David and Anne Woodruff v. Harlie Greene, Bldg Off. ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
DAVID C. WOODRUFF AND
ANNE T. WOODRUFF
MEMORANDUM OPINION * BY
v. Record No. 0114-98-2 JUDGE LARRY G. ELDER
DECEMBER 22, 1998
HARLIE E. GREENE, BUILDING OFFICIAL
FOR LOUISA COUNTY, FLETCHER W.
HARKRADER, III, ESQ., BROOKING
BUILDERS, INC. AND STATE BUILDING
CODE TECHNICAL REVIEW BOARD
FROM THE CIRCUIT COURT OF LOUISA COUNTY
Jay T. Swett, Judge
Darren Marshall Hart (Marvin Alan Rosman;
Marvin Alan Rosman & Associates, on briefs),
for appellants.
(Fletcher W. Harkrader, III; Harkrader &
Harkrader, on brief), for appellees Harlie E.
Greene, Building Official for Louisa County
and Fletcher W. Harkrader, III, Esq.
Appellees Harlie E. Greene, Building Official
for Louisa County and Fletcher W. Harkrader,
III, Esq., submitting on brief.
No brief or argument on behalf of appellee
Brooking Builders, Inc.
No brief or argument on behalf of appellee
State Building Code Technical Review Board.
David C. and Anne T. Woodruff appeal the ruling of the trial
court denying their motion under Code § 8.01-271.1 for the
imposition of sanctions against Harlie E. Greene, a building
official for Louisa County, and Greene's attorney, Fletcher W.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Harkrader, III. On appeal, the Woodruffs contend that the trial
court erred in not sanctioning Greene and Harkrader under Code
§ 8.01-271.1 because they (A) misrepresented in their petition
for appeal the record before the State Building Code Technical
Review Board (TRB) and failed timely to withdraw, correct or
revise these misrepresentations, even after the Woodruffs
notified them of same; (B) misstated the law as set out in and
incorporated into the Uniform Statewide Building Code (USBC);
(C) failed to conduct a review of the standard of review on
appeal until after filing their petition for appeal; and
(D) imposed the petition for appeal for the improper purpose of
delaying and increasing the Woodruffs' litigation costs. For the
reasons that follow, we affirm the trial court's denial of the
Woodruffs' motion for sanctions in part, reverse in part and
remand to the trial court for the imposition of sanctions.
Code § 8.01-271.1 provides:
The signature of an attorney or party
constitutes a certificate by him that (i) he
has read the pleading, motion, or other
paper, (ii) to the best of his knowledge,
information and belief, formed after
reasonable inquiry, it is well grounded in
fact and is warranted by existing law or a
good faith argument for the extension,
modification, or reversal of existing law,
and (iii) it is not interposed for any
improper purpose, such as to harass or to
cause unnecessary delay or needless increase
in the cost of litigation. . . .
* * * * * * *
If a pleading, motion, or other paper is
signed or made in violation of this rule, the
court, upon motion or upon its own
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initiative, shall impose upon the person who
signed the paper or made the motion, a
represented party, or both, an appropriate
sanction, which may include an order to pay
the other party or parties the amount of the
reasonable expenses incurred because of the
filing of the pleading, motion, or other
paper or making of the motion, including a
reasonable attorney's fee.
In determining whether one's conduct in signing a document
violated Code § 8.01-271.1, the trial court applies an objective
standard of reasonableness. See Nedrich v. Jones, 245 Va. 465,
471, 429 S.E.2d 201, 204 (1993). Therefore, whether the facts or
law would actually support the judgment sought is not
dispositive, as long as the factual and legal arguments were
objectively reasonable. See id. at 472, 429 S.E.2d at 204.
"However, if it is clear that [the party's] claim had no chance
of success under existing law" and he did not argue for an
extension of the existing law, his conduct should have been
punished. Tullidge v. Board of Supervisors, 239 Va. 611, 614,
391 S.E.2d 288, 290 (1990). On appeal of such a determination to
this Court, we apply an abuse of discretion standard. See
Nedrich, 245 Va. at 472, 429 S.E.2d at 204.
A.
MISREPRESENTATION OF FACTS
The Woodruffs contend Greene and Harkrader misrepresented
the testimony from the prior hearing and that their conduct
constituted failure to conduct a reasonable inquiry into whether
the petition for appeal was well grounded in fact. Greene and
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Harkrader stated repeatedly in the petition for appeal that "[n]o
one has asserted that a drip cap serves as flashing as required
by [CABO § R-503.8]," 1 when, in reality, Greene himself had
testified at the hearing before the TRB that "the piece of wood
mold[ing] with a drip edge" would "qualify as flashing . . . in
accordance [with] 503.8 . . . if it's painted and caulked."
We agree that Greene's and Harkrader's assertions on brief
were at odds with Greene's testimony before the TRB and violated
the provisions of Code § 8.01-271.1. Furthermore, Greene and
Harkrader failed to respond to the Woodruffs' letter of October
9, 1997, which specifically notified them of this inconsistency.
Finally, Greene and Harkrader failed specifically to discuss
this issue on brief to this Court and chose not to present oral
argument on this or any other issue. Although none of these
actions were required, they tend to indicate that Greene's and
Harkrader's actions were more than mere mistake. Therefore, we
agree with the Woodruffs' contention that the trial court abused
its discretion in denying the motion for sanctions on this point.
The Woodruffs also contend that Greene and Harkrader should
be sanctioned for failing to withdraw or amend the petition after
being notified of its misstatements of fact. However, Code
§ 8.01-271.1 deals only with one's original endorsement of a
document and imposes no penalty for failing to withdraw or
1
CABO is an acronym for the 1 & 2 Family Dwelling Code of
the Council of American Building Officials.
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correct it. Therefore, we cannot conclude that the trial court
erred in denying the Woodruffs' motion for sanctions on this
related point.
B.
MISSTATEMENT OF THE SUBSTANTIVE LAW
The Woodruffs contend next that Greene and Harkrader failed
to conduct reasonable inquiry into whether their assertions were
warranted by existing substantive law. Greene and Harkrader
argued repeatedly in the petition for appeal that "the language
of R-503.8 [does not] state[] that flashing is required to be
installed over drip caps" and contended that any decision by the
TRB requiring flashing over drip caps would be "contrary to the
law." However, the Woodruffs cite to the official "Application
and Commentary" accompanying CABO § R-503.8, which provides
examples of flashing and includes a diagram of "flashing
[installed] over drip cap." The Application and Commentary was
made part of the record before the TRB, contend the Woodruffs,
and Greene and Harkrader should have been aware of these
requirements.
We disagree. The relevant commentary to CABO § R-503.8
clearly shows flashing installed over a drip cap as one example
of the proper installation of flashing. However, it remains
arguable that the installation of flashing over a drip cap is not
required by § R-503.8 and the related commentary if the drip cap
has been painted and caulked. Therefore, we cannot conclude that
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the trial court abused its discretion in denying the motion for
sanctions on this issue.
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C.
PERCEPTION OF STANDARD OF REVIEW ON APPEAL
The Woodruffs contend that Greene and Harkrader also failed
to conduct reasonable inquiry regarding whether the appeal was
warranted by existing procedural law. In their motion for
sanctions, the Woodruffs asserted that Greene bore the burden on
appeal of "demonstrating an error of law such that when
considering the record as a whole, a reasonable person
necessarily would come to a different conclusion . . . than the
TRB." They emphasized that "Greene failed even to offer this
standard of review to the [circuit court]" and that, in
withdrawing the appeal, Harkrader admitted to the circuit court
that "we came to the decision this week that we could not meet
the standard of [review on] appeal and that we should withdraw
the appeal." The Woodruffs assert that this statement
constitutes a concession that the appeal was not warranted by
existing law and that Greene and Harkrader failed properly to
evaluate this issue prior to filing the petition for appeal.
We disagree. Although the wiser course in an appeal is to
recite the proper standard of review and to discuss its
application to that particular appeal, we cannot conclude the
failure to do so warrants the imposition of sanctions.
Furthermore, we are unwilling to hold that the withdrawal of a
petition, because of a party's unilateral decision that its
evidence is insufficient to satisfy the standard of review,
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constitutes a concession that the appeal was not warranted by
existing law as that phrase is used in Code § 8.01-271.1.
Finally, we cannot conclude under the facts of this case that
Greene's and Harkrader's appeal to the circuit court was not
"warranted by existing law." As set out above, the issue is not
whether the appeal "actually was warranted by existing law";
rather it was "whether, after reasonable inquiry, [Greene and
Harkrader] could have formed [an objectively] reasonable belief
that the [appeal] was warranted by existing law." See Nedrich,
245 Va. at 471-72, 429 S.E.2d at 204. Therefore, we hold that
the trial court did not abuse its discretion in denying the
motion for sanctions on this issue.
D.
FILING PETITION FOR APPEAL FOR IMPROPER PURPOSE
Finally, the Woodruffs contend that Greene's delay of one
hundred nine days in issuing the notice of violation to Brooking
ordered by the TRB, when coupled with the lack of merit of the
petition and the fact that the Woodruffs notified them of this
lack of merit, shows that Greene and Harkrader filed the petition
for appeal either to impose delay or to increase unduly the
Woodruffs' litigation costs.
Although these things are factors which the trial court was
entitled to consider in determining whether the petition for
appeal was filed for an improper purpose, none compel the
conclusion that Greene and Harkrader entertained any improper
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purpose. Therefore, absent other evidence of improper purpose,
we cannot conclude that the trial court abused its discretion in
denying the Woodruffs' motion for sanctions on these grounds.
For these reasons, we affirm the ruling of the trial court
in part and reverse in part based on our conclusion that Greene
and Harkrader failed to conduct a reasonable inquiry into whether
the appeal was well grounded in fact. We remand to the trial
court for the imposition of sanctions and an award of attorney's
fees associated with the appeal.
Affirmed in part,
reversed in part
and remanded.
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