734 S.E.2d 655
Va.2012Background
- Fein and Payandeh own lots in Apple Manor Subdivision; restrictive covenant restricts subdivision and allows re-subdivision only under Fauquier County Subdivision Ordinance as of May 28, 1997; deed of modification executed May 28, 1997 references lots 4R, 7R, 8, 9R; Payandeh sought waivers in 2006 to subdivide four lots into eight; Board approved 2007 text amendment to FCZO and waivers for road standards, subdivision approved Oct. 25, 2007; Fein filed declaratory judgment claiming covenant violated by noncompliance with 1997 zoning ordinance by implication; circuit court granted Payandeh’s summary judgment and denied Fein’s amended motion, then remanded on issue of certain subdivision-ordinance provisions; Fein appealed asserting broader noncompliance with 1997 ordinances and that the amended complaint raised new issues; court ultimately remanded for consideration of subsections (3)(C)(3),(4), and (5).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the covenant impliedly incorporates the 1997 zoning ordinance. | Fein: 'other County Ordinances' includes 1997 FCZO. | Payandeh: no implicit incorporation of zoning in the covenant. | No implicit incorporation; covenant limited to 1997 Subdivision Ordinance. |
| Whether the subdivision violated FCSO § 2-39(3)(C)(3),(4), and (5) as alleged. | Fein: subdivision violated (3)-(5) of 2-39(3)(C). | Payandeh: those arguments were not properly pleaded and should not be considered. | A remand is required to consider (3),(4), and (5) claims; not barred as new theory. |
| Whether Fein’s amended motion for summary judgment introduced a new, unpleaded claim. | Fein’s amended motion amplified the grounds, not adding a new claim. | Payandeh: premises unpleaded; should be barred. | Court erred in denying review of (3)-(5) claims; but the issue of new claim is addressed on remand. |
Key Cases Cited
- Scott v. Walker, 274 Va. 209 (2007) (covenants enforced when parties’ intention is clear; strict construction against those seeking to enforce)
- Ted Lansing Supply Co. v. Royal Aluminum & Constr. Corp., 221 Va. 1139 (1981) (pleadings must state the facts relied upon; relief must accord with pleading)
- Dabney v. Augusta Mut. Ins. Co., 282 Va. 78 (2011) (no judgment based on unpleaded claims)
- Potts v. Mathieson Alkali Works, 165 Va. 196 (1935) (pleadings essential; relief must accord with case as made)