Summary Judgment Is Becoming More Viable in Virginia

Written by Kate Adams, Esq.

Edited by Bill Pfund, Esq. 

Summary judgment in Virginia state courts, unfortunately, has been akin to finding a four leaf clover, we all know it exists but it is rarely ever granted. However, with the passage of Senate Bill 1486 and a recent decision from Judge David Bernhard of Fairfax Circuit Court, the constraints regarding the type of evidence a court may consider when hearing such motions  is expanding, making summary judgment more attainable.

As reported in the KPM April 2019 Newsletter, Senate Bill 1486 has passed and went into effect on July 1, 2019 which expands the provisions of Virginia Code §8.01-420 and provides that “discovery depositions under Rule 4:5 and affidavits may be used in support of or opposition to a motion for summary judgment in any action when the only parties to the action are business entities and the amount at issue is $50,000 or more.”

Although this change is narrowly tailored to business entities and cases where the amount at issue is over $50,000, this may pave the way for more opportunities to obtain summary judgment in Virginia.

A May 24, 2019 ruling by Judge Bernhard addressed the type of evidence a court can consider when ruling on a motion for summary judgment. In HCP Properties-Fair Oaks of Fairfax VA LLC v. County of Fairfax, Judge Bernhard considered “whether a party can use a deposition of a Corporate Designee of an adverse party in support of its “Plea in Bar” seeking the dismissal of an action, in light of the stricture of Virginia Code §8.01-420 on the use of depositions in support of summary judgment.”  Although the Motion before the Court was labeled a “Plea in Bar” rather than a “Motion for Summary Judgment”, whether to allow the use of a deposition in support of the motion depends upon whether the motion permanently ends the litigation rather than the label placed on it by the attorneys. Judge Bernhard held that Virginia Code §8.01-420 applied to a Plea in Bar, as it had the effect of ending all or part of the litigation with permanence.

The defendant in HCP Properties sought to introduce  de bene esse deposition testimony which, as the court noted, was different from a discovery deposition. The distinction between a discovery deposition and a de bene esse deposition is important to understanding the court’s ruling. A discovery deposition is broad and allows all questions that could reasonably lead to the discovery of admissible evidence, whereas a de bene esse deposition is a deposition taken in lieu of the witness testifying at trial. The de dene esse deposition is the witness’s trial testimony.  In allowing the de bene esse deposition to be introduced in support of the Plea in Bar, Judge Bernhard asserted “this distinction is important because the parties follow the formalities attendant to the creation of trial testimony, an evidentiary scope much narrower than that for mere discovery depositions.”

This opinion is significant as it demonstrates that Virginia state courts may allow evidence which was previously considered inadmissible in support of motions for summary judgment.

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