
    CIRCUIT COURT OF THE CITY OF CHESAPEAKE
    Stitches of Virginia, Inc. v. Greenbrier Mall Venture
    October 25, 1988
    Case No. (Law) 22582-MDJ
   By JUDGE RUSSELL I. TOWNSEND, JR.

This motion for declaratory judgment is pending on a demurrer filed by the defendant challenging the appropriateness of the proceeding under Virginia law.

The court has carefully considered the petition, including the attached lease agreement, as well as the submissions and oral argument of counsel. It is the opinion of the Court that the demurrer should be sustained. The Court concludes that petitioner has an adequate remedy at law and further that petitioner has failed to establish by its pleading the existence of an actual justiciable controversy appropriate for resolution by declaratory judgment.

The petition does not allege or reflect the need for construction of an uncertain or ambiguous instrument but merely seeks recovery of a sum certain and the assistance of the Court in determining if certain demands for rent and other charges under the lease are accurate determinations of the sums due. Such request for assistance amounts to something less rather than something more than an actual controversy. In essence, the petitioner seeks an advisory opinion which is not the business of the courts. To the extent the parties have an actual disagreement, their rights and obligations have matured and damages, if any, have already accrued. The court by declaratory judgment could only determine proper rents and charges as of a past date but could not by any general declaration of the rights and obligations of the parties preclude future disagreements as the factors to be applied in determining any such rents and charges are constantly subject to change.

It is the determination and application of uncertain facts to the provisions of the lease which plaintiff seeks in this action for declaratory judgment and not a general interpretation of the provisions of the lease which would guide the parties in their future conduct. Therefore, the Court has concluded that relief by declaratory judgment is inappropriate and declines jurisdiction. As a closing comment, the Court would note that the petitioner may not have a ready means of determining if the rents and charges demanded by the defendant are accurate and as a result may not know if any actual controversy even exists. However, the contract could have provided an appropriate method for verification and the petitioner cannot substitute an accounting by the court for the lack of such a provision.  