                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 07-1639


KENNETH NDEH,

                Plaintiff - Appellant,

           v.

MIDTOWN ALEXANDRIA, L.L.C.,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:07-cv-00480-LMB)


Argued:   September 25, 2008             Decided:   November 18, 2008


Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge,
and James C. DEVER III, United States District Judge for the
Eastern District of North Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Kevin Donal McInroy, MCINROY & RIGBY, L.L.P., Arlington,
Virginia, for Appellant.    Richard Daniel Kelley, REED SMITH,
L.L.P., Falls Church, Virginia, for Appellee. ON BRIEF: Michael
S. Dingman, REED SMITH, L.L.P., Falls Church, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       In this appeal, we examine whether, as a matter of Virginia

law,       a     condominium        purchase             contract        providing        that     the

purchaser “shall have . . . either” the option to rescind the

contract        and    receive      a       return       of   his    down       payment    “or”    the

option to wait until construction of the condominium unit is

completed        and    proceed         with    the       purchase        eliminates       the    real

estate         purchaser’s     traditional               right      to   specific     performance

where the condominium unit is not completed on time.                                      Because we

conclude        that    such   contract          language           does    not    eliminate       the

right to specific performance under Virginia law, we affirm.



                                                    I.

       On August 4, 2005, appellant Kenneth Ndeh (“appellant” or

“Ndeh”)         entered      into       a     purchase         and       sale     contract       (“the

contract”) with appellee Midtown Alexandria, L.L.C. (“appellee”

or     “Midtown”)       to     purchase         a        condominium        (“the     condo”)      in

Alexandria, Virginia.               See J.A. at 13—23. 1                    The purchase price

was nearly $500,000.                See id. at 13.                   Ndeh put approximately

$50,000 down on the condo at the time he signed the contract.

See id. at 14.


       1
       Citations to “J.A.” refer to the joint appendix filed by
the parties.



                                                     2
       By February 2007, the condo market in Alexandria, Virginia

had    changed,       and    Ndeh    decided       that    he    no    longer     wanted    the

condo.       Ndeh sent Midtown a letter demanding a return of his

$50,000      deposit        and    purporting       to    revoke      his    assent   to    the

contract.       See id. at 10, 26.                    However, Midtown refused to

return the deposit or grant the rescission.                           See id.

       On    April     20,    2007,     Ndeh       filed   suit       against     Midtown    in

Virginia state court.               See id. at 8—11.             Ndeh alleged that the

contract      violated        various    provisions         of     the      Interstate     Land

Sales Full Disclosure Act (“ILSA”), 15 U.S.C. §§ 1701 et seq.

J.A.    at    9—11.         Ndeh    sought     a    declaratory        judgment     that    the

contract was void, and a judgment in his favor returning his

$50,000 deposit from Midtown.                      Id. at 10—11.            Midtown removed

the action to the Eastern District of Virginia.                             Id. at 26.

       Midtown then moved to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6).               Id. at 24.           Midtown argued that the

contract was exempt from ILSA.                     See id. at 28—34.            Midtown noted

that “the sale or lease of any improved land on which there is a

. . . condominium . . . building, or the sale or lease of land

under a contract obligating the seller or lessor to erect such a

building thereon within a period of two years,” is exempt from

ILSA.       See 15 U.S.C. § 1702(a)(2); see also J.A. at 28–34.                             The

parties       agreed        that    Midtown’s         project         is    a    “condominium

building” within the meaning of ILSA and that the condominium

                                               3
building was in fact built “within a period of two years.”                                     See

J.A.    at     113.      However,           they       disputed     whether     the    contract

obligated Midtown to construct the condominium building “within

a period of two years.”                 See, e.g., id. at 30-31, 40—41.

        To   answer     this          question,         the   parties       both   cited       the

Department of Housing and Urban Development’s (“HUD”) guidelines

interpreting ILSA.               See id. at 29, 37–39.                      These guidelines

provide:       “If a seller (developer) is relying on this [two-year]

exemption      and    the    .     .    .     condominium      .    .   .   building      is   not

complete, the contract must obligate the seller to complete the

building within two years.                    If the contractual obligation is not

present,       the    sale       is     not     exempt.”           Interstate      Land    Sales

Registration Program Final Rule, 61 Fed. Reg. 13,596, 13,603

(Mar.    27,    1996);       see       also    J.A.      at   69.       Here,   the    contract

states, “[Midtown] shall complete the unit, and settlement shall

occur, within twenty-four months after the date [Ndeh] signs

[the contract].”             J.A. at 17 (contract § 8(a)).                      However, the

HUD guidelines further state:

       The contract must not allow for nonperformance by the
       seller at the seller’s discretion.      Contracts that
       permit the seller to breach virtually at will are
       viewed as unenforceable because the construction
       obligation is not an obligation in reality. Thus, for
       example, a clause that provides for a refund of the
       buyer’s deposit if the seller is unable to close for
       reasons normally within the seller’s control is not
       acceptable for use under this exemption.     Similarly,
       contracts that directly or indirectly waive the
       buyer’s right to specific performance are treated as

                                                   4
     lacking a realistic obligation to construct.    HUD’s
     position is not that a right to specific performance
     must be expressed in the contract, but that any such
     right that purchasers have must not be negated.   For
     example, a contract that provides for a refund or
     damage action as the buyer’s sole remedy would not be
     acceptable.

Interstate Land Sales Registration Program Final Rule, 61 Fed.

Reg. at 13,603 (emphasis supplied); see also J.A. at 69.

     Ndeh argued that the contract violated this provision of

the HUD guideline.       He cited the following contract provision:

     If settlement shall not have occurred within the [24-
     month] period allowed in Section 8 due to reasons
     within [Midtown’s] control, [Ndeh] shall have the
     option of either:   (i) terminating this [contract] by
     written notice to [Midtown] . . . , in which event
     [Midtown] shall . . . cause the [$50,000 deposit] . .
     . to be returned to [Ndeh], and neither party shall
     have any further liability or obligation hereunder; or
     (ii) electing to proceed with the purchase of the
     Condominium Unit when the same is available.

J.A. at 20 (contract § 19(a)).           There was (and is) no legitimate

dispute   that    neither    the    first     clause    (rescission)       nor   the

second clause (simply waiting) of section 19(a) satisfies the

HUD guideline.     However, the right to seek specific performance

would   satisfy    the    HUD     guideline,    if     Ndeh   has   that    right.

Accordingly, the parties dispute whether the “shall have . . .

either . . . or” language in section 19(a) of the contract

“directly or indirectly waive[s] the buyer’s right to specific

performance.”       See     id.    at   20,    69;     Interstate   Land     Sales

Registration Program Final Rule, 61 Fed. Reg. at 13,603.


                                        5
       Ndeh argued to the district court that the plain language

of section 19(a) did waive his right to specific performance.

According to Ndeh, “The plain and natural meaning of Section 19

. . . is that [Ndeh’s] only remedy if Midtown does not complete

and deliver the Unit to him within ILSA’s two-year completion

period is the return of his deposit,” or simply waiting until

Midtown completes construction (which is really no remedy at

all).       See J.A. at 51.          By contrast, Midtown argued to the

district court that the disputed language does not eliminate

Ndeh’s right to specific performance.                  According to Midtown,

“[s]ection 19(a)(ii) neither expressly nor impliedly takes away

any    of   [Ndeh’s]   legal    or   equitable    rights;”    rather,    section

19(a) merely clarifies what some of Ndeh’s rights are.                   See id.

at 105.

       The district court held a hearing on the motion to dismiss.

See id. at 111–20.            After considering the parties’ memoranda,

their arguments at the hearing, and the transcript from another

case    before      another    district     judge      that   involved     almost

precisely     the   same   issues    (see   id.   at   87–103),   the    district

court granted the motion to dismiss.                   See id. at 120.       The

district court relied on two key facts.                First, “nothing in the

language of [section] 19 . . . actually negates the potential

for seeking specific performance.”            Id. at 118.      Second, another

provision in the contract discussed the waiver of rights to a

                                        6
jury   trial.        In   bold,   all-capitalized      letters,    that    section

states:    “[Ndeh] and [Midtown] each waive trial by jury in any

lawsuit, action, proceeding or counterclaim brought by either

party against the other whether directly or indirectly, with

respect to any matters whatsoever regarding this agreement, the

condominium unit or the condominium.”                  Id. at 21 (contract §

22(b); double emphasis removed).                The district court reasoned

that the contract would not include such broad language waiving

jury trial rights for “any” action with respect to “any” matter

relating   to    the      contract   if    there   were    not   other    possible

rights—such      as       specific     performance—contemplated           by      the

contract, but not expressly listed in section 19(a).                  See id. at

116–18, 120.     Ndeh now appeals.



                                          II.

       Because this appeal involves the district court’s grant of

a motion to dismiss, the standard of review is de novo.                        See,

e.g., Sucampo Pharms., Inc. v. Astellas Pharma, Inc., 471 F.3d

544, 550 (4th Cir. 2006).            Further, contract interpretation is a

question of law subject to de novo review.                  See, e.g., Seabulk

Offshore, Ltd. v. Am. Home Assurance Co., 377 F.3d 408, 418 (4th

Cir. 2004).          Moreover, because “HUD’s interpretation of what

constitutes     an    obligation     to    construct   a   building      relies    on

general principles of contract law . . . to be decided . . .

                                           7
under the laws of the jurisdiction in which the construction

project is located,” Interstate Land Sales Registration Program

Final Rule, 61 Fed. Reg. at 13,603, we look to Virginia law to

address    this    contract       issue.          The        dispostive       question         is

therefore whether, as a matter of Virginia law, the “shall have

. . . either . . . or” language of section 19(a) of the contract

eliminates Ndeh’s right to specific performance by making the

listed remedies exclusive.

     The Supreme Court of Virginia has not addressed the precise

contract    language      at    issue    in      this       case.     Nonetheless,            the

Supreme    Court    of    Virginia      stated       the      governing       rule       of   law

concerning the exclusivity of remedies in Bender-Miller Co. v.

Thomwood Farms, Inc., 211 Va. 585, 179 S.E.2d 636 (1971).                                     That

case provides:

     [A]uthorities are not in accord as to the rules that
     govern the construction of a contract when deciding
     whether a remedy provided therein is exclusive of
     other remedies allowed by law.    The better rule is
     that the remedy provided will be exclusive of other
     possible remedies only where the language employed in
     the contract clearly shows an intent that the remedy
     be exclusive.

211 Va. at 588, 179 S.E.2d at 638 (internal citations omitted).

Ndeh agrees that the Bender-Miller rule governs this case, and

argues    that    here,   the    “shall       have      .    .   .   either    .     .    .   or”

language    in    section      19(a)    of    the    contract         clearly      shows        an




                                             8
intent     that    the    two      listed         remedies       be    exclusive.           See

Appellant’s Br. 19–22; Appellant’s Reply Br. 8–9.                            We disagree.

      In Bender-Miller, the Supreme Court of Virginia placed the

presumption       against       exclusivity.             Thus,    a    listed    remedy      is

exclusive of other possible unlisted remedies “only where the

language employed in the contract clearly shows an intent that

the [listed] remedy be exclusive.”                       211 Va. at 588, 179 S.E.2d

at   638   (emphasis      supplied).              This    reading       of    Bender-Miller

comports with cases from this court and other courts that have

applied Bender-Miller.            See Atlas Machine & Iron Works, Inc. v.

Bethlehem Steel Corp., 986 F.2d 709, 713 (4th Cir. 1993); People

Karch Int’l Co. v. Peuler, No. 94-1144, 1994 WL 702105, at *7

(4th Cir. Dec. 15, 1994)(per curiam)(unpublished); Safeway, Inc.

v. CESC Plaza Ltd. P’ship, 261 F. Supp. 2d 439, 444 n.1 (E.D.

Va. 2003); In re James R. Corbitt Co., 48 B.R. 937, 941 (Bankr.

E.D. Va. 1985); cf. TQY Invs. v. Rodgers Co., 26 Va. Cir. 40, 48

(Cir. Ct. 1991)(discussing the presumption against exclusivity

without    citing    Bender-Miller:               “Where,        however,      there   is    no

limitation in the contract which makes the remedies enumerated

therein    exclusive,       a    party   is       entitled       to   the     remedies   thus

specified, or he may at his election pursue any other remedy

which the law affords.”).

      Admittedly,        none     of   the    above-cited             cases    address      the

precise     either/or       contract         language        found       in     this     case.

                                              9
However, the question is whether the contract clearly makes the

listed remedies exclusive.                Notably, the contract does not state

that Ndeh shall have “only” the listed remedies or that he is

“limited to” the listed remedies.                    In sum, the contract does not

include any clear language of exclusivity.

       In analyzing the contract at issue, we also cannot ignore

that this case involves a real estate contract.                          Under Virginia

law,     each   piece        of    real    estate         is   unique,   and     specific

performance is the preferred remedy for breach of a contract to

convey real property.               See, e.g., Walker v. Henderson, 151 Va.

913,   933,     145    S.E.       311,   317   (1928)(“Ordinarily         the    specific

performance of a contract for the sale of real estate is a

matter of course, whenever the required equitable conditions are

fulfilled.”);         Hale    v.    Wilkinson,       62    Va.   (21   Gratt.)    75,   80

(1871)(“But land always has, in the eye of the law, a peculiar

value,    and   a     contract      for    the      sale   and   purchase   of    it,   if

unobjectionable, will therefore be specifically executed.                          In no

other way can the parties receive the full benefit of their

contract.” (emphasis supplied)); Gaynor v. Hird, 11 Va. App.

588, 592—93, 400 S.E.2d 788, 790 (Ct. App. 1991)(“It has long

been the law in Virginia that each piece of real property has ‘a

peculiar value.’             Because the law recognizes the unique nature

of real property, the right to enforce title in real property

can be specifically enforced.” (internal citation and quotation

                                               10
omitted)); Pocahontas Mining Ltd. Liab. Co. v. Jewell Ridge Coal

Corp., 66 Va. Cir. 498, 500 (Cir. Ct. 2003)(“Virginia law has

long       held   that   specific   performance     is     the   preferred   remedy

where real estate is involved, as the law recognizes the unique

nature and characteristics of real property.”); see also 1 John

L.   Costello,       Virginia   Remedies      §    14.01    (2008)(stating     that

“contracts for the sale of interests in realty are specifically

enforced as a matter of course” under Virginia law (quotation

omitted)).          Ndeh’s   reasoning     would    read     this   long-standing

equitable remedy out of this real estate contract, even though

Virginia courts have declared specific performance to be the

preferred remedy in real estate contracts.                  In light of the real

estate contract at issue in this case, the contract language,

and Bender-Miller, Ndeh’s argument fails. 2



                                       III.

       For the reasons explained above, we affirm the district

court’s judgment.

                                                                         AFFIRMED




       2
       Although Ndeh suggested at oral argument that we should
read the contract against its drafter (Midtown) and thereby take
away the right to specific performance from Ndeh and those
similarly situated, we need not resort to the contra proferentem
canon to resolve this appeal.



                                         11
