Present:   All the Justices

WESTLAKE PROPERTIES, INC., ET AL.
                                           OPINION BY
v.   Record No. 060518          JUSTICE LAWRENCE L. KOONTZ, JR.
                                        January 12, 2007
WESTLAKE POINTE PROPERTY
 OWNERS ASSOCIATION, INC.

               FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
                     William N. Alexander II, Judge

      This appeal arises from a judgment of the trial court

confirming a jury verdict in favor of a property owners’

association against the corporate developer and the corporate

contractor for construction of a townhome community.       The

property owners’ association maintained that as a result of

negligence in development and construction, the septic system

serving the community was damaged when massive soil erosion

occurred on the community property.    The sufficiency of the

evidence to support this negligence claim is not at issue in

this appeal.    The principal issues we consider are whether the

property owners’ association had standing to bring the action on

its own behalf and, if so, whether the individual property

owners were nonetheless necessary parties to the action.         We

also consider whether an improper attempt to impeach a witness

was adequately cured by a cautionary instruction to the jury and

whether the jury was correctly instructed on the issue of

proximate causation and the proper measure of damages.
                            BACKGROUND

     Westlake Pointe is a townhome community located on Smith

Mountain Lake in Franklin County.   Westlake Properties, Inc.

began development of Westlake Pointe in 1998.1   In an original

declaration of covenants, conditions and restrictions recorded

among the land records of Franklin County on May 1, 1998,

Westlake Properties stated its intention, among other things, to

establish “Limited Common Easements . . . which shall be

easements to locate, maintain, repair, operate and replace sewer

lines, septic systems and drainfields on the common area

designated for drainfield use and within any sewer line, septic

system or drainfields designated upon land adjoining the

property.”   In that declaration, Westlake Properties further

stated that it had “incorporated under the laws of the

Commonwealth of Virginia, as a non-profit corporation, Westlake

Pointe Property Owners Association, Inc.” (“the Association”).

The express purpose for creating the Association was to delegate




     1
      Realty Services, Inc. served as general contractor for the
development of Westlake Pointe and is also a party to this
appeal. Realty Services is wholly owned by Wayne Yeatts, one of
the principals of Westlake Properties, Inc. Yeatts acknowledged
that in the development and construction of Westlake Pointe, the
two entities worked in concert and essentially functioned as
one. For convenience, hereinafter we will refer to the
appellants jointly as “Westlake Properties.”
                                   2
to it “the powers of maintaining and administering the Community

facilities” including the septic system.

     The declaration also provided that “[t]he Developer will be

the initial owner of the sewage disposal system . . . and also

of the permit issued by the state health commissioner for the

construction, maintenance, and operation of the septic tank and

drainfield sewage disposal system.”    The declaration further

provided that “[t]he permit and ownership of the sewage disposal

system including the drainfield or Limited Common Easements and

the Common Areas upon which said easements are located . . . and

[the Developer’s] responsibilities [to maintain and repair the

system] will be transferred to the Association” upon substantial

completion of the development or sale of seventy-five percent of

the townhomes.

     Westlake Pointe was subsequently developed to consist of

forty-six separately owned townhomes in eight buildings.    As

originally designed, the septic system included eleven septic

tanks and pump stations to service all the townhomes in the

development.   Individual sewer lines connected each townhome to

one of the eleven septic tanks.   Most of these septic tanks and

the other fixtures of the septic system were installed in a

slope, which was located behind four of the buildings and

between them and the waterline of the lake.   Effluent from the

                                   3
septic tanks was pumped to a drainfield located several hundred

yards from the development.   The drainfield was part of the

common property that ultimately was deeded to the Association.

Most of the fixtures of the septic system were located on lots

that abutted and included portions of the slope which ultimately

was deeded to the individual owners of the townhomes.

     In addition to the construction and installation of the

septic system, the engineering design specifications of the

Westlake Pointe development plans called for the soil of the

slope, where the principal fixtures of the septic system would

be located, to be filled, compacted, and graded in a specific

manner to prevent excessive erosion and runoff.   Westlake

Properties does not contest that it deviated significantly from

these specifications for covering the septic system with the

specified fill dirt and compacting and grading the slope.    The

evidence showed that Westlake Properties negligently failed to

use the proper quality of fill material, did not adequately

compact the fill material used, and did not contour the slope to

the recommended grade.

     After Westlake Pointe was fully developed, Westlake

Properties turned control of the Association over to the

property owners on May 2, 2003.   With the transfer of control,

as provided by the declaration, the Association became the

                                   4
record owner of the common areas of the community, including the

fixtures that made up the infrastructure of the common portions

of the septic system, as well as the permit issued by the state

health commissioner for its operation.

     The Association’s articles of incorporation expressly

require it “to manage and [e]nsure the maintenance, repair,

replacement and operation of the septic systems.”   The

Association is required further to maintain the septic system

“in compliance with the applicable state and local laws,

ordinances, and regulations.”   To that end, the Association is

authorized to make assessments on the property owners to pay for

the maintenance and repair of the septic system.    Under the

provisions of a recorded dedication of easements pertaining to

Westlake Pointe, the individual property owners are required to

maintain the sewer lines that connect their townhomes to the

common fixtures of the septic system, and the Association has an

easement to come onto the property of an individual property

owner to repair or maintain the fixtures of the septic system.

     Prior to the transfer of control to the Association and

with it the obligation to maintain and repair the septic system,

the property owners had reported to Westlake Properties numerous

problems with the slope where the common fixtures of the septic

system were located.   Specifically, there had been multiple

                                   5
instances of soil erosion, known as “washouts,” as well as

resulting structural damage to various fixtures of the septic

system.   Westlake Properties took remedial efforts to repair the

damage and rectify the situation, but problems with soil erosion

along the entire slope persisted.

     From August 9 to August 10, 2003, heavy rain in the Smith

Mountain Lake area resulted in a catastrophic failure of the

Westlake Pointe septic system.   Due to excessive erosion in the

slope, the septic tanks and pump stations that served a number

of the townhomes were completely exposed and damaged in place or

were dislodged entirely from their proper placement in the

system so that they were no longer capable of functioning.    The

erosion rapidly spread along the slope behind other buildings.

As a result of the exposure and damage to the septic tanks and

pump stations, the entire community was inundated by the smell

of the raw sewage.

     The Franklin County Health Department investigated the

damage to the Westlake Pointe septic system and directed the

Association to “come up with a plan of action . . . to keep the

sewage system operational and keep sewage off the ground and out

of [Smith Mountain Lake].”   The Association was given fourteen

days to hire an engineer and report back to the Department.

According to the Department, the order was directed to the

                                    6
Association as the party “legally responsible” for the

maintenance and repair of the septic system.

     The Association obtained estimates from several engineers

for making repairs to the septic system and ultimately hired ACS

Design LLC to devise a plan to address the erosion of the slope

that was the origin of the problem with the system.      ACS Design,

along with the general contractor hired to perform the

anticipated repair work and a consulting geotechnical

engineering firm, determined that the septic system would need

to be entirely redesigned.   This would require the relocation of

most of the septic system’s infrastructure, removal of the

existing fixtures of the system, and construction of a retaining

wall to prevent future erosion.

     According to Dan Early, the ACS Design engineer who

designed the plan for the new septic system, the decision not to

attempt to restore the system in accord with the original

development plan was reached because the erosion of the slope

made it “impossible to develop a repair [plan] that was

specified on the original design.”       Early further stated that to

repair the system so that it would be as originally designed

could not have been achieved within the same budget and time

frame that would be required to install the newly designed

system.

                                     7
     After the plan to replace the septic system was approved by

the health department, the Association voted to assess each

homeowner $13,050 to cover the cost of the construction.    The

Association further determined, and advised the individual

property owners, that it would seek to recover the cost of

repairing the septic system from Westlake Properties.   According

to Philip H. Martin, an officer of the Association, it was

“assumed that any recovery [from Westlake Properties] would be

redistributed to the record members of the Association” at the

time the special assessment was made.   However, Martin further

stated that “[n]o official decision has been made on that

issue.”

     On June 17, 2004, the Association filed a motion for

judgment against Westlake Properties seeking $750,000 in damages

under theories of negligence, breach of an implied warranty,

breach of contract, and indemnity.2   Westlake Properties

responded to the motion for judgment by filing a plea in bar.

As relevant to this appeal, Westlake Properties contended that

“the Association lacks standing to bring this action” because

the septic system “is not owned by the Association but is owned



     2
      The motion for judgment was filed in the Circuit Court of
the City of Roanoke. Before any material proceedings occurred,
however, the case was transferred to the Circuit Court of
Franklin County.
                                   8
instead by the individual property owners who are not parties to

this action.”   In a responding brief, the Association contended

that it had standing to bring the action because it had a legal

obligation to maintain the septic system.

     In an order dated August 15, 2005, the trial court denied

Westlake Properties’ plea in bar, finding that the Association

had standing to bring the action.   The trial court further

ruled, however, that the Association “cannot proceed as a

representative of the individual property owners.”

     Following entry of the trial court’s order denying the plea

in bar, Westlake Properties filed a motion for reconsideration

alleging that during a deposition, Martin had conceded that the

Association was acting in a representative capacity for the

property owners.   Westlake Properties alleged that this

concession established both that the Association had no legal

claim against Westlake Properties and that, even if it did, the

property owners were nonetheless necessary parties to the

action.   While conceding that the property owners might

ultimately benefit from any recovery from Westlake Properties,

the Association maintained that it sought to recover damages

incurred by the Association and, thus, it was neither acting in

a representative capacity for the property owners, nor were they

necessary parties to the action.

                                    9
     In an order dated September 28, 2005, the trial court

denied Westlake Properties’ motion for reconsideration of the

standing issue and further ruled that the property owners were

not necessary parties to the action.   In that order, the trial

court adopted by reference the findings of fact and rationale

for its ruling as stated in the hearing on the motion for

reconsideration:

     I still did not see how the homeowners’ association is
     proceeding in a representational capacity. They are
     doing exactly what they are required to do.

          It is not the individual [property owner’s]
     damage, even though [the Association] might end up
     distributing any money collected to the homeowners.

          The [property owners] are not the people damaged.
     The damage has been done to the [A]ssociation because
     they are the ones required by the articles and by the
     way the corporation has been set up to maintain, to
     replace, to repair the damage, if any, and the whole
     system.

      . . . .

     It doesn’t make the [property owners] necessary
     parties because the . . . [A]ssociation still will not
     be coming in and testifying about individual losses.
     It is not [the property owners’] loss. It is the
     [A]ssociation’s loss, and I don’t think the homeowners
     are necessary parties in this.

          The necessary party is the [A]ssociation.

     By leave of the trial court, the Association filed an

amended motion for judgment on November 23, 2005; however, the

amended motion for judgment did not differ materially from the

                                  10
original motion for judgment.   Westlake Properties filed a plea

in bar to the amended motion for judgment in which it restated

its assertions that the Association lacked standing to bring the

action and was acting in a representative capacity for the

property owners, who, Westlake Properties again contended, were

necessary parties to the prosecution of the action against it.

The trial court did not rule on the plea in bar to the amended

motion for judgment until the conclusion of the trial, at which

time it was summarily overruled.

     In a jury trial beginning December 8, 2005 and continuing

for five days, the trial court received evidence in accord with

the above-recited facts.3   Because the issues raised in this

appeal relate to actions of the trial court that arose during

distinct incidents of the proceedings, we will recite additional

relevant evidence and the nature of the proceedings pertinent to

those issues within our discussion.     At the conclusion of the

trial, the jury found that Westlake Properties was negligent in



     3
      Immediately prior to trial, upon motion of Westlake
Properties to require an election of remedies, the trial court
directed that the trial would be bifurcated, with the jury first
determining the negligence claim, and that the trial would
proceed to the contract, warranty, and indemnity claims only “if
necessary.” The Association objected to the trial court
requiring it to elect its remedy and to the bifurcation of the
trial, but has not assigned cross-error to those rulings.
Accordingly, we will express no opinion thereon.

                                   11
its construction of the septic system and awarded the

Association $641,788.43.   The parties agree that this amount is

the precise cost of removing the damaged original system,

constructing the replacement septic system, and regrading the

slope.   In a final order dated January 12, 2006, the trial court

confirmed the jury’s verdict and award of damages, overruling

Westlake Properties’ motion to set aside that verdict as

contrary to the law and the evidence.

                            DISCUSSION

     This Court awarded Westlake Properties an appeal limited to

the following assignments of error:

          1. The trial court properly ruled before trial
     that the Association could not proceed in a
     representational capacity but erred thereafter by
     permitting the Association to proceed in a
     representational capacity to recover damages for
     nonparty property owners.

          2. The trial court erred by ruling that the
     Association otherwise had standing.

          [3]. The trial court erred by concluding that
     individual property owners were not necessary parties.

          [4]. Where the Association called Westlake
     Properties’ president to the stand for the purpose of
     informing the jury that the president had been
     convicted of a felony, the trial court erred by
     denying defendants’ motions for mistrial on that and
     other grounds.

          [5]. The trial court improperly instructed the
     jury concerning liability and damages[:] (a) Where
     the Association told the jury in opening statement
     that the jury would address the question of whether
                                  12
     the slope failure was caused by the August 2003 storm
     and offered evidence accordingly, the trial court
     erred by taking that question away from the jury and
     by ruling that defendants could not argue that the
     slope failure was caused by excessive rainfall and the
     August 2003 storm[; and] (b) The trial court also
     improperly instructed the jury concerning the measure
     of damages.

                   Standing and Necessary Parties

     Westlake Properties initially contends that the trial

court’s pre-trial ruling that the Association could not act in a

representative capacity for the individual property owners

constitutes a factual finding that the Association was, in fact,

attempting to act in that capacity.   Westlake Properties further

contends that subsequent events at trial show that, despite the

trial court’s order, the Association continued to act as the de

facto representative of the property owners, rather than

pursuing any claim of its own.

     In support of these contentions, Westlake Properties notes

that in his opening statement, counsel for the Association

referred to the trial as an opportunity to “bring out into the

light . . . the situation through which Westlake Pointe Property

Owners Association and its members, [t]he folks who are here –

many of whom are here out in the audience today, . . . lived the

last few years.”   The Association’s counsel later stated,

referring to the property owners, that “the folks . . . living

here at the lake [in] this development . . . are complaining
                                  13
about the fact that they had to lay out of their [own] pocket[s]

$641,000 of their own money.”

     After the opening statements were made and outside the

presence of the jury, Westlake Properties contended that counsel

for the Association had, by making reference to the property

owners in his opening statement, conceded both that the

Association lacked standing to proceed on its own and that the

property owners were necessary parties to the case.    The trial

court, while rejecting these contentions, nonetheless admonished

counsel for the Association that “you are representing the . . .

Association; you’re not representing the individual homeowners

. . . .   Keep the record clear.”

     Contrary to the interpretation made by Westlake Properties,

nothing in the trial court’s August 15, 2005 order suggests that

it made a factual finding that the Association had been

attempting to proceed jointly or solely as a representative of

the individual property owners.     Rather, the trial court was

clear in its ruling that the Association had independent

standing to maintain the action in its own name, that this was

the only basis upon which the Association could present its case

to the jury, and that the Association could not “proceed as a

representative of the individual property owners.”    These

findings were emphasized in the trial court’s summation,

                                     14
subsequently incorporated into its September 28, 2005 order, at

the conclusion of the hearing on Westlake Properties’ motion to

reconsider.

     The isolated comments made by counsel for the Association

during opening statements, when viewed out of context, might

well imply representation of the individual property owners.

These comments do not, however, constitute an “admission” that

the Association was acting in a representative capacity for the

individual property owners.   Rather, we are of opinion that

these comments were merely references to the property owners

collectively as the members of the Association; references that

were at worst irrelevant and certainly far short of an admission

or an assertion of representative capacity by the Association in

this suit.

     We recognize that although opening statements are not

evidence, the introduction of irrelevant or prejudicial issues

by counsel during opening statements can be grounds for a

mistrial.    See, e.g., Forsberg v. Harris, 238 Va. 442, 445, 384

S.E.2d 90, 91-92 (1989)(counsel’s mentioning that defendant was

employed in the insurance industry was grounds for setting aside

verdict).    Here, the full context of counsel’s opening statement

made clear to the jury that the issue before it would be whether

and to what extent the Association was damaged by Westlake

                                    15
Properties’ negligence.   The evidence subsequently presented at

trial was limited to that claim for damages.   Accordingly, we

hold that the Association was not acting in a representative

capacity for the individual property owners with respect to any

individual damages they may have suffered as a result of

Westlake Properties’ negligence.4

     We turn now to Westlake Properties’ principal contention

that even if the Association was not acting in a representative

capacity for the individual property owners, the trial court

erred in ruling that the Association had independent standing to

proceed against Westlake Properties for the damage to the septic

system.   In this regard, Westlake Properties reasons that

although it conveyed to the Association the common areas of the

development, the real property comprising the slope where the

erosion occurred and where the majority of the common fixtures

of the original septic system were located was deeded to



     4
      Our analysis is not altered by the likelihood that the
Association has an agreement, or at least an informal
understanding, that any recovery from the litigation would be
distributed to the individual property owners. Such a
distribution would be entirely in keeping with the nature and
purpose of the Association under the circumstances of this case.
The Association is not intended to be a for profit enterprise.
To the extent that fees and assessments paid by the members
exceed the expenses incurred by the Association and a reasonable
reserve, it is not improper for excess funds, however acquired,
to be returned pro rata to the membership.

                                    16
individual property owners whose townhomes abut the slope.

Westlake Properties further reasons that the Association’s

obligation to maintain the septic system is secondary to that of

the individual property owners, who are required by the recorded

documents to “maintain[], repair or replace[] . . . the sewage

lines within [each] lot [owned] by the [individual] lot

owner[s].”    Accordingly, Westlake Properties concludes that the

Association could not establish damages independent from the

damages incurred by the individual property owners on their

lots.    We disagree.

        A party has standing if it can “show an immediate,

pecuniary, and substantial interest in the litigation, and not a

remote or indirect interest.”    Harbor Cruises, Inc. v. State

Corp. Comm., 219 Va. 675, 676, 250 S.E.2d 347, 348 (1979) (per

curiam).    “The concept of standing concerns itself with the

characteristics of the person or entity who files suit.      The

point of standing is to ensure that the person who asserts a

position has a substantial legal right to do so and that his

rights will be affected by the disposition of the case.      In

asking whether a person has standing, we ask, in essence,

whether he has a sufficient interest in the subject matter of

the case so that the parties will be actual adversaries and the

issues will be fully and faithfully developed.”    Cupp v. Board

                                     17
of Supervisors of Fairfax County, 227 Va. 580, 589, 318 S.E.2d

407, 411 (1984)(internal citation omitted); see also Grisso v.

Nolen, 262 Va. 688, 693, 554 S.E.2d 91, 94 (2001); Goldman v.

Landsidle, 262 Va. 364, 371, 552 S.E.2d 67, 71 (2001).

     It is clear, as Westlake Properties contends, that the

Association did not own the real property, that is the slope,

where the majority of the common fixtures that made up the

original septic system were located.     On this record, it is also

beyond dispute that the Association owned, and was the party

legally responsible for the maintenance and repair of, the

fixtures of the septic system that served the entire

development.   Westlake Properties’ assertion that the individual

property owners had the primary responsibility to maintain the

septic system as a whole is simply contrary to clear and

unambiguous express provisions of the pertinent recorded

documents which require the individual property owners to

maintain their individual sewer lines between their townhomes

and the common septic system, but places responsibility for

maintenance and repair of the common fixtures of the system

exclusively with the Association.

     It also cannot be disputed that in order to function as

designed, the original septic system was required to be placed

in ground that had been properly graded and compacted to avoid

                                    18
excessive erosion.   Thus, even though the Association did not

own the real property, the damage caused to the septic system by

the erosion of the slope injured the Association and it had “an

immediate, pecuniary, and substantial interest” in recovering

for that damage.   Accordingly, we hold that the trial court did

not err in ruling that the Association had standing to bring

this action against Westlake Properties.

     We turn now to Westlake Properties’ contention that the

individual property owners were necessary parties in this suit.

Westlake Properties asserts that “the interests of individual

property owners were so ‘bound up’ with the interest of the

Association that the presence of the property owners . . . was a

necessity,” and their absence as parties deprived the trial

court of the power to render complete justice.   Westlake

Properties maintains that this is so, in part, because a portion

of the damages sought by the Association included the regrading

of the slope and installation of a retaining wall.   It further

maintains that there is the possibility that individual property

owners might have claims against Westlake Properties for damages

unrelated to the septic system and, thus, that it may be

subjected to further litigation.   Accordingly, Westlake

Properties contends that even if the Association had standing to

proceed in the matter, the trial court erred in failing to find

                                   19
that the individual property owners were nevertheless necessary

parties to the action.   Again, we disagree.

     It is a matter of common knowledge that fixtures comprising

a septic system are installed below the surface of the soil.     It

follows then that the process of repairing or replacing a

damaged septic system necessarily requires invasion of the soil

and the subsequent restoration of the real property where the

damaged and replaced fixtures of the system were located and

where the new fixtures are installed.    In this case, the

Association was given easements over the lots of the individual

property owners so that it could satisfy its duty to maintain

and repair the sewer system.    As the owner of the dominant

estate, the Association had the duty to maintain those easements

in a manner consistent with the use allowed.   Here that duty

required the restoration of the disturbed real property in which

the sewer system was located.   See Anderson v. Lake Arrowhead

Civic Ass'n, 253 Va. 264, 273, 483 S.E.2d 209, 214 (1997);

Pettus v. Keeling, 232 Va. 483, 490, 352 S.E.2d 321, 326 (1987).

Thus, to the extent that the Association’s damages include

repairs and improvements to real property owned by individual

property owners, those damages were nonetheless direct damages

incurred by the Association as a result of its obligation to

maintain and repair the septic system.

                                    20
     A necessary party is one who has an interest in the subject

matter of the litigation that is likely to be defeated or

diminished by the litigation.   Raney v. Four Thirty Seven Land

Co., 233 Va. 513, 519, 357 S.E.2d 733, 736 (1987).   While the

individual property owners may have had, and may still have,

claims against Westlake Properties for other damage suffered as

a result of its negligence, the repair of the damaged slope was

a natural consequence of the Association’s duty to maintain the

septic system and the easements in which the fixtures of the

system were located.   By seeking recovery only for the direct

damages it incurred, the Association’s action against Westlake

Properties neither implicated nor imperiled any claim by an

individual property owner for damages not related to the

replacement of the damaged septic system.   Accordingly, we hold

that the trial court did not err in ruling that none of the

individual property owners were necessary parties to the action

filed by the Association.

                Impeachment of an Adverse Witness

     During its case-in-chief, the Association called Coy

Cooper, president of Westlake Properties, as an adverse witness.

At the outset of Cooper’s testimony, the Association’s

co-counsel asked, “Now, Mr. Cooper, in this case in front of the

jury we’re trying to get some of the truth out here, and one of

                                   21
the truths that’s in this case is [that] you’ve been convicted

of a felony, correct?”    Counsel for Westlake Properties

immediately objected to the question, and the witness did not

answer the question.    The trial judge retired to chambers with

counsel for both parties.    The conference in chambers was not

recorded.    Thereafter, Cooper completed his direct testimony and

the proceeding was continued with the understanding that the

issue would be considered further.

        On the next day of the trial, Westlake Properties expanded

its objection to the attempt to impeach Cooper to include a

motion for mistrial.    The Association agreed to withdraw the

question, but contended that a cautionary instruction to the

jury would be sufficient to cure any harm the question may have

caused.    Westlake Properties contended that a mistrial was the

only proper course as “cautionary instructions are of little

efficacy and in fact may highlight the thing that we are all

trying to minimize.”    Over Westlake Properties’ objection, the

trial court denied the motion for mistrial and instructed the

jury that the “question was an improper question, it should not

have been asked, and I am telling you now to just disregard the

fact that that question was asked and do not consider it in any

way.”



                                     22
     During oral argument of this appeal, the Association’s

appellate counsel acknowledged that the question posed to Cooper

was improper and attributed that error to the fault of an

inexperienced associate counsel who had not adequately

researched the issue.   Even accepting this explanation, it

appears from the record that the question was posed to impeach

Cooper in a manner calculated to have the most dramatic effect

on the proceedings and with no identifiable purpose other than

to impugn the character of the witness.   We condemn in the

strongest possible terms the use of such tactics, even if they

result from the inexperience of counsel rather than the

purposeful disregard of procedural rules.   The issue remains,

however, whether the trial court properly denied the motion for

a mistrial.

          “The decision whether to grant a motion for a
     mistrial is a matter submitted to the trial court's
     sound discretion.” Lowe v. Cunningham, 268 Va. 268,
     272, 601 S.E.2d 628, 630 (2004) (citation omitted).
     Generally, “absent a manifest probability of prejudice
     to an adverse party, a new trial is not required when
     a court sustains an objection to an improper remark or
     question by counsel and thereafter instructs the jury
     to disregard the remark or question.” Id. at 272, 601
     S.E.2d at 630. However, “when the prejudicial effect
     of an improper remark or question is overwhelming,
     such that it cannot be cured by a cautionary
     instruction,” a trial court must grant a new trial, if
     requested. Id. at 273, 601 S.E.2d at 631. In
     determining whether [the remark or question] is so
     inherently prejudicial that a cautionary instruction
     cannot cure the prejudice, several factors must be
     considered. Those factors include “the relevance and
                                  23
     content of the improper reference, . . . whether the
     reference was deliberate or inadvertent[, and] the
     probable effect of the improper reference.” Id. at
     273, 601 S.E.2d at 631.

Castle v. Lester, 272 Va. 591, 610-11, 636 S.E.2d 342, 353

(2006).

     Westlake Properties notes that in Smith v. Lohr, 204 Va.

331, 336-37, 130 S.E.2d 433, 437 (1963), this Court held that a

trial court erred in overruling a motion for mistrial when a

party was called as an adverse witness for the sole purpose of

impeaching him through evidence of a prior felony conviction.

Our decision in Smith can be distinguished on the ground that

here the trial court did not permit the impeachment question to

be answered and instructed the jury to disregard the question

and not to speculate on the answer that might have been given.

Moreover, the verdict ultimately rendered by the jury does not

suggest that it was influenced by this isolated incident, as

that verdict is wholly in accord with the relevant evidence.

Cooper did not materially deny the negligence of Westlake

Properties and Wayne Yeatts, vice-president of that corporation,

virtually conceded that negligence during his testimony that no

compaction tests were made of the soil used to fill around the

septic tanks and no effort was made to ensure that the final

contour of the slope was achieved as specified by the engineers.

Accordingly, we hold that the trial court, under the particular
                                  24
circumstances of this case, did not abuse its discretion in

denying Westlake Properties’ motion for mistrial and instead

exercising its discretion to issue a curative instruction to the

jury.5

                     Jury Instruction Issues

     The principal point of contention between the parties was

whether the erosion of the slope and the attendant damage to the

septic system had been caused by the alleged negligence in the

construction of the septic system or was the result of unusually

heavy rain during the period preceding the significant erosion

in August 2003.

     At the conclusion of all the evidence, the Association

sought to preclude Westlake Properties from arguing that the

damage was solely caused by the unusually heavy rain as an act

of nature otherwise known as a force majeure defense.   Relying

upon Cooper v. Horn, 248 Va. 417, 448 S.E.2d 403 (1994), the

Association contended that in order to be entitled to assert

such a defense, Westlake Properties was required to show that no

human agency was a contributing factor in the damage incurred,



     5
      Westlake Properties’ assignment of error also asserts that
the trial court erred in denying its motion for mistrial on
“other grounds.” We will not address such a general and
unspecific assertion of error. See Yeatts v. Murray, 249 Va.
285, 290-91, 455 S.E.2d 18, 21-22 (1995).

                                  25
and that the heavy rain “ ‘was the sole proximate cause of the

injury.’ ”   Id. at 425, 448 S.E.2d at 408 (quoting Southern Ry.

v. Neal, 146 Va. 229, 239, 135 S.E. 703, 706 (1926)) (emphasis

added).    The trial court sustained the Association’s motion,

with Westlake Properties noting its objection.

     Relevant to this issue, the Association offered and was

granted the following jury instruction:

          If you find that the defendants or either of them
     are negligent and the negligence of either or both of
     them was a proximate cause of the plaintiff’s loss,
     then you shall find your verdict for the plaintiff
     regardless of the rain.

(Emphasis added).

     Westlake Properties objected to this instruction,

contending that “it would be possible for the jury to find from

[the] evidence that neither [of the] defendants were negligent

and that the cause of the slope failure was, in fact, [an]

extreme storm, the rain.”   Westlake Properties proffered a

general instruction on superseding cause, which the trial court

refused.   Westlake Properties did not proffer a specific

instruction on a force majeure defense.

     On appeal, Westlake Properties maintains that the trial

court erred in granting the Association’s jury instruction

because it removed from the jury the determination of causation

by requiring the jury not to consider whether the rain was a

                                    26
proximate cause of the failure of the slope.   Thus, according to

Westlake Properties, the jury was left essentially to conclude

that the failure of the slope must have been caused by Westlake

Properties’ negligence.

     “There may be more than one proximate cause of an event.”

Molchon v. Tyler, 262 Va. 175, 182, 546 S.E.2d 691, 696 (2001);

Panousos v. Allen, 245 Va. 60, 65, 425 S.E.2d 496, 499 (1993).

While it is self–evident that the rain must have been a

proximate cause of the erosion of the slope, the record evidence

would not have supported a defense by Westlake Properties that

the rain was the sole proximate cause of the failure of the

slope.

     By precluding the jury from considering the factor of the

rain, the trial court did not, as Westlake Properties suggests,

direct the jury to find that Westlake Properties was negligent

and that its negligence caused the failure of the slope.

Rather, the instruction properly focused the jury on the

question of whether Westlake Properties was negligent and if so,

whether that negligence was a proximate cause of the erosion of

the slope and the ensuing damage to the septic system.

Accordingly, we hold that the trial court did not err in

granting the instruction in question.



                                  27
     Lastly, we turn to the measure of damages issue raised by

Westlake Properties.   The trial court granted the Association’s

instruction defining the measure of damages as “the reasonable

cost of repairing the property plus the necessary and reasonable

expenses shown by the evidence to have been incurred by the

[Association] as a result of the damage to the property.”

Westlake Properties objected to this instruction, contending

that the correct measure of damages was the cost to repair and

restore “the septic system substantially in accordance with the

plans and specifications under which the septic system was

originally constructed” as required by the language of the

recorded documents, rather than the cost of the septic system

designed and installed by the contractor and engineers hired by

the Association after the original system failed.

     On appeal, Westlake Properties maintains that the

replacement septic system was of superior quality to the system

that was originally designed and that the damages for its

negligence should have been limited to the cost of restoring the

system to its original design.   Westlake Properties’ assertion

is unavailing for the simple reason that the uncontested

evidence was that the cost for restoring the septic system as

originally designed would have exceeded the cost of constructing

the new system.

                                   28
     “The measure of damages in a negligence action is that

amount necessary to compensate the injured party for the damages

proximately caused by the tortious conduct.”   Lochaven Co. v.

Master Pools by Schertle, Inc., 233 Va. 537, 541, 357 S.E.2d

534, 537 (1987).    In Lochaven Co., the damage award on a tort

claim was held inadequate because property damage elements shown

to have been proximately caused by the defendant’s conduct were

not compensated in the award.   Id. at 543, 357 S.E.2d at 538.

Regarding a claim on a breach of contract theory, a cost measure

of damages was not appropriate because the benefit to be derived

from the complete removal and replacement of an improperly

constructed swimming pool was grossly disproportionate to the

cost of doing so.   Id.   The evidence in this case, by contrast,

showed that the removal of the original septic system, its

replacement with the newly designed system, and the necessary

repair of the slope was the most cost-effective and beneficial

method of remedying the damages caused by Westlake Properties’

negligence.   Accordingly, we hold that the trial court’s

instruction on the measure of damages was the correct statement

of the law under the facts of this case.

                             CONCLUSION

     For these reasons, we hold that there is no error in the

trial court’s judgment confirming the jury’s verdict.

                                    29
Accordingly, the judgment in favor of the Association will be

affirmed.

                                                        Affirmed.




                                  30
