Devine, Donald v. Buki

PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, and
Powell, JJ., and Lacy, S.J.

DONALD M. DEVINE, JR.
OPINION BY
v. Record No. 140301 JUSTICE CLEO E. POWELL
JANUARY 8, 2015
CHARLES Z. BUKI, ET AL.

FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY
Harry T. Taliaferro, III, Judge

Donald M. Devine, Jr. (“Donald”) 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”). He further appeals the trial court’s award of

consequential damages and attorney’s fees. 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 attorney’s fees.

I. BACKGROUND

Rock Hall is a wood frame house that is more than 200 years

old. The main structure of the house is supported by a large

wood beam (the “foundation sill”) resting on a masonry wall. In

March, 2004, Rock Hall was bought by Acorn Properties, a company

owned by Donald. In January, 2005, Acorn Properties transferred

ownership of Rock Hall to Donald and his wife, Nancy W. Devine

(“Nancy”).
 Donald subsequently began the process of renovating and

restoring Rock Hall. Donald performed some of the work by

himself and hired contractors to do the rest. In June, 2005,

Shannon Swindell (“Swindell”) was hired by Donald to remove the

aluminum siding and re-paint the original wooden siding found

underneath. According to Swindell, all of the siding appeared

to be old and there were no new boards on the bottom of the

house. Donald also hired Danny Beall (“Beall”) to perform a

number of tasks, including rebuilding the front and rear

porches; reframing, insulating and rehanging sheetrock on the

interior walls; repainting the living room; installing three new

bathrooms and a kitchen; and some masonry work. Beall did not

do any work on the wooden siding or corner posts of Rock Hall.

In December, 2006, Donald decided to sell Rock Hall to

generate the cash necessary to purchase another property.

Donald listed Rock Hall for sale with Rebecca Lemmon (“Lemmon”),

a local realtor. Lemmon, with Donald’s input, created

promotional literature that was given to potential buyers,

including Buki and Marsho. The promotional literature stated:

• Rock Hall had been “completely restored;”

• Rock Hall’s foundation had been restored;

• Rock Hall was “completely renovated and restored
between 2004 and 2005 from the wood plank floors and
molding to the portico, and from the brick foundations
to the roof and chimney.”

2
The promotional literature also cautioned that the information

was provided by the seller and deemed accurate, but it was not

guaranteed.

On January 22, 2007, Buki and Marsho signed a contract

agreeing to purchase Rock Hall for $590,000 (the “Real Estate

Contract”). The Real Estate Contract included a “Disclaimer

Statement” which stated that the owners made no representations

or warranties as to the condition of the property and the

purchaser would be receiving the property “‘as is’ . . . with

all defects which may exist, if any, except as otherwise

provided in the real estate purchase contract.”

On February 2, 2007, William Knight (“Knight”), a home

inspector, inspected the property with Buki and Marsho present.

He noticed that some of the window frames were warped, allowing

air to enter. As a result, Knight determined that the windows

and siding were only in “marginal” condition, meaning that they

were “functional” but required “immediate maintenance” and

likely would need to be replaced within five years.

Additionally, he found a water stain and mold forming on the

living room ceiling. Knight also noted some moisture damage in

the basement and some evidence of boring insect damage to the

rear sill. Overall, however, he “told [Buki and Marsho] that he

found nothing that would cause him to tell a potential purchaser

not to buy Rock Hall.”

3
 Due to Knight’s report, Buki and Marsho had Jeffrey T. Cox,

Sr. (“Cox”), perform a subsequent inspection on the property,

focusing primarily on the insect damage. Cox also noted the

moisture and insect damage in the basement. However, according

to Cox, the termite damage was limited to one basement window

and a baseboard. Cox stated that, based on what he could see at

the time, there was no evidence of termite damage anywhere else

in the house or that there was an active termite infestation in

the home. Regarding the moisture damage, Cox stated that it was

not out of the ordinary for that area.

On February 4, 2007, an addendum was added to the Real

Estate Contract. In the addendum, Buki and Marsho requested a

number of repairs based on the results of the home inspection.

Referring to the stain on the living room ceiling, Buki and

Marsho requested that Donald and Nancy “find [the] source of

[the] moisture and repair/replace. Treat mold and

paint/repair.” Lemmon informed Buki and Marsho’s agent that the

stain on the living room ceiling was caused by a window being

left open during Hurricane Ernesto, which struck the area on

September 1, 2006. The stain was repaired and painted.

The real estate closing occurred on March 9, 2007. Shortly

thereafter, Buki and Marsho noticed water leaking from the east

wall and the east- and south-facing windows when there was wind-

driven rain from the east or south. They also noticed water

4
leaking from the living room ceiling. Buki and Marsho hired Tom

Brown (“Brown”) to install new windows. Brown discovered mold

and sheet rock damage around all of the windows on the east

wall. According to Brown, the damage was not from a single

event, but likely had been on-going for some time.

Additionally, Brown discovered that the exterior siding had

significant cracks and recommended that it be replaced. He

recommended another contractor, Bruce Stanley (“Stanley”).

On September 4, 2007, Brown and Stanley inspected the

siding of Rock Hall. They noticed that the lower courses of

siding, as well as portions of the corner posts, had been

replaced with new material. After removing the lower courses,

they discovered that the foundation sill and corner boards were

substantially damaged by rot and termite damage. As a result,

the structural integrity of the house was significantly

compromised.

On December 6, 2007, Buki and Marsho brought suit against

Donald and Nancy. Buki and Marsho alleged that Donald and Nancy

fraudulently induced them to enter into the Real Estate Contract

and to close on Rock Hall by misrepresenting and concealing the

true condition of Rock Hall. Initially, they only sought

rescission of the Real Estate Contract or, in the alternative,

compensatory damages for replacement of the windows and repairs

5
to the sill. In their second amended complaint, they added a

claim under the VCPA.

The trial court referred the matter to a commissioner in

chancery. After holding an evidentiary hearing, the

commissioner found that Buki and Marsho had been fraudulently

induced into entering the Real Estate Contract and closing on

Rock Hall. He further determined that Buki and Marsho were

entitled to rescission of the Real Estate Contract and damages

in the amount of $163,099.79, representing the cost of the

replacement windows ($27,970.38), the interest Buki and Marsho

paid on their first ($106,936) and second ($17,667) mortgages on

the property, the property insurance expended by Buki and Marsho

($4,301.41), and the real estate taxes Buki and Marsho paid on

the property ($6,225). Finding that the fraud was a willful

violation of the VCPA, the commissioner doubled the damages

pursuant to Code § 59.1-204(A) and awarded attorney’s fees and

costs pursuant to Code § 59.1-204(B). As the damages were

doubled under the VCPA, the commissioner declined to award

punitive damages.

Donald and Nancy filed several exceptions to the

commissioner’s report. After considering the matter, the trial

court determined that there was sufficient evidence to find that

Donald had fraudulently induced Buki and Marsho to buy Rock

Hall. The trial court focused on the false statements in the

6
promotional literature, the concealment of the damage to the

sill and misrepresentation as to the source of the living room

ceiling stain.

However, the trial court also found that Buki and Marsho

had failed to allege or prove that Nancy had committed any

fraudulent acts. The trial court noted that there was no

evidence that Nancy took any part in the fraud, aside from

signing the Real Estate Contract and the other documents

pertaining to the sale of Rock Hall. The trial court pointed

out that the commissioner made no findings with regard to Nancy

or attributed any fraud, misrepresentation or concealment to

her. The trial court determined that, at most, Nancy “reaped

the benefit” of the sale of Rock Hall.

Ultimately, the trial court granted rescission of the Real

Estate Contract. Although it found that there was no evidence

Nancy committed any fraud, the trial court determined that it

would be fair and equitable to require her “to be responsible

jointly and severally with her husband for the repayment of the

purchase price” of Rock Hall. The trial court noted that, upon

repayment, Donald and Nancy would receive Rock Hall and,

therefore, be returned to the status quo ante. In conjunction

with awarding rescission, the trial court also awarded

prejudgment interest on the purchase price of Rock Hall, running

from the date of closing.

7
 The trial court also affirmed, in large part, the

commissioner’s decision to award consequential damages.

However, the trial court determined that Buki and Marsho should

not be reimbursed for the replacement windows. According to the

trial court, by replacing the windows instead of immediately

bringing an action for rescission, Buki and Marsho were limited

to seeking actual damages for the money they expended on the

windows. The trial court noted that Buki and Marsho had dropped

their claim for actual damages, therefore, the trial court

decided it would be inequitable to award consequential damages

for the window replacement. Furthermore, in light of the fact

that there was no evidence that Nancy had committed any wrong,

the award of consequential damages was only a judgment against

Donald.

The trial court initially affirmed the commissioner’s

decision to double the consequential damages and award

attorney’s fees under the VCPA. However, upon a motion for

reconsideration, the trial court reasoned that the damages

contemplated by the VCPA did not include the consequential

damages awarded in this case because the consequential damages

were awarded as part of the award of rescission. The trial

court further noted that Buki and Marsho did not actually

incorporate the consequential damages sought in their rescission

claim as part of their VCPA claim. Therefore, the trial court

8
reversed its decision as to the VCPA claim. Similarly, the

trial court reversed the award of attorney’s fees under the

VCPA. However, it reinstated those fees “based on fraud and not

pursuant to the VCPA.”

In response to the trial court’s denial of damages under

the VCPA, Buki and Marsho moved the trial court to reconsider

the commissioner’s ruling on punitive damages. After hearing

argument on the matter, the trial court affirmatively stated

that it considered the matter, but stood by its decision to not

grant punitive damages.

On November 21, 2013, the trial court entered its final

order on the matter. The trial court

• Ordered Donald and Nancy to refund the “purchase price
of $590,000 with interest at the statutory rate from
the date of closing (March 9, 2007) until fully paid;”

• Ordered Buki and Marsho to reconvey the property to
Donald and Nancy upon refund of the purchase price;
and

• Entered judgment against Donald in the amount of
$135,129.41 “for consequential damages together with
interest . . . plus attorney’s fees and related
expenses in the amount of $98,575.66.”

This appeal followed.

II. ANALYSIS

On appeal, Donald contends that the trial court lacked

jurisdiction to enter a decree against him. He further argues

that Buki and Marsho failed to prove that he fraudulently

9
induced them to purchase Rock Hall and that the trial court

erred in awarding consequential damages, attorney’s fees and

prejudgment interest. 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. JURISDICTION

Donald’s first argument concerns the trial court’s

“equitable jurisdiction.” Specifically, Donald argues that,

because Buki and Marsho failed to prove that Nancy committed any

fraud, the trial court lost its jurisdiction to award the

equitable remedy of rescission against him. In making this

argument, Donald primarily relies on Larkey v. Gardner, 105 Va.

718, 54 S.E. 886 (1906), where this Court held:

Where the bill alleges proper matter for the
jurisdiction of a court of equity, so that a
demurrer will not lie, if it appears on the
hearing that the allegations are unfounded,
and that such matter does not in fact exist,
the result must be the same as if it had not
been alleged, and the bill should be
dismissed for want of jurisdiction.

Id. at 722, 54 S.E. at 887.

Donald, however, takes this holding out of context. We

have explained that Larkey only stands for the limited notion

that a circuit court lost “equitable jurisdiction” when it was

revealed that the equitable remedy sought was merely a pretext

to bring an action at law in a chancery court. See Iron City

10
Sav. Bank v. Isaacsen, 158 Va. 609, 626, 164 S.E. 520, 525

(1932). We note, however, that with the abolition of “sides of

court” and repeal of former Code § 8.01-270, the jurisdiction

question at issue in Larkey does not arise in the same fashion

today. See 2005 Acts ch. 681. There is also no evidence in the

record, nor does Donald argue, that the relief sought by Buki

and Marsho was a pretext to bring an action at law in a court of

chancery. Therefore, Larkey is simply inapposite to the present

case. Moreover, Donald has not cited, nor can we locate, any

authority supporting the notion that, when a plaintiff seeks

equitable relief against two defendants but only makes out a

case for relief against one, the trial court somehow loses

jurisdiction over the matter or would be barred from entering

relief against the party as to whom proper grounds for relief

was established. 1

Furthermore, we have recognized that, in awarding

rescission, “[i]t is immaterial that the status quo cannot be

literally restored.” Millboro Lumber Co. v. Augusta Wood

Products Corp., 140 Va. 409, 421, 125 S.E. 306, 310 (1924).

1
Donald’s reliance on Hurst v. Williams, 157 Va. 124, 160
S.E. 24 (1931), is similarly unavailing. In Hurst, this Court
confirmed that, in the absence of a showing of fraudulent
conduct by the wife, “there could be no personal judgment
against [her].” Id. at 130-31, 160 S.E. at 27. However, the
Court then returned the case to the trial court so that
appropriate decrees could be imposed against the husband. Id.
at 131, 160 S.E. at 27.

11
Rather, the trial court need only “be able substantially to

restore the parties to the position they occupied before

entering into the contract.” Id. (emphasis added). Thus, when

awarding rescission, “the aim of equity is to award complete,

just and equitable relief, with a view to restoring the parties

to the status quo and equitably adjusting their interests under

the circumstances of the case.” Newton v. Newton, 199 Va. 654,

660, 101 S.E.2d 580, 585 (1958) (emphasis added).

Ultimately, the fact that Donald and Nancy originally owned

Rock Hall as tenants by the entirety has no bearing on whether a

remedy can be granted as to Donald alone. Indeed, as far as

equity is concerned, their ownership as tenants by the entirety

was extinguished when they executed the Real Estate Contract.

See Ferry v. Clarke, 77 Va. 397, 407 (1883) (“[A]s soon as a

contract is made for the sale of an estate, equity considers the

buyer as the owner of the land, and the seller as the trustee

for him.”).

Additionally, the rescission of the Real Estate Contract

does not restore the tenancy by the entirety. We have long

recognized that the title to real property is transferred by the

deed, whereas the contract preceding the execution of the deed

merely requires that the deed be delivered. See Miller v.

Reynolds, 216 Va. 852, 855, 223 S.E.2d 883, 885 (1976) (“A deed

is a mere transfer of title, a delivery so to speak of the

12
subject-matter of the contract.”). Once the deed is conveyed,

the provisions of the underlying contract governing the transfer

of the property are extinguished. See Beck v. Smith, 260 Va.

452, 455, 538 S.E.2d 312, 314 (2000) (“Under the doctrine of

merger, provisions in a contract for sale are extinguished and

merged into the deed, an instrument of higher dignity.”). Thus,

because the provisions governing the transfer of ownership have

been extinguished and merged into the deed, rescission of the

underlying contract does not automatically transfer ownership of

real property back to the original owners. In other words,

ownership of Rock Hall did not automatically revert to Nancy and

Donald as tenants by the entirety when the trial court granted

rescission.

Rather, it is through the trial court’s exercise of

discretion in fashioning its award that ownership is

transferred. In exercising such discretion, this Court has

recognized that a trial court can adjust the interests of the

parties as the circumstances of the case demand, see Newton, 199

Va. at 660, 101 S.E.2d at 585, and “fashion a remedy that would

eliminate or lessen the hardship imposed upon a party by a

particular decision.” Frank Shop v. Crown Cent. Petroleum

Corp., 264 Va. 1, 7, 564 S.E.2d 134, 137 (2002). Accordingly,

the fact that Buki and Marsho failed to prove their claim

against Nancy does not remove the trial court’s jurisdiction

13
over Donald; it simply prevents the trial court from entering an

award against Nancy. It is still within the trial court’s

discretion to “adjust” the interests of the parties such that

Donald, as the sole wrongdoer, is solely responsible for

refunding the purchase price in return for his sole ownership of

Rock Hall.

B. FRAUDULENT INDUCEMENT

Donald next argues that the trial court erred in awarding

rescission because Buki and Marsho failed to properly plead or

prove that Donald fraudulently induced them to purchase Rock

Hall. Donald contends that his statements about the stain on

the living room ceiling were made pursuant to a contractual

obligation and, therefore, they could only be the basis of a

breach of contract action, not a fraud claim. He further claims

that the advertisements Buki and Marsho allegedly relied on in

purchasing Rock Hall do not serve as a legitimate basis for a

fraud claim because Buki and Marsho did not and could not, as a

matter of law, have relied on those advertisements. Finally,

Donald asserts that he had no duty to reveal the damage to the

foundation because the Disclaimer Statement in the Real Estate

Contract specifically informed Buki and Marsho that they were

buying Rock Hall “‘as is,’ that is, with all defects which may

exist.” We disagree with this last argument and, therefore,

need not address the first two arguments.

14
 In the present case, Donald does not dispute the trial

court’s finding that he concealed the damage to the foundation

sill. Rather, his argument focuses on the fact that Buki and

Marsho did not allege that his concealment induced them to enter

into the contract, only to go to closing. 2 He contends that, at

that point, Buki and Marsho had already entered into the Real

Estate Contract, therefore, the Disclosure Statement absolved

him of any duty to inform them of the condition of the

foundation sill. We disagree.

In Ware v. Scott, 220 Va. 317, 320, 257 S.E.2d 855, 857

(1979), we recognized that “[a]n action for fraudulent

inducement need not . . . be limited to formation of the

contract.” Accordingly, we held that “performance of an

executory contract may be fraudulently induced.” Id. (emphasis

omitted). We also specifically recognized that “fraudulent

inducement to perform may arise when one party induces the other

to perform by concealing some fact which excuses performance by

the latter.” Id. at 320, 257 S.E.2d at 857 (collecting cases)

(emphasis added). Furthermore, as the present case

demonstrates, the concealment that induces a party to perform

may exist prior to the contract being performed. Regardless of

2
In their complaint, Buki and Marsho alleged that they
“changed their position as a result of [Donald’s] concealment
and fraud regarding the deteriorated sill to their detriment by
closing on the property.” (Emphasis added.)

15
when the concealment occurs (i.e., before or after the contract

has been entered into), the wrong is still the same. Therefore,

unlike fraudulent inducement to contract, where the concealment

must necessarily precede the formation of the contract, the

concealment at issue in a fraudulent inducement to perform claim

may occur either before or after the contract has been entered

into.

As with a fraudulently induced contractual agreement, where

the performance of a contractual agreement is fraudulently

induced, “the entire instrument -- the whole contract -- is

rendered voidable at the instance of the defrauded party.”

Packard Norfolk, Inc. v. Miller, 198 Va. 557, 564, 95 S.E.2d

207, 212 (1956). Furthermore, “[a] seller may not rely upon and

claim the benefits of a contract and at the same time through

that instrument contract against and relieve himself of the

consequences of his fraud that induced the other party.” Id.

In other words, the entire contract is rescinded including any

language indicating that the sale was made “as is.” See George

Robberecht Seafood, Inc. v. Maitland Bros. Co., 220 Va. 109,

112, 255 S.E.2d 682, 683 (1979) (“A buyer can show that a

contract of sale was induced by the seller's fraud,

notwithstanding the fact the sale was made ‘as is.’”). This is

because such disclaimer language “‘stands no higher than the

16
contract which is vitiated by the fraud.’” Id. (quoting Packard

Norfolk, 198 Va. at 565, 95 S.E.2d at 213).

Here, as previously noted, Donald concealed the condition

of the foundation sill. “If a party conceals a fact that is

material to the transaction, knowing that the other party is

acting on the assumption that no such fact exists, the

concealment is as much a fraud as if the existence of the fact

were expressly denied, or the reverse of it expressly stated.”

Clay v. Butler, 132 Va. 464, 474, 112 S.E. 697, 700 (1922).

Accordingly, the trial court did not err in granting rescission

based on Donald’s fraudulent concealment of the damage to the

foundation sill.

C. MONETARY DAMAGES

Donald argues that the trial court erred in awarding

consequential damages and attorney’s fees in addition to

granting rescission. Specifically, Donald takes issue with the

trial court’s decision to reimburse Buki and Marsho for the

interest they paid on the mortgages they took out on the

property, the taxes they paid on the property and the property

insurance they had on the property. He further claims that the

trial court should not have awarded Buki and Marsho their

attorney’s fees.

17
 1. CONSEQUENTIAL DAMAGES

Addressing the consequential damages first, Donald argues

that the trial court’s monetary award, in addition to granting

rescission, was erroneous. Donald notes that, under the facts

of this case, the purpose of the consequential damages was to

reimburse Buki and Marsho for expenses they paid to third

parties and not for any benefits they bestowed upon him.

Therefore, he contends that the award of consequential damages

goes above and beyond the award of rescission sought by Buki and

Marsho. We agree.

Rescission is the abrogation or annulling of a contract.

See Chamberlaine v. Marsh, 20 Va. (6 Munf.) 283, 287 (1819).

“If rescission is granted, the contract is terminated for all

purposes, and the parties are restored to the status quo ante.”

McLeskey v. Ocean Park Investors, Ltd., 242 Va. 51, 54, 405

S.E.2d 846, 847 (1991). As previously stated, rescission only

requires that the parties be restored to “substantially” the

same position they occupied before entering into the contract.

Millboro Lumber, 140 Va. at 421, 125 S.E. at 310.

[W]here, on account of the act of the
adverse party, complete restitution cannot
be had, rescission will not be denied and
the court will, so far as practicable,
require the party profiting by the fraud to
surrender the benefit he has received in the
transaction.

Id. (collecting authorities) (emphasis added).

18
 Thus, we have expressly limited the amount of restitution

to the amount of benefit received by the adverse party. A party

seeking restitution beyond that amount is required to bring a

separate cause of action for damages resulting from the

fraudulent inducement. Indeed, we have specifically recognized

that, in a suit for rescission of real estate, “‘[i]nterest on

the amount paid by the plaintiffs is recoverable only as damages

for the wrongful detention of the money by the defendant.’” Lee

v. Laprade, 106 Va. 594, 602, 56 S.E. 719, 722 (1907) (quoting

Talbot v. Bank, 129 Mass. 67, 70 (1880)) (emphasis added).

In the present case, there is no evidence that Donald

received any benefit from Buki and Marsho beyond the sale price

of Rock Hall. Obviously, he did not receive any benefit from

Buki and Marsho paying interest on their mortgages or from their

payment of their property taxes and property insurance. These

payments were not made to him, but to unrelated third parties.

Further, the consequential damages awarded to Buki and

Marsho relate to matters that, under the facts of this case, are

only indirectly related to the trial court’s award of

rescission. The trial court’s award only voided the Real Estate

Contract; it had no bearing on the mortgages taken out by Buki

and Marsho. The mortgages still exist and, therefore, Buki and

Marsho are still required to pay interest on them.

Additionally, the effect of the trial court’s order was not to

19
immediately void the Real Estate Contract; rather, Buki and

Marsho will continue to own Rock Hall until Donald pays them the

purchase price plus interest. Only then will Rock Hall be

reconveyed. During the interim, Buki and Marsho will still be

required to pay taxes on the property. They will also likely be

required to carry insurance on the property. Thus, the

consequential damages are not restitution related to the

rescission; rather, they are more akin to an award of

compensatory damages. As Buki and Marsho abandoned their claim

for such damages, it was error for the trial court to have

awarded them such damages in the form of consequential damages.

2. ATTORNEY’S FEES

Donald next claims that the trial court erroneously awarded

attorney’s fees pursuant to the Real Estate Contract. According

to Donald, Buki and Marsho only requested attorney’s fees “as

provided by the [Real Estate Contract].” Donald asserts that

the Real Estate Contract cannot serve as a valid basis for the

award of attorney’s fees because it was ultimately rescinded.

If Buki and Marsho’s request for attorney’s fees was limited to

the Real Estate Contract, Donald’s argument would likely be

correct. See Bank of Giles County v. Mason, 199 Va. 176, 180,

98 S.E.2d 905, 907 (1957) (holding that “no relief should be

granted that does not substantially accord with the case as made

in the pleading”). However, Donald overlooks the fact that Buki

20
and Marsho did not only request attorney’s fees pursuant to the

Real Estate Contract. Rather, Buki and Marsho also requested

attorney’s fees independent of any individual claim. 3

This Court has repeatedly recognized that, “in a fraud

suit, a chancellor, in the exercise of his discretion, may award

attorney’s fees to a defrauded party.” Prospect Dev. Co. v.

Bershader, 258 Va. 75, 92, 515 S.E.2d 291, 301 (1999). Here,

the trial court was clearly exercising its discretion when it

stated that it was awarding attorney’s fees “based on fraud.”

Donald has made no showing that the trial court abused its

discretion. Accordingly, the trial court did not err in

awarding attorney’s fees.

D. PREJUDGMENT INTEREST

Donald contends that the trial court erred in awarding

prejudgment interest because Buki and Marsho failed to

specifically request it in their pleadings. We agree.

Code § 8.01-382 4 authorizes a trial court to award

prejudgment interest. This Court has recognized that Code §

3
Specifically, in the prayer for relief in their second
amended complaint, Buki and Marsho requested that the trial
court provide, “with regard to any count, for a recovery of
their reasonable attorney’s fees incurred herein.”
4
Code § 8.01-382 states, in relevant part:
In any . . . action at law or suit in
equity, the final order, verdict of the
jury, or if no jury the judgment or decree
of the court, may provide for interest on

21
8.01-382 “leaves the assessment of interest in the discretion of

the fact-finder.” J.W. Creech, Inc. v. Norfolk Air Conditioning

Corp., 237 Va. 320, 325, 377 S.E.2d 605, 608 (1989). However,

although the award of prejudgment interest is discretionary, it

is still “part of the actual damages sought to be recovered.”

Dairyland Ins. Co. v. Douthat, 248 Va. 627, 631, 449 S.E.2d 799,

801 (1994) (internal quotation marks omitted) (collecting

cases). As such, prejudgment interest, like other damages, must

be requested in a pleading before it can be awarded by a trial

court. See Davis v. Beury, 134 Va. 322, 354, 115 S.E. 527

(1923) (“[I]nterest prior to verdict or decree, if recoverable

at all, would be recoverable as special damages, and hence would

have to be specially alleged in order to be recoverable.”).

In the present case, Buki and Marsho’s second amended

complaint contains no request for prejudgment interest. As “a

plaintiff cannot recover more than he sues for,” Powell v.

Sears, Roebuck & Co., 231 Va. 464, 469, 344 S.E.2d 916, 919

(1986), the trial court erred in awarding prejudgment interest

on the sale of Rock Hall.

any principal sum awarded, or any part
thereof, and fix the period at which the
interest shall commence.

22
 E. CROSS ERROR

In their assignments of cross-error, Buki and Marsho take

issue with the trial court’s refusal to multiply the

consequential damages under the VCPA and its denial of punitive

damages. With regard to their VCPA claim, Buki and Marsho

contend that the trial court erred in determining that

consequential damages were not a form of loss that could be

doubled under the VCPA. However, in light of our above decision

reversing the award of consequential damages, this issue is

moot.

Buki and Marsho next argue that the trial court erred in

failing to award punitive damages after it struck their VCPA

claim. According to Buki and Marsho, “it was clear error for

the trial court to fail to impose equivalent damages on [Donald]

as punitive damages.” We disagree.

“A punitive damages award is generally left to the

[factfinder’s] discretion because there is no set standard for

determining the amount of punitive damages.” Coalson v.

Canchola, 287 Va. 242, 249, 754 S.E.2d 525, 528 (2014). As such

an award is entirely discretionary, Buki and Marsho are required

to demonstrate the trial court abused its discretion in failing

to award punitive damages. Here, Buki and Marsho fail to raise

any argument indicating that such an abuse of discretion

23
occurred. Accordingly, we will not reverse the decision of the

trial court on this issue.

III. CONCLUSION

For the foregoing reasons, we will affirm the judgment of

the trial court granting rescission of the Real Estate Contract

and its award of attorney’s fees. Furthermore, no abuse of

discretion has been shown regarding the circuit court's refusal

to award punitive damages in this case. However, we will

reverse the trial court’s award of consequential damages and

prejudgment interest. Accordingly, we will remand the matter to

the trial court for further proceedings not inconsistent with

this opinion or the opinion expressed in the companion case of

Nancy W. Devine v. Charles Z. Buki, et al., ___ Va. ___, ___

S.E.2d ___ (2015) (this day decided).

Affirmed in part,
reversed in part,
and remanded.

JUSTICE McCLANAHAN, concurring in part and dissenting in part.

While agreeing with Parts II.B. through E. of the majority

opinion, I disagree with the analysis and conclusions regarding

the issue of rescission in Part II.A. I would affirm the

circuit court in fully rescinding the subject real estate

contract, and ordering repayment of the purchase price by Donald

24
and Nancy Devine in exchange for the reconveyance of the subject

property by the appellees.

The Devines, as husband and wife, acquired the property "as

tenants by the entirety with right of survivorship as at common

law." Accordingly, it was in that capacity that they

subsequently conveyed the property to the appellees under the

terms of the contract. Upon the circuit court finding in this

case that Donald fraudulently induced the appellees to both

enter into the contract to purchase the property and to close on

the sale, the court ordered, inter alia, the following: (i) the

contract was rescinded, (ii) the Devines "shall refund to the

[appellees] their purchase price," and (iii) upon "receipt of

such refund," the appellees "shall reconvey the property to

Donald W. Devine, Jr. and Nancy W. Devine, husband and wife, as

tenants by the entireties with the right of survivorship as at

common law."

The majority opinion purports in its conclusion to affirm

the circuit court's rescission of the contract. In Part II.A.,

however, the majority makes clear that it is only approving

partial rescission, i.e., rescission of the contract "as to

Donald alone"; that the property is to be reconveyed "sole[ly]"

to Donald; and that Donald is "solely responsible for refunding

the purchase price." These holdings arise from the majority's

determination that ownership of the property did not

25
"automatically revert to Nancy and Donald as tenants by the

entirety" upon rescission of the contract - or indeed to Nancy

at all. I disagree.

In holding title to the property as tenants by the

entirety, Donald and Nancy were deemed in this "unity" of

marital ownership to have possessed the property as "one."

Rogers v. Rogers, 257 Va. 323, 326, 512 S.E.2d 821, 822 (1999)

(quoting Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64

(1984)) (internal quotation marks omitted). This, of course, is

the essential and centuries old feature of a tenancy by the

entirety. See 7 Richard R. Powell, Powell on Real Property §§

52.01[2] & 52.02[1] (Michael Allen Wolf ed., 2014). The

transfer of the property by Donald and Nancy to the appellees

was therefore a unitary conveyance, and not accomplished through

individual conveyances, as neither of them was capable of

conveying any part of the property by acting alone. Hausman v.

Hausman, 233 Va. 1, 3, 353 S.E.2d 710, 711 (1987); Vasilion v.

Vasilion, 192 Va. 735, 740, 66 S.E.2d 599, 602 (1951).

Furthermore, absent evidence to the contrary, the purchase

proceeds Donald and Nancy received from their sale of the

property, "which [they] had owned as tenants by the entireties,

were likewise owned and held by them as tenants by the

entireties." Oliver v. Givens, 204 Va. 123, 127, 129 S.E.2d

26
661, 663 (1963); see Pitts v. United States, 242 Va. 254, 260-62

408 S.E.2d 901, 904-06 (1991) (applying Oliver).

This Court has repeatedly stated that "[i]f rescission is

granted, the contract is terminated for all purposes, and the

parties are restored to the status quo ante." McLeskey v. Ocean

Park Investors, Ltd., 242 Va. 51, 54, 405 S.E.2d 846, 847

(1991); see also Schmidt v. Household Fin. Corp., 276 Va. 108,

115, 661 S.E.2d 834, 837-38 (2008). Thus, in rescinding the

contract in this case, the circuit court correctly ordered the

return of ownership of the property to Donald and Nancy as

tenants by the entirety. Because they acquired and sold the

property in this unitary capacity, Donald's fraud did not enable

the court to transform their tenancy into something different,

much less exclude Nancy altogether from the reconveyance.

Rather, the taint of Donald's fraud upon their tenancy rendered

both Donald and Nancy liable for repayment of the purchase price

in exchange for both regaining ownership of the property as

originally possessed.

In an effort to avoid this result, the majority advances a

non sequitur. The majority asserts that because the contract

merged into the deed from Donald and Nancy to the appellees,

thereby "extinguishing" the contract (citing Beck v. Smith, 260

Va. 452, 455, 538 S.E.2d 312, 314 (2000)), the subsequent

rescission of the contract somehow obviated the requirement of

27
restoring the parties to the status quo ante. But just the

opposite is true. By definition, rescission of the parties'

previously "extinguished" contract necessarily placed them in

the position they occupied before the execution and delivery of

the deed - as the "unmaking" of the contract, of course, also

nullified the deed to the appellees. Black's Law Dictionary

1149 (10th ed. 2014) (defining rescission). Consequently, the

circuit court did not have the discretion, as the majority

asserts, to order the reconveyance of the property other than to

Donald and Nancy as tenants by the entirety in conjunction with

the satisfaction of their joint obligation to repay the purchase

price to the appellees.

For these reasons, I dissent with respect to Part II.A. of

the majority opinion, but concur with respect to the other

parts.

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