) ) ) ) ) ) ) ) ) ) ) ) ) DEMURRER AND MOTION TO DISMISS. Defendant Frederick County Sanitation Authority ("Authority"), by counsel and pursuant

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1 VIRGINIA: IN THE CIRCUIT COURT FOR FREDERICK COUNTY TOWN OF STEPHENS CITY, VIRGINIA V. Plaintiff, FREDERICK COUNTY SANITATION AUTHORITY Defendant. Case No. CL TRIAL BY JURY DEMANDED DEMURRER AND MOTION TO DISMISS Defendant Frederick County Sanitation Authority ("Authority", by counsel and pursuant to Virginia Code , demurs to the Complaint filed by Plaintiff Town of Stephens City ("Town" in the above-captioned action. For the re asons set forth below and in the accompanying brief to be filed pursuant to Va. Sup. Ct. R. 3:8 and 4:15, the Court should dismiss this case with prejudice because Plaintiff has failed to state a claim upon which relief may be granted.. GROUNDSFORDEMURRER I. INTRODUCTION Plaintiffs have filed a five-count Complaint against the Defendant, alleging numerous causes of action including Injunction (Count I,. Declaratory Judgment (II, Breach of Contract (Count. III, Trespass (Count IV, and Quantum Meruit (Count V. Plaintiff has styled and called this a Complaint for "declaratory judgment, injunctive relief, and other related relief' and has sought damages in the amount of $1,000,000 for alleged breaches of agreements, damages and 1

2 punitive damages for willful trespass, in the alternative $1,000,000 in quantum meruit, and attorney's fees and costs. I. DECLARATORY JUDGMENT IS NOT PROPER FOR MATURED CAUSES OF. ACTION (COUNTS Ill, IV, V Defendant Demurs to Count III, IV, and V, collectively as declaratory judgment is not proper for causes of action for Breach of Contract, Trespass, or Quantum Meruit. Those claims, if the facts are taken as true, are proper for resolution as matured conflicts between the parties and not as a true declaration of the parties' respective rights. The purpose of a declaratory judgment action is to afford the parties relief from uncertainty and insecurity pertaining to their legal rights involved in a controversy without requiring one of the parties to invade the rights of the other. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414, 418, 177 S.E.2d 519, 522 (1970. The declaratory judgment statute does not expand a party's rights but rather provides a method of declaring those rights before they mature.!d. at 421, 177 S.E.2d at 524. Essentially a declaratory judgment allows a party to obtain a declaration of her rights before an actual injury has occurred. Williams v. S. Bank of Norfolk, 203 Va. 657, 662, 125 S.E.2d 803, 807 (1962. However, when the rights and various duties have all matured, customary common law claims should be adopted. Liberty Mut. 211 Va. at 419, 177 S.E.2d at 522. This case should move forward, if at all, only with a properly plead Complaint for declaratory judgment if the claims have not matured. If the facts are taken as true, then the claims have matured and actual injury has occurred, and declaratory judgment is not pro'per. II. INJUNCTIVE RELIEF (COUNT I DOES NOT ALLEGE FACTS UPON WHICH RELIEF CAN BE GRANTED Defendant Demurs to the Injunction (Count I individually on the grounds that Plaintiffs claim for injunctive relief fails to plead facts to support an award of injunctive relief, and an 2

3 adequate remedy at law is available. Plaintiffs Complaint does not make clear if it is seeking a permanent or a temporary injunction, but in either case, Plaintiff is required to plead adequate facts to support the appropriate form of injunction. III.. DECLARATORY JUDGMENT (COUNT II IS BASED ON A CONCLUSORY STATEMENT THAT IS INCONSISTENT WITH THE FACTS. Defendant Demurs to the Declaratory Judgment (Count II individually on the grounds that Plaintiffs Complaint incorporates by reference a recorded easement the Town, having received the benefit of its bargain, now seeks to disavow with a claim that "any indefinite or perpetual easements allegedly granted by Stephens City to FCSA are void as a matter of law~" Compl. ~ 26. This bare assertion is not supported by any reference to law or fact and is wholly inconsistent with the documents attached and incorporated by reference. A "mere conclusory state~ent... does not satisfy the pleading requirement of alleging facts upon which relief can be granted" and is thus "insufficient to withstand a demurrer." Dean v. Dearing, 263 Va. 485, 490, 561 S.E.2d 686, 690 (2002.; see also VanDeusen v. Snead, 247 Va. 324, 330, 441 S.E.2d 207, 211 (1994 (holding that plaintiffs "'conclusory averment'" was made without any supporting '"factual allegation"' and thus the sustaining of a demurrer was affirmed (citation omitted. When a plaintiffs cause of action "is asserted in mere conclusory languag~" and supported by "inferences that are not fairly and justly drawn from the facts alleged," it is proper to sustain a defendant's demurrer. Bowman v. Bank of Keysville, 229 Va. 534, 541, 331 S.E.2d 797, 802 (1985. The documents tendered by Plaintiff, attached to the Complaint, and incorporated by reference, establish the fact that the Authority was granted "(an easement to extract no more than 3,000,000 gallons per day (based on a monthly average of groundwater from quarries and related mines" and that the Town received, among other things, the benefit of finished water at a 3

4 reduced rate. Com pl. Exh. A. The plain language of the documents tendered and incorporated by reference by the Plaintiff show the easement was to continue indefinitely until the Water Plant is taken out of service by "affirmative action taken by the Authority" followed by disuse for a period of six ( 6 months.!d. This is the only possibility of reverter and Plaintiff plead no facts that the condition resulting in such reverter occurred. III. BREACH OF CONTRACT (COUNT Ill DOES NOT ALLEGE FACTS UPON WHICH RELIEF CAN BE GRANTED Defendant Demurs to the Breach of Contract claim (Count III on grounds that the documents tendered by Plaintiff, taken together ~ith the allegations in the Complaint, do not show "(1 a legally enforceable obligation of a defendant to a plaintiff; (2 the defendant's violation or breach of that obligation; and (3 injury or damage to the plaintiff caused by the breach of obligation." Filak v. George, 267 Va. 612, 619, 594 S.E.2d 610, 614 (2004. In fact, the Complaint and the incorporated documents make the case that the Authority and the Town entered into an agreement wherein the Authority received the resources and easelll:ents necessary for development of a permanent system to provide safe, affordable, finished water and received the conveyance of certain property for that purpose that was "to continue indefinitely" subject only to a possibility of reverter. The Town, as pled in the Complaint and through the documents incorporated by reference, received a reduced rate of limited duration and other benefits as consideration for the grant of continuing rights in property. When the reduced rate term terminated, it did not trigger a reverter of property conveyances back to the Town and it does not now form the basis of a breach of contract claim. IV. TRESPASS CLAIM (COUNT IV DOES NOT ALLEGE FACTS UPON WIDCH RELIEF CAN BE GRANTED AND HAS NOT SPECIFIED DAMAGES 4

5 Defendant Demurs to the Trespass Count (Count IV individually on the grounds that Plaintiff has not provided any facts that would prove that the Defendant is, in fact, taking water from the quarries "through the Bartonsville well," Compl. ~ 26, or that the Town has been damaged by water travelling through a pipe in an easement, or that any damage has occurred from the Authority putting water into the quarry. Further, Defendant Demurs to Count IV on grounds that Plaintiff has failed to show a fair prima facie case in support of his title. The Town cannot merely allege that it is the owner of the land upon which the trespass is being committed. "Where he claims under a paper title he should generally exhibit his title papers, or copies thereof, or such of them at least as will make out a prima facie case of title. If he relies upon possession... he should state the facts upon which he bases his claim of possession so that in either case the court can see from the title papers filed or the facts stated that he has a prima facie title." Bledsoe v. Robinett, 105 Va. 723, 725, 54 S.E. 861, 861 (1906. In a case like the one before this Honorable Court, that seeks injunctive relief, the Plaintiff "should set out the facts relied on to show that without equitable interference he will suffer irreparable injury, or that his remedy at law is not adequate and complete... Test[ed] by these rules[, a Complaint is] demurrable." Jd. at , 54 S.E. at 861. Finally, Defendant Demurs to Count IV on the grounds that Plaintiff has not specified damages sought for Count IV. The ad damnum lacks any amount for trespass Compl. Relief ( 4, save "awarding damages and punitive damages for the willful trespass to [Town] property." IV. QUANTUM MERUIT CLAIM (COUNT V HAS NOT SPECIFIED DAMAGES TO SUPPORT THE AD DAMNUM SOUGHT Defendants Demur to damages ($1,000,000 sought in the ad damnum for quantum merit (Count V as Plaintiff has plead only the reasonable value of water as exceeding $453, and unjust enrichment of$150,000. 5

6 V. BRIEF IN SUPPORT OF DEMURRER Pursuant to Rules 3:8 and 4: 15 of the Rules of Supreme Court of Virginia, the Authority will file its brief in support of this Demurrer, absent leave of Court, at least fourteen (14 days before the hearing scheduled for this Demurrer. VI. CONCLUSION For the foregoing reasons, the Authority requests that this Court (1 sustain this Demurrer, (2 dismiss the Complaint with prejudice, and (3 grant the Authority any other relief it deems just and proper. TRIAL BY WRY DEMANDED ~C- Dale G. Mullen (VSB No John M. Lain (VSB No McGuiRE WooDs LLP Gateway Plaza 800 East Canal Street Richmond, Virginia ( (D. Mullen Direct ( Facsimile Counsel for the Frederick County Sanitation Authority 6

7 CERTIFICATE OF SERVICE Sl""" I hereby certify that on this2l_ day of September, 2015, a true and correct copy of the foregoing Demurrer and Motion to Dismiss was sent by electronic and U.S. mail, postage prepaid, to the following counsel for Plaintiff: Thomas Moore Lawson, Esquire Lawson and Silek, P.L. C. P.O. Box 2740 Winchester, Virginia Phone: ( Fax: ( tlawson@lsplc.com Tlg~. Dale G. Mullen 7