# Opposition Brief — Craig v. Basheer & Edgemoore

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0530%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1171

## Text

a civil case, but rather, the South Carolina Supreme
Court's retroactive construction of a crimina! statute
which violated the constitutional requirement of
definiteness, and the underlying principle that a person of
ordinary intelligence should be given fair notice that the
contemplated conduct was forbidden by statute made it
criminal to enter onto property after being given fair
netice prohibiting the entry. The Supreme Court
interpreted a trespass statute to apply to both entry onto
land and remaining on the property. It was this
reinterpretation which violated a criminal due process
right, and was the subject of the Supreme Court's
decision. In the case at bar, there is no allegation of a
change in the interpretation of a criminal statute which
would deprive the Petitioners of their due process rights.

The Petitioners also cite Adams v. Robertson, 520
U.S. 83 (1997) for the proposition that this Court could
consider an appeal from a state court decision when there
was a failure to raise a Federal question before the
Alabama Supreme Court. In Adams the Court held that
since the Petitioners failed to establish that they properly
presented the alleged violation of the Fourteenth
Amendment due process clause to the Alabama Supreme
Court, the United States Supreme Court would not reach
the issue presented, and dismissed the Writ of Certiorari
as improvidently granted. When the state's highest court
is silent on a Federal question, it is assumed that the issue
was not properly presented. /d. at 86. The only
exception is when the aggrieved party establishes that
the state court had a “fair opportunity to address the
Federal question that is sought to be presented” to the
United States Supreme Court. Webb v. Webb, 451 U.S.
493, 501 (1981). The Virginia Supreme Court was silent
on any Federal question. The Petitioners have not
attempted to overcome the presumption that the Federal

10

question was not presented to the Virginia Supreme
Court.
None of the cases cited by the Petitioners support
a finding of jurisdiction merely because of a varied
interpretation of a rule of law by a state’s highest court.
For example, in Bush v. Gore, 531 U.S. 98, 115 (2000),
(Renquist, CJ concurring) the opinion did not consider
whether or not the United States Supreme Court had
jurisdiction under 28 U.S.C. § 1257. In Wright v. Georgia,
373 U.S. 284, 289-291 (1963), the alleged violation of the
Fourteenth Amendment was presented at the trial court
and before the Georgia Supreme Court. In N.A.A.C.P. v.
Alabama, 357 U.S. 449, 457-458 (1958), the Federal
questions had been raised to the Supreme Court of
Alabama. In United States v. Lanier, 520, U.S. 259, 266
(1997), the question was presented as to whether there
was a violation of 18 U.S.C. § 242 for criminally violating
the constitutional rights of five women by assaulting
them sexually while the respondent served as a state
judge. The question before the Court was whether or not
there was fair warning or notice of what the law intended.
No issue was raised as to the Court's jurisdiction to
decide Federal questions. Finally, in Marks v. United
States, 430 U.S. 188, 191-192 (1977), there was an appeal
of a conviction of the transporting obscene materials in
violation of Federal law, and a question of the retroactive
application of a new standard for defining pornography.
Again, there was no question raised as to whether or not
the Court had jurisdiction under 28 U.S.C. § 1257.

Cc. The Doctrine Of Partnership By Estoppel
Or Implied Partnership Is Not Applicable
To Tort Actions.

The Petitioners argue that the trial Court and the

ll

Virginia Supreme Court should have considered the
existence of a partnership by estoppel in the Petitioners’
effort to hold additional entities liable on the contract
claims and other claims. In Virginia, the existence of a
partnership by estoppel is controlled by Va. Code § 50-

73.98:

y

If a person, by words or conduct, purports to
be a partner, or consents to being
represented by another as a partner, in a
partnership or with one or more persons not
partners, the purported partner is liable toa
person to whom the representation is made, if
that person, relying on the representation,
enters into a transaction with the actual or
purported partnership. If the representation,

either by the purported partner or by a
person with the purported person's consent,
is made in a public manner, the purported
partner is liable to a person who relies upon
the purported partnership even if the
purported partner is not aware of being held
out as a partner to the claimant. If
partnership liability results, the purported
partner is liable with respect to that liability
as if the purported partner were a partner. If
no partnership liability results, the purported
partner is liable with respect to that liability
jointly and severally with any other person
consenting to the representation.” (emphasis
added.)

The statute is an adaptation of the common law, which
also provided that parties are estopped from denying a
partnership where they hold themselves out as partners

12

and a third party reasonably relies on the representations
to its detriment. “In order for the third person to be
liable as a partner on the ground of estoppel, two things
must be proven: (1) the act of holding out must have been
done either by him or with his consent; and (2) such
holding out must have been known to the party seeking to
avail himself of it and credit given on the faith of it.”
Hobbs v. Bank, 147 Va. 802, 841, 128 S.E. 2d 46 (1926);
Cooper v. Knox, 197 Va. 602, 607, 90 S.E. 2d 844 (1956).
The concept of partnership by estoppel requires an
element of reliance, and there can be no reliance in the
existence of a partnership for tort based allegations.

“The only theory under which a person who is not
a partner in a partnership with other persons can
be held liable as a partner with others to a third
person is on the basis of estoppel, although this
principle of law can only be relied upon by third
parties, by his own conduct, the person who is not
a partner represents himself or allows himself to
be represented to a third person as being a
partner, and the third party relying on such
representation of conduct gives credit to the

supposed partnership... This doctrine of estoppel
in_such cases is not applicable to purely tort
actions, because the third party in such cases is not
injured as a result of any conduct on the part of
the person he is attempting to hold as a partner in
connection with a negligent act on the part of
another person or persons. It can only be used in
connection with a contract or where credit is given
in reliance on such conduct...”

(citations omitted. |

Pruitt v. Fetty, 148 W. Va. 275, 279-280, 134 S.E. 2d 713,

13

716-171 (1964). ‘

Even if the Court were to find a partnership by
estoppel, Diane Cox Basheer Communities, Inc. would
only be liable for the breach of contract and warranty
claims, which have now been dismissed with prejudice.
The Petitioners cannot recover against the alleged
partnership, when the Court has entered a final judgment
against the alleged agent for the partnership. See Santen
v. Tuthill, 265 Va. 492, 578 S.E. 2d 788 (2003); Roughton
Pontiac Corp. v. Alston, 236 Va. 372 S.E. 2d 147 (1988).

The only “partnership” that was alleged did not
include the named seller on the contract. When asked by
the tria! court the allegations a partnership existed,
Petitioners’ counsel pointed to Exhibit B to the Amended
Motion for Judgment. (Tr. p. 15). The seller is not one of
the entities identified in the exhibit as a “partner”. Even
if a partnership existed, the “partnership” was not part of
the sale.

D. The Petitioners Fail To State Any Cause Of
Action Against Defendant Diane Cox Basheer
Communities, Inc.

A Demurrer will be sustained by the Court if a
plaintiff fails to sufficiently plead a cause of action against
a defendant, when all properly pled facts are taken as
true. Wards Equipment, Inc., et.al. v. New Holland
North America, Inc,, 254 Va. 379, 382, 493 S.E. 2d 516,
518 (1997). In considering a demurrer, a court will draw
all inferences from the facts alleged in favor of the non-
moving party, but “a demurrer does not admit the
correctness of the pleader’s conclusions of law.” Id.
Petitioners must allege facts sufficient to state a case of
action. Va. Code § 8.01-273. The record makes it clear
that the Court only looked at the allegations in the

14

Amended Motion for Judgment, and the exhibits thereto.

Despite the fact that the agreement entered into
by the Petitioners states on its face that it is with
Basheer/Edgemoore-Southampton, L.L.C., the
Petitioners attempt to impose liability against Diane Cox
Basheer Communities, Inc. by arguing that the two
entities are members of a general partnership doing
business under the trade name “Basheer & Edgemoore.”
Although Diane Cox Basheer Communities, Inc. is not
mentioned or identified anywhere in the agreement
signed by the Petitioners, the Petitioners allege that the
partnership exists because the entities allegedly hold
themselves out to be a general partnership “in
advertising, marketing, construction, sharing of
employees, sharing of contractor licenses, and prolific use
of the trade name ‘Basheer & Edgemoore’.” (Amended
Motion for Judgment, { 7). Petitioners’ specific
allegations related to documents reviewed after the
contract was signed.’ The Petitioners cannot now claim
reliance on the existence of a partnership they learned
about after the contract was signed.

The contract was for the sale of the property, was
fully endorsed by the Petitioners, and explicitly states in
the first paragraph that the contracting party is “Basheer,
Edgemoore- Southampton, L.L.C.” A limited liability
company in Virginia is an identifiable entity, and its
liabilities and composition are determined by statute.
The Petitioners attempt now to impose liability against a
“partnership” in the face of clear and unambiguous
language to the contrary in the contract. Factual
allegations in pleadings must be disregarded if they “are

*Compare the contract dated May 20, 2000, with the letter allegedly
showing a partnership dated four days later on May 24, 2000.

15

refuted by the terms of the authentic, unambiguous
documents that are a part of the pleadings.” Ward’
Equipment, Inc. et al. v. New Holland North American,
Inc., 254 Va. 379, 384, 493 S.E.2d 516, 519 (1997). The
sales contract was attached to the motion for judgment as
Exhibit 1, and any allegations made by the plaintiff that a
partnership, or any _ entity other _ than
Basheer/Edgemoore- Southampton, L.L.C., was liable on
the contract were refuted by the contract, and should not
be considered. Any documentation or statements made
after the contract was entered into by the Petitioners are
irrelevant. The Petitioners were aware at the time of
contracting that they were purchasing a home from one
entity only; that is, Basheer/Edgemocre- Southampton,
L.L.C.. The Petitioners may not now attempt to change
the clear wording of the contract to impose liability on
uninvolved entities.

There can be no reliance, as a matter of law, on
alleged misrepresentations concerning the identity of a
party to the contact, when the contract expressly
identifies the parties. In Board of Directors of Carrdinal
Place Condominium v. R. Carr Homes Partnership,
et.al., 58 Va. Cir. 602 (2000), Judge Alden of the Fairfax
Circuit Court held that as a matter of law, in granting a
Motion for Summary Judgment, the plaintiff did not
allege misrepresentations as to the identity of the seller,
when the seller was identified in the contract. There
could be no reliance on any misrepresentations or
statements prior. Likewise, there could be no reliance by
the Petitioners here that they entered into a contract
with a non-existent partnership not identified in the
contract.

The Virginia Supreme Court has held that the
term “partnership” itself is not sufficient to establish a
legal partnership or to impose the liabilities of a partner

16

on a second party. In Kennedy v. Mullins, 155 Va. 166,
154 S.E. 568 (1930), the Supreme Court of Virginia stated
that “if the terms of the contract existing between the
parties do not constitute a partnership, none will be
declared, even though the parties in words call the
arrangement one.” /d. at 173,570. Under this precedent,
the fact that correspondence provided to the Petitioners
states in general terms that “Basheer & Edgemoore” is a
partnership with Diane Cox Basheer Communities, Inc.
and Edgemoore Homes is insufficient to impose liability
against Diane Cox Basheer Communities, Inc.

The Petitioners have not alleged that Diane Cox
Basheer Communities, Inc. nor any other entity have
joined together “their money, goods, labor, or skill in a
venture or business, upon an agreement to divide the
gains or losses between them. “ Cooper v. Knox , 197 Va.
602, 607, 90 S.E. 2d 844, 847 (1956). The Court is not
required to accept general legal conclusions pled by a
plaintiff in a motion for judgment. As such, the
Petitioners have not established sufficient factual
allegations to support a finding of a general partnership
between Diane Cox Basheer Communities, Inc. and the
entity that entered into the contract with the Petitioners
for the sale of their home. As there are no direct
allegations against Diane Cox Basheer Communities, Inc.
for any acts taken by that entity, and the Petitioners have
not established sufficient factual support to allege liability
based on a partnership, all counts against Diane Cox
Basheer Communities, Inc. were properly dismissed.

17
E. The Petitioners have not Appealed the Court's

Rulings on Fraud that are not Based on the
Merger Clause

Before the Virginia Supreme Court, the
Petitioners focused their argument on the trial Court’s
ruling on the merger clause. They have ignored the
Court's ruling on the other bases for why the claims for
fraud were dismissed, and have not challenged those
rulings before the Court.

In Counts III through V, the Petitioners claim
actions based on fraudulent inducement, actual fraud and
constructive fraud. In these allegations Diane Cox
Basheer Communities, Inc. is not specifically named.

Counts IV and V are based solely on the
allegations that there was a failure to install a radon
mitigation system as required under the contract. The
allegations in Counts IV and V arise solely from the
breach of contract and cannot support an action in tort.
Richmond Metropolitan Authority v. McDevitt Street
Bovis, Inc., 256 Va. 553, 558, 507 S.E. 2d 344, 347 (1998).

Here, the trial court correctly found that many of
the alleged allegations of fraud did not involve present
statements of fact, but rather involved future
transactions. For example, the Petitioners sued for
failure to build the house of the same quality as the
model, (Amended Motion for Judgment, 4 81), and
because the yard would not be flat. Both reference
future activities. The Petitioners then allege that there
were misrepresentations concerning character, style,
quality and grades. The Court correctly held that these
statements as to quality were not actionable. See Tate v.
Colony House Builders, Inc., 257 Va. 78, 508 S.E. 2d 597
(1999). (statements that a new dwelling house was
competently designed, commensurate with the price, and

18

that the design of the construction was of the highest
quality were puffery and opinion and could not form the
basis for an action for constructive fraud). Similarly, the
Court’s findings that representations of the parties’ rights.
and legal obligations, such as whether or not the contract
could be repudiated, or the parties’ rights under a
warranty, are statements of law, and cannot form the
basis for a claim for fraud. See Giovanni Mortarino v.
Consulting Engineering Services, 251 Va. 289, 467 S.E. 2d
778 (1996) (fraud cannot be predicated on statements of
opinion, and must relate to pre-existing facts, and not
unfulfilled promises or statements as to future events.)

In addition to their allegations concerning future
contractual obligations, the Court found that the merger
clause would apply to these allegations of fraud, and as a
result of the application of the merger clause, no liability
could be imposed. The Petitioners have not cited any
binding authority that the merger clause should not apply
to the facts of this case. Even without the merger clause,
there could be no claim. Breaches of future promises, or
contractual based obligations do not state claims.
Metropolitan Authority v. McDevitt Street Bovis, 256 Va.
553, 507 S.E. 2d 344 (1998).

Petitioners have not challenged the Court’s rulings
concerning Counts IV (Actual Fraud) and V
(Constructive Fraud). These Counts concern the alleged
misrepresentations that a radon remediation system was
installed. The duty to install such a system arose out of
the duties created by the contract. Where the
misrepresentation concerns a duty created by contract,
the remedy is a claim for beach of contract, not fraud. “A
tort action cannot be based solely on negligent breach of
contract.”Richmond Metropolitan Authority v. McDevitt
Street Bovis, 256 Va. 553, 559 307 S.E. 2d 344 (1998).

The decision by the Trial Court was well grounded,

19

based on Virginia law and precedence. The decision by
the Virginia Supreme Court refusing to grant the
Petition for Appeal was also well supported by Virginia
law. Even if the Petitioners are correct, and the Virginia
Supreme Court changed its rule concerning the creation
of a partnership by estoppel, that finding does not allow
the Petitioners to proceed. The underlying torts, upon
which vicarious liability is sought to be imposed have not
been challenged on appeal. Simply finding a partnership
would provide no relief, since there is no valid claim
against any of the partners at this time. Those claims
have all been dismissed.

CONCLUSION

For the above reasons, the Petition for Writ of
Certiorari should be denied.

Respectfully submitted,
Kenneth S. Mahieu, Stephen A. Horvath

MATSON FREYVOGEL Counsel of Record
8200 Greensboro Drive TRICHILO,

Suite 425 BANCROFT, McGAVIN,
McLean, Virginia 22102 HORVATH & JUDKINS,
(703) 448-6600 P.C.

3920 University Drive
Fairfax, Virginia 22030
Telephone: (703) 385-1000
Facsimile: (703) 385-1555

Attorneys for Respondent
Diane Cox Basheer Communities, Inc.

IN THE
Supreme Court of the United States

STEPHEN V. CRAIG AND UN SUN H. CRAIG, PETITIONERS
v.

DIANE COX BASHEER COMMUNITIES, INC.; EDGEMOORE
HOMES, LLC; BASHEER/EDGEMOORE-SOUTHAMPTON,
LLC; BASHEER/EDGEMOORE-WESTHAMPTON, LLC;
AND BASHEER & EDGEMOORE, A VIRGINIA GENERAL
PARTNERSHIP,

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF VIRGINIA

PETITION FOR REHEARING

Stephen V. Craig, Pro se
Un Sun H. Craig, Pro se
7545 Laurel Creek Lane
Springfield, VA 22150-4908
(703) 866-4543

Gueey & TAYLOR © WAGH O.C. @ (202) 223-3160 * UBSCINF o.com

QUESTION PRESENTED

Did the Virginia state courts deny the petitioners due
process of law when they unexpectedly and without fair
warming repudiated the petitioners’ claims that the
respondents, acting in concert, committed fraud and violated
the Virginia Consumer Protection Act in the marketing,
selling and building of the petitioners’ home’?

TABLE OF CONTENTS

QUESTION PRESENTED ......

TABLE OF AUTHORITIES
OPINIONS BELOW

JURISDICTION

RELEVANT PROVISIONS INVOLVED
STATEMENT

ARGUMENT

CONCLUSION

CERTIFICATION

APPENDIX (See Lodging)

Nw

TABLE OF AUTHORITIES

(Cases

Bair Const., INC. V. WEATHERFORD, 485 S.E.2p 137,
ES EE IN Lt BOSE ESS ae 8

Boure Vv. Crry or Cottuma|ta, 378 US. 347, 35441964) ........ 7

CONTRAST KUC/MANSKI V. Gitt.. 302 S.F.2p 48, 5001983)... 8

GeorGct. ROBBERECHT SEAFOOD V. MATILAND Bros. 255
NEE EE ROE AE a PE Ze &.9

LARCHMONT PROPERTIES V. CoOPERMAN, 80 S.E.20) 733.

Se a i a ee ee 8.9
Lioyp Vv. Swi, 142 8. E.2p 363, 365 (1928).........0 8
MILLER V. REYNOLDS, 223 S.E.2p 883, 885(1976)............. 8.9

MORTARINO V. CONSUL1T-ANT ENG'G SERVS.. 467 S.E.2b 778,

A A YO CT Ne) SP RE 7.8
Nic V. KOONS Buick PoNntriac GMC, Inc... 143 F. Supe. 535.

ky Te a ee os BS )
PACKARD NorRrork. INC. Vv. Miter, 95 S.1.2p 207,

ri) |, Se Oe x
PATRICK V. SUMMERS. 369 S.F.2p 162. 164(¢1988)............... 7
SAXBY V. Sou THERN LAND Co.. 63 S.E. 473, 424(1909)...... 7

Soa_e Vv. HeRMAn, 9 S.b.20 459, 464(1940).......... ATE ERIE

iv

SPENCE V. GRIFFIN, 372 S.E.2D $95, 599( 1988)... cece 10

STEVENS V. CLINTWOOD DruG Co., 154 S.E. 515, 518(1930)
PRN SR NS ot ER eee MALE) OMe Ra Mee

TATE V. COLONY HOUSE BuILDERS, 508 S.E.2p 597, 599-601
VCPA. LAMBERT V. DOWNTOWN GARAGE, INC.. 553 S.E.2p
iS SR ce et 10

Warp's Eourp. v. NEW HOLLAND Nortit AM., 493 S.E.2p
$16, 5SI8(VA.1997)...... ES BS. Pan eB OA wow Eee. 5

WILKINS V. PENINSULA MoTror CARs, INC.. 587 S.E.2p S581.
_ + ARR RCSA AB a Opel SO al Pe oe AEP eer Nes )

Statutes

E:xpress Warranty and, the Virginia Consumer Protection Act

(Va. Code Sections 59. | -196 ..........cccccccccsccsssocccssscoeseeees 4.9
SD TUS TOE SR dies cxtncneveninsionnnceimsvesinintepeintnnestii 1,2
Vitae COGS Best SO> TIPO vccccsccccscscssccesessosncosensccscecesesens 3
Viggen Code Section 59. 1-196. ..ccccsccesscovssescecesvseseevcrsesessesees |

Viegeeta Code Section 59. 1-200. .ccsccoscscsccsevcscccvccvvessccscevessoces |

L
OPINIONS BELOW

The relevant Opinions and Orders are contained in the
petitioners’ original petition for certiorari. the denial of which
is the subject of this Petition for Rehearing.

JURISDICTION

The Court denied the petitioners’ original petition for
certiorari on February 21. 2006. This petition for rehearing is
filed within 25 days of this Court's denial of the petition for
certiorari consistent with the provisions of Supreme Court
Rule 44.2.

RELEVANT PROVISIONS INVOLVED
United States Constitution, Amendment XIV, Section

...No state shall make or enforce any law which shall
abridge the privileges or imraunitics of citizens of the
United States: nor shall ary siate deprive any person
of life. liberty, or property, without due process of
law...

Virginia Code Section $9.1-198:

“(Consumer transaction” means:

1. The advertisement, sale. lease. license of offering
for sale. lease or license, of goods or services to be
used primarily for personal. family or household
purposes.

“Cioods” means all real. personal or mixed property.
tangible or intangible...

Virginia Code Section 59.1-200:
Prohibited = Practices.-----A. The = following

2

fraudulent acts or practices committed by a supplier in
connection with a consumer transaction are hereby
declared unlawful:

|. Misrepresenting goods or services as those of
another,

2. Misrepresenting the source, sponsorship, approval,
or certification of goods and services;

8. Advertising goods or services with intent not to sell
them as advertised...

14. Using any other deception, fraud, false pretenses,
false promise. or misrepresentation in connection with

STATEMENT

The facts and procedural history of this case are set out in the
petitioners’ original petition for writ of certiorari, the denial
of which is the subject of this Petition for Rehearing.

ARGUMENT

The Virginia State Courts Denied The Petitioners
Due Process Of Law When They Unexpectedly And
Without Fair Warning Repudiated The Petitioners’
Claims That The Respondents, -cting In Concert, In
Breach of Express Warranty, Committed Frauds, And
Violated The Virginia Consumer Protection Act In The
Marketing, Selling And Building Of The Petitioners’
Hiome.

The petitioners request rehearing of the denial of their
petition for writ of certiorari (PWC) pursuant to Supreme
Court Rule 44.2. This request is made because in their
original petition. the petitioners for the sake of brevity.

3

focused only on the Virginia state courts’ inexplicable and
unexpected repudiation of Virginia Code Section 50-73.98's
language recognizing the liability of a partnership created by
estoppel as denying them due process of law.

However, left unaddressed by the petitioners’ original
petition for writ of certiorari was their further claim that the
Virginia state courts’ denied them due process of law when
they inexplicably and without fair warning ruled that none of
the respondents, while furthering the partnership business,
could be held liable for their Breach of Express Warranty and
violations of the Virginia Consumer Protection Act, and/or
for their fraudulent, actual, and/or constructive fraud when
they fraudulently. willfully. and/or intentionally misled the
petitioners about the cost of house (App. 1a) and the quality
and workmanship of their home, then failed delivering the
quality of home the petitioners paid for (APP.10a-15a) and
failed to install the Radon mitigation system as promised
(App.S5a&5b), affirmatively concealing this fact (App.19-
20;:58-60) from the petitioners knowing how harmful this
may be to any human beings.

B&E also intentionally made misleading statements that
petitioners could not repudiate the agreement after certain
lots were made unavailable to them or when certain models
could not be built; that their lot would be flat and private
when in fact it was sloped and lacked privacy
(App. 16a&17a): that utility lines would be buried when in
fact they were installed above ground; that 1 operated
without a contractor's license (App. 28-30), when it
prematurely delivered the home to the petitioners two months
before it was finished (App. 37).

The petitioners believe that the zbove claims are
important enough to warrant the grant of their Petition
for Rehearing, not just only for them but for other
consumers similarly situated and may make transactions for
construction of their homes, rely on the partnership and other
advertisements made by B&LE: to the public (App. 6a-8a). like
the petitioners.

4

The petitioners paid at least $115,833 more because the
B&E operated the business without license in the public and
the B&E gave incorrect cost to the petitioners. The
petitioners actually signed to the contract to purchase a used
(less than one year old) B&L Ashmont model (the
Alternative) from the home owner for $500,000 on 9 May
2000 (APP. 16a) but offered the price reduction to $495,000
(APP. 3&4) when the petitioners withdrew their contract to
purchase their home from B&E. B&LE also provided incorrect
cost to at least one of their neighbors. The petitioners signed
B&E’s contract on 20 May 2000.

In the first place, the petitioners alleged that the Virginia
general partnership known as the respondent Basheer and
Edgemoore (“B&E”) advertised and marketed itself and its
four other respondent partners as specialists in the
construction, sales and financing of luxury residential homes
in suburban Virginia.. They asserted that B&F violated the
Express Warranty and, the Virginia Consumer Protection Act
(Va. Code Sections 59.1-196 ef seg.) when it intentionally
misrepresented the petitioners’ rights under the llome
Warranty. refused to perform work called for thereunder.
required the petitioners to waive their rights under the
Warranty, refused to repair the petitioners’ listing of defects,
and refused to conduct a final walk-through inspection
without insisting on @ waiver of petitioners’ rights(App. 18-
19:62). The result was a Home Warranty which had no value

Consistent with the Breach of Express Warranty. the
petitioners under Count | ask an award of damages against
B&E and other Defendants, except BAL/Southampton LLC
The petitioners dismissed the case against the LLC duc to
expenses that would occurring for expert witness and trial
including attorney's fee that may cost at least $15,000. but
the Warranty was not worth more than $1,000. and the 1.1.¢
has lack of resources, if any to repair defects, etc
Consistent with the Consumer Protection Act. the petitioners
under Count II asked for an award of damages to compensate
them for the difference in value between the home BA!

§

promised and the home it actually delivered and for the
money they spent in attempting repairs in order to put the
home in the condition BAF represented it would be in at the
time of closing{ App. 20-21). In addition, for each violation of
the Act, they sought an award of the greater of $1,000 or
three times their actual damages incurred together with their
attorney's fees and costs{ App. 21).

in Count Ill, the petitioners relied upon all of these
material misrepresentations by B&E to allege that but for
this fraud, BRE would not have been able to make the
sale( App. 21-24). They sought compensatory damages and
$350,000 in punitive damages from all the respondents for
this fraudulent inducement(App. 24). The petitioners further
claimed in Count 1V and V that all of the respondents
committed actual and/or constructive fraud when they failed
to install a Radon mitigation system as promised and then
concealed this fact from the petitioners with measured Radon
levels four times the maximum allowable safe levels as
established by the EPA(App. 24-28). As a result of B&L's
actual and/or constructive fraud. the petitioners have been
forced to live in a home with unsafe levels of Radon. were
denied the use and enjoyment of a substantial portion of their
home, sustained severe emotional and mental distress,
suffered monetary losses caused by installing a Radon
mitigation system themselves with Mrs. Craig suffering
physical injury in the course of making these repairs as well
as a precancerous growth requiring surgery and a noticeable
loss of hair(App. 26:28:57). They sought compensatory
damages in the amount of $500,000, punitive camages of
$350,000 and their costs. expenses and attorney's fees App.
26.28).

Desprie established law that upon demurrer such
alleyations are taken as true and read with every deference to
the petitioners. Ward's Fquip v New Holland North Am..
493 Sb2d $16. S18 Va.1997), the Virginia courts
inexplicably sustained the demurrers of the respondents to
Count Is allegations of violations of the Consumer

6

Protection Act because the petitioners’ allegations were not
specific enough, disregarding the petitioners’ two lettcrs
(App. |6a &17a) sent to the B&E identifying specific
defects, especially for yard slopes, also provided at least two
inspection reports performed by certified home inspectors
(App. 32a, PWC). The B&E and other respondents also
know the degree of code-violated yard slopes because they
spent over 30 minutes in the petitioners’ yards in the previous
day they made the hearing on the motion. In addition, they
ruled that paragraph 19's merger clause in the agreement bars
relief for fraud since the petitioners acknowledged therein
that they had not relied upon any other representations
outside of the contract. The petitioners were actually relied
on the B&E’s advertisements, their brochures, and their
correspondence before, during, and after signing of the
contract as stated above.

One of the brochures that B& E provided to the
petitioners before and was available during and afler the
signing of the contract states “Basheer & Edgemore is a
Partnership of Diane Cox Basheer Communities and
Edgemoore Slomes, offering over 40 years of experience ...
With over 5,000 homes...” (App. 6a-8a). At least three
letters and one of the envelopes that the B&E sent to the
petitioners also states as “A Partnership of Diane Cox
Basheer Communities And Edgemoore Homes” (App. 3a.
dh, Je).

As for the respondents’ actual and constructive fraud
claims under Counts IV and V, the Virginia courts ruled that
there was no causal connection between the alleged fraud
and the severe emotional and mental distress suffered by
Mrs. Craig in spite of the physical injury she sustained in the
course of making repairs. Mrs. Craig had severe allergic
reactions, a precancerous growth which required surgery. a
persistent cough for almost two years and a noticeable loss of
hair( App. 57) and other problems as stated the above.

In sustaining the demurrers. the Virginia courts have
employed an unforeseen reading of Virginia Consumer

J

Protection Act and their own decisions on fraud and
constructive fraud. This unfair reading of the petitioners’
complaint is “indefensible by reference to the law which had
been expressed prior to the conduct in issue.” Bouie v. City of
Columbia, 378 U.S. 347, 354(1964); and it is so far beyond
what a “lair reading” of the Virginia Consumer Protection
Act and the relevant decisional law would permit as to
constitute a denial of due process of law. /d. at 354-355.

The Fraud Counts. By its home models, advertisements,
correspondence and dealings with the petitioners, B&E in
order to make the sale promised the petitioners before and
after they executed the contract that their home would be
habitable, constructed in a workmanlike manner and free of
defects( App. 53-56:66). Instead, their home was none of
these things. It was unsafely and defectively built; it had
unsafe levels of Radon; and the petitioners have been denied
the use and enjoyment of a substantial portion of their home,
have sustained severe emotional and mental distress, have
suffered monetary losses caused by installing a Radon
mitigation system themselves with Mrs. Craig suffering
physical injury including a precancerous growth requiring
surgery and a noticeable loss of hair (App. 26;28:57-60;64-
65). The petitioners’ expense occurred over $156,149.35 for
attorneys’ fee, home inspection reports, printing jobs, and
filling fees for the Courts, not including repair costs that they
already paid and would occur to reccive justice.

(in Virginia, a misrepresentation, the falsity of which will
afford ground for an action for damages, must be of an
existing fact. and not the mere expression of opinion.
Mortarino v. Consult-ant Eng'g Servs, 467 SL2d 778,
781(1996). Saxby v. Southern Land Co., 63 S$... 423, 424
(1909). Additionally, “fraud must relate to a present or pre-
existing fact. and cannot ordinarily be predicated on
unfulfilled promises or statements as to future events.”
Patrick © Summers, 369 S.L2d- 162, 164(1988) quoting
Sohle v ddeeman, 9 SV2d 459, 464(1940). Llowever. when
B&L through its home models. advertisements, brochures,

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0530%3A3. Public record. Not legal advice.