Old Dominion Iron & Steel Corp. v. Virginia Elec. & Power Co.

• Decision Date: 10 March 1975
• Citation: Old Dominion Iron & Steel Corp. v. Virginia Elec. & Power Co., 212 S.E.2d 715, 215 Va. 658 (1975)
• Parties: OLD DOMINION IRON AND STEEL CORPORATION v. VIRGINIA ELECTRIC AND POWER COMPANY and the City of Richmond.
• Court: Virginia Supreme Court

Page 715

212 S.E.2d 715

215 Va. 658

OLD DOMINION IRON AND STEEL CORPORATION v. VIRGINIA ELECTRIC AND POWER COMPANY and the City of Richmond.

Supreme Court of Virginia.

March 10, 1975.

Julious P. Smith, Jr., Richmond (Robert N. Pollard, Jr., Robert L. Musick, Jr., Williams, Mullen & Christian, Richmond, on brief), for plaintiff in error.

Joseph C. Kearfott, (George D. Gibson, E. Milton Farley, III, Hunton, Williams, Gay & Gibson, Richmond, on briefs), for defendants in error, Virginia Elec. and Power Co.

Albert J. FitzPatrick, Asst. City Atty., for defendant in error, City of Richmond.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

POFF, Justice.

The fundamental question before us is whether Old Dominion Iron & Steel Corporation (Old Dominion) stated a cause of action in its motion for judgment against Virginia Electric and Power Company (Vepco) and City of Richmond, Virginia (the City).

A preliminary question is what properly constitutes the record before us. The final order sustaining the City's demurrer and Vepco's motion for summary judgment, in which the trial court incorporated its letter opinion dated December 13, 1973, was entered on January 25, 1974. On February 15, 1974, Old Dominion filed its notice of appeal and assignments of error, stating expressly that 'it does not intend to hereafter file any transcript, statement of facts, testimony or other incidents of the case.' The clerk of the trial court transmitted the record to this Court on March 11, 1974. Old Dominion filed its petition for a writ of error on May 24, 1974. The City and Vepco filed their briefs in opposition on June 5, 1974, and June 7, 1974, respectively. We awarded a writ on July 26, 1974. On August 2, 1974, Old Dominion designated for printing in the Appendix the following parts of the record transmitted by the Clerk: the motion for judgment; the demurrer; the motion for summary judgment; the letter opinion; the final order; and the notice of appeal and assignments of error. Upon Vepco's motion, the trial court entered an order on August 22, 1974, enlarging the record to include all papers, pleadings, memoranda, and exhibits in support of motions, filed as part of a suit in equity antecedent to the motion for judgment; the final decree in that suit dismissing the cause 'with prejudice'; the transcript of a hearing incorporated in that decree; and the transcript of a hearing on Vepco's motion for summary judgment and the City's demurrer to Old Dominion's motion for judgment. Pursuant to this order, the clerk of the trial court transmitted these additional papers to this Court on August 22, 1974.

Old Dominion requests that the order enlarging the record be reversed and that this appeal be determined upon the record as originally transmitted.

The transcript of the hearing on the motion for summary judgment and demurrer to the motion for judgment was not incorporated in the record as provided in Rule 5:9. Since the original suit in equity was dismissed with prejudice and never appealed, and since none of its pleadings, motions, memoranda, exhibits, transcripts, or orders was introduced as exhibits in the proceedings on the motion for judgment, none is part of the record on appeal as defined by Rule 5:8. While the trial court is empowered by Rule 5:10 to decide disagreements among counsel or between counsel and the clerk, the trial court has no power by Rule or statute to add to the contents of the record on appeal anything not designated in Rule 5:8. When the record has been transmitted in compliance with Rule 5:15 by the clerk of the trial court to the clerk of this Court and a writ of error or appeal has been granted, the record on appeal cannot be enlarged except upon our award of a writ of certiorari as provided in Code § 8--473 (Repl.Vol.1957). The trial court erred in entering the August 22, 1974, order.

The order is reversed, and we will proceed to the consideration of the fundamental issue on the record as originally transmitted. Confining ourselves to that record, we will not notice arguments of the parties based upon facts not stated expressly or by necessary implication.

We look to the motion for judgment for facts and reasonable inferences of facts, for they are taken as confessed when well pleaded. Chippenham Manor v. Dervishian, 214 Va. 448, 201 S.E.2d 794 (1974); Ames v. American Nat. Bank, 163 Va. 1, 176 S.E. 204 (1934).

By deed dated January 29, 1926, Old Dominion's corporate grandfather conveyed to Old Dominion's corporate father 12 acres of land on Belle Isle, an island in the James River in Richmond. By the same deed, the grantor conveyed to Vepco all of its right, title, and interest in the steel highway bridge connecting the island with the north bank of the river. However, the deed provided that Old Dominion and its successors in title could use the bridge in connection with its manufacturing operation conducted on the 12-acre tract, and that Old Dominion and Vepco and their respective successors in title 'shall jointly . . . maintain the same and shall contribute equally . . . towards the cost of maintenance upkeep repair and replacement of said bridge and towards the settlement and discharge of any claims or actions at law, for damage or personal injury to property or persons growing out of the use, maintenance upkeep and repair of said bridge.'

Vepco and Old Dominion, the two grantees in the deed, executed a separate agreement of even date and later recorded both documents on the same date. The agreement acknowledged as binding the provisions of the deed quoted above.

On May 13, 1933, Old Dominion and Vepco entered into another agreement under which Vepco released Old Dominion from its liability respecting the bridge and assumed sole responsibility for the maintenance, repair, and replacement thereof so long as no other adequate roadway connection with the north shore of the river was available.

The 1926 agreement, as amended in 1933, was made for Old Dominion's use, enjoyment, and benefit.

By order entered in condemnation proceedings on September 12, 1968, the trial court vested title in the City to a portion of the 12-acre tract, but, with the City's consent, Old Dominion continued to occupy the condemned land, conduct its business on the 12-acre tract, and use the bridge in connection with its business operation.

About January 15, 1970, the remaining portion of the 12-acre tract, previously acquired by the City, was leased by the City to Old Dominion, and Old Dominion continued to occupy and use the entire tract.

Under an agreement dated March 27, 1972, Vepco agreed to sell and the City agreed to buy certain Vepco holdings on Belle Isle, including the steel bridge. The agreement further provided that Vepco would continue to maintain the bridge as long as Old Dominion continued to occupy the 12-acre tract, with the understanding that the City would consummate acquisition and occupancy of that property as soon as possible. This agreement was in confirmation of Vepco's duties with respect to the bridge and was made for Old Dominion's use, enjoyment, and benefit.

On June 23, 1972, the bridge was destroyed by the flood waters of tropical storm 'Agnes' and has not been replaced.

Having recited these allegations of fact in its motion for judgment, Old Dominion alleged that '(a)s a result of the failure of either Vepco or the City to properly maintain, keep up and repair the bridge by reason of which failure the bridge was destroyed as aforesaid and as a result of the failure of either Vepco or the City to replace the bridge, all in violation of the duties and obligations of Vepco and the City pursuant to agreements made as aforesaid for Plaintiff's use, enjoyment and benefit, Plaintiff has sustained and will continue to sustain' certain specifically enumerated damages, including the costs of providing alternate methods of access and transportation to and from its plant.

Old Dominion argues that it has alleged standing in three capacities to sue for damages for breach of the covenant to maintain and replace the bridge, Viz., in its capacity as lessee of a portion of the land benefited by the covenants in the deed, in its capacity as condemnee and permissive occupant of another portion of that land, and in its capacity as original promisee in the contract arising from the 1926 agreement, as amended in 1933. Old Dominion argues further that, in its capacity as third party beneficiary of the March 27, 1972, contract between Vepco and the City, it has standing to sue for damages for breach of the contract commitment to maintain the bridge. Finally, Old Dominion contends that, with respect to its standing in each of these capacities, it has alleged a breach of obligation and causally related damages and, thus, has properly pleaded a cause of action against Vepco and the City.

I. Old Dominion As Lessee

The deed contained two covenants, one covenant granting Old Dominion the right to use the bridge (a use in the nature of an easement) and the other covenant requiring Old Dominion and Vepco to maintain and replace the bridge. The parties do not disagree that these covenants run with the land. The bridge is the burdened estate. The 12-acre tract is the benefited estate.

Old Dominion alleged that it leased a parcel of land from the City about January 15, 1970. Reading the motion for judgment as a whole, it appears that this parcel was a portion of the 12-acre tract benefited by the covenants. The terms and tenure of the leasehold are not reflected in the record before us, and we cannot consider the argument advanced by Vepco and the City that Old Dominion's leasehold interest 'was not sufficiently substantial' to give it standing to sue for damages flowing from a breach of the covenants. Nor do we mean to imply that we would accept the argument if the record reflected the terms and tenure of the leasehold.

We consider only whether a leasehold interest acquired...