Joint Appendix — Lincoln Property Co. v. Roche

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—— -

Sur “ cust, t »‘

iLED

MAY 1 7 2005

OFFICE OF THE CLERK

No. 04-712

IN THE

Supreme Court of the United States

LINCOLN PROPERTY COMPANY AND

STATE OF WISCONSIN INVESTMENT BOARD,

Petitioners,

Vv.

CHRISTOPHE ROCHE AND JUANITA ROCHE,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

JOINT APPENDIX

GREGORY BECKWITH® Davip C. FREDERICK’

JERRY M. PHILLIPS Scott K. ATTAWAY

PHILLIPS, BECKWITH, KELLOGG, HUBER, HANSEN,

HALL & CHASE Toop, EVANS & FIGEeL, P.L.L.C.

10513 Judicial Drive 1615 M Street, N.W., Suite 400

Suite 100 Washington, D.C. 20036

Fairfax, Virginia 22030 (202) 326-7900

(703) 691-4100

“Counsel of Record

“Counsel of Record for Petitioners

for Respondents

May 16, 2005

(Additional Counsel Listed On Inside Cover)

PETITION FOR A WRIT OF CERTIORARI FILED: NOVEMBER 24, 2004

CERTIORARI GRANTED: FEBRUARY 28, 2005

RICHARD A. DEAN CONNIE N. BERTRAM

TUCKER, ELLIS & West LLP DARRYL L. FRANKLIN

1150 Huntington Bldg. VENABLE LLP

925 Euclid Avenue 575 7th Street, N.W.

Cleveland, Ohio 44115 Washington, D.C. 20004

(216) 592-5000 (202) 344-4000

Counsel for Lincoln

CAROL T. STONE Property Company

MICHAEL E. REHEUSER

JORDAN COYNE & SAviTs LLP

10509 Judicial Drive. Suite 200

Fairfax, Virginia 22030

(703) 246-0900

Counsel for State of Wisconsin

Investment Board

TABLE OF CONTENTS

Page

Relevant Docket Entries:

United States District Court for the Eastern

District of Virginia, Alexandria Division,

Juanita Roche v. Lincoln Property Co., et al.,

Civil Action No. O8-1SGB-A. ..........sssssscssssccsssescscccccessceeees l

United States District Court for the Eastern

District of Virginia, Alexandria Division,

Christophe Roche v. Lincoln Property Co., et

al., Civil Action No. 02-1390-A ...0..........ccccccccceeeeeeeeeeeees 3

United States Court of Appeals for the

Fourth Circuit, Christophe Roche, et al. v.

Lincoln Property Co., et al., No. 03-2064...................... 21

Notice of Motion for Judgment, Christophe Roche

v. Lincoln Property Co., et al., Law No.

L206874 (Fairfax Cty Cir. Ct. filed Aug. 26,

ihdeinatladias hentai den epnnsnsinarenetastannsmmnpenngnamnnnepsennense 25

Motion for Judgment, Christophe Roche v.

Lincoln Property Co., et al., Law No. L206874

(Fairfax Cty Cir. Ct. filed Aug. 26, 2002).................... 26

Notice of Motion for Judgment, Juanita Roche v.

Lincoln Property Co., et al., Law No. L206873

(Fairfax Cty Cir. Ct. filed Aug. 26, 2002).................... 51

Motion for Judgment, Juanita Roche v. Lincoln

Property Co., et al., Law No. L206873 (Fairfax

Cty Cir. Ct. filed Aug. 26, 2002) 20.0.........ccccccccccceeecenees 52

Notice of Removal, Christophe Roche v. Lincoln

Property Co., et al., Civil Action No. 02-1390-

A (E.D. Va. filed Sept. 17, 2002) .0..........ccccccccccccceeeenenes 76

Notice of Removal, Juanita Roche v. Lincoln

Property Co., et al., Civil Action No. 02-1389-

A (E.D. Va. filed Sept. 17, 2002) ..............cccccccccccceeencees 80

Notice of Filing of Notice of Removal, Christophe

Roche v. Lincoln Property Co., et al., Law No.

L206874 (Fairfax Cty Cir. Ct. filed Sept. 18,

SPENEEED cxscccscscnnsescensnssessenesseunsensssennsssenenasentesnnusemsednesenseat

Final Order, Juanita Roche v. Lincoln Property

Co., et al., Law No. L206873 (Fairfax Cty Cir.

es, Oh Ba ccrnstnineciniieneminitintetnstitieeiniatinmetinins

Final Order, Christophe Roche v. Lincoln Prop-

erty Co., et al., Law No. L206874 (Fairfax Cty

GED. GO, GRUB, G, SD cenecsensssssssessssescsrsnscnnammennsnscenen

Defendants Memorandum in Support of Their

Motion To Dismiss, Christophe Roche v.

Lincoln Property Co., et al., Civil Action No.

02-1390-A (E.D. Va. filed Oct. 8, 2002):

Ex. A (Roches’ Westfield Village Apartments

I ineictacintnnntitatannitecsnasiainmsnntdinieletienitadias

Memorandum Order, Christophe Roche, et al. v.

Lincoln Property Co., et al., Civil Action No.

02-1390-A (E.D. Va. Nov. 27, 2002)...............c.cece000e

Second Amended Complaint, Christophe Roche,

et al. vw. Lincoln Property Co., et al., Civil

Action No. 02-1390-A (E.D. Va. filed Dec. 16,

SUITED conssenesncoceecsmmmnnthidennninasminmeniiassenmbinemiiepindmmial

Defendant Lincoln Property Co.'s Answer to

Second Amended Complaint, Christophe

Roche, et al. v. Lincoln Property Co., et al.,

Civil Action No. 02-1390-A (E.D. Va. filed

Sa G Fae cerectecanrnntertnintcsiinnensntinnipniasiinaies

Answer of Defendant SWIB Investment Co. to

Plaintiffs) Second Amended Complaint,

Christophe Roche, et al. v. Lincoln Property

Co., et al., Civil Action No. 02-1390-A (E.D.

a, nD, Gh Ba cereeeienthinceicnttnctenineenetannietinis

Memorandum in Support of Plaintiffs’ Motion To

Amend Pleadings, Christophe Roche, et al. v.

Lincoln Property Co., et al., Civil Action No.

02-1390-A (E.D. Va. filed Feb. 7, 2003).....................

Ex. 1:

E-mail from Melvin Bryan to Lincoln

Property Co. business managers dated

IIMA eA AE OS a

Memorandum from Lincoln Property Co.'s

Summit Village Manager to Service Tech-

nicians dated Feb. 14, 2002 ....................ccccceeeeeee

Ex. G:

E-mail from Melvin Bryan to Dianna

McGaughey dated Jan. 18, 2002 ....................06

Deposition of Fred E. Chaney dated Feb. 13,

SED Cee cecccscessssessssssnssscsesensensssessssssssessemessnesse

Set of Interrogatories, Christophe Roche, et

al. v. Lincoln Property Co., et al., Civil Action

No. 02-1390-A (E.D. Va. filed Feb. 14, 2003)

26(a)(1), Christophe Roche, et al. v. Lincoln

Property Co., et al., Civil Action No. 02-1390-

A (E.D. Va. filed Feb. 14, 2003) (excerpt)..................

Order, Christophe Roche, et al. v. Lincoln Prop-

erty Co., et al., Civil Action No. 02-1390-A

(E.D. Va. Mar. 10, 2003) ..................

Defendants’ Memorandum of Law in Support of

Their Motion To Bar Testimony by Richard

Bernstein, M.D. and for Summary Judgment

on All Claims for Personal Injury, Christophe

Roche, et al. v. Lincoln Property Co., et all,

Civil Action No. 02-1390-A (E.D. Va. filed

Mar. 13, 2003):

Ex. B (Potomac Environmental Testing Ser-

vices Mold Investigation Report (Draft) dated

Se Se I ccertrirenniniettiontaitnindanintiiaitipesnen

Plaintiffs’ Memorandum of Law in Opposition to

Defendants’ Motion for Summary Judgment,

Christophe Roche, et al. v. Lincoln Property

Co., et al., Civil Action No. 02-1390-A (E.D.

Va. filed Mar. 13, 2003):

Ex. S (Transcription of taped meeting on

March 26, 2002, between Christophe Roche

and representatives of Lincoln, SWIB, and

SPO CREED covcecsnsnesssensssesanenpenantantadnmsatmenmarsaveenntests

Ex. 2:

E-mail from Melvin Bryan to Lincoln

business managers dated July 11, 2001..........

Handwritten Notes — undated.........................

Ex. 6 (Affidavit of Diana Coleman dated Feb.

Ex. 7 (Deposition of William Ray Travelstead

dated Feb. 11, 2003) (excerpt) ...................cccceceeeeee

Ex. 8 (Deposition of William Ray Travelstead

dated Feb. 11, 2003) (excerpt) .................ccccccccceeeee

Ex. 10:

Letter from Christophe and Juanita

ewer

Plaintiffs’ Motion To Remand Pursuant to 28

USC §1447(c), Christophe Roche, et al. v.

Lincoln Property Co., et al., Civil Action No.

02-1390-A (E.D. Va. filed Apr. 22, 2003)............

Memorandum in Support of Motion To Remand

for Lack of Subject Matter Jurisdiction,

Christophe Roche, et al. v. Lincoln Property

Co., et al., Civil Action No. 02-1390-A (E.D.

Va. filed Apr. 22, 2003) (excerpt).............---.....++

Tab 2 (Virginia State Corporation Commis-

sion Certificates for Lincoln Property Co. and

Lincoln Property Company dated Apr. 21,

Tab 13 (Letter from Connie Bertram to Jerry

M. Phillips dated Mar. 18, 2003).....................++

Opposition to Plaintiffs’ Motion To Remand,

Christophe Roche, et al. v. Lincoln Property

Co., et al., Civil Action No. 02-1390-A (E.D.

Va. filed Apr. 30, 2003):

Ex. 1 (Declaration of Dan M. Jacks dated

vi 1

Ex. E (Certificate of Existence and Arti- IN THE UNITED STATES DISTRICT COURT

cles of Incorporation for Lincoln E.C.W. FOR THE EASTERN DISTRICT OF VIRGINIA

Property Management) ...................00000000eseeeeeeene 265 ALEXANDRIA DIVISION

Ex. 2 (Deposition of Fred E. Chaney dated

Pe Gib Se i ccrnncnscscsatenscccdedannsinitnieninnnninel 271 Civil Action No. 02-1389-A

Ex. 3 (Deposition of John LeBeau dated Mar.

Oh 273 JUANITA ROCHE,

, Plaintiff,

Ex. 4 (Declaration of Jeff Franzen dated Apr. .

es Se I ccrenrsnssessesnscnnnanndecaditnasiipannmeneniies 275 ;

Correction and Shephardization to Plaintiffs’ LINCOLN PROPERTY CO., ET AL.,

Reply Filed May 9, 2003, in Reference to Defendants.

“Ristow v. South Carolina Ports Authority’,

27 F.3d 84 (4™ Cir. 1994), Christophe Roche,

et al. v. Lincoln Property Co., et al., Civil Ac- DOCKET PROCEEDINGS

tion No. 02-1390-A (E.D. Va. filed May 11,

2003):

Attachments (excerpt): DATE # DOCKET ENTRY

Biographies of Lincoln Property Company 9/17/02 1 NOTICE OF REMOVAL from Circuit

“Corporate Leaders” (from website dated Court of Fairfax County by Lincoln Prop-

May 12, 2003) (excerpt)...........c:cccsecsesseeseessesseesees 276 erty, Invesco, SWIB Investment; FILING

ee i FEE $150.00 RECEIPT # 100158024;

Plaintiffs Supplemental Brief in Support of jury demand by pltf; No Answer Filed

Their Previously Filed Motion for Remand (pwhi) [Entry date 09/18/02]

Pursuant to 28 USC §1447(c), Christophe '

Roche, et al. v. Lincoln Property Co., et al., tele thedias

Civil Action No. 02-1390-A (E.D. Va. filed 10/3/02 9 Consent Order that this action is hereby

June 13, 2003) (Cxcerpt)..........cseccersssressreseresseesseeees 284 consolidated into CA 02-1390-A. - ent. &

filed. (signed by Judge Leonard D. Wex-

ler) Copies Mailed: yes (wpin) [Entry date

10/10/02}

40/3/02» ~—« Consolidated Member Case. Lead Case

Number: 02 CV 1390 (wpin) [Entry date

10/10/02}

—

10/8/0210

10/8/02 11

10/21/02 13

10/21/02

MOTION by SWIB Investment, Invesco,

Lincoln Property to Dismiss (wpin)

[Entry date 10/10/02]

MEMORANDUM by Lincoln Property,

Invesco, SWIB Investment in support of

[10-1] motion by SWIB Investment, In-

vesco, Lincoln Property to Dismiss by

SWIB Investment, Invesco, wincoln Prop-

erty (Large Pleading) (wpin) [Entry date

10/10/02] [Edit date 10/10/02]

ee ee

Consent Order; ORDERED that Juanita

Roche v. Lincoln Property Co., et. al. No.

02-1389-A is hereby closed (See order for

details) (signed by Judge Gerald B. Lee)

Copies Mailed: yes (pwhi) [Entry date

10/22/02]

Case closed (pwhi) [Entry date 10/22/02}

se ee

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action No. 02-1390-A

CHRISTOPHE ROCHE, ET AL.,

Plaintiffs,

Vv.

LINCOLN PROPERTY CO., ET AL.,

Defendants.

DOCKET PROCEEDINGS

DOCKET ENTRY

NOTICE OF REMOVAL from Circuit

Court of Fairfax County by Lincoln Prop-

erty Co., Invesco, Swib Investment Co;

FILING FEE $150.00 RECEIPT #

100158023; jury demand (wpin) [Entry

date 09/18/02]

ese 2 ef

Consent Order that the action captioned

Juanita Roche v Lincoln Property Co, et

al, No. 02-1389-A 1s hereby consolidated

in to the above action. — ent. & filed.

(signed by Judge Leonard D. Wexler)

Copies Mailed: yes (wpin) [Entry date

10/04/02]

Consolidated Lead Case (wpin) [Entry

date 10/10/02]

DATE #

9/17/02 1

10/3/0211

10/3/02

10/8/02

10/22/02

10/25/02

11/7/02

MOTION by Swib Investment Co, In-

vesco, Lincoln Property Co. to Dismiss

(wpin) [Entry date 10/09/02]

MEMORANDUM by Lincoln Property

Co., Invesco, Swib Investment Co in sup-

port of [13-1] motion by Swib Investment

Co, Invesco, Lincoln Property Co. to Dis-

miss (Large Pleading) (wpin) [Entry date

10/09/02] [Edit date 10/10/02]

sexe eee

CASE reassigned to Judge Gerald B. Lee

(per direction of CMH chambers) (pmil)

se ee

MEMORANDUM by Christophe Roche,

Juanita Roche in opposition to [13-1] mo-

tion by Swib Investment Co, Invesco,

Lincoln Property Co. to Dismiss (wpin)

[Entry date 10/28/02]

MOTION by Juanita Roche, Christophe

Roche for Leave to File amended com-

plaint (wpin) [Entry date 10/28/02]

MEMORANDUM by Christophe Roche,

Juanita Roche in support of [20-1] motion

by Juanita Roche, Christophe Roche for

Leave to File amended complaint by Jua-

nita Roche, Christophe Roche (wpin)

[Entry date 10/28/02]

MEMORANDUM by Lincoln Property

Co., Invesco, Swib Investment Co in op-

position to [20-1] motion by Juanita

Roche, Christophe Roche for Leave to File

amended complaint by Juanita Roche,

Christophe Roche (wpin) [Entry date

11/12/02]

11/13/02 26

11/15/02

11/27/02 27

12/16/02 28

REPLY by Lincoln Property Co., Invesco

to response to [13-1] motion by Swib In-

vestment Co, Invesco, Lincoln Property

Co. to Dismiss (clar) [Entry date

11/14/02)

Minute entry: (GBL) r: Wilson. Appear-

ances: Counsel. Onfor hearing on deft

motion to dismiss -— argued and granted

as to the original complaint w/leave to

amend. However, the proposed Amended

Complaint submitted w/Motion to Amend

is not accepted and pltf may file a Second

Amended Complaint w/i 20 days — deft

response due w/i 20 days thereafter.

Order to follow. (jsol)

MEMORANDUM ORDER for reasons

stated, [20-1] motion by Juanita Roche,

Christophe Roche for Leave to File

amended complaint is granted w/i 20

days of this Order. The Court declines to

accept the proffered Amended Complaint

as pitf did not have benefit of this ruling.

Deft haf 20 days thereafter to respond.

[13-1] motion by Swib Investment Co,

Invesco, Lincoln Property Co. to Dismiss

is granted as to the original complaint

and Further Ordered that INVESCO In-

stitutional is dismissed from this action.

(signed by Judge Gerald B. Lee) Copies

Mailed: y [EOD Date: 12/3/02] (jsol)

{Entry date 12/03/02]

SECOND AMENDED COMPLAINT by

Christophe Roche, Juanita Roche amend-

ing [28-1] amended complaint by Juanita

Roche, Christoph= Roche; jury demand

(wpin) [Entry de 12/17/02] [Edit date

12/17/02]

1/6/03

1/30/03

2/4/03

2/5/03

zseeee

ANSWER by Swib Investment Co (Attor-

ney Michael Robert Goodstein) to second

amended complaint (lkin) [Entry date

01/07/03}

ese nenee

ANSWER by Lincoln Property Co. to sec-

ond amended complaint (wpin) [Entry

date 01/07/03}

ese eee

MOTION by Swib Investment Co, Lincoln

Property Co. to exclude testimony of

Richard Bernstein, M.D. (clar) [Entry

date 02/03/03}

MEMORANDUM by Lincoln Property

Co., Swib Investment Co in support of

[37-1] motion by Swib Investment Co,

Lincoln Property Co. to exclude testimony

of Richard Bernstein, M.D. (clar) [Entry

date 02/03/03]

Supplemental Brief by Lincoln Property

Co., Swib Investment Co in support of

[37-1] motion by Swib Investment Co,

Lincoln Property Co. to exclude testimony

of Richard Bernstein, M.D. (clar)

MEMORANDUM by Christophe Roche,

Juanita Roche in opposition to [37-1] mo-

tion by Swib Investment Co, Lincoln

Property Co. to exclude testimony of

Richard Bernstein, M.D. (clar) [Entry

date 02/06/03]

2/6/03

2/7/03

Response to rebuttal by Christophe

Roche, Juanita Roche to [37-1] motion by

Swib Investment Co, Lincoln Property

Co. to exclude testimony of Richard Bern-

stein, M.D. (clar)

Rebuttal brief in support by Lincoln

Property Co., Swib Investment Co of [37-

1] motion by Swib Investment Co, Lin-

coln Property Co. to exclude testimony of

Richard Bernstein, M.D. (clar)

Minute entry: Judge Sewell. Reporter:

Rudgier & Green. Appearances of counsel

for pltf and dft. Matter came on as dft’s

motion to compel discovery, dft’s motion

for sanctions and dft’s motion to exclude

Richard Bernstein, MD testimony. Mat-

ter is argued and dft’s motion to compel

discovery is granted, Dft’s motion for

sanctions is denied and dft’s motion to

exclude testimony of Richard Bernstein,

MD is denied. Order to follow (kjon)

ORDER for the reasons stated from the

bench [34-1] motion by Swib Investment

Co, Lincoln Property Co. to overrule as-

sertions of Fifth Amendment privilege

and to further depose pitfs is GRANTED;

Dft’s motion for production of documents

is GRANTED; [37-1] motion by Swib In-

vestment Co, Lincoln Property Co. to ex-

clude testimony of Richara Bernstein,

M.D. is DENIED; [34-2] motion by Swib

Investment Co, Lincoln Property Co. for

Rule 37(a) Sanctions is DENIED (signed

by Magistrate Judge Welton C. Sewell)

Copies Mailed: Yes [EOD Date: 2/10/03]

(kjon) [Entry date 02/10/03]

2/7/03

2/12/03

2/14/03

MOTION by Juanita Roche, Christophe

Roche to Amend [28-1] amended com-

plaint by Juanita Roche, Christophe

Roche (wpin) [Entry date 02/10/03}

MEMORANDUM by Christophe Roche,

Juanita Roche in support of [52-1] mo-

tion by Juanita Roche, Christophe Roche

to Amend [28-1] amended complaint by

Juanita Roche, Christophe Roche by Jua-

nita Roche, Christophe Roche (wpin) [En-

try date 02/10/03}

“ete ee

MOTION by Juanita Roche, Christophe

Roche to Voluntary Dismiss Count II pur-

suant to Rule 41(a)(2) (wpin) [Entry date

02/13/03)

see ee

MEMORANDUM by Swib Investment Co

in opposition to [52-1] motion by Juanita

Roche, Christophe Roche to Amend [28-1]

amended complaint (pwhi)

ese eae

JOINT RESPONSE by Lincoln Property

Co., Swib Investment Co in opposition to

[59-1] motion by Juanita Roche, Chris-

tophe Roche to Voluntary Dismiss Count

II] pursuant to Rule 41(a)(2) (stas) [Entry

date 02/19/03}

TRANSCRIPT for the date of 11.15.03

before GBL (motions) (agil) [Entry date

02/19/03]

MEMORANDUM by Lincoln Property

Co., Swib Investment Co in opposition to

[52-1] motion by Juanita Roche, Chris-

2/19/03

2/21/03

tophe Roche to Amend [28-1] amended

complaint (clar) [Entry date 02/19/03]

REPLY by Christophe Roche to response

to [52-1] motion by Juanita Roche, Chris-

topher Roche to Amend [28-1] amended

complaint concerning punitive damages

(large pleading) (clar)

TIER

crf

4 Pe

lif

3/1003 = 91

3/13/03 95

3/1303 96

3/13/03

rulings thereto, it is hereby ordered -

ORDER denying [52-1] motion by Juanita

Roche, Christophe Roche to Amend [28-1]

amended complaint by Juanita Roche,

Christophe Roche (signed by Magistrate

Judge Liam O'Grady) Copies Mailed: y

[EOD Date: 2/26/03] (ntho) [Entry date

02/26/03}

ese ee

ORDER for reasons stated in open court

on 2/21/03, [59-1] motion by Juanita

Roche, Christophe Roche to Voluntary

Dismiss Count II pursuant to Rule

41(a)(2) is granted and Further Ordered

that, should pitfs re-file a claim similar to

Coutn [sic] Il, they shall! bear atty fees for

all parties as to that count. (signed by

Judge Gerald B. Lee) Copies Mailed: y

[EOD Date: 3/13/03] (jsol) [Entry date

03/13/03]

MOTION by Juanita Roche, Christophe

Roche for Summary Judgment (Hearing

set for 4/4/03) (pwhi) [Entry date

03/17/03}

MOTION by Swib Investment Co, Lincoln

Property Co. to Bar Testimony by Rich-

ard Bernstein, M.D. and by Swib Invest-

mary Judgment on All Claims for Per-

sonal Injury (pwhi) (Entry date 03/17/03]

MEMORANDUM of Law by Lincoln

Property Co., Swib Investment Co in

support of [96-1] motion by Swib Invest-

ment Co, Lincoln Property Co. to Bar

Testimony by Richard Bernstein, M.D.

3/13/03

3/24/03

3/27/03

100

110

lll

112

116

and [96-2] motion by Swib Investment

Judgment on All Claims for Personal In-

jury (Large Pleading) (pwhi) [Entry date

03/17/03]

ese ee

MOTION by Lincoln Property Co. for

Summary Judgment (pwhi) [Entry date

03/17/03]

MEMORANDUM of Law by Lincoln

Property Co. in support of [99-1] motion

by Lincoln Properiy Co. for Summary

Judgment (Large Pleading) (pwhi) [Entry

date 03/17/03]

RESPONSE by Lincoln Property Co.,

Swib Investment Co in opposition to [95-

1] motion by Juanita Roche, Christophe

Roche for Summary Judgment (clar)

3/27/03

3/28/03

4/4/03

4/16/03

117

118

128

139

Juanita Roche, Christophe Roche for

Judgment (large pleading) (clar) [Entry

date 03/28/03]

Errata sheet correcting typographical and

possibley [sic] illegible materials con-

tained in the exibitis filed by plaintiff

Christophe Roche, plaintiff Juanita

Roche in Re: [111-1] opposition to motion

for summary judgment (clar) [Entry date

03/28/03}

REPLY MEMORANDUM in support by

Lincoln Property Co., Swib Investment

Co of [96-2] motion by Swib Investment

Co, Lincoln Property Co. for Summary

Judgment on All Claims for Personal In-

jury (large pleading) (clar)

REPLY brief in support by Lincoln Prop-

erty Co., Swib Investment Co of [96-1]

motion by Swib Investment Co, Lincoln

Property Co. to Bar Testimony by Rich-

ard Bernstein, M.D. (large pleading)

(clar)

MOTION by Swib Investment Co, Lincoln

Property Co. for Leave to File a Surreply

to pitfs rebuttal to defts’ opposition to

pitfs motion for summary judgment

(mcke)

Minute entry: (GBL) r: Wilson. Appear-

ances: Counsel. On for hearing on mo-

tions for SJ — all argued and under ad-

visement. (jsol) [Entry date 04/08/03]

ORDER for reasons to be stated in the

forthcoming Memo Order, [96-1] motion

140

142

143

144

by Swib Investment Co, Lincoln Property

Co. to Bar Testimony by Richard Bern-

stein, M.D. is granted. [96-2] motion by

Swib Investment Co, Lincoln Property

Co. for Summary Judgment on All

Claims for Personal Injury, [99-1] motion

by Lincoln Property Co. for Summary

Judgment is granted and [95-1] motion

by Juanita Roche, Christophe Roche for

Summary Judgment is denied. This case

is removed from the trial docket and the

statute of limitations for appeal is tolled

until the Court enteres [sic] its forthcom-

ing Memo Order and Judgment. This Or-

der does not constitute a “judgment”.

(signed by Judge Gerald B. Lee) Copies

Mailed: y [EOD Date: 4/22/03] (sol)

{Entry date 04/22/03]

MOTION by Juanita Roche, Christophe

Roche to Remand pursuant to 28 USC

1447(c) (clar) [Entry date 04/23/03]

MEMORANDUM by Christophe Roche,

Juanita Roche in support of [140-1 mo-

tion by Juanita Roche, Christophe Roche

to Remand pursuant to 28 USC 1447(c)

(large pleading) (clar) [Entry date

04/23/03}

RESPONSE by Lincoln Property Co.,

Swib Investment Co in opposition to [140-

1] motion by Juanita Roche, Christophe

Roche to Remand pursuant to 28 USC

1447(c) (clar)

Addendum filed by plaintiff Christophe

a to [140-1] motion by Juanita

Roche, Christophe Roche to Remand pur-

suant to 28 USC 1447(c) (clar)

5/2/03

5/5/03

5/6/03

5/8/03

5/9/03

145

146

147

148

149

151

155

se eee

BRIEF by Swib Investment Co in opposi-

tion to [140-1] motion by Juanita Roche,

Christophe Roche to Remand pursuant to

28 USC 1447(c) (mcke)

MOTION by Juanita Roche, Christophe

Roche for rule 60(b) relief from an order

or judginent that is void (told to notice)

(mcke) (Entry date 05/05/03]

SUPPLEMENTAL brief by Swib Invest-

ment Co in opposition to [140-1] motion

by Juanita Roche, Christophe Roche to

Remand pursuant to 28 USC 1447(c)

(mcke)

Reply by Christophe Roche, Lincoln

Property Co. to [147-1] supplemental

brief opposing remand by Swib Invest-

ment Co (mcke) [Entry date 05/07/03]

OPPOSITION by Lincoln Property Co. to

[146-1] motion by Juanita Roche, Chris-

tophe Roche for rule 60(b) relief from an

order or judgment that is void (mcke)

REPLY by Christophe Roche, Juanita

Roche to response to [146-1] motion by

Juanita Roche, Christophe Roche for rule

60(b) relief from an order or judgment

that is void (large pleading) (clar) [Entry

date 05/12/03}

MOTION by Swib Investment Cofor

Leave to File supplement brief (kjon)

SUPPLEMENTAL BRIEF by Swib In-

vestment Co opposing [146-1] motion by

6/13/03

6/24/03

7/25/03

156

157

161

162

163

164

Juanita Roche, Christophe Roche for rule

60(b) relief from an order or judgment

that is void (kjon) [Entry date 05/27/03]

MOTION by Lincoln Property Co., Chris-

tophe Roche for Leave to File supplemen-

tal brief (mcke) [Entry date 06/16/03]

OPPOSITION by Lincoln Property Co.,

Swib Investment Co to plitfs “supplemen-

tal” motion to remand (there was no sup-

plemental motion to remand filed) (mcke)

[Entry date 06/25/03}

sea

MEMORANDUM OPINION (signed by

Judge Gerald B. Lee) Copies Mailed: y

(agil) [Entry date 07/28/03}

ORDER, for the reasons stated in the

the Testimony of Richard Bernstein,

M.D., are GRANTED. (signed by Judge

Gerald B. Lee) Copies Mailed: y [EOD

Date: 7/28/03] (agil) [Entry date 07/28/03]

7/25/03

8/4/03

8/11/03

8/18/03

165

166

170

171

Juanita Roche (signed by Judge Gerald

B. Lee) Copies Mailed: y [EOD DATE:

7/28/03) (agil) [Entry date 07/28/03]

JUDGMENT for Lincoln Property Co.,

Swib Investment Co against Christophe

Roche, Juanita Roche (entered by the

clerk pursuant to the Courts order dated

7/25/03) Copies Mailed: 7/30/03 [EOD

DATE: 7/30/03] (agil) [Entry date

07/30/03}

Case closed (agil) [Entry date 07/30/03]

MOTION by Juanita Roche, Christophe

Roche for Reconsideration of [163-1] or-

der granting motion for summary judg-

ment, by Juanita Roche, Christophe

Roche for New Trial (will notice) (mcke)

[Entry date 08/05/03]

xe eee

MEMORANDUM ORDER that pitfs

motoin [sic] to remand pursuant to 28

U.S.C. 1447(c) is DENIED. It is further

ORDERED that pltfs motion for rule

60(b) relief from an order of judgment

that is Void is DENIED. (signed by Judge

Gerald B. Lee) Copies Mailed: yes [EOD

Date: 8/12/03) (mcke) [Entry date

08/12/03]

x“*e eee

RESPONSE by Lincoln Property Co.,

Swib Investment Co in opposition to [166-

1] motion by Juanita Roche, Christophe

Roche for Reconsideration of [163-1] or-

der granting motion for summary judg-

ment and granting new trial (stas)

8/20/03

8/21/03

8/27/03

9/3/03

175 MOTION by Juanita Roche, Christophe

178

179

180

Roche for Reconsideration of [170-1] the

court’s memorandum order of August 11,

2203 [sic] of pltfs’ post-judgment motions

(clar) [Entry date 08/21/03]

exe eee

NOTICE OF APPEAL OF [164-1] judg-

ment order dated 7/25/03, [165-1] judg-

ment order dated 7/25/03 by Christophe

Roche, Juanita Roche. FILING FEE

$105.00 RECEIPT # 165944. Copy of no-

tice, judgments, memoradnum [sic] order,

docket sheet & transmittal sheet sent to

USCA. Copies sent to Christophe Roche,

Lincoln Property Co., Swib Investment

Co, Juanita Roche (mcke) [Entry date

08/26/03]

seek

RESPONSE by Lincoln Property Co.,

Swib Investment Co in opposition to [175-

1] motion by Juanita Roche, Christophe

Roche for Reconsideration of [170-1] the

court's memorandum order of August 11,

2203 [sic] of pltfs’ post-judgment motions

Qcup)

ese eae

ORDER denying [166-1] motion by Jua-

nita Roche, Christophe Roche for Recon-

sideration of [163-1] order granting mo-

tion for summary judgment, denying

[175-1] motion by Juanita Roche, Chris-

tophe Roche for Reconsideration of [170-

1] the court's memorandum order of Au-

gust 11, 2203 [sic] of pltfs’ post-judgment

motions (signed by Judge Gerald B. Lee)

9/10/03

10/17/03

7/1/04

7/28/04

8/5/04

183

184

185

186

Copies Mailed: yes [EOD Date: 9/5/03]

(mcke) [Entry date 09/05/03]

USCA Case Number Re: [178-1] appeal

by plaintiffs CASE MANAGER: Mike

Radday USCA NUMBER: 03-2064 (mcke)

[Entry date 09/11/03}

Certification of completion sent to USCA

re: [178-1] appeal by Juanita Roche,

Christophe Roche (mcke)

x“*xneneek

Copy of Opinion of USCA re: [178-1] ap-

peal by Juanita Roche, Christophe Roche

Decided 06-30-2004 Reversed in part, va-

cated in part, and remanded for further

proceedings as to the District Court deci-

sion; attached copy of judgment will not

take effect until issuance of the mandate.

(pmet) [Entry date 07/02/04] [Edit date

07/07/04}

USCA Order as to defendant Lincoln

Property Co that the petition for rehear-

ing and rehearing en banc is denied

(kjon) [Entry date 07/29/04]

MOTION by Lincoln Property Co. for re-

lief from mandate, and, in the alterna-

tive, by Lincoln Property Co. to present

new evidence (stas) [Entry date 08/06/04]

MEMORANDUM by Lincoln Property Co.

in support of [185-1] motion by Lincoln

Property Co. for relief from mandate and,

in the alternative, [185-2] motion by Lin-

coln Property Co. to present new evidence

(LARGE PLEADING) (stas) [Entry date

08/06/04]

ese ree

Se ae

8/11/04

8/16/04

8/17/04

8/19/04

8/20/04

189

191

192

193

194

MEMORANDUM by Christophe Roche,

Juanita Roche in opposition to [185-1]

motion by Lincoln Property Co. for relief

from mandate, [185-2] motion by Lincoln

Property Co. to present new evidence

(large pleading) (jcup) [Edit date

08/11/04]

se eee

Copy of Opinion of USCA re: [178-1] ap-

peal by Juanita Roche, Christophe Roche

Decided 06-30-2004 Reverses in part and

Vacates in part the District Court deci-

sion. This case is remanded to the Dis-

trict Court for further proceedings consis-

tent with the Court’s opinion; attached

copy of judgment will not take effect until

issuance of the mandate. (pmet)

REPLY MEMORANDUM in support by

Lincoln Property Co. of [185-1] motion by

Lincoln Property Co. for relief from man-

date, [185-2] motion by Lincoln Property

Co. to present new evidence (clar)

MOTION by Juanita Roche, Christophe

Roche for Leave to File Surrebuttle

Memo (to defts’ Reply in Support to Mo-

tion for Relief from Mandate) (jsol)

Minute entry: (GBL) r: Wilson. Ap-

pearamces [sic]: Counsel. On for hearing

on deft motion for relief from mandate/

present new evidence — argued and case

is remanded back to Fx Co Circuit Court.

Order to follow. (jsol)

ORDER for reasons stated in open court

on 8/20/04, [185-1] motion for relief from

mandate, and [185-2] motion by Lincoln

Property Co. to present new evidence is

12/9/04

3/7/05

208

denied. (signed by Judge Gerald B. Lee)

Copies Mailed: y [EOD Date: 8/25/04]

(jsol) [Entry date 08/25/04]

ee eet

USCA Letter: We have received notice

from the Supreme Court that a petition

for writ of certiorari has been filed in this

case (kjon)

x*exe eee

Letter to court from USCA re: a supreme

court order was filed on 2/28/05 granting

certiorari. (this letter goes with the notice

of appeal that was filed on 8/21/03, USCA

# 03-2064) (mcke) [Entry date 03/08/05]

x*e eee

DATE

9/5/03

9/9/03

11/19/03

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-2064

CHRISTOPHER ROCHE; JUANITA ROCHE,

Plaintiffs-Appellants,

Vv.

LINCOLN PROPERTY COMPANY;

SWIB INVESTMENT COMPANY,

Defendants-Appellees,

AND

INVESCO INSTITUTIONAL,

Defendant.

DOCKET PROCEEDINGS

DOCKET ENTRY

Docketing statement filed by Appellant

Christopher Roche, Appellant Juanita

Roche [3859052-1]. T/S needed [Y/N]: n.

T/S already on file?: n/a. [03-2064] ~

[3859052] (mr)

Civil case docketed. (mr)

Docketing notice issued. [03-2064] ~

[3851210] (mr)

ee eee

Brief and joint appendix filed by Appel-

lant Christopher Roche, Appellant Jua-

nita Roche. Copies of brief: 8. # brf pages:

56. Sufficient{[Y/N]?: y. SEALED vol.

[Y/N]?: n. Copies of apx: 6 copies each of

vols. 1-5. # apx pages: 1064. 2-sided copy-

ing[Y/N]?: y. Method of filing w/ >urt:

HD. Date of Service on parties: 11/19/03.

12/22/03

12/23/03

1/8/04

1/27/04

Type of service on parties: PM. Appellee

brief due 12/22/03 for Swib Investment

Co, for Lincoln Property Co. [03-2064] ~

[3889637] (mr)

Brief filed by Appellee Lincoln Property

Co, Appellee Swib Investment Co. Copies

of brief: 8. # brf pages: 69. Sufficient

[Y/N]?: y. SEALED?[Y/N]: n. Method of

filing w/ court: HD. Date of Service on

parties: 12/22/03. Type of service on par-

ties: PM. [03-2064] ~ [3906543] (mr)

xeeeee

Supplemental joint appendix filed by Ap-

pellee Lincoln Property Co, Appellee

Swib Investment Co. per 12/23/03 order.

Copies of apx: 5 copies each of sup jt.apx

vols. 1, 2. # apx pages: 623. Sufficient?

[Y/N]: y. SEALED vol.[Y/N]?: n. [03-2064]

~ [3906568] (mr)

Reply brief filed by Appellant Christo-

pher Roche, Appellant Juanita Roche.

Copies of brief: 8. # brf pages: 35.

Sufficient [Y/N]?: y. SEALED[Y/N]?: n.

Method of filing w/ court: HD. Date of

Service on parties: 1/8/04. Type of service

on parties: PM. [03-2064] ~ [3913751]

(mr)

Motion with memorandum in support of

the motion filed by Appellee Lincoln

Property Co, Appellee Swib Investment

Co to strike reply brief brief [3922630-1].

[03-2064] ~ [3922630] (dad)

Response/answer requested to motion to

strike brief [3922630-1] Response/answer

due 2/9/04 for Juanita Roche, for Chris-

topher Roche. [03-2064] ~ [3922761] (ta)

2/10/04

2/11/04

2/12/04

5/5/04

6/30/04

Response/answer filed [3931401-1] by

Appellant Christopher Roche, Appellant

Juanita Roche to motion to strike brief

[3922630- 1]. [03-2064] ~ [3931401] (mr)

ORDER FILED [3931908] deferring ac-

tion on motion to strike brief pending as-

signment of this case to a panel for re-

view along with the merits of this case

[3922630-1]. Copies to al! parties. [03-

2064] ~ [3931908] (mr)

Response/answer filed by Appellant

Christopher Roche, Appellant Juanita

Roche amending response/answer

{393 1401-1] [3932803- 1]. [03-2064] (mr)

Reply filed by Appellee Lincoln Property

Co, Appellee Swib Investment Co to re-

sponse/answer [3931401-1]. [3938003-1]

03-2064] ~ [3938003] (mr)

se e228

Oral argument heard. Panel: Honorable

H. E. Widener, Honorable Roger L. Greg-

ory, Honorable C. A. Beam. Courtroom

Deputy: SCC. [03-2064] (carr)

Published, authored opinion filed. Copies

to all parties. [03-2064] (mr)

Informal! action taken mooting motion to

strike brief [3922630-1]. [03-2064] ~

[4008963] (mr)

Judgment order filed. Decision: reversed

in part, vacated in part. and remanded.

EOD Date: 6/30/04. [03-2064] ~ [4008965]

(mr)

7/14/04

7/27/04

8/4/04

8/12/04

12/7/04

3/4/05

Petition filed by Appellee Swib Invest-

ment Co, Appellee Lincoln Property Co

for rehearing [4016031-1], for rehearing

en banc. Number of copies filed: original

+ 19 [4016031-2]. [03-2064] ~ [4016031]

(mr)

COURT ORDER filed [4023030] denying

motion for rehearing [4016031-1], deny-

ing motion for rehearing en banc

[4016031-2]. EOD Date: 7/27/04. Copies

to all parties. ~ [4023030] [03-2064] (mr)

Motion filed by Appellee Swib Investment

Co, Appellee Lincoln Property Co to stay

the mandate [4026195-1]. [03-2064] ~

[4026 195] (mr)

COURT ORDER filed [4028607] denying

motion to stay mandate [4026195-1]. Cop-

ies to all parties. ~ [4028607] [03-2064]

(mr)

Mandate issued. ~ [4032849] [03-2064]

(dad)

Supreme Court notice that petition for

certiorari was filed on 11/24/04. Spct No.:

04-712 Spct Pty 1: Lincoln Property Co.,

et al Spct Pty 2: Christopher Roche, et al.

[03-2064] ~ [4098100] (mst)

petition certiorari [4098100-1] on

02/28/05. [03-2064] ~ [4145957] (dhb)

[seal omitted] COMMONWEALTH OF VIRGINIA [seal omitted]

Circuit Court of Fairfax County

4110 Chain Bridge Road

Fairfax. Virgima 22030

703-246-4358

To: LINCOLN PROPERTY CO

T/A LINCOLN Prop Co ECW INC

SERVE R/A CMWTH LEGAL Svc CORP

4701 Cox RD SUITE 301

GLEN ALLEN, VA

NOTICE OF MOTION FOR JUDGMENT

You are hereby notified that unless within twenty-one

(21) days after service of this Notice of Motion for Judg-

ment on you, response is made by filing in the Clerk's Of-

fice of this court a pleading in writing, in proper legal

form, judgment may be entered against you by default,

Done in the name of the Commonwealth of Virginia, this

26th day of Aug 2002.

Law No. L206874

John T. Frey, Clerk

By: /s/ JANET L. [illegible]

Deputy Clerk

PHILLIPS, JERRY M. P.Q.

VIRGINIA:

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

CHRISTOPHE ROCHE,

Plaintiff

v. LAW No 206874

LINCOLN PROPERTY COMPANY

T/A LINCOLN PROPERTY COMPANY ECW, INC..,

Agent

3500 Lincoln Plaza

500 North Akard Street, Suite 3300

Dallas, Texas 72501,

Defendant

Serve: Registered Agent

Commonwealth Legal Services Corporation

4701 Cox Road, Suite 301

Glen Allen, Virginia 23060

and

INVESCO INSTITUTIONAL (N/A, INC.)

INSTITUTIONAL DIVISION OF AMVESCAP

A/K/A INVESCO REALTY ADVISORS,

Defendant

Serve: Registered Agent

Commonwealth Legal Services Corporation

4701 Cox Road, Suite 301

Glen Allen, Virginia 23060

and

SWIB INVESTMENT COMPANY

STATE OF WISCONSIN INVESTMENT BOARD

LINCOLN PROPERTY COMPANY

1155 Herndon Parkway

Herndon, Virginia

Defendant

Serve: Registered Agent

Commonwealth Legal Services Corporation

4701 Cox Road, Suite 301

Glen Allen, Virginia 23060

MOTION FOR JUDGMENT

COMES NOW, the Plaintiff, Christophe Roche, by

counsel, and respectfully motions the Court for Judgment

against the defendants, for the following reasons

1. Plaintiff, Christophe Roche, is a citizen of Fairfax

County, Virginia, residing at 13620 Bent Tree Circle, Unit

302, Centreville, Virginia 20120.

2. This Court has jurisdiction of this matter as all of

the causes of actions and injuries occurred in Fairfax

County, Virginia.

3. Upon information and belief, Lincoln Property

Company is a corporation with corporate headquarters

located at 500 North Akard Street, Suite 3300, Dallas,

Texas. It is a developer and manager of residential com-

munities, including the property located in Fairfax

County, Virginia, known as Westfield Village. [Hence-

forth, Lincoln Property Company will be referred to as

(“Lincoln”)}.

4. Upon information and belief, Lincoln is one of the

largest and most diversified real estate firms in the

United States, employing over 4,000 people. It has an es-

tablished presence in over 100 markets in 19 states and

manages over 120 million square feet of commercial prop-

erty nationwide, valued at over 6.4 billion dollars.

5. Lincoln trades under various and sundry names

throughout the United States, including the property

which is the subject of this lawsuit which is known as

5111 Woodmere Drive, Westfield Village Apartments,

Unit #104, Centreville, Fairfax County, Virginia 20120.

This property is managed and was at all relevant times

managed by the Lincoln Property Company through its

regional offices located at 1155 Herndon Parkway, Suite

100, Herndon, Virginia.

6. Defendant, INVESCO, an institutional division

of AMVESCAP, is an investment management group.

Upon information and belief, INVESCO, for all relevant

purposes arid times related to this complaint, traded by

and through “INVESCO Realty Advisors.”

7. INVESCO Realty Advisors, through its wholly

owned and/or sponsored investment affiliate and/or sub-

sidiary, SWIB Investment Company, was the owner of

5111 Woodmere Drive, Centreville, Virginia. [Defendant,

SWIB Investment Company will hereafter be referred to

as (SWIB")}.

8. Upon information and belief, defendant/owner as

described above, SWIB, by and through defendants

INVESCO and Lincoln, may have sold or transferred title

or assigned the ownership of Westfield Village Apart-

ments which includes 5111 Woodmere Drive, Centreville,

Virginia 20120. Upon further discovery in this case, and

depending upon whether liability for claims during the

relevant periods herein have been transferred and ac-

cepted by a new owner pursuant to a recent sale in 2002,

will determine if additional defendant or defendants will

be named.

9. Upon information and belief, defendant/owner, as

described above, SWIB, by and through defendants IN-

VESCO and Lincoln, may have sold or transferred title or

assigned the ownership of Westfield Village Apartments

which includes 5111 Woodmere Drive, Centreville, Vir-

ginia 20120. Upon further discovery in this case, and de-

pending upon whether liability for claims during the rele-

vant periods here:n have been transferred and accepted

by a new owner pursuant to a recent sale, will determine

if additional defendant or defendants will be named.

10. Plaintiff, Christophe Roche, [hereinafter referred

to as (“Roche”)], and Juanita Castillo (Roche), signed a

Lease with the owner, believed to be “SWIB” or “IN-

VESCO” and Lincoln Property for 5111 Woodmere Drive,

Apartment Unit #104, Centreville, Virginia 20120 (here-

inafter this location will be referred to as “the Roche

apartment”), which Lease is in the possession of the De-

fendant Lincoln. [Roche has made request for copies of

this Lease from the landlord. His only copy of this Lease

was taken and/or lost by the landlord during a forced

“move out” described below. As of the date of filing, the

lease has not been provided, even though it has been re-

quested in >erson and in writing.]

11. The above-described Lease sets forth the terms

and obligations of the parties to the Roche apartment.

12. All the defendants are engaged in the real estate

investment and/or property management business and

trade under the various names listed above.

13. The defendants, at the time of the occurrence in

question, and upon information and belief, currently own

and operate Westfield Village Apartments located in Fair-

fax County, Virginia, as described above.

14. Roche and his family leased an apartment in the

complex (Unit 104) from the defendants, as described

above, under the terms of the Lease.

15. Roche was a resident/tenant at Westfield Village

during all relevant times and for many months before he

started a six-week employment with Lincoln Property,

and gave numerous notifications of the problems that are

described below.

16. Lincoln breached the Lease by ignoring the notifi-

cations of moisture damage which resulted in the forma-

tion of toxic mold that adversely affected the personal

property and health of the Roche family.

17. For months, the Roche family advised Lincoln of

water leaks that needed repairing. Holes had been cut in

the walls of his apartment by the landlord that needed to

be repaired, along with carpet that had been torn up, and

the fact that mold was all over his apartment was brought

to Lincoln's attention.

18. Numerous requests were made for rectifying this

problem, and most of the notices were personally given by

Roche. In addition to written letters, all of the warnings

of the mold problems were disregarded.

19. Lincoln held itself out through its advertisements

and inducement to prospective residents that they

“provide exemplary service in a quality home environ-

ment,” and which inducement was the primary and mate-

rial reason why Roche entered into the Lease. Lincoln

had advertised that they provided 24 hour technical

maintenance service, and had in effect a same-day service

request policy.

20. Due to the failures and breach of its duties, as de-

scribed below, Roche and his family, including his six

year-old son, have been personally injured, as further de-

scribed below.

21. The plaintiff has suffered injuries in connection

with the exposure to the toxic mold and has been treated

by physicians for these injuries, all caused by the breach

of duties owed by Lincoln.

22. All the defendants, acting either through Lincoln

and/or their obligations as owners of the property through

the Lease, and acting by and through their agents, were

responsible for one or more acts of common law and/or

statutory negligent conduct, with respect to Roche's

apartment, including but limited, as follows:

a. In failing to provide and equip the apartment

with replacement piping for the polybutylene piping that

had been recalled five years ago by the pipe producers and

subject of many settlements due to recall lawsuits.

b. In failing to inspect the apartment to determine

if it was subject to water damage, mold damage, excessive

moisture, etc.

c. In failing to provide Roche's family with a safe

place to live;

d. In failing to adequately inspect the apartment

for defects in the heating and air conditioning units and

in the substrate duct material as well as condensation

drain lines and filtration systems employed by the HVAC.

e. In providing, operating and maintaining the

apartment in question with unsafe conditions, namely;

recalled polybutylene water piping throughout the entire

building. Through research, the pipes were known to

rupture and cause massive water damage. As a result,

older appliances such as washers, dryers, refrigerators,

and dish washers were rusted out and leaking, leading to

failure. Roche’s washing machine water pump malfunc-

tioned and flooded the apartment.

f. In providing, operating and maintaining the

apartment with the knowledge, actual or constructive,

that the apartment contained unsafe molding exposure

and toxins, including Stachybotrys chartarum, Aspergil-

lus, Penicillium, and other fungus species, which all con-

tained dangerous levels of micro toxins.

g. In failing to repair and replace the unsafe condi-

tions in the apartment;

h. In failing to provide prompt or reasonable main-

tenance in situations where service requests were placed

with the office as promised by advertising and the lease

agreement to the Roche family. Emergency calls, such as

leaks, were ignored despite their urgency, and in contrast

to the lease that warranted twenty-four hour service

would be available for emergencies.

23. Each of the above acts and omissions, singularly

and in combination with others, constitute a common law

and/or statutory negligence that proximately caused the

toxic mold in question and the resulting damage, injuries,

and destruction of property owned by the plaintiff and his

family.

24. The conduct of the defendants constitutes gross

negligence. This conduct also constitutes a heedless and

reckless disregard and a conscious disregard of the rights

of Roche and his family, and involves such an entire want

of care as to indicate that it was the result of a conscious

disregard of their rights, welfare and safety.

25. Further, Roche cannot more specifically allege the

acts of negligence on the part of the defendants herein

that proximately caused the condition to exist: in question

for the reason the facts in that regard are peculiarly

within the knowledge of the defendants. In the alterna-

tive, in the event the plaintiff is unable to prove specific

acts of negligence, plaintiff relies upon the doctrine of res

ipsa loquitur. In this connection, Roche would show that

the maintenance and operation of the apartment in ques-

tion were within the exclusive control of the defendants.

Plaintiff had no means of ascertaining the method or

manner in which the apartme1.t was maintained. The oc-

currence causing harm to the plaintiff, as described above,

was one which, in an ordinary course of events, would not

have occurred without negligence on the part of the de-

fendants. Consequently, defendants were negligent in

providing and maintaining the apartment in question,

which negligence was a proximate cause of the damages,

injuries and losses sustained by the plaintiff, as set out

more fully below.

26. Asa result of exposure to toxic mold caused by the

negligence of the defendants, Mr. Roche has suffered

chronic migraine headaches and sinus headaches, chronic

fatigue, lack of energy, dizziness, vertigo, forgetfulness,

confusion, lack of concentration, stomach aches, constipa-

tion and diarrhea, blurred vision, ear pain, restless sleep,

body aches, difficulty breathing, cough, burning, cramps,

lesions on his body, chest pain, swollen glands in the neck

and throat, loss of dexterjty and/or coordination, chronic

fatigue, burning eyes and eye pain.

27. Roche and his family were exposed to toxic mold

for approximately one year, from March 2001 until 2002,

when they were required to evacuate their apartment.

28. The Roche family was unaware of this exposure to

the toxic molds, including Stachybotrys Chartarum until

a Mold Investigation Report by Potomac Environmental

Testing Services of Germantown, Maryland, was con-

ducted and a report was received in March of 2002 at the

Roche family’s request and expense. That report stated

that there was a significant amount of past water leakage,

and that this is the cause of the toxic mold growth and

contamination that occurred in the apartment, and that

the level of contamination was extensive.

29. The occupants of Unit 104, which was the apart-

ment leased by Roche and his family, were continuously

and repeatedly exposed to toxic fungal spores during their

period of occupancy. As a result of the exposure to these

toxins, Roche developed physical sympioms of cough, sore

throat, and skin lesions; and neurological deficits which

permanently have weakened his concentration and brain

processing capabilities. Juanita Roche was injured by the

toxic exposure to the extent that she suffers significant

short-term auditory concentration and cognitive difficul-

ties, and has been diagnosed with Adjustment Disorder

with depression and anxiety.

30. Roche is 32 years old and his wife Juanita, 23

years old, a pre-school teacher, were in general good

health.

31. The Roche family, including his 11 year old son,

has been subjected to anxiety not only due to their health

concerns, but also because of stress from the loss of virtu-

ally all of their worldly possessions including many sen-

timental items, and disruption of their day-to-day life.

This was caused by the exposure to the toxic mold proxi-

mately caused by the defendants’ acts.

32. As a result of the above negligence of the defen-

dants, the Roche family has been caused great inconven-

ience, including what amounts to a constructive eviction.

33. The Roche family was forced to move out of their

apartment and was placed in another property owned by

Lincoln on a temporary basis. That property also was

contaminated with toxic mold. The temporary prop-

erty within The Village at Potomac Falls, was the guest

suite of the complex and was the Roche family’s home for

approximately a month and a half. A week after moving

in, Roche was confronted by Vernon Tatem, an employee

of Lincoln Property and was asked to allow Tatem to en-

ter his unit for contracted work. In Roche's unit they en-

tered a water closet in which access is restricted to resi-

dents by a lock. Upon unlocking and entering the water

closet Roche noticed the room was infiltrated with the

same mold as the old apartment, brought on by severe

water damage from the hot water over flow pipes leaking

inside the closet. Upon further investigation, it was dis-

covered that a number of units throughout that property

had the same problem as well as discovering fire sprinkler

control rooms with the problem as well. Upon witnessing

the mold in the room, the contractor who was sent to re-

pair the walls and remove the mold, looked at it, and

warned Roche to stay back from the mold and not to

breathe it and stated “Don't get near it, its [sic] bad news,

it can cause pneumonia and other bad stuff”.

34. The Roche family was temporarily moved to the

Village at Potomac Falls, also managed by Lincoln. The

family’s pet dog and cat had to be placed in a kennel, and

appeared to be affected by the toxins as they lost hair,

weight, and energy. The family was displaced from

March 10, 2002, to the present, without their personal

clothing, furnishings, and belongings.

35. The concealment from residents of exposure to

dangerous levels of toxins is and has been a conscious and

predetermined plan on the part of Lincoln.

36. For the year 2001, Lincoln managed other proper-

ties in Northern Virginia and in this region, in which they

were aware of the dangerousness of toxic mold. Lincoln

had a written policy that was in effect at all times rele-

vant herein, that warned their employees of the need to

immediately address discovery of mold in its commercial

rental properties and to take prompt action. Notwith-

standing this Lincoln written policy, they ignored it in the

instant case concerning the Roche family and continued a

course of concealment of this highly dangerous condition

from residents at their other rental properties owned or

managed by Lincoln or its wholly owned subsidiaries or

investment assignees.

37. During the same relevant time period, or just im-

mediately prior thereto, Lincoln was managing Summit

Village Apartments, now known as Rosslyn Heights, lo-

cated in Arlington, Virginia. Moisture problems in the

eee

apartments were brought to Lincoln’s attention, and tests

were conducted to determine if there had been formation

of toxic molds. After getting the results of the test, Lin-

coln went on a course of intentional concealment of this

information from the residents at Summit Village, telling

the residents there that they were fixing air conditioning

units in closets without disclosing to them that the ten-

ants themselves had been exposed to toxic spores. Even

as of this date, upon information and belief, those tenants

are unaware of the dangerous condition created, and upon

information and belief, are more likely than not, suffering

from health conditions and complications due to the expo-

sure to the toxic molds. It is estimated that approxi-

mately 55 tenant families at Summit Village, now known

as Rosslyn Heights, have been exposed and may suffer

from the same conditions as Roche and his family, and

may have been seeking medical treatment, not aware that

it was caused by the toxins due to mold formation. Lin-

coln went on a course to advise all of its staff to strictly

keep confidential this information from the tenants, and

even had a policy of only going into the apartments to

remediate at Summit Village when tenants were not at

home.

38. This course of deceptive conduct was the same that

they subjected the Roche family to, and others at West-

field Village.

39. When the Roche family was temporarily removed

to another Lincoln property, The Village at Potomac Falls,

the same deception process continued, as described above.

Vernon Tatem approached Roche and was asked to please

remain quiet about entering the unit, since he was not

authorized to inform Roche about the entering. After a

month’s period of residency, it was disclosed that Lin-

coln’s upper management was aware of the mold problems

as Chery! Bel-Dean called Mr. Tatem and Peter Moriba to

a meeting to instruct them to conceal the mold problems

on the property, including in Roche’s unit. Ms. Bel-Dean

informed the men that a very large lawsuit could be

filed against Lincoln. Melvin Bryant and Jon LeBeau, a

Lincoln executive officer, were also aware of the mold

problem at the temporary residence. Misters Mariba and

Tatum felt their jobs would be in jeopardy if they men-

tioned anything about the mold. Within three days of

Roche filing the grievance for arbitration with Lincoln

concerning his employment, Mr. Tatem was fired from his

position. Later, Mr. Mariba was terminated. The carpet

contractor who warned Roche about the mold was re-

moved from all contracts on the property for sharing in-

formation about the mold condition.

40. Upon information and belief, maintenance person-

nel and staff of Lincoln have also been exposed to the tox-

ins, with Lincoln’s knowledge, and they have suffered

similar consequences as the Roche family, but Lincoln has

concealed this information from their own employees.

Lincoln technicians have been unwittingly subjected to

dangerous levels of toxins at Summit Village, now known

as Rosslyn Heights, where the units there were classified

into 5 different levels of hazardous exposure. But the

Lincoln maintenance staff were never advised as to the

known levels they were exposed. [Outside contracting

work crews performing remediation wore fungicidal pro-

tective full body and glove coating and suits in the units.

Lincoln employees were given no protective suits or told of

the hazards; these same toxins are utilized as chemical

and biological warfare agents because of their human de-

structive capability.]

41. Roche was employed by Lincoln in December of

2001.

42. Asa result of Roche placing his landlord and now

his employer on notice of the mold conditions in his own

unit (he did not know that the toxins were in existence

prior to his job with Lincoln), he was ostracized in his em-

ployment.

43. They transferred him from his normal work posi-

tion and gave him an adverse employment transfer. Mr.

Roche was moved to a new location for work in The Vil-

lage at Potomac Falls, at which point he began to be

stripped of his benefits such as sick leave, health benefits,

and others. Once the mold issue became prevalent at The

Village at Potomac Falls, Mr. Roche was moved to other

smaller properties. Mr. Roche would be sent to perform

work at a complex and upon arriving they would inform

him that no work was needed. Mr. Roche would then be

made to wander the properties picking up litter, which

was not in his job's duties. Eventually Mr. Roche was

sent to Ashburn Meadows where he continued to be given

tasks such as trash removal, light bulb changing, and

painting parking curbs. Employees were also instructed

not to communicate with Mr. Roche.

44. Mr. Roche brought to the attention of Lincoln the

treatment he was receiving and the adverse discrimina-

tion caused by the fact that he exercised his rights to live

in a safe level toxin-free apartment. Lincoln terminated

Mr. Roche under a pretext, even though the matter was

subject to an employment arbitration clause in Mr.

Roche's employment contract. Prior to firing him on Au-

gust 16, 2002, Lincoln breached that arbitration agree-

ment by refusing to conduct the hearing before the Ameri-

can Arbitration Association in accordance with AAA regu-

lations. (The rules of AAA required Lincoln to file their

arbitration agreement with AAA on a yearly basis. By not

filing annually, AAA required that the hearing be con-

ducted under the Employment Arbitration Rules; Lincoln

denied that, demanding that the matter be subjected to

the Commercial Arbitration Rules.)

45. Lincoln proximately caused defamatory statements

and adverse employment actions against Mr. Roche as

described further below.

46. The above-described acts were intentionally caused

by Lincoln, resulting in emotional distress and further

complications to Roche's health.

47. Asa result of the exposure to the toxins, the Roche

family’s personal property has been destroyed, lost or

taken away. This has amounted to a conversion of

Roche's property. This loss totals over $165,000.00 in

personal property loss, including their automobile, and

does not even include the sentimental loss of such things

as wedding gifts, momentos, photos, precious and price-

less items to the family, including but not limited to all

photographs of children, first lost teeth, Ms. Roche's wed-

ding dress, wedding photos, every home video, all original

school work of children over their lives, medical records,

birth certificates, social security cards, school and health

records, financial documents, sentimential [sic] stuffed

animals and hand made items, engagement rings, gifts,

diplomas and degrees, awards and other important docu-

ments.

48. Roche has suffered medical expenses caused by the

exposure to the toxins, and will continue to suffer medical

expenses in the future to treat his injuries, including seri-

ous breathing difficulties, memory and hearing loss, diz-

ziness, flu-like symptoms, and lung scarring caused by the

airborne toxins, known as mycotoxins.

49. The personal injuries and brain damage caused by

the defendants to Roche are permanent and debilitating.

Roche and his family have been placed on daily medica-

tion, in the past and for the future, to treat lungs, skill

disorders, memory loss, and emotional distress caused by

living out of suitcases and by destroying Mr. Roche's em-

ployment/career rights with Lincoln.

50. All of the above allegations are relevant to all the

below Counts, and are incorporated by reference in each

one of the below listed Counts, as if fully set forth and re-

alleged therein.

(Consider each Count below as having incorpo-

rated by reference all of the above paragraphs.)

COUNT I

(Negligence ~ Per se)

51. Plaintiff incorporates herein by reference Para-

graphs | through 50 above.

52. The defendants had a duty to maintain the Roche

apartment with due care in accordance with their duties

as a landlord, and in accordance with the Virginia Land-

lord Tenant Act, and under industry standards, and to

use due care and skill necessary to meet the standards of

the landlord.

53. The defendants breached the aforementioned duty

and was negligence [sic] in its maintenance of the apart-

ment. Specific acts of negligence include, but are not lim-

ited to, the fact that they:

a. Failed to keep the apartment free from toxic ma-

terial and in a livable condition, as required under the

Lease, and specifically, pertaining to the requirement that

they prevent dilatory intrusion of water through the walls

and coverings and to prevent leakage;

b. Failed to adequately respond to notification and

failure to determine the character, quality and damage

and hazardous conditions in existence upon notification;

c. Failed to adequately repair known leaks that re-

sulted in formation of mold from water infiltration

throughout the areas of the apartment;

d._ Failed to select an appropriate remediation sys-

tem that would adequately and properly keep the apart-

ment waterproof and free from water intrusions;

e. Failed to properly supervise employees, agents

and subcontractors to assure that all work proceeded in

accordance with, and in conformity with, industry stan-

f. Failed to detect errors and failures in workman-

ship and quality of their repairs;

g. Accepted and approved defective and/or non-

h. Provided deficient workmanship and/or defective

materials without proper inspection to ensure that the

work was correct and in conformity with customary indus-

try standards in accordance with the landlord/tenant obli-

gations at common law and under the Lease and failed to

tions to correct such defects;

i. Failed to adequately waterproof and properly

maintain the premises which would not allow moisture

and infiltration into the interior of the structure;

j. Failed to replace defective pipes in a system that

was known at the time to be defective and in need of re-

placement the pipes being constructed of polybutylene, a

material that the defendants knew should have been re-

placed in all of the structured apartments because of the

industry standard concerning these pipes;

k. Failed to guard against the negligent acts of

subcontractors;

|. Failed to correct defective conditions;

m. Failed to report the failure of installation to

comply with manufacturer and other specifications; and

n. Committed other acts of negligence and breaches

of the applicable Building Code and landlord/tenant obli-

gations which may be revealed through discovery.

54. It was reasonably foreseeable that the aforemen-

tioned acts of negligence would damage the plaintiffs.

55. The Landlord/Tenant Act and Building Code and

industry standards referenced above were enacted for

public safety.

56. The plaintiff belongs to that class of persons whose

benefit the referenced Code and industry standards were

enacted.

57. As a direct and proximate result of the defendants’

negligence, the plaintiff has suffered damages to their

property and their person, including permanent damage

to their brains, in the amount of Ten Million and no/100

Dollars ($10,000,000.00), or according to proof at trial,

plus interest.

COUNT I

(Breach of Lease)

58. Plaintiff incorporates herein by reference Para-

graphs | through 57 above.

59. Pursuant to the Lease between the defendant and

Roche, the defendants provided an express warranty with

respect to their duties to properly maintain the referenced

premises.

60. As set forth herein, the apartment contained nu-

merous latent defects which the plaintiff had no know!l-

edge at the time he entered into the Lease, including but

not limited to, the piping that was defective, and the air

conditioning units, and the installation of such was of

such a poor quality, and not free from faults and defects,

including, but not limited to leaky piping and HVAC, and

wall, and all was not in accordance with good construction

practices. The latent problems and defects, unknown to

Roche, occurred and manifested within the applicable

warranty period.

61. By its [sic] promises to Roche to repair the defects,

through its advertisements and inducements, the defen-

dants committed themselves to honor its [sic] warranty

obligations in the Lease and by common law.

62. By reason of the defects and defective condition

and activities as described herein, and the spreading of

toxic mold causing toxins and spores of dangerous toxins

to spread throughout the apartment, and through its own

testing, the defendants breached its express warranties to

the plaintiff.

63. The plaintiff had notified the defendants of the de-

fective condition of the apartment and the breaches of the

express warranties, but the defendants have failed to per-

form necessary remedial activities to correct these defects

in a timely manner.

64. By reason of its [sic] failure to repair or replace the

aforementioned defects in a timely manner, the defen-

dants breached their continuing duty to repair under the

to recover under this warranty.

65. By reason of the defendants’ breach of its express

warranty, plaintiff has suffered damages in the amount of

Ten Million and no/100 Dollars ($10,000,000.00), accord-

ing to proof at trial, plus interest.

COUNT III

(Breach of Implied Warranties)

66. The plaintiff incorporates herein by reference

Paragraphs | through 64 above.

67. By operation of law, the defendants impliedly war-

ranted that the apartment would be habitable and free

from toxic and dangerous materials.

68. Further, through its promotional literature and

other representations, defendants impliedly warranted to

Roche that the apartment was free from substantial de-

fects and was constructed in a workmanlike manner in

accordance with the standard of workmanlike quality

prevailing at the time and place of construction, and spe-

cifically at the time that the Lease was entered into.

69. Defendants breached this warranty in that the

work was not of a workmanlike quality prevailing at the

time and failed to satisfy the applicable standards of habi-

tability and contained numerous latent defects.

70. Roche, who leased the apartment only approxi-

mately 12 years after it was built, did not and could not

by reasonable inspection, have discovered the defects from

said breaches of the warranties of habitability and work-

manship at the time they leased the apartment, and when

they did discover these at the very inception of their

Lease, brought them to the attention of the defendants,

but no action was taken to correct the same.

71. By reason of defendants’ breach of its implied war-

ranties, plaintiff has suffered damages in the amount of

Ten Million and no/100 Dollars ($10,000,000.00), plus in-

terest, or according to proof at trial, and will continue to

suffer damages unless relief is granted.

COUNT IV

(Breach of Contract)

72. Plaintiff incorporates herein by reference Para-

graphs | through 71 above.

73. Plaintiff was informed on or about the seventh of

March, 2002 that the apartment was experiencing signifi-

cant mold damage as a direct result of water intrusion

damage found at the heating and air conditioning closet,

the front master bath, the front entrance hall coat closet,

the washer and dryer room/pantry. This water intrusion

and water was damaging not only the person of Mr. Roche

but his pet, children, and wife.

74. As stated herein, plaintiff's apartment contained

numerous latent defects of which Roche had no knowledge

until receiving the Toxic Mold Report, and that the

apartment did not adequately perform the function for

which it was intended and was not free from the defects

described.

75. Roche informed defendants of the defects as listed

in his letter.

76. Defendants agreed to perform some of the re-

quested repairs in consideration of Roche's forbearance in

filing any type of legal claim or action against them re-

garding the mold condition.

77. Roche accepted the defendants’ offer to remediate,

but defendants refused to give the assurance that the

apartment would be free from the toxic mold condition.

78. On numerous occasions, Roche tried to schedule

repairs but was met with resistence [sic].

79. The defendants breached its contract in failing to

perform the necessary remedial activities to correct the

defects in a timely manner.

80. The defendant materially breached the contract

with the plaintiff in the particulars previously described.

81. Asa direct, foreseeable and proximate result of de-

fendants’ material breach of contract, Roche has suffered

actual damages in the amount of Ten Million and no/100

Dollars ($10,000,000.00), plus interest, or according to

proof at trial. These damages include, but are not limited

to the following:

a. The cost to replace all of their damaged personal

property and all the personal goods and belongings;

b. The out-of-pocket expenditures incurred by the

Roche family;

c. The cost of experts and consultants required to

determine the extent and severity of the problems with

the plaintiff's apartment, automobile and personal prop-

erty;

d. Reasonable attorney’s fees, as allowed by law;

e. Diminution in value of Roche's property; and

f. Other damages, including special and exemplary

damages, such as loss interest and other damages to be

shown at the trial of this action.

COUNT V

(Actual Fraud/Intentional Mi tation)

82. Plaintiff incorporates by reference Paragraphs 1

through 81 above.

83. Through its sales brochure, and advertisements,

defendants misrepresented that plaintiff's home was of

high quality and would be maintained.

84. Defendant Lincoln’s statements referenced in the

above paragraph, that the apartment was of high quality

and there was prompt attention for emergency mainte-

nance service, was false.

85. Defendants intentionally misrepresented these

material facts, or made them with reckless abandon and

disregard for the truth, and intended the Roche family

and subsequent purchasers of apartments to rely on them

in their leasing of the apartments at Westfield Village.

86. Defendants [sic] actions were done in willful and

wanton disregard of Roche’s rights.

87. Roche reasonably and justifiably relied upon the

defendants’ false and misleading representations of mate-

rial facts, all to Roche’s detriment.

88. As a direct result of defendants’ actual fraud,

plaintiff has suffered damages in the amount of Ten Mil-

lion and no/100 Dollars ($10,000,000.00) or according to

proof at trial, plus interest and attorney's fees, and puni-

tive damages to the statutory limit provided.

COUNT VI

(Constructive Fraud/Negligent Misrepresentation)

89. Plaintiff incorporates herein by reference Para-

graphs | though 88 above.

90. At the time the defendants made such false repre-

sentations described above, defendants should have

known of the inherent defects with the pipes, moisture

leakage, unrepaired inherent defects, and should have

disclosed such in its literature, which was ultimately and

foreseeably distributed to Roche. Defendants failed to

disclose such defects to Roche.

91. Defendants innocently or negligently misrepre-

sented these material facts and intended the Roche family

and subsequent lessees, such as Roche, to rely on them in

their leasing of apartments.

92. Roche reasonably and justifiably relied upon de-

fendants’ false and misleading representations of material

facts, to Roche’s detriment.

93. As a direct result of defendants’ constructive fraud,

Roche has suffered damages in the amount of Ten Million

and no/100 Dollars ($10,000,000.00) or according to proof

at trial, plus interest and attorney’s fees.

COUNT VII - CONSUMER FRAUD/

TREBLING OF DAMAGES

(Violation of Virginia Consumer Protection Act)

94. Piaintiff incorporates herein by reference Para-

graphs | through 92 above.

95. The aforementioned acts by the defendants consti-

tutes [sic] prohibitive practices within the meaning of the

Virginia Consumer Protection Act, Virginia Code Section

59.1-200.

96. As set forth in the paragraphs above, defendants

violated the Virginia Consumer Protection Act by making

statements and omissions, including, but not limited to:

a. Stating that the apartment was habitable and of

high quality and would be promptly maintained upon no-

tification of defects; |

b. Omitting that they knew they had inherently de-

fective piping systems, and moisture intrusion in exis-

tence, even though it had a policy and knowledge from its

management and ownership of Summit Village, as de-

scribed above, during the relevant time, and knew of the

dangerousness, but yet it failed to disclose the same;

c. Advertising or offering for lease apartments that

were defective, without clearly and unequivocally indicat-

ing in the advertisements or offers of lease, that the

apartments were subject to the problems indicated above;

d. Misrepresenting the quality of their service and

management in response to complaint or notification of

defects;

e. Misrepresenting that the defendants’ services

were of a particular quality or standard;

f. Advertising goods or services with the intent not

to honor their claims, as advertised, namely, that they

would give high quality maintenance, service and habit-

able and high quality apartment premises, and that the

premises were of a first class building quality;

g. Offering for lease defective goods;

h. Using deception, fraud, false pretense, false

promise and/or misrepresentation in connection with a

consumer transaction.

97. The foregoing violations of the Virginia Consumer

Protection Act, Virginia Code Section 59.1-200, et seq.,

were willful, and consequently support trebled damages,

as contemplated under the Virginia Act.

98. Pursuant to Virginia Code Section 59.1-204(B),

Roche is entitled to an award of reasonable attorney's fees

and court costs.

99. As a direct and proximate result of defendants’

misconduct in violation of the Virginia Consumer Protec-

tion Act, Roche has suffered actual damages in the

amount of fen Million and _ n0/100 _ Dollars

($10,000,000.00) or, according to proof at trial, including

trebled damages as authorized by statute, plus interest

and attorney's fees.

COUNT VIII - FALSE ADVERTISING

(Violati f Virginia Code Section 18.2-216)

100. Plaintiff incorporates herein by reference Para-

graphs | through 99 above.

101. With the intent to lease or increase the consump-

tion thereof by the public, and in violation of Virginia

Code Section 18.2-216, the defendants published, dis-

seminated, circulated before the public and potential con-

sumers, including Roche, advertising information concern-

ing the performance and characteristics of its services and

apartments, which were untrue, deceptive and mislead-

ing, so as to induce the public in general, and Roche in

particular, to lease the premises. This includes ads in

Apartment Shoppers Guide, Consumer Guides, and inter-

net postings proclaiming the same misleading pro-

nouncements described above.

102. Defendants’ statements constitute violation of

Virginia Code Section 182-216 [sic], as set forth in detail

above.

103. Pursuant to Virginia Code Section 18.2-216, and

59.1-68.4, Roche is entitled to recover damages and rea-

sonable attorney's fees due to defendants’ foregoing viola-

tions.

104. As a direct and proximate result of defendants’

foregoing violation, Roche has suffered actual damages in

the amount of Ten Million and no/100 Dollars

($10,000,000.00), or according to proof at trial, plus inter-

est, attorney's fees and court costs.

COUNT IX

(Tortuous [sic] Interference With Contract

by Improper Methods)

105. The allegations contained in Paragraphs 1

through 109 above are incorporated herein by reference as

if fully set forth herein.

106. Defendant, Lincoln, maintains at-will employ-

ment contracts with all of its employees.

107. Lincoln, on numerous occasions, tortuously [sic]

interfered with plaintiff's employment contract by using

improper methods. Defendant Lincoln employed verbal

and written attempts to discredit, defame and ostracize

the plaintiff with the motive to terminate him from his

employment by taking adverse actions against him.

108. Lincoln employed improper methods in its tortu-

ous [sic] interference with Roche’s employment contract

by defrauding him and giving him false assurances that

they would abide by their grievance procedure, which they

have refused to honor. During the course of its fraudulent

conduct, Lincoln did numerous acts to frustrate his em-

ployment status and obfuscate the grievance process.

109. Lincoln employed improper methods by use of its

superior position as employer over Roche.

110. Lincoln abused this confidential relationship and

superior position in an effort to destroy the employment

and wage earning capacity of Roche, and did not act in

good faith in addressing the grievance.

111. Roche requests compensatory damages, punitive

damages, and attorney's fees, that the Court may deem

appropriate, for the harm caused by Lincoln’s tortuous

[sic] interference.

COUNT X

(Conversion)

112. Plaintiff incorporates Paragraphs 1 through 116

herein as if fully set out.

113. Defendant converted the personal property of

Roche in the manner described above, by dispossessing

Roche from his property without his consent and against

his interests; and by destroying or losing property of

Roche; and by wrongfully withholding property.

114. The conversion of Roche’s personal property is

approximately $250,000.00, of which $160,000.00 is for

replacement cost for items destroyed by exposure to the

toxic mold spores, and the other loss of priceless senti-

mental and other items that could never be replaced, such

as gifts, mementos, wedding memorabilia, and as de-

scribed above.

WHEREFORE, the Plaintiff, Christopher Roche, re-

quests judgment in the amount of Two Hundred Fifty

Thousand and no/100 Dollars ($250,000.00) for conversion

of his personalty.

COUNT XI

(Intentional Infliction of Emotional Distress)

115. All above paragraphs are incorporated herein as

if fully set out.

116. The defendants, jointly and severally, acted in-

tentionally, or with such wanton disregard of the conse-

quences of its actins [sic] to amount to a conscious disre-

gard for the rights of others.

117. The defendants purposefully inflicted emotional

distress, or intended the above-described conduct, and

knew or should have known, that emotional distress

would likely result.

118. This conduct described above was outrageous and

intolerable in that it offends against the generally ac-

cepted standards of decency and morality.

119. The defendants’ conduct was the proximate cause

of Roche's emotional distress.

120. Because the acts were intentional and/or done

with reckless disregard of the rights of others, punitive

damages should be awarded to deter these defendants

and others from similar conduct in the future.

WHEREFORE, the Plaintiff, Christopher Roche, mo-

tions the court for judgment in the amount of Ten Million

Dollars ($10,000,000.00), plus interest from the date of

injury, plus punitive damages according to law.

COUNT XII

(Negligent Infliction of Emotional Distress)

121. All above paragraphs are incorporated by refer-

ence as if fully set out.

122. Plaintiff Roche has suffered physical manifesta-

tions of injury, including aggravation of body sores, stress,

and neurological damage, as a result of the defendant's

conduct.

123. These injuries were caused by defendant's negli-

gence as described above.

WHEREFORE the Plaintiff, Christophe Roche, motions

the court for judgment in the amount of Ten Million Dol-

lars ($10,000,000.00), plus interest from the date of in-

jury.

PLAINTIFF DEMANDS A TRIAL BY JURY ON ALL COUNTS

CHRISTOPHE ROCHE

By Counsel

/s/ JERRY M. PHILLIPS

Jerry M. Phillips, Esq.

PHILLIPS, BECKWITH, HALL & CHASE

10513 Judicial Drive, Suite 100

Fairfax, Virginia 22030

Telephone: (703) 691-4100

Facsimile: (703) 385-2745

Virginia State Bar No. 9211

[seal omitted] COMMONWEALTH OF VIRGINIA [seal omitted]

Circuit Court of Fairfax County

4110 Chain Bridge Road

Fairfax, Virgima 22030

703-246-4358

To: LINCOLN PROPERTY CO

T/A LINCOLN Prop Co ECW INC

SERVE R/A CMWTH LEGAL Svc CORP

4701 Cox RD SUITE 301

GLEN ALLEN, VA

NOTICE OF MOTION FOR JUDGMENT

You are hereby notified that unless within twenty-one

(21) days after service of this Notice of Motion for Judg-

ment on you, response is made by filing in the Clerk's Of.

fice of this court a pleading in writing, in proper legal

form, judgment may be entered against you by default,

without further notice.

Done in the name of the Commonwealth of Virginia, this

26th day of Aug 2002.

Law No. L206873

John T. Frey, Clerk

By: /s/ JANET L. {illegible}

Deputy Clerk

PHILLIPS, JERRY M. P.Q.

VIRGINIA:

Ih “HE CIRCUIT COURT OF FAIRFAX COUNTY

JUANITA ROCHE,

Plaintiff

v. LAW No 206873

LINCOLN PROPERTY COMPANY

T/A LINCOLN PROPERTY COMPANY ECW, INC.,

Agent

3500 Lincoln Plaza

500 North Akard Street, Suite 3300

Dallas, Texas 72501,

Defendant

Serve: Registered Agent

Commonwealth Legal Services Corporation

4701 Cox Road, Suite 301

Glen Allen, Virginia 23060

and

INVESCO INSTITUTIONAL (N/A, INC.)

INSTITUTIONAL DIVISION OF AMVESCAP

A/K/A INVESCO REALTY ADVISORS,

Defendant

Serve: Registered Agent

Commonwealth Legal Services Corporation

4701 Cox Road, Suite 301

Glen Allen, Virginia 23060

and

SWIB INVESTMENT COMPANY

STATE OF WISCONSIN INVESTMENT BOARD

LINCOLN PROPERTY COMPANY

1155 Herndon Parkway

H ton, Virgini

Defendant

Serve: Registered Agent

Commonwealth Legal Services Corporation

4701 Cox Road, Suite 301

Glen Allen, Virginia 23060

MOTION FOR JUDGMENT

COMES NOW, the Plaintiff, Juanita Roche, by counsel,

and respectfully motions the Court for Judgment against

the defendants, for the following reasons:

1. Plaintiff, Juanita Roche, is a citizen of Fairfax

County, Virginia, residing at 13620 Bent Tree Circle, Unit

302, Centreville, Virginia 20120.

2. This Court has jurisdiction of this matter as all of

the causes of actions and injuries occurred in Fairfax

County, Virginia.

3. Upon information and belief, Lincoln Property

Company is a corporation with corporate headquarters

located at 500 North Akard Street, Suite 3300, Dallas,

5111 Woodmere Drive, Westfield Village Apartments,

Unit #104, Centreville, Fairfax County, Virginia 20120.

purposes and times related to this complaint, traded by

and through “INVESCO Realty Advisors”.

7. INVESCO Realty Advisors, through its wholly

owned and/or sponsored investment affiliate and/or sub-

sidiary, SWIB Investment Company, was the owner of

5111 Woodmere Drive, Centreville, Virginia. [Defendant,

SWIB Investment Company will hereafter be referred to

as (SWIB")}.

8. Upon information and belief. defendant/owner as

described above, SWIB, by and through defendants

INVESCO and Lincoln, may have sold or transferred title

or assigned the ownership of Westfield Village Apart-

ments which includes 5111 Woodmere Drive, Centreville,

Virginia 20120. Upon further discovery in this case, and

depending upon whether liability for claims during the

relevant periods herein have been transferred and ac-

cepted by a new owner pursuant to a recent sale, will de-

termine if additional defendant or defendants will be

named.

9. Upon information and belief, INVESCO and/or

Lincoln Property, jointly or severally, have transferred

the management and ownership of Summit Village

Apartments, now known as Rosslyn Heights, 1804 North

Quinn Street, Arlington, Virginia, to Gates, Hudson Prop-

erty Management, a business entity located in Fairfax,

Virginia. Whether or not this new entity has assumed

habilities or is subject to these claims, will be determined

by further discovery in this cause.

10. Plaintiff, Juanita Roche, [hereinafter referred to as

(“Roche”)], and Christophe Roche, signed a Lease with the

owner believed to be SWIB or Invesco, and Lincoln Prop-

erty for 5111 Woodmere Drive, Apartment Unit #104,

Centreville, Virginia 20120 (hereinafter this loca’ion will

be referred to as “the Roche apartment”), which Lease is

in the possession of the Defendant Lincoln. [Roche has

made requests for copies of this Lease from the landlord.

Her only copy of this Lease was taken and/or lost by the

landlord during a forced “move out” described below. As

of the date of filing, the lease has not been provided even

though it has been requested by Roche and by written

correspondence. |

11. The above-described Lease sets forth the terms

and obligations of the parties to the Roche apartment.

12. All the defendants are engaged in the real estate

investment and/or property management business and

trade under the various names listed above.

13. The defendants, at the time of the occurrence in

question, and upon information and belief, currently own

and operate Westfield Village Apartments located in Fair-

fax County, Virginia, as described above.

14. Roche and her family leased an apartment in the

complex (Unit 104) from the defendants, as described

above, under the terms of the Lease.

15. Roche was a resident/tenant at Westfield Village

during all relevant times and gave numerous notifications

of the problems that are described below.

16. Lincoln breached the Lease by ignoring the notifi-

cations of moisture damage which resulted in the forma-

tion of toxic mold that adversely affected the personal

property and health of the Roche family.

17. For months, the Roche family advised Lincoln of

water leaks that needed repairing. Holes had been cut in

the walls of his [sic] apartment by the landlord that

needed to be repaired, along with carpet that had been

torn up, and the fact that mold was all over his [sic]

apartment was brought to Lincoln's attention.

18. Numerous requests were made for rectifying this

problem, and most of the notices were personally given by

Roche. In addition to written letters, all of the warnings

of the mold problems were disregarded by the defendants.

19. Lincoln held itself out through its advertisements

and inducement to prospective residents that they “pro-

vide exemplary service in a quality home environment,”

and which inducement was the primary and material

reason why Roche entered into the Lease. Lincoln had

advertised that they provided 24 hour technical mainte-

nance service, and had in effect a same-day service re-

quest policy. The apartment brochure advertisement set

out what the prospective tenants’ expectations were under

a heading “YOUR EXPECTATIONS,” and stated, “You

can count on our team of highly trained professionals to

provide you with a 24-hour service guarantee, ... . "

20. Due to the failures and breach of its duties, as de-

scribed below, Roche and her family, including a six year-

old son, have been personally injured, as further described

below.

21. The plaintiff has suffered injuries in connection

with the exposure to the toxic mold and has been treated

by physicians for these injuries, all caused by the breach

of duties owed by Lincoln.

22. All the defendants, acting either through Lincoln

and/or their obligations as owners of the property through

the Lease, and acting by and through their agents, were

responsible for one or more acts of common law and/or

statutory negligent conduct, with respect to Roche's

apartment, including but limited, as follows:

a. In failing to provide and equip the apartment

with replacement piping for the polybutylene piping that

had been recalled five years ago by the pipe producers and

subject of many settlements due to recall lawsuits.

b. In failing to inspect the apartment to determine

if it was subject to water damage, mold damage, excessive

c. In failing to provide Roche's family with a safe

place to live;

d. In failing to adequately inspect the apartment

for defects in the heating and air conditioning units and

in the substrate duct material as well as condensation

drain lines and filtration systems employed by the HVAC.

e. In providing, operating and maintaining the

apartment in question with unsafe conditions, namely;

recalled polybutylene water piping throughout the entire

building. Through research, the pipes were known to rup-

ture and cause massive water damage. As a result, older

appliances such as washers, dryers, refrigerators, and

dish washers were rusted out and leaking, leading to fail-

ure. Roche's washing machine water pump malfunctioned

and flooded the apartment.

f. In providing, operating and maintaining the

apartment with the knowledge, actual or constructive,

that the apartment contained unsafe molding exposure

and toxins, including Stachybotrys chartarum, Aspergil-

lus, Penicillium, and other fungus species, which all con-

tained dangerous levels of micro toxins.

g. In failing to repair and replace the unsafe condi-

tions in the apartment;

h. In failing to provide prompt or reasonable main-

tenance in situations where service requests were placed

with the office as promised by advertising and the lease

agreement to the Roche family. Emergency calls, such as

leaks, were ignored despite their urgency, and in contrast

to the lease that warranted twenty-four hour service

would be available for emergencies.

23. Each of the above acts and omissions, singularly

and in combination with others, constitute [sic] a common

law and/or statutory negligence that proximately, caused

the toxic mold in question and the resulting damage, inju-

ries, and destruction of property owned by the plaintiff

and her family.

24. The conduct of the defendants constitutes gross

of Roche and her family, and involves such an entire want

of care as to indicate that it was the result of a conscious

disregard of their rights, welfare and safety.

the

liarly within the knowledge of the defendants. In the

alternative, in the event the plaintiff is unable to prove

specific acts of negligence, plaintiff relies upon the doc-

trine of res ipsa loquitur. In this connection, Roche would

show that the maintenance and operation of the apart-

ment is question were within the exclusive control of the

defendants. Plaintiff had no means of ascertaining the

method or manner in which the apartment was main-

tained. The occurrence causing harm to the plaintiff, as

described above, was one which, in an ordinary course of

events, would not have occurred without negligence on the

part of the defendants. Consequently, defendants were

negligent in providing and maintaining the apartment in

question, which negligence was a proximate cause of the

damages, injuries and losses sustained by the plaintiff, as

set out more fully below.

26. Asa result of exposure to toxic mold caused by the

negligence of the defendants, Ms. Roche has suffered

chronic migraine headaches and sinus headaches, chronic

fatigue, lack of energy, dizziness, vertigo, forgetfulness,

confusion, lack of concentration, stomach aches, constipa-

tion and diarrhea, blurred vision, ear pain, restless sleep,

body aches, difficulty breathing, cough, burning, cramps,

chest pain, swollen glands in the neck and throat, loss of

dexterity and/or coordination, chronic fatigue, burning

eyes and eye pain.

27. Roche and her family were exposed to toxic mold

for approximately one year, from March 2001 until 2002,

when they were required to evacuate their apartment.

28. The Roche family was unaware of this exposure to

the toxic molds, including Stachybotrys Chartarum until

a Mold Investigation Report by Potomac Environmental

Testing Services of Germantown, Maryland, was con-

ducted and a report was received in March of 2002 at the

Roche family’s request and expense. That report stated

that there was a significant amount of past water leakage,

and that this 1s the cause of the toxic mold growth and

contamination that occurred in the apartment, and that

the level of contamination was extensive.

29. The occupants of Unit 104, which was the apart-

ment leased by Roche and her family, were continuously

and repeatedly exposed to toxic fungal spores during their

period of occupancy. As a result of the exposure to these

toxins, Ms. Roche developed physical symptoms of cough,

sore throat, and neurological deficits which permanently

have weakened her concentration and brain processing

capabilities, and she has been diagnosed with Adjustment

Disorder with depression and anxiety.

30. Roche is 23 years old pre-school teacher, and her

husband, Christophe, 32 years old, were in general good

health.

31. The Roche family, including their 6 year-old son,

has been subjected to anxiety not only due to their health

concerns, but also because of stress from the loss of virtu-

ally all of their worldly possessions including many sen-

timental items, and disruption of their day-to-day life.

This was caused by the exposure to the toxic mold proxi-

mately caused by the defendants’ acts.

32. As a result of the above negligence of the defen-

dants, the Roche family has been caused great inconven-

ience, including what amounts to a constructive eviction.

33. The Roche family was forced to move out of their

apartment and was placed in another property owned by

Lincoln on a temporary basis. That property also was

contaminated with toxic mold. The temporary prop-

erty within The Village at Potomac Falls, was the guest

suite of the complex and was the Roche family’s home for

approximately a month and a half. A week after moving

in, Mr. Roche was confronted by Vernon Tatem, an em-

ployee of Lincoln Property and was asked to allow Tatem

to enter his unit for contracted work. In Roche’s unit they

entered a water closet in which access is restricted to resi-

dents by a lock. Upon unlocking and entering the water

closet, Mr. Roche noticed the room was infiltrated with

the same mold as the old apartment, brought on by severe

water damage from the hot water over flow pipes leak-

ing inside the closet. Upon further investigation, it was

discovered that a number of units throughout that prop-

erty had the same problem as well as discovering fire

sprinkler control rooms with the problem as well. Upon

witnessing the mold in the room, the contractor who was

sent to repair the walls and remove the mold, looked at it,

and warned Mr. Roche to stay back from the mold and not

breathe it and stated “Don’t get near it, its [sic] bad news,

it can cause pneumonia and other bad stuff”.

34. The Roche family was temporarily moved to the

Village at Potomac Falls, also managed by Lincoln. The

family’s pet dog and cat had to be placed in a kennel, and

appeared to be affected by the toxins as they lost hair,

weight, and energy. The family was displaced from

March 10, 2002, up and to the present, without their per-

sonal clothing, furnishings, and belongings.

35. The concealment from residents of exposure to

dangerous levels of toxins is and has been a conscious and

predetermined plan on the part of Lincoln.

36. For the year 2001, Lincoln managed other proper-

ties in Northern Virginia and in this region, in which they

were aware of the dangerousness of toxic mold. Lincoln

had a written policy that was in effect at all times rele-

vant herein, that warned their employees of the need to

immediately address discovery of mold in its commercial

rental properties and to take prompt action. Notwith-

standing this Lincoln written policy, they ignored it in the

instant case concerning the Roche family and continued a

course of concealment of this highly dangerous condition

from residents at their other rental properties owned or

managed by Lincoln or its wholly owned subsidiaries or

investment assignees.

37. During the same relevant time period, or just im-

mediately prior thereto, Lincoln was managing Summit

Village Apartments (now known as Rosslyn Heights) lo-

cated in Arlington, Virginia. Moisture problems in the

apartments were brought to Lincoln’s attention, and tests

were conducted to determine if there had been forma-

tion of toxic molds. After getting the results of the test,

Lincoln went on a course of intentional concealment of

this information from the residents at Summit Village,

telling the residents there that they were fixing air condi-

tioning units in closets without disclosing to them that

the tenants themselves had been exposed to toxic spores.

Even as of this date, upon information and belief, those

tenants are unaware of the dangerous condition created,

and upon information and belief, are more likely than not,

suffering from health conditions and complications due to

the exposure to the toxic molds. It is estimated that ap-

proximately 55 tenant families at Summit Village, now

known as Rosslyn Heights, have been exposed and may

suffer from the same conditions as Roche and his family,

and may have been seeking medical treatment, not aware

that it was caused by the toxins due to mold formation.

Lincoln went on a course to advise all of its staff to strictly

keep confidential this information from the tenants, and

even had a policy of only going into the apartments to

remediate at Summit Village when tenants were not at

home.

38. This course of deceptive conduct was the same that

they subjected the Roche family to, and others at West-

field Village.

39. When the Roche family was temporarily removed

to another Lincoln property, The Village at Potomac Falls,

the same deception process continued, as described above.

Vernon Tatem approached Mr. Roche and was asked to

please remain quiet about entering the unit, since he was

not authorized to inform Mr. Roche about the entering.

After a month's period of residency, it was disclosed that

Lincoln’s upper management was aware of the mold prob-

lems as Cheryl Bel-Dean called Mr. Tatem and Peter

Moriba to a meeting to instruct them to conceal the mold

problems on the property, including in Roche’s unit. Ms.

Bel-Dean informed the men that a very large lawsuit

could be filed against Lincoln. Melvin Bryant and Jon

LeBeau, a Lincoln executive officer, were also aware of

the mold problem at the temporary residence. Misters

Peter Mariba and Tatum felt their jobs would be in

jeopardy if they mentioned anything about the mold.

Within three days of Mr. Roche filing a grievance for

arbitration with Lincoln concerning his employment, Mr.

Tatem was fired from his position. Later, Mr. Peter

Mariba, was terminated. The carpet contractor who

warned Mr. Roche about the mold, was removed from all

contracts on the property for sharing information about

the mold condition.

40. Upon information and belief, maintenance person-

nel and staff of Lincoln have also been exposed to the tox-

ins, with Lincoln’s knowledge, and they have suffered

similar consequences as the Roche family, but Lincoln has

concealed this information from their own employees.

Lincoln technicians have been unwittingly subjected to

dangerous levels of toxins at Summit Village (now known

as Rosslyn Heights), where the units there were classified

into 5 different levels of hazardous exposure. But the de-

fendants’ maintenance staff were not advised as to the

known levels they were exposed. [Outside contracting

work crews performing remediation wore fungicidal pro-

tective full body and glove coating and suits in the units.

Lincoln employees were given no protective suits or told of

the hazards; these same toxins are utilized as chemical

and biological warfare agents because of their human de-

structive capability.]

41. Roche was employed by Lincoln in December of

2001.

42. Asa result of Mr. Roche placing his landlord and

now his employer on notice of the mold conditions in his

own unit (he did not know that the toxins were in exis-

tence prior to his job with Lincoln), he was ostracized in

his employment.

43. They transferred him from his normal work posi-

tion and gave him an adverse employment transfer. Mr.

Roche was moved to a new location for work in The Vil-

lage at Potomac Falls, at which point he began to be

stripped of his benefits such as sick leave, health benefits,

and others. Once the mold issue became prevalent at The

Village at Potomac Falls, Mr. Roche was moved to other

smaller properties. Mr. Roche would be sent to perform

work at a complex and upon arriving they would inform

him that no work was needed. Mr. Roche would then be

made to wander the properties picking up litter, which

was not in his job’s duties. Eventually Mr. Roche was

sent to Ashburn Meadows where he continued to be given

tasks such as trash removal, light bulb changing, and

painting parking curbs. Employees were also instructed

not to communicate with Mr. Roche.

44. Mr. Roche brought to the attention of Lincoln the

treatment he was receiving and the adverse discrimina-

tion caused by the fact that he exercised his rights to live

in a safe level toxin-free apartment. Lincoln terminated

Mr. Roche under a pretext, even though the matter was

subject to an employment arbitration clause in Mr.

Roche’s employment contract. Prior to firing him on Au-

gust 16, 2002. Lincoln breached that arbitration agree-

ment by refusing to conduct the hearing before the Ameri-

can Arbitration Association in accordance with AAA regu-

lations. (The rules of AAA required Lincoln to file their

arbitration agreement with AAA on a yearly basis. By not

filing annually, AAA required that the hearing be con-

ducted under the Employment Arbitration Rules; Lincoln

denied that, demanding that the matter be subjected to

the Commercial Arbitration Rules.)

45. Lincoln proximately caused defamatory statements

and adverse employment actions against Mr. Roche as

described.

46. The above-described acts were intentionally caused

by Lincoln, resulting in emotional distress and further

complications to Ms. Roche's health.

47. Asa result of the exposure to the toxins, the Roche

family’s personal property has been destroyed, lost or

taken away. This has amounted to a conversion of

Roche’s property. This loss totals over $165,000.00 in per-

sonal property loss, including their automobile, and does

not even include the sentimental loss of such things as

wedding gifts, momentos, photos, precious and priceless

items to the family, including but not limited to all photo-

graphs of children, first lost teeth, Ms. Roche's wedding

dress, wedding photos, every home video, all original

school work of children over their lives, medical records,

birth certificates, social security cards, school and health

records, financial documents, sentimential [sic] stuffed

animals and hand made items, engagement rings, gifts,

diplomas and degrees, awards and other important docu-

ments.

48. Roche has suffered medical expenses caused by the

exposure to the toxins, and will continue to suffer medical

expenses in the future to treat her injuries, including se-

rious breathing difficulties, memory and hearing loss, diz-

ziness, flu-like symptoms, and lung scarring caused by the

airborne toxins, known as mycotoxins.

49. The personal injuries and brain damage caused by

the defendants to Roche are permanent and debilitating.

Roche and her family have been placed on daily medica-

tion, in the past and for the future, to treat lungs, skill

disorders, memory loss, and emotional distress caused by

living out of suitcases and by destroying Mr. Roche's

employment/career rights with Lincoln.

50. All of the above allegations are relevant to all the

below Counts, and are incorporated by reference in each

one of the below listed Counts, as if fully set forth and re-

alleged therein.

(Consider each Count below as having incorpo-

rated by reference all of the above paragraphs.)

COUNT I

(Negligence ~ Per se)

51. Plaintiff incorporates herein by reference Para-

graphs | through 50 above.

52. The defendants had a duty to maintain the Roche

apartment with due care in accordance with their duties

as a landlord, and in accordance with the Virginia Land-

lord Tenant Act, and under industry standards, and to

use due care and skill necessary to meet the standards of

the landlord.

53. The defendants breached the aforementioned duty

and was negligence [sic] in its maintenance of the apart-

ment. Specific acts of negligence include, but are not lim-

ited to, the fact that they:

a. Failed to keep the apartment free from toxic ma-

terial and in a livable condition, as required under the

Lease, and specifically, pertaining to the requirement that

they prevent dilatory intrusion of water through the walls

and coverings and to prevent leakage;

b. Failed to adequately respond to notification and

failure to determine the character, quality and damage

and hazardous conditions in existence upon notification;

c. Failed to adequately repair known leaks that re-

sulted in formation of mold from water infiltration

throughout the areas of the apartment;

d. Failed to select an appropriate remediation sys-

tem that would adequately and properly keep the apart-

ment waterproof and free from water intrusions;

e. Failed to properly supervise employees, agents

and subcontractors to assure that all work proceeded in

accordance with, and in conformity with, industry stan-

dards and applicable Building Codes;

f. Failed to detect errors and failures in workman-

ship and quality of their repairs;

g. Accepted and approved defective and/or non-

conforming materia!s and/or labor;

h. Provided deficient workmanship and/or defective

materials without proper inspection to ensure that the

work was correct and in conformity with customary indus-

try standards in accordance with the landlord/tenant obli-

gations at common law and under the Lease and failed to

follow their own policies and instructions and specifica-

tions to correct such defects;

i. Failed to adequately waterproof and properly

maintain the premises which would not allow moisture

and infiltration into the interior of the structure;

j. __ Failed to replace defective pipes in a system that

was known at the time to be defective and in need of re-

placement, the pipes being constructed of polybutylene, a

material that the defendants knew should have been re-

placed in all of the structured apartments because of the

industry standard concerning these pipes;

k. Failed to guard against the negligent acts of

subcontractors;

1. Failed to correct defective conditions;

m. Failed to report the failure of installation to

comply with manufacturer and other specifications; and

n. Committed other acts of negligence and breaches

of the applicable Building Code and landlord/tenant obli-

gations which may be revealed through discovery.

54. It was reasonably foreseeable that the aforemen-

tioned acts of negligence would damage the plaintiffs.

55. The Landlord/Tenant Act and Building Code and

industry standards referenced above were enacted for

public safety.

56. The plaintiff belongs to that class of persons whose

benefit the referenced Code and industry standards were

enacted.

57. As a direct and proximate result of the defendants’

negligence, the plaintiff has suffered damages to their

property and their person, including permanent damage

to their brains, in the amount of Ten Million and no/100

Dollars ($10,000,000.00), or according to proof at trial,

plus interest.

COUNT IU

(Breach of Lease)

58. Plaintiff incorporates herein by reference Para-

graphs | through 57 above.

59. Pursuant to the Lease between the defendant and

Roche, the defendants provided an express warranty with

respect to their duties to properly maintain the referenced

premises.

60. As set forth herein, the apartment contained nu-

merous latent defects which the plaintiff had no know!l-

edge at the time he entered into the Lease, including but

not limited to, the piping that was defective, and the air

conditioning units, and the installation of such was of

such poor quality, and not free from faults and defects,

including, but not limited to leaky piping and HVAC, and

heating and air conditioning units, and rotting out dry-

wall, and all was not in accordance with good construction

practices. The latent problems and defects, unknown to

Roche, occurred and manifested within the applicable

warranty period.

61. By its promises to Roche to repair the defects,

through its advertisements and inducements, the defen-

dants committed themselves to honor its warranty obliga-

tions in the Lease and by common law. —

62. By reason of the defects and defective condition

and activities as described herein, and the spreading of

toxic mold causing toxins and spores of dangerous toxins

to spread throughout the apartment, and through its own

testing, the defendants breached its express warranties to

the plaintiff.

63. The plaintiff had notified the defendants of the de-

fective condition of the apartment and the breaches of the

express warranties, but the defendants have failed to per-

form necessary remedial activities to correct these defects

in a timely manner.

64. By reason of its failure to repair or replace the

aforementioned defects in a timely manner, the defen-

dants breached their continuing duty to repair under the

Lease, under the common law, and under the applicable

to recover under this warranty.

65. By reason of the defendants’ breach of its express

warranty, plaintiff has suffered damages in the amount of

Ten Million and no/100 Dollars ($10,000,000.00), accord-

ing to proof at trial, plus interest.

COUNT Ill

(Breach of Implied Warranties)

66. The plaintiff incorporates herein by reference

Paragraphs | through 64 above.

67. By operation of law, the defendants impliedly war-

ranted that the apartment would be habitable and free

from toxic and dangerous materials.

68. Further, through its promotional literature and

other representations, defendants impliedly warranted to

Roche that the apartment was free from substantial de-

fects and was constructed in a workmanlike manner in

accordance with the standard of workmanlike quality

prevailing at the time and place of construction, and spe-

cifically at the time that the Lease was entered into.

69. Defendants breached this warranty in that the

work was not of a workmanlike quality prevailing at the

time and failed to satisfy the applicable standards of habi-

tability and contained numerous latent defects.

70. Roche, who leased the apartment only approxi-

mately 12 years after it was built, did not and could not

by reasonable inspection, have discovered the defects from

said breaches of the warranties of habitability and work-

manship at the time they leased the apartment, and when

they did discover these at the very inception of their

Lease, brought them to the attention of the defendants,

but no action was taken to correct the same.

71. By reason of defendants’ breach of its implied war-

ranties, plaintiff has suffered damages in the amount of

Ten Million and no/100 Dollars ($10,000,000.00), plus in-

terest, or according to proof at trial, and will continue to

suffer damages unless relief is granted.

COUNT IV

(Breach of Contract)

72. Plaintiff incorporates herein by reference Para-

graphs 1 through 71 above.

73. Plaintiff was informed on or about the seventh of

March, 2002 that the apartment was experiencing signifi-

cant mold damage as a direct result of water intrusion

damage found at the heating and air conditioning closet,

the front master bath, the front entrance hall coat closet,

the washer and dryer room/pantry. This water intrusion

and water was damaging not only the person of Ms. Roche

but her pet, children, and husband.

74. As stated herein, plaintiff's apartment contained

numerous latent defects of which Roche had no knowledge

until receiving the Toxic Mold Report, and that the

apartment did not adequately perform the function for

which it was intended and was not free from the defects

described.

75. Roche informed defendants of the defects as listed

in his letter.

76. Defendants agreed to perform some of the re-

quested repairs in consideration of Roche’s forbearance in

filing any type of legal claim or action against them re-

garding the mold condition.

77. Roche accepted the defendants’ offer to remediate,

but defendants refused to give the assurance that the

apartment would be free from the toxic mold condition.

78. On numerous occasions, Roche tried to schedule

repairs but was met with resistance.

79. The defendants breached its contract in failing to

perform the necessary remedial activities to correct the

defects in a timely manner.

80. The defendant materially breached the contract

with the plaintiff in the particulars previously described.

81. Asa direct, foreseeable and proximate result of de-

fendants’ material breach of contract, Roche has suffered

actual damages in the amount of Ten Million and no/100

Dollars ($10,000,000.00), plus interest, or according to

proof at trial. These damages include, but are not limited

to the following:

a. The cost to replace all of their damaged personal

property and all the personal goods and belongings;

b. The out-of-pocket expenditures incurred by the

Roche family;

c. The cost of experts and consultants required to

determine the extent and severity of the problems with

the plaintiff's apartment, automobile and personal prop-

erty;

d. Reasonable attorney's fees, as allowed by law;

e. Diminuti ao in value of Roche's property; and

f. Other damages, including special and exemplary

damages, such as loss interest and other damages to be

shown at the trial of this action.

COUNT V

(Actual Fraud/Intentional Misrepresentation)

82. Plaintiff incorporates by reference Paragraphs 1

through 81 above.

83. Through its sales brochure, and advertisements,

defendants misrepresented that plaintiff's home was of

high quality and would be maintained.

84. Defendant Lincoln's statements referenced in the

above paragraph, that the apartment was of high quality

and there was prompt attention for emergency mainte-

nance service, including the guarantee of 24-hour service,

was false.

85. Defendants intentionally misrepresented these

material facts, or made them with reckless abandon and

disregard for the truth, and intended the Roche family

and subsequent tenants of apartments to rely on them in

their leasing of the apartments at Westfield Village.

86. Defendants |sic] actions were done in wilful and

wanton disregard of Roche's rights.

87. Roche reasonably and justifiably relied upon the

defendants’ false and misleading representations of mate-

rial facts, all to Roche's detriment.

88. As a direct result of defendants’ actual fraud,

plaintiff has suffered damages in the amount of Ten Mil-

lion and no/100 Dollars ($10,000,000.00) or according to

proof at trial, plus interest and attorney's fees, and puni-

tive damages to the statutory limit provided.

COUNT VI

(Constructive Fraud/Negligent Misrepresentation)

89. Plaintiff incorporates herein by reference Para-

graphs | though 88 above.

90. At the time the defendants made such false repre-

sentations described above, defendants should have

known of the inherent defects with the pipes, moisture

leakage, unrepaired inherent defects, and should have

disclosed such in its literature, which was ultimately and

foreseeably distributed to Roche. Defendants failed to

disclose such defects to Roche.

91. Defendants innocently or negligently misrepre-

sented these material facts and intended the Roche family

and subsequent lessees, such as Roche, to rely on them in

their leasing of apartments.

92. Roche reasonably and justifiably relied upon de-

fendants’ false and misleading representations of material

facts, to Roche's detriment.

93. As a direct result of defendants’ constructive fraud,

Roche has suffered damages in the amount of Ten Million

and no/100 Dollars ($10,000,000.00) or according to proof

at trial, plus interest and attorney's fees.

COUNT VII - CONSUMER FRAUD/

TREBLING OF DAMAGES

(Violation of Virginia Consumer Protection Act)

94. Plaintiff incorporates herein by reference Para-

graphs | through 92 above.

95. The aforementioned acts by the defendants consti-

tutes [sic] prohibitive practices within the meaning of the

Virginia Consumer Protection Act, Virginia Code Section

59.1-200.

96. As set forth in the paragraphs above, defendants

violated the Virginia Consumer Protection Act by making

statements and omissions, including, but not limited to:

a. Stating that the apartment was habitable and of

high quality and would be promptly maintained upon no-

tification of defects;

b. Omitting that they knew they had inherently de-

fective piping systems, and moisture intrusion in exis-

tence, even though it had a policy and knowledge from its

management and ownership of Summit Village, as de-

scribed above, during the relevant time, and knew of the

dangerousness, but yet it failed to disclose the same;

c. Advertising or offering for lease apartments that

were defective, without clearly and unequivocally indicat-

ing in the advertisements or offers of lease, that the

apartments were subject to the problems indicated above;

d. Misrepresenting the quality of their service and

management in response to complaint or notification of

defects;

e. Misrepresenting that the defendants’ services

were of a particular quality or standard;

f. Advertising goods or services with the intent not

to honor their claims, as advertised, namely, that they

would give high quality maintenance, service and habit-

able and high quality apartment premises, and that the

premises were of a first class building quality;

g. Offering for lease defective goods;

h. Using deception, fraud, false pretense, false

promise and/or misrepresentation in connection with a

consumer transaction.

97. The foregoing violations of the Virginia Consumer

Protection Act, Virginia Code Section 59.1-200, et seq.,

were willful, and consequently support trebled damages,

as contemplated under the Virginia Act.

98. Pursuant to Virginia Code Section 59.1-204(B),

Roche is entitled to an award of reasonable attorney's fees

and court costs.

99. As a direct and proximate result of defendants’

misconduct in violation of the Virginia Consumer Protec-

tion Act, Roche has suffered actual damages in the

amount of Ten Million and _ »n0/100 _ Dollars

($10,000,000.00) or, according to proof at trial, including

trebled damages as authorized by statute plus interest

and attorney's fees.

COUNT VIII - FALSE ADVERTISING

100. Plaintiff incorporates herein by reference Para-

graphs | through 99 above.

101. With the intent to lease or increase the consump-

tion thereof by the public, and in violation of Virginia

Code Section 18.2-216, the defendants published, dis-

seminated, circulated before the public and pot. ntial con-

sumers, including Roche, advertising information concern-

ing the performance and characteristics of its services and

apartments, which were untrue, deceptive and mislead-

ing, so as to induce the public in general, and Roche in

particular, to lease the premises. This includes ads in

Apartment Shoppers Guide, Consumer Guides, and inter-

net postings proclaiming the same misleading pro-

nouncements described above.

102. Defendants’ statements -constitute violation of

Virginia Code Section 18.2-216, as set forth in detail

above.

103. Pursuant to Virginia Code Section 18.2-216, and

59.1-68.3, Roche is entitled to recover damages and rea-

sonable attorney's fees due to defendants’ foregoing viola-

tions.

104. As a direct and proximate result of defendants’

foregoing violation, Roche has suffered actual damages in

the amount of Ten Million and _ no/100 Dollars

($10,000,000.00), or according to proof at trial, plus inter-

est, attorney's fees and court costs.

COUNT IX

(Conversion)

105. Plaintiff incorporates Paragraphs 1 through 104

herein as if fully set out.

106. Defendant converted the personal property of

Roche in the manner described above, by dispossessing

Roche from her property without her consent and against

her interests; and by destroying or losing property of

Roche; and by wrongfully withholding property.

107. The conversion of Roche’s personal property is

approximately $250,000.00, of which $160,000.00 is for

replacement cost for items destroyed by exposure to the

toxic mold spores, and the other loss of priceless senti-

mental and other items that could never be replaced, such

as gifts, mementos, wedding memorabilia, and as de-

scribed above.

WHEREFORE, the Plaintiff, Juanita Roche, requests

judgment in the amount of Two Hundred Fifty Thousand

and no/100 Dollars ($250,000.00) for conversion of her

personalty.

COUNT X

(Intentional Infliction of Emotional Distress)

108. All above paragraphs are incorporated herein as

if fully set out.

109. The defendants, jointly and severally, acted in-

tentionally, or with such wanton disregard of the conse-

quences of its action to amount to a conscious disregard

for the rights of others.

110. The defendants purposefully inflicted emotional

distress, or intended the above described conduct, and

knew or should have known, that emotional distress

would likely result.

111. This conduct described above was outrageous and

intolerable in that it offends against the generally ac-

cepted standards of decency and morality.

112. The defendants’ conduct was the proximate cause

of Roche's emotional distress.

113. Because the acts were intentional and/or done

with reckless disregard of the rights of others, punitive

damages should be awarded to deter these defendants

and others from similar conduct in the future.

WHEREFORE, the Plaintiff, Juanita Roche, motions

the court for judgment in the amount of Ten Million Dol-

lars ($10,000,000.00), plus interest from the date of in-

jury, plus punitive damages according to law.

COUNT XI

(Negligent Infliction of Emotional! Distress)

114. All above paragraphs are incorporated by refer-

ence as if fully set out.

115. Plaintiff Roche has suffered physical manifesta-

tions of injury, including aggravation of depression, anxi-

ety, and neurological damage, as a result of the defen-

dant’s conduct.

116. These injuries were caused by defendant's negli-

gence as described above.

WHEREFORE the Plaintiff, Juanita Roche, motions the

court for judgment in the amount of Ten Million Dollars

($10,000,000.00), plus interest from the date of injury.

PLA'NTIFF DEMANDS A TRIAL BY JURY ON ALL COUNTS

JUANITA ROCHE

By Counsel

/s/ JERRY M. PHILLIPS

Jerry M. Phillips, Esq.

PHILLIPS, BECKWITH, HALL & CHASE

10513 Judicial Drive, Suite 100

Fairfax, Virginia 22030

Telephere: (703) 691-4100

Facsimile: (703) 385-2745

Virginia State Bar No. 9211

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action No. 02-1390-A

CHRISTOPHE ROCHE,

Plaintiff,

Vv.

LINCOLN PROPERTY CO., ET AL.,

Defendants.

[filed Sept. 17, 2002]

NOTICE OF REMOVAL

Pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, Defen-

dants Lincoln Property Co. (“Lincoln”), INVESCO institu-

tional (“INVESCO”) and the State of Wisconsin Invest-

ment Board Investment Co. (“SWIB”) (collectively referred

to herein as “Defendants”), hereby remove to this Court a

civil lawsuit filed by Christophe Roche in the Circuit

Court of Fairfax County, Law No. 206874. Without ad-

mitting any of the allegations of the Complaint, Defen-

dants’ grounds for removing this action are as follows:

1. On or about August 22, 2002, Plaintiff filed a

twelve-count Complaint against Defendants in the Circuit

Court of Fairfax County (the “State Complaint”).

2. Inthe State Complaint, Plaintiff alleges negligence

per se (Count 1), breach of lease (Count I), breach of im-

plied warranties (Count III), breach of contract (Count

IV), actual fraud/intentional misrepresentation (Count V),

constructive fraud/negligent misrepresentation (Count

VI), consumer fraud (Count VII), false advertising (Count

VIII), tortious interference with contract by improper

methods (Count IX), conversion (Count X), intentional in-

fliction of emotional distress (Count XI), and negligent

infliction of emotional distress (Count XII). Plaintiff

seeks compensatory damages and punitive damages of

$100 million.

3. On August 30, 2002, Plaintiff's State Complaint

was served (together with a summons) upon Defendants.

See Ex. 1.' No other pleadings have been filed with the

Circuit Court of Fairfax County.

4. This action is removable because if [sic] falls

within the original diversity jurisdiction of this Court un-

der 28 U.S.C. §§ 1332 and 1441(a). According to his Com-

plaint, Plaintiff is a citizen of and is domiciled in the

Commonwealth of Virginia.

5. Lincoln is not incorporated in the Commonwealth

of Virginia, nor does it have its principal place of business

in the Commonwealth of Virginia. Rather, Lincoln is a

Texas corporation with its principal place of business in

Texas.

6. INVESCO is not incorporated in the Common-

wealth of Virginia, nor does it have its principal place of

business in the Commonwealth of Virginia. Rather, IN-

VESCO is a Delaware corporation with its principal place

of business in Georgia.

7. SWIB is not incorporated in the Commonwealth of

Virginia, nor does it have its principal place of business in

the Commonwealth of Virginia. SWIB is an independent

agency of the state of Wisconsin and, thus, a Wisconsin

citizen.

8. Therefore, this case is removable by reason of di-

versity of citizenship because the amount in controversy

is more than $75,000, exclusive of interest and costs,

the parties are of diverse citizenship, and none of the

' Exhibit 1, in accordance with 28 U.S.C. § 1446(a), includes all proc-

ess, pleadings, papers, and Orders which have been served upon De-

fendants in the state court lawsuit that is being removed.

Defendants is a citizen or resident of the Commonwealth

of Virginia. Accordingly, this Court has jurisdiction to

hear the subject matter of this action pursuant to 28

U.S.C. § 1332.

9. The United States District Court for the Eastern

District of Virginia, Alexandria Division, is the proper

venue for the action pursuant to 28 U.S.C. § 1441(a), be-

cause it is “the district court of the United States for the

district and division embracing the place where such ac-

tion is pending.”

10. All Defendants have joined in the removal of this

matter from the Circuit Court of Fairfax County to the

United States District Court for the Eastern District of

Virginia, Alexandria Division.

11. This notice of removal has been timely filed within

30 days after the earliest service of a summons and com-

plaint. See Murphy Brothers, Inc. v. Michetti Piper

Stringing, Inc., 526 U.S. 344 (1999).

12. A copy of this notice of removal is being served

upon Plaintiff through his counsel of record and with the

Clerk of the Court for the Circuit Court of Fairfax County.

WHEREFORE, Defendants hereby remove to the

United States District Court for the Eastern District of

Virginia the lawsuit now pending against them in the

Circuit Court of Fairfax County.

Respectfully submitted,

/s/ CONNIE N. BERTRAM

Connie N. Bertram (Bar No. 31713)

Venable, Baetjer, Howard & Civiletti, LLP

1201 New York Ave., N.W., Suite 1000

Washington, D.C. 20005

(202) 962-4800

Counsel for Lincoln Property Co.

—

/s/ JOHN SCALIA/KLV

John Scalia

Greenberg Traurig LLP

1750 Tysons Boulevard, 12th Floor

McLean, Virginia 22102

703-749-1300

Kenneth A. Lapatine

Greenberg Traurig, LLP

885 Third Avenue, 21st Floor

New York, NY 10022

(212) 801-9200

Counsel for INVESCO and SWIB

[certificate of service omitted]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action No. 02-1389-A

JUANITA ROCHE,

Plaintiff,

Vv.

LINCOLN PROPERTY CO., ET AL.,

Defendants.

[filed Sept. 17, 2002]

NOTICE OF REMOVAL

Pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, Defen-

dants Lincoln Property Co. (“Lincoln”), INVESCO institu-

tional (“INVESCO”) and the State of Wisconsin Invest-

ment Board Investment Co. (“SWIB”) (collectively referred

to herein as “Defendants”), hereby remove to this Court a

civil lawsuit filed by Juanita Roche in the Circuit Court of

Fairfax County, Law No. 206873. Without admitting any

of the allegations of the Complaint, Defendants’ grounds

for removing this action are as follows:

1. On or about August 22, 2002, Plaintiff filed a

twelve-count Complaint against Defendants in the Circuit

Court of Fairfax County (the “State Complaint”).

2. Inthe State Complaint, Plaintiff alleges negligence

per se (Count I), breach of lease (Count II), breach of im-

plied warranties (Count III), breach of contract (Count

IV), actual fraud/intentional misrepresentation (Count V),

constructive fraud/negligent misrepresentation (Count

V1), consumer fraud (Count VII), false advertising (Count

VIII), conversion (Count IX), intentional infliction of

emotional distress (Count X), and negligent infliction of

emotional distress (Count XI). Plaintiff seeks compensa-

tory damages and punitive damages of $100 million.

3. On August 30, 2002, Plaintiff's State Complaint

was served (together with a summons) upon Defendants.

See Ex. 1.' No other pleadings have been filed with the

Circuit Court of Fairfax County.

4. This action is removable because if [sic] falls

within the original diversity jurisdiction of this Court un-

der 28 U.S.C. §§ 1332 and 1441(a). According to his [sic]

Complaint, Plaintiff is a citizen of and is domiciled in the

Commonwealth of Virginia.

5. Lincoln is not incorporated in the Commonwealth

of Virginia, nor does it have its principal place of business

in the Commonwealth of Virginia. Rather, Lincoln is a

Texas corporation with its principal place of business in

Texas.

6. INVESCO is not incorporated in the Common-

wealth of Virginia, nor does it have its principal place of

business in the Commonwealth of Virginia. Rather, IN-

VESCO is a Delaware corporation with its principal place

of business in Georgia.

7. SWIB is not incorporated in the Commonwealth of

Virginia, nor does it have its principal place of business in

the Commonwealth of Virginia. SWIB is an independent

agency of the state of Wisconsin and, thus, a Wisconsin

citizen.

8. Therefore, this case is removable by reason of di-

versity of citizenship because the amount in controversy is

more than $75,000, exclusive of interest and costs, the

parties are of diverse citizenship, and none of the Defen-

dants is a citizen or resident of the Commonwealth of

Virginia. Accordingly, this Court has jurisdiction to hear

' Exhibit 1, in accordance with 28 U.S.C. § 1446(a), includes all proc-

ess, pleadings. papers, and Orders which have been served upon De-

fendants in the state court lawsuit that is being removed.

the subject matter of this action pursuant to 28 U.S.C.

§ 1332.

9. The United States District Court for the Eastern

District of Virginia, Alexandria Division, is the proper

venue for the action pursuant to 28 U.S.C. § 1441(a), be-

cause it is “the district court of the United States for the

district and division embracing the place where such ac-

tion is pending.”

10. All Defendants have joined in the removal of this

matter from the Circuit Court of Fairfax County to the

United States District Court for the Eastern District of

Virginia, Alexandria Division.

11. This notice of removal has been timely filed within

30 days after the earliest service of a summons and com-

plaint. i i Pi

Stringing, Inc., 526 U.S. 344 (1999).

12. A copy of this notice of removal is being served

upon Plaintiff through his counsel of record and with the

Clerk of the Court for the Circuit Court of Fairfax County.

WHEREFORE, Defendants hereby remove to the

United States District Court for the Eastern District of

Virginia the lawsuit now pending against them in the

Circuit Court of Fairfax County.

Respectfully submitted,

/s/ CONNIE N. BERTRAM

Connie N. Bertram (Bar No. 31713)

Venable, Baetjer, Howard & Civiletti, LLP

1201 New York Ave., N.W., Suite 1000

Washington, D.C. 20005

(202) 962-4800

Counsel for Lincoln Property Co.

/s/_ JOHN SCALIA/KLV

John Scalia

Greenberg Traurig LLP

1750 Tysons Boulevard, 12th Floor

McLean, Virginia 22102

703-749-1300

Kenneth A. Lapatine

Greenberg Traurig, LLP

885 Third Avenue, 21st Floor

New York, NY 10022

(212) 801-9200

Counsel for INVESCO and SWIB

[certificate of service omitted]

VIRGINIA: /s/

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

CHRISTOPHE ROCHE,

Plaintiff,

v. Law No. 206874

LINCOLN PROPERTY CO.,

INVESCO INSTITUTIONAL, and

SWIB INVESTMENT Co.,

Defendants.

wee eee eee ee

[filed Sept. 18, 2002]

NOTICE OF FILING OF NOTICE OF REMOVAL

PLEASE TAKE NOTICE that, on September 17, 2002,

Defendants Lincoln Property Co., INVESCO Institutional

and the SWIB Investment Co. filed a Notice of Removal

for the above-referenced action with the Clerk for the

United States District Court for the Eastern District of

Virginia. A copy of the Notice of Removal is attached

hereto.

Respectfully submitted,

/s/ CONNIE N. BERTRAM

Connie N. Bertram (Bar No. 31713)

Venabie, Baetjer, Howard & Civiletti, LLP

1201 New York Ave., N.W., Suite 1000

Washington, D.C. 20005

(202) 962-4800

Counsel for Lincoln Property Co.

JOHN SCALIA/KLV

John Scalia

Greenberg Traurig LLP

1750 Tysons Boulevard, 12th Floor

McLean, Virginia 22102

703-749-1300

Kenneth A. Lapatine

Greenberg Traurig, LLP

885 Third Avenue, 21st Floor

New York, NY 10022

(212) 801-9200

Counsel for INVESCO and SWIB

[certificate of service omitted]

VIRGINIA:

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

JUANITA ROCHE,

Plaintiff(s)

v. At Law No. CL-2002-0206873

LINCOLN PROPERTY CO., ET AL.,

Defendant(s)

FINAL ORDER

It appearing to the Court by the Notice of Removal re-

ceived by this Court that this case has been removed to

the United States District Court for the Eastern District

of Virginia, Alexandria Division.

It is ADJUDGED and ORDERED that this cause is

hereby REMOVED and stricken from the active docket of

this Court.

ENTERED this 4th day of October, 2002.

/s/ STANLEY PAUL KLEIN

Circuit Court Judge

[Clerk stamp omitted]

VIRGINIA:

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

CHRISTINE [sic] ROCHE,

Plaintiff(s)

v. At Law No. CL-2002-0206874

LINCOLN PROPERTY CO., ET AL..,

Defendant(s)

FINAL ORDER

It appearing to the Court by the Notice of Removal re-

ceived by this Court that this case has been removed to

the United States District Court for the Eastern District

of Virginia, Alexandria Division.

It is ADJUDGED and ORDERED that this cause is

hereby REMOVED and stricken from the active docket of

this Court.

ENTERED this 4th day of October, 2002.

/s/ STANLEY PAUL KLEIN

Circuit Court Judge

[Clerk stamp omitted]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action No. 02-1390-A (CMH)

CHRISTOPHE ROCHE,

Plaintiff.

LINCOLN PROPERTY CO., ET AL.,

Defendants.

[filed Oct. 8, 2002]

DEFENDANTS’ MEMORANDUM

IN SUPPORT OF THEIR MOTION TO DISMISS

text, signature block, and certificate of service omitted]

Weetfield Village Apts ORs

Apartwent Lease Cont ract + il

Unit Mumber 11104 Unit Type... ci-a Lease Tere 12 Months

current vate i Friday. “arch 3°. 265

Lesseca/Meridents Recponoib.e ‘oc: case 2 Cheas2*°; : ® . ieee aw

(As defined in pare 81)

Addreso (See pare #2) 3 Sill @: mere Drive 8104

Centrev:..@. YA 2€:.29

Commencesent Date (See pera £2) 4 Sunday. April :. 2c:

Ending Date (See pare 62) S. Sunday. March 31, 2002

Security Deposit Amount (See pera. £3). ‘ $300.00

Ronthly Rent (See pers. 64): 7 $1. 455.00

Proreted Rent (See para. #4): $1,455.00

Other (See pare. 64): s.

@. 10% lete rent fee after the Sth of the sonth @. $145.60

b. returned check fee b. $30.00

16.

i?.

as.

20.

21.

Rent Peysble Hanagement Office (See pare. 84) : >.

Utilities Peid by Qwmer: io.

Blectricity Option (See para #5) 11.

Pro Rete Share (See pare £5) 12

Occupents Only (See para. #6) 13

Resident's Mame and Security Deposit 14.

Amount (See pera 687)

Barly Terwination Fee (See pers #8) is

Pet Rent (See pare 617) is.

Type of Pettis) (See pare. #17) i?.

Breedis) of Petis) (See pere. 617): is.

Memeis) of Pettis) (See pare. 617): 19.

Color(s! of Pet(s) (See pars. 617): 20.

Beergency Release Representative (See para. 634)

Resident Name:

Specie) Provisions and Additions) Agreements (See pera. 634):

Reed and Accepted: i.

Representative Neme, Address:

SCOR OEEEEEEEEEEEE EE HHEEEHEHHEEH CEH EEE EME ESEOES

$115 Woodmere Dr. #103. Centreville, VA 20120

Refuse.

Water/Sewer and Slectricity paid by resident.

w/a

Roche. Chrictopher/Caestillo, Juanite

300 o@

Christopher Roche and Juanits Castillo

Deposit

Peid By:

$i 485 00

“sa

m/a

w/a

m/a

nn ee ee

THE PARTIES TOTHIS LEASE (ihe 1 >) are the owner of the Apartment (hereinafter referredio §=—-_ Dwner™). actung by and through vis authomaed agen

Lincoln Propeny Company (LPC) and the resdenus referenced on page one of this Lease (heremafier referred to as Resident”)

Owner hereby leases to Resident the Aparument unit referenced on page one of this Lease (the “Apartment ) together with household furniure and furnishengs

‘fany descnbed in the Furniture Inventory and Condipon Form attached hereto as Bxhibst “A and made s part hereof The Apartmeni is for use by Residen: on!)

as a pmvate residence and not for any business or chuid care use. for a term commencing and ending as 1s referenced on page one of (his Lease (ihe Lease Term )

The Lease subject io Owner's approval. may be renewed and the Lease Term extended by Resident by executing s Renewal Addendum The Renewal Addendum

shall have the same force and effect as the execution of e new lease Uniess another lease contract is signed by the parties which supersedes (his Lease or 0

Renewal Addendum is signed. or unless a writen notice of termination is given by either party a least forty-five (45) days prom to ihe end of ihe Lease Term

the Lease will be automatically renewed on a month to month basis with applicable month to month fees dumng which me forty five (4%) days wnvien none

will be required in order for exther party to termunate the Lease

SECURITY DEPOSIT Resident agrees that the Secunty Deposit set forth on page one of thus Lease will be paid on or before the signing of the Lease The

Secunty Deposit 1s not advance Rent and cannot be applied to Rent by Resident. However. as provided in Paragraph 25 of the Lease Owner may under Lerman

descended conditions apply the Secunty Deposst toward Rent Refunds of the Secunty Depost shal! be made in accordance with ihe terms of ihe Lease A

CONDITION TO THE REFUND OF THE SECURITY DEPOSIT IS THAT RESIDENT MUST PROVIDE OWNER WRITTEN NOTICE OF SURRENDER

OF THE APARTMENT AT LEAST FORTY-FIVE (45) DAYS PRIOR TO THE EXPIRATION OR TERMINATION OF THE LEASE OR ANY EXTENSION

OR RENEWAL HEREOF

RENT. Resident(s) will pay rent per caleodar month as is referenced on page one of this Lease (the “Rent’’). Of the Rent, the amount set forth on page

one of this Lease shall be allocated to furniture rental Rent will be prorated from the date of move-in to the lst day of the following month Reni is due

and payable in advance and without demand or offset ot the Apartment Manager's office in the County referenced on page one of this Lease ON OR

REFORE THE 1ST DAY OF EACH MONTH. AFTER THE IST DAY OF THE MONTH THE RENT IS LATE, AND ALL REMEDIES IN PARA.

GRAPH 19 WILL BE APPLICABLE. Cash will not be accepted unless specifically authorized in writing in advance. Ai Owner's option, it may require

that all Rent and other sums be paid in either cash, certified check, cashier's check or money order, and by one monthly payment rather (han multiple

payments If Resident shall fail to pey any instaliment of rent within five (S) days of the date on which it is due and payable, Resident shal! pay in addition

to the rent, s late charge in the amount of ten percent (10%) of the rent due The late charge is additional Rent. Acceptance of the Rent hy Owner and

anytime between the Ist and Sth day of the month is not « waiver of the due date for Rent. Resident's right to possession of the Apartment and all of

Owner's obligations hereunder are expressly on the timety Ty oye pee received by Owner shall be applied first to non-reni

items, then to Rent. RESIDENT WILL PAY A OF $30.00 FOR EACH CHECK RETURNED TO OWNER BY A BANK OR OTHER

ENTITY FOR ANY REASON. In the event thet Owner receives two (2) non-cufficient fund ("NSF") checks, Owner may require that Rent and «li

other sums due be paid in either cash, certified check, cashier's check or money order.

UTILITIES Owner will pay forthe utilines referenced on page one of the Lease; WHICH SHALL IN NO EVENT INCLUDE TELEPHONE Residen: shal!

pay for all other utlines On or before move-in. Remdent shall be responsible for notifying the appropmate utility compames for (he purpose of placing sad

volves in residents eame Resident's failure to effect such change within three (3) days of move-in may resul! in Owner assessing as additional rent residents

prorata utility charges together with a reasonable cost for deterrrening such an assessment Utilives shal! be used only for ortinary household purposes and sha’!

not be wasied by Resident Owner reserves the mght. at any time during the Lease Term. or any extensions or renewals thereof to clect by giving Resident ten (/0)

Jays wniten nouce to ether (a) Require Resident to pay for all electricity consumed in the Apartment exher directly to the utility company providing such

clectncity or by reumbursing Owner for the amount paid by said Owner to said utility company for such electricity so consumed in the Apartment Resident shal

independently contract and pay for all elecaneity consumed in the Aparemem Payment for electricity shal! be made to Owner or said utility company as the vase

may be. by Resident in accordance with monthly statements from the Owner or said utility company, wtuch monthly statements shai! be pad by Resident wiih the

next month's Rent or as stated on the utility company bill. IN THE EVENT OWNER EXERCISES THIS OPTION, THE RENTAL AMOUNTS DUE FROM

RESIDENT FOR EACH MONTH THEREAFTER SHALL BE REDUCED BY AN AMOUNT TO BE DETERMINED BY OWNER AT THE TIME SUCH

OPTION IS EXERCISED or (b) Require electricity be furnished to Resident on a submetered basis. at the expense of Resident Charges for such electncyty in

each month or past thereof shall be computed by muluplying the number of kilowatt hours of electricity used by Resident mes the per kilow ar hour rate pad by

Owner for such month to the utilsty company furrushing such electricity. The bills which you will receive will be sued by Owner. not by ihe public utility

company The records and all electric meters in the Cornmunity shall be presumed to be correct for al! purposes. Charges for such elecincity shail be deemed to

be “Rent” and are payable to Owner on the date stated in the bill, and Resident agrees that his covenant to pay such charges shall be s covenant independeni of

every other covenant of thus Lease. The electric consumpuon for all Common Areas and common facilities will be paid for by Owner Any dispute regarding

the computation of Resident's bill or accuracy of the submetering equipment shall be between Resident and Owner UPON COMMENCEMENT OF THE LEASE

TERM, OWNER ELECTS TO EXERCISE EITHER OPTION (a) OR (6) AS INDICATED ON PAGE ONE OF THIS LEASE In the event Owner elects to change

the opvon referenced on page one of this Lease ai any ume during the Lease Term or extensions or renewals thereof the opmon shall become effect) ve on ihe firs:

day of the nonth next following the expuranon of the ten (/0) day notice period The amount of the reducnon wil! remain constant (hroughou! the remainder o! ihe

Lease Term and can be adjusted by Owner upon any renewals or extensions thereof Resident shal) have the nght to make an examination of (he Owners utility bells

for the Community for the purpose of verifying the accuracy of any statement furnished by Owner to Resident Such examination shall be made and compleied

within fifteen (| $) days after the statement with respect to which such exarnination pertains has been furnished to Resident. and shal! be made at such limes ane such

Gays as are reasonably convement to Owner. after three (3) days written nonce to Owner requesting such exarrunaon Owner further reserves (he nghi at any lime

dunng the terms hereof. or any extensions or renewals thereof, to elect by giving Resident ten (| 0) days notice in writing of such election 10 require Resideni io pay

'o Owner, as additional rent, Resident's Provata Share (as hereunafter defined) of al) water and gas consumed af the Community dunng each month or pornion of

a month dunng the Lease Term Owner shall bill Resident monthly of Resident's Prorata Share of such water and gas costs for the prior month. which shal! be pard

by Resident with the next month's Rem Resident's Prorats Share of such water and gas shall be adjusted for any partial month or occupancy on a per diem basis

Resident s Prorata Share shall be determined by the cost of al] water and gas consumed a the Comynuniry (less (he cosis of waier and gas alinbuiebdle

to the Comsnon Areas) by « fraction, the numerator of shall be the number of square feet in the Apartment and the denormnator of which shall be ihe (otal

number of square feet in all the apartments in the Community It is hereby agreed and understood tha: Resideni's Prorata Share shall be (he percentage as

referenced on page one of this Lease of the cost of all water and gas consumed at the Community IN THE EVENT OWNER EXERCISES THIS OPTION. THE

RENTAL AMOUNTS DUE FROM RESIDENT POR EACH MONTH THERBAPTER SHALL BE REDUCED BY AN AMOUNT TO BE DETERMINED BY

OWNER AT THE TIME SUCH OPTION IS EXERCISED. Owner has not, and cannot represent, warrant or covenant that the cleciicily rates now in cxisience

shall continue in the furure Owner and Resident specifically agree that the responsibility of Resident to pay for electricity shal! be unaffected by any rate

increase and/or reclassification of Owner from one rate casegory to another cate category Residen''s fulure io pay any electrc. water or gas bil! shal! consiiute

2 matenal violation of this Lease The amount of any unpaid electric, water, or gas bill may be charged by Owner against Resideni’s Secunty Depos Residents

will not aliow electncity ic be disconnected by any means. including the non-payment of bill, until the end of the Lease Term or renewal or extension penod

Changes or the installanon of utility ines, meters submetering or load management systems. and sirrular electrical equipmeni serving (he Apartmeni shal! be

the exclusive nght of Owner. provided such work ws done in s reasonable manner and does not increase resident's utility costs

THE APARTMENT WILL BE OCCUPIED ONLY BY THE ADULTS AND MINORS SPECIFIED ON PAGE ONE OF THIS LEASE Those other than

Resident will be referred to as “Occupants” Residem shall not sublet or assign the Lease and any emer 10 do 90 without the pro: wnmen consent of Owner shal!

be vord Pro written consent of Owner it necessary in order to changes Roommams. [FP ROOMMATES ARE CHANGED WITHOUT THIS CONSENT THE

OLD ROOMMATE WILL REMAIN LIABLE FOR ANY DEFAULT INCLUDING THE PAYMENT OF RENT. BY THE NEW ROOMMATE

MULTIPLE RESIDENTS in the event more than one resident signs the Lease, cach Resident is jointly and severally liable for al! surns due under ihe Lease

The amount of any refund will be calculated without regard to who paid the Security Deposit and without regard to whose conduct resulted in any deductions

a\ as

Read and accepted —

tnere(rom Secumty Deposus are collectes .ur and remutted to the Owner by Lincoln Property Company. therefore. are a debt of Owner Secumty Dx posiis arc

sot necessamly held im wust by Owner The Security Deposit shai! be paid by the residents in the amnounts set forth on page one of this Lease Any retund of ihe

Secunty Deposit due hereunder will Be paid in proportion to the amounts paid as reflected on page one of this Lease in the event of more than one residem and shai.

be made by one check jountly payable to all Residents

EARLY TERMINATION Resident may terrrunate the lease prior to the expiration of the lease term only based upon e job transfer of resident to 2 differen

geographic area, provided that resident provides landiord with verification of job wansfer from employer a ihe ume novice 15 BivEN. and provided (Mai resideni 6

not in default hereunder at the ame of giving notice, and agrees to strictly comply with the following terms (a) To give Owner 45 days wmuen nowce (0) 10 pay

Owner all monies due through the date of termination, (¢) (0 pay 4m amount set forth on page one of (his Lease. as consideration for early termination und (u)

(> pay a prorated poruon whuch shall Be included in the early termination fee, for make-ready capenses. such as sharnpooing carpet repaniing and cleaning hased

on ihe rave of the number of months remaining in the insal term to the number of months in the onginal Lease Term The foregoing shal! nor release Kes ic

ch any responsidilines and obligavons regarding damage to the Aparunent.

RESIDENT ACCEPTANCE Withun forty-eight hours of receipt of a Move-in Condition Form (MIC), anached hereto as Exhibu “B™ and made a pan hereo!

Resident agrees to report to Owner in wrung any such discrepancies between the informauon descnbed in the MIC and the actual conduion of (he apaninen:

Owner shall then amend such form to correct such discrepancies Resident's failure to report any defects or problems with the Apariment in ening wiihen such

Lome is and shall De @ binding admission of the accuracy of such form Any such wrinen report from Resideni is not and shall mor consinule a wniien reques! fur

reparrs wrthen the meaning of Paragraph 15 OWNER MAKES NO IMPLIED WARRANTIES IN PARTICULAR. OWNER DISCLAIMS AND Ex

CLUDES ANY WARRANTY THAT THE PREMISES AND [TS CONTENTS ARE PIT FOR ANY PARTICULAR PURPOSE OR ARE MERCHANTABLE

Owner sll ininaily furnseh ght Dulbe for the Apartment, thereafter, light Dulbe will be replaced by Resident a Residents expense Resideni accems ihe

Aparl nent subsect (0 any existing oF future recorded mortgage, deed of trust, or other lien applicable to the Apartment or 1s coments The Apartment and ai! ore:

areas w Mich are reserved for Resident's private use shail be kept reasonably clean and sanitary by Residem No aitersuons improvements painting installations of

antenna. telephone, computer, cable television outlets or dryer outlets will be permitted without the pnor wnmen consent of Owner Resident may not change

shower head devices place water furniture, washers, dryers or similar appliances in the Apartment or otherwise alter the Apartment. 1s contents. {ixtures ur

equipment of the Comymunity without the pnor wnmen consent of Owner. A reasonable number of small holes in sheewock wails and in (he grooves of wood

paneling will be allowed to hang pictures Resident shai) not duplicate keys to the Aparument or remove Owner's fixtures, equipmeni. secunty devices elecironi

am) system. furniture or furnishungs from the Apartment for any reason Upon the termunanon of the Lease for whatever cause. Residen( covenanis and agrees

‘o promptly and peacefully vacate and surrender possession of the Apartment to Owner and prompily and peacefully se-render and deliver io Owne: all of ihe

personal property belonging to Owner, including. but not lumuted to, all those items of furniture and furnishings, if any, listeo on Exhibu “A in the same cond:ivon

as when received. except for reasonable wear and tear

NOTICE REQUIREMENT Ali nouces by Residents to Owner or its representatives including, but not limited, to nonces (a) requesiing the name and address

of Owner or LPC. (0) requesung the installation. change, rekeying or removal of « security device, (c) of maifuncuon of & smoke detector (d) requesiing

_nsiallauon. inspecnon or repair of @ smoke detector or (¢) requesting repairs in accordance with Paragraph |4 hereof shall be in writing and delivered io ihe

‘ocavon where Reni isto De pad All nouces by Owner, its agents and legal representatives to Resident shall be delivered to the Apartment or 10 such other aduress

as Resident may designate by wnten nonce to Owner Uniess otherwise agreed in writing berween Owner and Resident. Owner or is represeniat) ves may give

resident novice by funy affixing same to the Aparunent door

COMMUNITY POLICIES Resident, Occupants, guests, invitees and others present a the Community with Resident's consent shai! comply wrth all «nnen

Community pohcses whuch shall be consic*red part of the Lease and Owner may make policy changes if m wmung and pven to Resident All such polices may

be enforced (nrough Owners agents or legal representauves, and Resident shall hold same harmiess for reasonable enforcement thereof Resideni may noi

operate any (ype of Dusuness or Conduct any commercial activity in or from the Aparument Garbage shall be disposed of only in designated recepiacies Al!

park.ng lols dnveways walkways, landscaped areas. laundry rooms, recreanonal areas, and other areas and facilites available for common use Dy Residenis (ine

Common Areas”) are subject (o Owner's exclusive control Sidewalks, steps, outside hallways, entrances, walkways and stairs shal! not be obsirucied in any way

cused [or any purpose ovher (han ingress or egress Owner may impose such specific restrictions on resident's use of the Common Areas as i deems appropnaie

Dy giving mouce Dy sign lemer or other means to resident, and niolawon of any such restrictions shall be « default by Resident The Cormwnon Areas are 10 be used

HG) ee om oi Ue perun using iem Owner may reguiate or protubu from the Aparunent or Community motorcycies, mopeds. bicycles. inc ycies skateboards:

(over Skares Wampolines exercise equipment recreaponal vehucies, boats, wailer or woperabie vetucies Resident shall noi cause or perm (he display of any

5g Of advertising mamer whuch is visible outnde the Apartment or is on the Common Areas or otherwise in the Community, without the Owners pnor wniien

consent Owner reserves (he mgt to control the entry upon the Community by Resident's guests. agen. licensees oF invitees. furmiure movers. delivery persons

so. LOrs andor salespeople Owner may protubs from the Apartment or Community guests or nvuees who, in Owners reasonable judgment have been

CO sturbing (ne peace disturbing other residenu. or violsanng Comraunity policies. Remdent, Occupants. guests. invuees and others present at (he Comununity wiih

Residents consent shall not be dasorderiy, bowierous or unlawful, or disturb the peace or the nghts and pnvuleges of other residenis. or perm! any unlawful

2.U¥IUES OF amy act or pracnte whuch will uyure the reputanon of the community. ln the event Resident violates any law or Community policy, Resideni shall be

subyect to the remedies provided for um Paragraph |9 herein.

LIABLLITY OWNER AND OWNER’S REPRESENTATIVES WILL NOT BE LIABLE POR DEATH OR LOSSES OR DAMAGES TO PERSON OR

PROPERTY OF RESIDENT, RESIDENTS GUESTS OR OCCUPANTS CAUSED BY THEFT. BURGLARY. RAPE, ASSAULT, BATTERY. ARSON. MIS.

CHIEF OR OTHER CRIME, VANDALISM. FIRE, SMOKE, WATER, LIGHTNING, RAIN, FLOOD, WATER LEAKS. HAIL. ICE. SNOW. EXPLOSION.

SONIC BOOM, INTERRUPTION OF UTILITIES, ELECTRICAL SHOCK, DEFECT IN ANY OF THE CONTENTS OF THE APARTMENTS. LATENT

DEFECT IN THE COMMUNITY, ACTS OF GOD. OTHER UNEXPLAINED PHENOMENA. ACTS OF OTHER RESIDENTS OR ANY OTHER CAUSE

OTHER THAN THE GROSS NEGLIGENCE OF OWNER OR ITS REPRESENTATIVES ACTING IN THE COURSE AND SCOPE OF EMPLOYMENT

Residen( wi! indemnify and hold harmiess Owner and Owner's representatives for any liability, including costs and attorneys fees. duc (o death. loss or damage io

“Ne person of property of ressdent, Occupants, guests, invitees or others presen in the Apartment or at the Community with Residents consen from any cause other

‘ha OM ners gross pegligence or that of 1s representatives acting in the course and scope of employment. and from any Labilives ansing as the resull of (he acts of

Resident. Occupants, or others present with Resident's consent. OWNER AND [TS REPRESENTATIVES ARE NOT INSURERS OWNER STRONGLY REC.

OMMENDS THAT RESIDENT SECURE INSURANCE TO PROTECT AGAINST ALL OF THE ABOVE CIRCUMSTANCES Owner shail have no duty

fegading secunty at the Community other chan (o make aecessary repairs to security devices as provided in Paragraph |4 Resident acknowledges (hai Owner is

LOGE! NO ODL gawoM Of duly lo mMEpECt tes OF repau any secunty device unless and unui Owner has rece: ved wren nouce from Resident cacept when ihe Lease

Term beguns and in the case of « smoke detector, when « new detector is installed by Owner RESIDENT UNDERSTANDS THAT OWNER HAS RETAINED AN

!NDEPENDENT COMPANY TO PROVIDE A PATROL SERVICE WHICH IS AVAILABLE FOR DISTURBANCES. FIRE LANE VIOLATIONS. PKOB.

LEMS WITH OUTDOCR LIGHTING AND PROBLEMS OF THAT TYPE. IN THE EVENT OF CRIMINAL ACTIVITY, THE POLICE DEPARTMEN| IS

TO BE CONTACTED FIRST BY RESIDENT RESIDENT AGREES AND UNDERSTANDS THAT THE PATROL SERVICE IS NEITHER A POLICE

FORCE NOR A GUARANTEED DETERRENT TO CRIME Resident undermands and agrees tha: Owner may alter or cancel the pawol service wwthou! hes

snow ledge or consent Further Ressdent understands anc agrees thai Owner h-s a0 obligauon or liability for the actus OF Ormussrons » hei ner neghigen: nic ronal

OF CRE Rw se Of any agent or employes of the pasrol company or of any J ope A ay by Owner RESIDENT UNDERSTANDS THAT

CRIMES AGAINST PERSONS ARE PREVALENT, ESPECIALLY IN APARTMENT COMMUNITIES, and recognizes that Owner and iis legal represen.

‘aves are not insurers Resident understands that Owner and its = Guaranwe. warren oF assure residents peronal secuniy and we

\imwted on thew abulity to provide prow

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