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No personal liability in dirt-dumping case

Where plaintiff alleges that defendant trucking company breached a contract by dumping excessive amounts of dirt on her property, the trucking company’s owner cannot be held personally liable for damages.

Further, under the “source of duty” rule, plaintiff cannot maintain fraud claims while suing for breach of contract.


Plaintiff and defendant agreed that defendant could deposit dirt on plaintiff’s property to stabilize the land and a fence. While plaintiff was away, defendant deposited more than 100 truckloads of dirt on her land.

Plaintiff says this far more dirt than necessary. Some spilled over to her neighbor’s property and county-owned land. The deposits covered more than 11,000 square feet. The county has issued plaintiff a citation. Plaintiff claimed her property was damaged. She sued the trucking company, a limited liability corporation, and Pereira, its owner and principal.

Before the court are defendant’s demurrers relating to Pereira’s personal liability and plaintiff’s actual and constructive fraud claims.

Personal liability

“Mr. Pereira cannot be held personally liable for the acts of the LLC by merely being a member of the LLC. … When an LLC member is acting solely as a member and agent of the LLC, he has no personal liability for liabilities of the limited liability company. …

“At all relevant times Mr. Pereira was acting as a managing member and agent of E Trucking. Plaintiff does not allege that Mr. Perira offered – on his own behalf – to provide the dirt. Rather, all advertisements were clearly that of E Trucking.

“Because Defendant E Trucking is a limited liability company, its members, managers, and agents can have no ‘personal obligation’ for the liability of E Trucking solely by virtue of a position as member, manager, or agent, even when the alleged liability arises from a tort.”

Fraud claims

“Plaintiff’s actual fraud allegation is barred by the source of duty rule because it merely claims a misrepresentation of the performance of Defendants’ contractual duty (to deliver the appropriate amount of dirt). Misrepresentations that relate to a ‘duty or an obligation that was specifically required’ by a contract ‘do no give rise to a cause of action for actual fraud.’ …

“Because Defendants’ duty arose solely by virtue of the parties’ contract, Plaintiff cannot maintain a cause of action for both breach of contract and fraud.

“Similarly, Plaintiff’s constructive fraud allegation fails as the Supreme Court of Virginia has made clear that a promise of future action cannot support a claim for constructive fraud. … The rationale underlying this rule is similar to the rationale stated above: ‘If unfulfilled promises, innocently or negligently made, were sufficient to support a constructive fraud claim, every breach of contract would potentially give rise to a claim of constructive fraud.’ …

“Plaintiff failed to sufficiently allege facts showing that Defendant negligently or innocently misrepresented a present or preexisting material fact at the time the promise was made. Rather, Plaintiff merely alleged that Defendant promised to – in the future – deliver free dirt to Plaintiff. There is no allegation of active misrepresentation by Defendants; instead, Plaintiff simply alleges an unfulfilled promise. As such, Plaintiff failed to plead a valid cause of action for constructive fraud.”

The demurrers are sustained without leave to amend.

Vega v. E Trucking & Services, LLC, et al. CL-2019-11356, Dec. 4, 2019; Fairfax Cir. Ct. (Smith). Stephen J. Stine, Scott Surovell for the parties. VLW 019-8-113, 5 pp.

VLW 019-8-113