Judge denies motions to drop Fort Bragg military housing case, dismisses some defendants
The Fayetteville Observer September 21, 2021
FORT BRAGG, N.C. (Tribune News Service) — After a series of legal motions, a judge agreed last week to dismiss portions of a class action lawsuit alleging poor management of Fort Bragg housing against four defendants, but left intact the legal actions against two others.
The defendants are Corvias Group LLC; Bragg Communities LLC; Corvias Management-Army LLC; Bragg-Picerne Partners LLC; Corvias Military Living LLC; and Corvias Construction LLC.
In his Sept. 13 order, U.S. District Judge James Dever ruled Bragg Communities and Corvias Management are the only landlords under the Residential Rental Agreements Act, because they are the only two named in the Residential Responsibility Guide for providing maintenance services to residents.
Devers wrote that the plaintiffs did not cite specific allegations implicating Bragg-Picerne Partners LLC; Corvias Military Living LLC; and Corvias Construction LLC. Crossing. He agreed to dismiss Residential Rental Agreements Act claims against those defendants, leaving intact the lawsuit against Bragg Communities and Corvias Management.
He also ruled that the plaintiff’s allegation of a breach of contract could be dismissed against all the defendants except Bragg Communities.
Devers wrote that even though Corvias Management was listed as an agent in a resident occupancy agreement, the reference “does not make Corvias Management a party” to the agreement or “liable for Bragg Communities’ alleged breach.”
Four Fort Bragg families filed the lawsuit in June 2020. The soldiers and their spouses are Staff Sgt. Shane Page and Brittany; Spc. Spenser Ganske and Emily; Sgt. 1st Class Christopher Wilkes and Ashley; and Cpl. Timothy Murphy and Katelyn.
The complaint alleges the defendants “conspired to conceal harmful environmental and structural housing defects from unsuspecting service members and their families and failed to comply with applicable building and housing codes” and that they “knowingly leased substandard homes” while “charging grossly excessive rents swallowing up the whole of service members’ basic allowance for housing.”
Attorneys for Corvias and its affiliates have sought to have the case dismissed, stating in legal motions that determining individual claims would require the court to look at the issues at each home to determine what maintenance issues existed, what caused the issues, how long the issues existed, whether the issues affected the home’s habitability if repair work fixed the issues and whether each class member “suffered any damages.”
The Pages started living at a Fort Bragg home on Spear Drive in August 2016 and moved to another home on Baltic Circle in May 2020.
The Ganskes started living at a Fort Bragg home on Castle Drive in September 2018.
The Wilkes family moved into a home in March 2017 on Hirsch Circle and in July 2020 moved to a home off of Viking Court .
The Murphys lived at a home on Galaxy Street from February 2019 to October 2019, before moving off post.
On Oct. 30, 2020, lawyers for the defendants asked the court to strike the allegations in the complaint, stating it does not meet the requirements for class certification.
The defense response states that a class-action complaint would require inquiries of tenants of more than 6,000 homes on Fort Bragg.
“Plaintiffs’ claims all arise out of these individual allegations, and not from any general conduct directed toward the class as a whole,” the response states.
Attorneys filed a Jan. 20 motion on behalf of the defendants seeking to dismiss the case based on requirements for class certification Federal Rule of Civil Procedure 23, which requires the plaintiffs to show that the defendants refused to act on grounds that apply “generally to the class” so that final relief “is appropriate respecting the class as a whole.”
Dever’s Sept. 13 order states that courts generally do not strike class allegations at the pleadings stage and instead allow for discovery before making a certification decision.
“The court has reviewed the amended complaint, the arguments, and the governing law, and the court denies defendants’ motion to strike plaintiffs’ class allegation,” he wrote.
Among the claims, the complaint alleges the defendants leased homes with known problems that caused a “lack of effective moisture and air barriers between exterior cladding and wall cavities in all homes.”
The problems allegedly caused mold, wood rot and other conditions that threatened the health and safety of the plaintiffs, as workers were allegedly instructed to conceal the defects from tenants, the complaint states.
The complaint alleges that when Corvias entered into its lease with Fort Bragg in 2003, its representatives were aware of an environmental baseline survey of lead paint in 1993.
The information about lead-based paint and its hazards was not provided to residents, the complaint alleges.
The complaint alleges the defendants breached contract obligations, made shoddy repairs, kept misleading records and tenants were threatened with punitive damages if they refused to sign new leases.
The complaint alleges the defendants collected “many millions in fees” for construction, development and management of the homes, with maintenance expenses covered by renters’ base housing allowance.
“Documents will show that defendants received iron-clad assurances of profit while class plaintiffs lived in slum-like conditions,” the complaint alleges.
The complaint says Page first noticed water damage to his home in September 2016, with Corvias workers allegedly painting over the damage “instead of repairing its cause.”
In the months following, the home was infested with ants, cracks appeared in walls, the heating and air conditioning ventilation system failed, and most calls for repairs were “tardy and insufficient,” the complaint states.
The complaint alleges mold was found in the home by 2018.
The latest court documents filed Sept. 13 state that the defendants eventually relocated the Pages, “classifying the move as rank eligibility move rather than one caused by the home’s maintenance problems.”
When moving into their home on Castle Drive, squirrels were living in the attic of Ganske’s home, with urine soaking through the living room ceiling, the complaint says.
Water intrusion caused mold to grow in the window frame of their daughter’s bedroom.
There was a large crack in the ceiling that extended down the wall, dirty carpet with nails underneath and electrical outlets in the bathroom not working, the complaint states.
The family stated they submitted work orders but did not receive a response for months, until Corvias representatives told them in April 2019 that their work orders were deleted.
Ganske’s wife found the heating and ventilation system was leaking and covered in mold, with water in the closet and a repairman using a vacuum to remove the water, the complaint alleges.
With more mold found in the house, Ganske filed a formal complaint with his command.
Corvias sent a contractor to remove the mold, who showed Ganske’s wife the attic soaked in water and allegedly told her he’d seen similar problems in other homes and was not allowed to tell residents mold was present, the complaint states.
When Wilkes and his family moved into their home, they noticed cracked bricks on the exterior, a sagging floor inside and plumbing problems.
The complaint notes a canceled work order for roof repairs, improper work and a leaking bathroom toilet causing more damage to an already sagging bathroom floor.
In December 2019, the roof and inside ceiling collapsed, as one worker fell through.
The complaint alleges maintenance workers told Wilkes they couldn’t promise another home wouldn’t have similar maintenance problems.
He has filed 33 work orders with Corvias.
The latest legal document states that the defendants eventually relocated the Wilkes family and that they’ve had water damage, potential lead-based paint contamination and numerous problems at their new location on Viking Court.
Court documents state that like the other families, the Murphys noticed water damage, wood rot, mold and had issues with appliances.
It also alleges there was carbon monoxide contamination in the Murphy home, lead-based paint and that certain repair requests for the home were deleted, or “unqualified personnel” were sent for repair work.
Corvias’ attorneys wrote that the plaintiffs are making a series of claims “for diverse and distinct maintenance issues,” which attorneys said cannot be answered without individual inquiries of the “unique circumstance” at each of houses when the plaintiffs lived there
“Proving that one plaintiff’s house had a particular maintenance issue does not prove that the same issue occurred at any other plaintiff’s house during the course of any other plaintiff’s tenancy,” the attorneys wrote.
Attorneys said though each of the plaintiffs claimed they “experienced issues with mold” or “moisture intrusion,” each cited different causes for the issue, with the Wilkes family attributing it to delayed roof repairs after Hurricane Florence and the Ganskes claiming moisture damage after a heating and ventilation system leak.
“Proving that mold existed at one house, during one plaintiff’s tenancy, will do nothing to answer whether mold existed at the next plaintiff’s house, or even in the same house at a different time,” attorneys wrote.
The attorneys denied claims that the plaintiffs engaged in “deceptive conduct” by allegedly counseling or deleting maintenance records and said the plaintiffs would have to prove how they were damaged as a result of the allegations.
Responding to claims that vendors were told not to use the word “mold” around residents when making house repairs, attorneys said in the Jan. 18 motion that claim is an “inflammatory allegation” that would require the court to conduct a “fact-extensive inquiry” to determine whether each class member relied on the alleged statements “to his or her detriment.”
In the latest motion filed earlier this year, Corvias attorneys continued to seek , dismissal of the case because they believe Fort Bragg is a federal enclave.
Federal enclaves are territories — such as military installations — where the state gives jurisdiction to the federal government.
Dever’s order states that the court does not need to address the federal enclave doctrine, because the parties’ residential occupancy agreements “contain a choice-of-law provision. “ The agreement states that it will be governed by the laws “of the state which the home is located” and that “the courts of such state have jurisdiction over the name.”
“The plain text of this unqualified phrase means that the parties intended that North Carolina laws generally applicable to leased premises would also apply to the leased premises at issue here,” Dever wrote.
The military families allege that under North Carolina law, Corvias and its affiliates violated the North Carolina Residential Rental Agreements Act, North Carolina Unfair and Deceptive Trade Practices Act and Residential Lead-Based Paint Hazard Reduction Act of 1992.
Dever denied the defendant’s motion to dismiss the lead paint claim, stating that the 1992 act requires lessors to disclose to lessees “any known lead-based paint, or any known lead-based paint hazards,” and that Environmental Protection Agency regulations also require the disclosure.
The defendants argued that the residential occupancy agreements contained the disclosures, but the military families alleged the defendants failed to disclose the presence of the lead-based paint and its hazards before the agreements were signed.
Dever wrote that the 1992 act and disclosure rule requires lessors to “affirmatively to disclose the presence of any known lead-based paint and lead-based paint hazards in homes built before 1978, not merely to make reports and records regarding those homes available to lessees.”
Dever denied the defendant’s motion to dismiss the military families’ Unfair and Deceptive Trade Practices Act claim.
Citing prior case law, he wrote that the plaintiff does not have to “show fraud, bad faith, deliberate or knowing acts of deception, or actual deception,” but “must show that the acts complained of possessed the tendency or capacity to mislead, or created the likelihood of deception.”
Dever wrote that the plaintiffs alleged the defendants “used deceptive marketing practices to entice customers, manipulated customer survey and service and repair records and misrepresented what repairs were needed to properly fix problems and whether they had made those repairs.
“Taken as true, this misrepresentation is especially unscrupulous and deceptive,” Dever wrote, adding that the defendants allegedly never showed one of the plaintiffs the home until after a lease was signed.
Dever also dismissed the defendants’ motion to dismiss the military families’ nuisance and negligence claims.
The test for gross negligence, he wrote, is “purposeful conduct and disregard for the safety of others” and the military families “plausibly alleged” the defendant’s “conduct was intentional and disregarded plaintiffs’ safety...”
Despite the defendant’s arguing that a tenant cannot make a nuisance against his or her landlord and that a private nuisance claim exists when a resident makes improper use of his or her property in a way that injures their neighbor, Dever wrote that in North Carolina, a tenant’s possessory interest is “a sufficient property interest to maintain a claim in nuisance.”.
“Moreover, nuisance claims are not limited to nuisances created by one’s neighbors,” he wrote.
In a Sept. 15 motion filed on behalf of the Corvias defendants, an attorney for the housing provider requested to extend the time to Oct. 27 to respond to the amended complaint
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