Manchester Oaks Homeowners Ass'n v. Batt

PRESENT: All the Justices

MANCHESTER OAKS HOMEOWNERS
ASSOCIATION, INC.
OPINION BY
v. Record No. 111949 JUSTICE WILLIAM C. MIMS
September 14, 2012
PATRICK K. BATT, ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge

In this appeal, we consider whether a homeowners’

association violated its declaration when it assigned parking

spaces in a common area to lot owners on an unequal basis. We

also consider whether an award of attorneys’ fees to the

prevailing party in an action to enforce the declaration was

proper under Code § 55-515(A).

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

The Manchester Oaks subdivision encompasses 57 townhouses,

30 of which were constructed with a garage and driveway (“the

Garaged Lots”) and 27 of which were constructed with an

additional bedroom and bathroom in lieu of a garage (“the

Ungaraged Lots”). The subdivision also includes a common area

with 72 parking spaces.

The subdivision’s developer incorporated the Manchester

Oaks Homeowners Association, Inc. (“the HOA”). Through a

Declaration of Covenants, Conditions and Restrictions (“the

Declaration”) recorded in 1989 pursuant to the Property Owners’
Association Act, Code § 55-508 et seq., (“the Act”), the

developer conferred certain rights and obligations on each lot

owner and invested the HOA with certain powers and duties

consistent with the Act.

Section 3.1 of the Declaration provides that “[e]very

Owner shall have a right and easement of enjoyment in and to

the Common Area, which shall be appurtenant to and shall pass

with the title to each such Owner’s Lot,” subject to

enumerated conditions. 1 One such condition, set forth in

Section 3.1.7, reserved to the HOA “[t]he right . . . to

establish rules and regulations governing the use of the

Common Area, including the right set forth in Section 2.3.17

[sic] to establish rules and regulations governing the parking

lots within the Common Area.” 2 Section 2.3.18 specifically

conferred on the HOA

the right to designate a maximum of two parking
spaces within the Common Area for the exclusive
use of the Owner of each Lot; provided, however,
that nothing herein shall require the [HOA] to
make any such designations or to ensure that the
parking spaces are available for the use of any
particular Owner of a Lot, nor shall the [HOA] be

1
While “Common Area” is a defined term in the Declaration,
the definition merely describes the geographic territory set
aside “for the common use and enjoyment” of the owners.
2
The HOA’s power to “make and enforce rules and regulations
governing the use of parking areas within the Common Area”
actually is set forth in Section 2.3.18. The parties agree that
the reference to Section 2.3.17 in Section 3.1.7 was a
scrivener’s error.

2
 required to supervise or administer the use of
the parking lots located in the Common Areas.

Patrick K. Batt, Rudolph J. Grom, and James R. Martin, Jr.,

(collectively, “the Plaintiffs”) each own a Garaged Lot. Batt

and Grom each purchased their lots in 1990, before construction

in the subdivision was complete. At that time, the roads were

not finished or marked and residents parked wherever they chose.

In either 1993 or 1994, the developer began marking some parking

spaces in the common area as “reserved” and assigning two to

each Ungaraged Lot. The remaining 18 parking spaces were

designated as “visitor” parking.

Martin purchased his lot in 2006. Although he saw that the

parking spaces were marked either “reserved” or “visitor,” there

was no indication of the purpose for which the spaces marked

“reserved” were designated.

From the time the parking spaces were marked until 2009,

visitor parking was available to all lot owners on a first-come,

first-served basis. However, in June 2009 the HOA posted a

visitor parking policy on its website. Under the policy, each

lot owner received one visitor parking permit. Any vehicle not

displaying a permit while parked in the spaces designated

visitor parking would be towed.

In July 2009, the Plaintiffs filed a complaint in the

circuit court seeking, among other things, a declaratory

3
judgment that the policy was invalid and permanent injunctive

relief enjoining its enforcement. Thereafter, the HOA

stipulated that it would no longer restrict each lot owner to

one visitor permit, effectively restoring the status quo ante

and reopening visitor parking to all lot owners on a first-come,

first-served basis.

In December 2009, the HOA purportedly adopted an amendment

to the Declaration (“the Amendment”). The Amendment added

Section 1.16, which created the defined term “Reserved Common

Area” and set forth its meaning as “a portion of the Common Area

for which the Board of Directors of the [HOA] has granted a

license to an Owner of a Lot in accordance with the terms of the

Declaration.” The Amendment also altered Section 2.3.18 to

confer on the HOA

the right to designate portions of the Common
Area as Reserved Common Area, which includes the
right to designate two parking spaces within the
Reserved Common Area for the exclusive use of the
Owner of each [Ungaraged Lot] on a non-uniform
and preferential basis; provided, however, that
nothing herein shall require the [HOA] to ensure
that the parking spaces are available for the use
of any particular Owner of a Lot, nor shall the
[HOA] be required to supervise or administer the
use of the parking lots located in the Common
Areas.

The Amendment further added Section 3.1.10, vesting in the HOA’s

board of directors the power “to grant non-uniform licenses in

the Common Area to an Owner of [an Ungaraged Lot] by designating

4
portions of the Common Area as Reserved Common Area . . .

includ[ing] the right to designate parking spaces for the

exclusive use of the Owners of [Ungaraged Lots] on a non-uniform

and preferential basis.”

In June 2010, the Plaintiffs filed an amended complaint

alleging that the unequal treatment resulting from the HOA’s

assignment of parking spaces only to Ungaraged Lots violated the

Declaration. They also alleged that the individual members of

the HOA’s board of directors had breached fiduciary duties owed

to them as members of the HOA, a non-stock corporation. The

Plaintiffs sought only an award of compensatory damages for

breach of contract and breach of fiduciary duties, and an award

of costs, expenses, and attorneys’ fees pursuant to Code § 55-

515(A). 3 The HOA filed an answer asserting, among other things,

an affirmative defense that the Plaintiffs’ claim was barred by

the Amendment. The HOA subsequently reiterated its position in

a plea in bar. In response, the Plaintiffs contended that the

Amendment was invalid because it had been improperly adopted.

Following a bench trial, the circuit court determined that

the Amendment was invalid on six grounds. First, it effected a

3
In contrast to the original complaint, the Plaintiffs did
not seek declaratory or injunctive relief in the amended
complaint. In addition, the claims against the individual board
members for breach of fiduciary duties were subsequently
nonsuited. Accordingly, the only claim before the circuit court
at trial was for breach of contract and the only relief sought
was an award of compensatory damages.

5
partition of the common area and therefore required written

approval by two-thirds of the lot owners and their mortgagees.

Second, the use of proxies in its adoption was not expressly

authorized by the Declaration. Third, notice of the meeting at

which it was considered had not been sent at least 15 days prior

to the meeting, as required by the Declaration. Fourth, prior

to its adoption, the HOA’s president sent false information to

the members. Fifth, its terms were internally inconsistent.

Sixth, it effected a forfeiture or revocation of the recorded

easement rights of the owners of Garaged Lots in derogation of

their titles.

Having determined that the Amendment was invalid, the

circuit court then ruled that the reservation of parking spaces

in the common area for use solely by owners of Ungaraged Lots

violated the Declaration by discriminating against Garaged Lot

owners and giving them unequal access to the common area.

Specifically, the court ruled that Section 3.1 of the

Declaration gives all lot owners an equal right of use and

enjoyment of the common area. Therefore, consistent with this

Court’s holding in Sully Station II Community Ass’n, Inc. v.

Dye, 259 Va. 282, 289, 525 S.E.2d 555, 559 (2000), any

assignment of parking spaces undertaken pursuant to Section

2.3.18 must benefit all lot owners equally without regard to the

type of lot owned.

6
 In considering the evidence of damages, the circuit court

ruled that each lot owner held equitable title in the common

area and therefore could testify as to its value. It likewise

ruled that the HOA held legal title in the common area and its

board members could testify as to its value as well. It also

ruled that the HOA website was a publication of the HOA.

An entry on the website written by a board member indicated

that the loss of assigned parking in the common area would

decrease the value of Ungaraged Lots by $50,000 to $70,000.

Because the Ungaraged Lots would be regarded as comparable

properties in calculating the fair-market value of the Garaged

Lots at resale, according to the website, the Garaged Lots would

lose $50,000 to $70,000 in value also.

The circuit court ruled that the opinion expressed on the

HOA’s website was a party admission that loss of access to

parking in the common area reduced a lot’s value by $25,000 to

$35,000 per space. Under Section 2.3.18 of the Declaration, the

court continued, the HOA could assign a maximum of two spaces

per lot provided the assignment benefited all lots equally, as

required by Section 3.1. However, because the common area

contained only 72 parking spaces, the HOA could properly assign,

at most, one space per lot. Because the HOA chose to assign two

spaces to each Ungaraged Lot instead of the one space to all

lots equally, the HOA improperly deprived each Garaged Lot owner

7
of one space. Accordingly, the court ruled that Batt and Grom

each were entitled to compensatory damages of $25,000, the lower

value of each parking space according to the website entry.

Because Martin had purchased his lot in 2006, after two

parking spaces were reserved and assigned to each Ungaraged Lot,

the circuit court ruled that the calculation of lost value did

not apply to him. However, based on his testimony regarding the

calculation of the square footage of his lot and his real

property tax assessment, the court determined that he had paid

$37.50 per month in real property taxes on a parking space in

the common area. 4 Ruling that the assignment of parking spaces

to Ungaraged Lots effected a forfeiture of Martin’s right-of-use

easement in the common area and, consequently, a loss of value

equivalent to the apportioned tax assessment, the court awarded

Martin compensatory damages of $1762.50 – $37.50 per month for

each of the 47 months Martin had owned his lot. 5

In addition, the circuit court awarded each Plaintiff

compensatory damages for assessments paid to the HOA for

maintenance of the common area. Grom, a former board member,

testified that $15 per month from the total monthly assessment

4
According to Martin’s testimony, his calculation resulted
in a monthly payment of $35.70, not $37.50. However, no party
assigns error to the discrepancy and we adopt the circuit
court’s unchallenged determination.
5
The court ruled that any loss of value by Batt and Grom
attributable to forfeiture of their easement rights was subsumed
by the $25,000 calculation of lost value.

8
levied by the HOA was spent on maintaining the common area. The

court accordingly calculated that Martin was entitled to an

additional award of $705 – $15 per month for 47 months--and Batt

and Grom were each entitled to an additional award of $2355. 6

Finally, the circuit court ruled that the Plaintiffs were

the prevailing parties within the meaning of Code § 55-515(A)

and therefore were entitled to an award of costs and attorneys’

fees. The Plaintiffs adduced evidence of $191,445.19 in fees

plus $3267.50 in expert witness costs. The HOA objected that

the Plaintiffs were not the prevailing party on the nonsuited

claim for breach of fiduciary duties or the abandoned action for

declaratory judgment and injunctive relief and therefore were

not entitled to costs and fees arising from them. The

Plaintiffs identified $5767 in fees attributable to those

claims, and the court awarded them $188,840.69.

We awarded the HOA this appeal.

II. ANALYSIS

A. ASSIGNING PARKING SPACES IN THE COMMON AREA

The HOA first challenges the circuit court’s interpretation

of the Declaration and its conclusion that parking in the common

6
The court also awarded, in the alternative to the
cumulative awards for loss of value and common area maintenance
assessments, nominal damages of $10 to each Plaintiff but this
alternative award was not included in the final order. We
therefore do not consider it. See Moreau v. Fuller, 276 Va.
127, 137, 661 S.E.2d 841, 847 (2008) (stating that courts speak
only through their written orders).

9
area must be assigned to all lot owners equally if assigned at

all. A declaration pursuant to the Act is “a contract entered

into by all owners” of the lots in the subdivision it governs.

Sully Station, 259 Va. at 284, 525 S.E.2d at 556 (internal

quotation marks omitted). Accordingly, we review the circuit

court’s interpretation of the Declaration de novo. See Uniwest

Constr., Inc. v. Amtech Elevator Servs., 280 Va. 428, 440, 699

S.E.2d 223, 229 (2010).

The HOA argues that nothing in the Declaration requires it

to assign parking equally. Section 2.3.18 allows it “to

designate a maximum of two parking spaces within the Common Area

for the exclusive use of the Owner of each Lot” but this

provision also expressly absolves it of any requirement “to

ensure that the parking spaces are available for the use of any

particular Owner of a Lot.” Therefore, the HOA asserts that

under this provision it could assign any particular lot owner

one, two, or no parking spaces in the Common Area, while

concomitantly assigning a different number of spaces to another

lot owner. Accordingly, the HOA contends Sully Station is

distinguishable because in that case the association’s

declaration expressly required any licensing of the use of the

common area to be “on a uniform, non-preferential basis,” 259

Va. at 285, 525 S.E.2d at 557, but there is no such requirement

in the Declaration here. We disagree.

10
 When a court interprets a contract, the words that the

parties used are given their usual, ordinary, and popular

meaning. Uniwest Constr., Inc., 280 Va. at 440, 699 S.E.2d at

229. Although the HOA argues that nothing in the Declaration

requires that parking spaces in the common area be assigned

equally, equality is inherent in the definition of a common

area. A common area is defined as “[a]n area owned and used in

common by the residents of a condominium, subdivision, or

planned-unit development.” Black’s Law Dictionary 311 (9th ed.

2009) (emphasis added). “In common” means “[s]hared equally

with others, undivided into separately owned parts.” Id. at 833

(emphasis added). Accordingly, the HOA must assign parking

spaces in the common area to all lot owners equally, if at all,

unless the Declaration expressly provides otherwise. Nothing in

the original Declaration does so, including its definition of

“Common Area.” Consequently, Sully Station controls the outcome

on this issue.

The HOA argues that this interpretation renders meaningless

its power under the Declaration to assign “a maximum of two”

parking spaces in the common area because it contains only 72

spaces and there are 57 lots. We disagree. The phrase “a

maximum of two” includes one and none, both of which are

permissibly equal assignments of parking in the common area in

its current, 72-space configuration. In addition, nothing in

11
the Declaration prohibits the HOA from “annexing” additional

land as common area from which more parking spaces could be

assigned. To the contrary, Section 10.6 of the Declaration

expressly confers such annexation power. 7 Therefore, our

decision that all lot owners must be treated equally by any

assignment of parking in the common area has no effect on the

meaning of the phrase “a maximum of two.”

The HOA likewise argues that this interpretation renders

meaningless the language in Section 2.3.18 absolving it of the

obligation “to ensure that the parking spaces are available for

the use of any particular Owner of a Lot.” We again disagree.

The recited language merely discharges the HOA from a duty to

enforce parking assignments. Rather, enforcement is the

prerogative of the assignees. In short, the language means that

if a vehicle is improperly parked in an assigned parking space,

the HOA is not responsible for towing the vehicle away. Our

decision does not shift that responsibility to the HOA.

Accordingly, the circuit court did not err in ruling the

Declaration requires that parking spaces in the common area be

assigned equally among all lot owners. We will affirm that

portion of its judgment.

7
We consider the authority of the HOA to take such action
rather than whether it is likely to do so.

12
 B. THE VALIDITY OF THE AMENDMENT

The HOA next challenges the circuit court’s determination

that the Amendment is invalid. Specifically, it assigns error

to the court’s rulings that the Declaration does not authorize

the use of proxies to enact amendments, that the Amendment

effected a partition of the common area and therefore required

written approval by two-thirds of the lot owners and their

mortgagees, and that the Amendment effected a forfeiture or

revocation of the recorded easement rights of the owners of

Garaged Lots in derogation of their titles. However, these

assignments of error contest only three of the six bases for the

court’s ruling.

It is well-settled that a party who challenges the ruling

of a lower court must on appeal assign error to each articulated

basis for that ruling. United Leasing Corp. v. Thrift Ins.

Corp., 247 Va. 299, 307-08, 440 S.E.2d 902, 907 (1994) (failure

to assign error to an independent ground supporting the circuit

court’s ruling “barred any appellate relief that might otherwise

have been available” on the ground challenged by the appellant);

see also Parker-Smith v. Sto Corp., 262 Va. 432, 441, 551 S.E.2d

615, 620 (2001) (“Since the court had an independent basis for

[its ruling] that is not the subject of an assignment of error,

we cannot consider the arguments advanced by” the appellant.);

Rash v. Hilb, Rogal & Hamilton Co., 251 Va. 281, 286, 467 S.E.2d

13
791, 795 (1996) (“[W]e cannot consider these arguments advanced

by the [appellant] because there is an independent basis to

support the [ruling below] on these issues and that basis has

not been challenged on appeal.”). Just as “[w]e cannot review

the ruling of a lower court for error when the appellant does

not bring within the record on appeal the [evidentiary] basis

for that ruling,” Prince Seating Corp. v. Rabideau, 275 Va. 468,

470, 659 S.E.2d 305, 307 (2008), we cannot review it when the

appellant does not assign error to every legal basis given for

it. “[O]therwise, ‘an appellant could avoid the adverse effect

of a separate and independent basis for the judgment by ignoring

it and leaving it unchallenged.’ ” Johnson v. Commonwealth, 45

Va. App. 113, 116-17, 609 S.E.2d 58, 60 (2005) (quoting San

Antonio Press v. Custom Bilt Machinery, 852 S.W.2d 64, 65 (Tex.

App. 1993)).

However, the mere fact that the HOA has not assigned error

to each basis for the circuit court’s ruling does not end the

inquiry. Rather, as the Court of Appeals has noted,

we still must satisfy ourselves that the
alternative holding is indeed one that (when
properly applied to the facts of a given case)
would legally constitute a freestanding basis in
support of the [lower] court’s decision. . . .
But, in making that [evaluation], we do not
examine the underlying merits of the alternative
holding – for that is the very thing being waived
by the appellant as a result of his failure to
[assign error to it] on appeal.

14
Id. at 117, 609 S.E.2d at 60. Where, as here, an appellant’s

assignments of error leave multiple bases for the challenged

ruling uncontested, our review is satisfied by a determination

that any one of them provides a sufficient legal foundation for

the ruling.

In this case, the circuit court determined that the meeting

at which the Amendment was adopted was improper because the HOA

provided inadequate notice under the Declaration. Without

reviewing the correctness of that determination, id., we are

satisfied that, if correct, it would render the Amendment

invalid because a meeting of a corporation held upon inadequate

notice is an improper meeting and the corporate acts undertaken

therein are invalid as a matter of law. Noremac, Inc. v. Centre

Hill Court, Inc., 164 Va. 151, 166-67, 178 S.E. 877, 881-82

(1935). Accordingly, this ground forms a separate and

independent basis to affirm the circuit court’s ruling that the

Amendment was invalid and we will not reverse it.

C. DAMAGES

The HOA next challenges the circuit court’s award of

compensatory damages. “Factual findings of a trial court are

entitled to the same weight as a jury verdict and will not be

set aside unless they are plainly wrong or without evidence to

support them.” Riverside Owner, L.L.C. v. City of Richmond, 282

Va. 62, 75, 711 S.E.2d 533, 540 (2011). This Court “view[s] the

15
evidence and all reasonable inferences fairly deducible from it

in the light most favorable to the prevailing party at trial,”

and “review[s] matters of law de novo.” Bennett v. Sage Payment

Solutions, Inc., 282 Va. 49, 54, 710 S.E.2d 736, 739 (2011)

(quoting Syed v. ZH Technologies, Inc., 280 Va. 58, 68, 694

S.E.2d 625, 631 (2010)).

In a claim for breach of contract, proof of damages is an

essential element and a plaintiff’s failure to prove it requires

that the action be dismissed. Collelo v. Geographic Servs., 283

Va. 56, 72, 727 S.E.2d 55, 62 (2012); Sunrise Continuing Care,

LLC v. Wright, 277 Va. 148, 156, 671 S.E.2d 132, 136 (2009).

Further, the plaintiff bears “the burden of proving with

reasonable certainty the amount of damages and the cause from

which they resulted; speculation and conjecture cannot form the

basis of the recovery. Damages based on uncertainties,

contingencies, or speculation cannot be recovered.” Shepherd v.

Davis, 265 Va. 108, 125, 574 S.E.2d 514, 524 (2003) (internal

citations and quotation marks omitted). This burden requires

the plaintiff “to furnish evidence of sufficient facts and

circumstances to permit the fact-finder to make at least an

intelligent and probable estimate of the damages sustained.”

Dillingham v. Hall, 235 Va. 1, 4, 365 S.E.2d 738, 739 (1988)

(internal quotation marks omitted). “Proof with mathematical

precision is not required, but there must be at least sufficient

16
evidence to permit an intelligent and probable estimate of the

amount of damage.” Id. at 3-4, 365 S.E.2d at 739 (emphasis and

internal quotation marks omitted).

The circuit court found that the Plaintiffs had suffered

compensatory damages arising from the parking space assignments.

In doing so, it relied primarily on the calculation from the

website entry that Ungaraged Lots would lose $50,000 to $70,000

if no parking spaces were assigned to their owners’ use. It

extrapolated that if Ungaraged Lots lost $50,000 to $70,000 when

deprived of the assignment of two spaces (i.e., $25,000 to

$35,000 per space), Garaged Units must lose the equivalent

amount when deprived of the single space that their owners would

have been assigned if the HOA had treated all lot owners

equally. But this treats the assignment of parking spaces as a

zero-sum game in which any increase in the value of Ungaraged

Lots from assigning parking spaces necessarily reduces the value

of Garaged Lots proportionally.

This perspective is refuted by the evidence in the record.

The website entry and witness testimony, including that of the

website entry’s author, established that rather than decreasing

the Garaged Lots’ value, assigning two parking spaces to

Ungaraged Lots actually increased the Garaged Lots’ value

because the assignment increased the value of the Ungaraged Lots

and Ungaraged Lots were considered comparable units in

17
determining the value of Garaged Lots at resale. Accordingly,

rather than increasing the value of some lots at the expense of

others, as in a zero-sum game, the parking space assignment was

in effect a rising tide lifting all ships. 8

Other evidence adduced by the Plaintiffs at trial

purporting to establish a diminution of the value of their lots

was insufficient to meet their burden. At best, it established

the replacement value of a parking space in the common area.

But we have said that “[d]iminution in value of real property is

not replacement value.” Campbell County v. Royal, 283 Va. 4,

26, 720 S.E.2d 90, 101 (2012). Rather, “[t]he correct measure

of damages . . . is undoubtedly the diminution in value of the

property by reason of the change, or the difference in value

before and after the change.” Id. at 25, 720 S.E.2d at 101

8
The circuit court’s view also exemplifies the fallacy of
denying the antecedent in propositional logic. Denial of the
antecedent occurs when reasoning that, “If P, then Q. Not P.
Therefore, not Q.” See Ruggero J. Aldisert, Logic for Lawyers:
A Guide to Clear Thinking 158 (3d ed. 1997). In this case, the
proposition is that if the HOA assigns parking spaces (“P”),
then the property value of the assignee lots increases (“Q”).
The HOA did not assign parking spaces to the Garaged Lots (“not
P”), therefore the property values of Garaged Lots did not
increase (“not Q”). Accordingly, the proposition that any
increase in the value of Ungaraged Lots attributable to the
parking assignment necessitated a proportional decrease in the
value of Garaged Lots is not a reasonable inference fairly
deducible from the evidence.

18
(quoting Town of Galax v. Waugh, 143 Va. 213, 229, 129 S.E. 504,

509 (1925)). 9

With respect to Batt and Grom, Grom testified that Garaged

Lots originally cost $6000 more than Ungaraged Lots. However,

Batt testified that the higher price was attributable to the

cost of additional materials associated with Garaged Lots

compared to Ungaraged Lots, such as the concrete necessary for

the driveway. Moreover, they have adduced no evidence of the

value of their lots before the parking space assignment or the

value of their lots after spaces were marked reserved and

assigned to Ungaraged Lots in 1993 or 1994. Accordingly, any

loss of value now cannot be attributed with reasonable certainty

to the parking space assignment. Cf. Shepherd, 265 Va. at 125,

574 S.E.2d at 524 (The plaintiff must prove “with reasonable

certainty the amount of damages and the cause from which they

resulted.” (emphasis added) (internal quotation marks omitted)).

Thus there is no evidence in the record supporting the

award of compensatory damages for diminution of property value.

That portion of the circuit court’s judgment must be reversed.

The HOA also contends that the circuit court’s award of

other compensatory damages was improper. Specifically, the

9
While the holding in Campbell County arose from an inverse
condemnation action, inverse condemnation actions proceed on a
theory of breach of implied contract. See Richmeade, L.P. v.
City of Richmond, 267 Va. 598, 602-03, 594 S.E.2d 606, 608-09
(2004).

19
court determined the HOA had deprived Martin of a parking space

for which he had paid $37.50 per month in real property taxes

and awarded him $1762.50 – 47 months of payments. It also found

that the parking space assignment deprived the Plaintiffs of

their use of the common area that they had paid to maintain as

part of their monthly assessments. Grom, a former member of the

HOA’s board of directors, testified that $15 of each month’s

assessment went to maintaining the common area. The court

therefore awarded compensatory damages of $2355 each to Batt and

Grom and $705 to Martin for such maintenance payments.

The HOA asserts the Plaintiffs may not recover these

damages because they were not identified as damages sought in

their discovery responses. 10 The purpose of discovery is to

10
In its First Set of Interrogatories, the HOA propounded
the following: “Interrogatory 18: Itemize with particularity
all expenses and/or damages incurred by you as a result of the
occurrences alleged in the Complaint. Include an itemization of
all attorney’s fees and costs you have allegedly incurred.” The
Plaintiffs responded:
Subject to and without waiving the foregoing
objections, Plaintiffs state as follows:
Decreased property value related to deprivation
of reserved parking spaces: $70,000 per Plaintiff.
Attorneys’ fees and costs: currently in
excess of $66,000, and increasing with additional
fees incurred through the resolution of this
matter.
Punitive damages in an amount to be determined
by the Court.
The HOA argued to the circuit court that the Plaintiffs’
interrogatory response limited their grounds for recovery in
objections at trial, in supplemental briefing directed by the
court, and in a motion to strike the Plaintiffs’ evidence, and

20
narrow the issues being litigated, the HOA argues, so it was

entitled to rely on the Plaintiffs’ response.

We have said that “a trial court's decision to admit

evidence that is not timely disclosed, rather than to impose the

sanction of excluding it, will not be reversed unless the

court’s action amounts to an abuse of discretion.” Rappold v.

Indiana Lumbermens Mut. Ins. Co., 246 Va. 10, 15, 431 S.E.2d

302, 305 (1993). A court abuses its discretion “when a relevant

factor that should have been given significant weight is not

considered; when an irrelevant or improper factor is considered

and given significant weight; and when all proper factors, and

no improper ones, are considered, but the court, in weighing

those factors, commits a clear error of judgment.” Landrum v.

Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717

S.E.2d 134, 137 (2011).

The purpose of discovery is to narrow the issues being

litigated. Little v. Cooke, 274 Va. 697, 717-18, 652 S.E.2d

129, 141 (2007) (citing Sheek v. Asia Badger, Inc., 235 F.3d

687, 693 (1st Cir. 2000)). However, such narrowing principally

serves the purpose of avoiding surprise. See id. at 718, 652

S.E.2d at 141. Accordingly, we have held that permitting a

plaintiff to raise a new claim at trial that was neither

it renews the argument on appeal in its third assignment of
error.

21
disclosed in discovery nor pled in the complaint constituted an

abuse of discretion because the defendant was prejudiced by the

inability to prepare to defend against the new claim. Id.

With respect to the assessments, there was neither

prejudice nor surprise. The amended complaint included an

allegation that the Plaintiffs had paid assessments, partially

for the purpose of maintaining the common area. The circuit

court therefore did not abuse its discretion in permitting

Grom’s testimony. Conversely, the amended complaint did not

include any allegation that the Plaintiffs had paid taxes on the

common area. That issue therefore was outside the scope of both

the pleadings and discovery. It was raised for first time at

trial and the HOA promptly objected. Accordingly, we will

affirm the circuit court’s award of compensatory damages for the

portion of the assessments attributable to maintenance of the

common area but reverse its award to Martin for apportioned real

property taxes.

D. ATTORNEYS’ FEES

Finally, the HOA argues that Code § 55-515(A) does not

allow the circuit court to award attorneys’ fees to homeowners

if they are the prevailing party in an action they bring against

an association. Alternatively, the HOA argues that the evidence

does not establish that the fees awarded arose from the claim on

which the Plaintiffs were the prevailing party.

22
 The circuit court’s application of Code § 55-515(A)

presents a question of statutory interpretation, which we review

de novo. Eberhardt v. Fairfax County Emps. Ret. Sys. Bd. of

Trs., 283 Va. 190, 194, 721 S.E.2d 524, 526 (2012).

In determining that the Plaintiffs in this case were

entitled to an award of costs and attorneys’ fees under the

statute, the circuit court relied on our construction in White

v. Boundary Ass’n, Inc., 271 Va. 50, 624 S.E.2d 5 (2006). The

court noted that in that case, we determined that homeowners who

sued an association seeking a declaratory judgment were the

prevailing party under Code § 55-515(A) and thus were entitled

to an award of costs and attorneys’ fees. The HOA argues that

the court’s reliance on White is misplaced because we “did not

undertake any analysis of the statute” in that case. We

disagree.

Prior to July 1, 2012, Code § 55-515(A) provided that

[e]very lot owner, and all those entitled to
occupy a lot shall comply with all lawful
provisions of this chapter and all provisions of
the declaration. Any lack of such compliance
shall be grounds for an action or suit to recover
sums due, for damages or injunctive relief, or
for any other remedy available at law or in
equity, maintainable by the association, or by
its executive organ or any managing agent on
behalf of such association, or in any proper
case, by one or more aggrieved lot owners on
their own behalf or as a class action. The
prevailing party shall be entitled to recover
reasonable attorneys' fees and costs expended in
the matter.

23
Former Code § 55-515(A) (2007 Repl. Vol.). The HOA contends

that the first sentence of the statute requires lot owners and

occupants to comply with the declaration, the second sentence

allows certain parties to bring an action against lot owners and

occupants to enforce such compliance, and the third sentence

allows the prevailing party in such an action to recover its

costs and fees. But in this case, the HOA argues, it is neither

an owner nor occupant of a lot, and therefore the Plaintiffs’

action to enforce its compliance with the Declaration is outside

the scope of the statute.

The HOA’s position creates a patent imbalance under which

the question of whether a lot owner or occupant is entitled

under the statute to an award of costs and fees in a suit to

enforce a declaration turns as much on whether an association is

the enforcer or alleged violator as on whether the lot owner or

occupant prevails. Under the HOA’s interpretation of the

statute, when an association sues a non-compliant lot owner or

occupant and wins, it is entitled to the damages and other legal

and equitable relief it may seek and an award of costs and fees

as well. However, where the aggrieved lot owner or occupant

successfully undertakes a seemingly quixotic quest to force an

association to comply with its own declaration, he must bear the

expenses of litigation alone.

24
 We implicitly rejected this inequity six years ago in White

and we expressly reject it today. In White we held that Code

§ 55-515(A) allowed lot owners and occupants as well as

associations to recover litigation expenses resulting from

successful suits to enforce compliance with a declaration. 271

Va. at 57, 624 S.E.2d at 9-10. The General Assembly is presumed

to be aware of our interpretation. Its failure to express a

contrary intention by enacting appropriate legislation is not

only acquiescence but approval. 11 Barson v. Commonwealth, 284

Va. 67, 74, 726 S.E.2d 292, 296 (2012). Accordingly, White

controls and Code § 55-515(A) entitles the Plaintiffs to an

award of costs and attorneys’ fees.

Nevertheless, the statute establishes boundaries for the

costs and fees which may be awarded. As we indicated in Ulloa

v. QSP, Inc., 271 Va. 72, 83, 624 S.E.2d 43, 50 (2006), in an

action encompassing several claims, the prevailing party is

entitled to an award of costs and attorneys’ fees only for those

claims for which (a) there is a contractual or statutory basis

for such an award and (b) the party has prevailed. Therefore,

Code § 55-515(A) authorizes an award of costs and fees to the

11
As noted above, the General Assembly amended the statute
effective July 1, 2012. The amendment does not derogate our
judgment in White. To the contrary, it applies only to actions
against a lot owner for nonpayment of association assessments.
2012 Acts ch. 758. The fact that the legislature chose to amend
the statute but declined to supersede White while doing so
further attests that we correctly ascertained its intention.

25
Plaintiffs in this case only on claims that (a) were brought to

enforce the Declaration and (b) they prevailed upon.

The claim for breach of fiduciary duties satisfies neither

criterion. While the claim for declaratory and injunctive

relief satisfies the first, it does not satisfy the second

because it was abandoned by its omission from the amended

complaint. However, the breach of contract claim satisfies both

criteria and the Plaintiffs therefore are statutorily entitled

to an award of costs and fees on it.

Still, the Plaintiffs bear the burden of establishing the

amount of costs and fees arising from the breach of contract

claim for which the statute entitles them to an award. Ulloa,

271 Va. at 83, 624 S.E.2d at 50. The HOA argues that the

evidence does not support the circuit court’s award of

$188,840.69 because the Plaintiffs failed to explain how the sum

could arise solely from the single claim on which they

prevailed. 12

12
The HOA also argues that the Plaintiffs’ invoices and
affidavit regarding attorneys’ fees were not admitted into
evidence. However, it did not object to their consideration by
the circuit court at the attorneys’ fees hearing. Rather, the
record reflects only that the HOA objected to the Plaintiffs’
attempt to question their expert witness using the HOA’s
invoices because they had not been admitted. In addition, the
HOA acknowledged that the Plaintiffs were submitting their claim
for attorneys’ fees on affidavits, invited the circuit court to
review certain items listed in the invoices, and its expert
testified that he had reviewed the Plaintiffs’ submissions in

26
 As we noted in Ulloa, “[t]he amount of the fee award rests

within the sound discretion of the trial court,” 271 Va. at 82,

624 S.E.2d at 49, and we therefore will not reverse it absent an

abuse of that discretion. Northern Va. Real Estate, Inc. v.

Martins, 283 Va. 86, 117, 720 S.E.2d 121, 137 (2012). As noted

above, a court abuses its discretion “when a relevant factor

that should have been given significant weight is not

considered; when an irrelevant or improper factor is considered

and given significant weight; and when all proper factors, and

no improper ones, are considered, but the court, in weighing

those factors, commits a clear error of judgment.” Landrum, 282

Va. at 352, 717 S.E.2d at 137.

We set forth the factors to be considered when determining

an award of attorneys’ fees in Chawla v. BurgerBusters, Inc.,

255 Va. 616, 499 S.E.2d 829 (1998). They include, among other

things, “the time and effort expended by the attorney, the

nature of the services rendered, the complexity of the services,

the value of the services to the client, the results obtained,

whether the fees incurred were consistent with those generally

charged for similar services, and whether the services were

necessary and appropriate.” Id. at 623, 499 S.E.2d at 833.

preparing his testimony. Accordingly, this argument has not
been preserved for appeal. Rule 5:25.

27
Each of the parties argued these factors to the circuit court. 13

We therefore are satisfied that the court considered the

relevant factors without giving significant weight to any

irrelevant improper factor.

In considering whether the circuit court nevertheless made

a clear error of judgment, we note that the Plaintiffs’ expert

witness testified that the claims for declaratory and injunctive

relief and for breach of contract were inseparable because they

both involved the HOA’s powers under the Declaration. The

breach of contract claim largely subsumes the claim for a

declaratory judgment because the circuit court was required to

ascertain what the Declaration required in order to determine

whether the HOA had breached it. Similarly, the HOA’s expert

witness testified that no entries in the Plaintiffs’ invoices

were associated with the claim for breach of fiduciary duties

after the filing of the complaint. Finally, the Plaintiffs

identified the entries on their invoices associated with the

fiduciary duty claim, including the time spent on preliminary

research, preparing the complaint, negotiating settlement, and

preparing and filing the nonsuit of that claim. They excluded

those entries, which amounted to $5767, from the amount of

attorneys’ fees sought. We therefore are satisfied that the

13
The court also considered the effect of false evidence by
the HOA in protracting the length of trial.

28
circuit court did not make a clear error of judgment in awarding

$188,840.69.

Accordingly, we find the circuit court did not err in

ruling that Code § 55-515(A) entitled the Plaintiffs to an award

of costs and attorneys’ fees on the breach of contract claim.

Further, it did not abuse its discretion in determining the

amount of that award. We will affirm that portion of its

judgment.

III. CONCLUSION

For the foregoing reasons, we will affirm the judgment in

part, reverse it in part, and enter final judgment of $2355 to

Batt, $2355 to Grom, and $705 to Martin. We likewise enter

final judgment for the Plaintiffs of $188,840.69 in costs and

attorneys’ fees under Code § 55-515(A). We also will remand the

case to the circuit court for a determination and award of

reasonable costs and attorneys’ fees incurred by the Plaintiffs

subsequent to its entry of the judgment appealed from.

Affirmed in part and final judgment,
reversed in part and remanded.

29