Present: All the Justices
JOSEPH EGAN, SR. OPINION BY v. Record No. 141365 JUSTICE LEROY F. MILLETTE, JR. June 4, 2015 DAVID BUTLER
ABILENE MOTOR EXPRESS CO.
v. Record No. 141372
DAVID BUTLER
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Margaret P. Spencer, Judge
In these appeals we consider whether evidence of work
history and quality of past job performance is probative of
future lost income damages, and whether the evidence introduced
at trial was sufficient to subject a corporate employer to
punitive damages liability.
I. FACTS AND PROCEEDINGS
David Lamont Butler worked as a diesel mechanic at Abilene
Motor Express Company, where Joseph F. Egan, Sr., was Butler's
supervisor. After working at Abilene for three months, Butler
was fired by Egan for unsatisfactory job performance. Although
the circumstances of that termination are subject to differing
accounts by the parties, the situation was undisputedly heated.
The same day that Butler was fired, Egan swore out a
misdemeanor assault and battery complaint against Butler for
events that allegedly occurred immediately after Butler's termination. The following day, Egan told other Abilene
employees that Butler had pushed Egan and that Butler had cut
or stabbed Egan. The misdemeanor assault and battery charge
was dismissed with prejudice several months later.
Based on these circumstances, Butler filed a complaint
against Egan and Abilene alleging one count of malicious
prosecution and one count of defamation. Under both claims
Butler sought compensatory damages, including future lost
income, and punitive damages.
Butler's claims went to a jury trial. After hearing
witness testimony and considering the evidence, the jury
returned a verdict in favor of Butler. On the malicious
prosecution claim, the jury awarded Butler $250,000 in
compensatory damages, and $50,000 in punitive damages against
Egan and $200,000 in punitive damages against Abilene. In
compliance with Code § 8.01-38.1, the circuit court reduced the
punitive damages award against Egan to $38,850 and the punitive
damages award against Abilene to $155,600. On the defamation
claim, the jury awarded Butler $200,000 in compensatory
damages, and $50,000 in punitive damages against Egan and
$150,000 in punitive damages against Abilene. In compliance
with Code § 8.01-38.1, the circuit court reduced the punitive
damages award against Egan to $38,850 and the punitive damages
award against Abilene to $116,700. Apart from reducing the
2 punitive damages awards, the circuit court entered final
judgment on the jury's verdicts against Egan and Abilene.
Egan and Abilene separately filed timely appeals with this
Court.
II. DISCUSSION
A. Future Lost Income
Egan's assignment of error 1 and Abilene's assignment of
error 1 are identical, and read:
The trial court erred when it (1) excluded evidence of Butler's past employment history and (2) when it excluded evidence of the quality of Butler's job performance
1. Standard of Review
"We review a trial court's decision to admit or exclude
evidence using an abuse of discretion standard and, on appeal,
will not disturb a trial court's decision to [exclude] evidence
absent a finding of abuse of that discretion." Harman v.
Honeywell Int'l, Inc., 288 Va. 88, 92, 758 S.E.2d 515, 520
(2014) (internal quotation marks, citation, and alterations
omitted). "In a civil case, the erroneous exclusion of
evidence is reversible error when the record fails to show
plainly that the excluded evidence could not have affected the
verdict." Barkley v. Wallace, 267 Va. 369, 374, 595 S.E.2d
271, 274 (2004).
3 2. The Excluded Evidence Is Probative Of Future Lost Income
At trial, the circuit court denied entry of evidence
pertaining to Butler's work history on the basis that it was
irrelevant to determining Butler's future lost income. The
circuit court also denied entry of evidence pertaining to the
quality of Butler's past job performance. This was error.
"In order to form a reliable basis for a calculation of
future lost income or loss of earning capacity, such evidence
must be grounded upon facts specific to the individual whose
loss is being calculated." Bulala v. Boyd, 239 Va. 218, 233,
389 S.E.2d 670, 677 (1990). "Although mathematical precision
is not required, the plaintiff must furnish evidence of
sufficient facts or circumstances to permit at least an
intelligent and probable estimate of [such] damages." Id. at
232-33, 389 S.E.2d at 677 (internal quotation marks and
citation omitted).
To this end, we have held that an expert's opinion about
future lost income or future lost earning capacity is
inadmissible when such testimony fails to consider the
plaintiff's work history. E.g., Vasquez v. Mabini, 269 Va.
155, 160-61, 606 S.E.2d 809, 811-12 (2005); Greater Richmond
Transit Co. v. Wilkerson, 242 Va. 65, 71-72, 406 S.E.2d 28, 33
(1991). The inverse of the principle expressed in these cases
applies here: that is, a plaintiff's work history and quality
4 of past job performance is admissible evidence probative of the
plaintiff's claimed damages in the form of future lost income
or future lost earning capacity. See Virginia Rule of Evidence
2:401 ("'Relevant evidence' means evidence having any tendency
to make the existence of any fact in issue more probable or
less probable than it would be without the evidence.");
Virginia Rule of Evidence 2:402 ("All relevant evidence is
admissible, except as otherwise provided by . . . statute,
Rules of the Supreme Court of Virginia, or other evidentiary
principles."); Breeden v. Roberts, 258 Va. 411, 416, 518 S.E.2d
834, 837 (1999).
This is the very type of evidence Egan and Abilene sought
to introduce but which the circuit court excluded as
irrelevant. Specifically, the court excluded evidence of
Butler's work history from 1999 to 2010, including proof
relating to his employers, employment dates, pay rates, and
reasons for leaving the job. The court also excluded evidence
of the quality of Butler's past job performance. In each
instance, the court held that evidence of past work had no
bearing on future income. Utilizing this incorrect legal
standard to bar admission of relevant evidence was an abuse of
discretion. Lawlor v. Commonwealth, 285 Va. 187, 212-13, 738
S.E.2d 847, 861-62 (2013).
5 3. The Error Is Not Harmless
Reversal is required because this excluded evidence,
probative of Butler's future lost income, could have affected
the verdict. Barkley, 267 Va. at 374, 595 S.E.2d at 274. Two
principles arising from related circumstances, in which we
addressed the issue of speculative future lost income,
underscore this point.
First, we have held that expert testimony regarding future
lost income is too speculative to go to the jury when the
expert's opinion is based upon too scant of a work history.
Compare Cassady v. Martin, 220 Va. 1093, 1095-96, 1100, 266
S.E.2d 104, 104-05, 108 (1980) (8 weeks of work history
insufficient to make 21 year old decedent's 44 years of future
lost income not speculative), with Clark v. Chapman, 238 Va.
655, 665-67, 385 S.E.2d 885, 891-92 (1989) (6 weeks of work
history, in addition to a minimal and intermittent string of
jobs, sufficient to make 41 year old plaintiff's 11 years of
future lost income not speculative).
Second, in the context of remedying wrongful termination
pursuant to the Virginia Fraud Against Taxpayers Act, Code
§ 8.01-216.1 et seq., we have observed that "the longer the
period over which front pay is requested, the more speculative
a front pay award becomes." Lewis v. City of Alexandria, 287
Va. 474, 483 n.7, 756 S.E.2d 465, 471 n.7 (2014).
6 Directed to the circumstances of this case, these
principles establish that a jury award for future lost income
damages must be predicated upon evidence sufficiently
establishing the plaintiff's work history and continuing
ability to work absent the wrongful actions of the defendant,
so that such an award is not impermissibly speculative.
Further, the degree of evidence required to remove the award
from the realm of impermissible speculation corresponds to the
amount of time the future lost income damages cover. That is,
the longer the timeframe of future lost income claimed, the
more significant the evidentiary basis required to support such
an award.
At trial, Butler did not call an expert witness to testify
as to damages, but testified on his own behalf as a fact
witness. Butler claimed approximately 23 years of lost future
income totaling $137,842. Butler based this claim upon the
difference between his $18 per hour wage at Abilene and his
lower hourly wage with a subsequent employer – a difference
totaling approximately $6,000 per year – and multiplied that
figure by the approximately 23 years until when Butler planned
to retire at age 65. 1 Accordingly, by excluding the very
1 Though not material to our analysis, we note that Butler testified at trial that he was 43 years of age, about to turn 44, suggesting a projected work life to age 65 of less than 23 years.
7 evidence that Egan and Abilene sought to introduce, the circuit
court made this future lost income claim more speculative than
if such evidence had been admitted. When the record shows that
excluded evidence would have made an award less speculative,
such evidence could have affected the verdict so as to require
reversal. Barkley, 267 Va. at 374, 595 S.E.2d at 274.
We decline to affirm, as Butler argues, under the "right
result for the wrong reason" doctrine. Under that doctrine,
"however erroneous may be the reasons of the court for its
judgment upon the face of the judgment itself, if the judgment
be right, it will not be disturbed on account of the reasons."
Perry v. Commonwealth, 280 Va. 572, 579, 701 S.E.2d 431, 435
(2010) (internal quotation marks, citation, and alterations
omitted). Butler makes two arguments for such affirmance, and
we disagree with both.
First, Butler argues that the excluded evidence is more
prejudicial than probative, as it "make[s] Butler out to be
unreliable, when he [is] not." However, if that is what the
evidence shows, then that is simply the nature of the evidence.
The excluded evidence remains highly probative to establish the
amount of Butler's future lost income. "Evidence that is
highly probative invariably will be prejudicial to the
[opposing party]." United States v. Grimmond, 137 F.3d 823,
833 (4th Cir. 1998). Virginia Rule of Evidence 2:403(a) only
8 authorizes the trial court to exclude relevant evidence when
the probative value is substantially outweighed by the danger
of unfair prejudice. Any prejudice in the form of the jury's
perception of Butler's future employment prospects, arising
from this excluded evidence which tends to more accurately
establish Butler's future lost income, is not unfair prejudice
such that its admission could properly be barred under Virginia
Rule of Evidence 2:403(a).
Second, Butler argues that the substance of the excluded
evidence is duplicative of other evidence admitted into the
record, by way of exhibits or witness testimony, which the jury
was already entitled to consider. However, upon review of the
record, we find that the excluded evidence is sufficiently
different in kind and degree with such admitted evidence so
that its admission would not be barred under Virginia Rule of
Evidence 2:403(b) as needlessly cumulative.
B. Punitive Damages Liability
Abilene's assignment of error 3 reads:
The trial court erred when it denied Abilene's Motion to Strike the Punitive Damages Claims – and instructing the jury on punitive damages – as to Abilene. There was no evidence that Abilene had authorized or ratified Egan's actions in filing the criminal charges against Butler or the statements Egan made, and Butler never even pled any ratification or authorization.
9 1. Standard Of Review
When reviewing a circuit court's decision on a motion to
strike, we must "review the evidence in the light most
favorable to the non-moving party." Kiddell v. Labowitz, 284
Va. 611, 629, 733 S.E.2d 622, 632 (2012). That is, the non-
moving party must be given "the benefit of all substantial
conflict in the evidence, and all fair inferences that may be
drawn therefrom." Hadeed v. Medic-24, Ltd., 237 Va. 277, 281,
377 S.E.2d 589, 590 (1989) (internal quotation marks and
The object of our review depends upon the circuit court's
treatment of the motion to strike. Where, as here, the circuit
court denied the motion to strike, we must review the evidence
to determine if that action was in error because either "it is
conclusively apparent that [the] plaintiff has proven no cause
of action against [the] defendant," or "it plainly appears that
the [circuit] court would be compelled to set aside any verdict
found for the plaintiff as being without evidence to support
it." Blue Ridge Serv. Corp. v. Saxon Shoes, Inc., 271 Va. 206,
218, 624 S.E.2d 55, 62 (2006) (internal quotation marks and
To the extent we determine what type of evidence must be
presented, as an initial matter, to subject an employer to the
possibility of punitive damages liability for the actions of an
10 employee is a question of law we review de novo. Cf. Shevlin
Smith v. McLaughlin, __ Va. __, __, 769 S.E.2d 7, 17 (2015)
("Whether a factual issue constitutes a prima facie element of
a claim . . . is a question of law reviewed de novo.").
2. Punitive Damages Liability Against A Corporate Employer
The circuit court denied Abilene's motion to strike
Butler's claims for punitive damages against Abilene. This was
error.
A corporate employer may be liable for the compensatory
damages caused by the acts of its employees when such actions
are done "in the scope of [the employee's] employment and which
grow out of an act connected with the employment."
Oberbroeckling v. Lyle, 234 Va. 373, 381-82, 362 S.E.2d 682,
687 (1987). The analysis for determining whether a corporate
employer may be liable for punitive damages, however, is
different.
"A principal, . . . though of course liable to make
compensation for the injury done by his agent, within the scope
of his employment, cannot be held for . . . punitive damages,
merely by reason of wanton, oppressive[,] or malicious intent
on the part of the agent." Hogg v. Plant, 145 Va. 175, 180,
133 S.E. 759, 760 (1926) (internal quotation marks and citation
omitted). Consequently, "punitive damages cannot be awarded
against a master or principal for the wrongful act of his
11 servant or agent in which he did not participate, and which he
did not authorize or ratify." Id. at 181, 133 S.E. at 761.
Alternatively stated, punitive damages may be awarded against a
corporate employer only if either (1) that employer
participated in the wrongful acts giving rise to the punitive
damages, or (2) that employer authorized or ratified the
wrongful acts giving rise to the punitive damages. 2 Hewes v.
Doddridge, 40 Va. (1 Rob.) 143 (1842) (monographic note)
(citing Lake Shore & M. S. Ry. Co. v. Prentice, 147 U.S. 101
(1893)). The evidence at trial failed to establish that
Abilene either engaged in, or authorized or ratified, Egan's
alleged wrongful conduct.
a. Punitive Damages Liability When The Corporate Employer Participated In The Wrongful Acts
Although our case law establishes that an employer is
subject to punitive damages liability if it participates in the
wrongful acts, we have not gone further to address how to
determine whether a corporate employer itself is acting for
2 Butler argues that Abilene waived and conceded this issue by failing to object to, and by stipulating to, the fact that Egan was operating within the scope of Abilene's employment when he engaged in the wrongful acts giving rise to the punitive damages awards. This, of course, is important for purposes of establishing Abilene's vicarious liability for compensatory damages. But the fact that Egan was acting within the scope of his employment is not dispositive as to Abilene's liability for punitive damages. Butler ignores this distinction, but once made, Butler's arguments of waiver and concession are meritless.
12 purposes of punitive damages liability. Instead, we have
repeatedly focused only on the separate avenue of establishing
an employer's punitive damages liability by ascertaining
whether a corporate employer authorized or ratified an
employee's wrongful conduct. See, e.g., Freeman v. Sproles,
204 Va. 353, 358, 131 S.E.2d 410, 414 (1963); W. T. Grant Co.
v. Owens, 149 Va. 906, 913, 141 S.E. 860, 862-63 (1928).
Butler argues that any action of any employee taken on
behalf of a corporate employer is necessarily the action of the
corporate employer. After all, Butler continues, a corporate
employer such as Abilene "can only act through agents" such as
Egan. Bardach Iron & Steel Co. v. Charleston Port Terminals,
143 Va. 656, 672, 129 S.E. 687, 692 (1925). Consequently,
Butler contends that any employee's action is the corporate
employer's action for purposes of punitive damages liability.
We hold that this position is inconsistent with established
Virginia law, as it would render obsolete establishing a
corporate employer's punitive damages liability by way of
proving the employer's authorization or ratification of an
employee's wrongful conduct.
Instead, to subject a corporate employer to punitive
damages liability on the basis that the corporate employer
itself committed the wrongful acts, the employee who committed
the wrongful acts must be in a sufficiently high position in
13 the employer's corporate structure. Restatement (Second) of
Torts § 909 ("Punitive damages can properly be awarded against
a master or other principal because of an act by an agent if
. . . (c) the agent was employed in a managerial capacity and
was acting in the scope of employment."); see also, e.g.,
Hodges v. Gibson Prods. Co., 811 P.2d 151, 163 (Utah 1991);
Sweet v. Roy, 801 A.2d 694, 713-14 (Vt. 2002).
We hold that this standard applies in Virginia. The
question then becomes, how high a position in the corporate
ranks is sufficient to make the actions of an employee the
actions of the corporate employer? This is a fact-sensitive
question, dependent upon the power, role, and independence of
the employee relative to the nature and structure of the
corporate employer. See Bardach, 143 Va. at 672, 129 S.E. at
692 ("[When an agent] is a permanent employee or officer of the
company, the question as to the authority and power of such a
representative should be left to the jury, unless the evidence
shows that this authority on the occasion in question was
necessarily limited."); see also White v. Ultramar, Inc., 981
P.2d 944, 954 (Cal. 1999) ("[S]upervisors who have broad
discretionary powers and exercise substantial discretion
authority in the corporation could be managing agents.
Conversely, supervisors who have no discretionary authority
over decisions that ultimately determine corporate policy would
14 not be considered managing agents even though they may have the
ability to hire or fire other employees."); Chavarria v.
Fleetwood Retail Corp. of N.M., 143 P.3d 717, 725 (N.M. 2006)
("An employee has managerial capacity if he or she has the
discretion or authority to speak and act independently of
higher corporate authority." (internal quotation marks and
citation omitted)). We therefore decline to create a bright-
line rule, and instead supply the facts of this case for future
guidance.
The record shows that Egan had been working at Abilene for
four and a half years, and was the Director of Maintenance. As
Director of Maintenance, Egan "did the hiring and firing and
scheduling work. [He] was in charge of [Abilene's] entire
fleet as far as maintenance, purchasing." This is the totality
of evidence establishing Egan's position within Abilene's
corporate structure. As a matter of law, this limited evidence
is insufficient to establish whether Egan was in a sufficiently
high position within Abilene's business structure so that
employee Egan's actions were actually the corporate employer
Abilene's actions for purposes of punitive damages liability.
Butler makes additional arguments for why Abilene itself
committed the alleged acts of malicious prosecution and
defamation. We remain unpersuaded.
15 First, Butler points to the fact that the dismissal of
Egan's criminal complaint against Butler was accompanied by
Butler's agreement to stay off of Abilene's property for an
extended period of time. Butler argues that this establishes
that Abilene "benefitted" from the criminal action, and thus
Abilene was "involve[d] in the criminal case." Butler also
points to the fact that it was Abilene's president, Keith
Jones, who notified Butler that a warrant had been issued for
Butler's arrest. However, the fact that an aspect of the
criminal action related to Abilene's property, without further
evidence of Abilene's alleged involvement with the criminal
action, does not establish that Abilene itself engaged in
malicious prosecution or defamation. Similarly, the fact that
Abilene's president was aware of the existence of a warrant
does not establish that Abilene itself engaged in malicious
prosecution or defamation.
Second, Butler points to the fact that various videotapes
which should have recorded the areas of Abilene's property
where Butler's termination and any subsequent altercation
occurred remained in possession of Abilene and were accessible
by Abilene's president. But mere possession of such videotapes
16 Seeking to bolster his point, Butler repeats his argument
from trial that these tapes were destroyed or altered, because
either the video does not show certain locations that should
have been recorded, or the video of what is recorded is missing
events that actually occurred. Even accepting as true the
premise that someone destroyed or altered the relevant
videotapes, the record here fails to establish that such party
was Abilene. Such evidence alone does not establish that
Abilene destroyed or altered the tapes, and this evidence does
not establish that Abilene itself engaged in malicious
Third, Butler argues that because Abilene knew that the
unaltered videotapes exonerated Butler, but did nothing to stop
Egan's malicious prosecution or Egan's defamation, Abilene was
therefore sufficiently involved with the malicious prosecution
and defamation so that Abilene engaged in such wrongful
conduct. However, accepting as true that the record is
sufficient to warrant an inference that Abilene was aware of
the substance of the unaltered videotapes, the record does not
establish that Abilene itself engaged in malicious prosecution
or defamation. It may be – but we need not establish for
purposes of Virginia law – that the "person who places before a
prosecuting officer information upon which criminal proceedings
are begun" has "an obligation to disclose" the discovery of
17 "additional information casting doubt upon the accused's
guilt." Clarke v. Montgomery Ward & Co., 298 F.2d 346, 348
(4th Cir. 1962) (establishing such a rule for federal courts in
Virginia while recognizing that "there appear to be no Virginia
cases specifically [on] point"). But such a duty would apply
only to Egan, who filed the misdemeanor complaint against
Butler, and whose actions are not those of Abilene. And we
have never held that a third party, such as Abilene, who fails
to disseminate truth to counteract the false defamation
published by another, such as Egan, will be considered to have
engaged in another's defamatory act.
For these reasons, at the time of Abilene's motion to
strike, it plainly appears that the circuit court would have
been compelled to set aside, as being without evidence to
support it, any punitive damages verdict found for Butler
against Abilene based on the theory that Egan's actions were
actually the actions of Abilene. Blue Ridge, 271 Va. at 218,
624 S.E.2d at 62.
b. Punitive Damages Liability When The Corporate Employer Authorized Or Ratified The Wrongful Acts
Butler did not plead, and failed to introduce any evidence
at trial to prove, that Abilene authorized or ratified Egan's
alleged actions of malicious prosecution and defamation. For
these reasons, at the time of Abilene's motion to strike, it
18 plainly appears that the circuit court would have been
compelled to set aside, as being without evidence to support
it, any punitive damages verdict found for Butler against
Abilene based on the theory that Egan's actions were authorized
or ratified by Abilene. Id.
C. Proceedings On Remand
In light of these errors, 3 Egan and Abilene request a new
trial upon remand. Determining the nature of the proceedings
upon remand is informed by our actions on appeal, which in turn
are guided by assignments of error. Accordingly, the analysis
starts with the parties' assignments of error.
Rule 5:17(c)(1) requires an appellant to assign error to a
"ruling[] below." Only "sufficient" assignments of error are
recognized by this Court. Rule 5:17(c)(1)(iii). "A litigant's
failure to include any sufficient assignments of error in a
petition for appeal can deprive this Court of active
3 We do not address Egan's and Abilene's identical assignments of error 2, regarding whether Butler's future lost income awards were too speculative. Egan and Abilene failed to adequately brief this issue, and it is waived. Muhammad v. Commonwealth, 269 Va. 451, 478, 619 S.E.2d 16, 31 (2005). We do not address Egan's assignment of error 3 and Abilene's assignment of error 4, regarding whether the compensatory damage verdicts were duplicative; Egan's assignment of error 4 and Abilene's assignment of error 6, regarding whether the verdicts should have been set aside; and Abilene's assignment of error 5, regarding whether the punitive damages awarded against an employer can exceed the punitive damages awarded against an employee. Our holdings on appeal render it unnecessary to resolve these issues. Jimenez v. Corr, 288 Va. 395, 404, 764 S.E.2d 115, 118 (2014).
19 jurisdiction to consider the appeal." Amin v. County of
Henrico, 286 Va. 231, 236, 749 S.E.2d 169, 171 (2013) (emphasis
added). However, so long as an assignment of error is
sufficient, this Court has jurisdiction to consider the appeal.
A sufficient assignment of error puts before this Court an
"alleged error" committed by the court below. Rule 5:17(c)(1).
That alleged error defines the focus of what this Court can
address on appeal. See, e.g., Sarafin v. Commonwealth, 288 Va.
320, 323 n.1, 764 S.E.2d 71, 73 n.1 (2014). After all, "when a
party fails to assign error to a particular holding by the
circuit court, that holding becomes the law of the case and is
binding on appeal." Maine v. Adams, 277 Va. 230, 242, 672
S.E.2d 862, 869 (2009). Thus, for example, Egan's and
Abilene's assignments of error 1 put before this Court the
circuit court's action of excluding evidence, and Abilene's
assignment of error 3 put before this Court the circuit court's
action of denying a motion to strike. By way of these
assignments of error, we have authority to address whether
those actions were in error and, because they were, to reverse
the circuit court's actions.
Once we identify and reverse actions taken in error, and
remand is required, we must ascertain the appropriate nature of
such remand proceedings. The nature of remand proceedings may
be governed either by statute or by this Court's holding of
20 error on appeal; or, in the absence of such sources mandating a
specific form of proceedings, the lower court retains
discretion to resolve outstanding issues in the manner it sees
fit. Bailey v. Loudoun Cnty. Sheriff's Office, 288 Va. 159,
181-82, 762 S.E.2d 763, 774 (2014). When the nature of remand
proceedings is governed by our holding of error on appeal, we
must determine what portions of the lower court proceedings
were affected by such error. And it is those proceedings,
tainted by error, which must be accomplished anew upon remand.
See, e.g., Velocity Express Mid-Atlantic v. Hugen, 266 Va. 188,
203, 585 S.E.2d 557, 566 (2003) (error in allowing a
prejudicial closing argument to a jury in a non-bifurcated
trial typically requires remand of a new trial on all issues,
but specific circumstances of the case required only a new
trial on damages); Rawle v. McIlhenny, 163 Va. 735, 747-50, 177
S.E. 214, 220-21 (1934) (discussing how an appeal should be
resolved in five different scenarios of when a plaintiff
challenges the sufficiency of a verdict on an appeal).
In this case, remand proceedings are governed by our
holdings of error on appeal. Pursuant to Abilene's assignment
of error 3, we hold that the circuit court erred in denying
Abilene's motion to strike Butler's claims for punitive damages
against Abilene. Any issues falling within the scope of that
motion to strike are subject to final judgment. See Isle of
21 Wight Cnty. v. Nogiec, 281 Va. 140, 156, 704 S.E.2d 83, 91
(2011); Blue Ridge, 271 Va. at 219, 624 S.E.2d at 62. Thus,
Abilene is not subject to punitive damages on remand, and
Butler is foreclosed from presenting evidence to establish
Abilene's punitive damages liability.
Pursuant to Egan's and Abilene's assignments of error 1,
we hold that the circuit court erred in excluding evidence
probative of Butler's future lost income. The nature of the
circuit court's action, embodied in the assignment of error, is
not itself confined to a specific segment of the trial. Contra
Baker v. Carrington, 138 Va. 22, 23-25, 120 S.E. 856, 856-57
(1924) (plaintiff assigned error to lower court's striking
words from a jury instruction relating to punitive damages, and
thus the error affected only damages rather than liability).
Instead, the nature of our holding of error on appeal is
confined to a specific segment of the trial.
The circuit court's action of excluding certain evidence
was error because such evidence was probative of Butler's
future lost income. The issue of future lost income is an
issue relating to a plaintiff's compensatory damages. See,
e.g., Lewis-Gale Med. Ctr., LLC v. Alldredge, 282 Va. 141, 147,
710 S.E.2d 716, 719 (2011). Thus, our holding of error on
appeal necessitates a new trial as to Butler's compensatory
22 damages upon remand. Egan and Abilene, however, argue that the
reach of remand proceedings should go further. We disagree.
First, Egan and Abilene argue that our holding also
impacts issues of liability as this excluded evidence may have
affected the jury's assessment of Butler's credibility. Egan
and Abilene contend that, contrary to this excluded evidence,
Butler claimed at trial that he had been a well-regarded truck
mechanic before Egan damaged his reputation. Thus, as Butler
testified regarding Egan's and Abilene's liability, improperly
excluded evidence impacting the credibility of a liability
witness is an error that may have affected the jury's
determination of liability. Ryan v. Maryland Casualty Co., 173
Va. 57, 62-63, 3 S.E.2d 416, 418-19 (1939).
We cannot endorse Egan's and Abilene's position because we
cannot reach the issue of whether this evidence relates to
Butler's credibility. This issue was never argued before the
circuit court as a basis to allow admission of the evidence.
Therefore, basic rules of appellate procedure prevent us from
reaching this particular issue. Rule 5:25; Morgen Indus., Inc.
v. Vaughan, 252 Va. 60, 67-68, 471 S.E.2d 489, 493 (1996);
Fisher v. Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52
(1988). We will not circumvent these rules to address an
otherwise waived issue simply because we have found that the
23 circuit court's action to which the issue relates was error on
another basis.
Second, we note that Abilene observed during oral
arguments that any retrial of compensatory damages necessarily
requires a retrial of punitive damages because "an award of
compensatory damages is an indispensable predicate for an award
of punitive damages, except in actions for libel and slander."
Syed v. ZH Techs., Inc., 280 Va. 58, 74-75, 694 S.E.2d 625, 634
(2010) (internal quotation marks, citation, and alteration
omitted). It is true that we will vacate a punitive damages
award predicated upon a vacated compensatory damages award if
such relief falls within the scope of an assignment of error
and is adequately argued on appeal. See, e.g., Murray v.
Hadid, 238 Va. 722, 732, 385 S.E.2d 898, 905 (1989). But we
need not address whether Abilene's assignment of error 1
compels a retrial of punitive damages as against Abilene
because, as we have held, Abilene's assignment of error 3
removes that issue from retrial. Moreover, we do not address
whether Egan's assignment of error 1 compels a retrial of
punitive damages as against Egan because Egan waived the issue
at oral argument by conceding that he was "not contesting" the
punitive damages awards, and that the punitive damages awards
did not fall within the scope of his assignments of error.
24 III. CONCLUSION
The circuit court erred in excluding evidence probative of
Butler's future lost income. That error may have affected the
jury's determination of Egan's and Abilene's compensatory
damages. We therefore will reverse that portion of the circuit
court's judgment and remand for a new trial on compensatory
damages against Egan and Abilene.
The circuit court also erred in denying Abilene's motion
to strike Butler's punitive damages claims. We therefore will
reverse that portion of the circuit court's judgment and enter
final judgment in favor of Abilene regarding Butler's punitive
damages claims. Abilene's punitive damages liability is not
subject to retrial.
Our holdings do not disturb the circuit court's affirmance
of the jury's finding of Egan's and Abilene's liability. Our
holdings do not disturb the circuit court's entry of the
punitive damages awards against Egan. These issues are not
subject to retrial on remand.
Reversed and remanded in part, and final judgment in part.