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.
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


                                  2
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.

                                 3
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.

     Floyd 2 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.

                                     4
     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



                                 5
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

                                  6
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.

                                7
