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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1070

## Text

FILE?Pr

ry
\\) 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,
We

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

eee Pte ey ee, ne ee ne ee ee eee ee a eee Sa a a oe, ee ee eee or ae Oe Dh ee ee alle ed Fede ee en ee

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

ii

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.

iv

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
Re « « 6 6 ¢ 6 % SS
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vi
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
Ve
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

ix

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,

45

19

33

38

42

28

42

33

43

24

40

45

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.)

34

34

30

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.

2
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.

3

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

4

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,

y
including actions by a
parent or guardian of an
infant against a tort-
feasor for expenses of
curing or attempting to

5
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
A.

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

6

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

7

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

9
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.

10
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.

11
B.

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

12

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

13

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.

14
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

15
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.

16
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

17
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).

I.

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).

18

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

19
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

20
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

21

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.
A.

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

22
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.

23
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

24
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,

25
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.

26
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

27

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.

28
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,

29

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.

30
D.

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

|
:

31

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.

32

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

33
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).

34

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.).

35

(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

36
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.

37

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

38
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

39

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.

40

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

41
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

42
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).

43

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

44

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

45

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

la
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

2a
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

3a

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

4a

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.

es

5a

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

6a

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

By
Deputy Clerk

7a

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

8a

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

a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1219%3A3. Public record. Not legal advice.