Kennedy v. Dabbiere

 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division KERRY KENNEDY, ) Plaintiff, ) Vv. Civil Action No. 1:20-cv-00882 (AJT/MSN) ALAN J. DABBIERE, Defendant. ) MEMORANDUM OPINION AND ORDER Plaintiff Kerry Kennedy (the “Plaintiff” or “Kennedy”) seeks to recover a large lawn urn, with a judicial declaration that the urn is her personal property. The urn is physically located on the grounds of the former home of Plaintiffs father and mother, the late Senator Robert F. Kennedy and Mrs. Ethel Skakel Kennedy (“Mrs. Kennedy”), known as Hickory Hill in McLean, Virginia, which is currently owned by Defendant Alan J. Dabbiere (the “Defendant” or “Dabbiere”). [Doc. No. 13] (the “Amended Complaint” or “Am. Coml.”). The parties have filed cross motions for summary judgment [Doc. Nos. 51, 52] (collectively, the “Motions” or “Mots.”).' There are no genuine issues of material fact, and for the reasons stated below, Plaintiff is entitled to judgment as a matter of law. Plaintiff's Motion is therefore GRANTED; and Defendant’s Motion is DENIED. I. BACKGROUND Unless stated otherwise, the following facts are undisputed: i Plaintiff seeks summary judgment as to Counts I and I] of her Amended Complaint and also on Defendant's Counterclaim and Affirmative Defenses. See [Doc. No. 52] (Plaintiff Kerry Kennedy’s Motion for Summary Judgment and to Dismiss). Defendant seeks summary judgment as to Counts | and I] of Plaintiff's Amended Complaint. See [Doc. No. 51] (Defendant’s Motion for Summary Judgment). 1. A nearly six foot tall, five foot wide ornamental lawn urn, depicted below, sits in front of Hickory Hill, in McLean, Virginia (“Hickory Hill”) (the “Urn”). Am. Compl. £ 3; [Doc. No. 55] (“Defendant's Memorandum” or “Def.’s Mem.”) at 12; [Doc. No. 53] (“Plaintiff's Memorandum” or “Pl.*s Mem.”) at 3. At. ay AR rena ve te a e “ Yer YP □□ ee pe oS i a aS. is oe = = Fh Bee □□□ my i at ae □ a ro Ch 7 Pr Py i □ fale OE fae eo ia te | ee toe, | 7 ag □ oy i a? i a ote ee ad © al: a = ae sie oe Ae : a 5 a ee 24 Ps , aT ie 7 i Wd a ne La) . i i 7 i ai La or” Alaa □ _ j | ; : als Mee ’ : | Poa .@ ~ Se er oe {pera a‘? >a hae ise: Ri oe Acme □ A yh □ a SV ee ea iis oO : ihm ey a ue > a a be □□ a □□ all > □□□ i ane Le a : ae Pee by el ES et Seana Am. Compl. at 3; Pl.°s Mem. 8. 2. The Urn has been situated on the Hickory Hill property, and in front of the residence, since at least 1941. Def.’s Mem. at 12; Pl.’s Mem. 3. 3. On July 3, 1941, the Honorable Robert J. Jackson, then nominated to the U.S. Supreme Court, signed a memorandum with Leo and Leonora Rocca, the then owners of the Hickory Hill property (the “1941 Memorandum”), which provided: This memorandum of understandings reached between Mr. Rocca and myself constitutes a part of the purchase agreement for the property at Langley. Virginia, known as Hickory Hill. The following personal property will remain with the real estate and become the property of the purchaser: Lawn mower, trailer, tractor, and /awn urn, and the following items in the house: Hall, stair, and master bedroom carpets; attic table and benches: gas stove and refrigerator in the kitchen; and the piano. While we anticipate no such event, it is understood that I have no use for the property except in event that my pending nomination is confirmed. In event of failure of confirmation, the purchase will not be effective. [Doc. No. 55-5] at 2 (emphasis added); Def.’s Mem. at 12-13; Pl.’s Mem. 3. 4. The “lawn urn” identified in the 1941 Memorandum is the Urn at issue in this lawsuit. Def.’s Mem. at 13; Pl.’s Mem. 3. 5. Since the 1940s, the Hickory Hill property has conveyed in six real estate transactions: a. Leo and Leonora Rocca conveyed the property to the Honorable Robert and Mrs. Irene Jackson by deed dated July 9, 1941; b. The Honorable Robert and Mrs. Irene Jackson conveyed the property to the Honorable Robert Jackson individually by deed dated January 10, 1944; c. The executors and heirs of the estate of the Honorable Robert Jackson conveyed the property to John F. Kennedy by deed dated October 15, 1955; d. John F. Kennedy and Jacqueline B. Kennedy conveyed the property to Joseph Kennedy by deed dated January 2, 1957; e. Joseph P. Kennedy and Rose F. Kennedy conveyed the property to Mrs. Kennedy individually by deed dated January 8, 1965; and f. Mrs. Kennedy conveyed the property to Mr. Alan Dabbiere by deed dated December 23, 2009. Def.’s Mem. at 13-14; Pl.’s Mem. 3. 6. During the time that Plaintiff resided at Hickory Hill, the Urn was held in place by gravity on top of grass without any other form of attachment. Def.’s Mem. at 14; Pl.’s Mem. 3,7. 7. On or about December 17, 2009, Defendant and Mrs. Kennedy entered into a Purchase Agreement for the sale of the Hickory Hill property and the sale was finalized on December 23, 2009. Def.’s Mem. at 14-15; Pl.’s Mem. 3. Paragraph B of the Recitals to the Purchase Agreement states: Purchaser desires to acquire such real property, and Seller desires to sell such real property, together with all right, title and interest of seller, if any, to the extent same may be appurtenant to such real property, with respect to any land lying in the bed of any existing, dedicated street, road or alley, all strips and gores adjoining thereto and all appurtenances, tights, privileges, licenses, easements, rights-of-way, covenants, development rights, tenements, or hereditaments incident thereto (collectively, the “Land”), and also including the improvements situated thereon, and all right, title and interest of Seller, in and to those fixtures situated thereon and used in connection with such improvements (excluding however, the excluded personal property described on Exhibit F attached hereto), (such improvements and fixtures, exclusive of the excluded personal property, collectively, the “Improvements”). The Land and Improvements are hereinafter referred to as the “Property”). Def.’s Mem. at 15; [Doc. No. 55-11] at 2 (emphasis added). 8. Defendant agreed to allow Mrs. Kennedy to reside at the property after its sale through May 31, 2010. Def.’s Mem. at 7; Pl.’s Mem. 7-8; [Doc. No. 59] (“Defendant’s Opposition” or “Def.’s Opp’n.”) at 9. 9. Sometime between April and May of 2010, but before Mrs. Kennedy’s departure from Hickory Hill on May 31, 2010, Mrs. Kennedy allowed each of her children to choose three items from Hickory Hill. Plaintiff chose the Urn as one of the three items. Def.’s Mem. at 16; Pl.’s Mem. 8.” 10. On June 4, 2010, shortly after Mrs. Kennedy vacated Hickory Hill, Defendant and Mrs. Kennedy’s personal assistant, Anne C. Phelan (“Phelan”), exchanged emails regarding Plaintiff's retrieval of the Um. [Doc. No. 55-13]; Def.’s Opp’n. at 4. Phelan stated that “a fellow that works with [Plaintiff], was coming to pick [the Urn] up this week . . . however, no one has called ? See also [Doc. No. 58-3] (“Declaration of Anne C. Phelan” or “Phelan Decl.”) at 2-3 (declaration of Mrs. Kennedy’s personal assistant describing the process by which Mrs. Kennedy ‘“‘distribut[ed] and ma[de] gifts of her personal property . . . [to] each of her nine living children . . . includ[ing] . . . to Kerry Kennedy . . . the lawn um at issue in this case”); [Doc. No. 53-25] at 2-3 (March 17, 2010 Memorandum to Mrs. Kennedy’s children discussing the “Division of Personal Property”); [Doc. No. 58-3] at 10, 15, 19, 22 (listing “Urm/Hammersmith Farm” under “Kerry Kennedy”); [Doc. No. 53-26] at 9 (listing “Hammersmith Farm urn” under “FOR LOTS” and “Items of Personal Value from Hickory Hill”); [Doc. No. 53-27] at 6 (listing “Urn (Hammersmith Farm)” under “Kerry: LOT 3”); [Doc. No. 55-12] at 2 (May 22, 2010 emai! between Anne Phelan and Kerry Kennedy describing the value of the um and cost of transporting it); [Doc. No. 53-4] and [Doc. No. 58-2] (“Kerry Kennedy Declaration” or “PI. Decl.”) at 5-21. 45 [Phelan] back.” [Doc. No. 55-13] at 3; Def.’s Opp’n. at 4. Defendant responded that he “want[ed] to go on the record saying the urn should stay . . . and that we are confident that the intent of both parties was for it to convey as part of the sale.” [Doc. No. 55-13] at 2; Def.’s Opp’n. at 4. The parties, through counsel, then exchanged a series of emails and letters discussing their respective positions on whether the Um conveyed with Hickory Hill as a fixture. [Doc. No. 55-14] (June 14, 2010 Letter from law firm Arent Fox on behalf of Mrs. Kennedy). 11. On June 16, 2010, following a telephone conversation with Plaintiff, Defendant entered into an agreement with Plaintiff, which was communicated via email, and signed by Defendant (the “2010 Agreement”), which stated, in pertinent part: Kerry, the purpose of this email is to memor[ialize] our conversation that the Urn in the front of Hickory Hill will remain as your property and we give up any rights to it conveying with the property and in exchange you agree that the Urn will stay in its current place for 10 years from today’s date—June 16th, 2010. At that time you are free to take the urn. | will sign a copy of this email and send you a signed PDF version via email. pet's Mem. at 12; Pl.’s Mem. at 9; [Doc. No. 53-9] and [Doc. No. 55-15]; Def.’s Opp’n. at 12. Following his purchase of Hickory Hill in December, 2009, Defendant from 2011 to 2013 included a circle brick paved driveway. Pl.’s Mem. at 9; [Doc. No. 53-8] at 27; [Doc. No. 53-13] at 8. 13. In 2016, Carole Herrick published the book titled “Hickory Hill, McLean, Virginia, A Biography of a House and Those Who Lived There” (the “Herrick Book”), for which Defendant had provided Herrick with photographs and access to Hickory Hill. For her part, Herrick had obtained a copy of the 1941 Memorandum, and provided a copy to Defendant sometime in 2015 or 2016. Defendant reviewed the book before it was published, editing some of its text and received and read a copy of the book after it was published. [Doc. No. 53-13]; [Doc. No. 53-11]; [Doc. No. 53-8] at 7-12, 33. 14. The Herrick book stated that the 1941 Memorandum “itemized personal property that would be left behind [following the sale of the property to Justice Jackson]. Included were such items as... [a] large lawn urn... .” [Doc. No. 53-13] at 6. Included in the Herrick Book on page 104 is the following photograph with the caption: “This is Hickory Hill as it looked in 2000 .... To the left is the yard urn that Justice Jackson requested be conveyed with the sale of the house.” [Doc. No. 53-13] at 7. mae A> a 5 z. + cd m2 j 1m2—i- Gi a lo ee □□ Pi we Be □ Se Id. (picture on page 104). Also included in the Herrick Book on page 126 is the following photograph with the following caption: “Shown above is the newly created brick paved vehicular circle driveway in front of the house. The large landscape urn in the center was moved from a location near the front of the house not too far from the flagpole. This is the same outdoor urn that Justice Jackson asked to be conveyed with the house when he purchased Hickory Hill in 1941.” [Doc. No. 53- 13] at 8. a tt Ae SS ec Aili ee bre | ee : a ete ‘i Le oe ae a SS ta : a x a ia 4 vr por oF hay ie ; | ai eS “ar >? iho 7: — ae. 4 : 7 en snail i ‘9 pital Com - Pts i Ss rs a eae 7 a Pe 5 a ae NN) tae ee rn } H PN □ . eta 3 nt ls eebstcuaianaan tee. = os = = Earn 2a Serres ee —_ . . - □□ ~=— . " = (picture on page 126). 15. On April 2, 2018, Plaintiff approached Defendant regarding obtaining early possession of the Urn. Plaintiff wrote: Dear Alan, Nice to hear from you... . I’ve been thinking of contacting you as I recently purchased a home in Hyannis port and plan to place the cache pot in the front yard. I know we agreed to ten years and that anniversary is in 2019 [sic]. If it makes no difference to you Id love to fetch it earlier. At any rate I’ll need to make arrangements next year. | believe you removed it during reconstruction. Any thoughts on best way to remove it again?” [Doc. No. 53-14] at 3-4. 16. Thereafter, between April and November 2018, Plaintiff and Defendant exchanged a series of emails wherein Defendant discussed his efforts to replace the Urn with a replica, [Doc. No. 53-15] at 2,° and his interest in developing an “acceptable arrangement . . . to keep the 3 See also [Doc. Nos. 53-16, 53-17, 53-18] (emails discussing the purchase of a replacement for the Urn between April and November 2018), existing urn in place.” [Doc. No. 53-14] at 2-3. Plaintiff responded that “there is no financial compensation that [could] replace [the Urn].” /d. at 2. 17. Then, in a letter to Plaintiff on May 18, 2020, Defendant stated: Dear Kerry, ... 10 years ago when you reached out I had said that I felt the urn had conveyed with the property and that I felt it was an important piece of the history of the property that should stay here. ... At that time you told me the story that the urn had come from Hammersmith and was a gift from your Aunt Jackie, and that it had great sentimental value to you due to that history. Based on this story I agreed to your request and we made the 10 year agreement. Since then I have discovered some additional pieces of information that are attached. I am confident the urn was in fact on the property when the house conveyed from the Rocca family to the Jackson family, and then on to the John Kennedy family. Please take a look and can we discuss this when convenient. [Doc. No. 53-20]. 18. On May 19, 2020, Defendant emailed Plaintiff and stated that he originally agreed to let [Plaintiff] take the urn based on [her] description of the history that it was from Hammersmith and brought here by your Aunt Jackie [i.e. Jacqueline Kennedy], and that this created a very special attachment. . . [t]his has turned out to not be the accurate history and consequently I am confident that the urn should stay here on the property. [Doc. No. 53-21] at 2; see also Def.’s Opp’n. at 5-7. No resolution was reached and on July 31, 2020, Plaintiff filed suit against Defendant [Doc. No. 1] based on diversity jurisdiction pursuant to 28 U.S.C. § 1332,* seeking, inter alia, specific performance of the 2010 Agreement (Count I) and a declaratory judgment that the Urn is personalty that belongs to Plaintiff (Count II). Am. Compl. at 10-12. On January 13, 2021, the Court issued an Order denying Defendant’s motion to dismiss Count II for lack of jurisdiction. [Doc. No. 35]. On January 27, 2021, Defendant filed his Counterclaims, Answer, and Affirmative Defenses to Plaintiff's First Amended Complaint [Doc. No. 37] asserting counterclaims for recission of the 2010 Agreement based on mutual mistake (Counterclaim * Both Plaintiff and Defendant agree that the Urn is valued in excess of $75,000. Am. Compl. 4 4; [Doc. No. 55] at 26. 9g Count I), fraudulent inducement (Counterclaim Count II), and unclean hands and equitable estoppel (Counterclaim Count III), together with affirmative defenses on those same grounds as well as lack of consideration. On March 12, 2021, Defendant and Plaintiff filed their respective Motions for Summary Judgment. [Doc. Nos. 51-52]. The Motions were fully briefed,* and a hearing was held on the Motions on April 14, 2021, following which the Court took the Motions under advisement. Il. LEGAL STANDARD Summary judgment is appropriate only if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 958-59 (4th Cir. 1996). The party seeking summary judgment has the initial burden to show the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Thus, to defeat a properly supported motion for summary judgment, the non-moving party “‘must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 247-48 (“[T]he mere existence of some alleged 5 See [Doc. No. 55] (“Defendant’s Memorandum” or “Def.’s Mem.”); [Doc. No. 53] (“Plaintiff's Memorandum” or “Pl.’s Mem.”); [Doc. No. 58] (“Plaintiff's Opposition” or “PI.’s Opp’n.”); [Doc. No. 59] (“Defendant’s Opposition” or “Def.’s Opp’n.”); [Doc. No. 61] (“Plaintiff's Reply” or “Pl.’s Reply.”); [Doc. No. 60] (“Defendant’s Reply” or “Def.’s Reply”). 10 factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”). Whether a fact is considered to be “material” is determined by the substantive law, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” /d. at 248. The facts shall be viewed, and all reasonable inferences drawn, in the light most favorable to the non-moving party. /d. at 255; see also Lettieri v. Equant Inc., 478 F.3d 640, 642 (4th Cir. 2007). In a non-jury case such as this one, “‘a district court has somewhat greater discretion to consider what weight it will accord the evidence.” S. Snow Mfg. Co. v. SnoWizard Holdings, Inc., 11 F. Supp. 3d 672, 681 (E.D. La. 2013) (citing Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 676 (5th Cir. 2010) (citing /n re Placid Oil Co., 932 F.2d 394, 397 (Sth Cir. 1991))). “When deciding a motion for summary judgment prior to a bench trial, the district court ‘has the limited discretion to decide that the same evidence, presented to him or her as a trier of fact in a plenary trial, could not possibly lead to a different result.’” /d. (quoting Jn re Placid Oil Co., 932 F.2d at 398). “Therefore, the Court may draw inferences from the evidence before it in deciding the motion for summary judgment.” /d. at 681 n.68 (“The district court, as the trier of fact, was permitted to draw inference from this evidence to conclude that Johnson failed to present sufficient evidence of ‘reporting’ a violation of law.”); see also Cincinnati Ins. Co. vy. Norfolk Truck Ctr., Inc., 430 F. Supp. 3d 116, 119 (E.D. Va. 2019) (citing /nternational Bancorp, LLC v. Societe des Bains de Mer et du Cercle des Estrangers a Monaco, 329 F.3d 359, 362 (4th Cir. 2003) (“It makes little sense to forbid the judge from drawing inferences from the evidence submitted on summary judgment when that same judge will act as the trier of fact, unless those inferences involve issues of witness credibility or disputed material facts. If a trial 11 on the merits will not enhance the court’s ability to draw inferences and conclusions, then a district judge properly should draw his inferences without resort to the expense of trial.” (quoting /n re Placid Oil Co., 932 F.2d at 398)). If. ANALYSIS Plaintiff has filed a two count First Amended Complaint asserting a claim for specific performance of the 2010 Agreement (Count 1) and, alternatively, for a declaration that the Urn is personal property that belongs to her. Defendant has filed a three count counterclaim for recission of the 2010 Agreement based on mutual mistake (Count I), fraudulent inducement (Count II), and unclean hands and equitable estoppel (Count III). He has also challenged the enforceability of that contract by way of the affirmative defenses of (1) lack of consideration; (2) mutual mistake of fact; (3) fraud and misrepresentation; and (4) unclean hands and equitable estoppel. Accordingly, this case revolves around the following inquiries: whether the parties entered into an enforceable contract, namely, the 2010 Agreement; if so, whether Defendant has established grounds for recission of that contract; and if so, whether the Urn is a fixture that conveyed to Defendant with the sale of Hickory Hill or whether it is personalty that belongs to the seller, i.e., to Mrs. Kennedy, as the prior owner of Hickory Hill, or the Plaintiff, as the donee of the Urn as a gift from its owner. As discussed below, there are no genuine issues of material facts, and as a matter of law, the 2010 Agreement is a valid enforceable agreement, Defendant has failed to establish any grounds for recission, and Plaintiff is entitled to specific performance. Alternatively, were the contract unenforceable for any reason, the Urn constitutes personal property that belongs to Plaintiff. A. The 2010 Agreement is supported by adequate consideration. 12 The 2010 Agreement is an enforceable agreement on its face, and Defendant does not contend otherwise. There is also no dispute over whether Plaintiff has fully performed, whether the Defendant has breached the contract, or whether Plaintiff has suffered a cognizable damage as a result of the breach.® Rather, Defendant contends that the 2010 Agreement is not enforceable because it is not supported with adequate consideration. See Powell v. Bank of Am., N.A., 2011 WL 6130806, at *2 (E.D. Va. Dec. 8, 2011) (“An enforceable contract requires mutual assent and mutual consideration.”’) (citing Plaskitt v. Black Diamond Trailer Co., 164 S.E.2d 645, 653 (Va. 1968)). That contention is based on the claim that “Plaintiff cannot establish that she has any valid ownership rights in the urn. . ., rendering the June 2010 Agreement unenforceable for lack of consideration.” Def.’s Mem. at 30. In that regard, Defendant contends that (1) at time he purchased Hickory Hill in December, 2009, the Urn was a fixture that conveyed to Defendant with that purchase and Mrs. Kennedy therefore never had the legal ability thereafter to transfer ownership of the Urn to Plaintiff through gifting or otherwise; and (2) even if the Urn constituted personal property, there is insufficient evidence that Mrs. Kennedy in fact gifted the Urn to Plaintiff. Alternatively, Defendant argues that “even if Plaintiff could show valid ownership rights in the urn (which she cannot), there is no evidence of the ‘absolutely essential’ agreement from Plaintiff that she will forebear in her exercise of a valid legal right.” /d. at 31. In other words, Defendant contends that Plaintiff did not give up anything of sufficient value when she entered into the 2010 Agreement. Whether consideration is adequate is a question of law for the court. Veilleux vy. Merrill Lynch Relocation Mgmt., Inc., 226 Va. 440, 446 (1983). ® Under Virginia law, to prevail on a claim for breach of contract, a plaintiff must demonstrate that (1) the parties entered into a valid agreement; (2) the defendant breached his obligations thereunder; and (3) the plaintiff suffered damage or injury as aresult. JTH Tax, LLC, v. Shahabuddin, 477 F. Supp. 3d 477, 481 (E.D. Va. 2020); Hamiet v. Hayes, 64] S.E.2d 115, 117 (Va. 2007). 132 1. The Urn is personal property, not a fixture. “In the absence of any specific agreement between the parties as to the character of a chattel placed upon the freehold, the three general tests are as follows: (1) Annexation of the chattel to the realty, actual or constructive; (2) Its adaptation to the use or purpose to which that part of the realty to which it is connected is appropriated; and (3) The intention of the owner of the chattel to make it a permanent addition to the freehold.” Ferguson v. Stokes, 287 Va. 446, 453-54 (2014) (citing Danville Holding Corp. v. Clement, 178 Va. 223, 231-32 (1941)). Virginia law recognizes that “[t]he intention of the party making the annexation is the paramount and controlling consideration.” Jd. The 2010 Agreement is silent as to the character of the Urn; and the parties have not otherwise agreed. “ or obtain possession of the Urn for over a year from when she was entitled to regain possession. Defendant is therefore barred from asserting his rescission claim in either Counts I and II of his Counterclaim.'® 2. The 2010 Agreement was not based on mutual mistake. Defendant claims that Plaintiff “persuad[ed] Defendant to relinquish his ownership of the urn as the purchaser of Hickory Hill, [by] represent[ing] that (1) the urn was a family heirloom of her aunt Jacqueline Kennedy and (ii) the urn had been brought to Hickory Hill when Mr. and Mrs. John F. Kennedy purchased it in 1955.” Def.’s Opp’n at 15. Based on that contention, Defendant claims that the parties entered the 2010 Agreement based on a mutual mistake of fact, namely, that the Urn was moved to Hickory Hill from Hammersmith. /d. 'S See 16 Michie’s Jurisprudence of Virginia and West Virginia, Rescission, Cancellation, and Reformation § 16 (2010) (“[A person demanding rescission of a contract must restore or offer to restore the other party that which he may have received under the contract.”). Given that Defendant has received the full benefit of his bargain, it would be difficult to restore to Plaintiff over ten years of lost possession and enjoyment of the Um, were the 2010 Agreement rescinded. /d. (“Equity is always reluctant to rescind unless the parties can be put in status quo.”). '6 To the extent that any contrary inferences could reasonably have been drawn by a fact finder, the Court, in its limited discretion in this non-jury case, would find, based on the same evidence that would be presented at trial, that Defendant is barred under the doctrine of laches from asserting his rescission claims in Counts | and II. See Cincinnati Ins. Co.,430 F. Supp. 3d at 119 (citing /nternational Bancorp, LLC, 329 F.3d at 362 (“It makes little sense to forbid the judge from drawing inferences from the evidence submitted on summary judgment when that same judge will act as the trier of fact, unless those inferences involve issues of witness credibility or disputed material facts. Ifa trial on the merits will not enhance the court’s ability to draw inferences and conclusions, then a district judge properly should draw his inferences without resort to the expense of trial.” (quoting /n re Placid Oil Co., 932 F.2d at 398)). 26 A mutual mistake of fact gives rise in equity to a right of rescission. Hensley v. Dreyer, 247 Va. 25, 30 (1994). But “the mutual mistake [must be] in a matter which is the cause or subject of the contract—that is, in the substance of the thing contracted for[,]” Briggs v. Watkins, 70 S.E. 551, 554 (Va. 1911) (emphasis added). See also Jennings v. Jennings, 12 Va. App. 1187, 1192 (1991) (“The mistake may be common to both parties to a transaction, and may consist either in the expression of their agreement, or in some matter inducing or influencing the agreement, or in some matter to which the agreement is to be applied. Nothing is more clear in equity than the doctrine that a contract founded in mutual mistake of the facts constituting the very basis or essence of it will avoid it.”) (emphasis added and quoting Briggs, 70 S.E. at 554); McCarthy v. Bayliss, Chry., 1987 WL 488700, *2 (Va. Cir. Ct. Aug. 19, 1987) (“[T]he mistake must be material to the transaction, affecting the very substance of it and not merely incidental matter”); Holderby v. Harvey C. Taylor Co., 104 S.E. 550, 552 (W.Va. 1920) (“It is not permitted for a casual, technical, or unimportant breach or failure of performance, but only for a breach so substantial as to tend to defeat the very object of the contract, and in practically all cases of rescission it is held that restoration of the status quo is an essential prerequisite to the right to rescind.”) (cited by Bolling v. King Coal Theatres, Inc., 41 $.E.2d 59, 62 (Va. 1947)). Moreover, “[t]o prove a mutual mistake, the challenging party, . . . bears a high degree of proof.” Tiger Fibers, LLC v. Aspen Specialty Ins. Co., 594 F. Supp. 2d 630, 644 (E.D. Va. 2009) (stating that the challenging party “must show that ‘there has been a meeting of minds—their agreement actually entered into, but the contract . .. does not express what was really intended by the parties thereto’” (citing to Dickenson Cty. Bank v. Royal Exch. Assur. of London, England, 157 Va. 94, 103 (1931))). 97 Nothing in the 2010 Agreement states why or for what reasons the agreement was made. See Baum v. Whitehorse Marine, Inc., 46 Va. Cir. 527 (1996) (“[A] party’s subjective intent, undisclosed at the time of contracting, can never form the basis of contract”). There is no contention that the 2010 Agreement did not state accurately what the parties agreed to or intended; and Plaintiff's statement as to the Urn’s provenance had nothing to do with whether the Urn was personal property or a fixture. Nor does Defendant challenge the truth of Plaintiff's overall point that the Urn had sentimental value to the Plaintiff because of its association with her family and her growing up at Hickory Hill. Nor is there any evidence that somehow Defendant's enjoyment of the Urn during the ten year period he was entitled to retain the Um had anything to do with where it came from originally. In short, the alleged mutual mistake had nothing to do with the substance of the contractual bargain and did not affect the performance of that contract. See McCarthy, 1987 WL 488700, *2. Plaintiff has fully performed, as Defendant expected, and Defendant continued to receive and enjoy the full benefits of precisely what he bargained for, even after he learned that the Urn had not been brought by the Kennedy family to Hickory Hill. For all these reasons, Plaintiff is entitled to judgment as a matter of law on Defendant’s recission claim based on mutual mistake. 3. Defendant was not fraudulently induced into entering the 2010 Agreement. Defendant next seeks recission of the 2010 Agreement on the grounds that he was fraudulently induced into the 2010 Agreement by Plaintiff's misrepresentation as to the Urn’s origins. To prevail on a claim of fraud in the inducement under Virginia law, a party must prove by clear and convincing evidence a (1) false representation of material fact; (2) made intentionally, in the case of actual fraud, or negligently or innocently, in the case of constructive 28 fraud; (3) reliance and detriment; and (4) inducement to enter the contract. Ly v. Tran, No. 2017 WL 4002721, at *7 (E.D. Va. Aug. 23, 2017), report and recommendation adopted sub nom. Yen Kin Ly v. Dung Quoc Tran, 2017 WL 3981432 (E.D. Va. Sept. 11, 2017) (citing Murphy v. Capella Educ. Co., 589 F. App’x 646, 652 (4th Cir. 2014)). As discussed above, Defendant has conceded that there is no evidence that Plaintiff knew that the Urn had come from Hammersmith and has based his fraudulent inducement claim solely on constructive fraud, which requires only that Plaintiff's statement was false and material. See Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d 614, 628 (4th Cir. 1999) (under Virginia law the fraud exists when the misrepresentation was made negligently or innocently). While the evidence is that it was false, for essentially the same reasons stated with respect to Defendant’s mutual mistake defense, Plaintiff's misstatement as to the Urn’s origins were not material to the 2010 Agreement. It had nothing to do with whether the Urn was personalty or a fixture and had nothing to do with Defendant’s ability to receive precisely what he had bargained for. IV. CONCLUSION Accordingly, for the foregoing reasons, it is hereby ORDERED that Defendant Alan J. Dabbiere’s Motion for Summary Judgment (Doc. No. 51] be, and the same hereby is, DENIED; it is further ORDERED that Plaintiff's Motion for Summary Judgment and to Dismiss [Doc. No. 52} be, and the same hereby is, GRANTED; and it is further ORDERED that that judgment be, and the same hereby is, ENTERED in favor of Plaintiff as to Counts I and II of the Amended Complaint and also Counts I, II, and III of Defendant’s Counterclaim; and it is further 939 ORDERED that the Urn is declared the Plaintiff's personal property, and not a fixture that conveyed to Defendant with the sale of Hickory Hill, and that Defendant specifically perform in accordance with the 2010 Agreement by delivering the Um to Plaintiff's possession in accordance with arrangements to be made by the Plaintiff at her expense. The Clerk is directed to forward a copy of this Order to all counsel of record and enter judgment pursuant to Fed. R. Civ. P. 58 in accordance with this Order. Anthony J. Li United States District Court Alexandria, Virginia June 23, 2021 30