                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia


DAVID C. WOODRUFF AND
 ANNE T. WOODRUFF
                                        MEMORANDUM OPINION * BY
v.        Record No. 0114-98-2           JUDGE LARRY G. ELDER
                                           DECEMBER 22, 1998
HARLIE E. GREENE, BUILDING OFFICIAL
 FOR LOUISA COUNTY, FLETCHER W.
 HARKRADER, III, ESQ., BROOKING
 BUILDERS, INC. AND STATE BUILDING
 CODE TECHNICAL REVIEW BOARD

             FROM THE CIRCUIT COURT OF LOUISA COUNTY
                       Jay T. Swett, Judge

          Darren Marshall Hart (Marvin Alan Rosman;
          Marvin Alan Rosman & Associates, on briefs),
          for appellants.

          (Fletcher W. Harkrader, III; Harkrader &
          Harkrader, on brief), for appellees Harlie E.
          Greene, Building Official for Louisa County
          and Fletcher W. Harkrader, III, Esq.
          Appellees Harlie E. Greene, Building Official
          for Louisa County and Fletcher W. Harkrader,
          III, Esq., submitting on brief.

          No brief or argument on behalf of appellee
          Brooking Builders, Inc.

          No brief or argument on behalf of appellee
          State Building Code Technical Review Board.



     David C. and Anne T. Woodruff appeal the ruling of the trial

court denying their motion under Code § 8.01-271.1 for the

imposition of sanctions against Harlie E. Greene, a building

official for Louisa County, and Greene's attorney, Fletcher W.
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Harkrader, III.   On appeal, the Woodruffs contend that the trial

court erred in not sanctioning Greene and Harkrader under Code

§ 8.01-271.1 because they (A) misrepresented in their petition

for appeal the record before the State Building Code Technical

Review Board (TRB) and failed timely to withdraw, correct or

revise these misrepresentations, even after the Woodruffs

notified them of same; (B) misstated the law as set out in and

incorporated into the Uniform Statewide Building Code (USBC);

(C) failed to conduct a review of the standard of review on

appeal until after filing their petition for appeal; and

(D) imposed the petition for appeal for the improper purpose of

delaying and increasing the Woodruffs' litigation costs.    For the

reasons that follow, we affirm the trial court's denial of the

Woodruffs' motion for sanctions in part, reverse in part and

remand to the trial court for the imposition of sanctions.
     Code § 8.01-271.1 provides:
               The signature of an attorney or party
          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 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



                               - 2 -
            initiative, shall impose upon the person who
            signed the paper or made the motion, a
            represented party, or both, an appropriate
            sanction, which may include an order to pay
            the other party or parties the amount of the
            reasonable expenses incurred because of the
            filing of the pleading, motion, or other
            paper or making of the motion, including a
            reasonable attorney's fee.


In determining whether one's conduct in signing a document

violated Code § 8.01-271.1, the trial court applies an objective

standard of reasonableness.    See Nedrich v. Jones, 245 Va. 465,

471, 429 S.E.2d 201, 204 (1993).      Therefore, whether the facts or

law would actually support the judgment sought is not

dispositive, as long as the factual and legal arguments were

objectively reasonable.    See id. at 472, 429 S.E.2d at 204.

"However, if it is clear that [the party's] claim had no chance

of success under existing law" and he did not argue for an

extension of the existing law, his conduct should have been

punished.    Tullidge v. Board of Supervisors, 239 Va. 611, 614,

391 S.E.2d 288, 290 (1990).   On appeal of such a determination to

this Court, we apply an abuse of discretion standard.      See

Nedrich, 245 Va. at 472, 429 S.E.2d at 204.

                                 A.

                     MISREPRESENTATION OF FACTS

     The Woodruffs contend Greene and Harkrader misrepresented

the testimony from the prior hearing and that their conduct

constituted failure to conduct a reasonable inquiry into whether

the petition for appeal was well grounded in fact.     Greene and




                                - 3 -
Harkrader stated repeatedly in the petition for appeal that "[n]o

one has asserted that a drip cap serves as flashing as required

by [CABO § R-503.8]," 1 when, in reality, Greene himself had

testified at the hearing before the TRB that "the piece of wood

mold[ing] with a drip edge" would "qualify as flashing . . . in

accordance [with] 503.8 . . . if it's painted and caulked."

     We agree that Greene's and Harkrader's assertions on brief

were at odds with Greene's testimony before the TRB and violated

the provisions of Code § 8.01-271.1.   Furthermore, Greene and

Harkrader failed to respond to the Woodruffs' letter of October

9, 1997, which specifically notified them of this inconsistency.

 Finally, Greene and Harkrader failed specifically to discuss

this issue on brief to this Court and chose not to present oral

argument on this or any other issue.   Although none of these

actions were required, they tend to indicate that Greene's and

Harkrader's actions were more than mere mistake.   Therefore, we

agree with the Woodruffs' contention that the trial court abused

its discretion in denying the motion for sanctions on this point.
     The Woodruffs also contend that Greene and Harkrader should

be sanctioned for failing to withdraw or amend the petition after

being notified of its misstatements of fact.   However, Code

§ 8.01-271.1 deals only with one's original endorsement of a

document and imposes no penalty for failing to withdraw or

     1
      CABO is an acronym for the 1 & 2 Family Dwelling Code of
the Council of American Building Officials.




                              - 4 -
correct it.    Therefore, we cannot conclude that the trial court

erred in denying the Woodruffs' motion for sanctions on this

related point.

                                   B.

                  MISSTATEMENT OF THE SUBSTANTIVE LAW

        The Woodruffs contend next that Greene and Harkrader failed

to conduct reasonable inquiry into whether their assertions were

warranted by existing substantive law.     Greene and Harkrader

argued repeatedly in the petition for appeal that "the language

of R-503.8 [does not] state[] that flashing is required to be

installed over drip caps" and contended that any decision by the

TRB requiring flashing over drip caps would be "contrary to the

law."    However, the Woodruffs cite to the official "Application

and Commentary" accompanying CABO § R-503.8, which provides

examples of flashing and includes a diagram of "flashing

[installed] over drip cap."     The Application and Commentary was

made part of the record before the TRB, contend the Woodruffs,

and Greene and Harkrader should have been aware of these

requirements.
        We disagree.   The relevant commentary to CABO § R-503.8

clearly shows flashing installed over a drip cap as one example

of the proper installation of flashing.     However, it remains

arguable that the installation of flashing over a drip cap is not

required by § R-503.8 and the related commentary if the drip cap

has been painted and caulked.     Therefore, we cannot conclude that




                                  - 5 -
the trial court abused its discretion in denying the motion for

sanctions on this issue.




                              - 6 -
                                   C.

              PERCEPTION OF STANDARD OF REVIEW ON APPEAL

        The Woodruffs contend that Greene and Harkrader also failed

to conduct reasonable inquiry regarding whether the appeal was

warranted by existing procedural law.     In their motion for

sanctions, the Woodruffs asserted that Greene bore the burden on

appeal of "demonstrating an error of law such that when

considering the record as a whole, a reasonable person

necessarily would come to a different conclusion . . . than the

TRB."    They emphasized that "Greene failed even to offer this

standard of review to the [circuit court]" and that, in

withdrawing the appeal, Harkrader admitted to the circuit court

that "we came to the decision this week that we could not meet

the standard of [review on] appeal and that we should withdraw

the appeal."    The Woodruffs assert that this statement

constitutes a concession that the appeal was not warranted by

existing law and that Greene and Harkrader failed properly to

evaluate this issue prior to filing the petition for appeal.
        We disagree.   Although the wiser course in an appeal is to

recite the proper standard of review and to discuss its

application to that particular appeal, we cannot conclude the

failure to do so warrants the imposition of sanctions.

Furthermore, we are unwilling to hold that the withdrawal of a

petition, because of a party's unilateral decision that its

evidence is insufficient to satisfy the standard of review,




                                  - 7 -
constitutes a concession that the appeal was not warranted by

existing law as that phrase is used in Code § 8.01-271.1.

Finally, we cannot conclude under the facts of this case that

Greene's and Harkrader's appeal to the circuit court was not

"warranted by existing law."   As set out above, the issue is not

whether the appeal "actually was warranted by existing law";

rather it was "whether, after reasonable inquiry, [Greene and

Harkrader] could have formed [an objectively] reasonable belief

that the [appeal] was warranted by existing law."   See Nedrich,

245 Va. at 471-72, 429 S.E.2d at 204.   Therefore, we hold that

the trial court did not abuse its discretion in denying the

motion for sanctions on this issue.

                                D.

         FILING PETITION FOR APPEAL FOR IMPROPER PURPOSE

     Finally, the Woodruffs contend that Greene's delay of one

hundred nine days in issuing the notice of violation to Brooking

ordered by the TRB, when coupled with the lack of merit of the

petition and the fact that the Woodruffs notified them of this

lack of merit, shows that Greene and Harkrader filed the petition

for appeal either to impose delay or to increase unduly the

Woodruffs' litigation costs.

     Although these things are factors which the trial court was

entitled to consider in determining whether the petition for

appeal was filed for an improper purpose, none compel the

conclusion that Greene and Harkrader entertained any improper



                               - 8 -
purpose.   Therefore, absent other evidence of improper purpose,

we cannot conclude that the trial court abused its discretion in

denying the Woodruffs' motion for sanctions on these grounds.

     For these reasons, we affirm the ruling of the trial court

in part and reverse in part based on our conclusion that Greene

and Harkrader failed to conduct a reasonable inquiry into whether

the appeal was well grounded in fact.   We remand to the trial

court for the imposition of sanctions and an award of attorney's

fees associated with the appeal.
                                              Affirmed in part,
                                              reversed in part
                                              and remanded.




                               - 9 -
