COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia
CHARLES JORDAN AND
ELAINE JORDAN
OPINION BY
v. Record No. 0681-00-2 JUDGE RUDOLPH BUMGARDNER, III
JULY 31, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Joseph E. Blackburn, Jr. (White, Blackburn &
Conte, P.C., on briefs), for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial court convicted Charles Jordan and Elaine Jordan
of maintaining a public nuisance in violation of Code § 48-3, 1
fined them $5,000 each, and ordered them to abate the nuisance.
On appeal, they contend the evidence was insufficient to prove
they owned the premises involved. 2 We agree and reverse.
1
Code § 48-3. Permitting continuation of
nuisance; presentment against premises. --
If any such nuisance be upon premises the
owner of which did not create or cause such
nuisance, but permitted its continuation,
such owner shall, for the purposes of this
chapter, be deemed responsible for such
nuisance, and if such owner be not a resident
or citizen of this Commonwealth, or one whose
residence is not known, such presentment
shall be against the premises upon which such
2
nuisance is.
The defendants also contend the trial court erred in
finding that a nuisance existed and that they permitted it to
The Commonwealth received complaints that events held at
The Marquee, a large banquet hall, created a public nuisance by
causing increased noise from traffic, car stereos, and
pedestrians yelling in the street. Cars parked illegally during
the events, and garbage littered the streets after them. The
Commonwealth also contended that certain events held at The
Marquee violated zoning restrictions.
The Marquee is located at the corner of Cutshaw and Belmont
Avenues in Richmond. Fee simple title is vested in The Marquee,
L.L.C., a properly organized Virginia limited liability company.
The defendants are the sole members of the company which has no
employees.
Individuals and organizations leased The Marquee for the
events that led to the complaints. The defendants did not
promote or host the events held at the building, and the
Commonwealth does not suggest they personally created or caused
a nuisance. It brought the proceedings against the defendants
under Code § 48-3, which makes the property owner responsible
for a continuing nuisance. The Commonwealth acknowledges it
must prove the defendants were the owners of the premises upon
which the nuisance existed.
continue, in instructing the jury that they are responsible for
the nuisances caused by patrons, in excusing certain jurors, and
in ordering abatement of the nuisance. Because we find that the
defendants did not own the premises, we do not address the other
questions presented.
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The Marquee, L.L.C. acquired fee simple title by deed of
bargain and sale dated October 7, 1996. The City of Richmond
issued a building permit to the limited liability company and
authorized it to operate the facility as a social hall. All
tax, zoning, and title records are in the name of The Marquee,
L.L.C.
The Commonwealth acknowledges that title to the real estate
is vested in The Marquee, L.L.C. but contends that the
defendants, individually, should be deemed owners of The
Marquee. The Commonwealth argues the defendants were the owners
in fact because they were the sole members in the limited
liability company, shared its profits, and represented
themselves to be the owners.
The defendants moved to strike the Commonwealth's evidence,
but the trial court ruled ownership was an issue of fact for the
jury to decide. The defendants renewed their objection and
moved to set aside the verdict. If reasonable men cannot differ
on a finding of fact, there is nothing for the jury to resolve;
the issue is one of law not of fact. Commonwealth v. McNeely,
204 Va. 218, 222, 129 S.E.2d 687, 689-90 (1963).
A limited liability company is a hybrid business
organization that has characteristics of both a partnership and
a corporation. It provides its owners the limited liability of
a corporation, but the federal income tax treatment of a
partnership. See 4B Michie's Jurisprudence, Corporations § 5,
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at 93 (1999). Organized under Chapter 12 of Title 13.1,
Corporations, a limited liability company is a separate legal
entity once certified by the State Corporation Commission that
is empowered to sue and be sued and to acquire and hold legal or
equitable title. Code § 13.1-1009. Title to real property
acquired by the company vests in the company, Code § 13.1-1021,
and a member of the company is not a proper party to a
proceeding by or against the company, Code § 13.1-1020. In this
case, The Marquee, L.L.C. was an independent legal entity that
held title to the real estate where the nuisance occurred.
Maintaining a public nuisance is an indictable offense.
Taylor v. Commonwealth, 70 Va. (29 Gratt.) 780, 784 (1878). It
is a common law offense of ancient origin. Public nuisance "was
dealt with by the machinery established for the prosecution of
crime, since no other was readily available . . . ." Rollin M.
Perkins & Ronald N. Boyce, Criminal Law 717 (3d ed. 1982).
"We have no statute defining a public nuisance or declaring
its constituents, or prescribing the form of an indictment
therefor. The offense, therefore, remains as defined at common
law, and the indictment for its commission may be framed
substantially as at common law . . . ." Tisdale v.
Commonwealth, 114 Va. 866, 868, 77 S.E. 482, 483 (1913).
"'Nuisances are of two kinds - public or common nuisances, which
affect people generally, and private nuisances which may be
defined as anything done to the hurt of the lands, tenements, or
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hereditaments of another. . . . An indictment will lie for a
public nuisance but not for a private nuisance.'" White v. Town
of Culpeper, 172 Va. 630, 636, 1 S.E.2d 269, 272 (1939) (quoting
John F. Dillon, 2 Commentaries on the Law of Municipal
Corporations § 8 (5th ed. 1911)).
Title 48, Chapter 1 establishes the procedure by which the
Commonwealth proceeds against public nuisances. It authorizes a
special grand jury to investigate a complaint of nuisance made
by five citizens, Code § 48-1, and to make a presentment against
the person who created or caused the nuisance, Code § 48-2.
Code § 48-3 makes an owner responsible for the nuisance if he
allows it to continue on the premises. If the owner is not a
resident or citizen, or cannot be located, the special grand
jury may make a presentment against the property itself. When
the proceeding against the property is in rem, anyone
"interested, or for and in behalf of the owner" may defend the
action. Code § 48-4.
Once a public nuisance is declared, it may be abated as
part of the criminal proceedings. Code § 48-5; White v. King &
M'Call, 32 Va. (5 Leigh) 726, 730 (1835). Though it is a direct
action against private property that impinges upon private
property rights, "[t]he abatement of such a nuisance for the
public safety comes under the police power of the State, and is
not a taking of private property for a public use in the sense
contemplated by the Constitution, for which compensation must be
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allowed." Jeremy Improvement Co. v. Commonwealth, 106 Va. 482,
490, 56 S.E. 224, 226 (1907). "The theory is that the owner of
an enterprise carried on for his profit by agents or servants is
liable for a nuisance . . . caused by their acts in carrying on
the enterprise." Perkins & Boyce, Criminal Law, at 717.
When placed in its ancient common law context, Code § 48-3
can only be understood to authorize prosecution of the person or
entity that holds actual title to the property on which a
nuisance continues. The sovereign's effort 3 to stop conduct that
creates a public nuisance can only be effective if directed at
the person with ultimate authority over the premises where the
nuisance exists. The person who can assert the rights,
privileges, powers, and immunities of ownership to real property
is the entity vested with title in fee simple. In this case,
The Marquee, L.L.C.
Code § 48-3 required the Commonwealth to prove the
defendants were the owners of The Marquee. The evidence proved
3
As stated in Perkins & Boyce, Criminal Law, at 897:
The development of the public-nuisance
concept was not in any sense a result of a
desire to deal harshly with the offender.
Quite the opposite, it was intended for his
protection. If every member of the community
who was annoyed by a public nuisance could
maintain an action therefor, the result would
be disastrous to the one who had caused it.
Hence, the theory was that the King, acting
for all the people, would maintain one action
which, if it resulted in a judgement against
the defendant, would call him to pay for the
damage done, in the form of a fine, and to
bring an end to the nuisance under an order
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conclusively that they were not. The trial court erred in
submitting the issue of ownership to the jury. Accordingly, we
reverse.
Reversed.
of abatement.
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