Jones v. NVR Inc.

• Decision Date: 29 March 2022
• Docket Number: Civil Action 20-453 (CKK)
• Parties: TIFFANI JONES, Plaintiff v. NVR INCORPORATION t/a RYAN HOMES, Defendant
• Court: U.S. District Court — District of Columbia

TIFFANI JONES, Plaintiff
v.
NVR INCORPORATION t/a RYAN HOMES, Defendant

Civil Action No. 20-453 (CKK)

United States District Court, District of Columbia

March 29, 2022

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY United States District Judge

Plaintiff Tiffani Jones brings this action against Defendant NVR Incorporation t/a Ryan Homes (“Defendant” or “NVR”), alleging that leaks in the plumbing system of a newly-constructed home she purchased from Defendant resulted in “structural damage” to the property and the growth of “toxic mold, ” which adversely affected the health of Plaintiff and her children.

Presently before the Court is Defendant NVR's [51] Motion for Summary Judgment. Upon review of the pleadings, ^[1]the relevant legal authority, and the record as a whole, for the reasons set

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forth below, the Court concludes that NVR has demonstrated there is no genuine dispute as to any material fact and NVR is entitled to judgment as a matter of law as to Plaintiff's remaining claims for breach of contract, breach of express warranty, and strict liability. Accordingly, the Court shall GRANT Defendant's Motion for Summary Judgment and shall dismiss this case.

I. BACKGROUND

A. Procedural Background

Plaintiff filed her Complaint in the District of Columbia Superior Court on January 28, 2020. See Compl., ECF No. 1-1. In summary terms, Plaintiff's Complaint alleges that she discovered a water leak in a newly constructed home she purchased from NVR in 2016. See Id. ¶¶ 5, 6. She claims that she reported the leaks, and allowed NVR access to her home to make repairs, but that plumbing issues persisted over several years. Id. ¶ 6. She alleges that inspections in October and November 2019 revealed toxic mold and structural defects in the house. Id. ¶ 7. Plaintiff claims that the “toxic mold” led to medical issues for her and her family members and reduced the value of the property. Id.

After removing the case to this Court, NVR moved to dismiss Plaintiff's eight-count Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court granted in part Defendant's motion and dismissed the following counts: fraud (Count 2); negligence (Count 3); negligent misrepresentation (Count 4); breach of implied warranty of merchantability (Count 6); and violation of D.C. Consumer Protection Procedures Act, D.C. Code .C. Code § 28-3904 (Count 7).^[2] The Court denied the remainder of Defendant's motion to dismiss. Accordingly, only three counts remain pending: breach of contract (Count 1); breach of express warranty (Count 5); and strict liability (Count 8).

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The parties then proceeded with discovery. Pursuant to the [31] Scheduling and Procedures Order issued by the Court, the parties were required to complete their Rule 26(a)(2)(B) & (C) expert disclosures by September 30, 2020; with opposing disclosures due by no later than November 30, 2020 and replies due by December 11, 2020. The Court also ordered that “[a]ll discovery shall be completed . . . on or before FEBRUARY 26, 2021.” Sched. & Procedures Order, ECF No. 31. As detailed by the Court in its contemporaneous [69] Memorandum Opinion, Plaintiff failed to disclose any expert witnesses to support her claims by the Court-ordered deadlines. See Mem. Op. at 5-7. The Court shall not recount its extensive discussion of Plaintiff's deficient disclosures here, but instead reincorporates the discussion contained in its [69] Memorandum Opinion.

NVR filed a Motion in Limine and Motion for Summary Judgment. Despite Plaintiff's failure to comply with the Court-ordered deadlines for expert disclosures, or to supplement her disclosures in accordance with Rule 26(e) by the deadline for the close of discovery, Plaintiff's Opposition to Defendant's Motion for Summary Judgment relies extensively on testimony and records prepared by “expert” or otherwise “retained” individuals or entities, see Mem. Op. at 9-14. NVR then moved to strike certain exhibits and affidavits submitted with Plaintiff's Opposition. See Def.'s Mot. to Strike.

The Court ordered that Plaintiff could not rely on these materials due to her violation of Rules 26(a) and 26(e) and her failure to demonstrate that such violation was “substantially justified” or “harmless.” See Mem. Op. at 17-20. The Court also struck certain expert-related exhibits and affidavits submitted by Plaintiff in support of her Opposition. See Id. at 20-22; Order, ECF No. 68.

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B. Factual Background

In presenting the facts pertinent to resolving the present motion, this Court “assume[s] that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.” LCvR 7(h)(1). In most instances the Court shall cite to [51-3] Defendant's Statement of Material Undisputed Facts (“Def.'s Stmt.”) unless Plaintiff disputes or controverts relevant aspects of a fact proffered by Defendant. In such instances, the Court shall also cite to [59-3] Plaintiff's Counter-Statement of Disputed Material Facts (“Pl.'s Counter-Stmt.”). The Court shall also cite directly to the record, where appropriate, to provide additional information not covered by Defendant's Statement.

However, the Court shall not consider Plaintiff's exhibits and affidavits (or portions thereof) that have been stricken from the record pursuant to its [68] Order and [69] Memorandum Opinion. The Court may note where Plaintiff has relied only on evidence that has been stricken from the record in assessing whether or not she has controverted evidence provided by Defendant.

1. Purchase Agreement and Limited Warranty

Pursuant to a Purchase Agreement dated February 29, 2016, Defendant agreed to construct a home for Plaintiff at 1001 Tanner Place SE in Washington, D.C. (the “Property”). Def.'s Stmt. ¶ 2. In executing the Purchase Agreement, Plaintiff agreed that she had been given the opportunity to review the [Limited Warranty], ” that she had “received a copy” of the Limited Warranty, and agreed that:

THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF FREEDOM FROM STRUCTURAL DEFECTS, WORKMANSHIP AND HABITABILITY, ALL OF WHICH [PLAINITFF] HEREBY WAIVES. OTHER THAN AS

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PROVIDED IN THE LIMITED WARRANTY, PURCHASER IS PURCHASING “AS IS” AND “WHERE IS.”

Def.'s Stmt. ¶ 3; Purchase Agreement ¶ 6, ECF No. 51-5. The Limited Warranty provides, in pertinent part:

3. ONE YEAR LIMITED WARRANTY ON THE BASIC HOME. Builder warrants that the Home and driveway, walkways, steps, patios, porches, fences (if any) and decks (if any) supplied by Builder with the Home under the same purchase agreement will be free from defects in materials and workmanship of the original construction for a period of one (1) year from the Warranty Date.

4. TWO YEAR LIMITED WARRANTY MECHANICAL SYSTEMS. Builder warrants that the installation of the plumbing, ^[3]electrical, and HVAC systems will be free from defects in workmanship of the original installation which appear at any time within two (2) years after the Warranty Date.

5. TEN YEAR LIMITED WARRANTY AGAINST MAJOR STRUCTURAL DEFECTS. Builder warrants that the Home will be free from major structural defects^[4] in the materials or workmanship of the original construction which appear any time within ten (10) years after the Warranty Date, and which significantly affect the load-bearing functions of the Home or otherwise render it unsuitable for residential purposes.

Def.'s Stmt. ¶ 8. It further specifies that, upon occurrence of a “defect” under one of these sections, the purchaser must “give prompt and written notice” to NVR, which then obligates NVR to “repair, replace, or pay the reasonable costs of repairing or replacing the defective component. Id. NVR has the “right to decide in its own discretion which of those remedies it will provide, ” and “[t]he repair, replacement, or payment remedy selected . . . will be the exclusive remedy for which [NVR] will be liable with respect to the pertinent defect.” Id.

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In addition to these Limited Warranty provisions, the Purchase Agreement provides that “ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THIS [PURCHASE] AGREEMENT . . . REGARDLESS OF LEGAL THEORY, EXCEPT ANY CLAIMS UNDER THE LIMITED WARRANTY” shall be “SUBJECT TO A ONE (1) YEAR LIMITATION OF ACTION PERIOD AND BAR DATE.” Def.'s Stmt. ¶ 4; Purchase Agreement ¶ 13. That same provision specifies that the “so-called ‘discovery rule' is mutually waived by the parties.” Id.

Plaintiff was represented by a real estate broker in completing the purchase of the Property. Def.'s Stmt. ¶ 9. Plaintiff agrees that she reviewed the Purchase Agreement with her real estate broker before signing it. Id. ¶ 10. Plaintiff settled on the purchase of the Property on October 28, 2016. Id. ¶ 12.

2. Plaintiff's Reports of Leaks to NVR and NVR's Response

In February 2017, Plaintiff noticed that an area of the Property's living room ceiling below the master bathroom was “bubbling.” Pl.'s Ex. 10, Deposition of Tiffani Jones (“Pl.'s Dep.”) 23:9-24:10, ECF No. 59-7. Plaintiff reported to NVR that the shower in the master bathroom was leaking. Def.'s Stmt. ¶ 13. NVR indicates that the leak was due to “faulty grouting at the seat in the master bathroom shower, ” which it repaired as of April 17, 2017. Def.'s Stmt. ¶ 13. Plaintiff does not dispute that the cause of the water escaping to the living room ceiling was “faulty grouting” in the master bathroom. Pl.'s Counter-Stmt. ¶ 13. However, she claims that NVR did not complete its repair of the leak in April 2017; she contends that the leaks remained “ongoing.” Id. In support of this claim, she cites her own deposition testimony, as well as her husband's affidavit, in which he attested that there “was never a full 1-year period that we didn't experience a leak in...