Present: Hassell, C.J., Keenan, Koontz, Lemons, Agee, and 

Goodwyn, JJ., and Lacy, S.J. 

MICHAEL F. JENNINGS 

v. Record No. 070498 OPINION BY SENIOR JUSTICE 

 ELIZABETH B. LACY 

 April 18, 2008 

KAY JENNINGS FAMILY 

LIMITED PARTNERSHIP, ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Michael P. McWeeny, Judge 

In this appeal we consider whether the trial court erred 

in dismissing Michael Jennings’ derivative suit because 

Michael, a limited partner in the Kay Jennings Family Limited 

Partnership, did not “fairly and adequately represent the 

interests” of the limited partners and the partnership and 

therefore lacked standing to bring a derivative suit pursuant 

to Code § 50-73.62. 

FACTS and PROCEEDINGS 

Louis Allen Jennings operated a car dealership, 

Springfield Toyota, Inc. (the dealership), in Springfield, 

Virginia on land which he owned. In 1964, Louis Jennings and 

his wife, Minnie K. Jennings (Kay) executed a 99-year lease 

with Avis and Mary R. Boothe (the Boothe lease) for an 

adjacent parcel of land for use in the operation of the 

dealership. Following her husband’s death, Kay formed the 

Jennings Family Limited Partnership to own and lease property. 

Kay was the sole general partner. She and her five children, 
Michael, Louis, Katherine, Mary and Beverly, were limited 

partners. In August of 1985, the Jennings Family Limited 

Partnership and the dealership executed an Agreement of Lease 

under which the dealership subleased the Boothe land from the 

partnership. 

In 1994 the dealership was reorganized. The dealership 

redeemed Kay’s stock and that of all the siblings except 

Michael, leaving Michael as the sole stockholder of the 

dealership.1 In that same year, the Jennings Family Limited 

Partnership was renamed the Kay Jennings Family Limited 

Partnership (the Partnership) and Kay withdrew as general 

partner. Louis, Katherine, Mary and Beverly were substituted 

as general partners of the Partnership and all five siblings 

retained their interests as limited partners. The 

reorganization of the Partnership was contingent on the 

execution of a new lease between the Partnership and the 

dealership for the land on which the dealership operated. The 

new lease, executed March 29, 1994, provided that the 

dealership pay the Partnership $50,000 a month for 15 years 

with options to extend the lease for additional five-year 

periods. 

 1 It appears in the record that at some point after Michael 

took control of the dealership, the entity operating the 

dealership was changed from Springfield Toyota, Inc. to 

Jennings Motor Co., LLC. 

2
In 2004, Michael and representatives of Toyota met with 

the general partners to discuss an expansion of the 

dealership. The expansion involved extensive improvements 

that were projected to increase the dealership’s sales. To 

finance the improvements, Michael proposed that the 

Partnership subordinate the lease to the construction loan. 

When the general partners declined to do so, Michael offered 

to buy his siblings’ interests in the Partnership for 

$2,000,000 each, so that “he could control the partnership and 

control the land.” His sister Mary sold her Partnership 

interest to Michael, but the remaining three siblings refused 

Michael’s offer. Consequently, Louis, Katherine, and Beverly 

each retained a 5% general partnership interest and a 15% 

limited partnership interest, and Michael had a 40% limited 

partnership interest.

In July 2005, Katherine and Beverly, as general partners 

of the Partnership, wrote a “To Whom It May Concern” letter 

stating that “no one general partner could unilaterally make 

decisions for the [P]artnership or . . . bind [it] to specific 

courses of action.” The letter was written in response to 

Michael’s complaints about Louis’ actions including an 

incident in 2003 involving Louis’ suggestions to Toyota Motor 

Sales USA, Inc., an importer of Toyota motor vehicles, and 

Central Atlantic Toyota Distributors, Inc., a distributor of 

3
Toyota motor vehicles and Springfield Toyota’s franchisor, 

that the lease between the dealership and the Partnership was 

not valid.

On August 18, 2005, Michael filed a derivative suit 

pursuant to Code § 50-73.62, against the Partnership and Louis 

Jennings.2 In the suit, Michael recited a number of actions 

taken by Louis which Michael claimed breached Louis’ fiduciary 

duties to the Partnership, endangered the Partnership, and 

possibly left the Partnership vulnerable to Louis’ creditors. 

Michael also claimed that Louis intentionally interfered with 

Michael’s business relationship with Toyota Motor Sales USA, 

Inc. and Central Atlantic Toyota Distributors, Inc., when he 

contacted the Toyota companies and suggested, among other 

things, that the lease between the dealership and the 

Partnership was invalid. Michael asked the trial court to 

expel Louis from the partnership and substitute Michael as a 

general partner in Louis’ stead. Although Michael provided a 

courtesy copy of the suit papers to Katherine and Beverly, 

Louis and the Partnership were not served for approximately 

one year. 

During the pendancy of the derivative suit, DAMN, LLC, a 

business owned and operated by Michael and his wife, Diane, 

 2

 Jennings Motor Co., LLC was also listed as a plaintiff 

in this suit. 

4
purchased the Boothe’s property and notified the Partnership 

that the rent would increase from $2,500 a month to $10,500 a 

month based on their interpretation of the lease rent 

calculation index. The Partnership challenged the rent 

increase, and the dispute was arbitrated as provided in the 

lease. 

 When Michael’s derivative action was served on the 

Partnership in 2006, the Partnership filed a demurrer and plea 

in bar. The trial court sustained the demurrer with leave to 

amend, ruling that Michael’s individual claims against Louis 

could not be joined with the derivative suit and that the 

trial court had no authority to replace Louis with Michael as 

a general partner. Michael filed an amended bill of 

complaint, limiting his claims to those held by the 

partnership in general and requesting, among other things, 

that the trial court convert Louis’ general partnership 

interest into a limited partnership interest. 

The Partnership again filed a plea in bar and motion to 

dismiss. In the plea in bar, the Partnership asserted that 

Michael lacked standing to maintain a derivative suit, because 

he did not “fairly and adequately represent the interests” of 

the limited partners and the Partnership as required by Code 

§ 50-73.62. At the conclusion of an ore tenus hearing held on 

the plea in bar, the trial court found that Michael did not 

5
fairly and adequately represent the interests of the 

Partnership or the limited partners because he (1) “has 

economic interests that are directly adverse to those of the 

partnership” (2) “maintained as a manager of the DAMN, LLC, an 

arbitration adverse interest to the partnership as well,” and 

(3) “is pursuing remedies that are not supported by the other 

parties.” The trial court dismissed the derivative proceeding 

for lack of standing, and also ordered recovery of attorneys’ 

fees against the plaintiff. Michael timely appealed to this 

Court asserting that he did have standing to pursue the 

derivative action because as a matter of law he had no 

interests that were directly economically antagonistic to the 

interests of the Partnership. 

DISCUSSION 

On appellate review of a ruling on a plea in bar based on 

an ore tenus hearing, the trial court’s factual findings will 

not be set aside unless plainly wrong or without evidence to 

support them. Cooper Indus., Inc. v. Melendez, 260 Va. 578, 

595, 537 S.E.2d 580, 590 (2000). Whether the facts found by 

the trial court in this case rendered Michael unable to fairly 

and adequately represent the interests of the other limited 

partners and the Partnership is a mixed question of fact and 

law which we review de novo. See Purce v. Patterson, 275 Va. 

6
190, 194, 654 S.E.2d 885, 887 (2008), Grandison v. 

Commonwealth, 274 Va. 316, 320, 645 S.E.2d 298, 300 (2007). 

Code § 50-73.62 allows a limited partner to bring an 

action “in the right of a limited partnership . . . to the 

same extent that a stockholder may bring an action for a 

derivative suit under the Stock Corporation Act, Chapter 9 

(§ 13.1-601 et seq.) of Title 13.1.” A derivative action may 

be pursued if the general partners with authority to bring an 

action asserting the rights of the partnership have refused to 

do so or if an effort to cause the partners to bring such an 

action “is not likely to succeed.” Code § 50-73.62. A 

limited partner cannot maintain a derivative action, however, 

if “it appears that the plaintiff does not fairly and 

adequately represent the interests of the limited partners and 

the partnership in enforcing the right of the partnership.” 

Id. We have not previously addressed the factors a court 

should consider when determining whether the plaintiff “fairly 

and adequately” represents the limited partners and 

partnership in a derivative action, nor have we construed a 

similar standing requirement for shareholder derivative suits. 

See Code § 13.1-672.1 (shareholder in derivative action must 

fairly and adequately represent corporation’s interests in 

enforcing rights of corporation). 

7
Both parties suggest that we consider the factors set out 

in Davis v. Comed, Inc., 619 F.2d 588, 593-94 (6th Cir. 1980). 

That case involved the application of Rule 23.1 of the Federal 

Rules of Civil Procedure, which contains a requirement of fair 

and adequate representation that is substantially similar to 

the Virginia requirement.3

In Davis, the United States Court of Appeals for the 

Sixth Circuit reviewed other cases that addressed the standing 

requirement of fair and adequate representation in derivative 

suits. The Court stated that, in making this determination, 

a court should examine any indications that there 

are extrinsic factors which render it likely that 

the representative may disregard the interests of 

the class members. Indeed, while a plaintiff is not 

necessarily disabled to bring suit simply because 

some of his interests extend beyond that of the 

class, the court may take into account outside 

entanglements that render it likely that the 

representatives may disregard the interests of other 

class members. 

Id. at 593 (citations and internal quotation marks omitted). 

The court then identified the following factors as relevant to 

determining whether the plaintiff meets the representational 

requirements: (1) economic antagonisms between the 

representative and members of the class; (2) the remedy sought 

by the plaintiff in the derivative action; (3) indications 

 3

 The federal rule refers to shareholders or members who 

are “similarly situated.” The omission of this phrase in the 

Virginia statute is not at issue in this case. 

8
that the named plaintiff is not the driving force behind the 

litigation; (4) plaintiff’s unfamiliarity with the litigation; 

(5) other litigation pending between the plaintiff and 

defendants; (6) the relative magnitude of plaintiff’s personal 

interests as compared to his interests in the derivative 

action itself; (7) plaintiff’s vindictiveness toward the 

defendants; and (8) the degree of support plaintiff is 

receiving from the shareholders he purports to represent. Id.

at 593-94. 

These factors have been utilized in many jurisdictions, 

see Larson v. Dumke, 900 F.2d 1363, 1367 (9th Cir. 1990), 

Vanderbilt v. Geo-Energy, Ltd., 725 F.2d 204, 207 (3d Cir. 

1983), Elgin v. Alfa Corp., 598 So.2d 807, 818-19 (Ala. 1992), 

Fink v. Golenbock, 680 A.2d 1243, 1256 (Conn. 1996), Woods v. 

Wells Fargo Bank, 90 P.3d 724, 735-36 (Wyo. 2004), and the 

trial court’s factual findings here indicate that it 

considered the Davis factors in reaching its holding.4 We 

agree that these factors are relevant in determining whether a 

limited partner can adequately and fairly represent the 

interests of the partnership and the other limited partners in 

a derivative action. These factors, however, are not 

exclusive and must be considered in the totality of the 

 4 The trial court’s three factual findings corresponded to 

Davis factors 1, 5 and 8 set out above. 

9
circumstances found in each case. As the court in Davis

commented, 

it is frequently a combination of factors which 

leads a court to conclude that the plaintiff does 

not fulfill the requirements of [fair and adequate 

representation] (although often a strong showing of 

one way in which the plaintiff’s interests are 

actually inimical to those he is supposed to 

represent fairly and adequately, will suffice in 

reaching such a conclusion). 

Id. at 593. 

 While suggesting that the Davis factors are relevant, 

Michael argues that the trial court misapplied them. First, 

citing G.A. Enterprises, Inc. v. Leisure Living Communities, 

Inc., 517 F.2d 24 (1st Cir. 1975), Michael contends that 

economic antagonism must exist between the plaintiff’s 

economic interest and the claims raised in the derivative 

action. Here, Michael argues, the claims raised involve 

Louis’ actions that Michael alleges have impacted or can 

adversely impact the Partnership’s income stream. According 

to Michael, he has no economic interest antagonistic to the 

claims made in the derivative action. We disagree with 

Michael’s premise and his reading of G.A. Enterprises. 

 Although the United States Court of Appeals for the First 

Circuit Court in G.A. Enterprises stated that “it is sometimes 

said” that the adverse economic interest must be antagonistic 

to the subject matter of the derivative action, the court went 

10
on to explain that “these principles have not been read to 

prevent a court from taking account of outside entanglements 

making it likely that the interests of the other stockholders 

will be disregarded in the management of the suit,” citing 

other state and federal cases. Id. at 27. The court observed 

that such “outside influences are not hypothetical but 

constitute a present threat to the conduct and indeed to ‘the 

subject matter’ of the suit.” Id.

We agree with the First Circuit Court of Appeals. 

Economic interests that may not be directly antagonistic to 

the claims made in the derivative suit may, nevertheless, have 

an impact on the derivative plaintiff’s ability to fairly and 

adequately maintain the litigation in the best interests of 

the partnership and the other limited partners. Accordingly, 

in applying the Davis factors, it is appropriate to consider 

economic interests that may influence the derivative 

plaintiff’s judgment in the management of the litigation in a 

manner antagonistic to the interests of the partnership or 

other partners. 

 The trial court did not identify the specific economic 

interests it considered to be antagonistic to the Partnership. 

However, the record contains a number of circumstances 

suggesting economic antagonism between Michael and the 

Partnership. For example, as a principal in DAMN, LLC, 

11
Michael had an adverse economic interest in securing as much 

rental income as possible from the Partnership under the 

Boothe lease. Additionally, as president of the dealership, 

Michael had an economic interest in maintaining the lease with 

the Partnership and paying as little rent as possible to the 

Partnership under that lease. Another example of economic 

antagonism is Michael’s desire to expand the dealership by 

subordinating the Partnership’s lease to obtain a construction 

loan and the Partnership’s conflicting desire to avoid such a 

monetary risk. Furthermore, Michael’s expressed desire to 

“control the partnership and the land” can be viewed as 

antagonistic to the interests of the Partnership and the other 

partners. Accordingly, we conclude that the trial court’s 

finding that Michael had economic interests antagonistic to 

the interests of the Partnership is supported by sufficient 

evidence and we will not reverse that finding. 

 The trial court’s second finding, that Michael maintained 

an arbitration proceeding antagonistic to the Partnership, is 

also supported by the record. Upon purchasing the Boothe 

property and becoming the Partnership’s lessor in March of 

2006, DAMN, LLC immediately informed the Partnership that the 

index by which the rent was to be calculated was no longer in 

existence and that based on new indices, the monthly rent 

should be set at $10,500 commencing in May 2006. DAMN, LLC 

12
further informed the Partnership that any dispute regarding 

the rent would have to be submitted to arbitration and if the 

Partnership pursued such a course of action, DAMN, LLC would 

seek allegedly past-due rent of over $3,000,000 and assert 

that the current rent should be $12,740 per month. 

Michael argues that his involvement in the arbitration 

proceeding is an inadequate basis to deny him standing because 

“the importance of the arbitration paled in comparison with 

the necessity of the relief from the tortious conduct of Louis 

Jennings.”5 Furthermore, Michael claims that the arbitration 

“could have only modestly affected the net income” of the 

Partnership by “possibly raising the rent.” We disagree with 

Michael’s characterization of the effect of the arbitration 

proceeding. The impact of the increase in rent DAMN, LLC 

sought amounted to additional rental payments totaling $96,000 

on an annual basis, more than a “modest” impact on the 

Partnership’s net income. Furthermore, DAMN, LLC’s threat to 

seek more than $3,000,000 in unpaid back rent from the 

Partnership if arbitration was pursued cannot be considered 

anything other than an act adverse to the Partnership. 

Accordingly, we conclude that the trial court’s factual 

 5

 Michael also argued the arbitration proceeding was 

irrelevant to the issues in his derivative suit; however, as 

stated above, economic antagonism is not limited to claims 

raised in the derivative suit. 

13
finding that Michael maintained an arbitration proceeding 

antagonistic to the Partnership was supported by the record. 

 The final factual finding by the trial court that the 

other partners did not support the derivative suit is also 

supported by the record and is not disputed by Michael. 

Michael asserts, however, that the lack of support by the 

other partners in pursuing the derivative action should not be 

a basis for concluding he could not fairly and adequately 

represent the interests of the partners and the Partnership. 

Michael contends that the lack of support from other partners 

is the “very essence of a derivative claim.” Michael argues 

that the statutory predicate for bringing the derivative suit 

– that the general partners have refused to bring it or would 

not bring it if asked – means that, in situations like the 

instant case where there are only a few partners in the 

partnership, the lack of support from the other partners “is 

not a preclusion to the derivative claim, but a requirement.” 

We agree with Michael that the number of limited partners 

involved in the partnership may be relevant when considering 

the level of support a plaintiff receives from other partners 

and its impact on the ability to provide fair and adequate 

representation. But Michael’s position elevates the number of 

partners available to file a derivative action above the other 

Davis factors and precludes the court from considering the 

14
circumstances which influenced the actions of the other 

partners in supporting or not supporting the derivative 

action. As we mentioned above, the Davis factors are not 

exclusive factors and, in making the determination whether a 

plaintiff in a derivative action can fairly and adequately 

represent the interests of the other partners and the 

partnership, the court should look at all the circumstances. 

The fact that there are a limited number of potential partners 

to bring a derivative suit, while relevant, does not 

overshadow all other factors. 

CONCLUSION 

In summary, the factual findings of the trial court are 

supported by the record and those findings are relevant 

factors in determining whether Michael could adequately and 

fairly represent the interests of the Partnership and partners 

in this derivative suit. Based on these factual findings we 

find no error in the trial court’s judgment. Michael’s 

economic interests as both landlord and lessee of the 

Partnership created a direct conflict, particularly in light 

of the fact that Michael’s income from the Partnership was 

substantially less than the income from his dealership. 

Michael’s attempt to obtain higher rent from the Partnership 

through DAMN, LLC’s purchase of the Boothe property and lease 

was in direct conflict with the interests of the Partnership. 

15
16

And throughout the record Michael made it clear that his 

actions were inspired by his desire to “control” the 

partnership. We conclude that these circumstances preclude 

Michael’s ability to maintain this derivative action in the 

best interests of the Partnership and other partners. 

Accordingly, we will affirm the judgment of the trial court. 

Code § 50-73.65 provides that a defendant in a derivative 

action may recover reasonable expenses including attorney’s 

fees “if the plaintiff did not fairly and adequately represent 

the interests of the limited partners and the partnership in 

enforcing the right of the partnership.” In their brief 

before this Court, Louis and the Partnership have asked that 

the case be remanded to the trial court for an award of 

attorneys’ fees incurred in this appeal. Accordingly, this 

case will be remanded to the trial court for that purpose 

only. 

Affirmed and remanded.