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Discovery to move forward in Foxfield case
Foxfield stickers, June 2, 2017
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Credit: Talia Wiener, Charlottesville Tomorrow
Stickers were passed out at the June 2 hearing in support of the Foxfield Races.
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Tim Dodson | Monday, June 05, 2017 at 6:29 p.m.

Attorneys involved in a lawsuit over the future use of the Foxfield property in Albemarle County will be able to collect evidence moving forward following a recent court ruling.

“Discovery is going to continue,” Albemarle County Circuit Judge Cheryl Higgins said at a hearing Friday.

At issue in the case is whether the late Mariann S. de Tejeda created a trust through her will that would ensure the continued use of the property for the Foxfield Races, which are held in the spring and the fall of each year. Foxfield occupies 179 acres off Garth Road in Albemarle’s rural area.

Tejeda wrote in her will that she wanted her estate to go to “the perpetuation of the Foxfield Races in Albemarle County.” She died in 1983.

The plaintiffs in the case are John H. Birdsall, Harry Burn, Reynolds Cowles, Landon Hilliard, Kiwi Hilliard, John G. Macfarlane III, Dudley Macfarlane and Jack Sanford Jr.

As local residents and horseracing enthusiasts, they claim they are beneficiaries to a trust because Tejeda said in her will that she wanted the races to be continued for “the recreation, education and enjoyment of the people of Albemarle County and their friends and visitors of Virginia who appreciate equestrian sports, competition and related activities.”

The plaintiffs claim there are plans in the works to sell and develop the Foxfield property.

Several members of the public showed up at Friday’s hearing, many of whom were in support of the plaintiffs and wore stickers saying “Save Foxfield Races.”

The defendants — the Foxfield Racing Association and its director, Thomas Dick — argue the association is a nonstock corporation empowered to buy and sell property. Tejeda’s will bequeathed the land to the association upon her death.

The court’s ruling solely dealt with the question of whether discovery — a pretrial process through which parties collect evidence — should continue before dispositive motions in the case, including a demurrer and two motions to dismiss, are decided on. In the course of the hearing, however, attorneys for each side raised points about the future of the property.

“At the center of this controversy is the will of Mariann de Tejeda,” said attorney C. James Summers, who represented Foxfield and Dick at the hearing. He argued that the wishes expressed in the “statement of general intent” section of Tejeda’s will are “precatory” language, meaning that they do not impose a legal obligation on the Foxfield Racing Association.

Higgins asked about what would happen with the revenue of any potential sale of the property. Documents included in previous court filings indicated a variety of plans had been drawn up for subdividing the property into a development called Hermit Thrush — one of these proposals included the development of 17 lots.

Summers said the Foxfield Racing Association has “every intention to follow the wishes of de Tejeda’s will” and suggested a new nonprofit organization could be set up to promote steeplechasing.

The hearing did not fully explore what would happen if the property were sold, but the plaintiffs have alleged in court filings that Dick, who is the only member of the association’s board of directors, would personally benefit from a sale of the property.

Attorney William Hurd with the firm Troutman Sanders represents the plaintiffs.

“These assurances that were offered by counsel for Foxfield Racing Association, they are certainly at odds with the tone and tenor of the affidavit provided by Tom Dick in which he took the position that Foxfield Racing Association is a for-profit company,” Hurd said in an interview.

In an affidavit dated Jan. 16, Dick said the Foxfield Racing Association operated as a for-profit company during Tejeda’s life and has been operated as such since her death. “The Foxfield Races are not conducted for charitable purposes,” he said.

During the hearing, Summers also denied that the Foxfield property previously was the subject of a two-year real estate listing agreement between November 2014 and November 2016.

The plaintiffs included a listing agreement they said put the property on the market for $17 million that they believe was signed by the late Benjamin Dick. He was the brother of Thomas Dick and served as president of the Foxfield Racing Association prior to his death in 2015.

“This property was not for sale for two years,” Summers told the court. He pointed to a discrepancy in dates on the alleged agreement, noting that it appears Stephen McLean, of McLean Faulconer Inc. Realtors, signed the document on Feb. 4, 2017 — months after the agreement would have expired.

McLean did not return requests for comment.

“That is exactly the sort of issue that discovery is designed to resolve,” Hurd said when asked about the date of McLean’s signature. “We will be pursuing that further on discovery.”

During the hearing, Hurd said the Foxfield Racing Association was planning to “deviate from the purposes set forth in the will of Ms. Tejeda.”

He showed the court a rendering for a maximum build-out of Hermit Thrush that included a red dot marking approximately where Tejeda’s gravesite is located on the property relative to the development.

“She did not intend to be buried beneath the road of a subdivision,” Hurd said.

The parties will be back in court on Oct. 2, when the other pending motions in the case will be heard.

The Office of the Attorney General of Virginia recently notified the parties that it is “in the process of evaluating this office’s potential role in this case.”

The attorney general is tasked with enforcing charitable trusts. In a May 31 letter, the office said it understands there is an alleged charitable trust and requested materials obtained in the discovery process.

“No determination has been made but we are being diligent and taking steps to ensure the commonwealth has any and all information needed to fulfill its role with respect to charitable trusts, should that be necessary,” Michael K. Kelly, spokesperson for the Office of the Attorney General, said in an email.

Summers did not return a request for comment.

 

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