Opinion
Civil Docket No.: CL14-6942-00 Civil Docket No.: CL14-6942-01
07-29-2015
Re: Jane Doe v. Virginia Wesleyan College Virginia Wesleyan College v. Robert Roe
Jonathan E. Halperin, Esq. Andrew Lucchetti, Esq. HALPERIN LAW CENTER, LLC 5225 Hickory Park Drive, Suite B Glenn Allen, Virginia 23059 Stuart L. Plotnick, Esq. LAW OFFICES OF STUART L. PLOTNICK 51 Monroe Street, Suite 701 Rockville, Maryland 20850 Mark C. Nanavati, Esq. G. Christopher Jones, Jr., Esq. SINNOTT, NUCKOLS & LOGAN, P.C. 13811 Village Mill Drive Midlothian, Virginia 23114 George J. Dancingers, Esq. Sally J. Moore, Esq. Scott C. Hartin, Esq. MCKENRY DANCINGERS DAWSON, P.C. 192 Ballard Court, Suite 400 Virginia Beach, Virginia 23462
Jonathan E. Halperin, Esq.
Andrew Lucchetti, Esq.
HALPERIN LAW CENTER, LLC
5225 Hickory Park Drive, Suite B
Glenn Allen, Virginia 23059 Stuart L. Plotnick, Esq.
LAW OFFICES OF STUART L. PLOTNICK
51 Monroe Street, Suite 701
Rockville, Maryland 20850 Mark C. Nanavati, Esq.
G. Christopher Jones, Jr., Esq.
SINNOTT, NUCKOLS & LOGAN, P.C.
13811 Village Mill Drive
Midlothian, Virginia 23114 George J. Dancingers, Esq.
Sally J. Moore, Esq.
Scott C. Hartin, Esq.
MCKENRY DANCINGERS DAWSON, P.C.
192 Ballard Court, Suite 400
Virginia Beach, Virginia 23462 Dear Counsel:
Today the Court rules on the Special Plea in Accord and Satisfaction ("Special Plea") filed by Third-Party Defendant Robert Roe ("Roe") and the related Demand for Trial by Jury ("Jury Demand") filed by Third-Party Plaintiff Virginia Wesleyan College ("VWC"). The two issues before the Court are: (1) whether there are any disputed issues of fact regarding the Special Plea that properly should be resolved by a jury and (2) whether VWC's pursuit of its Amended Third-Party Complaint against Roe is precluded by the Confidential Settlement Agreement and Release between VWC and Roe (the "Agreement"). Because there are no disputed issues of fact related to the Special Plea and because the Court finds that filing the Amended Third-Party Complaint is not precluded by the Agreement, the Court DENIES VWC's Jury Demand and DENIES Roe's Special Plea. The Court further articulates the reasons for its rulings herein.
Background
Doe had recently begun her freshman year as a student at VWC in August 2012. (Compl. 2). Doe alleges that on or about August 24, 2012, (id. ¶ 5), she was raped and sexually assaulted by Roe—another VWC student—in a VWC dormitory, (id. ¶¶ 26-27), and that VWC is liable for the resultant damages, (see generally id.). Doe alleges that she attended an on-campus party (the "Party") "sponsored" by a VWC-employed orientation peer advisor, where she admits that she voluntarily consumed alcohol offered to her. (Id. ¶¶ 12-13). The alcohol available at the Party allegedly "was spiked with an agent designed to incapacitate [Doe and others] and render them vulnerable to sexual assault." (Id. ¶ 17). VWC-employed security officers allegedly visited the Party at some point, observed "alcohol available for teenager consumption," and took no action. (Id. ¶ 15). Doe allegedly left the Party with some friends, who were impaired, to help them get to their dormitory rooms. (Id. ¶ 21). Doe alleges that Roe followed her and her friends after they left the Party and that, once Doe had escorted her friends back to their dormitory rooms, Roe assaulted Doe and "forced her back to his dorm room," where she alleges Roe raped and sexually assaulted her. (Id. ¶¶ 23-27). Doe prays for judgment against VWC based on three counts: negligence, gross negligence, and fraud. (See generally id.).
Sometime after the alleged August 24, 2012, incident ("the Incident"), Roe departed VWC as a student, at which time VWC and Roe entered into the Agreement. The Agreement includes, inter alia, a recitation of intent, (Agreement, Recitation D), a non-disparagement clause, (id. ¶ 5), and a release clause, (id. ¶ 6).
The recitation states, "[Roe and VWC] desire to resolve the differences between them relating to the Incident and subsequent administrative proceedings without the need for litigation." (Agreement, Recitation D).
Although there are no paragraph titles and there was some disagreement at the hearing regarding whether Paragraph 5 of the Agreement is a "non-disparagement" clause, the Court—for purposes of this Opinion—refers to it as such.
VWC filed a third-party complaint against Roe, which it later amended, seeking indemnity and contribution. (See generally Third-Party Compl.; Am. Third-Party Compl.). When referring to Roe as the Third-Party Defendant, VWC consistently used the pseudonym "Robert Roe" instead of Roe's actual name. (See id.). The Amended Third-Party Complaint is the basis for the Special Plea.
The parties subsequently filed various motions. The parties were before the Court on April 23, 2015, for VWC's Demurrer, Roe's Demurrer, Doe's Motion to Strike, VWC's Motion for Bill of Particulars, and Roe's Special Plea in Bar. The Court rendered its rulings on those motions in its June 20, 2015, Opinion Letter.
The parties most recently were before the Court on July 16, 2015, for a hearing on the Jury Demand and Special Plea.
Positions of the Parties
Although the pleadings at issue are part of the record, the Court elects to highlight specific, relevant portions of them herein.
Roe's Special Plea in Accord and Satisfaction
Roe relies on the Agreement as the basis for his Special Plea. (Special Plea 1). Roe points out that, pursuant to the Agreement, VWC "covenanted" not to "' do or say anything at any time which could reasonably be interpreted as intended to harm the personal , business , or other interests of [Roe] .'" (Id. ¶ 10 (quoting Agreement ¶ 5)). Roe argues that VWC's filing of the Amended Third-Party Complaint qualifies as an act that could reasonably be interpreted as intended to harm him. (Id. ¶ 20). Roe prays for dismissal of the Amended Third-Party Complaint given VWC's violation of the Agreement. (Id. ¶ 21).
Roe's Brief in Support of Special Plea and Opposition to Jury Demand
Roe argues that VWC is bound by the plain terms of its unambiguous contract with Roe, i.e., the Agreement. (Br. in Supp. and Opp'n to Jury Demand ¶ 1). Roe asserts that the plain language of the Agreement precludes VWC from pursuing the Amended Third-Party Complaint. (Id. ¶ 19). Roe also suggests that the Court should deny VWC's Jury Demand because there are no issues of fact for a jury to resolve. (Id. ¶¶ 19-24). Roe again asks the Court to dismiss the Amended Third-Party Complaint as a matter of law. (Id. ¶ 24).
VWC's Response to Special Plea and Jury Demand
VWC acknowledges entering into the Agreement, but denies that the Agreement releases Roe from liability or that VWC entered into the Agreement intending to release Roe. (Resp. ¶¶ 2-3). VWC admits that when it entered into the Agreement it did not foresee any situation where it might take legal action against Roe, (id. ¶ 4), but nevertheless asserts that the contractual language does not release Roe, (id. ¶ 6). VWC points out that the more specific release language in the Agreement—which it argues takes precedence over the recitation of intent—is actually a one-way release provision that releases VWC but not Roe. (Id.). VWC also denies that the Amended Third-Party Complaint defames, disparages, or impugns Roe. (Id. ¶ 9). VWC's position is that the Amended Third-Party Complaint "simply seeks indemnification or contribution from Robert Roe in the event Plaintiff proves a rape, sexual assault, or other harm she alleged." (Id. ¶ 11 (emphasis in original)). VWC asks the Court to overrule the Special Plea in Accord and Satisfaction. (Id. ¶ 17).
Although the non-disparagement clause states that VWC will not, inter alia, defame, disparage, or impugn Roe, Roe in his Special Plea asserts only that VWC's filing of the Amended Third-Party Complaint violated VWC's agreement to "not ... do or say anything at any time which could reasonably be interpreted as intended to harm the personal, business, or other interests" of Roe. (Br. in Supp. and Opp'n to Jury Demand ¶ 2; Reply ¶ 9; see also Special Plea ¶¶ 10, 15, 18). The Court therefore need not—and does not—evaluate whether VWC's filing of the Amended Third-Party Complaint is an act that defamed, disparaged, or impugned Roe.
Roe's Reply to VWC's Response
Roe claims that, inter alia, VWC is attempting to escape the plain meaning of the Agreement and that VWC's intent and purpose are irrelevant. (Reply ¶¶ 3-4). Roe disputes VWC's position that the "lawsuit against Roe," i.e., the Amended Third-Party Complaint, "could not reasonably be interpreted as intended to harm the personal, business, or other interests of Roe." (Id. ¶ 12). Roe again seeks dismissal of the Amended Third-Party Complaint. (Id. ¶ 13).
Analysis
Legal Standard
The Virginia Constitution provides the right to jury trial in certain actions at law. Va. Const. art. 1, § 11. This right is only guaranteed, however, if there is a need to resolve disputed facts. Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 96, 376 S.E.2d 525, 529 (1989). Stated differently, "[t]he province of the jury is to settle questions of fact, and when the facts are ascertained the law determines the rights of the parties." W. S. Forbes & Co. v. S. Cotton Oil Co., 130 Va. 245, 260, 108 S.E. 15, 20 (1921).
"[I]t is the duty of the court to construe a written contract when it is clear and unambiguous on its face." Online Res. Corp. v. Lawlor, 285 Va. 40, 54, 736 S.E.2d 886, 894 (2013). The law further provides that "when the terms of a contract are clear and unambiguous, a court is required to construe the terms according to their plain meaning." Golding v. Floyd, 261 Va. 190, 192, 539 S.E.2d 735, 736 (2001). "Ambiguity exists if the text can be 'understood in more than one way or refers to two or more things simultaneously [or] when the language is difficult to comprehend, is of doubtful import, or lacks clearness or definiteness.'" Boyton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006) (quoting Brown v. Lukhard, 229 Va. 316, 321, 330 S.E. 2d 84, 87 (1985) (citation omitted)). "Contracts are not rendered ambiguous merely because the parties disagree upon the meaning of the language used to express the agreement. Even though an agreement may have been drawn unartfully, the court must construe the language as written if its parts can be read together without conflict." Doswell Ltd. P'ship v. Va. Elec. & Power Co., 251 Va. 215, 222-23, 468 S.E.2d 84, 88 (1996). The issue of whether a writing is ambiguous is a matter of law, not fact. Langman v. Alumni Ass'n of the Univ. of Va., 247 Va. 491, 498, 442 S.E.2d 669, 674 (1994).
An "[a]ccord and satisfaction is a method of discharging a contract or cause of action, whereby the parties agree to give and accept something in settlement of the claim or demand of the one against the other, and perform such agreement, the 'accord' being the agreement and the 'satisfaction' its execution or performance." Owen v. Wade, 185 Va. 118, 124, 37 S.E.2d 759, 762 (1946) (internal quotations omitted).
A special plea is a type of plea in bar. A plea in bar presents a distinct issue that, if proven, creates a bar to the plaintiff's right of recovery; the moving party has the burden of proof on that issue. Hilton v. Martin, 275 Va. 176, 177, 654 S.E.2d 572 (2008). The purpose of a plea in bar is "to narrow the litigation by resolving an issue that will determine whether a plaintiff may proceed to trial on a particular cause of action." Hawthorne v. VanMarter, 279 Va. 566, 578, 692 S.E.2d 226, 234 (2010). If there is a dispute as to the facts underlying a plea in bar, "a party may demand that a jury decide the disputed factual issues raised by the plea." Id. at 577, 692 S.E.2d at 233.
Discussion
The Court has considered the Jury Demand, Special Plea, related briefs, oral argument at the July 16, 2015, hearing, and applicable authorities. The Court now rules on the motions.
The following facts are undisputed. VWC and Roe entered into the Agreement, and there is no disagreement regarding the contents of the Agreement. VWC filed a third-party complaint, and subsequently an amended third-party complaint, against Roe seeking indemnity and/or contribution. The Complaint uses the pseudonym "Jane Doe" to refer to the Plaintiff, and the Amended Third-Party Complaint uses the pseudonym "Robert Roe" to refer to the Third-Party Defendant; neither pleading uses the Plaintiff's or the Third-Party Defendant's actual name.
In fact, all of the pleadings in the case use these pseudonyms instead of the real names of the parties.
A. There Are No Disputed Issues of Fact for a Jury to Resolve.
Juries act as fact finders. Forbes, 130 Va. at 260, 108 S.E. at 20. Once all disputed facts have been resolved, there is no right to or need for a jury. See Etheridge, 237 Va. at 96-97, 376 S.E.2d at 529. Rather, it is the province of the Court to apply the law to undisputed facts. Id. at 96, 376 S.E.2d at 529. For purposes of the motions currently before the Court, there are no disputed facts.
The parties agree they entered into the Agreement, and they agree as to the language that comprises the Agreement. The dispute relates to whether VWC violated the non-disparagement language of Paragraph 5 and whether the language of Paragraph 6 is a mutual release that applies to both VWC and Roe. More specifically, the issues are: (1) whether VWC's filing of the Amended Third-Party Complaint breaches the Agreement; (2) whether the Agreement releases VWC from future liability; and (3) if such a breach or release exists, whether that breach or release requires dismissal of the Amended Third-Party Complaint because the Agreement constitutes an accord and satisfaction that precludes such action. The Court does not find that these issues involve disputed factual issues, but rather that they involve issues of law for the Court to resolve by applying contract law to the Agreement's undisputed contractual language. Because there are no disputed facts, the Court does not find that the Jury Demand is appropriate.
The Court therefore DENIES the Jury Demand on the Special Plea.
B. The Agreement Does Not Prohibit VWC from Pursuing the Amended Third-Party Complaint.
As stated supra, the Court is tasked with resolving issues of law, and the Court applies the law to the undisputed facts in this case to render its ruling on the Special Plea. The Court finds that—upon consideration of the Agreement as a whole—the language in the Agreement does not bar VWC from pursuing its Amended Third-Party Complaint against Roe. The Court further finds that VWC's Amended Third-Party Complaint does not violate the terms of the Agreement.
As an initial matter, the Court does not find that the language of the Agreement is ambiguous. It therefore is within the province of the Court to interpret the provisions in the Agreement. Online Res. Corp., 285 Va. at 54, 736 S.E.2d at 894. The two provisions that are at issue are Paragraphs 5 and 6 of the Agreement.
1. The Non-Disparagement Clause Does Not Prohibit VWC from Pursuing the Amended Third-Party Complaint.
Paragraph 5 of the Agreement includes non-disparagement language. (Agreement ¶ 5). Specifically, it states:
See supra note 2.
The Parties agree that they will not (nor encourage others to), in any way, defame, disparage, impugn, or do or say anything at any time which could reasonably be interpreted as intended to harm the personal, business, or other interests of either of the parties, and in the case of [VWC], any of its trustees, officers, employees, or students.(Id.).
The parties stipulated at the July 16, 2015, hearing that the contents of a pleading could be interpreted as intended to harm one of the parties to the Agreement, but they disagreed regarding whether VWC's filing of the Amended Third-Party Complaint constituted an act intended to harm the actual Robert Roe. As stated supra, the Court is tasked with determining whether the non-disparagement language in Paragraph 5 precludes VWC from pursuing the Amended Third-Party Complaint. The Court finds as a matter of law that it does not.
In making its determination, the Court considers both VWC's use of a pseudonym for Roe—in the context of a cause of action in which the Plaintiff also is referred to by a pseudonym—and the indemnification and/or contribution nature of the Amended Third-Party Complaint. (See generally Am. Third-Party Compl.). The Court also considers that, in the Amended Third-Part Complaint, VWC does not suggest that Roe committed the acts Doe alleges; VWC instead argues that if a factfinder were to find that Roe committed the alleged acts, then VWC is entitled to indemnification and/or contribution from Roe. (Id. ¶¶ 5-8). The Court does not find that those allegations by VWC—in light of the Amended Third-Amended Complaint as a whole and viewed in the context of a case in which both the Plaintiff and Third-Party Defendant are referred to only by pseudonyms—"could reasonably be interpreted as intended to harm" the actual Third-Party Defendant, known in this case as Robert Roe.
The Court concludes that, by using the pseudonym "Robert Roe," VWC effectively has shielded Roe's real name from the public, thereby precluding any perception by the public that VWC's filing of the Amended Third-Party Complaint was intended to harm the interests of the actual Third-Party Defendant, i.e., one of the parties to the Agreement. A stronger argument supporting a violation of Paragraph 5 would exist if Roe's actual name had been used, but that issue is not presently before the Court, and, as such, the Court does not address it.
By their very nature, non-disparagement clauses target the negative inference the public may draw regarding the party or parties protected by those clauses. Under the doctrine of ejusdem generis, the Court restricts its interpretation of the general descriptor "do or say anything at any time which could reasonably be interpreted as intended to harm the personal, business, or other interests of either of the parties" to the same class as that of the specific descriptors "defame, disparage, or impugn," i.e., acts that could result in a negative perception by the public. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 199-213 (2012). Here, the inability of the public to impute any negative inference to the actual Roe—based on reference to both him and the alleged victim, the actual Doe, via pseudonyms—belies any argument that VWC intended to harm the interests of the actual Roe.
The Court further interprets the Amended Third-Party Complaint as a defensive response to Doe's Complaint and not some offensive litigation measure intended by VWC to harm Roe. The Court is not aware of any allegations that VWC encouraged Doe to initiate her litigation, and VWC's Amended Third-Party Complaint is conditioned on the factfinder's determination that Roe committed the alleged acts. VWC makes no independent assertions or suggestions that Doe's allegations are meritorious, nor does VWC introduce any allegations not already asserted in the Complaint. A stronger argument supporting a violation of Paragraph 5 would exist if VWC had asserted that Roe committed the alleged acts, but, once again, this issue is not presently before the Court to resolve.
Of note, VWC seeks compensatory damages but not punitive damages. (See Am. Third-Party Compl. ¶ 8). VWC takes the position that by doing so, its position that the Third-Party Complaint is not meant to harm Roe is bolstered. (Resp. ¶¶ 14-15). The Court does not find this argument—on its own—compelling in light of Doe's allegations of negligence, gross negligence and fraud, but rather views it in light of the other facts showcased in this Opinion.
Even assuming, arguendo, that the Court held that the Amended Third-Party Complaint could reasonably be interpreted as intended to harm Roe, dismissal of the current action would not be appropriate; rather, a more appropriate remedy for Roe would be a cause of action against VWC for breach of the Agreement. See, e.g., Sunrise Continuing Care, LLC v. Wright, 277 Va. 148, 156, 671 S.E.2d 132, 136 (2009) ("'As a general rule, damages for breach of contracts are limited to the pecuniary loss sustained.'" (quoting Kamlar Corp. v. Haley, 224 Va. 699, 705, 299 S.E.2d 514, 517 (1983))). For these reasons, the Court concludes that Paragraph 5 of the Agreement does not preclude VWC from pursuing the Amended Third-Party Complaint—as drafted—against Roe.
2. The Release Language Does Not Prohibit VWC from Pursuing the Amended Third-Party Complaint.
As an initial matter, Roe's apparent reliance on the recitation of intent is misplaced. (Special Plea ¶ 4). "Under settled rules of construction, if the prefatory or recital language conflicts with the obligatory provisions of the contract, then the obligatory provisions must prevail." United Va. Bank/National v. Best, 223 Va. 112, 115, 286 S.E.2d 221, 223 (1982). The Court therefore looks to the specific, obligatory release provision in the Agreement.
The Court assumes without deciding that the recitation of intent can be interpreted to include release language, as VWC implies. (Resp. ¶ 8).
Paragraph 6 of the Agreement includes release-from-liability language. (Agreement ¶ 6). The paragraph reads, in pertinent part:
Roe, for himself, his heirs, agents, and assigns, hereby releases [VWC] and its trustees, officers, employees, students, agents, and all of their respective successors, heirs, and assigns, of and from any cause of action, suit, promise, damage, and claim or demand of every kind or character whatsoever, whether presently known or unknown, suspected or unsuspected, under state or federal laws, in existence as of the date of the execution of this agreement by Roe, based on or related to the Incident and/or the administrative proceeding that followed.Id.
Virginia law requires courts to interpret contract language strictly, according to its plain meaning, when it is clear and unambiguous. See Floyd, 261 Va. 190, 192, 539 S.E.2d 735, 736 (2001). In interpreting contracts, "courts are bound to say that the parties intended what the written instrument plainly declares." W. F. Magann Corp. v. Virginia-Carolina Elec. Works, Inc., 203 Va. 259, 264, 123 S.E.2d 377, 381 (1962). The Court—strictly interpreting the Agreement's plain language—finds that Paragraph 6 is a one-way release of liability in favor of VWC. The contractual language expressly states that "Roe, for himself, his heirs, agents, and assigns, hereby releases [VWC]" and related entities from liability, but there is no corresponding language by which VWC releases Roe. (Id. (emphasis added)). The Court finds as a matter of law that the contract language is not a mutual release and therefore does not release Roe from liability. The Court therefore finds that there was no violation of the release clause here because the release favors VWC only; simply stated, there was no release clause for VWC to violate.
There is also no corresponding release provision in the Agreement in favor of Roe.
The Court further finds that, in light of the Agreement's inclusion of a mutual non-disparagement clause and a release favoring only VWC, the parties intended not to release Roe from liability and to allow VWC the opportunity to pursue, inter alia, certain causes of action and suits. For these reasons, the Court concludes that Paragraph 6 of the Agreement does not preclude VWC from pursuing the Amended Third-Party Complaint—as drafted—against Roe.
3. The Agreement Is Not an Accord and Satisfaction.
Taking all of the aforementioned facts into consideration, the Court finds as a matter of law that the Agreement is not an accord and satisfaction that bars VWC from pursuing its Amended Third-Party Complaint. As indicated, an accord and satisfaction "is a method of discharging a contract or cause of action, whereby the parties agree to give and accept something in settlement of the claim or demand of the one against the other." Wade, 185 Va. at 124, 37 S.E.2d at 762.
With respect to the alleged violation of the Agreement's non-disparagement clause, the Court notes that Roe did not cite and the Court is not aware of any Virginia case law to support Roe's claim that a violation of a non-disparagement clause—which the Court did not find here—would preclude VWC, under a theory of accord and satisfaction, from pursuing the Amended Third-Party Complaint. The Court therefore does not find that Roe is precluded from pursuing his Amended Third-Party Complaint based on any violation of the non-disparagement language in the Agreement.
As discussed supra, the Agreement does not include mutual release language or release language favoring Roe. Although the Agreement might constitute an accord and satisfaction that would preclude Roe from filing an action against VWC, there is nothing in the Agreement that precludes VWC from pursuing an action against Roe. In light of the fact that there is a mutual non-disparagement clause and a release provision that favors only VWC, the Court's interpretation of the language is that the parties to the Agreement intended to preserve VWC's right to pursue a cause of action against Roe. The parties could have included mutual release language or a separate provision to release Roe, but they elected not to do so. Absent such a release, the Court does not construe the Agreement as an accord and satisfaction that bars VWC from pursuing its Amended Third-Party Complaint.
The issue of whether the Agreement is an accord and satisfaction that would prevent Roe from pursuing an action against VWC is not before the Court. The Court therefore does not evaluate the merit of such an argument.
Of note, the Agreement included an integration clause, so any enforceable release of Roe would have had to appear within the four corners of the Agreement. --------
For these reasons, the Court does not find that the Agreement—specifically Paragraphs 5 and 6—expressly precludes VWC from pursuing its Amended Third-Party Complaint against Roe, nor does it consider the Agreement to be an accord and satisfaction that precludes VWC from pursuing its Amended Third-Party Complaint against Roe.
The Court therefore DENIES the Special Plea.
Conclusion
For the reasons articulated herein, a jury trial is not appropriate to resolve the Special Plea because there are no disputed facts, and Roe has not met his burden of showing that there has been an accord and satisfaction of the claims asserted in VWC's Amended Third-Party Complaint. The Court DENIES the Jury Demand and DENIES the Special Plea. Any objections to this ruling shall be submitted to the Court within fourteen days. The Court directs counsel for VWC to prepare and circulate an Order consistent with the ruling in this Opinion and submit it to the Court for entry within fourteen days.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/jle