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Cherry v. Lawson Realty Corp.

Supreme Court of Virginia

May 3, 2018





         Alvis Cherry and Ashley Aldridge filed a multi-count complaint alleging Cherry suffered damages after being exposed to mold in their apartment.[1] 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.


         The 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.[2] 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.[3]

         More 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.

         Factually, 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.

         The 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.

         The 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.


         I. Preservation of the arguments for appeal.

         Under 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.

         Relying 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 ...

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