08 Aug Virginia: Pleas in Bar – A Lawyer’s Reversal
On August 1, 2019, Virginia Supreme Court opined on Pleas in Bar, reversing and remanding jury verdict for Plaintiff because of the judge denying Defendant jury trial on its Plea. First, “because [Defendant] had an outstanding plea in bar filed in response to the previous pleading that had been held over for an ‘evidentiary hearing’ and was not specifically directed to refile its special plea, the circuit court erred in finding that [Defendant] waived its plea by not refiling it.” Id. at 8. Second, a plea in bar need not be heard pre-trial or even by hearing separate from trial, id.; and Defendant “was entitled to rely upon the demand for a jury trial made by [Plaintiff] as to all issues in controversy between them,” so Defendant did not waive its right to jury trial by not making a “duplicate jury demand”. Id. at 10-11. Virginia Supreme Court declined to address the adequacy of Defendant’s proffered plea jury instruction, because the judge never reached the same on the merits. Id. at 11. Reversal and remand was limited to only the statute of limitations issue raised by the Plea, thereby excluding the jury’s finding of fraud against Defendant. The case is Ferguson Enters., Inc. v. F.H. Furr Plumbing, Heating and Air Conditioning, Inc., No. 171192.