PRESENT: All the Justices
WILLIAM M. SALES
OPINION BY
v. Record No. 090143 JUSTICE S. BERNARD GOODWYN
February 25, 2010
KECOUGHTAN HOUSING COMPANY,
LTD., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Louis R. Lerner, Judge
In this appeal we consider whether the circuit court erred
in sustaining a demurrer filed by a landlord and its agent,
when a tenant claimed to have suffered personal injuries and
property damage as a result of misrepresentations and negligent
repairs.
William M. Sales (Sales) filed a complaint against
Kecoughtan Housing Company (Kecoughtan) and Abbitt Management,
Inc. (Abbitt) alleging one count of defective repair, one count
of actual fraud and one count of constructive fraud.
Kecoughtan and Abbitt filed a demurrer to the complaint. The
circuit court sustained the demurrer as to all three counts and
granted Sales leave to amend. Sales filed an amended
complaint, expanding upon but including the same three counts.
Kecoughtan and Abbitt both filed demurrers to the amended
complaint. After argument, the circuit court sustained the
demurrers as to all counts and dismissed the amended complaint
with prejudice. Sales appeals.
Facts
The circuit court decided this case upon a demurrer
without an evidentiary hearing. Thus, we will summarize the
facts as alleged in the pleadings. Eagle Court Condominium
Unit Owners Ass’n v. Heatilator, Inc., 239 Va. 325, 327, 389
S.E.2d 304, 304 (1990). In doing so, we consider the facts
stated and all those reasonably and fairly implied in the light
most favorable to the nonmoving party, Sales. Yuzefovsky v.
St. John’s Wood Apartments, 261 Va. 97, 102, 540 S.E.2d 134,
137 (2001).
Sales entered into a rental agreement for an apartment
owned by Kecoughtan. Throughout the time of Sales’ tenancy,
Kecoughtan employed Abbitt to manage the apartment where Sales
resided. After possessing the apartment for several months,
Sales informed Abbitt that there was mold growing in the
property and requested repair. Abbitt, acting as an agent for
and in concert with Kecoughtan, entered the property to repair
the moldy areas of the property. Thereafter, Abbitt repeatedly
told Sales that the mold problem had been remedied and that the
property was safe for habitation. Based upon Abbitt’s
representations about the repairs, Sales continued to reside in
the apartment and made payments pursuant to the terms of the
rental agreement.
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A few months later, mold began growing in Sales’ eye.
Sales claims this has caused him serious and permanent injury
for which he has received, and in the future will continue to
receive, medical and hospital care and treatment. He also
alleges that mold infested and destroyed all his personal
property kept in the apartment.
In his amended complaint, Sales claims that Abbitt
performed the mold repairs in a careless, reckless and
negligent manner, resulting in the continued growth and spread
of mold in the property. Specifically, Sales claims that
Abbitt painted over the mold and did not perform any other
remediation, and that Abbitt knew or should have known that
painting over the mold would not remedy the mold problem.
Sales alleges that as a result of the negligence of Kecoughtan
and Abbitt in repairing the property, he suffered serious and
permanent injuries to his eye as well as damage to his personal
property.
Sales also asserts causes of action for actual and
constructive fraud, claiming that Kecoughtan and Abbitt knew
that the repairs made by Abbitt were totally insufficient, but
knowingly misrepresented to Sales that the repairs were
adequate, that the mold problem had been remedied and that the
property was safe for habitation, with the intent of inducing
Sales to continue in his tenancy in the property. Sales claims
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that he reasonably relied on these false representations and
was damaged as a result. Sales also claims that if the
misrepresentations were innocently or negligently made, he
still reasonably relied upon them and was damaged as a result
thereof.
Analysis
The purpose of a demurrer is to determine whether a
complaint states a cause of action upon which relief may be
granted. Tronfeld v. Nationwide Mutual Ins. Co., 272 Va. 709,
712-13, 636 S.E.2d 447, 449 (2006); Welding, Inc. v. Bland
County Service Auth., 261 Va. 218, 226, 541 S.E.2d 909, 913
(2001). “A demurrer admits the truth of all properly pleaded
material facts. ‘All reasonable factual inferences fairly and
justly drawn from the facts alleged must be considered in aid
of the pleading.’” Dodge v. Randolph-Macon Woman’s College,
276 Va. 1, 5, 661 S.E.2d 801, 803 (2008) (citation omitted);
accord Tronfeld, 272 Va. at 713, 636 S.E.2d at 449; Fuste v.
Riverside Healthcare Ass’n, 265 Va. 127, 131, 575 S.E.2d 858,
861 (2003). On appeal, the granting of a demurrer is reviewed
de novo because it is a question of law. Mark Five
Construction, Inc. v. Castle Contractors, 274 Va. 283, 287, 645
S.E.2d 475, 477 (2007).
Sales claims that his amended complaint properly pleads a
cause of action for defective repair. He argues that the
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amended complaint states that Abbitt, acting as agent for and
in concert with Kecoughtan, entered the property for the
purpose of making repairs. Sales claims that Abbitt performed
the repairs in a careless, reckless and negligent manner, and
that as a result of the defendants’ negligence, mold began
growing in Sales’ eye and infested and destroyed Sales’
personal property in the apartment.
Kecoughtan and Abbitt claim that Sales failed to state a
cause of action for negligent repair because there is no
allegation that the defective condition resulted from Abbitt’s
repairs. Kecoughtan and Abbitt argue that in order to be
liable for breach of the duty to make repairs in a non-
negligent fashion, the repairs must create the danger that
causes the injury, i.e., the repairs must result in a new
danger. They point out that because the painting over the mold
did not create any new defective condition, Kecoughtan and
Abbitt should not be held liable for the injuries resulting
from the mold.
Although a landlord does not have a common law duty to
make repairs after delivering possession to the tenant, see
Paytan v. Roland, 208 Va. 24, 26, 155 S.E.2d 36, 37 (1967),
where the landlord enters leased premises for the purpose of
making repairs, he must use reasonable care in performing the
work. Holland v. Shively, 243 Va. 308, 311, 415 S.E.2d 222,
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224 (1992). “In order to recover against the landlord for
injuries arising from a defective condition resulting from the
repairs, the tenant has the burden of proving that the landlord
failed to use reasonable care. The mere fact that a defect
remained after the work was done is not alone sufficient.”
Kesler v. Allen, 233 Va. 130, 133, 353 S.E.2d 777, 779-80
(1987) (citing Oden v. Housing Authority, 203 Va. 638, 640, 125
S.E.2d 843, 845 (1962)).
In Holland, the plaintiff was injured on the steps of the
porch of the subject property following the landlord’s
negligent repair of the porch. 243 Va. at 310, 415 S.E.2d at
223. As in the instant case, the danger that led to the
Holland plaintiff’s injury was not a new condition created by
the landlord’s attempt to repair. The plaintiff was injured by
the faulty steps, which existed before and after the landlord’s
repair. Id. However, this Court stated:
We hold that the record contains sufficient evidence
upon which the jury could have relied to find that Mr.
Shively was negligent. Before Mrs. Holland fell, her
husband had fallen through the porch. Thereafter Mr.
Shively entered the premises and repaired a portion of
the porch. The jury was entitled to find that Mr.
Shively was negligent because his actions of merely
removing the rotten boards did not correct the defects
in the steps which are an integral component of the
porch.
Id. at 311, 415 S.E.2d at 224.
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Applying these well-established principles, we hold that
Sales pled a cause of action for negligent repair sufficient to
withstand a demurrer. The amended complaint states that
Abbitt, acting as agent for and in concert with Kecoughtan,
entered the property for the purpose of making repairs, that it
performed the repairs in a careless, reckless and negligent
manner, and that as a result of the negligent conduct, mold
began growing in Sales’ eye and infested his property, causing
personal injury and property damage. The circuit court erred
in granting the demurrer on the defective repair cause of
action, and the plaintiff should be given the opportunity to
prove his allegations concerning the negligence of Kecoughtan
and Abbitt and that such negligence proximately resulted in
Sales’ alleged damages.
Sales asserts causes of action for fraud, both actual and
constructive, based on Kecoughtan’s and Abbitt’s alleged
misrepresentations that the property was safe for habitation
and that the mold problem had been remedied. Kecoughtan and
Abbitt argue that Sales fails to state a cause of action for
actual or constructive fraud because the claimed
representations that the apartment was safe for habitation and
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that the mold problem had been remedied were matters of opinion
and not statements of fact. *
In order to state a cause of action for fraud, a plaintiff
must plead that there was “a false representation of a material
fact, made intentionally and knowingly, with intent to
mislead.” Elliott v. Shore Stop, Inc., 238 Va. 237, 244, 384
S.E.2d 752, 756 (1989). The plaintiff must also plead that he
relied on that false representation and his reliance led to
damages. Id. In order to state a cause of action for
constructive fraud, the plaintiff is only required to plead
that the false representation was made innocently or
negligently, while all other elements remain the same.
Prospect Dev. Co. v. Bershader, 258 Va. 75, 86, 515 S.E.2d 291,
297 (1999). An action based on fraud may not be predicated on
unfulfilled promises or statements about future events. Id.
Further, the statement that serves as the foundation for an
action in fraud, either actual or constructive, must be a
misrepresentation of an existing fact and not the expression of
an opinion. McMillion v. Dryvit Systems, Inc., 262 Va. 463,
471, 552 S.E.2d 364, 368-69 (2001).
*
An appellate court’s consideration of the demurrer on
appeal is limited to the grounds raised by the demurrer.
McMillion v. Dryvit Systems, Inc., 262 Va. 463, 470, 552 S.E.2d
364, 368 (2001).
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Whether a statement is a statement of fact or a statement
of opinion is determined on a case-by-case basis, “taking into
consideration the nature of the representation and the meaning
of the language used as applied to the subject matter and as
interpreted by the surrounding circumstances.” Packard
Norfolk, Inc. v. Miller, 198 Va. 557, 562, 95 S.E.2d 207, 211
(1956). In Packard, this Court held that the statement that a
car was in perfect condition was “a representation as to the
present quality or character of the article” and “clearly a
representation of fact and not a promise as to something to be
done in the future.” Id. at 563, 95 S.E.2d at 211. In Tate v.
Colony House Builders, 257 Va. 78, 83-84, 508 S.E.2d 597, 600
(1999), this Court stated that “the new dwelling house was fit
for habitation” was a statement of fact because it was a
representation of the present quality or character of the
property.
In this case, we hold that Abbitt’s alleged statements
that the apartment was safe for habitation and that the mold
problem had been remedied were statements of the present
quality or character of the instant property, and thus
statements of fact rather than opinion. These statements are
alleged in the amended complaint to be misrepresentations of a
material fact that were made to Sales, that Sales relied upon
them, and that he was damaged as a result thereof. Thus,
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whether made intentionally or negligently, these alleged
statements may serve as a basis for an action for actual or
constructive fraud. The circuit court erred in sustaining the
demurrer and dismissing Sales’ claims for actual and
constructive fraud.
Conclusion
For the foregoing reasons, we hold that the circuit court
erred in sustaining the defendants’ demurrer to Sales’ amended
complaint. Accordingly, we will reverse the judgment of the
circuit court and remand this matter to the circuit court for
further proceedings.
Reversed and remanded.
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