PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, Powell, and 

Kelsey, JJ., and Lacy, S.J. 

FLOYD HOWARD, INDIVIDUALLY AND AS 

EXECUTOR OF THE ESTATE OF BERTHA 

HOWARD, DECEASED 

 OPINION BY 

v. Record No. 140670 JUSTICE CLEO E. POWELL 

 April 16, 2015 

LESLIE BALL 

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY 

Patrick R. Johnson, Judge 

 Floyd Howard (“Floyd”), individually and as the executor of 

the estate of Bertha Howard (“Mrs. Howard”), appeals the 

judgment of the trial court awarding ownership of certain real 

property to Leslie Ball (“Ball”). Specifically, Floyd takes 

issue with the trial court’s decision to allow Ball to raise the 

affirmative defense of adverse possession at trial without 

having previously pled this defense. Floyd also claims that 

Ball failed to introduce sufficient evidence to support an 

adverse possession claim. 

I. BACKGROUND 

 Floyd and Ball own adjacent parcels of land in Buchanan 

County, Virginia. The property at issue in the present case was 

held by a common owner until it was partitioned in 1905. Ball’s 

predecessors in interest acquired a fee simple interest in a 

portion of the property by deed dated December 23, 1905. Mrs. 

Howard acquired a fee simple interest in an adjacent portion of 

the property by two deeds dated June 1, 1956 and April 16, 1971. 
2

The location of the boundary line between the respective parcels 

is the subject of the present case. 

 In 1957, a survey was completed for Ball’s predecessor in 

interest. A fence was built along the property line established 

in the 1957 survey. In 1996, a second survey was completed for 

Mrs. Howard. The 1996 survey showed the property line 

consistent with the location of the fence. Another survey was 

completed in 2009, also for Mrs. Howard. The 2009 survey showed 

the property line south of the old fence, inside the parcel of 

land claimed by Ball. 

 On October 15, 2009, Mrs. Howard filed an action pursuant 

to Code § 8.01-179 seeking to establish the boundary lines of 

the property. Specifically, Mrs. Howard sought “judgment 

against [Ball] establishing the boundary line between the land 

of [Mrs. Howard] and [Ball] as shown in accordance with the 

[1996 survey].” On December 9, 2009, Ball filed his pro se 

response to Mrs. Howard’s complaint. In his answer, Ball 

disputed Mrs. Howard’s claim, relying on the description 

contained in the 1905 deed to his predecessor in interest and 

the 1957 survey. 

 At trial, testimony was heard from the land surveyors who 

conducted the 1996 and 2009 surveys. Additionally, over Mrs. 

Howard’s objection, Ball put on evidence demonstrating that he 

and his predecessors in interest had adversely possessed the 
3

disputed property since the fence was built in 1957 along the 

boundary established by the 1957 survey. Ball presented 

evidence indicating that the disputed property had been used by 

both him and his predecessors in interest for timber, tobacco 

and cattle. Additionally, Mrs. Howard testified that, although 

she never accepted the fence as the true boundary line between 

the properties, she also never had possession of the land on 

Ball’s side of the fence. 

 On February 13, 2013, the trial court issued a letter 

opinion holding that the boundary line submitted by Mrs. Howard 

is the true boundary line between the two properties. The trial 

court went on to explain that the outcome would have been 

different if Ball could have relied on his defense of adverse 

possession. However, the trial court determined that Ball “did 

not have this defense available to him because it had not been 

raised or asserted in his original pleadings.”1

 Ball filed a 

motion to reconsider arguing that, under this Court’s precedent 

in Bradshaw v. Booth, 129 Va. 19, 105 S.E. 555 (1921), he was 

not required to raise the defense of adverse possession in an 

action to establish boundary lines. After hearing argument on 

the matter, the trial court issued a second letter opinion and 

 1

 Indeed, there is nothing in the record indicating that 

Ball ever filed a motion seeking to amend his responsive 

pleadings to include adverse possession as an affirmative 

defense. 
4

reversed its original ruling. In its final order, the trial 

court ruled that the boundary line submitted by Ball is the true 

boundary line between the properties and ordered the recordation 

of a plat based on the 1957 survey “to establish the division 

line” between the properties. 

 Floyd2

 appeals. 

II. ANALYSIS 

 On appeal to this Court, Floyd argues that the trial court 

erred by allowing Ball to raise the affirmative defense of 

adverse possession at trial without having previously pled this 

defense. In response, Ball argues that our jurisprudence does 

not require him to plead adverse possession as an affirmative 

defense to a boundary dispute. Ball relies on our holding in 

Bradshaw where we stated that a defendant who raises a general 

defense to an ejectment action does not need to raise adverse 

possession as an affirmative defense. 129 Va. at 34, 105 S.E. 

at 560. In making this argument, Ball points out that this 

Court has previously recognized that actions to establish 

boundary lines and ejectment actions “are governed by the same 

legal principles.” Bulifant v. Slosjarik, 221 Va. 983, 986, 277 

S.E.2d 151, 152 (1981). 

 2

 During the pendency of the appeal, Mrs. Howard passed 

away. By order dated February 9, 2015, Floyd, individually and 

in his capacity as executor of Mrs. Howard’s estate, was 

substituted as the appellant in this case. 
5

 Ball’s argument must necessarily fail, however, because we 

have since abolished the use of such general defenses. See Rule 

3:8(a) (“A general denial of the entire complaint or plea of the 

general issue shall not be permitted”). Indeed, this Court has 

repeatedly admonished that, just as a plaintiff must give a 

defendant notice of its specific claims, a defendant must give a 

plaintiff notice of its specific defenses. 

It has long been required that a party raise 

specific defenses (just as a plaintiff must 

give notice of claims) so that surprise and 

prejudice at trial from late revelation of 

unanticipated legal theories is avoided. 

This has generally led to a requirement that 

affirmative defenses must be pled in order 

to be relied upon at trial. 

Monahan v. Obici Med. Mgmt. Servs., 271 Va. 621, 632, 628 S.E.2d 

330, 336 (2006) (citations omitted). Therefore, to the extent 

Bradshaw can be interpreted to allow a party to rely on adverse 

possession as an affirmative defense without expressly pleading 

it in an ejectment action or an action to establish boundary 

lines, it is overruled. 

 That said, however, this Court has recognized certain 

exceptions to the general requirement that a party must plead 

affirmative defenses. These exceptions include situations 

“where the issue addressed by an affirmative defense was not 

disclosed in a plaintiff’s pleading, and only became apparent as 

the evidence was being received at trial;” where the affirmative 
6

defense is “addressed by statute,” either expressly requiring 

that a particular defense be pled or obviating the need to do 

so; or where the affirmative defense does not constitute “an 

absolute bar to the plaintiff’s claim.” Monahan, 271 Va. at 

632-33, 628 S.E.2d at 336-37. 

 Here, Ball failed to plead the affirmative defense of 

adverse possession. In his singular responsive pleading, Ball 

did not mention or indicate that he intended to rely on adverse 

possession to dispute Floyd’s claim; rather, he disagreed with 

the location of the property boundary based on his 

interpretation of a conflicting deed. Further, none of the 

recognized exceptions apply to the present case. There was no 

evidence received at trial that raised an issue not addressed by 

Floyd’s complaint, nor is there a statute that addresses adverse 

possession as a defense to a suit to establish boundary lines. 

Further, proving that he adversely possessed the property would 

establish that Ball owned the disputed property and render the 

present action moot, thereby constituting an absolute bar to 

Floyd’s claim.3 Accordingly, the trial court erred in allowing 

 3

 The trial court’s final order awarding de facto ownership 

of the disputed property to Ball was particularly problematic in 

the present case, because the trial court was never asked to 

decide ownership of the disputed property. This Court has 

repeatedly admonished that “a court is not permitted to enter a 

decree or judgment order based on facts not alleged or on a 

right not pleaded and claimed.” Jenkins v. Bay House Assocs., 

L.P., 266 Va. 39, 43, 581 S.E.2d 510, 512 (2003). Indeed, in an 
7

Ball to rely on the affirmative defense of adverse possession 

without having first raised the defense in a responsive 

pleading.4

III. CONCLUSION 

 For the foregoing reasons, we will reverse the judgment of 

the trial court and we will remand the matter for further 

proceedings. 

Reversed and remanded. 

 

action to establish boundary lines, this Court has previously 

stated that a trial court can decide the issue of title and 

ownership of a property only when the matter is expressly 

“brought into dispute by the pleadings.” Brunswick Land Corp. 

v. Perkinson, 146 Va. 695, 704, 132 S.E. 853, 855 (1926). Here, 

neither party expressly brought title or ownership of the 

property into dispute by the pleadings. Accordingly, the trial 

court was not permitted to award such relief to either party. 

4

 Having determined that the trial court erred in allowing 

Ball to rely on the affirmative defense of adverse possession 

without raising the issue in a pleading, we need not consider 

the issue of whether the evidence was sufficient to support 

Ball’s claim of adverse possession.