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D.A. Realestate Investment, LLC v. City of Norfolk (2025)

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(11th Cir. 1987).12 Unfortunately for him, Fox did neither. Instead, he brought an inverse condemnation claim that requires a showing of “public use.” So, to the extent Fox now lacks a remedy, it is not because Virginia law is harsh; it is because he failed to timely pursue the available remedies. Last, Fox lobs only conclusory allegations about pretext. According to Fox, Norfolk is out of land after almost 300 years of development and is therefore scheming to redevelop private property for tax revenue. But Fox offers no evidence to support this argument. A “genuine” dispute of fact exists at summary judgment if “the evidence presented would allow a reasonable factfinder to find for the nonmovant.” Bhattacharya, 93 F.4th at 686. The dearth of any pretext evidence prevents a reasonable factfinder from finding for Fox.13 12 Without analyzing potential immunity defenses, he also could have sued the officer who took the property in tort. See AGCS, 800 S.E.2d at 164. 13 Fox raises three other issues that require little attention. First, Fox contends a jury must assess the value of the house. But the compensation owed is material only if a plaintiff establishes a valid inverse condemnation claim, which Fox does not. Second, Fox argues that Virginia law provides a right to try an inverse condemnation action to a jury. Even if Fox did not forfeit this argument by raising it for the first time in his motion to reconsider, see Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir. 1999), summary judgment does not infringe one’s right to a jury trial, see Barber v. Kimbrell’s, Inc., 577 F.2d 216, 221 n.12 (4th Cir. 1978). Finally, Fox argues that the 2012 Constitutional Amendment designated private property ownership as a “fundamental right,” so strict scrutiny must apply. But even if Fox did not forfeit this issue by raising it for the first time in his reply brief—and he probably did—the Supreme Court of Virginia rejected a similar “fundamental rights” argument in Palmer, 801 S.E.2d at 420. 17
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