# Joint Appendix — Lincoln Property Co. v. Roche > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0055%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 2005 - **Citation:** 546 U.S. 81 ## Text —— - Sur “ cust, t »‘ iLED MAY 1 7 2005 OFFICE OF THE CLERK 7 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) ed 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 i 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 Hl 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) .................. IV 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 Vv 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 2 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 3 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 10/8/02 10/22/02 10/25/02 10/25/02 10/25/02 11/7/02 13 14 19 21 23 4 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 5 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 1/6/03 1/30/03 1/30/03 2/4/03 2/5/03 31 37 38 45 6 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 2/6/03 2/7/03 2/7/03 49 50 51 7 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 2/7/03 2/12/03 2/14/03 2/14/03 2/14/03 2/14/03 52 53 59 67 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 2/21/03 71 75 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) i 5 : | E : TIER crf 4 Pe i lif 3/1003 = 91 3/13/03 95 3/1303 96 3/13/03 97 10 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 3/13/03 3/24/03 3/27/03 100 110 lll 112 116 11 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 3/28/03 4/4/03 4/16/03 117 118 128 139 12 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 13 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 5/2/03 5/5/03 5/6/03 5/8/03 5/9/03 145 146 147 148 149 151 155 14 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 7/25/03 7/25/03 7/25/03 156 157 161 162 163 164 15 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 7/25/03 8/4/03 8/11/03 8/18/03 165 166 170 171 16 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 17 175 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 8/5/04 183 184 185 186 18 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 19 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 20 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 9/9/03 11/19/03 21 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 1/27/04 22 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 23 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 24 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. 26 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 27 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 28 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 29 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 30 “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 31 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 32 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. 33 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 34 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 35 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 36 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 37 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 38 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; 40 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. 41 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. 42 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. 43 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 44 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. 45 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. 46 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., 47 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 48 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. 49 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. 50 119. 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 51 [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. 52 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 53 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. 54 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 55 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 56 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 57 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 58 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. 59 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 60 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, 61 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 62 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 63 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 64 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 65 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; 66 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. 67 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. 68 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 70 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. 71 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. 72 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., 73 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 74 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, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0055%3A09. Public record. Not legal advice.