rev'd in part, 275 Va. 41 , 655 S.E.2d 10, 2008 Va. LEXIS 17 (2008).

    Case need not be frivolous to award prejudgment interest. —

    This section does not require a court to find a defendant’s case frivolous or insubstantial to award pre-judgment interest. Assocs. Fin. Servs. of Am., Inc. v. Allstate Ins. Co., 56 Va. Cir. 487, 2001 Va. Cir. LEXIS 524 (Norfolk Oct. 5, 2001).

    Interest from verdict to date of judgment. —

    Under the scheme of § 8.01-382 , an award of interest at the legal rate from the date of a verdict to the date of a judgment is not “prejudgment interest,” as that term is used in its ordinary sense, to connote interest provided on an award to run from the date of injury or a subsequent date, which is left to the discretion of the trier of fact when setting the amount of damages, but interest between jury verdict and judgment is statutorily mandated to accrue at the legal rate from the time the verdict or judgment is rendered until the judgment is paid in full. Speelman v. Browning, 57 Va. Cir. 234, 2001 Va. Cir. LEXIS 436 (Norfolk Dec. 21, 2001).

    Interest from verdict to date of payment. —

    Because an administratrix did not establish that a local cardiologist’s testimony was “essential to the prosecution” of her cause of action, she was not entitled to tax as costs the expenses incurred in the preparation of the testimony under § 17.1-626 ; however, she was entitled to judgment interest under § 8.01-382 from the date of the verdict to the date that the judgment was paid. Rogers v. Williams, 70 Va. Cir. 73, 2005 Va. Cir. LEXIS 370 (Danville Oct. 12, 2005).

    Prejudgment interest awarded. —

    Pre-judgment interest was awarded to a mortgagee since, although the Virginia Supreme Court had not ruled on whether a mortgagee was entitled to collect on a homeowner’s policy despite the malfeasance of the mortgagor, the issue had been settled in the sister states; the three-year delay in payment to the mortgagee provided an additional reason for awarding pre-judgment interest. Assocs. Fin. Servs. of Am., Inc. v. Allstate Ins. Co., 56 Va. Cir. 487, 2001 Va. Cir. LEXIS 524 (Norfolk Oct. 5, 2001).

    Purpose of prejudgment interest. —

    Trial court granted the former stepfather’s motion to modify the final order to delete an award of interest on the punitive damage portion of the jury’s award of damages to the former stepfather, based on her claim against him for intentional infliction of emotional distress, as an interest award on the punitive damage award would not serve the statutory purpose of making the former stepdaughter whole. LeBrun v. Yakeley, 67 Va. Cir. 122, 2005 Va. Cir. LEXIS 12 (Fairfax County Mar. 7, 2005).

    Felony criminal prosecution was not an action at law or a suit in equity, and therefore a criminal restitution order could be enforced as a civil judgment only when the order was docketed under the authority of § 19.2-305.2 B. Commonwealth v. Mehryar, 57 Va. Cir. 496, 2000 Va. Cir. LEXIS 521 (Fairfax County Nov. 15, 2000).

    Criminal restitution order, although a decree or order requiring the payment of money, was not governed by this section. Commonwealth v. Mehryar, 57 Va. Cir. 496, 2000 Va. Cir. LEXIS 521 (Fairfax County Nov. 15, 2000).

    Interest was not allowed against county. —

    Contractor could not recover interest from county in the contractor’s action for breach of a contract regarding the construction of a water treatment plant, as § 15.2-1244 did not allow the collection of interest on any county payments on construction claims, regardless of the provisions of § 8.01-382 . MCI Constructors v. Spotsylvania County, 60 Va. Cir. 290, 2002 Va. Cir. LEXIS 250 (Spotsylvania County Oct. 28, 2002).

    Prejudgment interest not allowed. —

    Court entered judgment only for a corporate entity defendant on its counterclaims against a corporate plaintiff and, in its discretion, awarded the entity prejudgment interest only for the 1.5 years the case should have taken to complete since the entity did not initially vigorously pursue its counterclaims. DACAM Corp. v. RIJMAC, Inc., 2000 Va. Cir. LEXIS 644 (Amherst County Dec. 7, 2000).

    In a breach of contract suit where the parties orally agreed that a payment by an insured would produce an annuity of over $25,000 per year, but the annuity produced less, the court declined to award plaintiffs prejudgment interest. As most of the monthly payments under the annuity would be due in the future, the loss of income would occur in the future rather than in the past, and the judgment had not been reduced to present value; thus, because plaintiffs were receiving a future value at the present time, an award of prejudgment interest would be unfair to defendants. Clarke v. Collins, 73 Va. Cir. 12, 2006 Va. Cir. LEXIS 189 (Lynchburg Oct. 4, 2006).

    Court directed that the interest on rent proceeds awarded to plaintiff based on his co-ownership of real estate commence on the date of the judgment order rather than an earlier period of time because plaintiff waited approximately 16 years to institute the partition action; the co-owners should not have been penalized for the lack of diligence of plaintiff to ascertain his property interests and take action to protect those interests. Clayborne v. McClain, 72 Va. Cir. 23, 2006 Va. Cir. LEXIS 186 (Nelson County Apr. 11, 2006).

    Where a construction contract was enforceable under North Carolina law but suit for breach of that contract was brought in Virginia, the issue of prejudgment interest was treated substantively under North Carolina law, N.C. Gen. Stat. § 24-5. Mandatory interest was due and payable from the date of the breach until the judgment was satisfied. Trident Elec., Inc. v. John S. Clark, Inc., 2008 Va. Cir. LEXIS 5 (Roanoke County Feb. 8, 2008).

    In this breach of contract action, plaintiffs request for prejudgment interest was denied because this dispute had taken more than two years to progress from the date of filing until the trial and it would be unfair to award prejudgment interest from September 1, 2006, until entry of the judgment where the prevailing plaintiff participated in the delay. Farmville Inv. Group, LLC v. Prospect Homes of Richmond, Inc., 79 Va. Cir. 69, 2009 Va. Cir. LEXIS 68 (Henrico County Apr. 27, 2009).

    OPINIONS OF THE ATTORNEY GENERAL

    The term “principal sum awarded,” as used in this section, does not include costs of recovery, such as court costs and attorneys’ fees; legal or contractual interest accrued prior to judgment; and statutory penalties imposed for nonpayment of debt; therefore, such items do not accrue interest pursuant to this section. See opinion of Attorney General to The Honorable Barbara J. Gaden, Judge, City of Richmond General District Court, 04-28 (8/2/04).

    § 8.01-383. Power to grant new trial; how often.

    In any civil case or proceeding, the court before which a trial by jury is had, may grant a new trial, unless it be otherwise specially provided. A new trial may be granted as well where the damages awarded are too small as where they are excessive. Not more than two new trials shall be granted to the same party in the same cause on the ground that the verdict is contrary to the evidence, either by the trial court or the appellate court, or both.

    History. Code 1950, § 8-224; 1977, c. 617.

    Cross references.

    As to allowing appeal when verdict reduced and accepted under protest, see § 8.01-383.1 .

    As to when final judgment to be entered after verdict is set aside, see § 8.01-430 .

    As to payment of costs when new trial is granted, see § 17.1-610 .

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 28.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Discretion of court. —

    In awarding a new trial, it is within the trial judge’s discretion to decide whether a new trial should be on all issues or solely on the issue of damages. Sampson v. Sampson, 221 Va. 896 , 275 S.E.2d 597, 1981 Va. LEXIS 225 (1981).

    In determining whether an excessive damage award requires a new trial on all issues, a new trial limited to damages, an order of remittitur, or a judgment confirming the award, a trial judge is vested with broad discretion, and the Supreme Court will not reverse his ruling unless the record plainly shows an abuse of discretion. Ford Motor Co. v. Bartholomew, 224 Va. 421 , 297 S.E.2d 675, 1982 Va. LEXIS 312 (1982).

    Before a new trial should be limited to the amount of damages, it should be reasonably clear that the misconception of the jury has not extended to its determination of the question of liability as well as to its determination of the amount of damages. Rutherford v. Zearfoss, 221 Va. 685 , 272 S.E.2d 225, 1980 Va. LEXIS 290 (1980).

    Amount of damages in personal injury cases. —

    In personal injury cases, where the action merely sounds in damages, and there is no rule for measuring such damages, the amount to be awarded is left largely to the discretion of the jury. The verdict of the jury, arrived at upon competent evidence and controlled by proper instructions, has always been held to be inviolate against disturbance by the courts. Taylor v. Maritime Overseas Corp., 224 Va. 562 , 299 S.E.2d 340, 1983 Va. LEXIS 162 (1983).

    After-discovered evidence. —

    One of the criteria for determining whether a new trial should be ordered for after-discovered evidence is whether the evidence could have been discovered before trial by the exercise of due diligence. Taylor v. Maritime Overseas Corp., 224 Va. 562 , 299 S.E.2d 340, 1983 Va. LEXIS 162 (1983).

    B.Excessive Damages.

    Remittitur discretionary. —

    The power to order remittitur lies within the sound discretion of the trial court. Robinson v. Old Dominion Freight Line, 236 Va. 125 , 372 S.E.2d 142, 5 Va. Law Rep. 560, 1988 Va. LEXIS 125 (1988).

    When court will correct award. —

    Where the attack upon a verdict is based upon its alleged excessiveness, if the amount awarded is so great as to shock the conscience of the court and to create the impression that the jury has been motivated by passion, corruption or prejudice, or has misconceived or misconstrued the facts or the law, or if the award is so out of proportion to the injuries suffered as to suggest that it is not the product of a fair and impartial decision, the court is empowered, and in fact obligated, to step in and correct the injustice. Rutherford v. Zearfoss, 221 Va. 685 , 272 S.E.2d 225, 1980 Va. LEXIS 290 (1980).

    Trial de novo not mandatory where award not based on sympathy or bias. —

    A trial de novo is not mandatory, when the monetary award, though out of proportion to the injuries suffered, is not so excessive as to compel the conclusion that the liability verdict was the product of sympathy for the plaintiff or bias against the defendant. In such case, if the evidence before the jury clearly supports its finding of liability, a trial judge has two options. He may put the plaintiff on terms to accept a remittitur in lieu of a new trial, § 8.01-383.1 , or he may grant the defendant a new trial limited to damages, under this section. Ford Motor Co. v. Bartholomew, 224 Va. 421 , 297 S.E.2d 675, 1982 Va. LEXIS 312 (1982).

    Error to remit compensatory damages award, rather than granting a new trial. —

    When a seaman sued a shipowner for maintenance and cure compensatory and punitive damages, it was error for the trial court to remit a compensatory damages award, rather than granting a new trial, because (1) the evidence did not support the claims, so it was error to instruct on the claims, and (2) a new trial was required, as the instruction, and the admission of the shipowner’s net worth, were not harmless errors, and remittitur did not correct the instruction. Hale v. Maersk Line Ltd., 284 Va. 358 , 732 S.E.2d 8, 2012 Va. LEXIS 156 (2012).

    Court may require part of award be remitted or order new trial. —

    Although the amount to award the wronged party is a matter within the discretion of the jury, if the trial court concludes that a verdict is excessive, it also has the authority under this section and § 8.01-383.1 to require plaintiff to remit a portion of the award or to submit to a new trial. If a new trial is ordered, it is within the trial court’s discretion to grant a new trial on all issues or solely on the issue of damages. LaVay Corp. v. Dominion Fed. Sav. & Loan Ass'n, 645 F. Supp. 612, 1986 U.S. Dist. LEXIS 19954 (E.D. Va. 1986), aff'd in part and rev'd in part, 830 F.2d 522, 1987 U.S. App. LEXIS 13005 (4th Cir. 1987).

    C.Inadequate Damages.

    As a general rule, a court cannot set aside a verdict and order a new trial where the defendant claims that the plaintiff’s verdict was inadequate; a court erred granting the driver’s motion to set aside the injured party’s verdict as inadequate. Shepherd v. Smith, 265 Va. 327 , 576 S.E.2d 427, 2003 Va. LEXIS 30 (2003).

    In cases in which the evidence is insufficient to sustain a verdict finding defendant not liable, the court will set aside a verdict in favor of the plaintiff on the ground of inadequacy and grant a new trial, whether the verdict be for merely a nominal amount or for a substantial but inadequate sum. And the new trial should be limited to the question of the amount of the damages. Sampson v. Sampson, 221 Va. 896 , 275 S.E.2d 597, 1981 Va. LEXIS 225 (1981).

    Error in refusal to set aside verdict in wrongful death action. —

    In a wrongful death action where the decedent’s widow and children were awarded nothing for sorrow, mental anguish and solace, and the children were awarded nothing for lost services and protection, the award by the jury rendered the entire verdict suspect and lead to the conclusion that the jury must have misconceived or misunderstood the facts or the law; hence, the trial court erred in refusing to set aside the verdict. Johnson v. Smith, 241 Va. 396 , 403 S.E.2d 685, 7 Va. Law Rep. 2225, 1991 Va. LEXIS 64 (1991).

    Verdict not inadequate. —

    In a negligence action arising out of an automobile accident, a verdict awarding damages to plaintiff was not inadequate as a matter of law because evidence creating questions as to whether plaintiff’s injuries were aggravated or even causally related to the car collision at issue permitted the jury to find that plaintiff had not been injured as seriously as she claimed or that special damages were not reasonably related to the accident. Accordingly, plaintiff was not entitled to a new trial. McMonigle v. Walton, No. 5:03CV00069, 2007 U.S. Dist. LEXIS 30988 (W.D. Va. Apr. 27, 2007).

    II.Decisions Under Prior Law.

    Editor’s note.

    Purpose. —

    The General Assembly intended, in enacting this section, that trial judges be empowered in their sound discretion to exercise supervision over the verdicts of juries. Clatterbuck v. Miller, 215 Va. 359 , 209 S.E.2d 904, 1974 Va. LEXIS 292 (1974).

    Litigant entitled to one fair trial. —

    Under a sound public policy, the law accords to every litigant one fair and regular trial, but only one. Vaughan v. Mayo Milling Co., 127 Va. 148 , 102 S.E. 597 , 1920 Va. LEXIS 41 (1920).

    A motion for a new trial is addressed to the sound discretion of the trial court. Citizens Bank v. Taylor & Co., 104 Va. 164 , 51 S.E. 159 , 1905 Va. LEXIS 83 (1905).

    A sound discretion is vested in the trial court as to whether the ends of justice will be better served by setting aside, or refusing to set aside, an inadequate verdict. Rawle v. McIlhenny, 163 Va. 735 , 177 S.E. 214 , 1934 Va. LEXIS 213 (1934).

    Greater latitude is allowed the trial court in granting than in refusing a new trial on the ground that the verdict is contrary to the evidence. Cardwell v. Norfolk & W. Ry., 114 Va. 500 , 77 S.E. 612 , 1913 Va. LEXIS 112 (1913).

    Remittitur discretionary. —

    This section and § 8.01-383.1 tacitly recognize and implicitly ratify the common-law rule that the power to order remittitur lies within the sound discretion of the trial court. Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976); Bunch v. State Hwy. & Transp. Comm'r, 217 Va. 627 , 231 S.E.2d 324, 1977 Va. LEXIS 211 (1977).

    Review of discretion. —

    The appellate court will not reverse the action of the trial court setting aside a verdict as inadequate unless it plainly appears from the record that its action in so doing is plainly wrong. Rawle v. McIlhenny, 163 Va. 735 , 177 S.E. 214 , 1934 Va. LEXIS 213 (1934).

    If the verdict is supported by sufficient evidence and is reached in a fair and impartial trial, it cannot be disturbed. Edmiston v. Kupsenel, 205 Va. 198 , 135 S.E.2d 777, 1964 Va. LEXIS 165 (1964).

    When court will set verdict aside for excessive or inadequate damages. —

    While the law wisely leaves the assessment of damages, as a rule, to juries, nevertheless, judges have the power and are clearly charged with the duty of setting aside verdicts, where the damages are either so excessive or so small as to shock the conscience and to create the impression that the jury has been influenced by passion or prejudice, or has in some way misconceived or misinterpreted the facts or the law which should guide them to a just conclusion. C & O Ry. v. Arrington, 126 Va. 194 , 101 S.E. 415 , 1919 Va. LEXIS 88 (1919).

    The verdict will not be disturbed on the ground that the damages awarded are too large or too small unless it shows the jury were actuated by passion, prejudice, or undue influence. Borland v. Barrett, 76 Va. 128 , 1882 Va. LEXIS 10 (1882); Bertha Zinc Co. v. Black's Adm'r, 88 Va. 303 , 13 S.E. 452 , 1891 Va. LEXIS 33 (1891) (see also Rawle v. McIlhenny, 163 Va. 735 , 177 S.E. 214 (1934)).

    Since the enactment of this section, courts have had the power and been charged with the duty of setting aside, in proper cases, the verdict in an action for a personal tort, such as a physical injury to the body or slander, where the damages are either inadequate or excessive. But the rule has been, and still is, that a court will not disturb the verdict in such a case either because of its smallness or because of its largeness, unless, in the light of all the evidence, it is manifestly so inadequate or so excessive as to show very plainly that the verdict has resulted from one or both of two causes: (A) The misconduct of the jury; (B) The jury’s misconception of the merits of the case insofar as they relate to the amount of damages, if any, recoverable. Rawle v. McIlhenny, 163 Va. 735 , 177 S.E. 214 , 1934 Va. LEXIS 213 (1934).

    Where the attack upon a verdict is based upon its alleged excessiveness, if the amount awarded is so great as to shock the conscience of the court and to create the impression that the jury has been motivated by passion, corruption or prejudice, or has misconceived or misconstrued the facts or the law, or if the award is so out of proportion to the injuries suffered as to suggest that it is not the product of a fair and impartial decision, the court is empowered, and in fact obligated, to step in and correct the injustice. Edmiston v. Kupsenel, 205 Va. 198 , 135 S.E.2d 777, 1964 Va. LEXIS 165 (1964); Campbell v. Hankins, 217 Va. 800 , 232 S.E.2d 794, 1977 Va. LEXIS 240 (1977).

    Issues in new trial. —

    In cases in which the evidence is insufficient to sustain a verdict finding the defendant not liable, the court will set aside a verdict in favor of the plaintiff on the ground of inadequacy and grant a new trial, whether the verdict be for merely a nominal amount or for a substantial but inadequate sum. And the new trial should be limited to the question of the amount of the damages. But where the amount of damages recoverable is not distinctly separable from the matters involved in the issue as to liability, the new trial should be granted on all issues. Rawle v. McIlhenny, 163 Va. 735 , 177 S.E. 214 , 1934 Va. LEXIS 213 (1934).

    Alternatives where court determines that verdict is excessive. —

    Under the law as it now exists, taking into consideration the practice at common law, as supplemented by this section and § 8.01-383.1 , in a case where the quantum of damages is the sole issue, if a court determines that a verdict is excessive, it may put the successful party on terms to accept a reduced amount, deemed reasonable to compensate the injured party, as an alternative to awarding a new trial, or it may order a new trial as to the whole amount of damages. Smithey v. Sinclair Ref. Co., 203 Va. 142 , 122 S.E.2d 872, 1961 Va. LEXIS 233 (1961); Edmiston v. Kupsenel, 205 Va. 198 , 135 S.E.2d 777, 1964 Va. LEXIS 165 (1964).

    It appears that the action of the court should be the same in libel and slander cases as in personal injury cases where the motion is to set aside the verdict of the jury, or a part thereof, on the ground that the damages awarded are inadequate. Taylor v. Virginia Metal Prods. Corp., 111 F. Supp. 321, 1952 U.S. Dist. LEXIS 2053 (D. Va. 1952), aff'd, 204 F.2d 457, 1953 U.S. App. LEXIS 2452 (4th Cir. 1953).

    A remittitur or new trial is not warranted if the verdict merely appears to be large and more than the trial judge would have awarded had he been a member of the jury. Edmiston v. Kupsenel, 205 Va. 198 , 135 S.E.2d 777, 1964 Va. LEXIS 165 (1964).

    Remittitur held proper. —

    Although the evidence was devoid of even a suggestion that the jury was actuated by passion, prejudice or corruption, the size of the verdict, so out of proportion as it was to the plaintiff’s injuries and his medical expenses and loss of wages was sufficient, standing alone, to shock the conscience of the court and to cast upon it the stamp of unfairness. Therefore it was proper to order remittitur. Smithey v. Sinclair Ref. Co., 203 Va. 142 , 122 S.E.2d 872, 1961 Va. LEXIS 233 (1961).

    When verdict for plaintiff but preponderance of evidence against him. —

    In cases in which clearly the decided preponderance of the evidence is against the right of the plaintiff to recover, though there is sufficient evidence to support a finding by the jury that the defendant is liable, the court will refuse to set aside a verdict for the plaintiff for inadequacy. Rawle v. McIlhenny, 163 Va. 735 , 177 S.E. 214 , 1934 Va. LEXIS 213 (1934).

    In cases of conflicting evidence, in which there is sufficient evidence to support a verdict in favor of either the plaintiff or the defendant, but in which there is no clear preponderance of the evidence in favor of either, where a verdict in favor of the plaintiff is for substantial though inadequate damages, it cannot upon any reasonable theory be considered a finding for the defendant, and it should be set aside, and a new trial granted, which ordinarily should be limited to the question of the amount of damages. Rawle v. McIlhenny, 163 Va. 735 , 177 S.E. 214 , 1934 Va. LEXIS 213 (1934).

    Plaintiff not moving for new trial waives objection on appeal. —

    Where a judgment has been entered on a verdict for the plaintiff, subject to the court’s opinion on demurrer to the evidence, the plaintiff, not moving in court below for a new trial, cannot insist in the appellate court that the damages allowed him by the verdict are too small. Without such motion below, the appellate court cannot award a new trial. Western Union Tel. Co. v. Virginia Paper Co., 87 Va. 418 , 12 S.E. 755 , 1891 Va. LEXIS 86 (1891).

    Effect of setting aside judgment on demurrer to evidence on third trial. —

    Where two verdicts are rendered in succession, giving the plaintiff damages for an injury received by him through negligence of the defendant, and each, in turn, is set aside on defendant’s motion, that is all that can be set aside under this section. Where a third verdict is rendered, giving the plaintiff a larger amount of damages, subject, however, to a demurrer to the evidence, which is erroneously decided by the court below against the plaintiff, he is entitled to judgment on last verdict, when the judgment on the demurrer is set aside on appeal. Jones v. Old Dominion Cotton Mills, 82 Va. 140 , 1886 Va. LEXIS 18 (1886).

    New judge should not set aside verdict because he did not preside at trial. —

    Where trial judge dies or becomes permanently incapacitated to act by reason of sickness, after the jurors have rendered a verdict in a case, and pending a motion to set aside the verdict on the ground that it is contrary to the evidence, his successor in office, or the judge appointed to hold his court, is not bound to set the verdict aside simply because he did not preside at the trial before the jury. Southall v. Evans, 114 Va. 461 , 76 S.E. 929 , 1913 Va. LEXIS 108 (1913).

    Equity has no power to order new trial in law action. —

    A bill was brought to obtain a new trial of an issue in an action at law, in which there was a verdict and judgment for the defendant. At the hearing the court annulled the judgment, set aside the verdict, and ordered a new trial in the action at law. A court of chancery, under our system of jurisprudence, is invested with no such power as this. It may act on the parties, but not directly on the judgment, nor on the court which rendered it. Wynne v. Newman, 75 Va. 811 , 1881 Va. LEXIS 58 (1881).

    CIRCUIT COURT OPINIONS

    Excessive damages. —

    Court set aside a verdict of $10 million in damages in a private person’s defamation suit against a TV station for broadcasting false reports about a large amount of crack cocaine found at his home. Pursuant to §§ 8.01-383 and 8.01-383.1 , the court chose not to order a new trial because the evidence established liability as well as substantial compensatory damages, thus it would have been unfair and unnecessary to direct a new trial on the issue of liability; however, the court ordered plaintiff to remit $9 million of the award, finding that $1 million was the largest award that could reasonably be sustained consistent with the First Amendment. Sheckler v. Va. Broad. Corp., 63 Va. Cir. 368, 2003 Va. Cir. LEXIS 354 (Charlottesville Nov. 7, 2003).

    Because a jury’s award of $6,227,000 to a surviving husband as the beneficiary of his wife’s estate was grossly disproportionate to the $1,000,000 given to the decedent’s parents, and the disproportionality of the husband’s award was further highlighted when seen in light of the fact that he had been married less than two years before his wife’s death, and that his behavior in the tragic aftermath was characterized by extensive social activities and traveling, remittitur was granted. Despite the acts of spoliation and in the face of aggressive challenges to the husband’s character and credibility, the evidence established that the husband suffered personal injuries, both physical and mental and should be compensated with an award of $2,350,000. Lester v. Allied Concrete Co., 83 Va. Cir. 308, 2011 Va. Cir. LEXIS 245 (Charlottesville Sept. 6, 2011), dismissed, 83 Va. Cir. 308, 2011 Va. Cir. LEXIS 132 (Charlottesville Oct. 21, 2011), aff'd in part and rev'd in part, 285 Va. 295 , 736 S.E.2d 699, 2013 Va. LEXIS 8 (2013).

    Remittitur ordered. —

    Motion to set aside the verdict was denied as to the negligence claims because the jury could have reasonably concluded that the mold growth in the homeowners’ homes was the result of the negligence of the builder in failing to properly construct the home, and that as a result of such negligent construction, water was permitted to enter and remained in the building creating a favorable environment for mold growth; moreover, as a result of negligent construction, the homeowners were exposed to mold that caused them physical injury and damage. However, considering the absence of permanent injury and other damages for which recovery was unavailing, the amount of special damages claimed, and the complexity of the issues presented, the jury verdicts, as to the negligence counts, were excessive; therefore, the court ordered remittitur pursuant to § 8.01-383 and subsection A of § 8.01-383.1 .Meng v. Drees Co., 77 Va. Cir. 442, 2009 Va. Cir. LEXIS 98 (Loudoun County Mar. 6, 2009).

    Verdict not inadequate. —

    Jury verdict could not be disturbed on a claim that the damages award was too small because, based upon the evidence which the jury had before it and the instructions of law, the jury was reasonably entitled to find that an automobile accident victim’s claims of injuries were exaggerated and/or only partially related to another motorist’s negligent conduct. Furthermore, the appellate court could not conclude that the jury reached its verdict by misconception or misunderstanding of the facts or the law. Thompson v. Minor, 98 Va. Cir. 459, 2014 Va. Cir. LEXIS 171 (Westmoreland County Apr. 3, 2014).

    New trial not warranted. —

    New trial was not warranted due to excessive damages in a personal injury lawsuit based on a vehicular collision because the compensatory damages were supported by the evidence, and neither the compensatory nor the punitive damages were so excessive as to shock the trial court’s conscience. Showker v. Kratzer, 77 Va. Cir. 389, 2009 Va. Cir. LEXIS 97 (Rockingham County Feb. 19, 2009).

    § 8.01-383.1. Appeal when verdict reduced and accepted under protest; new trial for inadequate damages.

    1. In any action at law in which the trial court requires a plaintiff to remit a part of his recovery, as ascertained by the verdict of a jury, or else submit to a new trial, such plaintiff may remit and accept judgment of the court thereon for the reduced sum under protest, but, notwithstanding such remittitur and acceptance, if under protest, may appeal the judgment of the court in requiring him to remit to the Court of Appeals. The defendant may appeal the judgment of the court in requiring such remittitur to the Court of Appeals, regardless of the amount. If an appeal is taken from the judgment of the Court of Appeals, the Supreme Court, in matters in which it grants the petition for appeal, shall review the judgment, regardless of amount.
    2. In any action at law when the court finds as a matter of law that the damages awarded by the jury are inadequate, the trial court may (i) award a new trial or (ii) require the defendant to pay an amount in excess of the recovery of the plaintiff found in the verdict. If either the plaintiff or the defendant declines to accept such additional award, the trial court shall award a new trial.If additur pursuant to this subsection is accepted by either party under protest, it may be reviewed on appeal.

    History. Code 1950, § 8-350; 1977, c. 617; 1994, c. 807; 1998, c. 861; 2021, Sp. Sess. I, c. 489.

    Editor’s note.

    Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, rewrote subsection A, which read: “In any action at law in which the trial court shall require a plaintiff to remit a part of his recovery, as ascertained by the verdict of a jury, or else submit to a new trial, such plaintiff may remit and accept judgment of the court thereon for the reduced sum under protest, but, notwithstanding such remittitur and acceptance, if under protest, the judgment of the court in requiring him to remit may be reviewed by the Supreme Court upon an appeal awarded the plaintiff as in other actions at law; and in any such case in which an appeal is awarded the defendant, the judgment of the court in requiring such remittitur may be the subject of review by the Supreme Court, regardless of the amount.”

    Law Review.

    For an article, “Civil Practice and Procedure,” see 32 U. Rich. L. Rev. 1009 (1998).

    For Survey article, “Civil Practice and Procedure,” see 48 U. Rich. L. Rev. 1 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 71, 337.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Statute unconstitutional in unliquidated damages cases. —

    In cases involving unliquidated damages, statute giving trial court post-verdict option to award a new trial or impose additur violates the right to jury trial provided by Article I, § 11 of the Virginia Constitution because it fails to provide plaintiff an option either to consent to the use of additur or to have a new trial. Supinger v. Stakes, 255 Va. 198 , 495 S.E.2d 813, 1998 Va. LEXIS 12 (1998).

    Power of court. —

    While a trial judge may not arbitrarily substitute his opinion for that of the jury, he has both the power and the duty to correct a verdict which he finds so excessive as to shock the conscience of the court or to compel the conclusion that the verdict was the product of passion or prejudice or some misunderstanding of the facts or the law. When the judge makes such a finding, it is the sole function of the Supreme Court to determine whether he has abused the discretion accorded him by the statutes and the common law. Hogan v. Carter, 226 Va. 361 , 310 S.E.2d 666, 1983 Va. LEXIS 293 (1983).

    Discretion of court as to handling of excessive award. —

    In determining whether an excessive damage award requires a new trial on all issues, a new trial limited to damages, an order of remittitur, or a judgment confirming the award, a trial judge is vested with broad discretion, and the Supreme Court will not reverse his ruling unless the record plainly shows an abuse of discretion. Ford Motor Co. v. Bartholomew, 224 Va. 421 , 297 S.E.2d 675, 1982 Va. LEXIS 312 (1982).

    When plaintiff may be put upon terms. —

    If the trial court concludes that a verdict is excessive, it has the authority under this section to require the plaintiff to remit a portion of the award or submit to a new trial. Sampson v. Sampson, 221 Va. 896 , 275 S.E.2d 597, 1981 Va. LEXIS 225 (1981).

    If the verdict may be set aside as excessive, but is not so excessive as to evidence passion, prejudice or corruption, the plaintiff may be put upon terms to accept a reduced amount, although there is no measure of the damages, and if he accepts it, the defendant cannot complain. But it is only in such a case that the reduction can be made. E.I. Du Pont de Nemours & Co. v. Taylor, 124 Va. 750 , 98 S.E. 866 , 1919 Va. LEXIS 164 (1919).

    If the court has no right to set aside verdict as excessive — there being no measure of damages — it has no right to put a party upon terms to accept a less amount than that fixed by the verdict. Boyd v. Boyd, 116 Va. 326 , 82 S.E. 110 , 1914 Va. LEXIS 36 (1914).

    In cases (such as personal injury cases) where there is no legal measure of damages, as well as in those in which such legal measure exists, where the verdict is plainly excessive the court may put the successful party on terms to release what it regards as excessive. Smithey v. Sinclair Ref. Co., 203 Va. 142 , 122 S.E.2d 872, 1961 Va. LEXIS 233 (1961).

    If the verdict is determined to be excessive, the court may put the successful party on terms to accept a reduced amount, deemed reasonable compensation for his injuries, as an alternative to awarding a new trial, or it may order a new trial as to the whole amount of damages. Edmiston v. Kupsenel, 205 Va. 198 , 135 S.E.2d 777, 1964 Va. LEXIS 165 (1964).

    If the monetary award is out of proportion to the injuries suffered but not so large that the jury’s verdict as to liability is impeached, the court may put the plaintiff to the choice of accepting a remittitur or facing a new trial. Freeman v. Case Corp., 924 F. Supp. 1456, 1996 U.S. Dist. LEXIS 5897 (W.D. Va. 1996), rev'd, 118 F.3d 1011, 1997 U.S. App. LEXIS 16791 (4th Cir. 1997).

    Trial de novo not mandatory where award not based on sympathy or bias. —

    A trial de novo is not mandatory, when the monetary award, though out of proportion to the injuries suffered, is not so excessive as to compel the conclusion that the liability verdict was the product of sympathy for the plaintiff or bias against the defendant. In such case, if the evidence before the jury clearly supports its finding of liability, a trial judge has two options. He may put the plaintiff on terms to accept a remittitur in lieu of a new trial, under this section, or he may grant the defendant a new trial limited to damages, under § 8.01-383 . Ford Motor Co. v. Bartholomew, 224 Va. 421 , 297 S.E.2d 675, 1982 Va. LEXIS 312 (1982).

    The trial court is required to state its reasons for granting a remittitur. Reel v. Ramirez, 243 Va. 463 , 416 S.E.2d 226, 8 Va. Law Rep. 2806, 1992 Va. LEXIS 42 (1992).

    Court may require part of award be remitted or order new trial. —

    Although the amount to award the wronged party is a matter within the discretion of the jury, if the trial court concludes that a verdict is excessive, it also has the authority under § 8.01-383 and this section to require plaintiff to remit a portion of the award or to submit to a new trial. If a new trial is ordered, it is within the trial court’s discretion to grant a new trial on all issues or solely on the issue of damages. LaVay Corp. v. Dominion Fed. Sav. & Loan Ass'n, 645 F. Supp. 612, 1986 U.S. Dist. LEXIS 19954 (E.D. Va. 1986), aff'd in part and rev'd in part, 830 F.2d 522, 1987 U.S. App. LEXIS 13005 (4th Cir. 1987).

    When a seaman sued a shipowner for maintenance and cure compensatory and punitive damages, it was error for the trial court to remit a compensatory damages award, rather than granting a new trial, because (1) the evidence did not support the claims, so it was error to instruct on the claims, and (2) a new trial was required, as the instruction, and the admission of the shipowner’s net worth, were not harmless errors, and remittitur did not correct the instruction. Hale v. Maersk Line Ltd., 284 Va. 358 , 732 S.E.2d 8, 2012 Va. LEXIS 156 (2012).

    Verdict not set aside or remitted where evidence sufficient and absent proof of jury misunderstanding, passion, corruption, or prejudice. —

    In a medical malpractice action, where the award was not out of proportion to the grievous physical injury suffered by the infant or the devastating emotional trauma and financial difficulty suffered by her parents, there was no reason to believe that the jury misconceived or misunderstood the facts or the law, there was nothing to indicate passion, corruption, or prejudice on the part of the jury, and the verdicts were supported by sufficient evidence and reached by a fair and impartial jury, the court could not set aside the verdicts or put plaintiffs on terms to remit part of their recovery pursuant to provisions of this section. Boyd v. Bulala, 647 F. Supp. 781, 1986 U.S. Dist. LEXIS 18099 (W.D. Va. 1986), amended, 678 F. Supp. 612, 1988 U.S. Dist. LEXIS 1186 (W.D. Va. 1988), aff'd in part and rev'd in part, 877 F.2d 1191, 1989 U.S. App. LEXIS 8364 (4th Cir. 1989).

    This section recognizes the right of the trial court to direct a remittitur, and allows the party against whom it is ordered to accept under protest and to appeal from the judgment on the reduced verdict. Plant Lipford, Inc. v. E.W. Gates & Son Co., 141 Va. 325 , 127 S.E. 183 , 1925 Va. LEXIS 411 (1925).

    In determining whether the trial court abused its discretion, “reasonableness” is the standard by which the exercise of discretion must be tested in the Supreme Court. Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976); Bunch v. State Hwy. & Transp. Comm'r, 217 Va. 627 , 231 S.E.2d 324, 1977 Va. LEXIS 211 (1977).

    When it appears from the record before the Supreme Court that the trial judge made a finding that the verdict was plainly excessive and remittitur should be ordered and that, in reaching his conclusion, he considered factors in evidence relevant to a reasoned evaluation of the damages incurred and to be incurred, his order will not be disturbed on appeal if the recovery after remittitur bears a reasonable relation to the damages disclosed by the evidence. Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976); Bunch v. State Hwy. & Transp. Comm'r, 217 Va. 627 , 231 S.E.2d 324, 1977 Va. LEXIS 211 (1977).

    A remittitur or new trial is not warranted if the verdict merely appears to be large and more than the trial judge would have awarded had he been a member of the jury. Edmiston v. Kupsenel, 205 Va. 198 , 135 S.E.2d 777, 1964 Va. LEXIS 165 (1964); Miller v. Vaughn Motor Co., 207 Va. 900 , 153 S.E.2d 266, 1967 Va. LEXIS 153 (1967).

    B.Appellate Review.

    Scope of review of remittitur. —

    On appeal of an order of remittitur, the Supreme Court does not sit to determine whether a damage award is excessive as a matter of law. Hogan v. Carter, 226 Va. 361 , 310 S.E.2d 666, 1983 Va. LEXIS 293 (1983).

    Standard of review of exercise of discretion. —

    When it appears from the record that the trial judge made a finding that the verdict was plainly excessive and remittitur should be ordered and that, in reaching his conclusion, he considered factors in evidence relevant to a reasoned evaluation of the damages incurred and to be incurred, his order will not be disturbed on appeal if the recovery after remittitur bears a reasonable relation to the damages disclosed by the evidence. “Reasonableness” in this context is the standard by which the exercise of discretion must be tested in the Supreme Court. Ford Motor Co. v. Bartholomew, 224 Va. 421 , 297 S.E.2d 675, 1982 Va. LEXIS 312 (1982).

    If the judge’s statement shows that in reaching his conclusion, he considered factors in evidence relevant to a reasoned evaluation of the damages incurred and to be incurred, his order will not be disturbed on appeal if the recovery after remittitur bears a reasonable relation to the damages disclosed by the evidence. Hogan v. Carter, 226 Va. 361 , 310 S.E.2d 666, 1983 Va. LEXIS 293 (1983).

    Remittitur will be reversed if reasons not stated. —

    The Supreme Court can determine whether the trial judge abused his discretion only when the judge states the reasons underlying his decision. If the record on appeal contains no such statement, the Supreme Court will reverse the order of remittitur, reinstate the damage award, and, absent reversible error on the issue of liability, enter final judgment on the verdict. Hogan v. Carter, 226 Va. 361 , 310 S.E.2d 666, 1983 Va. LEXIS 293 (1983).

    Remittitur accepted under protest. —

    Driver’s notice of appeal was timely as an order granting a motorist’s motion for remittitur modified the original judgment and tolled the 30-day time limit, but it was not a final order because the driver could still exercise her right to accept remittitur under protest; the trial court thereafter entered an amended final judgment noting the driver’s acceptance under protest, and the driver filed her notice within 30 days of the amended final judgment. Coalson v. Canchola, 287 Va. 242 , 754 S.E.2d 525, 2014 Va. LEXIS 30 (2014).

    This section recognizes the right of the trial court to direct a remittitur, and allows the party against whom it is ordered to accept under protest and to appeal from the judgment on the reduced verdict. Plant Lipford, Inc. v. E.W. Gates & Son Co., 141 Va. 325 , 127 S.E. 183 , 1925 Va. LEXIS 411 (1925).

    In determining whether the trial court abused its discretion, “reasonableness” is the standard by which the exercise of discretion must be tested in the Supreme Court. Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976); Bunch v. State Hwy. & Transp. Comm'r, 217 Va. 627 , 231 S.E.2d 324, 1977 Va. LEXIS 211 (1977).

    When it appears from the record before the Supreme Court that the trial judge made a finding that the verdict was plainly excessive and remittitur should be ordered and that, in reaching his conclusion, he considered factors in evidence relevant to a reasoned evaluation of the damages incurred and to be incurred, his order will not be disturbed on appeal if the recovery after remittitur bears a reasonable relation to the damages disclosed by the evidence. Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976); Bunch v. State Hwy. & Transp. Comm'r, 217 Va. 627 , 231 S.E.2d 324, 1977 Va. LEXIS 211 (1977).

    A remittitur or new trial is not warranted if the verdict merely appears to be large and more than the trial judge would have awarded had he been a member of the jury. Edmiston v. Kupsenel, 205 Va. 198 , 135 S.E.2d 777, 1964 Va. LEXIS 165 (1964); Miller v. Vaughn Motor Co., 207 Va. 900 , 153 S.E.2d 266, 1967 Va. LEXIS 153 (1967).

    II.Decisions Under Prior Law.

    Editor’s note.

    Purpose. —

    The General Assembly intended, in enacting this section, that trial judges be empowered in their sound discretion to exercise supervision over the verdicts of juries. Clatterbuck v. Miller, 215 Va. 359 , 209 S.E.2d 904, 1974 Va. LEXIS 292 (1974).

    Appellate court may also direct remittitur. —

    Appellate and trial courts, in cases in which excessive damages have been awarded, and in which the plaintiff is entitled to substantial damages, may indicate the excess and give plaintiff the option to remit and take judgment for the residue or be awarded a new trial. Plant Lipford, Inc. v. E.W. Gates & Son Co., 141 Va. 325 , 127 S.E. 183 , 1925 Va. LEXIS 411 (1925).

    Remittitur discretionary. —

    Section 8.01-383 and this section tacitly recognize and implicitly ratify the common-law rule that the power to order remittitur lies within the sound discretion of the trial court. Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976); Bunch v. State Hwy. & Transp. Comm'r, 217 Va. 627 , 231 S.E.2d 324, 1977 Va. LEXIS 211 (1977).

    Court has authority and duty to correct unfair verdict. —

    The courts are clothed with the authority, and charged with the duty, to correct what plainly appears to be an unfair verdict in a personal injury case. The use of this authority is but the exercise of the inherent discretion of the trial courts, limited by the admonitory principle that it is the jury’s function, ordinarily, to assess damages. Edmiston v. Kupsenel, 205 Va. 198 , 135 S.E.2d 777, 1964 Va. LEXIS 165 (1964).

    Where the attack upon a verdict is based upon its alleged excessiveness, if the amount awarded is so great as to shock the conscience of the court and to create the impression that the jury has been motivated by passion, corruption or prejudice, or has misconceived or misconstrued the facts or the law, or if the award is so out of proportion to the injuries suffered as to suggest that it is not the product of a fair and impartial decision, the court is empowered, and in fact obligated, to step in and correct the injustice. Edmiston v. Kupsenel, 205 Va. 198 , 135 S.E.2d 777, 1964 Va. LEXIS 165 (1964).

    Where the jury verdict in a personal injury case appears to be the result of passion, prejudice or corruption, or misconception of facts or law, or where the disproportion between the plaintiff’s injuries and the award is so great as to suggest that the decision was not fair and impartial, it is the duty of the trial court to set aside the verdict and grant a new trial as to damages or to put the successful party on terms to accept a reduced amount. But where the jury’s verdict is supported by sufficient evidence and reached by a fair and impartial jury, it cannot be disturbed merely because the trial judge would have awarded damages in a lesser amount if he had been a member of the jury. Hardy v. Greene, 207 Va. 81 , 147 S.E.2d 719, 1966 Va. LEXIS 190 (1966); Davenport v. Aldrich, 207 Va. 271 , 148 S.E.2d 768, 1966 Va. LEXIS 215 (1966); Miller v. Vaughn Motor Co., 207 Va. 900 , 153 S.E.2d 266, 1967 Va. LEXIS 153 (1967).

    Plaintiff has three choices. —

    Although a plaintiff “may” avail himself of the option to consent under protest to a reduced award, he is not obliged to do so. The permissive language of the statute leaves him with the three choices posited by entry of the order of remittitur, viz., the right to grant unconditional consent to entry of final judgment on the reduced award, the right to grant conditional consent and seek immediate appellate review of the intermediate order, or the right to withhold consent altogether and submit to a new trial. Campbell v. Hankins, 217 Va. 800 , 232 S.E.2d 794, 1977 Va. LEXIS 240 (1977).

    Final judgment where plaintiff consents under protest. —

    If a plaintiff consents under protest to entry of judgment for a reduced award, judgment entered on the reduced award becomes a final judgment to which a writ of error may lie. Thus, the statute affords a protesting plaintiff the option of immediate appellate review of an intermediate ruling of the trial court, i.e., the order of remittitur. Campbell v. Hankins, 217 Va. 800 , 232 S.E.2d 794, 1977 Va. LEXIS 240 (1977).

    Final judgment where plaintiff withholds consent. —

    Where a plaintiff chooses to withhold all consent to entry of a judgment for a reduced award and no such judgment was entered, the order of remittitur is an intermediate order subject to review upon appeal from the final judgment order entered after a new trial. Campbell v. Hankins, 217 Va. 800 , 232 S.E.2d 794, 1977 Va. LEXIS 240 (1977).

    Defendant need not consent. —

    It is not necessary in this State that the losing party should consent to the remitter. E.I. Du Pont de Nemours & Co. v. Taylor, 124 Va. 750 , 98 S.E. 866 , 1919 Va. LEXIS 164 (1919).

    Plaintiff is not deprived of right of appeal. —

    By this section the plaintiff is no longer deprived of his right of appeal. He does not surrender his right of appeal by accepting a judgment for the reduced amount, provided it is done under protest, but retains the right to insist on the verdict of the jury and to contest the correctness of the judgment of the trial court in reducing it. When the case reaches the Supreme Court, it will affirm the judgment, upon the presumption of its correctness, in the absence of evidence to the contrary; but when the evidence is certified, and it appears that the verdict is not so excessive as to warrant the belief that the jury were influenced by partiality, prejudice, or corruption, or have been misled by some mistaken view of the merits of the case, and no standard is disclosed by which the trial court could have measured the reduction, the Supreme Court will uphold the verdict of the jury, because the jury is the tribunal appointed by law to ascertain the damages sustained. E.I. Du Pont de Nemours & Co. v. Taylor, 124 Va. 750 , 98 S.E. 866 , 1919 Va. LEXIS 164 (1919).

    Judgment must be final. —

    Though this section authorizes the review upon a writ of error of the judgment of the court in requiring plaintiff to remit a part of the verdict returned in his favor, it does not authorize such review until final judgment has been entered for him. Wade v. Peebles, 162 Va. 479 , 174 S.E. 769 , 1934 Va. LEXIS 266 (1934).

    And records must show grounds relied on. —

    The practice which permits the trial court to reduce a verdict to an amount deemed reasonable and proper is a wise one, and should not be lightly interfered with. The court, however, cannot in this matter act arbitrarily. Generally, the record must show the grounds relied on in support of such action, otherwise it cannot be upheld. The assessment of damages is peculiarly within the province of the jury, and when the question before the jury is merely as to the quantum of damages to which the plaintiff is entitled, and there is evidence to sustain the verdict found by the jury, no mere difference of opinion, however decided, justifies an interference with the verdict for that cause. Hoffman v. Shartle, 113 Va. 262 , 74 S.E. 171 , 1912 Va. LEXIS 32 (1912).

    The record must show the grounds relied on in support of remittitur, otherwise it cannot be upheld. Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976).

    Appellate court may fix amount of judgment. —

    In an action for personal injuries, the Supreme Court having determined that no error was committed in fixing liability upon defendant for plaintiff’s injury, but that the verdict was excessive, if the case were remanded to the trial court it would be solely for the purpose of assessing the damages. But when the Supreme Court is in as good position to do that as a jury would be, the remand is unnecessary. Lorillard Co. v. Clay, 127 Va. 734 , 104 S.E. 384 , 1920 Va. LEXIS 82 (1920).

    Discretion reviewed on appeal for abuse. —

    The ultimate test in determining whether the order of remittitur should stand on appeal is whether or not the trial court abused its discretion. Bassett Furn. Indus., Inc. v. McReynolds, 216 Va. 897 , 224 S.E.2d 323, 1976 Va. LEXIS 223 (1976).

    But verdict supported by sufficient evidence may not be disturbed. —

    If the verdict is supported by sufficient evidence and is reached in a fair and impartial trial, it cannot be disturbed. Edmiston v. Kupsenel, 205 Va. 198 , 135 S.E.2d 777, 1964 Va. LEXIS 165 (1964).

    Remand for new trial on question of damages only. —

    Where, although the record contained no evidence that the jury was actuated by passion, corruption or prejudice, the verdict was so excessive as to shock the conscience of the court and create the impression that the jury misconceived or misunderstood the facts or the law and that the verdict was not the product of a fair and impartial decision, the case was a proper one for the trial court to have exercised the power vested in it by this section and put the plaintiff on terms to accept a lesser sum, or face a new trial on the issue of damages. In the absence of such action, and being of opinion that the verdict was excessive, the Supreme Court reversed the judgment of the trial court and remanded the cause for a new trial limited to the question of damages only. National Cab Co. v. Thompson, 208 Va. 731 , 160 S.E.2d 769, 1968 Va. LEXIS 175 (1968).

    Affirmance of judgment in part when defense goes to whole. —

    Where the defendant in ejectment obtains a writ of error to the judgment of the trial court awarding the entire premises to the plaintiff, the plaintiff cannot ask to have the judgment affirmed in part, where the defense goes to the entire action. To grant this prayer would be putting not the successful but the unsuccessful litigant on terms. Grizzle v. Davis, 119 Va. 567 , 89 S.E. 870 , 1916 Va. LEXIS 129 (1916).

    CIRCUIT COURT OPINIONS

    Factors considered. —

    Because a jury’s award of $6,227,000 to a surviving husband as the beneficiary of his wife’s estate was grossly disproportionate to the $1,000,000 given to the decedent’s parents, and the disproportionality of the husband’s award was further highlighted when seen in light of the fact that he had been married less than two years before his wife’s death, and that his behavior in the tragic aftermath was characterized by extensive social activities and traveling, remittitur was granted. Despite the acts of spoliation and in the face of aggressive challenges to the husband’s character and credibility, the evidence established that the husband suffered personal injuries, both physical and mental and should be compensated with an award of $2,350,000. Lester v. Allied Concrete Co., 83 Va. Cir. 308, 2011 Va. Cir. LEXIS 245 (Charlottesville Sept. 6, 2011), dismissed, 83 Va. Cir. 308, 2011 Va. Cir. LEXIS 132 (Charlottesville Oct. 21, 2011), aff'd in part and rev'd in part, 285 Va. 295 , 736 S.E.2d 699, 2013 Va. LEXIS 8 (2013).

    Remittitur of awards in negligence action. —

    Motion to set aside the verdict was denied as to the negligence claims because the jury could have reasonably concluded that the mold growth in the homeowners’ homes was the result of the negligence of the builder in failing to properly construct the home, and that as a result of such negligent construction, water was permitted to enter and remained in the building creating a favorable environment for mold growth; moreover, as a result of negligent construction, the homeowners were exposed to mold that caused them physical injury and damage. However, considering the absence of permanent injury and other damages for which recovery was unavailing, the amount of special damages claimed, and the complexity of the issues presented, the jury verdicts, as to the negligence counts, were excessive; therefore, the court ordered remittitur pursuant to § 8.01-383 and subsection A of § 8.01-383.1 .Meng v. Drees Co., 77 Va. Cir. 442, 2009 Va. Cir. LEXIS 98 (Loudoun County Mar. 6, 2009).

    Trial court refused to order a remittitur or a new trial after a $1.5 million compensatory damage verdict in a malpractice case under § 8.01-383.1 where a nursing home failed to use a bed alarm and the resident was injured in a fall from a bed; before the fall, the resident was somewhat independent, but after the fall, she needed assistance with almost all daily activities. Crouse v. Med. Facilities of Am. XLVIII, 86 Va. Cir. 168, 2013 Va. Cir. LEXIS 7 (Roanoke Jan. 22, 2013).

    No new trial ordered. —

    Court set aside a verdict of $10 million in damages in a private person’s defamation suit against a TV station for broadcasting false reports about a large amount of crack cocaine found at his home. Pursuant to §§ 8.01-383 and 8.01-383.1 , the court chose not to order a new trial because the evidence established liability as well as substantial compensatory damages, thus it would have been unfair and unnecessary to direct a new trial on the issue of liability; however, the court ordered plaintiff to remit $9 million of the award, finding that $1 million was the largest award that could reasonably be sustained consistent with the First Amendment. Sheckler v. Va. Broad. Corp., 63 Va. Cir. 368, 2003 Va. Cir. LEXIS 354 (Charlottesville Nov. 7, 2003).

    Additur. —

    Developer was not entitled to an additur because the jury was expressly permitted to find that no damages were incurred by the developer even if a breach occurred, and the developer presented no evidence of any damages in regard its ownership interest in the joint venture. ATK Space Sys. v. US Space LLC, 99 Va. Cir. 46, 2018 Va. Cir. LEXIS 313 (Loudoun County June 21, 2018).

    § 8.01-384. Formal exceptions to rulings or orders of court unnecessary; motion for new trial unnecessary in certain cases.

    1. Formal exceptions to rulings or orders of the court shall be unnecessary; but for all purposes for which an exception has heretofore been necessary, it shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him on motion for a new trial or on appeal.  No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again in order to preserve his right to appeal, challenge, or move for reconsideration of, a ruling, order, or action of the court. No party shall be deemed to have agreed to, or acquiesced in, any written order of a trial court so as to forfeit his right to contest such order on appeal except by express written agreement in his endorsement of the order.  Arguments made at trial via written pleading, memorandum, recital of objections in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.
    2. The failure to make a motion for a new trial in any case in which an appeal, writ of error, or supersedeas lies to or from a higher court shall not be deemed a waiver of any objection made during the trial if such objection be properly made a part of the record.

    History. Code 1950, §§ 8-225, 8-225.1; 1970, c. 558; 1977, c. 617; 1992, c. 564.

    Cross references.

    As to questions considered on appeal, see Rules 5:25 and 5A:18.

    Editor’s note.

    Acts 1992, c. 564, which amended this section, in cl. 2 provides that the provisions of the 1992 act are declaratory of existing law.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1969-1970, see 56 Va. L. Rev. 1500 (1970).

    For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

    For article, “Construction Law,” see 45 U. Rich. L. Rev. 227 (2010).

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    For Survey article, “Civil Practice and Procedure,” see 48 U. Rich. L. Rev. 1 (2013).

    For annual survey article, “Criminal Law and Procedure,” see 48 U. Rich. L. Rev. 63 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 103, 105, 114, 115, 254.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    The primary function of the contemporaneous objection rule is to alert the trial judge to possible error so that the judge may consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials. Johnson v. Commonwealth, 20 Va. App. 547, 458 S.E.2d 599, 12 Va. Law Rep. 5, 1995 Va. App. LEXIS 554 (1995).

    The purpose of this rule is to avoid unnecessary appeals, reversals and mistrials by allowing the trial judge to intelligently consider an issue and, if necessary, to take corrective action. Gurley v. Commonwealth, 34 Va. App. 166, 538 S.E.2d 361, 2000 Va. App. LEXIS 836 (2000).

    Both this section and Rule 5A:18 are not limited to evidentiary rule or other rulings relating to incidents of the trial. This section is applicable to any “rulings or order of the court.” Rule 5A:18 includes the phrase that “[a] mere statement that the judgment or award is contrary to the law and the evidence is not sufficient.” Both provisions negated appellant’s contention that Rule 5A:18 was applicable only to evidentiary and similar rulings and not legal decisions and findings. The myriad of cases interpreting Rule 5:25, Rule 5A:18’s counterpart for the Supreme Court, also belied that contention. Lee v. Lee, 12 Va. App. 512, 404 S.E.2d 736, 7 Va. Law Rep. 2647, 1991 Va. App. LEXIS 102 (1991).

    Procedure to preserve on appeal issue objected to at trial court. —

    Neither this section nor Rule 5A:18 mandate a specific procedure to preserve for appeal an issue objected to in the trial court. A simple statement that embodies the objection and reason therefor suffices. However, neither this section nor Rule 5A:18 is complied with merely by objecting generally to an order. Lee v. Lee, 12 Va. App. 512, 404 S.E.2d 736, 7 Va. Law Rep. 2647, 1991 Va. App. LEXIS 102 (1991).

    Individuals may satisfy the requirements of Va. Sup. Ct. Rule 5A:18 and § 8.01-384 in many ways; for instance, a party’s counsel may, if counsel has previously failed to do so, include an objection and reasons for the objection in the final order or at least tender such an order to the trial judge. Taylor v. Caccia, 2003 Va. App. LEXIS 238 (Va. Ct. App. Apr. 22, 2003).

    Where trial court on its own motion instructed jury to ignore parts of an instruction, without previous consultation with counsel, defense counsel did not have an opportunity to object to the trial court’s ruling, and was not precluded from raising the issue on appeal. Mason v. Commonwealth, 7 Va. App. 339, 373 S.E.2d 603, 5 Va. Law Rep. 799, 1988 Va. App. LEXIS 138 (1988).

    Court has affirmative duty to instruct on principles of law. —

    When a principle of law is vital to a defendant in a criminal case, a trial court has an affirmative duty to properly instruct a jury about the matter. That principle applies even when an objection has not been stated. Johnson v. Commonwealth, 20 Va. App. 547, 458 S.E.2d 599, 12 Va. Law Rep. 5, 1995 Va. App. LEXIS 554 (1995).

    Motion to set aside verdict did not save failure to object to instructions. —

    Where the defendant did make a motion to set aside the verdict, this does not save him from his failure to object to the instructions which submitted the issues of contributory negligence and proximate cause to the jury. Spitzli v. Minson, 231 Va. 12 , 341 S.E.2d 170, 1986 Va. LEXIS 157 (1986).

    No opportunity to raise objection in trial court. —

    Wife was not procedurally barred from raising issues in an appeal of a summary contempt order even though they had not been raised in the trial court because, due to the nature of the summary contempt, the wife had not been afforded any opportunity to raise any objections at the time the order was entered. Amos v. Commonwealth, 61 Va. App. 730, 740 S.E.2d 43, 2013 Va. App. LEXIS 111 (2013), aff'd, 287 Va. 301 , 754 S.E.2d 304, 2014 Va. LEXIS 29 (2014).

    Defendant one’s challenge to the court’s act of entertaining and answering the jury’s questions when neither he nor his counsel were present could be considered on appeal under the contemporaneous objection exception as he did not contest the content of the court’s answers to the jury’s questions; defendant one and his counsel did not have the opportunity to be present and challenge the court’s decision to address questions from the jury in their absence. Maxwell v. Commonwealth, 287 Va. 258 , 754 S.E.2d 516, 2014 Va. LEXIS 31 (2014).

    Contemporaneous objection exception applied and no further steps were required to preserve defendant’s issues for appellate review as defendant was not a party in the proceeding in which she was held in contempt, but was a witness, was not represented by counsel, and after the ruling, was immediately taken to jail without any further consideration by the court; the actions of the trial court prevented defendant from presenting a contemporaneous objection. Commonwealth v. Amos, 287 Va. 301 , 754 S.E.2d 304, 2014 Va. LEXIS 29 (2014).

    When failure to raise a contemporaneous objection or otherwise bring an objection to the court’s attention results from a party’s actions, the contemporaneous objection exception does not apply, and the preservation issue shall be decided under Va. Sup. Ct. R. 5A:18 or 5:25; however, when a party was denied the opportunity to raise a contemporaneous objection, the contemporaneous objection exception applies, and there is no requirement that the party file a post-conviction objection or otherwise bring the objection to the court’s attention later in the proceedings. Commonwealth v. Amos, 287 Va. 301 , 754 S.E.2d 304, 2014 Va. LEXIS 29 (2014).

    Because the trial court did not allow defendant to state and argue his full objection to the Commonwealth’s argument until it dismissed the jury to deliberate, defendant sufficiently preserved his objection and the trial court was given an opportunity to consider the asserted error and rectify its effect on the trial. Exline v. Commonwealth, 2014 Va. App. LEXIS 407 (Va. Ct. App. Dec. 16, 2014).

    Failure to indicate or seek action of trial court. —

    Merely stating an objection to “the irregularity of the jury” failed to indicate what action the defendant wanted the trial court to take; thus, defendant’s failure to seek a mistrial or other action by the trial court prevented consideration of the error as a basis for a reversal. Parker v. Commonwealth, 14 Va. App. 592, 421 S.E.2d 450, 8 Va. Law Rep. 3123, 1992 Va. App. LEXIS 153 (1992).

    Defendant did not object to the trial court’s declaration of a mistrial on a finding of manifest necessity under § 8.01-361 , in a way that would have preserved his double jeopardy right because counsel declined the offer to select another member of the jury and counsel’s use of the phrase “please note my exception” did not communicate anything beyond general disagreement with the ruling of the court. He failed to make known to the court the action he sought the court to take or the objection to the court’s actions and his grounds, as required by subsection A of § 8.01-384 . Kahlil v. Commonwealth, 2008 Va. App. LEXIS 226 (Va. Ct. App. May 6, 2008).

    Appellant had the opportunity to object, but did not, and thus the statute and the good cause exception to the rule were inapplicable in this situation. Heffernan v. Commonwealth, 2014 Va. App. LEXIS 364 (Va. Ct. App. Nov. 4, 2014).

    Counsel’s statement held to raise issue of sufficiency of evidence. —

    Where an issue of sufficiency of evidence was presented to a trial court, sitting without a jury, in a motion to strike at the conclusion of the Commonwealth’s evidence, and upon its denial and upon conclusion of the defendant’s evidence, the same issue was presented in the defendant’s final argument to the court, the defendant had preserved his right to appeal this issue, even though he did not make a motion to strike at the conclusion of his own evidence. Campbell v. Commonwealth, 12 Va. App. 476, 405 S.E.2d 1, 7 Va. Law Rep. 2588, 1991 Va. App. LEXIS 104 (1991).

    The requirement for noting an exception to a final adverse ruling of the trial judge has been eliminated. Johnson v. Commonwealth, 20 Va. App. 547, 458 S.E.2d 599, 12 Va. Law Rep. 5, 1995 Va. App. LEXIS 554 (1995).

    Issues for appeal not waived by endorsement. —

    Anesthesiologist’s endorsement of “We ask for this” on a demurrer order was not an express written agreement to withdraw or waive the anesthesiologist’s issues for appeal as it reflected only his request that the court enter an order memorializing its ruling, not his agreement to the portion of the demurrer order adverse to him. Cashion v. Smith, 286 Va. 327 , 749 S.E.2d 526, 2013 Va. LEXIS 139 (2013).

    Where court was aware of plaintiff’s objections to order sustaining defendant’s plea asserting statute of limitations defense, she was not required to make formal exception. Ward v. Insurance Co. of N. Am., 253 Va. 232 , 482 S.E.2d 795, 1997 Va. LEXIS 33 (1997).

    Sufficient to make objection at trial. —

    Once a party has made an objection at trial it is not required to make it again to preserve the issue for appellate review. Richmond Dep't of Soc. Servs. v. Carter, 28 Va. App. 494, 507 S.E.2d 87, 1998 Va. App. LEXIS 583 (1998).

    Sufficient actions to preserve issue for appeal. —

    Defendant’s endorsement of the final order as “seen,” accompanied by her repeated oral and written arguments challenging the sufficiency of the evidence to support a cause of action for negligent entrustment, clearly afforded the trial court the opportunity to consider the merits of those arguments and adequately preserved the issue for appeal. Kingrey v. Hill, 245 Va. 76 , 425 S.E.2d 798, 9 Va. Law Rep. 755, 1993 Va. LEXIS 2 (1993).

    Although appellant did not note on the final order specific grounds of objection relating to the trial court’s ruling, his presentation to the trial court of a memorandum of points and authorities that discussed, among other things, the reasons why his motion for judgment sufficiently alleged injury to his business combined with his objection to the trial court’s ruling noted on the final order was sufficient to preserve the issue for appeal. Luckett v. Jennings, 246 Va. 303 , 435 S.E.2d 400, 10 Va. Law Rep. 296, 1993 Va. LEXIS 122 (1993).

    Where appellant did not list specific objections to the trial court’s order on the order itself, although no transcripts were provided on appeal, the trial record showed that the parties submitted memoranda addressing the issue, and the trial judge noted in his order that he based his decision on review of the pleadings, memoranda, and arguments of counsel, the appellant afforded the trial court an opportunity to rule intelligently on the issues presented prior to entry of the decree; therefore, the issue raised was properly preserved for appeal. Griffin v. Sprouse, 18 Va. App. 859, 448 S.E.2d 152, 11 Va. Law Rep. 158, 1994 Va. App. LEXIS 569 (1994), rev'd, 250 Va. 46 , 458 S.E.2d 770, 1995 Va. LEXIS 81 (1995).

    Where before and in its pretrial motion for summary judgment, the buyer noted that a failure to investigate the truth of a warranty is no defense to an action predicated on that breach, this objection need not have been repeated when the issue was submitted to the jury. Stuarts Draft Shopping Ctr., L.P. v. S-D Assocs., 251 Va. 483 , 468 S.E.2d 885, 1996 Va. LEXIS 48 (1996).

    Where defendant’s counsel consistently maintained that testimony was admissible, and where this section has eliminated the requirement that counsel make formal exceptions to rulings or orders of the trial judge, requiring defendant to “object” after the judge’s refusal to admit testimony would, in effect, have recreated the requirement of noting an exception to a final adverse ruling of the trial judge. Counsel’s argument therefore was sufficient as an objection to preserve the issue for appeal. Brown v. Commonwealth, 23 Va. App. 225, 475 S.E.2d 836, 1996 Va. App. LEXIS 609 (1996), different results reached on reh'g, 25 Va. App. 171, 487 S.E.2d 248, 1997 Va. App. LEXIS 536 (1997).

    Because a defendant had timely moved to strike a biased juror for cause and had afforded the trial court a fair opportunity to rule intelligently on the issue, and because the defendant renewed that motion even though the juror had been peremptorily stricken from the panel, the defendant did not waive his objection to seating the biased juror so as to bar appellate review. Murray v. Commonwealth, 2001 Va. App. LEXIS 182 (Va. Ct. App. Apr. 10, 2001).

    Wife properly objected to trial court’s order requiring the wife to execute a qualified domestic relations order mandating a transfer of funds to the wife’s ex-husband and to pay the ex-husband’s attorney’s fees and costs, and the appellate court held that the husband and wife placed a dollar value on the amount each would receive from their marital accounts when they were divorced in 1993, and their failure to comply with time limits allowed by their property settlement agreement for transferring property did not permit the trial court to adjust those values. McManus v. Neuschulz, 2002 Va. App. LEXIS 695 (Va. Ct. App. Nov. 19, 2002).

    Although a trial court properly deviated from, and made findings in accordance with the child support guidelines based on the finding of the mother’s history of financial irresponsibility, the trial court failed to consider or rule on the mother’s request for attorney’s fees, which was properly preserved under § 8.01-384 . Princiotto v. Gorrell, 42 Va. App. 253, 590 S.E.2d 626, 2004 Va. App. LEXIS 12 (2004).

    Because the trial court had already ruled in limine that evidence relating to defendant’s possession of pornography would be admitted, and because he objected to that pretrial ruling, his failure to continuously object to the introduction of the evidence was not a waiver of this issue. Croxton v. Commonwealth, 2005 Va. App. LEXIS 166 (Va. Ct. App. Apr. 26, 2005).

    Inmate did not abandon his objection to a proceeding in which he was determined to be a sexually violent predator by failing to raise the objection during trial; the circuit court was aware of the objection, which was based on the assertion that the inmate’s Rapid Risk Assessment for Sexual Offender Recidivism score did not meet the threshold necessary for commencing the proceeding, because the inmate had raised the objection in an earlier motion to dismiss, and the evidence at trial did not contradict the assertion. Shelton v. Commonwealth, 274 Va. 121 , 645 S.E.2d 914, 2007 Va. LEXIS 70 (2007).

    Inmate properly preserved his objection to proceedings that determined that he was a sexually violent predator and committed him to the custody of the commonwealth for treatment and confinement through the motion to dismiss that he filed and his qualified endorsement of the final order; the inmate’s argument in his motion to dismiss that his Rapid Risk Assessment for Sexual Offender Recidivism score did not meet the threshold level required by former § 37.1-70.4 (now this section) gave the circuit court the opportunity to consider the substance of the objection and to rule full knowledge of the reasons underlying the objection. Shelton v. Commonwealth, 274 Va. 121 , 645 S.E.2d 914, 2007 Va. LEXIS 70 (2007).

    Defense counsel made numerous arguments to the trial court that defendant could not be convicted of violating § 18.2-371 , misdemeanor child abuse and neglect, because defendant had not been charged with violating it and it was not a lesser-included offense of § 18.2-371 .1, felony child abuse and neglect. Therefore, defendant adequately preserved that contention for appellate review pursuant to subsection A of § 8.01-384 . Brown v. Commonwealth, 2008 Va. App. LEXIS 94 (Va. Ct. App. Feb. 26, 2008).

    In a case in which defendant appealed his convictions for attempted robbery and use or attempted use of a firearm in the commission of a felony, arguing that the evidence was not sufficient to convict him of the two crimes because the victim was not present and because no circumstances independent of the will of defendant interrupted him and his companions, the Commonwealth argued unsuccessfully that much of defendant’s argument was not preserved pursuant to Va. Sup. Ct. R. 5A:18. While the words used in defendant’s motion to strike before the trial court were somewhat different from the particular language that he used on appeal, the meaning and intention of his argument is clearly the same on appeal as the argument that he made to the trial court; therefore, his argument was preserved under Rule 5A:18. Rogers v. Commonwealth, 55 Va. App. 20, 683 S.E.2d 311, 2009 Va. App. LEXIS 449 (2009).

    In an estate beneficiary’s legal malpractice suit, an attorney did not waive his objections to a trial court’s holding that the beneficiary was a beneficial owner of a legal malpractice claim against him by his endorsement of the trial court’s summary judgment order as “seen and consented to” because the attorney clearly stated his opposition to the beneficial owner ruling in memoranda before the trial court, and the attorney did not abandon this claim by acquiescing in a summary judgment order in his favor. Johnson v. Hart, 279 Va. 617 , 692 S.E.2d 239, 2010 Va. LEXIS 55 (2010).

    In an action to recover a security deposit, a tenant did not sufficiently preserve the tenant’s argument for appeal because, while the tenant’s motion for reconsideration raised the argument, nothing in the record showed the tenant sought or received a ruling, and merely filing the motion in the clerk’s office was insufficient, since the record did not show the trial court had a chance to rule, as the tenant’s written statement of facts did not mention the motion or a ruling thereon, so nothing showed the trial court knew of the motion, and subsection A’s requirement to make known to the court a party’s objections and the grounds therefor was not met, nor could it be said that the case could be heard on appeal on the same record as in the trial court, defeating Va. Sup. Ct. R. 5:25’s purpose. Brandon v. Cox, 284 Va. 251 , 736 S.E.2d 695, 2012 Va. LEXIS 179 (2012).

    As a father filed a motion for reconsideration raising the issue he later raised on appeal, a hearing was held on that motion, and the trial court issued a final order denying it, pursuant to subsection A of § 8.01-384 , nothing more was needed to preserve the point for appellate review. Burns v. Burns, 2012 Va. App. LEXIS 370 (Va. Ct. App. Nov. 20, 2012).

    Commonwealth’s claim of exigent circumstances was not waived under Va. Sup. Ct. R. 5A:18 as the Commonwealth’s post-hearing memorandum on the motion to suppress expressly raised exigent circumstances, and the trial court explicitly noted that it considered the Commonwealth’s memorandum; the issue of exigent circumstances was preserved under subsection A of § 8.01-384 . Commonwealth v. Turner, 2013 Va. App. LEXIS 155 (Va. Ct. App. May 14, 2013).

    Although a nurse had only noted a general objection as “seen and objected to,” she had preserved her objection to an order transferring venue because she filed a brief in opposition to the motion to transfer venue. Prior v. Va. Bd. of Nursing, 2013 Va. App. LEXIS 285 (Va. Ct. App. Oct. 15, 2013).

    Inmate properly preserved a res judicata issue for appeal with his motion to dismiss, his oral arguments before the circuit court, his objection to the court order denying his motion and his stated objection on the final order; the inmate’s stipulations that streamlined the trial on the 2011 petition, after his motion to dismiss the petition was denied, did not indicate an intent to abandon his claim of res judicata. Rhoten v. Commonwealth, 286 Va. 262 , 750 S.E.2d 110, 2013 Va. LEXIS 137 (2013).

    Grandparent’s objection to the vagueness of a trial court’s modification of a no contact order was sufficiently preserved because, before the court entered the order, the grandparent stated the grandparent’s objections to the no contact order. Heffernan v. Arlington County Dep't of Human Servs., 2014 Va. App. LEXIS 239 (Va. Ct. App. June 17, 2014).

    Because the husband made known the action that he desired the trial court to take and the reasons therefor, the issue of whether his evidence was sufficient to survive a motion to strike was preserved for appeal, despite the lack of a formal objection. Coalson v. Coalson, 2015 Va. App. LEXIS 222 (Va. Ct. App. July 21, 2015).

    Because the circuit court was aware of a mother’s arguments when it made its decision, and the mother did nothing to waive her arguments, the mother properly preserved each of her assignments of error; the mother made her positions known to the circuit court initially through her letter and continued her argument on those issues at the hearing. Minor v. Barrett, 2016 Va. App. LEXIS 263 (Va. Ct. App. Oct. 11, 2016).

    Defendant properly preserved for appeal his argument that the trial court erred in concluding that it lacked the discretion to continue the withhold finding at the sentencing hearing and that it was compelled to find him guilty under case law because the trial court cited to the relevant case law and made specific reference to it; once the trial court ruled on the issue, defendant was not required to argue with the trial court about its interpretation. White v. Commonwealth, 67 Va. App. 599, 798 S.E.2d 818, 2017 Va. App. LEXIS 118 (2017).

    Tenants’ issues were preserved for appeal because, following entry of the trial court’s memorandum opinion, the tenants submitted a number of objections that the tenants appended to the trial court’s order dismissing the tenants’ negligence counts and the court had the opportunity to consider these objections. Cherry v. Lawson Realty Corp., 295 Va. 369 , 812 S.E.2d 775, 2018 Va. LEXIS 48 (2018).

    Appeal could not be dismissed, pursuant to a provision in the trial court’s order directing the parties to file their exceptions within 10 days of that order, because appellant’s summary judgment motion had previously made known to the court the action that appellant desired the court to take and its grounds therefore. Erie Ins. Exch. v. EPC MD 15, LLC, 297 Va. 21 , 822 S.E.2d 351, 2019 Va. LEXIS 2 (2019).

    When commercial development site plans for the landowner’s property were excluded pretrial in a condemnation proceeding and did not inform the commissioners’ report, the landowner opposed the court’s pre-trial exclusion of the site plans. That action was sufficient to preserve the point for appellate review. Palmyra Assocs., LLC v. Comm'r of Hwys, 299 Va. 377 , 851 S.E.2d 743, 2020 Va. LEXIS 146 (2020).

    Actions insufficient to preserve issue for appeal. —

    Because a mother never made an objection or argument to the trial court on the grounds that the court made its decision on a “compelling reason” standard instead of a “best interests” standard, and there was no appreciable difference between the broad statement, “seen and objected to” and mother’s broad endorsement, “objected to for reasons argued at trial and in plaintiff’s memorandum of law,” particularly since none of the issues raised by the mother in the memorandum or at trial related to her claim on appeal that the court made its decision on a “compelling reason” standard instead of a “best interests” standard, said action was insufficient to preserve the mother’s argument for appeal. Newsome v. Neary, 2005 Va. App. LEXIS 328 (Va. Ct. App. Aug. 30, 2005).

    Defendant’s argument, made for the first time on appeal, that defendant was improperly sentenced because the substitution of judges had not been promulgated as a local rule and that the substitution of judges was limited by statutory law, was not preserved for appellate review in a case where defendant’s guilty pleas were accepted by one trial judge but defendant was sentenced by another trial judge; defendant did not make those specific objections to the trial court and, thus, the argument was waived for the purpose of appellate review. Jackson v. Commonwealth, 2007 Va. App. LEXIS 233 (Va. Ct. App. June 12, 2007).

    Defendant’s contention that the trial court erred in answering a jury’s question in the affirmative because the response was contrary to the law and led directly to an inconsistent verdict was not properly preserved for review. Pursuant to subsection A of § 8.01-384 , to preserve an issue for appeal, an objection had to be stated together with the grounds at the time of the ruling, and defendant did not object to the trial court’s response prior to the response being submitted to the jury. Ludwig v. Commonwealth, 52 Va. App. 1, 660 S.E.2d 679, 2008 Va. App. LEXIS 227 (2008).

    The failure of a corporation to renew its motion to strike concerning the validity of an assignment at the conclusion of the trial deprived the circuit court of the opportunity to rule on that issue in the context of all of the evidence presented resulting in the corporation’s failure to satisfy subsection A of § 8.01-384 and waiving its right to challenge the sufficiency of the evidence on appeal. United Leasing Corp. v. Lehner Family Bus. Trust, 279 Va. 510 , 689 S.E.2d 670, 2010 Va. LEXIS 34 (2010).

    Where defendant presented his own evidence after denial of a motion to strike the Commonwealth’s evidence, subsection A of § 8.01-384 did not apply to permit appellate review of the sufficiency of the evidence when defendant failed to move to strike at the conclusion of all of the evidence and failed to move to set aside the jury’s verdict because defendant demonstrated, by electing to introduce evidence in defense, an intent to abandon the argument that the Commonwealth failed to meet its burden through the evidence presented in its case-in-chief. Murillo-Rodriguez v. Commonwealth, 279 Va. 64 , 688 S.E.2d 199, 2010 Va. LEXIS 18 (2010).

    Tenant’s argument was waived because nothing in the record indicated that the trial court was made aware that the tenant’s motion for reconsideration and memorandum in support thereof were filed, and thus, the statutory requirement of subsection A of § 8.01-384 was not met; because there was no evidence in the record that the trial court had the opportunity to rule upon the argument the tenant presented on appeal, the case could not be heard in the supreme court upon the same record upon which it was heard in the trial court and, therefore, the purpose of Va. Sup. Ct. R. 5:25 was defeated. Brandon v. Cox, 726 S.E.2d 298, 2012 Va. LEXIS 123 (Va. 2012), set aside, No. 111396, 2012 Va. LEXIS 178 (Va. Sept. 24, 2012), reprinted, 284 Va. 251 , 736 S.E.2d 695, 2012 Va. LEXIS 179 (2012).

    In an action to recover a security deposit, a tenant did not sufficiently preserve the tenant’s argument for appeal because the tenant did not preserve the issue at trial since neither the tenant’s written statement of facts nor the trial court’s order stated what argument was made at trial or what ruling was made. Brandon v. Cox, 284 Va. 251 , 736 S.E.2d 695, 2012 Va. LEXIS 179 (2012).

    Mother’s arguments were not preserved for appeal because the trial court’s rulings were not narrow enough to make obvious the basis of her “seen and objected to” objection, her counsel made no motion to strike, agreed to submit the evidence without closing argument, did not move to reconsider or set aside the verdict, did not make a closing argument or file post-trial pleadings or memorandum, and the “errata sheet” did not show where the mother preserved the issues and objected to the ruling. Smith v. Smith, 2013 Va. App. LEXIS 351 (Va. Ct. App. Dec. 3, 2013).

    Because defendant never argued before the trial court that he did not possess a firearm, the trial court was unable to intelligently address, examine, and resolve any arguments surrounding defendant’s actual or constructive possession of the firearm; consequently, consideration of the argument on appeal was barred. Bailey v. Commonwealth, 2014 Va. App. LEXIS 143 (Va. Ct. App. Apr. 15, 2014).

    Trial court did not err by prohibiting defendant from calling his former co-defendant as a witness because defendant’s proffer at trial failed to establish the relevance of this testimony and his post-trial proffer at sentencing was not sufficiently timely to have enabled the trial court to rule on its relevance and admissibility. Creamer v. Commonwealth, 64 Va. App. 185, 767 S.E.2d 226, 2015 Va. App. LEXIS 2 (2015).

    In a case where defendant was convicted by a jury of distribution of heroin, defendant waived her appeal of the trial court’s failure to give a distribution-for-accommodation instruction after she presented evidence at her sentencing hearing as she failed to reassert her request for the distribution-for-accommodation instruction after she presented additional evidence, which deprived the trial court of the opportunity to contemporaneously consider and rule on whether the instruction was appropriate. Porter v. Commonwealth, 66 Va. App. 302, 785 S.E.2d 224, 2016 Va. App. LEXIS 140 (2016).

    Defendant waived his argument that the evidence was insufficient to prove that he knowingly possessed drugs because when defendant renewed his motion to strike, which was a separate and distinct motion from his original motion to strike, he failed to inform the circuit court that one of the grounds upon which he relied was the lack of evidence proving scienter; instead, defendant focused only on whether the evidence proved that he possessed the drugs. McFadden v. Commonwealth, 2018 Va. App. LEXIS 270 (Va. Ct. App. Oct. 16, 2018).

    Sufficiency of proffer. —

    Where admissibility of evidence is challenged, the litigant must provide a proffer that is sufficiently detailed to give the trial judge a fair opportunity to resolve the issue correctly and contemporaneously; if the litigant believes his attempt to make a necessary proffer during trial has been unfairly restricted, he should make that known to the trial court and may advance that argument on appeal. Creamer v. Commonwealth, 64 Va. App. 185, 767 S.E.2d 226, 2015 Va. App. LEXIS 2 (2015).

    Exception to contemporaneous objection rule not applicable. —

    There was no basis from which to conclude that the trial court knew or should have known of defendant’s objection to the limitation of argument; defendant had the opportunity to make her objection known and nothing suggested that the trial court precluded her from making the requisite timely objection, and thus the exception to the contemporaneous objection rule was not applied and defendant’s challenge was waived. Miles v. Commonwealth, 2015 Va. App. LEXIS 311 (Va. Ct. App. Nov. 3, 2015).

    II.Decisions Under Prior Law.

    Editor’s note.

    Complete record sufficient to make error apparent. —

    Where a record consists of a joint petition for a declaratory judgment together with exhibits, and the judgment of the trial court, error, if there be error, is apparent upon the face of the record, as it stands. There is nothing which can be added to it by a bill of exceptions nor is a motion for a new trial necessary to give the appellate court jurisdiction of an appeal from the declaratory judgment. American Nat'l Bank & Trust Co. v. Kushner, 162 Va. 378 , 174 S.E. 777 , 1934 Va. LEXIS 252 (1934).

    When plaintiff waives right to assign cross-error. —

    While subsection B provides that a failure to make a motion for a new trial shall not be deemed a waiver of any objection made during the trial, if such objection be properly made a part of the record, when a plaintiff fails to renew its motion, fails to object to the instructions submitting the entire case to the jury, and fails to move the court to set aside the verdict and enter judgment for it, he waives his right to assign cross-error. Shenandoah Milling Co. v. Phosphate Prods. Corp., 161 Va. 642 , 171 S.E. 681 , 1933 Va. LEXIS 353 (1933).

    CIRCUIT COURT OPINIONS

    Sufficient actions to preserve issue for appeal. —

    In a defamation action, an objection to the pre-trial ruling that the statements were actionable was sufficient to preserve the issue under § 8.01-384 . Butler v. N.E.W. Customer Servs. Cos., 74 Va. Cir. 59, 2007 Va. Cir. LEXIS 73 (Fairfax County Apr. 24, 2007).

    Defendants’ right to assert that allegedly defamatory statements were not defamatory was preserved under § 8.01-384 , in spite of contemporaneous objection rule set forth in § 8.01-384 and Va. Sup. Ct. R. 5:25 and 5A:18, as defendants had argued a demurrer in which they asserted that the allegedly defamatory statements were not actionable, and the demurrer was overruled; that had defendants re-raised the issue at trial, a limiting instruction might have been fashioned that could have directed the jury as to which portions of each statement could be considered defamatory did not override the statute that expressly preserved defendants’ objections. Butler v. N.E.W. Customer Servs. Cos., Inc, 74 Va. Cir. 59, 2007 Va. Cir. LEXIS 90 (Fairfax County May 21, 2007).

    § 8.01-384.1. Interpreters for deaf or hard of hearing in civil proceedings.

    In any civil proceeding in which a speech-impaired person or a person who is deaf or hard of hearing is a party or witness, the court may appoint a qualified interpreter to assist such person in the proceeding. The court shall appoint an interpreter for any speech-impaired person or person who is deaf or hard of hearing who requests this assistance.

    Interpreters for the deaf and hard of hearing in these proceedings shall be procured through the Department for the Deaf and Hard-of-Hearing.

    Any person who is eligible for an interpreter pursuant to this section may waive the use of an interpreter appointed by the court for all or a portion of the proceedings. A person who waives his right to an interpreter may provide his own interpreter at his own expense without regard to whether the interpreter is qualified under this section.

    The compensation of interpreters appointed pursuant to this section shall be fixed by the court and paid from the general fund of the state treasury or may, in the discretion of the court, be assessed as a part of the cost of the proceedings.

    The provisions of this section shall apply in both circuit courts and district courts.

    History. 1982, c. 444; 2019, c. 288.

    Cross references.

    As to interpreters for the deaf in criminal cases in which a deaf person is the accused, see § 19.2-164.1 .

    The 2019 amendments.

    The 2019 amendment by c. 288, in the first paragraph, substituted “speech-impaired person or a person who is deaf or hard of hearing” for “speech-impaired or hearing-impaired person” twice; and in the second paragraph, inserted “and hard of hearing.”

    § 8.01-384.1:1. Interpreters for non-English-speaking persons in civil cases.

    1. In any trial, hearing or other proceeding before a judge in a civil case in which a non-English-speaking person is a party or witness, an interpreter for the non-English-speaking person may be appointed by the court. A qualified English-speaking person fluent in the language of the non-English-speaking person may be appointed by the judge of the court in which the case is to be heard unless the non-English-speaking person shall obtain a qualified interpreter of his own choosing who is approved by the court as being competent.
    2. To the extent of available appropriations, the compensation of such interpreter shall be fixed by the court in accordance with guidelines set by the Judicial Council of Virginia and shall be paid from the general fund of the state treasury as part of the expense of trial. The amount allowed by the court to the interpreter may, in the discretion of the court, be assessed against either party as a part of the cost of the case and, if collected, the same shall be paid to the Commonwealth.
    3. Whenever a person communicates through an interpreter to any person under such circumstances that the communications would be privileged, and such persons could not be compelled to testify as to the communications, this privilege shall also apply to the interpreter. The provisions of this section shall apply in circuit courts and district courts.

    History. 1996, c. 559; 2003, c. 1011.

    The 2003 amendments.

    The 2003 amendment by c. 1011, inserted “in accordance with guidelines set by the Judicial Council of Virginia” in the first sentence of subsection B; and substituted “circuit courts and” for “circuit, family and” in the last sentence of subsection C.

    OPINIONS OF THE ATTORNEY GENERAL

    Constitutionality. —

    The discretionary provision of state-funded interpreters to non-English-speaking persons for civil cases in courts of the seventeenth through the twentieth judicial districts and circuits does not violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. See opinion of Attorney General to The Honorable J.R. Zepkin, Judge, Ninth Judicial District, 99-079 (4/13/00).

    § 8.01-384.2. Waiver of discovery time limitations by parties.

    Parties involved in any civil litigation may, without court order and upon agreement of all of them or their counsel, waive any time limitations established by the Rules of the Virginia Supreme Court relating to any response to a motion or request for discovery or the scheduling of any discovery proceedings. The court shall allow any such waiver unless an order establishing discovery or filing deadlines has been entered previously by the court in the action.

    History. 1991, c. 75.

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Discovery, § 6.

    Chapter 14. Evidence.

    REVISERS’ NOTE

    The statutory provisions in the evidence chapter of Title 8 relating to discovery have been omitted from Title 8.01. This has been done since a revised part four of the Rules of Court has been promulgated, effective October 1, 1977, containing the substance of the repealed statutes. The sections involved are former §§ 8-111.1, 8-301 through 8-315, 8-316, and 8-317 through 8-327.2.

    The first three articles of the former evidence chapter (chapter sixteen, §§ 8-263 through 8-279.2) pertain generally to the evidentiary status of laws and records of this Commonwealth, other states, the United States, and other countries. A review of these 21 statutes revealed many out-dated provisions.

    Sections 8.01-385 through 8.01-391 address the same substantive matters formerly covered in those articles. While these sections preserve the substance of the former provisions, they also make several substantive amendments.

    Article 1. Judicial Notice.

    § 8.01-385. Definitions.

    As used in this chapter:

    1. The term   “United States”   shall be deemed to refer to the United States of America and to include any of its territories, commonwealths, insular possessions, the District of Columbia, and any of its other political subdivisions other than states.
    2. The term   “court”   shall be deemed to include the courts of this Commonwealth, any other person or body appointed by it or acting under its process or authority in a judicial or quasi-judicial capacity, and any other judicial, quasi-judicial, or fact-finding body acting pursuant to the laws of the Commonwealth, including without limitation, the State Corporation Commission and the Virginia Workers’ Compensation Commission.
    3. The term   “political subdivision”   shall: (i) as applied to the United States, include any other political subdivision other than states and including without limitation the District of Columbia and the Commonwealth of Puerto Rico; (ii) as applied to other countries, include without limitation states, counties, cities, towns, boroughs, and any division thereof recognized and vested with the authority to enact or promulgate ordinances, rules, and regulations having the force or effect of law; (iii) as applied to this Commonwealth and other states of the United States, include without limitation counties, cities, towns, boroughs, and any other division thereof recognized and vested with the authority to enact or promulgate ordinances, rules, and regulations having the force or effect of law.
    4. The term   “agency”   shall be deemed to include without limitation any department, division, commission, association, board, or other administrative body established pursuant to the laws of a jurisdiction.
    5. The term   “official publication”   includes any registry or listing of licenses, permits, or registrations posted on the official website of an agency or political subdivision.
    6. The term   “publish”   includes posting by an agency or political subdivision on its official website.
    7. The term   “required to be published pursuant to the laws thereof”   includes being subject to disclosure under § 54.1-108.

    History. 1977, c. 617; 2011, c. 81.

    REVISERS’ NOTE

    Definitions have been added.

    Former § 8-263 (This Code . . . to be evidence) has been deleted.

    The 2011 amendments.

    The 2011 amendment by c. 81 added subdivisions 5 through 7.

    Law Review.

    For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    § 8.01-386. Judicial notice of laws (Supreme Court Rule 2:202 derived in part from this section).

    1. Whenever, in any civil action it becomes necessary to ascertain what the law, statutory or otherwise, of this Commonwealth, of another state, of the United States, of another country, or of any political subdivision or agency of the same is, or was, at any time, the court shall take judicial notice thereof whether specially pleaded or not.
    2. The court, in taking such notice, may consult any book, record, register, journal, or other official document or publication purporting to contain, state, or explain such law, and may consider any evidence or other information or argument that is offered on the subject.

    History. Code 1950, §§ 8-264, 8-270, 8-273; 1960, c. 504; 1977, c. 617.

    REVISERS’ NOTE

    Under subsection A of § 8.01-386 all laws of the named jurisdictions are given equal status and courts of the Commonwealth shall take judicial notice thereof.

    The word “law,” as used in this section, includes statutes, ordinances, resolutions, judicial decisions, and administrative rulings and regulations of the respective jurisdictions. It is no longer necessary, for example, to prove ordinances of local cities or counties.

    Subsection B adopts the provision found in former § 8-273, which recognizes the right of the court to have the law researched and to hear any evidence with respect thereto.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    Law Review.

    For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977).

    For survey of Virginia law on evidence for the year 1977-1978, see 64 Va. L. Rev. 1451 (1978).

    For article on the admissibility of written health care standards in medical and hospital negligence actions in Virginia, see 18 U. Rich. L. Rev. 725 (1984).

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Automobiles, § 118.

    CASE NOTES

    When compliance with section not required. —

    In a proceeding under the Habitual Traffic Offender Act wherein a licensee who has been convicted of driving while intoxicated in two other states did not raise any challenge with respect to the similarity between the Virginia statute and the laws under which he had been convicted, it was unnecessary for the trial court to comply with this section. Davis v. Commonwealth, 219 Va. 808 , 252 S.E.2d 299, 1979 Va. LEXIS 173 (1979).

    Because citations to Utah usury law provided the court with sufficient information regarding the substance of Utah law on that subject pursuant to the choice of law provision of a loan agreement, the circuit court erred in refusing to apply such in construing that agreement. Thus, the judgment in favor of the debtor based on her claim of usury was reversed. Settlement Funding, LLC v. Neumann-Lillie, 274 Va. 76 , 645 S.E.2d 436, 2007 Va. LEXIS 85 (2007).

    Zoning ordinances. —

    Even though a part of an amendment to a zoning ordinance was not introduced or marked as an exhibit as required and, therefore, was not part of the record, the court could take judicial notice of the contents of the original and amended zoning ordinances. Hardy v. Board of Zoning Appeals, 257 Va. 232 , 508 S.E.2d 886, 1999 Va. LEXIS 14 (1999).

    Appellate court limitation on judicial notice. —

    An appellate court may not take judicial notice of such documents when they were not relied upon before the court or commission below. Commonwealth v. Woodward, 249 Va. 21 , 452 S.E.2d 656, 1995 Va. LEXIS 8 (1995).

    Decisions of courts. —

    Former version of this section, in effect, requires Virginia courts to take judicial notice of all of the decisions of all of the courts everywhere. In re Reid, 198 F. Supp. 689, 1961 U.S. Dist. LEXIS 3898 (W.D. Va. 1961), aff'd, 304 F.2d 351, 1962 U.S. App. LEXIS 4984 (4th Cir. 1962) (decided under prior law).

    Judicial notice of municipal ordinances. —

    Municipal and trial justice courts will take judicial notice of the existence of ordinances of the municipalities and counties within their own territorial jurisdiction. Sisk v. Town of Shenandoah, 200 Va. 277 , 105 S.E.2d 169, 1958 Va. LEXIS 185 (1958) (decided under prior law).

    The Supreme Court will not take judicial notice of a statute invoked there for the first time. It is required to take judicial notice only of statutes relied on in the trial court. Stevens v. Mirakian, 177 Va. 123 , 12 S.E.2d 780, 1941 Va. LEXIS 201 (1941) (decided under prior law).

    Legislative charters of private corporations. —

    The Supreme Court will not take judicial notice of the existence or contents of legislative charters of private corporations which were not relied on in the court below. Commonwealth v. Castner, Curran & Bullitt, Inc., 138 Va. 81 , 121 S.E. 894 , 1924 Va. LEXIS 12 (1924) (decided under prior law).

    § 8.01-387. Notice by courts and officers of signatures of judges and Governor.

    All courts and officers shall take notice of the signature of any of the judges, or of the Governor of this Commonwealth, to any judicial or official document.

    History. Code 1950, § 8-274; 1977, c. 617.

    Law Review.

    For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977).

    Michie’s Jurisprudence.

    For related discussion, see 7B M.J. Evidence, § 13.

    § 8.01-388. Judicial notice of official publications (Supreme Court Rule 2:203 derived from this section).

    The court shall take judicial notice of the contents of all official publications of this Commonwealth and its political subdivisions and agencies required to be published pursuant to the laws thereof, and of all such official publications of other states, of the United States, of other countries, and of the political subdivisions and agencies of each published within those jurisdictions pursuant to the laws thereof.

    History. 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-388 , based upon former § 8-272, provides for judicial notice generally of official publications required to be published by the laws of the respective jurisdictions.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    Law Review.

    For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977).

    Michie’s Jurisprudence.

    For related discussion, see 7B M.J. Evidence, §§ 16, 84, 87, 91.

    CASE NOTES

    Purpose of section. —

    This section and § 8.01-389 were intended to make competent evidence which had been theretofore incompetent. Proof at common law remained as it had theretofore been. P.R. Smith Motor Sales v. Lay, 173 Va. 117 , 3 S.E.2d 190, 1939 Va. LEXIS 180 (1939) (decided under prior law).

    This section is not exclusive and there may be an authentication under the common-law rule. McGuire v. Atlantic C.L.R.R., 136 Va. 382 , 118 S.E. 225 , 1923 Va. LEXIS 91 (1923); Southern Ry. v. Wilcox & DeJarnette, 99 Va. 394 , 39 S.E. 144 , 1901 Va. LEXIS 59 (1901) (decided under prior law).

    A certificate of title to an automobile, purporting to have been issued by another state, which did not meet the requirements of this section, was properly refused as evidence. Hague v. Valentine, 182 Va. 256 , 28 S.E.2d 720, 1944 Va. LEXIS 175 (1944) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Medicare/Medicaid surveys. —

    Judicial notice was properly taken under § 8.01-388 of the Virginia Department of Health’s (VDH) Medicare/Medicaid nursing home surveys as: (1) they were described as official documents in both the regulation mandating the disclosure of survey results and in the Medicare State Operations Manual; (2) they represented the VDH’s formal assessment of the quality of care at Medicare-supported facilities; (3) even though 42 C.F.R. § 488.325 did not require the surveys to be published, § 488.325 required that the documents be made available to the public. and (4) although Virginia law provided that the word publish included posting items on an agency’s website, it did not re-define the word to require Internet publication. Crouse v. Med. Facilities of Am. XLVIII, 86 Va. Cir. 168, 2013 Va. Cir. LEXIS 7 (Roanoke Jan. 22, 2013).

    Article 2. Laws, Public Records, and Copies of Original Records as Evidence.

    § 8.01-389. Judicial records as evidence; full faith and credit; recitals in deeds, deeds of trust, and mortgages; “records” defined; certification.

    1. The records of any judicial proceeding and any other official records of any court of this Commonwealth shall be received as prima facie evidence provided that such records are certified by the clerk of the court where preserved to be a true record. For the purposes of this section, judicial proceeding shall include the review of a petition and issuance of a temporary detention order under § 16.1-340.1 or 37.2-809 .
    2. Every court of this Commonwealth shall give such records of courts not of this Commonwealth the full faith and credit given to them in the courts of the jurisdiction from whence they come.
    3. Specifically, recitals of any fact in a deed or deed of trust of record conveying any interest in real property shall be prima facie evidence of that fact.
    4. “Records” as used in this article, shall be deemed to include any memorandum, report, paper, data compilation, or other record in any form, or any combination thereof.
    5. The use of the term “copy teste,” “true copy,” or “certified copy” or a substantially similar term on a certification affixed or annexed to a copy of an official record maintained by a clerk of court that bears the signature of the clerk or any deputy clerk, and that has the name of the court where such record is preserved on the document or on the certification, shall be prima facie proof that such record is certified by such clerk to be a true copy of the official record kept in the office of the clerk. Nothing herein shall be construed to require or prevent a clerk from using an official seal or prevent a clerk from using any other acceptable method of certification for a court record.
    6. The certification of any record pursuant to this section shall automatically authenticate such record for the purpose of its admission into evidence in any trial, hearing, or proceeding.

    A1. The records of any judicial proceeding and any other official record of any court of another state or country, or of the United States, shall be received as prima facie evidence provided that such records are certified by the clerk of the court where preserved to be a true record.

    B1. In any instance in which a court not of this Commonwealth shall have entered an order of injunction limiting or preventing access by any person to the courts of this Commonwealth without that person having had notice and an opportunity for a hearing prior to the entry of such foreign order, that foreign order is not required to be given full faith and credit in any Virginia court. The Virginia court may, in its discretion, hold a hearing to determine the adequacy of notice and opportunity for hearing in the foreign court.

    History. Code 1950, §§ 8-271, 8-275, 8-276, 8-276.1; 1977, c. 617; 1980, c. 453; 1995, c. 594; 1996, c. 417; 2008, c. 786; 2010, cc. 778, 825; 2013, c. 263.

    REVISERS’ NOTE

    Section 8.01-389 , based upon former §§ 8-271, 8-275, and 8-276.1 preserves the provisions of those sections; e.g., making recitals in a deed or deed of trust prima facie evidence of facts recited.

    Cross references.

    As to authority of the Secretary of the Commonwealth to certify records for use in other states, see § 2.2-404.

    As to officer of another state or country taking affidavit, see § 49-5 .

    The 2008 amendments.

    The 2008 amendment by c. 786 added the last sentence in subsection A.

    The 2010 amendments.

    The 2010 amendments by cc. 778 and 825 are identical and, inserted “16.1-340.1 or” in subsection A.

    The 2013 amendments.

    The 2013 amendment by c. 263 deleted “authenticated and” following “such records are” in the first sentence of subsection A; substituted “certified” for “authenticated” in subsection A1; and added subsections E and F.

    Law Review.

    For survey of Virginia law on domestic relations for the year 1974-1975, see 61 Va. L. Rev. 1732 (1975).

    For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977).

    For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

    For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

    For article, “Construction Law,” see 45 U. Rich. L. Rev. 227 (2010).

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Bankruptcy, § 124.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Authentication is merely the process of showing that a document is genuine and that it is what its proponent claims it to be. Owens v. Commonwealth, 10 Va. App. 309, 391 S.E.2d 605, 6 Va. Law Rep. 2336, 1990 Va. App. LEXIS 83 (1990).

    Circuit court did not err in admitting a general district court’s records because after the records were properly certified by the circuit court clerk, they became a part of the circuit court’s file, were properly authenticated when the circuit court clerk certified them, and were admissible as evidence. Snowden v. Commonwealth, 62 Va. App. 482, 749 S.E.2d 223, 2013 Va. App. LEXIS 303 (2013).

    Although clause (i) of subsection A of § 17.1-123 provides that an order book page shall be admissible when the judge’s signature is shown in the order, neither of the other permissible methods require that the judge’s signature appear on the individual order for it to be admissible. Hubbard v. Commonwealth, 2017 Va. App. LEXIS 186 (Va. Ct. App. Aug. 1, 2017).

    Circuit court did not err in admitting pages from an order book because it was maintained in conformity with clause (ii) of subsection A of § 17.1-123 ; even if subsection A of § 17.1-123 required that the identity of the presiding judge be ascertainable, the sequence of the various orders and the respective signatures of the judges indicated that one judge presided over the case under which his signature appeared and the other judge presided over the cases, including defendant’s, under which his signature appeared. Hubbard v. Commonwealth, 2017 Va. App. LEXIS 186 (Va. Ct. App. Aug. 1, 2017).

    Circuit court did not err in failing to admit a purported Iranian court order where the documents did not include a certification by the court clerk, were not true copies, and were not authenticated. Pourbabai v. Pourbabai, 2018 Va. App. LEXIS 233 (Va. Ct. App. Aug. 21, 2018).

    Court orders were properly admitted under subsection A, and since defendant had only assigned error to the admissibility of the orders, the authenticity of the records was not properly before the court of appeals. Raspberry v. Commonwealth, 71 Va. App. 19, 833 S.E.2d 894, 2019 Va. App. LEXIS 241 (2019).

    The terms “authenticated” and “certified” are basically synonymous, and the court of appeals is unwilling to place undue significance on the fact they are used in the conjunctive in the statute. Owens v. Commonwealth, 10 Va. App. 309, 391 S.E.2d 605 (1990), In accord with the bound volume, see Taylor v. Commonwealth, 28 Va. App. 1, 502 S.E.2d 113, 1998 Va. App. LEXIS 428 (1998).

    No requirement of certificate stating clerk’s independent knowledge of facts. —

    The words “authenticated and certified” do not require the attesting clerk to attach to the copy of the official document an additional certificate stating that he or she is aware of and/or has independent knowledge of the facts stated or offered therein; where the document was a certified copy properly attested to by a deputy clerk, and where the conviction order was stamped and undersigned by the deputy clerk, this was sufficient to “authenticate and certify” the document within the meaning of this section. Owens v. Commonwealth, 10 Va. App. 309, 391 S.E.2d 605, 6 Va. Law Rep. 2336, 1990 Va. App. LEXIS 83 (1990).

    Criminal docket entries. —

    Criminal docket entries were properly admissible as prima facie evidence of the public record of defendant’s criminal convictions in Maryland and, as public records, the contents of the records fell under an exception to the hearsay rule, subsection A1 of § 8.01-389 . Broward v. Commonwealth, 2003 Va. App. LEXIS 370 (Va. Ct. App. July 1, 2003).

    Foreign order properly certified. —

    A prior convictions order reflecting a defendant’s convictions in California complied with the requirements of this section and was properly admitted into evidence where the order was marked on the back with a stamp reading, “Allen Slater, Executive Officer and Clerk of the Superior Court of the State of California, in and for the County of Orange,” contained the seal of the Orange County Superior Court and was signed by “Flor L. Perez,” whose signature appeared next to the word, “Deputy.” Medici v. Commonwealth, 260 Va. 223 , 532 S.E.2d 28, 2000 Va. LEXIS 86 (2000), overruled in part, Townsend v. Commonwealth, 270 Va. 325 , 619 S.E.2d 71, 2005 Va. LEXIS 81 (2005).

    This section codifies as part of the written records exception to the hearsay rule judicial “records” which are properly authenticated. Taylor v. Commonwealth, 28 Va. App. 1, 502 S.E.2d 113, 1998 Va. App. LEXIS 428 (1998).

    Blood alcohol analysis photocopy admissible. —

    Where the Commonwealth introduced into evidence a certified photocopy of the defendant’s original certificate of analysis, previously identified by a Commonwealth witness as a “xeroxed copy of the original certificate for analysis,” it was proper under the statute, and defendant’s contention that the photocopy was hearsay and that only the original could be admitted was without merit. Ingram v. Commonwealth, Nos. 0721-95-4, 0722-95-4 (Ct. of Appeals Jan. 23, 1996).

    Juvenile court petition was properly admitted. —

    Juvenile court petition was properly admitted as evidence of a minor’s age for purposes of § 18.2-255 conviction as the legislature had determined that official records were admissible as prima facie evidence if properly authenticated; defendant did not challenge the authenticity of the petition or contend that it was not an official or judicial record. Eley v. Va., 2004 Va. App. LEXIS 532 (Va. Ct. App. Nov. 9, 2004).

    Even assuming the trial court erred in finding that a child protective services worker was a custodian of the record, a child’s removal petition and its attached affidavit, which were incorporated into that order, were nevertheless admissible and properly admitted to the record because a certified juvenile and domestic relations court order that incorporated the removal petition and its affidavit was added to the record. Lane-Alvis v. Richmond Dep't of Soc. Servs., 2018 Va. App. LEXIS 53 (Va. Ct. App. Mar. 6, 2018).

    Authenticated court order reliable evidence of juvenile status. —

    The recommended and customary practice of circuit courts in determining and recording in the authenticated conviction order a criminal defendant’s age or date of birth gives the recorded fact sufficient reliability and trustworthiness to render the order competent to prove accomplice’s age in prosecution under § 18.2-255 . Parker v. Commonwealth, No. 0406-93-1 (Ct. of Appeals Aug. 16, 1994).

    Juvenile court record of proceeding proved prior violent felony. —

    Juvenile and domestic relations district court records received under § 8.01-389 showed that defendant committed a prior violent felony as the petition alleged a violation of § 18.2-91 , which was a violent felony under § 17.1-805 , and the Record of Proceedings stated that defendant was convicted and referenced the only pending case. Preston v. Commonwealth, 2009 Va. App. LEXIS 603 (Va. Ct. App. Nov. 12, 2009), rev'd, 281 Va. 52 , 704 S.E.2d 127, 2011 Va. LEXIS 23 (2011).

    Sister state must have had jurisdiction. —

    A judgment entered in one state must be respected in another provided that the first state had jurisdiction over the parties and the subject matter. Nero v. Ferris, 222 Va. 807 , 284 S.E.2d 828, 1981 Va. LEXIS 377 (1981).

    Trial court did not err in granting summary judgment to the father in a child support action brought in Virginia on behalf of the mother; the father showed that the Illinois court had jurisdiction over the parties’ divorce and, thus, that the Illinois court’s rulings in the matter were entitled to full faith and credit in the Virginia courts, and the state social services department did not introduce evidence to rebut the presumption that the Illinois court had jurisdiction over the matter. Dep't of Soc. Servs., Div. of Child Support Enforcement, ex rel. Forsakringskassan Int'l Div.-US ex rel. Zackova v. Zacek, 2007 Va. App. LEXIS 15 (Va. Ct. App. Jan. 16, 2007).

    Jurisdiction of the sister state’s court is presumed unless disproved by extrinsic evidence or the record itself. Bloodworth v. Ellis, 221 Va. 18 , 267 S.E.2d 96, 1980 Va. LEXIS 210 (1980).

    And judgment is prima facie evidence. —

    The judgment of a court of general jurisdiction of a sister state duly authenticated is prima facie evidence of the jurisdiction of the court to render it. Bloodworth v. Ellis, 221 Va. 18 , 267 S.E.2d 96, 1980 Va. LEXIS 210 (1980).

    Party challenging the jurisdiction of a sister state’s court is under a heavy burden when attempting to establish the absence of that court’s jurisdiction. Bloodworth v. Ellis, 221 Va. 18 , 267 S.E.2d 96, 1980 Va. LEXIS 210 (1980).

    Court may inquire into sister state’s court’s jurisdiction. —

    As a general rule, a court, when asked to give effect to the judgment of a court in another state, may inquire into that court’s jurisdiction without offending the Full Faith and Credit Clause, notwithstanding the averments contained in the record of the judgment itself. Bloodworth v. Ellis, 221 Va. 18 , 267 S.E.2d 96, 1980 Va. LEXIS 210 (1980).

    A court being asked to domesticate a foreign judgment may inquire into the foreign court’s jurisdiction without offending the Full Faith and Credit Clause. This rule has special force when the jurisdictional question has not been fully and fairly litigated and finally determined in the court which rendered the original judgment. Nero v. Ferris, 222 Va. 807 , 284 S.E.2d 828, 1981 Va. LEXIS 377 (1981).

    Inquiry into credit given by originating state to judgment. —

    The language of this section makes it clear that it is appropriate to determine what credit the originating state would give its own judgment when that state is advised of the full circumstances surrounding the entry of the particular judgment. Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303, 5 Va. Law Rep. 1073, 1988 Va. LEXIS 157 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200, 1989 U.S. LEXIS 1991 (1989), cert. denied, 506 U.S. 855, 113 S. Ct. 164, 121 L. Ed. 2d 112 (1992).

    Enforcement of gambling debts. —

    The mandate of the Full Faith and Credit statute prevails over Virginia’s strongly-expressed policy which prohibits the enforcement of gambling debts. Coghill v. Boardwalk Regency Corp., 240 Va. 230 , 396 S.E.2d 838, 1990 Va. LEXIS 113 (1990).

    When relitigation barred. —

    A litigant is barred from relitigating in Virginia issues that were properly before and decided by a sister state’s court, even when the issues concern jurisdictional matters. Bloodworth v. Ellis, 221 Va. 18 , 267 S.E.2d 96, 1980 Va. LEXIS 210 (1980).

    Credit given to foreign state’s most recent order. —

    At defendant’s request, a California court entered a final order of divorce nunc pro tunc, dissolving wife’s first marriage and validating her subsequent marriage to defendant; upon subsequent proceedings on behalf of wife and the former husband, that court set aside the nunc pro tunc judgment; therefore, wife’s first marriage was still in effect, precluding husband from objecting to her testimony under § 19.2-271.2 , and giving effect to the California court’s most recent order was proper under subsection B of this section. Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303, 5 Va. Law Rep. 1073, 1988 Va. LEXIS 157 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200, 1989 U.S. LEXIS 1991 (1989), cert. denied, 506 U.S. 855, 113 S. Ct. 164, 121 L. Ed. 2d 112 (1992).

    County civil service commission proceeding was not a “court” for purposes of full faith and credit. Rao v. County of Fairfax, 108 F.3d 42, 1997 U.S. App. LEXIS 3704 (4th Cir. 1997).

    Trial court correctly sustained defendant’s plea of res judicata. —

    Where the administratrix’s failure to assert her counterclaim would have barred any later assertion of the same cause of action in any federal court, the trial court correctly sustained defendant’s plea of res judicata and dismissed the administratrix’s claim she later asserted in state court. Nottingham v. Weld, 237 Va. 416 , 377 S.E.2d 621, 5 Va. Law Rep. 1978, 1989 Va. LEXIS 45 (1989).

    Support judgment established paternity. —

    Pennsylvania support judgment was sufficient to establish paternity in a manner that was controlling for purposes of Virginia intestate succession. Hupp v. Hupp, 239 Va. 494 , 391 S.E.2d 329, 6 Va. Law Rep. 2046, 1990 Va. LEXIS 82 (1990).

    Recitation of fact of marriage in deeds. —

    Fact of marriage is important and well-drafted deeds commonly recite the marital status of grantors and grantees. However, the recitation is neither mandatory nor conclusive. In re Lakshmi Narsingh Sampath, 314 Bankr. 73, 2004 Bankr. LEXIS 1312 (Bankr. E.D. Va. 2004).

    Bond recognizance form authenticated. —

    Trial court did not err in admitting into evidence a bond recognizance form because it was relevant and admissible; the exhibit was indisputably properly certified and authenticated as a judicial record, and the Commonwealth explained why it was relevant. Garcia v. Commonwealth, 2016 Va. App. LEXIS 65 (Va. Ct. App. Mar. 1, 2016).

    Order held properly authenticated. —

    Nothing in subsection A required the Commonwealth to introduce a document that was signed by a judge who convicted defendant of rape to have that document considered by the trial court that convicted defendant of robbery, and the court that convicted defendant of robbery did not err when it considered documents that were not signed by the judge but were properly authenticated by his clerk. Seaton v. Commonwealth, 42 Va. App. 739, 595 S.E.2d 9, 2004 Va. App. LEXIS 165 (2004).

    Absent contrary evidence, the courts presumed that public officials properly discharged their official duties; even though an order showing defendant’s prior conviction did not show the trial judge’s signature, it was authenticated and certified by the clerk of the court, and became prima facie evidence of the conviction it showed. Brooks v. Commonwealth, 2005 Va. App. LEXIS 65 (Va. Ct. App. Feb. 15, 2005).

    Because authentication of court records by a deputy court clerk was equivalent to authentication by the court clerk, defendant’s prior conviction orders were properly authenticated and were admissible under § 8.01-390 , even though the boxes indicating the signatory’s title as either the clerk or the deputy clerk were not checked. Conley v. Commonwealth, 2005 Va. App. LEXIS 516 (Va. Ct. App. Dec. 20, 2005).

    Certificate of disposition was properly admitted into evidence as a court record because it certified that its contents accurately reflected the court’s records, it was affixed with the clerk’s official seal, and it was signed by the clerk; therefore, the requirements of the statute were met. Girard v. Commonwealth, 66 Va. App. 230, 783 S.E.2d 561, 2016 Va. App. LEXIS 116 (2016).

    Circuit court did not abuse its discretion in admitting court orders into evidence at defendant’s bench trial because the court orders met the requirements of the statute and bore prima facie proof that the circuit court clerk certified the records to be true copies; the court orders were certified pursuant to the statute, making them automatically authenticated for the purpose of admitting the records into evidence at trial. Raspberry v. Commonwealth, 71 Va. App. 19, 833 S.E.2d 894, 2019 Va. App. LEXIS 241 (2019).

    Order held not properly authenticated. —

    Where there was no evidence that signature on a county court order was by person authorized to act in place of the court clerk, the order was not properly authenticated and certified as required by this section and therefore should not have been admitted into evidence by the trial court. Carroll v. Commonwealth, 10 Va. App. 686, 396 S.E.2d 137, 7 Va. Law Rep. 191, 1990 Va. App. LEXIS 147 (1990).

    Defendant’s conviction for possession of a firearm after having been convicted of a violent felony in violation of subsection A of § 18.2-308.2 was reversed because the circuit court orders showing his prior convictions were not authenticated by a judge’s signature as required by subsection A of § 17.1-123 . Waller v. Commonwealth, 278 Va. 731 , 685 S.E.2d 48, 2009 Va. LEXIS 100 (2009).

    Authenticated court order reliable evidence of prior juvenile adjudication. —

    Evidence was sufficient to convict defendant of violating § 18.2-308.2 by possessing a firearm after having been adjudicated delinquent as a juvenile of an act that would have been a felony if committed by an adult, as a certified record of a juvenile probation order stated that the juvenile had been found to be delinquent of carrying a pistol into a public school in violation of § 18.2-308.1 , a Class 6 felony. Under § 8.01-389 , that certified order was prima facie proof of the facts stated therein. Wilder v. Commonwealth, 2008 Va. App. LEXIS 350 (Va. Ct. App. July 8, 2008).

    Authentication of date stamp on certificate of analysis. —

    As evidence of the date a certificate of analysis was filed with the clerk of the court, a court may take judicial notice of the identity of the date stamp employed by its clerk and such notice satisfies the authentication requirement of the statute and is sufficient to permit admission of the date stamp on the certificate as a judicial record. Taylor v. Commonwealth, 28 Va. App. 1, 502 S.E.2d 113, 1998 Va. App. LEXIS 428 (1998).

    Prior convictions. —

    Trial court did not abuse its discretion in admitting into evidence two prior conviction orders for drug related charges because, while one order noted that defendant had been sentenced under the accommodation provision and the other order contained a discrepancy that might have suggested defendant actually was convicted of simple possession, the orders were properly authenticated copies of court orders, were material and relevant to the question of whether or not defendant had two prior convictions, and had a tendency to prove that he had the requisite prior convictions. Covil v. Commonwealth, 2016 Va. App. LEXIS 169 (Va. Ct. App. May 17, 2016).

    Circuit court did not err in admitting into evidence the pages from an order book as proof of defendant’s prior convictions because the book was maintained in conformity with clause (ii) of subsection A of § 17.1-123 , and thus, the pages were admissible as the records of a judicial proceeding and as official records of a court of this Commonwealth; the signatures of both judges who presided in the circuit court where the prior convictions were rendered shown in the order book. Hubbard v. Commonwealth, 2017 Va. App. LEXIS 186 (Va. Ct. App. Aug. 1, 2017).

    Constitutional right to confrontation not violated. —

    Although the order showing the conviction for second degree murder of the person with whom the defendant left her deceased child was hearsay, as it was offered to prove the truth of the information it contained, it was admissible at the defendant’s trial for abuse and neglect of her child as it fell within the scope of § 8.01-389 , the judicial records exception to the hearsay rule. Palmer v. Commonwealth, 2003 Va. App. LEXIS 245 (Va. Ct. App. Apr. 22, 2003).

    Waiver of certification issue. —

    Appellate court refused to consider defendant’s claim that the trial court erred by admitting a copy of a National Crime Information Center printout into evidence without requiring that the printout be certified, because he failed to raise his claim that the printout had to be certified when he objected to its admission. Argenbright v. Commonwealth, 2003 Va. App. LEXIS 613 (Va. Ct. App. Nov. 25, 2003).

    Harmless error. —

    Assuming the trial court erred in admitting a prior conviction order that was signed digitally and was not a properly certified copy, any error was harmless because admitting the digitally signed conviction order had but very slight effect on the final decision; the trial court could have found that defendant had been convicted for driving while intoxicated on two other occasions by simply considering his DMV transcript that listed his convictions. Williams v. Commonwealth, 2015 Va. App. LEXIS 236 (Va. Ct. App. Aug. 4, 2015).

    No abuse of discretion. —

    Trial court did not abuse its discretion in failing to take judicial notice of an adjudicative fact that might have been dispositive because a former husband did not move to admit the other case into evidence. Barnes v. Barnes, 64 Va. App. 22, 763 S.E.2d 836, 2014 Va. App. LEXIS 359 (2014).

    II.Decisions Under Prior Law.

    Editor’s note.

    Policy of State as to foreign decrees. —

    A divorce decree rendered in Nevada against defendant in this State where constructive notice was relied upon will entitle the decree to be given full faith and credit under the policy of this State as declared by this section. Humphreys v. Humphreys, 139 Va. 146 , 123 S.E. 554 , 1924 Va. LEXIS 92 (1924).

    The requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the court of a sister state where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the state which rendered the decree. Evans v. Asphalt Rds. & Materials Co., 194 Va. 165 , 72 S.E.2d 321, 1952 Va. LEXIS 218 (1952).

    This section declares the policy of the State as to foreign decrees, and the records and judicial proceedings of the courts of the United States and its states, and provides that the same shall have faith and credit given to them in Virginia as they have in the courts of the state from whence such records came. Falco v. Grills, 209 Va. 115 , 161 S.E.2d 713, 1968 Va. LEXIS 204 (1968).

    Res judicata effect to be given foreign judgment. —

    The federal constitutional mandate, as implemented by Congress, requires every state to give a foreign judgment at least the res judicata effect which the judgment would be accorded in the state which entered it. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

    Full faith and credit given though judgment reflects hostile policies. —

    Subject to rare exceptions, the full faith and credit rule applies even though the sister state’s judgment reflects policies hostile to those of the forum state. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

    Full faith and credit in divorce cases. —

    Full faith and credit will be accorded a foreign divorce decree as to property and support rights, as well as to marital status, where the divorce court had personal jurisdiction over the parties. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

    When “divisible divorce” concept applicable. —

    The “divisible divorce” concept, under which full faith and credit is given to a foreign divorce decree as to dissolution of the marriage but not as to property or support rights when the decree is inconsistent with separate maintenance orders entered in the forum state, is applicable when the foreign divorce has been obtained in ex parte proceedings. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

    Full faith and credit will not be given to a child support order entered in another state in uncontested proceedings. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

    A Virginia court, having jurisdiction of the parties and of their minor children, may make a child support award without being bound by any previous award that may have been made in another state, and are not required to give full faith and credit to child custody decrees of another state. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

    No proof of change of circumstances is required before a Virginia court may make a child support award that differs from the award made in another state. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

    Full faith and credit in custody cases. —

    It can be stated as a general proposition that the courts throughout this country have been most reluctant to apply full faith and credit to custody cases. Falco v. Grills, 209 Va. 115 , 161 S.E.2d 713, 1968 Va. LEXIS 204 (1968).

    While it can be stated as a general proposition that the courts throughout this country have been most reluctant to apply full faith and credit to custody cases, the Supreme Court has never held that it would not apply full faith and credit in such a case. Addison v. Addison, 210 Va. 104 , 168 S.E.2d 281, 1969 Va. LEXIS 205 (1969).

    The prior ex parte appointment of a guardian in New York was not a judicial decree and not entitled, under either full faith and credit or comity, to control a later judicial proceeding in Virginia over the custody of a minor child. Falco v. Grills, 209 Va. 115 , 161 S.E.2d 713, 1968 Va. LEXIS 204 (1968).

    Plaintiff barred from relitigation. —

    Under Article IV, § 1 of the United States Constitution, 28 U.S.C. § 1738, and this section, plaintiff was barred from relitigating in Virginia matters properly adjudicated by court in another state. Osborne v. Osborne, 215 Va. 205 , 207 S.E.2d 875, 1974 Va. LEXIS 260 (1974).

    Proof of foreign deed of trust. —

    Where a foreign deed of trust, which was relied upon by defendant in answer to an attachment, was not filed with the answer, but was subsequently offered in evidence, it is so far a compliance with the policy of § 8.01-279 as to render it competent evidence for the defendant, without further proof, under this section, especially in the absence of any affidavit from the plaintiff denying its due execution. F.D. Cummer & Son Co. v. R.M. Hudson Co., 141 Va. 271 , 127 S.E. 171 , 1925 Va. LEXIS 406 (1925).

    Proof when not properly acknowledged. —

    A deed of trust not recorded in Virginia, nor acknowledged so that it could be recorded in Virginia, is receivable in evidence upon proper proof of the original under the common-law rule, and two affidavits showing that the deed was properly executed is such proper proof, where the affidavits were not objected to as being secondary evidence. F.D. Cummer & Son Co. v. R.M. Hudson Co., 141 Va. 271 , 127 S.E. 171 , 1925 Va. LEXIS 406 (1925).

    Effect of recitals made. —

    If the recitals in a deed from a commissioner of a court are sufficient to show that the sale was regularly made in accordance with the decrees of the court directing it, then by express terms of this section, the deed is prima facie evidence that such sale was regularly made and that the other recitals of the deed are true, and it is unnecessary to introduce any portion of the record in support of such recitals until such presumption has been overcome. Howard v. Landsberg's Comm., 108 Va. 161 , 60 S.E. 769 , 1908 Va. LEXIS 23 (1908).

    A deed containing all the essential recitals to bring it directly within the purview of this section, is prima facie evidence that the sale therein referred to was regularly made, and that the other recitals therein are true. Saunders v. Terry, 116 Va. 495 , 82 S.E. 68 , 1914 Va. LEXIS 56 (1914); Ashworth v. Cole, 180 Va. 108 , 21 S.E.2d 778, 1942 Va. LEXIS 150 (1942).

    Under this section a deed given by the trustee in a deed of trust to a purchaser at a sale under the deed of trust is prima facie evidence that the sale was regularly made and that the other recitals in such deed or conveyance are true. National Valley Bank v. Kanawha Banking & Trust Co., 151 Va. 446 , 145 S.E. 432 , 1928 Va. LEXIS 245 (1928).

    Recital in a deed from a trustee that the creditor requested execution of trust is prima facie true and must stand unless the contrary is proved by competent evidence. Willis v. Chesapeake W. Ry., 178 Va. 314 , 16 S.E.2d 649, 1941 Va. LEXIS 166 (1941).

    When a decree authorized the court commissioner to make a conveyance, if the defendant in a chancery suit did not himself make the conveyance by a certain date, a recital in the commissioner’s deed that the defendant had not made the conveyance, as the commissioner was informed by complainant, should, especially after the lapse of many years, be treated as a recital merely that the defendant had not made the conveyance. By this section this recital is prima facie true. Virginia & W. Va. Coal Co. v. Charles, 251 F. 83, 1917 U.S. Dist. LEXIS 780 (D. Va. 1917), aff'd, 254 F. 379, 1918 U.S. App. LEXIS 1313 (4th Cir. 1918).

    Recital in trustee’s deed that notice given deemed prima facie correct. —

    The recital in a deed from a trustee to a purchaser under a deed of trust that due and legal notice was given of the time, place and terms of sale is to be taken as prima facie correct under this section. Hopkins v. Givens, 119 Va. 578 , 89 S.E. 871 , 1916 Va. LEXIS 131 (1916).

    But validity of deed not affected by failure to so recite. —

    Where a deed executed by a trustee under a deed of trust does not recite that there was any notice of the terms of sale, as required by the deed of trust, the validity of the trustee’s deed is not affected by this section. Preston v. Johnson, 105 Va. 238 , 53 S.E. 1 , 1906 Va. LEXIS 30 (1906).

    Recital is sufficient proof of identity of heirs until overcome by other evidence. —

    A deed of conveyance in the chain of title stating that the grantors therein are all the heirs at law of an intestate decedent shall be prima facie evidence of that fact, which means that such a statement suffices for the proof of the identity of the heirs until the truth of the statement is contradicted and overcome by other evidence. The introduction of such a statement shifts the burden of going forward with the evidence to the litigant contending to the contrary. Hyson v. Dodge, 198 Va. 792 , 96 S.E.2d 792, 1957 Va. LEXIS 141 (1957).

    This section does not apply to conveyances by “power” or “power of attorney.” Virginia & W. Va. Coal Co. v. Charles, 251 F. 83, 1917 U.S. Dist. LEXIS 780 (D. Va. 1917), aff'd, 254 F. 379, 1918 U.S. App. LEXIS 1313 (4th Cir. 1918).

    CIRCUIT COURT OPINIONS

    Foreign state’s adoption decree upheld. —

    Under basic principles of comity and the Full Faith and Credit Clause, because there was no suggestion that a Pennsylvania court did not have jurisdiction, a Virginia court was required to give the Pennsylvania court’s adoption decree full faith and credit. However, the court applied Virginia law to a Virginia domiciliary’s intestate succession, under which the Pennsylvania adoptee, as his biological child, was entitled to inherit. In re Estate of Edwards, 77 Va. Cir. 351, 2009 Va. Cir. LEXIS 93 (Prince William County Jan. 14, 2009).

    Foreclosure deed. —

    Buyer was awarded possession of property in an unlawful detainer action because, inter alia, the deed of foreclosure was prima facie evidence that the buyer was entitled to possession and the occupant admitted that she maintained possession over the property; the buyer was not required to give any notice to vacate. Fannie Mae v. Harbin, 85 Va. Cir. 69, 2012 Va. Cir. LEXIS 99 (Virginia Beach Mar. 20, 2012).

    OPINIONS OF THE ATTORNEY GENERAL

    Facsimile copies of court records. —

    Authenticated copies of judicial records are admissible into evidence; however, a facsimile copy of a certified copy of a court record renders the authentication a copy, and it is not sufficient to establish compliance with § 8.01-391 . See opinion of Attorney General to The Honorable Robert N. Joyce, Jr., Commonwealth’s Attorney for Rockbridge County & the City of Lexington, 05-049 (7/21/05).

    § 8.01-390. Nonjudicial records as evidence (Subdivision (10)(a) of Supreme Court Rule 2:803 derived from subsection C of this section).

    1. Copies of records of this Commonwealth, of another state, of the United States, of another country, or of any political subdivision or agency of the same, other than those located in a clerk’s office of a court, shall be received as prima facie evidence, provided that such copies are authenticated to be true copies either by the custodian thereof or by the person to whom the custodian reports, if they are different. A digitally certified copy of a record provided pursuant to the provisions of Chapter 38.2 (§ 2.2-3817 et seq.) of Title 2.2, whether in electronic form or in print form with visible assurance of the digital signature, shall be deemed to be authenticated by the custodian of the record unless evidence is presented to the contrary.
    2. Records and recordings of 911 emergency service calls shall be deemed authentic transcriptions or recordings of the original statements if they are accompanied by a certificate that meets the provisions of subsection A and the certificate contains the date and time of the incoming call and the incoming phone number, if available, associated with the call.
    3. An affidavit signed by an officer deemed to have custody of such an official record, or by his deputy, stating that after a diligent search, no record or entry of such record is found to exist among the records in his office is admissible as evidence that his office has no such record or entry.

    History. 1977, c. 617; 1996, c. 668; 2000, c. 334; 2014, c. 353; 2017, c. 738.

    REVISERS’ NOTE

    Section 8.01-390 refers to those official records of a public entity that are neither published nor maintained in the office of a clerk of a court. Such official records are to be received as prima facie evidence provided they are doubly authenticated.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    The 2000 amendments.

    The 2000 amendment by c. 334, in subsection A, substituted “either by the custodian thereof or by” for “both by the custodian thereof and” and added “if they are different.”

    The 2014 amendments.

    The 2014 amendment by c. 353 added subsection B and redesignated former subsection B as subsection C.

    The 2017 amendments.

    The 2017 amendment by c. 738 added the second sentence in subsection A.

    Law Review.

    For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977).

    For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

    Michie’s Jurisprudence.

    For related discussion, see 7B M.J. Evidence, §§ 84, 91.

    CASE NOTES

    This section creates the “official written statements” exception to the hearsay rule. Under this exception, records and reports prepared by public officials pursuant to a duty imposed by statute, or required by the nature of their offices, are admissible as proof of the facts stated therein. Taylor v. Maritime Overseas Corp., 224 Va. 562 , 299 S.E.2d 340, 1983 Va. LEXIS 162 (1983).

    This section codifies the “official written documents exception” to the hearsay rule and, under that exception, records and reports prepared by public officials pursuant to a duty imposed by statute, or required by the nature of their office, are admissible as proof of the facts stated therein. Williams v. Commonwealth, 35 Va. App. 545, 546 S.E.2d 735, 2001 Va. App. LEXIS 285 (2001).

    This section has codified the official written documents exception recognized in Virginia for documents or copies of documents that are properly authenticated in accordance with its requirements. Ingram v. Commonwealth, 1 Va. App. 335, 338 S.E.2d 657, 1986 Va. App. LEXIS 204 (1986).

    Documents must relate facts within personal knowledge and observation of recording official. —

    Although a record or report may qualify as a public document, the hearsay objection is overcome only if the document relates facts or events within the personal knowledge and observation of the recording official to which he could testify should he be called as a witness. Taylor v. Maritime Overseas Corp., 224 Va. 562 , 299 S.E.2d 340, 1983 Va. LEXIS 162 (1983).

    And must be properly authenticated. —

    While a document qualified as an official document and thus would have been admissible under the exception to the hearsay rule created by this section, it still would be inadmissible where not authenticated properly pursuant to it. This section fixes a simple, easy way to authenticate an official document, and no reason suggests itself for excusing a failure to follow the prescribed course. Taylor v. Maritime Overseas Corp., 224 Va. 562 , 299 S.E.2d 340, 1983 Va. LEXIS 162 (1983).

    Double authentication necessary. —

    To comply with this section double authentication is necessary to prove genuineness as a prerequisite to admission of a copy. Proper authentication under this section requires not only certification of the copy as a true copy by the custodian of the record and the person to whom he reports, but also a showing that the persons certifying are indeed the custodian and the person to whom he reports. Ingram v. Commonwealth, 1 Va. App. 335, 338 S.E.2d 657, 1986 Va. App. LEXIS 204 (1986) (decided prior to 2000 amendment.).

    Proper authentication under this statute requires not only certification of the copy as a true copy by the custodian of the record and the person to whom he reports, but also a showing that the persons certifying are indeed the custodian and the person to whom he reports. Zubricki v. Motter, 12 Va. App. 999, 406 S.E.2d 672, 8 Va. Law Rep. 350, 1991 Va. App. LEXIS 193 (1991) (decided prior to 2000 amendment.).

    Custodian. —

    Law does not require the use of the specific words “custodian” or “person to whom the custodian reports” in order for a certification to meet the requirements of the official records exception; rather, the proponent of the evidence needs to provide the trial court with a basis to find that the person who authenticated the challenged document was the custodian or someone to whom the custodian reported in terms of their actual responsibilities and not merely his or her job title. Adjei v. Commonwealth, 63 Va. App. 727, 763 S.E.2d 225, 2014 Va. App. LEXIS 318 (2014).

    Section avoids inconvenience of requiring officials to be present. —

    The inconvenience of requiring public officials to appear in court and testify concerning the subject matter of their statements would be suffered not only by a declarant whose statements are sought to be introduced into evidence but also by the officials whose authentication is required by this section, viz., the custodian of the records containing the statements and the person to whom the custodian reports. Hence, the court appearance of none of these officials is required, provided the records are authenticated properly. Taylor v. Maritime Overseas Corp., 224 Va. 562 , 299 S.E.2d 340, 1983 Va. LEXIS 162 (1983).

    The official records exception allows the admission of certain official public documents, without the necessity of producing the record keeper, so long as the keeper or entrant had personal knowledge contained in those records and could be called to testify regarding them. Hooker v. Commonwealth, 14 Va. App. 454, 418 S.E.2d 343, 8 Va. Law Rep. 2979, 1992 Va. App. LEXIS 137 (1992).

    Documents held admissible. —

    Because authentication of court records under § 8.01-389 by a deputy court clerk was equivalent to authentication by the court clerk, defendant’s prior conviction orders were properly authenticated and were admissible even though the boxes indicating the signatory’s title as either the clerk or the deputy clerk were not checked. Conley v. Commonwealth, 2005 Va. App. LEXIS 516 (Va. Ct. App. Dec. 20, 2005).

    Records of Department of Motor Vehicles. —

    In light of the established “official written statements” exception to hearsay recognized in Virginia, one of the obvious purposes of the single authentication provision in former § 46.1-34.1 (now see § 46.2-215), rather than double authentication as required by this section, is to ease the burden on the Commissioner of Motor Vehicles in certifying records that are frequently utilized at trial. Ingram v. Commonwealth, 1 Va. App. 335, 338 S.E.2d 657, 1986 Va. App. LEXIS 204 (1986) (decided prior to 2000 amendments).

    Records of Department of Family Services. —

    Letters a Department of Family Services (DFS) sent to a mother relating to the execution of foster care plans were admissible in a termination of parental rights proceeding under § 8.01-390 , the official records exception to the hearsay rule, as the DFS social worker who authenticated them was the custodian of these documents and the records contained facts within her personal knowledge. Redditt v. Fairfax County Dep't of Family Servs., 2005 Va. App. LEXIS 3 (Va. Ct. App. Jan. 11, 2005).

    Records of Department of Social Services. —

    Statement contained in a foster care service plan were admissible, because the plan was prepared by a social worker in the course of her duties with the Charlottesville Department of Social Services, an agency of the Commonwealth. Burns v. Charlottesville Dep't of Soc. Servs., 2005 Va. App. LEXIS 90 (Va. Ct. App. Mar. 8, 2005).

    Records of Virginia Workers’ Compensation Commission. —

    Virginia Workers’ Compensation Commission did not err in finding that a certificate was not issued pursuant to § 65.2-710 because the certificate of authentication was issued pursuant to the general authority of the commission under §§ 8.01-390 and 8.01-391 , and the commission, which was acting pursuant to its legal authority when it entered the award for benefits to a workers’ compensation claimant as the agency responsible for workers’ compensation awards, had authority to issue a certificate without relying on § 65.2-710 ; the interpretation of a Virginia Workers’ Compensation Commission document is not left to the desires of a claimant, and the commission determines the nature of its orders and rulings. Hodnett v. Stanco Masonry, Inc., 58 Va. App. 244, 708 S.E.2d 429, 2011 Va. App. LEXIS 161 (2011).

    As the Virginia Workers’ Compensation Commission is an agency of the Commonwealth, subsection A of § 8.01-390 provides authority for the commission to issue a certificate for authentication purposes only, rather than for enforcement purposes under § 65.2-710 . Hodnett v. Stanco Masonry, Inc., 58 Va. App. 244, 708 S.E.2d 429, 2011 Va. App. LEXIS 161 (2011).

    Records from state police sex registry. —

    Defendant’s due process guarantees to confrontation under the Fourteenth Amendment were not violated by the admission of an affidavit of the custodian of records of a state police sex registry in defendant’s probation revocation proceeding as: (1) the affidavit was a document establishing the absence of an objective fact, (2) it was prepared in a non-adversarial setting, was not accusatory, and was not prepared in anticipation of litigation, (3) the sex offender registry was a neutral repository that reflected the objective results of a search of public records, (4) the affidavit summarized the official registry, which was mandated by § 19.2-390.1 , and (5) the affidavit fell within the official records exception to the hearsay rule under subsection B of § 8.01-390 [now subsection C of § 8.01-390 ]. Dickens v. Commonwealth, 52 Va. App. 412, 663 S.E.2d 548, 2008 Va. App. LEXIS 356 (2008).

    Foreign marriage certificate. —

    Appellate court declined to consider defendant’s appeal pursuant to Va. Sup. Ct. R. 5A:12(c)(1)(ii) because the trial court did not admit a purported certified copy of marriage record into evidence pursuant to subsection B of § 8.01-391 , and defendant did not raise an argument regarding subsection A of § 8.01-390 with the trial court. Jernigan v. Commonwealth, 2012 Va. App. LEXIS 319 (Va. Ct. App. Oct. 9, 2012).

    Letter from Division of Purchases and Supplies approving radar device for use by law-enforcement authorities was inadmissible as an exception to hearsay rule, since no evidence was presented as to regularity of preparation of letter, and letter was not shown to be an official public document. White v. Commonwealth, 2000 Va. App. LEXIS 103 (Va. Ct. App. Feb. 15, 2000).

    Document filed with public agency not admissible. —

    Where it was abundantly clear that the exhibit at issue, which was prepared by a representative of the defendant’s predecessor and filed with a state agency, was not prepared by a public official and did not reflect facts or events within the personal knowledge and observation of the recording official, the exhibit was not admissible under this section. Frank Shop, Inc. v. Crown Cent. Petroleum Corp., 261 Va. 169 , 540 S.E.2d 897, 2001 Va. LEXIS 17 (2001).

    Transcript of driving record authenticated under former § 46.1-34.1. —

    Former § 46.1-34.1 (now § 46.2-215) is the controlling statute on the issue of authentication of a transcript of defendant’s driving record. A statute of specific or particular application is not controlled or nullified by the statute of general application unless the Legislature clearly intended such a result. There is no such intent apparent between this section and former § 46.1-34.1 (now § 46.2-215). Ingram v. Commonwealth, 1 Va. App. 335, 338 S.E.2d 657, 1986 Va. App. LEXIS 204 (1986).

    Tax assessor’s strip file showing value of property was not admissible in evidence under official documents exception to hearsay rule, since this exception does not extend to statements not within the personal knowledge and observation of the recording official, nor does the exception permit the introduction of opinion evidence contained in any such records, and complainants did not establish that the commissioner of revenue had personal knowledge of the value of the property; in any event, that knowledge would only have been his opinion; therefore, the commissioner and trial court correctly excluded the evidence of the tax assessor’s strip file. Smith v. Woodlawn Constr. Co., 235 Va. 424 , 368 S.E.2d 699, 4 Va. Law Rep. 2626, 1988 Va. LEXIS 54 (1988).

    Duplicate originals of certificates of fingerprint analysis. —

    Since the duplicate originals of certificates of fingerprint analysis were as reliable and trustworthy as the originals, and the prosecution properly filed them with the clerk, they were admissible under § 19.2-187 . Compliance with this section was unnecessary. Lovak v. Commonwealth, No. 2001-93-4 (Ct. of Appeals March 14, 1995).

    Section inapplicable to best evidence issue. —

    Where the issue raised by the defendant concerned the admissibility of a copy of a certificate of analysis prepared by the state forensic laboratory, the issue was not hearsay, in that the original certificate of analysis was properly attested pursuant to § 19.2-187 by the forensic scientist who performed the analysis and prepared the certificate; rather, the defendant’s objection to the admission of the copy of the certificate of analysis raised a best evidence question governed by the terms of § 8.01-391 , not this section. Williams v. Commonwealth, 35 Va. App. 545, 546 S.E.2d 735, 2001 Va. App. LEXIS 285 (2001).

    Documents not admissible. —

    Finding in favor of the husband in the parties’ action for divorce was proper because the trial court did not err in rejecting certain documents since the national stamp and the certification did not meet the requirements of § 8.01-390 ; the documents were not authenticated as true copies by their custodian or by a person to whom the custodian reported. Without competent evidence of the character of the property, its ownership, and its value, the trial court did not classify or divide it. Parikh v. Parikh, 2011 Va. App. LEXIS 209 (Va. Ct. App. June 21, 2011).

    Documents admissible. —

    Trial court did not abuse its discretion in admitting documents from the United States Citizen and Immigration Services into evidence under the official written records exception to the rule against hearsay because the signee of the certification of documents was a custodian of defendant’s alien file; the Commonwealth presented sufficient proof for the trial court to conclude that the signee was a custodian of the file based upon the certification and letters accompanying the file. Adjei v. Commonwealth, 63 Va. App. 727, 763 S.E.2d 225, 2014 Va. App. LEXIS 318 (2014).

    What Auditor’s certificate signifies. —

    A certificate purporting to be made by the Auditor of the State, of land forfeited for nonpayment of taxes, being in the usual form in which he certifies papers from his office, is evidence of the execution of such certificate, and of the official character of the paper, and also of the facts therein contained. Usher v. Pride, 56 Va. (15 Gratt.) 190, 1858 Va. LEXIS 2 (1858) (decided under prior law).

    Paper certified must be from officer’s records. —

    This section does not authorize the Auditor of Public Accounts to give an ex parte certificate. A paper which does not purport to be a copy of any paper on file in his office is not admissible. Virginia & W. Va. Coal Co. v. Charles, 251 F. 83, 1917 U.S. Dist. LEXIS 780 (D. Va. 1917), aff'd, 254 F. 379, 1918 U.S. App. LEXIS 1313 (4th Cir. 1918) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Documents not admissible. —

    Document containing findings and recommended disposition of the United States Air Force Physical Evaluation Board proceedings regarding a servicemember’s discharge from the Air Force was largely statements of opinion that were not admissible as evidence under the public records exception to hearsay and could not be used by the servicemember to establish a causal connection between injuries she suffered in an accident and her discharge from the Air Force. Washington v. Clark, 83 Va. Cir. 329, 2011 Va. Cir. LEXIS 251 (Norfolk Sept. 7, 2011).

    § 8.01-390.1. School records as evidence.

    In a proceeding where a minor’s school records are material and otherwise admissible, copies of such school records shall be received as evidence in any matter, provided that such copies are authenticated to be true and accurate copies by the custodian thereof, or by the person to whom the custodian reports if they are different. An affidavit signed by the custodian of such records, or by the person to whom the custodian reports if they are different, stating that such records are true and accurate copies of such records shall be valid authentication for the purposes of this section. Except for copies of report cards and letters previously sent to parents, subjective information, including observations, comments or opinions shall be redacted, by the court, from any records prior to admittance of the records into evidence pursuant to this section. Any party seeking to introduce records authenticated by affidavit under this section shall deliver notice and a copy of such records to the other parties so that they are received not less than seven days prior to the introduction of such records.

    History. 2000, c. 558; 2009, c. 212; 2012, c. 499.

    The 2009 amendments.

    The 2009 amendment by c. 212, in the first sentence, inserted “such” preceding “school records” and added “or by the person to whom the custodian reports if they are different” at the end; inserted the second sentence; inserted “or by the person to whom the custodian reports if they are different” in the third sentence; and added the last sentence.

    The 2012 amendments.

    The 2012 amendment by c. 499, in the first sentence, substituted “are material and otherwise admissible” for “relating to attendance, transcripts or grades are material,” deleted “solely relating thereto” following “such school records” and “involving the custody of that minor or the termination of parental rights of that minor’s parents” following “in any matter” and inserted “and accurate” following “to be true” and deleted the second sentence, which formerly read: “All other school records in any matter involving custody or termination of parental rights may be authenticated to be true and accurate copies by the custodian thereof, or by the person to whom the custodian reports if they see different.”

    Law Review.

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    CASE NOTES

    Evidence from custodian of records of state police sex registry properly admitted. —

    Defendant’s due process guarantees to confrontation under the Fourteenth Amendment were not violated by the admission of an affidavit of the custodian of records of a state police sex registry in defendant’s probation revocation proceeding as: (1) the affidavit was a document establishing the absence of an objective fact; (2) it was prepared in a non-adversarial setting, was not accusatory, and was not prepared in anticipation of litigation; (3) the sex offender registry was a neutral repository that reflected the objective results of a search of public records; (4) the affidavit summarized the official registry, which was mandated by § 19.2-390.1 ; and (5) the affidavit fell within the official records exception to the hearsay rule under subsection B of § 8.01-390 [now subsection C of § 8.01-390 ]. Dickens v. Commonwealth, 52 Va. App. 412, 663 S.E.2d 548, 2008 Va. App. LEXIS 356 (2008).

    § 8.01-390.2. Reports by Chief Medical Examiner received as evidence.

    Reports of investigations made by the Chief Medical Examiner, his assistants or medical examiners, and the records and certified reports of autopsies made under the authority of Title 32.1, shall be received as evidence in any court or other proceeding, and copies of photographs, laboratory findings and reports in the office of the Chief Medical Examiner or any medical examiner, when duly attested by the Chief Medical Examiner or an Assistant Chief Medical Examiner, shall be received as evidence in any court or other proceeding for any purpose for which the original could be received without proof of the official character or the person whose name is signed thereto.

    History. 2003, c. 459.

    CASE NOTES

    Construction. —

    Statute provides an exception only to the evidentiary rule excluding hearsay evidence; its effect is to make reports of investigations of the medical examiner admissible as prima facie evidence of the facts stated therein, thus obviating the necessity of summoning as witnesses those persons performing the particular tests or investigations at issue. Lucas v. Riverhill Poultry, Inc., 300 Va. 78 , 860 S.E.2d 361, 2021 Va. LEXIS 74 (2021).

    Admission of evidence. —

    Statute does not provide an exception authorizing admission of expressions of opinion in a report that are derived from evidence that the jury is just as well-equipped as the medical examiner to consider and draw its own conclusions; however, if the evidence was such that the jurors were not capable of comprehending and forming an intelligent opinion about it, and drawing their own conclusions, the opinion testimony of an expert would be admissible, assuming it met all evidentiary requirements. Lucas v. Riverhill Poultry, Inc., 300 Va. 78 , 860 S.E.2d 361, 2021 Va. LEXIS 74 (2021).

    Exclusion of evidence proper. —

    Because the only investigation the assistant chief medical examiner was tasked with was to determine the cause and manner of a truck driver’s death, which, respectively, she reported as “Blunt Force Trauma of Head” and “Accident,” the circuit court properly permitted those portions of the medical examiner’s report as prima facie evidence of those facts without the need for her appearance or testimony, thereby effectuating the purpose of the statute. Lucas v. Riverhill Poultry, Inc., 300 Va. 78 , 860 S.E.2d 361, 2021 Va. LEXIS 74 (2021).

    § 8.01-390.3. Business records as evidence (Subdivision (6) of Supreme Court Rule 2:902 derived in part from this section).

    1. In any proceeding where a business record is material and otherwise admissible, authentication of the record and the foundation required by subdivision (6) of Rule 2:803 of the Rules of Supreme Court of Virginia may be laid by (i) witness testimony, (ii) a certification of the authenticity of and foundation for the record made by the custodian of such record or other qualified witness either by affidavit or by declaration pursuant to § 8.01-4.3 , or (iii) a combination of witness testimony and a certification.
    2. The proponent of a business record shall (i) give written notice to all other parties if a certification under this section will be relied upon in whole or in part in authenticating and laying the foundation for admission of such record and (ii) provide a copy of the record and the certification to all other parties, so that all parties have a fair opportunity to challenge the record and certification. The notice and copy of the record and certification shall be provided no later than 15 days in advance of the trial or hearing, unless an order of the court specifies a different time. Objections shall be made within five days thereafter, unless an order of the court specifies a different time. If any party timely objects to reliance upon the certification, the authentication and foundation required by subdivision (6) of Rule 2:803 of the Rules of Supreme Court of Virginia shall be made by witness testimony unless the objection is withdrawn.
    3. A certified business record that satisfies the requirements of this section shall be self-authenticating and requires no extrinsic evidence of authenticity.
    4. A copy of a business record may be offered in lieu of an original upon satisfaction of the requirements of subsection D of § 8.01-391 by witness testimony, a certification, or a combination of testimony and a certification.

    History. 2014, c. 398; 2017, c. 223.

    The 2017 amendments.

    The 2017 amendment by c. 223 deleted “civil” following “In any” at the beginning of subsection A.

    CASE NOTES

    Attorney fee affidavit. —

    In a case in which appellant challenged an order awarding $30,940 in attorney fees to appellee, the trial court did not err in awarding appellee’s fees based on his affidavits and proffers, even though appellant argued that appellee’s fee affidavits were hearsay and not authenticated pursuant to § 8.01-390.3 . There was no requirement that appellee had to submit his documents pursuant to § 8.01-390.3 .Youngson v. Brautigam, 2015 Va. App. LEXIS 250 (Va. Ct. App. Aug. 25, 2015).

    Medical records improperly admitted. —

    It was error to admit an alleged injured party’s medical records as business records because (1) the records were improperly authenticated, as a statement signed by the records’ custodian was not an affidavit under oath or an unsworn declaration under penalty of perjury but merely an acknowledgment before a notary public that the records were true and correct, (2) no foundation meeting the business-records exception was given, as the custodian’s statement did not attempt to satisfy the applicable rule, and (3) required advance notice was not given. Spruill v. Garcia, 298 Va. 120 , 834 S.E.2d 270, 2019 Va. LEXIS 146 (2019).

    Objection to evidence not sufficiently specific. —

    Although defendant argued for the first time on appeal that business transaction records were improperly admitted because the Commonwealth of Virginia did not establish that the records were relied upon in the ordinary course of business, the appellate court did not consider the argument because the objection was not specifically articulated in any manner to the trial court. Rather, the focus of defendant’s objection was based on the fact that the witness who introduced the records was not working at the store at the time of the transaction. Manning v. Commonwealth, 2017 Va. App. LEXIS 21 (Va. Ct. App. Jan. 31, 2017).

    § 8.01-391. Copies of originals as evidence (Subdivision (6) of Supreme Court Rule 2:902 derived in part from subsection D of this section and Supreme Court Rule 2:1005 derived from this section).

    1. Whenever the original of any official publication or other record has been filed in an action or introduced as evidence, the court may order the original to be returned to its custodian, retaining in its stead a copy thereof. The court may make any order to prevent the improper use of the original.
    2. If any department, division, institution, agency, board, or commission of this Commonwealth, of another state or country, or of the United States, or of any political subdivision or agency of the same, acting pursuant to the law of the respective jurisdiction or other proper authority, has copied any record made in the performance of its official duties, such copy shall be as admissible into evidence as the original, whether the original is in existence or not, provided that such copy is authenticated as a true copy either by the custodian of said record or by the person to whom said custodian reports, if they are different, and is accompanied by a certificate that such person does in fact have the custody.
    3. If any court or clerk’s office of a court of this Commonwealth, of another state or country, or of the United States, or of any political subdivision or agency of the same, has copied any record made in the performance of its official duties, such copy shall be admissible into evidence as the original, whether the original is in existence or not, provided that such copy is authenticated as a true copy by a clerk or deputy clerk of such court.
    4. If any business or member of a profession or calling in the regular course of business or activity has made any record or received or transmitted any document, and again in the regular course of business has caused any or all of such record or document to be copied, the copy shall be as admissible in evidence as the original, whether the original exists or not, provided that such copy is satisfactorily identified and authenticated as a true copy by a custodian of such record or by the person to whom said custodian reports, if they be different, and is accompanied by a certificate that said person does in fact have the custody. Such identification and authentication may be made through witness testimony or a certificate by affidavit or by declaration pursuant to § 8.01-4.3 , or a combination of witness testimony and a certificate. Copies in the regular course of business shall be deemed to include reproduction at a later time, if done in good faith and without intent to defraud. Copies in the regular course of business shall include items such as checks which are regularly copied before transmission to another person or bank, or records which are acted upon without receipt of the original when the original is retained by another party.
    5. The original of which a copy has been made may be destroyed unless its preservation is required by law or its validity has been questioned.
    6. The introduction in an action of a copy under this section precludes neither the introduction or admission of the original nor the introduction of a copy or the original in another action.
    7. Copy, as used in this section, shall include photographs, microphotographs, photostats, microfilm, microcard, printouts or other reproductions of electronically stored data, or copies from optical disks, electronically transmitted facsimiles, or any other reproduction of an original from a process which forms a durable medium for its recording, storing, and reproducing.

    History. Code 1950, §§ 8-266, 8-267, 8-268, 8-278, 8-279, 8-279.1, 8-279.2; 1950, pp. 604, 640; 1954, c. 333; 1968, c. 723; 1972, cc. 441, 549, 645, 786; 1973, c. 177; 1977, cc. 532, 617; 1978, c. 75; 1979, c. 447; 1989, c. 212; 1990, c. 355; 1991, c. 145; 1992, c. 393; 2000, c. 334; 2012, c. 802; 2014, c. 398.

    REVISERS’ NOTE

    Section 8.01-391 addresses the evidentiary status of copies of publications and records. Subsection A recognizes the authority of the court to exchange the original for a copy. Subsections B and C (now subsections B and D), respectively, place copies of official records covered by §§ 8.01-388 and 8.01-389 and business records on the same evidentiary footing as the original provided such copy is doubly authenticated.

    Cross references.

    As to admissibility in evidence of reproductions of checks or drafts drawn by the Treasurer of Virginia, see § 2.2-1812.

    As to vouchers and statement of assets on hand, see § 64.2-1311 .

    Editor’s note.

    Former § 8-266, one of the sections from which this § 8.01-391 derives, was amended by Acts 1977, c. 532. Since the substance of the amendment was already incorporated in § 8.01-391 as enacted by Acts 1977, c. 617, the Code Commission did not make any change in the above section pursuant to the amendatory act.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    The section catchline is set out above at the direction of the Virginia Code Commission in order to reflect the correct Supreme Court Rules from which it is derived.

    The 2000 amendments.

    The 2000 amendment by c. 334, in subsection B, substituted “either by the custodian of said record or” for “both by the custodian of said record and” and “such person” for “such officer.”

    The 2012 amendments.

    The 2012 amendment by c. 802 redesignated the former last sentence of subsection D as subsection E and redesignated former subsections E and F as subsections F and G; deleted “in the regular course of business” following “destroyed” in subsection E; and substituted “precludes neither” for “neither precludes” in subsection F.

    The 2014 amendments.

    The 2014 amendment by c. 398, in subsection D, added the second sentence.

    Law Review.

    For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977).

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Courts, §§ 23, 28.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Exception to best evidence rule. —

    This section, which concerns copies of originals as evidence, is a statutory exception to the best evidence rule and, under subsection B, provides that, when properly authenticated, copies made of their official records by governmental entities acting pursuant to the law of the respective jurisdiction or other proper authority are as admissible as the original records, whether the original records are in existence or not. Williams v. Commonwealth, 35 Va. App. 545, 546 S.E.2d 735, 2001 Va. App. LEXIS 285 (2001).

    Availability of original irrelevant. —

    Under subsection B of this section, a copy of an official record is admissible without regard to the availability of the original if the copy is properly authenticated. Williams v. Commonwealth, 35 Va. App. 545, 546 S.E.2d 735, 2001 Va. App. LEXIS 285 (2001).

    In order to admit a business record into evidence, it must be verified by testimony of the entrant of the record or of a superior who testifies to the regular course of business. Sparks v. Commonwealth, 24 Va. App. 279, 482 S.E.2d 69, 1997 Va. App. LEXIS 119 (1997).

    “True copy” construed. —

    The legislature intended for the term “true copy” as it appears in § 46.2-882 to be controlled by the requirements for authenticating a true copy found in subsection B of this section. Statutes must be construed consistently with each other so as to reasonably and logically effectuate their intended purpose. There is no conflict between this section and § 46.2-882; the former defines the requirements for authenticating a true copy, and the latter uses that term in a consistent manner. Untiedt v. Commonwealth, 18 Va. App. 836, 447 S.E.2d 537, 11 Va. Law Rep. 131, 1994 Va. App. LEXIS 561 (1994).

    Certified transfer order. —

    Trial court properly admitted a prior certified transfer order from a city indicating that the defendant had been convicted for burglary and a sentencing order describing the sentenced imposed for a burglary conviction because the city court’s attestation proclaimed that each document was a true copy of a record in the court and the documents certified were part of that court’s record. In addition, the court had sufficient evidence to conclude that defendant was a convicted felon and that he possessed contraband because the transfer order recited that the defendant had been found guilty of violating § 18.2-89 . Wilson v. Commonwealth, 2005 Va. App. LEXIS 26 (Va. Ct. App. Jan. 18, 2005), superseded, 46 Va. App. 408, 617 S.E.2d 431, 2005 Va. App. LEXIS 324 (2005).

    Photocopy lacking proper attestation inadmissible. —

    While certificate admitted as evidence of the accuracy of the tuning forks used to calibrate the radar device contained a notary public’s attestation, that attestation did not aver that the notary was the custodian of the original nor that she had (or had at the time) the original in her custody. Accordingly, the photocopy of the certificate was not a “true copy” within the meaning of the Code, but was, rather, inadmissible hearsay. Untiedt v. Commonwealth, 18 Va. App. 836, 447 S.E.2d 537, 11 Va. Law Rep. 131, 1994 Va. App. LEXIS 561 (1994).

    Trial court erred in admitting copies of certificates of tuning fork accuracy, which were offered into evidence to establish defendant’s speed, because, where the copies were not signed by the purported custodian or supervisor, they did not meet the requirements of §§ 8.01-391 and 46.2-882 for the admission of copies. Kollas v. Commonwealth, 2012 Va. App. LEXIS 349 (Va. Ct. App. Nov. 6, 2012).

    Attested blood alcohol analysis photocopy admissible. —

    Where the Commonwealth introduced into evidence a certified photocopy of the defendant’s original certificate of analysis, previously identified by a Commonwealth witness as a “xeroxed copy of the original certificate for analysis,” it was proper under the statute, and defendant’s contention that the photocopy was hearsay and that only the original could be admitted was without merit. Ingram v. Commonwealth, Nos. 0721-95-4, 0722-95-4 (Ct. of Appeals Jan. 23, 1996).

    Admissibility of copy of certificate of analysis. —

    Where the issue raised by the defendant concerned the admissibility of a copy of a certificate of analysis prepared by the state forensic laboratory, the issue was not hearsay, in that the original certificate of analysis was properly attested pursuant to § 19.2-187 by the forensic scientist who performed the analysis and prepared the certificate; rather, the defendant’s objection to the admission of the copy of the certificate of analysis raised a best evidence question, which was whether a copy of the certificate of analysis could be admitted into evidence in lieu of the original, and this issue was governed by the terms of this section. Williams v. Commonwealth, 35 Va. App. 545, 546 S.E.2d 735, 2001 Va. App. LEXIS 285 (2001).

    Trial court did not err in admitting into evidence a copy of the certificate of analysis, which identified the substance as cocaine, as it identified two other suspects by name, a check mark appeared next to defendant’s name, it included a photocopied stamp signed by a deputy clerk of the circuit court, and it displayed an original “Copy Teste” stamp and signature, authenticating the document as a copy made from court’s record. Carter v. Commonwealth, 2012 Va. App. LEXIS 417 (Va. Ct. App. Dec. 18, 2012).

    Subsection D was not applicable to carbon copies where the routine practice was that the carbon copies of the petty cash vouchers were made simultaneously with the original ink copies and were not as part of two separate events procedure which subsection D encompasses. Jackson v. Commonwealth, 13 Va. App. 599, 413 S.E.2d 662, 8 Va. Law Rep. 2019, 1992 Va. App. LEXIS 52 (1992).

    Authority to authenticate agency records. —

    Because every agency of the Commonwealth has authority to authenticate its records, the Virginia Workers’ Compensation Commission, likewise, has this authority. Hodnett v. Stanco Masonry, Inc., 58 Va. App. 244, 708 S.E.2d 429, 2011 Va. App. LEXIS 161 (2011).

    Virginia Workers’ Compensation Commission did not err in finding that a certificate was not issued pursuant to § 65.2-710 because the certificate of authentication was issued pursuant to the general authority of the commission under §§ 8.01-390 and 8.01-391 , and the commission, which was acting pursuant to its legal authority when it entered the award for benefits to a workers’ compensation claimant as the agency responsible for workers’ compensation awards, had authority to issue a certificate without relying on § 65.2-710 ; the interpretation of a Virginia Workers’ Compensation Commission document is not left to the desires of a claimant, and the commission determines the nature of its orders and rulings. Hodnett v. Stanco Masonry, Inc., 58 Va. App. 244, 708 S.E.2d 429, 2011 Va. App. LEXIS 161 (2011).

    Improper authentication. —

    It was error to admit an alleged injured party’s medical records as business records because (1) the records were improperly authenticated, as a statement signed by the records’ custodian was not an affidavit under oath or an unsworn declaration under penalty of perjury but merely an acknowledgment before a notary public that the records were true and correct, (2) no foundation meeting the business-records exception was given, as the custodian’s statement did not attempt to satisfy the applicable rule, and (3) required advance notice was not given. Spruill v. Garcia, 298 Va. 120 , 834 S.E.2d 270, 2019 Va. LEXIS 146 (2019).

    Juvenile court petition was properly admitted. —

    Even assuming the trial court erred in finding that a child protective services worker was a custodian of the record, a child’s removal petition and its attached affidavit, which were incorporated into that order, were nevertheless admissible and properly admitted to the record because a certified juvenile and domestic relations court order that incorporated the removal petition and its affidavit was added to the record. Lane-Alvis v. Richmond Dep't of Soc. Servs., 2018 Va. App. LEXIS 53 (Va. Ct. App. Mar. 6, 2018).

    Foreign marriage certificate. —

    Appellate court declined to consider defendant’s appeal pursuant to Va. Sup. Ct. R. 5A:12(c)(1)(ii) because the trial court did not admit a purported certified copy of marriage record into evidence pursuant to subsection B of § 8.01-391 , and defendant did not raise an argument regarding subsection A of § 8.01-390 with the trial court. Jernigan v. Commonwealth, 2012 Va. App. LEXIS 319 (Va. Ct. App. Oct. 9, 2012).

    Foreign court order. —

    Circuit court did not err in failing to admit a purported Iranian court order where the documents did not include a certification by the court clerk, were not true copies, and were not authenticated. Pourbabai v. Pourbabai, 2018 Va. App. LEXIS 233 (Va. Ct. App. Aug. 21, 2018).

    Continuance to permit authentication. —

    There was no abuse of discretion in the trial court’s granting the Commonwealth a continuance from 12:25 p.m. on October 20, to the start of trial on October 21, in order to allow the authentication of important papers. Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303, 5 Va. Law Rep. 1073, 1988 Va. LEXIS 157 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200, 1989 U.S. LEXIS 1991 (1989), cert. denied, 506 U.S. 855, 113 S. Ct. 164, 121 L. Ed. 2d 112 (1992).

    Bank vice-president, who had general supervisory authority over bank personnel but no direct supervision over the persons responsible for preparing or maintaining the bank’s records, was a person who could authenticate the bank’s records. She demonstrated knowledge of how the bank’s records were maintained in the regular course of its business and her testimony that she had access to the records established the trustworthiness and reliability of the bank’s records. Sparks v. Commonwealth, 24 Va. App. 279, 482 S.E.2d 69, 1997 Va. App. LEXIS 119 (1997).

    II.Decisions Under Prior Law.

    Editor’s note.

    Records and copies equally admissible. —

    Records furnishing evidence of title, and copies therefrom, equally with the originals, are admissible in evidence. Kelly v. Lehigh Mining & Mfg. Co., 98 Va. 405 , 36 S.E. 511 , 1900 Va. LEXIS 56 (1900).

    Duly certified copies of survey and plat for patent which are copies of records in the register’s office are made admissible under this section. Virginia & W. Va. Coal Co. v. Charles, 251 F. 83, 1917 U.S. Dist. LEXIS 780 (D. Va. 1917), aff'd, 254 F. 379, 1918 U.S. App. LEXIS 1313 (4th Cir. 1918).

    The mere fact that a record or report qualifies as a public document does not automatically overcome the hearsay objection unless the document relates facts or events within the personal knowledge and observation of the recording official to which he could testify should he be called as a witness. Williams v. Commonwealth, 213 Va. 45 , 189 S.E.2d 378, 1972 Va. LEXIS 300 (1972).

    Section applies only to authorized records. —

    An original grant from the Commonwealth was not then authorized to be recorded in the clerk’s office of any court so as to become a record in such clerk’s office. Accordingly, a certified copy from the clerk’s office could not be regarded as evidence of the original under this section. Matney v. Yates, 131 Va. 208 , 108 S.E. 578 , 1921 Va. LEXIS 17 (1921).

    Paper must be from official records and duly authenticated. —

    In a prosecution for statutory rape, the Commonwealth introduced a paper, allegedly signed by Federal officers in West Virginia, stating that prosecutrix was born on a certain date. The paper did not purport to be a copy of statistics from the official files of the Bureau of Census in Washington or the official records of West Virginia. It had the appearance of an official document but was not duly authenticated. It was held that, under the circumstances, the admission of the certificate as evidence constituted prejudicial error. Dotson v. Commonwealth, 170 Va. 630 , 196 S.E. 623 , 1938 Va. LEXIS 217 (1938).

    Admissibility of copy where original lost with other suit papers. —

    A copy of an original contract, the original being lost, made by counsel and filed with the bill of one of the parties to the contract, which bill alleged that the original had been filed with the answer of the party in another suit, although not authenticated by the certificate of the clerk of the court among the records of which the original was filed at the time such copy was made, is admissible in evidence. The fact that at the time such copy was filed it was not the best evidence and valid objection might have been made in that suit to its introduction in evidence, is immaterial, after the original has been lost, and this section has no application. Baber v. Baber, 121 Va. 740 , 94 S.E. 209 , 1917 Va. LEXIS 72 (1917).

    Effect of copy of recorded copy where original destroyed. —

    An original will and will-book having been destroyed, and a copy previously made from said will-book, and exhibited in a suit, having been withdrawn by leave and recorded, a copy from the copy thus recorded must be taken, prima facie, as a true copy of the will. Effinger v. Hall, 81 Va. 94 , 1885 Va. LEXIS 14 (1885).

    Form of attestation certificate not prescribed by this section. —

    Where the copy of a will is attested by “A. B. Buchanan, D. Clerk,” without saying for whom or for what county he is deputy clerk, but this is immediately followed by a copy of the order of probate which is attested by “A. B. Buchanan, deputy clerk for S. M. Graham, clerk of the circuit court of Tazewell County, Virginia,” it plainly appears that A. B. Buchanan is the deputy clerk of Tazewell County, authorized by law to act in place of his principal, and the copy of the will so authenticated is admissible in evidence under this section. The form of the attestation certificate is not prescribed by this section. Hurley v. Charles, 112 Va. 706 , 72 S.E. 689 , 1911 Va. LEXIS 140 (1911).

    Copy of arrest report as evidence. —

    The fact that this section provides that a copy of an arrest report filed with the Central Criminal Records Exchange may be admitted in evidence does not mean that all items in the report may be admitted for any purpose. Williams v. Commonwealth, 213 Va. 45 , 189 S.E.2d 378, 1972 Va. LEXIS 300 (1972).

    CIRCUIT COURT OPINIONS

    Authentication required. —

    Radar calibration certificate was inadmissible where the traffic court clerk did not make or create the certificate and could only provide a certified copy of whatever was introduced into evidence; the certification was not an authentication of a true copy by the creator of the original document as required by subsection B of this section. Commonwealth v. Boykins, 56 Va. Cir. 389, 2001 Va. Cir. LEXIS 321 (Newport News Sept. 5, 2001).

    Article 2.1. Check Clearing for the 21st Century Evidence Act.

    § 8.01-391.1. Substitute checks as evidence (Supreme Court Rule 2:1003 derived from subsections A and B of this section).

    1. A substitute check created pursuant to the federal Check Clearing for the 21st Century Evidence Act (Check 21 Act), 12 U.S.C. § 5001 et seq., shall be admissible in evidence in any legal proceeding, civil or criminal, to the same extent the original check would be.
    2. A document received from a banking institution that is designated as a “substitute check” and that bears the legend “This is a legal copy of your check. You can use it the same way you would use the original check” shall be presumed to be a substitute check created pursuant to the Check 21 Act.
    3. Any person who shall forge a substitute check or utter or attempt to employ as true any forged substitute check shall be punished as provided in § 18.2-172 .

    History. 2006, c. 127.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    Article 3. Establishing Lost Records, etc.

    § 8.01-392. When court order book or equivalent is lost or illegible, what matters may be reentered.

    When any book, microfilm record, or record in other form containing judgments, decrees, orders or proceedings of a court is lost, destroyed, or illegible, and there can be again entered correctly, by means of any writing, any matters which were in such book, such court may cause its clerk to have such matters reentered, and such reentries shall have the same effect as the original entries.

    History. Code 1950, § 8-280; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-392 is derived from former § 8-280, and anticipates future forms of records as well as present forms. The final sentence of former § 8-280 pertaining to the clerk’s compensation for such re-recording has been transferred to Title 14.1.

    Editor’s note.

    Title 14.1, referred to in the Revisers’ note above, was repealed by Acts 1998, c. 872. For location of comparable new sections, the comparable sections table in Volume 10 may be consulted.

    CASE NOTES

    Applicability. —

    Absent authentication and/or certification of exhibit, Commonwealth was required to follow either this section or § 8.01-394 to replace lost original conviction order. Johnson v. Commonwealth, No. 0348-98-4 (Ct. of Appeals June 22, 1999).

    § 8.01-393. When book or paper or equivalent in clerk’s office lost, destroyed, or illegible to be again recorded.

    When any such book, or any book, microfilm record, or record in other form containing the record of wills, deeds, or other papers, or any other paper filed in a clerk’s office, is lost, destroyed, or is illegible, the clerk in whose office such book or paper was, upon the production to him of any original paper which was recorded in such book, or of an attested copy of the record thereof, or of anything else in such book, or of any paper so filed, shall, on application, record the same anew. The record shall show whether it is made from an original or a copy, and how the paper from which it was made was authenticated or attested. Such record shall have, as far as may be, the same effect that the record or paper for which it is substituted would have had.

    History. Code 1950, § 8-281; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-393 derived from former § 8-281, also takes care of future forms of recording.

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Lost Instruments and Records, § 11.

    CASE NOTES

    Editor’s note.

    Effect of recording. —

    The act of the clerk admitting a paper to record is conclusive upon the question whether the paper is what it purports to be and evidence to prove that the copy was not certified by the clerk whose name is affixed to the certificate but by another person, who was not authorized to make the certificate, is inadmissible in a collateral action. Taliaferro v. Pryor, 53 Va. (12 Gratt.) 277, 1855 Va. LEXIS 19 (1855).

    When copy of a copy admissible. —

    A paper offered in evidence was a certified copy taken from a county deed book which was made from an attested copy in 1894, by which paper it was shown that the original deed was recorded in 1874, that a certified copy was made in 1883, and that this copy was recorded in 1894. The testimony of the clerk and custodian of the county deed books was that the book in which the original deed was recorded was not in existence. The copy was admissible under this section. Virginia & W. Va. Coal Co. v. Charles, 251 F. 83, 1917 U.S. Dist. LEXIS 780 (D. Va. 1917), aff'd, 254 F. 379, 1918 U.S. App. LEXIS 1313 (4th Cir. 1918).

    Original will and will-book having been destroyed, and a copy previously made from said will-book, and exhibited in a suit, having been withdrawn by leave and recorded, a copy from the copy thus recorded must be taken, prima facie, as a true copy of the will. Effinger v. Hall, 81 Va. 94 , 1885 Va. LEXIS 14 (1885).

    Copy from another county is inadmissible. —

    When a copy of a deed taken from the deed book of one county which shows that the record was made from the attested copy of the deed taken from the deed book of another county, this section does not apply, and as evidence of the transfer of title the copy was inadmissible. Virginia & W. Va. Coal Co. v. Charles, 251 F. 83, 1917 U.S. Dist. LEXIS 780 (D. Va. 1917), aff'd, 254 F. 379, 1918 U.S. App. LEXIS 1313 (4th Cir. 1918).

    When a copy of a deed was taken from a deed book of a certain county and it appeared from the county clerk’s certificate of admission to record that the paper presented to him was not the original deed, but was a copy, and no evidence was offered to show that any of the land conveyed lay in such county, the case did not come under the terms of either § 55-109 or this section and the copy was inadmissible. Virginia & W. Va. Coal Co. v. Charles, 251 F. 83, 1917 U.S. Dist. LEXIS 780 (D. Va. 1917), aff'd, 254 F. 379, 1918 U.S. App. LEXIS 1313 (4th Cir. 1918).

    § 8.01-394. How contents of any such lost record, etc., proved.

    1. Any person desirous of proving the contents of any such book, record, or other paper as is mentioned in either § 8.01-392 or § 8.01-393 , may file before the circuit court of the county or city in which such record, book, or other paper was a petition in writing, stating the nature of the record, book, or paper, the contents of which he desires to prove, and what persons may be affected by such proof. Thereupon the court shall appoint a time and place for proceeding on such petition, of which reasonable notice shall be given by him to all parties named in such petition, or interested in the proceedings, and to any others who shall be known to the court, or who shall claim to be so interested. If any party interested other than the petitioner, or who may be affected by the proof, be a person under a disability, the court shall appoint a guardian ad litem to represent his interest in the proceeding.
    2. The evidence upon said petition shall be in writing and filed, and the court shall make such order in respect to such record, book, or other paper, or anything therein, as may be necessary to secure the benefits thereof to the parties interested, or such other order as may be proper in the case.Before such court shall make such order, the petitioner shall cause to be served on the persons interested a notice in writing that he will apply for such order, in the manner provided by § 8.01-296 , at least ten days before such order is to be made; but if such persons, or any of them, do not reside in this Commonwealth, or after due diligence cannot be found therein, an order of publication may be issued as provided by §§ 8.01-316 and 8.01-317 .

    History. Code 1950, §§ 8-282, 8-283; 1977, c. 617.

    REVISERS’ NOTE

    Former §§ 8-282 and 8-283 are combined in § 8.01-394 . The only significant change is the removal of the requirement that the petition be referred to a commissioner.

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Lost Instruments and Records, § 11.

    CASE NOTES

    Editor’s note.

    Many of the cases cited below were decided under corresponding provisions of former law. The terms “this statute” and “this section,” as used below, may refer to former provisions.

    Applicability. —

    Absent authentication and/or certification of exhibit, Commonwealth was required to follow § 8.01-392 or this section to replace lost original conviction order. Johnson v. Commonwealth, No. 0348-98-4 (Ct. of Appeals June 22, 1999).

    Nature of statute. —

    This statute is only cumulative, and does not deprive the party of his remedy at common law. Smith v. Carter, 24 Va. (3 Rand.) 167, 1825 Va. LEXIS 13 (1825).

    A party is under no obligation to avail himself of the provisions of this section. It gives only a cumulative remedy. Smith v. Carter, 24 Va. (3 Rand.) 167, 1825 Va. LEXIS 13 (1825); Newcomb v. Drummond, 31 Va. (4 Leigh) 57, 1832 Va. LEXIS 33 (1832); Corbett v. Nutt, 59 Va. (18 Gratt.) 624, 1868 Va. LEXIS 28 (1868), aff'd, 77 U.S. 464, 19 L. Ed. 976, 1870 U.S. LEXIS 1140 (1871).

    After proof of loss of record of will, its contents may be established by parol and secondary evidence, such being the best proof the nature of the case admits of under this statute. Apperson v. Dowdy, 82 Va. 776 , 1 S.E. 105 , 1887 Va. LEXIS 145 (1887).

    Description of property and persons affected is jurisdictional. —

    Compliance with respect to naming the persons and describing the property which might be affected is necessary to give the court jurisdiction with regard to the subject matter, and the parties affected thereby. Mountain Mission School, Inc. v. White, 204 Va. 256 , 130 S.E.2d 452, 1963 Va. LEXIS 141 (1963).

    Notice to interested parties. —

    The statute, in order to be valid must be construed as being intended to meet the requirements for due process of law under the Constitutions of the Commonwealth of Virginia and the United States. It is elementary that every man is entitled to a day in court to defend his rights, and that a decree rendered against him when he has had no opportunity for defense, is a nullity and may be so pronounced by any court wherein it may be drawn into controversy. Mountain Mission School, Inc. v. White, 204 Va. 256 , 130 S.E.2d 452, 1963 Va. LEXIS 141 (1963).

    Effect of lapse of time. —

    Where 10 years after the destruction of a record, an effort is made to assail for the first time a title and possession long enjoyed, by proceedings to set up a lost will upon evidence of its contents, by a witness then 85 years old testifying that 68 years before she had heard the will read and stating the testamentary disposition of the testator’s property, the testimony, though admissible, is insufficient. Apperson v. Dowdy, 82 Va. 776 , 1 S.E. 105 , 1887 Va. LEXIS 145 (1887).

    § 8.01-395. Validating certain proceedings under § 8.01-394.

    All proceedings had in any case, under the provisions of § 8.01-394 , wherein a final judgment or decree has stood unimpeached for more than twenty years are declared to be valid and binding in all respects.

    History. Code 1950, § 8-284; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-284 has been changed to a general validating statute.

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Lost Instruments and Records, § 11.

    CASE NOTES

    Section only cures irregularities. —

    This section is a curative statute only created to provide a remedy in addition to that afforded by the common law. It applies where there have been irregularities in the set up proceeding, but not to a null and void proceeding. It was not intended to breathe life into a proceeding which never had any validity. Mountain Mission School, Inc. v. White, 204 Va. 256 , 130 S.E.2d 452, 1963 Va. LEXIS 141 (1963) (decided under prior law).

    And cannot validate void proceedings. —

    This section cannot give validity to a proceeding which was void because necessary parties were not joined and because the land description was not adequate. Not even the legislature may take property without due process of law. Mountain Mission School, Inc. v. White, 204 Va. 256 , 130 S.E.2d 452, 1963 Va. LEXIS 141 (1963) (decided under prior law).

    Article 4. Witnesses Generally.

    § 8.01-396. No person incompetent to testify by reason of interest, or because a party.

    No person shall be incompetent to testify because of interest, or because of his being a party to any civil action; but he shall, if otherwise competent to testify, and subject to the rules of evidence and practice applicable to other witnesses, be competent to give evidence in his own behalf and be competent and compellable to attend and give evidence on behalf of any other party to such action; but, in any case, the court, for good cause shown, may require any such person to attend and testify ore tenus and, upon his failure to so attend and testify, may exclude his deposition.

    History. Code 1950, § 8-285; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assignments, § 47.

    CASE NOTES

    Scope of section. —

    Former version of this statute was made to widen, and not to narrow the field of competency. Radford v. Fowlkes, 85 Va. 820 , 8 S.E. 817 , 1889 Va. LEXIS 94 (1889) (decided under prior law).

    Former version of this section removed common law disqualifications as to witnesses on account of interest or because a party. Robertson's Ex'r v. Atlantic Coast Realty Co., 129 Va. 494 , 106 S.E. 521 , 1921 Va. LEXIS 112 (1921) (decided under prior law).

    Applicable to parties as witnesses. —

    Under this section it is very clear the rule in respect to objections for incompetency on the ground of interest is equally applicable to parties examined as a witness as to those who are not parties. Hord v. Colbert, 69 Va. (28 Gratt.) 49, 1877 Va. LEXIS 53 (1877) (see Alspaugh v. Diggs, 195 Va. 1 , 77 S.E.2d 362 (1953). The cases cited above were decided under former version of this section).

    Virginia Board of Medicine erred in barring a physician’s expert testimony on the physician’s own behalf in a disciplinary proceeding because there was no reason not to apply the rule letting a qualified physician so testify in contested litigation to administrative proceedings. Va. Bd. of Med. v. Zackrison, 67 Va. App. 461, 796 S.E.2d 866, 2017 Va. App. LEXIS 69 (2017).

    Where plaintiff doctor was injured in a motor vehicle collision, and he had been qualified as a medical expert, even though he was a party in interest and he was not to perform the surgery, he was competent to express an opinion about his future medical needs. State Farm Mut. Auto. Ins. Co. v. Kendrick, 254 Va. 206 , 491 S.E.2d 286, 1997 Va. LEXIS 86 (1997).

    Volunteer to pay bond as competent witness. —

    One not a party to a bond, but who has agreed with the obligor to pay it, and has received from him money for that purpose, is a competent witness to prove payment, though he is interested. Wager v. Barbour, 84 Va. 419 , 4 S.E. 842 , 1888 Va. LEXIS 91 (1888) (decided under prior law).

    § 8.01-396.1. Competency of witness.

    No child shall be deemed incompetent to testify solely because of age.

    History. 1993, cc. 441, 605.

    Cross references.

    As to applicability of §§ 8.01-396.1 , 8.01-402 , 8.01-405 , and 8.01-407 through 8.01-410 to criminal cases, see § 19.2-267 .

    Michie’s Jurisprudence.

    For related discussion, see 20 M.J. Witnesses, § 9.

    CASE NOTES

    Child competent to testify in sexual penetration trial. —

    Child victim, in an action charging defendant with animate object sexual penetration of a child under the age of 13, was found competent to testify where she promised to tell the truth about what happened, she stated that it would be “bad” to do otherwise, she testified that she remembered the incidents, and her account of the incidents paralleled defendant’s version of the events. The fact that the victim had spoken to others about the incident did not, in itself, support the conclusion that she had no independent memory of the event or that her testimony was coached. Avalos v. Commonwealth, 2005 Va. App. LEXIS 241 (Va. Ct. App. June 21, 2005).

    Child witness competent. —

    Circuit court carefully considered the relevant factors and did not abuse its discretion in finding a child witness competent to testify because it found that the child witness demonstrated good observational and recall skills, was mature and highly competent, had good verbal skills, and knew the difference between the truth and lies; those findings were supported by the footage of the forensic interview, as well as testimony from other witnesses. Snead v. Commonwealth, 2021 Va. App. LEXIS 18 (Va. Ct. App. Feb. 2, 2021).

    CIRCUIT COURT OPINIONS

    Child’s testimony in molestation trial. —

    Defendants offered no evidence of an eight-year old child victim’s incapacity that would indicate that the child was not competent as a witness in a child molestation trial or that would require the assistance of mental health care professionals in determining the child’s competence. Commonwealth v. Gibson, 58 Va. Cir. 296, 2002 Va. Cir. LEXIS 41 (Spotsylvania County Mar. 5, 2002).

    § 8.01-397. Corroboration required and evidence receivable when one party incapable of testifying (subdivision (b)(5) of Supreme Court Rule 2:804 derived from this section).

    In an action by or against a person who, from any cause, is incapable of testifying, or by or against the committee, trustee, executor, administrator, heir, or other representative of the person so incapable of testifying, no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony. In any such action, whether such adverse party testifies or not, all entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue, may be received as evidence in all proceedings including without limitation those to which a person under a disability is a party. The phrase “from any cause” as used in this section shall not include situations in which the party who is incapable of testifying has rendered himself unable to testify by an intentional self-inflicted injury.

    For the purposes of this section, and in addition to corroboration by any other competent evidence, an entry authored by an adverse or interested party contained in a business record may be competent evidence for corroboration of the testimony of an adverse or interested party. If authentication of the business record is not admitted in a request for admission, such business record shall be authenticated by a person other than the author of the entry who is not an adverse or interested party whose conduct is at issue in the allegations of the complaint.

    History. Code 1950, § 8-286; 1977, c. 617; 1988, c. 426; 2013, cc. 61, 637.

    REVISERS’ NOTE

    Former § 8-286 has been amended to provide that it applies to proceedings in which a person under a disability is a party. Also, the receiving as evidence of the entries, etc., of the person incapable of testifying shall no longer be contingent on the adverse party’s testifying.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    The 2013 amendments.

    The 2013 amendments by cc. 61 and 637 are identical, and added the second paragraph.

    Law Review.

    For note on this section, see 39 Va. L. Rev. 396 (1953).

    For note on nature and degree of corroboration required, see 39 Va. L. Rev. 397 (1953).

    For note, “Erosion of the Hearsay Rule,” see 3 U. Rich. L. Rev. 91 (1968).

    For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977).

    For 1995 survey of civil practice and procedure, see 29 U. Rich. L. Rev. 897 (1995).

    For an article, “Civil Practice and Procedure,” see 32 U. Rich. L. Rev. 1009 (1998).

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For annual survey article, “Civil Practice and Procedure,” see 46 U. Rich. L. Rev. 9 (2011).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assignments, § 47.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Purpose. —

    One of the purposes of this section is to prevent a surviving party from having the benefit of his own testimony where, by reason of the death of his adversary, the latter’s personal representative is deprived of the decedent’s version of the transaction. Hereford v. Paytes, 226 Va. 604 , 311 S.E.2d 790, 1984 Va. LEXIS 302 (1984).

    The statute was designed to prevent an opportunity for the survivor to prevail by relying on his own unsupported credibility, while his opponent, who alone might have contradicted him, is silenced by death. Hereford v. Paytes, 226 Va. 604 , 311 S.E.2d 790, 1984 Va. LEXIS 302 (1984).

    The statute substitutes a requirement that testimony be corroborated in place of the harsher common law rule which disqualified the surviving witness for interest. Diehl v. Butts, 255 Va. 482 , 499 S.E.2d 833, 1998 Va. LEXIS 65 (1998).

    Phrase “from any cause” does not refer to the scope of issues before the tribunal, but rather to the cause of a party’s incapacity to testify. Shumate v. Mitchell, 296 Va. 532 , 822 S.E.2d 9, 2018 Va. LEXIS 195 (2018).

    Dead Man’s Statute contains two distinct, but related, evidentiary rules applicable in actions by or against persons incapable of testifying or their representatives; any relevant hearsay declaration of the decedent or incapacitated person is admissible even if the survivor does not testify. Shumate v. Mitchell, 296 Va. 532 , 822 S.E.2d 9, 2018 Va. LEXIS 195 (2018).

    Adverse party and interested party distinguished. —

    The phrase “adverse or interested party” refers to two, distinct categories of persons, namely “adverse” parties and “interested” parties; an “adverse party” is one who is a party to the record while an “interested party” is one, not a party to the record, who is pecuniarily interested in the result of the suit. Stephens v. Caruthers, 97 F. Supp. 2d 698, 2000 U.S. Dist. LEXIS 6507 (E.D. Va. 2000).

    Interested party. —

    A person is an “interested party” when that person is in some way beneficially interested in the judgment or decree that is sought to be obtained. In that regard, a person has a beneficial interest in litigation where, inter alia, that person has an interest in the property concerned in the litigation that may be benefited or adversely affected by the result of the suit or a beneficial interest in the fund sought to be recovered. Stephens v. Caruthers, 97 F. Supp. 2d 698, 2000 U.S. Dist. LEXIS 6507 (E.D. Va. 2000).

    Dead Man’s Statute contains two distinct, but related, evidentiary rules applicable in actions by or against persons incapable of testifying or their representatives; no judgment may be rendered for a testifying survivor unless his or her testimony is corroborated, and this corroboration requirement is inapplicable when another interested party whose interest derives from the decedent or incapacitated person testifies on that person’s behalf. Shumate v. Mitchell, 296 Va. 532 , 822 S.E.2d 9, 2018 Va. LEXIS 195 (2018).

    Exception to defend against testimony of other interested party. —

    An exception to the bar of testimony by an interested party against a deceased party allows such testimony where some person, having an interest in or under a contract or transaction derived from the party so incapable of testifying, has testified in behalf of the latter or of himself, as to such contract or transaction. Paul v. Gomez, 118 F. Supp. 2d 694, 2000 U.S. Dist. LEXIS 15751 (W.D. Va. 2000).

    The Virginia dead man’s statute did not apply to prevent a defendant physician from testifying to his version of the treatment he gave his patient where the patient was deceased but where the patient’s wife was present at the meetings between her husband and the physician and would testify as to the alleged negligent treatment. Paul v. Gomez, 118 F. Supp. 2d 694, 2000 U.S. Dist. LEXIS 15751 (W.D. Va. 2000).

    Spouse who will benefit financially an “interested party.” —

    Where the party to the record in a will contest asserts that she is entitled to recover from a testator’s estate on the grounds that the testator had previously executed a joint and reciprocal will and declares that her spouse will share in the inheritance should the contest succeed, the spouse is an “interested party” whose testimony may not serve as corroborating evidence under the dead man’s statute. Stephens v. Caruthers, 97 F. Supp. 2d 698, 2000 U.S. Dist. LEXIS 6507 (E.D. Va. 2000).

    Corroboration unnecessary where witness is not “interested party.” —

    Testimony elicited from a nurse regarding an order she received from a subsequently deceased doctor during the delivery of an infant did not require corroboration as the nurse was not an “interested party” for purposes of § 8.01-397 ; the testimony the nurse gave left her potentially liable under a contribution theory, and in any event, the testimony she gave regarding the order to apply fundal pressure was neutral regarding the dispositive issue in the case, whether the order was given before or after the doctor had managed to free the infant’s shoulder from the birth canal. Jones v. Williams, 280 Va. 635 , 701 S.E.2d 405, 2010 Va. LEXIS 259 (2010).

    The dead man’s statute (this section) is inapplicable in instances where a plaintiff offers an adverse party’s testimony in his case and that testimony is not contradicted or inherently improbable. Brown v. Metz, 240 Va. 127 , 393 S.E.2d 402, 6 Va. Law Rep. 2658, 1990 Va. LEXIS 88 (1990).

    Argument that dead man’s statute (this section) was not applicable because the jury ultimately returned a verdict in favor of the plaintiff and, thus, no judgment was “rendered in favor of an adverse or interested party” was without merit because under this analysis, a trial court would be required to wait until after the jury rendered a verdict before determining whether a party’s testimony must be corroborated. Certainly this section does not mandate this illogical procedure. Diehl v. Butts, 255 Va. 482 , 499 S.E.2d 833, 1998 Va. LEXIS 65 (1998).

    The deadman’s statute (this section) is an evidentiary rule inapplicable to hearings before the Industrial (now Workers’ Compensation) Commission. Armada, Inc. v. Lucas, 2 Va. App. 414, 345 S.E.2d 14, 1986 Va. App. LEXIS 288 (1986).

    This section does not apply to hearings before Industrial (now Workers’ Compensation) Commission, and Rule 1 (see now Rule 2.2) of the Commission, enacted pursuant to former § 65.1-18 (now § 65.2-201 ), correctly permits the use of hearsay evidence without corroboration. Franklin Mtg. Corp. v. Walker, 5 Va. App. 95, 360 S.E.2d 861, 4 Va. Law Rep. 674, 1987 Va. App. LEXIS 222 (1987).

    This section’s application will not be extended to criminal proceedings arising out of the alleged forgery of checks on an account once held by a decedent since the person incapable of testifying is not a party to such proceedings. Bowman v. Commonwealth, 28 Va. App. 204, 503 S.E.2d 241, 1998 Va. App. LEXIS 444 (1998).

    Section inapplicable to limited liability corporation. —

    In an action to determine rights to certain real property between an LLC and an alleged widow of a previous co-tenant of that property, the dead man’s statute did not apply to the LLC because the litigation was not one brought by or against the decedent’s estate or trust. 1924 Leonard Rd., L.L.C. v. Van Roekel, 272 Va. 543 , 636 S.E.2d 378, 2006 Va. LEXIS 114 (2006).

    In an action for specific performance of the decedent’s oral promise to devise his property, this section made the decedent a witness in any action by or against his personal representative as to any relevant evidence which he could have given had he been alive at the time of trial. Adams v. Adams, 233 Va. 422 , 357 S.E.2d 491, 3 Va. Law Rep. 2676, 1987 Va. LEXIS 210 (1987).

    Confidential relationship and evidentiary burdens. —

    In a suit brought by an estate against the decedent’s son for breach of fiduciary duty, conversion, unjust enrichment, and detinue, the trial court erred in holding that a confidential relationship did not exist with respect to self-dealing transactions by the son involving the joint bank account since the son was an agent of the decedent and, because he contributed none of the funds to the joint account, a confidential relationship existed establishing a fiduciary duty that created a presumption that the self-dealing transactions were unduly obtained. Flowing from that error, the trial court then erred in application of the evidentiary burdens regarding proof of undue influence and corroboration necessary under the dead man’s statute, § 8.01-397 . Estate of Parfitt v. Parfitt, 277 Va. 333 , 672 S.E.2d 827, 2009 Va. LEXIS 33 (2009).

    Statute does not disqualify previously competent witnesses. —

    No corroboration is required of those witnesses who were competent before the Code of 1919 became operative, adopting the present version of the dead man’s statute, and who did not then require corroboration. Paul v. Gomez, 118 F. Supp. 2d 694, 2000 U.S. Dist. LEXIS 15751 (W.D. Va. 2000).

    Relevance. —

    Excluding from evidence the decedent’s declarations disavowing a deed of gift and bill of sale was error as it was relevant, and thus admissible under the hearsay exception set forth in § 8.01-397 . Gelber v. Glock, 293 Va. 497 , 800 S.E.2d 800, 2017 Va. LEXIS 93 (2017).

    B.Corroboration.

    What constitutes corroboration. —

    Corroborating evidence is such evidence as tends to confirm and strengthen the testimony of the witness sought to be corroborated — that is, such as tends to show the truth, or the probability of its truth. Penn v. Manns, 221 Va. 88 , 267 S.E.2d 126, 1980 Va. LEXIS 218 (1980).

    Corroboration depends on facts of each case. —

    In considering whether the testimony of an adverse or interested party has been corroborated, it is not possible to formulate any hard and fast rule, and each case must be decided upon its own facts and circumstances. Penn v. Manns, 221 Va. 88 , 267 S.E.2d 126, 1980 Va. LEXIS 218 (1980).

    It is impossible to formulate a fixed rule as to the corroboration necessary in every situation because each case must be decided on its particular facts. Rice v. Charles, 260 Va. 157 , 532 S.E.2d 318, 2000 Va. LEXIS 95 (2000).

    When confidential relationship existed between parties at time of transaction which gave rise to the cause of action, a higher degree of corroboration is necessary to satisfy the requirements of this section. Diehl v. Butts, 255 Va. 482 , 499 S.E.2d 833, 1998 Va. LEXIS 65 (1998).

    Confirmation is not necessary, for that removes all doubt, while corroboration only gives more strength than was had before. Penn v. Manns, 221 Va. 88 , 267 S.E.2d 126, 1980 Va. LEXIS 218 (1980).

    Not needed as to all material points. —

    It is not essential that an adverse or interested party’s testimony be corroborated on all material points. Penn v. Manns, 221 Va. 88 , 267 S.E.2d 126, 1980 Va. LEXIS 218 (1980).

    It is not essential that a survivor’s testimony be corroborated on all material points. Rice v. Charles, 260 Va. 157 , 532 S.E.2d 318, 2000 Va. LEXIS 95 (2000).

    Corroboration not necessary for interested party. —

    Exception to the corroboration requirement was inapplicable because a passenger was not an interested party; the passenger lacked a pecuniary interest in the outcome of the litigation because he did not represent or otherwise have a stake in the decedent’s estate, regardless of the result, and would will remain financially indifferent. Shumate v. Mitchell, 296 Va. 532 , 822 S.E.2d 9, 2018 Va. LEXIS 195 (2018).

    Corroboration may be established by circumstantial evidence. This corroboration need not independently establish the fact but must itself tend in some degree to support an issue essential to the case which, if unsupported, would be fatal to the case. Cooper v. Cooper, 249 Va. 511 , 457 S.E.2d 88, 1995 Va. LEXIS 61 (1995).

    Evidence from opposing party considered. —

    Where a party moved to strike a personal injury litigant’s evidence for failure to corroborate as required by the dead man’s statute (§ 8.01-397 ) and the trial court deferred ruling until after the opposing party’s witness had testified, the trial court and appellate court could both consider both parties’ evidence in determining if there was satisfaction of the corroboration requirement; it was found that testimony from a passenger for the opposing party who also testified to the events of an automobile accident satisfied the corroboration requirement. Williams v. Condit, 265 Va. 49 , 574 S.E.2d 241, 2003 Va. LEXIS 9 (2003).

    Corroborating evidence need not emanate from other witnesses but may be furnished by surrounding circumstances adequately established. Penn v. Manns, 221 Va. 88 , 267 S.E.2d 126, 1980 Va. LEXIS 218 (1980).

    Need not itself be sufficient to support verdict. —

    It is not necessary that the corroborative evidence should of itself be sufficient to support a verdict, for then there would be no need for the adverse or interested party’s testimony to be corroborated. Penn v. Manns, 221 Va. 88 , 267 S.E.2d 126, 1980 Va. LEXIS 218 (1980).

    Corroboration held necessary. —

    Where the only survivor of a two-car automobile accident testified that before he left the northbound lane, the car driven by the decedent crossed the centerline, entered his lane, and confronted him with a sudden emergency in which the trier of fact might find that he was justified in crossing into the southbound lane, which testimony furnished him with the explanation required for his driving on the wrong side of the road, but which rested upon his credibility alone, and received no support from the evidence of surrounding circumstances, or from any other source, it presented an allegation which the fact-finder must believe if he was to prevail; therefore its absence would be “fatal to the case.” This is precisely the kind of issue upon which the “dead man” statute wisely requires corroboration. Hereford v. Paytes, 226 Va. 604 , 311 S.E.2d 790, 1984 Va. LEXIS 302 (1984).

    The defense of contributory negligence was properly stricken in a wrongful death case arising out of an accident that occurred after the defendant driver had been consuming alcoholic beverages where the defendant offered no evidence corroborating his own testimony regarding whether the deceased passenger knew or should have known that the defendant’s ability to drive was impaired and that she, nevertheless, chose to continue to ride with him. Rice v. Charles, 260 Va. 157 , 532 S.E.2d 318, 2000 Va. LEXIS 95 (2000).

    Corroboration not required. —

    Circuit court did not err in admitting the testimony of a decedent’s son recounting the decedent’s description of a collision because the Dead Man’s Statute applied, and the decedent’s hearsay statements were admissible; the statute did not require corroboration of the son’s testimony recounting the decedent’s hearsay statements, which were expressly admissible under the statute. Shumate v. Mitchell, 296 Va. 532 , 822 S.E.2d 9, 2018 Va. LEXIS 195 (2018).

    Corroborating evidence tends to confirm and strengthen the testimony of the witness and it may come from other witnesses as well as from circumstantial evidence. Rice v. Charles, 260 Va. 157 , 532 S.E.2d 318, 2000 Va. LEXIS 95 (2000).

    Insufficient corroboration. —

    Nephew was not entitled to specific performance of an oral agreement with deceased relatives, whereby he helped operate their farm in exchanged for their promise to leave him the farm at their deaths, because there was no corroboration of the agreement that was independent of the nephew’s testimony. Va. Home for Boys & Girls v. Phillips, 279 Va. 279 , 688 S.E.2d 284, 2010 Va. LEXIS 1 (2010).

    Trial court properly determined that a deceased husband’s son failed to prove that wills executed by the husband and his later-deceased wife were irrevocable, reciprocal wills; the son’s testimony that the decedents intended for the wills to be contracts was not corroborated as required by § 8.01-397 . Keith v. Lulofs, 283 Va. 768 , 724 S.E.2d 695, 2012 Va. LEXIS 82 (2012).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Origin of section. —

    This section was taken, in part at least, from the statute of New Mexico. Burton v. Manson, 142 Va. 500 , 129 S.E. 356 , 1925 Va. LEXIS 354 (1925).

    Section does not deny equal protection of the law. —

    The construction given to this section, by which corroboration is not required of a contracting agent of a corporation, upon the death of the other party, does not deny the equal protection of the law to private persons. The agent of a private person stands on the same footing, as to competency, as the agent of a corporation. The right of an agent to testify existed at common law, and he required no more corroboration than any other witness. Robertson's Ex'r v. Atlantic Coast Realty Co., 129 Va. 494 , 106 S.E. 521 , 1921 Va. LEXIS 112 (1921).

    Under this section the interest of a witness is no longer a disqualification. Ratliff v. Jewell, 153 Va. 315 , 149 S.E. 409 , 1929 Va. LEXIS 265 (1929).

    B.Construction.
    1.In General.

    Scope of statute. —

    By the Code of 1919, practically all disqualifications of witnesses for interest have been removed. The revisors, however, recognized that in removing such disqualifications, and especially in the case of a survivor of a transaction, there should be some compensating advantages. Hence, to meet the difficulties that might arise in consequence of the removal of the disqualifications which had been effected by the repeal of various sections of the then existing statutes, this section was added. But by this section corroboration is required only of those witnesses who have been rendered competent to testify by the repeals aforesaid, and not of witnesses already competent. The purpose of the section was to remove disqualifications, not to create them in any case, nor to impose burdens on witnesses already competent. Robertson's Ex'r v. Atlantic Coast Realty Co., 129 Va. 494 , 106 S.E. 521 , 1921 Va. LEXIS 112 (1921); Epes' Adm'r v. Hardaway, 135 Va. 80 , 115 S.E. 712 , 1923 Va. LEXIS 3 (1923).

    This section is broad in its scope and is not limited in time. Wrenn v. Daniels, 200 Va. 419 , 106 S.E.2d 126, 1958 Va. LEXIS 203 (1958).

    This section is highly remedial in its nature. Epes' Adm'r v. Hardaway, 135 Va. 80 , 115 S.E. 712 , 1923 Va. LEXIS 3 (1923).

    It does not undertake to prescribe the source from which the corroborating evidence shall come. It may come from the mouth of any competent witness, or any other legal source. Arwood v. Hill's Adm'r, 135 Va. 235 , 117 S.E. 603 , 1923 Va. LEXIS 11 (1923).

    It deals with evidence necessary to establish a contract and not with the contract itself. Timberlake v. Pugh, 158 Va. 397 , 163 S.E. 402 , 1932 Va. LEXIS 264 (1932); Brooks v. Worthington, 206 Va. 352 , 143 S.E.2d 841, 1965 Va. LEXIS 206 (1965).

    Section does not change traditional objection to hearsay. —

    This section has been interpreted as making no attempt to change the traditional objection to evidence which is purely hearsay and which would be inadmissible under any circumstances. In re Cherokee Trawler Corp., 157 F. Supp. 414, 1957 U.S. Dist. LEXIS 2521 (D. Va. 1957).

    2.Object of Section.

    Purpose of section. —

    The revisors of the Code of 1919 made material changes in the law governing the competency of witnesses to testify. They removed practically all disqualifications except to safeguard confidential communications. It was deemed necessary in order to meet difficulties that might result from the removal of disqualifications to add a new section, which is now this section. The revisors deemed this section, coupled with the safeguard of cross-examination, to be sufficient protection for estates of persons under disability or who are incapable of testifying. Hoge v. Anderson, 200 Va. 364 , 106 S.E.2d 121, 1958 Va. LEXIS 197 (1958).

    One of the purposes of this section is to prevent a surviving party from having the benefit of his own testimony where, by reason of the death of his adversary, the latter’s personal representative is deprived of the decedent’s version of the transaction. Seaboard Citizens Nat'l Bank v. Revere, 209 Va. 684 , 166 S.E.2d 258, 1969 Va. LEXIS 162 (1969).

    The object of this section is twofold: first, that there shall be no judgment in favor of an adverse or interested party founded on his uncorroborated testimony; and second, in case an adverse party testifies, then to admit as evidence the memoranda and declarations of the opposite party, incapable of testifying. Atlantic Coast Realty Co. v. Robertson's Ex'r, 135 Va. 247 , 116 S.E. 476 , 1923 Va. LEXIS 12 (1923); Ratliff v. Jewell, 153 Va. 315 , 149 S.E. 409 , 1929 Va. LEXIS 265 (1929).

    The purpose of this section was to remove disqualifications, not to create them in any case, nor to impose burdens on witnesses already competent. Union Trust Corp. v. Fugate, 172 Va. 82 , 200 S.E. 624 , 1939 Va. LEXIS 223 (1939).

    This section was intended to require corroboration of those witnesses who are financially interested in the result as well as of the adverse parties of the suit or action. Atlantic Coast Realty Co. v. Robertson's Ex'r, 135 Va. 247 , 116 S.E. 476 , 1923 Va. LEXIS 12 (1923).

    One of the purposes of this section is to prevent a surviving party from having the benefit of his own testimony where, by reason of the death of his adversary, the latter’s personal representative is deprived of the decedent’s version of the transaction. Haynes v. Glenn, 197 Va. 746 , 91 S.E.2d 433, 1956 Va. LEXIS 148 (1956).

    Sufficient protection afforded. —

    This section is new and was intended to remove all disqualifications affecting the competency of witnesses in suits by or against the estates of persons laboring under disability or who are from any cause incapable of testifying. It was believed by the revisors that the provision requiring the testimony of such witnesses to be corroborated, together with the right of cross-examination, would be a sufficient protection to the estates of persons so incapable of testifying. The object of the statute was to remove disqualifications, not create them. And in the instant case the court erred in excluding the testimony of witnesses on the ground that they were interested or adverse parties and that their testimony had not been corroborated as required by law. Arwood v. Hill's Adm'r, 135 Va. 235 , 117 S.E. 603 , 1923 Va. LEXIS 11 (1923).

    Section for protection of decedent’s estates. —

    The relevancy of evidence offered to corroborate a witness is not always obvious when the evidence is offered, or it may be relevant to a limited extent only, and, hence, much latitude must be allowed to the wisdom and discretion of the trial court. But the feature of this section which requires corroboration, in the class of cases to which it applies, is a wise one, and its observance is necessary for the protection of the estates of decedents. Varner v. White, 149 Va. 177 , 140 S.E. 128 , 1927 Va. LEXIS 185 (1927).

    This section is designed to prevent fraud, and for that reason may not be whittled away. Timberlake v. Pugh, 158 Va. 397 , 163 S.E. 402 , 1932 Va. LEXIS 264 (1932).

    3.Definitions.

    “Adverse or interested party” defined. —

    An adverse party, within the meaning of this section, is one who is a party to the record, against whom or in whose favor a judgment is sought. An interested party is one, not a party to the record, who is pecuniarily interested in the result of the suit. Merchants Supply Co. v. Hughes' Ex'rs, 139 Va. 212 , 123 S.E. 355 , 1924 Va. LEXIS 96 (1924), limited, Burton's Ex'r v. Manson, 142 Va. 500 , 129 S.E. 356 , 1925 Va. LEXIS 354 (1925).

    To hold that the words used in this section, “adverse” or “interested” party whose testimony requires corroboration, are synonymous and refer only to the parties of the suit, is to hold that the word “interested” in that connection is superfluous. If any effective meaning is to be attached to this word (interested) it must be held that one who has a pecuniary interest in the recovery, although not a party to the record, is a witness requiring corroboration. Ratliff v. Jewell, 153 Va. 315 , 149 S.E. 409 , 1929 Va. LEXIS 265 (1929).

    A disqualifying interest, which requires corroboration of the witness under this section, may result from the witness being liable for the debt therefor, liable to reimburse the party for whom his testimony is offered in case the decision is against such party, or subject to liability from which the success of the party in whose favor he would testify would relieve him, an interest in the property concerned in the litigation which may be beneficial or adversely affected by the result of the suit, a beneficial interest in the fund sought to be recovered, or a liability for costs of the action. Ratliff v. Jewell, 153 Va. 315 , 149 S.E. 409 , 1929 Va. LEXIS 265 (1929).

    4.Memoranda and Declarations.

    The entries, memoranda, and declarations mentioned in this section are only admissible “if such adverse party testifies,” but as the agent of the real estate company who testified in the instant case is no such party, a statement of decedent of the matter in controversy and a sworn bill to perpetuate his testimony were not admissible under this section. Robertson's Ex'r v. Atlantic Coast Realty Co., 129 Va. 494 , 106 S.E. 521 , 1921 Va. LEXIS 112 (1921).

    Where the only witnesses who testified that deceased had not paid an insurance premium were agents of the insurer, the depositions of members of the family of the deceased stating that he had told them he paid the premium were not rendered admissible by this section to refute the testimony of the agents. Johnson v. Nationwide Mut. Ins. Co., 276 F.2d 574, 1960 U.S. App. LEXIS 5091 (4th Cir. 1960).

    The word “may” as used near the end of this section is mandatory and not permissive. Hoge v. Anderson, 200 Va. 364 , 106 S.E.2d 121, 1958 Va. LEXIS 197 (1958).

    Provision applies when adverse party testifies concerning any phase of his case. —

    When an adverse party testifies concerning any phase of his case, then “all entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue, may be received as evidence.” Hoge v. Anderson, 200 Va. 364 , 106 S.E.2d 121, 1958 Va. LEXIS 197 (1958).

    In an action against a decedent’s estate to recover for personal injuries received in an automobile accident, plaintiff testified as to his injuries and earnings, but did not testify as to the circumstances surrounding the accident, as he was rendered unconscious as a result of the accident and did not remember events prior to, during or after the collision. It was held that a written signed statement made by decedent five days after the accident, in which he related his version of the accident, was admissible in evidence, because plaintiff, an adverse party, had testified. Hoge v. Anderson, 200 Va. 364 , 106 S.E.2d 121, 1958 Va. LEXIS 197 (1958).

    But not where surviving party’s only testimony is stricken. —

    Where the only testimony of the surviving party was stricken from the case on her own motion, the trial court properly ruled that this section was not applicable to cause the declarations of decedent to become admissible. Carter v. Nelms, 204 Va. 338 , 131 S.E.2d 401, 1963 Va. LEXIS 154 (1963).

    Decedent’s declaration against his interest admissible. —

    The declaration of a decedent made in connection with the matter in litigation, and against his interest, are admissible as evidence to go before the jury. Lackey v. Price, 142 Va. 789 , 128 S.E. 268 , 1925 Va. LEXIS 380 (1925).

    Declarations that decedent had no donative intent in opening joint bank accounts. —

    Where a father had opened bank accounts in names of himself and his son “as joint tenants with right of survivorship and not as tenants in common,” and also caused various shares of stock owned by him to be similarly re-registered in the joint names, and after his death the son claimed the stock and funds, it was held that testimony as to declarations of the father indicating he had no donative intent was admissible under this section, for the son’s interest was adverse to that of his father and his estate and the son had testified. Wrenn v. Daniels, 200 Va. 419 , 106 S.E.2d 126, 1958 Va. LEXIS 203 (1958).

    Competent to prove instructions of deceased members of board of trustees. —

    Where the defendant contracted to furnish certain building materials with a board of trustees but was afterwards instructed by two members of such board to dispose of materials because the building would not be constructed, it was competent for the defendant, in an action of assumpsit against him after the death of the two members of the board, to prove, under this section, the instructions given by such deceased members. Lackey v. Price, 142 Va. 789 , 128 S.E. 268 , 1925 Va. LEXIS 380 (1925).

    C.Corroboration.
    1.In General.

    How much corroboration is required depends on no hard and fast rule but upon the facts in each case. Trevillian v. Bullock, 185 Va. 958 , 40 S.E.2d 920, 1947 Va. LEXIS 233 (1947); Leckie v. Lynchburg Trust & Sav. Bank, 191 Va. 360 , 60 S.E.2d 923, 1950 Va. LEXIS 226 (1950).

    Whether corroboration exists and the degree and quality required are to be determined by the facts and circumstances of the particular case. Clay v. Clay, 196 Va. 997 , 86 S.E.2d 812, 1955 Va. LEXIS 169 (1955); Everton v. Askew, 199 Va. 778 , 102 S.E.2d 156, 1958 Va. LEXIS 125 (1958); Seaboard Citizens Nat'l Bank v. Revere, 209 Va. 684 , 166 S.E.2d 258, 1969 Va. LEXIS 162 (1969).

    In considering whether the testimony of an adverse or interested party has been corroborated, it is not possible to formulate any hard and fast rule, and each case must be decided upon its own facts and circumstances. Brooks v. Worthington, 206 Va. 352 , 143 S.E.2d 841, 1965 Va. LEXIS 206 (1965); Seaboard Citizens Nat'l Bank v. Revere, 209 Va. 684 , 166 S.E.2d 258, 1969 Va. LEXIS 162 (1969).

    In order to require corroboration, there must be a witness who testifies in the cause, and he must be seeking a judgment or decree in his favor, and thus be “an adverse or interested party.” He must in some way be beneficially interested in the judgment or decree which is sought to be obtained on his testimony against a party who is incapable of testifying, or some representative of such a party. Robertson's Ex'r v. Atlantic Coast Realty Co., 129 Va. 494 , 106 S.E. 521 , 1921 Va. LEXIS 112 (1921).

    Corroboration not limited to “adverse party”. —

    It is significant that in the clause of the statute which requires corroboration, the descriptive language is “adverse or interested party,” whereas in that which permits the admission as evidence of the memoranda and declarations of the person then incapable of testifying, who or whose representative is a party to the suit, the language used is “adverse party”; so that, if an adverse party — that is, a party to the record, against whom or in whose favor a judgment is sought — testifies, then such memoranda and declarations of his adversary in the litigation if relevant are admissible. On the other hand, when referring to the corroboration required, this is not limited to the adverse party, but includes both the adverse party and the interested party. This language must have been chosen designedly. Atlantic Coast Realty Co. v. Robertson's Ex'r, 135 Va. 247 , 116 S.E. 476 , 1923 Va. LEXIS 12 (1923).

    It does not require the testimony of an adverse witness to be corroborated in every particular. The statute only requires that there should be such corroboration as would confirm and strengthen the testimony of such adverse witness. Cannon v. Cannon, 158 Va. 12 , 163 S.E. 405 , 1932 Va. LEXIS 236 (1932); Morrison v. Morrison, 174 Va. 58 , 4 S.E.2d 776, 1939 Va. LEXIS 141 (1939); Heath v. Valentine, 177 Va. 731 , 15 S.E.2d 98, 1941 Va. LEXIS 256 (1941); Rorer v. Taylor, 182 Va. 49 , 27 S.E.2d 923, 1943 Va. LEXIS 131 (1943).

    It is not essential that an adverse or interested party’s testimony be corroborated on all material points. Brooks v. Worthington, 206 Va. 352 , 143 S.E.2d 841, 1965 Va. LEXIS 206 (1965).

    This section only requires that there should be such corroboration as would confirm and strengthen the belief of the jury in the testimony of such adverse witnesses. Krikorian v. Dailey, 171 Va. 16 , 197 S.E. 442 , 1938 Va. LEXIS 253 (1938); Shenandoah Valley Nat'l Bank v. Lineburg, 179 Va. 734 , 20 S.E.2d 541, 1942 Va. LEXIS 270 (1942).

    It is not necessary that the corroborating evidence should be of itself sufficient to support a verdict, but it must, of its own strength, tend to support some essential allegation. Krikorian v. Dailey, 171 Va. 16 , 197 S.E. 442 , 1938 Va. LEXIS 253 (1938); Shenandoah Valley Nat'l Bank v. Lineburg, 179 Va. 734 , 20 S.E.2d 541, 1942 Va. LEXIS 270 (1942); Leckie v. Lynchburg Trust & Sav. Bank, 191 Va. 360 , 60 S.E.2d 923, 1950 Va. LEXIS 226 (1950); Hancock v. Smith, 90 F. Supp. 45, 1950 U.S. Dist. LEXIS 2889 (D. Va. 1950).

    It is not necessary that the corroborative evidence should of itself be sufficient to support a verdict, for then there would be no need for the adverse or interested party’s testimony to be corroborated. Brooks v. Worthington, 206 Va. 352 , 143 S.E.2d 841, 1965 Va. LEXIS 206 (1965).

    Depends upon the facts of each particular case. —

    There seems to be no obscurity in the language of this section, but its application to particular cases may be sometimes difficult. That a judgment cannot be founded upon the uncorroborated testimony of one who is either a party to the action, or of one who though not a party to the action is interested in its result, is certainly true, but as the facts and circumstances attending each case are always different from the precise facts of another case, it is impossible to frame a general rule which could be universally applied. Corroboration in such cases there must be. The precise nature of the required corroboration or the weight to be given to the corroborating evidence depends upon the facts of each particular case. Noland Co. v. Wagner, 153 Va. 254 , 149 S.E. 478 , 1929 Va. LEXIS 261 (1929).

    What constitutes corroboration. —

    The facts and circumstances attending one case are so entirely different from those of another, that the statement of a general rule of universal application as to what constitutes a sufficiency of corroborating evidence would be unwise. The cases must be dealt with as they arise. But it is clear that the witness to be corroborated need not be corroborated on all material points. Merchants Supply Co. v. Executors of Estate of Hughes, 139 Va. 212 , 123 S.E. 355 (1924), is not authority to the contrary, nor is it necessary that the corroborative evidence should of itself be sufficient to support a verdict, for then there would be no need for the testimony sought to be corroborated. Burton v. Manson, 142 Va. 500 , 129 S.E. 356 , 1925 Va. LEXIS 354 (1925); Davies v. Silvey, 148 Va. 132 , 138 S.E. 513 , 1927 Va. LEXIS 215 (1927).

    However, it may be stated as an abstract rule, that corroborative evidence, under this section, is such evidence as tends in some degree, of its own strength and independency, to support some essential allegation or issue raised by the pleadings testified to by the witness whose evidence is sought to be corroborated, which allegation or issue, if unsupported, would be fatal to the case; and such corroborating evidence must, of itself without the aid of any other evidence, exhibit its corroborative character by pointing with reasonable certainty to the allegation or issue which it supports, and such evidence will not be material unless the evidence sought to be corroborated itself supports the allegations or the point in issue. Burton v. Manson, 142 Va. 500 , 129 S.E. 356 , 1925 Va. LEXIS 354 (1925); Davies v. Silvey, 148 Va. 132 , 138 S.E. 513 , 1927 Va. LEXIS 215 (1927).

    Corroborative evidence, under this section, is such evidence as tends in some degree, of its own strength and independence, to support some essential allegation or issue raised by the pleadings testified to by the witness, whose evidence is sought to be corroborated, which allegation if unsupported would be fatal to the case. White v. Pacific Mut. Life Ins. Co., 150 Va. 849 , 143 S.E. 340 , 1928 Va. LEXIS 355 (1928).

    Corroborating evidence is such evidence as tends to confirm and strengthen the testimony of the witness sought to be corroborated — that is, such as tends to show the truth, or the probability of its truth. Brooks v. Worthington, 206 Va. 352 , 143 S.E.2d 841, 1965 Va. LEXIS 206 (1965).

    The character and sufficiency of the corroboration should be gauged and appraised by the fact sought to be proved. Just what is necessary to be corroborated (i.e., delivery of a deed) must not be overlooked. Crump v. Gilliam, 190 Va. 935 , 59 S.E.2d 72, 1950 Va. LEXIS 183 (1950); Everton v. Askew, 199 Va. 778 , 102 S.E.2d 156, 1958 Va. LEXIS 125 (1958).

    Confirmation is not necessary, for that removes all doubt, while corroboration only gives more strength than was had before. Brooks v. Worthington, 206 Va. 352 , 143 S.E.2d 841, 1965 Va. LEXIS 206 (1965).

    No corroboration of inconsistent and contradictory testimony. —

    The instruction that “the law does not require the testimony of such an adverse witness to be corroborated in every particular, but that what the law requires is that there should be such corroboration as would confirm and strengthen the belief of the jury in the testimony of the witness” probably would be a sufficiently accurate statement if the testimony of the witness to be corroborated had been consistent and harmonious throughout. The belief of the jury in inconsistent and contradictory testimony could not be strengthened by evidence corroborating it. Burton v. Manson, 142 Va. 500 , 129 S.E. 356 , 1925 Va. LEXIS 354 (1925).

    No hard and fast rule can define satisfactorily what is sufficient corroboration. The witness need not be corroborated on all material points but must be supported on some essential fact whose establishment is necessary to sustain the judgment. If the testimony to be corroborated is inconsistent and contradictory then to speak of corroboration at all would be a solecism. Ratliff v. Jewell, 153 Va. 315 , 149 S.E. 409 , 1929 Va. LEXIS 265 (1929).

    Where the narrative to be corroborated runs counter to common experience, more is required to corroborate it than where it is in line with common experience. Trevillian v. Bullock, 185 Va. 958 , 40 S.E.2d 920, 1947 Va. LEXIS 233 (1947) (see also Ingles v. Greear, 181 Va. 838 , 27 S.E.2d 222 (1943)).

    Where a confidential relationship existed between the parties a higher degree of corroboration is required by this section than in ordinary transactions. Nicholson v. Shockey, 192 Va. 270 , 64 S.E.2d 813, 1951 Va. LEXIS 176 (1951); Clay v. Clay, 196 Va. 997 , 86 S.E.2d 812, 1955 Va. LEXIS 169 (1955); Everton v. Askew, 199 Va. 778 , 102 S.E.2d 156, 1958 Va. LEXIS 125 (1958).

    Where a confidential relation existed between the parties at the time of the transaction relied on, a higher degree of corroboration is required than in ordinary transactions. Seaboard Citizens Nat'l Bank v. Revere, 209 Va. 684 , 166 S.E.2d 258, 1969 Va. LEXIS 162 (1969).

    The close and confidential relationship of the parties emphasizes the necessity of subjecting the transaction to a close scrutiny and of requiring more than ordinary corroboration. Seaboard Citizens Nat'l Bank v. Revere, 209 Va. 684 , 166 S.E.2d 258, 1969 Va. LEXIS 162 (1969).

    This section was not applicable where plaintiff called defendant as an adverse witness. The usual rule was applied, and, accordingly, the plaintiff was bound by the testimony of the defendant insofar as it was uncontradicted and not inherently improbable. Balderson v. Robertson, 203 Va. 484 , 125 S.E.2d 180, 1962 Va. LEXIS 172 (1962).

    Source of corroboration. —

    Corroboration of an adverse or interested party may not emanate from him or depend upon his credibility, but it may come from any other competent witness or other legal source. Leckie v. Lynchburg Trust & Sav. Bank, 191 Va. 360 , 60 S.E.2d 923, 1950 Va. LEXIS 226 (1950).

    Corroborating evidence need not emanate from other witnesses but may be furnished by surrounding circumstances adequately established. Brooks v. Worthington, 206 Va. 352 , 143 S.E.2d 841, 1965 Va. LEXIS 206 (1965).

    This section is not applicable to evidence plainly inadmissible as hearsay. Carter Coal Co. v. Litz, 54 F. Supp. 115, 1943 U.S. Dist. LEXIS 1761 (D. Va. 1943), aff'd, 140 F.2d 934, 1944 U.S. App. LEXIS 4397 (4th Cir. 1944).

    2.Illustrations.

    What evidence needed to establish a contract with a decedent. —

    In order to establish a contract with a deceased person, under this section, there must be disinterested testimony pointing with reasonable certainty to, and corroboration of, the material evidence given by an interested witness or witnesses. White v. Pacific Mut. Life Ins. Co., 150 Va. 849 , 143 S.E. 340 , 1928 Va. LEXIS 355 (1928).

    Under the provisions of this section there must be corroborative evidence of the agreement, when it appears that one of the parties is dead. Truslow v. Ball, 166 Va. 608 , 186 S.E. 71 , 1936 Va. LEXIS 223 (1936).

    A deed as evidence of a debt does not have to be corroborated. —

    A deed, evidencing the debt and carrying the provision which created the lien, was in evidence. It was held sufficient proof of the debt and the lien, and it, as evidence, did not have to be corroborated under this section. Harper v. Harper, 159 Va. 210 , 165 S.E. 490 , 1932 Va. LEXIS 183 (1932).

    Application to deed from wife to husband. —

    In an effort to establish the validity of an unacknowledged deed from his deceased wife to himself, the plaintiff was able to present only his own uncorroborated testimony that his wife had several years previously given him the deed in question but that he had given it back to her to keep with their other important papers. Since such testimony emanated from an adverse and interested party and since the wife, who was the other party to the transaction, was dead, such testimony, even though uncontradicted, standing alone could not sustain a decree in favor of the plaintiff under the provisions of this section. Crump v. Gilliam, 190 Va. 935 , 59 S.E.2d 72, 1950 Va. LEXIS 183 (1950).

    Section not applicable to agent’s testimony. —

    The instant case was an action by a broker to recover commissions for the sale of standing timber. The contract was made between an agent of the landowner, acting for his principal, and the broker. The action was brought in the lifetime of the landowner, but upon her death the action was revived and the broker testified as a witness in his own behalf. It was held that prior to the Code of 1919 plaintiff was a competent witness and required no corroboration of any kind, and that notwithstanding this section, providing that no judgment shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony where the other party is incapable of testifying, plaintiff still required no corroboration. Epes' Adm'r v. Hardaway, 135 Va. 80 , 115 S.E. 712 , 1923 Va. LEXIS 3 (1923).

    Plaintiff, a real estate broker, was asking for a judgment against the administrator of a landowner. Defendant’s intestate had placed his property in the hands of one K., a real estate broker, for sale, and K. had asked plaintiff to obtain a customer, agreeing to share the commissions. K. refused to join the plaintiff in his action against the administrator and declined to make any charge for his services against the estate. It was held that while the plaintiff was an adverse or interested party, K. was not and was a competent witness, and that the jury should have been allowed to consider K.’s testimony in corroboration of the plaintiff and for other purposes. Arwood v. Hill's Adm'r, 135 Va. 235 , 117 S.E. 603 , 1923 Va. LEXIS 11 (1923).

    In an action by a real estate company to recover damages against an executor for breach of an alleged parol contract, whereby plaintiff was to have the exclusive right of selling a tract of land of executor’s decedent for a stipulated compensation, the agent of the plaintiff who was not a party to the action, was not an officer of the plaintiff, and had no pecuniary interest in the result of the litigation, is not “an adverse or interested party,” as that term is used in this section. Competent at common law, he is not rendered incompetent by the statute, although he was plaintiff’s contracting agent in making the contract in litigation. Robertson's Ex'r v. Atlantic Coast Realty Co., 129 Va. 494 , 106 S.E. 521 , 1921 Va. LEXIS 112 (1921).

    This section was inapplicable to a suit attacking a decedent’s will, where the suit was between living persons capable of testifying. Croft v. Snidow, 183 Va. 649 , 33 S.E.2d 208, 1945 Va. LEXIS 209 (1945).

    Inapplicable to testimony of beneficiary of surety bond where principal dead. —

    Where H. and G. entered into contract and G. gave bond to H. for its faithful performance with A. signing as surety, there is no merit in the contention that, in an action on the bond by H. against A. after G.’s death, H. cannot testify concerning such bond under this section, because even under section 3346 of the Code of 1887, which was superseded by the Code of 1919, H. would have been a competent witness in view of the fact that the agent of the corporation who represented the corporation in making the bond is living and capable of testifying. American Sur. Co. v. Hannah, 143 Va. 291 , 130 S.E. 411 , 1925 Va. LEXIS 266 (1925).

    Nor when corporation is a party and officer unable to testify. —

    This section does not provide that if an officer of a corporation, which is a party to an action, is dead, and such officer made the contract for the corporation with the opposite party to the litigation, the testimony of such opposite party cannot be received unless corroborated. The section does not create a disqualification when a corporation is a party, nor impose additional burdens upon an opposite party, because of the inability of an officer of a corporation to testify. Union Trust Corp. v. Fugate, 172 Va. 82 , 200 S.E. 624 , 1939 Va. LEXIS 223 (1939).

    This section is not applicable to an action against John Doe under the Uninsured Motorist Law, former § 38.1-381. The fictitious John Doe is not a person incapable of testifying in the sense intended by this section. John Doe v. Faulkner, 203 Va. 522 , 125 S.E.2d 169, 1962 Va. LEXIS 178 (1962).

    Section held not applicable. —

    Where, a husband having exercised his statutory right to renounce his wife’s will and take the interest in her property given him by law, the proponent of the will introduced a release of all interest in the wife’s tangible personal estate, signed by the husband but not under seal and not purporting to be for any consideration, whereupon the husband testified that there was no consideration for the release, this section did not apply, for the burden was on the proponent to prove that the husband had no right to renounce the will, and, proponent having failed to do so, the decree in favor of the husband was based not upon the husband’s testimony, but upon the right given him by statute, independent of the supposed release. Ballard v. Cox, 191 Va. 654 , 62 S.E.2d 1, 1950 Va. LEXIS 249 (1950).

    The provisions of this section requiring corroboration where one party to a transaction is dead are not applicable where, at a first trial of the action, the original defendant was living and had full opportunity to controvert the plaintiff’s testimony. Haynes v. Glenn, 197 Va. 746 , 91 S.E.2d 433, 1956 Va. LEXIS 148 (1956).

    In an action arising out of an automobile accident, if it had been shown that the defendant suffered retrograde amnesia and so could not remember how the accident occurred, it was, nonetheless, unnecessary that the plaintiff’s testimony be corroborated. The Dead Man’s Statute simply does not apply to this type of case. The defendant was not incapable of testifying. He was merely unable, supposedly, to recall the actual details of the accident. That is not such an incapability as is envisioned by the statute. Sturman v. Johnson, 209 Va. 227 , 163 S.E.2d 170, 1968 Va. LEXIS 220 (1968).

    But is applicable to stockholder as witness for corporation. —

    A stockholder in a corporation is one who has a pecuniary interest in the result when such corporation is a party to the litigation in which a judgment is sought by or against it and as such must, under this section, be corroborated, or a judgment in favor of the corporation cannot be founded on his testimony in an action against an incapable party or his representative. Atlantic Coast Realty Co. v. Robertson's Ex'r, 135 Va. 247 , 116 S.E. 476 , 1923 Va. LEXIS 12 (1923).

    To creditor in suit to set aside deed in trustee’s sale. —

    In a suit to set aside a deed from a trustee, the deed recited that the creditor requested the execution of the trust, but the creditor testified that he did not request the trustee to make the sale. It was held that the creditor was not entitled to a decree based upon his testimony, unless such testimony was corroborated, since the provisions of this section applied squarely to the situation. Willis v. Chesapeake W. Ry., 178 Va. 314 , 16 S.E.2d 649, 1941 Va. LEXIS 166 (1941).

    To debtor in action by executor against decedent’s debtors. —

    Where defendants, in an action by an executor to recover on a bond made by defendants, payable to the executor’s decedent, alleged that the bond has been paid and the chief witness for the defense was one of the defendants, such witness falls within the designation of this section as an adverse and interested party, and must be corroborated. Burton v. Manson, 142 Va. 500 , 129 S.E. 356 , 1925 Va. LEXIS 354 (1925).

    To testimony of beneficiary of alleged parol trust in realty. —

    The claims of the alleged beneficiaries under an alleged parol trust bore the stamp of inconsistency and was contrary to human experience and it followed, as a corollary, that since the alleged grantor was dead the evidence of the beneficiary must be corroborated. Ingles v. Greear, 181 Va. 838 , 27 S.E.2d 222, 1943 Va. LEXIS 232 (1943).

    And to plaintiff in action against administrator for services rendered decedent. —

    In action against administrator to recover for services rendered decedent during his lifetime, based on an oral agreement to devise and bequeath to plaintiff all of decedent’s property, this section required corroboration of plaintiff’s testimony with respect to her claim. Ricks v. Sumler, 179 Va. 571 , 19 S.E.2d 889, 1942 Va. LEXIS 249 (1942).

    Section held applicable. —

    Where plaintiffs brought suit against their brother to determine the ownership of funds received by their deceased mother in a land transaction in which defendant represented her as attorney, and deposited by her in joint bank accounts to the credit of herself and defendant and of defendant and his father, technically there was not a suit by defendant against his mother’s estate or personal representative, but there was in effect such a proceeding, defendant was an adverse or interested party who sought a decree against his mother’s estate sustaining a gift of the funds to him, and the presumption of fraud arising from the fiduciary relationship between defendant and his mother could not be overcome by defendant’s uncorroborated testimony. Nicholson v. Shockey, 192 Va. 270 , 64 S.E.2d 813, 1951 Va. LEXIS 176 (1951).

    Corroborative evidence held sufficient. —

    In an action against the heirs of a decedent based on an alleged oral contract made by decedent with plaintiff to leave plaintiff decedent’s business and all he had if plaintiff would learn the business, the testimony of nine witnesses, most of whom were not interested or related to the parties, that decedent had stated to them on various occasions that he expected to leave his business to plaintiff, afforded sufficient corroboration of the contract to supply the essentials required by the provisions of this section. Clark v. Atkins, 188 Va. 668 , 51 S.E.2d 222, 1949 Va. LEXIS 238 (1949).

    In an action against an executor on a note given by his decedent, defendant objected to a judgment for plaintiff upon the ground that it was founded on the uncorroborated testimony of the plaintiff, contrary to the provisions of this section. It was held that there was no merit in this objection, as the note itself and the presumption arising from it aided the plaintiff in carrying the burden of proof. Moreover, the testimony for the defendant as to the soundness of mind of the decedent further corroborated the testimony of the plaintiff. Good v. Dyer, 137 Va. 114 , 119 S.E. 277 , 1923 Va. LEXIS 142 (1923).

    In a suit against the estate of a deceased vendor for specific performance of a contract for the sale of real estate, plaintiff’s testimony that a noninterest-bearing bond had been executed for the purchase price was sufficiently corroborated by the verbal and documentary evidence. Leckie v. Lynchburg Trust & Sav. Bank, 191 Va. 360 , 60 S.E.2d 923, 1950 Va. LEXIS 226 (1950).

    In an action against the committee of an incompetent to recover damages for the incompetent’s fraud in “selling” to the plaintiff a piece of land which he did not own, the deed with special warranty of title, the admission of defendant’s counsel that the incompetent did not own the property, and the other circumstances constituted sufficient corroboration of plaintiff’s testimony under this section. Grimes v. Peoples Nat'l Bank, 191 Va. 505 , 62 S.E.2d 22, 1950 Va. LEXIS 238 (1950).

    Testimony of wife as to loans to husband, since deceased, was held sufficiently corroborated to comply with this section. Morrison v. Morrison, 174 Va. 58 , 4 S.E.2d 776, 1939 Va. LEXIS 141 (1939).

    As to sufficient corroboration of testimony of claimant against estate, see Rorer v. Taylor, 182 Va. 49 , 27 S.E.2d 923, 1943 Va. LEXIS 131 (1943).

    Possession of bond and relation of parties held sufficient corroboration of gift. Shenandoah Valley Nat'l Bank v. Lineburg, 179 Va. 734 , 20 S.E.2d 541, 1942 Va. LEXIS 270 (1942).

    In a widow’s suit to determine the validity of an antenuptial contract a decree finding the contract invalid was not based on the uncorroborated testimony of the widow where she proved, without the aid of her own testimony, that: (1) While she was engaged to her deceased husband they executed an antenuptial contract; (2) thereafter they were married; (3) the consideration stated in the antenuptial contract was unreasonably small in proportion to the value of the property then owned by the intended husband. Batleman v. Rubin, 199 Va. 156 , 98 S.E.2d 519, 1957 Va. LEXIS 174 (1957).

    Corroboration of a deceased father’s indebtedness to his daughter was substantial and ample. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20, 1957 Va. LEXIS 209 (1957).

    Parol agreement of wife to devise property to husband held sufficiently corroborated. Everton v. Askew, 199 Va. 778 , 102 S.E.2d 156, 1958 Va. LEXIS 125 (1958).

    Where a woman testified to an alleged marriage ceremony with a deceased person, ample corroboration of her testimony was to be found in the testimony of others that they considered the decedent and the woman to be married, and in the decedent’s letters, in which he repeatedly addressed her as his wife. Grove v. Metropolitan Life Ins. Co., 271 F.2d 918, 1959 U.S. App. LEXIS 3160 (4th Cir. 1959).

    Corroborative evidence held insufficient. —

    Corroborative evidence of promise by wife to devise property to husband held insufficient. Clay v. Clay, 196 Va. 997 , 86 S.E.2d 812, 1955 Va. LEXIS 169 (1955).

    Evidence of close relationship between mother and son held insufficient corroboration under this section. Nicholson v. Shockey, 192 Va. 270 , 64 S.E.2d 813, 1951 Va. LEXIS 176 (1951).

    D.Procedure.

    Whether the requirement of corroboration under this section has been satisfied is usually an issue for the jury. Whitmer v. Marcum, 214 Va. 64 , 196 S.E.2d 907, 1973 Va. LEXIS 256 (1973).

    But corroboration need not always present a jury issue; a trial judge is not precluded from a determination that the witness’s testimony has been corroborated as a matter of law. Whitmer v. Marcum, 214 Va. 64 , 196 S.E.2d 907, 1973 Va. LEXIS 256 (1973).

    Where the trial court found as a matter of law that testimony was corroborated, the issue of corroboration was erroneously submitted to the jury. Whitmer v. Marcum, 214 Va. 64 , 196 S.E.2d 907, 1973 Va. LEXIS 256 (1973).

    Jury to be instructed. —

    This section provides that, in an action or suit by or against a person who, from any cause, is incapable of testifying, or by or against his representative, no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony. It was held that the proper practice under the statute is not to exclude the testimony of such interested or adverse party but to properly instruct the jury on that subject. Arwood v. Hill's Adm'r, 135 Va. 237 , 117 S.E. 603 (1923).

    When litigant should offer instructions. —

    It is the duty of a litigant, who thinks the instructions given as to corroboration under this section do not fairly present the case from the standpoint of the evidence which is favorable to him, to prepare and offer such instructions as will accomplish this purpose. Whitmer v. Marcum, 214 Va. 64 , 197 S.E.2d 907 (1973).

    Instruction need not set forth every judicial statement on legal principles involved. —

    It is not necessary that an instruction on corroboration which fully and fairly apprises the jury according to its purpose set forth every judicial statement on the principles of law involved. Whitmer v. Marcum, 214 Va. 64 , 196 S.E.2d 907, 1973 Va. LEXIS 256 (1973).

    Motion for judgment or new trial when jury disregards instruction. —

    If the jury disregard the instructions to the effect that they are not to return a verdict against an incapable person or his representative upon the uncorroborated testimony of an interested or adverse party, the remedy of the other party is a motion to set aside the verdict and grant a new trial, or for the court to enter a final judgment, as shall seem right and proper. Arwood v. Hill's Adm'r, 135 Va. 235 , 117 S.E. 603 , 1923 Va. LEXIS 11 (1923).

    Party in interest enforces section. —

    Where witness is rendered generally competent by § 8.01-396 , objection to his testimony on account of qualifications made by this section must come from some party who is interested in the transaction which is the subject of investigation. McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918).

    CIRCUIT COURT OPINIONS

    Purpose. —

    Primary intent and purpose behind § 8.01-397 , the Dead Man’s Statute, is to level the playing field and prevent self-serving testimony. Therefore, because two hospital nurses were not adverse or interested parties in regard to the telephone calls an administrator of a deceased patient sought to exclude, the Dead Man’s Statute did not apply. Richardson v. Maskell, 64 Va. Cir. 196, 2004 Va. Cir. LEXIS 30 (Wise County Mar. 8, 2004).

    Applicability. —

    This section did not apply to a wrongful death case where the facts had been admitted, and thus the owner and workers did not rely upon the uncorroborated testimony of an adverse party. Belcher v. Johnson, 95 Va. Cir. 171, 2017 Va. Cir. LEXIS 19 (Martinsville Feb. 10, 2017).

    Not applicable to documentary evidence. —

    Corroboration for purpose of the Dead Man’s Statute, § 8.01-397 cannot come from the mouth of the witness sought to be corroborated. However, documentary evidence, such as nurses’ chart notes, does not come “from the mouth” of the witness and thus can operate as corroboration. Richardson v. Maskell, 64 Va. Cir. 196, 2004 Va. Cir. LEXIS 30 (Wise County Mar. 8, 2004).

    “Testimony.” —

    Word “testimony” in the Dead Man’s Statute, § 8.01-397 , does not include “documents” or other “evidence.” Richardson v. Maskell, 64 Va. Cir. 196, 2004 Va. Cir. LEXIS 30 (Wise County Mar. 8, 2004).

    Self-inflicted injury. —

    Deadman’s Statute provision relating to the inapplicability for self-inflicted injury was controlling because it was not conclusively proven one way or the other whether a decedent’s inability to testify came as a result of his self-inflicted injury or an emergency room physician’s negligence; it was an issue for the jury to consider, the issue was one of fact, and it was the prerogative of the jury to adjudge the facts. Harris v. Schirmer, 93 Va. Cir. 8, 2016 Va. Cir. LEXIS 32 (Roanoke Mar. 7, 2016).

    Corroborative evidence held sufficient. —

    Older brother’s claim to certain farm equipment in return for providing specific lifetime assistance to his deceased parents on their farm was upheld; the contract was found not to be in contravention of the Virginia Dead Man’s Statute. Such a decision or judgment was not based solely on the uncorroborated testimony of the older brother as an adverse party, but instead was corroborated in part by the receipts submitted for parts and petroleum products he purchased and used over the years to maintain and repair the contested equipment. Grant v. Grant, 67 Va. Cir. 412, 2005 Va. Cir. LEXIS 159 (Roanoke County June 15, 2005).

    Son provided corroboration of an agreement for the lifetime care of his father in exchange for his father’s estate for § 8.01-397 purposes with the unrefuted testimony of five independent witnesses as to the father’s unsolicited statements confirming the agreement, made without evidence of any mental confusion on the part of the father. Neese v. Mark K. Neese, 2010 Va. Cir. LEXIS 52 (Roanoke County Apr. 28, 2010).

    Jury was properly instructed on the Deadman’s Statute because there was a significant amount of circumstantial evidence corroborating an emergency room physician’s testimony. Harris v. Schirmer, 93 Va. Cir. 8, 2016 Va. Cir. LEXIS 32 (Roanoke Mar. 7, 2016).

    Jury was properly instructed on the Deadman’s Statute because at least two nurses present during a decedent’s treatment were able to corroborate the overall position that the decedent’s behavior was contrary to his health and self-interest; the nurses’ testimony did not necessarily confirm the truth of what the emergency room physician claimed, but their testimonies did tend to confirm the probability thereof. Harris v. Schirmer, 93 Va. Cir. 8, 2016 Va. Cir. LEXIS 32 (Roanoke Mar. 7, 2016).

    In a case in which plaintiff alleged defendant misused his authority as a director of a small corporation to confer upon himself excessive compensation, the question regarding defendant’s testimony about communications with his deceased mother was not, strictly speaking, whether such testimony was admissible, but rather whether there existed, in the record, evidence that corroborated the testimony and thus permitted the court to consider such testimony in order to grant judgment in defendant’s favor. The court found that defendant did in fact introduce such corroborating evidence. O'Brien v. Midgett, 96 Va. Cir. 177, 2017 Va. Cir. LEXIS 119 (Virginia Beach July 26, 2017).

    Insufficient corroboration. —

    In a suit brought by a decedent’s two sons, seeking the imposition of a constructive trust on some of the funds held by the sons’ stepmother in an amount equal to the proceeds that they should have received from the decedent’s estate, a constructive trust was imposed for one of the sons in the amount of $15,139.77 as the evidence showed that the stepmother’s withdrawal of $15,139.77 from the joint accounts of the decedent and the son, during the decedent’s last illness while acting under a durable power of attorney, constituted a constructive fraud. The stepmother did not offer any testimony corroborating her contention that she withdrew the money pursuant to the decedent’s wishes; thus, pursuant to § 8.01-397 , a decree could not be rendered in favor of the stepmother. Geertgens v. Geertgens, 2011 Va. Cir. LEXIS 19 (Roanoke County Apr. 7, 2011).

    Statements corroborated by witnesses. —

    Sister’s agreement to return to a decedent’s city and care for the decedent in the decedent’s waning years in exchange for the decedent to convey to the sister the decedent’s home was made (as corroborated by three witnesses to the decedent’s statements), substantially performed, and specifically enforceable against the executor of the decedent’s estate (even though the decedent made no provision for the sister in the decedent’s most recent will). Fauntleroy v. Borden, 63 Va. Cir. 144, 2003 Va. Cir. LEXIS 342 (Richmond Sept. 23, 2003).

    Testimony excluded. —

    Because § 8.01-397.1 did not allow a nurse, who was subject to the dead man’s statute, to corroborate the nurse’s testimony with the nurse’s own notes (which were not written contemporaneously with the nurse’s actions), the nurse’s testimony was excluded and could not be the basis of expert opinion that might lead to a judgment. Shelton v. Chippenham & Johnston Willis Hosps., Inc., 68 Va. Cir. 468, 2005 Va. Cir. LEXIS 241 (Richmond Sept. 27, 2005).

    Plaintiff’s motion in limine to exclude the doctor’s uncorroborated testimony was granted because the doctor failed to put forth a scintilla of evidence to corroborate the communications about dual anti-platelet therapy medications; no interested party or witness would testify to being present or having overheard the alleged communications between the doctor and the decedent; no records, notes or other documents were identified by the doctor as having been made contemporaneous to the purported communications; and, while the doctor might have talked with the decedent via telephone and during an office visit, no evidence corroborated the doctor’s testimony that he spoke with the decedent specifically about dual anti-platelet therapy medications. Sexton v. Bowser, 95 Va. Cir. 299, 2017 Va. Cir. LEXIS 43 (Richmond Mar. 16, 2017).

    Parol evidence. —

    Language used in the first paragraph of the decedent’s will gave the property in fee simple to petitioner, and thus whether ambiguous or not, the language in paragraph three could not limit or restrain the estate; the language in paragraph three was precatory and only expressed a consideration for petitioner, and even if this were not the court’s finding, no corroboration existed, and thus parol evidence was not to be considered. City of Chesapeake v. Corprew, 94 Va. Cir. 336, 2016 Va. Cir. LEXIS 150 (Chesapeake Oct. 7, 2016).

    § 8.01-397.1. Evidence of habit or routine practice; defined (Supreme Court Rule 2:406 derived from this section).

    1. Admissibility. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye witnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Evidence of prior conduct may be relevant to rebut evidence of habit or routine practice.
    2. Habit and routine practice defined. A “habit” is a person’s regular response to repeated specific situations. A “routine practice” is a regular course of conduct of a group of persons or an organization in response to repeated specific situations.
    3. The provisions of this section are applicable only in civil proceedings.

    History. 2000, c. 1026.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    Effective date.

    This section is effective April 19, 2000.

    CIRCUIT COURT OPINIONS

    Dead man’s statute. —

    Because § 8.01-397.1 did not allow a nurse, who was subject to the dead man’s statute, § 8.01-397 , to corroborate the nurse’s testimony with the nurse’s own notes (which were not written contemporaneously with the nurse’s actions), the nurse’s testimony was excluded and could not be the basis of expert opinion that might lead to a judgment. Shelton v. Chippenham & Johnston Willis Hosps., Inc., 68 Va. Cir. 468, 2005 Va. Cir. LEXIS 241 (Richmond Sept. 27, 2005).

    Waiver of objection. —

    In a medical malpractice lawsuit regarding hip reconstruction surgery, the patient waived his argument regarding admission of a certain radiologist’s habit testimony regarding his review of certain scans because the patient only raised this issue on appeal and did not raise it before the trial court. Graham v. Cook, 278 Va. 233 , 682 S.E.2d 535, 2009 Va. LEXIS 93 (2009).

    Sufficiency of evidence. —

    Although the decedent, who was a dump truck driver, had a habit of exiting the dump truck to check for spillage every second, third, or fourth asphalt pour, the court could not find “based simply on the decedent’s habit and the conflicting evidence about what pour the decedent was on” that the decedent was checking for spilled asphalt when the decedent was struck by automobiles while standing beside the truck. Selective Ins. Co. of Am. v. Bratton, 88 Va. Cir. 139, 2014 Va. Cir. LEXIS 12 (Roanoke County Apr. 8, 2014), rev'd, 290 Va. 314 , 776 S.E.2d 775, 2015 Va. LEXIS 110 (2015) (rev’d, based on the meaning of the term ‘occupying‘ in the policy).

    § 8.01-398. Privileged marital communications (Subsection (a) of Supreme Court Rule 2:504 derived from this section).

    Husband and wife shall be competent witnesses to testify for or against each other in all civil actions.

    In any civil proceeding, a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communication between his spouse and him during their marriage, regardless of whether he is married to that spouse at the time he objects to disclosure. This privilege may not be asserted in any proceeding in which the spouses are adverse parties, or in which either spouse is charged with a crime or tort against the person or property of the other or against the minor child of either spouse. For the purposes of this section, “confidential communication” means a communication made privately by a person to his spouse that is not intended for disclosure to any other person.

    History. Code 1950, §§ 8-287, 8-289; 1977, c. 617; 2005, c. 809.

    REVISERS’ NOTE

    Subsection A of § 8.01-398 is a combination of former §§ 8-287 and 8-289.

    The common-law rule that neither husband nor wife could sue the other has been eliminated by statute and case law except with respect to personal injury actions (other than those arising out of an automobile accident).

    However, a change in the law of evidence has not accompanied this expansion of the spouses’ rights of action. Subsection B of this section therefore provides that if by the laws of this Commonwealth one spouse is permitted to sue the other, the privileged status of communications between the two made while married is abrogated as to such proceedings.

    Former § 8-288 (Testimony of husband and wife in criminal cases) was transferred to § 19.2-271.2 .

    Cross references.

    As to testimony of husband and wife in criminal cases, see § 19.2-271.2 .

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    The 2005 amendments.

    The 2005 amendment by c. 809 rewrote the section.

    Law Review.

    For survey of Virginia law on evidence for the year 1969-1970, see 56 Va. L. Rev. 1325 (1970).

    For survey of Virginia law on evidence for the year 1971-1972, see 58 Va. L. Rev. 1268 (1972).

    For survey of Virginia law on evidence for the year 1973-1974, see 60 Va. L. Rev. 1543 (1974).

    For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977).

    For comment on confidential communication privileges under federal and Virginia law, see 13 U. Rich. L. Rev. 593 (1979).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Divorce and Alimony, § 33.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    The privilege embodied in this statute has been construed broadly to include all information or knowledge privately imparted and made known by one spouse to the other by virtue of and in consequence of the marital relation through conduct, acts, signs, and spoken or written words. Burns v. Commonwealth, 261 Va. 307 , 541 S.E.2d 872, 2001 Va. LEXIS 29, cert. denied, 534 U.S. 1043, 122 S. Ct. 621, 151 L. Ed. 2d 542, 2001 U.S. LEXIS 10671 (2001).

    Applicability in criminal cases. —

    The phrase in § 19.2-271.2 , “subject to the exception stated in § 8.01-398 ” is construed as a cross-reference which embodies the proviso in this section concerning confidential communications. This has the effect of retaining, as a part of the law of criminal procedure, the historic interspousal confidential communication privilege which was formerly contained in § 8-289, notwithstanding the apparent confinement of its successor statute, the present § 8.01-398 , to “civil actions.” In the absence of an express enactment to that effect, the Supreme Court will not assume that the General Assembly intended to abrogate this long-standing rule. Church v. Commonwealth, 230 Va. 208 , 335 S.E.2d 823, 1985 Va. LEXIS 271 (1985).

    Defendant’s convictions for rape and forcible sodomy of defendant’s teenage stepdaughter were not obtained in violation of defendant’s ex post facto clause rights; admission was proper of the testimony of the victim’s mother, defendant’s wife, of statements that defendant made to her and a tape recording the mother made containing defendant’s incriminating statements under amendments to §§ 8.01-398 and 19.2-271.2 since the evidence did not change the quantum of proof necessary to obtain the convictions but only changed the admissibility of evidence that could be offered to obtain the convictions. Carpenter v. Commonwealth, 51 Va. App. 84, 654 S.E.2d 345, 2007 Va. App. LEXIS 463 (2007).

    Admissibility of observations about attire. —

    There is no per se rule allowing the admission of spouse’s observations of other’s attire. Some acts, such as cross-dressing, or wearing bloody clothing, might be considered confidential communications. Edwards v. Commonwealth, 20 Va. App. 470, 457 S.E.2d 797, 1995 Va. App. LEXIS 494 (1995).

    Communication made during now-dissolved marriage. —

    The interspousal confidential communication privilege survived the dissolution of marriage. The confidential communications made by the defendant to his wife during their marriage must be treated as privileged if the case is tried again. Church v. Commonwealth, 230 Va. 208 , 335 S.E.2d 823, 1985 Va. LEXIS 271 (1985).

    Permissible testimony. —

    Wife’s description of the defendant’s clothing, which he displayed in public when he left the home, was not a confidential communication. Further, it is reasonable to infer that clothing worn in public was not intended to be kept private or confidential. Therefore, the wife’s testimony about the defendant’s attire on the evening of the offense was properly admitted. Edwards v. Commonwealth, 20 Va. App. 470, 457 S.E.2d 797, 1995 Va. App. LEXIS 494 (1995).

    The wife’s testimony about the defendant’s interest in purchasing a car and his intent to test-drive a car with an older couple was also not the sort of communication a spouse would reasonably consider of a secret nature between husband and wife. The information was not conveyed with an expression of confidentiality, nor did its content imply that it should be kept confidential. In fact, the defendant not only expressed his intent to the victim and his wife, but also arranged to meet them in a public place, further supporting a finding that this communication was not a marital secret. Edwards v. Commonwealth, 20 Va. App. 470, 457 S.E.2d 797, 1995 Va. App. LEXIS 494 (1995).

    Defendant’s wife’s testimony that the defendant instructed her over the phone to meet him at his relative’s house was not disclosure of a secret communication because it lacked any objective indicia of confidential intent. If anything, the defendant’s actions indicate the opposite, since he instructed her to meet him at a place where other people would be present to witness the meeting. Edwards v. Commonwealth, 20 Va. App. 470, 457 S.E.2d 797, 1995 Va. App. LEXIS 494 (1995).

    When the wife testified that she looked through the defendant’s belongings, which he had deposited in their bedroom outside of her presence, and found a wallet containing the victim’s driver’s license and credit card, she was not describing a communication. While a spouse’s conduct may convey information to the other spouse and would, therefore, be privileged, a spouse’s conduct which does not convey information to the other spouse is not privileged. The former wife’s discovery of the contents of the wallet conveyed information to her, as did the fact that she discovered it among the defendant’s belongings. However, the defendant’s conduct—leaving the wallet among his belongings—was not observed by the former wife and did not convey information to her. Edwards v. Commonwealth, 20 Va. App. 470, 457 S.E.2d 797, 1995 Va. App. LEXIS 494 (1995).

    Statements properly admitted. —

    Because defendant’s communication to his estranged wife over a cell phone concerned acts for which the wife had a right of action against defendant, neither § 8.01-398 nor the exception in former § 19.2-271.2 forbade her testimony as to his statement. Braxton v. Commonwealth, 2006 Va. App. LEXIS 313 (Va. Ct. App. July 18, 2006).

    Privilege inapplicable to testimony by third party. —

    The plain words utilized in this statutory provision limit the privilege to situations where a spouse is being examined in an action or is revealing a private communication through testimony. The statute does not prevent a third party who is in possession of letters written by one spouse to the other, and who has gained that possession lawfully, from testifying. Burns v. Commonwealth, 261 Va. 307 , 541 S.E.2d 872, 2001 Va. LEXIS 29, cert. denied, 534 U.S. 1043, 122 S. Ct. 621, 151 L. Ed. 2d 542, 2001 U.S. LEXIS 10671 (2001).

    Immunity rests with testifying spouse. —

    Trial court erred in limiting defendant’s cross-examination of the alleged shooting victim’s wife, as neither the Commonwealth nor the victim had the right to invoke spousal immunity if the victim’s wife was willing to testify, as the spousal immunity privilege rested with the testifying spouse, not defendant spouse, under § 19.2-271.2 .Holt v. Commonwealth, 2003 Va. App. LEXIS 215 (Va. Ct. App. Apr. 8, 2003).

    II.Decisions Under Prior Law.

    Editor’s note.

    Section removed common-law disqualification, except in specified instances. Menefee v. Commonwealth, 189 Va. 900 , 55 S.E.2d 9, 1949 Va. LEXIS 227 (1949).

    Basis of rule. —

    Communications between husband and wife are privileged, and neither can be made to testify as to them. This rule is independent of any consideration of interest or indemnity, and is upheld on the ground of public policy. The fact that they were living apart from each other, at the time when the communications were made, though not divorced, is immaterial. Murphy v. Commonwealth, 64 Va. (23 Gratt.) 960, 1873 Va. LEXIS 84 (1873).

    A person is not incompetent to testify against his spouse under Virginia law. Shiflett v. Virginia, 447 F.2d 50, 1971 U.S. App. LEXIS 9316 (4th Cir. 1971), cert. denied, 405 U.S. 994, 92 S. Ct. 1267, 31 L. Ed. 2d 462, 1972 U.S. LEXIS 3330 (1972).

    And he can testify freely unless the spouse objects. Shiflett v. Virginia, 447 F.2d 50, 1971 U.S. App. LEXIS 9316 (4th Cir. 1971), cert. denied, 405 U.S. 994, 92 S. Ct. 1267, 31 L. Ed. 2d 462, 1972 U.S. LEXIS 3330 (1972).

    In which event the spouse is privileged to prevent any testimony. —

    See Shiflett v. Virginia, 447 F.2d 50, 1971 U.S. App. LEXIS 9316 (4th Cir. 1971), cert. denied, 405 U.S. 994, 92 S. Ct. 1267, 31 L. Ed. 2d 462, 1972 U.S. LEXIS 3330 (1972).

    This section’s application is limited to judicial testimony and, therefore, it is not pertinent where wife did not testify at trial, but provides evidence leading to conviction. Wood v. Hodnett, 377 F. Supp. 740, 1974 U.S. Dist. LEXIS 8519 (W.D. Va. 1974).

    To what communications applicable. —

    Under the provisions of this section, neither husband nor wife can without the consent of the other be examined in any case as to any communication made by the one to the other while married, nor can such communication be revealed, without such consent, after the marriage relation ceases. The statute is founded on public policy and applies to any communication between them, of any nature, whether confidential or not, and it is immaterial by whom or for what purpose the husband or wife may be called as a witness, or whether for or against each other. Conversations, therefore, between a husband and his wife as to the making of his will cannot be given in evidence by his widow, no matter by whom she is called as a witness. Wilkes v. Wilkes, 115 Va. 886 , 80 S.E. 745 , 1914 Va. LEXIS 145 (1914).

    Supreme Court has adopted the liberal view that privileged communications between husband and wife include all information or knowledge privately imparted and made known by one spouse to the other by virtue of and in consequence of the marital relation through conduct, acts, signs and spoken or written words. Osborne v. Commonwealth, 214 Va. 691 , 204 S.E.2d 289, 1974 Va. LEXIS 204 (1974).

    Effect of “privately.” —

    But note the effect of the insertion, in this section by the revisors of 1919, of the word “privately,” which seems to make statutory the holding that communications between husband and wife made in the presence of third persons are in no just sense either confidential or privileged. Pilcher v. Pilcher, 117 Va. 356 , 84 S.E. 667 , 1915 Va. LEXIS 44 (1915).

    The word “privately” as used in this section is intended to be synonymous with confidential. In other words, the communications referred to were intended to mean those of a secret nature between husband and wife. Thomas v. First Nat'l Bank, 166 Va. 497 , 186 S.E. 77 , 1936 Va. LEXIS 214 (1936).

    Admissibility does not depend upon presence of third person. —

    The admissibility of communications between husband and wife was not intended to depend upon whether the communication was made in the presence of some third person, but upon the nature of the communication — that is, whether it was intended to be secret or confidential, or a communication to which those attributes do not attach. Thomas v. First Nat'l Bank, 166 Va. 497 , 186 S.E. 77 , 1936 Va. LEXIS 214 (1936).

    Communications between husband and wife as to business matters admissible. —

    Under this section, neither husband nor wife can, without consent of the other, testify (either during the coverture or afterwards) as to any communication made by one to the other while married, but this rule of privilege does not apply to communications between husband and wife with regard to a business matter in which he is acting as her agent. Lurty v. Lurty, 107 Va. 466 , 59 S.E. 405 , 1907 Va. LEXIS 64 (1907).

    Communications include acts. —

    The immunity and ban of this section applies to and includes all information or knowledge privately imparted and made known by one spouse to the other by virtue of and in consequence of the marital relation through conduct, acts, signs and spoken or written words. Menefee v. Commonwealth, 189 Va. 900 , 55 S.E.2d 9, 1949 Va. LEXIS 227 (1949).

    But a beating was not a communication within the meaning of this section for it did not impart knowledge or information made privileged. Osborne v. Commonwealth, 214 Va. 691 , 204 S.E.2d 289, 1974 Va. LEXIS 204 (1974).

    This rule operates only where there is a valid marriage. United States v. Neeley, 475 F.2d 1136, 1973 U.S. App. LEXIS 10633 (4th Cir. 1973).

    When the defendant has never legally divorced his third wife he cannot rely on any exclusionary rules based on the existence of subsequent valid marriages. United States v. Neeley, 475 F.2d 1136, 1973 U.S. App. LEXIS 10633 (4th Cir. 1973).

    Adoption of wife’s words by accused made them his own. —

    Where a defendant in a confession agreed with his wife’s statement concerning what happened in the incident in which the defendant was involved, it was necessary to give content to his indication of acquiescence. His adoption of her words made them his own, and did not constitute testimony by the wife over the defendant’s objection. Shiflett v. Virginia, 447 F.2d 50, 1971 U.S. App. LEXIS 9316 (4th Cir. 1971), cert. denied, 405 U.S. 994, 92 S. Ct. 1267, 31 L. Ed. 2d 462, 1972 U.S. LEXIS 3330 (1972).

    Effect on burden of proof as to conveyances from husband to wife. —

    The doctrine in Virginia which places the burden upon those attempting to support a conveyance from a husband to the wife as against existing creditors of the husband is well settled, and while the section has made the testimony of either consort competent in controversies of this character, it has in no sense changed the burden or shifted the recognized presumptions in such cases. Davis v. Southern Distrib. Co., 148 Va. 779 , 139 S.E. 495 , 1927 Va. LEXIS 277 (1927).

    Both spouses have right to object. —

    The object of this section was to give to both spouses the right to object to the other testifying in violation of the section. Daniels v. Morris, 199 Va. 205 , 98 S.E.2d 694, 1957 Va. LEXIS 180 (1957).

    Claim of privilege waived. —

    Wife’s answer which was responsive to question asked by her husband’s attorney waived his claim of privilege. Osborne v. Commonwealth, 214 Va. 691 , 204 S.E.2d 289, 1974 Va. LEXIS 204 (1974).

    To allow a widow to testify as to privileged communication constitutes reversible error. Edmundson v. Edmundson, 11 Va. L. Reg. 30 (1925).

    Section held not violated. —

    The examination of plaintiff’s wife by plaintiff’s counsel in an action for alienation of affection and criminal conversation did not violate the provisions of this section, where the record failed to show that any questions concerning private communications between husband and wife were involved, and no objections or exceptions were interposed by defendant’s counsel to any question propounded. Daniels v. Morris, 199 Va. 205 , 98 S.E.2d 694, 1957 Va. LEXIS 180 (1957).

    CIRCUIT COURT OPINIONS

    Relation to attorney-client privilege. —

    Because Virginia recognized the husband-wife privilege codified at § 8.01-398 , the presence of a sister’s husband in a meeting with her counsel did not destroy the confidentiality required for the attorney-client privilege. Brownfield v. Hodous, 82 Va. Cir. 315, 2011 Va. Cir. LEXIS 176 (Charlottesville Mar. 3, 2011).

    § 8.01-399. Communications between physicians and patients (Supreme Court Rule 2:505 derived from this section).

    1. Except at the request or with the consent of the patient, or as provided in this section, no duly licensed practitioner of any branch of the healing arts shall be permitted to testify in any civil action, respecting any information that he may have acquired in attending, examining or treating the patient in a professional capacity.
    2. If the physical or mental condition of the patient is at issue in a civil action, the diagnoses, signs and symptoms, observations, evaluations, histories, or treatment plan of the practitioner, obtained or formulated as contemporaneously documented during the course of the practitioner’s treatment, together with the facts communicated to, or otherwise learned by, such practitioner in connection with such attendance, examination or treatment shall be disclosed but only in discovery pursuant to the Rules of Court or through testimony at the trial of the action. In addition, disclosure may be ordered when a court, in the exercise of sound discretion, deems it necessary to the proper administration of justice. However, no order shall be entered compelling a party to sign a release for medical records from a health care provider unless the health care provider is not located in the Commonwealth or is a federal facility. If an order is issued pursuant to this section, it shall be restricted to the medical records that relate to the physical or mental conditions at issue in the case. No disclosure of diagnosis or treatment plan facts communicated to, or otherwise learned by, such practitioner shall occur if the court determines, upon the request of the patient, that such facts are not relevant to the subject matter involved in the pending action or do not appear to be reasonably calculated to lead to the discovery of admissible evidence. Only diagnosis offered to a reasonable degree of medical probability shall be admissible at trial.
    3. This section shall not (i) be construed to repeal or otherwise affect the provisions of § 65.2-607 relating to privileged communications between physicians and surgeons and employees under the Workers’ Compensation Act; (ii) apply to information communicated to any such practitioner in an effort unlawfully to procure a narcotic drug, or unlawfully to procure the administration of any such drug; or (iii) prohibit a duly licensed practitioner of the healing arts, or his agents, from disclosing information as required by state or federal law.
    4. Neither a lawyer nor anyone acting on the lawyer’s behalf shall obtain, in connection with pending or threatened litigation, information concerning a patient from a practitioner of any branch of the healing arts without the consent of the patient, except through discovery pursuant to the Rules of Supreme Court as herein provided. However, the prohibition of this subsection shall not apply to:
      1. Communication between a lawyer retained to represent a practitioner of the healing arts, or that lawyer’s agent, and that practitioner’s employers, partners, agents, servants, employees, co-employees or others for whom, at law, the practitioner is or may be liable or who, at law, are or may be liable for the practitioner’s acts or omissions;
      2. Information about a patient provided to a lawyer or his agent by a practitioner of the healing arts employed by that lawyer to examine or evaluate the patient in accordance with Rule 4:10 of the Rules of Supreme Court; or
      3. Contact between a lawyer or his agent and a nonphysician employee or agent of a practitioner of healing arts for any of the following purposes: (i) scheduling appearances, (ii) requesting a written recitation by the practitioner of handwritten records obtained by the lawyer or his agent from the practitioner, provided the request is made in writing and, if litigation is pending, a copy of the request and the practitioner’s response is provided simultaneously to the patient or his attorney, (iii) obtaining information necessary to obtain service upon the practitioner in pending litigation, (iv) determining when records summoned will be provided by the practitioner or his agent, (v) determining what patient records the practitioner possesses in order to summons records in pending litigation, (vi) explaining any summons that the lawyer or his agent caused to be issued and served on the practitioner, (vii) verifying dates the practitioner treated the patient, provided that if litigation is pending the information obtained by the lawyer or his agent is promptly given, in writing, to the patient or his attorney, (viii) determining charges by the practitioner for appearance at a deposition or to testify before any tribunal or administrative body, or (ix) providing to or obtaining from the practitioner directions to a place to which he is or will be summoned to give testimony.
    5. A clinical psychologist duly licensed under the provisions of Chapter 36 (§ 54.1-3600 et seq.) of Title 54.1 shall be considered a practitioner of a branch of the healing arts within the meaning of this section.
    6. Nothing herein shall prevent a duly licensed practitioner of the healing arts, or his agents, from disclosing any information that he may have acquired in attending, examining or treating a patient in a professional capacity where such disclosure is necessary in connection with the care of the patient, the protection or enforcement of a practitioner’s legal rights including such rights with respect to medical malpractice actions, or the operations of a health care facility or health maintenance organization or in order to comply with state or federal law.

    History. Code 1950, § 8-289.1; 1956, c. 446; 1966, c. 673; 1977, c. 617; 1993, c. 556; 1996, cc. 937, 980; 1998, c. 314; 2002, cc. 308, 723; 2005, cc. 649, 692; 2009, c. 714.

    REVISERS’ NOTE

    The only change in substance to former § 8-289.1 is to make § 8.01-399 applicable to all courts and not circuit courts only.

    Cross references.

    As to physicians permitting State Department of Health to examine records relating to diseases and death of patients, see §§ 32.1-40 and 32.1-41 .

    As to the exemption from liability of physicians reporting disabilities to aircraft pilot licensing authorities, see § 54.1-2966.

    For provision that disclosure of information, records and reports by a health care provider to the investigating agency in connection with a suspected case of child abuse or neglect shall not be prohibited by § 8.01-399 , see § 63.2-1509 A.

    Editor’s note.

    Legal Ethics Opinion Nos. 1042, 1158, and 1235 were overruled by subsection D of this section, as amended in 1993, the Virginia State Bar Standing Committee on Legal Ethics has determined. The subsection precludes a lawyer or anyone acting on the lawyer’s behalf from obtaining, in connection with pending or threatened litigation, information from a practitioner of any branch of the healing arts without the consent of the patient except through discovery pursuant to the Rules of the Court.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    The 2002 amendments.

    The 2002 amendment by c. 308, in subsection A, inserted “or as provided in this section” and substituted “that he may” for “which he may”; in subsection B, in the first sentence, substituted “If” for “Notwithstanding subsection A, when” at the beginning and inserted “the diagnosis or treatment plan of the practitioner, as documented in the patient’s medical record, during the time of the practitioner’s treatment, together with the” preceding “facts communicated,” inserted “diagnosis or treatment plan” preceding “facts communicated” in the third sentence, and added the last sentence; added clause (iii) in subsection C; in subsection D, inserted “concerning a patient” in the introductory paragraph and substituted “that the lawyer” for “which the lawyer” in clause (vi) of subdivision D 3; in subsection F, inserted “or his agents” and substituted “that he may” for “which he may” near the beginning; and made minor punctuation and stylistic changes.

    The 2002 amendment by c. 723, in subsection B, inserted the present third and fourth sentences, and deleted “However” at the beginning of the final sentence.

    The 2005 amendments.

    The 2005 amendment by cc. 649 and 692 are identical and, in subsection B, substituted “diagnoses, signs and symptoms, observations, evaluations, histories” for “diagnosis” and “course” for “time,” inserted “obtained or formulated” following “plan of the practitioner,” and “contemporaneously” preceding “documented,” and deleted “in the patient’s medical record” preceding “during the course”; substituted “Supreme” for “the” in subsection D; deleted “the” preceding “Supreme Court” in subdivision D 2; substituted “a” for “the” preceding “practitioner’s legal rights” in subsection F; and made minor stylistic changes.

    The 2009 amendments.

    The 2009 amendment by c. 714 substituted “permitted” for “required” in subsection A.

    Law Review.

    For comment on confidential communication privileges under federal and Virginia law, see 13 U. Rich. L. Rev. 593 (1979).

    For a review of Fourth Circuit cases on criminal procedure, see 36 Wash. & Lee L. Rev. 485 (1979).

    For an article, “Civil Practice and Procedure,” see 32 U. Rich. L. Rev. 1009 (1998).

    For annual survey article discussing the state of health care law in Virginia, see 38 U. Rich. L. Rev. 137 (2003).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    For casenote & comment, “A Privilege for ‘Mommy Dearest’? Criticizing Virginia’s Mental Health Records Privilege in Custody Disputes and the Court’s Application in Schwartz v. Schwartz,” see 13 Geo. Mason L. Rev. 1341 (2006).

    For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

    For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

    For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

    For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).

    For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

    For article, “Paging Dr. Google: Personal Health Records and Patient Privacy,” see 51 Wm. and Mary L. Rev. 2243 (2010).

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Physicians and Surgeons, § 3.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    The “legal rights” referred to in subsection F include, but are not limited to, such rights “with respect to medical malpractice actions” and, thus, include such rights with respect to being deposed. Subsection F does not require that the physician be an actual or potential party to a medical malpractice action. Archambault v. Roller, 254 Va. 210 , 491 S.E.2d 729, 1997 Va. LEXIS 85 (1997).

    Testimony did not deviate from doctors’ records. —

    Testimony by doctors in a medical malpractice action did not violate subsection B, as the records prepared by one doctor referred to a possible nervous system embolic event that the doctor referenced in his testimony, and the executor of an estate failed to place another doctor’s records at issue for appeal. Pettus v. Gottfried, 269 Va. 69 , 606 S.E.2d 819, 2005 Va. LEXIS 16 (2005).

    Testimony not based on reasonable degree of medical probability. —

    Reports of three doctors supported the finding of the workers’ compensation commission that there was no causal connection between the employee’s work-related injury and medical treatment occurring after the date the employee was determined to have reached maximum medical improvement. Although a fourth doctor, a doctor of osteopathy, opined as to a causal relationship between the employee’s work-related injury and the employee’s right knee alone, that doctor’s opinion was not expressed with any medical certainty or probability, and, thus would not be admissible under subsection B of § 8.01-399 . McWhorter v. Williamsburg/James City County & Cmty. Action Agency, Inc., 2008 Va. App. LEXIS 218 (Va. Ct. App. May 6, 2008).

    Physician-patient privilege applicable where medical condition at issue. —

    Even if the Virginia privilege rule was applicable, the arrestee waived the physician-patient privilege by putting his medical condition at issue, releasing his medical records, and failing to object when the officer submitted a doctor’s testimony. Helsabeck v. Fabyanic, 173 Fed. Appx. 251, 2006 U.S. App. LEXIS 7832 (4th Cir. 2006).

    There exists no physician-patient privilege in a criminal prosecution in Virginia. In re Times-World Corp., 25 Va. App. 405, 488 S.E.2d 677, 1997 Va. App. LEXIS 539 (1997).

    Testimony of affiliated physician not barred. —

    Trial court did not err in denying patient’s motion in limine to bar the different physician’s testimony, even though the different physician was affiliated with the practice of the patient’s treating physician and the treating physician had agreed to testify for the patient in her medical malpractice case against the doctor; the plain language of subsection A of § 8.01-399 dictated the conclusion that the different physician was not barred from testifying for the doctor as an expert witness, as the different physician had not been required to testify for the doctor, the different physician did not attend, examine, or treat the patient in a professional capacity, and that statute barred practitioners, but not practitioner’s partners or a practitioner’s practice entity from testifying against the patient. Wright v. Kaye, 267 Va. 510 , 593 S.E.2d 307, 2004 Va. LEXIS 48 (2004).

    Testimony admissible as it was factual and not diagnostic. —

    In a medical malpractice lawsuit regarding hip reconstruction surgery, certain testimonial statements made by treating radiologists did not have to be made within a reasonable degree of medical probability under subsection B of § 8.01-399 because the statements were factual and not diagnostic. Graham v. Cook, 278 Va. 233 , 682 S.E.2d 535, 2009 Va. LEXIS 93 (2009).

    Medical reports. —

    Medical reports of a plaintiff in a civil action are not protected by the physician-patient privilege if the plaintiff’s physical or mental condition is in issue. Wiggins v. Fairfax Park Ltd. Partnership, 22 Va. App. 432, 470 S.E.2d 591, 1996 Va. App. LEXIS 355 (1996).

    Where insurance company presented no rationale for disclosure of life insurance beneficiary’s medical records, other than to “see what information, if any, those medical records contained relating to the murder of the beneficiary’s husband and her involvement therein,” the trial court did not abuse its discretion in granting the beneficiary’s motion to quash the insurance company’s subpoena of those medical records. Peoples Sec. Life Ins. Co. v. Arrington, 243 Va. 89 , 412 S.E.2d 705, 8 Va. Law Rep. 1779, 1992 Va. LEXIS 156 (1992), dismissed, No. LX-434-1, 1994 Va. Cir. LEXIS 939 (Richmond Apr. 26, 1994).

    Ex parte interviews. —

    In a case where plaintiffs claimed they suffered injury when they became addicted to pain medication, defendants, the manufacturers and distributors of the medication, were not entitled to conduct ex parte informal interviews with plaintiffs’ treating physicians. McCauley v. Purdue Pharma, L.P., 224 F. Supp. 2d 1066, 2002 U.S. Dist. LEXIS 18407 (W.D. Va. 2002).

    Testimony admissible where it concerned doctor’s impressions reached at time of treatment. —

    In a wrongful death action, testimony by a doctor was admissible under subsection B of § 8.01-399 , because the testimony concerned the doctor’s impression reached at the time she was treating the decedent, and the doctor was not offering a diagnosis or her present medical expert opinion about the clinical significance of the results of a urinalysis test. Holmes v. Levine, 273 Va. 150 , 639 S.E.2d 235, 2007 Va. LEXIS 23 (2007).

    Harmless error. —

    In a medical malpractice action, any error by the trial court in excluding a doctor’s testimony in violation of subsection B of § 8.01-399 was harmless error, because the testimony did not reference any observations concerning events that occurred in the operating room at the time of a second surgery allegedly required to repair damage arising from the doctor’s negligence in performing gastric bypass surgery on the patient. King v. Cooley, 274 Va. 374 , 650 S.E.2d 523, 2007 Va. LEXIS 101 (2007).

    Contempt proceedings involving a mother in divorce case. —

    Contempt finding against a mother in a divorce proceeding was reversed, because the trial court violated former § 20-124.3:1 by permitting the father to admit testimony about the mother from the mental health care provider appointed by the trial court to counsel the parties’ children. Schwartz v. Schwartz, 46 Va. App. 145, 616 S.E.2d 59, 2005 Va. App. LEXIS 296 (2005).

    Error not preserved. —

    In a medical malpractice lawsuit regarding hip reconstruction surgery, although a certain testimonial statement by a treating radiologist, that the patient had “Stage II avascular necrosis as his major problem” was diagnostic, and thus, should have been made within a reasonable degree of medical probability under subsection B of § 8.01-399 , the patient waived review because he failed to timely challenge this testimony at deposition, as required by Va. Sup. Ct. R. 4:7(d)(3)(B). Graham v. Cook, 278 Va. 233 , 682 S.E.2d 535, 2009 Va. LEXIS 93 (2009).

    Testimony admissible. —

    In a termination of parental rights case, the trial court did not abuse its discretion in accepting an expert opinion about the cause of the child’s injuries because the expert asserted that she relied on facts, data, and opinions commonly relied upon by experts in her field, and specifically identified those items in her deposition. She stated, in not so many words, that because she had no other explanation from the child’s history about the injuries and no outward signs of trauma, she could not come to any conclusion other than that they were caused by non-accidental trauma. Farrell v. Warren County Dep't of Soc. Servs., 59 Va. App. 375, 719 S.E.2d 329, 2012 Va. App. LEXIS 1 (2012).

    II.Decisions Under Prior Law.

    Editor’s note.

    Common law recognized no such privilege in either civil or criminal proceedings. Gibson v. Commonwealth, 216 Va. 412 , 219 S.E.2d 845, 1975 Va. LEXIS 307 (1975), cert. denied, 425 U.S. 994, 96 S. Ct. 2207, 48 L. Ed. 2d 819, 1976 U.S. LEXIS 1776 (1976).

    There exists no physician-patient privilege in a criminal prosecution in Virginia. Gibson v. Commonwealth, 216 Va. 412 , 219 S.E.2d 845, 1975 Va. LEXIS 307 (1975), cert. denied, 425 U.S. 994, 96 S. Ct. 2207, 48 L. Ed. 2d 819, 1976 U.S. LEXIS 1776 (1976).

    Privilege confined to civil proceedings. —

    While Virginia has enacted a statutory privilege, it is expressly confined to civil proceedings. Gibson v. Commonwealth, 216 Va. 412 , 219 S.E.2d 845, 1975 Va. LEXIS 307 (1975), cert. denied, 425 U.S. 994, 96 S. Ct. 2207, 48 L. Ed. 2d 819, 1976 U.S. LEXIS 1776 (1976).

    Where physical condition of patient at issue. —

    The contents of a medical report, though arising out of the physician-patient relationship are not privileged if the physical condition of the patient is at issue in a legal proceeding. City of Portsmouth v. Cilumbrello, 204 Va. 11 , 129 S.E.2d 31, 1963 Va. LEXIS 109 (1963); In re Trinidad Corp., 238 F. Supp. 928, 1965 U.S. Dist. LEXIS 9391 (E.D. Va. 1965).

    Physician required to testify. —

    The exception in this section was properly applied and a physician was required to testify where he had previously treated plaintiff and subsequently examined plaintiff for defendant’s attorney. De Foe v. Duhl, 286 F.2d 205, 1961 U.S. App. LEXIS 5637 (4th Cir. 1961).

    CIRCUIT COURT OPINIONS

    Doctor testimony over patient objection. —

    While a treating physician could testify on causation over his patient’s objection, the court engaged in an individual analysis of the physician’s statements to determine whether they rose to a level of reasonable degree of medical probability. Goodloe v. Sharpe, 61 Va. Cir. 520, 2003 Va. Cir. LEXIS 222 (Rockingham County May 15, 2003).

    Pursuant to the injured party’s motion in limine, the injured party’s doctor was not permitted to testify as an expert for the driver because the subject information was of a nature covered in § 8.01-399 , both of the doctor’s letters to the injured party’s counsel were not produced in conformity with subsection B of § 8.01-399 , and any response in deposition elicited from the letters violated subsection A of § 8.01-399. Ramsey v. Woodward, 71 Va. Cir. 145, 2006 Va. Cir. LEXIS 101 (Fauquier County June 20, 2006).

    Testimony of physician. —

    Defendants’ motion to overrule plaintiff’s objections to a physician’s deposition testimony was denied because the physician’s interpretation of an X-ray was an impression that would have been documented in the record, the physician’s opinion concerning how a screw could have gotten into plaintiff’s joint was an opinion not contemporaneously documented in the notes, and plaintiff’s objection to the opinions of the physician that were not held to the standard of reasonable probability was well taken. Graham v. Cook, 75 Va. Cir. 359, 2008 Va. Cir. LEXIS 263 (Loudoun County July 18, 2008).

    Objections to a doctor’s deposition testimony were overruled because there was sufficient contemporaneous documentation to support the testimony since it reflected the doctor’s impressions reached at the time she was treating the patient; the statute clearly allowed the doctor’s testimony to be based both on contemporaneously documented medical information and on the facts communicated to, or otherwise learned by her, in connection with such attendance, examination or treatment. Byington v. Sentara Life Care Corp., 94 Va. Cir. 70, 2016 Va. Cir. LEXIS 198 (Norfolk Dec. 30, 2016).

    Medical reports. —

    Where a minister did not provide counseling services to the husband as a minister, but as a counselor for compensation and the husband shared the information with a psychologist, the minister’s records could be discovered by the wife. Burke v. Burke, 59 Va. Cir. 86, 2002 Va. Cir. LEXIS 330 (Richmond May 1, 2002).

    Where a medical center’s proposed experts were from the same “group” as the child’s treating physicians, the proposed experts’ testimony and record review was inappropriate in the child’s medical malpractice action. McCaffrey v. Va. Women's Ctr., Inc., 59 Va. Cir. 266, 2002 Va. Cir. LEXIS 380 (Richmond July 17, 2002).

    Trial court found that nothing in two sets of psychiatric records over which the trial court conducted in camera review following production of that material pursuant to subpoenas called into question the credibility of the complaining witness, and, thus, the psychiatric records were not material and would be sealed in a case where defendant was indicted by a grand jury for the aggravated battery and object sexual penetration of defendant’s stepsister; while defendant had state and federal constitutional rights permitting defendant to call for the production of evidence in his favor and public policy concerns dictated that courts in criminal cases consider the impact on witnesses of releasing the records of healthcare providers who under civil law were protected by privileges from releasing such material, the trial court concluded after in camera review that the information in the records sought was not material because it did not call into question the alleged victim’s assertion of abuse or the alleged victim’s credibility. Commonwealth v. Arrington, 72 Va. Cir. 514, 2007 Va. Cir. LEXIS 8 (Portsmouth Feb. 14, 2007).

    Causation. —

    If a witness did not testify in accordance with subsection B of § 8.01-399 , which permitted a treating physician to testify about diagnoses, including causation, as long as it was given under a reasonable degree of medical probability, the witness’s testimony concerning causation was not admissible. Crowder v. Gastrointestinal Specialists, Inc., 69 Va. Cir. 104, 2005 Va. Cir. LEXIS 339 (Richmond Sept. 26, 2005).

    Limitation on scope of subpoena duces tecum. —

    There is no question that the father’s physical condition was at issue in a divorce, custody, and visitation case for purposes of his motion to quash the mother’s subpoenas duces tecum for the father’s medical records; however, the court was also cognizant of the potential for damage resulting from such disclosure. Therefore, the court limited the time period for disclosure to five years before the date of the subpoena, and required the parties to enter into a confidentiality agreement regarding disclosure of such medical information in order to prevent any unnecessary dissemination. Cage v. Cage, 73 Va. Cir. 190, 2007 Va. Cir. LEXIS 30 (Portsmouth Apr. 3, 2007).

    § 8.01-400. Communications between ministers of religion and persons they counsel or advise (Supreme Court Rule 2:503 derived in part from this section).

    No regular minister, priest, rabbi, or accredited practitioner over the age of eighteen years, of any religious organization or denomination usually referred to as a church, shall be required to give testimony as a witness or to relinquish notes, records or any written documentation made by such person, or disclose the contents of any such notes, records or written documentation, in discovery proceedings in any civil action which would disclose any information communicated to him in a confidential manner, properly entrusted to him in his professional capacity and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted.

    History. Code 1950, § 8-289.2; 1962, c. 466; 1977, c. 617; 1979, c. 3; 1994, c. 198.

    REVISERS’ NOTE

    Former § 8-289.2 has been preserved except to change the age to 18.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    Law Review.

    For comment on confidential communication privileges under federal and Virginia law, see 13 U. Rich. L. Rev. 593 (1979).

    For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

    For article, “Sharing Sacred Secrets: Is It (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege,” 44 Wm. & Mary L. Rev. 1627 (2003).

    For article, “Exorcising the Clergy Privilege,” see 103 Va. L. Rev. 1015 (2017).

    Michie’s Jurisprudence.

    For related discussion, see 20 M.J. Witnesses, § 28.

    CASE NOTES

    To whom privilege granted. —

    The plain meaning of this section grants the privilege only to the minister, priest or rabbi, not to the penitent or lay communicant. Seidman v. Fishburne-Hudgins Educ. Found., Inc., 724 F.2d 413, 1984 U.S. App. LEXIS 26635 (4th Cir. 1984).

    Consent of penitent not required for disclosure. —

    Most penitent-priest statutes have a common feature: they explicitly prohibit the clergyman from disclosing the contents of a confidential communication “without the consent of the person making the communication.” Significantly, this section contains no such prohibition; it simply says that “no regular minister, priest, rabbi or accredited practitioner . . . shall be required to disclose any information” entrusted to him in a confidential conversation. This language plainly invests the priest with the privilege and leaves it to his conscience to decide when disclosure is appropriate. Seidman v. Fishburne-Hudgins Educ. Found., Inc., 724 F.2d 413, 1984 U.S. App. LEXIS 26635 (4th Cir. 1984).

    Penitent’s disclosures treated differently from disclosures to doctor or psychologist. —

    The legislature included provisions in §§ 8.01-399 and 8.01-400.2 which allow communicants to require doctors or psychologists to give testimony concerning confidential disclosures. The legislature’s omission of a similar provision from the priest-penitent statute strongly indicates that the clergyman’s privilege cannot be affected by the communicant. Seidman v. Fishburne-Hudgins Educ. Found., Inc., 724 F.2d 413, 1984 U.S. App. LEXIS 26635 (4th Cir. 1984).

    CIRCUIT COURT OPINIONS

    Disclosure to third party. —

    Where a minister did not provide counseling services to the husband as a minister, but as a counselor for compensation and the husband shared the information with a psychologist, the minister’s records could be discovered by the wife. Burke v. Burke, 59 Va. Cir. 86, 2002 Va. Cir. LEXIS 330 (Richmond May 1, 2002).

    § 8.01-400.1. Privileged communications by interpreters for the deaf (Supreme Court Rule 2:507 derived in part from this section).

    Whenever a deaf person communicates through an interpreter to any person under such circumstances that the communication would be privileged, and such person could not be compelled to testify as to the communications, this privilege shall also apply to the interpreter.

    History. 1978, c. 601.

    Cross references.

    As to the visual electronic recording of the testimony of a deaf individual and the interpretation thereof for use in verification of the official transcript of civil proceedings, see § 8.01-406 .

    As to privileged communications by interpreters for the deaf in criminal cases, see § 19.2-164.1 .

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    Law Review.

    For survey of Virginia law on evidence for the year 1977-1978, see 64 Va. L. Rev. 1451 (1978).

    § 8.01-400.2. Communications between certain mental health professionals and clients (Supreme Court Rule 2:506 derived from this section).

    Except at the request of or with the consent of the client, no licensed professional counselor, as defined in § 54.1-3500; licensed clinical social worker, as defined in § 54.1-3700; licensed psychologist, as defined in § 54.1-3600; or licensed marriage and family therapist, as defined in § 54.1-3500, shall be required in giving testimony as a witness in any civil action to disclose any information communicated to him in a confidential manner, properly entrusted to him in his professional capacity and necessary to enable him to discharge his professional or occupational services according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking professional counseling or treatment and advice relative to and growing out of the information so imparted; provided, however, that when the physical or mental condition of the client is at issue in such action, or when a court, in the exercise of sound discretion, deems such disclosure necessary to the proper administration of justice, no fact communicated to, or otherwise learned by, such practitioner in connection with such counseling, treatment or advice shall be privileged, and disclosure may be required. The privileges conferred by this section shall not extend to testimony in matters relating to child abuse and neglect nor serve to relieve any person from the reporting requirements set forth in § 63.2-1509.

    History. 1982, c. 537; 2005, c. 110.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    The 2005 amendments.

    The 2005 amendments by c. 110, in the first sentence, substituted “§ 54.1-3700; licensed” for “§ 541.-3700, or licensed” and inserted “or licensed marriage and family therapist, as defined in § 54.1-3500.”

    Law Review.

    For casenote & comment, “A Privilege for ‘Mommy Dearest’? Criticizing Virginia’s Mental Health Records Privilege in Custody Disputes and the Court’s Application in Schwartz v. Schwartz,” see 13 Geo. Mason L. Rev. 1341 (2006).

    CASE NOTES

    Testimony of marriage counselor. —

    Admission of marriage counselor’s testimony was not an abuse of discretion where the trial court was required to consider the physical and mental conditions of the parties in determining spousal support and equitable distribution under §§ 20-107.1 and 20-107.3 , and thus, the exception to § 8.01-400.2 , permitted the admissibility of the otherwise privileged communications. Bullano v. Bullano, 2007 Va. App. LEXIS 31 (Va. Ct. App. Jan. 30, 2007).

    Contempt proceedings involving a mother in divorce case. —

    Contempt finding against a mother in a divorce proceeding was reversed, because the trial court violated former § 20-124.3:1 by permitting the father to admit testimony about the mother from the mental health care provider appointed by the trial court to counsel the parties’ children. Schwartz v. Schwartz, 46 Va. App. 145, 616 S.E.2d 59, 2005 Va. App. LEXIS 296 (2005).

    CIRCUIT COURT OPINIONS

    Medical reports. —

    Trial court found that nothing in two sets of psychiatric records over which the trial court conducted in camera review following production of that material pursuant to subpoenas called into question the credibility of the complaining witness, and, thus, the psychiatric records were not material and would be sealed in a case where defendant was indicted by a grand jury for the aggravated battery and object sexual penetration of defendant’s stepsister; while defendant had state and federal constitutional rights permitting defendant to call for the production of evidence in his favor and public policy concerns dictated that courts in criminal cases consider the impact on witnesses of releasing the records of healthcare providers who under civil law were protected by privileges from releasing such material, the trial court concluded after in camera review that the information in the records sought was not material because it did not call into question the alleged victim’s assertion of abuse or the alleged victim’s credibility. Commonwealth v. Arrington, 72 Va. Cir. 514, 2007 Va. Cir. LEXIS 8 (Portsmouth Feb. 14, 2007).

    § 8.01-401. How adverse party may be examined; effect of refusal to testify (subsection (b) of Supreme Court Rule 2:607 and subsection (c) of Supreme Court Rule 2:611 derived from subsection A of this section).

    1. A party called to testify for another, having an adverse interest, may be examined by such other party according to the rules applicable to cross-examination.
    2. If any party, required by another to testify on his behalf, refuses to testify, the court, officer, or person before whom the proceeding is pending, may, in addition to punishing said party as for contempt, dismiss the action, or other proceeding of the party so refusing, as to the whole or any part thereof, or may strike out and disregard the plea, answer, or other defense of such party, or any part thereof, as justice may require.

    History. Code 1950, §§ 8-290, 8-291; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-401 combines former §§ 8-290 and 8-291 and changes former § 8-290 to provide that the sanctions listed are cumulative, the court still being empowered to hold the refusing party in contempt.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    Law Review.

    For comment, “Expert Opinion from the Defendant-Physician,” see 25 Wash. & Lee L. Rev. 115 (1968).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, see “Civil Practice and Procedure,” 26 U. Rich. L. Rev. 679 (1992).

    Michie’s Jurisprudence.

    For related discussion, see 20 M.J. Witnesses, §§ 38, 52, 54, 80.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Applicability of subsection A. —

    Subsection A has been held applicable to criminal cases, and in that subsection, the word “party” is not limited to litigants. Sluss v. Commonwealth, No. 1252-93-3 (Ct. of Appeals Jan. 10, 1995).

    Refusal to answer questions pertinent to the issues involved. —

    Implicit in subsection B of this section is the requirement that the party who is seeking affirmative relief and who has exercised the privilege against self-incrimination must have refused to answer questions pertinent to the issues involved; such party asserting the privilege must have frustrated an attempt by the other party to obtain information relevant to the cause of action alleged and to possible defenses to the claim. Davis v. Davis, 233 Va. 452 , 357 S.E.2d 495, 3 Va. Law Rep. 2710, 1987 Va. LEXIS 214 (1987).

    Where the plaintiff’s claims dealt with recovery of one-half of the proceeds of a cashier’s check, the assertion by the defendant of his constitutional right against self-incrimination bore on issues relevant to those claims; however, the claims of the defendant set forth in the crossbill and counterclaim dealt with demands for debts allegedly due him by his former wife based on credit card charges and other advances made on her behalf, and his refusal to answer questions about the negotiation of the check was not pertinent to the issues involved in the claims which he sought to prosecute, nor did such conduct frustrate any attempt by the plaintiff to obtain information relevant to his claims against her or possible defenses to those claims; consequently, the trial court erred in striking the cross-bill and counterclaim pursuant to subsection B of this section. Davis v. Davis, 233 Va. 452 , 357 S.E.2d 495, 3 Va. Law Rep. 2710, 1987 Va. LEXIS 214 (1987).

    Scope of examination of adverse witness. —

    This section, which applies in both criminal and civil actions, provides that a party may call to the stand a witness “having an adverse interest” and may examine the witness “according to the rules applicable to cross-examination.” Weller v. Commonwealth, 16 Va. App. 886, 434 S.E.2d 330, 10 Va. Law Rep. 110, 1993 Va. App. LEXIS 335 (1993).

    An employee of a party litigant is not per se an adverse witness. Hegwood v. Virginia Natural Gas, Inc., 256 Va. 362 , 505 S.E.2d 372, 1998 Va. LEXIS 103 (1998).

    Witness must be hostile or adverse for this rule to apply. —

    The application of this rule is limited to instances when it is clear that the witness is in fact hostile or adverse at trial. The determination of whether a witness is “unwilling or hostile” is a matter that rests with the discretion of the trial court. Weller v. Commonwealth, 16 Va. App. 886, 434 S.E.2d 330, 10 Va. Law Rep. 110, 1993 Va. App. LEXIS 335 (1993).

    This section also applies “where the witness has no adverse interest, but is shown to be adverse or hostile to the party introducing him.” Weller v. Commonwealth, 16 Va. App. 886, 434 S.E.2d 330, 10 Va. Law Rep. 110, 1993 Va. App. LEXIS 335 (1993).

    Adverse interest is more than testimony being adverse to calling party. —

    A nonparty witness does not have an “adverse interest” simply because his or her testimony is adverse to the calling party. The test is not whether the witness’ testimony would necessarily be adverse, but whether the witness has an adverse interest. Weller v. Commonwealth, 16 Va. App. 886, 434 S.E.2d 330, 10 Va. Law Rep. 110, 1993 Va. App. LEXIS 335 (1993).

    Adverse party may be impeached by prior inconsistent statements. —

    Where driver hit victim in a car accident, and the trial court permitted driver to call victim to the stand as a part of his case in rebuttal, solely to impeach her credibility, trial court did not err in permitting such impeachment on rebuttal even though it could have been done earlier in the cross-examination of victim, subsection A and § 8.01-403 do not preclude impeachment of an adverse party by prior inconsistent statements. Mastin v. Theirjung, 238 Va. 434 , 384 S.E.2d 86, 6 Va. Law Rep. 587, 1989 Va. LEXIS 140 (1989).

    Refusal to allow cross-examination as adverse witness proper. —

    The trial court properly refused to allow the defendant to cross-examine a defense witness who testified that he was at home at the time of the crimes at issue as an adverse witness, since the witness had been totally exonerated of the crimes by DNA testing, especially as the court allowed the defendant to thoroughly question the witness regarding his conflicting statements to the police. Painter v. Commonwealth, No. 1502-97-1 (Ct. of Appeals April 7, 1998).

    Refusal to allow cross-examination was error. —

    Trial court erred when it did not permit a husband to cross-examine a wife’s handwriting expert and a factual witness regarding the parties’ disputed marital agreement. Because an opportunity to cross-examine was a fundamental right, the trial court abused its discretion by its arbitrary refusal to allow any cross-examination whatsoever. Campbell v. Campbell, 49 Va. App. 498, 642 S.E.2d 769, 2007 Va. App. LEXIS 141 (2007).

    Impeachment of Commonwealth’s own witness held improper. —

    Trial court erred in allowing prosecution to impeach its own witness; the Commonwealth should not have been allowed to impeach the witness merely because the witness’s testimony did not live up to expectations. Smallwood v. Commonwealth, 36 Va. App. 483, 553 S.E.2d 140, 2001 Va. App. LEXIS 550 (2001).

    No abuse of discretion found. —

    Trial court did not abuse its discretion in refusing to reopen the Commonwealth’s case for further cross-examination of the victim as defendant had the opportunity to call the victim as his own witness under the rules applicable to cross-examination under § 8.01-401 . Mott v. Commonwealth, 2003 Va. App. LEXIS 653 (Va. Ct. App. Dec. 16, 2003).

    There was no abuse of discretion in declaring defendant’s brother to be a hostile witness because the brother was a person with an interest adverse to the prosecution. Teleguz v. Commonwealth, 273 Va. 458 , 643 S.E.2d 708, 2007 Va. LEXIS 64 (2007), cert. denied, 552 U.S. 1191, 128 S. Ct. 1228, 170 L. Ed. 2d 78, 2008 U.S. LEXIS 1412 (2008).

    Trial court did not deny a mother her right to cross-examine her partner because it provided the mother with substantial latitude to cross-examine the partner, even though the mother’s allotted time had already expired. Higgins v. Pearce, 2017 Va. App. LEXIS 296 (Va. Ct. App. Nov. 28, 2017).

    II.Decisions Under Prior Law.

    Editor’s note.

    Strict construction required. —

    Subsection B of this section is in derogation of the common law, and, therefore, must be strictly construed. VEPCO v. Bowers, 181 Va. 542 , 25 S.E.2d 361, 1943 Va. LEXIS 202 (1943).

    Section applies to criminal cases as well as civil cases. —

    The Supreme Court held in McCue v. Commonwealth, 103 Va. 870 , 49 S.E. 623 (1905), that this section applies to criminal cases as well as civil cases. Trout v. Commonwealth, 167 Va. 511 , 188 S.E. 219 , 1936 Va. LEXIS 312 (1936); Moore v. Commonwealth, 202 Va. 667 , 119 S.E.2d 324, 1961 Va. LEXIS 162 (1961).

    What constitutes “adverse interest” defined. —

    By the use of the words “having an adverse interest,” in this section, the legislature intended to include, first, a party to the litigation, and, second, a person, though not a party, who had a financial or other personal interest in the outcome. The legislature did not mean to include a party merely because his testimony was or would be adverse to the party calling him. “Adverse interest” was used in its common and accepted meaning and was not used synonymously with “adverse testimony.” Butler v. Parrocha, 186 Va. 426 , 43 S.E.2d 1, 1947 Va. LEXIS 168 (1947); Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629, 1955 Va. LEXIS 202 (1955); Daniels v. Morris, 199 Va. 205 , 98 S.E.2d 694, 1957 Va. LEXIS 180 (1957).

    A contention that this section does not apply where a witness was not shown to have an adverse interest cannot be maintained. The section has expressly been held to apply where the witness has no adverse interest, but is shown to be adverse or hostile to the party introducing him. Nelson v. Commonwealth, 153 Va. 909 , 150 S.E. 407 , 1929 Va. LEXIS 297 (1929) (see Trout v. Commonwealth, 167 Va. 511 , 188 S.E. 219 (1936)).

    “A party” means a litigant and not a mere witness. This is emphasized by subsection B authorizing the court to dismiss the suit “of the party so refusing,” or to strike out the plea, answer, or other defense “of such party.” VEPCO v. Bowers, 181 Va. 542 , 25 S.E.2d 361, 1943 Va. LEXIS 202 (1943).

    Subsection B does not apply when attorney for defendant refuses to produce evidence. —

    Where attorney for defendant corporation refused to produce a statement of the operator of defendant’s street car which had been involved in an accident, the court was not authorized to strike out defendant’s plea of not guilty and order that the case proceed as on a writ of inquiry to assess the damages against defendant corporation. VEPCO v. Bowers, 181 Va. 542 , 25 S.E.2d 361, 1943 Va. LEXIS 202 (1943).

    Effect of testimony. —

    In an action for personal injuries, plaintiff called the defendant as a witness in order that he might cross-examine him, a right accorded by this section. While plaintiff might not be bound by such of defendant’s statements as might be in conflict with the evidence introduced on behalf of the plaintiff, plaintiff, the court, and the jury are bound by so much of the clear, logical testimony of the defendant as is reasonable and uncontradicted. Saunders v. Temple, 154 Va. 714 , 153 S.E. 691 , 1930 Va. LEXIS 243 (1930).

    Where defendant was called as an adverse witness by plaintiffs, plaintiffs were bound by so much of his testimony as was reasonable and uncontradicted. Crabtree v. Dingus, 194 Va. 615 , 74 S.E.2d 54, 1953 Va. LEXIS 126 (1953).

    A litigant is bound by the uncontradicted evidence of his opponent when not inherently improbable and counter to no reasonable inference and this is especially true where the evidence is elicited from the opponent when called as an adverse witness. Hailey v. Johnson, 201 Va. 775 , 113 S.E.2d 664, 1960 Va. LEXIS 159 (1960).

    CIRCUIT COURT OPINIONS

    When issue of adversity determined. —

    In a malicious prosecution action against a police officer, fellow officers were not adverse witnesses, under § 8.01-401 A, per se, to plaintiff; issue of adversity of witnesses would be determined at trial and not in motion in limine. Archer v. Fink, 56 Va. Cir. 253, 2001 Va. Cir. LEXIS 455 (Charlottesville July 13, 2001).

    Husband’s refusal to testify could not be used against him. —

    In a divorce proceeding, after a wife asserted the common law “sword and shield” doctrine and the sanctions under subsection B of § 8.01-401 , the court ruled that the husband’s refusal to testify about his alleged adultery could not be used against him. Moreover, the court upheld the notion that § 8.01-223.1 superseded the “sword and shield” doctrine in any case wherein a party’s refusal to testify was the result of the exercise of a constitutional privilege. Toth v. Toth, 2007 Va. Cir. LEXIS 266 (Fairfax County Dec. 17, 2007).

    § 8.01-401.1. Opinion testimony by experts; hearsay exception (subsection (a) of Supreme Court Rule 2:703, subsection (a) of Supreme Court Rule 2:705, and subsection (a) of Supreme Court Rule 2:706 derived from this section).

    In any civil action any expert witness may give testimony and render an opinion or draw inferences from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial during which he is called upon to testify. The facts, circumstances or data relied upon by such witness in forming an opinion or drawing inferences, if of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences, need not be admissible in evidence.

    The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

    To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by testimony or by stipulation, shall not be excluded as hearsay. If admitted, the statements may be read into evidence but may not be received as exhibits. If the statements are to be introduced through an expert witness upon direct examination, copies of the specific statements shall be designated as literature to be introduced during direct examination and provided to opposing parties 30 days prior to trial unless otherwise ordered by the court.

    If a statement has been designated by a party in accordance with and satisfies the requirements of this section, the expert witness called by that party need not have relied on the statement at the time of forming his opinion in order to read the statement into evidence during direct examination at trial.

    History. 1982, c. 392; 1994, c. 328; 2013, c. 379.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    The 2013 amendments.

    The 2013 amendment by c. 379, in the last sentence of the third paragraph, inserted “specific,” “designated as literature to be introduced during direct examination and” and made a minor stylistic change; and added the last paragraph.

    Law Review.

    For article on the admissibility of written health care standards in medical and hospital negligence actions in Virginia, see 18 U. Rich. L. Rev. 725 (1984).

    For article, “Improving Expert Testimony,” see 20 U. Rich. L. Rev. 473 (1986).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

    For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

    For article on medical malpractice law for the year 2007-2008, see 43 U. Rich. L. Rev. 227 (2008).

    For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

    For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).

    For Survey article, “Civil Practice and Procedure,” see 48 U. Rich. L. Rev. 1 (2013).

    For annual survey article, “Criminal Law and Procedure,” see 48 U. Rich. L. Rev. 63 (2013).

    Research References.

    Art of Advocacy: Cross Examination of Medical Experts (Matthew Bender). Houts.

    Michie’s Jurisprudence.

    For related discussion, see 7B M.J. Evidence, §§ 168, 169, 170.

    CASE NOTES

    The text of this section gives it no broader scope than that of the parent federal rules, and the court would not attribute to the General Assembly any purpose beyond that which motivated the federal drafters; the admission of hearsay expert opinion without the testing safeguard of cross-examination is fraught with overwhelming unfairness to the opposing party. McMunn v. Tatum, 237 Va. 558 , 379 S.E.2d 908, 5 Va. Law Rep. 2285, 1989 Va. LEXIS 85 (1989).

    Section limited to civil actions. —

    This section, which essentially adopts the view of the Federal Rules of Evidence 703 and 705, is expressly limited to “any civil action.” This limitation is a clear expression of legislative intent to retain the historic restrictions upon expert testimony in criminal cases in Virginia. Simpson v. Commonwealth, 227 Va. 557 , 318 S.E.2d 386, 1984 Va. LEXIS 226 (1984).

    Effect of 1994 amendment. —

    The 1994 amendment to this section made a substantive change in the statute. The statute as amended permits, in certain limited instances, the hearsay content of statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by testimony or by stipulation, to be read into the record as substantive evidence, provided no other evidentiary rule prohibits such admission. Weinberg v. Given, 252 Va. 221 , 476 S.E.2d 502, 1996 Va. LEXIS 85 (1996).

    No litigant in our judicial system is required to contend with the opinions of absent experts whose qualifications have not been established to the satisfaction of the court, whose demeanor cannot be observed by the trier of fact, and whose pronouncements are immune from cross-examination. McMunn v. Tatum, 237 Va. 558 , 379 S.E.2d 908, 5 Va. Law Rep. 2285, 1989 Va. LEXIS 85 (1989).

    Hypothetical questions are unnecessary where an expert testifies from his own knowledge of the facts disclosed in his testimony, or since 1982, where he renders an opinion from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial. Cantrell v. Commonwealth, 229 Va. 387 , 329 S.E.2d 22, 1985 Va. LEXIS 217 (1985).

    Proof of similarity of conditions existing at time of tests and facts. —

    The trial court should refuse to admit expert testimony unless there is proof of a similarity of conditions existing at the time of the expert’s tests and at the time relevant to the facts at issue. Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161 , 458 S.E.2d 462, 1995 Va. LEXIS 72 (1995).

    Expert cannot offer opinion testimony based on evidence that fails the substantial similarity test. —

    In a failure to warn claim against a manufacturer an expert cannot offer opinion testimony based on evidence that fails the substantial similarity test. Funkhouser v. Ford Motor Co., 285 Va. 272 , 736 S.E.2d 309, 2013 Va. LEXIS 7 (2013).

    Expert may express opinion and draw inferences from inadmissible sources. —

    The language of the statute clearly allows the expert to express an opinion or draw inferences from inadmissible sources, such as hearsay. M.E.D. v. J.P.M., 3 Va. App. 391, 350 S.E.2d 215, 3 Va. Law Rep. 1128, 1986 Va. App. LEXIS 374 (1986).

    Ordinarily inadmissible facts and data may be revealed in the context of expert opinion. —

    The sources of such ordinarily inadmissible “facts and data” may be revealed to the fact finder in the context of expert opinion, and disclosure of the information itself “may in any event be required on cross-examination.” Cox v. Oakwood Mining, Inc., 16 Va. App. 965, 434 S.E.2d 904, 10 Va. Law Rep. 182, 1993 Va. App. LEXIS 407 (1993).

    Thirty-day requirement. —

    When a party intends to introduce into evidence statements from published literature during the cross-examination of an opposing expert, but wishes to avoid the possibility that the opposing expert will not acknowledge that literature as a reliable authority on a particular matter at issue by having the party’s own expert establish the literature as a reliable authority on direct examination, the party must provide opposing counsel with copies of the statements in the literature 30 days before trial pursuant to § 8.01-401.1 .Budd v. Punyanitya, 273 Va. 583 , 643 S.E.2d 180, 2007 Va. LEXIS 56 (2007).

    Qualification of an expert witness does not insure admission of his every statement and opinion since this section allows an expert to express an opinion without initially disclosing the basis for the opinion and to base the opinion on hearsay evidence otherwise inadmissible but it does not, however, relieve the court from its responsibility, when proper objection is made, to determine whether the factors required to be included in formulating the opinion were actually utilized. Swiney v. Overby, 237 Va. 231 , 377 S.E.2d 372, 5 Va. Law Rep. 1754, 1989 Va. LEXIS 30 (1989).

    Expert testimony admitted without proper foundation. —

    Licensed auctioneer should not have been allowed to testify that real estate auctioned a second time generally sold at a lower price, without being required to consider whether the facts in the case at issue would have led to a different conclusion, as this testimony lacked an adequate foundation. Forbes v. Rapp, 269 Va. 374 , 611 S.E.2d 592, 2005 Va. LEXIS 47 (2005).

    Trial court erred in entering judgment for the employee on his claim pursuant to the Federal Employers’ Liability Act, 45 U.S.C.S. § 51 et seq. (FELA), in which he alleged that his employer failed to provide him with a safe workplace and, as a result, he developed silicosis from working with ballast that contained silica dust; although the standard of proof in a FELA action was more lenient than in a common-law action, the trial court erred in admitting the employee’s expert testimony regarding the employee’s exposure to silica dust since the expert’s testimony that the employee was exposed to amounts of silica dust that exceeded reasonably safe levels lacked an adequate factual foundation, and, thus, the employee did not show any act of negligence on the employer’s part. Norfolk S. Ry. v. Rogers, 270 Va. 468 , 621 S.E.2d 59, 2005 Va. LEXIS 101 (2005).

    Opinion of the expert’s driver that the soft top’s latching system was defectively designed was inadmissible where the opinion was premised on the unfounded assumptions that the latches would not have disconnected had they been designed differently and that the front end of the roof structure would not have collapsed if the latches had remained connected. Holiday Motor Corp. v. Walters, 292 Va. 461 , 790 S.E.2d 447, 2016 Va. LEXIS 111 (2016).

    Expert’s reliance upon hearsay is a matter affecting weight to be given to his conclusions. M.E.D. v. J.P.M., 3 Va. App. 391, 350 S.E.2d 215, 3 Va. Law Rep. 1128, 1986 Va. App. LEXIS 374 (1986).

    Although appellant argued that in various respects expert’s conclusions were open to challenge, any such weaknesses in his testimony were not grounds for its exclusion, but were matters properly to be considered by the jury in determining the weight to be given the evidence. Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161 , 458 S.E.2d 462, 1995 Va. LEXIS 72 (1995).

    This section does not authorize the admission in evidence, upon the direct examination of an expert witness, of hearsay matters of opinion upon which the expert relied in reaching his own opinion, notwithstanding the fact that the opinion of the expert witness is itself admitted, and not withstanding the fact that the hearsay is of a type normally relied upon by others in the witness’ particular field of expertise. McMunn v. Tatum, 237 Va. 558 , 379 S.E.2d 908, 5 Va. Law Rep. 2285, 1989 Va. LEXIS 85 (1989).

    Expert’s testimony based on facts, not hearsay opinions. —

    Trial court properly allowed expert in parental rights termination proceeding to testify that children were alleged to have engaged in panhandling, despite mother’s denial, since expert’s opinion was based on events amply demonstrated by other sources. Expert’s opinion was based upon facts, not hearsay opinions, and thus fell within scope of this section. Patterson v. Nottoway County Dep’t of Social Servs., No. 2528-99-2 (Ct. of Appeals Mar. 28, 2000).

    Expert opinion testimony based on hearsay factual information. —

    Expert opinion testimony is frequently based on hearsay factual information, and that is no bar to admission of the expert opinion in a civil case. Bowers v. Huddleston, 241 Va. 83 , 399 S.E.2d 811, 7 Va. Law Rep. 1320, 1991 Va. LEXIS 14 (1991).

    Where a psychologist interviewed a mother’s children to determine whether the mother told blatant mistruths or whether her perception of things was radically different from that of others, it was proper to permit the psychologist to testify concerning factual information reported to her by the children. The psychologist’s opinion was based upon facts, not hearsay opinions, and fell within the scope of this section. Patterson v. Nottoway County Dep't of Social Servs., 2000 Va. App. LEXIS 234 (Va. Ct. App. Mar. 28, 2000).

    A medical expert’s recital of the confirming opinion of an absent physician is inadmissible hearsay. CSX Transp., Inv. v. Casale, 247 Va. 180 , 441 S.E.2d 212, 10 Va. Law Rep. 945, 1994 Va. LEXIS 47 (1994).

    Testimony based on mere assumption with no evidentiary support. —

    This section does not sanction the admission of expert testimony based upon a mere assumption which has no evidentiary support. Lawson v. Doe, 239 Va. 477 , 391 S.E.2d 333, 6 Va. Law Rep. 2026, 1990 Va. LEXIS 69 (1990).

    Expert testimony is inadmissible if it is speculative or founded on assumptions that have no basis in fact. Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161 , 458 S.E.2d 462, 1995 Va. LEXIS 72 (1995).

    Since plaintiffs did not comply with Va. Sup. Ct. R. 4:1 to disclose the nature of the expert’s opinion and the facts upon which he was going to rely to reach that opinion, the defendants were not considered to have waived their objection to the expert’s opinion testimony when the expert was permitted to testify. Vasquez v. Mabini, 269 Va. 155 , 606 S.E.2d 809, 2005 Va. LEXIS 10 (2005).

    Judgment related to damages to the plaintiffs, the estate and heirs of woman killed when struck from behind by a bus, was reversed since, under § 8.01-401.1 and Va. Sup. Ct. R. 5:25, the trial court should have struck the expert’s loss of income damage opinion testimony after finding that opinion was based on factual assumptions that were not supported by the evidence: such as the woman’s ability to earn a certain amount per hour if she obtained a certain type of job, the potential employer’s willingness to contribute a certain amount to a retirement plan, the life expectancy of a son who was known to have died after the woman died, and the woman’s husband’s life expectancy as related to the value of her household services. Vasquez v. Mabini, 269 Va. 155 , 606 S.E.2d 809, 2005 Va. LEXIS 10 (2005).

    Circuit court erred in admitting the opinion testimony of a designated expert witness, who testified that the location of the side airbag sensor in a driver’s vehicle rendered the vehicle unreasonably dangerous; the expert’s opinion was without sufficient evidentiary support because it was premised upon the expert’s assumption that the side airbag would have deployed if the sensor was at his proposed location, an assumption that lacked a sufficient factual basis. Hyundai Motor Co. v. Duncan, 289 Va. 147 , 766 S.E.2d 893, 2015 Va. LEXIS 3 (2015).

    Speculative expert testimony should not have been admitted. —

    Licensed auctioneer should not have been allowed to state a figure “off the top of his head” as to the percentage at which the sales price would decrease upon a re-auction, as he conceded that he lacked a factual basis for rendering such an opinion, and the opinion was speculative. Forbes v. Rapp, 269 Va. 374 , 611 S.E.2d 592, 2005 Va. LEXIS 47 (2005).

    Physician’s opinion not speculative. —

    Opinion of a treating physician who examined a diner less than two days after the onset of her illness, which opinion was that the cause of the diner’s illness was food poisoning, was based sufficiently on facts known to him and was not speculative where he analyzed the factors discussed in his testimony, reviewed the emergency room report prepared the previous evening, and considered testing that excluded other causes of the illness. Bussey v. E.S.C. Rests. Inc., 270 Va. 531 , 620 S.E.2d 764, 2005 Va. LEXIS 91 (2005).

    Opinion may not be based on facts not in evidence. —

    Generally, an expert witness in Virginia has not been permitted to base his opinion on facts not in evidence. Simpson v. Commonwealth, 227 Va. 557 , 318 S.E.2d 386, 1984 Va. LEXIS 226 (1984).

    Consideration of all variables bearing on inferences drawn from facts. —

    Expert testimony should not be admitted unless the trial court is satisfied that the expert has considered all the variables bearing on the inferences to be drawn from the facts observed. Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161 , 458 S.E.2d 462, 1995 Va. LEXIS 72 (1995).

    Witness properly prohibited from testifying concerning the cause of death set forth in a death certificate. —

    In a wrongful death action, the trial court properly directed the jury to disregard testimony by a witness concerning the cause of death set forth in a decedent’s death certificate, because for purposes of § 8.01-401.1 , the record was devoid of any evidence that the witness relied on the death certificate and its statement as to the cause of death in forming his opinions about which he testified. Holmes v. Levine, 273 Va. 150 , 639 S.E.2d 235, 2007 Va. LEXIS 23 (2007).

    An opponent of expert evidence need not wait until after the evidence has been admitted to assert a challenge, but may raise a challenge prior to trial by a motion to exclude the evidence or at trial by examining the expert, out of the presence of the jury, prior to a ruling on the admissibility of the test results; furthermore, the proponent of the evidence may be required to make a prior disclosure of the underlying facts or data relied on by the expert if the opponent of the evidence objects to admissibility of the test results or the expert’s opinion. Commonwealth ex rel. Evans v. Harrison, 5 Va. App. 8, 360 S.E.2d 212, 4 Va. Law Rep. 351, 1987 Va. App. LEXIS 264 (1987).

    When read together, this section and § 20-61.2 (see now § 20-49.3 ) allow the admission of the results of human leukocyte antigen blood tests and a properly qualified expert’s opinion concerning the results; once the expert has testified that the blood samples tested were those of the parties involved, that his conclusion is based upon facts, circumstances, or data made known to or perceived by him and normally relied upon by others in his field of expertise, the test results and his expert opinion are prima facie admissible. Commonwealth ex rel. Evans v. Harrison, 5 Va. App. 8, 360 S.E.2d 212, 4 Va. Law Rep. 351, 1987 Va. App. LEXIS 264 (1987).

    Unnecessarily narrow construction of § 65.2-504 . —

    By declining to permit consideration of the autopsy evidence in conjunction with the several conflicting opinions from the radiographic evidence, through both direct and cross-examination of the experts, the commission adopted an unnecessarily narrow construction of § 65.2-504 (former § 65.1-56.1). Cox v. Oakwood Mining, Inc., 16 Va. App. 965, 434 S.E.2d 904, 10 Va. Law Rep. 182, 1993 Va. App. LEXIS 407 (1993).

    Harmless error in admission of improper evidence. —

    Although a gang notebook and a police detective’s connected expert testimony were inadmissible hearsay, in light of the strength of the prosecution’s evidence, particularly that which duplicated information in the notebook, the error in admitting the notebook and the limited related testimony was harmless as it had no substantial influence on the verdicts against defendant. Holloman v. Commonwealth, 65 Va. App. 147, 775 S.E.2d 434, 2015 Va. App. LEXIS 245 (2015).

    Admission of hearsay testimony held reversible error. —

    In an action by an employee against a railroad company under the Federal Employer’s Liability Act, 45 U.S.C. § 51 et seq., alleging personal injury, admission of hearsay consisting of testimony by one physician regarding a new and different diagnosis by another physician was material and prejudicial to the railroad’s defense on the issue of damages, and therefore, constituted reversible error. CSX Transp., Inv. v. Casale, 247 Va. 180 , 441 S.E.2d 212, 10 Va. Law Rep. 945, 1994 Va. LEXIS 47 (1994).

    Because the defense was allowed to read to the jury opinions of absent authors to the effect that maternal propulsive forces were the cause of Erb’s palsy, to the exclusion of all other causes, to display the articles on projected slides, and to argue that opinion to the jury as a fact in evidence, no expert witness testified to that view, the jury was unable to see and hear the author who expressed it, and a mother was, of course, unable to subject the opinion to the test of cross-examination, the introduction of the evidence violated § 8.01-401.1 .Bostic v. About Women OB/GYN, P.C., 275 Va. 567 , 659 S.E.2d 290, 2008 Va. LEXIS 46 (2008).

    Expert’s testimony failed to meet the fundamental requirements. There was no showing that the crash tests relied upon were conducted under conditions similar to those existing at the accident scene. More importantly, the expert never examined the vehicles involved in the collision; rather, he relied solely upon the photographs of the vehicles to determine the permanent crash damage thereto. Tittsworth v. Robinson, 252 Va. 151 , 475 S.E.2d 261, 1996 Va. LEXIS 78 (1996).

    Expert’s testimony properly admitted. —

    Trial court did not err in admitting the testimony of a woman deemed to be an expert in the field of international child abduction in a custody case where the child and husband held dual United States-Syria citizenship and the husband threatened to take the child to Syria, as the expert was shown to be appropriately qualified on the subject, the subject was relevant given the husband’s threats to take the child to Syria in light of the fact that Syria did not respect the laws of the United States, and the husband’s only objection was that she had no knowledge of the husband or his background. Samman v. Steber, 2005 Va. App. LEXIS 104 (Va. Ct. App. Mar. 15, 2005).

    Admission of an expert’s testimony concerning the out-of-court statements by the child was proper under § 8.01-401.1 .Anderson v. City of Hampton Dep't of Soc. Servs., 2007 Va. App. LEXIS 288 (Va. Ct. App. July 31, 2007).

    Trial court did not abuse its discretion by permitting a husband’s expert witness to testify and admitting the expert’s report into evidence because it was not plainly wrong in evaluating the expert’s testimony and considering his report since it clearly stated it disregarded any part that contained inadmissible evidence; the trial court sitting as fact finder had the unique ability to disregard inadmissible evidence and make its determination based on the admissible evidence provided. Chapin v. Chapin, 2017 Va. App. LEXIS 225 (Va. Ct. App. Aug. 29, 2017).

    Trial court did not abuse its discretion in allowing the opinions of a husband’s expert to be entered into evidence, whether through his testimony or in his report, because the wife did not identify any hearsay upon which the expert relied in forming his opinions. Chapin v. Chapin, 2017 Va. App. LEXIS 225 (Va. Ct. App. Aug. 29, 2017).

    Hearsay improperly admitted. —

    Order adjudicating defendant to be a sexually violent predator was reversed because an expert’s opinions, which were dependent upon the truth of hearsay allegations unsupported by evidence properly presented at trial, were speculative and unreliable as a matter of law and were erroneously admitted into evidence. Lawrence v. Commonwealth, 279 Va. 490 , 689 S.E.2d 748, 2010 Va. LEXIS 21 (2010).

    In a wrongful death case arising from an airplane accident, it was error to admit a report under the learned treatise hearsay exception because (1) the report was not the type of authoritative material the rule contemplated, (2) the report was prepared for litigation while the report’s author was a defendant in the case, and (3) neither testimony nor a stipulation established that the report was authoritative. Harman v. Honeywell Int'l, Inc., 288 Va. 84 , 758 S.E.2d 515, 2014 Va. LEXIS 97 (2014).

    “Rental Rate Blue Book for Construction Equipment” was inadmissible hearsay where no expert witness tendered an opinion based on reference to that book and, instead, the book itself was tendered as authoritative evidence of its contents. Commonwealth v. Asphalt Roads & Materials, Inc., 1998 Va. App. LEXIS 134 (Va. Ct. App. Mar. 3, 1998).

    Cumulative evidence. —

    Although the statements in medical journals and articles that the executor intended to have his expert read into the record adequately identified the statements, the trial court did not err in prohibiting their introduction because they were cumulative of other evidence and their sheer volume could have overwhelmed and confused the jury. May v. Caruso, 264 Va. 358 , 568 S.E.2d 690, 2002 Va. LEXIS 93 (2002).

    Hearsay testimony properly excluded. —

    Trial court properly barred doctor’s testimony from testifying at trial regarding an intraoperative consultation with another doctor, as the other doctor had no recollection of such events, and, thus, the doctor’s testimony about the consultation was inadmissible hearsay because it would only have been offered for the truth of the matter asserted. Wright v. Kaye, 267 Va. 510 , 593 S.E.2d 307, 2004 Va. LEXIS 48 (2004).

    Trial court ruling precluding admission of an expert’s testimony or written report detailing allegations of sexual misconduct by the inmate made by children other than the victim was proper, because the evidence relied on by the expert, which came from the expert’s review of a file maintained by the assistant Commonwealth’s attorney, was hearsay and thus, inadmissible. Commonwealth v. Wynn, 277 Va. 92 , 671 S.E.2d 137, 2009 Va. LEXIS 13 (2009).

    Expert testimony improperly admitted. —

    In a medical malpractice action, a defense expert’s differential diagnosis was founded upon an assumption that was not established during the trial. The circuit court abused its discretion in admitting the defense expert’s testimony because it was based upon an assumption that had no basis in fact. Toraish v. Lee, 293 Va. 262 , 797 S.E.2d 760, 2017 Va. LEXIS 61 (2017).

    CIRCUIT COURT OPINIONS

    This section does not authorize the admission in evidence of hearsay matters of opinion. —

    In an action by co-administrators against a police officer, arising out of the officer’s collision with a bystander during a high-speed chase, the co-administrators’ expert witnesses could offer opinions based on the hearsay opinions of police officers, but those hearsay opinions were not themselves admissible. Hawthorne v. Lavinder, 72 Va. Cir. 375, 2006 Va. Cir. LEXIS 271 (Roanoke County Dec. 29, 2006).

    This section does not authorize the admission in evidence, upon the direct examination of an expert witness, of hearsay matters of opinion upon which the expert relied in reaching his own opinion, notwithstanding the fact that the opinion of the expert witness is itself admitted, and notwithstanding the fact that the hearsay is of a type normally relied upon by others in the witness’s particular field of expertise, so a trial court, while permitting an expert witness to state his own conclusions on direct examination, correctly excludes the hearsay opinions upon which he relies. Hawthorne v. Lavinder, 72 Va. Cir. 375, 2006 Va. Cir. LEXIS 271 (Roanoke County Dec. 29, 2006).

    Expert’s testimony based on speculation. —

    Where a treating psychiatrist’s testimony was based upon speculation as to causation, it was contrary to to § 8.01-401.1 ; accordingly, a police officer’s objections, by way of a motion in limine, to the psychiatrist’s entire testimony were sustained and the testimony would not be offered to the jury. Haskins v. Richardson, 62 Va. Cir. 160, 2003 Va. Cir. LEXIS 270 (Richmond June 13, 2003).

    Gas company was entitled to exclude the revised appraisal reports of two experts about damages flowing from a shipyard owner’s inability to build a pier in a river due to the gas company’s 30-foot-wide, high-pressure natural gas pipeline easement that divided the owner’s property because, while there was evidence that the presence of the easement significantly reduced the property’s desirability and utility, the experts’ complete lack of explanation about how they arrived at damages valuations of approximately $9,000,000 rendered their damages opinions speculative, unverifiable, and completely untethered from the ostensible market data gleaned from the conversations with shipyard owners. Va. Nat. Gas, Inc. v. Colonna's Ship Yard Inc., 104 Va. Cir. 331, 2020 Va. Cir. LEXIS 72 (Norfolk Mar. 12, 2020).

    Expert’s testimony was not hearsay. —

    Plaintiff’s motion to strike, pursuant to § 8.01-276 , a doctor’s testimony on grounds that the testimony constituted an improper attempt to introduce the opinions of two other doctors was denied; § 8.01-401.1 permitted an expert witness to render an opinion that was based on data that might not be admissible in evidence, and the doctor repeatedly stated that he neither consulted nor relied upon the reports of the other two doctors, and defendant did not attempt to argue substantively the contents of the other doctors’ reports. Young v. Waddell, 60 Va. Cir. 264, 2002 Va. Cir. LEXIS 417 (Danville Oct. 24, 2002).

    Learned treatise doctrine. —

    Term “to suggest” does not imply or state a reasonable degree of scientific probability. Although a physician could not testify about a possible or suggested diagnosis or result in a case based on his personal treatment, the learned treatise doctrine ostensibly permits the introduction of such problematical scientific evidence, so long as the expert witness testifies that the article containing the problematical statement is reliable. Boyer v. Dabinett, 74 Va. Cir. 19, 2007 Va. Cir. LEXIS 268 (Winchester Feb. 28, 2007).

    Toxicologist could rely on medical examiner’s report when testifying. —

    Forensic toxicologist was permitted to testify using a report of investigation by the medical examiner as part of the data upon which he would rely. West v. Berry, 66 Va. Cir. 3, 2004 Va. Cir. LEXIS 252 (Amherst County Feb. 12, 2004).

    Based on the disinterested role an expert witness is expected to play at trial, merely retaining an individual to act as an expert witness is insufficient to create an employer-employee relationship. Sutherlin v. White, 71 Va. Cir. 184, 2006 Va. Cir. LEXIS 251 (Norfolk June 23, 2006).

    Expert witness is not party’s employee. —

    As plaintiff lacked the power to control the manner in which an expert witness reached his conclusion, the expert was not plaintiff’s servant or employee. Therefore, the court granted the expert’s demurrer to plaintiff’s claim that the expert breached the fiduciary duty of a servant to a master. Sutherlin v. White, 71 Va. Cir. 184, 2006 Va. Cir. LEXIS 251 (Norfolk June 23, 2006).

    Statistical confidence or reliability. —

    For every percentage or statistic read to a jury, an expert witness shall be asked by the examiner at the time of introduction of the statement the following questions: (1) Does the article from which you just read those figures contain a statement of the statistical confidence or reliability of the figures which you just read? (2) If so, what does that measure of statistical confidence tell you about the reliability of those figures? (3) If not, does the absence of such a measure of statistical confidence in the article have any effect upon your ability to assess the reliability of the figures which you just read? (4) If so, what does that measure of statistical confidence tell you about the reliability of those figures? (5) If not, does the absence of such a measure of statistical confidence in the article have any effect upon your ability to assess the reliability of the figures which you just read?.Boyer v. Dabinett, 74 Va. Cir. 19, 2007 Va. Cir. LEXIS 268 (Winchester Feb. 28, 2007).

    Unless a witness has knowledge of the procedure by which letters to the editor are accepted by the journal that printed them or personally knows the author, there is no way that the witness can certify that the authority cited is reliable. Boyer v. Dabinett, 74 Va. Cir. 19, 2007 Va. Cir. LEXIS 268 (Winchester Feb. 28, 2007).

    Statistical evidence in scientific treatises. —

    Where a scientific article weighs the strength of the statistical evidence, this is the type of result that, in appropriate circumstances, could be read to a jury. If measures of statistical confidence are not expressed in the article, the data cannot be scientifically assessed, and the results, although neatly presented mathematically, are purely a collection of figures based on personal observations specific only to the group studied; any inference drawn from such data about the population in general or to a specific case is the author’s guesstimate based on his personal experience and not a scientific estimate. Boyer v. Dabinett, 74 Va. Cir. 19, 2007 Va. Cir. LEXIS 268 (Winchester Feb. 28, 2007).

    Insufficient factual basis. —

    In this eminent domain case, evidence regarding a buffer zone was excluded; the owner’s chief executive officer admitted that regulations the gas company relied on to construct the pipeline did not apply to the owner’s shipyard operations, and the owner self-imposed the buffer zone as a matter of business judgment. Thus, any expert opinion suggesting that the regulations required the owner to account for a buffer zone had an insufficient factual basis and made any such testimony speculative and unreliable. Va. Natural Gas v. Colonna's Ship Yard, Inc., 2019 Va. Cir. LEXIS 1205 (Norfolk Oct. 31, 2019), aff'd, No. 200949, 2021 Va. Unpub. LEXIS 33 (Va. Dec. 9, 2021).

    Owner had not designated any areas for hot work under the regulations, and thus one particular regulation did not apply and did not provide a basis for the expert’s opinion; the expert could offer his opinion only if he identified either another OSHA regulation that required the owner to implement additional safety measures or evidence that the gas company inaccurately represented where it located or how it constructed the pipeline that the natural gas had not been physically isolated. Va. Natural Gas v. Colonna's Ship Yard, Inc., 2019 Va. Cir. LEXIS 1205 (Norfolk Oct. 31, 2019), aff'd, No. 200949, 2021 Va. Unpub. LEXIS 33 (Va. Dec. 9, 2021).

    Plaintiff’s expert lacked an adequate factual foundation for his opinions, and thus the court granted defendant’s motion in limine to exclude the expert’s testimony; neither his report nor his deposition testimony permitted the court to determine if population data within a certain software program satisfied Va. Code Ann. § 8.01-401.1 . Small v. Norfolk S. Ry. Co., 108 Va. Cir. 362, 2021 Va. Cir. LEXIS 197 (Norfolk Aug. 13, 2021).

    Weight and credibility of scientific authorities. —

    Statistician was probably the best person to opine upon the reliability of figures derived from any scientific study cited as opposed to a physician, particularly if the physician has no training in statistics and the data that he opines is reliable is stated in simple raw percentages. These issues all go to the weight to be ascribed to the authorities by the jury, and these limitations can be revealed by cross examination and argued to the jury. Boyer v. Dabinett, 74 Va. Cir. 19, 2007 Va. Cir. LEXIS 268 (Winchester Feb. 28, 2007).

    Appropriate foundation required. —

    If the party could set forth the appropriate foundation to establish that the interviews in question were of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences, then the experts could testify to opinions that they formed in reliance upon such information, but the court would not admit the hearsay statements themselves into evidence. Va. Natural Gas v. Colonna's Ship Yard, Inc., 2019 Va. Cir. LEXIS 1205 (Norfolk Oct. 31, 2019), aff'd, No. 200949, 2021 Va. Unpub. LEXIS 33 (Va. Dec. 9, 2021).

    Thirty-day requirement. —

    Motion to set aside the jury’s verdict was granted because under § 8.01-401.1 a party wishing to have its own witness establish on direct examination that published literature was a reliable authority on a particular issue had to provide opposing counsel with copies of the statements in the literature 30 days before trial, which defendants failed to do. Durand v. Richards, 78 Va. Cir. 432, 2009 Va. Cir. LEXIS 193 (Roanoke July 29, 2009).

    Testimony admissible. —

    Due to the differences in the victim’s and a witness’s accounts of their “date rapes,” the witness could not testify at trial, and the victim’s motion to reconsider was denied; nevertheless, although evidence of drugging was excluded, the non-physician experts could testify and the expert designations could be amended. Hylton v. Hamilton, 68 Va. Cir. 305, 2005 Va. Cir. LEXIS 197 (Charlottesville Aug. 3, 2005).

    Scientific articles that were replete with recitations to observations based on finite date sets, not on randomized studies could be read to a jury if the proponent’s experts identified the articles as authoritative. Boyer v. Dabinett, 74 Va. Cir. 19, 2007 Va. Cir. LEXIS 268 (Winchester Feb. 28, 2007).

    When an expert witness’s testimony combines statements of opinion and assertions of fact, the cross-examiner has the right, under § 8.01-401.1 , to require the witness to furnish specifics about the underlying facts or data upon which he relied; the cross-examiner probes as far as he chooses to go. He cannot ask the court to conclude that, if he had asked more questions, weaknesses in the opposing party’s case would have been exposed. Simmons v. MTD Prods., 75 Va. Cir. 63, 2008 Va. Cir. LEXIS 224 (Roanoke Feb. 29, 2008).

    In medical malpractice action, plaintiff’s motion to set aside the verdict and grant a new trial was denied because the court did not err in allowing defense counsel to ask plaintiff’s expert witness about articles that the expert did not accept as authoritative; because the issue in the case was the standard of care, not in 2009, but in 2000, the court found that the expert “accepted” the article for the purposes of § 8.01-401.1 as a reliable authority back in 2000, the time in which defendant doctor would have relied upon it. Lloyd v. Kime, 79 Va. Cir. 302, 2009 Va. Cir. LEXIS 260 (Rockingham County Sept. 21, 2009).

    Expert’s opinion was admissible in a report at a proceeding to civilly commit defendant as a sexually violent predator because the expert had an adequate factual foundation to make the determination that defendant suffered from the mental abnormality of pedophilia. Further, the expert’s determination with respect to the risk that defendant would find it difficult to control defendant’s predatory behavior, which made defendant likely to engage in sexually violent acts, was proper. Commonwealth v. Reed, 89 Va. Cir. 1, 2014 Va. Cir. LEXIS 136 (Augusta County Feb. 26, 2014).

    Testimony of a doctor’s expert was proper because the expert did not rely on an assumption but on the information reasonably relied on by other physicians in the same field to make his interpretation of the medical record from the patient’s emergency department visit; the expert reasonably relied on the knowledge that came from his specialized training and expertise, such as would any other emergency physician testifying in his place. Mitchell v. Cox, 2019 Va. Cir. LEXIS 347 (Wise County Jan. 17, 2019).

    Information about which experts intended to testify largely pertained to the facts, circumstances, and data that affected their opinions about the just compensation owed to the owner, and none of that testimony constituted a legal opinion; thus, the experts were permitted to offer their interpretations of how the easement affected the value of the owner’s property. Va. Natural Gas v. Colonna's Ship Yard, Inc., 2019 Va. Cir. LEXIS 1205 (Norfolk Oct. 31, 2019), aff'd, No. 200949, 2021 Va. Unpub. LEXIS 33 (Va. Dec. 9, 2021).

    § 8.01-401.2. Chiropractor, nurse practitioner, or physician assistant as expert witness.

    1. A doctor of chiropractic, when properly qualified, may testify as an expert witness in a court of law as to etiology, diagnosis, prognosis, treatment, treatment plan, and disability, including anatomical, physiological, and pathological considerations within the scope of the practice of chiropractic as defined in § 54.1-2900.
    2. A physician assistant or nurse practitioner, when properly qualified, may testify as an expert witness in a court of law as to etiology, diagnosis, prognosis, treatment, treatment plan, and disability, including anatomical, physiological, and pathological considerations within the scope of his activities as authorized pursuant to § 54.1-2952 or 54.1-2957, respectively. However, no physician assistant or nurse practitioner shall be permitted to testify as an expert witness for or against (i) a defendant doctor of medicine or osteopathic medicine in a medical malpractice action regarding the standard of care of a doctor of medicine or osteopathic medicine or (ii) a defendant health care provider in a medical malpractice action regarding causation.

    History. 1984, c. 569; 2014, cc. 361, 391; 2015, cc. 295, 306; 2017, c. 413.

    Editor’s note.

    Acts 2015, cc. 295 and 306, cl. 2 provides: “Nothing in this act, § 8.01-401.2:1 , or § 8.01-401.3 shall be construed as a codification of Rule 702 of the Federal Rules of Evidence as presently construed.”

    The 2014 amendments.

    The 2014 amendments by cc. 361 and 391 are identical, and designated the existing provision as subsection A, and inserted “treatment, treatment plan”; and added subsection B.

    The 2015 amendments.

    The 2015 amendments by cc. 295 and 306 are identical, and twice inserted “or nurse practitioner” following “physician assistant” in subsection B.

    The 2017 amendments.

    The 2017 amendment by c. 413 inserted “or 54.1-2957, respectively” in the first sentence of subsection B.

    CIRCUIT COURT OPINIONS

    Foundation. —

    Trial court granted the alleged tortfeasor’s motion to exclude the medical doctor’s testimony at trial in a case where the alleged tortfeasor was involved in an auto accident with the injured party, and the injured party was treated both by a chiropractor and the medical doctor; the medical doctor stated in his medical notes that he was “unable to speak to causation or permanency” and the chiropractor could not lay the foundation for admission of the medical doctor’s testimony because the practice of medicine, as defined in § 54.1-2900, was broader than the practice of chiropractor. Cantrell v. Eshelman, 67 Va. Cir. 214, 2005 Va. Cir. LEXIS 22 (Roanoke Apr. 4, 2005).

    Causation. —

    Testimony of two podiatrists as to causation was excluded as the absence of the term “diagnosis” in the definition of the practice of podiatry in § 54.1-2900 implicitly restricted a podiatrist’s ability to give expert testimony, and the difference in practice for podiatrists and medical doctors was underscored by the fact that there were separate licensing standards under § 54.1-2931; although the rule on chiropractors had been eliminated in § 8.01-401.2 , it had not been eliminated for podiatrists. The ability to treat a physical condition did not necessarily include the skill and experience to link that physical condition to a specific cause. Hollingsworth v. Norfolk S. Ry. Co., 2008 Va. Cir. LEXIS 113 (Roanoke County Sept. 2, 2008).

    § 8.01-401.2:1. Podiatrist as an expert witness.

    A podiatrist shall not be permitted to testify as an expert witness against a doctor of medicine or osteopathic medicine in connection with a medical malpractice civil court proceeding or a medical malpractice review panel in any case where the doctor or osteopath is a defendant in such proceeding.

    History. 2010, cc. 715, 725.

    Editor’s note.

    Acts 2010, cc. 715 and 725, cl. 2 provides: “That an emergency exists and this act is in force from its passage [April 13, 2010].”

    Acts 2015, cc. 295 and 306, cl. 2 provides: “Nothing in this act, § 8.01-401.2:1 , or § 8.01-401.3 shall be construed as a codification of Rule 702 of the Federal Rules of Evidence as presently construed.”

    Law Review.

    For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).

    § 8.01-401.3. Opinion testimony and conclusions as to facts critical to civil case resolution (Supreme Court Rule 2:701 derived from subsection B of this section, subdivision (a)(i) of Supreme Court Rule 2:702 derived from subsection A of this section, and subsection (a) of Supreme Court Rule 2:704 derived from subsections B and C of this section).

    1. In a civil proceeding, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
    2. No expert or lay witness while testifying in a civil proceeding shall be prohibited from expressing an otherwise admissible opinion or conclusion as to any matter of fact solely because that fact is the ultimate issue or critical to the resolution of the case. However, in no event shall such witness be permitted to express any opinion which constitutes a conclusion of law.
    3. Except as provided by the provisions of this section, the exceptions to the “ultimate fact in issue” rule recognized in the Commonwealth prior to enactment of this section shall remain in full force.

    History. 1993, c. 909.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    Acts 2015, cc. 295 and 306, cl. 2 provides: “Nothing in this act, § 8.01-401.2:1 , or § 8.01-401.3 shall be construed as a codification of Rule 702 of the Federal Rules of Evidence as presently construed.”

    Law Review.

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attorney and Client, § 30.

    CASE NOTES

    Expert testimony is inadmissible if it is speculative or founded on assumptions that have no basis in fact. Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161 , 458 S.E.2d 462, 1995 Va. LEXIS 72 (1995).

    When expert testimony admissible. —

    Expert testimony is admissible where the jury is confronted with issues that require scientific or specialized knowledge or experience in order to be properly understood and which cannot be determined intelligently merely from the deductions made and inferences drawn on the basis of ordinary knowledge, common sense and practical experience gained in the ordinary affairs of life. Holmes v. Doe, 257 Va. 573 , 515 S.E.2d 117, 1999 Va. LEXIS 57 (1999).

    Trial court did not abuse its discretion in allowing a counselor and two clinical psychologists to provide their custody and visitation recommendation, as they were professional determinations and not legal conclusions. Padula-Wilson v. Wilson, 2015 Va. App. LEXIS 123 (Va. Ct. App. Apr. 14, 2015).

    When expert evidence inadmissible. —

    When the issue to be decided involves matters of common knowledge or those as to which the jury are as competent to form an intelligent and accurate opinion as the expert witness, expert evidence is inadmissible. Holcombe v. Nationsbank Fin. Servs. Corp., 248 Va. 445 , 450 S.E.2d 158, 1994 Va. LEXIS 140 (1994).

    Trial court erred in entering judgment for the employee on his claim pursuant to the Federal Employers’ Liability Act, 45 U.S.C.S. § 51 et seq. (FELA), in which he alleged that his employer failed to provide him with a safe workplace and, as a result, he developed silicosis from working with ballast that contained silica dust; although the standard of proof in a FELA action was more lenient than in a common-law action, the trial court erred in admitting the employee’s expert testimony regarding the employee’s exposure to silica dust since the expert’s testimony that the employee was exposed to amounts of silica dust that exceeded reasonably safe levels lacked an adequate factual foundation, and, thus, the employee did not show any act of negligence on the employer’s part. Norfolk S. Ry. v. Rogers, 270 Va. 468 , 621 S.E.2d 59, 2005 Va. LEXIS 101 (2005).

    In an action after a farmer was injured when a disc mower exploded and injected burning hydraulic fluid into the farmer’s hand, the trial court erred in admitting opinion testimony of a hose expert and a hydraulics systems expert; the only basis for the hose expert’s testimony of a manufacturing defect was the hose’s failure, and the hydraulic systems expert admitted that the expert was not an expert in the hydraulic systems of mowers. CNH Am. LLC v. Smith, 281 Va. 60 , 704 S.E.2d 372, 2011 Va. LEXIS 15 (2011).

    Circuit court erred in admitting the opinion testimony of a designated expert witness, who testified that the location of the side airbag sensor in a driver’s vehicle rendered the vehicle unreasonably dangerous; the expert’s opinion was without sufficient evidentiary support because it was premised upon the expert’s assumption that the side airbag would have deployed if the sensor was at his proposed location, an assumption that lacked a sufficient factual basis. Hyundai Motor Co. v. Duncan, 289 Va. 147 , 766 S.E.2d 893, 2015 Va. LEXIS 3 (2015).

    Opinion of the expert’s driver that the soft top’s latching system was defectively designed was inadmissible where the opinion was premised on the unfounded assumptions that the latches would not have disconnected had they been designed differently and that the front end of the roof structure would not have collapsed if the latches had remained connected. Holiday Motor Corp. v. Walters, 292 Va. 461 , 790 S.E.2d 447, 2016 Va. LEXIS 111 (2016).

    Trial court did not abuse its discretion in finding that the business valuation report of a husband’s expert was inadmissible as an admission of the husband because the expert witness was not identified as a trial witness for the husband, which suggested that the expert’s opinions were not that of the husband; an expert witness is expected to testify to his or her own opinion concerning the issues presented and not the opinion of the party. Pence v. Pence, 2016 Va. App. LEXIS 275 (Va. Ct. App. Oct. 18, 2016).

    Application of the statute would not permit an assistant chief medical examiner’s excluded expert testimony because the testimony was not “otherwise admissible”; the circuit court excluded the medical examiner’s testimony that a truck driver was driving and had ingested sleep aids prior to the accident for lack of a proper foundation and concluded that the proffered testimony would invade the province of the jury to draw its own conclusions from the same evidence the doctor considered. Lucas v. Riverhill Poultry, Inc., 300 Va. 78 , 860 S.E.2d 361, 2021 Va. LEXIS 74 (2021).

    Husband’s expert’s testimony was properly excluded because he was not offered as an expert concerning a fact of the case, but was expected to testify concerning his interpretation of the law, and this type of testimony was prohibited. Maly v. Maly, 2022 Va. App. LEXIS 28 (Va. Ct. App. Feb. 1, 2022).

    Proof of similarity of conditions existing at time of tests and facts. —

    The trial court should refuse to admit expert testimony unless there is proof of a similarity of conditions existing at the time of the expert’s tests and at the time relevant to the facts at issue. Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161 , 458 S.E.2d 462, 1995 Va. LEXIS 72 (1995).

    Expert testimony should not be admitted unless the trial court is satisfied that the expert has considered all the variables bearing on the inferences to be drawn from the facts observed. Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161 , 458 S.E.2d 462, 1995 Va. LEXIS 72 (1995).

    An expert may give opinions either based upon his own knowledge of facts disclosed in his testimony or he may give an opinion based upon facts in evidence assumed in a hypothetical question. Davison v. Commonwealth, 18 Va. App. 496, 445 S.E.2d 683, 10 Va. Law Rep. 1579, 1994 Va. App. LEXIS 389 (1994).

    Impeachment of one expert witness by another. —

    Nothing in subsection B of this section barred wife’s introduction of expert testimony designed to impeach valuation testimony of husband’s expert. Thompson v. Thompson, No. 1779-99-2 (Ct. of Appeals Feb. 8, 2000).

    Expert’s opinion precluded by “side switching” doctrine. —

    In an heir’s ejectment suit against a claimant to disputed land, the heir’s expert witness was properly disqualified under the “side switching” doctrine, as: (1) he proffered an expert opinion under § 8.01-401.3 ; (2) he had previously been hired by the claimant in contemplation of litigation; and (3) he had conferred with the claimant and the claimant’s attorney about the expert’s opinions as they related to the claimant’s ability to show ownership of the disputed parcel. Kitt v. Crosby, 277 Va. 396 , 672 S.E.2d 851, 2009 Va. LEXIS 39 (2009).

    Expert’s testimony failed to meet fundamental requirements, where there was no showing that crash tests relied upon were conducted under conditions similar to those existing at the accident scene. More importantly, the expert never examined the vehicles involved in the collision; rather, he relied solely upon the photographs of the vehicles to determine the permanent crash damage thereto. Tittsworth v. Robinson, 252 Va. 151 , 475 S.E.2d 261, 1996 Va. LEXIS 78 (1996).

    It was error to prohibit expert accountant from expressing his opinion regarding the cause of plaintiff’s losses, where he had analyzed plaintiff’s financial statements and had considered the records of other dealerships in the area and the industry in general, since he had corrected laid a proper foundation for the formation of his opinion. R.K. Chevrolet, Inc. v. Hayden, 253 Va. 50 , 480 S.E.2d 477, 1997 Va. LEXIS 5 (1997).

    Expert testimony in automobile accident case about average driver reaction times lacked the required foundation where there was no evidence that the defendant driver’s physical and mental characteristics relevant to his perception and reaction times placed him within the average range of persons tested for reaction times. Keesee v. Donigan, 259 Va. 157 , 524 S.E.2d 645, 2000 Va. LEXIS 4 (2000).

    In a tort action by plaintiff buyer against defendant individual, the trial court did not err in excluding an expert’s testimony regarding the effect of the individual’s alcohol consumption on the individual’s behavior and about the amount of alcohol that the individual must have consumed to achieve the particular breath alcohol content that was reflected in a certain preliminary breath test that was performed by the police after the individual was in an altercation with the buyer, as there was an inadequate factual foundation for such evidence given that the testimony was premised on the breath test machine being regularly calibrated so as to be accurate, but there was no evidence that it was regularly calibrated. Santen v. Tuthill, 265 Va. 492 , 578 S.E.2d 788, 2003 Va. LEXIS 48 (2003).

    Licensed auctioneer should not have been allowed to testify that real estate auctioned a second time generally sold at a lower price, without being required to consider whether the facts in the case at issue would have led to a different conclusion, as this testimony lacked an adequate foundation. Forbes v. Rapp, 269 Va. 374 , 611 S.E.2d 592, 2005 Va. LEXIS 47 (2005).

    Physician’s opinion not speculative. —

    Opinion of a treating physician who examined a diner less than two days after the onset of her illness, which opinion was that the cause of the diner’s illness was food poisoning, was based sufficiently on facts known to him and was not speculative where he analyzed the factors discussed in his testimony, reviewed the emergency room report prepared the previous evening, and considered testing that excluded other causes of the illness. Bussey v. E.S.C. Rests. Inc., 270 Va. 531 , 620 S.E.2d 764, 2005 Va. LEXIS 91 (2005).

    Firearms expert’s tesimony admissible. —

    Where a firearms expert’s testimony was within her area of expertise, was not within the range of the jury’s common experience, was relevant, and assisted the trier of fact in understanding the evidence, the trial court did not abuse its discretion in admitting this expert testimony under § 8.01-401.1 made applicable to criminal cases by § 19.2-267 . McCormick v. Commonwealth, 2003 Va. App. LEXIS 311 (Va. Ct. App. May 20, 2003).

    Testimony concerning workplace safety admissible. —

    While common knowledge alone may be sufficient to decide whether a task is physically easy or difficult to perform, determining whether the task itself is safe is not solely a function of logic. Whether easy or difficult, a task’s safety for the purpose of imposing liability on an employer is determined by its effect on the body and whether there is a need for alternative means of performing the task. Thus, the opinions of an expert in ergonomics analysis and vocational assessment were admissible because those opinions, informed by his acknowledged expertise in the area, could assist the jury in determining the fact in issue, which was whether the employer provided a safe workplace. Norfolk S. Ry. v. Bowles, 261 Va. 21 , 539 S.E.2d 727, 2001 Va. LEXIS 8 (2001).

    Testimony of social worker at termination hearing. —

    Trial court did not err in admitting into evidence at a termination hearing a social worker’s testimony that adoption was in the best interests of the child. Seibert v. Alexandria Div. of Soc. Servs., 2006 Va. App. LEXIS 521 (Va. Ct. App. Nov. 21, 2006).

    In a termination of parental rights action, the admission of testimony by a case worker for the Department of Human Services that adoption was in the best interest of the child did not violate § 8.01-401.3 .Bailey v. City of Alexandria Dep't of Human Servs., 2007 Va. App. LEXIS 244 (Va. Ct. App. June 19, 2007).

    Testimony of nurse as expert in sexual assault forensic examinations. —

    When defendant was convicted of rape by force or threat, it was no error to admit the expert testimony of a nurse who had not been certified as a Sexual Assault Nurse Examiner because (1) it was undisputed that the subject matter was beyond the knowledge of ordinary persons, (2) it was also undisputed that the nurse had specialized knowledge in the area of sexual assault forensic examinations, and (3) the general assembly had not adopted a statute regarding the qualifications of nurses to testify as experts about forensic examinations in sexual assault cases, and the governing evidentiary rule contained no such requirement. Wakeman v. Commonwealth, 69 Va. App. 528, 820 S.E.2d 879, 2018 Va. App. LEXIS 326 (2018), aff'd, 298 Va. 412 , 838 S.E.2d 732, 2020 Va. LEXIS 21 (2020).

    Matters properly considered by jury. —

    Although appellant argued that in various respects expert’s conclusions were open to challenge, any such weaknesses in his testimony were not grounds for its exclusion, but were matters properly to be considered by the jury in determining the weight to be given the evidence. Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161 , 458 S.E.2d 462, 1995 Va. LEXIS 72 (1995).

    Claim waived. —

    Husband’s claim that lay opinion testimony on the ultimate issue was improperly admitted was waived under Va. Sup. Ct. R. 5A:20(e) as it was not supported by authority, even though a statute (subsection B of § 8.01-401.3 ) governed the issue. Harris v. Harris, 2012 Va. App. LEXIS 361 (Va. Ct. App. Nov. 13, 2012).

    Lay opinion testimony admissible. —

    Detective was not required to be qualified as an expert in order to testify about the nature of the weapon he discovered because his opinion was a valid lay opinion. Because the detective’s opinion was reasonably based upon his training, personal experience, and observations, the circuit court did not err in admitting his testimony as a lay opinion. Murray v. Commonwealth, 71 Va. App. 449, 837 S.E.2d 85, 2020 Va. App. LEXIS 13 (2020).

    Lay witness opinion testimony inadmissible. —

    In a wrongful death case arising from an airplane accident, it was error to admit lay witness opinion testimony because (1) the testimony was unnecessary to explain the witness’s opinion to a jury, and (2) the testimony impermissibly assessed a decedent’s culpability. Harman v. Honeywell Int'l, Inc., 288 Va. 84 , 758 S.E.2d 515, 2014 Va. LEXIS 97 (2014).

    CIRCUIT COURT OPINIONS

    Expert on loss of earning capacity. —

    Defendants’ motions in limine to exclude expert testimony failed, as the testimony offered from the expert in the trucking industry fell into the category of admissible “specialized” or “technical” principles that an ordinary lay person might not know and the expert on loss of earning capacity had prior earnings to use as basis for projecting plaintiff’s future loss of earning capacity. Zoll v. Werner Enters., 74 Va. Cir. 172, 2007 Va. Cir. LEXIS 281 (Norfolk Sept. 20, 2007).

    Physician’s opinion not speculative. Where a doctor’s opinions were developed during the course of treatment and his opinions appeared to be based on his observations as a treating physician rather than solely on assumptions that had no basis in fact, it was admissible under § 8.01-401.3 .Riggins v. Andrews, 79 Va. Cir. 340, 2009 Va. Cir. LEXIS 91 (Virginia Beach Sept. 29, 2009).

    Insufficient factual basis. —

    One witness was not a licensed real estate appraiser and had no training as to the effects or risks associated with electricity or electric power lines, he did not conduct any studies related to this litigation, and he was unable to recall any studies that supported his opinion regarding marketability, and while his opinion was based on his experience as a real estate broker, that opinion lacked a sufficient factual basis to qualify as expert testimony and had to be excluded. Webel v. Vepco, 89 Va. Cir. 352, 2014 Va. Cir. LEXIS 66 (Hanover County Dec. 5, 2014).

    Witness had no expertise, training, or licensing in the field of electricity or electric power lines, he did not conduct any market studies for this case, and none of the individuals he interviewed produced any written studies or documentation to support their conclusions, and thus as his opinion was not supported by a sufficient factual basis, it had to be excluded from trial. Webel v. Vepco, 89 Va. Cir. 352, 2014 Va. Cir. LEXIS 66 (Hanover County Dec. 5, 2014).

    Testimony admissible. —

    Even if a jury could have arrived at the same conclusions as an accident reconstruction expert witness by the use of mathematical equations, the assistance of a more experienced witness to help the jury understand the evidence or determine a fact in dispute made the expert’s testimony generally admissible under subsection A of this section. Rhodes v. Lance, Inc., 55 Va. Cir. 253, 2001 Va. Cir. LEXIS 79 (Suffolk May 21, 2001).

    Where a doctor was duly licensed in Virginia and other states for thirty-five years, his lack of current medical license did not automatically disqualify him from being an expert witness. Riggins v. Andrews, 79 Va. Cir. 340, 2009 Va. Cir. LEXIS 91 (Virginia Beach Sept. 29, 2009).

    Real estate appraiser’s expert opinion was supported by an adequate factual basis, as he was a licensed certified general real estate appraiser, his opinion, that the damage to respondents’ residue by the taking was a certain amount, was supported, and petitioner’s objections went to the weight of the appraiser’s opinion, not towards its admissibility, and thus petitioner’s motion in limine seeking to exclude this testimony was denied. Comm'r of Highways v. Carey, 90 Va. Cir. 58, 2015 Va. Cir. LEXIS 17 (Hanover County Feb. 20, 2015).

    In this negligence case, the court granted defendant’s motion to exclude expert testimony; the experts’ opinion that the breaches of the standard of care were a proximate cause of plaintiff’s fall and injuries invaded the province of the jury was was highly prejudicial. Stanley v. 12th St. Commer. Block, LLC, 95 Va. Cir. 316, 2017 Va. Cir. LEXIS 47 (Richmond Mar. 23, 2017).

    In this negligence case, the court granted defendant’s motion to exclude expert testimony; the experts’ opinions that defendant should have put up warning signs, marked the step with a contrasting color or other visual clues, and performed regular inspections all invaded the province of the jury. Stanley v. 12th St. Commer. Block, LLC, 95 Va. Cir. 316, 2017 Va. Cir. LEXIS 47 (Richmond Mar. 23, 2017).

    In this negligence case, the court granted defendant’s motion to exclude expert testimony; the experts’ opinions on whether or not the step in question violated national standards was irrelevant, misleading, and unduly prejudicial because these national standards were not the law in Virginia and thus were not relevant to a determination of negligence. Stanley v. 12th St. Commer. Block, LLC, 95 Va. Cir. 316, 2017 Va. Cir. LEXIS 47 (Richmond Mar. 23, 2017).

    Close-out letter prepared by a dissolved joint venture’s attorney did not contain in inadmissible legal opinion where it stated only that another entity could have disputed the validity of a contract, it did not state or otherwise opine that the contract is invalid, and it only made the parties aware that the enforceability may have beev uncertain and asserted no legal conclusion regarding the actual validity of the contract. ATK Space Sys. v. US Space LLC, 99 Va. Cir. 46, 2018 Va. Cir. LEXIS 315 (Loudoun County Jan. 29, 2018).

    Motion in limine to exclude a damages expert’s opinions on the value of a defunct joint venture was denied where the opinions were based on the actual market circumstances that existed at the time of dissolution. ATK Space Sys. v. US Space LLC, 99 Va. Cir. 46, 2018 Va. Cir. LEXIS 315 (Loudoun County Jan. 29, 2018).

    Commonwealth’s motion to qualify a licensed Counselor and board-certified art therapist as an expert in victim responses to domestic violence and sexual assault was granted because she had a Bachelor of Fine Arts and a Master of Science in Art Therapy and Counseling and she had conducted over 1,000 interviews assessing past domestic violence and sexual abuse exposure, the existence of any current abuse, family support systems, and any psychological outcomes from any abuse. Evidence of the victim’s emotional or psychological injury was relevant as circumstantial evidence of the occurrence of a traumatizing event and the expert’s testimony was beyond a lay person’s common knowledge. Commonwealth v. Taylor, 2019 Va. Cir. LEXIS 435 (Newport News Aug. 21, 2019).

    Exclusion of expert testimony. —

    In this negligence case, the court granted defendant’s motion to exclude expert testimony; the experts’ opinions that the step was a tripping hazard and that plaintiff would have had difficulty in perceiving it were clearly within a laypersons’ common knowledge and within the common experience of the average person. Stanley v. 12th St. Commer. Block, LLC, 95 Va. Cir. 316, 2017 Va. Cir. LEXIS 47 (Richmond Mar. 23, 2017).

    Testimony admissible in part. —

    Although a biomedical engineer could testify to the nature of the forces involved, the biomedical engineer could not opine that a meniscal tear to an injured party’s knee was not caused by an accident; a mechanical engineer could not testify at all because his tests did not reproduce conditions that were substantially similar to that of normal use of a vehicle’s seat and the mechanical engineer did not consider all variables. Kline v. GMC, 64 Va. Cir. 26, 2003 Va. Cir. LEXIS 319 (Richmond Dec. 31, 2003).

    Neuropsychologist could testify as to the injured party’s mental ailments, conditions, and diseases, as wells as the relationship between his conduct and such ailments, conditions, and diseases, assuming that the driver showed the relevance of such opinions. However, the expert could not render an opinion that the injured party did or did not sustain a mild traumatic brain injury since such an opinion concerned the causation of a physical human injury, which could only be rendered by a medical doctor. McCarthy v. Atwood, 67 Va. Cir. 237, 2005 Va. Cir. LEXIS 11 (Portsmouth Apr. 18, 2005).

    Due to the differences in the victim’s and a witness’s accounts of their “date rapes,” the witness could not testify at trial, and the victim’s motion to reconsider was denied; nevertheless, although evidence of drugging was excluded, the non-physician experts could testify and the expert designations could be amended. Hylton v. Hamilton, 68 Va. Cir. 305, 2005 Va. Cir. LEXIS 197 (Charlottesville Aug. 3, 2005).

    Actual knowledge of defects. —

    Question of defendant’s actual knowledge of defects in a gas water heater was the subject of factual evidence to be determined by the fact-finder and was not a proper subject of expert opinion. Dorman v. Atmos Energy Corp., 88 Va. Cir. 191, 2014 Va. Cir. LEXIS 21 (Richmond Apr. 21, 2014).

    § 8.01-402. Members of Department of Motor Vehicles’ Crash Investigation Team not to be required to give evidence in certain cases.

    No member of the Department of Motor Vehicles’ Crash Investigation Team shall be required to give evidence concerning any statements made to him in the course of such investigation before any court or grand jury in any case involving a motor vehicle crash on the highways of the Commonwealth in which any member or members of such Crash Investigation Team made or took part in any investigation pursuant to a directive from the Commissioner of the Department of Motor Vehicles for purposes of research and evaluation of the Commonwealth’s highway safety program.

    History. Code 1950, § 8-296.1; 1974, c. 390; 1977, c. 617; 1992, c. 108.

    Cross references.

    As to applicability of §§ 8.01-396.1 , 8.01-402 , 8.01-405 , and 8.01-407 through 8.01-410 to criminal cases, see § 19.2-267 .

    § 8.01-403. Witness proving adverse; contradiction; prior inconsistent statement (Subsection (c) of Supreme Court Rule 2:607 and subdivision (a)(i) of Supreme Court Rule 2:613 derived from this section).

    A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall in the opinion of the court prove adverse, by leave of the court, prove that he has made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. In every such case the court, if requested by either party, shall instruct the jury not to consider the evidence of such inconsistent statements, except for the purpose of contradicting the witness.

    History. Code 1950, § 8-292; 1977, c. 617.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    Law Review.

    For comment on a comparison of Uniform Rules of Evidence 63 (1) and (4) and Virginia law, see 18 Wash. & Lee L. Rev. 358 (1961).

    For survey of Virginia law on evidence for the year 1977-1978, see 64 Va. L. Rev. 1451 (1978).

    As to prior inconsistent statements of a party’s own witness, see 22 U. Rich. L. Rev. 621 (1988).

    Michie’s Jurisprudence.

    For related discussion, see 20 M.J. Witnesses, §§ 38, 54, 56.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    This section applies to criminal as well as civil cases. Brown v. Commonwealth, 6 Va. App. 82, 366 S.E.2d 716, 4 Va. Law Rep. 2297, 1988 Va. App. LEXIS 19 (1988).

    “Adverse” construed. —

    This section refers only to a witness who “proves adverse,” namely, “a witness whom the party expected to testify favorably has suddenly turned sour and testified unfavorably.” The determination whether a witness has proved to be “adverse” rests within the sound discretion of the trial court. Sluss v. Commonwealth, No. 1252-93-3 (Ct. of Appeals Jan. 10, 1995).

    Testimony of witness did not “prove adverse” within meaning of this section, but only failed to meet defendant’s expectations, and defense counsel was therefore not entitled to impeach witness under this section. Fetty v. Commonwealth, No. 0176-99-2 (Ct. of Appeals Feb. 1, 2000).

    A party’s own witness proves adverse if the witness surprises the party by changing stories or becoming hostile on the stand. Wells v. Commonwealth, 32 Va. App. 775, 531 S.E.2d 16, 2000 Va. App. LEXIS 498 (2000).

    Error in finding witness hostile. —

    Trial court abused its discretion in finding a witness to be hostile and adverse solely as a consequence of his desire to be evasive, but the error was harmless; the remaining evidence against defendant was substantial, and declaring the witness hostile or adverse did not affect the verdict or otherwise deprive defendant of a fair trial on the merits. Carter v. Commonwealth, 2016 Va. App. LEXIS 293 (Va. Ct. App. Nov. 1, 2016).

    Prior inconsistent statements are admitted solely to attack credibility of witness who has told different stories at different times. They are not evidence of the truth of the content of the statements, and the court must so instruct the jury. Hall v. Commonwealth, 233 Va. 369 , 355 S.E.2d 591, 3 Va. Law Rep. 2484, 1987 Va. LEXIS 202 (1987).

    Adverse party may be impeached by prior inconsistent statements. —

    Where driver hit victim in a car accident, and the trial court permitted driver to call victim to the stand as a part of his case in rebuttal, solely to impeach her credibility, trial court did not err in permitting such impeachment on rebuttal even though it could have been done earlier in the cross-examination of victim, § 8.01-401 A and this section do not preclude impeachment of an adverse party by prior inconsistent statements. Mastin v. Theirjung, 238 Va. 434 , 384 S.E.2d 86, 6 Va. Law Rep. 587, 1989 Va. LEXIS 140 (1989).

    Defendant’s convictions for statutory burglary, attempted robbery, unlawful wounding, and use of a firearm in the commission of a felony were proper because the trial court did not abuse its discretion by determining that the Commonwealth’s witness had proven adverse and allowing the Commonwealth to impeach her with her prior inconsistent statement. Although the Commonwealth knew that the witness was reluctant to testify based on the March 3, 2008, interview, it did not know that she was going to recant her previous statement and testify currently that the assailant was not defendant. Clatterbaugh v. Commonwealth, 2010 Va. App. LEXIS 289 (Va. Ct. App. July 27, 2010).

    Foundation must be laid. —

    The statute clearly requires that a foundation be laid by confronting the witness with the specific statements he allegedly made. Underwood v. Brown, 1 Va. App. 318, 338 S.E.2d 854, 1986 Va. App. LEXIS 201 (1986).

    Impeachment is not allowed if testimony simply fails to meet litigant’s expectations. Underwood v. Brown, 1 Va. App. 318, 338 S.E.2d 854, 1986 Va. App. LEXIS 201 (1986).

    If testimony is negative in character and of no probative value to the fact finder, there is no statutory basis for impeachment. Underwood v. Brown, 1 Va. App. 318, 338 S.E.2d 854, 1986 Va. App. LEXIS 201 (1986).

    Impeachment improper where testimony conformed with affidavit. —

    Where trial counsel testified at the plenary hearing on the habeas corpus petition in conformance with his affidavit, which was filed over five months prior to the hearing, the habeas court should not have allowed petitioner’s counsel at the hearing to impeach trial counsel’s testimony at the hearing with evidence of alleged prior inconsistent statements, since counsel at the hearing could not reasonably claim surprise. The fact that the trial counsel did not recall the alleged inconsistent statements made during an earlier telephone conversation carried no probative value. Underwood v. Brown, 1 Va. App. 318, 338 S.E.2d 854, 1986 Va. App. LEXIS 201 (1986).

    Impeachment not erroneously allowed where questions were for purpose of resolving inconsistency. —

    The court did not erroneously permit the Commonwealth to impeach one of its witnesses, the local medical examiner, whose testimony allegedly proved adverse to the Commonwealth, where the questions put to the local medical examiner were simply to resolve an apparent inconsistency in his testimony and introduce his best recollection. Williams v. Commonwealth, 234 Va. 168 , 360 S.E.2d 361, 4 Va. Law Rep. 570, 1987 Va. LEXIS 258 (1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 733, 98 L. Ed. 2d 681, 1988 U.S. LEXIS 90 (1988).

    Refusal to allow impeachment was harmless under non-constitutional standard. —

    Trial court’s error in denying defense counsel’s motion to impeach his own witness based on her prior inconsistent statement as to the shooter’s clothing was harmless under the non-constitutional standard as the jury resolved the issue of the shooter’s clothing by crediting the Commonwealth’s witnesses, who based their in-court identifications of defendant on face recognition, not clothing. Dupree v. Commonwealth, 2005 Va. App. LEXIS 535 (Dec. 28, 2005), rev’d, 272 Va. 496 , 635 S.E.2d 676 (2006), as to harmless error.

    Exclusion of impeachment testimony by defendant’s witness. —

    Circuit court erred under § 8.01-403 by refusing to allow defendant to question his own witness about a prior inconsistent statement regarding what the shooter was wearing, and the error was not harmless because the question of what the shooter was wearing was a crucial issue of fact as a result of the government’s witnesses’ inconsistent recollections on that subject, and because the jury might have been swayed by the witness’s impeachment testimony, it was impossible to conclude that substantial rights were not affected by its exclusion. Dupree v. Commonwealth, 272 Va. 496 , 635 S.E.2d 676, 2006 Va. LEXIS 92 (2006).

    Impeachment of Commonwealth’s own witness held improper. —

    Trial court should not have allowed the Commonwealth to impeach its own witness merely because witness’s testimony regarding her affair with defendant did not live up to the Commonwealth’s expectations. Smallwood v. Commonwealth, 36 Va. App. 483, 553 S.E.2d 140, 2001 Va. App. LEXIS 550 (2001).

    Impeachment compared to refreshing memory of witness. —

    Trial court did not allow the Commonwealth to impeach its own witness as prohibited by § 8.01-403 , but rather properly allowed the Commonwealth to refresh the memory of the witness after the witness stated that she was unable to recall certain statements she had made to police investigators, and defendant failed to include either the tape played to refresh the witness’s memory or the contents of the tape in the record on appeal as required by Sup. Ct. R. 5A:25. Brockenbrough v. Commonwealth, 2003 Va. App. LEXIS 243 (Va. Ct. App. Apr. 22, 2003).

    Refusal to allow impeachment held proper. —

    The trial court properly refused to allow the defendant to impeach a defense witness under this section, since the witness had been totally exonerated of the crimes by DNA testing and his testimony was not damaging or injurious to the defendant’s case, especially as the court allowed the defendant to thoroughly question the witness regarding his conflicting statements to the police. Painter v. Commonwealth, No. 1502-97-1 (Ct. of Appeals April 7, 1998).

    Where defendant failed to present the letters containing an alleged inconsistent statement made by a witness to the witness’s attention during her testimony, but instead attempted to introduce the same letters through the defendant’s own testimony, the trial court properly refused such as lacking the proper foundation for admission. Jones v. Commonwealth, 2003 Va. App. LEXIS 3 (Va. Ct. App. Jan. 7, 2003).

    Use of preliminary hearing transcript to impeach. —

    Where the Commonwealth’s attorney asked an evasive witness whether he remembered testifying at the preliminary hearing of the case and, receiving an affirmative reply, the prosecutor read from a transcript of the preliminary hearing and called his attention to several statements that were inconsistent with his testimony at trial, and the trial court told the jury in an oral instruction that the witness’ prior statements were not substantive evidence and could not be considered on the question of the defendant’s guilt or innocence but solely for the purpose of affecting his credibility, the procedure followed by the trial court was sanctioned by this section. Roberts v. Commonwealth, 230 Va. 264 , 337 S.E.2d 255, 1985 Va. LEXIS 278 (1985).

    Testimony must be injurious or damaging to the case for grounds of impeachment. —

    In order to impeach one’s own witness it is not sufficient merely that the witness gave a contradictory statement on a prior occasion, rather, the testimony offered must be injurious or damaging to the case of the party who called the witness. Ragland v. Commonwealth, 16 Va. App. 913, 434 S.E.2d 675, 10 Va. Law Rep. 143, 1993 Va. App. LEXIS 364 (1993).

    Testimony having no probative value not subject of impeachment. —

    Commonwealth’s witness’ testimony that he did not know either defendant or murder victim and did not see stabbing had no probative value, as it could not have assisted the trier of fact in determining defendant’s guilt or innocence, and thus was neither damaging nor injurious to the Commonwealth’s case. Therefore, this witness’s testimony was not subject to impeachment, and the trial court erred when it allowed police officer to testify that witness gave a statement to him that he saw defendant stab fellow inmate. Brown v. Commonwealth, 6 Va. App. 82, 366 S.E.2d 716, 4 Va. Law Rep. 2297, 1988 Va. App. LEXIS 19 (1988).

    If the testimony is of a negative character and has no probative value, there is no statutory basis for impeachment. Ragland v. Commonwealth, 16 Va. App. 913, 434 S.E.2d 675, 10 Va. Law Rep. 143, 1993 Va. App. LEXIS 364 (1993).

    Impeachment properly allowed. —

    In a prosecution for possession of marijuana with intent to distribute, the Commonwealth was properly allowed to impeach its witness where the record supported a finding that the witness surprised the Commonwealth when she testified inconsistently with her prior statement to a police officer and the inconsistent testimony was on issues relevant to the Commonwealth’s case, including questions about the defendant’s connection to the residence in which the drugs were found, how often he was there, whether he paid rent and whether the defendant and another individual used drugs or sold drugs from the house. Wells v. Commonwealth, 32 Va. App. 775, 531 S.E.2d 16, 2000 Va. App. LEXIS 498 (2000).

    Trial court could have reasonably concluded that the Commonwealth was surprised by the victim’s testimony given that her trial testimony, that defendant only fired a few shots into the air while sitting in the car, was markedly different from her preliminary hearing testimony that defendant exited the car, shot at the victim, and ordered another to confirm that the victim was dead, and nothing in the record suggested that the Commonwealth was aware of such a change. Everett v. Commonwealth, 2016 Va. App. LEXIS 127 (Va. Ct. App. Apr. 19, 2016).

    Impeachment improperly allowed. —

    Trial court erred in allowing the Commonwealth to impeach a witness with an allegedly prior inconsistent statement and that error was not harmless; the testimony of the witness did not contain any substantive statements that were inconsistent with the prior testimony of the witness, and the form of the Commonwealth’s questions exposed the jury to prejudicial and otherwise inadmissible statements made by the witness at a previous trial, and, thus, it did not appear from the record that the accused had a fair trial on the merits and that substantial justice had been reached. Goodson v. Commonwealth, 2006 Va. App. LEXIS 515 (Va. Ct. App. Nov. 14, 2006).

    II.Decisions Under Prior Law.

    Editor’s note.

    Section applies to criminal as well as civil cases. —

    This section allowing a party whose witness has unexpectedly proved adverse, with leave of the court, to prove his prior inconsistent statements, applies to criminal as well as civil cases. Its language is broad and general, and there is no suggestion on its face to limit its operation to civil cases. While it is true that the statute is found in the Code under the title “proceedings in civil cases,” yet, in the same chapter with that section, there are other sections applicable alike, by their terms, to criminal and civil cases, and the mere collocation of that section cannot be permitted to override every other consideration, and require the courts to confine it to civil cases, when it is a remedy for an evil as great in criminal cases as in civil, and the consequences of which may be even more serious. McCue v. Commonwealth, 103 Va. 870 , 49 S.E. 623 , 1905 Va. LEXIS 55 (1905).

    This section, as to proof of inconsistent statements where a witness in the opinion of the court proves adverse to the party introducing him, applies to criminal as well as civil cases. Tate v. Commonwealth, 155 Va. 1016 , 154 S.E. 508 , 1930 Va. LEXIS 189 (1930).

    Application within discretion of court. —

    The ruling of the trial court permitting the Commonwealth’s attorney to cross-examine three witnesses for the Commonwealth relative to alleged prior inconsistent statements, was held to be within his sound judicial discretion, and there was nothing to show that it had been abused. Trout v. Commonwealth, 167 Va. 511 , 188 S.E. 219 , 1936 Va. LEXIS 312 (1936).

    “Adverse interest” and “adverse testimony” distinguished. —

    It is to be noted that the words “adverse interest” are not used in this section, but the language is “in case the witness shall in the opinion of the court prove adverse.” Here “adverse” is also used as an adjective to describe the word “witness,” meaning his testimony. The distinction between “adverse interest” and “adverse testimony” has not always been observed in the cases construing this section and § 8.01-401 . Butler v. Parrocha, 186 Va. 426 , 43 S.E.2d 1, 1947 Va. LEXIS 168 (1947).

    Proof that witness is not adverse. —

    In the instant case the prosecution claimed that a witness introduced by it had turned adverse, which contention was supported by the trial court. There was no suggestion that the witness had ever made any inconsistent statements, and no effort was made to prove that he had ever done so. Nor did it appear from the record that the witness was adverse or had made inconsistent statements on former occasions. Some of his testimony supported the theory of the prosecution, and some of it the theory of the defense. It was held that the claim that the witness had proved adverse could not be maintained. Tate v. Commonwealth, 155 Va. 1016 , 154 S.E. 508 , 1930 Va. LEXIS 189 (1930).

    Testimony to be adverse must be injurious or damaging. —

    One is not permitted to impeach his own witness merely because the latter does not come up to his expectation. It is only when the testimony of the witness is injurious or damaging to the case of the party introducing him that the witness can be said to be adverse so as to justify his impeachment. If the testimony is of a negative character and has no probative value, there is no need to discredit the witness. VEPCO v. Hall, 184 Va. 102 , 34 S.E.2d 382, 1945 Va. LEXIS 134 (1945).

    Limitations on right of contradiction of own witness. —

    The right of contradiction of one’s own witness under this section is subject to these limitations: (1) The trial court, and not counsel, is the judge as to whether a witness has proven adverse or hostile to the party introducing him; (2) the purpose of such contradiction is merely to impeach the credit of the witness and show that he is unworthy of belief. His prior inconsistent statements are not substantive evidence of the matters therein contained. VEPCO v. Hall, 184 Va. 102 , 34 S.E.2d 382, 1945 Va. LEXIS 134 (1945).

    Adverse witness may not be impeached by evidence of bad character. —

    A reading of the Code nowhere indicates that it was the intention of the legislature to permit a litigant to call an adverse witness for the purpose of helping his case and later impeach his credibility by evidence of bad character. Such a rule would permit one to call a witness known to be unworthy of belief for the purpose of proving his case. Smith v. Lohr, 204 Va. 331 , 130 S.E.2d 433, 1963 Va. LEXIS 153 (1963).

    Witness’ character cannot be discredited by opinions of prosecuting attorney. —

    As a witness cannot under this section be impeached by general evidence of his bad character; a fortiori he should not be discredited before the jury by opinions of the prosecuting attorney with respect to his character. Tate v. Commonwealth, 155 Va. 1016 , 154 S.E. 508 , 1930 Va. LEXIS 189 (1930); Green v. Commonwealth, 122 Va. 862 , 94 S.E. 940 , 1918 Va. LEXIS 142 (1918).

    Place not material in laying foundation for contradictory statement. —

    A party may contradict his own witness who appears to be adverse by other testimony, provided foundation is laid for such contradictory evidence by first calling to the attention of the witness the circumstances of the supposed contradictory statement sufficiently to designate the particular occasion. This should usually embrace the time, place and person to whom the statement was made, but the omission of place will not be material where it is evident the witness fully understood the occasion referred to. Gordon v. Funkhouser, 100 Va. 675 , 42 S.E. 677 , 1902 Va. LEXIS 75 (1902).

    Details of prior inconsistent statements may be given. —

    In proving the prior inconsistent statements of a witness who has unexpectedly proven adverse to the party calling, the party is not restricted by the provisions of this section to proof of the fact that such statements were made, but may give in evidence the details of such statements. McCue v. Commonwealth, 103 Va. 870 , 49 S.E. 623 , 1905 Va. LEXIS 55 (1905).

    Effect of statements made by adverse witnesses. —

    A party is not bound by all the statements of a witness called by him, if adverse, even though no other witnesses are called against him. The witness may, on a material point, be contradicted by the physical facts proved by any other competent evidence introduced in the case. Washington & Old Dominion Ry. v. Jackson's Adm'r, 117 Va. 636 , 85 S.E. 496 , 1915 Va. LEXIS 78 (1915).

    Inconsistent statements only for purpose of contradicting witness. —

    An instruction that the jury could consider alleged inconsistent statements of adverse witness only for the purpose of contradicting him was held in accord with this section. Yellow Cab Co. v. Eden, 178 Va. 325 , 16 S.E.2d 625, 1941 Va. LEXIS 167 (1941).

    And jury should be so instructed. —

    Where a State witness turns out to be adverse, and his evidence takes the prosecution by surprise, it is proper under this section to impeach, by proof of his prior inconsistent statements, the witness’ credibility, and to so instruct the jury. Hardy v. Commonwealth, 110 Va. 910 , 67 S.E. 522 , 1910 Va. LEXIS 139 (1910).

    Review. —

    The trial court sees and hears a witness on the stand and observes his demeanor, and hence is in a much better position to determine whether he is in fact adverse or hostile, within the meaning of this section than is an appellate court which must rely on the printed record. VEPCO v. Hall, 184 Va. 102 , 34 S.E.2d 382, 1945 Va. LEXIS 134 (1945).

    CIRCUIT COURT OPINIONS

    Adverse party may be impeached by prior inconsistent statements. —

    Commissioner could not use a witness’s prior inconsistent statements as evidence to determine the location of an easement, but could use those statements to determine his credibility. The determination of the witness’s credibility was the Commissioner’s responsibility, not the reviewing court’s responsibility, given great deference by the court, and not plainly wrong. Theroux v. Blethen, 67 Va. Cir. 218, 2005 Va. Cir. LEXIS 169 (Loudoun County Apr. 5, 2005).

    § 8.01-404. Contradiction by prior inconsistent writing (Subdivision (b)(i) of Supreme Court Rule 2:613 derived in part from this section and subdivision (b)(ii) of Supreme Court Rule 2:613 derived from this section).

    A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, relative to the subject matter of the civil action, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to the particular occasion on which the writing is supposed to have been made, and he may be asked if he did not make a writing of the purport of the one to be offered to contradict him, and if he denies making it, or does not admit its execution, it shall then be shown to him, and if he admits its genuineness, he shall be allowed to make his own explanation of it; but it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make such use of it for the purpose of the trial as it may think best. This section is subject to the qualification, that in an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness and no extrajudicial recording made at any time other than simultaneously with the wrongful act or negligence at issue of the voice of such witness, or reproduction or transcript thereof, as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict him as a witness in the case. Nothing in this section shall be construed to prohibit the use of any such ex parte affidavit or statement in an action on an insurance policy based upon a judgment recovered in a personal injury or death by wrongful act case.

    History. Code 1950, § 8-293; 1958, c. 380; 1960, c. 114; 1964, c. 356; 1977, c. 617; 2007, c. 598.

    REVISERS’ NOTE

    The sentence in former § 8-293 applying its provisions to criminal cases has been deleted. Also, the phrase “civil action” has been inserted in the first sentence to provide that § 8.01-404 applies to all civil proceedings.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    The 2007 amendments.

    The 2007 amendment by c. 598, inserted “made at any time other than simultaneously with the wrongful act or negligence at issue” in the second sentence.

    Law Review.

    For survey of Virginia law on evidence for the year 1969-1970, see 56 Va. L. Rev. 1325 (1970).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Affidavits, § 11.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Exclusionary sentence did not apply to document. —

    Where investigator for bus company wrote out a statement from plaintiff who was in a car accident, and where investigator testified as to the writing, exclusionary sentence (second sentence)of this section did not prohibit bus company’s use of bus company investigator’s document to contradict plaintiff, whether in her cross-examination or by its use as part of the bus company’s case in chief, as the written document was neither signed by the plaintiff nor in the handwriting of the plaintiff. However, the document should not have been made an exhibit. Scott v. Greater Richmond Transit Co., 241 Va. 300 , 402 S.E.2d 214, 7 Va. Law Rep. 1723, 1991 Va. LEXIS 30 (1991).

    Prior statements admissible as party admissions in plaintiff’s case-in-chief. —

    This section does not preclude the introduction of a witness’ prior written statement as a party admission in a plaintiff’s case-in-chief. A trial court improperly extended the reach of this section and, by doing so, prevented an administrator in a wrongful death suit from admitting the statements of various police officers’ as party admissions in the administrator’s case-in-chief to prove the events surrounding the shooting death of an arrestee. Gray v. Rhoads, 268 Va. 81 , 597 S.E.2d 93, 2004 Va. LEXIS 100 (2004).

    Use of prior inconsistent statement. —

    Attorney for a motorist in an auto accident case could have properly cross-examined the accident victim concerning the content of the transcript of a telephone conversation between the victim and the motorist’s insurer because § 8.01-404 only prohibited the use of a written statement itself to directly impeach a witness. The fact that the conversation was reduced to writing did not prevent the motorist’s attorney from attempting to prove the inconsistencies in the victim’s claims by questioning the victim about the oral statements that the victim made. Ruhlin v. Samaan, 282 Va. 371 , 718 S.E.2d 447, 2011 Va. LEXIS 225 (2011).

    Use of a transcript made from a prior recorded telephone conversation between an accident victim and the insurance company for a motorist to refresh the victim’s recollection did not implicate the prohibitions in § 8.01-404 and the circuit court did not err by permitting such use. Ruhlin v. Samaan, 282 Va. 371 , 718 S.E.2d 447, 2011 Va. LEXIS 225 (2011).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Writings not per se admissible under section. —

    This section does not per se render admissible in evidence a writing which independently of the statute would be inadmissible. The use herein referred to means legitimate use. Ellison v. Commonwealth, 130 Va. 748 , 107 S.E. 697 , 1921 Va. LEXIS 190 (1921).

    This section is confined to the contradiction of a witness by the introduction of a prior inconsistent statement in writing. Harris v. Harrington, 180 Va. 210 , 22 S.E.2d 13, 1942 Va. LEXIS 160 (1942); Alspaugh v. Diggs, 195 Va. 1 , 77 S.E.2d 362, 1953 Va. LEXIS 171 (1953).

    Motion to suppress deposition for violation of this section made too late. —

    See Ketchmark v. Lindauer, 198 Va. 42 , 92 S.E.2d 286, 1956 Va. LEXIS 173 (1956).

    Contradictory evidence must be introduced by leave of court and after the witness has been fully put on guard with respect to it. Green v. Commonwealth, 122 Va. 862 , 94 S.E. 940 , 1918 Va. LEXIS 142 (1918).

    And proper foundation must be laid. —

    This section was intended to permit the introduction of a prior inconsistent statement only after a proper foundation is laid. Saunders v. Hall, 176 Va. 526 , 11 S.E.2d 592, 1940 Va. LEXIS 272 (1940).

    Error to force defendant to produce statement when foundation not laid. —

    In the instant case while a witness was being examined in chief by counsel for the plaintiff, he stated that “they claim I heard the whistle blow and the gong was sounded, but I did not hear either one, I didn’t see the train even.” To this counsel for defendant objected. Thereupon counsel for plaintiff called on defendant’s counsel “to produce any statement they have now,” and the court compelled counsel for defendant, over their objection, to produce a statement in their possession which the witness had previously made to an agent of the company as to the blowing of the whistle and sounding of the gong. The statement of the witness had in no way been mentioned or referred to by counsel for the defendant. It had not been produced in court and made use of in the examination of the witness. This was held error. Norfolk & W. Ry. v. Wilkes' Adm'r, 137 Va. 302 , 119 S.E. 122 , 1923 Va. LEXIS 157 (1923).

    Cross-examination as to the contents of paper. —

    After a witness has been put on his guard and questioned as to the contents of a paper which he said he had rewritten, he may, on cross-examination, be further asked if he had not on a former occasion (fixing time and place) made statements contradictory of his testimony as to the contents of the paper, for the purpose of testing the witness as to his recollection and credibility, and of contradicting him, if he denies it. Lester v. Simpkins, 117 Va. 55 , 83 S.E. 1062 , 1915 Va. LEXIS 10 (1915).

    No necessity of introducing writing when admitted by witness. —

    Where in a prosecution for larceny, witness’s attention was called to statements made by him in a prior affidavit relating to the same matter which were in conflict with his present testimony, and he was asked to explain the conflict, the defendant was not obliged to show the affidavit to the witness at this stage of his examination, and, as witness admitted making the affidavit, was under no obligation to show it to him or offer it in evidence. Ellison v. Commonwealth, 130 Va. 748 , 107 S.E. 697 , 1921 Va. LEXIS 190 (1921).

    First part of section applies only to cross-examination of a witness. —

    The first part of this section, as to the contradiction of a witness by a prior inconsistent writing, applies only to the cross-examination of a witness, “as to previous statements made by him in writing or reduced into writing,” and not to an examination in chief of one’s own witness. Norfolk & W. Ry. v. Wilkes' Adm'r, 137 Va. 302 , 119 S.E. 122 , 1923 Va. LEXIS 157 (1923).

    “Witness” as including real parties. —

    It was held unnecessary to decide whether the words, “a witness,” as used in this section include real parties. VEPCO v. Mitchell, 159 Va. 855 , 164 S.E. 800 , 167 S.E. 424 , 1932 Va. LEXIS 225 (1932), aff'd, 159 Va. 855 , 167 S.E. 424 (1933).

    B.Personal Injury and Wrongful Death Actions.

    Effect of second sentence of section. —

    The trial judge was right in refusing to allow a witness, in an action for personal injuries, to be questioned as to contradictory statements made by him on the day of the accident when it became manifest that it was the intention of the defendant to contradict the witness by a prior inconsistent written statement. Any other ruling would have annulled this section. Washington & Old Dominion Ry. v. Weakley, 140 Va. 796 , 125 S.E. 672 , 1924 Va. LEXIS 216 (1924).

    Under the first sentence of this section, a prior inconsistent statement of a witness is admissible to impeach him if the terms of the statute are met. However, under the second sentence of this section, a prior written statement of a witness may not be used to contradict the witness where the action is one to recover for a personal injury or to recover for death by wrongful act or neglect unless it be in the form of a deposition taken after due notice. Saunders v. Hall, 176 Va. 526 , 11 S.E.2d 592, 1940 Va. LEXIS 272 (1940).

    The introduction in evidence of a prior ex parte written statement signed by an interested party is within the purview of the second sentence of this section and cannot be used for the purpose of contradicting him. Alspaugh v. Diggs, 195 Va. 1 , 77 S.E.2d 362, 1953 Va. LEXIS 171 (1953).

    The second sentence was intended to correct abuses of taking statements shortly after accident. —

    The purpose of the second sentence of this section was to correct the unfair practice of contradicting a witness by a written statement taken shortly after an accident, resulting in death or personal injury, when such witness may not have fully recovered from the shock and may not be in full possession of his faculties. Harris v. Harrington, 180 Va. 210 , 22 S.E.2d 13, 1942 Va. LEXIS 160 (1942); Robertson v. Commonwealth, 181 Va. 520 , 25 S.E.2d 352, 1943 Va. LEXIS 201 (1943) (see Liberty Mut. Ins. Co. v. Venable, 194 Va. 357 , 73 S.E.2d 366 (1952); Alspaugh v. Diggs, 195 Va. 1 , 77 S.E.2d 362 (1953)).

    But it does not prohibit oral proof of prior inconsistent statements. —

    To the extent that the second sentence of this section was intended to correct abuses, it is a modification of the rule as to best evidence, but it was never intended to prohibit the proof of prior inconsistent statements by oral testimony. Harris v. Harrington, 180 Va. 210 , 22 S.E.2d 13, 1942 Va. LEXIS 160 (1942) (see Alspaugh v. Diggs, 195 Va. 1 , 77 S.E.2d 362 (1953)).

    It was the intention of the 1919 Code Revisors, in adding the second sentence to this section, to permit the jury to determine the truth of the matter under investigation from an oral examination of the witnesses on the stand, uninfluenced by an ex parte written statement prepared by an interested party for the purpose of introducing it in evidence. Harris v. Harrington, 180 Va. 210 , 22 S.E.2d 13, 1942 Va. LEXIS 160 (1942).

    Impeachment of a witness by the testimony of a former attorney for defendants who had interviewed this witness a few days after the accident, was not inadmissible under the second sentence of this section, notwithstanding that the substance of the interview had been reduced to writing, where counsel who attempted to impeach the witness made no reference to a written statement but confined his questions to oral statements made by the witness, and signified his intention to contradict the witness by the oral testimony of the attorney who had interviewed her. Harris v. Harrington, 180 Va. 210 , 22 S.E.2d 13, 1942 Va. LEXIS 160 (1942).

    This section, before its amendment by Acts 1958, c. 380, unconditionally declared “that in an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, . . . shall be used to contradict him as a witness in the case.” Though the ex parte statement was voluntarily made by the injured party, yet it could not be thereafter used though affiant’s adversary might be dependent upon it to establish his nonliability on an asserted claim. This section did not, however, prohibit the admission in evidence of a prior inconsistent oral statement. Public Fin. Corp. v. Londeree, 200 Va. 607 , 106 S.E.2d 760, 1959 Va. LEXIS 145 (1959).

    Only deposition taken on notice may be used. —

    This section prohibits the introduction in evidence of a statement of a witness to an accident involving personal injury unless it is a deposition taken on notice. Krizak v. W.C. Brooks & Sons, 320 F.2d 37, 1963 U.S. App. LEXIS 4777 (4th Cir. 1963).

    Second sentence applies only to tort actions for personal injury or death. —

    The qualification appearing in the second sentence of this section is specifically made applicable only to actions to recover for personal injury or death by wrongful act. While the “unfair practice” referred to in Harris v. Harrington, 180 Va. 210 , 22 S.E.2d 13 (1942), might well be prevalent in other types of actions, the statutory qualification, as written, applies only to tort actions for personal injury or death by wrongful act. Liberty Mut. Ins. Co. v. Venable, 194 Va. 357 , 73 S.E.2d 366, 1952 Va. LEXIS 239 (1952).

    Where plaintiff obtained judgment against insured’s employee for injuries sustained in accident while riding in insured’s truck driven by employee, action by plaintiff against insurance carrier under “omnibus clause” of policy on truck issued to insured was based on a contract, the policy of insurance, and was not an action to recover for personal injury or death by wrongful act. Thus, the qualification of the second sentence of this section was not applicable to such suit. Liberty Mut. Ins. Co. v. Venable, 194 Va. 357 , 73 S.E.2d 366, 1952 Va. LEXIS 239 (1952).

    But applies to litigant called as a witness as well as to disinterested party. —

    The second sentence of this section makes no distinction between a witness who is a party to the action and a witness who is not. The same reasons which led to the adoption of the statute would seem to apply to a party litigant, if called as a witness, as well as to a disinterested party. Alspaugh v. Diggs, 195 Va. 1 , 77 S.E.2d 362, 1953 Va. LEXIS 171 (1953).

    Report by motorman to employer of accident cannot be used to contradict motorman. —

    Written statement or report of accident made by streetcar motorman to his employer, which was not in the form of a deposition taken after due notice, under the express terms of this section was not admissible for the purpose of contradicting the motorman. Robertson v. Commonwealth, 181 Va. 520 , 25 S.E.2d 352, 1943 Va. LEXIS 201 (1943).

    CIRCUIT COURT OPINIONS

    Use of prior inconsistent statement. —

    Driver was entitled to call an insurance company claims representative to testify as a witness about a conversation with the passenger regarding the motorcycle accident because this section allowed the driver to have the representative testify about the conversation for impeachment purposes but not to introduce a transcript of the conversation into evidence. Insley v. Walsh, 85 Va. Cir. 442, 2012 Va. Cir. LEXIS 193 (Surry County Oct. 11, 2012).

    Motion to compel production of tape-recorded statement made in ordinary course of business granted. —

    In a personal injury action filed by a bicyclist against an insured driver, the circuit judge granted the former’s motion to compel production of a taped statement given by the latter to his insurer’s adjuster, as the adjuster was not charged with safety responsibilities, and nothing in the statement indicated the adjuster’s investigation was different from the manner in which he would investigate other claims in the ordinary course of the insurer’s business; moreover, the circuit judge did not believe that the policies the Virginia General Assembly enacted in §§ 8.01-404 and 8.01-417 A had any effect on the application of Va. Sup. Ct. R. 4:1(b)(3) to the facts made known to the judge. McKinnon v. Doman, 72 Va. Cir. 547, 2007 Va. Cir. LEXIS 27 (Norfolk Mar. 1, 2007).

    Prior audio-recorded statement inadmissable to contradict. —

    Once a driver testified about the driver’s speed at the time of an automobile accident, this section prevented admission of a prior audio-recorded statement to contradict the driver. Stern v. Alves, 69 Va. Cir. 291, 2005 Va. Cir. LEXIS 224 (Fairfax County Nov. 12, 2005).

    Motion to exclude recorded statement denied. —

    Driver’s motion in limine to exclude her recorded statement under § 8.01-404 was denied, even though there were limitations on how the recorded statement could be used at trial; the parties could object during trial should any party attempt to use the recorded statement in an impermissible manner. Richards v. Keller, 84 Va. Cir. 402, 2012 Va. Cir. LEXIS 33 (Rockingham County Apr. 4, 2012).

    § 8.01-405. Who may administer oath to witness.

    Any person before whom a witness is to be examined may administer an oath to such witness. In addition, a clerk or deputy clerk may administer an oath to a witness in the presence and at the direction of a judge before whom the witness is to be examined.

    History. Code 1950, § 8-294; 1977, c. 617; 1984, c. 536.

    Cross references.

    As to applicability of §§ 8.01-396.1 , 8.01-402 , 8.01-405 , and 8.01-407 through 8.01-410 to criminal cases, see § 19.2-267 .

    Michie’s Jurisprudence.

    For related discussion, see 20 M.J. Witnesses, § 3.

    § 8.01-406. Interpreters; recording testimony of deaf witness (Supreme Court Rule 2:604 derived from this section).

    Interpreters shall be sworn truly so to do. In any judicial proceeding, the judge on his own motion or on the motion of a party to the proceeding may order all of the testimony of a deaf individual and the interpretation thereof to be visually electronically recorded for use in verification of the official transcript of the proceedings.

    History. Code 1950, § 8-295; 1977, c. 617; 1978, c. 601.

    Cross references.

    As to privileged communications by interpreters for the deaf, see § 8.01-400.1 .

    As to the visual electronic recording of the testimony of a deaf individual and the interpretation thereof for use in verification of the official transcript of criminal proceedings, see § 19.2-164.1 .

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    Article 5. Compelling Attendance of Witnesses, etc.

    § 8.01-407. How summons for witness issued, and to whom directed; prior permission of court to summon certain officials and judges.

    1. A summons may be issued, directed as prescribed in § 8.01-292 , commanding the officer to summon any person to attend on the day and at the place that such attendance is desired, to give evidence before a court, grand jury, arbitrators, magistrate, notary, or any commissioner or other person appointed by a court or acting under its process or authority in a judicial or quasi-judicial capacity. The summons may be issued by the clerk of the court if the attendance is desired at a court or in a proceeding pending in a court. The clerk shall not impose any time restrictions limiting the right to properly request a summons up to and including the date of the proceeding:If attendance is desired before a commissioner in chancery or other commissioner of a court, the summons may be issued by the clerk of the court in which the matter is pending, or by such commissioner in chancery or other commissioner;If attendance is desired before a notary or other officer taking a deposition, the summons may be issued by such notary or other officer at the instance of the attorney desiring the attendance of the person sought;If attendance is sought before a grand jury, the summons may be issued by the attorney for the Commonwealth, or the clerk of the court, at the instance of the attorney for the Commonwealth.Except as otherwise provided in this subsection, if attendance is desired in a civil proceeding pending in a court or at a deposition in connection with such proceeding, including medical malpractice review panels, and a claim before the Workers’ Compensation Commission, a summons may be issued by an attorney-at-law who is an active member of the Virginia State Bar at the time of issuance, as an officer of the court. An attorney-issued summons shall be on a form approved by the Supreme Court, signed by the attorney and shall include the attorney’s address. The summons and any transmittal sheet shall be deemed to be a pleading to which the provisions of § 8.01-271.1 shall apply. A copy of the summons and, if served by a sheriff, all service of process fees, shall be mailed or delivered to the clerk’s office of the court in which the case is pending or the Workers’ Compensation Commission, as applicable, on the day of issuance by the attorney. The law governing summonses issued by a clerk shall apply mutatis mutandis. When an attorney-at-law who is an active member of the Virginia State Bar transmits one or more attorney-issued subpoenas to a sheriff to be served in his jurisdiction, such subpoenas shall be accompanied by a transmittal sheet. The transmittal sheet, which may be in the form of a letter, shall contain for each subpoena (i) the person to be served, (ii) the name of the city or county in which the subpoena is to be served, in parentheses, (iii) the style of the case in which the subpoena was issued, (iv) the court in which the case is pending, and (v) the amount of fees tendered or paid to each clerk in whose court the case is pending together with a photocopy of either (a) the payment instrument and a photocopy of the letter sent to the clerk’s office that accompanied such payment instrument or (b) the clerk’s receipt. If copies of the same transmittal sheet are used to send subpoenas to more than one sheriff for service of process, then subpoenas shall be grouped by the jurisdiction in which they are to be served. For each person to be served, an original subpoena and copy thereof shall be included. If the attorney desires a return copy of the transmittal sheet as proof of receipt, he shall also enclose an additional copy of the transmittal sheet together with an envelope addressed to the attorney with sufficient first class postage affixed. Upon receipt of such transmittal, the transmittal sheet shall be date-stamped and, if the extra copy and above-described envelope are provided, the copy shall also be date-stamped and returned to the attorney-at-law in the above-described envelope.However, when such transmittal does not comply with the provisions of this section, the sheriff may promptly return such transmittal if accompanied by a short description of such noncompliance. An attorney may not issue a summons in any of the following civil proceedings: (a) habeas corpus under Article 3 (§ 8.01-654 et seq.) of Chapter 25 of this title, (b) delinquency or abuse and neglect proceedings under Article 3 (§ 16.1-241 et seq.) of Chapter 11 of Title 16.1, (c) civil forfeiture proceedings, (d) administrative license suspension pursuant to § 46.2-391.2, and (e) petition for writs of mandamus or prohibition in connection with criminal proceedings. A sheriff shall not be required to serve an attorney-issued subpoena that is not issued at least five business days prior to the date that attendance is desired.In other cases, if attendance is desired, the summons may be issued by the clerk of the circuit court of the county or city in which the attendance is desired.A summons shall express on whose behalf, and in what case or about what matter, the witness is to attend. Failure to respond to any such summons shall be punishable by the court in which the proceeding is pending as for contempt. When any subpoena is served less than five calendar days before appearance is required, the court may, after considering all of the circumstances, refuse to enforce the subpoena for lack of adequate notice. If any subpoena is served less than five calendar days before appearance is required upon any judicial officer generally incompetent to testify pursuant to § 19.2-271 , such subpoena shall be without legal force or effect unless the subpoena has been issued by a judge.
    2. No subpoena shall, without permission of the court first obtained, issue for the attendance of the Governor, Lieutenant Governor, or Attorney General of this Commonwealth, a judge of any court thereof; the President or Vice President of the United States; any member of the President’s Cabinet; any ambassador or consul; or any military officer on active duty holding the rank of admiral or general.

    History. Code 1950, §§ 8-296, 8-297; 1952, c. 122; 1977, c. 617; 1992, c. 506; 2000, c. 813; 2002, c. 463; 2004, c. 335; 2007, c. 199; 2010, cc. 302, 486; 2016, c. 173; 2019, c. 519; 2021, Sp. Sess. I, c. 463.

    REVISERS’ NOTE

    The scope of former § 8-296 is extended to include persons acting in a judicial or quasi-judicial capacity, and altered to delete umpires, justices, coroners, and surveyors. The court’s power to punish as for contempt (see § 18.2-456(5)) is expressly included so as to permit such punishment for disobedience of any summons authorized. Subsection B, requiring prior court order to summon certain officials and judges, is new. Former § 8-297 has been made subsection C without substantive change.

    Cross references.

    As to compliance with subpoena by the State Treasurer or an employee of the Department of Treasury, see § 2.2-1812.

    As to applicability of §§ 8.01-396.1 , 8.01-402 , 8.01-405 , and 8.01-407 through 8.01-410 to criminal cases, see § 19.2-267 .

    Editor’s note.

    Acts 2001, cc. 514 and 551, repealed Acts 2000, c. 813, cl. 2, which had provided: “That the provisions of this act shall expire on July 1, 2001, unless reenacted by the 2001 General Assembly. Any subpoena or subpoena duces tecum issued by an attorney in compliance with this act shall remain valid notwithstanding the expiration of this act.” Therefore, the 2000 amendment to this section by c. 813 will not expire.

    The 2000 amendments.

    The 2000 amendment by c. 813 rewrote subsection A.

    The 2002 amendments.

    The 2002 amendment by c. 463 in subsection A, inserted “including medical malpractice review panels, and a claim before the Worker’s Compensation Commission” in the first sentence, inserted “and any transmittal sheet” in the third sentence, deleted “together with payment of all clerk’s fees, if applicable” following “summons” in the fourth sentence, inserted “or the Worker’s Compensation Commission, as applicable” in the fourth sentence, and deleted the former eighth sentence, which read: “Such transmittal sheet shall be signed by the transmitting attorney under penalty of perjury.”

    The 2004 amendments.

    The 2004 amendment by c. 335, in subsection A, substituted “Workers’ Compensation Commission” for “Worker’s Compensation Commission” in the first and fourth sentences of the fourth paragraph and substituted “A sheriff shall not be required to serve an attorney-issued subpoena that is not issued at least” for “A subpoena issued by an attorney shall not be issued less than” in the last sentence of the fifth paragraph.

    The 2007 amendments.

    The 2007 amendment by c. 199 added the fourth sentence of the last paragraph of subsection A.

    The 2010 amendments.

    The 2010 amendments by cc. 302 and 486 are identical, and in the sixth paragraph of subsection A, deleted former clause (iii), which read: “issuance of a protective order pursuant to Article 4 (§ 16.1-246 et seq.) or Article 9 (§ 16.1-278 et seq.) of Chapter 11 of Title 16.1, or Chapter 9.1 (§ 19.2-152.8 et seq.) of Title 19.2” and redesignated former clauses (iv) through (vii) as clauses (iii) through (vi).

    The 2016 amendments.

    The 2016 amendment by c. 173, in subsection A, in the fifth paragraph, inserted “who is an active member of the Virginia State Bar” in the sixth sentence, inserted “either (a),” “and a photocopy of the letter sent to the clerk’s office that accompanied such payment instrument,” and “(b) the” in the seventh sentence; and redesignated clauses (i) through (vi) as clauses (a) through (f) in the sixth paragraph.

    The 2019 amendments.

    The 2019 amendment by c. 519 deleted former subsection C, which read: “This section shall be deemed to authorize a summons to compel attendance of a citizen of the Commonwealth before commissioners or other persons appointed by authority of another state when the summons requires the attendance of such witness at a place not out of his county or city.”

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 463, effective July 1, 2021, in the sixth paragraph in subsection A, deleted former clause (d), which read: “habitual offender proceedings under Article 9 (§ 46.2-351 et seq.) of Chapter 3 of Title 46.2,” and redesignated the remaining clauses accordingly.

    Law Review.

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

    Michie’s Jurisprudence.

    For related discussion, see 5B M.J. Criminal Procedure, § 64.

    CASE NOTES

    This section is applicable alike by its terms to both criminal and civil actions. McCue v. Commonwealth, 103 Va. 870 , 49 S.E. 623 , 1905 Va. LEXIS 55 (1905) (decided under prior law).

    Witness in court may be called upon to testify though not served with subpoena. —

    A litigant’s attendance upon the trial may be compelled by the issuance and service upon him of a subpoena under this section, as is the case with any other witness, but a party to a civil suit, as well as any other witness, who is present in court may be called upon to testify although he may not have been served with a subpoena. Robertson v. Commonwealth, 181 Va. 520 , 25 S.E.2d 352, 1943 Va. LEXIS 201 (1943) (decided under prior law).

    § 8.01-407.1. Identity of persons communicating anonymously over the Internet.

    1. In civil proceedings where it is alleged that an anonymous individual has engaged in Internet communications that are tortious, any subpoena seeking information held by a nongovernmental person or entity that would identify the tortfeasor shall be governed by the following procedure unless more expedited scheduling directions have been ordered by the court upon consideration of the interests of each person affected thereby:
      1. At least thirty days prior to the date on which disclosure is sought, a party seeking information identifying an anonymous communicator shall file with the appropriate circuit court a complete copy of the subpoena and all items annexed or incorporated therein, along with supporting material showing:
        1. That one or more communications that are or may be tortious or illegal have been made by the anonymous communicator, or that the party requesting the subpoena has a legitimate, good faith basis to contend that such party is the victim of conduct actionable in the jurisdiction where the suit was filed. A copy of the communications that are the subject of the action or subpoena shall be submitted.
        2. That other reasonable efforts to identify the anonymous communicator have proven fruitless.
        3. That the identity of the anonymous communicator is important, is centrally needed to advance the claim, relates to a core claim or defense, or is directly and materially relevant to that claim or defense.
        4. That no motion to dismiss, motion for judgment on the pleadings, or judgment as a matter of law, demurrer or summary judgment-type motion challenging the viability of the lawsuit of the underlying plaintiff is pending. The pendency of such a motion may be considered by the court in determining whether to enforce, suspend or strike the proposed disclosure obligation under the subpoena.
        5. That the individuals or entities to whom the subpoena is addressed are likely to have responsive information.
        6. If the subpoena sought relates to an action pending in another jurisdiction, the application shall contain a copy of the pleadings in such action, along with the mandate, writ or commission of the court where the action is pending that authorizes the discovery of the information sought in the Commonwealth.
    2. The party requesting or issuing a subpoena for information identifying an anonymous Internet communicator shall serve along with each copy of such subpoena notices in boldface capital letters in substantially this form: NOTICE TO INTERNET SERVICE PROVIDER WITHIN FIVE BUSINESS DAYS AFTER RECEIPT OF THIS SUBPOENA CALLING FOR IDENTIFYING INFORMATION CONCERNING YOUR CLIENT, SUBSCRIBER OR CUSTOMER, EXCEPT WHERE CONSENT TO DISCLOSURE HAS BEEN GIVEN IN ADVANCE, YOU ARE REQUIRED BY § 8.01-407.1 OF THE CODE OF VIRGINIA TO MAIL ONE COPY THEREOF, BY REGISTERED MAIL OR COMMERCIAL DELIVERY SERVICE, RETURN RECEIPT REQUESTED, TO THE CLIENT, SUBSCRIBER OR CUSTOMER WHOSE IDENTIFYING INFORMATION IS THE SUBJECT OF THE SUBPOENA. AT LEAST SEVEN BUSINESS DAYS PRIOR TO THE DATE ON WHICH DISCLOSURE IS SOUGHT YOU MAY, BUT ARE NOT REQUIRED TO, FILE A DETAILED WRITTEN OBJECTION, MOTION TO QUASH OR MOTION FOR PROTECTIVE ORDER. ANY SUCH OBJECTION OR MOTION SHALL BE SERVED UPON THE PARTY INITIATING THE SUBPOENA AND UPON THE CLIENT, SUBSCRIBER OR CUSTOMER WHOSE IDENTIFYING INFORMATION IS SOUGHT. IF YOU CHOOSE NOT TO OBJECT TO THE SUBPOENA, YOU MUST ALLOW TIME FOR YOUR CLIENT, SUBSCRIBER OR CUSTOMER TO FILE HIS OWN OBJECTION, THEREFORE YOU MUST NOT RESPOND TO THE SUBPOENA ANY EARLIER THAN THREE BUSINESS DAYS BEFORE THE DISCLOSURE IS DUE. IF YOU RECEIVE NOTICE THAT YOUR CLIENT, SUBSCRIBER OR CUSTOMER HAS FILED A WRITTEN OBJECTION, MOTION TO QUASH OR MOTION FOR PROTECTIVE ORDER REGARDING THIS SUBPOENA, OR IF YOU FILE A MOTION TO QUASH THIS SUBPOENA, NO DISCLOSURE PURSUANT TO THE SUBPOENA SHALL BE MADE EXCEPT PURSUANT TO AN ORDER OF THE COURT ON BEHALF OF WHICH THE SUBPOENA WAS ISSUED.  NOTICE TO INTERNET USER  THE ATTACHED PAPERS MEAN THAT   _________ (INSERT NAME OF PARTY REQUESTING OR CAUSING ISSUANCE OF THE SUBPOENA) HAS EITHER ASKED THE COURT TO ISSUE A SUBPOENA, OR A SUBPOENA HAS BEEN ISSUED, TO YOUR INTERNET SERVICE PROVIDER   _________ (INSERT NAME OF INTERNET SERVICE PROVIDER) REQUIRING PRODUCTION OF INFORMATION REGARDING YOUR IDENTITY. UNLESS A DETAILED WRITTEN OBJECTION IS FILED WITH THE COURT, THE SERVICE PROVIDER WILL BE REQUIRED BY LAW TO RESPOND BY PROVIDING THE REQUIRED INFORMATION. IF YOU BELIEVE YOUR IDENTIFYING INFORMATION SHOULD NOT BE DISCLOSED AND OBJECT TO SUCH DISCLOSURE, YOU HAVE THE RIGHT TO FILE WITH THE CLERK OF COURT A DETAILED WRITTEN OBJECTION, MOTION TO QUASH THE SUBPOENA OR MOTION TO OBTAIN A PROTECTIVE ORDER. YOU MAY ELECT TO CONTACT AN ATTORNEY TO REPRESENT YOUR INTERESTS. IF YOU ELECT TO FILE A WRITTEN OBJECTION, MOTION TO QUASH, OR MOTION FOR PROTECTIVE ORDER, IT SHOULD BE FILED AS SOON AS POSSIBLE, AND MUST IN ALL INSTANCES BE FILED NO LESS THAN SEVEN BUSINESS DAYS BEFORE THE DATE ON WHICH DISCLOSURE IS DUE (LISTED IN THE SUBPOENA). IF YOU ELECT TO FILE A WRITTEN OBJECTION OR MOTION AGAINST THIS SUBPOENA, YOU MUST AT THE SAME TIME SEND A COPY OF THAT OBJECTION OR MOTION TO BOTH YOUR INTERNET SERVICE PROVIDER AND THE PARTY WHO REQUESTED THE SUBPOENA. IF YOU WISH TO OPPOSE THE ATTACHED SUBPOENA, IN WHOLE OR IN PART, YOU OR YOUR ATTORNEY MAY FILE A WRITTEN OBJECTION, A MOTION TO QUASH THE SUBPOENA, OR A MOTION FOR A PROTECTIVE ORDER OR YOU MAY USE THE FORM BELOW, WHICH MUST BE FILED WITH THE COURT AND SERVED UPON THE PARTY REQUESTING THE SUBPOENA AND THE INTERNET SERVICE PROVIDER BY MAILING AT LEAST SEVEN BUSINESS DAYS PRIOR TO THE DATE SET IN THE SUBPOENA FOR DISCLOSURE:   _________ Name of Court Listed on Subpoena   _________ Name of Party Seeking Information  Case No.  _______________

    2. Two copies of the subpoena and supporting materials set forth in subdivision A. 1. a. through f. shall be served upon the person to whom it is addressed along with payment sufficient to cover postage for mailing one copy of the application within the United States by registered mail, return receipt requested.

    3. Except where the anonymous communicator has consented to disclosure in advance, within five business days after receipt of a subpoena and supporting materials calling for disclosure of identifying information concerning an anonymous communicator, the individual or entity to whom the subpoena is addressed shall (i) send an electronic mail notification to the anonymous communicator reporting that the subpoena has been received if an e-mail address is available and (ii) dispatch one copy thereof, by registered mail or commercial delivery service, return receipt requested, to the anonymous communicator at his last known address, if any is on file with the person to whom the subpoena is addressed.

    4. At least seven business days prior to the date on which disclosure is sought under the subpoena, any interested person may file a detailed written objection, motion to quash, or motion for protective order. Any such papers filed by the anonymous communicator shall be served on or before the date of filing upon the party seeking the subpoena and the party to whom the subpoena is addressed. Any such papers filed by the party to whom the subpoena is addressed shall be served on or before the date of filing upon the party seeking the subpoena and the anonymous communicator whose identifying information is sought. Service is effective when it has been mailed, dispatched by commercial delivery service, transmitted by facsimile, or delivered to counsel of record and to parties having no counsel.

    5. Any written objection, motion to quash, or motion for protective order shall set forth all grounds relied upon for denying the disclosure sought in the subpoena and shall also address to the extent feasible (i) whether the identity of the anonymous communicator has been disclosed in any way beyond its recordation in the account records of the party to whom the subpoena is addressed, (ii) whether the subpoena fails to allow a reasonable time for compliance, (iii) whether it requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iv) whether it subjects a person to undue burden.

    6. The party to whom the subpoena is addressed shall not comply with the subpoena earlier than three business days before the date on which disclosure is due, to allow the anonymous communicator the opportunity to object. If any person files a written objection, motion to quash, or motion for protective order, compliance with the subpoena shall be deferred until the appropriate court rules on the obligation to comply. If an objection or motion is made, the party serving the subpoena shall not be entitled to inspect or copy the materials except pursuant to an order of the court on behalf of which the subpoena was issued. If an objection or motion has been filed, any interested person may notice the matter for a hearing. Two copies of any such notice shall be served upon the subpoenaed party, who shall mail one copy thereof, by registered mail or commercial delivery service, return receipt requested, to the anonymous communicator whose identifying information is the subject of the subpoena at that person’s last known address.

    OBJECTION TO SUBPOENA DUCES TECUM I object to the Subpoena Duces Tecum addressed to _________ for the following reasons: [Name of Internet Service Provider to Whom the Subpoena is Addressed] (Please PRINT. Set forth, in detail, all reasons why the subpoena should not be complied with, and in addition, state (i) whether the identity of the anonymous communicator has been disclosed in any fashion, (ii) whether the subpoena fails to allow a reasonable time for compliance, (iii) whether it requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iv) whether it subjects a person to undue burden.) _________ _________ _________ _________ _________ _________ _________ _________ (attach additional sheets if needed) _________ Respectfully Submitted, _________ John Doe _________ _________ Enter e-mail nickname or other _________ alias used in communicating via _________ the Internet service provider to _________ whom the subpoena is addressed. _________

    CERTIFICATE I hereby certify that a true copy of the above Objection to Subpoena Duces Tecum was mailed this _______________ day of _______________ , (month, year), to _________ (Name and address of party seeking information) and _________ (Name and address of Internet Service Provider)John Doe _________ Enter e-mail nickname or other _________ alias used in communicating via _________ the Internet service provider to _________ whom the subpoena is addressed. _________

    History. 2002, c. 875.

    Law Review.

    For 2002 survey of Virginia technology law, see 37 U. Rich. L. Rev. 341 (2002).

    For 2007 annual survey article, “Electronic Data: A Commentary on the Law in Virginia in 2007,” see 42 U. Rich. L. Rev. 355 (2007).

    CASE NOTES

    Nonparty subpoena duces tecum. —

    In a case in which a website appealed a judgment of the court of appeals affirming an order of the circuit court holding the website in civil contempt for failing to comply with a nonparty subpoena duces tecum served upon it by a carpet cleaning business, the Supreme Court concluded that the circuit court was not empowered to enforce the nonparty subpoena against the website, which was headquartered in California. Subpoena power was not conferred upon the circuit court by the website’s act in registering to conduct business in Virginia or designating a registered agent for service of process in the Commonwealth. Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 289 Va. 426 , 770 S.E.2d 440, 2015 Va. LEXIS 51 (2015).

    CIRCUIT COURT OPINIONS

    Compliance with subpoena ordered. —

    Corporation was ordered to comply with a subpoena duces tecum to produce identifying information about defendants because the subpoena complied with standard enumerated in § 8.01-407.1 , the statements were tortious if not made by plaintiff’s customers, and the identity of the communicators was essential to maintain a suit for defamation. Hadeed Carpet Cleaning, Inc. v. John Doe # 1, 86 Va. Cir. 59, 2012 Va. Cir. LEXIS 101 (Alexandria Nov. 19, 2012), aff'd, 62 Va. App. 678, 752 S.E.2d 554, 2014 Va. App. LEXIS 1 (2014).

    Motion to quash subpoena duces tecum granted. —

    Defendants’ motion to quash a subpoena duces tecum was granted because plaintiff did not submit sufficient evidence to show that statements anonymous communicator(s) wrote about her on a website were defamatory and did not did not demonstrate that she had a legitimate, good faith basis to contend that she was the victim of conduct actionable; the statement were of opinion or rhetorical hyperbole and were entitled to First Amendment protection. Geloo v. Doe, 88 Va. Cir. 379, 2014 Va. Cir. LEXIS 36 (Fairfax County June 23, 2014).

    § 8.01-408. Recognizance taken upon continuance of case.

    Upon the continuance of any civil case in a court, the court shall at the request of any party litigant require such party’s witnesses then present to enter into recognizance in such penalty as the court may deem proper, either with or without security, for their appearance to give evidence in such case on such day as may then be fixed for the trial thereof, such recognizance to be taken, conditioned, and entered of record in the same manner provided in §§ 19.2-135 to 19.2-137 , for taking recognizance.

    History. Code 1950, § 8-298; 1977, c. 617.

    REVISERS’ NOTE

    The application of former § 8-298 to criminal cases has been deleted in § 8.01-408 and the provisions of this section have been made applicable to all courts.

    Cross references.

    As to applicability of §§ 8.01-396.1 , 8.01-402 , 8.01-405 , and 8.01-407 through 8.01-410 to criminal cases, see § 19.2-267 .

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Bail and Recognizance, § 3.

    § 8.01-409. When court may have process for witness executed by its own officer in another county or city.

    Whenever on the calling or during the trial of a civil case in any court it appears to the court that it is necessary to have a witness from a county or city other than that of trial, the summons, rule, or attachment issued for such witness from the trial court may, when the court so orders, be executed by its officers in any county or city of the Commonwealth, for which services the officer shall be allowed a reasonable compensation by the court.

    History. Code 1950, § 8-299; 1977, c. 617.

    REVISERS’ NOTE

    As in § 8.01-408 , the application of former § 8-299 to criminal cases has been deleted. Also the provisions of this section have been made applicable to all courts.

    Cross references.

    As to applicability of §§ 8.01-396.1 , 8.01-402 , 8.01-405 , and 8.01-407 through 8.01-410 to criminal cases, see § 19.2-267 .

    Michie’s Jurisprudence.

    For related discussion, see 5B M.J. Criminal Procedure, § 64.

    § 8.01-410. Inmates as witnesses in civil actions.

    Whenever any party in a civil action in any circuit court in this Commonwealth requires as a witness in his behalf, an inmate in a state or local correctional facility as defined in § 53.1-1, the court, on the application of such party or his attorney may, in its discretion and upon consideration of the importance of the personal appearance of the witness and the nature of the offense for which he is imprisoned, issue an order to the Director of the Department of Corrections to deliver such witness to the sheriff of the jurisdiction of the court issuing the order. If authorized by the court, the clerk of the circuit court or a deputy clerk may issue these orders on behalf of the court. The sheriff shall transport the inmate to the court to testify as such witness, and after he has testified and been released as such witness, the sheriff shall return the witness to the custody of the Department.

    If necessary the sheriff may confine the inmate for the night in any convenient local correctional facility.

    Under such rules and regulations as the superintendent of such an institution may prescribe, any party to a civil action in any circuit court in this Commonwealth may take the deposition of an inmate in the facility, which deposition, when taken, may be admissible in evidence as other depositions in civil actions.

    The party seeking the testimony of such inmate shall advance a sum sufficient to defray the expenses and compensation of the correctional officers and sheriff, which the court shall tax as other costs.

    For the purposes of this section, “correctional officers” shall have the same meaning as provided in § 53.1-1.

    History. Code 1950, § 8-300.1; 1952, c. 487; 1966, c. 227; 1974, cc. 44, 45; 1977, c. 617; 1998, c. 596; 2001, c. 513; 2002, cc. 515, 544.

    REVISERS’ NOTE

    Several minor language changes have been made in former § 8-300.1 without changing its substance — e.g., the adoption by reference of the definition of correctional and penal institutions in § 53.1-1. Also the final phrase in the first paragraph of the former section pertaining to expenses of the sheriff is relocated in Title 14.1.

    Former § 8-300, convicts as witnesses in criminal cases, was transferred to § 19.2-271.1 .

    Cross references.

    As to applicability of §§ 8.01-396.1 , 8.01-402 , 8.01-405 , and 8.01-407 through 8.01-410 to criminal cases, see § 19.2-267 .

    Editor’s note.

    Title 14.1, referred to in the Revisers’ note above, was repealed by Acts 1998, c. 872. For location of comparable new sections, the comparable table in Volume 10 may be consulted.

    The 2001 amendments.

    The 2001 amendment by c. 513, in the first paragraph, substituted “of the jurisdiction of the court issuing the order. The sheriff shall transport” for “of the county or the city, as the case may be, who shall go where such witness may then be. Under such conditions as shall be prescribed by the superintendent of the institution, such officer shall carry,” and substituted “the sheriff shall return the witness to the custody of the Department” for “carry him back to the place whence he came”; substituted “correctional officers and sheriff” for “officers” in the fourth paragraph; and added the last paragraph.

    The 2002 amendments.

    The 2002 amendment by cc. 515 and 544 are identical, and in the section catchline subtituted “Inmates” for “Convict”; in the first paragraph, substituted “requires as a witness in his behalf, an inmate in a state or local correctional facility” for “shall require as a witness in his behalf, a convict or prisoner in a correctional or penal institution” in the first sentence, inserted the present second sentence, and in the third sentence substituted “inmate” for “convict” and substituted “has testified” for “shall have so testified”; in the second paragraph, substituted “inmate“ for “convict” and substituted “local correctional facility” for “city or county correctional institution”; substituted “an inmate in the facility” for “a convict or prisoner in the institution” in the third paragraph; and substituted “inmate” for “prisoner” in the fourth paragraph.

    Law Review.

    For article, “Legal Issues Involving Children,” see 35 U. Rich. L. Rev. 741 (2001).

    CASE NOTES

    District courts have no authority to order transportation in civil cases. —

    The authority to issue prisoner transportation orders in civil cases granted by this section is vested solely in the circuit courts. By expressly granting the specific authority to issue prisoner transportation orders in civil cases in this statute only to the circuit courts, the general assembly intended to exclude the general district courts from the authority to issue prisoner transportation orders in civil cases. Commonwealth ex rel. Virginia Dep't of Corrections v. Brown, 259 Va. 697 , 529 S.E.2d 96, 2000 Va. LEXIS 73 (2000).

    Motion for transportation to adoption hearing. —

    Trial court abused its discretion by denying the biological father’s motion for a transportation order enabling him to attend a hearing on a petition for adoption filed by the child’s step-father, because the father was prohibited from participating in the adoption hearing that resulted in the termination of his parental rights and irreversibly severed his legal connection to his daughter. Alvis v. Thornton, 2018 Va. App. LEXIS 91 (Va. Ct. App. Apr. 10, 2018).

    Conflict between right to conduct civil litigation and incarceration. —

    This section, in clear and unambiguous terms, provides the judicial authority and the mechanism by which the patent conflict between prisoners’ incarceration and their ability to exercise the right to conduct civil litigation is appropriately resolved and expressly grants to the circuit courts the authority to issue prisoner transportation orders in civil cases. Commonwealth ex rel. Virginia Dep't of Corrections v. Brown, 259 Va. 697 , 529 S.E.2d 96, 2000 Va. LEXIS 73 (2000).

    Trial court erred in dismissing inmate’s divorce action on the grounds that the inmate would not be able to appear for a fact finding hearing before a commissioner in chancery, without considering alternate means by which the inmate could prosecute the action, such as whether the court should order the inmate transported to the court pursuant to § 8.01-410 , have the commissioner conduct the hearing at the prison as would be authorized under § 8.01-614 , or allowing the inmate to present his evidence by way of deposition. Saleem v. Saleem, 2001 Va. App. LEXIS 646 (Va. Ct. App. Nov. 20, 2001).

    OPINIONS OF THE ATTORNEY GENERAL

    Divorce petition brought by incarcerated complainant. —

    Delaying a divorce petition brought by an incarcerated complainant until his release is inadvisable. Even where transportation of the incarcerated complainant is inappropriate, authorized alternatives are available. See opinion of Attorney General to The Honorable Mark S. Davis, Judge, Third Judicial Circuit Circuit Court of the City of Portsmouth, 05-055 (8/1/05).

    Article 6. Uniform Foreign Depositions Act.

    §§ 8.01-411 through 8.01-412.1. Repealed by Acts 2009, c. 701, cl. 2.

    Cross references.

    For current provisions covering foreign depositions, see the Uniform Interstate Depositions and Discovery Act, Article 6.2 (§ 8.01-412.8 et seq.) of Chapter 14 of Title 8.01.

    Article 6.1. Uniform Audio-Visual Deposition Act.

    § 8.01-412.2. Authorization of audio-visual deposition; official record; uses.

    Any deposition may be recorded by audio-visual means without a stenographic record. Any party may make, at his own expense, a simultaneous stenographic or audio record of the deposition. Upon request and at his own expense, any party is entitled to an audio or audio-visual copy of the audio-visual recording.

    The audio-visual recording is an official record of the deposition. A transcript prepared by a court reporter shall also be deemed an official record of the deposition. An audio-visual deposition may be used for any purpose and under any circumstances in which a stenographic deposition may be used.

    For purposes of this article, “audio-visual” shall include video conferencing and teleconferencing.

    History. 1983, c. 305; 2000, c. 821.

    The 2000 amendments.

    The 2000 amendment by c. 821 added the third undesignated paragraph.

    Law Review.

    For article, “Admissibility of Day in the Life Films in Virginia,” see 18 U. Rich. L. Rev. 751 (1984).

    For 1985 survey of Virginia civil procedure and practice, see 19 U. Rich. L. Rev. 679 (1985).

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Discovery, §§ 24, 28.

    § 8.01-412.3. Notice of audio-visual deposition.

    The notice for taking an audio-visual deposition and the subpoena for attendance at that deposition shall state that the deposition will be recorded by audio-visual means.

    History. 1983, c. 305.

    CIRCUIT COURT OPINIONS

    Sufficiency of notice. —

    Because a notice of a deposition complied with § 8.01-412.3 by clearly stating that the deposition was to be taken before a qualified court reporter and videographer, and because the plaintiff failed to justify the failure to attend the deposition, the defendant was entitled to its costs and fees under Va. Sup. Ct. R. 4:12(d). Politi v. United Air Lines, Inc., 72 Va. Cir. 476, 2007 Va. Cir. LEXIS 18 (Fairfax County Feb. 12, 2007).

    § 8.01-412.4. Procedure.

    The taking of audio-visual depositions shall be in accordance with the rules of the Supreme Court generally applicable to depositions. However, the following procedure shall be observed in recording an audio-visual deposition:

    The deposition must begin with an oral or written statement on camera which includes (i) each operator’s name and business address or, if applicable, the identity of the video conferencing or teleconferencing proprietor and locations participating in the video conference or teleconference; (ii) the name and business address of the operator’s employer; (iii) the date, time and place of the deposition; (iv) the caption of the case; (v) the name of the witness; (vi) the party on whose behalf the deposition is being taken; (vii) with respect to video conferencing or teleconferencing, the identities of persons present at the deposition and the location of each such person; and (viii) any stipulations by the parties.

    In addition, all counsel present on behalf of any party or witness shall identify themselves on camera. The oath for witnesses shall be administered on camera. If the length of a deposition requires the use of more than one recording unit, the end of each unit and the beginning of each succeeding unit shall be announced on camera. At the conclusion of a deposition, a statement shall be made on camera that the deposition is concluded. A statement may be made on camera setting forth any stipulations made by counsel concerning the custody of the audio-visual recording and exhibits or other pertinent matters.

    All objections must be made as in the case of stenographic depositions. In any case where the court orders the audio-visual recording to be edited prior to its use, the original recording shall not be altered but shall be maintained as is.

    Unless otherwise stipulated by the parties, the original audio-visual recording of a deposition, any copy edited pursuant to an order of the court, and exhibits shall be filed with the clerk of the court in accordance with the rules of the Supreme Court.

    History. 1983, c. 305; 1993, c. 208; 2000, c. 821.

    The 2000 amendments.

    The 2000 amendment by c. 821, in the second undesignated paragraph, substituted “each” for “the” at the beginning of clause (i), added “or, if applicable, the identity of the video conferencing or teleconferencing proprietor and locations participating in the video conference or teleconference” at the end of clause (i); added present clause (vii); and redesignated former clause (vii) as present clause (viii).

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Discovery, § 13.

    § 8.01-412.5. Costs.

    In any case where a deposition taken pursuant to this article does not conform to the requirements for use of such deposition as provided in the rules of the Supreme Court, the expense of conforming the recording shall be borne by the proponent of the deposition.

    History. 1983, c. 305; 1984, c. 95.

    § 8.01-412.6. Promulgation of rules for standards and guidelines.

    The Supreme Court may promulgate rules establishing standards for audio-visual equipment and guidelines for taking and using audio-visual depositions.

    History. 1983, c. 305.

    § 8.01-412.7. Short title.

    This article may be cited as the “Uniform Audio-Visual Deposition Act.”

    History. 1983, c. 305.

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Discovery, §§ 24, 28.

    Article 6.2. Uniform Interstate Depositions and Discovery Act.

    § 8.01-412.8. Short title.

    This article may be cited as the Uniform Interstate Depositions and Discovery Act.

    History. 2009, c. 701.

    Compact cross references.

    As to provisions of other member states, see:

    California: Cal Code Civ Proc § 2029.100 et seq.

    Colorado: C.R.S. 13-90.5-101 et seq.

    Kentucky: KRS § 421.360.

    Maryland: Md. Courts and Judicial Proceedings Code Ann. § 9-401 to 9-403 et seq.

    Tennessee: Tenn. Code Ann. § 24-9-201 et seq.

    Utah: Utah Code Ann. § 78B-17-101 et seq.

    Law Review.

    For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

    CASE NOTES

    Editor’s note.

    The cases annotated below were decided under former Article 6 (§ 8.01-411 et seq.) of Chapter 14 of Title 8.01.

    Discovery denied to anonymous plaintiff. —

    The circumstances did not present a situation where comity should have been granted to an Indiana court’s order permitting a plaintiff to proceed anonymously and the plaintiff thus could not pursue discovery in Virginia under the Uniform Foreign Depositions Act where it was uncertain whether personal jurisdiction might be obtained over any of the anonymous defendants and where, although the Indiana court permitted the plaintiff to proceed anonymously, it was clear that no hearing was held concerning the question, no evidence was received by the court, no reasons for the decision were given, and the order permitting anonymous maintenance of the action was granted in a non-adversarial, ex parte proceeding. Significantly, because no evidence was received and no reasons for the decision were given by the Indiana court, it could not be determined whether the procedural and substantive law applied by the Indiana court was reasonably comparable to that of Virginia. America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350 , 542 S.E.2d 377, 2001 Va. LEXIS 38 (2001).

    The Uniform Foreign Depositions Act is rooted in principles of comity and provides a mechanism for discovery of evidence in aid of actions pending in foreign jurisdictions. America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350 , 542 S.E.2d 377, 2001 Va. LEXIS 38 (2001).

    Out-of-state subpoena entitled to comity. —

    Trial court did not abuse its discretion in concluding that the California court’s commission for out-of-state discovery was entitled to comity under the Virginia Foreign Depositions Act, § 8.01-411 et seq., and, thus, properly denied movant’s petition to quash the subpoena duces tecum issued in support of that commission where the statutory cause of action for unfair business practices under California law was reasonably comparable to Virginia law and was not repugnant to Virginia public policy. Am. Online, Inc. v. Nam Tai Elecs., Inc, 264 Va. 583 , 571 S.E.2d 128, 2002 Va. LEXIS 157 (2002).

    Nonparty subpoena duces tecum. —

    In a case in which a website appealed a judgment of the court of appeals affirming an order of the circuit court holding the website in civil contempt for failing to comply with a nonparty subpoena duces tecum served upon it by a carpet cleaning business, the Supreme Court concluded that the circuit court was not empowered to enforce the nonparty subpoena against the website, which was headquartered in California. Subpoena power was not conferred upon the circuit court by the website’s act in registering to conduct business in Virginia or designating a registered agent for service of process in the Commonwealth. Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 289 Va. 426 , 770 S.E.2d 440, 2015 Va. LEXIS 51 (2015).

    An action under the Uniform Foreign Depositions Act is a separate action, distinct from, although ancillary to, the underlying cause of action in the foreign jurisdiction. America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350 , 542 S.E.2d 377, 2001 Va. LEXIS 38 (2001).

    California is a reciprocal state. —

    Although California has repealed its version of the Uniform Foreign Depositions Act, it has enacted Cal. Code Civ. Proc. § 2029, which provides for the same privileges to out-of-state parties as does the Virginia Uniform Foreign Depositions Act (VUFDA), § 8.01-411 et seq.; accordingly, California is a reciprocal state for purposes of applying § 8.01-412 of the VUFDA to a commission for out-of-state discovery from a court of that state. Am. Online, Inc. v. Nam Tai Elecs., Inc, 264 Va. 583 , 571 S.E.2d 128, 2002 Va. LEXIS 157 (2002).

    § 8.01-412.9. Definitions.

    For purposes of this article, unless the context requires otherwise:

    “Foreign jurisdiction” means a state other than the Commonwealth.

    “Foreign subpoena” means a subpoena issued under authority of a court of record of a foreign jurisdiction.

    “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.

    “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

    “Subpoena” means a document, however denominated, issued under the authority of a court of record requiring a person to:

    1. Attend and give testimony at a deposition;
    2. Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or
    3. Permit inspection of premises under the control of the person.

    History. 2009, c. 701.

    § 8.01-412.10. Issuance of subpoena.

    1. To request the issuance of a subpoena under this article, a party shall submit to the clerk of court in the circuit in which discovery is sought to be conducted in the Commonwealth (i) a foreign subpoena and (ii) a written statement that the law of the foreign jurisdiction grants reciprocal privileges to citizens of the Commonwealth for taking discovery in the jurisdiction that issued the foreign subpoena.
    2. When a party submits a foreign subpoena to a clerk of court in the Commonwealth, the clerk, in accordance with that court’s procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.
    3. A subpoena under subsection B shall:
      1. Incorporate the terms used in the foreign subpoena; and
      2. Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.
    4. A request for the issuance of a subpoena under this article does not constitute an appearance in the courts of the Commonwealth, and no civil action need be filed in the circuit court of the Commonwealth.
    5. The provisions of this article shall be in addition to other procedures authorized in the Code of Virginia and the rules of court for obtaining discovery, except that no subpoena issued in the Commonwealth pursuant to this article may be issued by any person other than the applicable circuit court clerk of court in the Commonwealth, in accordance with subsections A and B.

    History. 2009, c. 701; 2018, c. 530.

    Cross references.

    As to taking depositions of corporate officers, see § 8.01-420.4:1 .

    The 2018 amendments.

    The 2018 amendment by c. 530 inserted “except that no subpoena issued in the Commonwealth pursuant to this article may be issued by any person other than the applicable circuit court clerk of court in the Commonwealth, in accordance with subsections A and B” in subsection E.

    CASE NOTES

    Nonparty subpoena duces tecum. —

    In a case in which a website appealed a judgment of the court of appeals affirming an order of the circuit court holding the website in civil contempt for failing to comply with a nonparty subpoena duces tecum served upon it by a carpet cleaning business, the Supreme Court concluded that the circuit court was not empowered to enforce the nonparty subpoena against the website, which was headquartered in California. Subpoena power was not conferred upon the circuit court by the website’s act in registering to conduct business in Virginia or designating a registered agent for service of process in the Commonwealth. Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 289 Va. 426 , 770 S.E.2d 440, 2015 Va. LEXIS 51 (2015).

    § 8.01-412.11. Service of subpoena.

    A subpoena issued by a clerk of court under this article shall be served in compliance with the applicable statutes of the Commonwealth for service of a subpoena.

    History. 2009, c. 701.

    § 8.01-412.12. Deposition, production, and inspection.

    Statutes and rules applicable in actions pending in the circuit courts of the Commonwealth with respect to compliance with subpoenas to attend and give testimony, produce designated books, documents, records, electronically stored information, or tangible things, or permit inspection of premises, shall apply to subpoenas issued under § 8.01-412.10 .

    History. 2009, c. 701.

    § 8.01-412.13. Application to court.

    An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under § 8.01-412.10 shall comply with the statutes and rules of court of the Commonwealth and be submitted to the court in the circuit in which discovery is to be conducted. A separate civil action need not be filed.

    History. 2009, c. 701.

    § 8.01-412.14. Uniformity of application and construction; reciprocal privileges.

    In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. The privilege extended to persons in other states for discovery under this article shall only apply if the jurisdiction where the action is pending has extended a similar privilege to persons in the Commonwealth, by that jurisdiction’s enactment of the Uniform Interstate Depositions and Discovery Act, a predecessor uniform act, or another comparable law or rule of court providing substantially similar mechanisms for use by out-of-state parties.

    History. 2009, c. 701.

    § 8.01-412.15. Application to pending actions.

    This article applies to requests for discovery submitted on or after July 1, 2009.

    History. 2009, c. 701.

    Article 7. Medical Evidence.

    § 8.01-413. Certain copies of health care provider’s records or papers of patient admissible; right of patient, his attorney and authorized insurer to copies of such records or papers; subpoena; damages, costs and attorney fees.

    1. In any case where the health care provider’s original records or papers of any patient in a hospital or institution for the treatment of physical or mental illness are admissible or would be admissible as evidence, any typewritten copy, photograph, photostatted copy, or microphotograph or printout or other hard copy generated from computerized or other electronic storage, microfilm, or other photographic, mechanical, electronic, imaging, or chemical storage process thereof shall be admissible as evidence in any court of the Commonwealth in like manner as the original, if the printout or hard copy or microphotograph or photograph is properly authenticated by the employees having authority to release or produce the original records or papers.Any health care provider whose records or papers relating to any such patient are subpoenaed for production as provided by law may comply with the subpoena by a timely mailing to the clerk issuing the subpoena or in whose court the action is pending properly authenticated copies, photographs or microphotographs in lieu of the originals. The court whose clerk issued the subpoena or, in the case of an attorney-issued subpoena, in which the action is pending, may, after notice to such health care provider, enter an order requiring production of the originals, if available, of any stored records or papers whose copies, photographs or microphotographs are not sufficiently legible.Except as provided in subsection G, the party requesting the subpoena duces tecum or on whose behalf an attorney-issued subpoena duces tecum was issued shall be liable for the reasonable charges of the health care provider for the service of maintaining, retrieving, reviewing, preparing, copying, and mailing the items produced pursuant to subsections B2, B3, B4, and B6, as applicable.
    2. Copies of a health care provider’s records or papers shall be furnished within 30 days of receipt of such request to the patient, his attorney, his executor or administrator, or an authorized insurer upon such patient’s, attorney’s, executor’s, administrator’s, or authorized insurer’s written request, which request shall comply with the requirements of subsection E of § 32.1-127.1:03 . If a health care provider is unable to provide such records or papers within 30 days of receipt of such request, such provider shall notify the requester of such records or papers in writing of the reason for the delay and shall have no more than 30 days after the date of such written notice to comply with such request.However, copies of a patient’s records or papers shall not be furnished to such patient when the patient’s treating physician, clinical psychologist, or clinical social worker in the exercise of professional judgment, has made a part of the patient’s records or papers a written statement that in his opinion the furnishing to or review by the patient of such records or papers would be reasonably likely to endanger the life or physical safety of the patient or another person, or that such records or papers make reference to a person, other than a health care provider, and the access requested would be reasonably likely to cause substantial harm to such referenced person. In any such case, if requested by the patient or his attorney or authorized insurer, such records or papers shall be furnished within 30 days of the date of such request to the patient’s attorney or authorized insurer, rather than to the patient.If the records or papers are not provided to the patient in accordance with this section, then, if requested by the patient, the health care provider denying the request shall comply with the patient’s request to either (i) provide a copy of the records or papers to a physician, clinical psychologist, or clinical social worker of the patient’s choice whose licensure, training, and experience, relative to the patient’s condition, are at least equivalent to that of the treating physician, clinical psychologist, or clinical social worker upon whose opinion the denial is based, who shall, at the patient’s expense, make a judgment as to whether to make the records or papers available to the patient or (ii) designate a physician, clinical psychologist, or clinical social worker whose licensure, training, and experience, relative to the patient’s condition, are at least equivalent to that of the treating physician, clinical psychologist, or clinical social worker upon whose opinion the denial is based and who did not participate in the original decision to deny the patient’s request for his records or papers, who shall, at the expense of the provider denying access to the patient, review the records or papers and make a judgment as to whether to make the records or papers available to the patient. In either such event, the health care provider denying the request shall comply with the judgment of the reviewing physician, clinical psychologist, or clinical social worker.Except as provided in subsection G, a reasonable charge may be made by the health care provider maintaining the records or papers for the cost of the services relating to the maintenance, retrieval, review, and preparation of the copies of the records or papers, pursuant to subsections B2, B3, B4, and B6, as applicable. Any health care provider receiving such a request from a patient’s attorney or authorized insurer shall require a writing signed by the patient confirming the attorney’s or authorized insurer’s authority to make the request, which shall comply with the requirements of subsection G of § 32.1-127.1:03 , and shall accept a photocopy, facsimile, or other copy of the original signed by the patient as if it were an original.
    3. Upon the failure of any health care provider to comply with any written request made in accordance with subsection B within the period of time specified in that subsection and within the manner specified in subsections E and F of § 32.1-127.1:03 , the patient, his attorney, his executor or administrator, or authorized insurer may cause a subpoena duces tecum to be issued. The subpoena may be issued (i) upon filing a request therefor with the clerk of the circuit court wherein any eventual suit would be required to be filed, and upon payment of the fees required by subdivision A 18 of § 17.1-275 , and fees for service or (ii) by the patient’s attorney in a pending civil case in accordance with § 8.01-407 without payment of the fees established in subdivision A 23 of § 17.1-275 .A sheriff shall not be required to serve an attorney-issued subpoena that is not issued at least five business days prior to the date production of the record is desired.No subpoena duces tecum for records or papers shall set a return date by which the health care provider must comply with such subpoena earlier than 15 days from the date of the subpoena, except by order of a court or administrative agency for good cause shown. When a court or administrative agency orders that records or papers be disclosed pursuant to a subpoena duces tecum earlier than 15 days from the date of the subpoena, a copy of such order shall accompany such subpoena.As to a subpoena duces tecum issued with at least a 15-day return date, if no motion to quash is filed within 15 days of the issuance of the subpoena, the party requesting the subpoena duces tecum or the party on whose behalf the subpoena was issued shall certify to the subpoenaed health care provider that (a) the time for filing a motion to quash has elapsed and (b) no such motion was filed. Upon receipt of such certification, the subpoenaed health care provider shall comply with the subpoena duces tecum by returning the specified records or papers by either (1) the return date on the subpoena or (2) five days after receipt of such certification, whichever is later.The subpoena shall direct the health care provider to produce and furnish copies of the records or papers to the requester or clerk, who shall then make the same available to the patient, his attorney, or his authorized insurer.If the court finds that a health care provider willfully refused to comply with a written request made in accordance with subsection B, either (A) by failing over the previous six-month period to respond to a second or subsequent written request, properly submitted to the health care provider in writing with complete required information, without good cause or (B) by imposing a charge in excess of the reasonable expense of making the copies and processing the request for records or papers, the court may award damages for all expenses incurred by the patient or authorized insurer to obtain such copies, including a refund of fees if payment has been made for such copies, court costs, and reasonable attorney fees.If the court further finds that such subpoenaed records or papers, subpoenaed pursuant to this subsection, or requested records or papers, requested pursuant to subsection B, are not produced for a reason other than compliance with § 32.1-127.1:03 or an inability to retrieve or access such records or papers, as communicated in writing to the subpoenaing party or requester within the time period required by subsection B, such subpoenaing party or requester shall be entitled to a rebuttable presumption that expenses and attorney fees related to the failure to produce such records or papers shall be awarded by the court.
    4. The provisions of this section shall apply to any health care provider whose office is located within or outside the Commonwealth if the records pertain to any patient who is a party to a cause of action in any court in the Commonwealth, and shall apply only to requests made by the patient, his attorney, his executor or administrator, or any authorized insurer, in anticipation of litigation or in the course of litigation.
    5. As used in this section, “health care provider” has the same meaning as provided in § 32.1-127.1:03 and includes an independent medical copy retrieval service contracted to provide the service of retrieving, reviewing, and preparing such copies for distribution.
    6. Notwithstanding the authorization to admit as evidence patient records in the form of microphotographs, prescription dispensing records maintained in or on behalf of any pharmacy registered or permitted in the Commonwealth shall only be stored in compliance with §§ 54.1-3410, 54.1-3411 and 54.1-3412.
    7. The provisions of this section governing fees that may be charged by a health care provider whose records are subpoenaed or requested pursuant to this section shall not apply in the case of any request by a patient for a copy of his own records, which shall be governed by subsection J of § 32.1-127.1:03 . This subsection shall not be construed to affect other provisions of state or federal statute, regulation or any case decision relating to charges by health care providers for copies of records requested by any person other than a patient when requesting his own records pursuant to subsection J of § 32.1-127.1:03 .

    B1. A health care provider shall produce the records or papers in either paper, hard copy, or electronic format, as requested by the requester. If the health care provider does not maintain the items being requested in an electronic format and does not have the capability to produce such items in an electronic format, such items shall be produced in paper or other hard copy format.

    B2. When the records or papers requested pursuant to subsection B1 are produced in paper or hard copy format from records maintained in (i) paper or other hard copy format or (ii) electronic storage, a health care provider may charge the requester a reasonable fee not to exceed $0.50 per page for up to 50 pages and $0.25 per page thereafter for such copies, $1 per page for hard copies from microfilm or other micrographic process, and a fee for search and handling not to exceed $20, plus all postage and shipping costs.

    B3. When the records or papers requested pursuant to subsection B1 are produced in electronic format from records or papers maintained in electronic storage, a health care provider may charge the requester a reasonable fee not to exceed $0.37 per page for up to 50 pages and $0.18 per page thereafter for such copies and a fee for search and handling not to exceed $20, plus all postage and shipping costs. Except as provided in subsection B4, the total amount charged to the requester for records or papers produced in electronic format pursuant to this subsection, including any postage and shipping costs and any search and handling fee, shall not exceed $150 for any request made on and after July 1, 2017, but prior to July 1, 2021, or $160 for any request made on or after July 1, 2021.

    B4. When any portion of records or papers requested to be produced in electronic format is stored in paper or other hard copy format at the time of the request and not otherwise maintained in electronic storage, a health care provider may charge a fee pursuant to subsection B2 for the production of such portion, and such production of such portion is not subject to any limitations set forth in subsection B3, whether such portion is produced in paper or other hard copy format or converted to electronic format as requested by the requester. Any other portion otherwise maintained in electronic storage shall be produced electronically. The total search and handling fee shall not exceed $20 for any production made pursuant to this subsection where the production contains both records or papers in electronic format and records or papers in paper or other hard copy format.

    B5. Upon request, a patient’s account balance or itemized listing of charges maintained by a health care provider shall be supplied at no cost up to three times every 12 months to either the patient or the patient’s attorney.

    B6. When the record requested is an X-ray series or study or other imaging study and is requested to be produced electronically, a health care provider may charge the requester a reasonable fee, which shall not exceed $25 per X-ray series or study or other imaging study, and a fee for search and handling, which shall not exceed $10, plus all postage and shipping costs. When an X-ray series or study or other imaging study is requested to be produced in hard copy format, or when a health care provider does not maintain such X-ray series or study or other imaging study being requested in an electronic format or does not have the capability to produce such X-ray series or study or other imaging study in an electronic format, a health care provider may charge the requester a reasonable fee, which may include a fee for search and handling not to exceed $10 and the actual cost of supplies for and labor of copying the requested X-ray series or study or other imaging study, plus all postage and shipping costs.

    B7. Upon request by the patient, or his attorney, of records or papers as to the cost to produce such records or papers, a health care provider shall inform the patient, or his attorney, of the most cost-effective method to produce such a request pursuant to subsection B2, B3, B4, or B6, as applicable.

    B8. Production of records or papers to the patient, or his attorney, requested pursuant to this section shall not be withheld or delayed solely on the grounds of nonpayment for such records or papers.

    History. Code 1950, § 8-277.1; 1954, c. 329; 1976, c. 50; 1977, cc. 208, 617; 1981, c. 457; 1982, c. 378; 1990, cc. 99, 320; 1992, c. 696; 1994, cc. 390, 572; 1995, c. 586; 1997, c. 682; 1998, c. 470; 2000, cc. 813, 923; 2001, c. 567; 2002, cc. 463, 654; 2004, cc. 65, 335, 742, 1014; 2005, cc. 642, 697; 2009, c. 270; 2017, c. 457; 2020, c. 945.

    REVISERS’ NOTE

    Former § 8-277.1 has been amended to require that copies of physicians’ as well as hospital records be furnished to the patient, with some limitations; that such copies be furnished in 15 days; that a reasonable charge may be made for the same; and that sanctions may be imposed for failure to comply.

    Former § 8-329.1 was transferred to § 20-61.2.

    Cross references.

    As to exemption of medical record requests incident to sale or relocation of practice from the charges set forth in § 8.01-413 , see § 54.1-2405.

    Editor’s note.

    Former § 8-277.1, corresponding to this section, was amended by Acts 1977, c. 208. This section as enacted by Acts 1977, c. 617, incorporated in substance most of the changes made in the original former § 8-277.1 by c. 208. There were certain minor discrepancies, and, pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the Code Commission, in such instances, used the language of c. 208.

    Section 20-61.2, referred to in the second paragraph of the Revisers’ note, was repealed by Acts 1988, cc. 866 and 878.

    Acts 2001, cc. 514 and 551, repealed Acts 2000, c. 813, cl. 2, which had provided: “That the provisions of this act shall expire on July 1, 2001, unless reenacted by the 2001 General Assembly. Any subpoena or subpoena duces tecum issued by an attorney in compliance with this act shall remain valid notwithstanding the expiration of this act.” Therefore, the 2000 amendment to this section by c. 813 will not expire.

    Acts 2002, c. 654, cl. 2, provides: “That the provisions of this act are declarative of existing law.”

    The 2000 amendments.

    The 2000 amendment by c. 813, in the first sentence of the first undesignated paragraph of subsection A, substituted “as provided by law” for “under this section or the Rules of the Supreme Court of Virginia”, and inserted “or in whose court the action is pending”; inserted “or, in the case of an attorney-issued subpoena, in which the action is pending,” in the second sentence of the first undesignated paragraph of subsection A; inserted “duces tecum or on whose behalf an attorney-issued subpoena duces tecum was issued” in the third sentence of the first undesignated paragraph of subsection A; in subsection B, inserted “subsection E of” preceding “§ 32.1-127.1:03 ” at the end of the first sentence; and rewrote subsection C.

    The 2000 amendment by c. 923 added “and shall accept a photocopy, facsimile, or other copy of the original signed by the patient as if it were an original” at the end of subsection B.

    The 2001 amendments.

    The 2001 amendment by c. 567 inserted “or other hard copy generated from computerized or other electronic storage, or other photographic, mechanical, electronic, imaging or chemical storage process” in the last sentence of the second paragraph of subsection A, and in the fourth sentence of subsection B.

    The 2002 amendments.

    The 2002 amendment by c. 463, in the second sentence in subsection C, in clause (i) deleted the comma following “suit” and inserted “upon,” and in clause (ii) substituted “without payment of the fees established in” for “upon payment of the fees required by,” and deleted “at the time of filing of a copy of the subpoena duces tecum with the clerk” at the end.

    The 2002 amendment by c. 654 inserted all references in the section catchline and text to an “authorized insurer,” and made minor, related changes.

    The 2004 amendments.

    The 2004 amendment by c. 65, in the second paragraph of subsection A, substituted “$.50” for “fifty cents,” “50” for “fifty,” “$.25” for “twenty-five cents,” “$1” for one dollar,” and “$10” for “ten dollars” in the last sentence; rewrote subsection B; and substituted “20” for “twenty” in the second sentence of subsection C.

    The 2004 amendment by c. 335, in subsection A, in the second paragraph, substituted “$.50” for “fifty cents,” “50” for “fifty,” “$.25” for “twenty-five cents,” “$1” for “one dollar,” and “$10” for “ten dollars” in the last sentence and in the fourth sentence of subsection B; in subsection B, substituted “15” for “fifteen” in the first and second sentences; and in subsection C, deleted “if issued by such attorney at least five business days prior to the date that production of the record is desired” following “§ 8.01-407 ,” inserted the present third sentence, and substituted “20” for “twenty” in the present fourth sentence.

    The 2004 amendment by c. 742, in the second paragraph of subsection A, substituted “$.25” for “twenty-five cents,” “$.50” for “fifty cents” and “$10” for “ten dollars”; in subsection B, substituted “15” for “fifteen” twice, inserted “his executor or administrator” preceding “or an authorized,” “executor’s, administrator’s” preceding “or authorized insurer,” substituted “$.50” for “fifty cents,” “50” for “fifty,” “$.25” for “twenty-five cents,” “$1” for “one dollar” and “$10” for “ten dollars”; in subsection C, inserted “his executor or administrator” preceding “or authorized insurer” and substituted “20” for “twenty”; and substituted “the patient, his attorney, his executor or administrator” for “an attorney, his client” in subsection D.

    The 2004 amendment by c. 1014, in subsection B, inserted “of receipt” in the first sentence, rewrote the second paragraph, inserted the present next-to-last paragraph, and in the last paragraph, substituted “services relating to the maintenance, retrieval, review, and preparation of the copies of the records” for “service of maintaining, retrieving, reviewing and preparing such copies” in the first sentence and substituted “a fee for search and handling, not to exceed $10, and all postage and shipping costs” for “plus all postage and shipping costs and a search and handling fee not to exceed ten dollars” in the next-to-last sentence; and made minor stylistic changes.

    This section is set out above as directed by the Virginia Code Commission.

    The 2005 amendments.

    The 2005 amendment by cc. 642 and 697 are identical, and inserted “Except as provided in subsection G” at the beginning of the second undesignated paragraph in subsection A and the third undesignated paragraph in subsection B; inserted subsection G; and made minor stylistic changes.

    The 2009 amendments.

    The 2009 amendment by c. 270 added the last paragraph in subsections A and B.

    The 2017 amendments.

    The 2017 amendment by c. 457 rewrote the section.

    The 2020 amendments.

    The 2020 amendment by c. 945 substituted “clinical psychologist, or clinical social worker” for “or, clinical psychologist” throughout subsection B.

    Law Review.

    For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

    For 2000 survey of Virginia health law, see 34 U. Rich. L. Rev. 853 (2000).

    For article surveying developments in health care law in Virginia, see 37 U. Rich. L. Rev. 199 (2002).

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    CIRCUIT COURT OPINIONS

    Ethical guidelines. —

    American Psychological Association Ethical Guidelines were not binding on a court, and did not create nor supplement the Commonwealth’s laws and did not mitigate a defendant’s duty to produce the records. Mansoor v. Favret, 55 Va. Cir. 302, 2001 Va. Cir. LEXIS 286 (Charlottesville June 13, 2001).

    Applicability. —

    Mental health records of a therapist who treated a child were precluded from production in a custody matter involving the child because only statutory requirement was for the therapist to allow a second physician or clinical psychologist of equivalent credentials to review the files to give a second opinion. Subsection B of § 8.01-413 , has no applicability to the question. Sherfey v. Cushing, 103 Va. Cir. 285, 2019 Va. Cir. LEXIS 615 (Fairfax County Oct. 24, 2019).

    § 8.01-413.01. Authenticity and reasonableness of medical bills; presumption.

    1. In any action for personal injuries, wrongful death, or for medical expense benefits payable under a motor vehicle insurance policy issued pursuant to § 38.2-124 or § 38.2-2201, the authenticity of bills for medical services provided and the reasonableness of the charges of the health care provider shall be rebuttably presumed upon identification by the plaintiff of the original bill or a duly authenticated copy and the plaintiff’s testimony (i) identifying the health care provider, (ii) explaining the circumstances surrounding his receipt of the bill, (iii) describing the services rendered, and (iv) stating that the services were rendered in connection with treatment for the injuries received in the event giving rise to the action. If the court finds the plaintiff is unable to provide such testimony, the plaintiff’s guardian, agent under an advance directive, or agent under a power of attorney may identify the bill or an authenticated copy and provide testimony in lieu of the plaintiff. The presumption herein shall not apply unless the opposing party or his attorney has been furnished such medical records at least 30 days prior to the trial.
    2. Where no medical bill is rendered or specific charge made by a health care provider to the insured, an insurer, or any other person, the usual and customary fee charged for the service rendered may be established by the testimony or the affidavit of an expert having knowledge of the usual and customary fees charged for the services rendered. If the fee is to be established by affidavit, the affidavit shall be submitted to the opposing party or his attorney at least 30 days prior to trial. The testimony or the affidavit is subject to rebuttal and may be admitted in the same manner as an original bill or authenticated copy described in subsection A.

    History. 1993, c. 610; 1996, c. 516; 1997, c. 503; 2016, c. 243.

    The 2016 amendments.

    The 2016 amendment by c. 243, in subsection A, inserted the second sentence and substituted “30 days” for “twenty-one days” in the last sentence; in subsection B, substituted “30 days” for “twenty-one days” and deleted “of this section” from the end of the subsection.

    CASE NOTES

    Expert testimony. —

    Because defendants had put plaintiff and her counsel on notice that they were objecting to portions of the medical bills related to plaintiff’s August 13-22 admission at a medical center, plaintiff had to establish through expert testimony that her hospitalization and treatment at the medical center immediately prior to and following her surgery was causally related to the defendants’ negligence and was reasonable and medically necessary. Wright v. Smith, 641 F. Supp. 2d 536, 2009 U.S. Dist. LEXIS 55781 (W.D. Va. 2009).

    CIRCUIT COURT OPINIONS

    Accident victim’s testimony as to medical bills. —

    Motor vehicle accident victim was entitled to testify that medical services were rendered to the victim in connection with treatment for injuries received in the accident to establish a rebuttable presumption that the medical bills were authentic and the charges reasonable. Kelly v. Laderer, 100 Va. Cir. 87, 2018 Va. Cir. LEXIS 328 (Norfolk Sept. 24, 2018).

    § 8.01-413.02. Admissibility of written reports or records of blood alcohol tests conducted in the regular course of providing emergency medical treatment.

    1. Notwithstanding any other provision of law, the written reports or records of blood alcohol tests conducted upon persons receiving medical treatment in a hospital or emergency room are admissible in evidence as a business records exception to the hearsay rule in any civil proceeding.
    2. The provisions of law pertaining to confidentiality of medical records and medical treatment shall not be applicable to reports or records of blood alcohol tests sought or admitted as evidence under the provisions of this section. Owners or custodians of such reports or records may disclose them, in accordance with regulations concerning patient privacy promulgated by the U.S. Department of Health and Human Services, without obtaining consent or authorization for such disclosure. No person who is involved in taking blood or conducting blood alcohol tests shall be liable for civil damages for breach of confidentiality or unauthorized release of medical records because of the evidentiary use of blood alcohol test results under this section, or as a result of that person’s testimony given pursuant to this section.

    History. 2005, c. 801.

    Law Review.

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    Article 7.1. Employment Evidence.

    § 8.01-413.1. Certain copies of employment records or papers admissible; right of employee or his attorney to copies of such records or papers; subpoena; damages, costs and attorney’s fees.

    1. In any case where the original wage or salary records or papers of any employee are admissible or would be admissible as evidence, any typewritten copy, photograph, photostatic copy, or microphotograph thereof shall be admissible as evidence in any court of this Commonwealth in like manner as the original, provided the typewritten copy, photograph, photostatic copy or microphotograph is properly authenticated by the individual who would have authority to release or produce in court the original records. Any employer whose records or papers relating to any such employee are subpoenaed for production may comply with the subpoena by a timely mailing to the clerk issuing the subpoena properly authenticated copies, photographs or microphotographs in lieu of the originals. The court whose clerk issued the subpoena may, after notice to such employer, enter an order requiring production of the originals, if available, of any records or papers whose copies, photographs or microphotographs are not sufficiently legible. The party requesting the subpoena shall be liable for the reasonable charges of the employer for copying and mailing the items produced.
    2. Every employer shall, upon receipt of a written request from a current or former employee or employee’s attorney, furnish a copy of all records or papers retained by the employer in any format, reflecting (i) the employee’s dates of employment with the employer; (ii) the employee’s wages or salary during the employment; (iii) the employee’s job description and job title during the employment; and (iv) any injuries sustained by the employee during the course of the employment with the employer. Such records or papers shall be provided within 30 days of receipt of such a written request.If the employer is unable to provide such records or papers within 30 days, the employer shall notify the requester of such records or papers in writing of the reason for the delay and shall have no more than 30 days after the date of such written notice to comply with such request. If the records or papers are kept in paper or hard copy format, the employer may charge a reasonable fee per page for copying. If the records or papers are kept in electronic format, the employer may charge a reasonable fee for the electronic records.
    3. Upon failure of any employer to comply with a written request made in accordance with subsection B, the employee or his attorney may cause a subpoena duces tecum to be issued. The subpoena may be issued (i) upon filing a request therefor with the clerk of the circuit court wherein any eventual suit would be required to be filed and upon payment of the fees required by subdivision A 18 of § 17.1-275 and fees for service or (ii) by the employee’s attorney in a pending civil case in accordance with § 8.01-407 without payment of the fees established in subdivision A 23 of § 17.1-275 .
    4. If the court finds that an employer willfully refused to comply with a written request made in accordance with subsection B, either (i) by failing to respond to a second or subsequent written request, properly submitted by the employee in writing, without good cause or (ii) by imposing a charge in excess of the reasonable expense of making the copies and processing the request for records or papers, the court may award damages for all expenses incurred by the employee to obtain such copies, including a refund of fees if payment has been made for such copies, court costs, and reasonable attorney fees.
    5. The provisions of this section shall not require copies of an employee’s records or papers to be furnished to such employee when the employee’s treating physician or clinical psychologist, in the exercise of his professional judgment, has made a part of the employee’s records or papers a written statement that in his opinion the furnishing to or review by the employee of such records or papers would be reasonably likely to endanger the life or physical safety of the employee or another person, or that such records or papers make reference to a person, other than a health care provider, and the access requested would be reasonably likely to cause substantial harm to such referenced person. In any such case, if requested by the employee or his attorney or authorized insurer, such records or papers shall be furnished within 30 days of the date of such request to the employee’s attorney or authorized insurer, rather than to the employee.

    History. 1987, c. 503; 2019, c. 733.

    The 2019 amendments.

    The 2019 amendment by c. 733 added the designation for subsection A; and added subsections B through E.

    Law Review.

    As to copies of employment records, see 22 U. Rich. L. Rev. 621 (1988).

    For article, “Employment Law,” see 54 U. Rich. L. Rev. 103 (2019).

    Article 8. Certain Affidavits.

    § 8.01-414. Affidavit prima facie evidence of nonresidence.

    In any action, an affidavit that a witness or party resides out of this Commonwealth, or is out of it, shall be prima facie evidence of the fact, although such affidavit be made by a party, and without previous notice.

    History. Code 1950, § 8-328; 1977, c. 617.

    § 8.01-415. Affidavit evidence of publication.

    When anything is authorized or required by law to be published in a newspaper, the certificate of the editor, publisher, business manager or assistant business manager, or the affidavit of any other person, shall be admitted as evidence of what is stated herein as to the publication.

    History. Code 1950, § 8-329; 1977, c. 617.

    § 8.01-416. Affidavit re damages to motor vehicle.

    1. In a civil action in any court, whether sounding in contract or tort, to recover for damages to a motor vehicle in excess of $2,500, evidence as to such damages may be presented by an itemized estimate or appraisal sworn to by a person who also makes oath (i) that he is a motor vehicle repairman, estimator or appraiser qualified to determine the amount of such damage or diminution in value; (ii) as to the approximate length of time that he has engaged in such work; and (iii) as to the trade name and address of his business and employer. Such estimate shall not be admitted unless by consent of the adverse party or his counsel, or unless a true copy thereof is mailed or delivered to the adverse party or his counsel not less than seven days prior to the date fixed for trial.
    2. In a civil action in any court, whether sounding in contract or tort, to recover for damages to a motor vehicle of $2,500 or less, evidence as to such damages may be presented by an itemized estimate or appraisal sworn to by a person who also makes oath (i) that he is a motor vehicle repairman, estimator or appraiser qualified to determine the amount of such damage or diminution in value; (ii) as to the approximate length of time that he has engaged in such work; and (iii) as to the trade name and address of his business and employer.

    History. 1977, c. 617; 1980, c. 183; 1990, c. 724; 2010, c. 343.

    REVISERS’ NOTE

    The admission into evidence of an ex parte estimate of the damages to a motor vehicle, now applicable pursuant to § 16.1-88.1 only to general district courts, is made applicable by this section to all courts.

    Editor’s note.

    Section 16.1-88.1 , referred to in the Revisers’ note, was repealed by Acts 1980, c. 183.

    The 2010 amendments.

    The 2010 amendment by c. 343 substituted “$2,500” for “$1,000” in subsections A and B.

    CASE NOTES

    Cost of repair in criminal case could not be established through hearsay testimony. —

    Defendant’s § 18.2-137 conviction was reversed as hearsay testimony of the repair costs for damage to the property was improperly admitted as the caretaker did not have personal knowledge of repair costs and testified to what the management company told him regarding the cost, and no exception to the hearsay rule applied; the exception to the hearsay rule in civil cases for affidavits estimating the cost of repairing the damage to motor vehicles would not be necessary if the Virginia legislature thought that an owner’s testimony as to the value of property meant that the owner could testify to the estimated cost of repairs for property based upon third-party estimates. Gilliam v. Commonwealth, 2013 Va. App. LEXIS 354 (Va. Ct. App. Dec. 3, 2013), vacated in part, No. 1254-12-1, 2014 Va. App. LEXIS 231 (Va. Ct. App. May 27, 2014).

    CIRCUIT COURT OPINIONS

    Repair estimates not made under oath or signed. —

    Where a customer failed to show that a repairman’s alleged negligence caused a vehicle’s transmission problems, and where the repair estimates were not made under oath or signed, the evidence did not comply with § 8.01-416 on the issues of causation and damages; as a result, judgment was entered for the repairman. Burnette v. Brown, 61 Va. Cir. 80, 2003 Va. Cir. LEXIS 242 (Richmond Jan. 22, 2003).

    Article 9. Miscellaneous Provisions.

    § 8.01-417. Copies of written statements or transcriptions of verbal statements by injured person to be delivered to him; copies of subpoenaed documents to be provided to other party; disclosure of insurance policy limits.

    1. Any person who takes from a person who has sustained a personal injury a signed written statement or voice recording of any statement relative to such injury shall deliver to such injured person a copy of such written statement forthwith or a verified typed transcription of such recording within 30 days from the date such statement was given or recording made, when and if the statement or recording is transcribed or in all cases when requested by the injured person or his attorney.
    2. Unless otherwise ordered for good cause shown, when one party to a civil proceeding subpoenas documents, the subpoenaing party, upon receipt of the subpoenaed documents, shall, if requested in writing, provide true and full copies of the same to any other party or to the attorney for any other party, provided the other party or attorney for the other party pays the reasonable cost of copying or reproducing the subpoenaed documents. This provision does not apply where the subpoenaed documents are returnable to and maintained by the clerk of court in which the action is pending.
    3. After he gives written notice that he represents an injured person, an attorney, or an individual injured in a motor vehicle accident if he is not represented by counsel, may, prior to the filing of a civil action for personal injuries sustained as a result of a motor vehicle accident, request in writing that the insurer disclose (i) the limits of liability of any motor vehicle liability or any personal injury liability insurance policy that may be applicable to the claim and (ii) the physical address, if known, of the alleged tortfeasor who is insured by the insurer, if not previously reported to the requesting party. The requesting party shall provide the insurer with the date of the motor vehicle accident, the name and last known address of the alleged tortfeasor if it has been reported to the requesting party, a copy of the accident report, if any, and the claim number, if available. The insurer shall provide the alleged tortfeasor’s physical address within 30 days of the receipt of the request. When requesting the limits of liability, the requesting party shall also submit to the insurer the injured person’s medical records, medical bills, and wage-loss documentation, if applicable, pertaining to the claimed injury. If (a) the total of the medical bills and wage losses submitted equals or exceeds $12,500 or (b) regardless of the amount of losses, the alleged tortfeasor was charged with an offense under § 18.2-51.4 , 18.2-266 , 18.2-266 .1, 18.2-268.3 , or 46.2-341.24 and the injured person’s injuries arose from the same incident that resulted in such charge, the insurer shall respond in writing within 30 days of receipt of the request and shall disclose the limits of liability at the time of the accident of all such policies, regardless of whether the insurer contests the applicability of the policy to the injured person’s claim, and the insured’s address. Disclosure of the policy limits under this section shall not constitute an admission that the alleged injury or damage is subject to the policy. Information concerning the insurance policy is not by reason of disclosure pursuant to this subsection admissible as evidence at trial.
    4. After he gives written notice that he represents the personal representative of the estate of a decedent who died as a result of a motor vehicle accident, an attorney, or the personal representative of the estate of the decedent who died as a result of a motor vehicle accident if he is not represented by counsel, may, prior to the filing of a civil action for wrongful death as a result of a motor vehicle accident, request in writing that the insurer disclose (i) the limits of liability of any motor vehicle liability insurance policy or any personal injury liability insurance policy that may be applicable to the claim and (ii) the physical address, if known, of the alleged tortfeasor who is insured by the insurer, if not previously reported to the requesting party. The requesting party shall provide the insurer with the date of the motor vehicle accident, the name and last known address of the alleged tortfeasor if it has been reported to the requesting party, a copy of the accident report, if any, and the claim number, if available. The insurer shall provide the alleged tortfeasor’s physical address within 30 days of the receipt of the request. When requesting the limits of liability, the requesting party shall submit to the insurer the death certificate of the decedent; the certificate of qualification of the personal representative of the decedent’s estate; the names and relationships of the statutory beneficiaries of the decedent; medical bills, if any, supporting a claim for damages under subdivision 3 of § 8.01-52 ; and, if at the time the request is made a claim for damages under clause (i) of subdivision 2 of § 8.01-52 is anticipated, a description of the source, amount, and payment history of the claimed income loss for each beneficiary. The insurer shall respond in writing within 30 days of receipt of the request and shall disclose the limits of liability at the time of the accident of all such policies, regardless of whether the insurer contests the applicability of the policy to the personal representative’s claim, and the insured’s address. Disclosure of the policy limits under this section shall not constitute an admission that the alleged death or other damage is subject to the policy. Information concerning the insurance policy is not by reason of disclosure pursuant to this subsection admissible as evidence at trial.
    5. For purposes of subsections C and D, if the alleged tortfeasor has insurance coverage from a self-insured locality for a motor vehicle accident, as described in this section, and the locality is authorized by the alleged tortfeasor to accept service of process on behalf of the alleged tortfeasor and agrees to do so, the locality, in its discretion and instead of disclosing the alleged tortfeasor’s home address, may disclose the insured’s work address and the name and address of the person who shall accept service of process on behalf of the alleged tortfeasor. If the locality makes such a disclosure, the locality shall not be required to disclose the alleged tortfeasor’s home address.
    6. As used in subsections C and D, “insurer” does not include the insurance agency or the insurance agent representing the alleged tortfeasor as the authorized representative or agent with respect to the alleged tortfeasor’s motor vehicle insurance policy.

    History. Code 1950, § 8-628.2; 1954, c. 390; 1977, c. 617; 2004, c. 345; 2005, c. 211; 2008, c. 819; 2010, cc. 354, 435; 2015, c. 711; 2016, cc. 241, 267; 2018, c. 479; 2021, Sp. Sess. I, c. 88.

    The 2004 amendments.

    The 2004 amendment by c. 345 inserted the A designation at the beginning of the first paragraph and substituted “30” for “thirty” in subsection A; and added subsection B.

    The 2005 amendments.

    The 2005 amendment by c. 211, in subsection B, added “Unless otherwise ordered for good cause shown” at the beginning of the first sentence, deleted “concerning another party” preceding “the subpoenaing party,” inserted “in writing” following “requested,” and made a minor stylistic change.

    The 2008 amendments.

    The 2008 amendment by c. 819 added subsection C.

    The 2010 amendments.

    The 2010 amendments by cc. 354 and 435 are identical and added subsection D.

    The 2015 amendments.

    The 2015 amendment by c. 711, in subsections C and D, inserted the clause (i) designation and added clause (ii) at the end of the first sentence, inserted “if it has been reported to the requesting party” in the second sentence, and inserted “and the insured’s address” in the fourth sentence; in subsection C, substituted “the medical bills and wage losses submitted” for “all such medical bills and wage losses” in the fourth sentence; added subsections E and F; and made minor stylistic changes.

    The 2016 amendments.

    The 2016 amendments by cc. 241 and 267 are identical, and in subsection C, substituted “physical address, if known” for “address” in clause (ii) of the first sentence, added the third sentence and inserted “When requesting the limits of liability” at the beginning of the fourth sentence; in subsection D, substituted “physical address, if known” for “address” in clause (ii) of the first sentence, added the third sentence and inserted “When requesting the limits of liability” at the beginning of the fourth sentence.

    The 2018 amendments.

    The 2018 amendment by c. 479, in the fifth sentence of subsection C, inserted “(a)” and “or (b) regardless of the amount of losses, the alleged tortfeasor was convicted of an offense under § 18.2-51.4 , 18.2-266 , 18.2-266 .1, or 46.2-341.24 and the injured person’s injuries arose from the same incident that resulted in such conviction.”

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 88, effective July 1, 2021, in the fifth sentence in subsection C, substituted “charged with an offense” for “convicted of an offense,” inserted “18.2-268.3” and substituted “such charge” for “such conviction.”

    Law Review.

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    For annual survey of cases dealing with product liability, including cases involving civil procedure, see 40 U. Rich. L. Rev. 269 (2005).

    For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

    CIRCUIT COURT OPINIONS

    Motion to compel production of tape-recorded statement made in ordinary course of business granted. —

    In a personal injury action filed by a bicyclist against an insured driver, the circuit judge granted the former’s motion to compel production of a taped statement given by the latter to his insurer’s adjuster, as the adjuster was not charged with safety responsibilities, and nothing in the statement indicated the adjuster’s investigation was different from the manner in which he would investigate other claims in the ordinary course of the insurer’s business; moreover, the circuit judge did not believe that the policies the Virginia General Assembly enacted in §§ 8.01-404 and 8.01-417 A had any effect on the application of Va. Sup. Ct. R. 4:1(b)(3) to the facts made known to the judge. McKinnon v. Doman, 72 Va. Cir. 547, 2007 Va. Cir. LEXIS 27 (Norfolk Mar. 1, 2007).

    § 8.01-417.01. Disclosure of certain homeowners insurance and personal injury liability insurance policy limits.

    1. After written notice of representation by an attorney of an individual injured at the residence of another, such attorney, or an individual injured at the residence of another if such individual is not represented by counsel, may, prior to the filing of a civil action for personal injuries sustained at the residence of another, request in writing that the insurer of the residence disclose the limits of liability of any homeowners insurance policy or any personal injury liability insurance policy that may be applicable to the claim. The requesting party shall provide the insurer with the date the injury was sustained; the address of the residence at which the injury was sustained; the name of the owner of the residence; and the claim number, if available. The requesting party shall also submit to the insurer the injured person’s medical records, medical bills, and wage-loss documentation, if applicable, pertaining to the claimed injury. If the total of the medical bills and wage losses submitted equals or exceeds $12,500, the insurer shall respond in writing within 30 days of receipt of the request and shall disclose the limits of liability at the time the injury was sustained of all such policies, regardless of whether the insurer contests the applicability of the policy to the injured person’s claim. Disclosure of the policy limits under this section shall not constitute an admission that the alleged injury or damage is subject to the policy. Information concerning the insurance policy is not by reason of disclosure pursuant to this subsection admissible as evidence at trial.
    2. After written notice of representation by an attorney of the personal representative of the estate of a decedent who died as a result of an injury sustained at the residence of another, such attorney, or the personal representative of the estate of a decedent who died as a result of an injury sustained at the residence of another if such personal representative is not represented by counsel, may, prior to the filing of a civil action for wrongful death as a result of an injury sustained at the residence of another, request in writing that the insurer of the residence disclose the limits of liability of any homeowners insurance policy or any personal injury liability insurance policy that may be applicable to the claim. The requesting party shall provide the insurer with the date the injury was sustained; the address of the residence at which the injury was sustained; the name of the owner of the residence; and the claim number, if available. The requesting party shall also submit to the insurer the death certificate of the decedent; the certificate of qualification of the personal representative of the decedent’s estate; the names and relationships of the statutory beneficiaries of the decedent; medical bills, if any, supporting a claim for damages under subdivision 3 of § 8.01-52 ; and, if at the time the request is made a claim for damages under clause (i) of subdivision 2 of § 8.01-52 is anticipated, a description of the source, amount, and payment history of the claimed income loss for each beneficiary. The insurer shall respond in writing within 30 days of receipt of the request and shall disclose the limits of liability at the time the injury was sustained of all such policies, regardless of whether the insurer contests the applicability of the policy to the personal representative’s claim. Disclosure of the policy limits under this section shall not constitute an admission that the alleged death or other damage is subject to the policy. Information concerning the insurance policy is not by reason of disclosure pursuant to this subsection admissible as evidence at trial.
    3. As used in subsections A and B, “insurer” does not include the insurance agency or the insurance agent representing the homeowner as the authorized representative or agent with respect to any homeowners insurance policy or any personal injury liability insurance policy.

    History. 2017, c. 44.

    § 8.01-417.1. Use of portions of documents in evidence (Subsection (b) of Supreme Court Rule 2:106 derived from this section).

    To expedite trial proceedings in civil cases, upon appropriate and timely motion by counsel, the court may permit the reading to the jury, or the introduction into evidence, of relevant portions of lengthy and complex documents without the necessity of having the jury read or receive the entire document. The court, in its discretion, may permit the entire document to be received by the jury, or may order the parties to edit from any such document admitted into evidence information that is irrelevant to the proceedings.

    History. 1992, c. 720.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    Michie’s Jurisprudence.

    For related discussion, see 7B M.J. Evidence, § 83.

    § 8.01-418. When plea of guilty or nolo contendere or forfeiture in criminal prosecution or traffic case admissible in civil action; proof of such plea.

    Whenever, in any civil action, it is contended that any party thereto pled guilty or nolo contendere or suffered a forfeiture in a prosecution for a criminal offense or traffic infraction which arose out of the same occurrence upon which the civil action is based, evidence of said plea or forfeiture as shown by the records of the criminal court shall be admissible. Where the records of the court in which such prosecution was had are silent or ambiguous as to whether or not such plea was made or forfeiture occurred the court hearing the civil case shall admit such evidence on the question of such plea or forfeiture as may be relevant, and the question of whether such plea was made or forfeiture suffered shall be a question for the court to determine.

    History. Code 1950, § 8-267.1; 1970, c. 354; 1977, c. 617; 1986, c. 46.

    REVISERS’ NOTE

    Former § 8-267.1 is amended to include the party’s having pled nolo contendere or suffered a forfeiture, as well as having pled guilty. It has been changed to provide that in the event of a dispute about such plea or forfeiture, the question is to be decided by the court.

    Law Review.

    For survey of recent legislation on civil procedure — evidence of guilty plea admissible in civil action arising out of same occurrence, see 5 U. Rich. L. Rev. 185 (1970).

    For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977).

    For article, “Preclusion of Evidence of Criminal Conviction in Civil Action Arising from the Same Incident,” see 10 G.M.U. L. Rev. 107 (1988).

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Courts, § 28.

    CASE NOTES

    Judicial estoppel. —

    Trial court erred in applying judicial estoppel in the civil suit by plaintiff against defendant based upon the guilty plea to assault and battery that he made in the earlier criminal case prosecuted on behalf of the Commonwealth because, although the guilty plea was admissible under § 8.01-418 , the admissibility of a guilty plea did not constitute a preclusive bar to defendant’s testimony denying that he had assaulted or battered plaintiff. Mikhaylov v. Sales, 291 Va. 349 , 784 S.E.2d 286, 2016 Va. LEXIS 53 (2016).

    This statute deals with evidentiary question of admissions and apparently was enacted to change the rule enunciated in Fulcher v. Whitlow, 208 Va. 34 , 155 S.E.2d 362 (1967). Selected Risks Ins. Co. v. Dean, 233 Va. 260 , 355 S.E.2d 579, 3 Va. Law Rep. 2345, 1987 Va. LEXIS 194 (1987).

    Guilty plea in district court not admissible in civil proceedings once defendant appeals conviction to circuit court. —

    Since an appeal pursuant to § 16.1-132 annuls or wipes out a former plea of guilty entered in the district court, there no longer exists a guilty plea that otherwise would be admissible in a subsequent civil proceeding under the provisions of § 8.01-418 . Santen v. Tuthill, 265 Va. 492 , 578 S.E.2d 788, 2003 Va. LEXIS 48 (2003).

    Failure to appear in court and pay fines does not constitute forfeiture. —

    The mere failure to appear in general district court to contest a traffic offense and the subsequent payment of a fine and costs do not constitute a forfeiture within the meaning of this section. Yeager v. Adkins, 250 Va. 1 , 458 S.E.2d 467, 1995 Va. LEXIS 71 (1995).

    Admissibility of defendant’s statements from testimony before district court. —

    Defendant’s statements made while testifying before the district court, unlike a guilty plea, is not “wiped out” by an appeal to the circuit court pursuant to § 16.1-132 , and is, therefore, admissible in the subsequent trial of the case. Santen v. Tuthill, 265 Va. 492 , 578 S.E.2d 788, 2003 Va. LEXIS 48 (2003).

    Trial court erred in granting motion in limine which precluded the plaintiff from adducing evidence of the defendant’s guilty plea to a charge of reckless driving stemming from his falling asleep at the wheel and of the chain of events beginning with defendant’s negligently falling asleep and ending with collision. Koutsounadis v. England, 238 Va. 128 , 380 S.E.2d 644, 5 Va. Law Rep. 2837, 1989 Va. LEXIS 98 (1989).

    CIRCUIT COURT OPINIONS

    Guilty plea of traffic infraction. —

    Operator’s motion in limine was granted as under § 8.01-418 , a traffic infraction could be admitted into a civil matter where a party had pleaded guilty or nolo contendere, or suffered a forfeiture, and the operator had pleaded not guilty. Richards v. Keller, 84 Va. Cir. 402, 2012 Va. Cir. LEXIS 33 (Rockingham County Apr. 4, 2012).

    § 8.01-418.1. Evidence of subsequent measures taken not admissible to prove negligence (Supreme Court Rule 2:407 derived from this section).

    When, after the occurrence of an event, measures are taken which, if taken prior to the event would have made the event less likely to occur, evidence of such subsequently taken measures is not admissible to prove negligence or culpable conduct as a cause of the occurrence of the event; provided, that evidence of subsequent measures taken shall not be required to be excluded when offered for another purpose for which it may be admissible, including, but not limited to, proof of ownership, control, feasibility of precautionary measures if controverted, or for impeachment.

    History. 1978, c. 165.

    Editor’s note.

    At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: “That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule.”

    Law Review.

    For survey of Virginia law on evidence for the year 1977-1978, see 64 Va. L. Rev. 1451 (1978).

    CASE NOTES

    Feasibility became controverted in instant case when the plaintiff raised the issue of precautionary measures with a defense witness and the witness stated there was no place at all to store partitions other than the bathroom in the defendant’s office. Therefore, on retrial, the trial court should permit the plaintiff to show that, on the day after the plaintiff was injured, the defendant moved the partitions from the bathroom where they had been stored to an unoccupied office suite used by the defendant to store repossessed furniture. Holcombe v. Nationsbank Fin. Servs. Corp., 248 Va. 445 , 450 S.E.2d 158, 1994 Va. LEXIS 140 (1994).

    § 8.01-418.2. Evidence of polygraph examination inadmissible in any proceeding.

    The analysis of any polygraph test charts produced during any polygraph examination administered to a party or witness shall not be admissible in any proceeding conducted pursuant to § 2.2-1202.1 or conducted by any county, city or town over the objection of any party except as to disciplinary or other actions taken against a polygrapher.

    History. 1993, c. 570; 1995, cc. 770, 818; 2012, cc. 803, 835.

    The 2012 amendments.

    The 2012 amendments by cc. 803 and 835, cl. 8, are identical, and substituted “Chapter 10 (§ 2.2-1000 et seq.) of Title 2.2” for “§ 2.2-1202.1.”

    CASE NOTES

    Voluntary statements made following a polygraph examination admissible. —

    Voluntary statements made by an employee following a polygraph examination were admissible in a state grievance hearing and the hearing officer complied with §§ 8.01-418.2 and 40.1-51.4:4 where neither the testimony of the polygraph examiner nor the results or analysis of the examination was offered in evidence. Lee v. Southside Va. Training Ctr., 2010 Va. App. LEXIS 39 (Va. Ct. App. Feb. 2, 2010).

    § 8.01-418.3. Repealed by Acts 2007, c. 250, cl. 2.

    § 8.01-419. Table of life expectancy.

    Whenever, in any case not otherwise specifically provided for, it is necessary to establish the expectancy of continued life of any person from any period of such person’s life, whether he be living at the time or not, the following table shall be received in all courts and by all persons having power to determine litigation as evidence, with other evidence as to the health, constitution and habits of such person, of such expectancy represented by the figures in the following columns:

    BOTH AGE SEXES MALE FEMALE 0 77.4 74.7 80 1 77 74.3 79.5 2 76 73.3 78.5 3 75 72.4 77.6 4 74 71.4 76.6 5 73.1 70.4 75.6 6 72.1 69.4 74.6 7 71.1 68.4 73.6 8 70.1 67.4 72.6 9 69.1 66.5 71.6 10 68.1 65.5 70.6 11 67.1 64.5 69.6 12 66.1 63.5 68.7 13 65.1 62.5 67.7 14 64.2 61.5 66.7 15 63.2 60.5 65.7 16 62.2 59.6 64.7 17 61.2 58.6 63.7 18 60.3 57.7 62.8 19 59.3 56.7 61.8 20 58.4 55.8 60.8 21 57.4 54.9 59.8 22 56.5 54 58.9 23 55.5 53 57.9 24 54.6 52.1 56.9 25 53.6 51.2 56 26 52.7 50.3 55 27 51.7 49.3 54 28 50.8 48.4 53 29 49.8 47.4 52.1 30 48.9 46.5 51.1 31 47.9 45.6 50.1 32 47 44.6 49.2 33 46 43.7 48.2 34 45.1 42.8 47.2 35 44.1 41.8 46.3 36 43.2 40.9 45.3 37 42.3 40 44.4 38 41.3 39.1 43.4 39 40.4 38.1 42.5 40 39.5 37.2 41.5 41 38.6 36.3 40.6 42 37.6 35.4 39.7 43 36.7 34.5 38.7 44 35.8 33.6 37.8 45 34.9 32.8 36.9 46 34 31.9 36 47 33.1 31 35.1 48 32.3 30.2 34.1 49 31.4 29.3 33.2 50 30.5 28.5 32.3 51 29.6 27.6 31.4 52 28.8 26.8 30.6 53 27.9 26 29.7 54 27.1 25.1 28.8 55 26.2 24.3 27.9 56 25.4 23.5 27 57 24.6 22.7 26.2 58 23.8 21.9 25.3 59 23 21.2 24.5 60 22.2 20.4 23.7 61 21.4 19.6 22.8 62 20.6 18.9 22 63 19.8 18.2 21.2 64 19.1 17.5 20.4 65 18.4 16.8 19.7 66 17.6 16.1 18.9 67 16.9 15.4 18.1 68 16.2 14.7 17.4 69 15.5 14.1 16.7 70 14.8 13.4 15.9 71 14.2 12.8 15.2 72 13.5 12.2 14.5 73 12.9 11.6 13.8 74 12.3 11 13.2 75 11.7 10.5 12.5 76 11.1 9.9 11.9 77 10.5 9.4 11.3 78 10 8.9 10.7 79 9.4 8.4 10.1 80 8.9 7.9 9.5 81 8.4 7.5 9 82 7.9 7 8.4 83 7.5 6.6 7.9 84 7 6.3 7.4 85 6.6 5.9 7 86 6.2 5.5 6.6 87 5.8 5.2 6.1 88 5.5 4.9 5.7 89 5.1 4.6 5.4 90 4.8 4.3 5 91 4.5 4 4.7 92 4.2 3.8 4.4 93 4 3.5 4.1 94 3.7 3.3 3.8 95 3.5 3.1 3.5 96 3.2 2.9 3.3 97 3 2.7 3.1 98 2.8 2.5 2.9 99 2.6 2.4 2.7 100+ 2.5 2.2 2.5

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    History. Code 1950, § 8-263.1; 1966, c. 472; 1977, c. 617; 1986, c. 317; 1996, c. 394; 2009, c. 454.

    REVISERS’ NOTE

    Former § 8-263.1 has been updated to 1973 figures of the United States Department of Health, Education, and Welfare (now the Department of Health and Human Services).

    The 2009 amendments.

    The 2009 amendment by c. 454 rewrote the life expectancy table.

    Law Review.

    For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Death by Wrongful Act, § 16.

    CASE NOTES

    The table is to be considered as evidence. Edwards v. Syrkes, 211 Va. 600 , 179 S.E.2d 902, 1971 Va. LEXIS 228 (1971) (decided under prior law).

    But it is not conclusive or binding. Edwards v. Syrkes, 211 Va. 600 , 179 S.E.2d 902, 1971 Va. LEXIS 228 (1971) (decided under prior law).

    And should be considered with other evidence. —

    It is the duty of the court, when so requested in an action for wrongful death, to tell the jury that a mortality table introduced into evidence is to be considered by them, but it is not conclusive or binding. It shall be considered along with all the other evidence relating to the health, habits, and other circumstances of the person which may tend to influence his life expectancy. Edwards v. Syrkes, 211 Va. 600 , 179 S.E.2d 902, 1971 Va. LEXIS 228 (1971) (decided under prior law).

    Reading section to jury. —

    The objection now made to the action of the trial court in permitting counsel for the plaintiff to read to the jury from this section, it being the table of life expectancy, does not appear to have been voiced in the court below. While this method of introducing the life expectancy table in evidence is unusual, and not an approved procedure, it does not here constitute reversible error. State Farm Mut. Auto. Ins. Co. v. Futrell, 209 Va. 266 , 163 S.E.2d 181, 1968 Va. LEXIS 225 (1968) (decided under prior law).

    Wrongful death action. —

    The expectancy of continued life of the decedent is relevant and necessary to establish the extent of loss for the decedent’s society, companionship, comfort, guidance, advice, services, protection, care, and assistance set out in § 8.01-52 . The expectancy table in this section therefore, is admissible if such items of loss are supported by the evidence. Graddy v. Hatchett, 233 Va. 65 , 353 S.E.2d 741, 3 Va. Law Rep. 1910, 1987 Va. LEXIS 171 (1987).

    Instruction in wrongful death action. —

    In a wrongful death action, the jury should be instructed, if requested, substantially as follows: “The court instructs the jury that the life expectancy table introduced in evidence is to be considered by you as an aid in determining life expectancy, but it is not in any way conclusive or binding. You should consider it along with all the other evidence relating to the health, constitution, and habits of the decedent in your determination of his life expectancy.” Edwards v. Syrkes, 211 Va. 600 , 179 S.E.2d 902, 1971 Va. LEXIS 228 (1971) (decided under prior law).

    Personal injury action. —

    In an action for damages arising out of an automobile accident, where there was evidence that the injury to the plaintiff was not only permanent in nature, but was of a type and character from which the jury could have reasonably inferred the plaintiff would suffer a lessening of his earning capacity, it was proper for the court to have permitted evidence of plaintiff’s life expectancy. Exxon Corp. v. Fulgham, 224 Va. 235 , 294 S.E.2d 894, 1982 Va. LEXIS 285 (1982).

    § 8.01-419.1. Motor vehicle value.

    Whenever in any case not otherwise specifically provided for the value of an automobile is in issue, either civilly or criminally, the tabulated retail values set forth in the National Automobile Dealers’ Association (NADA) “yellow” or “black” books or any vehicle valuation service regularly used and recognized in the automobile industry that is in effect on the relevant date, shall be admissible as evidence of fair market value on the relevant date.

    The determination of value shall be subject to such other creditable evidence as any party may offer to demonstrate that the value as set forth in the NADA publication or any vehicle valuation service utilized by another party fails to reflect the actual condition of the vehicle and that therefore the value may be greater or less than that shown by the NADA publication or any vehicle valuation service.

    History. 1993, c. 759; 2006, c. 402.

    Cross references.

    As to value of motor vehicle for liens of garage keepers and mechanics, see §§ 46.2-644.01 and 46.2-644.02.

    The 2006 amendments.

    The 2006 amendment by c. 402 inserted “or any vehicle valuation service regularly used and recognized in the automobile industry that is” in the first paragraph and in the second paragraph, inserted “or any vehicle valuation service utilized by another party” and “or any vehicle valuation service.”

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    CIRCUIT COURT OPINIONS

    Failure to follow proper statutory procedures is negligence. —

    Where a body shop failed to follow procedures under §§ 8.01-419.1 and 43-34 in valuing and auctioning an owner’s car, the body shop failed to utilize the degree of care that a reasonable person in a similar circumstance would have used when seeking to auction a bailed automobile. The body shop’s failure to follow the standard procedures was both an actual and proximate cause of the owner’s loss of her car. Therefore, its actions amounted to negligence. Shaqwena Anjoli Daughtry v. Gray's Body Shop, Inc., 82 Va. Cir. 366, 2011 Va. Cir. LEXIS 42 (Norfolk Mar. 17, 2011).

    § 8.01-420. Depositions as basis for motion for summary judgment or to strike evidence.

    1. Except as provided in subsections B and C, no motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the suit or action shall agree that such deposition may be so used. Notwithstanding the foregoing, requests for admissions for which the responses are submitted in support of a motion for summary judgment may be based in whole or in part upon any discovery depositions under Rule 4:5 and may include admitted facts learned or referenced in such a deposition, provided that any such request for admission shall not reference the deposition or require the party to admit that the deponent gave specific testimony.
    2. Notwithstanding the provisions of subsection A, a motion for summary judgment seeking dismissal of any claim or demand for punitive damages may be sustained, as to the punitive damages claim or demand only, when based in whole or in part upon any discovery depositions under Rule 4:5. However, such a motion may not be based upon discovery depositions under Rule 4:5 with respect to any claim or demand for punitive damages based on the operation of a motor vehicle by a person while under the influence of alcohol, any narcotic drug, or any other self-administered intoxicant or drug.
    3. Notwithstanding the provisions of subsection A, discovery depositions under Rule 4:5 and affidavits may be used in support of or in opposition to a motion for summary judgment in any action when the only parties to the action are business entities and the amount at issue is $50,000 or more.

    History. Code 1950, § 8-315.1; 1973, c. 483; 1977, c. 617; 1978, c. 417; 2013, c. 76; 2019, cc. 10, 128.

    Cross references.

    As to summary judgment in pro se prisoner civil actions, see § 8.01-696 .

    The 2013 amendments.

    The 2013 amendment by c. 76 rewrote the section.

    The 2019 amendments.

    The 2019 amendments by cc. 10 and 128 are identical, and in subsection A, substituted “subsections B and C” for “subsection B”; and added subsection C.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1974-1975, see 61 Va. L. Rev. 1799 (1975).

    For article on libel and slander in Virginia, see 17 U. Rich. L. Rev. 769 (1983).

    For Survey article, “Civil Practice and Procedure,” see 48 U. Rich. L. Rev. 1 (2013).

    For article, “Civil Practice and Procedure,” see 54 U. Rich. L. Rev. 7 (2019).

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 217.4.

    CASE NOTES

    Reliance on discovery depositions. —

    Trial court did not err in using the discovery deposition testimony from the patient’s expert witness to sustain the surgeon’s motion in limine that ultimately allowed for the granting of the surgeon’s summary judgment motion. Although Va. Sup. Ct. R. 3:20 and § 8.01-420 normally kept parties from using discovery deposition testimony to support a summary judgment motion, the patient acquiesced by not objecting and the motion in limine was the functional equivalent of the summary judgment motion because granting the motion in limine allowed for the granting of the summary judgment motion. Lloyd v. Kime, 275 Va. 98 , 654 S.E.2d 563, 2008 Va. LEXIS 13 (2008).

    CIRCUIT COURT OPINIONS

    Applicability. —

    Because a limited liability company could be divested of its right to refile its tax challenge, given the three-year statute of limitations applicable to such proceedings, the county’s plea in bar was the “functional equivalent” of a motion for summary judgment, indicating the statute applied. HCP Properties-Fair Oaks of Fairfax VA, L.L.C. v. Fairfax Cty., 102 Va. Cir. 160, 2019 Va. Cir. LEXIS 161 (Fairfax County May 24, 2019).

    Reliance on discovery depositions. —

    Statute did not bar the circuit court from using discovery depositions as a basis for its ruling because the parties agreed upon their use. Pack v. Georgia-Pacific LLC, 95 Va. Cir. 351, 2017 Va. Cir. LEXIS 74 (Roanoke Apr. 6, 2017).

    Denial of health care provider’s motion in limine concerning the testimony of the complainant’s expert witness during a deposition was appropriate because the parties did not agree to use the discovery deposition testimony as a basis for a motion in limine/motion for summary judgment. Concepcion v. Culpeper Reg'l Hosp., 107 Va. Cir. 466, 2021 Va. Cir. LEXIS 136 (Culpeper County June 14, 2021).

    Plea in bar. —

    Deposition of a limited liability company’s corporate designee introduced by a county was a trial deposition, and thus, it could be used for any purpose, including in support of the county’s plea in bar; the restriction on use of depositions applies only to discovery depositions. HCP Properties-Fair Oaks of Fairfax VA, L.L.C. v. Fairfax Cty., 102 Va. Cir. 160, 2019 Va. Cir. LEXIS 161 (Fairfax County May 24, 2019).

    § 8.01-420.01. Limiting further disclosure of discoverable materials and information; protective order.

    1. A protective order issued to prevent disclosure of materials or information related to a personal injury action or action for wrongful death produced in discovery in any cause shall not prohibit an attorney from voluntarily sharing such materials or information with an attorney involved in a similar or related matter, with the permission of the court, after notice and an opportunity to be heard to any party or person protected by the protective order, and provided the attorney who receives the material or information agrees, in writing, to be bound by the terms of the protective order.
    2. The provisions of this section shall apply only to protective orders issued on or after July 1, 1989.

    History. 1989, c. 702.

    Law Review.

    For essay on protective orders, see 24 U. Rich. L. Rev. 109 (1989).

    For essay, “Protective Orders in Products Liability Litigation: Striking the Proper Balance,” see 48 Wash. & Lee L. Rev. 1503 (1991).

    § 8.01-420.1. Abolition of common-law perpetuation of testimony.

    The common-law proceeding to perpetuate testimony is abolished.

    History. 1977, c. 617.

    REVISERS’ NOTE

    This is a new section in Title 8.01, enacted in view of the revision of Part Four of the Rules of Court, to make the proceeding provided in Rule 4:2 the exclusive proceeding to perpetuate testimony.

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Discovery, § 14.

    § 8.01-420.2. Limitation on use of recorded conversations as evidence.

    No mechanical recording, electronic or otherwise, of a telephone conversation shall be admitted into evidence in any civil proceeding unless (i) all parties to the conversation were aware the conversation was being recorded or (ii) the portion of the recording to be admitted contains admissions that, if true, would constitute criminal conduct which is the basis for the civil action, and one of the parties was aware of the recording and the proceeding is not one for divorce, separate maintenance or annulment of a marriage. The parties’ knowledge of the recording pursuant to clause (i) shall be demonstrated by a declaration at the beginning of the recorded portion of the conversation to be admitted into evidence that the conversation is being recorded. This section shall not apply to emergency reporting systems operated by police and fire departments and by emergency medical services agencies, nor to any communications common carrier utilizing service observing or random monitoring pursuant to § 19.2-62 .

    History. 1983, c. 503; 1992, c. 567; 2015, cc. 502, 503.

    The 2015 amendments.

    The 2015 amendments by cc. 502 and 503 are identical, and substituted “emergency medical services agencies” for “rescue squads” in the third sentence.

    Law Review.

    For 2007 annual survey article, “Electronic Data: A Commentary on the Law in Virginia in 2007,” see 42 U. Rich. L. Rev. 355 (2007).

    Michie’s Jurisprudence.

    For related discussion, see 16 M.J. Searches and Seizures, § 8.

    CASE NOTES

    A state evidentiary rule does not control admissibility of evidence in federal proceedings. Leitman v. McAusland, 934 F.2d 46, 1991 U.S. App. LEXIS 10263 (4th Cir. 1991).

    CIRCUIT COURT OPINIONS

    Voicemail. —

    Corporation’s motion to exclude evidence of a conversation left on voicemail was denied because the speakers were fully aware that a third party had not responded to their telephone call; this section is clearly directed to recordings by parties to the conversation and not merely the conversation, and voicemail is not a participant in any purposeful activity that would find guidance in the words of the statute but is a mechanical device utilized by callers to communicate when the intended recipient of the call is unavailable to the person placing the call. Pac. Century Dev. & Realty, Inc. v. Wheatland Farms, LLC, 2007 Va. Cir. LEXIS 340 (Loudoun County Mar. 28, 2007).

    § 8.01-420.3. Court reporters to provide transcripts; when recording may be stopped; use of transcript as evidence.

    Upon the request of any counsel of record, or of any party not represented by counsel, and upon payment of the reasonable cost thereof, the court reporter covering any proceeding shall provide the requesting party with a copy of the transcript of such proceeding or any requested portion thereof.

    The court shall not direct the court reporter to cease recording any portion of the proceeding without the consent of all parties or of their counsel of record.

    Whenever a party seeks to introduce the transcript or record of the testimony of a witness at an earlier trial, hearing or deposition, it shall not be necessary for the reporter to be present to prove the transcript or record, provided the reporter duly certifies, in writing, the accuracy of the transcript or record.

    History. 1983, c. 505; 1990, c. 77.

    The number of this section was assigned by the Virginia Code Commission, the number in the 1983 act having been 8.01-420.2 .

    CASE NOTES

    The value of a transcript of a prior mistrial can ordinarily be assumed because it can be used as a discovery device, for trial preparation, or for impeachment purposes at the new trial. Anderson v. Commonwealth, 19 Va. App. 208, 450 S.E.2d 394, 1994 Va. App. LEXIS 669 (1994).

    Establishing need for free transcript. —

    A defendant who claims the right to a free transcript does not bear the burden of proving inadequate such alternatives as may be suggested by the state or conjured up by a court in hindsight. Anderson v. Commonwealth, 19 Va. App. 208, 450 S.E.2d 394, 1994 Va. App. LEXIS 669 (1994).

    In determining whether a defendant needs a free transcript, two factors are relevant: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript. Anderson v. Commonwealth, 19 Va. App. 208, 450 S.E.2d 394, 1994 Va. App. LEXIS 669 (1994).

    No party-to-party duty. —

    One party is under no duty to provide a transcript at its own expense for the other’s benefit. White v. Morano, 249 Va. 27 , 452 S.E.2d 856, 1995 Va. LEXIS 18 (1995).

    Statute inapplicable to request to listen to audio tapes. —

    This section specifically addresses transcripts of proceedings and the circumstances under which copies may be obtained and does not apply to audio tape recordings, which are not transcripts of proceedings, or to a petition that is concerned only with the listening to the tapes and is not a request to obtain copies of them. Smith v. Richmond Newspapers, Inc., 261 Va. 113 , 540 S.E.2d 878, 2001 Va. LEXIS 21 (2001).

    § 8.01-420.4. Taking of depositions.

    1. Party Depositions. —  A deposition of a party, or any witness designated under Rule 4:5(b)(6) to testify on behalf of a party, shall be taken in the county or city in which suit is pending, in an adjacent county or city, at a place upon which the parties agree, or at a place that the court may, for good cause, designate. Good cause may include the expense or inconvenience of a non-resident party defendant appearing in one of the locations specified in this subsection. The restrictions as to parties set forth in this subsection shall not apply where no responsive pleading has been filed or an appearance otherwise made.
    2. Non-party Witness Depositions. —  Unless otherwise provided by the law of the jurisdiction where a non-party witness resides, a deposition of a non-party witness shall be taken in the county or city where the non-party witness resides, is employed, or has his principal place of business; at a place upon which the witness and the parties to the litigation agree; or at a place that the court may, for good cause, designate.

    History. 1989, c. 209; 1991, c. 81; 1993, cc. 428, 940; 2005, c. 597.

    Cross references.

    As to use of depositions in probate of wills, see § 64.2-447 .

    The 2005 amendments.

    The 2005 amendment by c. 597, rewrote subsection A; and added subsection B.

    Law Review.

    For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

    § 8.01-420.4:1. Taking of depositions; corporate officers.

    1. For the purposes of this section, “officer” means the president, chief executive officer, chief operating officer, or chief financial officer of a publicly traded company or of a subsidiary of such company that employs 250 or more people.
    2. In any action in which an officer’s publicly traded company is a party, if a party issues a witness subpoena for the deposition of an officer prior to taking the deposition of a corporate representative pursuant to Supreme Court Rule 4:5(b)(6), and the officer, or company on the officer’s behalf, files a motion for a protective order asserting that the discovery sought is obtainable from some other source that is more convenient, less burdensome, or less expensive, in order to defeat such motion for a protective order, the burden is on the party seeking the deposition to show that (i) the officer’s deposition is reasonably calculated to lead to the discovery of admissible evidence, (ii) the officer may have personal knowledge of discoverable information that cannot reasonably be discovered through other means, and (iii) a deposition of a representative other than the officer or other methods of discovery are unsatisfactory, insufficient, or inadequate.
    3. A motion for a protective order filed pursuant to subsection B shall include one or more proposed corporate employees available to be deposed instead of the officer, along with a description of the employee’s role in the corporation, his knowledge relevant to the subject matter of the litigation, and the source of such knowledge, provided that the party opposing the motion has stated with reasonable particularity the matters on which the officer’s examination is requested.
    4. If a protective order is issued and the party seeking the deposition subsequently learns that the requirements set forth in subsection B can be met, then the party seeking the deposition may file for modification or lifting of the protective order.
    5. The provisions of this section apply to a subpoena issued pursuant to the Uniform Interstate Depositions and Discovery Act (§ 8.01-412.8 et seq.) consistent with the provisions of subsection E of § 8.01-412.10 .

    History. 2019, cc. 9, 50.

    Editor’s note.

    Acts 2019, cc. 9 and 50, cl. 2 was codified as subsection E of this section at the direction of the Virginia Code Commission.

    § 8.01-420.5. Estoppel effect of judicial determination of employment status.

    A final, unappealed order entered by a circuit court of this Commonwealth that a person is or is not an employee of another for the purpose of obtaining jurisdiction shall estop either of said parties from asserting otherwise in any subsequent action between such parties upon the same claim or cause of action before a court of this Commonwealth or the Virginia Workers’ Compensation Commission.

    History. 1997, c. 333.

    § 8.01-420.6. Number of witnesses whose depositions may be taken.

    Notwithstanding any other provision of law or rule of court, there shall be no limit on the number of witnesses whose depositions may be taken by a party except by order of the court for good cause shown.

    History. 2001, c. 595.

    § 8.01-420.7. Attorney-client privilege and work product protection; limitations on waiver.

    1. When disclosure of a communication or information covered by the attorney-client privilege or work product protection made in a proceeding or to any public body as defined in § 2.2-3701 operates as a waiver of the privilege or protection, the waiver extends to an undisclosed communication or information only if:
      1. The waiver is intentional;
      2. The disclosed and undisclosed communications or information concern the same subject matter; and
      3. The disclosed and undisclosed communications or information ought in fairness be considered together.
    2. Disclosure of a communication or information covered by the attorney-client privilege or work product protection made in a proceeding or to any public body as defined in § 2.2-3701 does not operate as a waiver of the privilege or protection if:
      1. The disclosure is inadvertent;
      2. The holder of the privilege or protection took reasonable steps to prevent disclosure; and
      3. The holder promptly took reasonable steps to rectify the error, including, if applicable, complying with the provisions of subdivision (b) (6) (ii) of Rule 4:1 of the Rules of the Supreme Court.
    3. A court may order that the privilege or protection is not waived by the disclosure connected with the litigation pending before the court, in which case the disclosure does not operate as a waiver in any other proceeding.
    4. An agreement on the effect of the disclosure in a proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
    5. This section shall not limit any otherwise applicable waiver of attorney-client privilege or work product protection by an inmate who files an action challenging his conviction or sentence.

    History. 2010, c. 350.

    CIRCUIT COURT OPINIONS

    Relation to marital privilege. —

    Because Virginia recognized the husband-wife privilege codified at § 8.01-398 , the presence of a sister’s husband in a meeting with her counsel did not destroy the confidentiality required for the attorney-client privilege. Brownfield v. Hodous, 82 Va. Cir. 315, 2011 Va. Cir. LEXIS 176 (Charlottesville Mar. 3, 2011).

    § 8.01-420.8. Protection of confidential information in court files.

    1. Whenever a party files, or causes to be filed, with the court a motion, pleading, subpoena, exhibit, or other document containing a social security number or other identification number appearing on a driver’s license or other document issued under Chapter 3 (§ 46.2-300 et seq.) of Title 46.2 or the comparable law of another jurisdiction, or on a credit card, debit card, bank account, or other electronic billing and payment system, the party shall make reasonable efforts to redact all but the last four digits of the identification number.
    2. The provisions of subsection A apply to all civil actions in circuit and district court, unless there is a specific statute to the contrary that applies to the particular type of proceeding in which the party is involved.
    3. Nothing in this section shall create a private cause of action against the party or lawyer who filed the document or any court personnel, the clerk, or any employees of the clerk’s office who received it for filing.

    History. 2014, c. 427; 2020, cc. 1227, 1246.

    Editor’s note.

    Acts 2020, c. 1246, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2021.”

    Acts 2020, cc. 1227 and 1246, cl. 4 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.”

    The 2020 amendments.

    The 2020 amendments by cc. 1227 and 1246, effective January 1, 2021, are identical, and inserted “or other document issued under Chapter 3 (§ 46.2-300 et seq.) of Title 46.2 or the comparable law of another jurisdiction, or on a” in subsection A.

    Chapter 15. Payment and Setoff.

    § 8.01-421. Payment may be pleaded; payment into court of part of claim; procedure upon such payment.

    1. In any action for recovery of a debt the defendant may plead payment of the debt or any part thereof prior to the commencement of the action.
    2. In any personal action, the defendant may pay into court a sum of money on account of what is claimed, or by way of compensation or amends, and plead that he is not indebted to the plaintiff, or that the plaintiff has not sustained damages, to a greater amount than such sum. The plaintiff may accept such sum either in full satisfaction, and then have judgment for his costs, or in part satisfaction, and reply to the allegations of the defendant’s pleadings, and, if issue thereon be found for the defendant, judgment shall be given for the defendant, and he shall recover his costs. The payment of such sum into court shall not be admissible in evidence.

    History. Code 1950, §§ 8-236, 8-237, 8-238; 1954, c. 333; 1977, c. 617; 1978, c. 416.

    REVISERS’ NOTE

    Former § 8-236 has been rewritten to modernize the language and is subsection A of § 8.01-421 . Subsection A is, like the former statute, limited to actions for the recovery of a debt.

    Former §§ 8-237 and 8-238 are subsection B with minor changes. The clerk is no longer designated to receive payment into court, as this was felt to be unnecessary. As in the former statute, subsection B applies to all personal actions, whether sounding in contract or in tort. The last sentence of subsection B has been added.

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Payment, §§ 38, 39.

    CASE NOTES

    A plea of payment is a plea in confession and avoidance. Colley v. Sheppard, 72 Va. (31 Gratt.) 312, 1879 Va. LEXIS 7 (1879); Norvell v. Little, 79 Va. 141 , 1884 Va. LEXIS 71 (1884). (decided under prior law).

    This section has reference to the effect of tender after maturity, and not to the character of the tender. The statute was not designed to affect the law as it applies to the question of a legal tender is pais. Therefore, it does not alter the right of a vendor to demand payment of purchase money in legal tender. Vick v. Howard, 136 Va. 101 , 116 S.E. 465 , 1923 Va. LEXIS 72 (1923) (decided under prior law).

    § 8.01-422. Pleading recoupment.

    In any action on a contract, the defendant may file a pleading, alleging any matter arising out of the transaction which would entitle him to relief in equity or at law, including (i) failure in the consideration of such contract, (ii) fraud in such contract’s procurement, (iii) breach of any other provision of such contract, (iv) breach of any duty imposed upon the plaintiff by law in the making or performance of such contract, or (v) any other matter arising out of the transaction that would entitle the defendant to recover damages from the plaintiff, or the person under whom the plaintiff claims, in whole or in part, against the obligation of the contract; or, if the contract be by deed, alleging any such matter arising under the contract, existing before its execution, or any such mistake therein, or in the execution thereof, or any such other matter arising out of the transaction as would entitle him to such relief in equity or at law; and in either case alleging the amount to which he is entitled by reason of the matters contained in the pleading. If the amount claimed by the defendant exceeds the amount of the plaintiff’s claim, the court or jury may, in a proper case, give judgment in favor of the defendant for such excess.

    History. Code 1950, § 8-241; 1954, c. 617; 1977, c. 617; 2020, c. 1211.

    REVISERS’ NOTE

    Section 8.01-422 is former § 8-241. Rule 3:8 covers nearly any defense to an action or claim, but upon close examination, the rule in its present form does not appear to include equitable defenses to an action on contract such as estoppel or unconscionability. It was therefore decided to retain, without change, this section, which has been in the Code for many years.

    Cross references.

    As to period of limitation for counterclaims, see § 8.01-233 .

    For rule of court allowing counterclaims in civil actions, see Rule 3:9.

    The 2020 amendments.

    The 2020 amendment by c. 1211, in the first sentence, inserted “arising out of the transaction” and “or at law, including (i) failure in the consideration of such contract, (ii) fraud in such contract’s procurement, (iii) breach of any other provision of such contract, (iv) breach of any duty imposed upon the plaintiff by law in the making or performance of such contract, or (v) any other matter arising out of the transaction that would entitle the defendant to recover damages from the plaintiff, or the person under whom the plaintiff claims” and inserted “or at law”; and in the last sentence, substituted “exceeds” for “exceed” and inserted “or jury.”

    Law Review.

    For essay, “Nonsuit in Virginia Civil Trials,” see 48 U. Rich. L. Rev. 265 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 1A M.J. Accounts and Accounting, § 10.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    A statutory plea filed pursuant to this section, successor to § 8-241, is not a counterclaim as that term is used in § 8.01-380 C, successor to § 8-244. Therefore, the conditions attaching to a nonsuit under subsection C of § 8.01-380 do not apply. Bremer v. Doctor's Bldg. Partnership, 251 Va. 74 , 465 S.E.2d 787, 1996 Va. LEXIS 14 (1996).

    Defenses asserted in response to a motion for judgment, such as filed under this section seeking affirmative relief, are not barred or otherwise lost. They may be reasserted if the motion for judgment is subsequently refiled. Bremer v. Doctor's Bldg. Partnership, 251 Va. 74 , 465 S.E.2d 787, 1996 Va. LEXIS 14 (1996).

    Legal defenses inapplicable. —

    The language of this section is clear and unambiguous and, unlike the language in the predecessor statute, does not contain any provisions subjecting equitable pleas of statutory recoupment to defenses available in an action at law such as the statute of limitations. Cummings v. Fulghum, 261 Va. 73 , 540 S.E.2d 494, 2001 Va. LEXIS 3 (2001).

    Recoupment defense dismissed. —

    Appellee did not breach any provision of the agreement, nor did appellee breach any duty it had to appellants in the same transaction; the circuit court did not err in implicitly dismissing the defense of recoupment when it granted summary judgment to appellee. Va. Fuel Corp. v. Lambert Coal Co., 291 Va. 89 , 781 S.E.2d 162, 2016 Va. LEXIS 1 (2016).

    Statute of limitations inapplicable to plea of recoupment. —

    A plea of recoupment under this section is not subject to a statute of limitations defense. Cummings v. Fulghum, 261 Va. 73 , 540 S.E.2d 494, 2001 Va. LEXIS 3 (2001).

    II.Decisions Under Prior Law.
    A.General Consideration.
    1.In General.

    Editor’s note.

    The object of this section was to remedy the defects of the common law, and to enable a defendant both to make such defenses as fraud, failure of consideration, and the like to a suit at law on specialties, and also to recover against the plaintiff any excess of damages he may have sustained, in order to settle in one suit all the rights of the parties arising under the contract, and to prevent circuity of action and a multiplicity of suits. Hamilton v. Goodridge, 164 Va. 123 , 178 S.E. 874 , 1935 Va. LEXIS 185 (1935).

    And to allow certain equitable defenses to be made at law. —

    This section was enacted for the purpose of allowing certain equitable defenses to be made at law, and the defendant, on the issue tendered by the plea, has the right to make the same defense as in equity. Guarantee Co. of N. Am. v. First Nat'l Bank, 95 Va. 480 , 28 S.E. 909 , 1898 Va. LEXIS 4 (1898).

    And to dispose of all matters in controversy in one action. —

    The purpose of this section plainly is to allow all matters in controversy between the plaintiff and the defendant arising out of the same cause of action — i.e., all matters of recoupment — to be disposed of in one action at law, so as to avoid the necessity of the defendant’s bringing a separate suit, whether at law or in equity, to determine any such matter. Cox v. Hagan, 125 Va. 656 , 100 S.E. 666 , 1919 Va. LEXIS 56 (1919) (see Watkins v. West Wytheville Land & Imp. Co., 92 Va. 1 , 22 S.E. 554 (1895); Newport News & Old Point Ry. & Elec. Co. v. Bickford, 105 Va. 182 , 52 S.E. 1011 (1906)).

    Plea under this section is not true plea of setoff. —

    The plea provided for by this section, often miscalled “plea in the nature of a plea of setoff,” bears no resemblance whatever to a setoff, but is a mere enlargement of the common-law right of recoupment. It arises out of the contract sued on; never out of a transaction dehors the contract, as in the case of setoff. The amount need not be liquidated, and it may not only repel plaintiff’s claim, as in common-law recoupment, but defendant may recover over against plaintiff for the excess. It must be specially pleaded and cannot be availed of under the general issue, and it may be used though plaintiff’s action is on a sealed instrument. It may be based on equitable grounds. Dexter-Portland Cement Co. v. Acme Supply Co., 147 Va. 758 , 133 S.E. 788 , 1926 Va. LEXIS 287 (1926).

    The section embodies the law of statutory recoupment. —

    Neely v. White, 177 Va. 358 , 14 S.E.2d 337, 1941 Va. LEXIS 224 (1941).

    A special plea of setoff in Virginia is in effect a statutory plea of recoupment, and an enlargement of the common-law right of recoupment. Odessky v. Monterey Wine Co., 188 Va. 184 , 49 S.E.2d 330, 1948 Va. LEXIS 156 (1948).

    It enlarges the common-law right of recoupment. —

    The provisions of this section were intended to enlarge the right of recoupment theretofore existing at common law. They were intended, not to impair any previous right or take away any defenses previously allowed by the common law, but, in addition thereto, to permit the defendant to recover any legal damages he can prove in excess of the damages claimed by the plaintiff. Davis v. Baxter (1856); Columbia Accident Ass'n v. Rockey, 93 Va. 678 , 25 S.E. 1009 , 1896 Va. LEXIS 125 (1896); Leterman v. Charlottesville Lumber Co., 110 Va. 769 , 67 S.E. 281 , 1910 Va. LEXIS 122 (1910).

    This section applies to proceedings to recover unpaid stock subscriptions. —

    Dickens v. Radford-Willis S. Ry., 121 Va. 353 , 93 S.E. 625 , 1917 Va. LEXIS 40 (1917).

    2.Nature of Defendant’s Demand.

    Claim may be in tort or for unliquidated damages. —

    The fact that the defendant’s claim is in tort or for unliquidated damages is immaterial. If it is based upon matters directly connected with, and injuries growing out of, the contract sued on by plaintiff, it can be asserted as a setoff under this section. Newport News & Old Point Ry. & Elec. Co. v. Bickford, 105 Va. 182 , 52 S.E. 1011 , 1906 Va. LEXIS 23 (1906) (see Leterman v. Charlottesville Lumber Co., 110 Va. 769 , 67 S.E. 281 (1910)).

    If damages are not too speculative. —

    Where plaintiff brought an action to recover for a carload of potatoes and defendant pleaded damages to two other carloads previously brought by way of setoff, the damages were too speculative, as the claim was based upon such items as: “labor account of rots and frosts,” “loss account frosted and number two potatoes,” when number one was bought, “profit on car,” “never sold,” etc. Baker & Co. v. Hartman, 139 Va. 612 , 124 S.E. 425 , 1924 Va. LEXIS 136 (1924).

    3.Necessity That Defendant’s Demand Arise Out of Contract in Suit.

    Words “or any other matter” are restricted by enumerated defenses. —

    The meaning of the words “or any other matter” used in this section is restricted by the enumerated defenses which precede them. American Manganese Co. v. Virginia Manganese Co., 91 Va. 272 , 21 S.E. 466 , 1895 Va. LEXIS 23 (1895) (see Huff v. Broyles, 67 Va. (26 Gratt.) 283 (1875); Gates & Son Co. v. City of Richmond, 103 Va. 702 , 49 S.E. 965 (1905)).

    Hence, defendant’s claim must grow out of contract in suit. —

    No setoff can be pleaded by a defendant under this section which does not grow out of the contract in suit. American Manganese Co. v. Virginia Manganese Co., 91 Va. 272 , 21 S.E. 466 , 1895 Va. LEXIS 23 (1895) (see Huff v. Broyles, 67 Va. (26 Gratt.) 283 (1875); Gates & Son Co. v. City of Richmond, 103 Va. 702 , 49 S.E. 965 (1905)).

    Under this section defendant cannot avail himself of a plea of setoff and counterclaim unless his claim grows out of the contract sued on. Bunting v. Cochran, 99 Va. 558 , 39 S.E. 229 , 1901 Va. LEXIS 78 (1901); Richmond College v. Scott-Nuckols Co., 124 Va. 333 , 98 S.E. 1 , 1919 Va. LEXIS 128 (1919); Cox v. Hagan, 125 Va. 656 , 100 S.E. 666 , 1919 Va. LEXIS 56 (1919); Baker & Co. v. Hartman, 139 Va. 612 , 124 S.E. 425 , 1924 Va. LEXIS 136 (1924).

    A special plea of setoff is available under this section only when the claim sought to be set off grows out of the contract sued on. Odessky v. Monterey Wine Co., 188 Va. 184 , 49 S.E.2d 330, 1948 Va. LEXIS 156 (1948).

    And not out of independent agreement. —

    Where plaintiff, a contractor, sued defendant for a balance due for work done under two contracts, defendant could not set off damages suffered by it under an independent third contract with plaintiff, which had been fully and completely performed. Richmond College v. Scott-Nuckols Co., 124 Va. 333 , 98 S.E. 1 , 1919 Va. LEXIS 128 (1919).

    4.In What Actions Plea May Be Filed.

    Plea may be filed in proceedings by notice of motion. —

    The proceeding by notice of motion for a judgment for money is an action, and the defendant may file a plea under this section to such notice. Newport News & Old Point Ry. & Elec. Co. v. Bickford, 105 Va. 182 , 52 S.E. 1011 , 1906 Va. LEXIS 23 (1906).

    And in actions on sealed instruments. —

    This section changes the common-law rule that no damages are to be allowed the defendant by way of recoupment against the plaintiff’s demand, when that demand is based on an instrument under seal. Columbia Accident Ass'n v. Rockey, 93 Va. 678 , 25 S.E. 1009 , 1896 Va. LEXIS 125 (1896); Kinzie v. Riely, 100 Va. 709 , 42 S.E. 872 , 1902 Va. LEXIS 78 (1902).

    And on contracts relating to realty. —

    There is nothing in the terms of this section to restrict the plea of equitable setoff to contracts in relation to personalty, and there can be no reason for excluding all contracts relating to the sale and purchase of real property from the operation of the section. Watkins v. Hopkins, 54 Va. (13 Gratt.) 743, 1857 Va. LEXIS 33 (1857).

    Unless equitable relief is necessary. —

    Where the equitable grounds relied on require a rescission of the contract, and a reinvestment of the vendor with the title, a special plea under this section is not available; because in such a case a court of law is incompetent to do complete justice between the parties, and recourse must, in the nature of things, be had to a court of equity. Shiflett v. Orange Humane Soc'y, 48 Va. (7 Gratt.) 297, 1851 Va. LEXIS 7 (1851); Watkins v. Hopkins, 54 Va. (13 Gratt.) 743, 1857 Va. LEXIS 33 (1857); Watkins v. West Wytheville Land & Imp. Co., 92 Va. 1 , 22 S.E. 554 , 1895 Va. LEXIS 80 (1895); Mangus v. McClelland, 93 Va. 786 , 22 S.E. 364 , 1895 Va. LEXIS 140 (1895); Tyson v. Williamson, 96 Va. 636 , 32 S.E. 42 , 1899 Va. LEXIS 111 (1899); Mundy v. Garland, 116 Va. 922 , 83 S.E. 491 , 1914 Va. LEXIS 106 (1914).

    But plea of failure of consideration is waiver of right to specific performance. —

    Where the defendant in an action at law on a purchase-money bond, given pursuant to a contract for the sale of land, pleads failure of consideration by reason of the refusal of the plaintiff to make title, he thereby waives his right to have specific performance of the contract in equity. Watkins v. Hopkins, 54 Va. (13 Gratt.) 743, 1857 Va. LEXIS 33 (1857).

    5.By Whom Plea May Be Filed.

    Defense is personal to principal debtor. —

    The defense allowed by this section is personal to the principal, though if successfully made it would redound to the benefit of the surety. Kinzie v. Riely, 100 Va. 709 , 42 S.E. 872 , 1902 Va. LEXIS 78 (1902).

    It does not pass to transferee of stock. —

    Although, in a suit to collect assessments to corporate stock from a subscriber, the subscriber may set up any defense allowed by this section, these defenses are personal to him, and do not pass to the transferee of the stock. Lewis v. Berryville Land & Imp. Co., 90 Va. 693 , 19 S.E. 781 , 1894 Va. LEXIS 45 (1894).

    But agent of undisclosed principal may plead. —

    If the agent of an undisclosed principal, when sued upon a contract by the other party thereto, defends under this section, it is no ground of objection to the plea that the beneficial interest in the recovery, if any, is in another, or that the agent will have to account to another. Leterman v. Charlottesville Lumber Co., 110 Va. 769 , 67 S.E. 281 , 1910 Va. LEXIS 122 (1910).

    B.Grounds for Plea.
    1.Fraud in Procurement of Contract.

    Section changes the common law. —

    Fraud in the procurement of a bond was not available at common law in an action on the bond, but is so available under this section. Tyson v. Williamson, 96 Va. 636 , 32 S.E. 42 , 1899 Va. LEXIS 111 (1899) (see also Taylor v. King, 20 Va. (6 Munf.) 358 (1819); Wyche v. Macklin, 23 Va. (2 Rand.) 426 (1824); Burtners v. Keran, 65 Va. (24 Gratt.) 42 (1873); Hayes v. Virginia Mut. Protection Ass’n, 76 Va. 225 (1882); Guarantee Co. of N. Am. v. First Nat’l Bank, 95 Va. 480 , 28 S.E. 909 (1898)).

    Defendant may show fraud in sale of real estate. —

    A party claiming to have been damaged by fraud or misrepresentation in the procurement of a contract for the sale or purchase of real estate may elect to rescind the contract, or may proceed at law to recover damages. If he is sued at law on bonds given for deferred payment of purchase money, he may file a special plea under this section, and have set off against the plaintiff’s demand the amount of damages sustained by him in consequence of such fraud or misrepresentation. Watkins v. West Wytheville Land & Imp. Co., 92 Va. 1 , 22 S.E. 554 , 1895 Va. LEXIS 80 (1895).

    And fraud in procurement of notes. —

    Where a person is sued on notes he may make defense under this section, that the notes were procured by fraudulent representations. Strickland v. Graybill, 97 Va. 602 , 34 S.E. 475 , 1899 Va. LEXIS 76 (1899).

    The defense of a misrepresentation of law may be made at law by a special plea under the statute, setting out the facts. Brown v. Rice, 67 Va. (26 Gratt.) 467, 1875 Va. LEXIS 31 (1875); Brown v. Rice, 76 Va. 629 , 1882 Va. LEXIS 65 (1882).

    2.Failure of Consideration.

    Defendant may plead failure of consideration in action on note. —

    In an action upon a note the defendant pleaded failure of consideration and sought by a special plea of setoff to be compensated in damages for breach of the contract on the part of the payee which was the main consideration for the note. It was held that under this section defendant had a right to do this. Wallinger v. Kelly, 136 Va. 547 , 117 S.E. 850 , 1923 Va. LEXIS 105 (1923).

    And on bond. —

    While failure of consideration could not be shown in defense of an action on a bond at common law, this defense may now be made by a sworn plea under this section. See Isbell v. Norvell, 45 Va. (4 Gratt.) 176, 1847 Va. LEXIS 42 (1847); Watkins v. Hopkins, 54 Va. (13 Gratt.) 743, 1857 Va. LEXIS 33 (1857); Watkins v. West Wytheville Land & Imp. Co., 92 Va. 1 , 22 S.E. 554 , 1895 Va. LEXIS 80 (1895).

    But want of consideration for bond is no defense. —

    A defense to an action on a bond showing that the bond was originally without consideration cannot be made at common law, nor can such defense be made by special plea under this section allowing equitable defenses to be made at law. The words “failure in the consideration,” as used herein, refer to contracts originally founded on a valuable consideration, which has failed, and not to contracts originally voluntary. Harris v. Harris, 64 Va. (23 Gratt.) 737, 1873 Va. LEXIS 66 (1873).

    Failure to deliver personalty hired may be shown. —

    In an action on a bond given for the hire of property, the obligor is entitled, under a special plea filed under this section, to show a failure of the consideration of the bond, in that part of the property was never in his possession but always remained in the possession of the obligee. Isbell v. Norvell, 45 Va. (4 Gratt.) 176, 1847 Va. LEXIS 42 (1847).

    And so may failure to deliver land at time and in condition agreed. —

    A plea under this section setting up a failure to deliver land at the time and in the condition stipulated for in the contract sued on is a good plea, as setting up a partial failure of the consideration. Watkins v. Hopkins, 54 Va. (13 Gratt.) 743, 1857 Va. LEXIS 33 (1857).

    And lessor’s failure to make repairs. —

    A lessor covenanted to put certain repairs upon the demised premises, which he failed to do. In an action of replevin upon a distress for rent, the tenant may set off the damages accrued by the failure of the lessor to make the repairs. Caldwell & Co. v. Pennington, 44 Va. (3 Gratt.) 91, 1846 Va. LEXIS 29 (1846).

    3.Breach of Warranty.

    Section allows recoupment for breach of warranty in sealed instrument. —

    Damages for breach of warranty in a sealed instrument can only be claimed under this section, and in the manner prescribed therein. Such damages cannot be claimed at common law by way of recoupment against a sealed instrument. Kinzie v. Riely, 100 Va. 709 , 42 S.E. 872 , 1902 Va. LEXIS 78 (1902).

    And for breach of warranty of title to realty. —

    A grantee of real estate, when sued at law by his grantor for the purchase price, may under this section file a special plea claiming damages for a breach of warranty or covenant of title by his grantor, unless the defense would require the contract to be rescinded and the grantor to be reinvested with the title conveyed. Kinzie v. Riely, 100 Va. 709 , 42 S.E. 872 , 1902 Va. LEXIS 78 (1902) (see Pence v. Huston, 47 Va. (6 Gratt.) 304 (1849); Watkins v. Hopkins, 54 Va. (13 Gratt.) 743 (1857); Tyson v. Williamson, 96 Va. 636 , 32 S.E. 42 (1899)).

    4.Other Matters Entitling Defendant to Equitable Relief.

    Equitable damages may be asserted in a plea of statutory recoupment under this section. Odessky v. Monterey Wine Co., 188 Va. 184 , 49 S.E.2d 330, 1948 Va. LEXIS 156 (1948).

    Special plea may set up defense of mistake of fact. —

    A plea averred that the note in suit was made for the balance of a note given for the aggregate of sundry notes, and that in the aggregate there was by mistake included a note which had been paid, and that the mistake had been continued on into the note in suit, and was only recently discovered by defendant. It was held that, if such was a defense, it should have been made by a sworn plea under this section, or in a court of equity. Keckley v. Union Bank, 79 Va. 458 , 1884 Va. LEXIS 102 (1884).

    Or defense that attorney’s fee is unreasonable or unconscionable. —

    The defense in an action by an indorser, who has taken up and paid the note at maturity against the makers, that the amount claimed by plaintiff as attorney’s fee under the obligation sued on, and provided for therein, is unreasonable in amount or unconscionable, can be made by special plea under this section, although there is no necessity therefor. Cox v. Hagan, 125 Va. 656 , 100 S.E. 666 , 1919 Va. LEXIS 56 (1919).

    But plea based on defendant’s own fraud will not be allowed. —

    In an action on a bond the defendant filed a special plea alleging that he voluntarily executed the bond for the express purpose of defeating certain claimants who had sued him for damages, because in the excitement prevailing just after the war the court and the jury would not have done him justice in those suits. He attempted to sustain this plea on the ground that it alleged such matter existing before the execution of the bond as entitled him to relief in equity against the obligation thereof. It was held that he was, in effect, asking the court to relieve him from the consequences of his own fraud and that the court must presume that no injustice would have been perpetrated in the regular course of legal proceedings. Harris v. Harris, 64 Va. (23 Gratt.) 737, 1873 Va. LEXIS 66 (1873).

    C.Procedure.
    1.In General.

    Equitable rules apply. —

    Where the plaintiff sues the defendant at law on a bond given for the purchase money of land, and the defendant sets up the defense of equitable setoff, under this section, for the value of a deficiency in the quantity of the land sold, the rules governing in an equitable forum are applicable, and the plaintiff may rebut the claim of the defendant by any evidence which would have been appropriate to his defense had the defendant elected to proceed by bill in equity. Caldwell v. Craig, 62 Va. (21 Gratt.) 132, 1871 Va. LEXIS 74 (1871) (see Grayson v. Buchanan, 88 Va. 251 , 13 S.E. 457 (1891)).

    And this should be recognized in instructions. —

    When in a court of law the defendant makes an equitable defense under the statute, the rules of equity prevail, and he is entitled to the same relief as in a court of equity. Hence, an instruction that ignorance or mistake of law cannot be considered as a defense because the suit is in a court of law, is erroneous. Brown v. Rice, 76 Va. 629 , 1882 Va. LEXIS 65 (1882) (see also Brown v. Rice, 67 Va. (26 Gratt.) 467 (1875)).

    Instructions may not ignore special plea. —

    Where a defendant has filed a special plea of setoff and has introduced evidence tending to support it, it is error to ignore entirely the defendant’s case and instruct the jury to find for the plaintiff if they believe he has established the items of his account sued for. The jury should be instructed that the amount found to be due the plaintiff was to be off-set by whatever sum, if any, they might believe from the evidence was due from the plaintiff to the defendant, and that the verdict should be for the party to whom the balance was found due. Carlin v. Fraser, 105 Va. 216 , 53 S.E. 145 , 1906 Va. LEXIS 28 (1906) (see King & Co. v. Hancock & Sons, 114 Va. 596 , 77 S.E. 510 (1913)).

    Finding of jury on issue of fraud is conclusive. —

    Where the jury found for the plaintiff on an issue of fraud in the procurement of a contract made by a special plea, the finding could not be disturbed on an appeal, as the jury were the judges of the weight and credibility of the testimony. Rausch & Co. v. Graham Mfg. Corp., 140 Va. 445 , 124 S.E. 427 , 1924 Va. LEXIS 186 (1924).

    Verdict on motion to strike defendant’s evidence. —

    Where the only defense set up to the plaintiff’s cause of action is for damages by way of a special setoff under this section, and the plaintiff demurs (now moves to strike) to the defendant’s evidence, the verdict should be for the defendant, assessing his damages at a stated sum, subject to the opinion of the court upon the plaintiff’s demurrer to the evidence (now motion to strike), and if upon the demurrer to the evidence (now motion to strike), the law be with the plaintiff, then for the plaintiff, whatever sum the jury ascertain to be due. South Roanoke Land Co. v. Roberts, 99 Va. 487 , 39 S.E. 133 , 1901 Va. LEXIS 68 (1901).

    2.Plea.
    a.In General.

    Certain matters of recoupment are provable under general issue. —

    The defense of recoupment as to unsealed instruments, to the extent that it does not exceed the plaintiff’s demand, can be made under the general issue, and, in such a case, a special plea under this section is unnecessary. Winn Bros. & Baker v. Lipscomb, 127 Va. 554 , 103 S.E. 623 , 1920 Va. LEXIS 69 (1920) (see Davis v. Baxter, 2 Pat. & H. 133 (1856); Columbia Accident Ass’n v. Rockey, 93 Va. 678 , 25 S.E. 1009 (1895); Keckley v. Union Bank, 79 Va. 458 (1884)).

    Time of making plea is in discretion of court. —

    A plea of special setoff was filed nearly two months before the trial, giving the opposite party ample time to prepare for trial. It was held that the determination of the question as to whether the plea was tendered in time rested in the sound discretion of the trial court, and that in allowing the plea there was no abuse of this discretion. Wallinger v. Kelly, 136 Va. 547 , 117 S.E. 850 , 1923 Va. LEXIS 105 (1923).

    Inconsistent pleas are allowed. —

    In an action of assumpsit brought by the seller of goods against the buyer for failure to accept and pay for the goods ordered, defendant pleaded non-assumpsit, and a special plea of recoupment under this section to recover damages of plaintiff for failure to deliver the goods to the defendant. It was insisted on behalf of plaintiff that when the defendant filed its special plea it forever waived its right to defend on the ground that it had rescinded the contract because of the failure of the plaintiff to begin deliveries at the time agreed upon. It was held that this position was not tenable. Norfolk Hosiery & Underwear Mills v. Aetna Hosiery Co., 124 Va. 221 , 98 S.E. 43 , 1919 Va. LEXIS 173 (1919).

    Plea must show compliance with section. —

    A plea of equitable offset must show that the offset is such as may be set up under this section. Watkins v. Hopkins, 54 Va. (13 Gratt.) 743, 1857 Va. LEXIS 33 (1857).

    It should state amount of defendant’s claim. —

    A special plea under this section must allege the amount to which the defendant is entitled by reason of the matters contained in the plea. Tyson v. Williamson, 96 Va. 636 , 32 S.E. 42 , 1899 Va. LEXIS 111 (1899); Richmond Ice Co. v. Crystal Ice Co., 99 Va. 239 , 37 S.E. 851 , 1901 Va. LEXIS 34 (1901); Cox v. Hagan, 125 Va. 656 , 100 S.E. 666 , 1919 Va. LEXIS 56 (1919).

    Or extent to which plaintiff’s claim is unreasonable or unconscionable. —

    If in an action by an indorser against the maker of a note, defense by way of special plea under this section is adopted to plaintiff’s claim for attorney’s fee, the plea should allege the amount to the extent of which the defendant claims the attorney’s fee in question is unreasonable or unconscionable. Cox v. Hagan, 125 Va. 656 , 100 S.E. 666 , 1919 Va. LEXIS 56 (1919).

    b.Setting Out Grounds of Defense.

    Grounds of defense should be set forth with certainty. —

    The defendant, in order to avail himself of the defenses provided by this section, should file a special plea averring the fraud or special circumstances which entitle him to relief in equity. And the facts should be set forth with sufficient precision and certainty to apprise the plaintiff of the character of the defense intended to be made, and to enable the court to decide whether the matter relied on constitutes a valid claim to equitable relief. Burtners v. Keran, 65 Va. (24 Gratt.) 42, 1873 Va. LEXIS 4 (1873); Richardson v. Insurance Co., 68 Va. (27 Gratt.) 749, 1876 Va. LEXIS 66 (1876); Cox v. Hagan, 125 Va. 656 , 100 S.E. 666 , 1919 Va. LEXIS 56 (1919).

    Neither fraud nor breach of warranty can be left to inference. —

    In an action of debt on a bond for the hire of personalty, if the obligor files a special plea under the statute, and relies on the contract of hiring as furnishing him with an equitable defense, he should set forth the contract of hiring according to its terms or legal effect, and he must allege distinctly any fraud or warranty in regard to it, upon which he founds his defense. Neither fraud nor a breach of warranty can properly be left by the plea to conjecture or inference. Howell v. Cowles, 47 Va. (6 Gratt.) 393, 1849 Va. LEXIS 61 (1849).

    Facts showing fraud or existence of warranty must be averred. —

    In an action of debt on a bond, a special plea was defective and was properly rejected which alleged that the bond was given for the price of goods which defendant bought of plaintiff, who represented that they were sound and marketable, when in fact they were unsound and damaged, and by reason thereof unsalable; but which did not aver a warranty of the quality of the goods, or that the plaintiff knew that the said representations made by him were untrue, or that he used any fraud or art to disguise or conceal their true condition or quality. But in such case a plea would be good which averred that the representations were untrue, and that the plaintiff at the time of making them knew them to be untrue, and knowingly made them with the intent to defraud the defendant, and which proceeded to set out the unsoundness of numerous articles purchased, and to detail particulars in which the representations had turned out to be untrue. Cunningham v. Smith, 51 Va. (10 Gratt.) 255, 1853 Va. LEXIS 45 (1853). But see Guarantee Co. of N. Am. v. First Nat'l Bank, 95 Va. 480 , 28 S.E. 909 , 1898 Va. LEXIS 4 (1898).

    But plea need not allege scienter. —

    A plea under this section is sufficient which avers that the statements of facts were falsely and fraudulently made for the purpose of procuring the contract, that they were material, that they were untrue, and that the defendant to whom they were made relied upon them, and was by them induced to enter into the contract, although it does not in its terms aver scienter. Strickland v. Graybill, 97 Va. 602 , 34 S.E. 475 , 1899 Va. LEXIS 76 (1899).

    It is immaterial that a plea under this section does not allege that the misrepresentations relied on were known by the plaintiff to be false. If a party innocently misrepresents a material fact by mistake, the effect is the same on the party who is misled by it as if he who innocently made the misrepresentation knew it to be positively false. Guarantee Co. of N. Am. v. First Nat'l Bank, 95 Va. 480 , 28 S.E. 909 , 1898 Va. LEXIS 4 (1898). But see Cunningham v. Smith, 51 Va. (10 Gratt.) 255, 1853 Va. LEXIS 45 (1853).

    It must allege worthlessness of property at time contract made. —

    A plea of special set-off under this section which sets up the worthlessness of property which formed the consideration of the contract in suit, must aver worthlessness at the time of the contract, and not at the date of the plea. South Roanoke Land Co. v. Roberts, 99 Va. 487 , 39 S.E. 133 , 1901 Va. LEXIS 68 (1901); Tyson v. Williamson, 96 Va. 636 , 32 S.E. 42 , 1899 Va. LEXIS 111 (1899).

    Allegation of unsoundness in general terms is sufficient. —

    In an action on a bond given for the price of personalty a special plea was good, which averred in general terms that the property was unsound at the time of the sale, and that the plaintiff knew the fact, and fraudulently concealed it from the defendant, and that upon discovering the fact the defendant offered to return the property and demanded a rescission of the contract, which plaintiff refused, laying the damages to the whole amount of the price, or not laying any damages, and praying for judgment in bar of the action. And if such a plea averred in general terms the unsoundness of the property, and then added a specific unsoundness, the defendant might under the plea prove any unsoundness, and he would not be confined to the specific unsoundness mentioned in the plea. Fleming v. Toler, 48 Va. (7 Gratt.) 310, 1851 Va. LEXIS 10 (1851).

    Plea held sufficiently certain and precise. —

    In an action upon a note the defendant pleaded failure of consideration, and sought by a special plea of setoff to be compensated in damages for breach of the contract on the part of the payee which was the main consideration for the note. It was objected that the plea did not set out the things alleged with sufficient precision and certainty. It was held that though there should be such precision and certainty, and the plea alleged both failure of consideration and fraud, yet in view of the circumstance that the plea was not filed after the first trial of the case, in which the defendant had fully developed in evidence all the details of the matters alleged in the plea, it was plain that the allegations were sufficiently precise. Wallinger v. Kelly, 136 Va. 547 , 117 S.E. 850 , 1923 Va. LEXIS 105 (1923).

    b.Setting Out Grounds of Defense.

    Grounds of defense should be set forth with certainty. —

    The defendant, in order to avail himself of the defenses provided by this section, should file a special plea averring the fraud or special circumstances which entitle him to relief in equity. And the facts should be set forth with sufficient precision and certainty to apprise the plaintiff of the character of the defense intended to be made, and to enable the court to decide whether the matter relied on constitutes a valid claim to equitable relief. Burtners v. Keran, 65 Va. (24 Gratt.) 42, 1873 Va. LEXIS 4 (1873); Richardson v. Insurance Co., 68 Va. (27 Gratt.) 749, 1876 Va. LEXIS 66 (1876); Cox v. Hagan, 125 Va. 656 , 100 S.E. 666 , 1919 Va. LEXIS 56 (1919).

    Neither fraud nor breach of warranty can be left to inference. —

    In an action of debt on a bond for the hire of personalty, if the obligor files a special plea under the statute, and relies on the contract of hiring as furnishing him with an equitable defense, he should set forth the contract of hiring according to its terms or legal effect, and he must allege distinctly any fraud or warranty in regard to it, upon which he founds his defense. Neither fraud nor a breach of warranty can properly be left by the plea to conjecture or inference. Howell v. Cowles, 47 Va. (6 Gratt.) 393, 1849 Va. LEXIS 61 (1849).

    Facts showing fraud or existence of warranty must be averred. —

    In an action of debt on a bond, a special plea was defective and was properly rejected which alleged that the bond was given for the price of goods which defendant bought of plaintiff, who represented that they were sound and marketable, when in fact they were unsound and damaged, and by reason thereof unsalable; but which did not aver a warranty of the quality of the goods, or that the plaintiff knew that the said representations made by him were untrue, or that he used any fraud or art to disguise or conceal their true condition or quality. But in such case a plea would be good which averred that the representations were untrue, and that the plaintiff at the time of making them knew them to be untrue, and knowingly made them with the intent to defraud the defendant, and which proceeded to set out the unsoundness of numerous articles purchased, and to detail particulars in which the representations had turned out to be untrue. Cunningham v. Smith, 51 Va. (10 Gratt.) 255, 1853 Va. LEXIS 45 (1853). But see Guarantee Co. of N. Am. v. First Nat'l Bank, 95 Va. 480 , 28 S.E. 909 , 1898 Va. LEXIS 4 (1898).

    But plea need not allege scienter. —

    A plea under this section is sufficient which avers that the statements of facts were falsely and fraudulently made for the purpose of procuring the contract, that they were material, that they were untrue, and that the defendant to whom they were made relied upon them, and was by them induced to enter into the contract, although it does not in its terms aver scienter. Strickland v. Graybill, 97 Va. 602 , 34 S.E. 475 , 1899 Va. LEXIS 76 (1899).

    It is immaterial that a plea under this section does not allege that the misrepresentations relied on were known by the plaintiff to be false. If a party innocently misrepresents a material fact by mistake, the effect is the same on the party who is misled by it as if he who innocently made the misrepresentation knew it to be positively false. Guarantee Co. of N. Am. v. First Nat'l Bank, 95 Va. 480 , 28 S.E. 909 , 1898 Va. LEXIS 4 (1898). But see Cunningham v. Smith, 51 Va. (10 Gratt.) 255, 1853 Va. LEXIS 45 (1853).

    It must allege worthlessness of property at time contract made. —

    A plea of special set-off under this section which sets up the worthlessness of property which formed the consideration of the contract in suit, must aver worthlessness at the time of the contract, and not at the date of the plea. South Roanoke Land Co. v. Roberts, 99 Va. 487 , 39 S.E. 133 , 1901 Va. LEXIS 68 (1901); Tyson v. Williamson, 96 Va. 636 , 32 S.E. 42 , 1899 Va. LEXIS 111 (1899).

    Allegation of unsoundness in general terms is sufficient. —

    In an action on a bond given for the price of personalty a special plea was good, which averred in general terms that the property was unsound at the time of the sale, and that the plaintiff knew the fact, and fraudulently concealed it from the defendant, and that upon discovering the fact the defendant offered to return the property and demanded a rescission of the contract, which plaintiff refused, laying the damages to the whole amount of the price, or not laying any damages, and praying for judgment in bar of the action. And if such a plea averred in general terms the unsoundness of the property, and then added a specific unsoundness, the defendant might under the plea prove any unsoundness, and he would not be confined to the specific unsoundness mentioned in the plea. Fleming v. Toler, 48 Va. (7 Gratt.) 310, 1851 Va. LEXIS 10 (1851).

    Plea held sufficiently certain and precise. —

    In an action upon a note the defendant pleaded failure of consideration, and sought by a special plea of setoff to be compensated in damages for breach of the contract on the part of the payee which was the main consideration for the note. It was objected that the plea did not set out the things alleged with sufficient precision and certainty. It was held that though there should be such precision and certainty, and the plea alleged both failure of consideration and fraud, yet in view of the circumstance that the plea was not filed after the first trial of the case, in which the defendant had fully developed in evidence all the details of the matters alleged in the plea, it was plain that the allegations were sufficiently precise. Wallinger v. Kelly, 136 Va. 547 , 117 S.E. 850 , 1923 Va. LEXIS 105 (1923).

    3.Appeal and Error.

    Surety alone cannot prosecute writ of error. —

    If in an action by a grantor against the grantee and his surety on a bond given for the purchase price of real estate, a joint plea is filed by principal and surety under this section, claiming damages for a breach of warranty of title, and the plea be found against the defendants, the surety cannot alone prosecute a writ of error. Kinzie v. Riely, 100 Va. 709 , 42 S.E. 872 , 1902 Va. LEXIS 78 (1902).

    Amount in controversy. —

    Where the full amount of a setoff allowed exceeds the jurisdictional amount, an appeal lies to the Supreme Court on behalf of the complainant, although the amount decreed against him is less than that sum. Bunting v. Cochran, 99 Va. 558 , 39 S.E. 229 , 1901 Va. LEXIS 78 (1901).

    CIRCUIT COURT OPINIONS

    Recoupment not available absent privity. —

    Affirmative defense of recoupment was not available to property owners who were resisting their obligation to pay homeowners’ association assessments on the grounds that they had been lied to by the original developers of the community; the association was the successor of the developers only to a limited extent, so privity was absent. Lake Holiday Country Club, Inc. v. Teets, 56 Va. Cir. 113, 2001 Va. Cir. LEXIS 447 (Frederick County Apr. 5, 2001).

    Recoupment defense proper. —

    Sellers’ motion to strike the buyer’s recoupment defense was unfounded in a suit arising out of a stock sale agreement because the recoupment plea, alleging misrepresentations by the sellers, both arose out of the same contract under which the sellers sought compensation and it may have entitled the buyer to relief against any obligation to the sellers. Rosenbloom v. Integrated Sec. Sys., 73 Va. Cir. 71, 2007 Va. Cir. LEXIS 50 (Fairfax County Mar. 12, 2007).

    Defense of set-off. —

    Complainant guarantor’s motion to strike respondent guarantor’s set-off defense to complainant’s action seeking contribution for settlement proceeds paid pursuant to a corporate loan default was granted, where respondent’s defenses were barred by the applicable three-year limitations period of either Virginia or Maryland law, as provided by the guarantee agreement and by the policy of § 8.01-247 ; although a plea of recoupment pursuant to § 8.01-422 was not subject to a statute of limitations defense, a plea of set-off was subject to such a defense. Williams v. Kinser, 64 Va. Cir. 128, 2004 Va. Cir. LEXIS 29 (Fairfax County Feb. 24, 2004).

    Availability of equitable relief. —

    While equitable defenses could be raised in any action on a contract, a loan company in its amended cross-bill requested a money judgment, not equitable relief. Thus, while the loan company was certainly guilty of unclean hands (it did not disclose finance charges, prepared a false insurance application, and required the borrower to submit false change of address forms, among other sharp practices), such transgressions did not prevent the loan company from suing for a breach of the loan. Commonwealth, State Lottery Dep’t v. Settlement Funding, L.L.C., 70 Va. Cir. 203, 2006 Va. Cir. LEXIS 46 (Fairfax County 2006), rev’d, on grounds that choice of law provision in the loan agreement should have been applied, 274 Va. 76 , 645 S.E.2d 436 (2007).

    § 8.01-423. When plaintiff claims as assignee or transferee.

    If the plaintiff claims as assignee or transferee under a person with whom the contract sued on was originally made, and the defendant’s claim exceeds the plaintiff’s demand, the defendant:

    1. In his counterclaim, may waive the benefit of his claim as to any excess beyond the plaintiff’s claim, whereupon, the further proceedings shall be upon the plaintiff’s claim and the defendant’s counterclaim as a defense thereto; or
    2. Instead of such waiver such defendant may, by rule issued by the court, to which rule shall be attached a copy of the counterclaim and served on the person, under whom plaintiff claims as aforesaid, make such person a party to the action; and, on the trial of the case, the jury shall ascertain and apply, the amount and interest to which the defendant is entitled; and, for any excess beyond the plaintiff’s demand for which such person under whom the plaintiff claims as aforesaid is liable, with such interest as the court or jury allows, judgment shall be rendered for the defendant against such person.

    History. Code 1950, § 8-246; 1954, c. 619; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-423 is former § 8-246 from which the phrase “or, on his application, issued by the clerk of the court in vacation” has been deleted from subsection 2 as being unnecessary. Other language changes have been made but the substance of this seldom-used statute has not been changed.

    Michie’s Jurisprudence.

    For related discussion, see 3C M.J. Commercial Law, § 33.

    Chapter 16. Compromises.

    § 8.01-424. Approval of compromises on behalf of persons under a disability in suits or actions to which they are parties.

    1. In any action or suit wherein a person under a disability is a party, the court in which the matter is pending shall have the power to approve and confirm a compromise of the matters in controversy on behalf of such party, including claims under the provisions of any liability insurance policy, if such compromise is deemed to be to the interest of the party. Any order or decree approving and confirming the compromise shall be binding upon such party, except that the same may be set aside for fraud.
    2. In case of damage to the person or property of a person under a disability, caused by the wrongful act, neglect or default of any person, when death did not ensue therefrom, any person or insurer interested in compromise of any claim for such damages, including any claim under the provisions of any liability insurance policy, may, upon motion to the court in which the action is pending for the recovery of damages on account of such injury, or if no such action is pending, then to any circuit court, move the court to approve the compromise. The court shall require the movant to give reasonable notice of such motion to all parties and to any person found by the court to be interested in the compromise.
    3. A compromise action involving a claim for wrongful death shall be in accordance with the applicable provisions of § 8.01-55 . Nothing in this section shall be construed to affect the provisions of § 8.01-76 .
    4. In any compromise action the court shall direct the payment of the proceeds of the compromise agreement, when approved, as follows:
      1. Payment of the sum into court as provided by § 8.01-600 or to the general receiver of such court;
      2. To a duly qualified fiduciary of the person under a disability, after due inquiry as to the adequacy of the bond of such fiduciary;
      3. As provided in § 8.01-606 ; or
      4. Where the agreement of settlement provides for payments to be made over a period of time in the future, whether such payments are lump sum, periodic, or a combination of both, the court shall approve the settlement only if it finds that all payments which are due to be made are (i) secured by a bond issued by an insurance company authorized to write such bonds in this Commonwealth or (ii) to be made or irrevocably guaranteed by an insurance company or companies authorized to do business in this Commonwealth and rated “A plus” (A+) or better by Best’s Insurance Reports. Payments made under this subdivision totaling not more than $4,000 in any calendar year may be paid in accordance with § 8.01-606 . Payments made under this subdivision, totaling more than $4,000 in any calendar year while the recipient is under a disability, shall be paid to a duly qualified fiduciary after due inquiry as to adequacy of the bond of such fiduciary.
    5. Payments made under this section, in the case of damage to the person or property of a minor, may be made payable in the discretion of the court to the parent or guardian of the minor to be held in trust for the benefit of the minor. Any such trust shall be subject to court approval and the court may provide for the termination of such trust at any time following attainment of majority which the court deems to be in the best interest of the minor. In an order authorizing the trust or additions to an existing trust the court may order that the trustee thereof be subject to the same duty to qualify in the clerk’s office and to file an inventory and annual accountings with the commissioner of accounts as would apply to a testamentary trustee.

    History. Code 1950, §§ 8-169, 8-170; 1956, c. 575; 1960, cc. 301, 302; 1964, c. 500; 1970, c. 10; 1977, c. 617; 1985, c. 499; 1988, c. 409; 1991, cc. 97, 257; 1993, c. 945; 1994, c. 39; 1998, cc. 584, 607, 610; 2009, c. 688.

    REVISERS’ NOTE

    Section 8.01-424 is a combination of former §§ 8-169 and 8-170.

    In the revision of former Title 8, the new phrase “person under a disability” has been adopted in most instances in lieu of such terms as “incompetent,” “incapacitated,” “insane,” or “infant”; this term, as defined, includes all persons unable to protect their property or legal rights regardless of the particular impairment.

    A substantial change in the new statute is the elimination of the right of an infant to attack an order of compromise within six months after reaching his majority. With the deletion of that provision, distinctions between infancy and other types of disabilities are no longer relevant.

    Former § 8-170 has been completely rewritten to simplify the procedure for compromising personal injury and property claims of persons under a disability. The provisions pertaining to the court wherein a motion for such a compromise is to be made have been changed. Section 8.01-424 provides that if an action to recover damages for injury to a person under a disability has been filed, the motion seeking approval of a compromise must be presented to the court in which that action is pending. However, if no such action has been brought, the motion may be made to any circuit court within the Commonwealth. Former § 8-170 required that such approval be obtained by the “court wherein an action might be brought.” The change thus reflected in § 8.01-424 is in conformity with the broadened venue provisions of chapter 5, and is premised on the likelihood that parties agreeing to a compromise will be able to agree upon a mutually convenient circuit court for approval of that compromise.

    In addition to the greater flexibility of the present section, the deletion of the provision making it unnecessary to make any person whose whereabouts are unknown a party to such proceedings affords increased protection to the interests of such person.

    The provisions incorporated in former § 8-170 dealing with procedures set forth in other sections of the Code have been retained in § 8.01-424 . See §§ 8.01-55 (Wrongful death compromise), 8.01-76 (Disposition of proceeds from sales of lands of persons under disabilities), 8.01-600 (Deposit of money under court’s control), 8.01-606 (Payment of small amounts to infants, etc.).

    Cross references.

    For provision as to rights of fiduciaries to compromise claims generally, see § 8.01-425 .

    The 2009 amendments.

    The 2009 amendment by c. 688, in subdivision D 4, in clause (ii), inserted “or irrevocably guaranteed” and deleted “which is” preceding “rated ‘A plus’.”

    Law Review.

    For comment, “The Covenant Not to Sue: Virginia’s Effort to Bury the Common Law Rule Regarding the Release of Joint Tortfeasors,” see 14 U. Rich. L. Rev. 809 (1980).

    For article, “The Duty to Settle,” see 76 Va. L. Rev. 1113 (1990).

    For 1991 survey on wills, trusts, and estates, see 25 U. Rich. L. Rev. 925 (1991).

    Michie’s Jurisprudence.

    For related discussion, see 4A M.J. Compromise and Settlement, § 13.

    CASE NOTES

    Power of court. —

    Explicitly, the statute gives the court power to approve a compromise. Implicitly, the court has the power under the statute to disapprove a compromise. However, neither the statute nor any “inherent” power the court may possess permits the court to create a settlement and then to impose such a settlement upon a guardian, and the trial court erred in forcing the guardian to accept hospital’s offer of settlement. Gunn v. Richmond Community Hosp., 235 Va. 282 , 367 S.E.2d 480, 4 Va. Law Rep. 2458, 1988 Va. LEXIS 59 (1988).

    A divorced mother with sole custody of a minor child has the right to compromise the child’s claim for damages tortiously inflicted. Sims v. VEPCO, 550 F.2d 929, 1977 U.S. App. LEXIS 10635 (4th Cir.), cert. denied, 431 U.S. 925, 97 S. Ct. 2199, 53 L. Ed. 2d 239, 1977 U.S. LEXIS 1890 (1977).

    Court’s duty not ended by settlement and stipulation of dismissal. —

    An incompetent person’s suit cannot be ended upon settlement followed by the filing of a stipulation of dismissal. It is only when a settlement occurs that the court’s duty to oversee the settlement arises. If that duty could be aborted by the filing of a stipulation, the role of the court would be effectively avoided. Neither law nor logic sanction such a result. Crawford v. Loving, 84 F.R.D. 80, 1979 U.S. Dist. LEXIS 9817 (E.D. Va. 1979).

    The court’s duty to oversee the settlement of claims asserted on behalf of incompetent persons cannot be abandoned simply because the parties assert, following a purported settlement, that they “no longer wish to litigate the matter further.” Crawford v. Loving, 84 F.R.D. 80, 1979 U.S. Dist. LEXIS 9817 (E.D. Va. 1979).

    The federal district court did not lose jurisdiction over a civil rights action on behalf of an incompetent against prison officials simply because the parties agreed to a settlement. Indeed, it was because there was a settlement that the matter was properly before the court for its approval. Crawford v. Loving, 84 F.R.D. 80, 1979 U.S. Dist. LEXIS 9817 (E.D. Va. 1979).

    CIRCUIT COURT OPINIONS

    Seal from public access. —

    Circuit court found that it could not seal settlement terms in infant settlement approvals because infant settlements were conditional pending judicial approval, the Virginia mediation confidentiality statute did not bind the court as it did not participate in the mediation, and infant settlements were not to be automatically sealed absent a particularized harm to a child from open records. Brown v. Tashman, 105 Va. Cir. 152, 2020 Va. Cir. LEXIS 54 (Fairfax County Apr. 21, 2020).

    § 8.01-424.1. Settlement of third-party action; deemed consent by employer.

    In any action or claim for damages by an employee, his personal representative, or other person against any person other than the employer, in which the employer has an interest pursuant to § 65.2-309 , where the employer fails to consent to an offer of settlement acceptable to the employee, his personal representative or other person, such person may petition the court where the action is pending for approval of the settlement. Where no action is pending, or such action is pending in a state other than Virginia, the petition may be filed in any circuit court in which venue will lie as to the employee pursuant to § 8.01-262 . The petition shall state the compromise, its terms, and the reason therefor. The court in which such petition is filed shall require the convening of the parties in interest in person or by an authorized representative. The parties in interest shall be deemed convened if twenty-one days notice of the hearing and proposed compromise was served pursuant to §§ 8.01-296 , 8.01-299 , 8.01-300 , 8.01-301 , or Rule 1:12 of the Rules of the Supreme Court of Virginia, as applicable. In the case of an insured employer, service shall also be made on the workers compensation insurer’s registered agent or counsel. During the twenty-one day notice period, the person making the settlement offer to the employee shall make himself reasonably available to answer questions under oath by the employee, employer, or employer’s workers compensation insurer concerning matters relating to such person’s financial condition that are known or reasonably available to such person.

    If the court determines that the settlement is fair and just to the parties in interest, it shall approve such settlement. In no event shall the court have jurisdiction to reduce or otherwise compromise the subrogation interest created pursuant to § 65.2-309 . The employer, if aggrieved by the court’s decision, may appeal. Should the employer’s appeal be denied or decided adversely to the employer, the employer shall pay interest at the judgment rate on the full settlement amount until the date of the denial of the appeal or date the final adverse decision is rendered against the employer. Should the settlement include periodic payments into the future, the value of the settlement amount, discounted to present value, shall be determined in calculating interest due from the employer. Once the decision is final and all appeals, if any, have been exhausted, and because the employer’s subrogation interest has not been compromised, the decision approving the settlement shall be deemed consent to the settlement by the employer.

    History. 2002, c. 751.

    § 8.01-425. How fiduciaries may compromise liabilities due to or from them.

    Any fiduciary may compromise any liability due to or from him, provided that such compromise be ratified and approved by a court of competent jurisdiction, all parties in interest being before such court by proper process. When such compromise shall have been so ratified and approved, it shall be binding on all parties in interest before such court. Nothing contained in this section shall affect the right of indemnity or of contribution among the parties.

    History. Code 1950, §§ 8-171, 8-173; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-425 is former § 8-171, without substantive change. The cautionary provision that nothing in the statute shall affect the right of indemnity or contribution is former § 8-173.

    Because joint stock companies are an enigma under current Virginia law, former § 8-172, the only section in the Code dealing with such organizations, has been deleted.

    Cross references.

    As to power of fiduciaries to submit to arbitration, see § 8.01-581 .

    Michie’s Jurisprudence.

    For related discussion, see 4A M.J. Compromise and Settlement, § 13.

    CASE NOTES

    This section does not require that, to be valid, compromises made by a fiduciary must be approved by a court; rather, the provisions of this section are permissive. Subsequent litigation of a compromise executed by a fiduciary without court approval may void the compromise as to some or all of the affected parties in interest; however, the compromise is not void at its inception, merely voidable under appropriate circumstances. Kelly v. R.S. Jones & Assocs., 242 Va. 79 , 406 S.E.2d 34, 7 Va. Law Rep. 2847, 1991 Va. LEXIS 117 (1991).

    § 8.01-425.1. Release of liability; right of rescission.

    When a claimant or plaintiff executes a release of liability as a condition of settlement in a claim or action for personal injury within thirty days of the incident giving rise to such claim, such claimant or plaintiff shall have a right of rescission until midnight of the third business day after the day on which the release was executed, provided that he was not represented by counsel when the release was executed, the rescission was made in writing to the person or persons being released, their representative or insurance carrier, and the claimant returns to the person or persons being released any check or settlement proceeds received by the claimant prior to the rescission. A release of liability executed within thirty days of the incident giving rise to the claim for personal injury by a person who is not represented by counsel shall contain a notice of the claimant’s or the plaintiff’s right to rescind conspicuously and separately stated on the release.

    History. 1999, c. 326; 2000, c. 839.

    The 2000 amendments.

    The 2000 amendment by c. 839 added the second sentence.

    CIRCUIT COURT OPINIONS

    Releases lacking rescission clauses are void. —

    Release that lacks a rescission clause as required is void. Crockett v. Waller-Smith, 63 Va. Cir. 562, 2004 Va. Cir. LEXIS 94 (Roanoke Jan. 15, 2004).

    Where plaintiff was unrepresented at the time the release at issue was executed, a rescission clause was required by this section. Crockett v. Waller-Smith, 63 Va. Cir. 562, 2004 Va. Cir. LEXIS 94 (Roanoke Jan. 15, 2004).

    Chapter 17. Judgments and Decrees Generally.

    Article 1. In General.

    § 8.01-426. “Judgment” includes decree.

    A decree for land or specific personal property, and a decree or order requiring the payment of money, shall have the effect of a judgment for such land, property, or money, and be embraced by the word “judgment,” where used in this chapter or in Chapters 18, 19 or 20 of this title or in Title 43; but a party may proceed to carry into execution a decree or order other than for the payment of money, as he might have done if this and the following section had not been enacted.

    History. Code 1950, § 8-343; 1977, c. 617; 2005, c. 681.

    Cross references.

    As to actions by the Commonwealth, see §§ 8.01-196 through 8.01-216 .

    As to confession of judgment, see § 8.01-431 et seq.

    As to executions of judgement, see § 8.01-466 et seq.

    As to records, recordation and indexing, see § 17.1-223 et seq.

    As to homestead exemptions as affecting this chapter, see §§ 34-24 , 34-25 .

    As to recordation of judgments affecting title to land, see § 55.1-649 .

    The 2005 amendments.

    The 2005 amendment by c. 681, effective January 1, 2006, deleted “in chancery” preceding “other.”

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, §§ 3, 50.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Satisfaction of monetary award granted under § 20-107.3 is governed by this section. Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364, 4 Va. Law Rep. 948, 1987 Va. App. LEXIS 237 (1987).

    Award of monetary sum under § 20-107.3 D equivalent to money judgment. —

    To the extent a decree awards a monetary sum pursuant to subsection D of § 20-107.3 , it is the equivalent of a money judgment and must be satisfied as such. The trial court may provide, however, that a monetary award be payable as a lump sum or in periodic fixed amounts. In either instance, the trial court may exercise its discretion in determining when the lump sum award or the periodic fixed amounts are due and payable. If no due date is specified in the decree, or if the award (or any portion thereof) is not satisfied by the payment date set forth in the decree, that award (or portion thereof) becomes the equivalent of a money judgment. Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364, 4 Va. Law Rep. 948, 1987 Va. App. LEXIS 237 (1987).

    Order pursuant to § 20-107.3 held to exceed courts authority. —

    The trial court exceeded its authority in ordering mandatory payment of the monetary award under subsection D of § 20-107.3 within 120 days. While it was authorized to fix a date upon which the award was due and payable, the trial court lacked authority to order mandatory payment subject to enforcement by its contempt powers. Brown v. Brown, 5 Va. App. 238, 361 S.E.2d 364, 4 Va. Law Rep. 948, 1987 Va. App. LEXIS 237 (1987).

    Order to pay sums due under separation agreement is “judgment” on which interest must accrue. —

    To the extent a trial court ordered a former husband to pay obligations imposed by the parties’ separation agreement, it had no discretion under § 8.01-382 to deny or postpone the accrual of postjudgment interest on those amounts. Whitney v. Whitney, 2007 Va. App. LEXIS 203 (Va. Ct. App. May 15, 2007).

    Collection of past due child support barred. —

    Finding against the father was inappropriate because the action to collect past due child support obligations, based upon the 1966 decree, was filed more than 20 years after any payments ordered by the decree became judgments by operation of law, and was barred pursuant to subsection A of § 8.01-251 . Adcock v. Commonwealth ex rel. Houchens, 282 Va. 383 , 719 S.E.2d 304, 2011 Va. LEXIS 223 (2011).

    II.Decisions Under Prior Law.

    Editor’s note.

    Only by force of our statute law can process of execution be sued out upon decrees in chancery. Windrum v. Parker, 29 Va. (2 Leigh) 361, 1830 Va. LEXIS 44 (1830); Shackelford v. Apperson, 47 Va. (6 Gratt.) 451, 1849 Va. LEXIS 68 (1849); Snavely v. Harkrader, 71 Va. (30 Gratt.) 487, 1878 Va. LEXIS 76 (1878).

    Decree in equity and order in mandamus are equally “judgments”. —

    A decree in an equity cause ordering the clerk to pay over money, and an order in a mandamus proceeding to compel the clerk to do so, were held to be “judgments” against the clerk within this section, and it was the clerk’s duty to issue execution thereon as required by § 8.01-466 . Rinehart & Dennis Co. v. McArthur, 123 Va. 556 , 96 S.E. 829 , 1918 Va. LEXIS 53 (1918).

    Person entitled to property or money is judgment creditor. —

    A decree for specific property, or requiring the payment of money, has the effect of a judgment, and persons entitled thereto are judgment creditors. Hutchison v. Grubbs, 80 Va. 251 , 1885 Va. LEXIS 62 (1885).

    Statute fixing lien of judgment applies to decrees. —

    Since a decree for money, by express enactment, is embraced by the word “judgment,” the statute fixing the lien of a judgment applies equally to such decrees. Hockman v. Hockman, 93 Va. 455 , 25 S.E. 534 , 1896 Va. LEXIS 96 (1896).

    And decree creates lien on lands. —

    A decree in chancery, equally with a judgment at law, creates a lien on lands. Haleys v. Williams, 28 Va. (1 Leigh) 140, 1829 Va. LEXIS 14 (1829); Withers v. Carter, 45 Va. (4 Gratt.) 407, 1848 Va. LEXIS 11 (1848); Burbridge v. Higgins, 47 Va. (6 Gratt.) 119, 1849 Va. LEXIS 27 (1849); Buchanan v. Clark, 51 Va. (10 Gratt.) 164 (1853); Lee v. Swepson, 75 Va. 173 (1881).

    This rule applies to decree for alimony. —

    A decree for alimony payable in monthly installments during the life of the beneficiary constitutes a lien in her favor upon the husband’s real estate from the date of the decree, not only for the installments presently due but for those that shall fall due under such decree in the future. Issacs v. Issacs, 117 Va. 730 , 86 S.E. 105 , 1915 Va. LEXIS 88 (1915) (see Morris v. Henry, 193 Va. 631 , 70 S.E.2d 417 (1952)).

    To decree for support of infant child. —

    See Morris v. Henry, 193 Va. 631 , 70 S.E.2d 417, 1952 Va. LEXIS 174 (1952).

    And to decree directing commissioner to pay money out of funds in his hands. —

    A commissioner made a sale under a decree, and received one-third of the purchase money, without giving bond as required. The sale was confirmed, and a decree entered and docketed, directing the commissioner, out of funds reported in his hands, to pay certain creditors therein. Five days later the commissioner conveyed in trust his own real estate to secure his own creditor. It was held that the decree against the commissioner had the effect of a judgment, and, the decree being docketed, the commissioner’s creditor was affected with notice thereof, though the purchaser paid the commissioner in his own wrong. Lee v. Swepson, 76 Va. 173 , 1882 Va. LEXIS 15 (1882).

    An alimony decree is not a mere money decree within the meaning of this section and § 8.01-427 , under which courts of equity do not have power to enforce decrees for the payment of money by process of contempt, and the same principles apply to an award for counsel fees and suit money. Eddens v. Eddens, 188 Va. 511 , 50 S.E.2d 397, 1948 Va. LEXIS 185 (1948).

    Any execution which may be taken upon a judgment may be taken upon a decree. Tate v. Liggat, 29 Va. (2 Leigh) 84, 1830 Va. LEXIS 13 (1830).

    This section gives courts of chancery the power to superintend the issuing of executions on their own decrees, and the power to correct irregularities and abuses therein, to the same extent, and by the same means, as courts of law. Windrum v. Parker, 29 Va. (2 Leigh) 361, 1830 Va. LEXIS 44 (1830); Snavely v. Harkrader, 71 Va. (30 Gratt.) 487, 1878 Va. LEXIS 76 (1878).

    And to quash executions irregularly sued out. —

    Courts of chancery may quash executions irregularly sued out on their decrees. Windrum v. Parker, 29 Va. (2 Leigh) 361, 1830 Va. LEXIS 44 (1830).

    OPINIONS OF THE ATTORNEY GENERAL

    Collection of unpaid tolls. —

    A Commonwealth’s Attorney may collect civil penalties, unpaid tolls, and administrative fees awarded to a private toll facility operator under § 46.2-819.3:1, but is not obligated to do so. A court is not authorized to compel a Commonwealth’s Attorney to undertake such a discretionary act, nor to undertake collection of such a monetary judgment on its own initiative. See opinion of Attorney General to Honorable Stephen E. Heretick, Member, Virginia House of Delegates, 18-021, (6/28/19).

    § 8.01-427. Persons entitled under decree deemed judgment creditors; execution on decree.

    The persons entitled to the benefit of any decree or order requiring the payment of money shall be deemed judgment creditors, although the money be required to be paid into a court, or a bank, or other place of deposit. In such case, an execution on the decree or order shall make such recital thereof, and of the parties to it, as may be necessary to identify the case; and if a time be specified in the decree or order within which the payment is to be made, the execution shall not issue until the expiration of that time.

    History. Code 1950, § 8-344; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-347 (When judgment by default on scire facias to become final) has been deleted. See § 8.01-251 .

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 50.

    CASE NOTES

    Every execution should conform accurately to the judgment or decree which it is used to enforce. Beale's Adm'r v. Botetourt Justices, 51 Va. (10 Gratt.) 278, 1853 Va. LEXIS 49 (1853); O'Bannon v. Saunders, 65 Va. (24 Gratt.) 138, 1873 Va. LEXIS 9 (1873); Snavely v. Harkrader, 71 Va. (30 Gratt.) 487, 1878 Va. LEXIS 76 (1878) (decided under prior law).

    § 8.01-427.1. Repealed by Acts 1978, c. 426, effective March 31, 1978.

    § 8.01-428. Setting aside default judgments; clerical mistakes; independent actions to relieve party from judgment or proceedings; grounds and time limitations.

    1. Default judgments and decrees pro confesso; summary procedure. —  Upon motion of the plaintiff or judgment debtor and after reasonable notice to the opposite party, his attorney of record or other agent, the court may set aside a judgment by default or a decree pro confesso upon the following grounds: (i) fraud on the court, (ii) a void judgment, (iii) on proof of an accord and satisfaction, or (iv) on proof that the defendant was, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. § 3911. Such motion on the ground of fraud on the court shall be made within two years from the date of the judgment or decree.
    2. Clerical mistakes. —  Clerical mistakes in all judgments or other parts of the record and errors therein arising from oversight or from an inadvertent omission may be corrected by the court at any time on its own initiative or upon the motion of any party and after such notice, as the court may order. During the pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending such mistakes may be corrected with leave of the appellate court.
    3. Failure to notify party or counsel of final order. —  If counsel, or a party not represented by counsel, who is not in default in a circuit court is not notified by any means of the entry of a final order and the circuit court is satisfied that such lack of notice (i) did not result from a failure to exercise due diligence on the part of that party and (ii) denied that party an opportunity to pursue post-trial relief in the circuit court or to file an appeal therefrom, the circuit court may, within 60 days of the entry of such order, modify, vacate, or suspend the order or grant the party leave to appeal. Where the circuit court grants the party leave to appeal, the computation of time for noting and perfecting an appeal shall run from the entry of such order, and such order shall have no other effect.
    4. Other judgments or proceedings. —  This section does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or proceeding, or to grant relief to a defendant not served with process as provided in § 8.01-322 , or to set aside a judgment or decree for fraud upon the court.
    5. Nothing in this section shall constitute grounds to set aside an otherwise valid default judgment against a defendant who was not, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. § 3911.

    History. 1977, c. 617; 1991, c. 39; 1993, c. 951; 2005, cc. 333, 909.

    REVISERS’ NOTE

    Section 8.01-428 is an adaptation of FRCP 55 and 60 and replaces former § 8-348, which has been deemed unclear (Federal Realty v. Litterio & Co., 213 Va. 3 , 189 S.E.2d 314 (1972)). The time limitation for setting aside a default judgment or decree pro confesso on the ground of fraud on the court has been reduced from three to two years. No limitation period is provided when the ground is a void judgment or an accord and satisfaction. (See § 8.01-428 A.) In addition, no time limitation is proposed for the grounds set forth in § 8.01-428 B. and C.

    A court’s inherent equity power to entertain an independent action to relieve a party from any judgment has been preserved.

    Cross references.

    As to grant of new trial from judgment of general district court, see § 16.1-97.1 .

    As to complaints to impeach or establish a will, see § 64.2-448 .

    Editor’s note.

    At the direction of the Virginia Code Commission, “a servicemember as defined in 50 U.S.C. § 3911” was substituted for “a person in the military service of the United States for purposes of 50 U.S.C. app. § 502” in subsection A and “a servicemember as defined in 50 U.S.C. § 3911” was substituted for “a servicemember for purposes of 50 U.S.C. app. § 502” in subsection E to conform to amendments by Acts 2016, c. 643.

    The 2005 amendments.

    The 2005 amendment by c. 333, in subsection C, inserted “to pursue post-trial relief in the circuit court or” and “modify, vacate, or suspend the order or” in clause (ii); and added “Where the circuit court grants the party leave to appeal” at the beginning of the last sentence; and made a minor stylistic change.

    The 2005 amendment by c. 909 added clause (iv) in subsection A, added subsection E, and made a minor stylistic change.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1974-1975, see 61 Va. L. Rev. 1799 (1975).

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For note, “Untangling the Safety Net: Protecting Federal Benefits from Freezes, Fees, and Garnishment,” see 66 Wash. & Lee L. Rev. 371 (2009).

    For annual survey of Virginia law article, “Criminal Law and Procedure,” see 47 U. Rich. L. Rev. 143 (2012).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, § 252.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Purpose of subsection A. —

    The object of subsection A., apparent on its face, is to grant a summary procedure for relief from judgments which are subject to one of the three specific defects mentioned in the statute. McEwen Lumber Co. v. Lipscomb Bros. Lumber Co., 234 Va. 243 , 360 S.E.2d 845, 4 Va. Law Rep. 850, 1987 Va. LEXIS 234 (1987).

    Section narrowly construed. —

    This section and its predecessors, which create exceptions to the finality of judgments, is narrowly construed. McEwen Lumber Co. v. Lipscomb Bros. Lumber Co., 234 Va. 243 , 360 S.E.2d 845, 4 Va. Law Rep. 850, 1987 Va. LEXIS 234 (1987).

    Section not limited to civil proceedings. —

    While predecessor statutes may have been intended to apply only in civil proceedings, the language of this section evidences no such restrictive intent. Lamb v. Commonwealth, 222 Va. 161 , 279 S.E.2d 389, 1981 Va. LEXIS 285 (1981).

    Authority of court. —

    This section covers more than errors committed by court clerks; it authorizes a court to correct its own errors and omissions. Hunter v. Commonwealth, 23 Va. App. 306, 477 S.E.2d 1, 1996 Va. App. LEXIS 658 (1996).

    Amendment of record only to reflect action actually taken. —

    The power to amend should not be confounded with the power to create; while the power to amend is inherent in the court, it is restricted to placing upon the record evidence of judicial action that has actually been taken and presupposes action taken at the proper time. Patterson v. Fauquier County Dep't of Social Servs., 2001 Va. App. LEXIS 144 (Va. Ct. App. Mar. 20, 2001).

    Subsection B authorizes a trial judge to correct the judge’s own errors and omissions. Coleman v. Commonwealth ex rel. Hutcherson, 2000 Va. App. LEXIS 291 (Va. Ct. App. Apr. 25, 2000).

    Written order modified to conform to oral statement of sentence. —

    Trial court did not abuse its discretion when it entered a nunc pro tunc order correcting a sentencing order it entered three years earlier where the transcript of the sentencing hearing established that the trial court had stated that a term for a suspension of sentence would be five years but the written order failed to include a specific term for the suspension. Hopkins v. Commonwealth, 2013 Va. App. LEXIS 105 (Va. Ct. App. Apr. 2, 2013).

    Order failing to set forth grounds for changes ineffective. —

    An order apparently intended to correct an error in a prior order that sets forth no basis for concluding that the changes resulted from previous inadvertence or oversight, as distinguished from a change of mind or a perceived adjudicatory error, is ineffective to modify the prior order. Thompson v. Commonwealth, 2000 Va. App. LEXIS 226 (Va. Ct. App. Mar. 28, 2000).

    Effect of Rule 1:1. —

    Supreme Court Rule 1:1 was not intended to limit, and in fact could not limit, the trial court’s statutory authority to correct clerical errors in the judgment or errors therein arising from oversight or from an inadvertent omission at any time. Dorn v. Dorn, 222 Va. 288 , 279 S.E.2d 393, 1981 Va. LEXIS 303 (1981).

    The power conferred by this section is not limited by Rule 1:1, but is confined to “the rare situation where the evidence clearly supports the conclusion that an error covered by this Code section has been made.” Dixon v. Pugh, No. 1647-90-2 (Ct. of Appeals Aug. 13, 1991).

    The order in which the trial judge ruled that the husband was entitled to a credit was entered more than two years after entry of the final decree. In the absence of an exception to Rule 1:1, the trial judge lost jurisdiction over the case twenty-one days after the initial judgment, and he could not issue a valid modification order. Decker v. Decker, 22 Va. App. 486, 471 S.E.2d 775, 1996 Va. App. LEXIS 410 (1996).

    A nunc pro tunc order correcting a clerical error can be entered after twenty-one days from entry of the final order without violating Rule 1:1. A trial court may enter an order nunc pro tunc to reflect judicial action that was, in fact, taken or to correct defects or omissions in the record so as to make the record conform to actual prior events. Coleman v. Commonwealth ex rel. Hutcherson, 2000 Va. App. LEXIS 291 (Va. Ct. App. Apr. 25, 2000).

    Subsections B and C distinguished. —

    Section 8.01-428 B does not provide the trial court with authority to vacate and reenter a final decree for the sole purpose of extending the filing deadline upon the realization that the parties were not timely notified of the decree’s entry. The authority and procedure to extend the filing deadline, where lack of notice is the issue, is provided only under § 8.01-428 C. Zhou v. Zhou, 38 Va. App. 126, 562 S.E.2d 336, 2002 Va. App. LEXIS 227 (2002).

    Husband’s contention, with which the trial court agreed, that the fact that divorce decree had inadvertently not been filed in the court’s file in the clerk’s office after entry, leading to failure to timely notify husband of the decree’s entry, constituted a “clerical mistake” within the purview of § 8.01-428 B, was without merit. Rather, a filing error committed by the clerk’s office, which affects notice to the parties and their right to appeal, comes directly within the purview of § 8.01-428 C. Zhou v. Zhou, 38 Va. App. 126, 562 S.E.2d 336, 2002 Va. App. LEXIS 227 (2002).

    Scope of subsection B. —

    Although subsection B of this section is entitled “Clerical mistakes,” the text includes other errors in the record “arising from oversight or from an inadvertent omission.” Thus, the language of this section clearly is broad enough to cover more than errors committed by the clerk or one of the clerk’s employees. Lamb v. Commonwealth, 222 Va. 161 , 279 S.E.2d 389, 1981 Va. LEXIS 285 (1981).

    The word “clerical” in subsection B is not limited by the identity of the person who made the mistake. Lamb v. Commonwealth, 222 Va. 161 , 279 S.E.2d 389, 1981 Va. LEXIS 285 (1981).

    This section is sufficiently comprehensive to authorize the correction of an inadvertent error in a transcript made by a court reporter. Lamb v. Commonwealth, 222 Va. 161 , 279 S.E.2d 389, 1981 Va. LEXIS 285 (1981).

    Subsection B confers upon a court the power to correct on its own initiative clerical mistakes in judgments which arise from oversight or inadvertent omission. However, to invoke such authority the evidence must clearly support the conclusion that an error of oversight or inadvertence has been made. Cass v. Lassiter, 2 Va. App. 273, 343 S.E.2d 470, 1986 Va. App. LEXIS 268 (1986).

    The trial court has the inherent power, independent of statutory authority, to correct errors in the record so as to cause its acts and proceedings to be set forth correctly. Davis v. Mullins, 251 Va. 141 , 466 S.E.2d 90, 1996 Va. LEXIS 17 (1996).

    While there may have been mistakes made by client’s counsel in suggesting a modification which worked to client’s disadvantage, it was not the kind of clerical mistake which may be corrected under subsection B of this section. This was not a scrivener’s error, or an error which is demonstrably contradicted by all other written documents. In fact, the evidence demonstrated that the modification to the consent decree was not an act of oversight or inadvertent omission as required in the statute, but was instead a deliberate revision. Keough v. Pelletieri, No. 0914-95-4 (Ct. of Appeals Oct. 31, 1995).

    A clerical mistake or error as contemplated by subsection B must be apparent from the record; this subsection does not give the court the authority to hear new evidence or to elaborate on its original decree. Hart v. Hart, 35 Va. App. 221, 544 S.E.2d 366, 2001 Va. App. LEXIS 166 (2001).

    In revoking defendant’s suspended sentences, the trial court erred in computing time available for revocation, and failed to give proper credit for time defendant served on earlier revocations; thus, case was remanded to correct clerical error. Wright v. Commonwealth, 2002 Va. App. LEXIS 652 (Va. Ct. App. Oct. 29, 2002).

    Trial judge’s failure to include a reference to § 18.2-108 on the final conviction order amounted to a clerical error, which while an appeal was pending, the trial court could correct with leave of the appellate court, pursuant to subsection B. Enevoldsen v. Commonwealth, 2004 Va. App. LEXIS 400 (Va. Ct. App. Aug. 24, 2004).

    Trial court was not authorized under subsection B to substitute the word “their” for “his” in a section of a property settlement agreement, as there was no evidence to suggest a meeting of the minds over the wife’s relinquishment of her interest in a business. The evidence did not support the husband’s contention that a clerical error was made. Chasen v. Chasen, 2008 Va. App. LEXIS 243 (Va. Ct. App. May 20, 2008).

    Because a father’s obligation to pay the mother’s attorneys’ fees resulting from a contempt violation of a visitation order qualified under the “domestic support obligation” exception to discharge pursuant to 11 U.S.C.S. § 523(a)(5), the trial court properly found that such was not dischargeable in bankruptcy. But, the case was remanded for the limited purpose of correcting an apparent clerical error as to the amount of the attorney’s fees due, if appropriate. Marvin v. Marvin, 51 Va. App. 619, 659 S.E.2d 579, 2008 Va. App. LEXIS 186 (2008).

    Defendant’s appeal of his conviction for driving under the influence of alcohol was dismissed because the court of appeals did not have jurisdiction over the appeal of his conviction under Amherst County, Va., Code § 9.1, which was based upon an order correcting a sentencing order, since defendant failed to file a timely notice of appeal that named the proper prosecuting authority, and the sentencing order was the final appealable conviction order; the corrected order, which was entered pursuant to subsection B of § 8.01-428 , merely fixed a clerical error and clarified that defendant was convicted under the Amherst County Code, and subsection B of § 8.01-428 was a prescriptive statutory provision simply providing a mechanism to correct non-substantive errors in the record and neither enhanced nor diminished the jurisdiction of the court of appeals. Woody v. County of Amherst, 2010 Va. App. LEXIS 286 (Va. Ct. App. July 20, 2010).

    Subsection B did not apply because the Commonwealth failed to establish that the transcript was filed late due to a clerical error since it did not provide any explanation of the circuit court clerk’s delay in obtaining the transcript. Commonwealth v. Caballero, 2016 Va. App. LEXIS 174 (Va. Ct. App. May 24, 2016).

    Subsection B has no application to errors in the reasoning and conclusions of the court about contested matters. Therefore, where the error that defendant alleged to exist concerned the trial judge’s conclusion that a sentence of 30 years imprisonment with 15 years suspended was consistent with the plea agreement recitation of a “sentence not to exceed 15 years,” the alleged error concerned the trial judge’s reasoning about a contested matter and was not remedied by application of subsection B. D'Alessandro v. Commonwealth, 15 Va. App. 163, 423 S.E.2d 199, 9 Va. Law Rep. 384, 1992 Va. App. LEXIS 243 (1992).

    Subsection B has no application to errors in the reasoning and conclusions of the court about contested matters. Patterson v. Fauquier County Dep't of Social Servs., 2001 Va. App. LEXIS 144 (Va. Ct. App. Mar. 20, 2001).

    Subsection B does not apply when no evidence is submitted. —

    Where neither party in divorce action submitted any evidence of the value of real property submerged under a lake, or unique characteristics of the property relevant to distribution questions, this could not be characterized as a clerical error, and the judge pro tempore correctly ruled that there was a lack of jurisdiction to address apportionment of the underwater acreage. Hart v. Hart, 2003 Va. App. LEXIS 26 (Va. Ct. App. Jan. 28, 2003).

    Oversight was correctable under subsection B. —

    Error in entering an order that found a husband in contempt and imposed a previously-suspended attorney’s fees award, despite its variation from the announced ruling, was an “oversight” correctable by the application of subsection B of § 8.01-428 ; a wife conceded that original order, drafted by her counsel, was inconsistent with the oral ruling from the bench. Everett v. Everett, 2007 Va. App. LEXIS 472 (Va. Ct. App. Dec. 27, 2007).

    When, after defendant appealed defendant’s criminal conviction, defendant discovered that the proceedings during one day of defendant’s trial had not been transcribed and successfully moved the trial court to correct this error and include the missing transcript in the appellate record, it was error for the appellate court to decline to consider the missing transcript, due to the transcript not having been filed within the 60-day time limit in Va. Sup. Ct. R. 5A:8(a), because (1) a court reporter’s failure to transcribe the transcript was an “oversight,” under subsection B of § 8.01-428 , and (2) the trial court made the missing transcript part of the record before defendant’s petition for appeal was filed, while the trial court had jurisdiction, so the trial court’s order was authorized under Va. Sup. Ct. R. 5A:9, and Va. Sup. Ct. R. 5A:8(a) did not require defendant to move the appellate court for an extension of time, and the trial court’s authority to correct the record superseded Va. Sup. Ct. R. 5A:8(a). Belew v. Commonwealth, 284 Va. 173 , 726 S.E.2d 257, 2012 Va. LEXIS 137 (2012).

    No jurisdiction to correct errors during pendency of appeal without leave of appellate court. —

    Appellate court lacked jurisdiction over defendant’s appeal of his driving under the influence conviction because defendant’s notice of appeal listed the state as the prosecuting body when the city was prosecuting body, and defendant thus failed to join an indispensable party; under § 8.01-428 and Va. Sup. Ct. R. 1:1, the trial court lacked jurisdiction while the appeal was pending to enter an order purporting to show that the state was the prosecuting body, because the appellate court did not grant leave to correct errors and the order was entered more than 21 days after entry of final judgment. Thus, the trial court’s prior order, entered after a remand to correct errors, which stated that the city was the proper plaintiff, was valid. Roberson v. City of Va. Beach, 53 Va. App. 666, 674 S.E.2d 569, 2009 Va. App. LEXIS 153 (2009), aff'd, 279 Va. 396 , 689 S.E.2d 706, 2010 Va. LEXIS 38 (2010).

    Correction of clerical error. —

    Trial court did not err in correcting a clerical error in a spousal support arrearage and in awarding the obligor spouse a credit for a mathematical error when the spouse did not object to the miscalculation when it was made and the order with the alleged error was a final order that was affirmed on appeal. Deluca v. Deluca, 2019 Va. App. LEXIS 122 (Va. Ct. App. May 21, 2019).

    Circuit court did not err in revoking defendant’s suspended sentence and in transferring defendant from the Virginia Department of Juvenile Justice to Tennessee Department of Corrections custody because the court’s order of clarification to correct a ministerial error accurately reflected the court’s disposition from a review hearing and did not modify or change the ruling from more than 21 days earlier. The court did not abuse its discretion in entering the order because the evidentiary basis for correcting the record was clear and convincing. Martinez v. Commonwealth, 71 Va. App. 318, 836 S.E.2d 1, 2019 Va. App. LEXIS 285 (2019).

    Although statute providing clerical mistakes in all judgments and errors therein arising from oversight or from an inadvertent omission were correctable by the trial court at any time on its own initiative governed civil procedure, the statute was applicable to criminal proceedings. Kenan v. Commonwealth, 2020 Va. App. LEXIS 3 (Va. Ct. App. Jan. 7, 2020).

    Jurisdiction of court. —

    Circuit court had jurisdiction to resolve a former spouse’s claim of a scrivener’s error in a separation agreement resulting from a mutual mistake that was made more than twenty-one days after the divorce decree was entered. Lewis v. Lewis, 2016 Va. App. LEXIS 164 (Va. Ct. App. May 17, 2016).

    Authority of court. —

    Circuit court properly denied a father’s motion to correct the record because, by seeking to change his income used in the child support calculations, the father was asking the court to modify child support, the circuit court correctly informed the father that it did not have the authority to modify the support order at that time since the father had not filed a motion to modify support and more than 21 days had passed since the last support order, the circuit court could not recreate the father’s child support obligation because the father disagreed with the prior determinations of the Juvenile and Domestic Relations District Court and the circuit court, and there was no mistake or inadvertent omission. Grant v. Walters, 2018 Va. App. LEXIS 176 (Va. Ct. App. July 3, 2018).

    Court may presume inconsistencies to be unintentional absent reasonable explanation. —

    In the absence of any reasonable explanation as to why the parties might have intentionally altered the language of the in-court stipulation, the trial court may presume that any inconsistencies are unintentional and are within its authority to amend. Artis v. Artis, 10 Va. App. 356, 392 S.E.2d 504, 6 Va. Law Rep. 2449, 1990 Va. App. LEXIS 103 (1990).

    Subsection C does not create any new rights or remedies, but merely preserves a court’s inherent equity power to entertain an independent action. Charles v. Precision Tune, Inc., 243 Va. 313 , 414 S.E.2d 831, 8 Va. Law Rep. 2232, 1992 Va. LEXIS 20 (1992).

    Subsection C of this section must be given a narrow construction. This is so because judicial proceedings must have a certainty of result, and a high degree of finality must attach to judgments. Byrum v. Lowe & Gordon, Ltd., 225 Va. 362 , 302 S.E.2d 46, 1983 Va. LEXIS 229, cert. denied, 464 U.S. 961, 104 S. Ct. 394, 78 L. Ed. 2d 337, 1983 U.S. LEXIS 2266 (1983).

    Subsection C specifically preserves the long-recognized right to bring an independent action in equity to relieve a party from the detrimental consequences flowing from an earlier judgment which allegedly resulted from fraud on the court. Gulfstream Bldg. Ass'n v. Britt, 239 Va. 178 , 387 S.E.2d 488, 6 Va. Law Rep. 1140, 1990 Va. LEXIS 18 (1990).

    It is a fundamental principle of equity jurisprudence that a litigant who files an independent action in equity to set aside a judgment must be free of fault or neglect. Charles v. Precision Tune, Inc., 243 Va. 313 , 414 S.E.2d 831, 8 Va. Law Rep. 2232, 1992 Va. LEXIS 20 (1992).

    Independent action under subsection C. —

    Defendant may invoke the provision in subsection C, which provides that the section “does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or proceeding,” and seek relief from the default judgment only by instituting an “independent action,” not by a motion filed as part of the cause in which the judgment order was entered. Basile v. American Filter Serv., Inc., 231 Va. 34 , 340 S.E.2d 800, 1986 Va. LEXIS 160 (1986).

    The trial court’s inherent equity power to set aside the default judgment is properly exercised only in an independent proceeding initiated by a party seeking relief from a judgment. Basile v. American Filter Serv., Inc., 231 Va. 34 , 340 S.E.2d 800, 1986 Va. LEXIS 160 (1986).

    A party who suffers a default judgment and files an independent action may obtain relief only by proving all of the necessary elements, including fraud, accident, or mistake which prevented him from obtaining the benefit of his defense. Therefore, where evidence failed to establish any of those elements, trial court erred by setting aside the default judgment. Charles v. Precision Tune, Inc., 243 Va. 313 , 414 S.E.2d 831, 8 Va. Law Rep. 2232, 1992 Va. LEXIS 20 (1992).

    Mistake not clerical. —

    Denial of a husband’s motion to offset was proper as: (1) the only evidence before the trial court on the payment was that husband made the payment to the wife in error, in reliance upon and at the insistence of the wife’s attorney; (2) the husband failed to timely correct the mistake under Va. Sup. Ct. 1:1, and the trial court lacked jurisdiction to correct the error; and (3) the trial court could not have corrected the mistake under subsection B of § 8.01-428 as the mistake was not clerical, but was a failure by the husband to present evidence. Wright v. Wright, 2012 Va. App. LEXIS 120 (Va. Ct. App. Apr. 17, 2012).

    Subsection C (now subsection D) does not provide a court unlimited authority to set aside a judgment procured by fraud; it does not override the rule of finality of judgments or grant a court the authority to set aside what is, at most, a voidable judgment. Warren v. Pham, No. 0479-98-4 (Ct. of Appeals July 28, 1998).

    Vacation of decree to extend filing deadline held error. —

    Where neither party filed an appeal of divorce decree within 30 days of its entry, the trial court lacked authority to vacate its final decree in an effort to extend husband’s filing deadline due to lack of notice of entry of the decree. Zhou v. Zhou, 38 Va. App. 126, 562 S.E.2d 336, 2002 Va. App. LEXIS 227 (2002).

    Challenge to foreign judgment precluded by default. —

    Once a valid default judgment has been entered in a Virginia court in a proceeding to domesticate a foreign judgment, general rules applicable to challenges permitted in the domestication proceeding no longer apply. By suffering a default, the defendant in the domestication proceeding loses the opportunity to attack the foreign judgment upon which the Virginia proceeding is based. Washington v. Anderson, 236 Va. 316 , 373 S.E.2d 712, 5 Va. Law Rep. 921, 1988 Va. LEXIS 146 (1988).

    Reconsideration of sentencing order. —

    Defendant failed to show that this section granted the circuit court authority to reconsider the 2003 sentencing order more than twenty-one days after the entry of the final order. Thus, the circuit court did not abuse its discretion in denying defendant’s motion for a nunc pro tunc order to amend the prior sentencing order. Palmer v. Commonwealth, 2020 Va. App. LEXIS 97 (Va. Ct. App. Apr. 7, 2020).

    Judge’s misstatement regarding length of sentence. —

    Trial judge’s misstatement regarding the length of time defendant was ordered to serve in the penitentiary was an error covered by this section; therefore, she had the authority to correct her misstatement and resentence defendant in accordance with her original intention. Nelson v. Commonwealth, 12 Va. App. 835, 407 S.E.2d 326, 8 Va. Law Rep. 175, 1991 Va. App. LEXIS 162 (1991).

    Omission from equitable distribution award. —

    Omission of an annuity from the parties’ equitable distribution award was a clerical error subject to correction under the statute as the evidence supported the conclusion that an error of oversight or inadvertence was made. Quash v. Quash, 2002 Va. App. LEXIS 130 (Va. Ct. App. Mar. 5, 2002).

    Erroneous information given to counsel by the clerk’s staff over the telephone did not constitute a “clerical mistake” within the meaning of this section. School Bd. v. Caudill Rowlett Scott, Inc., 237 Va. 550 , 379 S.E.2d 319, 5 Va. Law Rep. 2276, 1989 Va. LEXIS 86 (1989).

    Court did not err in refusal to amend where counsel endorsed order. —

    Where order of November 1, 1985 did not conform to the stipulation that “ ‘wife did all the duties . . . as a mother and as a wife’ and instead held that wife ‘had made an equal contribution to the marriage, well being of the family, and to the acquisition, care and maintenance of the marital property,’ ” counsel’s endorsement of the order, and his stated reasons for so endorsing, sufficiently corroborated the wife’s explanation that the November 1 order reflected the intent of the stipulation; accordingly, the trial court did not err in refusing to amend. Artis v. Artis, 10 Va. App. 356, 392 S.E.2d 504, 6 Va. Law Rep. 2449, 1990 Va. App. LEXIS 103 (1990).

    Sufficient prima facie evidence of extrinsic fraud. —

    Where core of the husband’s claim was that his wife told him that the attorney she hired would represent both of their interests in divorce, and further, he alleged that because of the special relationship of trust between him and his wife, he relied on this statement and did not obtain his own legal counsel, the husband’s allegation that the wife’s misrepresentation precluded him from presenting his true case and rights to the court stated a prima facie claim of extrinsic fraud sufficient to withstand a demurrer. Zdanis v. Deely, Nos. 1078-94-4, 1689-94-4 (Ct. of Appeals May 9, 1995).

    Wife failed to establish fraud by husband sufficient to warrant setting aside final divorce decree. Cossu v. Cossu, 1999 Va. App. LEXIS 357 (Va. Ct. App. June 15, 1999).

    No lack of due diligence found. —

    Because a trucking company and its driver did not receive timely notice of the trial court’s order, and that lack of notice was not the result of their failure to exercise due diligence, the trial court did not err by adjusting the time for the trucking company and its driver to file a notice of appeal. Rose v. Jaques, 268 Va. 137 , 597 S.E.2d 64, 2004 Va. LEXIS 92 (2004).

    Defendant provided no evidence that it was free from fault or negligence. —

    Defendant argued that, although it did not know what happened to the amended motion for judgment, it had a system for handling such matters in place, and, consequently, its lack of knowledge as to why its system apparently did not work properly did not rise to the level of negligence or fault on its part. However, defendant had the burden to produce evidence showing that it was neither at fault nor negligent. Instead, the evidence recited above showed only that a system failed. It did not provide any showing as to how or why the system failed and thus provided no evidence that it was free from fault or negligence when it did not respond to plaintiff’s motion for judgment. Media Gen., Inc. v. Smith, 260 Va. 287 , 534 S.E.2d 733, 2000 Va. LEXIS 120 (2000).

    Invalid service of process. —

    Attorney’s motion to set aside judgment should have been granted because the former client’s attempted service of process on the attorney was invalid for not complying with § 8.01-329 regarding valid service on the Secretary of the Commonwealth on behalf of nonresidents; as a result, the trial court did not have personal jurisdiction over the attorney, the judgment entered against her was void, and it should have been set aside. O'Connell v. Bean, 263 Va. 176 , 556 S.E.2d 741, 2002 Va. LEXIS 1 (2002).

    Lack of signature on notice of appeal. —

    Notice of appeal by a coal company in a breach of contract case was invalid pursuant to Sup. Ct. R. 1A:4 where it was signed only by the coal company’s foreign counsel, and the defect in the signature was not curable as a clerical error pursuant to § 8.01-428 B, as the failure of the coal company’s Virginia counsel to append that counsel’s own signature to the notice of appeal was not the kind of clerical error contemplated by § 8.01-428 B. Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279 , 568 S.E.2d 671, 2002 Va. LEXIS 103 (2002).

    Reinstatement of case. —

    Trial court had jurisdiction to reinstate a divorce case in order to effectuate its prior orders as three years after the final decree was entered, the parties had not sold the marital realty, and the terms in the final decree did not comply with the terms included in an opinion letter; the trial court had jurisdiction as the issues contested by a husband relating to set-offs and the distribution of the sales proceeds from the properties were necessary determinations to effectuate the original order, and the factors responsible for the additional findings included the length of time that the properties remained unlisted and unsold, and the husband’s lack of cooperation in expediting the sales of the property. Brown v. Brown, 2007 Va. App. LEXIS 34 (Va. Ct. App. Feb. 6, 2007).

    Correction of clerical error did not reopen child support matter. —

    Father waived his arguments that the trial court erred in determining child support by not appealing the November 9, 2016, order because, after the expiration of 21 days, or by November 30, 2016, the child support order was final; pursuant to this statute, the July 12, 2017, amended order corrected a clerical mistake contained in the November 9, 2016, order; the father agreed that the November 9, 2016, order contained a clerical mistake; and the July 12, 2017, amended order did not reopen the child support matter. Potas v. Potas, 2017 Va. App. LEXIS 335 (Va. Ct. App. Dec. 27, 2017).

    B.Procedure.

    Procedure under subsections A and B differs from that under C. —

    Subsections A and B of this section speak of a motion, while subsection C of this section speaks of an independent action. Clearly, by using different terminology in different paragraphs of the same Code section, the General Assembly meant to provide for a different procedure under C than under A and B. This view is reinforced by the Revisers’ Note to this section which states that subsection C is meant to preserve “[a] court’s inherent equity power to entertain an independent action to relieve a party from any judgment . . . .” This view is further reinforced by an examination of the predecessor section of this section, former § 8-348, which provided for relief from a default judgment only upon motion. Byrum v. Lowe & Gordon, Ltd., 225 Va. 362 , 302 S.E.2d 46, 1983 Va. LEXIS 229, cert. denied, 464 U.S. 961, 104 S. Ct. 394, 78 L. Ed. 2d 337, 1983 U.S. LEXIS 2266 (1983).

    Subsection A affords a summary procedure for relief from judgments which are subject to three specific, gross defects. Subsection B contains a more liberal rule for the correction of clerical errors, matters of oversight, and inadvertent omissions. Subsection C applies to cases not mentioned in the two preceding subsections, in which the right to relief is less clear, or where the interests of third parties may be affected, and which therefore require the full opportunities for pleading, discovery, and presentation of evidence afforded by a plenary suit in equity. McEwen Lumber Co. v. Lipscomb Bros. Lumber Co., 234 Va. 243 , 360 S.E.2d 845, 4 Va. Law Rep. 850, 1987 Va. LEXIS 234 (1987).

    Supreme Court Rule 5:11 does not provide the exclusive procedure for correcting errors. Lamb v. Commonwealth, 222 Va. 161 , 279 S.E.2d 389, 1981 Va. LEXIS 285 (1981).

    But it provides the preferred procedure that should be used in all cases to correct transcripts. Lamb v. Commonwealth, 222 Va. 161 , 279 S.E.2d 389, 1981 Va. LEXIS 285 (1981).

    Circuit court empowered to correct mistake of district court records. —

    Once the district court records became part of the circuit court record, the circuit court was empowered to correct a clerical mistake in the district court proceedings on its own initiative, so long as the evidence clearly supported the court’s conclusion that an error of oversight or inadvertence had been made; moreover, the court was empowered to hold an evidentiary hearing in order to make this determination. Loving v. Commonwealth, No. 1563-88-4 (Ct. of Appeals May 22, 1990).

    All transcripts in the case were deemed properly filed and were made part of the record because the omission of the full transcripts was the result of a clerical mistake, and therefore the circuit court was empowered to correct the error. As no petition for appeal had yet been filed in the appellate court at the time the circuit court conducted its hearing to determined whether the transcripts had been omitted due to a clerical mistake the circuit court retained jurisdiction to make its decision. Secret v. Commonwealth, 2017 Va. App. LEXIS 38 (Va. Ct. App. Feb. 14, 2017), aff'd, 296 Va. 204 , 819 S.E.2d 234, 2018 Va. LEXIS 136 (2018).

    Provision limited to circuit court orders. —

    Trial court properly denied a father’s motion to modify the entry date of a custody and visitation order from a juvenile and domestic relations district court for lack of jurisdiction because subsection C of § 8.01-428 did not apply to juvenile and domestic relations district court orders; the language of subsection C of § 8.01-428 limited its application to circuit court orders. Eklund v. Eklund, 2011 Va. App. LEXIS 171 (Va. Ct. App. May 17, 2011).

    There is no time limit prescribed for making the correction under subsection B of this section. Lamb v. Commonwealth, 222 Va. 161 , 279 S.E.2d 389, 1981 Va. LEXIS 285 (1981).

    Correction after docketing of appeal. —

    Where a criminal appeal was docketed before an error in the trial transcript was discovered, correction could be made only with leave of the Supreme Court. Lamb v. Commonwealth, 222 Va. 161 , 279 S.E.2d 389, 1981 Va. LEXIS 285 (1981).

    Remand for correction. —

    Although the record clearly supported the conclusion that the word “Plaintiff” on a page of the final decree was a typographical error intended to refer to “Defendant,” the appellate court was unable to locate in the record on appeal an order granting a husband’s motion to correct the typographical error or a corrected order; accordingly, the appellate court remanded the matter to the trial court for the sole purpose of correcting the clerical error in the decree pursuant to subsection B of § 8.01-428 . Duke v. Duke, 2008 Va. App. LEXIS 258 (Va. Ct. App. May 27, 2008).

    Given the arguable ambiguity in the trial court’s ruling on a husband’s retirement account, the issue was remanded pursuant to subsection B of § 8.01-428 solely for a determination as to whether the order should be clarified or any clerical inadvertent omission in the order should be corrected. Walker v. Walker, 2013 Va. App. LEXIS 156 (Va. Ct. App. May 21, 2013).

    Remand for clarification. —

    After determining that defendant’s conviction and sentence violated double jeopardy, the case was remanded to the trial court clarification of the action it took at sentencing with regard to suspended time because defendant’s convictions were for identical offenses, but due to the language of the sentencing order, the court of appeals was unable to discern from the record, due to the way the suspended time was pronounced, whether the punishments were identical. Saunders v. Commonwealth, 2017 Va. App. LEXIS 273 (Va. Ct. App. Oct. 31, 2017).

    Untimely appeal. —

    Appellate court concluded that the city circuit court erred in interpreting § 8.01-428 (B) to extend a father’s ten-day appeal deadline from the juvenile and domestic relations court, and that the circuit court never acquired jurisdiction over the father’s untimely appeal. Hill v. Hill, 2021 Va. App. LEXIS 208 (Va. Ct. App. Nov. 16, 2021).

    Laches. —

    Where a debtor objected to a claim filed by a creditor, relating to a nine-year-old judgment confirming an arbitration award, which was allegedly obtained through fraud, creditor was entitled to summary judgment because the objection was time barred; even if the objection were treated as an independent action to set aside a judgment procured by fraud, which did not have a specific limitation period, the objection was barred by laches because the debtor made no showing that he acted with reasonable diligence to discover the fraud. Ben-Ami v. Katz, 348 Bankr. 320, 2006 Bankr. LEXIS 1960 (Bankr. E.D. Va. 2006).

    Insufficient findings. —

    Trial court’s judgment vacating a default decree in an action filed pursuant to subsection D of § 8.01-428 was reversed because the court did not articulate a sufficient finding of cause to support the judgment; the trial court did not articulate its consideration of or findings with regard to such elements as the absence of an adequate remedy at law, whether the corporation had a good defense to the underlying cause of action, and whether the corporation was free of fault or negligence in the failure to receive the notice. Va. Polytechnic Inst. & State Univ. v. Prosper Fin. Inc., 284 Va. 474 , 732 S.E.2d 246, 2012 Va. LEXIS 163 (2012).

    C.Relief.

    Court may enter order nunc pro tunc. —

    Supreme Court Rule 1:1 or Richardson v. Moore , 217 Va. 422 , 229 S.E.2d 864 (1976), does not preclude a trial court, under subsection B of this section, from correcting, nunc pro tunc, a mutually unintended drafting error contained in a divorce decree. Dorn v. Dorn, 222 Va. 288 , 279 S.E.2d 393, 1981 Va. LEXIS 303 (1981).

    Subsection B of this section, unlike § 20-108 , gives courts the authority to enter nunc pro tunc orders modifying support obligations in the rare situation where the evidence clearly supports the conclusion that an error covered by subsection B has been made. Dorn v. Dorn, 222 Va. 288 , 279 S.E.2d 393, 1981 Va. LEXIS 303 (1981).

    Where the failure to enter a timely order was due to attorney error and, without the order, the record did not fully or accurately set forth the appropriate rulings of the trial court, the attorney’s omission qualified as a “clerical error” that could be rectified by the court nunc pro tunc. Patterson v. Fauquier County Dep't of Social Servs., 2001 Va. App. LEXIS 144 (Va. Ct. App. Mar. 20, 2001).

    Nunc pro tunc order may not remediate court error. —

    An order nunc pro tunc may not be created to remediate an error of the court or to reflect what the court should have done as distinguished from what actually occurred. Blackburn v. Commonwealth, No. 2166-96-3 (Ct. of Appeals Oct. 14, 1997).

    Nunc pro tunc entry can be made after expiration of the 21-day period in Supreme Court Rule 1:1, but that power can not be used to show what the court should have done as distinguished from what actually occurred; the court’s authority extends no further than the power to make the record entry speak the truth, and the nunc pro tunc power is reserved for the correction of clerical error only. A sentencing court abused its discretion by entering an order nunc pro tunc to correct an error that never existed where it entered an amended sentencing order beyond the 21-day period prescribed in Supreme Court Rule 1:1 and after the defendant was in the custody of the Department of Corrections. Ziats v. Commonwealth, 42 Va. App. 133, 590 S.E.2d 117, 2003 Va. App. LEXIS 701 (2003).

    An order entered nunc pro tunc cannot create a fiction that an act not yet performed has already occurred. Rather, the power of the trial court to amend by nunc pro tunc order is restricted to placing upon the record evidence of judicial action which has already been taken, but was earlier omitted or misstated in the record. Taylor v. Taylor, No. 2694-96-2 (Ct. of Appeals June 3, 1997).

    No authority to amend decree with nunc pro tunc order. —

    Trial court had no authority to amend decree by entering a nunc pro tunc order. A court’s statutory and inherent power to amend the record nunc pro tunc could not be used to acquire subject matter jurisdiction where the decree of spousal support failed to contain a clear and explicit reservation of jurisdiction. Dixon v. Pugh, 244 Va. 539 , 423 S.E.2d 169, 9 Va. Law Rep. 536, 1992 Va. LEXIS 162 (1992).

    Nunc pro tunc order valid. —

    Trial court properly exercised its nunc pro tunc power to correct its order denying defendant’s second motion to modify his sentence where: (1) the order suspending defendant’s sentence operated only pending a hearing on his motions, (2) it was clear that once the hearings were completed and defendant’s motions disposed of, the trial court intended for the original sentence to be reimposed, (3) once the trial court disposed of the motions to modify defendant’s sentence, the suspension order was lifted, under its plain language, and (4) the entry of the nunc pro tunc order reimposing the original sentence did nothing more than correct an inadvertent omission. Coe v. Commonwealth, 2004 Va. App. LEXIS 181 (Va. Ct. App. Mar. 2, 2004).

    Case was mature, and therefore “docketed,” when the record was filed in the office of the clerk of the appellate court; therefore, the trial court was not required to seek leave of the appellate court to correct an error in the record arising from oversight or from an inadvertent omission. Goodwin v. Flinn, 2012 Va. App. LEXIS 189 (Va. Ct. App. June 5, 2012).

    Court could correct an order nunc pro tunc where the record established that the trial court initially found wife in contempt, and that the order as originally drafted did not so reflect due to a clerical error. Goodwin v. Flinn, 2012 Va. App. LEXIS 189 (Va. Ct. App. June 5, 2012).

    Amended sentencing order was a nunc pro tunc order because it was only correcting a clerical error in the final order; thus, the trial court was authorized to enter the amended order despite the fact that more than twenty-one days had passed since it had entered the final order. Minor v. Commonwealth, 66 Va. App. 728, 791 S.E.2d 757, 2016 Va. App. LEXIS 298 (2016).

    Court of appeals lacked jurisdiction to consider defendant’s appeal from an order denying his motion to withdraw his guilty pleas because the trial court lacked jurisdiction to consider his motion since it did not reacquire plenary jurisdiction when it exercised its limited jurisdiction to enter a corrective sentencing order; the fact that the trial court was authorized to enter the amended order did not vest it with jurisdiction to do anything else regarding the case. Minor v. Commonwealth, 66 Va. App. 728, 791 S.E.2d 757, 2016 Va. App. LEXIS 298 (2016).

    Trial court did not err when it amended the qualifying court order for the husband’s military retirement and provided the wife the former spouse benefit of the survivor benefit plan where the wife filed the necessary motions, the clear intent at trial was to award the wife the survivor benefit plan, the omission was inadvertent, and the amendment was necessary to reflect what the parties had agreed to and the trial court’s ruling. Ruane v. Ruane, 2017 Va. App. LEXIS 266 (Va. Ct. App. Oct. 31, 2017).

    Nunc pro tunc order invalid. —

    Where neither defendant nor Commonwealth requested a continuance, and trial judge did not grant a continuance, rather the parties and trial judge agreed upon a date on which they would convene in order to schedule the case for trial, the trial judge’s entry of an order nunc pro tunc stating that the appellant moved for and was granted a continuance did not establish that a continuance was granted. The trial court attempted, after the fact, to establish that it had granted a continuance, when, in fact, the parties and the court merely agreed to a date on which they would schedule trial. Thus, the trial court’s order nunc pro tunc was invalid, and the Commonwealth failed to bring the appellant to trial within the period prescribed by § 19.2-243 . Blackburn v. Commonwealth, No. 2166-96-3 (Ct. of Appeals Oct. 14, 1997).

    Where case had been continued by agreement but no court entry upon the record reflected such a continuance, because trial court never considered a motion for a continuance and never ordered a continuance, there was no defect or omission in the record. Therefore, the trial court lacked authority to issue an order nunc pro tunc reciting that a continuance had been granted when in fact the court had not granted a motion for a continuance on the motion of or with the concurrence of the defendant. The nunc pro tunc order was thus invalid and could not bar appellant’s speedy trial claim. Blevins v. Commonwealth, No. 1264-96-3 (Ct. of Appeals Sept. 30, 1997).

    Trial court’s nunc pro tunc order provided no basis for concluding that changes made to earlier order resulted from previous inadvertence or oversight, as distinguished from a change of mind or perceived adjudicatory error, and therefore nunc pro tunc order was ineffective to modify earlier order. Thompson v. Commonwealth, No. 0330-99-3 (Ct. of Appeals Mar. 28, 2000).

    Because there were no § 8.01-428 errors in a trial court’s final order, which was consistent with the affirmative acts of the trial court and counsel, Va. Sup. Ct. R. 1:1 applied; consequently, a correction made more than 21 days after the entry of the final order, was of no force and effect. Morgan v. Russrand Triangle Assocs., Inc., 270 Va. 21 , 613 S.E.2d 589, 2005 Va. LEXIS 55 (2005).

    Default judgment obtained by misleading defendant into thinking a continuance had been agreed upon is fraudulent and should be set aside. National Airlines v. Shea, 223 Va. 578 , 292 S.E.2d 308, 1982 Va. LEXIS 241 (1982).

    Failure to answer due to attorney’s ethical obligations distinguished. —

    For purposes of setting aside a default judgment under § 8.01-428 D, a mistake that impacts on an attorney’s ethical responsibilities due to a conflict of interest is not akin to an attorney’s error about a filing deadline or the negligent failure to file a pleading by a certain date. Ryland v. Manor Care, Inc., 266 Va. 503 , 587 S.E.2d 515, 2003 Va. LEXIS 103 (2003).

    Five elements for vacating a default judgment weighed together. —

    Trial court’s finding that, in equity and good conscience, a default judgment should not be enforced does not carry more weight than the other four elements, all of which must be proven in order to obtain relief under § 8.01-428 D; the five elements for vacating a default judgment, taken together, reflect the balance that must be struck between the need to uphold the rules of court by sanctioning the late appearance of a party and the injustice that results from denying that party the opportunity to litigate a claim on its merits. Ryland v. Manor Care, Inc., 266 Va. 503 , 587 S.E.2d 515, 2003 Va. LEXIS 103 (2003).

    Grounds not shown to set aside default judgment. —

    Trial court did not err in denying the insurer and alleged tortfeasor’s motion to set aside the default judgment entered against them, as they did not show that a ground existed for setting it aside; they were both served with a notice for motion of judgment, they did not timely respond, the alleged tortfeasor was not defrauded when the employee of the injured motorist’s counsel allegedly told the tortfeasor that the insurance company would handle the matter, and they did not show that setting aside the judgment was warranted on any other ground. State Farm Mut. Auto. Ins. Co. v. Remley, 270 Va. 209 , 618 S.E.2d 316, 2005 Va. LEXIS 75 (2005).

    Trial court was authorized to correct a clerical error in its judgment and its doing so did not extend its jurisdiction over the injured motorist’s personal injury action against the tortfeasor following a collision between their vehicles; thus, the trial court did not err in declining to grant their motion to set aside the default judgment it entered against them after they did not timely respond to the motion for judgment she served on them, especially after they did not show a ground for setting it aside. State Farm Mut. Auto. Ins. Co. v. Remley, 270 Va. 209 , 618 S.E.2d 316, 2005 Va. LEXIS 75 (2005).

    Because some of a corporation’s claims on appeal from an order entering a default judgment against it, and refusing to set the same aside, were either not plead to the court below or were not supported by the record, which was incomplete on its face, the lower court’s orders were affirmed. Prince Seating Corp. v. Rabideau, 275 Va. 468 , 659 S.E.2d 305, 2008 Va. LEXIS 45 (2008).

    Circuit court did not abuse its discretion in denying a claimant’s motion to set aside a default judgment because the claimant had knowledge of the other motorist’s correct address when the claimant attempted to serve the complaint and summons on the motorist at a prior address, but the claimant, when questions regarding the validity of the service became apparent, used the proper address for service of additional pleadings in obtaining a default and final judgment asserting valid service of the complaint and summons. Sauder v. Ferguson, 289 Va. 449 , 771 S.E.2d 664, 2015 Va. LEXIS 45 (2015).

    Circuit court properly denied a wife’s motion to set aside the divorce decree because the court appropriately assessed all the evidence in determining whether “equity and good conscience” required enforcing the decree, whether the wife had a “good defense” to the divorce action, and whether there was “any adequate remedy at law,” the wife’s hostile attitude regarding the husband’s remarriage was relevant to her assertion that the husband did not use diligence in locating her, the evidence that the husband knew the wife’s address when he filed his affidavit to obtain service by publication was contested, and the husband was entitled to attorney’s fees and costs incurred on appeal since the wife’s appeal was without merit. Begum v. Shakhawat, 2019 Va. App. LEXIS 82 (Va. Ct. App. Apr. 9, 2019).

    A writ of prohibition will not lie where the proper resolution of the disputed issue depends upon matters of statutory interpretation that are not clear-cut, or upon a review of contested factual issues. In re McCarthy, No. 1116-87-4 (Ct. of Appeals Oct. 16, 1987).

    Garnishment not set aside on basis of accord and satisfaction between principal defendant and garnishee. —

    Subsection A. was not basis for setting aside judgment in garnishment on grounds that an accord and satisfaction had been entered into, where no contention was made that the plaintiff and garnishee had entered into an accord and satisfaction. Although principal defendant’s judgment against garnishee may have been the subject of an accord and satisfaction, plaintiff’s judgment alone was the subject of the proceeding below, and it was unimpaired by any of the defects mentioned in subsection A. McEwen Lumber Co. v. Lipscomb Bros. Lumber Co., 234 Va. 243 , 360 S.E.2d 845, 4 Va. Law Rep. 850, 1987 Va. LEXIS 234 (1987).

    Post-appeal conviction, sentencing order change not authorized. —

    Trial court’s power to correct clerical mistakes did not authorize it to enter post-appeal order changing conviction and sentencing orders entered 5 years before to reflect that defendant had been convicted under different section; those orders became final 21 days after their entry. The trial court’s order being a nullity, it was not an order from which an appeal to challenge defendant’s conviction could be brought anew. Myers v. Commonwealth, 26 Va. App. 544, 496 S.E.2d 80, 1998 Va. App. LEXIS 92 (1998).

    Trial court was proper forum to correct written sentencing order. —

    While subsection B of § 8.01-428 provided the remedy to correct a written sentencing order that did not reflect the actual sentence pronounced by the court, the claim was properly addressed to the trial court. Francis v. Commonwealth, 2008 Va. App. LEXIS 216 (Va. Ct. App. May 6, 2008).

    Divorce decree with irreconcilable inconsistencies. —

    Trial court had authority to alter divorce decree pursuant to § 8.01-428 ; since the decree contained irreconcilable inconsistencies, the trial court had clear and convincing evidence to support its finding of a clerical error justifying correction. White v. White, 38 Va. App. 389, 564 S.E.2d 700, 2002 Va. App. LEXIS 328 (2002).

    Case removed after dismissal. —

    Language of 28 U.S.C.S. § 1442 does not distinguish cases that have proceeded to judgment from cases that have not; therefore, in an asbestos case, removal under 28 U.S.C.S. § 1442(a)(1) of a dismissed case was allowed because the state court still had jurisdiction to modify at the time of removal under Va. Sup. Ct. R. 1:1. Because the federal court assumed the case in that posture, it was allowed to correct the state’s dismissal order to reflect the true intention of the parties. Holmes v. AC&S, Inc., 388 F. Supp. 2d 663, 2004 U.S. Dist. LEXIS 28566 (E.D. Va. 2004).

    Remand for correction of clerical error. —

    Although neither party raised an issue regarding an apparent clerical error in a sentencing order, the appellate court, based on the inconsistency between the trial court’s orders of different dates, remanded the case for correction of the apparent clerical error. Reinke v. Commonwealth, 51 Va. App. 357, 657 S.E.2d 805, 2008 Va. App. LEXIS 111 (2008).

    Final divorce decree was remanded to the trial court so that it could correct a clerical error and add the necessary language to dissolve the parties’ marriage under subsection B of § 8.01-428 as the decree failed to state that it adjudged, ordered and decreed that a husband was divorced from a wife; the decree’s statement that the parties were entitled to a divorce a vinculo matrimonii pursuant to subdivision 9 of § 20-91 upon the wife’s motion pursuant to § 20-121.02 was insufficient to dissolve the bonds of matrimony between the parties. Kramer v. Kramer, 2013 Va. App. LEXIS 48 (Va. Ct. App. Feb. 12, 2013).

    Matter was remanded to the trial court for entry of a nunc pro tunc order because the final divorce decree appeared to contain a clerical error; the parties requested a divorce (a vinculo matrimonii) not a legal separation (a mensa et thoro), and the final order granted a divorce pursuant to subdivision A 1 of § 20-91 on the ground of adultery. Garrett v. Garrett, 2017 Va. App. LEXIS 104 (Va. Ct. App. Apr. 18, 2017).

    Although the November 6, 2015, order referred to an excessive sentence of 20 years for defendant’s attempted murder conviction, that reference was a clerical error because, at the hearing preceding that order, the circuit court explained that it had misspoken at defendant’s original sentencing hearing and inadvertently interchanged the sentences for defendant’s malicious wounding and attempted murder convictions; and the circuit court then explained that it intended to impose the sentences of 20 years of incarceration with 10 years suspended for the malicious wounding conviction and 10 years of incarceration with five years suspended for the attempted murder conviction; the case was remanded to correct the clerical errors in that order. Boykins v. Commonwealth, 2017 Va. App. LEXIS 143 (Va. Ct. App. June 6, 2017).

    Error of clerk in marking date of filing. —

    Former employee’s motion to dismiss the employer’s appeal was denied, because the appeal was timely filed despite the fact that the clerk did not stamp the filing until the following day and the trial court prudently issued a correction based upon the employer’s evidence of a timely filing. Alexandria Redevelopment & Hous. Auth. v. Walker, 290 Va. 150 , 772 S.E.2d 297, 2015 Va. LEXIS 82 (2015).

    Jurisdiction over equitable distribution. —

    Divorce had been pending in the trial court for more than six years before husband raised the issue, and more than seven months after he took his nonsuit; there was no question that equitable distribution was an issue and the record supports the trial court’s conclusion that the wife’s statutory citation in her prayer for relief was a scrivener’s error and the trial court did not err in concluding that it had jurisdiction to decide equitable distribution. Starling v. Starling, 2013 Va. App. LEXIS 248 (Va. Ct. App. Sept. 10, 2013).

    Motion for delayed appeal properly denied. —

    Trial court did not err in denying a mother’s motion for filing of a delayed appeal from a judgment terminating her parental rights because the mother filed her motion well after the trial court’s jurisdiction under both Va. Sup. Ct. R. 5A:6 and § 8.01-428 C had elapsed, and the mother presented no other statutory exception to extend that jurisdiction. Butler v. City of Roanoke Dep't of Soc. Servs., 2008 Va. App. LEXIS 233 (Va. Ct. App. May 13, 2008).

    Appellant was not entitled to leave to appeal, because, while the circuit court agreed that there was an unreasonable delay in mailing appellant a final order, appellant was notified of the order as appellant’s counsel endorsed the final order in court, and should have expected that it was to be entered shortly thereafter. Furthermore, it did not appear that the circuit court relied on appellant’s failure to check the circuit court’s website in coming to its decision. Willett v. Lee, 2018 Va. App. LEXIS 259 (Va. Ct. App. Oct. 9, 2018).

    Extension proper. —

    In a case in which a competitor challenged the State Health Commissioner’s decision to issue a certificate of public need authorizing the applicant to relocate a medical radiation therapy service, the circuit court did not err in extending the competitor’s time to file its notice of appeal. Reston Hosp. Ctr., LLC v. Remley, 63 Va. App. 755, 763 S.E.2d 238, 2014 Va. App. LEXIS 331 (2014).

    Trial court did not err in granting a father an extension to file his appeal because the father did not receive notice of the order denying his motion to reconsider, the lack of notice was not a result of his failure to exercise due diligence, and the father would lose his right to appeal if the extension was not allowed; since the trial court stayed the order granting the mother’s motion to strike, the order denying the father’s motion to reconsider was the final order. Groo v. Burton, 2015 Va. App. LEXIS 244 (Va. Ct. App. Aug. 11, 2015).

    Trial court had jurisdiction to consider a father’s motion for an extension to file an appeal because the trial court acted within sixty days of its entry of the order denying the father’s motion to reconsider when it suspended that order. Groo v. Burton, 2015 Va. App. LEXIS 244 (Va. Ct. App. Aug. 11, 2015).

    D.Other Judgments or Proceedings.

    Motion filed as part of case is not “independent” action. —

    The revisor’s note appended to this section indicates that it was enacted to preserve the court’s inherent equity power to grant relief from the enforcement of a judgment in a proper case. However, a motion filed as a part of the case in which the judgment order was entered is not an “independent action” to relieve a party from a judgment under subsection C. McEwen Lumber Co. v. Lipscomb Bros. Lumber Co., 234 Va. 243 , 360 S.E.2d 845, 4 Va. Law Rep. 850, 1987 Va. LEXIS 234 (1987).

    As no order modifying, vacating, or suspending an August 2013 judgment was entered within 21 days thereafter, the trial court properly found in November and December 2013 that it had no jurisdiction to consider the adult day care center’s September 2013 motion to vacate and October 2013 emergency motion for injunctive relief; this exception to Va. Sup. Ct. R. 1:1 did not apply as neither the September nor the October motion was an independent action requesting relief based upon fraud. Sunrise Adult Day Care Ctr., LLC v. Commonwealth, 2014 Va. App. LEXIS 349 (Va. Ct. App. Oct. 21, 2014).

    Independent action not permitted. —

    In light of the trial court’s factual finding that the husband sought his share of the value of the painting rather than the painting itself, the husband’s case failed to meet the elements necessary to support an independent action under this section. Wagner v. Wagner, 2016 Va. App. LEXIS 257 (Va. Ct. App. Oct. 4, 2016).

    Defense to a contempt proceeding in a divorce case is not an independent action as contemplated by subsection C. Rook v. Rook, 233 Va. 92 , 353 S.E.2d 756, 3 Va. Law Rep. 1944, 1987 Va. LEXIS 174 (1987).

    Non-party may maintain suit if interest jeopardized by enforcement of judgment. —

    A non-party may maintain a suit to set aside an allegedly damaging judgment if he has an interest which is jeopardized by enforcement of the judgment and the circumstances support a present grant of relief. The right of the non-party must have existed at the time the judgment was rendered. Gulfstream Bldg. Ass'n v. Britt, 239 Va. 178 , 387 S.E.2d 488, 6 Va. Law Rep. 1140, 1990 Va. LEXIS 18 (1990).

    In a suit to set aside a judgment involving title to land, the prejudiced right or interest must have been in existence at the time of the judgment and have belonged either to the present claimant or to his predecessor in interest. Gulfstream Bldg. Ass'n v. Britt, 239 Va. 178 , 387 S.E.2d 488, 6 Va. Law Rep. 1140, 1990 Va. LEXIS 18 (1990).

    Fundamental unfairness of Virginia court’s child support order should have been challenged by defendant at entry and on direct appeal. Nonetheless, due process did require allowance of this subsequent challenge in federal court. United States v. Johnson, 114 F.3d 476, 1997 U.S. App. LEXIS 12460 (4th Cir.), cert. denied, 522 U.S. 904, 118 S. Ct. 258, 139 L. Ed. 2d 185, 1997 U.S. LEXIS 5968 (1997).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Former section constitutional. —

    The predecessor to this section was constitutional, being a statute passed in aid of judicial proceedings and which tended to their support by precluding parties from taking advantage of errors, apparent on the face of the proceedings, which did not affect their substantial rights. Such statutes are not regarded as an interference with judicial authority, but only in aid of judicial proceedings for the purpose of correcting errors, such as are mentioned in the statute. Ratcliffe v. Anderson, 72 Va. (31 Gratt.) 105, 1878 Va. LEXIS 31 (1878).

    The object of the legislature was to save the parties the delay and loss of an appeal to correct irregularities and formal errors, errors which seldom affect the merits of the controversy, and which would have been corrected at once by the court if pointed out. Davis v. Commonwealth, 57 Va. (16 Gratt.) 134, 1861 Va. LEXIS 1 (1861).

    Remedy is cumulative. —

    This statutory remedy is cumulative and has not superseded or abolished petitions for rehearing which may still be had according to the course of equity, in the same manner as before the enactment of the statute. Kendrick v. Whitney, 69 Va. (28 Gratt.) 646, 1877 Va. LEXIS 90 (1877).

    B.Procedure.

    Motion must be after notice to opposite party. —

    Every motion under this section must be after reasonable notice to the opposite party, his agent or attorney in fact or at law. Hill v. Bowyer, 59 Va. (18 Gratt.) 364, 1868 Va. LEXIS 18 (1868); Goolsby v. Strother, 62 Va. (21 Gratt.) 107, 1871 Va. LEXIS 76 (1871).

    But only reasonable notice is required. —

    The notice of the motion to reverse or correct is required to be only reasonable notice. This section does not contemplate the more formal, expensive, and dilatory proceedings, by bill and regular process. Ballard v. Whitlock, 59 Va. (18 Gratt.) 235, 1867 Va. LEXIS 35 (1867); Hill v. Bowyer, 59 Va. (18 Gratt.) 364, 1868 Va. LEXIS 18 (1868); Dillard v. Thornton, 70 Va. (29 Gratt.) 392, 1877 Va. LEXIS 30 (1877).

    It need not specify errors relied on. —

    The notice under this section need not specify the errors for which the court is asked to correct or reverse its judgment by default, or decree in a bill taken for confessed. Saunders v. Grigg, 81 Va. 506 , 1886 Va. LEXIS 119 (1886).

    Record must show error. —

    No motion to amend was made under this section, and if it had been it would not have availed the appellant, because there was nothing in the record to show that the trial court committed an error. Owen v. Owen, 157 Va. 580 , 162 S.E. 46 , 1932 Va. LEXIS 313 (1932).

    Method of seeking appellate review may be material. —

    In considering questions arising under this section, it would seem to be important to bear in mind whether review by the appellate court would be upon writ of error or upon an appeal. Craddock v. Craddock, 158 Va. 58 , 163 S.E. 387 , 1932 Va. LEXIS 240 (1932).

    C.Relief.

    This section provides for the correction of errors generally, on a judgment by default or bill taken for confessed, and for misprisions of the clerk, or clerical misprisions of the judge where the judgment may be safely corrected in the manner prescribed. Thompson v. Carpenter, 88 Va. 702 , 14 S.E. 181 , 1892 Va. LEXIS 21 (1892); Shipman v. Fletcher, 91 Va. 473 , 22 S.E. 458 , 1895 Va. LEXIS 44 (1895).

    It has no application to errors in the reasoning and conclusions of the court about contested matters. Thompson v. Carpenter, 88 Va. 702 , 14 S.E. 181 , 1892 Va. LEXIS 21 (1892); Shipman v. Fletcher, 91 Va. 473 , 22 S.E. 458 , 1895 Va. LEXIS 44 (1895); Safety Motor Transit Corp. v. Cunningham, 161 Va. 356 , 171 S.E. 432 , 1933 Va. LEXIS 325 (1933).

    It applies to all judgments when there has been no appearance. —

    All judgments of every character whether in common-law actions or on motions under some statute, when there has been no appearance by the defendant, are judgments by default within the meaning of this section. Brown v. Chapman, 90 Va. 174 , 17 S.E. 855 , 1893 Va. LEXIS 30 (1893); Staunton Perpetual Bldg. & Loan v. Haden, 92 Va. 201 , 23 S.E. 285 , 1895 Va. LEXIS 105 (1895).

    But if, the record shows appearance, judgment is not by default. —

    If the record merely shows an appearance by the party complaining, the judgment will not be treated as being by default, although he may neither demur nor plead, or it may appear that he withdrew all his pleas and defenses. Compton v. Cline, 46 Va. (5 Gratt.) 137, 1848 Va. LEXIS 34 (1848); Richardson v. Jones, 53 Va. (12 Gratt.) 53, 1855 Va. LEXIS 5 (1855); Goolsby v. Strother, 62 Va. (21 Gratt.) 107, 1871 Va. LEXIS 76 (1871).

    Trial court may correct clerical errors in decree. —

    Under this section as it formerly read, upon notice to the opposite party, his agent, or attorney-at-law or in-fact, the court wherein the decree is rendered, may on motion correct such decree as to any clerical error therein where there is sufficient in the record to enable the court to safely amend the same. Dillard v. Dillard, 77 Va. 820 , 1883 Va. LEXIS 116 (1883).

    Court may set aside judgment prematurely entered. —

    A judgment and award of execution upon a forfeited forthcoming bond having been entered by default upon a day prior to that to which notice was given, the court in which the judgment and award of execution was rendered has jurisdiction on the motion of the plaintiff to set aside the judgment and quash the execution, upon reasonable notice to the defendants. Ballard v. Whitlock, 59 Va. (18 Gratt.) 235, 1867 Va. LEXIS 35 (1867).

    Or judgment against a party not served with process. —

    A judgment against a party who was not served with process and against whom the suit had abated is void as to her but not as to her codefendants, as it is an error that can and should be corrected under this section. Manor v. Hindman, 123 Va. 767 , 97 S.E. 332 , 1918 Va. LEXIS 64 (1918).

    It may allow amendment of return to show proper service. —

    Where, under this section, defendant moves the judge in vacation to reverse a judgment by default upon a defective return of substituted service of the summons, and to remand the case for trial, the court may then allow the sheriff to amend his return so as to show a proper service, and dismiss the defendant’s motion. Stotz v. Collins & Co., 83 Va. 423 , 2 S.E. 737 , 1887 Va. LEXIS 87 (1887).

    Verdict may be put in approved form. —

    It is the duty of the trial courts to require the verdicts of juries to be put in approved form in order to effectuate their true intent and meaning, and hence, where the jury reported a verdict written upon a piece of paper in the following words: “We, the jury, find for the plaintiff and fix the damages due by the defendant to be twelve hundred dollars,” there was no error where the verdict was in open court, written upon the declaration and signed by the foreman in these words: “We, the jury, find for the plaintiff on the issues joined, and fix his damages at twelve hundred dollars.” Manor v. Hindman, 123 Va. 767 , 97 S.E. 332 , 1918 Va. LEXIS 64 (1918).

    And may reverse decree on bill not stating case for relief in equity. —

    Where a bill in equity does not state a case proper for relief in that forum, the court should dismiss it upon the hearing, and it was, therefore, error to dismiss the motion made under this section, where a decree on such a bill was taken for confessed. Graveley v. Graveley, 84 Va. 145 , 4 S.E. 218 , 1887 Va. LEXIS 15 (1887).

    Or where record does not show notice to take depositions given. —

    In a suit for divorce, in which the defendant did not appear until after the decree was rendered, the decree was properly set aside on the motion of the defendant, where the record failed to show that notices to take depositions were duly given. Craddock v. Craddock, 158 Va. 58 , 163 S.E. 387 , 1932 Va. LEXIS 240 (1932). But see Hill v. Bowyer, 59 Va. (18 Gratt.) 364, 1868 Va. LEXIS 18 (1868).

    When default judgment valid. —

    As a general proposition, a default judgment is valid if the trial court had territorial jurisdiction, subject-matter jurisdiction and if adequate notice has been given to the defaulting party. Landcraft Co. v. Kincaid, 220 Va. 865 , 263 S.E.2d 419, 1980 Va. LEXIS 178 (1980).

    Default judgment may be invalidated when the motion for judgment fails to state a cause of action; under such circumstances, that failure is held to disable the court from entering a valid default judgment. Landcraft Co. v. Kincaid, 220 Va. 865 , 263 S.E.2d 419, 1980 Va. LEXIS 178 (1980).

    Default judgment may be reversed. —

    A judgment by default obtained on substituted service may, under this section, be reversed by the trial court for any error for which an appellate court might reverse it. Such a judgment does not import a verity which cannot be attacked. Brame v. Nolen, 139 Va. 413 , 124 S.E. 299 , 1924 Va. LEXIS 119 (1924).

    Entry of default judgment as judgment by confession cannot be corrected. —

    A judgment by confession entered by mistake of the clerk instead of a judgment upon nil dicit, cannot be corrected at the next term of the court, under either this section or § 8.01-677 . Richardson v. Jones, 53 Va. (12 Gratt.) 53, 1855 Va. LEXIS 5 (1855).

    Nor can it be vacated. —

    If a court has no power to change a judgment by confession to one nil dicit, plainly it has no power to wipe it away. Nor is such power given by this section. New York Life Ins. Co. v. Barton, 166 Va. 426 , 186 S.E. 65 , 1936 Va. LEXIS 205 (1936).

    Error in amount of decree released. —

    Where an error in the amount of a decree is released according to this section, the appellate court will not reverse the decree on that account. Dickerson v. Clement, 87 Va. 41 , 12 S.E. 105 , 1890 Va. LEXIS 87 (1890).

    Court may enter order nunc pro tunc. —

    On an application to a trial court to correct a judgment by default, under the provisions of this section, it appeared that no order was entered by the court on the day to which a notice of a motion for a judgment was returnable, but that judgment by default was entered at a subsequent term. It was held that it was within the power and discretion of the court to enter an order nunc pro tunc docketing the motion and continuing it to the next term, and validating the judgment, as between the original parties and annexing a condition thereto that the judgment should not affect the rights of innocent third persons whose rights had accrued since the original judgment and before the nunc pro tunc order. Such an order, when made, is an entirety, and is not valid as to the judgment and void as to the condition. The two provisions are dependent on each other. Powers v. Carter Coal & Iron Co., 100 Va. 450 , 41 S.E. 867 , 1902 Va. LEXIS 44 (1902).

    Corrected judgment is valid. —

    Where the petition alleged that a note had been returned for taxation but, due to an omission of the clerk, the judgment did not show it, but the error was corrected under this section, after due notice, there was no merit in the contention that the judgment was void. Jayne v. Kane, 140 Va. 27 , 124 S.E. 247 , 1924 Va. LEXIS 154 (1924).

    Decree may be corrected on bill of review. —

    In a suit for the removal of a guardian and the settlement of his accounts, a final decree can be reheard after the term at which it is entered only upon motion under this section where the decree was on a bill taken for confessed, or on a bill of review. But as the practice in Virginia is liberal, touching mere forms of pleading, the court will regard petitions of a guardian and his surety, praying that such decree be reheard, vacated and set aside, as bills of review. Gills v. Gills, 126 Va. 526 , 101 S.E. 900 , 1920 Va. LEXIS 7 (1920).

    And original bill may be treated as motion under this section. —

    An original bill which seeks to correct errors in a decree by default apparent on its face, and also to set it aside on the ground of mistake and surprise, having been filed without leave, cannot be treated as a bill of review. But a copy of the original record being filed with the bill, the court may consider and correct any errors apparent in the face of the decree which may be corrected by the court under this section. Hill v. Bowyer, 59 Va. (18 Gratt.) 364, 1868 Va. LEXIS 18 (1868).

    But injunction will not issue where this section provides remedy. —

    An injunction will not be awarded to a judgment by default upon summons directed to sheriff of a county other than the one in which the action is brought; for although the summons was issued contrary to law, the judgment, though erroneous, is not void, and the defendant has a complete remedy at law under this section. Brown v. Chapman, 90 Va. 174 , 17 S.E. 855 , 1893 Va. LEXIS 30 (1893) (see Goolsby v. St. John, 66 Va. (25 Gratt.) 146 (1874)).

    When the court exceeds its jurisdiction in rendering a personal decree, injunction will not lie as the error may be corrected under this section. Preston v. Kindrick, 94 Va. 760 , 27 S.E. 588 , 1897 Va. LEXIS 137 (1897).

    Section gives no power to validate vacation judgments. —

    The object and purpose of this section is to correct errors of mistake, miscalculation or recital in judgments and decrees where matter appears in the record by which the correction may be safely made. It confers no power to give validity and force to vacation judgments and decrees which are void for want of power in the judge to render them. Wingfield v. McGhee, 108 Va. 120 , 60 S.E. 755 , 1908 Va. LEXIS 17 (1908).

    Correction of errors in commissioner’s report. —

    Where a final decree has been entered in a litigated case confirming the report of a commissioner, without exception or objection, the court will not reverse the decree, on motion under this section, for errors alleged in said report and not appearing on the face of it. Shipman v. Fletcher, 91 Va. 473 , 22 S.E. 458 , 1895 Va. LEXIS 44 (1895).

    In the absence of objection in the court below, that the commissioner had not regularly adjourned from time to time the taking of the accounts, an appellate court would presume that they were regular; and the objection is not therefore available under this statute. Hill v. Bowyer, 59 Va. (18 Gratt.) 364, 1868 Va. LEXIS 18 (1868).

    Trial court cannot correct its own order vacating judgment. —

    The court below having vacated a judgment upon a motion of the defendant, where all parties appeared by their counsel, it had no jurisdiction to correct its action in that regard under this section; the proper remedy was by appeal. Dillard v. Thornton, 70 Va. (29 Gratt.) 392, 1877 Va. LEXIS 30 (1877).

    The Supreme Court is without power to correct a clerical error in its own decrees when the application for relief is made after the expiration of the term at which the decree was rendered, or after the expiration of the period within which a petition for rehearing may be filed. Southern Ry. v. Glenn's Adm'r, 7 Va. L. Reg. 532 (1900).

    Statement that no exceptions had been filed was neither a finding of fact nor a conclusion of law, but was merely an erroneous recital of what took place during the proceedings, and correction was properly made under this section. State Hwy. Comm'r v. Easley, 215 Va. 197 , 207 S.E.2d 870, 1974 Va. LEXIS 259 (1974).

    CIRCUIT COURT OPINIONS

    Applicability. —

    Portion of subsection D of § 8.01-428 related to fraud upon the court applies to criminal matters because (1) courts previously have applied § 8.01-428 to criminal cases, (2) the language in subsection D does not restrict its use to non-criminal matters, and (3) some courts have tacitly acknowledged its application in setting aside criminal convictions. Wilson v. Commonwealth, 108 Va. Cir. 97, 2021 Va. Cir. LEXIS 90 (Fairfax County Apr. 20, 2021).

    Effect of 21-day rule on dismissed case. Whereas a case extinguished by a judgment and effectuated by the 21-day rule, codified at § 8.01-428 , is fully dispositive of all disputed issues and facts pertaining thereto, a case dismissed pursuant to § 8.01-335 is not dead but in a state of suspended animation. Consequently, the two-year statute affords those parties to dismissed proceedings the opportunity to be heard and have their disputes resolved by the legal system if requested within the statutorily mandated period of time in order to promote the principles of justice without clogging the dockets of Virginia’s courts. Cook v. Wayland, 64 Va. Cir. 386, 2004 Va. Cir. LEXIS 60 (Waynesboro Apr. 26, 2004).

    Prisoner’s request for a name change. —

    Prisoner’s petition to have the court amend his sentencing order for the purpose of having the Department of Corrections recognize his name change was denied, because the court lacked the authority to make such a ruling under Va. Sup. Ct. R. 1:1 and § 8.01-428 B. Anderson v. Ray, 63 Va. Cir. 550, 2004 Va. Cir. LEXIS 1 (Portsmouth Jan. 13, 2004).

    Reference to statute. —

    Although ex-husband did not specifically mention § 8.01-428 in his motion to vacate child support, he did allege fraud as a justification for the arrest of the original divorce judgment; the court would provide latitude to the ex-husband in recognizing the application of § 8.01-428 to the pleading. Rodgers v. Manson, 58 Va. Cir. 1, 2001 Va. Cir. LEXIS 385 (Fauquier County May 9, 2001).

    Where, under a Massachusetts order, a father’s child support obligation continued until the youngest child turned 23, the inclusion of language in the parties’ subsequent consent decree referencing subsection C of § 20-124.2 , under which support ended at 18 or 19, was not an “oversight” correctable under subsection B of § 8.01-428 , but was placed there intentionally by counsel because it was the language required for Virginia child support orders. Dempsey v. Arigo, 2006 Va. Cir. LEXIS 336 (Loudoun County Oct. 2, 2006).

    Scrivener’s error not found. —

    When a husband sought to enforce a property settlement agreement the parties entered into, the wife did not prove a scrivener’s error, under subsection B of § 8.01-428 , requiring reformation of the agreement, because the agreement the parties signed did not match the one they agreed to when they met with a neutral party, as the difference arose from the wife’s counsel’s alteration of the formula they had agreed to under which the husband could buy out the wife’s interest in their jointly owned property, and there was no error as the husband testified he considered the alteration to be a counter-offer which he accepted. Beck v. Beck, 62 Va. Cir. 125, 2003 Va. Cir. LEXIS 101 (Fairfax County June 6, 2003).

    Trial court denied the husband’s motion to correct a scrivener’s error in a property settlement agreement in a divorce case; the husband did not show that clear error occurred and, thus, the husband was not entitled to have the agreement reformed. Chasen v. Chasen, 2006 Va. Cir. LEXIS 290 (Richmond Dec. 20, 2006), aff'd, No. 0004-07-2, 2008 Va. App. LEXIS 243 (Va. Ct. App. May 20, 2008).

    Commonwealth’s motion to modify the restitution portion of the sentencing order was denied because the court did not have jurisdiction to amend or modify the sentencing order as the court was divested of jurisdiction to modify, vacate, or suspend a final order once 21 days had lapsed since its entry; the portion of the sentencing order regarding how defendant would pay restitution was as stated in the record, and, as such, the exception to correct a final order that was inconsistent with what actually occurred in the proceeding or with what the court ordered but was mistakenly recorded or omitted, did not apply; and the Commonwealth sought to modify the sentencing order other than to affect the unserved portion of defendant’s sentence. Commonwealth v. Anderson, 98 Va. Cir. 442, 2013 Va. Cir. LEXIS 218 (Chesapeake May 31, 2013).

    Subsections B and C distinguished. —

    Petitioner’s motion to correct the court clerk’s failure to give him notice of the final order in a timely manner was denied because the error was governed by subsection C, rather than subsection B, and petitioner brought the motion after 60 days and was without a remedy; a completely blameless litigant can permanently lose his or her right to appeal when the clerk’s apparent error in failing to transmit an order is not corrected within 60 days. Pannell v. Commonwealth, 90 Va. Cir. 1, 2015 Va. Cir. LEXIS 35 (Norfolk Jan. 9, 2015).

    Subsection B not applicable to errors in reasoning and conclusions of the court. —

    Motion to reconsider an order authorizing the transfer of church property was denied because there was no clerical error subject to subsequent correction by the circuit court pursuant to subsection B of § 8.01-428 ; the term “clerical error” typically applies to scrivener’s errors and the like, and it does not apply to an attack on the substance of an order. In re Multi-Circuit Episcopal Church Prop. Litig., 76 Va. Cir. 976, 2008 Va. Cir. LEXIS 161 (Fairfax County Dec. 19, 2008).

    Scope of subsection B. —

    Because subsection B expressly allows a court to correct qualifying mistakes “at any time,” it confers jurisdiction on trial courts beyond the 21-day period for that limited purpose. Pannell v. Commonwealth, 90 Va. Cir. 1, 2015 Va. Cir. LEXIS 35 (Norfolk Jan. 9, 2015).

    No error or oversight found. —

    Defendant’s motion to quash service of process of a motion for judgment on the ground that the administrator who accepted service of process did not have authority to do so as her qualification was pursuant to § 8.01-50 , not former § 64.1-75, was properly granted because, while the administrator intended to qualify in order to accept service of process, she did not do so, and she, not the clerk, bore the responsibility for this mistake. Thus, there was, in fact, no error or oversight to correct, as contemplated by § 8.01-428 . Blick v. Fant, 70 Va. Cir. 76, 2005 Va. Cir. LEXIS 292 (Greensville County Oct. 14, 2005).

    Untimely filing of habeas application. —

    Application for writ of habeas corpus that was not filed within two years of entry of final judgment sentencing petitioner to prison, but which was filed within two years of entry of amended order correcting two scrivener’s errors in final judgment, was not timely filed, as subdivision A 2 of § 8.01-654 required filing within two years of final judgment and the amended order was not a final judgment. Wilkins v. Powell, 56 Va. Cir. 27, 2001 Va. Cir. LEXIS 439 (Clarke County Jan. 30, 2001).

    Non-party may maintain suit if interest jeopardized by enforcement of judgment. —

    Although an afterborn child was not a party to an infant settlement petition brought by a decedent’s estate against an insurance company, he had standing to bring an action to vacate the settlement order, under subsection D of § 8.01-428 , where his interests were jeopardized by the challenged order. Alce v. Edwards, 73 Va. Cir. 182, 2007 Va. Cir. LEXIS 213 (Norfolk Apr. 3, 2007).

    Jurisdiction to set aside judgment for fraud. —

    While more than 21 days had passed since the entry of the orders finding a father in arrears in his child support payments and in contempt, under subsection D of § 8.01-428 there was jurisdiction to set aside a judgment or decree for fraud at any time, notwithstanding Va. Sup. Ct. R. 1:1. Hazraty v. Hazraty, 2007 Va. Cir. LEXIS 146 (Fairfax County Aug. 22, 2007).

    No fraud on the court found. —

    Order clarifying that a default judgment against defendant still stood and that a later order only dismissed the case against another defendant was not procured by fraud because plaintiff’s counsel did not notify defendant of his request for the clarification order, as there was no evidence that counsel acted to mislead or did mislead the judge, even by silence. Scott v. Beason, 62 Va. Cir. 70, 2003 Va. Cir. LEXIS 271 (Norfolk May 21, 2003).

    Wife’s bill of complaint did not adequately state a claim for fraud on the court because the wife did not allege with specificity which written interrogatories, questions on cross-examination, or requests for discovery the husband fraudulently answered in an attempt to conceal the repayment of a note. Moreover, the bill of complaint did not adequately reveal an absence of fault on the wife’s part in procuring the requested discovery from the husband, and the wife did not clearly and conclusively plead that the husband acted with an intent to mislead in not responding to discovery, other than making an assumption of such intent. Swofford v. Bowles, 65 Va. Cir. 161, 2004 Va. Cir. LEXIS 124 (Albemarle County June 24, 2004).

    Fraud on the court found. —

    Serial failures by a mother and her counsel and a father’s counsel constituted a fraud upon the trial court for purposes of subsection D of § 8.01-428 , although there was no evidence that it was intentional, as: (1) they did not advise the court that a father’s child support obligation had been reduced; (2) had the trial court been aware of the order modifying the child support obligation at the hearing on the arrearage, it would have been aware that the father was not in arrears; and (3) the failure by the mother, her counsel, and the father’s counsel to bring the modification order to the trial court’s attention led to the entry of the order finding the father in arrears, which formed the basis for a contempt order. Hazraty v. Hazraty, 2007 Va. Cir. LEXIS 146 (Fairfax County Aug. 22, 2007).

    Infant settlement in a wrongful death case had to be set aside where the acts of an attorney and the estate’s administratrix were fraudulent: (1) they knew that a woman was pregnant and that she claimed that the decedent was the father; (2) neither advised the court of that fact while the settlement action was pending or immediately after the court entered the settlement order; (3) the attorney was duty-bound to advise the court of the afterborn child’s status; (4) their actions resulted in further litigation and expense to vindicate the afterborn child’s rights as the decedent’s child; and (5) the attorney derived a profit from excluding the afterborn child from the settlement amount. Alce v. Edwards, 73 Va. Cir. 182, 2007 Va. Cir. LEXIS 213 (Norfolk Apr. 3, 2007).

    Petitioner had shown by clear and convincing evidence that a police officer’s false statements in his police report and to the magistrate perpetuated a fraud upon the court where evidence showed that petitioner’s vehicle had not crossed the solid yellow line, no tint test was done on the vehicle window to show that the tint was illegal, and without either of those grounds, the stop was illegal. Wilson v. Commonwealth, 108 Va. Cir. 97, 2021 Va. Cir. LEXIS 90 (Fairfax County Apr. 20, 2021).

    Constructive trust established. —

    Constructive trust was established in a wrongful death case where the attorney for a decedent’s estate realized a profit from an infant settlement through his calculated fraud in failing to advise a court that the decedent had an afterborn child who was also entitled to share in the settlement. Injustice would be prevented only if the attorney was compelled to hold the profit in trust for the benefit of the afterborn child and his counsel. Alce v. Edwards, 73 Va. Cir. 182, 2007 Va. Cir. LEXIS 213 (Norfolk Apr. 3, 2007).

    Authority of court. —

    In a case in which a husband and wife were married in a religious ceremony and sought to have their marriage confirmed by a court pursuant to §§ 20-31 and 20-90 , they had not obtained a marriage license, as required by § 20-13 . While the parties might remain married according to their religion, their marriage ceremony conferred no legal rights between them under the laws of the Commonwealth of Virginia, and the court could not issue a marriage license retroactive to the date of the religious ceremony. In re Ejigu, 79 Va. Cir. 349, 2009 Va. Cir. LEXIS 127 (Fairfax County Sept. 30, 2009).

    Amendment of pendente lite order. —

    Trial court amended pendente lite order in a divorce action that included language requiring the husband to pay the wife’s uninsured medical expenses, as the parties had not agreed on that issue and the issue was never presented to and ruled on by the court; the order was not a final order over which the court no longer had jurisdiction, and the removal of the subject language amounted to no more than the correction of a clerical error. Dalton-Reitz v. Reitz, 54 Va. Cir. 187, 2000 Va. Cir. LEXIS 570 (Loudoun 2000).

    Final order entered but not received. —

    Trial court denied the part-interest purchaser’s motion for leave to appeal the trial court’s final order, which was entered but was not received by the court clerk’s office for nearly three months, as he was required to have filed his motion within 60 days of entry of the final order and did not do so. Chowdhury v. Omniguru Sys., 71 Va. Cir. 306, 2006 Va. Cir. LEXIS 134 (Fairfax County July 20, 2006).

    Garnishment vacated nunc pro tunc. —

    Trial court properly vacated nunc pro tunc a garnishment entered against a company, because subsection B of § 8.01-428 enables judges to enter nunc pro tunc orders replacing previous orders that were entered as a result of clerical error, and by inadvertently omitting a crucial document from the file in the instant case, the clerk’s office improperly performed its duty to maintain accurate records, giving rise to an erroneous judgment. Gild & Assocs., P.C. v. Gonzalez, 58 Va. Cir. 322, 2002 Va. Cir. LEXIS 52 (Fairfax County Mar. 8, 2002).

    Foreign judgment reviewable. —

    Virginia trial court retained jurisdiction under subsection A of § 8.01-428 to review and set aside a Texas judgment docketed under the Uniform Enforcement of Foreign Judgments Act in Virginia, but found the Texas court acted properly in asserting personal jurisdiction over a Virginia resident and entering a default judgment against him. Johnson v. Niemela, 58 Va. Cir. 199, 2002 Va. Cir. LEXIS 30 (Fairfax County Feb. 13, 2002).

    Docketing of void foreign judgment set aside. —

    There is no time limit for asking a court to set aside a void judgment under subsection A of § 8.01-428 . Hence, the docketing of a Pennsylvania judgment, which was void because debtor was not served in accordance with the applicable Pennsylvania Rules of Court, would be set aside. Empire Beauty Sch. v. Bell, 58 Va. Cir. 32, 2001 Va. Cir. LEXIS 384 (Richmond Aug. 28, 2001) see also Empire Beauty Sch. v. Bell, 58 Va. Cir. 32, 2001 Va. Cir. LEXIS 513 (Richmond Aug. 9, 2001).

    Debtor’s motion to set aside the docketing of the creditor’s Pennsylvania judgment in the Virginia trial court was granted, as the debtor was not precluded from challenging the validity of the Pennsylvania judgment that the creditor had docketed in the Virginia trial court based on the passage of time; the Pennsylvania judgment was void due to improper service and, under Virginia law, a void judgment could be attacked at any time. Empire Beauty Sch. v. Bell, 58 Va. Cir. 32, 2001 Va. Cir. LEXIS 513 (Richmond Aug. 9, 2001) (see also Empire Beauty Sch. v. Bell, 2001 Va. Cir. LEXIS 384 (Richmond Aug. 28, 2001)).

    Because the attempted service on a judgment debtor’s son was not at the debtor’s usual place of abode in Florida, it was improper; therefore, since there was no proper service under Fla. Stat. § 48.031(1)(a), the docketing of the Florida judgment in Virginia was set aside. Gosp v. McAuliffe, 77 Va. Cir. 203, 2008 Va. Cir. LEXIS 151 (Fairfax County Oct. 16, 2008).

    Default judgment void for lack of personal jurisdiction. —

    Default judgment was vacated because there was no allegation that the debtor attempted to develop economic opportunities within California or sought the protection of California’s laws. As such the California court did not have personal jurisdiction over the debtor and the default judgment was void. Nat'l Credit Control Agency v. Dae Woo Video, Inc., 79 Va. Cir. 544, 2009 Va. Cir. LEXIS 120 (Fairfax County Nov. 30, 2009).

    Default judgment entered against a seller in an Oregon court was vacated and set aside under § 8.01-428 because: (1) under § 8.01-465.2 , a foreign judgment had the same effect as a Virginia judgment; (2) the court inferred that the default judgment was not fully and fairly litigated; (3) the Oregon court lacked personal jurisdiction over the seller; and (4) the default judgment was void. Abdulhadi v. Bavarian Auto Sales, LLC, 86 Va. Cir. 249, 2013 Va. Cir. LEXIS 11 (Goochland County Feb. 11, 2013).

    Default judgment void for lack of proper service and adequate notice. —

    Default judgment against defendant was void for lack of proper service and adequate notice because plaintiff, which served defendant through the Secretary of the Commonwealth pursuant to § 8.01-329 , did not diligently attempt to serve process on defendant at an address reasonably calculated to afford it with service; plaintiff’s service was at an address that defendant had not used to conduct business in over sixteen years and did not demonstrate sufficient effort to give defendant notice, and plaintiff could not properly claim that the address it used was the last known address for defendant because it did not communicate with defendant at that address during their entire business relationship. 2218815 Ont., Inc. v. DanSources Tech. Servs., 82 Va. Cir. 310, 2011 Va. Cir. LEXIS 24 (Fairfax County Mar. 1, 2011).

    Default judgment unavailable to challenge criminal convictions. —

    Inmate’s petition seeking to have his criminal convictions declared void was dismissed for lack of jurisdiction because he still had the availability of a writ of habeas corpus to address new legal claims and the ability to petition the governor for relief, the inmate had litigated the issues before the court through a motion to set aside the verdict and on direct appeal, and the issues he raised had been litigated at both the state and federal level. Garnett v. Commonwealth, 100 Va. Cir. 277, 2018 Va. Cir. LEXIS 609 (Madison County Nov. 1, 2018).

    Void judgment. —

    Defendant was entitled to vacate the default judgment against him because the plaintiffs’ complaint did not state a cause of action where the property fraudulently conveyed was realty and the complaint sought damages. Burrill v. Palmer, 95 Va. Cir. 289, 2017 Va. Cir. LEXIS 50 (Fairfax County Mar. 10, 2017).

    Relief where default judgment entered. —

    Chinese drywall manufacturer’s motion to dismiss for a management company’s failure to effect service within one year should have been made before a default judgment was entered. Because judgment had already been entered against the manufacturer, relief was available only under § 8.01-428 , which provided authority to set aside default judgments in cases wherein defendants were not served with process. Dragas Mgmt. Corp. v. Taishan Gypsum Co., 90 Va. Cir. 331, 2015 Va. Cir. LEXIS 73 (Norfolk June 16, 2015).

    Order denying motion to vacate. —

    Where an order denying a debtor’s motion to vacate a void judgment under clause (ii) of subsection A of this section disposed of the whole subject matter of the requested relief, it was appealable as a final judgment. Reston Dental Arts Ctr. v. Shepherd, 61 Va. Cir. 734, 2002 Va. Cir. LEXIS 310 (Fairfax County Dec. 26, 2002).

    While Title 25.1 does not allow a condemnee to petition for a rehearing after 21 days, § 8.01-428 is in fact broader in its protections than § 8.01-322 in that the latter prescribes no time limit for which a court may relieve a party from any judgment or proceeding in which process was not provided; therefore, between the two, a condemnee served by publication is provided with ample opportunities for notice and an opportunity to be heard. The Due Process Clause is not violated by such procedures. Norfolk Redevelopment & Hous. Auth. v. Stevenson, 63 Va. Cir. 567, 2004 Va. Cir. LEXIS 91 (Norfolk Jan. 27, 2004).

    Accord and satisfaction not established. —

    Employer failed to prove that an accord and satisfaction occurred to justify setting aside a default judgment in favor of the former employee, when the employee allegedly accepted stock, offered in the employment agreement, in lieu of any outstanding salary that was also set forth in the employment agreement; the employer did not show that it was the employer’s intention, and that the employee knew of this intention, that issuance of the stock was to be in complete satisfaction of the disputed compensation claims, and the employer presented no evidence that the employee accepted the stock in satisfaction of the employee’s compensation claim. Farsedakis v. Exus Global, Inc., 68 Va. Cir. 261, 2005 Va. Cir. LEXIS 133 (Fairfax County July 15, 2005).

    Grounds not shown to set aside default judgment. —

    Guarantor’s motion to set aside a default judgment was denied, as constructive service of the motion under § 8.01-329 was properly effectuated, notice of an intent to seek default judgment was not required where such was made by praecipe, and any intrinsic fraud which did occur was insufficient to set the judgment aside under this section; further, the guarantor’s lack of diligence in checking his mail did not render the address incorrect for purposes of constructive service. Pallett Recycling, LLC v. Case, 70 Va. Cir. 125, 2006 Va. Cir. LEXIS 13 (Rockingham County Jan. 12, 2006).

    Plaintiff had not established that he was entitled to equitable relief from a default judgment entered against him in another case because plaintiff had not shown that there was a fraud, accident, or mistake in the earlier judgment. Fact that plaintiff claimed he did not receive notice was not relevant when the record showed that plaintiff had been served by the Secretary of the Commonwealth, pursuant to § 8.01-329 . Gaskins v. Life Inst. East, Ltd., 71 Va. Cir. 113, 2006 Va. Cir. LEXIS 148 (Henrico County June 8, 2006).

    Judgment was not void for § 8.01-428 purposes for improper service as an affidavit for subsection B of § 8.01-329 service provided a previous address for an investor, but the investor actually received service at that address; while an Internet search might have revealed a current address, the reliability of such a search was not assured. Cassen v. Slater, 75 Va. Cir. 327, 2008 Va. Cir. LEXIS 95 (Chesapeake July 8, 2008).

    Promoter did not commit a fraud on the trial court for § 8.01-428 purposes when the promoter alleged that the promoter entered into agreements with an investor d/b/a a limited liability company as the investor did not show that the promoter’s actions prohibited or impeded the investor’s ability to appear before the court to defend the investor. Cassen v. Slater, 75 Va. Cir. 327, 2008 Va. Cir. LEXIS 95 (Chesapeake July 8, 2008).

    Judgment debtor could not be relieved of a default judgment under subsection D of § 8.01-428 because there was no allegation that the debtor did not know what happened to the motion for judgment; although the debtor argued that but for its chief financial officer’s mistaken belief that he could file an answer on behalf of the debtor, it would have retained an outside attorney admitted in Virginia to assert its strong defenses, the debtor knew it had been sued, and it simply did not comply with the law. Modular Wood Sys., Inc. v. World Trade Group, L.L.P., 77 Va. Cir. 403, 2009 Va. Cir. LEXIS 103 (Henrico County Feb. 23, 2009).

    Respondent’s demurrer to the petition to set aside the default judgment under subsection D of § 8.01-428 was sustained because petitioner missed the deadline to file an answer, failed to follow up with counsel to ensure pleadings were filed, and waited six months after receiving notification of the default judgment before filing the instant action. 21 East Main, LLC v. Worth, Inc., 100 Va. Cir. 380, 2018 Va. Cir. LEXIS 694 (Salem Dec. 7, 2018).

    Wife’s demurrer to husband’s motion under subsection D of § 8.01-428 granted. —

    Wife’s demurrer to a husband’s motion to vacate a consent decree to enforce child support was granted, as the husband’s bill of complaint failed to sufficiently allege: (1) a good defense; (2) how the claimed mistake prevented him obtaining the benefit of a defense, in light of the timing of the knowledge of the mistake from the date of entry of the consent decree within the 21 days allowed by the rules of court before the decree became final; and (3) an absence of fault or negligence on his part, given the sequence of events as alleged. Valentine v. Valentine, 2006 Va. Cir. LEXIS 123 (Richmond Jan. 11, 2006).

    Motion for extension of time denied. —

    Denial of a motion for an extension of time to file a delayed appeal was appropriate, as defense counsel had notice that an order had been entered, due to a conversation with opposing counsel, as well as defense counsel’s electronic receipt of a copy of the order on the same day counsel’s office requested the same from the court’s staff. Furthermore, defense counsel took no action until the evening of the final deadline to pursue post-trial relief in the court, or to file a notice of appeal. Just Right Homes, L.L.C. v. Smith, 2017 Va. Cir. LEXIS 148 (Chesapeake Aug. 24, 2017).

    § 8.01-429. Action of appellate court when there might be redress under § 8.01-428.

    No appeal shall be allowed by the Court of Appeals or the Supreme Court or any judge or justice thereof for any matter for which a judgment or decree is liable to be reversed or amended, on motion as aforesaid, by the court which rendered it, or the judge thereof, until such motion is made and overruled in whole or in part. And when the Court of Appeals or the Supreme Court hears a case on appeal, if it appears that, either before or since the appeal, the judgment or decree has been so amended, the Court of Appeals or the Supreme Court shall affirm the judgment or decree, unless there is other error. If it appears that the amendment ought to be, and has not been made, the Court of Appeals or the Supreme Court may make such amendment, and affirm in like manner the judgment or decree, unless there is other error.

    History. Code 1950, § 8-349; 1977, c. 617; 1984, c. 703.

    REVISERS’ NOTE

    Former § 8-350 has been transferred to § 8.01-383.1 .

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Costs, § 9.

    CASE NOTES

    Appeal is not allowed unless relief is sought in trial court. —

    Pursuant to this section, the Supreme Court has no jurisdiction of an appeal from a decree by default until relief has been sought under § 8.01-428 , by motion to the court in which the decree was rendered. When the time allowed by § 8.01-428 has expired, the decree becomes final and irreversible. Smith v. Powell, 98 Va. 431 , 36 S.E. 522 , 1900 Va. LEXIS 60 (1900) (decided under prior law).

    Hence supersedeas would be dismissed. —

    If a party obtains a supersedeas to a judgment by default, before applying to the court in which the judgment was rendered, or the judge thereof, to correct the errors of which he complains, his supersedeas will be dismissed as improvidently awarded. Davis v. Commonwealth, 57 Va. (16 Gratt.) 134, 1861 Va. LEXIS 1 (1861) (decided under prior law).

    A mistake of the trial court in rendering judgments for damages after the verdict may be corrected by appellate court under the provisions of this section. Powers v. Hamilton, 117 Va. 810 , 86 S.E. 98 , 1915 Va. LEXIS 98 (1915) (decided under prior law).

    Trial court erred in vacating default judgment. —

    Where defendant had been personally served and plaintiff had strictly complied with all the formalities of rules of pleading and the motion for judgment stated a cause of action, the trial court erred in vacating a default judgment, there being no errors on which an appellate court might reverse and no cognizable mistake. Landcraft Co. v. Kincaid, 220 Va. 865 , 263 S.E.2d 419, 1980 Va. LEXIS 178 (1980).

    § 8.01-430. When final judgment to be entered after verdict set aside.

    When the verdict of a jury in a civil action is set aside by a trial court upon the ground that it is contrary to the evidence, or without evidence to support it, a new trial shall not be granted if there is sufficient evidence before the court to enable it to decide the case upon its merits, but such final judgment shall be entered as to the court shall seem right and proper. If necessary to assess damages which have not been assessed, the court may empanel a jury at its bar to make such assessment, and then enter such final judgment.

    Nothing in this section contained shall be construed to give to trial courts any greater power over verdicts than they now have under existing rules of procedure, nor to impair the right to move for a new trial on the ground of after-discovered evidence.

    History. Code 1950, § 8-352; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-353 (How judgment entered on bond for payment of money) has been deleted, since this section was merely declaratory of long-standing and clear principles of substantive law.

    Former § 8-354 (Right of infant to show cause against decree) has also been deleted. The infant is protected by the tolling statute found in § 8.01-229 .

    Cross references.

    As to power of trial court to grant a new trial on the grounds of inadequate or excessive damages, see § 8.01-383 .

    As to rule of decision on appeal from order granting or overruling motion to set aside a verdict as contrary to the evidence, see § 8.01-680 .

    Law Review.

    For note, “New Trial on the Issue of Damages in Virginia,” see 41 Va. L. Rev. 269 (1955).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, see “Civil Practice and Procedure,” 26 U. Rich. L. Rev. 679 (1992).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 269, 282, 328.

    CASE NOTES

    Analysis

    Criteria for setting verdict aside. —

    The power conferred on the trial judge under this section to set aside a jury verdict and enter judgment thereon can only be exercised where the verdict is plainly wrong or without credible evidence to support it. If there is a conflict in the testimony on a material point, or if reasonable men may differ in their conclusions of fact to be drawn from the evidence, or if the conclusion is dependent on the weight to be given the testimony, the trial judge cannot substitute his conclusion for that of the jury merely because he would have voted for a different verdict if he had been on the jury. The weight of a jury’s verdict, when there is credible evidence upon which it can be based, it is not overborne by the trial judge’s disapproval. Lane v. Scott, 220 Va. 578 , 260 S.E.2d 238, 1979 Va. LEXIS 300 (1979), cert. denied, 446 U.S. 986, 100 S. Ct. 2969, 64 L. Ed. 2d 843, 1980 U.S. LEXIS 1936 (1980); Dutton v. Locker, 224 Va. 535 , 297 S.E.2d 814, 1982 Va. LEXIS 326 (1982).

    Under this section, a verdict may be set aside only where it is contrary to the evidence or without evidence to support it and the trial court may then enter final judgment rather than grant a new trial if there is sufficient evidence to enable the court to decide the case upon its merits. Sampson v. Sampson, 221 Va. 896 , 275 S.E.2d 597, 1981 Va. LEXIS 225 (1981).

    When conflicting inferences have been resolved by a jury and those necessarily underlying the conclusion reflected in the verdict are reasonably deducible from the evidence, a trial judge should not set the verdict aside. Lane v. Scott, 220 Va. 578 , 260 S.E.2d 238, 1979 Va. LEXIS 300 (1979), cert. denied, 446 U.S. 986, 100 S. Ct. 2969, 64 L. Ed. 2d 843, 1980 U.S. LEXIS 1936 (1980); Coleman v. Blankenship Oil Corp., 221 Va. 124 , 267 S.E.2d 143, 1980 Va. LEXIS 223 (1980); Sampson v. Sampson, 221 Va. 896 , 275 S.E.2d 597, 1981 Va. LEXIS 225 (1981).

    Reviewing court must reinstate jury verdict if there is credible evidence to support it. —

    If there is credible evidence in the record which supports the jury’s verdict, the reviewing court must reinstate that verdict and enter judgment thereon. Rogers v. Marrow ex rel. Marrow, 243 Va. 162 , 413 S.E.2d 344, 8 Va. Law Rep. 1868, 1992 Va. LEXIS 142 (1992).

    Reviewing court accords verdict recipient benefit of all conflict in evidence. —

    In analyzing the evidence, even where the trial court has set aside the verdict, the reviewing court accords the recipient of the verdict the benefit of all substantial conflict in the evidence, as well as all inferences which may be reasonably drawn from the evidence. Rogers v. Marrow ex rel. Marrow, 243 Va. 162 , 413 S.E.2d 344, 8 Va. Law Rep. 1868, 1992 Va. LEXIS 142 (1992).

    Trial court erred in setting aside a jury’s verdict in favor of plaintiff marketer against defendant producer for conversion of the producer’s share of money from a settlement with the parties’ joint client, as: (1) the evidence supported the jury’s finding of a joint venture; (2) the conversion claim was viable independent of any contract claim; (3) and the jury was entitled to find that the producer wrongfully withheld the marketer’s share of the settlement proceeds. PGI, Inc. v. Rathe Prods., Inc., 265 Va. 334 , 576 S.E.2d 438, 2003 Va. LEXIS 35 (2003).

    Where the evidence was in conflict regarding whether the injured party was contributorily negligent and the trial court erred in setting aside the verdict, the appeals court was not permitted to reinstate the jury verdict because the jury returned its verdict in the exact amount of the claimed medical and special damages, warranting a new trial as to the issue of damages only. Jenkins v. Pyles, 269 Va. 383 , 611 S.E.2d 404, 2005 Va. LEXIS 50 (2005).

    Right to a trial by a jury in a civil case is constitutional in origin, and a jury’s verdict should be set aside only where it is plainly wrong or there is no credible evidence in the record to support that verdict; since a physician’s opinion that a diner’s illness was caused by food poisoning was based sufficiently on facts known to him and was not speculative, since a timeline discrepancy regarding the onset of the diner’s symptoms went to weight given the testimony by the jury, and since the lay testimony coupled with the doctor’s diagnosis was sufficient to support a jury verdict for diner against a restaurant alleging food poisoning, the trial court erred in setting aside the jury’s verdict. Bussey v. E.S.C. Rests. Inc., 270 Va. 531 , 620 S.E.2d 764, 2005 Va. LEXIS 91 (2005).

    Verdict for a driver was improperly set aside under § 8.01-430 . Reasonable persons could differ regarding whether the driver was contributorily negligent in colliding with a truck that was stopped on the highway since evidence that the highway leading up to the accident scene curved and twisted allowed the finding that driver was unable to see stopped truck. Burroughs v. Keffer, 272 Va. 162 , 630 S.E.2d 297, 2006 Va. LEXIS 62 (2006).

    Circumstantial evidence was sufficient to support a jury’s finding that a pool owner’s failure to fully secure the gate to her backyard pool, as required by Botetourt County, Va., Code § 22-4, proximately caused a 30-month-old child’s death as the child was seen pulling on the chain on the gate shortly before he was found in the pool, and there was no evidence of any alternate means of access to the pool. McGuire v. Hodges, 273 Va. 199 , 639 S.E.2d 284, 2007 Va. LEXIS 2 (2007).

    Trial court erred when it set aside a jury verdict in a dispute between property owners and the landowners’ council as to the owners’ conduct in their on-site retail sale of wine, as the jury verdict, under the instructions provided, was not plainly wrong and was not without evidence to support it; the trial court’s injection of a reasonableness standard with respect to the owners’ interpretation of the council’s handbook deviated from the jury instructions, which were law of the case. Marterella v. Bellevue Landowners Council, Inc., 2012 Va. LEXIS 231 (Va. May 11, 2012).

    Trial court properly set aside jury verdict. —

    Where plaintiffs, the co-administrators of an estate, sued defendants, a corporation’s board member and another corporate representative, for constructive fraud, alleging that, due to defendants’ false representations about the valuation of stock held by the estate and about restrictions on selling the stock to non-shareholders, the co-administrators did not sell the stock on their own because they thought doing so was not allowed or that a proper value could not be set, the trial court properly set aside the jury’s verdict in the co-administrators’ favor and properly entered judgment in favor of defendants. Eden v. Weight, 265 Va. 398 , 578 S.E.2d 769, 2003 Va. LEXIS 47 (2003), overruled in part, SuperValu, Inc. v. Johnson, 276 Va. 356 , 666 S.E.2d 335, 2008 Va. LEXIS 103 (2008).

    II.Decisions Under Prior Law.

    1. General Consideration.
    2. When Verdict Should Be Set Aside.
    3. Power of Court to Enter Final Judgment.

    Editor’s note.

    The object of this section is to put an end to litigation, to obviate repeated trials and the delay and expense of litigation, and to remove the temptation to perjury by patching up the weak places disclosed at a former trial, not by after-discovered evidence, but by the same witnesses relied upon at the former trial. W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245 , 108 S.E. 15 , 1921 Va. LEXIS 152 (1921).

    The object of this section is to end the action at once and put the losing party to his writ of error, thus avoiding the temptation to perjury, and in many cases the unnecessary expense of a second trial. Clark v. Hugo, 130 Va. 99 , 107 S.E. 730 , 1921 Va. LEXIS 144 (1921), overruled, Poindexter v. Jones, 200 Va. 372 , 106 S.E.2d 144, 1958 Va. LEXIS 198 (1958) (see Sykes v. Brown, 156 Va. 881 , 159 S.E. 202 (1931)).

    The policy and purpose of this section and § 8.01-681 is a speedy determination of litigation and the rendition of a final judgment where it is clear, that upon the facts before it, the court can by such order attain the ends of justice. Morris & Co. v. Alvis, 130 Va. 434 , 107 S.E. 664 , 1921 Va. LEXIS 164 (1921); Standard Dredging Co. v. Barnalla, 158 Va. 367 , 163 S.E. 367 , 1932 Va. LEXIS 260 (1932).

    It does not deny constitutional guaranty of jury trial. —

    When a verdict is properly set aside as contrary to the evidence, or without evidence to support it, the power to enter a final judgment conferred upon the court by this section is not the power to determine any disputed fact in a controversy touching property, or a suit between man and man, and is not forbidden by the Constitution. W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245 , 108 S.E. 15 , 1921 Va. LEXIS 152 (1921).

    Which does not apply where case depends on question of law. —

    If no evidence is offered, or none that would warrant a jury in finding a verdict in accordance therewith, then the rights of the parties become a question of law, and there is no controversy to be determined by a jury, and the constitutional guaranty does not apply. W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245 , 108 S.E. 15 , 1921 Va. LEXIS 152 (1921).

    Limitation of scope of new trial does not violate Federal Constitution. —

    The practice that the scope of a new trial may be limited to less than all the issues of fact, when they are separable, does not violate the requirements of the Seventh Amendment to the Federal Constitution. The legislature and courts of Virginia have recognized the propriety of this practice. Schuerholz v. Roach, 58 F.2d 32, 1932 U.S. App. LEXIS 4627 (4th Cir.), cert. denied, 287 U.S. 623, 53 S. Ct. 78, 77 L. Ed. 541, 1932 U.S. LEXIS 233 (1932).

    Federal court cannot enter final judgment. —

    Even though this section allows the court to decide cases on their merits when the verdict is set aside, without granting a new trial, it does not permit the exercise of such power by a judge of a federal court, because the Seventh Amendment of the Federal Constitution, as interpreted by the U.S. Supreme Court, denies any such powers to a judge in a federal court. Norton v. City Bank & Trust Co., 294 F. 839, 1923 U.S. App. LEXIS 2562 (4th Cir. 1923).

    The section applies only to civil cases. —

    This section, with reference to the order to be entered by a trial court upon setting aside a verdict, and § 8.01-681 , with reference to the order of reversal to be entered in the Supreme Court, do not apply to criminal cases. As to such cases the practice remains unchanged and is controlled by § 19.2-324 . Henderson v. Commonwealth, 130 Va. 761 , 107 S.E. 700 , 1921 Va. LEXIS 192 (1921).

    Prior motion to strike evidence not required. —

    Whether or not there has been a prior motion to strike the evidence, the motion to set aside the verdict may be used as an appropriate method of testing the sufficiency of the evidence. Gabbard v. Knight, 202 Va. 40 , 116 S.E.2d 73, 1960 Va. LEXIS 188 (1960).

    Where verdict set aside as contrary to or unsupported by evidence. —

    Neither this section nor § 8.01-681 has any application except where there has been a motion to set aside the verdict because it is contrary to the evidence, or is without evidence to support it. If the verdict is set aside for some other reason, these sections do not apply. Hogg v. Plant, 145 Va. 175 , 133 S.E. 759 , 1926 Va. LEXIS 383 (1926).

    It does not apply to proceedings to remove public officer. —

    From the use of the technical term “civil action” in this section it is apparent that the section means to embrace only private personal actions, and not such a quasi-criminal statutory proceeding as a proceeding to remove a public officer under former §§ 15.1-63 through 15.1-66, which is not a private or personal action — is not purely private or civil — but is an action primarily public in its nature, which, although not criminal, is highly penal, and in which the Commonwealth is a party. Warren v. Commonwealth, 136 Va. 573 , 118 S.E. 125 , 1923 Va. LEXIS 106 (1923) (see Commonwealth ex rel. Davis v. Malbon, 195 Va. 368 , 78 S.E.2d 683 (1953)).

    It is not in conflict with § 8.01-378 . —

    There is no difficulty in harmonizing § 8.01-378 , forbidding peremptory instructions directing a verdict, with this section, providing for final judgment where a verdict is set aside as without evidence or contrary to the evidence. W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245 , 108 S.E. 15 , 1921 Va. LEXIS 152 (1921).

    Although it reaches same result as directed verdict. —

    Under the federal practice it is the duty of the judge to direct a verdict in favor of one of the parties when the testimony and all the inferences which the jury could justifiably draw therefrom would be insufficient to support a different finding. Under the practice in Virginia the same results are reached if the necessities of the case require it, by virtue of this section and § 8.01-680 , which provide when final judgment is to be entered by the appellate court after a verdict is set aside, and the rule of decision where the evidence and not the facts are certified. Southern Ry. v. Wilmouth, 154 Va. 582 , 153 S.E. 874 , 1930 Va. LEXIS 234, cert. denied, 282 U.S. 878, 51 S. Ct. 81, 75 L. Ed. 775, 1930 U.S. LEXIS 291 (1930).

    While § 8.01-378 forbids the trial court to direct a verdict, it is still possible to accomplish the same results by less summary methods. Evidence may be stricken out; the trial court may set aside the verdict, and in a proper case give final judgment under this section; the trial court may decline to give any instruction where the evidence would not sustain a verdict, and it may in substance direct a verdict by stating in an instruction a hypothetical case and telling the jury if they so believe, to find, etc. Davis v. Rodgers, 139 Va. 618 , 124 S.E. 408 , 1924 Va. LEXIS 137 (1924).

    It provides a substitute for new trial or remittitur. —

    If the evidence, in an action to recover unliquidated damages, showed that the amount of damages fixed by the jury was grossly inadequate or grossly excessive, trial courts, at common law, have, with due caution, exercised the power to set aside such verdicts and grant new trials, or, in the event the amount of the verdict was grossly excessive, have put the plaintiff on terms and entered judgment for a smaller sum. Under this section the practice, in such cases, is for the trial court to set aside the verdict and impanel a jury to assess proper damages. Isenhour v. McGranighan, 178 Va. 365 , 17 S.E.2d 383, 1941 Va. LEXIS 171 (1941).

    Criteria for not setting aside verdict. —

    If there is conflict of testimony on a material point, or if reasonably fair-minded men may differ as to the conclusions of fact to be drawn from the evidence, or if the conclusion is dependent upon the weight to be given the testimony, in all such cases the verdict of the jury is final and conclusive, and cannot be disturbed either by the trial court or by the Supreme Court, and if improperly set aside by the trial court, it will be reinstated by the Supreme Court. It is not sufficient that the judge, if on the jury, would have rendered a different verdict. It is not sufficient that there is a great preponderance of the evidence against it. But with all the respect that is justly due to the verdict of a jury, if there has been “a plain deviation from right and justice,” even a court of law will not make itself a party to such a wrong by entering up judgment on it. W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245 , 108 S.E. 15 , 1921 Va. LEXIS 152 (1921) (see also Peninsula Produce Exch., Inc. v. Upshur, 149 Va. 639 , 140 S.E. 651 (1927); Meade v. Saunders, 151 Va. 636 , 144 S.E. 711 (1928); Hoover v. J.P. Neff & Son, 183 Va. 56 , 31 S.E.2d 265 (1944)).

    The power conferred on the trial judge under this section to set aside a jury verdict and enter judgment thereon can only be exercised where the verdict is plainly wrong or without credible evidence to support it. If there is a conflict in the testimony on a material point, or if reasonable men may differ in their conclusions of fact to be drawn from the evidence, or if the conclusion is dependent on the weight to be given the testimony, the trial judge cannot substitute his conclusion for that of the jury merely because he would have voted for a different verdict if he had been on the jury. The weight of a jury’s verdict, when there is credible evidence upon which it can be based, is not overborne by the trial judge’s disapproval. Commonwealth v. McNeely, 204 Va. 218 , 129 S.E.2d 687, 1963 Va. LEXIS 136 (1963); Tyree v. Lariew, 208 Va. 382 , 158 S.E.2d 140, 1967 Va. LEXIS 229 (1967).

    Section does not enlarge power of trial court over verdict. —

    While it is true that this section conferred enlarged powers upon the trial courts, it is well settled by the decisions of the Supreme Court that trial courts have no greater power over verdicts than they had before the enactment of the section. Sykes v. Brown, 156 Va. 881 , 159 S.E. 202 , 1931 Va. LEXIS 240 (1931).

    Nor power of Supreme Court. —

    Trial courts have no greater power over verdicts now than they had before the enactment of this section, nor has the Supreme Court. The Supreme Court has always exercised the power and duty, when not hampered by statute, of setting aside a judgment that was plainly wrong or without evidence to support it. Norfolk & W. Ry. v. T.W. Thayer Co., 137 Va. 294 , 119 S.E. 107 , 1923 Va. LEXIS 156 (1923).

    Its only office is to test sufficiency of evidence. —

    This section is a highly useful statute, but its only office is to test the sufficiency of the evidence. In this respect it is a desirable substitute for a demurrer to the evidence or a peremptory instruction. But it was not designed to materially change or affect the control of trial courts over verdicts of the jury in cases where there is any material conflict of testimony. Flowers v. Virginian Ry., 135 Va. 367 , 116 S.E. 672 , 1923 Va. LEXIS 20 (1923) (see also Drake v. Norfolk Steam Laundry Corp., 135 Va. 354 , 116 S.E. 668 (1923); Alessandrini v. Mullins, 178 Va. 69 , 16 S.E.2d 323 (1941)).

    Court must to some extent pass on weight of evidence. —

    The very fact that the trial court is given the power to set aside a verdict as contrary to the evidence necessarily means that it must, to some extent at least, pass upon the weight of the evidence. It would, indeed, be a futile and idle thing for the law to give a court a supervisory authority over the proceedings and the manner of conducting a cause before the jury, and the right to set aside the verdict of the jury therein because contrary to the evidence, unless the judge vested with such power could consider, to some extent at least, the evidence in the cause. Cardwell v. Norfolk & W. Ry., 114 Va. 500 , 77 S.E. 612 , 1913 Va. LEXIS 112 (1913); Braswell v. VEPCO, 162 Va. 27 , 173 S.E. 365 , 1934 Va. LEXIS 230 (1934); Cloutier v. Virginia Gas Distribution Corp., 202 Va. 646 , 119 S.E.2d 234, 1961 Va. LEXIS 159 (1961).

    But it does not sit as a jury. —

    In setting aside a verdict under this section, the trial judge must, to some extent at least, pass upon the weight of the evidence, but he does not sit as a jury, it is not his duty to pass upon the preponderance of evidence, and he should not set aside a verdict supported by testimony which there is no reason to discredit. McQuown v. Phaup, 172 Va. 419 , 2 S.E.2d 330, 1939 Va. LEXIS 248 (1939).

    And may not substitute its view for that of jury. —

    In a collision action, where the evidence was conflicting as to whether the truck involved was the one which defendant’s employee was authorized to operate, and there was nothing inherently incredible in the testimony, it was error for the trial court to substitute its view of the case for that of the jury and render judgment for the defendant notwithstanding the verdict. Hoover v. J.P. Neff & Son, 183 Va. 56 , 31 S.E.2d 265, 1944 Va. LEXIS 130 (1944).

    Verdict must be plainly contrary to or unsupported by evidence. —

    It is well settled law in Virginia that the trial court cannot set aside the verdict of the jury as contrary to the evidence, unless it is plainly contrary to the evidence. Norfolk & W. Ry. v. T.W. Thayer Co., 137 Va. 294 , 119 S.E. 107 , 1923 Va. LEXIS 156 (1923) (see Stallard v. Atlantic Greyhound Lines, 169 Va. 223 , 192 S.E. 800 (1937); Alessandrini v. Mullins, 178 Va. 69 , 16 S.E.2d 323 (1941)).

    Under this section the trial court is without power to set aside a verdict unless it is contrary to the evidence, or without evidence to support it. There is not a great deal of difference between a verdict which is contrary to the evidence, or without evidence to support it. In either event, the verdict lacks the necessary support for approval. Burch v. Grace St. Bldg. Corp., 168 Va. 329 , 191 S.E. 672 , 1937 Va. LEXIS 230 (1937).

    When evidence incredible. —

    To be incredible, evidence must be either so manifestly false that reasonable men ought not to believe it, or it must be shown to be false by objects or things as to the existence and meaning of which reasonable men should not differ. Commonwealth v. McNeely, 204 Va. 218 , 129 S.E.2d 687, 1963 Va. LEXIS 136 (1963).

    Action of court must proceed from firm conviction. —

    A trial court is not warranted in setting aside a verdict merely because the court, if upon the jury, would have rendered a different verdict. The action of the trial court must proceed from a firm conviction that the verdict is plainly wrong or without evidence to support it. Sykes v. Brown, 156 Va. 881 , 159 S.E. 202 , 1931 Va. LEXIS 240 (1931).

    If fair-minded men might differ, verdict should stand. —

    The verdict must be set aside before judgment is entered, and this cannot be done if there is a conflict of testimony on a material point over which fair-minded men might differ. But if there has been a “plain deviation from right and justice,” even a court of law will not make itself a party to the wrong by entering judgment on the verdict. Gregory v. Seaboard Air Line Ry., 142 Va. 750 , 128 S.E. 272 , 1925 Va. LEXIS 377 (1925).

    A verdict founded on conflicting evidence may not be set aside and final judgment entered against the verdict, as to do this would in effect deprive a litigant of a jury trial. He is entitled to have controverted issues passed upon by a jury. Gable v. Bingler, 177 Va. 641 , 15 S.E.2d 33, 1941 Va. LEXIS 249 (1941).

    But court should set aside verdict that is plainly wrong. —

    Where it can be seen from the evidence as a whole that the verdict has recorded a finding in plain deviation from right and justice, the court may, indeed should, set it aside. Meade v. Saunders, 151 Va. 636 , 144 S.E. 711 , 1928 Va. LEXIS 262 (1928) (see also Kendricks v. City of Norfolk, 139 Va. 702 , 124 S.E. 210 (1924); Flannagan v. Northwestern Mut. Life Ins. Co., 152 Va. 38 , 146 S.E. 353 (1929); Tabb v. Willis, 155 Va. 836 , 156 S.E. 556 (1931); Clark v. Parker, 161 Va. 480 , 171 S.E. 600 (1933)).

    If the trial judge overrules a motion to strike and submits the case to the jury, and a verdict is returned, he then may set aside the verdict on the ground that it is contrary to the evidence, or without evidence to support it. If upon review the appellate court reaches a different conclusion, the record includes the verdict, and final judgment may be entered by the appellate court. This was the purpose of this section. Leath v. Richmond, F. & P.R.R., 162 Va. 705 , 174 S.E. 678 , 1934 Va. LEXIS 281 (1934).

    Court may reconsider instructions. —

    It is well settled in this State that on a motion for a new trial involving the correctness of the instructions, the court may reconsider the instructions, although not objected to, and if they are found to be incorrect and calculated to mislead the jury, may set aside the verdict. Smith v. Combined Ins. Co. of Am., 202 Va. 758 , 120 S.E.2d 267, 1961 Va. LEXIS 175 (1961).

    Facts justifying setting aside verdict. —

    In an action to recover on an insurance policy for loss from fire, defendant claimed that the loss was caused by order of civil authority, which was excepted by the policy. The trial court had instructed that if the fire was set to the building by order of the mayor it was by order of civil authority, and as defendant had not objected to this instruction it was the law of the case. It was held that under the evidence, it was clear that the fire was set by policemen in consequence and as a result of an order of the mayor, and accordingly the verdict for plaintiff was without evidence to support it, and was contrary to the law laid down in the instructions, and should have been set aside under this section. Queen Ins. Co. v. Perkinson, 129 Va. 216 , 105 S.E. 580 , 1921 Va. LEXIS 88 (1921).

    Court is not required to impanel jury to fix damages. —

    A verdict was set aside only because it was contrary to the evidence as to the amount of damages sustained by plaintiff. It was held that this section does not mean that when a verdict is set aside a new trial can be ordered only on the whole case, both as to liability and damages, or that the court must necessarily impanel a jury to fix damages which have not been properly assessed. Therefore, the action of the trial court in entering judgment for the amount of damages admitted by the defendant to have been suffered by the plaintiff was not error. Apperson-Lee Motor Co. v. Ring, 150 Va. 283 , 143 S.E. 694 , 1928 Va. LEXIS 314 (1928).

    But may enter judgment for amount warranted by evidence. —

    Where liability has been fixed by the jury and there is in the evidence no conflict in regard to the damages suffered by the plaintiff, under this section the trial court can set aside the verdict of the jury and enter judgment in an amount warranted by the evidence. Bass v. Peterson, 168 Va. 273 , 191 S.E. 519 , 1937 Va. LEXIS 222 (1937).

    And should not hesitate to do so. —

    This section was intended to secure speedy determination of litigation, and the court should not hesitate to enter final judgment in cases where it is clear upon the facts that the ends of justice can thereby be attained. Gable v. Bingler, 177 Va. 641 , 15 S.E.2d 33, 1941 Va. LEXIS 249 (1941).

    Unless evidence is conflicting. —

    This section unquestionably empowers the court, when the evidence is clear, to render final judgment upon setting aside the verdict, but if there is a conflict on a material point, or if reasonably fair-minded men may differ as to the conclusions of fact to be drawn from the evidence, then a question of fact is presented and the safe rule to follow is to submit the matter to the determination of the jury. Standard Dredging Co. v. Barnalla, 158 Va. 367 , 163 S.E. 367 , 1932 Va. LEXIS 260 (1932).

    Where facts show contributory negligence, defendant should have judgment. —

    Where, in an action for negligence, plaintiff’s admissions in his pleadings and evidence in the first trial, in which he took a nonsuit, showed that he was guilty of contributory negligence as a matter of law, the trial court, in setting aside a verdict for the plaintiff in the second trial as contrary to the law and the evidence, was able to decide the case on its merits, and rightly entered final judgment for the defendant. Burch v. Grace St. Bldg. Corp., 168 Va. 329 , 191 S.E. 672 , 1937 Va. LEXIS 230 (1937).

    Although instructions submitting the case to the jury have not been objected to, the trial court is not thereby precluded from setting aside the verdict and entering final judgment. Smith v. Combined Ins. Co. of Am., 202 Va. 758 , 120 S.E.2d 267, 1961 Va. LEXIS 175 (1961).

    Judgment is res judicata. —

    Where a verdict was set aside and judgment entered for defendant, under this section, in an action for damages to a truck which collided with a streetcar, it was conclusively determined that the plaintiff’s negligence was the proximate cause, and the judgment is res judicata of plaintiff’s negligence in an action for personal injury received in the same collision. Virginia Ry. & Power Co. v. Leland, 143 Va. 920 , 129 S.E. 700 , 1925 Va. LEXIS 314 (1925).

    Action against master and servant. —

    In an action to recover damages for injuries inflicted by an alleged servant of a filling station operator, the jury found a verdict in favor of plaintiff against the operator of the station, but was silent as to the alleged servant, although the uncontested evidence disclosed the liability of the servant beyond any doubt, and the court had instructed the jury that if plaintiff’s injuries were the result of the servant’s negligence, then they should find a verdict against him. The court, under this section, entered a judgment against the servant. The sole controverted issue was the existence or nonexistence of the relation of master and servant. It was held that, the liability of the servant not being an issue but an uncontroverted established fact, and the jury having, through inadvertence or otherwise, failed to fix liability against him, the court was clearly within its power when it pronounced judgment against him. Gable v. Bingler, 177 Va. 641 , 15 S.E.2d 33, 1941 Va. LEXIS 249 (1941).

    D.Power of Court to Impanel Jury to Assess Damages.

    Court may confine issue to quantum of damages. —

    The power of the trial court to set aside a verdict and confine the issue to be tried to the quantum of damages, in a proper case, is conferred in express terms by this section. Kirn v. Bembury, 163 Va. 891 , 178 S.E. 53 , 1935 Va. LEXIS 250 (1935).

    E.When New Trial Should Be Granted.

    New trial is proper if evidence imperfectly developed at first trial. —

    Where there is insufficient evidence before the trial court to enable it, under this section, to decide the case upon its merits, because the evidence was imperfectly developed at the trial, this section should not be invoked, and a new trial should be granted. Branning Mfg. Co. v. Norfolk-Southern R.R., 138 Va. 43 , 121 S.E. 74 , 1924 Va. LEXIS 9 (1924).

    When the record shows that because of an inadvertent failure of a party to comply with some technical rule of procedure he has been estopped from fully developing the question of his liability, there is not sufficient evidence, within the meaning of this section, before the court to enable it to pass upon the “merits of the case.” Under such circumstances, the court, if it determines to set aside the verdict, should not restrict the issue to be submitted to another jury to the question of damages. Kirn v. Bembury, 163 Va. 891 , 178 S.E. 53 , 1935 Va. LEXIS 250 (1935).

    Effect of failure to request final judgment. —

    While failure to request final judgment would not prevent the lower court or the appellate court from entering a final order in a proper case, it is perhaps a circumstance indicating that the merits of the case ought to be finally determined by a jury. Morris & Co. v. Alvis, 130 Va. 434 , 107 S.E. 664 , 1921 Va. LEXIS 164 (1921).

    F.Effect of Section on Appeal.

    If the trial court improperly sets aside a verdict it will be reinstated by the appellate court. Gregory v. Seaboard Air Line Ry., 142 Va. 750 , 128 S.E. 272 , 1925 Va. LEXIS 377 (1925).

    Under the well established rule the appellate court must first look to the record of the first trial and if the court erred in setting aside the verdict rendered in that trial, the first verdict will be reinstated and all proceedings subsequent thereto will be annulled. Eubank v. Hayden, 202 Va. 634 , 119 S.E.2d 328, 1961 Va. LEXIS 157 (1961).

    Effect of trial court’s disapproval of verdict. —

    A verdict which has been disapproved by the trial judge is not entitled to the same weight on appeal as one that has been approved by him. Braswell v. VEPCO, 162 Va. 27 , 173 S.E. 365 , 1934 Va. LEXIS 230 (1934); Maurer v. City of Norfolk, 147 Va. 900 , 133 S.E. 484 , 1926 Va. LEXIS 292 (1926); Cloutier v. Virginia Gas Distribution Corp., 202 Va. 646 , 119 S.E.2d 234, 1961 Va. LEXIS 159 (1961).

    Effect of approval of verdict. —

    Where the case was one for the jury, and its verdict of guilty has been approved by the trial court, under this section and § 8.01-680 , the judgment must be affirmed. Holloman v. Commonwealth, 138 Va. 758 , 120 S.E. 852 , 1924 Va. LEXIS 67 (1924).

    Supreme Court may enter final judgment. —

    If on review the Supreme Court does not agree with the judge of the trial court in its action in setting aside the verdict, the verdict is in the record, and final judgment may be entered by the appellate court. This procedure eliminates the delay and expense of a second trial, speeds final determination of litigation, and removes possible temptation for the commission of perjury on the second trial. These were the main objects contemplated by this section and § 8.01-681 . Walton v. Walton, 168 Va. 418 , 191 S.E. 768 , 1937 Va. LEXIS 239 (1937).

    Effect of failure to ask reformation of verdict in court below. —

    If there was error in the amount allowed by the jury the court below might have reformed the verdict under the provisions of this section, but it was not asked to do so. Defendant did not complain in the court below and hence cannot be heard on appeal. National Fire Proofing Co. v. Bickford, 141 Va. 706 , 126 S.E. 668 , 1925 Va. LEXIS 443 (1925).

    CIRCUIT COURT OPINIONS

    Deference to jury where reasonable minds might differ. —

    Court would not substitute its judgment for that of the jury where reasonable minds might differ over the conclusions to be drawn from the evidence; a motion to set aside a personal injury jury verdict or for additur was denied. Harding v. Meade, 58 Va. Cir. 168, 2002 Va. Cir. LEXIS 139 (Loudoun County Jan. 30, 2002).

    Jury’s verdict in malpractice case not set aside. —

    Trial court would not set aside a jury’s verdict in a medical malpractice case, involving a manually assisted delivery of a child, from which injuries resulted, where expert testimony established that the physician’s actions violated the applicable standard of care and proximately caused the patient’s injuries. Speelman v. Browning, 57 Va. Cir. 234, 2001 Va. Cir. LEXIS 436 (Norfolk Dec. 21, 2001).

    Insufficient evidence as to proximate cause in medical malpractice case. —

    Health care provider’s motion to set aside a medical malpractice verdict was granted as there was insufficient evidence upon which to submit to the jury the issue of proximate cause for the decedent’s death, because the administratrix failed to present expert testimony to support the proposition that the decedent had at least a substantial possibility of survival if he received earlier treatment, and was deprived of this chance of survival by the negligence of the health care provider. Auer v. Baker, 64 Va. Cir. 483, 2004 Va. Cir. LEXIS 175 (Norfolk June 24, 2004).

    Punitive damages set aside but not compensatory damages. —

    Court affirmed compensatory damages award against workmen but set aside punitive damages award since there was sufficient evidence to support compensatory damages but not willful and wanton disregard of plaintiff’s rights to support punitive damages, which were to be allowed only in cases involving the most egregious conduct. There was evidence that the workmen performed work in an unworkmanlike manner and were poor businessmen; however, there was no evidence of a willful and wanton disregard of the plaintiff’s rights. Whitley v. Fisher, 2001 Va. Cir. LEXIS 537 (Nelson County Aug. 24, 2001).

    Massie rule not applicable. . —

    Driver’s § 8.01-430 motion to set aside a verdict against her in a passenger’s personal injury suit, arising out of a collision between the vehicle in which the passenger was riding and another car, was denied. The Massie rule did not apply as the passenger’s testimony that she did not see any oncoming traffic before the driver made a left turn did not establish that the driver could not have seen the oncoming vehicle and, thus, did not disprove the driver’s negligence. Simpkins v. Espinoza, 72 Va. Cir. 561, 2007 Va. Cir. LEXIS 159 (Norfolk Mar. 13, 2007).

    Motion to set aside granted. —

    Motion to set aside a verdict for the homeowners under § 8.01-430 was granted as: (1) the overwhelming evidence showed that the owners only contracted with the limited liability companies, and not member two individually; (2) both contracts, all of the change orders and the payments, with the exception of one check, noted the limited liability companies as parties or payees; (3) member two did not benefit personally from a check made payable to him; (4) there was no evidence that member two acted in any capacity other than as an agent for the limited liability companies when dealing with the owners; and (5) member two was not a proper party to the case under §§ 13.1-1019 and 13.1-1020 . Horne v. Eco-Logic Constr., 85 Va. Cir. 106, 2012 Va. Cir. LEXIS 68 (Chesterfield County July 2, 2012).

    Employer’s motion to set aside the verdict was granted because the evidence was insufficient to support the verdict in favor of an employee on his actual fraud claim; the employee did not offer clear and convincing evidence that the employer misrepresented a material fact, that the employer’s misrepresentation was made with the intent that he rely upon it, that he relied upon the misrepresentation, and that he was damaged as a proximate result of the misrepresentation. Williams v. Quality Plus Servs., 94 Va. Cir. 11, 2016 Va. Cir. LEXIS 209 (Chesterfield County June 8, 2016).

    Although the evidence presented at trial was insufficient to support the jury’s damages award, the verdict was set aside and judgment was entered pursuant to § 8.01-430 where the evidence showed needed floor, subfloor, and porch repairs, as well as porch column replacement, and thus, the homeowners were entitled to $3,900 in damages. Bessant v. Dey St. Props., LLC, 94 Va. Cir. 493, 2016 Va. Cir. LEXIS 180 (Norfolk Nov. 21, 2016).

    Motion to set aside the jury verdict in favor of a corporation was granted as to the personal liability of the sole member of a limited liability company (LLC) because the corporation failed to present any credible evidence to support the argument that the LLC was merely the member’s alter ego; there was no evidence of commingling funds, or use of the corporate structure to perpetrate a fraud, to use the corporate structure to mask wrongs or to facilitate the commission of illegal acts. Solentus, Inc. v. Lam, 95 Va. Cir. 428, 2017 Va. Cir. LEXIS 77 (Fairfax County May 4, 2017).

    Verdict amount in favor of a corporation had to be reduced because the ad damnum clause was improperly pleaded, and the circuit court could not award damages beyond the only ascertainable amount proffered in the pleadings; stating “in excess of” does not state an amount, it does not provide a total number or quantity, nor even a specific range, but rather a floor. Solentus, Inc. v. Lam, 95 Va. Cir. 428, 2017 Va. Cir. LEXIS 77 (Fairfax County May 4, 2017).

    Verdict in favor of a hotel guest in a premises liability case against the hotel was set aside because, (1) once the guest’s expert’s testimony was stricken, no evidence supported the guest’s theory of recovery, and (2) there was no evidence that the hotel had constructive notice of a hazard or otherwise failed to exercise reasonable care. McFadden v. Richmond Hotel Partners, LP, 96 Va. Cir. 15, 2017 Va. Cir. LEXIS 302 (Richmond May 26, 2017).

    Trial court found that it was appropriate to set aside a jury’s verdict and issue a judgment notwithstanding the verdict because the court found that jury verdict in favor of a conservation group that sought specific performance of a contract and the jury’s answer to interrogatories were a plain deviation from right and justice as the other party to the contract was not liable for breach of contract in the case, in that the contract had expired by its terms, and in effect left no contract to breach. Rockbridge Area Conservation Council v. Va. Outdoors Found., 98 Va. Cir. 173, 2018 Va. Cir. LEXIS 22 (Rockbridge County Feb. 23, 2018).

    Motion to set aside denied. —

    Owners’ association’s motion to set aside a jury’s verdict on its breach of contract claim was denied because the jury found that a limited liability company did not breach its contract with the owners’ association by paying its assessments into an unauthorized bank account set up by a separate corporation. Gordon Props., LLC v. First Owners' Ass'n of Forty Six Hundred Condo., Inc., 79 Va. Cir. 683, 2009 Va. Cir. LEXIS 33 (Alexandria Apr. 3, 2009).

    Motion to set aside the jury verdict in favor of a corporation was denied because the corporation successfully proved that a non-solicitation agreement was not overly broad; the agreement’s prohibitions were tempered by language limiting the restraint to the customers with whom the limited liability company was working while under contract for the corporation. Solentus, Inc. v. Lam, 95 Va. Cir. 428, 2017 Va. Cir. LEXIS 77 (Fairfax County May 4, 2017).

    Motion to set aside the jury verdict in favor of a corporation was denied because there was more than sufficient credible evidence to sustain a jury finding of causation and lost profits; the corporation presented evidence conveying the similar nature of the work performed, and the profits it would have obtained had it billed for the work. Solentus, Inc. v. Lam, 95 Va. Cir. 428, 2017 Va. Cir. LEXIS 77 (Fairfax County May 4, 2017).

    Because the court found that the jury was presented with sufficient evidence of a contractor’s knowledge regarding a bidder’s contract expectancy, and the testimony of the bidder’s president provided a sufficient basis to support the jury verdict award, the court found that the setting aside of the jury’s verdict was not appropriate. Heard Constr., Inc. v. Waterfront Marine Constr. Co., 98 Va. Cir. 67, 2018 Va. Cir. LEXIS 14 (Chesapeake Jan. 10, 2018).

    No basis for setting aside verdict. —

    Jury’s verdict awarding damages to plaintiff on its conversion claim was supported by sufficient evidence because there was evidence from which the jury could have concluded that defendant converted plaintiff’s kiosk by dealing with it as if it were its own and that defendant intended to convert the kiosk prior to time that defendant renovated and began using it. Thus, there was no basis for setting aside the verdict. Quick Serve Concepts, L.L.C. v. Cedar Fair, L.P., 83 Va. Cir. 59, 2011 Va. Cir. LEXIS 221 (Hanover County May 27, 2011).

    Article 2. Judgments by Confession.

    § 8.01-431. Judgment or decree by confession in pending suit.

    In any suit a defendant may, whether the suit is on the court docket or not, confess a judgment in the clerk’s office for so much principal and interest as the plaintiff may be willing to accept a judgment or decree for. The same shall be entered of record by the clerk in the order book and be as final and as valid as if entered in court on the day of such confession. The clerk shall record such judgment or decree and the date and time of the day at which the same was confessed. The lien of such judgment or decree shall run from the time such judgment is recorded on the judgment lien docket of the clerk’s office of the county or city in which land of the defendant lies.

    History. Code 1955, § 8-355; 1962, c. 388; 1977, c. 617; 2012, c. 802; 2014, c. 330.

    Cross references.

    As to docketing of judgments by confession, see § 8.01-449 .

    As to priority of liens, see § 8.01-459 .

    As to confession of judgment by surety, see § 49-28 .

    The 2012 amendments.

    The 2012 amendment by c. 802 substituted “whether the suit is” for “whether the suit be” near the beginning of the first sentence, and added the last sentence.

    The 2014 amendments.

    The 2014 amendment by c. 330 substituted “The clerk shall record such judgment or decree, and” for “And the clerk shall enter upon the margin of such book opposite where such judgment or decree is entered” in the third sentence; created the fourth sentence by substituting “The lien” for “and the lien”; and deleted the last sentence, which read “The clerk may require that a separate instrument be prepared setting forth the necessary information and shall record and index such instrument according to law.”

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1973-1974, see 60 Va. L. Rev. 1572 (1974).

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Demurrers, § 42.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Plaintiff must be willing to accept confession. —

    The plain terms of § 8.01-431 require that a plaintiff be willing to accept the amount of principal and interest for which a defendant is confessing judgment. Where a plaintiff did not accept the amount confessed, the case was not ended and the plaintiff was entitled to take a nonsuit when he was not allowed to increase the amount of damages in his ad damnum clause. AAA Disposal Servs. v. Eckert, 267 Va. 442 , 593 S.E.2d 260, 2004 Va. LEXIS 36 (2004).

    An underinsured motorist carrier has the right to file pleadings and take other actions allowable by law for injuries when the tortfeasor confesses judgment in an amount exceeding the applicable liability coverage. State Farm Mut. Auto. Ins. Co. v. Beng, 249 Va. 165 , 455 S.E.2d 2, 1995 Va. LEXIS 29 (1995).

    Section not applicable. —

    Where petitioner, an adult who was adopted as a child, appealed the denial of her petition to set aside the adoption, where the petition contained a signature purporting to be that of the adoptive father, and where the record also contained an affidavit, received by the trial court, after it had denied the petition, in which the adoptive father purported to consent to “annulling the adoptive order,” while this section allows a judgment to be entered upon confession, the provisions were not applicable to this case. In re Dwyer, 18 Va. App. 437, 445 S.E.2d 157, 10 Va. Law Rep. 1412, 1994 Va. App. LEXIS 335 (1994).

    II.Decisions Under Prior Law.

    Editor’s note.

    This and the following section expressly authorize the confession of a judgment in the clerk’s office in a pending suit or action. Deeds v. Gilmer, 162 Va. 157 , 174 S.E. 37 , 1934 Va. LEXIS 244 (1934).

    Judgment by confession has all attributes of other judgments. —

    Although no adjudication is in fact required in entering a judgment of confession without action, yet it has all the qualities, incidents and attributes of other judgments and it cannot be valid unless entered in a court which might lawfully have pronounced the same judgment in a contested action. Beazley v. Sims, 81 Va. 644 , 1886 Va. LEXIS 131 (1886).

    It is valid from the moment of the acceptance. Beazley v. Sims, 81 Va. 644 , 1886 Va. LEXIS 131 (1886).

    Substantial compliance with section is sufficient. —

    The provisions of this section with reference to judgments confessed in the clerk’s office are, for the most part, merely declaratory of the common law, and such judgments will be declared valid where there has been substantial compliance with this section. Saunders v. Lipscomb, 90 Va. 647 , 19 S.E. 450 , 1894 Va. LEXIS 37 (1894); Manson v. Rawlings, 112 Va. 384 , 71 S.E. 564 , 1911 Va. LEXIS 96 (1911) (see American Bank & Trust Co. v. National Bank, 170 Va. 169 , 196 S.E. 693 (1938)).

    No suit need be pending. —

    An office judgment confessed may be valid though no suit is pending against the defendant. Brockenbrough v. Brockenbrough, 72 Va. (31 Gratt.) 580, 1879 Va. LEXIS 23 (1879).

    And no process need have been issued or served. Shadrack v. Woolfolk, 73 Va. (32 Gratt.) 707, 1880 Va. LEXIS 93 (1880); Saunders v. Lipscomb, 90 Va. 647 , 19 S.E. 450 , 1894 Va. LEXIS 37 (1894).

    Lien begins at time of confession. —

    The holding that the lien of a judgment by confession begins on the first moment of the day on which it was confessed is expressly overruled by this section, and the lien begins at the time of confession. Hockman v. Hockman, 93 Va. 455 , 25 S.E. 534 , 1896 Va. LEXIS 96 (1896).

    Entry on order book may be made at any time. —

    If the entry of a judgment confessed in the office upon the order or minute book has not been made at the time of its confession, the clerk may make the entry at any time, and if he fails to do it, the court may at any time direct him to make the entry. Shadrack v. Woolfolk, 73 Va. (32 Gratt.) 707, 1880 Va. LEXIS 93 (1880).

    Failure to make entry does not invalidate judgment. —

    Judgment confessed in the clerk’s office, though no process appears to have been issued or served, and though the clerk has failed to enter it upon the order book or any other book in his office, and the only evidence of it is an unsigned memorandum endorsed on a declaration which seems to have been filed and the bond enclosed in the declaration, is a valid judgment and entitled to rank as such as against other creditors of the debtor. Shadrack v. Woolfolk, 73 Va. (32 Gratt.) 707, 1880 Va. LEXIS 93 (1880); Saunders v. Lipscomb, 90 Va. 647 , 19 S.E. 450 , 1894 Va. LEXIS 37 (1894).

    For provision as to entry is directory only. —

    The provision for entry of the judgment on the order book of the clerk is directory only, and, if in fact confessed, the judgment will be upheld though not entered on that or any other book in his office, but evidenced merely by authenticated memoranda of the clerk taking the confession. Manson v. Rawlings, 112 Va. 384 , 71 S.E. 564 , 1911 Va. LEXIS 96 (1911).

    Clerk may enter his own confession. —

    In entering a confession of judgment under this section, the clerk acts purely as a ministerial officer, and he may enter his own confession of judgment in favor of his creditor, and it will be valid. Smith v. Mayo, 83 Va. 910 , 5 S.E. 276 , 1887 Va. LEXIS 135 (1887).

    A person of weak understanding may confess judgment, in person or by attorney. Mason v. Williams, 17 Va. (3 Munf) 126, 1811 Va. LEXIS 128 (1811).

    One of joint defendants may confess. —

    One of several joint defendants in ejectment, from whom the others purchased, may confess judgment. Virginia & Tenn. Coal & Iron Co. v. Fields, 94 Va. 102 , 26 S.E. 426 , 1896 Va. LEXIS 148 (1896).

    Judgment may be confessed by attorney in fact. —

    A judgment may be confessed either in court or in the clerk’s office, by attorney-in-fact, though the attorney is not a lawyer. Insurance Co. v. Barley's Adm'r, 57 Va. (16 Gratt.) 363, 1863 Va. LEXIS 2 (1863).

    Power of attorney executed in name of partnership. —

    In the absence of proof of nonassent on the part of some of the members of a firm, a power of attorney to confess judgment executed by one partner in the firm name must be held when assailed collaterally; although the power is under seal, the seal being unnecessary. Alexander v. Alexander, 85 Va. 353 , 7 S.E. 335 , 1888 Va. LEXIS 42 (1888).

    Power authorizing confession “in any court,” “at any time,” is valid. —

    Where a power of attorney authorized confession of judgment “in any court” and “at any time,” a confession before a clerk under this warrant is valid; and as all the clerk’s proceedings in vacation are subject to the control of the court at the next term, the obligors are afforded all the protection they could have gotten from a confession in court. Walker v. Temple, 130 Va. 567 , 107 S.E. 720 , 1921 Va. LEXIS 176 (1921).

    CIRCUIT COURT OPINIONS

    Collateral attack on judgment by insurer. —

    Under §§ 8.01-431 and 8.01-449 , absent fraud or collusion, or lack of jurisdiction, an insurance company cannot collaterally attack a judgment entered by the parties to a lawsuit. Beckner v. Twin City Fire Ins. Co., 58 Va. Cir. 544, 2002 Va. Cir. LEXIS 175 (Roanoke June 27, 2002).

    No evidence of fraud or collusion. —

    Court could not enter summary judgment for the insurers in an action filed by an administratrix under an assignment of rights obtained in five previous wrongful death actions from a property manager, the defendant in the wrongful death actions, for the failure of the insurers to defend, and determine from the settlement documents that collusion existed in the settlement, even though the manager received $3,000 under the settlement agreement; there was no evidence that the parties to the wrongful death suits did not engage in an arm’s length negotiation, and there was no indication of actual or constructive fraud. Beckner v. Twin City Fire Ins. Co., 58 Va. Cir. 544, 2002 Va. Cir. LEXIS 175 (Roanoke June 27, 2002).

    § 8.01-432. Confession of judgment irrespective of suit pending.

    Any person being indebted to another person, or any attorney-in-fact pursuant to a power of attorney, may at any time confess judgment in the clerk’s office of any circuit court in this Commonwealth, whether a suit, motion or action be pending therefor or not, for only such principal and interest as his creditor may be willing to accept a judgment for, which judgment, when so confessed, shall be forthwith entered of record by the clerk in whose office it is confessed, in the proper order book of his court. Such judgment shall be as final and as binding as though confessed in open court or rendered by the court, subject to the control of the court in the clerk’s office of which the same shall have been confessed.

    History. Code 1950, § 8-356; 1977, c. 617.

    REVISERS’ NOTE

    The language “or any attorney-in-fact pursuant to a power of attorney,” has been inserted in former § 8-356.

    Law Review.

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Confessed judgment subject to finality rules. —

    Obtaining a judgment by confession pursuant to § 8.01-432 is an extraordinary remedy that permits a creditor to obtain an enforceable judgment against a debtor without the need to file suit or to establish any fact other than the existence of a valid instrument permitting the creditor to direct an attorney-in-fact to confess the judgment; when the creditor obtains a confessed judgment, that judgment is subject to the same rules governing all judgments, including the limitation imposed by Va. Sup. Ct. R. 1:1. Safrin v. Travaini Pumps USA, Inc., 269 Va. 412 , 611 S.E.2d 352, 2005 Va. LEXIS 46 (2005).

    Trial court erred in modifying confessed judgment. —

    Trial court erred in entering judgment for a creditor for attorney’s fees more than 21 days after the creditor confessed a judgment against a debtor under § 8.01-432 ; the creditor did not assert a claim for liquidated attorney’s fees at the time that it confessed the judgment and it became bound by the finality of that judgment under Va. Sup. Ct. R. 1:1. Safrin v. Travaini Pumps USA, Inc., 269 Va. 412 , 611 S.E.2d 352, 2005 Va. LEXIS 46 (2005).

    Trial court erred in modifying confessed judgment. —

    It was error to summarily reduce the amount of a confessed judgment without a creditor’s consent because once the trial court granted the debtor’s motion to reduce the judgment, the matter had to be set down for a full trial on the merits of the creditor’s claim as if the creditor had filed an action at law on the underlying note, as there was no statutory distinction between a motion to reduce a confessed judgment and a motion to set aside a confessed judgment. Catjen, LLC v. Hunter Mill West, L.C., 295 Va. 625 , 817 S.E.2d 139, 2018 Va. LEXIS 96 (2018).

    II.Decisions Under Prior Law.

    Editor’s note.

    Judgment may be confessed on contingent obligation. —

    A director of a bank executed a note to create a reserve out of which any loss to the assets of the bank might be made good during a period of three years, and authorized a confession of judgment upon it. It was held that upon the happening of the contingency anticipated at the time of the execution of the note, that is, when the assets of the bank were found insufficient to cover its total obligation, the director’s obligation became definite and certain in such form that the holder had a right to maintain an action of debt thereon, and the director was therefore “indebted to another” within the meaning of this section, and judgment could be confessed upon the note. Spady v. Farmers & Merchants Trust Bank, 168 Va. 143 , 190 S.E. 173 , 1937 Va. LEXIS 214 (1937).

    Entry in common law order book is not essential to validity of judgment. —

    It was contended that the “proper order book” designated in this section meant the “Common Law Order Book,” that the duty of the clerk to enter the judgment in the “Common Law Order Book” was mandatory and essential to the validity of the judgment, and that a confessed judgment which was entered by the clerk in a book labeled “Common Law Order Book — Confession of Judgment — No. 1,” was void. It was held that there was no merit in this contention, since, if the legislature had intended that the failure of the clerk to make the entry should render the confessed judgment void, this section would have said so plainly, in view of prior decisions of the Supreme Court that a similar provision in § 8.01-431 relating to judgments confessed in vacation was merely directory. The failure of this section to invalidate the judgment by reason of the clerk’s not making the required entry becomes all the more significant when we consider that in § 8.01-441 the legislature has expressly said that a judgment confessed by virtue of a warrant or power of attorney which does not comply with this article shall be invalid. American Bank & Trust Co. v. National Bank, 170 Va. 169 , 196 S.E. 693 , 1938 Va. LEXIS 175 (1938).

    A defendant confessing judgment is estopped, in the absence of fraud, to question its validity on account of irregularities to which he did not object, or to dispute any facts set forth in the confession, and if, after the entry of the judgment, he ratifies or accepts it, or acquiesces in it, he is estopped to deny the authority on which it was confessed or otherwise to impeach its validity. Johnson v. Alvis, 159 Va. 229 , 165 S.E. 489 , 1932 Va. LEXIS 185 (1932).

    And defendant’s creditor or trustee in bankruptcy may be estopped. —

    A creditor of the judgment debtor, having recognized the validity of a judgment by confession by seeking, in interpleader proceedings, to obtain the balance of the proceeds derived from the sale of the debtor’s property under execution of the judgment, was estopped to attack the judgment on the grounds that it was not obtained in compliance with this section. Likewise, the judgment debtor’s trustee in bankruptcy, having been a party to the interpleader proceedings and acquiesced in and agreed to a disbursement of the fund by the court, was estopped to set aside the judgment. Smith v. Litton, 167 Va. 263 , 188 S.E. 214 , 1936 Va. LEXIS 301 (1936).

    But decision is not res adjudicata in bankruptcy court. —

    The decision of the Supreme Court that a trustee in bankruptcy was estopped to attack a judgment confessed by an officer of the bankrupt corporation under this section, on the ground that the judgment was irregular and void on its face, was not res adjudicata so as to prevent the federal district court from examining the judgment and disallowing or subordinating it as a claim in bankruptcy proceedings. Pepper v. Litton, 308 U.S. 295, 60 S. Ct. 238, 84 L. Ed. 281, 1939 U.S. LEXIS 971 (1939).

    CIRCUIT COURT OPINIONS

    Judgment set aside for failure to strictly comply with terms of power of attorney. —

    Under the clear language of a guaranty as to the power of the attorney-in-fact to confess judgment, the lender as attorney-in-fact was required to file an affidavit simultaneously with the confession of judgment. Because the attorney-in-fact did not follow the express language of the terms of the power given, the confessed judgment was a nullity. Boothe v. First Va. Cmty. Bank, 82 Va. Cir. 477, 2011 Va. Cir. LEXIS 55 (Fairfax County Apr. 8, 2011).

    CASE NOTES

    Confessed judgment void ab initio. —

    Confessed judgment that was entered by the attorney-in-fact for a debtor and in favor of a creditor was void ab initio because the court did not have jurisdiction to accept the confessed judgment as the confessed judgment was erroneous in that it was for an amount that exceeded that provided for in the promissory note between the debtor and the creditor. Forge LLC v. Pearson, 101 Va. Cir. 221, 2019 Va. Cir. LEXIS 35 (Fairfax County Feb. 28, 2019).

    § 8.01-433. Setting aside judgments confessed under § 8.01-432.

    Any judgment confessed under the provisions of § 8.01-432 may be set aside or reduced upon motion of the judgment debtor made within twenty-one days following notice to him that such judgment has been entered against him, and after twenty-one days notice to the judgment creditor or creditors for whom the judgment was confessed, on any ground which would have been an adequate defense or setoff in an action at law instituted upon the judgment creditor’s note, bond or other evidence of debt upon which such judgment was confessed. Whenever any such judgment is set aside or modified the case shall be placed on the trial docket of the court, and the proceedings thereon shall thereafter be the same as if an action at law had been instituted upon the bond, note or other evidence of debt upon which judgment was confessed. After such case is so docketed the court shall make such order as to the pleadings, future proceedings and costs as to the court may seem just.

    History. Code 1950, § 8-357; 1977, c. 617.

    REVISERS’ NOTE

    The language “creditor or creditors for whom the judgment was confessed” has been inserted in former § 8-357 for clarification. The judgment debtor must give the judgment creditors 21 days’ notice that he will file a motion to set aside or reduce the confessed judgment.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1973-1974, see 60 Va. L. Rev. 1572 (1974).

    CASE NOTES

    Reduction of confessed judgments. —

    It was error to summarily reduce the amount of a confessed judgment without a creditor’s consent because once the trial court granted the debtor’s motion to reduce the judgment, the matter had to be set down for a full trial on the merits of the creditor’s claim as if the creditor had filed an action at law on the underlying note, as there was no statutory distinction between a motion to reduce a confessed judgment and a motion to set aside a confessed judgment. Catjen, LLC v. Hunter Mill West, L.C., 295 Va. 625 , 817 S.E.2d 139, 2018 Va. LEXIS 96 (2018).

    CIRCUIT COURT OPINIONS

    Authority to enter judgment. —

    The confessed judgment under § 8.01-433 , entered against a debtor, was void because the court had no authority to enter it; under § 8.01-433.1 , a notice of confession of judgment provision was an absolute requirement for the entry of a confessed judgment based on a confession of judgment provision contained in a note and because the notice was not contained in the note signed by the debtor, the court lacked subject matter jurisdiction to enter the confessed judgment. Citibank, N.A. v. Aburish, 59 Va. Cir. 58, 2002 Va. Cir. LEXIS 328 (Richmond Apr. 8, 2002).

    Notice requirements. —

    There were two prongs to the service and notice requirements for a confession of judgment: (1) service had to be effected by the clerk under § 8.01-438 within 60 days or the judgment was void; and (2) the defendant debtor had 21 days from receipt of the notice to notify the creditor of its intent to exercise its rights under § 8.01-433 and move the court to have the confessed judgment set aside or reduced. Mt. Empire Ventures, L.L.C. v. Bal, 73 Va. Cir. 198, 2007 Va. Cir. LEXIS 60 (Richmond Apr. 3, 2007).

    Timeliness of motion. —

    Individuals’ motion to strike a confession of judgment on a company’s claim to recover on a note was granted where their motion was filed within 21 days of receiving notice of the entry of the confessed judgment and thus, the motion was timely under § 8.01-433 . Mt. Empire Ventures, L.L.C. v. Bal, 73 Va. Cir. 198, 2007 Va. Cir. LEXIS 60 (Richmond Apr. 3, 2007).

    Because a confessed judgment that was entered by the attorney-in-fact for a debtor and in favor of a creditor was void ab initio — as the court did not have jurisdiction to accept the confessed judgment in that it was erroneously entered for an amount that exceeded that provided for in the promissory note between the debtor and the creditor — the debtor’s motion to vacate was not untimely filed after the 21-day time limit. Forge LLC v. Pearson, 101 Va. Cir. 221, 2019 Va. Cir. LEXIS 35 (Fairfax County Feb. 28, 2019).

    Motion to set aside confessed judgment. —

    General contractor’s motion for reconsideration of an order granting a motion to set aside a confessed judgment was denied because the promissory note and confessed judgment agreement the contractor entered into with a subcontractor and its owners specifically stated that the parties’ settlement agreement was incorporated therein by reference; therefore, any defense to the settlement agreement would be a defense against the promissory note and confessed judgment agreement, and so long as the subcontractor and owners sufficiently pleaded the elements of fraud, the confessed judgment could be set aside. Fru-Con Constr. Corp. v. Araujo Constr. Co., 78 Va. Cir. 132, 2009 Va. Cir. LEXIS 4 (Fairfax County Feb. 18, 2009).

    Defendant did not demonstrate that he would have an adequate defense at law sufficient to set aside a confessed judgment against him under § 8.01-433 . Because the allonge to the confessed judgment promissory note did not come into existence due to either the failure of a condition precedent or a failure of consideration, the parties were bound by the terms of the original note. MDDC, LLC v. Lawrence, 92 Va. Cir. 326, 2016 Va. Cir. LEXIS 31 (Fairfax County Feb. 25, 2016).

    Purchaser’s motion to set aside confessed judgment was granted where her complaint alleging fraud and fraudulent inducement applied to the overall purchase of the business, including a confessed promissory note that did not explicitly incorporate the stock purchase or security agreements, and thus, the purchaser had met the requirements of this section. Lim v. Venketapathi, 97 Va. Cir. 67, 2017 Va. Cir. LEXIS 296 (Fairfax County Oct. 4, 2017).

    Judgment set aside for failure to strictly comply with terms of power of attorney. —

    Under the clear language of a guaranty as to the power of the attorney-in-fact to confess judgment, the lender as attorney-in-fact was required to file an affidavit simultaneously with the confession of judgment. Because the attorney-in-fact did not follow the express language of the terms of the power given, the confessed judgment was a nullity. Boothe v. First Va. Cmty. Bank, 82 Va. Cir. 477, 2011 Va. Cir. LEXIS 55 (Fairfax County Apr. 8, 2011).

    Motion granted. —

    Debtors’ motion to set aside a confession of judgment was granted, where it presented an adequate defense that the meaning of the term “proceeds” in a settlement agreement with the creditor was ambiguous, and did not define what was meant by the same, but the tender of stock as proceeds was just as good as tendering cash to satisfy the obligations under the note. Ali v. TeleScience Int'l, Inc., 64 Va. Cir. 60, 2004 Va. Cir. LEXIS 16 (Fairfax County Feb. 5, 2004).

    Because it was not clear whether trier of fact would reject debtor’s defense of accord and satisfaction as to creditor’s confessed judgment against him on a promissory note, debtor’s motion that confessed judgment be set aside was granted. Burdette Smith Group, P.C. v. Elza, 65 Va. Cir. 314, 2004 Va. Cir. LEXIS 215 (Fairfax County Aug. 2, 2004).

    Motion to set aside a confessed judgment was granted because plaintiff’s evidence of debt did not include the statutory language required under § 8.01-433.1 . As such, the court lacked jurisdiction to enter the confessed judgment and the order was void ab initio. Superior Paving Corp. v. Bud & The Boyz Constr., 79 Va. Cir. 372, 2009 Va. Cir. LEXIS 121 (Fairfax County Oct. 5, 2009).

    § 8.01-433.1. Notice of confession of judgment provision.

    No judgment shall be confessed upon a note, bond, or other evidence of debt pursuant to a confession of judgment provision contained therein which does not contain a statement typed in boldface print of not less than eight point type on its face:

    IMPORTANT NOTICE

    THIS INSTRUMENT CONTAINS A CONFESSION OF JUDGMENT PROVISION WHICH CONSTITUTES A WAIVER OF IMPORTANT RIGHTS YOU MAY HAVE AS A DEBTOR AND ALLOWS THE CREDITOR TO OBTAIN A JUDGMENT AGAINST YOU WITHOUT ANY FURTHER NOTICE.

    This section shall only apply to notes, bonds, or other evidences of debt containing confession of judgment provisions entered into after January 1, 1993.

    History. 1992, c. 396.

    Law Review.

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, see “Civil Practice and Procedure,” 26 U. Rich. L. Rev. 679 (1992).

    CIRCUIT COURT OPINIONS

    Authority to enter judgment. —

    The confessed judgment under § 8.01-433 , entered against a debtor, was void because the court had no authority to enter it; under § 8.01-433.1 , a notice of confession of judgment provision was an absolute requirement for the entry of a confessed judgment based on a confession of judgment provision contained in a note and because the notice was not contained in the note signed by the debtor, the court lacked subject matter jurisdiction to enter the confessed judgment. Citibank, N.A. v. Aburish, 59 Va. Cir. 58, 2002 Va. Cir. LEXIS 328 (Richmond Apr. 8, 2002).

    Motion to set aside a confessed judgment was granted because plaintiff’s evidence of debt did not include the statutory language required under § 8.01-433.1 . As such, the court lacked jurisdiction to enter the confessed judgment and the order was void ab initio. Superior Paving Corp. v. Bud & The Boyz Constr., 79 Va. Cir. 372, 2009 Va. Cir. LEXIS 121 (Fairfax County Oct. 5, 2009).

    § 8.01-434. Lien of such judgments.

    The clerk shall record in the proper book any judgment confessed under the provisions of § 8.01-432 and the day and hour when the same was confessed, and the lien thereof shall attach and be binding from the time such judgment is recorded on the judgment lien docket of the clerk’s office of the county or city in which land of the defendant lies. If the credit was extended for personal, family or household purposes, the judgment shall not be a lien against the real estate of the obligor or the basis of obtaining execution against his personal property until the expiration of the 21-day period allowed the judgment debtor as set forth in § 8.01-433 . In the event the judgment debtor files a motion or other pleading within such 21-day period, the judgment shall not be a lien against such real estate or its basis of execution against personal property until an order to that effect is entered by the court. It will be presumed that the obligation is for personal, family or household purposes if the debtor is a natural person, unless the plaintiff or someone on his behalf makes oath or makes out and files an affidavit that the obligation was not for such purposes, or the obligation for which judgment is confessed recites that it is for other purposes.

    History. Code 1950, § 8-358; 1962, c. 388; 1970, c. 395; 1977, c. 617; 1986, c. 523; 2014, c. 330.

    REVISERS’ NOTE

    The phrases “allowed the judgment debtor as . . .” and “. . . other evidence of debt . . .” have been inserted in former § 8-358.

    The 2014 amendments.

    The 2014 amendment by c. 330 deleted “enter on the margin of the” following “The clerk shall,” substituted “in the proper book” for “of,” “21-day” for “twenty-one-day” twice, and made a minor stylistic change.

    Law Review.

    For survey of recent legislation on liens — confession of judgment, see 5 U. Rich. L. Rev. 197 (1970).

    For survey of Virginia commercial law for the year 1969-1970, see 56 Va. L. Rev. 1387 (1970).

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, §§ 50, 60, 183.

    CASE NOTES

    Lien runs from time of confession. —

    It will be observed that under the language of § 8.01-431 “the lien of the said judgment or decree shall run only from the time of day of the confession.” The language in the former versoin of this section is to the same effect when it provides that “the lien thereof shall attach and be binding from the time of such confession so entered.” In the latter instance the lien runs “from the time of such confession,” and the words “so entered” are merely descriptive of the clerk’s ministerial duties with reference to recording the judgment. American Bank & Trust Co. v. National Bank, 170 Va. 169 , 196 S.E. 693 , 1938 Va. LEXIS 175 (1938) (decided under prior law).

    § 8.01-435. Who may confess judgment.

    Confession of judgment under the provisions of § 8.01-432 may be made either by the debtor himself or by his duly constituted attorney-in-fact, acting under and by virtue of a power of attorney duly executed and acknowledged by him as deeds are required to be acknowledged, before any officer or person authorized to take acknowledgments of writings to be recorded in this Commonwealth, provided, however, that any power of attorney incorporated in, and made part of, any note or bond authorizing the confession of judgment thereon against the makers and endorsers in the event of default in the payment thereof at maturity need not be acknowledged, but shall specifically name therein the attorney or attorneys or other person or persons authorized to confess such judgment and the clerk’s office in which the judgment is to be confessed.

    The payee, obligee, or person otherwise entitled to payment under any note or bond may appoint a substitute for any attorney-in-fact authorized to confess judgment that is specifically named in such note or bond, by specifically naming the substitute attorney-in-fact in an instrument appointing the substitute attorney-in-fact. Such instrument shall be recorded and indexed according to law in the clerk’s office where judgment is to be confessed by the terms of such note or bond, and a clerk’s fee for such recording shall be paid as set out in § 17.1-275 . If such note or bond does not contain a notice informing the debtor that a substitute attorney-in-fact may be appointed by the payee, obligee, or person otherwise entitled to payment under the note or bond, then within 10 days after the instrument appointing the substitute attorney-in-fact is recorded, the person appointing the substitute attorney-in-fact shall send notice of the appointment by certified mail to the debtor’s last known address as it appears in the records of the person appointing the substitute attorney-in-fact.

    History. Code 1950, § 8-359; 1977, c. 617; 2012, cc. 31, 118.

    REVISERS’ NOTE

    The phrase “power of attorney” has been substituted for the word “warrant” in former § 8-359.

    The 2012 amendments.

    The 2012 amendments by cc. 31 and 118 are identical, and added the second paragraph.

    Law Review.

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    CASE NOTES

    Strict construction of section. —

    Given the considerable authority that is created by the power to confess judgment, this section should be strictly construed to prevent abuse. Benton Land Fund v. Nvmercure Ltd. Partnership, 849 F. Supp. 1123, 1994 U.S. Dist. LEXIS 5952 (E.D. Va. 1994).

    Power of attorney need not be under seal. —

    A warrant or power of attorney to confess judgment embodied in a note and made a part of the note is not required by this section to be executed under seal. Johnson v. Alvis, 159 Va. 229 , 165 S.E. 489 , 1932 Va. LEXIS 185 (1932) (see Bank of Chatham v. Arendall, 178 Va. 183 , 16 S.E.2d 352 (1941)) (decided under prior law).

    Authority to confess judgment in the clerk’s office must be strictly pursued, but in absence of proof to the contrary the presumption is that the agent performed his duty in the authorized manner. Bank of Chatham v. Arendall, 178 Va. 183 , 16 S.E.2d 352, 1941 Va. LEXIS 155 (1941) (decided under prior law).

    Warrant of authority in note evidencing contingent obligation. —

    Where the obligation of the maker of a note was contingent, the ancient, accepted and regular procedure, by one of the common-law actions or by notice of motion, would have been preferable to the confession of judgment on the note by virtue of a warrant of authority made of part thereof. However, in view of the former version of this section, and the fact that the final result of the litigation on the note in question would have been the same regardless of what form of action the holder had instituted against the maker, the confession of judgment did not constitute reversible error. Spady v. Farmers & Merchants Trust Bank, 168 Va. 143 , 190 S.E. 173 , 1937 Va. LEXIS 214 (1937) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Lost note. —

    Because plaintiff submitted a copy of the note, plaintiff met the statutory requirements necessary to enforce the provision of a lost note; the affidavit averred that plaintiff was in possession of the original note and was entitled to enforce it when loss of possession occurred, and plaintiff could not reasonably obtain the note because its whereabouts could not be determined; the statute did not require that those facts be proven by affidavit, let alone by an affidavit signed by plaintiff, and a true and accurate copy of the instrument produced in the normal course of business was given the same effect as an original. Rolston v. Quick, 107 Va. Cir. 349, 2021 Va. Cir. LEXIS 101 (Loudoun County Mar. 16, 2021).

    § 8.01-436. Form of confession of judgment.

    On the presentation of any such power of attorney as is mentioned in § 8.01-435 by any of the persons therein named as attorney-in-fact, or on the personal appearance of the debtor and the expression by him of his desire to confess such judgment, the clerk of the court mentioned in such power of attorney, or before whom such debtor shall so appear, shall draw and require the attorney-in-fact so appearing, or the debtor, as the case may be, to sign a confession of judgment, which shall be in form substantially as follows:

    “Virginia: In the clerk’s office of the . . . . . . . . . . . . . . . . . . court of the of , I, (or we) A.B., (or A.B. and C.D., etc.) hereby acknowledged myself (or ourselves) to be justly indebted to, and do hereby confess judgment in favor of (name of creditor) in the sum of . . . . . . . . . dollars ($. . . . . . . .) with interest thereon from the . . . . . . . . . . . . day of . . . . . . . . . ., two thousand . . . . . . . . . . . ., until paid, and the cost of this proceeding (including the attorney’s fees and collection fees provided for in the instrument on which the proceeding is based) hereby waiving the benefit of my (or our) homestead exemptions as to the same, provided the instrument on which the proceeding is based carries such homestead waiver. Given under my (or our) hand, this . . . . . . . . . day of . . . . . . . . . . . . . . . . . ., two thousand and . . . . . . . . . . . . . . . . . . (Signatures) or, if by an attorney-in-fact, signatures and seals of debtors, By . . . . . . . . . . . . . . . . . . . . . . . . . . . . . his (or their) attorney-in-fact.”

    Click to view

    History. Code 1950, § 8-360; 1977, c. 617.

    REVISERS’ NOTE

    The word “warrant” has been replaced with the phrase “power of attorney” in former § 8-360.

    Law Review.

    For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973).

    CASE NOTES

    Substantial compliance with section is sufficient. —

    The form of a confession of judgment failed to comply with the form set out in the former version of this section in the following particulars: (1) The name of the clerk’s office wherein the confession was made was not stated; (2) it failed to “acknowledge” that the debtors were “justly indebted to” the named creditors; and (3) the seals following the debtors’ signatures were omitted. It was held that the form of confession was substantially the same as that set out in this section and the variations therefrom did not invalidate the confession. Bank of Chatham v. Arendall, 178 Va. 183 , 16 S.E.2d 352, 1941 Va. LEXIS 155 (1941) (decided under prior law).

    Pleading requirements. —

    Confessed judgment was not void for failure to state a claim because confessed judgments were not subject to formal pleading requirements and the confessed judgment met the statutory standards as to form and substance. Forge LLC v. Pearson, 101 Va. Cir. 221, 2019 Va. Cir. LEXIS 35 (Fairfax County Feb. 28, 2019).

    § 8.01-437. Endorsement of clerk thereon.

    When a judgment is so confessed, the clerk shall endorse upon such confession, or attach thereto, his certificate in manner and form substantially as follows:

    “Virginia: In the clerk’s office of the . . . . . . . . . . . . . . . court of the of . . . . . . . . . . . . . . . . . The foregoing (or attached) judgment was duly confessed before me in my said office on the . . . . . . . . . . . . . . . . . . . day of , two thousand and . . . . . . . . . ., at . . . . . . . . . . . . . . . . . . . o’clock a.m., p.m. and has been duly entered of record in common-law order book number , page . . . . . . . . Teste: . . . . . . . . . . . . . . . . . . . clerk.”

    Click to view

    History. Code 1950, § 8-361; 1977, c. 617.

    CASE NOTES

    Failure of clerk to sign certificate does not invalidate judgment. —

    Failure of the clerk to sign a certificate of confession of judgment does not invalidate the judgment, since the duties of the clerk in connection with the entry and recordation of a confessed judgment are directory only and not mandatory. Bank of Chatham v. Arendall, 178 Va. 183 , 16 S.E.2d 352, 1941 Va. LEXIS 155 (1941) (decided under prior law).

    § 8.01-438. When judgment confessed by attorney-in-fact copy to be served on judgment debtor.

    If a judgment is confessed by an attorney-in-fact, it shall be the duty of the clerk within ten days from the entry thereof to cause to be served upon the judgment debtor a certified copy of the order so entered in the common-law order book, to which order shall be appended a notice setting forth the provisions of § 8.01-433 . The officer who serves the order shall make return thereof within ten days after service to the clerk. The clerk shall promptly file the order with the papers in the case. The failure to serve a copy of the order within sixty days from the date of entry thereof shall render the judgment void as to any debtor not so served.

    Service of a copy of the order on a nonresident judgment debtor by an officer of the county or city of his residence, authorized by law to serve processes therein, or by the clerk of the court sending a copy of the order by registered or certified mail to such nonresident judgment debtor at his last known post-office address and the filing of a certificate with the papers in the case showing that such has been done or of a receipt showing the receipt of such letter by such nonresident judgment debtor, shall be deemed sufficient service thereof for the purposes of this section.

    History. Code 1950, § 8-362; 1972, c. 611; 1976, c. 617; 1988, c. 420.

    REVISERS’ NOTE

    The phrase “registered mail” in former § 8-362 has been changed to “certified mail” with respect to service on the nonresident judgment debtor.

    CASE NOTES

    This section clearly contemplates a valid signature on the note or bond appointing an attorney-in-fact and authorizing the confession. Pate v. Southern Bank & Trust Co., 214 Va. 596 , 203 S.E.2d 126, 1974 Va. LEXIS 185 (1974) (decided under prior law).

    The entire procedure for confession of judgment by an attorney-in-fact is predicated upon, and presupposes, a valid authorization in a note or bond containing the cognovit clause. Without such authorization the attorney-in-fact is without authority to act and the court is without jurisdiction to enter judgment. Pate v. Southern Bank & Trust Co., 214 Va. 596 , 203 S.E.2d 126, 1974 Va. LEXIS 185 (1974) (decided under prior law).

    A person cannot be held accountable for a consent judgment which was obtained by virtue of a forged signature to a power of attorney. Pate v. Southern Bank & Trust Co., 214 Va. 596 , 203 S.E.2d 126, 1974 Va. LEXIS 185 (1974) (decided under prior law).

    Service requirement waived. —

    Debtors waived any objection to the service of a confessed judgment by agreeing in a Forbearance Agreement to appoint an attorney-in-fact to confess judgment against them and by ratifying and confirming the acts of the attorney-in-fact as if done by themselves. Agnew v. United Leasing Corp., 680 Fed. Appx. 149, 2017 U.S. App. LEXIS 3140 (4th Cir. 2017).

    Void confessed judgment. —

    Provisions of the statute are clearly intended to afford a debtor a limited opportunity to have a day in court to assert a defense to a creditor’s claim; those provisions are clearly self-executing. Westlake Legal Grp. v. Flynn, 293 Va. 344 , 798 S.E.2d 187, 2017 Va. LEXIS 60 (2017).

    Record contained evidence of facts clearly sufficient to establish jurisdiction to consider and award sanctions to a client because a confessed judgment became void due to a failure to serve a certified copy on the client; thus, the attorney filed a suggestion in garnishment to divert the client’s wages in an effort to enforce a judgment that had been void by operation of law, and the circuit court’s authority to impose sanctions did not depend on the validity of the confessed judgment. Westlake Legal Grp. v. Flynn, 293 Va. 344 , 798 S.E.2d 187, 2017 Va. LEXIS 60 (2017).

    CIRCUIT COURT OPINIONS

    Notice requirements. —

    There were two prongs to the service and notice requirements for a confession of judgment: (1) service had to be effected by the clerk under § 8.01-438 within 60 days or the judgment was void; and (2) the defendant debtor had 21 days from receipt of the notice to notify the creditor of its intent to exercise its rights under § 8.01-433 and move the court to have the confessed judgment set aside or reduced. Mt. Empire Ventures, L.L.C. v. Bal, 73 Va. Cir. 198, 2007 Va. Cir. LEXIS 60 (Richmond Apr. 3, 2007).

    OPINIONS OF THE ATTORNEY GENERAL

    Service of copy of order on nonresident debtor. —

    Service under § 8.01-438 is sufficient if a foreign officer executes the same in accord with the law of the foreign jurisdiction. Thus, service by posting is sufficient if authorized under the law of the foreign jurisdiction. See opinion of Attorney General to The Honorable John T. Frey, Clerk, Circuit Court of Fairfax County, 14-085, 2016 Va. AG LEXIS 1 (2/19/16).

    A return marked “Not Found” is not an effectuation of service. See opinion of Attorney General to The Honorable John T. Frey, Clerk, Circuit Court of Fairfax County, 14-085, 2016 Va. AG LEXIS 1 (2/19/16).

    Service is sufficient if the clerk files a certificate of mailing with the case papers, even if the registered or certified mail receipt is not returned by the post office, or it is returned stating “not accepted” or “not at this address.” See opinion of Attorney General to The Honorable John T. Frey, Clerk, Circuit Court of Fairfax County, 14-085, 2016 Va. AG LEXIS 1 (2/19/16).

    § 8.01-439. Filing of records by clerk.

    Such confession and clerk’s certificate, together with the power of attorney if the confession be by an attorney-in-fact, and the note, bond or other obligation, if there be such, on which the judgment is based, shall be securely attached together by the clerk and filed by him among the records in his office.

    History. Code 1950, § 8-363; 1977, c. 617.

    § 8.01-440. Docketing and execution.

    The clerk shall forthwith docket such judgment in the current judgment lien docket in his office and shall issue execution thereon as he may be directed by the creditor therein named, or his assigns, in the manner prescribed by law.

    History. Code 1950, § 8-364; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-365 (Fees and costs) has been transferred to § 14.1-178.1.

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 182.

    CASE NOTES

    The object and purpose of docketing judgments is to give notice to purchasers for value and without notice of the real estate of the judgment debtor. It was not designed to protect other judgment creditors. American Bank & Trust Co. v. National Bank, 170 Va. 169 , 196 S.E. 693 , 1938 Va. LEXIS 175 (1938) (decided under prior law).

    And failure of clerk to “forthwith docket” does not invalidate judgment. —

    The failure of the clerk to “forthwith docket such judgment,” as required by this section, does not invalidate the judgment. American Bank & Trust Co. v. National Bank, 170 Va. 169 , 196 S.E. 693 , 1938 Va. LEXIS 175 (1938) (decided under prior law).

    § 8.01-441. When judgment confessed by virtue of power of attorney invalid.

    No judgment confessed in the office of the clerk of any circuit court in this Commonwealth, by virtue of a power of attorney, shall be valid, unless such power of attorney be in conformity with the provisions of this article.

    History. Code 1950, § 8-366; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 176.

    Article 3. When There Are Several Defendants.

    § 8.01-442. In joint actions on contract plaintiff, though barred as to some, may have judgment against others.

    In an action or motion, founded on contract, against two or more defendants, although the plaintiff may be barred as to one or more of them, yet he may have judgment against any other or others of the defendants, against whom he is not so barred.

    History. Code 1950, § 8-367; 1977, c. 617.

    Cross references.

    As to procedure in actions on contracts made by several persons, see § 8.01-30 .

    Michie’s Jurisprudence.

    For related discussion, see 3A M.J. Bonds, § 33.

    CASE NOTES

    Editor’s note.

    This section modifies the common-law rule that in all actions of contract the plaintiff must prove his contract against as many persons as he alleged it against, and that he must recover against all or none. New York, P. & N.R.R. v. Cromwell, 98 Va. 227 , 35 S.E. 444 , 1900 Va. LEXIS 30 (1900); Cahoon v. McCullock, 92 Va. 177 , 23 S.E. 225 , 1895 Va. LEXIS 101 (1895).

    It applies where defense is personal to some defendants. —

    This section applies to an action on a contract against two or more defendants, when the defense of some is personal to themselves, though the defense is that they never were parties to the contract sued on, as non est factum. Bush v. Campbell, 67 Va. (26 Gratt.) 403, 1875 Va. LEXIS 27 (1875); McIntyre v. Smyth, 108 Va. 736 , 62 S.E. 930 , 1908 Va. LEXIS 93 (1908).

    But not defense going to right of recovery. —

    This section does not apply where one of several joint defendants alone pleads matter which is not merely personal to himself, but which goes to the plaintiff’s right of recovery against all the defendants. In such a case, if the plea is good, judgment cannot be rendered against any of the defendants. Schofield v. Palmer, 134 F. 753, 1904 U.S. App. LEXIS 5176 (C.C.D. Va. 1904).

    Nor where nothing in record shows that defense is personal. —

    This section has no application in an action against two who file a joint plea of non assumpsit, where the plaintiff has the action dismissed as to one, and asks leave to amend his declaration as to the other, and there is nothing to show that the defense relied on is personal to the former. Hence, it is not error to refuse such leave. Gibson v. Beveridge, 90 Va. 696 , 19 S.E. 785 , 1894 Va. LEXIS 46 (1894).

    There may be judgments against different defendants at different times. —

    Under this section there may be a judgment in favor of some of the defendants at one time, and against others at another. Bush v. Campbell, 67 Va. (26 Gratt.) 403, 1875 Va. LEXIS 27 (1875); McIntyre v. Smyth, 108 Va. 736 , 62 S.E. 930 , 1908 Va. LEXIS 93 (1908).

    And default judgment against some defendants after discontinuance as to others. —

    Plaintiff brought an action of debt against F. and M. as late partners and makers of a negotiable note, and against C. and G. as indorsers. The case stood on the office judgment docket at the next term of the court, when F. filed his plea of nil debet, which was sworn to. On the motion of plaintiff, the cause was discontinued as to F. The other parties not appearing, there was a judgment by default against them. It was held that the judgment was a valid judgment against M., C. and G. Muse v. Farmers Bank, 68 Va. (27 Gratt.) 252, 1876 Va. LEXIS 20 (1876).

    And judgment barred against principal is not barred against surety. —

    Under this section and § 8.01-251 , where judgment has been recovered against a principal and his surety, no length of time short of the period prescribed by the act of limitations will bar the right of the creditor to enforce his judgment against the surety, or his estate, even though an action is barred as to the principal. Manson v. Rawlings, 112 Va. 384 , 71 S.E. 564 , 1911 Va. LEXIS 96 (1911).

    § 8.01-443. Joint wrongdoers; effect of judgment against one.

    A judgment against one of several joint wrongdoers shall not bar the prosecution of an action against any or all the others, but the injured party may bring separate actions against the wrongdoers and proceed to judgment in each, or, if sued jointly, he may proceed to judgment against them successively until judgment has been rendered against, or the cause has been otherwise disposed of as to, all of the defendants, and no bar shall arise as to any of them by reason of a judgment against another, or others, until the judgment has been satisfied. If there be a judgment against one or more joint wrongdoers, the full satisfaction of such judgment accepted as such by the plaintiff shall be a discharge of all joint wrongdoers, except as to the costs; provided, however, this section shall have no effect on the right of contribution between joint wrongdoers as set out in § 8.01-34 .

    History. Code 1950, § 8-368; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-443 changes the former law so that discharge of all joint tort-feasors, except as to costs, occurs only when one of multiple judgments has been fully satisfied and has been accepted as such by the plaintiff. “Satisfaction” is determined by case law and in an appropriate situation would include, besides full payment, an accord and satisfaction or a covenant not to sue supported by consideration. (See Shortt v. Hudson Supply Co., 191 Va. 306 , 60 S.E.2d 900 (1950). See also Dickenson v. Tabb, 208 Va. 184 , 156 S.E.2d 795 (1967) and Harris v. City of Roanoke, 179 Va. 1 , 18 S.E.2d 303 (1942). Right of contribution is preserved.

    Cross references.

    As to effect of release or covenant not to sue upon liability and contribution among joint tort-feasors, see § 8.01-35.1 .

    Law Review.

    For article, “Effect of Virginia Workmen’s Compensation Act Upon the Right of a Third-Party Tortfeasor to Obtain Contribution From an Employer Whose Concurrent Negligence Causes Employee’s Death or Injury,” see 13 U. Rich. L. Rev. 117 (1978).

    For comment “The Covenant Not to Sue: Virginia’s Effort to Bury the Common Law Rule Regarding the Release of Joint Tortfeasors,” see 14 U. Rich. L. Rev. 809 (1980).

    Michie’s Jurisprudence.

    For related discussion, see 8B M.J. Former Adjudication or Res Judicata, § 37.

    CASE NOTES

    Editor’s note.

    Some of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    Section changes the common law. —

    In England, and formerly in this jurisdiction, a judgment without satisfaction, against one tortfeasor operated as a release of all other tortfeasors liable for the same wrong. This rule was strictly applied from 1802, when Wilkes v. Jackson, 12 Va. (2 Hen. & M.) 355 (1808), was decided, until the adoption in 1919 of this section. McLaughlin v. Siegel, 166 Va. 374 , 185 S.E. 873 , 1936 Va. LEXIS 199 (1936).

    Plaintiff may elect whether he will prosecute judgment against joint tortfeasor. —

    Under this section plaintiff has the right to elect whether he will or will not prosecute a judgment against several joint tortfeasors, and has the right to await the trial and result of an action against another joint tortfeasor before deciding whether he will prosecute the first judgment by suing out execution thereon. Fitzgerald v. Campbell, 131 Va. 486 , 109 S.E. 308 , 1921 Va. LEXIS 40 (1921) (see Town of Waynesboro v. Wiseman, 163 Va. 778 , 177 S.E. 224 (1934)).

    But release of one joint tortfeasor releases all. —

    A release of one jointly liable for a wrong will operate as a release of all other wrongdoers liable for the same injury, and this is true even if the release itself contains a statement reserving the right of action against other wrongdoers. McLaughlin v. Siegel, 166 Va. 374 , 185 S.E. 873 , 1936 Va. LEXIS 199 (1936).

    The legislature did not intend to change this rule. —

    The fact that the General Assembly changed the general rule respecting the release of joint obligors, and left unimpaired the rule respecting joint wrongdoers, is persuasive that it was satisfied with and approved the law applicable to the release of joint wrongdoers. First & Merchants Nat'l Bank v. Bank of Waverly, 170 Va. 496 , 197 S.E. 462 , 1938 Va. LEXIS 205 (1938).

    Plaintiff may elect which joint tortfeasor he will seek to satisfy judgment against. —

    The effect of this section is that once a plaintiff in a personal injury action has obtained a judgment against several joint tortfeasors, the plaintiff has the right to elect against which tortfeasor he will seek to satisfy his judgment. Harleysville Mut. Ins. Co. v. Nationwide Mut. Ins. Co., 789 F.2d 272, 1986 U.S. App. LEXIS 24596 (4th Cir. 1986).

    CIRCUIT COURT OPINIONS

    Employee and employer considered one entity. —

    Because an employer was vicariously liable for the negligent acts of a doctor under the doctrine of respondeat superior, the doctor and the employer were considered as one entity for purposes of contribution under § 8.01-443 when the underlying medical malpractice judgment found them jointly and severally liable with a medical center. Maryview Med. Ctr. v. Chacko, 71 Va. Cir. 438, 2005 Va. Cir. LEXIS 315 (Suffolk Nov. 15, 2005).

    Default judgment against one party not a bar to proceeding against another. —

    In a subcontractor’s claim against a lessee to recover in quantum meruit, the subcontractor’s default judgment against the contractor for breach of contract had no impact on the quantum meruit claim; under § 8.01-443 , the subcontractor could pursue all its claims to judgment, although it could only collect one judgment. R. M. Harrison Mech. Corp. v. Decker Indus., Inc., 75 Va. Cir. 404, 2008 Va. Cir. LEXIS 273 (Hopewell Aug. 28, 2008).

    Insured’s discharge in bankruptcy. —

    While an insured’s discharge in bankruptcy did not operate as a release of the insured’s employee or insurer as contemplated in § 8.01-443 , entering default judgment against the employee would deny the insurer the rights guaranteed it by subsection F of § 38.2-2206. Moran v. Leach, 83 Va. Cir. 141, 2011 Va. Cir. LEXIS 224 (Hanover County June 30, 2011).

    § 8.01-444. Where new parties added; if some not liable, how judgment entered.

    If it shall appear at the trial that all the original defendants are liable, but that one or more of the other persons added under the provisions of § 8.01-5 are not liable, the plaintiff shall be entitled to judgment, or to verdict and judgment, as the case may be, against the defendants who appear liable, and such as are not liable shall have judgment and recover costs as against the plaintiff, who shall be allowed the same as costs against the defendants who cause them to be made parties.

    History. Code 1950, § 8-369; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 4A M.J. Conspiracy, § 12.

    Article 4. Distinction Between Term and Vacation Abolished.

    § 8.01-445. Distinction between term and vacation abolished; effect of time.

    The distinction of what a court may do in term as opposed to vacation is hereby abolished. The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it.

    History. 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-445 rewrites former §§ 8-370 through 8-372 to empower a court to operate in vacation as it does in term. Conforming amendments, eliminating references to “vacation,” have been made in various sections of Title 8.01.

    Michie’s Jurisprudence.

    For related discussion, see 4A M.J. Contempt, § 5.

    Article 5. Keeping of Docket Books; Execution Thereon; Disposal of Exhibits.

    § 8.01-446. Clerks to keep judgment dockets; what judgments to be docketed therein.

    The clerk of each court of every circuit shall keep in his office, in a well-bound book, or by microphotographic or electronic process allowed by § 17.1-240 , a judgment docket, in which he shall docket, without delay, any judgment for a specific amount of money rendered in his court, and shall likewise docket without delay any judgment for a specific amount of money rendered in this Commonwealth by any other court of this Commonwealth or federal court, when he shall be required so to do by any person interested, on such person delivering to him an authenticated legible abstract of it and also upon the request of any person interested therein, any such judgment rendered by a district court judge whose book has been filed in his office under the provisions of Title 16.1 or of which a legible abstract is delivered to him certified by the district court judge who rendered it; provided, that judgments docketed in the clerk’s office of the Circuit Court of the City of Williamsburg and the County of James City shall be docketed and indexed in one book. A specific judgment for money shall state that it is a judgment for money in a specific amount in favor of a named party, against a named party, with that party’s address, if known, and it shall further state the time from which the judgment bears interest. An order of restitution docketed pursuant to § 19.2-305.2 shall have the same force and effect as a specific judgment for money and shall state that it is an order of restitution in a specific amount in favor of a named party, against a named party, with that party’s address, if known, and it shall further state the time from which the judgment bears interest. If the clerk determines that an abstract is not legible, the clerk shall refuse to record it and shall return it to the person who tendered the abstract for recording. No judgment for assessments described in subsection A of § 17.1-275.5 or for the fees provided for by § 17.1-275.1 , 17.1-275.2 , 17.1-275.3 , 17.1-275.4 , 17.1-275.7 , 17.1-275.8 , 17.1-275.9 , 17.1-275.1 0, 17.1-275.11 , 17.1-275.11:1 , or 17.1-275.12 or for all other fines and costs shall be recorded as a judgment in favor of the Commonwealth if such fees, assessments, fines, or costs have been fully paid by the defendant by the date of sentencing by the court.

    History. Code 1950, § 8-373; 1952, c. 438; 1962, c. 568; 1973, c. 544; 1975, cc. 182, 575; 1977, c. 617; 1993, c. 412; 1994, c. 538; 1995, c. 434; 1997, c. 579; 2008, cc. 823, 833; 2013, c. 263; 2015, c. 641.

    REVISERS’ NOTE

    Former § 8-374 (Certification of judgment by clerks of other courts) has been deleted as unnecessary.

    The 2008 amendments.

    The 2008 amendments by cc. 823 and 833 are identical, and inserted “or by microphotographic or electronic process allowed by § 17.1-240 ” near the beginning of the first sentence.

    The 2013 amendments.

    The 2013 amendment by c. 263 added the last sentence.

    The 2015 amendments.

    The 2015 amendment by c. 641 in the fifth sentence, inserted “or for all other fines and costs” and substituted “assessments, fines, or costs” for “or assessments.”

    Law Review.

    For article on title examination in Virginia, see 17 U. Rich. L. Rev. 229 (1983).

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, §§ 51, 53, 56.

    CASE NOTES

    Docketing of restitution order as judgment against person does not improperly modify sentence by enhancing punishment, and requirement that restitution order be docketed “without delay” does not relate to entry of docketing order by circuit court. Frazier v. Commonwealth, 20 Va. App. 719, 460 S.E.2d 608, 12 Va. Law Rep. 119, 1995 Va. App. LEXIS 660 (1995).

    OPINIONS OF THE ATTORNEY GENERAL

    Where judgment does not detail a specific monetary award, it may be entered in the judgment docket or in the order book, or in any other record deemed suitable, in accord with local practice and the sound discretion of the clerk. See opinion of Attorney General to The Honorable John T. Frey, Clerk, Fairfax County Circuit Court, 10-011, (7/8/10).

    Limitations for enforcement of restitution. —

    There is a twenty-year statute of limitations for the civil enforcement of restitution imposed by a circuit court in a traffic or criminal prosecution. This limitation period is extendable upon motion and by court approval in twenty-year increments, and is not tolled during incarceration, unless the court stays enforcement until the debtor/defendant is released. See opinion of Attorney General to The Honorable Richard L. Francis, Clerk, County of Southampton/City of Franklin Circuit Court, 16-022, (4/27/17).

    § 8.01-446.1. Keeping of docket books by clerk of court using micrographic process; form.

    Whenever judgments are docketed in the judgment lien book in the office of the clerk of the circuit court and are recorded by a procedural micrographic process as provided in § 17.1-240 , or by any other method or process which renders impractical or impossible the subsequent entry of notations upon the docketed judgment, an appropriate certificate of assignment, release, partial release, certified copy of any order, or other separate instrument setting forth the necessary information as provided in this section shall be recorded and indexed according to law. Such instrument shall conform substantially with the following form:

    TYPE OF FILING (Check One) ( ) Assignment ORIGINAL BOOK # . . . . . PAGE . . . . ( ) Release (or instrument no) ( ) Partial Release ORIGINAL DATE DOCKETED: . . . . . . ( ) Credit(s) ( ) Additional Debtor(s) ( ) New Name of Debtor Date of Judgment: Amount of Judgment: Plaintiff(s): Defendant(s): Assignee (If assignment): Payments (If credits): AMOUNT . . . . . . . . . . DATE PAID . . . . . . (Complete below if additional debtor or change of name of debtor) Debtor: Social Security Number of Debtor (Last Four Digits) (If known): Given under my hand this . . . . . . day of . . . . . . . . . ., . . . . . . (Plaintiff) (Attorney for Plaintiff) (Authorized Agent for Plaintiff) Any judgment creditor who knowingly gives false information upon such certificate made under this section shall be guilty of a Class 1 misdemeanor.

    Click to view

    History. 1985, c. 48; 2008, cc. 823, 833.

    Cross references.

    As to punishment for Class 1 misdemeanors, see § 18.2-11 .

    The 2008 amendments.

    The 2008 amendments by cc. 823 and 833 are identical, and inserted “(or instrument no)” to the third line of the form and inserted “(Last Four Digits)” to the sixteenth line of the form.

    § 8.01-447. Docketing of judgments and decrees of United States courts.

    Judgments and decrees rendered in the circuit court of appeals or a district court of the United States within this Commonwealth may be docketed and indexed in the clerks’ offices of courts of this Commonwealth in the same manner and under the same rules and requirements of law as judgments and decrees of courts in this Commonwealth.

    History. Code 1950, § 8-375; 1977, c. 617.

    Law Review.

    For article on title examination in Virginia, see 17 U. Rich. L. Rev. 229 (1983).

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 51.

    CASE NOTES

    Innocent purchaser protection where judgment not properly docketed. —

    A judgment of a federal court in this State which is not docketed in the county where the land lies is not notice to and does not bind an innocent purchaser who acquires title for value after such judgment is rendered. King v. Davis, 137 F. 222, 1905 U.S. App. LEXIS 5219 (C.C.D. Va. 1905), aff'd, Blankenship v. King, 157 F. 676, 1906 U.S. App. LEXIS 4265 (4th Cir. 1906) (decided under prior law).

    § 8.01-448. Attorney General, etc., to have judgments in favor of Commonwealth docketed.

    Whenever a judgment is recovered in favor of the Commonwealth, it shall be the duty of the Attorney General or other attorney representing the Commonwealth, to cause such judgment to be docketed in all counties and cities wherein there is any real estate owned by any person against whom the judgment is recovered.

    History. Code 1950, § 8-376; 1977, c. 617.

    Cross references.

    As to actions by the Commonwealth, see §§ 8.01-196 through 8.01-216 .

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 56.

    § 8.01-449. How judgments are docketed.

    1. The judgment docket required by § 8.01-446 may be kept in a well-bound book, or any other media permitted by § 17.1-240 . The date and time of docketing shall be recorded with each judgment docketed. The clerk of the circuit court of any county using card files on July 1, 1975, may continue to use the card file system. The docketing may be done by copying the wording of the judgment order verbatim or by abstracting the information therefrom into a book or into fixed fields of an electronic data storage system. Where a procedural microphotographic system is used, the docketing may be done by recording and storing a retrievable image of the judgment order, judgment abstract, or other source document such as a certificate of assignment or release. Where an electronic imaging system is used, the document image shall be stored in a data format which permits recall of the image. Any judgment docketed pursuant to this subsection shall contain the information required by subsection B.
    2. Where a well-bound book is used for the judgment docket there shall be stated in separate columns (i) the date and amount of the judgment, (ii) the time from which it bears interest, (iii) the costs, (iv) the full names of all the parties thereto, including the address, date of birth and the last four digits of the social security number, if known, of each party against whom judgment is rendered, (v) the alternative value of any specific property recovered by it, (vi) the date and the time of docketing it, (vii) the amount and date of any credits thereon, (viii) the court by which it was rendered and the case number, and (ix) when paid off or discharged in whole or in part, the time of payment or discharge and by whom made when there is more than one defendant. And in case of a judgment or decree by confession, the clerk shall also enter in such docket the time of day at which the same was confessed, or at which the same was received in his office to be entered of record. There shall also be shown on such book the name of the plaintiff’s attorney, if any.
    3. Error or omission in the entry of the address or addresses or the social security number or numbers of each party against whom judgment is rendered shall in no way affect the validity, finality or priority of the judgment docketed.
    4. Beginning July 1, 2012, any judgment made available to subscribers via secure remote access pursuant to § 17.1-294 shall contain only the last four digits of the social security number of any party. However, the information otherwise required in the judgment docket pursuant to this section shall be provided.
    5. The attorney or party who prepares or submits the judgment for recordation has the responsibility for ensuring that only the last four digits of the social security number are included in the judgment prior to the instrument’s being submitted for recordation. The clerk has the authority to reject any judgment that does not comply with the provisions of this section.

    History. Code 1950, § 8-377; 1973, c. 544; 1977, c. 617; 1982, c. 405; 1985, c. 171; 1988, c. 420; 1996, c. 427; 1997, c. 579; 2007, cc. 548, 626; 2008, cc. 823, 833; 2010, c. 430.

    Cross references.

    As to confession of judgment, see § 8.01-431 .

    As to recording satisfaction of judgment, see §§ 8.01-453 , 8.01-454 .

    Editor’s note.

    Acts 1996, c. 427, cl. 2, provides: “[t]hat the provisions of this act shall apply to judgments docketed on or after July 1, 1996.”

    The 2007 amendments.

    The 2007 amendments by cc. 548 and 626 are identical, and added the A, B and C designations at the beginning of the first through third paragraphs; deleted “fixed columns of” preceding “a book” in the fourth sentence of subsection A; inserted “the last four digits of the” preceding “social security number” in clause (iv) of the first sentence in subsection B; and added subsection D.

    The 2008 amendments.

    The 2008 amendments by cc. 823 and 833 are identical, and added the last sentence in subsection A; and in subsection D, deleted “subsection B of” following “docket pursuant to” near the end of the second sentence and redesignated the former last two sentences of subsection D as subsection E.

    The 2010 amendments.

    The 2010 amendments by c. 430 substituted “July 1, 2012,” for “July 1, 2010,” in subsection D.

    CASE NOTES

    Omission of Christian name of party is fatal to lien. —

    This section requires that the docket show the names of all the parties to the judgment. These names must be set out, and the omission of the Christian name is fatal to the judgment lien. Richardson v. Gardner, 128 Va. 676 , 105 S.E. 225 , 1920 Va. LEXIS 127 (1920) (decided under prior law).

    Commissioner’s report of judgment as lien should show docketing. —

    A commissioner’s report that reports a judgment as a subsisting lien against land held by a purchaser, without showing, or even stating, that the judgment has ever been docketed, reports a conclusion of law that a court should not be content to accept. Richardson v. Gardner, 128 Va. 676 , 105 S.E. 225 , 1920 Va. LEXIS 127 (1920) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Collateral attack on judgment by insurer. —

    Under §§ 8.01-431 and 8.01-449 , absent fraud or collusion, or lack of jurisdiction, an insurance company cannot collaterally attack a judgment entered by the parties to a lawsuit. Beckner v. Twin City Fire Ins. Co., 58 Va. Cir. 544, 2002 Va. Cir. LEXIS 175 (Roanoke June 27, 2002).

    OPINIONS OF THE ATTORNEY GENERAL

    Certified copy of a final judgment order. —

    A certified copy of a final judgment order issued by the bankruptcy court constitutes an authenticated “abstract of judgment” for purposes of § 8.01-446 , provided the copy otherwise provides the information required by § 8.01-449 , and the clerk of court is therefore required to docket it. See opinion of Attorney General to The Honorable Terry H. Whittle, Clerk of Court, Winchester Circuit Court, 10-083, 2010 Va. AG LEXIS 57 (9/17/10).

    § 8.01-450. How indexed.

    Every judgment shall, as soon as it is docketed, be indexed by the clerk in the name of each defendant, as required by § 17.1-249 , and shall not be regarded as docketed as to any defendant in whose name it is not so indexed. The clerk may maintain such index on computer, word processor, microfilm, microfiche, or other micrographic process.

    History. Code 1950, § 8-378; 1977, c. 617; 1985, c. 171.

    Cross references.

    As to records, recordation and indexing, see § 17.1-223 et seq.

    Law Review.

    For article on title examination in Virginia, see 17 U. Rich. L. Rev. 229 (1983).

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 53.

    CASE NOTES

    Editor’s note.

    Some of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    The object of this section is to apprise third persons who exercise ordinary care and prudence of the existence and character of the judgment. Fulkerson v. Taylor, 102 Va. 314 , 46 S.E. 309 , 1904 Va. LEXIS 72 (1904).

    It requires that a docketed judgment shall be indexed in the name of each defendant, and shall not be regarded as docketed as to any defendant in whose name it is not indexed. Richardson v. Gardner, 128 Va. 676 , 105 S.E. 225 , 1920 Va. LEXIS 127 (1920).

    Omission of Christian name of party is fatal. —

    The index must show the names of all the parties to the judgment. These names must be set out, and the omission of the Christian name is fatal to the judgment. Richardson v. Gardner, 128 Va. 676 , 105 S.E. 225 , 1920 Va. LEXIS 127 (1920).

    Christian name of married woman should be shown. —

    Docketing and indexing a judgment in the name of “Mrs. John Smith” is no notice of a judgment against Mary Smith, who is in fact the wife of John Smith. Bankers Loan & Inv. Co. v. Blair, 99 Va. 606 , 39 S.E. 231 , 1901 Va. LEXIS 86 (1901).

    “Same” may be used. —

    Where the name of a judgment debtor is entered in the index of the judgment lien docket, giving reference to a page of the docket, and immediately under his name the word “same” is written, also giving reference to a page of docket, this is a sufficient compliance with the provisions of this section as to the second-named judgment. Fulkerson v. Taylor, 102 Va. 314 , 46 S.E. 309 , 1904 Va. LEXIS 72 (1904).

    Allegation and proof of indexing required. —

    An allegation in a bill that a judgment sought to be enforced was duly docketed is a sufficient allegation of the indexing of the judgment as required by this section, but if the fact of indexing be put in issue it must be proved, and it would seem that this is not sufficiently done by the mere production of an abstract of the judgment which does not certify that it was duly docketed, and makes no reference to the indexing. Fulkerson v. Taylor, 100 Va. 426 , 41 S.E. 863 , 1902 Va. LEXIS 41 (1902).

    Federal law governs the filing of a notice of a federal tax lien, and the states may not prescribe the form or contents of that notice. The sufficiency of the notice is a question of federal law, and is determined without regard to the precise recording requirements of a particular state. Hudgins v. IRS, 132 Bankr. 115, 1991 U.S. Dist. LEXIS 10202 (E.D. Va. 1991), aff'd, 967 F.2d 973, 1992 U.S. App. LEXIS 14136 (4th Cir. 1992).

    § 8.01-451. Judgments to be docketed and indexed in new names of judgment debtors; how execution may thereafter issue.

    Whenever there is a judgment docketed and indexed, as required by § 17.1-249 , and thereafter a judgment debtor whose name is so recorded changes his name, whether by marriage, court order, by a voluntary assumption of a new name or otherwise, the clerk of the court in which the judgment was obtained, upon satisfactory proof that the judgment debtor has acquired a new name, shall docket and index the judgment in the new name. Execution may thereafter issue against the judgment debtor in the prior name, the new name, or both. The clerk may require the submission by any party interested in the judgment or by his duly authorized attorney or agent of a form similar to that set out in § 8.01-446.1 indicating that the judgment debtor has acquired a new name, and stating the new name. Such form shall constitute satisfactory proof of the new name. This section shall apply to all judgments obtained prior or subsequent to the enactment hereof.

    History. Code 1950, § 8-378.1; 1950, p. 440; 1977, c. 617; 1998, c. 639.

    Cross references.

    As to fees collected by clerks of circuit courts, see § 17.1-275 .

    § 8.01-452. Entry of assignment of judgment on judgment lien docket.

    Whenever there shall be an assignment of a judgment, such assignment must be in writing, showing the date thereof, the name of the assignor and assignee, the amount of the judgment, and when and by what court granted, and either acknowledged as are deeds for recordation in the clerks’ offices of circuit courts in the Commonwealth, or signed by the assignor, attested by two witnesses. Such assignment shall be recorded in a separate instrument referencing the page of the book where same is docketed, by the judgment creditor or his attorney of record. When such assignment is docketed as herein provided, further executions shall be issued in the name of the assignee as the plaintiff in the case.

    History. Code 1950, § 8-379; 1977, c. 617; 2014, c. 330.

    Cross references.

    As to fees collected by clerks of circuit courts, see § 17.1-275 .

    The 2014 amendments.

    The 2014 amendment by c. 330 deleted “in order to be so noted” preceding “must be in writing” and substituted “such” for “there may be a notation of the assignment made upon the judgment docket, where the same is recorded, by the clerk. An,” “Such assignment shall be recorded in a separate instrument referencing” for “or such judgment may be assigned by notation on the margin of the judgment lien docket on,” and “docketed” for “and attested by the clerk. The assignment, after the same is noted upon the judgment docket as is herein provided, shall be filed by the clerk with the other papers in the case in his office,” and made minor stylistic changes.

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 117.

    § 8.01-452.1. Disposal of exhibits in civil cases.

    A clerk of court, after sixty days have elapsed from the entry of judgment in a civil case or, if the civil case is appealed or notice of appeal is pending or the case is being reheard, when the appeal or rehearing is concluded, may dispose of or donate any exhibits filed in the case and in his possession after notifying the owner or his attorney by first-class mail and after twenty-one days from the mailing of the notice to the owner or attorney unless the owner or attorney requests the return of the exhibits.

    History. 1981, c. 312; 1992, c. 57; 1995, c. 13; 1997, c. 135; 1998, c. 886.

    Law Review.

    For 1995 survey of civil practice and procedure, see 29 U. Rich. L. Rev. 897 (1995).

    Article 6. Satisfaction.

    § 8.01-453. When and how payment or discharge entered on judgment docket.

    The fact of satisfaction of any judgment so docketed, and if there is more than one defendant, by which defendant it was satisfied, shall be entered by the clerk in whose office the judgment is docketed whenever it appears from a certificate of the clerk of the court in which the judgment was rendered that the judgment has been satisfied or upon the direction, in writing, of the judgment creditor or his duly authorized attorney or other agent. However, the judgment creditor may record an instrument, upon payment of the fees for recordation of each instrument pursuant to § 17.1-275 , releasing the lien of any judgment so docketed as against one or more parcels of real property, even when full satisfaction of the judgment has not been made and entered by the clerk.

    History. Code 1950, § 8-380; 1977, c. 617; 1979, c. 192; 1986, c. 276; 1988, c. 420; 2015, c. 631; 2016, c. 482.

    REVISERS’ NOTE

    The phrase “. . ., his duly authorized attorney or other agent . . .” has been added to former § 8-380.

    Former § 8-381 (When clerk to certify satisfaction of judgment) has been deleted. Sections 8.01-453 , 8.01-454 , and 8.01-455 are adequate to cover the import of this statute.

    Cross references.

    As to executions of judgments and other means of recovery generally, see §§ 8.01-466 through 8.01-525 .

    The 2015 amendments.

    The 2015 amendment by c. 631 substituted “satisfaction” for “payment or discharge, either in whole or in part,” substituted “it was satisfied” for “it was paid or discharged” and deleted “in whole or in part” preceding “or upon.”

    The 2016 amendments.

    The 2016 amendment by c. 482 added the last sentence.

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 151.

    § 8.01-454. Judgment, when satisfied, to be so noted by creditor.

    In all cases in which satisfaction of any judgment so docketed is made, which is not required to be certified to the clerk under § 8.01-455 , it shall be the duty of the judgment creditor, himself, or by his agent or attorney, to cause such satisfaction by the defendant, and if there is more than one defendant, by which defendant it was satisfied, to be entered within 30 days after the same is made, on such judgment docket. If the judgment has not been docketed, then the entry shall be made on the execution book in the office of the clerk from which the execution issued. For any failure to do so within 90 days, or after 10 days’ notice to do so by the judgment debtor or his agent or attorney, the judgment creditor shall be liable to a fine of $100 and shall pay the filing cost of the release. The entry of satisfaction shall be signed by the creditor or his duly authorized attorney or other agent and be attested by the clerk in whose office the judgment is docketed, or when not docketed, by the clerk from whose office the execution issued; however, the cost of the release shall be paid by the judgment debtor. For any money judgment marked as satisfied pursuant to this section, nothing herein shall satisfy an unexecuted order of possession entered pursuant to § 8.01-126 .

    History. Code 1950, § 8-382; 1977, c. 617; 1988, c. 420; 2014, c. 274; 2015, cc. 547, 553, 631.

    REVISERS’ NOTE

    The 90-day period of former § 8-382 has been reduced to 30 days. The fine has been increased from $20 to a maximum of $50. Other minor changes have been made.

    Cross references.

    As to release of other liens, see §§ 43-67 through 43-71 .

    The 2014 amendments.

    The 2014 amendment by c. 274, substituted “30” for “thirty” preceding “days”; inserted “within 90 days, or” preceding “after”; substituted “10” for “ten” preceding “days”; inserted “or” following “debtor” and substituted “$100 and shall pay the filing cost of the release” for “up to fifty dollars” following “fine of.”

    The 2015 amendments.

    The 2015 amendment by c. 547 deleted “payment or” preceding “satisfaction” throughout the section; deleted “whether in whole or in part” following “by the defendant” and substituted “satisfied” for “paid or discharged” in the first sentence; and added the fifth sentence.

    The 2015 amendments by cc. 553 and 631 are identical, and deleted “payment or” preceding “satisfaction” throughout the section; and in the first sentence, deleted “whether in whole or in part” following “by the defendant” and substituted “satisfied” for “paid or discharged” in the first sentence.

    CASE NOTES

    Ratification of act of attorney in indorsing judgment as satisfied. —

    The holder of a note sent it to attorneys with instructions to renew if possible, but otherwise to sue. After judgment was obtained, the holder received from the attorneys a new note and money, with the intimation that if a small balance was paid they would receive it in satisfaction of the judgment. The holder accepted the new note and money, and announced the balance due, and the attorneys indorsed the judgment on the lien docket as “satisfied.” The holder did nothing further for five years, when an attempt was made to cancel the indorsement on the ground of fraud or mistake. It was held that the holder had ratified the indorsement by the attorneys. Higginbotham v. May, 90 Va. 233 , 17 S.E. 941 , 1893 Va. LEXIS 39 (1893) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Failure to mark judgment as satisfied. —

    Because a party responsible for paying a judgment had only a statutory remedy arising from a claim that his judgment creditor was negligent in failing to mark the judgment between them satisfied, and thus, had no common-law cause of action, when he failed to avail himself of the statute, he could not create a new cause of action to rectify said failure. Thus, the judgment creditor’s demurrer in response to his negligence allegations was sustained. Weichert Co. v. Dunkwu, 74 Va. Cir. 1, 2007 Va. Cir. LEXIS 247 (Alexandria Jan. 26, 2007).

    OPINIONS OF THE ATTORNEY GENERAL

    Entry by clerk. —

    A judgment debtor may not present a release from judgment to a circuit court clerk for entry without the court granting a motion made pursuant to § 8.01-455 . See opinion of Attorney General to The Honorable Judy L. Worthington, Clerk of the Circuit Court, Chesterfield County, 12-047, 2012 Va. AG LEXIS 28 (6/29/2012).

    § 8.01-455. Court, on motion of defendant, etc., may have payment of judgment entered.

    1. A defendant in any judgment, his heirs or personal representatives, may, on motion, after ten days’ notice thereof to the plaintiff in such judgment, or his assignee, or if he be dead, to his personal representative, or if he be a nonresident, to his attorney, if he have one, apply to the court in which the judgment was rendered, to have the same marked satisfied, and upon proof that the judgment has been paid off or discharged, such court shall order such satisfaction to be recorded in the judgment docket book together with a separate instrument or order discharging the judgment and referencing the judgment docket book and page where the original judgment was entered, and a certificate of such order to be made to the clerk of the court in which such judgment is required by § 8.01-446 to be docketed, and the clerk of such court shall immediately, upon the receipt of such certificate, enter the same in the judgment docket book where such judgment is docketed. If the plaintiff be a nonresident and have no attorney of record residing in this Commonwealth, the notice may be published and posted as an order of publication is required to be published and posted under §§ 8.01-316 and 8.01-317 . Upon a like motion and similar proceeding, the court may order that a separate instrument or order be recorded to reflect that a judgment has been “discharged in bankruptcy ” for any judgment that may be shown to have been so discharged.
    2. The cost of such proceedings, including reasonable attorney fees, may be ordered to be paid by the plaintiff.

    History. Code 1950, § 8-383; 1977, c. 617; 2014, c. 330.

    REVISERS’ NOTE

    Subsection B, providing that the cost of such a proceeding be borne by the plaintiff, is new in Title 8.01.

    Cross references.

    As to entry of order of publication, see §§ 8.01-316 , 8.01-317 .

    As to place where judgment is docketed, see § 8.01-446 .

    The 2014 amendments.

    The 2014 amendment by c. 330 in subsection A substituted “recorded” for “entered on the margin of the page,” “together with a separate instrument or order discharging the judgment and referencing the judgment docket book and page where the original” for “wherein such,” “that a separate instrument or order be recorded to reflect that a judgment has been” for “to be marked,” and “that” for “which,” inserted “judgment docket” following “satisfaction to be recorded in the,” deleted “proper column of the” following “same in the” and made a minor stylistic change; and in subsection B substituted “attorney” for “attorney’s.”

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 151.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Discharge in bankruptcy would not prevent enforcement of lien acquired before bankruptcy proceedings. —

    A debtor’s discharge in bankruptcy would not prevent a judgment creditor from a post-discharge enforcement of its lien upon debtor’s real property interests that were acquired before the commencement of the bankruptcy proceedings. Where the creditor’s judgment was recorded before the debtor filed his bankruptcy petition, the judgment continued to be a lien on any interest the debtor may have had in land despite debtor’s bankruptcy discharge from personal liability for payment of the judgement. Therefore, the judgment lien was not “paid off or discharged” in the debtor’s bankruptcy proceedings. And the trial court erred in ordering that the lien be released. Leasing Serv. Corp. v. Justice, 243 Va. 441 , 416 S.E.2d 439, 8 Va. Law Rep. 2783, 1992 Va. LEXIS 35 (1992).

    Discharge in bankruptcy made lien ineffective against real property acquired after commencement of bankruptcy proceedings. —

    Although lien was imposed on all of debtor’s real property interests in the county that were acquired after judgment creditor’s judgment was recorded, debtor’s discharge in bankruptcy made the lien ineffective as to any real property interests in the county that debtor acquired after the commencement of his bankruptcy proceedings. Leasing Serv. Corp. v. Justice, 243 Va. 441 , 416 S.E.2d 439, 8 Va. Law Rep. 2783, 1992 Va. LEXIS 35 (1992).

    Incorrect order of “satisfied in bankruptcy.” —

    Trial court incorrectly ordered a judgment creditor’s recorded judgment marked “satisfied in bankruptcy”; the trial court could only order the release of judgment creditor’s lien in a proceeding under this section upon proof that the lien had been discharged in bankruptcy; furthermore, debtor had the burden of proof as to his entitlement to relief under this section; thus, the trial court also erred in imposing the burden on judgment creditor to show that debtor had property in county that was subject to its lien. Leasing Serv. Corp. v. Justice, 243 Va. 441 , 416 S.E.2d 439, 8 Va. Law Rep. 2783, 1992 Va. LEXIS 35 (1992).

    Setoff pursuant to § 58.1-535 erroneously denied. —

    Because § 58.1-535 permitted a claimant agency, in compliance with the provisions of that statute, to set off a monetary judgment debt, and the Setoff Debt Collection Act, § 58.1-520 et seq., was not limited in application to tax refunds, the circuit court erred in failing to mark a judgment between a university, as the claimant agency, and a judgment debtor as satisfied when it was undisputed that the creditor owed the university more than the amount of the judgment entered. Va. Polytechnic Inst. & State Univ. v. Interactive Return Serv., 271 Va. 304 , 626 S.E.2d 436, 2006 Va. LEXIS 31 (2006).

    Not granting satisfaction of judgment. —

    Trial court retained jurisdiction to reconsider its order when the trial court had to rule on the public authority’s motion for satisfaction of judgment regarding the judgment awarded in what otherwise appeared to be the trial court’s final order. The trial court could suspend its own order to consider whether the judgment had been satisfied and could conclude that satisfaction had not occurred because the amount of the debt remained at issue. Upper Occoquan Sewage Auth. v. Blake Constr. Co., 275 Va. 41 , 655 S.E.2d 10, 2008 Va. LEXIS 17 (2008).

    II.Decisions Under Prior Law.

    Editor’s note.

    The object of this section is to afford a summary remedy for having marked satisfied the liens mentioned therein upon proof that the judgment has been actually paid or discharged. The section was not intended to enable persons to have such liens marked satisfied because liable to be defeated by presumption of payment, or because barred by the statute of limitations. Turnbull v. Mann, 94 Va. 182 , 26 S.E. 510 , 1897 Va. LEXIS 59 (1897).

    Court may direct jury to try facts. —

    If, on a motion to enter a judgment satisfied, the relief of the party depends on matters of fact, the court has discretion to direct a jury to try the facts. Smock v. Dade, 26 Va. (5 Rand.) 639, 1826 Va. LEXIS 86 (1826).

    A suit in equity is the proper remedy to vacate an entry of satisfaction. Such a suit may be maintained where there has been fraud or mistake. And it may be maintained by the attorneys who obtained the judgment. Higginbotham v. May, 90 Va. 233 , 17 S.E. 941 , 1893 Va. LEXIS 39 (1893) (see also Bradshaw v. Bratton, 96 Va. 577 , 32 S.E. 56 (1899)).

    CIRCUIT COURT OPINIONS

    Failure to mark judgment as satisfied. —

    Because a party responsible for paying a judgment had only a statutory remedy arising from a claim that his judgment creditor was negligent in failing to mark the judgment between them satisfied, and thus, had no common-law cause of action, when he failed to avail himself of the statute, he could not create a new cause of action to rectify said failure. Thus, the judgment creditor’s demurrer in response to his negligence allegations was sustained. Weichert Co. v. Dunkwu, 74 Va. Cir. 1, 2007 Va. Cir. LEXIS 247 (Alexandria Jan. 26, 2007).

    OPINIONS OF THE ATTORNEY GENERAL

    Entry by clerk. —

    A judgment debtor may not present a release from judgment to a circuit court clerk for entry without the court granting a motion made pursuant to § 8.01-455 . See opinion of Attorney General to The Honorable Judy L. Worthington, Clerk of the Circuit Court, Chesterfield County, 12-047, 2012 Va. AG LEXIS 28 (6/29/2012).

    § 8.01-456. Satisfaction of judgment when judgment creditor cannot be located.

    Whenever a judgment debtor or anyone for him or any party liable on the judgment wishes to pay off and discharge a judgment, of record in any clerk’s office in this Commonwealth, when the judgment creditor cannot be located, he may do so by paying into the court having jurisdiction over such judgment an amount sufficient to pay the principal, interest, and all costs due thereupon, together with the cost of entering necessary orders, and other service attendant upon the proceeding herein provided for, and satisfaction upon such judgment. Upon such payment, the court, by an order entered of record shall direct the clerk to deposit the same at interest in any bank which is a member of the Federal Deposit Insurance Corporation and is designated in such order; to file evidence of such deposit in the office of the clerk in an appropriate file and shall be payable to the court entering the order for the benefit of the judgment creditor; and to enter upon the judgment docket, where the judgment is docketed, the date of such deposit, the date of the entry of the order of the court receiving same, referring to the number and page of the order book in which it is entered.

    The judgment creditor or his attorney may have the money, so paid, to which he is entitled, upon application to the court therefor whenever it may appear to the court that it should be paid to him.

    From and after the time of such payment, into the court, as aforesaid, the property of the defendant shall be free and clear of any lien created by any such judgment, or any execution issued thereupon.

    History. Code 1950, § 8-384; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-384 has been changed by substituting for “any interested party . . .” the language “a judgment debtor or anyone for him or any party liable on the judgment” before the word “wishes.” The language “any bank which is a member of the Federal Deposit Insurance Corporation . . .” has been inserted in place of the former language “some solvent bank . . . .” The words “at interest” have been inserted after the language “deposit the same.” The language “to take an interest bearing certificate therefor which shall be filed . . .” has been replaced with “to file evidence of such deposit . . . .”

    CASE NOTES

    Lis pendens is not a lien or a judgment. It is merely notice that an action is pending, seeking to obtain a judgment. Cavalier Serv. Corp. v. Wise, 645 F. Supp. 31, 1986 U.S. Dist. LEXIS 23317 (E.D. Va. 1986).

    OPINIONS OF THE ATTORNEY GENERAL

    This section does not apply to the discharge of a judgment where the creditor refuses to accept payment from the debtor or to the satisfaction of a judgment obtained in general district courts that is not docketed in a circuit court. See opinion of Attorney General to The Honorable Rex A. Davis, Clerk of the Circuit Court for the City of Newport News, 06-038 (5/19/06).

    § 8.01-457. Marking satisfied judgments for Commonwealth; payment by third parties releasing recognizances.

    It shall be the duty of the clerks of the circuit courts of this Commonwealth, upon the payment of any judgment in favor of the Commonwealth by any person or upon the release of any recognizance by court order, to mark the same satisfied upon the judgment lien docket at every place such judgment or recognizance, as the case may be, shall have been recorded upon such lien docket. In marking such recognizance satisfied it shall be the duty of such clerk to refer by marginal reference to the court order, if any, releasing or discharging such recognizance.

    History. Code 1950, § 8-385; 1977, c. 617; 1986, c. 132.

    Article 7. Lien and Enforcement Thereof.

    § 8.01-458. From what time judgment to be a lien on real estate; docketing revived judgment.

    Every judgment for money rendered in this Commonwealth by any state or federal court or by confession of judgment, as provided by law, shall be a lien on all the real estate of or to which the defendant in the judgment is or becomes possessed or entitled, from the time such judgment is recorded on the judgment lien docket of the clerk’s office of the county or city where such land is situated. Any judgment or decree properly docketed under the provisions of this section shall, if the real estate subject to the lien of such judgment has been annexed to or merged with an adjoining city subsequent to such docketing, be deemed to have been docketed in the proper clerk’s office of such city.

    History. Code 1950, § 8-386; 1954, c. 333; 1960, c. 466; 1964, c. 309; 1977, c. 617; 2021, Sp. Sess. I, c. 486.

    Editor’s note.

    Acts 2021, Sp. Sess. I, c. 486, cl. 2 provides: “That the provisions of this act, except for the provisions amending subsections B and G of § 8.01-251 of the Code of Virginia, as amended by this act, shall become effective on January 1, 2022.”

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 486, effective January 1, 2022, deleted “provided, however, when a judgment is revived under the provisions of § 8.01-251 , that such revived judgment shall not be a lien as prescribed in this section unless and until such judgment is again docketed as provided herein. In such event the lien shall be effective from the date of the original docketing” from the end of the first sentence.

    OPINIONS OF THE ATTORNEY GENERAL

    Where judgment does not detail a specific monetary award, it may be entered in the judgment docket or in the order book, or in any other record deemed suitable, in accord with local practice and the sound discretion of the clerk. See opinion of Attorney General to The Honorable John T. Frey, Clerk, Fairfax County Circuit Court, 10-011, (7/8/10).

    Cross references.

    As to decrees being considered as judgments, see § 8.01-426 .

    As to lien of judgment by confession, see § 8.01-431 .

    As to necessity of certain contracts being in writing, see § 11-1 .

    As to homestead, exemption see § 34-4 et seq.

    As to form and effect of deeds and leases, see § 55.1-300 et seq.

    As to necessity for recordation of contracts, etc., see § 55.1-407 et seq.

    Law Review.

    For article on fraudulent conveyances and preferences in Virginia, see 36 Wash. & Lee L. Rev. 51 (1979).

    For article on title examination in Virginia, see 17 U. Rich. L. Rev. 229 (1983).

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Courts, § 4.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Section 8.01-268 must be read in conjunction with this section, which states that “[e]very judgment for money rendered in this Commonwealth by any state or federal court . . . shall be a lien on all the real estate of . . . the defendant . . . .” Thus, any suit in which the defendant is an individual has the potential to affect the title to real estate. Hart v. United Va. Bank, 24 Bankr. 821, 1982 Bankr. LEXIS 5421 (Bankr. E.D. Va. 1982).

    This section must be read in conjunction with § 55-96. Leake v. Finance One Mtg., Inc. (In re Snyder), 57 Bankr. 438, 1985 Bankr. LEXIS 5057 (Bankr. W.D. Va. 1985).

    Procedure available to any party seeking money judgment. —

    Under § 8.01-268 and this section, the recording of a memorandum of lis pendens is open to any litigating party seeking a money judgment against an individual property owner in Virginia. Hart v. United Va. Bank, 24 Bankr. 821, 1982 Bankr. LEXIS 5421 (Bankr. E.D. Va. 1982).

    A judgment lien is a right given the judgment creditor to have his claim satisfied by the seizure of the land of his judgment debtor. In re Washington, 6 Bankr. 226, 1980 Bankr. LEXIS 4435 (Bankr. E.D. Va. 1980).

    Effect of discharge in bankruptcy. —

    A discharge in bankruptcy does not necessarily affect a specific lien, but only releases the bankrupt from personal liability. Turshen v. Bennett Heating & Air Conditioning, Inc. (In re Brisbane), 2 Bankr. 636, 1980 Bankr. LEXIS 5596 (Bankr. E.D. Va. 1980).

    Monetary award in equitable distribution proceedings. —

    A party who is granted a monetary award in an equitable distribution proceeding is in the same position as any other judgment creditor and has the same enforcement remedies available. Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569, 5 Va. Law Rep. 237, 1988 Va. App. LEXIS 86 (1988).

    Section applies to decrees. —

    Since a decree for money, by express enactment, is embraced by the word “judgment,” the statute fixing the lien of a judgment applies equally to such decrees. Hockman v. Hockman, 93 Va. 455 , 25 S.E. 534 , 1896 Va. LEXIS 96 (1896).

    Lien is a legal one. —

    The lien of a judgment given by this section is a legal lien, and the judgment creditor can enforce it in a court of equity without pursuing his debtor’s personalty. The lien, being a plain legal one, expressly created by statute, cannot be judicially modified to soften the supposed hardship of secret encumbrances. Gurnee v. Johnson, 77 Va. 712 , 1883 Va. LEXIS 108 (1883); Hutchison v. Grubbs, 80 Va. 251 , 1885 Va. LEXIS 62 (1885); Blakemore v. Wise, 95 Va. 269 , 28 S.E. 332 , 1897 Va. LEXIS 35 (1897); Flanary v. Kane, 102 Va. 547 , 46 S.E. 312 , 1904 Va. LEXIS 101 (1904).

    It may be enforced immediately. —

    The debt evidenced by a judgment, unlike many obligations described in mortgages or deeds of trust, is past due. There is nothing to prevent its immediate enforcement. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    Judgment cannot be impaired by any act of the debtor. —

    When a judgment creditor has obtained his judgment and caused it to be docketed, his lien is perfect and complete, and cannot be defeated or impaired by any act of his debtor in which he did not participate. Strayer v. Long, 93 Va. 695 , 26 S.E. 409 , 1896 Va. LEXIS 127 (1896).

    But it is lost if third person acquires title by adverse possession. —

    It is true that the lien of a judgment may be indefinitely continued against the land of the judgment debtor in his possession, or of others holding titles derived from and in privity with him. But obviously the same rule cannot be applied to strangers who have acquired a perfect legal title not in privity with but adversely to the title of the judgment debtor. In other words, the life of a judgment may be indefinitely prolonged as to any property upon which it can operate, but whenever the right of the judgment debtor to make an entry on or bring an action to recover any land held adversely is tolled by § 8.01-236 , the right of his judgment creditor to subject land to the satisfaction of his judgment also ceases. The lien is a vested right, but not more so than the title to which the lien attaches, and when the statute of limitations destroys the latter it necessarily destroys the former. McClanahan’s Adm’r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 (1918). But see Flanary v. Kane, 102 Va. 547 , 46 S.E. 312 (1904), wherein it was held that § 8.01-236 did not apply to a suit to enforce a judgment lien .

    Judgment creditor has no interest in the land of his debtor. He has neither a jus in re nor a jus ad rem. He has no right to the possession. He has simply a lien upon the land, and the right to subject it to the discharge of that lien. McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918).

    He has no proprietary right, merely a right to levy. —

    A judgment lien is a right given the judgment creditor to have his claim satisfied by the seizure of the land of his judgment debtor. It is not a proprietary right in the lands of the judgment debtor, but merely a right to levy on any such lands for the purpose of satisfying the judgment to the exclusion or destruction of any right which may have accrued to others since the attachment of the lien. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    Title of debtor is not divested by entry of judgment. —

    When levy on real property is actually made by a judgment creditor under a judgment lien, the title of the creditor, for this purpose, relates back to the time of his judgment, so as to cut out intermediate incumbrances. But subject to this, the debtor has full power to sell or otherwise dispose of the land. His title to it is not divested or transferred, by the judgment, to the judgment creditor. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    Court may restrain acts tending to lessen value of lien. —

    If, in a suit to enforce a judgment lien on real property, it is shown that the owner of the land, or his assignee in possession, is doing any act that tends to lessen its value and to jeopardize the full satisfaction of the judgment, the act may be restrained until the land is, in due course, offered for sale. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    A decree for alimony constitutes a lien under this section upon all of the husband’s real estate from the date of such decree, not only for the installments presently due, but for those that shall fall due under such decree in the future; and where a temporary decree for alimony is subsequently made permanent, the lien for the whole amount dates from the date of the temporary decree. Issacs v. Issacs, 117 Va. 730 , 86 S.E. 105 , 1915 Va. LEXIS 88 (1915); Morris v. Henry, 193 Va. 631 , 70 S.E.2d 417, 1952 Va. LEXIS 174 (1952).

    Lien of decree for support of infant held to continue after father’s death. —

    Divorce decree directing defendant father to pay a certain sum monthly for alimony and support of his infant daughter, became a lien upon the land he then owned and which he conveyed less than two months later to his father, and the lien so created, to the extent that the amount thereof was for the benefit of the infant daughter, was intended to and did by said decree continue in effect after the death of her father, and until she became 21 (now 18) years old or self-supporting. Morris v. Henry, 193 Va. 631 , 70 S.E.2d 417, 1952 Va. LEXIS 174 (1952).

    A judgment rendered on a void process constitutes no lien. Lavell v. McCurdy, 77 Va. 763 , 1883 Va. LEXIS 113 (1883).

    Judgment liens were not affected by separation of West Virginia. —

    The lien of a judgment which had attached to land in either Virginia or West Virginia prior to the separation was not lost upon the division of these two states, whereby the county in which the judgment lien originally attached fell either within the one state or the other. Gatewood v. Goode, 64 Va. (23 Gratt.) 880, 1873 Va. LEXIS 75 (1873).

    Suit to set aside fraudulent conveyance does not postpone lien. —

    A judgment creditor’s bringing a suit to set aside as fraudulent a deed executed and recorded prior to the time the judgment was rendered does not postpone the lien of the judgment to the time of the bringing of the suit, or operate as an abandonment or waiver of the existing lien of the judgment against the property in the hands of the fraudulent grantee. Tucker v. Foster, 154 Va. 182 , 152 S.E. 376 , 1930 Va. LEXIS 207 (1930).

    Judgment against contingent remainderman becomes lien when remainder vests. —

    Under this section a judgment against a contingent remainderman is a lien on the after-acquired vested remainder in possession. Wilson v. Langhorne, 102 Va. 631 , 47 S.E. 871 , 1904 Va. LEXIS 110 (1904).

    The lien of a judgment reaches far. It reaches every interest of the judgment debtor in land which the record of the title shows that he had, either before or after the judgment was docketed, unless the record itself shows a previous transfer by deed duly recorded. It is always necessary, however, to show the judgment debtor’s present or former title to the specific land before the lien attaches. Miller v. Kemp, 157 Va. 178 , 160 S.E. 203 , 1931 Va. LEXIS 313 (1931).

    In equity judgments are liens on the whole of the debtor’s equitable estate. Haleys v. Williams, 28 Va. (1 Leigh) 140, 1829 Va. LEXIS 14 (1829) (see Withers v. Carter, 45 Va. (4 Gratt.) 407 (1848); Buchanan v. Clark, 51 Va. (10 Gratt.) 164 (1853)).

    A judgment creditor has a lien in equity on the equitable estate of the debtor, in like manner as he has a lien at law on his legal estate. Coutts v. Walker, 29 Va. (2 Leigh) 268, 1830 Va. LEXIS 34 (1830); Michaux v. Brown, 51 Va. (10 Gratt.) 612, 1854 Va. LEXIS 68 (1854).

    A judgment is a lien on an equity of redemption. Michaux v. Brown, 51 Va. (10 Gratt.) 612, 1854 Va. LEXIS 68 (1854); Hale v. Horne, 62 Va. (21 Gratt.) 112, 1871 Va. LEXIS 75 (1871); McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918).

    But lien is subject to prior deed of trust. —

    A creditor, whose judgment is subsequent to a deed of trust on the debtor’s land, has a lien only on the equity of redemption, and cannot have the deed of trust enforced, and the land sold to pay the debts thereby secured, until default. Wytheville Crystal Ice & Dairy Co. v. Frick Co., 96 Va. 141 , 30 S.E. 491 , 1898 Va. LEXIS 72 (1898); Shurtz v. Johnson, 69 Va. (28 Gratt.) 657, 1877 Va. LEXIS 91 (1877).

    For creditor gets only rights of debtor. —

    Where the recording acts do not interfere, the judgment creditor can acquire no better right to the estate than the debtor himself had at the date of the recovery of the judgment. Coldiron v. Asheville Shoe Co., 93 Va. 364 , 25 S.E. 238 , 1896 Va. LEXIS 83 (1896); McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918); Van Nostrand & Co. v. Virginia Zinc & Chem. Corp., 126 Va. 131 , 101 S.E. 65 , 1919 Va. LEXIS 81 (1919).

    Judgment against partnership is lien on real estate of partner. —

    A judgment against partners for a firm liability is a lien against the real estate of each partner, and has preference over an unsecured debt of a deceased partner in the administration of his assets. Pitts v. Spotts, 86 Va. 71 , 9 S.E. 501 , 1889 Va. LEXIS 10 (1889).

    Lien remains though judgment is suspended by injunction. —

    Though at the time of the conveyance, execution upon the judgment was suspended by an injunction, yet the judgment is a lien upon land in the hands of a purchaser. Craig v. Sebrell, 50 Va. (9 Gratt.) 131, 1852 Va. LEXIS 48 (1852) (see also Michaux v. Brown, 51 Va. (10 Gratt.) 612 (1854)).

    It binds subsequent improvements by grantee with notice. —

    The lien of a judgment against the grantor of lands binds improvements made on the land by a grantee who, at the date of his purchase, had constructive and actual notice of the judgment, and of a lis pendens to enforce it. Nixdorf v. Blount, 111 Va. 127 , 68 S.E. 258 , 1910 Va. LEXIS 14 (1910).

    Debtor must own some beneficial interest in land. —

    Before the lien of the judgment can attach, the judgment debtor must own, or have owned, some beneficial interest in the specific land involved. Miller v. Kemp, 157 Va. 178 , 160 S.E. 203 , 1931 Va. LEXIS 313 (1931).

    A judgment creditor cannot subject to the lien of his judgment real estate or any interest therein not owned by the debtor at or after the recovery of the judgment. Powell v. Bell, 81 Va. 222 , 1885 Va. LEXIS 25 (1885).

    Lien does not attach to interest of mortgagee. —

    A creditor whose debt is secured by deed of trust or mortgage on real estate has no such interest in the land conveyed as amounts to a right of property therein, or as would be bound by judgment against the creditor. Augusta Nat'l Bank v. Beard, 100 Va. 687 , 42 S.E. 694 , 1902 Va. LEXIS 76 (1902).

    Or to land held by debtor in constructive trust. —

    Where the purchase price of land is paid by one person while the legal title is conveyed to another, the latter has no beneficial interest in the land, and it is not bound by a judgment against him, as only the debtor’s beneficial interest in land can be subjected by his creditors. The debtor in such a case is a mere trustee, and has no beneficial interest. Straley v. Esser, 117 Va. 135 , 83 S.E. 1075 , 1915 Va. LEXIS 17 (1915) (see also Coldiron v. Asheville Shoe Co., 93 Va. 364 , 25 S.E. 238 (1896)).

    Or to land of which he has had only transitory seisin. —

    Transitory seisin is not such an interest as becomes subject to a lien of a judgment. Hence, where land is conveyed to judgment debtor, and eo instante reconveyed by him to trustee to secure the purchase money, he has no interest subject to the judgment lien as against the trust deed. Straus v. Bodeker, 86 Va. 543 , 10 S.E. 570 , 1889 Va. LEXIS 69 (1889); Charlottesville Hdwe. Co. v. Perkins, 118 Va. 34 , 86 S.E. 869 , 1915 Va. LEXIS 120 (1915); Moomaw v. Jordan, 118 Va. 414 , 87 S.E. 569 , 1916 Va. LEXIS 22 (1916).

    Facts insufficient to show equitable title in third person. —

    Where land was conveyed to a land company by an unconditional deed without reservation of lien or any right of any other sort, and the deed showed on its face that the land was bought from the grantor by three of the directors of the company, and that it was conveyed to the company at the instance and request of these directors, who had assigned the benefit of their purchase to the company, and the company caused the land to be platted, and sold various lots to different purchasers, and conveyed the same to them, in some of which conveyances the directors united, stating that the conveyance to the company had been made at their instance and request, and there was no evidence that the directors had any equity whatsoever in the land, the land was bound by judgments against the company. Overstreet v. Griffin, 119 Va. 678 , 89 S.E. 879 , 1916 Va. LEXIS 141 (1916).

    Lands aliened before judgment are not subject to lien. —

    Aside from any question of recordation, judgments acquired after lands have been aliened to a purchaser in good faith and for value do not attach as liens to such land. Bowman v. Hicks, 80 Va. 806 , 1885 Va. LEXIS 115 (1885).

    Unless conveyed in fraud of creditor. —

    If a judgment has been duly rendered and docketed, it is a lien both upon the real estate then held by the judgment debtor and also upon any real estate, which he may have conveyed in fraud of such judgment creditor, after the debt was contracted and before judgment was rendered. Matney v. Combs, 171 Va. 244 , 198 S.E. 469 , 1938 Va. LEXIS 277 (1938).

    And lien on land fraudulently conveyed is subject to superior equities. —

    When a judgment has been rendered and duly docketed the effect thereof is to impose a lien both upon the real estate then held by the judgment debtor and also upon any that he may have theretofore conveyed away in fraud of the judgment creditor after his debt was contracted and before judgment was rendered, subject of course in the latter case to the superior equities of bona fide purchasers for value and without notice. Tucker v. Foster, 154 Va. 182 , 152 S.E. 376 , 1930 Va. LEXIS 207 (1930).

    No lien attaches to personal property. —

    Under this section a decree for alimony and suit money constitutes a lien on the real estate of the husband. There is no suggestion that such a lien attaches to the personal property of the husband. This omission in the statute is fatal to the contention that a court of equity has the inherent power to impound the personal property of the husband to secure the payment of alimony and support money. Ring v. Ring, 185 Va. 269 , 38 S.E.2d 471, 1946 Va. LEXIS 198 (1946).

    Timber severed from the debtor’s land is not subject to the general lien of a judgment, since the judgment lien confers no right on the creditor before levy to sue for waste. The same is true of rents and profits from real estate. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    For a judgment debtor has a right to cut fire wood and timber upon his land previous to a levy, and it follows that such wood and timber cut, but not removed, becomes his personal property, and do not pass by a levy upon, and sale of, the land. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    Creditor cannot follow proceeds of sale. —

    If a judgment debtor should sell his estate, he judgment creditor has no right to follow the proceeds of the sale into the hands of vendor or vendee, or to claim the purchase money in the hands of the vendee. The creditor’s remedy is against the thing itself. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    The lien of a judgment did not extend to the proceeds of part of the land sold by a purchaser with notice to purchasers without notice. The lien of a judgment attaches to the debtor’s land, but not to the proceeds of the sale thereof. And the judgment creditor’s contention that the proceeds should have been considered held in constructive trust came too late because raised for the first time in her brief on appeal, and furthermore was not within the purview of her assignment of error. Orphanoudakis v. Orphanoudakis, 199 Va. 142 , 98 S.E.2d 676, 1957 Va. LEXIS 172 (1957).

    B.When Lien Attaches.

    Docketing is a necessary prerequisite to the validity of a judgment lien. Turshen v. Bennett Heating & Air Conditioning, Inc. (In re Brisbane), 2 Bankr. 636, 1980 Bankr. LEXIS 5596 (Bankr. E.D. Va. 1980); Bartl v. G. Weinberger & Co. (In re Claxton), 32 Bankr. 215, 1983 Bankr. LEXIS 5662 (Bankr. E.D. Va.), aff'd, In re Claxton, 30 Bankr. 199, 1983 Bankr. LEXIS 6230 (Bankr. E.D. Va. 1983).

    The ultimate statutory effect of this section has been to maintain the peculiar relationship between the rendition of a judgment and the docketing of such judgment from which a lien obtains. Turshen v. Bennett Heating & Air Conditioning, Inc. (In re Brisbane), 2 Bankr. 636, 1980 Bankr. LEXIS 5596 (Bankr. E.D. Va. 1980).

    A judgment may not be a lien on real property ex proprio vigore until it becomes such, as by docketing in a register’s office, and further, the Virginia courts and legislature have long acknowledged the unique relationship between docketing of a judgment lien and the rendition of such judgment. Turshen v. Bennett Heating & Air Conditioning, Inc. (In re Brisbane), 2 Bankr. 636, 1980 Bankr. LEXIS 5596 (Bankr. E.D. Va. 1980).

    When judgment against contingent remainderman attaches. —

    Where a remainderman had a vested remainder subject to divestment, and that interest was not divested by the life tenant because she had not disposed of it before her death, his interest was not divested and he became entitled to it. Thus, under § 8.01-458 , a creditor had a lien on the property because her judgment against the remainderman was properly recorded, affording her a lien on all the real estate to which the remainderman was or became possessed or entitled. Jones v. Hill, 267 Va. 708 , 594 S.E.2d 913, 2004 Va. LEXIS 56 (2004).

    Judgment against husband alone. —

    Judgment obtained by a creditor against the debtor husband alone and docketed in the clerk’s office in the county where the property was located was not a lien, pursuant to § 8.01-458 , against the real property held by the debtors as tenants by the entireties; therefore, there was no lien to avoid under 11 U.S.C.S. § 522(f). In re Meese, No. 06-10934-SSM, 2007 Bankr. LEXIS 1256 (Bankr. E.D. Va. Apr. 2, 2007).

    Discharge in bankruptcy would not prevent enforcement of lien acquired before bankruptcy proceedings. —

    A debtor’s discharge in bankruptcy would not prevent a judgment creditor from a post-discharge enforcement of its lien upon debtor’s real property interests that were acquired before the commencement of the bankruptcy proceedings. Where the creditor’s judgment was recorded before the debtor filed his bankruptcy petition, the judgment continued to be a lien on any interest the debtor may have had in land despite his bankruptcy discharge from personal liability for payment of the judgment. Therefore, the judgment lien was not “paid off or discharged” in the debtor’s bankruptcy proceedings. And the trial court erred in ordering that the lien be released. Leasing Serv. Corp. v. Justice, 243 Va. 441 , 416 S.E.2d 439, 8 Va. Law Rep. 2783, 1992 Va. LEXIS 35 (1992).

    Requirement to mark judgment as discharged in bankruptcy. —

    Creditor was required to mark a judgment against a bankruptcy debtor as discharged in bankruptcy since the open judgment violated the discharge stay by misrepresenting that there was an outstanding personal obligation of the debtor, and the creditor’s judgment lien obtained prior to the debtor’s bankruptcy remained enforceable after such marking. Johnson v. Cadles of Grassy Meadows, II, LLC, 466 Bankr. 67, 2012 Bankr. LEXIS 445 (Bankr. E.D. Va. 2012).

    Creation of lien constitutes “transfer” for lien avoidance purposes. —

    Under § 8.01-458 , the docketing of a judgment creates a lien against a judgment debtor’s real property in favor of the judgment creditor, and the creation of that lien constitutes a “transfer” for lien avoidance purposes pursuant to 11 U.S.C.S. §§ 101(54) and 522. In re Dyson, 348 Bankr. 314, 2006 Bankr. LEXIS 2744 (Bankr. E.D. Va. 2006).

    Section applies to decrees. —

    Since a decree for money, by express enactment, is embraced by the word “judgment,” the statute fixing the lien of a judgment applies equally to such decrees. Hockman v. Hockman, 93 Va. 455 , 25 S.E. 534 , 1896 Va. LEXIS 96 (1896).

    Lien is a legal one. —

    The lien of a judgment given by this section is a legal lien, and the judgment creditor can enforce it in a court of equity without pursuing his debtor’s personalty. The lien, being a plain legal one, expressly created by statute, cannot be judicially modified to soften the supposed hardship of secret encumbrances. Gurnee v. Johnson, 77 Va. 712 , 1883 Va. LEXIS 108 (1883); Hutchison v. Grubbs, 80 Va. 251 , 1885 Va. LEXIS 62 (1885); Blakemore v. Wise, 95 Va. 269 , 28 S.E. 332 , 1897 Va. LEXIS 35 (1897); Flanary v. Kane, 102 Va. 547 , 46 S.E. 312 , 1904 Va. LEXIS 101 (1904).

    It may be enforced immediately. —

    The debt evidenced by a judgment, unlike many obligations described in mortgages or deeds of trust, is past due. There is nothing to prevent its immediate enforcement. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    Judgment cannot be impaired by any act of the debtor. —

    When a judgment creditor has obtained his judgment and caused it to be docketed, his lien is perfect and complete, and cannot be defeated or impaired by any act of his debtor in which he did not participate. Strayer v. Long, 93 Va. 695 , 26 S.E. 409 , 1896 Va. LEXIS 127 (1896).

    But it is lost if third person acquires title by adverse possession. —

    It is true that the lien of a judgment may be indefinitely continued against the land of the judgment debtor in his possession, or of others holding titles derived from and in privity with him. But obviously the same rule cannot be applied to strangers who have acquired a perfect legal title not in privity with but adversely to the title of the judgment debtor. In other words, the life of a judgment may be indefinitely prolonged as to any property upon which it can operate, but whenever the right of the judgment debtor to make an entry on or bring an action to recover any land held adversely is tolled by § 8.01-236 , the right of his judgment creditor to subject land to the satisfaction of his judgment also ceases. The lien is a vested right, but not more so than the title to which the lien attaches, and when the statute of limitations destroys the latter it necessarily destroys the former. McClanahan’s Adm’r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 (1918). But see Flanary v. Kane, 102 Va. 547 , 46 S.E. 312 (1904), wherein it was held that § 8.01-236 did not apply to a suit to enforce a judgment lien .

    Judgment creditor has no interest in the land of his debtor. He has neither a jus in re nor a jus ad rem. He has no right to the possession. He has simply a lien upon the land, and the right to subject it to the discharge of that lien. McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918).

    He has no proprietary right, merely a right to levy. —

    A judgment lien is a right given the judgment creditor to have his claim satisfied by the seizure of the land of his judgment debtor. It is not a proprietary right in the lands of the judgment debtor, but merely a right to levy on any such lands for the purpose of satisfying the judgment to the exclusion or destruction of any right which may have accrued to others since the attachment of the lien. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    Title of debtor is not divested by entry of judgment. —

    When levy on real property is actually made by a judgment creditor under a judgment lien, the title of the creditor, for this purpose, relates back to the time of his judgment, so as to cut out intermediate incumbrances. But subject to this, the debtor has full power to sell or otherwise dispose of the land. His title to it is not divested or transferred, by the judgment, to the judgment creditor. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    Court may restrain acts tending to lessen value of lien. —

    If, in a suit to enforce a judgment lien on real property, it is shown that the owner of the land, or his assignee in possession, is doing any act that tends to lessen its value and to jeopardize the full satisfaction of the judgment, the act may be restrained until the land is, in due course, offered for sale. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    A decree for alimony constitutes a lien under this section upon all of the husband’s real estate from the date of such decree, not only for the installments presently due, but for those that shall fall due under such decree in the future; and where a temporary decree for alimony is subsequently made permanent, the lien for the whole amount dates from the date of the temporary decree. Issacs v. Issacs, 117 Va. 730 , 86 S.E. 105 , 1915 Va. LEXIS 88 (1915); Morris v. Henry, 193 Va. 631 , 70 S.E.2d 417, 1952 Va. LEXIS 174 (1952).

    Lien of decree for support of infant held to continue after father’s death. —

    Divorce decree directing defendant father to pay a certain sum monthly for alimony and support of his infant daughter, became a lien upon the land he then owned and which he conveyed less than two months later to his father, and the lien so created, to the extent that the amount thereof was for the benefit of the infant daughter, was intended to and did by said decree continue in effect after the death of her father, and until she became 21 (now 18) years old or self-supporting. Morris v. Henry, 193 Va. 631 , 70 S.E.2d 417, 1952 Va. LEXIS 174 (1952).

    A judgment rendered on a void process constitutes no lien. Lavell v. McCurdy, 77 Va. 763 , 1883 Va. LEXIS 113 (1883).

    Judgment liens were not affected by separation of West Virginia. —

    The lien of a judgment which had attached to land in either Virginia or West Virginia prior to the separation was not lost upon the division of these two states, whereby the county in which the judgment lien originally attached fell either within the one state or the other. Gatewood v. Goode, 64 Va. (23 Gratt.) 880, 1873 Va. LEXIS 75 (1873).

    Suit to set aside fraudulent conveyance does not postpone lien. —

    A judgment creditor’s bringing a suit to set aside as fraudulent a deed executed and recorded prior to the time the judgment was rendered does not postpone the lien of the judgment to the time of the bringing of the suit, or operate as an abandonment or waiver of the existing lien of the judgment against the property in the hands of the fraudulent grantee. Tucker v. Foster, 154 Va. 182 , 152 S.E. 376 , 1930 Va. LEXIS 207 (1930).

    Judgment against contingent remainderman becomes lien when remainder vests. —

    Under this section a judgment against a contingent remainderman is a lien on the after-acquired vested remainder in possession. Wilson v. Langhorne, 102 Va. 631 , 47 S.E. 871 , 1904 Va. LEXIS 110 (1904).

    The lien of a judgment reaches far. It reaches every interest of the judgment debtor in land which the record of the title shows that he had, either before or after the judgment was docketed, unless the record itself shows a previous transfer by deed duly recorded. It is always necessary, however, to show the judgment debtor’s present or former title to the specific land before the lien attaches. Miller v. Kemp, 157 Va. 178 , 160 S.E. 203 , 1931 Va. LEXIS 313 (1931).

    In equity judgments are liens on the whole of the debtor’s equitable estate. Haleys v. Williams, 28 Va. (1 Leigh) 140, 1829 Va. LEXIS 14 (1829) (see Withers v. Carter, 45 Va. (4 Gratt.) 407 (1848); Buchanan v. Clark, 51 Va. (10 Gratt.) 164 (1853)).

    A judgment creditor has a lien in equity on the equitable estate of the debtor, in like manner as he has a lien at law on his legal estate. Coutts v. Walker, 29 Va. (2 Leigh) 268, 1830 Va. LEXIS 34 (1830); Michaux v. Brown, 51 Va. (10 Gratt.) 612, 1854 Va. LEXIS 68 (1854).

    A judgment is a lien on an equity of redemption. Michaux v. Brown, 51 Va. (10 Gratt.) 612, 1854 Va. LEXIS 68 (1854); Hale v. Horne, 62 Va. (21 Gratt.) 112, 1871 Va. LEXIS 75 (1871); McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918).

    But lien is subject to prior deed of trust. —

    A creditor, whose judgment is subsequent to a deed of trust on the debtor’s land, has a lien only on the equity of redemption, and cannot have the deed of trust enforced, and the land sold to pay the debts thereby secured, until default. Wytheville Crystal Ice & Dairy Co. v. Frick Co., 96 Va. 141 , 30 S.E. 491 , 1898 Va. LEXIS 72 (1898); Shurtz v. Johnson, 69 Va. (28 Gratt.) 657, 1877 Va. LEXIS 91 (1877).

    For creditor gets only rights of debtor. —

    Where the recording acts do not interfere, the judgment creditor can acquire no better right to the estate than the debtor himself had at the date of the recovery of the judgment. Coldiron v. Asheville Shoe Co., 93 Va. 364 , 25 S.E. 238 , 1896 Va. LEXIS 83 (1896); McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918); Van Nostrand & Co. v. Virginia Zinc & Chem. Corp., 126 Va. 131 , 101 S.E. 65 , 1919 Va. LEXIS 81 (1919).

    Judgment against partnership is lien on real estate of partner. —

    A judgment against partners for a firm liability is a lien against the real estate of each partner, and has preference over an unsecured debt of a deceased partner in the administration of his assets. Pitts v. Spotts, 86 Va. 71 , 9 S.E. 501 , 1889 Va. LEXIS 10 (1889).

    Lien remains though judgment is suspended by injunction. —

    Though at the time of the conveyance, execution upon the judgment was suspended by an injunction, yet the judgment is a lien upon land in the hands of a purchaser. Craig v. Sebrell, 50 Va. (9 Gratt.) 131, 1852 Va. LEXIS 48 (1852) (see also Michaux v. Brown, 51 Va. (10 Gratt.) 612 (1854)).

    It binds subsequent improvements by grantee with notice. —

    The lien of a judgment against the grantor of lands binds improvements made on the land by a grantee who, at the date of his purchase, had constructive and actual notice of the judgment, and of a lis pendens to enforce it. Nixdorf v. Blount, 111 Va. 127 , 68 S.E. 258 , 1910 Va. LEXIS 14 (1910).

    Debtor must own some beneficial interest in land. —

    Before the lien of the judgment can attach, the judgment debtor must own, or have owned, some beneficial interest in the specific land involved. Miller v. Kemp, 157 Va. 178 , 160 S.E. 203 , 1931 Va. LEXIS 313 (1931).

    A judgment creditor cannot subject to the lien of his judgment real estate or any interest therein not owned by the debtor at or after the recovery of the judgment. Powell v. Bell, 81 Va. 222 , 1885 Va. LEXIS 25 (1885).

    Lien does not attach to interest of mortgagee. —

    A creditor whose debt is secured by deed of trust or mortgage on real estate has no such interest in the land conveyed as amounts to a right of property therein, or as would be bound by judgment against the creditor. Augusta Nat'l Bank v. Beard, 100 Va. 687 , 42 S.E. 694 , 1902 Va. LEXIS 76 (1902).

    Or to land held by debtor in constructive trust. —

    Where the purchase price of land is paid by one person while the legal title is conveyed to another, the latter has no beneficial interest in the land, and it is not bound by a judgment against him, as only the debtor’s beneficial interest in land can be subjected by his creditors. The debtor in such a case is a mere trustee, and has no beneficial interest. Straley v. Esser, 117 Va. 135 , 83 S.E. 1075 , 1915 Va. LEXIS 17 (1915) (see also Coldiron v. Asheville Shoe Co., 93 Va. 364 , 25 S.E. 238 (1896)).

    Or to land of which he has had only transitory seisin. —

    Transitory seisin is not such an interest as becomes subject to a lien of a judgment. Hence, where land is conveyed to judgment debtor, and eo instante reconveyed by him to trustee to secure the purchase money, he has no interest subject to the judgment lien as against the trust deed. Straus v. Bodeker, 86 Va. 543 , 10 S.E. 570 , 1889 Va. LEXIS 69 (1889); Charlottesville Hdwe. Co. v. Perkins, 118 Va. 34 , 86 S.E. 869 , 1915 Va. LEXIS 120 (1915); Moomaw v. Jordan, 118 Va. 414 , 87 S.E. 569 , 1916 Va. LEXIS 22 (1916).

    Facts insufficient to show equitable title in third person. —

    Where land was conveyed to a land company by an unconditional deed without reservation of lien or any right of any other sort, and the deed showed on its face that the land was bought from the grantor by three of the directors of the company, and that it was conveyed to the company at the instance and request of these directors, who had assigned the benefit of their purchase to the company, and the company caused the land to be platted, and sold various lots to different purchasers, and conveyed the same to them, in some of which conveyances the directors united, stating that the conveyance to the company had been made at their instance and request, and there was no evidence that the directors had any equity whatsoever in the land, the land was bound by judgments against the company. Overstreet v. Griffin, 119 Va. 678 , 89 S.E. 879 , 1916 Va. LEXIS 141 (1916).

    Lands aliened before judgment are not subject to lien. —

    Aside from any question of recordation, judgments acquired after lands have been aliened to a purchaser in good faith and for value do not attach as liens to such land. Bowman v. Hicks, 80 Va. 806 , 1885 Va. LEXIS 115 (1885).

    Unless conveyed in fraud of creditor. —

    If a judgment has been duly rendered and docketed, it is a lien both upon the real estate then held by the judgment debtor and also upon any real estate, which he may have conveyed in fraud of such judgment creditor, after the debt was contracted and before judgment was rendered. Matney v. Combs, 171 Va. 244 , 198 S.E. 469 , 1938 Va. LEXIS 277 (1938).

    And lien on land fraudulently conveyed is subject to superior equities. —

    When a judgment has been rendered and duly docketed the effect thereof is to impose a lien both upon the real estate then held by the judgment debtor and also upon any that he may have theretofore conveyed away in fraud of the judgment creditor after his debt was contracted and before judgment was rendered, subject of course in the latter case to the superior equities of bona fide purchasers for value and without notice. Tucker v. Foster, 154 Va. 182 , 152 S.E. 376 , 1930 Va. LEXIS 207 (1930).

    No lien attaches to personal property. —

    Under this section a decree for alimony and suit money constitutes a lien on the real estate of the husband. There is no suggestion that such a lien attaches to the personal property of the husband. This omission in the statute is fatal to the contention that a court of equity has the inherent power to impound the personal property of the husband to secure the payment of alimony and support money. Ring v. Ring, 185 Va. 269 , 38 S.E.2d 471, 1946 Va. LEXIS 198 (1946).

    Timber severed from the debtor’s land is not subject to the general lien of a judgment, since the judgment lien confers no right on the creditor before levy to sue for waste. The same is true of rents and profits from real estate. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    For a judgment debtor has a right to cut fire wood and timber upon his land previous to a levy, and it follows that such wood and timber cut, but not removed, becomes his personal property, and do not pass by a levy upon, and sale of, the land. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    Creditor cannot follow proceeds of sale. —

    If a judgment debtor should sell his estate, he judgment creditor has no right to follow the proceeds of the sale into the hands of vendor or vendee, or to claim the purchase money in the hands of the vendee. The creditor’s remedy is against the thing itself. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    The lien of a judgment did not extend to the proceeds of part of the land sold by a purchaser with notice to purchasers without notice. The lien of a judgment attaches to the debtor’s land, but not to the proceeds of the sale thereof. And the judgment creditor’s contention that the proceeds should have been considered held in constructive trust came too late because raised for the first time in her brief on appeal, and furthermore was not within the purview of her assignment of error. Orphanoudakis v. Orphanoudakis, 199 Va. 142 , 98 S.E.2d 676, 1957 Va. LEXIS 172 (1957).

    C.Property Subject to Lien.

    Property fraudulently conveyed. —

    A properly docketed judgment lien attaches also to property which the judgment debtor has conveyed away in fraud of the judgment creditor. Bartl v. G. Weinberger & Co. (In re Claxton), 32 Bankr. 215, 1983 Bankr. LEXIS 5662 (Bankr. E.D. Va.), aff'd, In re Claxton, 30 Bankr. 199, 1983 Bankr. LEXIS 6230 (Bankr. E.D. Va. 1983).

    Lien attaches to after-acquired property. —

    This section does not restrict operation of a judgment lien to property held by the judgment debtor at the time the lien arises. Rather, a properly docketed judgment lien will attach to after-acquired real estate as well. Bartl v. G. Weinberger & Co. (In re Claxton), 32 Bankr. 215, 1983 Bankr. LEXIS 5662 (Bankr. E.D. Va.), aff'd, In re Claxton, 30 Bankr. 199, 1983 Bankr. LEXIS 6230 (Bankr. E.D. Va. 1983).

    Discharge in bankruptcy made lien ineffective against real property acquired after commencement of bankruptcy proceedings. —

    Although lien was imposed on all of debtor’s real property interests in the county that were acquired after judgment creditor’s judgment was recorded, debtor’s discharge in bankruptcy made the lien ineffective as to any real property interests in the county that debtor acquired after the commencement of his bankruptcy proceedings. Leasing Serv. Corp. v. Justice, 243 Va. 441 , 416 S.E.2d 439, 8 Va. Law Rep. 2783, 1992 Va. LEXIS 35 (1992).

    Property held by the entirety where one spouse files for bankruptcy. —

    The interest of one spouse in tenants by the entirety property is not subject to execution by the creditor of that one spouse only. Creditors holding joint debts, however, may subject entireties property to satisfy their claims and can obtain relief to enforce such a joint debt when one of the spouses seeks relief in a liquidation under Chapter 7 of Title 11 of the United States Code. Stern Shoe Repair Co. v. Menefee, 22 Bankr. 425, 1982 Bankr. LEXIS 3536 (Bankr. E.D. Va. 1982).

    Where a husband has filed a wage earner plan under Chapter 13 of the Bankruptcy Reform Act of 1978, the creditor on a joint debt of the husband and wife is entitled to relief from the automatic stay granted under 11 U.S.C. § 362 so as to enable it to obtain a lien on real property held by the entirety. However, should the plan be confirmed, the creditor would be enjoined from foreclosing or otherwise enforcing the lien during the life of the plan. Stern Shoe Repair Co. v. Menefee, 22 Bankr. 425, 1982 Bankr. LEXIS 3536 (Bankr. E.D. Va. 1982).

    Transfer to tenants in common. —

    Even though a trustee avoided a debtor’s transfer of his townhouse as fraudulent under 11 U.S.C.S. § 550, the debtor conveyed the townhouse to himself and two other transferees as tenants in common and, thus, the creditors’ liens attached to the debtor’s interest in the townhouse when their judgments were docketed; therefore, the trustee was denied default judgment on his claim that the docketed judgments were not liens against the debtor’s townhouse. Gold v. United States, 352 Bankr. 416, 2006 Bankr. LEXIS 1891 (Bankr. E.D. Va. 2006).

    Judgment did not affect validity of underlying deed of trust. —

    Notwithstanding that a creditor sued on a note secured by a credit line deed of trust and was awarded a judgment lien, which it properly recorded under § 8.01-458 , the creditor’s credit line deed of trust note remained secured by the debtors’ property. In Virginia, a mortgage remained valid and enforceable until the debt was satisfied or the mortgage was released, and under § 55-58.2, a credit line deed of trust was a general term used to describe a variety of instruments, including a mortgage. Didlake v. Wachovia Bank, 454 Bankr. 349, 2011 Bankr. LEXIS 2928 (Bankr. W.D. Va. 2011).

    Section applies to decrees. —

    Since a decree for money, by express enactment, is embraced by the word “judgment,” the statute fixing the lien of a judgment applies equally to such decrees. Hockman v. Hockman, 93 Va. 455 , 25 S.E. 534 , 1896 Va. LEXIS 96 (1896).

    Lien is a legal one. —

    The lien of a judgment given by this section is a legal lien, and the judgment creditor can enforce it in a court of equity without pursuing his debtor’s personalty. The lien, being a plain legal one, expressly created by statute, cannot be judicially modified to soften the supposed hardship of secret encumbrances. Gurnee v. Johnson, 77 Va. 712 , 1883 Va. LEXIS 108 (1883); Hutchison v. Grubbs, 80 Va. 251 , 1885 Va. LEXIS 62 (1885); Blakemore v. Wise, 95 Va. 269 , 28 S.E. 332 , 1897 Va. LEXIS 35 (1897); Flanary v. Kane, 102 Va. 547 , 46 S.E. 312 , 1904 Va. LEXIS 101 (1904).

    It may be enforced immediately. —

    The debt evidenced by a judgment, unlike many obligations described in mortgages or deeds of trust, is past due. There is nothing to prevent its immediate enforcement. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    Judgment cannot be impaired by any act of the debtor. —

    When a judgment creditor has obtained his judgment and caused it to be docketed, his lien is perfect and complete, and cannot be defeated or impaired by any act of his debtor in which he did not participate. Strayer v. Long, 93 Va. 695 , 26 S.E. 409 , 1896 Va. LEXIS 127 (1896).

    But it is lost if third person acquires title by adverse possession. —

    It is true that the lien of a judgment may be indefinitely continued against the land of the judgment debtor in his possession, or of others holding titles derived from and in privity with him. But obviously the same rule cannot be applied to strangers who have acquired a perfect legal title not in privity with but adversely to the title of the judgment debtor. In other words, the life of a judgment may be indefinitely prolonged as to any property upon which it can operate, but whenever the right of the judgment debtor to make an entry on or bring an action to recover any land held adversely is tolled by § 8.01-236 , the right of his judgment creditor to subject land to the satisfaction of his judgment also ceases. The lien is a vested right, but not more so than the title to which the lien attaches, and when the statute of limitations destroys the latter it necessarily destroys the former. McClanahan’s Adm’r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 (1918). But see Flanary v. Kane, 102 Va. 547 , 46 S.E. 312 (1904), wherein it was held that § 8.01-236 did not apply to a suit to enforce a judgment lien .

    Judgment creditor has no interest in the land of his debtor. He has neither a jus in re nor a jus ad rem. He has no right to the possession. He has simply a lien upon the land, and the right to subject it to the discharge of that lien. McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918).

    He has no proprietary right, merely a right to levy. —

    A judgment lien is a right given the judgment creditor to have his claim satisfied by the seizure of the land of his judgment debtor. It is not a proprietary right in the lands of the judgment debtor, but merely a right to levy on any such lands for the purpose of satisfying the judgment to the exclusion or destruction of any right which may have accrued to others since the attachment of the lien. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    Title of debtor is not divested by entry of judgment. —

    When levy on real property is actually made by a judgment creditor under a judgment lien, the title of the creditor, for this purpose, relates back to the time of his judgment, so as to cut out intermediate incumbrances. But subject to this, the debtor has full power to sell or otherwise dispose of the land. His title to it is not divested or transferred, by the judgment, to the judgment creditor. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    Court may restrain acts tending to lessen value of lien. —

    If, in a suit to enforce a judgment lien on real property, it is shown that the owner of the land, or his assignee in possession, is doing any act that tends to lessen its value and to jeopardize the full satisfaction of the judgment, the act may be restrained until the land is, in due course, offered for sale. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    A decree for alimony constitutes a lien under this section upon all of the husband’s real estate from the date of such decree, not only for the installments presently due, but for those that shall fall due under such decree in the future; and where a temporary decree for alimony is subsequently made permanent, the lien for the whole amount dates from the date of the temporary decree. Issacs v. Issacs, 117 Va. 730 , 86 S.E. 105 , 1915 Va. LEXIS 88 (1915); Morris v. Henry, 193 Va. 631 , 70 S.E.2d 417, 1952 Va. LEXIS 174 (1952).

    Lien of decree for support of infant held to continue after father’s death. —

    Divorce decree directing defendant father to pay a certain sum monthly for alimony and support of his infant daughter, became a lien upon the land he then owned and which he conveyed less than two months later to his father, and the lien so created, to the extent that the amount thereof was for the benefit of the infant daughter, was intended to and did by said decree continue in effect after the death of her father, and until she became 21 (now 18) years old or self-supporting. Morris v. Henry, 193 Va. 631 , 70 S.E.2d 417, 1952 Va. LEXIS 174 (1952).

    A judgment rendered on a void process constitutes no lien. Lavell v. McCurdy, 77 Va. 763 , 1883 Va. LEXIS 113 (1883).

    Judgment liens were not affected by separation of West Virginia. —

    The lien of a judgment which had attached to land in either Virginia or West Virginia prior to the separation was not lost upon the division of these two states, whereby the county in which the judgment lien originally attached fell either within the one state or the other. Gatewood v. Goode, 64 Va. (23 Gratt.) 880, 1873 Va. LEXIS 75 (1873).

    Suit to set aside fraudulent conveyance does not postpone lien. —

    A judgment creditor’s bringing a suit to set aside as fraudulent a deed executed and recorded prior to the time the judgment was rendered does not postpone the lien of the judgment to the time of the bringing of the suit, or operate as an abandonment or waiver of the existing lien of the judgment against the property in the hands of the fraudulent grantee. Tucker v. Foster, 154 Va. 182 , 152 S.E. 376 , 1930 Va. LEXIS 207 (1930).

    Judgment against contingent remainderman becomes lien when remainder vests. —

    Under this section a judgment against a contingent remainderman is a lien on the after-acquired vested remainder in possession. Wilson v. Langhorne, 102 Va. 631 , 47 S.E. 871 , 1904 Va. LEXIS 110 (1904).

    The lien of a judgment reaches far. It reaches every interest of the judgment debtor in land which the record of the title shows that he had, either before or after the judgment was docketed, unless the record itself shows a previous transfer by deed duly recorded. It is always necessary, however, to show the judgment debtor’s present or former title to the specific land before the lien attaches. Miller v. Kemp, 157 Va. 178 , 160 S.E. 203 , 1931 Va. LEXIS 313 (1931).

    In equity judgments are liens on the whole of the debtor’s equitable estate. Haleys v. Williams, 28 Va. (1 Leigh) 140, 1829 Va. LEXIS 14 (1829) (see Withers v. Carter, 45 Va. (4 Gratt.) 407 (1848); Buchanan v. Clark, 51 Va. (10 Gratt.) 164 (1853)).

    A judgment creditor has a lien in equity on the equitable estate of the debtor, in like manner as he has a lien at law on his legal estate. Coutts v. Walker, 29 Va. (2 Leigh) 268, 1830 Va. LEXIS 34 (1830); Michaux v. Brown, 51 Va. (10 Gratt.) 612, 1854 Va. LEXIS 68 (1854).

    A judgment is a lien on an equity of redemption. Michaux v. Brown, 51 Va. (10 Gratt.) 612, 1854 Va. LEXIS 68 (1854); Hale v. Horne, 62 Va. (21 Gratt.) 112, 1871 Va. LEXIS 75 (1871); McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918).

    But lien is subject to prior deed of trust. —

    A creditor, whose judgment is subsequent to a deed of trust on the debtor’s land, has a lien only on the equity of redemption, and cannot have the deed of trust enforced, and the land sold to pay the debts thereby secured, until default. Wytheville Crystal Ice & Dairy Co. v. Frick Co., 96 Va. 141 , 30 S.E. 491 , 1898 Va. LEXIS 72 (1898); Shurtz v. Johnson, 69 Va. (28 Gratt.) 657, 1877 Va. LEXIS 91 (1877).

    For creditor gets only rights of debtor. —

    Where the recording acts do not interfere, the judgment creditor can acquire no better right to the estate than the debtor himself had at the date of the recovery of the judgment. Coldiron v. Asheville Shoe Co., 93 Va. 364 , 25 S.E. 238 , 1896 Va. LEXIS 83 (1896); McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918); Van Nostrand & Co. v. Virginia Zinc & Chem. Corp., 126 Va. 131 , 101 S.E. 65 , 1919 Va. LEXIS 81 (1919).

    Judgment against partnership is lien on real estate of partner. —

    A judgment against partners for a firm liability is a lien against the real estate of each partner, and has preference over an unsecured debt of a deceased partner in the administration of his assets. Pitts v. Spotts, 86 Va. 71 , 9 S.E. 501 , 1889 Va. LEXIS 10 (1889).

    Lien remains though judgment is suspended by injunction. —

    Though at the time of the conveyance, execution upon the judgment was suspended by an injunction, yet the judgment is a lien upon land in the hands of a purchaser. Craig v. Sebrell, 50 Va. (9 Gratt.) 131, 1852 Va. LEXIS 48 (1852) (see also Michaux v. Brown, 51 Va. (10 Gratt.) 612 (1854)).

    It binds subsequent improvements by grantee with notice. —

    The lien of a judgment against the grantor of lands binds improvements made on the land by a grantee who, at the date of his purchase, had constructive and actual notice of the judgment, and of a lis pendens to enforce it. Nixdorf v. Blount, 111 Va. 127 , 68 S.E. 258 , 1910 Va. LEXIS 14 (1910).

    Debtor must own some beneficial interest in land. —

    Before the lien of the judgment can attach, the judgment debtor must own, or have owned, some beneficial interest in the specific land involved. Miller v. Kemp, 157 Va. 178 , 160 S.E. 203 , 1931 Va. LEXIS 313 (1931).

    A judgment creditor cannot subject to the lien of his judgment real estate or any interest therein not owned by the debtor at or after the recovery of the judgment. Powell v. Bell, 81 Va. 222 , 1885 Va. LEXIS 25 (1885).

    Lien does not attach to interest of mortgagee. —

    A creditor whose debt is secured by deed of trust or mortgage on real estate has no such interest in the land conveyed as amounts to a right of property therein, or as would be bound by judgment against the creditor. Augusta Nat'l Bank v. Beard, 100 Va. 687 , 42 S.E. 694 , 1902 Va. LEXIS 76 (1902).

    Or to land held by debtor in constructive trust. —

    Where the purchase price of land is paid by one person while the legal title is conveyed to another, the latter has no beneficial interest in the land, and it is not bound by a judgment against him, as only the debtor’s beneficial interest in land can be subjected by his creditors. The debtor in such a case is a mere trustee, and has no beneficial interest. Straley v. Esser, 117 Va. 135 , 83 S.E. 1075 , 1915 Va. LEXIS 17 (1915) (see also Coldiron v. Asheville Shoe Co., 93 Va. 364 , 25 S.E. 238 (1896)).

    Or to land of which he has had only transitory seisin. —

    Transitory seisin is not such an interest as becomes subject to a lien of a judgment. Hence, where land is conveyed to judgment debtor, and eo instante reconveyed by him to trustee to secure the purchase money, he has no interest subject to the judgment lien as against the trust deed. Straus v. Bodeker, 86 Va. 543 , 10 S.E. 570 , 1889 Va. LEXIS 69 (1889); Charlottesville Hdwe. Co. v. Perkins, 118 Va. 34 , 86 S.E. 869 , 1915 Va. LEXIS 120 (1915); Moomaw v. Jordan, 118 Va. 414 , 87 S.E. 569 , 1916 Va. LEXIS 22 (1916).

    Facts insufficient to show equitable title in third person. —

    Where land was conveyed to a land company by an unconditional deed without reservation of lien or any right of any other sort, and the deed showed on its face that the land was bought from the grantor by three of the directors of the company, and that it was conveyed to the company at the instance and request of these directors, who had assigned the benefit of their purchase to the company, and the company caused the land to be platted, and sold various lots to different purchasers, and conveyed the same to them, in some of which conveyances the directors united, stating that the conveyance to the company had been made at their instance and request, and there was no evidence that the directors had any equity whatsoever in the land, the land was bound by judgments against the company. Overstreet v. Griffin, 119 Va. 678 , 89 S.E. 879 , 1916 Va. LEXIS 141 (1916).

    Lands aliened before judgment are not subject to lien. —

    Aside from any question of recordation, judgments acquired after lands have been aliened to a purchaser in good faith and for value do not attach as liens to such land. Bowman v. Hicks, 80 Va. 806 , 1885 Va. LEXIS 115 (1885).

    Unless conveyed in fraud of creditor. —

    If a judgment has been duly rendered and docketed, it is a lien both upon the real estate then held by the judgment debtor and also upon any real estate, which he may have conveyed in fraud of such judgment creditor, after the debt was contracted and before judgment was rendered. Matney v. Combs, 171 Va. 244 , 198 S.E. 469 , 1938 Va. LEXIS 277 (1938).

    And lien on land fraudulently conveyed is subject to superior equities. —

    When a judgment has been rendered and duly docketed the effect thereof is to impose a lien both upon the real estate then held by the judgment debtor and also upon any that he may have theretofore conveyed away in fraud of the judgment creditor after his debt was contracted and before judgment was rendered, subject of course in the latter case to the superior equities of bona fide purchasers for value and without notice. Tucker v. Foster, 154 Va. 182 , 152 S.E. 376 , 1930 Va. LEXIS 207 (1930).

    No lien attaches to personal property. —

    Under this section a decree for alimony and suit money constitutes a lien on the real estate of the husband. There is no suggestion that such a lien attaches to the personal property of the husband. This omission in the statute is fatal to the contention that a court of equity has the inherent power to impound the personal property of the husband to secure the payment of alimony and support money. Ring v. Ring, 185 Va. 269 , 38 S.E.2d 471, 1946 Va. LEXIS 198 (1946).

    Timber severed from the debtor’s land is not subject to the general lien of a judgment, since the judgment lien confers no right on the creditor before levy to sue for waste. The same is true of rents and profits from real estate. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    For a judgment debtor has a right to cut fire wood and timber upon his land previous to a levy, and it follows that such wood and timber cut, but not removed, becomes his personal property, and do not pass by a levy upon, and sale of, the land. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    Creditor cannot follow proceeds of sale. —

    If a judgment debtor should sell his estate, he judgment creditor has no right to follow the proceeds of the sale into the hands of vendor or vendee, or to claim the purchase money in the hands of the vendee. The creditor’s remedy is against the thing itself. Jones v. Hall, 177 Va. 658 , 15 S.E.2d 108, 1941 Va. LEXIS 250 (1941).

    The lien of a judgment did not extend to the proceeds of part of the land sold by a purchaser with notice to purchasers without notice. The lien of a judgment attaches to the debtor’s land, but not to the proceeds of the sale thereof. And the judgment creditor’s contention that the proceeds should have been considered held in constructive trust came too late because raised for the first time in her brief on appeal, and furthermore was not within the purview of her assignment of error. Orphanoudakis v. Orphanoudakis, 199 Va. 142 , 98 S.E.2d 676, 1957 Va. LEXIS 172 (1957).

    OPINIONS OF THE ATTORNEY GENERAL

    Where judgment does not detail a specific monetary award, it may be entered in the judgment docket or in the order book, or in any other record deemed suitable, in accord with local practice and the sound discretion of the clerk. See opinion of Attorney General to The Honorable John T. Frey, Clerk, Fairfax County Circuit Court, 10-011, (7/8/10).

    § 8.01-459. Priority of judgments.

    Judgments against the same person shall, as among themselves, attach to his real estate, and be payable thereout in the order of the priority of the lien of such judgments, respectively.

    History. Code 1950, § 8-387; 1977, c. 617.

    REVISERS’ NOTE

    The language “the lien of” has been inserted in former § 8-387.

    Law Review.

    For article on fraudulent conveyances and preferences in Virginia, see 36 Wash. & Lee L. Rev. 51 (1979).

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 80.

    CASE NOTES

    Lis pendens is not a lien or a judgment. It is merely notice that an action is pending, seeking to obtain a judgment. Cavalier Serv. Corp. v. Wise, 645 F. Supp. 31, 1986 U.S. Dist. LEXIS 23317 (E.D. Va. 1986).

    In equity, whole estate must be applied first to elder judgment. —

    In equity, judgments are liens on the whole of the debtor’s equitable estate, and the whole is first to be applied to the elder judgment, then the whole of the residue to the junior judgment, and in neither case is only a moiety to be applied to their satisfaction. Haleys v. Williams, 28 Va. (1 Leigh) 140, 1829 Va. LEXIS 14 (1829) (see Withers v. Carter, 45 Va. (4 Gratt.) 407 (1848); Buchanan v. Clark, 51 Va. (10 Gratt.) 164 (1853). Cases cited above were decided under prior similar provisions).

    § 8.01-460. Decree for support and maintenance of spouse or infant children of parties as lien on real estate.

    A decree, order or judgment for support and maintenance of a spouse or of infant children of the parties payable in future installments or a monetary award for future installments as provided for in § 20-107.3 , shall be a lien upon such real estate of the obligor as the court shall, from time to time, designate by order or decree. An order after reasonable notice to the obligor adjudicating that the obligor is delinquent, shall be a lien on the obligor’s real estate. Liens under this section shall arise when duly docketed in the manner prescribed for the docketing of other judgments for money; however, no such decree, order or judgment for support and maintenance or for a monetary award in accordance with § 20-107.3 shall be docketed unless so ordered by the court in such decree, order or judgment. On petition by any interested person and after reasonable notice to the obligee, the court in which the obligor was adjudicated delinquent may order the release or other modification of such lien.

    The lien may also be released upon agreement of all persons for whom support and maintenance is ordered under the decree, order or judgment, provided all such persons are sui juris. The clerk shall note the release on the record upon receipt of an affidavit from all the obligees stating that (i) all the obligees are sui juris and (ii) they agreed to the release of the lien on specified real property. Any lien created pursuant to this section shall expire upon the support obligation being paid in full by the obligor. The clerk may release such liens upon receipt of an affidavit of all the obligees that such support obligation has been paid in full, or upon an order or decree of a court of competent jurisdiction.

    History. Code 1950, § 8-388; 1977, c. 617; 1979, c. 496; 1985, c. 529; 1989, c. 8.

    REVISERS’ NOTE

    A change has been made in former § 8-388 so that the lien for maintenance and support of a spouse or infant children arises only after the order adjudicating the obligor delinquent and creating the lien has been docketed as other money judgments are docketed. The lien shall attach to such real estate of the obligor as the court shall designate and shall be subject to modification by the court upon petition.

    Cross references.

    For statutes on decrees for maintenance and support of spouses and custody and support of children, see §§ 20-107.1 and 20-107.2 .

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Divorce and Alimony, § 73.

    CASE NOTES

    Monetary award in equitable distribution proceedings. —

    A party who is granted a monetary award in an equitable distribution proceeding is in the same position as any other judgment creditor and has the same enforcement remedies available. Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569, 5 Va. Law Rep. 237, 1988 Va. App. LEXIS 86 (1988).

    Chancellor may provide that payments shall not be a lien. —

    It is within the sound discretion of the chancellor to provide that alimony and support (now maintenance and support) payments should not be a lien upon the real estate of the party required to make such payments. Canavos v. Canavos, 205 Va. 744 , 139 S.E.2d 825, 1965 Va. LEXIS 129 (1965) (decided under prior law).

    A decree for payments in lieu of alimony (now maintenance and support), approving a contract between the parties, is not a lien on the realty of the husband. Durrett v. Durrett, 204 Va. 59 , 129 S.E.2d 50, 1963 Va. LEXIS 115 (1963) (decided under prior law).

    OPINIONS OF THE ATTORNEY GENERAL

    Where judgment does not detail a specific monetary award, it may be entered in the judgment docket or in the order book, or in any other record deemed suitable, in accord with local practice and the sound discretion of the clerk. See opinion of Attorney General to The Honorable John T. Frey, Clerk, Fairfax County Circuit Court, 10-011, (7/8/10).

    § 8.01-461. Abstracts of judgments.

    An abstract of any judgment shall, upon request to the clerk of the court wherein the judgment is rendered, be granted to any person interested immediately upon its rendition, subject to the future action of the court rendering the same.

    History. Code 1950, § 8-389; 1977, c. 617; 1982, c. 105.

    § 8.01-462. Jurisdiction of equity to enforce lien of judgment; when it may decree sale.

    Jurisdiction to enforce the lien of a judgment shall be in equity. If it appear to the court that the rents and profits of all real estate subject to the lien will not satisfy the judgment in five years, the court may decree such real estate, or any part thereof, to be sold, and the proceeds applied to the discharge of the judgment.

    History. Code 1950, § 8-391; 1977, c. 617.

    Cross references.

    As to enforcement of judgment lien by Commonwealth, see §§ 8.01-211 through 8.01-215 .

    As to limitations on enforcement of judgments, see § 8.01-251 .

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Creditors’ Suits, §§ 11, 15, 33, 39.

    CASE NOTES

    Analysis

    I.General Consideration.

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, may refer to former provisions.

    This section applies only to suits for the enforcement of judgment liens. Neff v. Wooding, 83 Va. 432 , 2 S.E. 731 , 1887 Va. LEXIS 88 (1887).

    It does not apply to suits to enforce vendor’s lien. —

    The court may decree a sale of land to satisfy a vendor’s lien, as distinguished from a judgment lien, without ascertaining whether the rents and profits would be sufficient to pay within five years. Neff v. Wooding, 83 Va. 432 , 2 S.E. 731 , 1887 Va. LEXIS 88 (1887).

    Or deeds of trust. —

    In a suit to enforce a trust deed the value of the rents and profits of the land is immaterial, as the deed is not a judgment within the meaning of this section. Kyger v. Sipe, 89 Va. 507 , 16 S.E. 627 , 1892 Va. LEXIS 127 (1892).

    Or to suits to subject decedents’ lands to payment of debts. —

    This section limits the jurisdiction of the court in the sale of real estate to enforce a judgment lien, and applies to a suit in equity brought to subject the lands of a living debtor to the “lien of a judgment” thereon. It has no application to an equity suit to subject the lands of a decedent to the payment of his debts. Morrison v. Morrison, 177 Va. 417 , 14 S.E.2d 322, 1941 Va. LEXIS 228 (1941).

    Suit is not one to recover land. —

    The suit of a judgment creditor to enforce his lien against land is not a suit to recover the land itself. McClanahan's Adm'r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 , 1918 Va. LEXIS 137 (1918).

    Jurisdiction extends only as far as is necessary to enforce lien. —

    Jurisdiction in equity to enforce the lien of a judgment against real estate is conferred by this section, but such jurisdiction extends only so far as may be necessary to satisfy the judgment lien. Tacklett v. Bolling, 172 Va. 326 , 1 S.E.2d 285, 1939 Va. LEXIS 241 (1939).

    But court may do complete justice between parties. —

    Equity has jurisdiction of a bill to enforce a judgment lien under this section, and having acquired jurisdiction for this purpose, it will go on and do complete justice between the parties, even to the extent of enforcing purely legal demands of which it would not otherwise have jurisdiction. Steinman v. Clinchfield Coal Corp., 121 Va. 611 , 93 S.E. 684 , 1917 Va. LEXIS 63 (1917); Moorman v. Board, 121 Va. 112 , 92 S.E. 833 , 1917 Va. LEXIS 15 (1917).

    Doctrine of laches has no application. —

    The equitable doctrine of laches has no application to a suit in equity to enforce against the lands of a defendant the lien of a judgment which has been kept alive and is not barred by the statute of limitations. The creditor is seeking to enforce a legal, and not an equitable right, expressly conferred by statute and not subject to terms or conditions. Motley v. Carstairs, McCall & Co., 114 Va. 429 , 76 S.E. 948 , 1913 Va. LEXIS 103 (1913); McClanahan's Adm'r v. Norfolk & W. Ry., 118 Va. 388 , 87 S.E. 731 , 1916 Va. LEXIS 21 (1916).

    Nor has rule that one seeking equity must do equity. —

    A judgment creditor who comes into a court of equity to enforce his lien upon the debtor’s land is not asserting an equitable right or seeking relief which it is in the courts’ equitable discretion to grant or deny. His judgment is a legal lien created expressly by statute. Hence, while it is an ordinary rule of the courts of chancery that he who seeks equity must do equity, this principle has no application here because the judgment creditor’s right to resort to the court of equity to enforce his lien is a legal right, without terms and conditions imposed. Motley v. Carstairs, McCall & Co., 114 Va. 429 , 76 S.E. 948 , 1913 Va. LEXIS 103 (1913).

    Remedies available to judgment creditor. —

    In Morrison v. Morrison, 177 Va. 417 , 14 S.E.2d 322 (1941), a suit brought under the predecessor to § 64.2-532 , the court merely stated that an instance in which the ancestor to former § 8-391 may be applied is to a suit in equity brought to subject the lands of a living debtor to the lien of a judgment thereon. The Morrison court then recognized the two different remedies with separate rules of law available to a judgment creditor, one a general creditors’ suit, and another the judgment-lien creditor’s suit brought either while the judgment debtor is living or after such debtor dies. Maness v. Tidewater Sand Co., 220 Va. 1042 , 266 S.E.2d 438, 1980 Va. LEXIS 199 (1980).

    Creditor need not have exhausted remedy at law. —

    Equity now has jurisdiction to enforce a judgment lien against the land of the debtor, notwithstanding the judgment creditor has not exhausted his remedy at law. Price v. Thrash, 71 Va. (30 Gratt.) 515, 1878 Va. LEXIS 79 (1878); Gordon v. Rixey, 76 Va. 694 , 1882 Va. LEXIS 69 (1882); Stovall v. Border Grange Bank, 78 Va. 188 , 1883 Va. LEXIS 27 (1883); Hutchison v. Grubbs, 80 Va. 251 , 1885 Va. LEXIS 62 (1885); Moore v. Bruce, 85 Va. 139 , 7 S.E. 195 , 1888 Va. LEXIS 20 (1888).

    He need not proceed first against personalty. —

    A judgment creditor, if he so elects, may resort to a court of equity to enforce the lien of his judgment against the real estate of his debtor, without first proceeding by execution at law to subject the personal estate, or assigning any reason for not doing so. Stovall v. Border Grange Bank, 78 Va. 188 , 1883 Va. LEXIS 27 (1883).

    A judgment creditor having established his debt against the judgment debtor during the debtor’s lifetime has the right to look to the deceased debtor’s estate, real and personal, as equally liable. This is a right the creditor may properly exercise, unless some equitable reason demands he proceed first against the personal estate, and the creditor is not compelled to look to the realty merely as a secondary fund for payment. Maness v. Tidewater Sand Co., 220 Va. 1042 , 266 S.E.2d 438, 1980 Va. LEXIS 199 (1980).

    Or show want of personal assets, or issue of fi. Fa. —

    A judgment creditor may file a bill to subject real estate of his debtor to the satisfaction of his judgment lien without alleging or proving want of personal assets, and without issuing a fi. fa. Moore v. Bruce, 85 Va. 139 , 7 S.E. 195 , 1888 Va. LEXIS 20 (1888).

    Judgment need not be revived against personal representative of debtor. —

    A bill in equity may be maintained against the personal representative of a decedent and his devisees or heirs at law, to subject the real estate of the decedent to the payment of a judgment recovered against him in his lifetime, without first reviving the judgment at law. James v. Life, 92 Va. 702 , 24 S.E. 275 , 1896 Va. LEXIS 33 (1896).

    Proceeding by judgment creditor held general creditors’ suit under former § 64.1-181 [now see § 64.2-532 ]. —

    See Peatross v. Gray, 181 Va. 847 , 27 S.E.2d 203, 1943 Va. LEXIS 233 (1943).

    II.Judicial Sale or Renting.

    All other liens on land should be ascertained. —

    Where there are various liens on the land of a debtor, it is premature and erroneous to decree a sale of the land to satisfy certain liens, without first ascertaining all the liens existing against the land, and determining and definitely fixing their respective amounts and priorities. Daingerfield v. Smith, 83 Va. 81 , 1 S.E. 599 , 1887 Va. LEXIS 42 (1887); Adkins v. Edwards, 83 Va. 300 , 2 S.E. 435 , 1887 Va. LEXIS 68 (1887); Alexander v. Howe, 85 Va. 198 , 7 S.E. 248 , 1888 Va. LEXIS 28 (1888); Houck v. Dunham, 92 Va. 211 , 23 S.E. 238 , 1895 Va. LEXIS 106 (1895); Fidelity Loan & Trust Co. v. Dennis, 93 Va. 504 , 25 S.E. 546 , 1896 Va. LEXIS 104 (1896).

    And all impediments to fair sale removed. —

    Before a sale is decreed, any cloud on the title or other impediment of any kind to a fair sale ought to be removed, as far as it is practicable to do so, in order that the land may be sold to the best advantage. Alexander v. Howe, 85 Va. 198 , 7 S.E. 248 , 1888 Va. LEXIS 28 (1888); Brown v. Lawson, 86 Va. 284 , 9 S.E. 1014 , 1889 Va. LEXIS 35 (1889); Thomas v. Farmers' Nat'l Bank, 86 Va. 291 , 9 S.E. 1122 , 1889 Va. LEXIS 37 (1889).

    Inquiry should be held as to rents and profits. —

    Where the insufficiency of the rents and profits is not alleged, or is alleged and denied, there must be an inquiry, and the court must ascertain the annual value of the rents and profits with a reasonable certainty before decreeing a sale. Ewart v. Saunders, 66 Va. (25 Gratt.) 203, 1874 Va. LEXIS 49 (1874); Muse v. Friedenwald, 77 Va. 57 , 1883 Va. LEXIS 36 (1883); Neff v. Wooding, 83 Va. 432 , 2 S.E. 731 , 1887 Va. LEXIS 88 (1887).

    And rents and profits compared with debt. —

    Before a sale of realty can be decreed to pay judgment liens, the court must, in some way, be convinced that the rents and profits will not in five years satisfy those liens. Preston v. Aston, 85 Va. 104 , 7 S.E. 344 , 1888 Va. LEXIS 16 (1888); Cooper v. Daugherty, 85 Va. 343 , 7 S.E. 387 , 1888 Va. LEXIS 41 (1888); Dillard v. Krise, 86 Va. 410 , 10 S.E. 430 , 1889 Va. LEXIS 57 (1889); Mustain v. Pannill, 86 Va. 33 , 9 S.E. 419 , 1889 Va. LEXIS 4 (1889); Kyger v. Sipe, 89 Va. 507 , 16 S.E. 627 , 1892 Va. LEXIS 127 (1892); Etter v. Scott, 90 Va. 762 , 19 S.E. 776 , 1894 Va. LEXIS 62 (1894); Kane v. Mann, 93 Va. 239 , 24 S.E. 938 , 1896 Va. LEXIS 70 (1896).

    But inquiry may be waived. —

    If none of the parties ask for an inquiry to ascertain whether the rents and profits will pay the debt in the requisite period, they are presumed to have waived it, and there may be a decree for the sale of the property. M'Clung v. Beirne, 37 Va. (10 Leigh) 394, 1839 Va. LEXIS 43 (1839); Brengle v. Richardson, 78 Va. 406 , 1884 Va. LEXIS 16 (1884).

    Section prescribes no particular method of comparison. —

    This section prescribes no particular mode by which it shall be made to appear that the rents and profits will not pay the judgment in five years. Ewart v. Saunders, 66 Va. (25 Gratt.) 203, 1874 Va. LEXIS 49 (1874); Horton v. Bond, 69 Va. (28 Gratt.) 815, 1877 Va. LEXIS 105 (1877); Muse v. Friedenwald, 77 Va. 57 , 1883 Va. LEXIS 36 (1883); Brengle v. Richardson, 78 Va. 406 , 1884 Va. LEXIS 16 (1884); Neff v. Wooding, 83 Va. 432 , 2 S.E. 731 , 1887 Va. LEXIS 88 (1887).

    Inadequacy of rents and profits may be shown by pleadings or admissions. —

    The fact that the rents and profits of the lands will not discharge the judgment in five years, may be shown by the pleadings or by the admissions of the parties. Effinger v. Kenney, 79 Va. 551 , 1884 Va. LEXIS 112 (1884); Etter v. Scott, 90 Va. 762 , 19 S.E. 776 , 1894 Va. LEXIS 62 (1894).

    Or court may direct commissioner to report. —

    When there is a doubt whether or not the rents and profits will pay the judgments in five years, or an inquiry is demanded by either of the parties, the court will generally direct one of its commissioners to ascertain and report the annual rents and profits of the land. But this is not necessary in every case. Ewart v. Saunders, 66 Va. (25 Gratt.) 203, 1874 Va. LEXIS 49 (1874); Muse v. Friedenwald, 77 Va. 57 , 1883 Va. LEXIS 36 (1883); Cooper v. Daugherty, 85 Va. 343 , 7 S.E. 387 , 1888 Va. LEXIS 41 (1888).

    Commissioner should report on all lands of debtor. —

    Where there has been a reference to ascertain whether the property would rent for a sufficient sum in five years to pay the indebtedness, the commissioner should consider and report the rental value of all lands owned by defendant, including those in counties other than the one in which the suit was brought. Kane v. Mann, 93 Va. 239 , 24 S.E. 938 , 1896 Va. LEXIS 70 (1896).

    But lands of debtor’s wife are not to be considered. —

    Upon the creditor’s bill to subject lands of a debtor to the payment of the lien of judgments thereon, the debtor cannot, by any agreement with his wife, who is not a party to the suit, and is in no wise bound for the judgments, have the rents and profits of her lands considered in an estimate to ascertain whether the rents and profits of his lands for five years will pay and satisfy the judgments. Kane v. Mann, 93 Va. 239 , 24 S.E. 938 , 1896 Va. LEXIS 70 (1896).

    Terms of renting are in discretion of court. —

    The terms of renting, whether the rents shall be payable annually or at shorter periods, must be determined by the court before whom the cause is pending, in the exercise of a sound discretion and in the light of all the circumstances, such as the character of the property, its locality, the usage of the country, etc. Compton v. Tabor, 73 Va. (32 Gratt.) 121, 1879 Va. LEXIS 52 (1879).

    Land should generally be offered first for one year. —

    In general, to ascertain whether the rents will pay the debts in five years, the commissioner should be directed to offer the land first for one year and so on, if necessary, up to five years, closing the contract whenever the rents will pay the debt. Compton v. Tabor, 73 Va. (32 Gratt.) 121, 1879 Va. LEXIS 52 (1879).

    CIRCUIT COURT OPINIONS

    Confirmation of sale. —

    Because the high bid at a judicial sale of a creditor’s judgment lien was grossly inadequate and was not even sufficient to pay the first deed of trust, much less any money towards the creditor’s judgment, the court declined to confirm the sale. Asphalt Ready Mix, Inc. v. Beckner, 70 Va. Cir. 428, 2006 Va. Cir. LEXIS 160 (Roanoke County June 9, 2006).

    § 8.01-463. Enforcement of lien when judgment does not exceed $25,000.

    If the amount of the judgment does not exceed $25,000, exclusive of interest and costs, no bill to enforce the lien, pursuant to § 8.01-462 , thereof shall be entertained if the real estate is the judgment debtor’s primary residence.

    History. Code 1950, § 8-392; 1977, c. 617; 2021, Sp. Sess. I, cc. 91, 92.

    REVISERS’ NOTE

    The provisions of former §§ 8-393 (When suit to enforce lien of judgment barred in equity), 8-394 (When right of subrogation enforced . . .), 8-396 (Limitation of proceedings to enforce judgment) and 8-397 (Provision construing and qualifying § 8-396) have been transferred to § 8.01-251 .

    The 2021 Sp. Sess. I amendments.

    The 2021 amendments by Sp. Sess. I, cc. 91 and 92, effective July 1, 2021, are identical, and rewrote the section, which read “If the amount of the judgment does not exceed twenty dollars, exclusive of interest and costs, no bill to enforce the lien thereof shall be entertained, unless it appear that thirty days before the institution of the suit, the judgment debtor or his personal representative, and the owner of the real estate on which the judgment is a lien, or, in case of a nonresident, his agent or attorney, if he had one in this Commonwealth, had notice that the suit would be instituted, if the judgment was not paid within that time.”

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Creditors’ Suits, § 5.

    CASE NOTES

    The evident purpose of this section is to spare a judgment debtor the expense of a suit brought to enforce the lien of a judgment in such a small amount until he shall have been given a final opportunity of paying the claim. Sutherland v. Rasnake, 169 Va. 257 , 192 S.E. 695 , 1937 Va. LEXIS 173 (1937) (decided under prior law).

    The requirement of notice is mandatory. Sutherland v. Rasnake, 169 Va. 257 , 192 S.E. 695 , 1937 Va. LEXIS 173 (1937) (decided under prior law).

    For it is jurisdictional. —

    The requirement of the notice is jurisdictional. The language is, “. . . no bill to enforce the lien thereof shall be entertained” — that is, no suit shall be brought — unless it appear that 30 days before the institution of the suit the required notice has been given. Sutherland v. Rasnake, 169 Va. 257 , 192 S.E. 695 , 1937 Va. LEXIS 173 (1937) (see Chaney v. Kibler, 171 Va. 194 , 198 S.E. 877 (1938)) (decided under prior law).

    § 8.01-464. Order of liability between alienees of different parts of estate.

    When the real estate liable to the lien of a judgment is more than sufficient to satisfy the same, and it, or any part of it, has been aliened, as among the alienees for value, that which was aliened last, shall, in equity, be first liable, and so on with other successive alienations, until the whole judgment is satisfied. And as among alienees who are volunteers under such judgment debtor, the same rule as to the order of liability shall prevail; but as among alienees for value and volunteers, the lands aliened to the latter shall be subjected before the lands aliened to the former are resorted to; and, in either case, any part of such real estate retained by the debtor shall be first liable to the satisfaction of the judgment. An alienee for value, however, from a volunteer shall occupy the same position that he would have occupied had he purchased from the debtor at the time he purchased from the voluntary donee.

    History. Code 1950, § 8-395; 1977, c. 617.

    Cross references.

    As to limitations on enforcement of judgments, see § 8.01-251 et seq.

    Michie’s Jurisprudence.

    For related discussion, see 4B M.J. Contribution and Exoneration, § 35.

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under corresponding provisions of former law. The terms “this section,” as used below, refers to former provisions.

    Land retained by debtor should be first subjected. —

    If the judgment debtor retains sufficient lands to pay the judgment, they should be first subjected. Dickerson v. Clement, 87 Va. 41 , 12 S.E. 105 , 1890 Va. LEXIS 87 (1890); Blakemore v. Wise, 95 Va. 269 , 28 S.E. 332 , 1897 Va. LEXIS 35 (1897).

    For aliened land is only secondarily liable. —

    Lands being liable for judgments in the inverse order of alienation, those primarily liable should be first subjected before proceeding against the purchaser, whose land is only secondarily liable. Nelson v. Turner, 97 Va. 54 , 33 S.E. 390 , 1899 Va. LEXIS 10 (1899).

    Land is chargeable in inverse order of alienation. —

    The law is now well settled that where land which is subject to the lien of a judgment or other incumbrance is sold in parcels to different persons by successive alienations, it is chargeable in the hands of the purchaser in the inverse order of such alienations. This rule is not only established by the decisions of courts of equity, but in Virginia it is prescribed by this section. Harman v. Oberdorfer, 74 Va. (33 Gratt.) 497, 1880 Va. LEXIS 58 (1880); Whitten v. Saunders, 75 Va. 563 , 1881 Va. LEXIS 40 (1881) (see also Schultz v. Hansbrough, 74 Va. (33 Gratt.) 567 (1880); Miller v. Holland, 84 Va. 652 , 5 S.E. 701 (1888)).

    And lands sold contemporaneously must contribute pro rata. —

    But where the different parcels of land are sold contemporaneously they must contribute pro rata to the satisfaction of the judgment. Harman v. Oberdorfer, 74 Va. (33 Gratt.) 497, 1880 Va. LEXIS 58 (1880).

    Date of deed is presumed to be time of alienation. —

    Without evidence of any preceding executory agreements between the parties, or any evidence of the time of the delivery of deeds, except what may be inferred from their duties, it will be presumed that the dates on the deeds are the dates of their delivery, and the land conveyed by the last dated deed will be first liable. Harman v. Oberdorfer, 74 Va. (33 Gratt.) 497, 1880 Va. LEXIS 58 (1880).

    But lands sold under contemporaneous identical contracts are sold contemporaneously. —

    Where several lots of land are sold on the same day, on the same terms of several parties, all of whom are immediately put in possession under the same agreement as to the deeds conveying the lots, and the trust deed to secure the purchase money, although the deeds conveying them are really delivered and recorded at different times, they will all be regarded as “alienations” as of the day of sale, and, in subjecting them to the payment of a judgment docketed against a vendor at the time of the sale, each lot must bear its proportion, according to their relative values on the day of sale. Alley v. Rogers, 60 Va. (19 Gratt.) 366, 1869 Va. LEXIS 9 (1869); Harman v. Oberdorfer, 74 Va. (33 Gratt.) 497, 1880 Va. LEXIS 58 (1880).

    Alienee must allege or prove that land is more than sufficient. —

    Where it nowhere appears, and it has not been suggested as a fact, that real estate to liens is more than sufficient to satisfy the same, a person intending to rely upon the land’s being more than sufficient should allege the fact by answer or establish it by proof. Preston v. National Exch. Bank, 97 Va. 222 , 33 S.E. 546 , 1899 Va. LEXIS 30 (1899).

    § 8.01-465. Chapter embraces recognizances and bonds having force of judgment.

    The foregoing sections of this chapter, so far as they relate to the docketing of judgments, the entering of satisfaction thereof, and the liens of judgments and enforcement of such liens, shall be construed as embracing recognizances, and bonds having the force of a judgment.

    History. Code 1950, § 8-398; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 48.

    CASE NOTES

    Enforcement of gambling debts. —

    The mandate of the Full Faith and Credit clause prevails over Virginia’s strongly-expressed policy which prohibits the enforcement of gambling debts. Coghill v. Boardwalk Regency Corp., 240 Va. 230 , 396 S.E.2d 838, 1990 Va. LEXIS 113 (1990).

    Chapter 17.1. Uniform Enforcement of Foreign Judgments Act.

    § 8.01-465.1. Application of chapter.

    As used in this chapter “foreign judgment” means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.

    History. 1988, c. 539.

    Uniform law cross references.

    For other signatory state provisions, see:

    Alabama: Code of Ala. §§ 6-9-230 to 6-9-238.

    Arizona: A.R.S. §§ 12-1701 to 12-1708.

    Arkansas: A.C.A. §§ 16-66-601 to 16-66-608.

    Colorado: C.R.S. §§ 13-53-101 to 13-53-108.

    Connecticut: Conn. Gen. Stat. §§ 52-604 to 52-609.

    Delaware: 10 Del. C. §§ 4781 to 4787.

    District of Columbia: D.C. Code §§ 15-351 to 15-357.

    Florida: Fla. Stat. §§ 55.501 to 55.509.

    Georgia: O.C.G.A. §§ 9-12-130 to 9-12-138.

    Hawaii: H.R.S. §§ 636C-1 to 636C-8.

    Idaho: Idaho Code § 10-1301 et seq.

    Iowa: Iowa Code §§ 626A.1 to 626A.8.

    Kansas: K.S.A. §§ 60-3001 to 60-3008.

    Kentucky: K.R.S. §§ 426.950 to 426.990.

    Maine: 14 M.R.S. §§ 8001 to 8008.

    Maryland: Md. Courts and Judicial Proceedings Code Ann. §§ 11-801 to 11-807.

    Minnesota: Minn. Stat. §§ 548.26 to 548.33.

    Mississippi: Miss. Code Ann. §§ 11-7-301 to 11-7-309.

    Missouri: Mo. Rev. Stat. § 511.760.

    Montana: Mont. Code Anno. §§ 25-9-501 to 25-9-508.

    Nebraska: R.R.S. Neb §§ 25-1587.01 to 25-1587.09.

    Nevada: Nev. Rev. Stat. Ann. §§ 17.330 to 17.400.

    New Hampshire: R.S.A. §§ 524-A:1 to 524-A:8.

    New Jersey: N.J. Stat. §§ 2A:49A-25 to 2A:49A-33.

    New Mexico: N.M. Stat. Ann. §§ 39-4A-1 to 39-4A-6.

    New York: NY CLS CPLR §§ 5401 to 5408.

    North Carolina: N.C. Gen. Stat. §§ 1C-1701 to 1C-1761.

    North Dakota: N.D. Cent. Code §§ 28-20.1-01 to 28-20.1-08.

    Ohio: O.R.C §§ 2329.021 to 2329.12.

    Oklahoma: 12 Okl. St. §§ 719 to 726.

    Oregon: O.R.S. §§ 24.105 to 24.175.

    Pennsylvania: 42 Pa.C.S. § 4306.

    Rhode Island: R.I. Gen. Laws §§ 9-32-1 to 9-32-8.

    South Carolina: S.C. Code Ann. §§ 15-35-900 to 15-35-960.

    South Dakota: S.D. Codified Laws §§ 15-16A-1 to 15-16A-10.

    Tennessee: Tenn Code. Ann. §§ 26-6-101 to 26-6-107.

    Texas: Tex. Civ. Prac. & Rem. Code §§ 35.001 to 35.008.

    Utah: Utah Code Ann. §§ 78-22a-1 to 78-22a-8.

    Virgin Islands: 5 V.I.C. 551 to 558.

    Washington: Rev. Code Wash. §§ 6.36.010 to 6.36.910.

    West Virginia: W. Va. Code §§ 55-14-1 to 55-14-8.

    Wisconsin: Wis. Stat. § 806.24.

    Wyoming: Wyo. Stat. 1-17-701 to 1-17-707.

    Law Review.

    As to recent legislation in domestication of foreign judgments, see 22 U. Rich. L. Rev. 517 (1988).

    Michie’s Jurisprudence.

    For related discussion, see 11A M.J. Judgments and Decrees, § 229.

    CASE NOTES

    Under the Uniform Enforcement of Foreign Judgments Act, the trial judge correctly ruled that “community interest” involved here is determined by Arizona law; the foreign judgment alone is before the Virginia court, not the underlying transaction on which it is based. Bullis v. Bullis, 22 Va. App. 24, 467 S.E.2d 830, 1996 Va. App. LEXIS 194 (1996).

    Jurisdiction. —

    Circuit court erred by awarding the wife a 50% share of the husband’s military retired pay pursuant to the Uniform Enforcement of Foreign Judgments Act because it did not have the authority to enter a military qualifying court order, as the Puerto Rican judgment did not include an actual award of the husband’s military retired pay but rather only provided that the wife was eligible for certain benefits and was asserting a pending claim for those benefits. Ramos-Fantauzzi v. Matos, 2017 Va. App. LEXIS 189 (Va. Ct. App. Aug. 1, 2017).

    § 8.01-465.2. Filing and status of foreign judgments.

    A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this Commonwealth may be filed in the office of the clerk of any circuit court of any city or county of this Commonwealth upon payment of the fee prescribed in subdivision A 17 of § 17.1-275 . The clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court of any city or county of this Commonwealth. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a circuit court of any city or county of this Commonwealth and may be enforced or satisfied in like manner.

    History. 1988, c. 539; 1990, c. 738.

    CASE NOTES

    Jurisdiction. —

    Circuit court erred by awarding the wife a 50% share of the husband’s military retired pay pursuant to the Uniform Enforcement of Foreign Judgments Act because it did not have the authority to enter a military qualifying court order, as the Puerto Rican judgment did not include an actual award of the husband’s military retired pay but rather only provided that the wife was eligible for certain benefits and was asserting a pending claim for those benefits. Ramos-Fantauzzi v. Matos, 2017 Va. App. LEXIS 189 (Va. Ct. App. Aug. 1, 2017).

    When recognition required. —

    Even if the courts of Virginia were not compelled to do so under the full faith and credit clause of the federal constitution, “upon principles of comity they may establish as their own decree a foreign decree . . ., with the same force and effect as if it had been entered in Virginia, provided, of course, the foreign decree violates no public policy of Virginia.” Moreover, such a result now seems required by the Uniform Interstate Family Support Act, Code § 20-88.32 , et seq. Sheppard v. Sheppard, 1996 Va. App. LEXIS 261 (Va. Ct. App. Apr. 9, 1996).

    CIRCUIT COURT OPINIONS

    Challenge to service of docketed foreign judgement. —

    Foreign judgments docketed under the Uniform Enforcement of Foreign Judgments Act, § 8.01-465.1 et seq., and not domesticated in a formal domestication proceeding, are not subject to the holding that once a judgment is docketed or domesticated as a final judgment in Virginia, an attack on invalid service in the foreign jurisdiction must be brought within twenty-one days. Empire Beauty Sch. v. Bell, 58 Va. Cir. 32, 2001 Va. Cir. LEXIS 384 (Richmond Aug. 28, 2001); Empire Beauty Sch. v. Bell, 58 Va. Cir. 32, 2001 Va. Cir. LEXIS 513 (Richmond Aug. 9, 2001).

    Service of process in foreign jurisdiction held invalid. —

    Judgment debtor was successful in vacating a filing of a foreign judgment, under § 8.01-465.2 , and to stay enforcement because she presented compelling evidence showing that she was not the person served with a writ of summons at a residence where her ex-husband lived with his new wife, who bore a striking resemblance to the debtor. Reese v. Golden Eagle Credit Corp., 72 Va. Cir. 212, 2006 Va. Cir. LEXIS 301 (Rockingham County Oct. 27, 2006).

    Foreign default judgment void where foreign court lacked personal jurisdiction. —

    Default judgment entered against a seller in an Oregon court was vacated and set aside under § 8.01-428 because: (1) under § 8.01-465.2 , a foreign judgment had the same effect as a Virginia judgment; (2) the court inferred that the default judgment was not fully and fairly litigated; (3) the Oregon court lacked personal jurisdiction over the seller; and (4) the default judgment was void. Abdulhadi v. Bavarian Auto Sales, LLC, 86 Va. Cir. 249, 2013 Va. Cir. LEXIS 11 (Goochland County Feb. 11, 2013).

    OPINIONS OF THE ATTORNEY GENERAL

    Where judgment does not detail a specific monetary award, it may be entered in the judgment docket or in the order book, or in any other record deemed suitable, in accord with local practice and the sound discretion of the clerk. See opinion of Attorney General to The Honorable John T. Frey, Clerk, Fairfax County Circuit Court, 10-011, (7/8/10).

    § 8.01-465.3. Notice of filing.

    At the time of the filing of the foreign judgment, the judgment creditor or his lawyer shall make and file with the clerk of court an affidavit setting forth the name and last known post office address of the judgment debtor, and the judgment creditor.

    Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post office address of the judgment creditor and the judgment creditor’s lawyer, if any, in the Commonwealth. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.

    History. 1988, c. 539.

    CIRCUIT COURT OPINIONS

    Challenge to service of docketed foreign judgment. —

    Foreign judgments docketed under the Uniform Enforcement of Foreign Judgments Act, § 8.01-465.1 et seq., and not domesticated in a formal domestication proceeding, are not subject to the holding that once a judgment is docketed or domesticated as a final judgment in Virginia, an attack on invalid service in the foreign jurisdiction must be brought within twenty-one days. Empire Beauty Sch. v. Bell, 58 Va. Cir. 32, 2001 Va. Cir. LEXIS 384 (Richmond Aug. 28, 2001).

    Because the attempted service on a judgment debtor’s son was not at the debtor’s usual place of abode in Florida, it was improper; therefore, since there was no proper service under Fla. Stat. § 48.031(1)(a), the docketing of the Florida judgment in Virginia was set aside. Gosp v. McAuliffe, 77 Va. Cir. 203, 2008 Va. Cir. LEXIS 151 (Fairfax County Oct. 16, 2008).

    § 8.01-465.4. Stay of enforcement.

    If the judgment debtor shows the circuit court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered.

    If the judgment debtor shows the circuit court any ground upon which enforcement of a judgment of any court of this Commonwealth would be stayed, including the ground that an appeal from the foreign judgment is pending or will be taken, or that the time for taking such an appeal has not expired, the court shall stay enforcement of the foreign judgment for an appropriate period until all available appeals are concluded or the time for taking all appeals has expired, upon requiring the same security for satisfaction of the judgment which is required in this Commonwealth, subject to the provisions of subsections J and K of § 8.01-676.1 .

    History. 1988, c. 539; 2000, c. 100.

    The 2000 amendments.

    The 2000 amendment by c. 100, effective March 10, 2000, and applicable to any action which is pending on or which is filed after that date, in the second paragraph inserted “including the ground that an appeal from the foreign judgment is pending or will be taken, or that the time for taking such an appeal has not expired,” following “Commonwealth would be stayed,” inserted “until all available appeals are concluded or the time for taking all appeals has expired,” and added “subject to the provisions of subsections J and K of § 8.01-676.1 .”

    § 8.01-465.5. Optional procedure.

    The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this chapter remains unimpaired.

    History. 1988, c. 539.

    Chapter 17.2. Uniform Foreign-Country Money Judgments Recognition Act.

    §§ 8.01-465.6 through 8.01-465.13. Repealed by Acts 2014, c. 462, cl. 2.

    Editor’s note.

    Former §§ 8.01-465.6 through 8.01-465.13, pertaining to the Uniform Foreign Country Money-Judgments Recognition Act, derived from Acts 1990, c. 276.

    § 8.01-465.13:1. Definitions.

    As used in this chapter:

    “Foreign country” means a government other than any of the following: the United States; a state, district, commonwealth, territory, or insular possession of the United States; or a government with regard to which the decision in the Commonwealth as to whether to recognize a judgment of that government’s courts is initially subject to determination under the Full Faith and Credit Clause of the United States Constitution.

    “Foreign-country judgment” means a judgment of a court of a foreign country.

    History. 2014, c. 462.

    § 8.01-465.13:2. Applicability.

    1. Except as otherwise provided in subsection B, this chapter applies to a foreign-country judgment to the extent that the judgment:
      1. Grants or denies recovery of a sum of money; and
      2. Under the law of the foreign country where rendered, is final, conclusive, and enforceable.
    2. This chapter does not apply to a foreign-country judgment, even if the judgment grants or denies recovery of a sum of money, to the extent that the judgment is:
      1. A judgment for taxes;
      2. A fine or other penalty; or
      3. A judgment for divorce, support, or maintenance, or other judgment rendered in connection with domestic relations.
    3. A party seeking recognition of a foreign-country judgment has the burden of establishing that this chapter applies to the foreign-country judgment.

    History. 2014, c. 462.

    § 8.01-465.13:3. Standards for recognition of foreign-country judgment.

    1. Except as otherwise provided in subsections B and C, a court of the Commonwealth shall recognize a foreign-country judgment to which this chapter applies.
    2. A court of the Commonwealth shall not recognize a foreign-country judgment if:
      1. The judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
      2. The foreign court did not have personal jurisdiction over the defendant; or
      3. The foreign court did not have jurisdiction over the subject matter.
    3. A court of the Commonwealth need not recognize a foreign-country judgment if:
      1. The defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend;
      2. The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;
      3. The judgment or the cause of action on which the judgment is based is repugnant to the public policy of the Commonwealth or of the United States;
      4. The judgment conflicts with another final and conclusive judgment;
      5. The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that foreign court;
      6. In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action;
      7. The judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment; or
      8. The specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.
    4. A party resisting recognition of a foreign-country judgment has the burden of establishing that a ground for nonrecognition stated in subsection B or C exists.

    History. 2014, c. 462.

    § 8.01-465.13:4. Personal jurisdiction.

    1. A foreign-country judgment may not be refused recognition for lack of personal jurisdiction if:
      1. The defendant was served with process personally in the foreign country;
      2. The defendant voluntarily appeared in the proceeding, other than for the purpose of protecting property seized or threatened with seizure in the proceeding or of contesting the jurisdiction of the court over the defendant;
      3. The defendant, before the commencement of the proceeding, had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved;
      4. The defendant was domiciled in the foreign country when the proceeding was instituted or was a corporation or other form of business organization that had its principal place of business in, or was organized under the laws of, the foreign country;
      5. The defendant had a business office in the foreign country and the proceeding in the foreign court involved a cause of action arising out of business done by the defendant through that office in the foreign country; or
      6. The defendant operated a motor vehicle or airplane in the foreign country and the proceeding involved a cause of action arising out of that operation.
    2. The list of bases for personal jurisdiction in subsection A is not exclusive. The courts of the Commonwealth may recognize bases of personal jurisdiction other than those listed in subsection A as sufficient to support a foreign-country judgment.

    History. 2014, c. 462.

    § 8.01-465.13:5. Procedure for recognition of foreign-country judgment.

    1. If recognition of a foreign-country judgment is sought as an original matter, the issue of recognition shall be raised by filing an action seeking recognition of the foreign-country judgment.
    2. If recognition of a foreign-country judgment is sought in a pending action, the issue of recognition may be raised by counterclaim, cross-claim, or affirmative defense.

    History. 2014, c. 462.

    § 8.01-465.13:6. Effect of recognition of foreign-country judgment.

    If the court in a proceeding under § 8.01-465.13:5 finds that the foreign-country judgment is entitled to recognition under this chapter then, to the extent that the foreign-country judgment grants or denies recovery of a sum of money, the foreign-country judgment is:

    1. Conclusive between the parties to the same extent as the judgment of a sister state entitled to full faith and credit in the Commonwealth would be conclusive; and
    2. Enforceable in the same manner and to the same extent as a judgment rendered in the Commonwealth.

    History. 2014, c. 462.

    § 8.01-465.13:7. Stay of proceedings pending appeal of foreign-country judgment.

    If a party establishes that an appeal from a foreign-country judgment is pending or will be taken, the court may stay any proceedings with regard to the foreign-country judgment until the appeal is concluded, the time for appeal expires, or the appellant has had sufficient time to prosecute the appeal and has failed to do so.

    History. 2014, c. 462.

    § 8.01-465.13:8. Statute of limitations.

    An action to recognize a foreign-country judgment must be commenced within the earlier of the time during which the foreign-country judgment is effective in the foreign country or 15 years from the date that the foreign-country judgment became effective in the foreign country.

    History. 2014, c. 462.

    § 8.01-465.13:9. Uniformity of interpretation.

    In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

    History. 2014, c. 462.

    § 8.01-465.13:10. Saving clause.

    This chapter does not prevent the recognition under principles of comity or otherwise of a foreign-country judgment not within the scope of this chapter.

    History. 2014, c. 462.

    § 8.01-465.13:11. Effective date.

    This chapter applies to all actions commenced on or after July 1, 2014, in which the issue of recognition of a foreign-country judgment is raised.

    History. 2014, c. 462.

    Chapter 17.3. Uniform Foreign-Money Claims Act.

    § 8.01-465.14. Definitions.

    As used in this chapter:

    “Action” means a judicial proceeding or arbitration in which a payment in money may be awarded or enforced with respect to a foreign-money claim.

    “Bank-offered spot rate” means the spot rate of exchange at which a bank will sell foreign money at a spot rate.

    “Conversion date” means the banking day next preceding the date on which money, in accordance with this chapter, is (i) paid to a claimant in an action or distribution proceeding; (ii) paid to the official designated by law to enforce a judgment or award on behalf of a claimant; or (iii) used to recoup, set off, or counterclaim in different moneys in an action or distribution proceeding.

    “Distribution proceeding” means a judicial or nonjudicial proceeding for the distribution of a fund in which one or more foreign-money claims are asserted and includes an accounting, an assignment for the benefit of creditors, a foreclosure, the liquidation or rehabilitation of a corporation or other entity, and the distribution of an estate, trust, or other fund.

    “Foreign money” means money other than money of the United States of America.

    “Foreign-money claim” means a claim upon an obligation to pay, or a claim for recovery of a loss, expressed in or measured by a foreign money.

    “Money” means a medium of exchange for the payment of obligations or a store of value authorized or adopted by a government or by intergovernmental agreement.

    “Money of the claim” means the money determined as proper pursuant to § 8.01-465.17 .

    “Person” means an individual, a corporation, government or governmental subdivision or agency, business trust, estate, trust, joint venture, partnership, association, two or more persons having a joint or common interest, or any other legal or commercial entity.

    “Rate of exchange” means the rate at which money of one country may be converted into money of another country in a free financial market convenient to or reasonably usable by a person obligated to pay or to state a rate of conversion. If separate rates of exchange apply to different kinds of transactions, the term means the rate applicable to the particular transaction giving rise to the foreign-money claim.

    “Spot rate” means the rate of exchange at which foreign money is sold by a bank or other dealer in foreign exchange for immediate or next day availability or for settlement by immediate payment in cash or equivalent, by charge to an account, or by an agreed delayed settlement not exceeding two days.

    “State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States.

    History. 1991, c. 24.

    Uniform law cross references.

    For other signatory state provisions, see:

    California: California Code Civ. Proc. §§ 676 to 676.16.

    Colorado: C.R.S. §§ 13-62.1-101 to 13-62.1-108.

    Connecticut: Conn. Gen. Stat. §§ 50a-50 to 50a-66.

    Delaware: 10 Del. C. §§ 5201 to 5215.

    District of Columbia: D.C. Code §§ 15-901 to 15-914.

    Hawaii: H.R.S. §§ 658B-1 to 658B-14.

    Idaho: Idaho Code §§ 10-1501 to 10-1517.

    Illinois: 735 I.L.C.S. 5/12-630 to 5/12-645.

    Minnesota: Minn. Stat. §§ 548.40 to 548.53.

    Montana: Mont. Code Anno. §§ 25-9-701 to 25-9-715.

    Nevada: Nev. Rev. Stat. Ann. §§ 17.410 to 17.660.

    New Jersey: N.J. Stat. §§ 2A-49A-1 to 2A-49A-15.

    New Mexico: N.M. Stat. Ann. §§ 39-4C-1 to 39-4c-16.

    North Carolina: N.C. Gen. Stat. §§ 1C-1820 to 1C-1835.

    North Dakota: N.D. Cent. Code §§ 32-41-01 to 32-41-13.

    Ohio: O.R.C. Ann. 2337.01 to 2337.15.

    Oklahoma: 12 Okl. St. §§ 729.1 to 729.16.

    Oregon: O.R.S. §§ 24.260 to 24.335.

    Utah: Utah Code Ann. §§ 78-22b-102 to 78-22b-116.

    Virgin Islands: 11 V.I.C. §§ 1530 to 1545.

    Washington: Rev. Code Wash. §§ 6.44.010 to 6.44.904.

    Wisconsin: Wis. Stat. §§ 806.30 to 806.44.

    Law Review.

    For essay, “Medellin, Delegation and Conflicts (of Law),” see 17 Geo. Mason L. Rev. 191 (2009).

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Bankruptcy, § 2.

    § 8.01-465.15. Scope.

    This chapter applies only to a foreign-money claim in an action or distribution proceeding and applies to foreign-money issues even if other law under the conflict-of-laws rules of the Commonwealth applies to other issues in the action or distribution proceeding.

    History. 1991, c. 24.

    § 8.01-465.16. Variation by agreement.

    The effect of this chapter may be varied by agreement of the parties made before or after commencement of an action or distribution proceeding or the entry of judgment.

    Parties to a transaction may agree upon the money to be used in a transaction giving rise to a foreign-money claim and may agree to use different moneys for different aspects of the transaction. Stating the price in a foreign money for one aspect of a transaction does not alone require the use of that money for other aspects of the transaction.

    History. 1991, c. 24.

    § 8.01-465.17. Determining money of the claim.

    The money in which the parties to a transaction have agreed that payment is to be made is the proper money of the claim for payment. If the parties to a transaction have not otherwise agreed, the proper money of the claim is the money (i) regularly used between the parties as a matter of usage or course of dealing; (ii) used at the time of a transaction in international trade, by trade usage or common practice, for valuing or settling transactions in the particular commodity or service involved; or (iii) in which the loss was ultimately felt or will be incurred by the party claimant.

    History. 1991, c. 24.

    § 8.01-465.18. Determining amount of the money of certain contract claims.

    1. If an amount contracted to be paid in a foreign money is measured by a specified amount of a different money, the amount to be paid is determined on the conversion date.
    2. If an amount contracted to be paid in a foreign money is to be measured by a different money at the rate of exchange prevailing on a date before default, that rate of exchange applies only to payments made within a reasonable time after default, not exceeding thirty days.  Thereafter, conversion is made at the bank-offered spot rate on the conversion date.
    3. A monetary claim is neither usurious nor unconscionable because the agreement on which it is based provides that the amount of the debtor’s obligation to be paid in the debtor’s money, when received by the creditor, must equal a special amount of the foreign money of the country of the creditor. If, because of unexcused delay in payment of a judgment or award, the amount received by the creditor does not equal the amount of the foreign money specified in the agreement, the court or arbitrator shall amend the judgment or award accordingly.

    History. 1991, c. 24.

    § 8.01-465.19. Asserting and defending foreign-money claim.

    A person may assert a claim in a specified foreign money. If a foreign-money claim is not asserted, the claimant makes the claim in United States dollars.

    An opposing party may allege and shall prove that all or part of a claim is in a different money than that asserted by the claimant. A person may assert a defense, setoff, recoupment, or counterclaim in any money without regard to the money of other claims.

    The determination of the proper money of the claim is a question of law.

    History. 1991, c. 24.

    § 8.01-465.20. Judgments and awards on foreign-money claims; times of money conversion; form of judgment.

    1. A judgment or award on a foreign-money claim must be stated in an amount of the money of the claim.  However, assessed costs must be entered in United States dollars.  A judgment in substantially the following form complies with this subsection:  [IT IS ADJUDGED AND ORDERED, that Defendant (insert name) pay to Plaintiff (insert name) the sum of (insert amount in the foreign money) plus interest on that sum at the rate of (insert rate — see § 8.01-465.22 ) percent a year or, at the option of the judgment debtor, the number of United States dollars which will purchase the (insert name of foreign money) with interest due, at a bank-offered spot rate at or near the close of business on the banking day next before the day of payment, together with assessed costs of (insert amount) United States dollars.]
    2. A judgment or award on a foreign-money claim is payable in that foreign money or, at the option of the debtor, in the amount of United States dollars which will purchase that foreign money on the conversion date at a bank-offered spot rate.Each payment in United States dollars must be accepted and credited on a judgment or award on a foreign-money claim in the amount of the foreign money that could be purchased by the dollars at a bank-offered spot rate of exchange at or near the close of business on the conversion date for that payment.
    3. A judgment or award made in an action or distribution proceeding on both a defense, setoff, recoupment, or counterclaim and the adverse party’s claim, must be netted by converting the money of the smaller into the money of the larger, and by subtracting the smaller from the larger, and shall specify the rates of exchange used.
    4. If a contract claim is of the type covered by § 8.01-465.18 A or B, the judgment or award must be entered for the amount of money stated to measure the obligation to be paid in the money specified for payment or, at the option of the debtor, the number of United States dollars which will purchase the computed amount of the money of payment on the conversion date at a bank-offered spot rate.
    5. A judgment shall be docketed and indexed in foreign money in the same manner, and has the same effect as a lien, as other judgments.  It may be discharged by payment.

    History. 1991, c. 24.

    § 8.01-465.21. Conversions of foreign money in distribution proceeding.

    The rate of exchange prevailing at or near the close of business on the day the distribution proceeding is initiated governs all exchanges of foreign money in a distribution proceeding. A foreign-money claimant in a distribution proceeding shall assert its claim in the named foreign money and show the amount of United States dollars resulting from a conversion as of the date the proceeding was initiated.

    History. 1991, c. 24.

    § 8.01-465.22. Prejudgment and judgment interest.

    With respect to a foreign-money claim, recovery of prejudgment or preaward interest and the rate of interest to be applied in the action or distribution proceeding are matters of the substantive law governing the right to recovery under the conflict-of-laws rules of the Commonwealth.

    However, the court or arbitrator shall increase or decrease the amount of prejudgment or preaward interest otherwise payable in a judgment or award in foreign money to the extent required by the law of the Commonwealth.

    A judgment or award on a foreign-money claim bears interest at the rate applicable to judgments of the Commonwealth.

    History. 1991, c. 24.

    § 8.01-465.23. Enforcement of foreign judgments.

    If an action is brought to enforce a judgment of another jurisdiction expressed in a foreign money and the judgment is enforceable in the Commonwealth, the enforcing judgment must be entered as provided in § 8.01-465.20 , whether or not the foreign judgment confers an option to pay in an equivalent amount of United States dollars.

    A foreign judgment may be filed in accordance with Chapter 17.1 (§ 8.01-465.1 et seq.) or Chapter 17.2 (§ 8.01-465.13:1 et seq.).

    A satisfaction or partial payment made upon the foreign judgment, on proof thereof, must be credited against the amount of foreign money specified in the judgment, notwithstanding the entry of judgment in the Commonwealth.

    A judgment entered on a foreign-money claim only in United States dollars in another state shall be enforced in United States dollars only.

    History. 1991, c. 24; 2014, c. 462.

    The 2014 amendments.

    The 2014 amendment by c. 462 in the second paragraph substituted “or” for “and” and “8.01-465.13:1” for “8.01-465.6,” and deleted “of this title” at the end.

    § 8.01-465.24. Determining United States dollar value of foreign-money claims for limited purposes.

    For the limited purpose of facilitating the enforcement of provisional remedies in an action, (i) the value in United States dollars of assets to be seized or restrained pursuant to a writ of attachment, garnishment, execution, or other legal process, (ii) the amount of United States dollars at issue for assessing costs, or (iii) the amount of United States dollars involved for a surety bond or other court-required undertaking shall be ascertained by a party seeking the process, costs, bond or other undertaking as follows:

    1. The amount of the foreign money claimed shall be computed from a bank-offered spot rate prevailing at or near the close of business on the banking day next preceding the filing of (i) a request or application for the issuance of process or for the determination of costs, or (ii) an application for a bond or other court-required undertaking.
    2. An affidavit or certificate executed in good faith by the party’s counsel or a bank officer shall be filed with each request or application, stating the market quotation used and how it was obtained, and setting forth the calculation. Affected court officials incur no liability, after a filing of the affidavit or certificate, for acting as if the judgment were in the amount of United States dollars stated in the affidavit or certificate.

      Computations under this section are for the limited purposes of the section and do not affect computation of the United States dollar equivalent of the money of the judgment for the purpose of payment.

    History. 1991, c. 24.

    § 8.01-465.25. Effect of substitution of currency by issuing authority.

    If, after an obligation is expressed or a loss is incurred in a foreign money, the country issuing or adopting that money substitutes a new money in place of that money, the obligation or the loss is treated as if expressed or incurred in the new money at the rate of conversion the issuing country establishes for the payment of like obligations or losses denominated in the former money. If such substitution occurs after a judgment or award is entered on a foreign-money claim, the court or arbitrator shall amend the judgment or award by a like conversion of the former money.

    History. 1991, c. 24.

    Chapter 18. Executions and Other Means of Recovery.

    Article 1. Issue and Form; Motion to Quash.

    § 8.01-466. Clerk to issue fieri facias on judgment for money.

    On a judgment for money, it shall be the duty of the clerk of the court in which such judgment was rendered, upon request of the judgment creditor, his assignee or his attorney, to issue a writ of fieri facias at the expiration of twenty-one days from the date of the entry of the judgment and place the same in the hands of a proper person to be executed and take his receipt therefor. The writ shall be issued together with the form for requesting a hearing on a claim of exemption from levy as provided in § 8.01-546.1 . For good cause the court may order an execution to issue on judgments and decrees at an earlier period.

    History. Code 1950, § 8-399; 1954, c. 620; 1976, c. 354; 1977, c. 617; 1986, c. 341; 1996, cc. 501, 608.

    REVISERS’ NOTE

    Section 8.01-466 is former § 8-399. The principal change is the substitution of the language “. . . upon request of the judgment creditor, his assignee or his attorney” for the former language “. . . only if so requested by a party in interest . . . .” It was felt that the language of the former statute was too broad, and that the request to issue the writ should be restricted as provided in the present statute.

    Conforming changes to § 16.1-98 governing general district courts have been made.

    Law Review.

    For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

    For article on the effect of delay on a surety’s obligations in Virginia, see 18 U. Rich. L. Rev. 781 (1984).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, §§ 2, 3, 8.

    CASE NOTES

    Execution is not to be issued within 21 days absent court order. —

    Bank’s alleged lien was defective and was not secured on the vehicle because the writ of fieri facias was issued only eight days after the judgment was rendered and one day after docketing in Virginia and because there was no order of the court permitting the issuance of the writ of fieri facias before the expiration of 21 days; an execution is not to be issued within the 21 days unless “good cause” is shown to the court. Wick v. IRS (In re Bhatti), 126 Bankr. 229, 1991 Bankr. LEXIS 549 (Bankr. W.D. Va. 1991).

    Execution issued before expiration of 21 days was void since this section states that “it shall be the duty of the clerk . . . to issue a writ of fieri facias at the expiration of twenty-one days from the date of entry of the judgment”; if an execution is voidable, it is valid until avoided, and its invalidity cannot be set up in a suit to enforce the judgment; but if it is void, it is a nullity, and that fact, may be shown by anybody, anywhere and at any time. Wick v. IRS (In re Bhatti), 126 Bankr. 229, 1991 Bankr. LEXIS 549 (Bankr. W.D. Va. 1991).

    Procedures not followed. —

    Bankruptcy court had both “related to” and ancillary jurisdiction over debtor’s motion to approve a settlement where distributions under the Chapter 11 came solely from the litigation. However, the court did not approve the settlement because the debtor’s attempt to collect the judgment failed to follow the procedures in § 8.01-466 , and its request for financial and other written documents failed to follow the procedures in § 8.01-506.1 .Wellington Apt., LLC v. Clotworthy, 353 Bankr. 465, 2006 Bankr. LEXIS 2906 (Bankr. E.D. Va. 2006).

    Relationship to bankruptcy laws. —

    Under Virginia law, a creditor’s lien arose on the date that a writ of fieri facias and garnishment summons were served on a bank and debtor’s accounts were frozen, but on the date that debtor filed his bankruptcy petition, the funds were still on deposit and had not been delivered to the state court. Thus, the garnished funds did not vest in the creditor, as the automatic stay was in place prior to the time when the state court could have ordered payment of the funds to the creditor, and debtor was entitled to avoid the creditor’s judgment lien as impairing his exemption in those funds. In re Underwood, No. 18-70168, 2018 Bankr. LEXIS 1573 (Bankr. W.D. Va. May 30, 2018).

    CIRCUIT COURT OPINIONS

    Partial final judgment. —

    In a multi-party case, absent an exception, any order that adjudicates fewer than all the claims against all the parties must meet the partial final judgment requirements of the rule before an execution and garnishment summons will issue properly. PNC Bank, N.A. v. Yen, 92 Va. Cir. 331, 2016 Va. Cir. LEXIS 28 (Fairfax County Feb. 26, 2016).

    OPINIONS OF THE ATTORNEY GENERAL

    Certified copy of a final judgment order. —

    A certified copy of a final judgment order issued by the bankruptcy court constitutes an authenticated “abstract of judgment” for purposes of § 8.01-446 , provided the copy otherwise provides the information required by § 8.01-449 , and the clerk of court is therefore required to docket it. See opinion of Attorney General to The Honorable Terry H. Whittle, Clerk of Court, Winchester Circuit Court, 10-083, 2010 Va. AG LEXIS 57 (9/17/10).

    Fees collected by sheriff when serving writs. —

    Writs of fieri facias, debtor interrogatories and garnishments are distinct, but related proceedings, so that, although sheriff or other executing officer may be required to levy on the tangible personal property of a judgment debtor when executing a writ of fieri facias, no such requirement is imposed when serving a Summons for Interrogatories or Garnishment Summons. See opinion of Attorney General to The Honorable L.J. Ayers, III, Sheriff for Amherst County, 10-075, (02/04/11).

    The fees sheriffs may charge for service of Summons to Answer Interrogatories, Summons in Garnishment, and Writs of Fieri Facias are governed by the express terms of § 17.1-272 . See opinion of Attorney General to The Honorable L.J. Ayers, III, Sheriff for Amherst County, 10-075, (02/04/11).

    § 8.01-467. What writs may not issue.

    No writ of levari facias, writ of extendi facias, writ of elegit, writ of capias ad satisfaciendum, or writ of distringas shall be issued hereafter.

    History. Code 1950, § 8-400; 1977, c. 617; 1984, c. 94.

    Law Review.

    For article, “Body Attachment and Body Execution,” see 17 Wm. & Mary L. Rev. 543 (1976).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arrest, § 1.

    § 8.01-468. Executions against corporations.

    Such executions as may issue against a natural person may issue against a corporation.

    History. Code 1950, § 8-401; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-468 is the first sentence of former § 8-401 without change.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 12.

    § 8.01-469. Executions on joint judgments.

    When a judgment is against several persons jointly, executions thereon may be joint against all of them.

    History. Code 1950, § 8-401; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-469 is the last sentence of former § 8-401. The word “shall” has been replaced by “may” in the belief that the execution creditor should be permitted to request execution against less than all the joint judgment debtors.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 12.

    CASE NOTES

    One execution even though judgments not entered at same time. —

    Where in a proceeding at law against several parties, judgments against one or more are entered at one time, and against others at another time, one execution may issue against all. Walker v. Commonwealth, 59 Va. (18 Gratt.) 13, 1867 Va. LEXIS 33 (1867) (decided under prior law).

    § 8.01-470. Writs on judgments for specific property.

    On a judgment for the recovery of specific property, a writ of possession for personal property or a writ of eviction for real property may issue for the specific property pursuant to an order of possession entered by a court of competent jurisdiction, which shall conform to the judgment as to the description of the property and the estate, title, and interest recovered, and there may also be issued a writ of fieri facias for the damages or profits and costs. In cases of unlawful entry and detainer and of ejectment, the officer to whom a writ of eviction has been delivered to be executed shall, at least 72 hours before execution, serve notice of intent to execute, including the date and time of execution, as well as the rights afforded to tenants in §§ 55.1-1255 and 55.1-1416 , together with a copy of the writ attached, on the defendant in person or, if the party to be served is not found at the specific property for which a writ of eviction has been issued, then service shall be effected by posting a copy of such process at the front door or at such other door as appears to be the main entrance of such property. The execution of the writ of eviction by the sheriff should occur within 15 calendar days from the date the writ of eviction is received by the sheriff, or as soon as practicable thereafter, but in no event later than 30 days from the date the writ of eviction is issued. An order of possession shall remain valid for 180 days from the date granted by the court. If a plaintiff cancels a writ of eviction, such plaintiff may request other writs of eviction during such 180-day period. In cases of unlawful entry and detainer and of ejectment, whenever the officer to whom a writ of eviction has been delivered to be executed finds the premises locked, he may, after declaring at the door the cause of his coming and demanding to have the door opened, employ reasonable and necessary force to break and enter the door and put the plaintiff in possession. The execution of the writ of eviction shall be effective against the tenants named in the writ of eviction and their authorized occupants, guests or invitees, and any trespassers in the premises. And an officer having a writ of possession for specific personal property, if he finds locked or fastened the building or place wherein he has reasonable cause to believe the property specified in the writ is located, may in the daytime, after notice to the defendant, his agent or bailee, break and enter such building or place for the purpose of executing such writ.

    History. Code 1950, § 8-402; 1977, c. 617; 1991, c. 503; 2000, c. 640; 2001, c. 222; 2003, c. 259; 2007, c. 128; 2019, cc. 180, 700.

    Cross references.

    As to direction and execution of process, see § 8.01-292 .

    As to fieri facias, see §§ 8.01-474 , 8.01-478 , 8.01-479 .

    As to other “breaking and entry” provisions, see § 8.01-491 .

    Editor’s note.

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “ §§ 55.1-1255 and 55.1-1416 ” for “ §§ 55-237.1 and 55-248.38:2.”

    The 2000 amendments.

    The 2000 amendment by c. 640 added the present third sentence.

    The 2001 amendments.

    The 2001 amendment by c. 222 inserted “as well as the rights afforded to tenants in §§ 55-237.1 and 55-248.38:2” in the second sentence.

    The 2003 amendments.

    The 2003 amendment by c. 259 substituted “72” for “seventy-two,” “15” for “fifteen,” and “30” for “thirty” in the second sentence, and inserted the next-to-last sentence.

    The 2007 amendments.

    The 2007 amendment by c. 128, in the second sentence, substituted “together with a copy of the writ attached on the defendant in person or, if the party to be served is not found at the specific property for which a writ of possession has been issued, then service shall be effected by posting a copy of such process at the front door or at such other door as appears to be the main entrance of such property” for “on the defendant in accordance with § 8.01-296 , with a copy of the writ attached.”

    The 2019 amendments.

    The 2019 amendments by cc. 180 and 700 are identical, and substituted “writ of eviction” for “writ of possession” throughout; substituted “a writ of possession for personal property or a writ of eviction for real property may issue for the specific property pursuant to an order of possession entered by a court of competent jurisdiction” for “real or personal, a writ of possession may issue for the specific property” in the first sentence, added the fourth and fifth sentences.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 3.

    CASE NOTES

    It is an established rule that writs of possession must follow the judgment for the recovery of specific property. King v. Davis, 137 F. 222, 1905 U.S. App. LEXIS 5219 (C.C.D. Va. 1905), aff'd, Blankenship v. King, 157 F. 676, 1906 U.S. App. LEXIS 4265 (4th Cir. 1906) (decided under prior law).

    Writs of possession issued only in favor of prevailing plaintiff. —

    Since a judgment in favor of a plaintiff in an action of ejectment is not self-executing, a prevailing plaintiff needs a writ of possession to enforce his right to possession. But a prevailing defendant, being already in possession, needs no writ to enforce his right to possession. So former version of this section provided for the issuance of a writ of possession only in favor of a plaintiff who has prevailed. Page v. Luhring, 211 Va. 503 , 178 S.E.2d 527, 1971 Va. LEXIS 202 (1971) (decided under prior law).

    Where writ for possession unnecessary. —

    Defendant had no right to be at the property he had leased, and his act of entering the property supported his burglary conviction, where the landlord had been granted an unlawful detainer judgment against defendant, and, pursuant to that judgment, the landlord had entered the house, taken possession of the house, and changed its locks before defendant re-entered the property; issuance of a writ for possession was unnecessary to terminate defendant’s right to be at the property. Lassiter v. Commonwealth, 46 Va. App. 604, 620 S.E.2d 563, 2005 Va. App. LEXIS 409 (2005).

    OPINIONS OF THE ATTORNEY GENERAL

    Procedures related to firearms during eviction process. Neither the landlord nor the tenant has a reasonable expectation of privacy in a firearm located on the premises during the 24-hour period after eviction, and therefore Sheriff's office does have the authority to run the firearm's serial number through VCIN during the removal and storage process. See opinion of Attorney General to the Honorable Donald T. Sloan, Sheriff of the City of Lynchburg, 21-051, (10/15/21).

    § 8.01-471. Time period for issuing writs of eviction in unlawful entry and detainer; when returnable.

    Writs of eviction, in case of unlawful entry and detainer, shall be issued within 180 days from the date of judgment for possession and shall be made returnable within 30 days from the date of issuing the writ. Notwithstanding any other provision of law, a writ of eviction not executed within 30 days from the date of issuance shall be vacated as a matter of law without further order of the court that entered the order of possession, and no further action shall be taken by the clerk. No writ shall issue, however, in cases under the Virginia Residential Landlord and Tenant Act (§ 55.1-1200 et seq.) if, following the entry of judgment for possession, the landlord has entered into a new written rental agreement with the tenant, as described in § 55.1-1250 . A writ of eviction may be requested by the plaintiff or the plaintiff’s attorney or agent.

    History. Code 1950, § 8-403; 1977, c. 617; 1999, c. 683; 2003, c. 427; 2006, c. 667; 2013, c. 63; 2019, cc. 180, 700.

    REVISERS’ NOTE

    Section 8.01-471 is former § 8-403. The statute has made 30 days uniform for returns of writs of possession irrespective of the location of the property.

    Editor’s note.

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted “§§ 55.1-1200 ” for “§ 55-248.2” and “55.1-1250” for “55-248.34:1.”

    The 1999 amendment inserted “shall be issued within one year from the date of judgments for possession and” in the first sentence, and added the second sentence.

    The 2003 amendments.

    The 2003 amendment by c. 427 substituted “30” for “thirty” in the first sentence, and substituted “§ 55-248.34:1” for “§ 55-248.34” in the last sentence.

    The 2006 amendments.

    The 2006 amendment by c. 667 inserted “in cases under the Virginia Residential Landlord and Tenant Act (§ 55-248.2 et seq.)” in the second sentence.

    The 2013 amendments.

    The 2013 amendment by c. 63 added the third sentence.

    The 2019 amendments.

    The 2019 amendments by cc. 180 and 700 are identical, and rewrote the section, which read: “Writs of possession, in case of unlawful entry and detainer, shall be issued within one year from the date of judgment for possession and shall be made returnable within 30 days from the date of issuing the writ. No writ shall issue, however, in cases under the Virginia Residential Landlord and Tenant Act (§ 55-248.2 et seq.) if, following the entry of judgment, the landlord has accepted rent payments without reservation, as described in § 55-248.34:1. A writ of possession may be requested by the plaintiff or the plaintiff’s attorney or agent.”

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    § 8.01-472. Writs on judgments for personal property.

    When the judgment is for personal property, the plaintiff may, at his option, have a fieri facias for the alternative value, instead of a writ of possession, and the damages and costs.

    History. Code 1950, § 8-404; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Detinue and Replevin, § 15.

    CASE NOTES

    Section establishes a general rule. McClure Grocery Co. v. Watson, 148 Va. 601 , 139 S.E. 288 , 1927 Va. LEXIS 259 (1927) (decided under prior law).

    § 8.01-473. Judgment for benefit of other person than plaintiff; remedies of such person.

    When an execution issues on a judgment, for the benefit, in whole or in part, of any person other than the plaintiff, if the fact appears by the record, the clerk shall, in the execution, or by an endorsement thereon, state the extent of the interest therein of such person; and such person, either in his own name or that of the plaintiff, may, as a party injured, prosecute a suit or motion against the officer.

    History. Code 1950, § 8-405; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 10.

    CASE NOTES

    Motion by debtor against sheriff for failure to return execution. —

    An execution debtor who has paid the amount of the execution cannot maintain a motion in the name of the execution creditor against the sheriff for failing to return the execution. Fletcher v. Chapman, 29 Va. (2 Leigh) 560, 1831 Va. LEXIS 14 (1831) (decided under prior law).

    § 8.01-474. What writ of fieri facias to command.

    By a writ of fieri facias, the officer shall be commanded to make the money therein mentioned out of the goods and chattels of the person against whom the judgment is.

    History. Code 1950, § 8-406; 1977, c. 617.

    Cross references.

    As to what writ levied on, see § 8.01-478 .

    As to time for enforcement of lien, see § 8.01-479 .

    CASE NOTES

    Client funds. —

    Lien of a writ of fieri facias under § 8.01-501 required the law firms holding the client funds of the judgment debtor to cease disbursing funds from their trust accounts to satisfy legal fees and costs that the judgment debtor owed to them for services rendered and to pay those funds to the judgment creditor effective on the date that the writ of fieri facias was delivered to the sheriff for issuance; the writ was a lien on the equitable interest that the judgment debtor had in the funds paid as retainers to the law firms and the service of notice requirements of § 8.01-502 did not apply to the law firms because they had not used those funds to pay the judgment debtor but, instead, had used the funds to pay themselves. Marcus, Santoro & Kozak, P.C. v. Wu, 274 Va. 743 , 652 S.E.2d 777, 2007 Va. LEXIS 135 (2007).

    OPINIONS OF THE ATTORNEY GENERAL

    Levy by sheriff against personal property when serving writs of fieri facias. —

    Writs of fieri facias, debtor interrogatories and garnishments are distinct, but related proceedings, so that, although sheriff or other executing officer may be required to levy on the tangible personal property of a judgment debtor when executing a writ of fieri facias, no such requirement is imposed when serving a Summons for Interrogatories or Garnishment Summons. See opinion of Attorney General to The Honorable L.J. Ayers, III, Sheriff for Amherst County, 10-075, (02/04/11).

    § 8.01-475. Subsequent executions.

    Subject to the limitations prescribed by Chapter 17 (§ 8.01-426 et seq.) of this title, a party obtaining an execution may sue out other executions at his own costs, though the return day of a former execution has not arrived; and may sue out other executions at the defendant’s costs, when on a former execution there is a return by which it appears that the writ has not been executed, or that it or any part of the amount thereof is not levied, or that property levied on has been discharged by legal process which does not prevent a new execution on the judgment. In no case shall there be more than one satisfaction for the same money or thing.

    And the fact that a judgment creditor may have availed himself of the benefit of any other remedies under this chapter, shall not prevent him from issuing, from time to time, without impairing his lien under it, other executions upon his judgment until the same is satisfied.

    History. Code 1950, § 8-407; 1977, c. 617.

    Cross references.

    As to limitations on enforcement of judgments, see § 8.01-251 .

    Law Review.

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 16.

    CASE NOTES

    Executions issued until judgment satisfied. —

    If, by a misunderstanding of the directions of the plaintiff by the sheriff and the defendants, the property is released by the sheriff to them, the plaintiff may have a new execution. Walker v. Commonwealth, 59 Va. (18 Gratt.) 13, 1867 Va. LEXIS 33 (1867) (decided under prior law).

    Where an execution was issued and sale of the property was made under it, but none of the purchase price was paid, the judgment was not satisfied and another execution could be issued. Richardson v. Wymer, 104 Va. 236 , 51 S.E. 219 , 1905 Va. LEXIS 92 (1905) (decided under prior law).

    But debtor will not be unnecessarily oppressed by numerous executions. —

    The right of issuing numerous executions will not be permitted to be used for the purpose of unnecessarily oppressing or injuring the debtor. Hence, where it appears by the record that the first execution was returned executed by an ample levy, and there being no return thereunder by which it appears that it was not fully and completely executed, there is no ground for the issuance of a new execution. Sutton v. Marye, 81 Va. 329 , 1886 Va. LEXIS 100 (1886) (decided under prior law).

    Until the plaintiff “has gotten to the end of his suit”; in other words, until he has gotten satisfaction of his demand, or what is equivalent thereto, he may continue to prosecute his remedy to judgment and sue out execution after execution thereon, taking care not to oppress or injure the defendant or his sureties, if there be any. Puryear v. Taylor, 53 Va. (12 Gratt.) 401, 1855 Va. LEXIS 29 (1855); Walker v. Commonwealth, 59 Va. (18 Gratt.) 13, 1867 Va. LEXIS 33 (1867) (decided under prior law).

    § 8.01-476. New execution after loss of property sold under indemnifying bond.

    When property sold under an execution, or its value, is recovered from an obligor on an indemnifying bond given before such sale, or from a purchaser having a right of action on such bond, the person having such execution, or his personal representative, may, by motion, after reasonable notice to the person, or the personal representative of the person, against whom the execution was, obtain a new execution against him, without credit for the amount for which the property was sold under the former execution. Such motion shall be made within the period of time prescribed by § 8.01-255.2 .

    History. Code 1950, § 8-408; 1977, c. 617.

    § 8.01-477. When executions may be quashed; how proceedings thereon stayed.

    A motion to quash an execution may, after reasonable notice to the adverse party, be heard and decided by the court which issued the execution. Such court, on the application of the plaintiff in the motion, may make an order staying the proceedings on the execution until the motion be heard and determined, the order not to be effectual until bond be given in such penalty and with such condition, and either with or without surety, as the court may prescribe. The clerk from whose office the execution issued, shall take the bond and make as many copies of the order as may be necessary and endorse thereon that the bond required has been given; and a copy shall be served on the plaintiff in the execution and on the officer in whose hands the execution is placed.

    History. Code 1950, § 8-410; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, §§ 60, 61, 62.

    CASE NOTES

    Notice must be reasonable. —

    It is necessary that notice be given to the opposite party when a motion to quash is to be made. But all that is required is that it must be a “reasonable notice.” Ballard v. Whitlock, 59 Va. (18 Gratt.) 235, 1867 Va. LEXIS 35 (1867); Dillard v. Thornton, 70 Va. (29 Gratt.) 392, 1877 Va. LEXIS 30 (1877); Snavely v. Harkrader, 71 Va. (30 Gratt.) 487, 1878 Va. LEXIS 76 (1878) (decided under prior law).

    But it is not required to be in writing. —

    The notice of a motion to quash an execution is not required to be in writing. Dillard v. Thornton, 70 Va. (29 Gratt.) 392, 1877 Va. LEXIS 30 (1877) (decided under prior law).

    A void execution can be attacked collaterally or directly by anybody, anywhere and at any time. Johnston v. Pearson, 121 Va. 453 , 93 S.E. 640 , 1917 Va. LEXIS 49 (1917) (decided under prior law).

    There is no limitation on the time within which a motion must be made to quash a fieri facias. Lowenbach v. Kelly, 111 Va. 439 , 69 S.E. 352 , 1910 Va. LEXIS 66 (1910) (decided under prior law).

    Irregular execution is ground for motion. —

    It is well settled that a motion to quash is the proper remedy where an execution is irregular and has been issued without authority of law. Snavely v. Harkrader, 71 Va. (30 Gratt.) 487, 1878 Va. LEXIS 76 (1878); Sutton v. Marye, 81 Va. 329 , 1886 Va. LEXIS 100 (1886) (see Broyhill v. Dawson, 168 Va. 321 , 191 S.E. 779 (1937)) (decided under prior law).

    A motion to quash under this section may not be used by strangers to underlying judgment as substitute for statutory method prescribed in § 8.01-365 or in lieu of a common-law action of trespass. The application of this section is limited to attacks on the regularity and validity of a writ of fieri facias. Barbuto v. Southern Bank, 231 Va. 63 , 340 S.E.2d 813, 1986 Va. LEXIS 164 (1986).

    Second execution after sufficient execution also grounds. —

    A second execution will be quashed, if issued after a former execution has been satisfied or levied on property sufficient to satisfy it. Sutton v. Marye, 81 Va. 329 , 1886 Va. LEXIS 100 (1886) (decided under prior law).

    Effect of quashing. —

    After a voidable execution has been quashed it is as void as if it had been a nullity ab initio. Riely v. Solenberger, 18 Va. L. Reg. 352 (1912) (decided under prior law).

    A motion to quash was improperly used where third parties who claimed ownership of certain property levied upon, improperly sought to prosecute a common law action of trespass and to simultaneously claim ownership of the property seized in the levy. This was an improper use of the statutory motion to quash. Their remedy was under § 8.01-365 , a statute specifically providing strangers to the underlying judgment a swift, direct, and summary method to determine conflicting ownership of property seized in a levy. Barbuto v. Southern Bank, 231 Va. 63 , 340 S.E.2d 813, 1986 Va. LEXIS 164 (1986).

    CIRCUIT COURT OPINIONS

    Motion to quash denied. —

    Judgment debtor’s motion to quash a garnishment summons pursuant to § 8.01-477 was denied because the time expired for it to file a responsive pleading, and papers signed by the debtor’s chief financial officer and filed with the clerk of court had no legal effect; the papers were not a responsive pleading because the debtor, a business organization, could not file a pleading pro se since it had to be represented by a lawyer authorized to practice law in Virginia pursuant to Va. Sup. Ct. R. 1A:4. Modular Wood Sys., Inc. v. World Trade Group, L.L.P., 77 Va. Cir. 403, 2009 Va. Cir. LEXIS 103 (Henrico County Feb. 23, 2009).

    Because the stay as to defendant one was interlocutory, the execution could only issue if the order rendered a partial final judgment against defendant two, but the order was not expressly labeled a partial final judgment and did not contain express findings of severability; thus, the stay as to defendant one and the personal judgment against defendant two were both interlocutory, and the interlocutory judgment entered against defendant two could not support the execution and garnishment, the motions to quash were granted, and the court retained its jurisdiction over the entire case. PNC Bank, N.A. v. Yen, 92 Va. Cir. 331, 2016 Va. Cir. LEXIS 28 (Fairfax County Feb. 26, 2016).

    § 8.01-477.1. Claims of exemption from execution.

    The procedures specified in § 8.01-546.2 shall govern further proceedings regarding claims of exemption from levy.

    History. 1986, c. 341.

    Article 2. Lien in General.

    § 8.01-478. On what property writ of fieri facias levied; when lien commences.

    The writ of fieri facias may be levied as well on the current money and bank notes, as on the goods and chattels of the judgment debtor, except such as are exempt from levy under Title 34, and shall bind what is capable of being levied on only from the time it is actually levied by the officer to whom it has been delivered to be executed.

    History. Code 1950, § 8-411; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-478 is former § 8-411. The time at which the execution lien becomes effective is changed from that of its delivery to the officer to the time of actual levy. This change in the common law will prevent the injustice which results when a bona fide purchaser takes tangible property from the judgment debtor and later discovers an officer with a writ in his pocket which he had failed to execute.

    Cross references.

    As to judgment lien against real estate, see § 8.01-458 .

    As to failure of officer to endorse the date and time of levy on the writ, see § 8.01-487 .

    As to satisfaction of multiple writs of fieri facias, see § 8.01-488 .

    As to suit by officer to recover estate on which fieri facias is lien, § 8.01-497 .

    As to lien of fieri facias on property not capable of being levied on, see §§ 8.01-501 through 8.01-505 .

    As to levy by execution, fieri facias, etc., upon motion vehicles, trailers or semitrailers, see § 46.2-644.

    Law Review.

    For article on fraudulent conveyances and preferences in Virginia, see 36 Wash. & Lee L. Rev. 51 (1979).

    For article on the effect of delay on a surety’s obligations in Virginia, see 18 U. Rich. L. Rev. 781 (1984).

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 27.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Under Virginia law, the officer is not required to seize the property levied on, but only to have it in his power and note it on the execution. The lien acquired by the levy of the execution is both substantial and enduring, as much so as a mortgage or a pledge. In re Lamm, 47 Bankr. 364, 1984 U.S. Dist. LEXIS 20373 (E.D. Va. 1984).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    The second step after the issuance of the execution is to levy the same on specific tangible property, by which such property is set apart from the general property of the defendant and placed in the custody of the law until it can be sold and applied to the payment of the execution. Walker v. Commonwealth, 59 Va. (18 Gratt.) 13, 1867 Va. LEXIS 33 (1867).

    What constitutes levy. —

    Under the law of Virginia, actual seizure of the goods levied upon is not necessary. If the officer has the goods in his view and power and notes on the writ the fact of his levy thereon, this will in general suffice. Palais v. DeJarnette, 145 F.2d 953, 1944 U.S. App. LEXIS 2712 (4th Cir. 1944).

    By levying an execution is meant the setting aside of specific property from the general property of the defendant and placing the same in the custody of the law until it can be sold and applied to the payment of the execution. Walker v. Commonwealth, 59 Va. (18 Gratt.) 13, 1867 Va. LEXIS 33 (1867).

    To constitute an effectual levy, it is not essential that the officer should make an actual seizure. If he has the goods in his power and view, this may suffice. Dorrier v. Masters, 83 Va. 459 , 2 S.E. 927 , 1887 Va. LEXIS 92 (1887).

    Failure to remove property from debtor’s premises does not, of itself, invalidate the levy. The practice in Virginia has been to permit it to remain on the premises of the debtor until the day of sale, in order to save expenses. Officers are not without “power” to levy because they are physically incapable of carrying away household goods levied on. Palais v. DeJarnette, 145 F.2d 953, 1944 U.S. App. LEXIS 2712 (4th Cir. 1944).

    No notice need be given debtor. —

    A valid levy may be made on household goods in the owner’s absence and where he had no formal notice. As to notice to the debtor, the rule in Virginia is that while notice is advisable, it is not essential. Palais v. DeJarnette, 145 F.2d 953, 1944 U.S. App. LEXIS 2712 (4th Cir. 1944).

    Plaintiff has right of control. —

    In executing a writ of fieri facias the sheriff is the agent of the beneficial plaintiff, and he and his attorney have the right to control the execution of the writ and to say whether the sheriff shall levy it, or return it without doing so. Rowe v. Hardy, 97 Va. 674 , 34 S.E. 625 , 1899 Va. LEXIS 84 (1899).

    A plaintiff may always, with the consent of the defendants, abandon a levy upon the property of all or any of them, retaining the right to sue out a new execution against all the defendants. Walker v. Commonwealth, 59 Va. (18 Gratt.) 13, 1867 Va. LEXIS 33 (1867).

    If the defendants in an execution be a principal and his sureties, and the property levied on be that of the sureties, the plaintiff may, with the consent of the sureties only, abandon the levy, and afterwards sue out executions against all the defendants. Walker v. Commonwealth, 59 Va. (18 Gratt.) 13, 1867 Va. LEXIS 33 (1867).

    Property fraudulently conveyed may be levied on. —

    If property subject to execution be conveyed and such conveyance be either with intent to hinder, delay or defraud creditors, or be upon consideration deemed voluntary in law, execution may still be enforced. For where the conveyance is fraudulent it is void as to both existing creditors, and subsequent purchasers, and where the conveyance is voluntary only, it is void as to antecedent creditors, though it may be sustained as against subsequent purchasers. Lucas v. Claffin & Co., 76 Va. 269 , 1882 Va. LEXIS 30 (1882); Fishburne v. Ferguson, 84 Va. 87 , 4 S.E. 575 , 1887 Va. LEXIS 12 (1887); Roanoke Nat'l Bank v. Farmers' Nat'l Bank, 84 Va. 603 , 5 S.E. 682 , 1888 Va. LEXIS 115 (1888); Rucker v. Moss, 84 Va. 634 , 5 S.E. 527 , 1888 Va. LEXIS 120 (1888); Beecher v. Wilson, 84 Va. 813 , 6 S.E. 209 , 1888 Va. LEXIS 149 (1888); Rixey v. Detrick, 85 Va. 42 , 6 S.E. 615 , 1888 Va. LEXIS 8 (1888).

    Execution cannot be levied on real estate. —

    Congress gave judgment creditors in federal causes the remedies provided by the state law. This section does not provide for levy of execution on real estate, and a federal court has no power to order it. Clark v. Allen, 117 F. 699, 1902 U.S. Dist. LEXIS 93 (D. Va. 1902); Allen v. Clark, 126 F. 738, 1903 U.S. App. LEXIS 4362 (4th Cir. 1903).

    Execution cannot be levied on real estate. Davis v. National Grange Ins. Co., 281 F. Supp. 998, 1968 U.S. Dist. LEXIS 8336 (E.D. Va. 1968), disapproved, Rowe v. United States Fidelity & Guaranty Co., 421 F.2d 937, 1970 U.S. App. LEXIS 11044 (4th Cir. 1970).

    A levy was not abandoned though creditors postponed sale at the request of debtor, where no relinquishment of the lien was found. As the court said in Walker v. Commonwealth, 59 Va. (18 Gratt.) 13, 98 Am. Dec. 631 (1867): “A mere suspension of proceedings on a levied execution does not release the levy.” Palais v. DeJarnette, 145 F.2d 953, 1944 U.S. App. LEXIS 2712 (4th Cir. 1944).

    B.Lien.

    Lien exists on things capable of being levied on. Such things are goods and chattels corporeal, as distinguished from incorporeal personalty, or, in other words, goods and chattels in possession as distinguished from choses in action. For example, horses, household and kitchen furniture, etc., are leviable; bonds, notes, and stocks are not. But while goods and chattels corporeal are in their nature leviable, they will cease to be so while in the hands of a receiver. For to levy execution upon them would be to interfere with the possession and control of the court. Davis v. Bonney, 89 Va. 755 , 17 S.E. 229 , 1893 Va. LEXIS 100 (1893).

    Nature of the lien. —

    The lien acquired by placing a writ of execution in the hands of the sheriff is of so imperfect a nature as that the plaintiff may abandon it at pleasure by withdrawing his execution from the hands of the sheriff or by directing him not to levy it, without discharging the judgment or even affecting the liability of a surety who may be one of several defendants. Humphrey v. Hitt, 47 Va. (6 Gratt.) 509, 1850 Va. LEXIS 3 (1850); Walker v. Commonwealth, 59 Va. (18 Gratt.) 13, 1867 Va. LEXIS 33 (1867) (see also Rhea v. Preston, 75 Va. 757 (1881)).

    The lien which a creditor acquires by a levy of his execution upon personal property is, if not enforced by a sale thereof, only temporary. Carr v. Glasscock, 44 Va. (3 Gratt.) 343, 1846 Va. LEXIS 65 (1846).

    The lien acquired by the levying of a fieri facias “is substantial and enduring, as much so as a mortgage or a pledge.” Humphrey v. Hitt, 47 Va. (6 Gratt.) 509, 1850 Va. LEXIS 3 (1850).

    The general lien of a fieri facias was intended as a substitute for the writ of capias ad satisfaciendum by which the judgment creditor could reach the unleviable property of an insolvent debtor. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    The remedy afforded by garnishment was designed simply to enforce this lien of execution. The lien itself is as complete and perfect without it as with it. It continues in full force, although the creditor should never resort to that remedy. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    And prior execution lien is superior to garnishment attachment. —

    A prior lien by writ of fieri facias is superior to a garnishment attachment even though the garnishment attachment was served on the garnishee first. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    When lien commences. —

    A fieri facias constitutes a lien from the time it is delivered to the officer to be executed. Charron & Co. v. Boswell, 59 Va. (18 Gratt.) 216, 1868 Va. LEXIS 10 (1868); Crump v. Commonwealth, 75 Va. 922 , 1882 Va. LEXIS 2 (1882); Frayser v. Richmond & A.R.R., 81 Va. 388 , 1886 Va. LEXIS 105 (1886); Boisseau v. Bass, 100 Va. 207 , 40 S.E. 647 , 1902 Va. LEXIS 17 (1902).

    A creditor’s judgments do not become liens on a third party’s indebtedness to the debtor until the garnishment summonses are issued. First Nat'l Bank v. Norfolk & W. Ry., 327 F. Supp. 196, 1971 U.S. Dist. LEXIS 13219 (E.D. Va. 1971).

    Validity of lien for purposes of bankruptcy. —

    Since attachment liens are valid in Virginia for the purposes of bankruptcy, then liens by writ of fieri facias must also be valid, because a prior existing fieri facias lien will defeat a subsequent attachment lien. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    When lien on intangibles perfected for bankruptcy. —

    The Virginia execution lien on intangibles is perfected for bankruptcy when the writ of fieri facias is delivered to the officer to be executed. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    Satisfaction of preexisting execution lien within four months of bankruptcy not a preference. —

    The satisfaction of a preexisting execution lien, during the four-month period preceding the filing of a bankruptcy petition, is not a preference. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    Instructions not to levy do not necessarily forfeit lien. —

    A creditor delivers a fieri facias to a deputy sheriff acting in a different district of the county from that in which the debtor resides, in order by such delivery to bind the debtor’s property, but with directions to the deputy to hold it till a future day, and then to transfer it to the deputy of the district in which the debtor resides, to be by him levied, unless the debt should be paid in the meantime, or unless the debtor should bring his property to the district of the first deputy to be sold, in which case the first deputy was to levy the execution upon it. It was held, that the writ became a lien from the time it was delivered to the officer notwithstanding the fact that the officer was instructed not to levy unless the conditions should be carried out. Pegram v. May, 36 Va. (9 Leigh) 176, 1838 Va. LEXIS 7 (1838).

    CIRCUIT COURT OPINIONS

    Conversion. —

    Judgment creditor proved conversion because a purchaser’s inchoate intangible rights in receivables from outstanding cases were subject to the lien of the writ of fieri facias obtained within a garnishment summons; any receivables due the purchaser at the time of placement into the sheriff’s hand of the garnishment and thereafter were within the scope of the creditor’s lien on intangibles. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017), vacated, rev'd, 300 Va. 25 , 859 S.E.2d 651, 2021 Va. LEXIS 71 (2021).

    OPINIONS OF THE ATTORNEY GENERAL

    Fees collected by sheriff when serving writs. —

    The fees sheriffs may charge for service of Summons to Answer Interrogatories, Summons in Garnishment, and Writs of Fieri Facias are governed by the express terms of § 17.1-272 . See opinion of Attorney General to The Honorable L.J. Ayers, III, Sheriff for Amherst County, 10-075, (02/04/11).

    Levy by sheriff against personal property when serving writs of fieri facias. —

    Writs of fieri facias, debtor interrogatories and garnishments are distinct, but related proceedings, so that, although sheriff or other executing officer may be required to levy on the tangible personal property of a judgment debtor when executing a writ of fieri facias, no such requirement is imposed when serving a Summons for Interrogatories or Garnishment Summons. See opinion of Attorney General to The Honorable L.J. Ayers, III, Sheriff for Amherst County, 10-075, (02/04/11).

    § 8.01-479. Time for enforcement.

    Property levied on, on or before the return day, may be advertised and sold within a reasonable time thereafter, and the lien given by this section may also be enforced after the return day of the writ by proceedings under § 8.01-506 and following of this chapter, if such proceedings be commenced before that day.

    History. Code 1950, § 8-412; 1977, c. 617; 1984, c. 557.

    Cross references.

    As to return of writ, see §§ 8.01-483 , 8.01-484 .

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, §§ 30, 36.

    CASE NOTES

    Editor’s note.

    Some of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    No levy after return day. —

    An execution may not be levied after the date upon which it is returnable, and the imperative duty to return does not arise until it is no longer possible to levy it. The life of the execution ends upon the date to which it is returnable, and the duty to return it then arises. That duty should be promptly performed. Moorman v. Board, 121 Va. 112 , 92 S.E. 833 , 1917 Va. LEXIS 15 (1917).

    Levy necessary to sale. —

    Before there can be a sale of corporeal personal property under execution there must be an actual levy of the writ of fieri facias and the mere delivery of the writ to the sheriff without a levy creates no security for the debt. Humphrey v. Hitt, 47 Va. (6 Gratt.) 509, 1850 Va. LEXIS 3 (1850); Walker v. Commonwealth, 59 Va. (18 Gratt.) 13, 1867 Va. LEXIS 33 (1867); Charron & Co. v. Boswell, 59 Va. (18 Gratt.) 216, 1868 Va. LEXIS 10 (1868).

    Right to levy is source of authority of officer. —

    The authority of an officer to collect money in discharge of an execution does not result from the lien, but is a consequence of the right to levy and sell the debtor’s property under the execution. So long as the right to sell continues, the right to receive remains; but no longer. Grandstaff v. Ridgely, 71 Va. (30 Gratt.) 1, 1878 Va. LEXIS 46 (1878).

    In the case of a sheriff’s sale, the sheriff derives his authority to sell from the writ of a fieri facias. Turnbull v. Clairborne, 30 Va. (3 Leigh) 392, 1831 Va. LEXIS 59 (1831).

    Duration of power to sell. —

    If the officer levies before the return day of the writ, he continues to have the power to sell, even after the return day has passed, and this power continues for a reasonable time. Reasonable time is a question of fact, dependent on the circumstances of each case. The test, of course, is whether an intention to abandon was manifest from the acts of the creditors. Palais v. DeJarnette, 145 F.2d 953, 1944 U.S. App. LEXIS 2712 (4th Cir. 1944).

    If the officer levies before the return day of the writ he may sell after the return day has passed; but if he fails to levy before the return day his authority to sell afterward ceases. Grandstaff v. Ridgely, 71 Va. (30 Gratt.) 1, 1878 Va. LEXIS 46 (1878).

    Necessity for sale. —

    The third and last step after the issuance of the execution, is the sale of the property. Then and not until then, the plaintiff may be said to have gotten to the end of his suit, at least as far as the defendant is concerned, and to the extent of the value of the property. Walker v. Commonwealth, 59 Va. (18 Gratt.) 13, 1867 Va. LEXIS 33 (1867); Rhea v. Preston, 75 Va. 757 , 1881 Va. LEXIS 55 (1881).

    A mere levy of an execution is not a satisfaction. There must be a sale or some other act divesting the debtor of his title or depriving him of his property. Rhea v. Preston, 75 Va. 757 , 1881 Va. LEXIS 55 (1881).

    Officer may fix details. —

    Sheriffs, being clothed with the power of the Commonwealth, may fix the time and place of sale. Carter v. Harris, 25 Va. (4 Rand.) 199, 1826 Va. LEXIS 26 (1826).

    OPINIONS OF THE ATTORNEY GENERAL

    Levy by sheriff against personal property when serving writs of fieri facias. —

    Writs of fieri facias, debtor interrogatories and garnishments are distinct, but related proceedings, so that, although sheriff or other executing officer may be required to levy on the tangible personal property of a judgment debtor when executing a writ of fieri facias, no such requirement is imposed when serving a Summons for Interrogatories or Garnishment Summons. See opinion of Attorney General to The Honorable L.J. Ayers, III, Sheriff for Amherst County, 10-075, (02/04/11).

    § 8.01-480. Prior security interest on property levied on.

    Tangible personal property subject to a prior security interest, or in which the execution debtor has only an equitable interest, may nevertheless be levied on for the satisfaction of a fieri facias. If the prior security interest is due and payable, the officer levying the fieri facias may sell the property free of such security interest, and apply the proceeds first to the payment of such security interest, and the residue, so far as necessary, to the satisfaction of the fieri facias. In the event the property is to be sold free of such prior security interest, the judgment creditor shall give written notice by certified mail to each secured party of record as hereafter specified, as his name and address shall appear on record, of the proposed sale, or to any secured party of whom the judgment creditor shall have actual knowledge. Such notice shall be given to each secured party who is of record at the State Corporation Commission, at the Department of Motor Vehicles, at the Department of Wildlife Resources, or in the clerk’s office in the city or county in Virginia, where the debtor has resided to the knowledge of the judgment creditor at any time during a one-year period prior to the sale. Certification of such notice shall be delivered to the sheriff or other officer conducting the sale pursuant to execution of the judgment, who shall announce that except as to such person so notified, the sale is subject to any prior security interest of record, other than one of record at a place where the debtor may have resided more than one year previously. If such prior security interest is not due and payable at the time of sale, such officer shall sell the property levied on subject to such security interest.

    History. Code 1950, § 8-413; 1977, c. 617; 1979, c. 491; 1990, c. 553; 2020, c. 958.

    The 2020 amendments.

    The 2020 amendment by c. 958, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” in the fourth sentence.

    Michie’s Jurisprudence.

    For related discussion, see 3C M.J. Commercial Law, § 100.

    § 8.01-481. Territorial extent of lien.

    The lien given by this chapter on personal property by levy shall, as to property capable of being levied on, be restricted to the bailiwick of the officer into whose hands the execution is placed to be executed, but as to property not capable of being levied on the lien shall extend throughout the limits of the Commonwealth.

    History. Code 1950, § 8-414; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-481 is former § 8-414. The language “. . . placing an execution in the hands of an officer to be executed shall . . .” has been deleted and the words “levy shall” have been inserted in its place. This change comports with the language in § 8.01-478 .

    Cross references.

    As to lien on property not capable of being levied on, see § 8.01-501 et seq.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 32.

    CASE NOTES

    State law clearly provides that a lien of fieri facias on intangible property extends throughout the Commonwealth. The manner in which the statute is worded indicates that a limitation to the coverage of the lien was not intended but rather that the lien was to be effective over as large a territory as possible. The fact remains, however, that the lien would not cover any property of the debtor located outside the Commonwealth. Homeowner's Fin. Corp. v. Pennington, 47 Bankr. 322, 1985 Bankr. LEXIS 6508 (Bankr. E.D. Va. 1985).

    § 8.01-482. If levy be on coin or currency, how accounted for.

    If the levy be on coin or currency (including notes) made a legal tender for the payment of debts, the same shall be accounted for at its par value as so much money made under the execution. If it be upon coin or currency (including notes) not a legal tender for the payment of debts, and the creditor will not take them at their nominal value, they shall be sold and accounted for as any other property taken under execution.

    History. Code 1950, § 8-415; 1977, c. 617.

    Article 3. Return and Venditioni Exponas.

    § 8.01-483. Return of officer on fieri facias; statement filed therewith.

    Upon a writ of fieri facias, the officer shall return whether the money therein mentioned has been or cannot be made. If there is only part thereof which is or cannot be made, he shall return the amount of such part. With every execution under which money is recovered, he shall return a statement of the amount received, including his fees and other charges, and shall pay such amount, except such fees and charges, to the person entitled. In his return upon every execution, the officer shall also state in what manner a copy of the writ was served in accordance with § 8.01-487.1 , whether or not he made a levy of the same, the date and time of such levy, the date when he received such payment or obtained such satisfaction upon such execution and, if there is more than one defendant, from which defendant he received the same.

    History. Code 1950, § 8-416; 1977, c. 617; 1986, c. 341.

    REVISERS’ NOTE

    Section 8.01-483 is former § 8-416. The language “. . . date and time . . .” has been inserted before the words “of such levy.” This language comports with the changes made in §§ 8.01-478 and 8.01-487 .

    Cross references.

    As to amendment of return, see § 8.01-277 .

    For return of summonses in garnishment, see § 8.01-514 .

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Creditors’ Suits, § 16.

    CASE NOTES

    Editor’s note.

    Some of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    A return on a writ of process is the short official statement of the officer indorsed thereon of what he has done in obedience to the mandate of the writ, or why he has done nothing. Rowe v. Hardy, 97 Va. 674 , 34 S.E. 625 , 1899 Va. LEXIS 84 (1899).

    A valid return may be made after the day to which the execution is returnable. In the present case, the executions were returned “no effects” two days after the return day. This was clearly within a reasonable time, and, therefore, the returns were made in the lawful performance of a delayed duty. Moorman v. Board of Supvrs., 121 Va. 112 , 92 S.E. 838 (1917).

    Amendment of return. —

    A sheriff cannot amend his return upon an execution after it has been filed, except by motion to the court, upon notice to the creditor. Hammen v. Minnick, 73 Va. (32 Gratt.) 249, 1879 Va. LEXIS 64 (1879).

    A return on a former execution is, generally, very material evidence on the hearing of a motion to quash an execution and it is often important, in the course of the proceedings, to permit the sheriff to make or amend his return according to the truth of the case, and with a view to its effect upon the decision of the motion. Such permission has always been given by our courts. Walker v. Commonwealth, 59 Va. (18 Gratt.) 13, 1867 Va. LEXIS 33 (1867).

    Where the truth of a return on an execution is not questioned, and no good reason to the contrary is shown, the officer making it should be allowed to amend by signing it, and thus make valid that which before had no appearance of official authenticity. Courts are liberal in allowing amendments of returns in proper cases, so as to conform to the truth, and the amendment when made has the same effect as though it were the original return, where the rights of third persons have not intervened, and it does not appear that injustice can result to anyone. There is no specific time within which a return must be amended, but, after a great lapse of time, an amendment should be permitted with caution, and in no case should it be allowed unless the court can see that it is in furtherance of justice. Slingluff v. Collins, 109 Va. 717 , 64 S.E. 1055 , 1909 Va. LEXIS 87 (1909).

    No amendment after decree entered against officer on return. —

    Having made return on an execution and on that return, in part, a decree having been entered, in subsequent proceedings against him and his sureties, the sheriff will not be permitted to amend his return, so as to explain it away and enable his sureties to escape liability for his default. Carr v. Meade, 77 Va. 142 , 1883 Va. LEXIS 45 (1883).

    But may amend after notice of motion against officer. —

    A sheriff may have leave to amend his return upon an execution, after notice of a motion against him founded on the original return. And the amended return may be made by a deputy who did not make the first return. Stone v. Wilson, 51 Va. (10 Gratt.) 211, 51 Va. (10 Gratt.) 529, 1853 Va. LEXIS 36 (1853).

    Presumption that officer did his duty. —

    In the absence of a date, or other evidence showing when the return of an officer on a writ was made, it is presumed to have been made at a time when he had the right to make it, and in due time, as the prima facie presumption is that the officer has done his duty. Rowe v. Hardy, 97 Va. 674 , 34 S.E. 625 , 1899 Va. LEXIS 84 (1899).

    Sufficiency of return. —

    It is required that the officer shall return upon a writ of fieri facias, “whether the money is or cannot be made.” A return of “Not levied by reason of the stay law” is a return substantially that the money “cannot be made,” and sufficient. Hamilton v. McConkey, 83 Va. 533 , 2 S.E. 724 , 1887 Va. LEXIS 97 (1887).

    A return on an execution “no effects known to me” is not vitiated by the fact that it is made before the return day of the writ, where, as in the case at bar, it is an agreed fact that, at the time the writ was placed in the hands of the officer, the defendants were notoriously insolvent. Slingluff v. Collins, 109 Va. 717 , 64 S.E. 1055 , 1909 Va. LEXIS 87 (1909).

    OPINIONS OF THE ATTORNEY GENERAL

    Storage and transportation expenses are deductible from proceeds of sale. —

    Expenses incurred for movement or storage of the property or other costs of the sale are deductible from the proceeds derived from the public sale. See opinion of Attorney General to The Honorable John R. Newhart, Sheriff for the City of Chesapeake, 01-005 (5/11/01).

    Levy by sheriff against personal property when serving writs of fieri facias. —

    Writs of fieri facias, debtor interrogatories and garnishments are distinct, but related proceedings, so that, although sheriff or other executing officer may be required to levy on the tangible personal property of a judgment debtor when executing a writ of fieri facias, no such requirement is imposed when serving a Summons for Interrogatories or Garnishment Summons. See opinion of Attorney General to The Honorable L.J. Ayers, III, Sheriff for Amherst County, 10-075, (02/04/11).

    § 8.01-484. When writ may be destroyed.

    A writ of fieri facias returned by the officer to the clerk’s office with a notation that the money cannot be made may be destroyed after two years from the date of the return.

    History. Code 1950, § 8-417; 1962, c. 110; 1977, c. 617; 1988, c. 420.

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Courts, § 28.

    § 8.01-485. When venditioni exponas may issue; proceedings thereon.

    When it appears by the return on an execution that property taken to satisfy it remains unsold, a writ of venditioni exponas may issue, whereupon the like proceedings shall be had as might have been had on the first execution; except, that if it issue upon a return of no sale for want of bidders, or of a sufficient bid, the advertisement shall state the fact, and that the sale will be made peremptorily.

    History. Code 1950, § 8-418; 1977, c. 617.

    Cross references.

    As to proceedings at sales generally, see § 8.01-96 et seq. and § 8.01-492 et seq.

    As to issuance of writ of venditioni exponas for property levied on for debts due the Commonwealth, see § 8.01-211 et seq.

    As to issuance and levy of fieri facias, see § 8.01-466 et seq. and § 8.01-478 et seq.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 48.

    § 8.01-486. Procedure when officer taking property under execution dies before sale.

    If an officer taking property under execution die before the sale thereof, and there be no deputies of such officer acting in the case, upon a suggestion of the fact a writ of venditioni exponas may be directed to the sheriff or other officer of the county or city wherein the property was taken. Whereupon the officer to whom the writ is directed shall take possession of the property previously levied upon, whether the same be in possession of the representatives of the deceased officer or the execution debtor, and proceed to advertise and sell it and account for the proceeds thereof in like manner as if the levy had been made by himself.

    History. Code 1950, § 8-419; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 48.

    Article 4. Enforcement Generally.

    § 8.01-487. Officer to endorse on fieri facias time of receiving it.

    Every officer shall endorse on each writ of fieri facias the date and time he receives the same and also when he levies upon tangible personal property of the debtor.

    History. Code 1950, § 8-420; 1977, c. 617; 2009, c. 443.

    REVISERS’ NOTE

    Section 8.01-487 is former § 8-420 rewritten to require every officer to endorse on each writ of fi. fa. the “date and time” when he receives the writ and also when he levies. This comports with § 8.01-478 .

    Cross references.

    As to time from which lien binds property levied on, see § 8.01-478 .

    As to penalty for service of notice of lien of a writ when no judgment exists, see § 8.01-504 .

    The 2009 amendments.

    The 2009 amendment by c. 443 deleted the former last sentence, which read: “If he fail to do so, the judgment creditor may, by motion, recover against him and his sureties, jointly and severally, in the court in which the judgment was rendered, a sum not exceeding fifteen percent upon the amount of the execution.”

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 39.

    § 8.01-487.1. Officer to leave copy of writ where levy made.

    An officer into whose hands a writ of fieri facias is placed to be levied, when making a levy shall serve a copy of the writ and any attachments thereto on the judgment debtor or other responsible person at the premises where the levy is made. If no such person is present, a copy of the writ and any attachments thereto shall be posted on the front door of such premises.

    History. 1986, c. 341.

    § 8.01-488. When several writs of fieri facias, how satisfied.

    Of writs of fieri facias, that which was first delivered to the officer, though two or more be delivered on the same day, shall be first levied and satisfied, and when several such executions are delivered to the officer at the same time they shall be satisfied ratably. But if an indemnifying bond be required by the officer as a prerequisite to a sale, and the same to be given by some of the creditors and not by others, and the officer sells under the protection of such bond, the proceeds of the sale shall be paid to the creditors giving the bond in the order in which their liens attached.

    History. Code 1950, § 8-421; 1977, c. 617.

    Law Review.

    For article on fraudulent conveyances and preferences in Virginia, see 36 Wash. & Lee L. Rev. 51 (1979).

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 39.

    § 8.01-489. Growing crops, not severed, not liable to distress or levy.

    No growing crop of any kind, not severed, shall be liable to distress or levy.

    History. Code 1950, § 8-421.1; 1977, c. 617.

    REVISERS’ NOTE

    The outdated exceptions in former § 8-421.1 of crops that may be taken by a writ of fi. fa. have been deleted from § 8.01-489 .

    Law Review.

    For note on crops as personalty or realty, see 39 Va. L. Rev. 1115 (1953).

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Crops, § 3.

    CASE NOTES

    Crops raised on homestead land are exempt. —

    Crops raised in the ordinary course of husbandry upon land previously set apart as a homestead are exempt from levy to the same extent as the land itself. Neblett v. Shackleton, 111 Va. 707 , 69 S.E. 946 , 1911 Va. LEXIS 20 (1911) (decided prior to 1977 amendment).

    § 8.01-490. No unreasonable distress or levy; sustenance provided for livestock; removal of property.

    Officers shall in no case make an unreasonable distress or levy. For horses, or any livestock distrained or levied on, the officer shall provide sufficient sustenance while they remain in his possession. Nothing distrained or levied on shall be removed by him out of his county or city, unless when it is otherwise specially provided.

    History. Code 1950, § 8-421.2; 1977, c. 617.

    Editor’s note.

    Acts 2020, c. 1289, Item 74 D, as added by Acts 2021, Sp. Sess. I, c. 552, effective for the biennium ending June 30, 2022, provides: “Notwithstanding the provisions of § 8.01-490 , Code of Virginia, a treasurer, sheriff or other officer distraining or levying upon personal property may employ a licensed auctioneer or auction firm, as defined in § 54.1-600, Code of Virginia, to sell such property on behalf of the officer, and may transport such property to the site of an auction for such purpose, regardless of whether the site is within or outside the officer’s county or city.”

    CASE NOTES

    Acceptance of excess by debtor waiver of any rights against officer for sale. —

    If an officer levies on and sells more goods than are necessary to pay a distress warrant in his hands, and pays over the excess to the tenant, who accepts the same, the receipt of the excess is a ratification of the officer’s act in selling more than he ought to have sold, and is a waiver of any wrongdoing on his part in making the sale. The tenant cannot affirm in part and disaffirm as to the residue. Manchester Home Bldg. & Loan Ass'n v. Porter, 106 Va. 528 , 56 S.E. 337 , 1907 Va. LEXIS 117 (1907) (decided under prior law).

    OPINIONS OF THE ATTORNEY GENERAL

    Discretion of sheriff. —

    It is within a sheriff’s discretion to determine whether the levy of a distress warrant is unreasonable; however, such discretion should not be exercised arbitrarily. See opinion of Attorney General to The Honorable John R. Newhart, Sheriff for the City of Chesapeake, 02-055 (9/27/02).

    § 8.01-491. Officer may break open dwelling house and levy on property in personal possession of debtor.

    An officer into whose hands an execution is placed to be levied, may, if need be, break open the outer doors of a dwelling house in the daytime, after having first demanded admittance of the occupant, in order to make a levy, and may also levy on property in the personal possession of the debtor if the same be open to observation.

    History. Code 1950, § 8-422; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-491 is former § 8-422 without change. The demand provision of this statute parallels § 8.01-470 .

    Cross references.

    As to use of force in levying distress warrant, see § 8.01-130.11 .

    As to use of force in levying writ for specific property, see § 8.01-470 .

    As to what writ may be levied on, see § 8.01-478 .

    As to unreasonable levy, see § 8.01-490 .

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 39.

    § 8.01-492. Sale of property.

    In any case of goods and chattels which an officer shall distrain or levy on, otherwise than under an attachment, or which he may be directed to sell by an order of a court, unless such order prescribe a different course, the officer shall fix upon a time and place for the sale thereof and post notice of the same at least ten days before the day of sale at some place near the residence of the owner if he reside in the county or city and at two or more public places in the officer’s county or city. If the goods and chattels be expensive to keep or perishable, the court from whose clerk’s office the writ of fieri facias or the distress warrant was issued under which the seizure is made, or if the distress warrant was issued by a clerk, the court of which he is a clerk, may order a sale of the property seized under fieri facias or distress warrant to be made upon such notice less than ten days as to such court may seem proper. At the time and place so appointed, such officer shall sell to the highest bidder, for cash, such goods and chattels, or so much thereof as may be necessary.

    History. Code 1950, § 8-422.1; 1962, c. 10; 1977, c. 617.

    Cross references.

    As to judicial sales, see § 8.01-96 et seq.

    As to terms of sale of real estate on executions for debts due the Commonwealth, see § 8.01-206 .

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, §§ 52, 53.

    CASE NOTES

    Private versus public sale. —

    Although an execution sale need not be advertised, where sheriff ’s notice of execution sale of hotel furnishings was posted at two court houses advertising “public sale” yet sale itself was held in a private room in the hotel, and the parties agreed to a predetermined sale price, these circumstances effectively limited the number of bidders and resulted in a private sale. Manufacturers Hanover Trust Co. v. Koubek, 240 Va. 276 , 396 S.E.2d 669, 1990 Va. LEXIS 118 (1990).

    OPINIONS OF THE ATTORNEY GENERAL

    Notice of distress sale. —

    A secured party with a lien on distressed property is required to receive notice of a distress sale as provided in § 58.1-3942 B and this section. See opinion of Attorney General to The Honorable John R. Newhart, Sheriff for the City of Chesapeake, 02-055 (9/27/02).

    Sale may be held on private property. —

    The fact that a sale is held on the private property of the debtor does not invalidate such sale; further, the sheriff may hold a sale on the private property of the debtor over the objection of the debtor as the sheriff has the authority, and the duty, to establish the place of the sale. See opinion of Attorney General to The Honorable John R. Newhart, Sheriff for the City of Chesapeake, 01-005 (5/11/01).

    § 8.01-493. Adjournment of sale.

    When there is not time, on the day appointed for any such sale, to complete the same, the sale may be adjourned from day to day until completed.

    History. Code 1950, § 8-422.2; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 51.

    § 8.01-494. Resale of property if purchaser fails to comply; remedy against such purchaser.

    If, at any sale by an officer, the purchaser does not comply with the terms of sale, the officer may sell the property, either forthwith or under a new advertisement, or return that the property was not sold for want of bidders. If, on a resale, the property be sold for less than it sold for before, the first purchaser shall be liable for the difference to the creditor, so far as is required to satisfy him, and to the debtor for the balance. This section shall not prevent the creditor from proceeding as he might have done if it had not been enacted.

    History. Code 1950, § 8-423; 1977, c. 617.

    Cross references.

    As to purchasers at judicial sales, see §§ 8.01-101 and 8.01-102 .

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 53.

    CASE NOTES

    Resale is at purchaser’s risk. —

    When a resale is ordered, upon default of the purchaser to comply with his contract by paying the purchase money, the former sale is not set aside, but the property is sold as the property of the purchaser and at his risk. Clarkson v. Read, 56 Va. (15 Gratt.) 288, 1859 Va. LEXIS 16 (1859); Tyler v. Toms, 75 Va. 116 , 1880 Va. LEXIS 11 (1880); Hurt v. Jones, 75 Va. 341 , 1881 Va. LEXIS 18 (1881); Virginia Fire & Marine Ins. Co. v. Cottrell, 85 Va. 857 , 9 S.E. 132 , 1889 Va. LEXIS 95 (1889); Whitehead v. Bradley, 87 Va. 676 , 13 S.E. 195 , 1891 Va. LEXIS 121 (1891) (decided under prior law).

    By bidding, the purchaser subjects himself to the jurisdiction of the court, and in effect becomes a party to the proceedings in which the sale is made, and may be compelled to complete his purchase by the process of the court. Brent v. Green, 33 Va. (6 Leigh) 16, 1835 Va. LEXIS 10 (1835); Robertson v. Smith, 94 Va. 250 , 26 S.E. 579 , 1897 Va. LEXIS 70 (1897) (decided under prior law).

    The purchaser is responsible for any difference between the sum at which he agreed to buy, i.e., the unpaid purchase money of the former sale together with the costs and expenses of the resale, and the amount which the property brings on resale. Clarkson v. Read, 56 Va. (15 Gratt.) 288, 1859 Va. LEXIS 16 (1859); Tyler v. Toms, 75 Va. 116 , 1880 Va. LEXIS 11 (1880); Hurt v. Jones, 75 Va. 341 , 1881 Va. LEXIS 18 (1881); Virginia Fire & Marine Ins. Co. v. Cottrell, 85 Va. 857 , 9 S.E. 132 , 1889 Va. LEXIS 95 (1889); Whitehead v. Bradley, 87 Va. 676 , 13 S.E. 195 , 1891 Va. LEXIS 121 (1891) (decided under prior law).

    And he is entitled to any surplus. —

    If, upon a resale of the property to compel the purchaser to comply with his contract, the property brings more than his liability he is entitled to the surplus. Tyler v. Toms, 75 Va. 116 , 1880 Va. LEXIS 11 (1880); Hurt v. Jones, 75 Va. 341 , 1881 Va. LEXIS 18 (1881); Virginia Fire & Marine Ins. Co. v. Cottrell, 85 Va. 857 , 9 S.E. 132 , 1889 Va. LEXIS 95 (1889); Whitehead v. Bradley, 87 Va. 676 , 13 S.E. 195 , 1891 Va. LEXIS 121 (1891) (decided under prior law).

    § 8.01-495. When money received by officer under execution to be repaid to debtor.

    When an officer has received money under execution, if any surplus remain in his hands after satisfying the execution, such surplus shall be repaid to the debtor; and if the debtor, or his personal representative, obtain an injunction or supersedeas to an execution, in whole or in part, before money received under it, or any part of it, is paid over to the creditor, the officer shall repay such debtor the money so received and not so paid over, or so much thereof as the injunction or supersedeas may extend to, unless such process otherwise direct.

    History. Code 1950, § 8-424; 1977, c. 617.

    Cross references.

    As to officer receiving money making return thereof and paying net proceeds, see § 8.01-499 .

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 59.

    § 8.01-496. Officer not required to go out of his jurisdiction to pay over money.

    No officer receiving money under execution, when the person to whom it is payable resides in a different county or city from that in which the officer resides, shall be liable to have any judgment rendered against him or his sureties for the nonpayment thereof, until a demand of payment be made of such officer in his county or city, by such creditor or his attorney-at-law, or some person having a written order from the creditor.

    History. Code 1950, § 8-425; 1977, c. 617.

    CASE NOTES

    Editor’s note.

    Necessity for demand. —

    Where the plaintiff in an action against a sheriff to recover money received under an execution lives in the county no demand of the money is necessary before proceeding to subject the sheriff. Tyree v. Donnally, 50 Va. (9 Gratt.) 64, 1852 Va. LEXIS 57 (1852); Grandstaff v. Ridgely, 71 Va. (30 Gratt.) 1, 1878 Va. LEXIS 46 (1878).

    County creditor provided for in the county levy is not bound to apply to the sheriff or to his deputies for payment before he proceeds to enforce payment of his debt by the sheriff and his sureties. Ballard v. Thomas, 60 Va. (19 Gratt.) 14, 1868 Va. LEXIS 2 (1868).

    But when the plaintiff in execution does not reside in the same county with the sheriff, there must be a demand of payment before an action can be maintained on the sheriff’s official bond. Grandstaff v. Ridgely, 71 Va. (30 Gratt.) 1, 1878 Va. LEXIS 46 (1878).

    Demand by attorney sufficient. —

    Where an execution is delivered to the sheriff of a county other than that in which the creditor resides, and the creditor employs an attorney practicing in the sheriff’s county, to collect the money without giving the attorney a written order and the attorney makes a demand on the sheriff, such demand, if no objection be made at the time to the surety of the attorney, is sufficient to justify a judgment against the sheriff. Chapman v. Chevis, 36 Va. (9 Leigh) 297, 1838 Va. LEXIS 16 (1838).

    A demand by an attorney at law who prosecuted the suit and obtained judgment was sufficient to authorize a motion against the sheriff for nonpayment. Wilson v. Stokes, 18 Va. (4 Munf) 455, 1815 Va. LEXIS 33 (1815).

    Procedure. —

    In an action by an execution creditor against the sheriff and his sureties upon his official bond for the failure to pay over the money he had collected on the execution, the motion not stating that the plaintiff did not reside in the county of the sheriff, it is not necessary to aver that a demand had been made upon the sheriff, as prescribed by the statute before the action was instituted. But if it appears upon the trial that the plaintiff did not reside in the same county with the sheriff, the plaintiff must prove the demand in accordance with this section or his action will fail. Grandstaff v. Ridgely, 71 Va. (30 Gratt.) 1, 1878 Va. LEXIS 46 (1878).

    § 8.01-497. Suit by officer to recover estate on which fieri facias is lien.

    For the recovery of any estate on which a writ of fieri facias is a lien under this chapter, or on which the judgment on which such writ issues is a lien under Chapter 17 (§ 8.01-426 et seq.) of this title, or for the enforcement of any liability in respect to any such estate, a suit may be maintained, at law or in equity, as the case may require, in the name of the officer to whom such writ was delivered, or in the name of any other officer who may be designated for the purpose by an order of the court in which the judgment is entered. No officer shall be bound to bring such suit unless bond, with sufficient surety, be given him to indemnify him against all expenses and costs which he may incur or become liable for by reason thereof. But any person interested may bring such suit at his own costs in the officer’s name.

    History. Code 1950, § 8-426; 1977, c. 617.

    Cross references.

    As to property on which writ of fieri facias may be levied, see § 8.01-478 .

    As to lien on property not capable of being levied on, see §§ 8.01-501 through 8.01-505 .

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 69.

    § 8.01-498. Selling officers and employees not to bid or to purchase.

    No officer of any city, town, county or constitutional officer or employee of any such city, town, county or constitutional office shall, directly or indirectly, bid on or purchase effects sold under a writ by such officer. Anyone violating this section shall be guilty of a Class 1 misdemeanor.

    History. Code 1950, § 8-427; 1975, c. 84; 1977, c. 617; 1988, c. 674.

    REVISERS’ NOTE

    Section 8.01-498 is former § 8-427, the application of which has been changed. The statute applies to any officer or employee of a city, town or county.

    Cross references.

    As to punishment for Class 1 misdemeanors, see § 18.2-11 .

    § 8.01-499. Officer receiving money to make return thereof and pay net proceeds; commission, etc.

    An officer receiving money under this chapter shall make return thereof forthwith to the court or the clerk’s office of the court in which the judgment is entered. For failing to do so, the officer shall be liable as if he had acted under an order of such court. After deducting from such money a commission of 10 percent and his necessary expenses and costs, including reasonable fees to sheriff’s counsel, he shall pay the net proceeds, and he and his sureties and their representatives shall be liable therefor, in like manner as if the same had been made under a writ of fieri facias on the judgment.

    History. Code 1950, § 8-429; 1977, c. 617; 2004, cc. 198, 211.

    REVISERS’ NOTE

    Section 8.01-499 is former § 8-429, rewritten to require the officer receiving money to return it “forthwith” instead of within thirty days. Antiquated language has been deleted to allow the statute to comport with modern practice.

    Cross references.

    As to disposition of surplus from sale, see § 8.01-373 .

    As to disposition of proceeds from sale of realty, see § 8.01-462 .

    As to fee for officer who after distraining or levying on property neither sells nor receives payment, etc., see § 15.2-1609.3 .

    As to fee when no levy is made, see § 17.1-272 .

    The 2004 amendments.

    The 2004 amendments by cc. 198 and 211 are identical, and substituted “10 percent” for “five per centum” in the last sentence.

    OPINIONS OF THE ATTORNEY GENERAL

    Commission not authorized for serving a distress warrant. —

    A sheriff is not entitled to the five percent commission authorized under § 8.01-499 for serving a distress warrant on behalf of the local treasurer for the collection of delinquent taxes, which subsequently are paid to the treasurer’s office. See opinion of Attorney General to The Honorable John R. Newhart, Sheriff for the City of Chesapeake, 03-030 (6/26/03).

    Storage and transportation expenses are deductible from proceeds of sale. —

    Expenses incurred for movement or storage of the property or other costs of the sale are deductible from the proceeds derived from the public sale. See opinion of Attorney General to The Honorable John R. Newhart, Sheriff for the City of Chesapeake, 01-005 (5/11/01).

    Commission. —

    It is within a sheriff’s discretion whether or not to collect a commission under § 8.01-499 . If a commission is collected, the sheriff must comply with § 15.2-1615 . See opinion of Attorney General to The Honorable J. E. “Chip” Harding, Sheriff, County of Albemarle, 13-101, 2013 Va. AG LEXIS 96 (12/20/13).

    § 8.01-500. Officer receiving money to notify person entitled to receive it.

    Every officer collecting or receiving money to be applied on any execution or other legal process, or on any claim, whether judgment has been rendered thereon or not, shall notify in writing by mail or otherwise, within thirty days after such money is received, the person entitled to receive such money, if known. Any officer failing without good cause to comply with this section within the time prescribed shall be fined not less than twenty dollars nor more than fifty dollars for each offense.

    History. Code 1950, § 8-430; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-500 is former § 8-430. The dollar limits on the fine have been increased from $5 and $20, to $20 and $50, respectively.

    Article 5. Lien on Property Not Capable of Being Levied on.

    § 8.01-501. Lien of fieri facias on estate of debtor not capable of being levied on.

    Every writ of fieri facias shall, in addition to the lien it has under §§ 8.01-478 and 8.01-479 on what is capable of being levied on under those sections, be a lien from the time it is delivered to a sheriff or other officer, or any person authorized to serve process pursuant to § 8.01-293 , to be executed, on all the personal estate of or to which the judgment debtor is, or may afterwards and on or before the return day of such writ or before the return day of any wage garnishment to enforce the same, become, possessed or entitled, in which, from its nature is not capable of being levied on under such sections, except such as is exempt under the provisions of Title 34, and except that, as against an assignee of any such estate for valuable consideration, the lien by virtue of this section shall not affect him unless he had notice thereof at the time of the assignment.

    History. Code 1950, § 8-431; 1977, c. 617; 1996, c. 1002; 2006, c. 575.

    Cross references.

    As to issuance of other executions, see § 8.01-475 .

    As to territorial extent of lien of execution, see § 8.01-481 .

    The 2006 amendments.

    The 2006 amendment by c. 575 inserted “or before the return day of any wage garnishment to enforce the same” following “such writ.”

    Law Review.

    For article on fraudulent conveyances and preferences in Virginia, see 36 Wash. & Lee L. Rev. 51 (1979).

    For article on the effect of delay on a surety’s obligations in Virginia, see 18 U. Rich. L. Rev. 781 (1984).

    As to scope of assets subject to lien, see 22 U. Rich. L. Rev. 517 (1988).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For comment, “Obtaining and Enforcing a Security Interest in Local Currency Under Article 9 of the UCC,” see 53 U. Rich. L. Rev. 769 (2019).

    Michie’s Jurisprudence.

    For related discussion, see 2B M.J. Bankruptcy, § 112.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Execution lien dates from time writ is delivered to the sheriff. —

    Such lien on intangibles is perfected in that it has priority over all subsequent execution liens. In re Dulaney, 29 Bankr. 79, 1982 Bankr. LEXIS 5234 (Bankr. W.D. Va. 1982).

    The execution of a writ of fieri facias establishes a lien on intangibles from the time the writ is delivered to the sheriff. Pischke v. Murray, 11 Bankr. 913, 1981 Bankr. LEXIS 3534 (Bankr. E.D. Va. 1981); Hughson v. Dressler Motors, Inc., 74 Bankr. 438, 1987 Bankr. LEXIS 923 (Bankr. W.D. Va. 1987).

    The lien is created when execution is delivered to the officer. The lien exists from that date. The issuance and service of the garnishment is the means of enforcing the lien. In re Lamm, 47 Bankr. 364, 1984 U.S. Dist. LEXIS 20373 (E.D. Va. 1984).

    Where plaintiff had no possessory interest in funds retained by VDOT on August 29, 1994, no lien was established and no garnishment of funds could result. International Fid. Ins. Co. v. Ashland Lumber Co., 250 Va. 507 , 463 S.E.2d 664, 1995 Va. LEXIS 144 (1995).

    Lien of a writ of fieri facias under § 8.01-501 required the law firms holding the client funds of the judgment debtor to cease disbursing funds from their trust accounts to satisfy legal fees and costs that the judgment debtor owed to them for services rendered and to pay those funds to the judgment creditor effective on the date that the writ of fieri facias was delivered to the sheriff for issuance; the writ was a lien on the equitable interest that the judgment debtor had in the funds paid as retainers to the law firms and the service of notice requirements of § 8.01-502 did not apply to the law firms because they had not used those funds to pay the judgment debtor but, instead, had used the funds to pay themselves. Marcus, Santoro & Kozak, P.C. v. Wu, 274 Va. 743 , 652 S.E.2d 777, 2007 Va. LEXIS 135 (2007).

    Under Virginia law, the officer is not required to seize the property levied on, but only to have it in his power and note it on the execution. The lien acquired by the levy of the execution is both substantial and enduring, as much so as a mortgage or a pledge. In re Lamm, 47 Bankr. 364, 1984 U.S. Dist. LEXIS 20373 (E.D. Va. 1984).

    Execution on intangible property. —

    In Virginia, a creditor who has obtained a money judgment may enforce that judgment against his debtor’s personal property by execution. Execution on intangible personalty, including a chose in action owned by the debtor, is carried out by means of a writ of fieri facias which is issued and placed in the hands of the sheriff. In re Dulaney, 29 Bankr. 79, 1982 Bankr. LEXIS 5234 (Bankr. W.D. Va. 1982).

    A writ of fieri facias shall be a lien on all the personal estate of the judgment debtor including intangible, unleviable property. Homeowner's Fin. Corp. v. Pennington, 47 Bankr. 322, 1985 Bankr. LEXIS 6508 (Bankr. E.D. Va. 1985).

    The lien of fieri facias extends to all the personal estate of the judgment debtor which is not capable of being levied on, which includes bonds, notes, stocks, debts of all kinds, including a debt payable in the future and includes all choses in action to which a debtor may be entitled. In re Lamm, 47 Bankr. 364, 1984 U.S. Dist. LEXIS 20373 (E.D. Va. 1984).

    When property of a judgment debtor is not capable of being levied on, as in the case of intangible personal property, such property is nevertheless subject to the execution lien upon delivery of the writ to a sheriff or other officer. Network Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759 , 529 S.E.2d 80, 2000 Va. LEXIS 75 (2000).

    Circuit court erred in granting summary judgment to the judgment creditors and enforcing liens upon the potential 2015 income tax refunds of the debtors because any potential income tax refunds for that tax year were not in possession of or under the control of the debtors so as to be reachable by the lien inasmuch as the debtors had not filed their income tax returns by the return date on the writ of fieri facias. Shifflett v. Latitude Props., 294 Va. 476 , 808 S.E.2d 182, 2017 Va. LEXIS 175 (2017).

    Types of intangible personal property. —

    Bank deposit account is a “chose in action” in favor of the customer against the bank. Accordingly, it is clear that the bank depositor’s claim against the bank is a type of intangible personal property which from its nature is not capable of being levied on, and, as such, it is clearly within the scope of the statute. Creasy v. McGarry (In re Abingdon Orthopedic Assocs., P.C.), No. 10-72803, No. 12-07021, 2012 Bankr. LEXIS 6282 (Bankr. W.D. Va. Oct. 11, 2012).

    Execution lien is not effective as against a bona fide assignee or purchaser for value who is without notice of such lien. In re Dulaney, 29 Bankr. 79, 1982 Bankr. LEXIS 5234 (Bankr. W.D. Va. 1982).

    Under this section, “the only person who can defeat the fieri facias lien is a bona fide purchaser or assignee for value without notice,” and “the satisfaction of . . . (the) preexisting execution lien, during the four-month period preceding the filing of the bankruptcy petition, was not a preference.” This “means that the Virginia execution lien on intangibles is perfected for bankruptcy when the writ of fieri facias is delivered to the officer to be executed.” In re Lamm, 47 Bankr. 364, 1984 U.S. Dist. LEXIS 20373 (E.D. Va. 1984).

    The mere issuance of an execution constitutes no notice to a bona fide assignee for valuable consideration, since this section expressly excepts such an execution from the operation of the section. Virginia Mach. & Well Co. v. Hungerford Coal Co., 182 Va. 550 , 29 S.E.2d 359, 1944 Va. LEXIS 203 (1944).

    Where assignment of lease is valid. —

    Where it was determined that an assignment of a lease to the note holder was valid, the garnishment of lease payments made by a judgment creditor was improper; the alleged assignee did not own the right to receive the lease payments, and therefore summary judgment was issued to the note holder because the judgment debtor had no interest in the property held by the suggested garnishee, and the writ did not create a valid lien on the property. Wells Fargo Bank v. Levin Prof'l Servs., 348 F. Supp. 2d 638, 2004 U.S. Dist. LEXIS 27070 (E.D. Va. 2004), aff'd, 189 Fed. Appx. 239, 2006 U.S. App. LEXIS 17439 (4th Cir. 2006).

    Priority of charging order. —

    Plaintiff did not cause a writ of execution to issue. Instead, it merely sought the entry of a charging order armed only with what may be best described as a “naked” final judgment. Therefore, until a charging order entered, the judgment debtor virtually was free, as against the instant plaintiff, to encumber intangible property, including her interests to discretionary distributions of limited partnerships. A charging order, without more, does not take priority over a security interest perfected after judgment but before the entry date of the charging order. First Union Nat'l Bank v. Craun, 853 F. Supp. 209, 1994 U.S. Dist. LEXIS 6811 (W.D. Va. 1994).

    Debts of garnishee subject to this section. —

    Construing §§ 8.01-511 and 8.01-512.3 together against the background of this section, a garnishment subjects to the execution lien of this section, not only those debts already due the judgment debtor when the summons in garnishment is served upon the garnishee, but also any indebtedness of the garnishee to the judgment debtor which arises between the date of service of such summons on the garnishee and the return date of the summons. Virginia Nat'l Bank v. Blofeld, 234 Va. 395 , 362 S.E.2d 692, 4 Va. Law Rep. 1230, 1987 Va. LEXIS 269 (1987).

    Priority in bankruptcy proceeding determined by sequence of charging orders. —

    In a proceeding under Chapter XI of the Bankruptcy Act, in which the debtor in possession, a limited partner, filed a complaint seeking a determination of the validity, priority or extent of various liens upon its property, the judgment lien holders obtained priority, if at all, in the sequence in which they were granted charging orders under former § 50-65 by a court of competent jurisdiction, rather than in the order of the dates on which the writs of fieri facias were delivered to the sheriff for execution, in the absence of any evidence that any of the defendants holding judgment liens were precluded from seeking charging orders pursuant to former § 50-65. Pischke v. Murray, 11 Bankr. 913, 1981 Bankr. LEXIS 3534 (Bankr. E.D. Va. 1981).

    Trustee’s interest in debtor’s property. —

    Although the creditor has an interest superior to that of the trustee with respect to the debtor’s property covered by the judicial lien obtained through the execution of the writ of fieri facias, the trustee’s interest in debtor’s property not properly covered by the lien as of the petition filing date is superior to that of the creditor. Homeowner's Fin. Corp. v. Pennington, 47 Bankr. 322, 1985 Bankr. LEXIS 6508 (Bankr. E.D. Va. 1985).

    Lien on funds enforceable when service of garnishment summons complete. —

    Circuit court erred in ordering payment to a judgment creditor of the amount remaining in a judgment debtor’s account on the date a garnishee answered the garnishment summons because any funds that reached the account were funds the debtor was entitled to and were subject to garnishment; the garnishee was a bank and third party debtor since it held funds the debtor was entitled to in its account, and the lien on the funds became enforceable against it when the garnishment summons was served. PS Bus., L.P. v. Deutsch & Gilden, Inc., 287 Va. 410 , 758 S.E.2d 508, 2014 Va. LEXIS 62 (2014).

    Under Virginia law, a creditor’s lien arose on the date that a writ of fieri facias and garnishment summons were served on a bank and debtor’s accounts were frozen, but on the date that debtor filed his bankruptcy petition, the funds were still on deposit and had not been delivered to the state court. Thus, the garnished funds did not vest in the creditor, as the automatic stay was in place prior to the time when the state court could have ordered payment of the funds to the creditor, and debtor was entitled to avoid the creditor’s judgment lien as impairing his exemption in those funds. In re Underwood, No. 18-70168, 2018 Bankr. LEXIS 1573 (Bankr. W.D. Va. May 30, 2018).

    When lien perfected. —

    The lien described in this section is perfected against unleviable, intangible personal property which the judgment debtor possesses (or is entitled to possess) at the time the fieri facias writ is delivered to the sheriff or acquires possession of (or entitlement thereto) at any time up to, and including, the return date of the writ. In re Hess, 40 Bankr. 491, 1984 Bankr. LEXIS 5377 (Bankr. W.D. Va. 1984).

    When lien ceases. —

    The execution of a writ of fieri facias establishes a lien on intangibles from the time it is delivered to the officer. The lien, once established, only ceases when the right of the judgment creditor to enforce the judgment by execution or by action, or to extend the right by motion, ceases. Further, as to intangibles, the lien shall cease one year from the return date of the execution pursuant to which the lien arose, or where the intangible is a debt due from or a claim upon a third person in favor of the judgment debtor or the estate of such person, one year from the final determination of the amount owed to the judgment debtor. In re Lamm, 47 Bankr. 364, 1984 U.S. Dist. LEXIS 20373 (E.D. Va. 1984).

    If creditor’s lien is extant under state law prior to commencement of bankruptcy, the lien remains viable even if under the terms of the law creating the lien it would expire absent some action of the creditor. For example, the creditor would not be obliged to seek relief from the stay in order to seek a new writ of fieri facias to keep the lien in effect. Thus, the lien of fieri facias remains viable during the pendency of the bankruptcy proceedings. Homeowner's Fin. Corp. v. Pennington, 47 Bankr. 322, 1985 Bankr. LEXIS 6508 (Bankr. E.D. Va. 1985).

    II.Decisions Under Prior Law.

    Editor’s note.

    The general lien of fieri facias was intended as a substitute for the writ of capias ad satisfaciendum by which the judgment creditor could reach the unleviable property of an insolvent debtor. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    Validity of lien. —

    Since attachment liens are valid in Virginia for the purposes of bankruptcy, then liens by writ of fieri facias must also be valid because a prior existing fieri facias lien will defeat a subsequent attachment lien. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    Lien begins from the time the writ is delivered to the sheriff for execution, the same as the lien under § 8.01-478 . Charron & Co. v. Boswell, 59 Va. (18 Gratt.) 216, 1868 Va. LEXIS 10 (1868); Frayser v. Richmond & A.R.R., 81 Va. 388 , 1886 Va. LEXIS 105 (1886).

    The Virginia execution lien on intangibles is perfected for bankruptcy when the writ of fieri facias is delivered to the officer to be executed. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    Fieri facias lien and attachment lien take effect at different times. —

    The two Code chapters dealing with garnishment in aid of the fieri facias lien on unleviable property and garnishment by attachment lien provide for their taking effect at different times. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    The remedy afforded by garnishment was designed simply to enforce this lien of execution. The lien itself is as complete and perfect without it and with it. It continues in full force, although the creditor should never resort to that remedy. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    Property subject to lien. —

    Speaking generally, this lien extends to such things as are not affected by the lien under §§ 8.01-478 and 8.01-479 . Hence, it extends to all the personal estate of the judgment debtor which is not capable of being levied on. This includes incorporeal personalty, such as bonds, notes, stocks, debts of all kinds, etc. A debt which has a present existence, although payable in the future, may be subjected to the lien of a fieri facias, but not a debt which rests upon a contingency which may or may not happen, and over which the court has no control. Boisseau v. Bass, 100 Va. 207 , 40 S.E. 647 , 1902 Va. LEXIS 17 (1902).

    The lien of a fieri facias includes all choses in action to which the debtor is entitled. Evans v. Greenhow, 56 Va. (15 Gratt.) 153, 1859 Va. LEXIS 8 (1859).

    Lien on amount due for work done. —

    Under this section a writ of fieri facias against a contractor, is a lien upon the amount due him by a city for work done between the date the writ was placed in the hands of an officer to be executed and the return day of the writ, although the amount be a percent of the contract price reserved as security for the completion of the work, and is not payable until the work is completed. If the work is subsequently completed, the lien may be enforced. Hicks v. Roanoke Brick Co., 94 Va. 741 , 27 S.E. 596 (1897). But see Boisseau v. Bass, 100 Va. 207 , 40 S.E. 647 (1902), questioning this decision .

    And on a legacy. —

    Under this section, a lien may be acquired upon a legacy. Baer v. Ingram, 99 Va. 200 , 37 S.E. 905 , 1901 Va. LEXIS 29 (1901).

    But not on interest in a life insurance policy. —

    The interest of an assured in a policy on his life which has no present market value, but is dependent for its continued existence on voluntary payments to be made in the future by the assured, is not such an interest or estate as can be reached by a fieri facias. Boisseau v. Bass, 100 Va. 207 , 40 S.E. 647 , 1902 Va. LEXIS 17 (1902).

    Nor on wages payable in advance. —

    If, after service of notice on the employer of a judgment debtor under this section such debtor and garnishee enter into a new agreement of employment by the terms of which the employer is to pay the daily wage agreed upon to the employee each day in advance, such wages paid by the employer after notice of the fieri facias and before its return day are not such debts due the judgment debtor by the garnishee as are subject to the lien of the fieri facias. South Boston Bank v. Johnston, 16 Va. L. Reg. 911 (1911).

    Bona fide assignees for value not affected by lien. —

    The lien of an execution is held not to affect a bona fide assignee of intangible property, for value and without notice of such lien. Evans v. Greenhow, 56 Va. (15 Gratt.) 153, 1859 Va. LEXIS 8 (1859); Charron & Co. v. Boswell, 59 Va. (18 Gratt.) 216, 1868 Va. LEXIS 10 (1868); Trevillian v. Guerrant, 72 Va. (31 Gratt.) 525, 1879 Va. LEXIS 19 (1879).

    The trustees and beneficiaries in a deed to secure bona fide debts, without notice, are purchasers for valuable consideration and will be preferred to an execution creditor of the grantor in the deed as to a chose in action thereby conveyed. Evans v. Greenhow, 56 Va. (15 Gratt.) 153, 1859 Va. LEXIS 8 (1859).

    Under this section an insolvent debtor may, notwithstanding his insolvency, make a valid assignment of a chose in action owned by him, and the bona fide assignee for value of such chose in action takes title thereto superior to the lien of a fieri facias against such debtor. It is immaterial whether the debtor intended to commit a fraud in making the assignment or not, if the assignee has no notice of such intent or of the existence of the fieri facias, and pays value. Shields v. Mahoney, 94 Va. 487 , 27 S.E. 23 , 1897 Va. LEXIS 99 (1897).

    The mere issuance of an execution constitutes no notice to a bona fide assignee for valuable consideration, since this section expressly excepts such an execution from the operation of the section. Virginia Mach. & Well Co. v. Hungerford Coal Co., 182 Va. 550 , 29 S.E.2d 359, 1944 Va. LEXIS 203 (1944).

    The lien of a fieri facias has priority over a subsequent attachment. Puryear v. Taylor, 53 Va. (12 Gratt.) 401, 1855 Va. LEXIS 29 (1855).

    A prior lien by writ of fieri facias is superior to a garnishment attachment even though the garnishment attachment was served on the garnishee first. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    And over a subsequent execution lien. —

    It has priority over a subsequent execution lien under the same law, even though there has been a proceeding by suggestion sooner than under the senior execution, and this though the executions issued from different courts. Charron & Co. v. Boswell, 59 Va. (18 Gratt.) 216, 1868 Va. LEXIS 10 (1868).

    Satisfaction of preexisting lien within four months of bankruptcy not a preference. —

    The satisfaction of a preexisting execution lien, during the four-month period preceding the filing of a bankruptcy petition, is not a preference. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    CIRCUIT COURT OPINIONS

    Conversion. —

    Judgment creditor proved conversion because a purchaser’s inchoate intangible rights in receivables from outstanding cases were subject to the lien of the writ of fieri facias obtained within a garnishment summons; any receivables due the purchaser at the time of placement into the sheriff’s hand of the garnishment and thereafter were within the scope of the creditor’s lien on intangibles. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017), vacated, rev'd, 300 Va. 25 , 859 S.E.2d 651, 2021 Va. LEXIS 71 (2021).

    Law firm trust account. —

    Law firm, upon receiving a garnishment summons pertaining to a judgment against a client, was not permitted to withdraw portions of the client’s retainer fee from the law firm’s trust account to compensate the law firm for accrued legal fees as the judgment creditor had a right to those funds under § 8.01-501 . Allen Corp. of Am., Inc. v. Reginald Zayas Miles & Stockbridge P.C., 97 Va. Cir. 126, 2017 Va. Cir. LEXIS 310 (Fairfax County Oct. 26, 2017).

    OPINIONS OF THE ATTORNEY GENERAL

    Levy by sheriff against personal property when serving writs of fieri facias. —

    Writs of fieri facias, debtor interrogatories and garnishments are distinct, but related proceedings, so that, although sheriff or other executing officer may be required to levy on the tangible personal property of a judgment debtor when executing a writ of fieri facias, no such requirement is imposed when serving a Summons for Interrogatories or Garnishment Summons. See opinion of Attorney General to The Honorable L.J. Ayers, III, Sheriff for Amherst County, 10-075, (02/04/11).

    § 8.01-502. Person paying debtor not affected by lien unless notice given.

    As against a person making a payment to the judgment debtor, the lien referred to in § 8.01-501 shall not affect him, unless and until he be given written notice thereof setting forth (i) the name of the person against whom obtained, (ii) by whom obtained, (iii) the amount and costs of the judgment, (iv) the date recovered, (v) the date of the issuance or renewal of execution thereon, (vi) the return day of execution, and (vii) the date of placing of the execution in the hands of the officer or other person authorized to serve process pursuant to § 8.01-293 , and unless such notice shall be personally signed by the plaintiff or his attorney and shall have been duly served upon the person making payment and the judgment debtor by an officer authorized to serve civil process.

    History. Code 1950, § 8-432; 1954, c. 615; 1977, c. 617; 1996, c. 1002.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 35.

    CASE NOTES

    Notice requirement. —

    Lien of a writ of fieri facias under § 8.01-501 required the law firms holding the client funds of the judgment debtor to cease disbursing funds from their trust accounts to satisfy legal fees and costs that the judgment debtor owed to them for services rendered and to pay those funds to the judgment creditor effective on the date that the writ of fieri facias was delivered to the sheriff for issuance; the writ was a lien on the equitable interest that the judgment debtor had in the funds paid as retainers to the law firms and the service of notice requirements of § 8.01-502 did not apply to the law firms because they had not used those funds to pay the judgment debtor but, instead, had used the funds to pay themselves. Marcus, Santoro & Kozak, P.C. v. Wu, 274 Va. 743 , 652 S.E.2d 777, 2007 Va. LEXIS 135 (2007).

    Payment by sub-debtor without notice is good. —

    A payment to the execution debtor by his debtor in good faith without notice is good against the execution creditor. See Evans v. Greenhow, 56 Va. (15 Gratt.) 153, 1859 Va. LEXIS 8 (1859) (decided under prior law).

    § 8.01-502.1. Serving notice of lien on financial institution.

    1. No judgment creditor or attorney for a judgment creditor shall have a notice of lien served on a financial institution under § 8.01-502 unless such judgment creditor or attorney has a reasonable basis for believing that the judgment debtor is entitled to a payment from such institution. The fact that a financial institution is doing business in a geographic area where the judgment debtor resides, works or has a place of business is not, by itself, a reasonable basis for believing that the judgment debtor is entitled to a payment from a financial institution. Any person violating this section shall be liable to a financial institution for the sum of $100 for each notice of lien wrongfully served on such institution. In any action at law to recover an amount due hereunder, the judgment creditor or attorney for the judgment creditor causing the notice of lien to be served on the financial institution shall have the burden of showing a reasonable basis for believing that the judgment debtor was entitled to a payment from such institution.
    2. Any judgment creditor serving a notice of lien on a financial institution shall, within five business days of such service, mail to the judgment debtor at his last known address a copy of the notice of lien along with a notice of exemptions and claim for exemption form in accordance with § 8.01-512.4 . The judgment creditor or attorney for the judgment creditor shall file a certification with the court affirming that he has mailed the judgment debtor these notices. In the event that the judgment creditor fails to comply with the requirements of this subsection, he shall be liable to the judgment debtor for no more than $100 in damages, unless he proves by a preponderance of the evidence that the failure was not willful.
    3. A financial institution served with a valid notice of lien shall provide a written response to the judgment creditor or attorney for the judgment creditor within twenty-one days after being served with such notice of lien indicating the amount of money held by the financial institution pursuant to the notice of lien.

    History. 1997, c. 750; 1999, c. 48; 2010, c. 673.

    The 1999 amendment inserted the second paragraph.

    The 2010 amendments.

    The 2010 amendment by c. 673 inserted subsection A and C designations, and inserted subsection B.

    Law Review.

    For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

    § 8.01-503. Withholding of wages or salary not required by preceding sections unless garnishment process served.

    Nothing contained in §§ 8.01-501 and 8.01-502 shall have the effect of requiring any employer paying wages or salary to an employee to withhold any part of such wages or salary unless and until such employer is duly served with process in garnishment.

    History. Code 1950, § 8-432.1; 1954, c. 379; 1977, c. 617.

    § 8.01-504. Penalty for service of notice of lien when no judgment exists.

    Whoever causes to be served a notice of lien of a writ of fieri facias without there being a judgment against the defendant named therein, shall pay to him the sum of $350, and whoever serves a notice of lien of a writ of fieri facias before the issuance of a writ of fieri facias, or after the return day thereof, or serves or in any way gives a notice of a lien of fieri facias by means other than by service by an officer authorized to serve civil process, shall pay to the named defendant the sum of $350, to be recoverable as damages in an action at law, in addition to whatever damages may be alleged and proven.

    History. Code 1950, § 8-433; 1977, c. 617; 2010, c. 343.

    REVISERS’ NOTE

    Section 8.01-504 is former § 8-433, the last sentence of which has been deleted as unnecessary. The language “causes to be” has been inserted after the word “Whoever” to clarify the intent of the statute.

    Also, the fine has been increased from $50 to $100.

    The 2010 amendments.

    The 2010 amendment by c. 343 twice substituted “$350” for “$100.”

    § 8.01-505. When lien acquired on intangibles under § 8.01-501 ceases.

    The lien acquired under § 8.01-501 on intangibles shall cease whenever the right of the judgment creditor to enforce the judgment by execution or by action, or to extend the right by motion, ceases or is suspended by a forthcoming bond being given and forfeited or by other legal process. Furthermore, as to all such intangibles the lien shall cease upon the expiration of the following periods whichever is the longer: (i) one year from the return day of the execution pursuant to which the lien arose, or (ii) if the intangible is a debt due from, or a claim upon, a third person in favor of the judgment debtor or the estate of such third person, one year from the final determination of the amount owed to the judgment debtor.

    History. Code 1950, § 8-434; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-505 is former § 8-434 which has been rewritten for clarity. No change in substance is intended. The changes made in the section are in accordance with the case law interpreting its meaning and applicability. (See Baer v. Ingram, 99 Va. 200 , 37 S.E. 905 (1901).)

    Cross references.

    As to limitations on enforcement of judgments, see § 8.01-251 .

    As to issuing other executions, see § 8.01-475 .

    As to quashing execution, see § 8.01-477 .

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 36.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    The lien of fieri facias extends to all the personal estate of the judgment debtor which is not capable of being levied on, which includes bonds, notes, stocks, debts of all kinds, including a debt payable in the future and includes all choses in action to which a debtor may be entitled. In re Lamm, 47 Bankr. 364, 1984 U.S. Dist. LEXIS 20373 (E.D. Va. 1984).

    Lien ceases when judgment creditor’s enforcement rights cease. —

    The execution of a writ of fieri facias establishes a lien on intangibles from the time it is delivered to the officer. The lien, once established, only ceases when the right of the judgment creditor to enforce the judgment by execution or by action, or to extend the right by motion, ceases. Further, as to intangibles, the lien shall cease one year from the return date of the execution pursuant to which the lien arose, or where the intangible is a debt due from or a claim upon, a third person in favor of the judgment debtor or the estate of such person, one year from the final determination of the amount owed to the judgment debtor. In re Lamm, 47 Bankr. 364, 1984 U.S. Dist. LEXIS 20373 (E.D. Va. 1984).

    Effect of bankruptcy on one-year period. —

    One-year perfection of lien under this section held not converted into permanent perfection by bankruptcy of debtor. See Pischke v. Murray, 11 Bankr. 913, 1981 Bankr. LEXIS 3534 (Bankr. E.D. Va. 1981).

    If creditor’s lien is extant under state law prior to commencement of bankruptcy, the lien remains viable even if under the terms of the law creating the lien it would expire absent some action of the creditor. For example, the creditor would not be obliged to seek relief from the stay in order to seek a new writ of fieri facias to keep the lien in effect. Thus, the lien of fieri facias remains viable during the pendency of the bankruptcy proceedings. Homeowner's Fin. Corp. v. Pennington, 47 Bankr. 322, 1985 Bankr. LEXIS 6508 (Bankr. E.D. Va. 1985).

    II.Decisions Under Prior Law.

    Editor’s note.

    The lien of a writ of fieri facias continues so long as the judgment can be enforced. Hicks v. Roanoke Brick Co., 94 Va. 741 , 27 S.E. 596 , 1897 Va. LEXIS 134 (1897), overruled, Boisseau v. Bass' Adm'r, 100 Va. 207 , 40 S.E. 647 , 1902 Va. LEXIS 17 (1902); Boisseau v. Bass, 100 Va. 207 , 40 S.E. 647 , 1902 Va. LEXIS 17 (1902).

    Quashing of second execution does not suspend lien of first. —

    A second execution was quashed on a petition alleging that it was issued contrary to an agreement by the creditor before entry of judgment that no execution should issue until a certain time, and was also in disregard of a payment made on the judgment. The first execution was held to be a lien on legacies left to the debtor, and other creditors objected, claiming that the first execution was suspended by virtue of the judgment quashing the second. The agreement not to issue execution being a personal one and there being no mention whatever of the first execution in the proceedings to quash the second, the first was held not suspended under this section. Baer v. Ingram, 99 Va. 200 , 37 S.E. 905 , 1901 Va. LEXIS 29 (1901).

    Death of either debtor or creditor does not affect lien. —

    The lien of a writ of fieri facias upon the debtor’s choses in action, although not asserted in the lifetime of the debtor or creditor is not defeated or impaired by the death of either or both, and this lien may be enforced in a suit for the administration of the assets or by other remedies. Trevillian v. Guerrant, 72 Va. (31 Gratt.) 525, 1879 Va. LEXIS 19 (1879) (see also Frayser v. Richmond & A.R.R., 81 Va. 388 (1886); Allan v. Hoffman, 83 Va. 129 , 2 S.E. 602 (1887)).

    Article 6. Interrogatories.

    § 8.01-506. Proceedings by interrogatories to ascertain estate of debtor; summons; proviso; objections by judgment debtor.

    1. To ascertain the personal estate of a judgment debtor, and to ascertain any real estate, in or out of this Commonwealth, to which the debtor named in a judgment and fieri facias is entitled, upon the application of the execution creditor, the clerk of the court from which such fieri facias issued shall issue a summons against (i) the execution debtor, (ii) any officer of the corporation if such execution debtor is a corporation having an office in this Commonwealth, (iii) any employee of a corporation if such execution debtor is a corporation having an office but no officers in the Commonwealth provided that a copy of the summons shall also be served upon the registered agent of the corporation, or (iv) any debtor to, or bailee of, the execution debtor.
    2. The summons shall require him to appear before the court from which the fieri facias issued or a commissioner of the county or city in which such court is located, or a like court or a commissioner of a county or city contiguous thereto, or upon request of the execution creditor, before a like court or a commissioner of the county or city in which the execution debtor resides, or of a county or city contiguous thereto, to answer such interrogatories as may be propounded to him by the execution creditor or his attorney, or the court, or the commissioner, as the case may be. If the execution creditor requests that the summons require the execution debtor to appear before a like court of the county or city in which the execution debtor resides, or of a county or city contiguous thereto, the case may be filed or docketed in accordance with the requirements of § 8.01-506.2 prior to issuance of the summons.
    3. Provided, however, that as a condition precedent to proceeding under this section, the execution creditor has furnished to the court a certificate setting forth that he has not proceeded against the execution debtor under this section within the six months last preceding the date of such certificate. Except that for good cause shown, the court may, on motion of the execution creditor, issue an order allowing further proceedings before a commissioner by interrogatories during the six-month period. Any judgment creditor who knowingly gives false information upon any such certificate made under this article shall be guilty of a Class 1 misdemeanor. The issuance of a summons that is not served shall not constitute the act of proceeding against an execution debtor for purposes of making the certificate required by this subsection.
    4. The debtor or other person served with such summons shall appear at the time and place mentioned and make answer to such interrogatories. The commissioner shall, at the request of either of the parties, enter in his proceedings and report to the court mentioned in § 8.01-507.1 , any and all objections taken by such debtor against answering such interrogatories, or any or either of them, and if the court afterwards sustains any one or more of such objections, the answers given to such interrogatories as to which objections are sustained shall be held for naught in that or any other case.
    5. Notwithstanding the foregoing provisions of this section, the court from which a writ of fieri facias issued, upon motion by the execution debtor and for good cause shown, shall transfer debtor interrogatory proceedings to a forum more convenient to the execution debtor.

    History. Code 1950, § 8-435; 1952, c. 699; 1968, c. 599; 1977, c. 617; 1978, c. 66; 1979, c. 225; 1985, c. 433; 1987, c. 182; 1991, c. 463; 2005, c. 726; 2009, c. 622.

    REVISERS’ NOTE

    Section 8.01-506 is former § 8-435 with minor language changes. The restriction against commissioners causing process to be served outside or contiguous to the county or city for which they were appointed has been deleted. This change is compatible with the issuance (statewide) of process found in chapter 8, Process. General district courts are also authorized to employ similar procedure to compel a judgment debtor to reveal his assets to the judgment creditor. See § 16.1-103 .

    Cross references.

    As to punishment for Class 1 misdemeanors, see § 18.2-11 .

    The 2005 amendments.

    The 2005 amendment by c. 726 added the last sentence in subsection B.

    The 2009 amendments.

    The 2009 amendment by c. 622 added the last sentence in subsection C.

    Law Review.

    For article, “Body Attachment and Body Execution,” see 17 Wm. & Mary L. Rev. 543 (1976).

    For an article on the need for reform of and a proposed revision of Virginia’s exemption statutes, see 37 Wash. & Lee L. Rev. 127 (1980).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 70.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Construction. —

    Judgment creditor’s reasonable or good-faith belief that a third party may be a debtor to or bailee of the judgment debtor is not sufficient to allow the judgment creditor to summon the third party for debtor’s interrogatories. Aufforth v. Aufforth, 72 Va. App. 617, 851 S.E.2d 77, 2020 Va. App. LEXIS 303 (2020).

    Statute limits the individuals to whom a judgment creditor may summon to debtor’s interrogatories. The language of the statute, “any debtor to, or bailee of, the execution debtor,” does not contain any modifying language that would suggest that a judgment creditor is permitted to seek debtor’s interrogatories of a third party who is suspected, but not known, to be a debtor to or bailee of the judgment debtor. Aufforth v. Aufforth, 72 Va. App. 617, 851 S.E.2d 77, 2020 Va. App. LEXIS 303 (2020).

    Third party summons. —

    Appellant’s factual allegations failed to establish that appellee was a debtor to or a bailee of the debtor husband; the fact that the debtor husband lived in a Florida residence owned by but not the primary residence of his ex-wife, appellee, did not support the conclusion that appellee had lawful possession of physical goods owned by debtor husband, and appellee’s motion to dismiss a summons for interrogatories was properly granted. Aufforth v. Aufforth, 72 Va. App. 617, 851 S.E.2d 77, 2020 Va. App. LEXIS 303 (2020).

    Speculative economic relationship between a judgment debtor and a third party does not fall under any of the enumerated categories of individuals who may be summoned to debtor’s interrogatories. Aufforth v. Aufforth, 72 Va. App. 617, 851 S.E.2d 77, 2020 Va. App. LEXIS 303 (2020).

    This section provides statutory authority for trial court to order judgment debtor to deliver stock certificates in his possession or control, including those in a professional legal corporation, so that his interest could be liquidated according to law. Sa’ad El-Amin v. Adams, No. 0282-94-2 (Ct. of Appeals May 16, 1995).

    Relation to other laws. —

    Creditor who obtained a judgment against two debtors in a Virginia court violated the automatic stay when he appeared in state court for a hearing on a Summons to Answer Interrogatories that was issued pursuant to Va. Code § 8.01-506 after he was informed that the debtors had converted their bankruptcy case to one under Chapter 7 of the Bankruptcy Code, did not inform the state court that the debtors were in Chapter 7 bankruptcy, and did not ask the court to dismiss the summons, and because the violation was willful, the debtors were allowed under 11 U.S.C.S. § 362 to recover attorney’s fees and costs they incurred to defend the summons and wages the female debtor lost when she took time off work to attend court hearings. In re Sheets, No. 12-31723-KLP, 2014 Bankr. LEXIS 4198 (Bankr. E.D. Va. Sept. 29, 2014).

    II.Decisions Under Prior Law.

    Editor’s note.

    Object of section. —

    This section enables the creditor to compel the debtor to surrender his estate and to compel any other person on whom there is a liability by reason of such lien, to discharge such liability. By resorting to these means the creditor is generally able to prevent an evasion of his execution lien. Evans v. Greenhow, 56 Va. (15 Gratt.) 153, 1859 Va. LEXIS 8 (1859).

    This section is by its terms limited to questions the object of which is to disclose the property of the debtor which can be made subject to the execution or judgment by appropriate orders in that proceeding, to which the debtor and creditor are the sole parties, whose rights are directly involved. Thompson v. Commonwealth, 156 Va. 1032 , 159 S.E. 98 , 1931 Va. LEXIS 256 (1931).

    Section 8.01-612 inapplicable to proceeding to ascertain assets of judgment debtor. —

    Section 8.01-612 , providing that a commissioner in chancery could compel attendance of witnesses, was inapplicable to the special proceeding authorized by this section to ascertain the assets of a judgment debtor. Early Used Cars, Inc. v. Province, 218 Va. 605 , 239 S.E.2d 98, 1977 Va. LEXIS 297 (1977).

    § 8.01-506.1. Production of book accounts or other writing compelled.

    In any proceeding under the provisions of § 8.01-506 , a subpoena duces tecum may be issued for a book of accounts or other writing containing material evidence pursuant to Rule 4:9A of the Rules of the Supreme Court. However, notwithstanding the provisions of Rule 4:9A, a subpoena duces tecum issued pursuant to this section may (i) be directed to a party to the case and (ii) be issued by a commissioner and may direct that evidence and any custodians subpoenaed be produced before the commissioner. If the subpoena duces tecum is against a party who is not a resident of the Commonwealth, but who has appeared in the case or been served with process in this Commonwealth, the service may be on his attorney of record.

    The provisions of Rule 4:1 (c) of the Supreme Court as to protective orders shall be applicable to proceedings under this section.

    History. 1978, c. 339; 1986, c. 249; 1993, c. 267.

    Editor’s note.

    In the first paragraph, references to “Rule 4:9” were corrected to read “Rule 4:9A” at the direction of the Virginia Code Commission.

    Law Review.

    For survey of Virginia practice and pleading for the year 1977-1978, see 64 Va. L. Rev. 1501 (1978).

    CASE NOTES

    Procedures not followed. —

    Bankruptcy court had both “related to” and ancillary jurisdiction over debtor’s motion to approve a settlement where distributions under the Chapter 11 came solely from the litigation. However, the court did not approve the settlement because the debtor’s attempt to collect the judgment failed to follow the procedures in § 8.01-466 , and its request for financial and other written documents failed to follow the procedures in § 8.01-506.1 .Wellington Apt., LLC v. Clotworthy, 353 Bankr. 465, 2006 Bankr. LEXIS 2906 (Bankr. E.D. Va. 2006).

    § 8.01-506.2. Proceedings in court of county or city where execution debtor resides.

    When pursuant to subsection B of § 8.01-506 , a summons requires the execution debtor to appear before a court of the county or city in which the execution debtor resides, or of a county or city contiguous thereto, the execution creditor may have the case filed or docketed in that court as follows:

    1. The execution creditor shall file with that court an abstract of the judgment rendered.
    2. The execution creditor shall pay a fee to that court in accordance with the provisions of § 16.1-69.48:2 or subdivision 17 of § 17.1-275 .
    3. After docketing or filing the abstract of judgment and payment of any fees, the court shall issue the summons and any subsequent executions on the filed or docketed judgment, including a subpoena duces tecum pursuant to § 8.01-506.1 , and shall conduct such hearings and enter such orders pursuant to §§ 8.01-507 , 8.01-507.1 , 8.01-508 , 8.01-509 , and 8.01-510 as may be required.
    4. The execution creditor shall file in both courts any releases or satisfactions of judgment.

    History. 2005, c. 726.

    Law Review.

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    § 8.01-507. Conveyance or delivery of property disclosed by interrogatories.

    Any real estate out of this Commonwealth to which it may appear by such answer that the debtor is entitled shall, upon order of the court or commissioner, be forthwith conveyed by him to the officer to whom was delivered such fieri facias, and any money, bank notes, securities, evidences of debt, or other personal estate, tangible or intangible, which it may appear by such answers are in possession of or under the control of the debtor or his debtor or bailee, shall be delivered by him or them, as far as practicable, to such officer, or to some other, or in such manner as may be ordered by the commissioner or court.

    History. Code 1950, § 8-436; 1977, c. 617.

    Cross references.

    As to method of enforcing judgments on realty, see §§ 8.01-458 through 8.01-465 .

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assignments, § 16.

    CASE NOTES

    Applicability. —

    Where a creditor obtained state court orders directing a debtor to turn over future tax refunds to satisfy a judgment debt, the creditor did not have a lien on the future refunds under § 8.01-507 and thus, the debtor’s use of the tax refunds was not conversion of the creditor’s property and did not create a nondischargeable debt under 11 U.S.C.S. § 523(a)(6). Knight v. Eppard, 502 Bankr. 458, 2012 Bankr. LEXIS 6098 (Bankr. W.D. Va. 2012).

    Circuit court erred in granting summary judgment to the judgment creditors and enforcing liens upon the potential 2015 income tax refunds of the debtors because any potential income tax refunds for that tax year were not in possession of or under the control of the debtors so as to be reachable by the lien inasmuch as the debtors had not filed their income tax returns by the return date on the writ of fieri facias. Shifflett v. Latitude Props., 294 Va. 476 , 808 S.E.2d 182, 2017 Va. LEXIS 175 (2017).

    CIRCUIT COURT OPINIONS

    Applicability. —

    Request for a turnover order under § 8.01-507 was denied because the purchaser was neither a debtor nor bailee of the judgment debtor and therefore, plaintiff was not entitled to a turnover order under § 8.01-507 of the assets that the purchaser bought from the debtor. AdvanceMe, Inc. v. Shaker Corp., 79 Va. Cir. 171, 2009 Va. Cir. LEXIS 55 (Alexandria July 24, 2009).

    § 8.01-507.1. Interrogatories, answers, etc., to be returned to court.

    The commissioner shall, at the request of either of the parties, return the interrogatories and answers filed with him, and a report of the proceedings under §§ 8.01-506 and 8.01-507 , to the court in which the judgment is rendered.

    History. Code 1950, § 8-437; 1954, c. 624; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-507.1 is former § 8-437 with no substantial change. However, the return will not be made by the commissioner unless requested by either party. The proviso which restricts the commissioner’s duty to report to the court where only personal property is involved has been deleted.

    § 8.01-508. How debtor may be arrested and held to answer.

    If any person summoned under § 8.01-506 fails to appear and answer, or makes any answers which are deemed by the commissioner or court to be evasive, or if, having answered, fails to make such conveyance and delivery as is required by § 8.01-507 , the commissioner or court shall issue (i) a capias directed to any sheriff requiring such sheriff to take the person in default and deliver him to the commissioner or court so that he may be compelled to make proper answers, or such conveyance or delivery, as the case may be or (ii) a rule to show cause why the person summoned should not appear and make proper answer or make conveyance and delivery. If the person in default fails to answer or convey and deliver he may be incarcerated until he makes such answers or conveyance and delivery. Where a capias is issued, the person in default shall be admitted to bail as provided in Article 1 (§ 19.2-119 et seq.) of Chapter 9 of Title 19.2 if he cannot be brought promptly before the commissioner or court in the county or city to which the capias is returnable. Upon making such answers, or such conveyance and delivery, he shall be discharged by the commissioner or the court. He may also be discharged by the court from whose clerk’s office the capias issued in any case where the court is of the opinion that he was improperly committed or is improperly or unlawfully detained in custody. If the person in default appeals the decision of the commissioner or court, he shall be admitted to bail as provided in Article 1 (§ 19.2-119 et seq.) of Chapter 9 of Title 19.2.

    If the person held for failure to appear and answer interrogatories is detained in a jurisdiction other than that where the summons is issued, the sheriff in the requesting jurisdiction shall have the duty to transport such person to the place where interrogatories are to be taken.

    History. Code 1950, § 8-438; 1977, c. 617; 1983, c. 278; 1985, c. 290; 1986, c. 326; 1999, cc. 829, 846.

    The 1999 amendments.

    The 1999 amendments by cc. 829 and 846 are identical, and substituted “admitted to bail as provided in Article 1 (§ 19.2-119 et seq.) of Chapter 9 of Title 19.2” for “entitled to bail pursuant to § 19.2-120 ” in the third and sixth sentences in the first paragraph.

    Law Review.

    For article, “Body Attachment and Body Execution,” see 17 Wm. & Mary L. Rev. 543 (1976).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arrest, § 1.

    CASE NOTES

    Editor’s note.

    The case cited below was decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    The language of this section is mandatory. Early Used Cars, Inc. v. Province, 218 Va. 605 , 239 S.E.2d 98, 1977 Va. LEXIS 297 (1977).

    Section applies when defendant merely fails to appear. —

    While this section is worded in the conjunctive rather than the disjunctive, the contention that the provisions of this section apply only when a judgment debtor fails to appear and answer, and not when he merely fails to appear, is without merit. Early Used Cars, Inc. v. Province, 218 Va. 605 , 239 S.E.2d 98, 1977 Va. LEXIS 297 (1977).

    This section does not require that notice be given to the debtor that his failure to appear might result in his arrest. Early Used Cars, Inc. v. Province, 218 Va. 605 , 239 S.E.2d 98, 1977 Va. LEXIS 297 (1977).

    Nor does it require that a rule issue requiring the debtor to show cause why he should not be imprisoned. Early Used Cars, Inc. v. Province, 218 Va. 605 , 239 S.E.2d 98, 1977 Va. LEXIS 297 (1977).

    A writ stating, as an alternative not provided in this section, that the debtor could end the proceedings summarily by paying the debt, with interest and costs, in the amount specified, did not make payment a condition for avoiding imprisonment, and although the commissioner had the discretionary power to revise the writ to conform more closely to this section, his refusal to issue the writ at all was error. Early Used Cars, Inc. v. Province, 218 Va. 605 , 239 S.E.2d 98, 1977 Va. LEXIS 297 (1977).

    § 8.01-509. Order for sale and application of debtor’s estate.

    The court to which the commissioner returns his report may make any order it may deem right, as to the sale and proper application of the estate conveyed and delivered under §§ 8.01-506 and 8.01-507 .

    History. Code 1950, § 8-439; 1977, c. 617.

    Cross references.

    As to rule in absence of specific directions by court, see § 8.01-510 .

    § 8.01-510. Sale, collection and disposition of debtor’s estate by officer.

    Real estate, conveyed to an officer under this chapter, shall, unless the court otherwise direct, be sold as other property levied on is required to be sold under § 8.01-492 and be conveyed to the purchaser by the officer. An officer to whom there is delivery under this chapter, when the delivery is of money, bank notes, or any goods or chattels, shall dispose of the same as if levied on by him under a fieri facias; and when the delivery is of evidences of debts, other than such bank notes, may receive payment of such debts within sixty days after such delivery. Any evidence of debt or other security, remaining in his hands at the end of such sixty days, shall be returned by him to the clerk’s office of such court, and collection thereof may be enforced as prescribed by § 8.01-497 . For a failure to make such return, he may be proceeded against as if an express order of the court for such return had been disobeyed.

    History. Code 1950, § 8-440; 1977, c. 617.

    Cross references.

    As to sale of real estate on executions of debts due the Commonwealth, see §§ 8.01-201 et seq.

    As to disposition of money, see §§ 8.01-373 , 8.01-482 , 8.01-499 .

    As to conveyance of property disclosed by interrogatories, see § 8.01-507 .

    Article 7. Garnishment.

    § 8.01-511. Institution of garnishment proceedings.

    1. On a suggestion by the judgment creditor that, by reason of the lien of his writ of fieri facias, there is a liability on any person other than the judgment debtor or that there is in the hands of some person in his capacity as personal representative of some decedent a sum of money to which a judgment debtor is or may be entitled as creditor or distributee of such decedent, upon which sum when determined such writ of fieri facias is a lien, a summons in the form prescribed by § 8.01-512.3 may (i) be sued out of the clerk’s office of the court from which an execution on the judgment is issued so long as the judgment shall remain enforceable as provided in § 8.01-251 , (ii) be sued out of the clerk’s office to which an execution issued thereon has been returned as provided in § 16.1-99 against such person, or (iii) be sued out of the clerk’s office from which an execution issued as provided in § 16.1-278.18 . If the judgment debtor does not reside in the city or county where the judgment was entered, the judgment creditor may have the case filed or docketed in the court of the city or county where the judgment debtor resides and such court may issue an execution on the judgment, provided that the judgment creditor (a) files with the court an abstract of the judgment rendered, (b) pays fees to the court in accordance with § 16.1-69.48:2 or subdivision 17 of § 17.1-275 , and (c) files in both courts any release or satisfaction of judgment. The summons and the notice and claim for exemption form required pursuant to § 8.01-512.4 shall be served on the garnishee, and shall be served on the judgment debtor promptly after service on the garnishee. Service on the judgment debtor and the garnishee shall be made pursuant to subdivision 1 or 2 of § 8.01-296 . When making an application for garnishment, the judgment creditor shall set forth on the suggestion for summons in garnishment the last known address of the judgment debtor, and shall furnish the clerk, if service is to be made by the sheriff, or shall furnish any other person making service with an envelope, with first-class postage attached, addressed to such address. A copy of the summons and the notice and claim for exemptions form required under § 8.01-512.4 shall be sent by the clerk to the sheriff or provided by the judgment creditor to the person making service, with the process to be served. Promptly after service on the garnishee, the person making service shall mail such envelope by first-class mail to the judgment debtor at his last known address. If the person making service is unable to serve the judgment debtor pursuant to subdivision 1 of § 8.01-296 , such mailing shall satisfy the mailing requirements of subdivision 2 b of § 8.01-296. The person making service shall note on his return the date of such mailing which, with the notation “copy mailed to judgment debtor,” shall be sufficient proof of the mailing of such envelope with the required copy of the summons and the notice and claim for exemption form with no examination of such contents being required nor separate certification by the clerk or judgment creditor that the appropriate documents have been so inserted. If the person making service is unable to serve the judgment debtor pursuant to subdivision 1 or 2 of § 8.01-296, such mailing shall constitute service of process on the judgment debtor. The judgment creditor shall furnish the social security number of the judgment debtor to the clerk, except as hereinafter provided.
    2. The judgment creditor may require the judgment debtor to furnish his correct social security number by the use of interrogatories. However, use of such interrogatories shall not be a required condition of a judgment creditor’s diligent good faith effort to secure the judgment debtor’s social security number. Such remedy shall be in addition to all other lawful remedies available to the judgment creditor. Upon a representation by the judgment creditor, or his agent or attorney, that he has made a diligent good faith effort to secure the social security number of the judgment debtor and has been unable to do so, the garnishment shall be issued without the necessity for such number.
    3. Except as provided herein, no summons shall be issued pursuant to this section for the garnishment of wages, salaries, commissions, or other earnings unless it: (i) is in the form prescribed by § 8.01-512.3 ; (ii) is directed to only one garnishee for the garnishment of only one judgment debtor; (iii) contains both the “TOTAL BALANCE DUE” and the social security number of the judgment debtor in the proper places as provided on the summons; and (iv) specifies that it is a garnishment against (a) the judgment debtor’s wages, salary, or other compensation or (b) some other debt due or property of the judgment debtor. The garnishee shall not be liable to the judgment creditor for any property not specified in the summons as provided in (iv) above. Upon receipt of a summons not in compliance with this provision, the garnishee shall file a written answer to that effect and shall have no liability to the judgment creditor, such summons being void upon transmission of the answer.
    4. The judgment creditor shall, in the suggestion, specify the amount of interest, if any, that is claimed to be due upon the judgment, calculated to the return day of the summons. He shall also set out such credits as may have been made upon the judgment.All costs incurred by the judgment creditor after entry of the judgment, in aid of execution of the judgment and paid to a clerk of court, sheriff, or process server are chargeable against the judgment debtor, unless such costs are chargeable against the judgment creditor pursuant to § 8.01-475 . Regardless of the actual amount of the fee paid by the judgment creditor, the fee for a process server chargeable against the judgment debtor shall not exceed the fee authorized for service by the sheriff. All such previous costs chargeable against the judgment debtor may be included by the judgment creditor as judgment costs in the garnishment summons form prescribed in § 8.01-512.3 . This paragraph shall not be construed to limit any cost assessed by a court as part of the judgment.
    5. In addition, the suggestion shall contain an allegation that:
      1. The summons is based upon a judgment upon which a prior summons has been issued but not fully satisfied; or
      2. No summons has been issued upon his suggestion against the same judgment debtor within a period of 18 months, other than under the provisions of subdivision 1; or
      3. The summons is based upon a judgment granted against a debtor upon a debt due or made for necessary food, rent or shelter, public utilities including telephone service, drugs, or medical care supplied the debtor by the judgment creditor or to one of his lawful dependents, and that it was not for luxuries or nonessentials; or
      4. The summons is based upon a judgment for a debt due the judgment creditor to refinance a lawful loan made by an authorized lending institution; or
      5. The summons is based upon a judgment on an obligation incurred as an endorser or comaker upon a lawful note; or
      6. The summons is based upon a judgment for a debt or debts reaffirmed after bankruptcy.
    6. Any judgment creditor who knowingly gives false information upon any such suggestion or certificate made under this chapter shall be guilty of a Class 1 misdemeanor.

    History. Code 1950, § 8-441; 1960, c. 502; 1966, c. 212; 1972, c. 104; 1976, c. 659; 1977, cc. 454, 617; 1978, cc. 321, 506; 1979, cc. 242, 345; 1980, c. 537; 1983, cc. 399, 468; 1984, c. 1; 1985, c. 524; 1991, c. 534; 1996, cc. 501, 608; 2006, c. 55; 2012, cc. 127, 129, 251, 409.

    REVISERS’ NOTE

    Section 8.01-511 is former § 8-441. Notice to the judgment debtor is still required, but such notice may be given by certified mail sent by the clerk pursuant to affidavit of the judgment creditor stating the last known post-office address of the judgment debtor. Notice by publication is no longer permitted.

    Cross references.

    As to garnishment of joint accounts and trust accounts, see § 6.2-606 .

    As to lien on property not capable of being levied on, see §§ 8.01-501 et seq.

    As to proceedings by interrogatories, see §§ 8.01-506 through 8.01-510 .

    As to garnishment or execution upon wages and salaries of State, city, town and county officials and employees, see §§ 8.01-522 , 8.01-524 , and 8.01-525 .

    As to punishment for Class 1 misdemeanor, see § 18.2-11 .

    As to exemption of unemployment benefits from garnishment generally and procedure where funds claimed to be exempt have been deposited with financial institution, etc., see § 60.2-600 .

    As to exemption of workers’ compensation funds from garnishment generally and procedure where funds claimed to be exempt have been deposited with financial institution, etc., see § 65.2-531 .

    Editor’s note.

    Acts 1977, c. 454, amended former § 8-441, corresponding to this section. Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, that amendment was deemed to have amended this section.

    The 2006 amendments.

    The 2006 amendment by c. 55, in the third paragraph, added clause (iv) and the sentence following clause (iv), and made a related change; and made a stylistic change in subdivision 2.

    The 2012 amendments.

    The 2012 amendments by cc. 127 and 409 are identical, and added the sixth paragraph (now the second paragraph of subsection D).

    The 2012 amendments by cc. 129 and 251 are identical, and designated the existing provisions of the section as subsections A through F; inserted the second sentence in subsection A; added the last sentence in subsection B; in subsection C, substituted “Except as provided herein” for “Except as hereinafter provided” at the beginning of the first paragraph and deleted the former fourth and sixth paragraphs.

    Law Review.

    For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

    For article on the need for reform of and a proposed revision of Virginia’s exemption statutes, see 37 Wash. & Lee L. Rev. 127 (1980).

    For note on bank’s right of setoff in Virginia, see 41 Wash. & Lee L. Rev. 1603 (1984).

    For comment “Adequate Protection — The Equitable Yardstick of Chapter 11,” see 22 U. Rich. L. Rev. 455 (1988).

    For survey of creditor’s rights, see 22 U. Rich. L. Rev. 517 (1988).

    For note, “Untangling the Safety Net: Protecting Federal Benefits from Freezes, Fees, and Garnishment,” see 66 Wash. & Lee L. Rev. 371 (2009).

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 87, 88.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Garnishment does not create lien. —

    A garnishment summons does not create a lien itself, but, instead, is a means of enforcing the lien of an execution placed in the hands of an officer to be levied. Network Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759 , 529 S.E.2d 80, 2000 Va. LEXIS 75 (2000).

    Garnishment is the process by which a judgment creditor enforces the lien of his execution against a debt or property due his judgment debtor in the hands of a third person, garnishee. In re Lamm, 47 Bankr. 364, 1984 U.S. Dist. LEXIS 20373 (E.D. Va. 1984).

    Lien on funds enforceable when service of garnishment summons complete. —

    Circuit court erred in ordering payment to a judgment creditor of the amount remaining in a judgment debtor’s account on the date a garnishee answered the garnishment summons because any funds that reached the account were funds the debtor was entitled to and were subject to garnishment; the garnishee was a bank and third party debtor since it held funds the debtor was entitled to in its account, and the lien on the funds became enforceable against it when the garnishment summons was served. PS Bus., L.P. v. Deutsch & Gilden, Inc., 287 Va. 410 , 758 S.E.2d 508, 2014 Va. LEXIS 62 (2014).

    Under Virginia law, a garnishment proceeding is a separate proceeding in which the judgment creditor enforces the lien of his execution against property or contractual rights of the judgment debtor which are in the hands of a third person, the garnishee. United States ex rel. Global Bldg. Supply, Inc. v. Harkins Bldrs., Inc., 45 F.3d 830, 1995 U.S. App. LEXIS 1443 (4th Cir. 1995).

    Statute must be strictly satisfied. —

    Garnishment, like other lien enforcement remedies authorizing seizure of property, is a creature of statute unknown to the common law and hence the provisions of the statute must be strictly satisfied. Network Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759 , 529 S.E.2d 80, 2000 Va. LEXIS 75 (2000).

    Debts of garnishee subject to § 8.01-501 . —

    Construing this section and § 8.01-512.3 together against the background of § 8.01-501 , a garnishment subjects to the execution lien of § 8.01-501 , not only those debts already due the judgment debtor when the summons in garnishment is served upon the garnishee, but also any indebtedness of the garnishee to the judgment debtor which arises between the date of service of such summons on the garnishee and the return date of the summons. Virginia Nat'l Bank v. Blofeld, 234 Va. 395 , 362 S.E.2d 692, 4 Va. Law Rep. 1230, 1987 Va. LEXIS 269 (1987).

    Liability defined. —

    A “liability,” that may be subject to garnishment under this section means a legal obligation, enforceable by civil remedy, a financial or pecuniary obligation, or a debt. Network Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759 , 529 S.E.2d 80, 2000 Va. LEXIS 75 (2000).

    Contract for services not subject to garnishment. —

    A contract for services is not “a liability” as that term is used in this section and hence is not subject to garnishment. Network Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759 , 529 S.E.2d 80, 2000 Va. LEXIS 75 (2000).

    Internet domain names not subject to garnishment. —

    Whatever contractual rights a judgment debtor has in an internet domain name, those rights do not exist separate and apart from the registrar’s services that make the domain name an operational internet address and, since a domain name registration is the product of a contract for services between the registrar and the registrant, it is not subject to garnishment. Network Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759 , 529 S.E.2d 80, 2000 Va. LEXIS 75 (2000).

    Wages withheld but not paid prior to bankruptcy. —

    Chapter 7 debtor had a property interest in wages her employer, the City of Alexandria, Virginia, withheld from her pay pursuant to § 8.01-511 because a state court had not issued an order requiring the city to pay the wages to the creditor before the debtor declared bankruptcy, and she was entitled under 11 U.S.C.S. § 522(f) to avoid a lien the creditor placed on her wages and to recover wages the city paid the creditor after she declared bankruptcy. The court also awarded the debtor $1,500 in attorney’s fees, pursuant to 11 U.S.C.S. § 362(k)(1), because the creditor violated the automatic stay when it obtained an order from the state court after the debtor declared bankruptcy, which required the city to turn over wages it was holding. Brugueras v. Tidewater Fin. Co. (In re Brugueras), No. 11-17803-BFK, No. 12-01073-BFK, 2012 Bankr. LEXIS 5638 (Bankr. E.D. Va. Dec. 4, 2012).

    Timely notice requirements of due process. —

    In order to meet the timely notice requirements of due process, the creditor should be required to provide the debtor with notice simultaneously with or within a reasonable time after the garnishment. Harris v. Bailey, 574 F. Supp. 966, 1983 U.S. Dist. LEXIS 11710 (W.D. Va. 1983), disapproved, Reigh v. Schleigh, 784 F.2d 1191, 1986 U.S. App. LEXIS 22689 (4th Cir. 1986).

    Due process mandates hearing within reasonable time. —

    Along with timely and adequate notice, due process mandates a hearing within a meaningful time. Harris v. Bailey, 574 F. Supp. 966, 1983 U.S. Dist. LEXIS 11710 (W.D. Va. 1983), disapproved, Reigh v. Schleigh, 784 F.2d 1191, 1986 U.S. App. LEXIS 22689 (4th Cir. 1986).

    Garnishment is regarded, not as a process of execution to enforce a judgment, but as an independent suit by the judgment-debtor in the name of the judgment-creditor against the garnishee. Butler v. Butler, 219 Va. 164 , 247 S.E.2d 353, 1978 Va. LEXIS 172 (1978).

    Issue adjudicated. —

    Ordinarily, the only adjudicable issue in a garnishment is whether the garnishee is liable to the judgment-debtor, and if so, the amount due. Butler v. Butler, 219 Va. 164 , 247 S.E.2d 353, 1978 Va. LEXIS 172 (1978).

    Judgment creditor’s rights no greater than debtor’s. —

    A proceeding in garnishment is substantially an action at law by the judgment debtor in the name of the judgment creditor against the garnishee, and therefore the judgment creditor stands upon no higher ground than the judgment debtor and can acquire no greater right than such debtor possesses. Network Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759 , 529 S.E.2d 80, 2000 Va. LEXIS 75 (2000).

    Circuit court did not err in ordering the return to a corporation of the amount drawn from its bank account because the judgment debtor, standing on no higher ground than the judgment debtor, had no right to possession of the funds in the account and could not subject those funds to garnishment. PS Bus., L.P. v. Deutsch & Gilden, Inc., 287 Va. 410 , 758 S.E.2d 508, 2014 Va. LEXIS 62 (2014).

    The garnishment statute plainly contemplates only a personal judgment against the garnishee. Butler v. Butler, 219 Va. 164 , 247 S.E.2d 353, 1978 Va. LEXIS 172 (1978).

    Notice of exemptions from garnishment. —

    The summons served on the debtor is required to contain a list of those essential federal and state exemptions that provide the basic necessities of life for someone in the position of a widow whose social security benefits are her sole source of income. The social security exemption certainly should be included; such benefits provide the bare necessities for many in the society. Beyond this list of absolutely essential exemptions such as social security benefits, the debtor should be informed simply that other possible exemptions from garnishment exist under the law. Harris v. Bailey, 574 F. Supp. 966, 1983 U.S. Dist. LEXIS 11710 (W.D. Va. 1983), disapproved, Reigh v. Schleigh, 784 F.2d 1191, 1986 U.S. App. LEXIS 22689 (4th Cir. 1986).

    The fieri facias issued on the judgment became a lien when the garnishment summons was issued and served. In re Lamm, 47 Bankr. 364, 1984 U.S. Dist. LEXIS 20373 (E.D. Va. 1984).

    The lien is created when execution is delivered to the officer. The lien exists from that date. The issuance and service of the garnishment is the means of enforcing the lien. In re Lamm, 47 Bankr. 364, 1984 U.S. Dist. LEXIS 20373 (E.D. Va. 1984).

    Summons in garnishment under Virginia statute is warning to garnishee not to pay the money or deliver the property of judgment debtor in his hands, upon penalty that if he does, he may subject himself to personal judgment. In re Lamm, 47 Bankr. 364, 1984 U.S. Dist. LEXIS 20373 (E.D. Va. 1984).

    There being a lien against the funds in the hands of the garnishee, he is merely a stakeholder, and may escape all liability by surrendering the funds to the court for its proper disposition. The garnishment summons itself does not create a lien, but the lien is created by the fieri facias, and dates from the date of the delivery of the fieri facias to the officer. The garnishment is the notice of the lien. For the purposes of bankruptcy, the judgment lien need not be absolute, unequivocal or irrevocable, but need only be superior to the rights of a subsequent judgment lien creditor, and in Virginia, the lien by writ of fieri facias is such a lien. In re Lamm, 47 Bankr. 364, 1984 U.S. Dist. LEXIS 20373 (E.D. Va. 1984).

    Social security payments are exempt from garnishment under 42 U.S.C. § 407. A garnishment procedure which permitted a judgment creditor to freeze a social security recipient’s bank account without regard to whether it contained social security funds would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress and consequently be invalid under the supremacy clause, U.S. Const., Art. VI, cl. 2. Harris v. Bailey, 574 F. Supp. 966, 1983 U.S. Dist. LEXIS 11710 (W.D. Va. 1983), disapproved, Reigh v. Schleigh, 784 F.2d 1191, 1986 U.S. App. LEXIS 22689 (4th Cir. 1986).

    Response to summons. —

    The garnishee is required to respond to the garnishment summons by confessing the amount owed to the judgment debtor or by denying it has any property of the judgment debtor. It may also pay such monies into court as it confesses. If liability or the amount confessed is disputed, the court determines whether the garnishee holds property belonging to the judgment debtor and the property’s value. United States ex rel. Global Bldg. Supply, Inc. v. Harkins Bldrs., Inc., 45 F.3d 830, 1995 U.S. App. LEXIS 1443 (4th Cir. 1995).

    Garnishee not to pay judgment debtor directly. —

    The summons issued in a garnishment proceeding warns the garnishee not to pay the judgment debtor’s money to the judgment debtor, with the sanction that if the garnishee were to do so, it would become personally liable for the amount paid. United States ex rel. Global Bldg. Supply, Inc. v. Harkins Bldrs., Inc., 45 F.3d 830, 1995 U.S. App. LEXIS 1443 (4th Cir. 1995).

    Judgment creditor not in shoes of judgment debtor. —

    By act of garnishment, the judgment creditor does not replace the judgment debtor as owner of the property, but merely has the right to hold the garnishee liable for the value of that property. So too in the instant case, where the property is in the form of a contract right, the judgment creditor does not step into the shoes of the judgment debtor and become a party to the contract, but merely has the right to hold the garnishee liable for the value of that contract right. United States ex rel. Global Bldg. Supply, Inc. v. Harkins Bldrs., Inc., 45 F.3d 830, 1995 U.S. App. LEXIS 1443 (4th Cir. 1995).

    No provision for direct transfer of debtor’s property to creditor. —

    There appears to be no statutory provision for the direct transfer of the judgment debtor’s property to the judgment creditor, and where a third party controls the property subject to the writ, a judgment creditor typically must follow garnishment procedures. Dorer v. Arel, 60 F. Supp. 2d 558, 1999 U.S. Dist. LEXIS 13558 (E.D. Va. 1999).

    The garnishee can escape all garnishment liability by surrendering the funds to the court for its proper disposition. United States ex rel. Global Bldg. Supply, Inc. v. Harkins Bldrs., Inc., 45 F.3d 830, 1995 U.S. App. LEXIS 1443 (4th Cir. 1995).

    Motion to quash is not adequate relief for invalid garnishment summons. —

    A judgment debtor in the position of a widow whose social security benefits are her sole source of income must have an opportunity to assert and adjudicate claims of exemption as promptly as possible after the garnishment. The relief available to the debtor by way of a motion to quash the garnishment summons is not adequate. A few days delay in the adjudication of the exemption claim of a debtor in such a position may well cause severe harm. Too much uncertainty is inherent in such relief. Harris v. Bailey, 574 F. Supp. 966, 1983 U.S. Dist. LEXIS 11710 (W.D. Va. 1983), disapproved, Reigh v. Schleigh, 784 F.2d 1191, 1986 U.S. App. LEXIS 22689 (4th Cir. 1986).

    Joinder of third-party claimant. —

    The trial court did not err in a garnishment proceeding by joining a third-party claimant and by adjudicating in that proceeding the validity of the third-party’s claim to the fund which was the subject of the garnishment. Holston Int'l, Inc. v. Coulthard, 241 Va. 219 , 401 S.E.2d 865, 7 Va. Law Rep. 1630, 1991 Va. LEXIS 40 (1991).

    II.Decisions Under Prior Law.

    Editor’s note.

    Garnishment is a proceeding which exists only by virtue of statutory enactment. Under this article, garnishment is the process by which a judgment creditor enforces the lien of his execution against any debt or property due his judgment debtor in the hands of a third person, garnishee. Lynch v. Johnson, 196 Va. 516 , 84 S.E.2d 419, 1954 Va. LEXIS 247 (1954).

    Garnishment and attachment by levy distinguished. —

    The proceeding of garnishment is in many respects similar to attachment by levy, but differs in at least one particular, that is, the creditor does not acquire a clear and full lien upon the specific property in the garnishee’s possession, but only such a lien as gives him the right to hold the garnishee personally liable for it or its value. Lynch v. Johnson, 196 Va. 516 , 84 S.E.2d 419, 1954 Va. LEXIS 247 (1954).

    A summons of garnishment under our statutes is a warning to the garnishee not to pay the money or deliver the property of the judgment debtor in his hands, upon penalty that if he does he may subject himself to personal judgment. Lynch v. Johnson, 196 Va. 516 , 84 S.E.2d 419, 1954 Va. LEXIS 247 (1954).

    When judgments become liens. —

    A creditor’s judgments do not become liens on a third party’s indebtedness to the debtor until the garnishment summonses are issued. First Nat'l Bank v. Norfolk & W. Ry., 327 F. Supp. 196, 1971 U.S. Dist. LEXIS 13219 (E.D. Va. 1971).

    The remedy afforded by garnishment was designed simply to enforce the lien of execution. —

    The lien itself is as complete and perfect without it and with it. It continues in full force, although the creditor should never resort to this remedy. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    And garnishment summons itself creates no lien. —

    A summons in garnishment creates no lien. It is a means of enforcing the lien of an execution placed in the hands of an officer to be levied. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    The garnishment summons itself cannot fix a lien on the particular property held by the garnishee. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    The writ of garnishment cannot create a lien where a judgment debtor had no right to the property in the first place. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    Garnishment merely affords the judgment creditor a remedy against another party, thus further making sure that the right will be effectively enforced. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    Section does not operate when garnishee has title. —

    Personal property fraudulently transferred to a wife by her husband cannot be reached by a summons in garnishment on the wife upon an execution against her husband. The garnishment statute does not contemplate or operate upon an estate in the possession of the garnishee to which he has title. Section 8.01-497 furnishes an efficient remedy, by action at law or suit in equity, for reaching such property; or the execution creditor of the husband may levy on the property as that of the husband, and, upon proper proceedings had, have it sold, or the title thereto tried. Freitas v. Griffith, 112 Va. 343 , 71 S.E. 531 , 1911 Va. LEXIS 90 (1911).

    Property subject to garnishment. —

    An order from a person to whom money is due or to become due, on the person in whose hands or under whose control it may be, to pay to the payee, constitutes an equitable assignment, and the fund cannot be garnished at suit of the assignor’s creditors. Mack Mfg. Co. v. Smoot & Co., 102 Va. 724 , 47 S.E. 859 , 1904 Va. LEXIS 119 (1904).

    Claim of judgment debtor against garnishee must be certain and absolute. —

    In a garnishment proceeding the claim of the judgment debtor against the garnishee must be certain and absolute, because our statutes do not authorize a court of law, in a mere side issue growing out of a garnishment proceeding, to exercise the intricate and complicated duties of a chancellor. Lynch v. Johnson, 196 Va. 516 , 84 S.E.2d 419, 1954 Va. LEXIS 247 (1954).

    Judgment creditor can acquire no greater right against garnishee than debtor himself possesses. —

    A proceeding in garnishment is substantially an action at law by the judgment debtor in the name of the judgment creditor against the garnishee, and therefore the judgment creditor stands upon no higher ground than the judgment debtor and can acquire no greater right than such debtor himself possesses. Lynch v. Johnson, 196 Va. 516 , 84 S.E.2d 419, 1954 Va. LEXIS 247 (1954).

    No liability on insurance company to judgment creditor, where debtor’s policy contained no action clause. —

    Where a judgment against a defendant for damages caused by an automobile accident was returned “no effects,” the judgment creditor could not collect from an insurance company by garnishment under this section on an alias execution, where the insurance contract contained the usual “no action clause.” Combs v. Hunt, 140 Va. 627 , 125 S.E. 661 , 1924 Va. LEXIS 203 (1924).

    Setoff proper. —

    The note of an employee payable to a partnership is a valid setoff against any claim against it for his services, whether asserted by the employee or his creditors. Beale v. Hall, 97 Va. 383 , 34 S.E. 53 , 1899 Va. LEXIS 51 (1899).

    CIRCUIT COURT OPINIONS

    Bond requirement. —

    Trial court found that in a garnishment case, where the prospective intervenor filed a motion to intervene to obtain the funds that the bank had tendered to the court from the judgment debtor’s account, after the judgment creditor had served a garnishment against the bank and the prospective intervenor claimed that the funds did not belong to the judgment debtor but belonged to the prospective intervenor, the prospective intervenor was required to post a suspending bond in order to intervene; none of the statutes relevant or possibly relevant to the garnishment action made the posting of such a bond a prerequisite to filing a proceeding in court claiming ownership of money subject to a garnishment and the judgment creditor could not show that it would be prejudiced by the prospective intervenor’s failure to post one. Rapid Indus. Plastics Co. v. Am. Plastics, L.L.C., 70 Va. Cir. 267, 2006 Va. Cir. LEXIS 166 (Richmond Mar. 3, 2006).

    Partial final judgment. —

    In a multi-party case, absent an exception, any order that adjudicates fewer than all the claims against all the parties must meet the partial final judgment requirements of the rule before an execution and garnishment summons will issue properly. PNC Bank, N.A. v. Yen, 92 Va. Cir. 331, 2016 Va. Cir. LEXIS 28 (Fairfax County Feb. 26, 2016).

    Garnishee not liable. —

    Garnishee was not liable because the evidence supported the accuracy of its garnishment answer that it held or owed no funds to a judgment debtor; the garnishees terminated a subcontract once it became aware of the judgment against the debtor. Sherman v. Southern Grading,Inc., 101 Va. Cir. 122, 2019 Va. Cir. LEXIS 15 (Chesapeake Jan. 29, 2019).

    Motion granted. —

    Because the stay as to defendant one was interlocutory, the execution could only issue if the order rendered a partial final judgment against defendant two, but the order was not expressly labeled a partial final judgment and did not contain express findings of severability; thus, the stay as to defendant one and the personal judgment against defendant two were both interlocutory, and the interlocutory judgment entered against defendant two could not support the execution and garnishment, the motions to quash were granted, and the court retained its jurisdiction over the entire case. PNC Bank, N.A. v. Yen, 92 Va. Cir. 331, 2016 Va. Cir. LEXIS 28 (Fairfax County Feb. 26, 2016).

    OPINIONS OF THE ATTORNEY GENERAL

    Order of service. Section 8.01-511 does not require circuit court clerks to ensure that the garnishee is served before judgment debtor when the two parties are located in different jurisdictions, and the same applies to general district court clerks as well. See opinion of Attorney General to The Honorable Chan R. Bryant, Albemarle County Sheriff, 20-058, (3/19/21).

    Section 8.01-511 does not require that sheriff ensure that a garnishee is served before judgment debtor when the parties are located in different jurisdictions. See opinion of Attorney General to The Honorable Chan R. Bryant, Albemarle County Sheriff, 20-058, (3/19/21)..

    Service of summons on garnishee not required. —

    This section does not impose a duty on the clerk of a circuit court to ensure that a garnishee is served with a garnishment summons before it is served on the judgment debtor. See opinion of Attorney General to The Honorable Edward Semonian, Clerk, Circuit Court of the City of Alexandria, 02-142 (2/13/03).

    Levy by sheriff against personal property when serving writs of fieri facias. —

    Writs of fieri facias, debtor interrogatories and garnishments are distinct, but related proceedings, so that, although sheriff or other executing officer may be required to levy on the tangible personal property of a judgment debtor when executing a writ of fieri facias, no such requirement is imposed when serving a Summons for Interrogatories or Garnishment Summons. See opinion of Attorney General to The Honorable L.J. Ayers, III, Sheriff for Amherst County, 10-075, (02/04/11).

    § 8.01-511.1. Garnishee inability to determine whether it holds property of judgment debtor.

    If a summons for the garnishment of property other than wages, salaries, commissions or other earnings does not contain sufficient or accurate information to enable the garnishee to reasonably identify the judgment debtor, the garnishee shall have no liability to the judgment creditor for failing to deliver the judgment debtor’s property in response to the summons. If the summons contains either the social security number or taxpayer identification number of the judgment debtor as it appears in the records of the garnishee, or the name and address of the judgment debtor as they appear in the records of the garnishee, the summons shall be deemed to contain information sufficient to enable the garnishee to reasonably identify the judgment debtor.

    If the summons contains sufficient or accurate information to enable the garnishee to reasonably identify the judgment debtor, the garnishee shall (i) answer to the summoning court and further state what the garnishee’s records show as the last known address for the judgment debtor and any other information the garnishee deems relevant and (ii) send to the judgment debtor at the last known address a copy of its answer to the court.

    No garnishee or creditor who proceeds under the terms of this statute in good faith shall be liable to any person therefor.

    History. 2002, c. 688.

    §§ 8.01-512, 8.01-512.1. Repealed by Acts 1983, c. 399.

    Cross references.

    For present provisions as to the form of a garnishment summons, see § 8.01-512.3 .

    § 8.01-512.2. Fee for garnishee-employers.

    Garnishee-employers may charge and collect a fee of up to ten dollars from a judgment-debtor employee on account of such employers’ expense in processing each garnishment summons served on such employers on account of the judgment-debtor employee.

    History. 1980, c. 537; 1994, c. 664.

    § 8.01-512.3. Form of garnishment summons.

    Any garnishment issued pursuant to § 8.01-511 shall be in the following form:

    1. Front side of summons:

      GARNISHMENT SUMMONS

      (Court Name)

      (Name, address and telephone number of judgment creditor except that when the judgment creditor’s attorney’s name, address and telephone number appear on the summons, only the creditor’s name shall be used.)

      (Name, address and telephone number of judgment creditor’s attorney)

      (Name, street address and social security number of judgment debtor)

      (Name and street address of garnishee)

      Click to view

      Date of Judgment

      TO ANY AUTHORIZED OFFICER: You are hereby commanded to serve this summons on the judgment debtor and the garnishee.

      TO THE GARNISHEE: You are hereby commanded to

      1. File a written answer with this court, or
      2. Deliver payment to this court, or
      3. Appear before this court on the return date and time shown on this summons to answer the Suggestion for Summons in Garnishment of the judgment creditor that, by reason of the lien of writ of fieri facias, there is a liability as shown in the statement upon the garnishee.

        As garnishee, you shall withhold from the judgment debtor any sums of money to which the judgment debtor is or may be entitled from you during the period between the date of service of this summons on you and the date for your appearance in court, subject to the following limitations:

        If a garnishment summons is served on an employer having 1,000 or more employees, then money to which the judgment debtor is or may be entitled from his or her employer shall be considered those wages, salaries, commissions, or other earnings which, following service on the garnishee-employer, are determined and are payable to the judgment debtor under the garnishee-employer’s normal payroll procedure with a reasonable time allowance for making a timely return by mail to this court.

        Click to view

        Date of delivery of writ of fieri facias to sheriff if different from date of issuance of this summons.

    2. A plain language interpretation of § 34-29 shall appear on the reverse side of the summons as follows:“The following statement is not the law but is an interpretation of the law which is intended to assist those who must respond to this garnishment. You may rely on this only for general guidance because the law itself is the final word. (Read the law, § 34-29 of the Code of Virginia, for a full explanation. A copy of § 34-29 is available at the clerk’s office. If you do not understand the law, call a lawyer for help.)An employer may take as much as 25 percent of an employee’s disposable earnings to satisfy this garnishment. But if an employee makes the minimum wage or less for his week’s earnings, the employee will ordinarily get to keep 40 times the minimum hourly wage.”But an employer may withhold a different amount of money from that above if:
      1. The employee must pay child support or spousal support and was ordered to do so by a court procedure or other legal procedure. No more than 65 percent of an employee’s earnings may be withheld for support;
      2. Money is withheld by order of a bankruptcy court; or
      3. Money is withheld for a tax debt.“Disposable earnings” means the money an employee makes after taxes and after other amounts required by law to be withheld are satisfied. Earnings can be salary, hourly wages, commissions, bonuses, or otherwise, whether paid directly to the employee or not. After those earnings are in the bank for 30 days, they are not considered earnings any more.If an employee tries to transfer, assign, or in any way give his earnings to another person to avoid the garnishment, it will not be legal; earnings are still earnings.An employee cannot be fired because he is garnished for one debt.Financial institutions that receive an employee’s paycheck by direct deposit do not have to determine what part of a person’s earnings can be garnished.

    Hearing Date and Time This is a garnishment against (check only one of the designations below): [ ] wages, salary, or other [ ] some other debt due or property compensation. of the judgment debtor. MAXIMUM PORTION OF STATEMENT DISPOSABLE EARNINGS SUBJECT TO GARNISHMENT [ ] Support Judgment Principal $ [ ] 50% [ ] 55% [ ] 60% [ ] 65% Credits $ (if not specified, then 50%) Interest $ [ ] state taxes, 100% Judgment Costs $ If none of the above is checked, Attorney’s Fees $ then applies. Garnishment Costs $ § 34-29 (a) TOTAL BALANCE DUE $ The garnishee shall rely on this amount.

    (1) The maximum amount which may be garnished is the “TOTAL BALANCE DUE” as shown on this summons.

    (2) If the sums of money being garnished are earnings of the judgment debtor, then the provision of “MAXIMUM PORTION OF DISPOSABLE EARNINGS SUBJECT TO GARNISHMENT” shall apply.

    Date of Issuance of Summons Clerk

    History. 1983, c. 399; 1994, c. 40; 1995, c. 379; 1996, c. 1051; 2006, c. 55; 2017, cc. 36, 143.

    Cross references.

    As to limitations of this section applying to the use of administrative offset in the recovery of certain improper payments to state employees, see § 2.2-804.

    Editor’s note.

    The plain language interpretation of § 34-29 set out in subsection (b) of this section does not reflect changes made by Acts 1996, c. 330 to current subdivision (d) (1) of § 34-29 . That act inserted “payments to an independent contractor” in the definition of “earnings,” and deleted “provided, that in no event shall funds that have been deposited by or for an individual for more than thirty days be considered earnings” from that definition. While Acts 1996, c. 330 eliminated language which excepted “funds that have been deposited by or for an individual for more than thirty days” from the term “earnings” under the plain language interpretation in § 34-29, the term “disposable earnings” as used in the form provided for in this section and as defined in subsection (b) thereof does not reflect the change made by Acts 1996, c. 330 to the substantive law in § 34-29.

    Acts 2017, cc. 36 and 143, cl. 2 provides: “That the Executive Secretary of the Supreme Court of Virginia shall update the form of garnishment summons in accordance with this act and subdivision (a) (2) of § 34-29 of the Code of Virginia.”

    The 2006 amendments.

    The 2006 amendment by c. 55, in the form in subsection A, added the language following “....Hearing Date and Time” and preceding “MAXIMUM PORTION OF.”

    The 2017 amendments.

    The 2017 amendments by cc. 36 and 143 are identical, and substituted “40 times” for “30 times” in the second paragraph following the introductory language of subdivision (b).

    Law Review.

    As to scope of assets subject to lien, see 22 U. Rich. L. Rev. 517 (1988).

    CASE NOTES

    Debts of garnishee subject to § 8.01-501 . —

    Construing § 8.01-511 and this section together against the background of § 8.01-501 , a garnishment subjects to the execution lien of § 8.01-501 , not only those debts already due the judgment debtor when the summons in garnishment is served upon the garnishee, but also any indebtedness of the garnishee to the judgment debtor which arises between the date of service of such summons on the garnishee and the return date of the summons. Virginia Nat'l Bank v. Blofeld, 234 Va. 395 , 362 S.E.2d 692, 4 Va. Law Rep. 1230, 1987 Va. LEXIS 269 (1987).

    Information on possible exemptions required by due process. —

    Due process requires that the garnishment summons include some information on possible exemptions as well as the process for contesting the garnishment. Harris v. Bailey, 574 F. Supp. 966, 1983 U.S. Dist. LEXIS 11710 (W.D. Va. 1983), disapproved, Reigh v. Schleigh, 784 F.2d 1191, 1986 U.S. App. LEXIS 22689 (4th Cir. 1986).

    But all possible exemptions need not be listed. —

    Actual notice of all available exemptions is not likely to increase the probability of the debtor’s correcting an erroneous deprivation. Such a potentially confusing laundry list is not required by due process. The complex myriad of state and federal exemptions therefore is not required to be set out on the summons. Rather, what is required is that the summons served on the debtor contain a list of those essential federal and state exemptions that provide the basic necessities of life for someone in the position of a widow whose social security benefits are her sole source of income. The social security exemption certainly should be included; such benefits provide the bare necessities for many in the society. Beyond this list of absolutely essential exemptions such as social security benefits, the debtor should be informed simply that other possible exemptions from garnishment exist under the law. Harris v. Bailey, 574 F. Supp. 966, 1983 U.S. Dist. LEXIS 11710 (W.D. Va. 1983), disapproved, Reigh v. Schleigh, 784 F.2d 1191, 1986 U.S. App. LEXIS 22689 (4th Cir. 1986).

    Validity of lien. —

    A garnishment of funds or other intangible property cannot proceed without a valid lien on that property by writ of fieri facias. International Fid. Ins. Co. v. Ashland Lumber Co., 250 Va. 507 , 463 S.E.2d 664, 1995 Va. LEXIS 144 (1995).

    Lien not established. —

    Where plaintiff had no possessory interest in funds retained by VDOT on August 29, 1994, no lien was established and no garnishment of funds could result. International Fid. Ins. Co. v. Ashland Lumber Co., 250 Va. 507 , 463 S.E.2d 664, 1995 Va. LEXIS 144 (1995).

    OPINIONS OF THE ATTORNEY GENERAL

    Levy by sheriff against personal property when serving writs of fieri facias. —

    Writs of fieri facias, debtor interrogatories and garnishments are distinct, but related proceedings, so that, although sheriff or other executing officer may be required to levy on the tangible personal property of a judgment debtor when executing a writ of fieri facias, no such requirement is imposed when serving a Summons for Interrogatories or Garnishment Summons. See opinion of Attorney General to The Honorable L.J. Ayers, III, Sheriff for Amherst County, 10-075, (02/04/11).

    § 8.01-512.4. Notice of exemptions from garnishment and lien.

    No summons in garnishment shall be issued or served, nor shall any notice of lien be served on a financial institution pursuant to § 8.01-502.1 , unless a notice of exemptions and claim for exemption form are attached. The notice shall contain the following statement:

    NOTICE TO JUDGMENT DEBTOR

    HOW TO CLAIM EXEMPTIONS FROM GARNISHMENT AND LIEN

    The attached Summons in Garnishment or Notice of Lien has been issued on request of a creditor who holds a judgment against you. The Summons may cause your property or wages to be held or taken to pay the judgment.

    The law provides that certain property and wages cannot be taken in garnishment. Such property is said to be exempted. A summary of some of the major exemptions is set forth in the request for hearing form. There is no exemption solely because you are having difficulty paying your debts.

    If you claim an exemption, you should (i) fill out the claim for exemption form and (ii) deliver or mail the form to the clerk’s office of this court. You have a right to a hearing within seven business days from the date you file your claim with the court. If the creditor is asking that your wages be withheld, the method of computing the amount of wages that are exempt from garnishment by law is indicated on the Summons in Garnishment attached. You do not need to file a claim for exemption to receive this exemption, but if you believe the wrong amount is being withheld you may file a claim for exemption.

    On the day of the hearing you should come to court ready to explain why your property is exempted, and you should bring any documents that may help you prove your case. If you do not come to court at the designated time and prove that your property is exempt, you may lose some of your rights.

    It may be helpful to you to seek the advice of an attorney in this matter.

    REQUEST FOR HEARING-GARNISHMENT/LIEN EXEMPTION CLAIM

    I claim that the exemption(s) from garnishment or lien that are checked below apply in this case:

    MAJOR EXEMPTIONS UNDER FEDERAL AND STATE LAW

    _______________ 1. Social Security benefits and Supplemental Security Income (SSI)(42 U.S.C. § 407).

    _______________ 2. Veterans’ benefits (38 U.S.C. § 5301).

    _______________ 3. Federal civil service retirement benefits (5 U.S.C. § 8346).

    _______________ 4. Annuities to survivors of federal judges (28 U.S.C. § 376(n)).

    _______________ 5. Longshore and Harbor Workers’ Compensation Act (33 U.S.C. § 916).

    _______________ 6. Black lung benefits.

    Exemptions listed under 1 through 6 above may not be applicable in child support and alimony cases (42 U.S.C. § 659).

    _______________ 7. Seaman’s, master’s or fisherman’s wages, except for child support or spousal support and maintenance (46 U.S.C. § 11109).

    _______________ 8. Unemployment compensation benefits (§ 60.2-600 , Code of Virginia). This exemption may not be applicable in child support cases (§ 60.2-608 , Code of Virginia).

    _______________ 9. Portions or amounts of wages subject to garnishment (§ 34-29 , Code of Virginia).

    _______________ 10. Public assistance payments (§ 63.2-506, Code of Virginia).

    _______________ 11. Homestead exemption of $5,000, or $10,000 if the debtor is 65 years of age or older, in cash, and, in addition, real or personal property used as the principal residence of the householder or the householder’s dependents not exceeding $25,000 in value (§ 34-4 , Code of Virginia). This exemption may not be claimed in certain cases, such as payment of spousal or child support (§ 34-5 , Code of Virginia).

    _______________ 12. Property of disabled veterans — additional $10,000 cash (§ 34-4.1 , Code of Virginia).

    _______________ 13. Workers’ Compensation benefits (§ 65.2-531 , Code of Virginia).

    _______________ 14. Growing crops (§ 8.01-489 , Code of Virginia).

    _______________ 15. Benefits from group life insurance policies (§ 38.2-3339, Code of Virginia).

    _______________ 16. Proceeds from industrial sick benefits insurance (§ 38.2-3549, Code of Virginia).

    _______________ 17. Assignments of certain salary and wages (§ 8.01-525.10 , Code of Virginia).

    _______________ 18. Benefits for victims of crime (§ 19.2-368.12 , Code of Virginia).

    _______________ 19. Preneed funeral trusts (§ 54.1-2823, Code of Virginia).

    _______________ 20. Certain retirement benefits (§ 34-34 , Code of Virginia).

    _______________ 21. Child support payments (§ 20-108.1 , Code of Virginia).

    _______________ 22. Support for dependent minor children (§ 34-4.2 , Code of Virginia). To claim this exemption, the debtor shall attach to the claim for exemption form an affidavit that complies with the requirements of subsection B of § 34-4.2 and two items of proof showing that the debtor is entitled to this exemption.

    _______________ 23. Emergency relief payments (§ 34-28.3 , Code of Virginia).

    _______________ 24. Other (describe exemption): $ . . . . .

    I request a court hearing to decide the validity of my claim. Notice of the hearing should be given me at:

    . . . . . . . . . . . . . . . .

    (address) (telephone no.)

    The statements made in this request are true to the best of my knowledge and belief.

    . . . . . . . . . . . . . . . .

    (date) (signature of judgment debtor)

    History. 1984, c. 1; 1986, c. 489; 1989, c. 684; 1994, c. 40; 2007, c. 872; 2009, cc. 332, 387, 388; 2010, c. 673; 2012, cc. 23, 79; 2020, c. 328; 2020, Sp. Sess. I, c. 39.

    Editor’s note.

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “(§ 8.01-525.10 , Code of Virginia)” for “(§ 55-165, Code of Virginia).”

    Acts 2020, c. 328, cl. 2 provides: “That the Executive Secretary of the Supreme Court of Virginia shall promulgate and update the forms necessary to comply with the provisions of the first enactment of this act.”

    Acts 2020 Sp. Sess. I, c. 39, cl. 3 provides: “The exemption created by this act shall not extend to a garnishment process or other creditor process that concluded before the enactment of this act [effective October 28, 2020].”

    The 2007 amendment.

    The 2007 amendment by c. 872 added subdivision 21 and designated former subdivision 21 as subdivision 22.

    The 2009 amendments.

    The 2009 amendment by c. 332, in the “Request for Hearing-Garnishment Exemption Claim” form, added exemption 22 and redesignated former exemption 22 as exemption 23.

    The 2009 amendment by c. 387 inserted “or $10,000 if the debtor is 65 years of age or older” in exemption 11.

    The 2009 amendment by c. 388 substituted “$10,000” for “$2,000” in exemption 12.

    The 2010 amendments.

    The 2010 amendment by c. 673 inserted “nor shall any notice of lien be served on a financial institution pursuant to § 8.01-502.1 ” in the first sentence, inserted “AND LIEN” following “FROM GARNISHMENT,” inserted “or Notice of Lien” following “The attached Summons in Garnishment,” in the second paragraph, inserted “/LIEN” following “GARNISHMENT,” and inserted “or lien” following “exemption(s) from garnishment.”

    The 2012 amendments.

    The 2012 amendments by cc. 23 and 79 are identical, and substituted “Longshore and harbor Workers’ Compensation Act” for “Longshoremen and Harborworkers Compensation Act” in exemption 5 and “may not be claimed in certain cases, such as payment of spousal or child support” for “may not be available in certain cases, such as payment of rent or services of a laborer or mechanic” in exemption 11.

    The 2020 amendments.

    The 2020 amendment by c. 328, inserted “and, in addition, real or personal property used as the principal residence of the householder or the householder’s dependents not exceeding $25,000 in value” in exemption 11 and made stylistic changes.

    The 2020 Sp. Sess. I amendments.

    The 2020 amendment by Sp. Sess. I, c. 39, effective October 28, 2020, in the “Major Exemptions Under Federal and State Law” form, added exemption 23 and redesignated former exemption 23 as exemption 24.

    Law Review.

    For note, “Untangling the Safety Net: Protecting Federal Benefits from Freezes, Fees, and Garnishment,” see 66 Wash. & Lee L. Rev. 371 (2009).

    § 8.01-512.5. Hearing on claim of exemption from garnishment.

    A judgment debtor shall have the right to a hearing on his claim of exemption from garnishment no later than seven business days from the date that the claim is filed with the court.

    The clerk shall notify the parties of the date, time and place of the hearing and the exemption being claimed. The garnishee shall comply with the garnishment summons unless and until ordered otherwise in writing by the court. The order shall take effect upon receipt by the garnishee. The clerk is required to provide a copy of the order or other hearing disposition to the garnishee only if the garnishment summons is dismissed or is modified by the judge.

    History. 1984, c. 1.

    § 8.01-513. Service upon corporation or limited liability company.

    1. If the person upon whom there is a suggestion of liability as provided in § 8.01-511 is a corporation, the summons shall be served upon an officer, an employee designated by the corporation other than an officer of the corporation, or, if there is no designated employee or the designated employee cannot be found, upon a managing employee of the corporation other than an officer of the corporation. If the judgment creditor or his attorney files with the court a certificate that he has used due diligence and that (i) no such officer or employee or other person authorized to accept such service can be found within the Commonwealth or (ii) such designated or managing employee found is also the judgment debtor, then such summons shall be served on the registered agent of the corporation or upon the clerk of the State Corporation Commission as provided in §§ 13.1-637 , 13.1-766 , 13.1-836 and 13.1-928 . However, service on the corporation shall not be made upon a designated or managing employee who is also the judgment debtor. If the corporation intends to designate an employee for service, the corporation shall file a designation with the State Corporation Commission.
    2. If the person upon whom there is a suggestion of liability as provided in § 8.01-511 is a limited liability company, the summons shall be served upon a member, manager, or employee designated by the limited liability company for the purpose of such service or, if there is no designated member, manager, or employee, or the designated member, manager, or employee cannot be found, upon a managing employee of the limited liability company. If the judgment creditor or his attorney files with the court a certificate that he has used due diligence and that (i) no such member, manager, or employee or other person authorized to accept such service can be found within the Commonwealth or (ii) such designated member, manager, employee, or managing employee found is also the judgment debtor, then such summons shall be served on the registered agent of the limited liability company or upon the clerk of the State Corporation Commission as provided in § 13.1-1018 . However, service on the limited liability company shall not be made upon a designated member, manager, employee, or managing employee who is also the judgment debtor. If the limited liability company intends to designate a member, manager, or employee for service, the limited liability company shall file a designation with the State Corporation Commission.
    3. For the purposes of this section, “managing employee” means an employee charged by the corporation or the limited liability company, as applicable, with the control of operations and supervision of employees at the business location of such corporation or limited liability company where process is sought to be served.

    History. Code 1950, § 8-441.2; 1974, c. 561; 1977, c. 617; 1980, c. 514; 1997, c. 395; 1998, cc. 723, 737; 2004, c. 231; 2006, c. 912.

    The 1997 amendment rewrote this section.

    The 2004 amendments.

    The 2004 amendment by c. 231 added the last sentence.

    The 2006 amendments.

    The 2006 amendment by c. 912 inserted the A designation at the beginning of the first paragraph and deleted the former last sentence, which read: “For the purposes of this section, ‘managing employee’ means an employee charged by the corporation with the control of operations and supervision of employees at the business location of the corporation where process is sought to be served”; and added subsections B and C.

    CASE NOTES

    Service of process. —

    If an attorney for a judgment creditor could find no designated officer or employee of an employer within the Commonwealth of Virginia, then the attorney was required either to serve a registered agent of the employer or to serve the clerk of the Virginia State Corporation Commission. Mailing a garnishment order to the payroll department of the employer in another state was an impermissible method of service. Becker v. Commonwealth, 64 Va. App. 481, 769 S.E.2d 683, 2015 Va. App. LEXIS 88 (2015).

    § 8.01-514. When garnishment summons returnable.

    The summons in garnishment, whether issued by a circuit court or a district court, may be directed to a sheriff of any county or city wherein the judgment debtor resides or where the garnishment defendant resides or where either may be found and shall be made returnable to the court that issued it within 90 days from the writ’s issuance, except that, in the case of a wage garnishment, the summons shall be returnable not more than 180 days after such issuance.

    History. Code 1950, § 8-442; 1976, c. 659; 1977, cc. 454, 617; 1979, c. 36; 2003, c. 234; 2006, c. 575.

    REVISERS’ NOTE

    Section 8.01-514 is former § 8-442. The first sentence was rewritten so that the summons in garnishment is returnable to the general district court not more than sixty days after the date thereof and to the circuit court not more than ninety days from the date thereof. This change comports with the return date of executions found in § 16.1-99 and the return period for writs specified in Rule 3:2.

    Editor’s note.

    Acts 1977, c. 454, amended former § 8-442, corresponding to this section. Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, that amendment was deemed to have amended this section.

    The Reviser’s note under this section accompanied the original enactment of Title 8.01 in 1977. The reference therein to a 60-day period for return of the summons in garnishment to the general district court does not reflect the subsequent amendment of this section in 1979.

    The 2003 amendments.

    The 2003 amendment by c. 234 substituted “90” for “ninety” throughout the section, and inserted “except that in the instance of a wage garnishment, the summons shall be returnable not more than 180 days after the date of issuance” at the end of the first sentence.

    The 2006 amendments.

    The 2006 amendments by c. 575 rewrote the section.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For note, “Untangling the Safety Net: Protecting Federal Benefits from Freezes, Fees, and Garnishment,” see 66 Wash. & Lee L. Rev. 371 (2009).

    CASE NOTES

    The life of the garnishment summons is 90 days under Virginia law. Thus, if funds are deposited into the debtor’s bank account subsequent to the service of the garnishment summons but prior to the return date of the writ, such funds would be subject to the reach of the creditor in garnishment. Canfield v. Simpson (In re Jones), 47 Bankr. 786, 1985 Bankr. LEXIS 6476 (Bankr. E.D. Va. 1985).

    Return date represents the end of a garnishment period. —

    Return date represents the end of a garnishment period and compels a garnishee to appear in court or file an answer prior to the return date. Becker v. Commonwealth, 64 Va. App. 481, 769 S.E.2d 683, 2015 Va. App. LEXIS 88 (2015).

    A garnishment lien of the type acquired by creditors in Virginia is a transfer by virtue of being an involuntary disposing or parting with an interest in property. Canfield v. Simpson (In re Jones), 47 Bankr. 786, 1985 Bankr. LEXIS 6476 (Bankr. E.D. Va. 1985).

    A “transfer” under a garnishment lien on a bank account cannot occur until funds are actually deposited into the debtor’s account. Consequently, only those funds present in the debtor’s bank account on the date the garnishment summons was served coupled with all other funds likewise deposited more than 90 days prior to the date of the filing of the petition in bankruptcy constitute valid transfers not avoidable by the trustee in bankruptcy as a preference pursuant to 11 U.S.C. § 547(b). To the extent that funds were deposited into the debtor’s garnished bank account within 90 days prior to bankruptcy, those funds would be a preference and may be recovered by the trustee for the benefit of the creditors of the estate. Canfield v. Simpson (In re Jones), 47 Bankr. 786, 1985 Bankr. LEXIS 6476 (Bankr. E.D. Va. 1985) (decided prior to 2003 amendment).

    § 8.01-515. How garnishee examined; determining exemption from employee’s withholding certificate; amount due pursuant to exemptions in § 34-29 (a).

    A person so summoned shall appear in person and be examined on oath or he may file a statement. A corporation so summoned shall appear by an authorized agent who shall be examined on oath or may file a statement, not under seal of such authorized agent. Such statement shall show the amount the garnishee is indebted to the judgment debtor, if any, or what property or effects, if any, the garnishee has or holds which belongs to the judgment debtor, or in which he has an interest. Payment to the court of any amount by the garnishee shall have the same force and effect as a statement which contains the information required by this section. If the judgment debtor or judgment creditor disputes the verity or accuracy of such statement or amount and so desires, then summons shall issue requiring the appearance of such person or authorized agent for examination on oath, and requiring him to produce such books and papers as may be necessary to determine the fact.

    In determining the exemption to which the employee is entitled, the employer may until otherwise ordered by the court rely upon the information contained in the employee’s withholding exemption certificate filed by the employee for federal income tax purposes, and any person showing more than one exemption thereon shall be considered by him to be a householder or head of a family.

    The employer may apply the exemptions provided in § 34-29 (a) unless otherwise specified on the summons, or unless otherwise ordered by the court.

    History. Code 1950, § 8-443; 1954, c. 379; 1977, c. 617; 1979, c. 242; 1983, c. 399.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 73.

    CASE NOTES

    Statute contemplates personal judgment against garnishee. —

    Under our statutes garnishment is simply the process by which a creditor enforces the lien of his execution against the effects of his debtor in the hands of the garnishee, and the statute plainly contemplates only a personal judgment in such case based upon proof or rather upon the confession of the garnishee that he has effects in his hands belonging to the debtor. Bickle v. Chrisman, 76 Va. 678 , 1882 Va. LEXIS 68 (1882) (decided under prior law).

    When order can be made. —

    On a summons on suggestion the court can make no order against the garnishee unless he owes a debt to the defendant in the execution or has in his hands personal estate of such defendant for which debt or estate the defendant could maintain an action at law. Freitas v. Griffith, 112 Va. 343 , 71 S.E. 531 , 1911 Va. LEXIS 90 (1911) (decided under prior law).

    § 8.01-516. Repealed by Acts 1983, c. 399.

    § 8.01-516.1. Garnishment dispositions.

    1. If the amount of liability is not disputed and the garnishee admits liability to the court either by (i) examination on the return date of the summons, or (ii) written statement as provided by § 8.01-515 on or before the return date of the summons, the court shall order the delivery of such estate or payment of the value of such estate into court without entering judgment against the garnishee.  Should a garnishee fail to comply with the order within thirty days after service of such order on the garnishee, then judgment may be entered against the garnishee.
    2. Upon certification by the judgment creditor, its bona fide employee, or its attorney that its claim has been satisfied or that it desires its action against the garnishee to be dismissed for any other reason, the court, or clerk thereof, where the action has been filed, shall, by written order, which may be served by the sheriff, notify the garnishee to cease withholding assets of the judgment debtor, and to treat any funds previously withheld as if the original garnishment action had not been filed.  The court in which the garnishment action was filed shall then dismiss the action on or before the return date.

    History. 1983, c. 399; 1993, c. 385.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 71.

    CASE NOTES

    Bankruptcy debtor’s right to avoid judgment lien. —

    Under Virginia law, a creditor’s lien arose on the date that a writ of fieri facias and garnishment summons were served on a bank and debtor’s accounts were frozen, but on the date that debtor filed his bankruptcy petition, the funds were still on deposit and had not been delivered to the state court. Thus, the garnished funds did not vest in the creditor, as the automatic stay was in place prior to the time when the state court could have ordered payment of the funds to the creditor, and debtor was entitled to avoid the creditor’s judgment lien as impairing his exemption in those funds. In re Underwood, No. 18-70168, 2018 Bankr. LEXIS 1573 (Bankr. W.D. Va. May 30, 2018).

    § 8.01-517. Exemption of portion of wages; payment of excess into court.

    Notwithstanding the provisions of §§ 8.01-515 and 8.01-516.1 , any employer against whom any garnishment is served in connection with an action or judgment against an employee may pay to such employee when due wages or salary not exceeding the amount exempted by § 34-29 unless such exemptions shall have been specifically disallowed by the court and shall answer such garnishment summons by a written statement verified by affidavit, showing the amount of wages or salary due on the return date of the garnishment summons and the amount of wages or salary so exempted, and if there shall be an excess of wages or salary so due over the amount of the exemptions, the employer may pay the amount of such excess into the court where the garnishment summons is returnable, which payment when determined by the court to be correct will constitute a discharge of any liability of the employer to the employee for the wages or salary so withheld.

    History. Code 1950, § 8-445; 1952, c. 377; 1954, c. 379; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-517 is former § 8-445 without substantive change. The language that states the affidavit need not be under seal has been deleted.

    § 8.01-518. When garnishee is personal representative of decedent.

    If the person so summoned be the personal representative of a decedent, he shall answer in writing whether or not there is in his hands in his fiduciary capacity, any sum of money owing to the judgment debtor, and if so, the amount thereof, if the same has been definitely determined, and when it will be payable by him; and if such amount has not been definitely ascertained, the court shall continue the case, with direction to him to thereafter, and as soon as such amount has been definitely determined, report the same to the court, and say when it will be payable by him. In either event, and when the amount so owing to the judgment debtor has been definitely fixed and determined, the court shall direct the disposition of such fund to the creditor of such other person or persons according as their rights may be determined.

    History. Code 1950, § 8-446; 1977, c. 617.

    § 8.01-519. Proceedings where garnishee fails to appear or answer, or to disclose his liability.

    If the garnishee, after being served with the summons, fail to appear or answer personally, or if it be suggested that he has not fully disclosed his liability, the proceedings shall be according to §§ 8.01-564 and 8.01-565 , mutatis mutandis, except that when the summons is before a general district court, the court shall proceed without a jury.

    History. Code 1950, § 8-447; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-519 is former § 8-447. The only change is the insertion of the phrase “or answer personally” which a garnishee may do instead of a physical appearance.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 73.

    CASE NOTES

    Entry of judgment. —

    Upon proof of any debt owed by the garnishee to the judgment debtor, the court may enter judgment in favor of the judgment creditor against the garnishee in the amount of such debt. Virginia Bldrs' Supply, Inc. v. Brooks & Co., 250 Va. 209 , 462 S.E.2d 85, 12 Va. Law Rep. 230, 1995 Va. LEXIS 98 (1995).

    Failure to inquire into total sum of funds. —

    Because the circuit court failed to conduct the requisite inquiry into the total sum of the funds deposited into a judgment debtor’s bank account during the garnishment period, the record was insufficient on appeal to resolve the amount of indebtedness of the garnishee to the debtor, and therefore, the judgment creditor, during the garnishment period; the alleged unreliability of the account statement does not exempt the account from review. PS Bus., L.P. v. Deutsch & Gilden, Inc., 287 Va. 410 , 758 S.E.2d 508, 2014 Va. LEXIS 62 (2014).

    Burden of persuasion. —

    Circuit court erred in placing the burden of persuasion in a garnishment proceeding on the garnishee, rather than the judgment creditor, where the extent of the garnishee’s liability constituted an element of the judgment creditor’s claim. Suntrust Bank v. PS Bus. Parks, L.P., 292 Va. 644 , 791 S.E.2d 571, 2016 Va. LEXIS 149 (2016).

    CIRCUIT COURT OPINIONS

    Garnishee not liable. —

    Garnishee was not liable because the evidence supported the accuracy of its garnishment answer that it held or owed no funds to a judgment debtor; the garnishees terminated a subcontract once it became aware of the judgment against the debtor. Sherman v. Southern Grading,Inc., 101 Va. Cir. 122, 2019 Va. Cir. LEXIS 15 (Chesapeake Jan. 29, 2019).

    § 8.01-520. Payment, etc., by garnishee before return of summons.

    Any person, summoned under § 8.01-511 , before the return day of the summons, may pay what he is liable for to the clerk of the court issuing the summons and such clerk shall give a receipt, upon request, for what is so paid.

    History. Code 1950, § 8-448; 1977, c. 617; 1983, c. 399.

    § 8.01-521. Judgments as to costs.

    Unless the garnishee appear to be liable for more than is so delivered and paid, there shall be no judgment against him for costs. In other cases, judgment under §§ 8.01-516.1 and 8.01-519 may be for such costs, and against such party, as the court may deem just.

    History. Code 1950, § 8-449; 1977, c. 617.

    § 8.01-522. Wages and salaries of State employees.

    Unless otherwise exempted, the wages and salaries of all employees of this Commonwealth, other than State officers, shall be subject to garnishment or execution upon any judgment rendered against them. Whenever the salary or wages of such employees as above mentioned shall be garnished under this section, the process shall be such as is usual in other cases of garnishment and shall be served on the judgment debtor and on the officer or supervisor who is head of the department, agency, or institution where the employee is employed, or other officer through whom the judgment debtor’s salary or wages is paid, provided that process shall not be served upon the State Treasurer or the State Comptroller except as to employees of their respective departments, and upon such service the officer or supervisor shall, on or before the return day of process, transmit to the clerk of the court issuing the process a certificate showing the amount due from the Commonwealth to such judgment debtor, up to the return day of the process, which amount the officer or supervisor shall hold subject to order of the court issuing the process. Such certificate shall be evidence of all facts therein stated, unless the court direct that the deposition of the officer or supervisor, or such other officer through whom the judgment debtor’s salary or wages be paid, be taken, in which event the deposition of the officer or supervisor shall be taken in his office and returned to the clerk of the court in which the garnishment is, just as other depositions are returned, and in no such case shall the officer or supervisor be required to leave his office to testify. In all proceedings under this section, if the judgment be for the plaintiff, the amount found to be due the judgment debtor by the Commonwealth shall be paid as directed by the court.

    History. Code 1950, § 8-449.1; 1958, c. 430; 1973, c. 236; 1977, c. 617.

    Cross references.

    As to exemption from garnishment of pensions and insurance of certain public officers and employees, see §§ 51.1-124.4 , 51.1-510 , and 51.1-802 .

    Law Review.

    For survey of Virginia law on municipal corporations for the year 1972-1973, see 59 Va. L. Rev. 1548 (1973).

    For an article on the need for reform of and a proposed revision of Virginia’s Exemption Statutes, see 37 Wash. & Lee L. Rev. 127 (1980).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 95.

    CASE NOTES

    Editor’s note.

    The object of this section and §§ 8.01-524 and 8.01-525 was to place the wages and salaries of municipal employees and all employees of the State, except State officials, on the same basis as the wages and salaries of employees of persons engaged in ordinary business enterprises. Knight v. Peoples Nat'l Bank, 182 Va. 380 , 29 S.E.2d 364, 1944 Va. LEXIS 187 (1944).

    Wages, etc., earned between date of fieri facias and return day are bound by it. —

    This section and §§ 8.01-524 and 8.01-525 , authorizing certain salaries, wages or compensation to be garnished, include not only the amount of such wages, salaries or other compensation due at the time the fieri facias is issued, but bind all of such unearned wages, salaries or compensation as may be earned between the date of the fieri facias and its return day. Knight v. Peoples Nat'l Bank, 182 Va. 380 , 29 S.E.2d 364, 1944 Va. LEXIS 187 (1944).

    Salaries of constitutional officers are exempt. —

    The Supreme Court has consistently held that the salary of a constitutional officer is exempt from garnishment or attachment. This rule has not been changed by the passage of this section. Hilton v. Amburgey, 198 Va. 727 , 96 S.E.2d 151, 1957 Va. LEXIS 131 (1957).

    Salary of Attorney General not liable to attachment. —

    The salary of the Attorney General is of constitutional grant, and of public official right. It is not liable to attachment, to garnishment and upon principles of public policy, it has absolute immunity from detention for debt or counterclaim. Blair v. Marye, 80 Va. 485 , 1885 Va. LEXIS 87 (1885).

    § 8.01-523. Service upon federal government.

    1. If the suggestion of liability as provided in § 8.01-511 is against the United States of America, the summons shall be served upon the managing employee of the agency of the federal government which is alleged to be liable, or, if the judgment debtor is a member of the armed forces of the United States, upon the chief fiscal officer of the military post to which the judgment debtor was last assigned.
    2. If service on the agents identified in subsection A for service of process on the United States cannot be made, then service may be made on a United States attorney or other agent in the manner set forth in Rule 4 (d) (4) of the Federal Rules of Civil Procedure, as from time to time amended.

    History. Code 1950, § 8-441.3; 1976, c. 659; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-523 is identical with former § 8-441.3 except for the addition of the provision specifying the method of service on the federal government which appears as subsection B.

    Law Review.

    For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

    § 8.01-524. Wages and salaries of city, town and county officials, clerks and employees.

    Unless otherwise exempt, the wages and salaries of all officials, clerks and employees of any city, town or county shall be subject to garnishment or execution upon any judgment rendered against them.

    History. Code 1950, § 8-449.2; 1977, c. 617.

    Cross references.

    As to exemption from garnishment of pensions and insurance of certain public officers and employees, see §§ 51.1-124.4 , 51.1-510 , and 51.1-802 .

    Law Review.

    For survey of Virginia law on municipal corporations for the year 1972-1973, see 59 Va. L. Rev. 1548 (1973).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 95.

    CASE NOTES

    A municipal corporation may be garnisheed or attached for a debt due to one of its creditors just as a natural person may be. Such a proceeding is not contrary to the public policy of this State. Portsmouth Gas Co. v. Sanford, 97 Va. 124 , 33 S.E. 516 , 1899 Va. LEXIS 19 (1899) (decided under prior law).

    Salary of sheriff is exempt. —

    The salary of a sheriff as a constitutional officer is not subject to garnishment. Hilton v. Amburgey, 198 Va. 727 , 96 S.E.2d 151, 1957 Va. LEXIS 131 (1957) (decided under prior law).

    § 8.01-525. Who are officers and employees of cities, towns and counties.

    All officers, clerks and employees who hold their office by virtue of authority from the General Assembly or by virtue of city, town or county authority whether by election or appointment and who receive compensation for their services from the moneys of such city, town or county shall, for the purposes of garnishment, be deemed to be, and are, officers, clerks or employees of such city, town or county.

    History. Code 1950, § 8-449.3; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 95.

    CASE NOTES

    Sheriffs, clerks of court, treasurers, Commonwealth’s attorneys and commissioners of revenue do not hold their offices by virtue of authority of the General Assembly or by virtue of authority of a municipality or county. Such officers hold their offices by virtue of Va. Const., Art. VII, § 4. Hilton v. Amburgey, 198 Va. 727 , 96 S.E.2d 151, 1957 Va. LEXIS 131 (1957) (decided under prior law).

    The fact that the county pays one third of the salary of a sheriff does not make him an officer or employee of the county within the definition of such officers stated in former version of this section. Hilton v. Amburgey, 198 Va. 727 , 96 S.E.2d 151, 1957 Va. LEXIS 131 (1957) (decided under prior law).

    Chapter 18.1. Assignments For Benefit Of Creditors.

    Article 1. Assignment of Property.

    § 8.01-525.1. Recordation; notice of sale; preferences prohibited.

    Whenever a deed of assignment for the benefit of creditors is executed, the deed shall be recorded. If no notice of the sale has previously been given, the trustee named in such deed, or the one substituted in the manner prescribed in this article, before selling under the deed of assignment, shall, at least 10 days before the sale, notify each of the creditors named in the deed by certified mail, return receipt requested, advising of (i) the execution of such sale; (ii) when, where, and how the sale will be held; (iii) the terms of such sale; and (iv) whether or not the deed provides that acceptance shall be in full satisfaction. No creditor shall be preferred in the deed except those given a lien or preference by law, or those having a valid lien upon the property conveyed, or some part of such lien, and those having a lien shall be preferred only to the extent of the value of the property upon which they have a lien.

    History. 1924, p. 657; Michie Code 1942, § 5278b; Code 1950, § 55-156; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, recodified Title 55 as Title 55.1, effective October 1, 2019. As part of the recodification, former Chapter 9 (§ 55-156 et seq.) of Title 55 was recodified as Chapter 18.1 (§ 8.01-525.1 et seq.) of this title. Where appropriate, the historical citations to former sections have been added to corresponding new sections. For transition provisions, see § 55.1-100 . For tables of corresponding former and new sections, see the tables in Volume 10.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assignments for the Benefit of Creditors, §§ 2, 9, 31, 44, 46.

    CASE NOTES

    I.Decided Under Prior Law.

    The general assignment contemplated by this section consists of a transfer of all the debtor’s assets upon a trust for immediate liquidation and the payment of all his debts so far as the proceeds may go. Home Bldg. Ass'n v. Mackall, 205 Va. 73 , 135 S.E.2d 171, 1964 Va. LEXIS 147 (1964).

    Hence, a deed conveying a tract of realty to two trustees to secure debts owed by the grantor to 15 of his creditors was not a general assignment for the benefit of creditors, and was not governed by this section. Home Bldg. Ass'n v. Mackall, 205 Va. 73 , 135 S.E.2d 171, 1964 Va. LEXIS 147 (1964).

    While an assignment may be general in nature, it is not necessarily a general assignment. Home Bldg. Ass'n v. Mackall, 205 Va. 73 , 135 S.E.2d 171, 1964 Va. LEXIS 147 (1964).

    Instances of preferences prohibited. —

    A bank which held deeds of trust on land, including an assignment for the benefit of creditors, contended that under a provision thereof that the trustee should pay “all claims having priority by reason of any valid lien securing the same,” all lien debts should be paid in full before the general creditors received anything. It was held that if the language of the deed of assignment were susceptible of the construction contended for by the bank it would have resulted in a preference to it and to other lien creditors expressly prohibited by this section. Federal Land Bank v. McCann, 174 Va. 30 , 4 S.E.2d 742, 1939 Va. LEXIS 138 (1939).

    Where an insolvent debtor conveyed all or practically all of his property to a trustee to be disposed of and the proceeds to be distributed among his creditors, and within two days after the four months fixed by federal statute for the setting aside of preferences voluntarily filed a petition in bankruptcy, such conveyance was a general assignment and the preferences created were forbidden by this section. Pilson v. Rodeffer, 61 F.2d 976, 1932 U.S. App. LEXIS 4480 (4th Cir. 1932).

    Prohibited provisions. —

    A general assignment for the benefit of creditors may not contain provisions prescribing priorities and conditions concerning distribution. In re W. Auto Assoc. Store, 295 F. Supp. 566, 1968 U.S. Dist. LEXIS 8443 (W.D. Va. 1968).

    Character of general assignment not destroyed by invalid provision. —

    The fact that a provision of the general assignment is invalid does not destroy the character of the assignment. In re W. Auto Assoc. Store, 295 F. Supp. 566, 1968 U.S. Dist. LEXIS 8443 (W.D. Va. 1968).

    § 8.01-525.2. Substitution of another trustee by creditors.

    A majority of the unsecured creditors in number and amount of the assignor may agree in writing upon a trustee different from the one named in the deed of assignment, and upon petition to the court that would have jurisdiction if an action were brought against the assignor, such agreed trustee may be substituted in lieu of such named trustee with all of the rights, powers, and duties conferred upon such named trustee in the deed of assignment. The clerk of the court where the deed of assignment is recorded shall record such order presented by one of the parties and shall include a reference to the order book and page where such deed is recorded, together with the name of the substituted trustee, and shall make proper indexing. The substitute trustee shall reside in the county or city in which the property that is conveyed in the deed of assignment or the greater portion thereof in value is located.

    History. 1924, p. 657; Michie Code 1942, § 5278c; Code 1950, § 55-157; 2014, c. 330; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assignments for the Benefit of Creditors, §§ 12, 40.

    § 8.01-525.3. Procedure to question claim of creditor.

    Any creditor of the assignor who questions the validity of any other creditor’s claim, or the trustee if he questions the validity of any claim, may file, within 30 days after the recordation of the deed, a petition against the creditor whose claim is questioned in the court that would have jurisdiction if the action was brought by the creditor whose claim is questioned against the assignor, and the burden of proof shall be upon the creditor whose claim is questioned. Upon the filing of such petition, the court may order the party whose claim is questioned to appear to defend such claim and the court shall determine the matter in a summary way.

    History. 1924, p. 658; Michie Code 1942, § 5278c; Code 1950, § 55-158; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assignments for the Benefit of Creditors, §§ 12, 40.

    § 8.01-525.4. Provision to bar further claim by creditors who accept deed.

    Any deed of assignment may contain a provision to the effect that those creditors who accept such assignment do so in full satisfaction of their respective claims and shall be forever barred from further recovery of any balance.

    History. 1924, p. 658; Michie Code 1942, § 5278d; Code 1950, § 55-159; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    § 8.01-525.5. Compensation of trustee.

    Every trustee referred to in this article shall receive reasonable compensation for services.

    History. 1924, p. 658; Michie Code 1942, § 5278d; Code 1950, § 55-160; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    Article 2. Assignment of Salary, Wages, or Income.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Assignments for the Benefit of Creditors, § 7.

    § 8.01-525.6. Petition for assignment of salary, wages, or income for the benefit of creditors.

    Upon petition of a debtor for the assignment of his salary, wages, or income to a trustee for the benefit of his creditors, a judge may appoint a trustee, subject to the supervision and order of the court, to receive such salary, wages, or income of such debtor and pay off the obligations due by such debtor as provided in this article, provided that a majority of the creditors have provided written consent of such assignment to the court. If the debtor is employed on a salary or for wages, the written consent of his employer is required.

    History. 1936, p. 523; Michie Code 1942, § 5278e; Code 1950, § 55-161; 2005, c. 839; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    § 8.01-525.7. Trustee; rights and duties; compensation.

    A trustee appointed pursuant to § 8.01-525.6 shall make written reports to the court as required by the court. The trustee may charge a fee of five percent of such salary, wages, or income received and disbursed by him; however, no public officer or employee who receives a full-time salary and who acts as trustee under this article shall retain such fee for his personal use.

    The trustee, upon being appointed, shall give written notice to any person, firm, or corporation who may owe the debtor any salary, wages, or income, and upon receiving such notice such person, firm, or corporation shall pay to the trustee any salary, wages, or income that are owed to such debtor, at the time it would otherwise be due to the debtor.

    The trustee may compromise and settle any claims against the debtor when he believes such compromise shall be for the benefit of all the creditors.

    History. 1936, p. 523; Michie Code 1942, § 5278f; Code 1950, § 55-162; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    § 8.01-525.8. Resignation of trustee.

    The trustee may resign at any time after accounting for all funds in his possession, and the court may appoint another trustee.

    History. 1936, p. 524; Michie Code 1942, § 5278i; Code 1950, § 55-163; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    § 8.01-525.9. Debts; order of payment.

    The trustee shall immediately upon receipt of such salary, wages, or income, or at such other time as the court may direct, disburse the funds as follows:

    1. The trustee shall first pay to the debtor directly, or for his benefit as the court may direct, any amount the debtor may be entitled to as exempt by law if he is a householder and head of a family or, if he is not a householder or head of a family, then such amount for the necessities of life as may be agreed upon by the creditors in the assignment. Nothing in this subdivision shall prevent the trustee from paying to the debtor a greater amount than is exempt by law if agreed to by the creditors and approved by the court.
    2. The trustee shall next pay, according to such funds as he has in his possession, a pro rata share of the balance to all the creditors on an equal basis or in such proportions as the creditors may agree.

    History. 1936, p. 524; Michie Code 1942, § 5278g; Code 1950, § 55-164; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    § 8.01-525.10. Exemption from garnishment, levy, or distress.

    When the assignment is executed and approved by the court and the trustee has been appointed and notice given to the creditors listed in the assignment, such assignment shall be deemed legal and binding upon all creditors and such salary, wages, or income shall be exempt from garnishment, levy, or distress during such time as the assignment is in existence. Such assignment shall have priority over all liens subsequently obtained.

    History. 1936, p. 524; Michie Code 1942, § 5278h; Code 1950, § 55-165; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    § 8.01-525.11. Termination of assignment by court.

    The court may, at any time, upon a motion stating that the terms of the assignment are not being complied with, order the debtor and trustee to appear before the court, and the court may, if the evidence justifies, or, in its discretion, declare the assignment null and void. When such action is taken by the court, a written notice shall be sent to all persons named in the assignment.

    The court may, on its own motion, revoke the assignment whenever it determines that the ends of justice are not being attained.

    When the assignment has been fully complied with, the court shall discharge the trustee and notify the employer of the debtor, if there is one, that the debtor is entitled to receive his entire salary, wages, or income directly.

    History. 1936, p. 524; Michie Code 1942, § 5278i; Code 1950, § 55-166; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    § 8.01-525.12. Clerk to preserve assignment; fees.

    The clerk of the court wherein any assignment is filed, as otherwise provided by law, shall maintain the court records of such assignment, together with all reports of the trustee, and shall keep an index of all such assignments. For filing the assignment, the fee as prescribed in § 17.1-275 shall be charged.

    History. 1936, p. 524; Michie Code 1942, § 5278j; Code 1950, § 55-167; 1994, c. 432; 2019, c. 712.

    Editor’s note.

    Acts 2019, c. 712, cl. 13 provides: “That the provisions of this act shall become effective on October 1, 2019.”

    Chapter 19. Forthcoming Bonds.

    § 8.01-526. When forthcoming bond taken; property remains in debtor’s possession.

    The sheriff or other officer levying a writ of fieri facias, or distress warrant, may take from the debtor a bond, with sufficient surety, payable to the creditor, reciting the service of such writ or warrant, and the amount due thereon, including the officer’s fee for taking the bond, commissions, and other lawful charges, if any, with condition that the property shall be forthcoming at the day and place of sale; whereupon, such property may be permitted to remain in the possession and at the risk of the debtor.

    History. Code 1950, § 8-450; 1977, c. 617.

    Cross references.

    As to distress warrants, see § 8.01-130.4 et seq.

    As to forthcoming bond in interpleader, see § 8.01-371 .

    As to forthcoming bond in attachment, see §§ 8.01-553 , 8.01-562 , 8.01-566 .

    As to forthcoming bond on award of injunction, see § 8.01-630 et seq.

    Michie’s Jurisprudence.

    For related discussion, see 8B M.J. Forthcoming and Delivery Bonds, §§ 3, 11.

    CASE NOTES

    Editor’s note.

    The law relating to forthcoming bonds was passed for the benefit of the owner of the goods taken, to enable him, at his risk, to retain the possession and use of the goods, and to avoid the expense of their safekeeping until the day of sale. Garland v. Lynch, 40 Va. (1 Rob.) 545, 1843 Va. LEXIS 7 (1843).

    Bonds not conforming to statute may be good as common-law bonds. —

    To be good as to a statutory bond, bonds must substantially conform to the statutes authorizing their execution. Unless they do so conform, while they may be good as common-law bonds, they are not valid as statutory bonds. Kiser v. Hensley, 123 Va. 536 , 96 S.E. 777 , 1918 Va. LEXIS 50 (1918).

    A forthcoming bond taken under this section and made payable to the sheriff, instead of the execution creditor, as required by that section, does not have the force of a judgment against the obligors herein, under § 8.01-527 . The lien given by § 8.01-527 being statutory, the steps which lead up to it must be substantially in accordance with the provisions of the statute which create it. The bond is inoperative as a statutory bond and creates no lien, though it may be a good common-law bond and the sheriff may sue upon it. In the absence of a statute to that effect, a bond payable to one person cannot operate as a lien in favor of another. Lynchburg Trust & Sav. Bank v. Elliott & Co., 94 Va. 700 , 27 S.E. 467 , 1897 Va. LEXIS 127 (1897).

    § 8.01-527. If bond forfeited, where returned; its effect; clerk to endorse time of return.

    If the condition of such forthcoming bond be not performed, the officer, unless payment be made of the amount due on the execution or warrant, including his fee, commission, and charges as aforesaid, shall, after the bond is forfeited, return it forthwith, with the execution or warrant, to such court, or the clerk’s office of such court as is prescribed by § 15.1-80. The clerk shall endorse on the bond the date of its return; and against such of the obligors therein as may be alive when it is forfeited and so returned, it shall have the force of a judgment. But no execution shall issue thereon under this section.

    History. Code 1950, § 8-451; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-527 is former § 8-451. The only substantial change is the requirement that the return of the bond be made “forthwith” instead of the former provision that it be made within thirty days. A corresponding change has been made in § 15.1-80 relating to the duty of officers of cities, counties and towns.

    Cross references.

    As to where bonds in attachment proceedings may be returned and filed, see § 8.01-554 .

    Michie’s Jurisprudence.

    For related discussion, see 8B M.J. Forthcoming and Delivery Bonds, § 23.

    CASE NOTES

    Editor’s note.

    Principal may forfeit bond. —

    It is well settled that the principal in a delivery bond has the legal right of forfeiting his bond by failing to have the property forthcoming on the day appointed for its delivery and sale, which right no court can obstruct. Lusk v. Ramsay, 17 Va. (3 Munf) 417, 1814 Va. LEXIS 10 (1814).

    Equity will treat as a nullity a forfeited forthcoming bond on the execution issued on the judgment whereon there has been a return of “nulla bona,” and regard the lien of the original judgment as still subsisting for the benefit of the creditor. Cooper v. Daugherty, 85 Va. 343 , 7 S.E. 387 , 1888 Va. LEXIS 41 (1888).

    Bond not according to § 8.01-526 creates no lien. —

    A forthcoming bond taken under § 8.01-526 and made payable to the sheriff, instead of to the creditor as required by that section, does not have the force of a judgment against the obligors therein under this section. Lynchburg Trust & Sav. Bank v. Elliott & Co., 94 Va. 700 , 27 S.E. 467 , 1897 Va. LEXIS 127 (1897).

    § 8.01-528. Liability of obligors; how recovery on bond is had.

    The obligors in such forfeited bond shall be liable for the money therein mentioned, with interest thereon from the date of the bond till paid, and the costs. The obligee or his personal representative shall be entitled to recover the same by action or motion.

    History. Code 1950, § 8-452; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 8B M.J. Forthcoming and Delivery Bonds, §§ 23, 41.

    CASE NOTES

    Editor’s note.

    A judgment can be obtained on a forthcoming bond only by action or motion. Allen v. Hart, 59 Va. (18 Gratt.) 722, 1868 Va. LEXIS 32 (1868).

    When action on bond accrues. —

    No right of action accrues upon a forthcoming bond until the forfeiture thereon has been incurred. Lusk v. Ramsay, 17 Va. (3 Munf) 417, 1814 Va. LEXIS 10 (1814).

    Necessity for filing bond on motion. —

    On a motion on a forthcoming bond, it is not essential that the bond shall have been filed in the clerk’s office previous to the motion, but the bond must be so filed when the judgment is given. Lipscomb v. Davis, 31 Va. (4 Leigh) 303, 1833 Va. LEXIS 19 (1833).

    No formal issue need be joined on a motion on a forthcoming bond, as the pleadings may be ore tenus, and the court may pronounce judgment on the evidence. M'Kinster v. Garrott, 24 Va. (3 Rand.) 554, 1825 Va. LEXIS 46 (1825).

    § 8.01-529. When bond returned, how endorsed and recorded by clerk; lien.

    Upon the return of a forthcoming bond to the clerk’s office in the manner prescribed by § 8.01-527 , it shall be the duty of the clerk to endorse thereon the date of such return, and his fee as provided by law for recordation of items specified herein, and to record in a book to be kept by him for the purpose, the date of such bond and of the return endorsed thereon, the amount of the penalty thereof, the amount, the payment whereof will discharge such penalty, and the names of the obligee and obligor to such bond. Such bond, when so returned to the clerk’s office aforesaid, shall constitute a lien on the real estate of the obligor.

    History. Code 1950, § 8-458; 1977, c. 617.

    Cross references.

    As to fee for endorsing and recording returned forthcoming bond, see § 17.1-275 .

    CASE NOTES

    Presumption as to return. —

    There being no evidence that a forthcoming bond was returned to the clerk’s office before the day on which there was an award of execution thereon by the court, it will be regarded as having been returned to the office on that day. Jones v. Myrick, 49 Va. (8 Gratt.) 179, 1851 Va. LEXIS 54 (1851) (decided under prior law).

    § 8.01-530. Remedy of creditor if bond quashed.

    If any forthcoming bond be at any time quashed, the obligee, besides his remedy against the officer, may have such execution on his judgment, or issue such distress warrant, as would have been lawful if such bond had not been taken.

    History. Code 1950, § 8-454; 1977, c. 617.

    § 8.01-531. In what cases forthcoming bond not to be taken.

    No bond for the forthcoming of property shall be taken:

    1. On an execution on a forthcoming bond;
    2. On an execution on a judgment against (i) a treasurer, sheriff, or a deputy of either of them, or a surety or personal representative of either such officer or deputy, for money received by any such officer or deputy, by virtue of his office, (ii) any such officer or his personal representative, in favor of a surety of such officer for money paid or a judgment rendered for a default in office, or (iii) a deputy of any such officer, or his surety or personal representative, in favor of his principal or the personal representative of such principal, for money paid or a judgment rendered for a default in office; or
    3. On any other execution on which the clerk is required by law or by order of court to endorse that “no security is to be taken.”

    History. Code 1950, § 8-455; 1954, c. 333; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-531 is former § 8-455. References to sergeant, constable and coroner have been deleted. The latter office has been abolished and the former two are embraced by the term “sheriff” as defined in § 8.01-2 .

    Michie’s Jurisprudence.

    For related discussion, see 8B M.J. Forthcoming and Delivery Bonds, § 3.

    § 8.01-532. How bond withdrawn from clerk’s office.

    The obligee in a forthcoming bond, or his agent, may, at any time after the record of such bond is made by the clerk, required by § 8.01-529 , withdraw the same from the clerk’s office, leaving a copy thereof attested by the clerk.

    History. Code 1950, § 8-459; 1977, c. 617.

    Chapter 20. Attachments and Bail in Civil Cases.

    Article 1. Attachments Generally.

    § 8.01-533. Who may sue out attachment.

    If any person has a claim, legal or equitable, to (i) any specific personal property, (ii) any debt, including rent, whether the debt is due and payable or not, (iii) damages for breach of any contract, express or implied, or (iv) damages for a wrong, or for a judgment for which no supersedeas or other appeal bond has been posted, he may sue out an attachment therefor on any one or more of the grounds stated in § 8.01-534 . However, if the claim is for a debt not due and payable, no attachment shall be sued out when the only ground for the attachment is that the defendant or one of the defendants is a foreign corporation, or is not a resident of this Commonwealth, and has estate or debts owing to him within this Commonwealth.

    History. Code 1950, § 8-519; 1954, c. 333; 1977, c. 617; 1986, c. 341; 1993, c. 841.

    REVISERS’ NOTE

    Section 8.01-533 is former § 8-519. The significant change is expressed in the addition of “rent” to the enumerated claims for which attachment will lie. The legislative decision was made to include rent, whether due or to become due, among the claims amenable to the attachment process, and to eliminate the former special provisions allowing attachment for future rent contained in former §§ 8-566 to 8-568, which have been deleted.

    Cross references.

    As to necessity of recording attachments as to purchasers, see §§ 8.01-268 , 8.01-269 .

    For provision as to indemnifying bonds on attachment proceedings, see §§ 8.01-367 through 8.01-369 .

    As to bail in criminal cases, see §§ 19.2-119 et seq.

    As to attachments of persons, see § 19.2-190 .

    As to attachments on crops to recover advancements, see § 43-29 .

    Law Review.

    For comment on cumulative remedies under article 9 of the U.C.C., see 14 Wm. & Mary L. Rev. 213 (1972).

    For survey of Virginia law on domestic relations for the year 1975-1976, see 62 Va. L. Rev. 1431 (1976).

    For article discussing the constitutionality of Virginia’s detinue and attachment statutes, see 12 U. Rich. L. Rev. 157 (1977).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 2, 5, 8, 11, 12, 17, 88.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Constitutionality. —

    Fuller v. Hurley, 559 F. Supp. 313, 1983 U.S. Dist. LEXIS 18889 (W.D. Va. 1983).

    Constitutional requirements of due process apply to garnishment and prejudgment attachment procedures whenever officers of the State act jointly with a creditor in securing the property in dispute. Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482, 1982 U.S. LEXIS 140 (1982).

    Procedural scheme created by statute is product of state action. —

    While private misuse of a state statute does not describe conduct that can be attributed to the State, the procedural scheme created by the statute is the product of state action. This is subject to constitutional restraints and properly may be addressed in a 42 U.S.C. § 1983 action, if the private parties may be characterized as “state actors.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482, 1982 U.S. LEXIS 140 (1982).

    A person acts under color of state law in using attachment procedure set forth in this section. Fuller v. Hurley, 559 F. Supp. 313, 1983 U.S. Dist. LEXIS 18889 (W.D. Va. 1983).

    When private party is “state actor” under Fourteenth Amendment. —

    A private party’s joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a “state actor” for purposes of U.S. Const., Amend. XIV. Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482, 1982 U.S. LEXIS 140 (1982).

    Attachment statute is not ambiguous. —

    Virginia attachment statute is as firm and unambiguous as it is constitutionally required to be, given the extensive protection it offers against the prospect of erroneous deprivation. Keystone Bldrs., Inc. v. Floor Fashions of Va., Inc., 829 F. Supp. 181, 1993 U.S. Dist. LEXIS 11276 (W.D. Va. 1993).

    Requirements for 42 U.S.C. § 1983 action based on this section. —

    Where the invoking of this section without the grounds to do so could in no way be attributed to a state rule or a state decision, a cause of action under 42 U.S.C. § 1983 is not stated. Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482, 1982 U.S. LEXIS 140 (1982).

    II.Decisions Under Prior Law.

    Editor’s note.

    The chief purpose of attachment proceedings is to secure a contingent lien on the defendant’s property until the plaintiff can, by appropriate proceedings, obtain a judgment and have such property applied to its satisfaction. Ross v. Peck Iron & Metal Co., 264 F.2d 262, 1959 U.S. App. LEXIS 4263 (4th Cir. 1959).

    The procedure under this article is a hybrid. It is neither a formal action at law nor a bill in equity, but a new statutory procedure. It is in the nature of a proceeding at law, but with equity powers where necessary to attain the ends of justice. Winfree v. Mann, 154 Va. 683 , 153 S.E. 837 , 1930 Va. LEXIS 241 (1930).

    Compliance with requirements must be shown. —

    The remedy by attachment against the estate of a nonresident is wholly statutory, and is harsh in its operation towards the debtor and his creditors, and the proceeding must show on its face that the requirements of this article have been substantially complied with. McAllister v. Guggenheimer, 91 Va. 317 , 21 S.E. 475 , 1895 Va. LEXIS 28 (1895).

    And debt on which action based must be within statute. —

    In a suit by foreign attachment to subject property of a nonresident, it must be shown that the debt on which the proceeding is based is such a one as comes within the meaning of this section, and not merely such a one as might be established, by a suit for the specific performance of a contract, out of which, if enforced, the debt would arise. Barksdale v. Hendree (1856).

    Under this section it is only necessary for the attaching party to have a legal or equitable claim to specific personal property, based upon a debt which is due, as well as one or more of the grounds for an attachment provided in § 8.01-534 . Ross v. Peck Iron & Metal Co., 264 F.2d 262, 1959 U.S. App. LEXIS 4263 (4th Cir. 1959).

    Attachment may be had to set aside fraudulent conveyance. —

    A creditor at large may maintain an attachment suit to set aside as fraudulent a deed conveying real estate, made by his debtor, where both the debtor and his grantee are living out of the State. Peay v. Morrison, 51 Va. (10 Gratt.) 149, 1853 Va. LEXIS 31 (1853).

    Attachment lies for claim on contract made out of State. —

    A claim against a nonresident arising out of a contract of bailment made in the District of Columbia is a claim for a debt for which attachment lies. Peter v. Butler, 28 Va. (1 Leigh) 285, 1829 Va. LEXIS 24 (1829).

    Nonresident creditor may maintain attachment suit. —

    A creditor residing in another state may sue out an attachment in Virginia against his debtor, also residing in the other state, and others residing in Virginia, indebted to, or having in their hands effects of, the debtor. Williamson v. Bowie, 20 Va. (6 Munf) 176, 1818 Va. LEXIS 34 (1818).

    Partner may sue out attachment for partnership debt. —

    One member of a mercantile house to which a debt has been contracted but has not yet fallen due is competent to make complaint on oath and to sue out an attachment against the debtor. Kyle & Co. v. Connelly, 30 Va. (3 Leigh) 719, 1832 Va. LEXIS 23 (1832).

    A guarantor of a debt may maintain a foreign attachment against his principal, before he has paid the debt. Moore v. Holt, 51 Va. (10 Gratt.) 284, 1853 Va. LEXIS 50 (1853).

    Claim must be due to support foreign attachment. —

    A suit in the nature of a foreign attachment cannot be maintained unless the claim asserted is actually due. Unless the bill avers that a debt is due the plaintiff from one who is nonresident of this State, and who has estate and effects in this State, it is demurrable. Cirode v. Buchanan, 63 Va. (22 Gratt.) 205, 1872 Va. LEXIS 14 (1872); Batchelder v. White, 80 Va. 103 , 1885 Va. LEXIS 44 (1885).

    Unless debtor has made, or is about to make, fraudulent conveyance. —

    Attachments cannot be maintained on undue debts, on ground that the debtors are nonresidents, unless they have disposed or are about to dispose, fraudulently, of their effects. Wingo v. Purdy & Co., 87 Va. 472 , 12 S.E. 970 , 1891 Va. LEXIS 96 (1891).

    Effect of personal decree on right to attachment. —

    An attachment was sued out under this section by plaintiff in error, and it was insisted by defendant in error that as the party suing out the attachment had a decree for the amount of his debt upon which he could issue an execution at any time, the trial court had no jurisdiction of the attachment. The affidavit for the attachment stated that the amount of affiant’s debt was as shown by a decree in a certain chancery suit pending in the circuit court. The decree was simply referred to as showing the amount due, and no copy of the decree was filed, and no evidence was offered to show that the plaintiff in error could subject the property in any way save by the attachment. It was held that it could not be presumed from this mere reference that the plaintiff in error had a personal decree against the debtor for the amount of his debt. Deitz v. Whyte, 131 Va. 19 , 109 S.E. 212 , 1921 Va. LEXIS 3 (1921).

    Effect of removal to federal court. —

    Where a judgment at law, rendered by a federal court in another state, was released as a result of fraudulent misrepresentations, and suit was brought in a State court of Virginia, to cancel the release and attach real estate of the debtor to satisfy the judgment, removal of the suit to the federal court by the defendant could not deprive plaintiff of his rights under this section. Miller v. Williams, 258 F. 216, 1919 U.S. App. LEXIS 1186 (4th Cir. 1919).

    CIRCUIT COURT OPINIONS

    Attachment statute does not limit court’s authority to determine legal issues. —

    Attachment statutes, § 8.01-533 et seq., do not limit a court’s authority to determine the legal issues presented in a pleading that both petitions for pre-judgment attachment and pleads a cause at law. Brin v. A Home Come True, Inc., 74 Va. Cir. 45, 2007 Va. Cir. LEXIS 36 (Fairfax County Mar. 23, 2007).

    § 8.01-534. Grounds of action for pretrial levy or seizure of attachment.

    1. It shall be sufficient ground for an action for pretrial levy or seizure or an attachment that the principal defendant or one of the principal defendants:
      1. Is a foreign corporation, or is not a resident of this Commonwealth, and has estate or has debts owing to such defendant within the county or city in which the attachment is, or that such defendant being a nonresident of this Commonwealth, is entitled to the benefit of any lien, legal or equitable, on property, real or personal, within the county or city in which the attachment is.  The word “estate,” as herein used, includes all rights or interests of a pecuniary nature which can be protected, enforced, or proceeded against in courts of law or equity;
      2. Is removing or is about to remove himself out of this Commonwealth with intent to change his domicile;
      3. Intends to remove, or is removing, or has removed the specific property sued for, or his own estate, or the proceeds of the sale of his property, or a material part of such estate or proceeds, out of this Commonwealth so that there will probably not be therein effects of such debtor sufficient to satisfy the claim when judgment is obtained therefor should only the ordinary process of law be used to obtain the judgment;
      4. Is converting, is about to convert or has converted his property of whatever kind, or some part thereof, into money, securities or evidences of debt with intent to hinder, delay, or defraud his creditors;
      5. Has assigned or disposed of or is about to assign or dispose of his estate, or some part thereof, with intent to hinder, delay or defraud his creditors;
      6. Has absconded or is about to abscond or has concealed or is about to conceal himself or his property to the injury of his creditors, or is a fugitive from justice.The intent mentioned in subdivisions 4 and 5 above may be stated either in the alternative or conjunctive.
    2. It shall be sufficient ground for an action for pretrial levy or seizure or an attachment if the specific personal property sought to be levied or seized:
      1. Will be sold, removed, secreted or otherwise disposed of by the defendant, in violation of an obligation to the plaintiff, so as not to be forthcoming to answer the final judgment of the court respecting the same; or
      2. Will be destroyed, or materially damaged or injured if permitted to remain in the possession of the principal defendant or one of the principal defendants or other person or persons claiming under them.
    3. In an action for rent, it also shall be a sufficient ground if there is an immediate danger that the property subject to the landlord’s lien for rent will be destroyed or concealed.

    History. Code 1950, § 8-520; 1954, c. 333; 1977, c. 617; 1993, c. 841.

    Law Review.

    For note discussing prejudgment attachment in the context of consumer due process, see 14 Wm. & Mary L. Rev. 337 (1972).

    For note on bank’s right of setoff in Virginia, see 41 Wash. & Lee L. Rev. 1603 (1984).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 5, 10-16, 22, 25.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Severability. —

    Were court to find the provision which permits attachment on basis that defendant is a foreign corporation or not being a resident of Virginia is unconstitutional, such provision stands independent of the remaining provisions and severing it would in no way thwart the overall intent of the Virginia legislature in enacting the legislation; all other grounds upon which an attachment could issue in Virginia clearly call for exigent circumstances. Keystone Bldrs., Inc. v. Floor Fashions of Va., Inc., 829 F. Supp. 181, 1993 U.S. Dist. LEXIS 11276 (W.D. Va. 1993).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Attachment must be regular on its face. —

    An attachment against an absconding debtor must be regular on its face, and a defect appearing thereon cannot be supplied by averment. Jones v. Anderson, 34 Va. (7 Leigh) 308, 1836 Va. LEXIS 39 (1836).

    Grounds must be stated conjunctively. —

    Where separate and distinct grounds of attachment are stated, and all are relied on, they must be stated conjunctively. They cannot be stated in the alternative. An affidavit which states that either one or another of three separate and distinct grounds of attachment exists does not state the existence of any one of them, and hence is not sufficient basis for an attachment. Northern Neck State Bank, Inc. v. Gilbert Packing Co., 114 Va. 658 , 77 S.E. 451 , 1913 Va. LEXIS 127 (1913).

    B.Foreign Corporations and Nonresident Debtors.
    1.Foreign Corporations.

    Foreign insurance company doing business in State is liable to attachment. —

    An insurance company, incorporated by the laws of another state and having its principal place of business in that state, which has complied with the laws of Virginia in relation to foreign insurance companies doing business in this State, is not a resident of this State, within the meaning of the foreign attachment laws, and its property is liable to attachment as a nonresident. Cowardin v. Universal Life Ins. Co., 73 Va. (32 Gratt.) 445, 1879 Va. LEXIS 79 (1879).

    Lessee of railroad in State does not become domestic corporation. —

    A Maryland corporation, by leasing a railroad in Virginia from a Virginia corporation with the assent of this State did not thereby make itself a corporation of Virginia. Railroad Co. v. Koontz, 104 U.S. 5, 26 L. Ed. 643, 1881 U.S. LEXIS 1962 (1881).

    Nor does foreign corporation appointing local agent. —

    A corporation chartered and organized under the laws of another state, and holding no charter from this State, is a foreign corporation, although it has an agent, appointed under the statutes of this State, upon whom process may be served, and the fact that it is a foreign corporation is all that is required by this section to justify the issuing of an attachment against its property. Cook & Son Mining Co. v. Thompson, 110 Va. 369 , 66 S.E. 79 , 1909 Va. LEXIS 152 (1909).

    2.Nonresident Debtors.

    Section should be strictly construed. —

    This section, allowing attachments against absent debtors, is an innovation on the common law, and should be carefully watched and strictly confined to the ground covered by it. Kelso v. Blackburn, 30 Va. (3 Leigh) 299, 1831 Va. LEXIS 53 (1831); Bank of United States, Inc. v. Merchants Bank, 40 Va. (1 Rob.) 573, 1843 Va. LEXIS 8 (1843).

    Debtor must be actual nonresident. —

    A party cannot be proceeded against by foreign attachment unless he is actually a nonresident of the State at the time the attachment is sued out. Kelso v. Blackburn, 30 Va. (3 Leigh) 299, 1831 Va. LEXIS 53 (1831); Long v. Ryan, 71 Va. (30 Gratt.) 718, 1878 Va. LEXIS 91 (1878).

    And must have debts or estate where attachment is issued. —

    The words “in which the attachment is” mean “in which the attachment proceeding is instituted,” and not “in which the writ of attachment is levied.” Therefore, attachment against a nonresident will not lie where the nonresident has neither debts nor estate within the city or county in which the attachment is issued. Winfree v. Mann, 154 Va. 683 , 153 S.E. 837 , 1930 Va. LEXIS 241 (1930).

    “Residence” defined. —

    The word “residence” as used in this section is to be construed as meaning the act of abiding or dwelling in a place for some continuance of time. Long v. Ryan, 71 Va. (30 Gratt.) 718, 1878 Va. LEXIS 91 (1878).

    There is a wide distinction between domicile and residence. To constitute a domicile two things must concur: first, residence; second, the intention to remain for an unlimited time. Residence is to have a permanent abode for the time being, as contradistinguished from a mere temporary locality of existence. Long v. Ryan, 71 Va. (30 Gratt.) 718, 1878 Va. LEXIS 91 (1878).

    Intention to remain permanently is not essential to residence. —

    While on the one hand the casual or temporary sojourn of a person in the State, whether on business or pleasure, does not make him a resident of the State within the meaning of this section, especially if his personal domicile is elsewhere, so, on the other hand, it is not essential that he should come into the State with the intention to remain here permanently, to constitute him a resident. Long v. Ryan, 71 Va. (30 Gratt.) 718, 1878 Va. LEXIS 91 (1878).

    Dwelling in State for indefinite period is sufficient. —

    One who is dwelling in Virginia with no intention of leaving, being engaged in constructing public improvements under a contract that will occupy him for an indefinite period, is not a nonresident within the attachment laws, although his family lives out of the State. Didier v. Patterson, 93 Va. 534 , 25 S.E. 661 , 1896 Va. LEXIS 108 (1896).

    One who was domiciled in Washington obtained a contract to construct three sections of a railroad in Virginia. He rented out his house in Washington, removed his family to a place on the route of the road, and kept house. Before the work was finished or the time for completing it had arrived, an attachment was sued out against his effects. It was held that he was a resident of the State, and the attachment was quashed. Long v. Ryan, 71 Va. (30 Gratt.) 718, 1878 Va. LEXIS 91 (1878).

    Residence once established is presumed to continue until proved to have been changed, and the burden of proving the change is on him that asserts it. Starke v. Scott, 78 Va. 180 , 1883 Va. LEXIS 26 (1883).

    When residence ceases. —

    A person living in Virginia, determined to remove to another state, and, in pursuance of that purpose, left the place where he had resided, and proceeded directly to the place where he intended to reside. He was held to be a nonresident of the State in the sense of the attachment law. Clark v. Ward, 53 Va. (12 Gratt.) 440, 1855 Va. LEXIS 33 (1855).

    Soldier stationed on federal property does not acquire residence. —

    A person born and domiciled in another state, who comes to Fortress Monroe, which is within the territorial limits of this State, but under the (then) exclusive jurisdiction of the United States, and remains there as an enlisted soldier of the United States, does not thereby acquire a residence in this State so as to defeat the right of a creditor to attach his property in this State on the ground that he is a nonresident. The mere fact that the State has the right to serve process, civil and criminal, in that territory does not affect the personal status of one resident there. The power to serve process on the defendant is not the test of the right to issue an attachment against him as a nonresident. Bank of Phoebus v. Byrum, 110 Va. 708 , 67 S.E. 349 , 1910 Va. LEXIS 113 (1910).

    The property of a fugitive from justice cannot be attached as that of a nonresident, since he, as a wanderer and fugitive, though outside the State can acquire no residence which would make him a nonresident under the attachment laws. Kelso v. Blackburn, 30 Va. (3 Leigh) 299, 1831 Va. LEXIS 53 (1831); Starke v. Scott, 78 Va. 180 , 1883 Va. LEXIS 26 (1883).

    Residence of committee controls attachment against lunatic. —

    In determining the right to sue out an attachment on the ground of the nonresidence of a lunatic, the residence of the committee and not that of the lunatic governs. Sheltman v. Taylor's Comm., 116 Va. 762 , 82 S.E. 698 , 1914 Va. LEXIS 86 (1914).

    Creditor may proceed against nonresident surety. —

    Where the surety to a bond has removed from the country leaving the principal within it, the obligee may proceed against him as an absent defendant and attach any effects or debts he may have in the State. Loop v. Summers, 24 Va. (3 Rand.) 511, 1825 Va. LEXIS 41 (1825).

    Petition for foreign attachment held good. —

    A petition stating as grounds of attachment that the defendant was a nonresident of the State, and that sums of money of the defendant were in the possession of named codefendants in the city in which the attachment was instituted, measured up to the requirements of this section. International Bhd. of Elec. Workers v. Bridgeman, 179 Va. 533 , 19 S.E.2d 667, 1942 Va. LEXIS 245 (1942).

    C.Removal With Intent to Change Domicile.

    Circumstances showing removal with intent to change domicile. —

    The circumstances were sufficient to show that the debtor had gone beyond the limits of the State without an intention to return when the process issued in a foreign attachment was served. Moore v. Holt, 51 Va. (10 Gratt.) 284, 1853 Va. LEXIS 50 (1853).

    Declarations of intention after date of attachment are inadmissible. —

    Upon a motion by the defendant to abate an attachment which has been sued out against his property by the plaintiff, the defendant’s intention and declarations as to leaving the State after the date of the attachment are not admissible as evidence. Wright v. Rambo, 62 Va. (21 Gratt.) 158, 1871 Va. LEXIS 72 (1871).

    D.Removal of Property.

    Removal in due course of trade is not ground for attachment. —

    The shipment of the products of an enterprise out of the State in the due course of trade, where the removal is not permanent and the proceeds are brought back for reinvestment, is not sufficient ground for an attachment. Clinch River Mineral Co. v. Harrison, 91 Va. 122 , 21 S.E. 660 , 1895 Va. LEXIS 12 (1895).

    E.Fraudulent Assignment or Disposition of Property.

    Every assignment by a debtor of his property must of necessity work some delay as to other creditors in the collection of their claim, but this is not such delay as is meant by this section. Breeden v. Peale, 106 Va. 39 , 55 S.E. 2 , 1906 Va. LEXIS 105 (1906).

    Intent to hinder, delay or defraud is controlling factor. —

    However difficult the proof may be, even against a purchaser for full value, and although a debtor has a right to sell his property and the creditor the right to resort to the substituted property, if it can be made to appear that a conveyance by a debtor was made by him with an intent to hinder, delay and defraud his creditors and this intent was participated in by the grantee, the transaction comes within the purview of this section relating to attachments, and is void as to creditors. Breeden v. Peale, 106 Va. 39 , 55 S.E. 2 , 1906 Va. LEXIS 105 (1906).

    Intent must be proved. —

    It is not enough that creditors believe and allege the existence of fraudulent intent. They must prove its existence. Wingo v. Purdy & Co., 87 Va. 472 , 12 S.E. 970 , 1891 Va. LEXIS 96 (1891).

    Failure to record deed of trust is not fraudulent. —

    The mere failure of a bank to record a deed of trust given by a defendant to secure a note, in the absence of evidence of a request or desire on the part of the defendant that the deed should not be recorded, cannot be construed as an attempt on the part of the defendant to hinder or defraud creditors, and is no ground for an attachment. Burruss v. Trant, 88 Va. 980 , 14 S.E. 845 , 1892 Va. LEXIS 59 (1892).

    Facts not justifying attachment. —

    When a debtor promised to secure his debt, and violated his promise, and appropriated the proceeds of the property, sold at a fair price, to the satisfaction of claims of other creditors, and his purpose to make that sale was not concealed, the facts did not make out the case stated in the affidavit for an attachment — that the defendant had disposed of, or was about to dispose of, his estate, or some part thereof, with intent to hinder, delay or defraud his creditors. Breeden v. Peale, 106 Va. 39 , 55 S.E. 2 , 1906 Va. LEXIS 105 (1906).

    § 8.01-535. Jurisdiction of attachments; trial or hearing of issues.

    Except as provided in § 16.1-77 the jurisdiction of attachments under this chapter shall be in the circuit courts. The trial or hearing of the issues, except as otherwise provided, shall be the same, as near as may be, as in actions in personam.

    History. Code 1950, § 8-521; 1954, c. 333; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 2, 21.

    CASE NOTES

    Editor’s note.

    By this section the legislature undertook to simplify the procedure and practice in attachment, and § 8.01-549 shows that it never intended to exclude the equity practice from the proceedings. The plain purpose was to simplify the form of procedure, and allow the courts to use their equitable or legal modes of practice as would best promote a fair trial and justice. Rust v. Indiana Flooring Co., 151 Va. 845 , 145 S.E. 321 , 1928 Va. LEXIS 277 (1928).

    Court’s jurisdiction is limited and special. —

    An attachment is purely a statutory remedy. The jurisdiction thereof is a special and limited jurisdiction, and a court, even of general jurisdiction, cannot proceed by attachment unless the power rests upon express statutory authority. In order that a court may have jurisdiction to issue any particular attachment, it is not enough that it be a court upon which the statute has conferred the power to use the process of attachment, but, conceding its power to use the process of attachment, the court must have before it a case in which the use of such process is authorized by the statute. Winfree v. Mann, 154 Va. 683 , 153 S.E. 837 , 1930 Va. LEXIS 241 (1930); Fauquier Nat'l Bank v. Hazelwood Sav. & Trust Co., 165 Va. 259 , 182 S.E. 566 , 1935 Va. LEXIS 293 (1935).

    § 8.01-536. Pleadings in attachment.

    No pleading on behalf of the plaintiff shall be necessary except the petition mentioned in § 8.01-537 . The principal defendant, and any other defendant who seeks to defeat the petitioner’s attachment, may demur to the petition, issue on which demurrer shall be deemed to be joined; but if such demurrer be overruled, such defendant shall answer the petition in writing. No replication shall be necessary to such answer. The answer shall be sworn to by such defendant, or his agent. Any other defendant may answer the petition, under oath, and the cause shall be deemed at issue as to him, if he denies any of the allegations of the petition, without any replication. Answers under this section shall not have the effect of evidence for the defendant.

    History. Code 1950, § 8-523; 1977, c. 617.

    Cross references.

    As to amendment of pleadings in attachment, see §§ 8.01-543 , 8.01-545 .

    § 8.01-537. Petition for attachment; costs, fees and taxes.

    1. Every attachment shall be commenced by a petition filed before a clerk of a circuit or general district court of, or magistrate serving, the county or city in which venue is given by subdivision 11 of § 8.01-261 . If it is sought to recover specific personal property, the petition shall state (i) the kind, quantity, and estimated fair market value thereof, (ii) the character of estate therein claimed by the plaintiff, (iii) the plaintiff’s claim with such certainty as will give the adverse party reasonable notice of the true nature of the claim and the particulars thereof and (iv) what sum, if any, the plaintiff claims an entitlement to recover for its detention. If it is sought to recover a debt or damages for a breach of contract, express or implied, or damages for a wrong, the petition shall set forth (i) the plaintiff’s claim with such certainty as will give the adverse party reasonable notice of the true nature of the claim and the particulars thereof, (ii) a sum certain which, at the least, the plaintiff is entitled to, or ought to recover, and (iii) if based on a contract and if the claim is for a debt not then due and payable, at what time or times the same will become due and payable. The petition shall also allege the existence of one or more of the grounds mentioned in § 8.01-534 , and shall set forth specific facts in support of the allegation. The petition shall ask for an attachment against the specific personal property mentioned in the petition, or against the estate, real and personal, of one or more of the principal defendants, or against the estate, real and personal, of one or more of the principal defendants, or against both the specific personal property and the estate of such defendants, real or personal. The petition shall state whether the officer is requested to take possession of the attached tangible personal property. The petition shall be sworn to by the plaintiff or the plaintiff’s agent, or some other person cognizant of the facts therein stated.
    2. The plaintiff praying for an attachment shall, at the time the petition is filed, pay to the magistrate or clerk of the court to which the return is made the proper costs, fees and taxes, and in the event the plaintiff fails to do so, the attachment shall not be issued.

    History. Code 1950, §§ 8-524, 8-528; 1954, cc. 333, 622; 1973, c. 545; 1977, c. 617; 1978, c. 418; 1984, c. 646; 1993, c. 841; 2008, cc. 551, 691; 2015, c. 639.

    REVISERS’ NOTE

    Section 8.01-537 has made certain changes of language in order to clarify the provisions of former § 8-524, and former § 8-528 has been added as a subsection, changing the reference to “justice of the peace” to that of “magistrate.”

    Cross references.

    As to amendment of petition, see §§ 8.01-543 , 8.01-545 .

    As to affidavits by corporations and agents generally, see § 49-7 .

    The 2008 amendments.

    The 2008 amendments by cc. 551 and 691 are identical, and substituted “a judge or clerk of a circuit or general district court of, or magistrate serving” for “a judge, magistrate or clerk of a circuit or general district court of” in the first sentence of subsection A.

    The 2015 amendments.

    The 2015 amendment by c. 639 in subsection A, deleted “judge or” preceding “clerk of a circuit” in the first sentence; substituted “an entitlement” for “he is entitled” in clause (iv) of the second sentence, and substituted “the plaintiff’s” for “his” in the last sentence; and in subsection B, substituted “the petition is filed, pay to the magistrate or” for “that he files his petition, pay to the” and “the plaintiff fails” for “of his failure.”

    Law Review.

    For note on bank’s right of setoff in Virginia, see 41 Wash. & Lee L. Rev. 1603 (1984).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 2, 28, 47.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Constitutionality. —

    Fuller v. Hurley, 559 F. Supp. 313, 1983 U.S. Dist. LEXIS 18889 (W.D. Va. 1983).

    Petition dismissed where debtor was not owner or transferred property before debt arose. —

    The allegation that the debtor transferred the property to a purchaser “with intent to hinder, delay or defraud its creditor” was groundless where the debtor did not own the property, since the debtor could not transfer that which it never owned. Moreover, even if there had been a transfer from the debtor to the purchaser concerning the property, where it occurred before any indebtedness to the creditor, there could not exist any intent to defraud the creditor. Thus, there was no error in the trial court’s dismissal of the petition to attach the property. Allsbrook v. Azalea Radiator Serv., Inc., 227 Va. 600 , 316 S.E.2d 743, 1984 Va. LEXIS 229 (1984).

    II.Decisions Under Prior Law.

    Editor’s note. —

    The requirements of this section and § 8.01-539 are plain and unambiguous, and until it appears that its mandatory provisions have been met the court is without jurisdiction to exercise any power over the property sought to be attached. Fauquier Nat'l Bank v. Hazelwood Sav. & Trust Co., 165 Va. 259 , 182 S.E. 566 , 1935 Va. LEXIS 293 (1935).

    And they are mandatory. —

    This section and § 8.01-539 recognize certain rights of the debtor and enjoin upon the creditor certain procedural requirements which are essentially mandatory for the purpose of safeguarding these rights. Unless it affirmatively appears that such steps were taken, a valid lien cannot be acquired. Fauquier Nat'l Bank v. Hazelwood Sav. & Trust Co., 165 Va. 259 , 182 S.E. 566 , 1935 Va. LEXIS 293 (1935).

    Purpose of subsection B is to insure payment of tax. —

    The purpose of subsection B is to insure promptly and certainly the payment of the tax, and it has no relation to the right or procedure of the action. Jenkins v. Faulkner, 174 Va. 43 , 4 S.E.2d 788, 1939 Va. LEXIS 139 (1939).

    Subsection B is not intended to penalize a litigant. Jenkins v. Faulkner, 174 Va. 43 , 4 S.E.2d 788, 1939 Va. LEXIS 139 (1939).

    Dismissal is in nature of nonsuit. —

    When an attachment is dismissed ipso facto for failure to pay the writ tax as required by subsection B, the dismissal is in the nature of a nonsuit. Jenkins v. Faulkner, 174 Va. 43 , 4 S.E.2d 788, 1939 Va. LEXIS 139 (1939).

    It does not extinguish right of action. —

    The dismissal of an attachment under this section for failure to pay the writ tax within the time prescribed only bars proceedings on that attachment, and does not extinguish the right of action. Senter v. Lively, 160 Va. 417 , 168 S.E. 328 , 1933 Va. LEXIS 222 (1933).

    The word “thereon” can only refer to the attachment, not to the right of action. The latter remains as if no proceedings of any kind had been instituted. Senter v. Lively, 160 Va. 417 , 168 S.E. 328 , 1933 Va. LEXIS 222 (1933).

    Court may allow payment to clerk in open court. —

    Upon a motion to dismiss an attachment proceeding for the failure of the plaintiff to comply with the provisions of subsection B, it was not error for the court to allow the plaintiff to pay the writ tax to the clerk in open court and to overrule the motion to dismiss. Jenkins v. Faulkner, 174 Va. 43 , 4 S.E.2d 788, 1939 Va. LEXIS 139 (1939).

    OPINIONS OF THE ATTORNEY GENERAL

    Advance legal fees may be garnished. —

    As advance legal fees remain the property of a judgment debtor, a judgment creditor may garnish unearned advance fees paid by a judgment debtor to his or her attorney. See opinion of Attorney General to The Honorable William D. Heatwole, Judge, General District Court for the Twenty-Fifth District, 01-067 (2/28/02).

    § 8.01-537.1. Plaintiff to file bond.

    1. The plaintiff or someone for him shall, at the time of suing out an attachment or other pretrial levy or seizure, give bond. The fact that bond has been given shall be endorsed on the process, or certified by the clerk to the serving officer.  If certified by the clerk, the serving officer shall return the certificate with the process.  The bond shall be a bond with approved surety, a cash bond or a property bond.
    2. If the plaintiff seeks only pretrial levy on property and a bond with approved surety or cash bond is posted, the amount of the bond shall be at least the estimated fair market value of the property to be levied.  If a property bond is posted, the amount of the bond shall be at least double the estimated fair market value of the property to be levied.
    3. If the plaintiff seeks pretrial seizure of property, the amount of the bond shall be at least double the estimated fair market value of the property to be seized.
    4. The bond shall contain a condition to pay all costs and damages which may be awarded against the plaintiff, or sustained by any person, by reason of a wrongful levy or seizure.

    History. 1984, c. 646; 1993, c. 841.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 67.

    § 8.01-538. Attachment of ships, boats and other vessels of more than twenty tons.

    No attachment against any ship, boat, or other vessel of more than twenty tons, shall issue unless the plaintiff or someone in his behalf, shall first establish, to the satisfaction of the court in which he files his petition for attachment that he has a reasonable expectation of recovering an amount exclusive of all costs, equal to at least one-half the damages demanded in the petition for attachment. Reasonable notice of appearance before the court shall be given the owner, agent or master of said vessel, and at the time of the appearance the court shall determine the amount of such reasonable expectation of recovery and the amount of bond necessary to secure the release of the vessel if and when a writ be levied in accordance with this section.

    No attachment issued in violation of the provisions of this section shall create a valid lien upon the property sought to be attached, and no levy made under authority thereof shall be of any effect.

    History. Code 1950, § 8-524.1; 1954, c. 254; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 20.

    § 8.01-539. Who made defendants.

    A person against whom the plaintiff is asserting the claim shall be made a defendant to the petition, and shall be known as a principal defendant. There shall also be made a defendant any person indebted to or having in his possession property, real or personal, belonging to a principal defendant, which is sought to be attached. There may also be made a defendant any person claiming title to, and interest in, or a lien upon the property sought to be attached. A defendant, other than a principal defendant, shall be known as a codefendant.

    History. Code 1950, § 8-525; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 2, 27, 89, 97, 103.

    CASE NOTES

    This section on joining lienholders is permissive. Eastern Indem. Co. v. J.D. Conti Elec. Co., 573 F. Supp. 1036, 1983 U.S. Dist. LEXIS 12133 (E.D. Va. 1983).

    § 8.01-540. Issuance of attachment; against what attachment to issue.

    A judge of, or a magistrate serving, the court in which a petition for attachment is filed shall make an ex parte review of the petition. The judge or magistrate shall issue an attachment in accordance with the prayer of the petition only upon a determination that (i) there is reasonable cause to believe that grounds for attachment may exist and (ii) the petition complies with §§ 8.01-534 , 8.01-537 , and 8.01-538 . The judge or magistrate may receive evidence only in the form of a sworn petition which shall be filed in the office of the clerk of the court. If the plaintiff seeks the recovery of specific personal property, the attachment may be (i) against such property and against the principal defendant’s estate for so much as is sufficient to satisfy the probable damages for its detention or (ii) at the option of the plaintiff, against the principal defendant’s estate for the value of the specific property and the damages for its detention. If the plaintiff seeks to recover a debt or damages for the breach of a contract, express or implied, or damages for a wrong, the attachment shall be against the principal defendant’s estate for the amount specified in the petition as that which the plaintiff at the least is entitled to or ought to recover.

    If the attachment is issued by a magistrate, it shall be returnable as prescribed by § 8.01-541 . The magistrate shall promptly return to the clerk’s office of the court to which the attachment is returnable the petition and the bond, if any, filed before him. The proceedings thereafter shall be the same as if the attachment had been issued by a judge.

    History. Code 1950, § 8.526; 1954, c. 254; 1977, c. 617; 1984, c. 646; 1993, c. 841; 2008, cc. 551, 691.

    The 2008 amendments.

    The 2008 amendments by cc. 551 and 691 are identical, and substituted “A judge of, or a magistrate serving, the court” for “A judge or magistrate of the court” at the beginning of the first paragraph.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 28, 41.

    CASE NOTES

    Constitutionality. —

    Fuller v. Hurley, 559 F. Supp. 313, 1983 U.S. Dist. LEXIS 18889 (W.D. Va. 1983).

    Mere issuance of attachment creates no lien. —

    The mere issuance of an attachment under this and the following sections creates no lien on the real estate, since, in order to create a lien, it is necessary for the officer to cause his return to show that he has made a levy, and for the return to mention and describe the real property with such substantial accuracy as to cause it to be readily identified. Harris v. Lipson, 167 Va. 365 , 189 S.E. 349 , 1937 Va. LEXIS 284 (1937) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Prejudgment attachment not justified. —

    Defendant’s request that the court order him to pay the purchase price for plaintiff’s shares into escrow for a potential setoff pending the resolution of the company’s counterclaims against plaintiff was denied as defendant did not produce any evidence that would justify a prejudgment attachment of the proceeds of plaintiff’s stock sale to defendant. Jones v. A Town Smoke House & Catering Inc., 106 Va. Cir. 168, 2020 Va. Cir. LEXIS 478 (Waynesboro Oct. 19, 2020).

    § 8.01-541. To whom attachments directed; when and where returned.

    Any attachment issued under this chapter may be directed to the sheriff of any county or city. Except when otherwise provided, it shall be returnable to the office of the clerk of court wherein the petition has been filed not more than thirty days from its date of issuance.

    History. Code 1950, § 8-527; 1954, c. 333; 1977, c. 617; 1993, c. 841.

    REVISERS’ NOTE

    Section 8.01-541 is based on former § 8-527. References to “terms of court” have been eliminated, and appropriate directions for the return have been added.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 41, 45, 106.

    § 8.01-542. Issue and execution of attachment on any day.

    Such attachment may be issued or executed on any day, including a Sunday or holiday.

    History. Code 1950, § 8-529; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-542 extends the provisions of former § 8-529 to permit the issuance of an attachment not only on a Sunday, but on any holiday, and upon any of the grounds specified in § 8.01-534 .

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 41.

    § 8.01-543. Issue of other attachments on original petition.

    Upon the written application of the plaintiff, his agent or attorney, other attachments founded on the original petition may be issued from time to time by the clerk of the court in which the original attachment is pending, and the same may be directed, executed, and returned in like manner as an original attachment. However, the clerk shall not issue an attachment where new or additional grounds of attachment are relied upon or where any ship, boat or vessel of more than twenty tons is sought to be attached.

    If new or additional grounds of attachment are relied on, the plaintiff may amend his petition in accordance with Rule of Court 1:8 according to the facts and swear to the same. Except as otherwise provided in this section, an additional attachment as prayed for shall be issued by a judge or magistrate only upon his determination that (i) there is reasonable cause to believe that the grounds for attachment may exist and (ii) that the amended petition complies with §§ 8.01-534 and 8.01-537 . Where any ship, boat, or other vessel of more than twenty tons is sought to be attached, a judge or magistrate shall issue the additional attachment only on his determination that § 8.01-538 has been complied with. The cause shall proceed, under the provisions of this chapter, upon the petition as amended.

    The court shall adjudge the costs of such attachments as it deems proper.

    The following, or its equivalent, shall be a sufficient form of application for an additional attachment:

    To A.B., clerk of the . . . . . . . . . . . . . court of . . . . . . . . . . . county (or city): In the case

    of . . . . . . . . . . . . . . v. . . . . . . . . . . . . . . , on an attachment, an additional attachment and

    summons is requested to be issued against . . . . . . . . . . . . . . . . . . X.Y. (or X.Y. by H.,

    attorney or agent, as the case may be).

    History. Code 1950, § 8-530; 1977, c. 617; 1984, c. 646.

    § 8.01-544. When attachment not served other attachments may issue; order of publication.

    When an attachment is returned not served on a principal defendant, whether levied on property or not, further attachments and summonses may be issued until service is obtained on him, if he be a resident of the Commonwealth. If for any cause service cannot be had in the Commonwealth, upon affidavit of that fact, an order of publication shall be made against him.

    History. Code 1950, § 8-531; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 48.

    CASE NOTES

    Jurisdiction is not acquired by service on garnishee. —

    Jurisdiction cannot be acquired of the fund attached by service of process on the garnishee, where no legal service of notice is had on the nonresident defendant. Dorr v. Rohr, 82 Va. 359 , 1886 Va. LEXIS 44 (1886) (decided under prior law).

    Or by seizure of property attached. —

    A garnishee in a foreign attachment is not the agent and representative of his creditor, the principal defendant; hence a seizure of the res, or attached fund, is not notice to the nonresident defendant, and cannot give jurisdiction. Dorr v. Rohr, 82 Va. 359 , 1886 Va. LEXIS 44 (1886) (decided under prior law).

    § 8.01-545. Amendments; formal defects.

    Such amendments shall be allowed of the petition, answer and of any of the other proceedings in the attachment as shall be conducive to the attainment of the ends of substantial justice, and upon such terms as to continuance and costs as may seem proper. An amendment when made shall as against the principal defendant and as to claims against him existing at the time the attachment was issued relate back to the time of the levy of the attachment, unless otherwise directed. No attachment shall be quashed or dismissed for mere formal defects.

    History. Code 1950, § 8-532; 1977, c. 617.

    Cross references.

    As to amendment of pleadings generally, see § 8.01-273 .

    As to amendment when variance appears between evidence and allegations, see § 8.01-377 .

    For rule of court as to amendment of pleadings after filing, see Rule 1:8.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 28, 30, 81.

    CASE NOTES

    Section is to be liberally construed. —

    Section 8.01-377 and this section allow substantial amendments in the pleadings for the promotion of justice, and they have always been liberally construed, as remedial in purpose. Russell Lumber Co. v. Thompson, 137 Va. 386 , 119 S.E. 117 , 1923 Va. LEXIS 163 (1923) (see Dillow v. Stafford, 181 Va. 483 , 25 S.E.2d 330 (1943); Provident Life & Accident Ins. Co. v. Walker, 190 Va. 1016 , 59 S.E.2d 126 (1950). The above cited cases were decided under prior law).

    But it does not destroy effect of §§ 8.01-537 and 8.01-539 . —

    The General Assembly, by the provisions of this section, did not intend to wipe away and destroy the mandatory procedural requirements of §§ 8.01-537 and 8.01-539 . If it had been the legislative intent to abrogate the requirements of those sections, and especially the requirement in § 8.01-539 that a party in possession of real estate must be made a party defendant, then surely the legislature would have done so by some express language free from doubt as to its meaning. Fauquier Nat'l Bank v. Hazelwood Sav. & Trust Co., 165 Va. 259 , 182 S.E. 566 , 1935 Va. LEXIS 293 (1935) (decided under prior law).

    Article 2. Summons; Levy; Lien; Bonds, etc.

    § 8.01-546. What attachment to command; summons.

    Every attachment sued out against specific personal property shall command the sheriff or other officer to whom it may be directed to attach the specific property claimed in the petition, and so much more of the real and personal property of the principal defendant as shall be necessary to cover the damages for the detention of the specific property sued for and the costs of the attachment. Every other attachment shall command the sheriff or other officer to whom it may be directed to attach the property mentioned and sought to be attached in the petition, if any, and so much of the lands, tenements, goods, chattels, moneys and effects of the principal defendant not exempt from execution as will be sufficient to satisfy the plaintiff’s demand, and, in case of tangible personal property, taken possession of under § 8.01-551 , to keep the same safely in his possession to satisfy any judgment that may be recovered by the plaintiff in such attachment.

    Every attachment sued out under this section shall also command the sheriff or other officer to summon the defendant or defendants, if he or they are found within his county or city, or any county or city wherein he may have seized property under and by virtue of such writ, to appear and answer the petition for the attachment.

    Each copy of the summons shall be issued together with a form for requesting a hearing on a claim of exemption from levy or seizure as provided in § 8.01-546.1 . Both documents shall be served on each defendant.

    History. Code 1950, § 8-533; 1977, c. 617; 1986, c. 341.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 48.

    CASE NOTES

    Effect of defendant’s appearance where not summoned. —

    The only purpose of the command to the officer to summon a defendant is to bring the defendant into court and allow and require him to make his defense, if he has any. By voluntarily coming into the cause, contesting the plaintiff’s claim and pleading counterclaim and setoff, without reservation, the defendant does for himself all that this section requires that the plaintiff do for him. Montague Mfg. Co. v. Ten Weeges, 297 F. 221, 1924 U.S. App. LEXIS 2810 (4th Cir. 1924) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Effect of attachment claim combined with legal claims. —

    Where plaintiff’s complaint sought legal remedies against some defendants and pre-judgment attachment of another defendant’s property, defendants that were not subject to the attachment count were not entitled to the benefit of the heightened service of process requirements provided by § 8.01-546 . Brin v. A Home Come True, Inc., 74 Va. Cir. 45, 2007 Va. Cir. LEXIS 36 (Fairfax County Mar. 23, 2007).

    Service held proper. —

    As the sheriff’s return of service indicated that a petition for attachment and a claim of exemption form was served on defendants, and the court took judicial notice that those defendants received a summons from the sheriff to appear and answer the petition for attachment, because every request for service issued to and served by the sheriff included such a summons, defendants were properly served with process pursuant to § 8.01-546 . Brin v. A Home Come True, Inc., 74 Va. Cir. 45, 2007 Va. Cir. LEXIS 36 (Fairfax County Mar. 23, 2007).

    § 8.01-546.1. Exemption claims form.

    The form for requesting a hearing or a claim for exemption from levy or seizure shall be designed by the Supreme Court and provided to all courts which may issue attachments and to all magistrates.

    History. 1986, c. 341.

    § 8.01-546.2. Hearing on claim of exemption from levy or seizure.

    A judgment debtor shall have the right to a hearing on his claim of exemption from levy or seizure. If a defendant files a request for a hearing, the clerk shall (i) schedule a hearing no later than ten business days from the date that the request is filed with the court, and (ii) notify the parties of the date, time and place of hearing and the exemption being claimed. This hearing may be combined with a hearing pursuant to § 8.01-119 or § 8.01-568 or with a trial on the merits if held within the ten-business day limitation.

    The clerk shall notify the parties and the sheriff of the date, time and place of hearing and the exemption being claimed. The court may stay the sale pending this hearing by interlocutory order. The sheriff shall comply with the writ unless and until ordered otherwise in writing by the court. The order shall take effect upon receipt by the sheriff. The clerk is required to provide a copy of the order or the hearing disposition to the sheriff only if the writ or levy is dismissed or is modified by the judge. The court shall release all exempt property from the judgment creditor’s lien and order the sheriff to return such exempt property to the judgment debtor.

    History. 1986, c. 341.

    § 8.01-547. Attachment against remainders.

    If the attachment be against a principal defendant who is a nonresident or an absconding debtor, the attachment may also direct the sheriff or other officer to levy the same on any remainder, vested or contingent, of the principal defendant, or so much thereof as may be sufficient to pay the amount for which it issues. But no such remainder shall be sold until it becomes vested. A judgment, however, ascertaining the amount due the plaintiff may be docketed as other judgments are docketed, but unless it be a personal judgment, it shall be a lien only on the property levied on.

    History. Code 1950, § 8-534; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 19.

    § 8.01-548. Who may levy attachment and on what.

    An attachment may be levied upon any estate of the defendant, whether the same be in the county or city in which the attachment issued, or in any other, either by the officer of the county or city wherein the attachment issued, or by the officer of the county or city where the estate is.

    History. Code 1950, § 8-535; 1977, c. 617.

    Law Review.

    For article on fraudulent conveyances and preferences in Virginia, see 36 Wash. & Lee L. Rev. 51 (1979).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 18, 20.

    CASE NOTES

    Editor’s note.

    Attachment may be levied on any visible and tangible effects of a nonresident debtor in his actual or constructive possession, in the common-law mode, as in the case of an execution. Dorrier v. Masters, 83 Va. 459 , 2 S.E. 927 , 1887 Va. LEXIS 92 (1887).

    But only property within State may be attached. —

    An attachment against a nonresident can be levied only upon his estate and effects within this State. Batchelder v. White, 80 Va. 103 , 1885 Va. LEXIS 44 (1885).

    Creditor of decedent may attach against nonresident heirs. —

    A creditor of a deceased debtor may proceed by foreign attachment against heirs residing abroad to subject land or its proceeds, in the State, descended to them from the debtor. Carrington v. Didier, 49 Va. (8 Gratt.) 260, 1851 Va. LEXIS 61 (1851).

    And a legatee’s interest in the hands of an executor could be attached. Anderson v. DeSoer, 47 Va. (6 Gratt.) 363, 1849 Va. LEXIS 57 (1849); Vance v. McLaughlin, 49 Va. (8 Gratt.) 289, 1851 Va. LEXIS 64 (1851) (see also Moores v. White, 44 Va. (3 Gratt.) 139 (1846)).

    Money on special deposit may be attached. —

    Money was left with a person who was a member of a firm, on a special deposit, and in his absence it was entered on the books of the firm to the credit of the depositor, and paid out by the firm for their own uses, they paying the depositor’s checks upon it, by checks in their name upon the bank. An attachment was served upon the firm as garnishees in a suit against the depositor, the summons being served on the other member of the firm. It was held that the attachment bound the money in the hands of the firm. Pulliam v. Aler, 56 Va. (15 Gratt.) 54, 1859 Va. LEXIS 2 (1859).

    As may debts due by open account. —

    Debts due a nonresident debtor by an open account may be attached in the hands of resident garnishees. Porter v. Young, 85 Va. 49 , 6 S.E. 803 , 1888 Va. LEXIS 10 (1888).

    Shares in joint stock company are liable to attachment. —

    The shares of a stockholder in a joint stock company, incorporated by and conducting its operations, in whole or in part, in the State, are such estate as is liable to be attached. C & O R.R. v. Paine & Co., 70 Va. (29 Gratt.) 502, 1877 Va. LEXIS 39 (1877); Shenandoah Valley R.R. v. Griffith, 76 Va. 913 , 1882 Va. LEXIS 93 (1882).

    Private creditor of partner may attach interest in partnership. —

    Under this section a private creditor of one member of a firm may ordinarily attach the interest of the debtor partner in the partnership. Kern v. Wyatt, 89 Va. 885 , 17 S.E. 549 , 1893 Va. LEXIS 117 (1893).

    Vendor’s creditor cannot attach realty in possession of purchaser. —

    A house sold by parol contract to a purchaser who has paid the purchase money and taken possession of the property cannot be taken by an attachment against the vendor as an absent debtor and subjected to the payment of his debt. Hicks v. Riddick, 69 Va. (28 Gratt.) 418, 1877 Va. LEXIS 78 (1877).

    Or goods transferred by indorsement of bill of lading. —

    Goods transferred by indorsement of a bill of lading to a bank, which pays the draft of the shipper for the value of the goods, are not attachable by creditors of the shipper. Buckeye Nat'l Bank v. Huff, 114 Va. 1 , 75 S.E. 769 , 1912 Va. LEXIS 105 (1912).

    Property held by debtor as trustee cannot be attached. —

    Where crops are produced on the lands of another under an agreement that the landowner is to have a certain share and the producer is to have the residue, and the whole crop is shipped to market in the name of the landowner, who is to pay over to the producer his share of the proceeds thereof, and the crops are marked in the name of the producer and are capable of identification, the landowner is a mere trustee, and the proceeds of the crops are not subject to attachment by creditors of the landowner. Jones v. Crumpler, 119 Va. 143 , 89 S.E. 232 , 1916 Va. LEXIS 86 (1916).

    Nor may property held by trustee under deed of trust. —

    An attachment was served upon trustees in a deed of trust given for the payment of certain debts, among them the debts due to the plaintiff in the attachment. It was held that there could be no surplus in the hands of the trustees until the debts secured by the deed were paid, and consequently there was nothing in their hands liable to the attachment. Clark v. Ward, 53 Va. (12 Gratt.) 440, 1855 Va. LEXIS 33 (1855).

    Funds in hands of public officer are not liable to attachment. —

    Funds in the hands of the State Treasurer, which he holds by law in pursuance of a trust, are not liable to attachment at the suit of an individual. Rollo v. Andes Ins. Co., 64 Va. (23 Gratt.) 509, 1873 Va. LEXIS 50 (1873); Buck v. Guarantors' Liab. Indem. Co., 97 Va. 719 , 34 S.E. 950 , 1900 Va. LEXIS 126 (1900).

    But attachment lies against municipal corporation. —

    A municipal corporation may be attached for a debt due to one of its creditors just as a natural person may be. Such a proceeding is not contrary to the public policy of this State. Portsmouth Gas Co. v. Sanford, 97 Va. 124 , 33 S.E. 516 , 1899 Va. LEXIS 19 (1899).

    § 8.01-549. Restraining order or receiver.

    The court may interpose by a restraining order, or the appointment of a receiver, or otherwise, to secure the forthcoming of the specific property sued for, and so much other estate as will probably be required to satisfy any further order that may be made in the proceedings.

    History. Code 1950, § 8-536; 1977, c. 617.

    § 8.01-550. How attachment levied.

    An attachment may be levied as follows:

    On tangible personal property in possession of a principal defendant, whether such possession be actual or constructive, it may be levied as at common law or by delivering a copy of the attachment to such principal defendant or, if possession is requested in the petition, then by taking possession of such personal property;

    On choses in action or on tangible personal property in possession of any defendant other than the principal defendant, it may be levied by delivering a copy of the attachment to the person indebted to the principal defendant or having possession of the property belonging to him; and

    On real estate, it may be levied by such estate being mentioned and described in an endorsement on the attachment by the officer to whom it is delivered for service to the following effect:

    “Levied on the following real estate of the defendant A. (or defendants A. and B.), to-wit: (here describe the real estate) this the day of at o’clock. E.F., sheriff (or other officer),”

    Click to view

    and by service of the attachment on the person, if any, in possession of such real estate.

    Wherever a copy of an attachment is required or allowed to be served on any person, natural or artificial, it may be served as a notice is served under §§ 8.01-296 , 8.01-299 , 8.01-300 or 8.01-301 , as the case may be.

    History. Code 1950, § 8-537; 1977, c. 617; 1984, c. 646.

    Cross references.

    As to levy on property held under process, see § 8.01-558 .

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 18, 20, 43, 48.

    CASE NOTES

    Editor’s note.

    The levy of the attachment is the foundation of the suit. If the property attached is not the defendant’s property, the court is without jurisdiction. Culbertson v. Stevens, 82 Va. 406 , 4 S.E. 607 , 1886 Va. LEXIS 51 (1886).

    Actual seizure is not essential. —

    To constitute an effectual levy, it is not essential that the officer make an actual seizure. If he have the goods in his view and power, and note on the writ the fact of his levy thereon, this will in general suffice. Bullitt v. Winstons, 15 Va. (1 Munf) 269, 1810 Va. LEXIS 54 (1810); Dorrier v. Masters, 83 Va. 459 , 2 S.E. 927 , 1887 Va. LEXIS 92 (1887).

    Inventory need not be made at time of levy. —

    If an officer, without committing a trespass, enters the premises and announces his levy by acts and words, the goods are then in his control, even though an inventory is not made at the time. First Nat'l Bank v. Johnson, 183 Va. 227 , 31 S.E.2d 581, 1944 Va. LEXIS 145 (1944).

    Officer may levy on personalty in possession of third person. —

    An officer has a right to levy upon tangible personal property even though the possession of such property is in the hands of a third person not a party to the suit. First Nat'l Bank v. Johnson, 183 Va. 227 , 31 S.E.2d 581, 1944 Va. LEXIS 145 (1944).

    Return must show realty levied on as property of defendant. —

    The return must show that the attachment was levied upon the property as the property of the defendant, in order to make a valid levy on real estate. Robertson v. Hoge, 83 Va. 124 , 1 S.E. 667 , 1887 Va. LEXIS 45 (1887).

    And must contain general description of land. —

    The levy of an attachment on real estate must contain such general description of the land, and describe it with such substantial accuracy, that it may be easily identified when conveyed, by looking alone to the levy without the aid of extrinsic evidence. Raub v. Otterback, 92 Va. 517 , 23 S.E. 883 , 1896 Va. LEXIS 10 (1896).

    Description held adequate. —

    A return on an attachment that it was levied on a tract of land of the defendant company containing about three hundred and sixty acres, located in the county of M., in the magisterial district of P., of said county, “being the same land conveyed to said company by L. C. Garnett, Esq., special commissioner of Mathews county circuit court, by deed recorded in deed book No. 15, pp. 58-59,” is a substantial, if not a literal, compliance with this section. Richardson v. Hoskins Lumber Co., 111 Va. 755 , 69 S.E. 935 , 1911 Va. LEXIS 25 (1911).

    Description held insufficient. —

    Where the return of the sheriff was: “executed upon the tract of land within mentioned,” the levy was too vague and uncertain. Raub v. Otterback, 92 Va. 517 , 23 S.E. 883 , 1896 Va. LEXIS 10 (1896) (see Robertson v. Hoge, 83 Va. 124 , 1 S.E. 667 (1887)).

    “Any person” includes corporation. —

    The words “any person,” used in this section, include corporations as well as natural persons. Portsmouth Gas Co. v. Sanford, 97 Va. 124 , 33 S.E. 516 , 1899 Va. LEXIS 19 (1899); B & O R.R. v. Gallahue's Adm'rs, 53 Va. (12 Gratt.) 655, 1855 Va. LEXIS 51 (1855).

    § 8.01-551. When officer to take possession of property.

    If so requested by the plaintiff in his petition, the officer to whom the attachment is directed shall take possession of the property specified in the attachment, or when no such property is specified, of any estate or effects of the defendant, or so much thereof as is sufficient to pay the plaintiff’s claim. But the officer levying the attachment shall, before taking possession of any property as aforesaid, make his certificate of the estimated fair market value of the property on which the attachment is levied, and he shall not take possession of the same unless and until bond in conformance with § 8.01-537.1 based on the estimated fair market value of the property as so stated in his certificate is posted. The certificate shall be filed in the clerk’s office of the court to which the attachment is returnable and the value so certified shall be subject to review by the court to which the attachment is returnable.

    History. Code 1950, § 8-538; 1973, c. 545; 1977, c. 617; 1984, c. 646; 1993, c. 841.

    Cross references.

    As to giving of indemnifying bond to officer, see §§ 8.01-367 through 8.01-369 .

    As to who may give bond, see §§ 8.01-4.2 , 8.01-556 .

    As to bonds on appeal for restoration of property, see § 8.01-555 .

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 43, 66, 67.

    CASE NOTES

    Editor’s note.

    Property cannot be seized and taken possession of unless the creditor has given a bond. Dorrier v. Masters, 83 Va. 459 , 2 S.E. 927 , 1887 Va. LEXIS 92 (1887).

    Under the attachment statutes, the officer is not required to take possession of the property unless the plaintiff in the attachment suit gives bond as required by this section. First Nat'l Bank v. Johnson, 183 Va. 227 , 31 S.E.2d 581, 1944 Va. LEXIS 145 (1944).

    Partner may give bond in attachment by firm. —

    The bond of a partner suing out an attachment, with surety, conditioned that that partner should pay all costs, in case the house should be cast in the suit, and all damages that should be adjudged against him for suing out the attachment, was a good bond. Kyle & Co. v. Connelly, 30 Va. (3 Leigh) 719, 1832 Va. LEXIS 23 (1832).

    But bond should show partnership as plaintiff in attachment. —

    An attachment being sued out by one member of a firm, for a debt due to the firm, and in the name of the firm, it was proper that the bond executed by the partner who sued out the attachment and his surety should bind the obligors to be answerable for the failure of the firm to prosecute their attachment with success. M'Clung & Co. v. Jackson, 47 Va. (6 Gratt.) 96, 1849 Va. LEXIS 25 (1849).

    An attachment against an absconding debtor was sued out in the name of a partnership, for a debt due the partnership; the bond taken was the bond of F., one of the partners, with surety, reciting that F. had obtained the attachment, and conditioned that if he should be cast in the suit, he should pay all costs and damages which should be recovered against him. It was held that the bond was void, and the attachment was therefore illegal and void. Jones v. Anderson, 34 Va. (7 Leigh) 308, 1836 Va. LEXIS 39 (1836).

    No action lies if attachment sued out with good cause. —

    The sureties in the attachment bond, when the attachment has been sued out with good cause, are not responsible for the failure of the officer to discharge his duty, or for a trespass committed by him. Offtendinger v. Ford, 92 Va. 636 , 24 S.E. 246 , 1896 Va. LEXIS 26 (1896).

    What is probable cause. —

    Probable cause for suing out an attachment is a belief by the attaching creditor in the existence of the facts essential to the prosecution of his attachment, founded upon facts which might induce such a belief on the part of a man of ordinary caution, prudence and judgment. Spengler v. Davy, 56 Va. (15 Gratt.) 381, 1859 Va. LEXIS 23 (1859).

    Only defendant or owner of specific property attached may sue. —

    Where the attachment issues against the effects of the defendant generally, he alone can sue upon the bond, and where the attachment is issued against specific property, only the defendant or the owner of the specific property can sue. Davis v. Commonwealth, 54 Va. (13 Gratt.) 139, 1856 Va. LEXIS 5 (1856).

    If property belonging to a third person is seized under an attachment issued against the general estate of a debtor, the remedy of the owner of the property is an action of trespass against the sheriff who made the levy, or an action on the sheriff’s bond. Davis v. Commonwealth, 54 Va. (13 Gratt.) 139, 1856 Va. LEXIS 5 (1856) (see also James v. M’Cubbin, 6 Va. (2 Call) 273 (1800); Mosby v. Mosby, 50 Va. (9 Gratt.) 584 (1853); Sangster v. Commonwealth, 58 Va. (17 Gratt.) 124 (1866)).

    Damages need not be assessed in some prior action. —

    If any damages have been sustained, it is not necessary that they should be previously assessed in some other action to justify an action on an attachment bond. Dickinson v. M'Craw, 25 Va. (4 Rand.) 158, 1826 Va. LEXIS 16 (1826); Offtendinger v. Ford, 92 Va. 636 , 24 S.E. 246 , 1896 Va. LEXIS 26 (1896).

    Costs and damages must be alleged. —

    In an action on an attachment bond, it is not sufficient to allege in the declaration, that the defendant “did not pay all such costs and damages as have accrued, etc.,” but it must be expressly averred that costs and damages had been actually sustained. Dickinson v. M'Craw, 25 Va. (4 Rand.) 158, 1826 Va. LEXIS 16 (1826).

    Variance between attachment and bond. —

    If the claim of the plaintiff in an attachment against an absconding debtor is stated as for a certain sum, due by negotiable note, with interest from the day when the note should have been paid, and the bond for prosecuting the attachment describes it as sued out for the sum of money mentioned therein, saying nothing of interest, the variance is not material. Smith v. Pearce, 20 Va. (6 Munf) 585, 1820 Va. LEXIS 58 (1820).

    § 8.01-552. Repealed by Acts 1984, c. 646.

    § 8.01-553. Bonds for retention of property or release of attachment; revising bonds mentioned in this and § 8.01-551.

    Any property levied on or seized as aforesaid, under any attachment, may be retained by or returned to the defendant or other person in whose possession it was on his giving bond, with condition to have the same forthcoming at such time and place as the court may require. In the alternative, the principal defendant may, by giving bond with condition to perform the judgment of the court, release from any attachment the whole of any estate attached. The bond in either case shall be taken by the officer serving the attachment, with surety, payable to the plaintiff, and in a penalty in the latter case either double the amount or value for which the attachment issued or double the value of the property on which the attachment was levied, at the option of the person giving it, and in the former, either double the amount of value for which the attachment issued or double the value of the property retained or returned, at the option of the person giving it. However, in the event the court shall consider that the amount of any bond required by this section or § 8.01-551 is excessive or inadequate, such court may, upon motion of any party in interest after reasonable notice to the opposite party if he can be found in the jurisdiction of the court or to his attorney of record, if any, fix the amount of such bond to conform to the equities of the case.

    History. Code 1950, § 8-540; 1977, c. 617; 1984, c. 646.

    Cross references.

    As to who may give bond, see §§ 8.01-4.2 , 8.01-556 .

    As to bond given by codefendant indebted to, or having in possession property belonging to, principal defendant, see § 8.01-562 .

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 2, 69, 70, 71.

    CASE NOTES

    Editor’s note.

    Forthcoming bond is not necessary where no attachment bond given. —

    Under the terms of § 8.01-551 the officer levying an attachment is not required to take possession of the property unless the plaintiff has given bond, and where no such attachment bond is given there is no necessity for the defendant in the attachment to execute a forthcoming bond in order that the possession of the property may be “retained by or returned to” him. Foster v. Wilson, 139 Va. 82 , 123 S.E. 527 , 1924 Va. LEXIS 86 (1924).

    Bond is security in lieu of property attached. —

    Where an attachment is sustained, the bond stands as a security in lieu of the property on which the attachment was levied. Hilton & Allen v. Consumers' Can Co., 103 Va. 255 , 48 S.E. 899 , 1904 Va. LEXIS 32 (1904).

    Giving of bond does not bar other attachments. —

    The giving of a bond under this section does not debar the plaintiff from suing out other attachments for the same debt and having them levied on other property of the defendant. Kaylor v. Davy Pocahontas Coal Co., 118 Va. 369 , 87 S.E. 551 , 1916 Va. LEXIS 18 (1916).

    Nor does it give court personal jurisdiction of defendant. —

    The execution of a forthcoming bond does not give the court in which the attachment was sued out jurisdiction to enter a personal decree against the defendant. Hilton & Allen v. Consumers' Can Co., 103 Va. 255 , 48 S.E. 899 , 1904 Va. LEXIS 32 (1904).

    And bond loses vitality when attachment dismissed. —

    If a bond is given by the defendant in attachment in pursuance of this section, conditioned to have the property forthcoming at such time and place as the court may require, or to perform the judgment of the court, there is no question but that the bond loses its vitality when the attachment is dismissed. Maryland Cas. Co. v. Parrish, 150 Va. 473 , 143 S.E. 750 , 1928 Va. LEXIS 329 (1928).

    Bond with condition to perform judgment releases whole estate attached. —

    The effect of a bond given by the defendant under this section with condition to perform the judgment of the court is to release from any attachment the whole of the estate attached. Kaylor v. Davy Pocahontas Coal Co., 118 Va. 369 , 87 S.E. 551 , 1916 Va. LEXIS 18 (1916).

    The words “perform the judgment of the court” have acquired a definite legal meaning, to wit, to pay such money judgment as may be rendered against the defendant in attachment. Foster v. Wilson, 139 Va. 82 , 123 S.E. 527 , 1924 Va. LEXIS 86 (1924).

    Bond not complying with this section may yet be enforceable. —

    A bond which recited attachment proceedings and the desire of the debtor to retain the property attached, conditioned to produce the property attached at such time and place as the court might require and to perform the judgment of the court, taken by the clerk of court without the knowledge or consent of the sheriff or the attaching creditor, and filed with the papers in the attachment proceeding, did not comply with the provisions of this section, but was a valid common-law obligation, enforceable according to its terms. Foster v. Wilson, 139 Va. 82 , 123 S.E. 527 , 1924 Va. LEXIS 86 (1924).

    Thus sheriff may sue on bond made payable to him. —

    If a forthcoming bond be made payable to the sheriff instead of to the creditor, the sheriff may maintain an action thereon. Beale v. Downman, 5 Va. (1 Call) 249, 1798 Va. LEXIS 16 (1798).

    Bond prepared without notice to obligee construed against obligors. —

    Where a release bond in attachment proceedings was prepared by counsel for the obligors without notice to opposing counsel or opportunity on their part to suggest its form or object to its terms, if there is doubt or ambiguity the words of the instrument should be construed most strongly against the obligors. Foster v. Wilson, 139 Va. 82 , 123 S.E. 527 , 1924 Va. LEXIS 86 (1924).

    § 8.01-554. Where bond returned and filed; exceptions to bond.

    Every such bond shall be returned by the officer to and filed by the clerk of the court in which the attachment is pending, or to which the attachment is returnable, and the plaintiff may, within thirty days after the return thereof, file exceptions to the same, or to the sufficiency of the surety therein. If such exception be sustained, the court shall order the officer to file a good bond, with sufficient surety, to be approved by it, on or before a certain day to be fixed by the court. If he fail to do so, he and his sureties in his official bond shall be liable to the plaintiff as for a breach of such bond; but the officer shall have the same rights and remedies against the parties to any bonds so adjudged bad as if he were a surety for them.

    History. Code 1950, § 8-541; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 71.

    § 8.01-555. When appeal bond given property to be delivered to owner.

    When judgment in favor of the plaintiff is rendered by a general district court in any case in which an attachment is issued and on appeal therefrom to a circuit court an appeal bond is given, with condition to prosecute the appeal with effect or pay the debt, interest, costs and damages, as well as the costs of the appeal, the officer, in whose custody any attached property is, shall deliver the same to the owner thereof. When an appeal is from a circuit court to the Court of Appeals and an appeal bond is given pursuant to § 8.01-676.1 , the officer having custody shall proceed in like manner.

    History. Code 1950, § 8-543; 1977, c. 617; 2021, Sp. Sess. I, c. 489.

    Editor’s note.

    Section 8.01-555 is former § 8-543.

    Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, substituted “Court of Appeals” for “Supreme Court.”

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 72.

    CASE NOTES

    An appeal bond given by the defendant does not release the general attachment lien. Magill v. Sauer, 61 Va. (20 Gratt.) 540, 1871 Va. LEXIS 19 (1871) (decided under prior law).

    § 8.01-556. Bonds may be given by any person.

    Any bond authorized or required by any section of this chapter may be given either by the party himself or by any other person.

    History. Code 1950, § 8-544; 1977, c. 617.

    Cross references.

    As to bond for obtaining writ of order in civil cases generally, see § 8.01-4.2 .

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 66.

    CASE NOTES

    It is not necessary that the plaintiff in attachment should be a party to an attachment bond. Offtendinger v. Ford, 92 Va. 636 , 24 S.E. 246 , 1896 Va. LEXIS 26 (1896) (decided under prior law).

    § 8.01-557. Lien of attachment; priority of holder in due course.

    The plaintiff shall have a lien from the time of the levying of such attachment, or serving a copy thereof as aforesaid, upon the personal property of the principal defendant, when the same is in his possession, actual or constructive, and upon the personal property, choses in action, and other securities of such defendant in the hands of, or owing by a codefendant on whom it is so served; and on any real estate mentioned in such an endorsement by the officer on the attachment or summons as is prescribed by § 8.01-550 , from the time of levy and service pursuant to such section. But a holder in due course of negotiable paper shall have priority over an attachment levied thereon.

    History. Code 1950, § 8-545; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-557 is former § 8-545. The language “. . . the suing out of the same” has been deleted and the language “. . . from the time of levy and service pursuant to such section” has been substituted therefor. This change abolishes the distinction between real and personal property regarding the time when the lien arises. See § 8.01-268 requiring a memorandum of lis pendens in order to bind the attached property, real or personal, against the claim of a bona fide purchaser for value.

    Cross references.

    As to recordation of attachments, see §§ 8.01-268 , 8.01-269 .

    As to lien of attachment on property held under process, see § 8.01-558 .

    As to who is a holder in due course and the rights thereof, see § 8.3A-302 .

    As to priority of lien in attachment of crops for advances to tenants, see § 43-29 .

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 43, 56, 59, 63.

    CASE NOTES

    Analysis

    I.General Consideration.

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    Court has no inherent jurisdiction over property to be attached. —

    Under this section a lien is not acquired by virtue of the inherent jurisdiction of the court over the property; on the contrary, the court’s power over the property does not exist and cannot be exercised until a substantial compliance with the statutory prerequisites appears. These, and only these, procedural prerequisites give the creditor the right to a lien, and when this right is established the court is clothed with jurisdiction over the attached property. Fauquier Nat'l Bank v. Hazelwood Sav. & Trust Co., 165 Va. 259 , 182 S.E. 566 , 1935 Va. LEXIS 293 (1935).

    It must acquire jurisdiction through statutory proceedings. —

    The court must acquire jurisdiction over the property to be attached through the proceedings prescribed by this and the preceding sections before there can exist a valid lien on such property. Fauquier Nat'l Bank v. Hazelwood Sav. & Trust Co., 165 Va. 259 , 182 S.E. 566 , 1935 Va. LEXIS 293 (1935).

    Lien commences at time of levy. —

    The lien of the attachment in Virginia commences from the time of its levy or service. Williamson v. Bowie, 20 Va. (6 Munf) 176, 1818 Va. LEXIS 34 (1818); Allan v. Hoffman, 83 Va. 129 , 2 S.E. 602 , 1887 Va. LEXIS 46 (1887); First Nat'l Bank v. Johnson, 183 Va. 227 , 31 S.E.2d 581, 1944 Va. LEXIS 145 (1944).

    It is perfected by levy. —

    The lien of the attachment is perfected by the levy thereof, and the subsequent judgment or decree is simply the enforcement of a valid preexisting lien. It is the creation of the lien, and not its enforcement, that is denounced by the Bankruptcy Act. Jackson v. Valley Tie & Lumber Co., 108 Va. 714 , 62 S.E. 964 , 1908 Va. LEXIS 90 (1908).

    And final judgment relates back. —

    The levy of an attachment creates an inchoate lien upon the property attached, and when final judgment is rendered for the plaintiff it relates back to the levy, but it cannot by relation render a transaction unlawful which was not unlawful at the time it took place. Trimble v. Covington Grocery Co., 112 Va. 826 , 72 S.E. 724 , 1911 Va. LEXIS 156 (1911).

    Lien of an attachment is perfected by the levy of the officer. S.W. Rawls, Inc. v. Forrest, 224 Va. 264 , 295 S.E.2d 791, 1982 Va. LEXIS 290 (1982).

    Fieri facias lien and attachment lien take effect at different times. —

    The two Code chapters dealing with garnishment in aid of the fieri facias lien on unleviable property and garnishment by attachment lien provide for their taking effect at different times. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    A judgment or decree in enforcement of a valid preexisting lien is not the judgment or decree denounced by the Bankruptcy Act, which was plainly confined to judgments creating liens. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    The service of the attachment operates to inhibit a transfer of the debtor’s property from the defendants to any other person. M'Kim v. Fulton, 10 Va. (6 Call) 106, 1806 Va. LEXIS 23 (1806); Smith v. Henny, 14 Va. (4 Hen. & M.) 440, 1809 Va. LEXIS 78 (1809); Williamson v. Bowie, 20 Va. (6 Munf) 176, 1818 Va. LEXIS 34 (1818).

    II.Property Subject to Lien.

    Lien affects only debts owed and property held by person served. —

    The attachment operates as a lien only upon the debts and effects of the absent debtor, in the hands of the home defendants against whom, and upon whom, it is served. Farmers Bank v. Day, 47 Va. (6 Gratt.) 360, 1849 Va. LEXIS 56 (1849).

    And only debts due and property held at time of service. —

    Where a codefendant in an attachment is named as a person who is indebted to or has in his possession property belonging to the principal defendant, by the service of a copy of the attachment upon the codefendant the plaintiff acquires an inchoate lien upon any debt then owed to the principal defendant by the codefendant, and upon any property of the principal defendant then in the possession of the codefendant. But he acquires no lien whatever upon any indebtedness of the codefendant to the principal defendant which accrues after the service of the attachment, or upon any property of the principal defendant which comes into the possession of the codefendant after the service of the attachment. Deeds v. Gilmer, 162 Va. 157 , 174 S.E. 37 , 1934 Va. LEXIS 244 (1934).

    Creditor acquires no right superior to that of debtor. —

    By attachment, a creditor acquires in the proceeds of property claimed by his debtor no right or interest superior to that possessed by the latter therein at the time of the levy or service of the writ. Seward & Co. v. Miller, 106 Va. 309 , 55 S.E. 681 , 1906 Va. LEXIS 135 (1906).

    Lien does not attach to funds subject to forfeiture. —

    The estimates of work done by a contractor for a railroad company are made up to the 20th of each month, when they are considered due, though not paid for some days afterwards. As the price of the work done by the contractor after the 20th may be forfeited to the company for several causes before the 20th of the next month, no debt is due from the company to the contractor until the 20th arrives, and therefore an attachment served on the company on the 14th of the month creates no lien, as there is nothing then in his hands due to the contractor which may be attached, though in fact no forfeiture occurs. B & O R.R. v. Gallahue's Adm'rs, 55 Va. (14 Gratt.) 563, 1858 Va. LEXIS 31 (1858).

    Service on lessee binds only rents due at time of service. —

    Where, in a foreign attachment, the home defendant holds lands of the absent debtor upon a lease, the service of the attachment upon the lessee binds only the rents due to the absent defendant at the time the attachment was served, and does not bind the rents accruing subsequently. Haffey v. Miller, 47 Va. (6 Gratt.) 454, 1849 Va. LEXIS 69 (1849).

    Service on executor creates lien on legacy. —

    Service of process of foreign attachment on an executor before qualification creates a lien in favor of the attaching creditor on a legacy to an absent debtor. Sandridge v. Graves (1855).

    No lien is acquired on realty not described in endorsement on process. —

    If the endorsement on the process of attachment does not mention or describe real estate, the attachment does not operate upon any real estate. Clark v. Ward, 53 Va. (12 Gratt.) 440, 1855 Va. LEXIS 33 (1855).

    III.Priorities.

    Lien of attachment is subject to bona fide earlier lien. —

    If property, when attached, is subject to a lien placed thereon by the defendant in good faith, that lien must be respected and the attachment postponed to it. Seward & Co. v. Miller, 106 Va. 309 , 55 S.E. 681 , 1906 Va. LEXIS 135 (1906).

    And to prior assignment to chose in action. —

    Since the Virginia recording acts do not embrace choses in action, an assignment of a chose in action to a trustee to pay the debts of the assignor is valid against a subsequent attaching creditor of the assignor. Kirkland v. Brune, 72 Va. (31 Gratt.) 126, 1878 Va. LEXIS 33 (1878); Gregg v. Sloan, 76 Va. 497 , 1882 Va. LEXIS 54 (1882) (see also Tazewell’s Ex’r v. Barrett & Co., 14 Va. (4 Hen. & M.) 259 (1809); Wilson v. Davisson, 19 Va. (5 Munf.) 178 (1816); Schofield v. Cox, 49 Va. (8 Gratt.) 533 (1852)).

    And prior deed of trust. —

    A subpoena was sued out against an absent debtor and home defendants. The subpoena was returned executed on the home defendants, but the date of its service upon them was not stated. After the issue of the subpoena, but before the return day thereof, the debtor executed a deed to secure certain creditors, which was duly filed. It was held that the attachment was postponed to the deed. Richeson v. Richeson, 43 Va. (2 Gratt.) 497, 1846 Va. LEXIS 10 (1846).

    Priority of holder in due course of negotiable paper. —

    While this section gives a holder in due course of negotiable paper a priority over an attachment levied upon the seized property, this in no sense grants a right of action in tort to a party secondarily liable on the negotiable instrument. Ross v. Peck Iron & Metal Co., 264 F.2d 262, 1959 U.S. App. LEXIS 4263 (4th Cir. 1959).

    Priority over unrecorded deed to chattels. —

    An attachment has priority over a deed of trust conveying goods and chattels, recorded in another state but not in Virginia. Smith v. Smith, 60 Va. (19 Gratt.) 545, 1869 Va. LEXIS 12 (1869).

    A prior lien by writ of fieri facias is superior to a garnishment attachment even though the garnishment attachment was served on the garnishee first. In re Acorn Elec. Supply, Inc., 348 F. Supp. 277, 1972 U.S. Dist. LEXIS 11938 (E.D. Va. 1972).

    Fieri facias is superior to subsequent attachment. —

    A fieri facias placed in the hands of an officer for execution is a legal lien under § 8.01-479 and continues in effect after the return day. Such lien has priority over an attachment subsequently levied. Puryear v. Taylor, 53 Va. (12 Gratt.) 401, 1855 Va. LEXIS 29 (1855); Charron & Co. v. Boswell, 59 Va. (18 Gratt.) 216, 1868 Va. LEXIS 10 (1868).

    Attachment first sued out and served has priority. —

    Among attaching creditors proceeding by foreign attachment, the creditor whose subpoena is first sued out and served is entitled to priority of satisfaction. Farmers Bank v. Day, 47 Va. (6 Gratt.) 360, 1849 Va. LEXIS 56 (1849).

    Two attachments against an absconding debtor were levied on the same property. The first levied was quashed, but upon appeal this judgment was reversed. Pending the appeal an order was made in the second attachment case for a sale of the property, and it was sold and the proceeds paid over to the creditor in the second attachment. It was held that an action for money had and received would lie by the first attaching creditor against the creditor in the second attachment for the proceeds of the sale. Caperton v. M'Corkle, 46 Va. (5 Gratt.) 177, 1848 Va. LEXIS 39 (1848).

    Subsequent purchaser without notice takes land free of lien. —

    A purchaser of land without notice of an attachment which had been previously levied upon it, but which had not been recorded or docketed as required by § 8.01-268 , is entitled to hold the land free from the lien of the attachment. Cammack v. Soran, 71 Va. (30 Gratt.) 292, 1878 Va. LEXIS 66 (1878).

    Unless lis pendens has been filed. —

    A lis pendens in attachment proceedings filed in the clerk’s office of the proper county, as provided by § 8.01-268 , operates to give constructive notice of the lien of the attachment to a subsequent grantee of the defendant, and such grantee stands upon no better footing as to the attaching creditor than his grantor. Breeden v. Peale, 106 Va. 39 , 55 S.E. 2 , 1906 Va. LEXIS 105 (1906).

    Lien is superior to claim of wife in subsequent divorce suit. —

    An attachment against the effects of the husband as an absconding debtor, levied before the institution of a suit by the wife for a divorce, entitles the attaching creditor to be satisfied out of the attached effects, in preference to the claim of the wife. Jennings v. Montague, 43 Va. (2 Gratt.) 350, 1845 Va. LEXIS 53 (1845).

    Attachment and distress for rent. —

    Distress for rent cannot be made off the demised premises, and, therefore, an attachment served upon property found off the premises was preferred to it. Mosby v. Leeds, 7 Va. (3 Call) 439, 1803 Va. LEXIS 21 (1803).

    Priority between partnership creditors where partners are bankrupt. —

    Where partners have been declared bankrupts, one creditor of the partnership cannot attach the partnership effects so as to obtain a preference over the other partnership creditors. Lindsey v. Corkery, 70 Va. (29 Gratt.) 650, 1878 Va. LEXIS 3 (1878).

    § 8.01-558. Attachment lien on effects already in hands of officer.

    When an officer has in his possession or custody money or effects of the defendant held under an attachment executed, or other legal process, a delivery to such officer of an attachment under this chapter shall be deemed a levy thereof as to such money or effects, and constitute a lien thereon from the time of such delivery.

    History. Code 1950, § 8-546; 1977, c. 617.

    § 8.01-559. Return by officer.

    The officer levying the attachment shall show in his return the time, date and manner of the service, or execution thereof, on each person and parcel of property, and also give a list and description of the property, if any, levied on under the attachment.

    History. Code 1950, § 8-547; 1954, c. 333; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 46.

    CASE NOTES

    Editor’s note.

    The return must show that the attachment was levied on the property of the defendant in order to make it valid. Robertson v. Hoge, 83 Va. 124 , 1 S.E. 667 , 1887 Va. LEXIS 45 (1887); Offtendinger v. Ford, 86 Va. 917 , 12 S.E. 1 , 1890 Va. LEXIS 60 (1890).

    Attachment presumed legally executed. —

    If the return is regular on its face, it will be presumed, in the absence of evidence to the contrary, that the attachment was legally executed. Guarantee Co. of N. Am. v. First Nat'l Bank, 95 Va. 480 , 28 S.E. 909 , 1898 Va. LEXIS 4 (1898).

    The officer’s return may be amended if defective. Pulliam v. Aler, 56 Va. (15 Gratt.) 54, 1859 Va. LEXIS 2 (1859).

    Article 3. Subsequent Proceedings Generally.

    § 8.01-560. How interest and profits of property applied in certain cases.

    When any attachment is sued out, although the property or estate attached be not seized, the interest and profits thereof pending the attachment and before judgment may be paid to the defendant, if the court deem it proper.

    History. Code 1950, § 8-548; 1977, c. 617.

    § 8.01-561. How property to be kept; how sold, when expensive to keep or perishable.

    Any property seized under any attachment and not sold before judgment shall be kept in the same manner as similar property taken under execution. But such as is expensive to keep or perishable may be sold by order of the court upon such terms as the court may direct. If the court directs that the sale may be made on credit, the court may order the sheriff to take a bond with sufficient surety, payable to the sheriff, for the benefit of the party entitled. Such bond shall be returned forthwith by the officer to the court.

    History. Code 1950, § 8-549; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-561 is former § 8-549 without material change. In order to simplify the procedure, however, all of the language of the former statute following the phrase “. . . by order of the court . . .” has been rewritten. The words “replevied or” have been deleted. The action of replevin has been abolished since the enactment of the Code of 1919.

    Cross references.

    As to disposition of surplus proceeds on sale of property, see § 8.01-373 .

    As to judgment and directing of sale thereon in attachment proceedings, see §§ 8.01-570 , 8.01-572 .

    As to protection of purchaser of property sold under attachment, see § 8.01-575 .

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 54.

    § 8.01-562. Examination on oath of codefendant; order and bond.

    A defendant who at the time of service of the attachment was alleged to be indebted to a principal defendant, or had in his possession personal property belonging to such principal defendant, shall appear in person and submit to an examination on oath touching such debt or personal property, or he may, with the consent of the court, after reasonable notice to the plaintiff, file an answer in writing under oath, stating whether or not he was so indebted, and if so, the amount thereof and the time of maturity, or whether he had in his possession any personal property belonging to such principal defendant and, if so, the nature and value thereof. If it appear on such examination or by his answer that at the time of the service of the attachment, he was indebted to the principal defendant, or had in his possession or control any goods, chattels, money, securities or other effects belonging to such defendant, the court may order him to pay the amount so owing by him, or to deliver such effects to the sheriff, or other person designated by the court to receive the same; or such defendant may, with the leave of the court, give bond with sufficient security, payable to such person and in such penalty as the court shall prescribe, with condition to pay the amount owing by him, and have such effects forthcoming, at such time and place as the court may thereafter require. An answer under oath under this section shall be deemed prima facie to be true.

    History. Code 1950, § 8-550; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-562 is former § 8-550. The language “after reasonable notice to the plaintiff” has been inserted after the language “consent of the court.”

    Cross references.

    As to garnishment in connection with executions on judgments, see §§ 8.01-511 et seq.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 12, 52, 95, 112, 113.

    CASE NOTES

    Analysis

    I.General Consideration.

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    Service of notice of attachment gives plaintiff a lien upon a debt owing by the garnishee to defendant. Trimble v. Covington Grocery Co., 112 Va. 826 , 72 S.E. 724 , 1911 Va. LEXIS 156 (1911).

    Contingent debt cannot be collected. —

    The contract between a railroad company and one of the contractors on its line of improvement provided that the contractor should not receive the amount of final estimate of his work until he should release, under seal, all claims or demands upon the company arising out of the contract. The contractor could not recover the amount of the final estimate until he had executed the release, and an attaching creditor at law had no greater rights against the company in respect to this final estimate than the contractor had, and therefore could not recover the amount unless the contractor had executed the release. B & O R.R. v. McCullough & Co., 53 Va. (12 Gratt.) 595, 1855 Va. LEXIS 45 (1855).

    Plaintiff cannot acquire greater right than principal defendant. —

    Garnishment is substantially a suit by the principal defendant in the attachment, in the name of the plaintiff against the garnishee. The plaintiff stands upon no higher ground than the defendant, and can acquire no greater right than the defendant himself possesses. Rollo v. Andes Ins. Co., 64 Va. (23 Gratt.) 509, 1873 Va. LEXIS 50 (1873).

    Lien is enforced by judgment against garnishee. —

    The lien of the attachment cannot be enforced without rendering a judgment against the garnishee. B & O R.R. v. McCullough & Co., 53 Va. (12 Gratt.) 595, 1855 Va. LEXIS 45 (1855).

    Plaintiff must first establish his debt against principal defendant. —

    As the whole object of garnishment is to reach effects or credits in the garnishee’s hands so as to subject them to the payment of such judgment as the plaintiff may recover against the principal defendant, it follows necessarily that there can be no judgment against the garnishee until judgment against the principal defendant has been recovered. And the judgment against the defendant must be a final one. If it is appealed from by the defendant there can be no judgment against the garnishee while the appeal is pending. George v. Blue, 7 Va. (3 Call) 455, 1803 Va. LEXIS 23 (1803); Withers v. Fuller, 71 Va. (30 Gratt.) 547, 1878 Va. LEXIS 81 (1878) (see Gibson v. White & Co., 17 Va. (3 Munf.) 94 (1812)).

    Garnishee is liable only for consuming or appropriating property. —

    If the defendant appears not to be a debtor of the absentee, but holds effects belonging to him, by a title not effectual against creditors, or without any title at all, he should be considered personally responsible only for so much as he may have consumed, or appropriated to his own use so that it is not forthcoming, or for the profits he may have received. Gibson v. White & Co., 17 Va. (3 Munf) 94, 1812 Va. LEXIS 18 (1812).

    Garnishee’s claim for keeping property should be satisfied. —

    In a proceeding by foreign attachment, a home defendant having property of the absent defendant in his possession, for the keeping of which the absent defendant is indebted to him, is entitled, as against the attaching creditor, to have his claim first satisfied out of the property. Williamson v. Gayle, 48 Va. (7 Gratt.) 152, 1850 Va. LEXIS 27 (1850).

    Judgment should be only for amount of plaintiff’s demand. —

    An attaching creditor should be decreed only so much of the debt garnished as is equal to his demand. Watts Ex'rs v. Robertson, 14 Va. (4 Hen. & M.) 442, 1809 Va. LEXIS 80 (1809).

    For the attaching creditor has no interest in the subject beyond his demand. —

    If the garnishee admits funds to that amount, or the jury finds them, he looks no further but takes his judgment accordingly. He is not concerned to contest whether his debtor has no further demands against the garnishee, and the judgment against the latter ascertains that there is so much at least in his hands, but not, as against the debtor, that there may not be more. B & O R.R. v. McCullough & Co., 53 Va. (12 Gratt.) 595, 1855 Va. LEXIS 45 (1855).

    Judgment for residue may be given in favor of principal defendant. —

    Where a foreign attachment is sued out against an absent debtor and a resident garnishee, in a case equitable in its nature, it is competent to the court to decree between the debtor and the garnishee what may be due from the latter to the former, after satisfying the claims of the plaintiff. But the evidence, in such a case, must arise from the pleadings and proofs between the plaintiff and defendant. Templeman v. Fauntleroy, 24 Va. (3 Rand.) 434, 1825 Va. LEXIS 27 (1825).

    II.Who May Be Garnished.

    A corporation may be summoned and proceeded against as a garnishee, upon proceedings under this section. B & O R.R. v. Gallahue's Adm'rs, 53 Va. (12 Gratt.) 655, 1855 Va. LEXIS 51 (1855).

    A municipal corporation may be garnished or attached for a debt due to one of its creditors just as a natural person may be. Such a proceeding is not contrary to the public policy of this State. Portsmouth Gas Co. v. Sanford, 97 Va. 124 , 33 S.E. 516 , 1899 Va. LEXIS 19 (1899).

    State Treasurer cannot be garnished in attachment against foreign insurance company. —

    The treasurer of the State, who holds bonds of a foreign insurance company doing business in the State, is not liable to be summoned as garnishee by a foreign creditor of the insurance company. Rollo v. Andes Ins. Co., 64 Va. (23 Gratt.) 509, 1873 Va. LEXIS 50 (1873).

    III.What May Be Garnished.

    Money on deposit is subject to garnishment. —

    Money was left with a person who was a member of a firm, on a special deposit, and in his absence it was entered on the books of the firm to the credit of the depositor, and paid out by the firm for their own uses, they paying the depositor’s checks upon it, by checks in their own name upon the bank. An attachment was served upon the firm as garnishees in a suit against the depositor, the summons being served on the other member of the firm. It was held that the attachment bound the money in the hands of the firm. Pulliam v. Aler, 56 Va. (15 Gratt.) 54, 1859 Va. LEXIS 2 (1859).

    Trust funds in hands of public officer are not. —

    No lien can be obtained by attachment upon funds charged with a trust in the hands of a public officer. Rollo v. Andes Ins. Co., 64 Va. (23 Gratt.) 509, 1873 Va. LEXIS 50 (1873); Foley v. Shriver, 81 Va. 568 , 1886 Va. LEXIS 124 (1886); Buck v. Guarantors' Liab. Indem. Co., 97 Va. 719 , 34 S.E. 950 , 1900 Va. LEXIS 126 (1900).

    Land in possession of garnishee. —

    In a proceeding by foreign attachment, the home defendant denied that he had any effects of the absent debtor in his hands. He said that a tract of land which had belonged to the absent debtor, had been purchased by himself and paid for, and he in fact held the receipt of the absent debtor for the amount of the purchase money. As, however, he did not pretend he had paid the amount in money, and as the accounts which he endeavored to establish were not proved to the satisfaction of the commissioner and the court, the land was held liable. Kelly v. Linkenhoger, 49 Va. (8 Gratt.) 104, 1851 Va. LEXIS 47 (1851).

    The shares of a stockholder in a joint stock company may properly be considered, for the purpose of attachment proceedings, as in the possession of the corporation in which the shares are held and the corporation may properly be summoned as garnishee in the case. C & O R.R. v. Paine & Co., 70 Va. (29 Gratt.) 502, 1877 Va. LEXIS 39 (1877).

    IV.Practice and Procedure.

    Garnishee may be compelled to pay interest. —

    A home defendant decreed to pay money to a creditor of an absent defendant will be compelled to pay interest, unless he makes a legal tender, or brings the money into court. Ross v. Austin, 14 Va. (4 Hen. & M.) 502, 1810 Va. LEXIS 28 (1810).

    Garnishee may set up equitable defense. —

    The garnishee may set up any equitable defense which shows that in equity he owes no debt to the defendant. Glassell v. Thomas, 30 Va. (3 Leigh) 113, 1831 Va. LEXIS 41 (1831).

    He may interplead third person claiming property. —

    Where, along with the answer of the garnishee, an affidavit is filed, alleging that some third person claims the property to be attached, and that the garnishee claims no interest therein, nor does it collude with the claimant, but is ready to dispose of the property as the court shall direct, the court should require the third person to appear and state the nature of his claim, and maintain or relinquish the same. C & O R.R. v. Paine & Co., 70 Va. 792 (1878).

    He may waive irregularity of service and return. —

    Though the service of an attachment upon a garnishee, and the return thereon, are irregular, yet if the garnishee appears to the action and defends it, without objecting to the irregularity, he cannot afterwards make the objection in the appellate court. Pulliam v. Aler, 56 Va. (15 Gratt.) 54, 1859 Va. LEXIS 2 (1859).

    Court may order payment to receiver. —

    A garnishee having admitted his indebtedness to the debtor, the court may order him to pay his debt to a receiver appointed by the court, and a payment to the receiver by the garnishee is a valid payment, and a discharge of his indebtedness as to the attaching creditor. Withers v. Fuller, 71 Va. (30 Gratt.) 547, 1878 Va. LEXIS 81 (1878).

    § 8.01-563. Principal defendant may claim exemption.

    The principal defendant, if a householder or head of a family, may claim that the amount so found owing from his codefendant, or the personal property in his possession, shall be exempt from liability for the plaintiff’s claim; and if it shall appear that the principal defendant is entitled to such exemption, then the court shall render a judgment against the defendant only for the excess, if any, beyond the exemption to which the principal defendant is entitled.

    History. Code 1950, § 8-551; 1977, c. 617.

    Cross references.

    As to homestead and other exemptions, § 34-1 et seq.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 12.

    § 8.01-564. Procedure when codefendant fails to appear.

    If the attachment be served on a defendant who the petition alleges is indebted to, or has in his possession effects of, the principal defendant, and he fail to appear, the court may either compel him to appear, or hear proof of any debt owing by him, or of effects in his hands belonging to a principal defendant in such attachment, and make such orders in relation thereto as if what is so proved had appeared on his examination.

    History. Code 1950, § 8-552; 1977, c. 617.

    Cross references.

    As to application of this and following section in garnishment proceedings to enforce execution lien, see § 8.01-519 .

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 52, 110.

    § 8.01-565. Suggestion that codefendant has not made full disclosure.

    When it is suggested by the plaintiff in any attachment that a codefendant has not fully disclosed the debts owing by him, or effects in his hands belonging to the principal defendant in such attachment, the court, without any formal pleading, shall inquire as to such debts and effects, or, if either party demand, it shall cause a jury to be impaneled for that purpose, and proceed in respect to any such debts or effects found by the court or the jury in the same manner as if they had been confessed by such codefendant. If the judgment of the court or verdict of the jury be in favor of such codefendant, he shall have judgment for his costs against the plaintiff.

    History. Code 1950, § 8-553; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 111.

    CASE NOTES

    Failure to inquire into total sum of funds. —

    Because the circuit court failed to conduct the requisite inquiry into the total sum of the funds deposited into a judgment debtor’s bank account during the garnishment period, the record was insufficient on appeal to resolve the amount of indebtedness of the garnishee to the debtor, and therefore, the judgment creditor, during the garnishment period; the alleged unreliability of the account statement does not exempt the account from review. PS Bus., L.P. v. Deutsch & Gilden, Inc., 287 Va. 410 , 758 S.E.2d 508, 2014 Va. LEXIS 62 (2014).

    § 8.01-566. Who may make defense to attachment.

    Any of the defendants in any such attachment, or any party to any forthcoming bond given as aforesaid, or the officer who may be liable to the plaintiff by reason of such bond being adjudged bad, or any person authorized by § 8.01-573 to file a petition, may make defense to such attachment, but the attachment shall not thereby be discharged, or the property levied on released.

    History. Code 1950, § 8-554; 1973, c. 545; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 74.

    § 8.01-567. What defense may be made to attachments.

    Any party in interest may show that the court is without jurisdiction to hear and determine the controversy.

    The principal defendant, if not served with process, may appear specially and show that the attachment was issued on false suggestion or without sufficient cause, in which event the attachment shall be quashed.

    Any person claiming title to, an interest in, or a lien upon the property attached, or any part thereof, after being admitted as a party defendant, if not already a defendant, and the principal defendant, may contest the liability of the principal defendant for the plaintiff’s claim, in whole or in part, by proof of any manner which would constitute a good defense by the principal defendant to an action at law on such claim, and may also show that the attachment was not issued on any of the grounds set forth in § 8.01-534 , or that the plaintiff is not likely to succeed on the merits of his underlying claim. The principal defendant may also file counterclaims or defenses available under § 8.01-422 as in an action at law.

    Other defendants shall be limited to defenses personal to themselves, or which may prevent a liability upon them or their property.

    History. Code 1950, § 8-555; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-567 is former § 8-555. The word “defendant” in the first sentence has been replaced by the phrase “. . . party in interest. . . .” The language “. . . on false suggestion or without sufficient cause” has been replaced with the language “. . . on any of the grounds set forth in § 8.01-534 , or that the plaintiff is not likely to succeed on the merits of the underlying claim.” In place of the word “set-offs,” the language “. . . counterclaims or defenses available under § 8.01-422 . . .” has been substituted in order to comport with the applicable rules of court and the statute relating to equitable defenses.

    Cross references.

    As to jurisdiction of attachments, see § 8.01-535 .

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Appearances, § 18.

    § 8.01-568. Quashing attachment or rendering judgment for defendant.

    The court in which an attachment is pending shall, on motion of the principal defendant, or any defendant claiming title to, an interest in, or a lien upon the property attached, or any part thereof, after reasonable notice to the plaintiff, hear testimony and quash the attachment, if of opinion that (i) the attachment is invalid on its face, (ii) none of the grounds for attachment in § 8.01-534 exist, or (iii) the plaintiff is not likely to succeed on the merits of his underlying claim. The hearing shall be held not later than ten business days following the defendant’s motion. When the attachment is properly sued out, and the case is heard upon its merits, if the court is of opinion that the claim of the plaintiff is not established, final judgment shall be given for the defendant. In either case, he shall recover his costs, and damages for loss of the use of his property, and there shall be an order for the restoration of the attached effects. The plaintiff shall have the burden of proof in proceedings pursuant to this section.

    History. Code 1950, § 8-556; 1977, c. 617; 1984, c. 646.

    REVISERS’ NOTE

    Section 8.01-568 is former § 8-556. The language “. . . was issued on false suggestion, or without sufficient cause” has been replaced with the language “. . . that none of the grounds for attachment in § 8.01-534 exist, or that the plaintiff is not likely to succeed on the merits of his underlying claim.” The words “attaching creditor” have been replaced with the word “plaintiff.” Following the word “costs,” the language “. . . and damages for loss of the use of his property . . .” has been added. A final sentence has been added specifying that the plaintiff is to have the burden of proof in proceedings under this section. This codifies case law on former § 8-556. (See Wright v. Rambo, 62 Va. (21 Gratt.) 158 (1871); see also, Burruss v. Trant, 88 Va. 980 , 14 S.E. 845 (1892)).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 74, 81, 83.

    CASE NOTES

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    If an affidavit (now petition) is defective, the remedy is by motion to quash the attachment. Anderson v. Johnson, 73 Va. (32 Gratt.) 558, 1879 Va. LEXIS 87 (1879).

    Appearance on motion to quash is not waiver of defects. —

    An appearance on a motion to quash an attachment because of irregular execution is not an appearance to the action whereby alleged defects are waived. Petty v. Frick Co., 86 Va. 501 , 10 S.E. 886 , 1890 Va. LEXIS 11 (1890).

    Attachment may be abated at any time before final judgment. —

    The authority given the court under this section to enter judgment abating the attachment may be exercised at any time before a final judgment has been entered disposing of the property attached. Northern Neck State Bank, Inc. v. Gilbert Packing Co., 114 Va. 658 , 77 S.E. 451 , 1913 Va. LEXIS 127 (1913).

    Former order overruling motion does not bind court. —

    The court is not precluded from abating the attachment because at a former stage of the proceeding a motion to abate was overruled, if upon further consideration it is satisfied that the writ was issued upon an insufficient affidavit. Northern Neck State Bank, Inc. v. Gilbert Packing Co., 114 Va. 658 , 77 S.E. 451 , 1913 Va. LEXIS 127 (1913).

    An attachment irregularly issued ought to be quashed ex officio by the court to which it is returned, though bail is not given, nor any plea filed by the defendant. Mantz v. Hendley, 12 Va. (2 Hen. & M.) 308, 1808 Va. LEXIS 41 (1808).

    Irregular attachment may be dismissed on appeal. —

    Objections to the regularity of attachment proceedings may be taken advantage of, not only in the trial court, but in an appellate court, although not raised in the trial court, and the court may, of its own motion, dismiss an irregular attachment, and ought to do so when there has been no appearance by the nonresident debtor, and no personal service upon him. McAllister v. Guggenheimer, 91 Va. 317 , 21 S.E. 475 , 1895 Va. LEXIS 28 (1895). But see Sims v. Tyrer, 96 Va. 5 , 26 S.E. 508 , 1897 Va. LEXIS 144 (1897).

    Validity of plaintiff’s demand is not involved. —

    The question of the validity of the debt or demand of the plaintiff, i.e., whether it is or is not established, does not arise upon a preliminary motion to quash the attachment, but only when the case is heard upon its merits. Consequently, the question of the liability of a partnership for torts of one of the partners is not within the scope of a motion to quash an attachment, but must be determined when the case comes up for trial on its merits. Henry Myers & Co. v. Lewis, 121 Va. 50 , 92 S.E. 988 , 1917 Va. LEXIS 9 (1917).

    But actual existence of sufficient cause must be shown. —

    The question is whether, upon all the evidence, there was probable cause to believe the defendant was doing the act which would authorize the attachment, and not whether the facts as they appeared to the affiant, though only a small part perhaps of the facts of the case, afforded him reasonable grounds for such a belief. Claflin & Co. v. Steenbock & Co., 59 Va. (18 Gratt.) 842, 1868 Va. LEXIS 39 (1868).

    And mere belief of plaintiff is insufficient. —

    The remedy is justified, not by the belief of the affiant, however honestly entertained upon reasonable grounds that the fact sworn to in the petition exists, but by the existence of that fact. Sublett v. Wood, 76 Va. 318 , 1882 Va. LEXIS 35 (1882).

    Proceeding must be good on its face. —

    The remedy by attachment against the estate of a nonresident is wholly statutory, harsh in its operation towards the debtor and his creditors, and the proceeding must show on its face that the requirements of this section have been substantially complied with. McAllister v. Guggenheimer, 91 Va. 317 , 21 S.E. 475 , 1895 Va. LEXIS 28 (1895).

    The return must show that the attachment was levied on the property of the defendant in order to make it valid. Robertson v. Hoge, 83 Va. 124 , 1 S.E. 667 , 1887 Va. LEXIS 45 (1887); Offtendinger v. Ford, 86 Va. 917 , 12 S.E. 1 , 1890 Va. LEXIS 60 (1890).

    Burden of proving sufficient cause is on plaintiff. —

    Upon a motion to abate an attachment, the burden of proof is on the plaintiff to show that the attachment was issued on sufficient cause, and he may therefore be required to introduce his evidence first. Wright v. Rambo, 62 Va. (21 Gratt.) 158, 1871 Va. LEXIS 72 (1871); Sublett v. Wood, 76 Va. 318 , 1882 Va. LEXIS 35 (1882); Burruss v. Trant, 88 Va. 980 , 14 S.E. 845 , 1892 Va. LEXIS 59 (1892).

    § 8.01-569. When petition dismissed; when retained and cause tried.

    If the principal defendant has not appeared generally, nor been served with process, and the sole ground of jurisdiction of the court is the right to sue out the attachment, and this right be decided against the plaintiff, the petition shall be dismissed at the cost of the plaintiff; but if the plaintiff’s claim be due at the hearing, and the court would otherwise have jurisdiction of an action against such defendant for the cause set forth in the petition, and such defendant has appeared generally, or been served with process, it shall retain the cause and proceed to final judgment as in other actions at law.

    History. Code 1950, § 8-557; 1977, c. 617.

    Cross references.

    As to failure to pay writ tax, see § 8.01-537 .

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Appearances, § 12.

    CASE NOTES

    Editor’s note.

    If defendant appears generally, court may enter personal judgment. —

    Under this section, where the defendant in attachment was properly before the court, the court undoubtedly had jurisdiction to enter a personal judgment against the defendant, even though the attachment was dismissed. Maryland Cas. Co. v. Parrish, 150 Va. 473 , 143 S.E. 750 , 1928 Va. LEXIS 329 (1928).

    Jury may be impaneled to try issue. —

    It is not error for the trial court to impanel a jury in an attachment case to try the issue, as § 8.01-336 provides that where an issue of fact is joined on motion, a jury may be impaneled, when in the opinion of the court it is proper. Jayne v. Kane, 140 Va. 27 , 124 S.E. 247 , 1924 Va. LEXIS 154 (1924).

    Failure to dismiss attachment held not error. —

    Where the principal defendant assigned as error the failure to dismiss the attachment because the executor of an estate who was indebted to, and had in his possession property belonging to the principal defendant, was made a party defendant before there had been an ascertainment of whether there were any prior liens on the principal defendant’s share of the estate, as there had been a general appearance by the principal defendant under this section, there was no issue before the Supreme Court with regard to the attachment. Continental Trust Co. v. Witt, 139 Va. 458 , 124 S.E. 265 , 1924 Va. LEXIS 123 (1924).

    § 8.01-570. Judgment, etc., of court when claim of plaintiff established.

    If the claim of the plaintiff be established, judgment shall be rendered for him, and the court shall dispose of the specific property levied on, as may be right, and order the sale of any other effects or real estate which shall not have been previously released or sold under this chapter, and direct the proceeds of sale, and whatever else is subject to the attachment, including what is embraced by such forthcoming bond, to be applied in satisfaction of the judgment.

    History. Code 1950, § 8-558; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 52, 55.

    CASE NOTES

    Attachment proceedings include both establishment of a lien on the property attached and execution of the lien through a judicial sale, after adjudication of the petitioner’s right thereto. Hence, the attachment proceeding in effect incorporates an action to foreclose on the lien that is created by the attachment. Eastern Indem. Co. v. J.D. Conti Elec. Co., 573 F. Supp. 1036, 1983 U.S. Dist. LEXIS 12133 (E.D. Va. 1983).

    Plaintiff is entitled to personal judgment. —

    The attaching creditor, having established his debt, is entitled to a personal decree against the absent debtor though the whole property attached is exhausted in paying the debt of the home defendant. Williamson v. Gayle, 48 Va. (7 Gratt.) 152, 1850 Va. LEXIS 27 (1850) (see also Hairston v. Medley, 42 Va. (1 Gratt.) 96 (1844); Schofield v. Cox, 49 Va. (8 Gratt.) 533 (1852). The cases cited above were decided under prior law).

    Order of sale is not personal judgment. —

    An order in an attachment case which recites that it appears to the satisfaction of the court that the defendant is indebted to the plaintiff in a stated sum, and directs a sale of the attached effects, or so much thereof as may be necessary to pay the sum so stated, is not a personal judgment against the defendant, but reaches only the goods attached. Bernard v. McClanahan, 115 Va. 453 , 79 S.E. 1059 , 1913 Va. LEXIS 56 (1913) (decided under prior law).

    The judgment must require plaintiff to give security as provided in § 8.01-571 . Watts Ex'rs v. Robertson, 14 Va. (4 Hen. & M.) 442, 1809 Va. LEXIS 80 (1809) (decided under prior law).

    Judgment for interest. —

    If the attachment demands only principal and costs, the court cannot give judgment for interest. George v. Blue, 7 Va. (3 Call) 455, 1803 Va. LEXIS 23 (1803) (decided under prior law).

    § 8.01-571. When defendant not served fails to appear plaintiff required to give bond.

    If the principal defendant has not appeared or been served with a copy of the attachment ten days before the judgment therein mentioned, the plaintiff shall not have the benefit of § 8.01-570 unless and until he shall have given bond with sufficient surety in such penalty as the court shall approve, with condition to perform such future order as may be made upon the appearance of such defendant and his making defense. If the plaintiff fail to give such bond in a reasonable time, the court shall dispose of the estate attached, or the proceeds thereof, as to it shall seem just.

    History. Code 1950, § 8-542; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 55.

    CASE NOTES

    Bond is not necessary if defendant has been served. —

    If it appears that a copy of the attachment was served on the defendant 60 (now 10) days before a decree (now a judgment) for the sale of land attached, the order for the sale may be made without requiring the bond provided for in this section. Anderson v. Johnson, 73 Va. (32 Gratt.) 558, 1879 Va. LEXIS 87 (1879) (decided under prior law).

    Or if time for rehearing case has expired. —

    The time allowed by § 8.01-575 , within which a case may be reheard, having expired, a plaintiff is entitled to the benefit of a decree without giving the security originally required. Ross v. Austin, 14 Va. (4 Hen. & M.) 502, 1810 Va. LEXIS 28 (1810) (decided under prior law).

    § 8.01-572. Sale of real estate attached.

    No real estate shall be sold until all other property and money subject to the attachment have been exhausted, and then only so much thereof as is necessary to pay the judgment. Upon a sale of real estate, under an attachment the court shall have the same powers and jurisdiction, and like proceedings thereon may be had, as if it were a sale of real estate by a court of equity exercising general equity powers.

    History. Code 1950, § 8-559; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 55.

    § 8.01-573. How and when claims of other persons to property tried.

    Any person may file his petition at any time before the property attached as the estate of a defendant is sold or the proceeds of sale paid to the plaintiff under the judgment, disputing the validity of the plaintiff’s attachment thereon, or stating a claim thereto, or an interest in or lien on the same, under any other attachment or otherwise, and its nature, and upon giving security for cost, the court, without any other pleading, shall inquire into such claim, or, if either party demand it, impanel a jury for that purpose. If it be found that the petitioner has title to, or a lien on, or any interest in, such property, or its proceeds, the court shall make such order as may be necessary to protect his rights. The costs of such inquiry shall be paid by either party, at the discretion of the court.

    History. Code 1950, § 8-560; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 73, 74, 75, 76, 78, 80.

    CASE NOTES

    Editor’s note.

    Most of the cases cited below were decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    This section was intended for the protection of the rights of third parties, and not of the plaintiff in the attachment. Littell v. Lansburg Furn. & Carpet Co., 96 Va. 540 , 32 S.E. 63 , 1899 Va. LEXIS 98 (1899).

    It protects equitable as well as legal rights. —

    The evident purpose of this section was to protect the equitable as well as the legal rights and interests of third persons in the attachment proceedings, and that the lien of the attaching creditor should be subordinated to all such rights and interests as exist at the time the attachment is levied. Barnes v. American Fertilizer Co., 144 Va. 692 , 130 S.E. 902 , 1925 Va. LEXIS 228 (1925).

    Wife’s interest in divorce settlement will be protected. —

    A decree in a divorce suit approving an agreement between the parties to transfer the husband’s real estate to the wife and children, in the absence of fraud or collusion, under this section vests the wife and children with an equitable interest which is superior to a subsequent attachment against the husband and which will be protected under this section. Barnes v. American Fertilizer Co., 144 Va. 692 , 130 S.E. 902 , 1925 Va. LEXIS 228 (1925).

    Plaintiff in attachment cannot unite with trustees in deed of trust. —

    A plaintiff in attachment, who has a deed of trust on the property attached, cannot unite with the trustees in the deed and come into the attachment suit by petition under this section and ask to have the attached property delivered to the trustees. Littell v. Lansburg Furn. & Carpet Co., 96 Va. 540 , 32 S.E. 63 , 1899 Va. LEXIS 98 (1899).

    Proper issue. —

    Where a petitioner claims the attached property under this section, the proper issue to be tried is “whether or not petitioner has any title to, lien on or interest in the attached property or its proceeds.” Starke v. Scott, 78 Va. 180 , 1883 Va. LEXIS 26 (1883).

    Hearing by consent. —

    Where, in attachment against property of nonresident debtors, who had not been served with process personally or by publication, complainants consented to the hearing of a motion by a claimant of the property to abate the attachment, a decree abating the attachment, and declaring the estate not to belong to the debtors, was not premature or erroneous. Kern v. Wyatt, 89 Va. 885 , 17 S.E. 549 , 1893 Va. LEXIS 117 (1893).

    § 8.01-574. Attachments in connection with pending suits or actions.

    If an attachment be desired in connection with a pending suit or action, a petition for an attachment may be filed in the same court in which such suit or action is pending, and the procedure thereon shall be the same as if no suit or action were pending; but the attachment may be heard along with any suit in equity relating to the same subject so far as may be necessary for the convenient administration of justice. The suing out of an attachment in connection with a pending suit or action shall not be deemed the prosecution of a second action for the same cause.

    History. Code 1950, § 8-561; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, §§ 4, 5.

    § 8.01-575. Rehearing permitted when judgment rendered on publication.

    If a defendant, against whom, on publication, judgment is rendered under any attachment, or his personal representative, shall return to or appear openly in this Commonwealth, he may, within one year after a copy of such judgment shall be served on him at the instance of the plaintiff, or within two years from the date of the judgment, if he be not so served, petition to have the proceedings reheard. On giving security for costs he shall be admitted to make defense against such judgment, as if he had appeared in the case before the same was rendered, except that the title of any bona fide purchaser to any property, real or personal, sold under such attachment, shall not be brought in question or impeached. But this section shall not apply to any case in which the petitioner, or his decedent, was served with a copy of the attachment more than ten days before the date of the judgment, or to any case in which he appeared and made defense.

    History. Code 1950, § 8-562; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-575 is former § 8-562. The present five-year period of limitation has been reduced to two years in order to comport with § 8.01-322 , relating to orders of publication generally.

    Former Article 4, which consisted of one section, § 8-564, dealing with attachment for a claim not exceeding twenty dollars, has been deleted since such a claim is de minimis and would not likely merit the attachment remedy.

    Former Article 5, dealing with the attachment of rent and consisting of §§ 8-566 through 8-568, has been deleted as rent is no longer to be accorded separate treatment for attachment purposes.

    Former Article 6, comprised of §§ 8-569 through 8-577, dealing with capias ad respondendum, has been deleted as obsolete and unnecessary.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 53.

    CASE NOTES

    Editor’s note.

    Section limits rights of nonresidents. —

    Nonresidents labor under no disability with respect to the right to institute or prosecute suit at any time to assert or preserve any right of action they may have, and no such right is reserved to them by statute. On the contrary when proceeded against by order of publication, etc., their rights in this respect are restricted and limited by this section and § 8.01-322 . Baber v. Baber, 121 Va. 740 , 94 S.E. 209 , 1917 Va. LEXIS 72 (1917).

    Absent defendant may appear while suit is pending. —

    Under this section a defendant in a foreign attachment may appear at any time pending the suit, and have the cause reheard, tendering security for costs. Anderson v. Johnson, 73 Va. (32 Gratt.) 558, 1879 Va. LEXIS 87 (1879).

    After judgment, sole remedy is under this section. —

    An absent defendant, against whom a decree (now judgment) has been made, cannot appeal from the decree. His only remedy is that provided by this section. Platt v. Howland, 37 Va. (10 Leigh) 507, 1839 Va. LEXIS 55 (1839); Barbee & Co. v. Pannill, 47 Va. (6 Gratt.) 442, 1849 Va. LEXIS 66 (1849).

    Effect on judgment upon filing petition. —

    Where nonresident defendants filed a petition in strict conformity with this section, and were never at any time prior to filing their petition served with process or a copy of the attachment, nor did they appear or make any defense, the judgment granted by the court against the defendants fixing a personal liability upon them lost that effect upon the filing of defendants’ petition, for this section allowed them to make defense against the judgment as if they had appeared in the case before the same was rendered. This could only mean that they were to be in no wise prejudiced by the judgment, but should occupy the same position as if no such judgment had been rendered. Wessel, Duval & Co. v. Winborn & Co., 125 Va. 502 , 99 S.E. 719 , 1919 Va. LEXIS 40 (1919).

    Service out of State does not affect right to rehearing. —

    Under this section, defendants in foreign attachment may appear pending the suit, tender security for costs and have it reheard. The exception of a defendant served with a copy of the attachment, or with process in the suit, does not refer to a service thereof outside the proceedings in the suit or outside the State; such service can have no greater effect than an order of publication duly posted and published. This rule applies also to acknowledgments of such services made outside the State. Anderson v. Johnson, 73 Va. (32 Gratt.) 558, 1879 Va. LEXIS 87 (1879); Smith & Winnsatt v. Chilton, 77 Va. 535 , 1883 Va. LEXIS 87 (1883).

    This section applies to attachment against a foreign corporation not doing business in the State, for breach of a contract made out of the State. Smith v. Life Ass'n of Am., 76 Va. 380 , 1882 Va. LEXIS 42 (1882).

    § 8.01-576. Order of court on rehearing or new trial; restitution to defendant.

    On any rehearing or new trial had under § 8.01-575 , the court may order the plaintiff in the original attachment to restore any money paid to him under such judgment to such defendant if living, or if dead to the heir or personal representative of such defendant, as the same may be, the proceeds of real or personal estate, and enter a judgment therefor against him; or it may confirm the former judgment. In either case it shall adjudge the costs of the prevailing party.

    History. Code 1950, § 8-563; 1977, c. 617.

    Law Review.

    For article, “Explaining Restitution,” see 71 Va. L. Rev. 65 (1985).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Attachment and Garnishment, § 88.

    Chapter 20.1. Summary Jury Trial.

    § 8.01-576.1. Election by parties; order of court.

    In any civil action pending before a circuit court, the parties may, by agreement in writing submitted to the court at any time prior to trial, elect to have a summary jury trial of the issues in the case in accordance with this chapter. However, where the court determines that the election is made for the purpose of delaying a trial on the merits, a summary jury trial shall not be had.

    History. 1988, c. 759.

    Michie’s Jurisprudence.

    For related discussion, see 11B M.J. Jury, § 3.

    § 8.01-576.2. Summary jury trial; selection of jury; fees.

    Upon election of the parties, the court shall schedule a summary jury trial to be held as soon as convenient. Notice shall be given to the parties by means adequate to ensure their presence at the time and place of the trial. Seven jurors shall be randomly selected in accordance with the procedures specified in Chapter 11 (§ 8.01-336 et seq.). Fees shall be allowed to jurors selected for a summary jury trial as provided in § 17.1-618 .

    History. 1988, c. 759.

    § 8.01-576.3. Procedures; verdict not binding unless otherwise agreed.

    A judge of the court having jurisdiction over the case shall preside over a summary jury trial. Counsel for the parties or, if a party is not represented by counsel, a party shall verbally present a summary of the issues in the case and the evidence on behalf of each party. Evidence for the plaintiff shall be presented first. Each party shall be given the opportunity to rebut the evidence of another party upon request. The testimony of witnesses and the submission of documentary evidence shall not be allowed except as stipulated or agreed to by the parties.

    Upon conclusion of the presentations of the summary evidence, the court shall instruct the jury on the law applicable to the cause. The jury shall advise the court of its verdict upon conclusion of the deliberations.

    Unless otherwise agreed by the parties in writing submitted to the court prior to a jury being impanelled pursuant to this chapter, the verdict of a summary jury shall not be binding on either party and shall not be admissible on any subsequent trial of the case. If the parties have agreed to be bound by the verdict, judgment shall be entered by the court in accordance with the verdict.

    History. 1988, c. 759.

    Chapter 20.2. Court-Referred Dispute Resolution Proceedings.

    § 8.01-576.4. Scope and definitions.

    The provisions of this chapter apply only to court-referred dispute resolution services.

    As used in this chapter:

    “Conciliation” means a process in which a neutral facilitates settlement by clarifying issues and serving as an intermediary for negotiations in a manner which is generally more informal and less structured than mediation.

    “Court” means any juvenile and domestic relations district court, general district court, circuit court, or appellate court, and includes the judges and any intake specialist to whom the judge has delegated specific authority under this chapter.

    “Dispute resolution proceeding” means any structured process in which a neutral assists disputants in reaching a voluntary settlement by means of dispute resolution techniques such as mediation, conciliation, early neutral evaluation, nonjudicial settlement conferences or any other proceeding leading to a voluntary settlement conducted consistent with the requirements of this chapter. The term includes the orientation session.

    “Dispute resolution program” means a program that offers dispute resolution services to the public, which is run by the Commonwealth or any private for-profit or not-for-profit organization, political subdivision, or public corporation, or a combination of these.

    “Dispute resolution services” includes screening and intake of disputants, conducting dispute resolution proceedings, drafting agreements and providing information or referral services.

    “Intake specialist” means an individual who is trained in analyzing and screening cases to assist in determining whether a case is appropriate for referral to a dispute resolution proceeding.

    “Mediation” means a process in which a neutral facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and to reach a mutually agreeable resolution to their dispute.

    “Neutral” means an individual who is trained or experienced in conducting dispute resolution proceedings and in providing dispute resolution services.

    “Orientation session” means a preliminary meeting during which the dispute resolution proceeding is explained to the parties and the parties and the neutral assess the case and decide whether to continue with a dispute resolution proceeding or adjudication.

    History. 1993, c. 905; 2002, c. 718.

    The 2002 amendments.

    The 2002 amendment by c. 718 inserted “Court-Referred” in the chapter head preceding this section; inserted the first paragraph; substituted “orientation” for “evaluation” in the final sentence of the definition of “dispute resolution proceeding”; deleted the definition of “evaluation session”; substituted “to reach a mutually agreeable resolution to” for “resolve” in the definition of “mediation”; and added the definition of “orientation session.”

    § 8.01-576.5. Referral of disputes to dispute resolution proceedings.

    While protecting the right to trial by jury, a court, on its own motion or on motion of one of the parties, may refer any contested civil matter, or selected issues in a civil matter, to an orientation session in order to encourage the early resolution of disputes through the use of procedures that facilitate (i) open communication between the parties about the issues in the dispute, (ii) full exploration of the range of options to resolve the dispute, (iii) improvement in the relationship between the parties, and (iv) control by the parties over the outcome of the dispute. The neutral or intake specialist conducting the orientation session shall provide information regarding dispute resolution options available to the parties, screen for factors that would make the case inappropriate for a dispute resolution proceeding, and assist the parties in determining whether their case is suitable for a dispute resolution process such as mediation. The court shall set a date for the parties to return to court in accordance with its regular docket and procedure, irrespective of the referral to an orientation session. The parties shall notify the court, in writing, if the dispute is resolved prior to the return date.

    Upon such referral, the parties shall attend one orientation session unless excused pursuant to § 8.01-576.6 . Further participation in a dispute resolution proceeding shall be by consent of all parties. Attorneys for any party may participate in a dispute resolution proceeding.

    History. 1993, c. 905; 2002, c. 718.

    Cross references.

    As to mandatory dispute resolution orientation sessions, see § 25.1-205.1 .

    The 2002 amendments.

    The 2002 amendment by c. 718, in the first paragraph, substituted “an orientation session” for “a dispute resolution evaluation” and “resolution” for “settlement” in the first sentence, added the second sentence, and substituted “orientation” for “evaluation” in the third sentence; in the final paragraph, substituted “orientation” for “evaluation” in the first sentence, and substituted “participate in” for “be present during” in the last sentence.

    § 8.01-576.6. Notice and opportunity to object.

    When a court has determined that referral to an orientation session is appropriate, an order of referral to a neutral or to a dispute resolution program shall be entered and the parties shall be so notified as expeditiously as possible. The court shall excuse the parties from participation in an orientation session if, within fourteen days after entry of the order, a written statement signed by any party is filed with the court, stating that the dispute resolution process has been explained to the party and he objects to the referral.

    History. 1993, c. 905; 2002, c. 718.

    The 2002 amendments.

    The 2002 amendment by c. 718 twice substituted “an orientation” for “a dispute resolution evaluation.”

    § 8.01-576.7. Costs.

    The orientation session shall be conducted at no cost to the parties. Unless otherwise provided by law, the cost of any subsequent dispute resolution proceeding shall be as agreed to by the parties and the neutral.

    History. 1993, c. 905; 2002, c. 718.

    The 2002 amendments.

    The 2002 amendment by c. 718 rewrote the section.

    § 8.01-576.8. Qualifications of neutrals; referral.

    A neutral who provides dispute resolution services other than mediation pursuant to this chapter shall provide the court with a written statement of qualifications, describing the neutral’s background and relevant training and experience in the field. A dispute resolution program may satisfy the requirements of this section on behalf of its neutrals by providing the court with a written statement of the background, training, experience, and certification, as appropriate, of any neutral who participates in its program. A neutral who desires to provide mediation and receive referrals from the court shall be certified pursuant to guidelines promulgated by the Judicial Council of Virginia. The court shall maintain a list of mediators certified pursuant to guidelines promulgated by the Judicial Council and may maintain a list of neutrals and dispute resolution programs which have met the requirements of this section. The list may be divided among the areas of specialization or expertise of the neutrals.

    At the conclusion of the orientation session, or no later than ten days thereafter, parties electing to continue with the dispute resolution proceeding may: (i) continue with the neutral who conducted the orientation session, (ii) select any neutral or dispute resolution program from the list maintained by the court to conduct such proceedings, or (iii) pursue any other alternative for voluntarily resolving the dispute to which the parties agree. If the parties choose to proceed with the dispute resolution proceeding but are unable to agree on a neutral or dispute resolution program during that period, the court shall refer the case to a neutral or dispute resolution program who accepts such referrals, on the list maintained by the court on the basis of a fair and equitable rotation, taking into account the subject matter of the dispute and the expertise of the neutral, as appropriate. If one or more of the parties is indigent or no agreement as to payment is reached between the parties and a neutral, the court shall set a reasonable fee for the service of any neutral who accepts such referral pursuant to this paragraph.

    History. 1993, c. 905; 2002, c. 718.

    Cross references.

    For requirement that mediators eligible to receive court referrals pursuant to § 8.01-576.8 report the matter when they have reason to suspect that a child is abused or neglected, see § 63.2-1509.

    The 2002 amendments.

    The 2002 amendment by c. 718, in the first paragraph, deleted the former second sentence, which read: “A mediator who desires to receive referrals from the court shall be certified pursuant to guidelines promulgated by the Judicial Council of Virginia,” inserted the present third sentence, inserted “mediators certified pursuant to guidelines promulgated by the Judicial Council and may maintain a list of” in the fourth sentence, and substituted “of” for “maintained by” following “expertise” in the final sentence; in the final paragraph, twice substituted “orientation” for “evaluation,” inserted “who accepts such referrals” in the second sentence, and added the final sentence.

    § 8.01-576.9. Standards and duties of neutrals; confidentiality; liability.

    A neutral selected to conduct a dispute resolution proceeding under this chapter may encourage and assist the parties in reaching a resolution of their dispute, but may not compel or coerce the parties into entering into a settlement agreement. A neutral has an obligation to remain impartial and free from conflict of interests in each case, and to decline to participate further in a case should such partiality or conflict arise. Unless expressly authorized by the disclosing party, the neutral may not disclose to either party information relating to the subject matter of the dispute resolution proceeding provided to him in confidence by the other. In reporting on the outcome of the dispute resolution proceeding to the referring court, the neutral shall indicate whether an agreement was reached, the terms of the agreement if authorized by the parties, the fact that no agreement was reached, or the fact that the orientation session or mediation did not occur. The neutral shall not disclose information exchanged or observations regarding the conduct and demeanor of the parties and their counsel during the dispute resolution proceeding, unless the parties otherwise agree.

    However, where the dispute involves the support of minor children of the parties, the parties shall disclose to each other and to the neutral the information to be used in completing the child support guidelines worksheet required by § 20-108.2 . The guidelines computations and any reasons for deviation shall be incorporated in any written agreement between the parties.

    With respect to liability, when mediation is provided by a mediator who is certified pursuant to guidelines promulgated by the Judicial Council of Virginia, then the mediator, mediation program for which the certified mediator is providing services, and a mediator co-mediating with a certified mediator shall be immune from civil liability for, or resulting from, any act or omission done or made while engaged in efforts to assist or conduct a mediation, unless the act or omission was made or done in bad faith, with malicious intent or in a manner exhibiting a willful, wanton disregard of the rights, safety or property of another. This language is not intended to abrogate any other immunity that may be applicable to a mediator.

    History. 1993, c. 905; 1994, c. 687; 2002, c. 718.

    The 2002 amendments.

    The 2002 amendment by c. 718, in the fourth sentence of the first paragraph, substituted “whether an agreement was” for “only the terms of any agreement,” substituted “the terms of the agreement if authorized by the parties” for “or,” and inserted “or the fact that the orientation session or mediation did not occur”; substituted “to each other” for “between themselves” in the first sentence in the second paragraph; and rewrote the third paragraph, which formerly read: “With respect to liability, the provisions of § 8.01-581.23 shall apply in claims arising out of services rendered by any neutral.”

    § 8.01-576.10. Confidentiality of dispute resolution proceeding.

    All memoranda, work products and other materials contained in the case files of a neutral or dispute resolution program are confidential. Any communication made in or in connection with the dispute resolution proceeding that relates to the controversy, including screening, intake and scheduling a dispute resolution proceeding, whether made to the neutral or dispute resolution program staff or to a party, or to any other person, is confidential. However, a written settlement agreement signed by the parties shall not be confidential, unless the parties otherwise agree in writing.

    Confidential materials and communications are not subject to disclosure in discovery or in any judicial or administrative proceeding except (i) where all parties to the dispute resolution proceeding agree, in writing, to waive the confidentiality, (ii) in a subsequent action between the neutral or dispute resolution program and a party to the dispute resolution proceeding for damages arising out of the dispute resolution proceeding, (iii) statements, memoranda, materials and other tangible evidence, otherwise subject to discovery, that were not prepared specifically for use in and actually used in the dispute resolution proceeding, (iv) where a threat to inflict bodily injury is made, (v) where communications are intentionally used to plan, attempt to commit, or commit a crime or conceal an ongoing crime, (vi) where an ethics complaint is made against the neutral by a party to the dispute resolution proceeding to the extent necessary for the complainant to prove misconduct and the neutral to defend against such complaint, (vii) where communications are sought or offered to prove or disprove a claim or complaint of misconduct or malpractice filed against a party’s legal representative based on conduct occurring during a mediation, (viii) where communications are sought or offered to prove or disprove any of the grounds listed in § 8.01-576.12 in a proceeding to vacate a mediated agreement, or (ix) as provided by law or rule. The use of attorney work product in a dispute resolution proceeding shall not result in a waiver of the attorney work product privilege.

    History. 1993, c. 905; 1994, c. 687; 2002, c. 718; 2013, cc. 283, 383.

    The 2002 amendments.

    The 2002 amendment by c. 718, in the first paragraph, substituted “and” for “or” following “products” in the first sentence, in the second sentence, inserted “including screening, intake and scheduling a dispute resolution proceeding,” inserted “staff” following “program,” and deleted “if made at a dispute resolution proceeding” following “person,” and inserted “signed by the parties” in the final sentence; in the second paragraph, inserted “in discovery or,” deleted “or” preceding clause (iii), and inserted clauses (iv) to (ix).

    The 2013 amendments.

    The 2013 amendments by cc. 283 and 383 are identical, and substituted “that relates” for “which relates” in the second sentence of the first paragraph; substituted “that were” for “which were” in clause (iii) of the second paragraph; and deleted the former third paragraph which read: “Notwithstanding the provisions of this section, in any case where the dispute involves support of the minor children of the parties, financial information, including information contained in the child support guidelines worksheet, and written reasons for any deviation from the guidelines shall be disclosed to each party and the court for the purpose of computing a basic child support amount pursuant to § 20-108.2 .”

    Law Review.

    For annual survey article, “Family Law,” see 48 U. Rich. L. Rev. 135 (2013).

    CASE NOTES

    Objection to use at trial. —

    Although admission of the evidence challenged in the two assignments of error relying on this section was the subject of several objections by plaintiff’s counsel during the hearing, not once did counsel cite to the trial judge or rely on this section, or any other statute dealing with dispute resolution proceedings. Thus, the trial court was never afforded the opportunity to address and rule on the issues that the plaintiff now raises, and the state supreme court will not consider them for the first time on appeal. Snyder-Falkinham v. Stockburger, 249 Va. 376 , 457 S.E.2d 36, 1995 Va. LEXIS 56 (1995).

    § 8.01-576.11. Effect of written settlement agreement.

    If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract. Upon request of all parties and consistent with law and public policy, the court shall incorporate the written agreement into the terms of its final decree disposing of a case. In cases in which the dispute involves support for the minor children of the parties, an order incorporating a written agreement shall also include the child support guidelines worksheet and, if applicable, the written reasons for any deviation from the guidelines. The child support guidelines worksheet shall be attached to the order.

    History. 1993, c. 905; 1994, c. 687.

    CASE NOTES

    Authority. —

    Circuit court certainly has authority to allow the parties to enter into an agreement that disposes of a case instead of going to trial. Reilly v. Reilly, 2016 Va. App. LEXIS 343 (Va. Ct. App. Dec. 13, 2016).

    § 8.01-576.12. Vacating orders and agreements.

    Upon the filing of an independent action by a party, the court shall vacate a mediated agreement reached in a dispute resolution proceeding pursuant to this chapter, or vacate an order incorporating or resulting from such agreement, where:

    1. The agreement was procured by fraud or duress, or is unconscionable;
    2. If property or financial matters in domestic relations cases involving divorce, property, support or the welfare of a child are in dispute, the parties failed to provide substantial full disclosure of all relevant property and financial information; or
    3. There was evident partiality or misconduct by the neutral, prejudicing the rights of any party.For purposes of this section, “misconduct” includes failure of the neutral to inform the parties in writing at the commencement of the mediation process that: (i) the neutral does not provide legal advice, (ii) any mediated agreement may affect the legal rights of the parties, (iii) each party to the mediation has the opportunity to consult with independent legal counsel at any time and is encouraged to do so, and (iv) each party to the mediation should have any draft agreement reviewed by independent counsel prior to signing the agreement.The fact that any provisions of a mediated agreement were such that they could not or would not be granted by a court of law or equity is not, in and of itself, grounds for vacating an agreement.A motion to vacate under this section shall be made within two years after the mediated agreement is entered into, except that, if predicated upon fraud, it shall be made within two years after these grounds are discovered or reasonably should have been discovered.

    History. 1993, c. 905; 2002, c. 718.

    Cross references.

    As to disclosure of confidential materials and communications under the Virginia Administrative Dispute Resolution Act, § 2.2-4115 et seq., see § 2.2-4119.

    The 2002 amendments.

    The 2002 amendment by c. 718 inserted “in domestic relations cases involving divorce, property, support or the welfare of a child” in subdivision 2; and in the paragraph following subdivision 3, substituted “may affect” for “will affect” in clause (ii) and deleted “or should waive his opportunity to do so” at the end of clause (iv).

    Chapter 21. Arbitration and Award.

    Article 1. General Provisions.

    § 8.01-577. Submission of controversy; agreement to arbitrate; condition precedent to action.

    1. Persons desiring to end any controversy, whether there is a suit pending therefor or not, may submit the same to arbitration, and agree that such submission may be entered of record in any circuit court or entered by order of any general district court. Upon proof of such agreement out of court, or by consent of the parties given in court in person or by counsel, it shall be entered in the proceedings of such court. Thereupon a rule shall be made that the parties shall submit to the award which shall be made in accordance with such agreement and the provisions of this chapter.
    2. Neither party shall have the right to revoke an agreement to arbitrate except on a ground which would be good for revoking or annulling other agreements. Submission of any claim or controversy to arbitration pursuant to such agreement shall be a condition precedent to institution of suit or action thereon, and the agreement to arbitrate shall be enforceable, unless the agreement also provides that submission to arbitration shall not be a condition precedent to suit or action.

    History. Code 1950, § 8-503; 1968, c. 244; 1977, c. 617; 1983, c. 485; 1986, c. 614; 2016, c. 181.

    Cross references.

    As to compromise of wrongful death claim, see § 8.01-55 .

    As to approval of compromises on behalf of persons under a disability, see § 8.01-424 .

    As to compromise by fiduciaries, see § 8.01-425 .

    As to the Uniform Arbitration Act, see § 8.01-581.01 et seq.

    As to arbitration of medical malpractice claims, see § 8.01-581.12 .

    As to compromise and satisfaction in general, see §§ 11-10 through 11-13 .

    As to bribery of arbitrators, see § 18.2-441 .

    The 2016 amendments.

    The 2016 amendment by c. 181 substituted “circuit court or entered by order of any general district court” for “court” in subsection A.

    Law Review.

    For survey of Virginia commercial law for the year 1972-1973, see 59 Va. L. Rev. 1426 (1973).

    For comment, “Toward a Uniform State Product Liability Law — Virginia and the Uniform Product Liability Act,” see 36 Wash. & Lee L. Rev. 1145 (1979).

    For comment, “The Enforceability of Arbitration Clauses in Virginia Marital Separation Agreements,” see 19 U. Rich. L. Rev. 333 (1985).

    For 1985 survey of Virginia civil procedure and practice, see 19 U. Rich. L. Rev. 679 (1985).

    For an article, “As Mandatory Binding Arbitration Meets the Class Action, Will the Class Action Survive?,” see 42 Wm. & Mary L. Rev. 1 (2000).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arbitration and Award, §§ 2, 4, 5, 6, 7, 12, 16, 32, 43.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Applicability of federal law. —

    Though state law might in some cases be applied in a diversity action to determine whether a right to arbitrate exists, federal law will preempt state law if the contract underlying a potentially arbitrable dispute evidences a transaction involving interstate commerce. Maxum Founds., Inc. v. Salus Corp., 779 F.2d 974, 1985 U.S. App. LEXIS 25715 (4th Cir. 1985).

    Where owner confessed error on issue of whether arbitration agreement with contractor was mandatory and irrevocable, but nevertheless, the owner argued waiver on appeal, a proposition never decided by the trial court and never preserved for appellate review by an assignment of cross-error, judgment below was reversed and the case was remanded with direction that the trial court stay the proceedings in the civil action to permit the controversy to be submitted to arbitration, according to the provisions of the contract and the provisions of this section. Maynard Constr. Co. v. Driver, 230 Va. 79 , 334 S.E.2d 567, 1985 Va. LEXIS 253 (1985).

    The Commonwealth is not estopped to deny the validity of an ultra vires contract containing an arbitration clause because its agents executed the document nor is it estopped to deny the validity of the arbitrator’s award because its agents performed the contract by participating in the arbitration proceedings. An ultra vires contract is void ab initio — not voidable only, but wholly void, and of no legal effect, and no performance on either side can give the unlawful contract any validity, or be the foundation of any right of action upon it. When the contract is once declared ultra vires, the fact that it is executed does not validate it, nor can it be ratified so as to make it the basis of suit or action, nor does the doctrine of estoppel apply. Richard L. Deal & Assocs. v. Commonwealth, 224 Va. 618 , 299 S.E.2d 346, 1983 Va. LEXIS 169 (1983).

    Waiver. —

    A judgment creditor did not waive its rights by failing to intervene in arbitration, when the garnishee refused the judgment creditor’s request to be allowed to participate; once the garnishee withheld consent, the judgment creditor was not obligated to seek intervention through the defaulting judgment debtor or to seek a court order allowing intervention; nothing in the garnishment statutes, or in the statutes dealing with arbitration, requires such action by a judgment creditor. Virginia Bldrs' Supply, Inc. v. Brooks & Co., 250 Va. 209 , 462 S.E.2d 85, 12 Va. Law Rep. 230, 1995 Va. LEXIS 98 (1995).

    B.Submission.

    The Commonwealth is not a “person” or “party” authorized by this section to enter into a written agreement to arbitrate which will be as binding as any other agreement. Richard L. Deal & Assocs. v. Commonwealth, 224 Va. 618 , 299 S.E.2d 346, 1983 Va. LEXIS 169 (1983).

    The General Assembly did not intend to include the Commonwealth as a person or party within the contemplation of the arbitration statutes, and its agents have no authority to bind it to an arbitration agreement. Richard L. Deal & Assocs. v. Commonwealth, 224 Va. 618 , 299 S.E.2d 346, 1983 Va. LEXIS 169 (1983).

    While the word “person” may extend and be applied to bodies politic and corporate as well as individuals, and the word may apply to counties and cities under certain circumstances, the sovereign is a person or party within the intendment of a statute only when the General Assembly names it expressly or by necessary implication. Nothing in the legislative history of the arbitration statutes supports the implication that the Commonwealth is a “person” or “party” within the meaning of this section. Richard L. Deal & Assocs. v. Commonwealth, 224 Va. 618 , 299 S.E.2d 346, 1983 Va. LEXIS 169 (1983).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Section enlarges common-law arbitration. —

    At common law two kinds of submission and award were known. The first was upon a submission in pais, or in the country, and was where, in the absence of any pending suit, parties agreed to submit their then existing controversies to arbitration. The second was a submission made in a pending suit, in which case the award was returnable to the court, and was enforced by a rule after notice to show cause against it. There is in Virginia, by virtue of this section, an additional or statutory submission or award, which arises when parties to an actual controversy then existing agree to submit their differences to arbitration, with the provision that the award so made may be returned to and entered as a judgment of the court. Edge Hill Stock Farm, Inc. v. Morris, 155 Va. 103 , 154 S.E. 473 , 1930 Va. LEXIS 149 (1930) (see Glovier v. Dingus, 173 Va. 268 , 4 S.E.2d 551 (1939); John W. Daniel & Co. v. Janaf, Inc., 169 F. Supp. 219 (E.D. Va. 1958), aff’d, 262 F.2d 958 (4th Cir. 1959)).

    This section, wherever applicable, must be applied in light of the terms of the arbitration agreement sought to be enforced. Doyle & Russell, Inc. v. Roanoke Hosp. Ass'n, 213 Va. 489 , 193 S.E.2d 662, 1973 Va. LEXIS 172 (1973).

    This section may prohibit revocation of an arbitration agreement. Doyle & Russell, Inc. v. Roanoke Hosp. Ass'n, 213 Va. 489 , 193 S.E.2d 662, 1973 Va. LEXIS 172 (1973).

    A party cannot be compelled to submit to arbitration unless he has first agreed to arbitrate. Doyle & Russell, Inc. v. Roanoke Hosp. Ass'n, 213 Va. 489 , 193 S.E.2d 662, 1973 Va. LEXIS 172 (1973).

    By the same token, he cannot be compelled to arbitrate a question which, under his agreement, is not arbitrable. And the resisting party is entitled to a presubmission judicial determination of arbitrability. Doyle & Russell, Inc. v. Roanoke Hosp. Ass'n, 213 Va. 489 , 193 S.E.2d 662, 1973 Va. LEXIS 172 (1973).

    It is the province of the courts to determine the threshold question of arbitrability, given the terms of the contract between the parties. This is so because the extent of the duty to arbitrate, just as the initial duty to arbitrate at all, arises from contractual undertakings. Doyle & Russell, Inc. v. Roanoke Hosp. Ass'n, 213 Va. 489 , 193 S.E.2d 662, 1973 Va. LEXIS 172 (1973).

    Provision for arbitration in contract is no bar to action. —

    It cannot be doubted that a mere provision in a contract that all differences arising under it shall be submitted to arbitrators, thereafter to be chosen, will not prevent a party from maintaining a suit in the first instance in a court to enforce his rights under the contract. Condon v. South Side R.R., 55 Va. (14 Gratt.) 302, 1858 Va. LEXIS 48 (1858); Corbin v. Adams, 76 Va. 58 , 1881 Va. LEXIS 73 (1881); Rison v. Moon, 91 Va. 384 , 22 S.E. 165 , 1895 Va. LEXIS 36 (1895).

    An agreement to arbitrate not consummated by an award is held to be no bar to a suit at law or equity; nor can it be the foundation of a decree for specific execution. Parties litigant cannot by such agreements oust the jurisdiction of the courts or deprive themselves of the right to resort to the legal tribunals for the settlement of their controversies. United States ex rel. Air-Con, Inc. v. Al-Con Dev. Corp., 271 F.2d 904, 1959 U.S. App. LEXIS 5257 (4th Cir. 1959).

    The authority of arbitrators, where they are required to pass upon the ultimate liability of the parties, may be revoked at any time before the award is made, and the agreement to arbitrate will be no bar to an action on the original contract, because such a course is supposed to oust the courts of their jurisdiction. United States ex rel. Air-Con, Inc. v. Al-Con Dev. Corp., 271 F.2d 904, 1959 U.S. App. LEXIS 5257 (4th Cir. 1959).

    But arbitration may be made condition precedent to action. —

    In order for an agreement to arbitrate to be a bar to action it must appear by the agreement that the parties intended that the arbitration should be a condition precedent to action. Condon v. South Side R.R., 55 Va. (14 Gratt.) 302, 1858 Va. LEXIS 48 (1858); Corbin v. Adams, 76 Va. 58 , 1881 Va. LEXIS 73 (1881); Rison v. Moon, 91 Va. 384 , 22 S.E. 165 , 1895 Va. LEXIS 36 (1895).

    The general rule that an agreement for arbitration not consummated by an award is no bar to a suit at law or in equity is subject to an exception, namely, that the parties may, by contract, lawfully make the decision of the arbitrators a condition precedent to a right of action on the contract. In such case, until the decision is made, the courts have no jurisdiction of the case. United States ex rel. Air-Con, Inc. v. Al-Con Dev. Corp., 271 F.2d 904, 1959 U.S. App. LEXIS 5257 (4th Cir. 1959).

    Agreement to arbitrate does not lack consideration. —

    A dispute between a city and a streetcar company, as to the car company’s liabilities under its charter and under a contract, furnishes valuable consideration to support their agreement to arbitrate. McKennie v. Charlottesville & A. Ry., 110 Va. 70 , 65 S.E. 503 , 1909 Va. LEXIS 117 (1909).

    It may be by parol. —

    An agreement to arbitrate may be by parol, and where the submission does not require that the award be in writing, a parol award is binding, even though the controversy relates to the boundaries of land. Miller v. Miller, 99 Va. 125 , 37 S.E. 792 , 1901 Va. LEXIS 18 (1901); Cox v. Heuseman, 124 Va. 159 , 97 S.E. 778 , 1919 Va. LEXIS 119 (1919).

    Right to make motion for arbitration and petition for stay of proceedings. —

    In an action by one party to an arbitration agreement providing that an award should be a condition precedent to suit, the other party had the right to raise the issue of lack of jurisdiction of the district court over the subject matter by motion for arbitration and petition for stay of proceedings, and such right was not waived by the subsequent filing of an answer in the action. United States ex rel. Air-Con, Inc. v. Al-Con Dev. Corp., 271 F.2d 904, 1959 U.S. App. LEXIS 5257 (4th Cir. 1959).

    Where there was nothing to arbitrate, the court did right in annulling an agreement for arbitration in order to terminate the litigation. Corbin v. Adams, 76 Va. 58 , 1881 Va. LEXIS 73 (1881).

    B.Submission.
    1.Who May Make.

    Some of several heirs or distributees may make submission. —

    Where some of several heirs or distributees submit their interests to arbitration, the submission and the award made in pursuance thereof are binding on them, so far as their interests are concerned. Smith v. Smith, 25 Va. (4 Rand.) 95, 1826 Va. LEXIS 10 (1826); Boyd's Heirs v. Magruder's Heirs, 41 Va. (2 Rob.) 761, 1844 Va. LEXIS 12 (1844).

    A municipal corporation may submit disputed claims made against it, or made by it against others, to arbitration. McKennie v. Charlottesville & A. Ry., 110 Va. 70 , 65 S.E. 503 , 1909 Va. LEXIS 117 (1909).

    Submission by infant is not binding. —

    A submission by an infant, even though with an adult, is not binding on either party, even though the submission is by rule of court, and the award in his favor. Britton v. Williams' Devisees, 20 Va. (6 Munf) 453, 1819 Va. LEXIS 54 (1819).

    Partner cannot bind his copartner. —

    One partner has no authority by virtue of the partnership relation to bind his copartner by an agreement to submit claims or transactions growing out of the partnership business to arbitration, but the partner who makes the agreement is bound thereby, and the agreement is valid and binding between the parties thereto. Fletcher v. Pollard, 12 Va. (2 Hen. & M.) 544, 1808 Va. LEXIS 61 (1808); Wood v. Shepherd (1857); Forrer v. Coffman, 64 Va. (23 Gratt.) 871 (1873).

    Nor purchaser his vendor. —

    Where a dispute arises between a purchaser of property and a third party as to the ownership of the property, the purchaser cannot submit the matter to arbitration without authority from the vendor to do so; and if he does make the submission without authority, he has no remedy against the vendor where the award is made against him. Dust v. Conrod, 19 Va. (5 Munf) 411, 1817 Va. LEXIS 16 (1817).

    Nor tenant his landlord. —

    In an action of ejectment, brought against the person in possession, the landlord of such person may come in and be allowed to defend the action whether the actual relation of lessor and lessee exists between them or not, and this will be permitted even where the plaintiff and defendant in possession have submitted the matters between them to arbitration. Hanks v. Price, 73 Va. (32 Gratt.) 107, 1879 Va. LEXIS 50 (1879).

    2.What May Be Submitted.

    Parties may agree to settle boundaries by arbitration. —

    Parties may agree by parol to settle by arbitration the dividing line between their lots of land, and an award made in pursuance of submission for that purpose will bind the parties, although the arbitrators make a parol award, where the submission does not require the award to be in writing. Miller v. Miller, 99 Va. 125 , 37 S.E. 792 , 1901 Va. LEXIS 18 (1901); Cox v. Heuseman, 124 Va. 159 , 97 S.E. 778 , 1919 Va. LEXIS 119 (1919).

    Land established as public road cannot be affected. —

    No easement in land which has been established as a public road can be acquired by arbitration proceedings, to which the public is no party, between the original owner and the mover of prior proceedings to establish the road. Norfolk & W.R.R. v. Rasnake, 90 Va. 170 , 17 S.E. 879 , 1893 Va. LEXIS 29 (1893).

    Controversy may be submitted after default judgment. —

    After judgment by default has gone against the defendant and a writ of inquiry of damages has been awarded, a submission to arbitration may be made by the parties to the action without setting aside the judgment by default, and the submission is valid. Sutton v. Dickinson, 36 Va. (9 Leigh) 142, 1837 Va. LEXIS 66 (1837).

    3.Operation and Effect.

    The submission to arbitration of a pending suit operates as a release of all errors up to the time the submission was made. Ligon v. Ford, 19 Va. (5 Munf) 10, 1816 Va. LEXIS 2 (1816).

    Death of plaintiff does not avoid submission. —

    After submission to arbitration by rule of court, the plaintiff died, and the suit was revived by his administrator. The administrator of the plaintiff and the defendant proceeded in the arbitration, without any new submission, and an award was made. It was held that the death of the plaintiff did not avoid the submission, and the award under it was good. Wheatley v. Martin's Adm'r, 33 Va. (6 Leigh) 62, 1835 Va. LEXIS 15 (1835).

    CIRCUIT COURT OPINIONS

    Motion denied where mandatory arbitration clause was not applicable. —

    There was no evidence that the deceased’s son acted as the deceased’s agent in signing the admission document, and the healthcare center’s third-party beneficiary argument failed as the court noted that the wrongful death action arose after the decedent’s death and was brought by the executor rather than the decedent; thus, because the contract ended with the decedent’s death, the instant claims were neither dependent upon nor intertwined with and related to the contract. Bishop v. Med. Facilities of Am. XLVII(47), Ltd. P'ship, 65 Va. Cir. 187, 2004 Va. Cir. LEXIS 227 (Roanoke June 25, 2004).

    Non-signatories to subcontract could compel arbitration. —

    Non-signatories to subcontract could move to compel arbitration and could compel arbitration of each count of the subcontractor’s complaint against the business and non-signatories despite the complaint containing intentional tort claims as well as contract claims. The non-signatories could invoke the subcontract’s arbitration clause, as the subcontractor was equitably estopped to bar arbitration because each count of the complaint presumed the existence of the subcontract and, thus, directly related to the subcontract, and the intentional tort claims were closely intertwined with the contract claims. Decisive Analytics Corp. v. Chikar, 75 Va. Cir. 337, 2008 Va. Cir. LEXIS 79 (Fairfax County July 15, 2008).

    Arbitration was required under the contract. —

    Contract matter was stayed pending arbitration because, since the dispute between these parties concerned payment for work performed during the construction phase, the 1987 general conditions, which provided that any controversy or claim arising out of or related to the contract or the breach thereof, was to be settled by arbitration, applied. Therefore, because the parties contracted to submit any controversy or claim to arbitration, and no contract provision provided that arbitration would not be a condition precedent to suit or action, under applicable Virginia law, arbitration was a condition precedent to the suit. Dominion Consulting & Mgmt. v. Davis, 63 Va. Cir. 548, 2004 Va. Cir. LEXIS 3 (Fairfax County Jan. 13, 2004).

    Because an insurance policy included an arbitration clause for factual disputes, subsection B of § 8.01-577 required that the parties proceed to arbitration before any litigation could ensue. Because the arbitration clause was extremely broad, the parties’ factual dispute had to be submitted to arbitration before any cause of action arose. Putz v. Armtech Ins. Servs., 2008 Va. Cir. LEXIS 47 (Madison County Apr. 18, 2008).

    Builder’s motion to stay the proceedings pending mediation and binding arbitration was granted because the parties’ contract provided for binding arbitration, the scope of the contract covered the disputes between the builder and the buyers, and the buyers did not present sufficient evidence to show waiver. Winston v. Tingley Constr. Co., 97 Va. Cir. 163, 2013 Va. Cir. LEXIS 129 (Richmond 2013).

    §§ 8.01-578 through 8.01-580. Repealed by Acts 1986, c. 614.

    Cross references.

    As to the Uniform Arbitration Act, see § 8.01-581.01 et seq.

    § 8.01-581. Fiduciary may submit to arbitration.

    Any personal representative of a decedent, fiduciary of a person under a disability, or other fiduciary may submit to arbitration any suit or matter of controversy touching the estate or property of such decedent, or person under a disability or in respect to which he is trustee. And any submission so made in good faith, and the award made thereupon, shall be binding and entered as the judgment of a court, if so required by the agreement, in the same manner as other submissions and awards. No such fiduciary shall be responsible for any loss sustained by an award adverse to the interests of the person under a disability or beneficiary under any such trust, unless it was caused by his fault or neglect.

    History. Code 1950, § 8-507; 1977, c. 617.

    REVISERS’ NOTE

    The terms “fiduciary” and “person under a disability,” as defined in § 8.01-2 have been used in § 8.01-581 .

    Cross references.

    As to compromise by fiduciary, see §§ 8.01-55 , 8.01-424 , 8.01-425 .

    Law Review.

    For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arbitration and Award, § 8.

    CASE NOTES

    Where an executor declines to oppose the confirmation of an award, the next of kin may maintain the suit for the protection of infant heirs. Moore v. Luckess Next of Kin, 64 Va. (23 Gratt.) 160, 1873 Va. LEXIS 28 (1873) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Nonsignatories. —

    Timber company’s motion to compel arbitration was granted because a nonsignatory to a timber sale agreement was ordered to arbitrate a dispute under the principle of de facto merger as the nonsignatory and a signatory to the agreement shared an identity of interests. However, a title company, which was the legal title holder of the land where the timber was located, was dismissed from the case because it was not a necessary party as only the equitable title holders of the land where the timber was located were subject to the provisions of the agreement. Augusta Lumber Co. v. Broad Run Holdings, LLC, 71 Va. Cir. 326, 2006 Va. Cir. LEXIS 126 (Fairfax County Aug. 2, 2006).

    Stay pending appeal. —

    Since public policy favored arbitration, a stay pending appeal of the issue about whether arbitration could be compelled was proper, as the trial court could not say that the Virginia Supreme Court would look unfavorably on the argument that arbitration could be compelled, where the arbitration provision was incorporated into the sales agreement by reference, especially since if the Virginia Supreme Court found arbitration could be compelled, much time and money would be wasted by the litigants who had already gone to trial. Berger v. Pulte Home Corp., 55 Va. Cir. 36, 2001 Va. Cir. LEXIS 234 (Fairfax County Mar. 6, 2001).

    Article 2. Uniform Arbitration Act.

    § 8.01-581.01. Validity of arbitration agreement.

    A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, except upon such grounds as exist at law or in equity for the revocation of any contract. This article also applies to arbitration agreements between employers and employees or between their respective representatives unless otherwise provided in the agreement; provided, however, that nothing in this chapter shall be construed to create any right to arbitration with respect to any controversy regarding the employment or terms and conditions of employment of any officer or employee of the Commonwealth.

    History. 1986, c. 614.

    Uniform law cross references.

    For other signatory state provisions, see the following list. Note that some of the states listed below have adopted a revised version of the Uniform Arbitration Act.

    Arizona: A.R.S. §§ 12-1501 to 12-1518.

    Arkansas: A.C.A. §§ 16-108-201 to 16-108-224.

    Colorado: C.R.S. §§ 13-22-201 to 13-22-230.

    Delaware: 10 Del. C. §§ 5701 to 5725.

    Hawaii: H.R.S. §§ 658A-1 to 658A-29.

    Idaho: Idaho Code §§ 7-901 to 7-922.

    Illinois: 710 I.L.C.S. 5/1 to 5/23.

    Indiana: Burns Ind. Code Ann. §§ 34-57-2-1 to 34-57-2-20.

    Kansas: K.S.A. §§ 5-401 to 5-422.

    Kentucky: K.R.S. 417.045 to 417.240.

    Maine: 14 M.R.S. §§ 5927 to 5949.

    Maryland: Md. Courts and Judicial Proceedings Code Ann. §§ 3-201 to 3-234.

    Minnesota: Minn. Stat. §§ 572.08 to 572.30.

    Missouri: §§ 435.012 to 435.470 R.S.Mo.

    Montana: Mont. Code Anno. §§ 27-5-111 to 27-5-324.

    New Mexico: N.M. Stat. Ann. §§ 44-7A-1 to 44-7A-32.

    North Carolina: N.C. Gen. Stat. § 1-569.1 et seq.

    Oregon: O.R.S. §§ 36.600 to 36.740.

    Pennsylvania: 42 Pa.C.S. §§ 7301 to 7320.

    South Carolina: S.C. Code Ann. §§ 15-48-10 to 15-48-240.

    South Dakota: S.D. Codified Laws. §§ 21-25A-1 to 21-25-38.

    Tennessee: Tenn. Code Ann. §§ 29-5-301 to 29-5-320.

    Washington: Rev. Code Wash. §§ 7.04A.010 to 7.04A.903.

    Law Review.

    For an article, “As Mandatory Binding Arbitration Meets the Class Action, Will the Class Action Survive?,” see 42 Wm. & Mary L. Rev. 1 (2000).

    For note, “Judicial Review of Arbitration Awards Under State Law,” 96 Va. L. Rev. 887 (2010).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arbitration and Award, §§ 2, 12, 16, 54.

    CASE NOTES

    Duty to arbitrate and scope of arbitration determined by contract. —

    A party cannot be compelled to arbitrate a question that is not arbitrable under the agreement between the parties, and the extent of the duty to arbitrate, just as the initial duty to arbitrate at all, arises from contractual undertakings. Weitz v. Hudson, 262 Va. 224 , 546 S.E.2d 732, 2001 Va. LEXIS 81 (2001).

    No mutual assent. —

    There was no binding arbitration agreement under § 8.01-581.01 in a personal injury case due to a lack of mutual assent; an insurance carrier did not intend to be bound since certain terms were not included, it did not agree to certain dates, and an injured party’s attorney failed to return the signed documents; therefore, a trial court erred by ordering arbitration instead of a trial on the merits. Phillips v. Mazyck, 273 Va. 630 , 643 S.E.2d 172, 2007 Va. LEXIS 53 (2007).

    Standard of review involving arbitration agreements. —

    Nowhere in the Uniform Arbitration Act, as adopted by Virginia, are courts required to review an arbitration agreement in a domestic relations context with more scrutiny than other disputes; the standard of review involving arbitration agreements in domestic relations should conform to the standard set forth in this section. Bandas v. Bandas, 16 Va. App. 427, 430 S.E.2d 706, 9 Va. Law Rep. 1369, 1993 Va. App. LEXIS 159 (1993).

    Failure to hold hearing held reversible error. —

    Circuit court erred in affirming the arbitrators’ award that resulted from an arbitration proceeding that did not comply with the provisions of the Virginia Uniform Arbitration Act, § 8.01-581.01 et seq., as said failure, absent an agreement by the parties to waive a hearing, was tantamount to no arbitration; because the arbitration award was vacated, the circuit court was authorized to order a hearing before the original arbitrators or their successors in accordance with § 8.01-581.03 .Bates v. McQueen, 270 Va. 95 , 613 S.E.2d 566, 2005 Va. LEXIS 60 (2005).

    Arbitration provision held mandatory. —

    In light of public policy and the plain language of the agreement between the parties, power company and corporation constructing a power plant, disputed arbitration provision was held to provide for mandatory arbitration once arbitration was requested by either party. TM Delmarva Power, L.L.C. v. NCP of Va., L.L.C., 263 Va. 116 , 557 S.E.2d 199, 2002 Va. LEXIS 14 (2002).

    No appeal from order compelling arbitration. —

    Order that compelled arbitration of an employee’s claim against her employer pursuant to the Virginia Uniform Arbitration Act, § 8.01-581.01 et seq., was not a final judgment order for purposes of appeal as contemplated by subdivision A 3 of § 8.01-670 ; pursuant to § 8.01-581.010 , the trial court retained jurisdiction to vacate an arbitration award, and, pursuant to § 8.01-581.011 , the trial court retained jurisdiction to modify or correct an arbitration award. Seguin v. Northrop Grumman Sys. Corp., 277 Va. 244 , 672 S.E.2d 877, 2009 Va. LEXIS 30 (2009).

    No error in confirming arbitration award. —

    Circuit court did not err by refusing to vacate the portions of an arbitration award that upheld the forfeiture and appointment provisions of an operating agreement because the purpose of Va. Sup. Ct. R. pt. 6, § II, R. 1.8(a) was satisfied; thus, an attorney’s failure to obtain the signature of a holding company founder’s did not constitute a violation of any public policy, much less render the agreement void ab initio. Meuse v. Henry, 296 Va. 164 , 819 S.E.2d 220, 2018 Va. LEXIS 132 (2018).

    Circuit court did not err by refusing to vacate the portions of an arbitration award that upheld the forfeiture and appointment provisions of an operating agreement because those provisions were fair and reasonable to a limited liability company; consequently, the stockholder’s challenges failed to establish that the forfeiture and appointment provisions of the agreement were void ab initio. Meuse v. Henry, 296 Va. 164 , 819 S.E.2d 220, 2018 Va. LEXIS 132 (2018).

    Circuit court did not err by refusing to vacate the portions of an arbitration award that upheld the forfeiture and appointment provisions of an operating agreement because a stockholder did not establish the founder of a holding company was misled; thus, the stockholder failed to establish any void-ab-initio basis for refusing judicial enforcement of the arbitration award. Meuse v. Henry, 296 Va. 164 , 819 S.E.2d 220, 2018 Va. LEXIS 132 (2018).

    CIRCUIT COURT OPINIONS

    Duty to arbitrate enforceable by party alleged to have breached contract. —

    Seller could enforce the arbitration provision even though the buyer alleged that the seller breached the contract. The arbitration clause was remedial and did not tell the parties how to perform under the contract so the general rule that the first party to breach the contract could not enforce the contract did not apply. Tiernan v. NVR, Inc., 67 Va. Cir. 63, 2005 Va. Cir. LEXIS 173 (Loudoun County Feb. 10, 2005).

    Compelling arbitration was not warranted where the arbitration clause was unconscionable and arbitration clause in motor vehicle service contract required Virginia auto purchasers to arbitrate disputes in Los Angeles, pay all attorney fees and expenses, and split the cost of arbitration and fee of the arbitrator for no other reason than to deny the auto purchasers realistic relief in the event of a dispute over the vehicle’s warranties. Philyaw v. Platinum Enters., Inc., 54 Va. Cir. 364, 2001 Va. Cir. LEXIS 185 (Spotsylvania County 2001).

    Non-signatories to subcontract could compel arbitration. —

    Non-signatories to subcontract could compel arbitration pursuant to an arbitration clause in the relevant subcontract despite not having signed the subcontract as the subcontractor was equitably estopped to bar enforcement of the subcontract’s arbitration clause. All of the counts of the subcontractor’s complaint presumed the existence of the subcontract and, thus, directly related to the subcontract, and the intentional tort claims in the complaint could be arbitrated along with the contract claims since intentional tort claims and contract claims were closely intertwined. Decisive Analytics Corp. v. Chikar, 75 Va. Cir. 337, 2008 Va. Cir. LEXIS 79 (Fairfax County July 15, 2008).

    Standard of review involving arbitration agreements. —

    Trial court granted the bank and bank employee’s motion to compel arbitration and stay all proceedings, as the former bank employee’s intentional tort claims “arose out of” his employment relationship since the claims would not have occurred but for his employment, even though the former bank employee noted that the claims involved statements made at his termination and events occurring thereafter, and not matters that had happened while he was employed by the bank. Martino v. Banc of Am. Servs., 66 Va. Cir. 268, 2004 Va. Cir. LEXIS 323 (Charlottesville Dec. 6, 2004).

    Arbitration provision enforceable. —

    Arbitration provision was enforceable under § 8.01-581.01 because a valid written power of attorney delivered to the residential home at the time of the execution of the agreement was proof of agency of the executor to sign on behalf of the decedent; the agreement’s failure to nominate arbitrators did not invalidate the agreement. Fink v. Colonial Home, LLC, 81 Va. Cir. 207, 2010 Va. Cir. LEXIS 124 (Portsmouth Sept. 16, 2010).

    Arbitration agreement was not unconscionable where although it appeared to be a contract of adhesion, the location of arbitration was the jurisdiction in which the vehicle was purchased, the costs were apportioned evenly, and both parties were bound to accept the arbitrator’s decision; the fact that each party had a different carve-out from the arbitration requirement did not mean the arbitration agreement was wholly in favor of one party over the other and thus substantively unconscionable. Sanders v. Certified Car Ctr., Inc., 93 Va. Cir. 404, 2016 Va. Cir. LEXIS 100 (Fairfax County May 24, 2016).

    Arbitration agreement need not impose identical requirements on both parties in order to withstand a claim of unconscionability so long as the terms of the arbitration agreement are not so one-sided as to unfairly favor one party or impose upon that party burdens that would make arbitration an illusory remedy. Sanders v. Certified Car Ctr., Inc., 93 Va. Cir. 404, 2016 Va. Cir. LEXIS 100 (Fairfax County May 24, 2016).

    Employer and supervisor were entitled to stay proceedings and to compel arbitration pursuant to a dispute resolution agreement that a former employee signed because the agreement was enforceable as the agreement was supported by sufficient consideration, the agreement identified the parties and beneficiaries with reasonable certainty, the employee did not show undue influence, the agreement was not an unconscionable adhesion contract, the agreement was not too broad, and the employee’s claims were within the scope of the agreement. Fries v. Myers & Fitness Int'l, LLC, 106 Va. Cir. 335, 2020 Va. Cir. LEXIS 469 (Fairfax County Nov. 24, 2020).

    Compelling arbitration was not warranted. —

    Former trustee was not required to submit the trustee’s claims to arbitration because the litigation was not subject to the Virginia Uniform Arbitration Act, § 8.01-581.01 et seq., as the trust agreement was not a contract and the underlying controversy was not in existence at the time of the execution of the trust agreement. Kelly v. Giuliano, 106 Va. Cir. 93, 2020 Va. Cir. LEXIS 204 (Fairfax County Sept. 21, 2020).

    Arbitration provision held mandatory. —

    All claims against the former employee by the employer, except the commercial defamation claim, were subject to the mandatory arbitration clause of the noncompetition agreement. Joyner's Mech., Inc. v. Miller, 85 Va. Cir. 80, 2012 Va. Cir. LEXIS 166 (Chesapeake May 24, 2012).

    Waiver of arbitration. —

    Motion to stay proceedings and refer an alleged breach of a settlement agreement to arbitration was denied because, while litigation machinery was utilized in a way that would cause prejudice to one party, a full, fair, and comprehensive review of the facts of the case established waiver. Bolton v. McKinney, 97 Va. Cir. 7, 2017 Va. Cir. LEXIS 351 (Rockingham County Aug. 23, 2017).

    § 8.01-581.02. Proceedings to compel or stay arbitration.

    1. On application of a party showing an agreement described in § 8.01-581.01 , and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration. However, if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue of the existence of an agreement and shall order arbitration only if found for the moving party.
    2. On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.
    3. If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending in a court having jurisdiction to hear applications under subsection A of this section, the application shall be made therein. Otherwise, subject to § 8.01-581.015 , the application may be made in any court of competent jurisdiction.
    4. Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section. However, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include the stay.
    5. An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

    History. 1986, c. 614.

    Law Review.

    For 1995 survey of civil practice and procedure, see 29 U. Rich. L. Rev. 897 (1995).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arbitration and Award, § 5.

    CASE NOTES

    Arbitration agreement did not apply to newly formed limited liability company. —

    Although two firms that formed a limited liability company (LLC) might have chosen to employ language that would have committed them to arbitrate their disputes with the LLC, because they did not do so, there was no contractual undertaking by which firm one had agreed to arbitrate any dispute with the LLC; thus, arbitration should have been stayed. Mission Residential, LLC v. Triple Net Props., LLC, 275 Va. 157 , 654 S.E.2d 888, 2008 Va. LEXIS 9 (2008).

    Dispute subject to arbitration. —

    Where the plaintiff, a member of a partnership, alleged that the defendant, the managing partner of the partnership, converted funds belonging to the plaintiff, but the defendant asserted that, under a specific provision in the partnership agreement, he had a right to escrow those funds from the sale of the partnership’s principal asset, the dispute was “in relation to” the partnership agreement and was, therefore, subject to arbitration under the terms of the agreement. Weitz v. Hudson, 262 Va. 224 , 546 S.E.2d 732, 2001 Va. LEXIS 81 (2001).

    Trial court erred in denying defendant’s request for arbitration and a stay since although there was nothing to arbitrate with respect to plaintiff ’s $25,300 claim, because defendant admitted it, defendant was entitled to arbitration of its counterclaim for back charges and delay damages. Piland Corp. v. League Constr. Co., 238 Va. 187 , 380 S.E.2d 652, 5 Va. Law Rep. 2905, 1989 Va. LEXIS 123 (1989).

    CIRCUIT COURT OPINIONS

    Arbitration provision not applicable where contract ended with decedent’s death. —

    Motion to compel arbitration was denied where there was no evidence that the deceased’s son acted as the deceased’s agent in signing the admission document, and the healthcare center’s third-party beneficiary argument failed as the court noted that the wrongful death action arose after the decedent’s death and was brought by the executor rather than the decedent. Thus, because the contract ended with the decedent’s death, the instant claims were neither dependent upon nor intertwined with and related to the contract. Bishop v. Med. Facilities of Am. XLVII(47), Ltd. P'ship, 65 Va. Cir. 187, 2004 Va. Cir. LEXIS 227 (Roanoke June 25, 2004).

    Arbitration provision enforceable. —

    Arbitration provision was enforceable under § 8.01-581.01 , because a valid written power of attorney delivered to the residential home at the time of the execution of the agreement was proof of agency of the executor to sign on behalf of the decedent; the agreement’s failure to nominate arbitrators did not invalidate the agreement. Fink v. Colonial Home, LLC, 81 Va. Cir. 207, 2010 Va. Cir. LEXIS 124 (Portsmouth Sept. 16, 2010).

    Waiver of right to compel arbitration. —

    Subcontractor was not entitled to compel arbitration of a contractor’s claim against it and of its counterclaim against the contractor because it had waived its right to compel arbitration by engaging in substantial litigation for more than two and one half years and compelling arbitration at this stage in the proceedings would unduly prejudice the contractor. Shoosmith Bros., Inc. v. Hopewell Nursing Home, L.L.C., 78 Va. Cir. 427, 2009 Va. Cir. LEXIS 170 (Hopewell July 24, 2009).

    Defendants could not compel arbitration based on arbitration addendum to which they were not a party. —

    Two of the defendants in this wrongful death case are not parties to a purported arbitration addendum. Accordingly, the two defendants could not raise a plea in bar nor compel arbitration based upon the arbitration addendum to which neither defendant was a party. Stevens v. Medical Facilities of Am. XXXII, 98 Va. Cir. 376, 2018 Va. Cir. LEXIS 122 (Nelson County June 27, 2018).

    Dispute subject to arbitration. —

    Partnership’s motion pursuant to § 8.01-581.02 to stay arbitration of an action concerning the appropriate rent for a commercial lease was denied, because an arbitration clause in the lease contract at issue was unambiguous, and provided that the arbitrator had the authority to determine his or her own jurisdiction. Kay Jennings Family Ltd. P'ship v. DAMN, L.L.C., 71 Va. Cir. 348, 2006 Va. Cir. LEXIS 138 (Fairfax County Aug. 9, 2006).

    Non-signatories to subcontract could compel arbitration pursuant to an arbitration clause in the relevant subcontract despite not having signed the subcontract as the subcontractor was equitably estopped to bar enforcement of the subcontract’s arbitration clause. All of the counts of the subcontractor’s complaint presumed the existence of the subcontract and, thus, directly related to the subcontract, and the intentional tort claims in the complaint could be arbitrated along with the contract claims since intentional tort claims and contract claims were closely intertwined. Decisive Analytics Corp. v. Chikar, 75 Va. Cir. 337, 2008 Va. Cir. LEXIS 79 (Fairfax County July 15, 2008).

    Former employee’s lawsuit was subject to arbitration because an employment agreement contained an arbitration provision and the lawsuit arose from the employment agreement since it concerned employment compensation. Domolky v. GKM Newport Generation Capital Servs., LLC, 2010 Va. Cir. LEXIS 28 (Fairfax County Mar. 3, 2010).

    Dispute not subject to arbitration. —

    In a case in which the operators of a nursing home facility moved to dismiss/compel arbitration, the circuit court could not compel a patient to arbitrate because she had not signed the admission agreement, which contained a binding arbitration provision, the patient had not given her daughter, who did sign the agreement, any authority to enter the agreement on her behalf, and nothing in the record demonstrated that the patient ever ratified her daughter’s purported acts on her behalf. While the daughter may have perpetrated a fraud on the nursing home facility operators, it was difficult to see how her fraud could in and of itself destroy the patient’s right to a jury trial. Chung v. Medical Facilities of Am., Inc., 79 Va. Cir. 180, 2009 Va. Cir. LEXIS 51 (Fairfax County Aug. 4, 2009).

    § 8.01-581.03. Appointment of arbitrators by court; powers of arbitrators.

    If the arbitration agreement provides a method of appointment of arbitrators, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails or is unable to act and his successor has not been duly appointed, the court on application of a party shall appoint one or more arbitrators. An arbitrator so appointed has all the powers of one specifically named in the agreement.

    The powers of the arbitrators may be exercised by a majority, unless otherwise provided by the agreement or by this article.

    History. 1986, c. 614.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arbitration and Award, §§ 13, 18.

    CASE NOTES

    Arbitration provision enforceable. —

    When an arbitration agreement designated an arbitrator who was unavailable, the arbitration requirement was not unenforceable because, inter alia, the parties were presumed to know that § 8.01-581.03 directed a court to appoint an arbitrator under such circumstances, and the parties included no language in the agreement limiting this authority. Schuiling v. Harris, 286 Va. 187 , 747 S.E.2d 833, 2013 Va. LEXIS 99 (2013).

    CIRCUIT COURT OPINIONS

    Arbitration provision enforceable. —

    Arbitration provision was enforceable under § 8.01-581.01 , because a valid written power of attorney delivered to the residential home at the time of the execution of the agreement was proof of agency of the executor to sign on behalf of the decedent; the agreement’s failure to nominate arbitrators did not invalidate the agreement. Fink v. Colonial Home, LLC, 81 Va. Cir. 207, 2010 Va. Cir. LEXIS 124 (Portsmouth Sept. 16, 2010).

    § 8.01-581.04. Hearing.

    Unless otherwise provided by the agreement:

    1. The arbitrators shall appoint a time and place for the hearing and cause notification to the parties to be served personally or by registered mail not less than five days before the hearing. Appearance at the hearing waives such notice. The arbitrators may adjourn the hearing from time to time as necessary and, on request of a party for good cause, or upon their own motion may postpone the hearing to a time not later than the date fixed by the agreement for making the award unless the parties consent to a later date. The arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party duly notified to appear. The court on application may direct the arbitrators to proceed promptly with the hearing and determination of the controversy.
    2. The parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing.
    3. The hearing shall be conducted by all the arbitrators, but a majority may determine any question and render a final award. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators appointed to act as neutrals may continue with the hearing and determination of the controversy.

    History. 1986, c. 614.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arbitration and Award, §§ 19, 20, 40.

    CASE NOTES

    Failure to hold hearing held reversible error. —

    Circuit court erred in affirming the arbitrators’ award that resulted from an arbitration proceeding that did not comply with the provisions of the Virginia Uniform Arbitration Act, § 8.01-581.01 et seq., as said failure, absent an agreement by the parties to waive a hearing, was tantamount to no arbitration; because the arbitration award was vacated, the circuit court was authorized to order a hearing before the original arbitrators or their successors in accordance with § 8.01-581.03 .Bates v. McQueen, 270 Va. 95 , 613 S.E.2d 566, 2005 Va. LEXIS 60 (2005).

    Evidence. —

    Arbitrators did not refuse to hear evidence material to the controversy by refusing to issue subpoenas because their refusal did not implicate subsection (4), and a stockholder had access to documents; the statute is not a vehicle for challenging the scope of discovery in arbitration proceedings. Meuse v. Henry, 296 Va. 164 , 819 S.E.2d 220, 2018 Va. LEXIS 132 (2018).

    Attorney’s fees. —

    Upon an order vacating an arbitration award because the proceeding failed to comply with the provisions of the Virginia Uniform Arbitration Act, the question of whether one of the parties to the arbitration agreement was entitled to an award of attorney’s fees, and if so, the amount of that award, was a matter to be determined by arbitration. Bates v. McQueen, 270 Va. 95 , 613 S.E.2d 566, 2005 Va. LEXIS 60 (2005).

    CIRCUIT COURT OPINIONS

    Upon proper notice of an arbitration hearing, an application to confirm an arbitration award in favor of a group of employees, and against their employer, was granted; further, the court reaffirmed that the employees could pay a portion of the employer’s costs, and the employer failed to appear at the hearing at its own risk. Vaughn v. Sionbai, L.L.C., 2007 Va. Cir. LEXIS 45 (Fairfax County Mar. 12, 2007).

    § 8.01-581.05. Representation by attorney.

    A party has the right to be represented by an attorney at any proceeding or hearing under this article. A waiver thereof prior to the proceeding or hearing is ineffective.

    History. 1986, c. 614.

    § 8.01-581.06. Witnesses, subpoenas, depositions.

    The arbitrators may issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence, and shall have the power to administer oaths. Subpoenas so issued shall be served, and upon application to the court by a party or the arbitrators, enforced, in the manner provided by law for the service and enforcement of subpoenas in a civil action. All provisions of law compelling a person under subpoena to testify are applicable.

    On application of a party and for use as evidence, the arbitrators may permit a deposition to be taken of a witness who cannot be subpoenaed or is unable to attend the hearing, in the manner and upon the terms designated by the arbitrators.

    Fees for attendance as a witness shall be the same as for a witness in the circuit court.

    History. 1986, c. 614.

    § 8.01-581.07. Award; fees and expenses to be fixed.

    The award shall be in writing and signed by the arbitrators joining in the award. The arbitrators shall deliver a copy to each party personally or by registered mail, or as provided in the agreement.

    An award shall be made within the time fixed therefor by the agreement or, if not so fixed, within such time as the court orders on application of a party. The parties may extend the time in writing either before or after the expiration thereof. A party waives the objection that an award was not made within the time required unless he notifies the arbitrators of his objection prior to the delivery of the award to him. Unless otherwise provided in the agreement to arbitrate, the arbitrators’ expenses and fees incurred in the conduct of the arbitration, and all other expenses, not including counsel fees, shall be paid as provided in the award.

    History. 1986, c. 614.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arbitration and Award, §§ 19, 21, 23.

    § 8.01-581.08. Change of award by arbitrators.

    On application of a party or, if an application to the court is pending under §§ 8.01-581.09 , 8.01-581.010 or § 8.01-581.011 , on submission to the arbitrators by the court under such conditions as the court may order, the arbitrators may modify or correct the award upon the grounds stated in subdivisions 1 and 3 of § 8.01-581.011 , or for the purpose of clarifying the award. The application shall be made within twenty days after delivery of the award to the applicant. Written notice thereof shall be given forthwith to the opposing party, stating that he must serve his objections thereto, if any, within ten days from the notice. The award as modified or corrected is subject to the provisions of §§ 8.01-581.09 , 8.01-581.010 or § 8.01-581.011.

    History. 1986, c. 614.

    CASE NOTES

    Time limitations. —

    This statute provides a limited time within which the parties may ask an arbitrator to reconsider or modify an award; after that time the arbitrator has no further authority over an award. Waterfront Marine Constr. v. North End 49ers Sandbridge Bulkhead Groups A, B & C, 251 Va. 417 , 468 S.E.2d 894, 1996 Va. LEXIS 52 (1996).

    Under this section, husband’s failure to apply to have an award by arbitrator changed within 20 days of the date the award was delivered to the husband meant that he could not challenge that award on appeal, as the arbitrator had no further authority over the award to change it after the 20 days had elapsed; thus, appellate court was not entitled to consider changing the award on appeal. Marks v. Marks, 36 Va. App. 216, 548 S.E.2d 919, 2001 Va. App. LEXIS 424 (2001).

    § 8.01-581.09. Confirmation of an award.

    Upon application of a party any time after an award is made, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in §§ 8.01-581.010 and 8.01-581.011 .

    History. 1986, c. 614; 1998, c. 303.

    CASE NOTES

    Awards are to be liberally construed to the end that they may be upheld if possible. —

    An award, being the judgment of a judge of the parties’ own choosing, ought to be favorably viewed by the courts; and effect ought to be given to it by them, whenever it can be done consistently with the rules of law. Virginia Beach Bd. of Realtors, Inc. v. Goodman Segar Hogan, Inc., 224 Va. 659 , 299 S.E.2d 360, 1983 Va. LEXIS 175 (1983) (decided under former § 8.01-579).

    CIRCUIT COURT OPINIONS

    Upon proper notice of an arbitration hearing, an application to confirm an arbitration award in favor of a group of employees, and against their employer, was granted; further, the court reaffirmed that the employees could pay a portion of the employer’s costs, and the employer failed to appear at the hearing at its own risk. Vaughn v. Sionbai, L.L.C., 2007 Va. Cir. LEXIS 45 (Fairfax County Mar. 12, 2007).

    Authority to confirm arbitration award. —

    Trial court had authority under § 8.01-581.09 to confirm an arbitration award entered in favor of plaintiff because it was well over ninety days from the time of delivery of the award to defendant, and defendant did not urge any grounds for vacating, modifying, or correcting the award. FIA Card Servs. v. Worku, 75 Va. Cir. 8, 2008 Va. Cir. LEXIS 8 (Fairfax County Jan. 24, 2008).

    § 8.01-581.010. Vacating an award.

    Upon application of a party, the court shall vacate an award where:

    1. The award was procured by corruption, fraud or other undue means;
    2. There was evident partiality by an arbitrator appointed as a neutral, corruption in any of the arbitrators, or misconduct prejudicing the rights of any party;
    3. The arbitrators exceeded their powers;
    4. The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of § 8.01-581.04 , in such a way as to substantially prejudice the rights of a party; or
    5. There was no arbitration agreement and the issue was not adversely determined in proceedings under § 8.01-581.02 and the party did not participate in the arbitration hearing without raising the objection.The fact that the relief was such that it could not or would not be granted by a court of law or equity is not grounds for vacating or refusing to confirm the award.An application under this section shall be made within ninety days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within ninety days after such grounds are known or reasonably should have been known. An application shall be made by filing a petition with the appropriate court within the prescribed time limits of this section, or by raising reasons supporting vacation in response to another party’s petition to confirm the award, provided that such response is filed within the prescribed time limits of this section.In vacating the award on grounds other than that stated in subdivision 5, the court may order a rehearing before new arbitrators chosen as provided in the agreement, or in the absence thereof, by the court in accordance with § 8.01-581.03 . If the award is vacated on grounds set forth in subdivisions 3 and 4 the court may order a rehearing before the arbitrators who made the award or their successors appointed in accordance with § 8.01-581.03 . The time within which the agreement requires the award to be made is applicable to the rehearing and commences from the date of the order.If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award.

    History. 1986, c. 614; 1998, c. 303.

    Law Review.

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For article reviewing case law and changes in legislation affecting Virginia construction law, see 40 U. Rich. L. Rev. 143 (2005).

    For note, “Judicial Review of Arbitration Awards Under State Law,” 96 Va. L. Rev. 887 (2010).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arbitration and Award, §§ 4, 18, 36, 43, 54.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Constitutionality. —

    A contractual agreement by the parties to abide by both the rules of arbitration and the arbitrators’ decision does not render § 8.01-581.010 unconstitutional. Lackman v. Long & Foster Real Estate, Inc., 266 Va. 20 , 580 S.E.2d 818, 2003 Va. LEXIS 65 (2003).

    Section 8.01-581.010 provides the exclusive means for setting aside an arbitration award. Lackman v. Long & Foster Real Estate, Inc., 266 Va. 20 , 580 S.E.2d 818, 2003 Va. LEXIS 65 (2003).

    Order compelling arbitration not a final order. —

    Order that compelled arbitration of an employee’s claim against her employer pursuant to the Virginia Uniform Arbitration Act, § 8.01-581.01 et seq., was not a final judgment order for purposes of appeal as contemplated by subdivision A 3 of § 8.01-670 ; pursuant to § 8.01-581.010 , the trial court retained jurisdiction to vacate an arbitration award, and, pursuant to § 8.01-581.011 , the trial court retained jurisdiction to modify or correct an arbitration award. Seguin v. Northrop Grumman Sys. Corp., 277 Va. 244 , 672 S.E.2d 877, 2009 Va. LEXIS 30 (2009).

    Federal labor action. —

    In action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to vacate an arbitration award, the most closely analogous statute of limitation under Virginia law as former § 8.01-579 (see now subdivision 5 of this section), rather than § 8.01-246 or § 8.01-248 . Local Union 8181, UMW v. Westmoreland Coal Co., 649 F. Supp. 603, 1986 U.S. Dist. LEXIS 16893 (W.D. Va. 1986).

    Failure to hold hearing held reversible error. —

    Circuit court erred in affirming the arbitrators’ award that resulted from an arbitration proceeding that did not comply with the provisions of the Virginia Uniform Arbitration Act, § 8.01-581.01 et seq., as said failure, absent an agreement by the parties to waive a hearing, was tantamount to no arbitration; because the arbitration award was vacated, the circuit court was authorized to order a hearing before the original arbitrators or their successors in accordance with § 8.01-581.03 .Bates v. McQueen, 270 Va. 95 , 613 S.E.2d 566, 2005 Va. LEXIS 60 (2005).

    Hearsay evidence. —

    Arbitrators do not exceed their powers by admitting or considering hearsay evidence. Farkas v. Receivable Fin. Corp., 806 F. Supp. 84, 1992 U.S. Dist. LEXIS 20989 (E.D. Va. 1992).

    Arbitrators did not exceed their powers by deciding what the contract meant. To the contrary, that was one of the issues which the parties submitted for decision in the arbitration. The arbitrators did not exceed their powers by misinterpreting the contract or by committing an error of law. As a matter of law, neither reason constituted a ground on which an award could be vacated. Farkas v. Receivable Fin. Corp., 806 F. Supp. 84, 1992 U.S. Dist. LEXIS 20989 (E.D. Va. 1992).

    Trial court properly denied defendant’s motion to vacate an arbitration award in favor of plaintiff, as the arbitrators did not exceed their powers where the issues that they resolved were within the scope of the powers conferred upon the arbitrators by parties’ subcontract; as the parties’ contractual dispute was within the scope of this broad language, neither the trial court nor the supreme court could review the merits of the arbitrators’ decision. Signal Corp. v. Keane Fed. Sys., 265 Va. 38 , 574 S.E.2d 253, 2003 Va. LEXIS 14 (2003).

    Trial court properly refused to vacate an arbitration award in a contract dispute because the parties, by contract, empowered the arbitrators to award liquidated damages and to resolve all disputes; the subcontractor’s claim that the liquidated damages award violated public policy did not state a ground for vacating the award under § 8.01-581.010 . BBF, Inc. v. Alstom Power, Inc., 274 Va. 326 , 645 S.E.2d 467, 2007 Va. LEXIS 81 (2007).

    No error in confirming arbitration award. —

    Circuit court did not err by refusing to vacate the portions of an arbitration award that upheld the forfeiture and appointment provisions of an operating agreement because the purpose of Va. Sup. Ct. R. pt. 6, § II, R. 1.8(a) was satisfied; thus, an attorney’s failure to obtain the signature of a holding company founder’s did not constitute a violation of any public policy, much less render the agreement void ab initio. Meuse v. Henry, 296 Va. 164 , 819 S.E.2d 220, 2018 Va. LEXIS 132 (2018).

    Circuit court did not err by refusing to vacate the portions of an arbitration award that upheld the forfeiture and appointment provisions of an operating agreement because those provisions were fair and reasonable to a limited liability company; consequently, the stockholder’s challenges failed to establish that the forfeiture and appointment provisions of the agreement were void ab initio. Meuse v. Henry, 296 Va. 164 , 819 S.E.2d 220, 2018 Va. LEXIS 132 (2018).

    Arbitrators’ refusal to issue subpoenas did not establish that the award of attorney’s fees and costs had to be vacated because the award was based on the arbitrators’ finding that a stockholder commenced her action against her sister without reasonable cause; additionally, the arbitrators found that the stockholder’s claims were not well grounded in fact and were brought for the improper purpose of vindictiveness and harassment. Meuse v. Henry, 296 Va. 164 , 819 S.E.2d 220, 2018 Va. LEXIS 132 (2018).

    Arbitrators did not refuse to hear evidence material to the controversy by refusing to issue subpoenas because their refusal did not implicate subdivision 4, and a stockholder had access to documents; the statute is not a vehicle for challenging the scope of discovery in arbitration proceedings. Meuse v. Henry, 296 Va. 164 , 819 S.E.2d 220, 2018 Va. LEXIS 132 (2018).

    Arbitrators did not exceed their powers by declining to issue subpoenas deces tecum because the ruling denying the request to issue subpoenas demonstrated that the arbitrators recognized their statutory authority to issue subpoenas and that their refusal to issue them was an exercise of their authority. Meuse v. Henry, 296 Va. 164 , 819 S.E.2d 220, 2018 Va. LEXIS 132 (2018).

    Circuit court did not err by refusing to vacate the portions of an arbitration award that upheld the forfeiture and appointment provisions of an operating agreement because a stockholder did not establish the founder of a holding company was misled; thus, the stockholder failed to establish any void-ab-initio basis for refusing judicial enforcement of the arbitration award. Meuse v. Henry, 296 Va. 164 , 819 S.E.2d 220, 2018 Va. LEXIS 132 (2018).

    Time limitations. —

    Under this section, the husband’s failure to request arbitration award to be vacated by arbitrator within 90 days of the date the award was delivered to the husband meant that he could not challenge that award on appeal, as no timely request had been made to vacate the award while it was in the trial court; thus, appellate court was also not entitled to vacate the award on appeal. Marks v. Marks, 36 Va. App. 216, 548 S.E.2d 919, 2001 Va. App. LEXIS 424 (2001).

    Where a debtor objected to a claim filed by a creditor, relating to a nine-year-old judgment confirming an arbitration award, which was allegedly obtained through fraud, creditor was entitled to summary judgment; the objection was time-barred by either D.C. Code § 16-4311 or Va. Code Ann. § 8.01-581.010 , which required that any application to vacate an arbitration award procured by corruption, fraud, or other undue means had to be made within 90 days after the entry of the award or 90 days after the fraud became known or should have been known, because the debtor should have known of the alleged fraud at the time of the arbitration proceeding. Ben-Ami v. Katz, 348 Bankr. 320, 2006 Bankr. LEXIS 1960 (Bankr. E.D. Va. 2006).

    Attorney fees. —

    Upon an order vacating an arbitration award because the proceeding failed to comply with the provisions of the Virginia Uniform Arbitration Act, the question of whether one of the parties to the arbitration agreement was entitled to an award of attorney’s fees, and if so, the amount of that award, was a matter to be determined by arbitration. Bates v. McQueen, 270 Va. 95 , 613 S.E.2d 566, 2005 Va. LEXIS 60 (2005).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    B.Decisions Under Former § 8.01-580.
    1.In General.

    Nothing is considered to be apparent on the face of the award but what forms a part of it; no calculations, nor any of the grounds of it, unless incorporated with it or annexed to it at the time of delivery, are to be regarded or received as reasons or grounds to avoid it. Wyatt Realty Enters., Ltd. v. Bob Jones Realty Co., 222 Va. 365 , 282 S.E.2d 8, 1981 Va. LEXIS 317 (1981).

    Awards are to be liberally construed to the end that they may be upheld if possible. An award, being the judgment of a judge of the parties’ own choosing, ought to be favorably viewed by the courts; and effect ought to be given to it by them, whenever it can be done consistently with the rules of law. Virginia Beach Bd. of Realtors, Inc. v. Goodman Segar Hogan, Inc., 224 Va. 659 , 299 S.E.2d 360, 1983 Va. LEXIS 175 (1983).

    This section is not applicable to the state employee grievance procedure. Detweiler v. Virginia Dep't of Rehabilitative Servs., 705 F.2d 557, 1983 U.S. App. LEXIS 28817 (4th Cir. 1983).

    2.Grounds.

    A “palpable” error is one that is obvious and easily perceptible. United Paperworkers Int'l Union v. Chase Bag Co., 222 Va. 324 , 281 S.E.2d 807, 1981 Va. LEXIS 308 (1981).

    Palpable errors are those of such a nature, as to induce a belief that they must have proceeded from some improper bias in the minds of the arbitrators, or from some gross misbehavior or inattention. United Paperworkers Int'l Union v. Chase Bag Co., 222 Va. 324 , 281 S.E.2d 807, 1981 Va. LEXIS 308 (1981).

    The rule as to palpable mistakes does not comprehend errors of judgment in its fair exercise upon the matter. United Paperworkers Int'l Union v. Chase Bag Co., 222 Va. 324 , 281 S.E.2d 807, 1981 Va. LEXIS 308 (1981).

    Procedural errors. —

    A court may modify or set aside an arbitrator’s award for errors in procedural, as well as substantive, matters. United Paperworkers Int'l Union v. Chase Bag Co., 222 Va. 324 , 281 S.E.2d 807, 1981 Va. LEXIS 308 (1981).

    Lack of signature of each arbitrator. —

    When an otherwise valid award contains the signature of the chairman of the arbitration panel, it should not be invalidated merely because it lacks the signature of each arbitrator. To do so would elevate form over substance. The fact that the arbitrators other than the chairman failed to sign is a procedural omission which should not abrogate the substance of the arbitration award. Their signatures serve no other function than to memorialize concurrence in the award. Virginia Beach Bd. of Realtors, Inc. v. Goodman Segar Hogan, Inc., 224 Va. 659 , 299 S.E.2d 360, 1983 Va. LEXIS 175 (1983).

    C.Decisions Prior to Enactment of Title 8.01.
    1.In General.

    Reason must appear on face of award. —

    It is equally the rule of equity as of law that the reasons for setting aside an award must appear on its face, or there must be misbehavior in the arbitrators, or some palpable mistake. Shermer v. Beale, 1 Va. (1 Wash.) 11, 1 Wash. 11, 1791 Va. LEXIS 14 (1791); Head v. Muir, 24 Va. (3 Rand.) 122, 1825 Va. LEXIS 8 (1825); Wheatley v. Martin's Adm'r, 33 Va. (6 Leigh) 62, 1835 Va. LEXIS 15 (1835); Moore v. Luckess Next of Kin, 64 Va. (23 Gratt.) 160, 1873 Va. LEXIS 28 (1873); McKennie v. Charlottesville & A. Ry., 110 Va. 70 , 65 S.E. 503 , 1909 Va. LEXIS 117 (1909).

    Nothing is considered to be apparent on the face of the award but what forms a part of it; no calculations, nor any of the grounds of it, unless incorporated with it or annexed to it at the time of delivery, are to be regarded or received as reasons or grounds to avoid it. Taylor's Adm'r v. Nicolson, 11 Va. (1 Hen. & M.) 67, 1806 Va. LEXIS 51 (1806); Wheatley v. Martin's Adm'r, 33 Va. (6 Leigh) 62, 1835 Va. LEXIS 15 (1835).

    Awards which do not conform to the submission are void. Taylor's Adm'r v. Nicolson, 11 Va. (1 Hen. & M.) 67, 1806 Va. LEXIS 51 (1806); Martin v. Martin, 39 Va. (12 Leigh) 495, 1842 Va. LEXIS 2 (1842); Wood v. Shepherd (1857); Moore v. Luckess Next of Kin, 64 Va. (23 Gratt.) 160, 1873 Va. LEXIS 28 (1873); Pollock's Adm'r v. Sutherlin, 66 Va. (25 Gratt.) 78, 1874 Va. LEXIS 40 (1874); Lynchburg Female Orphan Asylum v. Ford, 66 Va. (25 Gratt.) 566 (1874); Shipman v. Fletcher, 82 Va. 601 , 1886 Va. LEXIS 78 (1886).

    Unless afterwards confirmed by parties. —

    An award which does not conform to the submission is of no effect unless the parties confirmed it afterwards. Pollock's Adm'r v. Sutherlin, 66 Va. (25 Gratt.) 78, 1874 Va. LEXIS 40 (1874).

    But submission will be construed favorably to award. —

    In determining whether the award is within the scope of the submission, both the submission and award will be construed favorably to the award. Pollock's Adm'r v. Sutherlin, 66 Va. (25 Gratt.) 78, 1874 Va. LEXIS 40 (1874).

    If, on any fair presumption, the award may be brought within the submission, it should be sustained. Ross v. Overton, 7 Va. (3 Call) 309, 1802 Va. LEXIS 29 (1802); Morris v. Ross, 12 Va. (2 Hen. & M.) 408, 1808 Va. LEXIS 51 (1808); Richards v. Brockenbrough's Adm'r, 22 Va. (1 Rand.) 449, 1823 Va. LEXIS 28 (1823); Head v. Muir, 24 Va. (3 Rand.) 122, 1825 Va. LEXIS 8 (1825); Armstrong v. Armstrong, 28 Va. (1 Leigh) 491, 1829 Va. LEXIS 50 (1829); Bassett's Adm'r v. Cunningham's Adm'r, 50 Va. (9 Gratt.) 684, 1853 Va. LEXIS 20 (1853); Pollock's Adm'r v. Sutherlin, 66 Va. (25 Gratt.) 78, 1874 Va. LEXIS 40 (1874); Coons v. Coons, 95 Va. 434 , 28 S.E. 885 , 1897 Va. LEXIS 52 (1897).

    And as much of award as is within submission will be enforced. —

    Where an award settles matters which are, and other matters which are not, within the submission, the court may reject the excess, and render judgment on so much of the award as is within the submission if it can be separated. Taylor's Adm'r v. Nicolson, 11 Va. (1 Hen. & M.) 67, 1806 Va. LEXIS 51 (1806); Horrel v. M'Alexander, 24 Va. (3 Rand.) 94, 1824 Va. LEXIS 48 (1824); Martin v. Martin, 39 Va. (12 Leigh) 495, 1842 Va. LEXIS 2 (1842); Morris v. Morris, 50 Va. (9 Gratt.) 637, 1853 Va. LEXIS 5 (1853); Moore v. Luckess Next of Kin, 64 Va. (23 Gratt.) 160, 1873 Va. LEXIS 28 (1873); Pollock's Adm'r v. Sutherlin, 66 Va. (25 Gratt.) 78, 1874 Va. LEXIS 40 (1874); Lynchburg Female Orphan Asylum v. Ford, 66 Va. (25 Gratt.) 566 (1874); McKennie v. Charlottesville & A. Ry., 110 Va. 70 , 65 S.E. 503 , 1909 Va. LEXIS 117 (1909).

    Award is not vitiated by signature of stranger. —

    If a third person who signed an award were a mere stranger, this would not vitiate the award. Rison v. Berry, 25 Va. (4 Rand.) 275, 1826 Va. LEXIS 36 (1826).

    Award uncertain on its face is void. —

    An award which is uncertain on its face, and does not refer to something else by which it may be made certain, is void. Thus an award that one of the parties should refund the sum which the other had paid for certain corn, without stating the amount, or referring to anything to make the amount certain, was held void. Cauthorn v. Courtney, 47 Va. (6 Gratt.) 381, 1849 Va. LEXIS 59 (1849).

    2.Grounds.
    a.Fraud or Mistake.

    Award procured by fraud will be set aside. —

    An award procured through the fraud of one of the parties to the submission will be set aside for that cause by a court of equity in a proper case. Bierly v. Williams, 32 Va. (5 Leigh) 700, 1834 Va. LEXIS 70 (1834); Kidwell v. B & O R.R., 52 Va. (11 Gratt.) 676, 1854 Va. LEXIS 51 (1854); Condon v. South Side R.R., 55 Va. (14 Gratt.) 302, 1858 Va. LEXIS 48 (1858); B & O R.R. v. Polly, 55 Va. (14 Gratt.) 447, 1858 Va. LEXIS 38 (1858); B & O R.R. v. Laffertys, 55 Va. (14 Gratt.) 478, 1858 Va. LEXIS 37 (1858); Mills v. Norfolk & W.R.R., 90 Va. 523 , 19 S.E. 171 , 1894 Va. LEXIS 17 (1894).

    Clerical errors may be corrected. Byars v. Thompson, 39 Va. (12 Leigh) 550, 1841 Va. LEXIS 57 (1841); Forrer v. Coffman, 64 Va. (23 Gratt.) 871 (1873).

    Mistake must appear upon face of award. —

    To authorize the setting aside of an award for a mistake of the arbitrators, either as to law or fact, the mistake must appear on the face of the award. Pleasants v. Ross, 1 Va. (1 Wash.) 156 (1793) (see Scott v. Trents, 14 Va. (4 Hen. & M.) 356 (1809)).

    Unless arbitrators certify principles on which they decided. —

    If the arbitrators will certify the principles on which they decided, the court will set aside the award if they appear to have acted under a mistake. Affidavits may be introduced, but they must go to prove partiality or misbehavior in the arbitrators. Pleasants v. Ross, 1 Va. (1 Wash.) 156 (1793) (see Scott v. Trents, 14 Va. (4 Hen. & M.) 356 (1809)).

    The award ought not to be set aside unless the mistake is very palpable. Morris v. Ross, 12 Va. (2 Hen. & M.) 408, 1808 Va. LEXIS 51 (1808).

    The mere fact that one of the arbitrators, after the award, may think that he made a mistake is insufficient to set it aside. Pollard v. Lumpkin, 47 Va. (6 Gratt.) 398, 1849 Va. LEXIS 62 (1849).

    Award may be set aside for material mistake of law. —

    Where arbitrators mean to decide according to law, and they mistake the law in a palpable material point, the award will be set aside. But their decision, upon a doubtful point of law, or in a case where the question of law is designedly left to their judgment, will generally be held conclusive. It must appear that they grossly mistook the law; and the court will not interfere merely because it would have given a different decision in the particular case. Ross v. Overton, 7 Va. (3 Call) 309, 1802 Va. LEXIS 29 (1802); Smith v. Smith, 25 Va. (4 Rand.) 95, 1826 Va. LEXIS 10 (1826); Moore v. Luckess Next of Kin, 64 Va. (23 Gratt.) 160, 1873 Va. LEXIS 28 (1873); City of Portsmouth v. Norfolk County, 72 Va. (31 Gratt.) 727, 1879 Va. LEXIS 33 (1879).

    But when parties submit a question of law alone, the award is binding, though contrary to law. Smith v. Smith, 25 Va. (4 Rand.) 95, 1826 Va. LEXIS 10 (1826).

    If arbitrators intended to decide according to law, error will be corrected. —

    Where it appeared in the award of the arbitrators that they had taken the institution of the action, instead of the filing of the plea of setoff, as the date from which the statute of limitations would cease to run against the setoff, the court corrected the error, it appearing that the arbitrators had intended to decide according to law. Moore v. Luckess Next of Kin, 64 Va. (23 Gratt.) 160, 1873 Va. LEXIS 28 (1873).

    But arbitrators may disregard the law entirely, and decide upon principles of equity and good conscience exclusively. Moore v. Luckess Next of Kin, 64 Va. (23 Gratt.) 160, 1873 Va. LEXIS 28 (1873).

    Presumption is that award is based on correct proposition of law. —

    If an arbitrator, intending to decide the questions submitted to him according to law, states in his award two propositions of law, one of which is erroneous, and the other correct upon the facts as he considers them to be, a court in passing upon the validity of the award will presume that it is based upon the latter proposition, and cannot inquire whether the arbitrator took a correct view of the facts. Willoughby v. Thomas, 65 Va. (24 Gratt.) 521, 1874 Va. LEXIS 31 (1874).

    b.Misconduct of Arbitrators.

    Award is vitiated by misbehavior resulting in injustice. —

    An award of arbitrators will be set aside on the ground of circumstances in their conduct amounting to misbehavior, though not to corruption, and resulting in injustice to one of the parties. Head v. Muir, 24 Va. (3 Rand.) 122, 1825 Va. LEXIS 8 (1825); Graham's Adm'rs v. Pence, 27 Va. (6 Rand.) 529, 1828 Va. LEXIS 32 (1828); May v. Yancey, 31 Va. (4 Leigh) 362, 1833 Va. LEXIS 29 (1833); Lee v. Patillo, 31 Va. (4 Leigh) 436, 1833 Va. LEXIS 39 (1833); City of Portsmouth v. Norfolk County, 72 Va. (31 Gratt.) 727, 1879 Va. LEXIS 33 (1879); Shipman v. Fletcher, 82 Va. 601 , 1886 Va. LEXIS 78 (1886).

    Such as hearing cause in absence of parties and without notice. —

    Hearing and deciding the cause in the absence of the parties and without notice to them of the time and place of the hearing is such misconduct on the part of the arbitrators as will vitiate their award. McCormick v. Blackford & Son, 45 Va. (4 Gratt.) 133, 1847 Va. LEXIS 34 (1847); Jenkins v. Liston, 54 Va. (13 Gratt.) 535, 1856 Va. LEXIS 32 (1856); Tate v. Vance, 68 Va. (27 Gratt.) 571, 1876 Va. LEXIS 49 (1876); Shipman v. Fletcher, 82 Va. 601 , 1886 Va. LEXIS 78 (1886). But see Miller v. Kennedy, 24 Va. (3 Rand.) 2, 1825 Va. LEXIS 4 (1825).

    But partition of land by arbitrators in the absence of the parties is binding. Miller v. Miller, 99 Va. 125 , 37 S.E. 792 , 1901 Va. LEXIS 18 (1901).

    Parties should have notice of appointment of umpire. —

    Where the submission empowers the arbitrators named therein to appoint an umpire or third arbitrator to decide any matter that they might not be able to agree upon, and the arbitrators fail to notify a party of the appointment of a third arbitrator, and of their readiness to proceed with the case, thus affording him the opportunity to introduce evidence in support of his contentions, the award should be vacated and annulled. Coons v. Coons, 95 Va. 434 , 28 S.E. 885 , 1897 Va. LEXIS 52 (1897).

    Joint award of arbitrators and umpire is good. —

    Where a submission was made to two persons and “such umpire as they shall choose,” and the arbitrators and umpire acted together and made a joint award, the award was good. Rison v. Berry, 25 Va. (4 Rand.) 275, 1826 Va. LEXIS 36 (1826).

    The court can look into the testimony which was before the arbitrators, for the purpose of determining from it and from other circumstances whether the errors were so gross or palpable as to show fraud, corruption or gross misconduct in the arbitrators, and where these are shown the court will set aside the award. Moore v. Luckess Next of Kin, 64 Va. (23 Gratt.) 160, 1873 Va. LEXIS 28 (1873).

    An award made on ex parte evidence is invalid. Thus where the defendant refused to submit his case or his evidence, because the arbitrators had refused to act and had only been induced to act upon the request of the plaintiff, and the arbitrators rendered an award in the plaintiff’s favor upon his ex parte evidence, this was held sufficient to invalidate the award. Graham's Adm'rs v. Pence, 27 Va. (6 Rand.) 529, 1828 Va. LEXIS 32 (1828).

    Receiving evidence of one party without the knowledge of the other is erroneous, and will invalidate the award. Jenkins v. Liston, 54 Va. (13 Gratt.) 535, 1856 Va. LEXIS 32 (1856); Tate v. Vance, 68 Va. (27 Gratt.) 571, 1876 Va. LEXIS 49 (1876).

    Arbitrators should not admit improper evidence, and if they do their award is thereby invalidated, and this is true even though they say that their opinions were formed before such evidence was received. M'Alister v. M'Alister, 1 Va. (1 Wash.) 193, 1 Wash. 193, 1793 Va. LEXIS 28 (1793); Jenkins v. Liston, 54 Va. (13 Gratt.) 535, 1856 Va. LEXIS 32 (1856).

    But it may be presumed that improper testimony was disregarded. —

    Where arbitrators are selected in part because of their high legal attainments, it will be presumed by the court that all improper testimony was discarded from their consideration in making their decisions. Bassett's Adm'r v. Cunningham's Adm'r, 50 Va. (9 Gratt.) 684, 1853 Va. LEXIS 20 (1853).

    Refusal to hear proper evidence vitiates award. —

    Where arbitrators unreasonably refuse to hear competent witnesses offered by either party this will vitiate their award. Ligon v. Ford, 19 Va. (5 Munf) 10, 1816 Va. LEXIS 2 (1816).

    Excessive damages alone are ground for relief in equity, as proving the arbitrators to have acted in an unjustifiable manner. Beverley v. Rennolds, Wythe 121 (1791).

    b.Misconduct of Arbitrators.

    Award is vitiated by misbehavior resulting in injustice. —

    An award of arbitrators will be set aside on the ground of circumstances in their conduct amounting to misbehavior, though not to corruption, and resulting in injustice to one of the parties. Head v. Muir, 24 Va. (3 Rand.) 122, 1825 Va. LEXIS 8 (1825); Graham's Adm'rs v. Pence, 27 Va. (6 Rand.) 529, 1828 Va. LEXIS 32 (1828); May v. Yancey, 31 Va. (4 Leigh) 362, 1833 Va. LEXIS 29 (1833); Lee v. Patillo, 31 Va. (4 Leigh) 436, 1833 Va. LEXIS 39 (1833); City of Portsmouth v. Norfolk County, 72 Va. (31 Gratt.) 727, 1879 Va. LEXIS 33 (1879); Shipman v. Fletcher, 82 Va. 601 , 1886 Va. LEXIS 78 (1886).

    Such as hearing cause in absence of parties and without notice. —

    Hearing and deciding the cause in the absence of the parties and without notice to them of the time and place of the hearing is such misconduct on the part of the arbitrators as will vitiate their award. McCormick v. Blackford & Son, 45 Va. (4 Gratt.) 133, 1847 Va. LEXIS 34 (1847); Jenkins v. Liston, 54 Va. (13 Gratt.) 535, 1856 Va. LEXIS 32 (1856); Tate v. Vance, 68 Va. (27 Gratt.) 571, 1876 Va. LEXIS 49 (1876); Shipman v. Fletcher, 82 Va. 601 , 1886 Va. LEXIS 78 (1886). But see Miller v. Kennedy, 24 Va. (3 Rand.) 2, 1825 Va. LEXIS 4 (1825).

    But partition of land by arbitrators in the absence of the parties is binding. Miller v. Miller, 99 Va. 125 , 37 S.E. 792 , 1901 Va. LEXIS 18 (1901).

    Parties should have notice of appointment of umpire. —

    Where the submission empowers the arbitrators named therein to appoint an umpire or third arbitrator to decide any matter that they might not be able to agree upon, and the arbitrators fail to notify a party of the appointment of a third arbitrator, and of their readiness to proceed with the case, thus affording him the opportunity to introduce evidence in support of his contentions, the award should be vacated and annulled. Coons v. Coons, 95 Va. 434 , 28 S.E. 885 , 1897 Va. LEXIS 52 (1897).

    Joint award of arbitrators and umpire is good. —

    Where a submission was made to two persons and “such umpire as they shall choose,” and the arbitrators and umpire acted together and made a joint award, the award was good. Rison v. Berry, 25 Va. (4 Rand.) 275, 1826 Va. LEXIS 36 (1826).

    The court can look into the testimony which was before the arbitrators, for the purpose of determining from it and from other circumstances whether the errors were so gross or palpable as to show fraud, corruption or gross misconduct in the arbitrators, and where these are shown the court will set aside the award. Moore v. Luckess Next of Kin, 64 Va. (23 Gratt.) 160, 1873 Va. LEXIS 28 (1873).

    An award made on ex parte evidence is invalid. Thus where the defendant refused to submit his case or his evidence, because the arbitrators had refused to act and had only been induced to act upon the request of the plaintiff, and the arbitrators rendered an award in the plaintiff’s favor upon his ex parte evidence, this was held sufficient to invalidate the award. Graham's Adm'rs v. Pence, 27 Va. (6 Rand.) 529, 1828 Va. LEXIS 32 (1828).

    Receiving evidence of one party without the knowledge of the other is erroneous, and will invalidate the award. Jenkins v. Liston, 54 Va. (13 Gratt.) 535, 1856 Va. LEXIS 32 (1856); Tate v. Vance, 68 Va. (27 Gratt.) 571, 1876 Va. LEXIS 49 (1876).

    Arbitrators should not admit improper evidence, and if they do their award is thereby invalidated, and this is true even though they say that their opinions were formed before such evidence was received. M'Alister v. M'Alister, 1 Va. (1 Wash.) 193, 1 Wash. 193, 1793 Va. LEXIS 28 (1793); Jenkins v. Liston, 54 Va. (13 Gratt.) 535, 1856 Va. LEXIS 32 (1856).

    But it may be presumed that improper testimony was disregarded. —

    Where arbitrators are selected in part because of their high legal attainments, it will be presumed by the court that all improper testimony was discarded from their consideration in making their decisions. Bassett's Adm'r v. Cunningham's Adm'r, 50 Va. (9 Gratt.) 684, 1853 Va. LEXIS 20 (1853).

    Refusal to hear proper evidence vitiates award. —

    Where arbitrators unreasonably refuse to hear competent witnesses offered by either party this will vitiate their award. Ligon v. Ford, 19 Va. (5 Munf) 10, 1816 Va. LEXIS 2 (1816).

    Excessive damages alone are ground for relief in equity, as proving the arbitrators to have acted in an unjustifiable manner. Beverley v. Rennolds, Wythe 121 (1791).

    3.Jurisdiction and Procedure.

    The power of the court of equity to revise awards is concurrent with that of the courts of common law; but if the court of law first gets possession of the subject, its decision is binding on the court of equity, unless new circumstances are shown to authorize the interposition of the latter. Flournoy's Ex'rs v. Halcomb, 16 Va. (2 Munf) 34, 1811 Va. LEXIS 11 (1811).

    Rules governing new trials for after-discovered evidence apply. —

    The rules governing courts of equity in awarding new trials in actions at law, on the ground of after-discovered evidence, apply equally to motions to set aside an award on that ground. Adams v. Hubbard, 66 Va. (25 Gratt.) 129, 1874 Va. LEXIS 44 (1874).

    Relief against bond given under invalid award is in equity. —

    An award condemning a party to pay damages for refusing to ratify an illegal and fraudulent contract is not binding, and relief against a bond given in conformity with it is properly sought in equity. Beverley v. Rennolds, Wythe 121 (1791).

    Equity court may decide whole controversy. —

    Where all the parties are before the court upon a bill to set aside an award upon grounds which unquestionably give a court of equity jurisdiction, the jurisdiction having once attached for the purpose of injunction, the court may decide the whole controversy, and render a final decree, though all the issues are legal in their nature and capable of being tried by a court of law, and the legal remedies therefor are adequate. Coons v. Coons, 95 Va. 434 , 28 S.E. 885 , 1897 Va. LEXIS 52 (1897).

    It will not set aside award for objections available at law. —

    A court of equity will not set aside an award for objections, which, if available at all, were available at law, but which the party did not avail himself of at law, surprise having been alleged but not proved, and no fraud having been alleged or proved. Head v. Muir, 24 Va. (3 Rand.) 122, 1825 Va. LEXIS 8 (1825); Wheatley v. Martin's Adm'r, 33 Va. (6 Leigh) 62, 1835 Va. LEXIS 15 (1835).

    Lapse of time is defense to bill to impeach award. —

    Unless the fund is such a fund as a court of equity will pursue regardless of the statute of limitations, lapse of time is a good defense to a bill brought to impeach an award. Lesslie v. Brown (1855).

    All evidence before arbitrators must be before court. —

    Where all evidence before the arbitrators is not before the court on the motion to set aside the award, the motion must fail. Adams v. Hubbard, 66 Va. (25 Gratt.) 129, 1874 Va. LEXIS 44 (1874).

    Extrinsic evidence admissible to show appointment of umpire. —

    Although the award does not state that a third person, who signed it, has been chosen by the arbitrators as umpire, that fact may be proved by other evidence. Rison v. Berry, 25 Va. (4 Rand.) 275, 1826 Va. LEXIS 36 (1826).

    Time of making award. —

    An award made by an umpire before the expiration of the time within which the arbitrators themselves might, according to the terms of the original submission, have made an award is nevertheless good. Richards v. Brockenbrough's Adm'r, 22 Va. (1 Rand.) 449, 1823 Va. LEXIS 28 (1823).

    CIRCUIT COURT OPINIONS

    Independent investigation by arbitrators. —

    Property owners’ motion to vacate an arbitration award in favor of a contractor was granted; the arbitrators committed misconduct by conducting an independent investigation without the knowledge of the parties, and those acts prejudiced the owners. Lloyd v. Nomikos, 68 Va. Cir. 27, 2005 Va. Cir. LEXIS 64 (Goochland County Feb. 18, 2005).

    Award obtained by fraud, or other undue means. —

    Because the owners representations misled an arbitrator to conclude that a different house was being built by the contractors than what that for which the parties’ contract called and that information concerning it was beyond the scope of discovery, the award was obtained by fraud or other undue means. Sunnybrook Homes, Inc. v. Sikkar, 72 Va. Cir. 625, 2005 Va. Cir. LEXIS 373 (Richmond Oct. 24, 2005).

    Arbitrators did not exceed their powers. —

    Based on the standard arbitration language in a construction contract between a contractor and the homebuyers that all claims or disputes between the parties arising out of, or relating to the contract, or the breach thereof were to be decided by arbitration, and because the contractor did not show that a separate agreement was applicable to the conveyance of the lot to the homebuyers, and therefore, outside the realm of the contract, an arbitrator’s finding that a contractor anticipatorily breached its duty to construct and convey a home and lot to the homebuyers was upheld, as related to the contract documents, and thus, subject to arbitration. Pieper v. Bison Bldg. Co., L.L.C., 71 Va. Cir. 101, 2006 Va. Cir. LEXIS 105 (Fairfax County June 5, 2006).

    Corporation’s motion pursuant to § 8.01-581.010 to vacate an arbitration award in favor of a power company was denied, because the arbitrators did not exceed their powers, and an alleged improper application of Virginia law was not among the grounds available on which to vacate an arbitration award. Alstom Power, Inc. v. BBF, Inc., 71 Va. Cir. 55, 2006 Va. Cir. LEXIS 231 (Richmond Mar. 20, 2006), aff'd, 274 Va. 326 , 645 S.E.2d 467, 2007 Va. LEXIS 81 (2007).

    Award confirmed absent timely objection. —

    Trial court confirmed arbitration award, where corporation failed to object before the trial court within the 90-day limitations period under §§ 8.01-581.010 and 8.01-581.011 .Hilton v. Quantum Commun. Group, Inc., 59 Va. Cir. 163, 2002 Va. Cir. LEXIS 83 (Fairfax County June 5, 2002).

    Denial of a motion to vacate an arbitration award was appropriate because the application to vacate the arbitration award was not made within the statutorily required ninety days after delivery of a copy of the award to the applicant. Priority Imps. Battlefield, Inc. v. Reese, 91 Va. Cir. 63, 2015 Va. Cir. LEXIS 132 (Chesapeake July 28, 2015).

    Rehearing before arbitrator to correct offending language preferable to vacating entire arbitration award. —

    Although the trial could had the authority to vacate the arbitrator’s award if it found that the arbitrator exceeded her power, the prospective employer faced an extremely high burden in seeking to vacate an arbitration award because the scope of review of an arbitrator’s award was among the narrowest known at law; accordingly, since the arbitrator exceeded her authority only to the extent of including in the arbitrator’s award a permanent injunction against the prospective employer hiring or soliciting the company’s employees for work the prospective employer was supposed to be subcontracting to the company, the better remedy, pursuant to § 8.01-581.010 , was to order the arbitrator to conduct a rehearing in order to correct the offending language in the arbitration award since the language permanently banning the prospective employer’s hiring or solicitation of the company’s employees violated Virginia public policy as an unlawful restraint on trade. Anteon Corp. v. BTG Inc., 62 Va. Cir. 41, 2003 Va. Cir. LEXIS 85 (Fairfax County May 6, 2003).

    Arbitration agreement held valid. —

    Lack of jury waiver language did not invalidate an arbitration agreement contained in a vehicle purchase contract, as the loss of the right to a jury trial is a necessary and obvious consequence of an agreement to arbitrate. Howard v. Whitlow Chevrolet, Inc., 2005 Va. Cir. LEXIS 367 (Richmond Jan. 26, 2005).

    Objections to arbitration proceedings waived. —

    Auto buyer showed no basis for invalidating an arbitration award against an auto dealer; once the proceedings began without objection by the buyer, matters of alleged pre-hearing ex parte communications between the auto dealer’s attorney and the arbitrators and an arbitrator’s alleged partiality were waived. Howard v. Whitlow Chevrolet, Inc., 2005 Va. Cir. LEXIS 367 (Richmond Jan. 26, 2005).

    Arbitration award held valid. —

    Auto buyer showed no basis for invalidating an arbitration award against an auto dealer; the buyer did not allege how the fact that the arbitrators’ viewing of his vehicle was impaired by a rain storm affected the award, or how he was prejudiced by the dealer’s failure to provide discovery. Howard v. Whitlow Chevrolet, Inc., 2005 Va. Cir. LEXIS 367 (Richmond Jan. 26, 2005).

    Request to vacate denied. —

    As there was no evidence that the employee acted in a manner inconsistent with the total viability of the agreement until he changed his position midstream during the arbitration proceedings, the agreement, including the mandatory arbitration clause at issue, constituted a legally enforceable contract and subdivision 5 of § 8.01-581.010 did not provide a basis for setting aside the arbitration award. Hassett v. WaveCrest Labs., LLC, 75 Va. Cir. 122, 2008 Va. Cir. LEXIS 31 (Fairfax County Mar. 17, 2008).

    § 8.01-581.011. Modification or correction of award.

    Upon application made within ninety days after delivery of a copy of the award to the applicant, the court shall modify or correct the award where:

    1. There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
    2. The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
    3. The award is imperfect in a matter of form, not affecting the merits of the controversy.

      If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.

      An application to modify or correct an award may be joined in the alternative with an application to vacate the award.

    History. 1986, c. 614.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arbitration and Award, §§ 43, 52, 54.

    CASE NOTES

    Time limitations. —

    Under this section, husband’s failure to request arbitration award be modified or corrected by arbitrator within 90 days of the date the award was delivered to the husband meant that he could not challenge that award on appeal, as no timely request had been made to modify or correct the award while it was in the trial court; thus, appellate court was also not entitled to modify or correct the award on appeal. Marks v. Marks, 36 Va. App. 216, 548 S.E.2d 919, 2001 Va. App. LEXIS 424 (2001).

    Order compelling arbitration not a final order. —

    Order that compelled arbitration of an employee’s claim against her employer pursuant to the Virginia Uniform Arbitration Act, § 8.01-581.01 et seq., was not a final judgment order for purposes of appeal as contemplated by subdivision A 3 of § 8.01-670 ; pursuant to § 8.01-581.010 , the trial court retained jurisdiction to vacate an arbitration award, and, pursuant to § 8.01-581.011 , the trial court retained jurisdiction to modify or correct an arbitration award. Seguin v. Northrop Grumman Sys. Corp., 277 Va. 244 , 672 S.E.2d 877, 2009 Va. LEXIS 30 (2009).

    CIRCUIT COURT OPINIONS

    Arbitrators did not exceed their powers. —

    Based on the standard arbitration language in a construction contract between a contractor and the homebuyers that all claims or disputes between the parties arising out of, or relating to the contract, or the breach thereof were to be decided by arbitration, and because the contractor did not show that a separate agreement was applicable to the conveyance of the lot to the homebuyers, and therefore, outside the realm of the contract, an arbitrator’s finding that a contractor anticipatorily breached its duty to construct and convey a home and lot to the homebuyers was upheld, as related to the contract documents, and thus, subject to arbitration. Pieper v. Bison Bldg. Co., L.L.C., 71 Va. Cir. 101, 2006 Va. Cir. LEXIS 105 (Fairfax County June 5, 2006).

    Request to modify refused. —

    The court refused owner’s request to modify or correct arbitration award in favor of general contractor because it was actually a request to recompute the damage award based on what owner contended were the relevant facts under what it said was a proper construction of the law. Va. E. Co., L.L.C. v. N.C. Monroe Constr. Co., 56 Va. Cir. 220, 2001 Va. Cir. LEXIS 147 (Salem June 11, 2001).

    Although both state and federal law permitted the vacation of an arbitration award where the arbitrator had made an award on a matter not submitted to her, the trial court could not modify the arbitrator’s award restricting the prospective employer’s ability to employ some of the company’s employees, allegedly to perform some work that the company was supposed to perform under the parties’ subcontract, as the issue involved the prospective employer’s alleged violation of a non-solicitation clause in the subcontract; since the issue drew its essence from the subcontract, the arbitrator did not exceed her authority in considering it, and, thus, the trial court could not modify the arbitrator’s award in that regard. Anteon Corp. v. BTG Inc., 62 Va. Cir. 41, 2003 Va. Cir. LEXIS 85 (Fairfax County May 6, 2003).

    Where a vehicle buyer arbitrated his disputes with the dealer, the buyer’s allegations that: (1) there were ex parte communications between the arbitrators and the dealer’s counsel; (2) an arbitrator was partial; (3) the arbitration agreement lacked jury waiver language (4) the dealer failed to comply with discovery requests; and (4) the arbitrators’ view of the vehicle was impaired by a rain storm, failed to justify a modification of the award. Howard v. Whitlow Chevrolet, Inc., 2005 Va. Cir. LEXIS 367 (Richmond Jan. 26, 2005).

    Award confirmed absent timely objection. —

    Trial court confirmed arbitration award, where corporation failed to object before the trial court within the 90-day limitations period under §§ 8.01-581.010 and 8.01-581.011 .Hilton v. Quantum Commun. Group, Inc., 59 Va. Cir. 163, 2002 Va. Cir. LEXIS 83 (Fairfax County June 5, 2002).

    § 8.01-581.012. Judgment or decree on award.

    Upon granting an order confirming, modifying or correcting an award, a judgment or decree shall be entered in conformity therewith and be docketed and enforced as any other judgment or decree. Costs of the application and of the proceedings subsequent thereto, and disbursements may be awarded by the court.

    History. 1986, c. 614.

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arbitration and Award, §§ 22, 23, 34, 42, 44.

    CASE NOTES

    Judgment or decree on award. —

    Under this section, the trial court, in light of the wife’s motion for confirmation of arbitration award, was required to and did enter a divorce decree in conformity with the arbitration award entered in her favor. Marks v. Marks, 36 Va. App. 216, 548 S.E.2d 919, 2001 Va. App. LEXIS 424 (2001).

    The costs of the application to confirm, modify, or correct an arbitration award, the proceedings subsequent thereto, and any disbursements may be awarded by the court. Bates v. McQueen, 270 Va. 95 , 613 S.E.2d 566, 2005 Va. LEXIS 60 (2005).

    Preclusive effect. —

    Bankruptcy court entered an order modifying the automatic stay to permit a pending action to confirm an arbitration award to go forward where the court found that there was high likelihood that an unconfirmed arbitration award was not entitled to preclusive effect under Virginia law and an unconfirmed arbitration award was not entitled to full faith and credit under 28 U.S.C.S. § 1738. Am. College of Dentists Found., Inc. v. Dorris Mktg. Group, Inc. (In re Dorris Mktg. Group, Inc.), No. 03-15025-SSM, 2005 Bankr. LEXIS 282 (Bankr. E.D. Va. Jan. 7, 2005).

    CIRCUIT COURT OPINIONS

    Upon proper notice of an arbitration hearing, an application to confirm an arbitration award in favor of a group of employees, and against their employer, was granted; further, the court reaffirmed that the employees could pay a portion of the employer’s costs, and the employer failed to appear at the hearing at its own risk. Vaughn v. Sionbai, L.L.C., 2007 Va. Cir. LEXIS 45 (Fairfax County Mar. 12, 2007).

    § 8.01-581.013. Applications to court.

    An application to the court under this article shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in an action.

    History. 1986, c. 614.

    § 8.01-581.014. Court; jurisdiction.

    The term “court” means a circuit court or general district court of the Commonwealth having jurisdiction over the subject matter of the controversy.

    History. 1986, c. 614; 1995, c. 342; 2016, c. 181.

    The 2016 amendments.

    The 2016 amendment by c. 181 substituted “circuit court or general district court of the” for “court of this.”

    § 8.01-581.015. Venue.

    Except as provided in subsection B of § 8.01-262.1 , an initial application shall be made to the court of the county or city in which the agreement provides the arbitration hearing shall be held or, if the hearing has been held, in the county or city in which it was held. Otherwise, venue of the application shall be as provided in Chapter 5 (§ 8.01-257 et seq.) of this title. All subsequent applications shall be made to the court hearing the initial application unless the court otherwise directs.

    History. 1986, c. 614; 1991, c. 489.

    CIRCUIT COURT OPINIONS

    Venue improper. —

    Venue was not proper in the county in which an action to vacate an arbitration award was filed because (1) contractors did not show competitors regularly conducted substantial business activity there, as the only evidence of the competitors’ business activity there was dropping off checks and documents at the contractors’ offices there, and (2) no individual competitor lived there. Comfort Sys. of Va. v. P.J. Potter Enters., 104 Va. Cir. 239, 2020 Va. Cir. LEXIS 19 (Chesapeake Feb. 11, 2020).

    § 8.01-581.016. Appeals.

    An appeal may be taken from:

    1. An order denying an application to compel arbitration made under § 8.01-581.02 ;
    2. An order by a general district court granting an application to compel arbitration;
    3. An order granting an application to stay arbitration made under subsection B of § 8.01-581.02 ;
    4. An order confirming or denying an award;
    5. An order modifying or correcting an award;
    6. An order vacating an award without directing a rehearing; or
    7. A judgment or decree entered pursuant to the provisions of this article.The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action.

    History. 1986, c. 614; 2016, c. 181.

    Cross references.

    As to compromise by fiduciary, see §§ 8.01-55 , 8.01-424 , 8.01-425 .

    The 2016 amendments.

    The 2016 amendment by c. 181 added subdivision 2 and renumbered the remaining subdivisions accordingly.

    Law Review.

    For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

    Michie’s Jurisprudence.

    For related discussion, see 2A M.J. Arbitration and Award, § 54.

    CASE NOTES

    No appeal from order compelling arbitration. —

    Appellate court lacked jurisdiction to consider an employee’s appeal of a trial court order compelling arbitration of her claim against her employer because § 8.01-581.016 did not confer any right to appeal from an order compelling arbitration. Seguin v. Northrop Grumman Sys. Corp., 277 Va. 244 , 672 S.E.2d 877, 2009 Va. LEXIS 30 (2009).

    Denial of a motion to compel arbitration is an appealable order. —

    Denial of a motion to compel arbitration is an appealable order under the provisions of subdivision 1 of § 8.01-581.016 .Bank of the Commonwealth v. Hudspeth, 282 Va. 216 , 714 S.E.2d 566, 2011 Va. LEXIS 189 (2011).

    Chapter 21.1. Medical Malpractice.

    Article 1. Medical Malpractice Review Panels; Arbitration of Malpractice Claims.

    § 8.01-581.1. Definitions.

    As used in this chapter:

    “Health care” means any act, professional services in nursing homes, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical diagnosis, care, treatment or confinement.

    “Health care provider” means (i) a person, corporation, facility or institution licensed by this Commonwealth to provide health care or professional services as a physician or hospital, dentist, pharmacist, registered nurse or licensed practical nurse or a person who holds a multistate privilege to practice such nursing under the Nurse Licensure Compact, nurse practitioner, optometrist, podiatrist, physician assistant, chiropractor, physical therapist, physical therapy assistant, clinical psychologist, clinical social worker, professional counselor, licensed marriage and family therapist, licensed dental hygienist, health maintenance organization, or emergency medical care attendant or technician who provides services on a fee basis; (ii) a professional corporation, all of whose shareholders or members are so licensed; (iii) a partnership, all of whose partners are so licensed; (iv) a nursing home as defined in § 54.1-3100 except those nursing institutions conducted by and for those who rely upon treatment by spiritual means alone through prayer in accordance with a recognized church or religious denomination; (v) a professional limited liability company comprised of members as described in subdivision A 2 of § 13.1-1102 ; (vi) a corporation, partnership, limited liability company or any other entity, except a state-operated facility, which employs or engages a licensed health care provider and which primarily renders health care services; or (vii) a director, officer, employee, independent contractor, or agent of the persons or entities referenced herein, acting within the course and scope of his employment or engagement as related to health care or professional services.

    “Health maintenance organization” means any person licensed pursuant to Chapter 43 (§ 38.2-4300 et seq.) of Title 38.2 who undertakes to provide or arrange for one or more health care plans.

    “Hospital” means a public or private institution licensed pursuant to Chapter 5 (§ 32.1-123 et seq.) of Title 32.1 or Article 2 (§ 37.2-403 et seq.) of Chapter 4 of Title 37.2.

    “Impartial attorney” means an attorney who has not represented (i) the claimant, his family, his partners, co-proprietors or his other business interests; or (ii) the health care provider, his family, his partners, co-proprietors or his other business interests.

    “Impartial health care provider” means a health care provider who (i) has not examined, treated or been consulted regarding the claimant or his family; (ii) does not anticipate examining, treating, or being consulted regarding the claimant or his family; or (iii) has not been an employee, partner or co-proprietor of the health care provider against whom the claim is asserted.

    “Malpractice” means any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.

    “Patient” means any natural person who receives or should have received health care from a licensed health care provider except those persons who are given health care in an emergency situation which exempts the health care provider from liability for his emergency services in accordance with § 8.01-225 or 44-146.23.

    “Physician” means a person licensed to practice medicine or osteopathy in this Commonwealth pursuant to Chapter 29 (§ 54.1-2900 et seq.) of Title 54.1.

    “Professional services in nursing homes” means services provided in a nursing home, as that term is defined in clause (iv) of the definition of health care provider in this section, by a health care provider related to health care, staffing to provide patient care, psycho-social services, personal hygiene, hydration, nutrition, fall assessments or interventions, patient monitoring, prevention and treatment of medical conditions, diagnosis or therapy.

    History. Code 1950, § 8-911; 1976, c. 611; 1977, c. 617; 1981, c. 305; 1986, cc. 227, 511; 1989, cc. 146, 730; 1991, cc. 455, 464; 1993, c. 268; 1994, cc. 114, 616, 651; 2001, c. 98; 2003, cc. 487, 492; 2005, cc. 482, 649, 692; 2006, c. 638; 2008, cc. 121, 157, 169, 205; 2014, c. 89; 2015, cc. 295, 306.

    Cross references.

    As to tort liability of hospitals, see § 8.01-38 .

    As to limitation on recovery of punitive damages in actions, including medical malpractice actions, see § 8.01-38.1 .

    As to notice of claims against the Commonwealth involving medical malpractice, see § 8.0-195.6.

    As to statute of limitations for claims against the Commonwealth involving medical malpractice, see § 8.01-195.7 .

    As to practitioner’s disclosure of information when necessary for the protection or enforcement of the practitioner’s legal rights including such rights with respect to medical malpractice actions, see § 8.01-399 .

    As to limitation on recovery in certain medical malpractice actions, see § 8.01-581.15 .

    As to the Medical Malpractice Joint Underwriting Association, see § 38.2-2800. For the Medical Malpractice Rules of Practice, see Volume 11 of the Code of Virginia.

    Editor’s note.

    Acts 2015, cc. 295 and 306, cl. 2 provides: “Nothing in this act, § 8.01-401.2:1 , or § 8.01-401.3 shall be construed as a codification of Rule 702 of the Federal Rules of Evidence as presently construed.”

    The 2001 amendments.

    The 2001 amendment by c. 98, in the paragraph defining “Health care provider,” deleted “or an officer, employee or agent thereof acting in the course and scope of his employment, or” from the end of clause (v), inserted “or” at the end of clause (vi), and added clause (vii); and transferred the paragraph defining “Physician” from next-to-last paragraph to last paragraph.

    The 2003 amendments.

    The 2003 amendment by c. 487, in the paragraph defining “health care provider,” substituted “or, health maintenance organization, or emergency medical care attendant or technician who provides services on a fee basis” for “or, health maintenance organization” in clause (i), and substituted “subdivision A 2 of § 13.1-1102 ” for “§ 13.1-1102 A. 2.” in clause (v).

    The 2003 amendment by c. 492, in the paragraph defining “health care provider,” inserted “independent contractor” following “employee” and inserted “or engagement” following “employment” in clause (vii).

    The 2005 amendments.

    The 2005 amendment by c. 482 inserted “or a person who holds a multistate privilege to practice such nursing under the Nurse Licensure Compact” in the definition of “Health care provider” and made minor stylistic changes.

    The 2005 amendments by cc. 649 and 692 are identical, and inserted “action or breach of contract action for personal injuries or wrongful death” in the definition of “Malpractice”; and made minor stylistic changes.

    The 2006 amendments.

    The 2006 amendment by c. 638 inserted “licensed marriage and family therapist” in clause (i) of the paragraph defining “Health care provider.”

    The 2008 amendments.

    The 2008 amendments by cc. 121 and 157 are identical, and added “or 44-146.23” at the end of the paragraph defining “Patient.”

    The 2008 amendments by cc. 169 and 205 are identical, and inserted “professional services in nursing homes” in the paragraph defining “Health care” and added the paragraph defining “Professional services in nursing homes.”

    The 2014 amendments.

    The 2014 amendment by c. 89, in definition “Health care provider”, clause (i), inserted “physician assistant.”

    The 2015 amendments.

    The 2015 amendments by cc. 295 and 306 are identical, and in the definition of “Health care provider” inserted “nurse practitioner” in clause (i).

    Law Review.

    For article on Virginia’s Medical Malpractice Review Panel, see 11 U. Rich. L. Rev. 51 (1976).

    For note, “Medical Malpractice Arbitration: A Comparative Analysis,” see 62 Va. L. Rev. 1285 (1976).

    For survey of Virginia insurance law for the year 1975-1976, see 62 Va. L. Rev. 1446 (1976).

    For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

    For note on a constitutional analysis of Virginia’s Medical Malpractice Act, see 37 Wash. & Lee L. Rev. 1192 (1980).

    For article on the limitation on recovery in medical negligence cases in Virginia, see 16 U. Rich. L. Rev. 799 (1982).

    For article, “Medical Malpractice Review Panels in Operation in Virginia,” see 19 U. Rich. L. Rev. 273 (1985).

    For comment, “Scope of Permissible Pretrial Discovery of Medical Malpractice Review Panel Deliberations in Virginia: Klarfeld v. Salsbury,” see 10 G.M.U. L. Rev. 577 (1988).

    For survey on medical malpractice in Virginia for 1989, see 23 U. Rich. L. Rev. 731 (1989).

    For article, “Recent Developments in Medical Malpractice and Health Care Law,” see 24 U. Rich. L. Rev. 655 (1990).

    For article, “Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy,” see 47 Wash. & Lee L. Rev. 379 (1990).

    For a review of damages in medical malpractice in Virginia, see 33 U. Rich. L. Rev. 919 (1999).

    For a note, “Pulliam v. Coastal Emergency Services of Richmond, Inc.: Reconsidering the Standard of Review and Constitutionality of Virginia’s Medical Malpractice Cap,” see 8 Geo. Mason L. Rev. 587 (2000).

    For an article, “The Quiet Demise of Deference to Custom: Malpractice Law at the Millenium,” see 57 Wash. & Lee L. Rev. 163 (2000).

    For annual survey article discussing the state of health care law in Virginia, see 38 U. Rich. L. Rev. 137 (2003).

    For annual essay of Virginia Law: “Discovery Divide: Virginia Code Section 8.01-581 ’s Quality Assurance Privilege and Its Protection of Healthcare Provider Policies and Incident Reports,” see 39 U. Rich. L. Rev. 61 (2004).

    For 2006 survey article, “Health Care Law,” see 41 U. Rich. L. Rev. 179 (2006).

    For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For article on medical malpractice law for the year 2007-2008, see 43 U. Rich. L. Rev. 227 (2008).

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Physicians and Surgeons, § 15.

    CASE NOTES

    Editor’s note.

    Some of the cases cited below were decided under this article as it read prior to later amendments thereto.

    Constitutionality. —

    Virginia Medical Malpractice Act does not violate Va. Const., Art. IV, § 14, which prohibits the enactment of any local, special or private law regulating the practice in or changing the rules of evidence in any judicial proceedings or inquiry before the courts or other tribunals but constitutes a valid legislative classification, since a law may apply to a small class so long as the classification is reasonable and the law applies equally to all persons within the class. DiAntonio v. Northampton-Accomack Mem. Hosp., 628 F.2d 287, 1980 U.S. App. LEXIS 14551 (4th Cir. 1980).

    The Virginia Medical Malpractice Act does not violate Virginia constitutional provision vesting the judicial power in the Supreme Court and other courts established by the General Assembly, since the essence of judicial power is the final authority to render and enforce a judgment, and the Medical Malpractice Review Panel’s opinion is binding upon no one. DiAntonio v. Northampton-Accomack Mem. Hosp., 628 F.2d 287, 1980 U.S. App. LEXIS 14551 (4th Cir. 1980).

    The different treatment of medical malpractice plaintiffs from other tort plaintiffs is not a denial of equal protection, when the special problems posed by soaring insurance costs are considered. DiAntonio v. Northampton-Accomack Mem. Hosp., 628 F.2d 287, 1980 U.S. App. LEXIS 14551 (4th Cir. 1980).

    Applicability. —

    Medical Malpractice Act applied only to medical treatment and individual patient care, and, thus, the trial court erred in concluding that claims for negligence, and sexual assault and battery, could only be brought under the Medical Malpractice Act. Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37 , 630 S.E.2d 301, 2006 Va. LEXIS 61 (2006).

    No physician-patient relationship existed between the mother and either psychiatrist or the social worker; the mother signed a contract for life coaching, which was not medical care, and she never saw the psychiatrist or the social worker. The mother did not agree to receive, and neither the psychiatrist nor the social worker agreed to provide, health care as defined by Virginia’s Medical Malpractice Act and there was no evidence that the psychiatrist or the social worker advised the life coach as to the course of treatment for the mother; when the psychiatrist and the social worker each advised the life coach to report the mother’s threats to the department of social services, they were not providing medical advice but rather were giving non-medical professional advice. Wolf v. Fauquier County Bd. of Supervisors, 555 F.3d 311, 2009 U.S. App. LEXIS 2256 (4th Cir. 2009).

    Purpose of 1994 amendments. —

    The General Assembly intended the 1994 amendments adding new entities to the definition of “health care provider” to serve the same purpose as the original enactment of the medical malpractice cap, i.e., to provide a remedy for a perceived social problem, the unavailability of medical malpractice insurance at affordable rates. Thus, the Virginia Supreme Court rejected the argument that the 1994 amendment contained no statement of purpose and therefore failed the test that a statutory scheme must bear a reasonable and substantial relationship to the object sought to be accomplished by the legislation. Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1 , 509 S.E.2d 307, 1999 Va. LEXIS 3 (1999).

    Actions constituting “torts” under the act. —

    Assault and battery as well as intentional infliction of emotional distress are “torts,” and qualify as “any” tort under the act. Hagan v. Antonio, 240 Va. 347 , 397 S.E.2d 810, 1990 Va. LEXIS 151 (1990).

    “Health care provider.” —

    Corporation which provides emergency physicians to staff emergency departments of hospitals was an entity which primarily renders health care services within the meaning of the definition of “health care provider.” Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1 , 509 S.E.2d 307, 1999 Va. LEXIS 3 (1999).

    In a family’s suit against numerous state, county, and private defendants for separating the daughter from the mother and stepfather because of allegations of sexual abuse, a safe house, safe house employees, a foster care organization, and caseworkers were entitled to summary judgment or dismissal as to malpractice claims because they were not health care providers. Gedrich v. Fairfax County Dep't of Family Servs., 282 F. Supp. 2d 439, 2003 U.S. Dist. LEXIS 16312 (E.D. Va. 2003).

    Trial court erred in granting the clinical psychologist’s demurrer to the patient’s motion for judgment concerning the patient’s medical malpractice claim; the patient and clinical psychologist had a limited physician-patient relationship arising out of the fact that the patient had impliedly agreed to an independent medical examination pursuant to Va. Sup. Ct. R. 4:10, the patient alleged sufficient facts from which it could be determined that the clinical psychologist owed her a duty not to conduct himself during the examination in such a way as to harm her and she alleged that his conduct in suggesting that she was faking her injury, when he allegedly knew that she suffered from post-traumatic stress disorder and a brain injury, proximately caused her injury. Harris v. Kreutzer, 271 Va. 188 , 624 S.E.2d 24, 2006 Va. LEXIS 11 (2006).

    Father who underwent genetic testing was a proper plaintiff in a “wrongful birth” suit based on erroneous prenatal genetic testing results for his then-unborn child. However, the testing company was a “health care provider” under the Virginia Medical Malpractice Act, § 8.01-581.1 et seq., which limited damages that could be awarded as the testing company employed or engaged licensed health care providers and primarily rendered health care services and as it also was an independent contractor of the physician who provided the genetic counseling services that relied upon the genetic testing performed on plaintiffs by the company. Khadim v. Lab. Corp. of Am., 838 F. Supp. 2d 448, 2011 U.S. Dist. LEXIS 128493 (W.D. Va. 2011).

    Pharmacy was a health care provider, and therefore it was required to comply with the statute of limitations, because a “health care provider” was a person, corporation, facility or institution licensed by the Commonwealth to provide health care or professional services as a pharmacist, and there was no indication that the General Assembly intended to exclude pharmacies from the term “health care provider.” Summit Pharm., Inc. v. Costco Wholesale, 73 Va. App. 96, 855 S.E.2d 866, 2021 Va. App. LEXIS 49 (2021).

    Existence of physician-patient relationship with health care providers. —

    Parents sufficiently pled facts which, if proven at trial, would show the existence of a physician-patient relationship between them and their health care providers, when they pled that they requested the health care providers to provide all health care that a family should receive from a pediatrician and a professional corporation engaged in providing health care services relating to the practice of pediatrics and that the health care providers agreed to provide the parents with the requested services. Didato v. Strehler, 262 Va. 617 , 554 S.E.2d 42, 2001 Va. LEXIS 119 (2001).

    Existence of physician-patient relationship not shown. —

    In wrongful birth action, the father failed to show a doctor-patient relationship between the father and a doctor, such that the doctor owed the father a duty of care; the doctor’s diagnosis, care, or treatment on the day in question was directed toward the mother, not the father. Fruiterman v. Granata, 276 Va. 629 , 668 S.E.2d 127, 2008 Va. LEXIS 110 (2008).

    Alleged breach of duty of confidentiality sounded in tort and not in contract; because the alleged breach of duty of confidentiality sounded in tort, it was “malpractice” for the reason that it was “any tort based on health care” under the act. It followed that the trial court properly sustained the motion to dismiss because notice of claim was not given before suit was filed in violation of subsection A of § 8.01-581.2 .Pierce v. Caday, 244 Va. 285 , 422 S.E.2d 371, 9 Va. Law Rep. 261, 1992 Va. LEXIS 96 (1992).

    Breast examination within the meaning of health care. —

    A breast examination, including the touching, is an inseparable part of a typical, complete physical examination of a woman, and therefore the defendant’s conduct during a breast examination was “based on health care” within the meaning of the act. Hagan v. Antonio, 240 Va. 347 , 397 S.E.2d 810, 1990 Va. LEXIS 151 (1990).

    Availability of review provisions in federal court. —

    Even if federal courts are required to apply the provisions of the Virginia Medical Malpractice Act under the Erie doctrine, the malpractice review provisions otherwise available to a defendant in state court litigation are not available when the action is commenced in federal court. Adkins v. Commonwealth ex rel. UVA Medical Ctr., 154 F.R.D. 139, 1994 U.S. Dist. LEXIS 3916 (W.D. Va. 1994).

    Hospital’s motion to refer a patient’s action to a medical malpractice review panel pursuant to the Virginia Medical Malpractice Act was denied because there was no statutory authority for the Supreme Court of Virginia to appoint a medical malpractice review panel for a case pending in federal court. Lovelace v. Rockingham Mem'l Hosp., 299 F. Supp. 2d 617, 2004 U.S. Dist. LEXIS 2025 (W.D. Va. 2004).

    Exhaustion of remedies under chapter as prerequisite to action in federal court. —

    The Virginia Medical Malpractice Act is applicable in a diversity action. Thus, exhaustion of this available remedy is required before bringing a medical malpractice action in a federal court sitting in diversity in Virginia. Herer v. Burns, 577 F. Supp. 762, 1984 U.S. Dist. LEXIS 20838 (W.D. Va. 1984), dismissed, De Santis v. Ricci, 614 F. Supp. 415, 1985 U.S. Dist. LEXIS 18383 (D.N.J. 1985).

    However, exhaustion of state remedies is not a prerequisite to an action under 42 U.S.C. § 1983. Therefore, plaintiffs, who did not rely solely on diversity jurisdiction, were not required to avail themselves of the Virginia Medical Malpractice Act before a federal court had jurisdiction to consider constitutional and pendent wrongful death claims. Herer v. Burns, 577 F. Supp. 762, 1984 U.S. Dist. LEXIS 20838 (W.D. Va. 1984), dismissed, De Santis v. Ricci, 614 F. Supp. 415, 1985 U.S. Dist. LEXIS 18383 (D.N.J. 1985).

    Cap applies to recoveries under the Emergency Medical Treatment and Active Labor Act. —

    The statutory cap of $1,000,000 (now $1,500,000) imposed by § 8.01-581.15 applies to medical malpractice recoveries under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd. Lee ex rel. Wetzel v. Alleghany Regional Hosp. Corp., 778 F. Supp. 900, 1991 U.S. Dist. LEXIS 16707 (W.D. Va. 1991).

    Virginia’s medical malpractice damages cap applied to claim under Emergency Medical Treatment and Active Labor Act (42 U.S.C. 1395dd) for failure to provide an appropriate medical screening. Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 1994 U.S. App. LEXIS 34586 (4th Cir. 1994).

    Child has statutory cap separate from cap on mother’s claims. —

    A mother and her newborn child are separate “patients,” and thus, each may recover a maximum of $1,500,000. Lee ex rel. Wetzel v. Alleghany Regional Hosp. Corp., 778 F. Supp. 900, 1991 U.S. Dist. LEXIS 16707 (W.D. Va. 1991).

    Statutory cap on damages set forth in Virginia’s Medical Malpractice Act applied to a patient’s cause of action against health care providers for prenatal care where she was born with serious and permanent injuries, because the definition of “health care” encompassed the medical services provided in utero. The fetus became a “patient” when she was born alive. Simpson v. Roberts, 287 Va. 34 , 752 S.E.2d 801, 2014 Va. LEXIS 14 (2014).

    A father seeking damages for emotional harm and medical expenses, resulting from the malpractice to the mother and child, may not recover separately. Lee ex rel. Wetzel v. Alleghany Regional Hosp. Corp., 778 F. Supp. 900, 1991 U.S. Dist. LEXIS 16707 (W.D. Va. 1991).

    The father’s claims for emotional distress and medical expenses are derivative of the child’s, and thus fall within the child’s statutory cap. Lee ex rel. Wetzel v. Alleghany Regional Hosp. Corp., 778 F. Supp. 900, 1991 U.S. Dist. LEXIS 16707 (W.D. Va. 1991).

    The Virginia Medical Malpractice Act contains no provision for vicarious liability, and the breadth of the statutory scheme suggests that none is intended; for example, because a physician, a nurse, or a hospital each may be held liable in their own right, there is no basis or reason for holding a physician liable for the conduct of another physician, a hospital nurse, or any other hospital employee. Peck v. Tegtmeyer, 834 F. Supp. 903, 1992 U.S. Dist. LEXIS 21870 (W.D. Va. 1992), aff'd, 4 F.3d 985, 1993 U.S. App. LEXIS 37919 (4th Cir. 1993).

    Standard of care for assisted living facilities. —

    Although hospitals and nursing homes are included within the definition of “health care provider” in this section, adult homes (assisted living facilities) are not so included; the omission is significant, and adult homes (assisted living facilities), where residents are provided room and board but there are no medically-trained personnel on the staff and residents are free to come and go at will, are not held to the standard of care which applies to health care providers. Furthermore, subject to the provisions of former § 63.1-182.1 (see now § 63.2-1808), such homes do not have a duty to care for the health, welfare, and safety of their residents when such residents are absent from the home’s premises. Commercial Distribs., Inc. v. Blankenship, 240 Va. 382 , 397 S.E.2d 840, 1990 Va. LEXIS 153 (1990).

    Purpose of assisted living facilities. —

    Adult homes (assisted living facilities) are neither hospitals, nursing homes, nor custodial institutions; they exist pursuant to statutes intended to provide a residence for persons under disabilities, offering those persons the greatest degree of freedom and participation in normal life consistent with their conditions. Commercial Distribs., Inc. v. Blankenship, 240 Va. 382 , 397 S.E.2d 840, 1990 Va. LEXIS 153 (1990).

    Breach of contract action not malpractice. —

    Had the General Assembly meant to include breach of contract actions within the definition of “malpractice,” surely it would have so provided. Glisson v. Loxley, 235 Va. 62 , 366 S.E.2d 68, 4 Va. Law Rep. 1987, 1988 Va. LEXIS 29 (1988).

    The legislature was directing its attention to torts and not breaches of contract in the enactment which established the medical malpractice review system. Glisson v. Loxley, 235 Va. 62 , 366 S.E.2d 68, 4 Va. Law Rep. 1987, 1988 Va. LEXIS 29 (1988).

    Coverage of breach of warranty claims. —

    In an action in which a patient alleged that she suffered injuries as a result of the failure of batteries in a surgically implanted pulse generator, there was a possibility that the patient’s claim against a hospital for breach of the implied warranty of merchantability was not covered by the Virginia Medical Malpractice Act because the patient’s claim accrued before § 8.01-581.1 was amended to include breach of contract claims. Sanders v. Medtronic, Inc., No. 4:06cv57, 2006 U.S. Dist. LEXIS 45516 (E.D. Va. June 26, 2006).

    Unlicensed physician not health care provider. —

    Since the doctor who performed the service was not licensed in the Commonwealth when he rendered the services to the deceased, he was not a health care provider within the purview of the statute. Taylor v. Mobil Corp., 248 Va. 101 , 444 S.E.2d 705, 10 Va. Law Rep. 1483, 1994 Va. LEXIS 102 (1994).

    Clinical laboratory not health care provider. —

    A clinical laboratory which provided erroneous test results to a physician was not a health care provider under the Virginia Medical Malpractice Act. Richman v. National Health Labs., Inc., 235 Va. 353 , 367 S.E.2d 508, 4 Va. Law Rep. 2538, 1988 Va. LEXIS 63 (1988).

    Clinical laboratory was not an agent or employee of doctors and thus was not a health care provider. Consequently, this act did not apply to the lab, and filing the notice of claim under the act did not toll the statute of limitations as to the claim of negligence against the lab. Richman v. National Health Labs., Inc., 235 Va. 353 , 367 S.E.2d 508, 4 Va. Law Rep. 2538, 1988 Va. LEXIS 63 (1988).

    When infant is obstetrician’s patient. —

    At the moment of live birth, and until the pediatrician assumes responsibility for the care of the newborn, the infant is the obstetrician’s “patient.” Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670, 6 Va. Law Rep. 1399, 1990 Va. LEXIS 44 (1990).

    Refusal to provide ventilator treatment for infant with an encephaly. —

    Where hospital sought a declaration that its refusal to provide infant born with anencephaly with ventilator treatment did not constitute malpractice under the Virginia Medical Malpractice Act, the federal district court declined to “elbow its way” into Virginia medical malpractice standards by addressing the issue because of the significant state interest manifested by the review process as well as the Commonwealth’s interest in resolving contentious and unsettled social issue for itself. In re Baby K, 832 F. Supp. 1022, 1993 U.S. Dist. LEXIS 12574 (E.D. Va. 1993), aff'd, 16 F.3d 590, 1994 U.S. App. LEXIS 2215 (4th Cir. 1994).

    CIRCUIT COURT OPINIONS

    Applicability. —

    Pursuant to defendants’ motion for determination of applicability of the Virginia Medical Malpractice Act, the Act applied to plaintiff’s claim of inadequate staffing because defendants allegedly breached a standard of care particular to plaintiff as the alleged breach was that plaintiff was permitted or required to go to the bathroom on her own when she should not have gone on her own as she was not capable of doing so; and the fact that a staff member called from work might have been a contributing cause of the breach did not in itself serve to remove the claim from the purview of the Act. Peck v. Riverside Hosp., Inc., 91 Va. Cir. 537, 2015 Va. Cir. LEXIS 140 (Newport News Oct. 5, 2015).

    Hospital’s demurrer was overruled because a personal representative’s allegations that his decedent was sexually abused by a hospital employee fell outside the scope of the Virginia Medical Malpractice Act where the alleged acts and omissions involved decisions related to the operation of the hospital, rather than to the care of any particular patient, the personal representative’s claim under the Virginia Consumer Protection Act was alleged with adequate particularity, and the decedent was considered a member of the class of people for whose benefit the negligence per se statute was enacted, and suffered an injury of the type arguably against which the statute was designed to protect against. Parisi v. Cash, 91 Va. Cir. 415, 2015 Va. Cir. LEXIS 199 (Lynchburg Dec. 11, 2015).

    Complaint by the administrator of the decedent’s estate against a senior-care facility was a medical malpractice case because the decedent was a patient in the facility and an employee of the facility, who was alleged to have been the index case of COVID-19 for the facility, came into contact with the decedent in the employee’s role as a health care provider and in furtherance of medical treatment, and the decedent died from COVID-19 following the employee’s contact with the decedent. Webb v. Patrick Henry Hosp., Inc., 107 Va. Cir. 432, 2021 Va. Cir. LEXIS 57 (Newport News Mar. 30, 2021).

    Medical Malpractice Act constitutional. —

    Virginia Medical Malpractice Act, § 8.01-581.1 et seq., which provided a statutory cap on the amount of damages that could be awarded in a medical malpractice action, was constitutional since the law applied equally to all persons within the class, because the classification was reasonable, and because the medical malpractice cap was a rational means of achieving the legislative goal of securing health care services by maintaining the availability of malpractice insurance at affordable rates. Allen v. Mid-Atlantic Health Alliance, Inc., 63 Va. Cir. 59, 2003 Va. Cir. LEXIS 194 (Fredericksburg June 17, 2003), aff'd in part and rev'd in part, 268 Va. 222 , 601 S.E.2d 598, 2004 Va. LEXIS 133 (2004).

    “Patient” defined. —

    Nothing in the statute suggested that a person examined for purely evaluational purposes should be denied the rights provided to patients as defined by statute. Mansoor v. Favret, 55 Va. Cir. 302, 2001 Va. Cir. LEXIS 286 (Charlottesville June 13, 2001).

    “Health care provider.” —

    Demurrer of defendants, a hospital corporation and a health care corporation, to a motion for judgment by plaintiff patient in the patient’s medical malpractice action was denied where the trial court disagreed with defendants to the extent that they alleged that they were not liable because they were not “health care providers”; the amended motion for judgment stated that defendants operated a hospital, and, pursuant to § 8.01-581.1 , a corporation that provides health care or professional services as a hospital is a health care provider. Elliott v. Cook, 60 Va. Cir. 1, 2002 Va. Cir. LEXIS 121 (Loudoun County Jan. 7, 2002).

    There was nothing in the Uniform Commercial Code as adopted by Virginia, § 8.1A-101 et seq., or the Medical Malpractice Act, which stated that supplying a patient with a device for a fee was not a sale and that a health care provider could not be liable on a products liability theory under such circumstances; and had the General Assembly intended health care providers to be treated as “merchants,” such a provision would have been covered in the Medical Malpractice Act, but was not. Therefore the health care company was not a “seller” and was not subject to liability on a products liability theory in the patient’s action because health care providers render a service to their patients, and the transfer of any type of device to the patient during treatment is merely incidental to that treatment. Coffman v. Arthrex, Inc., 69 Va. Cir. 17, 2005 Va. Cir. LEXIS 143 (Augusta County Mar. 31, 2005).

    Where certain surgical procedures required general anesthesia, the dentist engaged the services of a certified registered nurse anesthetist (CRNA) to provide those services. Both the dentist and the CRNA qualified as “providers” for purposes of this section. Whitney v. Anthem Servs., 69 Va. Cir. 190, 2005 Va. Cir. LEXIS 264 (Rockingham County Oct. 17, 2005).

    Release of medical records. —

    Patient’s count alleging medical malpractice claim against a physician arising from the physician’s release of the patient’s medical records was recognized as a tort. Smith v. Kryzanowski, 69 Va. Cir. 185, 2005 Va. Cir. LEXIS 357 (Richmond Oct. 17, 2005).

    Virginia’s Malpractice Act permitted any party to the action to request a medical malpractice review panel; if a victim of malpractice could obviate such a panel merely by labeling his claim ordinary negligence, the legislative purpose would be thwarted. Mullins v. Woodmont Health Care Ctr., 56 Va. Cir. 295, 2001 Va. Cir. LEXIS 156 (Spotsylvania County July 31, 2001).

    Claim for refusal to treat patient. —

    Health plan’s demurrer to a patient’s suit was meritless because, although the patient had not exhausted his administrative remedies under Medicare, his claims were not for reimbursement from Medicare, but for health plan’s alleged refusal to treat him and its failure to properly take care of his surgical needs which caused injury beyond his Medicare claims; thus, his claims were brought only under Virginia’s Medical Malpractice Act for alleged tortious medical negligence acts. Quaranta v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc., 2007 Va. Cir. LEXIS 97 (Fairfax County Apr. 30, 2007).

    Fraud claim subsumed. —

    Patient’s claim for fraud against a podiatrist for altering her medical records to characterize her as argumentative and uncooperative was subsumed into her medical malpractice claim by virtue of this section. Since the fraud alleged was a tort claim against a health care provider, it came under the Medical Malpractice Act and could not be treated as a separate and independent claim. Langford v. Kelly, 54 Va. Cir. 310, 2000 Va. Cir. LEXIS 602 (Roanoke Dec. 22, 2000).

    Fraud claim not barred. —

    Trial court overruled the demurrer filed by the doctor and doctor’s employer that asserted that the patient’s fraud claim was barred by the Virginia Medical Malpractice Act; the patient’s motion for judgment alleged that the doctor made a misrepresentation to the patient before treatment occurred, and, thus, the alleged misrepresentation was not a part of the actual healthcare treatment, but, instead, could be brought as a separate fraud claim. Glenn v. Trauben, 70 Va. Cir. 446, 2004 Va. Cir. LEXIS 377 (Alexandria June 18, 2004).

    OPINIONS OF THE ATTORNEY GENERAL

    Standard of care. —

    A medical malpractice review panel or a finder of fact must apply the standard of care for health care providers based on that degree of skill and diligence practiced by comparable health care providers throughout the Commonwealth, as well as the testimony of expert witnesses regarding such standard of care. However, Virginia law permits proof of local customs to determine the appropriate standard. Further, the General Assembly has not adopted either a national standard or a particular organization’s standard of care. See opinion of Attorney General to The Honorable Linda T. Puller, Member, Senate of Virginia, 09-032, 2009 Va. AG LEXIS 33 (7/27/09).

    § 8.01-581.2. Request for review by medical malpractice review panel; rescission of request; determination on request.

    1. At any time within thirty days from the filing of the responsive pleading in any action brought for malpractice against a health care provider, the plaintiff or defendant may request a review by a medical malpractice review panel established as provided in § 8.01-581.3 . The request shall be forwarded by the party making the request to the Clerk of the Supreme Court of Virginia with a copy of the Motion for Judgment and a copy of all responsive pleadings. A copy of the request shall be filed with the clerk of the circuit court, and a copy shall be sent to all counsel of record. The request shall include the name of the judge to whom the case is assigned, if any. Upon receipt of such request, the Supreme Court shall select the panel members as provided in § 8.01-581.3 :1 and shall designate a panel within sixty days after receipt of the request. If a panel is requested, proceedings on the action based on the alleged malpractice shall be stayed during the period of review by the medical review panel, except that the judge may rule on any motions, demurrers, or pleas that can be disposed of as a matter of law, set the trial date after the panel has been designated and, prior to the designation of the panel, shall rule on any motions to transfer venue.
    2. After the selection of the members of the review panel, the requesting party may rescind a request for review by the panel only with the consent of all parties or with leave of the judge presiding over the panel.
    3. Any health care provider named as a defendant shall have the right to request a panel and, in that event, shall give notice of its request to the other health care providers named in the motion for judgment as well as to the plaintiff and his counsel of record. When a request for a medical review panel is made by any party, a single panel shall be designated and all health care providers against whom a claim is asserted shall be subject to the jurisdiction of such panel. The provisions of this subsection shall not prohibit the addition of parties pursuant to § 8.01-581.2:1 .

    History. Code 1950, § 8-912; 1976, c. 611; 1977, c. 617; 1982, c. 151; 1984, cc. 443, 777; 1986, c. 227; 1989, c. 561; 1993, c. 928; 1994, c. 38; 1995, c. 367; 2000, c. 213; 2001, c. 252.

    The 2000 amendments.

    The 2000 amendment by c. 213, in subsection A, substituted “party making the request to” for “clerk of the circuit court” and added “with a copy of the Motion for Judgment and a copy of all responsive pleadings” in the second sentence, added a third and a fourth sentence, and added “and shall designate a panel within sixty days after receipt of the request” at the end of the fifth sentence.

    The 2001 amendments.

    The 2001 amendment by c. 252 inserted “set the trial date after the panel has been designated” near the end of subsection A.

    Law Review.

    For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

    For note on constitutional analysis of Virginia’s Medical Malpractice Act, see 37 Wash. & Lee L. Rev. 1192 (1980).

    For a re-examination of sovereign tort immunity in Virginia, see 15 U. Rich. L. Rev. 247 (1981).

    For comment, “A Frivolous Lawsuit May Destroy the Career of a Professional: Is There No Remedy?”, see 17 U. Rich. L. Rev. 421 (1983).

    For article, “Medical Malpractice Review Panels in Operation in Virginia,” see 19 U. Rich. L. Rev. 273 (1985).

    For comment, “Scope of Permissible Pretrial Discovery of Medical Malpractice Review Panel Deliberations in Virginia: Klarfeld v. Salsbury,” see 10 Geo. Mason L. Rev. 577 (1988).

    For survey on medical malpractice in Virginia for 1989, see 23 U. Rich. L. Rev. 731 (1989).

    For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

    Michie’s Jurisprudence.

    For related discussion, see 12A M.J. Limitation of Actions, §§ 3, 53.

    CASE NOTES

    Editor’s note.

    Some of the cases below were decided under this article as it read prior to later amendments.

    The statutory language is clear and unambiguous; thus, the court will apply the plain meaning of the act’s language to the facts of each case. Hagan v. Antonio, 240 Va. 347 , 397 S.E.2d 810, 1990 Va. LEXIS 151 (1990).

    Non-adversarial procedure for developing medical records. —

    This unique pre-litigation procedure gives a Virginia health care provider an opportunity to develop the medical record in a non-adversarial fashion. Gardner v. Aetna Cas. & Sur. Co., 841 F.2d 82, 1988 U.S. App. LEXIS 2719 (4th Cir. 1988).

    Virginia’s procedural requirements not applicable to EMTALA claims. —

    The notice of claim provisions of this section conflict with the requirements of the federal Emergency Medical Treatment and Women in Active Labor provisions, 42 U.S.C. § 1395dd, of the Consolidated Omnibus Budget Reconciliation Act (COBRA), and therefore, are inapplicable to such causes of action. Smith v. Richmond Mem. Hosp., 243 Va. 445 , 416 S.E.2d 689, 8 Va. Law Rep. 2787, 1992 Va. LEXIS 28, cert. denied, 506 U.S. 967, 113 S. Ct. 442, 121 L. Ed. 2d 361, 1992 U.S. LEXIS 7001 (1992).

    Because Virginia’s procedural requirements under this section are potentially in direct conflict with, and therefore inconsistent with the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, they are not applicable to an EMTALA claim. Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 1994 U.S. App. LEXIS 34586 (4th Cir. 1994).

    Or to actions commenced in federal court. —

    Even if federal courts are required to apply the provisions of the Virginia Medical Malpractice Act under the Erie doctrine, the malpractice review provisions otherwise available to a defendant in state court litigation are not available when the action is commenced in federal court. Adkins v. Commonwealth ex rel. UVA Medical Ctr., 154 F.R.D. 139, 1994 U.S. Dist. LEXIS 3916 (W.D. Va. 1994); Swaim v. Fogle, 68 F. Supp. 2d 703, 1999 U.S. Dist. LEXIS 13547 (E.D. Va. 1999).

    Treatment of Filing Procedure in Medical Malpractice Rules. —

    The provisions of Rule Two(c) (see now Rule 2(a)) of the Medical Malpractice Rules stating that the request for a panel shall be deemed to be filed when delivered or mailed be registered or certified mail, do not conflict with the provisions of the Medical Malpractice Act, in violation of Va. Const., Art. VII, § 5. The authors of the act expressly empowered the Chief Justice to promulgate rules necessary to carry out its provisions. Rule Two(c) (see now Rule 2(a)) merely particularizes the mechanics of the filing requirements of this section and former § 8.01-581.9 . Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318, 1986 Va. LEXIS 184 (1986).

    A battery arising from health care is malpractice within the clear meaning of the malpractice statutes and the required notice should have been given. Glisson v. Loxley, 235 Va. 62 , 366 S.E.2d 68, 4 Va. Law Rep. 1987, 1988 Va. LEXIS 29 (1988).

    Clinical laboratory not health care provider. —

    A clinical laboratory, which provided erroneous test results to a physician, was not a health care provider under the Virginia Medical Malpractice Act. Richman v. National Health Labs., Inc., 235 Va. 353 , 367 S.E.2d 508, 4 Va. Law Rep. 2538, 1988 Va. LEXIS 63 (1988).

    Clinical laboratory was not an agent or employee of doctors and thus was not a health care provider. Consequently, this act did not apply to the lab, and filing the notice of claim under the act did not toll the statute of limitations as to the claim of negligence against the lab. Richman v. National Health Labs., Inc., 235 Va. 353 , 367 S.E.2d 508, 4 Va. Law Rep. 2538, 1988 Va. LEXIS 63 (1988).

    The method of service of a claim specified in this section is a procedural requirement which is deemed waived if an objection is not timely raised. Hewitt v. Virginia Health Servs. Corp., 239 Va. 643 , 391 S.E.2d 59, 6 Va. Law Rep. 2218, 1990 Va. LEXIS 59 (1990).

    The notice required by this section is neither a bill of particulars nor a pleading of any other kind. It is not required to contain a summary of the plaintiff’s evidence or an exposition of the plaintiff’s theories of the case; rather, its purpose is simply to call the defendant’s attention to the identity of the patient, the time of the alleged malpractice, and a description of the alleged acts of malpractice sufficient to enable the defendant to identify the case to which the plaintiff is referring. Hudson v. Surgical Specialists, Inc., 239 Va. 101 , 387 S.E.2d 750, 6 Va. Law Rep. 1047, 1990 Va. LEXIS 13 (1990).

    This section calls for reasonable notice. However, a notice of claims by its nature is not meant to be a particularized statement of claims. A notice calls the recipient’s attention to the general time, place, and character of the events complained of in the malpractice suit. Grubbs v. Rawls, 235 Va. 607 , 369 S.E.2d 683, 4 Va. Law Rep. 3129, 1988 Va. LEXIS 79 (1988).

    Notice does not need to contain particularized statement of claims. —

    This section does not intent that the notice contain a particularized statement of claims; trial court erred in restricting plaintiff’s evidence in malpractice case to the specific facts alleged in her notice of claim. Hudson v. Surgical Specialists, Inc., 239 Va. 101 , 387 S.E.2d 750, 6 Va. Law Rep. 1047, 1990 Va. LEXIS 13 (1990).

    The giving of notice to an adverse party is not a filing. Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318, 1986 Va. LEXIS 184 (1986).

    Notice letters held sufficient to encompass negligent post-operative treatment as well as failure to obtain informed consent and negligent surgery. Grubbs v. Rawls, 235 Va. 607 , 369 S.E.2d 683, 4 Va. Law Rep. 3129, 1988 Va. LEXIS 79 (1988).

    Application of notice and panel review provisions in federal court. —

    The notice requirement set forth in this section and the provision for panel review set forth in this section at the instance of either party to a medical malpractice action are so intimately bound up with the rights and obligations being asserted as to require their application in federal courts under the doctrine of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). DiAntonio v. Northampton-Accomack Mem. Hosp., 628 F.2d 287, 1980 U.S. App. LEXIS 14551 (4th Cir. 1980).

    Reasonable compliance required for defective notice. —

    When faced with an allegedly defective notice of claim, as opposed to the failure to file any such notice, reasonable compliance with the notice requirements is all that is mandated. Dolwick v. Leech, 800 F. Supp. 321, 1992 U.S. Dist. LEXIS 11555 (E.D. Va. 1992).

    Second notice and failure to seek leave to amend first notice. —

    Despite plaintiff ’s failure to seek any leave to amend its June 18 notice of claim, the October 25 notice operated independently to reasonably comply with the requirements of the Virginia Medical Malpractice Act and tolled the running of the statute of limitations; further, the procedural requirements of the act were deemed waived since no timely objection was made. Dolwick v. Leech, 800 F. Supp. 321, 1992 U.S. Dist. LEXIS 11555 (E.D. Va. 1992).

    Former § 8.01-581.9 compensated for this section’s restrictions upon free access to courts. —

    As a result of this section as it read prior to amendment in 1993, a medical malpractice claimant was absolutely forbidden from filing an action until 90 days after notification to the health care provider and then, if a review panel was requested, for the entire period the matter was under review by the panel. In an obvious effort to compensate for these restrictions upon a claimant’s usual free access to the courts and to provide relief from an otherwise harsh application of the statute of limitations, the General Assembly enacted former § 8.01-581.9 , providing for tolling of the statute of limitations upon the giving of notice of a claim, etc. Baker v. Zirkle, 226 Va. 7 , 307 S.E.2d 234, 1983 Va. LEXIS 263 (1983); Dye v. Staley, 226 Va. 15 , 307 S.E.2d 237, 1983 Va. LEXIS 264 (1983).

    Prohibition against filing suit prior to 90 days after notice. —

    The prohibition contained in this section prior to its amendment in 1993 against filing suit prior to 90 days after giving notice of a medical malpractice claim was a mandatory procedural requirement; failure to comply with this provision did not divest the court of subject matter jurisdiction. Morrison v. Bestler, 239 Va. 166 , 387 S.E.2d 753, 6 Va. Law Rep. 1125, 1990 Va. LEXIS 12 (1990).

    The Medical Malpractice Act itself gave plaintiff fair notice affecting the right to file suit, where under this section as it read prior to amendment in 1993 the notice of claim foreclosed that right for 90 days, but the running of the two-year statute of limitations, which otherwise would have expired, was suspended for 120 days with 10 days of the two-year period remaining. Thus, plaintiff was on notice that the act authorized suit to be filed any time after the 90-day period expired and before the running of the limitations period. Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318, 1986 Va. LEXIS 184 (1986).

    Effect on substantive rights. —

    Where plaintiff could have filed a motion for judgment instead of a notice of claim in a timely manner, pursuant to the 1993 amendment to this section, her substantive right to seek damages for the alleged medical malpractice was not materially curtailed. Harris v. DiMattina, 250 Va. 306 , 462 S.E.2d 338, 12 Va. Law Rep. 200, 1995 Va. LEXIS 102 (1995).

    Where the tolling provisions of former Code § 8.01-581.9 provided necessary statutory relief from the running of the statute of limitations, since this section as it read prior to 1993 amendment prohibited plaintiffs from filing a motion for judgment until 90 days after they had given notice of claim, and after the review panel process had been completed, delays imposed by the statute when plaintiff filed his notice of claim and refrained from filing suit, would result in a miscarriage of justice if he was denied benefit of the tolling provisions. Harris v. DiMattina, 250 Va. 306 , 462 S.E.2d 338, 12 Va. Law Rep. 200, 1995 Va. LEXIS 102 (1995).

    Sanction for noncompliance with prohibition. —

    The proper sanction for noncompliance with the provision in this section as it read prior to amendment in 1993, prohibiting filing suit prior to 90 days after giving notice, would depend on the circumstances of each case; other courts which have considered the issue have seen fit to dismiss the suit without prejudice, stay the proceedings, or abate the proceedings. Morrison v. Bestler, 239 Va. 166 , 387 S.E.2d 753, 6 Va. Law Rep. 1125, 1990 Va. LEXIS 12 (1990).

    Sovereign immunity not extended to faculty members of medical school. —

    In an action to recover damages for personal injuries resulting from alleged negligent acts of defendant doctors, the defendants, who were fully licensed to practice medicine, and were full-time members of the faculty of the Medical School of the University of Virginia and attending staff physicians of the University of Virginia Hospital, were not entitled to invoke the doctrine of sovereign immunity. James v. Jane, 267 S.E.2d 108 (Va. 1980).

    § 8.01-581.2:1. Additional parties.

    The judge of the circuit court hearing the case may grant leave to amend the request for a review panel to add additional parties or causes of action in furtherance of the ends of justice except where (i) the request for leave to amend is made less than ten days before the date set for the review panel to convene or for the hearing or (ii) the judge finds that the request for leave to amend is without merit. If leave to amend is granted, the judge may, upon motion of either party, stay the review panel proceedings or continue the trial, extend the time for completion of discovery, filing of pleadings and other procedural limitations periods, or enter such other orders as are appropriate to avoid prejudice to the parties and to avoid unnecessary delay and duplication in the proceedings.

    The statute of limitations as to any party added shall be tolled from the date of the request until completion of the panel proceedings. Leave to add additional parties to the review panel proceeding shall not be granted if the judge finds that the applicable statute of limitations has expired with respect to the new or additional parties or causes of action.

    History. 1986, c. 227; 1993, c. 928.

    Law Review.

    For survey on medical malpractice in Virginia for 1989, see 23 U. Rich. L. Rev. 731 (1989).

    CASE NOTES

    Reasonable compliance required for defective notice. —

    When faced with an allegedly defective notice of claim, as opposed to the failure to file any such notice, reasonable compliance with the notice requirements is all that is mandated. Dolwick v. Leech, 800 F. Supp. 321, 1992 U.S. Dist. LEXIS 11555 (E.D. Va. 1992).

    Second notice and failure to seek leave to amend first notice. —

    Despite plaintiff ’s failure to seek any leave to amend its June 18 notice of claim, the October 25 notice operated independently to reasonably comply with the requirements of the Virginia Medical Malpractice Act and tolled the running of the statute of limitations; further, the procedural requirements of the act were deemed waived since no timely objection was made. Dolwick v. Leech, 800 F. Supp. 321, 1992 U.S. Dist. LEXIS 11555 (E.D. Va. 1992).

    CIRCUIT COURT OPINIONS

    Reasonable compliance. —

    Function of the written notice provision in § 8.01-581.2:1 is not only to place a health care provider on notice that a specific claim is being made, but also to allow the health care provider the opportunity to investigate the basis of the claim and to preserve evidence. Importantly, when faced with an allegedly defective notice of claim, reasonable compliance with the notice requirement is all that is mandated. AMEC Civil, L.L.C. v. Commonwealth, 74 Va. Cir. 492, 2008 Va. Cir. LEXIS 64 (Norfolk Feb. 12, 2008).

    § 8.01-581.3. Composition, selection, etc., of panel.

    The medical review panel shall consist of (i) two impartial attorneys and two impartial health care providers, licensed and actively practicing their professions in the Commonwealth and (ii) the judge of a circuit court in which the action was filed, who shall preside over the panel. The judge shall have no vote and need not attend or participate in the deliberations. The medical review panel shall be selected by the Supreme Court from a list of health care providers submitted by the Board of Medicine and a list of attorneys submitted by the Virginia State Bar. In the selection of the health care provider members, the Court shall give due regard to the nature of the claim and the nature of the practice of the health care provider.

    History. Code 1950, § 8-913; 1976, c. 611; 1977, cc. 202, 617; 1983, c. 208; 1984, c. 777; 1986, c. 227; 1993, c. 928; 1994, c. 384.

    Editor’s note.

    Acts 1977, c. 202, amended former § 8-913, corresponding to this section. This section, as enacted by Acts 1977, c. 617, already incorporated the changes made in former § 8-913 by the amendment, and therefore no change was made in the wording of this section pursuant to the amendment.

    Law Review.

    For article discussing possibly unconstitutional usurpation of judicial power by the legislature, see 11 U. Rich. L. Rev. 51 (1976).

    For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

    For article, “Medical Malpractice Review Panels in Operation in Virginia,” see 19 U. Rich. L. Rev. 273 (1985).

    For comment, “Scope of Permissible Pretrial Discovery of Medical Malpractice Review Panel Deliberations in Virginia: Klarfeld v. Salsbury,” see 10 G.M.U. L. Rev. 577 (1988).

    For survey on medical malpractice in Virginia for 1989, see 23 U. Rich. L. Rev. 731 (1989).

    CASE NOTES

    Application of notice and panel review provisions in federal court. —

    The notice requirement set forth in § 8.01-581.2 and the provision for panel review set forth in this section at the instance of either party to a medical malpractice action are so intimately bound up with the rights and obligations being asserted as to require their application in federal courts under the doctrine of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). DiAntonio v. Northampton-Accomack Mem. Hosp., 628 F.2d 287, 1980 U.S. App. LEXIS 14551 (4th Cir. 1980).

    Review provisions not applicable to action commenced in federal court. —

    Even if federal courts are required to apply the provisions of the Virginia Medical Malpractice Act under the Erie doctrine, the malpractice review provisions otherwise available to a defendant in state court litigation are not available when the action is commenced in federal court. Adkins v. Commonwealth ex rel. UVA Medical Ctr., 154 F.R.D. 139, 1994 U.S. Dist. LEXIS 3916 (W.D. Va. 1994).

    Panel members as experts. —

    Supreme Court of Virginia finds nothing in the statutory scheme respecting a panel’s procedures that gives either party the right to retain an impartial panel member as an expert, and the impartiality required by this section must remain through the conclusion of the trial, and impartiality would become an impossibility if either party were permitted to retain panel members as experts because no potential panel member would be without any anticipation concerning future consultation regarding the claimant or his family; thus, the trial court erred in permitting panel members to testify as retained experts. Chandler v. Graffeo, 268 Va. 673 , 604 S.E.2d 1, 2004 Va. LEXIS 151 (2004).

    Decision of chairman of medical malpractice panel was a judicial act. —

    Although decision of judge who was appointed chairman of medical malpractice panel to impose sanctions was subject to later judicial consideration, it was nonetheless a judicial act that could not be enjoined. Power v. Kendrick, 247 Va. 59 , 439 S.E.2d 345, 10 Va. Law Rep. 727, 1994 Va. LEXIS 3 (1994).

    § 8.01-581.3:1. Completion of discovery; hearing date; notification to parties and panel members; oath of panel members.

    At the time that the panel is designated, the Supreme Court shall advise the clerk of the circuit court in which the matter was filed of the names of the panel members.

    Except for good cause shown, the date for completion of discovery shall not be set beyond 120 days from the date on which the panel was requested. Within the period set for the taking of discovery and upon consultation with the panel members, the judge shall notify the parties of the date set for a hearing by the review panel, if any, or the date on which the panel will convene. Such date shall not be set sooner than ten days after the date for completion of discovery. Upon completion of discovery, the clerk of the circuit court shall notify the parties of the name, address and professional practice of each panel member and shall also notify the panel members, in writing, of their appointment.

    The written notification to the panel members shall include the definitions of “impartial attorney” and “impartial health care provider” as contained in § 8.01-581.1 and a copy of the oath to which the panel members will be required to subscribe when the panel convenes. The oath shall be as follows:

    “I do solemnly swear (or affirm) that I have no past or present relationship with the parties nor am I aware of anything that would prevent me from being impartial in my deliberations. I further swear (or affirm) that I will render an opinion faithfully and fairly on the basis of the evidence presented, applying any professional expertise I may have, giving due regard to the nature of the claim and the nature of the practice of the health care provider.” A panel member who, for any reason, could not take the oath of impartiality shall promptly notify the judge presiding over the panel, in writing, of such inability. The judge shall notify the Supreme Court, which shall then select and notify another panel member in place of and practicing the same profession as the disqualified member.

    History. 1986, c. 227; 1993, c. 928.

    Law Review.

    For comment, “Scope of Permissible Pretrial Discovery of Medical Malpractice Review Panel Deliberations in Virginia: Klarfeld v. Salsbury,” see 10 G.M.U. L. Rev. 577 (1988).

    § 8.01-581.4. Submission of evidence to panel; depositions and discovery; duties of chairman; access to material.

    The evidence to be considered by the medical review panel shall be promptly submitted by the respective parties, upon appointment of the panel, to each member of the panel in written form. Either party, upon request, shall be granted a hearing before the panel. The evidence may consist of medical charts, X-rays, laboratory tests, excerpts of treatises, and depositions of witnesses, including parties, and, when a hearing is held, oral testimony before the panel. The parties shall submit to the panel members only those portions of deposition transcripts, medical records, treatises and other documents which are relevant to the claim. However, upon request of the judge, a party shall produce all or part of any such document submitted. At the discretion of the judge, additional depositions of parties and witnesses may be taken, or other additional discovery may be had, at any time prior to hearing by any party. The judge shall rule on the admissibility of all or any part of a deposition offered as evidence at the hearing. Either party may have discovery pursuant to procedures set out in Part Four of the Rules of the Supreme Court of Virginia prior to appointment of the panel or thereafter in the discretion of the judge.

    Process shall be returnable to the office of the clerk where the action was filed and shall issue under the style of the case as filed. Process for discovery shall issue upon application to the clerk. Any such discovery and any depositions taken for purposes of discovery or otherwise, under this section, may be used in the action filed for any purpose otherwise proper under Part Four of the Rules of Court. The judge of the panel shall advise the panel relative to any legal question involved in the review proceeding and shall prepare the opinion of the panel as provided in § 8.01-581.7 . All parties shall have full access to any material submitted to the panel.

    History. Code 1950, § 8-914; 1976, c. 611; 1977, c. 617; 1979, c. 261; 1984, c. 777; 1986, c. 227; 1993, c. 928.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1978-1979, see 66 Va. L. Rev. 343 (1980).

    For article, “Medical Malpractice Review Panels in Operation in Virginia,” see 19 U. Rich. L. Rev. 273 (1985).

    For comment, “Scope of Permissible Pretrial Discovery of Medical Malpractice Review Panel Deliberations in Virginia: Klarfeld v. Salsbury,” see 10 G.M.U. L. Rev. 577 (1988).

    § 8.01-581.4:1. Assembly of record.

    Upon conclusion of deliberations and rendering of an opinion by the panel, all documentary evidence submitted to the panel, a transcript of the ore tenus hearing, if any, and a copy of the written opinion of the panel shall be filed in the office of the clerk. The record shall be maintained until the action is completed in the circuit court. Upon completion of the action, the clerk of the trial court shall include a copy of the panel record along with the record of the case.

    History. 1986, c. 227; 1993, c. 928.

    § 8.01-581.4:2. Removal of record for inspection and copying; notice.

    Any party may, upon notice to all other parties or their counsel, remove any book, record or document which has been filed with the clerk or has become a part of the permanent record filed with the Executive Secretary for purposes of inspection and copying. The party removing the documents shall give an appropriate receipt to the clerk or Executive Secretary and shall be responsible for the return of the materials within ten days.

    History. 1986, c. 227.

    § 8.01-581.5. When hearing to be held; notice to parties.

    The plaintiff or defendant may request the medical review panel to hold a hearing on any claim referred to the medical review panel, in which case the medical review panel shall conduct a hearing thereon in accordance with § 8.01-581.6 after notice to the parties by means adequate to ensure their presence at the time and place of the hearing.

    History. Code 1950, § 8-915; 1976, c. 611; 1977, c. 617; 1979, c. 261; 1984, c. 777; 1993, c. 928.

    § 8.01-581.6. Conduct of proceedings.

    In the conduct of its proceedings:

    1. The testimony of the witnesses shall be given under oath. Members of the medical review panel, once sworn, shall have the power to administer oaths.
    2. In the event a hearing is held, the parties are entitled to be heard, to present relevant evidence, and to cross-examine witnesses to the extent necessary to enable the panel to render an opinion as specified in § 8.01-581.7 . The rules of evidence need not be observed. The medical review panel may proceed with the hearing and shall render an opinion upon the evidence produced, notwithstanding the failure of a party duly notified to appear.
    3. The medical review panel may issue or cause to be issued, on its own motion or on application of any party, subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence. Subpoenas so issued shall be served and, upon application by a party or the panel to a court of proper venue having jurisdiction over a motion for judgment based on such claim, enforced in the manner provided for the service and enforcement of subpoenas in a civil action. All provisions of law compelling a person under subpoena to testify are applicable.
    4. [Repealed.]
    5. The hearing shall be conducted by all members of the medical review panel unless the parties otherwise agree. A majority of the members present may determine any question and may render an opinion.
    6. The medical review panel members may apply their expertise in evaluating the evidence giving due regard to the nature of the claim and the nature of the practice of the health care provider, whether expert medical opinions are presented by the parties or not.

    History. Code 1950, § 8-916; 1976, c. 611; 1977, c. 617; 1979, c. 261; 1984, c. 777; 1986, c. 227.

    Law Review.

    For note, “Medical Malpractice Arbitration: A Comparative Analysis,” see 62 Va. L. Rev. 1285 (1976).

    For survey of Virginia insurance law for the year 1975-1976, see 62 Va. L. Rev. 1446 (1976).

    For article, “Medical Malpractice Review Panels in Operation in Virginia,” see 19 U. Rich. L. Rev. 273 (1985).

    For comment, “Scope of Permissible Pretrial Discovery of Medical Malpractice Review Panel Deliberations in Virginia: Klarfeld v. Salsbury,” see 10 G.M.U. L. Rev. 577 (1988).

    § 8.01-581.7. Opinion of panel.

    1. Within thirty days, after receiving all the evidence, the panel shall have the duty, after joint deliberation, to render one or more of the following opinions:
      1. The evidence does not support a conclusion that the health care provider failed to comply with the appropriate standard of care;
      2. The evidence supports a conclusion that the health care provider failed to comply with the appropriate standard of care and that such failure is a proximate cause in the alleged damages;
      3. The evidence supports a conclusion that the health care provider failed to comply with the appropriate standard of care and that such failure is not a proximate cause in the alleged damages; or
      4. The evidence indicates that there is a material issue of fact, not requiring an expert opinion, bearing on liability for consideration by a court or jury.
    2. If the review panel’s finding is that set forth in subdivision 2 of subsection A of this section, the panel may determine whether the plaintiff suffered any disability or impairment and the degree and extent thereof.
    3. The opinion shall be in writing and shall be signed by all panelists who agree therewith. Any member of the panel may note his dissent.  All such opinions shall be filed with the clerk of the court in which the action is pending and mailed to the plaintiff and the defendant within five days of the date of their rendering.  However, this subsection shall not be construed to preclude the panel from announcing the opinion in the presence of the parties or their counsel, provided a signed written opinion is subsequently mailed as provided in this subsection.

    History. Code 1950, § 8-917; 1976, c. 611; 1977, c. 617; 1986, c. 227; 1993, c. 928.

    Law Review.

    For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

    For article, “Medical Malpractice Review Panels in Operation in Virginia,” see 19 U. Rich. L. Rev. 273 (1985).

    For comment, “Scope of Permissible Pretrial Discovery of Medical Malpractice Review Panel Deliberations in Virginia: Klarfeld v. Salsbury,” see 10 G.M.U. L. Rev. 577 (1988).

    CASE NOTES

    Written opinion of review panel not sufficient as expert testimony. —

    Expert testimony is ordinarily required in malpractice cases on (1) the standard of care, (2) a deviation from the standard, and (3) causation. The written opinion of the medical malpractice review panel is not in itself sufficient to fulfill those requirements. Raines v. Lutz, 231 Va. 110 , 341 S.E.2d 194, 1986 Va. LEXIS 171 (1986).

    § 8.01-581.7:1. Limitation on panel opinion.

    Unless the parties otherwise agree, any opinion of the panel shall be rendered no later than six months from the designation of the panel unless the judge shall extend the period one time, not to exceed ninety days, upon a showing of extraordinary circumstances. If the opinion of the panel is not rendered within the time provided, any panel opinion rendered subsequently shall be inadmissible as evidence unless the failure of the panel to render a decision within the time provided was caused by delay on the plaintiff’s part.

    History. 1981, c. 327; 1993, c. 928.

    Law Review.

    For article, “Medical Malpractice Review Panels in Operation in Virginia,” see 19 U. Rich. L. Rev. 273 (1985).

    CASE NOTES

    Panel opinion admitted in error. —

    Trial court erred in admitting into evidence the opinion of a state medical review panel when the panel’s decision was rendered beyond the time frame set forth in § 8.01-581.7:1 ; nothing supported the trial court’s finding that extraordinary circumstances existed to justify setting the panel hearing beyond the statutory six-month period when, at the time of the extension, nearly three months of the period remained, and the trial court did not explain why the hearing could not have been conducted within the six-month period. Chandler v. Graffeo, 268 Va. 673 , 604 S.E.2d 1, 2004 Va. LEXIS 151 (2004).

    § 8.01-581.8. Admissibility of opinion as evidence; appearance of panel members as witnesses; immunity from civil liability.

    An opinion of the medical review panel shall be admissible as evidence in the action brought by the plaintiff, but shall not be conclusive. Either party shall have the right to call, at his cost, any member of the panel, except the judge, as a witness. If called, each witness shall be required to appear and testify. The panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this chapter.

    History. Code 1950, § 8-918; 1976, c. 611; 1977, c. 617; 1978, c. 406; 1993, c. 928.

    Law Review.

    For a discussion of various problems relating to the admissibility into evidence of the opinion of the panel, see 11 U. Rich. L. Rev. 51 (1976).

    For survey of Virginia law on evidence for the year 1977-1978, see 64 Va. L. Rev. 1451 (1978).

    For article, “Medical Malpractice Review Panels in Operation in Virginia,” see 19 U. Rich. L. Rev. 273 (1985).

    For comment, “Scope of Permissible Pretrial Discovery of Medical Malpractice Review Panel Deliberations in Virginia: Klarfeld v. Salsbury,” see 10 G.M.U. L. Rev. 577 (1988).

    Michie’s Jurisprudence.

    For related discussion, see 7B M.J. Evidence, §§ 172, 286.

    CASE NOTES

    Constitutionality. —

    The Virginia Medical Malpractice Act does not violate Va. Const., Art. IV, § 14, vesting the judicial power in the Supreme Court and other courts established by the General Assembly, since the essence of judicial power is the final authority to render and enforce a judgment, and the medical malpractice review panel’s opinion is binding upon no one. DiAntonio v. Northampton-Accomack Mem. Hosp., 628 F.2d 287, 1980 U.S. App. LEXIS 14551 (4th Cir. 1980).

    The admitting of the opinions of the medical review board into evidence is not an unconstitutional infringement on plaintiff ’s right to a jury trial as guaranteed by Va. Const., Art. I, § 11. Speet v. Bacaj, 237 Va. 290 , 377 S.E.2d 397, 5 Va. Law Rep. 1824, 1989 Va. LEXIS 41 (1989).

    Panel’s opinion is item of evidence. —

    Unlike a jury’s verdict, a malpractice panel’s decision is only an opinion that becomes an item of evidence at the trial but is not conclusive. And such item of evidence should be subject to scrutiny, just as any other piece of evidence, in order to test its probative value and credibility. Klarfeld v. Salsbury, 233 Va. 277 , 355 S.E.2d 319, 3 Va. Law Rep. 2370, 1987 Va. LEXIS 195 (1987).

    Written opinion of review panel not sufficient as expert testimony. —

    Expert testimony is ordinarily required in malpractice cases on (1) the standard of care, (2) a deviation from the standard, and (3) causation. The written opinion of the medical malpractice review panel is not in itself sufficient to fulfill those requirements. Raines v. Lutz, 231 Va. 110 , 341 S.E.2d 194, 1986 Va. LEXIS 171 (1986).

    The General Assembly, in enacting the medical malpractice laws, did not decide to make the review panel’s opinion a sufficient substitute for expert testimony, or indeed, conclusive upon the jury. Raines v. Lutz, 231 Va. 110 , 341 S.E.2d 194, 1986 Va. LEXIS 171 (1986).

    Applicability in diversity cases. —

    The provision for admission into evidence of the panel opinion set forth in this section is intimately related to Virginia’s alteration of the substantive cause of action and it is intimately related to Virginia’s strong policy of encouraging and promoting pretrial mediation, and because it enforces and implements those interests, the admission provision is applicable in diversity cases. DiAntonio v. Northampton-Accomack Mem. Hosp., 628 F.2d 287, 1980 U.S. App. LEXIS 14551 (4th Cir. 1980).

    Scope of pretrial questioning of panel member. —

    A party during pretrial deposition should be permitted to ask a panelist any question designed to test the probative value or credibility of the panel’s opinion. Klarfeld v. Salsbury, 233 Va. 277 , 355 S.E.2d 319, 3 Va. Law Rep. 2370, 1987 Va. LEXIS 195 (1987).

    A panelist may be questioned during discovery about, for example, the procedures followed by the panel in executive session, the testimonial and documentary evidence considered, the extent of deliberation, the professional qualifications of the deponent with reference to the issues involved in the claim, the reasoning employed by the deponent and the basis for his conclusion reached during deliberations, whether there were preliminary votes prior to the final vote, and the voting tally at each stage of deliberations. Klarfeld v. Salsbury, 233 Va. 277 , 355 S.E.2d 319, 3 Va. Law Rep. 2370, 1987 Va. LEXIS 195 (1987).

    Excluding interrogation about panel’s deliberations was error. —

    The trial court erred in limiting the scope of the plaintiffs’ questioning of a physician panel member pre-trial by excluding interrogation about the panel’s deliberative process. Klarfeld v. Salsbury, 233 Va. 277 , 355 S.E.2d 319, 3 Va. Law Rep. 2370, 1987 Va. LEXIS 195 (1987).

    Report by private hospital not “state action.” —

    A private hospital’s action, pursuant to former § 54-325.1 (now see § 54.1-2400.6) and this section, in reporting the revocation of a physician’s clinical staff privileges to Commonwealth medical licensing authorities in no way constitutes “state action” for purposes of the Fourteenth Amendment to the United States Constitution.Modaber v. Culpeper Mem. Hosp., 674 F.2d 1023, 1982 U.S. App. LEXIS 20708 (4th Cir. 1982).

    § 8.01-581.9. Repealed by Acts 1993, c. 928.

    § 8.01-581.10. Per diem and expenses of panel.

    Each member of the medical review panel shall be reimbursed for his actual and necessary expenses and shall be paid at a rate of fifty dollars per diem for work performed as a member of the panel exclusive of time involved if called as a witness to testify in court. Per diem and expenses of the panel shall be borne by the parties in such proportions as may be determined by the chairman in his discretion.

    History. Code 1950, § 8-920; 1976, c. 611; 1977, c. 617; 1984, c. 777.

    § 8.01-581.11. Rules and regulations.

    The Chief Justice of the Supreme Court of Virginia shall promulgate all necessary rules and regulations to carry out the provisions of this chapter.

    History. Code 1950, § 8-921; 1976, c. 611; 1977, c. 617.

    Cross references.

    For the Medical Malpractice Rules of Practice, see Volume 11 of the Code of Virginia.

    Law Review.

    For comment, “Scope of Permissible Pretrial Discovery of Medical Malpractice Review Panel Deliberations in Virginia: Klarfeld v. Salsbury,” see 10 G.M.U. L. Rev. 577 (1988).

    CASE NOTES

    Treatment of Filing Procedure in Medical Malpractice Rules. —

    The provisions of Rule Two(c) (see now Rule 26) of the Medical Malpractice Rules, stating that the request for a panel shall be deemed to be filed when delivered or mailed by registered or certified mail, do not conflict with the provisions of the Medical Malpractice Act, in violation of Va. Const., Art. VII, § 5. The authors of the act expressly empowered the Chief Justice to promulgate rules necessary to carry out its provisions. Rule Two(c) (see now Rule 2(a) merely particularizes the mechanics of the filing requirements of § 8.01-581.2 and former § 8.01-581.9 . Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318, 1986 Va. LEXIS 184 (1986).

    § 8.01-581.11:1. Objections not waived by participation.

    Participation in any medical malpractice review panel proceeding pursuant to this article shall not constitute a waiver by a party to the proceedings of any objections to the review panel procedure.

    History. 1986, c. 227.

    § 8.01-581.12. Arbitration of medical malpractice claims.

    1. Persons desiring to enter into an agreement to arbitrate medical malpractice claims which have then arisen or may thereafter arise may submit such matters to arbitration under the provisions of Chapter 21 (§ 8.01-577 et seq.) of this title and an agreement to submit such matters shall be binding upon the parties if the patient or claimant or his guardian, conservator, committee or personal representative is allowed by the terms of the agreement to withdraw therefrom, and to decline to submit any matter then or thereafter in controversy, within a period of at least sixty days after the termination of health care or, if the patient is under disability by reason of age and at the time of termination without a guardian who could take such action for him, or if he is incapacitated and without a guardian or conservator who could take such action for him, or if such termination is by death or if death occurs within sixty days after termination, then within a period of at least sixty days after the appointment and qualification of the guardian, conservator or committee or personal representative.
    2. Proof of agreement to arbitrate and submission of a medical malpractice claim pursuant thereto shall be in accordance with Chapter 21 of this title, and a medical malpractice panel appointed under this article may be designated to arbitrate the matter, either by the arbitration agreement or by the parties to the agreement.
    3. An insurer of a health care provider shall be bound by the award of an arbitration panel or arbitrators acting pursuant to a good faith submission hereunder to the extent to which it would have been obligated by a judgment entered in an action at law with respect to the matter submitted; provided, that such insurer has agreed prior to the submission to be bound by the award of such arbitration panel or arbitrators.

    History. Code 1950, § 8-922; 1976, c. 611; 1977, c. 617; 1997, c. 801.

    Editor’s note.

    Acts 1997, c. 801, cl. 2, provides: “That the provisions of this act shall become effective on January 1, 1998. The powers granted and duties imposed pursuant to this act shall apply prospectively to guardians and conservators appointed by court order entered on or after that date, or modified on or after that date if the court so directs, without regard to when the petition was filed. The procedures specified in this act governing proceedings for appointment of a guardian or conservator or termination or other modification of a guardianship shall apply on and after that date without regard to when the petition therefor was filed or the guardianship or conservatorship created.”

    Law Review.

    For survey of Virginia insurance law for the year 1975-1976, see 62 Va. L. Rev. 1446 (1976).

    For article surveying developments in health care law in Virginia, see 37 U. Rich. L. Rev. 199 (2002).

    CIRCUIT COURT OPINIONS

    Relationship to Federal Arbitration Act. —

    In accordance with holdings of the United States Supreme Court, § 8.01-581.12 , is displaced and preempted by the Federal Arbitration Act. Culler v. Johnson, 98 Va. Cir. 470, 2014 Va. Cir. LEXIS 385 (Roanoke Nov. 21, 2014).

    § 8.01-581.12:1. Repealed by Acts 1979, c. 325.

    Cross references.

    For a new section relating to similar subject matter, see § 8.01-581.20 .

    § 8.01-581.12:2. Article not applicable to actions arising prior to July 1, 1976.

    1. The provisions of this article shall not apply to any cause of action which arose prior to July 1, 1976, and as to which the statute of limitations had not run prior to that date, regardless of the date any suit brought thereon is filed. Notwithstanding the foregoing, in actions which accrued prior to July 1, 1976, if a claimant has filed notice under § 8.01-581.2 of this article, his cause of action and any defense thereto shall be governed by this article.
    2. The term “has filed,” as used in this section, is deemed to include the filing of notice under § 8.01-581.2 (or under repealed § 8-912) of this article where such filing occurred prior to the expiration of any applicable statute of limitation when the cause of action arose prior to July 1, 1976. This subsection (b) shall be applied retroactively to such causes of action.

    History. Code 1950, § 8-924; 1977, c. 422; 1978, c. 262.

    The number of this section was assigned by the Virginia Code Commission, the number in the 1977 act having been 8-923.

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Physicians and Surgeons, § 15.

    CASE NOTES

    This section was intended to have retrospective effect. Fletcher v. Tarasidis, 219 Va. 658 , 250 S.E.2d 739, 1979 Va. LEXIS 155 (1979).

    This section is purely procedural and by its very wording clearly implies a legislative intent that it be applied retroactively. Chapman v. Edgerton, 529 F. Supp. 519, 1982 U.S. Dist. LEXIS 11321 (W.D. Va. 1982).

    Even as to judgments entered before its enactment. —

    Where a patient’s medical malpractice action accrued prior to the effective date of this article, and the statute of limitations had not run against his action on that date, this section would apply so as to render the article inapplicable. This is so, even though at the time judgment was entered by the trial court, the exemption statute had not been enacted, and the judgment was correct when entered. Fletcher v. Tarasidis, 219 Va. 658 , 250 S.E.2d 739, 1979 Va. LEXIS 155 (1979).

    Notice given after effective date of section. —

    By giving notice under § 8.01-581.2 subsequent to March 25, 1977, the effective date of this section, but prior to the expiration of the two-year statute of limitations, plaintiffs invoked § 8.01-581.9 so as to prevent the claims from being time-barred. Armstrong v. Erasmo, 220 Va. 883 , 263 S.E.2d 655, 1980 Va. LEXIS 180 (1980).

    Article 2. Miscellaneous Provisions.

    § 8.01-581.13. Civil immunity for certain health professionals and health profession students serving as members of certain entities.

    1. For the purposes of this subsection, “health professional” means any clinical psychologist, applied psychologist, school psychologist, dentist, certified emergency medical services provider, licensed professional counselor, licensed substance abuse treatment practitioner, certified substance abuse counselor, certified substance abuse counseling assistant, licensed marriage and family therapist, nurse, optometrist, pharmacist, physician, chiropractor, podiatrist, or veterinarian who is actively engaged in the practice of his profession or any member of the Health Practitioners’ Monitoring Program Committee pursuant to Chapter 25.1 (§ 54.1-2515 et seq.) of Title 54.1.Unless such act, decision, or omission resulted from such health professional’s bad faith or malicious intent, any health professional, as defined in this subsection, shall be immune from civil liability for any act, decision or omission resulting from his duties as a member or agent of any entity which functions primarily (i) to investigate any complaint that a physical or mental impairment, including alcoholism or drug addiction, has impaired the ability of any such health professional to practice his profession and (ii) to encourage, recommend and arrange for a course of treatment or intervention, if deemed appropriate, or (iii) to review or monitor the duration of patient stays in health facilities, delivery of professional services, or the quality of care delivered in the statewide emergency medical services system for the purpose of promoting the most efficient use of available health facilities and services, the adequacy and quality of professional services, or the reasonableness or appropriateness of charges made by or on behalf of such health professionals. Such entity shall have been established pursuant to a federal or state law, or by one or more public or licensed private hospitals, or a relevant health professional society, academy or association affiliated with the American Medical Association, the American Dental Association, the American Pharmaceutical Association, the American Psychological Association, the American Podiatric Medical Association, the American Society of Hospitals and Pharmacies, the American Veterinary Medical Association, the American Association for Counseling and Development, the American Optometric Association, International Chiropractic Association, the American Chiropractic Association, the NAADAC: the Association for Addiction Professionals, the American Association for Marriage and Family Therapy or a governmental agency.
    2. For the purposes of this subsection, “health profession student” means a student in good standing who is enrolled in an accredited school, program, or curriculum in clinical psychology, counseling, dentistry, medicine, nursing, pharmacy, chiropractic, marriage and family therapy, substance abuse treatment, or veterinary medicine and has received training relating to substance abuse.Unless such act, decision, or omission resulted from such health profession student’s bad faith or malicious intent, any health profession student, as defined in this subsection, shall be immune from civil liability for any act, decision, or omission resulting from his duties as a member of an entity established by the institution of higher education in which he is enrolled or a professional student’s organization affiliated with such institution which functions primarily (i) to investigate any complaint of a physical or mental impairment, including alcoholism or drug addiction, of any health profession student and (ii) to encourage, recommend, and arrange for a course of treatment, if deemed appropriate.
    3. The immunity provided hereunder shall not extend to any person with respect to actions, decisions or omissions, liability for which is limited under the provisions of the federal Social Security Act or amendments thereto.

    History. Code 1950, § 8-654.6; 1975, c. 418; 1977, c. 617; 1983, c. 567; 1984, c. 494; 1987, c. 713; 1989, c. 729; 1992, c. 590; 1993, c. 702; 1995, c. 636; 1996, cc. 937, 980; 1997, cc. 439, 901; 2001, c. 460; 2006, cc. 412, 638; 2009, c. 472; 2015, cc. 502, 503.

    Cross references.

    As to immunity from civil liability of members of certain groups authorizing, etc., certain programs or research protocols, see § 8.01-44.1 .

    For provisions exempting from liability persons rendering emergency care, see § 8.01-225 .

    As to immunity for team physicians, see § 8.01-225.1 .

    As to immunity for those rendering care to animals, see § 8.01-225.2 .

    For other statutes conferring immunity upon physicians and others in certain cases, see § 54.1-2900 et seq.

    As to exclusion under the Freedom of Information Act for privileged communications, see § 2.2-3705.5.

    Editor’s note.

    Acts 2001, c. 460, cl. 2, as amended by Acts 2002, c. 383, cl. 1, provides: “That, notwithstanding the provisions of this act, the Board shall certify as a certified substance abuse counselor any person who files an application with the Board after July 1, 2001, but before the effective date of the new certification regulations to be promulgated by the Board pursuant to § 54.1-3505 if such person meets the certification requirements for certified substance abuse counselors in effect prior to July 1, 2001.”

    Acts 2001, c. 460, cl. 3, provides: “That, notwithstanding the provisions of this act, the Board shall approve as a supervisor for individuals seeking certifications as a certified substance abuse counselor or a certified substance abuse counseling assistant any individual who has been approved by the Board as a registered supervisor prior to July 1, 2001.”

    The 2001 amendments.

    The 2001 amendment by c. 460, in subsection A, in the first paragraph, deleted “certified substance abuse counselor” preceding “clinical psychologist,” inserted “certified substance abuse counselor, certified substance abuse counseling assistant,” and substituted “NAADAC: the Association for Addiction Professionals” for “National Association of Alcoholism and Drug Abuse Counselors” near the end of the second paragraph.

    The 2006 amendments.

    The 2006 amendment by c. 412, in subsection A, inserted “certified emergency medical services personnel” in the first paragraph and in clause (iii) of the second paragraph, inserted “or monitor” and “or the quality of care delivered in the statewide emergency medical care system” and made a related change.

    The 2006 amendment by c. 638 inserted “licensed” preceding “marriage and family therapist” in the first paragraph of subsection A.

    The 2009 amendments.

    The 2009 amendment by c. 472 substituted “Health Practitioners’ Monitoring Program” for “Intervention Program” in subsection A.

    The 2015 amendments.

    The 2015 amendments by cc. 502 and 503 are identical, and in subsection A, substituted “emergency medical services provider” for “emergency medical services personnel” in the first sentence, and in the second paragraph, substituted “emergency medical services” for “emergency medical care.”

    Law Review.

    For survey of Virginia law on torts for the year 1974-1975, see 61 Va. L. Rev. 1856 (1975).

    For 2006 survey article, “Health Care Law,” see 41 U. Rich. L. Rev. 179 (2006).

    § 8.01-581.14. Repealed by Acts 2003, c. 397.

    § 8.01-581.15. Limitation on recovery in certain medical malpractice actions.

    In any verdict returned against a health care provider in an action for malpractice where the act or acts of malpractice occurred on or after August 1, 1999, which is tried by a jury or in any judgment entered against a health care provider in such an action which is tried without a jury, the total amount recoverable for any injury to, or death of, a patient shall not exceed the following, corresponding amount:

    August 1, 1999, through June 30, 2000 $1.50 million July 1, 2000, through June 30, 2001 $1.55 million July 1, 2001, through June 30, 2002 $1.60 million July 1, 2002, through June 30, 2003 $1.65 million July 1, 2003, through June 30, 2004 $1.70 million July 1, 2004, through June 30, 2005 $1.75 million July 1, 2005, through June 30, 2006 $1.80 million July 1, 2006, through June 30, 2007 $1.85 million July 1, 2007, through June 30, 2008 $1.925 million July 1, 2008, through June 30, 2012 $2.00 million July 1, 2012, through June 30, 2013 $2.05 million July 1, 2013, through June 30, 2014 $2.10 million July 1, 2014, through June 30, 2015 $2.15 million July 1, 2015, through June 30, 2016 $2.20 million July 1, 2016, through June 30, 2017 $2.25 million July 1, 2017, through June 30, 2018 $2.30 million July 1, 2018, through June 30, 2019 $2.35 million July 1, 2019, through June 30, 2020 $2.40 million July 1, 2020, through June 30, 2021 $2.45 million July 1, 2021, through June 30, 2022 $2.50 million July 1, 2022, through June 30, 2023 $2.55 million July 1, 2023, through June 30, 2024 $2.60 million July 1, 2024, through June 30, 2025 $2.65 million July 1, 2025, through June 30, 2026 $2.70 million July 1, 2026, through June 30, 2027 $2.75 million July 1, 2027, through June 30, 2028 $2.80 million July 1, 2028, through June 30, 2029 $2.85 million July 1, 2029, through June 30, 2030 $2.90 million July 1, 2030, through June 30, 2031 $2.95 million

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    In any verdict returned against a health care provider in an action for malpractice where the act or acts of malpractice occurred on or after July 1, 2031, which is tried by a jury or in any judgment entered against a health care provider in such an action which is tried without a jury, the total amount recoverable for any injury to, or death of, a patient shall not exceed $3 million. Each annual increase shall apply to the act or acts of malpractice occurring on or after the effective date of the increase.

    Where the act or acts of malpractice occurred prior to August 1, 1999, the total amount recoverable for any injury to, or death of, a patient shall not exceed the limitation on recovery set forth in this statute as it was in effect when the act or acts of malpractice occurred.

    In interpreting this section, the definitions found in § 8.01-581.1 shall be applicable.

    History. Code 1950, §§ 8-654.8; 1976, c. 611; 1977, c. 617; 1983, c. 496; 1999, c. 711; 2001, c. 211; 2011, cc. 758, 759.

    Editor’s note.

    Acts 2001, c. 211, cl. 2 provides: “That the provisions of this act are declaratory of existing law.”

    The 1999 amendment, effective August 1, 1999, in the first paragraph, substituted “August 1, 1999” for “October 1, 1983,” substituted “$1.5 million” for “one million dollars,” and added the last three sentences.

    The 2001 amendments.

    The 2001 amendment by c. 211 added the next to last paragraph.

    The 2011 amendments.

    The 2011 amendments by cc. 758 and 759 are identical, and in the first paragraph, substituted “the following, corresponding amount:” and the table of recovery limits for “$1.5 million. The maximum recovery limit of $1.5 million shall increase on July 1, 2000, and each July 1 thereafter by $50,000 per year; however, the annual increase on July 1, 2007, and the annual increase on July 1, 2008, shall be $75,000 per year. Each annual increase shall apply to the act or acts of malpractice occurring on or after the effective date of the increase. The July 1, 2008, increase shall be the final annual increase.”; and inserted the second paragraph.

    Law Review.

    For discussion of the constitutional implications of the recovery limit in this section, see 11 U. Rich. L. Rev. 51 (1976).

    For survey of Virginia insurance law for the year 1975-1976, see 62 Va. L. Rev. 1446 (1976).

    For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

    For article on the limitation on recovery in medical negligence cases in Virginia, see 16 U. Rich. L. Rev. 799 (1982).

    For comment, “The Constitutional Attack on Virginia’s Medical Malpractice Cap: Equal Protection and the Right to Jury Trial,” see 22 U. Rich. L. Rev. 95 (1987).

    For comment on Virginia’s Birth-Related Neurological Injury Compensation Act, 22 U. Rich. L. Rev. 431 (1988).

    For note, “Will Tort Reform Combat the Medical Malpractice Insurance Availability and Affordability Problems That Virginia’s Physicians Are Facing,” see 44 Wash. & Lee L. Rev. 1463 (1988).

    For survey on medical malpractice in Virginia for 1989, see 23 U. Rich. L. Rev. 731 (1989).

    For comment, “Interpretations of Virginia’s Medical Malpractice Act: Boyd v. Bulala,” see 12 G.M.U. L. Rev. 361 (1990).

    For an article, “Civil Practice and Procedure,” see 31 U. Rich. L. Rev. 991 (1997).

    For a review of damages in medical malpractice in Virginia, see 33 U. Rich. L. Rev. 919 (1999).

    For a note, “Pulliam v. Coastal Emergency Services of Richmond, Inc.: Reconsidering the Standard of Review and Constitutionality of Virginia’s Medical Malpractice Cap,” see 8 Geo. Mason L. Rev. 587 (2000).

    For article, “The New Federalism Jurisprudence and National Tort Reform,” see 59 Wash. & Lee L. Rev. 475 (2002).

    For annual essay of Virginia Law: “Discovery Divide: Virginia Code Section 8.01-581 ’s Quality Assurance Privilege and Its Protection of Healthcare Provider Policies and Incident Reports,” see 39 U. Rich. L. Rev. 61 (2004).

    For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

    For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

    For article on medical malpractice law for the year 2007-2008, see 43 U. Rich. L. Rev. 227 (2008).

    For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

    For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).

    For annual survey article, “Civil Practice and Procedure,” see 46 U. Rich. L. Rev. 9 (2011).

    For Article, “Why Federal Rule of Evidence 403 is Unconstitutional, and Why it Matters,” see 47 U. Rich. L. Rev. 1077 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 4C M.J. Constitutional Law, §§ 31, 39, 82, 127, 128, 130, 33, 142.

    CASE NOTES

    Editor’s note.

    Some of the cases cited below were decided under corresponding provisions of former law, or under this section prior to later amendments.

    Section not violative of prohibition against special legislation. —

    This section applies to all persons belonging to the class in question without distinction and, therefore, is not special in effect; accordingly, this section does not violate the prohibition against special legislation. Etheridge v. Medical Center Hosps., 237 Va. 87 , 376 S.E.2d 525, 5 Va. Law Rep. 1438, 1989 Va. LEXIS 27 (1989).

    The medical malpractice cap bears a reasonable and substantial relation to the General Assembly’s objective to protect the public’s health, safety and welfare by insuring the availability of health care providers in the Commonwealth; accordingly, the medical malpractice cap does not constitute special legislation. Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1 , 509 S.E.2d 307, 1999 Va. LEXIS 3 (1999).

    This section does not deny the right of trial by jury nor violate the separation of powers, anti-discrimination, and special legislation clauses of the Virginia Constitution. 877 F.2d 1191 (4th Cir. 1989).

    This section does not violate the right of trial by jury under the Seventh Amendment. 877 F.2d 1191 (4th Cir. 1989).

    This section, which limits the amount of recoverable damages in a medical malpractice action, does not infringe upon the right to a jury trial, because the section does not apply until after a jury has completed its assigned function in the judicial process, and because although a party has the right to have a jury assess his damages, he has no right to have a jury dictate through an award the legal consequences of its assessment. Etheridge v. Medical Center Hosps., 237 Va. 87 , 376 S.E.2d 525, 5 Va. Law Rep. 1438, 1989 Va. LEXIS 27 (1989).

    The jury trial guarantee secures no rights other than those that existed at common law and the common law never recognized a right to full recovery in tort. It follows, therefore, that the medical malpractice cap does not impinge upon the right to trial by jury. Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1 , 509 S.E.2d 307, 1999 Va. LEXIS 3 (1999).

    Section not violative of equal protection or due process. —

    Since the medical malpractice cap is clearly a rational means to achieve the legislative goal of securing the provision of health care services by maintaining the availability of malpractice insurance at affordable rates, this section meets the requirements of the equal protection and due process clauses, and must be upheld on those grounds. Boyd v. Bulala, 647 F. Supp. 781, 1986 U.S. Dist. LEXIS 18099 (W.D. Va. 1986), amended, 678 F. Supp. 612, 1988 U.S. Dist. LEXIS 1186 (W.D. Va. 1988), aff'd in part and rev'd in part, 877 F.2d 1191, 1989 U.S. App. LEXIS 8364 (4th Cir. 1989).

    Assertion that this section violates procedural due process by creating an irrebuttable presumption was without merit, because this section creates no presumptions whatsoever regarding the individual merits of a medical malpractice claim, but merely affects the parameters of the remedy available after the merits of a claim have been decided. Etheridge v. Medical Center Hosps., 237 Va. 87 , 376 S.E.2d 525, 5 Va. Law Rep. 1438, 1989 Va. LEXIS 27 (1989).

    The purpose of this section, which limits the amount of recoverable damages in a medical malpractice action — to maintain adequate health care services in this Commonwealth — bears a reasonable relation to the legislative cap, i.e., ensuring that health care providers can obtain affordable medical malpractice insurance; therefore, it does not violate substantive due process. Etheridge v. Medical Center Hosps., 237 Va. 87 , 376 S.E.2d 525, 5 Va. Law Rep. 1438, 1989 Va. LEXIS 27 (1989).

    The classification in this section does not violate the Equal Protection Clause. Etheridge v. Medical Center Hosps., 237 Va. 87 , 376 S.E.2d 525, 5 Va. Law Rep. 1438, 1989 Va. LEXIS 27 (1989).

    This section does not violate the Fourteenth Amendment’s guarantees of due process or equal protection, since the cap on liability bears a reasonable relation to a valid legislative purpose—the maintenance of adequate health care services in the Commonwealth of Virginia. 877 F.2d 1191 (4th Cir. 1989).

    The medical malpractice cap passes the test of constitutionality when judged against the rational basis standard; therefore, plaintiff had suffered no denial of due process or equal protection from application of the cap to the jury verdict. Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1 , 509 S.E.2d 307, 1999 Va. LEXIS 3 (1999).

    The Virginia cap cannot violate federal separation of powers principles for the simple reason that those principles are inapplicable. 877 F.2d 1191 (4th Cir. 1989).

    The medical malpractice cap does not violate the separation of powers doctrine or invade the province of the judiciary. Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1 , 509 S.E.2d 307, 1999 Va. LEXIS 3 (1999).

    Virginia medical malpractice cap legislation clearly does not create suspect classification. Certainly, the law treats victims of medical malpractice differently from the victims of other torts, and within the class of medical malpractice plaintiffs, the law further discriminates between those whose losses exceed the cap and those whose losses do not. Such classifications, while facially unfair, do not violate the equal protection clause according to current interpretation. Boyd v. Bulala, 647 F. Supp. 781, 1986 U.S. Dist. LEXIS 18099 (W.D. Va. 1986), amended, 678 F. Supp. 612, 1988 U.S. Dist. LEXIS 1186 (W.D. Va. 1988), aff'd in part and rev'd in part, 877 F.2d 1191, 1989 U.S. App. LEXIS 8364 (4th Cir. 1989).

    The purpose of this section, to maintain an adequate level of health care services in the Commonwealth by ensuring that health care providers can obtain affordable insurance, is sufficient justification under the Constitution for treating those injured through medical malpractice differently from those injured in other torts. Boyd v. Bulala, 647 F. Supp. 781, 1986 U.S. Dist. LEXIS 18099 (W.D. Va. 1986), amended, 678 F. Supp. 612, 1988 U.S. Dist. LEXIS 1186 (W.D. Va. 1988), aff'd in part and rev'd in part, 877 F.2d 1191, 1989 U.S. App. LEXIS 8364 (4th Cir. 1989).

    The rationality of this section justifies the distinction it draws between medical malpractice plaintiffs whose damages are less than the cap amount, who may be completely compensated for their injuries, and those whose damages exceed the cap, who will not be completely compensated. Boyd v. Bulala, 647 F. Supp. 781, 1986 U.S. Dist. LEXIS 18099 (W.D. Va. 1986), amended, 678 F. Supp. 612, 1988 U.S. Dist. LEXIS 1186 (W.D. Va. 1988), aff'd in part and rev'd in part, 877 F.2d 1191, 1989 U.S. App. LEXIS 8364 (4th Cir. 1989).

    The mandate of this section is that in any judgment entered against a health care provider, the quantum of the recovery for a medical malpractice injury cannot exceed the aggregate amount capable of recovery. Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10, 1995 Va. LEXIS 44 (1995).

    The General Assembly enacted medical malpractice cap for the purpose of enabling licensed health care providers to secure medical malpractice insurance at affordable rates. Schwartz v. Brownlee, 253 Va. 159 , 482 S.E.2d 827, 1997 Va. LEXIS 23 (1997).

    Cap applies to recoveries under the Emergency Medical Treatment and Active Labor Act. —

    The statutory cap of $1,000,000 (now $1,500,000) imposed by this section applies to medical malpractice recoveries under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd. Lee ex rel. Wetzel v. Alleghany Regional Hosp. Corp., 778 F. Supp. 900, 1991 U.S. Dist. LEXIS 16707 (W.D. Va. 1991).

    A patient who recovers $1,000,000 (now $1,500,000) in a negligence suit against one health care provider cannot recover more damages for the same injury from a second, even more culpable health care provider. Plaintiff, having recovered $1,000,000 (now $1,500,000) from the hospital under the Emergency Medical Treatment and Active Labor Act cannot recover further malpractice damages from other parties. Power v. Alexandria Physicians Group, 887 F. Supp. 845, 1995 U.S. Dist. LEXIS 7108 (E.D. Va. 1995), aff'd, 91 F.3d 132, 1996 U.S. App. LEXIS 35139 (4th Cir. 1996).

    The plain meaning of the statute fixes the “total” amount recoverable at the statutory cap. Thus, application of the $750,000 (now $1,500,000) cap serves to extinguish awards of punitive damages on claims which have exhausted the statutory amount. Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670, 6 Va. Law Rep. 1399, 1990 Va. LEXIS 44 (1990) (decided under former § 8-654.8).

    Award in excess of permitted amount would invade province of legislature. —

    Whether the remedy prescribed in this section, which limits the amount of recoverable damages in a medical malpractice action, is viewed as a modification of the common law or as establishing the jurisdiction of the courts in specific cases, it was a proper exercise of legislative power. Indeed, were a court to ignore the legislatively determined remedy and enter an award in excess of the permitted amount, the court would invade the province of the legislature. Etheridge v. Medical Center Hosps., 237 Va. 87 , 376 S.E.2d 525, 5 Va. Law Rep. 1438, 1989 Va. LEXIS 27 (1989).

    This section is a classic example of an economic regulation. —

    A legislative effort to structure and accommodate the burdens and benefits of economic life and as such, it is subject only to limited rational basis review; plaintiffs have the burden of demonstrating that in enacting the cap the Virginia legislature had acted in an arbitrary and irrational way. 877 F.2d 1191 (4th Cir. 1989).

    The statutory cap sets a separate limit on the total damages recoverable for “any injury” to a single “patient,” regardless of the number of claims and claimants and theories of recovery related to that injury. Accordingly, the cap applicable to any single patient’s injury covers both compensatory and punitive damage claims of the patient and any claims by others that, by substantive law, are “derivative” of the patient’s claims. Boyd v. Bulala, 905 F.2d 764, 1990 U.S. App. LEXIS 9498 (4th Cir. 1990).

    Having suffered one indivisible set of injuries all stemming from the same malpractice event, plaintiff was entitled to no more than $1,000,000 (now $1,500,000) under the statute. Power v. Alexandria Physicians Group, 887 F. Supp. 845, 1995 U.S. Dist. LEXIS 7108 (E.D. Va. 1995), aff'd, 91 F.3d 132, 1996 U.S. App. LEXIS 35139 (4th Cir. 1996).

    The statute does not apply a separate $1,000,000 (now $1,500,000) cap to each individual negligent act by health care providers, or to each visit and telephone call between a patient and her doctors. Rather, the statute only allows $1,000,000 (now $1,500,000) per injury, even if the jury arises from several wrongful acts during the course of treatment. Power v. Alexandria Physicians Group, 887 F. Supp. 845, 1995 U.S. Dist. LEXIS 7108 (E.D. Va. 1995), aff'd, 91 F.3d 132, 1996 U.S. App. LEXIS 35139 (4th Cir. 1996).

    Where patient was born with damaged kidneys and cerebral palsy due to complication that arose from an unsuccessful amniocentesis and delivery by caesarean section, the jury returned a $7 million verdict for the patient on her medical malpractice claim against health care providers. The award was reduced to $1.4 million, the amount to which she was entitled under the statutory cap on damages set forth in Virginia’s Medical Malpractice Act. Simpson v. Roberts, 287 Va. 34 , 752 S.E.2d 801, 2014 Va. LEXIS 14 (2014).

    Cap covers both compensatory and punitive damage claims. —

    The malpractice cap applicable to any single patient’s injury covers both compensatory and punitive damage claims of the patient and any claims by others that, by substantive law, are derivative of the patient’s claim. Claims of emotional distress caused by injury to a single patient and claims for medical expenses of a single patient are derivative. Starns v. United States, 923 F.2d 34, 1991 U.S. App. LEXIS 213 (4th Cir.), cert. denied, 502 U.S. 809, 112 S. Ct. 54, 116 L. Ed. 2d 31, 1991 U.S. LEXIS 4613 (1991).

    Damages limited to statutory amount regardless of number of legal theories. —

    In a medical malpractice action, the total damages recoverable for injury to a “patient” are limited to the statutory amount, regardless of the number of legal theories upon which the claims are based. Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670, 6 Va. Law Rep. 1399, 1990 Va. LEXIS 44 (1990).

    This section provides that a single $1,000,000 (now $1,500,000) cap applies to all of a patient’s “malpractice” claims, regardless of the particular theory or body of law on which they are based. Power v. Alexandria Physicians Group, 887 F. Supp. 845, 1995 U.S. Dist. LEXIS 7108 (E.D. Va. 1995), aff'd, 91 F.3d 132, 1996 U.S. App. LEXIS 35139 (4th Cir. 1996).

    Patient cannot avoid cap by characterizing each mistake as separate instance. —

    An injured patient may recover no more than $1,000,000 (now $1,500,000) for injuries arising from one malpractice event. This principle holds whether the patient sues one defendant or many, whether she cites one action or several separate ones, or whether she proceeds under more than one legal theory or cause of action constituting “an action for malpractice” under the statute. Moreover, a patient cannot avoid the $1,000,000 (now $1,500,000) cap by characterizing each of the health care provider’s mistakes that contribute to her injury as a separate instance of malpractice. Power v. Alexandria Physicians Group, 887 F. Supp. 845, 1995 U.S. Dist. LEXIS 7108 (E.D. Va. 1995), aff'd, 91 F.3d 132, 1996 U.S. App. LEXIS 35139 (4th Cir. 1996).

    A parent’s cause of action for medical and incidental expenses is derivative of the child’s action. Lee v. Adrales, 778 F. Supp. 904, 1991 U.S. Dist. LEXIS 16698 (W.D. Va. 1991).

    Child has statutory cap separate from cap on mother’s claims. —

    At the moment of live birth, and until the pediatrician assumes responsibility for the care of the newborn, the infant is the obstetrician’s “patient.” Hence, a separate statutory cap for compensatory damages applies to the child’s case. Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670, 6 Va. Law Rep. 1399, 1990 Va. LEXIS 44 (1990).

    A mother and her newborn child are separate “patients,” and thus, each may recover a maximum of $1,000,000 (now $1,500,000). Lee ex rel. Wetzel v. Alleghany Regional Hosp. Corp., 778 F. Supp. 900, 1991 U.S. Dist. LEXIS 16707 (W.D. Va. 1991).

    Statutory cap on damages set forth in Virginia’s Medical Malpractice Act applied to a patient’s cause of action against health care providers for prenatal care where she was born with serious and permanent injuries, because the definition of “health care” encompassed the medical services provided in utero. Simpson v. Roberts, 287 Va. 34 , 752 S.E.2d 801, 2014 Va. LEXIS 14 (2014).

    The child’s medical expenses must be included in her own damage award. Lee v. Adrales, 778 F. Supp. 904, 1991 U.S. Dist. LEXIS 16698 (W.D. Va. 1991).

    Father’s emotional distress claim was covered by the Medical Malpractice Act where it was wholly derivative of his child’s claim. However, the total damages recoverable for injury to the child, including derivative claims, were limited to the statutory amount. Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670, 6 Va. Law Rep. 1399, 1990 Va. LEXIS 44 (1990).

    Since the damages awarded for the value of the mother’s past services, for lost wages of the father, and for hospital and travel expenses incurred on behalf of the baby are derivative, they must be included within the injured baby’s cap. Starns v. United States, 923 F.2d 34, 1991 U.S. App. LEXIS 213 (4th Cir.), cert. denied, 502 U.S. 809, 112 S. Ct. 54, 116 L. Ed. 2d 31, 1991 U.S. LEXIS 4613 (1991).

    A father seeking damages for emotional harm and medical expenses, resulting from the malpractice to the mother and child, may not recover separately. Lee ex rel. Wetzel v. Alleghany Regional Hosp. Corp., 778 F. Supp. 900, 1991 U.S. Dist. LEXIS 16707 (W.D. Va. 1991).

    The father’s claims for emotional distress and medical expenses are derivative of the child’s, and thus fall within the child’s statutory cap. Lee ex rel. Wetzel v. Alleghany Regional Hosp. Corp., 778 F. Supp. 900, 1991 U.S. Dist. LEXIS 16707 (W.D. Va. 1991).

    Damages limited. —

    Where plaintiff ’s claim was for an indivisible injury, caused by the concurring negligence of each defendant, her damages were limited to a total of $750,000 (now $1,500,000) under this section. Etheridge v. Medical Center Hosps., 237 Va. 87 , 376 S.E.2d 525, 5 Va. Law Rep. 1438, 1989 Va. LEXIS 27 (1989).

    Damages limited to $1,000,000 (now $1,500,000) in death of two babies. —

    Jury award of $2,000,000 based on preterm birth and subsequent loss of two infants because of defendants’ failure to adequately treat preterm labor was reduced to $1,000,000 under this section. Daniel v. Jones, 39 F. Supp. 2d 635, 1999 U.S. Dist. LEXIS 10661 (E.D. Va. 1999), aff'd, 213 F.3d 630, 2000 U.S. App. LEXIS 16528 (4th Cir. 2000).

    Error in credit calculation. —

    Where trial court reduced the $2,000,000 jury verdict rendered against the hospital by $600,000 (the amount of the health care group’s settlement) and then reduced the remainder ($1,400,000) to the medical malpractice cap of $1,000,000 (now $1,500,000), the plain meaning of § 8.01-35.1 and this section, read together, is that where there is a verdict by a jury or a judgment by a court against a health care provider for “injury to . . . a patient” and the total amount recovered in that action and in all settlements related to the medical malpractice injury exceeds $1,000,000 (now $1,500,000), the total amount the plaintiff can recover for that injury is $1,000,000 (now $1,500,000). Accordingly, the trial court erred when it failed to apply the $600,000 credit for the statutory recovery cap in determining the quantum of plaintiff’s judgment. Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10, 1995 Va. LEXIS 44 (1995).

    Award of statutory maximum not abuse of discretion. —

    Award of statutory maximum for mental and physical injuries to mother who gave birth to stillborn child due to defendant’s negligence held not abuse of discretion. Modaber v. Kelley, 233 Va. 60 , 348 S.E.2d 233 (1986).

    Physician’s corporation liable for excess of jury award. —

    Where physician-defendant was also president and sole shareholder in S corporation, which was not licensed as a health care provider, physician was entitled to protection of statutory $1,000,000 (now $1,500,000) medical malpractice cap, but corporation was liable for excess when jury award of $1.85 million was rendered jointly and severally. Schwartz v. Brownlee, 253 Va. 159 , 482 S.E.2d 827, 1997 Va. LEXIS 23 (1997).

    CIRCUIT COURT OPINIONS

    Scope of statutory cap. —

    By its plain language, § 8.01-581.15 , placing a statutory cap on recoveries in medical malpractice actions, limited only a patient’s recovery for injuries and/or death; it did not vitiate any of the patient’s other legal rights. Speelman v. Browning, 57 Va. Cir. 234, 2001 Va. Cir. LEXIS 436 (Norfolk Dec. 21, 2001).

    Even though she was suing multiple health care providers, the patient could proceed against the hospital, doctor, and nurse under each of her malpractice claims, but the total amount of damages she could recover was capped at $2 million under the Virginia Medical Malpractice Act. Guilliams v. Wray, 79 Va. Cir. 244, 2009 Va. Cir. LEXIS 86 (Roanoke Sept. 9, 2009).

    Limitations on the amount of recovery available in medical malpractice cases were valid and did not apply to cases of ordinary negligence. Mullins v. Woodmont Health Care Ctr., 56 Va. Cir. 295, 2001 Va. Cir. LEXIS 156 (Spotsylvania County July 31, 2001).

    Statute caps malpractice awards. —

    Healthcare provider was entitled to have its motion to reduce the jury verdict granted, as its award exceeded the statutory cap on medical malpractice verdicts allowed in Virginia. Allen v. Mid-Atlantic Health Alliance, Inc., 63 Va. Cir. 59, 2003 Va. Cir. LEXIS 194 (Fredericksburg June 17, 2003), aff'd in part and rev'd in part, 268 Va. 222 , 601 S.E.2d 598, 2004 Va. LEXIS 133 (2004).

    Method of addressing statutory cap. —

    Proper method for addressing an ad damnum that exceeded the statutory cap for medical malpractice actions was for the court to permit the ad damnum and order a post-verdict remittitur, if necessary, after the jury assessed damages since it was within the province of the jury to reach a verdict as to damages and then the duty of the court to apply the law and, if necessary, reduce the award to comport with the statutory cap. Wright v. Eli Lilly & Co., 65 Va. Cir. 485, 2004 Va. Cir. LEXIS 295 (Portsmouth Sept. 21, 2004).

    Effect of section on right to interest. —

    Section 8.01-382 confers on plaintiffs a right to interest between a jury verdict and judgment, while § 8.01-581.15 limits the total amount of a plaintiff’s recovery for his or her injuries, but § 8.01-581.15 does not prejudice a plaintiff’s separate and distinct right to recover interest after damages are liquidated, that is, after the verdict but before judgment. Speelman v. Browning, 57 Va. Cir. 234, 2001 Va. Cir. LEXIS 436 (Norfolk Dec. 21, 2001).

    Because § 8.01-581.15 limits only a plaintiff’s recovery for injuries, in medical malpractice cases, it does not bar the plaintiff’s recovery of “verdict to judgment” interest, and such interest, from verdict to judgment, is not an element of the recovery for the plaintiff’s injuries, but statutory compensation for the delay in paying an amount once it is liquidated, or made certain, by a jury verdict. Speelman v. Browning, 57 Va. Cir. 234, 2001 Va. Cir. LEXIS 436 (Norfolk Dec. 21, 2001).

    Although pre-judgment interest is limited by statutory caps, neither § 8.01-581.15 nor § 8.01-38.1 imposes a limit on post-judgment interest under § 8.01-382 . Crouse v. Med. Facilities of Am. XLVIII, 86 Va. Cir. 168, 2013 Va. Cir. LEXIS 7 (Roanoke Jan. 22, 2013).

    Damages limited. —

    Doctor’s request for relief pursuant to § 8.01-581.15 was granted because the facts and circumstances of the case entitled the doctor to the relief requested under § 8.01-581.15 in an amount that corresponded with the time periods set forth in the statute. Macdonald v. Corrigan, 85 Va. Cir. 165, 2012 Va. Cir. LEXIS 70 (Fairfax County Aug. 8, 2012).

    § 8.01-581.16. Civil immunity for members of or consultants to certain boards or committees.

    1. Every member of, or health care professional consultant to, any committee, board, group, commission or other entity shall be immune from civil liability for any act, decision, omission, or utterance done or made in performance of his duties while serving as a member of or consultant to such committee, board, group, commission or other entity that functions primarily to review, evaluate, or make recommendations on (i) the duration of patient stays in health care facilities; (ii) the professional services furnished with respect to the medical, dental, psychological, podiatric, chiropractic, veterinary, or optometric necessity for such services; (iii) the purpose of promoting the most efficient use or monitoring the quality of care of available health care facilities and services, or of emergency medical services agencies and services; (iv) the adequacy or quality of professional services; (v) the competency and qualifications for professional staff privileges; (vi) the reasonableness or appropriateness of charges made by or on behalf of health care facilities; (vii) patient safety, including entering into contracts with patient safety organizations, provided that such committee, board, group, commission, or other entity has been established pursuant to federal or state law or regulation, the requirements of a national accrediting organization granted authority by the Centers for Medicare and Medicaid Services to assure compliance with Medicare conditions of participation pursuant to § 1865 of Title XVIII of the Social Security Act (42 U.S.C. § 1395bb), or guidelines approved or adopted by a statewide or local association representing health care providers licensed in the Commonwealth pursuant to clause (iii)(f) of subsection B of § 8.01-581.17 , or established and duly constituted by one or more public or licensed private hospitals, health systems, community services boards, or behavioral health authorities, or with a governmental agency, and provided further that such act, decision, omission, or utterance is not done or made in bad faith or with malicious intent.
    2. Every member of, or health care professional consultant to, any committee, board, group, commission, or other entity that functions primarily to review, evaluate, or make recommendations on a professional program to address issues related to career fatigue and wellness in health care professionals licensed, registered, or certified by the Boards of Medicine, Nursing, or Pharmacy, or in students enrolled in a school of medicine, osteopathic medicine, nursing, or pharmacy located in the Commonwealth, that is established or contracted for by a statewide association, that is exempt under 26 U.S.C. § 501(c)(6) of the Internal Revenue Code, and that primarily represents health care professionals licensed to practice medicine or osteopathic medicine in multiple specialties shall be immune from civil liability for any act, decision, omission, or utterance done or made in performance of his duties while serving as a member of or consultant to such committee, board, group, commission, or other entity. No active participant in a professional program described in this subsection shall be employed or engaged by such professional program or have a financial ownership interest in such professional program.

    History. Code 1950, § 8-654.9; 1976, c. 611; 1977, c. 617; 1981, c. 174; 1987, c. 713; 1989, c. 729; 1993, c. 702; 2001, c. 381; 2002, c. 675; 2006, c. 412; 2014, cc. 17, 320, 363; 2020, cc. 198, 1093; 2021, Sp. Sess. I, cc. 5, 243.

    Cross references.

    As to licensed provider statement to prospective employer, see § 32.1-326.4.

    The 2001 amendments.

    The 2001 amendment by c. 381 inserted “community services boards, or behavioral health authorities” near the end of the section.

    The 2002 amendments.

    The 2002 amendment by c. 675 substituted “which” for “with” preceding “function primarily to review”; added clause (vii); inserted “committee, board, group, commission or other ” following “provided that such”; and substituted “Healthcare Organizations” for “Hospitals” following “Joint Commission on Accreditation of.”

    The 2006 amendments.

    The 2006 amendment by c. 412, in clause (iii), inserted “or monitoring the quality of care” and “or of emergency medical services agencies and services.”

    The 2014 amendments.

    The 2014 amendments by cc. 17 and 363 are identical, and substituted “the requirements of a national accrediting organization granted authority by the Centers for Medicare and Medicaid Services to assure compliance with Medicare conditions of participation pursuant to § 1865 of Title XVIII of the Social Security Act (42 U.S.C. § 1395bb), or guidelines approved or adopted by a statewide or local association representing health care providers licensed in the Commonwealth pursuant to clause (iii)(f) of subsection B of § 8.01-581.17 ” for “or pursuant to Joint Commission on Accreditation of Healthcare Organizations requirements,” inserted “health systems,” and made a minor stylistic change.

    The 2014 amendment by c. 320 substituted “the requirements of a national accrediting organization granted authority by the Centers for Medicare and Medicaid Services to ensure compliance with Medicare conditions of participation pursuant to § 1865 of Title XVIII of the Social Security Act (42 U.S.C. § 1395bb)” for “Joint Commission on Accreditation of Healthcare Organizations requirements.” The section has been set out in the form above at the direction of the Virginia Code Commission.

    The 2020 amendments.

    The 2020 amendment by c. 198, effective March 8, 2020, and by c. 1093, effective April 10, 2020, are identical, and added subsection B; and made stylistic changes.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendments by Sp. Sess. I, c. 5, effective February 25, 2021 and Sp. Sess. I, c. 243, effective March 18, 2021, are identical, and substituted “registered, or certified by the Boards of Medicine, Nursing, or Pharmacy, or in students enrolled in a school of medicine, osteopathic medicine, nursing, or pharmacy located in the Commonwealth” for “to practice medicine or osteopathic medicine or licensed as a physician assistant” in the first sentence in subsection B.

    Law Review.

    For comment, “Scope of Permissible Pretrial Discovery of Medical Malpractice Review Panel Deliberations in Virginia: Klarfeld v. Salsbury,” see 10 G.M.U. L. Rev. 577 (1988).

    For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

    For survey on medical malpractice in Virginia for 1989, see 23 U. Rich. L. Rev. 731 (1989).

    For annual essay of Virginia Law: “Discovery Divide: Virginia Code Section 8.01-581 ’s Quality Assurance Privilege and Its Protection of Healthcare Provider Policies and Incident Reports,” see 39 U. Rich. L. Rev. 61 (2004).

    CASE NOTES

    Hospital director is entitled to immunity. —

    Summary judgment was granted to a hospital director on a doctor’s claims for civil conspiracy because, to the extent that the director participated in the board’s actions leading to the doctor’s resignation, he was immune from civil liability under § 8.01-581.16 .Payman v. Lee County Cmty. Hosp., No. 2:04CV00017, 2005 U.S. Dist. LEXIS 2923 (W.D. Va. Feb. 28, 2005).

    Healthcare association not entitled to qualified immunity for allegedly defamatory statements that its employees made maliciously, and doctors who quit their jobs at the association stated a claim for defamation per se and were entitled to show that the association’s employees acted maliciously when they told others that the doctors “abandoned” their patients and that people who worked for association had “concerns” about the doctors’ competence. Fuste v. Riverside Healthcare Ass'n, 265 Va. 127 , 575 S.E.2d 858, 2003 Va. LEXIS 13 (2003).

    Scope of immunity of panel members. —

    Members of medical malpractice panels arguably may be within the scope of this section and entitled to civil immunity because of the reference to “other entity.” Nevertheless, the scope of § 8.01-581.17 is more limited. That statute is restricted to certain specified “committees,” including by cross-reference those “committees” performing the functions set forth in this section. Stated differently, § 8.01-581.17 does not include an “other entity” referred to in this section which is not a “committee.” Klarfeld v. Salsbury, 233 Va. 277 , 355 S.E.2d 319, 3 Va. Law Rep. 2370, 1987 Va. LEXIS 195 (1987) (decided prior to later amendments).

    Injury under this section refers collectively to a constellation of harms arising from a particular act or treatment. Power v. Alexandria Physicians Group, 887 F. Supp. 845, 1995 U.S. Dist. LEXIS 7108 (E.D. Va. 1995), aff'd, 91 F.3d 132, 1996 U.S. App. LEXIS 35139 (4th Cir. 1996) (decided prior to later amendments).

    Entitled to immunity. —

    Summary judgment was granted to defendant physician because defendant was subject to immunity when the allegations contained in plaintiff’s complaint arose from defendant’s position as chair of a hospital executive board, and there was no showing that defendant acted in bad faith. Payman v. Mirza, No. 2:02CV00023, 2002 U.S. Dist. LEXIS 21489 (W.D. Va. Nov. 1, 2002).

    To the extent that a hospital official participated in a medical center board’s actions leading to the resignation of a doctor, the official was immune from civil liability from the doctor’s pro se action alleging that a medical center and officials conspired to interfere with his contractual relationship. Payman v. Lee County Cmty. Hosp., No. 2:04CV00017, 2005 U.S. Dist. LEXIS 6697 (W.D. Va. Apr. 20, 2005).

    CIRCUIT COURT OPINIONS

    Personnel file privileged. —

    Documents pertaining to peer reviews and evaluations in a nurse’s personnel file were privileged under § 8.01-581.17 , and not discoverable in a medical malpractice case. Mejia-Arevalo v. Inova Health Care Servs., 77 Va. Cir. 43, 2008 Va. Cir. LEXIS 123 (Fairfax County Aug. 8, 2008).

    Hospital policies, procedures, protocols not privileged. —

    In a malpractice case, once a hospital’s policies, procedures, and protocols were promulgated and then referenced in a deceased patient’s records as a shorthand means of summarizing what was done, they did not fall within the peer review privilege of § 8.01-581.17 , and were therefore discoverable by plaintiff. Flinchum v. INOVA Health Sys., 84 Va. Cir. 530, 2012 Va. Cir. LEXIS 59 (Fairfax County June 19, 2012).

    Immunity undermined. —

    While a physician’s allegations of injury to a property right were timely under subsection B of § 8.01-243 , and undermined the immunity granted by 42 U.S.C.S. § 11111 and § 8.01-581.16 , the allegations were insufficient to draw conclusions regarding whether improper methods were used by the owner of a practice group that interfered with the physician’s contract with a hospital. Atta v. Kelly, 84 Va. Cir. 272, 2012 Va. Cir. LEXIS 114 (Salem Feb. 3, 2012).

    Documents not privileged. —

    Statute did not protect the redacted information where the nurse entered it into the incident report computer program without any consultation with any medical staff committee, utilization review committee, or other committee, board, group, commission, or other entity statutorily specified; the legislative intent was promote open and frank discussion during the peer review process among health care providers, and the nurse’s entries were singularly hers and were therefore not privileged. Hite v. Mary Immaculate Hosp., Inc., 105 Va. Cir. 121, 2020 Va. Cir. LEXIS 99 (Newport News Apr. 20, 2020).

    § 8.01-581.17. Privileged communications of certain committees and entities.

    1. For the purposes of this section:“Centralized credentialing service” means (i) gathering information relating to applications for professional staff privileges at any public or licensed private hospital or for participation as a provider in any health maintenance organization, preferred provider organization, or any similar organization and (ii) providing such information to those hospitals and organizations that utilize the service.“Patient safety data” means reports made to patient safety organizations together with all health care data, interviews, memoranda, analyses, root cause analyses, products of quality assurance or quality improvement processes, corrective action plans, or information collected or created by a health care provider as a result of an occurrence related to the provision of health care services.“Patient safety organization” means any organization, group, or other entity that collects and analyzes patient safety data for the purpose of improving patient safety and health care outcomes and that is independent and not under the control of the entity that reports patient safety data.
    2. The proceedings, minutes, records, and reports of any (i) medical staff committee, utilization review committee, professional program, or other committee, board, group, commission, or other entity as specified in § 8.01-581.16 ; (ii) nonprofit entity that provides a centralized credentialing service; or (iii) quality assurance, quality of care, or peer review committee established pursuant to guidelines approved or adopted by (a) a national or state physician peer review entity, (b) a national or state physician accreditation entity, (c) a national professional association of health care providers or Virginia chapter of a national professional association of health care providers, (d) a licensee of a managed care health insurance plan (MCHIP) as defined in § 38.2-5800, (e) the Office of Emergency Medical Services or any regional emergency medical services council, or (f) a statewide or local association representing health care providers licensed in the Commonwealth, together with all communications, both oral and written, originating in or provided to such committees or entities, are privileged communications which may not be disclosed or obtained by legal discovery proceedings unless a circuit court, after a hearing and for good cause arising from extraordinary circumstances being shown, orders the disclosure of such proceedings, minutes, records, reports, or communications. Additionally, for the purposes of this section, accreditation and peer review records of the American College of Radiology and the Medical Society of Virginia are considered privileged communications. Oral communications regarding a specific medical incident involving patient care, made to a quality assurance, quality of care, or peer review committee established pursuant to clause (iii), shall be privileged only to the extent made more than 24 hours after the occurrence of the medical incident. Nothing in this section shall be construed as providing any privilege to any health care provider, emergency medical services agency, community services board, or behavioral health authority with respect to any factual information regarding specific patient health care or treatment, including patient health care incidents, whether oral, electronic, or written. However, the analysis, findings, conclusions, recommendations, and the deliberative process of any medical staff committee, utilization review committee, or other committee, board, group, commission, or other entity specified in § 8.01-581.16 , as well as the proceedings, minutes, records, and reports, including the opinions and reports of experts, of such entities shall be privileged in their entirety under this section. Information known by a witness with knowledge of the facts or treating health care provider is not privileged or protected from discovery merely because it is provided to a committee, board, group, commission, or other entity specified in § 8.01-581.16, and may be discovered by deposition or otherwise in the course of discovery. A person involved in the work of the entities referenced in this subsection shall not be made a witness with knowledge of the facts by virtue of his involvement in the quality assurance, peer review, professional program, or credentialing process.
    3. Nothing in this section shall be construed as providing any privilege to health care provider, emergency medical services agency, community services board, or behavioral health authority medical records kept with respect to a patient, whose treatment is at issue, in the ordinary course of business of operating a hospital, emergency medical services agency, community services board, or behavioral health authority nor to any facts or information contained in medical records, nor shall this section preclude or affect discovery of or production of evidence relating to hospitalization or treatment of such patient in the ordinary course of the patient’s hospitalization or treatment. However, the proceedings, minutes, records, reports, analysis, findings, conclusions, recommendations, and the deliberative process, including opinions and reports of experts, of any medical staff committee, utilization review committee, professional program, or other committee, board, group, commission, or other entity specified in § 8.01-581.16 shall not constitute medical records, are privileged in their entirety, and are not discoverable.
    4. Notwithstanding any other provision of this section, reports or patient safety data in possession of a patient safety organization, together with the identity of the reporter and all related correspondence, documentation, analysis, results, or recommendations, shall be privileged and confidential and shall not be subject to a civil, criminal, or administrative subpoena or admitted as evidence in any civil, criminal, or administrative proceeding. Nothing in this subsection shall affect the discoverability or admissibility of facts, information, or records referenced in subsection C as related to patient care from a source other than a patient safety organization.
    5. Any patient safety organization shall promptly remove all patient-identifying information after receipt of a complete patient safety data report unless such organization is otherwise permitted by state or federal law to maintain such information. Patient safety organizations shall maintain the confidentiality of all patient-identifying information and shall not disseminate such information except as permitted by state or federal law.
    6. Exchange of (i) patient safety data among health care providers or patient safety organizations that does not identify any patient or (ii) information privileged pursuant to subsection B between professional programs, committees, boards, groups, commissions, or other entities specified in § 8.01-581.16 shall not constitute a waiver of any privilege established in this section.
    7. Reports of patient safety data to patient safety organizations shall not abrogate obligations to make reports to health regulatory boards or other agencies as required by state or federal law.
    8. No employer shall take retaliatory action against an employee who in good faith makes a report of patient safety data to a patient safety organization.
    9. Reports produced solely for purposes of self-assessment of compliance with requirements or standards of a national accrediting organization granted authority by the Centers for Medicare and Medicaid Services to ensure compliance with Medicare conditions of participation pursuant to § 1865 of Title XVIII of the Social Security Act (42 U.S.C. § 1395bb) shall be privileged and confidential and shall not be subject to subpoena or admitted as evidence in a civil or administrative proceeding. Nothing in this subsection shall affect the discoverability or admissibility of facts, information, or records referenced in subsection C as related to patient care from a source other than such accreditation body. A health care provider’s release of such reports to such accreditation body shall not constitute a waiver of any privilege provided under this section.

    History. Code 1950, § 8-654.10; 1976, c. 611; 1977, c. 617; 1995, c. 500; 1997, c. 292; 2001, c. 381; 2002, c. 675; 2004, c. 250; 2006, cc. 412, 678; 2007, c. 530; 2010, c. 196; 2011, cc. 15, 753; 2014, c. 320; 2020, cc. 198, 1093.

    Cross references.

    As to exclusion under the Freedom of Information Act for privileged communications, see § 2.2-3705.5.

    As to licensed provider statement to prospective employer, see § 32.1-326.4.

    As to reporting of disciplinary actions against, or certain disorders of, health professionals by health care facilities, see § 54.1-2400.6.

    The 2001 amendments.

    The 2001 amendment by c. 381 inserted “community services board, or behavioral health authority” in the first paragraph, in two places.

    The 2002 amendments.

    The 2002 amendment by c. 675 added the present subsection designations; added subsections A, D, E, F, and G; in present subsection B, inserted “board, group, commission or other entity” in clause (i), substituted “or” for ‘’and” preceding “(ii),” and added the last sentence; deleted the paragraph following present subsection C, which formerly read: “For purposes of this section ‘centralized credentialing service’ means (i) gathering information relating to applications for professional staff privileges at any public or licensed private hospital or for participation as a provider in any health maintenance organization, preferred provider organization or any similar organization and (ii) providing such information to those hospitals and organizations that utilize the service. Additionally, for the purposes of this section, accreditation and peer review records of the American College of Radiology and the Medical Society of Virginia are considered privileged communications.”

    The 2004 amendments.

    The 2004 amendment by c. 250 deleted “that exacerbates an existing medical condition or could result in injury, illness, or death” at the end of the definition of “Patient safety data” in subsection A; in subsection B, inserted clause (iii) in the first sentence and added the last sentence; substituted “health care provider” for “hospital” in subsection C; and made minor stylistic changes.

    The 2006 amendments.

    The 2006 amendment by c. 412, in subsection B, inserted “quality of care” in clause (ii) and in the third sentence, inserted clause (e) and redesignated former clause (e) as clause (f); inserted “emergency medical services agency” in two places in subsection C; inserted “other” in subsection G; and made a related change.

    The 2006 amendment by c. 678 added subsection I.

    The 2007 amendments.

    The 2007 amendment by c. 530 inserted “physician” following “national or state” in clauses (iii) (a) and (iii) (b) of the first sentence in subsection B.

    The 2010 amendments.

    The 2010 amendment by c. 196, in subsection F, inserted the clause (i) designator, inserted clause (ii), and made a related change.

    The 2011 amendments.

    The 2011 amendments by cc. 15 and 753 are identical, and in subsection B, added the last four sentences; and in subsection C, in the first sentence, substituted “with respect to a patient, whose treatment is at issue” for “with respect to any patient,” “medical records” for “such records,” and “such patient in the ordinary course of the patients hospitalization or treatment” for “any patient in the ordinary course of hospitalization of such patient,” and added the last sentence.

    The 2014 amendments.

    The 2014 amendment by c. 320 in subsection I substituted “a national accrediting organization granted authority by the Centers for Medicare and Medicaid Services to ensure compliance with Medicare conditions of participation pursuant to § 1865 of Title XVIII of the Social Security Act (42 U.S.C. § 1395bb)” for “the Joint Commission on Accreditation of Healthcare Organizations.”

    The 2020 amendments.

    The 2020 amendments by c. 198, effective March 8, 2020, and by c. 1093, effective April 10, 2020, are identical, and inserted “professional program” in subsections B and C, and inserted “professional programs” in the middle of subsection F.

    Law Review.

    For survey on medical malpractice in Virginia for 1989, see 23 U. Rich. L. Rev. 731 (1989).

    For annual essay of Virginia Law: “Discovery Divide: Virginia Code Section 8.01-581 ’s Quality Assurance Privilege and Its Protection of Healthcare Provider Policies and Incident Reports,” see 39 U. Rich. L. Rev. 61 (2004).

    For 2006 survey article, “Health Care Law,” see 41 U. Rich. L. Rev. 179 (2006).

    For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    For article on medical malpractice law for the year 2007-2008, see 43 U. Rich. L. Rev. 227 (2008).

    For article, “Civil Practice and Procedure,” see 45 U. Rich. L. Rev. 183 (2010).

    For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Discovery, § 4.

    CASE NOTES

    Scope of immunity of panel members. —

    Members of medical malpractice panels arguably may be within the scope of § 8.01-581.16 and entitled to civil immunity because of the reference to “other entity.” Nevertheless, the scope of this section is more limited. That statute is restricted to certain specified “committees,” including by cross-reference those “committees” performing the functions set forth in § 8.01-581.16 . Stated differently, this section does not include an “other entity” referred to in § 8.01-581.16 which is not a “committee.” Klarfeld v. Salsbury, 233 Va. 277 , 355 S.E.2d 319, 3 Va. Law Rep. 2370, 1987 Va. LEXIS 195 (1987).

    Privilege applies to all kinds of litigation. —

    The privilege established by this section applies to all kinds of litigation, not just to medical malpractice actions. HCA Health Servs. of Va., Inc. v. Levin, 260 Va. 215 , 530 S.E.2d 417, 2000 Va. LEXIS 102 (2000).

    Privilege not applicable to factual information. —

    Admission of quality care control report was upheld because it was factual and use of the information in a peer review or quality care committee was insufficient to make it privileged. Riverside Hosp., Inc. v. Johnson, 272 Va. 518 , 636 S.E.2d 416, 2006 Va. LEXIS 102 (2006).

    Subject of review may not waive privilege. —

    The statutory privilege does not belong to the physician who is the subject of peer review and may not be unilaterally waived by the physician. HCA Health Servs. of Va., Inc. v. Levin, 260 Va. 215 , 530 S.E.2d 417, 2000 Va. LEXIS 102 (2000).

    Extraordinary circumstances not shown. —

    There is a vast difference between the legal principle of “relevance” and the term “extraordinary circumstances” used in this section. While peer review documents held by a hospital might be relevant to a physician’s defamation suit, there is nothing “extraordinary” about the mere need to defend such suit that would justify ordering the disclosure of such documents; the need to establish a defense, which must be made in all civil actions, is the essence of usual and ordinary and is not “extraordinary.” HCA Health Servs. of Va., Inc. v. Levin, 260 Va. 215 , 530 S.E.2d 417, 2000 Va. LEXIS 102 (2000).

    CIRCUIT COURT OPINIONS

    Privilege does not apply to medical malpractice insurer. —

    Medical malpractice insurer not involved in the quality of healthcare or the direct cost to a patient of services is unable to raise the § 8.01-581.17 privilege. Eppard v. Kelly, 62 Va. Cir. 57, 2003 Va. Cir. LEXIS 313 (Charlottesville May 9, 2003).

    Work product doctrine. —

    Finding that the statutory privilege of § 8.01-581.17 was inapplicable did not preclude the work product doctrine from protecting material from disclosure. Matthews v. Maryview Hosp., 74 Va. Cir. 283, 2007 Va. Cir. LEXIS 283 (Portsmouth Oct. 25, 2007).

    A factual incident report is not work product. —

    Patient’s motion to compel production of an incident report prepared by a nurse was granted where the report appeared to be a medical record kept with respect to the patient in the ordinary course of business of operating a hospital because there was no evidence that the report was a report specially prepared for quality assurance purposes. Witzke v. Martha Jefferson Surgery Ctr., L.L.C., 70 Va. Cir. 217, 2006 Va. Cir. LEXIS 14 (Albemarle County Feb. 15, 2006).

    Patient was entitled to the factual information regarding specific patient health care or treatment found in the medical center’s incident reports, because the use of that factual information in some way in the peer review or quality care committee process alone was insufficient to automatically cloak such information with the protection of non-disclosure. Jones v. Jones, 94 Va. Cir. 134, 2016 Va. Cir. LEXIS 123 (Richmond Aug. 15, 2016).

    Statute does not create a cause of action for breach. —

    Plain language of § 8.01-581.17 evinces the intent of the Virginia legislature to create a statutory privilege in order to protect peer review evaluations from involuntary disclosure in the discovery process of civil litigation; § 8.01-581.17 does not create a cause of action for the breach of the duty of confidentiality. Thus, a doctor’s claim that a hospital, its administrator, and an associated corporation breached § 8.01-581.17 by disclosing the doctor’s peer review of another physician was without merit. Payman v. St. Mary's Hosp., Inc., 72 Va. Cir. 582, 2004 Va. Cir. LEXIS 386 (Wise County Mar. 17, 2004).

    Personnel file privileged. —

    Documents pertaining to peer reviews and evaluations in a nurse’s personnel file were privileged under § 8.01-581.17 , and not discoverable in a medical malpractice case. Mejia-Arevalo v. Inova Health Care Servs., 77 Va. Cir. 43, 2008 Va. Cir. LEXIS 123 (Fairfax County Aug. 8, 2008).

    Hospital policies, protocols, and procedures. —

    Executrix was entitled to the production of a hospital’s protocol manuals, policy directive or training manuals because, although the protocols most likely could not be admitted at trial, they were not privileged where the protocols and procedure manuals disseminated to employees charged with patient care necessarily related to the hospitalization and treatment of any patient in the ordinary course of treatment, the statutory language did not indicate any intent on the part of the legislature to extend a privilege to the end product of the deliberative review process, and the protocols and manuals contained none of the medical review committee’s critiques of individuals or any specific dialogue that occurred during the meetings. Rossell v. Waer, 2002 Va. Cir. LEXIS 476 (Virginia Beach Oct. 3, 2002).

    Section 8.01-581.17 does not forbid the discovery of hospital policies, protocols, and procedures because the statute should be given a narrow construction, and it does not protect policies, protocols, and procedures from discovery. Gravely v. Perren, 77 Va. Cir. 370, 2009 Va. Cir. LEXIS 113 (Martinsville Jan. 28, 2009).

    Hospital’s motion to quash a patient’s subpoena duces tecum, which requested the production of protocols, policies, and/or procedure manuals, was denied because the requested documents were calculated to lead to the discovery of admissible evidence; the policies, protocols, and procedures that were requested were related to the subject matter in the sense that they were germane to the subject of the patient’s medical malpractice lawsuit. Gravely v. Perren, 77 Va. Cir. 370, 2009 Va. Cir. LEXIS 113 (Martinsville Jan. 28, 2009).

    Hospital’s CT scan protocols were not privileged under § 8.01-581.17 because the phrase “all communications” in § 8.01-581.17 was limited to the enumerated “proceedings, minutes, records, and reports.” Jones v. Perez, 81 Va. Cir. 52, 2010 Va. Cir. LEXIS 278 (Chesapeake Oct. 26, 2010).

    In a malpractice case, once a hospital’s policies, procedures, and protocols were promulgated and then referenced in a deceased patient’s records as a shorthand means of summarizing what was done, they did not fall within the peer review privilege of § 8.01-581.17 , and were therefore discoverable by plaintiff. Flinchum v. INOVA Health Sys., 84 Va. Cir. 530, 2012 Va. Cir. LEXIS 59 (Fairfax County June 19, 2012).

    Policies promulgated after the deliberation process is complete are not enumerated items protected by this statute, and permitting their discovery will not run counter to the legislature’s intent to promote open and frank discussion during the peer review process among health care providers with the ultimate goal of improving the quality of healthcare. Wash v. Emporia Hosp. Corp., 92 Va. Cir. 1, 2015 Va. Cir. LEXIS 220 (Greensville County Jan. 13, 2015).

    Court granted plaintiff’s motion to compel the production of the hospital’s policies, procedures, and protocols in place at the time of the decedent’s fall because policies were the generalized conglomeration of the conclusions, recommendations, and findings from the peer review process, adopted and enacted by a hospital to improve overall patient care; there was no evidence that the hospital’s policies, procedures, and protocols requested by plaintiff constituted the conclusions, recommendations, and findings generated by a peer review committee, and they did not fall within the privilege provided by this statute; and the requested documents were relevant to plaintiff’s case and were likely to lead to the discovery of admissible evidence. Wash v. Emporia Hosp. Corp., 92 Va. Cir. 1, 2015 Va. Cir. LEXIS 220 (Greensville County Jan. 13, 2015).

    Extraordinary circumstances not shown. —

    Plaintiff’s assertion of the privilege exception under subsection B of § 8.01-581.17 was rejected because there was no good cause arising from extraordinary circumstances to apply the privilege exception, and plaintiff had not demonstrated an inability to obtain facts, especially when discovery had not taken place; the mere fact that the patient cannot recall the incident does not vitiate privilege, and mere presence of a risk manager at a quality meeting does not vitiate privilege. Morel v. Mary Immaculate Nursing Ctr., Inc., 2008 Va. Cir. LEXIS 209 (Newport News May 5, 2008).

    Documents privileged. —

    Hospital’s credentialing file and its surgery department’s file on a doctor fell under the umbrella of privileged communication granted by subsection B of § 8.01-581.17 ; an executrix did not demonstrate good cause for the authorization of the release of the privileged information. Martha Clements v. MCV Associated Physicians, 61 Va. Cir. 673, 2002 Va. Cir. LEXIS 419 (Richmond Nov. 7, 2002).

    Since a hospital’s policies, procedures, and protocols sought by a patient in a medical malpractice case did not fall within the given statutory exception to “all communications,” they were within the subset of communications statutorily defined and thus subject to the privilege created by § 8.01-581.17 and not discoverable. Mejia-Arevalo v. Inova Health Care Servs., 77 Va. Cir. 43, 2008 Va. Cir. LEXIS 123 (Fairfax County Aug. 8, 2008).

    Data collection forms were privileged because the evidence and the documents indicated that they were a part of the deliberative process. Morel v. Mary Immaculate Nursing Ctr., Inc., 2008 Va. Cir. LEXIS 209 (Newport News May 5, 2008).

    Item 2 of the privilege log was part of the root cause analysis that was privileged pursuant to this section. Plaintiff did not show good cause arising from extraordinary circumstances as was necessary to invade the privilege. Lewis v. Sentara Hosps., 91 Va. Cir. 482, 2016 Va. Cir. LEXIS 4 (Norfolk Jan. 14, 2016).

    Documents not privileged. —

    In an executor’s action against a corporation and several limited partnerships that operated a nursing home, the trial court found that the defendants’ policies, procedures, protocols, guidelines, and training materials relating to the prevention, treatment, and documentation of pressure ulcers and infections were not privileged materials under § 8.01-581.17 and it granted the executor’s motion to compel production of those documents. Day v. Medical Facilities of Am., Inc., 59 Va. Cir. 378, 2002 Va. Cir. LEXIS 372 (Salem Aug. 21, 2002).

    Document that was in essence an incident report with medical chart review material in a database format and was prepared for a risk management committee with a focus on adjusting plaintiff’s bill was not privileged under § 8.01-581.17 .Eppard v. Kelly, 62 Va. Cir. 57, 2003 Va. Cir. LEXIS 313 (Charlottesville May 9, 2003).

    Where documents purported to involve medical discussions, but simply listed investigative facts unearthed by the various parties involved in the correspondence, and most of the work was conducted by and for a hospital’s medical malpractice insurer alone, they were not privileged under § 8.01-581.17 .Eppard v. Kelly, 62 Va. Cir. 57, 2003 Va. Cir. LEXIS 313 (Charlottesville May 9, 2003).

    Polices, procedures, directives, instructions, and written memoranda from a hospital were not privileged, because they were not of the same character as peer review committee minutes. Auer v. Baker, 63 Va. Cir. 596, 2004 Va. Cir. LEXIS 93 (Norfolk Feb. 17, 2004).

    Although the materials sought by an administratrix were not privileged under § 8.01-581.17 , they moved beyond any peer review purpose and represented personnel policies as well as procedures for the operation of a hospital’s radiology department; since disclosure would lead to the discovery of admissible evidence, pursuant to Va. Sup. Ct. R. 4:1(b)(1), the administratrix’s motion to compel was denied. Hubbard v. Pascual, 71 Va. Cir. 265, 2006 Va. Cir. LEXIS 121 (Portsmouth July 10, 2006).

    Fact that peer review employed the use of factual information concerning patient care incidents was not sufficient to shield that information from disclosure where that information did not contain committee discussion or action. Such information was the type contemplated by subsection C of § 8.01-581.17 , which the General Assembly had specifically instructed should not be brought within the scope of privilege under any other part of that section. Matthews v. Maryview Hosp., 74 Va. Cir. 283, 2007 Va. Cir. LEXIS 283 (Portsmouth Oct. 25, 2007).

    “Medication Quality Care Report” and a transcript of medical personnel’s statements made to hospital management were not shielded from discovery under § 8.01-581.17 or the work product doctrine. The material was assembled during the ordinary course of business for safety and improvement purposes and while no legal action was pending or threatened. Matthews v. Maryview Hosp., 74 Va. Cir. 283, 2007 Va. Cir. LEXIS 283 (Portsmouth Oct. 25, 2007).

    Medication quality care reports were not privileged because there was no evidence that they were associated with a protected committee, and a data collection form was not privileged when there was no evidence that it was a part of the deliberative process; investigative files were not made in anticipation of litigation and were not work product because the evidence demonstrated that similar investigations had taken place for serious accidents, and the investigation began prior to the purported threat to sue, and investigative forms were not privileged and were not work product when there was no evidence that they were created in anticipation of litigation, and they were fact based. Morel v. Mary Immaculate Nursing Ctr., Inc., 2008 Va. Cir. LEXIS 209 (Newport News May 5, 2008).

    Patient who had filed suit against a hospital and radiological technologist was not entitled to take a supplemental deposition pursuant to Va. Sup. Ct. R. 4:2, which only governed perpetuation of testimony prior to filing suit, but could take a deposition pursuant to Va. Sup. Ct. R. 4:5(a). CT scan protocols were not privileged under the peer review privilege statute, § 8.01-581.17 .Jones v. Perez, 81 Va. Cir. 52, 2010 Va. Cir. LEXIS 308 (Chesapeake Nov. 22, 2010).

    Document that contained conclusions and analysis, as well as a brief, factual account of the incident, was a medical record kept with respect to a particular patient in the ordinary course of business, and Riverside Hospital v. Johnson, 272 Va. 518 (2006), dictated that the factual information was not privileged under § 8.01-581.17 ; plaintiff was entitled to the document’s factual information, in a redacted form, free of all deliberative, analytical, and conclusory material. Hairston v. Eliacin, 82 Va. Cir. 499, 2011 Va. Cir. LEXIS 149 (Danville Apr. 26, 2011).

    Plaintiff’s motion to compel production of an incident report was granted where § 8.01-581.17 provided only a limited, not absolute, privilege from discovery, and factual patient cart and incident information was not privileged. Seibert v. Riverside Hosp., Inc., 2007 Va. Cir. LEXIS 346 (Newport News July 23, 2007).

    Although the incident and post-fall assessments prepared by the medical facilities, as well as witness statements, were not privileged under § 8.01-581.17 , they were still medical records, and as a result, if they were to be disclosed, the patients’ identifying information had to be redacted. Tinsley v. Medical Facilities of Am. XLVII, 92 Va. Cir. 446, 2011 Va. Cir. LEXIS 296 (Roanoke County May 12, 2011).

    Health care provider was subject to the statute and availed itself of the protections of the Patient Safety and Quality Improvement Act of 2005; if the provider did not participate in the process in accordance with Act, the deliberative analysis would not be protected as it was not the product of committee deliberation as statutorily required. However, as the provider was a participant and complied with the Act, only entries that did not constitute patient safety work product were to be disclosed. Hite v. Mary Immaculate Hosp., Inc., 105 Va. Cir. 121, 2020 Va. Cir. LEXIS 99 (Newport News Apr. 20, 2020).

    Statute did not protect the redacted information where the nurse entered it into the incident report computer program without any consultation with any medical staff committee, utilization review committee, or other committee, board, group, commission, or other entity statutorily specified; the legislative intent was promote open and frank discussion during the peer review process among health care providers, and the nurse’s entries were singularly hers and were therefore not privileged. Hite v. Mary Immaculate Hosp., Inc., 105 Va. Cir. 121, 2020 Va. Cir. LEXIS 99 (Newport News Apr. 20, 2020).

    § 8.01-581.18. Delivery of results of laboratory tests and other examinations not authorized by physician.

    1. Whenever a laboratory test or other examination of the physical or mental condition of any person is conducted by or under the supervision of a person other than a physician and not at the request or with the authorization of a physician, any report of the results of such test or examination shall be provided by the person conducting such test or examination to the person who was the subject of such test or examination. Such report shall state in bold type that it is the responsibility of the person so examined or tested to arrange with his physician for consultation and interpretation of the results of such test or examination. The provisions of this subsection shall not apply to any test or examination conducted under the auspices of the State Department of Health.
    2. As used in this section and § 8.01-581.18:1 , “physician” means a person licensed to practice medicine, podiatry, chiropractic or osteopathy in this Commonwealth pursuant to Chapter 29 (§ 54.1-2900 et seq.) of Title 54.1.

    History. Code 1950, § 8-654.11; 1977, c. 527; 1993, c. 702; 2006, cc. 684, 877.

    The number of this section was assigned by the Virginia Code Commission, the number in the 1977 act having been 8-654.11.

    The 2006 amendments.

    The 2006 amendment by c. 684, in subsection A, deleted “written” preceding “authorization” in the first sentence and substituted “person so examined or tested” for “recipient” in the second sentence; deleted former subsection B; and redesignated former subsection C as subsection B.

    The 2006 amendment by c. 877, in subsection C, inserted “and § 8.01-581.18:1 ” and “podiatry.”

    Law Review.

    For survey of Virginia law on torts for the year 1976-77, see 63 Va. L. Rev. 1491 (1977).

    For 2006 survey article, “Health Care Law,” see 41 U. Rich. L. Rev. 179 (2006).

    For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Physicians and Surgeons, § 15.

    § 8.01-581.18:1. Immunity of physicians for laboratory results and examinations.

    1. No physician shall be liable for the failure to review or act on the results of laboratory tests or examinations of the physical or mental condition of any patient, which tests or examinations the physician neither requested nor authorized, unless (i) the report of such results is provided directly to the physician by the patient so examined or tested with a request for consultation; (ii) the physician assumes responsibility to review or act on the results; or (iii) the physician has reason to know that in order to manage the specific mental or physical condition of the patient, review of or action on the pending results is needed. However, no physician shall be immune under this section unless the physician establishes that (a) no physician-patient relationship existed when the results were received or accessed; or (b) the physician received or accessed the results without a request for consultation and without responsibility for management of the specific mental or physical condition of the patient relating to the results or (c) the physician consulted on a specific mental or physical condition, the results were not part of that physician’s management of the patient and the physician had no reason to know that he was to inform the patient of the results or refer the patient to another physician; or (d) the physician received or accessed results, the interpretation of which would exceed the physician’s scope of practice and the physician had no reason to know that he was to inform the patient of the results or refer the patient to another physician.
    2. As used in this section, “physician” means a person licensed to practice medicine, chiropractic, or osteopathy in the Commonwealth pursuant to Chapter 29 (§ 54.1-2900 et. seq.) of Title 54.1.

    History. 2006, c. 684.

    Law Review.

    For 2006 survey article, “Health Care Law,” see 41 U. Rich. L. Rev. 179 (2006).

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    CASE NOTES

    Statute does not pertain to reports requested or authorized by a physician. —

    Overall, the provisions of this section create a mechanism for handling reports of the results of laboratory tests or examinations requested by an individual rather than by a physician, but do not pertain to reports of laboratory tests or examinations requested or authorized by a physician; the holding in Auer v. Miller , 270 Va. 172 , 613 S.E.2d 421 (Va. 2005), pertaining to former subsection B of § 8.01-581.18 is expressly overruled. Oraee v. Breeding, 270 Va. 488 , 621 S.E.2d 48, 2005 Va. LEXIS 98 (2005) (decided under former subsection B of § 8.01-581.18 ).

    Immunity properly granted. —

    Trial court granted immunity to the doctor pursuant to former subsection B of § 8.01-581.18 , because the physician did not request or authorize a test report and the test report was not provided to the physician with a request for consultation. Auer v. Miller, 270 Va. 172 , 613 S.E.2d 421, 2005 Va. LEXIS 66 (2005). But see Oraee v. Breeding , 270 Va. 488 , 621 S.E.2d 48 (2005), which overruled Auer , holding that former subsection B of § 8.01-581.18 pertains to reports ordered by the patient as opposed to a physician .

    CIRCUIT COURT OPINIONS

    Immunity denied. —

    Physician immunity did not bar a medical malpractice claim regarding the premature delivery and death of an infant because the physicians, who were neonatologists, did not meet their burden to demonstrate that one of the physicians had no reason to know of the necessity to review or take action on the results of a pending set of laboratory tests ordered by a doctor for the mother. Review of the results was necessary for the physicians to manage the associated, potentially substantial affects of the mother’s viral condition on the baby. Hahn v. Felluca, 2017 Va. Cir. LEXIS 92 (Fairfax County June 5, 2017).

    § 8.01-581.19. Civil immunity for physicians, psychologists, podiatrists, optometrists, veterinarians, nursing home administrators, and certified emergency medical services providers while members of certain committees.

    1. Any physician, chiropractor, psychologist, podiatrist, veterinarian, or optometrist licensed to practice in the Commonwealth shall be immune from civil liability for any communication, finding, opinion, or conclusion made in performance of his duties while serving as a member of any committee, board, group, commission, or other entity that is responsible for resolving questions concerning the admission of any physician, psychologist, podiatrist, veterinarian, or optometrist to, or the taking of disciplinary action against any member of, any medical society, academy, or association affiliated with the American Medical Association, the Virginia Academy of Clinical Psychologists, the American Psychological Association, the Virginia Applied Psychology Academy, the Virginia Academy of School Psychologists, the American Podiatric Medical Association, the American Veterinary Medical Association, the International Chiropractic Association, the American Chiropractic Association, the Virginia Chiropractic Association, or the American Optometric Association, provided that such communication, finding, opinion, or conclusion is not made in bad faith or with malicious intent.
    2. Any nursing home administrator licensed under the laws of the Commonwealth shall be immune from civil liability for any communication, finding, opinion, decision, or conclusion made in performance of his duties while serving as a member of any committee, board, group, commission, or other entity that is responsible for resolving questions concerning the admission of any health care facility to, or the taking of disciplinary action against any member of, the Virginia Health Care Association, provided that such communication, finding, opinion, decision, or conclusion is not made in bad faith or with malicious intent.
    3. Any emergency medical services provider who holds a valid certificate issued by the Commissioner of Health shall be immune from civil liability for any communication, finding, opinion, decision, or conclusion made in performance of his duties while serving as a member of any regional council, committee, board, group, commission, or other entity that is responsible for resolving questions concerning the quality of care, including triage, interfacility transfer, and other components of emergency medical services care, unless such communication, finding, opinion, decision, or conclusion is made in bad faith or with malicious intent.

    History. 1978, c. 541; 1987, c. 713; 1989, c. 729; 1993, c. 702; 1996, cc. 937, 980; 2006, c. 412; 2015, cc. 502, 503.

    The 2006 amendments.

    The 2006 amendment by c. 412 added subsection C.

    The 2015 amendments.

    The 2015 amendments by cc. 502 and 503 are identical, and substituted “provider who holds a valid certificate issued by the Commissioner of Health” for “personnel certified under the laws of the Commonwealth” in subsection C and made minor stylistic changes.

    CASE NOTES

    Healthcare association not entitled to qualified immunity for allegedly defamatory statements that its employees made maliciously, and doctors who quit their jobs at the association stated a claim for defamation per se and were entitled to show that the association’s employees acted maliciously when they told others that the doctors “abandoned” their patients and that people who worked for association had “concerns” about the doctors’ competence. Fuste v. Riverside Healthcare Ass'n, 265 Va. 127 , 575 S.E.2d 858, 2003 Va. LEXIS 13 (2003).

    § 8.01-581.19:1. Civil immunity for persons providing information to certain committees.

    Any person who provides information to any committee, board, group, commission, or other entity which is authorized to investigate any complaint of physical or mental impairment, that may show that any practitioner of medicine, osteopathy, optometry, chiropractic, podiatry, clinical psychology, physical therapy, veterinary medicine or any physical therapist assistant is unable to practice his profession with reasonable skill and safety, by reason of the use of alcohol, drugs, or other substances, or as a result of any mental or physical condition, shall be immune from civil liability for any act done for, or any utterance or communication made to, such entity in the course of providing such information. However, this section shall not apply if the act, utterance, or communication is done or made in bad faith or with malicious intent or if such disclosure is prohibited by federal law or regulations promulgated thereunder.

    The provisions of this section shall apply only to such entities described in this section as are (i) established pursuant to a federal or state law, (ii) established and duly constituted by one or more public or licensed private hospitals, (iii) a medical or chiropractic society that is operating its health care provider impairment program in cooperation with the Board of Medicine, or another governmental agency, (iv) an optometric society or association that is operating its optometric impairment program in cooperation with the Virginia Board of Optometry, (v) a veterinary medical association that is operating its veterinarian impairment program in cooperation with the Virginia Board of Veterinary Medicine, or (vi) a clinical psychology academy that is operating its clinical psychology impairment program in cooperation with the Board of Psychology.

    History. 1986, c. 604; 1987, c. 713; 1989, c. 729; 1993, c. 702; 1996, cc. 937, 980.

    § 8.01-581.20. Standard of care in proceeding before medical malpractice review panel; expert testimony; determination of standard in action for damages.

    1. In any proceeding before a medical malpractice review panel or in any action against a physician, clinical psychologist, clinical social worker, podiatrist, dentist, nurse, hospital, or other health care provider to recover damages alleged to have been caused by medical malpractice where the acts or omissions so complained of are alleged to have occurred in this Commonwealth, the standard of care by which the acts or omissions are to be judged shall be that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth and the testimony of an expert witness, otherwise qualified, as to such standard of care, shall be admitted; provided, however, that the standard of care in the locality or in similar localities in which the alleged act or omission occurred shall be applied if any party shall prove by a preponderance of the evidence that the health care services and health care facilities available in the locality and the customary practices in such locality or similar localities give rise to a standard of care which is more appropriate than a statewide standard. Any health care provider who is licensed to practice in Virginia shall be presumed to know the statewide standard of care in the specialty or field of practice in which he is qualified and certified. This presumption shall also apply to any person who, but for the lack of a Virginia license, would be defined as a health care provider under this chapter, provided that such person is licensed in some other state of the United States and meets the educational and examination requirements for licensure in Virginia. An expert witness who is familiar with the statewide standard of care shall not have his testimony excluded on the ground that he does not practice in this Commonwealth. A witness shall be qualified to testify as an expert on the standard of care if he demonstrates expert knowledge of the standards of the defendant’s specialty and of what conduct conforms or fails to conform to those standards and if he has had active clinical practice in either the defendant’s specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.The provisions of this section shall apply to expert witnesses testifying on the standard of care as it relates to professional services in nursing homes.
    2. In any action for damages resulting from medical malpractice, any issue as to the standard of care to be applied shall be determined by the jury, or the court trying the case without a jury.
    3. In any action described in this section, each party may designate, identify, or call to testify at trial no more than two expert witnesses per medical discipline on any issue presented. The court may permit a party, for good cause shown, to designate, identify, or call to testify at trial additional expert witnesses. The number of treating health care providers who may serve as expert witnesses pursuant to § 8.01-399 shall not be limited pursuant to this subsection, except for good cause shown. If the court permits a party to designate, identify, or call additional experts, the court may order that party to pay all costs incurred in the discovery of such additional experts. For good cause shown, pursuant to the Rules of Supreme Court of Virginia, the court may limit the number of expert witnesses other than those identified in this subsection whom a party may designate, identify, or call to testify at trial.

    History. 1979, c. 325; 1980, c. 164; 1989, cc. 146, 729; 1992, c. 240; 2003, c. 251; 2008, cc. 125, 169, 205; 2015, cc. 310, 361; 2020, c. 945.

    The 2003 amendments.

    The 2003 amendment by c. 251 added subsection C.

    The 2008 amendments.

    The 2008 amendment by c. 125 inserted “or nurse” in the second sentence and inserted the fourth sentence in the first paragraph in subsection A.

    The 2008 amendments by cc. 169 and 205 are identical, and added the last paragraph of subsection A.

    The 2015 amendments.

    The 2015 amendments by cc. 310 and 361 are identical, and in subsection A, substituted “health care provider” for “physician or nurse,” and “field of practice” for “field of medicine” in the second sentence, substituted “person who, but for the lack of a Virginia license, would be defined as a health care provider under this chapter, provided that such person” for “physician who” in the third sentence; and deleted the former fourth sentence, which read “This presumption shall also apply to any nurse licensed by a state participating in the Nurse Licensure Compact.”

    The 2020 amendments.

    The 2020 amendment by c. 945 inserted “clinical social worker” near the beginning of the first sentence of subsection A.

    Law Review.

    For comment on the abolition in Virginia of the locality rule in medical malpractice, see 13 U. Rich. L. Rev. 927 (1979).

    For survey of Virginia law on torts for the year 1978-1979, see 66 Va. L. Rev. 375 (1980).

    For note on the erosion of the locality rule and the qualification of experts testifying in medical malpractice suits in Virginia, see 4 G.M.U. L. Rev. 99 (1981).

    For article on statewide standard of care in medical malpractice cases, see 18 U. Rich. L. Rev. 361 (1984).

    For article on the admissibility of written health care standards in medical and hospital negligence actions in Virginia, see 18 U. Rich. L. Rev. 725 (1984).

    For survey on medical malpractice in Virginia for 1989, see 23 U. Rich. L. Rev. 731 (1989).

    For an article, “Civil Practice and Procedure,” see 31 U. Rich. L. Rev. 991 (1997).

    For an article, “The Quiet Demise of Deference to Custom: Malpractice Law at the Millenium,” see 57 Wash. & Lee L. Rev. 163 (2000).

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

    For article on medical malpractice law for the year 2007-2008, see 43 U. Rich. L. Rev. 227 (2008).

    For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

    For article, “Medical Malpractice Law,” see 45 U. Rich. L. Rev. 319 (2010).

    Michie’s Jurisprudence.

    For related discussion, see 7B M.J. Evidence, §§ 167, 170, 172.

    CASE NOTES

    Analysis

    I.General Consideration.

    This section does not require a plaintiff to present expert testimony in all medical malpractice actions. Dickerson v. Fatehi, 253 Va. 324 , 484 S.E.2d 880, 1997 Va. LEXIS 46 (1997).

    Retroactivity of witness qualification provisions. —

    The current provisions of this section regarding the admissibility of the testimony of expert witnesses from outside of Virginia are procedural, rather than substantive, and, therefore, were applicable to a pending action rather than the version of the statute in effect in 1979, when the alleged malpractice occurred. Gaynor v. OG/GYN Specialists, Ltd., 51 F. Supp. 2d 718, 1999 U.S. Dist. LEXIS 8382 (W.D. Va. 1999).

    Most significant element about this section is that expertise in a medical malpractice case does not have to come from an individual practicing in the same specialty which is the subject matter of the cause of action. Daniel v. Jones, 39 F. Supp. 2d 635, 1999 U.S. Dist. LEXIS 10661 (E.D. Va. 1999), aff'd, 213 F.3d 630, 2000 U.S. App. LEXIS 16528 (4th Cir. 2000).

    Neonatologist who established his knowledge of the Virginia standard of care in dealing with a pregnant woman in a high-risk pregnancy was qualified to testify in obstetrical case, when issue was how to prevent preterm labor and extend the pregnancy in order to assure the more complete development of the fetus. Daniel v. Jones, 39 F. Supp. 2d 635, 1999 U.S. Dist. LEXIS 10661 (E.D. Va. 1999), aff'd, 213 F.3d 630, 2000 U.S. App. LEXIS 16528 (4th Cir. 2000).

    Where nothing in the record contradicted testimony of defense medical expert, an obstetrician-gynecologist, that the standards applicable to the performance of a pelvic examination by an obstetrician-gynecologist and an emergency room physician are the same; that expert’s lack of knowledge regarding certain procedures of emergency medicine might disqualify him from rendering expert testimony as to those procedures, but that lack of knowledge does not preclude him from giving expert testimony on procedures which are common to both emergency medicine and the field of obstetrics-gynecology and are performed according to the same standard of care. Sami v. Varn, 260 Va. 280 , 535 S.E.2d 172, 2000 Va. LEXIS 125 (2000).

    A medical opinion based on a “possibility” is irrelevant, purely speculative and, hence, inadmissible. In order for such testimony to become relevant, it must be brought out of the realm of speculation and into the realm of reasonable probability; the law in this area deals in “probabilities” and not “possibilities.” Fairfax Hosp. Sys. v. Curtis, 249 Va. 531 , 457 S.E.2d 66, 1995 Va. LEXIS 60 (1995).

    Experts’ reports were not sufficient to establish a prima facie case of medical malpractice. —

    United States’ motion for summary judgment was granted in a widow’s medical malpractice action filed under the Federal Tort Claims Act, 28 U.S.C.S. §§ 2671- 2680, which alleged that had doctors at a veterans’ hospital diagnosed her husband’s lung cancer earlier, his treatment would have been more successful, because even if the experts’ testimony was considered, their reports were not sufficient to establish the necessary prima facie case. Neither of the experts’ reports set forth the applicable standard of care, and neither expert specified what possibly more successful treatment opportunities were foregone by a late diagnosis; while both reports attempted to link omissions by the United States’ agents to harm suffered by the widow’s husband resulting from a late diagnosis, the causation analysis was not set forth in terms of a reasonable degree of medical certainty and was merely speculative and conclusory. Sharpe v. United States, 230 F.R.D. 452, 2005 U.S. Dist. LEXIS 21222 (E.D. Va. 2005).

    Completion of licensure requirements sufficient to testify as expert. —

    Where, the applicable standard is that of the entire Commonwealth, where the proffered witness has lived, worked, taught, and practiced, and the doctor went so far as to complete the requirements for licensure as a general practitioner of medicine in Virginia, the field with which his familiarity must be demonstrated if he is to testify as an expert, this is a sufficient factual showing to establish, prima facie, that he possessed the necessary knowledge, skill, and experience to testify as an expert to the appropriate standard of care in his field when he was admitted to practice in it. Grubb v. Hocker, 229 Va. 172 , 326 S.E.2d 698, 1985 Va. LEXIS 190 (1985).

    Lack of current practice no basis for excluding testimony. —

    Because of the 1980 amendment to this section, it was clear that the doctor’s lack of current practice in Virginia formed no basis, in itself, for the exclusion of his testimony. The lapse of his Virginia license and his absence from the State did not serve to negate the familiarity with the applicable standard which he demonstrated by qualifying for admission to practice in Virginia. Indeed, he testified to continuing contacts, visits and study which would only serve to maintain the familiarity with professional standards which he had previously acquired. Grubb v. Hocker, 229 Va. 172 , 326 S.E.2d 698, 1985 Va. LEXIS 190 (1985).

    Written opinion of review panel not sufficient as expert testimony. —

    Expert testimony is ordinarily required in malpractice cases on (1) the standard of care, (2) a deviation from the standard, and (3) causation. The written opinion of the medical malpractice review panel is not in itself sufficient to fulfill those requirements. Raines v. Lutz, 231 Va. 110 , 341 S.E.2d 194, 1986 Va. LEXIS 171 (1986).

    Health care providers are required by law to possess and exercise only that degree of skill and diligence practiced by a reasonably prudent practitioner in the same field of practice or specialty in Virginia. Expert testimony is ordinarily necessary to establish the appropriate standard of care, to establish a deviation from the standard, and to establish that such a deviation was the proximate cause of the claimed damages. Raines v. Lutz, 231 Va. 110 , 341 S.E.2d 194, 1986 Va. LEXIS 171 (1986).

    As to actions for “wrongful pregnancy,” see Miller v. Johnson, 231 Va. 177 , 343 S.E.2d 301, 1986 Va. LEXIS 179 (1986).

    District judge may reverse the magistrate judge’s order with respect to plaintiff’s expert if the factual findings are clearly erroneous or legal conclusions are contrary to law. Peck v. Tegtmeyer, 834 F. Supp. 903, 1992 U.S. Dist. LEXIS 21870 (W.D. Va. 1992), aff'd, 4 F.3d 985, 1993 U.S. App. LEXIS 37919 (4th Cir. 1993).

    II.Standard of Care.

    Only one standard of care. —

    The Virginia Medical Malpractice Act makes no distinction between a mechanical standard of care and a general professional standard of care; clearly there is only one standard of care: that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in the Commonwealth. Peck v. Tegtmeyer, 834 F. Supp. 903, 1992 U.S. Dist. LEXIS 21870 (W.D. Va. 1992), aff'd, 4 F.3d 985, 1993 U.S. App. LEXIS 37919 (4th Cir. 1993).

    And language in the section vitiates the common-law rule that one who assumes a duty must discharge that duty with reasonable care. Didato v. Strehler, 262 Va. 617 , 554 S.E.2d 42, 2001 Va. LEXIS 119 (2001).

    “Reasonably prudent practitioner” standard. —

    A physician must demonstrate that degree of skill and diligence in the diagnosis and treatment of the patient employed by a reasonably prudent practitioner in his field of practice or specialty. Brown v. Koulizakis, 229 Va. 524 , 331 S.E.2d 440, 1985 Va. LEXIS 227 (1985).

    Expert testimony not always necessary. —

    Nothing in this section requires a plaintiff to present in all medical malpractice actions expert testimony to establish that degree of skill and diligence practiced by a reasonably prudent practitioner. Beverly Enterprises-Virginia, Inc. v. Nichols, 247 Va. 264 , 441 S.E.2d 1, 10 Va. Law Rep. 995, 1994 Va. LEXIS 27 (1994).

    Expert testimony required on standard of nursing home care. —

    Alleged substandard medical and professional treatment at nursing home was not within the common knowledge and understanding of a jury; as such, the administrator of the estate of a former nursing home patient could not establish the required elements of the claims without having expert testimony in support thereof. Perdieu v. Blackstone Family Practice Ctr., Inc., 264 Va. 408 , 568 S.E.2d 703, 2002 Va. LEXIS 98 (2002).

    Psychologist not qualified to render opinion on standard of care applicable to medical personnel at jail. —

    In a medical malpractice action brought against medical personnel at a jail by an administrator of the estate of a pretrial detainee who went into cardiac arrest three days after his arrest and died from excited delirium due to chronic schizophrenia with a contributing cause of congestive cardiomyopathy, a licensed clinical psychologist was not qualified under subsection A of § 8.01-581.20 to render an expert opinion on the standard of care because he was not licensed to practice psychology or any medical specialty in Virginia, he had not received any formal training in Virginia, and he had not received any training regarding the provision of medical or mental health care in a correctional setting. Additionally, because the psychologist was not a medical doctor, he was not qualified to render an expert opinion on the issue of proximate causation. Estate of Hezekiah Harvey v. Roanoke City Sheriff's Office, 585 F. Supp. 2d 844, 2008 U.S. Dist. LEXIS 89966 (W.D. Va. 2008).

    Nursing home administrator qualified as expert. —

    Trial court improperly found that a nursing home’s expert did not have an active clinical practice as required by subsection A of § 8.01-581.20 where the specific inclusion of nursing homes, their services, and their directors and employees in the definitions of health care and health care provider leant strong support to the conclusion that the legislature intended nursing-home administrators to constitute those with active clinical practice qualified to offer expert testimony regarding the standard of care for professional services in nursing homes. Our Lady of Peace, Inc. v. Morgan, 297 Va. 832 , 832 S.E.2d 15, 2019 Va. LEXIS 105 (2019).

    Physician is not an insurer of the success of his diagnosis and treatment nor is he held to the highest degree of care known to his profession. The mere fact that he has failed to effect a cure or that his diagnosis and treatment have been detrimental to the patient’s health does not raise a presumption of negligence. Brown v. Koulizakis, 229 Va. 524 , 331 S.E.2d 440, 1985 Va. LEXIS 227 (1985).

    Vicarious liability of surgeon for nurse’s negligence. —

    Although the court granted a surgeon’s motion for summary judgment on the issue of whether the surgeon violated the applicable standard of care because the administrator of the estate of a deceased patient provided no evidence that the surgeon personally violated any applicable standard of care, nevertheless the court denied the motion regarding the issue of whether the surgeon could be held vicariously liable under the facts for the negligence of the nurse anesthetist who assisted in the operation; there was a genuine issue of material fact as to whether the nurse anesthetist was the temporary agent of the surgeon with regard to the surgery, after which the patient aspirated vomit and developed respiratory distress that resulted in the patient’s death. Blevins v. Sheshadri, 313 F. Supp. 2d 598, 2004 U.S. Dist. LEXIS 6403 (W.D. Va. 2004).

    Standard of care breached. —

    Evidence was sufficient to establish that, in performing a tummy tuck on a patient, the doctor breached the standard of care and that such breach was a proximate cause of the patient’s injury; thus, the trial court properly refused to set aside the jury verdict in the patient’s favor. The opinion of the patient’s expert that the doctor breached the standard of care by predetermining the amount of tissue to be removed and that too much tissue was removed leading to necrosis established that the doctor breached the standard of care and that the breach was a proximate cause of the patient’s injury. Bitar v. Rahman, 272 Va. 130 , 630 S.E.2d 319, 2006 Va. LEXIS 66 (2006).

    Applicability in diversity proceeding. —

    Qualification requirements for a standard of care expert as set forth in this section are applicable to experts’ qualifications in a diversity case. Peck v. Tegtmeyer, 834 F. Supp. 903, 1992 U.S. Dist. LEXIS 21870 (W.D. Va. 1992), aff'd, 4 F.3d 985, 1993 U.S. App. LEXIS 37919 (4th Cir. 1993).

    Error in instructing the jury that it could apply the local standard of care was not harmless, where the defendant had observed or should have observed the patient’s jaundice when he first examined him, and the jury had heard evidence that, under such circumstances, the statewide standard of care required a bilirubin test while the local standard did not; notwithstanding the absence of evidence that the local standard was the more appropriate measure of the doctor’s duty to his or her patient, the jury could have been led by the erroneous instruction to conclude that, because the defendant’s expert witnesses had testified that he had complied with the local standard, he was not guilty of actionable negligence. Rhoades v. Painter, 234 Va. 20 , 360 S.E.2d 174, 4 Va. Law Rep. 418, 1987 Va. LEXIS 242 (1987).

    Qualifications for radiology expert. —

    Because radiation physicist had never had a clinical practice of any kind, he did not meet the statutory requirements for qualification as an expert on the standard of care in radiology. Peck v. Tegtmeyer, 834 F. Supp. 903, 1992 U.S. Dist. LEXIS 21870 (W.D. Va. 1992), aff'd, 4 F.3d 985, 1993 U.S. App. LEXIS 37919 (4th Cir. 1993).

    Presumption physician knows standard of care. —

    Even though the surgery involved removal of a cyst on the patient’s urachus, the applicable standard of care involved a bladder injury that occurred because the doctor apparently put surgical staples in the dome of the bladder during the cyst surgery and did not determine that he had done so, and the expert witnesses were qualified to testify about bladder injury resulting from the use of surgical stapler, especially since they were presumed to know the standard of care in that area of medicine since they specialized in the same field as the doctor, obstetrics and gynecology. Wright v. Kaye, 267 Va. 510 , 593 S.E.2d 307, 2004 Va. LEXIS 48 (2004).

    Lack of recent work in medical specialty. —

    Expert who was a neurologist was not qualified pursuant to § 8.01-581.20 to testify about the standard of care and breach of the standard of care concerning intraoperative negligence in the patient’s case since the expert had not worked in that area or had hospital privileges in that regard in the last four years. However, the expert was qualified to testify about alleged postoperative negligence since the expert’s field of medicine and the field of medicine of the surgeon who performed the patient’s surgery, orthopedics, were related medical fields. Lloyd v. Kime, 275 Va. 98 , 654 S.E.2d 563, 2008 Va. LEXIS 13 (2008).

    Active clinical practice not found. —

    Doctor’s employment as director of a helicopter transport service which transported sick and injured patients could not be deemed an active clinical practice within the contemplation of this section. Fairfax Hosp. Sys. v. Curtis, 249 Va. 531 , 457 S.E.2d 66, 1995 Va. LEXIS 60 (1995).

    Trial court erred in allowing an expert to testify in favor of defendants in a medical malpractice action; the expert failed to meet the requirement of actual practice of obstetrics within one year of the claimed negligence by defendants, as the expert’s experience as a professor of obstetrics did not satisfy the actual practice requirement. Hinkley v. Koehler, 269 Va. 82 , 606 S.E.2d 803, 2005 Va. LEXIS 1 (2005).

    Expert testimony properly excluded. —

    Trial court properly excluded certain expert testimony because the hospital’s expert witnesses could not say within a reasonable degree of medical probability that certain factors associated with a near-sudden infant death syndrome event specifically caused infant’s cardiopulmonary arrest. Fairfax Hosp. Sys. v. Curtis, 249 Va. 531 , 457 S.E.2d 66, 1995 Va. LEXIS 60 (1995).

    The trial court did not abuse its discretion by refusing to permit the physician to qualify as an expert witness on the defendant’s specialty, orthopaedic surgery as it involves the procedure of chemonucleolysis. The physician had never performed the procedure nor had he observed an actual procedure being performed. Even though the physician had received a certificate for participating in a seminar on chemonucleolysis, such limited instruction was not sufficient to conclude the physician was qualified to render opinions on the subject. Lawson v. Elkins, 252 Va. 352 , 477 S.E.2d 510, 1996 Va. LEXIS 98 (1996).

    Expert testimony properly allowed. —

    In a medical malpractice suit, it was not an abuse of discretion to allow an obstetrician-gynecologist to testify as an expert regarding the standard of care for a nurse’s postpartum monitoring of a high-risk patient with preeclampsia, because it did not appear that the obstetrician-gynecologist was not qualified to testify as an expert in the standard of care under Virginia law since the obstetrician-gynecologist performed postpartum monitoring of high-risk patients with preeclampsia, the same procedure in the same context in which it was alleged that the hospital and its nurses deviated from the standard of care. Creekmore v. Maryview Hosp., 662 F.3d 686, 2011 U.S. App. LEXIS 24307 (4th Cir. 2011).

    CIRCUIT COURT OPINIONS

    Who may testify on standard of care. —

    Registered nurse with extensive neonatal intensive care unit (NICU) training was allowed to provide expert testimony on the standard of care required for monitoring a baby’s circulation and the peripheral IV (PIV) line and whether that standard was breached; she had provided care to approximately 100 neonatal infants, she had an active clinical practice involving newborn babies in 2017, and the court held that whether the baby was in the NICU or being transported did not impact the importance of monitoring the PIV line. Garcia v. Culpeper Reg'l Health Sys., 107 Va. Cir. 466, 2021 Va. Cir. LEXIS 64 (Culpeper County Apr. 16, 2021).

    Presumption physician knows standard of care. —

    In a medical malpractice action, because the relevant procedure at issue involved the type of detailed orders that a physician would leave medical residents and nursing staff regarding the post-operative care of a patient, despite the expert’s alleged lack of experience in performing surgeries in the field of urology, he was presumed to be familiar with the standard of care required by urologists who performed surgery and the relevant procedure involving the type of detailed orders that a physician would leave medical residents and nursing staff regarding the post-operative care of a patient; thus, he was allowed to testify for plaintiff patient. Moolchandani v. Sentara Hosp., 68 Va. Cir. 293, 2005 Va. Cir. LEXIS 235 (Norfolk July 28, 2005).

    Physician’s motion in limine to exclude a doctor from testifying as to the Virginia standard of care was denied because the physician failed to report the presumption that the doctor knew the Virginia standard of care. Mitchell v. Cox, 98 Va. Cir. 147, 2018 Va. Cir. LEXIS 17 (Lee County Feb. 12, 2018).

    Doctor’s expert was presumed to know the standard of care in Virginia because the doctor established that the expert was licensed to practice in Virginia, and a patient produced not a scintilla of evidence on the point; simply because the expert testified that he did not know the standard of care in Northern Virginia did not disqualify him from testifying as to the standard of care in Southwest Virginia. Mitchell v. Cox, 2019 Va. Cir. LEXIS 347 (Wise County Jan. 17, 2019).

    Physician’s duty to patient. —

    In an inmate’s complaint regarding the injuries he claimed to have received while in the city jail, sheriff’s demurrer and the plea in bar as to Count I were sustained because the sheriff made medical care available to the inmate; the physicians were not the sheriff’s servants, but independent contractors; the sheriff could not diagnose, treat, and attempt to cure the inmate’s broken bones and brain injury as the sheriff would be practicing medicine without a license; and sheriff could not have the duty of a physician to use the degree of skill and diligence in the care and treatment of a patient that a reasonably prudent physician in his field of practice would have used in the circumstances. Quigley v. McCabe, 91 Va. Cir. 397, 2015 Va. Cir. LEXIS 243 (Norfolk Nov. 30, 2015).

    Summary judgement denied. —

    Summary judgment for defendants in a medical malpractice action solely on grounds that plaintiff had not designated an independent expert held either not warranted or premature. Keegan v. Kaiser Permanente, 58 Va. Cir. 299, 2002 Va. Cir. LEXIS 53 (Fairfax County Mar. 6, 2002).

    Who may testify on standard of care. —

    Motions by health care providers to exclude testimony given by a nurse employed by provider, whom plaintiff executor designated as an expert witness, regarding standards of care in a medical malpractice action were granted; under § 8.01-581.20 , the standard of care in medical malpractice cases is to be determined through the opinion testimony of qualified expert witnesses practicing medicine in the Commonwealth, and defendants were excluded from providing this type of expert testimony, relating to the standards of care as applied to other potential defendants. Dennis v. Annaburg Manor, 57 Va. Cir. 252, 2002 Va. Cir. LEXIS 202 (Prince William County Jan. 4, 2002).

    Negligent hiring, supervision, and retention. —

    Since the standard of care applicable to a hospital could have included the hiring, retention, and supervision of its employees, the trial court could not rule as a matter of law that, in patient’s medical malpractice action, defendants, a hospital corporation and a health care corporation, could not be held liable for negligent hiring, retention, and supervision of its employees; resolution of the issue depended on the nature of the expert testimony that the patient might offer regarding defendants’ standard of care. Elliott v. Cook, 60 Va. Cir. 1, 2002 Va. Cir. LEXIS 121 (Loudoun County Jan. 7, 2002).

    Psychologist fabricated notes. —

    Where the psychologist, after having the psychologist’s notes from the therapy sessions between the former husband and former wife subpoenaed in the fraud and defamation action between the former husband and former wife, allegedly destroyed the notes and produced fabricated ones, and the trial court granted the psychologist’s demurrer as to the former husband’s malpractice claim alleging conflict of interest, the husband was permitted to replead the malpractice claim to state that the psychologist breached the standard of care when the psychologist destroyed the notes and fabricated new ones. Ranney v. Nelson, 65 Va. Cir. 31, 2004 Va. Cir. LEXIS 112 (Fairfax County Apr. 20, 2004).

    Limitation on number of experts presented. —

    In a medical malpractice action, a patient was entitled to limit the experts presented at trial by defendants, a doctor and others; while defendants wished to present eight experts, subsection C of § 8.01-581.20 did not entitle defendants to call two expert witnesses per medical discipline on any issue presented as the statutory language used was “no more than” as opposed to “at least.” Smith v. Dixit, 78 Va. Cir. 34, 2008 Va. Cir. LEXIS 166 (Norfolk Nov. 14, 2008).

    Eligibility to testify. —

    To the extent that one of a child’s experts in a medical malpractice action was eligible for licensure in Virginia, the expert was eligible to testify pursuant to § 8.01-581.20 A; however, the expert’s testimony was limited to the extent that it would be cumulative. McCaffrey v. Va. Women's Ctr., Inc., 59 Va. Cir. 266, 2002 Va. Cir. LEXIS 380 (Richmond July 17, 2002).

    In a medical malpractice action, the patient’s proffered expert was found to have an active clinical practice in neurosurgery or related field within one year of alleged negligence with regard to all allegedly breached duties except for duty required during surgery; it was unclear whether she engaged in surgical clinical practice of a cavernous hemangioma or other intra-cranial surgery within one year of the patient’s surgery. Hartman v. Kleiner, 69 Va. Cir. 246, 2005 Va. Cir. LEXIS 152 (Roanoke Nov. 2, 2005).

    In a medical malpractice case, the court deferred consideration of defendant’s motion in limine barring plaintiff’s standard of care experts from testifying because both parties presented their arguments on rather broadly based representations of what their standard of care experts would say with respect to the crossover standard of care for the diagnosis of plaintiff’s psychiatric brain disorder and the treatment of same by a psychiatric medication approach; and the court preferred to hold off on any ruling on the qualifications of the experts to testify as standard of care experts until evidence could be heard either in a pre-trial proceeding or in the trial itself out of the presence of the jury. Jones v. Margolis, 107 Va. Cir. 443, 2005 Va. Cir. LEXIS 413 (Essex County Aug. 22, 2005).

    Patient’s motion in limine regarding voir dire to foreign-licensed physicians was granted to the extent that the proposed expert witnesses satisfied the statutory requirements and testified as to the specialty or field of medicine in which he or she was qualified for licensure in Virginia. Taylor v. O'Neil, 92 Va. Cir. 303, 2016 Va. Cir. LEXIS 13 (Norfolk Feb. 12, 2016).

    Doctor’s experience satisfied the active clinical practice test because the doctor provided neurology coverage to a hospital emergency room in the same year a patient’s stroke occurred, and she regularly saw patients in the emergency department for evaluation, stroke assessment, tPA potential, and admission; therefore, the motion in limine to exclude the doctor from testifying on the standard of care in emergency departments was denied. Mitchell v. Cox, 98 Va. Cir. 147, 2018 Va. Cir. LEXIS 17 (Lee County Feb. 12, 2018).

    Nurse not qualified to testify as to doctor’s standard of care. —

    Because the nurse was not a licensed physician, it was not presumed that she had knowledge regarding the standard of care applicable to the defendant physicians in this case, plus she had neither the knowledge nor the active clinical practice of a physician neurologist, and she was not otherwise competent to testify as an expert; the claim that a bedsore was not a physical injury was rejected, and the parents could not have reasonably believed that the nurse would qualify as an expert regarding the applicable standard of care when they requested service of process on defendants. Susko v. Toor, 91 Va. Cir. 372, 2015 Va. Cir. LEXIS 169 (Norfolk Nov. 12, 2015).

    Foreign licensed physicians. —

    In a medical malpractice action, the court prohibited improper voir dire questioning regarding any of plaintiff’s experts lack of contacts with the Commonwealth, lack of licensure in the Commonwealth, etc. However, defense counsel had the right to bring out where in fact the opposing experts lived, worked, and or received their educations. Teeuwen v. Birk, 94 Va. Cir. 166, 2016 Va. Cir. LEXIS 128 (Chesapeake Aug. 19, 2016).

    Expert required to have experience with laparoscopic procedures. —

    In a medical malpractice action alleging negligence during a laparoscopic colectomy, the patient’s first expert was not allowed to testify because he was experienced in colorectal surgery, but had no experience in laparoscopic procedures; the patient’s second expert was allowed to testify because he had experience with how laparoscopy impaired or enhanced a surgeon’s ability to visualize internal organs. Schikman v. Branum, 71 Va. Cir. 275, 2006 Va. Cir. LEXIS 258 (Rockingham County July 14, 2006).

    Certification of expert. —

    Administratrix’s counsel could reasonably believe his expert was qualified to offer an opinion about those who provided post-operative care because hospital employees preformed procedures within the expert’s field of knowledge; given the expert’s specialty and the fact that all employees discharged responsibilities about which he would appear to be qualified to testify, the employees, hospital, and medical practice failed to show he was not qualified to provide the certification. Wilder v. Children's Hosp. of the King's Daughters, 2017 Va. Cir. LEXIS 172 (Norfolk Sept. 20, 2017).

    CASE NOTES

    Expert testimony improperly excluded. —

    Testimony which a patient’s expert witness gave in a medical malpractice action the patient filed against her doctor showed that even though the expert was not licensed to practice medicine in Virginia, he was aware of the standard of care used in Virginia to perform surgery of the type the patient received and that he met the standards imposed by § 8.01-581.20 for testifying as an expert witness, and the trial court abused its discretion when it granted the doctor’s motion to strike the patient’s expert’s testimony. Christian v. Surgical Specialists of Richmond, Ltd., 268 Va. 60 , 596 S.E.2d 522, 2004 Va. LEXIS 79 (2004).

    Exclusion of the estate’s proffered medical expert in a wrongful death action was erroneous, because the expert met the criteria in § 8.01-581.20 ; the expert’s credentials satisfied the educational and examination requirements for licensure in Virginia and thus, the expert was presumed to know the statewide standard of care in the expert’s specialty, and expert was engaged in active clinical practice where the expert directly treated patients who presented the same symptoms as the decedent, within one year of the alleged omission in the case. Jackson v. Qureshi, 277 Va. 114 , 671 S.E.2d 163, 2009 Va. LEXIS 9 (2009).

    Physician was qualified to testify as an expert on the physician’s own behalf in disciplinary proceedings because (1) the physician’s education, training, and experience qualified the physician, and (2) an ultimate finding that the physician violated the standard of care was no basis to find the physician unqualified. Va. Bd. of Med. v. Zackrison, 67 Va. App. 461, 796 S.E.2d 866, 2017 Va. App. LEXIS 69 (2017).

    Circuit court abused its discretion in refusing to qualify a proposed expert witness in a medical malpractice action because the witness satisfied both the knowledge and active clinical practice requirements in that the witness, as a board-certified Virginia pediatrician, was presumed to know the statewide standard of care for a pediatrician practicing in Virginia, and within the one-year time frame, the witness was engaged in an ongoing clinical practice, involving the procedure that a pediatrician was alleged to have performed negligently. Holt v. Chalmeta, 295 Va. 22 , 809 S.E.2d 636, 2018 Va. LEXIS 7 (2018).

    Question within experience of jury. —

    The question of whether a reasonably prudent nursing home would permit its employees to leave a tray of food with an unattended patient who had a history of choking and who was unable to eat without assistance was certainly within the common knowledge and experience of a jury. Beverly Enterprises-Virginia, Inc. v. Nichols, 247 Va. 264 , 441 S.E.2d 1, 10 Va. Law Rep. 995, 1994 Va. LEXIS 27 (1994).

    The standard of care in a medical malpractice action is a matter of substantive law and thus federal courts are bound to apply the law of the Commonwealth. Chapman v. Edgerton, 529 F. Supp. 519, 1982 U.S. Dist. LEXIS 11321 (W.D. Va. 1982).

    Statutory standard of care not retroactive. —

    As the standard of care in medical malpractice actions is substantive and not procedural, there is no statutory standard of care applicable to actions which arose prior to the enactment of section setting forth same. Chapman v. Edgerton, 529 F. Supp. 519, 1982 U.S. Dist. LEXIS 11321 (W.D. Va. 1982).

    The standard of care required of a plastic surgeon is that of other like specialists in good standing, in the same or similar localities as the defendant. Chapman v. Edgerton, 529 F. Supp. 519, 1982 U.S. Dist. LEXIS 11321 (W.D. Va. 1982).

    OPINIONS OF THE ATTORNEY GENERAL

    Standard of care. —

    A medical malpractice review panel or a finder of fact must apply the standard of care for health care providers based on that degree of skill and diligence practiced by comparable health care providers throughout the Commonwealth, as well as the testimony of expert witnesses regarding such standard of care. However, Virginia law permits proof of local customs to determine the appropriate standard. Further, the General Assembly has not adopted either a national standard or a particular organization’s standard of care. See opinion of Attorney General to The Honorable Linda T. Puller, Member, Senate of Virginia, 09-032, 2009 Va. AG LEXIS 33 (7/27/09).

    § 8.01-581.20:1. Admissibility of expressions of sympathy.

    In any civil action brought by an alleged victim of an unanticipated outcome of health care, or in any arbitration or medical malpractice review panel proceeding related to such civil action, the portion of statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence, together with apologies that are made by a health care provider or an agent of a health care provider to the patient, a relative of the patient, or a representative of the patient, shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. A statement of fault that is part of or in addition to any of the above shall not be made inadmissible by this section.

    For purposes of this section, unless the context otherwise requires:

    “Health care” has the same definition as provided in § 8.01-581.1 .

    “Health care provider” has the same definition as provided in § 8.01-581.1 .

    “Relative” means a patient’s spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half-brother, half-sister, or spouse’s parents. In addition, “relative” includes any person who has a family-type relationship with the patient.

    “Representative” means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a medical power of attorney, or any person recognized in law or custom as a patient’s agent.

    “Unanticipated outcome” means the outcome of the delivery of health care that differs from an expected result.

    History. 2005, cc. 649, 692; 2009, c. 414.

    The 2009 amendments.

    The 2009 amendment by c. 414 substituted “commiseration, condolence, compassion, or a general sense of benevolence, together with apologies that” for “or general sense of benevolence, which” in the first sentence of the first paragraph.

    Law Review.

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    For 2006 survey article, “Medical Malpractice Law,” see 41 U. Rich. L. Rev. 231 (2006).

    For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

    CIRCUIT COURT OPINIONS

    Admissibility of statement. —

    Statements made by a doctor to the parent of a child were precluded from being introduced into evidence because the statements were expressions of sympathy and benevolence. Deitsch v. Inova Health Care Servs., 2005 Va. Cir. LEXIS 382 (Fairfax County Sept. 30, 2005).

    Chapter 21.2. Mediation.

    § 8.01-581.21. Definitions.

    As used in this chapter:

    “Mediation” means a process in which a mediator facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and to reach a mutually agreeable resolution to their dispute.

    “Mediation program” means a program through which mediators or mediation is made available and includes the director, agents and employees of the program.

    “Mediator” means an impartial third party selected by agreement of the parties to a controversy to assist them in mediation.

    History. 1988, cc. 623, 857; 2002, c. 718.

    The 2002 amendments.

    The 2002 amendment by c. 718 rewrote the definition of “Mediation” which formerly read: “ ‘Mediation’ means the process by which a mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of the controversy and includes all contacts between the mediator and any party or parties, until such time as a resolution is agreed to by the parties or the parties discharge the mediator.”

    OPINIONS OF THE ATTORNEY GENERAL

    Section 15.2-963 controls over general mediation provisions. —

    In light of the specific statutory language regarding mediation of consumer complaints contained in § 15.2-963 , this statute controls over the more general mediation provisions of §§ 8.01-581.21 through 8.01-581.23 and, therefore, §§ 8.01-581.21 through 8.01-581.23 are not applicable to the investigation and mediation activities connected with the resolution of consumer complaints pursuant to § 15.2-963 . See opinion of Attorney General to The Honorable Harvey L. Bryant III, Commonwealth’s Attorney for the City of Virginia Beach, 01-033 (7/30/01).

    § 8.01-581.22. Confidentiality; exceptions.

    All memoranda, work products and other materials contained in the case files of a mediator or mediation program are confidential. Any communication made in or in connection with the mediation, which relates to the controversy being mediated, including screening, intake, and scheduling a mediation, whether made to the mediator, mediation program staff, to a party, or to any other person, is confidential. However, a written mediated agreement signed by the parties shall not be confidential, unless the parties otherwise agree in writing.

    Confidential materials and communications are not subject to disclosure in discovery or in any judicial or administrative proceeding except (i) where all parties to the mediation agree, in writing, to waive the confidentiality, (ii) in a subsequent action between the mediator or mediation program and a party to the mediation for damages arising out of the mediation, (iii) statements, memoranda, materials and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in and actually used in the mediation, (iv) where a threat to inflict bodily injury is made, (v) where communications are intentionally used to plan, attempt to commit, or commit a crime or conceal an ongoing crime, (vi) where an ethics complaint is made against the mediator by a party to the mediation to the extent necessary for the complainant to prove misconduct and the mediator to defend against such complaint, (vii) where communications are sought or offered to prove or disprove a claim or complaint of misconduct or malpractice filed against a party’s legal representative based on conduct occurring during a mediation, (viii) where communications are sought or offered to prove or disprove any of the grounds listed in § 8.01-581.26 in a proceeding to vacate a mediated agreement, or (ix) as provided by law or rule. The use of attorney work product in a mediation shall not result in a waiver of the attorney work product privilege.

    History. 1988, cc. 623, 857; 2002, c. 718; 2013, cc. 283, 383.

    The 2002 amendments.

    The 2002 amendment by c. 718, in the first paragraph, inserted “including screening, intake, and scheduling a mediation,” substituted “mediation program staff, to” for “or,” and deleted “if made at a mediation session” following “person” in the second sentence, and inserted “written” and “signed by the parties” in the final sentence; in the second paragraph, inserted “discovery or in” following “disclosure in,” in clause (ii), inserted “or mediation program” following “mediator,” and deleted “or” at the end, inserted clauses (iv) to (ix), and inserted the final sentence; and added the final paragraph.

    The 2013 amendments.

    The 2013 amendments by cc. 283 and 383 are identical, and deleted the former third paragraph, which read: “Notwithstanding the provisions of this section, in any case where the dispute involves support of the minor children of the parties, financial information, including information contained in the child support guidelines worksheet, and written reasons for any deviation from the guidelines shall be disclosed to each party and the court for the purpose of computing a basic child support amount pursuant to § 20-108.2 .”

    Law Review.

    For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

    For annual survey article, “Family Law,” see 48 U. Rich. L. Rev. 135 (2013).

    CASE NOTES

    Where doctor’s relationship with parties was that of therapist, not mediator, the trial court erred in excluding his testimony pursuant to this section. Anderson v. Anderson, 29 Va. App. 673, 514 S.E.2d 369, 1999 Va. App. LEXIS 268 (1999).

    Confidentiality of settlements of wrongful death claims. —

    Given the salutary purpose of § 8.01-55 , the court could not conceive that the General Assembly intended to permit the confidentiality provisions allowed but not required by § 8.01-581.22 to trump the provisions of § 8.01-55 and, consequently, the right of public access provided for by § 17.1-208 in the context of the records of court approval of the compromise settlement of a wrongful death claim achieved through mediation. Accordingly, the circuit court did not err when the court ruled that in approving the compromise settlements in the present cases, the court was not subject to a de jure requirement under § 8.01-581.22 to place the record, or at least that portion of the record detailing the financial terms of the compromise settlements, under seal. Perreault v. Free Lance-Star, 276 Va. 375 , 666 S.E.2d 352, 2008 Va. LEXIS 96 (2008).

    CIRCUIT COURT OPINIONS

    Mediated agreement open to public inspection. —

    Petitioner’s motion to keep a mediated agreement confidential was denied because the General Assembly indicated its inclination that the public be aware of the expenditure, or decision not to pursue, public funds. Chan v. Commonwealth, 2015 Va. Cir. LEXIS 210 (Charlottesville July 28, 2015).

    Circuit court found that it could not seal settlement terms in infant settlement approvals because infant settlements were conditional pending judicial approval, the Virginia mediation confidentiality statute did not bind the court as it did not participate in the mediation, and infant settlements were not to be automatically sealed absent a particularized harm to a child from open records. Brown v. Tashman, 105 Va. Cir. 152, 2020 Va. Cir. LEXIS 54 (Fairfax County Apr. 21, 2020).

    § 8.01-581.23. Civil immunity.

    When a mediation is provided by a mediator who is certified pursuant to guidelines promulgated by the Judicial Council of Virginia, or who is trained and serves as a mediator through the statewide mediation program established pursuant to § 2.2-1202.1, then that mediator, mediation programs for which that mediator is providing services, and a mediator co-mediating with that mediator shall be immune from civil liability for, or resulting from, any act or omission done or made while engaged in efforts to assist or conduct a mediation, unless the act or omission was made or done in bad faith, with malicious intent or in a manner exhibiting a willful, wanton disregard of the rights, safety or property of another. This language is not intended to abrogate any other immunity that may be applicable to a mediator.

    History. 1988, cc. 623, 857; 2002, c. 718; 2012, cc. 803, 835.

    The 2002 amendments.

    The 2002 amendment by c. 718 rewrote the section, which formerly read: “Mediators and mediation programs shall be immune from civil liability for, or resulting from, any act or omission done or made while engaged in efforts to assist or facilitate a mediation, unless the act or omission was made or done in bad faith, with malicious intent or in a manner exhibiting a willful, wanton disregard of the rights, safety or property of another.”

    The 2012 amendments.

    The 2012 amendments by cc. 803 and 835, cl. 8, are identical, and substituted “§ 2.2-1001(2)” for “§ 2.2-1202.1” in the first sentence.

    § 8.01-581.24. Standards and duties of mediators; confidentiality; liability.

    A mediator selected to conduct a mediation under this chapter may encourage and assist the parties in reaching a resolution of their dispute, but may not compel or coerce the parties into entering into a settlement agreement. A mediator has an obligation to remain impartial and free from conflicts of interest in each case, and to decline to participate further in a case should such partiality or conflict arise. Unless expressly authorized by the disclosing party, the mediator may not disclose to either party information relating to the subject matter of the mediation provided to him in confidence by the other. A mediator shall not disclose information exchanged or observations regarding the conduct and demeanor of the parties and their counsel during the mediation, unless the parties otherwise agree.

    However, where the dispute involves the support of minor children of the parties, the parties shall disclose to each other and to the mediator the information to be used in completing the child support guidelines worksheet required by § 20-108.2 . The guidelines computations and any reasons for deviation shall be incorporated in any written agreement by the parties.

    History. 2002, c. 718.

    § 8.01-581.25. Effect of written settlement agreement.

    If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract. If the mediation involves a case that is filed in court, upon request of all parties and consistent with law and public policy, the court shall incorporate the written agreement into the terms of its final decree disposing of a case. In cases in which the dispute involves support for the minor children of the parties, an order incorporating a written agreement shall also include the child support guidelines worksheet and, if applicable, the written reasons for any deviation from the guidelines. The child support guidelines worksheet shall be attached to the order.

    History. 2002, c. 718.

    § 8.01-581.26. Vacating orders and agreements.

    Upon the filing of an independent action by a party, the court shall vacate a mediated agreement reached in a mediation pursuant to this chapter, or vacate an order incorporating or resulting from such agreement, where:

    1. The agreement was procured by fraud or duress, or is unconscionable;
    2. If property or financial matters in domestic relations cases involving divorce, property, support or the welfare of a child are in dispute, the parties failed to provide substantial full disclosure of all relevant property and financial information; or
    3. There was evident partiality or misconduct by the mediator, prejudicing the rights of any party.For purposes of this section, “misconduct” includes failure of the mediator to inform the parties at the commencement of the mediation process that: (i) the mediator does not provide legal advice, (ii) any mediated agreement may affect the legal rights of the parties, (iii) each party to the mediation has the opportunity to consult with independent legal counsel at any time and is encouraged to do so, and (iv) each party to the mediation should have any draft agreement reviewed by independent counsel prior to signing the agreement.

    History. 2002, c. 718.

    Chapter 22. Receivers, General and Special.

    Article 1. General Receivers.

    § 8.01-582. Appointment of general receivers; their duties; audit of funds.

    Any circuit court may appoint a general receiver of the court, who may be the clerk of the court, and who shall hold his office at its pleasure. The general receiver’s duty shall be, unless it is otherwise specially ordered, to receive, take charge of and hold all moneys paid under any judgment, order or decree of the court, and also to pay out or dispose of same as the court orders or decrees. Moneys held pursuant to this section shall be deemed public deposits as set forth in Chapter 44 (§ 2.2-4400 et seq.) of Title 2.2 and shall be invested in certificates of deposit or time deposits, and in accordance with the provisions of Chapter 45 (§ 2.2-4500 et seq.) of Title 2.2, as ordered by the court. Prior to or at the time of entry of any judgment, order or decree placing moneys under the control of the general receiver for the benefit of any specifically identified beneficiary, the general receiver shall file an affidavit with the court providing the beneficiary’s name, date of birth, and social security number, as well as the proposed dates of final and periodic disbursements. Such affidavit shall be maintained under seal by the clerk unless otherwise ordered by the court, and the information therein shall be used solely for the purposes of financial management and reporting. Orders creating funds pursuant to this section shall include information necessary to make prudent investment and disbursement decisions but shall not include the personal identifying information set forth in the general receiver’s affidavit.

    Unless otherwise ordered by the court, the provisions of this section shall not apply to:

    1. Cash or other money received in lieu of surety on any bond posted in any civil or criminal case, including but not limited to, bail bonds, appeal bonds in appeals from a district court or circuit court, bonds posted in connection with the filing of an attachment, detinue seizure or distress, suspending bonds, and performance bonds;
    2. Cash or other money paid or deposited in the clerk’s office prior to final disposition of the case, including but not limited to interpleaders or eminent domain; or
    3. Cash or other money deposits in lieu of surety on any bond posted in the clerk’s office which is not posted in connection with any civil or criminal case, including bonds posted by executors or administrators.To this end, the general receiver is authorized to verify, receive, and give acquittances for all such moneys, as the court may direct. Any interest which accrues on the funds, minus allowable fees and bond costs, shall be credited and payable to the person or persons entitled to receive such funds.All moneys received under this section are subject to audit by the Auditor of Public Accounts. The Auditor of Public Accounts shall prescribe mandatory record keeping and accounting standards for general receivers.

    History. Code 1950, § 8-725; 1973, c. 354; 1977, c. 617; 1979, c. 498; 1988, c. 553; 1990, c. 414; 1991, c. 635; 1999, c. 198; 2003, c. 97.

    Cross references.

    As to deposit of money under control of court, see § 8.01-600 .

    As to a blanket surety bond plan for state and local employees, see § 2.2-1840.

    As to a blanket surety bond plan for moneys under control of court, see § 2.2-1841.

    The 1999 amendment inserted “shall be deemed public deposits as set forth in Chapter 23 (§ 2.1-359 et seq.) of Title 2.1 and” in the third sentence in the first paragraph.

    The 2003 amendments.

    The 2003 amendment by c. 97, in the first paragraph, added the present fourth and fifth sentences, inserted “but shall not include the personal identifying information set forth in the general receiver’s affidavit” at the end of the current final sentence, and deleted the former last sentence, which read: “The order shall include, except when it is unreasonable, (i) the beneficiary’s social security number and date of birth and (ii) the proposed dates of final and periodic disbursements.”

    Law Review.

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Courts, § 13.

    CIRCUIT COURT OPINIONS

    Petition barred under doctrine of collateral estoppel. —

    Petitioner corporation’s petition for the appointment of a receiver for a defunct corporation was barred under the doctrine of collateral estoppel and was dismissed with prejudice as: (1) the parties were parties to a prior petition in a Norfolk trial court for the appointment of a receiver for the defunct corporation, (2) the ownership of the property had been determined by the Norfolk court, (3) the factual issue was essential to the judgment in the previous litigation, (4) the prior proceeding resulted in a final, valid judgment against the petitioner corporation, and (5) a federal court had held that the Norfolk decree was entitled to full faith and credit under 28 U.S.C.S. § 1738 and had concluded that the petitioner corporation was bound by the Norfolk decree under the doctrine of collateral estoppel. Va. Beach Holding Corp., 61 Va. Cir. 401, 2003 Va. Cir. LEXIS 145 (Virginia Beach Mar. 31, 2003).

    § 8.01-583. How securities taken and kept; power of receivers over same.

    The securities in which under the orders of the court such investments may be made shall be taken in the name of the general receiver and be kept by him, unless otherwise specially ordered. He shall have power to sell, transfer or collect the same, only upon order of the court; and in case of his death, resignation or removal his successor, or any person specially appointed by the court for that purpose, shall have like power.

    Notwithstanding the foregoing paragraph, when a general receiver places funds in a security or investment which is insured by the Federal Deposit Insurance Corporation or other federal insurance agency, the general receiver shall to the extent practicable invest these funds so that insurance coverage is provided by the Federal Deposit Insurance Corporation or other federal insurance agency.

    History. Code 1950, § 8-726; 1977, c. 617; 1988, c. 553; 1990, c. 3.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, § 25.

    § 8.01-584. How dividends and interest collected and invested.

    The general receiver shall collect the dividends and interest on all the securities in which investments have been or may be made, under the orders or decrees of his court, or under the provisions of § 8.01-582 , when and as often as the same may become due and payable thereon, and shall invest the same in like securities, unless the court has ordered or decreed some other investment or disposition to be made thereof; and in such case he shall invest or dispose of the same as the court shall have ordered or decreed.

    History. Code 1950, § 8-727; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, § 25.

    § 8.01-585. How accounts kept by receivers.

    Each such general receiver shall keep an accurate and particular account of all moneys received, invested and paid out by him, showing the respective amounts to the credit of each case in the court and designating in the items the judgments, orders or decrees of court under which the respective sums have been received, invested or paid out. No later than October 1 of each year, he shall make a report to his court showing the balance to the credit of each case in the court in which money has been received by him, the manner of each case in the court in which money has been received by him, the manner in which it is invested, the amounts received, invested or paid out during the year ending June 30 of the current year, the approximate date on which the moneys held for the beneficiaries will become payable, and the whole amount then invested and subject to the future order of the court. A copy of the annual report shall be recorded in the trust fund order book. He shall, at any time when required by the court or the Auditor of Public Accounts so to do, furnish a statement of the amount subject to the order of the court in any case pending therein and any other information required by the court or the Auditor of Public Accounts as to any money or other property under his control. He shall annually make formal settlement of his accounts before the court or before the commissioner mentioned in § 8.01-617 which settlement shall be recorded as provided in § 8.01-619 .

    History. Code 1950, § 8-728; 1977, c. 617; 1988, c. 553; 1989, c. 69.

    Cross references.

    As to penalty for failure to perform duty required by this section, see § 8.01-590 .

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, §§ 25, 39.

    § 8.01-586. Inquiry as to unknown owners of funds.

    When funds are held because of inability to find the person to whom payable, such receiver may be ordered by the court to make inquiry and due diligence to ascertain such person in order that payment may be made; and for this purpose, and to secure any other relevant information, he shall have power to summon witnesses and take evidence; and he shall report specifically to the court in each annual report, and at any other time when so ordered by the court, the details and results of his efforts.

    History. Code 1950, § 8-729; 1977, c. 617; 1988, c. 553.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, § 25.

    § 8.01-587. Liability of general receivers.

    Except as otherwise ordered by the court, for good cause shown, a general receiver shall be liable for any loss of income which results from his (i) failure to invest any money held by him pursuant to §§ 8.01-582 through 8.01-586 within sixty days of his receipt of the funds or (ii) failure to pay out any money so ordered by the court within sixty days of the court order. He shall be charged with interest from the date of the court order until such investment or payment is made.

    History. Code 1950, § 8-730; 1977, c. 617; 1988, c. 841.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, §§ 26, 27, 28.

    § 8.01-588. Bonds generally.

    A general receiver shall annually give before the court a bond with surety to be approved by it, in such penalty as the court directs, sufficient at least to cover the probable amount under his control in any one year.

    This section shall apply to the clerk if the clerk is appointed such receiver, and his official bond as clerk shall not cover money or property under his control as general receiver.

    History. Code 1950, § 8-731; 1977, c. 617; 1988, c. 841.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, §§ 1, 22, 23.

    § 8.01-588.1. Bonds apportioned to funds under control; annual reports.

    The general receiver shall obtain bond through the Department of the Treasury’s Division of Risk Management. No later than October 1 of each year, he shall report to the Division the amount of moneys under his control pursuant to § 8.01-582 as of June 30 of the current year and shall report the amount he expects to come under his control for the year ending on June 30 of the following year. He shall also report any other information reasonably required by the Division concerning bond coverage of moneys under his control. The cost of the bond shall be apportioned among the funds under his control as of the billing date based on the amount of each owner’s or beneficiary’s moneys. This section shall not apply to any financial institution fulfilling the requirements set out in § 6.2-1003 or § 6.2-1085 .

    History. 1988, c. 841; 2000, cc. 618, 632.

    Editor’s note.

    Effective October 1, 2010, “6.2-1003” was substituted for “6.1-18” and “6.2-1085” was substituted for “6.1-195.82,” to conform to the recodification of Title 6.1 by Acts 2010, c. 794.

    The 2000 amendments.

    The 2000 amendments by cc. 618 and 632 are identical, and substituted “the Treasury’s” for “General Services” in the first sentence.

    § 8.01-589. Compensation and fees; when none allowed.

    1. A general receiver may retain from moneys received and held pursuant to § 8.01-582 , compensation for his services in such amount as the court deems reasonable, but not exceeding:
      1. Ten dollars at receipt of the originating court order to receive funds, deposit funds, and establish files and accounting records with respect to those funds;
      2. Ten dollars when all funds held for a beneficiary or beneficiaries are disbursed;
      3. Ten dollars per draft or check for periodic and final disbursements;
      4. Five percent of the interest income earned;
      5. Ten dollars for remitting funds to the State Treasurer and up to ten dollars per draft for remitting those funds; and
      6. Fifty dollars for conducting a hearing to ascertain the identity or location of trust fund beneficiaries pursuant to § 8.01-586 as the court directs and $50 per hour for an appearance in court.
    2. When direct out-of-pocket expenses are necessary to carry out an order of the court, a general receiver may receive reimbursement for such expenses as the court deems reasonable.
    3. Notwithstanding the foregoing subsections, general receivers shall not deduct fees or otherwise be compensated for services with respect to those funds which should have been reported and then remitted to the State Treasurer in accordance with § 8.01-602 or 55.1-2518 .A general receiver shall promptly report to the court the execution of the bond or bonds required in § 8.01-588 and make the reports and perform the duties required of him. No compensation shall be allowed him until he has performed the duties aforesaid.If such receiver is the clerk of court and if compensation is allowed, it shall be fee and commission income to the office of such clerk in accordance with § 17.1-287 .

    History. Code 1950, § 8-732; 1977, c. 617; 1979, c. 498; 1988, c. 841; 2014, c. 65.

    Editor’s note.

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “55.1-2518” for “55-210.9:1.”

    The 2014 amendments.

    The 2014 amendment by c. 65 in subsection A substituted “retain from moneys received and held pursuant to § 8.01-582 ” for “receive as”; added subdivision A 6 and subsection B; redesignated former subsection B as subsection C; and made minor stylistic changes.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, §§ 29, 30, 33, 39.

    § 8.01-590. Penalty for failure of duty.

    If a general receiver fail to keep the account, or to make out and return the statements required by § 8.01-585 , he shall be subject to a fine of not less than $100 nor more than $1,000 to be imposed by the court at its discretion; and the condition of his official bond shall be taken to embrace the liability of himself and his sureties for any such fine.

    History. Code 1950, § 8-733; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-734 (When interest payable) was deleted as obsolete.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, § 39.

    Article 2. Special Receivers.

    § 8.01-591. Notice required prior to appointment of receiver.

    Whenever the pleadings in any suit make out a proper case for the appointment of a receiver and application is made therefor to any court, such court shall designate the time and place for hearing such application, and shall require reasonable notice thereof to be given to the defendant and to all other parties having a substantial interest, either as owners of or lienors of record and lienors known to the plaintiff, in the subject matter. The court to whom such application is made shall inquire particularly of the applicant as to the parties so substantially interested in the subject matter, and such applicant, for any intentional or wilful failure to disclose fully all material information relating to such inquiry, may be adjudged in contempt of court.

    History. Code 1950, § 8-735; 1977, c. 617.

    Cross references.

    As to settlement of accounts of special receivers, see §§ 8.01-617 through 8.01-619 .

    As to contempt proceedings, see § 18.2-456 et seq.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, § 1.

    CASE NOTES

    Appointment of receiver does not affect vested rights or order of priority of existing liens. S.W. Rawls, Inc. v. Forrest, 224 Va. 264 , 295 S.E.2d 791, 1982 Va. LEXIS 290 (1982).

    CIRCUIT COURT OPINIONS

    Reasonable notice. —

    In a conversion case, defendant’s motions to reconsider and to stay judgment were denied because the notice and motion filed by plaintiff were mailed to defendant’s wife and to a company’s registered agent, and personally served on the registered agent; the notices provided that plaintiff would seek an order imposing a constructive trust over all assets acquired from the converted life insurance proceeds; and the notices provided the specific assets over which the constructive trust was sought; thus, reasonable notice was provided to the wife and the company, and the court had personal jurisdiction over them regarding their alleged property interest in the converted proceeds to appoint the receiver over the assets in the constructive trust. Sherman v. S. Grading, Inc., 96 Va. Cir. 262, 2017 Va. Cir. LEXIS 169 (Chesapeake Sept. 18, 2017).

    § 8.01-592. Notice not required in emergencies.

    Section 8.01-591 shall not apply to those cases in which an emergency exists and it is necessary that a receiver be immediately appointed to preserve the subject matter. In such emergency cases a receiver may be appointed and the order of appointment shall state the emergency and necessity for immediate action, and shall require bond in proper amount of the applicant or someone for him with sufficient surety conditioned to protect and save harmless the owners, lienors and creditors, lien or general, in the subject matter taken over by the receiver, from all damages and injury properly and naturally flowing from such emergency appointment of a receiver.

    History. Code 1950, § 8-736; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, §§ 1, 2, 5, 6.

    § 8.01-593. Subsequent proceedings after emergency appointment.

    Such emergency appointment shall be limited to a period of not longer than thirty days, during which period notice shall be given by the applicant to all parties having a substantial interest, either as owner of or lienor in the subject matter, of any motion to extend such receivership; and upon the hearing on such motion, the court shall hear the matter de novo, and shall discharge such receiver, or shall appoint the same receiver, or other receivers to act with him, or new receivers as to the court may seem right. Unless such receivership shall be so extended, all the rights and powers of such emergency receiver over the subject matter, at the end of such period for which he shall have been appointed, shall cease and determine, and such receiver shall forthwith file with such court an account of his dealing with such estate. The notices required to be given under this section and §§ 8.01-591 and 8.01-592 shall be served, as to residents of this Commonwealth, in any of the modes prescribed by § 8.01-296 , and as to nonresidents of this Commonwealth, or persons unknown, or in any case in which the number of persons to be given notice exceeds thirty, in the manner prescribed by § 8.01-319 .

    History. Code 1950, § 8-737; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-593 provides for two weeks’ notice by publication; therefore the exception in former § 8-737 has been deleted.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, § 6.

    § 8.01-594. Notice not required to parties served with process.

    In any suit matured and docketed in which the bill or petition prays for the appointment of a receiver, no notice shall be required under this article to be given to any defendant upon whom process to answer such bill or petition shall have been served.

    History. Code 1950, § 8-738; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, § 6.

    § 8.01-595. Preparation of list of creditors; notice to them.

    When a receiver has been appointed he shall immediately prepare or cause to be prepared a list of all creditors, lien and general, of the person, firm, corporation or of any other legal or commercial entity for which he is a receiver; and the court may by proper order compel any defendant for whom a receiver is appointed, or any officer of the corporation or of any other legal or commercial entity for whom the receiver is appointed, to furnish or deliver to the receiver a list, duly sworn to, of all creditors, lien or general, together with their addresses if known. The receiver shall then promptly notify by mail each creditor whose name and address has been ascertained of the appointment of the receiver.

    When a permanent receiver is appointed he shall not be required to make a new list of creditors if a temporary receiver or a prior receiver appointed in the same proceedings has already prepared one which is adequate, nor shall he be required to mail other notices to creditors if the prior receiver has given proper notice to the parties entitled thereto.

    History. Code 1950, § 8-739; 1977, c. 617.

    REVISERS’ NOTE

    Added after “. . . of the person, firm, (or) corporation . . .” is the language “. . . or any other legal or commercial entity . . .” The language is an adaptation of the “Long Arm Statute” definition of “person.” See § 8.01-328 . In the second paragraph, language has been added with respect to the list and notice given by a prior receiver so as not to relieve the permanent receiver of these duties if they have not been adequately or properly discharged by his predecessor.

    § 8.01-596. No sale prior to such notification; exceptions.

    No court shall order the sale of any assets of the receivership until a receiver has reported to the court in writing that he has mailed such notices to such creditors at least five days prior to the filing of such report, except that the court may at any time permit the sale of perishable or seasonable goods when necessary to preserve the estate, or may permit the receiver to conduct the business for which he is a receiver as a going business and to sell in the usual course of such business.

    History. Code 1950, § 8-740; 1977, c. 617.

    § 8.01-597. Suits against receivers in certain cases.

    Any receiver of any property appointed by the courts of this Commonwealth may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver was appointed; but the institution or pendency of such suit shall not interfere with or delay a sale by trustees under a deed of trust or a decree of sale for foreclosure of any mortgage upon such property.

    History. Code 1950, § 8-741; 1977, c. 617.

    REVISERS’ NOTE

    The language after the word “delay,” “. . . a sale by trustees under a deed of trust or . . .,” has been added to clarify the last sentence of former § 8-741.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, § 37.

    CASE NOTES

    This section permits suits against court receivers without express permission of the appointing court. Ellis v. Cates, 178 F.2d 791, 1949 U.S. App. LEXIS 2585 (4th Cir. 1949), cert. denied, 339 U.S. 964, 70 S. Ct. 999, 94 L. Ed. 1373, 1950 U.S. LEXIS 2524 (1950); 342 U.S. 870, 72 S. Ct. 113, 96 L. Ed. 655 (1951) (decided under prior law).

    § 8.01-598. Effect of judgment against receiver.

    A judgment against a receiver under § 8.01-597 shall not be a lien on the property or funds under the control of the court, nor shall any execution issue thereon, but upon filing a certified copy of such judgment in the cause in which the receiver was appointed, the court shall direct payment of such judgment in the same manner as if the claim upon which the judgment is based had been proved and allowed in such cause.

    History. Code 1950, § 8-742; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, § 37.

    § 8.01-599. Warrant or motion for judgment against receiver in general district court, when to be tried.

    A warrant or motion for judgment before a general district court under §§ 8.01-597 and 8.01-598 may be tried not less than ten days after service of process.

    History. Code 1950, § 8-743; 1977, c. 617.

    REVISERS’ NOTE

    Since § 16.1-81 ff. permits use of a motion for judgment in the general district courts, the motion for judgment is included in § 8.01-599 .

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, § 37.

    Article 3. General Provisions for Moneys Under Control of Court.

    § 8.01-600. How money under control of court deposited; record kept; liability of clerk.

    1. This section pertains only to money held by the clerk of the circuit court, when the court orders moneys to be held by the clerk pursuant to this section. Where judgment is taken in the circuit court, upon motion of a party for good cause shown, the court may enter an order directing the clerk to hold moneys pursuant to this section. The clerk shall have the duty, unless it is otherwise specially ordered, to receive, take charge of, hold or invest in such manner as the court orders and also to pay out or dispose of these moneys as the court orders or decrees. To this end, the clerk is authorized to verify, receive, and give acquittances for all such moneys as the court may direct.
    2. Orders creating funds pursuant to this section or § 8.01-582 shall include information necessary to make prudent investment and disbursement decisions. The orders shall include, except when it is unreasonable, the proposed dates of periodic and final disbursements. Prior to the entry of the order, the beneficiary or his representative shall file an affidavit with the court providing the beneficiary’s name, date of birth, address and social security number. The affidavit shall be maintained under seal by the clerk unless otherwise ordered by the court, and the information therein shall be used solely for the purposes of financial management and reporting.Unless otherwise ordered by the court, the provisions of this section shall not apply to:
      1. Cash or other money received in lieu of surety on any bond posted in any civil or criminal case, including but not limited to bail bonds, appeal bonds in appeals from a district court or circuit court, bonds posted in connection with the filing of an attachment, detinue seizure or distress, suspending bonds, and performance bonds;
      2. Cash or other money paid or deposited in the clerk’s office prior to final disposition of the case, including but not limited to interpleaders or eminent domain; or
      3. Cash or other money deposited in lieu of surety on any bond posted in the clerk’s office which is not posted in connection with any civil or criminal case, including bonds posted by executors or administrators.
    3. All deposits under this section shall be secured in accordance with the Virginia Security for Public Deposits Act (§ 2.2-4400 et seq.).
    4. Moneys held pursuant to this section shall be invested in certificates of deposit and time deposits, and in accordance with the provisions of Chapter 45 (§ 2.2-4500 et seq.) of Title 2.2 as ordered by the court.
    5. Any interest which accrues on the funds, minus allowable fees and bond costs, shall be credited and payable to the person or persons entitled to receive such funds. The court may order the clerk to consolidate for investment purposes money received under this section, with income received hereunder to be apportioned among the several accounts.
    6. Except as otherwise ordered by the court, for good cause shown, the clerk shall be liable for any loss of income which results from his (i) failure to invest the money within sixty days of the court order creating the fund or (ii) failure to pay out any money so ordered by the court within sixty days of the court order. He shall be charged with interest from the date of the court order until such investment or payment is made.
    7. The clerk shall keep an accurate and particular account of all moneys received, invested, and paid out by him, showing the respective amounts to the credit of each case in the court and designating in the items the judgments, orders or decrees of court under which the respective sums have been received, invested or paid out. At least annually and no later than October 1 of each year, the clerk shall make a report to the court, which shall include the chief judge of the circuit or the resident judge, showing the balance to the credit of each case in the court in which money has been received by him, the manner in which money has been received by him, the manner in which it is invested, the amounts received, invested or paid out during the year ending June 30 of the current year, the approximate date on which the moneys held for the beneficiaries will become payable, and the whole amount then invested and subject to the future order of the court. The clerk shall make a copy of such report available to the Auditor of Public Accounts for purposes of audit. A copy of this report shall be recorded in the trust fund order book. The clerk shall, at any time when required by the court or the Auditor of Public Accounts to do so, furnish a statement of the amount subject to the order of the court in any case pending therein and any other information required by the court or the Auditor of Public Accounts as to any money or other property under his control before the court. When the clerk receives funds under this section, he shall be entitled to receive fees in accordance with § 17.1-287 in the amounts as specified for general receivers in § 8.01-589 .
    8. All moneys received under this section are subject to audit by the Auditor of Public Accounts.

    History. Code 1950, § 8-744; 1977, c. 617; 1986, c. 644; 1988, c. 841; 1990, cc. 3, 414; 1991, c. 635; 2002, c. 832; 2015, c. 633; 2017, c. 35.

    REVISERS’ NOTE

    The reference in former § 8-744 to a court order which stated that the fund will be promptly paid out has been deleted as unnecessary.

    Cross references.

    As to a blanket surety bond plan for moneys under control of court, see § 2.2-1841.

    The 2002 amendments.

    The 2002 amendment by c. 832, in the first paragraph of subsection B, deleted “(i) the beneficiary’s social security number and date of birth and (ii)” following “unreasonable” in the second sentence, and added the third and fourth sentences.

    The 2015 amendments.

    The 2015 amendment by c. 633 added the second sentence of subsection A.

    The 2017 amendments.

    The 2017 amendment by c. 35, in subsection G, inserted “which shall include the chief judge of the circuit or the resident judge” in the second sentence, and inserted the third sentence.

    Law Review.

    For note, “Virginia’s Acquisition of Unclaimed and Abandoned Personal Property,” see 27 Wm. & Mary L. Rev. 409 (1986).

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Payment into Court, § 4.

    OPINIONS OF THE ATTORNEY GENERAL

    Clerk of circuit court may not hold interest in Virginia stock corporation. —

    The clerk of a circuit court may not accept the transfer by a commissioner of accounts of an equity interest in a Virginia stock corporation, which is subject to the direction of the court, when the transfer is not part of a case or controversy properly before the court. See opinion of Attorney General to The Honorable Michael P. McWeeny, Judge, Nineteenth Judicial Circuit of Virginia, 02-076 (10/28/02).

    § 8.01-600.1. Repealed by Acts 1993, c. 939.

    § 8.01-601. Deposit with general receiver of certain funds under supervision of fiduciary and belonging to person under disability.

    Whenever it appears to any fiduciary as defined in § 8.01-2 that a person under a disability as defined in § 8.01-2 is not represented by a fiduciary as defined above and is entitled to funds not exceeding $3,000 under the supervision and control of the fiduciary in charge of such funds, he may report such fact to the commissioner of accounts of the court in which he was admitted to qualify. With the approval of such commissioner of accounts, the fiduciary in charge of such funds may deposit such funds with the general receiver of the court in which he was admitted to qualify. The general receiver shall issue a receipt to such fiduciary which shall show the source of such fund, the amount and to whom it belongs and shall enter the amount and such facts in his accounts.

    History. Code 1950, § 8-744.1; 1970, c. 352; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-601 uses the terms “a person under a disability” and “fiduciary” as those terms are defined in § 8.01-2 . See also §§ 8.01-606 and 64.1-124.

    Former § 8-745 (Reports and collection of taxes thereon) was deleted as unnecessary since there is no longer a tax on intangibles.

    Law Review.

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, § 1.

    § 8.01-602. Proceedings when owner of money under control of court unknown.

    Whenever any money has remained payable or distributable for one year in the custody or under the control of any court of this Commonwealth without anyone known to the court claiming the same, except funds deposited as compensation and damages in condemnation proceedings pursuant to § 25.1-237 pending a final order or pursuant to § 33.2-1019 , the court shall cause such money to be reported and then remitted to the State Treasurer pursuant to §§ 55.1-2518 and 55.1-2524 .

    The general receiver, if one has been appointed, and the clerk of the circuit court shall be responsible for identifying such money held by them in their respective control pursuant to §§ 8.01-582 and 8.01-600 and for petitioning the court to remit as provided in this section.

    History. Code 1950, § 8-746; 1966, c. 210; 1977, c. 617; 1982, c. 155; 1984, c. 121; 1987, c. 708; 1988, c. 841.

    REVISERS’ NOTE

    A minor change with respect to the requirement of newspaper publication has been made. See § 8.01-586 .

    Editor’s note.

    Section 55-210.14, referred to in this section, was repealed by Acts 1988, c. 378.

    A reference in this section was updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

    This section has been set out above to make a correction in the first paragraph. Substituted “§§ 55.1-2518 and 55.1-2524 ” for “§§ 55.1-2518 or 55.1-2524 .”

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “§§ 55.1-2518 and 55.1-2524 ” for “§§ 55-210.9:1, 55-210.12 and 55-210.14.”

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Payment into Court, § 4.

    § 8.01-603. Repealed by Acts 1982, c. 155.

    § 8.01-604. How State Treasurer to keep account of such money.

    The State Treasurer shall keep an account of all money thus paid to him, showing the amount thereof, when, by whom, and under what order it was paid, and the name of the court, and, as far as practicable, a description of the suit or proceeding in which the order was made, and, as far as known, the names of the parties thereto.

    History. Code 1950, § 8-748; 1977, c. 617; 1981, c. 514; 1982, c. 155.

    § 8.01-605. How person entitled to money paid into state treasury may recover it.

    Money paid into the state treasury under the provisions of this article shall be accounted for and disbursed under the procedures provided for in Article 3 (§ 55.1-2524 et seq.) of Chapter 25 of Title 55.1.

    History. Code 1950, § 8-749; 1962, c. 607; 1977, c. 617; 1981, c. 514; 1982, c. 155.

    REVISERS’ NOTE

    Section 8.01-605 is former § 8-749 with several changes. A reference to this “article” has been inserted in order to point out that the application of this statute is limited to money paid into the State treasury under the conditions outlined in this article. The limitation on the amount which the Comptroller may allow upon satisfactory proof has been eliminated. The former requirement of venue in the Circuit Court of the city of Richmond when the Comptroller disallows a claim has been eliminated; § 8.01-605 permits the claimant to apply to an appropriate circuit court. The reference to the statute of limitations on claims against the State has been replaced by the provision that no statute of limitations shall bar any claim presented under this section; this change has been made in order that an unknown person will not be barred of his rights to funds held by the Commonwealth when he has a proper claim thereto.

    Editor’s note.

    To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted “Article 3 (§ 55.1-2524 et seq.) of Chapter 25 of Title 55.1” for “Article 4 of Chapter 11.1 of Title 55 (§ 55-210.12 et seq.).”

    Michie’s Jurisprudence.

    For related discussion, see 14B M.J. Payment into Court, § 4.

    § 8.01-606. Payment of small amounts to certain persons through court without intervention of fiduciary; authority of commissioners of accounts; certain fiduciaries exempt from accountings.

    1. Whenever there is due to any person, any sum of money from any source, not exceeding $25,000, the fund may be paid into the circuit court of the county or city in which the fund became due or such person resides. The court may, by an order entered of record, (i) pay the fund to the person to whom it is due, if the person is considered by the court competent to expend and use the same in his behalf, or (ii) pay the fund to some other person who is considered competent to administer it, for the benefit of the person entitled to the fund, without the intervention of a fiduciary, whether the other person resides within or without this Commonwealth. The clerk of the court shall take a receipt from the person to whom the money is paid, which shall show the source from which it was derived, the amount, to whom it belongs, and when and to whom it was paid. The receipt shall be signed and acknowledged by the person receiving the money, and entered of record in the book in the clerk’s office in which the current fiduciary accounts are entered and indexed. Upon the payment into court the person owing the money shall be discharged of such obligation. No bond shall be required of the party to whom the money is paid by the court.
    2. Whenever (i) it appears to the court having control of a fund, tangible personal property or intangible personal property or supervision of its administration, whether a suit is pending therefor or not, that a person under a disability who has no fiduciary, is entitled to a fund arising from the sale of lands for a division or otherwise, or a fund, tangible personal property or intangible personal property as distributee of any estate, or from any other source, (ii) a judgment, decree, or order for the payment of a sum of money or for delivery of tangible personal property or intangible personal property to a person under a disability who has no fiduciary is rendered by any court, and the amount to which such person is entitled or the value of the tangible personal property or intangible personal property is not more than $25,000, or (iii) a person under a disability is entitled to receive payments of income, tangible personal property or intangible personal property and the amount of the income payments is not more than $25,000 in any one year, or the value of the tangible personal property is not more than $25,000, or the current market value of the intangible personal property is not more than $25,000, the court may, without the intervention of a fiduciary, cause such fund, property or income to be paid or delivered to any person deemed by the court capable of properly handling it, to be used solely for the education, maintenance and support of the person under a disability. In any case in which an infant is entitled to such fund, property or income, the court may, upon its being made to appear that the infant is of sufficient age and discretion to use the fund, property or income judiciously, cause the fund to be paid or delivered directly to the infant.
    3. Where judgment is taken in the general district court, upon motion of a party for good cause shown, the general district court judge may enter an order directing the clerk of the general district court to hold such funds in escrow for a period not to exceed 180 days to enable such party to file a petition pursuant to § 8.01-600 requesting that such funds be received and held by the clerk of the circuit court upon payment of fees in accordance with § 17.1-275 . The party petitioning the circuit court shall provide the clerk of the general district court a certified copy of any order entered by the circuit court directing that such funds held by the clerk of the general district court be transferred to the clerk of the circuit court. If no such order is received by the clerk of the general district court within the 180-day period, the clerk of the general district court shall give notice to the parties that such funds shall be disbursed to the plaintiff for which judgment was entered in the general district court within 30 days after such notice.
    4. Whenever a person is entitled to a fund or such property distributable by a fiduciary settling his accounts before the commissioner of accounts of the court in which the fiduciary qualified, and the amount or value of the fund or property, or the value of any combination thereof, is not more than $25,000, the commissioner of accounts may approve distribution thereof in the same manner and to the extent of the authority herein conferred upon a court including exemption from filing further accounts where the value of the fund being administered is less than $25,000.
    5. Whenever an incapacitated person or infant is entitled to a fund or such property distributable by a fiduciary settling accounts before the commissioner of accounts of the court in which the fiduciary qualified and the will or trust instrument under which the fiduciary serves, authorizes the fiduciary to distribute the property or fund to the incapacitated person or infant without the intervention of a guardian, conservator or committee, and the amount or value of such fund or property, or the value of any combination thereof, is not more than $25,000, the commissioner of accounts may approve distribution thereof in the same manner and to the extent of the authority hereinabove conferred upon a court or judge thereof.
    6. Whenever a fiduciary is administering funds not exceeding $25,000, the circuit court of the county or city in which the fund is being administered by order entered of record may authorize the fiduciary, when considered competent to administer the funds, to continue to administer the funds for the benefit of the person entitled to the fund without the necessity of filing any further accounts, whether such person resides within or without this Commonwealth. The clerk of the court shall take a receipt from the fiduciary, which shall show the amount of the fund remaining, to whom it belongs, and the date the court entered the order exempting the filing of further accounts. The receipt shall be signed and acknowledged by the fiduciary, and entered of record in the book in the clerk’s office in which the current fiduciary accounts are entered and indexed. No surety shall be required on the bond of a fiduciary granted an exemption from filing any further accounts.
    7. Whenever a fiduciary qualifies pursuant to § 64.2-454 for the sole purpose of prosecuting or defending an action, the court in which the fiduciary qualifies or the commissioner of accounts for such court may exempt the fiduciary from filing further accounts where the fiduciary is not administering any funds and has no power of sale over any real estate the decedent owned.

    History. Code 1950, §§ 8-750, 8-751; 1952, c. 103; 1954, cc. 238, 526; 1962, c. 465; 1966, cc. 332, 339; 1970, c. 566; 1977, cc. 462, 617; 1978, c. 525; 1980, c. 544; 1985, c. 216; 1987, c. 378; 1995, c. 405; 1997, c. 801; 2003, c. 195; 2012, c. 43; 2015, cc. 129, 130, 633.

    REVISERS’ NOTE

    Former §§ 8-750 and 8-751 have been combined in § 8.01-606 . Certain of the monetary limits of these sections have been changed. The term “person under a disability” has replaced the phrase “incompetent person or infant” in all but one place, the last sentence of the first paragraph of subsection B. Also, the term “fiduciary” has been used instead of “administrator,” etc. Other clarifying language changes have been made.

    Former § 8-750.1 (Personal representatives for recipients of welfare funds) was transferred to former § 63.1-88.1 (see now § 63.2-507).

    Editor’s note.

    Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the amendment to former § 8-751, corresponding to this section, in Acts 1977, c. 462, was deemed to have amended this section.

    Acts 1997, c. 801, cl. 2, provides: “That the provisions of this act shall become effective on January 1, 1998. The powers granted and duties imposed pursuant to this act shall apply prospectively to guardians and conservators appointed by court order entered on or after that date, or modified on or after that date if the court so directs, without regard to when the petition was filed. The procedures specified in this act governing proceedings for appointment of a guardian or conservator or termination or other modification of a guardianship shall apply on and after that date without regard to when the petition therefor was filed or the guardianship or conservatorship created.”

    The 2003 amendments.

    The 2003 amendment by c. 195 substituted “$15,000” for “$10,000” throughout the section; inserted the subsection C through E designations; and in the last sentence of subsection E, substituted “surety” for “bond” and inserted “on the bond.”

    The 2012 amendments.

    The 2012 amendment by c. 43 substituted “$25,000” for “$15,000” throughout the section.

    The 2015 amendments.

    The 2015 amendments by cc. 129 and 130 are identical, and added subsection G.

    The 2015 amendment by c. 633 added subsection C and redesignated former subsections C through E as subsections D through F.

    Law Review.

    For article, “Updating Virginia’s Probate Law,” see 4 U. Rich. L. Rev. 223 (1970).

    For survey of Virginia law on trusts and estates for the year 1976-77, see 63 Va. L. Rev. 1503 (1977).

    For 1995 survey of wills, trusts, and estates, see 29 U. Rich. L. Rev. 1175 (1995).

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    CASE NOTES

    Section ineffective to transform merely benevolent trust into charitable trust. —

    The possibility of administering under this section proceeds from a testamentary trust for the education of school children was ineffective to transform it into a charitable trust where the basic intent of testator was construed to be merely benevolent and not charitable. Shenandoah Valley Nat'l Bank v. Taylor, 192 Va. 135 , 63 S.E.2d 786, 1951 Va. LEXIS 162 (1951) (decided under prior law).

    Chapter 23. Commissioners in Chancery.

    § 8.01-607. Appointment and removal.

    1. Each circuit court may, from time to time, appoint such commissioners in chancery as may be deemed necessary for the convenient dispatch of the business of such court. Such commissioners shall be removable at pleasure.
    2. Commissioners in chancery may be appointed in cases in circuit court, including uncontested divorce cases, only when:
      1. There is agreement by the parties with the concurrence of the court; or
      2. Upon (i) motion of a party, or (ii) upon motion of the court, sua sponte. The court shall make a finding of good cause shown in each individual case.

    History. Code 1950, § 8-248; 1977, c. 617; 2005, c. 885.

    REVISERS’ NOTE

    Former § 8-248 has been updated to reflect, inter alia, 1973 amendments to Title 17 (Courts of Record).

    The 2005 amendments.

    The 2005 amendment by c. 885 redesignated former section as subsection A; substituted “may” for “shall” following “circuit court” in subsection A; and added subsection B.

    Law Review.

    For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, “Civil Practice and Procedure,” see 40 U. Rich. L. Rev. 95 (2005).

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Divorce and Alimony, § 40.

    CASE NOTES

    Appointment of commissioner within court’s discretion. —

    The question of when it is proper, or may be useful, to resort to the aid of a commissioner is one which addresses itself to the sound discretion of the court. Klein v. Klein, 11 Va. App. 155, 396 S.E.2d 866, 7 Va. Law Rep. 583, 1990 Va. App. LEXIS 176 (1990).

    It is entirely compatible with the practice and statutory law of the Commonwealth for a court to refer questions regarding the circumstances and factors which contributed to the dissolution of the marriage to a commissioner in chancery. Klein v. Klein, 11 Va. App. 155, 396 S.E.2d 866, 7 Va. Law Rep. 583, 1990 Va. App. LEXIS 176 (1990).

    Chapter does not restrict court as to class of case that may be referred. —

    This chapter deals with the procedure before the commissioner and the weight to be given his findings. It does not limit or restrict the court as to the class of case that it may refer to a commissioner. The court, acting within its sound discretion, must determine when the convenient dispatch of business requires an order of reference. Raiford v. Raiford, 193 Va. 221 , 68 S.E.2d 888, 1952 Va. LEXIS 128 (1952) (decided under prior law; “this chapter” refers to prior provisions).

    § 8.01-608. How accounts referred.

    Accounts to be taken in any case shall be referred to a commissioner appointed pursuant to § 8.01-607 , unless the parties interested agree, or the court shall deem it proper, that they be referred to some other person.

    History. Code 1950, § 8-249; 1977, c. 617.

    REVISERS’ NOTE

    The first sentence of former § 8-249 has been retained without change. The second sentence has been modified and is set forth in § 8.01-609 .

    Cross references.

    As to proceedings before commissioner in chancery, see Rule 3:23.

    Michie’s Jurisprudence.

    For related discussion, see 16 M.J. Reference and Commissioners, §§ 4, 7.

    CASE NOTES

    Editor’s note.

    For what cases may be referred by the court to a commissioner, see Kraker v. Shields, 61 Va. (20 Gratt.) 377, 1871 Va. LEXIS 11 (1871).

    Discretion of court. —

    The question when it is proper, or may be useful, to resort to the aid of the commissioner is one which addresses itself to the sound discretion of the court. Of course the court ought to exercise such discretion soundly to prevent unnecessary expense or delay. Raiford v. Raiford, 193 Va. 221 , 68 S.E.2d 888, 1952 Va. LEXIS 128 (1952).

    Appointment of commissioner in suit to subject land to payment of judgment authorized. —

    In a suit to subject land to payment of a judgment, an order of reference was entered and a special commissioner appointed to ascertain and report what amount complainant was entitled to recover. It was held that such an appointment was authorized by this section. Woodhouse v. Burke & Herbert Bank & Trust Co., 166 Va. 706 , 185 S.E. 876 , 1936 Va. LEXIS 231 (1936).

    Account will not be ordered to reopen previously settled accounts. —

    An order for an account will not be awarded merely to enable a party to make out his case, or to reopen the investigation of the account of an indebtedness which has been previously settled by the parties with the aid of their counsel, and the integrity and correctness of which has not been impugned. Hamilton v. Stephenson, 106 Va. 77 , 55 S.E. 577 , 1906 Va. LEXIS 109 (1906).

    When party guilty of laches. —

    After the funds in a cause have passed beyond the control of the court, and the cause is practically ready for a final decree, a court of equity will not, at the instance of the counsel for some of the parties (who has paid no attention to the case for years, and whose clients have been, in the meantime represented by other counsel) order an account to ascertain what is due to him from his clients for services rendered in the cause. Miller v. Penniman & Bro., 110 Va. 780 , 67 S.E. 516 , 1910 Va. LEXIS 124 (1910).

    No account ordered when there is no proof to support pleadings. —

    No account shall be ordered when the answer denies all the material allegations of the bill and there is no proof to sustain them. Lee County Justice v. Fulkerson, 62 Va. (21 Gratt.) 182, 1871 Va. LEXIS 70 (1871); Sadler v. Whitehurst, 83 Va. 46 , 1 S.E. 410 , 1887 Va. LEXIS 37 (1887).

    § 8.01-609. Duties; procedure generally.

    Every commissioner shall examine, and report upon, any matters as may be referred to him by any court. The proceedings before a commissioner in chancery shall be conducted as set forth in this chapter and the Rules of Court.

    History. Code 1950, § 8-249; 1977, c. 617; 1981, c. 613; 1992, c. 297.

    REVISERS’ NOTE

    Section 8.01-609 sets forth the second sentence of former § 8-249 with minor modifications and with the addition of language referring to the provisions of this chapter and the Rules of Court for the conduct of proceedings before commissioners in chancery.

    Cross references.

    As to proceedings before commissioner in chancery, see Rule 3:23.

    Michie’s Jurisprudence.

    For related discussion, see 16 M.J. Reference and Commissioners, §§ 4, 7.

    CASE NOTES

    Editor’s note.

    A chancellor does not delegate his judicial functions to a commissioner in chancery when he refers a cause to him. Raiford v. Raiford, 193 Va. 221 , 68 S.E.2d 888, 1952 Va. LEXIS 128 (1952).

    The court is responsible for the correct decision of the cause, and cannot shift such responsibility from its own shoulders to those of a commissioner. But it can avail itself of the assistance of a commissioner to prepare the cause and place it in the best possible state to enable the court to decide it correctly. Raiford v. Raiford, 193 Va. 221 , 68 S.E.2d 888, 1952 Va. LEXIS 128 (1952).

    Competency of commissioners. —

    An attorney employed in a cause is not a competent commissioner to take an account ordered in the cause. Bowers v. Bowers, 70 Va. (29 Gratt.) 697, 1878 Va. LEXIS 6 (1878).

    A commissioner, who is a creditor and a party to suit to subject debtor’s land to pay his lien debts, is incompetent to take an account ordered therein. Dillard v. Krise, 86 Va. 410 , 10 S.E. 430 , 1889 Va. LEXIS 57 (1889); Etter v. Scott, 90 Va. 762 , 19 S.E. 776 , 1894 Va. LEXIS 62 (1894).

    § 8.01-609.1. Commissioners in chancery.

    A commissioner in chancery may, for services rendered by virtue of his office, charge the following fees, to wit:

    For services which might be performed by notaries, the fees for such services and for any other service such fees as the court by which the commissioner is appointed may from time to time prescribe.

    A commissioner shall not be compelled to make out or return a report until his fees therefor are paid or security given him to pay so much as may be adjudged appropriate by the court to which the report is to be returned or by the judge thereof in vacation, unless the court finds cause to order it to be made out and returned without such payment or security.

    History. Code 1950, § 14-142; 1964, c. 386, § 14.1-133; 1998, c. 872.

    CASE NOTES

    Time to object to fees. —

    Unless exception be made in the court below to the amount charged by the commissioner for his fees which are allowed by that court, it is too late to make exception thereto in the appellate court. Shipman v. Fletcher, 83 Va. 349 , 2 S.E. 198 , 1887 Va. LEXIS 77 (1887) (decided under prior law).

    § 8.01-610. Weight to be given commissioner’s report.

    The report of a commissioner in chancery shall not have the weight given to the verdict of a jury on conflicting evidence, but the court shall confirm or reject such report in whole or in part, according to the view which it entertains of the law and the evidence.

    History. Code 1950, § 8-250; 1977, c. 617.

    Law Review.

    For note, “Judicial Review of Arbitration Awards Under State Law,” 96 Va. L. Rev. 887 (2010).

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Divorce and Alimony, § 40.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Weight of commissioner’s report. —

    While the report of a commissioner in chancery does not carry the weight of a jury’s verdict, it should be sustained unless the trial court concludes that the commissioner’s findings are not supported by the evidence. This rule applies with particular force to a commissioner’s findings of fact based upon evidence taken in his presence, but is not applicable to pure conclusions of law contained in the report. Jamison v. Jamison, 3 Va. App. 644, 352 S.E.2d 719, 3 Va. Law Rep. 1775, 1987 Va. App. LEXIS 151 (1987).

    The trial court had the authority to overturn a commissioner’s decision, and the evidence indicated that the wife was only interested in a meal ticket, as she refused to move into the marital residence even after the husband paid her substantial sums of money. Ghods v. Musick, 2005 Va. App. LEXIS 103 (Va. Ct. App. Mar. 15, 2005).

    Where the commissioner in chancery recommended that a wife’s grounds for divorce be granted because the husband had not met the burden of proving a credit card forgery allegation, the trial court did not abuse its discretion in hearing the forgery evidence for purposes of equitable distribution because (1) under subsection E of § 20-107.3 , the trial court had the authority to examine evidence regarding the effect of the forgery allegations on the marital property and equitable distribution award, and (2) the commissioner’s scope of referral was limited to answering whether the grounds of divorce alleged in the pleadings were proven. Morrill v. Morrill, 45 Va. App. 709, 613 S.E.2d 821, 2005 Va. App. LEXIS 289 (2005).

    Appellate review where chancellor approves commissioner’s findings. —

    A commissioner’s findings of fact that have been accepted by the trial court are presumed to be correct when reviewed on appeal and are to be given great weight by the appellate court; the findings will not be reversed on appeal unless plainly wrong. Gilman v. Gilman, 32 Va. App. 104, 526 S.E.2d 763, 2000 Va. App. LEXIS 251 (2000).

    This section clearly gives the trial court substantial discretion in the manner in which it reviews the report of a commissioner; however, it does not allow the trial judge simply to ignore the report or portions thereof. Gulfstream Bldg. Ass'n v. Britt, 239 Va. 178 , 387 S.E.2d 488, 6 Va. Law Rep. 1140, 1990 Va. LEXIS 18 (1990).

    The court erred in placing the burden upon the claimant to justify the commissioner’s report and in rejecting the commissioner’s factual findings where the chancellor made no finding that the commissioner’s report was unsupported by the evidence since the commissioner’s report came to the court armed with a presumption of correctness which the additional evidence heard in court did nothing to overcome. Morris v. United Va. Bank, 237 Va. 331 , 377 S.E.2d 611, 5 Va. Law Rep. 1873, 1989 Va. LEXIS 38 (1989).

    Commissioner’s ability to see, hear and evaluate witnesses. —

    Although the report of a commissioner in chancery does not carry the weight of a jury’s verdict, an appellate court must give due regard to the commissioner’s ability, not shared by the chancellor, to see, hear and evaluate the witnesses at first hand. Gilman v. Gilman, 32 Va. App. 104, 526 S.E.2d 763, 2000 Va. App. LEXIS 251 (2000).

    Report should be sustained where findings are supported by evidence. —

    While the report of a commissioner in chancery does not carry the weight of a jury’s verdict, it should be sustained unless the trial court concludes that the commissioner’s findings are not supported by the evidence. This rule applies with particular force to a commissioner’s findings of fact based upon evidence taken in his presence, but is not applicable to pure conclusions of law contained in the report. Hill v. Hill, 227 Va. 569 , 318 S.E.2d 292, 1984 Va. LEXIS 227 (1984); Dodge v. Dodge, 2 Va. App. 238, 343 S.E.2d 363, 1986 Va. App. LEXIS 264 (1986).

    Appellate review where chancellor disapproves commissioner’s findings. —

    On appeal, a decree which approves a commissioner’s report will be affirmed unless plainly wrong, but where the chancellor has disapproved the commissioner’s findings, the Supreme Court must review the evidence and ascertain whether, under a correct application of the law, the evidence supports the findings of the commissioner or the conclusions of the trial court. Hill v. Hill, 227 Va. 569 , 318 S.E.2d 292, 1984 Va. LEXIS 227 (1984).

    On appeal when the chancellor has disapproved the commissioner’s findings, the appellate court must review the evidence and ascertain whether, under a correct application of law, the evidence supports the findings of the commissioner or the conclusions of the trial court. Hodges v. Hodges, 2 Va. App. 508, 347 S.E.2d 134, 3 Va. Law Rep. 54, 1986 Va. App. LEXIS 300 (1986).

    Where the trial judge disagreed with the commissioner not upon the facts but upon the conclusions of law, the Court of Appeals must review the evidence and ascertain whether, under the correct application of the law, the evidence supports the findings of the commissioner or the conclusions of the trial court. Jamison v. Jamison, 3 Va. App. 644, 352 S.E.2d 719, 3 Va. Law Rep. 1775, 1987 Va. App. LEXIS 151 (1987).

    Where report of a commissioner in chancery recommended that a deed be set aside based upon the commissioner’s finding that clear and convincing evidence established that the deed had been procured by fraud, where a final order overruling the report of the commissioner was entered, where the chancellor’s basis for disapproving the commissioner’s finding depended upon “facts” not in the record of this case, where even if evidence of mother’s mental condition from the separate and unrelated hearing was a permissible subject of judicial notice, the chancellor’s opinion letter clearly indicated that she was not judicially declared “incompetent” until more than eight months after the commissioner’s hearing, and where the evidence before the commissioner was entirely unrebutted, upon the record, the commissioner’s findings were supported by the evidence, and the supreme court reversed the judgment of the circuit court. Branham v. Branham, 254 Va. 320 , 491 S.E.2d 715, 1997 Va. LEXIS 83 (1997).

    Trial court improperly modified chancery commissioner’s ruling in custody case where there was nothing in the record showing that it found insufficient evidence to support the commissioner’s recommendation for joint custody and payment by husband of $2500 attorney’s fees. Jones v. Jones, 26 Va. App. 689, 496 S.E.2d 150, 1998 Va. App. LEXIS 126 (1998).

    Chancellor abused his discretion in rejecting commissioner in chancery’s recommendation that property be publicly marketed and instead ordering sale at public action, in the absence of any evidence that the parties’ interests would be promoted by this method of sale or that the parties were unable to agree on terms for listing the property through a licensed real estate broker. Orgain v. Butler, 255 Va. 129 , 496 S.E.2d 433, 1998 Va. LEXIS 3 (1998).

    II.Decisions Under Prior Law.

    Editor’s note.

    Commissioner appointed to assist, not replace court. —

    When a cause is referred to a commissioner in chancery, the chancellor does not delegate his judicial function to him. He is appointed for the purpose of assisting the chancellor and not to supplant or replace him. It is the duty of the chancellor to weigh the evidence according to correct principles of law and arrive at his own conclusions. Hoffecker v. Hoffecker, 200 Va. 119 , 104 S.E.2d 771, 1958 Va. LEXIS 167 (1958); Plattner v. Plattner, 202 Va. 263 , 117 S.E.2d 128, 1960 Va. LEXIS 216 (1960); Kullgren v. Sletter, 202 Va. 507 , 118 S.E.2d 514, 1961 Va. LEXIS 135 (1961); Higgins v. Higgins, 205 Va. 324 , 136 S.E.2d 793, 1964 Va. LEXIS 184 (1964).

    Report entitled to respect. —

    While the report of a commissioner does not have the weight given to the verdict of a jury on conflicting evidence, it is entitled to respect, if his judgment is supported by the testimony, and unless it is clear that he has erred. Parksley Nat'l Bank v. Parks, 172 Va. 169 , 200 S.E. 629 , 1939 Va. LEXIS 228 (1939).

    Report has great weight when evidence taken in his presence. —

    The report of a commissioner, when the evidence has been taken in his presence, is entitled to great weight, and should not be disturbed unless its conclusions are clearly unsupported by the evidence, and such report on the value of property, based upon conflicting testimony, and sustained by the trial court, will not be overruled on appeal. Ingram v. Ingram, 130 Va. 329 , 107 S.E. 653 , 1921 Va. LEXIS 158 (1921) (see Kraker v. Shields, 61 Va. (20 Gratt.) 377 (1871); Bowers v. Bowers, 70 Va. (29 Gratt.) 697 (1878); Stuart, Palmer & Co. v. Hendricks, 80 Va. 601 (1885); Dermott v. Carter, 151 Va. 81 , 144 S.E. 602 (1928); Mitchell v. Cox, 189 Va. 236 , 52 S.E.2d 105 (1949); Henderson v. Henderson, 190 Va. 805 , 58 S.E.2d 77 (1950); Kramer Bros. Co. v. Powers, 195 Va. 131 , 77 S.E.2d 468 (1953)).

    The report of a commissioner in chancery is entitled to respect and to a greater weight where the evidence has been taken in his presence. However, it is the duty of the court to review and weigh the evidence, and if in its opinion such report is unsupported by the evidence, to reject it. Jacobs v. Jacobs, 184 Va. 281 , 35 S.E.2d 119, 1945 Va. LEXIS 149 (1945).

    It is established in Virginia that the conclusions of a commissioner, where the evidence has been taken in his presence, should be sustained unless it plainly appears, upon a fair and full review, that the weight of the evidence is contrary to his findings. Although the trial court is given power of review over his findings, it cannot arbitrarily disturb the report, if it is supported by sufficient proof. Hudson v. Clark, 200 Va. 325 , 106 S.E.2d 133, 1958 Va. LEXIS 192 (1958); Newton v. Newton, 202 Va. 96 , 116 S.E.2d 94, 1960 Va. LEXIS 195 (1960); McGrue v. Brownfield, 202 Va. 418 , 117 S.E.2d 701, 1961 Va. LEXIS 124 (1961); Thrasher v. Thrasher, 202 Va. 594 , 118 S.E.2d 820, 1961 Va. LEXIS 150 (1961).

    The practice is to accept the report as prima facie correct. Raiford v. Raiford, 193 Va. 221 , 68 S.E.2d 888, 1952 Va. LEXIS 128 (1952).

    A report of a commissioner in chancery, on questions of fact, is deemed to be prima facie correct and entitled to great weight, although it does not bind the court like the verdict of a jury. Eppes v. Eppes, 181 Va. 970 , 27 S.E.2d 164, 1943 Va. LEXIS 244 (1943).

    The report of a master in chancery, except as to errors appearing on its face, is prima facie correct when the evidence is conflicting. Buckle v. Marshall, 176 Va. 139 , 10 S.E.2d 506, 1940 Va. LEXIS 240 (1940).

    Commissioner’s conclusions may not be arbitrarily disturbed. —

    Though the court is by this section given broad power of review over the findings of the commissioner, in so doing it is required to apply correct principles of law in evaluating the evidence and may not arbitrarily disturb the report if supported by competent and preponderating proof. The conclusion of the commissioner should not be upset unless upon a fair and full review according to correct principles of law it appears that the weight of the evidence is contrary to his finding. Leckie v. Lynchburg Trust & Sav. Bank, 191 Va. 360 , 60 S.E.2d 923, 1950 Va. LEXIS 226 (1950); Shepheard v. Boggs, 198 Va. 299 , 94 S.E.2d 300, 1956 Va. LEXIS 206 (1956).

    And Commissioner’s report should not be disturbed unless not supported by evidence. —

    Commissioner’s report is entitled to great weight and should not be disturbed unless its conclusions are unsupported by the evidence; and this rule applies with special force when the findings of the commissioner have been approved by the trial court. Surf Realty Corp. v. Standing, 195 Va. 431 , 78 S.E.2d 901, 1953 Va. LEXIS 215 (1953); Pavlock v. Gallop, 207 Va. 989 , 154 S.E.2d 153, 1967 Va. LEXIS 167 (1967).

    While the report of a commissioner in chancery does not carry the weight of a jury’s verdict, it should be sustained unless it plainly appears, upon a fair and full review, that his findings are not supported by the evidence. Strauss v. Princess Anne Marine & Bulkheading Co., 209 Va. 217 , 163 S.E.2d 198, 1968 Va. LEXIS 219 (1968).

    Though a commissioner’s report is not entitled to the weight of a jury verdict, yet where it has been confirmed the judgment confirming it should be set aside only because contrary to the evidence or the result of applying wrong principles of law. Hodge v. Kennedy, 198 Va. 416 , 94 S.E.2d 274, 1956 Va. LEXIS 224 (1956); Hoffecker v. Hoffecker, 200 Va. 119 , 104 S.E.2d 771, 1958 Va. LEXIS 167 (1958).

    The conclusions of the chancellor should not be upset unless, upon a fair and full review according to correct principles of law, it appears that the weight of the evidence is contrary to his finding. Higgins v. Higgins, 205 Va. 324 , 136 S.E.2d 793, 1964 Va. LEXIS 184 (1964).

    But courts should review the report if fairly challenged. —

    Under the influence of this section, the court has said that a report of a commissioner approved by the trial court is prima facie correct, or is entitled to great weight, or should not be disturbed unless its conclusions are at variance with the evidence. It is fundamental that, notwithstanding the weight due a commissioner’s report and the respect which is accorded his findings, neither the trial court nor this court should avoid the duty of weighing the evidence when its sufficiency is fairly challenged. Gilmer v. Brown, 186 Va. 630 , 44 S.E.2d 16, 1947 Va. LEXIS 186 (1947); Hoffecker v. Hoffecker, 200 Va. 119 , 104 S.E.2d 771, 1958 Va. LEXIS 167 (1958).

    And court has duty to review evidence and examine conclusions when report objected to. —

    When reports of commissioners in chancery are objected to, it is the duty of the court to examine the evidence returned by the commissioner, and upon which his conclusions are based, and review his conclusions. If the evidence consists of depositions which have been taken by the commissioner, or in his presence, and is conflicting, and his conclusions are clearly supported by competent and unimpeached witnesses, his report will not be disturbed, unless it is clear that the weight of the testimony is contrary to his conclusions. But, even in such case, the court will review and weigh the evidence, and, if not satisfied with the findings of the commissioner, will overrule them. The report will only be accepted as conclusive when the testimony, though conflicting, is evenly balanced, and the report is supported by the testimony of competent and unimpeached witnesses. Diebold & Sons' Stone Co. v. Tatteson, 115 Va. 766 , 80 S.E. 585 , 1914 Va. LEXIS 129 (1914) (see also Hall v. Hall, 104 Va. 773 , 52 S.E. 557 (1906); Herrell v. Board, 113 Va. 594 , 75 S.E. 87 (1912)).

    And when report is overturned, appellate court should review evidence. —

    In view of this section, the Supreme Court, when the report of the commissioner is overturned by the trial court, must review the evidence and ascertain whether it supports the holding of the commissioner or that of the trial court. Parkes v. Gunter, 168 Va. 94 , 190 S.E. 159 , 1937 Va. LEXIS 208 (1937).

    Individual and extrajudicial knowledge on the part of a judge will not dispense with proof of facts not judicially cognizable, and cannot be resorted to for the purpose of supplementing the record. Newton v. Newton, 202 Va. 96 , 116 S.E.2d 94, 1960 Va. LEXIS 195 (1960).

    Decree based on commissioner’s report is not given weight of jury verdict. —

    Where the evidence adduced was heard by a commissioner in chancery and not ore tenus by the chancellor the decree of the trial court, while presumed to be correct, is not given the same weight on appeal as a jury verdict. Hoffecker v. Hoffecker, 200 Va. 119 , 104 S.E.2d 771, 1958 Va. LEXIS 167 (1958).

    CIRCUIT COURT OPINIONS

    Weight of commissioner’s report. —

    The court granted the commissioner’s recommendation to rescind the partition deed, as sufficient evidence supported a commissioner’s finding that all parties to a partition deed made a mutual mistake as to the ownership of property; the parties of first part purportedly conveyed an interest in land they did not own, and the parties of second part mistakenly conveyed their interest in property because of what they thought they were receiving from the parties of the first part. Carey v. Carey, 2008 Va. Cir. LEXIS 116 (Madison County July 17, 2008).

    Overruling of plaintiffs’ exceptions in an action involving a prescriptive easement was proper, in part because there was ample evidence in the record supporting the Commissioner’s conclusion that a prescriptive easement was established by clear and convincing evidence, which included cited affidavits that the Commissioner found as reliable, competent evidence, and cited testimony that the commissioner obviously found credible. Furthermore, the evidence was critical to the prescriptive easement claims and most important, it was evidence that was taken in the presence of the Commissioner. Frazier v. Bledsoe, 79 Va. Cir. 278, 2009 Va. Cir. LEXIS 233 (Orange County Sept. 14, 2009).

    Standard of review. —

    A circuit court has substantial discretion to exercise its own judgment in reviewing a commissioner’s report, and indeed must exercise its own judgment over pure conclusions of law. Thus, the requirement that assignments of error be made with specificity, rooted in practice before Virginia’s appellate courts, is inapplicable to the review of commissioners’ reports. Friedberg v. Hague Park Apts., 61 Va. Cir. 589, 2001 Va. Cir. LEXIS 518 (Norfolk Dec. 3, 2001).

    Not given weight of jury verdict. —

    While the commissioner’s report did not have the weight given a jury verdict, the report was entitled to great weight; accordingly, most of the commissioner’s recommendations concerning the issues involving the divorcing parties were upheld; however, it was ordered that some clerical errors be corrected, that the wife be given 90 days rather than 30 days to vacate the marital home following entry of the divorce decree, and that the husband be permitted to offset any amount of deficiency that the husband was required to pay due to the wife’s bankruptcy from any amount that the husband owed to the wife. McCoy v. McCoy, 2003 Va. Cir. LEXIS 40 (Norfolk Apr. 11, 2003).

    Report should be sustained where findings are supported by evidence. —

    Report of a commissioner in chancery that the boundary line between two properties was as shown in a certain survey and that it was not shown that a public road created almost 200 years earlier was the road that passed over a landowner’s property was supported by the evidence and was confirmed. Cover v. Scogin, 61 Va. Cir. 680, 2002 Va. Cir. LEXIS 430 (Fauquier County Nov. 12, 2002).

    Hospital’s exceptions were overruled because sufficient evidence supported a Commissioner’s finding that: (1) a hospital’s cashier, with the hospital’s apparent authority to do so, validly accepted $20,000 as payment in full for an uninsured decedent’s medical expenses; (2) the cashier assigned the hospital’s claim for payment to the decedent’s sister; and (3) the decedent’s brother, based on the cashier’s failure to express any doubt about his authority or capacity to execute the assignment, was justified in believing that the cashier had authority to execute the assignment. Estate of Kapourchali, 2007 Va. Cir. LEXIS 81 (Fairfax County Apr. 18, 2007).

    Even if the commissioner erroneously admitted evidence, the remaining evidence in the record was sufficient to support his findings; moreover, much of the evidence that the commissioner relied on to support his findings came directly from or was corroborated by the county’s main witness. Orange County v. Waugh, 87 Va. Cir. 294, 2013 Va. Cir. LEXIS 175 (Orange County Dec. 2, 2013).

    Commissioner’s report confirmed. —

    Where a doctor’s limited and sporadic activities on the disputed property north of a fence, which included planting grass on one occasion, occasionally walking dogs on the property, planting trees, sometimes descenting skunks and burying animals on the property, and occasionally cutting the grass and underbrush, did not constitute actual, hostile, exclusive, visible, and continuous use of the property for 15 years, a commissioner’s report was confirmed in its entirety. Russrand Triangle Assocs., L.L.C. v. Morgan, 64 Va. Cir. 241, 2004 Va. Cir. LEXIS 59 (Chesapeake Mar. 18, 2004).

    Report not confirmed. —

    Commissioner erred in concluding that a wife was voluntarily underemployed because the husband indicated during the hearing that he was not trying to impute income to the wife, and there was an absence of information as to what type of employment the wife was otherwise qualified for. The court concluded that the wife’s current employment was appropriate, given the special care that her son required and the wife’s need to be flexible and available to care for her son on a regular basis and, after considering the factors listed in subsection E of § 20-107.1 , found that the wife should be awarded $600 per month in spousal support rather than the $250 per month the commissioner originally recommended. Driskill v. Driskill, 2003 Va. Cir. LEXIS 380 (Norfolk May 29, 2003), amended, No. 98-262, 2003 Va. Cir. LEXIS 381 (Norfolk June 16, 2003), aff'd, No. 2625-03-1, 2004 Va. App. LEXIS 311 (Va. Ct. App. July 6, 2004).

    Commissioner erred in departing from the child support guidelines by failing to consider the husband’s spousal support obligation in determining the amount of child support owed by the husband because the commissioner failed to provide an explanation for that departure, as required by subsection A of § 20-108.2 .Driskill v. Driskill, 2003 Va. Cir. LEXIS 380 (Norfolk May 29, 2003), amended, No. 98-262, 2003 Va. Cir. LEXIS 381 (Norfolk June 16, 2003), aff'd, No. 2625-03-1, 2004 Va. App. LEXIS 311 (Va. Ct. App. July 6, 2004).

    Commissioner erred in failing to report that a husband had a life insurance policy. Though the husband’s mother gifted the policies to the husband, the husband made premium payments after the gift and during the marriage; thus, the policies changed from separate property to marital property. Driskill v. Driskill, 2003 Va. Cir. LEXIS 380 (Norfolk May 29, 2003), amended, No. 98-262, 2003 Va. Cir. LEXIS 381 (Norfolk June 16, 2003), aff'd, No. 2625-03-1, 2004 Va. App. LEXIS 311 (Va. Ct. App. July 6, 2004).

    Commissioner’s report rejected. —

    When a commissioner in chancery found that a limited liability company (LLC) had standing to directly sue another LLC of which the first LLC was a member, as well as the second LLC’s manager, rather than derivatively, for breach of fiduciary duty, that finding was rejected, under § 8.01-610 , because the general assembly did not choose to impose a fiduciary duty upon the manager of an LLC running directly to the LLC’s members, nor did the second LLC’s operating agreement directly impose such a duty. Remora Invs., L.L.C. v. Orr, 74 Va. Cir. 358, 2007 Va. Cir. LEXIS 198 (Fairfax County Nov. 16, 2007), aff'd, 277 Va. 316 , 673 S.E.2d 845, 2009 Va. LEXIS 26 (2009).

    § 8.01-611. Notice of time and place of taking account.

    The court, ordering an account to be taken, may direct that notice of the time and place of taking it be published once a week for two successive weeks in a newspaper meeting the requirements of § 8.01-324 , and may also require notice to be served on the parties in the manner set forth in the Rules of Court for the taking of depositions.

    History. Code 1950, § 8-251; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-251 has been updated. The clause stating that publication shall be equivalent to personal service has been removed as being constitutionally suspect; to insure more adequate notice, a provision has been added to permit mailing or delivering the notice of the time and place of taking the account to counsel of record and to a party having no counsel.

    Cross references.

    For general sections on orders of publication, see § 8.01-316 et seq.

    As to notice requirements for depositions, see Rules 4:2, 4:5, 4:6, and 4:7.

    Michie’s Jurisprudence.

    For related discussion, see 16 M.J. Reference and Commissioners, § 15.

    CASE NOTES

    Class of cases to which this section applies not limited. —

    This section does not limit the class of cases in which a court of equity may direct that notice be given for hearings before its commissioners. Hill v. Bowyer, 59 Va. (18 Gratt.) 364, 1868 Va. LEXIS 18 (1868); Goins v. Garber, 131 Va. 59 , 108 S.E. 868 , 1921 Va. LEXIS 8 (1921) (decided under prior law).

    Guardian ad litem must have notice. —

    It is erroneous to proceed to the taking of accounts where the notice was served on minors by publication, the guardian ad litem not being named therein, nor otherwise served with notice. Strayer v. Long, 83 Va. 715 , 3 S.E. 372 , 1887 Va. LEXIS 115 (1887) (decided under prior law).

    Time required between publication and hearing. —

    When notice of taking an account is ordered to be given by publication in a newspaper under this section, there must be at least twenty-eight days (now fourteen days) between the first insertion and the day of taking the account. Dillard v. Krise, 86 Va. 410 , 10 S.E. 430 , 1889 Va. LEXIS 57 (1889) (decided under prior law).

    § 8.01-612. Commissioner may summons witnesses.

    A commissioner in chancery, to whom has been referred any matter, may compel the attendance of all needed witnesses by summons. A summonsed witness who fails to attend shall be reported to the court for appropriate contempt proceedings.

    History. Code 1950, § 8-252; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-612 changes former § 8-252 by making the court solely responsible for the punishment of witnesses who fail to respond to a summons initiated by a commissioner in chancery.

    Michie’s Jurisprudence.

    For related discussion, see 8A M.J. Executions, § 70.

    CASE NOTES

    Section inapplicable to proceeding under § 8.01-506 . —

    This section was inapplicable to the special proceeding authorized by former § 8.01-506 to ascertain the assets of a judgment debtor. Early Used Cars, Inc. v. Province, 218 Va. 605 , 239 S.E.2d 98, 1977 Va. LEXIS 297 (1977) (decided under prior law).

    § 8.01-613. Commissioner may ask instructions of court.

    A commissioner, who has doubts as to any point which arises before him, may, in writing, submit the point to the court, who may instruct him thereon.

    History. Code 1950, § 8-253; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 16 M.J. Reference and Commissioners, § 9.

    § 8.01-614. His power to adjourn his proceedings.

    A commissioner in chancery may adjourn his proceedings from time to time, after the day to which notice was given, without any new notice, until his report is completed; and, when it is completed, it may be filed in the clerk’s office at any time thereafter. The commissioner may, if it shall appear to him necessary, adjourn such proceedings, to any place within the Commonwealth, and there continue such proceedings and take depositions and other evidence in like manner and with like force and effect as if the same were done in the place where he was appointed, and the commissioner shall have the power to compel the attendance of witnesses before him in the manner prescribed by § 8.01-612 .

    History. Code 1950, §§ 8-254, 8-255; 1977, c. 617.

    REVISERS’ NOTE

    This section combines and condenses former §§ 8-254 and 8-255 without substantive change.

    Former § 8-256 (How report to be made out . . .) is to be deleted as the matters set forth are largely addressed by the Rules of Court. (See Rule 2:18). Costs are currently provided under chapter 3 in Title 14.1 (Costs, Etc.).

    Michie’s Jurisprudence.

    For related discussion, see 16 M.J. Reference and Commissioners, § 16.

    § 8.01-615. When cause heard on report; time for filing exceptions.

    A cause may be heard by the court upon a commissioner’s report. Subject to the Rules of Court regarding dispensing with notice of taking proofs and other proceedings, reasonable notice of such hearing shall be given to counsel of record and to parties not represented by counsel. Exceptions to the commissioner’s report shall be filed within ten days after the report has been filed with the court, or for good cause shown, at a later time specified by the court.

    This section shall not apply to the report of a commissioner appointed to sell property; in such cases the report of such commissioner, when filed in the clerk’s office, shall be either confirmed, modified, or rejected forthwith.

    History. Code 1950, § 8-257; 1958, c. 67; 1977, c. 617; 1978, c. 237; 1981, c. 500; 1982, c. 339.

    REVISERS’ NOTE

    Section 8.01-615 eliminates the requirement in former § 8-257 that the commissioner’s report generally must lie in the clerk’s office for ten days before there can be a hearing. This requirement is no longer considered necessary. The court can provide for reasonable notice of a hearing. The second paragraph permits the confirmation, without notice, of a commissioner’s report regarding the sale of property.

    Michie’s Jurisprudence.

    For related discussion, see 6A M.J. Divorce and Alimony, § 40.

    CASE NOTES

    The purpose of this provision is to prevent vexatious delays and to facilitate the placing and decision of chancery causes. Hughes v. Harvey, 75 Va. 200 , 1881 Va. LEXIS 5 (1881) (decided under prior law).

    Report of commissioner in chancery prima facie correct. —

    Except as to error which appears on the face of the report of the commissioner or on the face of the decree of the trial court, a report of a commissioner in chancery is prima facie correct. Dodge v. Dodge, 2 Va. App. 238, 343 S.E.2d 363, 1986 Va. App. LEXIS 264 (1986).

    The trial court’s decree is presumed correct; however, where the evidence is heard by a commissioner and not ore tenus by the trial court, the decree is not given the same weight as a jury verdict. If such decrees are supported by substantial, competent and credible evidence in depositions, they will not be overturned on appeal. Dodge v. Dodge, 2 Va. App. 238, 343 S.E.2d 363, 1986 Va. App. LEXIS 264 (1986).

    Failure to timely object. —

    Chancellor did not abuse his discretion by refusing to consider a wife’s objection to a commissioner’s report stating that as wife had not requested an order of permanent spousal support before the commissioner, so none should issue, because wife did not file an exception to the commissioner’s report within the time allowed by the trial court. Heath v. Heath, 38 Va. App. 727, 568 S.E.2d 408, 2002 Va. App. LEXIS 493 (2002).

    As a wife filed no pleadings nor timely exceptions to the commissioner’s report, she made no cognizable claim for spousal support or equitable distribution, and the trial court thus erred in reserving these issues on her oral motion. Bowden v. Bowden, 2003 Va. App. LEXIS 546 (Va. Ct. App. Oct. 28, 2003).

    Notice. —

    Where wife was provided with five days’ notice of the date of the hearing on the exceptions the wife filed in the trial court to the commissioner’s report in the wife’s divorce case, she had reasonable notice of the exceptions hearing; the wife’s counsel, thus, could not argue that the wife was given inadequate notice of the hearing that the wife and the wife’s counsel did not attend as they had chosen to ignore communications from the husband’s counsel and the trial court, and the wife’s counsel did not file any motion to continue the hearing even though they were aware of it. Wilson v. Wilson, 2002 Va. App. LEXIS 234 (Va. Ct. App. Apr. 16, 2002).

    CIRCUIT COURT OPINIONS

    Failure to timely object. —

    Even though both parties’ objections were filed after § 8.01-615 ’s 10-day file period for objections, the court decided the case on the merits for good cause shown as neither party objected to the court deciding the exceptions on the merits. Theroux v. Blethen, 67 Va. Cir. 218, 2005 Va. Cir. LEXIS 169 (Loudoun County Apr. 5, 2005).

    § 8.01-616. Delivery of original papers of suit by clerk to commissioner.

    The clerk of a court shall, upon the request of any commissioner in chancery who has before him for execution an order made in such action, deliver to him the original papers thereof; and it shall not be necessary for the clerk to copy such papers, nor shall he charge any fee for copies of any of them, unless the same be specially ordered. The commissioner to whom such papers may be delivered, shall give his receipt therefor, and return the papers as speedily as possible to the office of the clerk of the court.

    History. Code 1950, § 8-258; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 16 M.J. Reference and Commissioners, § 16.

    § 8.01-617. Settlement of accounts of special receivers and special commissioners.

    Every circuit court, by an order entered of record, shall appoint one of its commissioners in chancery, who shall hold office at its pleasure, to state and settle the accounts of all special receivers and of all special commissioners holding funds or evidences of debt subject to the order of the court.

    All special receivers and special commissioners shall, unless their accounts have been previously verified and approved by the court, and ordered to be recorded, with reasonable promptness, and not longer than four months after any money in their hands should be distributed or at other intervals specified by the court, present to such commissioner in chancery an accurate statement of all receipts and disbursements, duly signed and supported by proper vouchers; and the commissioner in chancery shall examine and verify the same, and attach his certificate thereto approving it, if it is correct, or stating any errors or inaccuracies therein, and file same in the cause in which the special receiver or special commissioner was appointed, and present the same to the court.

    The court may at any time appoint any of its other commissioners in chancery to perform the duties herein required in any case in which the regular commissioner in chancery appointed hereunder is himself the special receiver or special commissioner whose accounts are to be settled.

    For his services performed hereunder the commissioner in chancery shall receive such compensation as the court allows, to be paid out of the fund in the hands of the special receiver or special commissioner.

    If any special receiver or special commissioner fails to make settlement as herein required within the time herein provided, he shall forfeit his compensation, or so much thereof as the court orders.

    The court may order its general receiver also to state and settle his accounts in the manner herein provided. When a general receiver settles his accounts before a commissioner of accounts or commissioner in chancery, fees charged by the commissioner are to be reasonable but may not exceed $100 per general receiver settlement or $1 per disbursement made by the general receiver as reflected in the settlement, whichever is greater.

    History. Code 1950, § 8-259; 1977, c. 617; 1988, c. 553.

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Creditors’ Suits, § 34.

    CASE NOTES

    Failure to comply with court order requiring payment of money is contempt. —

    A failure without legal excuse on the part of a special commissioner of the court to comply with a court order requiring the payment of money is a contempt and a commitment for failure to obey such an order is not imprisonment for debt. French v. Pobst, 203 Va. 704 , 127 S.E.2d 137, 1962 Va. LEXIS 209 (1962) (decided under prior law).

    § 8.01-618. Reports of such settlements; when new bond required.

    The court shall examine the reports required by § 8.01-617 , when the same are made to it; and, if satisfied of the correctness thereof, shall order them to be recorded. If it appears from the report of the commissioner that any bond of a receiver, or any bond or other security given by any person to whom money has been loaned under its order, is insufficient, the court shall order additional security to be given, or a new bond to be executed before it, in such penalty as may seem right, and with sufficient sureties. But the execution of such new bond shall not discharge the sureties in any prior bond for their liability for acts of the principal obligor done previous to the execution of such new bond.

    History. Code 1950, § 8-260; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, §§ 22, 39.

    § 8.01-618.1. Fees of special receivers and commissioners for reports.

    Special receivers and commissioners may charge, for the reports made under § 8.01-617 , the same fees allowed by law to commissioners in chancery for other reports, to be paid out of the fund in court, and charged to the respective cases therein, in such proportions as the court deems appropriate.

    History. Code 1950, § 8-262; 1977, c. 624, § 14.1-133.1; 1998, c. 872.

    § 8.01-619. Recordation of reports of such settlements.

    The circuit court clerk shall record reports of receivers and commissioners when approved by the court, in a fiduciary book and properly index same to show the name of the receiver or commissioner and also the style of the suit in which the report is made; and such book shall be kept as a public record in the office of the clerk.

    History. Code 1950, § 8-261; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-619 alters former § 8-261 by providing that the clerk shall file the commissioner’s reports after approval by the court in “a fiduciary” book (some clerk’s offices apparently do not maintain the “Settlement of Receivers and Commissioners” books called for under the former statute).

    Former § 8-262 (Fees of clerks and Commissioners) was transferred to Title 14.1.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Receivers, § 39.

    Chapter 24. Injunctions.

    § 8.01-620. General jurisdiction of circuit court to award injunctions.

    Every circuit court shall have jurisdiction to award injunctions, including cases involving violations of the Uniform Statewide Building Code, whether the judgment or proceeding enjoined be in or out of the circuit, or the party against whose proceedings the injunction be asked resides in or out of the circuit.

    History. Code 1950, § 8-610; 1977, c. 617; 1995, c. 310.

    Cross references.

    See also § 8.01-40 (unauthorized use of person’s name or picture); § 8.01-495 (executions); § 8.01-123 (damages to property detained under injunction to judgment for specific property); § 8.01-549 (attachments); § 8.01-495 (executions on judgments); As to jurisdiction of circuit courts generally, see § 17.1-513 . § 38.2-1507 (liquidation of insurance companies); §§ 48-7 through 48-15 (houses of prostitution); § 56-6 (against public service corporation).

    Law Review.

    For article, “Making the Case to Avoid Entering the eBay Marketplace: A Recommended Analytical Framework for Evaluating Requests for Permanent Injunctions in Virginia,” see 32 Regent U.L. Rev. 1 (2019).

    Michie’s Jurisprudence.

    For related discussion, see 10A M.J. Injunctions, §§ 1, 71, 72.

    CASE NOTES

    This section gives the judge jurisdiction only to award the injunction, not to hear and determine the cause. Randolph v. Tucker, 37 Va. (10 Leigh) 655, 1840 Va. LEXIS 11 (1840) (decided under prior law).

    Ripeness required. —

    Where a suit attempted to mount a collateral attack on state court judgments, which the federal district court lacked jurisdiction to hear, and, further, assumed that the Virginia courts would not follow the Constitution, an assumption that raised issues not yet ripe for decision, such claims would be dismissed for lack of subject matter and supplemental jurisdiction, respectively. Jordahl v. Democratic Party, 947 F. Supp. 236, 1996 U.S. Dist. LEXIS 16956 (W.D. Va. 1996), aff'd, 122 F.3d 192, 1997 U.S. App. LEXIS 19245 (4th Cir. 1997).

    Claims in federal district court properly dismissed. —

    Claims under 42 U.S.C. § 1983 for alleged injuries caused by state court injunctions enjoining plaintiffs from distributing voters guides were properly dismissed by the federal district court under the Rooker-Feldman doctrine, which prohibits United States district courts from sitting in direct review of state court decisions, except for habeas corpus actions. Jordahl v. Democratic Party, 122 F.3d 192, 1997 U.S. App. LEXIS 19245 (4th Cir. 1997), cert. denied, 522 U.S. 1077, 118 S. Ct. 856, 139 L. Ed. 2d 756, 1998 U.S. LEXIS 508 (1998).

    CIRCUIT COURT OPINIONS

    Irreparable harm. —

    Where any potential injury that a police officer might suffer pending reinstatement could be compensated by monetary damages, the officer did not show that the officer would suffer irreparable harm without a preliminary injunction. Villalobos v. City of Norfolk, 62 Va. Cir. 158, 2003 Va. Cir. LEXIS 297 (Norfolk June 13, 2003).

    Injunction granted where irreparable harm and success on the merits likely. —

    Defendants were enjoined from operating the machine where the court found a likelihood of irreparable harm to plaintiff as, inter alia, the machine would depreciate quickly while used in the manufacturing process of defendants and plaintiff was likely to succeed on the merits as the documents indicated that the appropriate financing statements were filed to secure the lien of plaintiff to the machine. Hardinge, Inc. v. Buhler, 72 Va. Cir. 39, 2006 Va. Cir. LEXIS 190 (Amherst County May 30, 2006).

    Committee of a political party was entitled — due to the COVID-19 health crisis — to a temporary injunction enjoining the Virginia Department of Elections and the Virginia State Board of Elections from enforcing statutory provisions against the committee so that the political party could then select its candidate for a Congressional district because the committee was likely to prevail on the merits and the harm of the party’s candidate not appearing on the general election ballot was irreparable. Seventh Cong. Dist. Republican Comm. v. Va. Dep't of Elections, 105 Va. Cir. 61, 2020 Va. Cir. LEXIS 56 (Richmond Apr. 14, 2020).

    Injunctive relief denied. —

    State senator’s motion for a temporary injunction under § 8.01-620 et seq. to enjoin the lieutenant governor from casting any tie-breaking vote was denied because the senator was unlikely to be unsuccessful on the merits of his declaratory judgment action due to separation of powers under Va. Const. art. III, § 1; the circuit court cannot intervene in the normal operating procedures of the senate and enjoin one of the highest officials of the Commonwealth from performing his or her constitutional duties, and the power of an injunction or a declaratory judgment action cannot be used to force parties in disagreement to negotiate a compromise. McEachin v. Bolling, 84 Va. Cir. 76, 2011 Va. Cir. LEXIS 189 (Richmond Dec. 16, 2011).

    Buyer did not state any special basis for an injunction; one contract provision’s purpose was to allow the prevailing non-defaulting party and the brokers to recover in an action under the contract, in addition to fees and damages, but the provision did not provide for injunctions like the claim made, and the buyer failed, for purposes of § 8.01-620 et seq., to allege irreparable injury and lack of an adequate remedy, among other things, and the adequate remedies at law asserted in other counts disqualified injunctive relief. Langmaid v. Lee V, 86 Va. Cir. 118, 2013 Va. Cir. LEXIS 1 (Northumberland County Jan. 9, 2013).

    Doctor was not entitled to a temporary injunction under §§ 8.01-620 and 8.01-628 to enjoin his employer from enforcing a restrictive covenant in the parties’ employment agreement until the enforceability and applicability of said covenant was determined because the doctor could not establish the likelihood of success on the merits where, while he might ultimately prevail on the issue of the enforceability of the non-compete clause at a hearing on the permanent injunction, the issue was presently in equipoise as between the parties. Fame v. Allergy & Immunology, PLC, 91 Va. Cir. 66, 2015 Va. Cir. LEXIS 107 (Roanoke July 28, 2015).

    Circuit court could not find that the employer was likely to succeed on the Virginia Uniform Trade Secret Act claim where the status of the customer and pricing information needed to be examined in light of the facts of the instant case. SanAir Techs. Lab., Inc. v. Burrington, 91 Va. Cir. 206, 2015 Va. Cir. LEXIS 192 (Chesterfield County Sept. 25, 2015).

    Former employer’s motion for a temporary injunction was denied where the covenant not to compete was subject to interpretation and needed to be examined in light of the facts of the instant case, and in light of the facts already presented the court could not find that the employer was likely to succeed on the merits of a breach of contract claim. SanAir Techs. Lab., Inc. v. Burrington, 91 Va. Cir. 206, 2015 Va. Cir. LEXIS 192 (Chesterfield County Sept. 25, 2015).

    Request for injunctive relief was denied as the treasurer failed to allege irreparable harm caused by the city council and city officials and failed to demonstrate that no adequate remedy at law was available. Pritchett v. City of Petersburg City Council, 103 Va. Cir. 270, 2019 Va. Cir. LEXIS 623 (Petersburg Oct. 22, 2019).

    Ripeness required. —

    State senator’s motion for a temporary injunction under § 8.01-620 et seq. to enjoin the lieutenant governor from casting any tie-breaking vote was denied because the senator was unlikely to be unsuccessful on the merits of his declaratory judgment action due to ripeness; no action had been taken by the lieutenant governor or the General Assembly, there was no showing of irreparable harm, both sides could potentially be injured, and the public interest would not be served by having a deadlocked Senate that was unable to agree on organization. McEachin v. Bolling, 84 Va. Cir. 76, 2011 Va. Cir. LEXIS 189 (Richmond Dec. 16, 2011).

    Injunctive relief granted. —

    Circuit court granted injunctive relief sought by a landowner against his neighbor, where the neighbor intentionally built a garage, with knowledge of the landowner’s objection, in violation of a restrictive covenant, despite the fact that he had adequate space on his property to conform to the covenant’s space limitations as to where said building could have been built. Wallace v. Hoggard, 66 Va. Cir. 369, 2005 Va. Cir. LEXIS 1 (Portsmouth Jan. 21, 2005).

    Buyer of grapes, under a grape purchase agreement, was entitled to a temporary injunction requiring that the seller deliver grapes to the buyer who would maintain them pending the outcome of the case on the merits because the buyer did not have an adequate remedy at law and the balance of equities tipped in the buyer’s favor. Ducard Vineyards, Inc. v. Lazy Creek Vineyards & Winery, 99 Va. Cir. 449, 2018 Va. Cir. LEXIS 133 (Madison County Aug. 12, 2018).

    Parents of gifted public school students were entitled to an injunction against a school board because they sufficiently alleged that they and their child were immediately or imminently affected by a school board decision to remove standardized testing as a prerequisite for admission to a Governor’s School since Governor’s Schools were, by definition, programs developed solely for gifted students, the elimination of the standardized tests, and the failure to replace those tests with other equivalent testing, allowed a cause of action for invoking judicial review since such actions might, in addition to violating promulgated regulations, violate the statutory prohibition against adopting policies in contravention of promulgated regulations. KC v. Fairfax Cty. Sch. Bd., 2021 Va. Cir. LEXIS 13 (Fairfax County Jan. 21, 2021).

    Demurrer was overruled. —

    City’s cross-bill stated three causes of action and plaintiffs’ demurrer was overruled where the City sought the following relief: (1) a determination that Alexandria, Va., Ordinance No. 4328 applied in full force and effect to an employer’s operations at a specific location, (2) a determination that the employer failed to comply with the specific provisions of Alexandria, Va., Ordinance No. 4337, (3) an order permanently enjoining the employer from continuing its use and operation at a specific location, and (4) an order levying a cumulative penalty of $3000 against the employer. Ace Temps., Inc. v. City Council of Alexandria, 70 Va. Cir. 61, 2005 Va. Cir. LEXIS 308 (Alexandria Oct. 11, 2005).

    Landfill owners’ demurrer was overruled because a city properly sought to enjoin their activities as a violation of a city ordinance since, inter alia, the court had subject matter jurisdiction, while the statutory stay might impose a procedural bar, it did not suggest that the stay was jurisdictional, the injunction remedy was in addition to those imposed by the ordinance, the statute authorized zoning ordinances related to excavation or mining of soil or natural resources and the city’s ordinances related to the filling of borrow pits previously mined, and the city was not preempted from “regulating” a solid waste management facility. City of Chesapeake v. Thrasher, 106 Va. Cir. 205, 2020 Va. Cir. LEXIS 479 (Chesapeake Oct. 26, 2020).

    § 8.01-621. Repealed by Acts 1987, c. 567.

    Cross references.

    As to venue in proceedings to award an injunction, see subdivision 15 of § 8.01-261 .

    § 8.01-622. Injunction to protect plaintiff in suit for specific property.

    An injunction may be awarded to protect any plaintiff in a suit for specific property, pending either at law or in equity, against injury from the sale, removal, or concealment of such property.

    History. Code 1950, § 8-612; 1977, c. 617.

    Cross references.

    As to recovery of damages upon dissolution of injunction, see § 8.01-123 .

    Michie’s Jurisprudence.

    For related discussion, see 10A M.J. Injunctions, § 61.

    CIRCUIT COURT OPINIONS

    Bank account. —

    When the executor of the decedent’s estate alleged that a relative of the decedent became co-owner and payable on death beneficiary of the decedent’s checking account at a bank through undue influence shortly before the decedent’s death the issuance of a temporary injunction was appropriate because the executor was likely to succeed on the merits, the executor would have suffered irreparable injury in the absence of injunctive relief, the balance of equities tipped in the executor’s favor, and injunctive relief was in the public interest. Fontaine v. Watson, 106 Va. Cir. 430, 2020 Va. Cir. LEXIS 496 (Henry County Dec. 23, 2020).

    § 8.01-622.1. Injunction against assisted suicide; damages; professional sanctions.

    1. Any person who knowingly and intentionally, with the purpose of assisting another person to commit or attempt to commit suicide, (i) provides the physical means by which another person commits or attempts to commit suicide or (ii) participates in a physical act by which another person commits or attempts to commit suicide shall be liable for damages as provided in this section and may be enjoined from such acts.
    2. A cause of action for injunctive relief against any person who is reasonably expected to assist or attempt to assist a suicide may be maintained by any person who is the spouse, parent, child, sibling or guardian of, or a current or former licensed health care provider of, the person who would commit suicide; by an attorney for the Commonwealth with appropriate jurisdiction; or by the Attorney General. The injunction shall prevent the person from assisting any suicide in the Commonwealth.
    3. A spouse, parent, child or sibling of a person who commits or attempts to commit suicide may recover compensatory and punitive damages in a civil action from any person who provided the physical means for the suicide or attempted suicide or who participated in a physical act by which the other person committed or attempted to commit suicide.
    4. A licensed health care provider who assists or attempts to assist a suicide shall be considered to have engaged in unprofessional conduct for which his certificate or license to provide health care services in the Commonwealth shall be suspended or revoked by the licensing authority.
    5. Nothing in this section shall be construed to limit or conflict with § 54.1-2971.01 or the Health Care Decisions Act (§ 54.1-2981 et seq.). This section shall not apply to a licensed health care provider who (i) administers, prescribes or dispenses medications or procedures to relieve another person’s pain or discomfort and without intent to cause death, even if the medication or procedure may hasten or increase the risk of death, or (ii) withholds or withdraws life-prolonging procedures as defined in § 54.1-2982. This section shall not apply to any person who properly administers a legally prescribed medication without intent to cause death, even if the medication may hasten or increase the risk of death.
    6. For purposes of this section:“Licensed health care provider” means a physician, surgeon, podiatrist, osteopath, osteopathic physician and surgeon, physician assistant, nurse, dentist or pharmacist licensed under the laws of this Commonwealth.“Suicide” means the act or instance of taking one’s own life voluntarily and intentionally.

    History. 1998, c. 624; 2015, c. 710.

    Cross references.

    For provisions authorizing a physician to prescribe a dosage of a pain-relieving agent in excess of the recommended dosage in certain cases, see §§ 54.1-2971.01, 54.1-3408.1. For provision that the witholding or withdrawal of life-prolonging procedures in accordance with the provisions of the Health Care Decisions Act shall not, for any purpose, constitute a suicide, see § 54.1-2991.

    The 2015 amendments.

    The 2015 amendment by c. 710 substituted “an attorney for the Commonwealth” for “a Commonwealth’s attorney” in the first sentence of subsection B; and substituted “punitive damages” for “exemplary damages” in subsection C.

    Michie’s Jurisprudence.

    For related discussion, see 10A M.J. Injunctions, § 70.

    § 8.01-623. Injunction against decree subject to bill of review; limitations to bill of review.

    A court allowing a bill of review may award an injunction to the decree to be reviewed. But no bill of review shall be allowed to a final decree, unless it be exhibited within six months next after such decree, except that a person under a disability as defined in § 8.01-2 may exhibit the same within six months after the removal of his or her disability. In no case shall such a bill be filed without the leave of court first obtained, unless it be for error of law apparent upon the face of the record.

    History. Code 1950, § 8-613; 1977, c. 617.

    REVISERS’ NOTE

    The language “. . . an infant or insane person . . .” in former § 8-613 has been replaced with the language “. . . a person under a disability as defined in § 8.01-2 .”

    Law Review.

    For annual survey commentary, “The Merger of Common-Law and Equity Pleading in Virginia,” see 41 U. Rich. L. Rev. 77 (2006).

    Michie’s Jurisprudence.

    For related discussion, see 3A M.J. Bill of Review, §§ 2, 12, 20, 21, 26.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Bill in equity. —

    Circuit court erred in finding that a bill of review was inappropriate where a church sought to challenge a city’s action to sell the church’s property to collect delinquent real estate taxes. The city’s action was brought by a bill in equity, so the circuit court erred in holding that the underlying action was a matter at law. Emmanuel Worship Ctr. v. City of Petersburg, 867 S.E.2d 291, 2022 Va. LEXIS 1 (Va. 2022).

    A bill of review is limited in scope and is rarely utilized in Virginia procedure. Indeed, in modern appellate practice wherein most litigants have a statutory right to appeal from judgments of trial courts, use of a bill of review is discouraged. Nonetheless, it remains an available procedural device until abolished by the General Assembly. Blunt v. Lentz, 241 Va. 547 , 404 S.E.2d 62, 7 Va. Law Rep. 2413, 1991 Va. LEXIS 62 (1991).

    Trial court was required to examine both record and decree. —

    Where bill of review identified, with the requisite degree of accuracy and definiteness, errors of law which allegedly were in the record and in the decree, the trial court was required to examine both the record and the decree to determine whether errors of law existed. By limiting its examination to whether errors of law existed upon face of the decree, the trial court erred because it failed to examine both the decree and the record. Blunt v. Lentz, 241 Va. 547 , 404 S.E.2d 62, 7 Va. Law Rep. 2413, 1991 Va. LEXIS 62 (1991).

    Mental capacity. —

    Husband failed to show by clear and convincing evidence under § 8.01-623 that a property settlement agreement was invalid based on his lack of mental capacity because the conclusions of his neurologist that the husband had short-term memory problems did not compel a conclusion that he did not comprehend the nature and character of the agreement and the consequences of executing the agreement. Coloccia v. Coloccia, 2007 Va. App. LEXIS 76 (Va. Ct. App. Mar. 6, 2007).

    II.Decisions Under Prior Law.

    Editor’s note.

    “Bill of review” defined. —

    A bill of review is a bill filed to reverse or modify a decree that has been signed and enrolled for error in law apparent upon the face of such decree or on account of new facts discovered since publication was passed in the original cause, and which could not by the exercise of due diligence have been discovered or used before the decree was made. Phipps v. Wise Hotel Co., 116 Va. 739 , 82 S.E. 681 , 1913 Va. LEXIS 1 (1913).

    The office of a bill of review is to have the trial court reexamine a previous final decree in the cause and to accomplish a reversal, modification or nullification of the decree. Rice v. Standard Prods. Co., 199 Va. 380 , 99 S.E.2d 529, 1957 Va. LEXIS 201 (1957).

    Courts are reluctant to reverse decrees on such bills. —

    Unless parties can be placed in status quo, courts are properly reluctant to reverse decrees on bill of review unless the errors complained of are clear and have been specifically excepted to and pointed out in the original proceedings. Powers v. Howard, 131 Va. 275 , 108 S.E. 687 , 1921 Va. LEXIS 22 (1921).

    A bill of review lies only to a final decree. Roanoke Nat'l Bank v. Farmers' Nat'l Bank, 84 Va. 603 , 5 S.E. 682 , 1888 Va. LEXIS 115 (1888); Diffendal v. Virginia Midland R.R., 86 Va. 459 , 10 S.E. 536 , 1890 Va. LEXIS 4 (1890); Epes v. Williams, 89 Va. 794 , 17 S.E. 235 , 1893 Va. LEXIS 106 (1893); Diamond State Iron Co. v. Rarig & Co., 93 Va. 595 , 25 S.E. 894 , 1896 Va. LEXIS 117 (1896); Dellinger v. Foltz, 93 Va. 729 , 25 S.E. 998 , 1896 Va. LEXIS 131 (1896).

    What is a final decree. —

    A decree which disposes of the whole subject and gives all the relief that was contemplated, so that nothing remains to be done in the cause, is a final decree. Vanmeter v. Vanmeter, 44 Va. (3 Gratt.) 148, 1846 Va. LEXIS 38 (1846); Jones v. Turner, 81 Va. 709 , 1886 Va. LEXIS 134 (1886); Parker v. Logan Bros. & Co., 82 Va. 376 , 4 S.E. 613 , 1886 Va. LEXIS 46 (1886); Yates v. Wilson, 86 Va. 625 , 10 S.E. 976 , 1890 Va. LEXIS 22 (1890).

    Exception when there is clerical error in consent decree. —

    A decree or order made by consent of the counsel for the parties cannot be set aside by bill of review, unless by clerical error something was inserted in the order to which the party had not consented, in which case a bill of review might lie. Prince v. McLemore, 108 Va. 269 , 61 S.E. 802 , 1908 Va. LEXIS 31 (1908).

    A bill of review must be filed within the time prescribed by this section and the limitation there prescribed is not subject to any exceptions not contained in the statute. No inherent equity can create an exception where the statute makes none, and a mere want of knowledge of a creditor is insufficient to suspend the operation of the statute. Matthews & Co. v. Progress Distilling Co., 108 Va. 777 , 62 S.E. 924 , 1908 Va. LEXIS 96 (1908); Searles v. Gordon, 156 Va. 289 , 157 S.E. 759 , 1931 Va. LEXIS 192 (1931).

    It is not necessary to plead the statutory limitations against a bill of review. It ought to appear in the bill itself that it is exhibited within the time prescribed by law, or that the complainant is protected by some of the savings in the statute. Otherwise it ought not to be received. And if the fact alleged to prevent the operation of the decree be not true, it may be denied by the answer of the other party. On the proofs, if it is shown not to be true, the bill of review should be rejected. Shepherd v. Larue, 20 Va. (6 Munf) 529, 1820 Va. LEXIS 49 (1820).

    Who may file. —

    A bill of review can only be filed by a person who was a party or privy to the former suit. Even persons having an interest in the cause, if not aggrieved by the particular errors assigned in the decree, cannot maintain a bill of review, however injuriously the decree may affect the rights of third parties. Armstead v. Bailey, 83 Va. 242 , 2 S.E. 38 , 1887 Va. LEXIS 58 (1887); Heermans v. Montague, 20 S.E. 899 , 1890 Va. LEXIS 120 (Va. 1890); Gibson v. Green, 89 Va. 524 , 16 S.E. 661 , 1893 Va. LEXIS 68 (1893).

    A bill of review does not lie for assignees. Armstead v. Bailey, 83 Va. 242 , 2 S.E. 38 , 1887 Va. LEXIS 58 (1887); Gibson v. Green, 89 Va. 524 , 16 S.E. 661 , 1893 Va. LEXIS 68 (1893).

    On a bill of review by an infant, the infant is entitled to show any good cause existing, at date of rendition, against the original decree against him. Pracht & Co. v. Lange, 81 Va. 711 , 1886 Va. LEXIS 135 (1886) (see also Zirkle v. McCue, 67 Va. (26 Gratt.) 517 (1875); Morriss v. Virginia Ins. Co., 85 Va. 588 , 8 S.E. 383 (1888)).

    This section extends the time in which infants may file a bill of review, but it does not authorize them to attack decrees as a general rule upon any grounds except those which would be available to other parties. Powers v. Howard, 131 Va. 275 , 108 S.E. 687 , 1921 Va. LEXIS 22 (1921).

    Grounds for review in general. —

    In Virginia, as elsewhere, the general rule is that a final decree cannot be reheard except upon two grounds: (1) error apparent on the face of the record, or (2) after-discovered evidence. Gills v. Gills, 126 Va. 526 , 101 S.E. 900 , 1920 Va. LEXIS 7 (1920).

    Only two grounds are available for a bill of review, viz.: (1) for error of law apparent on the face of the record, or (2) newly discovered evidence. Rice v. Standard Prods. Co., 199 Va. 380 , 99 S.E.2d 529, 1957 Va. LEXIS 201 (1957).

    Error apparent on record as ground. —

    Error apparent upon the face of the record is not restricted to error in the decree. To determine on bill of review whether or not error of law exists, the court will examine the bill and answer filed in the cause, all orders and decrees made and entered therein, and all other proceedings, to ascertain whether upon the whole case error of law has been committed. Hancock v. Hutcherson, 76 Va. 609 , 1882 Va. LEXIS 63 (1882); Pracht & Co. v. Lange, 81 Va. 711 , 1886 Va. LEXIS 135 (1886); Valz v. Coiner, 110 Va. 467 , 66 S.E. 730 , 1909 Va. LEXIS 167 (1909); Gills v. Gills, 126 Va. 526 , 101 S.E. 900 , 1920 Va. LEXIS 7 (1920); Powers v. Howard, 131 Va. 275 , 108 S.E. 687 , 1921 Va. LEXIS 22 (1921).

    If error of law be apparent from an inspection of the record in the cause, and a final decree has been entered, a proper case for a bill of review is presented. Powers v. Howard, 131 Va. 275 , 108 S.E. 687 , 1921 Va. LEXIS 22 (1921) (see also Gray v. Francis, 139 Va. 350 , 124 S.E. 446 (1924)).

    On a bill of review attacking a final decree for error of law on the face of the record the court cannot consider the sufficiency or insufficiency of the proofs beyond the evidence of statement of facts recited in the decree. Rice v. Standard Prods. Co., 199 Va. 380 , 99 S.E.2d 529, 1957 Va. LEXIS 201 (1957).

    In a suit to determine riparian boundaries, no error was apparent from the face of the record which could be reached by bill of review. Rice v. Standard Prods. Co., 199 Va. 380 , 99 S.E.2d 529, 1957 Va. LEXIS 201 (1957).

    The action of the court in overruling a motion to force production of further evidence, made after both parties had rested and counsel had argued, should have been questioned by petition to rehear or appeal rather than by bill of review. Rice v. Standard Prods. Co., 199 Va. 380 , 99 S.E.2d 529, 1957 Va. LEXIS 201 (1957).

    Bill should be denied when errors not apparent. —

    A bill of review ought to specify with some degree of accuracy and definiteness the errors relied upon. Thus, where it nowhere appears that the action of the court relied upon as ground for the bill of review was excepted to, and there was nothing upon the face of the record to show that such action was erroneous, the bill cannot be entertained on that ground. Phipps v. Wise Hotel Co., 116 Va. 739 , 82 S.E. 681 , 1913 Va. LEXIS 1 (1913); Powers v. Howard, 131 Va. 275 , 108 S.E. 687 , 1921 Va. LEXIS 22 (1921).

    Also, for errors of judgment. —

    When the errors sought to be corrected by a bill of review are not errors of law but errors of judgment in the determination of facts the bill should be denied. The only remedy in such case is by appeal. Rawlings v. Rawlings, 75 Va. 76 , 1880 Va. LEXIS 7 (1880); Hancock v. Hutcherson, 76 Va. 609 , 1882 Va. LEXIS 63 (1882); Kern v. Wyatt, 89 Va. 885 , 17 S.E. 549 , 1893 Va. LEXIS 117 (1893); Rice v. Standard Prods. Co., 199 Va. 380 , 99 S.E.2d 529, 1957 Va. LEXIS 201 (1957).

    Newly discovered evidence as ground. —

    A bill of review for newly discovered evidence will not lie where the evidence is simply confirmatory or cumulative. It must be decisive in its character, and such as would, if true, produce a different decree upon rehearing, and must be evidence of which the party was ignorant at the time of the decree, and could not have learned by the exercise of reasonable diligence. Harman v. McMullin, 85 Va. 187 , 7 S.E. 349 , 1888 Va. LEXIS 26 (1888); Reynolds v. Reynolds, 88 Va. 149 , 13 S.E. 395 , 1891 Va. LEXIS 15 (1891); Kern v. Wyatt, 89 Va. 885 , 17 S.E. 549 , 1893 Va. LEXIS 117 (1893); Durbin v. Roanoke Bldg. Co., 108 Va. 468 , 62 S.E. 339 , 1908 Va. LEXIS 54 (1908); Becker v. Johnson, 111 Va. 245 , 68 S.E. 986 , 1910 Va. LEXIS 34 (1910); Sutherland v. Gent, 111 Va. 511 , 69 S.E. 340 , 1910 Va. LEXIS 77 (1910); Phipps v. Wise Hotel Co., 116 Va. 739 , 82 S.E. 681 , 1913 Va. LEXIS 1 (1913); Goode v. Bryant, 118 Va. 314 , 87 S.E. 588 , 1915 Va. LEXIS 145 (1915); Gills v. Gills, 126 Va. 526 , 101 S.E. 900 , 1920 Va. LEXIS 7 (1920).

    Leave of court necessary when bill based on newly discovered facts. —

    There need be no leave of court to file a bill of review based on error of law, but such leave is necessary when the bill of review is based on newly discovered facts. Hatcher v. Hatcher, 77 Va. 600 , 1883 Va. LEXIS 97 (1883); Heermans v. Montague, 20 S.E. 899 , 1890 Va. LEXIS 120 (Va. 1890).

    Illustrative cases. —

    A deposition was excepted to on the ground that the witness making it was incapable of testifying, and the commissioner, without specifically passing upon the objection, plainly indicated that he gave no weight or effect to the deposition. The decree expressly mentioned the deposition and exception, and in terms clearly sustained the latter. It was held that this action clearly appeared upon the face of the record, and if it is error and material, it is not a conclusion of fact depending upon the evidence, but is an error of law, which may be taken advantage of by bill of review. Powers v. Howard, 131 Va. 275 , 108 S.E. 687 , 1921 Va. LEXIS 22 (1921).

    It is not ground for a bill of review that the party was prevented from proving important facts by the wrong advice of counsel; nor that counsel was prevented by illness from attending the trial. Franklin v. Wilkinson, 17 Va. (3 Munf) 112, 1812 Va. LEXIS 21 (1812).

    That certain documentary evidence intended to be used in the original cause was lost or mislaid by the complainant’s counsel, and could not be found till after the hearing is no ground for a bill of review. Jones v. Pilcher, 20 Va. (6 Munf) 425, 1819 Va. LEXIS 43 (1819).

    An error in determining the ownership of attached property is one in fact, and not one of law and cannot be a subject of a bill of review. Kern v. Wyatt, 89 Va. 885 , 17 S.E. 549 , 1893 Va. LEXIS 117 (1893).

    Effect of injunction. —

    When upon filing a bill of review, an injunction against the decree to be reversed has been granted, and all that was done in the suit has been set aside, the effect is to leave all the issues presented in that record undetermined to await the final decree of the court upon the bill of review. The former decree cannot be pleaded anywhere as a final adjudication of the controversy. Sutherland v. Gent, 111 Va. 511 , 69 S.E. 340 , 1910 Va. LEXIS 77 (1910).

    § 8.01-624. Duration of temporary injunctions to be fixed therein.

    When any court authorized to award injunctions shall grant a temporary injunction, either with or without notice to the adverse party, such court shall prescribe in the injunction order the time during which such injunction shall be effective and at the expiration of that time such injunction shall stand dissolved unless, before the expiration thereof, it be enlarged. Such injunction may be enlarged or a further injunction granted by the court in which the cause is pending or by the court to whom the bill is addressed in the event the cause be not matured, after reasonable notice to the adverse party, or to his attorney of record of the time and place of moving for the same.

    History. Code 1950, § 8-614; 1977, c. 617.

    REVISERS’ NOTE

    The words “at law or in fact” following “attorney” in former § 8-614 have been replaced with “of record.”

    CIRCUIT COURT OPINIONS

    Temporary injunction granted during litigation dissolved after trial. —

    Temporary injunction granted to franchisees during the pendency of their litigation against the franchisor and others, wherein they alleged that the franchisor had breached its duties and that the non-compete restrictive covenant was unenforceable, was dissolved after trial whereupon the court found that the franchisees had not succeeded on the merits of their claims. Brenco Enters. v. Takeout Taxi Franchising Sys., 2003 Va. Cir. LEXIS 86 (Fairfax County May 2, 2003).

    § 8.01-625. Dissolution of injunctions.

    Any court wherein an injunction has been awarded may at any time when such injunction is in force dissolve the same after reasonable notice to the adverse party, or to his attorney of record, in which notice shall be set forth the grounds upon which such dissolution will be asked, unless such grounds be set forth in an answer previously filed in the case by the party giving such notice.

    History. Code 1950, § 8-615; 1977, c. 617.

    REVISERS’ NOTE

    The reference in former § 8-615 to the adverse party’s attorney-in-fact has been deleted. Other minor language changes have been made.

    Former § 8-616 (Records of certain orders in vacation) has been deleted in conformity with the elimination of the distinction between what a court may or may not do in term and vacation. (See § 8.01-445 .) Moreover, it is assumed that the clerk will handle the papers and orders of the case as he does in all other cases.

    Former § 8-617 (No appeal from certain orders) has also been deleted, since it is inconsistent with § 8.01-670 which permits an appeal from an interlocutory or a final order granting or dissolving an injunction.

    Michie’s Jurisprudence.

    For related discussion, see 10A M.J. Injunctions, §§ 85, 112.

    CASE NOTES

    Dissolution by circuit court judge when issued by appellate justice. —

    While an injunction awarded by one of the judges (now justices) of the Supreme Court, after due hearing upon notice, will not be precipitately dissolved under the authority granted by this section, the circuit court, or the judge thereof in vacation, after reasonable notice, has the unquestioned power to dissolve an injunction granted by one of the judges (now justices) of the Supreme Court, who acts, not in an appellate capacity, but as a judge of another court of coordinate jurisdiction. To the extent that the cases of Toll Bridge v. Free Bridge, 22 Va (1 Rand.) 206 (1822), and Wilder v. Kelley, 88 Va. 274 , 13 S.E. 483 (1891), are in conflict with this view, they are overruled. Nichols v. Central Va. Power Co., 143 Va. 405 , 130 S.E. 764 , 1925 Va. LEXIS 276 (1925) (decided under prior law).

    § 8.01-626. Review of injunction by Court of Appeals.

    Wherein a circuit court (i) grants an injunction or (ii) refuses an injunction or (iii) having granted an injunction, dissolves or refuses to enlarge it, an aggrieved party may file a petition for review with the clerk of the Court of Appeals within 15 days of the circuit court’s order. The clerk shall assign the petition to a three-judge panel of the Court of Appeals. The aggrieved party shall serve a copy of the petition for review on the counsel for the opposing party, which may file a response within seven days from the date of service unless the court determines a shorter time frame. The petition for review shall be accompanied by a copy of the proceedings, including the original papers and the court’s order respecting the injunction. The court may take such action thereon as it considers appropriate under the circumstances of the case.

    When the Court of Appeals has initially acted upon a petition for review of an order of a circuit court respecting an injunction, a party aggrieved by such action of the Court of Appeals may, within 15 days of the order of the Court of Appeals, present a petition for review of such order to the clerk of the Supreme Court. The clerk shall assign the petition to a three-justice panel of the Supreme Court. The aggrieved party shall serve a copy of the petition for review on the counsel for the opposing party, which may file a response within seven days from the date of service unless the court determines a shorter time frame. The petition for review shall be accompanied by a copy of the proceedings before the circuit court, including the original papers and the circuit court’s order respecting the injunction, and a copy of the order of the Court of Appeals from which review is sought. The Supreme Court may take such action thereon as it considers appropriate under the circumstances of the case.

    Nothing in this section shall be construed to prevent the Court of Appeals or the Supreme Court from resolving a petition for review by an order joined by more than one judge or justice. An order issued by a justice of the Supreme Court does not become a judgment of the court except on the concurrence of at least three justices, as provided in § 17.1-308 .

    History. Code 1950, § 8-618; 1977, c. 617; 1984, c. 703; 2014, c. 526; 2021, Sp. Sess. I, c. 489.

    Editor’s note.

    Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

    The 2014 amendments.

    The 2014 amendment by c. 526 in the first and second paragraphs substituted “15” for “fifteen,” added the second sentence, and in the third sentence inserted “for review”; and in the first paragraph made a minor stylistic change.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, rewrote the section.

    Cross references.

    For a petition for review pursuant to this section, see Supreme Court Rule 5:17A.

    Law Review.

    For note discussing the Virginia Judicial Council’s intermediate appellate court proposal, see 16 U. Rich. L. Rev. 209 (1982).

    For an article, ‘Final and Interlocutory Appeals in Virginia,‘ see 8 Geo. Mason L. Rev. 337 (1999).

    For annual survey article, “Civil Practice and Procedure,” see 46 U. Rich. L. Rev. 9 (2011).

    Michie’s Jurisprudence.

    For related discussion, see 10A M.J. Injunctions, §§ 72, 149.

    CASE NOTES

    Analysis

    Editor’s note.

    The case notes under this section predating amendments by Acts 2021, Sp. Sess. I, c. 489, effective January 1, 2022, should be reviewed carefully in light of those changes.

    The cases cited below were decided under corresponding provisions of former law. The terms “this statute” and “this section,” as used below, refer to former provisions.

    I.Decisions Under Current Law.

    Section not substitute for appeal under § 8.01-670 . —

    The summary procedure for review of orders regarding injunctions under this section may not be employed as a substitute for an appeal under § 8.01-670 when a final judgment within the meaning of § 8.01-670 has been entered in the circuit court. Omega Corp. v. Cobb, 222 Va. 875 , 292 S.E.2d 44, 1981 Va. LEXIS 386 (1981).

    Transfer of appeal. —

    Court of Appeals of Virginia had jurisdiction to review the punishment resulting from a finding of contempt by violation of an order of injunction, pursuant to § 8.01-626 . Chakri, LLC v. STD, Inc., 2008 Va. App. LEXIS 235 (Va. Ct. App. May 13, 2008).

    Petition for review dismissed. —

    Wife’s petition for review of a temporary injunction granted to a husband was dismissed because the husband had not yet posted a required bond, nor had the trial court determined the appropriate bond amount, so the injunction was not yet effective, and the wife was not yet an aggrieved party. Guan v. Ran, 70 Va. App. 153, 825 S.E.2d 306, 2019 Va. App. LEXIS 75 (2019).

    II.Decisions Under Prior Law.

    Original jurisdiction only when injunction refused by lower court. —

    This statute confers no original jurisdiction upon one of the judges (now justices) of the Supreme Court to award an injunction, except in the case where the application has been made, first to a judge of an inferior court and has been refused. Mayo v. Haines, 16 Va. (2 Munf) 423, 1811 Va. LEXIS 86 (1811); Gilliam v. Allen, 22 Va. (1 Rand.) 414, 1823 Va. LEXIS 22 (1823); Randolph v. Randolph, 27 Va. (6 Rand.) 194, 1828 Va. LEXIS 14 (1828); Fredenheim v. Rohr, 87 Va. 764 , 13 S.E. 193 , 1891 Va. LEXIS 127 (1891).

    Procedure. —

    Where a circuit court judge refuses to award an injunction, the remedy is by application, accompanied by the original papers and the order of refusal, to a judge (now justice) of the Supreme Court, who may review and reverse the action of the circuit court judge, and award the injunction. Wilder v. Kelley, 88 Va. 274 , 13 S.E. 483 (1891), overruled in Nichols v. Central Va. Power Co., 143 Va. 405 , 130 S.E. 764 (1925), on another point. See also, Fredenheim v. Rohr, 87 Va. 764 , 13 S.E. 193 , 1891 Va. LEXIS 127 (1891).

    Who may grant. —

    The judges (now justices) of the Supreme Court, or any one of them out of court, have power to award such injunctions, but this power is not possessed by the court itself. Mayo v. Haines, 16 Va. (2 Munf) 423, 1811 Va. LEXIS 86 (1811).

    When an injunction, refused by a judge of a circuit court, is presented to a judge (now justice) of the Supreme Court who also refuses it, the injunction may be awarded by another judge of that court. Jaynes v. Brock, 51 Va. (10 Gratt.) 211 (1853).

    Does not affect § 8.01-670 . —

    This section does not take away the right of appeal under § 8.01-670 in a case of equitable relief by injunction. French v. Chapin-Sacks Mfg. Co., 118 Va. 117 , 86 S.E. 842 , 1915 Va. LEXIS 129 (1915).

    § 8.01-627. To what clerk order for injunction directed.

    Every order, awarding an injunction made under § 8.01-620 or § 8.01-626 , shall be directed to the clerk of the court which has venue under § 8.01-261 and the proceedings thereupon shall be as if the order has been made by such court.

    History. Code 1950, § 8-619; 1977, c. 617.

    Cross references.

    As to jurisdiction of circuit courts generally, see § 17.1-513 .

    Michie’s Jurisprudence.

    For related discussion, see 10A M.J. Injunctions, §§ 71, 88.

    § 8.01-628. Equity of prayer for temporary injunction to be shown by affidavit or otherwise.

    No temporary injunction shall be awarded unless the court shall be satisfied of the plaintiff’s equity. An application for a temporary injunction may be supported or opposed by an affidavit or verified pleading.

    History. Code 1950, § 8-620; 1977, c. 617; 2015, c. 125.

    The 2015 amendments.

    The 2015 amendment by c. 125 added the second sentence.

    Michie’s Jurisprudence.

    For related discussion, see 10A M.J. Injunctions, §§ 82, 88, 90.

    CASE NOTES

    Federal standard compared. —

    There is no great difference between federal and Virginia standards for preliminary injunctions. Both draw upon the same equitable principles. Capital Tool & Mfg. Co. v. Maschinenfabrik Herkules, 837 F.2d 171, 1988 U.S. App. LEXIS 434 (4th Cir. 1988).

    Affidavit held sufficient. —

    The affidavit of the president of a corporation that the allegations of the bill of which he has knowledge are true, and that he believes that all other matters stated therein are true, is a sufficient compliance with this section. Southern Ry. v. Washington, A. & M.V. Ry., 102 Va. 483 , 46 S.E. 784 , 1904 Va. LEXIS 95 (1904) (decided under prior law).

    Error for perpetual injunction to be granted on affidavits. —

    It is sometimes necessary, from force of circumstances, for preliminary applications for injunctions to be heard upon affidavits only, but the general rule is that, where a case made on a bill for injunction is heard upon the merits, the hearing should be had on depositions regularly taken. It is error for the issues in an injunction suit to be heard and determined upon affidavits and a perpetual injunction granted thereon. Virginian Ry. v. Echols, 117 Va. 182 , 83 S.E. 1082 , 1915 Va. LEXIS 22 (1915) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Likelihood of success. —

    Doctor was not entitled to a temporary injunction under §§ 8.01-620 and 8.01-628 to enjoin his employer from enforcing a restrictive covenant in the parties’ employment agreement until the enforceability and applicability of said covenant was determined because the doctor could not establish the likelihood of success on the merits where, while he might ultimately prevail on the issue of the enforceability of the non-compete clause at a hearing on the permanent injunction, the issue was presently in equipoise as between the parties. Fame v. Allergy & Immunology, PLC, 91 Va. Cir. 66, 2015 Va. Cir. LEXIS 107 (Roanoke July 28, 2015).

    Winery was not entitled to a temporary injunction from enforcement of an executive order requiring face coverings to be worn by individuals in certain settings, because the Governor of Virginia and the Virginia State Health Commissioner validly enacted the order to limit the spread of COVID-19 and expressly waived the application of the criminal prohibition on the wearing of a mask to conceal one’s identity. The winery could not demonstrate a likely success as to the merits, irreparable harm, the balance of equities, and the public interest. Strother v. Northam, 105 Va. Cir. 233, 2020 Va. Cir. LEXIS 106 (Fauquier County June 29, 2020).

    Plaintiff was granted a preliminary injunction given that, in part, plaintiff was likely to prevail in its arbitration claim against defendant, as defendant’s two submissions to the zoning department were attempts to amend, modify, or interpret proffers and breached the parties’ proffer and cooperation agreement. Comstock Loudoun Station v. Au Loudoun Station, 2020 Va. Cir. LEXIS 672 (Loudoun County Sept. 18, 2020).

    Balance of equities. —

    For purposes of a request for a temporary injunction enjoining enforcement of executive and public health orders, a restaurant and its president failed to show that the balance of equities tipped in their favor given the urgent need to protect public health and safety from COVID-19. Dillon v. Northam, 105 Va. Cir. 402, 2020 Va. Cir. LEXIS 105 (Norfolk July 30, 2020), writ denied, No. CL20-3812, 2020 Va. Cir. LEXIS 109 (Virginia Beach July 30, 2020), dismissed, 108 Va. Cir. 367, 2021 Va. Cir. LEXIS 169 (Norfolk Aug. 13, 2021).

    Plaintiff was granted a preliminary injunction; it was irrelevant what losses defendant might suffer by an injunction that required it to do what the parties agreed to do in their agreement, and the added time of two months to defendant’s zoning application if paused did not represent an appreciable burden on defendant. Comstock Loudoun Station v. Au Loudoun Station, 2020 Va. Cir. LEXIS 672 (Loudoun County Sept. 18, 2020).

    Adequate remedy at law. —

    Citizens met the element of lacking an adequate remedy at law for a temporary injunction concerning an executive order because it was extremely difficult, if not impossible, to calculate the monetary damages that would ensue from a loss of first amendment rights; the ability to worship as one chose was sacrosanct in the United States of America, and any restriction on that right potentially caused irreparable harm. Young v. Northam, 107 Va. Cir. 281, 2021 Va. Cir. LEXIS 35 (Culpeper County Feb. 27, 2021).

    Public interest. —

    For purposes of a request for a temporary injunction enjoining enforcement of executive and public health orders, a restaurant and its president failed to show that the requested relief was in the public interest given that the orders were based on the substantial public health risk posed by the unmitigated spread of COVID-19. Dillon v. Northam, 105 Va. Cir. 402, 2020 Va. Cir. LEXIS 105 (Norfolk July 30, 2020), writ denied, No. CL20-3812, 2020 Va. Cir. LEXIS 109 (Virginia Beach July 30, 2020), dismissed, 108 Va. Cir. 367, 2021 Va. Cir. LEXIS 169 (Norfolk Aug. 13, 2021).

    Plaintiff was granted a preliminary injunction; the injunction was not excising public comment from the zoning process, but rather pausing defendant’s pursuit of the process. This would not stop defendant from continuing to develop its portion of property, but would require it to continue to do so pursuant to the parties’ agreement. The court did not find that plaintiff committed a first material breach of the parties’ agreement. Comstock Loudoun Station v. Au Loudoun Station, 2020 Va. Cir. LEXIS 672 (Loudoun County Sept. 18, 2020).

    Citizens satisfied the public interest element of the four-part test for a temporary injunction concerning an executive order because there was no evidence that any activity at specific churches, including, without limitation, physical distancing and gathering had or would result in an increase of the spread of Covid-19; the protection of constitutional rights is always in the public interest, and conversely, the protection of the public health and safety is also of great concern. Young v. Northam, 107 Va. Cir. 281, 2021 Va. Cir. LEXIS 35 (Culpeper County Feb. 27, 2021).

    Irreparable injury. —

    Restaurant and its president had not shown irreparable injury without a temporary injunction enjoining enforcement of executive and public health orders as they did no more that make a general averment that they would incur difficult-to-calculate damages because their expenses changed annually. Moreover, neither the risk of criminal prosecution if they failed to comply with a mask mandate, their inchoate apprehension related to the temporal uncertainty, nor the risk of business closings constituted an irreparable injury. Dillon v. Northam, 105 Va. Cir. 402, 2020 Va. Cir. LEXIS 105 (Norfolk July 30, 2020), writ denied, No. CL20-3812, 2020 Va. Cir. LEXIS 109 (Virginia Beach July 30, 2020), dismissed, 108 Va. Cir. 367, 2021 Va. Cir. LEXIS 169 (Norfolk Aug. 13, 2021).

    Plaintiff was granted a preliminary injunction given that, in part, plaintiff was likely to suffer irreparable harm in the absence of the injunction; maintaining the status quo during the parties’ arbitration process would prevent a scenario where plaintiff could be left with a paper victory while defendant effectively was required by the county to develop its parcel pursuant to the zoning amendments. Comstock Loudoun Station v. Au Loudoun Station, 2020 Va. Cir. LEXIS 672 (Loudoun County Sept. 18, 2020).

    Good cause not shown. —

    Where a historic association would not be harmed by an amended zoning ordinance and a preliminary injunction would defeat or diminish the property owners’ interests, the association did not show good cause for relief under § 8.01-628 . Danville Historic Neighborhood Ass'n v. City of Danville, 64 Va. Cir. 83, 2004 Va. Cir. LEXIS 172 (Danville Feb. 20, 2004).

    Former employer, moved for a preliminary injunction to enjoin defendant, former employee, from continuing his employment with his new employer, alleging, in part, that defendant’s employment was in contravention with his non-compete and non-disclosure agreement and that defendant’s new employer was a direct competitor in the same industry as plaintiff. However, in denying an injunction, the circuit court found no evidence before it, other than hearsay allegations, that defendant was harming plaintiff in any way, that personal service contracts were not assignable in Virginia, that the potential harm to defendant was great, and that plaintiff’s likelihood of success on the merits was tenuous; finally, public policy was clear, that in Virginia, enjoining the ability of one to earn a livelihood was to be done only in rare circumstances. SmartMail Servs. v. Ellis, 66 Va. Cir. 507, 2003 Va. Cir. LEXIS 371 (Chesterfield County Dec. 5, 2003).

    Good cause shown. —

    Injunctive relief was available pending a resolution of an appeal of the action of a zoning administrator in issuing three building permits where a liberal construction of the stay provision of subsection B of § 15.2-2311 was warranted and the administrator had not certified a situation of imminent peril. No action could be taken that proceeded from the issuance of such permits, including the continuation of the work commenced since the permits were issued. Wahrhaftig v. Artman, 73 Va. Cir. 37, 2007 Va. Cir. LEXIS 230 (Loudoun County Jan. 10, 2007).

    Political party was entitled to a temporary injunction to remove an independent political candidate from a ballot because the candidate did not collect the required number of signatures and the party had no adequate remedy at law, the party was likely to succeed on the merits, there was a likelihood of irreparable harm, the balance of equities tipped overwhelmingly in favor of the party, and injunctive relief was in the public interest. Democratic Party of Va. v. Piper, 102 Va. Cir. 478, 2018 Va. Cir. LEXIS 1556 (Richmond Sept. 6, 2018).

    When the executor of the decedent’s estate alleged that a relative of the decedent became co-owner and payable on death beneficiary of the decedent’s checking account at a bank through undue influence shortly before the decedent’s death the issuance of a temporary injunction was appropriate because the executor was likely to succeed on the merits, the executor would have suffered irreparable injury in the absence of injunctive relief, the balance of equities tipped in the executor’s favor, and injunctive relief was in the public interest. Fontaine v. Watson, 106 Va. Cir. 430, 2020 Va. Cir. LEXIS 496 (Henry County Dec. 23, 2020).

    Disqualification of attorney. —

    It was too drastic a remedy to disqualify neighbors’ counsel because it was reasonable to expect the conflicted lawyers would comply with the screening process; counsel’s contact with the other homeowners was relatively brief, the nature of the litigation was not such that confidences were at the heart of the dispute, and the homeowners who communicated with the neighbors’ counsel did so expecting their communication to be confidential and limited to the group. Grenier v. Paynter, 103 Va. Cir. 94, 2019 Va. Cir. LEXIS 452 (Fairfax County Sept. 13, 2019).

    Court’s authority to supervise the conduct of counsel in cases is like that of an injunction that requires a weighing of countervailing interests. Grenier v. Paynter, 103 Va. Cir. 94, 2019 Va. Cir. LEXIS 452 (Fairfax County Sept. 13, 2019).

    Temporary injunction denied. —

    Citizens were not entitled to injunctive relief under the Virginia Statute of Religious Freedom because an executive order did not prohibit assembly, the taking of communion, singing, praying, nor restrict capacity in churches; there were no capacity limits in the executive order and non-religious gatherings had stricter requirements regardless of occurring indoors or outdoors. Young v. Northam, 107 Va. Cir. 281, 2021 Va. Cir. LEXIS 35 (Culpeper County Feb. 27, 2021).

    Former employer was not entitled to a preliminary injunction enjoining a former employee from being employed by her new employer in a manner that violated the non-compete agreement because, while the employer was likely to succeed on the merits because the noncompete agreement was enforceable on Its face, the court was not convinced that the employer had sufficiently proved that it had suffered irreparable harm or that the balance of equities tipped in its favor. Zachary Piper LLC v. Popelka.

    § 8.01-629. Notice required.

    Any court may require that reasonable notice be given to the adverse party, or to his attorney of record, of the time and place of moving for it, before the injunction is granted, if, in the opinion of the court, it be proper that such notice be given.

    History. Code 1950, § 8-621; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-621 has been changed by (1) deleting reference to the attorney-in-fact of an adverse party, (2) replacing “attorney-at-law” with the language “attorney of record,” and (3) deleting the last sentence as surplusage.

    Law Review.

    For article, “Making the Case to Avoid Entering the eBay Marketplace: A Recommended Analytical Framework for Evaluating Requests for Permanent Injunctions in Virginia,” see 32 Regent U.L. Rev. 1 (2019).

    Michie’s Jurisprudence.

    For related discussion, see 10A M.J. Injunctions, § 89.

    CASE NOTES

    Discretion of court as to notice. —

    It is obvious from this section that the requirement for notice to defendant before the award of a preliminary injunction rests largely in the discretion of the trial court, and this has always been the approved practice. The cases are rare indeed which justify the awarding of a preliminary injunction without notice to those affected thereby. The ex parte statement of the bill and affidavits usually presented for the complainant in such cases, should not be accepted as justifying the issuance of a preliminary injunction unless necessary to prevent threatened and irreparable damage. Frequently the application is so delayed by the complainant that there is little time for notice, but this delay should impel the judge to whom application is made to scrutinize the alleged reasons therefor with greater care, so as to avoid abuse of the power. Cohen v. Rosen, 157 Va. 71 , 160 S.E. 36 , 1931 Va. LEXIS 303 (1931) (decided under prior law).

    Notice should usually be given. —

    Notice of an application for an injunction should always be given to the adverse party except in case of most obvious necessity for prompt action. Bristow v. Catlin, 91 Va. 18 , 20 S.E. 946 (1895) (decided under prior law).

    § 8.01-630. Forthcoming bond in connection with injunction against removal of property.

    A court awarding a temporary injunction to restrain the removal of property out of this Commonwealth may require bond with security to be given before such officer and in such penalty as the court may direct, with condition to have the property forthcoming to abide the future order or decree of the court and, unless such bond be given, may order the officer serving its process to take possession of the property and keep it until the bond be given or until further order of the court.

    History. Code 1950, § 8-622; 1977, c. 617; 2012, cc. 8, 77.

    Cross references.

    For general provisions as to forthcoming bonds, see §§ 8.01-526 through 8.01-532 .

    As to bonds taken by courts and officers, generally, see §§ 49-12 through 49-21 .

    The 2012 amendments.

    The 2012 amendments by cc. 8 and 77 are identical, and substituted “a temporary injunction” for “an injunction” near the beginning of the section.

    Law Review.

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    Michie’s Jurisprudence.

    For related discussion, see 10A M.J. Injunctions, § 93.

    CASE NOTES

    Power to require in discretion of court. —

    The power to require bond is to be exercised, not as a matter of course, but of sound discretion, according to circumstances. Holliday v. Coleman, 16 Va. (2 Munf) 162, 1811 Va. LEXIS 23 (1811) (decided under prior law).

    § 8.01-631. Injunction bond.

    1. Except in the case of a fiduciary or any other person from whom in the opinion of the court awarding an injunction it may be improper or unnecessary to require bond, no temporary injunction shall take effect until the movant gives bond with security in an amount that the trial court considers proper to pay the costs and damages sustained by any party found to have been incorrectly enjoined, with such conditions as the trial court may prescribe.
    2. When an appeal is taken from an interlocutory order or final judgment granting, dissolving, or denying a permanent injunction, and while the appeal is pending, the trial court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
    3. The bond shall be given before the clerk of the court in which the injunction is awarded.
    4. An order by the trial court under subsection A or B may be modified or vacated by the appellate court having jurisdiction over the appeal in accordance with § 8.01-676.1 .
    5. For any temporary or permanent injunction sought by, or awarded to, the Commonwealth, or any of its officers or agencies, no bond shall be required.

    History. Code 1950, § 8-623; 1976, c. 238; 1977, c. 617; 2012, cc. 8, 77.

    REVISERS’ NOTE

    The last two sentences of former § 8-623 have been deleted since they have no modern utility. Minor language changes have been made.

    Cross references.

    For provisions as to bonds taken by courts and officers, in general, see §§ 49-12 through 49-21 .

    The 2012 amendments.

    The 2012 amendments by cc. 8 and 77 are identical, and rewrote the section.

    Law Review.

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    For essay, “Foreclosure of a Deed of Trust in Virginia,” see 51 U. Rich. L. Rev. 147 (2016).

    Michie’s Jurisprudence.

    For related discussion, see 5C M.J. Damages, § 44.

    CASE NOTES

    Editor’s note.

    Injunction granted without board only in exceptional cases. —

    It is a very exceptional case in which a court can, without abusing its discretion, grant an injunction to a person, other than a personal representative or some other person suing in a similar representative capacity, without requiring bond. Deeds v. Gilmer, 162 Va. 157 , 174 S.E. 37 , 1934 Va. LEXIS 244 (1934).

    Executors and administrators usually need not give security. —

    Executors and administrators having given security for their administration are not generally required to give security upon obtaining injunctions. Wilson v. Wilson, 11 Va. (1 Hen. & M.) 16 (1806); Shearman v. Christian, 22 Va. (1 Rand.) 393, 1823 Va. LEXIS 17 (1823); Lomax v. Picot, 23 Va. (2 Rand.) 247, 1824 Va. LEXIS 6 (1824).

    Form and conditions of bonds. —

    An injunction order requiring an injunction bond to be given with condition “according to law” is sufficient authority to the clerk to make the condition “to answer all costs and damages that may be incurred by reason of the suing out the injunction in case the same shall be dissolved,” and is a substantial compliance with the provisions of this section directing the court to prescribe the condition of the bond. It is the usual, if not almost the universal, practice of the courts of original jurisdiction to prescribe the conditions of such bonds in this manner when the circumstances are not such as to render special conditions necessary. Columbia Amusement Co. v. Pine Beach Inv. Corp., 109 Va. 325 , 63 S.E. 1002 , 1909 Va. LEXIS 38 (1909).

    Although the condition of an injunction bond is not so extensive, as the statute requires, yet if it contains a material part of the conditions required, the bond is not void, but binds the obligors to the extent of such condition or conditions. When the bond contains some conditions or provisions not required by the statute, and some of those which are required, it is valid and binding to the extent of the latter. Fox v. Mountjoy, 20 Va. (6 Munf) 36, 1817 Va. LEXIS 58 (1817); White v. Clay, 34 Va. (7 Leigh) 68, 1836 Va. LEXIS 13 (1836); Gillespie v. Thompson, 46 Va. (5 Gratt.) 132, 1848 Va. LEXIS 31 (1848); Pratt v. Wright, 54 Va. (13 Gratt.) 175, 1856 Va. LEXIS 7 (1856); Gibson v. Beckham, 57 Va. (16 Gratt.) 321, 1862 Va. LEXIS 4 (1862).

    Wife’s petition for review of a temporary injunction granted to a husband was dismissed because the husband had not yet posted a required bond, nor had the trial court determined the appropriate bond amount, so the injunction was not yet effective, and the wife was not yet an aggrieved party. Guan v. Ran, 70 Va. App. 153, 825 S.E.2d 306, 2019 Va. App. LEXIS 75 (2019).

    Estoppel to deny effective bond. —

    Where an injunction bond has been signed, sealed and acknowledged by the obligors in the presence of the court and has been accepted and acted on as their bond, the obligors are estopped to deny that the penalty of the bond conforms to the direction of the judge who awarded the injunction. Harman v. Howe, 68 Va. (27 Gratt.) 676, 1876 Va. LEXIS 59 (1876) (see Wray v. Davenport, 79 Va. 19 (1884)).

    It is error to order an increase of an injunction bond where the claim of the adverse party is fully protected by collateral security. Ruffin v. Commercial Bank, 90 Va. 708 , 19 S.E. 790 , 1894 Va. LEXIS 50 (1894).

    If an injunction be dissolved, the debt should be collected by suit on the injunction bond. Fauber v. Gentry, 89 Va. 312 , 15 S.E. 899 , 1892 Va. LEXIS 101 (1892).

    Extent of liability. —

    The liability of the obligors in an injunction bond is determined by the bond alone. Damages recoverable in an action for breach thereof must be such as are the natural and proximate result of the issuance of the writ. Virginia Beach Dev. Co. v. Commonwealth, 115 Va. 280 , 78 S.E. 617 , 1913 Va. LEXIS 32 (1913).

    § 8.01-631.1. Environmental injunction; financial capacity.

    A court awarding a temporary or permanent injunction to the Commonwealth, or any of its officers or agencies, requiring any party to (i) abate, control, prevent, remove, or contain any substantial or imminent threat to public health or the environment, or (ii) develop a closure plan to address any substantial or imminent threat to public health or the environment that may result when a business ceases operation, shall require the defendant to demonstrate its financial capability to comply with the injunction. Financial capability may be demonstrated, at the court’s discretion, by the establishment of an escrow account, the creation of a trust fund, the submission of a bond, or such other instruments as the court may deem appropriate.

    For the purposes of this section “ceases operation” means to cease conducting the normal operation of a business in the Commonwealth where it would be reasonable to expect that such operation will not be resumed by the owner. The term shall not include the ordinary sale or transfer of a business.

    History. 1991, c. 236.

    Michie’s Jurisprudence.

    For related discussion, see 10A M.J. Injunctions, § 70.

    § 8.01-632. How surety in forthcoming bond may obtain additional security.

    Any surety in the forthcoming bond described in §§ 8.01-630 and 8.01-631 , or his personal representative, may move for and obtain an order for other or additional security, in the same manner as the defendant in an injunction.

    History. Code 1950, § 8-624; 1977, c. 617.

    § 8.01-633. Damages on dissolution.

    When an injunction to stay proceedings on a judgment or decree for money is dissolved wholly or in part there shall be paid to the party having such judgment or decree damages at the rate of ten per centum per annum from the time the injunction took effect until the dissolution, on such sum as appears to be due, including the costs; but the court wherein the injunction is may direct that no such damages be paid, or that there be paid only such portion thereof as it may deem just. In a case wherein a forthcoming bond was forfeited, and no execution was had thereon before the injunction took effect, a court awarding such execution shall include in its judgment or decree damages as aforesaid. In other cases damages may be included in the execution on the judgment or decree to which the injunction was awarded.

    History. Code 1950, § 8-625; 1977, c. 617.

    REVISERS’ NOTE

    The last sentence of former § 8-625 has been deleted as unnecessary.

    Cross references.

    As to recovery of damages sustained for property withheld during appeal, see § 8.01-123 .

    Michie’s Jurisprudence.

    For related discussion, see 10A M.J. Injunctions, § 141.

    CASE NOTES

    Editor’s note.

    The cases cited below were decided under corresponding provisions of former law. The term “the statute,” as used below, refers to former provisions.

    The condition of an injunction bond is broken by a dissolution of the injunction in part, as well as by a total dissolution. An action lies on the bond whether the injunction be partly or wholly dissolved. White v. Clay, 34 Va. (7 Leigh) 68, 1836 Va. LEXIS 13 (1836).

    Who is liable for damages. —

    If a person, not a party to a judgment, enjoins it, and the injunction is dissolved, he is liable to pay the ten percent damages prescribed by the statute. Claytor v. Anthony, 56 Va. (15 Gratt.) 518, 1860 Va. LEXIS 17 (1860).

    Computation of damages. —

    Upon the dissolution of an injunction on a judgment, the damages for retarding execution by the injunction should be computed on the aggregate of principal, interest and costs, appearing due on the judgment at the date of the injunction. And the damages should be ascertained, and the precept to levy them inserted, in the body of the execution. Washington v. Parks, 33 Va. (6 Leigh) 581, 1835 Va. LEXIS 55 (1835).

    The damages are to be computed not upon the amount of judgment at the time it was first granted on the original bill but on the amount of the judgment at the time it was granted on the bill of review. Claytor v. Anthony, 56 Va. (15 Gratt.) 518, 1860 Va. LEXIS 17 (1860).

    An injunction was dissolved, and on appeal the decree was affirmed. Ten percent damages was to be computed from the time when the injunction was granted to the date of the dissolution thereof in the court below, but not for the time it was pending in the appellate court. Jeter v. Langhorne, 46 Va. (5 Gratt.) 193, 1848 Va. LEXIS 41 (1848).

    Statutory rate of interest implied unless remitted. —

    Where an injunction bond provides in terms for the payment of such damages on dissolution as may be awarded by the court, the ten percent damages given by statute are to be deemed awarded unless expressly remitted by the court. Claytor v. Anthony, 56 Va. (15 Gratt.) 518, 1860 Va. LEXIS 17 (1860) (see also Fox v. Mountjoy, 20 Va. (6 Munf.) 36 (1817)).

    Damages part of judgment lien. —

    The damages on the dissolution of an injunction to a judgment become, as to the party obtaining it, a part of the judgment, and are embraced in the lien of the judgment upon the equity of redemption. Michaux v. Brown, 51 Va. (10 Gratt.) 612, 1854 Va. LEXIS 68 (1854).

    Damages may be recovered under bond after principal paid. —

    If the judgment, principal, interest, costs and damages on an injunction amount to more than the penalty of the injunction bond, and the plaintiff in the judgment sued out execution on the judgment and made the money, principal, interest and costs, he may also recover the damages by suit upon the bond. Claytor v. Anthony, 56 Va. (15 Gratt.) 518, 1860 Va. LEXIS 17 (1860).

    Suit on injunction bond. —

    Where an administrator recovered judgment for a debt due the estate, but was enjoined by the judgment debtor from collecting the same, if the injunction should be dissolved, and the administrator permitted to collect the debt, it should be done by a suit on the injunction bond. Fauber v. Gentry, 89 Va. 312 , 15 S.E. 899 , 1892 Va. LEXIS 101 (1892).

    § 8.01-634. Dismissal of injunction bill.

    When an injunction is wholly dissolved the bill shall stand dismissed with costs, unless sufficient cause be shown against such dismissal.

    History. Code 1950, § 8-626; 1977, c. 617.

    REVISERS’ NOTE

    The following requirements in former § 8-626 have been deleted: (1) that a showing not to dismiss the injunction be carried over to the next term and (2) that the clerk shall enter the dismissal on the last day of term. These requirements are inconsistent with modern practice.

    Cross references.

    As to costs and damages, see §§ 8.01-631 , 8.01-633 .

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Costs, § 7.

    CASE NOTES

    Editor’s note.

    After an injunction has been wholly dissolved, if the cause be set for hearing on motion of the defendant in equity, he cannot take advantage of the circumstance that the bill should have been dismissed under this section. Franklin v. Wilkinson, 17 Va. (3 Munf) 112, 1812 Va. LEXIS 21 (1812).

    This section applies only to a pure bill of injunction, and not to a case where the bill prays for other relief besides the injunction. Pending the litigation for the subjection of the land to sale for the purchase money, it is not error to appoint a receiver to rent the land, and, if necessary, to collect the bond given by the vendee for the rent, as was done in the case at bar. Adkins v. Edwards, 83 Va. 300 , 2 S.E. 435 , 1887 Va. LEXIS 68 (1887).

    This section does not apply to a bill which is not merely a bill of injunction, but has the further object in view of obtaining a decree for a conveyance. Hough v. Shreeve, 18 Va. (4 Munf) 490, 1815 Va. LEXIS 44 (1815); Singleton v. Lewis, 20 Va. (6 Munf) 397, 1819 Va. LEXIS 36 (1819) (see also Pulliam v. Winston, 32 Va. (5 Leigh) 324 (1834)).

    Chapter 25. Extraordinary Writs.

    Article 1. Writ of Quo Warranto.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Quo Warranto, §§ 1, 3, 6, 7, 8, 9, 10, 11.

    § 8.01-635. Common-law writ of quo warranto and information in the nature of writ of quo warranto abolished; statutory writ of quo warranto established.

    The common-law writ of quo warranto and information in the nature of writ of quo warranto is hereby abolished and superseded by the statutory writ of quo warranto.

    History. 1977, c. 617.

    REVISERS’ NOTE

    Since neither proceedings by the common-law writ of quo warranto nor information in the nature of a writ of quo warranto seems to have been understood and have fallen into disuse, § 8.01-635 abolishes them. Instead, a single procedure, a statutory writ of quo warranto, is created and provides the same relief as possible under the former writs.

    Law Review.

    For an article, ‘Final and Interlocutory Appeals in Virginia,‘ see 8 Geo. Mason L. Rev. 337 (1999).

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Quo Warranto, § 1.

    CASE NOTES

    The object of this article is to simplify the procedure in quo warranto cases, and to define the cases in which it may be used. Watkins v. Venable, 99 Va. 440 , 39 S.E. 147 , 1901 Va. LEXIS 63 (1901) (decided under prior law).

    § 8.01-636. In what cases writ issued.

    A writ of quo warranto may be issued and prosecuted in the name of the Commonwealth in any of the following cases:

    1. Against a domestic corporation, other than a municipal corporation, for the misuse or nonuse of its corporate privileges and franchises, or for the exercise of a privilege or franchise not conferred upon it by law, or when a charter of incorporation has been obtained by it for a fraudulent purpose, or for a purpose not authorized by law;
    2. Against a person for the misuse or nonuse of any privilege conferred upon him by law;
    3. Against any person or persons acting as a corporation, other than a municipal corporation, without authority of law; and
    4. Against any person who intrudes into or usurps any public office. But no writ shall be issued or prosecuted against any person now in office for any cause which would have been available in support of a proceeding to contest his election.

      Provided that nothing herein shall be construed to give jurisdiction to any court to judge the election, qualifications, or returns of the members of either house of the General Assembly.

    2a. Against a person engaged in the practice of any profession without being duly authorized or licensed to do so;

    History. Code 1950, § 8-857; 1977, c. 617; 1980, c. 705.

    REVISERS’ NOTE

    Section 8.01-636 adds to former § 8-857 the proviso preserving to the General Assembly the authority to judge the elections, qualifications, and/or returns of its members. See Constitution of Virginia, 1971, Article IV, § 7.

    Law Review.

    For article, “Virginia: The Unauthorized Practice of Law Experience,” see 19 U. Rich. L. Rev. 499 (1985).

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Quo Warranto, § 3.

    CASE NOTES

    Editor’s note.

    This section is broad enough to embrace all corporations other than municipal corporations. South & W. Ry. v. Commonwealth, 104 Va. 314 , 51 S.E. 824 , 1905 Va. LEXIS 101 (1905).

    Quo warranto lies to try title to a public office. Sinclair v. Young, 100 Va. 284 , 40 S.E. 907 (1902), cited in City of Roanoke v. Elliott, 123 Va. 393 , 96 S.E. 819 (1918) (see Dotson v. Commonwealth, 192 Va. 565 , 66 S.E.2d 490 (1951)).

    But such remedy is not exclusive, and is not the usual remedy resorted to by a successor in office to try the title of his predecessor and to recover the property belonging to the office. Sinclair v. Young, 100 Va. 284 , 40 S.E. 907 , 1902 Va. LEXIS 26 (1902).

    And mandamus also lies. —

    This article does not abolish by implication the established procedure of trying title to office by mandamus. Sinclair v. Young, 100 Va. 284 , 40 S.E. 907 , 1902 Va. LEXIS 26 (1902).

    Mandamus is an appropriate remedy to compel one not entitled to public office to refrain from exercising its functions, and to deliver the rightful claimant property belonging to the office. Neither detinue nor quo warranto is an adequate remedy, even if detinue would lie in such a case to recover the property. Sinclair v. Young, 100 Va. 284 , 40 S.E. 907 , 1902 Va. LEXIS 26 (1902).

    Common law as to trying title to public office compared. —

    Chapter 145 of the Code of 1887, similar to this chapter, did not narrow the writ of quo warranto, or make it less comprehensive in trying the title to an office than it was at common law, where title to an office could be tested if the incumbent were not in possession de jure, although he might be a full de facto officer. The provisions of that chapter were not restricted to cases in which the incumbent was a mere intruder or usurper without color or pretense of title. Watkins v. Venable, 99 Va. 440 , 39 S.E. 147 , 1901 Va. LEXIS 63 (1901) (see Dotson v. Commonwealth, 192 Va. 565 , 66 S.E.2d 490 (1951)).

    Where the term of an officer expires pending a quo warranto proceeding to test his right to hold it, the proceeding will be dismissed. Commonwealth v. Gleason, 111 Va. 383 , 69 S.E. 448 , 1910 Va. LEXIS 56 (1910).

    CIRCUIT COURT OPINIONS

    Writ denied. —

    Treasurer’s application to issue a writ of quo warranto was denied as § 8.01-636 excluded municipal corporations, such as the city council. Pritchett v. City of Petersburg City Council, 103 Va. Cir. 270, 2019 Va. Cir. LEXIS 623 (Petersburg Oct. 22, 2019).

    § 8.01-637. By whom filed; when leave granted and writ issued.

    1. The Attorney General or attorney for the Commonwealth of any county or city of which the circuit court has jurisdiction of the proceeding, at his own instance or at the relation of any interested person, or any interested person, may apply to such court by petition verified by oath for a writ of quo warranto. In case of an application under § 8.01-636 2a the term “any interested person” shall include any attorney licensed to practice law in this Commonwealth and qualified to practice before the Supreme Court of Virginia, or the circuit court in which the petition is filed.
    2. If, in the opinion of the court, the matters stated in the petition are sufficient in law to authorize the issuance of such writ, a writ shall issue thereon, commanding the sheriff to summon the defendant to appear at a date set forth in the writ.
    3. If the petition is filed on the relation of any person or by any person at his own instance, before the clerk shall issue the writ the court shall require the relator or person to give bond with sufficient surety, to be approved by the clerk, to indemnify the Commonwealth against all costs and expenses of the proceedings, in case the same shall not be recovered from and paid by the defendant.

    History. Code 1950, §§ 8-858, 8-859, 8-860; 1977, c. 617; 1980, c. 705.

    REVISERS’ NOTE

    Section 8.01-637 is a consolidation of former §§ 8-858 to 8-860. Subsection A adopts the substance of former §§ 8-859 and 8-860 regarding who may file the writ. Subsection B also adopts the substance of these two sections granting to the court the discretion to decide the sufficiency/insufficiency of the matters stated in the petition. However, instead of making the summons returnable to the next term of court, subsection B requires the defendant to appear at a date set forth in the writ. Subsection C has combined and rewritten the last sentences of former §§ 8-859 and 8-860; however, no change in substance is intended.

    Cross references.

    As to jurisdiction of circuit courts generally, see § 17.1-513 .

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Quo Warranto, §§ 6-8, 9.

    CASE NOTES

    Editor’s note.

    This section is substantially the same as the old practice developed under common-law rules. Hammer v. Commonwealth, 169 Va. 355 , 193 S.E. 496 , 1937 Va. LEXIS 182 (1937).

    Private persons may institute proceedings. —

    Under this section a quo warranto proceeding may be instituted in the name of the Commonwealth against a corporation, for a nonuse or misuse of its corporate franchise, not only by the attorney for the Commonwealth for the proper county, but also by private persons under certain conditions. South & W. Ry. v. Commonwealth, 104 Va. 314 , 51 S.E. 824 , 1905 Va. LEXIS 101 (1905).

    A “person interested”. —

    A court should be satisfied that the person seeking its permission to file the information is a “person interested” before such permission is granted. Hammer v. Commonwealth, 169 Va. 355 , 193 S.E. 496 , 1937 Va. LEXIS 182 (1937).

    A relator, having shown himself to be a bona fide claimant to a public office and having made out a prima facie case, is a “person interested” within this section. Hammer v. Commonwealth, 169 Va. 355 , 193 S.E. 496 , 1937 Va. LEXIS 182 (1937).

    Need not request Attorney General or Commonwealth’s attorney to apply for writ. —

    This section does not require “any person interested” to request the Attorney General or the Commonwealth’s attorney to apply for the writ as a condition precedent for such a person to institute proceedings under this section. Hammer v. Commonwealth, 169 Va. 355 , 193 S.E. 496 , 1937 Va. LEXIS 182 (1937).

    An applicant is not entitled to the writ as a matter of absolute right, but whether it shall be awarded or not is within the exercise of judicial discretion. Watkins v. Venable, 99 Va. 440 , 39 S.E. 147 (1901), cited in Albemarle Oil & Gas Co. v. Morris, 138 Va. 1 , 121 S.E. 60 (1924).

    However fundamental may be the irregularities in the organization of a municipal government, the writ of quo warranto does not issue as a matter of course. The court, in determining the question, will consider the public interest involved, and the extent of the injury complained of, and, where little practical benefit would result to the relator, and injury and inconvenience would result to the public, will deny the writ. Albemarle Oil & Gas Co. v. Morris, 138 Va. 1 , 121 S.E. 60 , 1924 Va. LEXIS 5 (1924).

    The first notice to the defendant of a quo warranto proceeding is the writ itself. Watkins v. Venable, 99 Va. 440 , 39 S.E. 147 , 1901 Va. LEXIS 63 (1901).

    Defendant as party. —

    The defendant does not become a party to a quo warranto proceeding until the writ is awarded. If a circuit court refuses to award the writ the defendant is no party to the proceeding in that court, and cannot be made a party on a writ of error from the Supreme Court, and process against him in the appellate court, if awarded, will be quashed. Watkins v. Venable, 99 Va. 440 , 39 S.E. 147 , 1901 Va. LEXIS 63 (1901).

    The Supreme Court has no original jurisdiction in cases of quo warranto, nor has any judge (now justice) thereof jurisdiction to issue the writ and send the case to the circuit court to be proceeded with, as in cases of injunction. Watkins v. Venable, 99 Va. 440 , 39 S.E. 147 , 1901 Va. LEXIS 63 (1901).

    A writ of error lies from the Supreme Court to a judgment of a circuit court refusing to entertain a petition for writ of quo warranto tendered by a bona fide claimant of an office to test the title thereto. Watkins v. Venable, 99 Va. 440 , 39 S.E. 147 , 1901 Va. LEXIS 63 (1901).

    In a proceeding to determine the validity of a city government, the interests of the relator were slight and the interest of the public was great. The granting and successful prosecution of the writ would have resulted in the suspension of all municipal government. It was held that the lower court did not err in vacating the writ and dismissing the petition. Albemarle Oil & Gas Co. v. Morris, 138 Va. 1 , 121 S.E. 60 , 1924 Va. LEXIS 5 (1924).

    § 8.01-638. Repealed by Acts 1987, c. 567.

    Cross references.

    As to venue in proceedings by writ of quo warranto, see subdivision 14 of § 8.01-261 .

    § 8.01-639. How summons directed and served.

    The writ and a copy of the petition attached thereto may be directed to the sheriff of any county or city and shall be served as in other actions.

    History. Code 1950, § 8-861; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-639 alters former § 8-861 by requiring that a copy of the petition be attached to the writ.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Quo Warranto, § 9.

    § 8.01-640. Judgment when defendant fails to appear.

    If the defendant fails to appear in accordance with the writ, the court may hear proof of the allegations of the petition, and if the allegations are sustained, shall give judgment accordingly.

    History. Code 1950, § 8-862; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Quo Warranto, § 10.

    § 8.01-641. Reopening same when made on service by publication.

    But if service is made by publication, the defendant against whom the judgment is rendered may file a motion within thirty days from the rendition of judgment to have such judgment set aside, upon giving bond with good security as prescribed by the court, with condition to pay all such costs as shall be awarded in the cause against the defendant. The defendant may then make such defense to the petition as he might have made, and in the same manner, before the judgment was rendered.

    History. Code 1950, § 8-863; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-641 alters former § 8-863 by replacing the period provided by “at the next term of the court” with the uniform period of “thirty days from the rendition of judgment.”

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Quo Warranto, § 10.

    § 8.01-642. Pleading when defendant appears.

    The defendant against whom the writ was issued may plead, demur or answer the petition within the time set forth in the writ for his appearance.

    History. Code 1950, § 8-864; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-642 condenses and simplifies former § 8-864. The reference to pleading “not guilty” and to allegations not denied by the answer has been eliminated as no longer necessary in view of Rule 3:5 [see now Rule 3:8]. Also, the reference to the next term of court is deleted and replaced by the time provision of § 8.01-637 B; the references to the abolished writ and information are eliminated.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Quo Warranto, § 10.

    § 8.01-643. Trial; verdict; judgment; costs; attorney’s fee.

    Unless the defendant shall ask for a trial by jury, the court shall hear the same. If the case is tried by jury and the defendant is found guilty as to only a part of the charges, the verdict shall be guilty as to such part and shall particularly specify the same. As to the residue of such charges, the verdict shall be not guilty.

    If the defendant appears and is found guilty the court shall give such judgment as is appropriate and authorized by law and for costs incurred in the prosecution of the information, including a reasonable attorney’s fee to be prescribed by the court.

    History. Code 1950, § 8-865; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-643 rewrites former § 8-865 and alters case law by requiring a trial by jury of proceedings by writ of quo warranto only when the defendant so requests. See Dotson v. Commonwealth, 192 Va. 565 , 66 S.E.2d 490 (1951). Also, the specific monetary limits on recovery of attorney’s fees is replaced with a reasonableness standard.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Quo Warranto, §§ 10, 11.

    Article 2. Mandamus and Prohibition.

    § 8.01-644. Application for mandamus or prohibition.

    Except as provided in § 2.2-3713, application for a writ of mandamus or a writ of prohibition shall be on petition verified by oath, after the party against whom the writ is prayed has been served with a copy of the petition and notice of the intended application a reasonable time before such application is made.

    History. Code 1950, § 8-704; 1977, c. 617; 2009, c. 634.

    Cross references.

    As to original jurisdiction of the Supreme Court over writs of mandamus and prohibition, see Va. Const., Art. VI, § 1.

    As to jurisdiction over writs of mandamus and prohibition generally, see §§ 17.1-309 , 17.1-513 .

    The 2009 amendments.

    The 2009 amendment by c. 634 substituted “Except as provided in § 2.2-3713, application” for “Application.”

    Law Review.

    For note on use of mandamus in judicial proceedings, see 40 Va. L. Rev. 817 (1954).

    For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

    For comment, “Prohibition: The Elusive and Misunderstood Writ,” see 16 U. Rich. L. Rev. 693 (1982).

    Michie’s Jurisprudence.

    For related discussion, see 12B M.J. Mandamus, §§ 1, 27, 28.

    CASE NOTES

    Analysis

  • B. Mandamus.
  • C. Prohibition.

    • B.Mandamus.

    Compelling performance of ministerial act. —

    Mandamus is an extraordinary remedy employed to compel a public official to perform a purely ministerial duty imposed upon him by law. A ministerial act is one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise of his own judgment upon the propriety of the act being done. Richlands Medical Ass'n v. Commonwealth ex rel. State Health Comm'r, 230 Va. 384 , 337 S.E.2d 737, 1985 Va. LEXIS 291 (1985).

    Public official’s discretion not subject to review by mandamus. —

    When a public official is vested with discretion or judgment, his actions are not subject to review by mandamus. Richlands Medical Ass'n v. Commonwealth ex rel. State Health Comm'r, 230 Va. 384 , 337 S.E.2d 737, 1985 Va. LEXIS 291 (1985).

    And trial court exceeds function in so doing. —

    A trial court exceeds its function and usurps the authority granted to a public official when it undertakes in a mandamus proceeding to review the discretion of the official. Richlands Medical Ass'n v. Commonwealth ex rel. State Health Comm'r, 230 Va. 384 , 337 S.E.2d 737, 1985 Va. LEXIS 291 (1985).

    Function of a trial court in a mandamus proceeding is to command and execute, and not to inquire and adjudicate. Richlands Medical Ass'n v. Commonwealth ex rel. State Health Comm'r, 230 Va. 384 , 337 S.E.2d 737, 1985 Va. LEXIS 291 (1985).

    Writ does not lie to prohibit erroneous adjudication. —

    Circuit court erred by issuing a writ of prohibition against a general district court judge in connection with action taken by the judge in the course of adjudicating civil cases, because a writ of prohibition does not lie to prevent a lower court from adjudicating erroneously. Elliott v. Greater Atl. Mgt. Co., 236 Va. 334 , 374 S.E.2d 27, 5 Va. Law Rep. 942, 1988 Va. LEXIS 162 (1988).

    Mandamus is applied prospectively only; it will not be granted to undo an act already done. Richlands Medical Ass'n v. Commonwealth ex rel. State Health Comm'r, 230 Va. 384 , 337 S.E.2d 737, 1985 Va. LEXIS 291 (1985).

    Mandamus not a substitute for appeal. —

    The extraordinary remedy of mandamus may not be used as a substitute for an appeal. Mandamus lies to compel, not to revise or correct action, however erroneous it may have been and is not like a writ of error or appeal, which is a remedy for erroneous decisions. Richlands Medical Ass'n v. Commonwealth ex rel. State Health Comm'r, 230 Va. 384 , 337 S.E.2d 737, 1985 Va. LEXIS 291 (1985).

    Where the controversy was over the legal correctness of judge’s supervision of attorney’s fees collected from tenants, issuance of a writ of prohibition was error. Elliott v. Greater Atl. Mgt. Co., 236 Va. 334 , 374 S.E.2d 27, 5 Va. Law Rep. 942, 1988 Va. LEXIS 162 (1988).

    Untimely application. —

    Because an owner’s cause of action for injury to property accrued upon a town’s enactment of an ordinance in 1985, the circuit court properly determined that the statute of limitations in subsection B of § 8.01-243 had run; therefore, based on clear judicial precedent, the owner’s petition for a writ of mandamus was untimely. C. Givens Bros., L.L.C. v. Town of Blacksburg, 273 Va. 281 , 641 S.E.2d 113, 2007 Va. LEXIS 41 (2007).

    Notice requirement. —

    Petitioner’s failure to comply with the notice requirement in § 8.01-644 did not render his mandamus petition improperly filed for purposes of 28 U.S.C.S. § 2244(d)(2) because the notice requirement constituted a “condition to obtaining relief” rather than a “condition to filing.” Harris v. Va. Dep't of Corr., 282 Fed. Appx. 239, 2008 U.S. App. LEXIS 13510 (4th Cir. 2008), dismissed, 327 Fed. Appx. 409, 2009 U.S. App. LEXIS 13708 (4th Cir. 2009).

    C.Prohibition.

    Function of the Court of Appeals in considering the application for a writ of prohibition is not to pass judgment upon individual evidentiary rulings as it would do on direct appeal. In re Fox, No. 0116-85 (Ct. of Appeals Mar. 19, 1985).

    Discretion of court. —

    The issuance of the writ of prohibition is a matter that is within the sound discretion of the Court of Appeals, to be granted or denied considering the particular circumstances of this case. In re Fox, No. 0116-85 (Ct. of Appeals Mar. 19, 1985).

    Writ of prohibition is to be issued with great caution and forbearance. In re Fox, No. 0116-85 (Ct. of Appeals Mar. 19, 1985).

    Writ of prohibition may not be used as a substitute for appeal. It is not a vehicle for simply correcting errors of the trial court. In re Fox, No. 0116-85 (Ct. of Appeals Mar. 19, 1985).

    Prohibition lies where error would deprive court of jurisdiction. —

    If the ruling complained of is mere error (e.g., evidentiary ruling), then appeal is the proper route for the aggrieved party to pursue; however, if it is alleged that the ruling of the trial court is erroneous and would deprive it of jurisdiction to retry the defendant, then prohibition lies where the facts are not in dispute. In re Fox, No. 0116-85 (Ct. of Appeals Mar. 19, 1985).

    II.Decisions Under Prior Law.

    A.General Consideration.

    Editor’s note.

    B.Mandamus.

    Mandamus was a common-law writ, but the proceedings are now largely statutory. State Bd. of Educ. v. Carwile, 169 Va. 663 , 194 S.E. 855 , 1938 Va. LEXIS 241 (1938).

    A writ of mandamus is an extraordinary remedial process. It lies to compel performance of a ministerial act by a public official only when there is a clear and unequivocal duty imposed by law upon the officer to perform the act. The absence of another adequate remedy at law is essential to its application. May v. Whitlow, 201 Va. 533 , 111 S.E.2d 804, 1960 Va. LEXIS 126 (1960).

    The function of a writ of mandamus is to enforce the performance of duties growing out of the discharge of public functions, or imposed by statute, or in some respect involving a trust or official duty. Richmond Ry. & Elec. Co. v. Brown, 97 Va. 26 , 32 S.E. 775 , 1899 Va. LEXIS 7 (1899); Carolina, C & O Ry. v. Board of Supvrs., 109 Va. 34 , 63 S.E. 412 , 1909 Va. LEXIS 1 (1909).

    It should be issued only where there is a clear and specific legal right. —

    The writ of mandamus should be issued only where there is a clear and specific legal right to be enforced or a duty which ought to be and can be performed, and where there is no other specific and adequate legal remedy, and it is never granted in doubtful cases. Gilliam v. Harris, 203 Va. 316 , 124 S.E.2d 188, 1962 Va. LEXIS 145 (1962).

    Mandamus will never issue in doubtful cases and therefore was denied where petitioner failed to prove his allegations. Legum v. Harris, 205 Va. 99 , 135 S.E.2d 125, 1964 Va. LEXIS 150 (1964).

    Mandamus should be reserved to discharge its principal purpose, i.e., to enforce a clearly established right and to enforce a corresponding imperative duty created or imposed by law. Stroobants v. Fugate, 209 Va. 275 , 163 S.E.2d 192, 1968 Va. LEXIS 226 (1968).

    Mandamus will never be allowed to usurp the functions of a writ of error, appeal or certiorari. Thus the writ was refused where it was sought to compel a judge to allow a certain person to become a party to a suit, appeal being the proper remedy. Moon v. Wellford, 84 Va. 34 , 4 S.E. 572 , 1887 Va. LEXIS 5 (1887).

    It will not issue to require exercise of discretionary legislative function. —

    Mandamus will not issue to require a local political unit to exercise its discretionary, legislative function in levying taxes and appropriating funds for the maintenance of public schools. Griffin v. Board of Supvrs., 203 Va. 321 , 124 S.E.2d 227, 1962 Va. LEXIS 146 (1962).

    Mandamus cannot be used to enforce mere contractual obligation. —

    Mandamus is an extraordinary legal remedy, designed to meet emergencies, and to prevent failure of justice. It cannot be used to enforce a mere contractual obligation nor, generally, to enforce collection of a mere money demand from public officer, if the creditor has an adequate remedy by action at law. Rinehart & Dennis Co. v. McArthur, 123 Va. 556 , 96 S.E. 829 , 1918 Va. LEXIS 53 (1918).

    Mandamus is proper remedy of stockholder denied his right of inspection. —

    The writ of mandamus is a proper remedy both under the statute and at common law, available to a stockholder who has been improperly denied his right of inspection, but the petition must state “plainly and concisely the grounds of the application.” It is fundamental that in order to secure the enforcement of such right, by mandamus or any other remedy, the complainant must satisfy the court that a right of inspection exists in the particular instance. Bank of Giles County v. Mason, 199 Va. 176 , 98 S.E.2d 905, 1957 Va. LEXIS 177 (1957).

    It lies to compel city official to promulgate regulations as required by ordinance. —

    Mandamus is a proper remedy to compel a city official to promulgate regulations which a city ordinance requires that he promulgate, even though he cannot be controlled in the exercise of discretion which the ordinance may give him as to the content of the regulations. Richmond Funeral Dirs. Ass'n v. Groth, 202 Va. 792 , 120 S.E.2d 467, 1961 Va. LEXIS 180 (1961).

    And to determine right of former city official to payment of salary. —

    Mandamus was held to be a proper procedure for determination by a former city sergeant of his right to payment of salary after termination of his regular term in office as a result of the consolidation of two cities. Walker v. Massie, 202 Va. 886 , 121 S.E.2d 448, 1961 Va. LEXIS 193 (1961).

    Mandamus is not technically and strictly a proper remedy to require commencement of condemnation proceedings. But its use was not error in view of particular facts and circumstances. May v. Whitlow, 201 Va. 533 , 111 S.E.2d 804, 1960 Va. LEXIS 126 (1960).

    Mandamus will not lie to compel the Highway Commissioner to institute condemnation proceedings in the proper court to ascertain what compensation is due petitioners for the damages which, they allege, have been done to their property by the acts of the respondent, since, under § 8.01-187 , the cause of action asserted by the petitioners can be resolved in a declaratory judgment proceeding in a lower court. Stroobants v. Fugate, 209 Va. 275 , 163 S.E.2d 192, 1968 Va. LEXIS 226 (1968).

    The original jurisdiction of the Supreme Court could not be invoked to issue a writ of mandamus to require the State Highway Commissioner to condemn land which he believed already to be property of the State. A declaratory judgment proceeding is an adequate means for determining the ownership of such land. Gilliam v. Harris, 203 Va. 316 , 124 S.E.2d 188, 1962 Va. LEXIS 145 (1962).

    Mandamus to compel condemnation by the State Highway Commissioner was properly denied where petitioner’s proof left in doubt his allegation that highway construction had caused damage to his building. Legum v. Harris, 205 Va. 99 , 135 S.E.2d 125, 1964 Va. LEXIS 150 (1964).

    A court has jurisdiction by mandamus to compel its clerk to do a ministerial act concerning which he had no discretion. Rinehart & Dennis Co. v. McArthur, 123 Va. 556 , 96 S.E. 829 , 1918 Va. LEXIS 53 (1918).

    And judge may be compelled to sign bill of exceptions. —

    The Supreme Court has power, by mandamus, to compel a judge of an inferior court to sign a proper bill of exceptions. Collins v. Christian, 93 Va. 1 , 24 S.E. 472 , 1896 Va. LEXIS 44 (1896).

    C.Prohibition.

    Plea to jurisdiction of lower court as prerequisite to issuance of prohibition. —

    As a general rule a writ of prohibition will not be issued to an inferior court unless a plea to the jurisdiction has been filed in the court whose proceeding it seeks to arrest, but the rule is to be applied in the discretion of the superior court on the principle that the matter of judicial courtesy to a lower court should yield to substantial rights of litigants, particularly where the case involves matters of public interest and convenience. King v. Hening, 203 Va. 582 , 125 S.E.2d 827, 1962 Va. LEXIS 189 (1962).

    Function of writ of prohibition. —

    The writ of prohibition lies to prevent the exercise of the jurisdiction of the court by the judge to whom it is directed, either where he has no jurisdiction at all or is exceeding his jurisdiction. Grief v. Kegley, 115 Va. 552 , 79 S.E. 1062 , 1913 Va. LEXIS 69 (1913).

    Prohibition is the appropriate remedy to prevent a justice of the peace, or police justice, from exceeding his jurisdiction. Martin v. City of Richmond, 108 Va. 765 , 62 S.E. 800 , 1908 Va. LEXIS 95 (1908).

    CIRCUIT COURT OPINIONS

    Writ of mandamus granted. —

    Court’s mandamus ordered clerk to do ministerial act: to treat woman’s personal injury pleadings as received, filed, and on docket as of day they were presented to clerk (statute of limitation’s last day) even though caption named wrong court; the clerk had no authority to pass upon the validity of instruments presented for filing. Burkholder v. McGraw, 63 Va. Cir. 537, 2003 Va. Cir. LEXIS 360 (Roanoke County Dec. 31, 2003).

    § 8.01-644.1. Limitations of actions for petition for mandamus.

    A petition for extraordinary writ of mandamus, filed by or on behalf of a person confined in a state correctional facility, shall be brought within one year after the cause of action accrues.

    History. 1998, c. 596.

    Michie’s Jurisprudence.

    For related discussion, see 12B M.J. Mandamus, § 3.

    § 8.01-645. What petition to state; where presented.

    The petition shall state plainly and concisely the grounds of the application, concluding with a prayer for the writ, and shall be presented to the court having jurisdiction, unless the application is to the Court of Appeals or the Supreme Court.

    History. Code 1950, § 8-705; 1977, c. 617; 1984, c. 703.

    Michie’s Jurisprudence.

    For related discussion, see 12B M.J. Mandamus, § 28.

    CASE NOTES

    Jurisdiction to compel maintenance of bridge between adjacent counties. —

    A circuit judge has jurisdiction to compel a county by mandamus to contribute to maintain a bridge over a place between it and an adjacent county. Gloucester County v. Middlesex County, 88 Va. 843 , 14 S.E. 660 , 1892 Va. LEXIS 37 (1892) (decided under prior law).

    § 8.01-646. When writ awarded if no defense made.

    When the application is made, on proof of notice and service of the copy of the petition as aforesaid, if the defendant fails to appear, or appearing fails to make defense, and the petition states a proper case for the writ, a peremptory writ shall be awarded with costs.

    History. Code 1950, § 8-706; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 12B M.J. Mandamus, §§ 30, 32.

    § 8.01-647. Defense; how made.

    The defendant may file a demurrer or answer on oath to the petition, or both. The court may permit amendments of the pleadings as in other cases.

    History. Code 1950, § 8-707; 1977, c. 617.

    Law Review.

    For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Amendments, § 2.

    CASE NOTES

    Editor’s note.

    Allegations in petition for mandamus are not admitted as true by failure of the answer to traverse them. Board of Supvrs. v. Randolph, 89 Va. 614 , 16 S.E. 722 , 1893 Va. LEXIS 79 (1893).

    What defenses may be made. —

    In a mandamus proceeding, under this chapter, it would seem that any defense may be made which shows that the petitioner is not entitled to the writ prayed for. Rinehart & Dennis Co. v. McArthur, 123 Va. 556 , 96 S.E. 829 , 1918 Va. LEXIS 53 (1918).

    Admission of third-party claimants as parties. —

    If the defendant is the mere custodian of a fund, in which he claims no interest, but which is in good faith claimed by another, there is no good reason, under the liberal provisions of the new procedure, why the claimant should not be admitted as a party, and the rights of the parties thus speedily determined in the mandamus proceeding. Rinehart & Dennis Co. v. McArthur, 123 Va. 556 , 96 S.E. 829 , 1918 Va. LEXIS 53 (1918).

    Waiver of objection to procedure. —

    Defendant waived his objection to mandamus procedure when he answered the petition without filing objections to the procedure, or to the jurisdiction, and joined in the issue, thereby submitting himself to the jurisdiction of the court, permitting it to promptly determine the merits of the principal question in controversy. May v. Whitlow, 201 Va. 533 , 111 S.E.2d 804, 1960 Va. LEXIS 126 (1960).

    CIRCUIT COURT OPINIONS

    Denial of demurrer. —

    Circuit court declined to sustain a demurrer by a health department because the writ of mandamus which the permit applicant sought depended upon the health department having acted in its discretion when it determined that it had no jurisdiction over the application and the court wanted to hear the testimony of professional engineers on the issue. Fisher v. Westmoreland Cty. Health Dep't, 104 Va. Cir. 411, 2011 Va. Cir. LEXIS 313 (Amelia County Oct. 31, 2011).

    § 8.01-648. What judgment to be rendered.

    The court shall award or deny the writ according to the law and facts of the case, with or without costs.

    History. Code 1950, § 8-709; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 12B M.J. Mandamus, §§ 32, 35.

    § 8.01-649. Proceedings when application is to Supreme Court or Court of Appeals.

    If the application is to the Court of Appeals or the Supreme Court, the procedure shall be in accordance with the provisions of Rules of Court.

    History. Code 1950, § 8-710; 1977, c. 617; 1984, c. 703.

    REVISERS’ NOTE

    Section 8.01-649 conforms former § 8-710 with Rule 5:5.

    Michie’s Jurisprudence.

    For related discussion, see 12B M.J. Mandamus, § 31.

    § 8.01-650. Suspension of proceedings, where prohibition applied for.

    On petition for a writ of prohibition, the court may, at any time before or after the application for the writ is made, make an order, a copy of which shall be served on the defendant, suspending the proceedings sought to be prohibited until the final decision of the cause.

    History. Code 1950, § 8-711; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 15 M.J. Prohibition, § 27.

    § 8.01-651. Suspension of proceedings by justice of Supreme Court or judge of Court of Appeals.

    Whenever a court having jurisdiction refuses to suspend proceedings as provided in § 8.01-650 of this chapter, a copy of the proceedings in court, with any orders entered in the proceedings, may be presented to a judge of the Court of Appeals, if an application for a writ of prohibition is pending in that court, or to a justice of the Supreme Court if the application for a writ is pending there. Such judge or justice may thereupon award a suspension of the proceedings sought to be prohibited until the final decision of the cause.

    History. Code 1950, § 8-711.1; 1972, c. 673; 1977, c. 617; 1984, c. 703.

    REVISERS’ NOTE

    Former § 8-712 (How proceedings in vacation certified. . .) is deleted as unnecessary.

    § 8.01-652. Service of writ; how obedience enforced.

    Service of a copy of the order awarding the writ shall be equivalent to service of the writ, and obedience to the writ or order may be enforced by process of contempt.

    History. Code 1950, § 8-713; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 12B M.J. Mandamus, § 35.

    § 8.01-653. Mandamus to secure construction of act directing payment out of treasury of the Commonwealth.

    Whenever the Comptroller or the Treasurer of the Commonwealth shall notify the Attorney General, in writing, that they, or either of them, entertain such doubt respecting the proper construction or interpretation of any act of the General Assembly which appropriates or directs the payment of money out of the treasury of the Commonwealth, or respecting the constitutionality of any such act, that they, or either of them, do not feel that it would be proper or safe to pay such money until there has been a final adjudication by the Supreme Court determining any and all such questions, and that, for such reason, they will not make payments pursuant to such act until such adjudication has been made, the Attorney General may file in such court a petition for a writ of mandamus directing or requiring the Comptroller or Treasurer of the Commonwealth, or both, to pay such money as provided by any such act at such time in the future as may be proper. In order to avoid delays in payments after the time for making them has arrived, any such petition may be filed at any time after the passage of any such act although the time for making such payments has not arrived and no demand for such payments has been made. In any such proceeding the court shall consider and determine all questions raised by the Attorney General’s petition pertaining to the constitutionality or interpretation of any such act, even though some of such questions may not be necessary to the decision of the question of the duty of such Comptroller and Treasurer of the Commonwealth to make payment of the moneys appropriated or directed to be paid.

    The Comptroller and the Treasurer of the Commonwealth, or either of them, as the case may be, shall be made a party or parties defendant to any such petition and the court may, in its discretion, cause such other officers or persons to be made parties defendant as it may deem proper, and may make such order respecting the employment of an attorney or attorneys for any officer of the Commonwealth who is a party defendant as may be appropriate. The compensation of any such attorney shall be fixed by such court and upon its order paid out of the appropriation to the office or department of any such public officer represented by any such attorney in such proceeding.

    History. Code 1950, § 8-714; 1977, c. 617.

    Law Review.

    For a review of civil practice and procedure in Virginia for year 1999, see 33 U. Rich. L. Rev. 801 (1999).

    Michie’s Jurisprudence.

    For related discussion, see 4C M.J. Constitutional Law, § 6.

    CASE NOTES

    This section does not permit the Attorney General to challenge the constitutionality of an act by adding parties in the role of petitioners whom he expects will defend that act and seek payment under it. Earley v. Landsidle, 257 Va. 365 , 514 S.E.2d 153, 1999 Va. LEXIS 46 (1999).

    Subject matter jurisdiction exceeded. —

    Where the Attorney General assumed the role of party defendant by asking the court to direct the Comptroller not to pay money under challenged items until the next session of the Virginia General Assembly, the petition exceeded the subject matter jurisdiction granted to the Virginia Supreme Court under this section, as the statute only permits the Attorney General to petition the court to seek payment of money that he believes the Comptroller is improperly withholding. Earley v. Landsidle, 257 Va. 365 , 514 S.E.2d 153, 1999 Va. LEXIS 46 (1999).

    The Supreme Court is not limited to the questions raised by the Attorney General’s petition for mandamus, but may consider all constitutional questions presented. Almond v. Day, 197 Va. 419 , 89 S.E.2d 851, 1955 Va. LEXIS 237 (1955) (decided under prior law).

    § 8.01-653.1. Mandamus to secure construction of act granting power to incur certain obligations for transportation needs.

    Whenever the Comptroller notifies the Attorney General in writing that he entertains doubt respecting the constitutionality of any act of the General Assembly granting an agency of the Commonwealth or other governmental board or entity of the Commonwealth general powers to incur obligations for transportation needs where such obligations are subject to authorization by the General Assembly, the Attorney General shall file in the Supreme Court a petition for a writ of mandamus directing or requiring the Comptroller to pay the money as provided by any such act at such time in the future as may be proper. In order to expedite long-term planning by such an agency of the Commonwealth or other governmental board or entity of the Commonwealth and expedite its advice to the Governor and the General Assembly on possible alternative means of financing Virginia’s transportation needs, the petition may be filed after the enactment date of any such act, although (i) the General Assembly may not have enacted legislation specifically authorizing such an agency of the Commonwealth or other governmental board or entity of the Commonwealth to enter into specific obligations under its general authority or (ii) if such specific obligations have been authorized, the time for making payments has not arrived and no demand for payment has been made. The court shall consider and determine all questions raised by the Attorney General’s petition pertaining to the constitutionality or interpretation of any such act, even though some of the questions may not be necessary to the decision regarding the duty of the Comptroller to make payment of the moneys appropriated or directed to be paid.

    The Comptroller shall be made a party defendant to the petition. The court may, in its discretion, cause other officers or persons to be made parties defendant as it may deem proper, and may make such order respecting the employment of an attorney or attorneys for any officer of the Commonwealth who is a party defendant as may be appropriate. The compensation of any attorney so employed shall be fixed by the court and upon its order paid out of the appropriation to the office or department of the public officer represented by the attorney in the proceeding.

    History. 1986, Sp. Sess., cc. 14, 16.

    Michie’s Jurisprudence.

    For related discussion, see 12B M.J. Mandamus, §§ 1, 15.

    Article 3. Habeas Corpus.

    § 8.01-654. When and where petition filed; what petition to contain.

      1. A petition for a writ of habeas corpus ad subjiciendum may be filed in the Supreme Court or any circuit court showing by affidavits or other evidence that the petitioner is detained without lawful authority. A. 1. A petition for a writ of habeas corpus ad subjiciendum may be filed in the Supreme Court or any circuit court showing by affidavits or other evidence that the petitioner is detained without lawful authority.
      2. A petition for writ of habeas corpus ad subjiciendum, other than a petition challenging a criminal conviction or sentence, shall be brought within one year after the cause of action accrues. A habeas corpus petition attacking a criminal conviction or sentence shall be filed within two years from the date of final judgment in the trial court or within one year from either final disposition of the direct appeal in state court or the time for filing such appeal has expired, whichever is later.
      1. With respect to any such petition filed by a petitioner whose detention originated under criminal process, and subject to the provisions of § 17.1-310 , only the circuit court that entered the original judgment or order resulting in the detention complained of in the petition shall have authority to issue writs of habeas corpus. If a district court entered the original judgment or order resulting in the detention complained of in the petition, only the circuit court for the city or county wherein the district court sits shall have authority to issue writs of habeas corpus. Hearings on such petition, where granted in the circuit court, may be held at any circuit court within the same circuit as the circuit court in which the petition was filed, as designated by the judge thereof. B. 1. With respect to any such petition filed by a petitioner whose detention originated under criminal process, and subject to the provisions of § 17.1-310 , only the circuit court that entered the original judgment or order resulting in the detention complained of in the petition shall have authority to issue writs of habeas corpus. If a district court entered the original judgment or order resulting in the detention complained of in the petition, only the circuit court for the city or county wherein the district court sits shall have authority to issue writs of habeas corpus. Hearings on such petition, where granted in the circuit court, may be held at any circuit court within the same circuit as the circuit court in which the petition was filed, as designated by the judge thereof.
      2. Such petition shall contain all allegations the facts of which are known to petitioner at the time of filing and such petition shall enumerate all previous applications and their disposition. No writ shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition. The provisions of this section shall not apply to a petitioner’s first petition for a writ of habeas corpus when the sole allegation of such petition is that the petitioner was deprived of the right to pursue an appeal from a final judgment of conviction or probation revocation, except that such petition shall contain all facts pertinent to the denial of appeal that are known to the petitioner at the time of the filing, and such petition shall certify that the petitioner has filed no prior habeas corpus petitions attacking the conviction or probation revocation.
      3. Such petition may allege detention without lawful authority through challenge to a conviction, although the sentence imposed for such conviction is suspended or is to be served subsequently to the sentence currently being served by petitioner.
      4. In the event the allegations of illegality of the petitioner’s detention can be fully determined on the basis of recorded matters, the court may make its determination whether such writ should issue on the basis of the record.
      5. The court shall give findings of fact and conclusions of law following a determination on the record or after hearing, to be made a part of the record and transcribed.
      6. If petitioner alleges as a ground for illegality of his detention the inadequacy of counsel, he shall be deemed to waive his privilege with respect to communications between such counsel and himself to the extent necessary to permit a full and fair hearing for the alleged ground.

    History. Code 1950, § 8-596; 1958, c. 215; 1968, c. 487; 1977, c. 617; 1978, c. 124; 1995, c. 503; 1998, c. 577; 2005, c. 836; 2019, cc. 8, 48; 2021, Sp. Sess. I, cc. 344, 345.

    Cross references.

    For constitutional provisions, see VA. Const., Art. I, § 9, Art. VI, § 1.

    For provision that members of the General Assembly must obey the writ, see § 30-8.

    As to use of writ to test legality of detention of persons held in custody as mentally ill, see §§ 37.2-844 .

    Editor’s note.

    Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: “That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia.”

    Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: “That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law.”

    Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice.”

    The 2005 amendments.

    The 2005 amendment by c. 836, added the third sentence in subdivision B 2; and made minor stylistic changes.

    The 2019 amendments.

    The 2019 amendments by cc. 8 and 48 are identical, and rewrote subdivision A 1, which read: “The writ of habeas corpus ad subjiciendum shall be granted forthwith by the Supreme Court or any circuit court, to any person who shall apply for the same by petition, showing by affidavits or other evidence probable cause to believe that he is detained without lawful authority”; in subdivision B 1, substituted “whose detention originated” for “held,” and substituted “or order resulting in the detention” for “order of conviction or convictions” twice; and made stylistic changes.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted “except as provided in § 8.01-654.1 for cases in which a death sentence has been imposed” preceding “shall be filed” in subdivision A 2; and deleted “subsection C of this section and of” following “provisions of” in the first sentence of subdivision B 1; and deleted subsection C, pertaining to jurisdiction over writs of habeas corpus in death penalty cases.

    Law Review.

    For article, “Federal Habeas Corpus: State Prisoners and the Concept of Custody,” see 4 U. Rich. L. Rev. 1 (1969).

    For note, “The Attorney-Client Privilege,” see 19 U. Rich. L. Rev. 559 (1985).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 11.5, 240.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Virginia’s pro se procedures are in no sense futile or arcane. The form contained in § 8.01-655 is a simple one. Mallory v. Smith, 27 F.3d 991, 1994 U.S. App. LEXIS 16356 (4th Cir.), cert. denied, 513 U.S. 1047, 115 S. Ct. 644, 130 L. Ed. 2d 549, 1994 U.S. LEXIS 8716 (1994).

    Scope of jurisdiction of Court of Appeals. —

    The Court of Appeals has original jurisdiction to issue writs of habeas corpus. However, only the circuit court which entered the original judgment order of conviction may issue a writ for one held under criminal process. The Supreme Court’s grant of original jurisdiction in habeas corpus matters is not subject to this limitation. However, the Court of Appeal’s grant of jurisdiction in these matters is limited. Bullock v. Director of Dep't of Cors., 1 Va. App. 70, 334 S.E.2d 150, 1985 Va. App. LEXIS 63 , cert. denied, 474 U.S. 1023, 106 S. Ct. 576, 88 L. Ed. 2d 559, 1985 U.S. LEXIS 4816 (1985).

    Retroactivity of amendments. —

    Court concluded the amended subdivision B 2 of § 8.01-654 did not apply to a prisoner’s motion to amend his pleadings because the amended statute did not provide that it applied retroactively and the state supreme court had not ruled that it applied retroactively. Wiggins v. Va. Dep't of Corr., 190 Fed. Appx. 295, 2006 U.S. App. LEXIS 18030 (4th Cir. 2006).

    Cognizable issues. —

    Where defendant claimed that his conviction for possession of cocaine with intent to distribute in violation of § 18.2-248 was invalid because the police executed an illegal “no knock” search, it was not cognizable in a habeas corpus proceeding because it had been decided by the trial court and on direct appeal. Henry v. Warden, 265 Va. 246 , 576 S.E.2d 495, 2003 Va. LEXIS 31 (2003).

    Inmate’s habeas corpus petition was dismissed where his first five claims were barred because all of the issues were raised and decided in the trial court and on direct appeal and where the inmate’s allegation of ineffective assistance of counsel satisfied neither the performance nor the prejudice prong of the Strickland test. Reyes v. Warden of the Sussex I State Prison, 2008 Va. LEXIS 143 (Va. Dec. 4, 2008).

    Petitioner’s application for a writ of habeas corpus was dismissed because his claim that he did not receive constitutionally guaranteed assistance of experts was barred because the non-jurisdictional issue could have been raised at trial and on direct appeal and, thus, was not cognizable in a petition for a writ of habeas corpus. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Petitioner’s application for a writ of habeas corpus was dismissed because his claim that he received multiple punishments in violation of Double Jeopardy was barred because the non-jurisdictional issue could have been raised at trial and on direct appeal and, thus, was not cognizable in a petition for a writ of habeas corpus. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Writ of habeas corpus not to determine guilt or innocence of prisoner. —

    The only issue which it presents is whether or not the prisoner is restrained of his liberty by due process of law. Further, it is well settled that habeas corpus cannot be used to perform the function of an appeal or writ of error, to review errors, or to modify or revise a judgment of conviction pronounced by a court of competent jurisdiction. It cannot be used to secure a judicial determination of any question which, even if determined in the prisoner’s favor, could not affect the lawfulness of his immediate custody and detention. Fitzgerald v. Bass, 6 Va. App. 38, 366 S.E.2d 615, 4 Va. Law Rep. 2165, 1988 Va. App. LEXIS 15 (1988), cert. denied, 493 U.S. 945, 110 S. Ct. 354, 107 L. Ed. 2d 342, 1989 U.S. LEXIS 5135 (1989).

    Interests served by habeas filing requirements. —

    Requiring a petitioner to assert all his known claims at one time in a single document obviously serves a valid state interest in assuring finality of decisions. Moreover, requiring parties to refrain from filing any document after the initial pleadings without permission of the state supreme court serves a valid interest in assuring the orderly processing of petitions. Taylor v. Murray, 855 F. Supp. 124, 1994 U.S. Dist. LEXIS 8061 (E.D. Va. 1994).

    Re-characterization of pleading. —

    Virginia trial judges must notify pro se litigants of the potential consequences when re-characterizing their pleading, however, if thereafter the pro se litigant is given the opportunity to withdraw or amend the pleading to state all then-available claims and does not withdraw the pleading or agrees to the re-characterization after receiving notice and warning from the trial judge, then § 8.01-654 and its associated limitations apply; a pro se litigant is not limited to challenging an unwarned re-characterization on appeal, but may do so when a later-filed habeas petition is challenged as being a second habeas application barred by the successive petitions provision of the statute. Dorr v. Clarke, 284 Va. 514 , 733 S.E.2d 235, 2012 Va. LEXIS 192 (2012).

    Inmate’s petition for a writ of mandamus could be considered his first habeas petition for purposes of limiting his right to file a subsequent habeas petition under § 8.01-654 because the circuit court re-characterized the motion without providing the inmate notice or an opportunity to be heard and ordered that his petition be dismissed. Dorr v. Clarke, 284 Va. 514 , 733 S.E.2d 235, 2012 Va. LEXIS 192 (2012).

    Re-characterization of an inmate’s petition for a writ of mandamus could not have affected the circuit court’s conclusion because the inmate would not be barred from filing a future petition for a writ of habeas corpus as a successive habeas petition, and the circuit court properly concluded that the inmate was not entitled to credit toward his Virginia sentence. Dorr v. Clarke, 284 Va. 514 , 733 S.E.2d 235, 2012 Va. LEXIS 192 (2012).

    Habeas relief complied with purpose and scope of writ. —

    Court’s decision granting a writ of habeas corpus complied with the purpose and scope of the writ of habeas corpus under § 8.01-654 , which was to test the legality of a prisoner’s detention, as although defendant was serving concurrent sentences on the common-law involuntary manslaughter and aggravated involuntary manslaughter convictions, the writ with regard to the common-law involuntary manslaughter conviction would result in defendant’s release from immediate detention on that conviction and sentence. West v. Dir. of the Dep't of Corr., 273 Va. 56 , 639 S.E.2d 190, 2007 Va. LEXIS 17 (2007).

    Court of Appeals should not consider original petition for writ of habeas corpus when adequate remedy may be had in circuit courts under this section. White v. Garraghty, 2 Va. App. 117, 341 S.E.2d 402, 1986 Va. App. LEXIS 248 (1986).

    Non-frivolous mental retardation claim must be remanded to circuit court. —

    If the court finds that a mental retardation claim is not frivolous, it must “remand” the factual issue of mental retardation to the circuit court for determination. Under the plain language of the statute, the traditional “referral” of factual matters to a circuit court for an evidentiary hearing available in a capital habeas corpus proceeding, subsection C of § 8.01-654 , is not available for proceedings arising pursuant to § 8.01-654 .2; the requirement that a non-frivolous claim be remanded applies whether the claim is raised in the context of a direct appeal or a petition for habeas corpus. Burns v. Warden of the Sussex I State Prison, 269 Va. 351 , 609 S.E.2d 608, 2005 Va. LEXIS 33 (2005).

    Federal court won’t determine if state court should have seen additional claims in pleading. —

    Where prisoner identified three grounds in his pleadings under § 8.01-655 , and the Virginia Supreme Court disposed of each of those three grounds in its order, the federal appellate court will not go further and determine whether the Virginia Supreme Court should have seen another claim in his filings. To have the federal court scan the information contained in prisoner’s form for further facts that conceivably might make out other federal claims would send a strong signal to state courts that their procedures will not be respected by their federal counterparts and would also signal litigants that they may ignore state procedures and still expect the federal courts to hear claims that state courts would have had to stitch together from stray references in order to review. Mallory v. Smith, 27 F.3d 991, 1994 U.S. App. LEXIS 16356 (4th Cir.), cert. denied, 513 U.S. 1047, 115 S. Ct. 644, 130 L. Ed. 2d 549, 1994 U.S. LEXIS 8716 (1994).

    Simultaneous habeas petition and direct appeal. —

    Petition for a writ of habeas corpus and a direct appeal from a final judgment of conviction can proceed simultaneously in the Supreme Court of Virginia. Sigmon v. Dir. of the Dep't of Corr., 285 Va. 526 , 739 S.E.2d 905, 2013 Va. LEXIS 53 (2013).

    Defendant must address reason for not raising known grounds in earlier petition to receive federal consideration. —

    In Virginia, a writ of habeas corpus may be granted on the basis of any allegation the facts of which defendant had knowledge at the time of filing any previous petition; thus where defendant knew of the grounds of his present Brady claim when he filed his first petition, this section precluded review of his claim in any future state habeas corpus proceeding. Because defendant made no attempt to demonstrate cause or prejudice for his default in state habeas corpus proceedings, it could not then be raised in his federal suit for such writ. Gray v. Netherland, 518 U.S. 152, 116 S. Ct. 2074, 135 L. Ed. 2d 457, 1996 U.S. LEXIS 4050 (1996).

    Habeas corpus petitions must allege sufficient facts which, if true, would support the conclusion of law advanced; mere conclusions or opinions of the pleader will not suffice to make out a case. Fitzgerald v. Bass, 6 Va. App. 38, 366 S.E.2d 615, 4 Va. Law Rep. 2165, 1988 Va. App. LEXIS 15 (1988), cert. denied, 493 U.S. 945, 110 S. Ct. 354, 107 L. Ed. 2d 342, 1989 U.S. LEXIS 5135 (1989).

    Limitation on basis for relief. —

    Under this section, no writ of habeas corpus will be granted on the basis of any factual or legal claim which petitioner did not previously make but could have. Satcher v. Netherland, 944 F. Supp. 1222, 1996 U.S. Dist. LEXIS 20132 (E.D. Va. 1996), aff'd in part and rev'd in part, 126 F.3d 561, 1997 U.S. App. LEXIS 25188 (4th Cir. 1997).

    New grounds prohibited in petition following petition voluntarily withdrawn. —

    Where a prisoner had previously filed a petition for habeas corpus but had voluntarily withdrawn that petition, the prisoner was entitled to file another petition, but that second petition was required to be limited to the ground assigned in the first petition and could not include new and different allegations. Dorsey v. Angelone, 261 Va. 601 , 544 S.E.2d 350, 2001 Va. LEXIS 47, cert. denied, 534 U.S. 924, 122 S. Ct. 279, 151 L. Ed. 2d 205, 2001 U.S. LEXIS 7053 (2001).

    Since there was no significant distinction between a habeas petition which was “withdrawn” on petitioner’s motion and one which was the subject of a voluntary nonsuit by petitioner, petitioner’s subsequent petition was dismissed. Daniels v. Warden of the Red Onion State Prison, 266 Va. 399 , 588 S.E.2d 382, 2003 Va. LEXIS 112 (2003).

    No relief from prior conviction where petition filed more than one year after statute went into effect. —

    Prisoner’s habeas corpus petition filed more than one year but less than two years after enactment of subdivision A 2 of § 8.01-654 , which allowed for filing of such petitions within a two-year period after a trial court’s final judgment in a noncapital criminal case, was nevertheless barred as his conviction occurred prior to enactment of the statute and his petition for writ of habeas corpus was filed more than one year after the statute went into effect. Haas v. Lee, 263 Va. 273 , 560 S.E.2d 256, 2002 Va. LEXIS 35 (2002).

    Limitation on procedural default bar. —

    The dismissal of an inmate’s state petition on the grounds of a procedural default under subdivision B 2 ordinarily bars federal review in that this section is an independent and adequate ground for denying relief; however, even where an inmate’s state petition has been dismissed there is no bar to federal review if a miscarriage of justice would result from lack of federal review. Jennings v. Parole Bd., 34 F. Supp. 2d 375, 1999 U.S. Dist. LEXIS 1112 (E.D. Va. 1999).

    Inmate’s petition for federal habeas review was denied because, by not presenting his ineffective assistance of counsel claims in the appeal of his conviction before the highest state court, the inmate did not exhaust his administrative remedies. The inmate’s ineffective assistance of counsel claims were thus procedurally barred by subdivisions A 2 and B 2 of § 8.01-654 , which provided a one-year statute of limitations and a ban on successive habeas petitions, respectively. Sparrow v. Dir., Dep't of Corr., 439 F. Supp. 2d 584, 2006 U.S. Dist. LEXIS 50766 (E.D. Va. 2006).

    In a case in which a pro se state inmate filed a 28 U.S.C.S. § 2254 petition for a writ of habeas corpus and a warden moved to dismiss, the Virginia Supreme Court’s dismissal of the inmate’s state habeas petition as untimely pursuant to subdivision A 2 of § 8.01-654 procedurally barred the federal district court from considering his claim. The inmate’s submissions showed that he knew for years that he had not received credit for his pretrial detention. Wallace v. Jarvis, 726 F. Supp. 2d 642, 2010 U.S. Dist. LEXIS 77201 (W.D. Va. 2010).

    Failure to exhaust notice claims. —

    Federal habeas corpus petitioner failed to exhaust and procedurally defaulted claims regarding notice of aggravating elements. Bailey v. True, No. 02-254, 2003 U.S. Dist. LEXIS 6529 (E.D. Va. Apr. 15, 2003), aff'd, 100 Fed. Appx. 128, 2004 U.S. App. LEXIS 5862 (4th Cir. 2004).

    In a case in which a pro se state inmate filed a 28 U.S.C.S. § 2254 petition for a writ of habeas corpus and a warden moved to dismiss, the Virginia Supreme Court’s dismissal of the inmate’s state habeas petition as untimely pursuant to subdivision A 2 of § 8.01-654 procedurally barred the federal district court from considering his claim. The inmate was required to exhaust the claim he was raising by fairly presenting it to the Supreme Court of Virginia in conformity with the state’s procedural rules. Wallace v. Jarvis, 726 F. Supp. 2d 642, 2010 U.S. Dist. LEXIS 77201 (W.D. Va. 2010).

    Procedural bar for failure to allege constitutional claim in state court petition. —

    Inmate was not entitled to habeas corpus relief because under subdivision B 2 of § 8.01-654 his failure to raise a double jeopardy claim in his prior habeas corpus petition with a state court precluded raising the issue in his subsequent federal petition for habeas corpus relief. Stickley v. Baskerville, 281 F. Supp. 2d 851, 2003 U.S. Dist. LEXIS 16079 (W.D. Va. 2003).

    Inmate was not entitled to habeas corpus relief because under subdivision B 2 of § 8.01-654 his failure to raise claims that his counsel was ineffective for failing to assist him with his motion for modification and for failing to file a direct appeal in his prior habeas corpus petition with a state court precluded raising the issue in his subsequent federal petition for habeas corpus relief. Stickley v. Baskerville, 281 F. Supp. 2d 851, 2003 U.S. Dist. LEXIS 16079 (W.D. Va. 2003).

    A default determination under subdivision B 2, reflects a finding that indeed the petitioner either knew or had available all of the facts on which the current petition was based. While this finding is often implicit, it is a finding nonetheless, and must be accorded presumptive validity. Barnes v. Thompson, 58 F.3d 971, 1995 U.S. App. LEXIS 16027 (4th Cir.), cert. denied, 516 U.S. 972, 116 S. Ct. 435, 133 L. Ed. 2d 350, 1995 U.S. LEXIS 7554 (1995).

    The subdivision B 2 default determination by the Commonwealth’s highest court reflects a finding that all of the facts on which the current petition was based were either known or available to the petitioner. Barnes v. Thompson, 58 F.3d 971, 1995 U.S. App. LEXIS 16027 (4th Cir.), cert. denied, 516 U.S. 972, 116 S. Ct. 435, 133 L. Ed. 2d 350, 1995 U.S. LEXIS 7554 (1995).

    And this factual finding is entitled to a presumption of correctness on federal habeas review, and may be rebutted only if the finding is not fairly supported by the record. Barnes v. Thompson, 58 F.3d 971, 1995 U.S. App. LEXIS 16027 (4th Cir.), cert. denied, 516 U.S. 972, 116 S. Ct. 435, 133 L. Ed. 2d 350, 1995 U.S. LEXIS 7554 (1995).

    Defendant must be sentenced to term of incarceration to file valid writ. —

    Defendants writ of habeas corpus could not test the legality of any incarceration because he was not sentenced to any term of incarceration, but only fined and placed on supervised probation. McClenny v. Murray, 246 Va. 132 , 431 S.E.2d 330, 9 Va. Law Rep. 1482, 1993 Va. LEXIS 88 (1993).

    Petitioner failed to present his claim of ineffective assistance of counsel in his first state habeas petition, where what petitioner presented suggested only his disagreement with his counsel’s advice. Accordingly the Virginia Supreme Court’s application of subdivision B 2 of this section to bar review was justified and presents a procedural bar to a federal district court’s review of his claim absent a showing of “cause” and “prejudice.” Smith v. Baker, 624 F. Supp. 1075, 1985 U.S. Dist. LEXIS 12194 (E.D. Va. 1985).

    The Virginia Supreme Court’s finding of a procedural bar was barred because petitioner failed to adequately present it in his first state habeas petition, constitutes an adequate and independent state ground which prohibits the federal district court from considering the merits of petitioner’s claim. Smith v. Baker, 624 F. Supp. 1075, 1985 U.S. Dist. LEXIS 12194 (E.D. Va. 1985).

    Petitioner’s request for habeas corpus relief was properly denied without an evidentiary hearing, where the trial record was sufficient to determine whether effective assistance of counsel had been denied and petitioner’s brief did not point out any alleged deficiency in the trial counsel’s performance. Friedline v. Commonwealth, 265 Va. 273 , 576 S.E.2d 491, 2003 Va. LEXIS 27 (2003).

    Since an inmate failed to properly raise his claim that the State’s administration of his medication interfered with his right to the effective assistance of counsel in his state habeas petition, the claim was procedurally defaulted and if the inmate now attempted to raise the claim, it would be barred by subdivision B 2 of § 8.01-654 ; thus, the court could not review the claim unless the inmate demonstrated cause for, and resulting prejudice from, the default or that he suffered a fundamental miscarriage of justice. Since the inmate did not make either showing, his claim was dismissed. Tate v. True, 264 Fed. Appx. 314, 2008 U.S. App. LEXIS 3129 (4th Cir. 2008).

    Ineffective assistance of counsel claim was not timely filed. —

    While defendants may have suffered ineffective assistance of counsel and may have been successful had they timely filed petitions for writs of habeas corpus pursuant to § 8.01-654 , neither did so, and ineffective assistance of counsel did not constitute an error of fact for the purposes of coram vobis under § 8.01-677 ; therefore, the errors of fact alleged by defendants did not constitute “errors of fact” for the purposes of coram vobis, as contemplated by § 8.01-677 . The court further held that the writ of audita querela may not be used to seek post-conviction relief from criminal sentences in Virginia; accordingly, the trial courts erred in their reliance upon the writs of error coram vobis and audita querela to modify the criminal sentences imposed in the cases, and the judgments of the trial courts were reversed and the petitions for writs of audita querela and coram vobis were dismissed. Commonwealth v. Morris, 281 Va. 70 , 705 S.E.2d 503, 2011 Va. LEXIS 19, cert. denied, 565 U.S. 825, 132 S. Ct. 115, 181 L. Ed. 2d 39, 2011 U.S. LEXIS 5486 (2011).

    Petition untimely. —

    Statutory limitation period did not operate as a suspension of the writ of habeas corpus in contravention of the Suspension Clause, and thus, petitioner’s application for a writ of habeas corpus was untimely; petitioner’s inability to question and present new evidence bearing on his factual guilt or innocence did not violate the Suspension Clause because he challenged only the reliability of the evidence adduced at his trial, not the subject matter jurisdiction of the sentencing court. Brown v. Booker, 297 Va. 245 , 826 S.E.2d 304, 2019 Va. LEXIS 34 (2019).

    Deferral of parole review without reason not grounds for habeas corpus jurisdiction. —

    Trial court had no jurisdiction to grant habeas corpus writ on the basis that defendant was denied due process when the Virginia Parole Board deferred his annual parole review without providing a reason, because the court’s determination did not affect the lawfulness of defendant’s immediate custody and detention and his release from his immediate detention would not have followed as a result of the court’s order. Virginia Parole Bd. v. Wilkins, 255 Va. 419 , 498 S.E.2d 695, 1998 Va. LEXIS 37 (1998).

    Filing of petition in state Supreme Court. —

    Petitioner did not violate any statute by filing his petition for writ of habeas corpus in the state supreme court; no showing was made that he was required to file the petition in the trial court in a case where he sought to challenge the effectiveness of his counsel for failing to timely file trial transcripts that resulted in the dismissal of his appeal of the trial court’s finding that he was a sexually violent predator subject to involuntary civil commitment. Jenkins v. Dir. of the Va. Ctr. for Behavioral Rehab., 271 Va. 4 , 624 S.E.2d 453, 2006 Va. LEXIS 12 (2006).

    New factual allegations present state court matter precluding federal review of ineffective assistance of counsel claim. —

    Petitioner’s mere presentation to the state court with the theory of ineffective assistance of counsel was insufficient to encompass the new factual allegations contained in one of the claims of his federal habeas corpus petition. Petitioner’s failure to give the state court an opportunity to resolve the claim precluded the federal court from addressing the merits, and the claim was dismissed. Banks v. Powell, 917 F. Supp. 414, 1996 U.S. Dist. LEXIS 2769 (E.D. Va. 1996).

    When evidence required to resolve issues. —

    When a factual dispute remains, evidence from witnesses examined ore tenus or by depositions is required to resolve the issue. Collison v. Underwood, No. 0204-85 (Ct. of Appeals Feb. 5, 1986).

    Circuit court erred in dismissing a habeas petition without taking evidence ore tenus or by affidavit where petitioner offered trial counsel’s letter stating that, as part of a plea agreement, a murder charge would be reduced to manslaughter, she had been charged and convicted of felony murder under the plea agreement, nothing else in the record indicated what additional advice or clarification occurred during client conferences, and thus, additional evidence beyond the recorded matters should have been received to determine whether counsel’s representation fell below an objective standard. Smith v. Brown, 291 Va. 260 , 781 S.E.2d 744, 2016 Va. LEXIS 8 (2016).

    When evidence not required to resolve issues. —

    Inmate was not entitled to an evidentiary hearing under subdivision B 4 of § 8.01-654 as the record contained transcripts of the proceedings in the inmate’s trial and sentencing, the relevant parts of a brother-in-law’s trial and sentencing, the inmate’s appellate proceedings, and affidavits furnished by both trial and appellate counsel; all ineffective assistance of counsel issues raised by the inmate’s habeas petition could be fully determined on the basis of recorded matters. Shaikh v. Johnson, 276 Va. 537 , 666 S.E.2d 325, 2008 Va. LEXIS 102 (2008).

    Failure to present mitigation evidence. —

    Petitioner’s application for a writ of habeas corpus was dismissed because he failed to satisfy the “performance” and “prejudice” prong of the two-part test enunciated in Strickland; counsel did not fail to investigate and to present mitigation evidence because petitioner did not proffer an affidavit from a witness to verify that he would have testified as petitioner contended, and the affidavits petitioner provided contained hearsay statements. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Cumulative evidence properly denied at evidentiary hearing. —

    Circuit court in an evidentiary hearing on a petition for a writ of habeas corpus did not abuse its discretion in refusing to admit affidavits into evidence, because the facts alleged in those affidavits were cumulative of the testimony of three witnesses. Lovitt v. Warden, 266 Va. 216 , 585 S.E.2d 801, 2003 Va. LEXIS 81 (2003), cert. denied, 541 U.S. 1006, 124 S. Ct. 2018, 158 L. Ed. 2d 523, 2004 U.S. LEXIS 3009 (2004), .

    Subdivision B 4 clearly envisions that there may be some cases in which the trial record will be sufficient for a determination whether counsel was ineffective and further testimony would not be necessary to resolve the issue. Hill v. Commonwealth, 8 Va. App. 60, 379 S.E.2d 134, 5 Va. Law Rep. 2121, 1989 Va. App. LEXIS 21 (1989).

    Where the state court found that the incompetency claim was defaulted because defendant knew of the facts underlying the claim at the time of his prior state petition was a factual finding with regard to prior knowledge, and it was entitled to a presumption of correctness from the federal district court. Clanton v. Muncy, 845 F.2d 1238, 1988 U.S. App. LEXIS 5089 (4th Cir.), cert. denied, 485 U.S. 1000, 108 S. Ct. 1459, 99 L. Ed. 2d 690, 1988 U.S. LEXIS 5656 (1988).

    Defendant’s challenge to sufficiency of evidence was properly exhausted in state courts. —

    Defendant’s challenge to the sufficiency of the evidence under the federal due process clause to convict him had been properly exhausted in the state courts; the Commonwealth’s contention that it has not been properly exhausted in the state courts rested on the erroneous premise that it involved a constitutional challenge to the facial validity of the permissive inference; it was not that, but was a straightforward due process challenge to the sufficiency of the evidence (in this case consisting solely of the basic facts of the inference) to convict; the fact that defendant did not couch his objections and challenges in state court in specific constitutional terms was of no consequence; it was not necessary to cite “book and verse on the federal Constitution” so long as the constitutional substance of the claim was evident. West v. Wright, 931 F.2d 262, 1991 U.S. App. LEXIS 7583 (4th Cir. 1991), amended, No. 89-6686 (4th Cir. 1991), rev'd, 505 U.S. 277, 112 S. Ct. 2482, 120 L. Ed. 2d 225, 1992 U.S. LEXIS 3689 (1992).

    Several of a federal habeas petitioner’s claims were procedurally defaulted because they were not presented to the state supreme court on direct appeal nor in state habeas corpus proceedings; while these claims were exhausted because state remedies were not available at the time of petitioner’s federal habeas petition owing to state procedural default rules, (§ 8.01-654 B 2), the same procedural bar that exhausted the claims also rendered them unavailable for federal habeas review because they had been found procedurally defaulted by an adequate and independent state law ground. Orbe v. True, 233 F. Supp. 2d 749, 2002 U.S. Dist. LEXIS 22958 (E.D. Va. 2002), aff'd, 82 Fed. Appx. 802, 2003 U.S. App. LEXIS 24896 (4th Cir. 2003).

    Habeas corpus petition was properly dismissed where it was not filed within the two-year limitations period of subdivision A 2 of § 8.01-654 ; had the inmate timely acted on what he claimed was newly discovered evidence, his ineffective assistance of counsel claim would have been discovered within two years of his rape conviction. Hines v. Kuplinski, 267 Va. 1 , 591 S.E.2d 692, 2004 Va. LEXIS 16 (2004).

    B.Petitioners Held Under Criminal Process.

    Deprivation of a constitutional right of a prisoner may be raised by habeas corpus. But this principle is inapplicable when a prisoner has been afforded a full and fair opportunity to raise his constitutional claim at trial and on appeal. Cartera v. Mitchell, 553 F. Supp. 866, 1982 U.S. Dist. LEXIS 16497 (E.D. Va. 1982).

    Determination upon trial record alone. —

    If the record of the criminal trial is sufficient itself to show the merit or lack of merit of a habeas petition, the case may be determined upon that record alone. Walker v. Mitchell, 224 Va. 568 , 299 S.E.2d 698, 1983 Va. LEXIS 163 (1983).

    Court not bound by omission in record in determining validity of waiver. —

    While the question of whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record, a habeas court considering the validity of a waiver is not bound by an omission in the trial record. Superintendent of Powhatan Correctional Center v. Barnes, 221 Va. 780 , 273 S.E.2d 558, 1981 Va. LEXIS 208 (1981).

    Prima facie showing by affidavit or other evidence of facts which, if true, show that petitioner is illegally detained entitles petitioner to hearing on his petition. Subdivision B 4 provides, however, that where a writ petitioner’s allegations “can be fully determined on the basis of recorded matters, the court may make its determination whether such writ should issue on the basis of the record.” Collison v. Underwood, No. 0204-85 (Ct. of Appeals Feb. 5, 1986).

    Affidavits not prohibited. —

    This section permits the habeas court to adjudicate a petitioner’s claims based upon the trial record; it does not prohibit the use of affidavits in the habeas proceeding. Yeatts v. Murray, 249 Va. 285 , 455 S.E.2d 18, 1995 Va. LEXIS 36 (1995).

    Findings presumed correct on appeal. —

    The factual findings of the trial court in a habeas corpus hearing are presumed to be correct and will be upheld on appeal unless plainly wrong or unsupported by credible evidence. Moreover, in reviewing the sufficiency of evidence on appeal, all evidence will be considered in the light most favorable to the appellee. Lee v. Neff, No. 0120-85 (Ct. of Appeals Nov. 8, 1985).

    Circuit court’s recommended conclusions of law, as required by § 8.01-654 C, involve mixed questions of law and fact subject to appellate de novo review. The circuit court’s factual findings, however, are entitled to deference and are binding upon the appellate court unless plainly wrong or without evidence to support them. Hedrick v. Warden of the Sussex I State Prison, 264 Va. 486 , 570 S.E.2d 840, 2002 Va. LEXIS 161 (2002).

    Knowledge of facts alleged at time of previous petition. —

    Where the facts alleged in the petition are those which the petitioner must have had knowledge of at the time he filed his previous petitions, a writ may not be granted on the basis of the facts alleged in this petition. Bonner v. Sielaff, No. 0580-85 (Ct. of Appeals Dec. 13, 1985).

    Dismissal of petition where filing long delayed. —

    Where the filing of a petition for habeas corpus claiming ineffective assistance of counsel is so long delayed that the Commonwealth is prejudiced in its defense of the claim, the petition may be dismissed unless the petitioner shows that, in the exercise of reasonable diligence, he could not have known of the grounds for the petition before the prejudice occurred. Walker v. Mitchell, 224 Va. 568 , 299 S.E.2d 698, 1983 Va. LEXIS 163 (1983).

    Procedural bar due to time delay. —

    Inmate’s claim that the Commonwealth committed prosecutorial misconduct in knowingly presenting the false testimony of a witness to the grand jury, presented in his petition for a writ of habeas corpus, was barred by § 8.01-654.1 and subdivision B 2 of § 8.01-654 , since the inmate never filed a petition that complied with the Supreme Court of Virginia’s rules within 60 days of the denial by the United States Supreme Court of a petition for a writ of certiorari to the judgment of Supreme Court of Virginia on direct appeal. Instead, the inmate filed an oversized petition for writ of habeas corpus, which he categorized as prophylactic, with the Supreme Court of Virginia twice directing him to file a petition for writ of habeas corpus that complied with its rules. Winston v. Warden of the Sussex I State Prison, 2007 Va. LEXIS 43 (Va. Mar. 7, 2007).

    Effect of dismissal for untimeliness on federal habeas petition. —

    State habeas court had dismissed an inmate’s ineffective assistance claims as untimely. As the untimely filing of a state habeas petition constitutes an adequate and independent ground for the denial of federal habeas relief, a federal habeas court found that his ineffective assistance claims were procedurally barred. Littlefield v. Hinkle, No. 7:05CV00419, 2005 U.S. Dist. LEXIS 31344 (W.D. Va. Nov. 22, 2005).

    Reading §§ 8.01-654 and 8.01-655 in pari materia, the legislature was addressing the same action when it used the term “filed” in each of these related statutes; thus, if a habeas petition does not qualify for filing due to a lack of full payment under subsection B of § 8.01-655 , then, as a matter of law, it is not “filed” for purposes of subdivision A 2 of § 8.01-654 . Lahey v. Johnson, 283 Va. 225 , 720 S.E.2d 534, 2012 Va. LEXIS 22 (2012).

    Petitioner could not raise a freestanding claim of actual innocence or argue his innocence had to exempt him from the limitation period because habeas corpus was not a vehicle for raising claims of actual innocence, nor did the statute of limitations include any exception for claims of innocence. Brown v. Booker, 297 Va. 245 , 826 S.E.2d 304, 2019 Va. LEXIS 34 (2019).

    Untimely filing of habeas application. —

    Petitioner’s application for a writ of habeas corpus was time-barred under subdivision A 2 of § 8.01-654 because the filing of the petition was conditioned upon proper payment of the filing fee under subsection B of § 8.01-655 , and petitioner did not complete payment of the filing fee until after the limitations period for filing the petition under subdivision A 2 of § 8.01-654 had expired; the filing provision at issue under subsection B of § 8.01-655 is unequivocal in providing, through plain and unambiguous language, that the petition “will not be filed without payment of court costs” where the petitioner is not seeking in forma pauperis status, and that language does not contain any terms open for interpretation. Lahey v. Johnson, 283 Va. 225 , 720 S.E.2d 534, 2012 Va. LEXIS 22 (2012).

    Lack of effective assistance of counsel. —

    Ordinarily, a claim of ineffective assistance of counsel would not be raised at the trial itself, so that such a claim would not be cognizable on direct appeal to the Supreme Court, under Supreme Court Rule 5:21 (see now Rule 5:25). Thus, a prisoner could not receive a full and fair opportunity to litigate the issue on appeal, and a state habeas action would lie on the ineffective assistance issue. Cartera v. Mitchell, 553 F. Supp. 866, 1982 U.S. Dist. LEXIS 16497 (E.D. Va. 1982).

    Although defendant pleaded guilty, trial counsel’s failure to file an appeal, after having been instructed to do so by defendant in accordance with Va. Sup. Ct. R. 5A:6, constituted deficient performance; defendant was entitled to habeas corpus relief and a belated appeal. Miles v. Sheriff of the Va. Beach City Jail, 266 Va. 110 , 581 S.E.2d 191, 2003 Va. LEXIS 64 (2003).

    Evidence of petitioner state death row inmate’s retardation, believed to have been destroyed but found just before the federal district court’s evidentiary hearing, should not have been excluded on the grounds that rendered an Atkins-related ineffective assistance of counsel claim unexhausted under 28 U.S.C.S. § 2254(b)(1), (d), as it did not fundamentally alter the claim as it had been considered by the state courts, and the inmate had requested an evidentiary hearing in state court as required by subdivision C 1 of § 8.01-654 , which had been denied, thus precluding discovery in the state habeas proceedings. Winston v. Kelly, 592 F.3d 535, 2010 U.S. App. LEXIS 1845 (4th Cir.), cert. denied, 562 U.S. 947, 131 S. Ct. 127, 178 L. Ed. 2d 243, 2010 U.S. LEXIS 7661 (2010), cert. denied, 562 U.S. 861, 131 S. Ct. 136, 178 L. Ed. 2d 83, 2010 U.S. LEXIS 5952 (2010).

    Failure to request curative instruction. —

    Petitioner’s application for a writ of habeas corpus was dismissed because he failed to satisfy the “performance” and “prejudice” prong of the two-part test enunciated in Strickland; petitioner could not demonstrate that counsel’s failure to ask for a curative instruction concerning a witness’s perceptions of the information the victim was attempting to convey with his facial expression was deficient performance because the testimony was excluded from evidence and to ask for a curative instruction could have emphasized the testimony. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Exhaustive investigation. —

    Petitioner’s application for a writ of habeas corpus was dismissed because he failed to satisfy the “performance” and “prejudice” prong of the two-part test enunciated in Strickland; counsel conducted an exhaustive investigation and spoke with the witnesses upon whose affidavits petitioner relied. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Petitioner’s application for a writ of habeas corpus was dismissed because he failed to satisfy the “performance” and “prejudice” prong of the two-part test enunciated in Strickland; petitioner failed to state how counsel could possibly have reconciled the testimony of all the various witnesses, who had each known and spent time with petitioner at different periods of his life, and who each had different experiences with and perceptions of him. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Petitioner’s application for a writ of habeas corpus was dismissed because he failed to satisfy the “performance” and “prejudice” prong of the two-part test enunciated in Strickland; petitioner did not provide the police report, or affidavits from the police officers or from a witness to demonstrate the testimony they would have provided had counsel recalled them, and he proffered no evidence to support his claim that counsel’s failure to impeach the witness was the result of inadvertence. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Ineffective assistance of counsel not established. —

    Petitioner’s application for a writ of habeas corpus was dismissed because he failed to satisfy the “performance” and “prejudice” prong of the two-part test enunciated in Strickland; petitioner failed to establish that more comprehensive cross-examination of a police officer would have resulted in the officer changing his unequivocal, uncontradicted testimony. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Exhaustion of remedies where parole date miscalculated. —

    Although a Virginia prisoner in United States District Court claimed a denial of equal protection and due process on the ground that the Virginia Parole Board miscalculated his mandatory parole release date, this action was properly one in habeas corpus, requiring exhaustion of state remedies, where the prisoner sought declaratory relief to compel his release as well as punitive and compensatory damages, notwithstanding the fact that the prisoner styled his action as one under the Civil Rights Act. Derrow v. Shields, 482 F. Supp. 1144, 1980 U.S. Dist. LEXIS 10760 (W.D. Va. 1980).

    After-discovered perjury of government witness. —

    Such a claim may support a timely motion for a new trial, but unless the commonwealth knew of the perjury, or the court prevented effective cross-examination of the witness, no denial of due process has occurred and no basis for habeas relief exists. Fitzgerald v. Bass, 6 Va. App. 38, 366 S.E.2d 615, 4 Va. Law Rep. 2165, 1988 Va. App. LEXIS 15 (1988), cert. denied, 493 U.S. 945, 110 S. Ct. 354, 107 L. Ed. 2d 342, 1989 U.S. LEXIS 5135 (1989).

    Request for correction of sentence. —

    Where the petitioner sought no appeal from the order denying his correction of sentence motion, to consider petitioner’s request after the time of appeal had expired would allow him to substitute habeas corpus and/or mandamus for the appeal which he failed to pursue. In re Brown, No. 0320-85 (Ct. of Appeals Nov. 22, 1985).

    Revocation of suspended sentence. —

    Defendant lacked standing to raise the issue of the validity of the revocation of a suspended misdemeanor sentence for the first time in a habeas corpus proceeding. The function of a writ of habeas corpus is to inquire into jurisdictional defects amounting to want of legal authority for the detention of a person on whose behalf it is asked. Smith v. Underwood, 1 Va. App. 237, 337 S.E.2d 305, 1985 Va. App. LEXIS 92 (1985).

    Hearing not held where petitioner offered no explanation of previous denial of promise of leniency. —

    The trial court correctly applied the law when it denied and dismissed the habeas petition without ordering a plenary hearing, where the petition alleged an unkept promise of leniency, given to induce his guilty pleas, but petitioner therein failed to offer any reason why he denied having been promised leniency in response to the trial court’s questions as to such promises, and therefore failed to offer any reason why he should be permitted to controvert these statements. Brady v. Garraghty, No. 0126-85 (Ct. of Appeals Oct. 10, 1985).

    Appellate claim of foreign national barred. —

    A reasonably diligent attorney would have discovered the applicability of the Vienna Convention to a foreign national defendant; thus the foreign national defendant’s failure to raise his Vienna Convention claim in state court barred his claim at the appellate level. Breard v. Pruett, 134 F.3d 615, 1998 U.S. App. LEXIS 892 (4th Cir. 1998).

    Petitioner’s application for a writ of habeas corpus was dismissed because he failed to satisfy the “performance” and “prejudice” prong of the two-part test enunciated in Strickland; petitioner’s conditions of confinement would not have provided a viable defense to the murders he committed and would not have mitigated the murders, and thus, counsel was not ineffective for failing to raise frivolous arguments. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Petitioner’s application for a writ of habeas corpus was dismissed because he failed to satisfy the “performance” and “prejudice” prong of the two-part test enunciated in Strickland; petitioner’s experts found that petitioner “met diagnostic criteria for narcissistic personality disorder” or had “narcissistic personality features,” and thus, there was sufficient foundation for the Commonwealth to question the experts regarding narcissistic traits. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Petitioner’s application for a writ of habeas corpus was dismissed because he failed to satisfy the “performance” and “prejudice” prong of the two-part test enunciated in Strickland; trial counsel’s failure to object to the restraints petitioner was made to wear or the stun belt placed on him was not deficient performance because all visible restraints were removed from petitioner prior to the jurors entering the courtroom, and petitioner wore a stun belt that was beneath his clothing. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Petitioner’s application for a writ of habeas corpus was dismissed because he failed to satisfy the “performance” and “prejudice” prong of the two-part test enunciated in Strickland; counsel was not ineffective for failing to raise a frivolous argument that petitioner was justified in shooting the victim because petitioner provided no evidence of any gestures the victim made that would indicate he was reaching for a firearm before he was shot. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Petitioner’s application for a writ of habeas corpus was dismissed because he failed to satisfy the “performance” and “prejudice” prong of the two-part test enunciated in Strickland; petitioner was entitled to, and received, access to competent mental health experts to conduct an appropriate examination and assist in evaluation, preparation, and presentation of his defense. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Relief denied. —

    Inmate was denied habeas relief where he: (1) failed to show that the bailiff provided ex parte answers to jurors’ questions about the court’s sentencing instruction, (2) failed to show that a juror who indicated in a single statement that death was an appropriate punishment for murder was improperly seated as a review of the juror’s voir dire answers showed no bias in support of the death penalty, (3) failed to prove that the presence of the bible in the jury room improperly influenced the jury’s sentencing decision, and (4) failed to prove that he received ineffective assistance of counsel in the sentencing phase as, inter alia, counsel’s strategic decisions were supported by the evidence and the inmate failed to show prejudice due to counsel’s alleged errors. Lenz v. Warden of the Sussex I State Prison, 267 Va. 318 , 593 S.E.2d 292, 2004 Va. LEXIS 46, cert. denied, 542 U.S. 953, 124 S. Ct. 2933, 159 L. Ed. 2d 836, 2004 U.S. LEXIS 4771 (2004).

    State supreme court dismissed the petition for writ of habeas corpus filed by petitioner, who was convicted of two counts of capital murder for hire and who was sentenced to death following petitioner’s guilty plea to seven felonies; while petitioner’s primary claim was that petitioner received ineffective assistance of counsel because counsel allegedly failed to conduct an adequate investigation of mitigation evidence and counsel failed to present such mitigation evidence, petitioner could not show that petitioner was prejudiced by the alleged failures, including the failure to present evidence of mental retardation when there was no evidence that petitioner was mentally retarded. Lewis v. Warden of the Fluvanna Corr. Ctr., 274 Va. 93 , 645 S.E.2d 492, 2007 Va. LEXIS 95 (2007).

    Petitioner’s application for the issuance of a writ of habeas corpus was denied because petitioner did not bear his burden of demonstrating that he was prejudiced when his counsel failed to appeal the validity of a traffic stop; a police officer had a reasonable articulable suspicion to stop petitioner, which ripened into probable cause to arrest and search, and even if petitioner’s counsel had properly appealed the issue of the validity of the stop, the result of the appeal would have been the same. Williams v. Warden of the Sussex I State Prison, 278 Va. 641 , 685 S.E.2d 674, 2009 Va. LEXIS 110 (2009).

    Inmate’s petition for a writ of habeas corpus was dismissed because, while the inmate claimed that he had received ineffective assistance of counsel, he failed to demonstrate a reasonable probability that, but for the alleged errors, the result of the proceeding would have been different; the inmate failed to provide affidavits or other evidence to show what additional trial strategies and defenses were available if counsel had met with him more often and engaged in additional trial preparation, what additional investigation of the charges would have revealed, what testimony witnesses would have provided if counsel had interviewed and subpoenaed them to testify at trial, what factors informed his decision to have a bench trial, and what additional information from his counsel would have prompted him to request a jury trial, what exculpatory evidence counsel should have introduced at trial, or what further evidence and/or defenses could have been developed if counsel had requested a continuance of the trial, and how any miscommunication about whether he wished to change his plea affected the trial court’s finding of guilt on the charges. Furthermore, the victim’s account of the inmate’s entering his house the second time without permission, taking a blank check out of the checkbook, and leaving with it was uncontradicted, and the inmate admitted to these actions. Sigmon v. Dir. of the Dep't of Corr., 285 Va. 526 , 739 S.E.2d 905, 2013 Va. LEXIS 53 (2013).

    Petitioner’s application for a writ of habeas corpus was dismissed because he failed to satisfy the “performance” and “prejudice” prong of the two-part test enunciated in Strickland; petitioner’s alleged fear that his return to county jail could result in his death within a few months from some unnamed danger did not create a valid claim of self-defense, nor was it reasonably probable that the jury would have perceived his alleged fear as mitigating evidence for his murder of two innocent people. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Petitioner’s application for a writ of habeas corpus was dismissed because he failed to show that he was denied the right to an impartial jury; petitioner did not demonstrate that a juror failed to answer honestly a material question during voir dire. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

    Inmate was not entitled to habeas relief based on his counsel’s ineffectiveness in allegedly failing to communicate the prosecution’s plea offer, as he offered no evidence that the offer was within the boundaries of acceptable plea agreements and sentences in the jurisdiction, or that the trial judge had ever accepted similar plea agreements and sentences in other cases involving similar facts and charges. Laster v. Russell, 286 Va. 17 , 743 S.E.2d 272, 2013 Va. LEXIS 74 (2013).

    Claims properly dismissed with prejudice. —

    Inmate filed a habeas petition under subsection B of § 8.01-654 , alleging that his counsel was ineffective for failing to file a timely appeal. The fact that the habeas court granted the inmate leave to file a belated appeal did not oblige that court to dismiss the other claims without prejudice, as it determined that they were procedurally deficient or lacked merit. Davis v. Johnson, 274 Va. 649 , 652 S.E.2d 114, 2007 Va. LEXIS 126 (2007).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Nature and purpose of writ. —

    The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner. The only issue which it presents is whether or not the prisoner is restrained of his liberty by due process of law. Lacey v. Palmer, 93 Va. 159 , 24 S.E. 930 , 1896 Va. LEXIS 62 (1896).

    Habeas corpus is a writ of inquiry granted to determine whether a person is detained without lawful authority. Peyton v. Williams, 206 Va. 595 , 145 S.E.2d 147, 1965 Va. LEXIS 240 (1965).

    Void proceedings are reviewable. —

    Where the proceedings, whether civil or criminal, under which a party is detained in custody are void the same are reviewable on habeas corpus, and the party may be discharged. Ex parte Rollins, 80 Va. 314 , 1885 Va. LEXIS 69 (1885); Ex parte Marx, 86 Va. 40 , 9 S.E. 475 , 1889 Va. LEXIS 6 (1889); Ex parte Henry, 14 Va. L. Reg. 596 (1908).

    But not merely voidable judgments. —

    It will not lie to attack a judgment of conviction that is merely voidable by reason of error of law or of fact, omissions or other irregularities. Smyth v. Bunch, 202 Va. 126 , 116 S.E.2d 33, 1960 Va. LEXIS 199 (1960), cert. denied, 364 U.S. 935, 81 S. Ct. 382, 5 L. Ed. 2d 366, 1961 U.S. LEXIS 1900 (1961).

    Habeas cannot be used to perform function of appeal or writ of error. —

    Habeas corpus is a writ of inquiry granted to determine whether a person is illegally detained. It cannot be used to perform the function of an appeal or writ of error, to review errors, or to modify or revise a judgment of conviction pronounced by a court of competent jurisdiction. Smyth v. Midgett, 199 Va. 727 , 101 S.E.2d 575, 1958 Va. LEXIS 118 (1958).

    The writ of habeas corpus does not lie as a substitute for an appeal or writ of error. Council v. Smyth, 201 Va. 135 , 109 S.E.2d 116, 1959 Va. LEXIS 203 (1959).

    Section refers to detention in Virginia. —

    Habeas corpus is available in Virginia whenever a person is “detained without lawful authority.” This obviously refers to detention in the State of Virginia. United States ex rel. Smith v. Jackson, 234 F.2d 742, 1956 U.S. App. LEXIS 3776 (2d Cir. 1956).

    Section 8.01-677 does not supplant this section. —

    Section 8.01-677 is in simple, clear and unambiguous language, and the Supreme Court reads it to mean what it says. It does not provide that it may be used to obtain a writ or error, or an appeal, or for any purpose other than to correct a “clerical error or error in fact.” It does not supplant the writ of habeas corpus. If its provisions should be widened, the enlargement should be effected by the legislature. Blowe v. Peyton, 208 Va. 68 , 155 S.E.2d 351, 1967 Va. LEXIS 185 (1967).

    The doctrine of res judicata does not limit the availability of habeas corpus in Virginia. Ferguson v. Cox, 464 F.2d 461, 1972 U.S. App. LEXIS 8211 (4th Cir. 1972).

    Discharge is relief provided. —

    The Virginia habeas corpus statutes are designed to provide relief in the form of discharge from the person in whose custody a petitioner is detained without lawful authority. Morgan v. Juvenile & Domestic Relations Court, 491 F.2d 456, 1974 U.S. App. LEXIS 10322 (4th Cir. 1974).

    Providing for custody of person released. —

    The proper office of the writ of habeas corpus is to release from illegal restraint. Where the party is of years of discretion and sui juris, nothing more is done than to discharge him. But if he be not of an age to determine for himself, the court or judge must decide for him, and make an order for his being placed in the proper custody, and to enable it to do so, must determine to whom the right to the custody belongs. Armstrong v. Stone, 50 Va. (9 Gratt.) 102, 1852 Va. LEXIS 52 (1852).

    Allegations and prima facie showing. —

    This section gives to one in confinement the right to the writ, if he alleges facts which show that he is illegally restrained of his liberty and supports his allegations by affidavits or other evidence. Such a prima facie showing entitles the petitioner to a hearing of his complaint. The court is not confined to a consideration of affidavits if an issue of fact arises but is free to receive the evidence of witnesses in open court and to make its determination as in any other controverted case. Davis v. Smyth, 155 F.2d 3, 1946 U.S. App. LEXIS 2159 (4th Cir. 1946).

    Broad conclusory allegations are not sufficient for habeas consideration. —

    A habeas corpus petition must allege facts and mere conclusions or opinions of the petitioner will not suffice to make out a case. Kelly v. Cox, 353 F. Supp. 1050, 1972 U.S. Dist. LEXIS 10627 (W.D. Va. 1972).

    Right to counsel in habeas corpus proceedings. —

    It is generally held that the constitutional requirement that a defendant in a criminal prosecution is entitled to the assistance of counsel does not apply to a habeas corpus proceeding because it is a civil and not a criminal proceeding. Darnell v. Peyton, 208 Va. 675 , 160 S.E.2d 749, 1968 Va. LEXIS 165 (1968).

    The rule adopted by the majority of the courts is that while a petitioner is not in every instance entitled to the assistance of counsel in the prosecution of his petition for a writ of habeas corpus, the nature and contents of the relief sought and the basis of the error or defect charged may require that such appointment be made. If it appears from a reading of the petition that the points raised are frivolous and plainly do not justify a judicial inquiry, as is frequently the case, the appointment of counsel is not required. On the other hand, where a petition presents a triable issue of fact the clear presentation of which requires an ability to organize factual data or to call witnesses and elicit testimony in a logical fashion, it is much the better practice to assign counsel. Darnell v. Peyton, 208 Va. 675 , 160 S.E.2d 749, 1968 Va. LEXIS 165 (1968).

    The petition for a writ of habeas corpus to obtain possession of a child may be in the name of the infant by his next friend, or in the name of the person claiming possession. And where it is the mother of the child who is claiming the possession, and she is a married woman, it may be in the names of her husband and herself. Armstrong v. Stone, 50 Va. (9 Gratt.) 102, 1852 Va. LEXIS 52 (1852).

    Under this section a person adjudged to be insane and committed to an institution under former § 37.1-67 (see now § 37.2-844 ) may apply for a writ of habeas corpus to contest the validity of such statutes and the procedure thereunder. But the federal district court refused to grant a writ of habeas corpus where petitioner had failed to exhaust his remedies in the state court. Hall v. Verdel, 40 F. Supp. 941, 1941 U.S. Dist. LEXIS 2814 (D. Va. 1941).

    B.Petitioners Held Under Criminal Process.

    Application of subsection B. —

    Subsection B applies only to those cases involving petitioners held under criminal process. The authority of any circuit court, or any judge thereof, to issue writs of habeas corpus in child custody cases, and to make such writs returnable to any circuit court, or the judges thereof, is left unimpaired. Walker v. Brooks, 203 Va. 417 , 124 S.E.2d 195, 1962 Va. LEXIS 161 (1962).

    Not applicable where petitioner no longer detained. —

    Where a petitioner is no longer detained and there is no custody from which to discharge him, the state court is without jurisdiction to entertain the case. Morgan v. Juvenile & Domestic Relations Court, 491 F.2d 456, 1974 U.S. App. LEXIS 10322 (4th Cir. 1974).

    Nor to determine validity of sentence fully served. —

    While subsection B extends jurisdiction to permit a petitioner to challenge the validity of a sentence to be served subsequently, it does not extend jurisdiction to the courts of Virginia to permit a determination of the validity of a sentence fully served before the proceeding for a writ of habeas corpus is instituted. Moore v. Peyton, 211 Va. 119 , 176 S.E.2d 427, 1970 Va. LEXIS 221 (1970).

    There is no available state procedure to attack a conviction when the sentence complained of has been fully served and a judgment for the petitioner could not affect the lawfulness of his immediate custody, nor grant him relief from that detention. Eldridge v. Peyton, 295 F. Supp. 621, 1968 U.S. Dist. LEXIS 7684 (W.D. Va. 1968).

    Time served under completed void sentence may not be credited against present valid sentence. —

    A court does not have jurisdiction to determine the validity of a sentence under which the prisoner is not being detained. It follows that where a prisoner is being detained under a valid sentence he is not entitled to credit for time served on a void sentence fully served before the proceeding for writ of habeas corpus is instituted. Smyth v. Midgett, 199 Va. 727 , 101 S.E.2d 575, 1958 Va. LEXIS 118 (1958).

    The jurisdiction of the court upon a petition for habeas corpus was limited to a consideration of the validity of the conviction under which the petitioner was being detained at the time of the hearing. The court had no jurisdiction to review the validity of a conviction under which the petitioner had already served the sentence imposed prior to the institution of the proceeding, or to order the time served under the prior conviction to be credited against a valid sentence to be served by him pursuant to a conviction in a different court, at a different time, upon a charge involving a wholly unrelated offense. Smyth v. Holland, 199 Va. 92 , 97 S.E.2d 745, 1957 Va. LEXIS 167 (1957), cert. denied, 357 U.S. 944, 78 S. Ct. 1394, 2 L. Ed. 2d 1556, 1958 U.S. LEXIS 747 (1958).

    But prisoner presently detained under void sentence is entitled to credit against valid sentence. —

    If a prisoner is being detained under a void sentence, he is entitled to credit for the time served under such sentence on a valid sentence, or sentences entered against him prior to the time he began serving the void sentence. Smyth v. Midgett, 199 Va. 727 , 101 S.E.2d 575, 1958 Va. LEXIS 118 (1958).

    And one detained as repeater may attack validity of sentence he has completely served. —

    One may attack in a habeas corpus proceeding the validity of a sentence he has completely served when he is detained under former § 53-296 as a repeater. Smyth v. Midgett, 199 Va. 727 , 101 S.E.2d 575, 1958 Va. LEXIS 118 (1958).

    The usual rule limiting Virginia habeas corpus to the term of the sentence of the conviction under attack does not apply in this instance, where the prisoner has finished serving his sentence for burglary but is still in state custody because of an additional sentence under former § 53-296, because a recidivist sentence does not constitute a separate conviction. Ferguson v. Cox, 464 F.2d 461, 1972 U.S. App. LEXIS 8211 (4th Cir. 1972).

    Exhaustion of state remedies before seeking federal habeas corpus. —

    One seeking habeas relief must initially allow the highest state tribunal to consider each of his allegations before a federal court will rule on the merits of his petition. Alley v. Paderick, 373 F. Supp. 918, 1974 U.S. Dist. LEXIS 12221 (W.D. Va. 1974).

    A petitioner is required to exhaust his state remedies as a prerequisite to seeking habeas corpus in a federal court to avoid extradition. Tickle v. Summers, 270 F.2d 848, 1959 U.S. App. LEXIS 3303 (4th Cir. 1959).

    Where the well-pleaded allegations of the petition are not denied they must be accepted as true. Morris v. Smyth, 202 Va. 832 , 120 S.E.2d 465, 1961 Va. LEXIS 185 (1961), cert. denied, 371 U.S. 849, 83 S. Ct. 83, 9 L. Ed. 2d 83, 1962 U.S. LEXIS 790 (1962).

    Requirement that petition enumerate previous applications is not jurisdictional. —

    The failure of the petition for habeas corpus to state that there had been no previous applications of like nature did not warrant the lower court in dismissing the petition. This requirement is not jurisdictional. Morris v. Smyth, 202 Va. 832 , 120 S.E.2d 465, 1961 Va. LEXIS 185 (1961), cert. denied, 371 U.S. 849, 83 S. Ct. 83, 9 L. Ed. 2d 83, 1962 U.S. LEXIS 790 (1962).

    Judicial inquiry not required where allegations frivolous. —

    In some cases the allegations of a petition for habeas corpus are patently frivolous and plainly do not justify judicial inquiry. Arey v. Peyton, 209 Va. 370 , 164 S.E.2d 691, 1968 Va. LEXIS 242 (1968); Younger v. Cox, 323 F. Supp. 412, 1971 U.S. Dist. LEXIS 14358 (W.D. Va. 1971).

    Or, in other cases, the merits of the allegations may be determined by reference to records of previous judicial proceedings. Arey v. Peyton, 209 Va. 370 , 164 S.E.2d 691, 1968 Va. LEXIS 242 (1968).

    And, in such cases, a full evidentiary hearing may not be required. Arey v. Peyton, 209 Va. 370 , 164 S.E.2d 691, 1968 Va. LEXIS 242 (1968); Younger v. Cox, 323 F. Supp. 412, 1971 U.S. Dist. LEXIS 14358 (W.D. Va. 1971).

    Refusal to allow petitioner’s evidence where trial records sufficient to refute petition. —

    If the records of a petitioner’s criminal trials contain matter sufficient to refute the essential factual allegations of his habeas corpus petition, the court does not err in not allowing him to present evidence concerning those allegations at the habeas corpus proceeding. Younger v. Cox, 323 F. Supp. 412, 1971 U.S. Dist. LEXIS 14358 (W.D. Va. 1971).

    Person in custody of federal authorities. —

    If a person is in the actual custody of the United States for a violation of its laws, no state can by habeas corpus, or any other process, take such person from the custody of the federal tribunal or officer. So, on the other hand, a person in custody under the process or authority of a state, is, by express enactment, beyond the reach of the federal courts or judges. Judiciary act, § 14; act March 2, 1833, § 7; 4 Stat. at Large, 634; 28 U.S.C.A. § 453. Bowling v. Commonwealth, 123 Va. 340 , 96 S.E. 739 , 1918 Va. LEXIS 34 (1918).

    Defective indictment. —

    The underlying question in habeas corpus proceedings where the sufficiency of an indictment is challenged is directed to whether the indictment is so fatally defective and void that the court in which the petitioner was convicted did not have jurisdiction of the person and crime charged and to whether the court had jurisdiction to render the particular judgment. If the court had jurisdiction of the person and the crime charged, and if the punishment imposed is of the character prescribed by law, a writ of habeas corpus does not lie to release the prisoner from custody for mere irregularities or insufficiency of an indictment no matter how vulnerable to direct attack on motion to quash. Council v. Smyth, 201 Va. 135 , 109 S.E.2d 116, 1959 Va. LEXIS 203 (1959).

    Sentence for murder under indictment for manslaughter held not subject to attack. —

    Where it was clear from the record that defendant, the attorneys and the trial court regarded the trial as one for murder, even though the indictment was for manslaughter only, there was no jurisdictional flaw in the proceeding, and therefore defendant could not successfully utilize habeas corpus to attack the life sentence which he received. Cunningham v. Hayes, 204 Va. 851 , 134 S.E.2d 271, 1964 Va. LEXIS 130, cert. denied, 376 U.S. 973, 84 S. Ct. 1140, 12 L. Ed. 2d 86, 1964 U.S. LEXIS 1527 (1964).

    Defective verdict. —

    Where in a murder case the jury in its verdict used the word “recommend” rather than a more proper term such as “fix” with regard to the ascertainment of punishment, the defect was of the kind that could have been amended before the jury was discharged, and the judgment entered on the verdict was not void and could not be successfully attacked by means of habeas corpus. Smyth v. Bunch, 202 Va. 126 , 116 S.E.2d 33, 1960 Va. LEXIS 199 (1960), cert. denied, 364 U.S. 935, 81 S. Ct. 382, 5 L. Ed. 2d 366, 1961 U.S. LEXIS 1900 (1961).

    Lack of effective representation by counsel. —

    A federal court cannot order the release of a state prisoner, grounded upon the lack of effective counsel in the state court proceeding, unless the incompetence and ineffectiveness of the attorney is so obvious that it becomes the duty of the trial judge or prosecutor (both state officers) to intervene and protect the rights of the accused. An appropriate exception to the general rule exists where an attorney, furnished to an indigent defendant, candidly admits that his conscience prevented him from effectively representing his client according to the customary standards prescribed by attorneys and the courts, and this was not apparent to the trial judge or prosecutor. Johns v. Smyth, 176 F. Supp. 949, 1959 U.S. Dist. LEXIS 2892 (D. Va. 1959), limited, United States ex rel. Wilkins v. Banmiller, 205 F. Supp. 123, 1962 U.S. Dist. LEXIS 3818 (E.D. Pa. 1962).

    To support a claim of inadequate representation, habeas corpus petitioner must show that his trial was nothing more than a farce or a sham. Mistakes in trial tactics during a trial do not deprive an individual of his constitutional rights even when it concerns whether or not the defendant should plead guilty. Davis v. Slayton, 353 F. Supp. 571, 1973 U.S. Dist. LEXIS 15091 (W.D. Va. 1973).

    Hearing held not required where petitioner utterly fails to substantiate allegations. —

    Where defendant has pleaded guilty with full knowledge of the nature and the consequences of his action and he later seeks to cast responsibility for his predicament on his attorney, no hearing on petition for writ of habeas corpus is required where the record shows that defendant was completely represented and he utterly fails to substantiate his general allegations. Brown v. Smyth, 271 F.2d 227, 1959 U.S. App. LEXIS 3253 (4th Cir. 1959).

    Mere allegation that counsel suggested to defendant that if he stood trial he was in jeopardy of a death sentence does not show such coercion as to make the plea of guilty an involuntary act, requiring a hearing upon a petition for writ of habeas corpus. Brown v. Smyth, 271 F.2d 227, 1959 U.S. App. LEXIS 3253 (4th Cir. 1959).

    Where counsel privately retained by petitioner. —

    An individual cannot claim in a habeas corpus petition that he was denied his right to effective counsel where counsel was privately retained by the petitioner and the situation, if true, was itself created by the petitioner. Davis v. Slayton, 353 F. Supp. 571, 1973 U.S. Dist. LEXIS 15091 (W.D. Va. 1973).

    CIRCUIT COURT OPINIONS

    Subject matter jurisdiction. —

    Trial court had subject matter jurisdiction to consider the petition for writ of habeas corpus filed by the petitioner, as the petition was filed while the petitioner was still in the custody of the Department of Corrections, despite the fact that he was later released. Haley v. Angelone, 60 Va. Cir. 429, 2002 Va. Cir. LEXIS 414 (Richmond Dec. 30, 2002).

    Amendment to § 8.01-654 B 2 has no retroactive effect. —

    Amendment to subdivision B 2 of § 8.01-654 , providing that when the sole allegation in the initial habeas petition is that the defendant was deprived of the right to appeal a conviction, the defendant is not obliged to set forth all of the defendant’s other claims in that petition, does not have any retroactive effect. Therefore, as defendant’s petition was filed under the former version of subdivision B 2 of § 8.01-654 , the defendant’s failure to raise in the original habeas petition those claims the defendant reasonably knew about or could have discovered precluded the court from considering them in the defendant’s second petition. Henderson v. Johnson, 75 Va. Cir. 479, 2007 Va. Cir. LEXIS 309 (Campbell County Oct. 19, 2007).

    Factors considered in determining whether to conduct hearing. —

    If, after full consideration of: (1) the factual allegations set out in petition for writ of habeas corpus and all reasonable inferences that flow therefrom, (2) the record of the underlying criminal proceedings, and (3) any affidavits submitted by the parties, the court determines that reasonable minds could differ as to whether the habeas petitioner is entitled to relief, the court should conduct an evidentiary hearing; if reasonable minds could not differ, then no plenary hearing should be held. Bonhom v. Angelone, 58 Va. Cir. 358, 2002 Va. Cir. LEXIS 44 (Fairfax County Mar. 19, 2002).

    Dismissed without hearing. —

    An inmate’s habeas petition was dismissed without a hearing, because he waived ineffective assistance of counsel, defective indictment, and other claims by his Alford plea, some claims had previously been rejected, others could have been raised on appeal but were not, and others were not cognizable in a habeas proceeding because they were not jurisdictional defects. Larios v. Arlington County Det. Facility, 2004 Va. Cir. LEXIS 22 (Fairfax County Jan. 13, 2004).

    Court denied petitioner’s request for an evidentiary hearing and dismissed his petition for habeas corpus with prejudice because petitioner’s allegations of illegality could be fully determined on the basis of the record. Hudson v. Dir. of the Dep't of Corr., 67 Va. Cir. 319, 2005 Va. Cir. LEXIS 147 (Clarke County May 16, 2005).

    Hearing required. —

    Plenary hearing was required on a motion to dismiss habeas corpus petition because conflicting affidavits were presented on whether petitioner’s trial counsel rejected a proffered plea bargain to manslaughter, with a 10-year maximum sentence, where defendant was ultimately convicted for second-degree murder and sentenced to 48 years in prison. Since the court could not determine the merits of the habeas petition on the affidavits and record alone, a plenary hearing was required. Walker v. Young, 2004 Va. Cir. LEXIS 210 (Roanoke Aug. 6, 2004).

    Alien who pled guilty to a misdemeanor marijuana offense was entitled to an evidentiary hearing on his petition for habeas corpus because the alien alleged, and counsel conceded, that trial counsel misadvised the alien about the immigration consequences of his guilty plea under 8 U.S.C.S. § 1227(a)(2)(A)(iii), a part of the Immigration and Naturalization Act, 8 U.S.C.S. § 1101 et seq. Ibrahim v. Superintendent of the Rappahannock Reg'l Jail, 82 Va. Cir. 353, 2011 Va. Cir. LEXIS 56 (Fairfax County Mar. 17, 2011).

    When evidentiary hearing not required. —

    Evidentiary hearing was not required under subdivision B 4 of § 8.01-654 in petitioner’s proceeding for a writ of habeas corpus because the issues regarding petitioner’s claims of ineffective assistance of counsel could be determined based on the written record. Ejjamai v. Warden, 2008 Va. Cir. LEXIS 140 (Greene County Oct. 28, 2008).

    Plenary hearing was not necessary under subdivision B 4 of § 8.01-654 in a habeas proceeding as all claims and evidence were derived from the transcripts and the record of the underlying criminal case. Bah v. Johnson, 79 Va. Cir. 758, 2008 Va. Cir. LEXIS 213 (Hanover County Oct. 31, 2008).

    Evidentiary hearing not required. —

    Circuit court found that an evidentiary hearing was not required on defendant’s petition for a writ of habeas corpus because all issues raised by the petition were able to be fully determined on the basis of recorded matters. The court was able to consider, among other things, the transcript of the jury trial, relevant trial exhibits, and the affidavit by an attorney. Little v. Clarke, 2022 Va. Cir. LEXIS 4 (Norfolk Jan. 28, 2022).

    Discovery. —

    In proceedings on an inmate’s habeas corpus petition, a warden was entitled to discover information in the possession of the inmate’s defense counsel because the inmate waived any attorney-client privilege, under subdivision B 6 of § 8.01-654 , by alleging ineffective assistance of counsel. Porter v. Warden of the Sussex I State Prison, 2010 Va. Cir. LEXIS 204 (Norfolk Dec. 20, 2010).

    Successive claims. —

    Inmate was not entitled to a writ of habeas corpus because claims regarding defense counsel’s alleged conflict and his ineffectiveness as to not properly preparing for trial were barred as successive claims under subdivision B 2 of § 8.01-654 as the inmate could present claims dismissed without prejudice from a prior petition but not new claims. Bowman v. Johnson, 2006 Va. Cir. LEXIS 329 (Stafford County Aug. 21, 2006).

    Untimely filing of habeas application. —

    Application for writ of habeas corpus, which was not filed within two years of entry of final judgment sentencing petitioner to prison, but which was filed within two years of entry of amended order correcting two scrivener’s errors in final judgment, was not timely filed, as subdivision A 2 of § 8.01-654 required filing within two years of final judgment and the amended order was not a final judgment. Wilkins v. Powell, 56 Va. Cir. 27, 2001 Va. Cir. LEXIS 439 (Clarke County Jan. 30, 2001).

    Petition for writ of habeas corpus filed by petitioner had to be dismissed, as the petition was filed more than two years after petitioner was sentenced, and, thus, was time-barred due to the two-year limitations period in subdivision A 2 of § 8.01-654 . Haley v. Angelone, 60 Va. Cir. 429, 2002 Va. Cir. LEXIS 414 (Richmond Dec. 30, 2002).

    Inmate’s petition for a writ of habeas corpus was untimely under the statute of limitations, subdivision A 2 of § 8.01-654 , because under subdivision A 2 the inmate had until September 24, 2001, to file his petition, but the inmate filed his petition on August 3, 2010. Williams v. Fahey, 82 Va. Cir. 178, 2011 Va. Cir. LEXIS 159 (Norfolk Feb. 2, 2011).

    Inmate’s petition for a writ of habeas corpus was untimely under the statute of limitations, subdivision A 2 of § 8.01-654 , because the inmate’s allegation that a detective knew that he was innocent did not constitute a new habeas corpus claim in the absence of some other misconduct; there was nothing alleged in the petition that had not been previously alleged or known years ago. Williams v. Fahey, 82 Va. Cir. 178, 2011 Va. Cir. LEXIS 159 (Norfolk Feb. 2, 2011).

    Dismissal of a prisoner’s petition for a writ of habeas corpus was appropriate because subdivision A 2 of § 8.01-654 was not a suspension act, and the prisoner’s use of the writ was not a use recognized when Virginia adopted the Suspension Clause of Va. Const. art. I, § 9. Hicks v. Clarke, 87 Va. Cir. 208, 2013 Va. Cir. LEXIS 170 (Norfolk Oct. 23, 2013), aff'd, 289 Va. 288 , 768 S.E.2d 415, 2015 Va. LEXIS 17 (2015).

    Writ of coram vobis no substitute for habeas corpus. —

    Inmate’s petition for a writ of coram vobis was denied, as such relief did not lie where his claim of ineffective assistance of trial counsel could have been corrected by other statutory proceedings, including habeas corpus, and when the inmate sought habeas corpus on said grounds, his petition was dismissed as time-barred. Smith v. Commonwealth, 62 Va. Cir. 68, 2003 Va. Cir. LEXIS 81 (Fairfax County May 9, 2003).

    Lack of effective assistance of counsel. —

    Inmate was not entitled to habeas relief based on his claim that trial counsel’s performance was ineffective and inadequate as to trial preparation and cross-examination of the child-victim; counsel acknowledged that the victim’s statements contained some inconsistencies, but stated his desire not to appear to “beat up” a sympathetic victim before the jury and the need to avoid allowing the child to bring out the devastating corroborating medical evidence as the foundation for his strategic decision to pursue the alibi defense. Carpitcher v. Hinkle, 62 Va. Cir. 391, 2003 Va. Cir. LEXIS 277 (Roanoke County Aug. 11, 2003).

    Court determined the merits of an inmate’s habeas petition without an evidentiary hearing pursuant to § 8.01-654 because his pleadings failed to make out a prima facie case of ineffective assistance of counsel on any of his asserted grounds and the facts alleged were insufficient to overcome the strong presumption that his conduct fell within the wide range of reasonable professional assistance. Ames v. Johnson, 2005 Va. Cir. LEXIS 20 (Roanoke Mar. 28, 2005).

    Petition for writ of habeas corpus was granted and petitioner’s conviction of petit larceny was vacated; regardless of whether jail time was suspended or imposed, the amount exceeded the jail threshold for invoking the petty offense exception, counsel did not advise petitioner of the likelihood of any adverse immigration consequences, and petitioner would not have accepted the plea offer if properly advised. Jurado-Alcantara v. Kinkaid, 103 Va. Cir. 278, 2019 Va. Cir. LEXIS 614 (Fairfax County Oct. 24, 2019).

    Trial counsel not ineffective. —

    Defendant’s petition for a writ of habeas corpus was denied because trial counsel was not ineffective for failing to move to suppress defendant’s statements to a detective; the detective properly advised defendant of his rights under Miranda, defendant understood those rights, and defendant waived his right to remain silent before speaking to the detective. Allen v. Johnson, 2012 Va. Cir. LEXIS 72 (Fairfax County July 20, 2012).

    Defendant’s petition for a writ of habeas corpus was denied because trial counsel was not ineffective for failing to request a jury instruction on the issue of the voluntariness of his statements to a detective; defendant failed to show any likelihood that an instruction would have provided different results at the trial. Allen v. Johnson, 2012 Va. Cir. LEXIS 72 (Fairfax County July 20, 2012).

    Inmate was not entitled to habeas relief based on an allegation that trial counsel provided ineffective assistance by advising the inmate not to accept a plea offer because (1) counsel credibly testified counsel advised the inmate to accept the offer, and contrary testimony of the inmate and the inmate’s witnesses was not credible, as counsel signed the plea agreement and advised the inmate of the negative consequences of rejecting the agreement, (2) the inmate showed no prejudice, as the inmate stated the inmate wanted to exercise the inmate’s right to go to trial, and (3) there was a reasonable probability the plea agreement would have been accepted. Jones v. Director-Greene Cty. Circuit Court, 101 Va. Cir. 334, 2019 Va. Cir. LEXIS 1202 (Greene County Mar. 21, 2019).

    Mootness. —

    Habeas petition was dismissed as while the habeas court had jurisdiction over the inmate’s ineffective assistance of counsel claim under subdivision B 1 of § 8.01-654 , and the inmate was in custody on a suspended sentence when the petition was filed, the inmate was not presently detained, and the petition was moot as the inmate had served the inmate’s sentence. Kline v. Commonwealth, 2010 Va. Cir. LEXIS 70 (Loudoun County June 21, 2010).

    Where the issue before the court is whether to vacate a guilty plea and consequent conviction, and where the habeas corpus petitioner is not only facing potential incarceration but is actually incarcerated due solely to that guilty plea and consequent conviction, the matter is not deemed moot just because he or she no longer is at risk of additional state incarceration; that he or she is in the custody of federal authorities, rather than state authorities, does not render the matter moot for, under either circumstance, the petitioner’s guilty plea continues to have an immediate and profound impact on the petitioner’s liberty. Ibrahim v. Superintendent, Rappahannock Reg'l Jail, 82 Va. Cir. 353, 2011 Va. Cir. LEXIS 81 (Fairfax County May 16, 2011).

    Petitioner inmate was granted a writ of habeas corpus vacating his state conviction for misdemeanor possession with intent to distribute marijuana in violation of § 18.2-248.1 , which was the sole basis of his incarceration in a federal jail, because the matter remained in actual controversy and was not moot since petitioner was restrained as the result of his Virginia conviction and had an extraordinary stake in the outcome of his petition; the order vacating petitioner’s conviction would directly impact the duration of his current confinement because the Virginia conviction was the sole cause of petitioner’s pending immigration proceedings under 8 U.S.C.S. § 1227(a)(2)(A)(iii). Ibrahim v. Superintendent, Rappahannock Reg'l Jail, 82 Va. Cir. 353, 2011 Va. Cir. LEXIS 81 (Fairfax County May 16, 2011).

    Circuit court had subject matter jurisdiction to hear a habeas petition with regard to petitioner’s felony conviction because petitioner was sentenced to both a period of active incarceration and a period of suspended incarceration, and he remained under that suspended sentence. Roganti v. Clarke, 2017 Va. Cir. LEXIS 86 (Fairfax County May 24, 2017).

    Jurisdiction. —

    Circuit court did not have subject matter jurisdiction to decide a habeas petition regarding petitioner’s misdemeanor convictions because petitioner was not in detention; the terms of active incarceration imposed upon petitioner were to run concurrently with the felony term of active incarceration, and no time was suspended in connection with the misdemeanor convictions. Roganti v. Clarke, 2017 Va. Cir. LEXIS 86 (Fairfax County May 24, 2017).

    Habeas petitioner, who was found guilty of driving while under the influence of alcohol was in custody for jurisdictional purposes of pursuing a habeas corpus claim because the petitioner was within a one year period of court-ordered good behavior and compliance with the Virginia Alcohol Safety Action Program, during which, a suspended sentence in jail could have been imposed. Nino v. Clarke, 102 Va. Cir. 380, 2019 Va. Cir. LEXIS 356 (Fairfax County Aug. 21, 2019).

    Claim of perjury. —

    Fact that there were conflicts in testimony offered by witnesses who testified at defendant’s trial did not show that defendant’s conviction was based on perjured testimony, and the circuit court dismissed defendant’s petition for a writ of habeas corpus. Valentine v. Young, 2003 Va. Cir. LEXIS 69 (Loudoun County Feb. 5, 2003).

    Relief denied. —

    Dismissal of defendant’s petition for a writ of habeas corpus was appropriate because defendant’s false evidence claim pertaining to the Commonwealth of Virginia was procedurally barred and because defendant did not plead a viable ineffective assistance of counsel claim pertaining to the alleged use of false evidence by the Commonwealth. Little v. Clarke, 2022 Va. Cir. LEXIS 4 (Norfolk Jan. 28, 2022).

    OPINIONS OF THE ATTORNEY GENERAL

    Credit given for all time spent in jail awaiting trial, regardless of the jurisdiction. —

    A jail sentence is not tolled during the period when the inmate is temporarily transferred to another jurisdiction for a court appearance. As a result, the outside jurisdiction may not prohibit the detention center from giving the inmate credit for the period of his temporary transfer out of the detention center’s jurisdiction. See opinion of Attorney General to the Honorable Dana Lawhorne, Sheriff, City of Alexandria, 12-090, (6/28/13).

    §§ 8.01-654.1, 8.01-654.2. Repealed by Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 2, effective July 1, 2021.

    Editor’s note.

    Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: “That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 (§ 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia.”

    Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: “That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act for any violation of law.”

    Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice.”

    Former § 8.01-654.1 , pertaining to limitation on consideration of petition filed by prisoner sentenced to death, derived from 1995, c. 503; 1998, c. 199.

    Former § 8.01-654.2, pertaining to presentation of claim of intellectual disability by person sentenced to death before April 29, 2003, derived from 2003, cc. 1031, 1040; 2017, cc. 86, 212.

    Michie’s Jurisprudence.

    For related discussion, see 9A M.J. Habeas Corpus, § 18.

    § 8.01-655. Form and contents of petition filed by prisoner.

    1. Every petition filed by a prisoner seeking a writ of habeas corpus must be filed on the form set forth in subsection B. The failure to use such form and to comply substantially with such form shall entitle the court to which such petition is directed to return such petition to the prisoner pending the use of and substantial compliance with such form. The petitioner shall be responsible for all statements contained in the petition and any false statement contained therein, if the same be knowingly or wilfully made, shall be a ground for prosecution and conviction of perjury as provided for in § 18.2-434 .
    2. Every petition filed by a prisoner seeking a writ of habeas corpus shall be filed on a form to be approved and provided by the office of the Attorney General, the contents of which shall be substantially as follows:

      Click to view

    IN THE COURT Full name and prisoner Case No. number (if any) of (To be supplied by Petitioner the Clerk of the -vs- Court) Name and Title of Respondent PETITION FOR WRIT OF HABEAS CORPUS Instructions—Read Carefully In order for this petition to receive consideration by the Court, it must be legibly handwritten or typewritten, signed by the petitioner and verified before a notary or other officer authorized to administer oaths. It must set forth in concise form the answers to each applicable question. If necessary, petitioner may finish his answer to a particular question on an additional page. Petitioner must make it clear to which question any such continued answer refers. The petitioner may also submit exhibits. Since every petition for habeas corpus must be sworn to under oath, any false statement of a material fact therein may serve as the basis of prosecution and conviction for perjury under . Petitioners should, therefore, exercise care to assure that all answers are true and correct. § 18.2-434 When the petition is completed, the original and two copies (total of three) should be mailed to the clerk of the court. The petitioner shall keep one copy. NOTICE The granting of a writ of habeas corpus does not entitle the petitioner to dismissal of the charges for conviction of which he is being detained, but may gain him no more than a new trial. Place of detention: A. Criminal Trial 1. Name and location of court which imposed the sentence from which you seek relief: 2. The offense or offenses for which sentence was imposed (include indictment number or numbers if known): a. b. c. 3. The date upon which sentence was imposed and the terms of the sentence: a. b. c. 4. Check which plea you made and whether trial by jury: Plea of guilty: . . . . . . .; Plea of not guilty: . . . . . . .; Trial by jury: . . . . . . ; Trial by judge without jury: . . . . . . . 5. The name and address of each attorney, if any, who represented you at your criminal trial: 6. Did you appeal the conviction? 7. If you answered “yes” to 6, state: the result and the date in your appeal or petition for certiorari: a. b. citations of the appellate court opinions or orders: a. b. 8. List the name and address of each attorney, if any, who represented you on your appeal: B. Habeas Corpus 9. Before this petition did you file with respect to this conviction any other petition for habeas corpus in either a State or federal court? 10. If you answered “yes” to 9, list with respect to each petition: the name and location of the court in which each was filed: a. b. the disposition and the date: a. b. the name and address of each attorney, if any, who represented you on your habeas corpus: a. b. 11. Did you appeal from the disposition of your petition for habeas corpus? 12. If you answered “yes” to 11, state: the result and the date of each petition: a. b. citations of court opinions or orders on your habeas corpus petition: a. b. the name and address of each attorney, if any, who represented you on appeal of your habeas corpus: a. b. C. Other Petitions, Motions or Applications 13. List all other petitions, motions or applications filed with any court following a final order of conviction and not set out in A or B. Include the nature of the motion, the name and location of the court, the result, the date, and citations to opinions or orders. Give the name and address of each attorney, if any, who represented you. a. b. c. D. Present Petition 14. State the grounds which make your detention unlawful, including the facts on which you intend to rely: a. b. c. 15. List each ground set forth in 14, which has been presented in any other proceeding: a. b. c. List the proceedings in which each ground was raised: a. b. c. 16. If any ground set forth in 14 has not been presented to a court, list each ground and the reason why it was not: a. b. c. Signature of Petitioner Address of Petitioner STATE OF VIRGINIA CITY/COUNTY OF The petitioner being first duly sworn, says: 1. He signed the foregoing petition; 2. The facts stated in the petition are true to the best of his information and belief. Signature of Petitioner Subscribed and sworn to before me this day of , 20. . . . . . . Notary Public My commission expires: The petition will not be filed without payment of court costs unless the petitioner is entitled to proceed in forma pauperis and has executed the affidavit in forma pauperis. The petitioner who proceeds in forma pauperis shall be furnished, without cost, certified copies of the arrest warrants, indictment and order of his conviction at his criminal trial in order to comply with the instructions of this petition. AFFIDAVIT IN FORMA PAUPERIS STATE OF VIRGINIA CITY/COUNTY OF The petitioner being duly sworn, says: 1. He is unable to pay the costs of this action or give security therefor; 2. His assets amount to a total of $ Signature of Petitioner Subscribed and sworn to before me this day of , 20 Notary Public My commission expires:

    History. Code 1950, § 8-596.1; 1968, c. 359; 1977, c. 617.

    REVISERS’ NOTE

    Section 8.01-655 changes former § 8-596.1 by adding the last sentence preceding “Affidavit in Forma Pauperis.” This addition represents a codification of McCoy v. Lankford, 210 Va. 264 , 170 S.E.2d 11 (1969).

    Cross references.

    As to Supreme Court of Virginia requirements for the filing of petitions for writs of habeas corpus, see Rule 5:7, Rules of the Virginia Supreme Court.

    Law Review.

    For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970).

    Michie’s Jurisprudence.

    For related discussion, see 4C M.J. Constitutional Law, §§ 126, 141.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Virginia’s pro se procedures are in no sense futile or arcane. The form contained in this section is a simple one. Mallory v. Smith, 27 F.3d 991, 1994 U.S. App. LEXIS 16356 (4th Cir.), cert. denied, 513 U.S. 1047, 115 S. Ct. 644, 130 L. Ed. 2d 549, 1994 U.S. LEXIS 8716 (1994).

    Federal court won’t determine if state court should have seen additional claims in pleading. —

    Where prisoner identified three grounds in his pleadings under this section, and the Virginia Supreme Court disposed of each of those three grounds in its order, the federal appellate court will not go further and determine whether the Virginia Supreme Court should have seen another claim in his filings. To have the federal court scan the information contained in prisoner’s form for further facts that conceivably might make out other federal claims would send a strong signal to state courts that their procedures will not be respected by their federal counterparts and would also signal litigants that they may ignore state procedures and still expect the federal courts to hear claims that state courts would have had to stitch together from stray references in order to review. Mallory v. Smith, 27 F.3d 991, 1994 U.S. App. LEXIS 16356 (4th Cir.), cert. denied, 513 U.S. 1047, 115 S. Ct. 644, 130 L. Ed. 2d 549, 1994 U.S. LEXIS 8716 (1994).

    Express language of the subsection B of § 8.01-655 filing provision does not contain any terms open for interpretation, and to the extent that Va. Sup. Ct. R. 3:2, 3:3, 3A:25 and 5:5 could be construed as conflicting with § 8.01-655 , the statute will prevail over them. Lahey v. Johnson, 283 Va. 225 , 720 S.E.2d 534, 2012 Va. LEXIS 22 (2012).

    Untimely filing of habeas application. —

    Petitioner’s application for a writ of habeas corpus was time-barred under subdivision A 2 of § 8.01-654 because the filing of the petition was conditioned upon proper payment of the filing fee under subsection B of § 8.01-655 , and petitioner did not complete payment of the filing fee until after the limitations period for filing the petition under subdivision A 2 of § 8.01-654 had expired; the filing provision at issue under subsection B of § 8.01-655 is unequivocal in providing, through plain and unambiguous language, that the petition “will not be filed without payment of court costs” where the petitioner is not seeking in forma pauperis status. Lahey v. Johnson, 283 Va. 225 , 720 S.E.2d 534, 2012 Va. LEXIS 22 (2012).

    Interpretation. —

    Reading §§ 8.01-654 and 8.01-655 in pari materia, the legislature was addressing the same action when it used the term “filed” in each of these related statutes; thus, if a habeas petition does not qualify for filing due to a lack of full payment under subsection B of § 8.01-655 , then, as a matter of law, it is not “filed” for purposes of subdivision A 2 of § 8.01-654 . Lahey v. Johnson, 283 Va. 225 , 720 S.E.2d 534, 2012 Va. LEXIS 22 (2012).

    II.Decisions Under Prior Law.

    Editor’s note.

    The case cited below was decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    Copies of indictment and order of conviction needed. —

    In order to comply with the instructions incorporated in this section and answer the specified questions a petitioner needs copies of the indictment and order of conviction. McCoy v. Lankford, 210 Va. 264 , 170 S.E.2d 11, 1969 Va. LEXIS 230 (1969).

    Court records or transcript need not be appended. —

    This section, which prescribes the form of a petition for a writ of habeas corpus, does not require that court records or transcript be appended to the same. McCoy v. Lankford, 210 Va. 264 , 170 S.E.2d 11, 1969 Va. LEXIS 230 (1969).

    Petitioner was furnished, without cost, certified copies of the arrest warrants, indictment and the order of conviction at his criminal trial. McCoy v. Lankford, 210 Va. 264 , 170 S.E.2d 11, 1969 Va. LEXIS 230 (1969).

    §§ 8.01-656, 8.01-657. Repealed by Acts 2019, cc. 8 and 48, cl. 2.

    Editor’s note.

    Former § 8.01-656 , pertaining to bond with surety that may be required of petitioner, was derived from Code 1950, § 8-597; 1977, c. 617.

    Former § 8.01-657, pertaining to how writ is to be directed and returnable, derived from Code 1950, § 8-598; 1958, c. 215; 1977, c. 617.

    § 8.01-658. When and from whom response required; dismissal of habeas petition without prejudice.

    1. Except as may be provided in the Rules of Supreme Court of Virginia, no response to a petition for a writ of habeas corpus shall be required except upon an order of the court, directed to the person in whose custody the petitioner is detained or on the person having the immediate or potential custody of him, and made returnable as soon as may be before the court ordering the same.
    2. When the petition challenges a criminal conviction or sentence:
      1. If the petitioner is in jail, prison, or other actual physical restraint due to the conviction or sentence he is attacking, the named respondent shall be (i) the Director of the Department of Corrections or the warden or superintendent of the state correctional facility where the petitioner is detained if the petitioner has been committed to, or is subject to transfer to, the Department of Corrections or (ii) the sheriff or superintendent of a local or regional jail facility if the petitioner’s sentence will be served in such local or regional jail facility.
      2. If the petitioner is on probation or parole due to the conviction or sentence he is attacking, the named respondent shall be the probation or parole officer responsible for supervising the applicant or the official in charge of the parole or probation agency.
      3. If a petitioner has a suspended sentence and is not under supervision by a probation or parole officer, the respondent shall be (i) the local sheriff if the judgment of conviction the petitioner challenges has a suspended sentence of less than one year or (ii) the Director of the Department of Corrections if the judgment of conviction the petitioner challenges has a suspended sentence of one year or more.
    3. The petitioner shall name a proper party respondent, and if he fails to do so, the court may allow amendment of the petition. If the petitioner fails to amend the petition by naming a proper party respondent in the time provided by the court, the court in which the petition is filed shall dismiss the habeas petition without prejudice.
    4. If the court in which the petition was filed determines that the petitioner’s allegations present a case for the determination of unrecorded matters of fact relating to a previous judicial proceeding in any circuit court, the court may transfer the petition to the circuit court in which such judicial proceeding occurred, or if the petition was filed in the Supreme Court, the Court may require the circuit court in which such judicial proceeding occurred to conduct an evidentiary hearing, in accordance with such procedures as may be set forth in the Rules of Supreme Court of Virginia.

    History. Code 1950, § 8-599; 1977, c. 617; 2015, c. 554; 2019, cc. 8, 48.

    The 2015 amendments.

    The 2015 amendment by c. 554 added the subsection A designation, subdivisions A 1 through A 3, and subsection B; and inserted “or potential” preceding “custody of him” at the end of the first paragraph of subsection A.

    The 2019 amendments.

    The 2019 amendments by cc. 8 and 48 are identical, and rewrote subsection A, which read: “The writ shall be served on the person to whom it is directed or, in his absence from the place where the petitioner is confined, on the person having the immediate or potential custody of him”; added subsection B, redesignated former subdivisions A 1 through A 3 and subsection B as subdivisions B 1 through B 3 and subsection C, respectively; in subdivision B 1, substituted “petitioner has been committed to, or is subject to transfer to, the Department of Corrections” for “sentence is one year or more,” and substituted “petitioner’s sentence will be served in such local or regional jail facility” for “sentence is less than one year”; in subsection C, substituted “may allow” for “shall allow”; and added subsection D.

    Michie’s Jurisprudence.

    For related discussion, see 9A M.J. Habeas Corpus, § 22.

    CASE NOTES

    Where the person alleged to be unlawfully detained labors under disabilities, the petitioner is the person from whom the bond provided for by this section may be required, and who is liable for the costs, whether the writ is issued upon the petition of the person asserting the claim to the custody or upon the petition of the person detained by his next friend. Armstrong v. Stone, 50 Va. (9 Gratt.) 102, 1852 Va. LEXIS 52 (1852) (decided under prior law).

    Applicability of second paragraph. —

    The second paragraph applies only to cases involving petitioners held under criminal process. Walker v. Brooks, 203 Va. 417 , 124 S.E.2d 195, 1962 Va. LEXIS 161 (1962) (decided under prior law).

    The second paragraph of this section was applicable to a petition alleging an inconsistency between indictment and sentence, incompetency of court-appointed counsel, and improper inducement of a guilty plea, since these allegations presented a case for the determination of unrecorded matters of fact relating to petitioner’s trial. Cunningham v. Frye, 203 Va. 539 , 125 S.E.2d 846, 1962 Va. LEXIS 182 (1962) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Proper responding parties. —

    Habeas petitioner, who was not a state-responsible offender, named the wrong parties — the Director of the Virginia Department of Corrections and a county’s chief probation officer — because the Virginia Alcohol Safety Action Program was neither a statutory probation agency, nor were its employees probation officers for purposes of habeas corpus litigation. Therefore, the only jurisdictionally proper party respondent to the suit was the county sheriff. Nino v. Clarke, 102 Va. Cir. 380, 2019 Va. Cir. LEXIS 356 (Fairfax County Aug. 21, 2019).

    Motion to dismiss. —

    Where an inmate was not in the custody of the correctional officers, their demurrer was sustained; however, where the correction department’s motion to dismiss did not reach all the merits of the inmate’s § 8.01-657 habeas corpus claims, it was denied. Fusilier v. Smith, 62 Va. Cir. 239, 2003 Va. Cir. LEXIS 307 (Loudoun County July 7, 2003) (decided under prior law).

    § 8.01-659. Repealed by Acts 2019, cc. 8 and 48, cl. 2.

    Editor’s note.

    Former § 8.01-659 , pertaining to the penalty for disobeying the writ, was derived from Code 1950, § 8-600, 1977, c. 617.

    § 8.01-660. When affidavits may be read.

    In the discretion of the court or judge before whom the petitioner is brought, the affidavits of witnesses taken by either party, on reasonable notice to the other, may be read as evidence.

    History. Code 1950, § 8-601; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 9A M.J. Habeas Corpus, §§ 20, 23.

    CASE NOTES

    This section permits a habeas court to consider affidavits when deciding a motion to dismiss. Yeatts v. Murray, 249 Va. 285 , 455 S.E.2d 18, 1995 Va. LEXIS 36 (1995).

    Affidavits to show illegality. —

    The affidavits referred to in this section are such as are introduced to show illegality, not the mere irregularity, of the prisoner’s detention, and do not authorize a review of the judgment under which he is detained. Ex parte Marx, 86 Va. 40 , 9 S.E. 475 , 1889 Va. LEXIS 6 (1889) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Factors considered in determining whether to conduct hearing. —

    If, after full consideration of: (1) The factual allegations set out in petition for writ of habeas corpus and all reasonable inferences which flow therefrom, (2) The record of the underlying criminal proceedings, and (3) Any affidavits submitted by the parties, the court determines that reasonable minds could differ as to whether the habeas petitioner is entitled to relief, the court should conduct an evidentiary hearing; if reasonable minds could not differ, then no plenary hearing should be held. Bonhom v. Angelone, 58 Va. Cir. 358, 2002 Va. Cir. LEXIS 44 (Fairfax County Mar. 19, 2002).

    Consideration of affidavits. —

    Inmate’s petition for a writ of habeas corpus failed as trial counsel averred that trial counsel discussed the inmate’s appeal rights with the inmate, and § 8.01-660 allowed the habeas court to consider trial counsel’s affidavit when considering a motion to dismiss; the habeas court credited trial counsel. Woolen v. Young, 2010 Va. Cir. LEXIS 53 (Fairfax County Apr. 22, 2010).

    § 8.01-661. Facts proved may be made part of record.

    All the material facts proved shall, when it is required by either party, be made a part of the proceedings and entered by the clerk among the records of the court.

    History. Code 1950, § 8-602; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 9A M.J. Habeas Corpus, § 23.

    § 8.01-662. Judgment of court or judge trying it; payment of costs and expenses when petition denied.

    After hearing the matter both upon the response and any other evidence, the court shall either discharge or remand the petitioner, grant him any other relief to which he is entitled, or admit him to bail and adjudge the cost of the proceeding, including the charge for transporting the prisoner, provided, however, that if the petition is denied, the costs and expenses of the proceeding and the attorney fees of any attorney appointed to represent the petitioner shall be assessed against the petitioner. If such cost, expenses, and fees are collected, they shall be paid to the Commonwealth.

    When relief is granted upon a petition for a writ of habeas corpus, the order granting relief on the writ shall be served on the respondent and the petitioner. Service may, in the court’s discretion, be accomplished by personal service or by transmitting a certified copy of the order to the parties via regular or certified mail, a third-party commercial carrier, or electronic delivery.

    History. Code 1950, § 8-603; 1968, c. 482; 1977, c. 617; 2019, cc. 8, 48.

    The 2019 amendments.

    The 2019 amendments by cc. 8 and 48 are identical, combined the first two sentences into one sentence and add added the last paragraph; in the first sentence, substituted “response and any other evidence, the court shall either discharge or remand the petitioner, grant him any other relief to which he is entitled” for “return and any other evidence, the court before whom the petitioner is brought shall either discharge or remand him” and made stylistic changes.

    Michie’s Jurisprudence.

    For related discussion, see 9A M.J. Habeas Corpus, §§ 3, 20, 21, 23, 24, 25.

    CASE NOTES

    Judgment on habeas corpus held not final disposition of case. —

    A judgment on habeas corpus that the order under which petitioner was committed to the penitentiary was defective, directing that the prisoner be released from the penitentiary and remanded to the sheriff for further action, was not a final disposition of the case. Teasley v. Commonwealth, 188 Va. 376 , 49 S.E.2d 604, 1948 Va. LEXIS 172 (1948) (decided under prior law).

    CIRCUIT COURT OPINIONS

    Petition not moot upon petitioner’s release from confinement. —

    Petitioner’s habeas petition was not moot, even though the petitioner no longer was under any legal restraint or subject to any further confinement, because there was a sufficient collateral consequence from the suspension of the petitioner’s nursing license and the loss of the petitioner’s job as a result of the petitioner’s conviction such that a justiciable controversy existed for the case to go forward. Desetti v. Lee, 87 Va. Cir. 16, 2013 Va. Cir. LEXIS 133 (Augusta County May 28, 2013).

    § 8.01-663. Judgment conclusive.

    Any such judgment entered of record shall be conclusive, unless the same be reversed, except that the petitioner shall not be precluded from bringing the same matter in question in an action for false imprisonment.

    History. Code 1950, § 8-605; 1977, c. 617.

    Law Review.

    For survey of Virginia law on criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970).

    Michie’s Jurisprudence.

    For related discussion, see 8B M.J. Former Adjudication or Res Judicata, § 74.

    CASE NOTES

    The principle of res judicata does not apply to habeas corpus proceedings. Hawks v. Cox, 211 Va. 91 , 175 S.E.2d 271, 1970 Va. LEXIS 216 (1970); Bland v. Johnson, 495 F. Supp. 735, 1980 U.S. Dist. LEXIS 12820 (E.D. Va. 1980). (decided under prior law).

    Nevertheless, this section affords relief from the increasing burden of repetitive habeas corpus applications. Hawks v. Cox, 211 Va. 91 , 175 S.E.2d 271, 1970 Va. LEXIS 216 (1970) (decided under prior law).

    If a court has determined that a petition for habeas corpus is repetitious then, without appointing counsel, it may deny the writ under this section. Inevitably, there will be instances when the court receiving a petition which appears meritorious on its face will issue a show cause order before finding that all the allegations have previously been resolved against the petitioner. In such cases the Attorney General can only move to dismiss under the same statutory authority. Hawks v. Cox, 211 Va. 91 , 175 S.E.2d 271, 1970 Va. LEXIS 216 (1970) (decided under prior law).

    Previous determination of issues by either state or federal courts will be conclusive, absent a change of circumstances. Hawks v. Cox, 211 Va. 91 , 175 S.E.2d 271, 1970 Va. LEXIS 216 (1970); Bland v. Johnson, 495 F. Supp. 735, 1980 U.S. Dist. LEXIS 12820 (E.D. Va. 1980). (decided under prior law).

    Repetitious petition. —

    Pursuant to this section, a Virginia court may dismiss a petition for a writ of habeas corpus summarily if it determines that it is repetitious. Bland v. Johnson, 495 F. Supp. 735, 1980 U.S. Dist. LEXIS 12820 (E.D. Va. 1980).

    § 8.01-664. How and when Supreme Court summoned to try appeal therefrom.

    If, during the recess of the Supreme Court, the Governor or the Chief Justice of the Court should think the immediate revision of any such judgment to be proper, he may summon the Court for that purpose, to meet on any day to be fixed by him.

    History. Code 1950, § 8-606; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 9A M.J. Habeas Corpus, § 25.

    § 8.01-665. When execution of judgment suspended; when prisoner admitted to bail.

    When the prisoner is remanded, the execution of the judgment shall not be suspended by a petition for appeal or by a writ of error, or for the purpose of applying for such writ. When he is ordered to be discharged, and the execution of the judgment is suspended for the purpose of petitioning for appeal to the Court of Appeals or applying for a writ of error from the Supreme Court, the court making such suspending order may admit the prisoner to bail until the expiration of the time allowed for filing a petition for appeal or applying for the writ of error, or, in case the petition for appeal is filed or the writ of error is allowed, until the decision of the Court of Appeals or the Supreme Court thereon is duly certified.

    History. Code 1950, § 8-607; 1977, c. 617; 1984, c. 703.

    Michie’s Jurisprudence.

    For related discussion, see 9A M.J. Habeas Corpus, §§ 24, 25.

    § 8.01-666. When and by whom writs of habeas corpus ad testificandum granted.

    Writs of habeas corpus ad testificandum may be granted by any circuit court in the same manner and under the same conditions and provisions as are prescribed by this chapter as to granting the writ of habeas corpus ad subjiciendum so far as the same are applicable.

    History. Code 1950, § 8-608; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 9A M.J. Habeas Corpus, § 2.

    § 8.01-667. Transmission of records to federal court.

    Whenever any habeas corpus case is pending in a federal court, upon written request of the Attorney General or any assistant attorney general, a court of this Commonwealth shall transmit to such federal court such records as may be requested.

    History. Code 1950, § 8-608.1; 1975, c. 389; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 9A M.J. Habeas Corpus, §§ 17, 23.

    § 8.01-668. Writ de homine abolished.

    The writ de homine replegiando is abolished.

    History. Code 1950, § 8-609; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 9A M.J. Habeas Corpus, § 2.

    Chapter 26. Appeals to the Supreme Court.

    Article 1. Definitions.

    § 8.01-669. Definitions.

    As used in Chapters 26, 26.1 and 26.2, unless the context otherwise requires, the term:

    “Judgment” includes a decree, order, finding, or award.

    “Petitioner” means a party who petitions to the Court of Appeals or the Supreme Court for an appeal.

    “Appellant” means any aggrieved party who has an appeal of right or who has been granted an appeal by the Court of Appeals or the Supreme Court.

    “Appellate court” means either the Court of Appeals or the Supreme Court, or both as the context may indicate.

    History. 1977, c. 617; 1984, c. 703.

    REVISERS’ NOTE

    This section contains definitions for certain terms appearing throughout chapter 26. The terms defined economize the language of various sections which formerly used multiple terms, e.g., “judgment, decree or order.”

    Article 2. When Granted.

    § 8.01-670. In what cases awarded.

    A party aggrieved by a final decision of the Court of Appeals may petition the Supreme Court for an appeal in accordance with § 17.1-411 .

    History. Code 1950, § 8-462; 1977, c. 617; 1984, c. 703; 1997, c. 801; 2002, c. 107; 2005, c. 681; 2021, Sp. Sess. I, c. 489.

    Cross references.

    As to appellate jurisdiction of Supreme Court, see Va. Const., Art. VI, § 1 and § 17.1-310 .

    As to recovery of damages sustained for property withheld during appeal, see § 8.01-123 .

    As to appeal bonds, see § 8.01-676.1 .

    As to jurisdiction over appeals from grant or denial of injunctions, see § 8.01-626 .

    For appeals in habeas corpus proceedings, see §§ 8.01-664 , 8.01-665 .

    For provisions relating to decisions on appeal, see §§ 8.01-680 et seq.

    For writs of error in criminal cases, see §§ 19.2-317 et seq.

    For provisions as to appeals concerning roadways, see §§ 56-16, 56-19, 56-21, 56-28, 56-31.

    As to appeals from the Virginia Employment Commission, see § 60.2-625 .

    As to appeals from the Workers’ Compensation Commission, see § 65.2-706 .

    For rules of court as to appellate proceedings in the Supreme Court, see Rules 5:1 through 5:42. For Rules of Court as to Appellate proceedings in the Court of Appeals, see Rules 5A:1 through 5A:36.

    For a petition for review pursuant to § 8.01-626 , and for final judgments within the meaning of this section not being reviewable by a justice of the Supreme Court under § 8.01-626 , see Rule 5:17A.

    Editor’s note.

    Acts 1997, c. 801, cl. 2, provides: “That the provisions of this act shall become effective on January 1, 1998. The powers granted and duties imposed pursuant to this act shall apply prospectively to guardians and conservators appointed by court order entered on or after that date, or modified on or after that date if the court so directs, without regard to when the petition was filed. The procedures specified in this act governing proceedings for appointment of a guardian or conservator or termination or other modification of a guardianship shall apply on and after that date without regard to when the petition therefor was filed or the guardianship or conservatorship created.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

    The 2002 amendments.

    The 2002 amendment by c. 107 added subsection C.

    The 2005 amendments.

    The 2005 amendment by c. 681, effective January 1, 2006, substituted “on an equitable claim” for “in chancery” in subsection B.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, rewrote the section.

    Law Review.

    For article, “Appellate Justice: A Crisis in Virginia?”, see 57 Va. L. Rev. 3 (1971).

    For note discussing the Virginia Judicial Council’s intermediate appellate court proposal, see 16 U. Rich. L. Rev. 209 (1982).

    For an article, ‘Final and Interlocutory Appeals in Virginia,‘ see 8 Geo. Mason L. Rev. 337 (1999).

    For annual survey article, “Civil Practice and Procedure,” see 44 U. Rich. L. Rev. 269 (2009).

    For essay “Bifurcation of Civil Trials,” see 45 U. Rich. L. Rev. 1 (2010).

    For essay, “Nonsuit in Virginia Civil Trials,” see 48 U. Rich. L. Rev. 265 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 30, 44, 68, 76, 78, 79.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Constitutionality. —

    The right to appellate review is a statutory right and is not a necessary element of due process; thus, no due process violation occurs if an appeal is barred. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, 3 Va. Law Rep. 2720, 1987 Va. LEXIS 215, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267, 1987 U.S. LEXIS 4520 (1987).

    The statutes which limit review of a death penalty case to the Supreme Court do not violate equal protection rights, as it is rational for the General Assembly, given the gravity of cases involving a sentence to death, to provide death-penalty defendants an automatic, plenary review in the Commonwealth’s highest court. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, 3 Va. Law Rep. 2720, 1987 Va. LEXIS 215, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267, 1987 U.S. LEXIS 4520 (1987).

    Section controls over § 8.01-626 in final judgments. —

    The summary procedure for review of orders regarding injunctions under § 8.01-626 may not be employed as a substitute for an appeal under this section when a final judgment within the meaning of this section has been entered in the circuit court. Omega Corp. v. Cobb, 222 Va. 875 , 292 S.E.2d 44, 1981 Va. LEXIS 386 (1981).

    Appellate jurisdiction in child guardian matters. —

    Subdivision 3 e of former § 17-166.05 gives jurisdiction to the Court of Appeals in “[a]ny final judgment, order, or decree of a circuit court involving . . . [t]he control or disposition of a child.” Because this section clearly contemplates the Court of Appeals having initial appellate jurisdiction over at least some of the judgments listed in that section, and because guardianship is a matter commonly involving the control or disposition of a child, these two jurisdictional statutes when read together evince a legislative intent to grant the Court of Appeals initial appellate jurisdiction in matters involving the appointment or qualification of guardians for a minor child. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475, 11 Va. Law Rep. 51, 1994 Va. App. LEXIS 485 (1994).

    The Court of Appeals does not have jurisdiction of final decisions of circuit courts on appeal from decisions of boards of zoning appeals. Appellate jurisdiction of such cases lies in the Supreme Court under subdivision A 3, assuming, but not deciding, that a petition for certiorari under former § 15.1-497 (see now § 15.2-2314 ) is an “appeal” from a decision of a board of zoning appeals within the meaning of former § 17-116.05(1). Virginia Beach Beautification Comm'n v. Board of Zoning Appeals, 231 Va. 415 , 344 S.E.2d 899, 1986 Va. LEXIS 207 (1986).

    Supreme Court had jurisdiction in refusal to submit to alcohol test case. —

    Although former § 18.2-268 V (now § 18.2-268.4 ) regulated the procedure on appeal, a defendant’s substantive right of appeal is regulated by this section, which authorizes an appeal to the Supreme Court by any person aggrieved by a final judgment in any other civil case. Thus, the Supreme Court had jurisdiction in a refusal to submit to a blood or breath alcohol test case. Commonwealth v. Rafferty, 241 Va. 319 , 402 S.E.2d 17, 7 Va. Law Rep. 1744, 1991 Va. LEXIS 44 (1991).

    For an action protesting the decision to award a contract brought under § 11-70 of the Virginia Public Procurement Act and not under the administrative appeals procedure authorized by § 11-71, appellate jurisdiction lies with the Supreme Court and not the Court of Appeals. Allstar Towing, Inc. v. City of Alexandria, 231 Va. 421 , 344 S.E.2d 903, 1986 Va. LEXIS 208 (1986).

    Appellant jurisdiction limited. —

    County commissioner of accounts had subject matter jurisdiction to hear a petition for aid and direction filed initially with him because the circuit court had subject matter jurisdiction over the case, and the supreme court reviewed decisions of the circuit court, not decisions of the commissioner; a commissioner’s authority to assist the circuit court with the settlement of estates was an extension of the circuit court’s subject matter jurisdiction to administer estates. Gray v. Binder, 294 Va. 268 , 805 S.E.2d 768, 2017 Va. LEXIS 157 (2017).

    B.Appealable Judgments, Orders and Decrees.
    1.In General.

    Nonsuit against defendant against whom cross-claim filed. —

    When an order of nonsuit improperly dismisses a party defendant against whom a valid cross-claim has been duly filed, effectively time-barring the cause of action set forth in the cross-claim, such order is a final, appealable judgment as to the cross-claimant within the meaning of this statute. Iliff v. Richards, 221 Va. 644 , 272 S.E.2d 645, 1980 Va. LEXIS 286 (1980).

    Ordinarily, an order of nonsuit is not to be considered a final judgment for purposes of appeal. An order of nonsuit is a final, appealable order within the meaning of subdivision A 3, only when a dispute exists whether the trial court properly granted a motion for nonsuit. McManama v. Plunk, 250 Va. 27 , 458 S.E.2d 759, 1995 Va. LEXIS 90 (1995).

    Absent an appealable order in an adoption proceeding the Supreme Court may not determine whether any of the requirements for adoption have been met. Where the order in a case was not a final or even an interlocutory order of adoption nor was it appealable as an order adjudicating the principles of a cause, any finding made in the adoption proceeding is not yet appealable. Shortridge v. Deel, 224 Va. 589 , 299 S.E.2d 500, 1983 Va. LEXIS 165 (1983).

    Discovery orders under Uniform Foreign Depositions Act subject to review. —

    Ordinarily, a trial court’s discovery orders are not subject to review on direct appeal because they are not final within the contemplation of this section but an order granting or refusing a motion to quash or issue a protective order, in a proceeding brought in a court of the commonwealth pursuant to the Uniform Foreign Depositions Act, is a final order subject to appellate review. America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350 , 542 S.E.2d 377, 2001 Va. LEXIS 38 (2001).

    Discovery orders under Uniform Foreign Depositions Act subject to appeal. —

    Under the Uniform Foreign Depositions Act, an order of the trial court disposing of all discovery issues before it and concluding the entirety of the proceedings in a Virginia court, is a final order subject to appeal under this section. America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350 , 542 S.E.2d 377, 2001 Va. LEXIS 38 (2001).

    Where a dispute exists whether the trial court properly granted a motion for nonsuit, that order of nonsuit is a final, appealable order within the meaning of subdivision A 3. Wells v. Lorcom House Condominiums' Council of Co-Owners, 237 Va. 247 , 377 S.E.2d 381, 5 Va. Law Rep. 1773, 1989 Va. LEXIS 33 (1989).

    Jurisdiction over appeals from determinations of state university. —

    Under § 17.1-405 , the Virginia Court of Appeals only has jurisdiction over an appeal from an administrative agency, not over an administrative decision made by an entity that is not purely an administrative agency. The Court of Appeals thus lacks jurisdiction over a trial court decision on appeal from the determination of a state university pursuant to § 23-7.4; appellate jurisdiction of such cases lies in the Virginia Supreme Court under subdivision A 3 of § 8.01-670 . George Mason Univ. v. Floyd, 275 Va. 32 , 654 S.E.2d 556, 2008 Va. LEXIS 11 (2008).

    Order changing child’s name. —

    An order in an independent civil action changing a name, including that of child, is a final judgment in a civil case within the meaning of this section and is, therefore, properly appealable to the Supreme Court. Rowland v. Shurbutt, 259 Va. 305 , 525 S.E.2d 917, 2000 Va. LEXIS 50 (2000).

    Order compelling arbitration. —

    Order that compelled arbitration of an employee’s claim against her employer pursuant to the Virginia Uniform Arbitration Act, § 8.01-581.01 et seq., was not a final judgment order for purposes of appeal as contemplated by subdivision A 3 of this section; pursuant to § 8.01-581.010 , the trial court retained jurisdiction to vacate an arbitration award, and, pursuant to § 8.01-581.011 , the trial court retained jurisdiction to modify or correct an arbitration award. Seguin v. Northrop Grumman Sys. Corp., 277 Va. 244 , 672 S.E.2d 877, 2009 Va. LEXIS 30 (2009).

    Under the severable-interests rule, a final adjudication of a collateral matter that addresses separate and severable interests can be appealed only when the appeal cannot affect the determination of the remaining issues in the case, even if the adjudication is reversed. The order may be appealed either at the time of its entry or when the trial court enters a final order disposing of the remainder of the case. Thompson v. Skate Am., Inc., 261 Va. 121 , 540 S.E.2d 123, 2001 Va. LEXIS 20 (2001).

    Civil contempt. —

    Section § 19.2-318 did not provide appellate jurisdiction for either the Supreme Court of Virginia or the Court of Appeals of Virginia to review the judgment of the circuit court dismissing the rule to show cause and refusing to hold the property owner in civil contempt of court; therefore, finding no abrogation of the common-law rule in the current or former versions of § 19.2-318 that would give the court jurisdiction of the instant appeal, the court turned to subdivision A 3 of § 8.01-670 . The General Assembly abrogated the common-law rule that appellate review of contempt proceedings was not available only with regard to judgments “for” contempt; consequently, the court did not have jurisdiction under subdivision A 3 of § 8.01-670 to review the judgment dismissing the rule to show cause and refusing to hold the property owner in civil contempt of court. Jenkins v. Mehra, 281 Va. 37 , 704 S.E.2d 577, 2011 Va. LEXIS 18 (2011).

    Appellate court did not have jurisdiction to review the trial court’s award of attorney fees to appellee because the award arose out of, and was dependent on, the trial court’s finding that appellee was not in contempt. Because the appellate court lacked jurisdiction to review the trial court’s ruling that appellee was not in contempt, it also lacked jurisdiction to review the award of attorney fees based on that ruling. Staley v. Staley, 2018 Va. App. LEXIS 121 (Va. Ct. App. May 1, 2018).

    For the same reason that subdivision A 3 of § 8.01-670 did not grant appellate jurisdiction to the Virginia Supreme Court to hear an appeal from a judgment refusing to find civil contempt, § 17.1-405 did not grant the appellate court jurisdiction to hear these types of appeals; therefore, the court lacked jurisdiction to review the circuit court’s ruling denying the motion for rule to show cause against appellee. Petersen v. Robertston, 2021 Va. App. LEXIS 112 (Va. Ct. App. July 6, 2021).

    Order did not adjudicate rights of all parties. —

    As the trial court’s order dismissing an action adjudicated only the rights of one defendant, it was rendered with regard to some but not all of the parties involved in the case and was thus not a final order under subdivision A 3 of § 8.01-670 for purposes of appeal. Rutter v. Oakwood Living Ctrs. of Va., Inc., 282 Va. 4 , 710 S.E.2d 460, 2011 Va. LEXIS 123 (2011).

    Order removing case from docket not appealable. —

    Trial court erred by concluding that its order, requiring the suit to be discontinued under subsection B of § 8.01-335 if no action was taken in the next three years, automatically discontinued the action three years later. As the order merely removed the action from the docket, it was not a final order under subdivision A 3 of § 8.01-670 for purposes of appeal. Rutter v. Oakwood Living Ctrs. of Va., Inc., 282 Va. 4 , 710 S.E.2d 460, 2011 Va. LEXIS 123 (2011).

    2.Interlocutory Decrees.

    Jurisdiction to consider appeal of interlocutory decree. —

    Because it was clear from the legislature’s amendment of § 8.01-670 , and rejection of an amendment of § 17.1-405 , that § 8.01-670 .1 applied only to interlocutory appeals to the Supreme Court of Virginia, the Court of Appeals of Virginia lacked jurisdiction to consider an interlocutory appeal under § 8.01-670.1 . Further, the legislature did not limit the exclusion of § 8.01-670.1 only to those interlocutory appeals over which the Court of Appeals already had jurisdiction, but instead, cited to the whole of § 17.1-405 . Commonwealth v. Fairfax County Sch. Bd., 49 Va. App. 797, 645 S.E.2d 337, 2007 Va. App. LEXIS 249 (2007).

    Provisions of § 8.01-672 and subdivision A 1 of § 8.01-670 did not authorize the interlocutory appeal of a circuit court’s order classifying the taxpayer’s property because there was no statutory authorization for an interlocutory appeal in an erroneous tax assessment case. Comcast of Chesterfield County, Inc. v. Bd. of Supervisors, 277 Va. 293 , 672 S.E.2d 870, 2009 Va. LEXIS 40 (2009).

    As the trial court’s order adjudicated an adminstratrix’s ability to proceed with the action only as to a nursing home, and as the interests of all four defendants were joint and not severable, because the allegations against the home, a rehabilitation facility, and its president derived from the alleged negligent conduct of the facility’s employee, the trial court’s adjudication as to the home did not concern a collateral matter, separate and distinct from the general subject of the litigation. Therefore, the order was not appealable under subdivision A 3 of § 8.01-670 . Rutter v. Oakwood Living Ctrs. of Va., Inc., 282 Va. 4 , 710 S.E.2d 460, 2011 Va. LEXIS 123 (2011).

    Foreign divorce decree held appealable. —

    In an appeal by a husband of a foreign court’s divorce decree where the wife challenged the Virginia court’s jurisdiction to entertain the appeal, the decree was appealable since it denied the husband an injunction, and since it adjudicated the principles of the cause. Ceyte v. Ceyte, 222 Va. 11 , 278 S.E.2d 791, 1981 Va. LEXIS 263 (1981).

    C.Who May Appeal.

    Elimination of codefendant who could be held jointly liable. —

    The defendant manifestly was aggrieved, within the contemplation of this section, by the court’s action in erroneously eliminating a codefendant who could be held jointly liable with defendant to the plaintiff. Government Employees Ins. Co. v. Gallop, 224 Va. 720 , 299 S.E.2d 525, 1983 Va. LEXIS 183 (1983).

    Virginia Employment Commission held not an aggrieved person, with the right of appeal under this section, where circuit court reversed Commission’s decisions with respect to entitlement of benefits. See VEC v. City of Virginia Beach, 222 Va. 728 , 284 S.E.2d 595, 1981 Va. LEXIS 367 (1981).

    Appeal under dangerous dog statute, § 3.2-6540. —

    Supreme court had appellate jurisdiction over an order finding that a dog was dangerous within the meaning of subsection A of § 3.2-6540 because an appeal under subsection B of § 3.2-6540 was civil in nature and, by operation of § 8.01-670 , the supreme court had appellate jurisdiction. Frouz v. Commonwealth, 296 Va. 391 , 821 S.E.2d 324, 2018 Va. LEXIS 175 (2018).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    Section conforms to the provision of the Constitution relating to the jurisdiction of the Supreme Court. The 1928 amendment to the section of the Constitution, which eliminated the limitations on the jurisdiction of the Supreme Court, in no way impaired the provision of this section. Unemployment Comp. Comm'n v. Harvey, 179 Va. 202 , 18 S.E.2d 390, 1942 Va. LEXIS 212 (1942).

    The legislature has the power to deny to litigants any review of the proceedings by the Supreme Court. Town of Falls Church v. County Bd., 166 Va. 192 , 184 S.E. 459 , 1936 Va. LEXIS 181 (1936).

    Liberal construction. —

    This section being remedial should be construed liberally so as to effectuate the purpose of its enactment. Southern Ry. v. Hill, 106 Va. 501 , 56 S.E. 278 , 1907 Va. LEXIS 112 (1907); Hampton Rds. San. Dist. Comm'n v. Smith, 193 Va. 371 , 68 S.E.2d 497, 1952 Va. LEXIS 145 (1952).

    This section does not deal with the completion of the record in the trial court. —

    This and other sections regulating appeals and applications for writs of error do not purport to deal with the time or the manner in which the record shall be completed in the trial court. Nethers v. Nethers, 160 Va. 335 , 168 S.E. 428 , 1933 Va. LEXIS 213 (1933).

    Appeals and writs of error are not allowed for the purpose of settling abstract questions, however interesting and important to the public they may be, but only to correct errors injuriously affecting the appellant or plaintiff in error. Nicholas v. Lawrence, 161 Va. 589 , 171 S.E. 673 , 1933 Va. LEXIS 348 (1933).

    Real controversy must exist. —

    Whenever it appears, or is made to appear by extrinsic evidence, that there is no actual controversy, or that if one existed, it has ceased, the appeal or writ of error should be dismissed. Courts of justice sit to decide actual controversies by a judgment which can be enforced, and not to give opinions upon moot questions or abstract propositions of law. Hamer v. Commonwealth, 107 Va. 636 , 59 S.E. 400 , 1907 Va. LEXIS 81 (1907); Levy v. Kosmo, 129 Va. 446 , 106 S.E. 228 , 1921 Va. LEXIS 108 (1921).

    Appeal dismissed if controversy settled. —

    Where, after a writ of error was granted to the judgment of the circuit court refusing to grant the plaintiff in error a mandamus to compel the clerk of the board of election commissioners to give him a certificate of election, it appeared that the controversy had been decided in a proper proceeding, the writ of error was dismissed. Franklin v. Peers, 95 Va. 602 , 29 S.E. 321 , 1898 Va. LEXIS 22 (1898).

    Whether a party has a right to appeal is not a question for the lower but for the appellate court. Todd v. Gallego Mills Mfg. Co., 84 Va. 586 , 5 S.E. 676 , 1888 Va. LEXIS 113 (1888).

    Appellate court has no power when decree not appealable. —

    Where the Supreme Court has reached the conclusion that the decree under review is not an appealable decree, that court is without jurisdiction to decide any other question in the case. Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925).

    B.Jurisdiction.

    An appeal from the decision of an inferior court does not lie, unless jurisdiction to entertain such appeal is conferred by Constitution or statute. Richmond Cedar Works & Liberty Mut. Ins. Co. v. Harper, 129 Va. 481 , 106 S.E. 516 , 1921 Va. LEXIS 111 (1921).

    The Virginia Constitution does not, proprio vigore, confer jurisdiction upon the Supreme Court. Therefore, whatever jurisdiction it exercises must be by virtue of statutory authority given in pursuance of the Constitution. The provisions of the Constitution in this particular are carried into effect by §§ 8.01-670 and 8.01-672 . Barnett v. Meredith, 51 Va. (10 Gratt.) 650, 1854 Va. LEXIS 71 (1854); Page v. Clopton, 71 Va. 417 (1878); Prison Ass'n v. Ashby, 93 Va. 667 , 25 S.E. 893 , 1896 Va. LEXIS 123 (1896)(see also).Rudacille v. State Comm'n on Conservation & Dev., 155 Va. 808 , 156 S.E. 829 , 1931 Va. LEXIS 270 (1931).

    Legislature has right to extend or deny remedy. —

    Where the Constitution does not expressly give the right of an appeal the legislature has the right to extend or deny this remedy to the litigant. Hulvey v. Roberts, 106 Va. 189 , 55 S.E. 585 , 1906 Va. LEXIS 120 (1906).

    The burden is upon him who invokes the authority of the Supreme Court to establish its jurisdiction over the matter in controversy. Harman v. City of Lynchburg, 74 Va. (33 Gratt.) 37, 1880 Va. LEXIS 20 (1880); Forbes v. State Council, 107 Va. 853 , 60 S.E. 81 , 1908 Va. LEXIS 145 (1908), writ of error dismissed, 216 U.S. 396, 30 S. Ct. 295, 54 L. Ed. 534, 1910 U.S. LEXIS 1905 (1910); Lamb v. Thompson, 112 Va. 134 , 70 S.E. 507 , 1911 Va. LEXIS 62 (1911); C.L. Ritter Lumber Co. v. Coal Mt. Mining Co., 115 Va. 370 , 79 S.E. 322 , 1913 Va. LEXIS 46 (1913); Jones v. Buckingham Slate Co., 116 Va. 120 , 81 S.E. 28 , 1914 Va. LEXIS 14 (1914).

    The burden of showing the existence of jurisdiction to hear the appeal is on the plaintiff in error, and such jurisdiction must affirmatively appear from the record. Williamson v. Payne, 103 Va. 551 , 49 S.E. 600 (1905); C.L. Ritter Lumber Co. v. Coal Mt. Mining Co., 115 Va. 370 , 79 S.E. 322 , 1913 Va. LEXIS 46 (1913)(see also).Jones v. Buckingham Slate Co., 116 Va. 120 , 81 S.E. 28 , 1914 Va. LEXIS 14 (1914); J.A. Heisler & Bro. v. Merchants Cold Storage & Ice Mfg. Co., 139 Va. 114 , 123 S.E. 505 , 1924 Va. LEXIS 89 (1924).

    When jurisdiction affirmatively appears. —

    The jurisdiction of the Supreme Court affirmatively appears from the record, when the court can see that the judgment of the lower court necessarily involved the constitutionality of some statute or ordinance, or drew in question some right under the federal or State Constitution. Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626 , 59 S.E. 476 , 1907 Va. LEXIS 80 (1907).

    C.Appealable Judgments, Orders and Decrees.
    1.In General.

    Jurisdiction limited to the issue. —

    The jurisdiction of the court below was limited to the issue made by the pleadings and the same is true of the jurisdiction of the Supreme Court. Reynolds v. Adams, 125 Va. 295 , 99 S.E. 695 , 1919 Va. LEXIS 24 (1919).

    Appeal will lie to a void decree. —

    A writ of error or appeal will lie to or from a judgment, decree or order of a court, although the same may be void for want of jurisdiction or for other cause. Crane v. Crane, 62 Va. (21 Gratt.) 579, 1871 Va. LEXIS 37 (1871).

    An order of a court of record affirming a decision of a board of zoning appeals is a final order in a “civil case,” and is appealable under subdivision A 3 of this section. Burkhardt v. Board of Zoning Appeals, 192 Va. 606 , 66 S.E.2d 565, 1951 Va. LEXIS 208 (1951).

    And from order overruling exceptions to report of commissioner of accounts. —

    An appeal lies to the Supreme Court from an order of an inferior court overruling exceptions to and confirming a commissioner of account’s report upon the accounts of a county treasurer, which disallowed credits claimed by the treasurer of $893.78 and awarded costs against him. The judgment of the lower court was, in effect, a judgment against the treasurer for upwards of $900, and was a final judgment and appealable under the provisions of this section. Leachman v. Board of Supvrs., 124 Va. 616 , 98 S.E. 656 , 1919 Va. LEXIS 152 (1919).

    Also from final order in county bond election controversy. —

    In a proceeding to determine the regularity and validity of an election to determine whether or not county bonds shall be issued for permanent road improvements in the magisterial districts of a county, an appeal lies to the court of appeals from the final order of the circuit court in such controversy. Board of Supvrs. v. Spilman, 113 Va. 391 , 74 S.E. 151 , 1912 Va. LEXIS 48 (1912).

    But not from default judgments and decrees. —

    The Supreme Court has no jurisdiction of an appeal from a decree by default until relief has been sought under § 8.01-428 , by motion to the court in which the decree was rendered. When the time allowed by that section expires the decree becomes final and irreversible. Smith v. Powell, 98 Va. 431 , 36 S.E. 522 , 1900 Va. LEXIS 60 (1900).

    Nor from judgments by confession. —

    Where the defendant relinquishes his plea, and agrees to the plaintiff’s damages, there is a judgment by confession, amounting to a release of errors and defendant cannot appeal even by consent of plaintiff. Cooke v. Pope, 17 Va. (3 Munf) 167, 1812 Va. LEXIS 28 (1812)(see also).Edmonds v. Green, 22 Va. (1 Rand.) 44, 1822 Va. LEXIS 4 (1822).

    Under this section specifying in what cases appeals may be awarded, there is no denial of the right of appeal by a defendant from a decree taken for confessed as to him. Shocket v. Silberman, 209 Va. 490 , 165 S.E.2d 414, 1969 Va. LEXIS 131 (1969).

    Nor from consent decree. —

    No appeal lies from a consent decree, as the consent cures all errors. Hinton v. Bland, 81 Va. 588 , 1886 Va. LEXIS 126 (1886); Hounshell v. Hounshell, 116 Va. 675 , 82 S.E. 689 , 1914 Va. LEXIS 75 (1914).

    2.Appealability as Dependent on Finality of Decisions.
    a.In General.

    Under this section in an action at law a writ of error does not lie until a final judgment has been entered in the case by the court below, even though the court may have entered an order which indicates clearly what its final judgment would have been had it entered a final judgment. Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913); Brown v. Carolina, C & O Ry., 116 Va. 597 , 83 S.E. 981 , 1914 Va. LEXIS 65 (1914); Wade v. Peebles, 162 Va. 479 , 174 S.E. 769 , 1934 Va. LEXIS 266 (1934).

    Under this section and § 8.01-671 , which must be considered together, no writ of error may be granted unless the judgment is final. Hatke v. Globe Indem. Co., 167 Va. 184 , 188 S.E. 164 , 1936 Va. LEXIS 290 (1936).

    In the absence of special statutory provision to the contrary, the jurisdiction of the trial court must cease before the jurisdiction of the appellate court accrues. Allison v. Wood, 104 Va. 765 , 52 S.E. 559 , 1906 Va. LEXIS 143 (1906).

    Under this section a decree in equity is not appealable unless it be final or one that adjudicates principles of the cause. Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925).

    Although a decree adjudicating the principles of the cause is appealable, still if it leaves any vital questions unsettled it is not final in the sense of § 8.01-671 , providing that no appeal or writ of error to any final judgment or decree shall lie where the judgment or decree was rendered more than six (now four) months before the petition was presented. Allen v. Parkey, 154 Va. 739 , 149 S.E. 615 , 1929 Va. LEXIS 234 (1929).

    b.Final Judgments.

    Definition. —

    A final order is one that disposes of the whole subject, gives all of the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order. Burch v. Hardwicke, 64 Va. (23 Gratt.) 51, 1873 Va. LEXIS 24 (1873); Alexander v. Byrd, 85 Va. 690 , 8 S.E. 577 , 1889 Va. LEXIS 82 (1889); Postal Tel. Cable Co. v. Norfolk & W. Ry., 87 Va. 349 , 12 S.E. 613 , 1891 Va. LEXIS 77 (1891), dismissed, Postal Tel. Cable Co. v. Norfolk & W. R. Co., 163 U.S. 700, 16 S. Ct. 1205, 41 L. Ed. 315, 1896 U.S. LEXIS 3471 (1896); Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913); Gills v. Gills, 126 Va. 526 , 101 S.E. 900 , 1920 Va. LEXIS 7 (1920); Richardson v. Gardner, 128 Va. 676 , 105 S.E. 225 , 1920 Va. LEXIS 127 (1920); Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925)(see also).Brown v. Carolina, C & O Ry., 116 Va. 597 , 83 S.E. 981 , 1914 Va. LEXIS 65 (1914); Ashworth v. Hagan Estates, Inc., 165 Va. 151 , 181 S.E. 381 , 1935 Va. LEXIS 284 (1935); Dearing v. Walter, 175 Va. 555 , 9 S.E.2d 336, 1940 Va. LEXIS 200 (1940).

    A decree which settles the principles of a cause, determines the rights of creditors, the validity of stock subscriptions, and the liability of stockholders to pay the same as far as necessary to satisfy the demands of creditors, and leaves nothing to be done except to execute and give effect to it, is a final decree on the merits. Martin v. South Salem Land Co., 97 Va. 349 , 33 S.E. 600 , 1899 Va. LEXIS 47 (1899).

    A decree that ends the cause, so that no further action of the court in the cause is necessary is a final decree. Battaile v. Maryland Hosp. for Insane, 76 Va. 63 , 1881 Va. LEXIS 74 (1881).

    A decree may be final as to one party and not to another in the same cause, but it cannot be final as to any party who is not put out of the cause. As to any party remaining in the court, it can, in the nature of things, be only interlocutory. Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925)(see).Dearing v. Walter, 175 Va. 555 , 9 S.E.2d 336, 1940 Va. LEXIS 200 (1940).

    Decree dismissing one of two joint causes is final. —

    Where two causes are heard together and one of them is dismissed and the other continued, the decree is final as to the one dismissed, and unless an appeal is taken within a year (now four months) as provided by statute, the right of appeal is lost. The same rule applies to a so-called amended and supplemental bill which makes an entirely new case and which is dismissed. Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    As is one refusing or granting relief sought. —

    A decree is final so as to be appealable when it either refuses or grants the relief sought by the party complaining. Jones v. Buckingham Slate Co., 116 Va. 120 , 81 S.E. 28 , 1914 Va. LEXIS 14 (1914).

    A judgment may be final although it is not a final determination of rights of parties. —

    A judgment in an action is final within the meaning of this section when it is a termination of the particular action or suit, although it is not a final determination of the right of the parties. Brown v. Carolina, C & O Ry., 116 Va. 597 , 83 S.E. 981 , 1914 Va. LEXIS 65 (1914).

    But if further action is necessary it is not final. —

    If it appears upon the face of the judgment that further action in the cause is necessary to give completely the relief contemplated by the court, then the judgment is not final. Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913); Johnson v. Merrit, 125 Va. 162 , 99 S.E. 785 , 1919 Va. LEXIS 16 (1919); Gills v. Gills, 126 Va. 526 , 101 S.E. 900 , 1920 Va. LEXIS 7 (1920).

    c.Application of Rule in Particular Cases.
    i.Decisions Held Final and Appealable.

    A decree dismissing a bill is a final decree, which can only be set aside by appeal, or by bill of review, within the periods limited by statute. Battaile v. Maryland Hosp. for Insane, 76 Va. 63 , 1881 Va. LEXIS 74 (1881); Pace v. Ficklin, 76 Va. 292 , 1882 Va. LEXIS 32 (1882); Jones v. Turner, 81 Va. 709 , 1886 Va. LEXIS 134 (1886).

    And an order refusing to admit to probate a paper offered as a will is a final judgment to which a writ of error lies, although no provision is made for the costs of the proceedings in which the will is offered. Wallen v. Wallen, 107 Va. 131 , 57 S.E. 596 , 1907 Va. LEXIS 21 (1907).

    Order refusing to allow bill of review to be filed. —

    The refusal of the lower court to allow a bill of review to be filed is a proper subject of appeal. Ambrouse v. Keller, 63 Va. (22 Gratt.) 769, 1872 Va. LEXIS 61 (1872); Connolly v. Connolly, 73 Va. (32 Gratt.) 657, 1880 Va. LEXIS 89 (1880).

    Decree refusing injunction. —

    In an injunction suit in which the case was submitted for a decree on the merits, an appeal from a decree refusing the injunction will not be dismissed on the ground that such decree is not appealable under this section. Clintwood Coal Corp. v. Turner, 133 Va. 464 , 114 S.E. 117 , 1922 Va. LEXIS 110 (1922).

    Decree dissolving injunction. —

    The appellants had the right to appeal because the decree dissolved the injunction and also adjudicated the principles of the case. Good v. Board of Supvrs., 140 Va. 399 , 125 S.E. 321 , 1924 Va. LEXIS 180 (1924).

    And judgment as to setoffs. —

    In an action by the plaintiff against two defendants, one of the defendants filed a plea of setoff in excess of the plaintiff’s demand, and other defendant filed no plea. The court without the intervention of a jury gave judgment in favor of the defendant pleading for the excess of his setoffs over and above the plaintiff’s demand and for his costs. This was a final judgment, disposing of the case as to both defendants, and to it a writ of error lies. Stimmel v. Benthall, 108 Va. 141 , 60 S.E. 765 , 1908 Va. LEXIS 20 (1908).

    b.Final Judgments.

    Definition. —

    A final order is one that disposes of the whole subject, gives all of the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order. Burch v. Hardwicke, 64 Va. (23 Gratt.) 51, 1873 Va. LEXIS 24 (1873); Alexander v. Byrd, 85 Va. 690 , 8 S.E. 577 , 1889 Va. LEXIS 82 (1889); Postal Tel. Cable Co. v. Norfolk & W. Ry., 87 Va. 349 , 12 S.E. 613 , 1891 Va. LEXIS 77 (1891), dismissed, Postal Tel. Cable Co. v. Norfolk & W. R. Co., 163 U.S. 700, 16 S. Ct. 1205, 41 L. Ed. 315, 1896 U.S. LEXIS 3471 (1896); Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913); Gills v. Gills, 126 Va. 526 , 101 S.E. 900 , 1920 Va. LEXIS 7 (1920); Richardson v. Gardner, 128 Va. 676 , 105 S.E. 225 , 1920 Va. LEXIS 127 (1920); Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925)(see also).Brown v. Carolina, C & O Ry., 116 Va. 597 , 83 S.E. 981 , 1914 Va. LEXIS 65 (1914); Ashworth v. Hagan Estates, Inc., 165 Va. 151 , 181 S.E. 381 , 1935 Va. LEXIS 284 (1935); Dearing v. Walter, 175 Va. 555 , 9 S.E.2d 336, 1940 Va. LEXIS 200 (1940).

    A decree which settles the principles of a cause, determines the rights of creditors, the validity of stock subscriptions, and the liability of stockholders to pay the same as far as necessary to satisfy the demands of creditors, and leaves nothing to be done except to execute and give effect to it, is a final decree on the merits. Martin v. South Salem Land Co., 97 Va. 349 , 33 S.E. 600 , 1899 Va. LEXIS 47 (1899).

    A decree that ends the cause, so that no further action of the court in the cause is necessary is a final decree. Battaile v. Maryland Hosp. for Insane, 76 Va. 63 , 1881 Va. LEXIS 74 (1881).

    A decree may be final as to one party and not to another in the same cause, but it cannot be final as to any party who is not put out of the cause. As to any party remaining in the court, it can, in the nature of things, be only interlocutory. Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925)(see).Dearing v. Walter, 175 Va. 555 , 9 S.E.2d 336, 1940 Va. LEXIS 200 (1940).

    Decree dismissing one of two joint causes is final. —

    Where two causes are heard together and one of them is dismissed and the other continued, the decree is final as to the one dismissed, and unless an appeal is taken within a year (now four months) as provided by statute, the right of appeal is lost. The same rule applies to a so-called amended and supplemental bill which makes an entirely new case and which is dismissed. Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    As is one refusing or granting relief sought. —

    A decree is final so as to be appealable when it either refuses or grants the relief sought by the party complaining. Jones v. Buckingham Slate Co., 116 Va. 120 , 81 S.E. 28 , 1914 Va. LEXIS 14 (1914).

    A judgment may be final although it is not a final determination of rights of parties. —

    A judgment in an action is final within the meaning of this section when it is a termination of the particular action or suit, although it is not a final determination of the right of the parties. Brown v. Carolina, C & O Ry., 116 Va. 597 , 83 S.E. 981 , 1914 Va. LEXIS 65 (1914).

    But if further action is necessary it is not final. —

    If it appears upon the face of the judgment that further action in the cause is necessary to give completely the relief contemplated by the court, then the judgment is not final. Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913); Johnson v. Merrit, 125 Va. 162 , 99 S.E. 785 , 1919 Va. LEXIS 16 (1919); Gills v. Gills, 126 Va. 526 , 101 S.E. 900 , 1920 Va. LEXIS 7 (1920).

    c.Application of Rule in Particular Cases.
    i.Decisions Held Final and Appealable.

    A decree dismissing a bill is a final decree, which can only be set aside by appeal, or by bill of review, within the periods limited by statute. Battaile v. Maryland Hosp. for Insane, 76 Va. 63 , 1881 Va. LEXIS 74 (1881); Pace v. Ficklin, 76 Va. 292 , 1882 Va. LEXIS 32 (1882); Jones v. Turner, 81 Va. 709 , 1886 Va. LEXIS 134 (1886).

    And an order refusing to admit to probate a paper offered as a will is a final judgment to which a writ of error lies, although no provision is made for the costs of the proceedings in which the will is offered. Wallen v. Wallen, 107 Va. 131 , 57 S.E. 596 , 1907 Va. LEXIS 21 (1907).

    Order refusing to allow bill of review to be filed. —

    The refusal of the lower court to allow a bill of review to be filed is a proper subject of appeal. Ambrouse v. Keller, 63 Va. (22 Gratt.) 769, 1872 Va. LEXIS 61 (1872); Connolly v. Connolly, 73 Va. (32 Gratt.) 657, 1880 Va. LEXIS 89 (1880).

    Decree refusing injunction. —

    In an injunction suit in which the case was submitted for a decree on the merits, an appeal from a decree refusing the injunction will not be dismissed on the ground that such decree is not appealable under this section. Clintwood Coal Corp. v. Turner, 133 Va. 464 , 114 S.E. 117 , 1922 Va. LEXIS 110 (1922).

    Decree dissolving injunction. —

    The appellants had the right to appeal because the decree dissolved the injunction and also adjudicated the principles of the case. Good v. Board of Supvrs., 140 Va. 399 , 125 S.E. 321 , 1924 Va. LEXIS 180 (1924).

    And judgment as to setoffs. —

    In an action by the plaintiff against two defendants, one of the defendants filed a plea of setoff in excess of the plaintiff’s demand, and other defendant filed no plea. The court without the intervention of a jury gave judgment in favor of the defendant pleading for the excess of his setoffs over and above the plaintiff’s demand and for his costs. This was a final judgment, disposing of the case as to both defendants, and to it a writ of error lies. Stimmel v. Benthall, 108 Va. 141 , 60 S.E. 765 , 1908 Va. LEXIS 20 (1908).

    ii.Decisions Held Not Final and Unappealable.

    A decree overruling a motion to dismiss the bill and granting leave to the plaintiff to file an amended bill is not appealable. Commercial Bank v. Rucker, 24 S.E. 388 , 1896 Va. LEXIS 159 (Va. 1896); London-Virginia Mining Co. v. Moore, 98 Va. 256 , 35 S.E. 722 , 1900 Va. LEXIS 34 (1900).

    Decree fixing liability for rent. —

    A decree fixing upon a party liability for rent is interlocutory until the amount of rent is ascertained. The amount may not be sufficient to give the court jurisdiction. Goodloe v. Woods, 115 Va. 540 , 80 S.E. 108 , 1913 Va. LEXIS 68 (1913).

    A decree ordering sale of land, but not directing application of proceeds held interlocutory and not final, though it adjudicated the principles of the cause. Richardson v. Gardner, 128 Va. 676 , 105 S.E. 225 , 1920 Va. LEXIS 127 (1920).

    Order upholding right to condemn. —

    An order adjudicating the Highway Commissioner’s right to condemn was not a final order since it did not finally dispose of the case. Dove v. May, 201 Va. 761 , 113 S.E.2d 840, 1960 Va. LEXIS 157 (1960).

    Nonsuit. —

    A nonsuit is not a final judgment within the meaning of this section, since a nonsuit must be suffered, if at all, before the jury retire from the bar. Mallory v. Taylor, 90 Va. 348 , 18 S.E. 438 , 1893 Va. LEXIS 58 (1893).

    Order appointing commissioner to assess damages. —

    There must be a degree of finality about every judgment taken up to be reviewed by appellate courts. Judgment appointing commissioners to fix a just compensation for land proposed to be taken in condemnation proceedings, is not final and not appealable. Ludlow v. City of Norfolk, 87 Va. 319 , 12 S.E. 612 , 1891 Va. LEXIS 74 (1891); Postal Tel. Cable Co. v. Norfolk & W. Ry., 87 Va. 349 , 12 S.E. 613 , 1891 Va. LEXIS 77 (1891), dismissed, Postal Tel. Cable Co. v. Norfolk & W. R. Co., 163 U.S. 700, 16 S. Ct. 1205, 41 L. Ed. 315, 1896 U.S. LEXIS 3471 (1896).

    Order granting or refusing amendments to pleadings. —

    No appeal lies to an interlocutory order, granting or refusing amendments to pleadings until there has been a final decree, except as otherwise provided by statute. The case in judgment is not within any of the exceptions provided for by this section. Hobson v. Hobson, 100 Va. 216 , 40 S.E. 899 , 1902 Va. LEXIS 18 (1902).

    Order overruling motion to quash process. —

    In an action against an uninsured motorist under former § 38.1-381, an order which overruled the insurance company’s motion to quash process was not a final order. Rodgers v. Danko, 204 Va. 140 , 129 S.E.2d 828, 1963 Va. LEXIS 127 (1963).

    Order refusing or allowing filing of supplemental bill. —

    There can be no appeal from a decree or order refusing to allow, or allowing, an amended and supplemental bill to be filed, unless and until there is an appeal from a decree which is final, or is appealable under this section. Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    Order touching process. —

    An order declaring a summons void as an alias summons, but good as an original summons, is not appealable under this section, as being a final judgment. Roger's Adm'r v. Bertha Zinc Co., 19 S.E. 782 (Va. Ct. App. 1894).

    An order overruling exceptions to an answer for insufficiency is not a final decree or order, as that term is used in this section. Johnson v. Mundy, 123 Va. 730 , 97 S.E. 564 , 1918 Va. LEXIS 63 (1918).

    Judgment awarding new trial. —

    A judgment awarding a new trial is not a final judgment within the meaning of this section. Smiley v. Provident Life & Trust Co., 106 Va. 787 , 56 S.E. 728 , 1907 Va. LEXIS 147 (1907).

    Judgment as to two of three notes. —

    An order made by the trial court setting aside the verdict as to two of the notes where an action was brought on three notes, and awarding a new trial as to them, but refusing to set it aside as to the other note, and directing that the plaintiff take nothing by his action as to that note, is not a final order or judgment to which a writ of error will lie. Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913).

    Decree refusing relief until further legislation. —

    A decree which declines to grant the relief prayed until the legislature enacts a further law on the subject, is not a final decree, nor does it adjudicate the principles of the cause. From it no appeal lies. If a decision is desired, the proper remedy is by mandamus to compel the trial court to hear and determine the cause. Board of Supvrs. v. City Council, 95 Va. 469 , 28 S.E. 882 , 1898 Va. LEXIS 2 (1898).

    Order directing an issue out of chancery. —

    No appeal will lie from a decree in a chancery cause directing an issue to be tried at the bar of the court to ascertain what amount of money, if any, was due from the appellee to the appellant. The appeal does not fall within the provisions of this section, and must be dismissed as having improvidently awarded. Moore v. Lipscombe, 82 Va. 546 , 1886 Va. LEXIS 71 (1886).

    A decree disallowing and rejecting defendant’s plea of a prior suit pending and requiring defendant to answer does not make any disposition of the prior suit. Nor is it in any sense a decree adjudicating the principles of the cause. The finality of such a decree must be tested by its effect upon the rights of the parties in the instant case, and not in the other suit pending. Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925).

    Action of trial court in setting aside a default judgment and ordering defendant to file its grounds of defense within three weeks, was not a final order, so that the writ of error was improvidently awarded and must be dismissed. Hatke v. Globe Indem. Co., 167 Va. 184 , 188 S.E. 164 , 1936 Va. LEXIS 290 (1936)(see).Massanutten Bank v. Glaize, 177 Va. 519 , 14 S.E.2d 285, 1941 Va. LEXIS 238 (1941).

    ii.Decisions Held Not Final and Unappealable.

    A decree overruling a motion to dismiss the bill and granting leave to the plaintiff to file an amended bill is not appealable. Commercial Bank v. Rucker, 24 S.E. 388 , 1896 Va. LEXIS 159 (Va. 1896); London-Virginia Mining Co. v. Moore, 98 Va. 256 , 35 S.E. 722 , 1900 Va. LEXIS 34 (1900).

    Decree fixing liability for rent. —

    A decree fixing upon a party liability for rent is interlocutory until the amount of rent is ascertained. The amount may not be sufficient to give the court jurisdiction. Goodloe v. Woods, 115 Va. 540 , 80 S.E. 108 , 1913 Va. LEXIS 68 (1913).

    A decree ordering sale of land, but not directing application of proceeds held interlocutory and not final, though it adjudicated the principles of the cause. Richardson v. Gardner, 128 Va. 676 , 105 S.E. 225 , 1920 Va. LEXIS 127 (1920).

    Order upholding right to condemn. —

    An order adjudicating the Highway Commissioner’s right to condemn was not a final order since it did not finally dispose of the case. Dove v. May, 201 Va. 761 , 113 S.E.2d 840, 1960 Va. LEXIS 157 (1960).

    Nonsuit. —

    A nonsuit is not a final judgment within the meaning of this section, since a nonsuit must be suffered, if at all, before the jury retire from the bar. Mallory v. Taylor, 90 Va. 348 , 18 S.E. 438 , 1893 Va. LEXIS 58 (1893).

    Order appointing commissioner to assess damages. —

    There must be a degree of finality about every judgment taken up to be reviewed by appellate courts. Judgment appointing commissioners to fix a just compensation for land proposed to be taken in condemnation proceedings, is not final and not appealable. Ludlow v. City of Norfolk, 87 Va. 319 , 12 S.E. 612 , 1891 Va. LEXIS 74 (1891); Postal Tel. Cable Co. v. Norfolk & W. Ry., 87 Va. 349 , 12 S.E. 613 , 1891 Va. LEXIS 77 (1891), dismissed, Postal Tel. Cable Co. v. Norfolk & W. R. Co., 163 U.S. 700, 16 S. Ct. 1205, 41 L. Ed. 315, 1896 U.S. LEXIS 3471 (1896).

    Order granting or refusing amendments to pleadings. —

    No appeal lies to an interlocutory order, granting or refusing amendments to pleadings until there has been a final decree, except as otherwise provided by statute. The case in judgment is not within any of the exceptions provided for by this section. Hobson v. Hobson, 100 Va. 216 , 40 S.E. 899 , 1902 Va. LEXIS 18 (1902).

    Order overruling motion to quash process. —

    In an action against an uninsured motorist under former § 38.1-381, an order which overruled the insurance company’s motion to quash process was not a final order. Rodgers v. Danko, 204 Va. 140 , 129 S.E.2d 828, 1963 Va. LEXIS 127 (1963).

    Order refusing or allowing filing of supplemental bill. —

    There can be no appeal from a decree or order refusing to allow, or allowing, an amended and supplemental bill to be filed, unless and until there is an appeal from a decree which is final, or is appealable under this section. Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    Order touching process. —

    An order declaring a summons void as an alias summons, but good as an original summons, is not appealable under this section, as being a final judgment. Roger's Adm'r v. Bertha Zinc Co., 19 S.E. 782 (Va. Ct. App. 1894).

    An order overruling exceptions to an answer for insufficiency is not a final decree or order, as that term is used in this section. Johnson v. Mundy, 123 Va. 730 , 97 S.E. 564 , 1918 Va. LEXIS 63 (1918).

    Judgment awarding new trial. —

    A judgment awarding a new trial is not a final judgment within the meaning of this section. Smiley v. Provident Life & Trust Co., 106 Va. 787 , 56 S.E. 728 , 1907 Va. LEXIS 147 (1907).

    Judgment as to two of three notes. —

    An order made by the trial court setting aside the verdict as to two of the notes where an action was brought on three notes, and awarding a new trial as to them, but refusing to set it aside as to the other note, and directing that the plaintiff take nothing by his action as to that note, is not a final order or judgment to which a writ of error will lie. Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913).

    Decree refusing relief until further legislation. —

    A decree which declines to grant the relief prayed until the legislature enacts a further law on the subject, is not a final decree, nor does it adjudicate the principles of the cause. From it no appeal lies. If a decision is desired, the proper remedy is by mandamus to compel the trial court to hear and determine the cause. Board of Supvrs. v. City Council, 95 Va. 469 , 28 S.E. 882 , 1898 Va. LEXIS 2 (1898).

    Order directing an issue out of chancery. —

    No appeal will lie from a decree in a chancery cause directing an issue to be tried at the bar of the court to ascertain what amount of money, if any, was due from the appellee to the appellant. The appeal does not fall within the provisions of this section, and must be dismissed as having improvidently awarded. Moore v. Lipscombe, 82 Va. 546 , 1886 Va. LEXIS 71 (1886).

    A decree disallowing and rejecting defendant’s plea of a prior suit pending and requiring defendant to answer does not make any disposition of the prior suit. Nor is it in any sense a decree adjudicating the principles of the cause. The finality of such a decree must be tested by its effect upon the rights of the parties in the instant case, and not in the other suit pending. Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925).

    Action of trial court in setting aside a default judgment and ordering defendant to file its grounds of defense within three weeks, was not a final order, so that the writ of error was improvidently awarded and must be dismissed. Hatke v. Globe Indem. Co., 167 Va. 184 , 188 S.E. 164 , 1936 Va. LEXIS 290 (1936)(see).Massanutten Bank v. Glaize, 177 Va. 519 , 14 S.E.2d 285, 1941 Va. LEXIS 238 (1941).

    3.Jurisdiction in Special Matters.
    a.Condemnation Proceedings.

    Claim for interest allowed in condemnation proceedings. —

    It is manifest that where interest is allowed it constitutes a part of the just compensation which must be paid by the condemnor, in order to secure the property desired, and involves a matter concerning the condemnation of property within the meaning of this section. City of Richmond v. Goodwyn, 132 Va. 442 , 112 S.E. 787 , 1922 Va. LEXIS 38 (1922).

    b.Controversies Touching Probate of a Will.

    Degree of finality required. —

    It is not every order of a court in a cause, however incidental such order may be, that will in good sense and wise policy, warrant an appellate proceeding, in order to correct an apprehended error therein, and such proceeding must probably be confined to those orders which have about them a certain character of finality and conclusiveness, either in respect to the general merits of the cause, or in respect to some branch thereof, or of some matter collateral thereto, and yet of great interest to the parties, or to one of them. Tucker v. Sandridge, 82 Va. 532 , 1886 Va. LEXIS 68 (1886).

    Order setting aside verdict and ordering new trial not appealable. —

    This section is to be considered along with § 64.1-83 [now see § 64.2-446 ], so that an appeal will not be allowed from any order, but only from a final order or sentence, so that an appeal allowed to the order of a circuit court setting aside the verdict of a jury against a will and awarding a new trial will be dismissed as improvidently awarded. Tucker v. Sandridge, 82 Va. 532 , 1886 Va. LEXIS 68 (1886).

    c.Controversies Touching Mills, Roadways, Ferries or Landings.

    Legislature has right to limit appeals under the general road law. —

    While it is true that under the general road law there is an unrestricted appeal to the Supreme Court, it is within the power of the legislature, by special enactment, to limit that right to judicial questions only. Wilburn v. Raines, 111 Va. 334 , 68 S.E. 993 , 1910 Va. LEXIS 50 (1910).

    Action for damages by mill limited by § 8.01-672 on appeal. —

    In an action on the case for consequential damages, occasioned by the erection of a mill, if the damages recovered be less than one hundred dollars (now $500) the defendant cannot appeal to the Supreme Court, notwithstanding it appears from the record that the right to erect the mill was drawn in question. Skipwith v. Young, 19 Va. (5 Munf) 276, 1816 Va. LEXIS 46 (1816).

    d.Right to Levy Tolls or Taxes.

    Reason for subdivision A 1 f. —

    The dominating reason which impelled the adoption of the provision conferring jurisdiction upon the Supreme Court to review any judgment involving the right of the State or any of its subdivisions to levy a tax, etc., was to insure uniform construction of such laws to serve as a guide to officers collecting taxes as well as to property owners. City of Richmond v. Eubank, 179 Va. 70 , 18 S.E.2d 397, 1942 Va. LEXIS 200 (1942).

    Liberal interpretation of subdivision A 1 f requires an expansion of the meaning of this jurisdictional provision to meet those cases which are clearly within the spirit or reason of the law, provided such an interpretation is not inconsistent with the language used. Hampton Rds. San. Dist. Comm'n v. Smith, 193 Va. 371 , 68 S.E.2d 497, 1952 Va. LEXIS 145 (1952).

    Subdivision authorizes appeal by sanitation district. —

    A sanitation district has the general and usual attributes of a municipal corporation, and hence is within the sphere of the legislative intent as expressed in subdivision A 1 f of this section. Hampton Rds. San. Dist. Comm'n v. Smith, 193 Va. 371 , 68 S.E.2d 497, 1952 Va. LEXIS 145 (1952)(see).Farquhar v. Board of Supvrs., 196 Va. 54 , 82 S.E.2d 577, 1954 Va. LEXIS 201 (1954).

    Right of city to tax bonds is appealable. —

    A question involving the right of a city to tax certain bonds is within the jurisdiction of the Supreme Court, regardless of the amount of the tax. City of Staunton v. Stout's Ex'rs, 86 Va. 321 , 10 S.E. 5 , 1889 Va. LEXIS 43 (1889).

    As is motion to recover payroll taxes. —

    A motion for judgment by the Unemployment Compensation Commission to recover payroll taxes was a controversy concerning the right of the State to levy tolls or taxes, or was one involving the construction of a statute imposing taxes, and came squarely within the jurisdiction of the Supreme Court as defined in this section. Unemployment Comp. Comm'n v. Harvey, 179 Va. 202 , 18 S.E.2d 390, 1942 Va. LEXIS 212 (1942).

    But judgment against town for shutting off water is not. —

    In a suit for damages caused by the action of a town in shutting off the water from the plaintiff’s hotel for nonpayment of a water bill, it was held that the record presented no controversy concerning the right of the town to levy toll or taxes, and since the judgment was for less than $300 (now $500) the Supreme Court had no jurisdiction of the cause. Town of Colonial Beach v. De Atley, 154 Va. 451 , 153 S.E. 734 , 1930 Va. LEXIS 228 (1930).

    Nor judgment where ordinance has been declared void. —

    Where ordinance imposing sewer tax had been declared void, there was no ordinance in force within the purview of this section to be construed, and the Supreme Court had no jurisdiction of an action for the refund of $109.32 paid as sewer taxes under such ordinance. City of Richmond v. Eubank, 179 Va. 70 , 18 S.E.2d 397, 1942 Va. LEXIS 200 (1942).

    e.Controversies Touching Constitutionality of a Law.

    The appellate jurisdiction of the Supreme Court is not determined by the value of the subject matter in controversy, in cases “involving the constitutionality of law.” Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626 , 59 S.E. 476 , 1907 Va. LEXIS 80 (1907); Norfolk & W.R.R. v. Pendleton, 86 Va. 1004 , 11 S.E. 1062 , 1890 Va. LEXIS 78 (1890), aff'd, 156 U.S. 667, 15 S. Ct. 413, 39 L. Ed. 574, 1895 U.S. LEXIS 2172 (1895).

    Any proceeding which necessarily puts the validity of a law in issue, whether it be by plea, instruction, or otherwise, is sufficient to give the Supreme Court jurisdiction of the case. Adkins & Co. v. City of Richmond, 98 Va. 91 , 34 S.E. 967 , 1900 Va. LEXIS 13 (1900).

    When constitutionality is already established, there is no jurisdiction. —

    Where the only ground of jurisdiction of the Supreme Court is the constitutionality of a statute, the validity of which has been established by former decisions, the writ of error will be dismissed for want of jurisdiction. Western Union Tel. Co. v. White, 113 Va. 421 , 74 S.E. 174 , 1912 Va. LEXIS 51 (1912).

    Error committed in the construction and interpretation of a statute will not of itself confer jurisdiction, but the constitutionality of the statute, as distinguished from its interpretation, is the source of appellate jurisdiction. Hulvey v. Roberts, 106 Va. 189 , 55 S.E. 585 , 1906 Va. LEXIS 120 (1906); Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626 , 59 S.E. 476 , 1907 Va. LEXIS 80 (1907).

    No direct appeal from justice’s judgment. —

    No appeal lies directly to the Supreme Court from a judgment of a justice of the peace involving the constitutionality of a law. Southern Ry. v. Hill, 106 Va. 501 , 56 S.E. 278 , 1907 Va. LEXIS 112 (1907).

    But there were means for an indirect appeal to the Supreme Court from the judgment of a justice involving the constitutionality of a statute. Southern Ry. v. Hill, 106 Va. 501 , 56 S.E. 278 , 1907 Va. LEXIS 112 (1907).

    f.Writs.

    Controversy involving title to office appealable. —

    When the subject matter of a controversy is title to an office, not matter merely pecuniary, an order of a judge of the circuit court is final, and, under the provisions of this section and § 8.01-671 , a writ of error will lie. Watkins v. Venable, 99 Va. 440 , 39 S.E. 147 , 1901 Va. LEXIS 63 (1901).

    Writs of error in mandamus proceedings. —

    The Supreme Court has jurisdiction under Va. Const., Art. VI, § 1, and the laws passed in pursuance thereof, of writs of error in proceedings by mandamus, although the amount involved is less than the jurisdictional amount. A mandamus, in a proper case, always involves some matter not merely pecuniary. The Constitution does not proprio vigore confer the jurisdiction, but this section and §§ 8.01-671 and 8.01-672 carry into effect the constitutional provision. Price v. Smith, 93 Va. 14 , 24 S.E. 474 , 1896 Va. LEXIS 46 (1896).

    Action compellable by mandamus not appealable. —

    An action which can certainly be compelled by mandamus cannot be appealed from. Richmond Cedar Works & Liberty Mut. Ins. Co. v. Harper, 129 Va. 481 , 106 S.E. 516 , 1921 Va. LEXIS 111 (1921).

    b.Controversies Touching Probate of a Will.

    Degree of finality required. —

    It is not every order of a court in a cause, however incidental such order may be, that will in good sense and wise policy, warrant an appellate proceeding, in order to correct an apprehended error therein, and such proceeding must probably be confined to those orders which have about them a certain character of finality and conclusiveness, either in respect to the general merits of the cause, or in respect to some branch thereof, or of some matter collateral thereto, and yet of great interest to the parties, or to one of them. Tucker v. Sandridge, 82 Va. 532 , 1886 Va. LEXIS 68 (1886).

    Order setting aside verdict and ordering new trial not appealable. —

    This section is to be considered along with § 64.1-83 [now see § 64.2-446 ], so that an appeal will not be allowed from any order, but only from a final order or sentence, so that an appeal allowed to the order of a circuit court setting aside the verdict of a jury against a will and awarding a new trial will be dismissed as improvidently awarded. Tucker v. Sandridge, 82 Va. 532 , 1886 Va. LEXIS 68 (1886).

    c.Controversies Touching Mills, Roadways, Ferries or Landings.

    Legislature has right to limit appeals under the general road law. —

    While it is true that under the general road law there is an unrestricted appeal to the Supreme Court, it is within the power of the legislature, by special enactment, to limit that right to judicial questions only. Wilburn v. Raines, 111 Va. 334 , 68 S.E. 993 , 1910 Va. LEXIS 50 (1910).

    Action for damages by mill limited by § 8.01-672 on appeal. —

    In an action on the case for consequential damages, occasioned by the erection of a mill, if the damages recovered be less than one hundred dollars (now $500) the defendant cannot appeal to the Supreme Court, notwithstanding it appears from the record that the right to erect the mill was drawn in question. Skipwith v. Young, 19 Va. (5 Munf) 276, 1816 Va. LEXIS 46 (1816).

    d.Right to Levy Tolls or Taxes.

    Reason for subdivision A 1 f. —

    The dominating reason which impelled the adoption of the provision conferring jurisdiction upon the Supreme Court to review any judgment involving the right of the State or any of its subdivisions to levy a tax, etc., was to insure uniform construction of such laws to serve as a guide to officers collecting taxes as well as to property owners. City of Richmond v. Eubank, 179 Va. 70 , 18 S.E.2d 397, 1942 Va. LEXIS 200 (1942).

    Liberal interpretation of subdivision A 1 f requires an expansion of the meaning of this jurisdictional provision to meet those cases which are clearly within the spirit or reason of the law, provided such an interpretation is not inconsistent with the language used. Hampton Rds. San. Dist. Comm'n v. Smith, 193 Va. 371 , 68 S.E.2d 497, 1952 Va. LEXIS 145 (1952).

    Subdivision authorizes appeal by sanitation district. —

    A sanitation district has the general and usual attributes of a municipal corporation, and hence is within the sphere of the legislative intent as expressed in subdivision A 1 f of this section. Hampton Rds. San. Dist. Comm'n v. Smith, 193 Va. 371 , 68 S.E.2d 497, 1952 Va. LEXIS 145 (1952)(see).Farquhar v. Board of Supvrs., 196 Va. 54 , 82 S.E.2d 577, 1954 Va. LEXIS 201 (1954).

    Right of city to tax bonds is appealable. —

    A question involving the right of a city to tax certain bonds is within the jurisdiction of the Supreme Court, regardless of the amount of the tax. City of Staunton v. Stout's Ex'rs, 86 Va. 321 , 10 S.E. 5 , 1889 Va. LEXIS 43 (1889).

    As is motion to recover payroll taxes. —

    A motion for judgment by the Unemployment Compensation Commission to recover payroll taxes was a controversy concerning the right of the State to levy tolls or taxes, or was one involving the construction of a statute imposing taxes, and came squarely within the jurisdiction of the Supreme Court as defined in this section. Unemployment Comp. Comm'n v. Harvey, 179 Va. 202 , 18 S.E.2d 390, 1942 Va. LEXIS 212 (1942).

    But judgment against town for shutting off water is not. —

    In a suit for damages caused by the action of a town in shutting off the water from the plaintiff’s hotel for nonpayment of a water bill, it was held that the record presented no controversy concerning the right of the town to levy toll or taxes, and since the judgment was for less than $300 (now $500) the Supreme Court had no jurisdiction of the cause. Town of Colonial Beach v. De Atley, 154 Va. 451 , 153 S.E. 734 , 1930 Va. LEXIS 228 (1930).

    Nor judgment where ordinance has been declared void. —

    Where ordinance imposing sewer tax had been declared void, there was no ordinance in force within the purview of this section to be construed, and the Supreme Court had no jurisdiction of an action for the refund of $109.32 paid as sewer taxes under such ordinance. City of Richmond v. Eubank, 179 Va. 70 , 18 S.E.2d 397, 1942 Va. LEXIS 200 (1942).

    e.Controversies Touching Constitutionality of a Law.

    The appellate jurisdiction of the Supreme Court is not determined by the value of the subject matter in controversy, in cases “involving the constitutionality of law.” Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626 , 59 S.E. 476 , 1907 Va. LEXIS 80 (1907); Norfolk & W.R.R. v. Pendleton, 86 Va. 1004 , 11 S.E. 1062 , 1890 Va. LEXIS 78 (1890), aff'd, 156 U.S. 667, 15 S. Ct. 413, 39 L. Ed. 574, 1895 U.S. LEXIS 2172 (1895).

    Any proceeding which necessarily puts the validity of a law in issue, whether it be by plea, instruction, or otherwise, is sufficient to give the Supreme Court jurisdiction of the case. Adkins & Co. v. City of Richmond, 98 Va. 91 , 34 S.E. 967 , 1900 Va. LEXIS 13 (1900).

    When constitutionality is already established, there is no jurisdiction. —

    Where the only ground of jurisdiction of the Supreme Court is the constitutionality of a statute, the validity of which has been established by former decisions, the writ of error will be dismissed for want of jurisdiction. Western Union Tel. Co. v. White, 113 Va. 421 , 74 S.E. 174 , 1912 Va. LEXIS 51 (1912).

    Error committed in the construction and interpretation of a statute will not of itself confer jurisdiction, but the constitutionality of the statute, as distinguished from its interpretation, is the source of appellate jurisdiction. Hulvey v. Roberts, 106 Va. 189 , 55 S.E. 585 , 1906 Va. LEXIS 120 (1906); Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626 , 59 S.E. 476 , 1907 Va. LEXIS 80 (1907).

    No direct appeal from justice’s judgment. —

    No appeal lies directly to the Supreme Court from a judgment of a justice of the peace involving the constitutionality of a law. Southern Ry. v. Hill, 106 Va. 501 , 56 S.E. 278 , 1907 Va. LEXIS 112 (1907).

    But there were means for an indirect appeal to the Supreme Court from the judgment of a justice involving the constitutionality of a statute. Southern Ry. v. Hill, 106 Va. 501 , 56 S.E. 278 , 1907 Va. LEXIS 112 (1907).

    f.Writs.

    Controversy involving title to office appealable. —

    When the subject matter of a controversy is title to an office, not matter merely pecuniary, an order of a judge of the circuit court is final, and, under the provisions of this section and § 8.01-671 , a writ of error will lie. Watkins v. Venable, 99 Va. 440 , 39 S.E. 147 , 1901 Va. LEXIS 63 (1901).

    Writs of error in mandamus proceedings. —

    The Supreme Court has jurisdiction under Va. Const., Art. VI, § 1, and the laws passed in pursuance thereof, of writs of error in proceedings by mandamus, although the amount involved is less than the jurisdictional amount. A mandamus, in a proper case, always involves some matter not merely pecuniary. The Constitution does not proprio vigore confer the jurisdiction, but this section and §§ 8.01-671 and 8.01-672 carry into effect the constitutional provision. Price v. Smith, 93 Va. 14 , 24 S.E. 474 , 1896 Va. LEXIS 46 (1896).

    Action compellable by mandamus not appealable. —

    An action which can certainly be compelled by mandamus cannot be appealed from. Richmond Cedar Works & Liberty Mut. Ins. Co. v. Harper, 129 Va. 481 , 106 S.E. 516 , 1921 Va. LEXIS 111 (1921).

    4.Interlocutory Decrees.
    a.In General.

    Interlocutory decrees are sometimes appealable. Armstrong v. Bryant, 189 Va. 760 , 55 S.E.2d 5, 1949 Va. LEXIS 215 (1949).

    Jurisdiction purely statutory. —

    The jurisdiction of the Supreme Court in relation to appeals from interlocutory decrees is purely statutory. Lancaster v. Lancaster, 86 Va. 201 , 9 S.E. 988 , 1889 Va. LEXIS 26 (1889).

    The appellate court in the absence of statute has no jurisdiction of an appeal from an interlocutory decree. Hobson v. Hobson, 105 Va. 394 , 53 S.E. 964 , 1906 Va. LEXIS 44 (1906); Smiley v. Provident Life & Trust Co., 106 Va. 787 , 56 S.E. 728 , 1907 Va. LEXIS 147 (1907).

    Every decree which leaves anything in the cause to be done by the court is interlocutory as between the parties remaining in the court. Dearing v. Walter, 175 Va. 555 , 9 S.E.2d 336, 1940 Va. LEXIS 200 (1940).

    Right of appeal optional. —

    By virtue of this section a party is given the right to appeal from certain interlocutory decrees if he desires to do so. Hess v. Hess, 108 Va. 483 , 62 S.E. 273 , 1908 Va. LEXIS 57 (1908)(see also).Southern Ry. v. Glenn's Adm'r, 98 Va. 309 , 36 S.E. 395 , 1900 Va. LEXIS 44 (1900).

    In chancery only. —

    Only in a case in chancery is a party authorized to appeal from a decree or order which is not final, and then only from such decree or order as the law prescribes. Elder v. Harris, 75 Va. 68 , 1880 Va. LEXIS 6 (1880).

    Orders as to joinder or substitution of parties generally not appealable. —

    As a general rule interlocutory decrees or orders overruling motions as to joinder of parties, or a substitution of parties, are not appealable. Thrasher v. Lustig, 204 Va. 399 , 131 S.E.2d 286, 1963 Va. LEXIS 163 (1963).

    b.Decree or Order as to Dissolution of Injunction.

    Appeal or rehearing. —

    Where complainants were dissatisfied or aggrieved by an order of the chancellor dissolving the injunction, their plain remedy, as prescribed by this section, was by appeal, or by application to the chancellor for a rehearing and reinstatement of the injunction, upon notice to the defendant; and, if that had been denied, they could have appealed from that denial. Fredenheim v. Rohr, 87 Va. 764 , 13 S.E. 193 , 1891 Va. LEXIS 127 (1891)(see also).Randolph v. Randolph, 27 Va. (6 Rand.) 194, 1828 Va. LEXIS 14 (1828).

    The right of appeal from an order refusing to dissolve an injunction seems to be settled in this State, and is placed on the ground that it adjudicates the principles of the cause. Lynch v. Clinch Motor Co., 131 Va. 202 , 108 S.E. 641 , 1921 Va. LEXIS 16 (1921).

    Jurisdictional amount must be involved. —

    No appeal lies from a decree dissolving an injunction where the subject involved is pecuniary, and is of less amount than $350 (now $500). The right of appeal given by this section is limited by § 8.01-672 . Shoemaker v. Bowman, 98 Va. 688 , 37 S.E. 278 , 1900 Va. LEXIS 94 (1900).

    Refusal to reinstate injunction. —

    An appeal lies from the refusal of a chancellor to reinstate an injunction. Webster v. Couch, 27 Va. (6 Rand.) 519, 1828 Va. LEXIS 30 (1828).

    Effect of § 8.01-626 . —

    The right of appeal given by this section is the same in a case for equitable relief by injunction as in other equity cases, and this right is not taken away by § 8.01-626 . French v. Chapin-Sacks Mfg. Co., 118 Va. 117 , 86 S.E. 842 , 1915 Va. LEXIS 129 (1915).

    c.Decree or Order Requiring Possession or Title of Property to Be Changed.

    Decree appointing a receiver is appealable. —

    A decree appointing a receiver to take charge of the assets of an insolvent association is appealable under this section, as it requires the possession of property to be changed. Deckert v. Chesapeake W. Co., 101 Va. 804 , 45 S.E. 799 , 1903 Va. LEXIS 91 (1903).

    Where property is in the hands of receivers of another court, a direction to the local receiver to intervene in that court and apply for the possession, and to take and receive the property from the receivers of that court is a sufficient change in possession and control to warrant an appeal to this court. Virginia Passenger & Power Co. v. Fisher, 104 Va. 121 , 51 S.E. 198 , 1905 Va. LEXIS 78 (1905).

    Decree for sale of land in partition is appealable. —

    A decree for the sale of land in a partition suit, though interlocutory, is appealable under this section, as it requires change of title and possession. This is especially true where the decree settles the principles of the cause. Stevens v. McCormick, 90 Va. 735 , 19 S.E. 742 , 1894 Va. LEXIS 55 (1894).

    Decree or order requiring money to be paid. —

    See Elder v. Harris, 75 Va. 68 , 1880 Va. LEXIS 6 (1880); Lancaster v. Lancaster, 86 Va. 201 , 9 S.E. 988 , 1889 Va. LEXIS 26 (1889); Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    d.Decree or Order Adjudicating Principles of Cause.

    “The principles of the cause” defined. —

    It must refer to principles which affect the subject of the litigation and the rules by which the court will determine the rights of the parties in the particular suit. It must mean that the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to apply those rules or methods to the facts of the case, in order to ascertain the relative rights of the parties with regard to the subject matter of the suit. Lancaster v. Lancaster, 86 Va. 201 , 9 S.E. 988 , 1889 Va. LEXIS 26 (1889); Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925).

    The phrase refers to principles which affect the subject matter of the litigation and the rules by which the rights of the parties to the suit are to be finally determined. Thrasher v. Lustig, 204 Va. 399 , 131 S.E.2d 286, 1963 Va. LEXIS 163 (1963).

    This clause is not applicable to judgments at law. —

    This section, providing for an appeal from an interlocutory decree in equity “adjudicating the principles of a cause” does not apply to judgments at law, which, under the plain terms of the section, must be final to be appealable. Baber v. Page, 137 Va. 489 , 120 S.E. 137 , 1923 Va. LEXIS 173 (1923).

    Under this clause it is immaterial whether a decree is technically a final decree. —

    An appeal will lie to the Supreme Court from a decree adjudicating the principles of a cause, although the same may not be a final decree, and an appeal also lies from a final decree. So that a party may appeal at once from a decree settling the principles in a cause against him, or he may, at his option, await the final decree in the cause and then appeal. Harper v. Vaughan, 87 Va. 426 , 12 S.E. 785 , 1891 Va. LEXIS 87 (1891).

    Decree as to validity of deed is appealable. —

    Where a decree decides that the deed attacked by the bill as fraudulent per se is not so, thus overruling one of the grounds on which relief is prayed for in the bill, it adjudicates, to a certain extent, the principles of the cause, and is therefore an appealable order. Norris v. Lake, 89 Va. 513 , 16 S.E. 663 , 1893 Va. LEXIS 66 (1893).

    Also an order overruling exceptions to answer. —

    In a suit to determine whether certain gifts from a parent to a child and her husband were gifts or advancements, an order overruling plaintiff’s exceptions to defendants’ answer, which decided against the plaintiff a very important question to him, namely, the right to the relief sought by his bill of a discovery by the defendants of all sums of money or property received by them or either of them from the decedent, determined a rule of evidence by which the rights of the parties were to be finally worked out and adjudicated a “principle of the cause,” and, hence, is appealable. Johnson v. Mundy, 123 Va. 730 , 97 S.E. 564 , 1918 Va. LEXIS 63 (1918).

    And decree denying injunction. —

    Where the court and the parties understood that the case was submitted for a decree upon the merits, no further proof being contemplated, and the court took the case “for final determination” pursuant to an agreed decree formerly entered in the cause, a decree that the complainant was not entitled to the injunction prayed for necessarily adjudicated the principles of the cause, and was clearly appealable under this section, notwithstanding that through inadvertence or otherwise the decree failed to dismiss the bill at complainant’s cost. Clintwood Coal Corp. v. Turner, 133 Va. 464 , 114 S.E. 117 , 1922 Va. LEXIS 110 (1922).

    Decree overruling plea that plaintiff was not real party in interest is not appealable. —

    A decree overruling defendant’s plea that plaintiff was not the real party in interest did not adjudicate the principles of the cause and hence was not appealable. Thrasher v. Lustig, 204 Va. 399 , 131 S.E.2d 286, 1963 Va. LEXIS 163 (1963).

    Nor is a decree as to sufficiency of supplemental pleading. —

    A decree which merely passed upon the sufficiency of a supplemental pleading, and dismissed it, is not an interlocutory decree adjudicating the principles of the cause from which an appeal lies, under this section. Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    b.Decree or Order as to Dissolution of Injunction.

    Appeal or rehearing. —

    Where complainants were dissatisfied or aggrieved by an order of the chancellor dissolving the injunction, their plain remedy, as prescribed by this section, was by appeal, or by application to the chancellor for a rehearing and reinstatement of the injunction, upon notice to the defendant; and, if that had been denied, they could have appealed from that denial. Fredenheim v. Rohr, 87 Va. 764 , 13 S.E. 193 , 1891 Va. LEXIS 127 (1891)(see also).Randolph v. Randolph, 27 Va. (6 Rand.) 194, 1828 Va. LEXIS 14 (1828).

    The right of appeal from an order refusing to dissolve an injunction seems to be settled in this State, and is placed on the ground that it adjudicates the principles of the cause. Lynch v. Clinch Motor Co., 131 Va. 202 , 108 S.E. 641 , 1921 Va. LEXIS 16 (1921).

    Jurisdictional amount must be involved. —

    No appeal lies from a decree dissolving an injunction where the subject involved is pecuniary, and is of less amount than $350 (now $500). The right of appeal given by this section is limited by § 8.01-672 . Shoemaker v. Bowman, 98 Va. 688 , 37 S.E. 278 , 1900 Va. LEXIS 94 (1900).

    Refusal to reinstate injunction. —

    An appeal lies from the refusal of a chancellor to reinstate an injunction. Webster v. Couch, 27 Va. (6 Rand.) 519, 1828 Va. LEXIS 30 (1828).

    Effect of § 8.01-626 . —

    The right of appeal given by this section is the same in a case for equitable relief by injunction as in other equity cases, and this right is not taken away by § 8.01-626 . French v. Chapin-Sacks Mfg. Co., 118 Va. 117 , 86 S.E. 842 , 1915 Va. LEXIS 129 (1915).

    c.Decree or Order Requiring Possession or Title of Property to Be Changed.

    Decree appointing a receiver is appealable. —

    A decree appointing a receiver to take charge of the assets of an insolvent association is appealable under this section, as it requires the possession of property to be changed. Deckert v. Chesapeake W. Co., 101 Va. 804 , 45 S.E. 799 , 1903 Va. LEXIS 91 (1903).

    Where property is in the hands of receivers of another court, a direction to the local receiver to intervene in that court and apply for the possession, and to take and receive the property from the receivers of that court is a sufficient change in possession and control to warrant an appeal to this court. Virginia Passenger & Power Co. v. Fisher, 104 Va. 121 , 51 S.E. 198 , 1905 Va. LEXIS 78 (1905).

    Decree for sale of land in partition is appealable. —

    A decree for the sale of land in a partition suit, though interlocutory, is appealable under this section, as it requires change of title and possession. This is especially true where the decree settles the principles of the cause. Stevens v. McCormick, 90 Va. 735 , 19 S.E. 742 , 1894 Va. LEXIS 55 (1894).

    Decree or order requiring money to be paid. —

    See Elder v. Harris, 75 Va. 68 , 1880 Va. LEXIS 6 (1880); Lancaster v. Lancaster, 86 Va. 201 , 9 S.E. 988 , 1889 Va. LEXIS 26 (1889); Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    d.Decree or Order Adjudicating Principles of Cause.

    “The principles of the cause” defined. —

    It must refer to principles which affect the subject of the litigation and the rules by which the court will determine the rights of the parties in the particular suit. It must mean that the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to apply those rules or methods to the facts of the case, in order to ascertain the relative rights of the parties with regard to the subject matter of the suit. Lancaster v. Lancaster, 86 Va. 201 , 9 S.E. 988 , 1889 Va. LEXIS 26 (1889); Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925).

    The phrase refers to principles which affect the subject matter of the litigation and the rules by which the rights of the parties to the suit are to be finally determined. Thrasher v. Lustig, 204 Va. 399 , 131 S.E.2d 286, 1963 Va. LEXIS 163 (1963).

    This clause is not applicable to judgments at law. —

    This section, providing for an appeal from an interlocutory decree in equity “adjudicating the principles of a cause” does not apply to judgments at law, which, under the plain terms of the section, must be final to be appealable. Baber v. Page, 137 Va. 489 , 120 S.E. 137 , 1923 Va. LEXIS 173 (1923).

    Under this clause it is immaterial whether a decree is technically a final decree. —

    An appeal will lie to the Supreme Court from a decree adjudicating the principles of a cause, although the same may not be a final decree, and an appeal also lies from a final decree. So that a party may appeal at once from a decree settling the principles in a cause against him, or he may, at his option, await the final decree in the cause and then appeal. Harper v. Vaughan, 87 Va. 426 , 12 S.E. 785 , 1891 Va. LEXIS 87 (1891).

    Decree as to validity of deed is appealable. —

    Where a decree decides that the deed attacked by the bill as fraudulent per se is not so, thus overruling one of the grounds on which relief is prayed for in the bill, it adjudicates, to a certain extent, the principles of the cause, and is therefore an appealable order. Norris v. Lake, 89 Va. 513 , 16 S.E. 663 , 1893 Va. LEXIS 66 (1893).

    Also an order overruling exceptions to answer. —

    In a suit to determine whether certain gifts from a parent to a child and her husband were gifts or advancements, an order overruling plaintiff’s exceptions to defendants’ answer, which decided against the plaintiff a very important question to him, namely, the right to the relief sought by his bill of a discovery by the defendants of all sums of money or property received by them or either of them from the decedent, determined a rule of evidence by which the rights of the parties were to be finally worked out and adjudicated a “principle of the cause,” and, hence, is appealable. Johnson v. Mundy, 123 Va. 730 , 97 S.E. 564 , 1918 Va. LEXIS 63 (1918).

    And decree denying injunction. —

    Where the court and the parties understood that the case was submitted for a decree upon the merits, no further proof being contemplated, and the court took the case “for final determination” pursuant to an agreed decree formerly entered in the cause, a decree that the complainant was not entitled to the injunction prayed for necessarily adjudicated the principles of the cause, and was clearly appealable under this section, notwithstanding that through inadvertence or otherwise the decree failed to dismiss the bill at complainant’s cost. Clintwood Coal Corp. v. Turner, 133 Va. 464 , 114 S.E. 117 , 1922 Va. LEXIS 110 (1922).

    Decree overruling plea that plaintiff was not real party in interest is not appealable. —

    A decree overruling defendant’s plea that plaintiff was not the real party in interest did not adjudicate the principles of the cause and hence was not appealable. Thrasher v. Lustig, 204 Va. 399 , 131 S.E.2d 286, 1963 Va. LEXIS 163 (1963).

    Nor is a decree as to sufficiency of supplemental pleading. —

    A decree which merely passed upon the sufficiency of a supplemental pleading, and dismissed it, is not an interlocutory decree adjudicating the principles of the cause from which an appeal lies, under this section. Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    D.Who May Appeal.
    1.In General.

    The “person” referred to in this section is the person who was a party to the suit in the court below, and who was aggrieved by the decree therein rendered. In order to render one a proper party to an appeal these two circumstances must concur. Southern Ry. v. Glenn's Adm'r, 102 Va. 529 , 46 S.E. 776 , 1904 Va. LEXIS 99 (1904).

    A person who is not a party to the proceeding in which the judgment of the court below complained of was rendered cannot obtain a supersedeas to such judgment. Board of Supvrs. v. Gorrell, 61 Va. (20 Gratt.) 419, 61 Va. (20 Gratt.) 484, 1871 Va. LEXIS 13 (1871); Ex parte Lester, 77 Va. 663 , 1883 Va. LEXIS 103 (1883).

    The “person” granted the right to appeal from a decree is one who is “aggrieved” thereby. Shocket v. Silberman, 209 Va. 490 , 165 S.E.2d 414, 1969 Va. LEXIS 131 (1969).

    Or one entitled to be party, but rejected when he attempts to intervene. —

    A litigant who seeks to become a party, and is entitled to become a party to proceedings in which he is interested, and is erroneously rejected, should not be required to seek relief in a roundabout fashion by a distinct and separate suit, but should be regarded, for the purposes of appeal, as possessing the status of one who is a formal party to the proceedings in which his rights and interests are being litigated. Jones v. Rhea, 130 Va. 345 , 107 S.E. 814 , 1921 Va. LEXIS 160 (1921).

    Where a person was not a party to the proceeding, did not ask that he be made a party, or assert any interest therein, he is not a “person interested” or a “party in interest” in, or a “party aggrieved” by, an order. Young v. SCC, 205 Va. 111 , 135 S.E.2d 129, 1964 Va. LEXIS 152 (1964).

    A writ of error cannot be awarded to a person who is dead, and, if inadvertently done, the writ will be dismissed, but a new writ may be applied for by his representative. Jackson v. Wickham, 112 Va. 128 , 70 S.E. 539 , 1911 Va. LEXIS 61 (1911).

    But personal representative of deceased party may appeal. Jackson v. Wickham, 112 Va. 128 , 70 S.E. 539 , 1911 Va. LEXIS 61 (1911); Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).

    And purchaser, but not bidder, at judicial sale is party. —

    There is a wide distinction between a bidder at a judicial sale and a purchaser. Until confirmed by the court the sale confers no rights. A bid is a mere offer. The purchaser becomes a quasi-party. Roberts v. Roberts, 54 Va. (13 Gratt.) 639, 1857 Va. LEXIS 24 (1857); Hildreth v. Turner, 89 Va. 858 , 17 S.E. 471 , 1893 Va. LEXIS 113 (1893).

    Assignee has rights of the assignor to appeal. —

    Where land subject to a mechanics’ lien is conveyed to a third party, such assignee has a right to prosecute an appeal in the name of his assignor from a decree holding the land subject to the lien. Hendricks v. Fields, 67 Va. (26 Gratt.) 447, 1875 Va. LEXIS 29 (1875).

    Infants appeal by guardian ad litem or next friend. —

    A guardian ad litem may appeal in the names of the infants, by himself as such guardian, from a decree adverse to their interests, but if he fails to do so, the infants may appeal by someone as their next friend. Givens v. Clem, 107 Va. 435 , 59 S.E. 413 , 1907 Va. LEXIS 60 (1907).

    Because one party cannot appeal does not prevent others. —

    The fact that a receiver appointed by a court cannot appeal from the judgment of that court, will not prevent the other party or parties to the action from appealing. Melendy v. Barbour, 78 Va. 544 , 1884 Va. LEXIS 29 (1884).

    An amicus curiae cannot appeal. Dunlop v. Commonwealth, 6 Va. (2 Call) 284, 1800 Va. LEXIS 21 (1800); Board of Supvrs. v. Gorrell, 61 Va. (20 Gratt.) 419, 61 Va. (20 Gratt.) 484, 1871 Va. LEXIS 13 (1871).

    2.Must Be Aggrieved.
    a.General Rule.

    In order that an appeal may be successfully prosecuted, it must be shown that the appellant has been aggrieved. Rowland v. Rowland, 104 Va. 673 , 52 S.E. 366 , 1905 Va. LEXIS 149 (1905); Brown v. Howard, 106 Va. 262 , 55 S.E. 682 , 1906 Va. LEXIS 130 (1906).

    An appellant must have been aggrieved by the decree appealed from or he has no standing in the Supreme Court. Stone v. Henderson, 182 Va. 648 , 29 S.E.2d 845, 1944 Va. LEXIS 216 (1944).

    Under this section there can be no appeal, unless the party seeking same is a party to the suit and has been aggrieved by the decree entered. These two circumstances must be made to appear. Snavely v. Snavely, 151 Va. 270 , 144 S.E. 422 , 1928 Va. LEXIS 230 (1928).

    In order to entitle any person to a writ of error, or an appeal, he must be aggrieved by the judgment or decree. Edmunds v. Scott, 78 Va. 720 , 1884 Va. LEXIS 45 (1884); Osborne v. Kammer, 96 Va. 228 , 31 S.E. 19 , 1898 Va. LEXIS 81 (1898)(see also).Ex parte Lester, 77 Va. 663 , 1883 Va. LEXIS 103 (1883).

    Petitioner must be aggrieved in some particular manner. —

    In an action against a municipal body or officer, in order that the petitioners may be aggrieved by a judgment in contemplation of this section it must affirmatively appear that they had some direct interest in the subject matter of such proceeding. Any indirect interest they may have had solely as residents and taxpayers is not sufficient to make them proper parties to such proceeding, and they could not be aggrieved by the judgment rendered therein. It is not sufficient that the interest of such petitioner is merely that of any other taxpayer or resident, but it must be shown that the petitioner is aggrieved in some manner peculiar unto himself, aside and apart from that of other taxpayers and residents. Nicholas v. Lawrence, 161 Va. 589 , 171 S.E. 673 , 1933 Va. LEXIS 348 (1933).

    b.Application of Rule.

    Special commissioner not aggrieved. —

    A special commissioner appointed to make sale of land, cannot appeal from a decree setting aside the decree of sale. So far as it affects him in his capacity of commissioner, the setting aside of a decree of sale is not an appealable grievance within the contemplation of this section. Brown v. Howard, 106 Va. 262 , 55 S.E. 682 , 1906 Va. LEXIS 130 (1906).

    Nor is a party secondarily liable. —

    Under this section, a grantee of the timber on certain land, decreed only secondarily liable for a deficiency occurring on a sale of the land to satisfy a vendor’s lien, could not appeal prior to such sale and showing that a deficiency in excess of three hundred dollars (now $500) existed. C.L. Ritter Lumber Co. v. Coal Mt. Mining Co., 115 Va. 370 , 79 S.E. 322 , 1913 Va. LEXIS 46 (1913).

    A personal representative cannot appeal from a decree of sale of testator’s lands, not being interested therein. Edmunds v. Scott, 78 Va. 720 , 1884 Va. LEXIS 45 (1884).

    One joint tort-feasor cannot appeal judgment against others. —

    If judgment be against one joint tort-feasor, the other cannot have a writ of error to review it. Walton v. Miller, 109 Va. 210 , 63 S.E. 458 , 1909 Va. LEXIS 24 (1909).

    But creditor of decedent’s estate may appeal. —

    The fact that, after a report of debts against a decedent’s estate has been confirmed, other creditors come in by petition and are asserting debts against decedent’s estate does not prevent a party, whose rights have been prejudiced by the decree confirming the report of indebtedness, from appealing. Reid v. Windsor, 111 Va. 825 , 69 S.E. 1101 , 1911 Va. LEXIS 36 (1911).

    School board in tax levy proceedings. —

    In a proceeding by petition asking for relief from certain levies for local taxes, an order granting the relief prayed for was entered and a writ of error was granted. Defendant in error moved to dismiss the writ of error on the ground that the county school board was not a party to the proceeding within the meaning of this section, and therefore, had no right to apply for the writ. It was held that the county school board had the right to become a party defendant in the proceedings in the lower court as it did, and, being aggrieved by the judgment entered therein, was entitled to apply for the writ of error. School Bd. v. Shockley, 160 Va. 405 , 168 S.E. 419 , 1933 Va. LEXIS 221 (1933).

    Person active in proceedings to open highway. —

    Persons who were the most active parties throughout proceedings to open a highway, and the parties at whose cost the proceedings were dismissed, and at whose wharf the proposed road was to terminate, were such parties as had a sufficient interest to come within the meaning of the words “any person who thinks himself aggrieved by any judgment” granting an appeal in road controversies, and it was not necessary that any other persons who were petitioners or parties otherwise should assist in the prosecution of the appeal. In such cases an appeal by one inures to the benefit of all. Marchant & Taylor v. Mathews County, 139 Va. 723 , 124 S.E. 420 , 1924 Va. LEXIS 146 (1924).

    Appeal by successful party. —

    A writ of error may be brought by the plaintiff to reverse his own judgment, if erroneous or given for a less sum than he has a right to demand, in order to enable him to bring another action. Ballard v. Whitlock, 59 Va. (18 Gratt.) 235, 1867 Va. LEXIS 35 (1867).

    An executor or administrator as such is not an aggrieved party where the judgment affects only the rights of beneficiaries among themselves. An executor cannot litigate the claims of one set of legatees against the others at the expense of the estate. Shocket v. Silberman, 209 Va. 490 , 165 S.E.2d 414, 1969 Va. LEXIS 131 (1969).

    b.Application of Rule.

    Special commissioner not aggrieved. —

    A special commissioner appointed to make sale of land, cannot appeal from a decree setting aside the decree of sale. So far as it affects him in his capacity of commissioner, the setting aside of a decree of sale is not an appealable grievance within the contemplation of this section. Brown v. Howard, 106 Va. 262 , 55 S.E. 682 , 1906 Va. LEXIS 130 (1906).

    Nor is a party secondarily liable. —

    Under this section, a grantee of the timber on certain land, decreed only secondarily liable for a deficiency occurring on a sale of the land to satisfy a vendor’s lien, could not appeal prior to such sale and showing that a deficiency in excess of three hundred dollars (now $500) existed. C.L. Ritter Lumber Co. v. Coal Mt. Mining Co., 115 Va. 370 , 79 S.E. 322 , 1913 Va. LEXIS 46 (1913).

    A personal representative cannot appeal from a decree of sale of testator’s lands, not being interested therein. Edmunds v. Scott, 78 Va. 720 , 1884 Va. LEXIS 45 (1884).

    One joint tort-feasor cannot appeal judgment against others. —

    If judgment be against one joint tort-feasor, the other cannot have a writ of error to review it. Walton v. Miller, 109 Va. 210 , 63 S.E. 458 , 1909 Va. LEXIS 24 (1909).

    But creditor of decedent’s estate may appeal. —

    The fact that, after a report of debts against a decedent’s estate has been confirmed, other creditors come in by petition and are asserting debts against decedent’s estate does not prevent a party, whose rights have been prejudiced by the decree confirming the report of indebtedness, from appealing. Reid v. Windsor, 111 Va. 825 , 69 S.E. 1101 , 1911 Va. LEXIS 36 (1911).

    School board in tax levy proceedings. —

    In a proceeding by petition asking for relief from certain levies for local taxes, an order granting the relief prayed for was entered and a writ of error was granted. Defendant in error moved to dismiss the writ of error on the ground that the county school board was not a party to the proceeding within the meaning of this section, and therefore, had no right to apply for the writ. It was held that the county school board had the right to become a party defendant in the proceedings in the lower court as it did, and, being aggrieved by the judgment entered therein, was entitled to apply for the writ of error. School Bd. v. Shockley, 160 Va. 405 , 168 S.E. 419 , 1933 Va. LEXIS 221 (1933).

    Person active in proceedings to open highway. —

    Persons who were the most active parties throughout proceedings to open a highway, and the parties at whose cost the proceedings were dismissed, and at whose wharf the proposed road was to terminate, were such parties as had a sufficient interest to come within the meaning of the words “any person who thinks himself aggrieved by any judgment” granting an appeal in road controversies, and it was not necessary that any other persons who were petitioners or parties otherwise should assist in the prosecution of the appeal. In such cases an appeal by one inures to the benefit of all. Marchant & Taylor v. Mathews County, 139 Va. 723 , 124 S.E. 420 , 1924 Va. LEXIS 146 (1924).

    Appeal by successful party. —

    A writ of error may be brought by the plaintiff to reverse his own judgment, if erroneous or given for a less sum than he has a right to demand, in order to enable him to bring another action. Ballard v. Whitlock, 59 Va. (18 Gratt.) 235, 1867 Va. LEXIS 35 (1867).

    An executor or administrator as such is not an aggrieved party where the judgment affects only the rights of beneficiaries among themselves. An executor cannot litigate the claims of one set of legatees against the others at the expense of the estate. Shocket v. Silberman, 209 Va. 490 , 165 S.E.2d 414, 1969 Va. LEXIS 131 (1969).

    3.The Commonwealth.

    May appeal from petition for proceeds of sale of forfeited vessels. —

    Where vessels have been forfeited to the Commonwealth for violation of the oyster laws and sold under order of the court, and parties entitled to the proceeds petition therefor, the proceedings are not criminal but civil, and the Commonwealth is entitled to an appeal from a judgment in favor of petitioners if the amount in controversy exceeds the minimum jurisdictional amount. Commonwealth v. Mister, 79 Va. 5 , 1884 Va. LEXIS 52 (1884).

    4.Counties and Cities.

    Counties and cities may sue and be sued and have the right of appeal from an adverse decision both at law and in equity. Commonwealth v. Schmelz, 116 Va. 62 , 81 S.E. 45 , 1914 Va. LEXIS 8 (1914).

    5.Joint Appeals.

    Cases involving different issues between same parties require separate writs of error. —

    Three several judgments rendered in three different proceedings, commenced at different times in which different defenses were made, and never consolidated before the judgments were rendered, though between the same parties, cannot be brought to the Supreme Court by a single writ of error. Commonwealth v. Round Mt. Mining & Mfg. Co., 117 Va. 30 , 83 S.E. 1061 , 1915 Va. LEXIS 5 (1915).

    6.Estoppel to Appeal.

    Mere statement no basis of estoppel. —

    The mere statement of an appellant to an appellee that he did not intend to or would not appeal, does not prevent an appeal, unless there was a consideration for the statement, or the appellee has acted on it to his prejudice. Southern Ry. v. Glenn's Adm'r, 98 Va. 309 , 36 S.E. 395 , 1900 Va. LEXIS 44 (1900).

    Receiving amount less than claimed no waiver of appeal. —

    Where a decree is entered for a less sum than the party claims, receiving payment of the sum so decreed is not a waiver of errors, nor does it estop him from appealing from the decree as to sums not allowed. Southern Ry. v. Glenn's Adm'r, 98 Va. 309 , 36 S.E. 395 , 1900 Va. LEXIS 44 (1900).

    I.Decisions Under Current Law.

    1. General Consideration.
    2. Appealable Judgments, Orders and Decrees.
      1. In General.
      2. Interlocutory Decrees.
    3. Who May Appeal.
      1. In General.
      2. Appealability as Dependent on Finality of Decisions.

    Constitutionality. —

    The right to appellate review is a statutory right and is not a necessary element of due process; thus, no due process violation occurs if an appeal is barred. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, 3 Va. Law Rep. 2720, 1987 Va. LEXIS 215, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267, 1987 U.S. LEXIS 4520 (1987).

    The statutes which limit review of a death penalty case to the Supreme Court do not violate equal protection rights, as it is rational for the General Assembly, given the gravity of cases involving a sentence to death, to provide death-penalty defendants an automatic, plenary review in the Commonwealth’s highest court. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, 3 Va. Law Rep. 2720, 1987 Va. LEXIS 215, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267, 1987 U.S. LEXIS 4520 (1987).

    Section controls over § 8.01-626 in final judgments. —

    The summary procedure for review of orders regarding injunctions under § 8.01-626 may not be employed as a substitute for an appeal under this section when a final judgment within the meaning of this section has been entered in the circuit court. Omega Corp. v. Cobb, 222 Va. 875 , 292 S.E.2d 44, 1981 Va. LEXIS 386 (1981).

    Appellate jurisdiction in child guardian matters. —

    Subdivision 3 e of former § 17-166.05 gives jurisdiction to the Court of Appeals in “[a]ny final judgment, order, or decree of a circuit court involving . . . [t]he control or disposition of a child.” Because this section clearly contemplates the Court of Appeals having initial appellate jurisdiction over at least some of the judgments listed in that section, and because guardianship is a matter commonly involving the control or disposition of a child, these two jurisdictional statutes when read together evince a legislative intent to grant the Court of Appeals initial appellate jurisdiction in matters involving the appointment or qualification of guardians for a minor child. In re O'Neil, 18 Va. App. 674, 446 S.E.2d 475, 11 Va. Law Rep. 51, 1994 Va. App. LEXIS 485 (1994).

    The Court of Appeals does not have jurisdiction of final decisions of circuit courts on appeal from decisions of boards of zoning appeals. Appellate jurisdiction of such cases lies in the Supreme Court under subdivision A 3, assuming, but not deciding, that a petition for certiorari under former § 15.1-497 (see now § 15.2-2314 ) is an “appeal” from a decision of a board of zoning appeals within the meaning of former § 17-116.05(1). Virginia Beach Beautification Comm'n v. Board of Zoning Appeals, 231 Va. 415 , 344 S.E.2d 899, 1986 Va. LEXIS 207 (1986).

    Supreme Court had jurisdiction in refusal to submit to alcohol test case. —

    Although former § 18.2-268 V (now § 18.2-268.4 ) regulated the procedure on appeal, a defendant’s substantive right of appeal is regulated by this section, which authorizes an appeal to the Supreme Court by any person aggrieved by a final judgment in any other civil case. Thus, the Supreme Court had jurisdiction in a refusal to submit to a blood or breath alcohol test case. Commonwealth v. Rafferty, 241 Va. 319 , 402 S.E.2d 17, 7 Va. Law Rep. 1744, 1991 Va. LEXIS 44 (1991).

    For an action protesting the decision to award a contract brought under § 11-70 of the Virginia Public Procurement Act and not under the administrative appeals procedure authorized by § 11-71, appellate jurisdiction lies with the Supreme Court and not the Court of Appeals. Allstar Towing, Inc. v. City of Alexandria, 231 Va. 421 , 344 S.E.2d 903, 1986 Va. LEXIS 208 (1986).

    Appellant jurisdiction limited. —

    County commissioner of accounts had subject matter jurisdiction to hear a petition for aid and direction filed initially with him because the circuit court had subject matter jurisdiction over the case, and the supreme court reviewed decisions of the circuit court, not decisions of the commissioner; a commissioner’s authority to assist the circuit court with the settlement of estates was an extension of the circuit court’s subject matter jurisdiction to administer estates. Gray v. Binder, 294 Va. 268 , 805 S.E.2d 768, 2017 Va. LEXIS 157 (2017).

    Nonsuit against defendant against whom cross-claim filed. —

    When an order of nonsuit improperly dismisses a party defendant against whom a valid cross-claim has been duly filed, effectively time-barring the cause of action set forth in the cross-claim, such order is a final, appealable judgment as to the cross-claimant within the meaning of this statute. Iliff v. Richards, 221 Va. 644 , 272 S.E.2d 645, 1980 Va. LEXIS 286 (1980).

    Ordinarily, an order of nonsuit is not to be considered a final judgment for purposes of appeal. An order of nonsuit is a final, appealable order within the meaning of subdivision A 3, only when a dispute exists whether the trial court properly granted a motion for nonsuit. McManama v. Plunk, 250 Va. 27 , 458 S.E.2d 759, 1995 Va. LEXIS 90 (1995).

    Absent an appealable order in an adoption proceeding the Supreme Court may not determine whether any of the requirements for adoption have been met. Where the order in a case was not a final or even an interlocutory order of adoption nor was it appealable as an order adjudicating the principles of a cause, any finding made in the adoption proceeding is not yet appealable. Shortridge v. Deel, 224 Va. 589 , 299 S.E.2d 500, 1983 Va. LEXIS 165 (1983).

    Discovery orders under Uniform Foreign Depositions Act subject to review. —

    Ordinarily, a trial court’s discovery orders are not subject to review on direct appeal because they are not final within the contemplation of this section but an order granting or refusing a motion to quash or issue a protective order, in a proceeding brought in a court of the commonwealth pursuant to the Uniform Foreign Depositions Act, is a final order subject to appellate review. America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350 , 542 S.E.2d 377, 2001 Va. LEXIS 38 (2001).

    Discovery orders under Uniform Foreign Depositions Act subject to appeal. —

    Under the Uniform Foreign Depositions Act, an order of the trial court disposing of all discovery issues before it and concluding the entirety of the proceedings in a Virginia court, is a final order subject to appeal under this section. America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350 , 542 S.E.2d 377, 2001 Va. LEXIS 38 (2001).

    Where a dispute exists whether the trial court properly granted a motion for nonsuit, that order of nonsuit is a final, appealable order within the meaning of subdivision A 3. Wells v. Lorcom House Condominiums' Council of Co-Owners, 237 Va. 247 , 377 S.E.2d 381, 5 Va. Law Rep. 1773, 1989 Va. LEXIS 33 (1989).

    Jurisdiction over appeals from determinations of state university. —

    Under § 17.1-405 , the Virginia Court of Appeals only has jurisdiction over an appeal from an administrative agency, not over an administrative decision made by an entity that is not purely an administrative agency. The Court of Appeals thus lacks jurisdiction over a trial court decision on appeal from the determination of a state university pursuant to § 23-7.4; appellate jurisdiction of such cases lies in the Virginia Supreme Court under subdivision A 3 of § 8.01-670 . George Mason Univ. v. Floyd, 275 Va. 32 , 654 S.E.2d 556, 2008 Va. LEXIS 11 (2008).

    Order changing child’s name. —

    An order in an independent civil action changing a name, including that of child, is a final judgment in a civil case within the meaning of this section and is, therefore, properly appealable to the Supreme Court. Rowland v. Shurbutt, 259 Va. 305 , 525 S.E.2d 917, 2000 Va. LEXIS 50 (2000).

    Order compelling arbitration. —

    Order that compelled arbitration of an employee’s claim against her employer pursuant to the Virginia Uniform Arbitration Act, § 8.01-581.01 et seq., was not a final judgment order for purposes of appeal as contemplated by subdivision A 3 of this section; pursuant to § 8.01-581.010 , the trial court retained jurisdiction to vacate an arbitration award, and, pursuant to § 8.01-581.011 , the trial court retained jurisdiction to modify or correct an arbitration award. Seguin v. Northrop Grumman Sys. Corp., 277 Va. 244 , 672 S.E.2d 877, 2009 Va. LEXIS 30 (2009).

    Under the severable-interests rule, a final adjudication of a collateral matter that addresses separate and severable interests can be appealed only when the appeal cannot affect the determination of the remaining issues in the case, even if the adjudication is reversed. The order may be appealed either at the time of its entry or when the trial court enters a final order disposing of the remainder of the case. Thompson v. Skate Am., Inc., 261 Va. 121 , 540 S.E.2d 123, 2001 Va. LEXIS 20 (2001).

    Civil contempt. —

    Section § 19.2-318 did not provide appellate jurisdiction for either the Supreme Court of Virginia or the Court of Appeals of Virginia to review the judgment of the circuit court dismissing the rule to show cause and refusing to hold the property owner in civil contempt of court; therefore, finding no abrogation of the common-law rule in the current or former versions of § 19.2-318 that would give the court jurisdiction of the instant appeal, the court turned to subdivision A 3 of § 8.01-670 . The General Assembly abrogated the common-law rule that appellate review of contempt proceedings was not available only with regard to judgments “for” contempt; consequently, the court did not have jurisdiction under subdivision A 3 of § 8.01-670 to review the judgment dismissing the rule to show cause and refusing to hold the property owner in civil contempt of court. Jenkins v. Mehra, 281 Va. 37 , 704 S.E.2d 577, 2011 Va. LEXIS 18 (2011).

    Appellate court did not have jurisdiction to review the trial court’s award of attorney fees to appellee because the award arose out of, and was dependent on, the trial court’s finding that appellee was not in contempt. Because the appellate court lacked jurisdiction to review the trial court’s ruling that appellee was not in contempt, it also lacked jurisdiction to review the award of attorney fees based on that ruling. Staley v. Staley, 2018 Va. App. LEXIS 121 (Va. Ct. App. May 1, 2018).

    Order did not adjudicate rights of all parties. —

    As the trial court’s order dismissing an action adjudicated only the rights of one defendant, it was rendered with regard to some but not all of the parties involved in the case and was thus not a final order under subdivision A 3 of § 8.01-670 for purposes of appeal. Rutter v. Oakwood Living Ctrs. of Va., Inc., 282 Va. 4 , 710 S.E.2d 460, 2011 Va. LEXIS 123 (2011).

    Order removing case from docket not appealable. —

    Trial court erred by concluding that its order, requiring the suit to be discontinued under subsection B of § 8.01-335 if no action was taken in the next three years, automatically discontinued the action three years later. As the order merely removed the action from the docket, it was not a final order under subdivision A 3 of § 8.01-670 for purposes of appeal. Rutter v. Oakwood Living Ctrs. of Va., Inc., 282 Va. 4 , 710 S.E.2d 460, 2011 Va. LEXIS 123 (2011).

    Jurisdiction to consider appeal of interlocutory decree. —

    Because it was clear from the legislature’s amendment of § 8.01-670 , and rejection of an amendment of § 17.1-405 , that § 8.01-670 .1 applied only to interlocutory appeals to the Supreme Court of Virginia, the Court of Appeals of Virginia lacked jurisdiction to consider an interlocutory appeal under § 8.01-670.1 . Further, the legislature did not limit the exclusion of § 8.01-670.1 only to those interlocutory appeals over which the Court of Appeals already had jurisdiction, but instead, cited to the whole of § 17.1-405 . Commonwealth v. Fairfax County Sch. Bd., 49 Va. App. 797, 645 S.E.2d 337, 2007 Va. App. LEXIS 249 (2007).

    Provisions of § 8.01-672 and subdivision A 1 of § 8.01-670 did not authorize the interlocutory appeal of a circuit court’s order classifying the taxpayer’s property because there was no statutory authorization for an interlocutory appeal in an erroneous tax assessment case. Comcast of Chesterfield County, Inc. v. Bd. of Supervisors, 277 Va. 293 , 672 S.E.2d 870, 2009 Va. LEXIS 40 (2009).

    As the trial court’s order adjudicated an adminstratrix’s ability to proceed with the action only as to a nursing home, and as the interests of all four defendants were joint and not severable, because the allegations against the home, a rehabilitation facility, and its president derived from the alleged negligent conduct of the facility’s employee, the trial court’s adjudication as to the home did not concern a collateral matter, separate and distinct from the general subject of the litigation. Therefore, the order was not appealable under subdivision A 3 of § 8.01-670 . Rutter v. Oakwood Living Ctrs. of Va., Inc., 282 Va. 4 , 710 S.E.2d 460, 2011 Va. LEXIS 123 (2011).

    Foreign divorce decree held appealable. —

    In an appeal by a husband of a foreign court’s divorce decree where the wife challenged the Virginia court’s jurisdiction to entertain the appeal, the decree was appealable since it denied the husband an injunction, and since it adjudicated the principles of the cause. Ceyte v. Ceyte, 222 Va. 11 , 278 S.E.2d 791, 1981 Va. LEXIS 263 (1981).

    Elimination of codefendant who could be held jointly liable. —

    The defendant manifestly was aggrieved, within the contemplation of this section, by the court’s action in erroneously eliminating a codefendant who could be held jointly liable with defendant to the plaintiff. Government Employees Ins. Co. v. Gallop, 224 Va. 720 , 299 S.E.2d 525, 1983 Va. LEXIS 183 (1983).

    Virginia Employment Commission held not an aggrieved person, with the right of appeal under this section, where circuit court reversed Commission’s decisions with respect to entitlement of benefits. See VEC v. City of Virginia Beach, 222 Va. 728 , 284 S.E.2d 595, 1981 Va. LEXIS 367 (1981).

    Appeal under dangerous dog statute, § 3.2-6540. —

    Supreme court had appellate jurisdiction over an order finding that a dog was dangerous within the meaning of subsection A of § 3.2-6540 because an appeal under subsection B of § 3.2-6540 was civil in nature and, by operation of § 8.01-670 , the supreme court had appellate jurisdiction. Frouz v. Commonwealth, 296 Va. 391 , 821 S.E.2d 324, 2018 Va. LEXIS 175 (2018).

    II.Decisions Under Prior Law.

    A.General Consideration.

    Editor’s note.

    Section conforms to the provision of the Constitution relating to the jurisdiction of the Supreme Court. The 1928 amendment to the section of the Constitution, which eliminated the limitations on the jurisdiction of the Supreme Court, in no way impaired the provision of this section. Unemployment Comp. Comm'n v. Harvey, 179 Va. 202 , 18 S.E.2d 390, 1942 Va. LEXIS 212 (1942).

    The legislature has the power to deny to litigants any review of the proceedings by the Supreme Court. Town of Falls Church v. County Bd., 166 Va. 192 , 184 S.E. 459 , 1936 Va. LEXIS 181 (1936).

    Liberal construction. —

    This section being remedial should be construed liberally so as to effectuate the purpose of its enactment. Southern Ry. v. Hill, 106 Va. 501 , 56 S.E. 278 , 1907 Va. LEXIS 112 (1907); Hampton Rds. San. Dist. Comm'n v. Smith, 193 Va. 371 , 68 S.E.2d 497, 1952 Va. LEXIS 145 (1952).

    This section does not deal with the completion of the record in the trial court. —

    This and other sections regulating appeals and applications for writs of error do not purport to deal with the time or the manner in which the record shall be completed in the trial court. Nethers v. Nethers, 160 Va. 335 , 168 S.E. 428 , 1933 Va. LEXIS 213 (1933).

    Appeals and writs of error are not allowed for the purpose of settling abstract questions, however interesting and important to the public they may be, but only to correct errors injuriously affecting the appellant or plaintiff in error. Nicholas v. Lawrence, 161 Va. 589 , 171 S.E. 673 , 1933 Va. LEXIS 348 (1933).

    Real controversy must exist. —

    Whenever it appears, or is made to appear by extrinsic evidence, that there is no actual controversy, or that if one existed, it has ceased, the appeal or writ of error should be dismissed. Courts of justice sit to decide actual controversies by a judgment which can be enforced, and not to give opinions upon moot questions or abstract propositions of law. Hamer v. Commonwealth, 107 Va. 636 , 59 S.E. 400 , 1907 Va. LEXIS 81 (1907); Levy v. Kosmo, 129 Va. 446 , 106 S.E. 228 , 1921 Va. LEXIS 108 (1921).

    Appeal dismissed if controversy settled. —

    Where, after a writ of error was granted to the judgment of the circuit court refusing to grant the plaintiff in error a mandamus to compel the clerk of the board of election commissioners to give him a certificate of election, it appeared that the controversy had been decided in a proper proceeding, the writ of error was dismissed. Franklin v. Peers, 95 Va. 602 , 29 S.E. 321 , 1898 Va. LEXIS 22 (1898).

    Whether a party has a right to appeal is not a question for the lower but for the appellate court. Todd v. Gallego Mills Mfg. Co., 84 Va. 586 , 5 S.E. 676 , 1888 Va. LEXIS 113 (1888).

    Appellate court has no power when decree not appealable. —

    Where the Supreme Court has reached the conclusion that the decree under review is not an appealable decree, that court is without jurisdiction to decide any other question in the case. Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925).

    B.Jurisdiction.

    An appeal from the decision of an inferior court does not lie, unless jurisdiction to entertain such appeal is conferred by Constitution or statute. Richmond Cedar Works & Liberty Mut. Ins. Co. v. Harper, 129 Va. 481 , 106 S.E. 516 , 1921 Va. LEXIS 111 (1921).

    The Virginia Constitution does not, proprio vigore, confer jurisdiction upon the Supreme Court. Therefore, whatever jurisdiction it exercises must be by virtue of statutory authority given in pursuance of the Constitution. The provisions of the Constitution in this particular are carried into effect by §§ 8.01-670 and 8.01-672 . Barnett v. Meredith, 51 Va. (10 Gratt.) 650, 1854 Va. LEXIS 71 (1854); Page v. Clopton, 71 Va. 417 (1878); Prison Ass'n v. Ashby, 93 Va. 667 , 25 S.E. 893 , 1896 Va. LEXIS 123 (1896)(see also).Rudacille v. State Comm'n on Conservation & Dev., 155 Va. 808 , 156 S.E. 829 , 1931 Va. LEXIS 270 (1931).

    Legislature has right to extend or deny remedy. —

    Where the Constitution does not expressly give the right of an appeal the legislature has the right to extend or deny this remedy to the litigant. Hulvey v. Roberts, 106 Va. 189 , 55 S.E. 585 , 1906 Va. LEXIS 120 (1906).

    The burden is upon him who invokes the authority of the Supreme Court to establish its jurisdiction over the matter in controversy. Harman v. City of Lynchburg, 74 Va. (33 Gratt.) 37, 1880 Va. LEXIS 20 (1880); Forbes v. State Council, 107 Va. 853 , 60 S.E. 81 , 1908 Va. LEXIS 145 (1908), writ of error dismissed, 216 U.S. 396, 30 S. Ct. 295, 54 L. Ed. 534, 1910 U.S. LEXIS 1905 (1910); Lamb v. Thompson, 112 Va. 134 , 70 S.E. 507 , 1911 Va. LEXIS 62 (1911); C.L. Ritter Lumber Co. v. Coal Mt. Mining Co., 115 Va. 370 , 79 S.E. 322 , 1913 Va. LEXIS 46 (1913); Jones v. Buckingham Slate Co., 116 Va. 120 , 81 S.E. 28 , 1914 Va. LEXIS 14 (1914).

    The burden of showing the existence of jurisdiction to hear the appeal is on the plaintiff in error, and such jurisdiction must affirmatively appear from the record. Williamson v. Payne, 103 Va. 551 , 49 S.E. 600 (1905); C.L. Ritter Lumber Co. v. Coal Mt. Mining Co., 115 Va. 370 , 79 S.E. 322 , 1913 Va. LEXIS 46 (1913)(see also).Jones v. Buckingham Slate Co., 116 Va. 120 , 81 S.E. 28 , 1914 Va. LEXIS 14 (1914); J.A. Heisler & Bro. v. Merchants Cold Storage & Ice Mfg. Co., 139 Va. 114 , 123 S.E. 505 , 1924 Va. LEXIS 89 (1924).

    When jurisdiction affirmatively appears. —

    The jurisdiction of the Supreme Court affirmatively appears from the record, when the court can see that the judgment of the lower court necessarily involved the constitutionality of some statute or ordinance, or drew in question some right under the federal or State Constitution. Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626 , 59 S.E. 476 , 1907 Va. LEXIS 80 (1907).

    C.Appealable Judgments, Orders and Decrees.

    Jurisdiction limited to the issue. —

    The jurisdiction of the court below was limited to the issue made by the pleadings and the same is true of the jurisdiction of the Supreme Court. Reynolds v. Adams, 125 Va. 295 , 99 S.E. 695 , 1919 Va. LEXIS 24 (1919).

    Appeal will lie to a void decree. —

    A writ of error or appeal will lie to or from a judgment, decree or order of a court, although the same may be void for want of jurisdiction or for other cause. Crane v. Crane, 62 Va. (21 Gratt.) 579, 1871 Va. LEXIS 37 (1871).

    An order of a court of record affirming a decision of a board of zoning appeals is a final order in a “civil case,” and is appealable under subdivision A 3 of this section. Burkhardt v. Board of Zoning Appeals, 192 Va. 606 , 66 S.E.2d 565, 1951 Va. LEXIS 208 (1951).

    And from order overruling exceptions to report of commissioner of accounts. —

    An appeal lies to the Supreme Court from an order of an inferior court overruling exceptions to and confirming a commissioner of account’s report upon the accounts of a county treasurer, which disallowed credits claimed by the treasurer of $893.78 and awarded costs against him. The judgment of the lower court was, in effect, a judgment against the treasurer for upwards of $900, and was a final judgment and appealable under the provisions of this section. Leachman v. Board of Supvrs., 124 Va. 616 , 98 S.E. 656 , 1919 Va. LEXIS 152 (1919).

    Also from final order in county bond election controversy. —

    In a proceeding to determine the regularity and validity of an election to determine whether or not county bonds shall be issued for permanent road improvements in the magisterial districts of a county, an appeal lies to the court of appeals from the final order of the circuit court in such controversy. Board of Supvrs. v. Spilman, 113 Va. 391 , 74 S.E. 151 , 1912 Va. LEXIS 48 (1912).

    But not from default judgments and decrees. —

    The Supreme Court has no jurisdiction of an appeal from a decree by default until relief has been sought under § 8.01-428 , by motion to the court in which the decree was rendered. When the time allowed by that section expires the decree becomes final and irreversible. Smith v. Powell, 98 Va. 431 , 36 S.E. 522 , 1900 Va. LEXIS 60 (1900).

    Nor from judgments by confession. —

    Where the defendant relinquishes his plea, and agrees to the plaintiff’s damages, there is a judgment by confession, amounting to a release of errors and defendant cannot appeal even by consent of plaintiff. Cooke v. Pope, 17 Va. (3 Munf) 167, 1812 Va. LEXIS 28 (1812)(see also).Edmonds v. Green, 22 Va. (1 Rand.) 44, 1822 Va. LEXIS 4 (1822).

    Under this section specifying in what cases appeals may be awarded, there is no denial of the right of appeal by a defendant from a decree taken for confessed as to him. Shocket v. Silberman, 209 Va. 490 , 165 S.E.2d 414, 1969 Va. LEXIS 131 (1969).

    Nor from consent decree. —

    No appeal lies from a consent decree, as the consent cures all errors. Hinton v. Bland, 81 Va. 588 , 1886 Va. LEXIS 126 (1886); Hounshell v. Hounshell, 116 Va. 675 , 82 S.E. 689 , 1914 Va. LEXIS 75 (1914).

    a.In General.

    Under this section in an action at law a writ of error does not lie until a final judgment has been entered in the case by the court below, even though the court may have entered an order which indicates clearly what its final judgment would have been had it entered a final judgment. Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913); Brown v. Carolina, C & O Ry., 116 Va. 597 , 83 S.E. 981 , 1914 Va. LEXIS 65 (1914); Wade v. Peebles, 162 Va. 479 , 174 S.E. 769 , 1934 Va. LEXIS 266 (1934).

    Under this section and § 8.01-671 , which must be considered together, no writ of error may be granted unless the judgment is final. Hatke v. Globe Indem. Co., 167 Va. 184 , 188 S.E. 164 , 1936 Va. LEXIS 290 (1936).

    In the absence of special statutory provision to the contrary, the jurisdiction of the trial court must cease before the jurisdiction of the appellate court accrues. Allison v. Wood, 104 Va. 765 , 52 S.E. 559 , 1906 Va. LEXIS 143 (1906).

    Under this section a decree in equity is not appealable unless it be final or one that adjudicates principles of the cause. Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925).

    Although a decree adjudicating the principles of the cause is appealable, still if it leaves any vital questions unsettled it is not final in the sense of § 8.01-671 , providing that no appeal or writ of error to any final judgment or decree shall lie where the judgment or decree was rendered more than six (now four) months before the petition was presented. Allen v. Parkey, 154 Va. 739 , 149 S.E. 615 , 1929 Va. LEXIS 234 (1929).

    b.Final Judgments.

    Definition. —

    A final order is one that disposes of the whole subject, gives all of the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order. Burch v. Hardwicke, 64 Va. (23 Gratt.) 51, 1873 Va. LEXIS 24 (1873); Alexander v. Byrd, 85 Va. 690 , 8 S.E. 577 , 1889 Va. LEXIS 82 (1889); Postal Tel. Cable Co. v. Norfolk & W. Ry., 87 Va. 349 , 12 S.E. 613 , 1891 Va. LEXIS 77 (1891), dismissed, Postal Tel. Cable Co. v. Norfolk & W. R. Co., 163 U.S. 700, 16 S. Ct. 1205, 41 L. Ed. 315, 1896 U.S. LEXIS 3471 (1896); Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913); Gills v. Gills, 126 Va. 526 , 101 S.E. 900 , 1920 Va. LEXIS 7 (1920); Richardson v. Gardner, 128 Va. 676 , 105 S.E. 225 , 1920 Va. LEXIS 127 (1920); Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925)(see also).Brown v. Carolina, C & O Ry., 116 Va. 597 , 83 S.E. 981 , 1914 Va. LEXIS 65 (1914); Ashworth v. Hagan Estates, Inc., 165 Va. 151 , 181 S.E. 381 , 1935 Va. LEXIS 284 (1935); Dearing v. Walter, 175 Va. 555 , 9 S.E.2d 336, 1940 Va. LEXIS 200 (1940).

    A decree which settles the principles of a cause, determines the rights of creditors, the validity of stock subscriptions, and the liability of stockholders to pay the same as far as necessary to satisfy the demands of creditors, and leaves nothing to be done except to execute and give effect to it, is a final decree on the merits. Martin v. South Salem Land Co., 97 Va. 349 , 33 S.E. 600 , 1899 Va. LEXIS 47 (1899).

    A decree that ends the cause, so that no further action of the court in the cause is necessary is a final decree. Battaile v. Maryland Hosp. for Insane, 76 Va. 63 , 1881 Va. LEXIS 74 (1881).

    A decree may be final as to one party and not to another in the same cause, but it cannot be final as to any party who is not put out of the cause. As to any party remaining in the court, it can, in the nature of things, be only interlocutory. Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925)(see).Dearing v. Walter, 175 Va. 555 , 9 S.E.2d 336, 1940 Va. LEXIS 200 (1940).

    Decree dismissing one of two joint causes is final. —

    Where two causes are heard together and one of them is dismissed and the other continued, the decree is final as to the one dismissed, and unless an appeal is taken within a year (now four months) as provided by statute, the right of appeal is lost. The same rule applies to a so-called amended and supplemental bill which makes an entirely new case and which is dismissed. Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    As is one refusing or granting relief sought. —

    A decree is final so as to be appealable when it either refuses or grants the relief sought by the party complaining. Jones v. Buckingham Slate Co., 116 Va. 120 , 81 S.E. 28 , 1914 Va. LEXIS 14 (1914).

    A judgment may be final although it is not a final determination of rights of parties. —

    A judgment in an action is final within the meaning of this section when it is a termination of the particular action or suit, although it is not a final determination of the right of the parties. Brown v. Carolina, C & O Ry., 116 Va. 597 , 83 S.E. 981 , 1914 Va. LEXIS 65 (1914).

    But if further action is necessary it is not final. —

    If it appears upon the face of the judgment that further action in the cause is necessary to give completely the relief contemplated by the court, then the judgment is not final. Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913); Johnson v. Merrit, 125 Va. 162 , 99 S.E. 785 , 1919 Va. LEXIS 16 (1919); Gills v. Gills, 126 Va. 526 , 101 S.E. 900 , 1920 Va. LEXIS 7 (1920).

    c.Application of Rule in Particular Cases.
    i.Decisions Held Final and Appealable.

    A decree dismissing a bill is a final decree, which can only be set aside by appeal, or by bill of review, within the periods limited by statute. Battaile v. Maryland Hosp. for Insane, 76 Va. 63 , 1881 Va. LEXIS 74 (1881); Pace v. Ficklin, 76 Va. 292 , 1882 Va. LEXIS 32 (1882); Jones v. Turner, 81 Va. 709 , 1886 Va. LEXIS 134 (1886).

    And an order refusing to admit to probate a paper offered as a will is a final judgment to which a writ of error lies, although no provision is made for the costs of the proceedings in which the will is offered. Wallen v. Wallen, 107 Va. 131 , 57 S.E. 596 , 1907 Va. LEXIS 21 (1907).

    Order refusing to allow bill of review to be filed. —

    The refusal of the lower court to allow a bill of review to be filed is a proper subject of appeal. Ambrouse v. Keller, 63 Va. (22 Gratt.) 769, 1872 Va. LEXIS 61 (1872); Connolly v. Connolly, 73 Va. (32 Gratt.) 657, 1880 Va. LEXIS 89 (1880).

    Decree refusing injunction. —

    In an injunction suit in which the case was submitted for a decree on the merits, an appeal from a decree refusing the injunction will not be dismissed on the ground that such decree is not appealable under this section. Clintwood Coal Corp. v. Turner, 133 Va. 464 , 114 S.E. 117 , 1922 Va. LEXIS 110 (1922).

    Decree dissolving injunction. —

    The appellants had the right to appeal because the decree dissolved the injunction and also adjudicated the principles of the case. Good v. Board of Supvrs., 140 Va. 399 , 125 S.E. 321 , 1924 Va. LEXIS 180 (1924).

    And judgment as to setoffs. —

    In an action by the plaintiff against two defendants, one of the defendants filed a plea of setoff in excess of the plaintiff’s demand, and other defendant filed no plea. The court without the intervention of a jury gave judgment in favor of the defendant pleading for the excess of his setoffs over and above the plaintiff’s demand and for his costs. This was a final judgment, disposing of the case as to both defendants, and to it a writ of error lies. Stimmel v. Benthall, 108 Va. 141 , 60 S.E. 765 , 1908 Va. LEXIS 20 (1908).

    b.Final Judgments.

    Definition. —

    A final order is one that disposes of the whole subject, gives all of the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order. Burch v. Hardwicke, 64 Va. (23 Gratt.) 51, 1873 Va. LEXIS 24 (1873); Alexander v. Byrd, 85 Va. 690 , 8 S.E. 577 , 1889 Va. LEXIS 82 (1889); Postal Tel. Cable Co. v. Norfolk & W. Ry., 87 Va. 349 , 12 S.E. 613 , 1891 Va. LEXIS 77 (1891), dismissed, Postal Tel. Cable Co. v. Norfolk & W. R. Co., 163 U.S. 700, 16 S. Ct. 1205, 41 L. Ed. 315, 1896 U.S. LEXIS 3471 (1896); Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913); Gills v. Gills, 126 Va. 526 , 101 S.E. 900 , 1920 Va. LEXIS 7 (1920); Richardson v. Gardner, 128 Va. 676 , 105 S.E. 225 , 1920 Va. LEXIS 127 (1920); Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925)(see also).Brown v. Carolina, C & O Ry., 116 Va. 597 , 83 S.E. 981 , 1914 Va. LEXIS 65 (1914); Ashworth v. Hagan Estates, Inc., 165 Va. 151 , 181 S.E. 381 , 1935 Va. LEXIS 284 (1935); Dearing v. Walter, 175 Va. 555 , 9 S.E.2d 336, 1940 Va. LEXIS 200 (1940).

    A decree which settles the principles of a cause, determines the rights of creditors, the validity of stock subscriptions, and the liability of stockholders to pay the same as far as necessary to satisfy the demands of creditors, and leaves nothing to be done except to execute and give effect to it, is a final decree on the merits. Martin v. South Salem Land Co., 97 Va. 349 , 33 S.E. 600 , 1899 Va. LEXIS 47 (1899).

    A decree that ends the cause, so that no further action of the court in the cause is necessary is a final decree. Battaile v. Maryland Hosp. for Insane, 76 Va. 63 , 1881 Va. LEXIS 74 (1881).

    A decree may be final as to one party and not to another in the same cause, but it cannot be final as to any party who is not put out of the cause. As to any party remaining in the court, it can, in the nature of things, be only interlocutory. Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925)(see).Dearing v. Walter, 175 Va. 555 , 9 S.E.2d 336, 1940 Va. LEXIS 200 (1940).

    Decree dismissing one of two joint causes is final. —

    Where two causes are heard together and one of them is dismissed and the other continued, the decree is final as to the one dismissed, and unless an appeal is taken within a year (now four months) as provided by statute, the right of appeal is lost. The same rule applies to a so-called amended and supplemental bill which makes an entirely new case and which is dismissed. Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    As is one refusing or granting relief sought. —

    A decree is final so as to be appealable when it either refuses or grants the relief sought by the party complaining. Jones v. Buckingham Slate Co., 116 Va. 120 , 81 S.E. 28 , 1914 Va. LEXIS 14 (1914).

    A judgment may be final although it is not a final determination of rights of parties. —

    A judgment in an action is final within the meaning of this section when it is a termination of the particular action or suit, although it is not a final determination of the right of the parties. Brown v. Carolina, C & O Ry., 116 Va. 597 , 83 S.E. 981 , 1914 Va. LEXIS 65 (1914).

    But if further action is necessary it is not final. —

    If it appears upon the face of the judgment that further action in the cause is necessary to give completely the relief contemplated by the court, then the judgment is not final. Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913); Johnson v. Merrit, 125 Va. 162 , 99 S.E. 785 , 1919 Va. LEXIS 16 (1919); Gills v. Gills, 126 Va. 526 , 101 S.E. 900 , 1920 Va. LEXIS 7 (1920).

    c.Application of Rule in Particular Cases.
    i.Decisions Held Final and Appealable.

    A decree dismissing a bill is a final decree, which can only be set aside by appeal, or by bill of review, within the periods limited by statute. Battaile v. Maryland Hosp. for Insane, 76 Va. 63 , 1881 Va. LEXIS 74 (1881); Pace v. Ficklin, 76 Va. 292 , 1882 Va. LEXIS 32 (1882); Jones v. Turner, 81 Va. 709 , 1886 Va. LEXIS 134 (1886).

    And an order refusing to admit to probate a paper offered as a will is a final judgment to which a writ of error lies, although no provision is made for the costs of the proceedings in which the will is offered. Wallen v. Wallen, 107 Va. 131 , 57 S.E. 596 , 1907 Va. LEXIS 21 (1907).

    Order refusing to allow bill of review to be filed. —

    The refusal of the lower court to allow a bill of review to be filed is a proper subject of appeal. Ambrouse v. Keller, 63 Va. (22 Gratt.) 769, 1872 Va. LEXIS 61 (1872); Connolly v. Connolly, 73 Va. (32 Gratt.) 657, 1880 Va. LEXIS 89 (1880).

    Decree refusing injunction. —

    In an injunction suit in which the case was submitted for a decree on the merits, an appeal from a decree refusing the injunction will not be dismissed on the ground that such decree is not appealable under this section. Clintwood Coal Corp. v. Turner, 133 Va. 464 , 114 S.E. 117 , 1922 Va. LEXIS 110 (1922).

    Decree dissolving injunction. —

    The appellants had the right to appeal because the decree dissolved the injunction and also adjudicated the principles of the case. Good v. Board of Supvrs., 140 Va. 399 , 125 S.E. 321 , 1924 Va. LEXIS 180 (1924).

    And judgment as to setoffs. —

    In an action by the plaintiff against two defendants, one of the defendants filed a plea of setoff in excess of the plaintiff’s demand, and other defendant filed no plea. The court without the intervention of a jury gave judgment in favor of the defendant pleading for the excess of his setoffs over and above the plaintiff’s demand and for his costs. This was a final judgment, disposing of the case as to both defendants, and to it a writ of error lies. Stimmel v. Benthall, 108 Va. 141 , 60 S.E. 765 , 1908 Va. LEXIS 20 (1908).

    ii.Decisions Held Not Final and Unappealable.

    A decree overruling a motion to dismiss the bill and granting leave to the plaintiff to file an amended bill is not appealable. Commercial Bank v. Rucker, 24 S.E. 388 , 1896 Va. LEXIS 159 (Va. 1896); London-Virginia Mining Co. v. Moore, 98 Va. 256 , 35 S.E. 722 , 1900 Va. LEXIS 34 (1900).

    Decree fixing liability for rent. —

    A decree fixing upon a party liability for rent is interlocutory until the amount of rent is ascertained. The amount may not be sufficient to give the court jurisdiction. Goodloe v. Woods, 115 Va. 540 , 80 S.E. 108 , 1913 Va. LEXIS 68 (1913).

    A decree ordering sale of land, but not directing application of proceeds held interlocutory and not final, though it adjudicated the principles of the cause. Richardson v. Gardner, 128 Va. 676 , 105 S.E. 225 , 1920 Va. LEXIS 127 (1920).

    Order upholding right to condemn. —

    An order adjudicating the Highway Commissioner’s right to condemn was not a final order since it did not finally dispose of the case. Dove v. May, 201 Va. 761 , 113 S.E.2d 840, 1960 Va. LEXIS 157 (1960).

    Nonsuit. —

    A nonsuit is not a final judgment within the meaning of this section, since a nonsuit must be suffered, if at all, before the jury retire from the bar. Mallory v. Taylor, 90 Va. 348 , 18 S.E. 438 , 1893 Va. LEXIS 58 (1893).

    Order appointing commissioner to assess damages. —

    There must be a degree of finality about every judgment taken up to be reviewed by appellate courts. Judgment appointing commissioners to fix a just compensation for land proposed to be taken in condemnation proceedings, is not final and not appealable. Ludlow v. City of Norfolk, 87 Va. 319 , 12 S.E. 612 , 1891 Va. LEXIS 74 (1891); Postal Tel. Cable Co. v. Norfolk & W. Ry., 87 Va. 349 , 12 S.E. 613 , 1891 Va. LEXIS 77 (1891), dismissed, Postal Tel. Cable Co. v. Norfolk & W. R. Co., 163 U.S. 700, 16 S. Ct. 1205, 41 L. Ed. 315, 1896 U.S. LEXIS 3471 (1896).

    Order granting or refusing amendments to pleadings. —

    No appeal lies to an interlocutory order, granting or refusing amendments to pleadings until there has been a final decree, except as otherwise provided by statute. The case in judgment is not within any of the exceptions provided for by this section. Hobson v. Hobson, 100 Va. 216 , 40 S.E. 899 , 1902 Va. LEXIS 18 (1902).

    Order overruling motion to quash process. —

    In an action against an uninsured motorist under former § 38.1-381, an order which overruled the insurance company’s motion to quash process was not a final order. Rodgers v. Danko, 204 Va. 140 , 129 S.E.2d 828, 1963 Va. LEXIS 127 (1963).

    Order refusing or allowing filing of supplemental bill. —

    There can be no appeal from a decree or order refusing to allow, or allowing, an amended and supplemental bill to be filed, unless and until there is an appeal from a decree which is final, or is appealable under this section. Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    Order touching process. —

    An order declaring a summons void as an alias summons, but good as an original summons, is not appealable under this section, as being a final judgment. Roger's Adm'r v. Bertha Zinc Co., 19 S.E. 782 (Va. Ct. App. 1894).

    An order overruling exceptions to an answer for insufficiency is not a final decree or order, as that term is used in this section. Johnson v. Mundy, 123 Va. 730 , 97 S.E. 564 , 1918 Va. LEXIS 63 (1918).

    Judgment awarding new trial. —

    A judgment awarding a new trial is not a final judgment within the meaning of this section. Smiley v. Provident Life & Trust Co., 106 Va. 787 , 56 S.E. 728 , 1907 Va. LEXIS 147 (1907).

    Judgment as to two of three notes. —

    An order made by the trial court setting aside the verdict as to two of the notes where an action was brought on three notes, and awarding a new trial as to them, but refusing to set it aside as to the other note, and directing that the plaintiff take nothing by his action as to that note, is not a final order or judgment to which a writ of error will lie. Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913).

    Decree refusing relief until further legislation. —

    A decree which declines to grant the relief prayed until the legislature enacts a further law on the subject, is not a final decree, nor does it adjudicate the principles of the cause. From it no appeal lies. If a decision is desired, the proper remedy is by mandamus to compel the trial court to hear and determine the cause. Board of Supvrs. v. City Council, 95 Va. 469 , 28 S.E. 882 , 1898 Va. LEXIS 2 (1898).

    Order directing an issue out of chancery. —

    No appeal will lie from a decree in a chancery cause directing an issue to be tried at the bar of the court to ascertain what amount of money, if any, was due from the appellee to the appellant. The appeal does not fall within the provisions of this section, and must be dismissed as having improvidently awarded. Moore v. Lipscombe, 82 Va. 546 , 1886 Va. LEXIS 71 (1886).

    A decree disallowing and rejecting defendant’s plea of a prior suit pending and requiring defendant to answer does not make any disposition of the prior suit. Nor is it in any sense a decree adjudicating the principles of the cause. The finality of such a decree must be tested by its effect upon the rights of the parties in the instant case, and not in the other suit pending. Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925).

    Action of trial court in setting aside a default judgment and ordering defendant to file its grounds of defense within three weeks, was not a final order, so that the writ of error was improvidently awarded and must be dismissed. Hatke v. Globe Indem. Co., 167 Va. 184 , 188 S.E. 164 , 1936 Va. LEXIS 290 (1936)(see).Massanutten Bank v. Glaize, 177 Va. 519 , 14 S.E.2d 285, 1941 Va. LEXIS 238 (1941).

    ii.Decisions Held Not Final and Unappealable.

    A decree overruling a motion to dismiss the bill and granting leave to the plaintiff to file an amended bill is not appealable. Commercial Bank v. Rucker, 24 S.E. 388 , 1896 Va. LEXIS 159 (Va. 1896); London-Virginia Mining Co. v. Moore, 98 Va. 256 , 35 S.E. 722 , 1900 Va. LEXIS 34 (1900).

    Decree fixing liability for rent. —

    A decree fixing upon a party liability for rent is interlocutory until the amount of rent is ascertained. The amount may not be sufficient to give the court jurisdiction. Goodloe v. Woods, 115 Va. 540 , 80 S.E. 108 , 1913 Va. LEXIS 68 (1913).

    A decree ordering sale of land, but not directing application of proceeds held interlocutory and not final, though it adjudicated the principles of the cause. Richardson v. Gardner, 128 Va. 676 , 105 S.E. 225 , 1920 Va. LEXIS 127 (1920).

    Order upholding right to condemn. —

    An order adjudicating the Highway Commissioner’s right to condemn was not a final order since it did not finally dispose of the case. Dove v. May, 201 Va. 761 , 113 S.E.2d 840, 1960 Va. LEXIS 157 (1960).

    Nonsuit. —

    A nonsuit is not a final judgment within the meaning of this section, since a nonsuit must be suffered, if at all, before the jury retire from the bar. Mallory v. Taylor, 90 Va. 348 , 18 S.E. 438 , 1893 Va. LEXIS 58 (1893).

    Order appointing commissioner to assess damages. —

    There must be a degree of finality about every judgment taken up to be reviewed by appellate courts. Judgment appointing commissioners to fix a just compensation for land proposed to be taken in condemnation proceedings, is not final and not appealable. Ludlow v. City of Norfolk, 87 Va. 319 , 12 S.E. 612 , 1891 Va. LEXIS 74 (1891); Postal Tel. Cable Co. v. Norfolk & W. Ry., 87 Va. 349 , 12 S.E. 613 , 1891 Va. LEXIS 77 (1891), dismissed, Postal Tel. Cable Co. v. Norfolk & W. R. Co., 163 U.S. 700, 16 S. Ct. 1205, 41 L. Ed. 315, 1896 U.S. LEXIS 3471 (1896).

    Order granting or refusing amendments to pleadings. —

    No appeal lies to an interlocutory order, granting or refusing amendments to pleadings until there has been a final decree, except as otherwise provided by statute. The case in judgment is not within any of the exceptions provided for by this section. Hobson v. Hobson, 100 Va. 216 , 40 S.E. 899 , 1902 Va. LEXIS 18 (1902).

    Order overruling motion to quash process. —

    In an action against an uninsured motorist under former § 38.1-381, an order which overruled the insurance company’s motion to quash process was not a final order. Rodgers v. Danko, 204 Va. 140 , 129 S.E.2d 828, 1963 Va. LEXIS 127 (1963).

    Order refusing or allowing filing of supplemental bill. —

    There can be no appeal from a decree or order refusing to allow, or allowing, an amended and supplemental bill to be filed, unless and until there is an appeal from a decree which is final, or is appealable under this section. Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    Order touching process. —

    An order declaring a summons void as an alias summons, but good as an original summons, is not appealable under this section, as being a final judgment. Roger's Adm'r v. Bertha Zinc Co., 19 S.E. 782 (Va. Ct. App. 1894).

    An order overruling exceptions to an answer for insufficiency is not a final decree or order, as that term is used in this section. Johnson v. Mundy, 123 Va. 730 , 97 S.E. 564 , 1918 Va. LEXIS 63 (1918).

    Judgment awarding new trial. —

    A judgment awarding a new trial is not a final judgment within the meaning of this section. Smiley v. Provident Life & Trust Co., 106 Va. 787 , 56 S.E. 728 , 1907 Va. LEXIS 147 (1907).

    Judgment as to two of three notes. —

    An order made by the trial court setting aside the verdict as to two of the notes where an action was brought on three notes, and awarding a new trial as to them, but refusing to set it aside as to the other note, and directing that the plaintiff take nothing by his action as to that note, is not a final order or judgment to which a writ of error will lie. Salem Loan & Trust Co. v. Kelsey, 115 Va. 382 , 79 S.E. 329 , 1913 Va. LEXIS 48 (1913).

    Decree refusing relief until further legislation. —

    A decree which declines to grant the relief prayed until the legislature enacts a further law on the subject, is not a final decree, nor does it adjudicate the principles of the cause. From it no appeal lies. If a decision is desired, the proper remedy is by mandamus to compel the trial court to hear and determine the cause. Board of Supvrs. v. City Council, 95 Va. 469 , 28 S.E. 882 , 1898 Va. LEXIS 2 (1898).

    Order directing an issue out of chancery. —

    No appeal will lie from a decree in a chancery cause directing an issue to be tried at the bar of the court to ascertain what amount of money, if any, was due from the appellee to the appellant. The appeal does not fall within the provisions of this section, and must be dismissed as having improvidently awarded. Moore v. Lipscombe, 82 Va. 546 , 1886 Va. LEXIS 71 (1886).

    A decree disallowing and rejecting defendant’s plea of a prior suit pending and requiring defendant to answer does not make any disposition of the prior suit. Nor is it in any sense a decree adjudicating the principles of the cause. The finality of such a decree must be tested by its effect upon the rights of the parties in the instant case, and not in the other suit pending. Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925).

    Action of trial court in setting aside a default judgment and ordering defendant to file its grounds of defense within three weeks, was not a final order, so that the writ of error was improvidently awarded and must be dismissed. Hatke v. Globe Indem. Co., 167 Va. 184 , 188 S.E. 164 , 1936 Va. LEXIS 290 (1936)(see).Massanutten Bank v. Glaize, 177 Va. 519 , 14 S.E.2d 285, 1941 Va. LEXIS 238 (1941).

    3.Jurisdiction in Special Matters.

    a.Condemnation Proceedings.

    Claim for interest allowed in condemnation proceedings. —

    It is manifest that where interest is allowed it constitutes a part of the just compensation which must be paid by the condemnor, in order to secure the property desired, and involves a matter concerning the condemnation of property within the meaning of this section. City of Richmond v. Goodwyn, 132 Va. 442 , 112 S.E. 787 , 1922 Va. LEXIS 38 (1922).

    b.Controversies Touching Probate of a Will.

    Degree of finality required. —

    It is not every order of a court in a cause, however incidental such order may be, that will in good sense and wise policy, warrant an appellate proceeding, in order to correct an apprehended error therein, and such proceeding must probably be confined to those orders which have about them a certain character of finality and conclusiveness, either in respect to the general merits of the cause, or in respect to some branch thereof, or of some matter collateral thereto, and yet of great interest to the parties, or to one of them. Tucker v. Sandridge, 82 Va. 532 , 1886 Va. LEXIS 68 (1886).

    Order setting aside verdict and ordering new trial not appealable. —

    This section is to be considered along with § 64.1-83 [now see § 64.2-446 ], so that an appeal will not be allowed from any order, but only from a final order or sentence, so that an appeal allowed to the order of a circuit court setting aside the verdict of a jury against a will and awarding a new trial will be dismissed as improvidently awarded. Tucker v. Sandridge, 82 Va. 532 , 1886 Va. LEXIS 68 (1886).

    c.Controversies Touching Mills, Roadways, Ferries or Landings.

    Legislature has right to limit appeals under the general road law. —

    While it is true that under the general road law there is an unrestricted appeal to the Supreme Court, it is within the power of the legislature, by special enactment, to limit that right to judicial questions only. Wilburn v. Raines, 111 Va. 334 , 68 S.E. 993 , 1910 Va. LEXIS 50 (1910).

    Action for damages by mill limited by § 8.01-672 on appeal. —

    In an action on the case for consequential damages, occasioned by the erection of a mill, if the damages recovered be less than one hundred dollars (now $500) the defendant cannot appeal to the Supreme Court, notwithstanding it appears from the record that the right to erect the mill was drawn in question. Skipwith v. Young, 19 Va. (5 Munf) 276, 1816 Va. LEXIS 46 (1816).

    d.Right to Levy Tolls or Taxes.

    Reason for subdivision A 1 f. —

    The dominating reason which impelled the adoption of the provision conferring jurisdiction upon the Supreme Court to review any judgment involving the right of the State or any of its subdivisions to levy a tax, etc., was to insure uniform construction of such laws to serve as a guide to officers collecting taxes as well as to property owners. City of Richmond v. Eubank, 179 Va. 70 , 18 S.E.2d 397, 1942 Va. LEXIS 200 (1942).

    Liberal interpretation of subdivision A 1 f requires an expansion of the meaning of this jurisdictional provision to meet those cases which are clearly within the spirit or reason of the law, provided such an interpretation is not inconsistent with the language used. Hampton Rds. San. Dist. Comm'n v. Smith, 193 Va. 371 , 68 S.E.2d 497, 1952 Va. LEXIS 145 (1952).

    Subdivision authorizes appeal by sanitation district. —

    A sanitation district has the general and usual attributes of a municipal corporation, and hence is within the sphere of the legislative intent as expressed in subdivision A 1 f of this section. Hampton Rds. San. Dist. Comm'n v. Smith, 193 Va. 371 , 68 S.E.2d 497, 1952 Va. LEXIS 145 (1952)(see).Farquhar v. Board of Supvrs., 196 Va. 54 , 82 S.E.2d 577, 1954 Va. LEXIS 201 (1954).

    Right of city to tax bonds is appealable. —

    A question involving the right of a city to tax certain bonds is within the jurisdiction of the Supreme Court, regardless of the amount of the tax. City of Staunton v. Stout's Ex'rs, 86 Va. 321 , 10 S.E. 5 , 1889 Va. LEXIS 43 (1889).

    As is motion to recover payroll taxes. —

    A motion for judgment by the Unemployment Compensation Commission to recover payroll taxes was a controversy concerning the right of the State to levy tolls or taxes, or was one involving the construction of a statute imposing taxes, and came squarely within the jurisdiction of the Supreme Court as defined in this section. Unemployment Comp. Comm'n v. Harvey, 179 Va. 202 , 18 S.E.2d 390, 1942 Va. LEXIS 212 (1942).

    But judgment against town for shutting off water is not. —

    In a suit for damages caused by the action of a town in shutting off the water from the plaintiff’s hotel for nonpayment of a water bill, it was held that the record presented no controversy concerning the right of the town to levy toll or taxes, and since the judgment was for less than $300 (now $500) the Supreme Court had no jurisdiction of the cause. Town of Colonial Beach v. De Atley, 154 Va. 451 , 153 S.E. 734 , 1930 Va. LEXIS 228 (1930).

    Nor judgment where ordinance has been declared void. —

    Where ordinance imposing sewer tax had been declared void, there was no ordinance in force within the purview of this section to be construed, and the Supreme Court had no jurisdiction of an action for the refund of $109.32 paid as sewer taxes under such ordinance. City of Richmond v. Eubank, 179 Va. 70 , 18 S.E.2d 397, 1942 Va. LEXIS 200 (1942).

    e.Controversies Touching Constitutionality of a Law.

    The appellate jurisdiction of the Supreme Court is not determined by the value of the subject matter in controversy, in cases “involving the constitutionality of law.” Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626 , 59 S.E. 476 , 1907 Va. LEXIS 80 (1907); Norfolk & W.R.R. v. Pendleton, 86 Va. 1004 , 11 S.E. 1062 , 1890 Va. LEXIS 78 (1890), aff'd, 156 U.S. 667, 15 S. Ct. 413, 39 L. Ed. 574, 1895 U.S. LEXIS 2172 (1895).

    Any proceeding which necessarily puts the validity of a law in issue, whether it be by plea, instruction, or otherwise, is sufficient to give the Supreme Court jurisdiction of the case. Adkins & Co. v. City of Richmond, 98 Va. 91 , 34 S.E. 967 , 1900 Va. LEXIS 13 (1900).

    When constitutionality is already established, there is no jurisdiction. —

    Where the only ground of jurisdiction of the Supreme Court is the constitutionality of a statute, the validity of which has been established by former decisions, the writ of error will be dismissed for want of jurisdiction. Western Union Tel. Co. v. White, 113 Va. 421 , 74 S.E. 174 , 1912 Va. LEXIS 51 (1912).

    Error committed in the construction and interpretation of a statute will not of itself confer jurisdiction, but the constitutionality of the statute, as distinguished from its interpretation, is the source of appellate jurisdiction. Hulvey v. Roberts, 106 Va. 189 , 55 S.E. 585 , 1906 Va. LEXIS 120 (1906); Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626 , 59 S.E. 476 , 1907 Va. LEXIS 80 (1907).

    No direct appeal from justice’s judgment. —

    No appeal lies directly to the Supreme Court from a judgment of a justice of the peace involving the constitutionality of a law. Southern Ry. v. Hill, 106 Va. 501 , 56 S.E. 278 , 1907 Va. LEXIS 112 (1907).

    But there were means for an indirect appeal to the Supreme Court from the judgment of a justice involving the constitutionality of a statute. Southern Ry. v. Hill, 106 Va. 501 , 56 S.E. 278 , 1907 Va. LEXIS 112 (1907).

    f.Writs.

    Controversy involving title to office appealable. —

    When the subject matter of a controversy is title to an office, not matter merely pecuniary, an order of a judge of the circuit court is final, and, under the provisions of this section and § 8.01-671 , a writ of error will lie. Watkins v. Venable, 99 Va. 440 , 39 S.E. 147 , 1901 Va. LEXIS 63 (1901).

    Writs of error in mandamus proceedings. —

    The Supreme Court has jurisdiction under Va. Const., Art. VI, § 1, and the laws passed in pursuance thereof, of writs of error in proceedings by mandamus, although the amount involved is less than the jurisdictional amount. A mandamus, in a proper case, always involves some matter not merely pecuniary. The Constitution does not proprio vigore confer the jurisdiction, but this section and §§ 8.01-671 and 8.01-672 carry into effect the constitutional provision. Price v. Smith, 93 Va. 14 , 24 S.E. 474 , 1896 Va. LEXIS 46 (1896).

    Action compellable by mandamus not appealable. —

    An action which can certainly be compelled by mandamus cannot be appealed from. Richmond Cedar Works & Liberty Mut. Ins. Co. v. Harper, 129 Va. 481 , 106 S.E. 516 , 1921 Va. LEXIS 111 (1921).

    b.Controversies Touching Probate of a Will.

    Degree of finality required. —

    It is not every order of a court in a cause, however incidental such order may be, that will in good sense and wise policy, warrant an appellate proceeding, in order to correct an apprehended error therein, and such proceeding must probably be confined to those orders which have about them a certain character of finality and conclusiveness, either in respect to the general merits of the cause, or in respect to some branch thereof, or of some matter collateral thereto, and yet of great interest to the parties, or to one of them. Tucker v. Sandridge, 82 Va. 532 , 1886 Va. LEXIS 68 (1886).

    Order setting aside verdict and ordering new trial not appealable. —

    This section is to be considered along with § 64.1-83 [now see § 64.2-446 ], so that an appeal will not be allowed from any order, but only from a final order or sentence, so that an appeal allowed to the order of a circuit court setting aside the verdict of a jury against a will and awarding a new trial will be dismissed as improvidently awarded. Tucker v. Sandridge, 82 Va. 532 , 1886 Va. LEXIS 68 (1886).

    c.Controversies Touching Mills, Roadways, Ferries or Landings.

    Legislature has right to limit appeals under the general road law. —

    While it is true that under the general road law there is an unrestricted appeal to the Supreme Court, it is within the power of the legislature, by special enactment, to limit that right to judicial questions only. Wilburn v. Raines, 111 Va. 334 , 68 S.E. 993 , 1910 Va. LEXIS 50 (1910).

    Action for damages by mill limited by § 8.01-672 on appeal. —

    In an action on the case for consequential damages, occasioned by the erection of a mill, if the damages recovered be less than one hundred dollars (now $500) the defendant cannot appeal to the Supreme Court, notwithstanding it appears from the record that the right to erect the mill was drawn in question. Skipwith v. Young, 19 Va. (5 Munf) 276, 1816 Va. LEXIS 46 (1816).

    d.Right to Levy Tolls or Taxes.

    Reason for subdivision A 1 f. —

    The dominating reason which impelled the adoption of the provision conferring jurisdiction upon the Supreme Court to review any judgment involving the right of the State or any of its subdivisions to levy a tax, etc., was to insure uniform construction of such laws to serve as a guide to officers collecting taxes as well as to property owners. City of Richmond v. Eubank, 179 Va. 70 , 18 S.E.2d 397, 1942 Va. LEXIS 200 (1942).

    Liberal interpretation of subdivision A 1 f requires an expansion of the meaning of this jurisdictional provision to meet those cases which are clearly within the spirit or reason of the law, provided such an interpretation is not inconsistent with the language used. Hampton Rds. San. Dist. Comm'n v. Smith, 193 Va. 371 , 68 S.E.2d 497, 1952 Va. LEXIS 145 (1952).

    Subdivision authorizes appeal by sanitation district. —

    A sanitation district has the general and usual attributes of a municipal corporation, and hence is within the sphere of the legislative intent as expressed in subdivision A 1 f of this section. Hampton Rds. San. Dist. Comm'n v. Smith, 193 Va. 371 , 68 S.E.2d 497, 1952 Va. LEXIS 145 (1952)(see).Farquhar v. Board of Supvrs., 196 Va. 54 , 82 S.E.2d 577, 1954 Va. LEXIS 201 (1954).

    Right of city to tax bonds is appealable. —

    A question involving the right of a city to tax certain bonds is within the jurisdiction of the Supreme Court, regardless of the amount of the tax. City of Staunton v. Stout's Ex'rs, 86 Va. 321 , 10 S.E. 5 , 1889 Va. LEXIS 43 (1889).

    As is motion to recover payroll taxes. —

    A motion for judgment by the Unemployment Compensation Commission to recover payroll taxes was a controversy concerning the right of the State to levy tolls or taxes, or was one involving the construction of a statute imposing taxes, and came squarely within the jurisdiction of the Supreme Court as defined in this section. Unemployment Comp. Comm'n v. Harvey, 179 Va. 202 , 18 S.E.2d 390, 1942 Va. LEXIS 212 (1942).

    But judgment against town for shutting off water is not. —

    In a suit for damages caused by the action of a town in shutting off the water from the plaintiff’s hotel for nonpayment of a water bill, it was held that the record presented no controversy concerning the right of the town to levy toll or taxes, and since the judgment was for less than $300 (now $500) the Supreme Court had no jurisdiction of the cause. Town of Colonial Beach v. De Atley, 154 Va. 451 , 153 S.E. 734 , 1930 Va. LEXIS 228 (1930).

    Nor judgment where ordinance has been declared void. —

    Where ordinance imposing sewer tax had been declared void, there was no ordinance in force within the purview of this section to be construed, and the Supreme Court had no jurisdiction of an action for the refund of $109.32 paid as sewer taxes under such ordinance. City of Richmond v. Eubank, 179 Va. 70 , 18 S.E.2d 397, 1942 Va. LEXIS 200 (1942).

    e.Controversies Touching Constitutionality of a Law.

    The appellate jurisdiction of the Supreme Court is not determined by the value of the subject matter in controversy, in cases “involving the constitutionality of law.” Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626 , 59 S.E. 476 , 1907 Va. LEXIS 80 (1907); Norfolk & W.R.R. v. Pendleton, 86 Va. 1004 , 11 S.E. 1062 , 1890 Va. LEXIS 78 (1890), aff'd, 156 U.S. 667, 15 S. Ct. 413, 39 L. Ed. 574, 1895 U.S. LEXIS 2172 (1895).

    Any proceeding which necessarily puts the validity of a law in issue, whether it be by plea, instruction, or otherwise, is sufficient to give the Supreme Court jurisdiction of the case. Adkins & Co. v. City of Richmond, 98 Va. 91 , 34 S.E. 967 , 1900 Va. LEXIS 13 (1900).

    When constitutionality is already established, there is no jurisdiction. —

    Where the only ground of jurisdiction of the Supreme Court is the constitutionality of a statute, the validity of which has been established by former decisions, the writ of error will be dismissed for want of jurisdiction. Western Union Tel. Co. v. White, 113 Va. 421 , 74 S.E. 174 , 1912 Va. LEXIS 51 (1912).

    Error committed in the construction and interpretation of a statute will not of itself confer jurisdiction, but the constitutionality of the statute, as distinguished from its interpretation, is the source of appellate jurisdiction. Hulvey v. Roberts, 106 Va. 189 , 55 S.E. 585 , 1906 Va. LEXIS 120 (1906); Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626 , 59 S.E. 476 , 1907 Va. LEXIS 80 (1907).

    No direct appeal from justice’s judgment. —

    No appeal lies directly to the Supreme Court from a judgment of a justice of the peace involving the constitutionality of a law. Southern Ry. v. Hill, 106 Va. 501 , 56 S.E. 278 , 1907 Va. LEXIS 112 (1907).

    But there were means for an indirect appeal to the Supreme Court from the judgment of a justice involving the constitutionality of a statute. Southern Ry. v. Hill, 106 Va. 501 , 56 S.E. 278 , 1907 Va. LEXIS 112 (1907).

    f.Writs.

    Controversy involving title to office appealable. —

    When the subject matter of a controversy is title to an office, not matter merely pecuniary, an order of a judge of the circuit court is final, and, under the provisions of this section and § 8.01-671 , a writ of error will lie. Watkins v. Venable, 99 Va. 440 , 39 S.E. 147 , 1901 Va. LEXIS 63 (1901).

    Writs of error in mandamus proceedings. —

    The Supreme Court has jurisdiction under Va. Const., Art. VI, § 1, and the laws passed in pursuance thereof, of writs of error in proceedings by mandamus, although the amount involved is less than the jurisdictional amount. A mandamus, in a proper case, always involves some matter not merely pecuniary. The Constitution does not proprio vigore confer the jurisdiction, but this section and §§ 8.01-671 and 8.01-672 carry into effect the constitutional provision. Price v. Smith, 93 Va. 14 , 24 S.E. 474 , 1896 Va. LEXIS 46 (1896).

    Action compellable by mandamus not appealable. —

    An action which can certainly be compelled by mandamus cannot be appealed from. Richmond Cedar Works & Liberty Mut. Ins. Co. v. Harper, 129 Va. 481 , 106 S.E. 516 , 1921 Va. LEXIS 111 (1921).

    4.Interlocutory Decrees.

    a.In General.

    Interlocutory decrees are sometimes appealable. Armstrong v. Bryant, 189 Va. 760 , 55 S.E.2d 5, 1949 Va. LEXIS 215 (1949).

    Jurisdiction purely statutory. —

    The jurisdiction of the Supreme Court in relation to appeals from interlocutory decrees is purely statutory. Lancaster v. Lancaster, 86 Va. 201 , 9 S.E. 988 , 1889 Va. LEXIS 26 (1889).

    The appellate court in the absence of statute has no jurisdiction of an appeal from an interlocutory decree. Hobson v. Hobson, 105 Va. 394 , 53 S.E. 964 , 1906 Va. LEXIS 44 (1906); Smiley v. Provident Life & Trust Co., 106 Va. 787 , 56 S.E. 728 , 1907 Va. LEXIS 147 (1907).

    Every decree which leaves anything in the cause to be done by the court is interlocutory as between the parties remaining in the court. Dearing v. Walter, 175 Va. 555 , 9 S.E.2d 336, 1940 Va. LEXIS 200 (1940).

    Right of appeal optional. —

    By virtue of this section a party is given the right to appeal from certain interlocutory decrees if he desires to do so. Hess v. Hess, 108 Va. 483 , 62 S.E. 273 , 1908 Va. LEXIS 57 (1908)(see also).Southern Ry. v. Glenn's Adm'r, 98 Va. 309 , 36 S.E. 395 , 1900 Va. LEXIS 44 (1900).

    In chancery only. —

    Only in a case in chancery is a party authorized to appeal from a decree or order which is not final, and then only from such decree or order as the law prescribes. Elder v. Harris, 75 Va. 68 , 1880 Va. LEXIS 6 (1880).

    Orders as to joinder or substitution of parties generally not appealable. —

    As a general rule interlocutory decrees or orders overruling motions as to joinder of parties, or a substitution of parties, are not appealable. Thrasher v. Lustig, 204 Va. 399 , 131 S.E.2d 286, 1963 Va. LEXIS 163 (1963).

    b.Decree or Order as to Dissolution of Injunction.

    Appeal or rehearing. —

    Where complainants were dissatisfied or aggrieved by an order of the chancellor dissolving the injunction, their plain remedy, as prescribed by this section, was by appeal, or by application to the chancellor for a rehearing and reinstatement of the injunction, upon notice to the defendant; and, if that had been denied, they could have appealed from that denial. Fredenheim v. Rohr, 87 Va. 764 , 13 S.E. 193 , 1891 Va. LEXIS 127 (1891)(see also).Randolph v. Randolph, 27 Va. (6 Rand.) 194, 1828 Va. LEXIS 14 (1828).

    The right of appeal from an order refusing to dissolve an injunction seems to be settled in this State, and is placed on the ground that it adjudicates the principles of the cause. Lynch v. Clinch Motor Co., 131 Va. 202 , 108 S.E. 641 , 1921 Va. LEXIS 16 (1921).

    Jurisdictional amount must be involved. —

    No appeal lies from a decree dissolving an injunction where the subject involved is pecuniary, and is of less amount than $350 (now $500). The right of appeal given by this section is limited by § 8.01-672 . Shoemaker v. Bowman, 98 Va. 688 , 37 S.E. 278 , 1900 Va. LEXIS 94 (1900).

    Refusal to reinstate injunction. —

    An appeal lies from the refusal of a chancellor to reinstate an injunction. Webster v. Couch, 27 Va. (6 Rand.) 519, 1828 Va. LEXIS 30 (1828).

    Effect of § 8.01-626 . —

    The right of appeal given by this section is the same in a case for equitable relief by injunction as in other equity cases, and this right is not taken away by § 8.01-626 . French v. Chapin-Sacks Mfg. Co., 118 Va. 117 , 86 S.E. 842 , 1915 Va. LEXIS 129 (1915).

    c.Decree or Order Requiring Possession or Title of Property to Be Changed.

    Decree appointing a receiver is appealable. —

    A decree appointing a receiver to take charge of the assets of an insolvent association is appealable under this section, as it requires the possession of property to be changed. Deckert v. Chesapeake W. Co., 101 Va. 804 , 45 S.E. 799 , 1903 Va. LEXIS 91 (1903).

    Where property is in the hands of receivers of another court, a direction to the local receiver to intervene in that court and apply for the possession, and to take and receive the property from the receivers of that court is a sufficient change in possession and control to warrant an appeal to this court. Virginia Passenger & Power Co. v. Fisher, 104 Va. 121 , 51 S.E. 198 , 1905 Va. LEXIS 78 (1905).

    Decree for sale of land in partition is appealable. —

    A decree for the sale of land in a partition suit, though interlocutory, is appealable under this section, as it requires change of title and possession. This is especially true where the decree settles the principles of the cause. Stevens v. McCormick, 90 Va. 735 , 19 S.E. 742 , 1894 Va. LEXIS 55 (1894).

    Decree or order requiring money to be paid. —

    See Elder v. Harris, 75 Va. 68 , 1880 Va. LEXIS 6 (1880); Lancaster v. Lancaster, 86 Va. 201 , 9 S.E. 988 , 1889 Va. LEXIS 26 (1889); Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    d.Decree or Order Adjudicating Principles of Cause.

    “The principles of the cause” defined. —

    It must refer to principles which affect the subject of the litigation and the rules by which the court will determine the rights of the parties in the particular suit. It must mean that the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to apply those rules or methods to the facts of the case, in order to ascertain the relative rights of the parties with regard to the subject matter of the suit. Lancaster v. Lancaster, 86 Va. 201 , 9 S.E. 988 , 1889 Va. LEXIS 26 (1889); Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925).

    The phrase refers to principles which affect the subject matter of the litigation and the rules by which the rights of the parties to the suit are to be finally determined. Thrasher v. Lustig, 204 Va. 399 , 131 S.E.2d 286, 1963 Va. LEXIS 163 (1963).

    This clause is not applicable to judgments at law. —

    This section, providing for an appeal from an interlocutory decree in equity “adjudicating the principles of a cause” does not apply to judgments at law, which, under the plain terms of the section, must be final to be appealable. Baber v. Page, 137 Va. 489 , 120 S.E. 137 , 1923 Va. LEXIS 173 (1923).

    Under this clause it is immaterial whether a decree is technically a final decree. —

    An appeal will lie to the Supreme Court from a decree adjudicating the principles of a cause, although the same may not be a final decree, and an appeal also lies from a final decree. So that a party may appeal at once from a decree settling the principles in a cause against him, or he may, at his option, await the final decree in the cause and then appeal. Harper v. Vaughan, 87 Va. 426 , 12 S.E. 785 , 1891 Va. LEXIS 87 (1891).

    Decree as to validity of deed is appealable. —

    Where a decree decides that the deed attacked by the bill as fraudulent per se is not so, thus overruling one of the grounds on which relief is prayed for in the bill, it adjudicates, to a certain extent, the principles of the cause, and is therefore an appealable order. Norris v. Lake, 89 Va. 513 , 16 S.E. 663 , 1893 Va. LEXIS 66 (1893).

    Also an order overruling exceptions to answer. —

    In a suit to determine whether certain gifts from a parent to a child and her husband were gifts or advancements, an order overruling plaintiff’s exceptions to defendants’ answer, which decided against the plaintiff a very important question to him, namely, the right to the relief sought by his bill of a discovery by the defendants of all sums of money or property received by them or either of them from the decedent, determined a rule of evidence by which the rights of the parties were to be finally worked out and adjudicated a “principle of the cause,” and, hence, is appealable. Johnson v. Mundy, 123 Va. 730 , 97 S.E. 564 , 1918 Va. LEXIS 63 (1918).

    And decree denying injunction. —

    Where the court and the parties understood that the case was submitted for a decree upon the merits, no further proof being contemplated, and the court took the case “for final determination” pursuant to an agreed decree formerly entered in the cause, a decree that the complainant was not entitled to the injunction prayed for necessarily adjudicated the principles of the cause, and was clearly appealable under this section, notwithstanding that through inadvertence or otherwise the decree failed to dismiss the bill at complainant’s cost. Clintwood Coal Corp. v. Turner, 133 Va. 464 , 114 S.E. 117 , 1922 Va. LEXIS 110 (1922).

    Decree overruling plea that plaintiff was not real party in interest is not appealable. —

    A decree overruling defendant’s plea that plaintiff was not the real party in interest did not adjudicate the principles of the cause and hence was not appealable. Thrasher v. Lustig, 204 Va. 399 , 131 S.E.2d 286, 1963 Va. LEXIS 163 (1963).

    Nor is a decree as to sufficiency of supplemental pleading. —

    A decree which merely passed upon the sufficiency of a supplemental pleading, and dismissed it, is not an interlocutory decree adjudicating the principles of the cause from which an appeal lies, under this section. Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    b.Decree or Order as to Dissolution of Injunction.

    Appeal or rehearing. —

    Where complainants were dissatisfied or aggrieved by an order of the chancellor dissolving the injunction, their plain remedy, as prescribed by this section, was by appeal, or by application to the chancellor for a rehearing and reinstatement of the injunction, upon notice to the defendant; and, if that had been denied, they could have appealed from that denial. Fredenheim v. Rohr, 87 Va. 764 , 13 S.E. 193 , 1891 Va. LEXIS 127 (1891)(see also).Randolph v. Randolph, 27 Va. (6 Rand.) 194, 1828 Va. LEXIS 14 (1828).

    The right of appeal from an order refusing to dissolve an injunction seems to be settled in this State, and is placed on the ground that it adjudicates the principles of the cause. Lynch v. Clinch Motor Co., 131 Va. 202 , 108 S.E. 641 , 1921 Va. LEXIS 16 (1921).

    Jurisdictional amount must be involved. —

    No appeal lies from a decree dissolving an injunction where the subject involved is pecuniary, and is of less amount than $350 (now $500). The right of appeal given by this section is limited by § 8.01-672 . Shoemaker v. Bowman, 98 Va. 688 , 37 S.E. 278 , 1900 Va. LEXIS 94 (1900).

    Refusal to reinstate injunction. —

    An appeal lies from the refusal of a chancellor to reinstate an injunction. Webster v. Couch, 27 Va. (6 Rand.) 519, 1828 Va. LEXIS 30 (1828).

    Effect of § 8.01-626 . —

    The right of appeal given by this section is the same in a case for equitable relief by injunction as in other equity cases, and this right is not taken away by § 8.01-626 . French v. Chapin-Sacks Mfg. Co., 118 Va. 117 , 86 S.E. 842 , 1915 Va. LEXIS 129 (1915).

    c.Decree or Order Requiring Possession or Title of Property to Be Changed.

    Decree appointing a receiver is appealable. —

    A decree appointing a receiver to take charge of the assets of an insolvent association is appealable under this section, as it requires the possession of property to be changed. Deckert v. Chesapeake W. Co., 101 Va. 804 , 45 S.E. 799 , 1903 Va. LEXIS 91 (1903).

    Where property is in the hands of receivers of another court, a direction to the local receiver to intervene in that court and apply for the possession, and to take and receive the property from the receivers of that court is a sufficient change in possession and control to warrant an appeal to this court. Virginia Passenger & Power Co. v. Fisher, 104 Va. 121 , 51 S.E. 198 , 1905 Va. LEXIS 78 (1905).

    Decree for sale of land in partition is appealable. —

    A decree for the sale of land in a partition suit, though interlocutory, is appealable under this section, as it requires change of title and possession. This is especially true where the decree settles the principles of the cause. Stevens v. McCormick, 90 Va. 735 , 19 S.E. 742 , 1894 Va. LEXIS 55 (1894).

    Decree or order requiring money to be paid. —

    See Elder v. Harris, 75 Va. 68 , 1880 Va. LEXIS 6 (1880); Lancaster v. Lancaster, 86 Va. 201 , 9 S.E. 988 , 1889 Va. LEXIS 26 (1889); Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    d.Decree or Order Adjudicating Principles of Cause.

    “The principles of the cause” defined. —

    It must refer to principles which affect the subject of the litigation and the rules by which the court will determine the rights of the parties in the particular suit. It must mean that the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to apply those rules or methods to the facts of the case, in order to ascertain the relative rights of the parties with regard to the subject matter of the suit. Lancaster v. Lancaster, 86 Va. 201 , 9 S.E. 988 , 1889 Va. LEXIS 26 (1889); Lee v. Lee, 142 Va. 244 , 128 S.E. 524 , 1925 Va. LEXIS 334 (1925).

    The phrase refers to principles which affect the subject matter of the litigation and the rules by which the rights of the parties to the suit are to be finally determined. Thrasher v. Lustig, 204 Va. 399 , 131 S.E.2d 286, 1963 Va. LEXIS 163 (1963).

    This clause is not applicable to judgments at law. —

    This section, providing for an appeal from an interlocutory decree in equity “adjudicating the principles of a cause” does not apply to judgments at law, which, under the plain terms of the section, must be final to be appealable. Baber v. Page, 137 Va. 489 , 120 S.E. 137 , 1923 Va. LEXIS 173 (1923).

    Under this clause it is immaterial whether a decree is technically a final decree. —

    An appeal will lie to the Supreme Court from a decree adjudicating the principles of a cause, although the same may not be a final decree, and an appeal also lies from a final decree. So that a party may appeal at once from a decree settling the principles in a cause against him, or he may, at his option, await the final decree in the cause and then appeal. Harper v. Vaughan, 87 Va. 426 , 12 S.E. 785 , 1891 Va. LEXIS 87 (1891).

    Decree as to validity of deed is appealable. —

    Where a decree decides that the deed attacked by the bill as fraudulent per se is not so, thus overruling one of the grounds on which relief is prayed for in the bill, it adjudicates, to a certain extent, the principles of the cause, and is therefore an appealable order. Norris v. Lake, 89 Va. 513 , 16 S.E. 663 , 1893 Va. LEXIS 66 (1893).

    Also an order overruling exceptions to answer. —

    In a suit to determine whether certain gifts from a parent to a child and her husband were gifts or advancements, an order overruling plaintiff’s exceptions to defendants’ answer, which decided against the plaintiff a very important question to him, namely, the right to the relief sought by his bill of a discovery by the defendants of all sums of money or property received by them or either of them from the decedent, determined a rule of evidence by which the rights of the parties were to be finally worked out and adjudicated a “principle of the cause,” and, hence, is appealable. Johnson v. Mundy, 123 Va. 730 , 97 S.E. 564 , 1918 Va. LEXIS 63 (1918).

    And decree denying injunction. —

    Where the court and the parties understood that the case was submitted for a decree upon the merits, no further proof being contemplated, and the court took the case “for final determination” pursuant to an agreed decree formerly entered in the cause, a decree that the complainant was not entitled to the injunction prayed for necessarily adjudicated the principles of the cause, and was clearly appealable under this section, notwithstanding that through inadvertence or otherwise the decree failed to dismiss the bill at complainant’s cost. Clintwood Coal Corp. v. Turner, 133 Va. 464 , 114 S.E. 117 , 1922 Va. LEXIS 110 (1922).

    Decree overruling plea that plaintiff was not real party in interest is not appealable. —

    A decree overruling defendant’s plea that plaintiff was not the real party in interest did not adjudicate the principles of the cause and hence was not appealable. Thrasher v. Lustig, 204 Va. 399 , 131 S.E.2d 286, 1963 Va. LEXIS 163 (1963).

    Nor is a decree as to sufficiency of supplemental pleading. —

    A decree which merely passed upon the sufficiency of a supplemental pleading, and dismissed it, is not an interlocutory decree adjudicating the principles of the cause from which an appeal lies, under this section. Smith v. Pyrites Mining & Chem. Co., 101 Va. 301 , 43 S.E. 564 , 1903 Va. LEXIS 34 (1903).

    D.Who May Appeal.

    1. In General.
    2. Must Be Aggrieved.

    The “person” referred to in this section is the person who was a party to the suit in the court below, and who was aggrieved by the decree therein rendered. In order to render one a proper party to an appeal these two circumstances must concur. Southern Ry. v. Glenn's Adm'r, 102 Va. 529 , 46 S.E. 776 , 1904 Va. LEXIS 99 (1904).

    A person who is not a party to the proceeding in which the judgment of the court below complained of was rendered cannot obtain a supersedeas to such judgment. Board of Supvrs. v. Gorrell, 61 Va. (20 Gratt.) 419, 61 Va. (20 Gratt.) 484, 1871 Va. LEXIS 13 (1871); Ex parte Lester, 77 Va. 663 , 1883 Va. LEXIS 103 (1883).

    The “person” granted the right to appeal from a decree is one who is “aggrieved” thereby. Shocket v. Silberman, 209 Va. 490 , 165 S.E.2d 414, 1969 Va. LEXIS 131 (1969).

    Or one entitled to be party, but rejected when he attempts to intervene. —

    A litigant who seeks to become a party, and is entitled to become a party to proceedings in which he is interested, and is erroneously rejected, should not be required to seek relief in a roundabout fashion by a distinct and separate suit, but should be regarded, for the purposes of appeal, as possessing the status of one who is a formal party to the proceedings in which his rights and interests are being litigated. Jones v. Rhea, 130 Va. 345 , 107 S.E. 814 , 1921 Va. LEXIS 160 (1921).

    Where a person was not a party to the proceeding, did not ask that he be made a party, or assert any interest therein, he is not a “person interested” or a “party in interest” in, or a “party aggrieved” by, an order. Young v. SCC, 205 Va. 111 , 135 S.E.2d 129, 1964 Va. LEXIS 152 (1964).

    A writ of error cannot be awarded to a person who is dead, and, if inadvertently done, the writ will be dismissed, but a new writ may be applied for by his representative. Jackson v. Wickham, 112 Va. 128 , 70 S.E. 539 , 1911 Va. LEXIS 61 (1911).

    But personal representative of deceased party may appeal. Jackson v. Wickham, 112 Va. 128 , 70 S.E. 539 , 1911 Va. LEXIS 61 (1911); Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).

    And purchaser, but not bidder, at judicial sale is party. —

    There is a wide distinction between a bidder at a judicial sale and a purchaser. Until confirmed by the court the sale confers no rights. A bid is a mere offer. The purchaser becomes a quasi-party. Roberts v. Roberts, 54 Va. (13 Gratt.) 639, 1857 Va. LEXIS 24 (1857); Hildreth v. Turner, 89 Va. 858 , 17 S.E. 471 , 1893 Va. LEXIS 113 (1893).

    Assignee has rights of the assignor to appeal. —

    Where land subject to a mechanics’ lien is conveyed to a third party, such assignee has a right to prosecute an appeal in the name of his assignor from a decree holding the land subject to the lien. Hendricks v. Fields, 67 Va. (26 Gratt.) 447, 1875 Va. LEXIS 29 (1875).

    Infants appeal by guardian ad litem or next friend. —

    A guardian ad litem may appeal in the names of the infants, by himself as such guardian, from a decree adverse to their interests, but if he fails to do so, the infants may appeal by someone as their next friend. Givens v. Clem, 107 Va. 435 , 59 S.E. 413 , 1907 Va. LEXIS 60 (1907).

    Because one party cannot appeal does not prevent others. —

    The fact that a receiver appointed by a court cannot appeal from the judgment of that court, will not prevent the other party or parties to the action from appealing. Melendy v. Barbour, 78 Va. 544 , 1884 Va. LEXIS 29 (1884).

    An amicus curiae cannot appeal. Dunlop v. Commonwealth, 6 Va. (2 Call) 284, 1800 Va. LEXIS 21 (1800); Board of Supvrs. v. Gorrell, 61 Va. (20 Gratt.) 419, 61 Va. (20 Gratt.) 484, 1871 Va. LEXIS 13 (1871).

    a.General Rule.

    In order that an appeal may be successfully prosecuted, it must be shown that the appellant has been aggrieved. Rowland v. Rowland, 104 Va. 673 , 52 S.E. 366 , 1905 Va. LEXIS 149 (1905); Brown v. Howard, 106 Va. 262 , 55 S.E. 682 , 1906 Va. LEXIS 130 (1906).

    An appellant must have been aggrieved by the decree appealed from or he has no standing in the Supreme Court. Stone v. Henderson, 182 Va. 648 , 29 S.E.2d 845, 1944 Va. LEXIS 216 (1944).

    Under this section there can be no appeal, unless the party seeking same is a party to the suit and has been aggrieved by the decree entered. These two circumstances must be made to appear. Snavely v. Snavely, 151 Va. 270 , 144 S.E. 422 , 1928 Va. LEXIS 230 (1928).

    In order to entitle any person to a writ of error, or an appeal, he must be aggrieved by the judgment or decree. Edmunds v. Scott, 78 Va. 720 , 1884 Va. LEXIS 45 (1884); Osborne v. Kammer, 96 Va. 228 , 31 S.E. 19 , 1898 Va. LEXIS 81 (1898)(see also).Ex parte Lester, 77 Va. 663 , 1883 Va. LEXIS 103 (1883).

    Petitioner must be aggrieved in some particular manner. —

    In an action against a municipal body or officer, in order that the petitioners may be aggrieved by a judgment in contemplation of this section it must affirmatively appear that they had some direct interest in the subject matter of such proceeding. Any indirect interest they may have had solely as residents and taxpayers is not sufficient to make them proper parties to such proceeding, and they could not be aggrieved by the judgment rendered therein. It is not sufficient that the interest of such petitioner is merely that of any other taxpayer or resident, but it must be shown that the petitioner is aggrieved in some manner peculiar unto himself, aside and apart from that of other taxpayers and residents. Nicholas v. Lawrence, 161 Va. 589 , 171 S.E. 673 , 1933 Va. LEXIS 348 (1933).

    b.Application of Rule.

    Special commissioner not aggrieved. —

    A special commissioner appointed to make sale of land, cannot appeal from a decree setting aside the decree of sale. So far as it affects him in his capacity of commissioner, the setting aside of a decree of sale is not an appealable grievance within the contemplation of this section. Brown v. Howard, 106 Va. 262 , 55 S.E. 682 , 1906 Va. LEXIS 130 (1906).

    Nor is a party secondarily liable. —

    Under this section, a grantee of the timber on certain land, decreed only secondarily liable for a deficiency occurring on a sale of the land to satisfy a vendor’s lien, could not appeal prior to such sale and showing that a deficiency in excess of three hundred dollars (now $500) existed. C.L. Ritter Lumber Co. v. Coal Mt. Mining Co., 115 Va. 370 , 79 S.E. 322 , 1913 Va. LEXIS 46 (1913).

    A personal representative cannot appeal from a decree of sale of testator’s lands, not being interested therein. Edmunds v. Scott, 78 Va. 720 , 1884 Va. LEXIS 45 (1884).

    One joint tort-feasor cannot appeal judgment against others. —

    If judgment be against one joint tort-feasor, the other cannot have a writ of error to review it. Walton v. Miller, 109 Va. 210 , 63 S.E. 458 , 1909 Va. LEXIS 24 (1909).

    But creditor of decedent’s estate may appeal. —

    The fact that, after a report of debts against a decedent’s estate has been confirmed, other creditors come in by petition and are asserting debts against decedent’s estate does not prevent a party, whose rights have been prejudiced by the decree confirming the report of indebtedness, from appealing. Reid v. Windsor, 111 Va. 825 , 69 S.E. 1101 , 1911 Va. LEXIS 36 (1911).

    School board in tax levy proceedings. —

    In a proceeding by petition asking for relief from certain levies for local taxes, an order granting the relief prayed for was entered and a writ of error was granted. Defendant in error moved to dismiss the writ of error on the ground that the county school board was not a party to the proceeding within the meaning of this section, and therefore, had no right to apply for the writ. It was held that the county school board had the right to become a party defendant in the proceedings in the lower court as it did, and, being aggrieved by the judgment entered therein, was entitled to apply for the writ of error. School Bd. v. Shockley, 160 Va. 405 , 168 S.E. 419 , 1933 Va. LEXIS 221 (1933).

    Person active in proceedings to open highway. —

    Persons who were the most active parties throughout proceedings to open a highway, and the parties at whose cost the proceedings were dismissed, and at whose wharf the proposed road was to terminate, were such parties as had a sufficient interest to come within the meaning of the words “any person who thinks himself aggrieved by any judgment” granting an appeal in road controversies, and it was not necessary that any other persons who were petitioners or parties otherwise should assist in the prosecution of the appeal. In such cases an appeal by one inures to the benefit of all. Marchant & Taylor v. Mathews County, 139 Va. 723 , 124 S.E. 420 , 1924 Va. LEXIS 146 (1924).

    Appeal by successful party. —

    A writ of error may be brought by the plaintiff to reverse his own judgment, if erroneous or given for a less sum than he has a right to demand, in order to enable him to bring another action. Ballard v. Whitlock, 59 Va. (18 Gratt.) 235, 1867 Va. LEXIS 35 (1867).

    An executor or administrator as such is not an aggrieved party where the judgment affects only the rights of beneficiaries among themselves. An executor cannot litigate the claims of one set of legatees against the others at the expense of the estate. Shocket v. Silberman, 209 Va. 490 , 165 S.E.2d 414, 1969 Va. LEXIS 131 (1969).

    b.Application of Rule.

    Special commissioner not aggrieved. —

    A special commissioner appointed to make sale of land, cannot appeal from a decree setting aside the decree of sale. So far as it affects him in his capacity of commissioner, the setting aside of a decree of sale is not an appealable grievance within the contemplation of this section. Brown v. Howard, 106 Va. 262 , 55 S.E. 682 , 1906 Va. LEXIS 130 (1906).

    Nor is a party secondarily liable. —

    Under this section, a grantee of the timber on certain land, decreed only secondarily liable for a deficiency occurring on a sale of the land to satisfy a vendor’s lien, could not appeal prior to such sale and showing that a deficiency in excess of three hundred dollars (now $500) existed. C.L. Ritter Lumber Co. v. Coal Mt. Mining Co., 115 Va. 370 , 79 S.E. 322 , 1913 Va. LEXIS 46 (1913).

    A personal representative cannot appeal from a decree of sale of testator’s lands, not being interested therein. Edmunds v. Scott, 78 Va. 720 , 1884 Va. LEXIS 45 (1884).

    One joint tort-feasor cannot appeal judgment against others. —

    If judgment be against one joint tort-feasor, the other cannot have a writ of error to review it. Walton v. Miller, 109 Va. 210 , 63 S.E. 458 , 1909 Va. LEXIS 24 (1909).

    But creditor of decedent’s estate may appeal. —

    The fact that, after a report of debts against a decedent’s estate has been confirmed, other creditors come in by petition and are asserting debts against decedent’s estate does not prevent a party, whose rights have been prejudiced by the decree confirming the report of indebtedness, from appealing. Reid v. Windsor, 111 Va. 825 , 69 S.E. 1101 , 1911 Va. LEXIS 36 (1911).

    School board in tax levy proceedings. —

    In a proceeding by petition asking for relief from certain levies for local taxes, an order granting the relief prayed for was entered and a writ of error was granted. Defendant in error moved to dismiss the writ of error on the ground that the county school board was not a party to the proceeding within the meaning of this section, and therefore, had no right to apply for the writ. It was held that the county school board had the right to become a party defendant in the proceedings in the lower court as it did, and, being aggrieved by the judgment entered therein, was entitled to apply for the writ of error. School Bd. v. Shockley, 160 Va. 405 , 168 S.E. 419 , 1933 Va. LEXIS 221 (1933).

    Person active in proceedings to open highway. —

    Persons who were the most active parties throughout proceedings to open a highway, and the parties at whose cost the proceedings were dismissed, and at whose wharf the proposed road was to terminate, were such parties as had a sufficient interest to come within the meaning of the words “any person who thinks himself aggrieved by any judgment” granting an appeal in road controversies, and it was not necessary that any other persons who were petitioners or parties otherwise should assist in the prosecution of the appeal. In such cases an appeal by one inures to the benefit of all. Marchant & Taylor v. Mathews County, 139 Va. 723 , 124 S.E. 420 , 1924 Va. LEXIS 146 (1924).

    Appeal by successful party. —

    A writ of error may be brought by the plaintiff to reverse his own judgment, if erroneous or given for a less sum than he has a right to demand, in order to enable him to bring another action. Ballard v. Whitlock, 59 Va. (18 Gratt.) 235, 1867 Va. LEXIS 35 (1867).

    An executor or administrator as such is not an aggrieved party where the judgment affects only the rights of beneficiaries among themselves. An executor cannot litigate the claims of one set of legatees against the others at the expense of the estate. Shocket v. Silberman, 209 Va. 490 , 165 S.E.2d 414, 1969 Va. LEXIS 131 (1969).

    3.The Commonwealth.

    May appeal from petition for proceeds of sale of forfeited vessels. —

    Where vessels have been forfeited to the Commonwealth for violation of the oyster laws and sold under order of the court, and parties entitled to the proceeds petition therefor, the proceedings are not criminal but civil, and the Commonwealth is entitled to an appeal from a judgment in favor of petitioners if the amount in controversy exceeds the minimum jurisdictional amount. Commonwealth v. Mister, 79 Va. 5 , 1884 Va. LEXIS 52 (1884).

    4.Counties and Cities.

    Counties and cities may sue and be sued and have the right of appeal from an adverse decision both at law and in equity. Commonwealth v. Schmelz, 116 Va. 62 , 81 S.E. 45 , 1914 Va. LEXIS 8 (1914).

    5.Joint Appeals.

    Cases involving different issues between same parties require separate writs of error. —

    Three several judgments rendered in three different proceedings, commenced at different times in which different defenses were made, and never consolidated before the judgments were rendered, though between the same parties, cannot be brought to the Supreme Court by a single writ of error. Commonwealth v. Round Mt. Mining & Mfg. Co., 117 Va. 30 , 83 S.E. 1061 , 1915 Va. LEXIS 5 (1915).

    6.Estoppel to Appeal.

    Mere statement no basis of estoppel. —

    The mere statement of an appellant to an appellee that he did not intend to or would not appeal, does not prevent an appeal, unless there was a consideration for the statement, or the appellee has acted on it to his prejudice. Southern Ry. v. Glenn's Adm'r, 98 Va. 309 , 36 S.E. 395 , 1900 Va. LEXIS 44 (1900).

    Receiving amount less than claimed no waiver of appeal. —

    Where a decree is entered for a less sum than the party claims, receiving payment of the sum so decreed is not a waiver of errors, nor does it estop him from appealing from the decree as to sums not allowed. Southern Ry. v. Glenn's Adm'r, 98 Va. 309 , 36 S.E. 395 , 1900 Va. LEXIS 44 (1900).

    OPINIONS OF THE ATTORNEY GENERAL

    Appeal by Commonwealth’s Attorney. —

    Section 58.1-3003 does not authorize a Commonwealth’s Attorney to appeal to the Supreme Court of Virginia an order from a circuit court with respect to the imposition of taxes by a local governing body, but the tax payers may appeal at their own expense. See opinion of Attorney General to The Honorable A. Lee Ervin, Esquire, Commonwealth’s Attorney of Augusta County, 11-019, (3/18/11).

    CIRCUIT COURT OPINIONS

    Construction with other laws. —

    If the use of “any” in §§ 8.01-670 A 3 and 17.1-405 is not sufficient to abrogate the common law, then nor should its use in § 16.1-296 A have that effect. Huck v. Banfield, 94 Va. Cir. 182, 2016 Va. Cir. LEXIS 167 (Norfolk Aug. 25, 2016).

    OPINIONS OF THE ATTORNEY GENERAL

    Appeal by Commonwealth’s Attorney. —

    Section 58.1-3003 does not authorize a Commonwealth’s Attorney to appeal to the Supreme Court of Virginia an order from a circuit court with respect to the imposition of taxes by a local governing body, but the tax payers may appeal at their own expense. See opinion of Attorney General to The Honorable A. Lee Ervin, Esquire, Commonwealth’s Attorney of Augusta County, 11-019, (3/18/11).

    § 8.01-670.1. Repealed by Acts 2021, Sp. Sess. I, c. 489, cl. 2, effective January 1, 2022.

    History. Former § 8.01-670.1 , relating to appeal of interlocutory orders and decrees by permission; immunity was derived from Acts 2002, c. 107; 2020, c. 907.

    Cross references.

    For provisions as to jurisdictional amount effective January 1, 2022, see § 8.01-675.6 .

    § 8.01-671. Time within which petition must be presented.

    1. In cases where an appeal is permitted from the trial court to the Supreme Court, no petition shall be presented for an appeal to the Supreme Court from any final judgment, whether the Commonwealth be a party or not, that was rendered more than 90 days before the petition is presented, provided that an extension may be granted, in the discretion of the Supreme Court, in order to attain the ends of justice.
    2. No appeal to the Supreme Court from a decision of the Court of Appeals shall be granted unless a petition for appeal is filed within 30 days after the date of the decision appealed from. However, an extension may be granted, in the discretion of the court, in order to attain the ends of justice.

    History. Code 1950, § 8-463; 1977, cc. 2, 617; 1984, c. 703; 2017, cc. 651, 652; 2021, Sp. Sess. I, c. 489.

    Editor’s note.

    Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the amendment by Acts 1977, c. 2, to former § 8-643, corresponding to this section, was deemed to have amended this section.

    Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

    The 2017 amendments.

    The 2017 amendment by c. 651, in subsection A, substituted “90 days” for “three months” twice and “120 days” for “four months”; and made minor stylistic changes.

    The 2017 amendment by c. 652, in subsection A, substituted “90 days” for “three months” twice, deleted “in criminal cases” following “provided that” in clause (i), substituted “120 days” for “four months” in clause (ii); and made minor stylistic changes.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, rewrote the section.

    Cross references.

    As to failure of trial court clerk to deliver record to Supreme Court, see § 8.01-679 .

    For rules as to time and place of filing briefs, see Rule 5:26.

    Law Review.

    For survey of Virginia law on practice and pleading for the year 1969-1970, see 56 Va. L. Rev. 1500 (1970).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 127, 129, 135, 201, 206, 226.

    CASE NOTES

    Analysis

  • B. Period of Limitation.
    • I.Decisions Under Current Law.

    Legislature did not intend to require losing party to note interlocutory appeal or otherwise forfeit his right to later appeal the issue after a final adjudication. Smith v. Woodlawn Constr. Co., 235 Va. 424 , 368 S.E.2d 699, 4 Va. Law Rep. 2626, 1988 Va. LEXIS 54 (1988).

    This section conforms to the Va. Const., Art. IV, § 1, relating to the jurisdiction of the Supreme Court. The 1928 amendment to that section of the Constitution, which eliminated the limitations on the jurisdiction of the Supreme Court, in no way impaired the provision of this section providing certain limitations on such jurisdiction. Unemployment Comp. Comm'n v. Harvey, 179 Va. 202 , 18 S.E.2d 390, 1942 Va. LEXIS 212 (1942).

    A limitation on appeal is not unconstitutional. —

    A statute placing a limitation on the right of appeal even from existing judgments is not unconstitutional. Gaskins v. Commonwealth, 5 Va. (1 Call) 194, 1797 Va. LEXIS 22 (1797).

    This section does not regulate the time in which the record shall be completed in the trial court. Nethers v. Nethers, 160 Va. 335 , 168 S.E. 428 , 1933 Va. LEXIS 213 (1933); Avery v. County Sch. Bd., 192 Va. 329 , 64 S.E.2d 767, 1951 Va. LEXIS 179 (1951).

    It has no bearing on proceedings in trial court. —

    This section prohibits litigants from presenting to the Supreme Court an appeal from a final decree after the lapse of six (now four) months from the time it is rendered, but this section has no bearing whatever on what constitutes the record, or the time in which the record must be completed in the trial court. Usually all the proceedings in a chancery cause are in writing and the record is complete on the rendition of the final decree. Owen v. Owen, 157 Va. 580 , 162 S.E. 46 , 1932 Va. LEXIS 313 (1932).

    The jurisdiction of the Supreme Court in relation to appeals is purely statutory. Francis v. Francis, 181 Va. 373 , 25 S.E.2d 253, 1943 Va. LEXIS 189 (1943).

    The time limit set by this section is jurisdictional. If that time is permitted to elapse before a petition for appeal is presented, the petitioner is without remedy. The situation is not different where a remedy is barred by a statute of limitation. Johnson v. Merrit, 125 Va. 162 , 99 S.E. 785 , 1919 Va. LEXIS 16 (1919); Cousins v. Commonwealth, 187 Va. 506 , 47 S.E.2d 391, 1948 Va. LEXIS 241 (1948) (see Avery v. County School Bd., 192 Va. 329 , 64 S.E.2d 767 (1951)).

    The time limit fixed by this section is jurisdictional, and writs of error improvidently awarded by the Supreme Court will be dismissed. Tharp v. Commonwealth, 211 Va. 1 , 175 S.E.2d 277, 1970 Va. LEXIS 199 (1970).

    This rule is jurisdictional. Vaughn v. Vaughn, 215 Va. 328 , 210 S.E.2d 140, 1974 Va. LEXIS 284 (1974).

    Statutes of limitation are deemed statutes of repose, and this conception of such statutes applies with peculiar force to limitations upon the right of appeal. Tyson v. Scott, 116 Va. 243 , 81 S.E. 57 , 1914 Va. LEXIS 27 (1914).

    The law in force at the time an appeal is allowed governs. Sexton v. Crocket, 64 Va. (23 Gratt.) 857, 1873 Va. LEXIS 73 (1873); Allison v. Wood, 104 Va. 765 , 52 S.E. 559 , 1906 Va. LEXIS 143 (1906).

    A petition presented two days before an amendment became effective was governed by the prior law as to the time. New York P. & N.R.R. v. Bundick, Taylor, Corbin-Handy Co., 138 Va. 535 , 122 S.E. 261 , 1924 Va. LEXIS 45 (1924).

    A letter opinion which requested counsel to “prepare and submit a sketch of an appropriate decree” is not a final judgment. Commonwealth v. Forbes, 214 Va. 109 , 197 S.E.2d 195, 1973 Va. LEXIS 264 (1973).

    The trial judge is allowed time to examine a transcript of oral testimony presented to him. Avery v. County Sch. Bd., 192 Va. 329 , 64 S.E.2d 767, 1951 Va. LEXIS 179 (1951).

    The time taken by the reporter to transcribe the testimony is often included in the four months’ period. Avery v. County Sch. Bd., 192 Va. 329 , 64 S.E.2d 767, 1951 Va. LEXIS 179 (1951).

    II.Decisions Under Prior Law.

    B.Period of Limitation.

    1. Final Judgments and Decrees.
    2. Interlocutory Decrees.
    3. Calculation of Period.

    Decrees refusing bill of review. —

    Pursuant to this section, no appeal lies from a final decree dismissing a bill of review to a decree rendered more than six (now four) months prior to such final decree, unless the petition for such appeal be presented within six (now three) months from the date of such final decree. Mason v. Mason, 97 Va. 108 , 33 S.E. 1015 , 1899 Va. LEXIS 16 (1899).

    Filing or granting prayer of bill makes no difference. —

    Under this section it matters not whether decree of refusal is to filing of, or to granting prayer of bill of review to, final decree rendered more than twelve months (now four months) before, petitions from such decree of refusal must be presented within six months (now three months) from the date of refusal. Jordan v. Cunningham, 85 Va. 418 , 7 S.E. 540 , 1888 Va. LEXIS 49 (1888).

    Right of appeal optional. —

    While it is permissible, it is not necessary to appeal from certain interlocutory decrees at the time they are rendered. The party may appeal at any time within a year (now four months) after a final decree has been rendered in the cause, if all other requisites for appeal exist. Hess v. Hess, 108 Va. 483 , 62 S.E. 273 , 1908 Va. LEXIS 57 (1908).

    Limitation inapplicable to interlocutory decrees. —

    To a decree that adjudicates the principles of the case, though interlocutory because it leaves something in the cause to be done by the court, an appeal lies under this section, and to such decree the statutory period of limitation is inapplicable. Jameson v. Jameson, 86 Va. 51 , 9 S.E. 480 , 1889 Va. LEXIS 7 (1889).

    But limitation applies after final decree allowed. —

    The right given by this section to appeal from certain interlocutory decrees must be exercised within one year (now four months) from the rendition of a final decree in the cause, and all other requisites of an appeal must exist. Southern Ry. v. Glenn's Adm'r, 98 Va. 309 , 36 S.E. 395 , 1900 Va. LEXIS 44 (1900).

    Length of time held by judge not computed. —

    If the petition is presented within the time prescribed by law, it is immaterial how long the judge or court holds the petition and record, that time is not taken into account, and the time fixed by the statute within which the petition and record are to be received by the clerk is regulated by the receipt of the petition and record by the judge or court. New York P. & N.R.R. v. Bundick, Taylor, Corbin-Handy Co., 138 Va. 535 , 122 S.E. 261 , 1924 Va. LEXIS 45 (1924).

    Actual date of decree refusing bill of review controls. —

    Under the terms of this section, the petition for an appeal from a decree refusing a bill of review to a decree rendered more than six (now four) months prior thereto must be presented within six months (now three months) from the actual date of the decree appealed from, and not from the beginning or the end of the term at which it was rendered. Buford v. North Roanoke Land Co., 94 Va. 616 , 27 S.E. 509 , 1897 Va. LEXIS 116 (1897) (see also Mason v. Mason, 97 Va. 108 , 33 S.E. 1015 (1899)).

    First day excluded in computing time. —

    The final judgment to which a writ of error was obtained was rendered July 22, 1947. It was held that the four-month period began with the advent of July 23, and expired with the departure of November 22, that is, at midnight on November 22. Cousins v. Commonwealth, 187 Va. 506 , 47 S.E.2d 391, 1948 Va. LEXIS 241 (1948) (see School Bd. v. Alexander, 126 Va. 407 , 101 S.E. 349 (1919)).

    If last day falls on Sunday, time is extended. —

    If the last day for filing a petition for a writ of error falls on a Sunday the time limit is extended to the following Monday under § 1-13.27 [see now § 1-210]. Cousins v. Commonwealth, 187 Va. 506 , 47 S.E.2d 391, 1948 Va. LEXIS 241 (1948).

    § 8.01-672. Repealed by Acts 2021, Sp. Sess. I, c. 489, cl. 2, effective January 1, 2022.

    History. Former § 8.01-672 , relating to jurisdictional amount, was derived from Code 1950, § 8-464; 1977, c. 617.

    Cross references.

    For provisions as to jurisdictional amount effective January 1, 2022, see § 8.01-675.6 .

    Article 3. The Record.

    § 8.01-673. Inspection and return of records; certiorari when part of record is omitted; binding or retention of records.

    1. The Supreme Court may, when a case has before been in an appellate court, inspect the record upon the former appeal; and the court may, in any case, after reasonable notice to counsel in the appellate court, award a writ of certiorari to the clerk of the court below, and have brought before it, when part of a record is omitted, the whole or any part of such record.
    2. When an appeal is refused or after it has been allowed and decided, the Clerk of the Supreme Court shall return the record to the clerk of the circuit court or other tribunal. The clerk of such court or tribunal shall return the record upon the request of the Clerk of the Supreme Court. As soon as a case is decided, the Clerk of the Supreme Court shall cause the appendix and the briefs of counsel to be recorded and preserved in any manner which meets archival standards as recommended by the Archives and Records Division of The Library of Virginia.The manuscript of the record in a case in which an opinion was delivered prior to 1950 by the Supreme Court upon refusal of an appeal shall not be destroyed and shall be retained by the clerk of such court in his files.

    History. Code 1950, §§ 8-473, 8-501; 1974, c. 532; 1977, cc. 449, 617; 1984, c. 703; 1988, c. 324; 1994, c. 64.

    REVISERS’ NOTE

    Former §§ 8-473 and 8-501 have been combined into subsections A and B without material change.

    Cross references.

    For rule providing for return of original record to trial court, see Rule 5:13(d).

    Editor’s note.

    Former § 8-501, corresponding to subsection B of this section, was amended by Acts 1977, c. 449. Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, that amendment was deemed to have amended this section.

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 199, 207.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Enlarging record on appeal. —

    When the record on appeal has been transmitted in compliance with Supreme Court Rule 5:13 by the clerk of the trial court to the Clerk of the Supreme Court and an appeal has been awarded, the record on appeal cannot be enlarged except upon a grant by the Supreme Court of a writ of certiorari under this section. Town of Narrows v. Clear-View Cable TV, Inc., 227 Va. 272 , 315 S.E.2d 835, 1984 Va. LEXIS 243, cert. denied, 469 U.S. 925, 105 S. Ct. 315, 83 L. Ed. 2d 253, 1984 U.S. LEXIS 4072 (1984); Godfrey v. Commonwealth, 227 Va. 460 , 317 S.E.2d 781, 1984 Va. LEXIS 214 (1984).

    II.Decisions Under Prior Law.

    Editor’s note.

    Authorization of section. —

    This section authorizes the court in any case to award certiorari by which the clerk of the court below is directed to send to the appeals court any and all parts of the record which have been omitted from the record transmitted. Washington v. Commonwealth, 216 Va. 185 , 217 S.E.2d 815, 1975 Va. LEXIS 268 (1975).

    Enlarging record on appeal. —

    When the record has been transmitted in compliance with Rule 5:15 by the clerk of the trial court to the clerk of the Supreme Court, and a writ of error or appeal has been granted, the record on appeal cannot be enlarged, except upon award of a writ of certiorari as provided in this section. Old Dominion Iron & Steel Corp. v. VEPCO, 215 Va. 658 , 212 S.E.2d 715, 1975 Va. LEXIS 207 (1975).

    Either party may have portions of record brought up by certiorari. —

    If parts of the record not required by statute to be certified upon appeal are material to the issue, either party may have a certiorari to bring them up. Craddock v. Craddock, 158 Va. 58 , 163 S.E. 387 , 1932 Va. LEXIS 240 (1932).

    Section cures defect in record. —

    Where a motion to dismiss a writ of error was based upon the fact that the petition, when presented to the judge awarding the writ, was not accompanied by a complete transcript of the record, but before the motion was presented to the court the record was completed in the manner prescribed by this section, the motion to dismiss the writ was properly overruled. Bowen v. Bowen, 122 Va. 1 , 94 S.E. 166 , 1917 Va. LEXIS 77 (1917).

    Presumption that entire record before appellate court. —

    Where the record is certified and there is no suggestion that all the record is not before the court and no application for certiorari is made under this section, it is presumed that the whole record is before the court. Craddock v. Craddock, 158 Va. 58 , 163 S.E. 387 , 1932 Va. LEXIS 240 (1932).

    Power exercised. —

    See Shreck v. Virginia Hot Springs Co., 140 Va. 429 , 125 S.E. 316 , 1924 Va. LEXIS 183 (1924).

    Article 4. The Petition.

    § 8.01-674. With whom filed; endorsement thereon; reference to justice or justices; when deemed to be filed.

    The petition for appeal to the Supreme Court shall be filed with the Clerk of the Supreme Court. The Clerk shall endorse thereon the day and year he received it and shall refer it to one or more justices of the Supreme Court as the Court shall direct. A petition shall, for the purposes of § 8.01-671 , be deemed to be timely filed if it is mailed postage prepaid to the Clerk by registered or certified mail and if the official postal receipt therefor is exhibited upon the demand of the Clerk or any party and it shows mailing within the prescribed time limits.

    History. Code 1950, § 8-475; 1976, c. 615; 1977, c. 617; 1984, c. 703.

    Cross references.

    For rule on transmission of record, see Rule 5:13.

    For rule of court as to time and place of filing petitions, see Rule 5:17.

    Law Review.

    For survey of Virginia practice and pleading for the year 1975-1976, see 62 Va. L. Rev. 1460 (1976).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, § 141.

    CASE NOTES

    Appeal from Industrial Commission (now Workers’ Compensation Commission) decision. —

    Where plaintiff’s petition for appeal from a decision of the Commission was timely forwarded by certified mail, postage prepaid, to the clerk of the court, the petition was deemed timely filed since there is no reason for a distinction in the manner in which petitions for appeal from the Commission are physically filed as compared to those in civil and criminal litigation. Reese v. Wampler Foods, Inc., 222 Va. 249 , 278 S.E.2d 870, 1981 Va. LEXIS 297 (1981).

    § 8.01-675. Repealed by Acts 1984, c. 703, effective Oct. 1, 1984.

    § 8.01-675.1. When dismissal final; when reinstated.

    After the dismissal of an appeal by the Supreme Court, no other appeal shall be allowed to or from the same judgment. When an appeal is dismissed by reason of the nonpayment of the writ tax within the time required by law, the Court at its first session after such dismissal may on motion of any party for good cause shown and upon payment of such tax set aside the dismissal; and thereupon the appeal may be perfected as though no such dismissal had taken place. A motion under this section shall be made only after reasonable notice to the adverse party or his counsel.

    History. 1984, c. 703.

    Cross references.

    For application of this section to criminal cases, see § 19.2-325 .

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 141, 229, 230.

    CASE NOTES

    Editor’s note.

    The cases cited below was decided under corresponding provisions of former law. The term “this section,” as used below, refers to former provisions.

    Dismissal serves to affirm judgment. —

    By virtue of this section, the dismissal of a writ of error or appeal has the effect of affirming the judgment or decree appealed from. While the dismissal of a writ of error is in a sense an affirmance of the judgment appealed from, it is an affirmance in a limited sense only. Aetna Cas. & Sur. Co. v. Board of Supvrs., 160 Va. 11 , 168 S.E. 617 , 1933 Va. LEXIS 188 (1933).

    An order dismissing an appeal or writ of error for failure to print the record effects the same purpose as an affirmance. Cobbs v. Gilchrist, 80 Va. 503 , 1885 Va. LEXIS 88 (1885); Woodson v. Leyburn, 83 Va. 843 , 3 S.E. 873 , 1887 Va. LEXIS 130 (1887); Beecher v. Lewis, 84 Va. 630 , 6 S.E. 367 , 1888 Va. LEXIS 119 (1888).

    Under this section the dismissal of an appeal for failure to give the appeal bond operates an affirmance of the decree of the lower court, without any consideration of it by this court. Hicks v. Roanoke Brick Co., 94 Va. 741 , 27 S.E. 596 , 1897 Va. LEXIS 134 (1897), overruled, Boisseau v. Bass' Adm'r, 100 Va. 207 , 40 S.E. 647 , 1902 Va. LEXIS 17 (1902).

    But dismissal does not impart validity to void judgment, when dismissal is upon a ground which does not bring into issue whether judgment void or not. The dismissal does not give to the judgment any validity which it would not have had before the appeal. Aetna Cas. & Sur. Co. v. Board of Supvrs., 160 Va. 11 , 168 S.E. 617 , 1933 Va. LEXIS 188 (1933).

    Finality of decree. —

    The case made for the Supreme Court by an appeal from a decree of the court below, whether final or interlocutory, is as to the Supreme Court a complete case in itself, and the decree of that court therein is final and conclusive between the parties, as well upon the court itself as upon the court below. The Supreme Court can do nothing more in the course of the same litigation, until a new and different appeal is brought up to it from some decree of the court below, rendered in the cause upon subsequent proceedings in that court, and the Supreme Court can only review and revise the decree without interfering with its own former decree. Campbell v. Campbell, 63 Va. (22 Gratt.) 649, 1872 Va. LEXIS 55 (1872); Cobbs v. Gilchrist, 80 Va. 503 , 1885 Va. LEXIS 88 (1885).

    The Supreme Court affirmed an interlocutory decree of a circuit court. Afterwards in the circuit court a petition was filed to rehear said decree, and was dismissed, and the petitioners appealed. It was held that such a decree, under the circumstances cannot be reheard. Woodson v. Leyburn, 83 Va. 843 , 3 S.E. 873 , 1887 Va. LEXIS 130 (1887).

    Only matters involved in appeal can be inquired into. —

    Where three successive decrees are allowed from three decrees in a cause and the first two are dismissed, it seems that on the last appeal which relates only to the last decree, matters involved in the former appeals can not be inquired into, under the spirit of this section. Barksdale v. Fitzgerald, 76 Va. 892 , 1881 Va. LEXIS 77 (1881).

    § 8.01-675.2. Rehearing.

    The Supreme Court, on the petition of a party, shall rehear and review any case decided by such court if one of the justices who decides the case adversely to the petitioner certifies that in his opinion there is good cause for such rehearing. However, a notice of a petition for rehearing shall be filed as provided by the Rules of Court and the petition for rehearing shall be filed within thirty days after the entry of the judgment with the clerk, who shall note the date of such filing on the order book. The judgment resulting from any such rehearing shall be entered forthwith by the clerk who shall transmit a certified copy thereof to the clerk of the court below, to be entered by him as provided by § 8.01-685 .

    History. 1984, c. 703.

    Cross references.

    For application of this section to criminal cases, see § 19.2-325 .

    As to Supreme Court of Virginia requirements for the filing of petition for rehearing after consideration by the full Court, see Rule 5:37, Rules of the Virginia Supreme Court.

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, § 236.

    CASE NOTES

    Rehearing not granted where party failed to file additional briefs. —

    Where a cause has been submitted with leave to file additional briefs before a certain day, and such briefs are not filed, the court will decide the case upon the arguments made. The failure of counsel to file additional briefs within the time given by the court was not occasioned by the fault of the court, and a petition to rehear will not be granted where the case was decided after the briefs should have been filed. Nicholas v. Nicholas, 100 Va. 660 , 42 S.E. 669 , 1902 Va. LEXIS 72 (1902) (decided under prior law).

    Chapter 26.1. Appeals to the Court of Appeals.

    § 8.01-675.3. Time within which appeal must be taken; notice.

    Except as provided in § 19.2-400 for pretrial appeals by the Commonwealth in criminal cases and in § 19.2-401 for cross appeals by the defendant in such pretrial appeals, a notice of appeal to the Court of Appeals in any case within the jurisdiction of the court shall be filed within 30 days from the date of any final judgment order, decree, or conviction. When an appeal from an interlocutory decree or order is permitted, the notice of appeal shall be filed within 30 days from the date of such decree or order, except for pretrial appeals pursuant to § 19.2-398 . However, an extension may be granted, in the discretion of the Court of Appeals, in order to attain the ends of justice.

    For purposes of this section, § 17.1-408 , and an appeal pursuant to § 19.2-398 , a petition for appeal in a criminal case or a notice of appeal to the Court of Appeals, shall be deemed to be timely filed if (i) it is mailed postage prepaid by registered or certified mail and (ii) the official postal receipt, showing mailing within the prescribed time limits, is exhibited upon demand of the clerk or any party.

    History. 1984, c. 703; 1987, c. 710; 2003, c. 109; 2021, Sp. Sess. I, c. 489.

    Cross references.

    For application of this section to criminal cases, see § 19.2-325 .

    Editor’s note.

    Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

    The 2003 amendments.

    The 2003 amendment by c. 109 inserted “pretrial” preceding “appeals” throughout the section, substituted “pretrial appeals” for “cases” following “in such” in the first sentence, and twice substituted “30” for “thirty.”

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, in the first paragraph, inserted the second “notice of” and added the last sentence.

    CASE NOTES

    Effect of clear error in reference. —

    A notice of appeal that is timely filed and correctly styled, but potentially misleading due to a clear error of reference, does not automatically fail on procedural grounds. Carlton v. Paxton, 14 Va. App. 105, 415 S.E.2d 600, 8 Va. Law Rep. 2405, 1992 Va. App. LEXIS 89 (1992).

    The time requirement for filing is mandatory, and failure of the appellant to file timely the notice of appeal requires dismissal of the appeal. Zion Church Designers & Bldrs. v. McDonald, 18 Va. App. 580, 445 S.E.2d 704, 10 Va. Law Rep. 1609, 1994 Va. App. LEXIS 412 (1994).

    Where a father did not timely appeal a trial court’s final order requiring, inter alia, extensive psychotherapy as a condition to visitation, and the father’s requested expert testimony was admitted, the appeal was without merit. ABC v. XYZ, 2003 Va. App. LEXIS 430 (Va. Ct. App. Aug. 12, 2003).

    Failure to timely file notice of appeal naming indispensable party required dismissal. —

    Mother’s appeal of the termination of her parental rights was dismissed due to her failure to timely name the children’s guardian ad litem, an indispensable party under § 16.1-266 , as an appellee in either the notice of appeal or the accompanying certificate of service; the failure to name the guardian ad litem as an appellee meant that the appeal was not perfected under Rule 5A:16, and the appellate court never acquired jurisdiction over the guardian ad litem. Watkins v. Fairfax County Dep't of Family Servs., 42 Va. App. 760, 595 S.E.2d 19, 2004 Va. App. LEXIS 164 (2004).

    Although defendant filed a notice of appeal within the 30-day time period under Va. Sup. Ct. R. 5A:6 and § 8.01-675.3 , defendant’s failure to join a county, which prosecuted defendant for driving under the influence under Amherst County, Va., Code § 9.1 and was an indispensable party, within that mandatory time period deprived the appellate court of jurisdiction. Woody v. Commonwealth, 53 Va. App. 188, 670 S.E.2d 39, 2008 Va. App. LEXIS 568 (2008).

    Timeliness of appeal where subsequent judgment is entered. —

    Mother’s appeal of a circuit court order awarding custody of her child to the father was timely because the notice of appeal was filed within thirty days of the circuit court’s order awarding the father attorney’s fees, which was rendered a month after the child custody order; the custody order was not final because the circuit court retained jurisdiction to address the father’s request for attorney’s fees. Alexander v. Flowers, 51 Va. App. 404, 658 S.E.2d 355, 2008 Va. App. LEXIS 139 (2008).

    Timeliness of appeal where subsequent void judgment is entered. —

    Group home administrator’s notice of appeal of a final order affirming a finding of physical neglect was untimely because it was filed 79 days after entry of the final order. Although it was filed only eight days after the entry of an order denying the administrator’s second motion for reconsideration, that order was a nullity because the circuit court did not purport to modify, vacate, or suspend its previous order within 21 days, as required under Va. Sup. Ct. R. 1:1. Wells v. Shenandoah Valley Dep't of Soc. Servs., 56 Va. App. 208, 692 S.E.2d 286, 2010 Va. App. LEXIS 176 (2010).

    Tolling of time limit. —

    In order to toll the 30-day time limit for filing a notice of appeal once a final order has been entered, it is not sufficient for the aggrieved party to file a post-judgment motion to set aside or reconsider the order or for the trial judge to express a desire to consider action or take an issue under advisement; rather, the trial judge must issue an order modifying, vacating or suspending the order within 21 days of the entry of the order. Vokes v. Vokes, 28 Va. App. 349, 504 S.E.2d 865, 1998 Va. App. LEXIS 509 (1998).

    Timeliness of appeal where subsequent judgment is entered. —

    In a post-decree action, a husband’s appeal was timely asserted, where the trial court’s earlier order was appealable because it resolved all issues of guilt regarding a contempt charge against the husband; however, it was not a final order because the sentence for the contempt charge was left open for review on a later date, which became the effective date for appeal purposes. Mihnovets v. Mihnovets, 2004 Va. App. LEXIS 410 (Va. Ct. App. Aug. 31, 2004).

    Time for filing appeal in bifurcated proceeding is not extended. —

    To preserve the desertion issue for appellate review, the husband should have filed a timely appeal from the divorce decree; the time for filing an appeal in a bifurcated proceeding is not extended. Hall v. Hall, 9 Va. App. 426, 388 S.E.2d 669, 6 Va. Law Rep. 1331, 1990 Va. App. LEXIS 25 (1990).

    Time for filing notice of appeal. —

    Time for filing an estate’s appeal began to run from the trial court’s entry of its order marked “final for purposes of appeal” and not from any earlier order. Estate of Hackler v. Hackler, 44 Va. App. 51, 602 S.E.2d 426, 2004 Va. App. LEXIS 454 (2004).

    Appellate court lacked jurisdiction over defendant’s appeal because his notice of appeal was untimely where he had a statutory right to challenge his conviction by timely filing his own notice of appeal or by cross-appealing the Government’s appeal, but did neither. Greer v. Commonwealth, 67 Va. App. 324, 796 S.E.2d 422, 2017 Va. App. LEXIS 40 (2017).

    Custody order not “final order.” —

    Former husband did not waive his argument regarding custody by failing to file a notice of appeal within 30 days from entry of the custody order. While the order stated that it was “final as to child custody,” as it also continued the case for determination of spousal support, child support, and equitable distribution, it did not dispose of the whole controversy and thus was not a final order that started the running of the appeal period. Kapur v. Kapur, 2009 Va. App. LEXIS 234 (Va. Ct. App. May 19, 2009).

    Appeal dismissed. —

    Wife’s appeal of a child support order was dismissed when the wife failed to timely appeal the child support order, which was final when the trial court vacated the original divorce decree, but reinstated the divorce, and awarded child support. Jordan v. Jordan, 2004 Va. App. LEXIS 285 (Va. Ct. App. June 22, 2004).

    Wife’s motion to dismiss a husband’s appeal for failure to timely file his notice of appeal as required by Va. Sup. Ct. R. 5A:6(a) was granted because the husband failed to file his notice of appeal within thirty days of the trial court’s order; therefore, the court of appeals had no jurisdiction to review his arguments. Carrithers v. Harrah, 60 Va. App. 69, 723 S.E.2d 638, 2012 Va. App. LEXIS 117 (2012).

    § 8.01-675.4. Inspection and return of records; certiorari when part of record is omitted; retention of records.

    When a case has previously been in an appellate court, the Court of Appeals may inspect the record of the former appeal. The court may, in any case, after reasonable notice to counsel in the appellate court, award a writ of certiorari to the clerk of the trial court and have brought before it, when part of a record is omitted, the whole or any part of such record. As soon as a case is decided, the clerk of the Court of Appeals shall cause the appendix, if any, and briefs of counsel to be recorded and preserved in any manner which meets archival standards as recommended by the Archives and Records Division of The Library of Virginia.

    History. 1984, c. 703; 1988, c. 197; 1994, c. 64.

    Cross references.

    As to Court of Appeals rules as to making exhibits part of the record on appeal, see Rule 5A:7, Rules of the Virginia Supreme Court.

    CASE NOTES

    This section does not restrict the Court of Appeals to ordering only those portions of the appellate record as defined by the Rules of Court. Watkins v. Commonwealth, 26 Va. App. 335, 494 S.E.2d 859, 1998 Va. App. LEXIS 23 (1998).

    Burden of producing transcript. —

    Although the defendant, acting pro se, failed to make the missing transcript of the trial below part of the record on appeal, the issue of voluntary waiver of counsel is so fundamental that the onus of producing the missing transcript was on the Commonwealth in that situation. Watkins v. Commonwealth, 26 Va. App. 335, 494 S.E.2d 859, 1998 Va. App. LEXIS 23 (1998).

    § 8.01-675.5. Appeal of interlocutory orders and decrees by permission; immunity.

    1. When, prior to the commencement of trial, the circuit court has entered in any pending civil action an order or decree that is not otherwise appealable, any party may file in the circuit court a motion requesting that the circuit court certify such order or decree for interlocutory appeal.The motion shall include a concise analysis of the statutes, rules, or cases believed to be determinative of the issues and request that the court certify in writing that the order or decree involves a question of law as to which (i) there is substantial ground for difference of opinion; (ii) there is no clear, controlling precedent on point in the decisions of the Supreme Court of Virginia or the Court of Appeals of Virginia; (iii) determination of the issues will be dispositive of a material aspect of the proceeding currently pending before the court; and (iv) it is in the parties’ best interest to seek an interlocutory appeal. If the request for certification is opposed by any party, the parties may brief the motion in accordance with the Rules of Supreme Court of Virginia.Within 15 days of the entry of an order by the circuit court granting such certification, a petition for appeal may be filed with the Court of Appeals. If the Court of Appeals determines that the certification by the circuit court has sufficient merit, it may, in its discretion, permit an appeal to be taken from the interlocutory order or decree and shall notify the certifying circuit court and counsel for the parties of its decision.The consideration of any petition and appeal by the Court of Appeals shall be in accordance with the applicable provisions of the Rules of the Supreme Court of Virginia and shall not take precedence on the docket unless the court so orders.
    2. When, prior to the commencement of trial, the circuit court has entered in any pending civil action an order granting or denying a plea of sovereign, absolute, or qualified immunity that, if granted, would immunize the movant from compulsory participation in the proceeding, the order is eligible for immediate appellate review. Any person aggrieved by such order may, within 15 days of the entry of such order, file a petition for review with the Court of Appeals in accordance with the procedures set forth in § 8.01-626 . If the assigned judge or judges grant the petition for review, the clerk shall refer the appeal to a panel of the court, as the court shall direct, and the parties shall prosecute the appeal in the manner provided for in the Rules of Supreme Court of Virginia.
    3. No petitions or appeals under this section shall stay proceedings in the circuit court unless the circuit court or appellate court orders such a stay upon a finding that (i) the petition or appeal could be dispositive of the entire civil action or (ii) there exists good cause, other than the pending petition or appeal, to stay the proceedings.
    4. The failure of a party to seek interlocutory review under this section shall not preclude review of the issue on appeal from a final order. An order by the Court of Appeals denying interlocutory review under this section shall not preclude review of the issue on appeal from a final order, unless the order denying such interlocutory review provides for such preclusion.

    History. 2021, Sp. Sess. I, c. 489.

    Editor’s note.

    Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

    § 8.01-675.6. Jurisdictional amount.

    No petition shall be presented for an appeal from any judgment of a circuit court except in cases in which the controversy is for a matter of $500 or more in value or amount, and except in cases in which it is otherwise expressly provided; nor to a judgment of any circuit court when the controversy is for a matter less in value or amount than $500, exclusive of costs, unless there be drawn in question a freehold or franchise or the title or bounds of land, or some other matter not merely pecuniary.

    History. 2021, Sp. Sess. I, c. 489.

    Editor’s note.

    Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

    Chapter 26.2. Appeals Generally.

    Article 1. Appeal Bond.

    § 8.01-676. Repealed by Acts 1984, c. 703.

    § 8.01-676.1. Security for appeal.

    1. Security for costs of appeal of right to Court of Appeals in civil cases. — A party filing a notice of an appeal of right to the Court of Appeals in a civil case shall simultaneously file an appeal bond or irrevocable letter of credit in the penalty of $500, or such sum as the trial court may require, subject to subsection E, conditioned upon paying all costs and fees incurred in the Court of Appeals and the Supreme Court if it takes cognizance of the claim. If the appellant wishes suspension of execution in a civil appeal, the security shall also be conditioned and shall be in such sum as the trial court may require as provided in subsection C.
    2. Security for costs on petition for appeal to Court of Appeals or Supreme Court. — An appellant whose petition for appeal is granted by the Court of Appeals or the Supreme Court shall (if he has not done so) within 15 days from the date of the Certificate of Appeal file an appeal bond or irrevocable letter of credit in the same penalty as provided in subsection A, conditioned on the payment of all damages, costs, and fees incurred in the Court of Appeals and in the Supreme Court.
    3. Security for suspension of execution. — An appellant who wishes execution of the judgment or award from which an appeal is sought to be suspended during the appeal shall, subject to the provisions of subsection J, file a suspending bond or irrevocable letter of credit conditioned upon the performance or satisfaction of the judgment and payment of all damages incurred in consequence of such suspension, and except as provided in subsection D, execution shall be suspended upon the filing of such security and the timely prosecution of such appeal. Such security shall be continuing and additional security shall not be necessary except as to any additional amount that may be added or to any additional requirement that may be imposed by the courts.
    4. Suspension of execution in decrees for support and custody; injunctions. — The court from which an appeal is sought may refuse to suspend the execution of decrees for support and custody, and may also refuse suspension when a judgment refuses, grants, modifies, or dissolves an injunction.
    5. Increase or decrease in penalty or other modification of security.
      1. The trial court or commission may, upon the motion of any party (i) for good cause shown, modify the terms of the security for the appeal or of the security for the suspension of execution of a judgment and (ii) resolve any objection to the form or issuer of a bond or letter of credit at any time until the Court of Appeals or the Supreme Court acts upon any similar motion. Any party aggrieved by the decision of the trial court or commission may request a review of such decision by the appellate court before which the case is pending.
      2. The Court of Appeals or the Supreme Court may order that the penalty or any other terms or requirements of the security for the appeal or of the security for the suspension of execution of a judgment be modified for good cause shown (i) upon the motion of any party or (ii) if such request is made in the brief of any party filed in the Court of Appeals, or in the Petition for Appeal or the appellee’s Brief in Opposition filed in the Supreme Court or the Court of Appeals.
      3. Affidavits and counter-affidavits may be filed by the parties containing facts pertinent to such request. Any increase or decrease in the amount of or other modification of the security so ordered shall be effected in the clerk’s office of the trial court within 15 days of the order of the trial court, the Court of Appeals, or the Supreme Court.
      4. If an increase so ordered is not effected within 15 days, the appeal shall be dismissed, in the case of the security required under subsection A or B, or the suspension of execution of a judgment shall be discontinued, in the case of the security required under subsection C.
    6. By whom executed. — Each bond filed shall be executed by a party or another on his behalf, and by surety approved by the clerk of the court from which appeal is sought, or by the clerk of the Supreme Court or the clerk of the Court of Appeals if the bond is ordered by such Court. Any letter of credit posted as security for an appeal shall be in a form acceptable to the clerk of the court from which appeal is sought, or by the clerk of the Supreme Court or the Court of Appeals if the security is ordered by such court. The letter of credit shall be from a bank incorporated or authorized to conduct banking business under the laws of this Commonwealth or authorized to do business in this Commonwealth under the banking laws of the United States, or a federally insured savings institution located in this Commonwealth.
    7. Appeal from State Corporation Commission; security for costs. — When an appeal of right is entered from the State Corporation Commission to the Supreme Court, and no suspension of the order, judgment, or decree appealed from is requested, such appeal bond or letter of credit shall be filed when and in the amount required by the clerk of the Supreme Court, whose action shall be subject to review by the Supreme Court.
    8. Appeal from State Corporation Commission; suspension. — Any judgment, order, or decree of the State Corporation Commission subject to appeal to the Supreme Court may be suspended by the Commission or by the Supreme Court pending decision of the appeal if the Commission or the Supreme Court deems such suspension necessary for the proper administration of justice but only upon the written application of an appellant after reasonable notice to all other parties in interest and the filing of a suspending bond or irrevocable letter of credit with such conditions, in such penalty, and with such surety thereon as the Commission or the Supreme Court may deem sufficient. But no surety shall be required if the appellant is any county, city or town of this Commonwealth, or the Commonwealth.
    9. Forms of bonds; letters of credit; where filed. — The Clerk of the Supreme Court shall prescribe separate forms for bonds, one for costs alone, one for suspension of execution, and one for both and a form for irrevocable letters of credit, to which the bond or bonds or irrevocable letters of credit given shall substantially conform. The forms for each bond and the letter of credit shall be published in the Rules of Court. It shall be sufficient if the bond or letter of credit, when executed as required, is filed with the trial court, clerk of the Virginia Workers’ Compensation Commission, or the clerk of the State Corporation Commission, whichever is applicable, and no personal appearance in the trial court, Virginia Workers’ Compensation Commission, or State Corporation Commission by the principal, the surety on the bond or the bank issuing the letter of credit shall be required as a condition precedent to its filing.
    10. In any civil litigation under any legal theory, the amount of the suspending bond or irrevocable letter of credit to be furnished during the pendency of all appeals or discretionary reviews of any judgment granting legal, equitable, or any other form of relief in order to stay the execution thereon during the entire course of appellate review by any courts shall be set in accordance with applicable laws or court rules, and the amount of the suspending bond or irrevocable letter of credit shall include an amount equivalent to one year’s interest calculated from the date of the notice of appeal in accordance with § 8.01-682 . However, the total suspending bond or irrevocable letter of credit that is required of an appellant and all of its affiliates shall not exceed $25 million, regardless of the value of the judgment.
    11. Dissipation of assets. — If the appellee proves by a preponderance of the evidence that a party bringing an appeal, for whom the suspending bond or irrevocable letter of credit requirement has been limited or waived, is purposefully dissipating its assets or diverting assets outside the jurisdiction of the United States courts for the purpose of evading the judgment, the limitation or waiver shall be rescinded and a court may require the appellant to post a suspending bond or irrevocable letter of credit in an amount up to the full amount of the judgment. Dissipation of assets shall not include those ongoing expenditures made from assets of the kind that the appellant made in the regular course of business prior to the judgment being appealed, such as the payment of stock dividends and other financial incentives to the shareholders of publicly owned companies, continued participation in charitable and civic activities, and other expenditures consistent with the exercise of good business judgment.
    12. For good cause shown, a court may otherwise waive the filing of a suspending bond or irrevocable letter of credit as to the damages in excess of, or other than, the compensatory damages. Subject to the provisions of subsection K, the parties may agree to waive the requirement of a suspending bond or irrevocable letter of credit or agree to a suspending bond or irrevocable letter of credit in an amount less than the compensatory damages.
    13. Exemption. — When an appeal is proper to protect the estate of a decedent or person under disability, or to protect the interest of the Commonwealth or any county, city, or town of this Commonwealth, no security for appeal shall be required.
    14. Indigents. — No person who is an indigent shall be required to post security for an appeal bond.
    15. Virginia Workers’ Compensation Commission. — No claimant who files an appeal from a final decision of the Virginia Workers’ Compensation Commission with the Court of Appeals shall be required to post security for costs as provided in subsection A if such claimant has not returned to his employment or by reason of his disability is unemployed. Such claimant shall file an affidavit describing his disability and employment status with the Court of Appeals together with a motion to waive the filing of the security under subsection A.
    16. Time for filing security for appeal. — The appeal bond or letter of credit prescribed in subsections A and B is not jurisdictional and the time for filing such security in cases before the Court of Appeals or the Supreme Court may be extended by a judge or justice of the court before which the case is pending on motion for good cause shown and to attain the ends of justice. The effect of failing to perfect an appeal bond shall be governed by the Rules of Supreme Court of Virginia.
    17. Consideration of appeal bond, suspending bond, or letter of credit by Court of Appeals or Supreme Court. — A determination on an issue affecting an appeal bond, suspending bond, or letter of credit in a case before the Court of Appeals or the Supreme Court may be considered by an individual judge of such court rather than by a panel of judges.
    18. This section applies to injunction bonds required pursuant to § 8.01-631 .
    19. In accordance with § 1-205, if the party required to post an appeal or suspending bond tenders such bond together with cash in the full amount required by this section to the clerk specified in this section, no surety shall be required.

    History. 1984, c. 703; 1986, c. 89; 1987, cc. 460, 684; 1988, c. 883; 1996, c. 77; 2000, c. 100; 2004, cc. 328, 356; 2010, c. 494; 2012, cc. 8, 77; 2016, c. 178; 2021, Sp. Sess. I, c. 489.

    Editor’s note.

    Acts 1986, c. 89, cl. 4, provides: “That subsection L [now subsection P] of this act shall apply to all appeals filed heretofore in the Court of Appeals except that this provision shall not revive appeals in which there can be no further proceedings in any court.” The act became effective March 16, 1986.

    Acts 2004, cc. 328 and 356, cls. 2, provide: “That the provisions of this act are procedural and not substantive in nature.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

    Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

    The 2000 amendments.

    The 2000 amendment by c. 100, effective March 10, 2000, and applicable to any action which is pending on or which is filed after that date, inserted “subject to the provisions of subsection J” in subsection C, added subsections J, K and L, and redesignated former subsections J, K, K1, L, and M as present subsections M, N, O, P and Q.

    The 2004 amendments.

    The 2004 amendments by cc. 328 and 356 are identical, and rewrote subsection J; and substituted “a court may require the appellant to post a bond or irrevocable letter of credit in an amount up to” for “the bond requirement shall be reinstated for a” in the first sentence of subsection K; and made minor stylistic changes.

    The 2010 amendments.

    The 2010 amendment by c. 494 inserted “or to any additional requirement which may be imposed” in the last sentence of subsection C; rewrote subsection E; inserted subsection J1; and in subsection Q, inserted “or Supreme Court” in the catchline, and inserted “or the Supreme Court” near the middle.

    The 2012 amendments.

    The 2012 amendments by cc. 8 and 77 are identical, and deleted “of this section” following “subsection A or B” twice in subsection O and added subsection R.

    The 2016 amendments.

    The 2016 amendment by c. 178, in subsection C, substituted “a suspending bond” for “an appeal bond”; in subsection E, inserted the subdivision designations and added subdivision E 1; in subdivision E 2, deleted “when it considers a petition for appeal” preceding “may order” and inserted “(i) upon the motion of any party or (ii)”; in subdivision E 3, inserted “the trial court” preceding “the Court of Appeals”; in subdivision E 4, inserted “or B” and deleted the second sentence pertaining to circumstances when the trial court could modify the penalty or security; in subsection I, deleted “appeal” following “separate forms for”; in subsection J, twice substituted “suspending bond” for “appeal bond” and substituted “and the amount of the suspending bond or irrevocable letter of credit shall include an amount equivalent to one year’s interest calculated from the date of the notice of appeal in accordance with § 8.01-682 . However” for “except that”; deleted subsection J 1, pertaining to objections to modifications to letter of credit or bond; in subsection K, substituted “suspending bond” for “appeal bond,” deleted “pursuant to subsection J” following “limited or waived,” deleted “granted pursuant to subsection J” following “limitation or waiver” and inserted “suspending”; in subsection L, substituted “a suspending bond” for “an appeal bond” and added the second sentence; in subsection P, added the last sentence; in subsection Q, inserted “suspending bond”; and added subsection S.

    The 2021 Sp. Sess. I amendments.

    The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, in subsection A, inserted “in civil cases,” “in a civil case,” and “in a civil appeal”; substituted “subsection A” for “subsection A or B” twice in subsection O; and made stylistic changes.

    Cross references.

    As to who may give bond for writ or order, see § 8.01-4.2 .

    As to security for appeal in Supreme Court, see Rule 5:24.

    As to security for appeal in Court of Appeals, see Rule 5A:17.

    Law Review.

    For survey of Virginia practice and pleading for the year 1977-1978, see 64 Va. L. Rev. 1501 (1978).

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For Survey article, “Civil Practice and Procedure,” see 48 U. Rich. L. Rev. 1 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 125, 142, 146, 149, 150, 153, 163, 167.

    CASE NOTES

    Analysis

    I.General Consideration.

    Editor’s note.

    Some of the cases cited below were decided under corresponding provisions of former law, and under former versions of this section. The terms “the statute” and “this section,” as used below, refer to former provisions.

    II.Legislative intent. —

    It appears to have been clearly the legislative intent under this section and § 8.01-251 , to require the appellant, if he desires to delay the plaintiff in exercising the right established by his judgment, to give bond to protect the judgment creditor against loss on account of the delay. Seal v. Puckett, 159 Va. 297 , 165 S.E. 496 , 1932 Va. LEXIS 197 (1932).

    Applicability. —

    Circuit court erred in refusing a client’s request to post an appeal bond and suspend payment of an award of attorney’s fees out of funds held by the circuit court because subsection C of § 8.01-676.1 applies to both judgments and awards. Henderson v. Ayres & Hartnett, P.C., 285 Va. 556 , 740 S.E.2d 518, 2013 Va. LEXIS 49 (2013).

    The purpose of requiring a suspending bond is to protect the plaintiff against any loss or damage he may sustain by reason of the suspension of his right to proceed with the collection of his judgment against the defendant. Jacob v. Commonwealth, 148 Va. 236 , 138 S.E. 574 , 1927 Va. LEXIS 225 (1927).

    Bond expressly required. —

    It is expressly provided by this section that, with certain exceptions, an appeal, writ of error, or supersedeas shall not take effect until a sufficient bond with prescribed conditions is given. Morris v. Deshazo, 25 Va. (4 Rand.) 460, 1826 Va. LEXIS 63 (1826); Cardwell v. Allen, 69 Va. (28 Gratt.) 184, 1877 Va. LEXIS 63 (1877); Forrest v. Hawkins, 169 Va. 470 , 194 S.E. 721 , 1938 Va. LEXIS 223 (1938).

    Court’s discretion to set bond amount. —

    Where the wife filed a motion to compel her husband to execute a separation and property settlement agreement as provided in a signed memorandum, the trial court awarded the wife $8,193.54 in attorneys’ fees. The trial court did not abuse its discretion in setting the supersedeas bond at $10,000, which was higher than the amount of the attorneys’ fees award; subsection A of § 8.01-676.1 authorizes the trial court to set an amount, as it requires. O'Connor v. O'Connor, 2003 Va. App. LEXIS 629 (Va. Ct. App. Dec. 9, 2003).

    Trial court did not act improperly in initially setting the husband’s bond at $30,000 and later advising that, because the proposed security for the appeal bond was real property, the property had to have a value of $60,000. Jones v. Jones, 2004 Va. App. LEXIS 455 (Va. Ct. App. Sept. 28, 2004).

    Trial court did not abuse its discretion in denying the husband’s motion for a supersedeas bond; the trial court had the authority to set a bond amount, but was not required to do so, and no error was apparent in the record regarding its decision to deny the husband’s motion in that regard. Holzberlein v. Holzberlein, 2005 Va. App. LEXIS 312 (Va. Ct. App. Aug. 16, 2005).

    Appeal bond may not be less than the amount of judgment. —

    The plain language of the statute providing for a stay of enforcement does not give the trial court discretion to set an appeal bond in an amount less than the judgment. Tauber v. Commonwealth ex rel. Kilgore, 263 Va. 520 , 562 S.E.2d 118, 2002 Va. LEXIS 62, cert. denied, 537 U.S. 1002, 123 S. Ct. 496, 154 L. Ed. 2d 398, 2002 U.S. LEXIS 8117 (2002).

    Where an appeal is “proper to protect the estate of a decedent,” no appeal bond is required. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).

    The estate of a decedent to be protected, within the meaning of this section, is any claim or right which a personal representative as such must protect or defend because this is his bounden duty and because he is appointed for that very purpose. Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930).

    Effect of death pending appeal. —

    After an appeal has been taken by a party himself, in due time so far as the appeal is concerned, and he thereafter dies before the expiration of the statutory period within which an appeal bond would have had to have been given had he lived, leaving the appeal pending and unaffected by the mere fact of his death, the continued pendency of the appeal being in such case unquestionably necessary to protect his estate after his death, the case falls within the first exception of this section. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).

    Executors and administrators may appeal without bond. —

    An executor or administrator who, on his qualification gives bond and security according to law, for the faithful performance of the duties of his office, is allowed to prosecute an appeal without giving an appeal bond, in all cases where the object of the appeal is to assert the rights, or protect the interests of the estate which he represents. Wilson v. Wilson, 11 Va. (1 Hen. & M.) 15, 1806 Va. LEXIS 37 (1806); Linney v. Holliday, 24 Va. (3 Rand.) 1, 1825 Va. LEXIS 3 (1825); M'Cauley v. Griffin, 45 Va. (4 Gratt.) 9, 1846 Va. LEXIS 83 (1846).

    No bond was required by the judge who allowed the writ of error. It was claimed that under this section a bond was imperative. The plaintiff in error was suing as an administrator and this section has long been construed to relieve every administrator from giving such a bond. This exception of administrators applies to actions for wrongful death under § 8.01-50 . Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930).

    Even when no security required of them on qualification. —

    Where an executor or administrator with the will annexed, has been allowed by the direction of the testator, and the order of the court of probate, to qualify without giving security, he ought not to be required to give security for the prosecution of an appeal, where the appeal is for the protection of the estate. M'Cauley v. Griffin, 45 Va. (4 Gratt.) 9, 1846 Va. LEXIS 83 (1846).

    But bond required when judgments against them personally. —

    In an action against an executor, judgment was entered against him personally, instead of de bonis testatoris. Though the judgment was plainly erroneous, an appeal or supersedeas could only be allowed him upon his giving an appeal bond with surety. Pugh v. Jones, 33 Va. (6 Leigh) 299, 1835 Va. LEXIS 33 (1835).

    Where in suit in equity against defendant as executor and in his own right as legatee, a decree is rendered against him personally, on appeal allowed him from the decree, an appeal bond with surety shall be required of him. Erskine v. Henry, 33 Va. (6 Leigh) 378, 1835 Va. LEXIS 37 (1835).

    Bond and security for prosecuting appeals is required where the decree is partly against an executor, as such, and partly against him in his own right. Dunton v. Robins, 16 Va. (2 Munf) 341, 1811 Va. LEXIS 73 (1811).

    Where an executor is sued in chancery, for a subject which is in part personal to himself, and in part touching his executorial character, he ought not to be compelled to give an appeal bond for the latter, as the subject is covered by his official bond. Shearman v. Christian, 22 Va. (1 Rand.) 393, 1823 Va. LEXIS 17 (1823).

    Legatees required to give bond. —

    Where executors and legatees jointly appeal, the legatees, being in possession of the property in dispute, may be ruled to give security for the prosecution of the appeal. Sadler v. Green, 11 Va. (1 Hen. & M.) 26, 1806 Va. LEXIS 44 (1806).

    On an appeal by executors, from a decree in favor of distributees or legatees, for their proportions of the estate, the executors ought to give bond and security. Porter v. Arnold, 24 Va. (3 Rand.) 479, 1825 Va. LEXIS 34 (1825).

    Assignee in bankruptcy not within exception. —

    An assignee in bankruptcy filed a bill in the State court, which was dismissed with costs. The assignee dying, the appellant was appointed his successor and presented a petition for appeal. It was insisted that no bond was required, as the appeal was partly to protect decedent’s estate. It was held that the bond was necessary, the second assignee had nothing, as such, to do with his predecessor’s estate. Pace v. Ficklin, 76 Va. 292 , 1882 Va. LEXIS 32 (1882).

    Appeals by state agencies. —

    Pursuant to § 53.1-8, the Virginia Department of Corrections is an administrative subdivision of the Commonwealth of Virginia; therefore, under § 8.01-676.1 , it was not required to post an appeal bond in its appeal from the reversal of its termination of a corrections officer. Va. Dep't of Corr. v. Compton, 47 Va. App. 202, 623 S.E.2d 397, 2005 Va. App. LEXIS 517 (2005).

    Marking of counsel’s name on docket no waiver. —

    The mere marking of his name by the counsel of the defendant in error on the docket of the court as counsel for defendant in error will not amount to a release of the plaintiff in error from his obligation to give the bond required by law. Otterback v. Alexandria & F.R.R., 67 Va. (26 Gratt.) 940, 1875 Va. LEXIS 66 (1875).

    Objection should be made. —

    A supersedeas is allowed by the appellate court, without requiring a supersedeas bond, when one ought to have been required, and the cause is docketed without objection. This is not good cause to dismiss the supersedeas, on motion made after lapse of six years from the time of awarding it. Pugh v. Jones, 33 Va. (6 Leigh) 299, 1835 Va. LEXIS 33 (1835).

    Delay in moving to dismiss, until after time for giving bond has expired, held not to constitute waiver. —

    The failure to give the required bond was not discovered by appellees until after the expiration of the time for perfecting the appeal. At the next term of the Supreme Court, and before the record was printed, they moved to dismiss the appeal. It was held that appellees had not waived the failure to give the proper bond. Clinch Valley Lumber Corp. v. Hagan Estates, Inc., 167 Va. 1 , 187 S.E. 440 , 1936 Va. LEXIS 266 (1936).

    Where case dealt with request to modify, not execute upon, support order, subsection D of this section was not applicable. Decker v. Decker, 17 Va. App. 562, 440 S.E.2d 411, 10 Va. Law Rep. 812, 1994 Va. App. LEXIS 29 (1994).

    An appeal bond can be taken only after a writ of error has been granted. Branch v. Richmond Cold Storage, 146 Va. 680 , 132 S.E. 848 , 1926 Va. LEXIS 357 (1926), overruled, Hopkins v. Griffin, 241 Va. 307 , 402 S.E.2d 11, 7 Va. Law Rep. 1731, 1991 Va. LEXIS 29 (1991).

    The filing of an appeal bond with the clerk must be in pursuance of an allowance of the appeal, entered on the record. Burch v. White, 24 Va. (3 Rand.) 104, 1824 Va. LEXIS 50 (1724).

    This section is in line with the provision of § 8.01-679 that the time the petition is in the hands of the Supreme Court is not to be taken into account in computing the time after final judgment when the petition must be presented. If the petition is presented within the time prescribed by law, it is then immaterial how long the court holds it. Sutherland v. Swannanoa Corp., 189 Va. 149 , 52 S.E.2d 92, 1949 Va. LEXIS 157 (1949).

    Under this section an attorney could give the bond in his own name for, on behalf of, or in the place and stead of the plaintiffs. Brumley v. Grimstead, 170 Va. 340 , 196 S.E. 668 , 1938 Va. LEXIS 192 (1938).

    A bond executed by a surety only, without any principal obligor, is insufficient, and a supersedeas issued thereon ought to be quashed. Day v. Pickett, 18 Va. (4 Munf) 104, 1813 Va. LEXIS 34 (1813); Miller v. Blannerhassett, 19 Va. (5 Munf) 197, 1816 Va. LEXIS 34 (1816).

    Judge may reduce the penalty of the bond without impairing or annulling the appellant’s right to a supersedeas. Effinger v. Kenney, 65 Va. (24 Gratt.) 116, 1873 Va. LEXIS 7 (1873).

    An appeal bond being a statutory bond, no obligation which is not provided by statute can be written in it. Branch v. Richmond Cold Storage, 146 Va. 680 , 132 S.E. 848 , 1926 Va. LEXIS 357 (1926), overruled, Hopkins v. Griffin, 241 Va. 307 , 402 S.E.2d 11, 7 Va. Law Rep. 1731, 1991 Va. LEXIS 29 (1991).

    A bond accompanied by a certified check is not a substantial compliance with this section. Clinch Valley Lumber Corp. v. Hagan Estates, Inc., 167 Va. 1 , 187 S.E. 440 , 1936 Va. LEXIS 266 (1936).

    Petition for writ of habeas corpus. —

    Because it was clear that the Governor of California made the extradition request for an inmate in Virginia, albeit through a duly authorized agent, the circuit court in Virginia had to give full faith and credit to the manner in which the request was communicated to the Governor of Virginia, and the requesting authorities accurately named and identified the fugitive sought in an indictment. The court ordered the suspension of the execution of its order and ordered the inmate to remain in Virginia pending resolution of an appeal. Soriano v. Commonwealth, 98 Va. Cir. 243, 2018 Va. Cir. LEXIS 41 (Fairfax County Mar. 19, 2018).

    Timely bond is jurisdictional. —

    The requirement of a timely appeal bond under this section is jurisdictional, and is not a defect which may be cured pursuant to Rule 5A:17. Lipscomb v. Rosenthal Chevrolet, No. 0404-85 (Ct. of Appeals Dec. 10, 1985); O’Brien v. O’Brien, No. 0335-85 (Ct. of Appeals Dec. 23, 1985).

    Failure to post the appeal bond by the last day on which appellant could file his notice of appeal is a defect which cannot be cured under Rule 5A:17. That rule is applicable when there is a defect in the bond that has been filed, not when no bond is posted at all. Adams v. Adams, Nos. 0064-84 and 0347-85 (Ct. of Appeals Feb. 28, 1986).

    Failure to post a bond is a jurisdictional and not a mere defect. Adams v. Adams, Nos. 0064-84 and 0347-85 (Ct. of Appeals Feb. 28, 1986).

    Court of Appeals and Supreme Court have substantially same requirements. —

    The appeal bond required by statute and the rules applicable to their filing are substantially the same in the Court of Appeals and the Supreme Court. Duckett v. Duckett, 1 Va. App. 279, 337 S.E.2d 759, 1985 Va. App. LEXIS 99 (1985).

    No application to appeal from juvenile court proceeding. —

    Denial of a parent’s appeal of the denial of a bond motion for an appeal of an order incarcerating the parent for failure to pay child support was summarily affirmed as a parent did not post an appeal bond and there was no indigency exception to subsection H of § 16.1-296 ; section 16.1-107 concerned appeals of the general district court, rather than the juvenile courts, and § 8.01-676.1 did not apply to appeals of the juvenile courts. Shadwell v. Commonwealth, 2008 Va. App. LEXIS 444 (Va. Ct. App. Sept. 30, 2008).

    Time to file appeal bond may not be extended under Rule 5A:3(b), as that rule allows for the extension of time limits prescribed “in these Rules” and the bond is required by a statute. Lipscomb v. Rosenthal Chevrolet, No. 0404-85 (Ct. of Appeals Dec. 10, 1985); O’Brien v. O’Brien, No. 0335-85 (Ct. of Appeals Dec. 23, 1985).

    Bond expressly required. —

    It is expressly provided by this section that, with certain exceptions, an appeal, writ of error, or supersedeas shall not take effect until a sufficient bond with prescribed conditions is given. Morris v. Deshazo, 25 Va. (4 Rand.) 460, 1826 Va. LEXIS 63 (1826); Cardwell v. Allen, 69 Va. (28 Gratt.) 184, 1877 Va. LEXIS 63 (1877); Forrest v. Hawkins, 169 Va. 470 , 194 S.E. 721 , 1938 Va. LEXIS 223 (1938).

    Court’s discretion to set bond amount. —

    Where the wife filed a motion to compel her husband to execute a separation and property settlement agreement as provided in a signed memorandum, the trial court awarded the wife $8,193.54 in attorneys’ fees. The trial court did not abuse its discretion in setting the supersedeas bond at $10,000, which was higher than the amount of the attorneys’ fees award; subsection A of § 8.01-676.1 authorizes the trial court to set an amount, as it requires. O'Connor v. O'Connor, 2003 Va. App. LEXIS 629 (Va. Ct. App. Dec. 9, 2003).

    Trial court did not act improperly in initially setting the husband’s bond at $30,000 and later advising that, because the proposed security for the appeal bond was real property, the property had to have a value of $60,000. Jones v. Jones, 2004 Va. App. LEXIS 455 (Va. Ct. App. Sept. 28, 2004).

    Trial court did not abuse its discretion in denying the husband’s motion for a supersedeas bond; the trial court had the authority to set a bond amount, but was not required to do so, and no error was apparent in the record regarding its decision to deny the husband’s motion in that regard. Holzberlein v. Holzberlein, 2005 Va. App. LEXIS 312 (Va. Ct. App. Aug. 16, 2005).

    Appeal bond may not be less than the amount of judgment. —

    The plain language of the statute providing for a stay of enforcement does not give the trial court discretion to set an appeal bond in an amount less than the judgment. Tauber v. Commonwealth ex rel. Kilgore, 263 Va. 520 , 562 S.E.2d 118, 2002 Va. LEXIS 62, cert. denied, 537 U.S. 1002, 123 S. Ct. 496, 154 L. Ed. 2d 398, 2002 U.S. LEXIS 8117 (2002).

    Where an appeal is “proper to protect the estate of a decedent,” no appeal bond is required. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).

    The estate of a decedent to be protected, within the meaning of this section, is any claim or right which a personal representative as such must protect or defend because this is his bounden duty and because he is appointed for that very purpose. Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930).

    Effect of death pending appeal. —

    After an appeal has been taken by a party himself, in due time so far as the appeal is concerned, and he thereafter dies before the expiration of the statutory period within which an appeal bond would have had to have been given had he lived, leaving the appeal pending and unaffected by the mere fact of his death, the continued pendency of the appeal being in such case unquestionably necessary to protect his estate after his death, the case falls within the first exception of this section. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).

    Executors and administrators may appeal without bond. —

    An executor or administrator who, on his qualification gives bond and security according to law, for the faithful performance of the duties of his office, is allowed to prosecute an appeal without giving an appeal bond, in all cases where the object of the appeal is to assert the rights, or protect the interests of the estate which he represents. Wilson v. Wilson, 11 Va. (1 Hen. & M.) 15, 1806 Va. LEXIS 37 (1806); Linney v. Holliday, 24 Va. (3 Rand.) 1, 1825 Va. LEXIS 3 (1825); M'Cauley v. Griffin, 45 Va. (4 Gratt.) 9, 1846 Va. LEXIS 83 (1846).

    No bond was required by the judge who allowed the writ of error. It was claimed that under this section a bond was imperative. The plaintiff in error was suing as an administrator and this section has long been construed to relieve every administrator from giving such a bond. This exception of administrators applies to actions for wrongful death under § 8.01-50 . Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930).

    Even when no security required of them on qualification. —

    Where an executor or administrator with the will annexed, has been allowed by the direction of the testator, and the order of the court of probate, to qualify without giving security, he ought not to be required to give security for the prosecution of an appeal, where the appeal is for the protection of the estate. M'Cauley v. Griffin, 45 Va. (4 Gratt.) 9, 1846 Va. LEXIS 83 (1846).

    But bond required when judgments against them personally. —

    In an action against an executor, judgment was entered against him personally, instead of de bonis testatoris. Though the judgment was plainly erroneous, an appeal or supersedeas could only be allowed him upon his giving an appeal bond with surety. Pugh v. Jones, 33 Va. (6 Leigh) 299, 1835 Va. LEXIS 33 (1835).

    Where in suit in equity against defendant as executor and in his own right as legatee, a decree is rendered against him personally, on appeal allowed him from the decree, an appeal bond with surety shall be required of him. Erskine v. Henry, 33 Va. (6 Leigh) 378, 1835 Va. LEXIS 37 (1835).

    Bond and security for prosecuting appeals is required where the decree is partly against an executor, as such, and partly against him in his own right. Dunton v. Robins, 16 Va. (2 Munf) 341, 1811 Va. LEXIS 73 (1811).

    Where an executor is sued in chancery, for a subject which is in part personal to himself, and in part touching his executorial character, he ought not to be compelled to give an appeal bond for the latter, as the subject is covered by his official bond. Shearman v. Christian, 22 Va. (1 Rand.) 393, 1823 Va. LEXIS 17 (1823).

    Legatees required to give bond. —

    Where executors and legatees jointly appeal, the legatees, being in possession of the property in dispute, may be ruled to give security for the prosecution of the appeal. Sadler v. Green, 11 Va. (1 Hen. & M.) 26, 1806 Va. LEXIS 44 (1806).

    On an appeal by executors, from a decree in favor of distributees or legatees, for their proportions of the estate, the executors ought to give bond and security. Porter v. Arnold, 24 Va. (3 Rand.) 479, 1825 Va. LEXIS 34 (1825).

    Assignee in bankruptcy not within exception. —

    An assignee in bankruptcy filed a bill in the State court, which was dismissed with costs. The assignee dying, the appellant was appointed his successor and presented a petition for appeal. It was insisted that no bond was required, as the appeal was partly to protect decedent’s estate. It was held that the bond was necessary, the second assignee had nothing, as such, to do with his predecessor’s estate. Pace v. Ficklin, 76 Va. 292 , 1882 Va. LEXIS 32 (1882).

    Appeals by state agencies. —

    Pursuant to § 53.1-8, the Virginia Department of Corrections is an administrative subdivision of the Commonwealth of Virginia; therefore, under § 8.01-676.1 , it was not required to post an appeal bond in its appeal from the reversal of its termination of a corrections officer. Va. Dep't of Corr. v. Compton, 47 Va. App. 202, 623 S.E.2d 397, 2005 Va. App. LEXIS 517 (2005).

    Marking of counsel’s name on docket no waiver. —

    The mere marking of his name by the counsel of the defendant in error on the docket of the court as counsel for defendant in error will not amount to a release of the plaintiff in error from his obligation to give the bond required by law. Otterback v. Alexandria & F.R.R., 67 Va. (26 Gratt.) 940, 1875 Va. LEXIS 66 (1875).

    Objection should be made. —

    A supersedeas is allowed by the appellate court, without requiring a supersedeas bond, when one ought to have been required, and the cause is docketed without objection. This is not good cause to dismiss the supersedeas, on motion made after lapse of six years from the time of awarding it. Pugh v. Jones, 33 Va. (6 Leigh) 299, 1835 Va. LEXIS 33 (1835).

    Delay in moving to dismiss, until after time for giving bond has expired, held not to constitute waiver. —

    The failure to give the required bond was not discovered by appellees until after the expiration of the time for perfecting the appeal. At the next term of the Supreme Court, and before the record was printed, they moved to dismiss the appeal. It was held that appellees had not waived the failure to give the proper bond. Clinch Valley Lumber Corp. v. Hagan Estates, Inc., 167 Va. 1 , 187 S.E. 440 , 1936 Va. LEXIS 266 (1936).

    Where case dealt with request to modify, not execute upon, support order, subsection D of this section was not applicable. Decker v. Decker, 17 Va. App. 562, 440 S.E.2d 411, 10 Va. Law Rep. 812, 1994 Va. App. LEXIS 29 (1994).

    An appeal bond can be taken only after a writ of error has been granted. Branch v. Richmond Cold Storage, 146 Va. 680 , 132 S.E. 848 , 1926 Va. LEXIS 357 (1926), overruled, Hopkins v. Griffin, 241 Va. 307 , 402 S.E.2d 11, 7 Va. Law Rep. 1731, 1991 Va. LEXIS 29 (1991).

    The filing of an appeal bond with the clerk must be in pursuance of an allowance of the appeal, entered on the record. Burch v. White, 24 Va. (3 Rand.) 104, 1824 Va. LEXIS 50 (1724).

    This section is in line with the provision of § 8.01-679 that the time the petition is in the hands of the Supreme Court is not to be taken into account in computing the time after final judgment when the petition must be presented. If the petition is presented within the time prescribed by law, it is then immaterial how long the court holds it. Sutherland v. Swannanoa Corp., 189 Va. 149 , 52 S.E.2d 92, 1949 Va. LEXIS 157 (1949).

    Under this section an attorney could give the bond in his own name for, on behalf of, or in the place and stead of the plaintiffs. Brumley v. Grimstead, 170 Va. 340 , 196 S.E. 668 , 1938 Va. LEXIS 192 (1938).

    A bond executed by a surety only, without any principal obligor, is insufficient, and a supersedeas issued thereon ought to be quashed. Day v. Pickett, 18 Va. (4 Munf) 104, 1813 Va. LEXIS 34 (1813); Miller v. Blannerhassett, 19 Va. (5 Munf) 197, 1816 Va. LEXIS 34 (1816).

    Judge may reduce the penalty of the bond without impairing or annulling the appellant’s right to a supersedeas. Effinger v. Kenney, 65 Va. (24 Gratt.) 116, 1873 Va. LEXIS 7 (1873).

    An appeal bond being a statutory bond, no obligation which is not provided by statute can be written in it. Branch v. Richmond Cold Storage, 146 Va. 680 , 132 S.E. 848 , 1926 Va. LEXIS 357 (1926), overruled, Hopkins v. Griffin, 241 Va. 307 , 402 S.E.2d 11, 7 Va. Law Rep. 1731, 1991 Va. LEXIS 29 (1991).

    A bond accompanied by a certified check is not a substantial compliance with this section. Clinch Valley Lumber Corp. v. Hagan Estates, Inc., 167 Va. 1 , 187 S.E. 440 , 1936 Va. LEXIS 266 (1936).

    Petition for writ of habeas corpus. —

    Because it was clear that the Governor of California made the extradition request for an inmate in Virginia, albeit through a duly authorized agent, the circuit court in Virginia had to give full faith and credit to the manner in which the request was communicated to the Governor of Virginia, and the requesting authorities accurately named and identified the fugitive sought in an indictment. The court ordered the suspension of the execution of its order and ordered the inmate to remain in Virginia pending resolution of an appeal. Soriano v. Commonwealth, 98 Va. Cir. 243, 2018 Va. Cir. LEXIS 41 (Fairfax County Mar. 19, 2018).

    Dismissal required where bond not filed. —

    Failure to file an appeal bond as required by this section requires that an appeal be dismissed and neither Rule 5A:3(b) nor 5A:17(b) can be used to extend the time for filing of bonds when none has been given. Burns v. C.W. Wright Constr. Co., 1 Va. App. 256, 336 S.E.2d 908, 1985 Va. App. LEXIS 95 (1985).

    The failure to file an appeal bond within the 15-day period prescribed by subsection B of this section is not such a defect as may be corrected under Rule 5:24 but is a jurisdictional defect requiring dismissal of an appeal either upon the appellee’s motion or the Court’s own motion. E.B. Rudiger & Sons v. Hanckel-Smith Sales Co., 230 Va. 255 , 335 S.E.2d 257, 1985 Va. LEXIS 275 (1985).

    Due process. —

    Where a father participated in the hearing in which his child support arrearage was initially determined, and unsuccessfully appealed that ruling, as the trial court on remand allowed his counsel to argue about the arrearage, the father’s due process rights were not violated when the trial court ordered the release of most of his appeal bond to the mother, to be applied toward the arrearage, her attorneys’ fee award, and the interest on those amounts. Zedan v. Westheim, 62 Va. App. 39, 741 S.E.2d 792, 2013 Va. App. LEXIS 145 (2013).

    Where wife failed to file the required bond within the 30-day appeal period prescribed by subsection A and Rule 5A:16(a), which period expired long before subsection L ever became effective, that appeal was dead, and any effort to keep it alive by way of a petition for rehearing, or otherwise, was unavailing. Foster v. Foster, 237 Va. 484 , 378 S.E.2d 826, 5 Va. Law Rep. 2200, 1989 Va. LEXIS 84 (1989).

    Bond expressly required. —

    It is expressly provided by this section that, with certain exceptions, an appeal, writ of error, or supersedeas shall not take effect until a sufficient bond with prescribed conditions is given. Morris v. Deshazo, 25 Va. (4 Rand.) 460, 1826 Va. LEXIS 63 (1826); Cardwell v. Allen, 69 Va. (28 Gratt.) 184, 1877 Va. LEXIS 63 (1877); Forrest v. Hawkins, 169 Va. 470 , 194 S.E. 721 , 1938 Va. LEXIS 223 (1938).

    Court’s discretion to set bond amount. —

    Where the wife filed a motion to compel her husband to execute a separation and property settlement agreement as provided in a signed memorandum, the trial court awarded the wife $8,193.54 in attorneys’ fees. The trial court did not abuse its discretion in setting the supersedeas bond at $10,000, which was higher than the amount of the attorneys’ fees award; subsection A of § 8.01-676.1 authorizes the trial court to set an amount, as it requires. O'Connor v. O'Connor, 2003 Va. App. LEXIS 629 (Va. Ct. App. Dec. 9, 2003).

    Trial court did not act improperly in initially setting the husband’s bond at $30,000 and later advising that, because the proposed security for the appeal bond was real property, the property had to have a value of $60,000. Jones v. Jones, 2004 Va. App. LEXIS 455 (Va. Ct. App. Sept. 28, 2004).

    Trial court did not abuse its discretion in denying the husband’s motion for a supersedeas bond; the trial court had the authority to set a bond amount, but was not required to do so, and no error was apparent in the record regarding its decision to deny the husband’s motion in that regard. Holzberlein v. Holzberlein, 2005 Va. App. LEXIS 312 (Va. Ct. App. Aug. 16, 2005).

    Appeal bond may not be less than the amount of judgment. —

    The plain language of the statute providing for a stay of enforcement does not give the trial court discretion to set an appeal bond in an amount less than the judgment. Tauber v. Commonwealth ex rel. Kilgore, 263 Va. 520 , 562 S.E.2d 118, 2002 Va. LEXIS 62, cert. denied, 537 U.S. 1002, 123 S. Ct. 496, 154 L. Ed. 2d 398, 2002 U.S. LEXIS 8117 (2002).

    Where an appeal is “proper to protect the estate of a decedent,” no appeal bond is required. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).

    The estate of a decedent to be protected, within the meaning of this section, is any claim or right which a personal representative as such must protect or defend because this is his bounden duty and because he is appointed for that very purpose. Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930).

    Effect of death pending appeal. —

    After an appeal has been taken by a party himself, in due time so far as the appeal is concerned, and he thereafter dies before the expiration of the statutory period within which an appeal bond would have had to have been given had he lived, leaving the appeal pending and unaffected by the mere fact of his death, the continued pendency of the appeal being in such case unquestionably necessary to protect his estate after his death, the case falls within the first exception of this section. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).

    Executors and administrators may appeal without bond. —

    An executor or administrator who, on his qualification gives bond and security according to law, for the faithful performance of the duties of his office, is allowed to prosecute an appeal without giving an appeal bond, in all cases where the object of the appeal is to assert the rights, or protect the interests of the estate which he represents. Wilson v. Wilson, 11 Va. (1 Hen. & M.) 15, 1806 Va. LEXIS 37 (1806); Linney v. Holliday, 24 Va. (3 Rand.) 1, 1825 Va. LEXIS 3 (1825); M'Cauley v. Griffin, 45 Va. (4 Gratt.) 9, 1846 Va. LEXIS 83 (1846).

    No bond was required by the judge who allowed the writ of error. It was claimed that under this section a bond was imperative. The plaintiff in error was suing as an administrator and this section has long been construed to relieve every administrator from giving such a bond. This exception of administrators applies to actions for wrongful death under § 8.01-50 . Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930).

    Even when no security required of them on qualification. —

    Where an executor or administrator with the will annexed, has been allowed by the direction of the testator, and the order of the court of probate, to qualify without giving security, he ought not to be required to give security for the prosecution of an appeal, where the appeal is for the protection of the estate. M'Cauley v. Griffin, 45 Va. (4 Gratt.) 9, 1846 Va. LEXIS 83 (1846).

    But bond required when judgments against them personally. —

    In an action against an executor, judgment was entered against him personally, instead of de bonis testatoris. Though the judgment was plainly erroneous, an appeal or supersedeas could only be allowed him upon his giving an appeal bond with surety. Pugh v. Jones, 33 Va. (6 Leigh) 299, 1835 Va. LEXIS 33 (1835).

    Where in suit in equity against defendant as executor and in his own right as legatee, a decree is rendered against him personally, on appeal allowed him from the decree, an appeal bond with surety shall be required of him. Erskine v. Henry, 33 Va. (6 Leigh) 378, 1835 Va. LEXIS 37 (1835).

    Bond and security for prosecuting appeals is required where the decree is partly against an executor, as such, and partly against him in his own right. Dunton v. Robins, 16 Va. (2 Munf) 341, 1811 Va. LEXIS 73 (1811).

    Where an executor is sued in chancery, for a subject which is in part personal to himself, and in part touching his executorial character, he ought not to be compelled to give an appeal bond for the latter, as the subject is covered by his official bond. Shearman v. Christian, 22 Va. (1 Rand.) 393, 1823 Va. LEXIS 17 (1823).

    Legatees required to give bond. —

    Where executors and legatees jointly appeal, the legatees, being in possession of the property in dispute, may be ruled to give security for the prosecution of the appeal. Sadler v. Green, 11 Va. (1 Hen. & M.) 26, 1806 Va. LEXIS 44 (1806).

    On an appeal by executors, from a decree in favor of distributees or legatees, for their proportions of the estate, the executors ought to give bond and security. Porter v. Arnold, 24 Va. (3 Rand.) 479, 1825 Va. LEXIS 34 (1825).

    Assignee in bankruptcy not within exception. —

    An assignee in bankruptcy filed a bill in the State court, which was dismissed with costs. The assignee dying, the appellant was appointed his successor and presented a petition for appeal. It was insisted that no bond was required, as the appeal was partly to protect decedent’s estate. It was held that the bond was necessary, the second assignee had nothing, as such, to do with his predecessor’s estate. Pace v. Ficklin, 76 Va. 292 , 1882 Va. LEXIS 32 (1882).

    Appeals by state agencies. —

    Pursuant to § 53.1-8, the Virginia Department of Corrections is an administrative subdivision of the Commonwealth of Virginia; therefore, under § 8.01-676.1 , it was not required to post an appeal bond in its appeal from the reversal of its termination of a corrections officer. Va. Dep't of Corr. v. Compton, 47 Va. App. 202, 623 S.E.2d 397, 2005 Va. App. LEXIS 517 (2005).

    Marking of counsel’s name on docket no waiver. —

    The mere marking of his name by the counsel of the defendant in error on the docket of the court as counsel for defendant in error will not amount to a release of the plaintiff in error from his obligation to give the bond required by law. Otterback v. Alexandria & F.R.R., 67 Va. (26 Gratt.) 940, 1875 Va. LEXIS 66 (1875).

    Objection should be made. —

    A supersedeas is allowed by the appellate court, without requiring a supersedeas bond, when one ought to have been required, and the cause is docketed without objection. This is not good cause to dismiss the supersedeas, on motion made after lapse of six years from the time of awarding it. Pugh v. Jones, 33 Va. (6 Leigh) 299, 1835 Va. LEXIS 33 (1835).

    Delay in moving to dismiss, until after time for giving bond has expired, held not to constitute waiver. —

    The failure to give the required bond was not discovered by appellees until after the expiration of the time for perfecting the appeal. At the next term of the Supreme Court, and before the record was printed, they moved to dismiss the appeal. It was held that appellees had not waived the failure to give the proper bond. Clinch Valley Lumber Corp. v. Hagan Estates, Inc., 167 Va. 1 , 187 S.E. 440 , 1936 Va. LEXIS 266 (1936).

    Where case dealt with request to modify, not execute upon, support order, subsection D of this section was not applicable. Decker v. Decker, 17 Va. App. 562, 440 S.E.2d 411, 10 Va. Law Rep. 812, 1994 Va. App. LEXIS 29 (1994).

    An appeal bond can be taken only after a writ of error has been granted. Branch v. Richmond Cold Storage, 146 Va. 680 , 132 S.E. 848 , 1926 Va. LEXIS 357 (1926), overruled, Hopkins v. Griffin, 241 Va. 307 , 402 S.E.2d 11, 7 Va. Law Rep. 1731, 1991 Va. LEXIS 29 (1991).

    The filing of an appeal bond with the clerk must be in pursuance of an allowance of the appeal, entered on the record. Burch v. White, 24 Va. (3 Rand.) 104, 1824 Va. LEXIS 50 (1724).

    This section is in line with the provision of § 8.01-679 that the time the petition is in the hands of the Supreme Court is not to be taken into account in computing the time after final judgment when the petition must be presented. If the petition is presented within the time prescribed by law, it is then immaterial how long the court holds it. Sutherland v. Swannanoa Corp., 189 Va. 149 , 52 S.E.2d 92, 1949 Va. LEXIS 157 (1949).

    Under this section an attorney could give the bond in his own name for, on behalf of, or in the place and stead of the plaintiffs. Brumley v. Grimstead, 170 Va. 340 , 196 S.E. 668 , 1938 Va. LEXIS 192 (1938).

    A bond executed by a surety only, without any principal obligor, is insufficient, and a supersedeas issued thereon ought to be quashed. Day v. Pickett, 18 Va. (4 Munf) 104, 1813 Va. LEXIS 34 (1813); Miller v. Blannerhassett, 19 Va. (5 Munf) 197, 1816 Va. LEXIS 34 (1816).

    Judge may reduce the penalty of the bond without impairing or annulling the appellant’s right to a supersedeas. Effinger v. Kenney, 65 Va. (24 Gratt.) 116, 1873 Va. LEXIS 7 (1873).

    An appeal bond being a statutory bond, no obligation which is not provided by statute can be written in it. Branch v. Richmond Cold Storage, 146 Va. 680 , 132 S.E. 848 , 1926 Va. LEXIS 357 (1926), overruled, Hopkins v. Griffin, 241 Va. 307 , 402 S.E.2d 11, 7 Va. Law Rep. 1731, 1991 Va. LEXIS 29 (1991).

    A bond accompanied by a certified check is not a substantial compliance with this section. Clinch Valley Lumber Corp. v. Hagan Estates, Inc., 167 Va. 1 , 187 S.E. 440 , 1936 Va. LEXIS 266 (1936).

    Petition for writ of habeas corpus. —

    Because it was clear that the Governor of California made the extradition request for an inmate in Virginia, albeit through a duly authorized agent, the circuit court in Virginia had to give full faith and credit to the manner in which the request was communicated to the Governor of Virginia, and the requesting authorities accurately named and identified the fugitive sought in an indictment. The court ordered the suspension of the execution of its order and ordered the inmate to remain in Virginia pending resolution of an appeal. Soriano v. Commonwealth, 98 Va. Cir. 243, 2018 Va. Cir. LEXIS 41 (Fairfax County Mar. 19, 2018).

    What obligations valid. —

    A suspension bond under this section being a statutory bond, no obligation which is not provided by the statute can be written in it. Branch v. Richmond Cold Storage, 146 Va. 680 , 132 S.E. 848 , 1926 Va. LEXIS 357 (1926), overruled, Hopkins v. Griffin, 241 Va. 307 , 402 S.E.2d 11, 7 Va. Law Rep. 1731, 1991 Va. LEXIS 29 (1991).

    A supersedeas bond made payable to the Commonwealth is sufficient. Acker v. Alexandria & F.R.R., 84 Va. 648 , 5 S.E. 688 , 1888 Va. LEXIS 123 (1888).

    Bond expressly required. —

    It is expressly provided by this section that, with certain exceptions, an appeal, writ of error, or supersedeas shall not take effect until a sufficient bond with prescribed conditions is given. Morris v. Deshazo, 25 Va. (4 Rand.) 460, 1826 Va. LEXIS 63 (1826); Cardwell v. Allen, 69 Va. (28 Gratt.) 184, 1877 Va. LEXIS 63 (1877); Forrest v. Hawkins, 169 Va. 470 , 194 S.E. 721 , 1938 Va. LEXIS 223 (1938).

    Court’s discretion to set bond amount. —

    Where the wife filed a motion to compel her husband to execute a separation and property settlement agreement as provided in a signed memorandum, the trial court awarded the wife $8,193.54 in attorneys’ fees. The trial court did not abuse its discretion in setting the supersedeas bond at $10,000, which was higher than the amount of the attorneys’ fees award; subsection A of § 8.01-676.1 authorizes the trial court to set an amount, as it requires. O'Connor v. O'Connor, 2003 Va. App. LEXIS 629 (Va. Ct. App. Dec. 9, 2003).

    Trial court did not act improperly in initially setting the husband’s bond at $30,000 and later advising that, because the proposed security for the appeal bond was real property, the property had to have a value of $60,000. Jones v. Jones, 2004 Va. App. LEXIS 455 (Va. Ct. App. Sept. 28, 2004).

    Trial court did not abuse its discretion in denying the husband’s motion for a supersedeas bond; the trial court had the authority to set a bond amount, but was not required to do so, and no error was apparent in the record regarding its decision to deny the husband’s motion in that regard. Holzberlein v. Holzberlein, 2005 Va. App. LEXIS 312 (Va. Ct. App. Aug. 16, 2005).

    Appeal bond may not be less than the amount of judgment. —

    The plain language of the statute providing for a stay of enforcement does not give the trial court discretion to set an appeal bond in an amount less than the judgment. Tauber v. Commonwealth ex rel. Kilgore, 263 Va. 520 , 562 S.E.2d 118, 2002 Va. LEXIS 62, cert. denied, 537 U.S. 1002, 123 S. Ct. 496, 154 L. Ed. 2d 398, 2002 U.S. LEXIS 8117 (2002).

    Where an appeal is “proper to protect the estate of a decedent,” no appeal bond is required. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).

    The estate of a decedent to be protected, within the meaning of this section, is any claim or right which a personal representative as such must protect or defend because this is his bounden duty and because he is appointed for that very purpose. Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930).

    Effect of death pending appeal. —

    After an appeal has been taken by a party himself, in due time so far as the appeal is concerned, and he thereafter dies before the expiration of the statutory period within which an appeal bond would have had to have been given had he lived, leaving the appeal pending and unaffected by the mere fact of his death, the continued pendency of the appeal being in such case unquestionably necessary to protect his estate after his death, the case falls within the first exception of this section. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 , 1920 Va. LEXIS 93 (1920).

    Executors and administrators may appeal without bond. —

    An executor or administrator who, on his qualification gives bond and security according to law, for the faithful performance of the duties of his office, is allowed to prosecute an appeal without giving an appeal bond, in all cases where the object of the appeal is to assert the rights, or protect the interests of the estate which he represents. Wilson v. Wilson, 11 Va. (1 Hen. & M.) 15, 1806 Va. LEXIS 37 (1806); Linney v. Holliday, 24 Va. (3 Rand.) 1, 1825 Va. LEXIS 3 (1825); M'Cauley v. Griffin, 45 Va. (4 Gratt.) 9, 1846 Va. LEXIS 83 (1846).

    No bond was required by the judge who allowed the writ of error. It was claimed that under this section a bond was imperative. The plaintiff in error was suing as an administrator and this section has long been construed to relieve every administrator from giving such a bond. This exception of administrators applies to actions for wrongful death under § 8.01-50 . Richardson v. Shank, 155 Va. 240 , 154 S.E. 542 , 1930 Va. LEXIS 161 (1930).

    Even when no security required of them on qualification. —

    Where an executor or administrator with the will annexed, has been allowed by the direction of the testator, and the order of the court of probate, to qualify without giving security, he ought not to be required to give security for the prosecution of an appeal, where the appeal is for the protection of the estate. M'Cauley v. Griffin, 45 Va. (4 Gratt.) 9, 1846 Va. LEXIS 83 (1846).

    But bond required when judgments against them personally. —

    In an action against an executor, judgment was entered against him personally, instead of de bonis testatoris. Though the judgment was plainly erroneous, an appeal or supersedeas could only be allowed him upon his giving an appeal bond with surety. Pugh v. Jones, 33 Va. (6 Leigh) 299, 1835 Va. LEXIS 33 (1835).

    Where in suit in equity against defendant as executor and in his own right as legatee, a decree is rendered against him personally, on appeal allowed him from the decree, an appeal bond with surety shall be required of him. Erskine v. Henry, 33 Va. (6 Leigh) 378, 1835 Va. LEXIS 37 (1835).

    Bond and security for prosecuting appeals is required where the decree is partly against an executor, as such, and partly against him in his own right. Dunton v. Robins, 16 Va. (2 Munf) 341, 1811 Va. LEXIS 73 (1811).

    Where an executor is sued in chancery, for a subject which is in part personal to himself, and in part touching his executorial character, he ought not to be compelled to give an appeal bond for the latter, as the subject is covered by his official bond. Shearman v. Christian, 22 Va. (1 Rand.) 393, 1823 Va. LEXIS 17 (1823).

    Legatees required to give bond. —

    Where executors and legatees jointly appeal, the legatees, being in possession of the property in dispute, may be ruled to give security for the prosecution of the appeal. Sadler v. Green, 11 Va. (1 Hen. & M.) 26, 1806 Va. LEXIS 44 (1806).

    On an appeal by executors, from a decree in favor of distributees or legatees, for their proportions of the estate, the executors ought to give bond and security. Porter v. Arnold, 24 Va. (3 Rand.) 479, 1825 Va. LEXIS 34 (1825).

    Assignee in bankruptcy not within exception. —

    An assignee in bankruptcy filed a bill in the State court, which was dismissed with costs. The assignee dying, the appellant was appointed his successor and presented a petition for appeal. It was insisted that no bond was required, as the appeal was partly to protect decedent’s estate. It was held that the bond was necessary, the second assignee had nothing, as such, to do with his predecessor’s estate. Pace v. Ficklin, 76 Va. 292 , 1882 Va. LEXIS 32 (1882).

    Appeals by state agencies. —

    Pursuant to § 53.1-8, the Virginia Department of Corrections is an administrative subdivision of the Commonwealth of Virginia; therefore, under § 8.01-676.1 , it was not required to post an appeal bond in its appeal from the reversal of its termination of a corrections officer. Va. Dep't of Corr. v. Compton, 47 Va. App. 202, 623 S.E.2d 397, 2005 Va. App. LEXIS 517 (2005).

    Marking of counsel’s name on docket no waiver. —

    The mere marking of his name by the counsel of the defendant in error on the docket of the court as counsel for defendant in error will not amount to a release of the plaintiff in error from his obligation to give the bond required by law. Otterback v. Alexandria & F.R.R., 67 Va. (26 Gratt.) 940, 1875 Va. LEXIS 66 (1875).

    Objection should be made. —

    A supersedeas is allowed by the appellate court, without requiring a supersedeas bond, when one ought to have been required, and the cause is docketed without objection. This is not good cause to dismiss the supersedeas, on motion made after lapse of six years from the time of awarding it. Pugh v. Jones, 33 Va. (6 Leigh) 299, 1835 Va. LEXIS 33 (1835).

    Delay in moving to dismiss, until after time for giving bond has expired, held not to constitute waiver. —

    The failure to give the required bond was not discovered by appellees until after the expiration of the time for perfecting the appeal. At the next term of the Supreme Court, and before the record was printed, they moved to dismiss the appeal. It was held that appellees had not waived the failure to give the proper bond. Clinch Valley Lumber Corp. v. Hagan Estates, Inc., 167 Va. 1 , 187 S.E. 440 , 1936 Va. LEXIS 266 (1936).

    Where case dealt with request to modify, not execute upon, support order, subsection D of this section was not applicable. Decker v. Decker, 17 Va. App. 562, 440 S.E.2d 411, 10 Va. Law Rep. 812, 1994 Va. App. LEXIS 29 (1994).

    An appeal bond can be taken only after a writ of error has been granted. Branch v. Richmond Cold Storage, 146 Va. 680 , 132 S.E. 848 , 1926 Va. LEXIS 357 (1926), overruled, Hopkins v. Griffin, 241 Va. 307 , 402 S.E.2d 11, 7 Va. Law Rep. 1731, 1991 Va. LEXIS 29 (1991).

    The filing of an appeal bond with the clerk must be in pursuance of an allowance of the appeal, entered on the record. Burch v. White, 24 Va. (3 Rand.) 104, 1824 Va. LEXIS 50 (1724).

    This section is in line with the provision of § 8.01-679 that the time the petition is in the hands of the Supreme Court is not to be taken into account in computing the time after final judgment when the petition must be presented. If the petition is presented within the time prescribed by law, it is then immaterial how long the court holds it. Sutherland v. Swannanoa Corp., 189 Va. 149 , 52 S.E.2d 92, 1949 Va. LEXIS 157 (1949).

    Under this section an attorney could give the bond in his own name for, on behalf of, or in the place and stead of the plaintiffs. Brumley v. Grimstead, 170 Va. 340 , 196 S.E. 668 , 1938 Va. LEXIS 192 (1938).

    A bond executed by a surety only, without any principal obligor, is insufficient, and a supersedeas issued thereon ought to be quashed. Day v. Pickett, 18 Va. (4 Munf) 104, 1813 Va. LEXIS 34 (1813); Miller v. Blannerhassett, 19 Va. (5 Munf) 197, 1816 Va. LEXIS 34 (1816).

    Judge may reduce the penalty of the bond without impairing or annulling the appellant’s right to a supersedeas. Effinger v. Kenney, 65 Va. (24 Gratt.) 116, 1873 Va. LEXIS 7 (1873).

    An appeal bond being a statutory bond, no obligation which is not provided by statute can be written in it. Branch v. Richmond Cold Storage, 146 Va. 680 , 132 S.E. 848 , 1926 Va. LEXIS 357 (1926), overruled, Hopkins v. Griffin, 241 Va. 307 , 402 S.E.2d 11, 7 Va. Law Rep. 1731, 1991 Va. LEXIS 29 (1991).

    A bond accompanied by a certified check is not a substantial compliance with this section. Clinch Valley Lumber Corp. v. Hagan Estates, Inc., 167 Va. 1 , 187 S.E. 440 , 1936 Va. LEXIS 266 (1936).

    Petition for writ of habeas corpus. —

    Because it was clear that the Governor of California made the extradition request for an inmate in Virginia, albeit through a duly authorized agent, the circuit court in Virginia had to give full faith and credit to the manner in which the request was communicated to the Governor of Virginia, and the requesting authorities accurately named and identified the fugitive sought in an indictment. The court ordered the suspension of the execution of its order and ordered the inmate to remain in Virginia pending resolution of an appeal. Soriano v. Commonwealth, 98 Va. Cir. 243, 2018 Va. Cir. LEXIS 41 (Fairfax County Mar. 19, 2018).

    III.Nature and Effect of Bond.

    Purpose of bond. —

    A supersedeas bond is one of indemnity, the object of which is to secure to a successful litigant the ultimate fruits of his recovery, in whole or in part, and to insure him against loss from the possible insolvency of his debtor, or from other cause, pending appeal. National Sur. Co. v. Commonwealth, 125 Va. 223 , 99 S.E. 657 , 1919 Va. LEXIS 18, cert. denied, 250 U.S. 665, 40 S. Ct. 13, 63 L. Ed. 1197, 1919 U.S. LEXIS 1904 (1919).

    Giving of bond does not release attachment. —

    Upon a decree in favor of an attaching creditor, and an appeal therefrom, the appellant gives an appeal bond. The giving of this bond does not release the attachment. Magill v. Sauer, 61 Va. (20 Gratt.) 540, 1871 Va. LEXIS 19 (1871).

    Effect of suspension. —

    The provision in this section authorizing the court, or judge, to enter an order suspending the execution of a judgment, at any time within 30 days after the end of the term at which the judgment was rendered, has the effect of extending the power of the court over the judgment for that purpose for that length of time, and of giving to an order of suspension, entered within 30 days after the end of the term, the same force and effect as if it had been entered during the term. Aetna Cas. & Sur. Co. v. Board of Supvrs., 160 Va. 11 , 168 S.E. 617 , 1933 Va. LEXIS 188 (1933).

    Suspension does not affect finality of judgment. —

    The fact that the execution of a judgment was suspended under the provisions of this section, did not affect the finality of the judgment in the lower court. Harley v. Commonwealth, 131 Va. 664 , 108 S.E. 648 , 1921 Va. LEXIS 55 (1921); Bridges v. Commonwealth, 190 Va. 691 , 58 S.E.2d 8, 1950 Va. LEXIS 160 (1950) (see Hirschkop v. Commonwealth, 209 Va. 678 , 166 S.E.2d 322, cert. denied, 396 U.S. 845, 90 S. Ct. 72, 24 L. Ed. 2d 94 (1969)).

    Self-executing judgment may be stayed or suspended. —

    Under this section the trial court in a civil proceeding is empowered to suspend or refuse to suspend the execution of judgment, decree or order to permit an appeal therefrom as it may deem proper. The execution of a self-executing judgment, decree, or order, as well as one which is not self-executing, may be stayed or suspended by the court rendering it. The power to suspend execution of its judgments, decrees and orders is not limited under this section to staying further proceedings for the enforcement thereof, but extends to the suspension of the execution of the judgment, decree, or order however it may be executed, including its execution ex proprio vigore. Aetna Cas. & Sur. Co. v. Board of Supvrs., 160 Va. 11 , 168 S.E. 617 , 1933 Va. LEXIS 188 (1933) (see Sutherland v. Swannanoa Corp., 189 Va. 149 , 52 S.E.2d 92 (1949)).

    Suspension of spousal support pending appeal. —

    A trial court may, but is not required to, refuse to suspend an award of spousal support pending appeal. Margoupis v. Margoupis, 1999 Va. App. LEXIS 113 (Va. Ct. App. Feb. 23, 1999).

    IV.Effect of Failure to Give Bond.

    Dismissal of appeal. —

    If an appeal bond is not given within the statutory period, the appeal must be dismissed. Pace v. Ficklin, 76 Va. 292 , 1882 Va. LEXIS 32 (1882); Clinch Valley Lumber Corp. v. Hagan Estates, Inc., 167 Va. 1 , 187 S.E. 440 , 1936 Va. LEXIS 266 (1936); Forrest v. Hawkins, 169 Va. 470 , 194 S.E. 721 , 1938 Va. LEXIS 223 (1938).

    Stay of proceedings below. —

    Until the appeal bond is given, the appellee may proceed to enforce the judgment or decree of the court below. Williamson v. Gayle, 45 Va. (4 Gratt.) 180, 1847 Va. LEXIS 43 (1847).

    Does not of itself avoid appeal. —

    The appeals being allowed, the cause is pending in the Supreme Court. The failure of the appellant to execute the bond directed by the court to be given, on granting the appeal, does not avoid the appeal, but the appeal must be disposed of according to statute. Williamson v. Gayle, 45 Va. (4 Gratt.) 180, 1847 Va. LEXIS 43 (1847).

    Appellant may be compelled to give bond. —

    If the appellant fails to give the bond directed to be given by the court, or the judge allowing the appeal or supersedeas, the appellee may have a rule upon him to compel him to give it. Williamson v. Gayle, 45 Va. (4 Gratt.) 180, 1847 Va. LEXIS 43 (1847).

    V.Execution of Bond.

    Bond is to be given before clerk of court in which case was tried. —

    It is not within the intendment of this section that the bond be given in a court or before the clerk of a court different from the court in which the case was tried. Smith v. Jewell Ridge Coal Corp., 203 Va. 499 , 125 S.E.2d 175, 1962 Va. LEXIS 174 (1962).

    A supersedeas bond may be given before writ of error is issued or even awarded. —

    This section provides that a judgment debtor may, in lieu of a suspending bond, file in the clerk’s office below a supersedeas bond, thereby expressly recognizing that a supersedeas bond may be given before the writ of error is issued or even awarded. Hackley v. Robey, 170 Va. 55 , 195 S.E. 689 , 1938 Va. LEXIS 162 (1938).

    Sufficient execution. —

    A bond executed by defendant corporation by its attorney and not under its corporate seal, and by defendant’s attorney in his individual capacity and with his seal, as joint principals, and by a bonding company as surety, satisfied the requirements of this section. State Farm Mut. Auto. Ins. Co. v. Cook, 186 Va. 658 , 43 S.E.2d 863, 1947 Va. LEXIS 188 (1947).

    Under this section a bond was not defective because, while it purported to be a joint and several bond and was properly signed and sealed by one of the defendants, and was signed by the other defendant, a corporation, the seal of the corporation was not affixed thereto, since the bond showed on its face that it was executed for the benefit of both petitioners. Brickell v. Shawn, 175 Va. 373 , 9 S.E.2d 330, 1940 Va. LEXIS 180 (1940).

    Execution on appeal bond. —

    Subsection C of § 8.01-676.1 and § 8.01-685 allow execution on an appeal bond for the amount of a judgment, including the interest, cost, and damages awarded by the appellate court, and do not require any proof that — but for the bond — the party could have collected the judgment. Zedan v. Westheim, 62 Va. App. 39, 741 S.E.2d 792, 2013 Va. App. LEXIS 145 (2013).

    VI.By Whom Bond Given.

    Who may be principal. —

    The language of this section implies that, except in certain instances, before an appeal or writ of error or supersedeas shall become effective, there must be given or filed in the clerk’s office a “bond”; that is a sealed instrument, not merely a written instrument, which must be signed by (1) a principal, who may be either the “appellants or petitioners, or one or more of them, or some other person,” and (2) an approved surety. Forrest v. Hawkins, 169 Va. 470 , 194 S.E. 721 , 1938 Va. LEXIS 223 (1938).

    But must be authorized by sealed power of attorney to execute for appellant as principal. —

    See Ness v. Manuel, 187 Va. 209 , 46 S.E.2d 331, 1948 Va. LEXIS 213 (1948).

    VII.Penalty of Bond.

    Sufficiency. —

    The penalty of the appeal and supersedeas bond should be sufficient to indemnify and save harmless the surety in the injunction bond. Braxton v. Morris, 1 Va. (1 Wash.) 380, 1 Wash. 380, 1794 Va. LEXIS 45 (1794); Cardwell v. Allen, 69 Va. (28 Gratt.) 184, 1877 Va. LEXIS 63 (1877) (see also Smock v. Dade, 26 Va. (5 Rand.) 639 (1826)).

    VIII.Conditions of Bond.

    Statutory conditions may be read into supersedeas bonds. —

    The conditions which this section prescribes for a supersedeas bond is to be read into every statutory supersedeas bond which has been taken since its enactment. Thus, where the bond omits to specify and provide for “all actual damages incurred in consequence of the supersedeas,” the court will read the statutory condition into the bond. Northern Neck Mut. Fire Ass'n v. Turlington, 136 Va. 44 , 116 S.E. 363 , 1923 Va. LEXIS 67 (1923).

    How condition construed. —

    The condition of the bond, as prescribed by the judge awarding the supersedeas, was to pay all “costs and damages according to law, and also any deficiency in the funds arising from the land sales decreed in meeting and discharging the sums decreed against the parties, respectively, in case the decree complained of be affirmed, or the appeal or supersedeas dismissed.” The condition inserted in the bond by the clerk, was to “pay the judgment,” in addition to that prescribed by the judge. On a suit on the appeal bond, it was held that the stipulations in the bond to “pay the judgment,” and “also the deficiency” on the resale of the lands, should be regarded as alternative provisions, intended to accomplish but one and the same object, namely, the satisfaction of the decree and the payment of costs and damages according to law. Harnsberger v. Yancey, 74 Va. (33 Gratt.) 527, 1880 Va. LEXIS 60 (1880).

    Condition construed to include loss due to depreciation of state bonds. —

    The language of this section, declaring the condition of every supersedeas bond, is to be read into every statutory supersedeas bond taken, since its enactment, whether inserted in the bond or not. It is broad enough to cover the depreciation in the value of the state bonds between the date when they were directed to be delivered by the decree appealed from and the date of their actual delivery, upon the affirmance of said decree by the appellate court. Bemiss v. Commonwealth, 113 Va. 489 , 75 S.E. 115 , 1912 Va. LEXIS 61 (1912).

    Meaning of words “awarded” and “incurred.” —

    The word “awarded,” in this section, refers to the words “damages and costs”; and the word “incurred” to the word “fees” therein, so as to make the meaning the same as if the sentence had been written: “and also to pay all damages and costs which may be awarded against, and all fees which may be incurred by the appellants or petitioners.” Cardwell v. Allen, 69 Va. (28 Gratt.) 184, 1877 Va. LEXIS 63 (1877).

    Appeal from order dissolving injunction. —

    On the dissolution of an injunction against a judgment, and an appeal taken, the appellant was not bound to give security for the amount of the judgment, but only for costs which might be awarded against him. Eppes v. Thurman, 25 Va. (4 Rand.) 384, 1826 Va. LEXIS 49 (1826).

    A party appealing from an order dissolving an injunction can only be required to give security to perform the decree of the inferior court, and to pay the costs and damages awarded in the appellate court, if the decree shall be affirmed. M'Kay v. Hite, 25 Va. (4 Rand.) 564, 1826 Va. LEXIS 77 (1826).

    IX.Sureties.

    Approved surety required. —

    Bonds given on appeal to the Supreme Court must be with approved surety. Brooks v. Epperson, 164 Va. 37 , 178 S.E. 787 , 1935 Va. LEXIS 173 (1935); Clinch Valley Lumber Corp. v. Hagan Estates, Inc., 167 Va. 1 , 187 S.E. 440 , 1936 Va. LEXIS 266 (1936).

    Same surety to appeal and injunction bond not objectionable. —

    It is not a valid objection to a surety to an appeal bond, that he was surety to the injunction bond also. Johnson v. Syme, 7 Va. (3 Call) 523, 1790 Va. LEXIS 30 (1790).

    Clerk liable on official bond for injury. —

    A party injured by the insufficiency of an appeal bond has his remedy by action on the official bond of the clerk of the court. Chase v. Miller, 88 Va. 791 , 14 S.E. 545 , 1892 Va. LEXIS 33 (1892).

    X.Defective Bond.

    Effect of penalties in excess of authority. —

    Penalties in a suspension bond under this section, in excess of the authority of the court to exact, such as a promise to pay or satisfy the judgment in case the judgment shall be affirmed, will be treated as surplusage. The bond with such penalties eliminated will be enforced as a suspending bond. Branch v. Richmond Cold Storage, 146 Va. 680 , 132 S.E. 848 , 1926 Va. LEXIS 357 (1926), overruled, Hopkins v. Griffin, 241 Va. 307 , 402 S.E.2d 11, 7 Va. Law Rep. 1731, 1991 Va. LEXIS 29 (1991).

    Bond signed by attorney without authority does not satisfy section. —

    An instrument, purporting on its face to be the bond of plaintiff, was filed, but it was signed and sealed, not by plaintiff, but in his name by his attorney. It was argued that if the attorney acted without authority, then he was personally bound to the obligee in the bond, and that this satisfied the requirement of this section. It was held that the mere fact that the attorney might be liable in damages to the obligee in the instrument did not convert it into a bond and satisfy the statute. Forrest v. Hawkins, 169 Va. 470 , 194 S.E. 721 , 1938 Va. LEXIS 223 (1938); Ness v. Manuel, 187 Va. 209 , 46 S.E.2d 331, 1948 Va. LEXIS 213 (1948).

    But invalid supersedeas bond may support appeal. —

    Where a supersedeas bond failed to conform to the statute in that it failed to specify and provide for “all actual damages incurred in consequence of the supersedeas,” in case of affirmance, even if the bond ought to be held invalid as a supersedeas bond, it is sufficient to support a writ of error and to sustain the jurisdiction of the Supreme Court. Northern Neck Mut. Fire Ass'n v. Turlington, 136 Va. 44 , 116 S.E. 363 , 1923 Va. LEXIS 67 (1923).

    Instead of dismissing appeal court could modify order. —

    On motion to dismiss an appeal for failure to give a proper bond as required by this section, the court could, instead of dismissing the appeal, on motion of the appellants, make an order modifying its order allowing the appeal and supersedeas so as to allow an appeal only, not to operate as a supersedeas to, or in any manner hinder or delay the execution of the decree appealed from. Reid Bros. & Co. v. Norfolk City R.R., 94 Va. 117 , 26 S.E. 428 , 1896 Va. LEXIS 149 (1896).

    Second invalid supersedeas bond did not affect first bond. —

    Under this section, the appellant was not required to give a second supersedeas bond, and the second supersedeas bond, which did not comply with the statute, did not affect or supersede the former bond which fully complied with the statute. Harrington v. Sencindiver, 173 Va. 33 , 3 S.E.2d 381, 1939 Va. LEXIS 174 (1939).

    Misrecital does not invalidate. —

    Bonds reciting the judgment as that of “the circuit court of Alexandria,” omitting the words “the city of,” are not vitiated by such omission. Acker v. Alexandria & F.R.R., 84 Va. 648 , 5 S.E. 688 , 1888 Va. LEXIS 123 (1888).

    Nor will error of clerk. —

    Where a supersedeas bond clearly failed to conform to the statute, but there was no doubt that the obligors thereto intended to execute a bond in strict conformity therewith, and the mistake was a mere misprision of the clerk, a motion to dismiss the writ of error therefor will be overruled. Northern Neck Mut. Fire Ass'n v. Turlington, 136 Va. 44 , 116 S.E. 363 , 1923 Va. LEXIS 67 (1923).

    Failure of bond to waive homestead may render it insufficient, but it is not void. —

    A bond not containing the waiver of homestead exemption required by § 49-12 may be insufficient, and may be made sufficient at any time on the motion of the defendant in error, but it is not a void bond. Acker v. Alexandria & F.R.R., 84 Va. 648 , 5 S.E. 688 , 1888 Va. LEXIS 123 (1888).

    When objection to defective bond deemed waived. —

    Where the condition of a supersedeas bond does not conform to this section, good faith requires that the defendant in error or appellee should make a motion for the dismissal of the writ of error or appeal before the expiration of the time within which a new bond can be given, so that it can be amended or corrected, and the failure to do so will be deemed a waiver of the objection to the supersedeas bond. Northern Neck Mut. Fire Ass'n v. Turlington, 136 Va. 44 , 116 S.E. 363 , 1923 Va. LEXIS 67 (1923).

    Where a party has a reasonable time to object to an appeal bond as defective, but fails to do so until it is too late for the other party to give a new bond or have another appeal allowed, the appeal will not be dismissed. Johnson v. Syme, 7 Va. (3 Call) 523, 1790 Va. LEXIS 30 (1790); Virginia Fire & Marine Ins. Co. v. New York Carousal Mfg. Co., 95 Va. 515 , 28 S.E. 888 , 1898 Va. LEXIS 9 (1898) (see also Jackson v. Henderson, 30 Va. (3 Leigh) 196 (1831); Pugh v. Jones, 33 Va. (6 Leigh) 299 (1835); Harris v. Harrington, 180 Va. 210 , 22 S.E.2d 13 (1942); Ness v. Manuel, 187 Va. 209 , 46 S.E.2d 331 (1948)).

    Appellee should move to dismiss as soon as defect discovered. —

    When a case was called for argument in the Supreme Court, defendants in error moved to dismiss the writ of error upon the ground that the condition of the supersedeas bond did not conform to the statute. The bond was not executed until October 20, 1921, and the year within which it could have been given expired on the next day, October 21. It was held that while this would have doubtless excused the failure to make the motion to dismiss the writ of error within the year upon the ground that the condition of the supersedeas bond did not conform to the statute, it did not relieve defendant in error from the obligation to make it promptly just as soon as the error was discovered, so that it could be cured by the tender of a better bond, before the case was called in the Supreme Court. Northern Neck Mut. Fire Ass'n v. Turlington, 136 Va. 44 , 116 S.E. 363 , 1923 Va. LEXIS 67 (1923).

    XI.Action on Bond.

    No consideration of errors in original suit. —

    In actions on appeal bonds, the Supreme Court will not consider either judicial errors, or clerical misprisions, in the court below, occurring in the original suit, and in which there has been an acquiescence by the parties not appealing to correct them. Miller v. M'Luer, 21 Va. (Gilmer) 338, 1820 Va. LEXIS 29 (1820).

    Appellee can recover depreciation on bonds sued for. —

    In an action on a supersedeas bond to recover damages by reason of the suspension of a decree, subsequently affirmed, for the delivery of State bonds in kind, the plaintiff is entitled to recover the depreciation in the market value of the bonds between the date of suspension and the date of delivery, together with the difference between the interest (less taxes) he could have made on the money and that actually received on bonds. The fact that he received the bonds in kind makes no difference, as he had to take them in a depreciated condition. Bemiss v. Commonwealth, 113 Va. 489 , 75 S.E. 115 , 1912 Va. LEXIS 61 (1912).

    Action on suspending bond under this section. —

    For a case involving various questions of pleading, practice, and evidence in such a case, see Budowitz v. Commonwealth, 136 Va. 227 , 118 S.E. 238 , 1923 Va. LEXIS 81 (1923).

    What plaintiff has to prove. —

    In an action on a suspending bond given under this section, the burden is on the plaintiff to prove, by a preponderance of the evidence, that but for the bond he could have collected his judgment. Jacob v. Commonwealth, 148 Va. 236 , 138 S.E. 574 , 1927 Va. LEXIS 225 (1927).

    Release of bond to appellee. —

    Trial court did not err under subsection C of § 8.01-676.1 when it ordered most of a father’s appeal bond released to the mother, as the purpose of the bond was to secure payment of the child support arrearage owed by the father to the mother and all damages she incurred as a result of the suspension of execution of the trial court’s decree. Zedan v. Westheim, 62 Va. App. 39, 741 S.E.2d 792, 2013 Va. App. LEXIS 145 (2013).

    Petition for writ of habeas corpus. —

    Because it was clear that the Governor of California made the extradition request for an inmate in Virginia, albeit through a duly authorized agent, the circuit court in Virginia had to give full faith and credit to the manner in which the request was communicated to the Governor of Virginia, and the requesting authorities accurately named and identified the fugitive sought in an indictment. The court ordered the suspension of the execution of its order and ordered the inmate to remain in Virginia pending resolution of an appeal. Soriano v. Commonwealth, 98 Va. Cir. 243, 2018 Va. Cir. LEXIS 41 (Fairfax County Mar. 19, 2018).

    CIRCUIT COURT OPINIONS

    Reduction or release of suspending bond. —

    In relation to an action involving mechanic’s liens, respondent’s motion in a circuit court for a reduction or release of a suspending bond relating to its appeal was denied as the state supreme court had jurisdiction and, even if it did not, respondent had previously requested the circuit court to fix the amount of the suspending bond, which it did. Magazzine Clean, L.L.C. v. Britt Constr., Inc., 69 Va. Cir. 365, 2005 Va. Cir. LEXIS 328 (Loudoun County Dec. 8, 2005).

    Final order could be the subject of a rule to show cause. —

    Final order requiring a property owner to convey property to a county redevelopment and housing authority could be the subject of a zoning administrator’s rule to show cause, which alleged that the owner violated the order by failing to convey the property, because the owner never filed an appeal bond or irrevocable letter of credit pursuant to subsection C of § 8.01-676.1 ; even if the owner had filed an appeal bond or irrevocable letter of credit, the trial court could have refused to suspend the final order under subsection D of § 8.01-676.1 because the order granted an injunction. Va. Equity Solutions, LLC v. Bd. of Zoning Appeals, 2008 Va. Cir. LEXIS 14 (Fairfax County Feb. 19, 2008).

    Indigency. —

    Circuit court found that defendants were not indigent for purposes of setting an appeal bond because the court found that defendants had significant assets, were voluntarily underemployed, and lacked credibility in important aspects of their testimony as defendants did not provide financial documents, did not account for a settlement of an automobile accident, jewelry left with family members, the value for expensive used cars, and conveyed their expensive home, through limited liability companies created to accept their quitclaim deed. Just Right Homes, L.L.C. v. Smith, 2017 Va. Cir. LEXIS 148 (Chesapeake Aug. 24, 2017).

    Article 2. Errors Insufficient in the Appellate Court.

    § 8.01-677. Errors corrected on motion instead of writ of error coram vobis.

    For any clerical error or error in fact for which a judgment may be reversed or corrected on writ of error coram vobis, the same may be reversed or corrected on motion, after reasonable notice, by the court.

    History. Code 1950, § 8-485; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-486 (Judgment on confession, a release of errors) has been deleted since it has no modern utility.

    Cross references.

    As to correction of certain errors in the trial court, see § 8.01-428 .

    Law Review.

    For annual survey article, “Criminal Law and Procedure,” see 46 U. Rich. L. Rev. 59 (2011).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 8, 252.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Ineffective assistance of counsel does not constitute error in fact. —

    While defendants may have suffered ineffective assistance of counsel and may have been successful had they timely filed petitions for writs of habeas corpus pursuant to § 8.01-654 , neither did so, and ineffective assistance of counsel did not constitute an error of fact for the purposes of coram vobis under § 8.01-677 ; therefore, the errors of fact alleged by defendants did not constitute “errors of fact” for the purposes of coram vobis, as contemplated by § 8.01-677 . The court further held that the writ of audita querela may not be used to seek post-conviction relief from criminal sentences in Virginia; accordingly, the trial courts erred in their reliance upon the writs of error coram vobis and audita querela to modify the criminal sentences imposed in the cases, and the judgments of the trial courts were reversed and the petitions for writs of audita querela and coram vobis were dismissed. Commonwealth v. Morris, 281 Va. 70 , 705 S.E.2d 503, 2011 Va. LEXIS 19, cert. denied, 565 U.S. 825, 132 S. Ct. 115, 181 L. Ed. 2d 39, 2011 U.S. LEXIS 5486 (2011).

    Nunc pro tunc order invalid. —

    Where case had been continued by agreement but no court entry upon the record reflected such a continuance, because trial court never considered a motion for a continuance and never ordered a continuance, there was no defect or omission in the record. Therefore, the trial court lacked authority to issue an order nunc pro tunc reciting that a continuance had been granted when in fact the court had not granted a motion for a continuance on the motion of or with the concurrence of the defendant. The nunc pro tunc order was thus invalid and could not bar appellant’s speedy trial claim. Blevins v. Commonwealth, No. 1264-96-3 (Ct. of Appeals Sept. 30, 1997).

    Coram nobis did not lie to collaterally challenge guilty plea. —

    Circuit court finding that it lacked jurisdiction to hear appellant’s appeal from the denial of a petition for a writ of error coram nobis in a criminal conviction was error because § 16.1-106 was not restricted to only monetary cases; however, coram nobis did not lie as a means by which appellant was allowed to collaterally challenge his guilty plea. Appellant’s allegation that he suffered from some undefined lack of capacity due to medication at the time of his guilty plea was not a clerical error nor a claim of an error in fact. Neighbors v. Commonwealth, 274 Va. 503 , 650 S.E.2d 514, 2007 Va. LEXIS 108 (2007).

    II.Decisions Under Prior Law.

    Editor’s note.

    For a full general discussion of the purpose and use of the writ of coram vobis, see Dobie v. Commonwealth, 198 Va. 762 , 96 S.E.2d 747, 1957 Va. LEXIS 137 (1957).

    This section is in simple, clear and unambiguous language, and the Supreme Court reads it to mean what it says. It does not provide that it may be used to obtain a writ of error, or an appeal, or for any purpose other than to correct a “clerical error or error in fact.” It does not supplant the writ of habeas corpus. If its provisions should be widened, the enlargement should be effected by the legislature. Blowe v. Peyton, 208 Va. 68 , 155 S.E.2d 351, 1967 Va. LEXIS 185 (1967).

    The writ of coram vobis is analogous to a motion for a new trial but on a ground not known in the original trial and hence not reviewable by appeal or motion to set aside the verdict. Dobie v. Commonwealth, 198 Va. 762 , 96 S.E.2d 747, 1957 Va. LEXIS 137 (1957).

    It does not have function of writ of error. —

    Defendant’s assignment of error that there was a reasonable doubt of his guilt on the original trial, was one not properly to be considered under a motion under this section, for the writ of coram vobis does not have the function of a writ of error to bring that judgment under review. Dobie v. Commonwealth, 198 Va. 762 , 96 S.E.2d 747, 1957 Va. LEXIS 137 (1957).

    When writ lies for error of fact not apparent on record. —

    The writ of coram vobis lies for an error of fact not apparent on the record, not attributable to the applicant’s negligence, and which if known by the court would have prevented rendition of the judgment. It does not lie for newly-discovered evidence or for facts newly arising or adjudicated at the trial. Dobie v. Commonwealth, 198 Va. 762 , 96 S.E.2d 747, 1957 Va. LEXIS 137 (1957).

    Conviction on plea of guilty. —

    Writ of error coram vobis or motion under this section cannot serve to gain a new trial for a defendant after a conviction on a plea of guilty merely because he might have fared better on a plea of not guilty. Dobie v. Commonwealth, 198 Va. 762 , 96 S.E.2d 747, 1957 Va. LEXIS 137 (1957).

    Change of plea not clerical error. —

    The change of a plea of not guilty of robbery to a plea of guilty of grand larceny was a matter of judgment, and not a “clerical error or error in fact.” Blowe v. Peyton, 208 Va. 68 , 155 S.E.2d 351, 1967 Va. LEXIS 185 (1967).

    A writ of error coram vobis did not lie in the Supreme Court. Reid v. Strider, 48 Va. (7 Gratt.) 76, 1850 Va. LEXIS 20 (1850).

    CIRCUIT COURT OPINIONS

    Motion to correct clerical error set aside. —

    Where the victim filed an action naming the son’s father as a defendant, but where the victim’s motion to correct a clerical error in order to change the name of the defendant to the son was granted, the son’s motion to set aside the order was granted, as the facts did not constitute a clerical error correctable under § 8.01-6 ; the conditions for relation back had not been satisfied. Shadid v. Estabrooks, 61 Va. Cir. 724, 2002 Va. Cir. LEXIS 315 (Fairfax County Dec. 12, 2002).

    Coram vobis relief available to remedy ineffective assistance of counsel concerning immigration consequences of criminal sentence. —

    Defendant’s coram vobis petition pursuant to § 8.01-677 was granted and his sentence on a conviction of grand larceny was reduced from two years to 360 days, as defendant received ineffective counsel based on his attorney’s incorrect advice on the immigration consequences of the sentence. Commonwealth v. Mohamed, 71 Va. Cir. 383, 2006 Va. Cir. LEXIS 244 (Arlington County Aug. 18, 2006).

    Counsel’s failure to advise petitioner of the potential immigration consequences of his guilty pleas was not a clerical error or an error in fact because the writ of error coram vobis was not available to seek relief on a claim of ineffective assistance of counsel. Because more than 21 days had passed since entry of petitioner’s conviction, the court lacked jurisdiction to hear the matter. Sylvain v. Commonwealth, 85 Va. Cir. 400, 2012 Va. Cir. LEXIS 156 (Hanover County Oct. 2, 2012).

    No authority to vacate judgment of nolle prosequi. —

    District court lacked the authority to vacate its judgment of nolle prosequi under the mantle of correcting error either inherently or pursuant to the authority conferred by the statute because its action was not the mere correction of a fact but a change in judgment, which was not contemplated to be within the ambit of the authority conferred by the statute. Commonwealth v. Darab, 99 Va. Cir. 138, 2018 Va. Cir. LEXIS 68 (Fairfax County May 2, 2018).

    Writ denied. —

    Inmate’s petition for a writ of coram vobis was denied, as such relief did not lie where his claim of ineffective assistance of trial counsel could have been corrected by other statutory proceedings, including habeas corpus. Smith v. Commonwealth, 62 Va. Cir. 68, 2003 Va. Cir. LEXIS 81 (Fairfax County May 9, 2003).

    A judgment of conviction that is more than twenty-one days old that has not been appealed cannot be set aside under this section, but a clerical error or error of fact can be corrected. Commonwealth v. Pryor, 2000 Va. Cir. LEXIS 645 (Amherst County Feb. 16, 2000).

    Trial court denied petitioner’s request for a writ of error coram vobis in a case where petitioner was arrested by federal authorities after they realized that petitioner’s earlier conviction for possession of more than five pounds of marijuana with intent to distribute left petitioner, who was not a United States citizen, subject to deportation; petitioner’s claim that petitioner’s attorney in petitioner’s criminal case had not made petitioner aware of the consequences of a conviction on petitioner’s immigration status was not the required error of fact, but, instead, was a misapprehension about the law. Commonwealth v. Cole, 73 Va. Cir. 170, 2007 Va. Cir. LEXIS 76 (Norfolk Apr. 2, 2007).

    In an attempt by defendant to vacate her 18-year-old petit larceny plea, no relief could be granted pursuant to a writ of error coram vobis because the fact that defendant was not asked whether she waived her constitutional rights was a fact that was clear on the record at the time of defendant’s plea and a writ was only appropriate for an error of fact not apparent on the record; the writ was only available for a vital fact that was not known at the time the judgment was rendered, but the general district court knew it was not asking defendant to waive her constitutional rights; and the error of fact alleged by defendant could have been raised in another statutory proceeding, specifically a direct appeal or by a writ of habeas corpus. Commonwealth v. Castro, 90 Va. Cir. 90, 2015 Va. Cir. LEXIS 42 (Fairfax County Mar. 17, 2015).

    § 8.01-677.1. Appeals filed in inappropriate appellate court.

    Notwithstanding any other provisions of this Code, no appeal which was otherwise properly and timely filed shall be dismissed for want of jurisdiction solely because it was filed in either the Supreme Court or the Court of Appeals and the appellate court in which it was filed thereafter rules that it should have been filed in the other court. In such event, the appellate court so ruling shall transfer the appeal to the appellate court having appropriate jurisdiction for further proceedings in accordance with the rules of the latter court. The parties shall be allowed a reasonable time to file such additional or amended pleadings as may be appropriate to proceed with the appeal in the appellate court to which the appeal is transferred.

    History. 1988, c. 382.

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, § 3.

    CASE NOTES

    Construction. —

    Virginia Sup. Ct. R. 5:14 did not apply to transfers of appeal under § 8.01-677.1 , and nothing in that section required that a notice of appeal be filed with the Virginia Court of Appeals when that court transferred an appeal to the Virginia Supreme Court. XL Specialty Ins. Co. v. DOT, 269 Va. 362 , 611 S.E.2d 356, 2005 Va. LEXIS 38 (2005).

    Proper transfer of appeal. —

    Where the grievance panel’s decision was “final and binding,” only its implementation could be granted or denied by the circuit court. Therefore, proceeding before circuit court was not an appeal of the grievance panel’s decision, thus, the Court of Appeals lacked jurisdiction and properly ordered the appeal transferred to the Supreme Court. Virginia Dep't of Taxation v. Daughtry, 19 Va. App. 135, 449 S.E.2d 57, 1994 Va. App. LEXIS 619 (1994), transferred, 250 Va. 542 , 463 S.E.2d 847, 1995 Va. LEXIS 147 (1995).

    Because a writ of coram vobis fell outside the categories in § 17.1-405 , the appellate court had no jurisdiction to address it; accordingly, the matter was transferred to the state supreme court pursuant to § 8.01-677.1 .Draghia v. Commonwealth, 54 Va. App. 291, 678 S.E.2d 272, 2009 Va. App. LEXIS 290 (2009).

    When a party petitioned the circuit court pursuant to subsection D of § 2.2-3006, it did not seek a review of the hearing officer’s decision on the merits, nor did it seek a modification of the hearing officer’s decision; rather, those implementation proceedings recognized that the hearing officer’s decision was final and binding, and the circuit court proceeding was analogous to a proceeding to domesticate and enforce a foreign judgment. The court found the analytical framework holding that enforcement proceedings were not appeals to trial courts over which the court of appeals had appellate jurisdiction convincing; accordingly the petition to the circuit court under subsection D of § 2.2-3006 was not an appeal of the grievance panel decision, and because the court of appeals lacked jurisdiction, the court of appeals ordered the appeal transferred to the Supreme Court of Virginia pursuant to § 8.01-677.1 .Va. Dep't of Corr. v. Estep, 55 Va. App. 386, 685 S.E.2d 891, 2009 Va. App. LEXIS 549 (2009), transferred, No. 092501, 2010 Va. LEXIS 125 (Va. Mar. 16, 2010).

    Intermediate appellate court transferred an appeal to the state supreme court, pursuant to § 8.01-677.1 , because the intermediate court did not have jurisdiction pursuant clause (i) of subsection A of § 17.1-406 to consider an appeal by a reporter and a newspaper of an order placing copies of court exhibits under seal in a criminal matter. The trial court’s order to remove the exhibits and place the copies under seal was not a purely criminal matter falling under the intermediate court’s jurisdiction under clause (i). Daily Press, Inc. v. Commonwealth, 60 Va. App. 213, 725 S.E.2d 737, 2012 Va. App. LEXIS 175 (2012).

    In a case where a jury found appellant’s dog to be dangerous, and the trial court ordered appellant to comply with registration and maintenance provisions and to make restitution, the underlying proceeding and appeal were civil in nature as appellant sustained no criminal conviction; thus, because the current appeal was civil in nature, the court of appeals lacked jurisdiction to consider it, and the court of appeals transferred the case to the Supreme Court of Virginia. O'Malley v. Commonwealth, 66 Va. App. 296, 785 S.E.2d 221, 2016 Va. App. LEXIS 147 (2016).

    Court of Appeals of Virginia lacked jurisdiction to consider the issue raised by the appeal of a motion to vacate a conviction for extrinsic fraud because the issue was a collateral civil matter. Transfer of the case to the Supreme Court of Virginia was required. Terry v. Commonwealth, 2017 Va. App. LEXIS 347 (Va. Ct. App. Feb. 27, 2017), aff'd, No. 170279, 2018 Va. Unpub. LEXIS 6 (Va. Apr. 5, 2018).

    Case not transferred. —

    When the Virginia Supreme Court dismissed defendant’s appeal from the denial of a motion to dismiss a case in which defendant was found incompetent to stand trial for lack of jurisdiction due to the appeal’s criminal nature, the case was not transferred to the Virginia Court of Appeals because there had been no final conviction. Martinez v. Commonwealth, 296 Va. 387 , 821 S.E.2d 529, 2018 Va. LEXIS 176 (2018).

    Appeal from injunction related to sale of business. —

    Appeal brought by a buyer’s owner challenging the issuance of an injunction concerning use of a business name under an asset purchase agreement was transferred to the Supreme Court of Virginia because the jurisdiction of the Court of Appeals of Virginia under subdivision 4 of § 17.1-405 did not extend to an injunction related solely to the sale of a business. Chakri, LLC v. STD, Inc., 2008 Va. App. LEXIS 235 (Va. Ct. App. May 13, 2008).

    § 8.01-678. For what a judgment not to be reversed.

    When it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached, no judgment shall be arrested or reversed:

    1. For the appearance of either party, being under the age of eighteen years, by attorney, if the verdict, where there is one, or the judgment be for him and not to his prejudice; or
    2. For any other defect, imperfection, or omission in the record, or for any error committed on the trial.

    History. Code 1950, § 8-487; 1954, c. 333; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-487, part of the old English statute of jeofails, has been rewritten. The age requirement of subdivision (1) has been reduced to 18; subdivisions (2), (3), (4) and (5) have been deleted as no longer necessary.

    Cross references.

    As to what defects in pleadings not to be regarded, see § 8.01-275 .

    Law Review.

    For survey of Virginia law on evidence for the year 1978-1979, see 66 Va. L. Rev. 293 (1980).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 286, 293.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    Applicability. —

    This section applies to both civil and criminal cases. Lavinder v. Commonwealth, 12 Va. App. 1003, 407 S.E.2d 910, 8 Va. Law Rep. 384, 1991 Va. App. LEXIS 203 (1991).

    The defendant may not seek to relitigate the truth of a fact on appeal he chose not to contest at trial. Ferguson v. Commonwealth, 16 Va. App. 9, 427 S.E.2d 442, 9 Va. Law Rep. 1023, 1993 Va. App. LEXIS 42 (1993).

    Judgment reversed only if merits of case affected. —

    Where the trial court has committed error, an appellate court will not reverse the judgment on the ground of error unless it affirmatively appears that the error affected the merits of the case. Sargent v. Commonwealth, 5 Va. App. 143, 360 S.E.2d 895, 4 Va. Law Rep. 762, 1987 Va. App. LEXIS 227 (1987).

    B.Substantial Justice.

    Only error that substantially influenced jury reversible. —

    In a criminal case, it is implicit that, in order to determine whether there has been “a fair trial on the merits” and whether “substantial justice has been reached,” a reviewing court must decide whether the alleged error substantially influenced the jury; if it did not, the error is harmless. Clay v. Commonwealth, 262 Va. 253 , 546 S.E.2d 728, 2001 Va. LEXIS 77 (2001).

    Where: (1) there was no basis to believe that the testimony from one of the victim’s relatives regarding prior violence between defendant and that victim several years earlier affected the jury’s determination of whether defendant was the person witnesses testified to having seen leaving the scene of the victim’s murder; (2) defendant admitted to the same; (3) the physical evidence recovered from defendant’s home established a connection to the bullets used in the offense; and (4) assuming that the jury followed the court’s instructions, it plainly appeared from the record that defendant had a fair trial on the merits and substantial justice was reached. Townsend v. Commonwealth, 2004 Va. App. LEXIS 420 (Va. Ct. App. Sept. 7, 2004), aff'd, 270 Va. 325 , 619 S.E.2d 71, 2005 Va. LEXIS 81 (2005).

    In light of the § 8.01-678 test, a jury instruction as to defendant’s character could not have substantially swayed the jury, as the only facts possibly considered by the jury as character evidence were that defendant was intoxicated, used a sex toy, and had sex with a sixteen-year-old girl, even if consensual. Yet, even if the jury considered these facts to be character evidence, this was testimonial evidence about the facts and circumstances of the case that the jury had to weigh in considering the credibility of the witnesses; the judge’s error in giving the instruction was harmless. Wrede v. Commonwealth, 2006 Va. App. LEXIS 323 (Va. Ct. App. July 18, 2006).

    Reviewing courts pursuant to § 8.01-678 could only reverse a judgment on a jury’s verdict if a party did not receive substantial justice as the result of a fair trial. Accordingly, the state supreme court would not overturn the jury’s verdict for the administrators on their medical malpractice claim against the health care providers, as the jury’s verdict showed that the jury understood that it could award monetary damages only on either the administrator’s survival action claim or wrongful death claim, not both, and the record showed that the jury was very diligent in making sure it did exactly that in only awarding survival action damages. Centra Health, Inc. v. Mullins, 277 Va. 59 , 670 S.E.2d 708, 2009 Va. LEXIS 3 (2009).

    A fair trial on the merits and substantial justice are not achieved if an error at trial has affected the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury’s fact-finding function, that, had the error not occurred, the verdict would have been the same. Taylor v. Commonwealth, No. 0566-93-2 (Ct. of Appeals Jan. 17, 1995).

    If error at trial has affected the verdict, then “a fair trial on the merits and substantial justice” have not been reached. Shaw v. Commonwealth, No. 0357-98-2 (Ct. of Appeals July 20, 1999).

    A criminal conviction shall not be reversed for an error committed at trial when it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached. Taylor v. Commonwealth, No. 0566-93-2 (Ct. of Appeals Jan. 17, 1995).

    In Virginia, non-constitutional error is harmless when it plainly appears from the record and the evidence given at trial that the parties have had a fair trial on the merits and substantial justice has been reached. A fair trial on the merits and substantial justice are reached if an error at trial has not affected the verdict. Benson v. Commonwealth, No. 1937-93-3 (Ct. of Appeals Dec. 13, 1994).

    Substantial justice achieved. —

    Substantial evidence supported the agency decision to retract payments for the identified error codes, including that the hours billed did not match the documentation in the recipient record, the documentation did not contain the required quarterly review of the individual service plan, and there was inadequate documentation for the number of units billed for specialized supervision. Cmty. Alts. Va. v. Jones, 2018 Va. App. LEXIS 215 (Va. Ct. App. Aug. 7, 2018).

    C.Doctrine of Harmless Error.

    Error presumed prejudicial and burden shifts to Commonwealth. —

    While an error committed in the trial of a criminal case does not automatically require reversal, once error is established it is presumed to be prejudicial; the burden then shifts to the Commonwealth to show that it was non-prejudicial, and the case will be reversed if it is not shown that the error is harmless beyond a reasonable doubt. Pavlick v. Commonwealth, 25 Va. App. 538, 489 S.E.2d 720, 1997 Va. App. LEXIS 567 (1997), different results reached on reh'g, 27 Va. App. 219, 497 S.E.2d 920, 1998 Va. App. LEXIS 238 (1998).

    Prejudice mitigated. —

    Trial court did not err in denying an employer’s motion for a retrial on the basis that the trial was tainted by the husband’s dishonest conduct and his attorney’s unethical conduct as the record demonstrated that the employer received a fair trial on the merits and that the trial court mitigated any prejudice the employer may have suffered as a result of the misconduct of the husband and his attorney in destroying evidence related to the husband’s Facebook page and in providing false testimony related to his prior use of anti-depressants and his medical history. Further, the record showed that the trial court carefully considered this misconduct in denying the employer’s motion for a new trial. Allied Concrete Co. v. Lester, 285 Va. 295 , 736 S.E.2d 699, 2013 Va. LEXIS 8 (2013).

    Biased witness. —

    In a prosecution of defendant for trespass, the trial court erred in excluding a video recording, which was relevant to the fact finder’s determination of whether the Commonwealth’s witnesses were biased against defendant. The erroneous exclusion of the video recording was not harmless. Artis v. Commonwealth, 2014 Va. App. LEXIS 323 (Va. Ct. App. Sept. 23, 2014).

    Prosecutorial misconduct was not harmless error. —

    Trial court abused its discretion by denying defendant’s motion for a mistrial due to the Commonwealth Attorney’s prejudicial comments made during closing argument, which referenced prior charges against defendant that involved defendant’s spouse. The error was not harmless because the improper comment was so impressive as to remain in the minds of the jurors and influence their verdict so that it could not be said that the error did not influence the jury, or had little effect. Hawkins v. Commonwealth, 2016 Va. App. LEXIS 360 (Va. Ct. App. Dec. 20, 2016).

    Effect of curative instruction. —

    Although an error is generally presumed to have been prejudicial unless it plainly appears that it could not have affected the result, if a curative instruction is given to the jury, the usual presumption of prejudice is replaced by a presumption that the jury followed the instruction and disregarded the improper evidence; in such a case, a conviction is not subject to reversal unless the error suggests a manifest probability that it was prejudicial to the defendant. Newton v. Commonwealth, 2000 Va. App. LEXIS 602 (Va. Ct. App. Aug. 15, 2000).

    Jury instruction not given. —

    In a trial for leaving the scene of the accident under § 46.2-894, the failure to give an instruction on proximate cause was harmless error under § 8.01-678 because the Commonwealth was only required to prove that defendant was “a” proximate cause of the accident; the jury reasonably could have concluded that defendant’s straying outside his lane of travel was a proximate cause of a motorcyclist’s accident, although defendant did not strike the motorcyclist. Dawson v. Commonwealth, 2011 Va. App. LEXIS 413 (Va. Ct. App. Dec. 28, 2011).

    Trial court’s failure to give defendant’s requested instruction on self-defense was not harmless error because portions of the evidence were in controversy, and the jury could have found defendant not guilty of involuntary manslaughter if properly instructed on justifiable self-defense. Lienau v. Commonwealth, 69 Va. App. 254, 818 S.E.2d 58, 2018 Va. App. LEXIS 239 (2018).

    Circuit court properly rejected defendant’s proffered jury instruction on the lesser-included offense of voluntary manslaughter because, even assuming that defendant presented more than a scintilla of evidence to support a jury instruction on the lesser and included offense of voluntary manslaughter, the jury could not have found reasonable provocation where it found premeditation, and the failure of the trial court to grant defendant’s requested instruction was harmless error. Silver v. Commonwealth, 2020 Va. App. LEXIS 37 (Va. Ct. App. Feb. 11, 2020).

    Error in denying proposed jury instruction was harmless error. —

    Assuming that the trial court erred when it denied defendant’s proposed jury instruction regarding the “Castle doctrine” theory of self-defense, the appellate court found that the error was harmless. The evidence supporting defendant’s guilt for second-degree murder and unlawfully stabbing, wounding, or cutting another in the commission of a felony was overwhelming and the error so insignificant by comparison that the appellate court could conclude the error failed to have any substantial influence on the verdict. Robles v. Commonwealth, 2018 Va. App. LEXIS 269 (Va. Ct. App. Oct. 16, 2018).

    Because the jury, in its verdict of first-degree murder, rejected the factual basis upon which it could have rendered a verdict on the lesser-included offense of involuntary manslaughter, any error in failing to instruct on involuntary manslaughter was harmless; the jury rejected the lesser-included offense of second-degree murder, and in doing so must have found beyond a reasonable doubt that defendant acted not only maliciously but also willfully, deliberately, and premeditatedly. Dosky v. Commonwealth, 2019 Va. App. LEXIS 188 (Va. Ct. App. Aug. 13, 2019).

    Error in admission of evidence presumed prejudicial. —

    While not every erroneous ruling on the admissibility of evidence will constitute reversible error, once error is established it will be presumed to be prejudicial. In such case, the burden shifts to the opposing party to prove that the error was non-prejudicial. Taylor v. Commonwealth, No. 0566-93-2 (Ct. of Appeals Jan. 17, 1995).

    Whether an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. Sargent v. Commonwealth, 5 Va. App. 143, 360 S.E.2d 895, 4 Va. Law Rep. 762, 1987 Va. App. LEXIS 227 (1987).

    An error does not affect a verdict if a reviewing court can conclude, without usurping the jury’s fact finding function, that, had the error not occurred, the verdict would have been the same. Lavinder v. Commonwealth, 12 Va. App. 1003, 407 S.E.2d 910, 8 Va. Law Rep. 384, 1991 Va. App. LEXIS 203 (1991).

    An error is harmless: (1) if other evidence of guilt is so overwhelming and the error so insignificant by comparison that the error could not have affected the verdict or, even if the evidence of the defendant’s guilt is not overwhelming; and (2) if the evidence admitted in error was merely cumulative of other, undisputed evidence. McLean v. Commonwealth, 32 Va. App. 200, 527 S.E.2d 443, 2000 Va. App. LEXIS 280 (2000).

    Harmless error test. —

    If, when all is said and done, one can be sure that the error did not influence the jury, or had but slight effect, the verdict and the judgment should stand; however, if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. If so, or if one is left in grave doubt, the conviction cannot stand. Clay v. Commonwealth, 262 Va. 253 , 546 S.E.2d 728, 2001 Va. LEXIS 77 (2001).

    Admission of alleged hearsay statements in defendant’s rape trial, to which defendant specifically objected and challenged on appeal, was, at most, harmless error; in Virginia, nonconstitutional error was harmless when it plainly appeared from the record and evidence introduced at trial that a defendant had a fair trial on the merits and substantial justice had been reached, and that was true in defendant’s case because competent evidence properly admitted at trial clearly established the facts that defendant claimed were established by inadmissible evidence. Mejia-Martinez v. Commonwealth, 2006 Va. App. LEXIS 80 (Va. Ct. App. Mar. 7, 2006).

    Any error in a trial court’s statements regarding a mother’s monthly income was harmless because the trial court actually calculated the presumptive child support amount by adjusting for the spousal support obligation, just as the father had argued. Milam v. Milam, 65 Va. App. 439, 778 S.E.2d 535, 2015 Va. App. LEXIS 331 (2015).

    In a case in which a jury convicted defendant of DUI, third conviction within ten years, the appellate court assumed, without deciding, that the evidence of HGN testing was scientific, yet lacked sufficient foundational evidence of reliability, and unfairly prejudicial compared to its probative value. Any error in its admission, however, was harmless in light of the overwhelming evidence of defendant’s guilt. Goldberg v. Commonwealth, 2019 Va. App. LEXIS 270 (Va. Ct. App. Nov. 19, 2019), aff'd, No. 191701, 2020 Va. Unpub. LEXIS 29 (Va. Dec. 3, 2020).

    Trial court erred in granting mother’s motion to strike at the close of department’s case-in-chief, as the department established a prima facie showing of abuse and neglect, but the error was harmless as the trial court did not abuse its discretion by ultimately discounting previous findings of abuse made in a prior order and relying on the lack of any subsequent evidence of abuse following the prior order’s finding. Lynchburg Dep't of Soc. Servs. v. Boxley, 2020 Va. App. LEXIS 156 (Va. Ct. App. May 19, 2020).

    Error is harmless which does not injuriously affect the interest of the party complaining. —

    Although a trial court did not view the evidence in the light most favorable to the grandparents, as it was required to do at the motion-to-strike stage, the error was not reversible error because in order to survive the motion to strike, the grandparents’ evidence had to establish a prima facie case that the child might suffer harm if custody was placed with the mother. Because their evidence did not support their claims that the mother was unfit, it could meet the more stringent legal standards that should have been applied. South v. South, 2005 Va. App. LEXIS 96 (Va. Ct. App. Mar. 8, 2005).

    No reversal when substantial rights of litigant have not been prejudiced. —

    Because: (1) evidence of defendant’s separate misdemeanor offenses with two separate victims was not necessary to prove any relevant element of the felony offenses charged involving a third victim, or necessary to prove defendant’s motive, intent or knowledge; and (2) evidence of defendant’s sexual offenses involving the two misdemeanor victims would do little more than show that defendant was a bad man likely to commit that sort of crime, the trial court abused its discretion by not granting defendant’s motion to sever the felony indictments from the misdemeanor indictments for separate trials; however, said error was harmless due to the overwhelming evidence of defendant’s guilt. Smith v. Commonwealth, 2005 Va. App. LEXIS 140 (Va. Ct. App. Apr. 5, 2005).

    On appeal from a first-degree murder conviction, because any error in excluding defendant’s statement or in granting the jury instruction was harmless, said violation of § 18.2-32 was upheld on appeal. Pahno v. Commonwealth, 2008 Va. App. LEXIS 199 (Va. Ct. App. Apr. 22, 2008).

    Error had no influence on final decision. —

    Defendant’s convictions for aggravated malicious wounding, use of a firearm during a felony, and possession of a firearm by a convicted felon were appropriate because his argument regarding prosecutorial misconduct, at best, implicated only harmless error under § 8.01-678 . The appellate court had no doubt about the fact that the alleged error had no degree of influence on the final decision. Goffigan v. Commonwealth, 2010 Va. App. LEXIS 65 (Va. Ct. App. Feb. 23, 2010).

    Defendant’s conviction for unlawful wounding was appropriate because, even if the trial court had erred when it ruled that the test results were hearsay not subject to the business record exception, any error was harmless because it would not have changed the ultimate factual conclusions drawn by the jury, which was that whether defendant had consumed 6 drinks or 12 drinks, his perception, memory, and judgment were to some degree impaired. Lamberti v. Commonwealth, 2011 Va. App. LEXIS 306 (Va. Ct. App. Oct. 11, 2011).

    In a visitation dispute, the trial court erred in admitting a report regarding a psychosexual evaluation of the husband, but the error was harmless because the trial court’s decision to require the husband’s visitation to be supervised was not based on the contents of the report. Hart v. Hart, 2012 Va. App. LEXIS 188 (Va. Ct. App. June 5, 2012).

    Assuming without deciding that a trial court erred in granting a spouse’s motion to strike prior to the conclusion of the complaining spouse’s case-in-chief, any such error was harmless because the complaining spouse’s proffered evidence did not indisputably refute the other spouse’s credible explanations for the spouse’s suspicious conduct. The trial court had ample evidence from the exhaustive depositions, and the complaining spouse’s proffered evidence was legally insufficient to compel a finding that the other spouse committed adultery. Jordan v. Jordan, 2012 Va. App. LEXIS 211 (Va. Ct. App. June 26, 2012).

    In a prosecution for taking indecent liberties with a minor and aggravated sexual battery, the trial court’s admission of the victim’s hearsay statements that she was afraid of being raped by defendant and prayed that God would take her pain away, if error, was harmless under § 8.01-678 , as the appellate court was able to conclude that the effect, if any, of these statements on the jury was only slight. Barker v. Commonwealth, 2013 Va. App. LEXIS 163 (Va. Ct. App. May 28, 2013).

    In a dispute over child support, even if a circuit court erred in excluding a father’s amended individual tax returns from evidence, the error was harmless because the information in the personal returns flowed from amended corporate returns of the father’s subchapter S corporation, which the circuit court had deemed incredible. James v. Owens, 2013 Va. App. LEXIS 203 (Va. Ct. App. July 16, 2013).

    In a dispute over child support, even if a circuit court erred in excluding amended corporate tax returns of a father’s subchapter S corporation from evidence, the error was harmless because the preparer who created the amended returns was not qualified as an expert in subchapter S corporation tax preparation and the amended returns merely reiterated the preparer’s work product, which the circuit court had deemed incredible. James v. Owens, 2013 Va. App. LEXIS 203 (Va. Ct. App. July 16, 2013).

    Any error in refusing to allow a witness’s testimony that would have impeached the victim by contradicting his testimony that defendant never banned him from the property was harmless since the victim had already been impeached on a number of issues and was a convicted felon, yet the trial court found him credible; an additional piece of impeachment testimony would not have altered the outcome of the trial. Edward v. Commonwealth, 2013 Va. App. LEXIS 340 (Va. Ct. App. Nov. 19, 2013).

    Any error by a trial court in denying the admission of exhibits into evidence in a divorce proceeding was harmless because it would not have impacted the trial court’s findings. Woodward v. Woodward, 2014 Va. App. LEXIS 217 (Va. Ct. App. June 3, 2014).

    Any error by a circuit court in accepting into evidence the certification and transcript from a district court, because they might have contained inadmissible opinions by the district court and inadmissible references to an attorney’s prior disciplinary record, was harmless as it did not affect the circuit court’s resolution of the contested issues. Becker v. Commonwealth, 64 Va. App. 481, 769 S.E.2d 683, 2015 Va. App. LEXIS 88 (2015).

    Assuming the trial court erred in admitting a prior conviction order that was signed digitally and was not a properly certified copy, any error was harmless because admitting the digitally signed conviction order had but very slight effect on the final decision; the trial court could have found that defendant had been convicted for driving while intoxicated on two other occasions by simply considering his DMV transcript that listed his convictions. Williams v. Commonwealth, 2015 Va. App. LEXIS 236 (Va. Ct. App. Aug. 4, 2015).

    As there was abundant evidence in the record demonstrating that defendant sent photographs of his genitals to the minor victim via Snapchat, the erroneous admission of the nude photographs allegedly of him found on his iPad did not influence the jury, or had but slight effect, thus rendering the error harmless in connection with his convictions of use of a computer to solicit a minor and taking indecent liberties with a child. Hillman v. Commonwealth, 811 S.E.2d 853, 2018 Va. App. LEXIS 84 (Va. Ct. App. 2018).

    Even if the trial court’s limitation of cross-examination was in error, that error was harmless because any testimony about a car’s ownership could not have influenced the jury or would have had but slight effect; it was uncontroverted that defendant was the sole occupant of the car stopped by an officer, inside of which a firearm was found, and thus, the question of the car’s ownership was not dispositive. Thomas v. Commonwealth, 2018 Va. App. LEXIS 254 (Va. Ct. App. Oct. 2, 2018).

    Defendant was properly convicted by a jury, inter alia, of strangulation because any error by the circuit court — in allowing a medical examiner’s report and testimony to include the pathological diagnosis of “Status Post Assault/Manual Strangulation” — was harmless inasmuch as the jury was aware of the context of the diagnosis and was able to determine the proper weight to give it, two experts testified that the victim’s stroke symptoms were consistent with strangulation, witnesses testified that the victim said she had been choked, the jury could infer that defendant’s delay in seeking medical treatment for the victim was because he caused her injuries, defendant had a fair trial according to law, and the proof was conclusive of his guilt. Hudson v. Commonwealth, 2019 Va. App. LEXIS 74 (Va. Ct. App. Apr. 2, 2019).

    If a circuit court erred in considering the lack of evidence on the issue of a spouse’s upcoming retirement at the equitable distribution hearing for the divorce decree as a factor in support of continuing spousal support at the original level when the spouse sought a modification of the support award based on a material change in circumstances when the spouse did retire, this error was harmless because it would have not altered the outcome. Jones v. Jones, 2020 Va. App. LEXIS 190 (Va. Ct. App. July 7, 2020).

    Admission of hearsay evidence. —

    Defendant was entitled to a new trial for contributing to the delinquency of a minor because the admission of an investigator’s testimony and a photograph of defendant’s daughter’s driver’s license was not harmless where the investigator lacked personal knowledge of the daughter’s age and based his testimony on the photograph, the testimony was hearsay as it was offered for its truth, the Commonwealth did not advance any hearsay exception under which the testimony was admissible, and the testimony was the only evidence proving the age element of the crime. McCarter v. Commonwealth, 2014 Va. App. LEXIS 404 (Va. Ct. App. Dec. 16, 2014).

    Circuit court erred in admitting a witness’s testimony because the statement at issue, that defendant was the person who killed the victim, only involved defendant’s penal interest and did not implicate any criminal liability on the witness’s part; however, the error was harmless because the same evidence came in through two other witnesses. Warnick v. Commonwealth, 72 Va. App. 251, 844 S.E.2d 414, 2020 Va. App. LEXIS 187 (2020).

    Improper joinder. —

    Trial court’s error in admitting a police officer’s statement was not harmless because the statement — that a supermarket manager had barred defendant from the premises — constituted hearsay where the truth of the statement went directly to proving a required element of trespassing, and there was no other evidence to prove that defendant had been forbidden from remaining upon the premises by a person lawfully in charge thereof. Stackfield v. City of Hampton, 2015 Va. App. LEXIS 367 (Va. Ct. App. Dec. 8, 2015).

    Although the circuit court erred in refusing defendant’s motion to sever, the error was harmless because evidence of the crimes committed against one victim and her identification of defendant would have been admissible at a separate trial for the charges involving the second victim; in the absence of affirmative evidence to the contrary, it was presumed the circuit court judge properly and separately considered only the evidence relevant to the charges in each case. Cousett v. Commonwealth, 71 Va. App. 49, 833 S.E.2d 908, 2019 Va. App. LEXIS 245 (2019).

    Harmless error found in presentation of witness’s prior statement. —

    Trial judge erred in ruling that a defendant’s character was at issue and in instructing the jury that it could consider character in determining guilt or innocence but the error was harmless as the evidence proved that the defendant fully confessed to possessing the marijuana, possessing the cocaine, and simultaneously possessing the cocaine and a firearm. English v. Commonwealth, 2002 Va. App. LEXIS 788 (Va. Ct. App. Dec. 31, 2002).

    Although a witness’s prior written statement was improperly presented to the jury, the error was harmless; where a non-constitutional error was involved, if a criminal defendant had a fair trial on the merits and substantial justice had been reached, defendant’s convictions would not be reversed, under § 8.01-678 . Proctor v. Commonwealth, 40 Va. App. 233, 578 S.E.2d 822, 2003 Va. App. LEXIS 182 (2003).

    Exclusion of cumulative evidence was harmless. —

    Any error in the exclusion of four letters allegedly forgiving a husband’s debt to his wife’s mother was harmless under § 8.01-678 as the husband testified that the debt had been forgiven, and the letters would have been cumulative. Jones v. Ostroth, 2009 Va. App. LEXIS 187 (Va. Ct. App. Apr. 21, 2009).

    Even if the court of appeals assumed that a trial court erred in prohibiting defendant to impeach a victim and her mother by cross-examining them about his desire to move the family, any conceivable error was harmless because defendant was afforded a fair trial on the merits when he was not prevented from attempting to impeach the credibility of the victim and mother by other means, and the jury saw the victim testify and considered very similar evidence allegedly impeaching her testimony, yet it found that she was credible; even if the trial court had permitted defendant’s cross-examination of the victim and mother, their responses would have been cumulative of other evidence because the jury could have fairly inferred from the evidence admitted that the victim and mother were unenthusiastic about moving with defendant and that defendant and the mother had many conflicts over the children, and, therefore, defendant failed to demonstrate that the exclusion of any additional testimony affected the jury’s determination of whether or not a sexual abuse allegation was fabricated. Cable v. Commonwealth, 2009 Va. App. LEXIS 409 (Va. Ct. App. Sept. 15, 2009).

    In a child custody case in which a mother argued that the trial court erred in excluding the testimony of her individual psychologist, any error was harmless and did not warrant reversal. Psychologist’s proffered testimony was that mother was mentally stable and that there was no reason why mother could not care for daughter; the trial judge heard testimony from other witnesses and reached the conclusion that mother was in good health and was able to assess and meet daughter’s needs, and the psychologist’s testimony was thus cumulative to other evidence the trial court considered and apparently credited. Haring v. Hackmer, 2009 Va. App. LEXIS 402 (Va. Ct. App. Sept. 8, 2009).

    Excluding a mother’s testimony about her child’s statements on the basis that it did not fall under the state of mind hearsay exception, if error, was harmless because the child’s statements would have been cumulative to other evidence that the trial court considered. Tartaglino v. Tartaglino, 2013 Va. App. LEXIS 267 (Va. Ct. App. Oct. 1, 2013).

    Trial court did not abuse its discretion when it refused to allow defendant to present the entirety of a telephone conversation to the jury, as the Commonwealth only excerpted two statements from the conversation, and, even if there had been error, it was harmless, as the jury heard evidence regarding defendant’s statements to police and select statements of the telephone conversation. Hope v. Commonwealth, 2017 Va. App. LEXIS 14 (Va. Ct. App. Jan. 24, 2017).

    Assuming without deciding that the trial court erred by limiting defendant’s ability to cross-examine a sexual assault victim about statements she had allegedly made regarding a supposed sexual encounter with an older Marine in her unit, who arguably was defendant, the appellate court found that any such error was harmless, given the other overwhelming evidence of defendant’s guilt. Maldini v. Commonwealth, 2018 Va. App. LEXIS 172 (Va. Ct. App. June 26, 2018).

    Exclusion of evidence held harmless error. —

    Erroneous exclusion of evidence of the victim’s prior inconsistent statement was harmless, because the victim’s testimony was corroborated by the victim’s sister who testified about the events leading up to the attack and an inmate housed with defendant who testified regarding events that occurred during the attack. Harrison v. Commonwealth, 56 Va. App. 382, 694 S.E.2d 247, 2010 Va. App. LEXIS 251 (2010).

    Circuit court’s error in excluding defendant’s statement to the victim was not harmless because by refusing to admit the proffered testimony, the circuit court effectively prevented defendant from offering relevant and admissible evidence in support of his defense that he lacked the criminal intent alleged by the Commonwealth. Bethel v. Commonwealth, 2017 Va. App. LEXIS 120 (Va. Ct. App. May 2, 2017).

    Even if the toxicology evidence of tetrahydrocannabinol (THC) in the victim’s system was erroneously excluded, that exclusion was harmless error because the expert acknowledged that there was no evidence from the toxicology findings that showed whether the victim was impaired by the THC. Miller v. Commonwealth, 2017 Va. App. LEXIS 170 (Va. Ct. App. July 18, 2017).

    Because the evidence of defendant’s guilt was overwhelming, any error that may have occurred in the trial court not admitting the impeachment testimony of defendant’s former attorney was harmless. Fuller v. Commonwealth, 2018 Va. App. LEXIS 106 (Va. Ct. App. Apr. 24, 2018).

    Exclusion of a witness’s testimony regarding a previous act of violence committed by the victim and the victim’s reputation for “bullying and robbing” did not affect the jury’s verdict and thus, was harmless because the evidence of defendant’s guilt was overwhelming; the witness did testify that the victim had a reputation for “being violent and aggressive,” and that testimony clearly supported defendant’s self-defense claim. Dosky v. Commonwealth, 2019 Va. App. LEXIS 188 (Va. Ct. App. Aug. 13, 2019).

    Exclusion of a witness’s testimony regarding the victim’s ambush and robbery of him was harmless because the evidence of defendant’s guilt was overwhelming, and the prejudicial effect of the exclusion of the testimony was lessened by the admission of two other previous acts of violence by the victim; even if the witness’s testimony regarding the incident had been admitted, the verdict would have been the same. Dosky v. Commonwealth, 2019 Va. App. LEXIS 188 (Va. Ct. App. Aug. 13, 2019).

    Assuming the appellate court erred by ruling that proffered testimony of the victim’s aunt was inadmissible, such was harmless; the jury’s decision to acquit defendant on charges based solely on the victim’s uncorroborated testimony but convict him when her testimony was corroborated by other evidence indicated that, had the victim’s aunt’s proffered testimony been admitted, it would not have affected the outcome. Haas v. Commonwealth, 299 Va. 465 , 855 S.E.2d 542, 2021 Va. LEXIS 16 (2021).

    Court did not need to decide whether the trial court erred in sustaining the Commonwealth’s objection to the introduction of text messages based on the rape shield statute because even if the messages had been admitted for impeachment purposes, the DNA and forensic evidence, defendant’s text to the victim, and defendant’s own testimony and statements to police would have provided the trial court with overwhelming evidence corroborating the victim’s testimony that defendant had raped her. Arroyo v. Commonwealth, 2021 Va. App. LEXIS 45 (Va. Ct. App. Mar. 23, 2021).

    Error in admission of evidence found to be harmless. —

    While admission of evidence concerning the defendant’s prior sale of unspecified drugs was error, the error was harmless given the Commonwealth’s other strong evidence of guilt of drug and gun possession. Brown v. Commonwealth, 2003 Va. App. LEXIS 278 (Va. Ct. App. May 6, 2003).

    In defendant’s bench trial on charges of cocaine distribution, a trial court’s possible error in admitting evidence that defendant had sold cocaine to the informant at other times was deemed harmless because the trial court, in its findings, gave no weight to the disputed testimony, and the verdict and judgment were not substantially affected by the admission of that evidence. Defendant received a fair trial and the conviction was proper since other evidence against defendant included an audio tape recording of the drug sale through an informant’s wire, a video tape of defendant entering the informant’s residence, and the informant’s testimony about the sale. Creekmore v. Commonwealth, 2004 Va. App. LEXIS 324 (Va. Ct. App. July 13, 2004).

    Trial court erred in limiting defendant’s inquiry into the nature of the victim’s prior convictions, but the error was harmless as the nature of the victim’s prior felonies was not particularly relevant to determining the credibility of his testimony; the victim and defendant were admittedly incarcerated at the time of the beating. Stump v. Commonwealth, 2004 Va. App. LEXIS 471 (Va. Ct. App. Oct. 5, 2004).

    Although the prior crimes evidence of defendant’s prior robbery offense was improperly admitted into evidence in defendant’s armed robbery and murder case, the error was harmless; the evidence of defendant’s guilt, including defendant’s admissions to numerous people and DNA evidence, was overwhelming. Rose v. Commonwealth, 270 Va. 3 , 613 S.E.2d 454, 2005 Va. LEXIS 57 (2005).

    Although the testimony of the victim’s mother regarding the victim’s pregnancy was irrelevant and erroneously admitted, the error was harmless because the jury had already heard testimony, without objection, from other sources about the victim’s pregnancy and thus, the testimony was merely cumulative. Barnes v. Commonwealth, 2005 Va. App. LEXIS 191 (Va. Ct. App. May 10, 2005).

    Even excluding hearsay evidence in the form of letters from two doctors that were erroneously admitted, the county social services department proved that termination of the mother’s parental rights in the minor child was proper and she did not dispute the evidence that her parental rights in another son, the minor child’s sibling, had been previously terminated, and, thus, the termination of her parental rights in the minor son was proper; accordingly, the improper admission of the hearsay evidence was, at most, harmless error. Fields v. Dinwiddie County Dep't of Soc. Servs., 46 Va. App. 1, 614 S.E.2d 656, 2005 Va. App. LEXIS 236 (2005).

    Erroneous admission of an unredacted copy of defendant’s driving transcript from the Department of Motor Vehicles was harmless because the evidence overwhelmingly proved defendant guilty of a third or subsequent offense of driving on suspended license; defendant testified that his license was suspended at the time in question and that he had previously been convicted twice of driving on a suspended license. Kimberlin v. Commonwealth, 2005 Va. App. LEXIS 145 (Va. Ct. App. Apr. 12, 2005).

    In an attempted robbery case where the manager of a fast-food restaurant said in a 911 call that she was not sure whether defendant was joking when he demanded money, any error in refusing to admit a tape of the call was harmless. It was merely cumulative of the testimony of the manager and of another employee, both of whom testified that they initially thought defendant was joking. Brown v. Commonwealth, 2006 Va. App. LEXIS 233 (Va. Ct. App. Apr. 18, 2006).

    In a murder and arson case, even if a fire investigator’s test results were improperly admitted, the error was harmless because the investigator testified that he could not rule out the possibility of an accidental fire, which supported defendant’s theory of the case. Moreover, there was overwhelming evidence of guilt, including defendant’s statements before the fire that she wanted to kill her husband and needed insurance money, her indifference the night of the fire to the fact that her trailer was burning down with her husband inside, her admission after the fire that she started it to kill her husband and to collect insurance, evidence that she had given her husband an overdose of antidepressants to render him helpless during the fire, and her remark that she would not get caught if her neighbors would keep their mouths shut. Brandt v. Commonwealth, 2006 Va. App. LEXIS 160 (Va. Ct. App. May 2, 2006).

    Any error in admitting “other crimes” evidence as to defendant’s drug use was harmless because the evidence offered a motive for stealing his girlfriend’s money and evidence of defendant’s drug use was already before the court without objection as a result of the cross-examination of the victim. White v. Commonwealth, 2006 Va. App. LEXIS 538 (Va. Ct. App. Nov. 28, 2006).

    Although defendant’s prior perjury conviction was improperly admitted, since defendant did not testify and defendant’s credibility was not at issue, the error was harmless under § 8.01-678 since defendant’s criminal history was properly before the trial court during sentencing as part of a pre-sentence report under § 19.2-299 . Pierce v. Commonwealth, 50 Va. App. 609, 652 S.E.2d 785, 2007 Va. App. LEXIS 419 (2007).

    Even assuming that the Commonwealth did not comply with § 19.2-270.5 regarding a DNA certificate, any error was harmless under § 8.01-678 because the forensic scientist who prepared the DNA certificate testified at trial, explaining the testing conducted, and, thus, the certificate was duplicative of her testimony; even without the admission of the certificate, the evidence against defendant was overwhelming as he was seen in the vicinity of the bank shortly after the robbery wearing the same clothes as the perpetrator. Whitted v. Commonwealth, 2008 Va. App. LEXIS 248 (Va. Ct. App. May 20, 2008).

    Even if the trial court erred in admitting blood test results in defendant’s case of driving under the influence as a fourth or subsequent offense in violation of § 18.2-266 , the admission of such evidence was harmless under § 8.01-678 . Other, compelling evidence including defendant’s strong smell of alcohol, slurred speech, and considerable difficulty in standing steady without assistance showed that defendant had been driving under the influence of alcohol. Lyle v. Commonwealth, 2008 Va. App. LEXIS 205 (Va. Ct. App. Apr. 29, 2008).

    Based on the overwhelming evidence of defendant’s guilt, including testimony from an expert, a police detective, and defendant himself, the latter of which demonstrated a motive and intent to kill, the trial court’s admission of alleged hearsay testimony under the “state of mind” exception to the hearsay rule was harmless error. West v. Commonwealth, 2008 Va. App. LEXIS 193 (Va. Ct. App. Apr. 22, 2008).

    Error in the admission into evidence of out-of-court statements made by two witnesses to police detectives was harmless under § 8.01-678 because the challenged hearsay statements that the witnesses identified defendant to the detectives as the shooter were merely cumulative of other undisputed evidence at trial. Henh Chu Ngo v. Commonwealth, 2008 Va. App. LEXIS 285 (Va. Ct. App. June 17, 2008).

    Even if the court erred in admitting the checks, the error was harmless as the husband testified that the wife admitted to him that she took between $1,000 and $2,000 per week from the bank accounts to purchase drugs; therefore, by her own statements, she used the funds for a negative non-monetary contribution. Grimes v. Grimes, 2008 Va. App. LEXIS 413 (Va. Ct. App. Sept. 2, 2008).

    Any error in permitting a former guardian ad litem to testify about what the guardian ad litem observed was harmless, because the testimony was merely cumulative and did not influence the fact finder; the record was full of other testimony detailing the extensive services offered by the Department of Human Services. Hey v. Arlington County Dep't of Human Servs., 2008 Va. App. LEXIS 572 (Va. Ct. App. Dec. 30, 2008).

    Although the trial court erred in a DUI trial in allowing testimony that defendant was offered breath tests following a traffic stop, that evidence was harmless because there was overwhelming evidence that defendant drove while intoxicated; under § 4.1-100 , “intoxicated” meant a condition in which a person had drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance, or behavior. The evidence at trial proved that defendant drove his car at a reckless speed and that, when stopped, he had an odor of alcohol about his breath, red and glassy eyes, and slurred speech, and performed poorly on field sobriety tests. Reid v. Commonwealth, 2009 Va. App. LEXIS 308 (Va. Ct. App. July 14, 2009).

    In defendant’s forgery case, although the appellate court accepted the Commonwealth’s concession of error concerning the admission of a witness’ general habit testimony and assumed without deciding that it was error, it concluded that the error was harmless because the erroneously admitted testimony did not influence the verdict of the bench trial. Asinugo v. Commonwealth, 2010 Va. App. LEXIS 280 (Va. Ct. App. July 20, 2010).

    Defendant’s convictions for murder in violation of § 18.2-32 , use of a firearm in the commission of a felony in violation of § 18.2-53.1 , and grand larceny in violation of § 18.2-95 were appropriate because the trial court did not err in admitting evidence of prior crimes to establish defendant’s identity since he disputed his identity as the perpetrator of the instant offenses. Additionally, given the substantial evidence of prior bad acts, evidence of a damaged fence did not substantially influence the jury; its admission was therefore harmless. McMillian v. Commonwealth, 2011 Va. App. LEXIS 74 (Va. Ct. App. Mar. 1, 2011).

    Even if the circuit court erred in taking judicial notice of the foster care plans in a termination of parental rights case, the overall evidence was so overwhelming in showing appellant mother’s failure to satisfy the requirements of subdivision C 2 of § 16.1-283 , especially after her conviction and incarceration for felony child endangerment, that any such error was harmless under § 8.01-678 . Saenz-Romero v. Arlington County Dep't of Human Servs., 2012 Va. App. LEXIS 61 (Va. Ct. App. Mar. 6, 2012).

    Defendant was properly convicted of larceny, third or subsequent offense, in violation of § 18.2-104 because assuming that the trial court erred in admitting evidence of other stolen vehicles, any such error was harmless; the jury’s verdict of guilt would have been the same had evidence of the stolen vehicles been excluded because the evidence of defendant’s guilt was overwhelming. Johnson v. Commonwealth, 2012 Va. App. LEXIS 239 (Va. Ct. App. July 24, 2012).

    Assuming the circuit court erred in admitting a child’s medical records, the error was harmless because the county department of family services presented sufficient evidence to terminate the mother’s parental rights without the admission of the medical records; the trial court found that the mother had limitations that affected her ability to adequately care for the child and his siblings and she was unwilling to accept assistance. Redd v. Loudoun County Dep't of Family Servs., 2014 Va. App. LEXIS 156 (Va. Ct. App. Apr. 29, 2014).

    In this spousal support modification case, the trial court used an accountant’s report in questioning the ex-wife, and the court assumed that the trial court erred in relying on the document, but the error was harmless, given that evidence of the same kind and character was submitted by the ex-husband. Dritselis v. Dritselis, 2014 Va. App. LEXIS 392 (Va. Ct. App. Dec. 2, 2014).

    Admission of screenshots of text messages sent to a confidential informant’s phone was harmless error because the text messages were cumulative of otherwise overwhelming evidence admitted at trial; the informant testified that defendant was the man he knew as “Streetz” and that had sold him cocaine, and the screenshots provided some corroboration for his testimony that he had been communicating with someone he called “Streetz.” Dalton v. Commonwealth, 64 Va. App. 512, 769 S.E.2d 698, 2015 Va. App. LEXIS 97 (2015).

    Parol evidence establishing that a former married couple intended to build a home together was merely cumulative as this intention could have been gleaned from the parties’ premarital agreement itself. Therefore, the trial court’s error in admitting the evidence was harmless. McDaniel v. Griffith, 2016 Va. App. LEXIS 120 (Va. Ct. App. Apr. 12, 2016).

    In a first-degree murder case, the admission of testimony from a detective concerning motorcycle clubs and their culture constituted harmless error. In light of the cumulative nature of the testimony, the circumstances limiting its prejudicial effect, and the strength of the Commonwealth’s evidence, its admission did not affect the jury’s verdict. Hughes v. Commonwealth, 2016 Va. App. LEXIS 149 (Va. Ct. App. May 3, 2016).

    In a first-degree murder case, any error in excluding the testimony from defendant’s psychiatrist explaining defendant’s claimed memory loss was harmless as the Commonwealth presented ample evidence to meet its burden of proving beyond a reasonable doubt that defendant murdered the victim because, although defendant testified the victim stabbed herself, he could not explain how she acquired some of the defensive wounds; the victim’s sister testified that shortly before she learned the victim was dead, the victim called her and reported that defendant had cut her face during a dispute; and the fact that defendant might have had a memory lapse about the incident did not tend to prove he did not commit the offense. Blanding v. Commonwealth, 2016 Va. App. LEXIS 256 (Va. Ct. App. Oct. 4, 2016).

    Any error in admitting a police officer’s challenged testimony estimating the weight of the heroin found in defendant’s hotel room was harmless because the testimony was merely cumulative of another police officer’s independent testimony on the same point. Salahuddin v. Commonwealth, 67 Va. App. 190, 795 S.E.2d 472, 2017 Va. App. LEXIS 18 (2017).

    Court of appeals erred in reversing defendant’s conviction because the trial court’s error in denying defendant’s motion to suppress was harmless since the unchallenged evidence confirmed beyond a reasonable doubt a rational factfinder would have found defendant guilty absent the error; the evidence found in a plastic bag in a motel room had marginal importance in the prosecutor’s case, and the incriminating evidence found during the personal search of defendant was overwhelming and uncontested. Commonwealth v. White, 2017 Va. LEXIS 133 (June 1, 2017).

    Even if it was erroneous to admit a witness’s testimony that defendant did not deny his wife’s statement that he had molested the victim, his stepdaughter, which was merely cumulative of another witness’s unobjected-to testimony that defendant’s wife told her that he had admitted to molesting the victim and was sorry, the error was harmless as the Commonwealth’s case relied on the victim’s credible account of three specific incidents of sexual abuse; and the witness’s testimony about defendant’s purported adoptive admission did not influence the trial court as the trier of fact or had but very slight effect. Vigil v. Commonwealth, 2017 Va. App. LEXIS 240 (Va. Ct. App. Sept. 26, 2017).

    Even assuming without deciding that defendant’s motion in limine that was made on the day of trial was timely, any error possibly committed by the trial court in initially not hearing defendant’s motion was rendered harmless as the court ultimately admitted the evidence that was the subject of defendant’s motion in limine without objection from defendant’s trial counsel. Hughes v. Commonwealth, 2018 Va. App. LEXIS 21 (Va. Ct. App. Jan. 30, 2018).

    Due to the testimony provided by a police officer describing a father’s arrest, the admission of a body camera video of the arrest into evidence would have constituted, at most, harmless error because the officer testified at the termination hearing about the events that occurred prior to and during the father’s arrest. Moore v. Dickenson Cty. Dep't of Soc. Servs., 2018 Va. App. LEXIS 62 (Va. Ct. App. Mar. 13, 2018).

    Any error in admitting evidence of defendant’s association with the “Grim Reaper” nickname was harmless. Had the evidence of defendant’s nickname been excluded, the verdict on the charge of heroin distribution would have been the same, given the overwhelming evidence of defendant’s guilt. Neville v. Commonwealth, 2018 Va. App. LEXIS 26 (Va. Ct. App. Feb. 6, 2018).

    In a case in which defendant was convicted of arson of personal property and conspiracy to commit arson, the admission of the first witness’s written statement and the co-conspirator’s statements to the second witness was harmless as the statements were cumulative of and corroborated by competent evidence, and the Commonwealth presented substantial evidence of defendant’s guilt as the first witness’s written statement was cumulative of his trial testimony; and the co-conspirator’s statements to the second witness were not the only evidence establishing that defendant was compensated for his role in the arson because a third witness testified that defendant told him that the co-conspirator wanted to pay defendant to burn his vehicle. Candelaria v. Commonwealth, 2018 Va. App. LEXIS 133 (Va. Ct. App. May 15, 2018), aff'd, No. 180759, 2019 Va. Unpub. LEXIS 14 (Va. May 16, 2019).

    Any error in defendant’s trial for aggravated sexual battery by admitting evidence of the alleged minor victim’s recent complaints of sexual abuse was so insignificant by comparison with the evidence of defendant’s guilt — particularly in light of defendant’s confession — that it could not have affected the verdict. Consequently, even if the trial court erred in admitting evidence of the victim’s recent complaints of sexual abuse, that error was harmless. Martin Garcia Davila v. Commonwealth, 2019 Va. App. LEXIS 6 (Va. Ct. App. Jan. 8, 2019).

    Assuming that the circuit court abused its discretion in allowing the custodian to testify about her contact with the board of supervisors, any error was harmless because the record did not reflect that the circuit court attached any weight to the testimony; the circuit court seemed to dismiss the testimony. Whitmer v. Spotsylvania Cty. Dep't of Soc. Servs., 2019 Va. App. LEXIS 172 (Va. Ct. App. July 23, 2019).

    Assuming that the trial court impermissibly weighed the evidence in deciding a husband’s motion to strike, any such error was harmless, and therefore, could not constitute reversible error, because the alleged error did not affect the trial court’s decision; both the husband’s view of whether there had been a material change in circumstances and the wife’s view of the issue were fully before the trial court at the conclusion of the husband’s evidence. O'Connor v. Shea, 2020 Va. App. LEXIS 73 (Va. Ct. App. Mar. 17, 2020).

    If it were error, any error of the circuit court in allowing the guardian to reveal the child’s preferences was harmless; sources other than the guardian’s statements revealed the child’s preferences, to which the father did not object, and the fact that the guardian’s restatement of the child’s preferences had little to no effect was evinced by the fact that the circuit court did not incorporate the purported preference into its final disposition. Achin v. Ochoa, 2020 Va. App. LEXIS 220 (Va. Ct. App. July 28, 2020).

    Error in admission of evidence not harmless. —

    Erroneous admission of prior crimes evidence to show defendant’s intent to sexually assault the victim was not harmless because the testimony of other women with whom defendant had acted in a similar manner was highly prejudicial and encouraged inference that because defendant committed similar crimes in the past, he likely committed the crimes charged. Gonzales v. Commonwealth, 45 Va. App. 375, 611 S.E.2d 616, 2005 Va. App. LEXIS 143 (2005).

    Trial court erred in allowing the Commonwealth to impeach a witness with an allegedly prior inconsistent statement and that error was not harmless; the testimony of the witness did not contain any substantive statements that were inconsistent with the prior testimony of the witness, and the form of the Commonwealth’s questions exposed the jury to prejudicial and otherwise inadmissible statements made by the witness at a previous trial, and thus it did not appear from the record that the accused had a fair trial on the merits and that substantial justice had been reached. Goodson v. Commonwealth, 2006 Va. App. LEXIS 515 (Va. Ct. App. Nov. 14, 2006).

    Trial court erred in admitting evidence that defendant did not legally purchase a weapon used in the commission of a murder as, although evidence that defendant possessed and used the weapon was relevant to the issue of defendant’s guilt for the charged offenses, whether that possession was legal or illegal was not relevant to an element of the charged offenses or to defendant’s credibility as a witness. This error in admitting the improper impeachment evidence was not harmless because the jury’s assessment of defendant’s credibility was critical to his defense; thus, a new trial was required. Cunningham v. Commonwealth, 2012 Va. App. LEXIS 7 (Va. Ct. App. Jan. 17, 2012).

    Erroneous admission of the eBay and PayPal account statements in an embezzlement action was not harmless, because the objected to evidence closed the loop on testimony by the person whose name was used on those accounts and erased any lingering doubt as to the inculpatory inferences that could have been drawn from the circumstantial evidence implicating defendant. Jenkins v. Commonwealth, 2014 Va. App. LEXIS 8 (Va. Ct. App. Jan. 14, 2014).

    Trial court erred when it admitted a probation officer’s testimony about a probation report without finding good cause for admitting the report over defendant’s objection and the error was not harmless and the requirements of § 8.01-678 , that defendant had a fair trial on the merits and that substantial justice had been reached, were not satisfied. Cox v. Commonwealth, 65 Va. App. 506, 779 S.E.2d 199, 2015 Va. App. LEXIS 355 (2015).

    Error in the admission of bank card transaction statements was not harmless, because the statements were the only link between defendant’s activity and the victim’s bank account and thus, the appellate court could not say that the judgment was not substantially swayed by the error. Martin v. Commonwealth, 2015 Va. App. LEXIS 371 (Va. Ct. App. Dec. 8, 2015).

    Excluding the testimony of two witnesses in defendant’s civil commitment trial as a sexually violent predator was not harmless error where the Commonwealth’s entire case was presented by a psychologist, and the witness testimony would have corroborated the psychologist’s opinion, provided additional facts that would have strengthened the diagnosis of a sexual sadism disorder, and negated the arguments attacking the psychologist’s opinion. Commonwealth v. Proffitt, 292 Va. 626 , 792 S.E.2d 3, 2016 Va. LEXIS 153 (2016).

    Error from improper question deemed harmless. —

    Any error stemming from the original phrasing of the Commonwealth’s question about whether defendant had used illegal drugs on the day of the charged crimes was harmless error, as the trial court ruled the form of the question was improper, the Commonwealth immediately rephrased the question, and the Commonwealth made no further inquiry on that subject. Patrick v. Commonwealth, 2008 Va. App. LEXIS 231 (Va. Ct. App. May 13, 2008).

    Question of whether verdict would have been the same. —

    A criminal conviction must be reversed unless it plainly appears from the record and the evidence given at the trial that the error did not affect the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury’s fact finding function, that, had the error not occurred, the verdict would have been the same. McLean v. Commonwealth, 32 Va. App. 200, 527 S.E.2d 443, 2000 Va. App. LEXIS 280 (2000).

    If a nonconstitutional error did not affect the verdict, the error is harmless. If it plainly appears from the facts and circumstances of a particular case that a nonconstitutional error did not affect the verdict, the error is harmless. Lavinder v. Commonwealth, 12 Va. App. 1003, 407 S.E.2d 910, 8 Va. Law Rep. 384, 1991 Va. App. LEXIS 203 (1991).

    Any error in allowing the Commonwealth to ask defendant whether he had been previously convicted of a felony or a misdemeanor involving moral turpitude, i.e. lying, cheating, or stealing, was harmless because defendant placed his credibility in issue by testifying in his own defense, the Commonwealth was entitled to ask the questions to impeach defendant’s credibility, and defendant’s response to the questions did not affect the jury’s verdict. Shifflett v. Commonwealth, 2014 Va. App. LEXIS 12 (Va. Ct. App. Jan. 14, 2014), aff'd, 289 Va. 10 , 766 S.E.2d 906, 2015 Va. LEXIS 4 (2015).

    Error in refusal to allow impeachment of own witness was harmless under non-constitutional standard. —

    Trial court’s error in denying defense counsel’s motion to impeach his own witness based on her prior inconsistent statement as to the shooter’s clothing was harmless under the non-constitutional standard as the jury resolved the issue of the shooter’s clothing by crediting the Commonwealth’s witnesses, who based their in-court identifications of defendant on face recognition, not clothing. Dupree v. Commonwealth, 2005 Va. App. LEXIS 535 (Dec. 28, 2005), rev’d, 272 Va. 496 , 635 S.E.2d 676 (2006), as to harmless error.

    Admission of expert testimony not harmless. —

    Admission of expert testimony on the way the accident likely occurred and on issues of credibility on the drivers’ and the witnesses’ statements on which the expert partially based his opinions required reversal of defendant’s convictions because the jury could have been persuaded by the expert, qualified by the trial court in the field of accident reconstruction, to believe that defendant was driving wrong way on the highway at the time of the accident; thus, the error was not harmless. Yeldell v. Commonwealth, 2006 Va. App. LEXIS 359 (Va. Ct. App. Aug. 8, 2006).

    Preclusion of therapists’ testimony harmless. —

    Even assuming there was merit in the father’s argument that the mother was using the former § 20-124.3:1 privilege as both a “sword and a shield,” any error was harmless; even with the mother’s testimony and absent the opportunity for rebuttal that the father sought, the trial court found the evidence was sufficient to demonstrate that the mother had passively thwarted the court’s directive regarding communications therapy and was uncooperative in conferring with the parties’ communications therapist, and it did not find the mother’s testimony to the contrary persuasive. Because the trial court found that the child’s therapist had seen the child due to anxiety, any error in precluding the therapist’s testimony was harmless, and neither the mother’s opinion about the child’s anxiety level nor her observations about the child’s statements or behavior opened the door to the therapist’s testimony. Shoemaker v. Karau, 2007 Va. App. LEXIS 126 (Va. Ct. App. Mar. 27, 2007).

    Court must consider burden of proof applied at trial. —

    Even though the burden of proof at trial is not part of the test for measuring whether nonconstitutional error is harmless, a reviewing court must take into account the burden of proof applied at trial when evaluating the impact of an error upon a verdict. Lavinder v. Commonwealth, 12 Va. App. 1003, 407 S.E.2d 910, 8 Va. Law Rep. 384, 1991 Va. App. LEXIS 203 (1991).

    To the extent that the impact of an error on a verdict is affected by the burden of proof in a criminal case, the reviewing court must consider that the fact finder was required to reach its verdict “beyond a reasonable doubt.” Lavinder v. Commonwealth, 12 Va. App. 1003, 407 S.E.2d 910, 8 Va. Law Rep. 384, 1991 Va. App. LEXIS 203 (1991).

    Applying wrong standard of proof not harmless error. —

    Where appellant was found to have violated §§ 3.2-6569 and 3.2-6500 based on her inadequate care of her dog, the trial court’s error in holding the Commonwealth to the preponderance of the evidence standard of proof, instead of proof beyond reasonable doubt as required by § 3.2-6569, was not harmless because there was little proof of a direct and immediate threat to the animal’s life, safety, or health. Mosca v. Commonwealth, 2012 Va. App. LEXIS 379 (Va. Ct. App. Nov. 27, 2012).

    Judgment will be affirmed where no error in excluding evidence. —

    If, upon consideration of all the evidence, including evidence excluded erroneously, the court can conclude that there was no error in the judgment appealed from, the court will affirm it. Pace v. Richmond, 231 Va. 216 , 343 S.E.2d 59, 1986 Va. LEXIS 183 (1986).

    Reversal required where evidence erroneously admitted. —

    Reversal was required where two-to-four week old rib fracture evidence as to victim was erroneously admitted, since malice, required for a second degree murder conviction, may have been inferred by jury from that admission. Pavlick v. Commonwealth, 25 Va. App. 538, 489 S.E.2d 720, 1997 Va. App. LEXIS 567 (1997), different results reached on reh'g, 27 Va. App. 219, 497 S.E.2d 920, 1998 Va. App. LEXIS 238 (1998).

    Admission of similar crimes evidence was not harmless error in defendant’s trial for rape and sodomy as: (1) the required intent was established upon proof that the accused knowingly and intentionally committed the acts constituting the elements of rape, (2) the required lack of consent for rape involved the victim’s mental state, not the defendant’s, (3) the fact that one woman was raped had no tendency to prove that another woman did not consent, and (4) the testimony of two escorts that defendant had attacked them in a manner similar to that described by the victim was highly prejudicial and encouraged the inference that defendant committed the charged crimes as he had committed similar crimes in the past. Gonzales v. Commonwealth, 2004 Va. App. LEXIS 337 (Va. Ct. App. July 13, 2004).

    Where a jury had to determine whether or not the defendant was guilty of two counts of distribution of cocaine and the trial court improperly permitted the introduction of evidence that the defendant had been convicted of the identical offense within the past six months and also had a total of five drug convictions, there was a manifest probability that the improperly admitted convictions were prejudicial to the defendant; a cautionary instruction could not undo the damage done by the introduction of such evidence. Newton v. Commonwealth, 2000 Va. App. LEXIS 602 (Va. Ct. App. Aug. 15, 2000).

    Error in jury instruction was harmless error. —

    Any error in the giving of a jury instruction on flight was harmless, because the evidence in the record, particularly the surveillance video and witness testimony, nonetheless established that defendant committed grand larceny by carrying an unpurchased vacuum from the store. Howell v. Commonwealth, 2012 Va. App. LEXIS 205 (Va. Ct. App. June 19, 2012).

    Erroneous jury instruction not harmless error. —

    Trial court erred by instructing the jury that it could find defendant guilty of violating subsection B of § 46.2-817 if it found that defendant “willfully or wantonly” disregarded a police officer’s signal to stop, instead of instructing the jury that it had to find defendant “willfully and wantonly” disregarded the signal, and although defendant did not object to the trial court’s instruction, the error was not harmless, and it affected defendant’s convictions for eluding police and second degree murder. Bazemore v. Commonwealth, 2003 Va. App. LEXIS 291 (Va. Ct. App. May 13, 2003), op. withdrawn in part, vacated, No. 0103-02-1, 2004 Va. App. LEXIS 9 (Va. Ct. App. Jan. 13, 2004).

    Defendant’s convictions could not stand because the appellate court could not conclude with fair assurance that the substantial rights of defendant were not affected when a circuit court erroneously instructed the jury that it could consider defendant’s departure from an alleged victim’s apartment, after sexual acts had occurred between defendant and the alleged victim, as evidence of flight to avoid detection, apprehension, or arrest in a trial where defendant was convicted of rape and sexual battery. Turman v. Commonwealth, 276 Va. 558 , 667 S.E.2d 767, 2008 Va. LEXIS 123 (2008).

    Trial court’s error in denying defendant’s jury instruction on justifiable self-defense was not harmless because, while defendant did not dispute that he shot the victim twice, he presented other evidence in addition to his own testimony to support his claim of self-defense, both the instruction offered by the Commonwealth on excusable self-defense and the instruction proffered by defendant on justifiable self-defense were accurate statements of the law, significant portions of the evidence were in controversy, and if the jury accepted the testimony of the defense witnesses, it could have found defendant not guilty if properly instructed on justifiable self-defense. Bell v. Commonwealth, 66 Va. App. 479, 788 S.E.2d 272, 2016 Va. App. LEXIS 213 (2016).

    Doctrine of harmless error held applicable. —

    Despite a trial court expressing uncertainty as to whether the applicable standard under § 18.2-387 was one of indecency or one of obscenity, any error was harmless because the verdict convicting defendant would have been the same as a result of defendant’s conduct of exposing his buttocks and breasts (he was a transvestite), in the early morning hours, which was conduct that was intentional and done with the purpose of appealing to the prurient interest in sex. Willis v. Commonwealth, 2005 Va. App. LEXIS 58 (Va. Ct. App. Feb. 8, 2005).

    Where it was clear from the record that the trial judge found sufficient evidence to convict defendant of grand larceny, carjacking, and use of a firearm in the commission of a felony without testimony that defendant contended was hearsay, the requirements of § 8.01-678 were met. Assuming the trial court erred in admitting the evidence, the error was harmless. Buford v. Commonwealth, 2006 Va. App. LEXIS 520 (Va. Ct. App. Nov. 21, 2006).

    When defendant claimed that he was guilty only of second-degree murder, not first-degree murder, any violation of § 8.01-381 by not allowing the jury to replay defendant’s videotaped confession while deliberating was harmless error under § 8.01-678 . The facts that defendant entered his wife’s room and retrieved a loaded gun from a closet, fired twice at her at point-blank range, buried her in a makeshift grave, lied about her whereabouts, and admitted that he killed her because he did not want to take any more verbal harassment from her were irrefutable proof of his specific intent to kill; replaying the videotape would have added little to the deliberative process, given the Commonwealth’s stipulation of its narrative content, the jury’s previous viewing of it, the jury’s in-court review of an agreed transcript, and the nearly identical evidence presented from an investigator. Kirby v. Commonwealth, 50 Va. App. 691, 653 S.E.2d 600, 2007 Va. App. LEXIS 442 (2007).

    Error in holding that a husband was estopped from making a jurisdictional challenge in a divorce action was harmless under § 8.01-678 as the husband was allowed every opportunity to present evidence related to the issue, and the trial court stated that if the husband presented such evidence, the trial court would consider it in its ruling. Kinser v. Kinser, 2007 Va. App. LEXIS 483 (Va. Ct. App. Dec. 27, 2007).

    Although defendant’s presence at a review hearing was required by statute, a trial court’s decision to pronounce sentence without him being present was harmless beyond a reasonable doubt because he was present during the guilt phase, he failed to comply with the terms of his deferred disposition, and a lenient sentence was imposed. Nunez v. Commonwealth, 66 Va. App. 152, 783 S.E.2d 62, 2016 Va. App. LEXIS 78 (2016).

    Despite defendant’s claim that the trial court erred in admitting an improperly authenticated document purportedly authorizing the police to bar persons from the City of Alexandria Redevelopment Housing Authority property, given the overwhelming evidence of defendant’s guilt, including his admission that he was barred from said property, but traversed it anyway in an attempt to flee police, his trespassing conviction under City of Alexandria, Va., § 13-1-33(a), which substantially tracked the language of § 18.2-119 , was upheld on appeal. Thus, any error committed by the trial court in admitting the authorization document into evidence did not substantially influence the court’s verdict, and was therefore, harmless. Cheeks v. City of Alexandria, 2007 Va. App. LEXIS 261 (Va. Ct. App. June 26, 2007).

    In a spousal support action, assuming that the trial court erred in failing to take judicial notice of federal income tax tables and state income tax rates, any such error was harmless, as a wife failed to offer any evidence showing the amount of the wife’s taxable income to which the tax tables or tax rate might apply. Buniva v. Buniva, 2010 Va. App. LEXIS 222 (Va. Ct. App. June 1, 2010).

    Any error in holding that the parties reconciled was harmless, because the parties never executed another written agreement to amend or rescind the property settlement agreement. Harris v. Harris, 2013 Va. App. LEXIS 217 (Va. Ct. App. July 30, 2013).

    Circuit court erred in ruling that a condominium building’s claim for attorney’s fees was not barred by the doctrine of sovereign immunity. However, because the circuit court decided not to impose attorney’s fees or costs against the Commonwealth of Virginia, such error was harmless. Commonwealth ex rel. Fair Hous. Bd. v. Windsor Plaza Condo. Ass'n, 289 Va. 34 , 768 S.E.2d 79, 2014 Va. LEXIS 198 (2014).

    Assuming the oldest child’s statement as to sexual abuse was admitted in error, the error was harmless as there was sufficient other evidence that the children were sexually abused as: (1) they colored on their vaginas with markers and played a game of sticking things in their vaginas; (2) the mother observed the youngest child touching herself inappropriately; (3) the oldest child reacted violently when the father’s name was mentioned; (4) the oldest child’s behavior had deteriorated, requiring hospitalization; and (5) a psychologist testified that the oldest child’s behaviors were highly consistent with sexual abuse and described the youngest child’s behaviors that suggested sexual abuse. Grant v. Quigley, 2015 Va. App. LEXIS 3 (Va. Ct. App. Jan. 13, 2015).

    Admission of a police officer’s limited testimony regarding the contents of text messages made to defendant’s cellular phone had no substantial influence on the finder of fact, or had but slight effect. Consequently, any error in admitting such testimony was harmless. Melice v. Commonwealth, 2016 Va. App. LEXIS 234 (Va. Ct. App. Aug. 30, 2016).

    In a case in which defendant was convicted of statutory burglary, carjacking, aggravated sexual battery, unlawful wounding, attempted murder, strangulation, abduction for pecuniary benefit, and robbery, any error in denying the physical demonstration of defendant’s false teeth would have been harmless given the substantial weight of evidence proving his identity. Eason v. Commonwealth, 2016 Va. App. LEXIS 302 (Va. Ct. App. Nov. 8, 2016).

    Any error in admitting an unredacted autopsy report was harmless because, if a sufficient foundation were not laid, the medical examiner’s opinions were admitted. Davis v. Commonwealth, 2018 Va. App. LEXIS 198 (Va. Ct. App. July 17, 2018).

    Assuming without deciding that a trial court erred in allowing a forensic toxicologist to testify regarding defendant’s blood alcohol content at the time of an auto accident based on retrograde extrapolation, any error was harmless as there was other evidence properly before the court on which to convict defendant of driving under the influence at the time of the accident. Thus, defendant had a fair trial on the merits and substantial justice was reached. Zinner v. Commonwealth, 2018 Va. App. LEXIS 310 (Va. Ct. App. Nov. 6, 2018).

    Any alleged error in the admission of portions of an interrogation video was harmless because other evidence of defendant’s guilt was overwhelming; the nature of the challenged evidence was ambiguous at best because defendant’s demeanor while alone in the interrogation room could be subject to a variety of interpretations, and thus, its probative value was relatively low. Dosky v. Commonwealth, 2019 Va. App. LEXIS 188 (Va. Ct. App. Aug. 13, 2019).

    Any error in the admission of a witness’s testimony was harmless because while the Commonwealth did highlight defendant’s statement in its opening and closing statements, other evidence supported the Commonwealth’s theory of premeditation; even without the witness’s testimony about defendant’s statement, the verdict would have been the same. Dosky v. Commonwealth, 2019 Va. App. LEXIS 188 (Va. Ct. App. Aug. 13, 2019).

    Doctrine held inapplicable. —

    Trial court’s error in considering accounts receivable when they were not listed as marital property on the “Distribution of Property” exhibit was not harmless error as the accounts receivable constituted 31 percent of the marital estate; the impact of the misclassification on the equitable distribution award could not be determined. Gardner v. Gardner, 2005 Va. App. LEXIS 10 (Va. Ct. App. Jan. 11, 2005).

    In a cocaine possession conviction based on a bench trial, admission of the nature of defendant’s prior conviction was not harmless error because it was impossible to determine if this evidence, which potentially prejudiced the trial court’s decision, was limited to credibility. Lawrence v. Commonwealth, 2009 Va. App. LEXIS 426 (Va. Ct. App. Sept. 29, 2009).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    The cases cited below were decided under corresponding provisions of former law. The terms “this statute” and “this section,” as used below, refer to former provisions.

    When section applicable. —

    This section is only applicable where it plainly appears from the record that there has been a fair trial on the merits, and that substantial justice has been reached. Rinehart & Dennis Co. v. Brown, 137 Va. 670 , 120 S.E. 269 , 1923 Va. LEXIS 190 (1923); White v. Lee, 144 Va. 523 , 132 S.E. 307 , 1926 Va. LEXIS 268 (1926); Dozier v. Morrisette, 198 Va. 37 , 92 S.E.2d 366, 1956 Va. LEXIS 172 (1956).

    This statute is intended to cure a defective statement of a cause of action, but not a statement which makes no case. Orange A. & M.R.R. v. Miles, 76 Va. 773 , 1882 Va. LEXIS 79 (1882).

    Where a declaration contains a defective statement of a good cause of action, this is the class of error that this section is designed to cure. City of Richmond v. McCormack, 120 Va. 552 , 91 S.E. 767 , 1917 Va. LEXIS 141 (1917).

    Equally applicable to decree in chancery. —

    This section, while most often invoked to sustain a judgment rendered in an action at law, is equally applicable to a decree in chancery and should always be invoked where it is possible to do so. Morris v. Scruggs, 147 Va. 166 , 136 S.E. 655 , 1927 Va. LEXIS 292 (1927).

    This section and § 8.01-681 are closely related. Kearns v. Hall, 197 Va. 736 , 91 S.E.2d 648, 1956 Va. LEXIS 147 (1956).

    B.Substantial Justice.

    Meaning of substantial justice. —

    In causes triable and tried by juries “substantial justice” in a legal sense has been attained when litigants have had one fair trial on the merits. Virginia Ry. & Power Co. v. Smith, 129 Va. 269 , 105 S.E. 532 , 1921 Va. LEXIS 93 (1921); Virginia Ry. & Power Co. v. Wellons, 133 Va. 350 , 112 S.E. 843 , 1922 Va. LEXIS 103 (1922); Kennedy v. Mullins, 155 Va. 166 , 154 S.E. 568 , 1930 Va. LEXIS 155 (1930).

    Effect when substantial justice done. —

    “Substantial justice,” as used in this section, providing that there shall be no reversal where it appears that the parties have had a fair trial on the merits and substantial justice has been done, has been attained when litigants have had one fair trial on the merits, and although the language of instructions might be the subject of criticism, yet when the instructions read together fairly submitted the conflicting contentions of the parties arising under the evidence, there can be no reversal. Virginia Ry. & Power Co. v. Smith, 129 Va. 269 , 105 S.E. 532 , 1921 Va. LEXIS 93 (1921); Bryant v. Fox, 135 Va. 296 , 116 S.E. 459 , 1923 Va. LEXIS 15 (1923) (see also Northwestern Nat’l Ins. Co. v. Cohen, 138 Va. 177 , 121 S.E. 507 (1924); McNamara v. Rainey Luggage Corp., 139 Va. 197 , 123 S.E. 515 (1924)).

    Where the Supreme Court decides that a case has been correctly decided on the merits, a discussion of whether or not there was error in giving and refusing instructions is unnecessary under this section. Adam-Christian Co. v. McGavock, 147 Va. 252 , 137 S.E. 374 , 1927 Va. LEXIS 299 (1927).

    Duty of court where error not assigned. —

    While error in the giving of an instruction on the last clear chance doctrine was not assigned in terms in the petition or brief of counsel, yet it was the duty of the Supreme Court under this section, in order to vitalize said section, to consider the entire record of the law and the evidence, and, if the parties have had one fair trial on the merits, affirm the judgment, if not remand the same for a new trial. Green v. Ruffin, 141 Va. 628 , 125 S.E. 742 , 1924 Va. LEXIS 4 (1924).

    C.Doctrine of Harmless Error.
    1.Construction and Application.

    When applied. —

    The doctrine of harmless error is favored by the Supreme Court, and it will not interfere with a verdict when it can be said that a case has been fairly tried upon its merits. But the doctrine cannot be applied where there would be serious risk of requiring defendant to pay heavy damages in the case, if, where upon correct instructions, the jury might have found a contrary verdict. Director Gen. of R.R.'s v. Pence's Adm'x, 135 Va. 329 , 116 S.E. 351 , 1923 Va. LEXIS 18 (1923).

    Where a fair trial has been had on the merits and substantial justice has been done, this section prevents interference with the judgment of the lower court for harmless error. Mullins v. Mingo Lime & Lumber Co., 176 Va. 44 , 10 S.E.2d 492, 1940 Va. LEXIS 232 (1940).

    This section is only applicable where it plainly appears from the record that there has been a fair trial on the merits and substantial justice has been reached. If the record shows this, then the formal errors are to be ignored. Irvine v. Carr, 163 Va. 662 , 177 S.E. 208 , 1934 Va. LEXIS 206 (1934).

    Error must be material and prejudicial. —

    In order to constitute reversible error the ruling of the trial court must be material and prejudicial to the interests of the party complaining of it. Taylor v. Turner, 205 Va. 828 , 140 S.E.2d 641, 1965 Va. LEXIS 140 (1965).

    Effect when no other verdict could have been reached. —

    Where no other proper verdict or judgment could have been reached in the trial court, an error in procedure must be regarded as harmless, since, under this section, an error is harmless when a party does not suffer prejudice thereby. Quick v. Southern Churchman Co., 171 Va. 403 , 199 S.E. 489 , 1938 Va. LEXIS 292 (1938).

    Other overwhelming evidence of guilt. —

    While the Commonwealth asked leading questions to defendant’s “pod mate” from jail, the error in permitting such questions was harmless given the overwhelming evidence of guilt, including testimony from defendant’s nephew that defendant said he was going to kill the victim, which led the victim to seek a protective order, defendant’s continued assault on the victim after she was disarmed, and defendant’s evasive behavior following the murder. Cheatham v. Commonwealth, 2016 Va. App. LEXIS 48 (Va. Ct. App. Feb. 16, 2016).

    No reversal when substantial rights of litigants have not been prejudiced. —

    Courts are liberal in the allowance of amendments of pleadings in furtherance of justice, and will not reverse a cause for formal defects in procedure if the substantial rights of litigants have not been prejudiced thereby. Rinehart & Dennis Co. v. Brown, 137 Va. 670 , 120 S.E. 269 , 1923 Va. LEXIS 190 (1923); Rausch & Co. v. Graham Mfg. Corp., 140 Va. 445 , 124 S.E. 427 , 1924 Va. LEXIS 186 (1924).

    Error is harmless which does not injuriously affect the interest of the party complaining, and such injury is not presumed but must affirmatively appear from the record. Bryant v. Fox, 135 Va. 296 , 116 S.E. 459 , 1923 Va. LEXIS 15 (1923).

    This section goes to the limit of harmless error. Dozier v. Morrisette, 198 Va. 37 , 92 S.E.2d 366, 1956 Va. LEXIS 172 (1956).

    In criminal case, proof must be also conclusive of defendant’s guilt. —

    In a criminal prosecution the doctrine of harmless error obtains only when it clearly appears that the accused has had a fair trial according to law and the proof is conclusive of his guilt. If either of these elements be lacking, then an accused has not been accorded the right guaranteed him under the provisions of the statute and organic law. Elliott v. Commonwealth, 172 Va. 595 , 1 S.E.2d 273, 1939 Va. LEXIS 264 (1939).

    However, there is no presumption that an error is harmless. White v. Lee, 144 Va. 523 , 132 S.E. 307 , 1926 Va. LEXIS 268 (1926); Dozier v. Morrisette, 198 Va. 37 , 92 S.E.2d 366, 1956 Va. LEXIS 172 (1956).

    Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Cardwell v. Commonwealth, 209 Va. 412 , 164 S.E.2d 699, 1968 Va. LEXIS 249 (1968).

    2.Illustrations.

    Failure of infant to sue by next friend. —

    Where infant, who did not sue by next friend, recovered a verdict which fairly compensated him for his injuries, the verdict was “for him and not to his prejudice” within the meaning of subdivision (1) of this section and was not void because infant did not sue by next friend. Riddle v. Barksdale, 194 Va. 766 , 75 S.E.2d 507, 1953 Va. LEXIS 144 (1953).

    It is harmless error merely to mention that defendant has casualty insurance. —

    The provisions of this section inhibit the adoption of the rule that in personal injury actions the mere mention of the fact to the jury that the defendant carries casualty insurance is sufficient to warrant the trial court directing a mistrial. Irvine v. Carr, 163 Va. 662 , 177 S.E. 208 , 1934 Va. LEXIS 206 (1934).

    In the course of the trial of an action for personal injuries the specialist who had treated plaintiff was asked by counsel for defendant whether the doctor who had referred the case wished him to see her from time to time. To answer this the specialist read the letter of referral, which included the statement “This is an insurance case.” This was held to be, under the facts of the case and in view of the provisions of this section, harmless error. Simmons v. Boyd, 199 Va. 806 , 102 S.E.2d 292, 1958 Va. LEXIS 128 (1958).

    As is failure to file motion in time as to other defendants. —

    Appellant offered to prove an entry in the clerk’s rule book was erroneous and that no motion was filed until after more than one month from the time process was returned executed as to one or more defendants, not the appellant. It was held that this was not error affecting the substantial rights of the appellant and that it would fall under the intendment of this section. Whitten v. McClelland, 137 Va. 726 , 120 S.E. 146 , 1923 Va. LEXIS 194 (1923).

    Indirect reference of prosecuting attorney to failure of defendant’s husband to testify held harmless error. Mitchell v. Commonwealth, 192 Va. 205 , 64 S.E.2d 713, 1951 Va. LEXIS 169 (1951).

    Informal entry of judgment. —

    The informal entry of a judgment is not a ground for reversing it, the informality being a harmless error. Long v. Pence, 93 Va. 584 , 25 S.E. 593 , 1896 Va. LEXIS 115 (1896).

    Any informality in the entry by the clerk must be corrected by the court below, and is no ground for reversal in the appellate court. Roach v. Blakey, 89 Va. 767 , 17 S.E. 228 , 1893 Va. LEXIS 102 (1893).

    Rulings as to instructions when there could be no other verdict. —

    The rulings of the trial court in granting and refusing instructions are immaterial, where the jury could properly have found no other verdict. New York P. & N.R.R. v. Bundick, Taylor, Corbin-Handy Co., 138 Va. 535 , 122 S.E. 261 , 1924 Va. LEXIS 45 (1924).

    Under this section, a judgment will not be reversed for error in rulings on the instructions where it plainly appeared from the record and the evidence given at the trial that the parties had had a fair trial on the merits and substantial justice had been reached. New York P. & N.R.R. v. Bundick, Taylor, Corbin-Handy Co., 138 Va. 535 , 122 S.E. 261 , 1924 Va. LEXIS 45 (1924).

    When another instruction gives correct ruling. —

    Complaint was made of an instruction because it directed a verdict for the plaintiff without making any reference to the defense based on the alleged failure to give as prompt notice of the theft as the policy required. The instruction would have been clearly free from any criticism if it had referred to that defense, and it is equally clear that the lack of such reference rendered it defective, but the error was rendered harmless by another instruction in the case, which fully set forth the defense in question. Northwestern Nat'l Ins. Co. v. Cohen, 138 Va. 177 , 121 S.E. 507 , 1924 Va. LEXIS 20 (1924).

    Entering a judgment against two defendants in the singular number, “defendant,” instead of the plural, “defendants” does not affect its validity. Roach v. Blakey, 89 Va. 767 , 17 S.E. 228 , 1893 Va. LEXIS 102 (1893).

    And refusal to require filing of bill of particulars. —

    Where a full and clear statement of the plaintiff’s case is made in the declaration, the defendant is not prejudiced by the refusal of the court to require a bill of particulars to be filed. Blue Ridge Light & Power Co. v. Tutwiler, 106 Va. 54 , 55 S.E. 539 , 1906 Va. LEXIS 107 (1906).

    Where it can be seen from the record that no injury could have resulted to the defendant from the failure to file a bill of particulars earlier, in view of this section a reversal will not be granted on that ground. Clinchfield Coal Corp. v. Hayter, 130 Va. 711 , 108 S.E. 854 , 1921 Va. LEXIS 186 (1921).

    Doctrine held applicable. —

    In an action against the driver of a car for the death of an occupant of the car, reckless driving was alleged against the driver. The record shows that the jury was fairly instructed, that the parties have had a fair trial upon the merits of the case and that substantial justice has been done. That is enough, under this section. Poole v. Kelley, 162 Va. 279 , 173 S.E. 537 , 1934 Va. LEXIS 245 (1934).

    Although the trial court erred in concluding that the eight-year-old minor victim, as a matter of law, was a nonconsenting person due to the victim’s age, the error was harmless because the totality of the evidence led inexorably to the conclusion that the victim was unaware that the victim was being filmed surreptitiously in the victim’s bedroom, rendering the victim a nonconsenting person for purposes of defendant’s trial for filming the victim without the victim’s consent on multiple occasions. Blackwell v. Commonwealth, 73 Va. App. 30, 854 S.E.2d 191, 2021 Va. App. LEXIS 29 (2021).

    Doctrine held inapplicable. —

    Where accused did not testify and the attorney for the Commonwealth, in his closing argument, pointed his finger at accused and said that accused had not denied what a witness for the Commonwealth had stated, the doctrine of harmless error was inapplicable. Elliott v. Commonwealth, 172 Va. 595 , 1 S.E.2d 273, 1939 Va. LEXIS 264 (1939).

    D.Incurable Defects.

    Where a bill fails to state a case proper for relief in equity, the court will dismiss it at the hearing, though no objection has been made in the pleadings. Green v. Massie, 62 Va. (21 Gratt.) 356, 1871 Va. LEXIS 55 (1871).

    But a defective bill may be aided by the answer and the evidence. Salamore v. Keiley, 80 Va. 86 , 1885 Va. LEXIS 43 (1885).

    Defect in order correctible on appeal. —

    Where the final order in a condemnation suit inadvertently failed to specify the duration of the condemned easements, this defect could be corrected on appeal and did not justify reversal. Brown v. May, 202 Va. 300 , 117 S.E.2d 101, 1960 Va. LEXIS 222 (1960).

    When failure to appoint guardian ad litem not cured. —

    The omission to appoint a guardian ad litem for an infant defendant is reversible error in all cases, unless it appears that the judgment or decree is for the infant and not to his prejudice. Weaver v. Glenn, 104 Va. 443 , 51 S.E. 835 , 1905 Va. LEXIS 116 (1905) (see also Langston v. Bassette, 104 Va. 47 , 51 S.E. 218 (1905)).

    Article 3. Limitations; Hearing and Decision.

    § 8.01-679. Failure of trial court clerk to deliver record to appellate court.

    Notwithstanding any provision of law to the contrary, no appeal shall be refused or dismissed for failure to deliver the record within the required time if it shall appear from evidence satisfactory to the appellate court that the clerk of the court below failed to deliver to the clerk of the appellate court the record on appeal within the required time.

    History. Code 1950, § 8-489; 1964, c. 7; 1976, c. 615; 1977, c. 617; 1984, c. 703.

    REVISERS’ NOTE

    “Process” is not utilized under modern practice in the granting of an appeal since the procedure under Rule 5:30 is used. Thus, the first two paragraphs in former § 8-489 have been deleted. Since the appeal bond provisions of § 8.01-676.1 contemplate such bonds being set initially by the trial court, there is no need for the limitations of former § 8-489 and the third paragraph thereof has been deleted.

    Cross references.

    As to time within which petition must be presented, see § 8.01-671 .

    For rules as to time and place of filing briefs, see Rule 5:26.

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 132, 206.

    CASE NOTES

    Erroneous refusal of clerk of trial court to transmit record. —

    Defendant contended he should be released because the clerk of the trial court had erroneously refused to transmit the record on the ground the time for appeal had expired. But since mandamus had been issued pursuant to which the record had been transmitted and the case had been reviewed, there had been no denial of due process and defendant’s imprisonment was not illegal. Carter v. Commonwealth, 199 Va. 466 , 100 S.E.2d 681, 1957 Va. LEXIS 212 (1957) (decided under prior law).

    § 8.01-679.1. Arguments made on brief not waived by oral argument.

    It shall not be necessary for any party to expressly reserve in oral argument any argument made on brief before an appellate court and failure to raise any such argument on oral argument shall not constitute a waiver.

    History. 1986, c. 268.

    § 8.01-680. When judgment of trial court not to be set aside unless plainly wrong, etc.

    When a case, civil or criminal, is tried by a jury and a party objects to the judgment or action of the court in granting or refusing to grant a new trial on a motion to set aside the verdict of a jury on the ground that it is contrary to the evidence, or when a case is decided by a court without the intervention of a jury and a party objects to the decision on the ground that it is contrary to the evidence, the judgment of the trial court shall not be set aside unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it.

    History. Code 1950, § 8-491; 1977, c. 617.

    REVISERS’ NOTE

    The limitation in former § 8-491 that this section applied to a “case at law” was removed and the section made applicable to civil and criminal cases generally. There are instances where a jury is provided in equity cases. See § 8.01-336 .

    Former § 8-490 (Issuance of process and supersedeas . . .) has been deleted, since its subject matter is covered by Rule 5:30.

    Former § 8-490.1 (Notice to interveners . . .) has been deleted, since its subject matter is covered by Rule 5:11(b).

    Cross references.

    As to when final judgment to be entered by trial court after verdict is set aside, see § 8.01-430 .

    Law Review.

    For survey of Virginia criminal law for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 240, 269, 272, 276.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    A court may not base its findings on a suspicion which is contrary to the undisputed positive testimony. Hankerson v. Moody, 229 Va. 270 , 329 S.E.2d 791, 1985 Va. LEXIS 203 (1985).

    The burden is on the party alleging trial court error to show by the record that the judgment was erroneous or that the finding was plainly wrong and without evidence to support it by a preponderance of the evidence. Carter v. Thornhill, 19 Va. App. 501, 453 S.E.2d 295, 1995 Va. App. LEXIS 53 (1995).

    Conviction plainly wrong. —

    Circuit court’s finding of guilt and the judgment affirming that conviction, were contrary to the law and evidence and, therefore, plainly wrong because no rational trier of fact could have found the essential elements of defrauding a hotel restaurant beyond a reasonable doubt; the circuit court had reasonable doubt as to defendant’s intent to defraud at the time she gained possession of the food because it found that maybe she did not understand that she could not just be invited by a guest. Caldwell v. Commonwealth, 298 Va. 517 , 840 S.E.2d 343, 2020 Va. LEXIS 36 (2020).

    On the issue of compensatory damages in libel cases when New York Times malice need not be proven, Virginia will continue to follow the established standard of review mandated by this section, that is, “the judgment of the trial court shall not be set aside unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it.” Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, 1985 Va. LEXIS 171, cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (1985).

    B.When Judgment Set Aside.

    Where the sufficiency of the evidence is challenged after conviction, it is the duty of the trial court to consider it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. Black v. Commonwealth, 222 Va. 838 , 284 S.E.2d 608, 1981 Va. LEXIS 381 (1981).

    Where the sufficiency of the evidence is challenged on appeal, that evidence must be construed in the light most favorable to the Commonwealth, giving it all reasonable inferences fairly deducible therefrom. Norman v. Commonwealth, 2 Va. App. 518, 346 S.E.2d 44, 3 Va. Law Rep. 74, 1986 Va. App. LEXIS 301 (1986).

    When conflicting inferences flow from the undisputed evidence, principles of appellate procedure require the Supreme Court to adopt those conclusions most favorable to the Commonwealth if fairly deducible from the proven facts. Pugh v. Commonwealth, 223 Va. 663 , 292 S.E.2d 339, 1982 Va. LEXIS 251 (1982).

    Findings not supported by evidence. —

    The findings of the commissioner and affirmed by the chancellor that wife deserted husband were not supported by substantial, competent and credible evidence. Dexter v. Dexter, 7 Va. App. 36, 371 S.E.2d 816, 5 Va. Law Rep. 175, 1988 Va. App. LEXIS 98 (1988).

    Because the evidence was clearly sufficient to make a jury issue of whether the surgery that a doctor performed on a patient’s toe departed from the standard of care and was a proximate cause of the subsequent amputation of the toe, pursuant to § 8.01-680 , the trial court erred in setting aside the jury’s verdict. Doherty v. Aleck, 273 Va. 421 , 641 S.E.2d 93, 2007 Va. LEXIS 38 (2007).

    Appellate court’s judgment that affirmed the trial court’s judgment finding defendant guilty of concealing a weapon “about his person” as a second offense was plainly wrong and had to be reversed; once defendant exited defendant’s car and closed the door to the car in which defendant had concealed a pistol in the car’s center console compartment, defendant no longer had the pistol “about his person,” as was required for a conviction on the charged offense because the pistol was no longer accessible to defendant so as to afford “prompt and immediate use.” Pruitt v. Commonwealth, 274 Va. 382 , 650 S.E.2d 684, 2007 Va. LEXIS 109 (2007).

    Evidence was insufficient to establish grand larceny where the owner of a store, following a break-in of the store, testified that the total amount of the cigarette packs found on the floor of the store, on the ground outside of the entrance to the store, and dropped from a bag carried by defendant, as defendant fled from a police officer, was $410.59. The evidence failed to prove that: (1) defendant and defendant’s accomplice exercised dominion or absolute control over the cigarette packs found on the floor; (2) there was an asportation of the items found on the floor, i.e. movement of the seized items accompanied by the intent to steal; and (3) the amount of the cigarette packs dropped by defendant from the bag was at least $200. Britt v. Commonwealth, 276 Va. 569 , 667 S.E.2d 763, 2008 Va. LEXIS 115 (2008).

    Trial court’s conclusion that there was not a corporate intent to gift shares in a corporation held by a husband’s mother to the husband and his brother was plainly wrong and unsupported by the evidence under § 8.01-680 . Notwithstanding the label of a sale in the corporate minutes and the existence of token consideration, a variety of factors indelibly marked its true nature as a gift: (1) The corporate minutes, signed by all three directors, reflected that when the corporation redeemed the stock of the mother, it sold two hundred shares to husband and his brother not at fair market value, but at par value of one dollar per share; (2) All three directors testified they understood the transaction to represent a gift; (3) The trial court specifically found that the mother, as the sole shareholder, intended to make a gift, and the mother’s testimony supported this finding. Sfreddo v. Sfreddo, 59 Va. App. 471, 720 S.E.2d 145, 2012 Va. App. LEXIS 13 (2012).

    Since no valuable consideration existed and the husband’s family company intended to make a gift to the husband, the two hundred shares of the company’s stock the husband received represented his separate property from a gift under subdivision A 1 of § 20-107.3 . The trial court’s decision to the contrary was plainly wrong and unsupported by the evidence under § 8.01-680 . Sfreddo v. Sfreddo, 59 Va. App. 471, 720 S.E.2d 145, 2012 Va. App. LEXIS 13 (2012).

    Defendant’s conviction for misdemeanor destruction of property in violation of subsection B of § 18.2-137 was reversed because pursuant to § 8.01-680 , the trial court was plainly wrong in finding that defendant had the specific intent to break an officer’s watch; the record was devoid of any actions or statements by defendant before, during, or after the incident from which the trial court could have inferred his specific intent to damage the officer’s watch. Hyman v. Commonwealth, 2012 Va. App. LEXIS 144 (Va. Ct. App. May 8, 2012).

    Insurance policy issued to a law firm did not cover a law firm partner’s use of a motor vehicle at the time of a motor vehicle accident because a morning commute by the law firm partner from home to work did not constitute use of the partner’s vehicle in the law firm’s business or personal affairs. Because the jury’s finding was contrary to the evidence, the trial court properly set aside the jury finding and entered final judgment in favor of the insurance company. Bartolomucci v. Fed. Ins. Co., 289 Va. 361 , 770 S.E.2d 451, 2015 Va. LEXIS 50 (2015).

    DNA evidence was insufficient to prove defendant was the person who perpetrated the robbery since the DNA was from multiple people, and there was no evidence establishing whether defendant’s DNA was deposited on the items at the time of the robbery; defendant’s conviction was plainly wrong because a reasonable factfinder could not have concluded beyond a reasonable doubt that he was guilty of the crime without resorting to sheer speculation outside the evidence presented by the Commonwealth. Jennings v. Commonwealth, 67 Va. App. 620, 798 S.E.2d 828, 2017 Va. App. LEXIS 117 (2017).

    Court of appeals applied the ends of justice exception to defendant’s conviction for participating in a criminal street gang predicate act of violence because defendant was convicted of a non-offense; because defendant was not convicted of a crime that was a predicate criminal act, he was convicted of a crime that did not exist. Smith v. Virginia, 2019 Va. App. LEXIS 119 (Va. Ct. App. May 14, 2019).

    Court of appeals applied the ends of justice exception to defendant’s conviction for solicitation of arson because there was no proof that a letter defendant wrote directing the recipient to set fire to a residence was received by the intended recipient; the letter was confiscated before it was mailed from jail, and thus, without a letter being communicated to the recipient, defendant could not aid, counsel, procure, or solicit any action by the recipient. Smith v. Virginia, 2019 Va. App. LEXIS 119 (Va. Ct. App. May 14, 2019).

    Defendant’s convictions for suborning perjury were reversed because the evidence failed to establish that defendant ever communicated to the two witnesses his “plan” for them to commit perjury; there was no causal connection between letters defendant wrote and the witnesses’ alleged perjury because the letters were intercepted at a jail, and there was no evidence establishing the recipient’s identity or relation to the witnesses. Smith v. Virginia, 2019 Va. App. LEXIS 119 (Va. Ct. App. May 14, 2019).

    Evidence was insufficient to support defendant’s convictions for intent to distribute marijuana and possession of a Schedule IV controlled substance because, despite the presence of defendant’s personal documents at the apartment, there was no testimony establishing defendant’s presence at the apartment where the drugs were found. Defendant was not present at the apartment when the search warrant was executed, and there was no evidence that defendant constructively possessed the drugs by exercising dominion and control over the drugs. McLaurin v. Commonwealth, 2020 Va. App. LEXIS 265 (Va. Ct. App. Nov. 4, 2020).

    Findings supported by evidence. —

    Holding that a wife did not sign a notice of appeal and that it was not signed on her behalf as required by Va. Sup. Ct. R. 8:8(a) and 8:2(b)(2) was a finding of fact supported by the evidence for purposes of § 8.01-680 as: (1) a husband testified that the wife’s name as printed on the notice of appeal did not appear to be her signature; and (2) the printed name on the notice of appeal was unmistakably different from the cursive imprint of her name on the notice of change of address. Piatt v. Colvin, 2007 Va. App. LEXIS 470 (Va. Ct. App. Dec. 27, 2007).

    Ample evidence supported the rationality of a jury’s finding that defendant murdered his wife and used a firearm in the commission of the murder because days before the murder, defendant twice warned that he intended to retaliate against his wife for filing a criminal domestic assault charge against him and obtaining a protective order; defendant went to the wife’s apartment the night of the murder and later confessed to a cell mate that he killed the wife that night. Owens v. Commonwealth, 2008 Va. App. LEXIS 163 (Va. Ct. App. Apr. 8, 2008).

    Defendant’s conviction for larceny from a person under § 18.2-95 was supported for § 8.01-680 purposes by a victim’s identification of defendant that was corroborated by Deoxyribonucleic Acid from a vest defendant left at the crime scene. Gantt v. Commonwealth, 2008 Va. App. LEXIS 430 (Va. Ct. App. Sept. 23, 2008).

    In a case in which defendant appealed his convictions for breaking and entering, in violation of § 18.2-91 , and grand larceny, in violation of § 18.2-95 , he argued unsuccessfully that the evidence was insufficient to support his convictions. The trial court reasonably concluded from the evidence that the items stolen and those defendant sold to a pawn shop were the same items: (1) the pawn shop required a picture identification prior to purchasing property from a customer, (2) the purchase agreements issued to defendant for the purchase of a guitar and television listed the serial numbers of the items purchased; and (3) those serial numbers matched the serial numbers of the stolen guitar and television. Lunsford v. Commonwealth, 55 Va. App. 59, 683 S.E.2d 831, 2009 Va. App. LEXIS 461 (2009).

    In a case in which defendant appealed his conviction for violating subsection C of § 18.2-57 , he argued unsuccessfully that the evidence was insufficient to support his conviction for assault and battery of a law-enforcement officer. The evidence showed that defendant pushed a police officer and struck him in the chest with an elbow while defendant was trying to prevent the police officers from taking him into custody on outstanding arrest warrants; that was sufficient to establish that defendant acted with the intent to inflict physical harm on the officer in order to impede the officers’ ability to subdue him. Montague v. Commonwealth, 278 Va. 532 , 684 S.E.2d 583, 2009 Va. LEXIS 113 (2009), cert. denied, 559 U.S. 951, 130 S. Ct. 1537, 176 L. Ed. 2d 133, 2010 U.S. LEXIS 1456 (2010).

    In a case in which the Virginia Supreme Court granted defendant an appeal to challenge the sufficiency of the evidence to support his conviction for involuntary manslaughter arising when a police cruiser engaged in a high speed chase of defendant struck a vehicle and killed the driver, defendant argued unsuccessfully that his actions did not directly cause the driver’s death, but that he died solely because of a police officer’s decision to continue the high-speed chase into a populated area. Because defendant’s actions put into operation the high-speed chase, the officer’s intervening actions were not a superseding cause that alone caused the driver’s death, defendant was criminally responsible for the driver’s death because his conduct was a proximate cause of that death, and was a cause without which the driver’s death would not have occurred. Brown v. Commonwealth, 278 Va. 523 , 685 S.E.2d 43, 2009 Va. LEXIS 112 (2009).

    Trial court was not plainly wrong in finding that defendant caused an officer’s watch to break because a rational factfinder could infer that defendant’s resistance to the officers’ efforts to bring him to the ground and place him in handcuffs was a proximate cause of the officer’s watch breaking; the basic facts were that the officer’s watch was intact prior to the struggle with defendant and that the officer’s watch was broken and lying on the ground after the struggle with defendant. Hyman v. Commonwealth, 2012 Va. App. LEXIS 144 (Va. Ct. App. May 8, 2012).

    Denial of defendant’s motion to strike on the ground of insufficient evidence of mental incapacity was not plainly wrong because a rational trier of fact could have found that at the time of the attempted rape, the victim was mentally incapacitated; a doctor testified that the victim functioned at the mental level of an eight to ten-year-old, the victim’s mother testified that the victim was unable to tell the difference between right and wrong, and the victim was unable to live independently. Diggs v. Commonwealth, 2018 Va. App. LEXIS 22 (Va. Ct. App. Jan. 30, 2018).

    Trial court did not err in refusing to set aside the jury’s verdict because it was supported by one witness’s testimony, which was not contradicted by the testimony of two other witnesses; the first witness unequivocally testified she saw defendant shoot the victim, and the testimony of the other witnesses, viewed in light of their particular vantage points, did not directly contradicted her identification of defendant. Wood v. Commonwealth, 2018 Va. App. LEXIS 255 (Va. Ct. App. Oct. 2, 2018).

    Determination that the mother of a dog owner was the custodian or harborer of the dog was not plainly wrong or without evidence to support it because the mother owned the house, and she referred to the dog as “my dog” after the attack and during her testimony. Frouz v. Commonwealth, 296 Va. 391 , 821 S.E.2d 324, 2018 Va. LEXIS 175 (2018).

    Defendant was properly convicted of providing false information to the Virginia Sex Offender and Crimes Against Minors Registry and of failing to register as a violent sex offender because the evidence was sufficient to prove that defendant’s prior conviction for carnal knowledge of a minor constituted a sexually violent offense, that defendant was required to register as a sexually violent offender, and that defendant failed to re-register and failed to report defendant’s change of address. Wright v. Commonwealth, 2019 Va. App. LEXIS 202 (Va. Ct. App. Sept. 17, 2019).

    Expert testimony inadmissible. —

    Trial court erred in entering judgment for the employee on his claim pursuant to the Federal Employers’ Liability Act, 45 U.S.C.S. § 51 et seq. (FELA), in which he alleged that his employer failed to provide him with a safe workplace and, as a result, he developed silicosis from working with ballast that contained silica dust; although the standard of proof in a FELA action was more lenient than in a common-law action, the trial court erred in admitting the employee’s expert testimony regarding the employee’s exposure to silica dust since the expert’s testimony that the employee was exposed to amounts of silica dust that exceeded reasonably safe levels lacked an adequate factual foundation, and, thus, the employee did not show any act of negligence on the employer’s part. Norfolk S. Ry. v. Rogers, 270 Va. 468 , 621 S.E.2d 59, 2005 Va. LEXIS 101 (2005).

    Language of restrictive covenant improperly interpreted. —

    Decision finding that the mobile homes placed on the owners’ lots were not subject to the restrictive covenant had to be reversed pursuant to this section; although the mobile homes were placed on permanent foundations and the tongues and wheels were removed, they were prohibited by the restrictive covenant, which made no distinction between mobile homes that could be moved and those that could not be moved. Forster v. Hall, 265 Va. 293 , 576 S.E.2d 746, 2003 Va. LEXIS 19 (2003).

    Appellate court did not set aside a jury verdict in favor of an employee in the employee’s action under the Federal Employers’ Liability Act, 45 U.S.C.S. §§ 51-60, because the issues of negligence and foreseeability were properly submitted to the jury and the trial court did not abuse its discretion in excluding the testimony of the employer’s expert. Norfolk & W. Ry. Co. v. Keeling, 265 Va. 228 , 576 S.E.2d 452, 2003 Va. LEXIS 23 (2003).

    Where no rational juror would have found violation. —

    Because insufficient evidence showed that defendant had notice of the terms of a protective order entered against her, and the victim never testified that a judge verbally ordered defendant to have no further contact with him, defendant’s conviction for disobeying the terms of said order, in violation of § 16.1-279.1 , was reversed and the warrant was dismissed. Hsiu Tsai v. Commonwealth, 51 Va. App. 649, 659 S.E.2d 594, 2008 Va. App. LEXIS 187 (2008).

    Jury verdict upheld. —

    Evidence was sufficient to support a jury’s verdict convicting defendant of robbery, use of a firearm in the commission of a felony, § 18.2-53.1 , and wearing a mask in public, § 18.2-422 , under circumstances in which defendant did not contest the victim’s testimony that a robbery occurred, defendant and another individual were identified when the victim’s purse was found in a creek near the other individual’s residence and the other individual’s fingerprint was found on the victim’s credit card still inside the purse, when the other individual was arrested, defendant was with him, and, in a subsequent videotaped confession, defendant told a detective that he was the robber and gave numerous specific details about the offense, his subsequent flight from the scene, and the disposal of the purse in the creek; defendant admitted wearing a mask and using a BB gun to commit the offense. Defendant’s actions did not support his claim that he confessed to prevent the other individual from being held responsible for the robbery. Sears v. Commonwealth, 2009 Va. App. LEXIS 319 (Va. Ct. App. July 14, 2009).

    Affirmative defense properly rejected. —

    Defendant’s conviction for trespassing was appropriate because he had informed the university registrar of his intention to withdraw from the university after completing his course work for the spring semester and he was aware that he was not permitted to occupy the apartment beyond May 31, 2009; however, he continued to occupy the apartment on June 1, 2009. Given the very thin evidentiary support offered for defendant’s affirmative defense, the trial court’s rejection of it was not plainly wrong in the case. Maciel v. Commonwealth, 2011 Va. App. LEXIS 9 (Va. Ct. App. Jan. 11, 2011).

    C.Weight Given Decision of Court.

    Judgment of court sitting without jury. —

    When sufficiency of the evidence is attacked, the judgment of the trial court sitting without a jury is entitled to the same weight as a jury verdict, and will not be disturbed on appeal unless plainly wrong or without evidence to support it. Pugh v. Commonwealth, 223 Va. 663 , 292 S.E.2d 339, 1982 Va. LEXIS 251 (1982); Beck v. Commonwealth, 2 Va. App. 170, 342 S.E.2d 642, 1986 Va. App. LEXIS 256 (1986); Hambury v. Commonwealth, 3 Va. App. 435, 350 S.E.2d 524, 3 Va. Law Rep. 1173, 1986 Va. App. LEXIS 379 (1986).

    While the judgment of the court sitting without a jury will not be set aside unless it is plainly wrong or without evidence to support it, a trial court’s conclusion based on evidence that is not in material conflict does not have this binding effect on appeal. Hankerson v. Moody, 229 Va. 270 , 329 S.E.2d 791, 1985 Va. LEXIS 203 (1985).

    The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be disturbed on appeal unless plainly wrong or without evidence to support it. Crumble v. Commonwealth, 2 Va. App. 231, 343 S.E.2d 359, 1986 Va. App. LEXIS 263 (1986).

    Trial court’s judgment following a bench trial that found defendant guilty of eight counts of attempted malicious wounding and eight counts of felonious use of a firearm was not plainly wrong or without evidence to support it and, thus, was affirmed; it showed that defendant tried to maim eight police officers providing security at a nightclub by firing a fusillade of gunfire in their direction. Coleman v. Commonwealth, 2006 Va. App. LEXIS 502 (Va. Ct. App. Nov. 7, 2006).

    Basis for setting aside of jury’s verdict. —

    On review, the court of appeals does not substitute its judgment for the trier of fact; instead, the jury’s verdict will not be set aside unless it appears that it is plainly wrong or without supporting evidence. Waldrop v. Commonwealth, 23 Va. App. 614, 478 S.E.2d 723, 1996 Va. App. LEXIS 803 (1996), rev'd, 255 Va. 210 , 495 S.E.2d 822, 1998 Va. LEXIS 14 (1998).

    Where an owner did not show how, by whom, or even whether a missing convenience key was used in a burglary, the failure was fatal to the owner’s negligence action; by submitting the case to the jury, the trial court erroneously invited the jury to speculate and erroneously denied the association’s § 8.01-680 motion to set aside the jury verdict. Atrium Unit Owners Ass'n v. King, 266 Va. 288 , 585 S.E.2d 545, 2003 Va. LEXIS 92 (2003).

    Trial court will not be disturbed unless plainly wrong. —

    As the fact finder, the trial court determines the credibility of the witnesses and the weight of their testimony; its findings, therefore, will not be disturbed on appeal unless plainly wrong or without evidence to support them. Bankers Credit Serv. of Vermont, Inc. v. Dorsch, 231 Va. 273 , 343 S.E.2d 339, 1986 Va. LEXIS 189 (1986).

    The judgment should be affirmed unless it appears from the evidence that it is plainly wrong or without evidence to support it. Henry v. Commonwealth, 2 Va. App. 194, 342 S.E.2d 655, 1986 Va. App. LEXIS 259 (1986).

    Unless the finding of the trial court is plainly wrong or without evidence to support it, the Court of Appeals will not disturb its findings. Davison v. Commonwealth, 18 Va. App. 496, 445 S.E.2d 683, 10 Va. Law Rep. 1579, 1994 Va. App. LEXIS 389 (1994).

    On review by an appellate court, the evidence must be viewed in the light most favorable to the prevailing party, and the trial court’s judgment will not be disturbed unless it is plainly wrong or there is no evidence to support it; here the Commonwealth’s evidence was overwhelming as to the guilt of the defendant and there was no evidence indicating that anyone but the defendant shot the murder victims. Goins v. Commonwealth, 251 Va. 442 , 470 S.E.2d 114, 1996 Va. LEXIS 54, cert. denied, 519 U.S. 887, 117 S. Ct. 222, 136 L. Ed. 2d 154, 1996 U.S. LEXIS 5758 (1996).

    A trial court’s judgment will not be set aside unless it appears that the judgment is plainly wrong or without supporting evidence. Bell v. Commonwealth, 21 Va. App. 693, 467 S.E.2d 289, 1996 Va. App. LEXIS 126 (1996).

    In reviewing the sufficiency of the evidence, the Court of Appeals of Virginia considers the record, in the light most favorable to the Commonwealth, giving it all reasonable inferences fairly deducible therefrom. The credibility of the witnesses, the weight accorded their testimony, and the inferences drawn from proven facts are matters to be determined by the fact finder, and the judgment of the trial court will not be disturbed unless plainly wrong or unsupported by the evidence. Almond v. Commonwealth, 2004 Va. App. LEXIS 351 (Va. Ct. App. July 20, 2004).

    Defendant’s conviction for possession of cocaine with intent to distribute was supported by sufficient evidence and was not plainly wrong under § 8.01-680 as defendant’s flight from police, the discovery of the cocaine in the exact area where he had fled, and an incriminating statement were sufficient to establish constructive possession; further, the quantity of cocaine found was inconsistent with personal use. Smith v. Commonwealth, 2007 Va. App. LEXIS 457 (Va. Ct. App. Dec. 18, 2007).

    Defendant, who was despondent and expressed a desire to die, admitted putting a bullet hole in the wall of his home and asserted the right to shoot the walls in his house if he wanted to. The trial court was not plainly wrong when it found that the shooting was intentional and such finding was supported by the evidence. Chambers v. Commonwealth, 2016 Va. App. LEXIS 143 (Va. Ct. App. May 3, 2016).

    Decree of chancellor in equity. —

    When a chancellor hears evidence, ore tenus, his decree acquires the same weight as a jury’s verdict and the Supreme Court may only reverse the decree if it is plainly wrong or without evidence to support it, after examining the record in the light most favorable to the prevailing parties and determining whether substantial credible evidence supports the chancellor’s decision. Carter v. Carter, 223 Va. 505 , 291 S.E.2d 218, 1982 Va. LEXIS 231 (1982).

    The judgment of a trial court sitting in equity, when based upon an ore tenus hearing, will not be disturbed on appeal unless plainly wrong or without evidence to support it. Box v. Talley, 1 Va. App. 289, 338 S.E.2d 349, 1986 Va. App. LEXIS 197 (1986).

    When the chancellor hears the evidence ore tenus, his decree is entitled to the same weight as the verdict of a jury. Thus, the chancellors’ decree will not be disturbed unless it is clearly wrong or without evidence to support it. Bowers v. Westvaco Corp., 244 Va. 139 , 419 S.E.2d 661, 8 Va. Law Rep. 3316, 1992 Va. LEXIS 66 (1992).

    Where a chancellor bases his judgment upon stipulated facts rather than upon an ore tenus hearing, his conclusions drawn from the stipulated facts, although highly persuasive and entitled to great weight, are not binding on appeal; however, the appellate court will not reverse the chancellor’s judgment on appeal unless it is plainly wrong or without evidence to support it under § 8.01-680 . USAA Cas. Ins. Co. v. Hertz Corp., 265 Va. 450 , 578 S.E.2d 775, 2003 Va. LEXIS 44 (2003).

    Sufficient evidence supported a chancellor’s decision that the purpose of a restrictive covenant in a deed conveying one lot in a subdivision was to maintain the lot as an open, green area in the subdivision, as this was consistent with setback requirements and building restrictions in various deeds in the subdivision and provisions that a ravine area of which the lot was a natural extension be maintained as a park, and the conditions in the neighborhood had not changed so substantially that the purpose of the restrictive covenant had been defeated. Barner v. Chappell, 266 Va. 277 , 585 S.E.2d 590, 2003 Va. LEXIS 76 (2003).

    Findings of chancellor in equity. —

    A chancellor’s finding on conflicting evidence, heard ore tenus, will not be disturbed on appeal unless it is plainly wrong or without evidence to support it. Ivy Constr. Co. v. Booth, 226 Va. 299 , 309 S.E.2d 300, 1983 Va. LEXIS 285 (1983).

    Trial court’s factual findings given same weight as jury findings. —

    The trial court’s factual findings in making its admissibility determination are to be given the same weight as is accorded a finding of fact by the jury. Rabeiro v. Commonwealth, 10 Va. App. 61, 389 S.E.2d 731, 6 Va. Law Rep. 1762, 1990 Va. App. LEXIS 41 (1990).

    Evidence supported trial court’s finding that airport authority worker was fired because he joined the union where authority’s executive director stated unequivocally that employee was fired because he joined the union. Norfolk Airport Auth. v. Nordwall, 246 Va. 391 , 436 S.E.2d 436, 10 Va. Law Rep. 447, 1993 Va. LEXIS 134 (1993).

    Finding of contamination that supported a declaration that there was no insurance coverage available to an insured based upon pollution exclusion endorsements in its policies was not against the weight of the evidence and was not erroneous pursuant to § 8.01-680 . PBM Nutritionals, LLC v. Lexington Ins. Co., 283 Va. 624 , 724 S.E.2d 707, 2012 Va. LEXIS 84 (2012).

    Evidence supported the circuit court’s approval of the specific modifications to an access road to widen a corporation’s easement becaus the limited modifications were reasonably necessary to accommodate tractor-trailers, and they would not unreasonably burden the servient landowner’s property. Palmer v. R. A. Yancey Lumber Corp., 294 Va. 140 , 803 S.E.2d 742, 2017 Va. LEXIS 135 (2017).

    Circuit court’s finding of reasonable necessity for a corporation’s use of tractor-trailers to transport timber was amply supported by the evidence because witnesses testified using tractor-trailers was the most efficient way to haul logs from the corporation’s property to its sawmill; the witnesses explained that using tractor-trailers was the only way to haul the pine logs at full-length for processing, as the lumber market demanded, and that the industry standard was to use tractor-trailers. Palmer v. R. A. Yancey Lumber Corp., 294 Va. 140 , 803 S.E.2d 742, 2017 Va. LEXIS 135 (2017).

    Trial court’s decision upheld. —

    Trial court’s decision that the evidence was sufficient to convict defendant of aiding and abetting prescription fraud in violation of § 18.2-258.1 , was not irrational and was upheld under § 8.01-680 , where: (1) defendant’s girlfriend falsely told the pharmacist that she had not received the pain medication, including a Schedule II controlled substance under § 54.1-3448, and the pharmacist relied on the misrepresentation when she refilled them, which constituted prescription fraud under § 18.2-258.1 A i and iii; (2) defendant was present at the time, and incited, encouraged, advised, or assisted in the crime; (3) defendant was with his girlfriend on both occasions that the prescriptions were filled, stood silently beside her when she lied about having not received them, and injected himself into the conversation, in a belligerent and distracting manner, when the pharmacist attempted to find out the truth; and (4) defendant said nothing when they were given a second set of medications, which they used to “get high” as soon as they got home. Comeau v. Commonwealth, 2003 Va. App. LEXIS 342 (Va. Ct. App. June 17, 2003).

    Trial court properly held, with the assistance of parol evidence consisting of prior dealings between a landlord and a tenant, that despite an ambiguity in a commercial lease, the tenant was required to replace certain heating, ventilation, and air conditioning (HVAC) equipment located primarily on the roof of the leased premises. Video Zone, Inc. v. KF&F Props., L.C., 267 Va. 621 , 594 S.E.2d 921, 2004 Va. LEXIS 62 (2004).

    Husband’s allegations that due to the fact that both children were enrolled in school full time, thereby increasing the wife’s ability to find work, did not warrant a modification of a prior spousal support order; thus, the trial court’s order was not plainly wrong or without evidence to support it. Martin v. Martin, 2004 Va. App. LEXIS 457 (Va. Ct. App. Sept. 28, 2004).

    Trial court properly refused to set aside a jury verdict for a patient in a medical malpractice suit. The doctor waived his objection that the patient’s expert failed to state an opinion to a reasonable degree of medical probability because the doctor did not raise the objection during the expert’s direct examination but, instead, waited to raise the objection until after the expert was excused and the testimony of several other witnesses was presented. Bitar v. Rahman, 272 Va. 130 , 630 S.E.2d 319, 2006 Va. LEXIS 66 (2006).

    Sufficient evidence existed to support defendant’s conviction for possession with intent to distribute marijuana because while police found defendant in the kitchen and the marijuana, a bag of cocaine, and a gun were in plain view in the living room, defendant had to walk through the living room to reach the kitchen; therefore, it was reasonable to infer that defendant was aware of the presence and character of the drugs in the living room. Additionally, a scale, multiple baggies of marijuana, and cash all found in the kitchen cabinets and a large sum of cash and a gun found on defendant’s person proved sufficient dominion and control over the illicit drugs to establish constructive possession. Wilson v. Commonwealth, 272 Va. 19 , 630 S.E.2d 326, 2006 Va. LEXIS 60 (2006).

    Defendant’s conviction for second-degree murder was affirmed as: (1) defendant arrived at a witness’s home with blood on her T-shirt and arm, (2) defendant’s statement to the witness that the police were looking for her, that she had cut her boyfriend because he called her a bitch, and that she had left him on the floor, bleeding, was not speculative, (3) defendant wielded a deadly weapon to kill the victim and malice could be inferred from the deliberate use of a deadly weapon, and (4) defendant’s hypothesis that the victim stabbed himself was properly rejected as the medical examiner had never seen such a self-inflicted wound. Oliver v. Commonwealth, 2006 Va. App. LEXIS 297 (Va. Ct. App. July 5, 2006).

    Sufficient evidence was introduced to support a finding that defendant had a felony conviction entered prior to his felony convictions in the present case, and, thus, that he could properly be convicted of a statutory violation that involved having a gun while he was a felon; the evidence showed that defendant, when he was 15-years-old, was charged with and convicted of offenses as a juvenile that if committed by an adult would be a felony and, thus, that such conduct occurred before his conduct in the present case. Perez v. Commonwealth, 2006 Va. App. LEXIS 436 (Va. Ct. App. Oct. 3, 2006), aff'd, 274 Va. 724 , 652 S.E.2d 95, 2007 Va. LEXIS 129 (2007).

    Evidence that defendant provided a lawful substance to a victim that he packaged in quantities which he knew were potentially lethal, knowing that the victim intended to ingest them in order to “trip,” was sufficient evidence of defendant’s criminal negligence to support his conviction of involuntary manslaughter. Coyle v. Commonwealth, 50 Va. App. 656, 653 S.E.2d 291, 2007 Va. App. LEXIS 422 (2007).

    Appellant’s conviction for possession of cocaine was upheld because an officer found cocaine in the exact location in a couch where appellant, moments earlier, had inserted a hand; also, it could be reasonably concluded from the evidence that appellant knew the nature and character of the cocaine that appellant attempted to conceal in the corner of the couch. Whitaker v. Commonwealth, 2008 Va. App. LEXIS 288 (Va. Ct. App. June 17, 2008).

    Where appellant stabbed a victim, sufficient evidence supported the conviction for aggravated malicious wounding because the jury could reasonably conclude that the victim had a permanent and significant physical impairment as a result of the stabbing based on the victim’s need for stitches, the resulting scar, a limp, leg numbness, and random abdominal spasms. Toler v. Commonwealth, 2008 Va. App. LEXIS 277 (Va. Ct. App. June 10, 2008).

    Defendant’s conviction for first-degree murder, in violation of § 18.2-32 , was sufficiently supported by evidence showing that the victim rejected defendant’s request to have sex, that defendant convinced the victim, who was described as a little bit slow mentally, to let him walk her to her sister’s home, that the victim never arrived at her intended destination, that defendant pretended to be a deaf juvenile and used false names in order to gain transportation out of Virginia, that the victim’s body was found in a wooded area, and that the victim’s clothes contained semen from defendant. Jordan v. Commonwealth, 2008 Va. App. LEXIS 417 (Va. Ct. App. Sept. 9, 2008).

    Defendant’s grand larceny conviction was supported by sufficient evidence under § 8.01-680 . While no one saw defendant carrying the bags of stolen crab legs out of a store, the evidence showed that defendant and his two cohorts walked into the store, grabbed twelve bags of crab legs, went into a bathroom with them, returned holding nothing in their hands, exited the store without paying for anything, and ran to their car; thus, the logical inference from the evidence presented was that defendant and his two cohorts concealed the crab legs in their clothing while in the bathroom and left the store. Brown v. Commonwealth, 54 Va. App. 107, 676 S.E.2d 326, 2009 Va. App. LEXIS 226 (2009).

    In a case in which defendant appealed his conviction in a bench trial for grand larceny of a rental vehicle, his challenge to the sufficiency of the evidence that he was the criminal agent who stole the vehicle was without merit as it ignored the credibility determinations that the court necessarily reached in support of the conviction, and it also failed to consider the competency of circumstantial evidence to establish guilt beyond a reasonable doubt. The evidence supported the conviction beyond a reasonable doubt. Williams v. Commonwealth, 2012 Va. App. LEXIS 231 (Va. Ct. App. July 17, 2012).

    Where defendant drove his girlfriend’s car at speeds of 77 to 107 miles per hour, 42 to 72 miles per hour over the posted speed limit of 35 miles per hour while driving in a populated area, and he moved out of the through lane of traffic and into the left turn lane, and drove his car into another vehicle causing the two vehicles to hit a third vehicle, there was sufficient evidence to convict him of malicious wounding in violation of § 18.2-51 and felony destruction of property in violation of § 18.2-137 . Knight v. Commonwealth, 61 Va. App. 148, 733 S.E.2d 701, 2012 Va. App. LEXIS 363 (2012).

    Trial court did not plainly err by finding that defendant intentionally and willfully provided false information on a firearm purchase form by checking a box indicating that she was not under indictment because she had been indicted for felony child abuse, entered a guilty plea, there was no formal adjudication of guilt, and she was on probation. She was neither convicted nor acquitted of child neglect when she filled out the firearm purchase form; therefore, she remained under indictment. Maldonado-Mejia v. Commonwealth, 287 Va. 49 , 752 S.E.2d 833, 2014 Va. LEXIS 6 (2014).

    Rational trier of fact could have found that defendant was operating his vehicle while under the influence of alcohol, given his suspicious driving behavior, his admission that he had two shots of liquor prior to driving, the strong odor of alcohol, and his failure to perform well on sobriety tests, and the finding that he was guilty was not plainly wrong. Oliver v. Commonwealth, 2015 Va. App. LEXIS 75 (Va. Ct. App. Mar. 10, 2015).

    Evidence was sufficient to convict defendant of abduction because defendant’s violent entry into the house and the bedroom by kicking in the doors, the time he gained entry at 4:00 am, his intimidating pose of standing over top of the victim while she was sitting on the floor, and his guiding the victim out of the house by placing his hand on her head all combined to frighten the victim into leaving her house against her will in defendant’s company, thus depriving her of her personal liberty. Norman v. Commonwealth, 2015 Va. App. LEXIS 131 (Va. Ct. App. Apr. 14, 2015).

    Circuit court’s judgment finding defendant and codefendant guilty of perjury was not plainly wrong or without evidence to support it both of them stated shortly after an accident that defendant was driving, but in defense of the charges that they were driving while their licenses were suspended on the date of the accident, they both testified under oath in the general district court that they were not in fact driving; there was detailed evidence of their driving with reference to the accident. Gerald v. Commonwealth, 295 Va. 469 , 813 S.E.2d 722, 2018 Va. LEXIS 66 (2018), cert. denied, 139 S. Ct. 846, 202 L. Ed. 2d 613, 2019 U.S. LEXIS 387 (2019).

    Circuit court’s ruling sustaining the jury’s verdict of no damages was not plainly wrong and was supported by the evidence because the jury was entitled to find that the driver failed to prove by a preponderance of the evidence that she suffered any damages from the collision; the jury had before it evidence demonstrating that, contrary to the driver’s account and her report to her physicians, the collision at issue was minor. Shumate v. Mitchell, 296 Va. 532 , 822 S.E.2d 9, 2018 Va. LEXIS 195 (2018).

    Evidence supported defendant’s conviction for driving under the influence of alcohol because defendant rear-ended another vehicle, defendant’s speech was slurred, defendant smelled of alcohol, defendant had droopy eyes, defendant stumbled when exiting defendant’s car and had difficulty standing upon exiting, defendant did not remember being in an accident, defendant later was found passed out some distance from the accident scene, and defendant admitted to drinking and driving. Zinner v. Commonwealth, 2018 Va. App. LEXIS 310 (Va. Ct. App. Nov. 6, 2018).

    Decision to find a husband voluntarily unemployed and subsequently to impute income was not plainly wrong or without evidence in the record because the husband did not overcome the burden to prove that his previous income could not be applied to the modification order. Barrett v. Commonwealth, 2020 Va. App. LEXIS 40 (Va. Ct. App. Feb. 11, 2020).

    Determination to not include the legal services a wife received from her husband as income was not plainly wrong and was supported by the evidence because the wife had incurred extensive legal fees due to the frivolous claims filed by the husband; the circuit court analogized the legal services the wife receives to other occupations in which the services could not reasonably be imputed as income. Barrett v. Commonwealth, 2020 Va. App. LEXIS 40 (Va. Ct. App. Feb. 11, 2020).

    Evidence sufficiency. —

    Evidence presented by the Commonwealth was sufficient to support defendant’s convictions for aggravated malicious wounding, attempted robbery, and using a firearm in the commission of a felony. The victim unequivocally identified defendant as his assailant, and the victim’s testimony regarding the shooting was corroborated by substantial evidence. Collins v. Commonwealth, 2018 Va. App. LEXIS 289 (Va. Ct. App. Oct. 23, 2018).

    Judgment approving jury’s verdict. —

    A trial court’s judgment approving a jury’s verdict is entitled to great weight on appeal and will not be disturbed unless it is contrary to law or plainly wrong. Gray v. Commonwealth, 233 Va. 313 , 356 S.E.2d 157, 3 Va. Law Rep. 2416, 1987 Va. LEXIS 199, cert. denied, 484 U.S. 873, 108 S. Ct. 207, 98 L. Ed. 2d 158, 1987 U.S. LEXIS 3878 (1987).

    Sufficient evidence to support court’s equitable distribution of marital property. —

    Trial court properly made a finding, based on the evidence submitted by a husband and wife in a dissolution proceeding, that the wife contributed $5,000 to her husband’s retirement fund, and was therefore entitled to an equitable credit in the separation of property. Catlett v. Catlett, 2004 Va. App. LEXIS 401 (Va. Ct. App. Aug. 24, 2004).

    Custody decision based on ore tenus hearing. —

    A trial court’s custody decision, when based on an ore tenus hearing, is entitled to great weight and will not be disturbed on appeal unless it is plainly wrong or there is no evidence to support it. Cousins v. Cousins, 5 Va. App. 156, 360 S.E.2d 882, 4 Va. Law Rep. 734, 1987 Va. App. LEXIS 228 (1987).

    Disorderly conduct conviction. —

    When defendant was convicted of disorderly conduct, in violation of Norfolk, Va., City Code § 29-10(1), in a bench trial, the trial court’s findings of fact were not reversed because a rational fact finder could reach the same decision. Wilson v. Commonwealth, 2003 Va. App. LEXIS 232 (Va. Ct. App. Apr. 22, 2003).

    Driving under the influence conviction upheld. —

    Trial court’s verdict was reasonable under § 8.01-680 and the evidence was sufficient to support defendant’s driving under influence conviction under clause (ii) of § 18.2-266 where: (1) defendant admitted consuming vodka that afternoon; (2) he had a half-empty bottle of vodka under the driver’s seat of his wrecked car, and he attempted to get rid of the bottle before the police discovered it; (3) he attempted to flee from the scene of the accident; (4) he smelled of alcohol; and (5) he had no disabling medical condition. Rorech v. Commonwealth, 2003 Va. App. LEXIS 388 (Va. Ct. App. July 8, 2003); Christian v. Commonwealth, 59 Va. App. 603, 721 S.E.2d 809, 2012 Va. App. LEXIS 47 (2012).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    This section was intended to secure speedy determination of litigation, and the court should not hesitate to enter final judgment in cases where it is clear upon the facts that the ends of justice can thereby be attained. Gable v. Bingler, 177 Va. 641 , 15 S.E.2d 33, 1941 Va. LEXIS 249 (1941).

    When section does not apply. —

    Neither this section nor § 8.01-430 has any application except where there has been a motion to set aside the verdict because it is contrary to the evidence, or is without evidence to support it. If the verdict is set aside for some other reason, or if no final judgment has been entered under § 8.01-430 , and, in either case, a new trial has been awarded, the Supreme Court will adopt as a rule of practice that when there have been two trials in the lower court the appellate court will look first to the evidence and proceedings on the first trial, and if it discovers that the court erred in setting aside the verdict on that trial, it will set aside and annul all proceedings subsequent to the first verdict and enter judgment thereon. Hogg v. Plant, 145 Va. 175 , 133 S.E. 759 , 1926 Va. LEXIS 383 (1926).

    Power of courts over verdicts not changed by statute. —

    Trial courts have no greater power over verdicts now than they had before the enactment of this section and § 8.01-430 , nor has the Supreme Court. The Supreme Court has always exercised the power and duty, when not hampered by statute, of setting aside a judgment that was plainly wrong or without evidence to support it. Norfolk & W. Ry. v. T.W. Thayer Co., 137 Va. 294 , 119 S.E. 107 , 1923 Va. LEXIS 156 (1923).

    Case may be heard on certificate of facts or evidence. —

    Since the Code of 1887 went into effect, a case at law, heard and determined by the court, as well as a case tried by a jury, may be heard in the Supreme Court either upon a certificate of facts, or of the evidence. In either case the court should certify the facts when it can do so, but, if it be unable or unwilling to certify the facts because the evidence is conflicting or complicated, or of doubtful credibility, it should certify the evidence. Western Union Tel. Co. v. Powell, 94 Va. 268 , 26 S.E. 828 (1897). And now, as to certificates of evidence or of facts, see § 8.01-678 .

    Illustrative cases collected. —

    Davis v. McCall, 133 Va. 487 , 113 S.E. 835 (1922), contains the following footnote: “The following cases illustrate the application that has been made of this section: Lorillard Co. v. Clay, 127 Va. 734 , 164 S.E. 384 (1920); Rootes v. Holliday, 18 Va. (4 Munf.) 323 (1814); Bird v. Wilkinson, 31 Va. (4 Leigh) 266 (1833); Creigh’s Heirs v. Henson, 51 Va. (10 Gratt.) 231 (1853); Clarke v. McClure, 51 Va. (10 Gratt.) 305 (1853); Lucado v. Tutwiler’s Adm’x, 69 Va. (28 Gratt.) 39 (1877); Mercantile Coop. Bank v. Brown, 96 Va. 614 , 32 S.E. 64 (1899); McClanahan’s Adm’r v. Norfolk & W. Ry., 122 Va. 705 , 96 S.E. 453 (1918); Faison v. Union Camp Corp., 224 Va. 54 , 294 S.E.2d 821 (1982), and cases cited.”.

    B.When Judgment Set Aside.
    1.In General.

    Judgment referred to is a judgment in support of verdict. —

    This section must be read in connection with § 8.01-430 , relative to setting aside the verdict. When so read, it is fairly plain that the judgment referred to in this section is a judgment in support of the verdict. Davis v. McCall, 133 Va. 487 , 113 S.E. 835 , 1922 Va. LEXIS 112 (1922); Norfolk & W. Ry. v. T.W. Thayer Co., 137 Va. 294 , 119 S.E. 107 , 1923 Va. LEXIS 156 (1923); McQuown v. Phaup, 172 Va. 419 , 2 S.E.2d 330, 1939 Va. LEXIS 248 (1939).

    Evidence viewed in light most favorable to prevailing party. —

    The respondent, having prevailed in the trial court, is entitled to have the evidence viewed in its most favorable light from his standpoint, and the judgment of the trial court in such circumstances shall not be set aside unless plainly wrong or without evidence to support it. Hern v. Cox, 212 Va. 644 , 186 S.E.2d 85, 1972 Va. LEXIS 223 (1972); Slayton v. Weinberger, 213 Va. 690 , 194 S.E.2d 703, 1973 Va. LEXIS 209 (1973).

    The evidence is not reviewed with respect to what action the court might have taken as members of the jury. Miles v. Commonwealth, 205 Va. 462 , 138 S.E.2d 22, 1964 Va. LEXIS 203 (1964).

    Court cannot set aside judgment unless plainly wrong or without evidence to support it. —

    Whatever may be the views of the Supreme Court as to the preponderance of evidence, if it is unable to say that the judgment of the trial court supporting the verdict is plainly wrong or without any evidence to support it, it cannot set aside the judgment of the trial court. Varner v. White, 149 Va. 177 , 140 S.E. 128 , 1927 Va. LEXIS 185 (1927) (see Norfolk S. Ry. v. Harris, 190 Va. 966 , 59 S.E.2d 110 (1950)).

    Upon a motion to set aside the verdict of a jury, the Supreme Court considers the case very much as upon a demurrer to the evidence, and the verdict of the jury will not be set aside unless it appears from the evidence that such verdict is plainly wrong or without evidence to support it. Amos v. Franklin, 159 Va. 19 , 165 S.E. 510 , 1932 Va. LEXIS 170 (1932) (see Planters Nat’l Bank v. Heflin Co., 166 Va. 166 , 184 S.E. 216 (1936); Redford v. Booker, 166 Va. 561 , 185 S.E. 879 (1936); Wyckoff Pipe & Creosoting Co. v. Saunders, 175 Va. 512 , 9 S.E.2d 318 (1940)).

    Where the conclusion depends on the weight to be given credible testimony, the verdict cannot be disturbed by the Supreme Court or by the trial court. Norfolk S. Ry. v. Harris, 190 Va. 966 , 59 S.E.2d 110, 1950 Va. LEXIS 186 (1950).

    Where, after a fair trial, the jury has found a verdict of guilty and the circumstances proven are of such character as to warrant that finding, a motion to set aside the verdict on the ground that it is contrary to the evidence should be granted only when it appears from the evidence that such judgment is plainly wrong or without evidence to support it. Orange v. Commonwealth, 191 Va. 423 , 61 S.E.2d 267, 1950 Va. LEXIS 231 (1950).

    When the sufficiency of the evidence is assailed, it is the Supreme Court’s duty to view the evidence which tends to support the verdict and to uphold the verdict unless it is plainly wrong. Miles v. Commonwealth, 205 Va. 462 , 138 S.E.2d 22, 1964 Va. LEXIS 203 (1964).

    Where, after a fair trial, a verdict of guilty is returned and judgment is entered thereon, such judgment should only be disturbed when it appears that it is plainly wrong or without evidence to support it. Miles v. Commonwealth, 205 Va. 462 , 138 S.E.2d 22, 1964 Va. LEXIS 203 (1964).

    In view of the judgment of the court in favor of the plaintiff, the evidence and all reasonable inferences therefrom, under settled principles, must be viewed by the Supreme Court in the light most advantageous to the plaintiff. The judgment cannot be set aside unless it appears from the evidence that it is plainly wrong or without evidence to support it. The question is not whether the evidence would have supported a finding of fact for the losing party; but whether the record contains substantial credible evidence which will support the finding of the trial judge. Barnes v. Moore, 199 Va. 227 , 98 S.E.2d 683, 1957 Va. LEXIS 183 (1957).

    When a case is submitted to the court without the intervention of a jury, on appeal the Supreme Court has no authority under this section to interfere with the judgment of the court below unless it appears from the evidence to support it. Mitchell v. Kennedy, 166 Va. 346 , 186 S.E. 40 , 1936 Va. LEXIS 195 (1936); Richmond Oil Equip. Co. v. W.T. Holt, Inc., 189 Va. 334 , 53 S.E.2d 11, 1949 Va. LEXIS 175 (1949).

    Even when in doubt as to correctness of decision. —

    Under this section, the Supreme Court, even if it has a doubt as to the correctness of the conclusion of the trial judge, will not set the judgment aside, unless it appears that it is plainly wrong or without supporting evidence. Standard Accident Ins. Co. v. Walker, 127 Va. 140 , 102 S.E. 585 , 1920 Va. LEXIS 40 (1920); Graham v. Commonwealth, 127 Va. 808 , 103 S.E. 565 , 1920 Va. LEXIS 88 (1920); Bragg v. Commonwealth, 133 Va. 645 , 112 S.E. 609 , 1922 Va. LEXIS 122 (1922).

    Verdict not disturbed where conclusion depends on weight given credible testimony. —

    Although it is the duty of the court to set aside a verdict that is plainly wrong or without evidence to support it, under this section, where the conclusion depends on the weight to be given credible testimony, the verdict cannot be disturbed. Walrod v. Matthews, 210 Va. 382 , 171 S.E.2d 180, 1969 Va. LEXIS 254 (1969).

    May set aside when plainly wrong or without evidence to support. —

    The jury’s verdict may be set aside when “it appears from the evidence that such judgment is plainly wrong or without evidence to support it.” That is to say, it may be set aside for either of two reasons; it may be set aside when it is without evidence to support it, and it may be set aside when it is plainly wrong even if it is supported by some evidence. Du Pont de Nemours & Co. v. Brown, 129 Va. 112 , 105 S.E. 660 , 1921 Va. LEXIS 80 (1921); Braswell v. VEPCO, 162 Va. 27 , 173 S.E. 365 , 1934 Va. LEXIS 230 (1934); Yanago v. Aetna Life Ins. Co., 164 Va. 258 , 178 S.E. 904 , 1935 Va. LEXIS 199 (1935) (see also Hall v. Commonwealth, 145 Va. 818 , 133 S.E. 683 (1926); Peoples v. Commonwealth, 147 Va. 692 , 137 S.E. 603 (1927)).

    A judgment that is plainly wrong or without evidence to support it should not be allowed to stand. Gillespie v. Somers, 177 Va. 231 , 13 S.E.2d 330, 1941 Va. LEXIS 210 (1941); Douglas v. United Co., 183 Va. 263 , 31 S.E.2d 889, 1944 Va. LEXIS 149 (1944); City of Virginia Beach v. Roman, 201 Va. 879 , 114 S.E.2d 749, 1960 Va. LEXIS 173 (1960).

    Under this section the Supreme Court will set aside a verdict on the ground that it is contrary to the evidence only in a case where the jury have plainly decided against the evidence, or without evidence. Davis v. Commonwealth, 132 Va. 525 , 110 S.E. 252 , 1922 Va. LEXIS 47 (1922).

    The primary question presented is whether or not the evidence is sufficient to sustain the verdict. Though the verdict was approved by the judgment of the trial court, it is the duty of the appellate court to set aside if it is without evidence to support it or plainly wrong. Esso Standard Oil Co. v. Stewart, 190 Va. 949 , 59 S.E.2d 67, 1950 Va. LEXIS 184 (1950); Thalhimer Bros. v. Buckner, 194 Va. 1011 , 76 S.E.2d 215, 1953 Va. LEXIS 170 (1953); Shelton v. Detamore, 198 Va. 220 , 93 S.E.2d 314, 1956 Va. LEXIS 194 (1956).

    Where a litigant is fortified by a jury’s verdict and the judgment of the trial court, he occupies a highly favored position; but when a judgment is plainly wrong or without evidence to support it, it becomes duty of Supreme Court to set it aside. Whichard v. Nee, 194 Va. 83 , 72 S.E.2d 365, 1952 Va. LEXIS 209 (1952) (see Holloway v. Smith, 197 Va. 334 , 88 S.E.2d 909 (1955)).

    It is the duty of the Supreme Court to set aside a judgment that is either plainly wrong or without evidence to support it. Simmons v. Craig, 199 Va. 338 , 99 S.E.2d 641, 1957 Va. LEXIS 195 (1957).

    Challenging sufficiency of evidence after conviction. —

    When the sufficiency of the evidence is challenged after conviction, it is the duty of the Supreme Court to view it in the light most favorable to the Commonwealth, granting all reasonable inferences fairly deducible therefrom. Corbett v. Commonwealth, 210 Va. 304 , 171 S.E.2d 251, 1969 Va. LEXIS 240 (1969); Boykins v. Commonwealth, 210 Va. 309 , 170 S.E.2d 771, 1969 Va. LEXIS 241 (1969); Patler v. Commonwealth, 211 Va. 448 , 177 S.E.2d 618, 1970 Va. LEXIS 269 (1970), cert. denied, 407 U.S. 909, 92 S. Ct. 2445, 32 L. Ed. 2d 682, 1972 U.S. LEXIS 2225 (1972).

    Burden is on appellant to show verdict is contrary to evidence. —

    On an assignment of error to the refusal of the trial court to set aside the verdict of the jury because “contrary to the evidence,” the plaintiff in error, under this section, is before the Supreme Court practically as on a demurrer to the evidence and the burden is on him to show that the verdict is contrary to the evidence, or without evidence to support it. Updike v. Texas Co., 147 Va. 208 , 136 S.E. 591 , 1927 Va. LEXIS 296 (1927).

    Court accepts as true all facts favorable to plaintiff, when verdict is for him. —

    After a verdict has been found in favor of a plaintiff the appellate court must accept as true all of the facts favorable to the plaintiff which the evidence tends to establish. VEPCO v. Blunt's Adm'r, 158 Va. 421 , 163 S.E. 329 , 1932 Va. LEXIS 267 (1932); Nosay v. Owens, 193 Va. 343 , 68 S.E.2d 531, 1952 Va. LEXIS 142 (1952); McDowell v. Dye, 193 Va. 390 , 69 S.E.2d 459, 1952 Va. LEXIS 147 (1952).

    Setting aside judgment where evidence shows contributory negligence. —

    If the fact that decedent was guilty of contributory negligence which caused or efficiently contributed to his death is so conclusively established by the evidence that fair-minded men could not differ, then any judgment rendered in plaintiff’s favor is plainly wrong and it becomes the duty of the Supreme Court to so decide. Hooker v. Hancock, 188 Va. 345 , 49 S.E.2d 711, 1948 Va. LEXIS 169 (1948).

    Effect of circumstantial proof. —

    If the proof relied upon by the Commonwealth is wholly circumstantial, then to establish guilt beyond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt. To accomplish that, the chain of necessary circumstances must be unbroken and the evidence as a whole must satisfy the guarded judgment that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other rational hypothesis and to a moral certainty. Yet what inferences are to be drawn from proved facts is within the province of the jury and not the court so long as the inferences are reasonable and justified. Boykins v. Commonwealth, 210 Va. 309 , 170 S.E.2d 771, 1969 Va. LEXIS 241 (1969).

    2.When Evidence Incredible.

    Court not required to accept incredible evidence. —

    Under this section the Supreme Court cannot be compelled to accept as true what in the nature of things could not have occurred in the manner and under the circumstances narrated. VEPCO v. Walker, 152 Va. 883 , 148 S.E. 694 , 1929 Va. LEXIS 219 (1929).

    The statutory rule, under which the Supreme Court must consider the evidence when certified, cannot compel the court to accept as true what in the nature of things could not have occurred in the manner and under the circumstances narrated. Norfolk & W.R.R. v. Strickler, 118 Va. 153 , 86 S.E. 824 , 1915 Va. LEXIS 134 (1915); Virginian Ry. v. Bell, 118 Va. 492 , 87 S.E. 570 , 1916 Va. LEXIS 30 (1916); Virginia Ry. & Power Co. v. Bailey, 123 Va. 250 , 96 S.E. 275 , 1918 Va. LEXIS 25 (1918).

    The evidence relied upon to support the verdict must not strain the credulity of the court, but it must fairly sustain the verdict. Langford v. Commonwealth, 154 Va. 879 , 153 S.E. 821 , 1930 Va. LEXIS 252 (1930); Ramey v. Ramey, 181 Va. 377 , 25 S.E.2d 264, 1943 Va. LEXIS 190 (1943).

    Rule applies when defendant demurs to plaintiff’s evidence. —

    While the court might be compelled to accept evidence given by the plaintiff on a demurrer to the evidence by the defendant, yet, under this section and § 8.01-430 , such evidence need not be accepted, when to do so would strain the credulity of the court, and require the entry of a judgment contradicted by every other fact and circumstance of the case. It was extreme cases of this sort that this section was enacted to meet. Tabb v. Willis, 155 Va. 836 , 156 S.E. 556 , 1931 Va. LEXIS 272 (1931).

    C.Verdict Approved or Disapproved.

    A distinction must be made between a verdict approved by the trial court and a verdict disapproved by that court. When the verdict has been approved it is the duty of the Supreme Court to uphold it save in exceptional cases and when it appears to be plainly necessary to prevent injustice. The appellate court cannot undertake to interfere merely because, in its judgment, the jury ought to have reached a different conclusion. Tabb v. Willis, 155 Va. 836 , 156 S.E. 556 , 1931 Va. LEXIS 272 (1931).

    Effect when trial court approves verdict. —

    Under this section where the question of fact involved is complicated by peculiar conditions, as well as by conflicting evidence, and the trial court has refused to set aside the verdict, the Supreme Court must affirm the judgment of the trial court, except when the judgment is plainly wrong or without evidence to support it. Eastern Coal & Export Corp. v. Norfolk & W. Ry., 133 Va. 525 , 113 S.E. 857 , 1922 Va. LEXIS 114 (1922).

    While the verdict of a jury, approved by the trial court, is entitled to great weight, the language of the revisers in this section, “unless it appears from the evidence that such judgment is plainly wrong,” should not be held to be meaningless. Tabb v. Willis, 155 Va. 836 , 156 S.E. 556 , 1931 Va. LEXIS 272 (1931).

    The Supreme Court having under this section carefully considered all of the evidence in the case, and upon giving the weight to the decision of the jury upon the matters of fact dependent upon the evidence which was conflicting, and which involved the credibility of the witnesses, and upon giving due weight to the action of the trial judge in refusing to set aside the verdict, was of opinion that it did not appear from the evidence that the judgment under review was plainly wrong, or without evidence to support it, and hence the judgment was affirmed. Graham v. Commonwealth, 127 Va. 808 , 103 S.E. 565 , 1920 Va. LEXIS 88 (1920).

    Where a conflict of evidence has been passed upon by a jury, whose findings have been approved by the trial court, the judgment will not be disturbed on appeal. Alsop Motor Corp. v. Barker, 138 Va. 598 , 123 S.E. 350 , 1924 Va. LEXIS 50 (1924); Holloman v. Commonwealth, 138 Va. 758 , 120 S.E. 852 , 1924 Va. LEXIS 67 (1924); Kilgore v. Commonwealth, 139 Va. 581 , 123 S.E. 534 , 1924 Va. LEXIS 133 (1924).

    A verdict of a jury, approved by the trial judge, brings the case to the Supreme Court practically as upon a demurrer to the evidence, and plaintiff’s evidence and all fair inferences which may be drawn therefrom must be accepted as true and evidence in conflict therewith is waived. McDowell v. Dye, 193 Va. 390 , 69 S.E.2d 459, 1952 Va. LEXIS 147 (1952).

    Verdicts approved by the trial court are entitled to more weight than if they had been set aside by that court. Unless it appears from the evidence that such a judgment is plainly wrong or without evidence to support it, the judgment of the trial court shall not be vacated. Richardson v. Lovvorn, 199 Va. 688 , 101 S.E.2d 511, 1958 Va. LEXIS 113 (1958).

    A verdict which has been disapproved by the trial judge is not entitled to the same weight on appeal as one that has been approved by him. Maurer v. City of Norfolk, 147 Va. 900 , 133 S.E. 484 , 1926 Va. LEXIS 292 (1926); Clark v. Parker, 161 Va. 480 , 171 S.E. 600 , 1933 Va. LEXIS 338 (1933).

    Distinction between order granting and order denying new trial. —

    In setting aside a verdict the trial court must to some extent, pass upon the weight of the evidence before the jury, and a stronger case must be made in order to justify an appellate court in disturbing an order granting a new trial than one refusing it, because the refusal operates as a final adjudication of the rights of the parties while the granting of the new trial simply invites further investigation, and affords an opportunity for showing the truth without concluding either party. Chapman v. Virginia Real Estate Inv. Co., 96 Va. 177 , 31 S.E. 74 (1898), cited in Davis v. McCall, 133 Va. 487 , 113 S.E. 835 (1922).

    New trial not to be granted merely because court differs with decision of jury. —

    Where the evidence consists of circumstances and presumptions, a new trial will not be granted merely because the court, if upon the jury, would have given a different verdict. To warrant a new trial in such cases the evidence should be plainly insufficient to warrant the finding of the jury. This restriction applies a fortiori to an appellate court. For in the appellate court there is superadded to the weight which must be given to the verdict of a jury fairly rendered, that of the opinion of the judge who presided at the trial, which is always entitled to peculiar respect upon the question of a new trial. Kimball v. Friend, 95 Va. 125 , 27 S.E. 901 , 1897 Va. LEXIS 19 (1897); Southern Ry. v. Bryant, 95 Va. 212 , 28 S.E. 183 , 1897 Va. LEXIS 28 (1897); Davis v. Commonwealth, 132 Va. 525 , 110 S.E. 252 , 1922 Va. LEXIS 47 (1922).

    D.Weight Given Decision of Court.

    Supreme Court must give to the judgment of the lower court the weight to which it is entitled. Royal Indem. Co. v. Hook, 155 Va. 956 , 157 S.E. 414 , 1931 Va. LEXIS 278 (1931).

    Judgment of a trial court on questions of fact is entitled to great weight and will not be disturbed unless it is plainly wrong or without evidence to support it. Smith v. Board of Supvrs., 201 Va. 87 , 109 S.E.2d 501, 1959 Va. LEXIS 197 (1959); Furr v. Arnold, 202 Va. 684 , 119 S.E.2d 242, 1961 Va. LEXIS 164 (1961).

    Same weight given to decision of court as if it were a verdict of a jury. —

    When a case at law is decided by the court, without the intervention of a jury, and the judgment is excepted to because contrary to the evidence and the evidence, and not the facts, is certified, the rule of decision in the appellate court is to give the judgment of the trial court the same effect as the verdict of a jury. The judgment will not be disturbed, unless it is contrary to the evidence, or the evidence is plainly insufficient to support it. If the evidence is conflicting on material points the judgment will be affirmed. Martin v. Richmond F. & P.R.R., 101 Va. 406 , 44 S.E. 695 , 1903 Va. LEXIS 46 (1903); Bristol Belt Line Ry. v. Bullock Elec. Mfg. Co., 101 Va. 652 , 44 S.E. 892 , 1903 Va. LEXIS 70 (1903); Hamman v. Miller, 116 Va. 873 , 83 S.E. 382 , 1914 Va. LEXIS 101 (1914); First Nat'l Bank v. Roanoke Oil Co., 169 Va. 99 , 192 S.E. 764 , 1937 Va. LEXIS 159 (1937).

    Where the conclusion depends on the weight to be given credible testimony, the decree based thereon has the same effect as the verdict of a jury, and the decree will be affirmed, although there may be a conflict in the evidence. Trayer v. Bristol Parking, Inc., 198 Va. 595 , 95 S.E.2d 224, 1956 Va. LEXIS 246 (1956); Pond v. Fisher, 201 Va. 542 , 112 S.E.2d 147, 1960 Va. LEXIS 127 (1960).

    The finding of facts by the trial judge has the weight of a jury verdict. McClung v. Henrico County, 200 Va. 870 , 108 S.E.2d 513, 1959 Va. LEXIS 180 (1959).

    Where the conclusion depends upon the weight to be given credible evidence, the decree or order of the trial court based thereon has the same effect as the verdict of a jury and will be affirmed although there may be conflicts in the evidence. Smith v. Board of Supvrs., 201 Va. 87 , 109 S.E.2d 501, 1959 Va. LEXIS 197 (1959).

    Where the trial court heard the evidence ore tenus, its finding on questions of fact carries the same weight as that of a jury, and consequently all conflicts in the evidence should be resolved in favor of the prevailing party in the court below. Hawthorne v. Hannowell, 202 Va. 70 , 115 S.E.2d 889, 1960 Va. LEXIS 192 (1960).

    When a case at law is decided by the court without the intervention of a jury, and the judgment is excepted to on the ground that it is not supported by the evidence, on review to the Supreme Court, the judgment of the trial court is presumed to be correct, even though the evidence is in sharp conflict, and it is to be given the same effect as the verdict of a jury settling all conflicts in the evidence. Reiber v. James M. Duncan, Jr. & Assocs., 206 Va. 657 , 145 S.E.2d 157, 1965 Va. LEXIS 247 (1965).

    A trial court’s finding will not be set aside unless it is plainly wrong or without evidence to support it. Such a finding is presumed to be correct and is given the same effect as a jury verdict, settling all conflicts in the evidence in favor of the prevailing party. Under these well-established rules, the prevailing parties in the trial court are entitled to have the evidence viewed in the light most favorable to them. City of Richmond v. Beltway Properties, Inc., 217 Va. 376 , 228 S.E.2d 569, 1976 Va. LEXIS 291 (1976).

    Findings of trial judge are conclusive on conflicting evidence. Smith-Gordon Co. v. Snellings, 130 Va. 528 , 107 S.E. 651 , 1921 Va. LEXIS 171 (1921).

    Under this section, when a case is tried by the judge without a jury, and conflicts arise in the testimony, or inferences to be drawn therefrom, the judgment of the trial court should not be set aside, unless it appears from the evidence that it is plainly wrong, or without evidence to support it. Citizens & Marine Bank v. McMurran, 138 Va. 657 , 123 S.E. 507 , 1924 Va. LEXIS 56 (1924); Eastern Shore of Va. Produce v. Belote, 138 Va. 707 , 123 S.E. 372 , 1924 Va. LEXIS 61 (1924); Duncan v. State Hwy. Comm'n, 142 Va. 135 , 128 S.E. 546 , 1925 Va. LEXIS 324 (1925).

    Where the question presented was a factual one which the trial judge decided adversely to the defendant on conflicting evidence, his findings will not be disturbed by the Supreme Court. Reiber v. James M. Duncan, Jr. & Assocs., 206 Va. 657 , 145 S.E.2d 157, 1965 Va. LEXIS 247 (1965).

    But finding that is plainly wrong cannot stand. —

    While great weight attaches to the finding of the trial court, based on an oral hearing of the testimony, yet if it is plainly wrong or without evidence to support it, it cannot stand. Parker v. Harcum, 201 Va. 441 , 111 S.E.2d 449, 1959 Va. LEXIS 247 (1959).

    Findings of chancellor in equity. —

    Under the established rule in Virginia, a finding of the chancellor on conflicting evidence, heard ore tenus, will not be disturbed on appeal unless it is against the clear preponderance of the evidence or without evidence to support it. Flippo v. Broome, 202 Va. 919 , 121 S.E.2d 490, 1961 Va. LEXIS 198 (1961).

    Great weight must be given to the judgment of a chancellor who has heard the evidence in open court, and his finding will not be set aside unless it be clearly shown to be erroneous. Barnes v. Craig, 202 Va. 229 , 117 S.E.2d 63, 1960 Va. LEXIS 211 (1960); Oliver v. Oliver, 202 Va. 268 , 117 S.E.2d 59, 1960 Va. LEXIS 217 (1960).

    A finding of fact by the chancellor hearing evidence ore tenus carries the weight of a jury verdict, and cannot be disturbed by the Supreme Court unless plainly wrong or without evidence to support it. White v. Perkins, 213 Va. 129 , 189 S.E.2d 315, 1972 Va. LEXIS 318 (1972).

    The question presented is not whether the evidence would have supported a contrary finding and decree, but whether the record contains substantial credible evidence which, upon application of correct principles of law, supports the finding and decree of the court. Todd v. Todd, 202 Va. 133 , 115 S.E.2d 905, 1960 Va. LEXIS 200 (1960), vacated, op. withdrawn, 117 S.E.2d 679 (Va. 1961).

    Effect of submission by consent. —

    When a case is submitted by consent without the intervention of a jury, on appeal the appellate court has no authority under this section to interfere with the judgment of the court below unless it appears from the evidence to be plainly wrong, or without evidence to support it. It cannot undertake to discuss conflicts in testimony or the impeachment of witnesses. But this does not mean that in such a case every conflict is settled by the judgment of the trial court, for it does not come to the appellate court as on a demurrer to the evidence. Royal Indem. Co. v. Hook, 155 Va. 956 , 157 S.E. 414 , 1931 Va. LEXIS 278 (1931).

    Where all evidence having probative value consists of letters and documents. —

    The rule that the conclusion of a trial judge after ore tenus hearing on questions of fact is entitled to great weight is of less effect where all evidence having probative value consists of letters and documents. Raney v. Barnes Lumber Corp., 195 Va. 956 , 81 S.E.2d 578, 1954 Va. LEXIS 173 (1954).

    CIRCUIT COURT OPINIONS

    Damage award shocks court’s conscience. —

    Where a jury’s compensatory and punitive damage awards shocked the court’s conscience and punitive damages against the Commonwealth were awarded without any supporting instructions of law or request, the verdict was set aside and a mistrial was declared. Asbury v. Commonwealth, 62 Va. Cir. 316, 2003 Va. Cir. LEXIS 283 (Richmond July 17, 2003).

    Scope of review. —

    Court had no authority to review decisions of a hearing officer that involved the sufficiency of the evidence pursuant to subsection B of § 2.2-3006, based on the plain wording therein and the explicit references to evidentiary support contained in §§ 8.01-680 , 2.2-4027, and 60.2-625 , with respect to the hearing officer’s reversal of a university’s termination of a university police officer and the hearing officer’s award of attorney’s fees to the officer. Old Dominion Univ. v. Birkmeyer, 73 Va. Cir. 341, 2007 Va. Cir. LEXIS 131 (Norfolk May 25, 2007).

    Motion to set aside the verdict denied. —

    Defendant’s motion to set aside the verdict was denied because defendant was provided proper notice of his charges, which was consistent with his due process rights; defendant was charged with using a firearm in the commission of murder, and he was found guilty of that crime by the jury. Commonwealth v. McKinney, 92 Va. Cir. 266, 2015 Va. Cir. LEXIS 187 (Norfolk Dec. 23, 2015).

    Defendant’s motion to set aside the verdict was denied because the firearm jury instruction was consistent with the firearm verdict form; the instruction correctly stated the two elements of the crime for which defendant was indicted. Commonwealth v. McKinney, 92 Va. Cir. 266, 2015 Va. Cir. LEXIS 187 (Norfolk Dec. 23, 2015).

    Defendant’s motion to set aside the verdict was denied because defendant was not convicted of using a firearm in the commission of any felony, which was not recognized as a crime by the Code of Virginia, but rather, he was convicted of using a firearm while committing murder, which was recognized. Commonwealth v. McKinney, 92 Va. Cir. 266, 2015 Va. Cir. LEXIS 187 (Norfolk Dec. 23, 2015).

    § 8.01-681. Decision of appellate court.

    The appellate court shall affirm the judgment if there is no error therein, and reverse the same, in whole or in part, if erroneous, and enter such judgment as to the court shall seem right and proper and shall render final judgment upon the merits whenever, in the opinion of the court, the facts before it are such as to enable the court to attain the ends of justice. A civil case shall not be remanded for a trial de novo except when the ends of justice require it, but the appellate court shall, in the order remanding the case, if it be remanded, designate upon what questions or points a new trial is to be had.

    History. Code 1950, § 8-493; 1977, c. 617; 1984, c. 703.

    Cross references.

    As to constitutional provisions concerning opinions, decisions and judgments of Supreme Court of Appeals, see Va. Const., Art. VI, §§ 1 and 6.

    As to decision of appellate court where judgment or decree is amended pending the appeal, see § 8.01-429 .

    As to decision of appellate court in criminal proceedings, see § 19.2-324 .

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, §§ 311, 313, 316, 323, 328, 329, 330, 331, 338.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.
    A.General Consideration.

    The Supreme Court is required by this section to render final judgment upon the merits where the facts before the court are such as to enable the court to “attain the ends of justice.” In addition, this section admonishes this court not to remand for a trial de novo except where the ends of justice require it. Powell v. Sears, Roebuck & Co., 231 Va. 464 , 344 S.E.2d 916, 1986 Va. LEXIS 215 (1986).

    When Court of Appeals should render final judgment on merits in reversing case. —

    Where the error requires reversal, it does not follow that the Court of Appeals must remand the case in order for further litigation. This section requires the Court of Appeals when reversing a case on appeal, to render final judgment upon the merits whenever, in the opinion of the court, the facts before it are such as to enable the court to attain the ends of justice. Smith v. Board of Supvrs., 234 Va. 250 , 361 S.E.2d 351, 4 Va. Law Rep. 858, 1987 Va. LEXIS 235 (1987).

    Modification of damages where evidence did not support amount awarded. —

    The amount of damages supported by the evidence was well below the amount of the verdict returned by the jury and was attributable to another count, under which there was a failure of proof. Therefore, the court modified the judgment to reflect the amount of damages supported by the evidence advanced under count II. Lee Bldrs. Supply Corp. v. Cohen, 229 Va. 621 , 331 S.E.2d 803, 1985 Va. LEXIS 240 (1985).

    Where trial court has decided a case correctly, but has assigned the wrong reason, the Supreme Court will assign the correct reason and affirm. State Farm Mut. Auto. Ins. Co. v. Seay, 236 Va. 275 , 373 S.E.2d 910, 5 Va. Law Rep. 876, 1988 Va. LEXIS 161 (1988); Virginia Farm Bureau Mut. Ins. Co. v. Jerrell, 236 Va. 261 , 373 S.E.2d 913, 5 Va. Law Rep. 857, 1988 Va. LEXIS 154 (1988).

    B.Remand.

    Determining damages. —

    Where decree was required to be reversed for failure to award a judgment for proved damages, but the facts before the Supreme Court did not enable the court to enter a final decree that would “attain the ends of justice,” the cause was remanded to the trial court for a new trial limited to the issue of damages, and with directions to order an issue out of chancery and impanel a jury to determine the question of damages. Sampson v. Sampson, 221 Va. 896 , 275 S.E.2d 597, 1981 Va. LEXIS 225 (1981).

    II.Decisions Under Prior Law.
    A.General Consideration.

    Editor’s note.

    The policy and purpose of § 8.01-430 and this section is a speedy determination of litigation, and the rendition of a final judgment where it is clear that, upon the facts before it, the court can by such order attain the ends of justice. Morris & Co. v. Alvis, 130 Va. 434 , 107 S.E. 664 , 1921 Va. LEXIS 164 (1921); Gable v. Bingler, 177 Va. 641 , 15 S.E.2d 33, 1941 Va. LEXIS 249 (1941).

    Not applicable to criminal cases. —

    Section 8.01-430 , with reference to the order to be entered by a trial court upon setting aside a verdict, and this section in reference to the order of reversal to be entered in the Supreme Court, do not apply to criminal cases. As to such cases the practice remains unchanged and is controlled by § 19.2-324 . Henderson v. Commonwealth, 130 Va. 761 , 107 S.E. 700 , 1921 Va. LEXIS 192 (1921).

    This section and § 8.01-678 are closely related. Kearns v. Hall, 197 Va. 736 , 91 S.E.2d 648, 1956 Va. LEXIS 147 (1956).

    This section relates entirely to appellate procedure in the Supreme Court. It does not confer any original jurisdiction upon the court, and none was exercised by the court in the instant case. Its enactment was clearly within the legislative power. Duncan v. Carson, 127 Va. 306 , 103 S.E. 665 , 1920 Va. LEXIS 52 (1920).

    This relates to procedure in the appellate court, and does not confer original jurisdiction on the court in violation of Va. Const., Art. VI, § 1. Duncan v. Carson, 127 Va. 306 , 103 S.E. 665 , 1920 Va. LEXIS 52 (1920); Harriss, Magill & Co. v. Rodgers & Co., 143 Va. 815 , 129 S.E. 513 , 1925 Va. LEXIS 307 (1925).

    It requires the appellate court to pass upon the weight of the evidence in appropriate cases, in order to attain the ends of justice. Lough v. Price, 161 Va. 811 , 172 S.E. 269 , 1934 Va. LEXIS 305 (1934).

    The Supreme Court does not consider the evidence as on demurrer. On the other hand, the Supreme Court should not undertake to pass upon matters which clearly and properly fall within the province of the jury. Where it is plain that the ends of justice can be attained, however, the Supreme Court should act. In such a case the court should render final judgment upon the merits. Metropolitan Life Ins. Co. v. Hart, 162 Va. 88 , 173 S.E. 769 , 1934 Va. LEXIS 236 (1934).

    The section does not authorize the appellate court to make a case different from the plaintiff’s pleadings, and then try and decide the same upon an issue never suggested or considered by the trial court and jury. Harriss, Magill & Co. v. Rodgers & Co., 143 Va. 815 , 129 S.E. 513 , 1925 Va. LEXIS 307 (1925).

    How case to be stated. —

    Formerly a plaintiff in error stood in the Supreme Court in the position of a demurrant to the evidence, but this has been changed. Now, under this section, in stating a case in that court which has been tried by a jury, it must be stated as the jury may have viewed it, remembering always that the jury are the sole judges of the weight to be given to the testimony of the witnesses, and also bearing in mind the weight attached to the verdict of a jury which has received the approval of the trial judge. Lorillard Co. v. Clay, 127 Va. 734 , 104 S.E. 384 , 1920 Va. LEXIS 82 (1920); Queen Ins. Co. v. Perkinson, 129 Va. 216 , 105 S.E. 580 , 1921 Va. LEXIS 88 (1921).

    Cause remanded by United States Supreme Court for return to lower court. —

    The Supreme Court of the United States vacated the decree of the court of appeals which affirmed a decision of a lower court annulling a miscegenetic marriage, and remanded the cause for return to the lower court so that the record might be made to show more fully the relationship of the parties to Virginia at the time of the marriage. The court of appeals, being without power under the statutes or rules of practice of Virginia to return the cause to the lower court for the purpose directed, and being of opinion that the record was adequate for decision of the issues presented, adhered to its prior decision. Naim v. Naim, 197 Va. 734 , 90 S.E.2d 849, 1956 Va. LEXIS 146 (1956).

    Attorney’s fee allowed. —

    Under this provision, the Supreme Court has, in cases where it was not necessary to remand the case for the trial court to determine any other issue, allowed counsel an attorney’s fee for appearance in the Supreme Court. Hughes v. Hughes, 173 Va. 293 , 4 S.E.2d 402, 1939 Va. LEXIS 195 (1939).

    Counsel is entitled to compensation to be paid by the husband for his appearance both in the trial court, and in the Supreme Court. Hughes v. Hughes, 173 Va. 293 , 4 S.E.2d 402, 1939 Va. LEXIS 195 (1939).

    B.Affirmance.
    1.In General.

    When is judgment “affirmed”. —

    A judgment is “affirmed” within a supersedeas bond conditioned to satisfy it in such event to the extent that it remains unchanged by an amended judgment on appeal, authorized by this section. National Sur. Co. v. Commonwealth, 125 Va. 223 , 99 S.E. 657 , 1919 Va. LEXIS 18, cert. denied, 250 U.S. 665, 40 S. Ct. 13, 63 L. Ed. 1197, 1919 U.S. LEXIS 1904 (1919).

    Affirmance by equal division of court. —

    The affirmance of the judgment of a trial court by an equal division of the judges of this court results from necessity, and independently of statute. The former statute in this State on that subject was simply declaratory of a well settled pre-existing rule of necessity which is not changed by the omission from the present statute of anything on the subject. Charlottesville & A. Ry. v. Rubin, 107 Va. 751 , 60 S.E. 101 , 1908 Va. LEXIS 135 (1908).

    For example of affirmation of lower court decision, when judges of Supreme Court divide equally on question, see Kimball v. Borden, 97 Va. 477 , 34 S.E. 45 , 1899 Va. LEXIS 63 (1899).

    Amending and affirming judgment. —

    Where in an action for personal injuries the jury were told to disregard a release executed by the plaintiff when a minor, the Supreme Court will not remand the case when they do not believe that the interests of justice require it, but render final judgment upon the merits, crediting the judgment of the lower court with the amount received by the plaintiff by way of compromise, and affirming the judgment thus amended. Clinchfield Coal Corp. v. Couch, 127 Va. 634 , 104 S.E. 802 , 1920 Va. LEXIS 75 (1920).

    Affirmance on condition. —

    Where the lower court erred in peremptorily directing the jury to allow interest to plaintiff from the time the demand accrued where under § 8.01-382 the allowance of such interest was discretionary with the jury, the appellate court may affirm the judgment on condition that plaintiff relinquish the interest upon the principal sum found by the jury. Washington & Old Dominion Ry. v. Westinghouse Elec. & Mfg. Co., 120 Va. 620 , 89 S.E. 131 , 91 S.E. 646 , 1916 Va. LEXIS 168 (1916).

    2.Sufficient Evidence to Support Verdict or Findings.

    Rule stated. —

    A verdict must stand “unless there is a plain deviation from the evidence or it is palpable the jury have not drawn a correct inference from these facts as certified.” Nothing in this section affects this rule. Filer v. McNair, 158 Va. 88 , 163 S.E. 335 , 1932 Va. LEXIS 242 (1932).

    Where a case has been fairly submitted to a jury, their verdict will not be disturbed where there is evidence sufficient to support the verdict. Virginia Ry. & Power Co. v. Meyer, 117 Va. 409 , 84 S.E. 742 , 1915 Va. LEXIS 49 (1915); McClung v. Folkes, 122 Va. 48 , 94 S.E. 156 , 1917 Va. LEXIS 83 (1917); Webb v. Commonwealth, 122 Va. 899 , 94 S.E. 773 , 1918 Va. LEXIS 145 (1918).

    When there has been a trial upon the merits of the case, conducted by able and astute counsel, and upon adequate proof the jury have found a verdict in favor of the plaintiff, the case of plaintiff falls within the beneficent provisions of this section. City of Richmond v. Best, 180 Va. 429 , 23 S.E.2d 224, 1942 Va. LEXIS 184 (1942).

    The decree of the lower court is entitled to great weight upon appeal and ought not to be reversed unless the appellate court is satisfied that it is wrong. Wood v. Lester, 126 Va. 169 , 101 S.E. 52 , 1919 Va. LEXIS 84 (1919).

    3.Where Evidence Conflicting.

    Verdict not disturbed unless plainly wrong or against weight of evidence. —

    Where the evidence in the trial court was conflicting, a verdict fairly rendered, under proper instructions of the court, will not be disturbed in appellate court unless plainly wrong or manifestly against the weight of the evidence. Truckers' Mfg. & Supply Co. v. White, 108 Va. 147 , 60 S.E. 630 , 1908 Va. LEXIS 21 (1908); Osborne v. Gillenwaters, 128 Va. 21 , 104 S.E. 578 , 1920 Va. LEXIS 90 (1920); Tucker Sanatorium v. Cohen, 129 Va. 576 , 106 S.E. 355 , 1921 Va. LEXIS 118 (1921).

    4.Partial Affirmance.

    The statute in terms authorizes a partial reversal and the entry by the appellate court of a judgment, the effect of which must be to affirm in part and reverse in part the original judgment. It must follow that to the extent to which the judgment is affirmed, it is still valid and binding upon the original judgment debtor, and also upon the sureties in the supersedeas bond, who will be held to have entered into their contract with knowledge that their liability under it was to be controlled by the provisions of this section. National Sur. Co. v. Commonwealth, 125 Va. 223 , 99 S.E. 657 , 1919 Va. LEXIS 18, cert. denied, 250 U.S. 665, 40 S. Ct. 13, 63 L. Ed. 1197, 1919 U.S. LEXIS 1904 (1919).

    When finding on part of action conclusive. —

    In an action of assumpsit by purchasers against seller for breach of contract, the evidence on the subject of fraud in the procurement of the contract being conflicting, the finding of the jury on that subject is final and conclusive on appeal, and, even if the case had to be reversed on other grounds, this finding would not be disturbed under the provisions of this section. Upton v. Holloway & Co., 126 Va. 657 , 102 S.E. 54 , 1920 Va. LEXIS 17 (1920).

    Effect as to liens. —

    A decree was held against an administrator and his sureties. On appeal by plaintiffs the decree was reversed, and the administrator was held liable for a larger amount than was decreed against him, though the decree was also reversed in favor of a purchaser of land from the administrator. The appellate court reversed the decree so far as it was erroneous, but it affirmed it so as to continue the lien of the decree for the security pro tanto of the amounts which were found due by the parties respectively, against whom the said decree was rendered. Moss v. Moorman, 65 Va. (24 Gratt.) 97, 1873 Va. LEXIS 6 (1873).

    Where a decree is reversed in part, and affirmed as to the residue, such reversal does not destroy the lien of so much of the decree as is affirmed. Moss v. Moorman, 65 Va. (24 Gratt.) 97, 1873 Va. LEXIS 6 (1873); Shepherd v. Chapman, 83 Va. 215 , 2 S.E. 273 , 1887 Va. LEXIS 54 (1887).

    C.Reversal.
    1.In General.

    When conclusively shown that appellee not entitled to recover. —

    Where in an action by a shipper against a carrier it was conclusively shown that the carrier did not receive the goods, the Supreme Court will not remand the cause for a new trial, but will reverse a judgment for plaintiff pursuant to this section. Director-General v. Chandler, 129 Va. 418 , 106 S.E. 226 , 1921 Va. LEXIS 105 (1921).

    Conflict in instructions. —

    Where there is an irreconcilable conflict in the instructions, the judgment must be reversed. Director-General v. Chandler, 129 Va. 418 , 106 S.E. 226 , 1921 Va. LEXIS 105 (1921).

    Court must find that error is reversible. —

    The Supreme Court must find, under § 8.01-678 , that the error complained of is reversible error before it may reverse the judgment under this section as erroneous; for otherwise there is no error in the judgment, and the same must be affirmed. Kearns v. Hall, 197 Va. 736 , 91 S.E.2d 648, 1956 Va. LEXIS 147 (1956).

    2.Entry of Such Judgment as to the Court Shall Seem Right and Proper.
    a.Final Judgment.

    Where there is no new or different evidence. —

    Where there is no reason to believe that, upon another trial, any new or different evidence would be introduced which ought to affect the result, and the facts before the Supreme Court are such as to enable the court to attain the ends of justice, it should proceed to dispose of the case under this section and enter final judgment upon the merits. Fourth Nat'l Bank v. Bragg, 127 Va. 47 , 102 S.E. 649 , 1920 Va. LEXIS 31 (1920); Duncan v. Carson, 127 Va. 306 , 103 S.E. 665 , 1920 Va. LEXIS 52 (1920); Queen Ins. Co. v. Perkinson, 129 Va. 216 , 105 S.E. 580 , 1921 Va. LEXIS 88 (1921); Atlantic C.L.R.R. v. A.M. Walkup Co., 132 Va. 386 , 112 S.E. 663 , 1922 Va. LEXIS 33 (1922); Crews v. Sullivan, 133 Va. 478 , 113 S.E. 865 , 1922 Va. LEXIS 111 (1922); Blenner v. Vim Motor Truck Co., 136 Va. 189 , 117 S.E. 834 , 1923 Va. LEXIS 78 (1923) (see also Atlantic Life Ins. Co. v. Worley, 161 Va. 951 , 172 S.E. 168 (1934)).

    Before entering final judgment, it should be reasonably apparent that the case has been fully developed in the trial court or, at least, that the parties had a fair opportunity of so developing the case, and the Supreme Court must be of the opinion that, upon the facts before it, the parties have had a fair trial on the merits of the case, and that substantial justice has been reached. Kearns v. Hall, 197 Va. 736 , 91 S.E.2d 648, 1956 Va. LEXIS 147 (1956).

    Where there is no reason to believe that upon another trial any new or additional evidence of any weight will, or can, be introduced, it becomes the duty of the Supreme Court, under the provisions of this section to enter final judgment. Butler v. Parrocha, 186 Va. 426 , 43 S.E.2d 1, 1947 Va. LEXIS 168 (1947).

    Even where the trial court would have been warranted in sustaining a motion to strike out all the evidence of the plaintiff made at the conclusion of his evidence in chief, it does not follow that a judgment for the plaintiff will be reversed, if the court overrules the motion. If the cause is thereafter proceeded with to what appears to be a fair development of the evidence for both parties, and upon a consideration of the whole evidence the verdict of the jury in favor of the plaintiff is plainly right, the Supreme Court will not reverse a judgment for the plaintiff and order a new trial. Rawle v. McIlhenny, 163 Va. 735 , 177 S.E. 214 , 1934 Va. LEXIS 213 (1934).

    Correction of decree erroneous in part. —

    In the instant case, a suit to enjoin the threatened sale by the lessors in a mining lease of the surface and minerals to various persons, the decree of the lower court was in part erroneous, and therefore the Supreme Court reversed the decree and rendered a decree correcting such erroneous part under this section. Hagan Co. v. Norton Coal Co., 137 Va. 140 , 119 S.E. 153 , 1923 Va. LEXIS 143 (1923).

    Amount of judgment. —

    Where the facts enabled the Supreme Court to attain the ends of justice it was their duty, under this section, to set aside the verdict of the jury, and the judgment thereon, as to the amount awarded the plaintiff, and enter final judgment for him for the full amount claimed. Glascock v. James, 183 Va. 561 , 32 S.E.2d 734, 1945 Va. LEXIS 203 (1945).

    Where the amount of the judgment entered for plaintiff in lower court, if there can be a recovery at all, is not in dispute, then under authority of this section judgment must be entered for him in said sum. White v. Bott, 158 Va. 442 , 158 S.E. 880 , 1931 Va. LEXIS 295 (1931).

    When Supreme Court will reduce amount of damages. —

    In an action for personal injuries the Supreme Court having determined that no error was committed in fixing liability upon defendant for plaintiff’s injury, but that the verdict was excessive, if the case were remanded to the trial court it would be solely for the purpose of assessing the damages. But when the Supreme Court is in as good condition to do that as a jury would be, the remand is unnecessary. Lorillard Co. v. Clay, 127 Va. 734 , 104 S.E. 384 , 1920 Va. LEXIS 82 (1920).

    When wrong measure as to damages adopted. —

    A broker’s contract of employment definitely fixed his compensation at $2,000 in case of a sale. The jury found a verdict for the broker and fixed his damages at $1,000. The finding was based upon the theory that plaintiff had complied with his contract, and had produced to the defendant a purchaser ready, able, and willing to purchase. It was held that as the contract definitely fixed the measure of the plaintiff’s recovery, and there was nothing speculative or uncertain about it, the jury had no right to set up their judgment as to what was fair compensation, against the express terms of the contract, and that under this section, the Supreme Court would set aside the verdict as to the amount of the damages, and enter final judgment for the plaintiff for $2,000. Wilson v. Brown, 136 Va. 634 , 118 S.E. 88 , 1923 Va. LEXIS 110 (1923).

    Final judgment when case decided on agreed facts. —

    Where the judgment of the trial court is set aside because the law applicable to the “facts agreed” was in favor of the plaintiff in error, the Supreme Court will render final judgment in favor of the plaintiff in error in pursuance of this section. North Shore Imp. Co. v. N.Y.P. & N.R.R., 130 Va. 464 , 108 S.E. 11 , 1921 Va. LEXIS 166 (1921).

    Where case heard by court without jury. —

    Where a case is heard by the trial court, without the intervention of a jury, the Supreme Court, on reversing the judgment of the trial court, will enter up judgment for the adverse party. United Moderns v. Rathbun, 104 Va. 736 , 52 S.E. 552 , 1906 Va. LEXIS 140 (1906); City of Danville v. Danville Ry. & Elec. Co., 114 Va. 382 , 76 S.E. 913 , 1913 Va. LEXIS 95 (1913).

    Where verdict and judgment for plaintiff not reversed, though motion to strike sustained by trial court. —

    If, after the trial court sustains a motion to strike out all the evidence of the plaintiff, the cause is thereafter proceeded with what appears to be a fair development of the evidence for both parties, and upon a consideration of the whole evidence the verdict of the jury in favor of the plaintiff is plainly right, the Supreme Court will not reverse a judgment for the plaintiff and order a new trial. Jones v. Hanbury, 158 Va. 842 , 164 S.E. 545 , 1932 Va. LEXIS 300 (1932).

    The practice of partial new trial ought not to be followed unless it is clear that no injustice will result. Schuerholz v. Roach, 58 F.2d 32, 1932 U.S. App. LEXIS 4627 (4th Cir.), cert. denied, 287 U.S. 623, 53 S. Ct. 78, 77 L. Ed. 541, 1932 U.S. LEXIS 233 (1932).

    Must not violate § 8.01-672 . —

    Final judgment cannot be entered by Supreme Court, under this section, if to do so would violate § 8.01-672 as to jurisdictional amount. Madison v. Kroger Grocery & Bakery Co., 160 Va. 303 , 168 S.E. 353 , 1933 Va. LEXIS 210 (1933).

    When entry of judgment for defendant deemed proper. —

    When the evidence is examined, otherwise than on a demurrer to the evidence, and it is plain that a verdict of the jury predicated upon their finding was plainly wrong, judgment should be entered for defendant. Taylor v. Mason, 158 Va. 870 , 164 S.E. 652 , 1932 Va. LEXIS 302 (1932).

    Effect of failure to request final judgment. —

    While failure to request final judgment would not prevent the lower court or the appellate court from entering a final order in a proper case, it is perhaps a circumstance indicating that the merits of the case ought to finally be determined by a jury. Morris & Co. v. Alvis, 130 Va. 434 , 107 S.E. 664 , 1921 Va. LEXIS 164 (1921).

    Cases in which final judgment entered. —

    See National Bank v. Farmers Bank, 139 Va. 227 , 123 S.E. 522 , 1924 Va. LEXIS 98 (1924); Continental Trust Co. v. Witt, 139 Va. 458 , 124 S.E. 265 , 1924 Va. LEXIS 123 (1924); Dalby v. Shannon, 139 Va. 488 , 124 S.E. 186 , 1924 Va. LEXIS 125 (1924); Davis Bakery, Inc. v. Dozier, 139 Va. 628 , 124 S.E. 411 , 1924 Va. LEXIS 138 (1924); School Bd. v. Buford, 140 Va. 173 , 124 S.E. 286 , 1924 Va. LEXIS 163 (1924); Smith v. Commonwealth, 141 Va. 490 , 126 S.E. 236 , 1925 Va. LEXIS 426 (1925); Clover Creamery Co. v. Kanode, 142 Va. 542 , 129 S.E. 222 , 1925 Va. LEXIS 357 (1925); Town of Galax v. Waugh, 143 Va. 213 , 129 S.E. 504 , 1925 Va. LEXIS 261 (1925); Palmetto Fire Ins. Co. v. Fansler, 143 Va. 884 , 129 S.E. 727 , 1925 Va. LEXIS 311 (1925).

    b.Dismissal.

    Effect of motion to dismiss. —

    Where an action was brought by an administratrix against a railroad company and the director general of railroads, for the killing of her decedent by a train, while the system was being operated by the director general, the court should have entertained the motion of the railroad company to dismiss the action against it, yet under this section, this does not affect the liability of the director general. Norfolk & W. Ry. v. Arrington, 131 Va. 564 , 109 S.E. 303 , 1921 Va. LEXIS 46 (1921).

    When action barred by statute of limitations. —

    Where it was manifest from the evidence that the action was barred by the statute of limitations, the court set aside the verdict because the jury had not passed upon that issue, and being of opinion that the evidence did not support either of the counts in the declaration did not send the case back for a new trial in order to supply the deficiency in the verdict, but reversed the judgment in favor of the plaintiff and entered a nonsuit. Calvert v. Bowdoin, 8 Va. (4 Call) 217, 1791 Va. LEXIS 30 (1791); White & Co. v. Ryan, 131 Va. 619 , 109 S.E. 426 , 1921 Va. LEXIS 51 (1921).

    When dismissal as to one defendant. —

    Where the facts proved do not establish any liability upon one of the defendants, and the evidence was as full as the circumstances of the case admitted of, and as could be reasonably expected on another trial, and full opportunity was afforded the plaintiff to introduce evidence, the Supreme Court on reversal will, under this section, render judgment of dismissal as to that defendant. Virginia Iron, Coal & Coke Co. v. Odle, 128 Va. 280 , 105 S.E. 107 , 1920 Va. LEXIS 106 (1920).

    When lack of proof of negligence. —

    Under the former practice of the Supreme Court, the sufficiency of the evidence to sustain the verdict, where the case had to be reversed on other grounds, was not passed upon, but in view of this section, if there had been no proof at all of negligence on the part of the defendant in the instant case, it would have been the duty of the Supreme Court to enter a final judgment and dismiss the case. The court, therefore, had to go into the question of negligence far enough to show that it could not dismiss the case for insufficient evidence of negligence, but with the caution that nothing it said was to be used before the jury at another trial as indicating that it had expressed an opinion upon the weight of the evidence. Director Gen. of R.R.'s v. Pence's Adm'x, 135 Va. 329 , 116 S.E. 351 , 1923 Va. LEXIS 18 (1923).

    When action on illegal contract of carriage. —

    Under this section, if the facts before it are such as to enable the court to attain the ends of justice, when the Supreme Court reverses a judgment in favor of a plaintiff against a carrier on the ground that the contract of carriage was illegal, it will order that the case be dismissed. Norfolk & W. Ry. v. Dehart Distilling Co., 127 Va. 415 , 103 S.E. 594 , 1920 Va. LEXIS 60 (1920).

    b.Dismissal.

    Effect of motion to dismiss. —

    Where an action was brought by an administratrix against a railroad company and the director general of railroads, for the killing of her decedent by a train, while the system was being operated by the director general, the court should have entertained the motion of the railroad company to dismiss the action against it, yet under this section, this does not affect the liability of the director general. Norfolk & W. Ry. v. Arrington, 131 Va. 564 , 109 S.E. 303 , 1921 Va. LEXIS 46 (1921).

    When action barred by statute of limitations. —

    Where it was manifest from the evidence that the action was barred by the statute of limitations, the court set aside the verdict because the jury had not passed upon that issue, and being of opinion that the evidence did not support either of the counts in the declaration did not send the case back for a new trial in order to supply the deficiency in the verdict, but reversed the judgment in favor of the plaintiff and entered a nonsuit. Calvert v. Bowdoin, 8 Va. (4 Call) 217, 1791 Va. LEXIS 30 (1791); White & Co. v. Ryan, 131 Va. 619 , 109 S.E. 426 , 1921 Va. LEXIS 51 (1921).

    When dismissal as to one defendant. —

    Where the facts proved do not establish any liability upon one of the defendants, and the evidence was as full as the circumstances of the case admitted of, and as could be reasonably expected on another trial, and full opportunity was afforded the plaintiff to introduce evidence, the Supreme Court on reversal will, under this section, render judgment of dismissal as to that defendant. Virginia Iron, Coal & Coke Co. v. Odle, 128 Va. 280 , 105 S.E. 107 , 1920 Va. LEXIS 106 (1920).

    When lack of proof of negligence. —

    Under the former practice of the Supreme Court, the sufficiency of the evidence to sustain the verdict, where the case had to be reversed on other grounds, was not passed upon, but in view of this section, if there had been no proof at all of negligence on the part of the defendant in the instant case, it would have been the duty of the Supreme Court to enter a final judgment and dismiss the case. The court, therefore, had to go into the question of negligence far enough to show that it could not dismiss the case for insufficient evidence of negligence, but with the caution that nothing it said was to be used before the jury at another trial as indicating that it had expressed an opinion upon the weight of the evidence. Director Gen. of R.R.'s v. Pence's Adm'x, 135 Va. 329 , 116 S.E. 351 , 1923 Va. LEXIS 18 (1923).

    When action on illegal contract of carriage. —

    Under this section, if the facts before it are such as to enable the court to attain the ends of justice, when the Supreme Court reverses a judgment in favor of a plaintiff against a carrier on the ground that the contract of carriage was illegal, it will order that the case be dismissed. Norfolk & W. Ry. v. Dehart Distilling Co., 127 Va. 415 , 103 S.E. 594 , 1920 Va. LEXIS 60 (1920).

    3.Remand.
    a.In General.

    When facts are insufficient. —

    Where a case must be reversed, and the facts before the Supreme Court are not sufficient for it to dispose of the case under this section, the case will be remanded to the court below for a trial de novo, to be had if the defendant in error is so advised. Latham v. Powell, 127 Va. 382 , 103 S.E. 638 , 1920 Va. LEXIS 58 (1920).

    When final judgment cannot be rendered. —

    When, with the objectionable testimony admitted by the lower court stricken out, the case is not left in such condition that final judgment can be entered in the Supreme Court under the provisions of this section, it will be remanded for a new trial to be had in conformity with the opinion of the court. Gallion v. Winfree, 129 Va. 122 , 105 S.E. 539 , 1921 Va. LEXIS 81 (1921).

    When the record is such that the Supreme Court cannot, in justice, determine the judgment that should be finally rendered, the case should be remanded for further development. Kearns v. Hall, 197 Va. 736 , 91 S.E.2d 648, 1956 Va. LEXIS 147 (1956).

    When testimony obscure. —

    Where the testimony was obscure and was not developed with sufficient definiteness to enable the Supreme Court to feel satisfied that it would attain the ends of justice if it were to enter judgment under this section, the court awarded a new trial. Greer v. Doriot, 137 Va. 589 , 120 S.E. 291 , 1923 Va. LEXIS 182 (1923).

    When suit in equity and remedy is at law. —

    Under this section it is the duty of the Supreme Court to enter such judgment, decree or order as to the court shall seem right and proper. Therefore, when a complainant brings a suit in equity when his remedy is at law, the Supreme Court in reversing the decree will remand the cause to the lower court, with instructions to transfer the same to the law side for the appropriate amendment of pleadings and other proceedings in conformity with the provisions of § 8.01-270 , notwithstanding the case was disposed of in the lower court before § 8.01-270 became effective. Pence v. Tidewater Townsite Corp., 127 Va. 447 , 103 S.E. 694 , 1920 Va. LEXIS 63 (1920).

    But this section does not authorize the Supreme Court to change the decree of the lower court, except where such decree is reversed in whole or in part. Hence, the Supreme Court in affirming a decree dismissing a bill for lack of equitable jurisdiction cannot remand with direction to to transfer the case to the law side of the court. Ewing v. Dutrow, 128 Va. 416 , 104 S.E. 791 , 1920 Va. LEXIS 112 (1920).

    Case remanded upon sole question of whether required notice was given within reasonable time. —

    Judgment of the trial court was reversed, a verdict of the jury in plaintiff’s favor set aside and the case remanded, under the provisions of this section, for a new trial upon the sole question of whether the notice required by the insurance policy was given within a reasonable time from the date of the accident. Glenns Falls Indem. Co. v. Harris, 168 Va. 438 , 191 S.E. 644 , 1937 Va. LEXIS 241 (1937).

    Change of position. —

    The law of the case as fixed by the instructions of the trial court, to which there were no exceptions, being with the defendant, and the verdict for the plaintiff being without evidence to support it, the Supreme Court, in pursuance of this section, will enter such judgment as is warranted by the undisputed facts of the case. The case could not be remanded to enable the plaintiff to change her position with reference to the law. Queen Ins. Co. v. Perkinson, 129 Va. 216 , 105 S.E. 580 , 1921 Va. LEXIS 88 (1921).

    When party put on terms. —

    A party may be in effect put on terms in the appellate court as well as in the trial court. When a party is put on terms in appellate court because a judgment in his favor is excessive, it may reverse the judgment of the trial court and remand the cause, with direction to the trial court to put the successful party upon terms to release the excess, or else submit to a new trial, and if the release is made, to overrule the motion for a new trial, and render judgment for the correct amount with interest and costs. If the error be one of mere calculation, readily corrected from the record, or if the verdict and judgment of the trial court is excessive and the record affords plain and certain proof of the amount of the excess so that it may with safety be corrected, in either event the appellate court will amend and affirm the judgment of the trial court, and will not remand the case for such amendment. National Sur. Co. v. Commonwealth, 125 Va. 223 , 99 S.E. 657 , 1919 Va. LEXIS 18, cert. denied, 250 U.S. 665, 40 S. Ct. 13, 63 L. Ed. 1197, 1919 U.S. LEXIS 1904 (1919).

    b.Questions or Points on Which New Trial Is Had.

    Case remanded for retrial generally. —

    It was contended that the appellate court should direct that the amount of damages be not again submitted to the jury on the further trial of the case, but that the issue be confined to a finding upon the question of liability of the defendant. But the court, upon consideration of the entire record, was of the opinion that the ends of justice did not require that the court should do otherwise than remand the case generally for a trial de novo. Virginia-Tennessee Motor Truck Corp. v. Wilson, 140 Va. 260 , 124 S.E. 231 , 1924 Va. LEXIS 170 (1924); Green v. Ruffin, 141 Va. 628 , 125 S.E. 742 , 1924 Va. LEXIS 4 (1924).

    Remand for new trial on one cause of action only. —

    Where the evidence was insufficient to justify a finding for alleged negligent blasting but sufficient to find for alleged negligent construction of drainage facilities, the judgment was reversed, the verdict set aside, and a new trial ordered limited to the cause of action based on negligent construction and installation of the drainage facilities. B.G. Young & Sons v. Kirk, 202 Va. 176 , 116 S.E.2d 38, 1960 Va. LEXIS 203 (1960).

    To determine amount of damages. —

    A verdict for the plaintiff having determined the question of liability, the case was remanded for a new trial, but only upon the amount of damages the plaintiff was entitled to recover under authority of this section. Baker v. Carrington, 138 Va. 22 , 120 S.E. 856 , 1924 Va. LEXIS 7 (1924); Certified T.V. & Appliance Co. v. Harrington, 201 Va. 109 , 109 S.E.2d 126, 1959 Va. LEXIS 200 (1959).

    Where decree was required to be reversed for failure to award a judgment for proved damages, but the facts before the Supreme Court did not enable the court to enter a final decree that would “attain the ends of justice,” the cause was remanded to the trial court for a new trial limited to the issue of damages, and with directions to order an issue out of chancery and impanel a jury to determine the question of damages. Washington Golf & Country Club, Inc. v. Briggs & Brennan Developers, Inc., 198 Va. 586 , 95 S.E.2d 233, 1956 Va. LEXIS 245 (1956).

    Where liability had been admitted by defendant, but certain errors were committed in instructing the jury as to damages, the case was remanded for trial on the issue of damages only. Eubank v. Spencer, 203 Va. 923 , 128 S.E.2d 299, 1962 Va. LEXIS 238 (1962).

    Remanded when evidence imperfectly developed. —

    When the evidence was imperfectly developed on the trial, and for that reason there was not sufficient evidence before the Supreme Court to enable it to feel that it would attain the ends of justice by entering a final order under this section, the case will be remanded for a new trial. Branning Mfg. Co. v. Norfolk-Southern R.R., 138 Va. 43 , 121 S.E. 74 , 1924 Va. LEXIS 9 (1924).

    The question whether the plaintiff used reasonable diligence in the resale of the goods after the breach of contract by buyer was manifestly not considered by the jury, or the court, nor put in issue by the parties on the trial below. The Supreme Court did not feel that the facts before it bearing on that question had been sufficiently developed to enable it to feel that it would attain the ends of justice by passing thereon and entering final judgment. Mayflower Mills v. Hardy, 138 Va. 138 , 120 S.E. 861 , 1924 Va. LEXIS 18 (1924).

    When evidence as to plaintiff’s insurance admitted. —

    In an action to recover damages for injuries sustained by plaintiff in a collision between the automobiles of plaintiff and defendant, the judgment of the trial court is reversed for the sole reason that the court admitted evidence regarding the insurance plaintiff carried and the amount he received thereunder by reason of his injuries. The issues of the negligence of defendant and the alleged contributory negligence of plaintiff having been concluded by the verdict adversely to defendant, he is not entitled to a new trial upon them, but, inasmuch as the prejudicial error in admitting the improper evidence in all probability influenced the jury in fixing the amount to be awarded plaintiff, the Supreme Court, in the exercise of its discretion under this section, will remand the case for a new trial, which shall be limited to the sole question of the proper amount of damages to be awarded. Johnson v. Kellam, 162 Va. 757 , 175 S.E. 634 , 1934 Va. LEXIS 284 (1934).

    Effect when amount of damages settled on first trial. —

    In an action for damages for personal injuries where the judgment is reversed and the cause remanded for error in admitting evidence, where as to the amount of damages the case was fully developed, and the parties had a fair trial, pursuant to this section, the Supreme Court directed that the question of the amount of damages should not be tried again, but that if upon another trial the verdict should be for the plaintiff, the court should enter a judgment thereon in favor of the plaintiff for the amount of damages awarded in the first trial. Whitten v. McClelland, 137 Va. 726 , 120 S.E. 146 , 1923 Va. LEXIS 194 (1923).

    In accordance with the provisions of this section, the order entered in the instant case upon reversal and remand for a new trial directed that the case should not be retried as to the amount of damages, as that question was fairly developed at the present trial, and there was no error assigned as to the instructions thereon, or as to the amount of the verdict. Director Gen. of R.R.'s v. Pence's Adm'x, 135 Va. 329 , 116 S.E. 351 , 1923 Va. LEXIS 18 (1923).

    When only question of liability for negligence remanded. —

    Where a judgment must be reversed because the case was submitted to the jury on the erroneous theory that plaintiff was a passenger at the time of her injury, the verdict established plaintiff’s freedom from contributory negligence and the amount of damages, so that, under this section the case will be remanded, with directions to submit only question of negligence on part of defendant. Virginia Ry. & Power Co. v. Dressler, 132 Va. 342 , 111 S.E. 243 , 1922 Va. LEXIS 29 (1922).

    When remanded as to whether passenger exercised a voluntary choice in leaving train between stations. —

    Where in an action by a passenger against a carrier for injury from assault the parties have had a fair trial upon all questions, including the amount of damages, except the question of whether the plaintiff exercised a free and voluntary choice in leaving the train after being carried beyond her station, the Supreme Court remanded the cause solely for the determination of that one question pursuant to this section. Hines v. Garrett, 131 Va. 125 , 108 S.E. 690 , 1921 Va. LEXIS 11 (1921).

    b.Questions or Points on Which New Trial Is Had.

    Case remanded for retrial generally. —

    It was contended that the appellate court should direct that the amount of damages be not again submitted to the jury on the further trial of the case, but that the issue be confined to a finding upon the question of liability of the defendant. But the court, upon consideration of the entire record, was of the opinion that the ends of justice did not require that the court should do otherwise than remand the case generally for a trial de novo. Virginia-Tennessee Motor Truck Corp. v. Wilson, 140 Va. 260 , 124 S.E. 231 , 1924 Va. LEXIS 170 (1924); Green v. Ruffin, 141 Va. 628 , 125 S.E. 742 , 1924 Va. LEXIS 4 (1924).

    Remand for new trial on one cause of action only. —

    Where the evidence was insufficient to justify a finding for alleged negligent blasting but sufficient to find for alleged negligent construction of drainage facilities, the judgment was reversed, the verdict set aside, and a new trial ordered limited to the cause of action based on negligent construction and installation of the drainage facilities. B.G. Young & Sons v. Kirk, 202 Va. 176 , 116 S.E.2d 38, 1960 Va. LEXIS 203 (1960).

    To determine amount of damages. —

    A verdict for the plaintiff having determined the question of liability, the case was remanded for a new trial, but only upon the amount of damages the plaintiff was entitled to recover under authority of this section. Baker v. Carrington, 138 Va. 22 , 120 S.E. 856 , 1924 Va. LEXIS 7 (1924); Certified T.V. & Appliance Co. v. Harrington, 201 Va. 109 , 109 S.E.2d 126, 1959 Va. LEXIS 200 (1959).

    Where decree was required to be reversed for failure to award a judgment for proved damages, but the facts before the Supreme Court did not enable the court to enter a final decree that would “attain the ends of justice,” the cause was remanded to the trial court for a new trial limited to the issue of damages, and with directions to order an issue out of chancery and impanel a jury to determine the question of damages. Washington Golf & Country Club, Inc. v. Briggs & Brennan Developers, Inc., 198 Va. 586 , 95 S.E.2d 233, 1956 Va. LEXIS 245 (1956).

    Where liability had been admitted by defendant, but certain errors were committed in instructing the jury as to damages, the case was remanded for trial on the issue of damages only. Eubank v. Spencer, 203 Va. 923 , 128 S.E.2d 299, 1962 Va. LEXIS 238 (1962).

    Remanded when evidence imperfectly developed. —

    When the evidence was imperfectly developed on the trial, and for that reason there was not sufficient evidence before the Supreme Court to enable it to feel that it would attain the ends of justice by entering a final order under this section, the case will be remanded for a new trial. Branning Mfg. Co. v. Norfolk-Southern R.R., 138 Va. 43 , 121 S.E. 74 , 1924 Va. LEXIS 9 (1924).

    The question whether the plaintiff used reasonable diligence in the resale of the goods after the breach of contract by buyer was manifestly not considered by the jury, or the court, nor put in issue by the parties on the trial below. The Supreme Court did not feel that the facts before it bearing on that question had been sufficiently developed to enable it to feel that it would attain the ends of justice by passing thereon and entering final judgment. Mayflower Mills v. Hardy, 138 Va. 138 , 120 S.E. 861 , 1924 Va. LEXIS 18 (1924).

    When evidence as to plaintiff’s insurance admitted. —

    In an action to recover damages for injuries sustained by plaintiff in a collision between the automobiles of plaintiff and defendant, the judgment of the trial court is reversed for the sole reason that the court admitted evidence regarding the insurance plaintiff carried and the amount he received thereunder by reason of his injuries. The issues of the negligence of defendant and the alleged contributory negligence of plaintiff having been concluded by the verdict adversely to defendant, he is not entitled to a new trial upon them, but, inasmuch as the prejudicial error in admitting the improper evidence in all probability influenced the jury in fixing the amount to be awarded plaintiff, the Supreme Court, in the exercise of its discretion under this section, will remand the case for a new trial, which shall be limited to the sole question of the proper amount of damages to be awarded. Johnson v. Kellam, 162 Va. 757 , 175 S.E. 634 , 1934 Va. LEXIS 284 (1934).

    Effect when amount of damages settled on first trial. —

    In an action for damages for personal injuries where the judgment is reversed and the cause remanded for error in admitting evidence, where as to the amount of damages the case was fully developed, and the parties had a fair trial, pursuant to this section, the Supreme Court directed that the question of the amount of damages should not be tried again, but that if upon another trial the verdict should be for the plaintiff, the court should enter a judgment thereon in favor of the plaintiff for the amount of damages awarded in the first trial. Whitten v. McClelland, 137 Va. 726 , 120 S.E. 146 , 1923 Va. LEXIS 194 (1923).

    In accordance with the provisions of this section, the order entered in the instant case upon reversal and remand for a new trial directed that the case should not be retried as to the amount of damages, as that question was fairly developed at the present trial, and there was no error assigned as to the instructions thereon, or as to the amount of the verdict. Director Gen. of R.R.'s v. Pence's Adm'x, 135 Va. 329 , 116 S.E. 351 , 1923 Va. LEXIS 18 (1923).

    When only question of liability for negligence remanded. —

    Where a judgment must be reversed because the case was submitted to the jury on the erroneous theory that plaintiff was a passenger at the time of her injury, the verdict established plaintiff’s freedom from contributory negligence and the amount of damages, so that, under this section the case will be remanded, with directions to submit only question of negligence on part of defendant. Virginia Ry. & Power Co. v. Dressler, 132 Va. 342 , 111 S.E. 243 , 1922 Va. LEXIS 29 (1922).

    When remanded as to whether passenger exercised a voluntary choice in leaving train between stations. —

    Where in an action by a passenger against a carrier for injury from assault the parties have had a fair trial upon all questions, including the amount of damages, except the question of whether the plaintiff exercised a free and voluntary choice in leaving the train after being carried beyond her station, the Supreme Court remanded the cause solely for the determination of that one question pursuant to this section. Hines v. Garrett, 131 Va. 125 , 108 S.E. 690 , 1921 Va. LEXIS 11 (1921).

    § 8.01-682. What damages awarded appellee.

    When any judgment is affirmed, whether in whole or in part, damages shall be awarded to the appellee on the portion of the judgment affirmed. When the judgment is for the payment of money, the damages shall be the interest to which the party is legally entitled, as provided in § 6.2-302 or any other provision of law, from the date of filing the notice of appeal until the date the appellate court issues its mandate. Such interest shall be computed upon the whole amount of the recovery affirmed, including interest and costs, and such damages shall be in satisfaction of all interest during such period of time. When the judgment is not for the payment of any money, except costs, the damages shall be such specific sum as the appellate court may deem reasonable, not being more than $2,500 nor less than $150.

    History. Code 1950, § 8-495; 1977, c. 617; 1984, c. 703; 2010, c. 343; 2012, c. 58; 2016, c. 178; 2019, c. 134.

    Cross references.

    As to recovery of damages sustained for property with held during appeal, § 8.01-123 .

    The 2010 amendments.

    The 2010 amendment by c. 343 substituted “$2,500” for “$100” and “$150” for “$30.”

    The 2012 amendments.

    The 2012 amendment by c. 58 rewrote the second sentence, which formerly read: “Such damages, when the judgment is for the payment of money, shall be the interest to which the parties are legally entitled, from the time the appeal took effect, until the affirmance.”

    The 2016 amendments.

    The 2016 amendment by c. 178 inserted “as provided in § 6.2-302 or any other provision of law.”

    The 2019 amendments.

    The 2019 amendment by c. 134 inserted “whether in whole or in part” and “on the portion of the judgment affirmed” in the first sentence and inserted “affirmed” in the third sentence.

    Law Review.

    For annual survey of Virginia law article, “Civil Practice and Procedure,” see 47 U. Rich. L. Rev. 113 (2012).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, § 315.

    CASE NOTES

    Analysis

    I.Decisions Under Current Law.

    Interest to be paid on original award of sum that includes attorney’s fees. —

    Because attorney’s fees are not court “costs,” the trial court’s original award of a sum that included attorney’s fees was, in fact, a judgment for the payment of money and not merely an order to pay “costs”; thus, the trial court did not err in ordering that interest be paid on the original award of attorney’s fees in accordance with the second sentence of this section. Jacob v. Jacob, No. 1502-90-4 (Ct. of Appeals, March 17, 1992).

    II.Decisions Under Prior Law.

    Editor’s note.

    The words “appellant” and “appellee” as used in this section and § 8.01-676 are not used in a technical sense, but in a broader sense by which they include the plaintiffs and defendants in a writ of error as well as in an appeal. Widgins v. Norfolk & W. Ry., 142 Va. 419 , 128 S.E. 516 , 1925 Va. LEXIS 348 (1925), overruled, Fitzgerald v. Holton, 199 Va. 368 , 99 S.E.2d 615, 1957 Va. LEXIS 199 (1957).

    This section does not apply to the affirmance of a judgment imposing an amercement or fine. Abrahams v. Commonwealth, 40 Va. (1 Rob.) 675, 1842 Va. LEXIS 40 (1842).

    Damages included in lien. —

    There was an appeal from a judgment for money which was a lien on land, and the judgment was affirmed. It was held that the lien, after such affirmance was not only for the damages, interest and costs recovered by the original judgment, but also for the damages and costs to which the creditor became entitled by the judgment of affirmance. M'Clung v. Beirne, 37 Va. (10 Leigh) 394, 1839 Va. LEXIS 43 (1839).

    § 8.01-683. When Clerk of Supreme Court to transmit its decisions.

    When any term of the Supreme Court is ended, or sooner if the court so direct, the Clerk thereof shall certify and transmit its decision to the clerk of the court or tribunal below, as the case may be, except that it shall not be his duty to certify or transmit a copy of a judgment of affirmance unless the appellee shall have paid all fees due from him in the case, or shall endorse on such copy so much of the judgment, for the benefit of the clerk, as the unpaid fees shall amount to. If any clerk fail to comply with this section for twenty days, except as aforesaid, he shall forfeit fifty dollars to any person aggrieved thereby.

    History. Code 1950, § 8-496; 1977, c. 617.

    REVISERS’ NOTE

    Former § 8-497 (Postage to be paid by clerk . . .) has been deleted as unnecessary.

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, § 341.

    § 8.01-684. Copies of Court’s opinions to be furnished to counsel.

    When a case is decided by an appellate court the clerk shall furnish a copy of the opinion rendered by the court thereon to each counsel of record without making any charge therefor.

    History. Code 1950, § 8-497.1; 1977, c. 617; 1984, c. 703.

    REVISERS’ NOTE

    Former § 8-497.1 has been rewritten to ensure that each counsel of record is furnished a copy of the court’s opinion without charge.

    Cross references.

    For application of this section to criminal cases, see § 19.2-325 .

    Michie’s Jurisprudence.

    For related discussion, see 5A M.J. Costs, § 12.

    § 8.01-685. Entry of decision in lower court; issue of execution thereon.

    The court or other tribunal from which any case may have come to an appellate court shall enter the decision of the appellate court as its own, and execution or other appropriate process may issue thereon accordingly. When that decision is received by the clerk or secretary of the court or tribunal below, he shall enter it of record in his order book, and thereupon such execution may issue and such proceedings be had in the case as would have been proper if the decision had been entered in court or by such tribunal.

    If the judgment of the lower court or tribunal is affirmed, in whole or in part, by the decision of an appellate court, execution or other appropriate process may issue thereon against the principal and surety on any appeal bond which may have been given, for the amount of such judgment, including the interest and cost and the damages awarded by the appellate court, not exceeding, however, the penalty of such bond.

    History. Code 1950, § 8-498; 1977, c. 617; 1984, c. 703.

    REVISERS’ NOTE

    “Other tribunal” has been inserted in the first line of former § 8-498 to include the State Corporation Commission and the Industrial (now Workers’ Compensation) Commission.

    Law Review.

    For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

    For essay, “Nonsuit in Virginia Civil Trials,” see 48 U. Rich. L. Rev. 265 (2013).

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, § 341.

    CASE NOTES

    This section does not apply where the executions were issued upon the original judgments of the circuit court and were not issued under this section. Seal v. Puckett, 159 Va. 297 , 165 S.E. 496 , 1932 Va. LEXIS 197 (1932) (decided under prior law).

    Execution on appeal bond. —

    Subsection C of § 8.01-676.1 and § 8.01-685 allow execution on an appeal bond for the amount of a judgment, including the interest, cost, and damages awarded by the appellate court, and do not require any proof that — but for the bond — the party could have collected the judgment. Zedan v. Westheim, 62 Va. App. 39, 741 S.E.2d 792, 2013 Va. App. LEXIS 145 (2013).

    Time for refiling non-suited action. —

    Where an injured party re-filed a non-suited action within six months of the date the trial court entered “as its own” the state supreme court’s mandate affirming the trial court’ order, the trial court erred in dismissing the action as untimely under subdivision E 3 of § 8.01-229 . Phipps v. Liddle, 267 Va. 344 , 593 S.E.2d 193, 2004 Va. LEXIS 34 (2004).

    §§ 8.01-686, 8.01-687. Repealed by Acts 1984, c. 703.

    Cross references.

    For provisions as to finality of dismissals, see § 8.01-675.1 .

    Article 4. Miscellaneous Provisions.

    § 8.01-688. Order books, etc., of former district courts in custody of Clerk of Supreme Court, etc.

    The order books, dockets and other office books formerly belonging to the several former district courts shall remain in the custody of the Clerk of the Supreme Court. Said Clerk shall furnish transcripts of the records and proceedings of such district courts when required, and perform all other duties in respect to records and proceedings of such district courts as might have been performed by the clerks of such district courts if such courts had continued to exist. All printed and manuscript orders, and other papers pertaining to cases decided in such district courts, shall remain in the custody of the clerks of the circuit courts at the several places where such district courts held their sessions, who shall be charged with the same duties in respect to such records and papers as might have been performed by the clerks of such district courts respectively, if such courts had continued to exist, and who shall receive for any such service fees similar to those charged by the clerks of district courts for such services.

    History. Code 1950, § 8-502; 1977, c. 617.

    Michie’s Jurisprudence.

    For related discussion, see 1B M.J. Appeal and Error, § 20.1.

    Chapter 27. Virginia Prisoner Litigation Reform Act.

    § 8.01-689. Short title.

    This chapter shall be known and may be cited as the “Virginia Prisoner Litigation Reform Act.”

    History. 2002, c. 871.

    § 8.01-690. Applicability provisions.

    The provisions of this chapter shall apply to all pro se civil actions for money damages brought under the laws of this Commonwealth, or for injunctive, declaratory or mandamus relief, brought by prisoners incarcerated in any state or local correctional facility, or operated pursuant to the Corrections Private Management Act (§ 53.1-261 et seq.).

    History. 2002, c. 871.

    § 8.01-691. Payment of filing fees and costs by prisoners; when in forma pauperis status granted.

    A prisoner seeking in forma pauperis status shall provide the court with a certified copy of his inmate trust account for the preceding twelve months. Any prisoner granted leave to proceed in forma pauperis shall nonetheless make payments, in equal installments as the court directs, towards satisfaction of the filing fee and costs. If the court determines the prisoner has had no deposits in his inmate trust account for the preceding six months, the court shall permit the prisoner to proceed without paying the filing fee and costs. However, the filing fee and costs shall be taxed as costs at the end of the case. Any prisoner failing to make any payment when due shall have his case dismissed without prejudice.

    History. 2002, c. 871.

    CASE NOTES

    In forma pauperis status improperly denied. —

    Inmate’s request to proceed in forma pauperis with his petition for a writ of mandamus was improperly denied because the “deposits” reflected in the inmate’s trust account documents were not “deposits” within the ordinary meaning of the term as they were clearly not analogous to an ordinary bank deposit, where the depositor placed funds in the custody of the bank and could use the funds for any purpose, as the Virginia Department of Corrections did not deposit any actual money in the inmate’s account, and the inmate never had access to actual funds from those “deposits” to pay all or part of a filing fee; and the inmate did not have any real “deposits” in his inmate trust account within the preceding six months. Grethen v. Robinson, 294 Va. 392 , 806 S.E.2d 406, 2017 Va. LEXIS 166 (2017).

    § 8.01-692. When in forma pauperis status denied.

    The court shall deny in forma pauperis status to any prisoner who has had three or more cases or appeals dismissed by any federal or state court for being frivolous, malicious, or for failure to state a claim, unless the prisoner shows that he is in imminent danger of serious physical injury at the time of filing his motion for judgment or the court determines that it would be manifest injustice to deny in forma pauperis status.

    History. 2002, c. 871.

    CASE NOTES

    Denial proper. —

    Supreme Court affirmed that portion of the circuit court’s judgment denying a prison inmate prospective in forma pauperis status under § 8.01-692 because the inmate had at least three cases dismissed for failure to state a claim. Gordon v. Kiser, 296 Va. 418 , 821 S.E.2d 531, 2018 Va. LEXIS 178 (2018).

    § 8.01-693. Venue of prisoner actions.

    Notwithstanding any other provision of law, no prisoner action shall be filed except in the city or county in which the prison is located where the prisoner was housed when his cause of action arose. When an action is filed in an improper venue, upon motion of the defendant or the court sua sponte, the court shall transfer the case to the proper venue.

    History. 2002, c. 871.

    § 8.01-694. Service of process; time for response.

    In any action in which any defendant is the Commonwealth or one of its officers, employees, or agents, upon the grant of in forma pauperis status or receipt of the filing fee and costs, the court shall serve the Office of the Attorney General with a copy of the motion for judgment and all necessary supporting papers. The Office of the Attorney General shall have no fewer than thirty days from receipt in which to file responsive pleadings. The prisoner’s failure to state his claims in a written motion for judgment plainly stating facts sufficient to support his cause of action, accompanied by all necessary supporting documentation, may be grounds for dismissal of the action.

    History. 2002, c. 871; 2009, c. 372.

    The 2009 amendments.

    The 2009 amendment by c. 372 added “In any action in which any defendant is the Commonwealth or one of its officers, employees, or agents” at the beginning and made a related change.

    CASE NOTES

    Failure to attach all supporting documentation to pleadings not grounds for dismissal. —

    Inmate’s claim that a medical service provider’s failure to provide him proper treatment was cruel and unusual punishment in violation of Va. Const., Art. I, § 9, should not have been dismissed at the pleading stage, as his failure to attach all supporting documentation to his pleadings was not grounds for dismissal under § 8.01-694 of the Virginia Prisoner Litigation Reform Act, § 8.01-689 et seq. Ogunde v. Prison Health Servs., 274 Va. 55 , 645 S.E.2d 520, 2007 Va. LEXIS 73 (2007).

    Virginia Prisoner Litigation Reform Act, § 8.01-689 et seq., does not require the filing of additional documentation or affidavits with a pleading. Regardless whether a trial court believes a claim brought by a pro se prisoner may ultimately fail, at the pleading stage the trial court is bound by the same procedures, rules and policies that apply to a party represented by counsel. Ogunde v. Prison Health Servs., 274 Va. 55 , 645 S.E.2d 520, 2007 Va. LEXIS 73 (2007).

    § 8.01-695. When argument held; when discovery permitted.

    Oral argument on any motion in any prisoner civil action shall be heard orally only at the request of the court; whenever possible, the court shall rule upon the record before it. No prisoner shall be permitted to request subpoenas for witnesses or documents, or file discovery requests, until the court has ruled upon any demurrer, plea or motion to dismiss. Where a case proceeds past the initial dispositive motions, the court shall require the prisoner seeking discovery to demonstrate that his requests are relevant and material to the issues in the case. No subpoena for witnesses or documents shall issue unless a judge of the court has reviewed the subpoena request and specifically authorized a subpoena to issue. The court shall exercise its discretion in determining the scope of the subpoena and may condition its issuance on such terms as the court finds appropriate. The court shall take into account the burden placed upon the object of the subpoena in relation to the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.

    History. 2002, c. 871; 2006, c. 435.

    The 2006 amendments.

    The 2006 amendment by c. 435 added the last three sentences.

    Law Review.

    For 2007 annual survey article, “Civil Practice and Procedure,” see 42 U. Rich. L. Rev. 229 (2007).

    § 8.01-696. Summary judgment; pro se prisoner civil action.

    Notwithstanding the provisions of § 8.01-420 , any time after commencement of a pro se prisoner civil action, a party may move for summary judgment on all issues based upon the pleadings, any admissions, and supporting affidavits. The adverse party may serve supporting affidavits within 10 days after service of the motion. The judgment sought shall be rendered forthwith if the pleadings, admissions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.

    History. 2006, c. 435.

    § 8.01-697. Access to Department of Corrections records.

    All records maintained by the Department of Corrections in the name of individual prisoners, including prisoner medical records, shall be the property of the Department. Notwithstanding the provisions of § 32.1-127.1:03 , in any civil suit subject to this chapter, where the Commonwealth, an agency of the Commonwealth, an employee of the Commonwealth, or a private contractor providing services to the Department of Corrections is named as a defendant, the Director of the Department may share any records maintained by the Department in the name of the prisoner filing suit with counsel representing the above-named defendants.

    History. 2006, c. 435.