The Mirror gets a Legal Lesson

While covering the court case of Dufty vs. Northampton County, we realized that we were in trouble when we encountered the actual claims, as well as other motions filed by the defendant. There were several aspects of the case that we reported, which were if not askew, were completely wrong. The Mirror however was able to meet with County Attorney Bruce Jones and Beverly Leatherbury to discuss the case and clear up some erroneous reporting.

Motion Craving Oyer
We will be the first to admit that we had no idea what this meant, but did research on the Virginia Legal website, “Basically, a motion to crave Oyer is a “request to require that a document sued upon, or a collateral document which is necessary to the plaintiff’s claim, be treated as though it were part of the plaintiff’s pleadings.”-[ Resk v. Roanoke County, 73 Va. Cir. 272, 274 (Va. Cir. Ct. 2007)]

The county may crave Oyer of all documents that form the basis of Dufty’s claim, as “no intelligent construction of any writing or record can be made unless all of the essential parts of such paper or record are produced. However document for which oyer is craved must be one that is essential to the plaintiff’s complaint. [Station # 2, LLC v. Lynch, 2008 Va. Cir. LEXIS 52 (Va. Cir. Ct. 2008)]. From the court’s standpoint, granting Oyer would allow it to view all material parts of a record so that an objective, intelligent construction of the record can be made without being swayed by the subjective arguments of either party.”

So far so good, but then we wrote, “ The hurdle, according to Dufty, is that after attempting to compile the documents to comply with the oyer, the records at the county were boxed, not labeled or indexed, so finding them would be a lengthy task”. This turned out to be wrong. First, the documents were available, but also, the County Attorney actually compiled them, and attached them to the motion (Mr. Jones and Ms. Leatherbury took me to the clerk’s office and confirmed this). Contained with the Oyer were items such as the deeds to Mr. Dufty’s properties that were listed in the claim.

The Mirror next wrote, “Judge Lewis began the proceedings by sustaining the Motion Craving Oyer and directed Dufty to produce the required documents. According to Dufty, he plans to offer an official complaint with the Library of Virginia requesting an audit of the county’s bookkeeping practices.” This was again, erroneous as Mr. Dufty was not ordered to produce anything. As was previously stated, the documents listed in the oyer were made part of the County’s package.

We admit to still being a bit confused by Craving Oyer, and continue to find arguments that seem contradictory in this regards.

Standing

The Mirror wrote, “The premise being, since Ken Dufty was not listed on the deed of the disputed property (his wife Mary is actually listed on the deed), and, in the county’s eyes is not the ‘owner’, he does not have standing.” This statement was only partially correct. Mr. Jones and Ms. Leatherbury, after going over the County’s motion, noted that of the five properties mentioned by Dufty, only two were in the County (not in Exmore), and of those two, only one contained Mr.Duty as the owner on the deed.

Further, the demurrer focuses on this one property, a rental property on Wardtown Road that was zoned Hamlet in 2009 and remains zoned Hamlet in 2015. The county’s motion notes that Mr. Dufty’s complaint fails to allege facts from which the Court could conclude that he has been aggrieved by the 2015 zoning, “that the claim is based on speculation that the 2015 zoning will adversely affect property” in the County (not owned by the plaintiff), and this will cause percuniary harm to Dufty’s property. The county points to Braddock vs. Loudon County Board of Supervisors, where the plaintiff was to prove that a land decision affecting another property owner will also affect their property. The county also notes that the law has been settled in respect to when an individual is aggrieved, and this is that a person must be able to prove that he/she has ‘a direct interest in the subject matter’ of the proceeding they seek to attack (Nicholas vs. Lawrence, 161 VA 589, 582, 171 S.E. 673, 674(1933). Noting other cases, the county also states that a plaintiff does not have standing to assert purely abstract questions, no matter how interesting or important, but only has standing to correct that which caused direct injury to him/her.

Obviously, NPR legal correspondent Nina Totenberg has nothing to fear from the Cape Charles Mirror’s court room reporting. Although, we did learn something from our mistakes.

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Wayne Creed

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