Miller v. Charles E. Smith Management, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JEFFREY L. MILLER, Personal 
Representative of the Estate of
Meredith E. Miller, deceased,
Plaintiff-Appellant,
v.  No. 00-1391
CHARLES E. SMITH MANAGEMENT,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-96-1209-A)
Argued: February 26, 2001
Decided: May 2, 2001
Before WIDENER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Christopher Howard Mitchell, STEIN, MITCHELL &
MEZINES, L.L.P., Washington, D.C., for Appellant. John Henry Car-
stens, JORDAN, COYNE & SAVITS, Fairfax, Virginia, for Appellee.
ON BRIEF: Robert F. Muse, Richard A. Bussey, STEIN, MITCH-
ELL & MEZINES, L.L.P., Washington, D.C.; Michael H. Gottesman,
2 MILLER v. CHARLES E. SMITH MANAGEMENT
GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.,
for Appellant.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This tragic diversity case involves a property manager’s liability in
tort for two allegedly fraudulent statements made to a prospective ten-
ant regarding the safety of an apartment complex. The district court
awarded a directed verdict to the defendant, Charles E. Smith Man-
agement, Inc. ("Smith"), with respect to one such statement, and a
jury found in the defendant’s favor with respect to the other state-
ment. The plaintiff, Jeffrey Miller, as the Personal Representative of
the Estate of Meredith E. Miller (the "Estate"), has challenged both
elements of the adverse judgment. For the reasons set forth below, we
affirm the judgment in its entirety.
I.
In October 1994, a young woman, Meredith Miller, was murdered
in the parking lot of her Arlington, Virginia apartment complex by
two unknown assailants who were attempting to steal her car. Miller’s
father, acting on behalf of her Estate, brought suit in district court
against Smith, the property manager of the apartment complex,
advancing various theories of liability. The Estate alleged, inter alia,
that Smith’s agents made false representations regarding the build-
ing’s safety in order to induce Miller to enter into a lease agreement,
and that such misrepresentations were the proximate cause of her
untimely death.
The district court initially dismissed the Estate’s suit for failure to
state a claim, and the Estate appealed. In an unpublished opinion filed
MILLER v. CHARLES E. SMITH MANAGEMENT 3
on January 26, 1999, we affirmed the dismissal of the Estate’s negli-
gence claim, "declin[ing] to extend the landlord’s liability beyond the
limits set by the Supreme Court of Virginia[.]" See Miller v. Charles
E. Smith Mgmt., Inc., 172 F.3d 863 (4th Cir. 1999) (per curiam). By
that opinion, however, we reversed the dismissal of the Estate’s suit
as to certain of the fraudulent misrepresentation claims. Specifically,
we held that two allegedly false statements made by Smith’s agents
were actionable under Virginia law: first, that if significant criminal
activity ever occurred on or near the premises, Smith would notify its
tenants promptly; and second, that roaming security guards would
constantly patrol the premises. Id. Accordingly, the Estate’s fraudu-
lent misrepresentation claims arising from those statements were
remanded to the district court for further proceedings. Id.*
II.
Upon remand, the district court awarded a directed verdict in
Smith’s favor with respect to the statement concerning roaming secur-
ity guards. Although the Estate produced evidence that only one
unarmed "courtesy patrol" guard was on duty at any given time, the
judge determined "that there was no misrepresentation in that regard."
J.A. 748. The statement may have been misleading — creating the
false impression that more than one security guard would be actively
patrolling the premises at all times — but, the trial judge concluded,
it did not constitute an actionable misrepresentation of fact. A single
remaining fraud claim, arising from Smith’s alleged promise to notify
tenants of criminal activity on the premises, was presented to the jury,
which returned a verdict in favor of Smith. Judgment was entered
upon the jury verdict on March 2, 2000. Identifying numerous errors
purportedly committed by the trial court, the Estate brought this
appeal. We possess jurisdiction pursuant to 28 U.S.C. § 1291.
*The Estate also sought statutory relief under Virginia’s Consumer
Protection Act, Va. Code § 59.1-196 et seq. Although our decision in
1999 remanded this claim along with the fraudulent misrepresentation
claim, the trial judge subsequently granted Smith’s motion for judgment
as a matter of law on this issue. It concluded that because the Act did not
provide for survivor actions, the Estate lacked standing.
4 MILLER v. CHARLES E. SMITH MANAGEMENT
III.
On appeal, the Estate primarily contends that the district court
erred by granting a directed verdict to Smith with respect to its
alleged misrepresentation concerning roaming security guards. The
Estate also catalogues myriad evidentiary rulings and jury instructions
that it regards as erroneous as to the remaining fraudulent misrepre-
sentation claim presented to, and ultimately rejected by, the jury.
Although the specific issues presented for review were briefed
extensively by the parties, we need not address them individually
here. In January 2001, while this appeal was pending, the Supreme
Court of Virginia rendered a decision which essentially compels our
affirmance of the district court in this case. See Yuzefovsky v. St.
John’s Wood Apts., 540 S.E.2d 134 (Va. 2001). Like Miller, the plain-
tiff in Yuzefovsky was assaulted on the premises of his apartment
complex and brought suit against his landlord; Yuzefovsky argued,
inter alia, that his landlord’s assurances that the property was crime-
free and patrolled by police officers constituted actionable fraud. Id.
at 137. Sustaining the defendant’s demurrer, the trial court dismissed
Yuzefovsky’s case with prejudice. On appeal, the Supreme Court of
Virginia initially determined that the agent’s statements were not
mere opinions, but instead constituted actionable statements of fact.
Id. at 142 ("[T]he specific statement that the development was crime-
free, that police officers lived there, and that police vehicles patrolled
the development are not matters of opinion or puffing, especially
when, as is alleged, the employees knew these statements to be objec-
tively false."). The court, however, proceeded to conclude that the
damages resulting from the criminal assault were "too remote" to give
rise to tort liability, stating:
[E]ven if these statements were fraudulent, there was no
causal nexus between the fraud and the subsequent injuries
resulting from the assault by a third party unknown to St.
John’s Wood. St. John’s Wood contend that at best the alle-
gations constitute a claim for fraudulent inducement to enter
into a contract[.] . . . We agree with St. John’s Wood.
* * *
MILLER v. CHARLES E. SMITH MANAGEMENT 5
It is clear that the duty to refrain from making these state-
ments relates to the contract Yuzefovsky was induced to
sign, and not from a common law duty.
Id. (emphasis added).
In rejecting Yuzefovsky’s fraud claim, the Supreme Court of Vir-
ginia noted the substantial time lapse between the false statements and
the assault. We read nothing in the court’s decision to indicate, how-
ever, that the viability of a fraud claim rests on temporal contingen-
cies. That is, the same result presumably would have been reached if,
instead of a year and a half, the plaintiff had lived in the building for
four months prior to the attack. As a federal court exercising diversity
jurisdiction, we are constrained to apply the law of Virginia as it
would be applied by the Supreme Court of Virginia were the case
before it. See Nature Conservancy v. Machipongo Club, Inc., 579
F.2d 873, 875 (4th Cir. 1978) (citing Erie R.R. v. Tompkins, 304 U.S.
64 (1938)). We accordingly conclude that the holding and reasoning
of the Yuzefovsky decision preclude the Estate from recovering under
a fraudulent misrepresentation theory. Quite simply, Yuzefovsky
instructs that the damages resulting from Miller’s October 1994 mur-
der were "too remote" from the June 1994 misrepresentations to give
rise to liability in tort.
IV.
In light of the decision in Yuzefovsky, it is clear that the Estate can-
not prevail in its fraud claim. Even if patently false, the statements
regarding the building’s "roaming security patrol" could not, as a mat-
ter of law, be considered the proximate cause of Meredith Miller’s
death. Thus, we must affirm the district court’s award of a directed
verdict in this regard. Similarly, we must affirm the district court’s
judgment as to the fraud claim resolved by the jury, notwithstanding
any potentially erroneous evidentiary rulings or jury instructions.
Since the Estate’s fraud claim was effectively precluded by Yuze-
fovsky, we need not evaluate the merits of each individual assertion
of error; to the extent that any were committed, such errors must be
considered harmless. Accordingly, we affirm the district court’s judg-
ment in its entirety.
AFFIRMED