Petition for Writ of Certiorari — Pricer v. Butler

Supreme Court, U.S.

F FILED

021760 may 28 2003

No.

a bi -

IN THE

SUPREME COURT OF THE UNITED STATES

Gwen R. Pricer,

David Pricer

Randi L. Eckhardt,

David C.M. Pricer,

Petitioner(s)

Vv.

Samuel M. Butler,

Betty C. Butler,

Respondent(s)

On Petition For Writ Of Certiorart

To The Honorable Supreme Court Of Virginia

PETITION FOR WRIT OF CERTIORARI

Gwen R. Pricer, pro se Randi L. Eckhardt, pro se

David Pricer, pre se David C. M. Pricer, pro se

P.O. Box 992,

Goochland, Virginia , 23063

540-891-1953

A EAI OT TTL KNEE

‘sma aati aa

QUESTIONS PRESENTED

1). Were the Civil Rights and Liberties of the Pricer

family violated under the Fifth, Sixth, Seventh, Eighth,

Thirteenth, and Fourteenth Amendment(s) of the

Constitution Of The United States,

2). Were the Rights and Liberties of Randi L. Eckhardt

who is a disabled person violated under the Fifth, Seventh,

and Fourteenth Amendment(s) of the Constitution Of The

United States,

3). When violation(s) of the Fifth, Seventh and the

Fourteenth Amendment(s) of the Constitution Of The United

States has occurred(s), and a State Supreme Court deny(s) a

Petition For Appeal and Rehearing,

a. does the Court fail to “Self Govern Itself” and thus

fail to protect the rights and interests of a disabled

persons(s) and any citizen(s) of the State,

b. surrender jurisdiction to the United States

Supreme Court for final and complete justice for a

disabled person(s) and their family,

c. aid in perpetuating the prejudice and stigmata

of a disabled poor person(s) or any person(s) of the

United States that face a populace who already

I

ms

Questions

discriminate(s) and inflict(s) pain and injury

against them when they are totally incapable to

represent themselves in the foreign arenas of

government and law,

d. further cause the interests and rights of a mentally

and physically disabled person not to be

acknowledged and protected during a Warrant in

Debt and Unlawful Detainer Action proceedings

before a State tribunal,

_—

e. deny a disabled person and their family the right

to equitable final and complete justice in a civil and or

criminal matter,

f. blind the existence of civil and criminal

conspiracy(s), fraud and other evil acts having been

and being perpetrated against a mentally and

physically handicapped person(s) and family

members, by certain Government agencies and

official(s) and as such, causes a Citizen(s) to have

further harm and injury being perpetrated against

them to protect the agency(s), as has occurred with

the Pricer family,

g. aid local private citizen(s), private company(s),

corporation(s), that are “in power and are wealthy or

I

Questions

the most haughty of these and others”, and who have acted

under “the color of state law”, to separate and segregate any

Citizen(s),

4). Where there exists State and Government judicial

proceeding(s) requiring a State Code and Statue to be

identified and wherein, a mentally disabled person, is

involved, does the definitive description of “LUNATIC” as

used in the Code Book of Virginia or any other Code or

Regulation Book cause further segregation, prejudices, and

stigmatization within its own government and judicial

agency(s) and private sector(s).

LIST OF PARTIES

PETITIONERS:

Gwen R. Pricer, pro se

David Pricer, pro se

* Randi L. Eckhardt, pro se

David C. M. Pricer, pro se

Post Office Box 992

Goochland, Virginia 23063

(804) 747-0840

(540) 891-1953

RESPONDENTS:

Samuel M. Butler

Betty C. Butler

10238 COPPER FOX LANE

Midland, Virginia22728

(540 439-6565

COUNSEL FOR RESPONDENTS:

S. Crisler Lindsay

763 Madison Road, Suite 206

~ Culpeper,aVirginia 22701

(540) 825-9500

Michael M. Palmer Esq., Counsel Relieved

* Mentally and Physically Disabled

Appendix

Appendix

Appendix

Appendix

LIST OF APPENDICES

Virginia Circuit Court of Fauquier

County - Warrenton, Virginia

Trial Order Case No. CL01-86

April 24, 2002

B. The Supreme Court of Virginia

Richmond, Virginia

Order denying Rehearing Petition for

Appeal Record No. 021746

February 28, 2003

The Supreme Court of Virginia

Richmond, Virginia

Order denying Petition for Appeal

Record No. 021746

December 23, 2002

Virginia Court of Appeal - Transfer to

the Supreme Court of Virginia

Order - Record No. 021746

June 19, 2002

Appendices

Appendix E. Other Documents:

Residential and Property Lease

General District Court of Fauquier

County, Warrenton, Virginia

The Honorable Charles B. Foley

Case No. V00-2259

Trial Order - Unlawful Detainer

March 09, 2001

VI

TABLE OF CONTENTS

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LAat CE AQUI ICRD. o..sericninsosersessinuiersnasseiscesusesiicnsimasnsinns V

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Shenbermnetet Gee MATIC wns crsierenscinasananssnnsersncassaneisnsen 1,

IE CE TO C1 iesisientriecsieensctesevinininsntenectaeininncnnns 2.

Argument for a Writ of Certiorari...........:.cscessseseseseees 12.

Conclusion.............0++ sacilecaualcadestecdahincbiouenhanadiediea mana 13.

Vil

TABLE OF AUTHORITIES

Arnold v. United Parcel Serv., Inc., 136 F .3d 854, 861 (1* Cir.

1998)

American Federation of Labor v. Swing, 312 U.S. 321 (1941)

(rights under the Fourteenth Amend. protects against

violations of govern. and officials)

Bd. Of Trustees v. Garrett, 531 U.S. 356, 365 (2001)

Breezewood Management Co. v. Maltbie, 411 N.E.2d 670, 673-4

(Ind.Ct.App.1980) implied warranty

Cantwell v. Connecticut, 310 U.S. 296(1940) (arrest for breach

of peace, violation of Fourteenth Amend.)

City of Boerne v. Flores, 521 U.S. 507, 534, 536 (1997)

Cleburne, School Board of Nassau County v. Arline, 481 U.S. 273,

283, 287 (1987)

Duran v. City of Tampa, 430 F. Supp. 75, 76 (M.D. Fla. 1977)

Commonwealth v. Tinsley, 564 A.2d 286 (Pa. Commw. 1989)

Brown v. Board of Education, 347 U.S. 483 (1954)

Cooper v. Aaron, 358 U.S. 1 (1958)

Gorman v. Bartch, 152 F .3d 907 (10 Cir. 1998)

Griffin v. Brekenridge, 403 U.S. 88(1971) §2

VIII :

Authorities

Heller v. Doe, 509 U.S. 312. (1993)

Innovative Health Sys., Inc. v. City of White Plains, 117 F .3d 37,

45 (2d Cir. 1997)

Johnson v. City Saline, 151 F. .3d 564, 569 (6 Circ. 1998)

Kilcullen v. N.Y. Dept. of Labor, 205 F .3d 77, 80. (2"¢ Cir. 2000)

Kimel v. Florida Bd. Of Regents, 528 U.S.62, 81 (2000)

Logan v. United States, 144 U.S. 263 (1892), In re Quarles, 158

U.S. 532 (1895)

Martin v. Hunter’s Lessee, 14 U.S. (1Wheat.) 304 (1816) (Story.

J.)

McDonald v. Santa Fe. Transportation Co., 427 U.S. 273 (1976),

held that 42 U.S.C. section 1981 as well as Title VII of the Civil Rights Act of

1964

Meyer v. Nebraska, 262 U.S. 390 (liberty protected by Due

Process)

Mixon v. Ohio and Michael White, 193 F .3d 389, 398-99 (6" Cir.

1999 states challenging federal civil rights (citing omitted)

Muller v. Costello, 187 F .3d 298, 309 (24 Cir. 1999)

Olmstead v. L.C., 527 U.S. 581, 119 S.CT. 2176, 144 L.Ed.2d 540

(1999)

Ix

Authorities

Pushkin v. Regents of the Univ. of Colo., 658 F.2d 1372, 1387 (10"

Cir.1981)

Richardson v. Purvis, 402 So.2d 910 (Ala. 1981)

Runyon v. McCrary 427 U.S. 160 (1976) (Certiorari to the

U.S.C.A.) (4" Circ.)

School Bd. Of Nassau County v. Arline 480 U.S. 273, 284 (1987).

Governmental decisions about persons with disabilities based on myths or

unfounded fears violate the Equal Protection Clause

Shields v. Barrow, 17 How. 130, 15 L. Ed 158

Sioux City Bridge Co. v Dakota County, Neb., 260 U.S. 441, 445

(quoting Sunday Lake Iron Co. v. Wakefield Township, 247 U.S._350, 352

(1918)

Steelworkers v. Weber 443 U.S. 193 (1979), Chapter 6 supra,

Judge Gee wrote (611 F. 2d 133 (5t Cir. 1980) on remand from the Supreme

Court's decision

Sutton v. United Air Lines, Inc. 527 U.S. 471, 483 (1999)

Thompson v. Davis, 282 F .3d 780, 786-87 (9" Circ. 2002) see

also Johnson, 151 F .3d at 569-70

United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938)

(stating that “discrete and insular minorities” may not be properly

protected by the political process).

United States V. Lancaster, 44 F. 885 (C.C.W.D. Ga. 1890)

(defendants indicted for conspiring to prevent landowner from suing )

x

Authorities

United States v. Morrison, 120 S.Ct. 1740, 1755 (2000) (“Section

5 is a positive grant of legislative power that includes authority to

prohibit conduct which is not itself unconstitutional and [to]

intru[e] into “legislative spheres of autonomy previously reserved

to the States”)

United States v. Waddell, 112 U.S. 76 (1884) conspiring to

interfere with the victim’s attempt_to settle

Youngberg v. Romeo, 457 U.S. 307 (1987)

LEGISLATIVE MATERIALS

S. Rep. 1297, 93". Cong., 2"° Sess.28 reprinted in 1974

U.S.C.6373, 6400

Thirty-Ninth Cong., Poor whites, see, e.g., id. at 3035

(Statement of Sen. Henderson)

Thirty-Ninth Cong., downtrodden and vulnerable more

generally, see e.g., id. at App.256

Thirty-Ninth Cong., equal protection clause see, id. at 2766

(Statement of Sen. Howard) “gives the humblest, the poorest, the

most despised of the race, the same rights and the same protection

before the law as it gives to the most powerful, the most wealth, or

the most_haughty”).

XI

CONSTITUTION

U.S. Const. :

Article I

Article VI [2] [3]

Article VII

Amend. V

Amend. VI

Amend. VII

Amend. VIII

Amend. XIII

Amend. XIV

STATUTES and REGULATIONS

20 U.S.C. §1400 et seq.

28 U.S.C. §1257 (1), (2), (3)

28 U.S.C. § 1292 (b)

28 U.S.C. § 1331

28 U.S.C. § 1343

28 U.S.C. § 35.150

28 C.F.R. § 35.150(d)(2

28 C.F.R. § 35.151

28 C.E.R. § 36.101

28 C.E.R. § 36.102

28 C.E.R. § 36.103

28 C.F.R. § 36.104

28 C.E.R. § 36.201

28 C.F.R. § 36.202

28 C.F.R. § 36.203

xIl

28 C.F.R. § 36.204

28 C.F.R. §36.205

28 C.F.R. § 36.206

28 C.F.R. § 36.207

28 C.F.R. § 36.208

28 C.F.R. § 36.211

28 C.F.R. § 36.212

28 C.E.R. § 36.213

28 C.E.R. § 36.301

28 C.E.R. § 36.302

28 C.E.R. § 36.303

28 C.E.R. § 36.304

28 C.F.R. § 36.305

28 C.F.R. § 36.401

28 C.F.R. § 36.402

28 C.E.R. § 36.403

28 C.E.R. § 36.406

28 C.F.R. § 36.407

28 C.E.R. § 36.501

28 C.E.R. § 36.502

28 C.E.R. § 36.503

28 C.E.R. § 36.504

28 C.E.R. § 36.505

28 C.E.R. § 36.506

28 C.E.R. § 36.507

28 C.E.R. § 36.508

28 C.E.R. § 36.601

28 C.E.R. § 36.602

28 C.E.R. § 36.603

28 C.E.R. § 36.604

28 C.E.R. § 36.605

XI

Statutes continued

Statutes continued

28 C.F.R. § 36.606

28 C.F.R. § 36.607

28 C.F.R. § 36.608

28 C.F.R. § 794

29 U.S.C. § 794(B)

504[of the Rehabilitation Act]

H.R. REP. No. 101-485 (II), at 84 (1990)

1990 § U.S.C.C.A.N. 303, 367 (emphasis added)

1990 § U.S.C.C.A.N. 303, 434

42 U.S.C. §12101,

42 U.S.C.§12101(7)

42 U.S.C.§ 12131,

42 U.S.C.§ 12132,

42 U.S.C.§ 12133, (Title 29>chapter 16 >General

Provisions>794a.

42 U.S.C.§ 12134

42 U.S.C.§ 1981.(a), (b), (c)-

42 U.S.C. § Chapter 144, (sec .a., 5002, 15003, 15003, 15005,

15008,_ 15009, (part b.), 15021, 15022, 15023, 15024, 15025,

15026, 15027, (part c.), 15041, 15042 , 15043, 15044, 15045,

(part d.),15061, 15062, 15063, 15064, 15065, 15066, (part e.)

15081, 15082, 15091, 15091, 15093, 15094, 15095, 15096(b.)

15098,15099, 15100, 15101, 15111(3)

42 U.S.C. §Chapter 21, (sec.1981, 1981a., 1982, 1983, 1985,

1986, 1987, 1988, 1992, 2000a., 2000a-1, 2000a-2, 2000c-7,

2000c-8, 2000c-9, 2000d-7, 2000h., 2000h-2, 2000h-3)

42 U.S.C. § 4151 (1968) -

42 U.S.C. § 3601, 3602 et seq.

XIV

Lah DE CA avi Ce

Statutes continued

42 U.S.C. § 3614.1

42 U.S.C. § 3615

42 U.S.C. § 5121

42 U.S.C. § 5401

42 U.S.C. § 10601

42 U.S.C. § 10801

42 U.S.C. § 12101

42 U.S.C. § 15001

VIRGINIA STATUES

CODE OF VIRGINIA:

TITLE 8. 01 .1 Civil Remedies and Procedure

§§ 8.01-257 through 8.01-267

§§ 8.01-270 through 8.01-284

§§_8.01-364 through 8.01-373

§§ 8.01-374 through 8.01-384.2

§§ 8.01-526 through 8.01-532

§§ 8.01-620 through 8.01-634

§§ 8.01-669 through 8.01-675.2

§§ 8.01-676 through 8.01-688

VIRGINIA COURT RULES AND PROCEDURE

PART VI:

Sect II. Virginia Rules of Professional Conduct

Rule: 1.1

Rule: 1.2

Rule: 1.7

Rule: 1.8

Rule: 1.14

XV

Statutes continued

Rule: 1.16

Rule: 3.4

Rule: 4.1

Rule: 4.2

OTHER REFERENCES:

* Ms. Arlene Mayerson- brief

The University of Alabama v. Patricia Garrett and Milton

Ash

STATE CASES

Angstadt v. Atlantic Mut. Ins. Co. 249 Va. 444, 446, 457 S.E.2d

86, 87 (1995)

Brichaceck V. Hiskey, 401 N.W. .2d 857, 859-60 (1982)

City of Richmond v. J] .C. Croson , 488 U.S. 469, 490 (1989)

(plurality opinion of O’Connor, J.) (“Congress, unlike any State or

political subdivision, has a specific constitutional mandate to enforce the

dictates of the Fourteenth Amendment. The power to ‘enforce’ may at

times also include the power to define situations which Congress

determines threatens principles of equality and to adopt prophylactic rules

to deal with these situations.”)

Doe v. Doe, 1992, 421 S.E.2d 913 15 Va. App.242

Edwards v. Habib, 397 F.2d 687 (D.C. Cir.1968)

Gumernick v. U.S. 214 Va. 510, 193 S.E.2d 788 (1973)

XVI

Cases

Irwin v. Wine 4 Va. Cir. 37 (Warren Co. 1981)

Kearns v. Hall, 197 Va. 736, 91 S.E.2d 648 (1956)

Langston v. Bassette, 1905 51 S.E.218, 104 Va. 47

Lemmon v. Herbert, 1896 24 S.E.249, 92 Va. 653

Millie I. Irwin v. Mary H. Wine (1981) WL 180491 (Va. Circ.

Ct.) retaliatory eviction

Moses v. Aker, 1961 122 S .E. 2d 864, 203 Va. 130

Shaefer v. Murphy, 640 P .2d 857, 859-60 (1982)

Stanley v. Fairfax County Dept. of Social Services, 1991 405

S.E.2d 621, 242 Va. 60

Weaver v. Glenn, 1905 51 S.E.835 104 Va. 443

XVII

STATEMENT

JURISDICTION:

This Writ for Certiorari originates from the General

District Court of Fauquier County and was caused by a

Warrant in Debt and Unlawful Detainer Action being filed

against Gwen R. Pricer and David Pricer, your Petitioners,

- and whose daughter is severely mentally and physically

disabled. Such action was initiated by Samuel M. Butler and

Betty C. Butler. Mr Butler served as a member of the

Fauquier County Supervisory Board of Building and

Development Department for sixteen (16) years. A Final

Order from the General District Court of Fauquier County

was entered on the 9" day of March 2001. The Pricer family

filed their appeal in the Virginia Circuit Court of Fauquier

County on 20" day of March 2001. The family perfected

their appeal to Court on the 12" day of June, 2001. A Final

Order was entered from the Virginia Circuit Court of

Fauquier County by the Honorable Jeffrey W. Parker on the

23" day of April 2002, and memorialized on the 24" day of

April 2002. On the 29" day of April 2002, the Pricer family

filed a Notice and Motion to Amend the Final Order

entered by the Circuit Court. The Pricer family also prayed

for the reimbursement of attorney fees regarding this

matter. On the 8" day of May 2002, the Honorable Jeffrey

W. Parker convened a hearing for the consideration of all

such matters and after hearing ore tenus by counsel from

both parties, the Honorable Jeffrey W. Parker entered a

decision denying the Pricers’ Motion to Amend and stated

that “such Motion to Amend is frivolous and without merit”,

and denied the Pricer family reimbursement of attorney

&

fees. He then penalized them by awarding the sum of One

Hundred fifty dollars($150.00) to S. Crisler Lindsay, as the

Counsel for Mr. And Mrs. Butler, for the “inconvience of

having to appear on such a frivolous matter”. A Hearing was

also held by the Honorable Jeffrey W. Parker regarding a

Show Cause against Michael M. Palmer, Esq., as Counsel for

the Pricer family and to his reason(s) for not presenting

himself for a Court scheduled 5-day trial. Upon hearing oral

argument from Mr. Palmer, Judge Parker entered a Order,

deferring sentencing of Mr. Palmer for twelve (12) months

on the condition that he completely remove him- self from

any further matters regarding Butler v. Pricer in the event

the Pricer family would consider to re-file their claim. On

the 8" day of May 2002, the Honorable Jeffrey W. Parker

entered his decision on these matters. The Final Order was

memorialized on the 11" day of June 2002, by Mr. Crisler S.

Lindsay over a month after the Court had made its decision.

The Pricer family filed their Notice of Appeal in Court of

Appeals on the 17" day of May 2002. On the 24" day of

June 2002, the Supreme Court of Virginia entered an Order

to remove the Case from the Virginia Court of Appeals. On

the 24" day of July 2002, the Pricer family filed their

Petition for Appeal to the Supreme Court of Virginia. On

the 12'" day of August 2002, the Pricer family filed a Motion

to Amend their appeal and which was granted on the 18"

day of September 2002, by the Supreme Court of Virginia.

On the 23" day of December 2002 Supreme Court of

Virginia denied the Pricer family their Petition for Appeal

stating “no reversible error in the judgment complained of and

accordingly the Court refuses the petition for appeal” On the 6"

day of January 2003 , Petition for Rehearing was filed in the

Supreme Court of Virginia. On the 28th day of February

2.

2003, the Supreme Court of Virginia entered an Order

denying your appellant(s) a rehearing.

STATEMENT OF THE CASE

Mr. and Mrs. Butler criminally induced the Pricer

family to enter into a residential property Lease that

commenced on the 15" day of September 2000, and

included a residence (cottage) and barn situated on twenty-

six and one-quarter acres (261/4) acres. The leased residence

(cottage) and property would become the home of Gwen R.

Pricer, (mother), David C. M. Pricer, (son), and Randi L.

Eckhardt, (daughter, who is permanently disabled). Mr. David

Pricer,(the husband), was not a permanent resident. The

family also had certain pets as part of their residential

household, along with equine and other livestock that

would have utilization of the barn facility. The Lease would

include all utility services to both the residence (cottage) and

the barn facility. The cost(s) for such services would be the

responsibility of the Pricer family and was to be reimbursed

to Mr. and Mrs. Butler with the monthly rent payment.

Additionally, a Security Deposit in the amount of Six-

Hundred dollars ($600.00) was to be paid in two (2) equal

payments of Three-hundred dollars ($300.00) each. The first

payment was paid on the 8" day of August 2000. The latter

payment of Three-hundred dollars ($300.00), was due after

final completion of certain property clean- up, water hookup,

and maintenance by Mr. Butler to the residence. Clean-up of

the property around the residence and barn facility was to

include the removal of considerable waste material(s) and

debris located throughout the property. This was agreed

upon nuncupare during a meeting with Mr. Butler, David

3.

Pricer and Gwen R. Pricer and was duly noted on the

residential property Lease by the omission of any penned

due date for final payment of the balance. The barn facilities

located on the property would provide a future income for

Mrs. Pricer and her family by the establishment of an Equine

Boarding Facility.

During the week of November 22"? 2000, a fire broke

out at the mobile home residency directly adjacent the

Pricers leased residential (cottage) property which caused a

temporary shut down of all vital electrical services to the

residential (cottage)portion of the leased property. The barn

facilities, however, retained their electrical supply through a

separate utility box located in a rental unit adjacent to the

barn portion of the leased property. On or about the 28" day

of November 2000, such person(s) who identified themselves

as agent(s) of the Rappahannock Electric Company, arrived

and permanently removed the electrical circuit box from the

residential property where the fire had taken place. This

action caused a total loss of all vital electrical services as

needed by the family to care for their handicapped daughter

and son. The Pricer family was required to locate their 28'(ft.)

Shasta Recreational Vehicle to the barn facility to reside in,

until such time Mr. and Mrs. Butler could restore such utility

service to the residence (cottage). The Pricer family was

caused to reside in their RV by their lack of financial ability

to seek other more suitable accommodation(s), and the frigid

weather of the time. They fully expected that utility services

to the residence would be restored in the near future. Thus,

the correct and proper notification to Mr. and Mrs Butler to

restore such utility service(s) was made by the Pricer family,

but Mr. and Mrs. Butler did not respond to any of these

multiple attempts. On or about the evening of 18" day of

4.

December 2000, during the first severe snowstorm of the

year, Mr. Butler personally and with help from other private

sector(s), cut-off all electrical and water service to the barn

facility, thus removing the last source of utility service(s)

available to the Pricer family and their RV, causing severe

endangerment to the lives of their handicapped daughter and

their son. Without financial resources available to Mrs. Pricer

to afford the opportunity to arrange other living

accommodation(s) for the family, Mrs. Pricer began to seek

re-establishment of utility service(s). Upon contacting the

Rappahannock Electric Company to establish such service,

she was notified of their being totally ignorant to any

resident facility existing on the leased property. They further

stated they would not be able to provide any electrical

service without permission from the Fauquier County

Building and Zoning Department. Mrs. Pricer, was advised

to contact the appropriate County government agencies for

their approval to re-install such electrical service box(s).

Contact to the Fauquier County Building and Development

Department and the Zoning Department, along with a check

of their records, revealed that Mr. and Mrs. Butler had not

applied for any of the required building or zoning permits

and that a Certificate of Occupancy had never been issued

for the leased residence (cottage). Scrutiny of the County

Records revealed that only the aforementioned mobile home,

(where the fire had occurred), was the sole residence

lawfully permitted to be on the leased residential property.

Mrs. Pricer at this time filed a formal complaint with the

Fauquier County Building and Development Department.

On the 5" day of January 2001, Mrs. Pricer sent proper

written notice to Mr. and Mrs. Butler to take immediate

action to remedy these unlawful violations. Mr. and Mrs.

Butler responded to such notification by managing and

5.

participating in innumerable acts of civil and criminal

harassment and malice against the Pricer family, their pets

and livestock. These acts were (and are), aided by private

sector person(s), certain business(s), and agencies, who have

confederated themselves with Mr. and Mrs. Butler in an

effort and hope that all these issues would simply disappear

or be filibustered. The Fauquier County and its’ government

officials, did not proceed to take any course of action under

the mandated Federal and State guidelines to cause Mr. and

Mrs. Butler to bring the leased home and property up to the

required Uniform Statewide Building Code (USBC), Section

109.0, Application for Permit, 114.0 Inspections or 118.0

Certificate of Occupancy.

On the 28" day of December 2000, Mr. and Mrs.

Butler filed a Summons for Unlawful Detainer Action in the

General District Court of Fauquier County, wherein they

stated the Pricer family was in default of rent in the amount

of Five-Hundred dollars ($500.00). On March 2, 2001, in the

General District Court of Fauquier County, with the

Honorable Charles B. Foley presiding, Butler vs. Pricer, in

the matter of an Unlawful Detainer Action was called to be

heard. Prior to the commencement of hearing the Unlawful

Detainer Action, the Honorable Charles B. Foley, “put aside”

the Counter Claim filed on behalf of the Pricer family for

“lack of time”. Upon hearing those matters concerning the

Unlawful Detainer Action filed by Mr. and Mrs. Butler, the

Honorable Charles B. Foley on the 9" day of March 2001,

entered a order wherein he stated, “that no proper 5-day quit

notice was given as required by the statue and that all total rent

due was paid through November of 2000”, and “that the dwelling

was uninhabitable under 21* century standards”. The Court then

terminated the Lease and ruled that all rent should be

6.

abated. On the 20" day of March 2001, the Pricer family filed

their appeal to the Honorable Circuit Court of Fauquier

County. On the 12" day of June 2001, after the Pricer family

had Perfected their Appeal, the Honorable Jeffrey W. Parker

in the Circuit Court of Fauquier County, held a Hearing for

all such matters relating to trial. The Court at this time set the

official Court Calendar for a Five (5) day trial with a jury, to

commence on the 22" day of April 2002. The Court heard

arguments from S. Crisler Lindsay, Counsel for Mr. and Mrs.

Butler, and Michael M. Palmer, Counsel for the Pricer family.

On the 22" day of April 2002, in the Circuit Court of

Fauquier County and with the Honorable Jeffrey W. Parker

presiding, trial for Samuel M. Butler; and Betty C. Butler,

Complainant(s) v. Gwen R. Pricer and David Pricer,

Defendant(s) \Counter-Claimant Plaintiff(s), was called to be

heard. Prior to the official start of trial, the Court requested

the presence of S. Crisler Lindsay, Counsel for Mr. and Mrs.

Butler, and Gwen and David Pricer. This was caused by

information to the Court, that Mr. Michael M. Palmer, Esq.,

as Counsel for the Pricers’, had not presented himself to the

Court to begin his representation of the Pricers’ through trial

matters. The Pricers’ without Counsel at their side to

represent them, requested and was denied a Continuance of

any length of time, even though the Court held aside a five

(5) day trial to hear all such matters. The Court was made

aware there existed a physically disabled person who was a

“Third Party” interest(s) in such matters. While the Court

was preparing to start official proceedings, the Pricers’ were

notified as to the location of Mr. Palmer and as a result

Motioned to the Court for a Continuance to allow Mr. Palmer

to present himself for their representation. The Honorable

Jeffrey W. Parker, again denied the Motion for Continuance

and stated during his decision that the Pricers’ must decide

7. :

if they would proceed with trial matters pro se, at which time

a short recess was granted for them to make this decision.

The Pricers already overwhelmed by the event of

their Counsel being absent, (Court having a jury panel and

their alternates sequestered, and a witness list that included

the Fauquier County Sheriff and several of his deputy

officers), they were forced to proceed at trial in the Matter of

the Unlawful Detainer Action pro se. The Honorable Jeffrey

W. Parker had already issued a warning to Mr. and Mrs.

Pricer wherein he stated “the Circuit Court is more formal

in the requirements of trial procedure and this Court is going

to hold you to those same standards as those of any other

practicing attorney(s)”. The Pricers were then required by

the Court, without having any legal guidance, to voluntarily

“non suit” their Counterclaim under the statue of 8. 01-380 or

have the Court proceed forward with a five day jury trial on

all matters concerned. The Court also allowed Counsel for

Mr. and Mrs. Butler, to enter into discussions and make

statement(s) of his opinions with the Court, regarding facts

relating to case(s) history that was beneficial to his clients but

prejudiced to the Pricer family and their case. The Pricers,

who found themselves placed in a foreign arena, speaking a

foreign language, and without the legal expertise to

undeistand the material facts of law, could not intervene on

their own behalf, and protect their rights of due process

during this early period of trial. The trial for the Unlawful

Detainer Action lasted for two days. During testimony of

Mr.Butler, on cross examination by Mrs. Pricer, Mr. Butler

admitted to having served on the Fauquier County

Supervisory Board for almost sixteen (16) years, and to his

being personally well versed in the building and zoning

8.

™-~ See

a — — ee ll Oo eh ere

codes and statues governing the State of Virginia, and those

of Fauquier County. He testified that he had the opportunity

to assist in the future development plans for Fauquier

County. He testified that he and Mrs. Butler owned

numerous real rental properties. He also testified that he was

fully cognizant that Randi Lee Eckhardt was a disabled

person, and a resident of the leased residence and property.

During this portion of testimony he described Randi as being

mentally retarded. He testified to his deliberate actions to

cut-off all water service to the residency(cottage), and all

utility service(s) to the barn even though he knew she was

there at the time. He testified to his removal of the final

power source to the leased barn facility during the

snowstorm on or about the night of the 18" day of December

2000. Mr. Butler admitted during testimony that he and other

family members, friends and employees, had entered onto

the leased property with heavy equipment and dug several

holes and trenches. That he and other persons had excavated

a trench that ran through the middle of the leased property

approximately the length of three-hundred- fifty feet(350),

and about 3 feet deep. He further testified that by his cutting

off the final power source to the barn facility, he caused the

Pricer family the loss of security lights which had been

installed in- and- around the barn for their protection. He

testified that he had left the holes and trenches (some over 6

ft in depth) open without covering them up because it was

his property and he could do what he wanted. He had

testified that the Sheriff of Fauquier County had come to the

leased property after Mrs. Pricer had complained of her

daughter falling into the 350 ft. trench and seriously being

hurt and that at the time, she was alone, and had been forced

to walk her dog in the dark without the necessary security

lights for her personal protection. Mr. Butler testified that the

9.

Sheriff of Fauquier County had instructed him to completely

cover the holes and trenches up. Asked if he was aware that

Randi had fallen into the trench a second time after the

Sheriff of Fauquier had been to the property, he testified that

he had heard something about that. Mr. Butler testified that

on several occasions he entered unannounced onto the leased

property with other family members, friends, and other

associates, and that their acts were deliberate attempts to

make the Pricer family leave their leased (cottage) home and

their property. He Testified that these acts were caused by

the Pricer family not having paid any rent for several

months, and their being squatters upon his land. When Mrs.

Butler testified, she stated that she was the rental agent for

several properties and was responsible for the collection of

rent. She also testified that the Pricer family was behind on

their rent and had been squatting on their land. She testified

that she kept a recorded account of all rent payments from all

of her tenants and that the Pricer had not payed any rent for

several months. On the 23 day of April 2002, during a short

recess from trial proceedings, S. Crisler Lindsay, Counsel for

the Butlers, entered into a discussion with Mrs. Pricer, with

regards to the matter of a possible Settlement. Mr. Lindsay

proffered as part of his offer, the possibility of refraining

from seeking criminal charges against her for posing as a

licensed practicing attorney. Hearing this statement from Mr.

Lindsay, Mrs. Pricer removed herself from his presence and

upon the resumption of Court, requested to be heard on the

official Court Record regarding his statements. The Court did

address this matter and in part became a part of the Pricer

family “Statement of Facts”. Mr. Lindsay through two (2)

days of trial deliberately caused public embarrassment to the

Pricer family, aided by certain family members of Mr.

Michael M. Palmer, Counsel of the Pricer family. The

10.

LES ERT ES MAT MAE LEE EE

Honorable Jeffery W. Parker, on the 23" day of April 2002,

and after hearing all trial testimony, adjudicated a Final

Order in the matter of the Unlawful Detainer Action. During

the closing of trial on the 23" day of April 2002, conversation

between the Honorable Jeffrey W. Parker and S. Crisler

Lindsay, for the memorization of the Final Order took place.

The understanding by the Pricers regarding any entry of the

Final Order by the Court (represented in the official

transcripts), was that a draft copy would be presented to the

Pricer family for their perusal. The Pricers did not receive a

copy of the drafted Order as promised to the Court by S.

Crisler Lindsay, Counsel and as a consequence of Counsel

not producing such a drafted copy the Pricers, were caused

not to be in Court on the 24" day of April 2002, to have any

argument heard against the Final Order being memorialized.

On the 29" day of Apri! 2002, through their Counsel, Mr.

Michael M. Palmer, the Pricer family filed a Motion to

Amend the Final Order. On the 8" day of May 2002, after

hearing arguments ore tenus, by counsel for both parties, the

Honorable Jeffrey W. Parker, entered a decision in which he

stated “that such Motion to Amend was frivolous and

without merit”. The Honorable Jeffrey W. Parker,

memorialized this Order on 11" day of June 2002, over a

month after the Court requested the Order to be prepared by

S. Crisler Lindsay, Counsel. Also on the 8" day of May 2002,

a Hearing took place in the Circuit Court of Fauquier County

by the Honorable Jeffrey W. Parker, for argument from the

Counsel of the Pricer family, regarding a Rule tc Show

Cause, issued against him as to why he should not be held in

Contempt of Court for his failure to appear at trial. The Court

ordered that facts were sufficient to hold Counsel in

Contempt, a violation of the Virginia Code Section 18. -456. 1,

the Court deferred its’ adjudication for twelve (12) months,

11.

eli LTE RCRA PD OME pA ABE AE Ko om

and as part of the deferred finding, that “he withdraw as

Counsel in the matter of Butler v. Pricer and that he will not

serve as Counsel in the event the Pricer’s re-file their

counterclaim”.

STATEMENT (2)

Additional Facts Presented

Acts both as a civil and criminal nature against the Pricer

family since the 22"¢ day of November 2000 have magnified

to the complete destruction of the Pricer R.V., the

disappearance of a vehicle to be used as evidence in further

judicial proceeding (jeep was completely vandalized and

riddled with bullet holes), and on or about the 8" day of

March, the leased residence (cottage) burned to the ground,

destroying all the evidence being preserved by the Pricer

family.

ARGUMENT FOR CERTIORARI

28 U.S.C. section 1257 (1), (2), (3), and 28 U.S.C.§ 1331. are

very specific in the requirements for a Writ of Certiorari to be

granted. In the case of the Pricer family, their Writ

engenders all the criteria requisites for the United States to

grant consideration of their Writ, The 21* Century way of

life in the United States, should far exceed the interest(s) of

those who would seek to undermine the intentions of our

forefathers in drafting the Constitution. The Constitution in

its’ most purest form has been anatomized relentlessly for

rights and liberties of all the citizen(s) of the United States.

However; in the case of a mentally or physically

handicapped person(s) we continue to fail in protecting these

special individuals from the loss of these same privileges,

12.

even after years of study and dedication from many arenas.

The Pricer family Writ of Certiorari may occasion the

opportunity for the United States to finally address an area

that has not been clearly defined for the State(s) and their

courts. Individual State judicial tribunals continue to be

confused and rebellious against the direction of the United

States and the Constitution. State(s) desiring to retain its own

power, willingly or unwillingly, deprive certain individuals,

such as the mentally and physically disabled of this Country,

their right to be recognized within a judicial tribunal. Until

recently act(s) of civil and criminal nature by certain

governmental agency(s) and private sector(s) to perpetrate

the stigmata, separation and segregation of citizen(s) has

gone unbridled and this is more * (“pernicious than any private

discrimination as it legitimates society’s unfair consensus and such

action 1s so often embodied in statutes and regulations”).

Arbitrary and irrational action by any governmental arena is

what our Fourteenth Amendment sought to forbid against.

For these reasons the Pricer family request their Writ of

Certiorari be Granted.

absens haeres non erit (L)....the absent one will not be the heir - out of

sight, out of mind.

(This Writ of Certiorari is for all the silent ones ).

GPR

13.

eb Ph BE Ree TE A be al 6 0A 6 OO DiS.

CONCLUSION

The Writ of Certiorari should be granted to the Pricer

family and any financial relief for their costs, expenses and

attorney fees and any other consideration(s) that can be

afforded them, along with any change in direction(s) of State

government behavior towards the mentally and physically

disabled..

Respectfully submitted.

Gwen R. Pricer, pro se

David Pricer

Randi L. Eckhardt, pro se

David C. M. Pricer pro se

28" day of May 2003

14.

AA NE NT ON EOE

VIRGINIA:

IN THE CIRCUIT COURT OF FAUQUIER

COUNTY

SAMUEL M. BUTLER

and

BETTY C. BUTLER

Plaintiffs,

Vv. CASE NO. CLO1-86)

GWEN R. PRICER

and

DAVID PRICER

Defendants.

TRIAL ORDER

CAME the 22d day of April, 2002, Plaintiffs, with

counsel, and Defendants. Defendants’ counsel came not.

Whereupon, Defendants moved this Court for a

continuance, ore tenus, which motion was denied and is

memorialized, nune-pretune, herein.

Whereupon, Defendants moved for a non-suit of all

their claims herein, ore tenus, which motion was granted

and is also memorialized, ntme-pre-tine, herein.

Whereupon, Defendants moved to proceed pro se,

which motion was granted and is also memorialized, nune—

pro-tune, herein.

Whereupon, Plaintiffs’ cause for unlawful detainer

was heard, as well as Defendants’ defense, through the

(a)

Pe i Neb ARE De POR CES AE + CAEL OE

Seni Aneta AA et liasdh BACT of eaem i c

testimony presented by all parties, their witnesses, and

their exhibits.

AND IT APPEARING that (i) Plaintiffs failed to

procure a proper Certificate of Occupancy on the subject

property prior to renting said property to Defendants, (ii) as

a result of that failure, Plaintiffs could not enter into a

lawful rental agreement pursuant to Fauquier County

Codes and Ordinances, (iii) the Rental Agreement among

the parties was therefore, void ab initio, (iv) Plaintiffs are

entitled to possession of the subject property but not to any

further rents therefor, (v) owing to the void rental

agreement, Defendants are not entitled to any damages

from Plaintiffs, and (vi) Plaintiffs are properly entitled to

the cost of this matter, it is

ORDERED AND ADJUDGED, nune-pretune, that

Defendants’ motion for continuance is denied; that

Defendants’ motion for non-suit of their claims in this cause

is granted; and that Defendants’ motion to proceed in their

defense, pro se, is granted.

FURTHER ORDERED and ADJUDGED that (i)

Plaintiffs failed to procure a proper Certificate of

Occupancy on the subject property prior to renting said

property to Defendants, (ii) as a result of that failure,

Plaintiffs could not enter into a lawful rental agreement

pursuant to Fauquier County Codes and Ordinances, (iii)

the Rental Agreement among the parties was, therefore,

void ab initio, (iv) Plaintiffs are entitled to possession of the

subject property 30 days from the entry of this Order but

not to any further rents therefor, (v) owing to the void

rental agreement, Defendants are not entitled to any

damages from Plaintiffs, and (vi) Plaintiffs are properly

rther entitled to the cost of this matter.

(a).

FURTHER ORDERED and ADJUDGED that the

bond held by this court in the amount of $5,750.00, less the

cost of $423.00 awarded to Plaintiffs, is returned to

Defendants after the expiration of the appeal period if no

appeal is taken.

Enter this 24 day of April, 2002.

(S) Jeffrey W. Parker

Judge

Jeffrey W. Parker

I ASK FOR THIS:

(S) S. Crisler Lindsay

S. Crisler Lindsay

763 Madison Road, Suite 206

Culpeper, Virginia 22701

(540) 825-9500

(S) Noticed |

Defendant David Pricer

(S) Noticed

Defendant Gwen R. Pricer

(Stamp)

A COPY TESTE: GAIL H. BARB, CLERK

BY (S) Nancy Heidt DEPUTY CLERK

Nancy Heidt

FAUQUIER CO. CIRCUIT COURT, VIRGINIA

(a).

Virginia:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Friday the 28"

day of February, 2003.

Gwen R. Pricer, et al., Appellants,

against Record No. 021746

Circuit Court No. CL01-86

Samuel M. Butler, et al., Appellees.

Upon a Petition for Rehearing

On Consideration of the petition of the appellants to

set aside the judgement rendered herein on the 23" day of

December, 2002 and grant a rehearing thereof, the prayer of

such petition is denied. ——

A Copy,

Teste:

(S) David B. Beach

(b).

Virginia:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Monday the 23"

day of December, 2002.

Gwen R. Pricer, et al., Appellants,

against Record No. 021746

Circuit Court No. CL01-86

Samuel M. Butler, et al., Appellees.

From the Circuit Court of Fauquier County

On November 14, 2002 came the appellants, in

proper person, and filed a motion to amend the record in

this case. On November 21, 2002, came again the

appellants, in proper person, and filed a motion for

injunction and restraining order. On November 21, 2002,

also came the appellees, by counsel, and filed a motion to

quash in response to appellants’ motion to amend the

record. Upon consideration whereof, the court denies the

appellants’ motions.

Further, upon review of the record in this case and

consideration of the argument submitted in support of the

|| granting of an appeal, the Court is of opinion there is no

reversible error in the judgement complained of.

Accordingly, the court refuses the petition for appeal.

(c).

ee eee eee: ee

A Copy,

Teste:

David B. Beach, Clerk

: By: (S) Shaun L. Kelly

___Deputy Clerk

(c).

Virginia:

In the Court of Appeals of Virginia on Wednesday the

19" day of June, 2002.

Gwen R. Pricer, et al., Appellants,

against Record No. 021746

Circuit Court No. CL01-86

Samuel M. Butler, et al., Appellees.

From the Circuit Court of Fauquier County

It appears that this Court does not have jurisdiction

over this case. Accordingly, the case hereby is transferred

to the Supreme Court of Virginia pursuant to Code § 8.01-

677.1. |

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By: (S)lllegible_

Deputy Clerk

(d).

:

|

|

|

|

:

a

:

:

My

i

:

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}

3

RESIDENTIAL LEASE

This lease is made on the 15" day of Sept. 2000, (804)-776-

7885

The Landlord hereby agrees to lease to Tenant, and Tenant

hereby agrees to hire and take from Landlord, Leased

Premises described below pursuant to terms and conditions

specified herein:

LANDLORD: Samuel and Betty Butler TENANT: Gwen and

Address: P.O. Box 283 David Pricer

Deltaville, VA 23043 Mailing Address

Nightingale Lane, Midland VA Address: P.O. Box

22728 306

Upperville, VA

20185

Business: Line One

. Lorton, VA

Dep.: $300.00 8/10

Dep.: $300.00

1. Leased Premises. The Leased Premises are described as:

(Cottage) at 10232 Copper Fox Lane Midland, Va. + 26 acre

pasture/barn, stalls

2. Term. Term of Lease shall be for 2 years commencing and

ending on Midnight Sept. 15, 2002. If tenant remains in

possession of leased premises with consent of Landlord after

lease expiration date, Lease will convert to a month-to-month

Lease and each party will have right to terminate Lease by

giving one month’s prior written notice to other party.

(e)

3. Rent. Monthly rent for Leased Premises is $1,000.00 per

month. Payment must be paid by the 5" day of each month

at Landlord’s address. The first month’s rent is due when

Tenant signs lease. Until, Feb. 1, 2001-rent will become

$1,250.00 per. mo..

4. Security Deposit. Upon Tenant’s execution of Lease,

Tenant shall make a security deposit of $600.00 to Landlord

to ensure that Tenant complies with all terms and conditions

of Lease. If Tenant fully complies, Landlord will return

security within four weeks after date Tenant delivers

possession of Leased Premises to Landlord. If Tenant does

not comply with terms of Lease, Landlord may use security

to pay amounts owed by Tenant, including damages.

5. Default/Abatement. If Tenant defaults in payment of rent

or any other term or condition, Landlord may give Tenant

_ written notice to cure default. If Tenant fails to cure default

within 10 days of receiving notice, Landlord may terminate

Lease, enter Premises, and remove Tenant occupants and

their possessions.

If Tenant abandons or vacates Leased Premises during Term

of Lease, Landlord may re-enter Premises, without liability

for prosecution of owing damages to Tenant, and relet leased

Premises. If Landlord elects not to relet Premises, Tenant

shall be liable for remainder of rent due under Lease until its

expiration. If Landlord relets Leased Premises but is unable

to relet the Premises for as much rent as would have been

paid by Tenant during period between Tenant's

abandonment and end of Term, Tenant shall be liable to

Landlord for difference. Landlord may dispose of property

left by Tenant after abandonment without liability and apply

(e).

proceeds to reduce such difference.

6. Occupants. The Lease Premises shall be occupied by the

following persons only: The Tenant and his immediate

family. 3 persons, 2 dogs

No other persons shall occupy Leased Premises without

advance written consent of Landlord. Authorized occupants

may only use Premises for residential purposes and not for

commercial or business purposes.

7. Repairs. Tenant must take good care of Leased Premises

and all equipment and fixtures contained herein. Tenant is

liable for damages caused by his acts or neglect and any acts

or neglect of his family or guests. Tenant must make all

repairs and replacements resulting from his act or neglect. If

tenant fails to make needed repairs or replacements,

Landlord may and add expenses to rent. Landlord is liable

for any major maintenance work not resulting from Tenant’s

acts or neglect.

8. Partial or Total Destruction of Leased Premises. If Leased

Premises are partially damaged or completely destroyed by

fire or other occurrence that is not caused by Tenant's

negligence or willful act (or Tenant's family or guests),

Landlord: (1) repair or rebuild Leased Premises during

period of untenantability and abate rent proportionally for

this period; or (2) not repair or rebuild Leased Premises,

terminate Lease and prorate rent up to time of damage.

9. Alterations. Tenant must obtain Landlord’s prior written

consent to paint or wallpaper Leased Premises or install

paneling, flooring, partitions, railings or make any other

(e).

alterations. Tenant must not alter plumbing, ventilation, air-

conditioning, heating or electrical systems. All alterations,

installations, and improvements become property of

Landlord when completed and paid for, and shall be

surrendered as part of Leased Premises at end of term.

Landlord is not required to pay for work perfomed under

this section unless he has agreed to pay as indicated in his

prior written consent.

10. Maintenance of Leased Premises. Tenant shall, at

Tenant’s expense, maintain premises in a clean and sanitary

condition. At the end of term, Tenant will leave Leased

Premises clean and in good condition, with exception of

ordinary wear and tear. Tenant shall remove all belongings

and surrender keys to Landlord upon expiration of Lease.

11. Assignment/Subletting Restrictions. Tenant may not

assign agreement or sublet Leased Premises without prior

written consent of Landlord. Assignment, sublease or other

purported license to use Lease Premises by Tenant without

Landlord’s consent shall be void and terminate Lease.

12. Utilities/Services. Tenant is responsible for payment of

all utilities and services.

13. Landlord’s Right to Enter. Landlord may, at reasonable

times, enter Leased Premises to inspect, make repairs or

alterations or to show to potential buyers, lenders, or tenants.

14. Pets. Tenant may not keep pets in Leased Premises.

15. Laws and Regulations. Tenant must, at Tenant's expense,

comply with laws, regulations, ordinances and requirements

(e)

of municipal, state and federal authorities effective during

term of lease, pertaining to use of premises. Tenant must not

do anything that increases Landlord’s insurance premium.

16. Legal Fees. The successful party in legal action or

proceeding between Landlord and Tenant relating to non-

payment of rent or recovery of possession of leased Premises,

may to extent legally available, recover reasonable legal fees

and costs from unsuccessful party.

17. Inspection Prior to Occupancy. Tenant has inspected

Leased Premises and agrees that Premises, and all

improvements, are in good, habitable condition at the time

lease is being signed.

18. Subordination. This Lease and Tenant's leasehold

interest, is and shall be subordinate, subject and inferior to

any and all liens and encumbrances now and thereafter

placed on Leased Premises, by Landlord, any and all

extensions of liens and encumbrances and all advances paid

under liens and encumbrances.

19. Binding Obligations. This Lease agreement is binding on

Landlord and Tenant and those who lawfully succeed their

rights or take their place. Tenant and Landlord have read

lease and all promises made by parties are contained in this

lease.

This lease is effective when Landlord delivers a copy signed

by all parties to the Tenant. Parties have above signed this

| agreement in duplicate the day and year written above.

(e)

B.C. + S. M. Butler _ (S) S. M. Butler

Landlord (S) B. C. Butler

(S) David Pricer

Tenant

(S) Gwen R. Pricer

(e).

Twentieth Judicial District

of Virginia

Charles B. Foley, Judge Sandra K. Ramey, Clerk

General District Judge Telephone (540) 347-8627

Fax (540) 347-5756

Commonwealth of Virginia

General District Court of Fauquier County

6 Court Street

Warrenton, Virginia 20186-3299

March 9, 2001

S. Crisler Lindsay, Esquire

311 Park Avenue

Culpeper, Virginia 22701

Michael M. Palmer, Esquire

87 Lee Highway, Suite 23

Warrenton, Virginia 20186

Re: Butler vs. Pricer - V00-2259

Dear Gentlemen,

The above captioned matter was heard in this Court

on March 2, 2001. The Court, at that time, took the matter

under advisement to review the exhibits filed, the trial

testimony, the argument of counsel and the applicable law.

To say this is a complex matter would be a gross

understatement.

This trial was begun by the filing of an Unlawful

Detainer action on December 28, 2000 alleging the

(e).

Defendants were in default for unpaid rent in the-amount of

$500.00. To determine whether the rent claim is valid, the

Court must first examine the lease agreement dated

September 15, 2000. The Court finds that the lease

agreement was signed by the Plaintiffs and delivered to the

Defendants. There is disagreement as to whether or not the

lease was ever received back by the Plaintiffs, but in reality,

because of the parties’ actions the disagreement is of no

consequence. The first critical question or issue is whether or

not the lease agreement falls under Chapter 13 of the Code

of Virginia commonly referred to as the statuary Common

Law Landlord and Tenant Act or whether it falls under Chapter

13.2, the Virginia Residential Landlord and Tenant Act. If, in

fact, the Plaintiffs own in their name more than 10 single-

family residences, then the Virginia Residential Landlord

Tenant Act would apply.

Mrs. Butler, upon being cross-examined by counsel

for the Defendants stated she managed 22 properties.

However, there was no discussion further regarding the type

or location of those units. Without knowing whether 10 of

these would qualify as single family residences the Court

cannot determine that the more comprehensive act applies.

Therefore, the Court must follow Chapter 13. The Court

surmises that this lease agreement most likely should be

resolved under the requirements of the Virginia Residential

Landlord Tenant Act, under which neither the Plaintiffs or the

Defendants have followed the applicable statuatory rules

regarding notice of default or payment of rent into court.

Therefore, the Court, unfortunately, cannot address the valid

issues of a landlord’s warranty of habitability and retaliatory

conduct.

(e).

The Court now must address the initial basis for the

court action. First the Court would find that no proper 5-day

pay or quit notice as required by statute was given the

Defendants by the Plaintiffs. The testimony at trial

established that the total rent due was paid in full through

November of 2000, even though the parties varied the time

and amount of payment as established in the written lease. It

was agreed that the Defendants never paid one-half of the

agreed security deposit. This, in and of itself, can be

considered a breach of the lease. However, this was not a

basis for the institution of legal proceedings, but was

developed at trial through the sworn testimony.

It was established that a fire at an adjoining property

terminated the electrical service to the dwelling house and

that shortly thereafter water service to the Defendants was

likewise eliminated. The Court believes that the inability of

the Plaintiffs to reasonably restore electricity and water to

the Defendants could create a constructive eviction situation

where rent could be abated. This would be true provided the

Court was also convinced the Defendants didn’t in anyway

hinder the Plaintiffs in their efforts to repair the problem.

It was argued that the Court should apply Paragraph

8 of the lease in favor of the Plaintiffs and rule that, in effect,

the leased premises used as a dwelling was sufficiently

damaged so that there would be no duty to repair by the

Plaintiffs. This provision normally relates to damage directly

to the principle dwelling. In this case the damage was such

that the dwelling, in the Court’s opinion was uninhabitable

under 21* century standards. The Plaintiffs given sufficient

time could remedy these problems. However, governmental

requirements could override the reasonable time to repair

(e).

standard in this type of case.

The Court, in conclusion, believes there has been a

default by both the Plaintiffs and the Defendants. The

Defendant's breach involves the failure to comply with the

security deposit requirement, and the Plaintiff's breach relate

to their unwillingness to promptly restore the utilities to the

dwelling house. Therefore, the Court finds that the lease

agreement should be terminated, that all rent should be

abated, that no counsel fees should be allowed and the

Defendants are directed to vacate the premises on or before

April 15, 2001. Counsel should advise their respective clients

of their statuary right of appeal and the Clerk of this Court is

directed to remove this case from the docket.

Respectfully yours,

(S) Charles B. Foley

Charles B. Foley, Judge