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Cross v. Brunner

United States District Court, D. Maryland, Southern Division

March 28, 2019

CASHENNA CROSS, et al., Plaintiffs/Counter-Defendants,
v.
LARRY BRUNNER, Defendant/Counter-Plaintiff.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge.

         Cashenna and Mario Cross entered into a contract (“Contract”) on June 12, 2016 to purchase real property located at 127 Coachman Circle, Stafford, Virginia 22554 (the “Property”) from Larry Brunner for $539, 000. Contract 1, ECF No. 2-1. The Contract required closing by August 1, 2016, id. at 2, but when Cashenna Cross inspected the Property on that day, it appeared to her that it was not in the condition that Brunner promised to convey it, and on that basis, she and Mr. Cross did not attend settlement. Compl. ¶¶ 12-19, ECF No. 2. Specifically, the Crosses claim that neither the house nor the pool was clean; repairs to the fence and the roof had not been completed; and in the basement, where the Crosses expected to find the complete wine cellar and wet bar that were advertised and present when Mrs. Cross viewed the Property the month before, she found that the wine rack and some fixtures had been removed. Id.

         The Crosses filed a Complaint against Defendant in the Circuit Court for Prince George's County, claiming breach of contract and fraudulent misrepresentation. Compl. Brunner removed the case to this Court, ECF No. 1, and filed an Answer and Counterclaim, ECF Nos. 12, 12-1. He claimed that he had complied with the Contract and it was the Crosses who breached it, when they did not close on the Property by August 1, 2016. Countercl. ¶¶ 3-4.

         Brunner has filed a Motion for Summary Judgment, ECF No. 23, arguing that he did not breach the Contract and, alternatively, that “any purported breach of the Contract by Mr. Brunner is not material, ” Def.' Mem. 2, ECF No. 24.[1] He seeks judgment in his favor on all counts. Id. at 15. Because genuine disputes exist about Brunner's performance under the Contract and whether it constituted a material breach that excused the Cross's performance, his Motion is denied as to the parties' breach of contract claims. And, considering the complete absence of any discussion of the Crosses' fraudulent misrepresentation claim, his Motion is denied as to that claim as well.

         Factual Background [2]

         At the time the parties entered into the Contract for sale of the Property, Plaintiffs were living abroad: Cashenna Cross was a major in the U.S. Air Force, stationed in Belgium; Mario Cross was also in the service, stationed in Iraq. C. Cross Dep. 12:3-19, 23:3-24:19, 25:17-21, ECF No. 24-11. They familiarized themselves with the Property from an “online advertisement” and “online MLS photographs, ” and Major Cross's “sister Mildred and her friend Juanita” visited the listing. Id. at 24:20 - 25:5, 26:1-4, 32:6 - 33:3, 33:7-12. The promotional brochure stated that “[t]he custom designed basement features a wine cellar” and referred to “the custom wine cellar's treasures, ” ECF No. 24-10, at 6, 7; the online listing similarly advertised that “[t]he owners had the basement custom built with wine cellar, ” as well as stated that the home included a “Wet Bar, ” and additional features included “Wine Cellar, ” “full wet bar, ” and “beer taps.” ECF No. 24-10, at 9, 10. Major Cross informed Defense counsel that “[t]he installation of this personal property as an integrated part of the house was the primary inducement for [Plaintiffs'] decision to purchase the house.” Aug. 8, 2016 Ltr. to Schweitzer, ECF No. 24-10, at 2.

         Nonetheless, the Contract did not explicitly provide for personal property related to the wine cellar and bar to convey. Rather, it stated:

The Property includes the following personal property and fixtures, if existing: built-in heating and central air conditioning equipment, plumbing and lighting fixtures, sump pump, attic and exhaust fans, storm windows, storm doors, screens, installed wall-to-wall carpeting, window shades, blinds, window treatment hardware, smoke and heat detectors, TV antennas, exterior trees and shrubs. Unless otherwise agreed to in writing, all surface or wall mounted electronic components/devices DO NOT convey. If more than one of an item convey, the number of items is noted.

         Contract ¶ 13. It then noted that one “Pool, Equip, & Cover” and one “Refrigerator w/ice maker” conveyed, along with other items not relevant to the parties' dispute. Id. Additionally, it provided that the “[f]ridge in kitchen [would] be replaced with one in Basement.” Id.

         The Contract also stated that Brunner would “deliver the Property free and clear of trash and debris, broom clean and in substantially the same physical condition to be determined as of . . . Date of Home Inspection.” Contract ¶ 10. And, it provided that settlement would be on or before August 1, 2016. Id. at 2. It stated that “TIMES IS OF THE ESSENCE.” Id. ¶ 36. Pursuant to the Contract, if Brunner “fail[ed] to perform or comply with any of the terms and conditions of this Contract or fail[ed] to complete Settlement for any reason other than Default by Buyer, Seller [would] be in Default and Buyer [would] have the right to pursue all legal and equitable remedies, including specific performance and/or damages.” Id. ¶ 29. The Contract stated that it was to be interpreted under Virginia law. Id. ¶ 39.

         A home inspection was conducted on June 15, 2016, while Plaintiffs still were abroad. C. Cross Dep. 49:2-21. In a Home Inspection Contingency Removal Addendum, the parties agreed that Brunner would have “[l]oose section of fence and posts . . . repaired or replaced” by “a contractor licensed to do the type of work required” and “[a]ll damaged roof trusses . . . repaired or replaced by a licensed truss [sic] or qualified company.” Addendum, ECF No. 2-3. The Addendum provided that Brunner would provide “receipts or other written evidence that the repairs have been completed . . . prior to or at Purchaser's final walk through inspection of the Property.” Id. Major Cross first visited the house between July 13 and 20, 2016 to “look[] at the home as it pertained to the MLS, the online advertisement” and “against the contract, [to confirm that] the things that were supposed to be there were there” and that “it equaled the beauty that [Plaintiffs] saw on the MLS”; she then did not return until the final walk through on August 1, 2016. C. Cross Dep. 60:16-18, 62:10-14, 62:21-63:10.

         The Crosses believed that items that conveyed under the Contract included “lighting, wine rack, beer tap, and all other permanently installed items which were not electronic or specifically excluded within the Contract . . . and a functioning pool.” Compl. ¶13. They claim that, at the final walk through, Major Cross found that the refrigerator was not replaced, “the items promised to be conveyed by the Seller were removed, ” the Property was “damaged from fixture removal, unclean, and in disarray, ” and the pool was “in bad condition and damaged.” Id. ¶¶ 14-15, 18. The Crosses also claim that Brunner “did not perform the contracted repairs.” Id. ¶ 12. Because the Property's condition was not as the Crosses believed was contractually required, they did not purchase the Property, instead spending time “in multiple lodging and rooming conditions” before finding a comparable house to purchase for $89, 000 more than the contract price for the Property. Id. ¶¶ 19, 21. After the Contract fell through, Plaintiffs initiated this litigation, in which Brunner's Motion for Summary Judgment currently is pending.

         Standard of Review

         Summary judgment is proper when the moving party demonstrates, through “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials, ” that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). “A disputed fact presents a genuine issue ‘if the evidence is such that a reasonable jury could return a verdict for the non-moving party.'” Cole v. Prince George's Cty., 798 F.Supp.2d 739, 742 (D. Md. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If the party seeking summary judgment demonstrates that there is no evidence to support the ...


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