Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, 

and Agee, JJ., and Compton, S.J. 

XSPEDIUS MANAGEMENT CO. OF 

VIRGINIA, L.L.C. 

v. Record No. 041720 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 

 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 

have lived there continuously since then. In the fall of 

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 

distance of approximately 218 feet. At the widest point, 
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. The negotiations stalled in 

April 2003. At about that time, the Stephans filed this 

action for trespass against Xspedius. 

 1

 Apparently, there was a right-of-way where the fiber 

optic line could have been installed without encroaching on 

the Stephans’ property. 

2
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. The Stephans sought compensatory 

and punitive damages. 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 

3
“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. The 

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 

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 

reckless disregard of the Stephans’ property rights. In 

response, the Stephans argue that they “presented evidence 

that [Xspedius] knew it was trespassing, had an alternative 

4
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; 

Code § 8.01-680. We view the evidence and all reasonable 

inferences fairly deducible from it in the light most 

favorable to the prevailing party at trial, the Stephans. 

Evaluation Research Corp. v. Alequin, 247 Va. 143, 147, 439 

S.E.2d 387, 390 (1994). 

 “Punitive or exemplary damages are allowable only 

where there is misconduct or actual malice, or such 

recklessness or negligence as to evince a conscious 

disregard of the rights of others.” Giant of Virginia, 

Inc. v. Pigg, 207 Va. 679, 685, 152 S.E.2d 271, 277 (1967); 

5
accord Hamilton Dev. Co. v. Broad Rock Club, Inc., 248 Va. 

40, 45, 445 S.E.2d 140, 143 (1994). The purpose of 

punitive damages “is not so much to compensate the 

plaintiff but to punish the wrongdoer and to warn others.” 

Hamilton Dev. Co., 248 Va. at 45, 445 S.E.2d at 143. 

Accordingly, punitive damages are generally not favored and 

“should be awarded only in cases involving the most 

egregious conduct.” Bowers v. Westvaco Corp., 244 Va. 139, 

150, 419 S.E.2d 661, 668 (1992). “ ‘[W]here the act or 

omission complained of is free from fraud, malice, 

oppression, or other special motives of aggravation, 

damages by way of punishment cannot be awarded, and 

compensatory damages only are permissible.’ ” Wright v. 

Everett, 197 Va. 608, 615, 90 S.E.2d 855, 859 (1956) 

(quoting Wood v. American Nat’l Bank, 100 Va. 306, 316, 40 

S.E. 931, 934 (1902)); accord PGI, 265 Va. at 345, 576 

S.E.2d at 444; Baker v. Marcus, 201 Va. 905, 909, 114 

S.E.2d 617, 621 (1960). 

 We conclude that, in this case, the evidence was 

insufficient as a matter of law to support an award of 

punitive damages. As Xspedius pointed out, the sole basis 

for the Stephans’ claim for punitive damages was Xspedius’ 

failure to remove the fiber optic line as soon as it 

learned about the encroachment; Xspedius was not the entity 

6
that committed the initial trespass on the Stephans’ 

property when the fiber optic line was installed. Xspedius 

became aware of the trespass at issue in October 2002, 

after it had purchased many miles of fiber optic lines. 

Xspedius then negotiated with the Stephans to compensate 

them monetarily for the encroachment on their property. 

Although the Stephans testified that they always wanted the 

fiber optic line removed from their property and had never 

changed their position in that regard, they did not dispute 

the testimony of an Xspedius employee that the company had 

attempted to negotiate in good faith to compensate the 

Stephans for the encroachment. The employee stated, “From 

the time [Xspedius] became aware of [the encroachment] in 

October of 2002 up until three weeks ago, [Xspedius was] 

never asked to move it. [Xspedius was] simply asked for 

money.” 

When the negotiations stalled, the Stephans filed this 

action, but they did not specifically seek injunctive 

relief to require the removal of the fiber optic line from 

their property. In fact, the letter directing Xspedius to 

cease and desist from its continuing trespass was not sent 

until approximately three weeks prior to trial. Upon 

receiving the letter, Xspedius contacted a construction 

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firm to begin the engineering work that would be necessary 

to remove the fiber optic line from its present location. 

 As Xspedius argues, the facts in this case are 

analogous to those in Norfolk & Western Railway Co. v. A.C. 

Allen & Sons, 122 Va. 603, 95 S.E. 406 (1918). There, the 

defendant continued to use the plaintiffs’ water supply 

after this Court had affirmed a judgment for the 

plaintiffs. Id. at 606-08, 95 S.E. at 406-07. The 

defendant did so because it needed time to ascertain where 

a new supply of water could be obtained. Id. at 616, 95 

S.E. at 410. We concluded that 

[t]he evidence in the case [did] not show that 

the [defendant] was actuated by malice, 

wantonness or oppression, or that there was any 

fraud on its part, or that it was guilty of any 

gross negligence or recklessness, or that its 

action in continuing to take the water . . . 

evinced any intention on the part of the 

[defendant] to disregard the rights of the 

[plaintiffs], or to defy the law of the land. 

Id. at 616-17, 95 S.E. at 410. In the absence of one of 

these situations, the plaintiffs were not entitled to 

recover punitive damages. Id. at 617, 95 S.E. at 410. 

 In contrast, we held that the evidence presented in 

Hamilton Development was sufficient to support an award of 

punitive damages for a trespass to real property. 248 Va. 

at 45, 445 S.E.2d at 143. There, the defendant had been 

warned about 12 months before the trespass that the 

8
plaintiff owned the property at issue. Id. The defendant 

received another notice conveying the same information but 

ignored it, and proceeded to clear and grade the 

plaintiff’s property over a seven-day period. Id. at 42, 

45, 445 S.E.2d at 142, 143. We concluded that the 

defendant “acted with such recklessness or negligence to 

evince a conscious disregard of plaintiff’s property 

rights.” Id. at 45, 445 S.E.2d at 143. 

 As in Norfolk & Western Railway, the evidence in this 

case, viewed in the light most favorable to the Stephans, 

did not demonstrate that Xspedius, by failing to remove the 

fiber optic line as soon as it learned of its encroachment 

on the Stephans’ real estate, acted with such recklessness 

as to evince a conscious disregard of the Stephans’ 

property rights. Thus, we hold that the circuit court 

erred in refusing to strike the punitive damage claim. 

For these reasons, we will reverse that portion of the 

circuit court’s judgment awarding punitive damages to the 

Stephans.2

Reversed in part,

and final judgment. 

 2

 In light of our decision, it is not necessary to 

address Xspedius’ remaining assignments of error. 

9