Shed v. Johnny Coleman Builders, Inc. et al

Filing 51

MEMORANDUM OPINION re 50 Order on Motion for Summary Judgment. Signed by Senior Judge Neal B. Biggers on 8/22/2017. (llw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
CLARENCE SHED

PLAINTIFF

V.

CIVIL ACTION NO. 3:16CV171-NBB-RP

JOHNNY COLEMAN BUILDERS, INC.;
JOHNNY COLEMAN d/b/a
JOHNNY COLEMAN COMPANIES, LLC;
SHERRY MAGGIO FLYNN, and
JOHN DOES 1-10

DEFENDANTS

MEMORANDUM OPINION
This cause comes before the court upon the defendants’ motion for summary judgment.
Upon due consideration of the motion, response, exhibits, and applicable authority, the court is
ready to rule.
Factual and Procedural Background
Plaintiff Clarence Shed filed this diversity jurisdiction action on July 29, 2016, asserting
various negligence, fraud, and breach of contract claims against the defendants arising from an
alleged toxic mold infiltration of the home he briefly rented from defendant Johnny Coleman
Companies, LLC. Shed had entered into a Mississippi residential lease agreement with said
defendant on December 4, 2013, for a property located in the Alex Cove subdivision of
Southaven, Mississippi.
The plaintiff alleges that in January 2014 he discovered that his shoes were covered with
a green substance, but he apparently did not report the issue to the defendants until March 25,
2014, when he contacted defendant Sherry Flynn, an agent of the Coleman defendants, to inform
her that an alleged mold problem had manifested in his master closet and that he was being
treated by a physician because he had allegedly developed symptoms that could be related to

mold exposure. Flynn inspected the residence on the following day. She pulled back the carpet
in the closet and noticed “a little swirl of something green,” a “circular area in the carpet,” water
stains and wet, dark nail tacks underneath the carpet, and a “musty smell” in the bedroom
adjacent to the closet. Noticing wet areas on an exterior wall of the house, Flynn concluded that
the house must have a roof leak caused by hard rain and rainwater coming into the attic. Flynn
scheduled Albert Brooks, a roofer, to inspect the roof the following day. The roofer confirmed
that a water leak was present at the water heater vent in the roof.
The plaintiff arranged for ACCU Check Home Inspection to evaluate the house for mold
on March 28, 2014, and the inspection confirmed an elevated level of mold spores in the master
closet. On April 2, 2014, the plaintiff informed Flynn that he had received the results of the
mold inspection and delivered a copy of the report to her. He later informed Flynn that he could
no longer stay in the house. The lease was terminated on April 6, 2014, and the plaintiff moved
out of the residence.
On April 11, 2014, the plaintiff was treated for a skin rash by Dr. Cheryl D. Winfrey,
who noted a “rash and nonspecific skin eruption” and “exposure to mold.” On April 25, 2014,
the plaintiff was treated by Dr. Joy Carol Burbeck, who diagnosed him with shortness of breath
most likely caused by heavy black mold exposure. The plaintiff was also treated by Dr. Noorain
Akhtar on April 27, 2015. His examination revealed that the plaintiff suffered from a rash on his
lower legs and arms consistent with an allergic reaction to mold.
The plaintiff subsequently filed his complaint asserting claims for breach of contract, bad
faith breach of contract, negligence and gross negligence, fraud and/or negligent

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misrepresentation, tortious breach of implied warranty of habitability, and negligence per se.
The defendants have moved for summary judgment on all claims.
Standard of Review
“The court shall grant summary judgment if the movant shows 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). On a motion for summary judgment, the movant has the initial burden of
showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). If the movant makes such a showing, the burden then shifts to the non-movant to
“go beyond the pleadings and . . . designate specific facts showing that there is a genuine issue
for trial.” Id. at 324. Before finding that no genuine issue for trial exists, the court must first be
satisfied that no rational trier of fact could find for the non-movant. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment, although a useful
device, must be employed cautiously because it is a final adjudication on the merits.” Jackson v.
Cain, 864 F.2d 1235, 1241 (5th Cir. 1989).
Analysis
The defendants argue that the plaintiff has failed to meet his burden of directing the court
to admissible evidence to support the elements of his claims. First, regarding the mold claims,
the defendants note that the plaintiff has not offered any expert opinion attributing the mold
spread to any negligence on the part of the defendants. The defendants contend that without
expert testimony establishing causation, the plaintiff’s claims cannot survive summary judgment.
Second, assuming arguendo the plaintiff could establish causation, the defendants argue that the
plaintiff’s property damage claim is limited by the terms of the contractual agreement he entered

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into with defendant Johnny Coleman Companies, LLC, which contains a liability provision
excluding damages to personal property. The agreement further states that the plaintiff takes the
premises in “as-is” condition.
It is axiomatic that a successful negligence claim requires proof of proximate causation.
“Proximate cause of an injury is that cause which in natural and continuous sequence unbroken
by any efficient intervening cause produces the injury and without which the result would not
have occurred.” Delahoussaye v. Mary Mahoney’s, Inc., 783 So. 2d 666, 671 (Miss. 2001). An
essential element of causation is foreseeability. Id. For a defendant to be liable for an act which
causes an injury, “the act must be of such character, and done in such a situation, that the person
doing it should reasonably have anticipated that some injury to another will probably result
therefrom.” Gulledge v. Shaw, 880 So. 2d 288, 293 (Miss. 2004) (quoting Mauney v. Gulf
Refining Co., 9 So. 2d 780, 780-81 (Miss. 1942)). In the absence of an affirmative causal
connection between an alleged act of negligence and an injury complained of, a negligence claim
necessarily fails. Myrick v. Holifield, 126 So. 2d 508, 511 (Miss. 1961).
In the present case, the defendants are correct in noting that the plaintiff has offered no
expert opinion linking any alleged negligent acts of the defendants to the spread of mold in his
former rental home. The defendants insist that, in a toxic mold case, “the essential proof of
causation must come from plaintiff’s scientific and medical experts.” Daniel J. Penofsky,
Litigating Toxic Mold Cases, 92 Am. Jur. Trials 113 § 101 (2004) (emphasis in original). The
plaintiff acknowledges that he did not identify any experts during discovery but asserts that his
treating physicians can offer expert opinion on causation pursuant to Local Rule 26(a)(2)(D),

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which permits physicians and other lay witnesses to do so if the subject matter on which the
witness is expected to testify has been properly disclosed.
While the cited Local Rule does provide that a treating physician may be called to offer
expert opinions at trial, the plaintiff here has shown only that his treating physicians found his
symptoms consistent with mold exposure. The physicians offer no opinion that the plaintiff’s
alleged injuries were caused by the mold found in the rental home; nor do they offer an opinion
linking a negligent act of the defendants with the presence of the mold or as to whether the levels
of mold found in the home were sufficient to cause the plaintiff’s injuries. Further, the reliability
of a specific causation opinion requires the proffered expert to consider and rule out other likely
causes of the plaintiff’s alleged ailments – in other words, the expert must perform, and the
plaintiff must present to the court, a proper differential diagnosis. See Jenkins v. Slidella, LLC,
2008 WL 2659510, at *4 (E.D. La. June 27, 2008), aff’d, 318 F. App’x 270 (5th Cir. 2009). A
differential diagnosis is “a process of elimination by which medical practitioners determine the
most likely cause of a set of signs or symptoms from a set of possible causes.” Id. (quoting Pick
v. American Medical Systems, Inc., 198 F.3d 241 (5th Cir. 1999)).
The plaintiff’s failure to provide expert testimony on the issue of causation is fatal to his
negligence claims. The Fifth Circuit has held that expert testimony is required to prove that a
toxic substance caused a specific physical injury. See Washington v. Armstrong World
Industries, Inc., 839 F.2d 1121, 1123-24 (5th Cir. 1988) (affirming district court’s grant of
summary judgment where admissible expert testimony was lacking to prove asbestos exposure
caused plaintiff’s injury). In a toxic mold case similar to the case at bar, Smith v. ADT Security
Services, Inc., 2006 U.S. Dist. LEXIS 70109, No. 3:04-cv-104-HTW-JCS (S.D. Miss. Sept. 26,

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2006), the court held that “[i]n order to prevail on his claim for physical injury, plaintiff must
demonstrate by a reasonable medical probability through expert testimony that his alleged
injuries were caused by mold exposure.” Id. (citing Bryant v. Metric Prop. Mgmt., 2004 U.S.
Dist. LEXIS 11214, No. 4:03cv212Y, 2004 WL 1359526, at *7 (N.D. Tex. June 17, 2004)). See
also Roche v. Lincoln Prop. Co., 278 F. Supp. 2d 744, 750 (E.D. Va. 2003) (stating that the lack
of expert testimony is fatal to a plaintiff’s claim for specific physical injury resulting from mold
exposure). As is the case here, the plaintiff in Smith, “[d]espite the inherently technical and
scientific nature of these assertions [regarding mold exposure] . . . offered no expert testimony to
support his claim.” Smith, 2006 U.S. Dist. LEXIS 70109, at *11. Because the plaintiff offered
no expert testimony to support his claim that mold exposure caused him to suffer a number of
medical ailments and emotional distress, the Smith court concluded that he “failed to
demonstrate an essential element of his claim, namely a causal connection between his alleged
physical injuries and his alleged exposure to mold” and accordingly dismissed the plaintiff’s
personal injury and emotional distress claims. Id. at *12.
The Smith court likewise dismissed the plaintiff’s personal property damage claim for the
same reason. The court stated, “In order to prevail on his claim for mold-caused property
damages, plaintiff must offer expert testimony demonstrating that the mold infestation in his
home was caused by the leak in plaintiff’s roof.” Id. at *9-*10. The court again found the
plaintiff’s proof lacking, as the plaintiff offered no expert testimony to support his assertion, and
the court dismissed the claim. Id. at *10.
Like the plaintiff in Smith, the plaintiff in the present case has failed to provide expert
opinion as to the presence of mold in his home, the specific cause of the mold growth, or

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whether the mold in the rental home caused the plaintiff’s alleged injuries – much less expert
opinion attributing the mold growth to any of the defendants’ negligence. As the requisite
causation elements of his physical injury and property damage claims are completely lacking,
these claims must be dismissed. “A complete failure of proof on an essential element renders all
other facts immaterial because there is no longer a genuine issue of material fact.” Washington,
839 F.2d at 1122.
The plaintiff’s response to the defendants’ motion for summary judgment did not address
why the defendants are not entitled to summary judgment with respect to the plaintiff’s fraud and
negligent misrepresentation claims or to the claims for individual liability. A plaintiff’s failure
to pursue claims beyond the complaint suggests that he has abandoned them. See Black v. N.
Panola Sch. Dist., 461 F.3d 584, 588, n.1 (5th Cir. 2006) (finding that a plaintiff’s failure to
defend a claim in her response to the defendant’s dispositive motion constituted abandonment of
the claim).
Even if the claims have not been abandoned, however, they must nevertheless be
dismissed. To establish a fraud claim, the plaintiff must prove by clear and convincing evidence:
(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge
of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by
the person and in the manner reasonably contemplated; (6) the hearer’s ignorance
of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his
consequent and proximate injury.
The plaintiff here cannot show that the defendants made a false representation to him, as the
lease agreement at issue contains the following provision negating any such assertion:
14. CONDITION OF LEASED PREMISES: Tenant hereby acknowledges
that Tenant has examined the leased premises prior to signing this Lease or
knowingly waived said examination. Tenant acknowledges that Tenant has
not relied on any representations made by Landlord or Landlord’s agents
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regarding the conditions of the leased premises and that Tenant takes
premises in its AS-IS condition with no express or implied warranties or
representations beyond those contained herein or required by Mississippi
law.
In Mississippi, “where parties to a transaction finally reduce its terms to an executed writing, all
negotiations and previous understandings are merged into the writings and the terms of the
writing will control.” Rosson v. McFarland, 962 So. 2d 1279, 1286 (Miss. 2007). Further, the
plaintiff has shown no evidence that the defendants had knowledge of the roof leak or the
presence of mold prior to the plaintiff’s reporting the matter to the defendants. It is clear the
plaintiff cannot establish a fraud claim against these defendants.
To establish a claim for negligent misrepresentation, the plaintiff must show:
(1) a misrepresentation or omission of a fact; (2) that the representation or omission is
material or significant; (3) that the defendant failed to exercise that degree of diligence
and expertise the public is entitled to expect of it; (4) that the plaintiff reasonably relied
on the defendant's representations; and (5) that the plaintiff suffered damages as a direct
and proximate result of his reasonable reliance.
Skrmetta v. Bayview Yacht Club, Inc., 806 So. 2d 1120, 1124 (Miss. 2002). Like the fraud claim,
this claim fails because the lease agreement provides that no representations were made by the
defendants or relied upon by the plaintiff. Further, the court has already determined that the
plaintiff is unable to establish the fifth element of this claim – that the plaintiff suffered damages
as a direct and proximate result of his reliance on the defendants’ alleged misrepresentation, as
the plaintiff has provided no expert testimony attributing his alleged ailments to mold exposure
to the defendants.
As to the plaintiff’s claims against the individual defendants, the plaintiff has failed to
provide proof that Sherry Flynn or Johnny Coleman acted in any capacity other than as that of an
agent, officer, or employee of the corporation. In Mississippi, “[i]ndividual liability of corporate
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officers or directors may not be predicated merely on their connection to the corporation but
must have as their foundation individual wrongdoing.” Turner v. Wilson, 620 So. 2d 545, 548
(Miss. 1993). The plaintiff has shown no individual wrongdoing on the part of either defendant,
and these claims will be dismissed.
The plaintiff has also failed to show genuine issues of material fact related to his
contractual claims. In addition to the provision quoted above, other relevant provisions of the
lease agreement state as follows:
13. TENANT INSURANCE: Landlord shall not be liable to Tenant,
Tenant’s family, or Tenant’s invitees, licensees, and/or guests for damages
not proximately caused by Landlord or Landlord’s tenants. Landlord will
not compensate Tenant or anyone else for damages proximately caused by
any other source whatsoever, or by Acts of God, and Tenant is strongly
encouraged to independently purchase insurance to protect Tenant, Tenant’s
family, Tenant’s invitees, licensees, and/or guests and all personal property
on the leased premises and/or in any common area from any and all
damages.
***
19. DELAY IN REPAIRS: Tenant agrees that if any repairs to be made by
Landlord are delayed by reasons beyond Landlord’s control, there shall be no
effect on the obligations of the Tenant under this Lease.
It is undisputed that the leak in the plaintiff’s roof was caused by a hard rain. The lease
agreement specifically excludes “Acts of God” and also provides that the tenant has made his
own examination of the premises prior to entering the lease or has waived the same. The lease
also provides that no delay in repairs shall affect the obligations of the tenant. The defendants
have provided uncontradicted evidence that the property was repaired by March 31, 2014, after
first reports of a problem on March 25, 2014. The plaintiff has shown no evidence of a breach of
contract on the part of the defendants.

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The plaintiff also brings a claim for breach of the implied warranty of habitability.
Mississippi recognizes an implied warranty of habitability for residential leases. Under this
implied warranty, a landlord owes a duty “to use reasonable care to provide safe premises at the
inception of the lease.” O’Cain v. Harvey Freeman & Sons, 603 So. 2d 824, 833 (Miss. 1991)
(Sullivan, J., concurring). In Sweatt v. Murphy, 733 So. 2d 207, 210 (Miss. 1999), however, the
court held that the warranty does not create negligence per se for housing code violations and
that it can be expressly waived by the tenant. As noted above, the lease provided that no
representations were made and that the plaintiff made his own inspection or waived the same.
The court finds that the plaintiff’s claim for breach of the implied warranty of habitability and
negligence per se fail along with the rest of his claims.
Conclusion
For the foregoing reasons, the court finds that the plaintiff has presented no genuine
issues of material fact, and the defendants are entitled to judgment as a matter of law. A separate
order in accord with this opinion shall issue this day.
This, the 22nd day of August, 2017.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE

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