October l, 2012

John R. Walk, Esq. Hirschler Fleischer The Edgeworth Building 2100 East Cary Street Richmond, VA 23219

Re: Study Committee for Va. § 8.01-273(A)- The "I3emurrer" Statute Donna Miller Rostant, Attorney at Law, Chair Hon. Dennis Smith Steven Garver, Esquire Bruce Titus, Esquire lion. Lisa Kemler ttarry Ware, Esquire William Wilson, Esquire

Dear John:

Enclosed is our Study Committee’s report regarding the question:

Does the Demurrer statute, Virginia Code §8.01-273(A), need to be clarified to more specifically set tbrth when a demurrer should be sustained?

Please let me know if you have any questions or need anything fi~rther from our Committee.

¯ y tt yours, I am

Study Group Chair

Enclosure as stated

2012 BOYD-GRAVES COMMITTEE REPORT

Dgm!~rrer Statute Study Committee

Committee Members:

Donna Miller Rostant, Attorney at Law, Chair Steven Garver, Esquire Judge Lisa Kemler Judge Dennis Smith Bruce Titus, Esquire Harry Ware, Esquire William Wilson, Esquire

Task Presented To Committee for Study:

Our question for study was:

Does the Demurrer statute, Virginia Code §8.01-273(A), need to be clarified to more specifically set forth when a demurrer should be sustained?

Study Conducted by Committee:

The Committee communicated by e-mail and conference call. The VADA, VTLA and

various individual practitioners were canvassed to solicit reports of personal experience

with demurrers generally and specifically. The Committee reviewed relevant case law,

legal treatises and law review articlesJ

The Committee also reviewed a Demurrer and an Opposition to Demurrer. The

Demurrer was to the phrases "reasonably prudent healthcare provider under like circumstances" and "failing to act as a reasonably prudent surgeon would have acted in like or similar circumstances". Twenty-nine Orders were attached as exhibits to the Demurrer and Opposition. The orders, from various circuit courts, either sustained or overruled

Demurrers.

Va Code §8.01-273(A) Page l Scope of Problem:

By way of background, various attorneys have expressed concerns and frustration regarding the inconsistent application and perceived misuse and overuse of the demurrer statute.

While the statute on its face seems relatively straightforward, various courts have sustained demurrers to a clause in a sentence, in a paragraph within the Complaint. As evidenced in the Demurrer and Opposition reviewed by the Committee, demurrers to clauses such as "and other acts of negligence" or "failing to act as a reasonably, prudent person would in the same or similar situation" have been filed with varying success.

Conflicting rulings have caused an almost routine filing of a Demurrer to a Complaint in some jurisdictions.

While the problem seems localized to a few areas within the Commonwealth, the result is a burden upon precious judicial resources, a potentially adversarial and convoluted discovery process and, if the Demurrer is sustained, impediments to the factual development of a case.

With that framework, the Committee understood the issue before it was to evaluate whether the demurrer statute was used or misused, whether the application of the statute was appropriate and consistent, and to determine what recommendations, if any, to make to the conference as a whole.

Va Code §8,01-273(A) Page 2 The Committee discussed three general areas of inquiry:

(1) Is there a genuine misuse of, or inconsistent application of §8.01-273(A), the

demurrer statute, or is it a perceived problem?

(2) If the problem is a real one, does the statute need to be clarified or modified?

(3) If the statute does not need clarification and is, instead misused, what

remedies, if any, are available and appropriate?

The Committee also discussed an ancillary, yet complex, issue of overbroad

Complaints but deferred further analysis because the issue was so broad and encompassing

as to be worthy of a separate study group.

Applicable Case Law and Rules:

Virginia Code Section 8.01-273(A) states as follows:

A. In any suit in equity or action at law, the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted may be made by demurrer. All demurrers shall be in writing and shall state specifically the grounds on which the demurrant concludes that the pleading is insufficient at law. No grounds other than those stated specifically in the demurrer shall be considered by the court. A demurrer may be amended as other pleadings are amended.

A careful reading of the statute reveals that the current state of Virginia law

regarding demurrers is relatively clear. By statute, in any suit in equity or action at law, a

demurrer to a pleading may be had on either of two grounds: (1) that the pleading does not state a cause of action (i.e., does not allege the essential elements of a claim recognized in

Virginia); or (2) that the pleading fails to state facts upon which relief is demanded (i.e., the

pleading alleges only conclusions in the absence of facts to support them). The Virginia

Supreme Court has repeatedly held that the issue on demurrer is "whether the ...motion for

Va Code §8.01-273(A) Page 3 judgment alleged sufficient facts to constitute a foundation in law for the judgment sought, and not merely conclusions of law." Kitchen v. City of Newport News, 275 Va. :378, :385, 6S7

S.E.2d 1:32, 1:36 (2008).

The Court has stated very clearly that the question on demurrer is whether the complaint as a whole states a cause of action, not whether certain words in isolation state a cause of action. See Do~ v, Zwelling. 270 Va. $9, 599, 620 S.E.2d 750, 752 (200S)

("Because a demurrer goes to a whole pleading to which it is addressed, it should be overruled if any part of the pleading states a cause of action upon which relief may be granted.")

Virginia dispensed with most vestiges of common law pleading with amendments to the Rules of the Supreme Court of Virginia that went into effect on March 1, 1972. Efforts to modernize Virginia pleading practice culminated in the 1977 revision of Title 8.01.1 For two generations Virginia courts have employed a system of notice pleading which dispensed with the cumbersome and often rigid requirements of what a party was required to "declare" initially.2 Current rules require only that the complaint clearly inform "the opposite party of the true nature of the claim.’’3

A pleading must state the facts upon which the party relies and is sufficient if it clearly informs the other party of the true nature of the claim. Rule 1:4(d). A simple statement of the essential facts is sufficient. Rule 1:40). In a cause of action for negligence, an allegation of negligence is sufficient without specifying the particulars of the negligence.

Rule 3.18(b).

See, generally, Middleditch, et al., VIRGINIA CIVIL PROCEDURE, Appendix 11 (2d ed., Michie 1993) [reprinting Report of the Virginia Code Commission]. 2See, e.y., Virginia Rules, 1:4, 3:2 and 3:18. ~ Virginia Rule 1:4 (d).

Va Code §8.01-273(A) Page 4 Thus, a plaintiff is not required "to descend into statements giving the details of

proof in order to withstand demurrer" if the complaint informs the defendant of the nature

and character of the claim. CaterCorp., Inc. v. Catering Concepts, Inc., 246 Va. 22, 24, 431

S.E.2d 277, 279 {1993).

Anoly~is By Committee:

The Committee discussed the statute, applicable case law and the rulings by various

circuit courts. The Committee further discussed whether phrases in a Complaint (such as

.... failing to act as a reasonably prudent provider would have acted in like or similar

circumstances" or "failing to adhere to the standard of care") are properly the basis for

Demurrer.

The Committee found that the there are two types of recognized demurrers. The

first, a "legal" demurrer" attacks the cause of action as one not being recognized in the

Commonwealth. The Committee concluded that this demurrer is purely a legal issue.

The second, and more common demurrer, is a challenge to a cause of action that is

recognized in the Commonwealth, but for which the facts have been inartfully or

inadequately pied. Although appropriate, the Supreme Court has limited the use of the

second type demurrer. "A demurrer tests the legal sufficiency of facts alleged in pleadings,

not the strength of proof. We accept as true all facts properly pleaded in the bill of

complaint and all reasonable and fair inferences that may be drawn from those facts."

Glazebrook v. Bd of Supervisors, 266 Va. 550, 554, 587 S.E. 2d 589, 591 (2003).

The Committee found that a "third type" of demurrer that generated this Study

Group was an extra-judicial, "housekeeping" type demurrer. This "third type" usually involved phrases found in a Complaint such as ....failing to act as a reasonably prudent

Va Code §8.01-273(A) Page 5 provider would have acted in like or similar circumstances" or "failing to adhere to the

standard of demurrer". Much like a housekeeping task, this third type requests the court

essentially rewrite portions of a Complaint that are not to a litigant’s liking. Using the

demurrer statue in this instance, the Committee concluded, was a misuse of the statute.

Committee O_vinion:

After a thoughtful and thorough discussion, the Committee determined the following:

(1) Is there a genuine misuse of, or inconsistent application of §8.01-273(A), the

demurrer statute, or is it a perceived problem?

Conclusion: In some instances, the demurrer statute has been misused and inconsistently applied. Thus, the problem is a real one.

(2) If the problem is a real one, does the statute need to be clarified or modified?

Conclusion; The Committee did not believe the statute was unclear, nor did the Committee feel the statute needed modification. The statute is straightforward and unambiguous.

(3) If the statute does not need clarification and is being misused, what remedies, if any, are available and appropriate? Conclusion; The Committee members, at the suggestion of the judicial members, believed an education solution was the proper remedy and could be implemented at a ludicial Conference.

Va Code §8.01-273(A) Page 6