Yarbrough, et al v. Hunt S Grp, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-60880

Michael Yarbrough, Jr.; Ann Yarbrough; Alizelyia
Yarbrough; Michael Yarbrough, III, Minors, by and through
their natural guardians, Michael Yarbrough, Jr. and Ann
Yarbrough; James Yarbrough, Minors, by and through their
natural guardians, Michael Yarbrough, Jr. and Ann
Yarbrough,

Plaintiffs—Appellants,

versus

Hunt Southern Group, L.L.C., formerly known as Forest City
Southern Group, L.L.C.; Forest City Residential
Management, L.L.C.; Hunt MH Property Management,
L.L.C.,

Defendants—Appellees.

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:18-CV-51

Before Barksdale, Elrod, and Ho, Circuit Judges.
United States Court of Appeals
Fifth Circuit
FILED
November 12, 2020

Lyle W. Cayce
Clerk
Case: 19-60880 Document: 00515636255 Page: 1 Date Filed: 11/12/2020

No. 19-60880
2
Per Curiam:*
At issue is the summary judgment granted appellees. AFFIRMED.
I.
Keesler Air Force Base (Keesler) is located along the Gulf Coast in
Biloxi, Mississippi. In 2011, the United States Air Force entered into a land
lease with Forest City Southern Group, LLC (Forest City Southern), to
transfer ownership and “privatize” over 1,000 residential units at Keesler.
Between 2011–16, the units were managed by Forest City Residential
Management, LLC (FCRM). In 2016, Forest City Southern changed its
name to Hunt Southern Group, LLC, and management of the properties
transferred to Hunt MH Property Management, LLC (collectively, Hunt
Southern). Neither FCRM nor Hunt Southern designed or constructed the
units.
In 2015, in response to moisture and mold issues in various units,
Hunt Southern (then, Forest City Southern) initiated its moisture
remediation project (MRP) throughout all Keesler units. By early 2018, the
MRP had addressed every unit, with the extent of work depending on the
unit’s particular problem.
Technical Sergeant Ann Yarbrough moved into Keesler housing in
2011. She signed a lease with Hunt Southern containing, inter alia, a clause
allowing the landlord to relocate the tenant if the unit was rendered
uninhabitable. Between 2011–17, the Yarbroughs made at least seven mold-
related maintenance requests. In late 2016, the unit was repaired according

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-60880 Document: 00515636255 Page: 2 Date Filed: 11/12/2020

No. 19-60880
3
to the MRP, with extensive remediation efforts targeting moisture
accumulation and mold growth.
In early 2017, the Yarbroughs engaged Mold Test, USA, to inspect
their unit. The test revealed the presence of, inter alia, Aspergillus and
Penicillium—molds that can cause diseases in humans. The test, however,
did not determine the species of Aspergillus or Penicillium (only 20 of
roughly 175 species of Aspergillus are harmful), and moisture levels in the
unit were normal.
The Yarbroughs filed this action against FCRM and Hunt Southern
in December 2017, presenting 11 claims, including: constructive eviction,
breach of contract, and fraudulent concealment. The Yarbroughs declined
Hunt Southern’s offer to relocate them to a new unit in August 2018, and did
not vacate their unit until February 2019.
FCRM and Hunt Southern moved for summary judgment following
discovery. The court granted their motion and denied the Yarbroughs’
Federal Rule of Civil Procedure 59(e) motion.
II.
The Yarbroughs contest the summary judgment on only five of their
11 claims in district court: breach of contract; breach of agreement to repair;
breach of implied warranty of habitability; fraudulent concealment; and
constructive eviction under the Servicemember Civil Relief Act (SCRA).
They also present three additional issues regarding: two discovery orders by
a magistrate judge; intentional infliction of emotional distress; and third-
party-beneficiary breach of contract. We turn first to these three issues, each
of which lacks merit.

Case: 19-60880 Document: 00515636255 Page: 3 Date Filed: 11/12/2020

No. 19-60880
4
A.
1.
We lack jurisdiction to review either of the two challenged discovery
orders by the magistrate judge. First, the Yarbroughs did not designate these
orders in their notice of appeal. They are, therefore, outside appellate
jurisdiction. Fed. R. App. P. 3(c)(1)(B); see Smith v. Barry, 502 U.S. 244, 248
(1992) (“Although courts should construe Rule 3 liberally when determining
whether it has been complied with, noncompliance is fatal to an appeal.”).
Second, even if they had been designated, the Yarbroughs never appealed the
orders to the district court as required by Federal Rule of Civil Procedure
72(a).
2.
As the district court correctly noted in granting summary judgment,
the Yarbroughs’ intentional-infliction-of-emotional-distress claim was raised
for the first time in the Yarbroughs’ response to the Rule 56(a) summary-
judgment motion. Summary judgment may not be defeated “on the basis of
a theory found nowhere in [plaintiff’s] complaint, at least without also
moving to amend or absent trial by consent”. Johnson v. Thibodaux City, 887
F.3d 726, 736 (5th Cir. 2018).
3.
In a similar vein, the Yarbroughs’ third-party-beneficiary claim was
not presented on appeal until in their reply brief. As discussed in appellees’
motion to strike a portion of that brief (the motion is DENIED as moot),
this issue has not been properly preserved. See CenturyTel of Chatham, LLC
v. Sprint Commc’ns Co., L.P., 861 F.3d 566, 573 (5th Cir. 2017) (applying the
general rule that issues raised for the first time in a reply brief will not be
considered on appeal).
Case: 19-60880 Document: 00515636255 Page: 4 Date Filed: 11/12/2020

No. 19-60880
5
B.
Essentially for the reasons stated by the district court in its well-
reasoned opinion, summary judgment was proper. Along that line, summary
judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law”. Fed. R. Civ. P. 56(a). A summary judgment is reviewed de
novo, applying the same legal standard as the district court. E.g., Heggemeier
v. Caldwell Cty., 826 F.3d 861, 866 (5th Cir. 2016).
1.
The breach-of-contract and breach-of-agreement-to-repair claims fail
for the same reason: there are no identified provisions within the lease that
FCRM or Hunt Southern violated. Notwithstanding the Yarbroughs’
insistence that the terms of the lease weren’t at issue in the summary-
judgment motion (they were), the Yarbroughs never substantiated either
claim with relevant provisions within the lease.
2.
The Yarbroughs also failed to produce adequate evidence of specific
causation in support of their implied-warranty-of-habitability claim. And, as
the district court correctly observed, they provided no evidence supporting
specific causation, let alone expert testimony for the claim. As noted, the
Yarbroughs’ expert was unable to determine the specific mold(s) to which
the Yarbroughs were exposed; and the only medical-expert evidence offered
in the case was by a Rule 35 examiner who determined “to a reasonable
degree of medical certainty” that the Yarbroughs’ symptoms were not
caused by exposure to mold in their unit.

Case: 19-60880 Document: 00515636255 Page: 5 Date Filed: 11/12/2020

No. 19-60880
6
3.
Similarly, the Yarbroughs did not present evidence in support of their
claims for fraudulent-concealment and constructive-eviction-under-the-
SCRA. No misrepresentations were pleaded, and there was no evidence
showing the Yarbroughs were manipulated or fraudulently induced into
refusing the offer to relocate in 2018. Rather, the Yarbroughs chose to remain
in their unit after being offered to move at no cost, belying their claim of
constructive eviction. And, because there was no constructive eviction, there
can be no claim under the SCRA. See 50 U.S.C. § 3951(a)(1)(A) (“Except by
court order, a landlord (or another person with paramount title) may not . . .
evict a servicemember . . . during a period of military service of the
servicemember, from premises . . . that are occupied or intended to be
occupied primarily as a residence”) (emphasis added).
III.

For the foregoing reasons, the judgment is AFFIRMED.
Case: 19-60880 Document: 00515636255 Page: 6 Date Filed: 11/12/2020