PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and 

Agee,1

 JJ., and Russell, S.J.

SUPERVALU, INC., ET AL. 

v. Record No. 071995 OPINION BY 

JUSTICE BARBARA MILANO KEENAN 

 September 12, 2008 

JONATHAN F. JOHNSON 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Margaret P. Spencer, Judge 

 In this appeal, we consider whether the circuit court 

erred in refusing to set aside a jury verdict in favor of a 

plaintiff on claims of constructive fraud and intentional 

infliction of emotional distress. 

I. Procedural History 

 In July 2005, Jonathan F. Johnson, former owner of 

several grocery stores in the Richmond area, filed an amended 

motion for judgment in the circuit court, in his individual 

capacity, against SuperValu, Inc. (SuperValu), a grocery 

wholesaler and retailer, and its subsidiary Richfood, Inc. 

(Richfood). In his pleading, Johnson alleged that SuperValu 

and Richfood had committed actual fraud, constructive fraud, 

intentional infliction of emotional distress, and tortious 

interference with business expectancy. 

 1

 Justice Agee participated in the hearing and decision of 

this case prior to his retirement from the Court on June 30, 

2008. 
 The case proceeded to a twelve-day jury trial. During 

the trial, SuperValu and Richfood made a motion to strike the 

evidence at the conclusion of Johnson’s case in chief and at 

the end of all the evidence. The circuit court denied both 

motions. 

 The jury returned a verdict in favor of SuperValu and 

Richfood on the claims of actual fraud and tortious 

interference with business expectancy, and a verdict in favor 

of Johnson on the claims of constructive fraud and intentional 

infliction of emotional distress. The jury awarded Johnson 

$15,500,000 in damages on the constructive fraud claim, and 

$500,000 in damages on the intentional infliction of emotional 

distress claim. 

 SuperValu and Richfood filed a post-trial motion, in 

which SuperValu contended that the evidence was insufficient 

as a matter of law to support the verdict in favor of Johnson. 

The circuit court denied the post-trial motion and entered 

final judgment in accordance with the jury verdict. We 

awarded SuperValu and Richfood this appeal. 

II. Evidence 

 The evidence at trial showed that Johnson owned 

Marketplace Holdings, Inc., which served as a holding company 

for The Market, LLC, and Community Pride, Inc. (all three 

corporations will be referred to collectively as MPH 

2 
Companies). Between 1992 and 2004, MPH Companies owned and 

operated eight grocery stores in the Richmond area. During 

his time in the grocery business, Johnson developed several 

successful strategies for marketing to urban consumers. 

 Richfood, in its capacity as a wholesale grocery 

distributor, had supplied MPH Companies with grocery products 

for many years. After SuperValu acquired Richfood in 1999, 

SuperValu became the exclusive grocery supplier for MPH 

Companies. SuperValu, one of the nation’s largest grocery 

wholesalers, also provided MPH Companies with other services, 

including warehousing and accounting, and extended to MPH 

Companies credit and loans. 

 In 2001, MPH Companies entered into a settlement 

agreement with SuperValu to resolve several long-standing 

problems between MPH Companies and Richfood. In the 

agreement, SuperValu forgave MPH Companies’ and Johnson’s 

personal debt to SuperValu, which exceeded $17 million. 

SuperValu also agreed to provide financing for MPH Companies 

to open and operate a new store, the Market at Tobacco Row 

(the Market) in Richmond. 

 Under the terms of the settlement agreement, SuperValu 

also entered into a consulting contract with Johnson and 

agreed to pay him $2 million over a five-year period. 

However, the evidence showed that SuperValu never asked 

3 
Johnson to perform any consulting services under this 

contract. Finally, the parties’ settlement agreement stated 

that SuperValu would “provide appropriate assistance for other 

growth opportunities, subject to [the] SuperValu standard 

screening approval process.” Two years after the settlement 

agreement, MPH Companies experienced financial difficulties. 

Johnson and Kenneth W. Smither, president of Marketplace 

Holdings, Inc., both concluded that in order for MPH Companies 

to remain in business, they needed to expand. Executives from 

SuperValu, however, testified that they cautioned Johnson to 

stabilize his current store operations before attempting to 

acquire new stores. 

 In March 2003, Smither sent a letter to K. Richard Lane, 

president of SuperValu’s eastern region, detailing MPH 

Companies’ accomplishments and problems in the past year and 

outlining strategic plans. In the letter, Smither stated that 

MPH Companies had depleted their capital funds due to overhead 

expenses and the opening of the Market, which had failed to 

meet sales forecasts and had experienced shortfalls in 

relation to those forecasts ranging between $50,000 and 

$70,000 per week. Smither indicated that due to recent 

financial performance problems, MPH Companies could not obtain 

additional bank loans. Smither explained that MPH Companies 

needed SuperValu’s assistance to replenish MPH Companies’ 

4 
capital funds, to renovate one store, and to explore expansion 

opportunities. 

 SuperValu executives testified that they were concerned 

about the amount of credit SuperValu had already extended to 

MPH Companies. Therefore, according to the executives, 

SuperValu declined Smither’s requests for additional funding 

but agreed to provide to Johnson advance payment under his 

consulting agreement so that Johnson could invest those funds 

and complete the proposed store remodeling. 

 After this decision, Johnson contacted Michael Jackson, 

president and chief operating officer for SuperValu, and asked 

him to reconsider SuperValu’s denial of additional funding. 

Jackson testified that he explained to Johnson that SuperValu 

would not provide MPH Companies with additional money, but 

discussed with Johnson specific strategies for stabilizing his 

business and reducing overhead costs. According to Jackson, 

Johnson stated that he planned to invest in MPH Companies the 

money he obtained from the consulting agreement in order to 

stabilize his existing store operations. 

 Johnson, however, testified that he agreed to invest in 

MPH Companies the funds he received from the consulting 

agreement because Jackson promised Johnson that SuperValu 

would support MPH Companies’ efforts to expand. According to 

Johnson, Jackson told him, “[I]f you put your money where your 

5 
mouth is, we’ll put our money where our mouth is.” Johnson 

testified that he relied on this statement, and on Jackson’s 

other assurances that SuperValu would support MPH Companies’ 

expansion plans, when Johnson invested in MPH Companies the 

sum of $827,000 obtained from the advancement of the 

consulting fees. 

 In July 2003, Johnson approached the owner of Camellia 

Food Stores, Inc. (Camellia) and discussed Johnson’s interest 

in purchasing Camellia. Camellia owned 18 stores in the 

Eastern Shore region of Virginia and had experienced financial 

difficulties, having declared bankruptcy in 2001. 

 Also in July 2003, Johnson and Smither met with SuperValu 

executives to discuss MPH Companies’ possible acquisition of 

Camellia. MPH Companies needed SuperValu’s approval because 

both Camellia and MPH Companies operated under supply 

agreements with SuperValu. 

 Joseph Della Noce, executive vice president of market 

support services for SuperValu, testified that when this 

meeting occurred, SuperValu had not yet made a decision about 

MPH Companies’ proposed acquisition of Camellia. However, 

Della Noce stated that he became concerned about the proposal 

after the meeting. Della Noce explained that the demographics 

of the Eastern Shore region, where the Camellia stores were 

located, were different from Richmond’s demographics. When 

6 
asked by Johnson’s counsel, “Did you have concerns of whether 

or not [Johnson] could serve the Caucasians in the Eastern 

Shore,” Della Noce replied, “Yes.” 

 In August 2003, Johnson and Smither met with executives 

from SuperValu and requested assistance in funding the 

acquisition of Camellia. Johnson asked the executives to 

consider several options for funding, including an option in 

which MPH Companies would sell one of its stores and use the 

proceeds to purchase Camellia, and SuperValu would provide 

additional funding for MPH Companies to renovate the Camellia 

stores. Della Noce testified that he was concerned about the 

amount of risk and additional debt that would result from the 

acquisition. SuperValu ultimately denied MPH Companies’ 

request for funding. 

 Despite this decision by SuperValu, Johnson continued MPH 

Companies’ efforts to acquire Camellia. Johnson and Smither 

testified that SuperValu attempted to prevent the acquisition 

of Camellia by requiring MPH Companies to purchase SuperValu’s 

stock options in Camellia and by requiring payment on an 

outstanding debt before the acquisition. In addition, Johnson 

presented evidence that during MPH Companies’ negotiations 

with Camellia, SuperValu had revealed confidential information 

concerning MPH Companies to another potential buyer for 

Camellia. According to Johnson and Smither, these actions by 

7 
SuperValu ultimately caused the negotiations with Camellia to 

fail. 

 By April 2004, MPH Companies could no longer meet current 

and past-due financial obligations, and MPH Companies’ 

remaining grocery stores closed. At that time, MPH Companies 

owed SuperValu about $3.7 million. 

 Susan E. Rydberg, a former employee in SuperValu’s 

information technology department, testified that in 2001 she 

heard members of SuperValu’s senior management team discuss 

“phasing out” Johnson because he was a “complainer” and 

because SuperValu wanted to replace Johnson’s stores with 

stores owned by SuperValu. When asked whether SuperValu’s 

plans regarding Johnson, who is African-American, could have 

been racially motivated, Rydberg stated that SuperValu 

generally appeared to “phase out” a large number of women, 

African-Americans, and people over the age of 40. 

 SuperValu executives testified that they had never heard 

the terms “phasing out” or “staging out” and had no reason to 

attempt to damage Johnson’s business enterprises. Jeffrey 

Noddle, chief executive officer of SuperValu, testified that 

SuperValu’s wholesale business is dependent upon the success 

of independent retailers. Richard Lane, former president of 

SuperValu’s “eastern region,” acknowledged, however, that 

8 
SuperValu owned several Save-A-Lot grocery stores, which 

competed with the stores owned by MPH Companies. 

 Several witnesses testified that they observed a drastic 

decline in Johnson’s physical and emotional health after the 

MPH Companies’ stores closed. Johnson also presented expert 

medical testimony indicating that Johnson suffered from posttraumatic stress disorder, severe depression, and other 

physical health problems. 

 In addition, Johnson testified that after the stores 

closed, he was embarrassed and suffered a loss of credibility, 

which negatively affected his consulting business. Eric C. 

Frye, a financial analyst who qualified as an expert on the 

subject of “economic loss,” testified that Johnson suffered 

various monetary losses in the total amount of $12.5 million 

as a result of SuperValu’s actions. 

III. Jury Instructions 

 The jury received 46 instructions addressing Johnson’s 

four different claims. The instructions relevant to this 

appeal were read to the jury in the order described below. 

 In jury instruction 23, the circuit court provided a 

definition of actual fraud, which stated: “Actual fraud is a 

misrepresentation of a material fact, knowingly and 

intentionally made, with the intent to mislead another person, 

which that person relied upon with the result that he was 

9 
damaged by it.” The jury then received instructions 24-26, 

which defined the concepts of material fact and reliance, and 

discussed certain circumstances that may be considered in 

deciding claims involving fraud. 

 Next, the circuit court read instruction 27 to the jury, 

stating: 

If you find that Plaintiff’s fraud claims are premised on 

promises to be carried out in the future, as distinct 

from past or present facts, you may not make a finding of 

fraud merely because the promise was not kept. Rather, 

you may only find in favor of the Plaintiff if he 

demonstrates by clear and convincing proof that at the 

time the representation was made the Defendant did not 

intend to perform the future promise. 

 Jury instructions 28-31 addressed the concepts of 

fiduciary duty, the elements of an actual fraud claim, and the 

damages recoverable for actual fraud when a plaintiff has 

proved that the defendant acted with actual malice. Jury 

instruction 32 informed the jury that in considering damages 

on the actual fraud claim, the jury could consider Johnson’s 

loss of earnings in the past or future, his personal financial 

losses directly related to the loss of business, his damages 

caused by embarrassment or humiliation as a result of the loss 

of business, and mental anguish Johnson suffered in the past 

and may suffer in the future. 

 Jury instruction 33, the first instruction specifically 

addressing constructive fraud, defined constructive fraud as 

10 
“a misrepresentation of a material fact, innocently or 

negligently made, with the intent that a person will rely on 

it and which that person relied upon with the result that he 

was damaged by it.” Jury instruction 34 defined the term 

“misrepresentation” and cautioned that a misrepresentation 

“must be made concerning an actually existing or past fact. A 

promise, an expression of interest, or an expectation or 

opinion concerning the future is not a misrepresentation.” 

 Jury instructions 35-38 addressed the concepts of 

negligence and contributory negligence in the context of a 

constructive fraud claim. Thereafter, jury instruction 39 

reviewed the elements of a constructive fraud claim, and jury 

instruction 40 informed the jury that if it found in favor of 

Johnson on the constructive fraud claim, the jury was 

permitted to “award those damages which would restore the 

plaintiff to the financial position he would have been in but 

for his detrimental reliance on the alleged fraud.” 

IV. Analysis 

Constructive Fraud

 SuperValu and Richfood (collectively, SuperValu) argue 

that the evidence is insufficient as a matter of law to 

support the jury verdict on the claim of constructive fraud. 

Distinguishing constructive fraud from actual fraud, SuperValu 

contends that an action for constructive fraud must be based 

11 
on an innocent or negligent misrepresentation of present fact 

and, as the jury was instructed in this case, may not be based 

on a promise of future action. SuperValu asserts that Johnson 

solely alleged and sought to prove that SuperValu did not 

fulfill promises to assist Johnson’s business in the future. 

SuperValu further observes that while promises of future 

action can form the basis of a claim for actual fraud, the 

jury in this case rejected Johnson’s claim of actual fraud. 

 In response, Johnson asserts that the law of the case 

doctrine bars SuperValu’s argument. Johnson contends that 

jury instruction 27 permitted the jury to reach a verdict for 

Johnson on constructive fraud, based on evidence that 

SuperValu made promises to Johnson that SuperValu never 

intended to keep, because that instruction referred only to 

“fraud,” rather than to “actual fraud.” According to Johnson, 

instruction 27 presented a legally inaccurate definition 

encompassing constructive fraud that nevertheless was binding 

on the parties because SuperValu failed to raise an objection 

to this instruction. Thus, Johnson maintains that because he 

proved that SuperValu made promises to aid Johnson in his 

business in the future without any intent to keep those 

promises, the jury could have based its constructive fraud 

award on the language in jury instruction 27. We disagree 

with Johnson’s arguments. 

12 
 When reviewing jury instructions on appeal, we read the 

instructions together and consider them as a whole. H. W. 

Miller Trucking Co. v. Flood, 203 Va. 934, 937, 128 S.E.2d 

437, 440 (1962); Van Duyn v. Matthews, 181 Va. 256, 261, 24 

S.E.2d 442, 444 (1943); see Edlow v. Arnold, 243 Va. 345, 350, 

415 S.E.2d 436, 438-39 (1992); Lerwill v. Regent Van & 

Storage, 217 Va. 490, 496, 229 S.E.2d 880, 884 (1976). Jury 

instructions that contain incorrect statements of law but were 

agreed upon by the parties become the law of the case. Ulloa 

v. QSP, Inc., 271 Va. 72, 80, 624 S.E.2d 43, 48 (2006); King 

v. Sowers, 252 Va. 71, 76-77, 471 S.E.2d 481, 485 (1996). 

The law of the case doctrine, however, is inapplicable 

here because the parties did not agree to an improper jury 

instruction. Rather, instruction 27 provided a correct 

statement of law regarding actual fraud, and the instructions 

regarding constructive fraud unequivocally informed the jury 

that a claim of constructive fraud may not be based on a 

promise of future action. 

The jury instructions given with regard to each of 

Johnson’s claims were read together and were comprehensive, 

including the elements of the respective claims and the 

damages that could be recovered for each claim. The fact that 

jury instruction 27 referred to “fraud” and not to “actual 

fraud” is not determinative. That instruction was given after 

13 
the instruction defining “actual fraud,” and before both the 

instruction stating the required elements of an actual fraud 

claim and the instruction explaining the damages recoverable 

for actual fraud. When considered in the context of the 

entire jury charge, it is apparent that jury instruction 27 

applied only to the claim of actual fraud, and that the jury 

was instructed separately with regard to the constructive 

fraud claim. Therefore, we conclude that the law of the case 

doctrine does not apply to bar SuperValu’s challenge to the 

jury verdict on the constructive fraud claim. 

We next consider whether the evidence was sufficient to 

support the jury verdict on the constructive fraud claim. To 

prevail on a constructive fraud claim, a plaintiff must show 

by clear and convincing evidence that the defendant 

negligently or innocently made a false representation of 

material fact, and that the plaintiff suffered damage as a 

result of his reliance upon that misrepresentation. Prospect 

Dev. Co. v. Bershader, 258 Va. 75, 86, 515 S.E.2d 291, 297 

(1999); Richmond Metro. Auth. v. McDevitt Street Bovis, Inc., 

256 Va. 553, 558, 507 S.E.2d 344, 347 (1998); Blair Constr. v. 

Weatherford, 253 Va. 343, 346, 485 S.E.2d 137, 138 (1997). 

Because fraud must involve a misrepresentation of a 

present or a pre-existing fact, fraud ordinarily cannot be 

predicated on unfulfilled promises or statements regarding 

14 
future events. Prospect Dev. Co., 258 Va. at 86, 515 S.E.2d 

at 297; Tate v. Colony House Builders, 257 Va. 78, 82, 508 

S.E.2d 597, 599 (1999); Patrick v. Summers, 235 Va. 452, 454, 

369 S.E.2d 162, 164 (1988). Nevertheless, if a defendant 

makes a promise that, when made, he has no intention of 

performing, that promise is considered a misrepresentation of 

present fact and may form the basis for a claim of actual 

fraud.2 Richmond Metro. Auth., 256 Va. at 559-60, 507 S.E.2d 

at 348; Colonial Ford Truck Sales v. Schneider, 228 Va. 671, 

677, 325 S.E.2d 91, 94 (1985); see Blair Constr., 253 Va. at 

346-47, 485 S.E.2d at 139. 

 Under no circumstances, however, will a promise of future 

action support a claim of constructive fraud. See Richmond 

Metro. Auth., 256 Va. at 560, 507 S.E.2d at 348; Colonial Ford 

Truck Sales, 228 Va. at 677, 325 S.E.2d at 94. The rationale 

underlying this rule is plain. If unfulfilled promises, 

innocently or negligently made, were sufficient to support a 

constructive fraud claim, every breach of contract would 

 2

 In Eden v. Weight, 265 Va. 398, 578 S.E.2d 769 (2003), 

we stated that to prevail on a claim of constructive fraud, 

“misrepresentations must relate to a present or pre-existing 

fact, not statements involving promises or future events, 

unless the evidence shows an intent not to fulfill such 

promises when made.” 265 Va. at 405, 578 S.E.2d at 773. To 

the extent that this statement implies that an action for 

constructive fraud may lie if the evidence demonstrates a 

present intent not to fulfill a promise of future action, we 

overrule that statement. 

15 
potentially give rise to a claim of constructive fraud. See

Richmond Metro. Auth., 256 Va. at 560, 507 S.E.2d at 348; 

Blair Constr., 253 Va. at 347, 485 S.E.2d at 139; Lloyd v. 

Smith, 150 Va. 132, 145, 142 S.E. 363, 365 (1928). 

 We hold that the evidence was insufficient as a matter of 

law to support the verdict on the constructive fraud claim. 

Johnson failed to present any evidence that SuperValu 

negligently or innocently misrepresented a present or preexisting material fact. Instead, viewed in the light most 

favorable to Johnson, the evidence showed only that SuperValu 

and its executives made promises to Johnson that SuperValu 

would provide future financial support and assistance to MPH 

Companies.3

 Because Johnson’s constructive fraud claim was based 

solely on SuperValu’s promises of assistance to MPH Companies, 

Johnson failed as a matter of law to present an issue for the 

jury’s consideration on the constructive fraud claim. See

Richmond Metro. Auth., 256 Va. at 559-60, 507 S.E.2d at 348; 

Colonial Ford Truck Sales, 228 Va. at 677, 325 S.E.2d at 94. 

 3

 In view of our holding that the evidence is insufficient 

as a matter of law to support Johnson’s constructive fraud 

claim, we do not address the separate issue raised by 

SuperValu whether Johnson, individually, could recover damages 

for constructive fraud based on conduct SuperValu directed 

toward MPH Companies and its business operations. 

16 
Therefore, we hold that the circuit court erred in failing to 

set aside the jury verdict of constructive fraud. 

 Our conclusion is not altered by Johnson’s contention 

that SuperValu waived its present argument that constructive 

fraud may not be based on promises of future action, because 

SuperValu did not raise the issue in its motions to strike 

during trial but first made the argument in its motion to set 

aside the jury verdict. We consistently have held that while 

a motion to strike made during trial is an appropriate method 

of testing the sufficiency of the evidence, a party may also 

challenge the sufficiency of the evidence by a motion to set 

aside the verdict. Little v. Cooke, 274 Va. 697, 718, 652 

S.E.2d 129, 141 (2007); Gabbard v. Knight, 202 Va. 40, 43, 116 

S.E.2d 73, 75 (1960); see Norfolk S. Ry. Co. v. Trimiew, 253 

Va. 22, 24, 480 S.E.2d 104, 106 (1997). Either approach is 

acceptable, because in both instances the trial judge is 

presented with the same question of law, whether the evidence 

is sufficient to support a jury verdict on the claim alleged. 

Accordingly, SuperValu’s argument concerning the sufficiency 

of the evidence of constructive fraud was properly preserved 

for appeal. 

Intentional Infliction of Emotional Distress

 SuperValu argues that the evidence was insufficient as a 

matter of law to support the jury verdict for intentional 

17 
infliction of emotional distress. In particular, SuperValu 

contends that such a claim may not be based on mere “garden 

variety business decisions,” such as SuperValu’s decision not 

to lend MPH Companies additional funds when MPH Companies 

already owed SuperValu significant amounts of money. 

SuperValu further asserts this Court has never permitted a 

plaintiff to recover on a claim of intentional infliction of 

emotional distress “based solely on business dealings.” 

 In response, Johnson contends that the jury necessarily 

found that SuperValu’s actions were outrageous and that, 

viewed in the light most favorable to Johnson, the evidence 

supports such a finding. According to Johnson, SuperValu used 

its economic power to “break” Johnson. Johnson asserts that 

the jury was entitled to believe that SuperValu took these 

actions because it thought that Johnson, an African-American, 

was incapable of serving customers of a different race. We 

disagree with Johnson’s arguments. 

 In order to recover on a claim of intentional infliction 

of emotional distress, a plaintiff must satisfy four elements 

of proof. The plaintiff must show that 1) the wrongdoer’s 

conduct was intentional or reckless; 2) the conduct was 

outrageous or intolerable; 3) there was a causal connection 

between the wrongdoer’s conduct and the resulting emotional 

distress; and 4) the resulting emotional distress was severe. 

18 
Almy v. Grisham, 273 Va. 68, 77, 639 S.E.2d 182, 186 (2007); 

Womack v. Eldridge, 215 Va. 338, 342, 210 S.E.2d 145, 148 

(1974); accord Harris v. Kreutzer, 271 Va. 188, 203, 624 

S.E.2d 24, 33 (2006); Delk v. Columbia/HCA Healthcare Corp., 

259 Va. 125, 136, 523 S.E.2d 826, 833 (2000); Jordan v. 

Shands, 255 Va. 492, 498-99, 500 S.E.2d 215, 218-19 (1998). 

 As we have recognized, the tort of intentional infliction 

of emotional distress is “not favored” in the law, because 

there are inherent problems in proving a claim alleging injury 

to the mind or emotions in the absence of accompanying 

physical injury. Almy, 273 Va. at 77, 639 S.E.2d at 187; 

Harris, 271 Va. at 203-04, 624 S.E.2d at 33; Russo v. White, 

241 Va. 23, 26, 400 S.E.2d 160, 162 (1991); Ruth v. Fletcher, 

237 Va. 366, 373, 377 S.E.2d 412, 415-16 (1989). Thus, we 

have held that a plaintiff alleging intentional infliction of 

emotional distress must prove his case by clear and convincing 

evidence. Russo, 241 Va. at 26, 400 S.E.2d at 162; Ruth, 237 

Va. at 373, 377 S.E.2d at 416. 

In the present case, based on SuperValu’s argument, we 

focus our analysis of the sufficiency of the evidence on the 

question whether SuperValu’s conduct, which occurred in the 

course of its business dealings with MPH Companies, was 

sufficient to support Johnson’s claim of personal injury for 

intentional infliction of emotional distress. Johnson’s claim 

19 
involving SuperValu’s corporate conduct is uniquely different 

from our prior decisions addressing the tort of intentional 

infliction of emotional distress, because those prior 

decisions have involved allegations of conduct on the part of 

individual persons directed against other individual persons. 

 Here, viewed in the light most favorable to Johnson, the 

evidence showed that SuperValu executives sought to eliminate 

MPH Companies’ stores from the Richmond market in favor of 

other stores owned by SuperValu, while promising to assist MPH 

Companies in expanding its business to other locations. 

Johnson also presented evidence that SuperValu executives 

targeted MPH Companies for elimination because those 

executives regarded Johnson as a “complainer,” and that 

SuperValu generally appeared to “phase out” from its corporate 

relationships a large number of businesses operated by women, 

African-Americans, and persons over 40 years of age. 

 We hold that the evidence was insufficient as a matter of 

law to support a claim of intentional infliction of emotional 

distress. This tort is directed at prohibiting conduct 

intended to cause personal, emotional damage to an individual, 

rather than conduct intended to cause economic damage to a 

business. See Luddeke v. Amana Refrigeration, Inc., 239 Va. 

203, 207, 381 S.E.2d 502, 504 (1990) (stating that intentional 

infliction of emotional distress is action for personal 

20 
injury, governed by two-year statue of limitations for 

personal injuries, Code § 8.01-243.) Although a person may be 

so closely associated with the operation of a business that 

economic damage to that business may result in damage to the 

individual’s emotional state, the tort of intentional 

infliction of emotional distress does not encompass such 

personal consequences of business conduct. 

 The evidence in the present record completely failed to 

establish that SuperValu’s conduct was directed at harming 

Johnson, rather than at causing MPH Companies’ grocery stores 

to be eliminated from competition in the grocery business. 

The absence of any evidence that SuperValu intended to harm 

Johnson personally is fatal to his claim from the outset. A 

predicate requirement for any claim of intentional infliction 

of emotional distress is that the alleged harmful conduct was 

directed intentionally toward the affected individual. In the 

absence of such conduct directed at a person individually, the 

law will not recognize a claim of intentional infliction of 

emotional distress. 

 Because the evidence before us was insufficient to 

support the jury verdict on the claim of intentional 

infliction of emotional distress, the circuit court erred in 

failing to set aside the jury verdict on this claim. 

Accordingly, we hold that both the constructive fraud claim 

21 
and the intentional infliction of emotional distress claim, 

which formed the basis of the jury’s award in favor of 

Johnson, should not have been submitted to the jury for 

consideration, because the evidence was insufficient as a 

matter of law to support either claim.4

 For these reasons, we will reverse the circuit court’s 

judgment and enter final judgment in favor of SuperValu. 

Reversed and final judgment.

JUSTICE KINSER, with whom JUSTICE LEMONS joins, concurring in 

part and dissenting in part. 

 I respectfully dissent from that portion of the majority 

opinion holding that jury instruction 27 applied only to the 

actual fraud claim. While the majority concludes that the 

instruction’s use of the term “fraud” instead of the term 

“actual fraud” is not determinative, the majority’s analysis 

ignores one salient fact – jury instruction 27 referred to 

“Plaintiff’s fraud claims.” (Emphasis added.) In my view, 

the reference to “fraud claims” is dispositive of this issue. 

Generally, jury instructions are to be read together and 

viewed as a whole. H. W. Miller Trucking Co. v. Flood, 203 

Va. 934, 937, 128 S.E.2d 437, 440 (1962); Clinchfield Coal 

Corp. v. Redd, 123 Va. 420, 446, 96 S.E. 836, 844 (1918). 

 4

 Based on our holdings, we do not address SuperValu’s 

remaining assignments of error. 

22 
When reading the instructions together in this case, it is 

clear that the circuit court instructed the jury about two 

distinct fraud claims: one for actual fraud and one for 

constructive fraud. The verdict form also required the jury 

to make separate findings with regard to the claims for actual 

fraud and constructive fraud. Viewed in this context, I 

conclude that jury instruction 27 necessarily applied to both 

fraud claims. Because it uses the plural term “claims,” it 

simply cannot be limited in scope to the actual fraud claim. 

Rather than actually looking at the jury instructions as a 

whole, as required by our precedent, the majority places all 

its emphasis on the grouping and numbering of the jury 

instructions, as well as the order in which the circuit court 

read them to the jury. 

However, in doing so, the majority fails to acknowledge 

that the circuit court read to the jury several other 

instructions that were applicable to both the claim for actual 

fraud and the claim for constructive fraud, and these 

instructions were grouped in what the majority considers the 

set of actual fraud instructions. For example, the 

definitions of the terms “material fact” and “reliance” were 

numbered 24 and 25, respectively, and were read to the jury 

immediately after the definition of actual fraud and before 

jury instruction 27. Those definitions were not repeated when 

23 
the circuit court later read the instructions specifically 

referencing constructive fraud, but those definitions 

undoubtedly applied to both fraud claims. Like actual fraud, 

the definition of constructive fraud includes, among other 

things, a misrepresentation of a material fact upon which a 

person relies. Similarly, jury instruction 25 told the jury 

that “[i]n deciding whether fraud exists,” it could consider 

certain circumstances such as the parties’ “relative 

knowledge” and “their respective motives and intentions.” 

(Emphasis added.) In other words, jury instruction 27 was not 

the only instruction that pertained to both fraud claims and 

was, nevertheless, included in the so-called group of actual 

fraud instructions. 

I also disagree with the majority’s assertion that “the 

instructions regarding constructive fraud unequivocally 

informed the jury that a claim of constructive fraud may not 

be based on a promise of future action.” That statement is 

true only if jury instruction 27 is limited to the actual 

fraud claim. Jury instruction 34, titled “Fraud-Definition of 

Misrepresentation” stated, in relevant part: 

A misrepresentation is any words or conduct 

which produce a false or misleading impression of 

fact in the mind of another. The misrepresentation 

must be made concerning an actually existing or past 

fact. A promise, an expression of interest, or an 

expectation or opinion concerning the future is not 

a misrepresentation. 

24 
Jury instruction 27 did not conflict with that statement of 

law but actually amplified it by telling the jury: 

If you find that plaintiff’s fraud claims are 

premised on promises to be carried out in the 

future, as distinct from past or present facts, you 

may not make a finding of fraud merely because the 

promise was not kept. Rather, you may only find in 

favor of the plaintiff if he demonstrates by clear 

and convincing proof that at the time the 

representation was made, the defendants never 

intended to perform the future promise. 

Thus, reading the jury instructions as a whole, I conclude 

that the jury was informed that both fraud claims could not be 

premised on promises to be carried out in the future and that 

a finding in favor of Johnson could be made only if, at the 

time of making such promises, SuperValu and Richfood never 

intended to fulfill them. 

This conclusion does not end my analysis. Jury 

instruction 27 is legally incorrect since “representations 

predicated upon future events or promises cannot form the 

basis of an action for constructive fraud.” Tate v. Colony 

House Builders, Inc., 257 Va. 78, 84, 508 S.E.2d 597, 600 

(1999). However, as Johnson asserts, jury instruction 27 is 

the law of this case because it was given without objection. 

See Owens-Illinois, Inc. v. Thomas Baker Real Estate, Ltd., 

237 Va. 649, 652, 379 S.E.2d 344, 346 (1989) (“It is well 

settled that instructions given without objection become the 

25 
law of the case and thereby bind the parties in the trial 

court and this Court on review.”); accord Ulloa v. QSP, Inc., 

271 Va. 72, 80, 624 S.E.2d 43, 48 (2006); Oberbroeckling v. 

Lyle, 234 Va. 373, 379, 362 S.E.2d 682, 686 (1987). And, “if 

there is any credible evidence which clearly and convincingly 

establishes a pertinent element of the instruction, the 

verdict” must be sustained. Oberbroeckling, 234 Va. at 379, 

362 S.E.2d at 686. 

I agree with the majority’s conclusion that the evidence 

viewed in the light most favorable to Johnson showed only that 

SuperValu and Richfood made promises about future financial 

support and assistance. But, considering the law of this case 

as stated in jury instruction 27, that evidence supported the 

jury verdict in favor of Johnson on the constructive fraud 

claim. 

 SuperValu and Richfood, however, are correct that Johnson 

can recover only those damages that he personally sustained as 

a result of the constructive fraud. Because Johnson filed 

this action in his individual capacity, and not as a 

derivative action, he cannot recover damages suffered by the 

MPH Companies, which are separate legal entities.* See Keepe 

 *

 The inverse of this principle was recently decided by 

this Court in Little v. Cooke, 274 Va. 697, 708-13, 652 S.E.2d 

129, 136-38 (2007), holding that damages to individual 

26 
27 

v. Shell Oil Co., 220 Va. 587, 591, 260 S.E.2d 722, 724 (1979) 

(“The corporation is a legal person, separate and distinct 

from the persons who own it[;] and the corporation, as the 

alleged owner and operator of the business, is the person 

entitled to its profits and the person injured by the 

[alleged] wrongs.”). 

At trial, Johnson proved that he invested $827,000 of his 

own funds into the MPH Companies, but the evidence showed that 

he recouped $500,000 of that investment. The other damages 

that Johnson claimed were actually sustained by the MPH 

Companies. Thus, while I disagree with the majority and would 

reinstate the jury’s finding that Johnson proved by clear and 

convincing evidence that SuperValu and Richfood committed 

constructive fraud against him, I would reduce the amount of 

the jury’s award of compensatory damages from $15.5 million to 

$327,000, the amount that would compensate Johnson for the 

damages he personally suffered. 

For these reasons, I respectfully concur, in part, and 

dissent, in part. 

 

partners were not recoverable when the suit was brought as a 

derivative suit on behalf of the partnership.