COMMONWEALTH OF VIRGINIA ‘Timothy K. Sanger ‘Chuge V. Worrell P.O. Box 799 SI5E. High Strect Louisa, Veginia 23099, Charlotieslle, Virgina 22902 (540) 9675300 (434) 970-3760 (640) 967-5683 an) (434) 970:3038 (ox) Cheryl V. Higgins | ‘Sixteenth Judicial Court David B. Franzén 501 E, Jello St, 3ed Floor PO. Box 230 Chertotesile, Virginia 22902 Orange, Virginia 22960 (434) 972-4015, ‘Albemarle Culpeper Fluanna Goochland (640) 672-2433 (434) 972-4071 (io) Greene Louisa Madison Orange Charlottesville (640) 672-2189 (fx) Dale B. Durer avid M. Barredo 135 West Cameron Stet PO. Bor 550 Culpeper, Vignia 22701 October 10, 2023 Palm, Virginia 22963 (640) 727.3440 (434) s913974 (640) 727-7535 and (434) 591-1971 fax) Genevieve C. Bradley, Esq. Roth Jackson Gibbons Condlin, PLC 8200 Greensboro Drive, Suite 820 McLean, VA 22102 VIA EMAIL gbradley@rothjackson.com Sharon E. Pandak, Esq. Pandak & Taves, PLLC 4004 Genesee Place, Suite 201 Woodbridge, VA 22192 VIA EMAIL spandak@gptslaw.com Re: — Criglersville Elementary School, LLC v. The Board of Supervisors of Madison County, et al.; Case No. CL23006253-00 Dear Ms. Bradley and Ms. Pandak: This case is before the Court on the Demurrer and Plea in Bar filed on behalf of Madison County and the Board of Supervisors of Madison County (collectively hereinafter “Defendants” or the “Board”) to the First Amended Complaint’ filed on behalf of Criglersville Elementary School, LLC (hereinafter “Plaintif?”). Thave reviewed in detail the Complaint, the Demurrer and Plea in Bar, Defendants” Memorandum in Support thereof, Plaintiff's Memorandum in Opposition thereto, Defendants? Memorandum in Reply, the transcript of the hearing on oral argument held July 12, 2023, Defendants’ second subsequent Memorandum in Reply, Plaintif?’s Supplemental Brief in Opposition, Defendant’s Rebuttal Memorandum, and Plaintiff's Sur-Reply Brief. Thus, this matter "The original Complaint was filed on February 7, 2023, but by Consent Order entered herein on April 12, 2023, Plaintiff was granted leave to file the First Amended Complaint. Defendant originally took the position that since the original Complaint alleged thet the closing date for the sale ofthe real property at issue was included in the contract in error, there could have been no meeting of the minds and therefore, no contract ever existed. (See Memorandum in Support of Demurrer and Plea in Bar, Il, pages 3-4.) However, this approbate/reprobate argument \was later withdrawn. (See Defendants’ Memorandum in Reply to Opposition to Demurrer and Plea in Bar, fn. 1.) Consequently, and for the sake of simplicity, 1 will refer to the First Amended Complaint hereinafter as the “Complaint.”hhas been extensively briefed and argued, and I have considered the authorities cited in the various submissions as well as conducted additional legal research on the issues presented. 1 am therefore prepared to rule, ‘The Complaint alleges, in pertinent part, that Defendants breached a contract dated June 14, 2022 (the “Contract”) to sell approximately 5.83 acres of land, more or less, with improvements, to Plaintiff.’ Although the Contract states that closing “...shall take place no Tater than the 14[ ] day of September, 2022...” (Contract, paragraph 3, attached as Exhibit A to the Complaint), Plaintiff alleges that there was no “time is of the essence” clause or similar phrasing “that would make closing by September 14, 2022 a material term of the Contract.”> Furthermore, Plaintiff alleges certain facts that, it says, demonstrate that the parties did not consider the September 14 date material to the contract. For example, it alleges that on July I1, prior to Contract execution, “County officials, communicated that they anticipated closing would occur after September 14, 2022.”* Moreover, Plaintiff asserts that there were “...multiple exchanges [after September 14] discussing potential ‘amendments to the Contract,”® (emphasis added), and that “...on October 12, 2022 the County Attomey informed [Plaintif?’s] counsel that the County was not considering backing out of the Contract... Then, again, on November 8[ ] the County’s Board of Supervisors held a meeting at which the County Attorney publicly stated that the Contract was still valid.”* The Complaint alleges that Plaintiff waived all contractual contingencies, particularly the rezoning contingency’ and that thus *...all contingencies of the Contract had been fulfilled.”* Plaintiff asserts that therefore, as of November 10, 2022° the Defendants were obligated to close on the property." Nevertheless, Plaintiff alleges that by letter dated November 16, Defendants sought to terminate the Contract “on the grounds that the Closing did not occur by September 14, 2022."" In its Demurrer and Plea and Bar’? the Defendants state that the Complaint should be dismissed because the pleading does not state a cause of action, largely on the basis “...{t]hat the Contract date was September 14, 2022, which the Plaintiff did not meet.”!? Furthermore, they assert that an amendment to change the closing Date must be in writing, which was not done,'¢ and that this Court lacks the authority to change the Closing Date because to do so would be a legisk which this Court cannot force.’* 2 Complaint, $9,22-25, 2 Complaint, ¢8. | “Complaint, $9. Complaint, 11. | Complaint, 20 * Complaint, 15. * Complaint, 416, erroneously referencing paragraph 3 of the Contract. The Contract is attached to the Complaint as Exhibit A. The Court notes that the contingencies are actually enumerated in paragraphs 7 a-f, page 3. ° When the Plaintiffallegedly waived the rezoning contingency in writing Complaint, p.3. | "Complaint, 418, Exhibit C. " Defendants simply adopt the Demurrer in support oftheir Plea in Bar (Demurrer, etc. 11), and counsel during ‘oral argument acknowledged that no separate evidence would be presented dispositive of any issue, Transcript of July 12, 2023 hearing (“Tr.") page 35, lines 12-23. Thus, I will specifically address only the Demurrer herein, and my ring resolves both. ™ Demurrer, $2, Demurrer, § 1 "8 See generally (as summarized herein), Demurrer, Section B, #9 7-10, and also Demurrer, 9 3-6. 2On demurrer, the sole question to be decided is “whether the facts thus pleaded, implied and fairly inferred are legally sufficient to state a cause of action against the defendant.” Thompson v. Skate America, Inc:,261 Va. 121, 126, (2001). At this stage of the proceeding, a demurrer “admits the truth of all material facts properly pleaded...” CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22 (1993) (quoting Rosillo v. Winters, 235 Va. 268, 270 (1988)). See also Assurance Data, Inc. v, Malyevac, 286 Va. 137, 143, 747 S.E.2d 804 (2013). “In order to survive demurrer...a complaint ‘must allege [ ] sufficient facts to constitute a foundation in law for the judgment sought, and not merely conclusions of law. To survive a challenge by demurrer, a pleading must be made with sufficient definiteness to enable the court to find the existence of a legal basis for its judgment. In other words, despite the liberality of presentation which the court will indulge, the motion must state a cause of action.” Dunn v. Connolly, 281 Va, 553, 708 S.E.2d 867 (201 1). In discharging its function, the Court observes that to the extent the pleading contains conclusions of law, the Court is not bound to accept them, but must make its own determination as to whether the facts fairly pleaded support the conclusions and thus state a claim justifying the relief sought. See also Doe v. Baker, 299 Va. 628, 641 (2021). Defendants erystalize their arguments on demurrer as follows: “Plaintiff did not comply with the Contract closing deadline of September 14, 2022, and...fails to allege that the Board ever approved any amendments to allow for a closing date later than September 14, 2022.”"° The June 14, 2022 Contract specifies that closing “...will take place within thirty (30) days of all contingencies...having been fulfilled but shall take place no later than the 14 [sic] day of September, 2022.”"” (Emphasis added.) Paragraph 3 of the Contract clearly does not contain an express “time is of the essence” provision, but Defendants claim that the word “shall” creates a so- called “hard” closing date'®, was a mandatory deadline, was not amended, and was the equivalent of “time is of the essence” material term of the agreement." They cite Hamilton v. Newbold, 154 Va. 345, 354 (1930) for the proposition that time is of the essence in real estate contracts “if the contact clearly indicates that it was so intended by the parties.” Defendants overlook however, with regard to the parol agreement in that case, that the court also observed that where time is not expressly made of the essence,”{e]quity does not treat time as of the essence of a contract to convey land at a future day, unless the language of the contract clearly indicates that it was so intended by the parties, and even if it had been intended in this case the appellant waived it because he treated the contract in force. 1d, at 355. (Emphasis added). ‘The law in this Commonwealth is clear: The mere naming of a date in a contract on which settlement shall be made does not of itself make time of the essence. See e.g. Sims v. Nidiffer, 203, Va. 749, 752 (1962). “Equity has established the rule that in contracts for the sale of real estate, time is not of the essence unless expressly stipulated in the agreement, ‘or it necessarily follows from the conduct of the parties or the nature and circumstances of the agreement.’ [Quoting Sims at 749,] The intention of the parties, as demonstrated by their words and acts, is the controlling factor. And, [sic] the intention to make time essential will not be inferred from the mere appointment of a date for delivery of the deed, or the payment of the purchase price.” Wood v. Wood, 216 Va. 922, 924 (1976), citing Morris v. Harrop, 154 Va, 127, 135 (1930). "© Memorandum in Support of Demurrer and Plea in Bar, Introduction, p. 1. "Complaint, Exhibit A, $3. " See Memorandum in Support of Demurrer and Plea in Bar, 4 2 Te. p. 10 ines 1-4Moreover, the Complaint alleges numerous instances in which the parties conducted themselves inconsistent with the notion that September 14 was a “hard” closing date material to the enforceability of the contract.” Indeed, Defendant seems to acknowledge that “...negotiations took place” to amend the Contract after September 14.2! It is axiomatic that a Contract which has expired cannot be “amended” because, in law, it does not exist. A terminated Contract may be revived. This is not a mere matter of semantics, particularly where, as here, the parties’ conduct indicates the continued existence of the agreement. ‘The Defendants argue that whatever “conduct” may have been taken by others purportedly on the Board’s behalf, such action does not bind the Board absent a specific resolution authori it2? However, as Plaintiff has accurately pointed out, the authority supporting Defendants’ position all had to do with unauthorized entering into agreements at the outset.”® The weight of authority supports Plaintiff's contention that actions of others as alleged, as well as that of the Board, demonstrates the intentions of the parties. For example, in Royer v. Board of Cnty. Supervisors, 176 Va, 268, 277-278 (1940), the county executive's conduct was relevant and probative in determining the County’s intentions. Tconclude that, at this stage of the proceeding, Plaintiff has sufficiently alleged a cause of action against Defendants. Time was not of the essence in the Contract, either expressly or by implication, and the conduct of the parties, as alleged, does not indicate a different intention. Therefore, for the reasons set forth herein, the Demurrer, and consequently, the Plea in Bar, are overruled. Lask that Ms. Bradley draft an Order consistent with and attaching this Opinion Letter and circulate it to Ms. Pandak for her endorsement as she deems appropriate. Please tender the fully endorsed proposed Order to me by October 24, 2023, Very truly yours, _ (1 David B. Franz, Judge File ® See e.g. fn. 4-6. Also, the Complaint alleges that the Defendants continued to consider Plaintiff's rezoning request well ater September 14, and took specific action on November 8 to deny the application. See Complaint, 13. 1 note here that the Court may only consider the allegations in the Complaint and as referenced by attached and incorporated documents. Rule [:4 (i of the Rules of the Supreme Court of Virginia. Accordingly, the Court will not consider the minutes of the Board on demurrer. 2! Memorandum in Support of Demurrer and Plea in Bar, p. 5. ® Memorandum in Reply to Opposition to Demurrer and Plea in Bar, p.6, citing King George County Service Authority v Presidential Service Co., Tie Il, Inc, 267 Va. 448 (2004) and Board of Zoning Appeals of Bland County v. Caselin Systems, Inc.,256 Va. 206 (1998). 2 Plaintiff's Supplemental Brief in Opposition to Demurrer and Plea in Bar, pp. 4-5, fh. 1. 4