party relying waiver in Virginia

2023For a waiver “to be implied, it must be established by clear and convincing evidence.” RMBS, 297 Va. at 341 (quoting Pysell v. Keck, 263 Va. 457, 460 (2002)). “[T]he burden rests on the party relying on a waiver . . . to prove the essentials of such waiver . . . .” Stanley’s Cafeteria, Inc. v. Abramson, 226 Va. 68, 74 (1983) (alterations in original) (quoting Utica Mut. v. Nat’l Indem., 210 Va. 769, 773 (1970)).

2013Furthermore, “the burden rests on the party relying on a waiver ... to prove the essentials of such waiver ... by clear, precise and unequivocal evidence.” Utica Mutual v. National Indemnity, 210 Va. 769, 773 , 173 S.E.2d 855, 858 (1970).

2023For a waiver “to be implied, it must be established by clear and convincing evidence.” RMBS, 297 Va. at 341 (quoting Pysell v. Keck, 263 Va. 457, 460 (2002)). “[T]he burden rests on the party relying on a waiver . . . to prove the essentials of such waiver . . . .” Stanley’s Cafeteria, Inc. v. Abramson, 226 Va. 68, 74 (1983) (alterations in original) (quoting Utica Mut. v. Nat’l Indem., 210 Va. 769, 773 (1970)).

2022See Stanley’s Cafeteria, Inc. v. Abramson, 226 Va. 68, 74 (1983) (explaining that the burden “rests on the party relying on a waiver . . . to prove the essentials of such waiver . . . by clear, precise and unequivocal evidence” (quoting Utica Mut. v. Nat.

2016A waiver “must be distinctly *81 made with full knowledge of the rights waived.” Link Assocs., 223 Va. at 485, 291 S.E.2d at 216 . “[T]he burden rests on the party relying on a waiver ... to prove the essentials of such waiver ... by clear, precise and unequivocal evidence.” Utica Mut.

2016A waiver “must be distinctly *81 made with full knowledge of the rights waived.” Link Assocs., 223 Va. at 485, 291 S.E.2d at 216 . “[T]he burden rests on the party relying on a waiver ... to prove the essentials of such waiver ... by clear, precise and unequivocal evidence.” Utica Mut.

2013“At the trial or adjudicatory hearing level, the ‘burden rests on the party relying on a waiver ... to prove the essentials of such waiver ... by clear, precise and unequivocal evidence.’ ” Orthopaedic & Spine Ctr., 61 Va.App. at 492 , 737 S.E.2d at 548 (quoting Stanley’s Cafeteria, Inc. v. Abramson, 226 Va. 68, 74 , 306 S.E.2d 870, 873 (1983)). “ ‘[P]roof of waiver is a question for the trier of fact.’ ” Id. (alteration in original) (quoting Management Enterprises, Inc. v. Thorncroft *564 Co., 243 Va. 469, 474 , 416 S.E.2d 229, 232 (1992)).

2013“At the trial or adjudicatory hearing level, the ‘burden rests on the party relying on a waiver ... to prove the essentials of such waiver ... by clear, precise and unequivocal evidence.’ ” Orthopaedic & Spine Ctr., 61 Va.App. at 492 , 737 S.E.2d at 548 (quoting Stanley’s Cafeteria, Inc. v. Abramson, 226 Va. 68, 74 , 306 S.E.2d 870, 873 (1983)). “ ‘[P]roof of waiver is a question for the trier of fact.’ ” Id. (alteration in original) (quoting Management Enterprises, Inc. v. Thorncroft *564 Co., 243 Va. 469, 474 , 416 S.E.2d 229, 232 (1992)).

1978But the party relying on such waiver must show that the previous conduct or violations had affected "the architectural scheme and general landscaping of the area so as to render the enforcement of the restriction of no substantial value to the property owners." Romig Modest, 102 Ohio App. 225, 229 , 142 N.E.2d 555, 559 (1956); see Deitrick Leadbetter, 175 Va. 170, 176 , 8 S.E.2d 276, 279 (1940).

1978But the party relying on such waiver must show that the previous conduct or violations had affected "the architectural scheme and general landscaping of the area so as to render the enforcement of the restriction of no substantial value to the property owners." Romig Modest, 102 Ohio App. 225, 229 , 142 N.E.2d 555, 559 (1956); see Deitrick Leadbetter, 175 Va. 170, 176 , 8 S.E.2d 276, 279 (1940).

1978But the party relying on such waiver must show that the previous conduct or violations had affected "the architectural scheme and general landscaping of the area so as to render the enforcement of the restriction of no substantial value to the property owners." Romig Modest, 102 Ohio App. 225, 229 , 142 N.E.2d 555, 559 (1956); see Deitrick Leadbetter, 175 Va. 170, 176 , 8 S.E.2d 276, 279 (1940).

1978But the party relying on such waiver must show that the previous conduct or violations had affected "the architectural scheme and general landscaping of the area so as to render the enforcement of the restriction of no substantial value to the property owners." Romig Modest, 102 Ohio App. 225, 229 , 142 N.E.2d 555, 559 (1956); see Deitrick Leadbetter, 175 Va. 170, 176 , 8 S.E.2d 276, 279 (1940).

2023For a waiver “to be implied, it must be established by clear and convincing evidence.” RMBS, 297 Va. at 341 (quoting Pysell v. Keck, 263 Va. 457, 460 (2002)). “[T]he burden rests on the party relying on a waiver . . . to prove the essentials of such waiver . . . .” Stanley’s Cafeteria, Inc. v. Abramson, 226 Va. 68, 74 (1983) (alterations in original) (quoting Utica Mut. v. Nat’l Indem., 210 Va. 769, 773 (1970)).

2005We recognize that this Court has used different legal phrases to describe the burden of proof necessary to establish an implied waiver-"the party relying on a waiver has the burden to prove the essentials of the waiver by clear, precise and unequivocal evidence" and "waiver of a legal right will be implied only upon clear and unmistakable proof of the intention to waive such right." Moreover, we stated in a case involving an express waiver that "[a] waiver must be express, or, if it is to be implied, it must be established by clear and convincing evidence." Pysell v. Keck, 263 Va. 457 , 460, 5

2013We are bound by the factual findings of the commission, [h]owever, such findings of fact are “conclusive and binding” only to the extent that they are “predicated upon evidence introduced or appearing in the proceedings.” In other words, “[i]f ... there is no credible evidence on which the Commission’s findings of fact are based, its findings [of fact] are not binding and the question presented becomes one of law.” Uninsured Employer’s Fund v. Gabriel, 272 Va. 659, 664 , 636 S.E.2d 408, 411 (2006) (second and third alterations in original)(quoting Vanzant v. Southern Bending Co., 143 Va. 244,

2013We are bound by the factual findings of the commission, [h]owever, such findings of fact are “conclusive and binding” only to the extent that they are “predicated upon evidence introduced or appearing in the proceedings.” In other words, “[i]f ... there is no credible evidence on which the Commission’s findings of fact are based, its findings [of fact] are not binding and the question presented becomes one of law.” Uninsured Employer’s Fund v. Gabriel, 272 Va. 659, 664 , 636 S.E.2d 408, 411 (2006) (second and third alterations in original)(quoting Vanzant v. Southern Bending Co., 143 Va. 244,

2013We are bound by the factual findings of the commission, [h]owever, such findings of fact are “conclusive and binding” only to the extent that they are “predicated upon evidence introduced or appearing in the proceedings.” In other words, “[i]f ... there is no credible evidence on which the Commission’s findings of fact are based, its findings [of fact] are not binding and the question presented becomes one of law.” Uninsured Employer’s Fund v. Gabriel, 272 Va. 659, 664 , 636 S.E.2d 408, 411 (2006) (second and third alterations in original)(quoting Vanzant v. Southern Bending Co., 143 Va. 244,

2013We are bound by the factual findings of the commission, [h]owever, such findings of fact are “conclusive and binding” only to the extent that they are “predicated upon evidence introduced or appearing in the proceedings.” In other words, “[i]f ... there is no credible evidence on which the Commission’s findings of fact are based, its findings [of fact] are not binding and the question presented becomes one of law.” Uninsured Employer’s Fund v. Gabriel, 272 Va. 659, 664 , 636 S.E.2d 408, 411 (2006) (second and third alterations in original)(quoting Vanzant v. Southern Bending Co., 143 Va. 244,

2013We are bound by the factual findings of the commission, [h]owever, such findings of fact are “conclusive and binding” only to the extent that they are “predicated upon evidence introduced or appearing in the proceedings.” In other words, “[i]f ... there is no credible evidence on which the Commission’s findings of fact are based, its findings [of fact] are not binding and the question presented becomes one of law.” Uninsured Employer’s Fund v. Gabriel, 272 Va. 659, 664 , 636 S.E.2d 408, 411 (2006) (second and third alterations in original)(quoting Vanzant v. Southern Bending Co., 143 Va. 244,

2013We are bound by the factual findings of the commission, [h]owever, such findings of fact are “conclusive and binding” only to the extent that they are “predicated upon evidence introduced or appearing in the proceedings.” In other words, “[i]f ... there is no credible evidence on which the Commission’s findings of fact are based, its findings [of fact] are not binding and the question presented becomes one of law.” Uninsured Employer’s Fund v. Gabriel, 272 Va. 659, 664 , 636 S.E.2d 408, 411 (2006) (second and third alterations in original)(quoting Vanzant v. Southern Bending Co., 143 Va. 244,

2007The evidence must not leave the matter to mere inference or conjecture but must be certain in every particular.” White v. Commonwealth, 214 Va. 559, 560 , 203 S.E.2d 443, 444 (1974). “ “Whether a waiver is voluntary and competent depends upon the particular circumstances of each case, including the defendant’s background, experience, and conduct, but no particular cautionary instruction or form is required.’” Watkins v. Commonwealth, 26 Va.App. 335, 343 , 494 S.E.2d 859, 863 (1998) (quoting Church v. Commonwealth, 230 Va. 208, 215 , 335 S.E.2d 823, 828 (1985)). “[I]t is clear that certain dila

2007The evidence must not leave the matter to mere inference or conjecture but must be certain in every particular.” White v. Commonwealth, 214 Va. 559, 560 , 203 S.E.2d 443, 444 (1974). “ “Whether a waiver is voluntary and competent depends upon the particular circumstances of each case, including the defendant’s background, experience, and conduct, but no particular cautionary instruction or form is required.’” Watkins v. Commonwealth, 26 Va.App. 335, 343 , 494 S.E.2d 859, 863 (1998) (quoting Church v. Commonwealth, 230 Va. 208, 215 , 335 S.E.2d 823, 828 (1985)). “[I]t is clear that certain dila

2007The evidence must not leave the matter to mere inference or conjecture but must be certain in every particular.” White v. Commonwealth, 214 Va. 559, 560 , 203 S.E.2d 443, 444 (1974). “ “Whether a waiver is voluntary and competent depends upon the particular circumstances of each case, including the defendant’s background, experience, and conduct, but no particular cautionary instruction or form is required.’” Watkins v. Commonwealth, 26 Va.App. 335, 343 , 494 S.E.2d 859, 863 (1998) (quoting Church v. Commonwealth, 230 Va. 208, 215 , 335 S.E.2d 823, 828 (1985)). “[I]t is clear that certain dila

2007The evidence must not leave the matter to mere inference or conjecture but must be certain in every particular.” White v. Commonwealth, 214 Va. 559, 560 , 203 S.E.2d 443, 444 (1974). “ “Whether a waiver is voluntary and competent depends upon the particular circumstances of each case, including the defendant’s background, experience, and conduct, but no particular cautionary instruction or form is required.’” Watkins v. Commonwealth, 26 Va.App. 335, 343 , 494 S.E.2d 859, 863 (1998) (quoting Church v. Commonwealth, 230 Va. 208, 215 , 335 S.E.2d 823, 828 (1985)). “[I]t is clear that certain dila

2007The evidence must not leave the matter to mere inference or conjecture but must be certain in every particular.” White v. Commonwealth, 214 Va. 559, 560 , 203 S.E.2d 443, 444 (1974). “ “Whether a waiver is voluntary and competent depends upon the particular circumstances of each case, including the defendant’s background, experience, and conduct, but no particular cautionary instruction or form is required.’” Watkins v. Commonwealth, 26 Va.App. 335, 343 , 494 S.E.2d 859, 863 (1998) (quoting Church v. Commonwealth, 230 Va. 208, 215 , 335 S.E.2d 823, 828 (1985)). “[I]t is clear that certain dila

2007The evidence must not leave the matter to mere inference or conjecture but must be certain in every particular.” White v. Commonwealth, 214 Va. 559, 560 , 203 S.E.2d 443, 444 (1974). “ “Whether a waiver is voluntary and competent depends upon the particular circumstances of each case, including the defendant’s background, experience, and conduct, but no particular cautionary instruction or form is required.’” Watkins v. Commonwealth, 26 Va.App. 335, 343 , 494 S.E.2d 859, 863 (1998) (quoting Church v. Commonwealth, 230 Va. 208, 215 , 335 S.E.2d 823, 828 (1985)). “[I]t is clear that certain dila

1988Bank, 212 Va. 31, 33 , 181 S.E.2d 618, 620 (1971).

1988Bank, 212 Va. 31, 33 , 181 S.E.2d 618, 620 (1971).

1983The focus of the waiver inquiry is upon intent to relinquish. “[T]he burden rests on the party relying on a waiver ... to prove the essentials of such waiver ... by clear, precise and unequivocal evidence.” Utica Mutual v. National Indemnity, 210 Va. 769, 773 , 173 S.E.2d 855, 858 (1970); accord Schulze v. Kwik-Chek Realty, 212 Va. 111, 112, 181 S.E.2d 629, 630 (1971).

1983The focus of the waiver inquiry is upon intent to relinquish. “[T]he burden rests on the party relying on a waiver ... to prove the essentials of such waiver ... by clear, precise and unequivocal evidence.” Utica Mutual v. National Indemnity, 210 Va. 769, 773 , 173 S.E.2d 855, 858 (1970); accord Schulze v. Kwik-Chek Realty, 212 Va. 111, 112, 181 S.E.2d 629, 630 (1971).