ALVIS CHERRY, ET AL.
LAWSON REALTY CORPORATION, ET AL.
THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Timothy S.
STEPHEN R. McCULLOUGH, JUSTICE
Cherry and Ashley Aldridge filed a multi-count complaint
alleging Cherry suffered damages after being exposed to mold
in their apartment. The trial court dismissed the two counts
of their complaint that were based on the common law. The
court reasoned that the General Assembly intended to abrogate
such common law causes of action when it enacted Code §
8.01-226.12. For the reasons noted below, we conclude that
the General Assembly did not intend to disturb existing
causes of action under the common law when it enacted this
statute. Accordingly, we reverse the judgment below and
remand for further proceedings.
plaintiffs filed this complaint against, among others, their
landlord and a real estate management company, alleging that
the apartment they rented exposed them to excessive moisture
and mold and that they suffered injuries as a
result. The complaint includes five counts: counts
I and II sought recovery for violation of the Virginia
Residential Landlord and Tenant Act, Code §§
55-248.2 through -248.40 ("VRLTA"), and for breach
of contract; counts III and IV allege, respectively, common
law negligence and per se negligence; and count V
alleges actual or constructive fraud.
specifically with respect to the negligence counts, the
complaint alleges that the landlord was negligent in failing
to warn of known and concealed defects that rendered the
occupation of the premises dangerous, did not perform repairs
with reasonable care, and did not maintain in a safe and
habitable condition the premises outside of the
plaintiff's exclusive possession and control. The per
se negligence count cited breaches of the Virginia
Maintenance Code in addition to common law duties.
the complaint alleges that the move-in inspection did not
reveal any visible mold. Approximately one month later,
however, a line from the HVAC unit clogged and caused water
to pour out. The water soaked the HVAC closet wall as well as
the living room floor and carpet. The complaint states that
the landlord unclogged the line but did not address the wet
carpet. Additional clogs caused more water to leak into the
apartment, and the landlord did not properly dry the carpet.
Instead, the landlord used fans and a blower. The plaintiffs
allege that the HVAC closet became covered in mold and the
carpet began to smell bad.
plaintiffs further allege that mushrooms began to grow on the
carpet, and that the landlord took inappropriate steps in
response, such as removing the baseboard along the living
room floor. According to the plaintiffs, some drywall
crumbled into pieces and "[l]arge areas of black mold
growths were visible behind the drywall openings." The
plaintiffs allege that the landlord's removal of the wall
board, trim, and other building materials allowed mold spores
to spread. After several additional ineffectual steps by the
landlord to control the mold, the tenants moved out.
defendants filed an answer to the complaint, in which they
denied the plaintiffs' allegations. The defendants also
moved for summary judgment regarding the plaintiffs'
common law claims, which the court denied. The defendants
further moved to restrict the plaintiffs' opening
statements. At a pre-trial conference, the court announced
that its review of the law led it to conclude that Code
§ 8.01-226.12 established "a direct cause of action
for personal injury and property damage whenever the landlord
or the managing agent with maintenance responsibilities
failed to remediate visible mold in accordance with codified
Professional Standards for Mold Remediation." In
addition, the court held that "with the enactment of . .
. Code § 8.01-226.12 [the General Assembly] intended to
abrogate the application of all common law claims for
personal injury involving landlord/tenant
relationships." Based on these rulings, the trial court
dismissed with prejudice counts III and IV of the complaint.
The court then certified its decision for an interlocutory
appeal under Code § 8.01-670.1.
Preservation of the arguments for appeal.
Rule 5:25, this Court may not consider a trial court's
ruling as a basis for reversal "unless an objection was
stated with reasonable certainty at the time of the
ruling." Code § 8.01-384(A) provides in relevant
part that "[a]rguments made at trial via . . . recital
of objections in a final order . . . shall, unless expressly
withdrawn or waived, be deemed preserved therein for
assertion on appeal." Following entry of the trial
court's memorandum opinion, the plaintiffs submitted a
number of objections that they appended to the trial
court's order dismissing the negligence counts. The court
had the opportunity to consider these objections.
on Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494
(2007), the landlord asserts that counsel was required to
additionally ask the court for a ruling in accord with those
objections. We disagree and find Nusbaum
distinguishable. In that case, we held that an argument was
defaulted because, first, at the time counsel made a general
objection, the court had not ruled on the due process
question raised on appeal, and, second, counsel
"actually stated, on more than one occasion, that he was
not asking the court to reconsider any ruling."
Id. at 403-05, 641 S.E.2d at 503-05. It was this