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In litigation, you can’t always get what you want (especially if you don’t ask)

It’s a fundamental rule in Virginia that the Plaintiff (the person filing a lawsuit) can only recover the relief requested in the Complaint. In a recent unpublished decision, the Virginia Supreme Court reaffirmed the requirement that a party can only get relief if they ask for it.

The Virginia Supreme Court set forth its position in the case of Smith v. Sink. Smith filed a lawsuit asking the trial court to determine that a road on his property was not a public road. If the road was not a public road, then Sink, the Defendant, would be prohibited from using the road.

The trial court agreed with Smith, finding that the road was not a public road. But the trial court went further, ruling that Sink could still use the road because he had acquired a “prescriptive easement.” Smith appealed to the Virginia Supreme Court, arguing that the trial court was wrong because Sink never asked the court to find he had a prescriptive easement.

The Virginia Supreme Court agreed with Smith, stating that the “responsibility for asserting a right or remedy belongs to the party seeking that relief.” Because the prescriptive easement claim had not been pleaded, the trial court was precluded from making such a finding.

In the recent case of Godbolt v. Shenandoah Investments, L.L.C., one of the issues addressed by the Virginia Supreme Court involved the interpretation of the Complaint filed and the relief requested by the Plaintiff.

The Plaintiff lender had alleged that a mistake had been made in the drafting of a deed of trust on the property and asked the court to “fix” that mistake. Indeed, at trial both parties testified that the lender intended “to encumber both the real property and the non-possessory rights to use the adjoining shore land for recreational and agricultural uses,” but the deed of trust did not include that language. Regardless of the testimony, the trial court held that this mistake was not a “scrivener’s error” and refused to reform the deed of trust.

The Plaintiff lender then asked the trial court to determine that as a matter of law, those non-possessory rights were part of the encumbered real estate. The trial court ruled that because the Plaintiff had not asked for that relief in its lawsuit, the trial court could not make a decision on that issue.

The Virginia Supreme Court upheld the trial court’s decision. Because the Plaintiff had not expressly requested that relief in its Complaint, the trial court was without the authority to render judgment.

Lawsuits are time-consuming and expensive. Furthermore, your legal position may change during the course of the litigation. To get to the end of the case, and have a judge rule that your lawsuit does not include a request for the relief you actually want can create a lot of acrimony (among other things). You and your litigation attorney should review your claim in fine detail to make sure that you CAN get what you want.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia


John Tarley

John Tarley

John Tarley

John Tarley

John is the firm's managing partner and chairs the firm's small business, zoning, and litigation practice areas.

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Filed under: Construction litigation, Contributors, General Interest, HOA litigation, John Tarley, Real Estate Litigation, State & Federal Litigation by John Tarley

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