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 
2

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 
3

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 
4

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. 
5

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 
6

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. 
7

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 
8

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

to declare him an adverse witness3

 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"). 
9

 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. 
10

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., 256 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 
11

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 
12

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." 
13

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 
14

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. 
15

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 
16

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.