Virginia: Pleas in Bar – a Lawyer’s Preemption
On December 16, 2009, Defendant in the brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester, Virginia, lost the issue of sovereign immunity on its Plea in Bar. The trial judge ruled his findings of “ministerial act” and “simple negligence” were preemptive, not subject to relitgation before a jury; so Defendant has set reconsideration for hearing on January 14, 2010.
In Stanardsville Vol. Fire Co. v. Berry, 229 Va. 578, 587(1985), the Virginia Supreme Court emphasized than an evidentiary hearing on Plea could not be aborted mid-stream and that its finding is “binding and conclusive” on the issue submitted. “In the case of an issue on a plea in equity, not only does either party have the right to a jury trial, but the jury may not be discharged before verdict and its verdict, when returned, is as binding and conclusive upon the factual issue submitted to it as is a jury verdict in an action at law.’ Although Stanardsville focuses on a jury sitting as trier of fact on a Plea, where as in the Gagnon brain injury case the parties elect to have the judge sit as the trier of fact, the judge’s verdict and findings likewise are equally mandated, binding and conclusive.
Cooper Indus., Inc. v. Melendez, 260 Va. 578, 594 (2000) reaffirmed that a “plea in bar is a defensive pleading that reduces the litigation to a single issue,” the findings on which are preemptive for the litigation. In Cooper, defendants interposed a Plea in Bar on statute of repose, the trial court tried the same ore tenus and found plaintiff was not time-barred, id. at 581; which finding was not subject to relitigation before the jury subsequently. Id. at 594-595. “When the trial court hears the evidence ore tenus, its findings are entitled to the weight accorded a jury verdict . . . .” Id. at 595.
“Pleas in bar are also designated peremptory pleas ….”M.J. Pleading §45 at 364 (emphasis added). “A plea in bar is one to the substantial merits of the case….” Id. at 363.
“A plea of sovereign immunity presents distinct issues of fact that, if proved, create a bar to a parties’ alleged right of recovery.” Gambrell v. City of Norfolk, 267 Va. 353, 357 (2004). Under the fourth prong of Virginia’s test for sovereign immunity, the trier is required to make findings whether the Defendant’s act in question was one of “gross negligence” or “simple negligence” and was “ministerial” or involved “judgment and discretion,” which findings were the focus of the Gagnon brain injury case.
Similarly, the issue of charitable immunity on Plea in Bar presents dual questions of fact upon which a trial court must make findings: whether defendant is a “charitable organization” and whether plaintiff is a “beneficiary of its charitable services”. The Court’s ore tenus hearing is dispositive on the issue and its subsidiary findings. E.g., Ola v. YMCA, 65 Va. Cir. 456, 460-466 (Norfolk Sep. 10, 2004) affirmed, 270 Va. 550, 555, 557-565 (2005).
Painter v. Singh, 72 Va. Cir. 243 (Nov. 13, 2006) on reh. 73 Va. Cir. 77 (Mar. 12, 2007 Fairfax) illustrates that a party cannot “double dip” with Plea hearing by judge and then trial by jury. The trial judge in Painter sat as trier of fact for the Plea in Bar on the statute of limitation. 72 Va. Cir. 243. As in the Gagnon brain injury case, the judge “heard opening statements, heard from multiple live witnesses, was given deposition transcripts to read as additional evidence, and heard closing argument.” 73 Va. Cir. at 78. “There then followed a colloquy between the court and Plaintiffs’ counsel on the record [about subsequent jury trial].” Id. The judge made pages of findings, 72 Va. Cir. at 243-248; and ruled against Plaintiff.
Although Plaintiff in Painter did not request that the Plea be tried before a jury as entitled, the losing Plaintiff asserted that “disputed factual issues must be reserved for [jury] trial,” and sought to relitigate before a jury at trial the adverse findings made by the trial judge. Id. at 78. The trial judge disabused counsel about the nature of a Plea in Bar and its findings:
Its very purpose is to decide factual issues whose determination, when
applied to certain legal principles, may end or limit pending litigation. Those
factual issues in a plea in bar can be decided by a judge or by a jury. Mrs. Painter
was free to demand a jury trial on the plea in bar [but did not do so through
hearing]. Rather, Plaintiff continued to misapprehend the purpose and parameters
of a plea in bar hearing. It is not, as Plaintiff seems to contend, a motion for
summary judgment by another name. Conversely, a plea in bar is an opportunity
for disputed facts to be resolved by a trier of fact, if doing so might end the
litigation as a result of a legal principle. * * * Having not requested a jury,
either in writing or orally at hearing itself, Plaintiff waived her right to have a
jury decide the factual issues raised at the plea in bar.
Id. at 78-79 (citations omitted)(emphasis added). Hence, the Motion for Reconsideration was denied. Id. at 79.
