Virginia's Judicial System

Appeals Granted


(Record Number 140313)


The Circuit Court of the City of Waynesboro; H. Franklin, Judge.


Frederick W. Payne and William W. Tanner (Payne & Hodous, L.L.P.) for appellant.

James W. Barkley, Daniel J. Meador, Jr., and Karen M. Stemland (Morin & Barkley LLP) for appellee.

Assignments of Error

  1. The trial court erroneously entered summary judgment because the facts in the record do not support the conclusion that Waynesboro Village “discontinued” (i.e., “abandoned”) its use of the Property for “discount retail stores;” rather, the record viewed in the light most favorable to Waynesboro Village supports the conclusion that the Property has consistently and continuously been used as a location for discount retail stores, and a temporary suspension to redevelop the Property into a modern discount retail shopping center did not operate as discontinuance or abandonment of the use contemplated by the restrictive covenant.
  2. The trial court erroneously interpreted the term “discontinuance” by failing to consider the term’s meaning within the scope, purpose, and intent of the restrictive covenant and the general plan of development, thus making the trial court’s ruling inconsistent with this Court’s decision in Waynesboro Village, L.L.C. v. BMC Props., 255 Va. 75 (1998).

Date Granted