United States District Court, W.D. Virginia, Abingdon Division
R. Minor, Elliott Lawson & Minor, Bristol, Virginia, for
Michael A. Bragg, Bragg Law, Abingdon, Virginia, for
OPINION AND ORDER
P. Jones United States District Judge
a diversity action under Virginia substantive law for breach
of contract and fraud arising from an alleged agreement to
operate a drive-in movie theater. The defendant has filed a
Motion to Dismiss for failure to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). For the reasons
that follow, I will deny the defendant's Motion to
Dismiss as to the plaintiff's claims for breach of
contract and grant the defendant's Motion to Dismiss as
to the claim asserting fraud.
Complaint alleges the following facts, which I must accept as
true for the purpose of deciding the present motion.
defendant, William Booker, is the owner of the Moonlite
Theater (hereinafter “the Moonlite”), a drive-in
movie theater located in this judicial district. In September
2016,  the plaintiff, Kyle Blevins, and Booker
entered into a handwritten agreement (hereinafter “the
Handwritten Agreement”) that stated as follows:
Agreement between William Booker & Kyle Blevins
We agree to together join in a partnership to restore and
reopen the Moonlite Theatre in Abingdon, VA.
Kyle Blevins will provide all funds to restore &
refurbish all buildings and grounds, & operate
William Booker will provide property as his contribution
to the partnership.
As an act of good faith Kyle Blevins will begin
construction and at the point it is open for business and the
first movie shown, William and Kyle will execute a
partnership agreement upon this.
Kyle Blevins will have 51% ownership and William Booker
will have 49% of the real este [sic] & business.
Kyle will operate business and give William 49% of net
Other considerations will be included in the formal
agreement to follow.
Attach. 1-2, ECF No. 1-1. Both Booker and Blevins signed the
bottom of the document.
the parties signed the Handwritten Agreement, Blevins began
restoring and refurbishing the Moonlite pursuant to the
Agreement; eventually, the Moonlite was opened to the public,
and the first movie was shown. In performing this work,
Blevins purchased equipment, provided labor, and solicited
donations of time and money from members of the community. He
also paid an attorney to draw up documents for the formation
of a new limited liability company named, “Historical
Moonlite LLC.” Ultimately, Blevins spent more than $20,
000 on this endeavor. Compl. ¶¶ 11-12, ECF No. 1.
the Moonlite showed its first movie - the point at which the
Handwritten Agreement called for the execution of a
“partnership agreement” - Booker declined to sign
the documents for “Historical Moonlite LLC.” He
refused to convey the real property on which Moonlite was
located and later engaged a realtor to sell the property.
Booker also forbade Blevins from entering the property.
Eventually, the Moonlite closed and was subsequently
vandalized. Id. at ¶¶ 13-14.
March 17, 2017, Blevins brought this action against Booker
for breach of contract and fraud. Blevins seeks specific
performance of the Handwritten Agreement (Count One). He also
seeks either money damages for breach of contract or
restitution under a theory of unjust enrichment (Count Two).