PRESENT: ALL THE JUSTICES
LAURA E. COHN
OPINION BY
v. Record No. 022592 JUSTICE G. STEVEN AGEE
SEPTEMBER 12, 2003
KNOWLEDGE CONNECTIONS, INC.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
This case arises out of the circumstances surrounding an
offer of employment to Laura E. Cohn ("Cohn") from Knowledge
Connections, Incorporated ("KCI"). At trial in the Circuit
Court of Fairfax County, Cohn alleged actual and constructive
fraud on the part of KCI, through Marion Bonhomme ("Bonhomme") 1 ,
the president and owner of KCI.
A jury awarded Cohn $125,000 in compensatory damages but
the trial court granted a motion to strike made by KCI which
previously had been taken under advisement. The trial court
then granted KCI's motion to set aside the verdict as to
liability and damages. For the reasons set forth below, we will
affirm the judgment of the trial court.
I. BACKGROUND AND PROCEEDINGS BELOW
From 1996 to 1999 Cohn worked as a manager with Omega World
Travel ("Omega") in northern Virginia. In addition to her
salary of $38,000, Cohn received health insurance, vacation
1
During the pendency of the proceedings, Marion Bonhomme
Knox changed her marital status. In the record she is sometimes
referred to as Ms. Bonhomme and sometimes as Mrs. Knox.
time, and retirement benefits. In June 1999 Bonhomme contacted
Cohn and asked her to leave her job at Omega and become a
manager with KCI. Specifically, Bonhomme asked Cohn to work at
KCI's Pentagon office. Cohn expected to be assigned to the
Pentagon office, although she knew that she could have been
assigned to another KCI office. The parties agreed that Cohn's
employment with KCI was an "at-will" arrangement.
Cohn was concerned about potential workplace conflicts with
any employees at KCI who were qualified for the managerial
position but were not promoted from within the company. She
believed her new position at KCI would be more secure,
particularly during the probationary period, if she were the
most experienced employee at the KCI office to which she was
assigned. Cohn stated at trial that Bonhomme told her no one on
the existing KCI staff was qualified for the position offered to
Cohn in the Pentagon office.
Subsequently, Cohn learned from Bonhomme that Wayne Temple
("Temple"), a KCI employee, had ten more years of experience
than Cohn. Cohn alleged at trial that, upon further inquiry,
Bonhomme assured her that Temple did not have the supervisory
experience necessary to manage the Pentagon office. At trial,
however, Bonhomme testified that she could not recall Cohn ever
asking whether any current KCI employees were qualified for the
2
manager's position. Nor did Bonhomme recall being asked why she
was not hiring from within.
On or around June 29, 1999, Bonhomme faxed a letter
offering employment to Cohn as an administrative travel office
manager at a salary of $48,000. The offer of employment did not
indicate a specific KCI office where Cohn would work. KCI did
not offer a retirement plan but did offer full medical benefits
coverage and paid vacation. Cohn accepted Bonhomme's offer of
employment and tendered her resignation to Omega. Cohn also
began, with Bonhomme's assistance, applying for the security
clearance necessary for work at the Pentagon.
Cohn stated at trial that she was to begin work at KCI on
August 2, 1999. Bonhomme testified, however, that she told Cohn
that if she wanted the Pentagon office position, she was
required to start work on July 12, 1999, or, in the alternative,
that she could accept the position in KCI's Crystal City office
and begin work two weeks later. On July 14, 1999, Bonhomme
telephoned Cohn to notify her that Temple had been elevated to
the managerial position at KCI's Pentagon office and that Cohn
would be the administrative travel office manager at the
company’s Crystal City office with the same salary and benefits.
Bonhomme reiterated this statement in a letter dated the same
day. It was during this conversation, Cohn testified at trial,
that Bonhomme expressed to her that the Department of Defense
3
chief travel officer in the Pentagon, Stanley Jefferson
("Jefferson"), preferred working with men rather than women.
Cohn asserted that because of this alleged gender bias, Bonhomme
determined Temple should be in charge of KCI's Pentagon office.
On July 16, 1999, Bonhomme notified Cohn that any employment
offer from KCI was withdrawn because Cohn had not reported for
work.
Cohn subsequently filed an action against KCI in the
Circuit Court of Fairfax County alleging actual and constructive
fraud. At the conclusion of Cohn's evidence, KCI made a motion
to strike. The trial court took the motion under advisement and
allowed the jury to deliberate. The jury returned a verdict for
Cohn of $125,000 in compensatory damages. However, in
considering KCI's renewed motion to strike, the trial court
found, with respect to Cohn's allegations of actual fraud, that
she failed to present sufficient evidence that Bonhomme had
intended to conceal Jefferson's alleged bias against women. The
court further found that Bonhomme had no duty to disclose
whatever she knew or thought about Jefferson.
With respect to Cohn's allegations of constructive fraud,
the trial court found that Bonhomme's purported
misrepresentations of Temple's qualifications were statements of
opinion. The trial court also stated that even if the
statements were not statements of opinion, Cohn failed to
4
present clear and convincing evidence that the statements were
false when made. The trial court granted KCI's motion to strike
as well as KCI's motion to set aside the verdict.
We awarded Cohn this appeal.
II. STANDARD OF REVIEW
Review of a trial court’s order striking the evidence
requires the appellate court to accept as true all the evidence
favorable to the plaintiff and any reasonable inferences from
that evidence. Lambert v. Downtown Garage, 262 Va. 707, 712,
553 S.E.2d 714, 716 (2001). Furthermore, when reviewing a trial
court’s order setting aside a jury verdict, the trial court's
decision will be sustained unless plainly wrong or without
evidence to support it. Henderson v. Gay, 245 Va. 478, 480, 429
S.E.2d 14, 16 (1993); Lane v. Scott, 220 Va. 578, 260 S.E.2d 238
(1979). However, if there is a conflict in the testimony, and
if reasonable people may differ in their conclusions or if a
conclusion is based on the weight to be given to the testimony,
the conclusion of the trial judge cannot be substituted for that
of the jury. Henderson, 245 Va. at 480-81, 429 S.E.2d at 16;
Lane, 220 Va. at 581, 260 S.E.2d at 240. Finally, this Court
must give the recipient of the verdict the benefit of all
substantial conflicts from the evidence and all reasonable
inferences which may be drawn from the evidence. Henderson, 245
5
Va. at 481, 429 S.E.2d at 16; Graves v. National Cellulose
Corp., 226 Va. 164, 169-70, 306 S.E.2d 898, 901 (1983).
III. ANALYSIS
Cohn brought separate causes of action, for actual and
constructive fraud, based on two claimed misrepresentations.
First, she alleged that her prospective employer, KCI, failed to
inform her of Jefferson's alleged gender bias. Second, she
claimed that KCI misrepresented Temple's qualifications.
In her amended motion for judgment, Cohn alleged that each
of these misrepresentations was the basis for both fraud counts.
However, during a hearing on post-trial motions, Cohn agreed
with the trial court’s conclusion that the jury’s finding of
actual fraud related to the alleged concealment of Jefferson’s
gender bias and the finding of constructive fraud related to the
alleged misrepresentation of Temple’s qualifications. In her
brief submitted to this Court, Cohn argues that the concealment
of Jefferson’s alleged bias could be the basis for the claim of
constructive fraud. We do not consider Cohn's argument on this
point because "[n]o litigant . . . will be permitted to
approbate and reprobate — to invite error, as the [litigant]
. . . did here, and then to take advantage of the situation
created by his own wrong." Fisher v. Commonwealth, 236 Va. 403,
6
417, 374 S.E.2d 46, 54 (1988); Sullivan v. Commonwealth, 157 Va.
867, 878, 161 S.E. 297, 300 (1931). 2
A. Actual Fraud
A cause of action for actual fraud requires the plaintiff
to prove: (1) a false representation, (2) of a material fact,
(3) made intentionally and knowingly, (4) with intent to
mislead, (5) reliance by the party misled, and (6) resulting
damage to the party misled. Evaluation Research Corp. v.
Alequin, 247 Va. 143, 148, 439 S.E.2d 387, 390 (1994); Bryant v.
Peckinpaugh, 241 Va. 172, 175, 400 S.E.2d 201, 203 (1991). The
trial court ruled that Cohn failed to prove her claim of actual
fraud because she failed to establish there was an intent to
conceal and that Bonhomme’s statement about Jefferson was
opinion and not fact.
Cohn claims that KCI failed to disclose Jefferson's alleged
preference not to work with women. Proof of fraud by
nondisclosure “requires evidence of a knowing and deliberate
2
In any event, Cohn's argument misinterprets our decisions.
This Court in Nationwide Mutual Ins. Co. v. Hargraves, 242 Va.
88, 405 S.E.2d 848 (1991), held that concealment can give rise
to constructive fraud only in cases where there is a duty to
disclose the concealed fact. Id. at 92-93, 405 S.E.2d at 851.
In that case, a duty to inform arose by virtue of the
contractual obligation imposed by the insurance contract between
the parties, a circumstance not present in this case. Further,
in Norris v. Mitchell, 255 Va. 235, 495 S.E.2d 809 (1998), we
restated that concealment, in general, can only give rise to a
claim of actual fraud.
7
decision not to disclose a material fact.” Lambert, 262 Va. at
714, 553 S.E.2d at 718 (quoting Norris v. Mitchell, 255 Va. 235,
241, 495 S.E.2d 809, 812 (1998)(internal quotation marks
omitted)). “A contracting party’s willful nondisclosure of a
material fact that he knows is unknown to the other party may
evince an intent to practice actual fraud.” Spence v. Griffin,
236 Va. 21, 28, 372 S.E.2d 595, 599 (1988).
It is apparent from the record, as the trial court
determined, that there was no proof of an intent to conceal.
Assuming Cohn's claim concerning Jefferson's bias is correct,
Cohn nonetheless produced no evidence that Bonhomme was aware of
this bias, much less that she intentionally concealed it, at the
time the employment offer was made. In that circumstance, a
claim for actual fraud based upon concealment cannot lie. See
Virginia Natural Gas Co. v. Hamilton, 249 Va. 449, 455, 457
S.E.2d 17, 21 (1995) (a claim failed where there was no evidence
that any employee of the party charged with actual fraud
"intentionally and knowingly" made a false statement or
concealed a material fact) (emphasis added).
Furthermore, although “[i]t is not always an easy matter to
determine whether a given statement is one of fact or opinion,”
Mortarino v. Consultant Engineering Services, Inc., 251 Va. 289,
293, 467 S.E.2d 778, 781 (1996), the evidence fails to show that
Bonhomme’s statement was about a matter of "material fact" as
8
opposed to an opinion. “It is well settled that a
misrepresentation, the falsity of which will afford ground for
an action for damages, must be of an existing fact, and not the
mere expression of an opinion.” Id.
Cohn’s own testimony during direct examination proves that
Bonhomme expressed an opinion. Cohn stated: “[Bonhomme] had
advised me that in her opinion” Jefferson did not get along with
the prior female office manager. (Emphasis added). In her
cross-examination Cohn stated that Bonhomme’s statements
regarding Jefferson were “only [Bonhomme’s] interpretation of
the situation.” (Emphasis added). The trial court correctly
found that Bonhomme’s statements were opinions and, therefore,
could not provide the basis for sustaining a claim of actual
fraud.
B. Constructive Fraud
"Constructive fraud differs from actual fraud in that the
misrepresentation of material fact is not made with the intent
to mislead, but is made innocently or negligently although
resulting in damage to the one relying on it." Evaluation
Research, 247 Va. at 148, 439 S.E.2d at 390; Nationwide Mut.
Ins. Co. v. Hargraves, 242 Va. 88, 92, 405 S.E.2d 848, 851
(1991) (emphasis added). A person asserting a claim of
constructive fraud must prove that the misrepresentation forming
the basis of the claim caused damage to the one relying on it.
9
Evaluation Research, 247 Va. at 148, 439 S.E.2d at 390. To
prevail in the case at bar, Cohn was required to prove that
Bonhomme's misrepresentation of Temple’s qualifications was the
cause of her failure to become the Pentagon office manager for
KCI.
"The proximate cause of an event is that act or omission
which, in natural and continuous sequence, unbroken by an
efficient intervening cause, produces the event, and without
which that event would not have occurred." Beale v. Jones, 210
Va. 519, 522, 171 S.E.2d 851, 853 (1970). Before the issue of
proximate cause may be properly submitted to the jury, however,
the evidence proving a causal connection must be "sufficient to
take the question out of the realm of mere conjecture, or
speculation, and into the realm of legitimate inference." Id.
(quoting Hawkins v. Beecham, 168 Va. 553, 561, 191 S.E. 640, 643
(1937)).
Assuming Cohn's evidence to be true, her constructive fraud
claim fails because the misrepresentation of Temple’s
qualifications is not the reason she failed to become the
Pentagon office manager for KCI (the injury Cohn claims she
incurred). Under Cohn's theory of the case, the concealment of
Jefferson’s attitude was the cause of the withdrawal of the job
offer and Cohn's failure to get the KCI Pentagon office manager
position. Cohn's evidence was that Bonhomme changed the
10
position offered to Cohn as a result of Jefferson’s bias, not
because she desired to promote Temple. Therefore, any
misrepresentation about Temple, even if made, could not have
been the cause of Cohn's failure to receive the KCI Pentagon
office position, which is the basis of her claimed injury.
Therefore, her claim for constructive fraud must fail.
III. CONCLUSION
The trial court correctly granted KCI's motion to strike
the evidence and motion to set aside the verdict. As to the
claim of actual fraud, Cohn failed to prove both Bonhomme's
intent to conceal and that the statement at issue was about a
matter of "material fact" and not opinion. As to the claim of
constructive fraud, Cohn could not show a causal connection
between the alleged misrepresentation and the injury for which
she claimed damages.
We will, therefore, affirm the judgment of the trial court.
Affirmed.
11