Westlake Properties v. Westlake Pointe Ass'n , 273 Va. 107 ( 2007 )

Present: All the Justices
WESTLAKE PROPERTIES, INC., ET AL.
OPINION BY
v. Record No. 060518 JUSTICE LAWRENCE L. KOONTZ, JR.
January 12, 2007
WESTLAKE POINTE PROPERTY
OWNERS ASSOCIATION, INC.
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
William N. Alexander II, Judge
This appeal arises from a judgment of the trial court
confirming a jury verdict in favor of a property owners’
association against the corporate developer and the corporate
contractor for construction of a townhome community. The
property owners’ association maintained that as a result of
negligence in development and construction, the septic system
serving the community was damaged when massive soil erosion
occurred on the community property. The sufficiency of the
evidence to support this negligence claim is not at issue in
this appeal. The principal issues we consider are whether the
property owners’ association had standing to bring the action on
its own behalf and, if so, whether the individual property
owners were nonetheless necessary parties to the action. We
also consider whether an improper attempt to impeach a witness
was adequately cured by a cautionary instruction to the jury and
whether the jury was correctly instructed on the issue of
proximate causation and the proper measure of damages.
BACKGROUND
Westlake Pointe is a townhome community located on Smith
Mountain Lake in Franklin County. Westlake Properties, Inc.
began development of Westlake Pointe in 1998.1 In an original
declaration of covenants, conditions and restrictions recorded
among the land records of Franklin County on May 1, 1998,
Westlake Properties stated its intention, among other things, to
establish “Limited Common Easements . . . which shall be
easements to locate, maintain, repair, operate and replace sewer
lines, septic systems and drainfields on the common area
designated for drainfield use and within any sewer line, septic
system or drainfields designated upon land adjoining the
property.” In that declaration, Westlake Properties further
stated that it had “incorporated under the laws of the
Commonwealth of Virginia, as a non-profit corporation, Westlake
Pointe Property Owners Association, Inc.” (“the Association”).
The express purpose for creating the Association was to delegate
1
Realty Services, Inc. served as general contractor for the
development of Westlake Pointe and is also a party to this
appeal. Realty Services is wholly owned by Wayne Yeatts, one of
the principals of Westlake Properties, Inc. Yeatts acknowledged
that in the development and construction of Westlake Pointe, the
two entities worked in concert and essentially functioned as
one. For convenience, hereinafter we will refer to the
appellants jointly as “Westlake Properties.”
2
to it “the powers of maintaining and administering the Community
facilities” including the septic system.
The declaration also provided that “[t]he Developer will be
the initial owner of the sewage disposal system . . . and also
of the permit issued by the state health commissioner for the
construction, maintenance, and operation of the septic tank and
drainfield sewage disposal system.” The declaration further
provided that “[t]he permit and ownership of the sewage disposal
system including the drainfield or Limited Common Easements and
the Common Areas upon which said easements are located . . . and
[the Developer’s] responsibilities [to maintain and repair the
system] will be transferred to the Association” upon substantial
completion of the development or sale of seventy-five percent of
the townhomes.
Westlake Pointe was subsequently developed to consist of
forty-six separately owned townhomes in eight buildings. As
originally designed, the septic system included eleven septic
tanks and pump stations to service all the townhomes in the
development. Individual sewer lines connected each townhome to
one of the eleven septic tanks. Most of these septic tanks and
the other fixtures of the septic system were installed in a
slope, which was located behind four of the buildings and
between them and the waterline of the lake. Effluent from the
3
septic tanks was pumped to a drainfield located several hundred
yards from the development. The drainfield was part of the
common property that ultimately was deeded to the Association.
Most of the fixtures of the septic system were located on lots
that abutted and included portions of the slope which ultimately
was deeded to the individual owners of the townhomes.
In addition to the construction and installation of the
septic system, the engineering design specifications of the
Westlake Pointe development plans called for the soil of the
slope, where the principal fixtures of the septic system would
be located, to be filled, compacted, and graded in a specific
manner to prevent excessive erosion and runoff. Westlake
Properties does not contest that it deviated significantly from
these specifications for covering the septic system with the
specified fill dirt and compacting and grading the slope. The
evidence showed that Westlake Properties negligently failed to
use the proper quality of fill material, did not adequately
compact the fill material used, and did not contour the slope to
the recommended grade.
After Westlake Pointe was fully developed, Westlake
Properties turned control of the Association over to the
property owners on May 2, 2003. With the transfer of control,
as provided by the declaration, the Association became the
4
record owner of the common areas of the community, including the
fixtures that made up the infrastructure of the common portions
of the septic system, as well as the permit issued by the state
health commissioner for its operation.
The Association’s articles of incorporation expressly
require it “to manage and [e]nsure the maintenance, repair,
replacement and operation of the septic systems.” The
Association is required further to maintain the septic system
“in compliance with the applicable state and local laws,
ordinances, and regulations.” To that end, the Association is
authorized to make assessments on the property owners to pay for
the maintenance and repair of the septic system. Under the
provisions of a recorded dedication of easements pertaining to
Westlake Pointe, the individual property owners are required to
maintain the sewer lines that connect their townhomes to the
common fixtures of the septic system, and the Association has an
easement to come onto the property of an individual property
owner to repair or maintain the fixtures of the septic system.
Prior to the transfer of control to the Association and
with it the obligation to maintain and repair the septic system,
the property owners had reported to Westlake Properties numerous
problems with the slope where the common fixtures of the septic
system were located. Specifically, there had been multiple
5
instances of soil erosion, known as “washouts,” as well as
resulting structural damage to various fixtures of the septic
system. Westlake Properties took remedial efforts to repair the
damage and rectify the situation, but problems with soil erosion
along the entire slope persisted.
From August 9 to August 10, 2003, heavy rain in the Smith
Mountain Lake area resulted in a catastrophic failure of the
Westlake Pointe septic system. Due to excessive erosion in the
slope, the septic tanks and pump stations that served a number
of the townhomes were completely exposed and damaged in place or
were dislodged entirely from their proper placement in the
system so that they were no longer capable of functioning. The
erosion rapidly spread along the slope behind other buildings.
As a result of the exposure and damage to the septic tanks and
pump stations, the entire community was inundated by the smell
of the raw sewage.
The Franklin County Health Department investigated the
damage to the Westlake Pointe septic system and directed the
Association to “come up with a plan of action . . . to keep the
sewage system operational and keep sewage off the ground and out
of [Smith Mountain Lake].” The Association was given fourteen
days to hire an engineer and report back to the Department.
According to the Department, the order was directed to the
6
Association as the party “legally responsible” for the
maintenance and repair of the septic system.
The Association obtained estimates from several engineers
for making repairs to the septic system and ultimately hired ACS
Design LLC to devise a plan to address the erosion of the slope
that was the origin of the problem with the system. ACS Design,
along with the general contractor hired to perform the
anticipated repair work and a consulting geotechnical
engineering firm, determined that the septic system would need
to be entirely redesigned. This would require the relocation of
most of the septic system’s infrastructure, removal of the
existing fixtures of the system, and construction of a retaining
wall to prevent future erosion.
According to Dan Early, the ACS Design engineer who
designed the plan for the new septic system, the decision not to
attempt to restore the system in accord with the original
development plan was reached because the erosion of the slope
made it “impossible to develop a repair [plan] that was
specified on the original design.” Early further stated that to
repair the system so that it would be as originally designed
could not have been achieved within the same budget and time
frame that would be required to install the newly designed
system.
7
After the plan to replace the septic system was approved by
the health department, the Association voted to assess each
homeowner $13,050 to cover the cost of the construction. The
Association further determined, and advised the individual
property owners, that it would seek to recover the cost of
repairing the septic system from Westlake Properties. According
to Philip H. Martin, an officer of the Association, it was
“assumed that any recovery [from Westlake Properties] would be
redistributed to the record members of the Association” at the
time the special assessment was made. However, Martin further
stated that “[n]o official decision has been made on that
issue.”
On June 17, 2004, the Association filed a motion for
judgment against Westlake Properties seeking $750,000 in damages
under theories of negligence, breach of an implied warranty,
breach of contract, and indemnity.2 Westlake Properties
responded to the motion for judgment by filing a plea in bar.
As relevant to this appeal, Westlake Properties contended that
“the Association lacks standing to bring this action” because
the septic system “is not owned by the Association but is owned
2
The motion for judgment was filed in the Circuit Court of
the City of Roanoke. Before any material proceedings occurred,
however, the case was transferred to the Circuit Court of
Franklin County.
8
instead by the individual property owners who are not parties to
this action.” In a responding brief, the Association contended
that it had standing to bring the action because it had a legal
obligation to maintain the septic system.
In an order dated August 15, 2005, the trial court denied
Westlake Properties’ plea in bar, finding that the Association
had standing to bring the action. The trial court further
ruled, however, that the Association “cannot proceed as a
representative of the individual property owners.”
Following entry of the trial court’s order denying the plea
in bar, Westlake Properties filed a motion for reconsideration
alleging that during a deposition, Martin had conceded that the
Association was acting in a representative capacity for the
property owners. Westlake Properties alleged that this
concession established both that the Association had no legal
claim against Westlake Properties and that, even if it did, the
property owners were nonetheless necessary parties to the
action. While conceding that the property owners might
ultimately benefit from any recovery from Westlake Properties,
the Association maintained that it sought to recover damages
incurred by the Association and, thus, it was neither acting in
a representative capacity for the property owners, nor were they
necessary parties to the action.
9
In an order dated September 28, 2005, the trial court
denied Westlake Properties’ motion for reconsideration of the
standing issue and further ruled that the property owners were
not necessary parties to the action. In that order, the trial
court adopted by reference the findings of fact and rationale
for its ruling as stated in the hearing on the motion for
reconsideration:
I still did not see how the homeowners’ association is
proceeding in a representational capacity. They are
doing exactly what they are required to do.
It is not the individual [property owner’s]
damage, even though [the Association] might end up
distributing any money collected to the homeowners.
The [property owners] are not the people damaged.
The damage has been done to the [A]ssociation because
they are the ones required by the articles and by the
way the corporation has been set up to maintain, to
replace, to repair the damage, if any, and the whole
system.
. . . .
It doesn’t make the [property owners] necessary
parties because the . . . [A]ssociation still will not
be coming in and testifying about individual losses.
It is not [the property owners’] loss. It is the
[A]ssociation’s loss, and I don’t think the homeowners
are necessary parties in this.
The necessary party is the [A]ssociation.
By leave of the trial court, the Association filed an
amended motion for judgment on November 23, 2005; however, the
amended motion for judgment did not differ materially from the
10
original motion for judgment. Westlake Properties filed a plea
in bar to the amended motion for judgment in which it restated
its assertions that the Association lacked standing to bring the
action and was acting in a representative capacity for the
property owners, who, Westlake Properties again contended, were
necessary parties to the prosecution of the action against it.
The trial court did not rule on the plea in bar to the amended
motion for judgment until the conclusion of the trial, at which
time it was summarily overruled.
In a jury trial beginning December 8, 2005 and continuing
for five days, the trial court received evidence in accord with
the above-recited facts.3 Because the issues raised in this
appeal relate to actions of the trial court that arose during
distinct incidents of the proceedings, we will recite additional
relevant evidence and the nature of the proceedings pertinent to
those issues within our discussion. At the conclusion of the
trial, the jury found that Westlake Properties was negligent in
3
Immediately prior to trial, upon motion of Westlake
Properties to require an election of remedies, the trial court
directed that the trial would be bifurcated, with the jury first
determining the negligence claim, and that the trial would
proceed to the contract, warranty, and indemnity claims only “if
necessary.” The Association objected to the trial court
requiring it to elect its remedy and to the bifurcation of the
trial, but has not assigned cross-error to those rulings.
Accordingly, we will express no opinion thereon.
11
its construction of the septic system and awarded the
Association $641,788.43. The parties agree that this amount is
the precise cost of removing the damaged original system,
constructing the replacement septic system, and regrading the
slope. In a final order dated January 12, 2006, the trial court
confirmed the jury’s verdict and award of damages, overruling
Westlake Properties’ motion to set aside that verdict as
contrary to the law and the evidence.
DISCUSSION
This Court awarded Westlake Properties an appeal limited to
the following assignments of error:
1. The trial court properly ruled before trial
that the Association could not proceed in a
representational capacity but erred thereafter by
permitting the Association to proceed in a
representational capacity to recover damages for
nonparty property owners.
2. The trial court erred by ruling that the
Association otherwise had standing.
[3]. The trial court erred by concluding that
individual property owners were not necessary parties.
[4]. Where the Association called Westlake
Properties’ president to the stand for the purpose of
informing the jury that the president had been
convicted of a felony, the trial court erred by
denying defendants’ motions for mistrial on that and
other grounds.
[5]. The trial court improperly instructed the
jury concerning liability and damages[:] (a) Where
the Association told the jury in opening statement
that the jury would address the question of whether
12
the slope failure was caused by the August 2003 storm
and offered evidence accordingly, the trial court
erred by taking that question away from the jury and
by ruling that defendants could not argue that the
slope failure was caused by excessive rainfall and the
August 2003 storm[; and] (b) The trial court also
improperly instructed the jury concerning the measure
of damages.
Standing and Necessary Parties
Westlake Properties initially contends that the trial
court’s pre-trial ruling that the Association could not act in a
representative capacity for the individual property owners
constitutes a factual finding that the Association was, in fact,
attempting to act in that capacity. Westlake Properties further
contends that subsequent events at trial show that, despite the
trial court’s order, the Association continued to act as the de
facto representative of the property owners, rather than
pursuing any claim of its own.
In support of these contentions, Westlake Properties notes
that in his opening statement, counsel for the Association
referred to the trial as an opportunity to “bring out into the
light . . . the situation through which Westlake Pointe Property
Owners Association and its members, [t]he folks who are here –
many of whom are here out in the audience today, . . . lived the
last few years.” The Association’s counsel later stated,
referring to the property owners, that “the folks . . . living
here at the lake [in] this development . . . are complaining
13
about the fact that they had to lay out of their [own] pocket[s]
$641,000 of their own money.”
After the opening statements were made and outside the
presence of the jury, Westlake Properties contended that counsel
for the Association had, by making reference to the property
owners in his opening statement, conceded both that the
Association lacked standing to proceed on its own and that the
property owners were necessary parties to the case. The trial
court, while rejecting these contentions, nonetheless admonished
counsel for the Association that “you are representing the . . .
Association; you’re not representing the individual homeowners
. . . . Keep the record clear.”
Contrary to the interpretation made by Westlake Properties,
nothing in the trial court’s August 15, 2005 order suggests that
it made a factual finding that the Association had been
attempting to proceed jointly or solely as a representative of
the individual property owners. Rather, the trial court was
clear in its ruling that the Association had independent
standing to maintain the action in its own name, that this was
the only basis upon which the Association could present its case
to the jury, and that the Association could not “proceed as a
representative of the individual property owners.” These
findings were emphasized in the trial court’s summation,
14
subsequently incorporated into its September 28, 2005 order, at
the conclusion of the hearing on Westlake Properties’ motion to
reconsider.
The isolated comments made by counsel for the Association
during opening statements, when viewed out of context, might
well imply representation of the individual property owners.
These comments do not, however, constitute an “admission” that
the Association was acting in a representative capacity for the
individual property owners. Rather, we are of opinion that
these comments were merely references to the property owners
collectively as the members of the Association; references that
were at worst irrelevant and certainly far short of an admission
or an assertion of representative capacity by the Association in
this suit.
We recognize that although opening statements are not
evidence, the introduction of irrelevant or prejudicial issues
by counsel during opening statements can be grounds for a
mistrial. See, e.g., Forsberg v. Harris, 238 Va. 442, 445, 384
S.E.2d 90, 91-92 (1989)(counsel’s mentioning that defendant was
employed in the insurance industry was grounds for setting aside
verdict). Here, the full context of counsel’s opening statement
made clear to the jury that the issue before it would be whether
and to what extent the Association was damaged by Westlake
15
Properties’ negligence. The evidence subsequently presented at
trial was limited to that claim for damages. Accordingly, we
hold that the Association was not acting in a representative
capacity for the individual property owners with respect to any
individual damages they may have suffered as a result of
Westlake Properties’ negligence.4
We turn now to Westlake Properties’ principal contention
that even if the Association was not acting in a representative
capacity for the individual property owners, the trial court
erred in ruling that the Association had independent standing to
proceed against Westlake Properties for the damage to the septic
system. In this regard, Westlake Properties reasons that
although it conveyed to the Association the common areas of the
development, the real property comprising the slope where the
erosion occurred and where the majority of the common fixtures
of the original septic system were located was deeded to
4
Our analysis is not altered by the likelihood that the
Association has an agreement, or at least an informal
understanding, that any recovery from the litigation would be
distributed to the individual property owners. Such a
distribution would be entirely in keeping with the nature and
purpose of the Association under the circumstances of this case.
The Association is not intended to be a for profit enterprise.
To the extent that fees and assessments paid by the members
exceed the expenses incurred by the Association and a reasonable
reserve, it is not improper for excess funds, however acquired,
to be returned pro rata to the membership.
16
individual property owners whose townhomes abut the slope.
Westlake Properties further reasons that the Association’s
obligation to maintain the septic system is secondary to that of
the individual property owners, who are required by the recorded
documents to “maintain[], repair or replace[] . . . the sewage
lines within [each] lot [owned] by the [individual] lot
owner[s].” Accordingly, Westlake Properties concludes that the
Association could not establish damages independent from the
damages incurred by the individual property owners on their
lots. We disagree.
A party has standing if it can “show an immediate,
pecuniary, and substantial interest in the litigation, and not a
remote or indirect interest.” Harbor Cruises, Inc. v. State
Corp. Comm., 219 Va. 675, 676, 250 S.E.2d 347, 348 (1979) (per
curiam). “The concept of standing concerns itself with the
characteristics of the person or entity who files suit. The
point of standing is to ensure that the person who asserts a
position has a substantial legal right to do so and that his
rights will be affected by the disposition of the case. In
asking whether a person has standing, we ask, in essence,
whether he has a sufficient interest in the subject matter of
the case so that the parties will be actual adversaries and the
issues will be fully and faithfully developed.” Cupp v. Board
17
of Supervisors of Fairfax County, 227 Va. 580, 589, 318 S.E.2d
407, 411 (1984)(internal citation omitted); see also Grisso v.
Nolen, 262 Va. 688, 693, 554 S.E.2d 91, 94 (2001); Goldman v.
Landsidle, 262 Va. 364, 371, 552 S.E.2d 67, 71 (2001).
It is clear, as Westlake Properties contends, that the
Association did not own the real property, that is the slope,
where the majority of the common fixtures that made up the
original septic system were located. On this record, it is also
beyond dispute that the Association owned, and was the party
legally responsible for the maintenance and repair of, the
fixtures of the septic system that served the entire
development. Westlake Properties’ assertion that the individual
property owners had the primary responsibility to maintain the
septic system as a whole is simply contrary to clear and
unambiguous express provisions of the pertinent recorded
documents which require the individual property owners to
maintain their individual sewer lines between their townhomes
and the common septic system, but places responsibility for
maintenance and repair of the common fixtures of the system
exclusively with the Association.
It also cannot be disputed that in order to function as
designed, the original septic system was required to be placed
in ground that had been properly graded and compacted to avoid
18
excessive erosion. Thus, even though the Association did not
own the real property, the damage caused to the septic system by
the erosion of the slope injured the Association and it had “an
immediate, pecuniary, and substantial interest” in recovering
for that damage. Accordingly, we hold that the trial court did
not err in ruling that the Association had standing to bring
this action against Westlake Properties.
We turn now to Westlake Properties’ contention that the
individual property owners were necessary parties in this suit.
Westlake Properties asserts that “the interests of individual
property owners were so ‘bound up’ with the interest of the
Association that the presence of the property owners . . . was a
necessity,” and their absence as parties deprived the trial
court of the power to render complete justice. Westlake
Properties maintains that this is so, in part, because a portion
of the damages sought by the Association included the regrading
of the slope and installation of a retaining wall. It further
maintains that there is the possibility that individual property
owners might have claims against Westlake Properties for damages
unrelated to the septic system and, thus, that it may be
subjected to further litigation. Accordingly, Westlake
Properties contends that even if the Association had standing to
proceed in the matter, the trial court erred in failing to find
19
that the individual property owners were nevertheless necessary
parties to the action. Again, we disagree.
It is a matter of common knowledge that fixtures comprising
a septic system are installed below the surface of the soil. It
follows then that the process of repairing or replacing a
damaged septic system necessarily requires invasion of the soil
and the subsequent restoration of the real property where the
damaged and replaced fixtures of the system were located and
where the new fixtures are installed. In this case, the
Association was given easements over the lots of the individual
property owners so that it could satisfy its duty to maintain
and repair the sewer system. As the owner of the dominant
estate, the Association had the duty to maintain those easements
in a manner consistent with the use allowed. Here that duty
required the restoration of the disturbed real property in which
the sewer system was located. See Anderson v. Lake Arrowhead
Civic Ass'n, 253 Va. 264, 273, 483 S.E.2d 209, 214 (1997);
Pettus v. Keeling, 232 Va. 483, 490, 352 S.E.2d 321, 326 (1987).
Thus, to the extent that the Association’s damages include
repairs and improvements to real property owned by individual
property owners, those damages were nonetheless direct damages
incurred by the Association as a result of its obligation to
maintain and repair the septic system.
20
A necessary party is one who has an interest in the subject
matter of the litigation that is likely to be defeated or
diminished by the litigation. Raney v. Four Thirty Seven Land
Co., 233 Va. 513, 519, 357 S.E.2d 733, 736 (1987). While the
individual property owners may have had, and may still have,
claims against Westlake Properties for other damage suffered as
a result of its negligence, the repair of the damaged slope was
a natural consequence of the Association’s duty to maintain the
septic system and the easements in which the fixtures of the
system were located. By seeking recovery only for the direct
damages it incurred, the Association’s action against Westlake
Properties neither implicated nor imperiled any claim by an
individual property owner for damages not related to the
replacement of the damaged septic system. Accordingly, we hold
that the trial court did not err in ruling that none of the
individual property owners were necessary parties to the action
filed by the Association.
Impeachment of an Adverse Witness
During its case-in-chief, the Association called Coy
Cooper, president of Westlake Properties, as an adverse witness.
At the outset of Cooper’s testimony, the Association’s
co-counsel asked, “Now, Mr. Cooper, in this case in front of the
jury we’re trying to get some of the truth out here, and one of
21
the truths that’s in this case is [that] you’ve been convicted
of a felony, correct?” Counsel for Westlake Properties
immediately objected to the question, and the witness did not
answer the question. The trial judge retired to chambers with
counsel for both parties. The conference in chambers was not
recorded. Thereafter, Cooper completed his direct testimony and
the proceeding was continued with the understanding that the
issue would be considered further.
On the next day of the trial, Westlake Properties expanded
its objection to the attempt to impeach Cooper to include a
motion for mistrial. The Association agreed to withdraw the
question, but contended that a cautionary instruction to the
jury would be sufficient to cure any harm the question may have
caused. Westlake Properties contended that a mistrial was the
only proper course as “cautionary instructions are of little
efficacy and in fact may highlight the thing that we are all
trying to minimize.” Over Westlake Properties’ objection, the
trial court denied the motion for mistrial and instructed the
jury that the “question was an improper question, it should not
have been asked, and I am telling you now to just disregard the
fact that that question was asked and do not consider it in any
way.”
22
During oral argument of this appeal, the Association’s
appellate counsel acknowledged that the question posed to Cooper
was improper and attributed that error to the fault of an
inexperienced associate counsel who had not adequately
researched the issue. Even accepting this explanation, it
appears from the record that the question was posed to impeach
Cooper in a manner calculated to have the most dramatic effect
on the proceedings and with no identifiable purpose other than
to impugn the character of the witness. We condemn in the
strongest possible terms the use of such tactics, even if they
result from the inexperience of counsel rather than the
purposeful disregard of procedural rules. The issue remains,
however, whether the trial court properly denied the motion for
a mistrial.
“The decision whether to grant a motion for a
mistrial is a matter submitted to the trial court's
sound discretion.” Lowe v. Cunningham, 268 Va. 268,
272, 601 S.E.2d 628, 630 (2004) (citation omitted).
Generally, “absent a manifest probability of prejudice
to an adverse party, a new trial is not required when
a court sustains an objection to an improper remark or
question by counsel and thereafter instructs the jury
to disregard the remark or question.” Id. at 272, 601
S.E.2d at 630. However, “when the prejudicial effect
of an improper remark or question is overwhelming,
such that it cannot be cured by a cautionary
instruction,” a trial court must grant a new trial, if
requested. Id. at 273, 601 S.E.2d at 631. In
determining whether [the remark or question] is so
inherently prejudicial that a cautionary instruction
cannot cure the prejudice, several factors must be
considered. Those factors include “the relevance and
23
content of the improper reference, . . . whether the
reference was deliberate or inadvertent[, and] the
probable effect of the improper reference.” Id. at
273, 601 S.E.2d at 631.
Castle v. Lester, 272 Va. 591, 610-11, 636 S.E.2d 342, 353
(2006).
Westlake Properties notes that in Smith v. Lohr, 204 Va.
331, 336-37, 130 S.E.2d 433, 437 (1963), this Court held that a
trial court erred in overruling a motion for mistrial when a
party was called as an adverse witness for the sole purpose of
impeaching him through evidence of a prior felony conviction.
Our decision in Smith can be distinguished on the ground that
here the trial court did not permit the impeachment question to
be answered and instructed the jury to disregard the question
and not to speculate on the answer that might have been given.
Moreover, the verdict ultimately rendered by the jury does not
suggest that it was influenced by this isolated incident, as
that verdict is wholly in accord with the relevant evidence.
Cooper did not materially deny the negligence of Westlake
Properties and Wayne Yeatts, vice-president of that corporation,
virtually conceded that negligence during his testimony that no
compaction tests were made of the soil used to fill around the
septic tanks and no effort was made to ensure that the final
contour of the slope was achieved as specified by the engineers.
Accordingly, we hold that the trial court, under the particular
24
circumstances of this case, did not abuse its discretion in
denying Westlake Properties’ motion for mistrial and instead
exercising its discretion to issue a curative instruction to the
jury.5
Jury Instruction Issues
The principal point of contention between the parties was
whether the erosion of the slope and the attendant damage to the
septic system had been caused by the alleged negligence in the
construction of the septic system or was the result of unusually
heavy rain during the period preceding the significant erosion
in August 2003.
At the conclusion of all the evidence, the Association
sought to preclude Westlake Properties from arguing that the
damage was solely caused by the unusually heavy rain as an act
of nature otherwise known as a force majeure defense. Relying
upon Cooper v. Horn, 248 Va. 417, 448 S.E.2d 403 (1994), the
Association contended that in order to be entitled to assert
such a defense, Westlake Properties was required to show that no
human agency was a contributing factor in the damage incurred,
5
Westlake Properties’ assignment of error also asserts that
the trial court erred in denying its motion for mistrial on
“other grounds.” We will not address such a general and
unspecific assertion of error. See Yeatts v. Murray, 249 Va.
285, 290-91, 455 S.E.2d 18, 21-22 (1995).
25
and that the heavy rain “ ‘was the sole proximate cause of the
injury.’ ” Id. at 425, 448 S.E.2d at 408 (quoting Southern Ry.
v. Neal, 146 Va. 229, 239, 135 S.E. 703, 706 (1926)) (emphasis
added). The trial court sustained the Association’s motion,
with Westlake Properties noting its objection.
Relevant to this issue, the Association offered and was
granted the following jury instruction:
If you find that the defendants or either of them
are negligent and the negligence of either or both of
them was a proximate cause of the plaintiff’s loss,
then you shall find your verdict for the plaintiff
regardless of the rain.
(Emphasis added).
Westlake Properties objected to this instruction,
contending that “it would be possible for the jury to find from
[the] evidence that neither [of the] defendants were negligent
and that the cause of the slope failure was, in fact, [an]
extreme storm, the rain.” Westlake Properties proffered a
general instruction on superseding cause, which the trial court
refused. Westlake Properties did not proffer a specific
instruction on a force majeure defense.
On appeal, Westlake Properties maintains that the trial
court erred in granting the Association’s jury instruction
because it removed from the jury the determination of causation
by requiring the jury not to consider whether the rain was a
26
proximate cause of the failure of the slope. Thus, according to
Westlake Properties, the jury was left essentially to conclude
that the failure of the slope must have been caused by Westlake
Properties’ negligence.
“There may be more than one proximate cause of an event.”
Molchon v. Tyler, 262 Va. 175, 182, 546 S.E.2d 691, 696 (2001);
Panousos v. Allen, 245 Va. 60, 65, 425 S.E.2d 496, 499 (1993).
While it is self–evident that the rain must have been a
proximate cause of the erosion of the slope, the record evidence
would not have supported a defense by Westlake Properties that
the rain was the sole proximate cause of the failure of the
slope.
By precluding the jury from considering the factor of the
rain, the trial court did not, as Westlake Properties suggests,
direct the jury to find that Westlake Properties was negligent
and that its negligence caused the failure of the slope.
Rather, the instruction properly focused the jury on the
question of whether Westlake Properties was negligent and if so,
whether that negligence was a proximate cause of the erosion of
the slope and the ensuing damage to the septic system.
Accordingly, we hold that the trial court did not err in
granting the instruction in question.
27
Lastly, we turn to the measure of damages issue raised by
Westlake Properties. The trial court granted the Association’s
instruction defining the measure of damages as “the reasonable
cost of repairing the property plus the necessary and reasonable
expenses shown by the evidence to have been incurred by the
[Association] as a result of the damage to the property.”
Westlake Properties objected to this instruction, contending
that the correct measure of damages was the cost to repair and
restore “the septic system substantially in accordance with the
plans and specifications under which the septic system was
originally constructed” as required by the language of the
recorded documents, rather than the cost of the septic system
designed and installed by the contractor and engineers hired by
the Association after the original system failed.
On appeal, Westlake Properties maintains that the
replacement septic system was of superior quality to the system
that was originally designed and that the damages for its
negligence should have been limited to the cost of restoring the
system to its original design. Westlake Properties’ assertion
is unavailing for the simple reason that the uncontested
evidence was that the cost for restoring the septic system as
originally designed would have exceeded the cost of constructing
the new system.
28
“The measure of damages in a negligence action is that
amount necessary to compensate the injured party for the damages
proximately caused by the tortious conduct.” Lochaven Co. v.
Master Pools by Schertle, Inc., 233 Va. 537, 541, 357 S.E.2d
534, 537 (1987). In Lochaven Co., the damage award on a tort
claim was held inadequate because property damage elements shown
to have been proximately caused by the defendant’s conduct were
not compensated in the award. Id. at 543, 357 S.E.2d at 538.
Regarding a claim on a breach of contract theory, a cost measure
of damages was not appropriate because the benefit to be derived
from the complete removal and replacement of an improperly
constructed swimming pool was grossly disproportionate to the
cost of doing so. Id. The evidence in this case, by contrast,
showed that the removal of the original septic system, its
replacement with the newly designed system, and the necessary
repair of the slope was the most cost-effective and beneficial
method of remedying the damages caused by Westlake Properties’
negligence. Accordingly, we hold that the trial court’s
instruction on the measure of damages was the correct statement
of the law under the facts of this case.
CONCLUSION
For these reasons, we hold that there is no error in the
trial court’s judgment confirming the jury’s verdict.
29
Accordingly, the judgment in favor of the Association will be
affirmed.
Affirmed.
30