Yarbrough v. Hunt S. Grp., LLC, CAUSE NO. 1:18cv51-LG-RHW
| Decision Date | 12 September 2019 |
| Docket Number | CAUSE NO. 1:18cv51-LG-RHW |
| Parties | MICHAEL YARBROUGH, JR.; et al. PLAINTIFFS v. HUNT SOUTHERN GROUP, LLC formerly known as Forest City Southern Group, LLC; et al. DEFENDANTS |
| Court | U.S. District Court — Southern District of Mississippi |
BEFORE THE COURT are the [229] Motion for Summary Judgment filed by Defendants Hunt Southern Group, LLC and Hunt MH Property Management, LLC and [234] Motion for Summary Judgment filed by Defendant Forest City Residential Management, LLC. The Motions argue that there are no material issues of fact and the Defendants are entitled to summary judgment on each and every one of Plaintiffs' claims. The Motions are fully briefed. Having considered the submissions of the parties, the record, and relevant law, the Court finds that Defendants' Motions for Summary Judgment should be granted. Plaintiffs' claims will accordingly be dismissed.
The plaintiffs in this case - Michael Yarbrough, Jr., Ann Yarbrough, Alizelyia Yarbrough, Michael Yarbrough, III, and James Yarbrough - allege that they were exposed to mold while living in on-base housing at Keesler Air Force Base in Biloxi, Mississippi. This is one of fourteen pending similar cases filed by military families at Keesler.1 The defendants are alleged to have owned or managed the subject on-base housing since its construction was completed in 2011. Forest City Southern Group, LLC ("Forest City Southern") purchased the structures from the Air Force on September 30, 2011 and obtained a 50-year lease on the land underlying the structures.2 In February 2016, the ownership of the housing structures and the lease of the underlying land were purchased from Forest City Southern (presumably by a parent company of Hunt Southern Group, LLC), and Forest City Southern's name was changed to Hunt Southern Group, LLC ("Hunt Southern"). Forest City Residential Management, LLC ("FCRM"), which had managed and operated the property for Forest City Southern, ceased managing and operating the property with its sale, and Hunt MH Property Management, LLC ("Hunt Management") became manager and operator for Hunt Southern.
Plaintiffs commenced a lease of their residence on October 1, 2011. (See Military Lease Agreement 1, ECF No. 196-1.) Plaintiffs assert they repeatedly requested that Defendants address maintenance concerns involving mold and water damage in their residence. Defendants sent maintenance technicians, who reported that the mold and leaks were resolved. However, say Plaintiffs, Defendants never actually fixed the cause of the mold - air conditioning ductwork that sweat because it was poorly insulated - instead simply cleaning up the visible mold with soap and water each time. Plaintiffs contend that Defendants' agents fraudulently misrepresented that mold problems had been rectified when, in fact, they had not. Plaintiffs state that because of Defendants actions and inactions, they were exposed to elevated levels of toxic mold. As a result, Plaintiffs say they were forced to leave their home and suffered and continue to suffer physical and emotional injuries, medical expenses, and property damage.
Plaintiffs assert claims for negligence, gross negligence, breach of contract, civil conspiracy, alter ego, fraudulent concealment, intentional endangerment, constructive eviction, violation of § 3951 of the Servicemembers Civil Relief Act ("SCRA"), breach of agreement to repair, and third-party beneficiary breach of contract.
The Motion for Summary Judgment filed by Hunt Southern and Hunt Management argues that they are entitled to summary judgment because, among other things, (1) Plaintiffs have put forward no evidence that mold present in their home rendered it dangerous or unsafe, (2) Plaintiffs cannot establish that the HuntDefendants breached a duty of care because they do not have the necessary expert testimony, (3) Plaintiffs cannot establish that any of their injuries were proximately caused by mold exposure, (4) Plaintiffs cannot establish that the Hunt Defendants breached the lease agreement, (5) Plaintiffs cannot establish an underlying tort for a civil conspiracy claim, (6) Plaintiffs cannot establish a claim for constructive eviction or SCRA claim because they were never evicted (constructively or otherwise), (7) Plaintiffs' third-party beneficiary claim is expressly disclaimed by the Master Development and Management Agreement entered into by the Air Force and Forest City Southern, and (8) Plaintiffs claims for alter ego, fraudulent concealment, and intentional endangerment are not independent causes of action. FCRM makes the same arguments in its Motion for Summary Judgment, but also asserts that it was never party to the lease agreement Plaintiffs signed.
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[T]he nonmovant must go beyond the pleadings and designatespecific facts showing that there is a genuine issue for trial." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
"A genuine dispute of material fact means that 'evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If the evidence presented by the nonmovant "'is merely colorable, or is not significantly probative,' summary judgment is appropriate." Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671 F.3d 512, 516 (5th Cir. 2012) (quoting Anderson, 477 U.S. at 249). In deciding whether summary judgment is appropriate, the Court views the evidence and inferences in the light most favorable to the nonmoving party. RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
A threshold issue not directly addressed by the parties is the impact of Keesler Airforce Base's status as a federal enclave on the choice of substantive law for Plaintiffs' personal injury claims. See United States v. Tax Comm'n of Miss., 421 U.S. 599, 600-01 (1975). "Generally, when an area in a State becomes a federal enclave, 'only the [state] law in effect at the time of the transfer of jurisdiction continues in force' as surrogate federal law." Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (quoting James Stewart & Co. v. Sadrakula, 309 U.S. 94, 100 (1940)). Id. (citations omitted). "This approach ensures 'that no area however small will be without a developed legal system for private rights,' while simultaneously retaining the primacy of federal law and requiring future statutory changes to be made by Congress." Id. (quoting Sadrakula, 309 U.S. at 100; citing Tax Comm'n of Miss., 412 U.S. at 370 n.12).
Congress has eliminated the need to determine Mississippi personal injury law at the time Keesler became a federal enclave. 28 U.S.C. § 5001 provides that current state law governs actions for personal injuries that occur "in a place subject to the exclusive jurisdiction of the United States within a State." 28 U.S.C. § 5001; see Rodriguez v. Nationwide Homes, Inc., 765 F. App'x 782, 785 (10th Cir. 2018); La. United Bus. Ass'n Cas. Ins. Co. v. J & J Maint., Inc., 133 F. Supp. 3d 852, 863-64 (W.D. La. 2015). Thus, § 5001 adopts and incorporates current Mississippi law governing personal injury actions. Vasina v. Grumman Corp., 644 F.2d 112, 117 (2d Cir. 1981) (addressing § 5001's predecessor, 16 U.S.C. § 457); Voelkel v. Gen. Motors Corp., 846 F. Supp. 1468, 1473 (D. Kan.), on reconsideration, 846 F. Supp. 1482 (D. Kan. 1994), aff'd, 43 F.3d 1484 (10th Cir. 1994) (same).
Plaintiffs' negligence and gross negligence claims are claims for personal injury caused by their alleged exposure to toxic mold in their leased premises. "Such a claim is one for toxic tort." Shed v. Johnny Coleman Builders, Inc., 761 F. App'x 404, 406 (5th Cir. 2019). "In any tort case, identifying and proving the source of the harm that proximately caused a plaintiff's injuries is essential." Smith v.Union Carbide Corp., 200 So. 3d 1035, 1041 (Miss. 2016) (quoting Miss. Valley Silica Co. v. Reeves, 141 So. 3d 377, 382 (Miss. 2014)). Shed, 761 F. App'x at 406 (citing Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007)); see also Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 670 (5th Cir. 1999).
"Under Mississippi law, actions involving 'medically complicated' injuries require expert testimony on causation." Savage v. Pilot Travel Centers, L.L.C., 464 F. App'x 288, 290-91 (5th Cir. 2012); see also Cole v. Superior Coach Corp., 234 Miss. 287, 106 So.2d 71, 72 (1958) (). Plaintiffs' mold-exposure claims allege medically complicated injuries, which require expert testimony on causation.3 See Cur...
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