PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, and
Powell, JJ., and Lacy, S.J.
NANCY W. DEVINE
OPINION BY
v. Record No. 140305 JUSTICE CLEO E. POWELL
JANUARY 8, 2015
CHARLES Z. BUKI, ET AL.
FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY
Harry T. Taliaferro, III, Judge
Nancy W. Devine (“Devine”) appeals the judgment of the
trial court rescinding the sale of the property known as Rock
Hall to Charles Z. Buki (“Buki”) and Kimberly A. Marsho
(“Marsho”). Buki and Marsho assign cross-error to the trial
court’s denial of their claim under the Virginia Consumer
Protection Act (“VCPA”), Code § 59.1-196, et seq., and their
request for punitive damages.
I. BACKGROUND
The present case involves the sale of Rock Hall, a wood
frame house that is more than 200 years old, by Nancy and her
husband, Donald M. Devine, Jr. (“Donald”). The facts regarding
the sale of Rock Hall and the subsequent lawsuit are the same as
those discussed in the companion case of Donald M. Devine, Jr.
v. Charles Z. Buki, et al., ___ Va. ___, ___ S.E.2d ___ (2015)
(this day decided). Therefore, we will address only the facts
that are particularly relevant to this case.
The trial court, in ruling on this matter, found that
Nancy’s involvement in the present case was limited to signing
the contract agreeing to sell Rock Hall to Buki and Marsho for
$590,000 (the “Real Estate Contract”) and other documents
pertaining to the sale of Rock Hall. It specifically noted that
there was no evidence that Nancy took part in any of the
fraudulent acts. Similarly, the commissioner made no finding
with regard to Nancy or attributed any fraud, misrepresentation
or concealment to her. According to the trial court, Nancy
merely “reaped the benefit” of the sale of Rock Hall.
Notwithstanding the fact that she committed no wrong, the
trial court granted rescission of the Real Estate Contract
against both Donald and Nancy. The trial court determined that
it was fair and equitable to require Nancy “to be responsible
jointly and severally with her husband for the repayment of the
purchase price” of Rock Hall. The trial court also awarded
prejudgment interest on the purchase price of Rock Hall, running
from the date of closing. However, the trial court declined to
award consequential damages or damages under the VCPA against
Nancy.
II. ANALYSIS
On appeal, Nancy contends that the trial court
affirmatively found that she committed no wrong and, therefore,
could not award any remedy against her. She further argues
that, having found that she committed no wrong, the trial court
no longer had equitable jurisdiction over her. Finally, she
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asserts that, assuming the trial court did not err in awarding
rescission, it erred in awarding Buki and Marsho prejudgment
interest on the purchase price of Rock Hall. In their
assignments of cross-error, Buki and Marsho assert that the
trial court erred in dismissing their VCPA claim and in not
awarding punitive damages.
A. RESCISSION
Nancy argues that the trial court erred in granting
rescission because the trial court specifically found that Buki
and Marsho failed to prove that she committed any fraudulent
acts. Therefore, according to Nancy, the trial court was
without the necessary “cognizable basis for granting equitable
relief.” Waikoloa Ltd. P’ship v. Arkwright, 268 Va. 40, 48, 597
S.E.2d 49, 54 (2004).
In response, Buki and Marsho contend that the flexibility
of equity allows the trial court to fashion certain remedies,
even in the absence of wrongdoing. Buki and Marsho assert that
Nancy likely reaped the benefits of the sale. They also focus
on the fact that the purpose of rescission is to return the
parties to the status quo ante. Therefore, according to Buki
and Marsho, the grant of rescission does not place Nancy in any
worse position than she was in before the sale.
It has long been recognized that “an entity may not be made
the subject of a remedial decree absent some finding of
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liability.” Bacon v. City of Richmond, 475 F.3d 633, 638 (4th
Cir. 2007) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803)); see also Swann v. Charlotte-Mecklenburg Bd. of Ed., 402
U.S. 1, 16 (1971) (“As with any equity case, the nature of the
violation determines the scope of the remedy”). “Remedies, in
other words, do not exist in the abstract; rather, they flow
from and are the consequence of some wrong.” Bacon, 475 F.3d at
638. Therefore, absent “a cognizable basis for granting
equitable relief,” a trial court “is not authorized to take a
particular course of action simply because [it] thinks that such
action is just and appropriate.” Waikoloa Ltd. P’ship, 268 Va.
at 48, 597 S.E.2d at 54. See also Tiller v. Owen, 243 Va. 176,
179, 413 S.E.2d 51, 53 (1992)(“A trial court must have a
cognizable basis for granting equitable relief.”).
As discussed at length in Donald’s case, Buki and Marsho
were entitled to rescission due to Donald’s fraudulent activity.
However, at the same time, there was no evidence of any
wrongdoing on the part of Nancy in the present case.
Accordingly, the trial court had no basis for awarding any
remedy against Nancy. *
*
In light of our decision reversing the trial court’s award
of a remedy against Nancy, we need not address Nancy’s other
arguments.
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B. CROSS-ERROR
In their assignments of cross-error, Buki and Marsho take
issue with the trial court’s decisions dismissing their VCPA
claim and denying them punitive damages. With regard to their
VCPA claim, Buki and Marsho contend that the consequential
damages were still damages that could be doubled under the VCPA.
We note, however, that the trial court did not award any
consequential damages against Nancy, nor did Buki and Marsho
assign error to the trial court’s failure to make such an award.
Buki and Marsho next argue that the trial court erred in
failing to award punitive damages after it struck their VCPA
claim. We note, however, that Buki and Marsho do not argue that
the trial court should have awarded punitive damages against
Nancy. Rather, they argue that “it was clear error for the
trial court to fail to impose equivalent damages on Donald
Devine as punitive damages.” (Emphasis added.)
None of the relief sought in the assignments of cross-error
by Buki and Marsho apply to Nancy. Accordingly, we will dismiss
their assignments of cross-error as improvidently granted.
III. CONCLUSION
For the foregoing reasons we will reverse the judgment of
the trial court and remand for further proceedings consistent
with this opinion.
Reversed and remanded.
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JUSTICE McCLANAHAN, concurring in part and dissenting in part.
I agree with Part II.B. of the majority opinion in its
disposition of the appellees' assignments of cross-error, but I
disagree with the analysis and conclusions regarding the issue
of rescission in Part II.A. For the reasons stated in my
separate opinion (concurring in part and dissenting in part) in
the companion case of Donald M. Devine, Jr. v. Charles Z. Buki,
et al., __ Va. __, __ S.E.2d __ (2015) (this day decided), I
would affirm the circuit court in fully rescinding the subject
real estate contract, and ordering repayment of the purchase
price by Donald and Nancy Devine in exchange for reconveyance of
the subject property by the appellees.
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