Packett v. Herbert, No. 861146

• Docket Nº: No. 861146
• Citation: 237 Va. 422, 377 S.E.2d 438
• Case Date: March 03, 1989
• Court: Supreme Court of Virginia

Page 438

377 S.E.2d 438 237 Va. 422 Frances D. PACKETT
v.
William C. HERBERT, II, et al. Record No. 861146 Supreme Court of Virginia. March 3, 1989.

Page 440

[237 Va. 423] A. Davis Bugg, Jr., Irvington (Dunton, Simmons & Dunton, White Stone, on briefs), for appellant.

William E. Glover (Russell H. Roberts, Harry T. Taliaferro, III, Warsaw, Roberts & Ashby, Fredericksburg, Smith and Murphy, P.C., Warsaw, on brief), for appellees.

[237 Va. 422] Present All the Justices.

[237 Va. 423] WHITING, Justice.

Averring that the operation of a self-service car wash facility adjacent to her home constituted a nuisance, Frances D. Packett filed this suit in equity against William C. Herbert, II, Marianne Herbert, and Warsaw Super Wash, Inc. (the Herberts) for an injunction and damages. On Packett's motion, she was permitted to file an amended bill of complaint. In Count One, she made a claim for damages arising out of the alleged nuisance, and in Count Two she prayed for an injunction against its continued operation.

The Herberts filed a motion to require a severance of the two counts, and, thereafter, to require Packett to elect "whether to pursue a remedy at law for damages, as stated in Count One, or to pursue an equitable remedy such as an injunction, as stated in Count Two."

[237 Va. 424] According to the order ¹ entered in this suit, Packett advised the chancellor that she had no objection to the motion to sever, ² and she elected to "proceed first

Page 441

with the action at law set forth in Count One, for which a jury trial was demanded." The chancellor denied Packett's "election to proceed first at law" and her request for a jury trial because he "must first find, in a Chancery action, whether a nuisance exists before an action at law can be maintainable."

Relying on the provisions of Code § 8.01-281 ³ and of Rule 1:4(k), ⁴ Packett contends that she can join what she calls her action at law with this suit in equity. Neither the Code section nor the Rule support Packett's contention. Both provide for the assertion of alternative theories of recovery in an equity suit or in an action at law, whether based on legal or equitable grounds, but neither authorizes the assertion of different rights of action, with varying procedural rights, ⁵ in the same proceeding. If we adopted Packett's contention, we would be abolishing the traditional and marked distinction between law and chancery. We declined an invitation to do so in Wright v. Castles, 232 Va. 218, 222, 349 [237 Va. 425] S.E.2d 125, 128 (1986). Because this is a suit in equity and there was no motion for an issue out of chancery, we hold that the chancellor correctly held that he must first determine whether the activities complained of constituted a nuisance.

Packett also complains that the chancellor erred in sustaining each ground of the Herberts' demurrer and in dismissing the suit with prejudice. Count One of the amended bill of complaint claims damages for: (1) an averred impairment to Packett's health; (2) interference with her use of the property; and (3) impairment of the value of the property. Count Two prays for a permanent injunction against the averred nuisance. The amended bill of complaint also avers that

those who patronize the car wash, which is automated and unattended at all times, talk, yell and curse in a loud and unseemly way ..., consume alcoholic beverages ..., use and sell illegal drugs ..., play stereos in their cars at loud and unreasonable volumes, engage in offensive conduct such as urinating in sight of plaintiff's residence, and throwing cans, bottles, wrappers and other trash onto plaintiff's property; moreover, the car wash facilities themselves generate loud noises which are clearly audible in plaintiff's home ... 24 hours a day, seven days a week.

The grounds of the Herberts' demurrer are: (1) they could not be held responsible for the acts of their customers; and (2) the damages demanded were uncertain in origin and amount, and any damage award would subject the Herberts to danger of future litigation for the same or similar damages. Neither ground has merit.

The Herberts cannot...