Fentress Families Trust v. Virginia Electric & Power Co.

93 Va. Cir. 98
CourtChesapeake County Circuit Court
DecidedMarch 25, 2016
DocketCase No. (Civil) CL12-475; Case No. (Civil) CL12-476
StatusPublished

This text of 93 Va. Cir. 98 (Fentress Families Trust v. Virginia Electric & Power Co.) is published on Counsel Stack Legal Research, covering Chesapeake County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fentress Families Trust v. Virginia Electric & Power Co., 93 Va. Cir. 98 (Va. Super. Ct. 2016).

Opinion

By

Judge Randall D. Smith

This matter is before the Court on the following motions; (1) Virginia Electric and Power Company’s (“Dominion”) “motion for summary judgment on statute of limitations”; (2) Headwaters Resources, Inc. (“Headwaters”), and VFL Technology Corporation’s (“VFL”) special [99]*99plea in bar on the statute of limitations; (3) MJM Golf, L.L.C.’s (“MJM”) motion for summary judgment based on statute of limitations; and (4) Headwaters and VFL’s “motion for partial summary judgment on plaintiff Jasmine Andrews’s claims.” With the exception of Headwaters and VFL’s motion for partial summary judgment on plaintiff Jasmine Andrews’s claims, it appears that identical motions were filed in both cases (CL 12-475 and CL12-476), and the motions were argued together at the hearing on February 24, 2016. Accordingly, the Court will consider and rule on the motions concurrently in this letter. Counsel have thoroughly briefed all the issues and argued their respective positions at the February 24th hearing.

As alleged in both complaints, these actions arise out of the use of coal ash and binding agents in the construction of a golf course in the City of Chesapeake. The plaintiffs allege that from 2002 through . 2007, the defendants dumped 1.5 million tons of coal ash and binding agent into an unlined pit at the golf course construction site, and that the majority of the ash was piled in the “northern discrete areas of the site in 2002 and 2003.” (Compls. ¶¶ 2 & 98.) The plaintiffs allege, inter alia:

In 2002, as many as 100 dump trucks a day, often without proper covering of ash and binding agent, were leaving the Dominion landfill loaded with toxic and radioactive coal ash and binding agent and bound for what would become the purported “golf course” and the coal ash left the Site in massive amounts, settling onto the Plaintiffs’ homes and property, thereby invading and creating a nuisance.

(Compls. ¶ 129; see also Compls. ¶¶ 152-59.) The plaintiffs further allege:

[T]he physical invasion of the contaminants from the Defendants’ toxic and radioactive coal ash and binding agent [that] invaded the Plaintiffs’ homes and property via airborne contamination has detrimentally changed the physical condition of Plaintiffs’ land itself, as well as posing [sic] a substantial and significant risk to Plaintiffs’ lives, health and property values....
The defendants’ toxic coal ash . . . settled and continues to settle upon all of the Plaintiffs’ homes, property, real estate and persons. Through such physical invasion and noxious touching, this constitutes a continuing and on-going nuisance. All of the Plaintiffs’ homes, property, real estate and persons have been invaded via airborne ash made up of deadly chemicals, metals, and contaminants, some of which are radioactive. The toxins carried, and continue to be carried, by forces of weather and wind, have resulted in a continuing [100]*100nuisance and noxious touching upon the surfaces of all of the plaintiff’s [sic] homes, property, real estate and persons.

(Compls. ¶¶ 197-98.)

The Fentress Families Trust et al. (CL12-475) action was originally filed on March 27, 2009, as case number CL09-710, and the Darryl Sears, et al. action (CL12-476) was originally filed on August 13,2009, as case number CL09-1914. Both cases were nonsuited and then subsequently refiled as the instant matters on February 21, 2012.

I. Dominion's Motion for Summary Judgment Based on the Statute of Limitations

Dominion has filed a “motion for summary judgment on the statute of limitations” as to all plaintiffs who are not minors and who are not making personal injury claims. Dominion’s motion is specifically regarding plaintiffs’ nuisance claims “for loss of use and enjoyment of their property and diminished property value due to alleged physical invasion of alleged airborne coal as dust that first began in 2002.” (Dominion’s Mot. for Sum. J. on Stat. of Lim. at 2.)

Motions for summary judgment are governed by Rule 3:20, which “provides for a disposition of matters where the only issue is a question of law and no trial is necessaiy because there is no genuine dispute as to any material fact.” Tri-Port Terminals, Inc. v. Hitch S. Branch Terminal, L.L.C., 87 Va. Cir. 314, 315 (Chesapeake City 2013) (citing General Accident Fire & Life Assurance Corp. v. Cohen, 203 Va. 810, 814, 127 S.E.2d 399, 402 (1962)). “Accordingly, a grant of summary judgment is proper if, in consideration of the undisputed facts in the light most favorable to the nonmoving party, it appears that the moving party is entitled to judgment as a matter of law.” Id. at 315-16 (citing Andrews v. Ring, 266 Va. 311, 318, 585 S.E.2d 780, 783-84 (2003)). In considering a motion for summary judgment, the Court accepts as true “those inferences from the facts that are most favorable to the nonmoving party, unless the inferences are forced, strained, or contrary to reason.” Dudas v. Glenwood Golf Club, 261 Va. 133, 136, 540 S.E.2d 129, 130-31 (2001) (quoting Dickerson v. Fatehi, 253 Va. 324, 327, 484 S.E.2d 880, 882 (1997)).

Va. Code §8.01 -23 5 requires that an objection to the statute of limitations be raised as an “affirmative defense specifically set forth in a responsive pleading.” Dominion’s answer, filed March 21, 2014, specifically raises the statute of limitations issue as an affirmative defense. Additionally, Dominion filed a special plea in bar to the statute of limitations on August 31, 2012, and Dominion is now requesting that the Court grant summary judgment on the statute of limitations issue based upon the pleadings, admissions, and answers to interrogatories. See Kohn v. Marquis, 288 Va. 142, 149, 762 S.E.2d 755, 758 (2014) (holding that a trial court did not err [101]*101in granting summary judgment on a plea in bar); Board of Supervisors v. Burke & Herbert Bank & Trust Co., 79 Va. Cir. 26, 28 (Fairfax Cnty. 2009) (granting summary judgment on statute of limitations where no material facts were in dispute); Loftis v. Chesapeake Corp. of Va., 1 Va. Cir. 143 (Richmond City 1972) (granting summary judgment on a special plea).

It is well-established that statutes of limitations are strictly enforced and must be applied unless the General Assembly has clearly created an exception to their application. A statute of limitations may not be tolled, or an exception applied, in the absence of a clear statutory enactment to that effect. Any doubt must be resolved in favor of the enforcement of the statute.

Birchwood-Manassas Assocs., L.L.C. v. Birchwood at Oak Knoll Farm, L.L.C., 290 Va. 5, 773 S.E.2d 162, 163-64 (2015) (quoting Casey v. Merck & Co., 283 Va. 411, 416, 722 S.E.2d 842, 845 (2012)).

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Cite This Page — Counsel Stack

Bluebook (online)
93 Va. Cir. 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fentress-families-trust-v-virginia-electric-power-co-vaccchesapeake-2016.