INDEX TO APPENDIX. MOTION FOR JUDGMENT. DEHURRER... l10tion FOR SPECIFIC GROUNDS. GROUNDS OF DEMURRER. MOTION TO RECONSIDER ORDER.

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2 INDEX TO APPENDIX DESCRIPTION PAGE NUMBER MOTION FOR JUDGMENT. DEHURRER l10tion FOR SPECIFIC GROUNDS. GROUNDS OF DEMURRER. MOTION TO RECONSIDER ORDER. NOTICE OF APPEAL A B c D E F G -i-

3 IN THE CIRCUIT COURT FOR THE COUNTY OF FAIRFAX PAUL S. BURNS ALICE J. BURNS Plaintiffs v. AT LAW NO. THE BOARD OF SUPERVISORS OF FAIRFAX COUNTY SERVE: Frederick Lee Ruck, Esquire County Attorney Massey Building Fairfax, Virginia Defendants MOTION FOR JUDGMENT COMES NOW the Plaintiffs, by counsel, and move this Court for judgment against the Defendant for the reasons and in the amount as follows: 1. Plaintiffs are the owners of a tract of land consisting of two acres, more or less, located at 6500 Beulah Street, Alexandria, Virginia, located in the County of Fairfax. 2. The land adjacent to the Plaintiffs has been and is being subdivided and developed by Cambridge Covington, Ltd. 3. As part of the subdivision and development, Cambridge designed and built a storm sewer system to drain surface water. 4. This storm sewer system was approved by the Defendant on certain site plans filed by Cambridge. 5. After the storm sewer system was built, it was dedicated by Cambridge to the Defendant and was accepted by the Defendant in accordance with Cambridge's dedication. APPENDIX "A"

4 6. Defendant uses and maintains this storm sewer system. 7. The storm sewer system has materially altered the grade, shape, and contour of the land adjacent to the Plaintiffs so that it has become higher in altitude than the former existing natural contour and grade of the land. 8. The storm sewer system as presently used and maintained causes the discharging of great quantities of water onto, over, and through the land of the Plaintiffs. 9. The value of the Plaintiffs' land has been substantially diminished by the discharge of water as aforesaid. 10. The use and maintenance of the storm sewer system has damaged the property of the Plaintiffs in violation of Article I, Section 11 of the Constitution of Virginia. 11. There is implied in law and in fact a contrace between Plaintiffs and Defendant which has been breached by the Defendant. l~erefore, Plaintiffs pray that this Court award them judgment against the Defendant in the sum of Fifty Thousand Dollars ($50,000 together with their costs expended herein. PAUL S. BURNS ALICE J. BURNS By ~------~----~ Counsel Alfred D. Swersky 123 North Pitt Street Alexandria, Virginia Counsel for Plaintiffs

5 IN THE CIRCUIT COURT OF FAIRFAX COUNTY PAUL S. BURNS and ALICE J. BURNS, v. Plaintiffs, THE BOARD OF SUPERVISORS OF FAIRFAX COUNTY,. Defendants AT LAW NO DEMURRER COME NOW the Defendants and demur to the Plaintiffs' Motion for Judgment on the ground that it is insufficient at law. THE BOARD OF SUPERVISORS OF FAIRFAX -county FREDERICK LEE RUCK COUNTY ATTORNEY By ~----~ Counsel By ~--~~~ J ames P. Downey Assistan t County Attorney 4100 Chain Bridge Road Fairfax, Virginia APPENDIX "B"

6 IN THE CIRCUIT COURT FOR THE COUNTY OF FAIRFAX PAUL S. BURNS and ALICE J. BURNS, v. Plaintiffs THE BOARD OF SUPERVISORS OF FAIRFAX COUNTY, Defendant AT LAW NO MOTION FOR SPECIFIC GROUNDS COME NOW the Plaintiffs, and pursuant to Title 8, Section 99 of the Code of Virginia, move this Court to require the Defendants herein to state specifically the grounds of the Demurrer to be relied on herein. PAUL S. BURNS ALICE J. BURNS By ----c=-oun s el FREEDMAN, FREEDMAN & SWERSKY By -A~l~fr_e_d~D~.~S~w_e_r_s~k-y 417 North Washington Street P. 0. Box 25 Alexandria, Virginia APPENDIX "C"

7 IN THE CIRCUIT COURT OF FAIRFAX COUNTY PAUL S. BURNS and ALICE J. BURNS, v. Plaintiffs, THE BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA, Defendant. AT LAW NO GROUNDS OF DEMURRER COMES NOW the Defendant, by counsel, and states herewith specifically the grounds of its demurrer to be relied on herein: 1. Defendant is immune from suits grounded in tort. 2. Plaintiffs fail to allege facts sufficient to create either an implied-in-fact or implied-at-law contract between the parties. THE BOlL~ OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA FREDERIC LEE RUCK COUNTY ATTORNEY By ~----~ Counsel By ~----=-~ James P. Downer Assistant County Attorney 4100 Chain Bridge Road Fairfax, Vireinia APPENDIX "D 11

8 IN THE CIRCUIT COURT FOR THE COUNTY OF FAIRFAX PAUL S. BURNS and ALICE J. BURNS, Plaintiffs, v. THE BOARD OF SUPERVISORS OF FAIRFAX COUNTY, Defendants. Law No MOTION COMES NOW the Plaintiffs, by counsel, and move this Court to reconsider the sustaining of a Demurrer herein, or in the alternative, to enter a final judgment herein. As grounds for this Motion, the Plaintiffs state as follows: 1. That a Demurrer was sustained in this matter by Order of this Court dated September 9, That on March 2, 1976, the Supreme Court of Virginia awarded a Writ of Error to the judgment rendered by the Circuit Court. 3. On May 11, 1976, the Virginia Supreme Court dismissed the Writ as improvidently awarded for the reason that the Order appealed from was not a final order. APPENDIX "E"

9 WHEREFORE, the Plaintiffs move this Court to reconsider the sustaining of the Demurrer, or in the alternative to enter final judgment in this case. PAUL S. BURNS and ALICE J. BU&.l\IS By Alfred D. Swersky Counsel for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Motion was mailed, postage prepaid, to James P. Downey, Esq., Assistant County Attorney, 4100 Chain Bridge Road, Fairfax, Virginia 22030, this day of Alfred D. Swersky APPENDIX "E"

10 IN THE CIRCUIT COURT FOR THE COUNTY OF FAIRFAX PAUL S. BURNS and ALICE J. BURNS, Plaintiffs, v. THE BOARD OF SUPERVISORS OF FAIRFAX COUNTY, Defendants. At Law No R DE R THIS CAUSE came to be heard upon the motion of the Plaintiffs, by counsel, for a reconsideration of granting a Demurrer herein, or in the alternative, for entry of a final Order. It appearing to the Court that the Demurrer ought to be sustained; further, it appearing to the Court that the Plaintiffs ought to be granted leave of Court to amend their pleadings; further, it appearing to the Court that the Plaintiffs will not amend their pleadings, but elect to stand on the Motion For Judgment as filed, it is ORDERED that this matter be and hereby is, dismissed and stricken from the docket. AND THIS ORDER IS FINAL. ENTERED this day of JUDGE APPENDIX "F"

11 I ask for this: James P. Downey Assistant County Attorney Counsel for Defendants Seen and objected to: Alfred D. Swersky Couns.el for Plaintiffs APPENDIX ''F''

12 IN THE CIRCUIT COURT FOR THE COUNTY OF FAIRFAX PAUL S. BURNS and ALICE J. BURNS, v. Plaintiffs, THE BOARD OF SUPERVISORS OF FAIRFAX COUNTY, Defendants. At Law No NOTICE OF APPEAL AND ASSIGNMENT OF ERROR COl~S NOW the Plaintiffs herein, by counsel, and pursuant to Rule 5:6 of the Rules of Court, file this, their Notice of Appeal from the final judgment of this Court entered on July 23, The errors assigned herein are as follows: 1. It was error for the trial court to sustain the Demurrer of the Defendants herein. Alfred D. Swersky Counsel for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Notice of Appeal and Assignment of Error was mailed, postage prepaid, to James P. Downey, Assistant County Attorney, 4100 Chain Bridge Road, Fairfax, Virginia 22030, this 3rd day of August APPENDIX "G" Alfred D. Swersky