Richardson et al v. The Church of God International

Filing 106

MEMORANDUM OPINION AND ORDER denying Defendants Kathy Zaferatos, Jerry Zaferatos and Zaferatos, LLC's 25 MOTION to Dismiss. Signed by Senior Judge David A. Faber on 9/11/2014. (cc: all counsel of record) (arb)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

TERESA RICHARDSON, et al.,
Plaintiffs,
v.

Civil Action No. 1:13-cv-21821

THE CHURCH OF GOD INTERNATIONAL,
et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is defendants’ Kathy Zaferatos,
Jerry Zaferatos, and Zaferatos, LLC (“Zaferatos defendants”)
motion to dismiss (Doc. No. 25).

For the reasons stated herein,

the motion is denied.
On August 14, 2013, plaintiffs Teresa Richardson, Harold
Richardson, and John Stevens filed a complaint in this court
against The Church of God International.

Doc. No. 4.

On

October 16, 2013, plaintiffs filed an amended complaint, adding
additional defendants Pat Armstrong, Lydge Burns, David Harris,
Gene Harris, the Pineville Church of God, Roy Norman Gray, Terry
Smith, Wayne Wicker, Kathy Zaferatos, Jerry Zaferatos, and
Zaferatos, LLC.

Doc. No. 5.

The dispute centers around

plaintiffs’ land sale transaction and tenancy with the Pineville

Church of God. 1

Plaintiffs have asserted violations of civil

rights laws, fraud, breach of contract, and personal injury
resulting from uninhabitable conditions, among other claims.
Relevant to the present motion, plaintiffs allege their
real estate agent Pat Armstrong was employed by Zaferatos, LLC,
and was under the direction and control of Kathy and Jerry
Zaferatos at all times relevant to this action.
3, ¶¶ 8-11.

Doc. No. 5 at

Plaintiffs allege the Zaferatos defendants are

vicariously liable for the actions of their alleged agent,
Armstrong.

Doc. No. 5 at 32-34, ¶¶ 168, 182, 189.

Independently, all of the defendants except Pat Armstrong
filed motions to dismiss.

The majority of these motions

asserted the doctrines of res judicata and collateral estoppel.
Doc. Nos. 23, 27, 29, 33, 43.

By Memorandum Opinion and Order

entered on August 22, 2014, the court granted these motions.
Doc. No. 99.

Not included in the pool of defendants that moved

to dismiss pursuant to res judicata and collateral estoppel were
the Zaferatos defendants.

Rather, they filed a motion to

dismiss contending that Zaferatos, LLC is an improper party and
more generally that the Zaferatos defendants had no involvement
in the transaction underlying this dispute.

1

Doc. No. 25.

A more detailed factual background can be found in this court’s
Memorandum Opinion and Order entered on August 22, 2014. Doc.
No. 99.
2

In support of their motion to dismiss, the Zaferatos
defendants first contend that they are improperly named parties
because “Plaintiffs have incorrectly alleged that Zaferatos, LLC
is doing business as Zaferatos Real Estate.”

Doc. No. 26 at 2.

Second, the Zaferatos defendants contend they should not be held
vicariously liable for Armstrong’s actions because they had
“[no] involvement in or knowledge of Armstrong’s involvement
with the Plaintiffs.”

Doc. No 26 at 3.

The Zaferatos

defendants concede that Armstrong was previously employed by
defendants as an independent contractor, but deny any
allegations claiming Armstrong was an agent of the Zaferatos
defendants at any time during the plaintiffs’ dealings with
Armstrong or the Pineville Church of God.

Id.

Defendants have

attached affidavits of Kathy and Jerry Zaferatos in support of
their motion.

Doc. Nos. 25-1 and 25-2.

In response to the Zaferatos defendants’ contentions,
plaintiffs allege that the Zaferatos defendants must have been
Armstrong’s direct supervisor according to the provisions of the
West Virginia Real Estate Licensing Act, which provides in
pertinent part, “[e]very person holding an associate broker’s or
salesperson’s license under the provisions of this article shall
[] conduct real estate brokerage activities only under the
direct supervision and control of his or her employing broker,
which shall be designated in the license certificate.”
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Doc. No.

57 at 3 (quoting W.Va. Code § 30-40-17).

Plaintiffs also attach

the “Contract to Purchase Real Estate” agreement, signed by
plaintiffs.

Doc. No. 57-1.

That contract contains a “Zaferatos

Real Estate” letterhead, and within the document, Zaferatos Real
Estate is handwritten-in as the broker.

Id. at 1; 2, ¶ 83.

This is the only physical document that directly links the
Zaferatos defendants to the transaction that occurred between
plaintiffs and the Pineville Church of God.

The only other

connection plaintiffs have with the Zaferatos defendants is via
Armstrong who was allegedly acting as a real estate agent
employed by Zaferatos Real Estate.
The arguments raised by the Zaferatos defendants in their
motion to dismiss present factual matters not capable of
resolution on a motion to dismiss.

Further, the court declines

to convert the motion to dismiss into one for summary judgment.
There are two requirements for such a conversion.

First, all

parties must “be given some indication by the court that it is
treating the 12(b)(6) motion as a motion for summary judgment”;
and second, the parties must “be afforded a reasonable
opportunity for discovery.”

Greater Balt. Ctr. for Pregnancy

Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 264,
281 (4th Cir. 2013)(internal quotations and citations omitted).
These requirements are not present here.

As such, the Zaferatos

defendants’ motion to dismiss (Doc. No. 25) is DENIED.
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The Clerk is directed to send a copy of this Memorandum
Opinions and Order to all counsel of record.
IT IS SO ORDERED this 11th day of September, 2014.
Enter:

David A. Faber
Senior United States District Judge

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