July 2020 Third Example Ten-point Answers to Virginia Essay Questions
July 2020 - QUESTION 5 – VIRGINIA BAR EXAMINATION
Pop Owens was the owner of The Diner, a small restaurant in Norfolk, Virginia. The Diner had been operating at the corner of Granby Street and Brambleton Avenue for over twenty years. Business was steady and profitable until the City of Norfolk began construction on Granby Street. The City closed Granby Street and dug a huge hole in front of The Diner in order to repair the sewer and water lines that serviced the downtown area of the City, including The Diner and several other nearby restaurants. The closure of the street prevented access to The Diner’s parking lot and made pedestrian access to the front door of The Diner nearly impossible. The street in front of The Diner was closed for four months during this construction.
Shortly after Granby Street was reopened, the City closed a portion of Brambleton Avenue for a period of ten months during the construction on Brambleton Avenue of a large new hotel in the national chain known as Slumber Inn. In addition to some underground utility work for the Slumber Inn, the general contractor for the hotel was permitted to park a large construction crane on Brambleton Avenue. The crane created major traffic congestion at the intersection near The Diner and caused much of the eastbound traffic turning from Brambleton Avenue onto Granby Street to avoid the intersection entirely. As a result, most vehicular traffic travelled a block past Granby to a parallel roadway, thus avoiding The Diner.
Pop and several others who owned businesses on Granby Street were furious with the City and complained to the City Council; however, the City Council refused to provide them with any relief, financial or otherwise. Pop hired an attorney who filed an action in the Norfolk Circuit Court claiming inverse condemnation and violation of Virginia Code Section 1-219.1 A, which provides in part:
|The right to private property being a fundamental right, the General Assembly shall not pass any law whereby private property shall be taken or damaged for public uses without just compensation.|
The Complaint alleged that the City closed Granby Street for the purpose of the construction or repair of public utilities and that it prevented access to The Diner during the closure. It also alleged that the City closed Brambleton Avenue to accommodate the construction of the Slumber Inn, and that both actions entitled Pop to just compensation.
The City filed a Demurrer in proper form. The Demurrer was argued before the Circuit Court and the judge sustained the Demurrer and dismissed the entire action. Pop wants to appeal this ruling.
|(a)||Was the Circuit Court correct in sustaining the Demurrer and dismissing the Complaint? Explain fully.|
|(b)||Is the ruling of the Circuit Court in sustaining the Demurrer appealable, and if so, to what court? Explain fully.|
|(c)||Assuming the Circuit Court’s ruling is appealable, what standard should the appellate court apply in its decision? Explain fully.|
July 2020 - QUESTION 5 – EXAMPLE ANSWER #1
5a. The Circuit Court likely erred in sustaining the Demurrer and dismissing the Complaint. A Demurrer tests the legal sufficiency of a Complaint. In effect, a Demurrer admits as true all facts alleged in the Complaint and argues that even if such facts are accepted as true, the plaintiff fails to state a cause of action. An action for inverse condmenation essentially alleges that the locality effected a taking of a landowner's property, but never instituted eminent domain proceedings for the taking. Localities in Virginia do not enjoy sovereign immunity for actions sounding in inverse condmenation because such actions sound in implied contract, not tort. An action for inverse condmenation allows a landowner to recover for the lost value of his property that results from some affirmative conduct by the locality.
The threshold question here is whether the City's actions in closing down Granby Street, and subsequently Brambleton Avenue, constitued a taking within the meaning of the Fifth Amendment of the U.S. Constitution and Virginia Code Section 1-219.1. Likely, the City effected a taking of Pop's property by closing off access to his property to such an extent that his property was no longer profitable. In short, the City's intentional act destroyed all economically viable use of Pop's property.
The second issue presented is whether the City lawfully took Pop's property. This issue boils down to the meaning of "public purpose." A locality can only take property for a public purpose; it may not take property for the purpose of transferring value from one private owner to another. Here, the City had a valid public purpose in closing Granby Street in order to repair sewer and water lines. However, the City likely violated Virginia's condemnation laws by shutting down Brambleton Avenue. Under Virginia law (and unlike federal law), the government cannot take property for the purpose of economic development. Virginia takings law narrowly confines the eminent domain power of localities, essentially only allowing them to take property if the use is truly public (i.e., the public or the government retains ownership of the property, and/or has access and use of it). In this case, the City shut down Brambleton Avenue to allow the construction of a new hotel. Such economic development based takings are prohibited under Virginia law. Accordingly, the City's action with respect to shutting down Brambleton Avenue was unlawful because it was not done pursuant to a public purpose.
Accepting the allegations of the Complaint as true, the Complaint alleged that the City closed Granby street for the purpose of repairing public utilities, and that by such act the City blocked off access to Pop's business. Further, the Complaint alleged that the City closed down Brambleton Avenue to accomodate the construction of a private hotel. The face of the Complaint clearly informs the defendant City of the true nature of the case, and, as discussed above, states valid grounds for a finding that the City acted unlawfully and owes Pop just compensation. Accordingly, the Circuit Court erred in sustaining the Demurrer.
5b. The ruling of the Circuit Court is appealable. Although a Demurrer is not appealable if it is overruled (because it will not constitute a final order in that case), the Demurrer is appealable when sustained because it ends the case. Thus, the Demurrer here was a final order and Pop may appeal it.
Appeal will lie in the Supreme Court of Virginia. Pop must file his notice of appeal with the Circuit Court within 30 days after entry of judgment.
5c. The appellate court will apply a de novo standard of review. When a Demurrer is sustained, it is a ruling as a matter of law. The Supreme Court will therefore conduct a de novo review of the Complaint, and make its own determination as to whether the Complaint stated a claim for relief.
July 2020 - QUESTION 5 – EXAMPLE ANSWER #2
a)Assuming that Pop or his attorney gave proper notice to the city, the Circuit Court was correct in sustaning the Demurrer and dismissing the claim regarding the closure of Brambelton Ave. but was incorrect in sustaining the demurrer and dismissing the claim against the closure of Granby Street. A Demurrer is filed in response to a complaint and alleges that the complaint fails to state a claim for which relief may be granted. Per the Virginia Code, the grounds of a Demurrer must be stated with specificity.
Here, for the Granby Street Closure, Pop's Complaint properly alleged how the closure affected access to his diner, and therefore properly stated how his property right was damaged. Therefore, the court was incorrect in sustaining the city's demurrer and dismissing this claim.
However, for the Brableton Ave. closure, Pop's complaint only stated that the city closed to accomodate the construction of the Slumber Inn. Therefore, because Pop did not allege how the Brambelton Ave. closure affected access to his diner, or otherwise damaged his property right, he failed to state a claim for which relief may be granted and the court was correct to sustain the city's demurrer and dismiss this claim.
b) Yes, the ruling of the Circuit Court sustaining the demurrer and dismissing the action is appealable and should be appealed to the Virginia Supreme Court. Generally, a matter is not appealable until a final order is rendered in the case. A final order is generally one that either dismisses the case or states the final disposition or outcome of the case. Here, because the court sustained the city's demurrer and dismissed Pop's entire action, Pop may appeal the circuit court's decision to the Virginia Supreme Court.
c)Assuming thee Virginia Supreme Court grants Pop an appeal, it should apply a de novo standard to whether the demurrer was properly sustained and an abuse of discretion standard on whether the court was correct in dismissing the entire claim. For issues of law, the Virginia appellate courts generally apply a de novo standard, which means they look at the matter without deference to the trial court's ruling. However, when a trial court has discretion in its ruling, the appellate courts will generally only reverse a circuit court's decision when it was an abuse of discretion.
Here, since a demurrers tests the legal sufficiency of a complaint, the Virginia Supreme Court will use a de novo standard. However, when a circuit court sustains a demurrer, it has the discretion to allow the plaintiff to amend its pleading. Therefore, as to whether the circuit court was correct in dismissing the entire action, the Virginia Supreme Court will use an abuse of discretion standard.