COURT OF APPEALS OF VIRGINIA
Present: Judges Causey, Raphael and Senior Judge Clements PUBLISHED
Argued at Leesburg, Virginia
CHRISTOPHER O. PARRISH OPINION BY v. Record No. 1687-22-4 JUDGE DORIS HENDERSON CAUSEY MARCH 12, 2024 MIKEYA VANCE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Grace Burke Carroll, Judge
James M. Stewart, Jr., for appellant.
Karen Leiser (The Leiser Law Firm, on brief), for appellee.
Christopher O. Parrish, landlord, appeals the circuit court’s judgment, finding for Mikeya
Vance, tenant, on her tenant’s assertion related to a flea infestation of the rental property. Parrish
argues that the lease entered by the parties placed the responsibility to mitigate flea infestations
on Vance, even if the lease conflicts with the Virginia Residential Landlord Tenant Act
(“VRLTA”). He also asserts that the evidence is insufficient to establish factual conditions
required for recovery under the VRLTA. Lastly, he contends that the circuit court erred in
admitting evidence and violated due process by failing to allow him to “put on his entire case.”
We hold that the VRLTA provides tenants a warranty of habitability that a landlord and tenant
cannot waive by agreement. We also conclude that the evidence is sufficient for Vance to
recover under the VRLTA, the circuit court did not err in admitting evidence, and Parrish’s due
process claim is procedurally barred. Thus, we affirm the circuit court’s judgment. BACKGROUND1
On September 2, 2021, Mikeya Vance and Christopher Parrish entered a lease for a
single-family home located in Alexandria, Virginia. Before Vance took possession of the rental
property, she had a virtual walk through via FaceTime. She described the property as “filthy”
and asked Parrish if he would have the house professionally cleaned. Parrish told her the house
would not be professionally cleaned as he would clean the house himself.
Vance took possession of the property on October 15, 2021, and observed fleas in her bed
that same day. Vance said she left the property temporarily and began staying somewhere else
beginning on October 25, 2021, because she could not live with fleas. She sent an email
notifying Parrish of the fleas that same day.
Parrish said he would have the house treated and instructed Vance to call an
exterminator, Pest Now. He provided the exterminator’s number and told her to set up an
appointment. He told her he would cover $200 of the extermination costs. Pest Now treated the
property on October 28, 2021. Pest Now advised that the property would need “several
treatments.” Although Vance had not been living at the property since October 25, 2021, she
would visit the property “like twice a month.” After the Pest Now treatment on October 28,
Vance still found fleas in her bed and stated that the amount of fleas was the same as before the
treatment.2
1 “We review the evidence in the light most favorable to the prevailing party, in this instance [Vance].” W. Ref. Yorktown, Inc. v. Cnty. of York, 292 Va. 804, 808 (2016). 2 Vance stated that “when [she] would go into the house [she] would walk out with fleas on [her].” Vance said that there were fleas “[b]eside the windowsill in the master bedroom and also in the basement” and “in the second guest bedroom as well.” She testified that there were “several fleas,” and there were “like 50” by the windowsill and that she “couldn’t even capture how many w[ere] in [her] bed.” Vance stated that there were “a lot” of fleas on her person and that “[t]hey ate [her] body pretty bad.” -2- Vance told Parrish about the continued presence of the fleas. Parrish told her that he
would have the property inspected and treated for fleas on either November 11 or 12 of 2021.
That inspection and treatment never happened. Thus, on November 17, 2021, Vance sought to
terminate her lease, but Parrish refused.
During one of her visits to the property, Vance noticed that there was still flea activity.
To try to save her personal property, Vance hired and paid for another exterminator, Highland
Eco Pest Control (“Highland”). Highland serviced the property on November 24, 2021. After
Highland’s treatment, Vance’s “coworker vacuumed and cleaned the house thoroughly every day
for two weeks,” as Highland had instructed. Vance did not call Highland for follow-up services
“because at the time Chris Parrish said he was going to have Orkin and Pest Now come to the
house.” Parrish sent one exterminator to the property on November 29, 2021, and another from
Orkin on November 30, 2021. According to Orkin, there was no evidence of flea activity at the
property. But Vance testified that even “when [Parrish] brought Orkin” to the property, she still
saw fleas there. She testified that she had “put down” “flea [s]trips” in the property and the flea
strips “had new fleas on them.”
On January 5, 2022, Vance filed a Tenant’s Assertion and Complaint against Parrish in
the Fairfax County General District Court. Vance alleged that the house that she was renting
from Parrish was infested with fleas. Vance sought recovery of rent that she had placed into
escrow, rent abatement for rent paid to Parrish during prior months in which the infestation was
ongoing, and termination of the rental lease under Code § 55.1-1244. The case went to trial and
that court entered judgment for Parrish. Vance appealed to the Fairfax County Circuit Court.3
The case proceeded to a one-day bench trial on August 31, 2022.
3 Vance filed a bill of particulars elaborating on her allegations and clarifying that she was also requesting attorney fees. Parrish filed a counterclaim seeking to recover for damage that Vance allegedly caused to the property, termination of the lease, and attorney fees. -3- At trial, the cause and the timeline of the flea infestation were the central issues of
contention. Vance argued that, due to the timing of the infestation and fleas needing living hosts
to survive, it was likely that the fleas were already in the house when she arrived. Parrish argued
that there was no evidence of fleas existing in the house before Vance’s arrival and, therefore,
Vance must have brought the fleas herself.
The parties also presented evidence from pest control technicians relating to the
infestation. Parrish filed a motion in limine to exclude “any expert evidence or testimony” from
Vance’s pest control technician, Jerrell Singleton, because Vance had failed to timely designate
Singleton as an expert witness. During the motion hearing, Vance stated that Singleton’s
testimony would be based on Singleton’s service report that had previously been provided to
Parrish. The circuit court ruled that because Vance had failed to timely designate Singleton as an
expert witness, Vance was precluded from introducing any expert evidence from Singleton. But
the circuit court also ruled that because Singleton had treated the property, Singleton could
provide evidence based on his personal observations. The circuit court noted that “should
[Singleton’s evidence] bleed into the nature of an expert opinion, [it would] rely on counsel to
object.” As a lay witness, Singleton testified that “throughout the entire process” of his treating
the property, “fleas were jumping on [him].”
Later, Vance sought to introduce a service report prepared by Singleton. Parrish objected
on the grounds that Singleton could not properly authenticate the report and Singleton was
precluded from providing expert evidence. The court overruled Parrish’s objection on
authentication. It admitted only the portions of the report that it deemed to be lay witness
testimony and excluded the portions it deemed to be “more along the lines of an expert opinion.”
Yet, later in the trial, Parrish moved to admit “the entirety” of Singleton’s service report into
evidence. After admission of the report, Singleton testified that the life cycle of a flea can last
-4- for “months” and that fleas can lay dormant for “up to at least six months.” Parrish objected, but
the circuit court overruled the objection.
The circuit court ruled from the bench, finding for Vance, terminating the lease, and
awarding Vance the rent she paid into escrow as well as attorney fees. The circuit court denied
Parrish’s counterclaim, finding that there was not “any evidence to support that counterclaim of
damage.” The circuit court entered an order in accord with these rulings on September 16, 2022.
Parrish filed two motions to reconsider and to suspend the circuit court’s order while the
hearing on the two motions was pending. In the motions to reconsider, Parrish requested that the
court hold a new trial.4 The circuit court entered an order on September 30, 2022, suspending
the September 16, 2022 order “until October 7, 2022, at which time the Final Order shall go into
effect and any and all appellate and/or other deadlines shall begin to run.” On October 12, 2022,
the court entered a final order denying Parrish’s motions to reconsider. Parrish appeals.
ANALYSIS
I. VRLTA and Warranty of Habitability
Parrish argues that the circuit court erred as a matter of law in concluding that Parrish
(the landlord), not Vance (the tenant), was responsible for eliminating household pests after
Vance took possession of the property. Parrish asserts that the lease signed by both parties
transferred this responsibility to the tenant. The lease states “Tenant shall be responsible for . . .
[c]ontrolling and eliminating household pests including but not limited to fleas, ticks, bed bugs,
roaches, silverfish, ants, crickets, and rodents during occupancy. Tenant shall be responsible for
4 Parrish argued that the circuit court erred by (1) finding that Vance did not bear responsibility for causing the flea infestation herself; (2) admitting expert testimony from Vance’s witness, Singleton, despite granting Parrish’s motion in limine to prevent Singleton from testifying as an expert; (3) admitting an expert report from Singleton; and (4) not allowing Parrish sufficient time to present his evidence in support of his defense and his counterclaim, in violation of Parrish’s constitutional right to due process. -5- the costs of the elimination of all such pests and vermin during occupancy and upon vacating
Premises.” Vance argues that Virginia law imposes a nonwaivable warranty of habitability on
residential leases and that the flea infestation and Parrish’s failure effectively to resolve it
breached that warranty.
This leads to the question of whether lease agreements may waive rights or remedies
made non-waivable by statute. Virginia law says no. Subsection A of Code § 55.1-1208
(“Prohibited provisions in rental agreements”) states that “[a] rental agreement shall not contain
provisions that the tenant: . . . [a]grees to waive or forgo rights or remedies under this chapter.”
Subsection B states that “[a]ny provision prohibited by subsection A that is included in a rental
agreement is unenforceable. If a landlord brings an action to enforce any such provision, the
tenant may recover actual damages sustained by him and reasonable attorney fees.” Therefore,
when a lease provision purports to waive tenant’s rights or remedies required by law, the law
controls and the lease provision is unenforceable.
Thus, we begin by considering whether Virginia law imposes a nonwaivable warranty of
habitability.
“[W]e review the trial court’s statutory interpretations and legal conclusions de novo.”
Sink v. Commonwealth, 28 Va. App. 655, 658 (1998). “When interpreting a statute or ordinance,
‘our primary objective is “to ascertain and give effect to legislative intent,” as expressed by the
language used in the statute.’” Berry v. Bd. of Supervisors of Fairfax Cnty., ___ Va. ___, ___
(Mar. 23, 2023) (quoting Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425
(2012)). “[I]f the comparison of one clause with the rest of the statute makes a certain
proposition clear and undoubted, the act must be construed accordingly and ought to be so
construed as to make it a consistent whole.” Hodges v. Commonwealth, Dep’t of Soc. Servs.,
-6- Div. of Child Support Enf't ex rel. Comptroller of Virginia, 45 Va. App. 118, 133 (2005) (quoting
Norman J. Singer, Statutes and Statutory Construction § 46:05 (6th ed. 2000)).
Virginia Code §§ 55.1-1200 to -1262 comprise the VRLTA. The VRLTA imposes
different duties on residential tenants and landlords.
One duty the VRLTA imposes on tenants is to “[k]eep that part of the dwelling unit and
the part of the premises that he occupies free from insects and pests, as those terms are defined in
§ 3.2-3900, and promptly notify the landlord of the existence of any insects or pests.” Code
§ 55.1-1227(A)(3) (“Tenant to maintain dwelling unit”). This section requires tenants to take an
active role in keeping the dwelling unit free from pests by promptly notifying the landlord of any
infestations. However, under the warranty of habitability imposed on the landlord by Code
§ 55.1-1220 (“Landlord to maintain fit premises”), it is ultimately the landlord’s duty to keep the
premises habitable, as discussed below.
Under Code § 55.1-1220(A)(1), a “landlord shall . . . [c]omply with the requirements of
applicable building and housing codes materially affecting health and safety.” Further, a
landlord must “[m]ake all repairs and do whatever is necessary to put and keep the premises in a
fit and habitable condition.” Code § 55.1-1220(A)(2) (emphases added). Virginia has not yet
expressly defined the terms “fit and habitable.” “Habitable” means “adequate, appropriate for
residence, capable of being inhabited, comfortable, fit for dwelling, fit for habitation, fit to be
occupied, fit to live in, inhabitable, livable, residential, suitable, suitable for living in,
tenantable.” Habitable, Burton’s Legal Thesaurus (6th ed. 2021). Other jurisdictions have
defined “habitable” to mean being in a condition that “permit[s] the inhabitants to live free of
serious defects to health and safety,” Guerdon Indus., Inc. v. Gentry, 531 So. 2d 1202, 1206
(Miss. 1988) (construing the implied warranty of merchantability in the mobile home context), or
“suitab[le] for living purposes; the home must be occupiable,” Aronsohn v. Mandara, 484 A.2d
-7- 675, 681 (N.J. 1984). “Fit and proper” means “[h]aving the necessary and desired qualities for a
particular purpose.” Fit and Proper, Black’s Law Dictionary (11th ed. 2019). Thus “fit” means
suitable, proper, appropriate, and/or fitting. Therefore, “fit and habitable” means that all
conditions in both definitions must be met. The premises must be livable, free from serious
defects to health and safety, and have necessary qualities for habitability.
An infestation of fleas is clearly a condition that can make a dwelling unit not livable, nor
free from serious defects to health and safety, and may deprive the unit of the necessary qualities
for the particular purpose of human living. Fleas may pose a serious threat to health and safety.
E.g., Felice v. Warf, 106 N.Y.S.3d 837, 847 (City Ct. 2019) (“[A] flea infestation could cause a
breach of the warranty of habitability and could lead to a constructive eviction of a tenant under
the appropriate circumstances . . . .”). Fleas are known to carry disease and caused the bubonic
plague pandemic, one of the most fatal pandemics in history.5
The warranty of habitability provided in Code § 55.1-1220(A) is not waivable.
A plain reading of Code § 55.1-1220(A) suggests that a tenant’s right to have the landlord
“[m]ake all repairs and do whatever is necessary to put and keep the premises in a fit and
habitable condition” cannot be waived. (Emphases added). Section (D) of the same statute
states that:
The landlord and tenant may agree in writing that the tenant perform the landlord’s duties specified in subdivisions A 3, 6, and 7 and also specified repairs, maintenance tasks, alterations, and remodeling, but only if the transaction is entered into in good faith and not for the purpose of evading the obligations of the landlord
5 Fleas “act as vectors for disease including typhus, rickettsial disease, bubonic plague, protozoan, and helminth infestations.” Jackie Anderson & Elizabeth Paterek, Flea Bites, STATPEARLS (Aug. 8, 2023), https://perma.cc/J6AN-ERLV (emphasis added). “Plague bacteria are most often transmitted by the bite of an infected flea.” Ecology and Transmission | Plague, CDC (July 31, 2019), https://perma.cc/WJ7S-AQ6E. “The Black Death was a devastating global epidemic of bubonic plague that struck Europe and Asia in the mid-1300s.” Amanda Onion, Missy Sullivan, Matt Mullen & Christian Zapata, Black Death, History (Mar. 28, 2023), https://perma.cc/LK52-69DV. -8- and if the agreement does not diminish or affect the obligation of the landlord to other tenants in the premises.
Code § 55.1-1220(D). Construing Code § 55.1-1220 as a consistent whole, the fact that section
(D) states that subsections 3, 6, and 7 of section (A) can be waived by an agreement between a
landlord and tenant in writing suggests that the other unnamed sections cannot be waived. These
other sections include the landlord’s duty to “keep the premises in a fit and habitable condition.”
In addition, our Supreme Court has likened Code § 55.1-1220(A)’s predecessor, Code
§ 55-248.13(A), to the common law “‘warranty of habitability doctrine . . . recognized’ in several
jurisdictions.” Isbell v. Com. Inv. Assocs., Inc., 273 Va. 605, 615 (2007) (“The language
appearing in [Uniform Residential Landlord and Tenant Act] § 2.104(a) is identical to the terms
of Code § 55-248.13(A) at issue here.”).6
Thus, based on a plain reading of Code § 55.1-1220 in context with the rest of the
VRLTA and our prior precedent, we hold that Code § 55.1-1220(A) provides tenants a warranty
of habitability that a landlord and tenant cannot waive by agreement. Here, the lease agreement
between Parrish and Vance attempted to shift the burden to deal with insect infestations to
Vance. However, the lease could not do so because Vance did not waive the warranty of
habitability by signing the lease agreement.
6 “The drafters’ comment accompanying URLTA § 2.104 states, . . . ‘[t]his section follows the warranty of habitability doctrine now recognized’ in several jurisdictions.” Isbell, 273 Va. at 615. In other jurisdictions as well, lease provisions cannot waive the implied warranty of habitability. E.g., N.Y. Real Prop. Law § 235-b (“Warranty of habitability”) (McKinney 2023) (“2. Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy.”); Residential Tenants’ Rights Guide, Office of the New York State Attorney General (Sept. 15, 2023, 3:30 PM), https://ag.ny.gov/publications/residential-tenants-rights-guide (“Any lease provision that waives [the warranty of habitability] is contrary to public policy and is therefore void. Examples of a breach of this warranty include the failure to provide heat or hot water on a regular basis, or the failure to rid an apartment of an insect infestation.”); Knight v. Hallsthammar, 623 P.2d 268, 272 (Cal. 1981) (recognizing that “an implied warranty of habitability and . . . a public policy which generally prohibits waiver of that warranty is consistent with California’s statutory pattern of landlord-tenant relations”). -9- II. Sufficiency of the Evidence
Parrish advances several arguments related to the sufficiency of the evidence for Vance’s
tenant’s assertion. We conclude the evidence sufficiently establishes that (1) there was a flea
infestation on the premises; (2) Vance gave prompt written notice to Parrish of the infestation;
(3) Parrish had a reasonable opportunity to remedy the infestation but failed to do so; and (4)
Vance paid into the court the amount of rent called for under the rental agreement. Thus, the
circuit court did not err in ruling for Vance on the tenant’s assertion.
“The trial court’s rulings come to us with a presumption of correctness. The trial court is
presumed to know and correctly apply the law ‘absent clear evidence to the contrary in the
record.’” Rainey v. Rainey, 74 Va. App. 359, 377 (2022) (citations omitted) (quoting Milam v.
Milam, 65 Va. App. 439, 466 (2015)). Whether a property is habitable is a question of fact,
which makes it a factual finding that is reviewable only if it is plainly wrong or unsupported by
the evidence. Grayson v. Westwood Bldgs. L.P., 300 Va. 25, 58 (2021) (noting that this Court
will not disturb the circuit court’s factual determinations unless “they are ‘plainly wrong or
without evidence to support [them]’” (quoting Code § 8.01-680)). “The credibility of the
witnesses and the weight accorded the evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented.” Canada v. Commonwealth, 75
Va. App. 367, 386 (2022) (quoting Elliott v. Commonwealth, 277 Va. 457, 462 (2009)).
As stated above, the warranty of habitability in Code § 55.1-1220 cannot be waived.
When a landlord breaches this nonwaivable warranty of habitability, a tenant may file a tenant’s
assertion under Code § 55.1-1244 (“Tenant’s assertion; rent escrow”). Under Code § 55.1-1244,
a tenant may request relief from a condition that exists on the leased premises that falls under
approximately six broad categories. The first two categories are conditions that (1) “constitute[]
a material noncompliance by the landlord with the rental agreement”; or (2) “constitute[] a
- 10 - material noncompliance by the landlord . . . with provisions of law.” The other four categories
are conditions that “if not promptly corrected, will constitute a [(3)] fire hazard or serious threat
to the [(4)] life, [(5)] health, or [(6)] safety of occupants of the premises,” which include, but are
not limited to:
a lack of heat or hot or cold running water, except where the tenant is responsible for payment of the utility charge and where the lack of such heat or hot or cold running water is the direct result of the tenant’s failure to pay the utility charge; a lack of light, electricity, or adequate sewage disposal facilities; an infestation of rodents; or the existence of paint containing lead pigment on surfaces within the dwelling, provided that the landlord has notice of such paint.
Code § 55.1-1244(A).
A flea infestation can fall under many of the categories of conditions outlined in Code
§ 55.1-1244. As stated above, the VRLTA imposes a duty on landlords to keep the premises in a
fit and habitable condition, and the presence of fleas certainly can render the premises
uninhabitable. See Felice, 106 N.Y.S.3d at 847. Whether that is true in any particular case is a
factual question, and the facts here support that finding.
To obtain relief under this section, a tenant must “show to the satisfaction of the court
that”: (1) the tenant gave the landlord written notice of the condition “or was notified of such
condition by a violation or condemnation notice from an appropriate state or local agency”; (2)
the landlord or his agent refused to remedy the condition after “having a reasonable opportunity
- 11 - to do so”7; and (3) “the tenant has paid into court the amount of rent called for under the rental
agreement.”8 Code § 55.1-1244(B).
A landlord may rebut a tenant’s assertion by “establish[ing] to the satisfaction of the
court that” the complained-of condition: (1) “do[es] not in fact exist”; (2) “ha[s] been removed or
remedied”; (3) was “caused by the tenant, his guest or invitee, members of the family of such
tenant, or a guest or invitee of such family member”; or (4) “the tenant has unreasonably refused
entry to the landlord to the premises for the purpose of correcting [the] condition[].” Code
§ 55.1-1244(C).
Here, the evidence supports the circuit court’s judgment. The evidence sufficiently
establishes that: (1) a condition existed on the premises that “constitute[d] a material
noncompliance by the landlord . . . with provisions of law”; (2) Vance gave Parrish written
notice of the condition; 9 (3) Parrish refused to remedy the condition after “having a reasonable
opportunity to do so”; and (4) Vance “paid into court the amount of rent called for under the
rental agreement.” A tenant’s remedies for a successful tenant’s assertion are found in Code
§ 55.1-1244 (D). These possible remedies include, but are not limited to, a court order:
7 “For the purposes of this subsection, what period of time shall be deemed to be unreasonable delay is left to the discretion of the court, except that there shall be a rebuttable presumption that a period in excess of 30 days from receipt of the notification by the landlord is unreasonable.” Code § 55.1-1244(B)(1). 8 The tenant must make this payment “within five days of the date due under the rental agreement, unless or until such amount is modified by subsequent order of the court under this chapter.” Code § 55.1-1244(B)(2). Parrish does not dispute that Vance paid the required amount of rent into court. 9 Per Code § 55.1-1227, discussed above in Section II., Vance had to show that she notified the landlord of the infestation. Vance’s establishment of the elements to prevail on a tenant’s assertion would also satisfy the duty imposed on her by Code § 55.1-1227. - 12 - 1. Terminating the rental agreement upon the request of the tenant . . . ; 2. Ordering all moneys already accumulated in escrow disbursed . . . to the tenant in accordance with this chapter; 3. Ordering that the escrow be continued until the conditions causing the complaint are remedied; 4. Ordering that the amount of rent, whether paid into the escrow account or paid to the landlord, be abated as determined by the court in such an amount as may be equitable to represent the existence of any condition found by the court to exist. In all cases where the court deems that the tenant is entitled to relief under this chapter, the burden shall be upon the landlord to show cause why there should not be an abatement of rent; 5. Ordering any amount of moneys accumulated in escrow disbursed to the tenant where the landlord refuses to make repairs after a reasonable time or to the landlord or to a contractor chosen by the landlord in order to make repairs or to otherwise remedy the condition. In either case, the court shall in its order insure that moneys thus disbursed will be in fact used for the purpose of making repairs or effecting a remedy; 6. Referring any matter before the court to the proper state or local agency for investigation and report and granting a continuance of the action or complaint pending receipt of such investigation and report. When such a continuance is granted, the tenant shall deposit with the court, within five days of date due under the rental agreement, subject to any abatement under this section, rents that become due during the period of the continuance, to be held by the court pending its further order;
- 13 - Code § 55.1-1244(D). “If the tenant proceeds under this subsection, [s]he may not proceed
under any other section of this article10 as to that breach.”11 Code § 55.1-1244(F).
Additionally, a tenant’s remedy for a landlord’s violation of the warranty of habitability
“is termination of the rental agreement after providing written notice to the landlord and an
opportunity for the landlord to correct the breach.” Isbell, 273 Va. at 616 (discussing
predecessor to Code § 55.1-1220(A), Code § 55-248.13(A)). “A tenant may also recover
damages and obtain injunctive relief.” Id.
During the hearing, Vance testified that there were a lot of fleas on her person that “ate
[her] body pretty bad.” Singleton, the Highland pest technician, also testified to the numerous
10 Code § 55.1-1244 is contained in Article 4 of the VRLTA, which is entitled “Tenant Remedies.” Article 4 encompasses Code §§ 55.1-1234 through 55.1-1244.1. Other relief available to a tenant in this article includes actions under Code §§ 55.1-1243.1, 55.1-1234. A tenant may bring an action under Code § 55.1-1243.1 if the tenant establishes “that h[er] landlord has willfully and without authority from the court (i) removed or excluded the tenant from the dwelling unit unlawfully, (ii) interrupted or caused the interruption of an essential service to the tenant, or (iii) taken action to make the premises unsafe for habitation.” “Essential service” is defined in Code § 55.1-1200. If the tenant suffered any of these actions, the court may order “the landlord to (i) allow the tenant to recover possession of the dwelling unit, (ii) resume any such interrupted essential service, or (iii) fix any willful actions taken by the landlord or his agent to make the premises unsafe for habitation.” Code § 55.1-1243.1(B). Under Code § 55.1-1234:
Except as provided in this chapter, if there is a material noncompliance by the landlord with the rental agreement or a noncompliance with any provision of this chapter, materially affecting health and safety, the tenant may serve a written notice on the landlord specifying the acts and omissions constituting the breach and stating that the rental agreement will terminate upon a date not less than 30 days after receipt of the notice if such breach is not remedied in 21 days. 11 Because Vance did not bring a constructive eviction action, see Buchanan v. Orange, 118 Va. 511, 516 (1916), we do not address whether she would have been entitled to relief on a constructive eviction theory. See Commonwealth v. White, 293 Va. 411, 419 (2017) (“[T]he doctrine of judicial restraint dictates that we decide cases ‘on the best and narrowest grounds available.’” (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015)). - 14 - fleas in the house, stating that fleas jumped on him the entire time he treated the property. Based
on this evidence, the circuit court was not plainly wrong in finding that the property was
uninhabitable. The severity of this flea infestation was a condition that constituted a material
noncompliance by Parrish with the rental agreement and the provisions of law requiring him to
keep the premises fit and habitable.
Moreover, Vance gave Parrish the opportunity to correct the issue. The record shows that
Vance notified Parrish of the flea problem in writing, via email, on October 25, 2021, but the
property was still flea-infested as of November 30, 2021. Under Code § 55.1-1244(B), there is
“a rebuttable presumption that a period in excess of 30 days from receipt of the notification by
the landlord is unreasonable.” Although Parrish disputes those facts and asserts that his pest
technician did not find fleas, the circuit court was entitled to credit Vance’s contrary evidence.
And although Parrish asserts that Vance caused the flea infestation, the circuit court was entitled
to credit the expert testimony that the flea activity had been ongoing for months, even before
Vance took possession of the property.
Parrish also argues that the circuit court erred in granting judgment to Vance, as no
evidence was presented at trial that the flea infestation existed when Vance filed the tenant’s
assertation as required by Code § 55. l-1244(A) (“The tenant may assert that there exists upon
the leased premises a condition that constitutes a material noncompliance by the landlord with
the rental agreement or with provisions of law . . . .” (emphasis added)). Taken in the light most
favorable to Vance, however, the circuit court could reasonably find that the flea problem had
not abated when Vance filed her tenant’s assertion on January 5, 2022. Vance testified that the
exterminator who treated the property in October said that “several treatments” would be
necessary. But Parrish did not arrange for further treatments. After the October treatment,
Vance took a video on November 3 showing that fleas were still present. After moving out,
- 15 - Vance visited the property about “twice a month.” She testified that she still saw “flea activity,”
though the high level of flea activity was much less (“gone”) compared to before. Given
Parrish’s failure to provide the multiple flea treatments required to abate the problem and
Vance’s testimony about the continuing flea activity, the circuit court could reasonably find that
the flea problem continued to exist when Vance filed her tenant’s assertion.
Thus, we affirm the circuit court’s rulings that Vance “carried her burden,” “that the
presence of the fleas made it to the point where . . . it was unhealthy to be in and that the matter
wasn’t resolved by the landlord.” The flea infestation was a condition that was materially
noncompliant with the warranty of habitability provided by Code § 55.1-1220(A); Parrish failed
to correct this condition within a reasonable time, and Vance was entitled to termination of the
lease and damages.
III. Admission of Singleton’s Expert Report and Testimony
Parrish also argues that the circuit court erred in admitting Singleton’s service report and
expert testimony because (1) Singleton “could not authenticate such document as he was not the
custodian of records”; and (2) the circuit court had already ruled that any expert evidence from
Singleton was not admissible because Singleton was not timely designated as an expert.
“Appellate courts review a circuit court’s ruling on the admissibility of evidence under an
abuse of discretion standard.” Davenport v. Util. Trailer Mfg. Co., 74 Va. App. 181, 206 (2022).
“A court always abuses its discretion when it makes an error of law.” Id. “A court can also
abuse its discretion in three other ways: (1) by failing to consider a relevant factor that should
have been given significant weight, (2) by considering and giving significant weight to an
irrelevant or improper factor, and (3) by committing a clear error of judgment, even while
weighing ‘all proper factors.’” Id. (quoting Lawlor v. Commonwealth, 285 Va. 187, 213 (2013)).
- 16 - To authenticate a document under Rule of Evidence 2:803(6), the proponent must show:
(A) the record was made at or near the time of the acts, events, calculations, or conditions by—or from information transmitted by—someone with knowledge; (B) the record was made and kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making and keeping the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 2:902(6) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
Here, Singleton properly authenticated the report through his testimony. Singleton
identified the report as “a service report” that he drafted on November 24, 2021, the same day he
treated the property. He also testified that the exhibit was a true and accurate copy of his report.
Thus, the circuit court did not err in ruling that Singleton properly authenticated the service
report.
The circuit court also did not err in admitting expert evidence from Singleton because
Parrish first introduced the expert evidence he sought to exclude. Parrish asked for Singleton’s
service report to be admitted in its “entirety,” including the portions the circuit court had
previously deemed “expert testimony” and thus excluded. Singleton’s subsequent expert
testimony that flea life cycles can span months was based on this report, which included
Singleton’s expert opinion that the flea activity had “been ongoing for several months.” “[A]
party [may not] invite error and then attempt to take advantage of the situation created by his
own wrong.” Cangiano v. LSH Bldg. Co., 271 Va. 171, 181 (2006). Therefore, we affirm the
circuit court’s decision and hold that the circuit court did not err by admitting Singleton’s expert
report and testimony.
- 17 - IV. Due Process
Finally, Parrish argues that his due process rights were violated by not being able to “put
on his entire case.”
Under Rule 5A:18, “No ruling of the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable certainty at the time of the ruling, except
for good cause shown or to enable this Court to attain the ends of justice.” “A mere statement
that the judgment or award is contrary to the law and the evidence is not sufficient to preserve
the issue for appellate review.” Id. “Rule 5A:18 requires a litigant to make timely and specific
objections, so that the trial court has ‘an opportunity to rule intelligently on the issues presented,
thus avoiding unnecessary appeals and reversals.’” Brown v. Commonwealth, 279 Va. 210, 217
(2010).
Here, Parrish conceded at oral argument that he did not contemporaneously object to the
circuit court’s schedule and his alleged inability to put on his entire case. At the close of
evidence, Parrish did not make any objections. Instead, he stated, “That’s all, Judge,” and the
court proceeded to closing arguments. Parrish did not make the argument he makes now,
contesting his inability to put on his entire case. At oral argument, Parrish conceded that he did
not raise that argument for the first time until his motion to reconsider, in which he objected to
the circuit court’s written order entered September 16, 2022, after the trial was over. That
objection came too late. E.g., Carter v. Commonwealth, 293 Va. 537, 549 (2017) (“We have
repeatedly held that in order to preserve an issue for appeal a party must make known to the trial
court the action which he desires the court to take or his objections to the actions and the grounds
therefore ‘at a point in the proceeding when the trial court is in a position not only to consider the
asserted error, but also to rectify the effect of the asserted error.’” (quoting Scialdone v.
- 18 - Commonwealth, 279 Va. 422, 437 (2010))). Because Parrish did not make his objection at a time
when the circuit court could have corrected the error, his argument is barred on appeal.
CONCLUSION
The VRLTA provides tenants a warranty of habitability that cannot be waived. The
evidence sufficiently established that Vance was entitled to recover under a tenant’s assertion for
the property’s noncompliance with this warranty of habitability. The circuit court did not err in
admitting the evidence contested by Parrish, and Parrish’s due process argument is procedurally
barred. Thus, we uphold the circuit court’s judgment for Vance.
Affirmed.
- 19 -