Virginia Lawyers Weekly VA Lawyers Weekly
A federal court has taken the steam out of a landlord’s allegations that a big box retailer installed a hot water heater improperly by dismissing his claims for breach of contract, negligence and violation of the Virginia Consumer Protection Act, or VCPA.
U.S. District Judge Norman K. Moon of the Western District of Virginia tossed the claims in Liu v. Lowe’s Home Improvement (VLW 023-3-025) almost a year after first denying the retailer’s motion to dismiss.
The retailer allegedly had promised to install a hot water heater “in a good and workmanlike manner,” but the landlord claimed the installation was deficient and flooded the basement.
Virginia Lawyers Weekly reported on Moon’s earlier decision in March 2022.
At the time, the judge wrote that the “plaintiff has not put forward evidence as would create a genuine issue of material fact that there was any damage, injury or loss to plaintiff that was caused by Lowe’s allegedly wrongful conduct.”
Now, however, Moon granted Lowe’s motion, saying the retailer has shown it’s entitled to judgment as a matter of law.
“Viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in his favor, Plaintiff has not put forward evidence as would create a genuine issue of material fact that there was any damage, injury or loss to Plaintiff that was caused by Lowe’s allegedly wrongful conduct,” Moon wrote. “Simply put, there was none.”
‘List of grievances’
“This case is about an installation that went awry,” Moon said in his prior opinion.
In Jie Liu’s telling, “something akin to a comedy of errors” happened when a plumber sent by Lowe’s in August 2020 to install a new water heater in one of his condos allowed water to ‘flow from a pipe connected to the old tank onto the floor, unabated, for minutes.’”
Because Liu believed the installation was so improper that it posed a “life-threatening danger” to his tenants, he argued to stop the plumber from leaving and called police several times.
The plumber left with the floor still soaked with water but returned later to install a new valve. Liu brought his property manager to watch the work this time, claiming that he was concerned the plumber would leave without fixing it.
Moon took stock of Liu’s “list of grievances” against Lowe’s after the installation, “including that he had to make ‘dozens of calls’ to Lowe’s, and that he had to spend an ‘exhausting’ hour trying to clean the house from the plumber’s visit, plus some additional work trying to fix a ‘shoe molding’ on the floor.”
The next month, Liu was able to close on an existing contract to sell the property for $146,000. He then brought several claims against Lowe’s seeking compensatory and punitive damages. Lowe’s moved to dismiss; Liu’s breach of contract, negligence and VCPA claims survived.
Moon said that while the pro se plaintiff’s amended complaint “may be inartfully drafted from a lawyer’s perspective, he has alleged plenty of facts to support several claims” he raised against Lowe’s.
But the judge wasn’t as lenient when Lowe’s moved for summary judgment.
No damages
All three of Liu’s claims required injury or damage caused by Lowe’s allegedly wrongful conduct. Pointing to Liu’s sale of the property, Moon said there was no genuine issue of material fact that Liu suffered an economic loss that was caused by the purportedly improper installation of the hot water heater.
“Plaintiff has claimed that Lowe’s breached its contract with him by not performing the installation in a ‘good and workmanlike manner,’ … but the measure of damages for a breach of contract ‘is the sum that would put [the plaintiff] in the same position, as far as money can do it, as if the contract had been performed.’”
Here, Liu “was in the very same position financially notwithstanding Lowe’s alleged breach, as if their contract had been performed satisfactorily,” the judge wrote. “Indeed, awarding Plaintiff compensation though he suffered no economic loss would place plaintiff in a better position than if the contract had been performed to his satisfaction. The law doesn’t allow that result.”
Moon rejected as conclusory and speculative Liu’s argument that he was damaged by his “hovering idea” of cancelling the sale contract based on his belief that the property was undervalued by $35,000.
Similarly, the judge dismissed Liu’s negligence and VCPA claims, as well as his demand for attorneys’ fees. Finally, Moon said Liu wasn’t entitled to recover damages for “psychological trauma” he claimed to have experienced.
Appeal and sanctions
Liu appealed the dismissal to the 4th U.S. Circuit Court of Appeals on Jan. 30, but the district court retained jurisdiction over the case long enough for Moon to issue one final opinion before striking the case from his docket.
In his Feb. 2 opinion (Liu v. Lowe’s Home Improvement, VLW 023-3-042), Moon addressed the final matter before the court — Lowe’s motion for an order to show cause why Liu shouldn’t be held in contempt or sanctioned.
Sanctions have been brewing since Moon issued a sua sponte order in May 2022 that Liu show cause for why he shouldn’t be sanctioned for trying to bring perjury charges against Lowe’s in violation of Rule 11 of the Federal Rules of Civil Procedure.
Moon took the sanctions under advisement last July. He gave the parties time to supplement their responses, encouraged Liu to get an attorney and said the parties should consider mediation.
Mediation attempts failed. Moon took stock of the numerous “baseless” motions Liu filed against Lowe’s during litigation and the ways in which the court had repeatedly cautioned him.
“Even when warned of possible sanctions — including attorney’s fees and up to dismissal — Plaintiff still has not changed course; his grievances with Lowe’s apparently know no bounds,” Moon wrote. “Plaintiff filed yet further frivolous motions, including one ‘urgent motion’ asking the Court to forbid Lowe’s from ‘all plumbing installation services in the state of Virginia,’ and another baseless motion accusing Lowe’s counsel of perjury and other criminal violations. Given Plaintiff’s repeated violations of Rule 11, notwithstanding warnings to the contrary, the Court finds it appropriate to grant Lowe’s motion for sanctions and to assess upon Plaintiff as a sanction $2,660 in Lowe’s attorney’s fees.”
