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Present:

Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and Agee, JJ., and Compton, S.J.

XSPEDIUS MANAGEMENT CO. OF VIRGINIA, L.L.C. v. OPINION BY JUSTICE CYNTHIA D. KINSER April 22, 2005 ALBERT J. STEPHAN, ET AL. FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Stanley P. Klein, Judge Record No. 041720

In this action for a continuing trespass on real property, the dispositive issue is whether there was sufficient evidence to support the jury's award of punitive damages. Because the defendant did not act with such

recklessness as to evince a conscious disregard of property rights, we will reverse the circuit court's judgment awarding punitive damages. Albert J. and Helene Stephan (the Stephans) own a parcel of real estate located on Hidden Road in Vienna, Virginia. The Stephans purchased the property in 1987 and In the fall of

have lived there continuously since then.

1999, they discovered that workers were installing an underground fiber optic line on their property. The line

installation was completed "over [a] few months in [19]99 and 2000." The line traverses the Stephans' property for a At the widest point,

distance of approximately 218 feet.

the fiber optic line is approximately 15 feet inward from the boundary of the property. 1 The Stephans commenced an action for trespass against the company that had installed the fiber optic line, but the company filed for bankruptcy shortly thereafter. Subsequently, Xspedius Management Company of Virginia, L.L.C. (Xspedius), purchased assets of the bankrupt company. Those assets consisted of, among other things,

4,700 miles of fiber optic lines, including the line at issue in this case. During the negotiations for the sale,

Xspedius inquired about any known encroachments by the fiber optic lines. It received a list showing five

encroachments affecting about 12 property owners; however, the encroachment on the Stephans' property was not on the list. Xspedius became aware of the encroachment of the

fiber optic line on the Stephans' property in October 2002. After learning that fact, Xspedius negotiated with the Stephans in order to compensate them monetarily for the trespass on their property. April 2003. The negotiations stalled in

At about that time, the Stephans filed this

action for trespass against Xspedius.

Apparently, there was a right-of-way where the fiber optic line could have been installed without encroaching on the Stephans' property. 2

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In their motion for judgment, the Stephans alleged that the continuing trespass by Xspedius' fiber optic line on their property had diminished the value of their real estate, had caused a loss of use of the property, and had damaged the landscaping. and punitive damages. The Stephans sought compensatory

Approximately three weeks before

trial, the Stephans, in a letter from their attorney to counsel for Xspedius, directed Xspedius to cease and desist from its continuing trespass and to remove its property and equipment from the Stephans' property. At trial, both after the close of the Stephans' evidence and at the close of all the evidence, Xspedius moved to strike the claim for punitive damages. The court

took the motion under advisement and allowed the action to go to the jury. The jury returned a verdict in favor of

the Stephans and awarded them $15,000 in compensatory damages and $5,000 in punitive damages. In a post-trial motion to strike the claim for punitive damages and to enter partial summary judgment in its favor, Xspedius argued, among other things, that the Stephans' sole ground to justify an award of punitive damages was Xspedius' failure to remove the fiber optic line but that, in this case, no reasonable person could conclude that the failure to do so was coupled with any

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"fraud, malice, oppression, or other special motives of aggravation," PGI, Inc. v. Rathe Prods., Inc., 265 Va. 334, 345, 576 S.E.2d 438, 444 (2003), which Xspedius argued are necessary elements for an award of punitive damages. The

circuit court denied Xspedius' motion and entered judgment for the Stephans in accordance with the jury verdict. court reasoned that from October 2002, when Xspedius learned of the encroachment on the Stephans' property, until April 2003, when this action was filed, Xspedius was "on notice of an ongoing trespass," and could have taken some action to end the trespass, but elected not to do so. We awarded Xspedius this appeal. On appeal, Xspedius challenges the award of punitive damages. The dispositive issue is whether the circuit The

court erred by refusing to strike the Stephans' claim for punitive damages. Xspedius argues that the evidence was

insufficient as a matter of law to sustain an award of punitive damages because, during the time frame after it learned of the encroachment until this action was filed, it attempted to negotiate a settlement of the matter with the Stephans. Thus, according to Xspedius, it did not act in In

reckless disregard of the Stephans' property rights.

response, the Stephans argue that they "presented evidence that [Xspedius] knew it was trespassing, had an alternative

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to the trespass, knew the [Stephans] did not want the continuing trespass, and considered cessation of the trespass to be expensive." To decide the issue before us, we apply wellestablished principles of appellate review. "When parties

come before us with a jury verdict that has been approved by the trial court, they hold the most favored position known to the law." Stanley v. Webber, 260 Va. 90, 95, 531

S.E.2d 311, 314 (2000); accord Virginia Polytechnic Inst. & State Univ. v. Interactive Return Serv., 267 Va. 642, 650, 595 S.E.2d 1, 5 (2004). "The trial court's judgment is

presumed to be correct, and we will not set it aside unless the judgment is plainly wrong or without evidence to support it." Stanley, 260 Va. at 95, 531 S.E.2d at 314; We view the evidence and all reasonable

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