Frank Gaus, III v. Vertex Non-Profit Holdings, Inc.

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 30, 2024
• Docket: 23-1317
• Status: Unpublished

Opinion

USCA4 Appeal: 23-1317 Doc: 38 Filed: 05/30/2024 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1317

FRANK GAUS, III; KRISTI GAUS, his wife,

Plaintiffs - Appellants,

v.

VERTEX NON-PROFIT HOLDINGS, INC., A Corporation,

Defendant - Appellee,

No. 23-1319

EYP MISSION CRITICAL FACILITIES, INC., A Corporation,

Defendant - Appellee.

Appeals from the United States District Court for the Northern District of West Virginia, at Clarksburg. Thomas S. Kleeh, Chief District Judge. (1:18-cv-00160-TSK-MJA; 1:19- cv-00014-TSK)

Submitted: March 28, 2024 Decided: May 30, 2024 USCA4 Appeal: 23-1317 Doc: 38 Filed: 05/30/2024 Pg: 2 of 3

Before HARRIS, RUSHING, and BENJAMIN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Samuel J. Pasquarelli, SHERRARD, GERMAN & KELLY, P.C., Pittsburgh, Pennsylvania, for Appellants. Peter T. DeMasters, Stanley A. Heflin III, FLAHERTY, SENSABAUGH, BONASSO, PLLC, Morgantown, West Virginia; Michael A. Weiner, BENNETT, BRICKLIN & SALTZBERG, LLC, Pittsburgh, Pennsylvania; Mario Bordogna, CLARK HILL, Morgantown, West Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2 USCA4 Appeal: 23-1317 Doc: 38 Filed: 05/30/2024 Pg: 3 of 3

PER CURIAM:

In these consolidated appeals, Frank Gaus, III, and Kristi Gaus (“Appellants”)

appeal the district court’s orders granting summary judgment to Vertex Non-Profit

Holdings, Inc., and EYP Mission Critical Facilities, Inc. (“Appellees”), on their negligence

and loss of consortium claims. We review the district court’s orders de novo, “applying

the same legal standards as the district court and viewing all facts and reasonable inferences

in the light most favorable to the nonmoving party.” Ballengee v. CBS Broad., Inc., 968

F.3d 344, 349 (4th Cir. 2020).

Upon reviewing the record, we agree with the district court that Appellants have

failed to establish a genuine dispute of material fact that Appellees breached a duty. See

Aikens v. Debow, 541 S.E.2d 576, 580 (W. Va. 2000) (“No action for negligence will lie

without a duty broken.”). Specifically, there is no evidence upon which a jury could find

that either Appellee was responsible for the erroneous single-line drawing upon which

Appellants base their claims. Accordingly, we affirm the district court’s orders. Gaus v.

Gen. Servs. Admin. of the U.S., No. 1:18-cv-00160-TSK-MJA (N.D.W. Va. Mar. 9, 2023;

Mar. 14, 2023). We dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED