Lawyer still pursuing moldy apartments class action even after judge vacated it

By Steve Korris | Feb 14, 2008


Lanny Darr of Alton won't give up on a moldy class action suit that Madison County Circuit Judge Andy Matoesian threw out last fall.

Darr wants Matoesian to vacate a summary judgment order he entered in a suit against owners and managers of the Bissell Apartments in Venice.

Plaintiff Kesha Manning alleges that mold damaged her personal property, but she has not identified a single item that mold damaged.

Matoesian declared at a Nov. 2 hearing that, "There is no question of fact and she does not have any damage."

Now he'll hold another hearing. He has set Darr's motion to vacate for Feb. 22.

The motion states, "The Court ignored evidence in the record which created a triable fact as to whether plaintiff's property was damaged by mold."

Matoesian ignored evidence that mold damaged walls and stud boards surrounding Manning's personal property, Darr argued.

Matoesian ignored evidence that Manning's apartment required mold abatement, Darr argued.

Matoesian ignored an affidavit of hygienist Patrick Harter stating that mold contaminated Manning's personal property, Darr argued.

In response, Bissell Apartments owner BA-2003 Limited Partnership and manager Independent Management Services accuse Darr of filing a motion for reconsideration under another name.

"A reconsideration motion – by whatever name it is presented to the Court – is not an occasion for mere reargument and this Court ruled correctly the first time," wrote Troy Bozarth of Edwardsville.

Manning has lived at Bissell Apartments since 2000.

In 2005 she sued former owners Bissell Apartments Limited and former manager Westmark Management, along with current owners and managers.

Darr proposed to certify Manning as representative of a class of all Bissell Apartment residents with mold damage.

When defendants asked for a list of damaged items, Manning submitted a list of everything in the apartment including mops, garbage cans and a fish tank.

Hygienist Harter's affidavit didn't identify damage either, according to Bozarth.

Harter swore that, "As a result of the conditions inside Kesha Manning's apartment, her personal property has been damaged by mold contamination."

Bozarth, in a Jan. 8 brief, called Harter's conclusion pure speculation.

"He does not say what property was in the apartment, what property he thinks was contaminated, when the contamination might have occurred, in which of the two apartments Manning occupied it might have occurred, or what the extent of the contamination might have been," Bozarth wrote.

Harter conducted no tests on personal property, Bozarth wrote.

"Yet Manning incorrectly insists that the Court must infer damage to the personal property from the alleged existence of mold in the apartment itself," Bozarth wrote.

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