PRESENT: Kinser, C.J., Lemons, Millette, Mims, McClanahan,
and Powell, JJ., and Russell, S.J.

RICHARD L. OWENS, SR., ET AL.
                                           OPINION BY
v.   Record No. 140171         SENIOR JUSTICE CHARLES S. RUSSELL
                                        October 31, 2014
DRS AUTOMOTIVE FANTOMWORKS, INC.,
ET AL.

           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                      John E. Clarkson, Judge

      This appeal arises out of a dispute concerning the repair

and renovation of an antique automobile.    It requires us to

decide whether the plaintiffs' evidence was sufficient to

support their allegations of both common law fraud and

violations of the Virginia Consumer Protection Act ("VCPA"),

Code § 59.1-196, et seq.

                         Facts and Proceedings

      In July 2012, Virginia Beach residents Richard L. Owens,

Sr. and his wife Cynthia M. Owens (the plaintiffs) shipped to

Virginia a 1960 Ford Thunderbird they purchased in Rhode Island

for $11,500.   The car needed extensive repairs and restoration.

Mr. Owens testified that he just wanted "something to ride to

the golf course once in a while."

      The plaintiffs selected DRS Automotive Fantomworks, Inc., a

business in Norfolk, and its owner, Daniel R. Short (the

defendants), to do the work.    Before either party had made any

detailed inspection of the car, Mr. Owens told Mr. Short that he
wanted DRS to install a reliable fuel-injected engine, a modern

suspension, and new brakes.   Mr. Short could not quote an exact

price without a detailed inspection of the car.   Nevertheless,

he gave Mr. Owens a list of repairs he recommended and estimated

that, assuming there were no surprises upon a detailed

inspection and no changes in the proposed work, the project

could be completed for no more than $40,000.   Mr. Owens agreed

to proceed.   By a check signed by Mrs. Owens, the plaintiffs

paid the defendants $15,000 as an initial deposit.   They made a

second $15,000 payment after replacement parts had been

purchased.    The parties never entered into a written contract.

     Mr. Short advised the plaintiffs that the most economical

way to find a replacement engine would be to purchase a "donor

car" that contained a compatible engine with low mileage.     Such

a "donor car" could sometimes be purchased at auction at a low

price and could provide many other replacement parts at much

lower cost than parts purchased at retail.   The plaintiffs

testified, and the defendants denied, that Mr. Short told them

that such a donor car could be purchased at auction for "a few

thousand dollars" which they believed meant $2,000 to $3,000.

     The defendants located a 2001 Ford Crown Victoria Police

Interceptor (the Interceptor) for sale by Lieutenant Alexander

Theiss, USN, whose home was just "a couple [of] blocks down the

street" from the defendants' place of business.   The car had

                                  2
been damaged in an accident but its engine and drivetrain were

intact.   Mr. Short considered the engine and drivetrain to be

compatible with the plaintiffs' Thunderbird.

     Lieutenant Theiss had advertised the Interceptor on the

Internet for $2,000, but Mr. Short denied that he had ever seen

the advertisement.   Instead, Mr. Short testified that the

Interceptor had come to his attention because someone gave him

Lt. Theiss' telephone number.   Lieutenant Theiss had placed a

"for sale" sign in the Interceptor's window, containing his

telephone number but not an asking price.

     After some negotiations and a test drive, Mr. Short and Lt.

Theiss agreed on a price of $6,000 for the Interceptor.   On

July 13, 2012, Mr. Short gave Lt. Theiss $4,000 in cash and Lt.

Theiss gave him a handwritten bill of sale, reciting a $6,000

purchase price.   They agreed that when the $2,000 balance was

paid, the Interceptor would be delivered to Mr. Short.    A few

days later, Mr. Short gave Lt. Theiss a check for $2,000 and

took possession of the Interceptor.

     The Interceptor had been titled in Florida.   A copy of the

Florida certificate of title was introduced in evidence, showing

a sale of the Interceptor from Alexander Charles Theiss to Dan




                                 3
Short on July 13, 2012 for a price of $6,000.   Both parties

signed the recorded transfer at the bottom of the certificate. 1

     Mr. Short had given the plaintiffs a written notice of the

terms upon which the defendants conducted their business.      One

of these conditions was that a 25% markup would be charged for

all required parts that were to be purchased for the work.      The

plaintiffs made no objection to these terms.    After purchasing

the Interceptor, Mr. Short gave Mr. Owens a list of anticipated

costs for parts and labor to complete the contemplated work.      It

estimated a total cost to the plaintiffs as $38,093.48.   The

cost for the purchase of the Interceptor, including the markup,

was stated as $7,200.   The defendants later amended this item to

$7,500.

     After receiving this list, Mr. Owens delivered the

plaintiffs' second check for $15,000 to Mr. Short.   During the

next two months, Mr. Owens made frequent visits to DRS shop to

discuss the continuing work and made a number of requests for

additional work.   As late as September 11, 2012, he sent an

email to Mr. Short requesting that he "add to your to-do list" a




1
  The check, the bill of sale, and the certificate of title were
all introduced in evidence during the plaintiffs' case. Because
the plaintiffs called both Lt. Theiss and Mr. Short as witnesses
for the plaintiffs at trial, the facts recited above were all
before the court when it considered a motion to strike the
plaintiffs' evidence.
                                 4
series of additional items, including rust repair, interior

fabrics, finish, and design.     During this time, the plaintiffs

made no objection to the $6,000 price paid for the Interceptor.

     The apparently amicable dealings between the parties came

to an abrupt end when Mrs. Owens, who was an attorney, wrote a

letter to Mr. Short dated September 22, 2012 on her professional

letterhead.   The letter stated that she was acting on behalf of

Mr. Owens and herself.   It demanded extensive documentation of

all costs for parts and labor; identification, with contact

information, for all suppliers; and other information pertinent

to the project.   The letter threatened litigation if these

demands were not fully complied with within five days.

     Mr. Short said he was "stunned" by the letter.    He

responded in writing that the defendants would suspend work on

the project until the issues between the parties were resolved.

He offered the plaintiffs two opportunities to have the vehicle

inspected by a representative of their choice and to have both

the Thunderbird and the Interceptor removed from the defendants'

premises.   The plaintiffs made no response and filed this action

in the circuit court, alleging breach of contract, violation of

the VCPA, fraud and detinue. 2




2
  The detinue count claimed a right to recover the Thunderbird
and the Interceptor. Counsel agreed on an arrangement to return
                                   5
     The case proceeded to a three-day jury trial.   At the

conclusion of the plaintiffs' case, the defendants moved the

court to strike the plaintiffs' evidence as to all counts.     The

court granted the motion as to the fraud and VCPA counts and

overruled it as to the count for breach of contract.     The

defense presented its evidence and the defendants' motion to

strike was renewed.   The court denied the motion and instructed

the jury as to the count for breach of contract.   The jury

returned a verdict for the defendants and the court entered

judgment on the verdict.   We awarded the plaintiffs an appeal.

                                Analysis

     The plaintiffs assign three errors: (1) that the court

erred in striking the evidence based on a finding that two

witnesses were "believable" and "credible," thus usurping the

function of the jury; (2) that the court erred in striking the

evidence on the VCPA claim by ruling that a VCPA claim requires

proof of fraud; and (3) that the court erred by striking the

VCPA claim because the evidence was sufficient to support a

judgment for the plaintiffs for violations of the VCPA.

     The first and second assignments of error present questions

of law.   On appeal, we review such questions de novo.    Davis v.

County of Fairfax, 282 Va. 23, 28, 710 S.E.2d 466, 468 (2011).



these items to the plaintiffs. The detinue count was dismissed
in the circuit court and is not involved in this appeal.
                                 6
     When reviewing the evidence upon a defendant's motion to

strike the plaintiff's evidence, the duty of the court is to

accept as true all the evidence favorable to the plaintiff as

well as any reasonable inference a jury might draw therefrom.

Austin v. Shoney's, Inc., 254 Va. 134, 138, 486 S.E.2d 285, 287

(1997).   We therefore examine the state of the evidence before

the court at the close of the plaintiffs' case.   The crucial

issue at that stage was whether the defendants had paid $6,000

for the Interceptor as they contended, or a lesser price, as the

plaintiffs contended.    A price of $6,000, with the agreed 25%

markup, would have justified the $7,500 item for which the

plaintiffs were billed; any lesser price actually paid by the

defendants would have made the $7,500 amount an overcharge

obtained by deception.

     The only witnesses who had any knowledge of the transaction

were Mr. Short and Lt. Theiss.   Both testified that the purchase

paid for the Interceptor was $6,000.   The only documentary

evidence on that point consisted of the bill of sale and the

Florida title.   Both showed a sales price of $6,000.   No

evidence was presented of any lesser or different price.

     As noted, both witnesses were called by the plaintiff.

     When a defendant is called as an adverse witness
     the plaintiff is not bound by such of his testimony
     as is in conflict with evidence introduced by the
     plaintiff; but the plaintiff is bound by so much of


                                  7
     the testimony of the defendant as is clear,
     reasonable and uncontradicted.

Weddle v. Draper, 204 Va. 319, 322, 130 S.E.2d 462, 465 (1963)

(emphasis added).

     Mr. Short's testimony as to the price of the Interceptor

was uncontradicted and the plaintiffs are bound by it.

Lieutenant Theiss was also called as a witness for the

plaintiffs.   Although plaintiffs' counsel attempted to cross-

examine him to attack his credibility, the court was never asked

to declare him an adverse witness 3 and repeatedly sustained

objections to leading questions.       The plaintiffs are therefore

bound by his uncontradicted testimony.      See Clarke v. Cosby, 154

Va. 267, 271, 153 S.E. 727, 728 (1930).

     When considering the motion to strike the plaintiffs'

evidence, the court had to determine whether there was an issue

of fact in dispute.   Here, the jury had evidence before it that

a $6,000 price had been paid for the Interceptor and a complete

absence of evidence that any other price had been paid.




3
  See, e.g., Va. R. Evid. 2:611(c) (providing that "[l]eading
questions should not be used on the direct examination of a
witness except as may be permitted by the court in its
discretion to allow a party to develop the testimony" and that
"[w]henever a party calls a hostile witness, an adverse party, a
witness having an adverse interest, or a witness proving
adverse, interrogation may be by leading questions").
                                   8
     The plaintiffs contend that there was circumstantial

evidence to permit the jury to infer that the two witnesses had

testified untruthfully and that a lesser price had been paid.

Our examination of the record, however, shows that those

circumstances do not tend to prove any fact, but are merely

supportive of a suspicion based entirely on conjecture. 4

     Like presumptions, inferences are never allowed
     to stand against ascertained and established facts
     . . . . an inference which the plaintiff says would
     impose liability upon the defendants must give way
     to the positive, uncontradicted evidence which
     exonerates the defendants from liability and
     demonstrates that the inference is based upon
     speculation and conjecture.

Ragland v. Rutledge, 234 Va. 216, 219, 361 S.E.2d 133, 135

(1987) (citations omitted).

     It is true, as the plaintiffs argue, that the court

commented, when making its ruling, that the testimony of the two

witnesses was credible and believable, but in the context of the

record before the court, those comments were indicative only of



4
  The circumstantial evidence consisted of Lt. Theiss' earlier
Internet advertisement of the Interceptor for sale for $2,000
and that someone at DRS had responded to the advertisement by
email. Mr. Short denied that he was the author of the email and
Lt. Theiss had no recollection of it. Discovery directed to Lt.
Theiss, Mr. Short, DRS, Craigslist and Microsoft Corporation
failed to produce any such email. The plaintiffs contend that
this, coupled with the fact that part of the price paid for the
Interceptor was in the form of a $2,000 check, gives rise to a
suspicion from which the jury could conjecture that the
testimony of the witnesses was untrue and the documents
contained false information.
                                9
the fact that their testimony had not been refuted and was not,

on its face, unworthy of belief.      We therefore hold that the

court did not usurp the function of the jury.

     The second and third assignments of error overlap and will

be considered together.    The second assignment of error asserts

that the court erred in holding that a violation of the VCPA

requires proof of fraud.   Common law fraud consists of (1) a

false representation, (2) of a material fact, (3) made

intentionally and knowingly, (4) with intent to mislead, (5)

reliance thereon by the party misled, and (6) resulting damage

to the party misled.   The plaintiff bears the burden of proving

these elements by clear and convincing evidence.      Richmond

Metro. Auth. v. McDevitt Street Bovis, Inc., 255 Va. 553, 557,

507 S.E.2d 344, 346 (1998).

     Proof of fraud in a consumer transaction is alone

sufficient to establish a violation of the VCPA, but the

legislative purpose underlying the VCPA was, in large part, to

expand the remedies afforded to consumers and to relax the

restrictions imposed upon them by the common law.     That remedial

purpose would be nullified by an interpretation of the VCPA that

construed it as merely declarative of the common law.     We adhere

to rules of statutory construction that discourage any

interpretation of a statute that would render any part of it

useless, redundant or absurd.   Instead, we seek to read

                                 10
statutory language so as to give effect to every word.

Lynchburg Division of Social Services v. Cook, 276 Va. 465, 483,

666 S.E.2d 361, 370 (2008).   Therefore, we agree with the

plaintiffs' argument that the VCPA's proscription of conduct by

suppliers in consumer transactions extends considerably beyond

fraud.

     The VCPA clearly does not require the consumer to prove in

every case that misrepresentations were made knowingly or with

the intent to deceive, because of its additional provision that

damages may be trebled, but only in cases where the court finds

that the violation was "willful."      Code § 59.1-204(A).

     The VCPA, however, still requires proof, in

misrepresentation cases, of the elements of reliance and

damages.   Code § 59.1-204(A) provides, in pertinent part:      "Any

person who suffers loss as the result of a violation of this

chapter shall be entitled to initiate an action to recover

actual damages or $500, whichever is greater."      (Emphasis

added.)

     Applying those principles to the present case, it is

apparent, as stated above, that the plaintiffs failed to produce

evidence of misrepresentations concerning the purchase price of

the Interceptor, the donor car.    The plaintiffs also argue that

the defendants violated the VCPA by misrepresentations

concerning whether the donor car would be purchased at an

                                  11
auction, whether its engine would be "certified" (the term was

never defined), 5 and Mr. Short's "certifications in multiple

automotive restoration fields."

     If these were misrepresentations, the plaintiffs offered no

evidence of any loss they suffered from reliance upon them.

They never complained about the quality of the parts the

defendants provided, the time required to complete the project,

or the quality of the work that was being performed until the

plaintiffs interrupted it.   The plaintiffs' evidence, therefore,

failed to meet the requirements of Code § 59.1-204(A):    reliance

and resulting damages.   If an unwritten contract existed between

the parties, the jury, after hearing all the evidence, found

that the defendants had not breached it.

     In granting the motion to strike, the circuit court

commented that there had been no proof of fraud because the

plaintiffs' complaint expressed all allegations of VCPA

violations in terms of the elements of common law fraud.   We do

not construe the court's words to constitute a ruling that all

claims under the VCPA must be supported by proof of fraud.




5
  Mrs. Owens testified that she did not care what kind of an
engine would be provided as long as it was "reliable."
                                  12
                           Conclusion

     For the reasons stated, we find that the evidence on the

VCPA claim was insufficient to go to the jury and we find no

error in the rulings of the circuit court.   Accordingly, we will

affirm the judgment.

                                                         Affirmed.


JUSTICE POWELL, with whom CHIEF JUSTICE KINSER and JUSTICE MIMS
join, dissenting in part and concurring in part.

     In my opinion, the majority fails to recognize key evidence

and fails to give the proper weight to the circumstantial

evidence establishing that Mr. Short defrauded the plaintiffs.

Therefore, I must respectfully dissent.

     Under the majority’s logic, the circumstantial evidence of

fraud in this case must be disregarded in the face of the

alleged wrongdoers’ claim that they did not commit fraud.    Such

a holding ignores this Court’s long recognition that “it is not

necessary that fraud be proved by direct and positive evidence.

Circumstantial evidence is not only sufficient, but in most

cases is the only proof that can be adduced.”   Cook v. Hayden,

183 Va. 203, 209, 31 S.E.2d 625, 627 (1944).

     Fraud is seldom, if ever, provable by direct

     testimony, but usually must be shown by circumstances

     which are sufficient to convince fair-minded men that

                               13
     they would not have occurred without the existence of

     a fraudulent purpose and design.    Fraud is a mixed

     question of law and fact but, in most cases, is a jury

     question.   While fraud may be shown by circumstantial

     evidence, it must have a logical and substantial basis

     and can not rest upon vague suspicion and surmise.


French v. Beville, 191 Va. 842, 856, 62 S.E.2d 883, 889 (1951).

     There is clear evidence in the record from which the jury

could have concluded that Lt. Thiess only asked $2,000 for the

Interceptor and that was the price DRS paid.    Although the

majority states that it reviewed the evidence in the light most

favorable to the plaintiffs, it fails to give the appropriate

weight to the circumstantial evidence.    In my opinion, when all

of the circumstantial evidence is properly considered, it is

more than sufficient to allow the jury to decide the issue.

     At trial, Mrs. Owens testified that Mr. Short was only

authorized to spend between $2,000 and $3,000 on the donor car.

The seller, Lt. Thiess, had advertised his Interceptor on

Craigslist with an asking price of $2,000.    The record further

demonstrates that, at 10:51 A.M. on July 13, 2012, Mr. Short *




     *
       A Craigslist server document showed that Mr. Short’s email
address was used to reply to the ad on July 13, 2012.

                                14
responded to the advertisement via email.   At 11:03 A.M.,

exactly twelve minutes later, Lt. Thiess called DRS.    Then, on

July 16, 2012, DRS issued a check to Lt. Thiess for $2,000 and

took possession of the Interceptor.

     Thus, contrary to the majority opinion, the jury was not

left with a “complete absence of evidence that any other price

had been paid” for the Interceptor.    Rather, viewed in the light

most favorable to the plaintiffs, circumstantial evidence

establishes that Mr. Short and DRS purchased the Interceptor for

only $2,000.   This evidence directly contradicts the claim that

the Interceptor was purchased for $6,000.

     Furthermore, the majority also fails to give proper weight

to the role of the jury under the facts of this case.   The

majority acknowledges the rule that:

     When a defendant is called as an adverse witness the

     plaintiff is not bound by such of his testimony as is

     in conflict with evidence introduced by the plaintiff;

     but the plaintiff is bound by so much of the testimony

     of the defendant as is clear, reasonable and

     uncontradicted.


Weddle v. Draper, 204 Va. 319, 322, 130 S.E.2d 462, 465 (1963).

     While the majority rests its opinion on the basis that the

testimony was uncontradicted, it gives no weight to the fact
                                15
that the jury could have found that the testimony was

unreasonable in light of the fact that Mr. Short paid three

times more for the Interceptor than Lt. Thiess advertised.

Therefore, in my opinion, the trial court erred in granting the

motion to strike as to the fraud claim.

     With regard to the second and third assignments of error, I

agree with the majority’s legal analysis, but I ultimately

disagree with the conclusion the majority reaches.    The

allegations underpinning the plaintiff’s fraud claim were

incorporated into the VCPA claim.   Therefore, for the reasons I

have previously stated, I believe that the trial court erred in

granting the motion to strike as to the VCPA claim.

Accordingly, I would reverse the trial court and remand for

further proceedings below.




                               16
