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WOODRUFF et al. v. GREENE et al.


WOODRUFF et al. v. GREENE et
al.

(unpublished)


DECEMBER 22, 1998

Record No. 0114-98-2

 

DAVID C. WOODRUFF

AND

ANNE T. WOODRUFF

v.

HARLIE E. GREENE, BUILDING
OFFICIAL FOR LOUISA COUNTY, FLETCHER W. HARKRADER, III, ESQ.,
BROOKING

BUILDERS, INC.

AND

STATE BUILDING CODE
TECHNICAL REVIEW BOARD

 

Jay T. Swett, Judge

Argued at Richmond,
Virginia

Present: Judges Elder,
Lemons and Senior Judge Cole

MEMORANDUM OPINION[1] BY JUDGE LARRY
G. ELDER

FROM THE CIRCUIT COURT OF
LOUISA COUNTY

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 Sect. 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. Harkrader, III.
On appeal, the Woodruffs contend that the trial court erred in
not sanctioning Greene and Harkrader under Code
Sect. 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 Sect. 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 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
Sect. 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 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
Sect. R-503.8],"
[2] 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
Sect. 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 Sect. 8.01-271.1 deals
only with one’s original endorsement of a document and imposes no
penalty for failing to withdraw or 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 Sect. 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 Sect. 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
Sect. R-503.8 and the related commentary if the drip cap has
been painted and caulked. Therefore, we cannot conclude that the
trial court abused its discretion in denying the motion for
sanctions on this issue.

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

WOODRUFF et al. v. GREENE et al. (unpublished) DECEMBER 22, 1998 Record No. 0114-98-2   DAVID C. WOODRUFF AND ANNE T. WOODRUFF v. HARLIE E. GREENE, BUILDING OFFICIAL FOR LOUISA COUNTY, FLETCHER W. HARKRADER, III, ESQ., BROOKING BUILDERS, INC. AND STATE BUILDING CODE TECHNICAL REVIEW BOARD   Jay T. Swett, Judge Argued at Richmond, Virginia …

Review Overview

0
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, constitutes a concession that the appeal was
not warranted by existing law as that phrase is used in Code
Sect. 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 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.

 

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.

[2] CABO is an acronym for the
1 & 2 Family Dwelling Code of the Council of American
Building Officials.

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