Can a Virginia defendant in general district court file a demurrer to challenge whether the plaintiff has even stated a legal claim, or is that only available in circuit court?

Plain-English summary

A demurrer is a defense tool that says, in effect, "even if everything the plaintiff alleges is true, those facts don't add up to a legal claim, so the case should be thrown out." In Virginia circuit court, demurrers are routine. But district court practitioners had long debated whether the same tool was available in Virginia's general district courts, which handle smaller civil claims with simpler procedures.

Delegate Scott Surovell asked the Attorney General for a clean answer. Herring's conclusion was that Va. Code § 8.01-273 authorizes written demurrers "[i]n any suit in equity or action at law," and "any" means any: circuit court or general district court.

Herring did flag one procedural wrinkle. General district court cases often start with a one-page "warrant" using forms from the Supreme Court of Virginia. Those forms can be too sparse to support a meaningful demurrer because the defendant can't tell what the plaintiff is actually claiming. The fix: either party can ask the judge to order the plaintiff to file a written bill of particulars under Va. Code § 16.1-69.25:1, which fleshes out the claim. Once the claim is more detailed, the defendant can demur if appropriate.

The opinion also noted that a demurrer (which tests legal sufficiency) is distinct from a motion to strike an insufficient bill of particulars (which tests factual sufficiency).

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law and the Rules of the Supreme Court of Virginia before relying on any specific procedure mentioned here.

Common questions

What is a demurrer in plain English?

It's a written motion saying the other side's complaint doesn't state a legal claim, even taking all the facts they allege as true. If granted, the case (or a count of it) gets dismissed without a trial on the merits.

Why was there confusion about whether GDC allowed demurrers?

The district court statutes (Title 16.1) don't specifically mention demurrers. Some practitioners read that silence as a prohibition. Herring rejected that, because § 8.01-273 says "any suit in equity or action at law," and the Code definition of "action" and "suit" includes both circuit and district court proceedings.

What if the GDC complaint is a one-page form warrant?

Herring noted that those forms often won't give a defendant enough information to demur. The remedy is to request a bill of particulars under § 16.1-69.25:1, then demur once the plaintiff fleshes out the claim.

Does the AG's opinion bind district court judges?

No. AG opinions are persuasive authority, not binding precedent. Judges remain free to reach their own conclusions, but this opinion is the most explicit statement of the AG's position on the question.

Background and statutory framework

Section 8.01-273 of the Code of Virginia is the demurrer statute. It says any contention that a pleading does not state a cause of action "may be made by demurrer" and that "all demurrers shall be in writing." The statute does not limit itself to any particular court.

Section 8.01-2(1) defines the terms "action" and "suit" to include "all civil proceedings whether upon claims at law, in equity or statutory in nature and whether in circuit courts or district courts." That broad definition is what carried the day in Herring's analysis.

General district court procedure is found in Title 16.1, particularly Chapter 4.1. The Rules of the Supreme Court of Virginia that govern GDC practice (Rules 78:2 and 78:3) deal with pleadings but do not mention demurrers, neither authorizing nor prohibiting them. Herring read the absence of any prohibition, combined with the broad reach of § 8.01-273, as authority to demur.

For form warrants, § 16.1-79 authorizes the use of streamlined forms to initiate civil actions in GDC. Because these forms are often too thin to give the defendant fair notice, § 16.1-69.25:1 lets the court order a bill of particulars to "amplify any pleading."

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. § 8.01-273 (demurrer statute)
• Va. Code Ann. § 8.01-2(1) (definition of "action" and "suit")
• Va. Code Ann. § 16.1-69.5(d) (definition of "district court")
• Va. Code Ann. § 16.1-69.25:1 (bill of particulars in GDC)
• Va. Code Ann. § 16.1-79 (form warrants in GDC)
• Va. Sup. Ct. R. 3:7 (bill of particulars in circuit court)
• Va. Sup. Ct. Rs. 78:2, 78:3 (district court pleadings)
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425 (2012)
• Commonwealth v. Amerson, 281 Va. 414, 418 (2011)
• Alger v. Commonwealth, 267 Va. 255, 261 (2004)
• Barr v. Town & Country Props., Inc., 240 Va. 292, 295 (1990)
• Thompson v. Skate Am., Inc., 261 Va. 121, 128 (2001)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/14-078_Surovell.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

February 4, 2015

900 East Main Street
Richmond, Virginia 23219
804-786-2071

The Honorable Scott A. Surovell
Member, House of Delegates
Post Office Box 289
Mount Vernon, Virginia 22121

Dear Delegate Surovell:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-205 of the Code of Virginia.

Issue Presented

You inquire whether § 8.01-273 of the Code of Virginia authorizes demurrers in general district courts or only in circuit courts.[1]

Applicable Law and Discussion

Pursuant to § 8.01-273, "the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted may be made by demurrer." Section 8.01-273 expressly provides that such contention can be made "[i]n any suit in equity or action at law," but that "[a]ll demurrers shall be in writing . . . ." You ask whether this provision permits a written demurrer to be filed in general district courts as well as circuit courts.

"When construing a statute, our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute[;]"[2] and "[w]e 'assume that the legislature chose, with care, the words it used when it enacted the relevant statute.'"[3] Although § 8.01-273 makes no specific reference to district court proceedings, the terms "action" and "suit" generally include "all civil proceedings whether upon claims at law, in equity or statutory in nature and whether in circuit courts or district courts."[4] I find no provision that otherwise would limit the use of demurrers to circuit courts.[5] Accordingly, I conclude that § 8.01-273 authorizes a written demurrer to be filed in any civil action, whether in a circuit court or a general district court.

I note that the attendant procedure for filing a demurrer in a district court case may differ slightly from that in a circuit court case. Unlike a circuit court case, which is initiated by filing a complaint that must "state the facts on which the plaintiff relies" and will be "sufficient" only if it "clearly informs the defendant or defendants of the true nature of the claim asserted," a general district court case also may be initiated by a plaintiff's filing a warrant,[6] often based on forms provided by the Supreme Court of Virginia.[7] In some instances, given the limited information they convey, these form warrants may not provide a valid basis upon which a defendant could demur. Nevertheless, either party may request that the judge "direct the filing of a written bill of particulars"[8] in order "to amplify any pleading that does not provide notice of a claim or defense adequate to permit the adversary a fair opportunity to respond or prepare the case."[9] Once the claim supplies sufficient facts, the case may be in a posture in which a defendant could challenge the factual allegations against him as failing to state a claim upon which relief may be granted by filing a demurrer.[10] Accordingly, it is clear that even in a general district court case, a demurrer is an available responsive pleading that allows the defendant to test the legal sufficiency of the claims asserted by the plaintiff.

Conclusion

Accordingly, it is my opinion that a demurrer can be filed in both general district courts and circuit courts to challenge the legal sufficiency of a cause of action.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] I note that a demurrer also may be filed in a criminal case. Because your inquiry is about demurrers in civil cases pursuant to § 8.01-273, this Opinion will presume your question is limited to only civil cases pending in general district courts.

[2] Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418 (2011)) (further citation and internal quotation marks omitted).

[3] Alger v. Commonwealth, 267 Va. 255, 261 (2004) (quoting Barr v. Town & Country Props., Inc., 240 Va. 292, 295 (1990)).

[4] VA. CODE ANN. § 8.01-2(1) (Supp. 2014). I note that "district court" is defined to include both general district courts and juvenile and domestic relations district courts. VA. CODE ANN. § 16.1-69.5(d) (2010).

[5] This includes a survey of Title 16.1, particularly Chapter 4.1, which contains provisions specifically applicable to district court procedures, and the procedural standards set forth in Rules of the Supreme Court of Virginia. Nothing in Title 16.1 limits or restricts the pleadings permitted in general district courts, and neither of the Rules pertaining to district court pleadings addresses demurrers. See VA. SUP. CT. Rs. 78:2 (permitting a court to award a party summary judgment if the opposing party does not file a pleading as ordered by the judge presiding over the case) and 78:3 (defining general provisions as to pleadings, but not discussing demurrers).

[6] Section 16.1-79 (2010).

[7] See General District Court Civil Forms, VIRGINIA'S JUDICIAL SYSTEM, available at http://www.courts.state.va.us/forms/district/civil.html (last visited Dec. 1, 2014).

[8] Section 16.1-69.25:1 (2010).

[9] VA. SUP. CT. R. 3:7(a). Although this definition is from the Rules that are specifically applicable only in circuit court cases, the use of bills of particulars in the general district courts serve the same function. There is no statute or Rule that defines a bill of particulars used in a general district court case differently than one used in the circuit courts.

[10] I note that a demurrer is distinct from a motion to strike an insufficient bill of particulars. See VA. SUP. CT. R. 3:7(b). An insufficient bill of particulars "fails to inform the opposing party ... of the true nature of the claim." By contrast a demurrer tests the legal sufficiency of the claims stated in the pleadings, not the factual sufficiency. Thompson v. Skate Am., Inc., 261 Va. 121, 128 (2001). The question raised in a demurrer is "whether the facts thus pleaded, implied, and fairly and justly inferred are legally sufficient to state a clause of action against the defendant." Id.