For waiver at trial, defense counsel has cited Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 168 (1993) and Hilton v. Fayen, 196 Va. 860, 867 (1955). But Hilton simply holds that “a party cannot complain of an instruction given at his instance,” and that parties cannot question a verdict where they “asked for and have induced the court to give an instruction upon a given theory of the law,” id. at 866-867; and Wright holds that a party clearly maintaining a litigation position as a matter of substance does not waive it by not objecting to adverse jury instruction as a matter of “form”. 245 Va. at 168.
Moreover, Va. Code Ann. 8.01-384 was amended materially in 1970, 1977 and 1992; after Hilton and before Wright. 8.01-384(A) provides in pertinent part “it shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action the court therefore;” and that: “No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again to preserve his right to appeal, challenge, or more for reconsideration of, a ruling, order, or action of the court.”
The progeny of Wright and 8.01-384(A) are legion. Where appellate courts have found no waiver, they have affirmed and rendered final judgment, e.g., WJLA-TV v. Levin, 264 Va. 140 (2002); Rozario v. Commonwealth, 50 Va. App. 142 (2007); Croxton v. Commonwealth, 2005 Va. App. LEXIS 166 (2005); and Princiotto v. Gorrell, 42 Va. App. 253 (2004); reversed and rendered final judgment, e.g., Nationwide Mutual Ins. Co. v. Housing Opportunities Made Equal, Inc., 259 Va. 8 (2000); Gen. Ins. of Roanoke, Inc. v. Page, 250 Va. 409 (1995); The Pinkerton Tobacco Co. v. Melton, 246 Va. 356 (1993); and Kingrey v. Hill, 245 Va. 76 (1993); or reversed and remanded. E.g., McMinn v. Rounds, 267 Va. 277 (2004); King v. Commonwealth, 264 Va. 576 (2002); Chawla v. Burgerbusters, Inc., 255 Va. 616 (1998); Stuarts Draft Shopping Ctr., L.P. v. S-D Associates, 251 Va. 483 (1996); Luckett v. Jennings, 246 Va. 303 (1993); McManus v. Neuschulz, 2002 Va. App. LEXIS 695 (2002); Murray v. Commonwealth, 2001 Va. App. LEXIS 182 (2001); Brown v. Commonwealth, 23 Va. App. (1996), aff’d on reh’g en banc, 25 Va. App. 171 (1997); and Griffin v. Sprouse, 18 Va. App. 859, rev’d on other grounds 250 Va. 46 (1995).