Construction Law Insights

Theuer v. Norfolk Air Heating & Cooling, Inc., 2020 Va. Cir. LEXIS 190 (City of Norfolk Cir. Ct. Oct. 7, 2020)

In count four of her complaint, plaintiff Elise Theuer alleged that defendant Norfolk Air Heating & Cooling, Inc. (“Norfolk Air”) violated the Virginia Home Solicitation Sales Act (the “Act”) regarding a contract for the installation of an HVAC system for Theuer’s historic residential property in Norfolk, Virginia. According to the complaint, the first contact between the parties occurred following Theuer’s call to Norfolk Air for an appointment to discuss a ductless or “mini-splits” system for her home. During the appointment, Norfolk Air provided a typed quote dated September 25, 2017, and Theuer signed the quote on November 21, 2017. The quote did not include any notice of a right of cancellation. After Norfolk Air installed the system, it failed to operate properly, and, after multiple

service calls, Norfolk Air refused to make additional repairs. Theuer hired a different contractor in 2020 to mitigate Norfolk Air’s alleged breach. Theuer sued, and Norfolk Air demurred to the violation of the Act alleged in count four.

The Act requires that personal solicitations for services that take place in a residence and result in a sale must include a notice of the buyer’s right to cancel the transaction by midnight of the third business day after the day on which the buyer signs an agreement or offer to purchase. Va. Code § 59.1-21.3(1). The court looked to Virginia Attorney General Opinions discussing the Act and held that buyer-initiated contacts that result in home sales related to the residence are outside the scope of the Act. According to the complaint, Theuer initially contacted Norfolk Air when she telephoned the contract and expressed her interest for an HVAC system.

In addition, Theuer failed to allege that the agreement occurred at the home during the solicitation by the Norfolk Air technician. Under the Act, a home sale solicitation requires that the “buyer’s agreement or offer to purchase or lease is there given to the seller.” Va. § Code 59.1-21.2(A)(2). The complaint noted that the contract is dated two months before the date of Theuer’s signature, and that the contract was typed, which indicates that it likely was not completed at the time of the initial visit. In light of the above, Theuer failed to sufficiently plead a violation of the Act, and the court sustained the demurrer to count four.

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