COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, O’Brien and AtLee

Argued at Lexington, Virginia

WATAN HOLDINGS, LLC

MEMORANDUM OPINION* BY

v. Record No. 0136-23-3 JUDGE MARY GRACE O’BRIEN

NOVEMBER 8, 2023

VIOLET BLANKENSHIP, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG

J. Frederick Watson, Judge

Joseph A. Sanzone (Sanzone & Baker, L.L.P., on brief), for 

appellant.

Sherwood S. Day for appellees.

Watan Holdings, LLC (Watan) appeals a ruling sustaining a demurrer to its amended 

complaint alleging a breach of general warranty of title. Watan asserts that the court erred by 

finding it had not sufficiently pled an actual or constructive eviction—a necessary element for a 

breach of general warranty claim. For the following reasons, we affirm.

BACKGROUND

Watan filed an amended complaint1against Violet Blankenship and her husband’s estate, 

alleging a breach of general warranty of title.2 Watan purchased commercial property in 

* This opinion is not designated for publication. See Code § 17.1-413(A).

1 Violet Blankenship demurred to Watan’s initial complaint on the same ground at issue 

here: that Watan failed to plead sufficient facts demonstrating an actual or constructive eviction. 

The court sustained the demurrer with leave to amend.

2 The amended complaint also references fraudulent representations made by 

Blankenship and her husband. In its letter opinion, the court found that the amended complaint 

was solely a claim for breach of warranty despite the general references to fraud, and Watan has 

not assigned error to that finding. Thus, we treat Watan’s amended complaint solely as a claim

UNPUBLISHED
- 2 -

Lynchburg from the Blankenships in 2016 and received a general warranty deed. At an 

unspecified time after the purchase, Watan became aware of a title defect—the 2016 deed 

conveyed parts of the “property which the [Blankenships] did not own.” Watan learned of the 

title defect after the city denied its application for a zoning modification because Watan did not 

own the entire property.3

The amended complaint alleged that “[p]arts of the existing building, appurtenances 

concerning the existing building, and parking spaces in the northwest corner of the property are 

located on property owned by the Norfolk and Southern Railway Company, and a retaining wall 

believed to be on the property is actually owned by Virginia Eagle.” Watan claimed that, as a 

result, the property “is not in a condition to be fully used” and “cannot be repaired due to parts of 

the building and parking lot being located on the property of another.” Additionally, Watan’s

tenants withheld rent because of the repairs required, and Watan could not secure a new tenant 

“due to [the building’s] general state of disrepair.” Watan asserted that these circumstances, and 

the city’s rezoning denial, taken together, constituted a constructive eviction from the property. 

Watan also claimed that “[a]n actual eviction occurred as a result of [the Blankenships’] actions 

for breach of general warranty. See Banks v. Commonwealth, 67 Va. App. 273, 289 (2017)

(noting that an appellate court is “limited to reviewing the assignments of error presented by the 

litigant”); Rule 5A:20(c)(1) (“Only assignments of error listed in the brief will be noticed by this 

Court.”).

3 Watan alleged this fact in its initial complaint but failed to allege any facts about the 

city’s denial of a zoning modification in its amended complaint or incorporate by reference the 

initial complaint’s allegations. “[W]hen a circuit court sustains a demurrer to an amended

[complaint] which does not incorporate or refer to any of the allegations that were set forth in a 

prior [complaint], we will consider only the allegations contained in the amended pleading to 

which the demurrer was sustained.” Hubbard v. Dresser, Inc., 271 Va. 117, 119-20 (2006) 

(quoting Yuzefovsky v. St. John’s Wood Apartments, 261 Va. 97, 102 (2001)). Thus, we do not 

consider the city’s actions because we may “consider only the allegations contained in the 

amended pleading to which the demurrer was sustained.” Id. We refer to the city’s actions only 

to provide context for Watan’s assertion in the amended complaint that the city’s rezoning denial 

formed part of the basis for a constructive eviction.
- 3 -

stated herein since the property was in the actual possession of a third party under a paramount 

title at the date of the conveyance.”

Blankenship demurred to Watan’s amended complaint, asserting that a complaint for a 

breach of warranty must plead sufficient facts to establish an actual or constructive eviction.4 

Blankenship argued that the facts pled in the amended complaint were legally insufficient to 

constitute an actual or constructive eviction because Watan failed to allege that a third party had 

asserted paramount title over any part of the property and that such assertion resulted in an 

ouster. Blankenship noted Watan had conceded at a prior hearing that Norfolk Southern and 

Virginia Eagle never asserted paramount title to the property. Blankenship contended that this 

concession was fatal to Watan’s action.

Following a hearing, the court sustained Blankenship’s demurrer without leave to further 

amend and dismissed the case with prejudice. The court reasoned that Watan did not sufficiently 

plead an actual or constructive eviction from the property because it “failed to state facts 

demonstrating an assertion of paramount title” by a third party. Counsel for Watan signed the 

final order “[s]een and objected to.”

ANALYSIS

I. Rule 5A:18

Blankenship first contends that Watan failed to preserve its arguments under Rule 5A:18 

because it only generally objected to the court’s ruling by signing the final order as “[s]een and 

objected to.” 5

4 The estate of Blankenship’s husband did not file a separate demurrer but joined 

Blankenship’s brief on appeal.

5 Blankenship also argues that Watan failed to file an adequate appendix under Rule 

5A:25; however, the clerk of the trial court filed a full electronic record that includes all 

pleadings, motions, orders, and transcripts. Per Rule 5A:25(a)(1), “[n]o appendix is required,” 
- 4 -

Under Rule 5A:18, “[n]o ruling of the trial court . . . will be considered as a basis for 

reversal unless an objection was stated with reasonable certainty at the time of the ruling, except 

for good cause shown or to enable this Court to attain the ends of justice.” “Rule 5A:18 requires 

a litigant to make timely and specific objections, so that the trial court has ‘an opportunity to rule 

intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.’” Brown 

v. Commonwealth, 279 Va. 210, 217 (2010) (quoting West v. Commonwealth, 43 Va. App. 327, 

337 (2004)). “[E]ndorsing a decree ‘seen and objected to’ does not preserve an issue for appeal 

unless the record further reveals that the issue was properly raised for consideration by the trial 

court.” Twardy v. Twardy, 14 Va. App. 651, 657 (1992) (en banc); see also Canales v. Torres 

Orellana, 67 Va. App. 759, 770-72 (2017). “[I]f a trial court is aware of a litigant’s legal 

position[,] and the litigant did not expressly waive such arguments, the arguments remain 

preserved for appeal.” Brown, 279 Va. at 217; see also Code § 8.01-384(A).

Here, the record demonstrates that Watan properly raised for the trial court’s 

consideration the issues it now argues on appeal. Twardy, 14 Va. App. at 657. At the hearing on 

Blankenship’s demurrer, Watan made the same arguments it makes on appeal and relied on the 

same authorities. The court considered Watan’s arguments and was well “aware of [Watan’s] 

legal position” when it decided the case. Brown, 279 Va. at 217. Nothing in the record suggests 

that the court was deprived of “an opportunity to rule intelligently on the issues presented” in this 

appeal. Id. (quoting West, 43 Va. App. at 337). Accordingly, Watan preserved its arguments. 

See Moncrief v. Div. of Child Support Enf’t ex rel. Joyner, 60 Va. App. 721, 728-30 (2012)

(holding that an appellant did not waive issues by endorsing a final order “[s]een and [o]bjected 

because “the clerk of the trial court or other tribunal has filed the record electronically.” Thus, 

any defects with the appendix are immaterial.
- 5 -

to . . . for the reasons stated in oral argument” where the record reflected that he presented the 

trial court with the same arguments subsequently raised on appeal).

II. Actual or Constructive Eviction

We review de novo a court’s decision to sustain a demurrer, as it involves a pure issue of 

law. Butler v. Stegmaier, 77 Va. App. 115, 125 (2023). “The purpose of a demurrer is to 

determine whether a complaint states a cause of action upon which the requested relief may be 

granted.” Assurance Data, Inc. v. Malyevac, 286 Va. 137, 143 (2013). A demurrer is properly 

sustained “if the pleading, considered in the light most favorable to the plaintiff, fails to state a 

valid cause of action.” Qiu v. Huang, 77 Va. App. 304, 317 (2023) (quoting Hooked Grp., LLC 

v. City of Chesapeake, 298 Va. 663, 667 (2020)).

“A demurrer tests the legal sufficiency of facts alleged in pleadings, not the strength of 

proof. Accordingly, we accept as true all properly pled facts and all inferences fairly drawn from 

those facts.” Dunn, McCormack & MacPherson v. Connolly, 281 Va. 553, 557 (2011) (quoting 

Abi-Najm v. Concord Condo., LLC, 280 Va. 350, 357 (2010)). “That interpretative deference, 

however, requires us to ‘distinguish allegations of historical fact from conclusions of law.’” 

Anderson v. Dillman, 297 Va. 191, 194 (2019) (quoting Coward v. Wellmont Health Sys., 295 

Va. 351, 359 (2018)).

In an action for a breach of a covenant of warranty, a claimant must plead that an actual 

or constructive eviction has occurred. Tull v. Fleming Bros. Lumber & Mfg. Co., 189 Va. 171, 

181-82 (1949); see also Morgan v. Haley, 107 Va. 331, 334 (1907). “An adversary 

dispossession or a compulsory yielding up of the possession constitutes an actual eviction.” 

Jones v. Richmond, 88 Va. 231, 234 (1891). A constructive eviction occurs when “the premises 

are in the actual possession of a third party,” Tull, 189 Va. at 182, under “an adverse assertion of 

a paramount title” at the time of the conveyance, Jones, 88 Va. at 233, 235 (“[W]here, at the time 
- 6 -

of the conveyance, the grantee finds the premises in possession of one claiming under a 

paramount title, the covenant for quiet enjoyment or of warranty will be held to be broken, 

without any other act on the part of either the grantee or the claimant.” (quoting William Henry 

Rawle, A Practical Treatise on the Law of Covenants for Title § 139 (originally published 

1860))); see also Tull, 189 Va. at 181. A constructive eviction may also occur “without any 

actual change of possession” if the plaintiff was “compelled to purchase the paramount title, 

when the validity of such title has been established by the judgment or decree of a court[,] . . . for 

in such a case the [plaintiff] has the right to presume that if he does not become the purchaser he 

will be evicted.” Morgan, 107 Va. at 335; see also First Am. Title Ins. Co. v. Chesapeake 

Holdings GSG, LLC, 633 F. Supp. 3d 789, 798-99 (E.D. Va. 2022) (applying Virginia law and 

finding sufficient allegations of a constructive eviction where, to maintain possession, the 

plaintiff was required to purchase a corrective deed from a third party asserting paramount title).

Watan failed to sufficiently plead that either an actual or constructive eviction occurred. 

The amended complaint contains a single conclusory allegation that “[a]n actual eviction 

occurred” because “the property was in the actual possession of a third party under a paramount 

title at the date of the conveyance.” Watan argues that the amended complaint “establishes 

eviction by its stated language”; however, the assertion that “an actual eviction occurred” is 

merely a legal conclusion, not a statement of historical fact. See Anderson, 297 Va. at 194. 

“[W]e do not accept the veracity of conclusions of law camouflaged as factual allegations or 

inferences.” Id. (quoting Coward, 295 Va. at 359). At most, Watan alleged that after 

discovering third parties might have better title, it abstained from entering the disputed parts of 

the property on its own volition due to unsubstantiated concerns that entry could be considered a 

trespass. Watan did not claim that any “adversary dispossession” or “compulsory yielding” of 
- 7 -

possession occurred, Jones, 88 Va. at 234 (emphases added), and thus failed to sufficiently allege 

an actual eviction.

Watan also failed to sufficiently plead constructive eviction. Watan conceded that 

Norfolk Southern and Virginia Eagle have never asserted a paramount title over any part of the 

property. Indeed, the allegations in the amended complaint do not support an inference that 

Norfolk Southern or Virginia Eagle are even aware of the title issues. Watan merely alleged that

these third parties have better title over “[p]arts of the existing building, appurtenances 

concerning the existing building, . . . parking spaces in the northwest corner of the property,” and 

a retaining wall. “The mere existence of a paramount legal title in a third person . . . which has 

never been asserted does not amount to a constructive eviction which will support an action for 

breach of covenant.” K.A. Drechsler, Annotation, What Amounts to Constructive Eviction 

Which Will Support Action for Breach of Covenant of Warranty or for Quiet Enjoyment, 172 

A.L.R. 18, § II(b) (originally published 1948) (collecting cases); accord Jones, 88 Va. at 234 

(“The existence of an incumbrance, or the mere recovery in a possessory action under which the 

bargain has not been actually disturbed, are held, for technical reasons, not to be breaches of a 

covenant for quiet possession, or, in other words, upon warranties.”); Marbury v. Thornton, 82 

Va. 702, 705 (1886) (“A covenant of warranty, however, can never be treated as a covenant 

against mere incumbrances.”).

Watan relies on Tull v. Fleming Brothers Lumber & Manufacturing Co. to support its 

argument that it sufficiently pled constructive eviction. Tull, however, is distinguishable. Tull

sold Fleming Brothers timber on land she claimed to own, but a third party prevented Fleming 

Brothers from removing the timber and claimed to have purchased the land at a judicial sale four

years earlier. 189 Va. at 173-74. The third party threatened to “shoot [anyone] who trespassed 

on the land for the purpose of cutting their timber.” Id. at 174. The Supreme Court affirmed a 
- 8 -

finding that Fleming Brothers had been constructively evicted because “the premises and the 

timber [were] in [the] actual possession of the [third party] claiming under a paramount title.” 

Id. at 181. The Court noted that Fleming Brothers was “prevented by a most effective means 

from cutting and taking the timber into possession” and was under “no compulsion to commit a 

trespass in order to establish a lawful right in another action.” Id.

Watan argues the circumstances pled are similar because in Tull, a third party was “in 

possession of and owned the land [that the purported landowner] attempted to convey,” and here, 

Norfolk Southern and Virginia Eagle own parts of the land Blankenship conveyed. However, 

Watan ignores the significant distinction that the third party in Tull clearly asserted paramount 

title (by threatening to shoot anyone who entered the land) and that Fleming Brothers could not 

take possession of the property. See id. at 174. Even accepting as true that Norfolk Southern 

and Virginia Eagle have better title over parts of the disputed property, the amended complaint 

failed to allege that they have ever asserted paramount title or kept Watan from possessing the 

property as the third party did in Tull.

It is fundamental that an eviction of any kind requires some disturbance of possession. 

Jones, 88 Va. at 234 (“[N]o action lies upon [a breach of warranty] until actual eviction, or at 

least disturbance of the possession.”). The only exception to this rule is when a plaintiff is 

“compelled to purchase the paramount title” to avoid an ouster or a disturbance. Morgan, 107 

Va. at 335. There are no allegations in the amended complaint that Watan has ever been kept or 

expelled from any part of the property, or that there has been interference with its access. As in 

Marbury, “there is no averment that [plaintiffs] were kept out of possession of the premises by 

any person or persons in possession under a paramount title, or that they were evicted by 

judgment of eviction followed by ouster.” 82 Va. at 704. Nor did Watan allege that it was 

“hindered and prevented, by any one having a better right, from entering and enjoying the 
- 9 -

premises.” Sheffey’s Ex’r v. Gardiner, 79 Va. 313, 317 (1884) (quoting Park v. Bates, 12 Vt. 

381, 387 (1840)). Watan also never claimed that it was “compelled to purchase the paramount 

title” to avoid an ouster. Morgan, 107 Va. at 335. Merely because Watan treated the title defect 

as an eviction does not make it so; the facts alleged in the amended complaint, viewed in the 

light most favorable to Watan, are insufficient to constitute either an actual or constructive 

eviction.

CONCLUSION

Because Watan’s amended complaint failed to plead sufficient facts to satisfy an essential 

element of a breach of general warranty claim, the court did not err by sustaining Blankenship’s 

demurrer. For these reasons, we affirm the court’s judgment.

Affirmed.