One of the delightful aspects of practicing law in Virginia is that we still get to use antiquated legal terms that most states stopped using a century or so ago. Where a lawyer might file a motion to dismiss in some states, here we file a “demurrer” or a “plea in bar.” Rather than move for a directed verdict or judgment as a matter of law at the close of the plaintiff’s evidence at trial, we make a “motion to strike.” Until relatively recently, we weren’t even initiating lawsuits with complaints; we were filing “motions for judgment” instead. In today’s blog post, I’m going to tell you about a fun little motion we call a “motion craving oyer.”
A motion craving oyer sounds a lot more exotic than it is. To “crave oyer” is simply to demand production of a written instrument when a plaintiff files a lawsuit based on that instrument but fails to attach a copy to the complaint. It’s based on the idea that a court can’t rule intelligently on a claim without having the opportunity to see all essential documents upon which the claim is based. “When a court is asked to make a ruling on any paper or record, it is its duty to require the pleader to produce all material parts.” (Culpeper National Bank v. Morris, 168 Va. 379, 382-83 (1937)). Motions craving oyer should be granted, however, only where the missing documents are essential to the claim. (Byrne v. City of Alexandria (Va. Sup. Ct. May 28, 2020)). These motions can be useful when a defendant may have defenses to a lawsuit that aren’t apparent without examining the instrument in question. If oyer is granted, the instrument becomes part of the complaint and a defendant can proceed to file other responsive pleadings that may be appropriate.
The most common application over the years has been to use a motion craving oyer to demand production of a written contract in situations where a plaintiff files a breach of contract action but fails to include a copy of the contract. Sometimes a defendant knows there are provisions in the contract that are inconsistent with the plaintiff’s allegations, so it can be helpful to require the actual agreement to be incorporated into the terms of the complaint. Until the Virginia Supreme Court’s decision in Byrne v. City of Alexandria a couple of months ago, it wasn’t altogether clear that this was a legitimate practice. Motions craving oyer have a muddled history in Virginia that has led to a lot of confusion regarding appropriate uses.
The Virginia Supreme Court first noted the limitation on the use of motions craving oyer in 1895, when it limited oyer to the production of “deeds and letters of probate and administration” and not just any written document mentioned in the complaint. (See Langhorne v. Richmond R. Co. & Another, 91 Va. 369 (1895)). In a 1916 case, the Virginia Supreme Court allowed a motion craving oyer to require the production of a lease agreement, but commented that the practice was “unusual” and was apparently only permitted because all parties consented to the practice. (See Smith v. Wolsiefer, 119 Va. 247 (1916)). In 1937, the court allowed oyer to the entire record of a former suit where only a small part of the record had been attached to the complaint. (See Culpeper Nat’l Bank v. Morris, 168 Va. 379 (1937)). More recently, motions craving oyer have been used for ordinary contracts, but in the cases that reached Virginia’s highest court, production of the written contract was unopposed in most if not all of these cases.
Motions craving oyer became fairly widespread in Virginia after the Virginia Supreme Court’s 1997 decision in Ward’s Equipment, Inc. v. New Holland North America, Inc., which seemed to approve of the practice in connection with ordinary contracts:
When a demurrant’s motion craving oyer has been granted, the court in ruling on the demurrer may properly consider the facts alleged as amplified by any written agreement added to the record on the motion. Hechler Chevrolet, Inc. v. General Motors Corp., 230 Va. 396, 398, 337 S.E.2d 744, 746 (1985). Furthermore, and significant in this appeal, a court considering a demurrer may ignore a party’s factual allegations contradicted by the terms of authentic, unambiguous documents that properly are a part of the pleadings. See Fun v. Virginia Military Institute, 245 Va. 249, 253, 427 S.E.2d 181, 183 (1993).
(Ward’s Equip., Inc. v. New Holland N. Am., Inc., 254 Va. 379, 382–83, 493 S.E.2d 516, 518 (1997)).
But as noted by Fairfax Circuit Court Judge Gardiner in Amar v. Jefferson Green Unit Owners Ass’n, Inc. back in February, the motion craving oyer in Ward’s Equipment was unopposed. The Virginia Supreme Court did not expressly rule that, had it been opposed, a motion craving oyer would have been appropriate. While motions craving oyer have been used by Virginia lawyers for years to get plaintiffs to attach copies of contracts to their complaints, Judge Gardiner noted that the Virginia Supreme Court might not approve of the practice:
In sum, in its most recent expression of the law, the Supreme Court has approved the use of oyer: for deeds (when the party pleading relies upon the direct and intrinsic operation of the deed); for “specialties” (contracts under seal); letters of probate and administration; where the parties agreed to the use of oyer; and for a complete record where the plaintiff had attached to the complaint only a small part of the record of a former suit.
The Virginia Supreme Court put those doubts to rest on May 28, 2020, when it decided Byrne v. City of Alexandria. Motions craving oyer are no longer limited to forcing the production of deeds, writs, bonds, letters of probate and administration and other “specialties” (referring to documents under seal). Any time a litigant is sued on a claim based upon a written document mentioned in a claimant’s pleading and essential to the claim but not made a part of the record, a motion craving oyer is appropriate.