                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 10-1802


FIRST AMERICAN TITLE INSURANCE COMPANY,

                 Plaintiff – Appellee,

           v.

WESTERN SURETY COMPANY,

                 Defendant – Appellant,

           and

FIRST ALLIANCE TITLE, INCORPORATED,

                 Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:09-cv-00403-LO-IDD)


Argued:   May 12, 2011                      Decided:   August 2, 2011


Before DUNCAN and AGEE, Circuit Judges, and David C. NORTON,
Chief United States District Judge for the District of South
Carolina, sitting by designation.


Unpublished Order of Certification to the Supreme Court of
Virginia.   Judge Agee directed entry of the order with the
concurrences of Judge Duncan and Judge Norton.
ARGUED: Richard Thomas Pledger, WALLACEPLEDGER, PLLC, Richmond,
Virginia, for Appellant. David H. Cox, JACKSON & CAMPBELL, PC,
Washington, D.C., for Appellee.     ON BRIEF: Thomas J. Moran,
Erick F. Seamster, WALLACEPLEDGER, PLLC, Richmond, Virginia, for
Appellant.     Paul D. Smolinsky, JACKSON & CAMPBELL, PC,
Washington, D.C., for Appellee.



                                    ORDER


AGEE, Circuit Judge:

                       I.    Questions Certified

     The United States Court of Appeals for the Fourth Circuit,

exercising the privilege afforded it by the Supreme Court of

Virginia through its Rule 5:40 to certify questions of law to

the Supreme Court of Virginia when a question of Virginia law is

determinative in a pending action and there is no controlling

Virginia   precedent   on    point,   requests      the   Supreme   Court   of

Virginia   to   exercise    its   discretion   to    answer   the   following

three questions:

     1.   Does the Virginia Consumer Real Estate Settlement
     Protection Act, Va. Code Ann. § 6.1-2.19 et seq.
     (recodified at Va. Code Ann. § 55-525.16 et. seq.)
     (“CRESPA”) 1 recognize a private cause of action that
     may be asserted against a surety and the surety bond
     issued pursuant to Va. Code Ann. § 6.1-2.21(D)(3)


     1
       At the time of its promulgation in 1997, CRESPA was
codified at Va. Code Ann. § 6.1-2.19 et seq. After the entry of
final judgment below, CRESPA was amended and recodified at Va.
Code Ann. § 5-525.16 et seq. Because the former section numbers
were used by the district court in its rulings and the parties
in their briefs, we likewise utilize them herein.


                                      2
      (recodified at § 55-525.20(B)(3)) by                   a   party     other
      than the State Corporation Commission?

      2.   If Question 1 is answered in the negative, does
      Virginia law nonetheless permit a cause of action
      against a surety and the surety bond issued pursuant
      to Va. Code Ann. § 6.1-2.21(D)(3) (recodified at § 55-
      525.20(B)(3)) by the assertion of a common law claim
      such as for breach of contract as in this case?

      3.    If Questions 1 or 2 are answered in the
      affirmative, does a title insurance company have
      standing, either in its own right or as a subrogee of
      its insured, to maintain a cause of action against a
      surety and the surety bond issued pursuant to Va. Code
      Ann.    § 6.1-2.21(D)(3)    (recodified    at    § 55-
      525.20(B)(3))?

      This court acknowledges that the Supreme Court of Virginia

may   restate        any   of   these   questions.     See       Va.    Sup.    Ct.   R.

5:40(d).


                       II.   Nature of the Controversy and
                             Statement of Relevant Facts 2

      As noted by the United States District Dourt below, “[t]his

action arises from a real estate transaction gone awry.”                         (J.A.

793.)      An    individual      owner    of   residential       real   property      in

Alexandria,          Virginia    sought   to    refinance,       through       SunTrust

Mortgage, Incorporated (“SunTrust”), his existing mortgage debt.

First American Title Insurance Company (“FATIC”) provided title

insurance       to    SunTrust   for    the    refinancing   through       its     title

agent, First Alliance Title Company (“First Alliance”).                          First

      2
       Additional facts relevant to other issues on appeal, but
unrelated to the certified questions, have been omitted.


                                           3
Alliance    also        conducted        the       closing       for    the     refinance

transaction. 3        As required by CRESPA, First Alliance obtained a

$100,000 surety bond (“the CRESPA Bond”) from Western Surety

Company (“Western”).            The CRESPA Bond binds the surety to pay

“any aggrieved person who may be injured by the Principal”                             and

allows “any aggrieved person” to “maintain an action in its own

name against this bond.”             (J.A. 118.)

      At settlement, an employee of First Alliance diverted the

funds received from SunTrust, which were designated to pay off

the   existing    mortgages         on   the      real    property,     so    that   those

mortgages were not paid and the deeds of trust securing that

indebtedness      were       not    released.            This    diversion     of    funds

resulted    in   SunTrust’s         deed   of      trust   securing      the    refinance

indebtedness being put in position behind the existing deeds of

trust in order of priority.                   Subsequently, the property owner

defaulted     under      the       original       mortgages,      and   the     mortgagor

foreclosed, resulting in the bankruptcy of the property owner.

Foreclosure      by    the     existing       mortgagor         wiped   out    SunTrust’s

secured interest in the property, causing a loss of $734,296.09

to SunTrust.          FATIC paid the full amount of loss to SunTrust

pursuant to the title insurance policy it had underwritten for


      3
       The parties dispute on appeal whether First Alliance acted
as FATIC’s agent in First Alliance’s role as closing agent. See
infra at note 4.


                                              4
the refinance transaction.           FATIC then made formal demand upon

Western     for   the    $100,000    amount      of   the    CRESPA   Bond,    which

Western has refused to pay, claiming that no private cause of

action can be brought against a statutory bond created pursuant

to CRESPA.

      FATIC    instituted     this    action      against     Western    and   First

Alliance, in the Circuit Court of Fairfax County, Virginia, and

Western removed the action to the United States District Court

for   the     Eastern    District     of       Virginia,     asserting   diversity

jurisdiction under 28 U.S.C. § 1332.                  In its complaint, FATIC

asserted three separate claims for breach of contract, all based

on Western’s failure to pay FATIC under the CRESPA Bond.                         In

Count I, FATIC brought the cause of action on its own behalf.

In Count II, FATIC brought the same breach of contract claim as

subrogee of SunTrust, arguing it became subrogated to SunTrust’s

rights after FATIC made full payment of SunTrust’s claim under

the title insurance policy.           In Count III, FATIC pleaded in the

alternative that it was entitled to bring a claim as subrogee of

First Alliance, based on a settlement agreement in a separate

action.     As part of that agreement, First Alliance assigned to

FATIC any rights or claim it may have against the CRESPA Bond.

      The     district    court     below      granted      summary   judgment   in

FATIC’s favor under Count I.               It specifically found that FATIC

was an “aggrieved party” under the language of the CRESPA Bond,

                                           5
and that FATIC was entitled to maintain a common law action for

breach of contract against the CRESPA Bond.        The district court

did not reach FATIC’s alternative grounds for relief in Counts

II and III.       The district court thus concluded that Western was

obligated to pay FATIC the full amount ($100,000) of the CRESPA

Bond.       In so doing, it also rejected Western’s arguments that:

     (1) no private cause of action could be asserted against a

CRESPA Bond; and

     (2) even if a private cause of action could be brought

against a CRESPA Bond, a title insurance company is not the type

of party intended to be protected by CRESPA and thus FATIC is

not an appropriate party to bring such a claim. 4

        Western timely appealed to this Court. The parties agree

that Virginia law applies and controls the resolution of the

issues raised.

        4
       The district court also rejected Western’s arguments that:
(1) FATIC could not recover because First Alliance was acting as
FATIC’s agent when it committed the errors giving rise to the
CRESPA violation in this case, and a principal cannot recover
for the actions of its own agent; and (2) Western’s obligations
as surety were discharged by FATIC’s settlement with First
Alliance and with First Alliance’s errors and admissions
insurance carrier, Steadfast Insurance.    If necessary to reach
these issues in light of the answers given by the Supreme Court
of Virginia to our certified questions, the panel has concluded
that it would affirm the district court’s rulings as to these
issues.   Thus, they would not provide alternative grounds for
reversal such that we could avoid the questions we have
certified.   We do not include any analysis or discussion of
those issues here, however, because answers to the certified
questions may render them moot.


                                     6
        III.    Legal Discussion and Relevant Virginia Decisions

      CRESPA      applies        to   certain    transactions       involving    the

“purchase of or lending on the security of real estate located

in this Commonwealth,” Va. Code Ann. § 6.1-2.19(c), and requires

a non-attorney settlement agent to register and take other steps

to comply with the statute.                One such requirement is that an

agent must maintain a surety bond of not less than $100,000. 5

Va.   Code      Ann.   §   6.1-2.21(D)(3).         CRESPA    also    provides    for

certain penalties, restitution, and other actions to be taken by

the licensing authorities against agents who fail to comply with

CRESPA’s provisions.            See Va. Code Ann. § 6.1-2.27.



                           A.    Private Cause of Action

      The district court opined that under Virginia law, a party

could     not    bring     a    direct   statutory   claim    for    violation    of

CRESPA, finding that the statute contains no private right of

action.        See Vansant & Gusler, Inc. v. Washington, 429 S.E.2d

31,   33   (Va.    1993)        (“[When]   a    statute   creates    a   right   and

      5
       The applicable statute now requires a $200,000 bond, but
at the time of the transaction involved in this case, the
statute only required a $100,000 bond amount.     Most settlement
agents, including First Alliance here, are also required to
maintain an errors or omissions insurance policy with at least
$250,000 in coverage, and, if they have employees other than
owners and partners, a “blanket fidelity bond or employee
dishonesty insurance policy” providing a minimum of $100,000 in
coverage.   Va. Code Ann. § 6.1-2.21(D)(1)-(2).      These latter
policies and bond are not at issue in this appeal.


                                           7
provides a remedy for the vindication of that right, then that

remedy    is    exclusive   unless    the   statute     says   otherwise.”)

(citation omitted and alternation in original).            Several circuit

courts in Virginia have relied upon this principle to hold that

there is no private cause of action created by CRESPA.                    See,

e.g., Koschene v. Hutchinson, 73 Va. Cir. 108, 2007 WL 6013037,

at *2 (Va. Cir. Ct. Mar. 16, 2007); Chicago Title Ins. Co. v.

Main St. Title & Escrow, LLC, 78 Va. Cir. 68, 2008 WL 8203224,

at *2 (Va. Cir. Ct. Dec. 8, 2008), pet. for cert. denied as

premature by Chicago Title Ins. Co. v. Main St. Title & Escrow,

LLC, No. 09-0466 (Va. July 28, 2009); 6 cf. Stith v. Thorne, 247

F.R.D. 89, 95-96 (E.D. Va. 2007) (citing Va. Code Ann. § 6.1-

2.19(B)   for   the   proposition    that   CRESPA    allows   remedies    for

violations to be pursued only by the licensing authorities, not

individuals, and concluding that “CRESPA, by its own statutory

language, is clear on the issue [of whether a private cause of

action is allowed]”).       However, another circuit court apparently

permitted an action to proceed, although it was unclear whether

the basis was a CRESPA statutory right of action, a claim of

common law breach of contract, or both.               See First Am. Title

    6
       In Chicago Title Ins. Co., the circuit court applied this
same rule to expressly reject a claim against a CRESPA surety
bond. See 2008 WL 8203224, at *1-*2. As noted by Western, this
decision is the “only Virginia state court to issue a written
opinion precisely on whether CRESPA bonds may be sued upon” by a
private party. (Br. of Appellant at 27.)


                                      8
Ins. Co. v. Classic Title & Escrow, Inc., Case No. CL-2008-7383

(Va. Cir. Ct. Aug. 29, 2008) (Order Overruling Demurrer), at

J.A.   130.        To    date,    the    Supreme       Court    of    Virginia   has    not

considered the issue of whether a private cause of action is

authorized by CRESPA.

       In    this       case,    as     in    Chicago     Title       Ins.    Co.,   FATIC

characterizes its action not as a direct claim for a violation

of CRESPA, but instead as a common law claim for breach of

contract premised on the CRESPA Bond.                      FATIC’s cause of action

implicates the principle of Virginia law, relied upon by the

district court here, that common law rights of action cannot be

impliedly abrogated by statute; instead, the General Assembly

must manifest its intent to do so.                       (See J.A. at 185 (“[T]o

alter or abrogate the common law policy, the General Assembly

must manifest its intent to do so.”) (quoting Peoples Sec. Life

Ins.   Co.    v.    Arrington,        412     S.E.2d    705,    707    (Va.   1992),    and

citing to Hyman v. Glover, 348 S.E.2d 269, 271 (Va. 1986)).)

Reading CRESPA to contain no abrogation of common law rights,

the    district         court    below       reasoned    that     FATIC’s      breach   of

contract claim against the CRESPA Bond was thus permitted under

Virginia law.

       While it would appear that CRESPA contains no abrogation of

common law claims, the case at bar does not appear axiomatically

resolved.      This is so, at least in part, because the pled basis

                                               9
for    suit    here   is    FATIC’s     claim      that    the   CRESPA      Bond    is     an

enforceable contract, but that contract is created only as a

result of the CRESPA statute.                And Virginia follows the general

rule that terms and conditions in a statutory bond that either

expand liability from the statute or conflict with the statute

are void.       See Aetna Cas. & Sur. Co. v. Earle-Lansdell Co., 129

S.E.    263,    264   (Va.    1925)     (“Aetna”)         (addressing       public    works

bond, but noting “the true rule . . . is to hold the bond void

as to any condition imposed beyond what the law required, and

good so far as it was in conformity with the act.”); Branch v.

Richmond Cold Storage, 132 S.E. 848, 850 (Va. 1926) (stating

same general rule in context of suspending bonds and appellate

bonds).       Thus, if the CRESPA Bond is a statutory bond, there is

a tension between the rule reflected in Aetna and the rule that

a     statute      cannot     impliedly       abrogate         common       law     rights,

particularly if CRESPA contains no statutory private cause of

action.       How to best reconcile these rules is the basis for our

first two certified questions.

       A   brief    discussion     of     Aetna     indicates     that      it    does     not

directly       control     this   case.       Aetna       concerned     a   contractor’s

public works bond under which the general contractor obtained

the    required       statutory       bond        but   then     failed      to      pay    a

subcontractor (the plaintiff) a balance for materials and labor

supplied under the contract.                 After the general contractor was

                                             10
adjudicated bankrupt, the subcontractor sued the surety based on

language in the bond that required the surety to pay claims “for

damages, for injury to property, and for labor and material”

incurred by the principal as part of the construction contract.

129 S.E. at 264.         The surety denied liability, arguing that the

language in the bond was void because it expanded the surety’s

liability     beyond     that       required     by    the     statute,      which      only

provided in general terms that the contractor should faithfully

perform the work according to the plans and specifications in

the contract.

     While       acknowledging       the   general       rule     that     terms     in    a

statutory bond that expand the statute’s requirements are void,

the Supreme Court of Virginia concluded that a public works bond

required a slightly different approach.                       Id. at 266.       According

to   the   Aetna     court,     a    public      works    bond     differed        from    a

statutory bond like a fiduciary bond in that a fiduciary bond

involved no “voluntary contracts.” Id.                        Instead, the “rights,

duties,    and    obligations       of   the    principals       in   such      bonds     are

fixed by law, generally by statute.”                    Id. at 265.        By contrast,

“contractors’       bonds     for     public         works,     though     required       by

statutes,     must      be    construed         in     connection        with    specific

contracts.”       Id.   Therefore, liability under the bond beyond the

general parameters of the statute was enforceable because that

liability was consistent with the contract contemplated by the

                                           11
statute.       Perhaps more importantly for the analysis in the case

at bar, though, the Aetna court also concluded that, because

there was a specific statutory provision that authorized the

plaintiff to sue upon the bond, the cause of action against the

surety was allowed for that independent reason.                    Id. at 267.

       Aetna thus does not appear dispositive in this case because

the statute at issue in Aetna expressly allowed a private cause

of action to be brought against the bond. See id. By contrast,

CRESPA contains no such direct provision.                   Accordingly, no issue

arose in Aetna as to whether a private cause of action could be

maintained          against   a    bond   required     by   statute      because     the

statute expressly permitted such a proceeding.

       Additionally, neither Aetna nor any other Supreme Court of

Virginia or Court of Appeals of Virginia decision has determined

the proper characterization of a CRESPA surety bond.                        That is,

whether such a bond is a true “statutory bond” that falls within

the general rule set forth in Aetna.                   Indeed, the title of the

bond       itself    refers   to   the    statute    and    a   CRESPA   Bond   is    in

existence only because CRESPA requires it.                      (See J.A. at 774.) 7

On   that      basis,     Western     argues    that    the     CRESPA   Bond   is    a

       7
       The CRESPA Bond is titled “Bond for Title Insurance
Settlement Agent (Pursuant to Section 6.1-2.21 of the Code of
Virginia).”   (J.A. at 774.)     It lists the “Commonwealth of
Virginia” as Obligee.   The “whereas” clause likewise references
that the Principal is required under CRESPA to maintain a surety
bond. (Id.)


                                           12
statutory bond and is subject to the general rule stated in

Aetna and Branch.           As a consequence, Western contends that the

CRESPA Bond attempts to expand liability for CRESPA violations

to allow a private cause of action (in the guise of FATIC’s

common law breach of contract claim) and thus is void as to that

provision.

      Conversely, FATIC argues first that the CRESPA Bond is not

a statutory bond, and thus is not subject to the general rule

that a     statutory    bond    must    strictly        conform   to   the   statute.

FATIC     posits    that,   unlike     the   bonds      at   issue   in   Branch   and

Aetna, CRESPA does not require any particular form or terms to

be included in a CRESPA bond. 8              The standard form, published by

the State Corporation Commission (“SCC”) and used in this case,

provides that “any aggrieved person may maintain an action in

its own name against this bond to recover damages as a result of

the     Principal    breaching       any     of   the    above-mentioned      laws.”

According to FATIC, cases such as Aetna and Branch demonstrate

that a statutory bond is not one which is simply required by




      8
        CRESPA delegates to the State Corporation Commission
(“SCC”) the authority to issue “subpoenas, rules, regulations,
and orders” to effectuate CRESPA.    Va. Code Ann. § 6.1-2.25.
Consequently, the SCC, through the Bureau of Insurance, has
promulgated 14 Va. Admin. Code § 5-395-10(C) (2010) to establish
the form CRESPA Bond.


                                           13
statute, but one for which the statute prescribes the specific

terms of the bond. 9

       FATIC also argues that the Commonwealth (through the SCC)

promulgated the language of the bond and that it did so pursuant

to the language of the statute.                       It further argues that there is

nothing       in       the   CRESPA      Bond    that     is        inconsistent     with       the

purposes of CRESPA. 10

       In response, Western stresses that the CRESPA Bond language

was    promulgated           not    by     the     General          Assembly,      but    by    an

administrative            agency.        Western        challenges         whether       the    SCC

exceeded the authority granted by CRESPA in promulgating a bond

form       that    allows     a    private       cause    of    action.         (See      Br.   of

Appellant         at    25-26     (“A    state    agency,       acting      under    statutory

authorization,           cannot     rise     higher      than        the   language       of    the

statute giving it power to act by creating common law rights.

See Shilling v. Jimenez, 268 Va. 202, 207-08, 597 S.E.2d 206,

209-10      (2004)       (political       subdivision          of    the   state     could      not

       9
        But see Aetna, 129 S.E. at 266 (while discussing
differences in types of bonds, noting that both “bonds of
fiduciaries . . . and bonds of contractors doing public work”
“are required by statute and are therefore statutory”).
       10
        FATIC also contends, and the district court noted, that
refusing to recognize any private cause of action against a
CRESPA bond creates a windfall for sureties, since the SCC has
confirmed that it had not “pursued any claims on surety bonds
issued under CRESPA for the period 1997 through 2009,” but as of
2009, no person or entity other than FATIC (in this case) had
requested that a licensing authority pursue such a claim. (Cf.
J.A. at 155.)


                                                 14
create a third party right of action absent an express grant of

power via statute).”)).

     Against those arguments and legal background, we find no

clear controlling Virginia precedent to guide our decision.                   In

short, we are uncertain whether the Supreme Court of Virginia

would conclude that CRESPA permits any private cause of action.

And even if it does not, whether a common law claim for breach

of contract, as in this case, is nonetheless allowable under the

terms of the CRESPA Bond.        Accordingly, we respectfully request

that the first two certified questions be answered.



                         B.   Standing of Title Insurer

     The third certified question arises from Western’s argument

that, even if there were an implied private cause of action

under CRESPA, or a common law action against the CRESPA Bond,

FATIC nonetheless lacks standing because it is not an “aggrieved

person.”    CRESPA, by its terms, “applies only to transactions

involving the purchase of or lending on the security of real

estate . . . .”       Va. Code Ann. § 6.1-2.19(C).          Based on this

language, Western contends that FATIC is not aggrieved under

CRESPA   because   the   underlying    transaction   to   which   it    was    a

party was for the procurement of title insurance.

     Western   also      makes    several   policy    arguments        against

allowing title insurance companies, like FATIC, to recover on

                                      15
CRESPA bonds, including that: (1) the statute was not designed

to   protect    title       insurers,      but    only    “lender[s],        seller[s],

purchaser[s] or borrower[s]” (Br. of Appellant at 30-31 (citing

Va. Code Ann. § 6.1-2.20)); and (2) that allowing FATIC and

other   title       insurers     to    recover    against       CRESPA      bonds    would

provide entities whose very business is to evaluate risk, after

recovering      from      various       insurance       policies      and    applicable

contracts,     to    have      yet    another    source    of     recovery,    “leaving

those     parties     for      whose    protection       CRESPA      was    enacted     to

scramble     for     an   ever-dwindling         remedial       source.”       (Br.     of

Appellant at 33.)              In effect, Western argues that if FATIC has

standing, it would make statutory sureties reinsurers and not

sureties.

     In     response,       FATIC      posits    that,     under      the    plain     and

unambiguous language of the CRESPA Bond, FATIC was an “aggrieved

person” entitled to bring a direct claim under the bond.                             FATIC

contends that permitting an “aggrieved person” to recover under

the CRESPA bond is consistent with the statute which requires a

settlement     agent      to    maintain   such     a    bond   as    a    condition    of

licensure      in    order      to     compensate       persons      injured    by     the

settlement agent’s negligence or misconduct.                         It contends that

the form of the bond is consistent with the purposes of CRESPA,

as is allowing recovery against a CRESPA Bond by a title insurer

who has paid a claim as a result of a violation of CRESPA.

                                           16
     Again,       we    find   no    controlling      Virginia      authority     that

answers the question of a title insurer’s standing to bring a

cause of action under CRESPA, or a claim against a CRESPA Bond,

if either of those actions are permitted under Virginia law.                       We

therefore respectfully request that, if either of the first two

certified questions are answered in the affirmative, that the

third certified question also be answered.



          IV.    Certified Questions Determine This Proceeding

     As required by Va. Supreme Court Rule 5:40, the questions

we have certified are determinative of the proceeding here.                        If

either    of    the    first   two       certified   questions,     and   the   third

certified question, are answered in the affirmative, then the

district court’s decision below was correct, and the judgment in

favor of FATIC will be affirmed. 11                  If, however, the certified

questions       are    answered     in    the    negative,   then    FATIC   is    not




     11
        As indicated supra at note 4, we conclude that the
district court’s resolution of the remaining issues before us
was correct.   That is, we agree with the district court that
First Alliance was not FATIC’s agent for purposes of the
settlement and closing, and further agree with the district
court that Western was not discharged as a result of FATIC’s
settlement with either First Alliance or Steadfast Insurance.
Accordingly, the case will turn on whether or not FATIC may
assert a direct claim under CRESPA or a breach of contract claim
against the CRESPA Bond and, if so, whether it has standing to
do so.


                                            17
entitled to summary judgment, and the judgment of the district

court will be reversed.



                 V.   The Parties and Their Counsel

                                     A.

     The   Plaintiff-Appellee   is    First   American   Title   Insurance

Company.   Counsel for the Plaintiff-Appellee is:

David H. Cox, VSB number 19613
     dcox@jackscamp.com
Paul Smolinsky, VSB number 43218
     psmolinsky@jackscamp.com
Jackson & Campbell, PC
Suite 300S
1 Lafayette Centre
1120 20th Street, NW
Washington, DC 20036-3437
(202) 457-1600 (Telephone)
(202) 457-1678 (Facsimile)


                                     B.

     The    Defendant-Appellant       is   Western   Surety      Insurance

Company.   Counsel for Defendant-Appellant is:

Richard Thomas Pledger, VSB number 28102
     rpledger@wallacepledger.com
Thomas Joseph Moran, VSB number 71296
     tmoran@wallacepledger.com
Erick Frank Seamster, VSB number 76108
     eseamster@@wallacepledger.com
WallacePledger, PLLC
The Capstone Center
7100 Forest Avenue, Suite 302
Richmond, VA 23226
(804)282-8300 (Telephone)
(804) 282-2555 (Facsimile)



                                     18
                                VI.   Conclusion

     Pursuant      to   the     privilege     made    available    by   Virginia

Supreme Court Rule 5:40, we respectfully:


     (1) Certify the questions stated in Part I of this

     Order    of    Certification       to    the     Supreme   Court   of

     Virginia for resolution;



     (2)     Order the Clerk of this Court to forward to the

     Supreme Court of Virginia, under the official seal of

     this court, a copy of this Order of Certification,

     together with the original or copies of the record

     before    this     court    to   the    extent    requested   by   the

     Supreme Court of Virginia; and



     (3) Order that any request for all or part of the

     record be fulfilled by the Clerk of this court simply

     upon notification from the Clerk of the Supreme Court

     of Virginia.

                                                      QUESTIONS CERTIFIED

                                                      FOR THE COURT

                                                      /s/ G. Steven Agee




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