Title Insurance Client Alert – Recent Fairfax Circuit Court Letter Opinion Relating to Motions Craving Oyer

    By James L. Windsor, , Real Estate Claims & Title Insurance Solutions

    Motions craving oyer are frequently used by Virginia real estate litigators. They are a useful tool because they help avoid discovery, win cases on demurrer, and conclude cases faster. A recent letter opinion of the Fairfax Circuit Court is very important and instructive to any Virginia litigator using, or considering using, motions to crave oyer

    In Logan Antigone, et al. v. Jay C. Taustin, Case No. CL-2017-16560 (Fairfax County Circuit Court, March 2, 2018), Judge David A. Oblon considered whether a defendant (Taustin) may crave oyer for documents other than (1) deeds or (2) letters of probate and administration. The Circuit Court held that Taustin could not do so, outside some narrow exceptions that did not apply in this case. These exceptions included (1) the agreement of the parties, or (2) supplements to documents related to deeds or probate already attached to a complaint. 

    The plaintiffs (Antigone) filed a complaint seeking a declaratory judgment and other relief related to the ownership and control of some limited liability companies. Taustin filed a motion craving oyer in order to incorporate certain documents referenced in, but not attached to, the complaint, including articles of incorporation, operating agreements, amendments to operating agreements, a settlement agreement in a related case, and two confessed judgment promissory notes. Taustin argued that the contents of those documents formed the basis of the complaint and were referenced in the complaint.

    The Circuit Court noted that at common law, motions craving oyer were limited to incorporating only deeds or letters of probate and administration. Prior to 1977, a statute addressed motions craving oyer, but this statute was not included in the Code of Virginia when it was substantially revised that year.

    Defendants could originally crave oyer of only sealed instruments in the permitted categories of deeds or letters of probate and administration. The Supreme Court of Virginia expanded the types of documents subject to motions to crave oyer to include signed contracts that were not under formal seal but were within the permitted categories. The Supreme Court of Virginia further expanded the doctrine to include other, unsealed records, if they were necessary to supplement records already attached to a complaint in a case, and were within the permitted categories.

    The Supreme Court of Virginia further expanded the use of motions craving oyer to permit them when parties mutually consent to them in a given case. In those instances, which may include oyer for documents otherwise outside the permitted categories of deeds or probate, Virginia courts treat the newly attached documents as part of the complaint. Virginia Appellate courts do the same in cases where oyer is unopposed at the trial level. 

    In the Circuit Court’s view, however, the Supreme Court of Virginia has not explicitly expanded the permitted use of motions craving oyer beyond deeds or letters of probate and administration and other documents as set forth above. The Circuit Court was aware of no Supreme Court of Virginia opinion where a defendant had successfully craved oyer for corporate documents or other similar documents over a plaintiff’s objection. 

    Taustin argued that the Supreme Court of Virginia, in Culpeper Nat. Bank v. Morris, 168 Va. 379, 382, 191 S.E. 764, 765 (1937) (Culpeper), expanded the use of motions craving oyer to permit them for documents of any category – even on a contested basis. Culpeper, in the context of a will contest, held that once the plaintiff offered edited parts of a lower court record along with its complaint, the defendant could crave oyer for the rest of the record to make it complete. Id.

    The Circuit Court distinguished Culpeper, however. The context of the motion craving oyer in Culpeper was “probate.” This was one of the permitted categories eligible for oyer under common law. In the Circuit Court’s view, if the Culpeper Court had intended to broaden the permissible categories of oyer, it would have said so. 

    The Circuit Court concluded that Taustin did not seek oyer in connection with deeds or letters of probate and administration or other permitted categories. Rather, he sought various corporate documents. There were no documents already attached to the complaint that could have been supplemented. Antigone did not consent to the motion craving oyer. Because the subject matter was outside the scope of oyer and because the recognized exceptions did not apply to the case, the Circuit Court denied the motion craving oyer.

    If you have any questions regarding this interesting and significant opinion concerning motions craving oyer, or real estate litigation issues in general, please contact me at (757)873.6308 or, or Dan Basnight at (757)873.6309 or 

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