Builder wins NoVa ‘noise complaint’ suit

A builder’s promise of “airport quality” noise control for a new condominium built on a busy highway in Alexandria did not support a lawsuit filed by a buyer disturbed by noise from traffic and from his upstairs neighbor.

The buyer heard assurances, but an Alexandria federal court said statements by the buyer’s agent fell beyond the line for sales “puffery.”

Defendant Pulte Home Corporation, a Michigan company, advertised “luxury” condominiums in the Potomac Yard development in Alexandria.

Plaintiff Patrick M. Devine and his wife first looked at a model unit in 2012, but were told it was not available for sale. The couple next expressed an interest in properties along Main Line Boulevard, but learned no more units were available at that address.

A sales agent said the next wave of construction included units on Route 1, the Jefferson Davis Highway, one block west of Main Line Boulevard. Devine initially was uninterested because of concerns about traffic noise on Route 1. He said the sales agent confirmed to him that the units would be of “airport quality” in blocking out traffic noise.

Devine signed a contract for a three-bedroom lower-level condominium unit to be built at 2211 Jefferson Davis Highway. The condo was completed and after a final walk-through, Devine bought the unit for $560,105, according to his complaint in Devine v. Pulte Home Corp. (VLW 015-3-601).

In that complaint, Devine alleged that as soon as he and his wife moved into the unit, they could hear traffic noise and conversations of passersby from Route 1 while inside the condominium. He contended he and his wife had difficulty sleeping in either of the unit’s upstairs bedrooms overlooking Route 1.

A few weeks later, when another couple moved into the unit above Devine’s, he said he could hear someone walking on the floor above him every night about 11:00 p.m., while Devine was in his master bedroom watching television.

Devine complained first to Pulte’s construction manager, and then to its warranty service manager, and both managers said the unit had been tested for sound and had passed the pertinent test. Devine sued Pulte in state court for fraud and violation of the Virginia Consumer Protection Act. Pulte removed the suit to Alexandria federal court.

Devine said Pulte had fraudulently induced him to purchase the condo with assurances that the condominium would be “luxurious,” with “airport quality” soundproofing for noise abatement.

Calling a condominium “luxurious” is “classic puffery,” and an expression of opinion cannot support a fraud claim, said U.S. District Judge James C. Cacheris in his Dec. 4 opinion. When a statement has involved only subjective value judgments, it generally has been regarded as an opinion or “puffery,” he said.

“What one person considers substantial or serious is often considered flimsy or minimal by another,” the judge wrote.

But the statement that the soundproofing would be of “airport quality” is less clear cut, the court said.

According to the contract, the seller had to construct the units to comply with the minimum requirements of the building code for sound transmission, but those standards did not require the units to be soundproof, and the contract said they were not soundproof.

The contract also acknowledged that the home was located near transportation facilities, including Reagan National Airport, active railroad tracks and “major roadways.”

“While the phrase ‘airport quality’ may bring to mind a certain level of soundproofing, it is ultimately no more definite than ‘excellent quality’ or ‘luxurious quality,’” Cacheris wrote.

The agent may have used creative language in describing the soundproofing, but still it was merely a strong and positive expression of opinion, according to the court. Devine had to concede that his unit complied with the applicable building codes for sound transmission, the only factual standard referenced in the parties’ contract.

Devine’s state-law consumer protection claim likewise failed.

Cacheris said the Supreme Court of Virginia recently clarified that a plaintiff need not allege common law fraud to state a VCPA claim. However, he read the state high court’s 2014 decision in Owens v. DRS Automotive Fantomworks Inc. to still require an allegation of a misrepresentation of fact.

Cacheris granted Pulte’s motion for judgment on the pleadings.