Smith v. City of Norfolk

55 Va. Cir. 410, 2001 Va. Cir. LEXIS 306
CourtNorfolk County Circuit Court
DecidedJuly 31, 2001
DocketCase No. (Law) L00-1760
StatusPublished
Cited by2 cases

This text of 55 Va. Cir. 410 (Smith v. City of Norfolk) is published on Counsel Stack Legal Research, covering Norfolk County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. City of Norfolk, 55 Va. Cir. 410, 2001 Va. Cir. LEXIS 306 (Va. Super. Ct. 2001).

Opinion

BY JUDGE LYDIA CALVERT TAYLOR

This matter is before the Court on the Defendants’ Motion to Vacate the filing of Plaintiffs Motion for Judgment For the following reasons, this Court sustains the Defendants’ Motion to Vacate the filing of the Plaintifis’ Motion for Judgment and dismisses the case with prejudice.

Facts

The Plaintiffs, Thomas and Annette Smith, husband and wife, allege they were the partners in a Virginia general partnership known as Atlantic Association, which leased certain real property with option to purchase from Melvin J. Nelson. Shortly thereafter, Atlantic Association contracted to sell tile property to Man-Jac Construction Company, Inc. That contract was subject to certain contingencies, one of which was that Man-Jack be granted a use permit by the City of Norfolk to enable it to construct 45 two-bedroom apartment units thereon; the contract was voidable by Man-Jac if the use permit were not to be granted. Man-Jac thereafter applied for the permit, which, though approved by the City Planning Commission, was not approved by the City Council. Man-Jac learned in June 1989 — and the Plaintifis learned the following month — that the City Council had not approved the use [411]*411permi^1 in response to which Man-Jack wrote Plaintiffs on June 20,1989, that it was exercising its right to void the contract as a result of its inability to obtain the necessary use permit.

Plaintiffs allege that Jack Jacovides, the principal of Man-Jac, advised them in July 1989 that pressure was coming from “high up” not to issue the permit; that the City did not want apartments built on the property (the property was zoned for business); that the City did not want any more apartments in the City anyway; that the City had become known as the black rental community; that the City was trying to force the black community out of Norfolk; that all Jacovides had been dealing with was renting to blacks; and that the City would go with four-family duplexes, but not apartments.

Procedural History

The Plaintiffs have filed a number of lawsuits based on the identical set of facts alleged here.

First, Case 2:92cv56 was filed in the U.S. District Court for the Eastern District of Virginia, Norfolk Division, on January 21,1992, by Thomas and Annette Smith against the City of Norfolk, the Norfolk City Council, the Norfolk City Manager, and Ronald W. Massie. The causes of action were (1) a civil rights action under 42 U.S.C. §§ 1981 and 1982, and (2) violation of the plaintiff’s due process rights under the 14th Amendment to the U.S. Constitution. The case was dismissed on August 6,1992, because the two-year personal injury statute of limitations (not the five-year property damage statute of limitations claimed by the Plaintiffs in their pleadings in this case) had expired and because of insufficient evidence.2

Case Number CL92-1293 was next filed in Norfolk Circuit Court on April 20,1992, on the same facts, again by Thomas and Annette Smith and against the City of Norfolk, the Norfolk City Council, the Norfolk City Manager, and Ronald W. Massie as defendants. The causes of action were (1) negligent and intentional infliction of emotional distress, (2) statutory conspiracy, and (3) tortious interference with business. That case was nonsuited by plaintiff on August 23, 1993, just after the trial court indicated it would sustain defendants’ demurrers.

[412]*412The third incarnation of these actions was Case Number CL93-4428, filed in Norfolk Circuit Court on December 2, 1993, by Thomas and Annette Smith, again against the City of Norfolk and Ronald W. Massie, but this time adding Man-Jac Construction Co., Inc., and Jack Jacovides. The causes of action were (1) negligence; (2) intentional interference with business relationship; (3) breach of contract; (4) conspiracy to interfere with contract (tortious interference); and (5) conspiracy to injure plaintiffs in their business (a second count of tortious interference). On June 8,1994, this court sustained tile defendants’ demurrers on all counts and dismissed the case, holding for all counts that Thomas and Annette Smith were not the proper parties in the case and that the suit should have been brought in the name of Atlantic Association, a general partnership having Thomas and Annette Smith as the general partners. Specific additional reasons were given for dismissing each count: (1) Count One: no statutory notice was given and the two-year personal injury and three-year contract statutes of limitations had expired; (2) Count Two: insufficient evidence; (3) Counts Ihree, Four, and Five: causes of action barred against Man-Jac on the basis of res judicata and collateral estoppel, based on the previously litigated case of Man-Jac v. Atlantic Associates (see infra); (4) Counis Four and Five: failure to state a cause of action for conspiracy or tortious interference. The petition for appeal was denied by the Supreme Court of Virginia on January 3, 1995.

Less than six months after that affirmation of the judgment adverse to them in CL93-4428, Plaintiffs filed Case Number CL94-2833 in Norfolk Circuit Court on June 20, 1994, against the City of Norfolk, Ronald W. Massie, Man-Jac Construction Co., Inc., and Jack Jacovides.3 The causes of action were (1) interference with business relationship; (2) breach of contract; (3) conspiracy to interfere with contract; (4) conspiracy to injure plaintiffs in their business; (5) violation of due process; and (6) negligence. The court sustained the defendants’ demurrers and pleas in bar on all counts and dismissed the case with prejudice on May 19,1995, with no specific grounds stated. The court in that case also entered an order on May 19,1995, which stated:4

Any pleadings, papers, or other filings by Thomas Smith, Annette Smith, or anyone in privity with them or filing for them, whether in [413]*413this action or any new cause of action against any of the defendants, is subject to a judicial review by a judge of this court prior to the clerk’s filing the same and that the judge shall direct whether or not the submission is a meritorious filing and whether or not it should be filed with the clerk.

Case number CL95-959, filed by Thomas Smith alone on March 27, 1995, sued the City of Norfolk, Ronald W. Massie, Man-Jac Construction Co., Inc., and Jack Jacovides, as before, but added the law firms of Crenshaw, Ware & Martin; Knight, Dudley, Dezem & Clarke; Williams, Kelly & Greer, and attorneys Ann K. Sullivan, William M. Sexton, Timothy S. Brunick, and Jack E. Greer, attorneys for the defendants in some of the prior suits by the Smiths. The causes of action were (1) denial of due process (false statements of material fact made to the court in previous litigation); (2) emotional distress; and (3) conspiracy by the attorneys to injure the plaintiff in his business. The court sustained the defendants’ demurrers and motions for summary judgment and dismissed the case with prejudice on May 19,1995. The court’s order of May 19, 1995, supra, was also entered in CL95-959.5

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Estate of Chiocca v. Spinella
84 Va. Cir. 493 (Richmond County Circuit Court, 2012)
Pathak v. Trivedi
61 Va. Cir. 572 (Virginia Circuit Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
55 Va. Cir. 410, 2001 Va. Cir. LEXIS 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-city-of-norfolk-vaccnorfolk-2001.