PRESENT: All the Justices 

DEBRA A. BALLAGH 

 OPINION BY 

v. Record No. 141248 JUSTICE WILLIAM C. MIMS 

 June 4, 2015 

FAUBER ENTERPRISES, INC., ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

F. Patrick Yeatts, Judge 

In this appeal, we consider the standard of proof a 

plaintiff must satisfy to prevail upon claims alleging 

violations of the Virginia Consumer Protection Act, Code §§ 

59.1-196 to -207 (the “VCPA”). 

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW 

In May 2010, Debra A. Ballagh bought a parcel of real 

property from Fauber Enterprises, Inc. (“Fauber”). Soon 

thereafter, the basement of the house flooded when it rained. 

In March 2012, Ballagh filed a complaint against Fauber, 

Fauber’s real estate agent, and others. She alleged that the 

basement flooded when it rained at least three times while 

Fauber owned the parcel. She alleged that Fauber obtained 

estimates to waterproof the basement but did not have the work 

done. Rather, she alleged, it simply repaired the water 

damage. 

Ballagh further alleged that she had specifically asked 

about water leaks in the basement before buying the parcel. 
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She alleged that Fauber’s real estate agent assured her, 

through her agent, that there were no leaks or water damage. 

She alleged that although she waived a professional home 

inspection, she and a friend viewed the property and did not 

observe any defects in the basement because Fauber had 

affirmatively concealed them. She alleged that a professional 

home inspection would not have revealed the defects in any 

event. 

Among other things, Ballagh’s complaint included claims 

alleging violations of the VCPA. Specifically, Ballagh claimed 

that the defendants had “misrepresented that goods, including 

real property, were of a particular standard or quality,” in 

violation of Code § 59.1-200(A)(6), and had “used ‘deception, 

fraud, false pretense, false promise, or misrepresentation in 

connection with a consumer transaction,’” in violation of Code 

§ 59.1-200(A)(14). 

The case proceeded to jury trial. At its conclusion, the 

parties offered competing jury instructions as to the standard 

of proof required for the VCPA claims. Ballagh asserted that 

the VCPA requires a plaintiff to prove a violation by only a 

preponderance of the evidence. The defendants asserted that 

because Ballagh’s claims involved alleged misrepresentations, 

she was required to prove them by clear and convincing evidence 

as required for claims of common law fraud. 
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After a hearing, the circuit court agreed with the 

defendants. It rejected the jury instructions Ballagh proposed 

and gave those proposed by the defendants. The jury returned a 

defense verdict. Ballagh moved for a new trial, arguing that 

the instructions on the standard of proof were incorrect. 

After a hearing, the court denied her motion. It thereafter 

entered final judgment on the jury’s verdict. 

We awarded Ballagh this appeal. 

II. ANALYSIS 

In her sole assignment of error, Ballagh asserts that the 

circuit court erred by instructing the jury that she was 

required to prove her VCPA claims by clear and convincing 

evidence, rather than by a preponderance of the evidence. She 

argues that the VCPA creates a new, statutory cause of action 

that is distinct from and in addition to common law fraud. She 

argues that a preponderance of the evidence is the default 

standard of proof for statutory causes of action unless the 

General Assembly expressly provides for a higher standard. She 

argues that the preponderance standard is especially warranted 

here because the express language of the statute states that 

the General Assembly enacted it with a remedial purpose, and 

remedial legislation is to be construed and applied liberally 

by the courts. 
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Questions relating to burden of proof, including the 

standard of proof and which party bears the burden to meet it, 

are questions of law reviewed de novo. Mulford v. Walnut Hill 

Farm Group, LLC, 282 Va. 98, 111, 712 S.E.2d 468, 476 (2011). 

We agree that the VCPA creates a new, statutory cause of 

action distinct from and in addition to common law fraud. 

Owens v. DRS Auto. Fantomworks, Inc., 288 Va. 489, 497, 764 

S.E.2d 256, 260 (2014) (“[T]he 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. . . . Therefore, [it] extends considerably 

beyond fraud.”). The elements of the two claims are different. 

Wilkins v. Peninsula Motor Cars, 266 Va. 558, 562-63, 582 

S.E.2d 581, 587 (2003). In fact, although a plaintiff may not 

recover double damages by claiming both a VCPA violation and 

common law fraud, he or she may present both claims in the same 

action and elect between the damages awarded if both are 

proven. Id. 

We also agree that “the ordinary burden in civil actions 

[is] preponderance of the evidence.” Wyatt v. McDermott, 283 

Va. 685, 700, 725 S.E.2d 555, 563 (2012). Accordingly, we 

presume that when the General Assembly creates a new, statutory 

cause of action, it intends the preponderance standard to apply 

unless it expressly states otherwise. 
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The defendants argue that there are several indicators 

within the VCPA showing that the General Assembly intended a 

higher standard of proof to apply, but none of them are express 

statements of such intent. 

First, the defendants argue that when enacting the VCPA, 

the legislature deviated from the language in the model Uniform 

Deceptive Trade Practices Act. They cite examples where it 

chose to use the words “fraudulent” and “misrepresenting” in 

the VCPA in lieu of the phrases “deceptive” and “causes 

likelihood of confusion or misunderstanding as to” used in the 

model act. Compare Unif. Deceptive Trade Practices Act § 2(a), 

9A U.L.A. 14 (Supp. 1967) with Code § 59.1-200(A). They 

contend that these deviations from the model act express 

legislative intent to conform the statute’s standard of proof 

to the standard for common law fraud. We disagree. 

The principal source from which to determine the General 

Assembly’s intent in enacting a statute is the language it used 

in the statute itself. Virginia Dep't of Health v. Kepa, Inc., 

___ Va. ___, ___, 766 S.E.2d 884, 889 (2015). When that 

language is not sufficiently clear, we also may consider why 

the statute was enacted. Copeland v. Todd, 282 Va. 183, 193, 

715 S.E.2d 11, 16 (2011). 

The legislature seldom chooses to expressly direct the 

courts how to apply a statute. When it does so we must pay 
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special attention to that choice and ensure that it is given 

full effect. The General Assembly chose to include such 

direction in the VCPA. It declared that the VCPA “shall be 

applied as remedial legislation to promote fair and ethical 

standards of dealing between suppliers and the consuming 

public.” Code § 59.1-197. We construe remedial legislation 

liberally, in favor of the injured party. E.I. du Pont de 

Nemours & Co. v. Eggleston, 264 Va. 13, 17, 563 S.E.2d 685, 687 

(2002). 

Thus, the General Assembly’s decision to define the 

elements of the VCPA using terms of art already familiar to the 

bench and bar from common law fraud is insufficient to express 

an intent that plaintiffs must prove claims of VCPA violations 

by clear and convincing evidence. Despite the defendants’ 

argument, any light the adoption of such terms may shed on the 

standard of proof is eclipsed by the legislature’s express 

direction that we apply the VCPA as remedial legislation. That 

language supports a conclusion that it intended that we apply 

the lower, preponderance standard more favorable to the injured 

plaintiff. 

Next, the defendants note that Code § 59.1-207 provides an 

affirmative defense in certain circumstances, and expressly 

provides a preponderance of the evidence standard of proof for 

that defense. They argue that this provision would be 
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superfluous or redundant if the preponderance standard applied 

to the whole VCPA, and such a result would contravene our 

canons of statutory construction. See Owens, 288 Va. at 497, 

764 S.E.2d at 260. 

Although this is a plausible argument, the General 

Assembly’s decision to expressly provide a preponderance 

standard of proof for a defendant’s affirmative defense is not 

an express statement that it intended a clear and convincing 

evidence standard to apply to a plaintiff’s VCPA claims. The 

implication that the higher standard applies to the plaintiff 

because the lower standard applies to the defendant is again 

simply too subtle, especially in the face of both the general 

presumption that the preponderance standard applies to civil 

actions and the rule that remedial legislation is construed in 

favor of the injured party. 

The defendants also argue that a statute is presumed not 

to alter the common law unless the legislature has expressly 

indicated otherwise. They argue that allowing a plaintiff to 

prove a misrepresentation for the purposes of the VCPA by a 

preponderance of the evidence would alter the common law 

without such express indication by the General Assembly. 

However, as noted above, the VCPA creates a new, statutory 

cause of action in addition to common law fraud. It does not 

replace or in any way narrow the tort of common law fraud. 
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Accordingly, applying the preponderance standard to allegations 

of VCPA violations does not alter the common law. 

The defendants also argue that the VCPA provides 

extraordinary relief, including the possibility of treble 

damages, which they contend shows the General Assembly intended 

a higher standard of proof to apply. However, many statutes 

include similar provisions without imposing a higher standard 

of proof. See, e.g., Code §§ 8.01-27.2 (authorizing treble 

damages for giving a bad check for rent), 8.01-27.4 

(authorizing treble damages for failure to apply insurance 

proceeds to unpaid balances for professional services), 18.2-

190.8 (authorizing treble damages for using an unlawful 

electronic communication device for commercial advantage or 

financial gain), 55-216 (authorizing treble damages for waste 

by a tenant of real property), and 56-5 (authorizing treble 

damages for damage to property of a public service 

corporation). Accordingly, the measure of damages allowed by 

the VCPA does not dictate the standard of proof a plaintiff is 

required to satisfy. 

The defendants also argue that applying the preponderance 

standard for VCPA violations would make common law fraud 

obsolete because plaintiffs would allege VCPA violations 

instead to benefit from the lower standard of proof. However, 

as noted above, plaintiffs may, and do, bring claims for a VCPA 
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violation and common law fraud in the same complaint. Wilkins, 

266 Va. at 559, 587 S.E.2d at 582. While the standard of proof 

may be higher for common law fraud, a plaintiff who satisfies 

that higher burden and proves punitive damages may recover far 

more than merely three times his or her actual damages. See, 

e.g., id. at 559, 563, 587 S.E.2d at 582, 584 (upholding a jury 

award of $100,000 punitive damages, 56.68 times the award of 

$1862.86 in actual damages on a claim of common law fraud). 

Accordingly, plaintiffs will pursue claims for common law fraud 

despite the lower standard of proof for VCPA violations, where 

the evidence supports such claims. 

Finally, we note that the highest courts of several states 

have concluded that the preponderance standard applies under 

their own states’ similar statutes. See, e.g., Aguilar v. 

Atlantic Richfield Co., 24 P.3d 493, 521 (Cal. 2001); Service 

Rd. Corp. v. Quinn, 698 A.2d 258, 265 (Conn. 1997); Avery v. 

State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 856 (Ill. 

2005); Kelly v. Vinzant, 197 P.3d 803, 812-13 (Kan. 2008); 

State v. Price-Rite Fuel, Inc., 24 A.3d 81, 87 (Me. 2011); Hair 

Excitement, Inc. v. L'Oreal U.S.A., Inc., 965 A.2d 1032, 1038 

(N.H. 2009); Liberty Mut. Ins. Co. v. Land, 892 A.2d 1240, 

1247-48 (N.J. 2006); State ex rel. Spaeth v. Eddy Furn. Co., 

386 N.W.2d 901, 903 (N.D. 1986); State ex rel. Redden v. 

Discount Fabrics, Inc., 615 P.2d 1034, 1038-39 (Or. 1980); 
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Smith v. Baldwin, 611 S.W.2d 611, 616 (Tex. 1980); Poulin v. 

Ford Motor Co., 513 A.2d 1168, 1172 (Vt. 1986). The principles 

guiding those courts are persuasive. 

III. CONCLUSION 

For these reasons, we conclude that a plaintiff must prove 

a violation of the VCPA by a preponderance of the evidence 

rather than by clear and convincing evidence. Accordingly, we 

will reverse the judgment of the circuit court and remand the 

case for further proceedings consistent with this opinion. 

Reversed and remanded.