FIRST VIRGINIA BANKS, INCORPORATED, Plaintiff-Appellant, v. BP EXPLORATION & OIL, INCORPORATED; Standard Oil Company; BP America, Incorporated, Defendants-Appellees, 206 F.3d 404

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Chief Judge WILKINSON joined. Judge WILKINS wrote an opinion concurring in part and dissenting in part. OPINION LUTTIG, Circuit Judge: In this diversity action, appellant First Virginia Banks, Inc., (“FVBI”) appeals from the district court’s grant of

summary judgment to appellee BP America, Inc. (“BP”) on the ground that FVBI’s trespass claim against BP was barred by the applicable Virginia statute of limitations. FVBI also contests the district court’s judgment after a bench trial that FVBI was not a third-party beneficiary under Virginia law to a settlement agreement between BP and Eakin Properties, Inc. (Eakin). For the reasons set forth below, we affirm. I. From 1977 to 1986, BP operated a gasoline station on a parcel of land owned by Eakin in Falls Church, Virginia.

In 1986, BP ceased its operations at that site, and removed from the site the underground tanks in which it had stored gasoline. In July 1988, Eakin discovered that the former BP site contained petroleum contamination. FVBI owns an undeveloped parcel of residentially-zoned land located across the street from the former BP site, which it has divided into fourteen contiguous lots. FVBI also owns two parcels of commercially-zoned land adjacent to the former BP site.

In the fall of 1988, Eakin alerted FVBI to the contamination on the former BP site and, in January 1989, FVBI obtained test results confirming that the contamination had reached the groundwater beneath its own commercial and residential parcels. Pursuant to an agreement with Eakin, BP took measures to mitigate the damage to the site of its former gas station. Despite these measures, Eakin filed suit against BP, alleging that the contamination left behind by BP damaged the property and that the delay involved in decontaminating the property resulted in lost rent revenues for Eakin.

This lawsuit ended in a confidential settlement agreement, unsealed after the present suit between BP and FVBI commenced, in which BP agreed, inter alia, to “remediate as required by the State Water Control Board.” J.A. 329-30. On March 5, 1998, FVBI filed suit against BP, alleging trespass and negligence claims against BP resulting from the migration of petroleum hydrocarbons from the former BP site into the groundwater beneath FVBI’s property. FVBI also brought a breach of contract claim against BP, asserting that it was a third-party beneficiary to the settlement agreement between BP and Eakin.

The district court granted

summary judgment to BP with respect to the negligence and trespass claims, and entered a final judgment in BP’s favor on the contract claim after a bench trial. FVBI appeals the disposition below of its trespass and contract claims. II. FVBI first asserts that the district court erred in granting

summary judgment to BP with regard to FVBI’s trespass claim. The district court concluded that FVBI’s claim was barred under the applicable statute of limitations. See Va. Code § 8.01-243(B) (“Every action for injury to property ... shall be brought within five years after the cause of action accrues.”). The court determined that FVBI’s cause of action accrued, at the latest, in January of 1989, when petroleum contamination was discovered on its property. See J.A. 38-34.

On appeal, FVBI claims that petroleum hydrocarbons migrated onto its property in intervals throughout the 1990s, and that each instance in which petroleum migrated onto its property gave rise to a new cause of action, with a new five-year limitations period. We disagree. Under Virginia law, a cause of action “shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of ... damage to property.” Va.Code § 8.01-230.

Data from tests conducted on FVBI’s land in January of 1989 revealed that, by that date, the injury at issue here had begun to be sustained: petroleum hydrocarbons from the former BP site had entered the groundwater beneath FVBI’s property. It is true, as FVBI asserts, that the contamination at issue did not cease in 1989; rather, petroleum hydrocarbons continued to migrate onto FVBI’s land throughout the 1990s. FVBI is also correct to point out that, under Virginia law, if a series of discrete legal wrongs occurs, each instance of wrongdoing gives rise to a separate cause of action.

See, e.g., Hampton Roads Sanitation Dist. v. McDonnell, 234 Va. 235, 239, 360 S.E.2d 841 (1987) (holding that nine separate discharges of sewage onto the plaintiffs property gave rise to separate causes of action). However, FVBI overlooks the fact that the migration of petroleum hydrocarbons onto its land did not occur in distinct episodes, as in Hampton Roads. Rather, the migration has occurred continuously throughout the decade. In that regard, this case is indistinguishable from Churchill Apartments Associates v. City of Richmond, 36 Va.

Cir. 204, 1995 WL 1055826 (1995), in which the Circuit Court of Virginia held that, in the case of an injury caused by the continuing migration of methane gas, the cause of action accrued when methane first migrated onto the plaintiffs land. See id. at 207. We thus conclude, as did the district court, that FVBI’s trespass claim had accrued by January of 1989, and that the statute of limitations on that claim had expired by 1994, four years before FVBI filed the present action. The district court therefore properly granted BP’s motion for

summary judgment on FVBI’s trespass claim. III. FVBI also asserts that it was a third-party beneficiary to the settlement agreement between BP and Eakin, and that BP failed to fulfill its duties to FVBI under that contract. The district court ruled that, because BP and Eakin did not express a clear intent to benefit FVBI directly when they entered into the settlement agreement, FVBI was not a third-party beneficiary to that compact under Virginia law. On appeal, FVBI argues that the district court impermissibly prohibited it from introducing certain evidence in support of its third-party beneficiary theory.

Alternatively, FVBI contends that, even on the evidence it was permitted to introduce, the district court’s conclusion that BP and Eakin did not intend their agreement to benefit FVBI directly was clearly erroneous. We reject both claims. As to the district court’s restriction on the amount of evidence FVBI could introduce, Federal Rule of Civil Procedure 52 requires that a party be “fully heard” before a judgment is rendered on a particular issue.

However, the right to be “fully heard” does not amount to a right to introduce every shred of evidence that a party wishes, without regard to the probative value of that evidence. Indeed, the Advisory Committee Note to Rule 52(

c) states that the Rule “authorizes the court to enter judgment at any time that it can appropriately make a dispositive finding of fact on the evidence.” Fed.R.Civ.P. 52 advisory committee’s note (1991 Amendment). In the present case, the district court precluded FVBI from producing further evidence predating the settlement agreement between BP and Eakin, and concerning whether BP and Eakin intended their agreement to benefit FVBI directly.

In so doing, the district court noted that it viewed evidence predating the agreement as being of little relevance to its determination whether the agreement itself was intended to confer a direct benefit on FVBI. See J.A. 49, 51. Moreover, the district court precluded the further production of pre-agreement evidence only after it had allowed FVBI to introduce into evidence all but 38 of the 101 exhibits that FVBI wished to produce, and only after the court had warned FVBI that it would not continue to endure a “letter by letter by letter” presentation of preagreement evidence. J.A. 51.

Under these circumstances, we cannot say that the district court abused its discretion in placing some limitation on FVBI’s introduction of preagreement evidence.

As to the question whether the district court’s determination on the record before it was clearly erroneous, FVBI asserts that the evidence it was permitted to introduce established that the provision of the agreement requiring BP to “remediate as required by the State Water Control Board,” J.A. 329, was intended to benefit FVBI, given that the Board required remedial measures that would limit the impact of the petroleum contamination on FVBI’s property.

However, under Virginia law, a party incidentally benefitted by an agreement does not attain third-party beneficiary status; rather a party claiming that status must show that the parties to the underlying agreement “clearly and definitely intended to bestow a direct benefit” upon it. Obenshain v. Holliday, 504 F.Supp. 946, 956 (E.D.Va.1980) (citing Richmond Shopping Center, Inc. v. Wiley N. Jackson Co., 220 Va. 135, 255 S.E.2d 518 (1979); Valley Landscape Company, Inc. v. Rolland, 218 Va. 257, 237 S.E.2d 120 (1977)).

In concluding that the settlement agreement in the present case does not evince such an intent on the part of BP and Eakin, the district court observed that: (1) the agreement does not expressly mention FVBI, (2) the agreement was kept confidential until after the present suit commenced, suggesting the lack of a specific intent to benefit third parties directly, and (3) the testimony of Charles Schneider, Eakin’s lawyer at the time of the settlement agreement, stating his view that the agreement would have the effect of limiting the damage to FVBI’s property, not only failed to establish that the • parties intended the agreement to directly (as opposed to incidentally) benefit FVBI, but also was lacking in credibility and appeared “defensive.” See J.A. 44-45.

Given these considerations, and having reviewed the record on appeal, we cannot conclude that the district court’s factual determination that BP and Eakin did not intend their settlement agreement to benefit FVBI directly was clearly erroneous. CONCLUSION For the reasons stated herein, we affirm the judgment of the district court. AFFIRMED . On appeal, FVBI raises two arguments in support of its statute of limitations claim for the first time.

First, FVBI claims that, because it has subdivided its land surrounding the former BP cite into sixteen lots, the statute of limitations should begin to run with respect to each of the lots only when contaminants entered that lot. Second, FVBI asserts that, although the five-year statute of limitations applies to its claim for damages, it does not apply to its claim for injunctive relief. Because neither of these arguments were raised below, we decline to consider them on appeal. .

Because the district court acted as the fact-finder with regard to FVBI’s contract claim, we decline, despite FVBI’s protestations on appeal, to disturb the district court's determination regarding the credibility of Schneider’s testimony.