NORTH CAROLINA WAKE COUNTY ) ) ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) OAKS AT BRIER CREEK, LLC and ) PENDERGRAPH MANAGEMENT, LLC ) ) Defendants. ) ____________________________________)
IN THE GENERAL COURT OF JUSTICE DISTRICT COURT DIVISION FILE NO.: _________
MIRANDA WILLIAMS, EVELYN BYERS, MARIA LYONS, RODERICK PERRY, CHAUNCEY COLVINS, QUINDORA COLVINS, TANYA SLOAN, ANDREA GOODEN, YOLANDA FARRINGTON, NICOLE HOUSE and DARLENE HUDGINS
COMPLAINT
Plaintiffs Miranda Williams, Evelyn Byers, Maria Lyons, Roderick Perry, Chauncey Colvins, Quindora Colvins, Tonya Sloan, Andrea Gooden, Yolanda Farrington, Nicole House and Darline Hudgins (collectively “Oaks at Brier Creek Plaintiffs”), complaining of the acts of the Defendants, allege and state that: 1.
Plaintiff Miranda Williams is a citizen and resident of Wake County, North
Carolina and resided at 10724 Winter Oak Way #102 in the Oaks of Brier Creek Apartments. 2.
Plaintiff Evelyn Byers is a citizen and resident of Wake County, North Carolina
and resides at 10745 Winter Oak Way # 106 in the Oaks of Brier Creek Apartments. 3.
Plaintiff Maria Lyons is a citizen and resident of Wake County, North Carolina and
resided at 9921 Sweet Oak Drive #103 in the Oaks of Brier Creek Apartments. 4.
Plaintiff Roderick Perry is a citizen and resident of Wake County, North Carolina
and resided at 9921 Sweet Oak Drive #103 in the Oaks of Brier Creek Apartments.
5.
Plaintiff Chauncey Colvins is a citizen and resident of Wake County, North
Carolina and resides at 9921 Sweet Oak Way #202 in the Oaks of Brier Creek Apartments. 6.
Plaintiff Quindora Colvins is a citizen and resident of Wake County, North
Carolina and resided at 9921 Sweet Oak Way #202 in the Oaks of Brier Creek Apartments. 7.
Plaintiff Tanya Sloan is a citizen and resident of Wake County, North Carolina and
resided at 9931 Small Oak Lane # 103 in the Oaks of Brier Creek Apartments. 8.
Plaintiff Andrea Gooden is a citizen and resident of Wake County, North Carolina
and resided at 10745 Winter Oak Way # 108 in the Oaks of Brier Creek Apartments. 9.
Plaintiff Yolanda Farrington is a citizen and resident of Wake County, North
Carolina and resided at 10745 Winter Oak Way # 204 in the Oaks of Brier Creek Apartments. 10.
Plaintiff Nicole House is a citizen and resident of Wake County, North Carolina
and resided at 9930 Small Oak Lane in the Oaks of Brier Creek Apartments. 11.
Plaintiff Darlene Hudgins is a citizen and resident of Wake County, North Carolina
and resided at 10735 Winter Oak Way # 104in the Oaks of Brier Creek Apartments 12.
Defendant Oaks at Brier Creek, LLC, is a limited liability company organized and
existing under the laws of the State of North Carolina and owns the property known as the Oaks at Brier Creek Apartments (“Oaks at Brier Creek”), where the Oaks at Brier Creek. 13.
Pendergraph Management, LLC, (“Pendergraph”) is a limited liability company
organized and existing under the laws of the State of North Carolina and acts a rental agency for the Oaks at Brier Creek, LLC. Upon information and belief, Pendergraph has authority as “agent” to schedule, order, or otherwise have maintenance performed on the Oaks at Brier Creek. 14.
Oaks at Brier Creek Plaintiffs either had or continue to have lease agreements with
the Oaks at Brier Creek as owner and Pendergraph as agent. 15.
Pursuant to the terms of the Lease, Defendants agreed to the following: 2
a.
comply with applicable building and housing codes to the extent required
by such building and housing codes; b.
make all repairs to the Premises as may be necessary to keep the Premises
in a fit and habitable condition; c.
keep all common areas . . . used in conjunction with the Premises in a clean
and safe condition; and d.
promptly repair all facilities and appliances . . . as may be furnished by the
Landlord as part of the Premises, including electrical, plumbing, sanitary, heating, ventilating and air conditioning systems. 16.
Defendants have failed to maintain the Oaks at Brier Creek in compliance with
housing codes and in a fit and habitable condition. 17.
Defendants have failed to maintain the common areas in a clean and safe condition
or promptly make repairs. 18.
Beginning in Winter 2008, Plaintiff Williams notified Defendants of pervasive mold
growth and infestation throughout her apartment. Upon information and belief, the Defendants had been notified or knew prior to Winter 2008 that the Oaks of Brier Creek had extensive mold issues. 19.
Defendants failed to fix the mold issues reported by Plaintiff Williams and other
previous tenants. 20.
In Summer 2009, the residents of the Oaks at Brier Creek experienced extensive
mold growth and infestation that they reported to Defendants. Defendants continued to ignore the cause of the mold and only superficially cleaned the apartments. 21.
Again, the mold returned in the Winter of 2009. Mold grew on furniture, clothing,
shoes, childrens’ toys, and other household items. 3
22.
Defendants failed to make the repairs as required by the Lease and to bring the
Oaks at Brier Creek into compliance with applicable housing and building codes. 23.
Because some of the residents have Section 8 vouchers, the Raleigh Housing
Authority (“RHA”) has inspected the Oaks at Brier Creek. The apartments have failed inspection based on the criteria set forth by the U.S. Department of Housing and Urban Development. 24.
For at least the past two years, Defendants have failed to maintain the Oaks at
Brier Creek in a fit and habitable condition because of continuous mold issues. 25.
For the past two years, Defendants refused to make adequate or, in most cases,
any repairs even though they had been informed of the defects or knew of the defects. 26.
Many of the Plaintiffs continued to pay rent despite the substandard living
conditions for the past two years. 27.
Some of the Plaintiffs and their minor children have suffered illnesses due to the
exposure to the mold. Those Plaintiffs and their minor children have sought medical attention and incurred medical expenses to Defendants’ failure to eradicate the mold problem for the past two years. FIRST CAUSE OF ACTION BREACH OF CONTRACT 28.
The allegations contained in Paragraphs 1 through 27 are reallaged here as if fully
set forth. 29.
Plaintiffs and Defendants entered a contract whereby Defendants agreed to the
following: a.
comply with applicable building and housing codes to the extent required
by such building and housing codes;
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b.
make all repairs to the Premises as may be necessary to keep the Premises
in a fit and habitable condition; c.
keep all common areas . . . used in conjunction with the Premises in a clean
and safe condition; and d.
promptly repair all facilities and appliances . . . as may be furnished by the
Landlord as part of the Premises, including electrical, plumbing, sanitary, heating, ventilating and air conditioning systems. 30.
Defendants breached those obligations after being provided notice by both the
Plaintiffs, other residents of the Oaks at Brier Creek and by RHA. 31.
Defendants have suffered actual and consequential damages based on the breach.
These damages include: a.
damages for past rent abatement
b.
special and consequential damages based on Defendants’ constructive eviction of
Plaintiffs due to Defendants’ failure to make necessary repairs c.
damages to personal property located in the apartments;
d.
damages related to cleaning of personal property
e.
damages related to relocation costs;
f.
past and future medical expenses; and
g.
other damages to shown at trial.
32.
Defendants’ breach has caused damage to the Plaintiffs in an amount in excess of
$10,000.00. SECOND CAUSE OF ACTION BREACH OF IMPLIED WARRANTY OF HABITABILITY
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33.
The allegations contained in Paragraphs 1 through 32 are reallaged here as if fully
set forth. 34.
Defendants provided Plaintiffs with an implied warranty that premises they rented
would be fit and habitable. 35.
Defendants failed to provide fit and habitable rental units to Plaintiffs.
36.
Defendants breached the implied warranty of habitability.
37.
Plaintiffs were damaged in excess of $10,000.00. THIRD CAUSE OF ACTION RENT ABATEMENT UNDER N.C.G.S. ยง 42-42
38.
The allegations contained in Paragraphs 1 through 37 are reallaged here as if fully
set forth. 39.
Plaintiffs entered into a residential rental agreement with Defendants, as defined by
Chapter 42 of the General Statutes. 40.
Defendants failed to provide fit and habitable units to Plaintiffs for the past two
41.
Plaintiffs are entitled to rent abatement under N.C.G.S. 42-42(a) for the past two
42.
Plaintiffs are entitled to rent abatement of over $10,000.00.
years.
years.
FOURTH CAUSE OF ACTION UNFAIR AND DECEPTIVE ACTS AND PRACTICES 43.
The allegations contained in Paragraphs 1 through 42 are reallaged here as if fully
set forth. 44.
Defendants are engaged in commerce as defined by Chapter 75 of the General
Statutes. 6
45.
Defendants engaged in unfair and deceptive practices by entering leases for units
they knew or should have known were unfit and inhabitable due to a continuous mold problem. 46.
Defendants made repeated promises to fix and repair defects in the Oaks at Brier
Creek that made it unfit and uninhabitable. 47.
Defendants continued to accept Plaintiffs’ rental monies without making proper
48.
Defendants placed Plaintiffs in harm’s way by ignoring the mold problem when
repairs.
they knew some of their residents were very young, elderly or had health issues. 49.
Defendants’ action were in and affecting commerce within the State of North
Carolina. 50.
Defendants’ action were unfair and deceptive, which proximately caused damages
to Plaintiffs. 51.
Plaintiffs have been injured in excess of $10,000.00. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray the Court that: 1.
Plainiffs recover judgment against Defendants, jointly and severally, in an amount
in excess of $10,000.00 for compensatory damages; 2.
Plaintiffs recover interest as allowed by law on any judgment obtained against
Defendants; 3.
Plaintiffs recover costs and expenses of this action, including reasonable attorney’s
fees as allowed by law under Chapter 75, from Defendants; 4.
The Court treble damages under Chapter 75;
5.
Plaintiff recover any further relief that the Court deems appropriate.
This the ____ day of April, 2010. 7
LAW OFFICES OF JOHN AUSTIN, PLLC Attorney for Plaintiff Post Office Box 6580 Raleigh, North Carolina 27628 Telephone: (919) 278-7634
________________________________ John S. Austin
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