Finney v. Clark Realty Capital, LLC

• Decision Date: 31 January 2022
• Docket Number: Civil Action 1:20-cv-93
• Parties: James Finney, et. al., v. Clark Realty Capital, LLC, et. al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

James Finney, et. al., v. Clark Realty Capital, LLC, et. al., Defendants.

Civil Action No. 1:20-cv-93

United States District Court, E.D. Virginia, Alexandria Division

January 31, 2022

MEMORANDUM OPINION

Liam O'Grady United States District Judge

Introduction

Currently before the Court are three motions for summary judgment. One motion for summary judgment has been filed by the Plaintiffs. Dkt. 159. The other motions for summary judgment have been filed by the Defendants. Dkt. 175; Dkt. 212. The Court has previously issued an Order on several motions to exclude expert witnesses made by the Plaintiffs and Defendants. Dkt 285. Discovery has been completed and the current matters have been fully briefed by the Parties. These matters are now ripe for consideration.

Factual Background

The Plaintiffs in this case are James Finney and Natalie Finney (the “Finneys”) who have filed this suit as individuals and on behalf of their two minor children, L.F and J.F. Dkt. 37 at 1-2. The Plaintiffs entered a written lease to live at a residential home located at 5404 Grist Mill Co. South in Fort Belvoir, Virginia (“the residence”) and lived at this address pursuant to a written lease from September 2017 until June 18, 2019. Dkt 130 at 2. The Finneys entered into the lease with the Defendant, Fort Belvoir Residential Communities LLC (“FBRC”), who acted as their landlord. Dkt. 130 at 2. FBRC is a Delaware limited liability company acting as the landlord for military housing units pursuant to a military housing privatization contract.^[1] Dkt. 74 at 2. At all relevant times, FBRC had a professional services agreement with a Co-defendant, Michaels Management Services, Inc. (“MMS”), to provide property management services for FBRC. Dkt. 130 at 2. MMS is a New Jersey limited liability company that provides management services for military housing. Dkt. 74 at 2.

When the Finneys moved into the residence, a written move-in inspection was completed that detailed the conditions of the home. See Dkt. 176-2. After moving into the home, the Finneys began to file a series of maintenance requests with MMS employees. The first request was made on January 29, 2018 and complained of “black water damage” in the master bathroom. Dkt. 176-3. The Parties dispute the extent of the subsequent communications between the Finneys and the MMS property managers-with regard to potential mold in the residence-until a service request was made on July 5, 2018. See Dkt. 130 at 3 ¶¶ 28-31. On July 5, 2018 a service request was created for the residence that said, “the resident states that there is mold in the master bathroom.” Id. at 3. A maintenance worker responded to the service request the same day and reported that he “went check the bathtub caulk has mold. I remove it all around tub.” Id. The maintenance worker removed all the caulk around the bathtub in the master bathroom and did not replace it. Id.

The Finneys next filed a complaint about the residence's master bathroom on April 1, 2019. Id. In response to the complaint, a service request was generated that read, “master bathroom smells. Plastic shower and wall and tub lining needs to be checked.” Id. A maintenance worker responded to the request on April 5, 2019 and reported that there was no smell and took no remedial actions. Id. On May 16, 2019, James Finney made a request for an exception to the lease to have aerial mold testing performed inside the residence. Id. However, no testing was performed while the Finneys resided in the home. Id. On May 20, 2019, a service request was created for the residence detailing the “musty smell” in the bathroom and referencing the Finneys' complaints regarding possible hidden mold. Id. at 4. Over the course of the next month, three different third-party contractors conducted mold inspections of the Finney residence. Id. After the results of the second test, an MMS maintenance worker reported to the residence and cut a hole in the master bathroom wall. Id. Natalie Finney took a picture of the debris removed from the home. Id. The amended complaint alleges that after the hole was opened into the wall, Natalie Finney suffered respiratory distress and had to be taken to the emergency room the next day. Dkt. 37 at 23. The Finneys eventually were relocated to a hotel on June 18, 2019 and did not return to the residence. Dkt. 130 at 5. After the Finneys left the residence, extensive mold remediation efforts and testing began that was performed by the companies True North and Popowski Brothers Incorporated. Id.

On January 28, 2020, the Finneys commenced this lawsuit against the Defendants, FBRC and MMS, seeking damages under several provisions of Virginia state law. See Dkt. 1. Both Defendants have now filed Motions for Summary Judgment on all claims in the amended complaint under Federal Rule of Civil Procedure 56. Dkt. 175; Dkt. 212. The amended complaint alleges the following remaining counts^[2]: 1) Negligent Repair against FBRC and MMS; 2) gross negligence against FBRC and MMS; 3) violations of the Virginia Consumer Protection Act (“VCPA”) against FBRC and MMS; 4) negligence per se against FBRC; 5) Breach of Contract against FBRC; and 6) constructive fraud against FBRC and MMS. See Dkt. 37. The Plaintiffs have filed a motion for partial summary judgment as to the factual issue of whether the Defendants violated provisions of the Virginia Residential Landlord Tenant Act (“VRLTA”). Dkt. 160.

Legal Standard

A party may move for summary judgment by identifying either a claim or defense, or a part of a claim or defense, on which summary judgment is sought. Federal Rule of Civil Procedure 56. Summary judgment will be granted “if the movant shows that there is no genuine dispute as to any material fact.” Id. A party opposing a motion for summary judgment must respond with specific facts, supported by proper documentary evidence, showing that a genuine dispute of material fact exists, and that summary judgment should not be granted in favor of the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The Fourth Circuit has held, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003) (quoting Anderson, 477 U.S. at 247-248). “It is the responsibility of the party seeking summary judgment to inform the court of the basis for its motion, and to identify the parts of the record which it believes demonstrate the absence of a genuine issue of material fact.” Hyatt v. Avco. Fin. Servs. Mgmt. Co., 2000 U.S. Dist. Lexis 13645, at 11 (E.D. Va. March 2, 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)); aff'd, 22 Fed.Appx. 81 (4th Cir. 2000).

Discussion

The Court will first discuss the arguments raised by the Defendants in their Summary Judgment Motions. The Defendants' Motions make similar arguments and will be discussed together. The Court will then discuss the arguments made in the Plaintiffs' Motion.

1. There is a genuine factual dispute on the cause of the Plaintiffs' injuries.

Both Defendants have argued that the Plaintiffs have not been able to demonstrate the proximate cause of their injuries as a matter of law. Previously, the Court has held that the testimony of the Plaintiffs' expert witnesses that is relevant to this issue is admissible (in whole or in part). Dkt. 282. The Court also agrees with the Defendants that the Fourth Circuit's holding and reasoning in Westberry v. Gislaved Gummi AB is applicable to the current case. 178 F.3d 257 (4th Cir. 1999). In Westberry, the Fourth Circuit held that differential diagnosis was an appropriate foundation for an expert to base his or her testimony regarding the onset of a medical condition. 178 F.3d at 262 (“Differential diagnosis, or differential etiology, is a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated.”) (ref, Baker v. Daikon Shield Claimants Trust, 156 F.3d 248, 252-253 (1st Cir. 1998)). In so holding, the Fourth Circuit recognized that causation could be found without quantifying specific levels of exposure to the harmful chemical in question. Id. at 264 (“while precise information concerning the exposure necessary to cause specific harm to humans and exact details pertaining to the plaintiff's exposure are beneficial, such evidence is not always available, or necessary, to demonstrate that a substance is toxic...”) In Westerberry, the Fourth Circuit held that the testimony regarding the temporal proximity of the onset of the plaintiffs' symptoms in combination with the large quantities of chemical observed by the plaintiff was a sufficient basis for the expert to testify regarding causation. Id. at 264-265.

The current case is factually distinguishable from the circumstances in another case cited by the Defendants Zellars v. NexTech Northeast, LLC. 895 F.Supp.2d 734 (E.D. Va. 2012). In Zellars, the plaintiff alleged that there was a single acute exposure to a gas released from a broken refrigerator valve. Id. at 736. In that case, the plaintiffs' expert witnesses were not allowed to testify under Federal Rule of Evidence 702 because the experts had no knowledge of the toxicity of the specific gas or any factual basis on which to estimate a level of exposure. Id. at 741-742. In contrast-and as discussed in the Court's previous order-the experts the Plaintiffs rely on in the current case do have knowledge of the toxicity of the relevant substances. See Dkt. 282 at 4-7. The Plaintiffs have also pointed to several pieces of evidence from...