PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and 

Kinser, JJ., and Stephenson, Senior Justice 

ANASTASIA ECONOMOPOULOS, ET AL. 

 OPINION BY 

v. Record No. 991245 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR. 

 April 21, 2000 

ANDREW M. KOLAITIS 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Stanley P. Klein, Judge 

 This case involves claims of constructive fraud, 

conversion, "intentional interference with inheritance," and 

unjust enrichment. In this appeal, the plaintiffs have assigned 

twelve errors, and the defendant has assigned one cross-error. 

These alleged errors present three principal issues, viz.: 

 1. Whether the trial court erred in finding the existence 

of a confidential relationship between a father and son. 

 2. Whether the trial court erred in striking the 

plaintiffs' constructive fraud claim. 

 3. Whether the trial court erred in striking the 

plaintiffs' claims of conversion, "intentional interference with 

inheritance," and unjust enrichment. 

I 

 By separate four-count motions for judgment, Anastasia 

Economopoulos, Aphroditi Kolaitis, and Fereniki Kolaitis (the 

Plaintiffs) sued Andrew M. Kolaitis (the Defendant). Each 

Plaintiff sought to recover $262,500 in compensatory damages and 
$50,000 in punitive damages arising from the redemption of 

certain Treasury bills. The Plaintiffs alleged conversion and 

misappropriation in Count I, constructive fraud in Count II, 

unjust enrichment in Count III, and "tortious interference with 

inheritance" in Count IV. The Plaintiffs also sought certain 

equitable relief, including the imposition of a constructive 

trust. 

 By an agreed order, the actions were transferred to the 

chancery side of the court, and the trial court consolidated 

them for trial. At the conclusion of the Plaintiffs' case-inchief, the trial court struck the Plaintiffs' evidence as to all 

counts and entered judgment in favor of the Defendant. This 

appeal ensued. 

II 

 Michael A. Kolaitis died on April 21, 1997. He had four 

children, Anastasia Economopoulos, Aphroditi Kolaitis, Fereniki 

Kolaitis, and Andrew M. Kolaitis. 

 Michael had been a businessman in Arlington County, and, 

from the mid-1960's until 1980, he operated the Parkington Sleep 

Center. In 1966, Andrew began working at the business on a 

part-time basis, and, upon his graduation from college in 1973, 

he became a full-time employee. About 1980, Andrew took over 

the business from his father, although Michael continued to work 

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part-time, and the two remained co-owners of the real property 

upon which the business was located. 

 Andrew operated the business until 1990, when the business 

property and several adjoining properties, also co-owned by 

Michael and Andrew, were sold to Arlington County for about $3 

million. As a result of the sale, Michael and Andrew's business 

relationship terminated, and, as co-owner of the properties, 

Michael netted $956,502.91. 

 Michael invested $900,000 of his portion of the sale 

proceeds in five Treasury bills: three $200,000 bills, each 

titled jointly with a daughter; a $50,000 bill titled jointly 

with Andrew; and a $250,000 bill titled solely in Michael's 

name. The Treasury bills were deposited in Michael's bank 

account, and Michael told his three daughters that he had 

invested $200,000 for each of them. 

 From April 1990 until May 1996, Michael renewed the 

Treasury bills quarterly. In 1994, Michael executed a codicil 

to his 1992 will, directing his executor (Andrew) to divide into 

three equal shares $600,000 of the Treasury bill funds and to 

pay the shares to his three daughters. 

 From about 1991 until 1996, Andrew and Michael engaged the 

same accountant, Larry D. Spring. Spring prepared their 

personal tax returns, and each was present when the other's tax 

return was discussed with Spring. 

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 On April 1, 1996, Michael signed a check, prepared by and 

payable to Andrew, in the amount of $40,000. Andrew testified 

that Michael had directed him to prepare the check and that 

Michael intended the sum as four gifts of $10,000 each to 

Andrew, Andrew's wife, and Andrew's two sons. 

 On April 3, 1996, Andrew, at Michael's request, was added 

as a signatory on Michael's First Union Bank account. Andrew, 

however, wrote no checks on that account. 

 In March 1996, at age 82, Michael was diagnosed with kidney 

disease, and he was hospitalized for renal failure several times 

between March and June of that year. During this period, 

Michael's health steadily declined. In late June 1996, Michael 

began thrice-weekly dialysis treatments, which continued until 

his death. About the same time, Michael's wife, Theresa, also 

was experiencing serious medical problems. She was diagnosed 

with cancer and underwent treatment until her death in January 

1997. 

 In May 1996, Michael, during one of his hospitalizations, 

directed Andrew to retrieve Michael's NationsBank checkbook from 

his house. On May 16, Andrew brought the checkbook to the 

hospital, and Michael instructed Andrew to prepare a check, 

which Michael signed, payable to Andrew and in the amount of 

$300,000. At that time, Michael's account did not contain 

sufficient funds to cover the check. 

4
 On May 17, 1996, while Michael was hospitalized, Andrew 

went to Michael's home and retrieved Michael's mail, including 

renewal notices for the Treasury bills. Michael, however, had 

decided to redeem all of the Treasury bills so that he would 

have control over his funds. Consequently, Michael directed 

Andrew to hold the $300,000 check until June 27, 1996, the day 

the Treasury bills were to be redeemed and the funds deposited 

in Michael's NationsBank account. Michael also directed Andrew 

to place the funds represented by the check in an account in 

Andrew's name and to hold the funds until further notice. 

Andrew did as directed. 

 In early July 1996, Michael told Andrew that he wanted 

$140,000 of the $300,000 returned to him and that the $160,000 

balance was a gift to Andrew. Consequently, at Michael's 

direction, Andrew drew two checks, payable to Michael, each in 

the amount of $70,000. Thereupon, Michael deposited one of the 

checks in a new Signet Bank account, and he deposited the other 

$70,000 check in his existing account at Chevy Chase Bank. The 

funds remained in these two accounts, subject to Michael's 

control, until his death. Upon Michael's death, the funds were 

paid to Andrew. 

 On July 11, 1996, Michael executed a new will by which he 

divided his residuary estate equally among his four children. 

By his new will, Michael also revoked all prior wills and 

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codicils. This will was admitted to probate upon Michael's 

death. 

 Throughout 1996, Michael exercised control of his various 

bank accounts and made financial decisions on his own. In 

addition to the gifts to Andrew, Michael wrote checks to 

Anastasia in July 1996 for expenses she incurred on a trip to 

Virginia to visit him. Michael also made separate gifts to each 

of Anastasia's two children, as well as a $4,000 gift to 

Anastasia. 

 In November 1996, Michael learned that Fereniki had altered 

a check he had drawn by changing its face amount. Up to that 

time, Fereniki had filled out many of Michael's checks for his 

signature. Upon learning of the altered check, Michael took 

steps to ensure that Fereniki no longer had access to his 

checkbooks. 

 In January 1997, Michael directed Andrew to take his 

financial information to Spring so that Spring could prepare 

Michael's tax returns. Andrew took the information to Spring 

and advised Spring of the gifts that Michael had made to him in 

1996. Spring then prepared gift tax returns that Michael 

subsequently signed. 

III 

 Initially, we consider the effect to be given to Andrew's 

testimony resulting from his having been called and examined by 

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the Plaintiffs as an adverse party. It is well established 

that, when an adverse party is called and examined by an 

opposing party, the latter is bound by all of the former's 

testimony that is uncontradicted and is not inherently 

improbable. Brown v. Metz, 240 Va. 127, 131, 393 S.E.2d 402, 

404 (1990); Crabtree v. Dingus, 194 Va. 615, 622, 74 S.E.2d 54, 

58 (1953); Saunders v. Temple, 154 Va. 714, 726, 153 S.E. 691, 

695 (1930). Also, under such circumstances, Code § 8.01-397 

(the so-called "Deadman's Statute") does not apply. Brown, 240 

Va. at 131-32, 393 S.E.2d at 404; Balderson v. Robertson, 203 

Va. 484, 488, 125 S.E.2d 180, 184 (1962). 

 In the present case, Andrew's testimony about the events in 

issue is uncontradicted and is not inherently improbable. 

Nevertheless, the Plaintiffs contend that these longstanding 

evidentiary rules do not apply in matters regarding confidential 

relationships or claims of fraud. They cite no authority for 

this proposition, and we are not aware of any. We see no reason 

to create this exception to these rules, and, therefore, we 

reject the Plaintiffs' contention. 

IV 

A 

 We now consider the issue raised by Andrew's assignment of 

cross-error; that is, whether the trial court erred in finding 

the existence of a confidential relationship between Andrew and 

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Michael. The existence of such a relationship would give rise 

to a presumption of fraud and shift to Andrew the burden to 

prove the bona fides of the transactions at issue. Nicholson v. 

Shockey, 192 Va. 270, 277-78, 64 S.E.2d 813, 817 (1951). 

 A parent-child relationship, standing alone, is 

insufficient to create a confidential or fiduciary relationship. 

Nuckols v. Nuckols, 228 Va. 25, 36-37, 320 S.E.2d 734, 740 

(1984); Carter v. Carter, 223 Va. 505, 509, 291 S.E.2d 218, 221 

(1982). On the other hand, we have found a confidential 

relationship to exist in a familial relationship that is 

accompanied by an attorney-client relationship, Nicholson, 192 

Va. at 276-77, 64 S.E.2d at 817, or by a principal-agent 

relationship, Creasy v. Henderson, 210 Va. 744, 749-50, 173 

S.E.2d 823, 828 (1970). We also have recognized a confidential 

relationship where one family member provides financial advice 

to or handles the finances of another family member. Jackson v. 

Seymour, 193 Va. 735, 740-41, 71 S.E.2d 181, 184-85 (1952). 

 In the present case, the Plaintiffs, in claiming that a 

confidential relationship existed between Michael and Andrew, 

rely strongly on Michael and Andrew's seventeen-year business 

association. While this association existed, such a 

relationship may have arisen. However, the business association 

ended in 1990, approximately six years before the time of the 

events at issue in this case. Therefore, Michael and Andrew's 

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former business association cannot serve as a basis for a 

confidential relationship at the time of the events at issue. 

 The Plaintiffs further assert that, after 1990, Andrew 

advised and assisted Michael in his business affairs. Although 

Andrew did assist his father in his latter years, the undisputed 

evidence shows that Michael had complete and exclusive control 

of his financial affairs up to the time of his death. 

 We conclude, as a matter of law, that the evidence fails to 

establish a confidential relationship between Michael and 

Andrew, and the trial court erred in finding otherwise. 

Consequently, the transactions at issue were not presumptively 

fraudulent, and the burden to prove fraud remained on the 

Plaintiffs. 

B 

 Next, we consider whether the trial court erred in striking 

the Plaintiffs' evidence with respect to their constructive 

fraud claim. Fraud, whether actual or constructive, must be 

proved by clear and convincing evidence. Henderson v. 

Henderson, 255 Va. 122, 126, 495 S.E.2d 496, 499 (1998). 

 A finding of constructive fraud requires proof 

that a false representation of a material fact was 

made, innocently or negligently, and that the injured 

party suffered damage as a result of his reliance on 

the misrepresentation. . . . In addition, the 

evidence must show that the false representation was 

made so as to induce a reasonable person to believe 

it, with the intent that the person would act on this 

representation. 

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Id. (citations omitted). 

 When the sufficiency of a plaintiff's evidence is 

challenged by a motion to strike, a trial court must resolve all 

reasonable doubt as to the evidence's sufficiency in the 

plaintiff's favor and deny the motion unless it is conclusively 

apparent that the plaintiff has proved no cause of action. 

Higgins v. Bowdoin, 238 Va. 134, 141, 380 S.E.2d 904, 908 

(1989); Williams v. Vaughan, 214 Va. 307, 309, 199 S.E.2d 515, 

517 (1973). When a trial court strikes a plaintiff's evidence, 

an appellate court, in reviewing the ruling, must view the 

evidence and all reasonable inferences to be drawn therefrom in 

the light most favorable to the plaintiff. West v. Critzer, 238 

Va. 356, 357, 383 S.E.2d 726, 727 (1989). 

As previously stated, there is no presumption of fraud in 

the present case because Michael and Andrew did not have a 

confidential relationship at the time of the events at issue. 

Consequently, when we view the Plaintiffs' evidence in the light 

most favorable to them, absent a presumption of fraud, we are 

compelled to conclude that the Plaintiffs failed to present a 

prima facie case of constructive fraud. To the contrary, the 

Plaintiffs' uncontradicted evidence shows that Michael intended 

to give Andrew the $160,000 and that Michael also intended to 

redeem the Treasury bills. Moreover, the Plaintiffs do not 

contend that Michael was enfeebled in mind or subjected to undue 

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influence, and, indeed, the evidence clearly shows that he was 

fully capable of managing his financial affairs and did so until 

the time of his death. We hold, therefore, that the trial court 

did not err in striking the Plaintiffs' evidence relating to 

their claim of constructive fraud. 

V 

The Plaintiffs also contend that the trial court erred in 

striking their claims of conversion, unjust enrichment, and 

"tortious interference with inheritance." We do not agree. 

 Conversion is the wrongful assumption or exercise of the 

right of ownership over goods or chattels belonging to another 

in denial of or inconsistent with the owner's rights. Credit 

Corp. v. Kaplan, 198 Va. 67, 75-76, 92 S.E.2d 359, 365 (1956). 

An action for conversion can be maintained only by the person 

having a property interest in and entitled to the immediate 

possession of the item alleged to have been wrongfully 

converted. United Leasing Corp. v. Thrift Ins. Corp., 247 Va. 

299, 305, 440 S.E.2d 902, 906 (1994). 

In the present case, the Plaintiffs were not entitled to 

the immediate possession of the Treasury bills at the time they 

allegedly were wrongfully converted. Moreover, as the trial 

court correctly noted, "the failure to renew the Treasury bills 

cannot be a conversion because, even assuming that Andrew 

Kolaitis was involved in the fact that they were not renewed, 

11
the monies from the T-bills went into an account in Michael 

Kolaitis' name." 

Additionally, as previously noted, the uncontradicted 

evidence shows that Michael intended to redeem the Treasury 

bills and to make the $160,000 gift to Andrew. In the face of 

that evidence, there could be no conversion, even if we assume 

that the Plaintiffs had standing to institute the action. 

The same analysis is applicable to the Plaintiffs' claim of 

unjust enrichment. The uncontradicted evidence of Michael's 

intent respecting the redemption of the Treasury bills and the 

gift to Andrew runs counter to any such claim. 

We also agree with the trial court that a cause of action 

for "tortious interference with inheritance" is not recognized 

in Virginia. A person who is mentally competent and not subject 

to undue influence may make any disposition of his property he 

chooses during his lifetime or by will at his death. Moreover, 

the Plaintiffs had only an expectancy in the Treasury bills 

while Michael was alive and in control of them. 

VI 

In sum, we hold the following: 

1. A confidential relationship did not exist between 

Michael and Andrew, and, therefore, there was no presumption of 

fraud. 

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2. The trial court did not err in striking the 

Plaintiffs' constructive fraud cause of action because their 

uncontradicted evidence failed to present a prima facie case of 

constructive fraud. 

3. The trial court did not err in striking the 

Plaintiffs' claims of conversion, unjust enrichment, and 

"tortious interference with inheritance." 

Accordingly, the trial court's judgment will be affirmed. 

Affirmed. 

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