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

Agee, JJ., and Russell, S.J. 

FORD MOTOR COMPANY, ET AL. OPINION BY 

SENIOR JUSTICE CHARLES S. RUSSELL 

v. Record No. 051769 January 12, 2007 

BERTA BENITEZ 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jonathan C. Thacher, Judge 

 This is an appeal from an order imposing monetary 

sanctions against an attorney. The sanctions were imposed 

because the trial court found that the attorney had filed a 

pleading asserting affirmative defenses that were not “well 

grounded in fact” in violation of Code § 8.01-271.1. 

 The facts pertinent to the appeal are not in dispute. In 

2002, Berta Benitez filed an action in the trial court against 

Ford Motor Company (Ford) and Koons Ford, Inc. (Koons)1 to 

recover damages for injuries to her eyes caused by a defective 

air bag that deployed when a car, in which she was a 

passenger, collided with another vehicle. Extensive discovery 

was had in that case, including depositions of witnesses as to 

the facts of the accident, but the plaintiff suffered a 

voluntary nonsuit on November 5, 2003, before the case came to 

trial. 

 1

 Ford and Koons are collectively referred to as "the 

Defendants." 
2

 The plaintiff filed this suit on the same cause of action 

on April 28, 2004. The defendants responded with grounds of 

defense that contained, among other things, 13 affirmative 

defenses. These were preceded by the statement: “Ford will 

rely on the following affirmative defenses, if applicable, and 

if proved at trial.” That was followed by allegations of (1) 

contributory negligence, (2) assumption of the risk, (3) 

negligence of third parties, (4) failure to state a cause of 

action, (5) lack of notice of warranty claims as required by 

the Uniform Commercial Code, (6) failure to mitigate damages, 

(7) claim barred by terms of limited warranty, (8) 

unauthorized misuse or alteration of vehicle by plaintiff or 

others, (9) failure to comply with terms of warranty, (10) 

constitutional bars respecting punitive damage claims, (11) 

bars imposed by the applicable statute of limitations, (12) 

“all other defenses that may become applicable or available up 

to and including the time of trial,” and (13) “release and/or 

accord and satisfaction.” 

 The trial court entered a scheduling order setting the 

case for a jury trial, estimated to last eight days, beginning 

on November 7, 2005. The order required expert witnesses to 

be identified 90 days before trial by the plaintiff and 60 

days before trial by the defendants. Discovery was to be 

completed 30 days before trial. 
3

 On April 8, 2005, the plaintiff filed a motion to strike 

the defendants’ affirmative defenses on the ground that she 

had propounded interrogatories, requests for admissions and 

for the production of any documents that would have provided 

any factual support for the defenses, and that the defendants 

had failed to furnish any such factual support for them. 

 The parties filed memoranda with the trial court and the 

motion was argued on May 6, 2005. Plaintiff’s counsel pointed 

out to the court that full factual discovery had been 

completed in the previous action before it was nonsuited, 

although experts had not been identified by the parties. 

Plaintiff’s counsel also showed to the court an interrogatory 

propounded to the defendants that asked: “State with 

particularity all facts upon which you rely for your 

contention that you are not liable in this action.” In their 

response, the defendants stated, inter alia, that “Plaintiff 

has also failed to provide any expert disclosures to explain 

her theory of liability in this case. Without this 

information, Ford cannot say exactly which affirmative 

defenses it will continue to pursue.” 

 The trial court then went through the defenses seriatim, 

asking defense counsel2 to state what factual basis the 

 2

 Counsel representing the defendants at the hearing was 

Katherine M. Henry. She advised the court of her belief that 
4

defendants had for asserting them. Counsel responded: 

“Presently we don’t have sufficient information” and argued 

that the motion to strike the defenses was premature because 

the cut-off time for discovery had not yet arrived. Defense 

counsel also pointed out that the affirmative defenses had 

been asserted “upon information and belief” and had merely 

been reserved so that they would not be waived. 

 The trial court granted the plaintiff’s motion to strike 

the defenses of contributory negligence, assumption of the 

risk, negligence of a third party, failure to mitigate 

damages, unconstitutionality of the claim for punitive 

damages, and the statute of limitations. The court reserved 

for future decision the motion to strike the defenses of 

release and accord and satisfaction. The court denied the 

motion to strike the three defenses relating to breach of 

warranty and denied the motion to strike the defendants’ 

reservation of the right to assert additional defenses that 

might later become applicable. The defendants withdrew the 

remaining affirmative defenses. 

 At the end of the hearing, Plaintiff’s counsel moved the 

court to impose sanctions pursuant to Code § 8.01-271.1 on the 

 

the pleading in question had been drafted by Brian K. Telfair. 

It was signed, however, only by Robert L. Wise. All three were 

with the law firm of Bowman and Brooke, LLP, which had 

represented the defendants in both cases. 
5

ground that defense counsel had admitted that there was no 

known factual basis for the stricken affirmative defenses when 

asserting them. The court agreed that affirmative defenses 1, 

2, 3, 4, 5 and 6 “were completely groundless.” In response, 

defense counsel admitted: “In those defenses there were not 

sufficient facts.” 

 The issue then became a question of defense counsel’s 

knowledge that the defenses lacked factual support when 

signing the pleading asserting them. Plaintiff’s counsel 

contended that the defense had obviously known of the lack of 

factual support because of the discovery the parties had 

conducted in the original action before it was nonsuited. As 

an example, plaintiff’s counsel referred to the response 

defense counsel had made, earlier at the same hearing, when 

the court asked for the factual basis supporting the defense 

of contributory negligence. The defense had explained its 

assertion of contributory negligence by arguing that evidence 

might later become available showing that the plaintiff, a 

passenger, “could have either been too close or potentially 

out of position, possibly leaning forward or leaning up 

against the door” when the car in which she was riding was 

involved in a collision, causing the air bag to deploy, thus 

incurring an injury that would not have resulted if she had 

been sitting in a normal position. 
6

 Responding to that argument, Plaintiff’s counsel read to 

the court part of a deposition that had been taken, in the 

original action before it was nonsuited, of the driver of the 

car in which the plaintiff had been a passenger at the time of 

the collision: 

[Q] Now, Berta, was she seated? You said she was 

seated normally. And you gestured to your back. 

She was back against the seatback? 

[A] Yes. 

[Q] And her head was leaning back? 

[A] Yes. 

[Q] And you noticed her in that condition before the 

impact? 

[A] Correct. 

Plaintiff’s counsel argued that these responses showed 

that defense counsel had knowledge when signing his 

pleading that there was no factual support for his plea 

of contributory negligence in the present case. 

Plaintiff’s counsel stated that he had spent over fifteen 

hours in preparation for argument on the motion to strike 

the defenses and asked for an award of attorney’s fees in 

the amount of $200 per hour pursuant to Code § 8.01-

271.1. 

 The court noted that the defense admitted a lack of 

factual support for six of the affirmative defenses, and 
7

also noted the evasive answer the defense had given to 

the plaintiff’s interrogatory asking what factual basis 

existed for the affirmative defenses. The court found 

that affirmative defenses 1, 2, 3, 6, 10 and 11 were not 

grounded in fact when the pleading asserting them was 

signed, in violation of Code § 8.01-271.1, and awarded 

sanctions in the amount of $2000 against Robert L. Wise, 

the attorney for the Defendants who signed it.3

 We 

awarded the Defendants and Wise an appeal.4

Analysis

 Code § 8.01-271.1, enacted in 1987, provides, in 

pertinent part: 

Every pleading, written motion, and other paper of a 

party represented by an attorney shall be signed by 

at least one attorney of record in his individual 

name . . . . 

The signature of an attorney . . . constitutes a 

certificate by him that (i) he has read the 

pleading, motion, or other paper, (ii) to the best 

of his knowledge, information and belief, formed 

after reasonable inquiry, it is well grounded in 

fact and is warranted by existing law or a good 

faith argument for the extension, modification, or 

 3

 Wise contends that the quantum of the award is not 

supported by the record and is not based on a rational 

standard. Because this argument was never made to the trial 

court, we will not address it. Rule 5:25. 

4

 Although the defendants are nominal parties to this 

appeal, Wise, as the party aggrieved by the trial court's 

award of sanctions, joined in the petition for appeal. Briefs 

amici curiae were filed by the Virginia Association of Defense 

Attorneys and the Virginia Trial Lawyers Association. 
8

reversal of existing law, and (iii) it is not 

interposed for any improper purpose, such as to 

harass or to cause unnecessary delay or needless 

increase in the cost of litigation. 

. . . . 

If a pleading, motion or other paper is signed or 

made in violation of this rule, the court, upon 

motion or upon its own initiative, shall impose upon 

the person who signed the paper . . . an appropriate 

sanction, which may include . . . a reasonable 

attorney’s fee. 

 Wise argues that the trial court abused its 

discretion in awarding sanctions and failed to follow the 

clear wording of the statute. We begin our analysis by 

examining the relevant statutory provisions. First, it 

is apparent that the General Assembly had the opportunity 

to make discretionary a court’s imposition of sanctions 

upon finding a statutory violation, but elected not to do 

so. Instead, it used the mandatory words “shall impose 

. . . an appropriate sanction.” (Emphasis added.) 

Nevertheless, we apply an abuse of discretion standard in 

reviewing a trial court’s determination that the statute 

has been violated. Flora v. Shulmister, 262 Va. 215, 

220, 546 S.E.2d 427, 429 (2001). 

 The reason for applying that standard is that we are 

usually confronted with a mixed question of law and fact 

in such cases. Clause (ii) of the second paragraph of 
9

Code § 8.01-271.1 provides that an attorney’s signature 

to a pleading has a two-pronged effect: the attorney 

certifies that the pleading is well-grounded in fact, to 

the best of his knowledge, and also that it is warranted 

by law, or a good faith argument for a change in the law. 

Indeed, all the cases we have heretofore decided under 

the statute have involved both prongs of clause (ii). 

Thus, the trial courts have been required to assess the 

attorney’s (or pro se litigant’s) actual knowledge, or 

lack thereof, concerning the facts, “formed after 

reasonable inquiry,” as well as the legal question 

whether the challenged pleading is warranted by existing 

law, or a good-faith argument that the law should be 

changed. Such an inquiry into a person’s actual state of 

knowledge in the light of applicable principles of law 

can seldom present a clear-cut issue of fact, but 

requires the exercise of sound judicial discretion. 

 Each of our prior decisions applying Code § 8.01-

271.1 turned on such mixed questions of fact and law. 

See, e.g., Flora, 262 Va. at 220-21, 546 S.E.2d at 429-30 

(should autopsy report have been produced under rules of 

court?); Flippo v. CSC Assocs., 262 Va. 48, 65-66, 547 

S.E.2d 216, 227 (2001) (did language used in a letter 

constitute fraud?); Gilmore v. Finn, 259 Va. 448, 466-67, 
10

527 S.E.2d 426, 436 (2000) (was pleading warranted by 

good faith argument for extension, modification or 

reversal of existing law?); Oxenham v. Johnson, 241 Va. 

281, 287-88, 402 S.E.2d 1, 4 (1991) (did complainant’s 

name on arrest warrant support inference of malice?); 

Nedrich v. Jones, 245 Va. 465, 471-72, 429 S.E.2d 201, 

204 (1993) (was it reasonable to believe pleading 

warranted by existing law?); County of Prince William v. 

Rau, 239 Va. 616, 620, 391 S.E.2d 290, 292-93 (1990) (was 

it reasonable to believe defense warranted by existing 

law?); Tullidge v. Board of Supervisors, 239 Va. 611, 

613-15, 391 S.E.2d 288, 289-90 (1990) (was it reasonable 

to believe pleading warranted by existing law?). 

 The present case differs in that the second prong of 

clause (ii) is not involved. There is no contention here 

that the affirmative defenses were not warranted by 

existing law or a good-faith argument for its extension, 

modification or reversal. Five of the defenses stricken 

by the court were clearly based on valid principles of 

existing law and the remaining one, the claimed 

unconstitutionality of punitive damages, was based on a 

good-faith argument for the modification or reversal of 

existing law. 
11

 Unlike the cases cited above, this appeal turns upon 

a single issue: was the pleading well grounded in fact to 

the best of the knowledge, information and belief of the 

attorney who signed it, formed after reasonable inquiry? 

Because defense counsel admitted at the hearing that 

“[p]resently, we don’t have sufficient information,” the 

first part of the issue was conceded. The only question 

remaining for the trial court’s determination was whether 

defense counsel had knowledge, “formed after reasonable 

inquiry,” when signing the grounds of defense, that there 

was no factual support for the allegations he made. As 

to that question, the trial court was not limited to the 

record in the present case, but could properly consider 

any relevant and admissible evidence tending to show the 

attorney’s state of knowledge at the time in question. 

 This case, unlike its predecessors, is an action 

refiled after the nonsuit of a previous case in which 

full discovery was taken between the same parties by the 

same counsel. All information obtained by counsel in 

that earlier case was known to the attorney who signed 

the grounds of defense in this case. The evidence of the 

information defense counsel acquired when deposing the 

driver of the car in which the plaintiff received her 

injury was in itself a sufficient basis for a finding 
12

that counsel knew, when signing the grounds of defense in 

the present case, that no factual basis existed for the 

defenses of contributory negligence or assumption of the 

risk. See Oxenham, 241 Va. at 289, 402 S.E.2d at 5. 

Accordingly, we find no abuse of discretion in the trial 

court’s finding that defense counsel had violated clause 

(ii) of the second paragraph of the statute. 

 Wise contends that even if a violation of clause 

(ii) was shown, there was still no evidence to support a 

finding that defense counsel had an improper purpose in 

filing the pleading, such as an intent to harass, delay, 

or drive up the cost of litigation for the plaintiff, and 

that there was, therefore, no violation of clause (iii) 

of the second paragraph of the statute. That argument is 

based on the fallacious premise that a violation of all 

three clauses must be shown before sanctions are 

mandated. By clear statutory language, the General 

Assembly stated the three clauses in the conjunctive. 

Thus, an attorney’s signature to a pleading certifies 

compliance with all three clauses, and the attorney is 

subject to sanctions for failure to comply with any one 

of them. 

 Wise further contends that the grounds of defense 

did not really assert the affirmative defenses, but 
13

merely reserved the right to rely on them “if applicable, 

and if proved at trial.” He argues that such a 

“reservation” was necessary to avoid waiving the 

defenses, because facts might later be found to support 

them. That argument ignores the fundamental purpose of 

pleadings in judicial proceedings: to "inform[] the 

opposite party of the true nature of the claim or 

defense.” See Rule 1:4(d). “The purpose of a defensive 

pleading is to inform the opposite party, and to permit 

the court to determine, what is the true nature of the 

defense.” Lumbermen’s Mut. Cas. Co. v. Hodge, 205 Va. 

36, 39, 135 S.E.2d 187, 189 (1964) (emphasis added). A 

pleading that puts the opposing party to the burden of 

preparing to meet claims and defenses the pleader knows 

to have no basis in fact is oppressive. It constitutes 

an abuse of the pleading process and results in the wrong 

that Code § 8.01-271.1 was enacted to prevent. 

 That wrong is not dispelled by couching the pleading 

in language that merely threatens the use of the 

unsupported claim if it should later become available. 

The opposing party must still shoulder the burden of 

preparing to meet it. The remedy for a party who hopes 

that evidence may later come to light in support of a 

claim or defense is to move to amend his pleadings when 
14

such evidence becomes available. “Leave to amend shall 

be liberally granted in furtherance of the ends of 

justice.” Rule 1:8. That rule takes into account that 

new evidence may come to light during discovery, 

warranting the assertion of new claims or defenses. A 

motion to amend gives the opposing party notice of the 

claimed factual basis for the newly-asserted claim or 

defense and an opportunity to prepare to meet it. It is 

true that amendments are not a matter of right, but a 

trial court’s decision refusing leave to amend after a 

showing of good cause is, in ordinary circumstances, an 

abuse of discretion. See Mortarino v. Consultant Eng'g 

Servs., 251 Va. 289, 295-96, 467 S.E.2d 778, 782 (1996).5

 Wise argues that it was premature for the trial 

court to rule on the plaintiff’s motion before the cutoff date for discovery had arrived in the present case. 

That argument begs the question. The issue before the 

trial court was the information defense counsel had at 

 5

 The trial court stated to counsel: “I can not imagine a 

single judge in this court [who wouldn’t rule] that if you 

develop through discovery facts that would support one of 

those defenses, you can move to amend.” The trial court 

denied the motion to strike the defendants’ affirmative 

defense 12, which stated “Ford reserves the right to rely upon 

all other defenses that may become applicable or available,” 

saying, “I think you have a right to reserve those. And if it 

comes to a factual basis, then you can ask to amend.” 
15

the time he signed the grounds of defense, not what 

information might come to light thereafter. 

 In Flippo, 262 Va. at 65-66, 547 S.E.2d at 227, we 

pointed out that in applying an abuse of discretion 

standard to a trial court’s award of sanctions under Code 

§ 8.01-271.1, we use an “objective standard of 

reasonableness in determining whether a litigant and his 

attorney, after reasonable inquiry, could have formed a 

reasonable belief that the pleading was well grounded in 

fact.” 

 Such an objective standard of reasonableness 

requires consideration of several factors. As an 

example, if a plaintiff employs an attorney near the 

deadline of the statute of limitations, the attorney may 

have no alternative except reliance on the information 

his client imparts to him when preparing a last-minute 

pleading. Similarly, a defendant may come to counsel at 

the last minute, leaving counsel no alternative but 

reliance on his client’s account if a responsive pleading 

is to be filed in time to avoid default. The present 

case, however, is not of that kind, and in any event, 

Rule 1:8, as quoted above, permits amendment of the 

pleading in furtherance of the ends of justice if and 

when counsel acquires more complete information. 
16

 The foregoing examples are not an exhaustive list, 

but they serve to show why an objective standard of 

reasonableness must be applied to the question whether 

the attorney "after reasonable inquiry, could have formed 

a reasonable belief that the pleading was well grounded 

in fact." In no event may counsel file a pleading he 

knows to be unfounded in fact. 

Conclusion

 We find no abuse of discretion in the trial court’s 

decision, and therefore will affirm the judgment appealed 

from. 

Affirmed.