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Judge Higgins: Lawsuit to stop sale of Foxfield can proceed
Foxfields supporters on steps of Albemarle Circuit Court, October 2, 2017
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Foxfields supporters on steps of Albemarle Circuit Court
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Sean Tubbs | Monday, October 02, 2017 at 9:38 p.m.

A suit to prevent the sale of the Foxfield racecourse and surrounding land will move forward, after an Albemarle County Circuit Court judge indicated that the former owner intended in her will for the property to be used for equestrian activities in perpetuity.

“She could not have made her language any stronger,” said Judge Cheryl V. Higgins just before denying a request from the Foxfield Racing Association to dismiss a case filed last December to prevent any sale of the racecourse and surrounding land.

Seven Albemarle residents with connections to Foxfield claim the will of the late landowner, Mariann S. de Tejada, called for the land to remain intact so the Foxfield Races could remain in operation. Races began on the land off Garth Road in 1978.

The attorney for Foxfield Racing Association argued that de Tejada’s will did not explicitly specify that a trust was to have been established.

Article II of the will states de Tejada intended to “devise and bequeath simple fee title to such lands, improvements, equipment, tools and supplies to the Foxfield Racing Association.”

“‘Fee simple’ gives the recipients complete dominion over the property,” argued F. Douglas Ross, an attorney with Odin, Feldman & Pittleman. He also argued that de Tejada was clearly aware of how trusts work because she referenced another one elsewhere in the will.

“What we believe is that the language of the will does not rise to the level of creating a trust or placing restrictions,” Ross said.

Judge Higgins asked Ross if he thought de Tejada’s intentions were being honored now that Thomas Dick is the sole remaining member of the Foxfield Racing Association’s board of directors. His brother, Benjamin Dick, is named in the will as one of two executors, but he died in 2015.

“Did she intend for a total stranger to sell the property?” Higgins asked.

“I don’t think we can fully know what was going on in her mind,” Ross responded.

William H. Hurd, an attorney with the firm Troutman Sanders, argued on behalf of the plaintiffs that the word “trust” did not have to be used to establish what de Tejada wanted. He read aloud the first page of her will to argue her intent was clear.

“I have but one wish for the remainder of my lifetime and after my death, and that is to apply all my time, energies and financial resources to the perpetuation of Foxfield Races in Albemarle County for the recreation, education and enjoyment of the people of Albemarle,” de Tejada wrote in 1983, the time when the will was signed.

“That is clearly an intent to create a trust,” Hurd said, adding that Article IV of the will lays out how her “residuary estate” was to be bequeathed to the Foxfield Racing Association which was to have been a nonprofit, nonstock corporation. The will states that “no part of the net earnings of the corporation shall inure to the benefit of any private individual.”

Hurd also pointed out that the will calls for de Tejada to be buried on the property and said that should also demonstrate her intent for the land.

In a separate hearing, Higgins also allowed the plaintiffs in the case to submit arguments to intervene before a 5.65 acre parcel of land on Pantops owned by the Foxfield Racing Association is sold.

Hurd argued his clients do not object to the sale but want to ensure that any proceeds go to support operations at Foxfield.

The undeveloped property is currently under contract to be purchased by the Building Management Company at the agreed-upon price of $120,000. The 2017 assessment for the land is $190,600 and Hurd said his clients want an appraisal to be made.

“We do object to a fire sale,” Hurd said. “We don’t want this money going in to [Thomas Dick’s] pocket until this is all settled.”

Ross argued the land should have been sold shortly after de Tejada’s death in December 1983 but was not. He claimed the plaintiffs would not have been able to intervene then, and they should not be allowed to do so now.

Higgins granted the plaintiffs the right to intervene.

“The land is not clearly a separate issue,” she said.

No dates have been set for the next hearing in the case.
 

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