Motions Craving Oyer: A Powerful, but Limited Tool in Virginia Practice
While its name may suggest it is a vestige of Virginia’s legal history, a motion craving oyer remains a powerful, but limited tool in Virginia practice.
When a plaintiff sues based on a written contract or other document but fails to attach it to his complaint, a defendant should consider “craving oyer” of the document. “[A] motion to crave oyer is a request of the Court to require that a document sued upon, or a collateral document which is necessary to the Plaintiff’s claim, be treated as though it were part of the Plaintiff’s pleadings.” Ragone v. Waldvogel, Poe and Cronk Real Estate Group, Inc., 54 Va. Cir. 581, 582 (Roanoke City 2001). “[A] defendant can crave oyer of all documents that form the basis of the Plaintiff’s claim.” Sjolinder v. Am. Enterprises Solutions, Inc., 51 Va. Cir. 436, 437 (Charlottesville 2000); Station # 2, LLC v. Lynch, 75 Va. Cir. 179, 190 (Norfolk 2008); Backwell v., City of Norfolk, 59 Va. Cir. 205, 207-08 (Norfolk 2002).
A motion craving oyer is useful when, for example, a provision in a contract is dispositive and the plaintiff’s allegations in his complaint are inconsistent with that provision. The provision might relate to payment terms or the contract’s terminability at-will with written notice, for example. If the Court sustains the motion craving oyer, the written document will be considered as part of the plaintiff’s complaint. This can be useful if the motion craving oyer is filed in connection with a demurrer (Virginia’s equivalent of a motion to dismiss) seeking to dismiss all or part of the plaintiff’s claims.
An exhibit to a plaintiff’s complaint (or one for which a motion craving oyer has been granted) that contradicts the complaint’s allegations may be considered on demurrer. Wards Equipment, Inc. v. New Holland North America, Inc., 254 Va. 379, 382 (1997) (“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.”). Not only may a court consider the written document in connection with a demurrer, the court “may ignore a party’s factual allegations contradicted by the terms of authentic, unambiguous documents that properly are a part of the pleadings.” Wards Equipment, 254 Va. at 382-83 (citing Fun v. Virginia Military Inst., 245 Va. 249, 253 (1993)). The ability to have a document considered as part of the plaintiff’s complaint in connection with a demurrer is particularly important in Virginia where summary judgment is much more limited than in Federal practice. Among other limitations, deposition testimony is not allowed to be considered in support of a motion for summary judgment. See Rule 3:20 of the Rules of the Virginia Supreme Court.
The use of motions craving oyer is not unlimited, however. In a recent case, the Honorable Michael T. Garrett of the Circuit Court of Amherst County denied a motion craving oyer filed in connection with defendant’s demurrer. Johnson Senior Center, Inc. v. Dolan, 97 Va. Cir. 76 (Amherst County 2017).
In Dolan, the plaintiff asserted two claims in its complaint: breach of fiduciary duty and conversion. The plaintiff contended that the defendants spent corporate funds to pay for personal expenses unrelated to the corporation’s business purposes. The complaint further alleged that the director of the company had attempted to obtain access to certain corporate records in the possession of the defendant. The defendants filed a motion craving oyer seeking to require the corporate plaintiff to produce the corporate documents the director had requested in order to have them considered in support of their demurrer.
The court overruled the motion craving oyer. It held that motions craving oyer are limited to cases in which the cause of action depends on a particular document. The Court reasoned, “Motions craving oyer are not appropriate for documents that are merely evidentiary material,” and that “oyer is not a tool to be used for random discovery.” 97 Va. Cir. at 77. Finally, the court instructed that a motion craving oyer will be denied when the documents requested “are not so essential to the pleading that the court cannot make an intelligent construction of the pleading without the documents appended and used for contextual reference.” Id. at 78. Where the documents sought are merely “of an evidentiary nature” and, though important, are not absolutely essential to construing the complaint, oyer will not be granted. Rather, such documents are properly to be disclosed during the discovery process rather than in the pleading phase of the case. Id.
The practice pointer from these cases is that if a document is sued on by the plaintiff or is an essential part of his claim or is necessary to interpret his complaint, a motion craving oyer likely will be sustained. If, however, the document is merely evidence that supports a claim or defense, courts will likely not grant oyer as to it. It may be important evidence in the case and may be considered by the factfinder at trial, but it will not be considered by the court at the outset of the case when the court deals with any demurrer. When a defendant considers its responsive pleadings to a complaint, it will be important to analyze this distinction in weighing the merits of filing a motion craving oyer and a demurrer.