Petition for Writ of Certiorari — Glover v. McDonnell Douglas Corp.

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FILE?Pr

\\) 981515 MAR 241994

No.

el alc cll

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1993

DoROTHY E. MEGGERS, JAMES C. EwIn, and

Dorotuy &. Ewin,

Petitioners,

ExxON COMPANY U.S.A., WILLIAM A. PERDUE,

CHEL GOLANSKY, and MARK JI. HOLLAND,

Respondents.

Petition For A Writ Of Certiorari To

The Supreme Court Of Virginia

PETITION FOR A WRIT OF CERTIORARI

*BRADLEY G. MCDONALD

JOHN F. KARL, JR.

McDONALD & KARL

2100 Pennsylvania Ave., N.W.

Suite 675

Washington, D.C. 20037-3202

(202) 293-3200

WILLIAM B. MOORE

SCHWARZ, ELLIS & MOORE

4950 North Fairfax Drive

Arlington, Virginia 22213

(703) 532-9300

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208

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QUESTIONS PRESENTED FOR REVIEW

This petition raises the issue of the

constitutionality of a state statute,

Virginia Code § 8.01-230, which provides

in cases of damage to property that the

limitations period begins to run when

"breach of duty occurs" and not when the

right of action accrues. The Virginia

courts held that this statute time-barred

petitioners' common law nuisance and

trespass claims for damages for

underground gasoline contamination prior

to the date petitioners were even damaged

and prior to the existence of any Virginia

common law cause of action.

1. Whether Virginia Code § 8.01-230

as applied to petitioners' claims of

common law nuisance and trespass

constitutes a taking of private property

without compensation and for private use

in violation of the due process clause of

the Fourteenth Amendment of the United

States Constitution, in that petitioners

received no compensation for property

Nene aemte’ ) BI Veen he nal

rights transferred to Exxon without their

knowledge or consent.

2. Whether Virginia Code § 8.01-230,

which bars the landowners' current and

future claims for trespass and nuisance,

violates due process rights guaranteed by

the Fourteenth Amendment of the United

States Constitution by depriving

landowners of protected property

interests, where the statute of

limitations expired before such claims

accrued and failed to provide a reasonably

adequate period of time for filing suit,

and where, as here, no legitimate state

objective is implicated for protecting

tortfeasors who conceal discharge of

gasoline.

3. Whether the Virginia statute of

limitations, as applied to petitioners'

iii

Claims of trespass and nuisance, violates

petitioners' right to equal protection of

the law provided by the Fourteenth

Amendment of the Uunited States

Constitution.

Questions Presented For Review

Table Of Contents ......

Table Of Authorities

Decisions Below ......

Statement Of The Grounds On

Which Jurisdiction Of

This Court Is Invoked .

Constitutional Provisions And

Statutes Involved ..

Statement Of The Case

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TABLE OF AUTHORITIES

Page

CASES

952 F.2d 1215 (10th Cir. 1991) . 36

, 488 U.S. 336

f Btre a er

American Locomotive Co. v. Hoffman j ,

Tete & & > Sara

tcha a Vv

F. B. Williams Cypress Co.,

Tee SS - a 7

Bell v. Burson, 402 U.S. 535 (1971) . 39

v. Clark, 176 S.E.2d 323

(Ves Sea te tl fe CSD

oard e Vv :

Tere 2. rie |

in = j &

vi ill,

281 U.S. 673 (1930) ain wg « oe

City of Cleburne v. Cleburne Living

Center, 473 U.S. 432 (1985) 40, 41

City of Virginia Beach v. Murphy,

389 S.E.2d 462 (Va. 1990) ... 27

vii

1, Hernandez y Morales

S36 G.8. 339 (3933) « « «eee 3

, 385 S.E.2d 865

(1989) . . . . o . . . . . . . . 34

272 U.S. 365 (1926) ae -#) @ 33

Buws .. g SSS Ge CSe. 2096

(1993) >. >. >. + o * e > 7 * > . * 43

Fuentes v. Shevin, 407 U.S. 67

th 6l6 6 0.8 e060 «ve

G.L. Webster Co. v. Steelman,

1 8.8.26 308 (Va. 1939) ...-- 2

, 290 U.S. 326

Df ss Siglig wie eee « « F9

McDonnell, 360 S.E.2d 841

WEEE cages ee eee « « 8

wn j ion

Inc. v. Berg, 348 S.E.2d 252

OS Se ee

Harper v. Virginia State Board of

Elections, 383 U.S. 663 (1966) . 41

WwW ’

vv 2 Ye 0) ae |

awkins v. Barney‘ essee,

S Pet. 657, (1831) . +--+ -« © © © Fi

viii

Hea YY, : ebuck ~~

464 A.2d 288

(N.H. 1983) oeee e « 26, 33, 44

aise av j s,

er ae ec | a |

Keller v. Denny, 352 S.E.2d 327

St Saree eee |

ocke v S- vi .s

275 S.E.2d 900 (Va. 1981) << oe 17

Vv j a 7"

, 455 U.S. 422 (1982) .. 21, 39, 43

Loretto v. Teleprompter

Manhattan CATC Corp.,

S50 Gsbs Ghe fapees « « « « 139, 20

Marsha Vv ird, 334 S.E.2da 573

(Va. 1985) . - = .* . 7 > . * . . 17

Martinez v. California, 444 U.S. 277

(1980) = - * — a . +. _ * >. o . * 22

McDonald v. Board of Election,

394 U.S. 802 (1969) a i ae a ee

Memphis Light, Gas & Water Div.

v. Craft, 436 U.S. 1 (1978) .. 38

Mennonite Board of Missions v. ae

462 U.S. 791 (1983) ... 38

470 U.S. 869 (1985) ....-. 42

Page

Ve: ’

466 0.8. 91 (1962) .-.- 16, 25,

Vv.

Nebraska, 164 U.S. 403

3) |) ae ae er a a ee en ee | 7

Moore v. City of East Cleveland,

431 U.S. 494 (1977) ..

Mullane v. Centra anover Bank

& Trust Co., 339 U.S 306

(1950) - . . 7. s * =: *

New Orleans v. Dukes, 427 U.S. 297

(1976) . «© «© « e ar ae

Newport News v. Hetzler,

221 S.E.2da 150 (Va. 1976)

Nordlinger v. Hahn, u.8. :

112 S. Ct. 2326 (1992) .

Raymond Motor Transp., Inc. v. Rice,

434 U.S. 429 (1978) . ;

Schweiker v. Wilson, 450 U.S. 221

(1981) eS Sea ee ce a

Terry v. Anderson, 95 U.S. 628

(1877) . + 7 . . . * s . . . oP

Texaco nc. v. Short,

454 U.S. 516 (1982). A7e B29 Oty

Tulsa ssiona ollection

Services, Inc.v. Pope,

485 U.S. 478 (1988). 16, 25, 40,

Page

’

328 U.S. 256 (1946) ~...--.+-.- 20

United States v. Locke, 471 U.S. 84

(1985) > > > >. * > >. > >. > . . . 32

Wils Vv ,

Tg mh ye lt ee

Zobel v. Williams,

457 U.S. 55 (1982) ...- 17, 33, 42

0 Vv ONS

Constitution of the United States,

Fourteenth Amendment,

Gestion Gf wc cece ew eel sl CUS

STATUTES

U.S.C. 6 26°1287 « ee ee eevee ee

42 U.S.C. 699 . « © 6.4 6-6 © 5 @ « 34

Virginia Code 8.01-230 ... . passim

Virginia Code S.028°833. «- «eevee

Virginia Code 8.01-243 .... 11, 12

Virginia Code 8.01-243(B) ....+.++ 4

wo FA DD DF VM

Virginia Code

$.01-245(C) . .--. + 4

Virginia Code § 8.01-249 .

Virginia Code § 8.01-250

Virginia Code § 62.1-44.34:9 (9)

(1993 Pocket Parts) :

REGULATIONS

40 C.F.R. Parts 280, 281 (1993)

LEGISLATIVE HISTORY

Revisers' Note in Va. Code Ann.

§ 8.01-230 (1992 Repl.)

SUPREME COURT OF THE UNITED STATES

October Term 1993

No.

DOROTHY E. MEGGERS, JAMES C. EWIN, and

DOROTHY C. EWIN,

PETITIONERS,

Vv.

EXXON COMPANY U.S.A., WILLIAM A. PERDUE,

CHEL GOLANSKY, and MARK I. HOLLAND,

RESPONDENTS.

Petition For A Writ Of Certiorari To

The Supreme Court Of Virginia

Petitioners Dorothy E. Meggers, James

Cc. Ewin, and Dorothy C. Ewin pray that a

Writ of Certiorari issue to review the

judgment of the Supreme Court of Virginia,

entered on January 7, 1994, denying

reconsideration of the Court's Order

denying review issued on November 3, 1993.

DECISIONS BELOW

The Supreme Court of Virginia denied

Petition for Appeal on November 3, 1993.

This Order is unreported and is reprinted

in Appendix A hereto at la.

The Supreme Court of Virginia denied

the Petition for Rehearing on January 7,

1994. This Order is unreported and is

reprinted in Appendix B hereto at 2a.

The Circuit Court of Arlington

County, Virginia, entered Final Order of

Dismissal with prejudice on April 30,

1993. This Order is unreported and is

reprinted in Appendix C hereto at 3a.

The Circuit Court of Arlington

County, Virginia, entered an Order denying

Petitioners' Motions for Reconsideration

on May 21, 1993.. This Order is unreported

and is reprinted in Appendix D hereto at

7a.

STATEMENT OF THE GROUNDS ON WHICH

THE JURISDICTION OF THE COURT IS INVOKED

The judgment sought to be reviewed

was initially entered on November 3, 1993,

by the Supreme Court of Virginia. The

denial of request for a rehearing was

entered January 7, 1994. The statutory

provision conferring jurisdiction on this

Court to review the judgment by Writ of

Certiorari is U.S.C. § 28-1257.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

United States Constitution,

Fourteenth Amendment, Section 1, second

sentence:

No State shall make

or enforce any law which

shall abridge the

privileges or immunities

of citizens of the United

States; nor shall any

State deprive any person

of life, liberty, or

property, without due

process of law; nor deny

to any person within its

jurisdiction the equal

protection of the laws.

Virginia Code § 8.01-230 provides:

In every action for

which a limitation period

is prescribed, the cause

of action shall be deemed

to accrue _and the

prescribed limitation

period shall begin to run

from the date the injury

is sustained in the case

of injury to the person,

contract or duty occurs

in the case of damage to

property and not when the

resulting damage is

discovered, except where

the relief sought is

solely equitable or where

otherwise provided under

§ 8.01-233, subsection C

of § 8.01-245, §§ 8.01-

249, 8.01-250 or other

statute.

(Emphasis added.)

Virginia Code § 8.01-243(B)

provides:

to property,

including actions by a

parent or guardian of an

infant against a tort-

feasor for expenses of

curing or attempting to

cure such infant from the

result of a personal

injury or loss of

services to such infant,

shall be brought within

five years after the

cause of action accrues.

(Emphasis added.)

STATEMENT OF THE CASE

Under Virginia law, a statute of

limitations does not begin to run until a

right of action accrues, and damages or

injury is an essential element of a right

of action in trespass or nuisance.

Effective October i. 1977, the

Virginia legislature recodified the state

statutes dealing with procedure in the

Virginia courts and, in the process,

amended the provision governing the

accrual of causes of action. Section

8.01-230 was changed to provide that in

cases involving damage to property the

statute of limitations can expire before

there is any injury giving rise to a right

of action.

On March 15, 1991, petitioners

Dorothy Ewin Meggers, James L. Ewin, and

their ninety-three year old wmother,

Dorothy C. Ewin, filed suit in the Circuit

Court of Arlington County, Virginia,

against Exxon Company U.S.A. and other

former owners and operators of an Exxon

retail gasoline station located uphill

from commercial property owned by the Ewin

family at 3435 North Washington Boulevard

in Arlington.

The lawsuit sought monetary damages

and injunctive relief under the common law

of Virginia for trespass and nuisance

resulting from the discovery in June 1990

of 5.5 inches of free-floating gasoline in

the groundwater under the Ewin property

and, thereafter, the discovery of

substantial additional free-floating

underground gasoline contamination located

upgrade from the Ewin property which had

not yet entered the property.’

Since 1964, the Ewin family had

operated an automobile radiator and air

conditioning repair business. Pursuant to

a June 1990 lease and sale agreement, the

family moved its business to Falls Church,

Virginia. In September 1990, the lease

and sale agreement was cancelled as a

result of the discovery of the previously

unknown gasoline contamination. The Ewin

family was unable, because of the presence

of the gasoline, to find a new tenant

until June 1992, and then only at a

significantly reduced rental.

. Petitioners also raised state

law claims of negligence and statutory

torts which are not at issue here.

The Ewins' expert witnesses

identified with reasonable’ scientific

certainty the source of the underground

gasoline contamination as five leaking

3000-gallon underground gasoline storage

tanks located on the Exxon gasoline

station property, which were 33 years old

when they were removed by Exxon in

November 1986.’

Defendant Exxon, with full knowledge

of the easterly downhill movement of its

underground gasoline, decided in 1987 not

to undertake any remedial recovery or

clean up. Instead, Exxon affirmatively

acted to conceal from Virginia officials

. Prior to Ewin family ownership

in 1964, the property was operated briefly

as a retail gasoline station. Although

Exxon argued throughout that the gasoline

contamination could have originated from

other sources, the extensive discovery

produced no other credible explanation for

the 5.5 inches of free-floating gasoline

found on the Ewin property in 1990.

LL <<< enn

and downhill property owners, including

the Ewin family, the environmental

injuries Exxon had set in motion.’

The Ewin family obtained evidence

during the Arlington County proceedings

that the five dangerous and defective

Exxon underground gasoline storage tanks

had discharged thousands of gallons of

gasoline into the groundwater under the

Exxon station from 1977 through November

’ In February 1992, the Virginia

Department of Environmental Quality also

determined that Exxon was the source of

the underground gasoline. Despite

repeated directives to Exxon to remediate

its contamination, Exxon has failed to do

so. Of course, mere clean up of the

contamination will not make petitioners

whole.

1986.‘ Petitioners learned during

discovery that land and_ groundwater

upgrade from their property currently

contain gasoline contamination from the

former Exxon property which continues to

flow downhill onto petitioners' property.

Each day some of the gasoline enters the

Ewin family property for the first time as

part of the groundwater movement. The

ongoing gasoline contamination will

continue in the future to damage

petitioners' property.

: Humble Oil and Refining Company,

Exxon Company U.S.A.'sS predecessor,

purchased the land at 3444 North

Washington Boulevard in 1969. Exxon, as

owner, used the property continuously as a

retail gasoline station, leasing it to

William A. Perdue. Mr. Perdue purchased

the gasoline station from Exxon in

December 1986.

Judge Paul F. Sheridan supervised

pretrial proceedings in the Arlington

County Circuit Court. Judge Sheridan

denied Exxon's Demurrer and Exxon's Plea

in Bar with respect to petitioners' claims

of trespass and nuisance on December 10,

1992; he set the case for trial on March

9, 1993.

On March 9, 1993, the day set for the

jury trial, Judge Benjamin’ Kendrick,

without prior notice to petitioners of his

intention to revisit Judge Sheridan's

rulings, orally dismissed all petitioners’

claims on the ground that they were time

barred by the five-year limitation period

of Virginia Code § 8.01-243. Judge

Kendrick stated:

THE COURT: Wer ae You

can call it trespass.

You can call it anything

you want. This started

in 1977. You've got a

serious problem, counsel,

and it's a harsh result.

There is no question

about it. That's the

state of the law. I

don't know how you are

going to get around it.

Transcript of March 9, 1993, Hearing at

iS.

Judge Kendrick continued: "Your

cause of action started before the gas

even got to your property. That's how

harsh that rule is." Transcript of March

9, 1993, Hearing at 16.

Petitioners filed motions for

reconsideration on April 9, 1993. They

were heard on April 30, 1993, and Judge

Kendrick orally denied petitioners'

motions for reconsideration.

Judge Kendrick held that Virginia

Code §§ 8.01-230 and 8.01-243 rendered all

of petitioners' claims time barred because

the five-year period for petitioners’

Claims began to run in 1977, the date of

rae

the first documented discharge of gasoline

from the. Exxon property, prior to any

entry of gasoline onto. petitioners’

property.

Cc.

The issues of denial of due process

and equal protection under the Fourteenth

Amendment of the Constitution of the

United States were raised before Judge

Kendrick on March 9, 1993, and again on

April 30, 1993.° Counsel for petitioners

requested the trial court, on April 30,

1993, to sign an order of dismissal which

specifically incorporated reference to the

; Petitioners also raised before

Judge Sheridan the issue whether Virginia

Code § 8.01-230 violated the due process

and equal protection clauses of the United

States Constitution in response to a

motion for partial summary judgment, but

the issue was not ruled upon because Judge

Sheridan denied Exxon's motions on other

grounds.

due process and equal protection claims.

The trial court refused to do so stating:

THE COURT: That

might be the only way

you're going to get

relief from the obvious

harshness of that statute

and the ruling of this

Court. But I'm signing

[Exxon counsel's] order.

Transcript of April 30, 1993, Hearing at

i2.

On May 21, 1993, Judge Kendrick

entered his written final Order denying

petitioners' motions for reconsideration.

On May 25, 1993, petitioners timely filed

their Notice of Appeal to the Virginia

Supreme Court.

In their Petition for Appeal to the

Virginia Supreme Court, petitioners

squarely addressed their federal

constitutional claims, along with numerous

state law claims. The petition was timely

filed on July 20, 1993.° In an Order

issued om November 3, 1993, the Virginia

Supreme Court completely denied review of

Judge Kendrick's brief orders, stating

only "(t]he Court is of the opinion there

is no reversible error in the judgment."

On November 17, 1993, petitioners timely

filed a Petition for Rehearing, which also

raised their constitutional arguments. On

: Question 5 of the Petition for

Appeal states:

The trial court erred in

interpreting Virginia

Code § 8.01-230 as

barring plaintiffs'

claims before any damage

had occurred, thereby

denying plaintiffs any

remedy against

defendants' unlawful

taking of private

property and, thus,

violating plaintiffs'

rights under the due

process and equal

protection clauses of the

Constitutions of the

Commonwealth of Virginia

and the United States of

America.

January 7, 1994, the Virginia Supreme

Court denied the Petition for Rehearing.

ARGUMENT

The Petition for Certiorari should be

granted because the Virginia court of last

resort has decided an important question

of federal law which has not been, but

should be, settled by this Court. See

sa siona ection Services

Inc. v. Pope, 485 U.S. 478 (1988) and

Mills v. Habluetzel, 456 U.S. 91 (1982).

Virginia Code § 8.01-230 violates the due

process clause of the United States

Constitution by depriving petitioners of

property without compensation or due

process of law and without a full and fair

opportunity to protect their property

rights, in violation of Missouri Pacific

Co. Vv. raska, 164 U.S. 403, 417

(1896). Virginia Code § 8.01-230 is

inconsistent with well settled

constitutional principles that apply to

statutes of limitations. E.g., Terry v.

Anderson, 95 U.S. 628, 632-633 (1877),

cited in Texaco, Inc. v. Short, 454 U.S.

516, 527 n.21 (1982). In addition, the

statute denies petitioners equal

protection of the law, contrary to the

teachings of Zobel v. Williams, 457 U.S.

55 (1982).

Under Virginia law, it has been well

settled that a statute of limitations does

not begin to run until a right of action

accrues, and damage or injury is an

essential element of a right of action in

tort or nuisance. Marshall v. Bird, 334

S.E.2a 573, 575 (Va. 1985); Locke v.

Johns-Manville Corp., 275 S.E.2d 900, 904

(Va. 1981).

Whether petitioners possessed any

property rights of which they could be

deprived is determined by Virginia law.

Board of Regents v. Roth, 408 U.S. 464,

577 (1972). Under Virginia law,

petitioners, who own real estate on

Washington Boulevard in fee simple, have a

protectable property interest as a result

of that ownership. The effect of the

Virginia courts' interpretation of the

statute in petitioners' case is to

transfer to the owners of upgrade property

a permanent easement to spill gasoline

which will continue to_- contaminate

petitioners’ land. Petitioners' property

rights are now encumbered by the right of

respondents to pollute.

The landowners' right to exclude has

traditionally been considered "one of the

most essential sticks in the bundle of

rights that are commonly characterized as

Liiasaceceemicmaencemnieanemniaieiattanaiiitniiicaiiaiiiiiiiiiiaiaiiil

property." Loretto v. Teleprompter

Manhattan CATC Corp., 458 U.S. 419, 433

(1982), citing Kaiser Aetna v. United

States, 444 U.S. 164, 176 (1979) (physical

occupation of property is a taking). As

there has been an actual physical invasion

of petitioners' property in the nature of

an easement, petitioners are the victims

of a diminution of property rights and an

illegal "taking" of property for private

use of another, i.e., the owners of the

Exxon property. Loretto, 458 U.S. at 441.

It is well settled that taking

property from one individual for the

private use of another individual violates

due process. Missouri Pacific Ry. Co. v.

Nebraska, 164 U.S at 417 (citation

omitted). It is similarly undisputed that

Virginia could not directly take that

property interest from petitioners for

public benefit without paying any

compensation. Loretto, 458 U.S. at 435.

While Virginia could not take an

easement in petitioners' land for itself

without compensating petitioners, United

States v. Causby, 328 U.S. 256, 261-262 ;

(1946) (a physical invasion of only an |

easement in property is a taking), by

means of the state statute of limitations

the Virginia legislature has conveyed to

the owners of the Exxon property such an

easement to discharge gasoline onto

petitioners’ property. Petitioners are

unable to recover for present and future

invasion of their property rights or to

require respondents to remove’ their

gasoline from petitioners' property.

"A purely private taking could not

withstand the scrutiny of the public use

requirement; it would serve no legitimate

purpose of government and would thus be

void." Hawaii Housing Authority v.

Midkiff, .467 U.S. 229, 245 (1984). A

statute which permits Virginia to do for

the benefit of respondents what it cannot

do for the public good of its own

citizens, take a property right in the

form of an easement from petitioners

without compensation, deprives petitioners

of their right to property in violation of

the Fourteenth Amendment of the

Constitution of the United States.

II.

Petitioners also possess property

interests protected by the Fourteenth

Amendment's Due Process clause in the form

of causes of action for nuisance and

trespass. Vv immerman Brush Co.,

455 U.S. 422, 428 (1982). This right of

property cannot be taken away from

petitioners without due process of law.

While Martinez v. California, 444 U.S. 277

(1980), holds generally that the action of

a legislature in fashioning its own tort

law would give all the process that is

due, nevertheless, the individual citizen

has a right to be protected from wholly

arbitrary or irrational state action. Id.

at 282. A statute that takes away a

valuable right without being related to

any legitimate government objective

violates the Fourteenth Amendment. As

interpreted by the Virginia courts and as

applied to petitioners, the statute in

question is wholly irrational and

arbitrary.

"Every government is under obligation

to its citizens to afford them all needful

remedies." Wilson v. Iseminger, 185 U.S.

55, 62 (1902). As Justice Brandeis

observed:

Whether acting through

its judiciary or through

its Legislature, a state

may not deprive a person

of all existing remedies

for the enforcement of a

right, which the _ state

has no power to destroy,

unless there is, or was,

afforded to him some real

opportunity to. protect

it.

Brinkerhoff-Faris Trust & Savings Co. v.

Hill, 281 U.S. 673, 682 (1930) (footnote

omitted). The Fourteenth Amendment

guarantees "the preservation of his

substantial right to redress by some

effective procedure." Gibbes Vv.

Zimmerman, 290 U.S. 326, 332 (1933).

Where a statute of limitations would

operate so as to bar all recovery without

any allowance of time for the commencement

thereof in futuro, it is usually deemed

unconstitutional in its operation on

vested rights. See Terry v. Anderson, 95

U.S. at 632-633.

Statutes of limitations are valid

exercises of state power. The Court has

held that statutes of limitations are

proper only when the injured party has

adequate time for assertion of his rights.

Vv . Williams

Cypress Co., 258 U.S. 190 (1922).

However, to be constitutional, the statute

of limitation must provide a reasonable

time for the commencement of an action.

Terry v. Anderson, 95 U.S. at 632-633,

cited in Texaco v. Short, 454 U.S. at 527

n.21.’

The Virginia statute at issue

violates petitioners' right to due process

because Virginia law provides an

inadequate period of time for filing suit.

Where the statute was deemed to have run

even before any injury was caused to the

petitioners' property, petitioners

The Court raised the question of

a limitation period too short to be

constitutional in Tulsa Professional

Collection Services, Inc. v. Pope, 485

U.S. 478 (1988), but decided the case on

other grounds. See dissent of Chief

Justice Rehnquist, 485 U.S. at 494.

This Court noted in a challenge to a

Texas statute of limitation, the period

for asserting the right "must be

sufficiently long to permit [interested

persons] to bring an action." Mills _v.

Habluetzel, 456 U.S. at 97.

Appellant in Mills argued that the

statute in question deprived illegitimate

children of their right to support without

due process of law. The Court ruled on

equal protection grounds and did not reach

the due process argument.

effectively had no opportunity to file

suit, which is inadequate time as a matter

of constitutional law. See Heath v.

Sears, Roebuck & Co., 464 A.2d 288 (N.H.

1983).

Cc.

The Virginia court in this case, in

effect, holds that the Virginia

legislature redefined the elements of two

ancient and venerable causes of action

designed to protect property rights

through the device of recodifying a

statute of limitations. It holds that

petitioners had a cause of action and

should have filed their case before the

gasoline reached their property and

because they waited until their property

was injured, they filed too late.

Under Virginia law, the unauthorized

entry of gasoline contamination onto

petitioners' property without lawful

authority and the resultant injury or

damage to petitioners’ real property is a

trespass. Hampton Roads Sanitation Dist.

v. McDonnell, 360 S.E.2d 841 (Va. 1987)

(discharge of raw sewage onto plaintiff's

property by a public sewage authority is a

trespass). Here, the Virginia courts

ruled that the statute of limitations ran

before all of the elements of a

traditional trespass were established.

Under Virginia law, the presence of

gasoline contamination on petitioners’

property constitutes a classic case of

private nuisance, a threat to health and

safety, which unreasonably interferes with

the use and enjoyment of another's

property and causes serious economic

injury to petitioners’ ability to lease or

sell their property. City of Virginia

Beach v. Murphy, 389 S.E.2d 462, 463 (Va.

1990), citing Newport News v. Hetzler, 221

S.E.2d 146, 150 (Va. 1976).

The Virginia courts have defined

nuisance as a cause of action to protect

the use and enjoyment of property. An

essential element of the cause of action

has always been that the petitioner's use

and enjoyment of the property was impaired

and there could be no nuisance without

such impairment.

In an action to recover damages for a

private nuisance, once the plaintiff

proves the existence of the nuisance

causing injury to_ property, | ae |

immaterial whether the nuisance was

created negligently or not. Thus, a

breach of duty is irrelevant to a claim of

nuisance. E.g., G.-L. Webster Co. v.

Steelman, 1 S.E.2d 305, 311 (Va. 1939).

Under the traditional and

longstanding version of Virginia law,

petitioners' cause of action for nuisance

would not arise until it could be proven

that gasoline reached petitioners’

property and "the injury can be shown."

Id. at 314-315 (citation omitted); Blue

176 S.E.2d 323, 326 (Va. 1970). See also

American Locomotive Co. v. Hoffman, 61 S.E

759, 760 (Va. 1908) (cause of action for

nuisance does not arise from construction

of culverts and water gate on another's

land, but only when plaintiff is damaged

by water entering his land).

Here, the Virginia court ruled that

the statute of limitations ran before all

of the traditional elements of trespass

and nuisance were established.

Petitioners were thus deprived of

undiminished property rights and their

causes of action against respondents for

the loss of those property rights.

The statute, as applied to

petitioners, fails to meet the test of

being rationally related to a legitimate

state end. The Virginia legislature is

unlikely to have intended to change the

state's substantive law through its 1977

codification of Virginia's statute of

limitations. The Revisers' Note appended

to § 8.01-230 in the Code of Virginia

Annotated states:

Section 8.01-230

retains the traditional

rule of Virginia case law

that a cause of action

accrues when the wrongful

act or breach of duty or

contract occurs. In tort

cases this has generally

been construed to occur

when injury oor other

damage takes place

irrespective of when

discovered.

The Virginia Supreme Court has

interpreted the statute as creating a

distinct change in law for cases in which

no compensable injury to property occurs

until substantially after the breach of

duty, and has decreed that the statute of

limitations runs from the date of the

breach of duty, not from the date of the

later injury. Harbour Gate _ _Owners

Association, Inc. v. Berg, 348 S.E.2d 252

(Va. 1986).* The Virginia Supreme Court

has observed: "It seems unlikely that the

revisors intended the harsh result

dictated by its clear language." Id. at

258 n.3.

Justice Stephenson of the Virginia

Supreme Court stated in Keller v. Denny:

To the extent that Code

§ 8.01-230 bars a cause

of action before any

damage has occurred, its

. The statute as read literally

would create a cause of action after the

breach of duty but prior to the date any

injury was sustained.

application would deprive

a person of . property

without due process of

law in violation of the

Federal and Virginia

constitutions.

352 S.E.2d 327, 332 (1987) (emphasis in

original) (citations omitted)

(concurring).

Thus, no identifiable government

objective is furthered by the change in

§ 8.01-230, as the drafters of the 1977

revision did not consider the implications

of the change in language for nuisance and

trespass cases in which the duty might be

breached many years’ prior to the

occurrence of damages.

Virginia may not extinguish or limit

property rights in the absence of "a

reasonable restriction designed to further

legitimate legislative objectives."

United States v. Locke, 471 U.S. 84, 104

(1985). The statute, as applied to

petitioners, fails the test of being

rationally related to a _ legitimate

legislative objective.’ Zobel __iv.

Williams, 457 U.S. 55 (1982). There is no

rational basis for beginning the running

of the statute of limitations prior to the

existence of a cause of action for

nuisance or trespass. Heath v. Sears,

Roebuck & Co., 464 A.2d at 295. Since no

legitimate state objective exists, this

statute offends due process. Moore Vv.

veland, 431 U.S. 494, 520

(1977) (Stevens, J., concurring), citing

Euclid v. Ambly Realty Co., 272 U.S. 365

(1926).

As applied, Virginia Code § 8.01-230

is arbitrary and irrational. The statute

The failure of Exxon to advance

any plausible or legitimate reason for the

challenged distinction is sufficient to

permit its invalidation. See Raymond

Motor Transp., Inc. v. Rice, 434 U.S. 429

(1978) (commerce clause).

does not advance the legitimate objectives

of a statute of limitations. The trespass

and nuisance claims of the petitioners

were not stale. The gasoline to this day

continues to run downhill to petitioners’

property and into the Virginia

waterways.'°

Virginia has separately enacted

legislation it calls a statute of repose

designed to cut off all litigation after a

certain number of years against such

defendants as architects of buildings.

Va. Code § 8.01-250. Because Virginia

views its statute of repose as a narrowly

defined exception to the general

limitations law, nwealth v. Owens-

Corning Fiberglas Corp., 385 S.E.2d 865

as State and federal laws create a

duty to remedy the source of the

contamination. § 42 U.S.C. 699, et seg.,

and regulations promulgated thereunder, 40

C.F.R. Parts 280, 281 (1993); Virginia

Code § 62.1-44.34:9(9) (1993 Supp.).

(1989), the state's limitations statutes

as a whole cannot be read to provide that

the legislature also intended to establish

a date when downhill victims of gasoline

contamination might be barred from suit in

trespass or nuisance based on the date of

the first uphill spill.

Moreover, justifications underlying a

statute of repose do not apply here where

the gasoline contamination continues its

downhill trek to Virginia waterways.

Although statutes of repose have often

been upheld against constitutional

challenges, the courts have upheld such

statutes only when reasonable government

objectives have been articulated.” No

such objectives have been articulated

here.

Under well settled legal principles

from which Virginia should not be deemed

to depart unintentionally, no tort cause

of action accrues until the victim

actually suffers damages. There can be no

legitimate state objective for beginning

the running of the statute of limitations

in nuisance and trespass cases prior to

the existence of any injury. The

legislature itself has not articulated any

such end, and neither have the Virginia

courts in their several opinions

discussing the statute.

Statutes of repose have been

upheld principally in products liability

cases. See Alexander _v. Beech Aircraft

Corp., 952 F.2d 1215, 1224-1225 (10th Cir.

1991), and cases cited therein. We are

unaware of any case applying a statute of

repose to extinguish nuisance or trespass

claims.

Finally, no Virginia legitimate state

goals are advanced by the statute of

limitations as applied to petitioners’

situation. Such a provision favors only

tortfeasors who discharge gasoline

contamination.

This Court has upheld the power of a

state to permit unused or abandoned

interests in property to revert to another

after the passage of time or to condition

retention of property rights on the

performance of reasonable conditions.

Texaco, Inc. v. Short, 454 U.S. at 526

(legitimate state policies of encouraging

development of potential mineral

interests), citing Hawkins v. Barney's

Lessee, 5 Pet. 457, 466 (1831) (landowner

was not vigilant in asserting his rights).

The Court has never permitted abridgement

of substantial property rights against a

party vigilant in asserting his rights

when the violation of the right continued

even to the time of trial.

Iit.

The Due Process Clause of the

Constitution of the United States provides

that the state may not deprive a person of

a property interest without providing

notice and an opportunity for a hearing.

Mullane _v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 313 (1950); Mennonite

Board of Missions v. Adams, 462 U.S. 791

(1983); j W iv. Vv

Craft, 436 U.S. 1 (1978) (notice of

dispute resolution mechanism and

opportunity to be heard is required before

service may be terminated by a public

utility for failure to tender payment

due); Fuentes _v. Shevin, 407 U.S. 67

(1972) (notice and an opportunity to be

heard before property is seized pursuant

to a prejudgment replevin order); Bell v.

Burson, 402 U.S. 535 (1971) (notice and an

opportunity to be heard before a driver's

license is suspended for failure to post

security after an accident); Cohoa v.

Hernandez y Morales, 230 U.S. 139 (1913).

Virginia cannot authorize deprivation

of petitioners' property rights without

appropriate due process. Logan _v.

Zimmerman Brush Co., 455 U.S. 422 (1982).

Even if Virginia could eliminate causes of

action for trespass and nuisance, the

state would be required to give notice

whether the property right is defined as a

fee simple interest unencumbered by

gasoline contamination or a cause of

action in nuisance or trespass. Here,

there was no notice and no opportunity for

petitioners to take any action to protect

their property rights.

A greater degree of state involvement

is found here than in Texaco v. Short, 454

U.S. at 533-534, because Virginia law

prevents petitioners from filing suit

prior to invasion of their property by

gasoline for the reason that the right of

action has not yet accrued, and also

prevents them from filing suit after the

gasoline reaches their property on the

ground that the statute of limitations has

run. See Tulsa Professional Collection

Services, Inc. v. Pope, 485 U.S. 478

(1988) (state involvement in probate).

IV.

The Equal Protection clause of the

Fourteenth Amendment requires that all

persons similarly situated be treated

alike. City of Cleburne v. Cleburne

Living Center, 473 U.S. 432, 439 (1985).

Under the Equal Protection clause, there

are three standards which may _ be

applicable in reviewing an equal

protection challenge: strict scrutiny,

intermediate scrutiny, and rational basis.

Id. at 440-441.

Legislation that infringes a

fundamental right must be examined under a

strict scrutiny standard of review. Id.

at 440; Harper v. Virginia State Board of

Elections, 383 U.S. 663, 670 (1966) (right

of franchise). Since the right to own and

enjoy real property is a fundamental

right, the Court should review

petitioners' equal protection challenge

under the strict scrutiny standard of

review.

Even if the Court were to conclude

that rational basis review is the

appropriate standard, this statute, as

applied to the discharge of gasoline,

fails to “bear some rational relationship

to a legitimate state end." McDonald v.

Board of Election, 394 U.S. 802, 809

(1969).

Equal protection is violated where

harmful disparities in state treatment

have no legitimate basis. Allegheny

Pittsburgh Coal Co. v. Webster County, 488

U.S. 336 (1989); Metropolitan Life Ins.~

Co. v. Ward, 470 U.S. 869 (1985); Zobel v.

Williams, 457 U.S. 55 (1982).”

At a minimum, the Equal Protection

clause requires that legislation classify

the persons it affects in a manner

rationally related to a legitimate

governmental objective. The

classification scheme must “rationally

advanc({e] a reasonable and identifiable

as Dictum to the contrary found in

Vv , 427 U.S. 297, 306

(1976), appears to have been superseded by

the cases cited above. See Nordlinger v.

Hahn, __._ U.S.___, 112 S. Ct. 2326 (1992).

governmental objective." Logan v.

Zimmerman Brush Co., 455 U.S. at 439

(separate opinion by Blackmun, J.),

quoting Schweiker v. Wilson, 450 U.S. 221,

235 (1981).

Since, as noted above, the drafters

of the 1977 amendment did not intend to

change the statute of limitations for

trespass and nuisance when the duty was

breached many years prior to any damages,

the change in § 8.01-230 cannot be said to

be rationally related to any legitimate

government objective. See F.C.C. v. Beach

Communications, Inc., _._ U-S. » 223

S. Ct. 2096, 2106 n.3 (1993) (Stevens, J.,

concurring in judgment).

No reasonable government objective is

to be furthered in barring claims by

property owners arising in trespass or

nuisance resulting from underground

pollution prior to their accrual or in

denying equal remedies to those property

owners whose actions are time barred prior

to their suffering any injury. The

Commonwealth of Virginia has no legitimate

interest in protecting persons discharging

gasoline against petitioners' claims.

There is no _ rational basis. for

discriminating against a class of

plaintiffs whose causes of action are time

barred prior to their being injured by the

presence of hidden underground gasoline

contamination for the purpose of

protecting underground polluters. Heath

Vv. bu & Co., 464 A.2d at 296

(N.H. 1983).

CONCLUSION

This case presents important due

process and equal protection issues

regarding the constitutionality of the

Virginia statute, including the due

process issues which this Court left

unresolved in Mills _v. Habluetzel, 456

U.S. 91 (1982), and Tulsa _ Professional

Collection Services, Inc. v. Pope, 485

U.S. 478 (1988). Citizens of Virginia are

entitled to due process and equal

protection as guaranteed by the Fourteenth

Amendment. For these reasons, this Court

should grant the Petition for Certiorari.

Respectfully submitted,

Bradley G. McDonald*

John F. Karl, Jr.

MCDONALD & KARL

2100 Pennsylvania Avenue, N.W.

Suite 675

Washington, D.C. 20037-3202

(202) 338-7800

William B. Moore

SCHWARZ, ELLIS & MOORE

4950 North Fairfax Drive

Arlington, Virginia 22213

(202) (703) 532-9300

Counsel for Petitioners

* Counsel of Record

APPENDIX

VIRGINIA:

In the Supreme Court of Virginia held

at the Supreme Court Building in the City

of Richmond on Wednesday the 3rd day of

November, 1993.

DOROTHY EWIN MEGGERS,

et al., Appellants,

against Record No. 930997

Circuit Court No. L91-329

Exxon Corporation, et al., Appellees.

From the Circuit Court of Arlington County

Upon review of the record in this

case and consideration of the argument

submitted in support of and in opposition

to the granting of an appeal, the Court is

of opinion there is no reversible error in

the judgment complained of. Accordingly,

the Court refuses the petition for appeal.

A Copy, Teste:

David B. Beach, Clerk

By: /s/Aaai

Deputy Clerk

VIRGINIA:

In the Supreme Court of Virginia held

at the Supreme Court Building in the City

of Richmond on Friday the 7th day of

January, 1994.

DOROTHY EWIN MEGGERS,

et al., Appellants,

against Record No. 930997

Circuit Court No. L91-329

Exxon Corporation, et al., Appellees.

From the Circuit Court of Arlington County

Upon a Petition for Rehearing

On consideration of the petition of

the appellants to set aside the judgment

rendered herein on the 3rd day of

November, 1993 and grant a rehearing

thereof, the prayer of the said petition

is denied.

A Copy,

Teste:

/s/ David B. Beach

Clerk

VIRGINIA:

IN THE CIRCUIT COURT OF ARLINGTON COUNTY

DOROTHY EWIN MEGGERS, et al.

Plaintiff :

Vv. : AT LAW

: NO. 91-329

EXXON CORPORATION, et al. :

Defendant :

FINAL ORDER OF DISMISSAL

CAME THE PARTIES on March 9, 1993,

before Judge Benjamin Kendrick for trial

in this matter, and the Court having taken

judicial notice of the prior rulings of

the Honorable Paul F. Sheridan with

respect to the applicability of Virginia

Code § 8.01-230 and § 8.01-243 to this

case;

The Court having determined that in

the absence of a justiciable issue with

respect to equitable estoppel, the

application of the aforesaid code

provisions would render the remaining

Claims of the plaintiffs time barred, and

having as a result thereof requested a

proffer of evidence from the parties with

respect to the issue of equitable

estoppel;

The Court having heard and considered

the aforesaid proffers, all as more fully

set forth in the Transcript of Trial

Proceedings dated March 9, 1993, and Exxon

having renewed by motion its plea in bar

heretofore made to dismiss the case based

on the Statutes of Limitations, it was

thereafter

ORDERED that the defendant Exxon

Corporation's motion to Dismiss was

granted;

ORDERED that the case be dismissed

with prejudice.

ENTERED this 30th day of April, 1993.

Ls/ Benjamin Kendrick

Judge Benjamin N.A. Kendrick

WE ASK FOR THIS:

SLENKER, BRANDT, JENNINGS & JOHNSTON

By: /s/ Tina L. Snee

Tina L. Snee, Esq.

Counsel for Defendant Exxon Corp.

P. O. Box 2908

Merrifield, Virginia 22116-2908

ARCHER & GREINER

A Professional Corporation

By: /s/ Robert T. Lehman

Robert T. Lehman

Attorneys for Defendant Exxon Corp.

One Centennial Square

P. O. Box 3000

Haddonfield, NJ 08033

MCDONALD & KARL Seen and objected to

By:

Bradley G. McDonald

Attorneys for Plaintiffs

1919 Pennsylvania Avenue, N.W.

Suite 300

Washington, D.C. 20006

A COPY:

TESTE: DAVID A. BELL, Clerk

Deputy Clerk

VIRGINIA:

IN THE CIRCUIT COURT OF ARLINGTON COUNTY

DOROTHY EWIN MEGGERS, et al.,

Plaintiffs, :

vs. : At Law No.

: 91-329

EXXON CORPORATION, et al., :

Defendants. :

ORDER

CAME THE PARTIES on April 30, 1993,

on plaintiffs' Motion for Reconsideration

of the Ruling by Judge Benjamin Kendrick

dismissing plaintiffs' claims.

The Court having duly considered

plaintiffs pleadings in support of the

Motion for Reconsideration and the

response thereto, and having heard the

arguments of counsel in open court, it is

hereby ORDERED that the plaintiffs'

Motions for Reconsideration is denied.

ENTERED this 21st day of May, 1993.

is/ Benjamin Kendrick

Benjamin N.A. Kendrick, Judge

WE ASK FOR THIS:

SLENKER, BRANDT, JENNINGS & JOHNSTON

By: /s/ Tina L. Snee

Tina L. Snee, Esquire

Attorneys for Defendant Exxon

Corporation

P. O. Box 2908

Merrifield, VA 22116

SEEN AND OBJECTION NOTED:

SCHWARTZ, ELLIS & MOORE

By: /s/ William B. Moore

William B. Moore, Esquire

Attorney for Plaintiffs

6950 North Fairfax Drive

Arlington, Virginia 22213

A COPY:

TESTE: DAVID A. BELL, Clerk

By Beverly J. Key _

Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.