Dusting Off the Craving Oyer

In a case decided on May 28, 2020, the Supreme Court of Virginia in Byrne v. City of Alexandria, Va., 842 S.E.2d 409 (2020), revisited the old common law remedy of a motion craving oyer to clarify the scope of documents that may be required to be produced and made a part of the record. In deciding the case, the Supreme Court rejected the plaintiff’s argument asserting that the scope of documents subject to the motion is very limited.

The case involved Byrne’s request to the Board of Architectural Review (BAR) to include a Victorian “wicket and spear” fence around his home in the Old and Historic Alexandria District of the City of Alexandria.  In particular, he requested that he be permitted to include a double gate eight-foot wide opening in his fence.  The BAR approved his fencing request, but conditioned that approval stating that the proposed double gate not exceed six feet and be located in a particular location.  Byrne appealed that decision to the City Council, which unanimously affirmed the BAR’s decision.

Byrne appealed the City Council’s decision to the Circuit Court, asserting that the Council’s decision was “arbitrary, capricious, contrary to law and constituted an abuse of discretion.”  The City filed a demurrer and motion craving oyer of the legislative record that was before the City when it voted. The Circuit Court granted the motion, and after the record was filed, the Circuit Court sustained the City’s demurrer and dismissed the action with prejudice.

After recounting the early English common law, the Supreme Court observed that “the authorities agree that, at early common law, it was available only to compel the production of deeds, writs, bonds, letters of probate and administration and other ‘specialties’ (referring to documents under seal).”  Id. at     , 842 S.E.2d at 411.  However, the Supreme Court then noted, “[T]his court and its predecessor have expanded the remedy to include production of a much wider range of documents.”  Id. at     , 842 S.E.2d at 411-12.  Thus, “the motion craving oyer has been, since the early days of the common law, a remedy afforded to a litigant who has been sued on a claim based upon a written document mentioned in a claimant’s pleading but not made a part of the record,” Id. at     , 842 S.E.2d at 412.  In reaching its holding, the Supreme Court referred to a 1937 decision that held that a defendant may crave oyer of documents that form the basis of a plaintiff’s claim, because “[n]o intelligent construction of any writing or record can be made unless all of the essential parts of such paper or record are produced” and it is the duty of the court to require the “pleader to produce all material parts.”  Id. at     , 842 S.E.2d at 412-13 (citing Culpeper Nat’l Bank v. Morris, 168 Va. 379, 382, 191 S.E. 764, 765 (1937)).  Because the legislative record was central to the City Council’s decision, the Circuit Court did not err in requiring its production.

There has been some authority from trial courts that limited the types of documents that could be subject to a motion craving oyer. For example, in Amar v. Jefferson Green Unit Owners Ass’n, 104 Va. Cir. 284 (Fairfax Cty 2020) – issued on February 24, 2020 and before the Byrne decision – the Circuit Court denied a motion craving oyer based on the finding that a maintenance services contract did not fall within the “types of documents for which the Supreme Court has approved the use of oyer.”  Id. at 288.  The Circuit Court noted that the Supreme Court approved the use (and by extension, limited the use) of a motion craving 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.”  Id. at 288.

In many cases, a plaintiff, for example, will sue to recover on an insurance contract or policy, but not attach the subject contract or policy to the Complaint.  And although the plaintiff and the defendant may very well understand on which contract or policy the claim is based, the trial court does not. Therefore, to enable the trial court to rule on contract-based demurrers, motions, or pleas (for example, a contractual limitation period), the trial court must have the document before it.  After the Byrne decision, it should be clear to the bar that so long as the requested document forms the essential basis for a claim, a trial court should require the pleader to produce that document or documents.  Such production will then “serve the salutary purpose of avoiding the delay, expense and consumption of judicial resources attendant on trial preparation, trial and appeal in a case that was ill-founded in law.”  Byrne, Va. at     , 842 S.E.2d at 411.

For more information on this case, contact MMR attorney Robert Best.