Eldridge Bolling, III v. CH Realty VI-Alliance MF Alexandria Van Dorn, L.L.C.

COURT OF APPEALS OF VIRGINIA Record No. 0736-24-4 ELDRIDGE BOLLING, III v. CH REALTY VI–ALLIANCE MF ALEXANDRIA VAN DORN, L.L.C., ET AL. Present: Judges Beales, Causey and White Argued at Alexandria, Virginia Opinion Issued November 4, 2026* FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Alfred D. Swersky, Judge Designate Richard S. Toikka (Wilt Toikka Kraft, LLP, on briefs), for appellant. Drew Marrocco (Denton US LLP, on brief), for appellee CH Realty VI–Alliance MF Alexandria Van Dorn, L.L.C. Amy M. Heerink (Leslie Paul Machado; O’Hagan Meyer, PLLC, on brief), for appellee Combined Van Dorn Towers, LLC. MEMORANDUM OPINION BY JUDGE DORIS HENDERSON CAUSEY On April 1, 2024, a jury trial commenced on two claims brought by Eldridge Bolling, III against his former landlords, CH Realty VI–Alliance MF Alexandria Van Dorn, L.L.C. (CH Realty) and Combined Van Dorn Towers, L.L.C. (Van Dorn). Bolling had brought claims for retaliation under the Virginia Residential Landlord Tenant Act (VRLTA), Code § 55.1-1258, and racial discrimination under the Virginia Fair Housing Law (VFHL), Code § 36-96.3(A)(2). After the conclusion of Bolling’s presentation of evidence, both defendants moved to strike. The circuit court granted both motions. * This opinion is not designated for publication. See Code § 17.1-413(A).  On appeal, Bolling argues that the circuit court erred because he presented sufficient evidence to create a jury issue on his two claims. For the following reasons, we reverse and remand for further proceedings. BACKGROUND1 In February 2018, Bolling signed a residential lease for a unit in an apartment building in Alexandria, Virginia owned by CH Realty. Within months of moving in, Bolling learned of pest problems in the building, including an infestation of mice in his apartment and an infestation of bedbugs in the units of numerous fellow tenants. Bolling raised concerns over the infestation with CH Realty’s building manager, Michelle Prasasouk. As Bolling testified, Prasasouk did “basically nothing” to fix the issue. Additionally, she responded by making comments to and about Bolling, referring to him as “you people” while “shak[ing] her head and laugh[ing].” Bolling, who is African American, informed her that he found these comments racist. In response, Prasasouk “switched up and would say ‘your kind.’” CH Realty did not fire or otherwise prevent Prasasouk from using these racial epithets, despite Bolling’s complaints. Around September 2018, roughly two months after Bolling became aware of the infestation, Bolling contacted multiple governmental agencies to complain about the issue and CH Realty’s inaction. These agencies included the City of Alexandria’s Department of Code Administration, Housing Authority, and Health Department. Finally, on November 20, 2018, 1 “According to well-settled principles of appellate review, when the evidence has been struck at the conclusion of the plaintiff’s case-in-chief, we will recite the facts in the light most favorable to the plaintiff.” Perdieu v. Blackstone Fam. Prac. Ctr., 264 Va. 408, 411 (2002) (citing Bryan v. Burt, 254 Va. 28, 30-31 (1997)). -2- Bolling filed a Tenant’s Assertion lawsuit against CH Realty in general district court. In that suit, Bolling sought an abatement of rent, effective September 16, 2018.2 Events During the Pendency of Bolling’s Tenant’s Assertion Suit After filing his Tenant’s Assertion claim, Bolling began paying rent into escrow with the general district court. However, CH Realty soon began posting late payment notices3 on Bolling’s door. Bolling asked Prasasouk why CH Realty was issuing him these late notices despite his payments into escrow being legally required.4 CH Realty’s response to Bolling was that “[u]ntil it’s in the management office, you’re late.” Bolling continued to have conversations with Prasasouk about the late payment notices. During one such conversation, less than one week after Bolling filed the Tenant’s Assertion, Prasasouk abruptly began “screaming” the words, “‘You’re threatening me,’ at the top of her lungs.” Bolling recalled that he was taken off guard by this and that other witnesses to the interaction appeared shocked. When Prasasouk reached for her phone, Bolling believed that she was going to call the police and, so, he went back to his unit and called the police himself. The police report confirmed that Bolling provided the same account to the police that he did at trial and that both parties were advised that the issue was civil in nature. 2 One remedy in a Tenant’s Assertion suit is for the court to order “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.” Code § 55.1-1244(D)(4). 3 The record does not state whether these notices included language of lease termination under Code § 55.1-1245(F). Bolling does not argue that these notices, in themselves, made out a claim for retaliation under Code § 55.1-1258, so this omission in the record is not significant to our analysis. 4 Under Code § 55.1-1244(B)(2), a tenant must pay rent into escrow to maintain a Tenant’s Assertion suit. -3-  On December 3, 2018, less than one week after this interaction, CH Realty served Bolling with a notice entitled “Notice to Cure or Vacate.” The notice alleged that Bolling had violated his lease by “repeatedly” interacting with “management and other staff members” in a “loud, demeaning, disrespectful, rude and offensive” manner, thereby “disrupting the conduct of their business.” The notice stated that if Bolling did not remedy the alleged lease violations within 21 days, his lease would terminate in 30 days. At that point, it said, Bolling would be required to “vacate the premises and surrender them to the landlord.” If Bolling did not vacate, CH Realty would “proceed with legal action.”5 On December 5, 2018, Bolling wrote a letter to CH Realty’s counsel, stating that he “categorically den[ied] the allegation[s]” in the notice. Later, at trial, Bolling unequivocally stated regarding those allegations, “I did none of this.” Despite Bolling’s requests, CH Realty continued to place the late payment notices on Bolling’s door, multiple times per month, throughout the pendency of Bolling’s Tenant’s Assertion suit. During this period, Bolling recalled, Prasasouk, using her contacts as the building manager, discussed Bolling’s personal information with other tenants in the building without his consent, including information regarding “the state of [his] tenancy.”6 In January 2019, while Bolling’s tenant’s assertion suit was still pending, CH Realty declined Bolling’s request to renew his year-long lease. CH Realty’s legal counsel sent an email 5 Prior to terminating a lease due to a tenant’s “material noncompliance by [a] tenant materially affecting health and safety,” a landlord must provide the tenant with a notice that (a) “specif[ies] the acts and omissions constituting the breach” and (b) “stat[es] that the rental agreement will terminate upon a date not less than 30 days after receipt of the notice if the breach is not remedied in 21 days and that the rental agreement shall terminate as provided in the notice.” Code § 55.1-1245. 6 Code § 55.1-1209 states that “[n]o landlord or managing agent shall release information about a tenant or prospective tenant in the possession of the landlord or managing agent to a third party,” subject to certain defined exceptions. -4- informing Bolling that it “would be willing” to allow him to move out of his unit after the expiration of his lease rather than requiring him to pay an increased month-to-month rate. Bolling’s counsel responded by email that Bolling was “very puzzled” by the message because Bolling had sent repeated, timely requests to renew his lease, to which he received no reply. In response, CH Realty’s counsel urged that Bolling “plan to move on.” The General District Court’s Judgment and Its Aftermath On February 7, 2019, the general district court rendered judgment in favor of Bolling on his Tenant’s Assertion claim. The court granted Bolling $1,567.75 in partial abatement of his rent, plus over $1,500 in attorney fees and court costs. The court also made a finding that CH Realty’s continued placement of late payment notices on Bolling’s door was in retaliation for Bolling’s filing the Tenant’s Assertion.7 Immediately after the court rendered judgment, CH Realty’s counsel advised Bolling, in person, that CH Realty wanted Bolling to vacate the unit. CH Realty also continued to decline Bolling’s requests to renew his original one-year lease, so Bolling’s lease converted to a month- to-month tenancy. Between March and May 2019, CH Realty prevented Bolling from paying rent through its online portal. He was instead required to pay his rent by obtaining a certified check from a bank. Additionally, during this general period, Bolling also began noticing that his name would be “scratched off the list” of tenants in line to obtain pest control services. On some occasions, this caused pest control not to service his unit. 7 As a court not of record, the general district court’s findings are not generally available for appellate court review. Here, however, the evidence before the court in this case included a letter written by CH Realty’s counsel, in which he noted that the general district court rendered the above-mentioned finding. -5-  In one instance, police officers responded to Bolling’s apartment and told Bolling that CH Realty had reported a smell of marijuana coming from his apartment. Per Bolling’s testimony, this report was false. In another instance, in November 2019, Bolling’s landlord8 advised a fellow tenant whose car was vandalized that the vandal had likely been looking for Bolling’s car. As Bolling testified, he found this allegation incredible due to the distance between the two vehicles and their dissimilar appearances. Van Dorn’s Period as Landlord The record indicates that Van Dorn became the owner of the building in either November or December 2019. Bolling testified that he and another tenant, Mona Atari, a white woman, had several negative encounters while Van Dorn managed the property.9 First, on December 4, 2019, Atari attempted to physically block Bolling from entering the elevator with her, claiming that the elevator was “not working.” Bolling, nevertheless, entered the elevator, which in fact operated as normal. Bolling sent an email that night to Van Dorn staff reporting the incident. He also sent a follow-up email in which he asked, “Will someone please inform her that I found this behavior to be reprehensible and unacceptable.” Over the ensuing days, Bolling sent multiple follow-up emails about the incident and requested that a copy of his letter be sent to Atari. According to Bolling, Van Dorn ignored Bolling’s repeated complaints and never took any action regarding the incident. 8 The record is not entirely clear when ownership of the building changed hands. However, this singular incident is not essential to our decision in this case. 9 Bolling testified that Atari asked Bolling to serve as a witness in a slip-and-fall case she was planning to bring against CH Realty, and Bolling refused because, as a witness, she wanted him to lie for her. Bolling noted that, from his point of view, many of her actions were in response to this initial engagement between them. -6-  On December 10, 2019, Van Dorn staff member, Brandon Cook, called 911 after Atari told Cook that Bolling approached her in the parking lot, the two exchanged words, and she felt “threatened.” Van Dorn called the police on Bolling. After investigating the event, police determined that no crime was committed. Without responding to Bolling’s repeated requests to investigate this and the incident on the elevator, on January 3, 2020, Van Dorn placed a nonrenewal notice on Bolling’s door.10 After Bolling contested this notice, Van Dorn placed an updated notice on his door on January 9, 2020. The notice recounted Atari’s allegations against Bolling and stated that, though Bolling disputed the allegations, Van Dorn still intended to terminate his lease. One day later, Atari approached Bolling and stuck her tongue out at him. Bolling then asked Van Dorn’s building manager for a complaint form, but he refused to issue one. Bolling then called the police because Atari’s behavior “was just too much.” When police arrived, Bolling also told officers about her repeated gestures towards him when she saw him around the property and about a situation in which Atari harassed him via his doorbell camera. Bolling was given until March 31, 2020, to vacate his unit. On March 15, as Bolling was moving out, Atari wagged her finger and stuck her tongue at him, saying, “I got you evicted.” On May 22, 2020, Bolling sent a letter to Van Dorn’s attorney, detailing the above events, and requested an investigation. The attorney did not respond, prompting Bolling to file this civil complaint. Legal Proceedings Before the Circuit Court Bolling filed a complaint against CH Realty and Van Dorn in circuit court on March 15, 2021. Bolling asserted claims of retaliation under Code § 55.1-1258 and racial discrimination 10 This notice was later rescinded because Van Dorn general counsel John Cooleen learned it should have been a 60-day notice. -7- under Code § 36-96.3(A)(2) against both parties. Bolling’s claim was nonsuited in September 2022 and then refiled in February 2023. Prior to trial, Van Dorn filed a demurrer to Bolling’s complaint, which the court granted as to the retaliation claim but denied as to the racial discrimination claim. As a result, three claims proceeded to trial in April 2024: one claim for retaliation, solely against CH Realty, and claims for racial discrimination against both CH Realty and Van Dorn. After Bolling’s presentation of evidence, CH Realty and Van Dorn moved to strike. The trial judge made comments to the parties on the record before announcing his decision on the motions to strike. The trial judge first acknowledged that “the Supreme Court has tried over the years to discourage trial judges from” granting motions to strike. The trial judge then noted that he had long said that he “took the same oath to uphold the law that the Supreme Court justices took” and that if he “felt that a motion to strike should be granted, then [he] was going to grant it.” The trial judge added that he “would meet [the justices] in a debate anywhere as to whether it was judicial economy to let a case go forward when the trial judge has serious concerns about the sufficiency of the evidence.” The court then opined that Bolling’s “entire case is based upon these two statements— allegedly because I haven’t heard the defendants’ evidence yet—about the ‘you people’ and ‘your kind’ made by this office manager of the management company. And that’s it.” The court concluded that the evidence was insufficient to survive the motions to strike “because of the lack of any real evidence that the actions of the two defendants were racially motivated.” The court then granted the defendants’ motions to strike both the retaliation and racial discrimination counts of Bolling’s complaint. The court’s order dismissing Bolling’s complaint was entered on April 12, 2024. This appeal followed. -8-  ANALYSIS I. Standard of Review “When reviewing a trial court’s decision to grant a motion to strike the plaintiff’s evidence, [this Court] view[s] the evidence presented at trial in the light most favorable to the plaintiff and accord[s] the plaintiff the benefit of any inferences that may be fairly drawn from the evidence.” Curtis v. Highfill, 298 Va. 499, 502-03 (2023). A motion to strike tests only whether the evidence presented, thus far, would be legally sufficient to permit a jury to conclude that the plaintiff has proven the cause of action. Tahboub v. Thiagarajah, 298 Va. 366, 371 (2020); see also Sweely Holdings, LLC v. R SunTrust Bank, 296 Va. 367, 382 (2018). In assessing sufficiency after the plaintiff’s presentation of the evidence, the trial court “must not judge the weight or credibility of evidence.” Gloss, 302 Va. 258, 278 (2023) (quoting Dill v. Kroger Ltd. P’ship I, 300 Va. 99, 109 (2021)). Instead, “a trial court is required to accept as true all evidence favorable to a plaintiff and any reasonable inferences that may be drawn from such evidence.” Volpe v. City of Lexington, 281 Va. 630, 639 (2011) (quoting TB Venture, LLC v. Arlington County, 280 Va. 558, 562-63 (2010)). “Consequently, even if the plaintiff’s evidence has been discredited or impeached by the defendant during his cross-examination of the plaintiff’s witnesses, the court must accept it as true at this phase of trial.” Tahboub, 298 Va. at 371. Given this highly deferential standard and the fact that reversal of a motion to strike requires a complete retrial, the Supreme Court has “emphasized that striking a plaintiff’s case-in- chief ‘is a drastic measure with high costs to the administration of justice and should be avoided unless there is no doubt that the plaintiff has not proven any cause of action against the defendant.’” Kimberlin v. PM Transp., 264 Va. 261, 266 (2002) (quoting West v. Critzer, 238 Va. 356, 359 (1989)); see also Bartolomucci v. Fed. Ins. Co., 289 Va. 361, 373-74 (2015) (“[T]he -9- trial court should in every case overrule the motion where there is any doubt on the question.” (quoting Brown v. Koulizakis, 229 Va. 524, 531 (1985))). In general, “[a] circuit court may grant a motion to strike at the conclusion of a plaintiff’s evidence ‘only where “it is conclusively apparent that plaintiff has proven no cause of action[.]”’” Gloss v. Wheeler, 302 Va. 258, 278 (2023) (second alteration in original) (quoting Int’l Paper Co. v. County of Isle of Wight, 299 Va. 150, 170 (2020)). Applying this standard of review, we now consider the trial court’s decision to strike Bolling’s claims of retaliation and racial discrimination at the conclusion of his presentation of evidence. A. Retaliation Bolling first argues the trial court erred in granting the motion to strike his claims of retaliation by his first landlord in this matter, CH Realty. Prior to granting the motion to strike, the circuit court made comments that seemed to suggest, incorrectly, that evidence of racial discrimination was necessary to support a retaliation claim. 1. Virginia’s Retaliation Statute The Virginia Residential Landlord and Tenant Act (VRLTA), Code §§ 55-1200 et seq., guarantees Virginia’s residential tenants a wide range of non-waivable rights and remedies. Parrish v. Vance, 80 Va. App. 426, 434 (2024). Code § 55.1-1258, a section of the VRLTA, prohibits landlord retaliation. The VRLTA’s prohibition on retaliation is critical to all its other protections. Without this prohibition, tenants facing substandard housing conditions might reasonably fear that by exercising their legal rights, they would risk losing their housing.11 11 For further discussion of the important role of anti-retaliation housing laws, see, e.g., Edwards v. Habib, 397 F.2d 687, 700-01 (D.C. Cir. 1968); Parkin v. Fitzgerald, 240 N.W.2d 828, 831 (Minn. 1976); Restatement (Second) of Property § 14.9 (A.L.I. 1977). - 10 -  Under Code § 55.1-1258, a tenant may assert retaliation as a defense to an eviction (often otherwise referred to as an “unlawful detainer”) action by his landlord or affirmatively sue his landlord for retaliatory acts. Code § 55.1-1258(B). Upon prevailing, a tenant may recover actual damages, attorney fees, and other remedies including injunctive relief. Id.; Code § 55.1-1234. This Court has not yet had the opportunity to interpret the terms of the VRLTA’s anti- retaliation provision. In interpreting it, we rely on the plain language wherever possible. See Va. Dep’t of Tax’n v. R.J. Reynolds Tobacco Co., 300 Va. 446, 455 (2022) (“When a statute, as written, is clear on its face, [we] will look no further than the plain meaning of the statute’s words.” (quoting Commonwealth, Dep’t of Tax’n v. Delta Air Lines, Inc., 257 Va. 419, 426 (1999))). Where the plain language does not suffice to decide the issue, we look to related decisions by Virginia courts, as well as to other state courts’ interpretations of the same or similar language, particularly those that have adopted portions of the Uniform Residential Landlord and Tenant Act (URLTA). See Hawkins v. Town of South Hill, 301 Va. 416, 429 (2022) (treating as persuasive authority other state courts’ interpretations of related statutory language). 2. Protected Tenant Activities Code § 55.1-1258(A) prohibits a landlord from retaliating against a tenant when the landlord knows that the tenant has engaged in any of the following four activities: (i) the tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health or safety, (ii) the tenant has made a complaint to or filed an action against the landlord for a violation of any provision of this chapter, (iii) the tenant has organized or become a member of a tenant’s organization, or (iv) the tenant has testified in a court proceeding against the landlord. In this case, Bolling presented evidence that he took at least three actions protected by this section. First, he testified that he reported the uncontrolled rodent and bed bug infestations to the Department of Code Administration, Health Department, and Housing Authority. A - 11 - landlord’s failure to control such infestations can constitute a building code violation12 with a material effect on health or safety. See, e.g., Code § 55.1-1234.1 (listing “an infestation of rodents” in a “rental dwelling unit” as a condition constituting a “serious threat to the life, health, or safety of tenants or occupants of the premises”). Thus, Bolling presented evidence that he took the first protected action listed in Code § 55.1-1258(A)(i), by “complain[ing] to a governmental agency” of a violation materially affecting health or safety. For his second and third protected actions, Bolling (2) reported the uncontrolled rodent infestation to CH Realty’s building manager, Prasasouk, and then (3) filed the Tenant’s Assertion. An uncontrolled rodent or bed bug infestation can constitute a violation of the warranty of habitability established by Code § 55.1-1220, a section of the VRLTA. See Parrish, 80 Va. App. at 438, 440-41 (recognizing that Virginia’s warranty of habitability requires landlords to ensure that the premises are “livable, free from serious defects to health and safety, and have necessary qualities for habitability”). This is because such infestations may cause material harm to both quality of life and health. See, e.g., Code § 55.1-1234.1 (quoted supra); Ludlow Props., LLC v. Young, 4 Misc. 3d 515, 519-20 (N.Y. City Civ. Ct. 2004) (finding a bedbug infestation violated the warranty of habitability). Therefore, Bolling presented sufficient evidence that he performed two additional protected actions listed under Code § 55.1-1258(A), in that he (2) “made a complaint to . . . the landlord” and that he (3) “filed an action against the landlord,” in both cases alleging a “violation of [a] provision of [the VRLTA].” Code § 55.1-1258. Bolling then testified in court during his Tenant’s Assertation against the landlord. The court subsequently found that CH Realty had retaliated against him. Thus, Bolling engaged in three out of the four protected activities. 12 See Code § 36-99; 13 Virginia Administrative Code § 5-63-450; 13 Virginia Administrative Code § 5-63-520(B)(5), -(B)(17). See also City of Alexandria Code § 8-1-4 (responsibility of Department of Code Administration for such violations). - 12 -  3. CH Realty’s Actions Virginia’s retaliation provision prohibits landlords from taking certain actions in retaliation for tenants’ protected actions. These actions include “increasing rent or decreasing services or . . . bringing or threatening to bring an action for possession or . . . causing a termination of the rental agreement pursuant to § 55.1-1253 or 55.1-1410.” Code § 55.1-1258. Here, Bolling argues that he presented evidence that CH Realty took at least two such acts: (1) threatening to bring an action for possession against him and (2) decreasing his services. In December 2018, CH Realty served Bolling with a notice that alleged that he had committed certain lease violations and stated that, if he did not remedy the violations within 21 days, his lease would terminate in 30 days. The notice further stated that if Bolling did not vacate his unit after lease termination, CH Realty would “proceed with legal action” against him. Bolling argues that, in providing him with this notice, CH Realty threatened to bring an action for possession against him. CH Realty contends13 that “a notice to cure or vacate is not a 13 CH Realty additionally argues that Bolling’s arguments as to the December 2018 notice are barred by the two-year default statute of limitations provision, Code § 8.01-248. We disagree because binding Supreme Court precedent states that actions to enforce provisions of the VRLTA are actions to enforce contractual rights. Isbell v. Commercial Inv. Assocs., 273 Va. 605, 614 (2007). Contractual actions already have a designated statute of limitations under Code § 8.01-246. In Isbell, our Supreme Court authoritatively declared that “the [VRLTA] provides a comprehensive scheme of landlords’ and tenants’ contractual rights and remedies,” as a “close examination of the [VRLTA] as a whole reveal[ed] an integrated statutory scheme governing contractual relationships between landlords and tenants.” Id. at 614, 618 (first emphasis added). The Isbell Court squarely rejected the argument that actions under the VRLTA are in the nature of tort or personal injury claims. Id. See also Federico v. Lincoln Mil. Hous., LLC, 127 F. Supp. 3d 623, 646 (E.D. Va. 2015) (“A landlord entering into a lease agreement subject to the VRLTA assumes the legal duties required in the Act as if they were incorporated into the lease agreement, and a violation of the statute gives rise to a breach of contract action.” (emphasis added) (quoting Sanders v. UDR, Inc., No. 3:10-CV-459, 2010 U.S. Dist. LEXIS 106567 (E.D. Va. Oct. 4, 2010)). Bolling’s complaint, and its specific allegations regarding the December 2018 notice, complied with both the three-year limitations period applicable to actions on a “unwritten contract, express or implied” and the five-year limitations period applicable to a written, signed contract. Code § 8.01-246(A)(2), -(A)(4). Therefore, we need not determine which of the two - 13 - threat to terminate,” but instead, “is a notice to avoid being in breach of the rental agreement.” We agree with Bolling that when it issued this notice, CH Realty threatened to bring an action for possession against Bolling. CH Realty’s notice clearly conveyed to Bolling that if he did not take certain actions, CH Realty would terminate his lease and force him to vacate his unit by legal means, i.e., bring an action for possession. As a matter of everyday language, and in legal use, “threatening” is often done by way of a conditional promise to take an action if another person does not alter their behavior. This meaning is evident in this Court’s legal decisions in cases of extortion and related doctrines involving threats. See, e.g., Wood v. Commonwealth, 8 Va. App. 560, 561 (1989) (affirming extortion conviction due to evidence of the defendant “threatening to claim that [a person] had [committed a crime against] her if he did not give her the money she sought” (emphases added)); Morrissey v. Commonwealth, 16 Va. App. 172, 173, 175 (1993) (holding the evidence sufficient to show a “threat ‘calculated to embarrass, hinder, or obstruct the court in the administration of justice,’” where the defendant wrote a letter promising to take certain action “if that behavior ever, ever happens again” (emphases added)). Here, CH Realty made a conditional promise to bring an action for possession against Bolling—both explicitly and implicitly—in the December notice. The notice explicitly stated that, if Bolling did not remedy certain alleged violations, it would terminate his lease and ensure possible contractual limitations periods under Code § 8.01-246(A) applies for the purposes of this case. See R.T. v. Commonwealth, 86 Va. App. 293, 302 n.11 (2025) (“Applying judicial restraint, we resolve this [issue] ‘on the best and narrowest grounds available.’” (quoting Butcher v. Commonwealth, 298 Va. 392, 396 (2020)). Additionally, CH Realty argues that Bolling’s arguments regarding this December 2018 notice are barred by the doctrine of res judicata because Bolling mentioned the notice in a bill of particulars in his Tenant’s Assertion case, calling it retaliatory. CH Realty provides no support for its argument that Bolling could have somehow raised a Code § 55.1-1258 retaliation claim as part his Code § 55.1-1244 Tenant’s Assertion case. Therefore, its res judicata argument is without merit. - 14 - he vacated his unit, including by “proceed[ing] with legal action” against him. See Code § 55.1-1251 (permitting a landlord to bring an action for possession following lease termination). Additionally, a rational factfinder could certainly have concluded that it was implicit in the notice’s promise to terminate Bolling’s lease in 30 days, given that an action for possession is the obvious follow-up step. See id.; see also Threat, Black’s Law Dictionary (12th ed. 2024) (defining the term to include an implicit threat); Keyes v. Commonwealth, 39 Va. App. 294, 302 (2002) (holding jury was permitted to consider “the particular context” of the case to infer that the defendant intended to make an implicit threat).14 Bolling also provided testimony sufficient for a rational jury to conclude that CH Realty “decrease[d] [the] services” it was providing to him.15 Code § 55.1-1258. Bolling testified that for several months following his victory in general district court, he was prevented from using CH Realty’s online rent payment system. On brief, CH Realty points out that Bolling’s lease permitted the landlord to require payment either online or electronically. This, however, does not change the status of the online payment system as a “service” that CH Realty had been providing to Bolling before his protected actions, but subsequently deprived him of.16 Finally, Bolling 14 Recognizing that “threatening to bring an action for possession” includes implicit threats is also consistent with other courts’ observations that this language also covers the issuance of lease nonrenewal notices. See Van Buren Apts. v. Adams, 701 P.2d 583, 586 (Ariz. Ct. App. 1984); Houle v. Quennville, 787 A.2d 1258, 1263 (Vt. 2001). 15 On brief, CH Realty argues that Bolling conceded that he lacked evidence as to whether his services were decreased in his requests for admission prior to trial. However, Bolling’s testimony at trial shows that he interpreted “services,” in that context, to refer specifically to “amenities,” such as the “gym.” Given this apparent misunderstanding, it would be improper for this Court to attempt to bind Bolling to this purported admission. Here, as noted, the record clearly demonstrates evidence of decreased services. 16 If CH Realty’s arguments are intended to suggest that any action that is retaliatory under Code § 55.1-1258 must also be otherwise prohibited by lease or law, this argument fails for several reasons. First, no such limitation appears in the plain language of the statute, and we will not add terms to plain, unambiguous language. Haefele v. Commonwealth, 75 Va. App. 591, 600 (2022). Further, we generally presume, in the absence of clear evidence to the contrary, that - 15 - testified that on certain occasions, his name was removed from the list of tenants eligible to receive pest control services, and that he was thereby prevented from receiving those services. A rational factfinder, accepting Bolling’s testimony as true, could conclude that this act, and the prevention of Bolling from accessing the online payment portal, constituted decreases in services. Code § 55.1-1258.17 4. Retaliatory Intent Having established that Bolling provided sufficient evidence that his and CH Realty’s actions were of the type described by Code § 55.1-1258(A), the only remaining question is whether Bolling presented sufficient evidence of retaliatory intent. Under Code § 55.1-1258(B), a tenant has “the burden of proving retaliatory intent.” “Intent is a question to be determined by the fact finder.” Cirrito v. Cirrito, 44 Va. App. 287, 305 (2004). In assessing whether a landlord possesses retaliatory intent, a factfinder must generally rely on circumstantial evidence. See Teel v. Teel, 86 Va. App. 227, 236 (2024) (“[I]t is well established that intent must generally be proved by circumstantial evidence.”); see also Mullins v. Va. Lutheran Homes, 253 Va. 116, 119 (1997) (noting, in Workers’ Compensation retaliation the General Assembly did not intend to render statutory provisions meaningless. Baker v. Commonwealth, 278 Va. 656, 661 (2009). Such an interpretation, therefore, would also be disfavored because it would essentially render the remedies under Code § 55.1-1258—which mirror those available for other landlord breaches of the VRLTA—meaningless. See Code § 55.1-1258(B). 17 The retaliation statutes, Code §§ 55.1-1258 & 55.1-1314, were amended by HB 329, which struck the sentence in subparagraph (B) that read, “The burden of proving retaliatory intent shall be on the tenant.” See https://lis.blob.core.windows.net/files/1225687.PDF. This bill does not become effective until January 1, 2027, and therefore does not impact our decision in the present case. - 16 - claims, a jury must “ordinarily” determine retaliatory motive on the basis of “circumstantial, rather than direct, evidence”).18 CH Realty argues that the allegations in its December 2018 notice show that it intended to respond to Bolling’s breach of his lease agreement, not to retaliate against him. CH Realty’s position is incongruent with our standard of review. Because Bolling unequivocally testified that the allegations in this notice—that Bolling breached his lease by acting in a manner that was generally “loud” and “disrespectful”—were untrue, we regard these allegations as untrue for the purposes of our review of the motion to strike. See Curtis, 298 Va. at 502-03; Gloss, 302 Va. at 278. The truth of CH Realty’s claimed alternative reason is for the factfinder, not a court on the motion to strike, to determine. Cf. Mullins, 253 Va. at 120 (“An employer’s articulated reasons for discharging an employee are merely evidence relevant to the issue of the employer’s motivation, which the jury is entitled to consider along with all the other evidence. . . .”). At this stage, the evidence in this case was more than sufficient to reach a jury and for the jury to determine whether CH Realty possessed a retaliatory intent when it threatened to bring an action for possession against Bolling and decreased his services. First, Bolling presented evidence that CH Realty’s adverse actions followed soon after Bolling’s protected actions. Less than two weeks separated Bolling’s Tenant’s Assertion and CH Realty’s threat to bring an action for possession. Further, CH Realty’s decreases in services came in the months following’s Bolling’s victory in his Tenant’s Assertion suit, wherein the general district court made a finding that CH Realty’s continued placement of late notices on his 18 Accord Robert S. Schoschinski, American Law of Landlord and Tenant 729 n.55 (1977) (noting that proof of a landlord’s retaliatory motive “rests almost entirely on circumstantial evidence,” as, “[a]lthough the rare case will involve direct evidence, such as threatening statements by the landlord, the more common scenario will be tenant complaints of housing conditions or other protected activity followed closely by a notice to quit or of a rent increase”). - 17 - door was retaliation for his filing the suit.19 This close temporal proximity is significant circumstantial evidence that a jury was entitled to consider in assessing retaliatory intent. See Mullins, 253 Va. at 120 (holding evidence sufficient to present a jury question as to motive, in part, because “the evidence showed that Mullins was discharged about one month after filing her workers’ compensation claim”);20 see also Elk Creek Mgmt. Co. v. Gilbert, 303 P.3d 929, 942 (Or. 2013) (holding evidence sufficient to show retaliatory intent due to “the temporal connection between the tenants’ complaint and the owner’s decision to evict them”); Gokey v. Bessette, 580 A.2d 488, 492 (Vt. 1990) (holding evidence sufficient to support finding of retaliatory intent where a landlord’s adverse actions followed closely after a tenant’s protected activities); Robert S. Schoschinski, American Law of Landlord and Tenant 729 n.55 (1977). Second, Bolling presented evidence of CH Realty’s negative attitude towards the underlying issues giving rise to Bolling’s complaints and towards Bolling’s engagement in protected activities. Bolling testified that, when he reported the uncontrolled pest infestation to the building manager, Prasasouk repeatedly responded in a dismissive and i