Metz v. McCarthy - Affirmation of District Court Ruling

PUBLISHED UNITED STATES COURT OF AP PEALS FOR THE FOURTH CIRCUIT No. 24 - 1820 CHERYL METZ, Plaintiff - Appellant, v. LAURIE MCCART HY, Defendant - Appellee. Appeal from the United S tates District Court for the Eastern D istrict of Virginia, at Alexandria. Claude M. Hilton, S enior District Judge. (1:24 - cv - 00723 - CMH - WEF) Argued: October 24, 2025 D ecided: February 25, 2026 Before NIEMEYER, GREGORY, and BERNER, Circuit Judges. Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Gregory and Judge Berner joined. ARGUED: Philip Corliss Krone, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellant. Edward Paul Trivette, KALBAUGH, PFUND & MESSERSMITH, P.C., Fairfax, Virginia, for Appellees. ON BRIEF: Alexander Francuzenko, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellant. Rachel S. Feinstein, KALBAUGH, PFUND & MESSERSMITH, P.C., Fairfax, Virginia, for Appellee.

2 NIEMEYER, Circuit Judge: Cheryl Metz and her adult son Dennis Metz rented a residen tial house in Arlington, V ir ginia, from Laurie McCarthy for a term of 12 months. During that term, water appeared to leak through a skylight in the sunroom. After McCarthy was so notified, she and a contractor inspected the skylight and confirmed that it was leaking. But thereafter McCa rthy did nothing to effect a repair. Several months later, a fter it had snowed and rained, Cheryl Metz slipp ed on water that had accumulated under the skylight, suffering serious injuries. She commenced this action against McCarthy in V ir g inia state court, alleging a breach of contract claim in Count I and a common - law negligence claim in Count II. After McCarthy removed the case to fed eral court, invoking diversity ju risdiction under 28 U.S.C. § 13 32, the district court granted McC arthy’ s motion to dismiss the complaint as to the negligence claim and denied it as to the breach of contract claim. In order to create a final ju dgment and appeal it, Metz, with the agreem ent of McCarthy, stipulated to “the voluntary d ismissal” of the breach of contract claim, and Metz then filed a notice of appeal from the district cou rt’ s order dismissing the negligence claim. The voluntary dismissal of the breach of contract claim raised a question of our jurisdiction under Jones v. U.S. Merit Sys tems Pr ot ection B oar d, 103 F.4th 984, 992 – 96 (4th Cir. 2024), and we requested supplemental briefing. A fter assuring ourselves that we have jurisdiction, we a ffirm the district court’ s order dismissing the negligence claim.

3 I Cheryl Metz and Dennis Metz signed their 12 - month lease with McCarthy on February 9, 2021. In Ma rch, Denni s Metz informed McCarthy, as Cheryl Metz’ s comp laint allege d, “that there was an is sue with the skyligh t in the sunroom ... specifically, that there appeared to be a leak.” According to the complaint, some three months later, in late June 2021, McCarthy, together with a contractor, inspected the skylight, and the contractor confirmed that it was leaking. Thereafter, however, McCarthy did nothing to ef fect repair s, despite Dennis Metz ’ s ef forts to have McCarthy “follow up.” On January 9, 2022, after it had sn owed and rained for several days, Cheryl Metz slipped on “an accumulation of water that h ad come from the leak in the Skylight” and sustained injuries to her head, b ack, hips, and shoulder. She sustained a concussion and required physical therapy with resp ect to he r other injuries. Che ry l Metz commenced this action against McCarthy in V irginia state court in two counts. In Count I, she alleged that McCarthy had breached the lease contract “by failing to finish the repairs to the Skylight and by failing to take any other actions to prevent the risks of injury associated with the dangers of the leaking S kylight,” in violation of the V ir ginia Residential Landlord T enant Act. In Cou nt II, she alleged that McCarthy was negligent in undertaking to complete repairs to the skylight but failing to complete the m safely. In particular, she alleged that McCarthy had failed to “take any i nter mediate actions [to make the residence safe] befo re the completion of repairs, su ch as tarping the roof, restricting the area, or taking any action to eliminate or minimize any type of safety risks that could be associated with the leaking Skylight.”

4 McCarthy filed a demurrer to the complaint (the state co urt procedural equivalent of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)) and then removed the case to federal court, invoking diversity jurisdiction under 28 U.S.C. § 1332. T reating the demurrer as a Rule 1 2(b)(6) motion, the district court held th at Metz ’ s complaint failed to state a claim for negligence under V ir g inia law and therefore dismissed Co unt II. T he court explained that, “where a landlord enters leased premises, after delivering possession to the tenant, for the purpose of making repairs, he must use reasonable care in performing the work.” (Quoting O den v. S. Norfolk Redev. & Hous. Auth., 125 S.E.2 d 843, 8 45 (V a. 1962)). I t hel d that Metz’ s complaint failed to state a claim because it “provide[d] no allegations that [McCarthy] or the contractor had any intention to repair the skyligh t when they entered in the prop erty in June 2021[,] [n]o r are there any allegations th at [McCarthy] or the contractor took po sitive acts to begin repairing the sky light while on the premises.” The court concluded that because McCarthy had not undertaken to effect repairs so as to give rise to a claim for negligent repair, Metz c oul d not recover, noting that there is no tort for a negligent inspection. As to the breach of contract claim alleged in Count I, however, the court denied the motion to dismiss, concluding that the complaint appeared to have stated a claim. Following the district court’ s ruling, Metz and McCarthy stipulated to “the voluntary dismissal” of the breach of contract claim in Count I, pursuant to Federal Ru le of Civil Procedure 41(a)(1)(A)(ii). Metz then filed an appeal from the district court’ s order dismissing her negligence claim.

5 Because the voluntary dismissal of the b reach of contract claim in Count I did not indicate whether it was with or without prejudice and therefore had to be take n to be without prejudice, see Fed. R. Civ. P. 41(a)(1)(B) (noting th at “[u]nless the notice or stipulation states otherwise, the dismissal is without prejudice”), we req uested that the parties file supplemental briefs on whether we ha d jurisdiction on appeal, referring the parties to Jones. While McCarthy argue d in her supplemental brief that we l acked jurisdiction, Metz took the oppos ite position, relying on the representation in her supplemental brief “that she has ab andoned the breach of contract claim, with no intent in resurrecting it, for purposes of litig ating only her negligence claim.” II W e begin, as we mu st, by assuring ourselves that we hav e jurisdiction on appeal. In its dismissal order, th e district court dismissed the negligence claim in Count II but d id not dismiss the breach of contract claim in Count I. W ithout more, the dismissal order therefore was not a final appealable order as required by 28 U.S.C. § 1291. See K iviti v. B hatt, 80 F.4th 520, 530 (4th Cir. 2023) (“[A]n order dismissing only one claim in a multi - claim adversary proceeding does no t amount to a final ord er”). A final appealable order is “one which ends the litigation on th e merits and leaves nothing fo r the court to do bu t execute the judgment.’” Jones, 103 F.4th at 992 (quoti ng Catlin v. United States, 324 U.S. 229, 233 (1945)). Recognizing this, and t o enable her appeal, Metz filed a stipulation o f voluntary dismissal with respect to the breach of contract claim in Count I, thereby intendi ng to

6 proceed with on ly her negligence claim, which the district cou rt had dismissed. The stipulation stated: Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), all parties stipulate to the voluntary d ismissal of Plaintiff Cheryl Metz’ s remaining Count I of the Complaint (Breach of Contract), in this matter against Defendant Laurie McCarthy. But this effort was in adequate to make the district court’ s order final and appealable, and an appellate court would therefore have no jurisdictio n. This is because the stipulation Metz filed did not state wh ether the dismissal was with or w ithout prejudice, and, in the absence of that indication, th e stipulation had to be taken to be without prejud ice. See Fed. R. Civ. P. 41(a)(1)(B) (providing that “ [u] nless the notice of stipulation states o therwise, the dismissal is without prejud ice”). Further, a st ipulation of d ismissal of a claim without pr ejud ice does not finally remove that c laim from further con sideration. For example, were Metz to los e her appeal on th e negligence claim, she cou ld potentially refile t he breach of contract claim that was dismissed without prejudice. See Kiviti, 80 F. 4th at 530 (n oting that voluntarily dismissal without prejud ice does not prov ide finality, because “there [is] nothing to stop [a plaintiff] from reinstating” that claim “down the line”). T o create finality, the breach of contract claim would have to have be en dismissed with pr ejudice. T h en, the district court’ s dismissal of the neg ligence claim would become an appealable final judgment. See Jones, 103 F.4th at 99 4 (notin g t hat a court has jurisdiction via manufactured finality if a party’ s dismissal prevents it “from bringing the claim[] ag ain, no matter the outcome of the appeal”).

7 In he r supplemental brief on jurisdiction, Metz recognized the in adequacy o f her voluntar y dismissal to create a f inal judgment and accordingly mad e a representation in he r supplemental brief that she “ha[d ] abandoned the breach of contract claim, with no intent in resurrecting it, for purpo ses of litigating only her negligence claim.” Sh e also affirm ed that this representation would bind her on remand. We agre e that Metz’ s representation is binding and tha t, with that representation, her voluntar y dismissal of her breach of co ntract claim in Count I became ef fectively a dismissal with pr ejudice, so as to create a final judgment as to the o rder dismissing her negligence claim. In reaching this co nclusion, we join the numerous courts that have reached a sim ilar conclusion. See, e.g., Jewish People for the Betterment of W esthampton Beach v. V ill. of W esthampton Beach, 778 F.3 d 390, 394 (2d Cir. 2015) (jurisdiction where plaintiffs had dismissed remaining claim without prejudice but their appellate brief “disclaim[ed] any intent to rev ive the[] dismissed claim”); Erie Cn ty. Retir ees Ass’n v. Cnty. of Erie, 220 F.3d 193, 201 – 02 (3d Cir. 2000) (jurisdiction where party represented on appeal that they we re “ withd rawing with prejudice any . . . claim not disposed of by the district court’ s” summary - judgment order); W esco Ins. v. Roderick Linton Belfance, LLP, 39 F.4th 326, 3 34 (6th Cir. 2022) (jurisdiction where plaintiff “clarified at oral argument that [he] intended to dismiss his []claims ... with prejudice despite the dismissal order ’ s failure to say so”); India Br eweries, Inc. v. Miller Br ewin g Co., 612 F.3d 651, 657 – 58 (7th Cir. 20 10) (jurisdiction where party “managed to wedge thro ugh one of [finality’ s] narrowest holes by un equivocally dismissing its counterclaims with prejudice after we pressed the matter at oral argument”); see also Sprint Nextel Corp. v. W ir eless Buybacks

8 Holdings, LLC, 938 F.3d 1 13, 123 (4th Cir. 2019) (“The parties may stipulate to issues or theories that they are electing not to pursue, provided that their stipulation remains binding on remand” (cleaned up)). Our conclusion, moreove r, was sealed during oral argument with the following exchange: Judge Niemeyer: “Can we agree that there’ s a stipulation that your dismissal was with prejudice?” Mr. Krone (on behalf of Metz): “Y es.” W ith the voluntary dismissal of C ount I with prejudice, only Count II remains in this case, and therefore the district court’ s order dismissing Count II is final and appealable. III W ith respect to the neg ligence claim in Count II that the district court dismissed, Metz contends that the district cou rt misapplied the law to her complaint. Sh e ar gues th at the complaint allege d that h er landlord, McC arthy, hired a contracto r to inspect the skylight and, together with the contractor, entered the leased premises to conduct an inspection. Sh e contends further that McCarthy and the contractor “made a decision as to the timeline of when repairs would be completed, ” and that, f rom those alle gations, it follows that McCarthy had “a duty to take reasonable care in making repairs,” as inspection “is the first step of the repair in many circumstances.” Thu s, she ar gue s, McCarthy failed in her duty of reasonable care by taking “n o . . . intermediate actions before the co mpletion of repairs, such as tarping the roof, o r restricting the area,” and by “select[ing ] a timeline to finish repairs that was unreasonable,” which led to Metz’ s injur ies.

9 The district court, focu sing only o n the allegations in the complaint, as it was required t o do in considering a motion to dismiss for failure to state a claim, concluded that the allegations had failed to state a c laim. The court noted that under V ir g inia law, “a landlord has no duty of care to maintain or repair leased premises when the right o f possession . . . has passed to the lessee,” unless the landlord “enters the leased premises ... for the purpose of making repairs” and fails to “use reasonable ca r e in performing the work.” The complaint, the court concluded, “provide [d ] no allegations that [McCarthy] or the contractor had any intention to repair the sky light when they entered in t he propert y ... [n]or [were] there any allegations that [McCarthy] or the contracto r took positive acts to begin repairing the skyligh t while on the premis e s. ” “ W ithout more, ” th e c ourt concluded, it could not find that McCarthy “ owed a duty of ordinary care to [Metz].” Accordingly, it dismissed the negligence count f or failure to state a clai m. The district court’ s recitation of V ir g inia law is well supported. In V ir ginia, a landlord, with few exceptions that are not applicable here, does not have a common - law duty of care to maintain or repair a premises wh en the right of possession and enjoyment has passed to the lessee. See, e.g., Luedtke v. Phillips, 56 S.E.2d 80, 82 – 83 (V a. 1949). This remains true even if a lease or a statute imposes on the landlord a covenant to maintain or repair the premises. See Stew ar d ex r el. Stewar d v. Holland Fam. Pr ops., LLC, 726 S.E.2d 251, 2 55 (V a. 2012). This is because, under V ir ginia law, a ten ant “takes the premises in whatever condition they may be in, thus assuming all risk of person al injury from defects therein.” T ingler v. Graystone Homes, Inc., 834 S.E. 2d 244, 262 (V a. 2019) (quoting Luedtke, 56 S.E. 2d at 82). Under these principles, it is clear that McCarthy had

10 no to rt duty to affirm atively maintain or repair the skylight while Metz occupied the residence. Nonetheless, V ir ginia does recognize a common - law tort against a landlo rd who undertakes to make repairs and does so negligently. “A landlord who makes repairs to leased property has a common law duty not to make those repairs in a negligent manner and is liable for injuries sustained as a result of negligent repair.” Stewar d, 726 S.E.2 d. at 2 57. Thus, “if the landlord, after h e has delivered possession to th e tenant, enters to make repairs, whether voluntarily or by agreement, he must use reasonable ca r e in making th em. ” Luedtke, 56 S.E.2d at 83. F or Metz to hav e state d a claim, therefore, she must have alleg e d that McCarthy entered the residence to make repairs and then made the repairs in a negligent manner. W e agree with the district court th at Metz’ s complaint does not allege those fact s. First, the complaint does not allege that McCarthy entered the premises for th e purpose of making a r epair. Rather, it alleges only that Dennis Metz info rmed McCarthy that the skylight “appeared to ... leak”; that “McCarthy sent a contractor to inspect the Skylight”; that “McCarthy was present” for th e inspection; and that the con tractor confirmed that the skylight was leaking and needed repair. Th ese allegations do n ot support a plausible claim that McC arthy entered the premises to make rep airs. Moreo ver, the complaint does not alleg e that repairs were eve r undertaken, let alone that McCarthy or the contractor made repairs with positive acts of negligence. Y et, u nder V irginia law, a landlord can be held liable in tort o nly if “ the landlord makes repairs to the leas ehol d premises and, in the proc ess of doing so, creates a dangerous condition by ‘ a po sitive act of negligence

11 on its part. ’ ” T ingler, 834 S.E.2d at 263 (emphasis added) (q uoting Lu edtke, 5 6 S.E.2d at 83); see a lso, e.g., T ugman v. Riverside & Dan River Cotton Mills, 132 S.E. 179, 180 (V a. 1926). T o create liability, the complaint would have to allege that McCarthy or the contractor performed a positive act o f negligence while repairing the skyligh t. Ye t, t he complaint allege d only that the con tractor inspected the skylight and acknowledged that i t leaked and needed rep air. Indeed, the complaint allege d that the skylight “remained unrepaired” as o f the time when Metz slipped on the accumulation of water several months later. It is telling that, when assessing tort liability in th e landlord - tenant context, V irginia courts have emphasized “the distinction between nonfeasance and misfeasance”; a “landlord [can] be liable in tort [only] because of his affirmative wrong in creating a dangerous condition ... in con trast to a mere failure to do something that one has originally promised to do.” T ingler, 834 S.E.2d at 2 63 (cleaned up). Metz’ s complaint d id not allege that McCarthy did anything to create the dangerous condition — he re, the leak — that caused Metz’ s injuries. Indeed, it allege d only that McCarthy and the contractor inspected the skylight and acknowledge d that it was leaking. While Metz m ight wish to seek recovery f or McCarthy’ s fa ilur e to r epair the skylight, tort liability in V irginia does not attach to such nonfeasance in the circumstances of a landlord - tenant relationship. S ee id.; id. at 257 (“ [N] o tort duty arises simply because the landlord fails to make the contractually required repairs irrespective of the fo reseeability of the harm to the tenant”). For these reasons, we affirm the district court’ s order dated July 25, 2024, dismissing Metz’ s negligence claim.

12 AFFIRMED