Legal Question in Civil Litigation in Virginia

Use of Demurrer in Virginia Courts

Since a demurrer admits all material and relevant facts as alleged in the pleading it responds to, and is generally considered a motion to dismiss, I am interested in the effect to the adverse party if it is granted or denied.

Scenario: Plaintiff files a motion for judgment with several allegations; defendant files a demurrer, but does not specifically move for dismissal in the pleading, and; defendant files a grounds of defense that does include a motion for dismissal.

Questions:

If a demurrer is filed simultaneously with a grounds for defense in response to a motion for judgment and is denied by the court, does the admission of all material facts as alleged still stand throughout the case?

Also, if it is denied wouldn't that pretty much seal the case for the plaintiff, and only leave litigation over the amount and type of damages?

Similarly, if the demurrer to a motion for judgment makes NO mention of a motion to dismiss, does the court simply assume that motion is made by the pleading?

Do Virginia courts seem to have a standard inclination one way or the other toward a demurrer?

Thanks


Asked on 8/27/99, 11:40 am

1 Answer from Attorneys

Daniel Press Chung & Press, P.C.

Re: Use of Demurrer in Virginia Courts

"Questions: If a demurrer is filed simultaneously with a grounds for defense in response to a motion for judgment and is denied by the court, does the admission of all material facts as alleged still stand throughout the case?"

No. The demurrer only admits the facts for purposes of hearing the demurrer: in other words, it determines if the pleading is sufficient to state a cause of action. If not, the demurrer is sustained, and the Plaintiff (usually) is given leave to amend if the court thinks that the defect could be technical, rather than there really being no possible cause of action. If the demurrer is overruled, it means that the Motion for Judgment does state a legally-sufficient claim that if proven (and absent affirmative defenses) will entitle the plaintiff to relief. But the case still has to be proven. If a demurrer is overruled, the Defendant will be given an opportunity to file another responsive pleading.

"Also, if it is denied wouldn't that pretty much seal the case for the plaintiff, and only leave litigation over the amount and type of damages?"

No. Because it admits nothing.

"Similarly, if the demurrer to a motion for judgment makes NO mention of a motion to dismiss, does the court simply assume that motion is made by the pleading?"

A demurrer is not a motion. It is a pleading, and by its existence it requests certain relief (i.e., dismissal). In fact, Motions to Dismiss generally do not exist in Virginia practice -- they are usually called something else.

"Do Virginia courts seem to have a standard inclination one way or the other toward a demurrer?"

I don't know what you mean. If the pleading states a cause of action, a demurrer will be overruled. If it does not, it will be sustained. The only time where the court's "inclination" (discretion) comes into play is in deciding whether to allow leave to amend.

I hope you are doing this for acadamic interest, and not because you are trying to handle a circuit case pro se. Virginia Circuit Courts are no place for lay-persons. They are designed for lawyers, and the pleading rules are very technical. If you have a case in circuit court, get a lawyer.

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Answered on 8/27/99, 10:30 pm


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