Schaecher v. Bouffault

88 Va. Cir. 234, 2014 Va. Cir. LEXIS 23

• Court: Clarke County Circuit Court
• Decided: May 7, 2014
• Docket: Case No. (Civil) 14-2737
• Status: Published

Opinion

By Judge John E. Wetsel, Jr.

This case came before the Court on May 7, 2014, on the Defendant’s Demurrer. Gina L. Schaecher, Esquire, appeared for the Plaintiffs; and Julia B. Judkins, Esquire, appeared for the Defendant.

“[A] demurrer admits the truth of all properly pleaded material facts. 'All reasonable factual inferences fairly and justly drawn from the facts alleged must be considered in aid of the pleading. However, a demurrer does not admit the correctness of the pleader’s conclusions of law’.” Arogas, Inc. v. Frederick County Bd. of Zoning Appeals, 280 Va. 221, 224, 698 S.E.2d 908 (2010), quoting Dodge v. Randolph-Macon Woman’s College, 276 Va. 1, 5, 661 S.E.2d 801, 803 (2008).

Upon consideration whereof, it is adjudged and ordered that, first, Defendant’s demurrer is sustained as to all counts of the Complaint for the reasons stated in Court, the most significant of which is that the statements and actions complained of were committed incidentally to the performance of a legislative function of the Defendant as a member of the Clarke County Planning Commission; therefore, they are protected by legislative immunity, see Board of Supervisors v. Davenport & Co., 285 Va. 580, 742 S.E.2d 59 (2013), second, Plaintiffs’ Motion for leave to file an Amended Complaint is granted.

On or before May 29, 2014, the Plaintiffs shall file their Amended Complaint, and the Defendants shall file such response thereto as deemed advisable with twenty-one days of receipt of the Amended Complaint.