GEORGE TINGLER, ET AL.
GRAYSTONE HOMES, INC.
THE CIRCUIT COURT OF CULPEPER COUNTY Susan L. Whitlock,
PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and
ARTHUR KELSEY, JUSTICE.
pleadings in this case allege that George and Crystal Tingler
entered into a construction contract in 2009 with a home
builder, Graystone Homes, Inc., to construct a new home on
property owned by a family-run company, Belle Meade Farm,
LLC. After the house had been built, rain water leaked into
the house and mold developed. Graystone tried, but failed, to
fix the leaks and to remediate the mold.
Tinglers and their four children abandoned the home due to
the mold and sued Graystone, seeking tort remedies for
personal injuries, property damage, and economic losses. The
Tinglers and Belle Meade separately sued Graystone, seeking
contract remedies for property damage and economic losses.
Sustaining Graystone's demurrers, the circuit court
dismissed all claims in each of the complaints. We affirm in
part and reverse in part.
this appeal arises from the grant of a demurrer, we accept as
true all factual allegations expressly pleaded in the
complaint and interpret those allegations in the light most
favorable to the plaintiff." A.H. ex rel. C.H. v.
Church of God in Christ, Inc., 297 Va. ___, ___, 831
S.E.2d 460, 465 (2019) (citation omitted). "'To
survive a challenge by demurrer,' however, factual
allegations 'must be made with "sufficient
definiteness to enable the court to find the existence of a
legal basis for its judgment."'" Id.
(citation omitted). "A plaintiff may rely upon inferences
to satisfy this requirement but only 'to the extent that
they are reasonable.'" Id.
(emphasis in original) (citation omitted).
"Distinguishing between reasonable and unreasonable
inferences is 'a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense' guided by the principle that 'a well-pleaded
complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable.'"
Id. (citations omitted).
2015, the Tingler family and Belle Meade filed a single
complaint alleging 24 contract, tort, and statutory claims
against Graystone. On the ground of misjoinder, the circuit
court entered a consent order requiring the plaintiffs to
file separate complaints. The order specified that the
Tinglers and their four children must file separate
complaints asserting "each of their personal injury
claims." J.A. at 4. The order further directed that the
Tinglers and Belle Meade must file a single complaint
asserting "any non-personal injury claims."
the plaintiffs had refiled seven separate complaints pursuant
to the court's directions, the court sustained
Graystone's demurrers to all counts and dismissed each
complaint with leave to amend. The court held that, under the
source-of-duty rule, no negligence claim could prevail
because "Graystone's alleged misdeeds consist of
its failure to perform or fully perform its contractual
duties." Id. at 452-53. The court dismissed
Belle Meade's contract claims, holding that Belle Meade
was not a party to the agreement and thus had no standing to
bring the claims. The court dismissed the Tinglers'
contract claims because the Tinglers had no standing given
that the home had become a fixture of the land owned by Belle
Meade, not by the Tinglers.
response to the circuit court's ruling on the demurrers,
the Tinglers and Belle Meade filed a second amended
complaint,  which amplified their contract claims that
were based upon agency and third-party-beneficiary
principles. They also asserted negligence claims for various
forms of property damage: real and personal as well as
tangible and intangible. The Tinglers and their children each
filed amended complaints that attempted to bolster their tort
claims for personal injuries. The Tingler family also claimed
to have sustained property damage to the home and its
contents and to have incurred unspecified expenses. Graystone
responded with another round of demurrers to each of the
complaints. The court sustained the demurrers, finding that
its earlier reasoning applied equally to all the amended
complaints. In its final orders, the court dismissed all
claims in each of the cases with prejudice.
few exceptions, the amended complaints assert a common set of
factual allegations. We repeat these allegations as if they
were true, but, of course, we only presume them to be so
given the procedural posture of the case.
2009, Graystone entered into a construction contract with the
Tinglers to build a new home with a purchase price of $495,
000. The first paragraph of the contract states: "This
agreement is made this date between George and Crystal
Tingler (hereinafter referred to as 'Owner') and
Graystone Homes, Inc. (hereinafter referred to as
'Contractor') for the purpose of erecting a new
home." Id. at 99 (emphasis omitted). At the end
of the contract, under the heading "Owner," the
Tinglers signed their names. Id. at 106 (altering
capitalization). Under George Tingler's signature appears
the title "Owner Representative." Id.
contract does not mention Belle Meade or expressly state that
the Tinglers were executing the contract in any agency
capacity. At the time of construction, however, Belle Meade
was the title owner of the farm land on which the home was
built. The address listed for the location of the new home
was "21416 Belle Meade Farm Road." Id. at
82, 123, 136, 149, 161, 174, 186; see id. at 99,
107, 121. The second amended complaint asserts that Graystone
knew that Belle Meade would and did make all payments due
under the contract. Graystone further understood that
"Belle Meade Farm and the Tinglers intended in the
future to partition the real property on which the Home was
located from the rest of the farm land . . . and transfer
ownership of both the real property and the completed Home to
the Tinglers." Id. at 83. Based upon these
allegations, the Tinglers claim that they entered into the
contract on behalf of their principal, Belle Meade, and thus,
that Belle Meade was in privity of contract with Graystone
and could sue to enforce the contract. In the alternative,
they claim that Belle Meade was an intended third-party
beneficiary of the contract with Graystone.
second amended complaint avers that in early 2010, "[a]t
the time of the 30-day inspection of the Home" permitted
under the contract, the Tinglers discovered leaks at the
patio French doors in the dining room and reported the leaks
to Graystone. Id. at 84. Graystone responded by
applying additional sealants and by replacing damaged
hardwood flooring. In early 2011, the Tinglers discovered and
reported another leak in the dining room. Graystone responded
by installing additional flashing and by replacing hardwood
flooring. On neither occasion did Graystone specifically look
experiencing medical symptoms in early 2014, the Tinglers
hired an inspector who discovered mold in the basement
underneath the dining room where the leaks had occurred,
elevated levels of airborne mold spores throughout the home,
and elevated levels of moisture in the dining and kitchen
areas near the patio French doors. In October 2014, Graystone
removed and reinstalled the patio French doors, windows, and
hardwood flooring. Graystone also installed drain pans
underneath the patio French doors. When the patio French
doors continued to leak rainwater thereafter, Graystone
installed additional sealants around the patio French doors.
Graystone also applied an anti-microbial solution, attempting
to clean up the mold and to prevent its growth. At that time,
however, Graystone did not inspect for mold behind the
drywall in this area.
that month, a reinspection of the home revealed elevated
moisture levels in the dining and kitchen areas near the
patio French doors. A Graystone employee met the inspector at
the home. The Graystone employee cut a hole in the dining
room drywall and removed from the wall cavity "a large
section of wet, moldy" insulation. Id. at 86,
see also id. at 125-26, 138-39, 152, 164, 176, 188.
The employee dropped the insulation on the floor and cleaned
up the mess with the Tinglers' vacuum cleaner. Before the
Graystone employee performed this work, Crystal Tingler had
asked whether the personal property and furniture in the area
should be covered, but the Graystone employee said that such
action was not necessary and did not place a containment
barrier around the work site.
removing the mold-laden insulation, the Graystone employee
covered the drywall hole with a black garbage bag. In
November 2014, Graystone placed containment sheeting in the
dining room at the Tinglers' request. A little over a
week later, the Tingler family vacated the home because of
continued physical symptoms that they attributed to mold
exposure. After the Tinglers had vacated the home, a
remediation contractor concluded that Graystone's
containment sheeting had been improperly placed, and another
inspector visited the home and found elevated levels of mold
spores and moisture.
their second amended complaint, the Tinglers and Belle Meade
allege that Graystone breached the contract during the
construction process by failing to supervise its workers and
by failing to construct the home as promised -
"skillfully, carefully, diligently, in a good,
workman-like manner, and in compliance with all applicable
laws, ordinances, and building codes." Id. at
90. They also allege that Graystone breached its contractual
warranty by not building the home in accordance with industry
standards, by not fixing the original defects, and by not
remediating the mold that occurred as a result. They add
various negligence claims as well, alleging theories of
negligent construction, negligent repair, and negligence per
amended personal-injury complaints, the Tinglers and their
children each allege that Graystone negligently constructed
the home, negligently attempted to repair it, and committed
negligence per se by violating building codes. All of the
amended complaints at issue in this appeal allege various
examples of Graystone's poor workmanship with a list of
24 items. Of those 24 items, 15 begin with the phrases
"[f]ailure to" or "[f]ailing to" do a
particular contractual task, including inter alia:
• "[f]ailure to construct the Home so that it had a
weather-resistant exterior wall envelope";
• "[f]ailure to provide a means to drain water
which entered the building components of the Home";
• "[f]ailure to install the manufactured stone
veneer siding ('MSV') with drainage provisions";
• "[f]ailing to sufficiently fasten the vinyl
•" [f] ailing to properly install doors, and corner
seal pads and weather stripping with or adjacent to the
doors, in the Home to prevent water intrusion[.]"
Id. at 87-89, 127-29, 140-42, 153-55, 165-67,
those 24 items, 8 state and 1 implies that Graystone
"[i]ncorrectly" or "[i]mproperly"
performed some contractual task. Id. Examples
include "[i]ncorrectly taping the weather resistant
barrier" and "[i]mproperly installing or not
installing required flashing." Id. at 88, 128,
141, 154, 166, 178, 190. These allegations are repeated
verbatim in the second amended complaint as specific
instances in which Graystone breached its contractual duty to
construct the home in a workmanlike manner and to competently
repair any later-discovered defects pursuant to the warranty
provisions of the contract.
negligence counts, each complaint alleges that
"Graystone breached this duty . . . by failing to use
proper workmanship in the construction of the Home; failing
to use due care in the inspection of the Home; and failing to
use due care in the supervision of the work of others on the
Home." Id. at 95, 130, 142, 155, 168, 180, 192.
Each complaint also alleges in the negligent-repair counts
that "Graystone breached this duty . . . by failing to
use proper workmanship in the repair of the Home, failing to
use due care in the inspection of the Home, and failing to
use due care in the remediation of mold growth of the
Home." Id. at 96, 131, 143, 156, 168, 181, 193.
Based upon these allegations, the complaints contend, it was
reasonably foreseeable that the poor workmanship in the
construction and repair of the home would allow rain water
into the home, that the water would cause mold, and that the
mold would make the Tingler family ill and would damage their
Tingler family alleges that they suffered "personal
injury" by being "exposed to the unhealthy
conditions that developed in the Home." Id. at
130-31, 143, 156, 168-69, 180-81, 192-93. The Tinglers and
two of their children, the complaints assert, have been
"diagnosed with mold toxin syndrome as a result of
[their] exposure to the conditions in the Home,"
id. at 126, 140, 153, 165, and the entire Tingler
family remains under continuing medical care for their
symptoms, see id. at 126, 139, 152, 164, 177, 189.
The Tinglers and two of their children each seek $5 million
in damages for their personal injuries, while the remaining
two Tingler children each seek $200, 000 in damages for their
appeal focuses on two arguments. First, the Tingler family
contends that their personal-injury and property-damage
claims should have survived demurrer because the
source-of-duty rule does not preclude tort remedies for
Graystone's negligence. Second, the Tinglers and Belle
Meade contend that their contract claims also should have
survived demurrer because they pleaded that the Tinglers had
served as agents for Belle Meade when they had entered into
the contract and, in the alternative, that Belle Meade was an
intended third-party beneficiary of the contract.
Negligence Tort Claims Arising Out of a Contractual
Virginia, "'[t]he question of liability for
negligence cannot arise at all until it is established that
the man who has been negligent owed some duty to the person
who seeks to make him liable for his negligence."
Dudley v. Offender Aid & Restoration of Richmond,
Inc., 241 Va. 270, 277 (1991) (quoting Le Lievre v.
Gould  1 Q.B. 491 at 497 (Eng.) (opinion of Esher,
M.R.)). The ultimate question "[w]hether a legal duty in
tort exists is a pure question of law to be reviewed de
novo." Brown v. Jacobs, 289 Va. 209, 215 (2015)
look for an answer to that "pure question of law,"
id. (citation omitted), we begin with the axiom that
"there is no such thing as negligence in the abstract,
or in general, or as sometimes is said, in
vacuo." Kent v. Miller, 167 Va. 422,
425-26 (1937). The history of our common law, Justice
Holmes reminded us, has made "clear that the featureless
generality, that the defendant was bound to use such care as
a prudent man would do under the circumstances, ought to be
continually giving place to the specific one, that he was
bound to use this or that precaution under these or those
circumstances." Oliver Wendell Holmes, Jr., The Common
Law 111 (1881). "From the time of Alfred to the present
day, statutes and decisions have busied themselves with
defining the precautions to be taken in certain familiar
cases; that is, with substituting for the vague test of the
care exercised by a prudent man, a precise one of specific
acts or omissions." Id. at 112.
in that tradition, we do not ask simply whether
Graystone's actions or inactions could have foreseeably
caused water leaks, mold growth, and resultant personal
injuries, property damage, and economic losses. We ask
instead whether, under our common-law precedents, tort
liability may be imposed upon a home builder who negligently
fails to weatherproof the home as required by a construction
contract. This question takes us to the very definition of a
The word "tort" has a settled meaning in Virginia.
"A tort is any civil wrong or injury; a wrongful act
(not involving a breach of contract) for which an action will
"Tort" is also defined as the violation of some
duty owing to the plaintiff imposed by the general law or
otherwise. Generally, the "duty must arise by operation
of law and not by mere agreement of the parties." Stated
differently, a "tort" is a "legal wrong
committed upon the person or property independent of
Glisson v. Loxley, 235 Va. 62, 67 (1988) (citations
omitted), superseded by statute on other grounds,
1993 Acts ch. 928 (codified as amended at Code §
8.01-581.2). See generally J.F. Clerk & W.H.B.
Lindsell, The Law of Torts 1 (1889) ("A tort may be
described as a wrong independent of contract, for which the
appropriate remedy is a common law action."); Thomas M.
Cooley, The Elements of Torts 2 (1895) ("A tort, then,
is any wrong not consisting in mere breach of contract, for
which the law undertakes to give to the injured party some
appropriate remedy against the
wrong-doer."). By its very nature, tort law imposes
duties upon the otherwise unwilling. Consent concepts that
are inherent in contract law offer no solace to tortfeasors.
determining whether a cause of action sounds in tort,
contract, or both, 'the source of the duty violated must
be ascertained.'" MCR Fed., LLC v. JB&A,
Inc., 294 Va. 446, 458 (2017) (citation omitted). In
making this determination, we examine the specific nature of
the allegations of negligence:
If the cause of complaint be for an act of omission or
non-feasance which, without proof of a contract to do
what was left undone, would not give rise to any cause of
action (because no duty apart from contract to do what is
complained of exists) then the action is founded upon
contract, and not upon tort. If, on the other hand, the
relation of the plaintiff and the defendants be such that a
duty arises from that relationship, irrespective of the
contract, to take due care, and the defendants are negligent,
then the action is one of tort.
Richmond Metro. Auth. v. McDevitt St. Bovis, Inc.,
256 Va. 553, 558 (1998) (emphases added) (citation omitted);
accord Atlantic & Pac. Ry. v. Laird, 164 U.S.
393, 399 (1896); Burks, supra note 9, § 234(1), at 406.
also emphasized that "the mere fact that [a] plaintiff
has sought recovery for pain and suffering does not, standing
alone, convert [a] contract claim into an action in
tort." Glisson, 235 Va. at 69. No matter the
alleged harm, tort liability cannot be imposed upon a
contracting party for failing to do a contractual task when
no common-law tort duty would have required him to do it
anyway - and thus, as the maxim restates, "in order to
recover in tort, the duty tortiously or negligently breached
must be a common law duty, not one existing between the
parties solely by virtue of the contract, '" MCR
Fed., LLC, 294 Va. at 458 (citation omitted); see
Holles v. Sunrise Terrace, Inc., 257 Va. 131, 136
(1999). Framed this way, the source-of- duty
rule attempts to mark off the boundaries of civil liability
and to protect our jurisprudence from the modern trend that
is intent on "turning every breach of contract into a
tort," MCR Fed., LLC, 294 Va. at 458 (citation
omitted), a goal pursued through the "'more or less
inevitable efforts of lawyers" seeking extra-contractual
remedies, Kamlar Corp. v. Haley, 224 Va. 699, 706
(1983) (citation omitted).
we recognize that "[t]he borderland of tort and
contract, and the nature and limitations of the tort action
arising out of a breach of contract, are poorly
defined," it is equally true that "the very
uncertainty of the rules has permitted a degree of
flexibility which has advantages of its own." William
Lloyd Prosser, Selected Topics on the Law of Torts 452
(reprt. ed. 1982) [hereinafter Prosser, Selected Topics].
This flexibility is reason enough, we believe, to resist the
modern "Contort" trend toward amalgamating contract
and tort law into a grand legal "syncretism." Grant
Gilmore, The Death of Contract 98 (Ronald K.L. Collins ed.,
2d ed. 1995).
Costello once described the source-of-duty rule as
"charmingly simple." John L. Costello, Virginia
Remedies § 21.05[d], at 21-43 (4th ed. 2011). Critics
of the rule say that the charm wears off as soon as one tries
to apply it. Yet, apply it we must. And in this application,
as in so many areas of jurisprudence, we cannot be stymied
"by the question where to draw the line. That is the
question in pretty much everything worth arguing in the
law," Irwin v. Gavit, 268 U.S. 161, 168 (1925).
To be sure, the truism that a particular outcome often
"depends upon differences of degree" is no great
discovery because "[t]he whole law does so as soon as it
is civilized." Daniels v. Williams, 474 U.S.
327, 334-35 (1986) (citation omitted).
source-of-duty rule finds its most secure roots in the
historical distinction between the escalating degrees of
blameworthiness recognized by the common-law doctrines of
"omission or non-feasance" on the one hand,
Richmond Metro. Auth., 256 Va. at 558 (citation
omitted), and "misfeasance" or malfeasance on the
other, Prosser, Selected Topics, supra, at 387 &
n.37. This distinction developed "quite early" in
English common law. Id. at 387. Nonfeasance is
"[t]he failure to act when a duty to act exists."
Black's Law Dictionary 1265 (11th ed. 2019). Misfeasance
is "[a] lawful act performed in a wrongful manner,"
or, "[m]ore broadly, a transgression or trespass."
Id. at 1197. And malfeasance is ...